UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY

 
 0.
 
 SYSTEMATICAL VIEW 
 
 ' OF THE 
 
 Of 
 
 AS TREATED OF IN A 
 
 COURSE OF VINERIAN LECTURES, 
 
 READ AT OXFORD, 
 
 BURING A SERIES OF YEARS, COMMENCING 
 IN MICHAELMAS TERM, I/7/. 
 
 BY RICHARD WOODDESON, D.C.L. 
 
 ' 
 
 Vjnerian Profeflbr, and Fellow of Magdalen College, Oxford, 
 And Counfel to that Univerfity. 
 
 i> Qeu. 
 
 VOL. I. 
 
 V 
 
 LONDON: 
 
 7RINTID FOR THOMAS PAYNE, NEXT THE MEWS-CATB, 
 CASTLE-STREET, ST. MARTIN'S. 
 
 M.DCC.XCII.
 
 c.t
 
 TO 
 
 HIS MOST EXCELLENT MAJESTY 
 KING GEORGE THE THIRD, 
 
 THIS SYSTEMATICAL VIEW 
 
 OF THE 
 
 LAWS OF ENGLAND, 
 
 SACREDLY PROTECTED AND STUDIOUSLY IMPROVED 
 UNDER HIS AUSPICIOUS REIGN, 
 
 is, 
 
 WITH HUMBLE REVERENCE, 
 
 INSCRIBED 
 BY HIS MAJESTY'S 
 
 MOST FAITHFUL AND DEVOTED 
 SUBJECT AND SERVANT, 
 
 RICHARD 
 
 6681 32
 
 SUMMARY 
 
 OF THE 
 
 VI N BRIAN LECTURES, 
 
 Begun to be read at Oxford in the year 1777. 
 
 PRELIMINARY DISCOURSES. 
 
 / , 
 
 1 F the Laws of Nature. I. y 
 
 Of civil, pofitive, or inftituted Law. II. 
 
 Of the feveral fpecies of Magiftracy. Ill, 
 
 Of the Law of Nations. IV, 
 
 Of the Laws of England, in a general view, and with refpect 
 to the various (burces from \vbrch they have been deriv- 
 ed. V. 
 
 Of the ftudy and profeffion of the Laws of England, with a 
 delineation of the plan purfued in the following Lec- 
 fcires. VJ. 
 
 A3
 
 A Summary of 
 
 I. GENERAL DIVISION. 
 
 Of the Laws as referred to Per/ons. 
 
 the Eftablimment of the fupreme Legiflature. VII. 
 'VIII. 
 Of the fupreme Executive Magiilrat*. IX. 
 
 Of Judicial 
 Magirtracy. 
 
 iwhofe proceedings conform to 
 the general Laws. X. 
 j- i. i. i 
 
 not proceeding by the general 
 Laws. XI. 
 Of the Origin of the Court of Chancery, and of 
 
 Courts of Equity in general. XII. XIII. 
 Of the civil jurifdic' lion of the Loads of Par- 
 liament. XIV. 
 
 Of inferior Magiftrates. XV. 
 
 Of the Clergy ; and of the Laws which eflablifh and maintain 
 
 the national Religion. XVI. XVII. 
 Of certain legal diftin&ions among the Subjects of the State. 
 
 XVIII. 
 Of Perfons as confidered in private and domedic Relations.' 
 
 XIX. 
 Of Corporations. XX. 
 
 II. GENERAL
 
 tie Vmrian Leftures. 
 
 II. GENERAL DIVISION. 
 
 Of the Laws as referred to Things t Or Property. 
 
 F Eftates in refpeft to the quantity of Intercft. XXI. 
 Of the tenure of Eftates. XXII . 
 Of incorporeal Hereditaments. XXIII. 
 Of the joint and contemporary ownership of Eftates. XXI V* 
 Of eftates upon Condition. XXV. 
 Of Eftates in pofieHion and expectancy, as Remainders vefled 
 
 nd contingent, and executory Devifes. XXVI. XXVII. 
 
 XXVIII. 
 Of the Title to Eftates, by Deed, by Matter <;f Record, and 
 
 by Devife. XXIX. XXX. XXXI. XXXII. 
 
 Of Perfonal Property. 
 
 Of various means of acquiring Perfonal Property. XXXIIJ. 
 Of captures at Sea. XXXIV. 
 
 Pf Title to Perfonal Property by Teftameitf, and by Suc^eflioa 
 in cafe rf Inteftacy. XXXV. 
 
 A 4 III. GENE-
 
 A Summary of 
 
 IIL GENERAL DIVISION. 
 
 Of Actions. 
 
 I. Of Criminal Projections. 
 
 F Punimments in general ; and the more general clafTcs of 
 
 temporal Offences. XXXVI. 
 
 Of Offences againft the eftablifhed Religion. XXXVII. 
 Of the ordinary modes of inflituting criminal Profecutions. 
 
 XXXVIII. 
 Of Trials by the Peers of the Realm ; and of parliamentary^ 
 
 impeachments. XXXIX. XL. 
 Of Bills of Attainder, and Bills of Pains and Penalties. XLL 
 
 ' II. Of Private Civil ARicns. 
 
 Of real and mixed Aaions. XLII. XLIII. 
 
 Of pleading in Perfonal Actions. XLIV. 
 
 Of certain kinds of Perfonal Actions. XLV. 
 
 Of Aaions of Affumpfit. XLVI. XLVII. 
 
 Of fpecial Aaions upon the Cafe. XL VIII. XLIX. 
 
 Of Aaions of Replevin. L. 
 
 Of Aaions of Trefpafs. LI. 
 
 Of Evidence. LII. LIII. 
 
 Of Incidents previous to, at, and after, Trials "by Jury. LIV. 
 
 JII. Of Suits in Courts cf Equity. 
 
 Of the praaical proceedings m Courts of Equity. LV. 
 
 Of the granting of Injunctions. L VI. 
 
 Of the performance or refcinding of Agreements. LVII. 
 
 LVIIL 
 OfteftamentaryCaufes. LIX. LX. 
 
 A SUM-
 
 tbe Vmenan Leflures. 
 
 SUMMARY 
 
 OF THI 
 
 VINERIAN LECTURES, 
 
 After the Publication of the Six Preliminary Difcourfes, printed 
 in 1783, under the Title of" Elements of jfurifprudence." 
 
 PART THE FIRST. 
 
 Of the Laws as referred to Perjbns. 
 
 DIVISION I. Magiftratef. 
 
 r \_J F the Legiflature, hiftorically coniidered, in 
 L-egiflative. < fucceeding ages. I. 
 
 (. Of the prefent Conftitution of the Legiflature. II. 
 
 C Of the King's Title, and Prerogatives, and how 
 1^ they have varied in different ages. IIL 
 
 Judicial. 
 
 r Of Courts proceeding by the general Laws. IV. 
 Of Courts not proceeding by the general Laws. V, 
 Of the Lord Chancellor, and the origiq|of the 
 
 Court of Chancery. VI. 
 Of Courts of Equity in general. VII, 
 Of the civil Judicature of the Lords in Parlia- 
 . menu VUL 
 
 Of
 
 1 A Sumir.ary of 
 
 Of the Officers of State-, and the ordinary Minifters of Ju 
 
 tice. IX. 
 Of the Officers of Pariihes and Townfhips. X. 
 
 DIVISION II. Subjeffs. 
 
 rOf the Prelates, and others hav- 
 ing fpiritual Promotion. XI. 
 
 f^e t. i r /i- i* /" j I Of the parochial Clergy. XII. 
 Of the ecclefiaftical Order < 
 
 j Of the Laws which eftablifh 
 
 and maintain the national Re 
 ligion. XIII. 
 
 
 
 I 
 
 "Alienage. XIV. 
 Of various Diftintions among the jjj itimac : 1 
 
 Infancy, and a De- 
 fect of rational 
 Underftanding. _ 
 
 Subjects of the State, confift- , 
 ing chiefly in Difabilities, and a- 
 rifing from 
 
 XV. 
 
 Of Perfons in the domeftic ~ , ,,, 
 
 Guardian and Ward. 
 
 Relations of 
 
 Of Corporations, XVIII. 
 
 Huftand and Wife. XVI. 
 Parent and Child. 
 
 Mafter and Servant, or 
 Apprentice. 
 
 XVII. 
 
 PART
 
 the Vinerian Le&ures. * f i 
 
 PART THE SECOND. 
 
 Of the Laws as referred to Things or Property. 
 
 DIVISION I. Of Real Eftates. 
 
 \^JY Eftates in refpecl: to the quantity of Intereft. XIX. 
 Of Eftates in refpeft to the quality of their tenure, and of Cuf- 
 
 toms relative to Copyholds. XX. 
 Of incorporeal Hereditaments. XXI. 
 Of Tithes. XXII. 
 
 Of the joint and contemporary Ownership of Eftates. XXIII. 
 Of Eftates upon Condition, more particularly Mortgages. 
 
 XXIV. 
 
 f rvefted. XXV. 
 
 r\c -e- n T- i \ Remainders > 
 Of Eftates in Expectancy ^ ^ contingent. XXV I. 
 
 [Executory Devifes. XXVII. 
 
 "by Defcent, and by Purchafe 
 without Deed. XXVIII. 
 
 Of the Title to Eftates 
 
 by Deed. XXIX. 
 by Mutter of Record. XXX. 
 _by Devife. XXXI. 
 
 DIVISION II. Ofperfonal Property. 
 
 Of perfonal Property in general, and of the Tide by Occupan- 
 cy, or by Invention. XXXII. 
 
 Of
 
 I ft A Summary of 
 
 Of J genCr f I transfers ofperfonal Property. XXXIIL 
 [partial J 
 
 Of Captures at Sea, by Pirates, by virtue of Letters of Repri* 
 
 fcl, and as Prize of War. XXXIV. 
 Of Tide to perfonal Property by Teftament, and by SucceA- 
 
 iion in cafes of Inteftacy. XXXV". 

 
 tbt yinerian Leftttres* t3 
 
 .^.Vfvvn 
 
 PART THE THIRD. 
 
 Of A ft ions. 
 
 DIVISION I. Of criminal Profecutionj. 
 
 Crimes and Punifhments in general ; and the Clafles of 
 
 temporal Offences. XXXVI. 
 Of Offences againft the eftablifhed national Religion, 
 
 XXXVII. 
 Of the ordinary Modes of inftituting criminal Profecutions, 
 
 XXXVIII. 
 
 Of Trials by the Peers of the Realm. XXXIX, 
 Of parliamentary Impeachments. XL. 
 Of Bills of Attainder, and Bills of Pains and Penalties, 
 
 DIVISION H.Of Privafe Civil 
 
 Of real Adions. XLII. 
 
 Of mixed Adions. XLIII. 
 
 Of pleading in perfonal Actions. XLIV. 
 
 Of various perfonal Actions arifmg ex Contrattu. XLV. 
 
 [founded on fome written Inftrument, 
 r . ' j T /i 
 
 not founded on any written Inftru-. 
 ment, XL VII. 
 
 Of
 
 14 ^ Summary (3c. 
 
 Of fpecial Actions on the Cafe for Injuries affecting the Plain- 
 tiff's Character, Safety, and Health, and other Nuifance*. 
 XLVIII. 
 
 Of other fpecial Actions on the Cafe. XLIX. 
 
 Of Actions of Replevin, and of Diftrefles. L. 
 
 Of Aftions of Trefpafs. LI. 
 
 /^r-c - f Witnefies. LIL 
 
 Of Evidence by < TT _ . . . , TTT 
 
 t Written or printed Memorials. LIIL 
 
 Of Incidents previous to, at, and after Trials by Jury. LIV. 
 
 DIVISION III. Of Suits in Courts of Equity* 
 
 Of the practical Proceedings in Courts of Equity. LV. 
 Of Injunctions. LVI. 
 
 (affected by the Statute of Frauds. 
 LVII. 
 not affected by that Statute, 
 LVIII. 
 
 Of teftamentary Caufes: LIX. 
 Of Legacies, and the Ademption of them. LX. 
 
 I. GENERAL
 
 I. GENERAL DIVISION. 
 
 OF THE 
 
 LAWS 
 AS REFERRED TO PERSONS. 
 
 > ' quern te Dens efiie 
 Jufilt, et huruaiu qua parte locatus es in re. PEKS. S*t.
 
 Of the Laws, as referred to PERSONS. 
 
 LECTURE I. 
 
 Of the antiquity of the Engli/h legiflatufe* 
 
 HA V ING * feveral years ago fubmitted 
 to public, perufal thofe difcourfes, which 
 formerly conftituted the fix firft lectures of 
 my annual courfe, I mall take the liberty of 
 referring you, gentlemen, to. that b work, as 
 containing a difcuffion of fuch preliminary to- 
 pics as I judged a proper introduction to the 
 ftudy in which we are engaged ; at the end of 
 which alfo fome account is given both of the 
 manner and general plan of the whole under- 
 taking. 
 
 I have preferved the ftile of oral addrefs to the audience in 
 the Vinerian fchooh 
 b Elem. of jurifprud. 1783. 
 
 We
 
 2 Of the antiquity of L E c T . I . 
 
 We are now to enter on the firfl general 
 head of the plan there delineated, which pro- 
 pofes to treat of the laws as referred to PER- 
 SONS. I do not affix to the word Perfons 
 its popular fignification merely, but by a me- 
 taphor, originally affumed perhaps from the 
 drama, and according to the ufe of it among 
 the Roman jurats, intend to exprefs that part 
 or character, which every man, and every fo- 
 ciety of men, is inverted with, either by 
 nature or pofitive inftitution. 
 
 Perfons therefore may be divided according 
 to their natural, and their civil, capacities. 
 We may confider them fuch as they are by 
 the law of nature, or fuch as they become 
 by the laws of civil fociety. I (hall not 
 however purfue any farther this diftinction ; 
 but mall treat of them in one view, as objects 
 of the laws of England; which, in general, 
 fecure and inforce the natural rights of in- 
 dividuals fo far as is confident with the public 
 and common welfare, and reilrain them only 
 where neceiTity requires it. 
 
 In the large fenfe I' have defcribed, Perfons 
 may well comprehend the various relations 
 and diftindtions of men in civil life. Of thefe 
 relations, that of perfons governing and go- 
 verned,
 
 LECT* i. the EngUJh legijlature. 3 
 
 Verned, or magiftrates and fubjedts, will firft 
 occupy our attention* 
 
 In my difcourfe e on the feveral fpecies 
 of magiftracy, I have confidered civil domi- 
 nion as properly diftinguimable into three 
 kinds, legislative, executive, and judicial. 
 
 Of all kinds and degrees of authority, 
 which man may exercife over man> the le- 
 giflative is the moft auguft and fupreme : as 
 I have before remarked in the fame little 
 treatife juft referred to, in which its general 
 nature and properties are difplayed. 
 
 The authors of the Parliamentary Hiftory * 
 rafhly maintain, ' that in all nations of the 
 world, hitherto known, and in all ages, the 
 laws they were governed by were firft made 
 by the advice and confent of general afTem- 
 blies, and then promulgated to the whole 
 community.' A power of legiilation, I mean 
 the authority of ifluing not only temporary 
 and occaiional ordinances, but durable and ge- 
 neral laws, is indeed, in the hands of a fingle 
 perfon, an alarming excefs of dominion. Such 
 however was undoubtedly exercifed by the 
 
 f Elem. of jur. left. III. * Vol. i. 2. 
 
 B 2 Roman
 
 4. Of the antiquity of LECT I. 
 
 Roman emperors in their Lex e Edi&alis; 
 though they avowedly claimed it by grant 
 from the people, conveyed in that inftrument 
 called Lex f Regia, and containing a formal 
 furrender of thofe liberties, which had long 
 before been in fad: extorted from them. 
 This Roman inftance of a fingle perfon hav- 
 ing the power of ena<5ting ftable and uni- 
 verfal laws, was the moft abfolute fovereignty, 
 that in any diftant age or country (for I avoid 
 fpeaking of modern times in this refpecl:) can 
 be accurately traced. In eaftern countries, 
 the antient and eflabliflied feats of defpotifm, 
 the laws, properly fo called, feem for the 
 mod part to have been immutable, by what- 
 ever authority they were originally framed j 
 and the s decrees of the monarch were chiefly, 
 perhaps, of a temporary and occafional kind, 
 and built, like royal proclamations amongft us, 
 on fome prior foundation that gave them 
 
 ' Tayl. civ. law. 
 
 f Inft. 1. i. t. 2. 6. Tayl. civ* law. Yet the aftualex- 
 iftence of any fuch inftrument is difputed. Gibb. hilt. vol. iv. 
 
 344- 
 
 t Conf. the book of Dan. c. iii. and vi. Of the two idola- 
 trous decrees referred to, the latter, which had the concurrence 
 of a great council, is fpoken of (in the Septuagint verfion par- 
 ticularly) as a firmer ordinance: or the Aflyrian monarchy 
 might be more despotic than the conlHtution of the Medes. 
 
 their
 
 LECT. i. the Englifh /egt/Iafure. $ 
 
 their validity. The antient h kings of Greece 
 (certainly in general) claimed no legiflative 
 power, nor did thofe of Rome, except the 
 laft, which contributed to his expullion '. But, 
 without any farther digreflion, it may now be 
 proper to contemplate, what more concerns 
 us, the legiflative conftitution of our own 
 country. 
 
 Amid all the darknefs in which antiquity 
 has involved this fubject, and the intricacies in 
 which it has been entangled by the prejudices 
 of fome con trover jfial writers, it feems highly 
 probable, that the age of the Britons was 
 more democratical than the Saxon times, and 
 thofe times more fo than the reigns of the 
 Norman princes. For, befides the credit due 
 to the hiflorical lights which confirm this 
 idea, there were two caufes, which muft have 
 powerfully operated to fuch effect : a fuccefs- 
 ful invafion in each inftance, and in the latter 
 the more abfolute and complete reception of 
 feudal k principles, ftrongly tended to aggran- 
 dize the fovereign and nobles at the expence 
 of the lower orders of the community. 
 
 11 Gr. de j. b. & p. 1. i. c, 3, 8, Montefq. fp. of law?, 
 i?, xi. c. 1 1. * Ibid. c. 1 2. * Elem. of jur. left. V. 
 
 B 3 Mr.
 
 6 Of the antiquity of LECT, i, 
 
 Mr. Pettyt, in the beginning of the preface 
 to his Rights of the Commons, cites out of 
 Xiphilin, the old Latin tranflator of Dio Caf- 
 fius, this pafTage, which occurs in the life 
 of'Severus, " Apud bos (Britannos) populus 
 magnd ex parte principatum tenet" The 
 fenfe of which feems fufficiently clear. Yet 
 Dr. Brady, in his anfwer to Pettyt, near the 
 beginning, infifts, that we ought to reftrain it 
 to the chief or great men. However, the 
 word A^ojca)i/7 a; i* 1 *h e original text puts 
 this matter out of doubt, fo far as the credit of 
 Dio is allowed. The expreffions of Tacitus, 
 in his life m of Agricola, which are cited on 
 the contrary fide, namely, " Erltannl olim re- 
 gibus parebantj nunc per prlnclpes faftionlbus 
 et Jiudiis trahunturj* appear evidently defcrip- 
 tive of the difpofitions of our countrymen 
 at different periods, and not to afcertain any 
 thing like a conftitutjonal form of government, 
 nor by any means to confute this very pro- 
 bable opinion, that among the Britons there 
 exifted legiflative aiTemblies of the democrati- 
 cal kind, 
 
 I come now to the Saxon sera; at which 
 time, if we give credit to a large body of 
 
 1 Dio, 1. Ixxvi. c, 12, * C. J2, 
 
 our
 
 LECT I. the Eng/ift) legljlaturc. 7 
 
 our moft learned lawyers and antiquarians, we 
 muft believe that the people bore a confi- 
 derable part in the government. In the ac- 
 count of the conventions of thofe days, the 
 people and their aflent are fometimes exprefsly 
 mentioned". The word piran, " witan," 
 (fapientes) which fo frequently occurs in the 
 laws themfelves, feems to include the com- 
 monalty, orperfons inferior to nobility, or fuch 
 at leaft as did not owe their legiflative capacity 
 to birth or pofTemons. Thus, for inftance, in 
 the preamble to the laws of king Ina, they 
 are fpoken of in addition to the ealdorman- 
 num, or great men, and are called the eldefl 
 wife men of the king's people. There is, 
 betides, mentioned the prefence of a great fo- 
 ciety or congregation of the fervants or mi- 
 nifters of God; fo that if we confine thefe 
 latter words (according to Sir Henry Spelman's 
 interpretation) p to the ecclefiaftical order, 
 there appears no occafion for retraining the 
 
 n V. pref. Ruff. Statutes and LL. Wihtraedi in procemio. 
 Wilk. LL. Anglo-Sax, p. 10. The tranflator of the Mirror, 
 in his preface, cites the following pafTage, as applied to the Saxon 
 times, " Turn demum leges -vim tt vigorem babuerunt, cum fuerunt 
 nan modo inftitutee fed firmata approbations communitatis." Ed. 
 1646. 
 
 Gallum minum pit urn. Wilk. LL. A. S. 34. alle LIJ- 
 firan. Ibid. 104. 
 
 * Gl. v. Parlamentum. 
 
 B 4 former
 
 8 Of the antiquity of LECT. r. 
 
 former expreffion alfo to the clergy. Thus 
 like wife the defcription of great, general, or 
 common council of the realm, as in the laws q 
 of king Athelftan (which are declared to be 
 made " in magna fynodo, in qua erat archie- 
 pifcopus Wulfhelmus, cum omnibus nobilibus 
 et fapientibus, quos JEtbelftanus rex congre- 
 gavit,") this, I fay, and fimilar accounts, 
 ftrongly denote an aflembly, not confifting of 
 prelates and nobles only, who in the Saxon 
 times were not, I believe, very numerous, but 
 including others, in this legiflative body, of in^ 
 ferior rank. 
 
 Sir Edward Coke cites r the leiger book of 
 an old monaftery, relating to a convention under 
 king Canute of a very mixed multitude, who 
 ^re faid to have given their aflent to an ordi- 
 nance then made in favour of that religious 
 houfe. If the credit of this monkifh an-- 
 nalift mould be impeached by fuppofed par- 
 tiality to the immunities of his own fociety, 
 the narrative may at leaft in fome meafure 
 fhew the idea traditionally received of the 
 Saxon conftitution from early times T Others, 
 
 5 Wilk. LL. A. S. p. 61. So likewife " Eadmundus re% 
 Congregavit magnamjynodum, ^f," Ibid. 72. 
 * Pref. to ix. Rep. 
 
 '44
 
 LECT. i. the Engtijh legijlature. 9 
 
 it is true, have avowed different fentiments, and 
 have thought, that in the Saxon age the king, 
 the fuperior clergy, and the nobles, held the 
 lower orders intirely in a ftate of abject vafTalage 
 and fubje&ion : but this opinion refts more 
 on poiitive afTertion than deliberate reafoning. 
 I fhall however fubjoin an argument, which, 
 though at firft fight it may feem to prove too 
 much, is not, I believe, ealily overthrown. 
 Boroughs s , or towns fending members to par- 
 liament, are unqueflionably an antient and 
 immemorial part of our conftitution, and gave 
 rife to burgage tenure, which withftood the 
 revolution occafioned by adopting the feudal 
 fyftem. I cannot pretend to affert, that bur- 
 gage tenure prevailed no where except in towns 
 fending members to parliament. But there 
 are many boroughs, the reprefentatives of 
 which now fit in the great council of the na- 
 tion, and which have been, as far as can be 
 difcpvered, of little repute fince the conqueft ; 
 and as to the antienteft of them, Sir Edward 
 9 Coke allures us, he can difcover no traces 
 when they were endued with that privilege. 
 Neither does the argument flop here: for 
 "boroughs in antient demefne, which were 
 
 Lit. 164: Pref. to be. Rep. Lamb. 
 
 Archion, p. 258, 
 
 the
 
 to Of the antiquity of LECT. i. 
 
 the eftate of the crown in the time of Ed- 
 ward the confeflbr, or of William the con- 
 queror, are exempted by immemorial ufage 
 and prefcription from the charge of fending 
 members to parliament, and of contributing 
 to their expences, as was formerly incumbent 
 on the constituents. This immunity affords 
 a plaufible prefumption, that other boroughs 
 before the conqueft, however fmall the num- 
 ber might then be, were obliged to fend 
 members ; fuch at leaft is the conclufion of 
 Lambard *, Dugdale Y , and Coke z -, and their 
 whole argument, taken together, is undoubt- 
 edly of very confiderable force ; however it 
 may thwart the opinion of many, and perhaps 
 the more general perfuafion, to the contrary. 
 Still I am fpeaking only of the fubftance of 
 the thing, not averting, that the forms or 
 the language, now familiar, were then in ufe ; 
 but conjecturing only, that in thofe days 
 laws were framed and advice given, in part, 
 by a community collected or deputed from 
 various towns and diftricts of the realm; and 
 
 * Archion, p. 259. 
 
 y Orig. jurid. c. 5. He indeed feems to rely lefs on Lam- 
 bard's reafoning, than on the laws of Edward the confeffor 
 being faid to be made, a rege, buronibus, et populo. 
 
 * pref. to ix. Rep. 
 
 that
 
 LECT. i. the EngliJJ} legijlature. 1 1 
 
 that fuch were the prcum or pitan, the elder 
 wife men of the king" s people. 
 
 We are now arrived at the age of the Nor- 
 man conqueror; which title Sir Henry Spel- 
 man interprets a to fignify the acquirer of pro- 
 perty or dominion by any other means than 
 hereditary defcent. When this invader had 
 fucceeded in his enterprize, a new face of 
 political affairs appeared - y and affumed power 
 greatly erafed the model of Anglo-Saxon li- 
 berty. The feeds of mifchief were fown, but 
 feem not to have fuddenly fprung up to 
 Strength and maturity. On the contrary, in 
 the fourth year of his reign twelve men were 
 eledted and returned out of every county to af- 
 certain the laws of the kingdom ; and though 
 perhaps the fceptre overawed their refolu- 
 lutions, and thefe advifers were permitted to 
 certify only, rather than to ordain, yet Sir 
 Matthew Hale b infifts, that this convention 
 appears to be as fufficient and effectual a par- 
 
 a Wilk. LL. A. S. 285. 
 
 b Hift. com. law, c. 5. The term " parliament " is of 
 more recent ufe, but Sir M. Hale confiders the fubftance, and 
 pot the name. It is not to be wondered at, that the cities and 
 boroughs fhould not then demand, what was confidered as a 
 burthen in moft places, Prynn. animad. 32. 
 
 2 liament
 
 12 Of the antiquity of LECT, i, 
 
 liamcnt as ever was holden in England. There 
 is alfo authentically extant c , an inftance of an 
 ordinance or ftatute pleaded and allowed, which 
 in the place referred to is fa.id to have been 
 made in a parliament of William the con- 
 queror, but indeed by the king, the arch- 
 bifhop of Canterbury, and all the other 
 bimops, and the earls and barons, without 
 any mention of the commons. 
 
 It muft not be diiTembled, that in moil of 
 the fucceeding reigns, the authority of the 
 commons, whatever it had been before, was 
 funk into unnoticed obfcurity; and that of 
 the lords was at times little exercifed as 
 a part of the legiilature, though their in- 
 fluence was fufficiently exorbitant. There 
 were indeed frequent councils or conventions, 
 at which 'the prelates and lords were prefent; 
 but it does not certainly appear, that the 
 commons, except perhaps in the reigns of 
 Henry I. d and John 6 , co-operated with them. 
 
 At 
 
 Yearb, 21 E. III. 60. a. b, 
 
 Seld. t. hon. c. v. 20. * univer/us populus," &c. at which 
 convention of H. I. laws were made. Some think (v. auth. 
 cited i Parl. hift. 5.) that this was the commencement of the 
 commons' right; but with little reafon, for this king affected tQ 
 reftore the antient conftitution. 
 
 * The prefcription m^de in the 8th year of E. II. by the 
 
 burgeffes
 
 1 E c T . i . the EngKJh legi/lature. 1 3 
 
 At conventions in the beginning of the reign 
 of Henry the third, we find mention made of 
 others who were prefent befides the prelacy and 
 nobility. But the famous flatute of Magna 
 Charta, both at its making and confirmation, 
 more refembles a federative treaty than an act 
 of the legiilature : and as to the provifions of 
 Merton, which are received as law, it is ob- 
 fervable, that of the lords, the archbifhop of 
 Canterbury, the bilhops of his province, and 
 the major part only of the earls and barons were 
 prefent ; and it is declared, " It a { provifum 
 fult & conceffum, tarn a prediffis archiepifco- 
 pis, epifcopis, comitibus, baronibus 9 quam ab 
 
 burgefles of St. .Alban's to depute two members, as they 
 had done in the time of E. I. and his progenitors, accord- 
 ing to propriety of language, carries back the prefent 
 mode of reprefentation at leaft to the reign of John. For 
 this the Parl. hift. vol. i. 4, 5. cites Seld. t. hon. 709: 
 but I have found no fuch pafTage there, though I have 
 fearched feveral editions. " R. Job. in Angliam ex Nor- 
 mannia, uf diftum eft, reverfus parliamentum fuum ufque Lin- 
 colniam convocaverat." J. Bromtoa int. x fcript. chron. 
 prope fin. [In the preface to this collection, Bromton is 
 iaid to have written as early as the reign of E. IJIj but 
 Selden de x fcript. fpeaks of his age as unknown.] It was 
 therefore at this national convention at Lincoln that K. Wil- 
 liam of Scotland " did homage " coram optimatibus utriufque 
 regni et omni populo. Knighton int. x fcript. fub. princ. 
 regni R. Joh, 
 ' St. Mert. 20 H. III. i Parl. hift. 31, 32,
 
 14 Of the antiquity of LECT. I, 
 
 ZJ&/0 rege et aliis" Near the latter end of 
 the fame reign we meet with occurrences 
 more exciting our attention. In the year 
 1264, Simon Montfort, earl of Leicefter, who 
 then held his fovereign a prifoner, caufed pre- 
 cepts to iffue in the king's name for electing 
 knights, citizens, and burgefies, much in the 
 prefent mode. The authors of the Parlia- 
 mentary Hiftory z tell us, " it will be in vain 
 to expect to find any traces of the antient 
 Englifh conftitution of parliaments from a 
 convention, fummoned at the arbitrary will of 
 a rebel, and compofed of fuch as would beft 
 ferve his purpofes, none elfe being called to 
 it." This feems a very hafly and inconfi- 
 derate way of judging. It is a plain and ma- 
 nifeft fact, that what was then tranfacted is a 
 model of the prefent fyftem. In that feafon 
 of tumult and civil confufion, it is hardly pof- 
 fible, that the fabric of the Englifh confti- 
 tution could be fuddenly invented and reared, 
 that the parliamentary boroughs could be fo 
 readily fixed upon, and that they mould be 
 generally difperfed throughout the kingdom 
 with a perplexing inequality, and not fuch as 
 
 * Vol. 5. 67. This fentiment is adopted from a very bi- 
 
 gotted hiftorian. Carte's hilt. Eng. vol. ii. 151. 
 
 can
 
 LECT. i. the En gtifo legljlature. 15 
 
 can be accounted for on the ground of party, 
 and which therefore is a corroborating proof 
 that the precepts were not iiTued according to 
 a new and arbitrary fele&ion h . If the earl 
 had not meant to reftore the antient form 
 of government, a reprefentative body of twelve 
 knights from every county, according to the 
 precedent in William the conqueror's reign, 
 would probably have better anfwered his de- 
 figns. And this would have been a popular 
 meafure, as being a great eafe to the many 
 boroughs, according to Sir Edward Coke's ac- 
 count, fallen into decay, and on which, we can 
 hardly fuppofe, the earl was at this time impof- 
 ing a new burthen *. Whatever arts were in 
 fact ufed to procure the return of reprefentatives 
 devoted to the earl of Leicefter's inclinations, 
 nothing of that fort appears in thefe precepts; 
 and they may be aptly cited to mew the anti- 
 quity of our conftitution ; which about this 
 period feems rather to have been revived, 
 than created, unlefs we fuppofe, without any 
 
 h The record does rot fpecify the parliamentary boroughs, 
 but fpeaks of them as eftabliihed and known. V. poft. 16. 
 
 1 For the charge of fending members to parliament was in 
 law confidered as a duty or fervice, and was therefore not 
 loft or abrogated, as a franchife may be, by difufe. Prynne 
 reg. of writs, 1181, 2. 
 
 pretence
 
 16 Of the antiquity of LECT. I. 
 
 pretence for it, that this whole record is a 
 mere forgery. The entry of the mandates 
 for the return of knights, citizens, and bur- 
 gefTes is in the following words k : " Item 
 mandatum ejl fingulis vice comitibus per Angliam, 
 quod venire faciant duos milites de legalioribus 
 probioribus et difcretioribus mllitlbus Jingulorum 
 comitatuum ad regem Lond. in oftab. prcediftii 
 in forma fupradifta : item in forma pradifta 
 fcribitur civibus Ebor. cfoibus Lincoln, et 
 cateris burgis Anglia -, quod mittant in forma 
 prcediftd duos de difcretioribus et legalioribus et 
 probioribus tarn ci'uibus quam burgenjibus fuis" 
 This not being the narrative of a hiilorian, 
 but the language of a record, authenticating 
 a coeval fact, ftrongly intimates, that it was 
 known and fettled what towns were boroughs, 
 otherwife there would appear fome contem- 
 porary traces of their creation. It is there- 
 fore apparent, that the reprefentative fyftem 
 was not at that time intirely a new device. 
 Had it been fo, it is not probable, confidering 
 the power of the nobles and their contempt 
 for the lower orders, that the practice would 
 have been, as it indifputably was, ihortly af- 
 terwards renewed and confirmed. It being 
 admitted then, that the fyftem was more 
 
 * Rym. feed. vol. i. 803. , 
 
 antient
 
 LECT. i* the Englifli legijlatufe. 17 
 
 antient than this earl's procedure, it follows 
 as a plaufible fuppofition, recollecting what 
 has been before faid concerning boroughs, 
 that, before the conqueft, populous cities and 
 towns deputed fome of that mixed and nu- 
 merous aflembly, which compofed the com- 
 mon council of the realm : efpecially as no in- 
 termediate period affords much colour for fuch 
 an innovation. Neither, in the interim, was 
 this polity more injured or defaced, 'than 
 might reafonably be expected from fo long 
 and unlettered a period, as had then elapfed 
 fince the Norman conqueft, and from fo lad- 
 ing a change, as that revolution mufl have 
 produced. 
 
 Three feveral parliaments were holden 
 by Henry the third, after the royal caufe 
 had triumphed in its turn, in the forty- 
 ninth, fifty-firft, and fifty-fecond years of his 
 reign. But the writs of fummons, at length, 
 are not, I believe, ! extant : it is however cre- 
 dible, that the people had a ihare in thefe 
 councils 3 for in the preamble to the ftatute 
 of Marlebridge, which was parted at the laft 
 of them, are thefe words, " convocatis dif- 
 cretioribus, ejufdem regni, tarn majoribus, 
 
 1 Not in Rymer: the reference in i Parl. hift. 71. appears 
 to be a miihke. 
 
 C quam
 
 1 8 Of the antiquity of LECT. i. 
 
 ^#<2/7z mlnoribus :" and in the preamble to 
 the ftatute of Weftminfter the firft, made at 
 the firft parliament of Edward the firft, in 
 the third year of his reign, exprefs men-- 
 tion is made of 'the aflent of the commonalty 
 of the realm. 
 
 In the eleventh year * of Edward the 
 firft, writs for the election of the knights 
 were direded to the meriffs ; and the 
 citizens and burgefles were returned by 
 virtue of a feparate authority. The firft re- 
 gular precept directed to the meriff for the 
 election of citizens and burgefles, of which 
 we have authentic memorial, is in the twenty- 
 third of Edward the firft, according to RufF- 
 head n , who is however a ftrenuous aflertor, 
 that this was the revival, and not the com- 
 mencement, of their right. 
 
 On the other hand, he affirms, that fo 
 little regard was paid to the authority of the 
 commons, that their aflent was not holden 
 eflential to the paffing of a law; and that 
 even the peers were confidered merely as 
 counfellors, or elfe relinquifhed their mare 
 of legiilation ; and that this high authority 
 was exercifed by the king and his juftices. 
 
 i Parl. hift. 87, 83. Pref. to his ed. of flat. 
 
 9 The
 
 i. E c T . i . the Eng/i/h legijlature. 1 9 
 
 The abfolute right of the commons to co- 
 operate in making laws, whatever the prac- 
 tice might be, is, as he allows, apparent 
 from the words of the fummons, which are, 
 *' ad attdiendum et faciendum et confentiendum" 
 As to a power of legiflation exercifed by the 
 king and his juftices> he adduces what is 
 called the flatute of Gavelet, made in the 
 tenth year of Edward the fecond, which 
 perhaps was only an authoritative refolution 
 of a controverfial point, and ought to be 
 confidered rather as a fentence than a law. 
 This, however, being in exclution of the 
 lords of parliament, as well as of the com- 
 mons> and happening when the power of the 
 nobles was at the higheft, can hardly be 
 thought an intended invafion of the rights of 
 the legiflature. Whatever iimilar inftances, 
 if any, can be produced, may juftly be look- 
 ed upon as violations of right, and infringe- 
 ments of the conflitution. I am fpeaking of 
 a legiilative power in our kings, independent 
 even of the lords' concurrence, which no 
 age ever recognized. Thus the author of 
 the Mirror (a treatife written in the time of 
 Edward the firft, and the fucceeding reign) 
 
 As cit. Ruff, pref, xi. n. 
 
 C 2 laments,
 
 CO Of the antiquity of LECT. i. 
 
 laments, that ordinances are made by the king 
 and his clerks only, and by aliens and others, 
 who dare not contradict the king, . but ftudy 
 to pleafe him ; and that laws are oftener dic- 
 tated by will, than founded on right. Thefe 
 complaints of that learned and upright lawyer 
 are, I apprehend, the language of one remon- 
 ftrating againft an illegal and undue exertion 
 of power, contrary to his fenfe of the efta- 
 bliilied corxftitution. There was indeed, about 
 the fifteenth year p of Edward the third, a 
 repeal, by the king's fole authority, of what 
 he had before confented to in parliament : 
 though his royal grandfather, q about fixty 
 years before, being folicited by certain of the 
 clergy to repeal the mortmain aft, anfwered, 
 that it was paffed by advice of parliament, 
 " confilio magnatum" and was not without 
 the fame authority to be annulled. It is ob- 
 fervable alfo, that the ftatute, which Edward 
 the third thus attempted to revoke, was r 
 in the fame or the following year legally 
 made void and repealed in parliament, with- 
 out any mention of the king's proclamation ; 
 which implies, that the other branches of 
 the legiflature were diflatisned with this 
 
 I Parl. hift. 264, &c. 
 
 * Ibid. 107. * Ibid. 267. 270. Ruff. ft. vol. i. 237. 
 
 ftretch
 
 L E c T . I . the Englijh legiflature. 2 1 
 
 ftretch of prerogative, and meant to avoid its 
 being brought into precedent. 
 
 The cafe is fomething different where two 
 branches of the legiflature have concurred : 
 for the king and lords fometimes feem to 
 have concluded the diffentient or unactive 
 commons. Sir Edward Coke, a ftrenuous 
 advocate for the genuine conflitution ', con- 
 tends, that provifions made by two branches 
 only of the legiflature, are ordinances and not 
 ilatutes. That a diftincTion, (not very ac- 
 curately marked or obferved) antiently fub- 
 lifted between thefe terms is certain : but it 
 gather feems to have been this, ' that ftatutes 
 were defigned for permanent law, ordinances 
 (like modern ats originally limited to a cer- 
 tain duration) were temporary experiments, 
 framed with a view to future and occafional 
 amendment. 
 
 It muft not, however, be fupprefTed, that 
 inftances are alleged u of ftatutes patted and 
 money raifed in the reigns of Edward the 
 third, Richard the fecond, and Henry the 
 
 4 inft. c. i. 
 
 i Parl. hift. 315. Ruff. pref. xiii, xiv. n. a Cro. 603,4. 
 5 Sal. 195. 
 
 Ruff. pref. ibid, 
 
 C 3 fourth,
 
 2 2 Of the antiquity of j. E c T , i , 
 
 fourth, without the commons' afTent. It i$ 
 faid likewife in Cotton's abridgment of the 
 records % that certain ordinances there re-. 
 cited pafled without the concurrence of the 
 commons. But of thefe a<fls, all, except one, 
 feem private, or judicial, reiblutions, which 
 one is a reftraint on the prerogative in regard 
 to commiffioning j uflices of the peace. And 
 that all fuch a&s, if confidered as ftatutes, 
 were mere exertions of power without right, 
 there can be little legal doubt. For betides 
 the arguments before urged, and the many 
 traces Y of the prefence of the commons at 
 the numerous parliaments of Edward the firft, 
 it is obfervable, that in the eighteenth year 
 of Edward the fecond, on a petition z to the 
 king and his council from the archbimops, 
 bimops, earls, barons, and others, to let to 
 farm their waftes belonging to their manors, 
 which they held of the^king in capite, as 
 well within forefls as out of thofe limits, 
 without the king's licence firft had, the. 
 royal anfwer was, that it could not be done 
 but by a new law, to which the commonalty 
 of the land would not aflent. The enacting 
 
 * P. 354. where there is alfo an ordinance faid to 
 by the lords and commons. 
 
 J i Part, liift. 126, . Elf. of parl. c. viii. 5. 
 
 part
 
 LECT. I. the Engli/h legiJJature. 23 
 
 part of the ftatute * of Edward the third, af- 
 terwards repealed as above mentioned, begins 
 thus : " in the firft place it is accorded and 
 allentedj that the liberty of holy church, and 
 the great charter, and the charter of the fo- 
 reft, and the other ftatutes made by our {aid 
 lord the king and his progenitors, the peers, 
 and the commonalty of the land, for the com- 
 mon profit of the people, be firmly kept and 
 maintained in all points." So in the firft 
 year of Henry the fourth, when the commons 
 k interpofed againft a judicial award of the 
 king and lords, the archbimop of Canterbury, 
 the party interefted, told them, by royal com- 
 mand, that the commons in parliament were 
 only petitioners, and that all judgments be- 
 long to the king and lords, unlefs it were 
 in ftatutes, grants of fubfidies, or fuch like. 
 
 o 
 
 This furely was a full recognition of their 
 legiflative capacity : for as to the term, " pe- 
 titioners," that, as we {hall prefently fee, re- 
 fers to the manner in which laws were then 
 pafled. It may farther be remarked, that in 
 the fixth year of c Richard the fecond, an 
 ordinance of the preceding year was an- 
 nulled, becaufe it had not the aflent of the 
 
 St. 15 Ed. III. c. i. Ruff. ft. app. 35. b 2 Parl. 
 
 hift. 50, 51. c Ruff. pref. xiv. 
 
 C 4 commons.
 
 24 Of the antiquity of LECT. r^ 
 
 commons. And even the weight and confe- 
 quence of the commons in parliament at that 
 time may in fome meafure be inferred by ano- 
 ther incident which happened about the fame 
 period. For when c the evil advifers of that 
 prince, in the tenth year of his reign, fum- 
 moned to a council of ftate at Nottingham 
 the meriffs of the adjacent counties, and tam- 
 pered with them to return fuch members as 
 the court mould direct, they boldly replied, 
 " that the people would very hardly be de- 
 prived of their antient privilege of choofing 
 their own members of parliament; and that, 
 if there was a true freedom obferved in choof- 
 ing, it would be almoft impoffible to impofe 
 any perfon againft the people's liking, efpe- 
 cially as they would eafily guefs at the defign, 
 and ftand the more refolutely on their guard." 
 But the moft explicit and memorable affirm- 
 ance of the commons' legiflative right occurs in 
 the fecond year of Henry the fifth, when d they 
 prefented a ftrong remonflrance, claiming, 
 that It ever had been their freedom, that no fta- 
 tute or law mould be made without their 
 aflent. To which it was anfwered, " that 
 the king of his grace efpecial granteth, 
 
 I Parl. hift. 432. Ruff. pref. xiv, xv.
 
 tECT. T. the Englijh legi/lature. 2$ 
 
 that from henceforth nothing be enacted to 
 the petitions of his commons, contrary to 
 their afking> whereby they mould be bound 
 without their aflent, faving alway to our liege 
 lord his prerogative to grant and deny, as he 
 fhould pleafe, fuch petitions as aforefaid." 
 
 But ftill the e manner of paffing laws being 
 by petition and anfwer, (which explains the 
 commons being called petitioners in the firfl 
 year of Henry the fourth) a dangerous power 
 was lodged in the hands of thofe who out of 
 fuch petitions and anfwers were to extract 
 and frame the new ftatute. To remedy this 
 inconvenience, about the latter end of Henry 
 the lixth's, and the beginning of the follow- 
 ing, reign, the bills were reduced, in the firft 
 inflance, into the full and complete form of 
 acts of parliament, which were prefented or 
 
 There is in the Britifli mufeum a MS. of Mr. Madox, 
 Entitled, exptditionis billarum antiquitas, fol. pp. 218. In the 
 proeme of which work, after mentioning the antient form of 
 exhibiting bills, the anfwers, and the ftatutes drawn up in con- 
 fequence thereof, the author adds, " all which is now fo exact - 
 ly done, that neither houfe can be miftaken, nor the commons 
 abufed by bills delivered in their names, which they aflented 
 not unto, nor defrauded of thofe good laws which were granted, 
 nor any law put upon them whereunto they aflented not ; all 
 which happened in former times." At the end there is a flrik- 
 ing petition and remonftrance to this effeft, of the commons, in 
 ^ E. III. but it feems nothing was done thereon, 
 
 entered
 
 26 Of the antiquity of LECT. i. 
 
 entered in this or a fimilar mode, " item qua- 
 dam petitio exhibita fuit in hoc parliamentofor- 
 mam aft us in fe continent, and fo forth; and 
 abating that flile of introduction, the method 
 ftill continues much the fame; the in tire act 
 is drawn up, and fo comes to the king for his 
 afient or rejection f . 
 
 Before I conclude this brief account of the 
 Englim legiflature through a fucceffion of 
 ages, it may be proper to mention two acfts of 
 Henry the eighth ; the former g of which gave 
 the king's fucceflbr, taking the crown as heir 
 to him or by his appointment, authority to 
 repeal, at the age of twenty-four years, under 
 certain reftridtions and conditions, ftatutes 
 made before his arrival at that time of life. 
 The other h adt conveyed a more exorbitant 
 power, authorizing the king for the time be- 
 ing, with the advice of his council, or the 
 major part of them, to fet forth proclama- 
 tions under fuch penalties as to him and them 
 mould feem neceflary, not extending to inhe- 
 ritance, offices, liberties, goods, chattels, or 
 life; which ordinances mould be obferved 
 as tho made by parliament; and if an of- 
 
 * Hal. hift. com. law, c. i. 8 St. 28 H. VIII. c. 17. 
 
 * St. 31 H. VIII. c. 8- 
 
 fender,
 
 LECT. I. the Englijh kgiflature. 27 
 
 fender, to avoid anfwering a profecutioa 
 grounded on this law, fhould depart the realm, 
 he was to be adjudged a traitor. By a fubfe- 
 quent law 1 , judgment againft offenders under 
 the former aft might be given by nine of the 
 king's council. Altho thefe ftatutes did 
 not vefl in the king a general and unreftrained 
 power of legiflation, and therefore do not 
 completely fall under the reafoning in my k 
 difcourfe on the different fpecies of rnagiftra- 
 cy, although they in fhort did not intirely 
 change the conftitution, yet they made a de- 
 ilructive breach in it ; and the repeal of them 
 all, which happened in the following reign ! , 
 muft be confldered as a very fortunate re- 
 eftablimment of the conftitutional legiflature. 
 But as fome doubt might be entertained, 
 whether the repeal was general or partial, in 
 regard to the firft and leaft obnoxious of the 
 three acts of Henry the eighth, that law, and 
 the former of thofe pafled by Edward the 
 fixth, which might feem an imperfect abro- 
 gation, are by a much later ffotute m both de- 
 clared to be determined and of no effect. , 
 
 As to the feveral ufurped powers, which, 
 amid the anarchy of the laft century, put forth 
 
 J St. 34 & 35 H.VIII. c. 23. k Elem. of jur. 51, 52. 
 1 St. i E.VI. c. u&iz. St. 240. II. 0.24. 23. 
 
 ordinances
 
 *8 Of the antiquity, &c. LECT. l. 
 
 ordinances without the authority either of a 
 king or houfe of lords, they were fo anoma- 
 lous to our confritution, as to deferve no com- 
 ment in a hiftorical treatife Q n our legal go- 
 vernment. 
 
 From this, or a more attentive review of 
 legiflative authority in different ages, it will, 
 I think, be manifeft, that the Englim confti- 
 tution has immemorially been in fubflance 
 much the fame, or has at leaft born a ftrong 
 refemblance to the prefent fyftem, although 
 its influence was impeded, and its luftre ob- 
 fcured, for near two centuries by the obvious 
 effects of the Norman invafion and tyranny. 
 It remains a venerable fabric, which has well 
 withftood the decays of time, and the ravages 
 of faction, and which would appear perhaps 
 lefs facred, if it were poffible to afcertain 
 the exact period and date of its foundation* 
 that is now flretched into indefinite anti- 
 quity.
 
 LECTURE II. 
 
 Of the conftituent parts, and colletfive capacity, 
 of the Briti/h parliament. 
 
 HAVING in the preceding lecture 
 taken a hiftorical view of the Englifh 
 legiflature in different ages, I propofe in the 
 prefent difcourfe to treat of the British par- 
 liament, in refpect as well to its conftituent 
 parts, as its collective capacity. 
 
 The effential parts, of which this fupreme 
 court confifts, are, the king in his legiflative 
 character, and the three eftates of the realm, 
 namely, the lords fpiritual, the lords temporal, 
 and the commons of Great Britain. 
 
 I. As to the king's voice in legiflation, (for 
 of his executive powers I mail fpeak in the 
 next lecture) the royal aflent appears to have 
 been always neceflary to conftitute a new law, 
 and to give as it were life and operation to the 
 refolutions of the two houfes of parliament. 
 The king's negative voice alfo, though it hath 
 
 not
 
 I 
 
 30 Of 'the conjlituetlt parts, 6fc. LECT. 2* 
 
 not been exerted for a long period, is flill, I 
 apprehend, conftitutionally free and abfolute, 
 to be.employed as the fovereign in his difcre- 
 tion (hall think fit* It was a very inconfiftent 
 temerity in thofe % who at the fame time al- 
 lowed, that nothing could become a law with- 
 out the king's affent, and yet maintained, that 
 he was bound to pafs bills prefented to him* 
 For as to the fitnefs of the bills fo prefented, 
 it is only begging the queftion* Without 
 this complete authority the luftre of the 
 crown would be vifibly impaired: and the 
 majefty of executive government, if it was 
 not rebelled againft, would at leaft lofe that 
 awe and veneration, which good fubjects 
 ought to entertain for the fovereign dignity. 
 But the leghlative function of our kings is 
 not of the deliberative kind. It confifls not 
 in devifing expedients, in altering or amend- 
 ing, or in conditional affent or diflent. The 
 antient mode, invariably purfued, of paffing 
 laws, namely by petition and anfwer, feems to 
 afford a conftitutional argument againft the 
 king's deliberative interference in legislation. 
 He is fimply to rejecl: or approve. He may 
 indeed reprefent grievances proper to be re- 
 
 ift. 460. 
 
 drefied;
 
 L E c T . 2 . cf the Brttijh parliament. 3 1 
 
 drefled ; but the modification of the remediei 
 mutt be left to the confutations of the two 
 houfes. For it would have a dangerous ten- 
 dency and influence, if the king were from the 
 throne to recommend what laws ought to be 
 palTed, like the Roman emperors b , from the 
 time even of Auguftus, whofe Orationes were 
 the exaft pattern to which the Senatufcon* 
 Julta were to conform. 
 
 It may not be improper to take occafion 
 here to mention, when the king is bouT.d by 
 an aft of parliament, as this may be a reafon 
 for his withholding of his aflent, the general 
 rule laid down is% that the king's rights mall 
 not be barred or retrained by any ftatute, un- 
 lefs he be fpecially named. But if the word 
 " king" be ufed of him in his politic capa- 
 city, this d extends to all his fucceflbrs, and 
 to a queen, if the crown clefcend to a female 
 heir. And adls for the advancement of reli- 
 gion, providing for the poor, and the preven- 
 tion of wrong, are e mentioned as exceptions, 
 where the king is bound, altho not nam- 
 ed : but this furely is opening a very uncertain 
 latitude. In fuch cafes, I prefume, he may 
 
 * Grav. dc ort. Sc progr. jur. civ. 118. < Plowd. 240. 
 
 * 6 Co. 27. a. 1 2 Co. 109. 2 Inft. 68 1 . Str. 5 16, &c. 
 
 be
 
 32 Of the conftituent parts, efr. LECT* 2; 
 
 be precluded of fuch inferior claims as might 
 belong indifferently to the king or to a fub- 
 jecl:, as the title to an advowfon or a landed 
 eftate, but not ftripped of any part of his an- 
 tient prerogative, nor of thofe rights which 
 are incommunicable; and are appropriated to 
 him as effential to his regal capacity f . 
 
 II. The fecond branch of the legiflature is 
 the lords fpiritual and temporal. 
 
 The two archbimops, and all the bimops, 
 of England and Wales, have e a right ex de- 
 bito jujlitite to be fummoned to every parlia- 
 ment : which fame right antiently h belong- 
 ed to all fuch abbots and priors as held by an 
 earldom or a barony. But a grant of Henry 
 the eighth to the abbot of Taviilock and his 
 fucceffors, (which preferment was of the 
 king's patronage) to be lords fpiritual of par- 
 liament, is efteemed void by Sir Edward 1 Coke j 
 becaufe that abbot did not hold per baronlam j 
 and fince the conquefl abbots fate by vir- 
 tue of tenure only ; tho it is infifred, as I 
 
 fhall hereafter k mention, that bimops fit in a 
 
 ^iibw i *. 
 
 * Str. 518. * 4lnft. i. ft Elf. c. i. * 4 Inft. 
 
 45. Y. Seld. t. hon. c. v. 23. k Left. XI. 
 
 double
 
 2. of the Britljh parliament. 33 
 
 double capacity, as barons, and in refpeft to 
 their high fun&ion as governors of the 
 church. 
 
 ' The lords fpiritual, and the lords temporal, 
 are commonly fpoken of, amongft lawyers, 
 as two of the eftates of the realm *, but who 
 may more properly be faid jointly to form one 
 eftate. Thus king * James the firft, in the 
 eighteenth year of his reign, declared, that the 
 parliament confified of the monarch, and the 
 two eftates, namely, lords and commons. It 
 is indeed ufual in parliamentary records to 
 fpeak of the king and the three eftates of 
 the realm : and in the m twenty-firft year of 
 the reign of Richard the fecond, many or- 
 dinances were annulled, becaufe the ftate of 
 the clergy were not prefent in parliament at 
 the making of them. But that was a time of 
 great confufion ; and the predominant party 
 was ready to feize any pretext for ridding 
 themfelves of fuch ordinances as they dif- 
 liked. On the other hand, JSir Edward * 
 Coke infifts, that if a ftatute is pafled by the 
 king, the lords fpiritual, and commons,, (omit- 
 ting the temporal lords) this is an ordinance, 
 
 1 i Rufti. coll. 2i. m Gibf. cod. t. r. c. 6. 
 
 5 . 
 
 D anj
 
 34 Of the conjlltuent parts, &c. L E c T . 2 . 
 
 and no aft of parliament. But in the feventh 
 year of Henry the eighth, it was holden, that 
 the prefence of any fpiritual lord is not ef- 
 fential to conftitute a parliament $ and the 
 reafon given is, that bifhops have no place 
 in parliament by means of their fpiritual func- 
 tions, but only in refpect of their temporal 
 pofTeflions or baronies. Now if this rea- 
 foning be valid to prove their prefence not 
 indifpenfably neceflary, it feems of exadtly 
 equal force to mew, that the prefence of 
 any merely temporal lord is not eflential to 
 the holding of a parliament, iince the bi- 
 fhops, according to the argument, fit there 
 by right of their baronies only. But the 
 lords fpiritual and temporal may, according to 
 king James's authority, be confidered as one 
 joint or indifcriminate eftate of the realm in 
 this refpedl, namely, that tho both thefe 
 illuftrious orders are entitled to be fummoned, 
 yet the majority would, I apprehend, clearly 
 bind the reft diiTentient, tho fuch majo- 
 rity mould happen to conlifl: either entirely 
 of prelates, or entirely of lay nobles. This 
 may be fufficient for the prefent to obferve 
 of the fpiritual lords as members of the legif- 
 
 Keilw. 184. b. v. 1 Black, comm. 156. n. 
 
 lature :
 
 tECT. 2. of the BritiJJ} parliament. 35 
 
 lature : I mall have occafion to fpeak of them 
 again hereafter, and alfo of their judicial ma-* 
 giftracy and courts. 
 
 The temporal lords alfo, namely, dukes, 
 marquiffes, earls, vifcounts, and barons, be- 
 ing of full age, have a right p ex debito juf- 
 tititf to be fummoned to every parliament. 
 
 Befides thofe, who now conftitute this au- 
 gufl aflembly, there appears antiently to have 
 been* 1 another clafs of nobility, called Banne- 
 rets, who being fummoned fate in parliament 
 for life, or perhaps only as often as the fum- 
 mons was repeated, but had no inheritable 
 dignity. For Mr. Elfynge r is of opinion, that 
 a writ of fummons alone did not convey an 
 inheritable title td a peerage, but that fuch 
 right was to be obtained or perfected by a 
 ceremonious creation or inveftiture, as the 
 putting on of robes, or the like ; which 
 perhaps required the confent of the other 
 lords, or fome of them. The fame writer 
 alfo holds it to be an erroneous opinion, that 
 there ever were barons ratlone tenure? only, 
 or that a flranger in blood, purchafing a ba- 
 
 p 4 Inft. i. 
 
 * Elf. of par!, c. L 8. Seld. t. hon. c. v. 25. 
 
 * Elf. ibid. 
 
 D 2 rony,
 
 3 6 Of the conftituent parts, & c . L c T . 2 1 
 
 rony, that is, a caille or lands fo diftinguifh- 
 cd, tho with the king's licence, had a feat 
 in parliament. According to this author 
 therefore, (who was clerk of the parliament, 
 and a diligent refearcher into the records) 
 thofe, who came by virtue of a fummons 
 merely, held at moil their high flation but 
 for life j thofe, who had been created and in- 
 verted barons, conveyed the dignity to their 
 heirs in tail. And it is faid s , that nobility 
 may be exprefsly granted for term of life, 
 tho not for years, becaufe it would then 
 go to executors or adminiftrators by the or- 
 dinary courfe of law. But for fome ' centuries 
 the moft ufual way of creating temporal lords 
 of parliament has been by letters patent, 
 which have almoft conftantly limited the 
 courfe of defcent to the heirs male of the 
 body of the anceftor firft ennobled, Thefe 
 words regularly create an eflate tail. But if 
 they are ufed without the mention of any 
 place annexed to the title, in the creation of 
 a new dignity, it has been holden % that the 
 grantee has not an eflate tail, but a fee fimple 
 conditional, forfeitable for felony, yet de- 
 fcendible only to the heirs of his body. The 
 
 i Inft. 16. b. Seld. t. hon. c. v. 
 
 * j Inft. 9. b. 16. b. 13 ed, 12 Co. $. 
 
 eflate
 
 LECT. 2. of the Britijh parliament. 37 
 
 eftate w tail in a peerage cannot be alienated, 
 nor barred by levying a fine, nor furrendered 
 to the king. By far the geateft part of the 
 prefent titles of nobility are founded on x let- 
 ters patent, limiting the fucceflion in the 
 manner above mentioned : the reft depend, 
 in general, on antient writs of fummons, ac- 
 companied (if the opinion before laid down 
 be authentic) with the inveftiture of the an- 
 ceftor from whom the right is originally de- 
 rived. Thefe latter titles are inheritable in 
 fee tail, that is, to the heirs of the body, with- 
 out diftu<5tion of fex, not being confined to 
 jhe male line 7 . But z if a man is created an 
 carl and baron by letters patent, limiting 
 jthe fucceffion jto the heirs male of his body, 
 his eldefl fon, as hath been pra&ifed in 
 
 Sho. parl. ca. i. 
 
 * The order of precedency now^epecds, among thofe-of the 
 fame degree, on the time of creation ; and the ting cannot, as 
 formerly, create a new earldom with precedency above thofe of 
 antienter date. St. 31 H. VIII. c. 10. 7.' Stand, ord. (8vo. 
 ed. 1748) 70, j&c, 
 
 * Sir Edward Coke fays (i Inft. 16. b.) that one called 
 generally by writ, hath a fee fimple in the barony : but this is 
 underftood to be an error. There are properly no fee fimple 
 peerages by the Englifh law ; every claimant (except perhaps 
 in the inftance of the earldoifl of Arundel) muft be defcended 
 from the perfon firft ennobled. It is faid to be otherwife as to 
 fome Scotch peerages, that they may be inherited by the heir 
 male of an anceftor of the firlt peer. 
 
 z Cafe of the claim to the barony of Sidney of Penlhurft 
 idifallowed. Houfe of lords, 17 June 1782. 
 
 D 3 the
 
 3 8 Of the conjlltuent parts, &c. L E c T . 2 , 
 
 the prefent and former ages, is called up by 
 the king's writ to the houfe of lords, by his 
 father's baronial title, this will not enlarge 
 the courfe of fucceflion to fuch barony, fo 
 as to make a female capable of inheriting. 
 The duke of Norfolk (and he only) a hath 
 his earldom of Arundel by prefcnption. 
 
 It has been b refolved by the lords, in the 
 cafe of the duke of Hamilton and Brandon, 
 that no patent of honour granted to any peer 
 of Great Britain, who was a peer of Scot- 
 land at the time of the union, mould en- 
 title him to fit in parliament. This dodlrine 
 was adhered to in the following c cafe. The 
 duke of Queeniberry's fecond fon was created 
 earl of Solway in Scotland, when an infant $ 
 
 * i Bui. 196. Qu. therefore, if this is not a lingle ex- 
 ception to the general rule, and a peerage in fee fimple. 
 
 b 20 Dec. 1711. I Wms. 583. 
 
 c i Wms. 582, &c. Tn this cafe two curious quefHons were 
 agitated by two lords, educated in the profeffion of the law, lird 
 Cowper maintaining that the king cannot create a man a peer 
 againft his will, becaufe it might then be in his power to ruin any 
 perfon, whofe eftate and circumftances might not be fufficient 
 for that honour; and that a minor might waive, when of age, a 
 peerage granted to him during his infancy ; and lord Trevor af- 
 ferting the contrary of thofe pofitions, becaufe the king had a 
 right to the feivice of his fubjeds in any ftation he thought pro- 
 per, and might fine them toties quoties for neglediing to attend. 
 
 and
 
 L E c T . 2 . of the Britifh parliament. 3 9 
 
 and afterwards the duke was created duke of 
 Dover, with remainder to fuch fecond fon, 
 and fat in two parliaments under this creation. 
 But upon his death it was objected, and fo 
 refolved by the lords, that the Scotch earldom 
 of Solway incapacited the then claimant from 
 taking the dukedom of Dover by virtue of 
 fuch remainder. Thefe refolutions are now 
 overruled. The d peerage of Brandon has 
 been again claimed $ when it was ingenioufly 
 urged, that e even fuppofing the former de- 
 cifions to fland, flill the patent was not void, 
 the incapacity to lit in parliament was only 
 perfonal in the then duke, and his heirs in 
 tail male were entitled to the peerage of Bran- 
 don with all its riehts. The matter, how- 
 
 
 
 ever, was confidered in a more general view. 
 For it is entered as follows : " after hearing 
 counfel, as well yefterday as this day, upon 
 the petition of Douglas duke of Hamilton and 
 Brandon to his majefty, praying a writ of 
 fummons to parliament by the title of duke 
 of Brandon, the following queftion was put 
 
 d Cafe of the duke of Hamilton's claim to the dukedom of 
 Brandon, adjudged in the houfe of lords 6 June, 1782. 
 
 They feem to clam not only with the tacit admiffion of the 
 firftduke of Dover, but with the exprefs refolutions, 21 and 22 
 Jan. 1708-9, declaring the right of elefting the fixteeii, and 
 what was thereupon done, as Hated in the printed cafe. 
 
 D 4 to
 
 40 Of the cwjlituent parts, &.c. L E c T . 2 , 
 
 to the judges; Whether by the twenty- third 
 article of the f ad: of union, which declares 
 all peers of Scotland to be peers of Great 
 Britain, with all the privileges enjoyed by the 
 peers of England, except the right and pri- 
 vilege of fitting in the houfe of lords, and 
 the privileges depending thereon, the peers 
 of Scotland be difabled from receiving, fubfe- 
 quently to the union, a patent of peerage of 
 Great Britain, with all the privileges ufually 
 incident thereto : the lord chief baron of the 
 court of exchequer delivered the unanimous 
 opinion of the judges prefent upon the faid 
 queflion, that the peers of Scotland are not 
 difabled from receiving, fubfequently to the 
 union, a patent of peerage of Great Britain, 
 with all the privileges ufually incident there- 
 to :" whereupon a report was ordered to be 
 prefented to his majefty, certifying, that the 
 faid duke of Brandon is intitled to his writ of 
 fummons. 
 
 The principal diftinct privileges of the lords 
 of parliament, applied to them as individuals, 
 are, the right of being tried, in accufations of 
 treafon, felony, and mifprifion of either of 
 
 f 5 A. c. 8. explained by 6 A. c. 23. 
 
 thofe
 
 2, of the Briti/b par/iamenf. 41 
 
 thofe crimes, by their peers, (of which trials I 
 fhall fpeak at large hereafter) that of nomi- 
 nating a certain number of chaplains, and 
 that of appointing proxies to attend and acl: 
 for them in their legiflative function, and on 
 other occafions, but z not when they fit to ex- 
 ercife judgment. 
 
 The appointment of proxies is very antient; 
 2nd, it feems, this delegated authority was 
 fometimes given to perfons, who were not 
 members. But now all proxies from a h fpi- 
 ritual mall be made to a fpiritual lord, and 
 from a temporal to a temporal lord : no 
 lord mall be capable of receiving more than 
 two proxies : and * a lord voting in a queftion 
 muft vote as proxy, if proxies are called for. 
 Proxies k are now made by the king's licence : 
 which does not appear to have been hereto- 
 fore neceffary, unlefs the writ of fummons 
 contained an exprefs requifitipn .not to, ap- 
 pear by deputy. It has been l made a quef- 
 tion, if a proxy be given to two or more 
 lords, and they differ, whofe voice mall frand; 
 
 8 Stand, ord. houfe of lords, n June 1689, and 15 March 
 1697, 8vo. ed. 1748. 
 
 h Elf. c. 5. Ord. 25 Feb. 1625, ibid. Ord. 
 
 II Feb. 1694, ibid. k Elf.c. 5. ' Ibid. 
 
 which
 
 42 Of the conftituent parts, &c. L E c T , 2 . 
 
 which is faid to have been refolved by the earl 
 of Manchefter, lord prefident of the council, 
 in favour of him, who is firfl named in the 
 delegation, and prefent. But according m to 
 Sir Edward Coke's authority, if three are 
 proxies of the fame lord, and all prefent, 
 and one is content that a bill pafs, and the 
 other two are not content, this is no voice $ 
 that is, I prefume, a mere nullity, of no effecl; 
 on either fide. 
 
 One ufe of appointing proxies was to efcape 
 the amercements for omitting perfonal at- 
 tendance. Herein the antient fpirit of the 
 Englifh conftitution is juftly obfervable, by 
 which every new law is confidered as the acl: 
 of the whole community. In the one houfe 
 all the commons of Great Britain appear by 
 their reprefentatives, and every member of 
 the other is by law ftridtly obliged to appear 
 in perfon or by proxy, the lords being fup- 
 pofed to have diftindl interefts, and to main- 
 tain the due gradation between the king ancl 
 people. 
 
 By the twenty-fecond and twenty- third ar- 
 
 m 4 Irift. 12, 13. 
 
 ticks
 
 IECT. 2. of the Britijh parliament* 43 
 
 tides of the union, ratified by the aft of 
 union, the peerage of Scotland are to " ele<5t 
 fixteen of their number to fit in the Britifh 
 houfe of lords -, and other not elected peers 
 of Scotland are to become peers of the united 
 kingdom, and to have all the privileges as 
 fuch, except a feat in that afTembly. 
 
 Having mentioned the conflituent and ef- 
 fential members of the houfe of lords, I 
 muft add, that others may attend there with- 
 put the right of fpeaking or voting. And 
 ftrft, the chancellor or keeper of the great 
 feal, tho his dignity and precedence are fo 
 exalted, arid tho he p is the regular and ac- 
 cuftomed fpeaker of this houfe, yet unlefs he 
 has alfo a bifhopric or temporal peerage, hath 
 no right to debate, (except perhaps to a point 
 of practical ordeV and regularity in proceed- 
 ing) nor to vote in this aflembly. There are 
 befides other attendants and afliftants to the 
 lords, who have no voice except when called 
 
 n Soon after the union, the houfe of lords refolved, that a 
 peer of Scotland, claiming to fit, and now fitting, in the Britifh 
 houfe of peers, by virtue of a patent after the union, is not en- 
 titled to vote in this election. Lords' Journ. 21 Jan. 1708-9. 
 This exclufion in practice has been con (trued to extend to fuch 
 of the defcendants of the then peers of Scotland as accept Bri- 
 tim peerages ; but as to them the matter is likely to be again 
 dffcufled. 
 
 Fort. 165. f Elf. 152. 
 
 upon
 
 44 Of the conftituent parts, &c. LECT. 3, 
 
 upon for their advice in matters of law, or 
 the like, but never any decifive vote or con- 
 trol. Such q are the judges of the fuperior 
 courts of law, the fecretaries of ftate, the 
 king's ferjeants at law, the attorney and foil- 
 citor general, and the matters in chancery, 
 who are particularly neceflary as being ufually 
 employed on meflages to the houfe of com- 
 mons. Thefe, it feems, all ought to have a 
 regular fummons : the officers of the houfe, 
 as the clerk of the crown, the clerk of the 
 parliament, the gentleman ufher, and others, 
 have conftantly attended by reafon of their re- 
 fpedtive flations, without fuch exprefs requi- 
 fition. 
 
 III. I am now to fpeak of the third branch 
 of the legiflature, the commons of Great Bri- 
 tain, confifting of the knights, citizens, and 
 burgefles, refpeclively deputed from the coun- 
 ties, cities, and boroughs of the united king- 
 dom j the number of reprefentatives for Scot- 
 land being fettled by the before-mentioned 
 a6t of union. The election of the citizens 
 and burgefles, as well as of the knights, is 
 
 Elf. 4. He mentions alfo the king's privy counfellors, 
 and his learned counfel : that is, being ferjeants at law. i Black. 
 comm. 168. 
 
 made
 
 LECT. 2. of the Britijh parliament. 4^ 
 
 made in confequence of a writ directed to the 
 merifF, the great executive officer of the 
 county. The forms of original writs out 
 of chancery, called in this refpedl officina 
 brevium, directed in the king's name, and for 
 the moft part to fheriffs of counties, are in- 
 variable ; and if fo, a fortiori, as Sir Edward 
 Coke r argues, the form of this writ, which 
 is of the higheft importance, can receive no 
 addition or alteration, except by aft of parlia- 
 ment. Yet other writs, of lefs confequence* 
 have naturally been lefs liable to adulteration; 
 and this has undergone fome changes, tho 
 3 it is not clear by what authority. By the 
 prefent form of the writ, the fherifF is in- 
 joined " that proclamation being made of 
 the day and place, in the next county court 
 holden 'after the receipt of the writ, two 
 knights of the moft fit and difcreet of the 
 faid county, girt with fwords, and of every 
 city of the faid merifFs county two citizens, 
 and of every borough in the fame county two 
 burgefles, of the moft fufficient and difcreet, 
 freely and indifferently by thofe who at fuch 
 proclamation mould be prefent, according 
 
 * 4lnft. 10. Ibid. Elf. c. i. 15. 
 
 to
 
 46 Of the conjlituent parts, &c. LECT. 2; 
 
 to the form of the ftatutes in that cafe made 
 and provided, the faid fherifF mould caufe to 
 be ele&ed." Thus the qualifications of the 
 perfons to be eledted are exprefTed in general 
 terms, with a reference however to the fta- 
 tutes arresting this fubjecl:; The ftatute 23 
 Hen. VI. c. 14, ordains, that the reprefenta- 
 tives of counties mall be knights, or otherwife 
 fuch ' notable efquires, gentlemen of birth, as 
 are able to be knights. The flatute 9 Anne^ 
 c. 5, requires that every knight of a fhire 
 fhall have a freehold or copyhold of the an- 
 nual value of . 600, and every citizen> bur-' 
 gefs, and baron of the cinque ports, a like 
 eftate of the annual value of . 300, for their 
 own lives refpe&ively, at the leaft, otherwife 
 the return to be void ; provided that this mail 
 not exend to make the eldeft fon or heir ap- 
 parent of any peer, or lord of parliament, or 
 of any perfon qualified by that aft to ferve as 
 knight of a fhire, uncapable of being elected 
 a member of that houfe; provided alfo, that 
 the reprefentatives of the two univerfities 
 may be elefted as before the paffing of that 
 law. By the common u law, aliens, deni-* 
 
 1 Which French word dean Tucker tranflates refpefiable* 
 On Gov. 342. n 4 Inft. 47. 8 Ander. 293. 
 
 zens,
 
 1 E c T . 2 . of the Brltifh parliament. 47 
 
 zens, and perfons attainted or outlawed, can- 
 not be elected to ferve in parliament. Cler- 
 gymen are alfo faid to be excluded ; but the 
 * authorities to prove it are books prior to the 
 federation; about y which time they (that is 
 the beneficed clergy) gave up the right of 
 taxing themfelves (which tax always z required 
 the fupplemental confirmation of parliament) 
 and received * (that is the beneficed clergy) as 
 a compenfation, though a very inadequate one, 
 the privilege of voting at county elections. 
 It has of late years been b determined, that 
 deacons are eligible to parliament, leaving 
 
 * 4 Inft.47. Mo. 783. r 2 Burn, cccl. law, 27. 
 
 z 2 Burn, eccl. law, 22. * 2 Burn, eccl. law, 27. 
 
 b Newport cafe, 2 Luders on eleft, 269, &c. In that cafe 
 
 it was argued, that deacons are not fo much as voters for proc- 
 tors to the convocation, and therefore difHnguifhable in that 
 refpeft from priefts. The truth is, fuch right of voting for 
 proftors is confined to parfons, vicars, and perpetual curates. 
 2 Burn, eccl. law, 24. Therefore priefts alfo, being unbene- 
 ficed, have no vote. On the other hand, a deacon, before the 
 ftatute 13 & 14 Ch. II. c. 4. $ 13. was capable of inftitution and 
 induction, and might have hoiden a benefice with cure, at lead 
 for a year, without prieft's orders. Watf. c. 14. Confequently 
 the right of electing thefe proftors depends on preferment, and 
 not on the diftinft orders of deacon or piieft. The characters 
 of deacon and prieft (as was urged in the cafe) are both inde- 
 lible, not to be fhifted off at pleafure. To admit the legal ca- 
 pacity of deacons therefore to lit in parliament very much nar- 
 rows the ground for excluding priefts. Suppofing fome of fuch 
 priefts to be returned members alfo to convocation, are not all 
 bifhops members likewife of that fynod ? 
 
 7 the
 
 48 Of the conftituent fart s, G?c. LECT. 2* 
 
 the queftion undecided as to priefb. In fome 
 refpects there c feems a propriety, that a li- 
 mited number (as from certain cathedral bo- 
 dies) of the clergy, priefts, and deacons indif- 
 criminately, but profeffedly fuch, mould fit 
 as well as be electors, fmce one right feems a 
 natural confequence of the other, fince the 
 houfe of commons mould be conftituted from 
 all the refpectable orders of citizens, and 
 the canons d made in convocation are not 
 general laws, nor binding on the laity. 
 
 Aliens, e women, and minors under the ag 
 of twenty-one years, are difqualified from be- 
 ing electors by the common law. Neither 
 f were minors eligible ; and their incapacity 
 to vote, as well as to be elected, is declar- 
 ed by a ftatute g of William the third; if 
 they are returned, fuch return mail be void ; 
 and if they prefume to fit, they {hall incur 
 the fame penalty as if they had not beei* 
 chofen and returned. This law perhaps may 
 be thought rather defective: for it remains to 
 be inquired, what penalty is here afcertained, 
 
 c 3 Parl. hift. 274, &c. ^8^.1057. e 4lnft. 
 
 4,5. Str. 1115. f 4lnft. 47. 87&8W.III. 
 
 c. 2 
 
 . 
 
 and
 
 L E c T . 2 . of the Eritifo parliament. 49 
 
 and what tribunal is to judge and pronounce 
 fentence : in thefe points fome difficulties 
 would be likely to occur. But to proceed 
 with other ftatutes : by the i G. I. c. 56. 
 thofe, who have penfions from the crown in 
 their own name, or in truft for them, are in- 
 capacitated: and by the 15 G. II. c. 22. the 
 fame difability is affixed to a long lift of offi- 
 cers and placemen. Thefe difqualifications 
 have rarely, if ever, produced any litigation 
 refpecting the validity of an election. The 
 too common objection, that is made to perfons 
 returned to fit in parliament, is an imputa- 
 tion founded on the laws againft bribery and 
 corruption. If fuch uridue influence is charge- 
 able on the candidate, it directly renders the 
 return unavailable as to him : otherwife, if 
 fuch agency appears, as cannot be fatisfadtorily 
 proved to be done with the concurrence of 
 the candidate, as principal, it only vitiates the 
 votes objected to, and eventually, according to 
 their number, affects the return. By the flat. 
 i H. V. c. i . knights of mires, and thofe who 
 elect them, were to be refident within their 
 refpective counties on the day of the date of 
 the writ of fummons, and citizens and bur- 
 gefTes were to be relident, dwelling and free 
 in their refpective cities and boroughs. It is 
 
 E not
 
 50 Of the conjlituent parts, &c. LECT. 2. 
 
 not very flrange, that a law of fuch general 
 inconvenience and reftraint fhould have fallen 
 into neglect. But to obviate any doubts, 
 the ft. 14 G. III. c. 58. reciting that this 
 provifion was unnecefTary and obfolete, expli- 
 citly repeals fo much of that and other old 
 ads therein fpecified, as relates to the reli- 
 dence of perfons elected to ferve in parlia- 
 ment, or of thofe who elect them. 
 
 The qualification of h electors for counties 
 was fettled at forty millings a year by the 
 ft, 8 H. VI. c. 7. explained and regulated 
 by other ftatutes made in the fame reign, and 
 fome of a much later date. In different ci- 
 ties and boroughs there are various caufes and 
 defcriptions which conftiture a right of vot- 
 ing : and to prevent endlefs contefts, by ft. 
 2 G. II. c. 24. 4. fuch votes are to be 
 deemed legal, which have been fo declared by 
 the lafl determination of the houfe of com- 
 mons refpecting a return from that place, 
 and that adjudication is made final ; but this 
 is repealed by ft. 28 G. III. c. 52. 314 
 
 h By the regiftry aft, 28 G. III. c. 36. 21. the fherifF 
 was to aft merely miniflerially, and to receive all the votes ten- 
 dered, with a view to a future fcrutiny ; but this whole ftatute 
 is repealed by 29 G. III. c. 18, and offenders againil the former 
 are indemnified. 
 
 8 . fo
 
 LECT. 2. of the Britijh parliament. 51 
 
 fo far as relates to determinations fubfequent 
 to that ad. As to cities and towns, that are 
 counties of themfelves, the ft. 13 G. II. 
 c. 20. has extended to them the regulations 
 of former afts made to prevent fraudulent 
 conveyances for election purpofes. 
 
 The foregoing compilations lead me now to 
 fpeak of the new judicature, by which the me- 
 rits of a contefted return are to be tried and 
 determined. This tribunal is eftablifhed and 
 modelled by what is generally thought a very 
 falutary law, (tho attended originally with in- 
 conveniences, fome of which at leaft have 
 fince been done away) namely the i o G. III. 
 c. 1 6, explained and amended by the n G. 
 III. c. 423 both of which are made perpetual, 
 the former being temporary, by the 14 G. 
 III. c. 15; and fundrynew regulations are in- 
 troduced by ft. 28 G. III. c. 52. By thefe 
 ftatutes it is enacled : " that whenever a l pe- 
 tition complaining of an undue return mall 
 be prefented, a day and hour, being fourteen 
 days at the leaft after the appointment of the 
 committee of privileges, {hall be appointed for 
 
 i Recognizances to be entered into, in the nature of thofe to 
 profecuts offences. St. 28 G. III. c. 52. 5, &c. 
 
 E 2 taking
 
 5 2 Of the conftituent parts, &c. LECT. 2. 
 
 taking the lame into confideration> and notice 
 thereof given to the petitioners and fitting 
 members, or their agents; but the time may 
 be altered as occalion mail require; and like 
 notice mufl be given of fuch alteration: that 
 on the day fo appointed, the ferjeant (hall go 
 with the mace to the places adjacent to the 
 houfe, and if lefs than one hundred members 
 appear, the buimefs fliall be adjourned till that 
 number are prefent ; and the houfe mall not 
 proceed to any other bufmefs, except the 
 fwearing of members, previous to the reading 
 of the k order of the day : that of the names 
 of all the members prefent, forty- nine fliall 
 be drawn by lot, and each party may appoint 
 a nominee, and may alternately ftrike off one 
 of the forty-nine drawn by lot, beginning on 
 the fide of the petitioners, till they are re- 
 duced to thirteen ; but if there are more than 
 two parties, each party is to ftrike off one of 
 the forty-nine, till they are reduced to thir- 
 teen, and in fuch cafe the thirteen are to chufe 
 two members then prefent in the houfe, whofe 
 
 
 
 k It may be adjourned, ft. 38 G. III. c. 52. II ; reports 
 from committees may be received, &c. 12; and regulations are 
 made, where a petition is not fupported, or not oppofed, and 
 where a party waives his right of Unking off names, or of add- 
 -jng a nominee, 13, 14, 15. 
 
 names
 
 -H 
 
 LECT. 2. of the Eritift parliament. 53 
 
 names fhall not have been drawn, inftead of 
 nominees appointed by the parties: that if 
 the name of a member, intended by one of 
 the parties as his nominee, happen to be 
 drawn, another name may be drawn inftead 
 thereof: that the faid thirteen members, 
 drawn by lot, and the two nominees, fhall be 
 fworn at the table, well and truly to try 
 the matter of the petition referred to them, 
 and a true judgment to give according to the 
 evidence, and fhall be a felefl committee to 
 try and determine the merits of the return or 
 election appointed by the houfe to be that day 
 taken into confideration : and the houfe mall 
 order the faid fele<ft committee to meet at a 
 certain time to be fixed by the houfe, being 
 within twenty-four hours of the appointment 
 of the faid feledl committee, unlefs a Sunday, 
 or Chriflmas-day, or Good-Friday fhall in- 
 tervene : that the feledt committee, on their 
 meeting, fhall eled: a chairman out of thofe 
 drawn by lot; and mall have power to fend 
 for perfons, papers, and records, and to exa^ 
 mine witnefTes upon oath, who may be m com- 
 mitted for non-attendance or mifbehaviour ; 
 and mail determine by a majority of voices of 
 
 i St. 28 G. III. c. 5*. 10. M Ibid. 16. 
 
 E 3 tke
 
 54 Of the conjlltuent parts, &c. L E c T . 2 
 
 the faid felecl: committee, whether the peti- 
 tioners, or the fitting members, or either of 
 them, be duly returned or elected, or whe- 
 ther the election be void; and mall alfo n re- 
 port whether the petition, or the oppofition 
 thereto, be frivolous or vexatious; and provi- 
 iions are made in refpedt to coils to either 
 party; and the houfe, on being informed of 
 fuch report by the chairman of the faid fe- 
 lect committee, mall order the fame to be 
 entered in their journals, and give the neceffary 
 directions for altering or confirming the re- 
 turn, or for ifTuing a new writ, or for carry- 
 ing the faid determination into execution, as 
 the cafe may require : that the felect com- 
 mittee mall fit from day to day, unlefs a Sun- 
 day, or Chriftmas-day, or Good-Friday, in- 
 tervene, and that no member thereof mall 
 be abfent, without leave obtained from the 
 houfe, on fpecial caufe verified upon oath, 
 and that all the reft muft be prefent, or, with- 
 in an hour after the time to which the com- 
 mittee mall have been adjourned, a farther 
 adjournment mail be made, and reported, with 
 the caufe thereof, to the houfe, and the ab- 
 fentees mail be put upon their defence for 
 
 3"';fi3jn aavaia w/nb r/A-'*'?ns*; li bos 
 * St. 28 G. III. c. 52. 18, &c. 
 
 ji f i -Q 
 
 fuch
 
 L E c T . 2 . of the Britifh parliament. 5 5 
 
 fuch omiflion of their duty : that lefs than 
 * thirteen mall never proceed to bufmefs ; and 
 that if the members able to attend fhall un- 
 avoidably be reduced to lefs than that num- 
 ber, and mall fo continue for the fpace of 
 three fitting days, the faid felec~l committee 
 fhall be diflblved, and another chofen to try 
 and determine the matter of fuch petition, 
 and the proceedings of the former fhall be 
 void and of no effect : that where p the me- 
 rits of petitions depend on queftions of 
 right, ftatements thereof fhall be delivered; 
 that a new petition and committee may be 
 appointed to try fuch right; and that q com- 
 mittees fhall not be diflblved by prorogation 
 of parliament." Thefe provifions, which 
 were efiablifhed for the moft part with 
 much wifdom and forefight, and which 
 lay fcattered in the acts, I have in fome de- 
 gree methodifed and diverted of the verbofity 
 of modern ftatutes. The impartiality and af- 
 fiduous attention to bufmefs, in thofe, who 
 have v hitherto compofed thefe felect commit- 
 tees, have in general been very praife- worthy 
 and fatisfaclory to the nation. 
 
 But if a committee fhall have fat fourteen days, twelve 
 members, and if twenty-five days, eleven members, may pro-^ 
 ceed to bufinefs. 17. 
 
 p 2 5 & c- < 33. 
 
 E 4 Another
 
 5 6 Of the conjlltuent parts, &c. L E c T . 2 . 
 
 Another ufeful innovation in the law of 
 election was r finally made by the 24 G. III. 
 L cfc 26. by which a<ft the fpeaker, under 
 certain regulations and reftridtions, is im- 
 powered and required, during any prorogation 
 or adjournment, to iffue his warrants to the 
 clerk of the crown, to make out new writs 
 for eleding members in the room of fuch as 
 fhall happen to die, or become peers of Great 
 Britain, before or during fuch recefs: and the 
 fpeaker is alfo im powered and required to ap- 
 point a certain number of members, not more 
 than feven nor lefs than three, as a provi- 
 fional fecurity, to put in execution the powers 
 of the aft. 
 
 
 
 We are now to fuppofe the commons elect- 
 ed and the parliament met; when the caufe 
 of fummons is declared. This s was ufually 
 done, in early reigns, by the chancellor or chief 
 jufKce: but what the chancellor uttered was 
 confidered as coming from the king, and was 
 entered de par k rot. The king l himfelf 
 
 fometimes fpake, being always prefent, either 
 
 o j r 
 
 '. '/( 
 
 r It repeals ioG.HI. c. 41. & 15 G. III. c. 36. ofafimilar 
 effed. Elf. c. vi. 4 Inft. 7, 8. J Elf. c. vi. 5. 
 
 in
 
 L EC T . 2 . of the Britifo parliament . 5 7 
 
 in perfon, or virtually by commiflion. The 
 fpeech from the throne, in more modern" 
 days, is not made till after the choice of a 
 fpeaker. For they cannot fit without v a 
 fpeaker after this firft meeting : this choice 
 therefore is their firft employment. 
 
 Mr. Elfynge, whofe diligence was, I be- 
 lieve, fometimes greater than his judgment v , 
 maintains, that without the king's command 
 or leave the commons cannot eledt their 
 fpeaker : tho he afferts the commons ever had 
 a fpeaker, and the firft command of that fort 
 was in the fecond year of Henry the fourth. 
 The fame author immediately declares, that 
 the choice is abfolutely in the power of the 
 commons, and that the king never rejeded 
 any of whom they made choice. But the 
 fpeaker is prefented to the king for his appro- 
 bation; and fince Mr. Elfynge wrote, in the 
 inftance of Mr. Seymour % the king refufed 
 
 i T^nr-'rj-trio .>???} d" ''iW ^if:H : 
 
 u Comm. journ. 5 Feb. 1672. 30 Dec. & 2 Jan. 1701, &c. 
 
 v 4 Inft. 8. But in cafe of the fpeaker's fudden indifpo- 
 
 fition, the houfe has made (hort adjournments, doing no other 
 bufinefs : and the fpeeches are then made to the clerk, and fach 
 queitions of adjournment put by him. Comm. journ. 18 & 21 
 Nov. 1763. So the fpeeches made in relation to the choice of 
 a fpeaker, are addrefled to the clerk. 
 
 w C. vii. 
 
 * Grey's debates, vol. vi. 402. 424. 438, 439. 
 
 to
 
 58 Of the conjlituent parity &c. LECT. 2. 
 
 to confirm him, but the commons would not 
 proceed to the election of another fpeaker, 
 and the parliament was prorogued. When 
 they met again, they chofe ferjeant Gregory. 
 No account of this tranfaction is extant on 
 the journals. So far as the precedent goes, it 
 terminated rather in favour of the prerogative. 
 But the contrary doctrine has more reafons to 
 fupport it. On the one hand, it may indeed 
 be urged, that as the fpeaker is entitled to 
 have accefs to the royal prefence, it would be 
 unbecoming to force one upon the fovereign, 
 who might be perfonally difguftful to him. 
 But on the other hand it may be argued, that 
 the form of prefenting the fpeaker elect 
 might, even in its origin, be only to give him 
 an opportunity of making excufes, ( y which 
 was a ufage of long continuance) and of be- 
 ing exonerated from the office by the royal 
 authority, at his own requeft; that if the 
 king might reject one, he might reject many; 
 that this is the Jingle inftance of rejection, 
 altho the election of Mr. Harley, in the fub- 
 fequent reign of William the third, is thought 
 to have been very diftafteful to that monarch, 
 
 7 I Parl. hift. 387,^ anno Cbrifli 1382, 5 R. II. 
 
 and
 
 L E c T . 2. of the Britifo parliament. 5 9 
 
 and altho he made his z excufes, (like the reft) 
 which afforded a plaufible pretext for fuper- 
 feding him; that even * the ceremony of mak- 
 ing excufes to the throne now feems abro- 
 gated; and laftly, that a fpeaker elected in the 
 middle of a parliament need neither make a 
 demand of privileges nor be prefented to the 
 
 * Comm. journ. n Feb. 1701-2. In 4 Com. dig. 297, 
 
 it is erroneoufly faid, he made no excufe : and cafes are al- 
 leged of a fpeaker eleft being called fpeaker before confir- 
 mation, viz. 1 6 Nov. 1699, at or about which time there was 
 no election, and 21 Oft. 1702: which latter inftance may be 
 authentic ; but there is no printed journal of that date. The 
 detection of any miftake in that valuable work rarely occurs. 
 
 * It was twice repeated in this reign, by fir J. Cuft, Comm. 
 journ. 6 Nov. 1761, & n May 1768. Sir F. Norton twice 
 omitted it, Comm. journ. 23 Jan. 1770, & 30 Nov. 1774. Mr. 
 Cornewall defired the houfe to give him leave to make his ex- 
 cufes in another place : but there was a cry, " no, no." Comm. 
 journ. 31 Oft. & i Nov. 1780. His fucceflbr, Mr. Gren- 
 ville, about a month after his ele&ion, in a very dignified 
 fpeech declared that, according to former inftances, a fpeaker, 
 elefted in the middle of a parliament, need neither make a de- 
 mand of privileges, nor be prefented to the king ; that he was 
 difpofed to follow the precedents at the reftoration and the re- 
 volution ; but yet fubmitted to be directed by the houfe. No 
 directions were given, and he was not prefented. Comm. 
 journ. 5 Jan. & 2 Feb. 1789. Mr. Addington followed the 
 example of Mr. Cornewal!, in fignifying his hope, that the houfe 
 would give him leave to make his excufes in another place; 
 but the like difapprobation was exprefled. Comm. journ. 
 S June 1789. Upon his re-eleftion, at the beginning of the 
 prefent parliament, it appear! that he made his dignified ac- 
 knowledgments to the houfe, but no excufes there, or to the 
 throne. Comm. journ. 25 & 26 Nov. 1790. 
 
 The
 
 6 o Of the conjlltuent parts, &c. L E c T . 2 . 
 
 The firil b mention of a fpeaker extant on 
 record is of fir Thomas Hungerford, in the 
 fifty- firft year of the reign of Edward the 
 third: but it feems juftly apprehended that 
 the commons had their fpeakers before this 
 time. Sir c Simonds d'Evves is of opinion, 
 that it may be collected from an old manu- 
 fcript account of a parliament holden in the 
 forty-fourth year of Henry the third, that the 
 commons had a fpeaker at that early pe- 
 riod. 
 
 . 
 
 The fpeaker, being approved, fues to the 
 king for certain privileges, which, it feems, 
 are conftitutionally due to the commons, and 
 
 are thus petitioned for as a mark of reverence 
 
 r 
 
 to the throne. Thefe are, according to Mr. 
 Elfynge d , accefs to the king, freedom of 
 fpeech, and freedom from arrefls : according 
 to fir Edward Coke % firft, freedom of fpeech, 
 
 .-..-r -. 
 
 and the antient and jufl f privileges and liber- 
 ties of the commons; fecondly, that in what 
 he mall deliver no fault may be imputed to the 
 
 b i Parl. hid. 351. Elf. c. vii. c Journ. 40. 
 
 A C. vii. 7. e 4 Inft. 8. 
 
 * The commons, in 23 C. i. made a remarkable order, waiv- 
 ing their privileges in a&ions, &c. except as to perfonal arreft 
 and imprifonmcnt. 16 Parl. hift. 487. The like is now enafted 
 by a general law. St. 10 G. III. c. 50. 
 
 commons,
 
 L E c T . 2 . of the Britijh parliament* 6 f 
 
 , VIQ >& \ Mohri'jm iihS srIT 
 
 commons, and that he may refort to them 
 
 for declaration of their true intent, and may 
 be pardoned; and thirdly, accefs to his ma- 
 jetty's royal perfon : according to fir John c 
 Finch, fpeaker in the third year of Charles 
 the firft, the rights claimed are freedom from 
 arreft, freedom of fpeech, accefs to the king, 
 and candid conftruction of the commons' 
 proceedings, or to that effect. Mr. Harley k 
 claimed all their antient rights and privileges 
 generally, and particularly thofe laft-men- 
 
 tioned. The like practice is ilill continued. 
 
 f "j( -G . ;::;;/*; 5 . > : 
 
 'w; i?i -jr ')- -aiji3-j . *u\& 
 Here we mav obferve feveral diftinctions 
 
 './', :. i } ' i j . TJ i'% t't t> 
 
 that prevail refpeclively between the fpeak- 
 ers of the two houfes of parliament. The 
 prolocutor of the houfe of lords is not elect- 
 ed, need not be a member, if a member, 
 votes in common with the reft, the fpeeches 
 in debates are not addreffed to him, but to the 
 lords collectively ; and his office is frequently 
 fupplied by an occafional deputy pro tempore: 
 'in all which particulars he differs from the 
 fpeaker of the other aflembly, who feems to 
 maintain more of authority, fubject i how- 
 
 - iiE.'t) , s^bto 'jl'li.'.-tfjfny! k ';r>:.ii, , * - ,.-; - i'iioi--n -jr! T 
 JbiT, , r no'huq oJ ih lc; /. > ../, ,f . ., i ., -."- 32^j-vnr- u'-vrf) >i it 
 
 * I .Rufli. coll. 484. 7 Par!, hift. 352. 
 
 h Comm.journ. 11 Feb. 1 700-1. 
 
 i Z Rulk coll. 1 137. 8 Parl. hift. 330, Sec.' 
 
 ever
 
 62 Of the conftituent parts, &c. LECT. 1. 
 
 ever to the control of the majority of the 
 houfe. 
 
 The commons, fays fir Edward Coke% 
 being the general inquifitors of the realm, 
 have principal care, at the beginning of a 
 parliament, to appoint committees. Thefe 
 have ! ufually been five, for religion, for griev- 
 ances, for courts of juftice, for trade, and for 
 privileges and elections. Of thefe the firft 
 four are general or grand committees; the 
 laft, now appointed for privileges only, con- 
 fifts of members deputed by fpecial norni* 
 nation. 
 
 In confidering trie parliament in its col- 
 lective capacity, we muft firft obferve, that 
 the time and place of meeting are in the king's 
 difpofal and appointment; but the frequent 
 convoking thereof is part of the conftitu- 
 tional law of the kingdom, enforced by fun- 
 dry ftatutes. 
 
 * 4 Tuft, n, 12. 
 
 1 Comm. journ. 13 Feb. 1700. 16 Nov. 1699. 23 Oft. 
 1702, &c.-' And orders are given, at the commencement of a 
 feffion, for their regular fitting. 
 
 As
 
 LECT. 2. of the Britifo parliament. 63 
 
 As to parliament days, Mr. Elfynge m cites 
 many precedents of parliaments being fum- 
 moned to meet on Sundays, from the twenty- 
 third year of Edward the firft down to the 
 fourth of Edward the third : and he tells us, 
 that fubfequent parliaments have fate on that 
 day. But this is not confiftent with the 
 practice of more modern times : altho the 
 deliberations of parliament each day are pre- 
 ceded with a form of prayer and religious de- 
 votions j an entry of which folemn rite is 
 regularly made in the journals. This appears 
 to have been the eftablimed practice at lead 
 from the beginning of James the firft's reign; 
 -for in the diary n of his firft parliament, we 
 find the clerk fometimes reads prayers in the 
 abfence of the fpeaker; and it feems a dif- 
 ferent form was ufed when they were read by 
 the fpeaker, and when by the clerk. 
 
 The fubjeft matter of parliamentary deli- 
 berations and refolves are all things that may 
 be conceived proper to be pafled into laws % 
 
 m C. iv. 15 Parl. hilt. 400. 446. Comm. journ. Sun. 
 II May 1679. 
 
 n At the end of the firft vol. of Comm. journ. 3b May 
 1604. 17 Dec. 1 8 Sc 20 March 1606. & 2 & 18 June 
 1607. 
 
 Elem. jur. left. II. 
 
 or
 
 64 Of the confthuent parts, &c. L E c T . 2 * 
 
 or wherein the advice of either houfe may 
 advantage the fovereign and his fubjects. The 
 antient writs of fummons fpeak of the de- 
 fence of the realm, and matters refpecling the 
 church : accordingly, in fact, reformations in 
 religion have been frequently treated of in 
 parliament; and even in early reigns, and 
 when fupplies were lefs neceflary, we find 
 both houfes confulted in affairs of peace and 
 war ; which to make and declare is the un- 
 doubted prerogative of the king. 
 
 Either houfe may adjourn according to their 
 refpective pleafure; and the adjournment of 
 the one is no adjournment of the other. But 
 a prorogation, which clofes the then feffion, 
 and a diifolution, which puts an end to the then 
 parliament, muft both be by the royal autho- 
 rity. The prorogation or difTolution of par- 
 liament, and the royal aflent to bills ready to 
 be pafled, may as effectually be tranfacted by 
 commimon as by the king in perfon. 
 
 The law and ufage of parliament may be 
 farther confidered, firft, as affecting one 
 branch of the legiflature with a direct view 
 to the other two branches thereof, and fe- 
 
 condly,
 
 IT c T . 2 . of the Eritijh parliament. 6 
 
 cbndly, as independent of fuch relation. 
 The former is verfed about matters of con- 
 fiitutional weight and importance: the lat- 
 ter regulates the debates and other proceed- 
 ings in each aflembly with an attentive regard 
 to clearnefs, decency, and expedition^ and in- 
 cludes what in parliamentary language are 
 termed points of order. 
 
 I. Of the former fort is that privilege of 
 the houfe of lords> that bills, affecting the 
 rights of their own body, mull: have rife 
 in that affembly, and fuffer no change from 
 the commons. Of the fame kind is the right 
 claimed by the commons to frame all money 
 bills, as they are called, which lay any tax or 
 impofition on the fubject. Thefe mud be 
 panned, if at all, precifely as they come from 
 the reprefentative body of the people, in re- 
 fpecl: to their matter, meafure, and time, and 
 cannot be altered in the houfe of lords. In- 
 deed this right was ftrongly contested between 
 the houfes in Charles the fecond's reign. 
 Reafons were urged againft it by the lords, 
 which, with the anfwers given to them, arc 
 
 F entered
 
 66 Of the conftituent parts, &c. LECT. 2. 
 
 entered in the journal p of the commons, 
 as alfo the thanks of the houfe to fir He- 
 neage Finch, attorney general, who had pre- 
 pared the arguments to eftablifh the claim 
 with great ability and diligence. The more 
 commonly received opinion, and the ufage of 
 parliament, have fince correfponded with the 
 privilege then aflerted and maintained. 
 
 
 
 II. The other part of parliamentary law 
 and ufage, which regulates the proceed- 
 ings in each aflembly feparately, as the ne- 
 cefTity that motions mould be feconded, that 
 a quefHon of amendment mould be put be- 
 fore the original queflion, and many other 
 points of order, the whole of this knowledge 
 can fcarce be learnt without actual experience. 
 On many occaiions it is requifite to refort for 
 inftrudtion to the precedents recorded in the 
 journals ; and each houfe frequently orders 
 them to be fearched. As to queftions rela- 
 tive to controverted elections, the former ad- 
 judications of the fele<5t committees muft be 
 confulted as ufeful, tho not jftrictly binding 
 authorities. 
 
 Comm. journ. 22 April 1671. 
 
 I think
 
 LECT.2. of the Eritijh parliament. 6 7 
 
 I think it unneceflkry to recite the formal 
 manner of paffing bills, or the various cere- 
 monies occafionally ufed between the refpec- 
 tive branches of the legiilature. What has 
 been fet down in this difcourfe may be not 
 unufeful, to the inexperienced at leaft, as an 
 introduction to the knowledge of parliamen- 
 tary law. 
 
 F2 LEG-
 
 [ 68 ] 
 
 LECTURE III. 
 
 Of the king) and his fupr erne executive power* 
 
 HAVING thus far treated of legiflative 
 magiftracy, as eftablimed by the con- 
 /litutional law of England, I proceed, in pur- 
 fuance of the plan, which I have adopted and 
 delineated a , to fpeak of the king's majefty, 
 the fupreme executive power of the ftate; 
 and mall afterwards confider the feveral tri- 
 bunals, to which judicial authority, the third 
 fpecies of civil dominion, is distributed. 
 
 By the antient and immemorial conftitu- 
 tion, the fupreme executive power (the gene- 
 ral nature of which kind of magiftracy was 
 attempted to be difplayed in b one of my ele- 
 mentary' difcourfes) is lodged in a fingle per- 
 fon, the king, or queen. Our kings 6 and 
 
 9 Elem.jur.left. VI. b Elem.jur. left. III. 
 
 7 Co. 10. b. Calvin's cafe. I Ander. 44. Benl. 79. 
 
 queens
 
 EECT. 3. Of the king y &c. 69 
 
 queens become fuch by hereditary defcent; 
 their rights are confummate before the cere- 
 mony of coronation, which is no part of the 
 title ; and their reign begins the day on which 
 the anceftor, laft vefted with royalty, expir- 
 ed. The rules of defeent therefore, which 
 regulate the inheritance of the crown, are a 
 moft important part of municipal law, fince 
 by thefe it is determined, whom we are to 
 obey as king. Thefe rules were by the com- 
 mon law the fame as prefcribe the title of 
 lands by defeent, on which I mall difcourfe 
 d hereafter) with only two variations or ex- 
 ceptions. For firft the crown defcends to the 
 eldeft daughter or fifter in exclufion of the 
 reft; whereas the real eftates of fubjedls are 
 inherited by all the daughters or lifters equal- 
 ly. The other exception is, that the half- 
 blood is not excluded from fucceeding to the 
 throne. If therefore the c fovereign hath a 
 
 fon and a daughter by one queen, and a 
 by another, and the elder fon becomes king 
 and dies, the fecond fon mall inherit, and npt 
 the daughter of the whole blood, as me 
 would do among fubjects. But the defeent 
 of the crown may be farther modified by adl 
 
 . XXVIII. e Tnft. 15, b. 
 
 F 3 of
 
 jo Of the king, and his LECT. 3, 
 
 of parliament. Thus, by the f ft. j H. IV. 
 c. 2. it was intailed upon the then king, and 
 his four fons fucceflively by name. The de- 
 fcent of the crown was limited by feveral 
 ftatutes in Henry the eighth's timej and a 
 g conditional power was given to that monarch 
 to difpofe thereof by letters patent or will. 
 According to the parliamentary limitation of 
 the crown, now in force, and enadled by the ft. 
 
 * It appears (2 Parl. hift. 95, &c.) that there were 
 the former having intailed the crown on the king in tail male, 
 and being immediately repealed; and farther that the copy of 
 the fecond aft, printed in Ruff. ed. is imperfeft, wanting both 
 the preamble and conclufion. This repeal, by refcinding the 
 exclulion of females, gives fome colour, in Rapin's opinion, to 
 the title fet up, about 55 years afterwards, by the houfe of York, 
 thro two females, from Lionel duke of Clarence. But every 
 claim, auverfe to the parliamentary fettlement then made, was 
 rationally barred thereby. Foft. 403. - Blackflone (i Comm. 
 199.) cites a paffage from William of Malmfbury, as mewing, 
 that the fame doftrine of limitation of the crown, by king and 
 national convention, prevailed before the Norman conqueft. 
 The expreffions however of that eminent Englifh annalift (as 
 Savile and others repute him) are applied, not to the fuppofed 
 grant of the crown by Edward the confeflbr, but to an agree- 
 ment of Harold himfelf, while a fubject, with duke William, 
 ratified by the former's oath j which he afterwards, when king, 
 wifhed to free himfelf from, as prefumptuous or invalid, " quod 
 
 ABSQUE GENERALI SENATUS ET POPULI COKVENTU BT 
 
 E D i c TO alienam illi kareditatemjura'verit. Proinde Jlultum fa- 
 cramcntitm f range ndum." Still this pafTage (confidering the age 
 of the hillorian, who was patronifed by Robert earl of Glou- 
 cefter, the general againft king Stephen, Nicolfon 58) is a 
 ftrong teftimony of the Ante-Norman conftitution. 
 
 s It is faid, a parliamentary title under this ftatute was out- 
 ftanding againft J. I. at his acceffion. 5 Parl. hift. i. 
 
 12
 
 L E c T . 3 . fupremc executive power. 7 1 
 
 12 & 13 W. III. c. 2. the right of fuccefiion 
 is declared and veiled in the princefs Sophia, 
 (the mother of our prefent fovereign's great 
 grandfather, George the firft) and the heirs 
 of her body, being proteftants. To deny that 
 the ftatutes of the realm are of force fuf- 
 ficient to bind the inheritance and limitation 
 of the crown, hath been made a highly punim- 
 able offence by h ac"ls of parliament, palled at 
 different periods of our hiftory. 
 
 The ceremony of crowning the perfon, 
 thus defignated to royalty, was in England 
 always accompanied with an oath. The form 
 of this oath, as it is now ordained to be taken, 
 is fettled by the ft. i W. & M. fefl*. i. c. 6; 
 and is in fubftance, to govern according to 
 law, to caufe juftice in mercy to be executed, 
 and to maintain the law of God, the true pro- 
 feflion of the gofpel, the proteftant religion, 
 and the rights of the bifhops and clergy. By 
 the ft. i W.6c M. fefT. 2. c. 2. every king and 
 queen, being of the age of twelve years, who 
 fhall fucceed to the imperial crown of thefe 
 realms, is alfo required, on the firft day of the 
 meeting of their firft parliament, or at their 
 coronation, (which (hall firft happen) to make, 
 
 h St. 13 El. c. i. ,6 A. c. -. 2. 
 
 F 4 fubfcribe,
 
 72 Of the king, and- bis Z.ECT. 3, 
 
 fubfcribe, and audibly repeat the declaration 
 againft popery in the 30 C. II. ft. 2. The 
 ad; before-mentioned, for the limitation of the 
 Crown,, requires both the declaration and oath 
 to be taken by perfons fucceeding by virtue of 
 that ftatute. 
 
 At the coronation 1 of William the nrft, the. 
 confent of the Englim thereto was afked by 
 Aldred archbifhop of York, and that of the 
 Normans by the bifhop of Conftance. It 
 would not probably have been very fafe for 
 any bold debater, who had raifed objections 
 againft thus placing the diadem. This in- 
 ftance however adds fome farther weight to 
 their opinion, who infift, that this prince 
 never claimed his fovereignty here by right of 
 arms over a vanquimed people, whatever were 
 the effects .of his flaughterous victory in re-r 
 fpect to actual power and unreftrainable do- 
 minion. He always alierted a right anterior 
 to the battle of Haftings, relying on the al- 
 leged grant of Edward the confeffor, and 
 might wi{h to have his claims ianctioned by 
 general approbation, efpecially as he had no 
 hereditary pretenfions, (the only familiar title) 
 
 1 Brady's hift. 190. 
 
 even
 
 SLECT. 3' fupreme executive power*, 73 
 
 even fuppofing his baftardy no impediment; 
 which J indeed was looked upon as no unfur-r 
 mountable objection among the northern war- 
 riors, who fpred their manners over Europe. 
 But what was then done by thefe two bimops 
 is not an example that k any fubfequent age 
 has had occafion to follow. Thus to allc the 
 confent of the people at large, as if the mo- 
 narchy were elective, is wholly repugnant to 
 the wife policy of the Englifh conftitution. 
 
 The king 1 hath, betides his natural, a politic 
 capacity, in refpect to which latter he is faid 
 never to die. This idea, being lefs quaintly 
 exprefled, means, that there is no interreg- 
 num ; that as well the tranfcendent prerogatives 
 of the crown, as rights of an inferior nature, 
 on the anceftor's death, immediately veft in 
 the lawful heir to the throne. I mall pur- 
 
 J Spelm. cod. fubhocregno. Wilk. LI. A. S. 285. And 
 
 accordingly he did not difguife this circumftance. " Ego Guli- 
 elmus cognomine Baftardus rex Angiiee" &c. Charter dated at the 
 fiege of York, which was but in the third year of his reign. 
 Seld. t. hqn. c. v. 10. 
 
 k Tho the ufurper Stephen fliles himfelf a king elefted, &c. 
 having, by a very liberal charter of rights and immunities, pre- 
 vailed on the convention called by him not to diipute his claim. 
 ) Parl. hift. 12, 13. 
 
 1 Plow. 213. 7 Co. lobi Calvin's cafe. 
 
 fue
 
 7 4. Of the king, and bis r E c T . 3 i 
 
 fue this distinction in the following obferva- 
 tions. 
 
 What I call then rights of an inferior na- 
 ture are chiefly fuch as relate to the royal 
 revenue and pofTefTions. The common law 
 made a large provifion, from various fources, 
 which are fully commented upon by fir 
 William Blackftone m , for fupport of ma- 
 jefty and peaceful government, tho at all 
 times very inadequate to the expence of 
 foreign wars. The king alfo poffefTes lands 
 and eftates, fome in right of his crown, 
 fome in right of his duchy of Lancaf- 
 ter, and fome by later acquifition. But the 
 expences of government have been, partly 
 from neceffity, fo highly augmented, the an- 
 tient means of fupplying them have funk to fo 
 inconfiderable a value, and (what is much 
 more to be lamented) long and frequent wars 
 have left fuch an accumulation of public debt, 
 that almofl the whole of the revenues is raifed 
 by taxation; and the annual amount of the 
 diiburfements to be allowed for the civil lift 
 has been from time to time adjufted by par- 
 liament. The fum fo appropriated is, I fay, 
 
 " Vol. i, c, 8. 
 
 the
 
 LECT. 3. fupreme executive power. j$ 
 
 the chief fund for fupporting the dignity of 
 the crown, and defraying the ordinary charges 
 of the ftate. Out of the refidue of the fup- 
 .plies, the intereft of the national debt is re- 
 gularly paid, and armies and fleets are raifed 
 and fitted for atchievements. 
 
 Among the rights of an inferior nature, or 
 thofe of pofTeffion belonging to our fove- 
 reigns as fuch, may be reckoned the antient 
 jewels of the crown, which are of that kind 
 of chattels termed by the law n heir-looms, 
 and which the king cannot difpofe of by his 
 teftament. This reftraint exifts by common 
 law: and by acV of parliament, the power 
 alfo of difpofing of crown lands is very con- 
 fiderably limited and circumfcribed. 
 
 But the fuperior rights, the tranfcendent 
 prerogatives of our kings, are what efTentially 
 form their conflitutional character. The 
 crown p of thefe realms is declared by divers 
 a<5ts of parliament to be of q imperial dignity. 
 
 The 
 
 n i Inft. 18 b. St. i A. ft. i. c. 7. P Dav. 61. a. 
 
 ' I cannot fuccinftly afcertain the meaning of this expref- 
 
 fion j but, in the places alluded to, it feems ufed chiefly to afiert 
 
 the
 
 *r 6 Of the 'king, and bis JL E c T. 3 f 
 
 The powers thereof may be confidered with 
 refpect to the royal fupremacy in (firft) ec- 
 clefiaftical(fecondly) civil, and (thirdly) mar- 
 tial affairs : under which laft head I compre- 
 hend the prerogatives relative to peace and 
 
 I. As to the particulars of the king's fu- 
 premacy over the church, his r confent not 
 only is, and always was, necefTary to the ra- 
 tification of canons and cpnftitutions made by 
 the clergy, but he may, in fpme inflances, 
 'fuperfede, by his difpenfatipns and exemp-r 
 tions, the ordinary effects of the ecclefiaftical 
 law^ By the ft. 25 H. VIII. c. 19. i. it is 
 enacted, that the convocation mall be afTem- 
 bled by the king's writ, withput which, or at 
 leaft the royal licence, thefe fynods could 
 * never meet. When they are regularly con- 
 voked, they muft have the king's licence" be? 
 
 the ecclefiaftical fupremacy of our kings. Thus William Ru- 
 fus. alleged, in his difpute with archbiihop Anfelm on this very 
 fubjecl, " quod fpeftabat ad cjficium IMPERATORIS, quext 
 *veilet papam eligere, ^3 ob eandcn: ratitmem quod nulius arckiepif- 
 copus <vel epifccpus regnifui curne Remains <vel papa JubeJJet ; pra- 
 cipue cum ipfe omnes liber tales haberet in regno Juo, quas IMPERA- 
 TOR <vindicabat'in IMPERIO. Ibid. The llile of iterator, was 
 ufed by king Edgar. Pref. to Co. iv Rep. 
 
 r 12 Co. 72. Dav. 72. b. 73. a. St. 25H.VIIJ. 
 
 c. 19. I. r 4 Inft. 322. u 12 Co. 72. 
 
 7 fore
 
 L E c T . 3 . fnprcme executive power. ff 
 
 ibre they can confer to make canons. The 
 king has alfo the undoubted right of pro- 
 roguing and difTolving the convocation. By 
 the fame prerogative the king is the ulti- 
 mate judge in matters and . caufes ecclefi- 
 
 77 
 
 aftical; but does not exercife this jurifdiction, 
 -in perfon. If indeed the caufe affed: the 
 king, an appeal may, by the ft. 24 H. VIIL 
 c. 12. be brought within fifteen days to the 
 upper houfe of convocation. This provi- 
 fion w does not feem abrogated by the fubfe- 
 quent ft. 25 H. VIII. c. 19; by which act 
 appeals are to be made from the archiepifco- 
 pal courts to the king in chancery, and there- 
 upon a x commiftion is to iflue under the great 
 feal to proper perfons with authority to hear 
 and definitively to determine fuch appeal. It 
 appears alfo, that the Y king, and commitfioners 
 to be appointed by him, may fometimes exer- 
 cife an original jurifdiction, (that is, not by 
 way of appeal) in depriving ecclefiaftical per- 
 fons for offences againft the canons. Laftly, 
 the king, for the moft part, and in effecT:, 
 difpofes of the principal preferments in the 
 church ; an authority of great moment, tho 
 
 . 'j J ,'^/rl jf\. t - * - -. 
 
 w V. 4 Inft. 339. marg. x Port, left. VI. r 4 Inft. 
 340. 2 Cro. 37. Mo. 755. St. il.'c. i. $ 1 8. 
 
 perhaps
 
 78 Of the king, and his LECT. 3. 
 
 perhaps a lefs auguft mark of fovereignty than 
 matters of mere jurifdiction. 
 
 II. The king's prerogative of power in civil 
 affairs cannot fo properly be termed multifa- 
 rious as univerfal : for all the occupations of 
 government are performed by his authority 
 and influence. He confers honours and pri- 
 vileges y creates corporations -, and, generally 
 fpeaking, appoints all the judicial and execu- 
 tive magiftrates of the ftate. All writs direct- 
 ed to merifFs and others, for public or more 
 private purpofes, eftablifhed by common law 
 or ftatute, as for convoking a parliament, pro- 
 cefs in legal and equitable courts, including 
 matters of a more fpecial nature, as thofe of 
 habeas corpus, mandamus, prohibition, and 
 injunction, (which are to be fpoken of here- 
 after in their proper places) all thefe, (which 
 are put for examples) and whatever elfe re- 
 fpects the general execution of the law as dif- 
 tinguifhed from particular and local jurifdic- 
 tion, runs in the king's name, and expreffes 
 his command. And even all territorial or ex- 
 empt jurifdiclions are fuppofed to owe their 
 privileges originally to the king's grant. So 
 that all executive power, all inforcement of 
 8 the
 
 L E c T . 3 . fupreme executive power. 7 9 
 
 the laws in being, is derived, mediately or. 
 immediately, from the crown. Whatever 
 the law requires to be done, can only be done, 
 ultimately, by royal authority. There are 
 however, in civil concerns, few things of ge- 
 neral importance, which are left to arbi- 
 trary difcretion to be performed or omitted, 
 altho the time, place, manner, or perfons, 
 may be determinable by the refolutions of the 
 royal will. Thus it is recited in the ft. 6 W. 
 & M. c. 2. that by the antient laws and ila- 
 tutes of this kingdom, frequent parliaments 
 ought to be holden, and that they tend very 
 much to the happy union and good agreement 
 of the king and people ; and it is then pro- 
 vided, that a new parliament mall be con- 
 voked within three years after the determina- 
 tion of the former z . But the precife time and 
 place of meeting are ftill in the king's difpo- 
 fal. Thus alfo the fuperior courts of judica- 
 ture have ftated jurifdictions % which cannot 
 be altered but by act of parliament. But the 
 perfons who are to fill the important and 
 dignified ftation of judges are felected and ap- 
 pointed by the king. On the other hand, 
 
 z And it was further ena&ed, that no parliament ftiould lafl 
 longer than three years; but the term is enlarged to feven years, 
 ft. i G. I. ft. z.c. 38. 
 
 * 2 Hawk. 2. 
 
 matters
 
 So Of the king, and bis Lfecr: Jj 
 
 matters of a more private concern, as the 
 grant of any franchife to an individual, the 
 creating of new corporations, or new dignities; 
 and many other things, which the law per- 
 mits> but does not require, are in the king's 
 oreaft to do, or wholly and intirely to leave 
 undone, as his difcretionary will mall fug- 
 geft. 
 
 Here alfomufl be mentioned the king's au- 
 thority over affairs of domeftic merchandize! 
 and traffic. Sir William Blackftone b ftiles him, 
 by an exprefiion fomething loofe, the arbiter 
 of commerce ; and refers this power to three 
 principal heads, the erection of fairs and mar- 
 kets, the appointments of weights and mea- 
 fures, arid the regulation of the coin. The 
 firit might be a dangerous prerogative, efpe- 
 cially to the poorer fort, if the c law had 
 not determined, that where the toll granted 
 with the fair or market is unreafonably ex- 
 ceffive, the grant of the toll is void, and the 
 market or fair fo created becomes free ; for 
 there ought to be a proportionable benefit 
 to the fubjecl:. Regulations refpecting 
 weights and meafures, and the coin, have 
 
 b i Bkck. comm. 273. c 2 Inft. 220. 
 
 for
 
 L E c T . 3 . fupreme executive pouter. 8 1 
 
 for the moft part been made in parliament. 
 As to this laft article, whether Sir Matthew 
 Hale or Sir William Blackftone is right in 
 his opinion, (the former of whom holds, 
 that the royal prerogative may vary the 
 denominated from the fterling value of the 
 coin, and the latter d difputes this pofition) 
 there feems little danger 6 , that fuch lup- 
 pofed power mould be abufed. In a com- 
 mercial country the fterling value of the coin 
 muft regulate its currency. It feems, that 
 no power can effectually alter this correfpon- 
 dency, and that no views of intereft can lead 
 to fuch an attempt. 
 
 In relation chiefly to the king's preroga- 
 tive of power in civil matters, we fo often hear 
 the celebrated maxim, that " the king can do 
 no wrong." This legal apophthegm, gene- 
 rally fpeaking, feems to have two very dif- 
 tinct fignifications, according as it is applied 
 to time paft or future. If we contemplate 
 a paft tranfa&ion, it means, that the wrong 
 actually done muft be imputed, not to the 
 
 * I Black, comm. 278. 
 
 * V. i Parl. hift. 303. and the notes there: but the eftimate is 
 to be made for the time being, and not on a companion of dif- 
 tant ages. 
 
 G king,
 
 82 Of the king, and bis LECT. 3. 
 
 king, but to his miniflers or advifers. They 
 mufl be refponfible. To call the king him- 
 felf to account 7 would be introducing anar- 
 chy on the ruins of the conftitution. On 
 the other hand, when we fay, the king can 
 do no wrong, in refpedl to fomething future, 
 we mean, that the royal prerogative does not 
 extend fo far as to commit or authorize in- 
 juftice. 
 
 III. I come now, thirdly, to the confidera- 
 tion of the royal prerogative in martial affairs, 
 and as inforcing, in refpecl: to other nations, 
 the jufl and general laws of war and peace. 
 Here the king exercifes, as the grand repre- 
 fentative of his people with regard to foreign 
 ftates, a more uncontrolled and uncircum- 
 fcribcd dominion. For it is not of the ge- 
 nius qf municipal law to regulate national 
 treaties ; nor can it be fuppofed properly to in- 
 terpofe ; fmce other ftates would be inclined 
 to flight a fovereign fo curbed in his negotia- 
 tions, as |: Charles the fecond once very 
 reafonably urged to his parliament. The 
 royal conducl therefore is in this refpect very 
 
 1 King's fpeech, 28 May 1677. 
 
 little,
 
 LECT. 3. fupreme executive power. 83 
 
 little, if at all, defined by law. But tho the 
 legal prerogative is in the crown, in refpect 
 to foreign powers, yet the parliament was 
 always confultedj and its authoritative in- 
 fluence is far from having x been diminimsd 
 within the laft century. If a treaty fhould 
 be difapproved of by both houfes, they would 
 probably call the advifers to account. Still, 
 however, the treaty would be valid, as made 
 by the undoubted federative magistracy of 
 the ftate. In this capacity, therefore, the 
 king has the power, unreflricted by law, of 
 g commirlioning ambafTadors, plenipotentiaries, 
 agents, and confuls, to other realms and do- 
 minions, of appointing their rank, and defi- 
 nitively dictating their inftructions, or pre- 
 fcribed rules of conduct and negotiation. 
 His authority is undefined in declaring war, 
 ill accepting overtures and terms of peace, 
 and in forming all forts of treaties with fo- 
 reign powers : tho it has h always been ufual 
 or frequent, from earliefl times, as I have 
 juft intimated, and as we may partly collect 
 from the molt antient writs of fummons to 
 parliament, in thefe grand and momentous 
 concerns to confult the fenfe of the nation 
 
 i Elem.jur.left. IV. 
 
 * i Parl. hilt. 276. 301. 321. Dugd. fumm. temp. E. III. 
 
 G 2 -fo
 
 84 Of the king, and his L E c T . l* 
 
 fo afTembled, that auguft body being the 
 chief council of our fovereign, to advife him 
 in the proper exertion of his legal and un- 
 doubted prerogative, as well as to act in le- 
 giflation. Here alfo muft be referred the 
 power of granting letters of marque and re- 
 prifal, of which I mall more fully fpeak here- 
 after, in the l lecture concerning captures at 
 fea. The king alfb> and he only, can grant 
 J letters of fafe conduct, by which he licences 
 the k fubje<fts of a hoftile ftate to enter his 
 dominions. In like manner our fovereign, 
 as fupreme fuperintendent for the defence 
 and commerce of the realm, has the right of 
 
 Left. XXXIV. 
 
 j 7 Co. 25. b. Calvin's cafe. Thefe inftruments ought to 
 be inrolled in chancery ; otherwife, by the ft. 20 H. VI. c. I. 
 they are void. 4 Inft. 152. But as fir Wm. Elackftone (l Black* 
 comm. 260) cbferves, the end is now anfwered by paflports 
 from the king, or his ambafiadors abroad. 
 
 k For the fubje&s of a (late in league or amity may come 
 without licence. 7 Co. 21. b. Calvin's cafe. Sir William Black- 
 ftone indeed aflerts, (i Black; comm. 259) that " without fafe 
 conduces by the law of nations no member of one ftate has a 
 right to intrude into another." But Vattel explodes fuch jea- 
 lous and inhofpitable rigor, maintaining, that u in Europe (tho 
 it is otherwife in China and Japan) the accefs is every where 
 free to every perfon, who is not an enemy to the ftate, except 
 in fome Countries to vagabonds." This feems the general rule. 
 Prohibitions to enter the coafts may lawfully be iffued on many 
 juft occafions, but muft be confidered as exceptions* Vatt* 
 b. ii. ico, 123, 132. and auth. cited Elem. jur. 66. 
 
 appointing
 
 j. E c T . 3 . fupreme executive foiver. 8 5 
 
 appointing the regular ' ports and havens on 
 his coafts ; and in the fame capacity has the 
 power m of erecting beacons, lighthoufes, and 
 fea-marks, as well for the general fafety of 
 navigation, as to give a ready alarm, when a 
 hoftile invafion is apprehended. Laftly, to 
 the fame prerogative of power in martial af- 
 fairs, may be referred the king's fupreme 
 command over fleets arid armies, his difpofal 
 of offices therein, and his direction and con- 
 trol in the conduct of their operations. 
 
 To advife the king in the exercife of thefe 
 his various powers and prerogatives, he is by 
 law provided with feveral councils, the firft 
 and chief of which is the parliament; the 
 fecon.d is the body of the peers, or fo many 
 of them as he chufes to affemble, (which 
 practice is now difufed) ; the third conlifls of 
 the judges ; and the fourth is the privy 
 council, of which I mall hereafter n make 
 fome mention in its judicial capacity. 
 
 I mail now advert fo feyeral particulars 
 
 1 Their privileges are fecured by Magna Charta, c. 9. 
 
 m 4 Inft. 148. The ft. 8 El. c. 13. has deputed the chief 
 cxercrfe of this authority to the corporation of the Trinity- 
 houfe. 
 
 * Left. V. XXXIV. LVIII. 
 
 G 3
 
 86 Of the king, and Ms LECT. 3, 
 
 wherein the royal prerogative feems to have 
 varied in different ages ; by which we may 
 form upon the whole a general eflimate of its 
 augmentation or decreafe. Firft then it is 
 commonly underftood, that the king cannot 
 now conflitute new boroughs with a right 
 offending members to parliament; nor p can 
 he appoint new offices with new fees to be 
 levied of the fubjecl:, nor new fees to old 
 offices : which depends on the conftru&ion 
 given to a * ftatute of Edward the firft. Yet 
 antiently, it feems, our kings exerted thefe 
 powers without restraint. On the other hand, 
 it may be doubted, whether by the early con- 
 ftitution the king had fo very full and un- 
 conditional a right of increafmg the numbers 
 of the lords' houfe, by conferring new peer^ 
 ages, as he manifeftly enjoys at prefent. For 
 
 It is remarkable, that under H. VIII. this power was ex- 
 ercifed or reftored with refpeft to Calais, tho faid (7 Co. 22. a. 
 Calvin's cafe) to have never been part of the realm of England. 
 Yet of a judgment there a writ of error was returnable in the 
 kir,g's y bench; (4 Inft. 282) and a record there was removable 
 by certiorari. (2 Croke, 484.) At the end of the fixth volume of 
 the Parliamentary hiftory there is an account of the places, 
 which fent members at the acceffion of H. VIII, and of thofe 
 princes, under whom additions were fucceffively made to the 
 number. 
 
 P 2 I-.(K 533. See therefore ft. 22 G. III. c. 82. $ 2. 
 
 1 D taiu^o non concedtndo. 34 E. I. ft. 4. c. I. 
 
 allowing
 
 LECT. 3. fupreme executive pover. 87 
 
 allowing that r Mr. Weft ihould be mifta^en 
 in the idea, which in the form of a queftion 
 he fuggefts with diffidence, but maintains 
 with learning and ingenuity, namely, that the 
 confent of the peers was neceflary to the ad- 
 mittance of a new member claiming by pa- 
 tent, yet * the indifpenfible requilite of an 
 earldom or baronial territory, to be provided 
 for the perfon to be ennobled, was in itfelf 
 a reft fiction of the royal will and authority. 
 
 In refped: to judicial magiftracy, the king's 
 prerogative is confiderably abated. For an- 
 tiently he exercifed a power of judicature, 
 which has long been irrevocably delegated* 
 
 r Inquiry into the manner of creating peers, 63 &c. He 
 urges, firil, that in manerial courts-baron the admittance of a 
 new tenant required the concurrence of the former feudatories; 
 and fecondly, that in faft patents of peerage were pafled in par- 
 liament. 
 
 * Selden acquaints us, (t. hon. c. v, 1 1,) that, ' if an 
 earl were to be made of an earldom, not yet fo known, then 
 pofleffions weredded at the creation to create an earldom alfo." 
 And we learn, (z Black, comm. 62) that " a certain number 
 of knights' fees were requifite to make up a barony." The 
 number, as defined in the old rr\odus tenendi parliamentum, is dif- 
 puted by Selden, who leaves the amount uncertain, (t. hon. c. v. 
 26.) The credit of that performance is too much exalted by 
 Coke, and perhaps too much difparaged by Selden, fince he tells 
 us in one place, " divers copies I have feen of it, but never any 
 which exceeds chat age" (of E. III.) ; and in another place, 
 " I cannot believe that either of them (the Englifli or Iriflj 
 modus) was/o antient as II. II." Ibid. 
 
 * 4 Inft. 71. 12 Co. 64. 
 
 G 4 to
 
 88 Of the king, and hh LECT, 3, 
 
 to others ; and he might alfo, at leaft during 
 a conliderable part of Englifti hiftory, remove 
 judges at pleasure. But now by the ftatutes 
 12 & 13 W. IH. c. 2. and i G. III. c. 23, 
 the cammiffion of the fuperior judges in the 
 courts of common law is made to them 
 " quajndiufe bene geflerint :" on which good 
 behaviour, it feems, the " parliament only can 
 determine : and their offices do not become 
 vacant at the demife of the crown. On the 
 other hand, in antient times the ordinary w 
 officers and minifters of juftice, as merifFs 
 and cpnfervators of the peace, were elecled 
 by the freeholders of the county. This is 
 an important and evincing proof of the free- 
 dom of the old conflitution. But nqw* juf- 
 tices of the peace, who have fucceeded to 
 
 St. 12 & 13 w. ill. c. 2. 3. i G. m. c. 23. $ 2. 
 
 * 2 In!!. 174 558. St. 28 E. I. c. 8. LI. Edw. Conf. c. 35. 
 
 T In the fiftieth year of Edward the third, the commons pe- 
 titioned, " that juftices of the peace might be named in every 
 county, by the lords and knights of the refpeftive county in par. 
 liament, and /worn before the king's council, and not be re- 
 moved without confent of parliament ; and that they might be al- 
 lowed reafonable fees." Bat that great prince, then fick and 
 infirm, and controlled by pernicious influence, rejefted the pe- 
 tition, his anfwer being, " that they fhould be named by him 
 and his continual council ; and as to fees, he would confider of 
 it:" the latter words being the form of the royal negation. 
 This was called, for a long time afterwards, " the good parlia- 
 *rnt." 1 Parl. hift. 343. 
 
 the
 
 ILECT, 3. fupreme executive power. 
 
 the confervators of old, but with a large accef-r 
 fion of new powers, are commiflioned by the 
 king's authority, delegated to his chancellor, or 
 keeper or lords commiffioners of the great feal : 
 and the fele&ion of proper perfons to be y fhe- 
 riffs is repofed, by the ft. 14 E. III. ft. i . c.y, in 
 the chancellor, treafurer, prefident of the coun- 
 
 7 The office of fheriff, as firW. Blackftone (i Black. 0)0101.339) 
 mentions, was in fome counties antiently hereditary. Where it 
 was, as in general, elective, it was often holden for more than one 
 year. Spelm. Gl. v. vicecomes. At a parliament in the 5th year 
 of R. I. the fheriffs of Yorkfhire and Lincolnfhire were deprived 
 of their offices, which were expofed to fale. The archbilhop of 
 York bought the fherifPs office for the former county for 3000 
 marks, and an annual rent of 100 marks.(i Parl. hift, 17.) Other 
 great men, and fome of the royal family, were in thofe days am- 
 bitious of, and enjoyed, by election, the office of fheriff. And 
 in the 27th year of H. II. four perfons were at the fame time fhe- 
 riffs of Warwickfhire and Leicefterfhire for three years. (Spelm. 
 Gl. v. vicecomes.) But by the ftatutes 14 E. III. ft. i. 0.7. 
 28 E. III. c. 7. and 42 E. III. c. 9. they were to continue in of- 
 fice but one "year; the reafon of which, as given in the former 
 of thefe acts, is, that, by a longer continuance therein, they were 
 encouraged to commit oppreffions. The ft. i R. II. c. n. pro- 
 hibits the fame perfon to be re-appointed {heriff within three 
 years, *'. if there be other fufficient in the county, of poffeffions and 
 goods, to anfwer to the king and people." Such however was 
 the ambition of beinf fheriff in thofe days, that thefe laws were 
 difobeyed, and, the ft. 23 H. VI. c. 7. [fo in Ruff, but in Pick. 
 & 3 Black, comm. 340. it is c. 8.] was made to reinforce them, 
 reciting that, notwithftanding the former provifions, fome fheriff* 
 continued in office ten, twelve years, and more, to the great de- 
 triment of the people, by reafon of partiality and alliances. The 
 reafon given by Spelman for innovating in the manner of appoint- 
 ment, is the tumults that arofe at thefe contefted elections. [The 
 ft. 21 II. VIII. c. 20. (cited by Black, ubifufra) feems quite 
 to a different purpofe, v. preamble fk 16 C. I. c. 10.] 
 
 cil,
 
 90 Off/je king, and bis LECT. 3. 
 
 cil, chief juftices, and chief baron 2 ; but the 
 courfe is, that the other judges alfo attend 3 
 three for each county are felected, out of which 
 three one is finally appointed by the king. 
 
 Another particular, in which the king's 
 prerogative has fuffered diminution, refpe&s 
 his rights of pofleffion. Here the antient doc- 
 trine was, that no length of time could pre- 
 clude, or fruftrate his demand. But his pre- 
 fent majefty has gracioufly condefcended to 
 an almoft complete abrogation of this pri- 
 vilege : and accordingly by a late itatute a the 
 crown is barred from recovering any eftate 
 or hereditament, (other than liberties or fran- 
 chifes) where the title did not firfl accrue 
 within the laft lixty years, which was the 
 ultimate period before fixed as an impediment 
 againft the claims of a fubjeft. 
 
 This may put us upon enquiring into the 
 juridical remedies and redrefs, that may be 
 fought by, or from, the king. The law al- 
 ways was, and is, D that the king may fue both 
 in courts of law and equity. But the king c 
 
 * i Black, comm. 340, i. * 9 G. III. c. 16. i. 10. 
 b 2 Lev. 82. 3111(1.136. i R. A. 373. 4 Co. 55. a. 
 
 cannot
 
 L E c T . 3 . fupreme executive power. 9 1 
 
 cannot be fued by his fubjects by writ, for 
 he cannot iflue a command to himfelf. Yet 
 Comyns, in his digeft d holds, that before the 
 time of Edward the firft, the king might be 
 fued as a common perfon, the form being, 
 " pracipe Henrlco regi Anglice -" for which he 
 cites many authorities. In one * of thefe, 
 Wilby declares, he has formerly feen a writ 
 in fuch form ; in lieu of which, there is now 
 (fays he) given a petition, for (or in refpeft 
 of) his prerogative. So that f whoever has 
 a demand upon his fovereign, in matters pro- 
 perly cognizable before the tribunals of law or 
 thofe of equity, muft now pray him to do right 
 and juftice, by a petition addrefled to him in par- 
 liament, or in other court, as in chancery. 
 
 In this comparative view, it is unneceflary 
 to be very particular in obferving how highly 
 the royal prerogative was magnified in the 
 reign of Richard g the fecond, according to 
 the anfwers, which the judges then gave to 
 queftions propounded by that prince. For 
 thefe betrayers of their truft were impeached 
 in parliament for what "eafily appears to be 
 
 d l Com. dig. 115. Yearb. 24 E. III. 55. b. 
 
 ' Mo. 639. 4 Co. 55. a. * l Pari. hift. 432 435. 
 
 441461. Left. XL. poft. 
 
 a wil-
 
 92 Of the king, and his J.ECT. 3, 
 
 a wilfully falfe mifreprefentation of our legal 
 constitution. Indeed they afterwards recant- 
 ed their opinions, and pleaded that they were 
 given under the apprehenfton of threatened 
 violence. They were not with {landing con- 
 demned tq death, but the lives of mofl of them 
 were faved at the interpofition of the bifhops, 
 ftr Robert Treiilian, who was obnoxious on 
 other accounts, having been executed before^ 
 fuch interference. 
 
 Thus we fee then that without the pofl- 
 tive influence of acts of parliament, the re- 
 ceived notions of the royal prerogative have 
 in different ages been in fome degree of fluc-r 
 tuation. The more important flatutes for 
 limiting the powers of the crown, and fecur- 
 ing the liberties of the fubjeft, began to be 
 panned about the middle of the laft century. 
 Such were the petition of right, and other 
 laws confented to by Charles the firfl, and 
 feveral flatutes enacted foon after the revo- 
 lution. But perhaps no reign has in this re- 
 fpe<fl been more beneficial to poflerity than 
 that of Charles the fecond -, under which 
 thofe two great acceffions to liberty were 
 made, the abolition of the hardfhips of feudal 
 
 tenure.
 
 L E c T . 3 . fupreme executive power* 9 j 
 
 tenure, and the habeas corpus act, which 
 points out the ready means of releafing men's 
 perfons from oppremve and unlawful impri- 
 fonment. Yet it feems fomething of a pa- 
 radox, which is aiTerted by fir William Black- 
 ftone, " that by the law as it then flood, the 
 people had as large a portion of real liberty, 
 as is confident with a ftate of fociety," when 
 in the fame fentence he admits, " that fome 
 invidious, nay dangerous branches of the pre^ 
 rogative have fince been lopped off 11 ." Upon 
 the whole, the legal prerogative of our kings 
 feems to have decreafed. But the influence 
 of the crown, by various means., had been 
 more than proportion ably enhanced, till by 
 the wifdom of the two houfes, and his pre- 
 fent majefty's patriotic condefcenlion, fome 
 late reductions and reformations were i enacted, 
 with a regard at the fame time to public vir* 
 tue, and public economy. 
 
 k 4 Black, comm. 432, 3. 
 
 1 St. 22 G. III. c. 82. commonly called the Reform Bill. In 
 the preamble, the fuppreffion of divers offices is recited to have 
 been done by his majefty's order, from his paternal regard to the 
 liberty of his people, and for the better fecurity of the liberty 
 and independency of parliament ; it is then ena&d, that they 
 thall be accordingly fupprefled, and that if they Ihould be re- 
 vived, they flull be deemed new offices. I, 2. v. ant. 86. 
 
 It
 
 94 Of the king, and bis LECT. 3, 
 
 It is obvious to remark, that what has been 
 faid of a king applies equally to a k queen 
 reigning in her own right, by hereditary de- 
 fcent, as the two daughters of Henry the 
 eighth. But it is proper to mention, that 
 a queen confort alfo is in a particular man- 
 ner confidered by the law. She differs l from 
 other married women in thefe points, that me 
 may take lands by grant from the king, or 
 from any other perfon ; and may create eftates, 
 and execute a bond, or other fpecialty, with- 
 out her hufband's joining to effectuate the 
 conveyance or fecurity : me may alfo fue, and 
 be fued, without the king. For the queen 
 confort is an exempt perfon by the common 
 law ; and her agency is not, like that of other 
 married women, invalidated and rendered of 
 no effect. The queen alfo, and the prince 
 of Wales after a certain age, have ufually an 
 eftablifhed houfehold, and their refpective of- 
 ficers of ftate, with confiderable rank and 
 privileges. As to the queen confort's re- 
 venue, called aurum regince, the nature of it is 
 explained by lord Fortefcue in his m reports ; 
 who alfo very fully recites * the opinion of 
 
 k St. i Mary, fefT. 3. c. i. l i Inft. 133. a. 2 R. A. 213. 
 4 Co. 23. b. m Fort. 398 &c. n Ibid. 401 &c. 
 
 7 the
 
 LECT. 3. fupreme executive power* 95 
 
 the judges, touching the education of the 
 prince of Wales's children; the care and 
 management whereof was determined, on prin- 
 ciples of public expedience, and by a majo- 
 rity of ten out of the twelve, to belong to the 
 king. The marriages of the royal family are 
 put under fome reftraints by a flatute of the 
 prefent reign : and p thofe, who mall folemnize 
 or aflift at the celebration of any fuch mar- 
 riage, without the confent required by that 
 act, incur very grievous penalties. 
 
 I mall * here conclude my obfervations 
 on this very extenfive and important title, 
 which, very properly, occupies fuch a con- 
 iiderable fpace in fir William Blackftone's 
 commentaries. And, having now confidered 
 the legiflative and executive authority, as efta- 
 blimed in this country, I (hall next proceed 
 to the difcuffion of judicial power, as dif- 
 tributed to our feveral courts of juftice. This 
 will employ our attention in the five next 
 ledures ; in the firft of which I mall take a 
 view of thofe ordinary jurifdiclions, which 
 proceed by the general laws of the land. 
 
 12 G. III. c. ii. * Same act, 3. 
 
 V. Elem. jur. 109, no. 
 
 LEG-
 
 9 6 OfcouYts, iv bofe proceedings are L E c f ; 4* 
 
 LECTURE IV; 
 
 Of courts, ivbofe proceedings are regulated by 
 the general laws of the land. 
 
 1N(3W enter upon a part of this courfe 
 of lectures, which wears a complexion td 
 attract and engage the attention of fludents 
 addicted to the profeffion of the law, namely, 
 the confideration of thbfe feats and tribunals, 
 where the ordinary powers of judicature are 
 placed By the constitution. 
 
 It was o'bferved in the laft lecture, that our 
 kings have long ceafed perfonally to execute 
 judicial magiftracy ; and that the ftated ju- 
 rifdiclions of the fuperior courts cannot be 
 altered by lefs authority than that of parlia- 
 ment, In my elementary difcourfe on the 
 feveral fpecies of magiftracy it is remarked, 
 that to execute and interpret laws are offices 
 effentially diftincl: ; they require different qua- 
 lifications, and habits of the mind ; and are 
 
 incapable
 
 tBOT.4- regulated by tbe general laws. 
 
 incapable of being centered in the fame hands 
 without manifeft danger and inconvenience. 
 Judicial magiftracy therefore is in England, 
 very properly, a feparate political power; and 
 is diftributed to a great variety of jurifdictions. 
 We mall begin with thofe that proceed by 
 the general law of the land : and in treating 
 x>f thefe fhall gradually afcend from courts of 
 the lowefl clafs to thofe of the higheft dig- 
 nity. 
 
 It may be proper to premife, that of thefe 
 courts for the administration of the general 
 law, the king may by his prerogative confti- 
 tute what number and in what places he pleafes. 
 So alfo he may iflue a fpecial commiflions for 
 doing juftice in extraordinary cafes, requiring 
 fpeedy remedy and animadverfion. But he * 
 cannot erect new jurifdictions, to proceed by 
 the Roman civil law, or other rule different 
 from the general laws of the land; nor a 
 new court of chancery. Neither c can he 
 grant judicial commiffions, which vary from 
 
 * V. ft. Weftm. z. 13 Ed. I. ft. I. c. 29. 
 k 2 R. A. 164. v. 2. Rufti. App. 77. 12 Co. 113. a 
 Lev. 24. 
 
 4 Inft. 163. 200. 2 Infl. 478. 
 
 H the
 
 98 Of courts, whofe proceedings are LECT-4. 
 
 the forms eftablifhed by the common law, or 
 by act of parliament. 
 
 / 
 We muft here alfo take notice of a wide 
 
 distinction, by which all courts, judging and 
 determining according to the general laws of 
 the land, are divided into courts of record, 
 and fuch as are not of record. In the former 
 the proceedings are written on parchment, 
 and inrolled : and to thefe a power of fetting 
 reaforiable fines in fo peculiarly applicable d , 
 that a grant of fuch authority conftitutes the 
 jurifdiction, in veiled with it, a court of re- 
 cord. For courts of record only (except it 
 be for a contempt committed in view of the 
 jurifdiction) can fine. It is alfo incidental to 
 thefe courts, that their e proceedings are tri- 
 able only by infpection of the record, as to 
 the fact of their having exifted ; and are re- 
 movable by writ of error after, or certiorari 
 before, judgment: and f that they have a 
 
 power 
 
 ' 
 
 A Lord Raym. 467. i Inft. .117. b. Salk. 144. 
 
 V. Dougl. i &c. 
 
 f Tais latter point fir William Blackftone, without citing any 
 authority, lays down (3 Black, comm. 289) very generally : it is, 
 I believf, the received dolririe, and is at leafl ftrongly coun- 
 tenanced by the cafe of Clerke v. Molyneux, as reported ( i Lev. 
 159.) The fame cafe is to be .met with i Keb. 845. i Sid. 269 ; 
 
 Uie 
 
 8
 
 L E c T . 4. regulated by the general laws. 9 9 
 
 j)ower to protect and difcharge fuitors and 
 witnefles from arrefts in going to and return- 
 ing from thefe tribunals. By the e ftatute of 
 Gloucefter, the fuperior courts cannot hold 
 pleas under the value of forty millings, ex- 
 cept trefpafs vi et armis, and cafes, in fome 
 meafure, concerning lands, as for detinue of 
 charters and title deeds. On the other hand, 
 inferior h courts, not of record, cannot hold 
 pleas for trefpafs vi et armis, becaufe they 
 cannot affefs a fine* Neither can they in ge- 
 neral entertain fuits for above the value of 
 forty millings, except actions of replevin ; and 
 that is an authority refiding in the merifFs 
 court by virtue of a * flatute as antient as the 
 fifty-fecond year o/ Henry the third. The 
 proceedings in courts, not of record, may b 
 tried, as to the truth of their exiftence, or 
 having actually been had, by a jury, like other 
 matters of facl, and not by mere infpection : 
 and they are k removable by writ of falfc 
 
 the diftinfHon which Keble attributes to the chief juftice, that 
 a court might punifh the contempt in arrefting, and yet not dif- 
 charge the party arrefted, is abfurdly incunulterrc: both theft 
 reporters are, in general, of queftkmable credit. 
 
 * 6 E. I. c. 8. 2 Inft. 311. k Garth, xp8. 
 
 1 St. of Marleberge or Marlborough, c. 21. 
 
 k 1 left. 117. b. ui. ** 
 
 H 2 judgment,
 
 i oo Of court s, ivbofe proceedings are LEcT.4* 
 
 judgment, (not of error, or certiorari) in or- 
 der that any illegality and injuftice may be 
 examined and redreffed before a fuperior ju- 
 rifdi&ion. Thefe are the principal diftinc- 
 tions between courts of record, and thofe not 
 of record. 
 
 \ 
 
 One requifite feenis common to all courts, 
 namely, that they ' ought to have a feal or 
 fignature, whereby to authenticate their pro- 
 ceedings. 
 
 In the progrefs of the prefent inquiry, con- 
 fined folely to courts governed by the general 
 laws of the land, I (hall take notice which of 
 them have a civil or criminal jurifdiction, or 
 both the one and the other. 
 
 The two moft fubaltern courts are thofc 
 incident to every fair or market, one of civil 
 jtirifdi&ion for redrefs in the way of a&ion m , 
 which is a court of record, and called the 
 
 4 Infl. 2co. . m 4 loft. 272. 
 
 court
 
 1 E c T . 4. regulated by the general laws. j 01 
 
 court of pipowders ; where the lord of the 
 franchife or his fteward is the judge : the other 
 has criminal authority for punitliing offences, 
 as by breaking falfe weights and meafures, 
 and is called the court of the clerk of the 
 market. No great ufe is now made of either 
 of thefe tribunals : but they deferve fome no- 
 tice, as manifefting the attention of our an- 
 tient lawgivers, in administering fuch eafy and 
 prompt means of juridical redrefs. 
 
 From thefe, which are incident to fairs and 
 markets, we may rife to fuch courts as apper- 
 tain to more important and extenfive fran- 
 chifes, as manors and hundreds. The lord of 
 every manor is entitled by himfelf or his ftew- 
 ard to hold a court baron, having a civil ju- 
 rifdi<5tion, but not of record. Courts baron 
 are of two forts, which cannot be better ex- 
 plained than in the words " of fir William 
 Blackftone, to which I mall on this occafion 
 refer without comment or addition ; and who 
 obferves, among other points, that the hun- 
 dred court is only a larger court haron, as 
 holden for a larger diflricl:. Within manors 
 
 3 Black. Comm. 3335. 
 
 H 3 and
 
 1 02 Of courts > wbofe proceedings are L E c T . 4. 
 
 and hundreds there is alfo a court of record, 
 Jraving criminal jurifdiclion, called the leet, 
 or view of frankpledge. This, fir William 
 Blackftone fays , is to be holden once a year 
 and not oftener. However p it certainly may 
 be holden oftener by prefcription : tho indeed, 
 according to * fir Henry Spelman, it is in fuch, 
 cafe called the refidue of the leet. Of this 
 court the fteward is the judge: but it is un- 
 necefTary to dwell on its jurifdiction, confider- 
 ing how low it hath declined in practice. 
 
 After thefe I am to mention courts holden 
 before the officers of counties, as firft, coro 
 ners, fecondly, fheriffs, and thirdly, juftices 
 of the peace. 
 
 I. Coroners are antient officers by the com- 
 mon law, fo called becaufe they deal chiefly 
 with pleas of the crown, or. criminal matters j 
 and were of old time the principal conferva-t 
 tors of the peace, and inverted with confider- 
 able dignity. There ought to be a certain 
 number of them in every county, in ibme 
 
 4 Black, comm. 270. P Mag. Carta, c. 35. 
 
 8 Co. 38. a. 2 Hawk. $6. \ Gl. v, Leta. 
 
 ( j 
 
 more,
 
 LECT4. regulated by tie general lawt, 103 
 
 more, in others fewer, according as the ufage 
 hath been. They are chofcn by the county ; 
 and this is the reafon why their authority was 
 not determined by the demife of the crown, 
 like that of other judicial magiftrates in ge- 
 neral, acting by the king's commifiion only, 
 till the contrary was enacted by the ftatute of 
 his prefent majefty mentioned in the lafl lec- 
 ture. Their office and duty are enlarged upon 
 in a very antient r act of parliament ; * which 
 being wholly directory, and in affirmance of 
 the common law, doth neither reftrain the 
 coroner from any branch of his power, nor 
 excufe him from the execution of any part of 
 his duty> not mentioned therein, and which 
 was incident to his office before the pafling of 
 that ftatute. This is the more deferving of 
 attention, becaufe the fame rule of conftruc- 
 tion may be of ufe on other occafions. The 
 court of the coroner is of record, and (as we 
 have juft feen) of the nature of criminal ju- 
 rifdictions. He is judicially to inquire ' con- 
 cerning the manner of any perfon's death, 
 who dies in prifon, or fuddenly, or wherever 
 any violence is fufpecled to have been ufed. 
 
 * St. de officio coronatoris, 4 E. I. ft. a. 
 ' 2 Hawk. 47. ' Ibid. 
 
 H 4 This
 
 JO4 Of courts, ivhofe proceedings are LECT.4. 
 
 This inquiry is made by the oaths of a jury, 
 andfuper 'vifum carports. Care muft be taken 
 for the proiecution of culprits found guilty by 
 fuch preliminary verdidl, and for fecuring the 
 forfeitures, which may in any cafe have in- 
 curred. 
 
 ' 
 
 II. The merifF of every county is by law 
 empowered and required to hold two courts, 
 one of criminal, the other of civil jurifdic- 
 tion. The "former is a court of record, call- 
 ed the fherifFs tourn, or meriff's leet, the 
 other w is called the county court, and is not 
 of record. By the common law % every me- 
 rifF ought to make his tourn or circuit; 
 throughout every hundred in his county twice 
 in the year, in order to hold a court in every 
 fuch hundred, for the reformation of common 
 grievances or nufances, and for the prefer- 
 vation of the peace and of good government: 
 for which purpofe, all the inhabitants, being 
 above the age of twelve years, and not r fpe- 
 cially privileged, are bound to attend. This 
 
 lilO 1 } 3* 
 
 2 Inft. 72. 4 Inft. 260. w 6Co.u.b. * 2 Hawk. 55. 
 y Lords fpiritual and temporal are cxcufed by ft. of Marie- 
 berge. 52 H. III. c. 10. 
 
 court
 
 LECT.4- regulated by the general laws. 
 
 court hath an extenfive jurifdiction over 
 crimes. In regard to which the principal 
 distinction is this 1 ; that it can take cogni- 
 zance of treafons and felonies only as they 
 ftand at common law, and not as they are 
 made fuch by ftatute : but if an offence, 
 which is a trefpafs at common law, be made 
 felony by a ftatute, it feems to be indictable in 
 this court as fuch trefpafs : and fo are all an- 
 noyances to the common detriment of the 
 king's fubjects, at leaft if they are of a public 
 nature, and not made punimable merely by 
 act of parliament. But it would be loiing 
 time to be more particular in treating of this 
 court, which is almoft become obfolete. The 
 other court of the meriff, (which is called the 
 county court, is not of record, and hath a ju- 
 rifdiction merely civil) is to be holden once 
 .in every lunar month. This is the feat of all 
 county elections. When it meets for the 
 choice of knights of the mire, by ft. 7 & 8 
 W. III. c. 25. 3. 5, it muft be holden at the 
 moft public and ufual place for forty years 
 laft paft, and cannot be adjourned elfe where 
 ivithout the confent of the candidates. The 
 
 2 Hawk. 66, 67. 
 
 county
 
 io6 Of courts, ivhofe proceedings are LECT.4. 
 
 county court hath alfo a considerable (hare of 
 jurifdiction in civil fuits, efpecially in real 
 actions. But its bulinefs and importance hath 
 been, even for feveral centuries, depreffed by 
 a great variety of co-operating occurrences j 
 and it retains few caufes, except thofe of re- 
 plevin, which, as was before intimated, are 
 frequently commenced here, and almoft as 
 frequently removed into a fuperior judicature. 
 
 III. I come now to ipeak of judicial of- 
 ficers of counties, whofe function is familiar- 
 jfed to daily obfervation, namely juftices of 
 the peace, the fucceflbrs of the antient con- 
 fervators of the peace. The latter became 
 3 fuch for the moft part by the election of the 
 freeholders of the county ; but might alfo b 
 have their authority by virtue of certain of- 
 fices, by tenure, or by prefcription. The firft 
 mention of juftices of the peace is in the title 
 of the ft. i E. III. ft. 2. c. 1 6 : by ft. 2 E. III. 
 c. 6. their power is underftood to be enlarged: 
 and two years afterwards, by ft. 4 E. III. c. 2. 
 they are exprefsly warranted to take indict- 
 ments, but, as it feems, not to try the perfons 
 
 * 2 Inft. 558. k 2 Hawk. 32, 33. 
 
 indicted.
 
 L E c T. 4. regulated by the general laws. j 07 
 
 indicted. However, from this period their 
 jurifdidion hath gradually increafed; and by 
 occafional ftatutes been extended to a great 
 variety of new objects. A general idea of 
 their duty and office may be collected by pe- 
 rufing the form of their commiflion, and their 
 oath ; which are among Dr. Burn's ufeful 
 compilations on this fubjedl. The necefTary 
 qualification, in refpect to eftate, to enable 
 juftices to act, which by the ft. 1 8 H. VI. c. 1 1. 
 was twenty pounds a year, is now raifed to 
 one hundred pounds a year, clear of incum- 
 brances, in poffemon, or an immediate rever- 
 fion or remainder of the clear yearly value of 
 three hundred pounds. This c qualification 
 may be either freehold or copyhold, and if in 
 pofTefiion, may be either of inheritance, or 
 for life, or a term of years, determinable on 
 Jives failing, or originally created for twenty- 
 one years or more, and may lay in any part of 
 England or Wales. Both the appointment 
 and difmimon of juftices are in the power of 
 the king, who exercifes it by his chancellor, 
 or keeper, or commiffioners of the great feal. 
 Every juftice of the peace, acting folely by 
 himfelf, (as he is impowered to do in many 
 cafes by adts of parliament, by way of fum- 
 
 e St. 5.0. II. c. 1 8. i8G.ILc.2c. 
 
 inary
 
 io8 Of courts, whofe proceedings are 
 
 mary conviction, and the like) is a judge of 
 record, and the proceedings before him are 
 accordingly removable by certiorarl. But the 
 higher points of his jurifdiction are difcharged 
 in the court of feffions : which, if it be ap- 
 pointed for executing a particular part of the 
 duty and authority of thefe magiftrates, is 
 called a 1 pecial feffion - 3 if it be not fo reflrain- 
 ed, it is- ftiled a general feffion. Of the latter 
 fort are the four quarter feffions; the pe- 
 riodical feafons of holding which are prefcrib- 
 ed by the ft. 2 H. V. c. 4. This court, as well 
 as the whole power of juftices of the peace, 
 is chiefly converfant about the punimment 
 and fupprefiion of offences, and extends over 
 crimes with very few exceptions. But for- 
 gery and perjury, confidered as they {land at 
 common law, are not indictable before thefe 
 judicial magiftrat.es d : for their authority, as 
 a jurifdiction created by act of parliament, 
 within the time of legal memory (that is, finee 
 * the commencement of the reign of Richard 
 the firfl) mufl be rigoroufly conflrued ; and 
 they were inflituted principally to reflrain and 
 punim actual violence and tumultuous force, 
 not fmifter and fraudulent dealings, Juftkes 
 
 * Sal. 406. 2 Hawk. 40. . 2 R. A. 269. 
 
 Of
 
 L E c T . 4 . regulated by the general laws. 109 
 
 of the peace, not long after their inftitution, 
 f were intruded with a power of coercion over 
 vagrants. This authority hath in later times 
 made it expedient, that they mould be the 
 judges of the laft legal fettlement of the poor; 
 of which fyftem of law I mall give fome ac- 
 count at the end of my ledture concerning of- 
 ficers of parimes and townmips. At prefent 
 we may obferve, that when to this effed: an 
 order has been made by two juftices of the 
 peace, determining that a pauper is legally 
 fettled in a particular parifh or hamlet, the 
 inhabitants thereof, if they are diflatisfied with 
 the decifion, may bring the caufe to a full hear- 
 ing on both fides, (the former being generally 
 X parte only) by way of appeal, at the quarter 
 fefiions holden for that county, in which the 
 place lies, from whence fuch pauper was re- 
 moved. The adjudications relating to the 
 fettlement of the poor have, for the lafl cen- 
 tury, greatly contributed to fill our modern 
 books of reports, fuch various comments and 
 gloffes have been put upon a few ftatutes, 
 which are apparently of very clear and ob- 
 vious fignification. This jurifdiction is ra- 
 ther of the civil than criminal kind; as it 
 
 f Su 7 R.u. c . 5. 
 
 afFeSs
 
 HO Of court Sywhofe proceedings are LECT.4* 
 
 affects the property and fubftance of the iriha* 
 bitants of the litigant parimes, by relieving 
 the one, and charging the other, with the 
 burden of maintaining the pauper whofe fet- 
 tlement is in difpute. As to the jurifdiction 
 of the feffions over its own members, the juf- 
 tices g cannot amerce each other for non-at* 
 tendance, or for contemptuous behaviour to 
 the court; it being more reafonable to refer 
 the punimment of perfons placed in a judi- 
 cial office, in relation to their conduct therein, 
 to other judges of a fuperior ftation. We 
 have before obferved, that each juftice of the 
 peace, acting feparately, is a judge of record $ 
 a fortiori therefore, when they meet at feffions, 
 their court bears that diftinction,, 
 
 Next in order I am to mention thofe courts* 
 which are holden twice in a year in moft 
 counties under the name of affixes-, for which 
 purpofe England is divided into fix circuits 
 or diftridts, excluding London and Middlefex* 
 where civil and criminal juftice is more fre- 
 quently adminiftered. This diftribution was 
 made in the year 1 176, at a general council of* 
 
 K 2 Hawk. 41. 
 
 the
 
 L E c T . 4. regulated by the general laws. 1 1 1 
 
 the realm, at which, according to an old * 
 hiftorian, there were prefent not only the 
 king, prelates, and nobles, but knights and 
 others holding their lands immediately of the 
 fovereign. The number'of thefe diftricts re- 
 mains the fame, but fome * alterations have 
 been made as to the counties refpectively in- 
 cluded in them. At the origin of this infli- 
 tution, three k juftices, itinerant or in eyre, 
 were appointed for each circuit : to whom 
 have fucceeded our modern j uftices of affize, 
 fitting by virtue of five feveral commiffions. 
 Three of thefe (namely the commiflion of 
 the peace, of oyer and terminer, and of gaol- 
 delivery) give them a power of trying all. 
 crimes and mifdemeanors committed within 
 the feveral counties refpe<ftively. It feems 1 
 that the fame perfons, being intrufted with 
 thefe diftinft commiffions, may proceed by 
 one where they have no jurifdiction by ano- 
 ther, and may execute them at the fame time. 
 For it is faid OI , that the commiffion of oyer 
 
 h Beneditus Abbas, cited by Spelm. hiil. ful reeno H. II. 
 */>. Wilk. LI. A. S. 329, 330. 
 
 1 Thus Staffordihire was antiently part of the midland, and 
 Oxfordftiire was comprehended in the home, circuit. Spelqi. ibid. 
 
 k Spclm. ibid, l z Hawk. 20. m j. Hawk. 
 
 21.15. 
 
 and
 
 112 Of courts 9 wbofe proceedings are 
 
 and terminer does not extend to indictments 
 taken before other juftices, and that of gaol- 
 delivery is confined to perfons in actual cuf- 
 tody. The other two commifllons are thofe 
 of affize and " nlji prius, which convey chiefly 
 a civil jurifdidtion, and give thefe juftices 
 authority to try fuch ifTues of fact, as are 
 joined between the parties, in actions com- 
 menced in the fuperior courts at Weftminfter; 
 For the records are made up in thofe courts^ 
 and then come down to be tried in the proper 
 county, before thefe modern itinerant juftices; 
 after which they are returned back to the 
 higher jurifdictioiij with the verdict of the 
 jury, for the purpofe of entering up judg- 
 ment, and carrying that judgment into exe- 
 cution. The juftices of affize and of nifi prius 
 have % as fuch, befides their civil jurifdkx 
 tion, authority in certain criminal matters^ 
 by virtue of feveral ftatutes. The perfons to 
 whom thefe commiffions are delegated, are 
 the twelve judges, and ferjeants at law, or 
 ether barrifters of eminence, to fupply occa- 
 
 * By virtue of like commifiions of nifi prius, the chief or 
 other judge of the fuperior courts refpeftively fit in and after 
 term, for trials of caufes laid in London or MiddlefeXi 
 
 2 Hawk. 2831. 
 
 fional
 
 t E c T . 4. regulated by the general laws. 113 
 
 fional abfences. For the antient ftatutes, 
 which forbid the ifTuing of overs and termi- 
 ners except to juftices of the one bench 
 or the other, or to thofe in eyre, are reftrain- 
 ed, by ferjeant Hawkins's p judicious interpre- 
 tationj to mean fpecial commiffions only, 
 granted at the complaint of particular per- 
 fons, which practice hath long been obfolete. 
 The courts holden before our prefent itinerant 
 juftices, exerciiing either their civil or cri- 
 minal jurifdidtion, are of record; and they 
 have not (like moft of the antique tribu- 
 nals before fpoken of) abated in their con- 
 fequence and fplendor from their firft inftitu- 
 tion. It is eafy to obferve the beneficial 
 effects of this mode of adminiftering juftice 
 in many refpects, and particularly in preferv- 
 ing throughout the realm a general uniformity 
 
 in the law. 
 
 i 
 
 The courts laft-mentioned, communicating, 
 as we have feen, with thofe of Weftminfter- 
 hall, lead us, by an eafy tranfition, to fuch 
 jfuperior tribunals. 
 
 f z Hawk. 22, 23, 
 
 I Authors
 
 U4 Of courts, whofe proceedings are L E c T . 4. 
 
 Authors feem agreed, that in the Norman 
 reigns the fupreme power of judicature refided 
 in the aula regis, where juftice was adtnini- 
 ftered by the fovereign, or in his prefence, or 
 palace, and by the great officers of ftate, and 
 the prelates, earls, and nobles of the realm. 
 The diiTolution of this great court feems to 
 have been rather gradual than fudden. Other 
 judicatures fucceffively branched from it. 
 Altho the houfe of lords were for a long 
 period folicited by petitioners to exercife an 
 original jurifdiclion over caufes, they uniformly 
 remanded the fuitors to the (then newly fe- 
 parated) inferior tribunals, referving to them- 
 felves, when appealed to, their prefent right 
 of final determination. When this fyftema- 
 tical change therefore began to take place, 
 the king's bench was founded out of the cri- 
 minal authority of the aula regis-, its power 
 in civil aclions between party and party gave 
 origin to the common pleas ; and q matters of 
 revenue became the province of the exche- 
 quer j all of which tribunals, fo founded and 
 creeled, have for many ages exceeded the li- 
 mits of their firft institution. 
 
 i But earlier probably than the reparation of the two other 
 judkatures. Mad. hift. excli. 
 
 * I. In
 
 t E C T . 4. regulated by the general laws. 115 
 
 I. In the exchequer all perfonal actions may 
 be brought, and fuits in equity commenced, 
 the plaintiff in both (fictitioufly for the moft 
 part) alleging himfelf to be the king's 
 debtor, in order to give' this court a right of 
 entertaining the caufe. The nature of equi- 
 table jurifdiction, as adopted in England, I 
 (hall confider in a future lecture : at prefent 
 obferving, that when this court fits in that 
 capacity and character, the chancellor of the 
 exchequer has a voice, though he rarely ex- 
 erts it, in giving judgment, and that from its 
 decrees an appeal lies immediately to the houfe 
 of lords. The exchequer, from its fuperin- 
 tendent authority in regard to the royal reve- 
 nue, is the proper court for filing informations 
 againft thofe who tranfgrefs the laws of the 
 cuftoms and excife, in order to recover the 
 penalties and forfeitures due to the crown. 
 
 II. In the common pleas (which by magna 
 carta is ordained to be holden in aliquo r certo 
 Joco, and hath iince almoft invariably fate at 
 
 * But this was not taken fo ftri&ly as to prevent its being ad- 
 journed, as well as the king's bench and exchequer, to Reading, 
 on account of the epidemical ficknefs in the metropolis, in Mich. 
 term, i C. I. 3 Cro. 13. 
 
 1 2 Weftminfler)
 
 1 1 6 Of courts y wbofe proceedings are L E c T . 4* 
 
 Weftminfter) all civil actions may be brought, 
 that is, real, perfonal, and mixed ; of which 
 I hall in my third part of this courfe of lec- 
 tures attempt at large to explain the diftinc- 
 tions. Real actions are appropriated to this 
 court folely, of which kind are fines and re- 
 coveries, in daily ufe for the fecurity of a title 
 to lands. But in all actions, the proceedings 
 in the common pleas are grounded on an * 
 original writ out of chancery, except where 
 a perfon privileged by his attendance to fuc 
 and be fued here is a party. Prohibitions ', 
 to reftrain inferior courts from incroaching to 
 themfelves ufurped jurifdiction, may iflue as 
 well out of the common pleas or exchequer, 
 as the king's bench, but the latter is more 
 commonly reforted to for this purpofe. The 
 common pleas is fo properly a court of civil 
 jurifdiction, that it cannot "receive commiffion 
 or authority to inquire of felony or treafon. 
 
 III. The king's bench, on the other hand, 
 is, according to its original inftitution and 
 primeval flate, a court of criminal jurifdic- 
 
 4 Inft. 99. 
 
 t Vau 157. Sho. ca. par!. 58 &c. Pal. 525, 6. 
 
 n 2 Hawk. 2. 
 
 tion:
 
 L E c T . 4. regulated by the general laws. 117 
 
 tion : in which capacity it is the highefl or- 
 dinary tribunal, (that is, next under the lords 
 in parliament) having authority to hear and 
 determine all capital and inferior offences of 
 a public nature, and not being (like adultery, 
 herefy, and inceftuous marriages) within the 
 peculiar province of the eccleilaftical judge, 
 " Neither is it necefTary," fays ferjeant 
 Hawkins *, " in a profecution in this court, 
 to (hew a precedent of the like crime former- 
 ly punimed here, agreeing with the prefent in 
 all its circumftances : for this court, being 
 the cuftos morum of all the fubjedts of the 
 realm, wherever it meets with an offence 
 contrary to the firft principles of common 
 juftice, and of dangerous confequence to the 
 public, will adapt fuch a puniihment to it, 
 as is fuitable to its heinoufnefs V This 
 is alfo, as I have juft faid, the court ufually 
 reforted to for prohibitions to inferior tri- 
 bunals, in order to confine them to the due 
 limits of their jurisdiction. It exercifes like- 
 
 w 2 Hawk. 6. 
 
 * It is an old notion, that the prefence of this court in any 
 county fufpends the jurifdidtion of juftices of oyer and terminer, 
 and other commiffions of criminal judicature. (4 Inft, 73.) But 
 this doctrine is fo narrowed by conitrudtion, as to have little ef- 
 feftual meaning. (2 Hawk. 8.) 
 
 I wife
 
 1 1 8 Of courts, wbofe proceedings are L E c T . 4 , 
 
 wife a vifitatorial authority over lay corpora-, 
 tions, determining on the franchifes in cities 
 and boroughs, and iffuing a precept, called a 
 " mandamus," to admit a freeman, or the like, 
 according to fuch judicial decifion. A man- 
 damus, which is fometimes termed a prero- 
 gative writ, may alfo, for divers purpofes and 
 occafions, be awarded to perfons in a public 
 or private employment or ftation. Befides 
 which, all perfonal actions are, and for feve^ 
 ral centuries have been, cognizable in the 
 king's bench, as well by original writ out of 
 chancery, as without fuch writ. But the 
 king's bench y cannot be inveiled with autho^ 
 rity to decide the right in a mere real action, 
 Laftly, this jurifdidtion is alfo a court of ap- 
 peal, by writ of error, from the common 
 pleas, and is fuppofed holden in the prefence 
 of the king, all the proceedings being ililed 
 and entered formerly, ' coram ipfo rege," 
 and now (fince the ufe of the vernacular 
 language has been enacted) " before the king 
 himfelf." 
 
 The confUtutional power and nature of 
 thefe great and fuperior courts, derived from 
 
 r 2 Hawk. 2. 
 
 the
 
 LECT. 4. regulated by the general laws. 119 
 
 the^antient aularegis, cannot be altered, as I 
 have before intimated, but by aft of parlia- 
 ment ; and that, as an improbable fuppofition, 
 I may fay, would be a dangerous and rafh in- 
 novation. A pofitive z ftatute alfo, unlefs 
 exprefs negative words are inferted, is not 
 conftrued to abridge or defeat their jurifdic- 
 tion. 
 
 The judges of thefe courts regularly fit 
 every day in full term, except a Sundays, and 
 the b feftivals of the purification, the afcen- 
 fion, and St. John the Baptift. The efla- 
 blifhment of the c terms, for juridical bufi- 
 nefs, is as antient,as the Saxon times. The 
 terms have been, from time to time, confi- 
 derably fhortened : for v they antiently includ- 
 ed almoft the whole year, except the holy 
 feafons of advent, chriftmas, lent, eafter, and 
 whitfuntide. But the chancery is faid to be 
 always open; there is no certain or necejfary 
 recefs or intermifiion, ordained by any law 
 
 z Sav. 134. 4 Burr. 15951602. 
 
 b i Inft. 135. a. 
 
 e Spelm. Gul. I. ap. Wilk. LI. A. S. 290. LI. Canuti R. 
 Coll. i. le. 17. ' An ordinance of this kind is called by Dod- 
 dridge, a very learned judge in James the firft's reign, an al of 
 parliament made by the Saxons. 2 Roll. 443, 
 
 1 4 for
 
 1 2 o Of courts, ivhofe proceedings are L E c T . 4,, 
 
 for that purpofe, altho in fact there is a flag- 
 nation of buiinefs for about two months in 
 the long vacation ; the offices are then mut, 
 and the fuitors cannot proceed. The exche- 
 quer d holds fittings, for equity bulmefs, out of 
 term; at which alfo a matter relating to the 
 revenue may be difcuffed. 
 
 The number of judges in each court are, 
 and ufualiy have been, four; but five have 
 fometimes been appointed; and under th,e 
 uiurpation of Cromwell 6 , in the beginning 
 of Trinity term 1655, juflice Afk fate alone 
 in the king's bench, then called the upper 
 bench, being the only judge thereof, except 
 a chief juflice, then newly conflituted, and 
 who the fame day took his place accordingly. 
 Eleven of the twelve judges are fo made by 
 patent, the chief juitice of the king's bench, 
 who is filled chief juflice of England, and 
 
 * V, Mad. hift, exch. c. ?o. 4, where jt }s alfo faid, this 
 court may fit on Sundays. For this ftrange poiidon one prece- 
 dent or.ly is vouched of a fummons, in 1 1 H. III. for the Lord's 
 day, in a revenue matter. If fuch practice really obtained, and 
 1 was under a neceffity of accounting for it, I fhould attribute it 
 partly to the maxim, that the king's rights were not to be de- 
 layed, and partly to the length of the fabbath, by the Anglo- 
 Saxon laws, including part of Saturday and Monday. LI. 
 fcadg. R.le. 5. 
 
 c Sty. 45 2. 
 
 he
 
 t E G T . 4. regulated by the general laws, j 2 j 
 
 he only, being created by f writ. I mentioned 
 in the laft ledure, that, by the 1 2 & 1 3 W. 
 III. c. 2. and i G. III. c. 23. the commifr 
 fions of the judges of thefe fuperior courts, 
 formerly granted durante bene placito," are 
 continued to them " quamdiufe bene gejjerint" 
 and are not vacated by the demife of the 
 crown, which farther innovation was enact- 
 ed by the latter of thofe ftatutes : and I alfo 
 intimated, that their conduct in thefe impor- 
 tant offices feems properly inquirable only 
 in parliament. Thofe, who are inclined to 
 give any credit to the g violent remonitrance 
 of the houfe of commons about the end of 
 the year 1641, muft believe, that the very 
 antient commiffions of the judges were made 
 to them " quamdiu fe bene gefjerint" and 
 that " durante bene flacito" was then a new 
 claufe. 
 
 f He was antiently made by patent alfo : the alteration took 
 place under E. I. when his title was changed fromfummxs to ca- 
 fitalis jujiitiarius. 4 Inft. 74, 75. In the Yearb. 20 H. VII. 7. a. 
 the king himfelf is ftiled chief juftice, meaning that all juridical 
 commiffionj muft proceed from him. ThepafTage, which feems 
 but a loofe expreffion, is -never thelefs quoted, u Rep. 85. b. 
 Fort. 386. 
 
 s 10 Parl. hilt 68. Fort. 386. The chief juftice of the 
 
 king's bench was however certainly created during pleafure in 
 Edward the firft's time. (4 Inft. 74, 75.) But the chief and 
 other barons of the exchequer were created, in fir Edward Coke's 
 time, quamdiufe bene gefferint* (4 Inlt. 117.) 
 
 When
 
 122 Of courts, whofi proceedings are LECT. 4. 
 
 When any of thefe courts is equally di- 
 vided in opinion, or the matter is of great 
 doubt and importance, the caufemaybe h ad- 
 journed 'into the exchequer chamber, before 
 the twelve judges, on which occafions the 
 chancellor has fometimes affifted. This great 
 court or meeting of the judges is * holden 
 by the authority of the antient common /aw, 
 All the twelve judges alfo have frequently 
 met to determine on the effect of a fpecial 
 verdift in criminal cafes; as for example, 
 whether the fa&s found make the prifoner 
 guilty of murder or manflaughter only. 
 
 There are befides two other courts of ex- 
 chequer chamber conftituted by afts of par ~ 
 liament. The former of thefe 19 framed by 
 the ft. 31 E. III. c. 12. k and confifts of 
 the chancellor, treafurer, and ! juftices of each 
 bench, who are impowered by writ of error to 
 review the judgments given in the common 
 law court of the exchequer ; for its decrees 
 
 h i Lev. 7. i Inft. 72. a. 4 Inft. 68. 110. 119. 26111.146,7. 
 
 1 4 Inft. 68. This matter is much miftaken, 2 Com. dig. 
 480. poft left. VI J I. 
 
 k See alfo ft. 31 El. c. i i. 
 
 1 " Taking to them the juilices and other fage perfons, fuch 
 as to them feemeth to be taken." 
 
 in
 
 I, E c T , 4. regulated by the general Jaws. 123 
 
 in equity, as we have juft feen, are fubject 
 to appeal only in the houfe of lords. 
 
 The other court of exchequer chamber is 
 created by the flatute m 27 El. c. 8. confining 
 of the juftices of the common bench and the 
 barons of the exchequer, and has authority 
 by writ of error to reverfe or affirm judg- 
 ments in the king's bench, not fo generally 
 as that erected by the former act of Edward 
 the third, but in certain actions exprefsly 
 enumerated, and "having been commenced in 
 the court appealed from, without original 
 \vrit out of chancery. 
 
 I fhall now barely mention fome few 
 other, and thofe criminal, courts, whpfe pro- 
 ceedings and decilions are governed by the 
 general laws of the land, tho their jurifdic- 
 tion is confined as to the objects of it, or the 
 locality of the offence. Such is that erected 
 
 m See alfo ft. 31 El. c. i. 2. 
 
 B i Alt. pr. B. R. 439. 4159. If a writ of error is brought 
 
 in this court of exchequer chamber, where the fuit in the king's 
 bench is by original out of chancery, fuch writ of error is no 
 fuper/edeas, and merely void. But fee Dougl. 352. and n. 
 
 by
 
 124 Of courts, ivbofe proceedings are L E c T . 4 . 
 
 by the ft. 3 H. VII. c. 14 ; which is to be 
 holden before the fteward, treasurer, and 
 controller, of the king's houfehold, for the 
 trial of his majefty's fworn fervants, to whom 
 certain crimes, particularifed in the act, are 
 imputed. Another criminal court, nearly 
 refembling the former, derives its inflitution 
 and authority from the ft, 33 H, VIII. c. 12 5 
 and has cognizance of treafons, and certain 
 other offences, committed in the royal pa- 
 laces. The high fteward alfo of the uni- 
 verfity of Oxford prefides in a court, in 
 which matriculated members may be tried 
 for treafon, felony, or mayhem, by a jury, as 
 at common law. The chancellors of both p 
 the univerfities have cognizance like wife over 
 mifdemeanors ; but, having power to proceed 
 by different rules than thofe of the common 
 law, their courts do not fall within the com-, 
 pafs of the prefent inquiry, 
 
 The fupreme power of judicature, which 
 
 4 Black, comm. 274, 5 ; where it appears that cognizance 
 in this cafe is not to be claimed by the party, as in civil aclions, in 
 order to amene them before the chancellor's court, but by the uni- 
 verfity magiftrate. 
 
 P Godb. 201. 3 Bui. 212. Skin. 665. 
 
 regulates
 
 1 E c T . 4. regulated by the general laws. 125 
 
 regulates itfelf by the general laws of the 
 land, is the civil and criminal jurifdidlion of 
 the lords in parliament : of which I fliali 
 treat at large in diftincl: lectures. 
 
 I have alfo refer ved the office and court of 
 the lord high chancellor to be feparately dif- 
 cufled : who has authority to hold a court 
 (nearly obfolete) of common law ; and whofe 
 equitable jurifdi&ion, tho it is fometimes 
 contrafted with the common law, is afcertain- 
 ed, limited, and controlled, by preceding de- 
 terminations, is formed into a known fyftem, 
 and hath fo generally incorporated itfelf with 
 our legal polity, in matters of contefted pro- 
 perty, as to make it necefTary very frequently 
 to refort to that criterion. 
 
 I have alfo omitted particularly to notice 
 the exempt local jurifdi&ions, which are 
 eflablimed in cities, boroughs, and larger dif- 
 tridls, tho fome of thefe have no other rule of 
 decifion befides the general laws. Thus the 
 * courts of the cinque ports proceed according 
 to the courfe of the common law ; and thofe 
 
 i 2 Inft. 557, 
 
 Of
 
 126 Of Courts* &C. 'LECT.4* 
 
 of the commiflioners of fewers are governed 
 by general a&s of parliament. But it was the 
 obje<fl of this inquiry in fome meafure to 
 difplay the general fyftem of 'ordinary judicature > 
 eftablifhed by the juridical part of our confti- 
 tution. 
 
 LECTURE
 
 LECTURE V. 
 
 Of courts -, #0/ proceeding by the general Jaws of 
 the land. 
 
 IN this lefture I propofe to treat of certain 
 courts, in which, modes of practice, and 
 principles of decifion, differing and diftin- 
 guifhable from the general laws of the land, 
 have been allowed to prevail. Thefe jurif- 
 dictions, and the fubjecl: matters of their de- 
 terminations, though circumfcribed and con- 
 traded in their limits, a form a part of our 
 legal polity, and are not undeferving of fome 
 inquiry, fmce it is necefTary to learn the ex- 
 ceptions to a rule, as well as the rule itfelf, 
 I muft here be underftood to fpeak of courts, 
 which, in their constitution, and the tenor of 
 all their judgments, have little dependence on 
 the more general laws. For the fupreme 
 
 - *4lnft. 321. 
 
 courts
 
 12$ Of courts > not proceeding by LECT. 5. 
 
 courts of common law, occafionally and iri 
 certain cafes, pay a regard to, and govern 
 themfelves by, the law of nations, and parti- 
 cularly mercantile cuftoms, which are a part 
 of it, and both are faid to be parts of the law 
 of England, being adopted in matters per- 
 tinent to them. I muft alfo reftrain my 
 meaning to fuch courts, where the particu- 
 lar code is looked up to as a rule and invari- 
 able guide, not cited in the way of perfuafion, 
 as the imperial law fometimes is in all our 
 tribunals, in the courfe of argument merely, 
 or illuftration. But the jurifdictions, which 
 I propofe to treat of, have, in all their caufes, 
 peculiar, exempt, and controlling grounds of 
 determination. 
 
 I. I mall begin this detail with fome 
 mention of the laws and courts of the forefts, 
 in confideration of the extenlivenefs, as well 
 as antiquity of this fyftem: and if thefe re- 
 mains of legal antiquities afford little practi- 
 cal inftrucftion, they may at leaft gratify a 
 tranfient curiofity, and, like the ruins of ba- 
 ronial caftles or monaftic cells (which here- 
 tofore overfpred the country, and were once* 
 
 formidable
 
 t E C T . 5 . the general laws of the land. 12$ 
 
 formidable and impolitic) may now be viewed 
 Without either terror or difguft. 
 
 The number b of thefe fbrefts is com- 
 puted to be lixty-eight; tho the names of 
 more are delivered down to us, poffibly be- 
 caufe fuch as were very large, or ran into 
 different counties, had feveral appellations. 
 There were e befides thirteen chafes, and 
 about feven hundred and eighty-one parks $ 
 but d both thefe were governed by the com- 
 mon law, and exempt from the cuftoms of 
 the foreft. As to offences committed with-* 
 in the limits of a foreft, a diftin&ion e was 
 taken between felonies and inferior crimes* 
 The former, notwithftanding their locality, 
 were cognizable only before the judges, and 
 according to the courfe of the common law* 
 But trefpaffes were inquired of before the 
 ju ft ices of the foreft, men fkilled in thofe 
 laws. A foreft granted to a fubjedl was 
 thenceforward confidered as a chafe -, { unlefs 
 the grantee, of which there have been in- 
 flances, had a fpecial authority of appointing, 
 or applying for the appointment of, juftices. 
 
 b Spelm. gl. v. forefta. c Ibid. 4 Inft. 314. 
 
 e 410(1.315. f 4lnft. 314. 2 Bui. 295. 
 
 K in
 
 1 3 Of courts, not proceeding by LECT. f* 
 
 in eyre. Purlieus g , are places added to forefb 
 by Henry the fecond, and his two immediate 
 fuccefibrs, which have been difafforefted by 
 the famous u carta de for eft a ; the appellation 
 fignifying places entire, clear, or exempt from 
 the foreft : hence a chafe, which never was 
 a foreft, can have no purlieu. The owners 
 of fuch diftrifts may hunt therein, and other- 
 wife occupy them, as their foil and freehold > 
 After * this charter hath been formally carried 
 into execution, and k above thirty times con- 
 firmed in parliament, between its enaction and 
 the fourth year of Henry the fifth, it feems 
 very ftrange to fay 1 , that as to fome purpofes 
 the purlieu is foreft flill ; though it may be 
 true, that the king hath a property in the ftray 
 deer found there, except as againft the pro- 
 prietor of the land. 
 
 < 4 Inft. 303. By Man wood, who wrote on this fyftem, ab- 
 furdly called pouralees. 
 
 h C. i. 3. * 4 Inft. 303. k Ibid, 
 
 1 Manw. c. xx. 4. As to the inftance given, that a 
 granger cannot hunt the purlieus, that certainly does not prove 
 them to be foreft : and as to the owner's electing to have them 
 confidered as foreft, not taking advantage of the ftatute in one 
 refpedl, in order to have benefit of common in another, that is a 
 cafe, if it erer exifted, of the ftatute's not operating, in this be- 
 half, to any extent whatfoever.
 
 t E c T . 5 . the general taws of the land. 1 3 1 
 
 As to the antiquity of this fyftem, fir 
 Henry Spelman m gives us a n code of foreft 
 laws, fet forth by fo early authority as that of 
 king Canute. Yet this is not compiled with 
 his general laws ; among p which it is ob- 
 fervable, that he promulgates the following 
 juft permiffion todeftroy what is called game : 
 " voto etiam lit qullibet homo fit dignus venation* 
 fua infyfaa & in agrlsjibi propriis, ac abjlineat 
 qiiilibet a venatione med ubicunque pacem haberl 
 vo/o pro plena mulct a" The word q pite 
 (wite) in the original means a fine impofed 
 for trefpafTes, or offences, not being of the 
 mofl atrocious kind. The words " ubicun- 
 que pacem baberi veto " refer to the king's 
 arbitrary exertion of power in afforefting any 
 diftricl: he pleafed. This r was done by ap- 
 pointing commiffioners to furvey and circum- 
 fcribe by manifeft boundaries the felecled fpot. 
 The furvey was returned into the chancery, 
 or fome other regiftry, and then proclama- 
 
 m Gl. v. forefta. 
 
 But the authenticity of that colle&ion is difputed. 4 Infl. 
 320. 
 
 Wilk. LI. Anglo-Sax. 
 
 v C. 77. There is a licence to the fame effect in his foreft 
 
 laws. C. 30. 
 
 4 Spelm. gl. v. wita & v. angildum. 
 
 * Spelm. gl. v. forefta, 
 
 K 2 tion
 
 132 Of courts, not proceeding by LECT. Jt 
 
 tion was made thro the county, that fuch a 
 diftrict was formed into a foreft, and under the 
 foreft laws, and all men were prohibited from 
 being fo daring as tojiunt therein. But this 
 unreafonable power, fir Edward s Coke thinks, 
 never, was a part of the king's juft preroga- 
 tive ; and that, altho it was claimed and ex-- 
 erted by one of our beft princes, Henry the 
 fecond, yet it was againft right fo to drive 
 his fubjects from their landed inheritance. 
 For that great lawyer maintains, that the 
 charter of the foreft is, in general, but a de- 
 claratory law, reftoring the fubject to his for- 
 mer right j by which memorable ordinance, 
 fuch forefts as were made by the king's three 
 immediate predeceffors are required to be dif- 
 afforefted. The forefts before that period 
 were for the moft part under arbitrary go- 
 vernment: for it feems an abufe of language 
 in thofe times to fpeak of foreft laws. King 
 Canute indeed, as we have feen, is faid to have 
 published his edicts on this fubjedr, made 
 " cum confilio primariorum hominum meorum" 
 as it is exprefled* But if that code, while it 
 continued in force, reduced the principles of 
 decifion on any occafion to a certainty, yet 
 
 4 In ft- 300. 
 
 fuch
 
 L c T . 5 . the general laws of the land. 133 
 
 fuch was its feverity, that the people were 
 little gainers by its promulgation. Henry r 
 the fecond eftablifhed certain rules called the 
 affize of the foreft, to be obferved by the 
 juftices, who held courts in fuch territories : 
 but thefe ordinances, if milder than thofe with 
 the fame title framed by his predecefforjs, ftill 
 left the nation melancholy caufe for complaint 
 and alarm. However the exertion of arbitrary 
 power, as well as the rigour of an oppreffive 
 fyftem, in matters relating to the forefls, was 
 laid under effectual reftraints by the " much- 
 wanted charter of the foreft, coeval with, 
 and of little lefs importance than, the. great 
 charter. By this law, killing the king's deer* 
 ceafed to be an offence punimable capitally, 
 or at leaft with arbitrary feverity ; and other 
 falutary provilions were enacted, -betides ro- 
 ftoring to the true proprietors the lands, of 
 which they and their anceftors had, fmce the 
 acceffion of Henry the fecond, been de- 
 fpoiled. 
 
 The principal court of the foreft is the 
 juftice feat; which x is fuch a neceflary inci- 
 
 ' Spclm. gl. v. forefta. 
 
 " Growler dcfiderata & atiquanJo rcdditaphbi. Cic. in Ver. 
 
 V Car. de for. c. 10. Manw. c. xxiv. i. 2 Bui. 298. 
 
 K \ i dent 4
 
 Of courts, not proceeding by LECT. 5, 
 
 dent, that there cannot be aforeft without it. 
 This y court is to be holden before one of the 
 two chief juftices in eyre, refpeftively con^ 
 touted for the forefls north or fouth of the 
 river Trent, and cannot be kept oftener than 
 every third year. It is inverted with both 
 civil and criminal authority : for it may hear 
 and determine, according to the law of the 
 foreft, all trefpafTes within the forefl; and 
 may alfo adjudge upon claims of franchifes, 
 privileges, and immunities, within the fame 
 limits. In z this court offences, on prefent- 
 ment thereof by a grand jury, or the removal 
 hither of convictions had in an inferior jurif- 
 diction of the foreft, receive fentence of fine 
 and imprifonment. Difputed claims of fran^ 
 chifes and the like are referred to the minU 
 fters of the foreft to be afcertained. The 
 errors of the juftice feat may* be redrefTed in 
 the court of king's bench. I iliall not dwell 
 on the fwainmote, (which it is b faid a fubjed: 
 may have a right of holding in a chafe) and 
 other courts of the forefls, this whole fyflem 
 of juridical opprelfion having, very beneficially 
 fqr the fubject, fallen into difufe. There are 
 
 4 Inft. 291. * W. Jon. 282, 283. 287. 
 
 4. Inft. 294. * ^ Bui. 295. 
 
 however
 
 1 E c T . 5 . the general laws of the land. 135 
 
 however fome late acts of parliament which 
 punifh deer-ftealing and other offences in the 
 royal fojefts with confiderable fcverity, but 
 not difproportionate to other parts of the cri- 
 minal code, and the accufations are to be judg- 
 ed of and fentenced in the ordinary tribunals. 
 
 II. The next fpecies of courts, which I 
 fhall mention as derogating from the known 
 and general rules of the common law, are fuch 
 as govern themfelves by local or feculiar 
 Cujioms.^ Of this kind is the court antiently 
 holden before the lord high con {table and earl 
 marfhal of England, the criminal jurifdi&ion 
 of which hath long fince grown obfolefe. 
 But in its civ;l capacity, as a court of chivalry 
 or honour, it is faid c to have an abfolute de- 
 termination in matters of pedigrees, defcents, 
 and armories. The d proceedings are in ge- 
 neral according to its own ufages and cuftoms, 
 'and in cafes omitted, according to the Roman 
 civil law. Other c courts of this kind, and 
 which are guided by peculiar cuftoms in de-f. 
 rogation of the general laws, are fuch as the 
 
 4,Mod. 128. * 4 Inft. 125. i Atk. 296. 
 
 * ^ lr.lt. 229. 248. 
 
 K 4 court*
 
 136 Of courts, not proceeding by LECT. 5, 
 
 courts of confcience in London, of the mi- 
 ners in Derbyfhire, and of the ftannaries in 
 Cornwall. Here likewife may be ranked the 
 chancellor's courts of each univerfity. That 
 of Oxford may proceed < fecundum legem terrcz 
 aut morem univerjitatis. The latter words, 
 " morem univerfitatis," befides their own locaj 
 cuftoms and ilatutes, have been introdudtive 
 of the civil law of the Roman empire. The 
 6 chancellor of Cambridge's court avowedly 
 proceeds by the civil law. But thefe courts 
 have no jurifdiclion in matters of h freehold : 
 and they ' are controllable, by way of prohi- 
 bition, in the king's bench, if they are guilty 
 of exceeding their prefcribed powers of ju- 
 dicature. If a matriculated member, intitled 
 to the privilege of thefe courts, is fued elfe- 
 where in a perfonal action, he may put in a 
 claim of cognizance, as it is called, in order 
 to have the caufe remitted to the academical 
 judge. But great exactnefs is required in 
 refped: to the time and form of thefe claims 
 of cognizance : and they have fo often 
 failed, that if the privilege is intended to fub 
 
 ' Lit. 10. 
 
 8 Secundum jus civile & eorum prwilegia f? coyfuetudines \ 
 St. univ. Cantab, c. xlii. ad fin Hal. anal. Rom. civ. law. 148. 
 h 3 Cro. 88. ' i Sal. 343. 
 
 flft,
 
 t E c T . 5 , the general laws of the land. 137 
 
 fift, it ought to be better regulated and afcer- 
 tained. Another fpecial jurifdi6tion of this 
 kind is that of the college of phyficians; 
 which yet is fcldom, if ever, clafled among 
 courts proceeding by rules derogatory from 
 the general laws. This k however is a court 
 of record; for otherwife it could not exert a 
 general power to fine or imprifon. Their ju- 
 ridical power for the due exercife of medicine 
 in and about the metropolis, is of confiderable 
 force; and ' it is frequently to be met with, as 
 the fubjecl of difcufuon, in our books of rer 
 ports. 
 
 III. I mall next fpeak of a tribunal much 
 more important, neceffary, and flouriming in 
 practice, than any of the foregoing, I mean 
 the high court of admiralty ; in which the 
 Roman civil law has greater prevalence than 
 in our other Britifh judicatures. For this 
 court, from the nature of its jurifdicftion, muft 
 have frequent recourfe to more general prin- 
 ciples than thofe of municipal law. The 
 Roman inflitutions therefore have deference 
 paid to them, not fo much in regard to the 
 authority which ordained them, as becaufe 
 
 * Lord Raym. 454. ' V. Burr. 2186 &c. 
 
 they
 
 j 3 S Of courts, not proceeding fy L E c T . 5 . 
 
 they contain a rich treafury of written wif- 
 dom, and of the law of nations. Thejurz/pe- 
 riti, whofe writings compofe the pandects or 
 digefts, came from the fchools of philofophy 
 to the courts of jufHce. The Roman people 
 maintained a general intercourfe with the ci- 
 vilized world \ and in different ages they libe-* 
 rally m adopted the jurifprudence of other 
 nations, as particularly, in regard to this very 
 fubject, the maritime law of Rhodes. Befides 
 which, the Roman civil laws were for this 
 purpofe adapted and recommended to us by 
 their reception in other countries; it being 
 highly expedient, that the admiralty courts of 
 different regions fhould obferve and adhere to. 
 an uniformity of deciiions, Thefe institutions 
 however are not the only guide of admiralty 
 judicature. The maritime cuftoms of civi- 
 lized ftates are attended to, which have been 
 digefted into fyftematical collections of receiv- 
 ed authority ; and among thefe, none .perhaps 
 hath maintained a more general and Jailing re- 
 pute than " that compiled by our king Richard 
 the firft at the ifle of Oleron. Laftly, the cuf- 
 toms of the Britim admiralty, and domeftic 
 acts of parliament, relating to prizes or the 
 like, have a proper, juft, and eminent control 
 
 * Strahan pref. to Domat. XII. n Elem. jur. 64. 
 
 x in
 
 I, E c T . 5 . the general laws of the land. 139 
 
 in caufes where fubjefts of this country only 
 are intereft^d in the judicial event; but 
 where foreigners are to be affected by the de- 
 termination of the fuit, thefe principles muft, 
 at leaft, be admitted with more caution and 
 referve ". 
 
 The p admiralty, though not a court of re* 
 cord in its civil capacity, may fine or impri- 
 fon for a contempt committed in its view, as 
 by aflaulting one that was executing its pro- 
 cefs ; which is a very flight and very proper 
 deviation from the general rule to the con- 
 trary, 
 
 For this court has a criminal and a civil 
 jurifdiction. 
 
 i . Offences committed on the fea were an- 
 tiently tried before the lord high admiral, ac- 
 cording to the courfe of the Roman civil law. 
 But by the flatutes 27 H. VIII. c. 4. and 28 
 H. VIII. c. 15. all q treafons, felonies, piracies, 
 
 Elem. jur. left. IV. & V. ' I Vent. i. 
 
 q Treafon committed beyond fea is indiftable in the king's 
 bench, or before fpecial commiffioners in any county afligned. 
 St. 35 H. VIII. c. 2. The place and manner of trial in fuch 
 cafe was very doubtful before the paffing of that law. 2 Hawk. 
 
 222. 
 
 and
 
 140 Of courts, not proceeding by L E c T . 5 r 
 
 and other crimes, committed on the fea, or 
 where the admiral has jurifdiction, mall be 
 tried in the realm, as if done on land ; and 
 commiffions under the great fcal mall be di- 
 rected to the admiral, or his lieutenant, and 
 " r three or four other fubftantial perfons" to be 
 appointed by the lord chancellor, to hear and 
 determine fuch offences, after the courfe of 
 the laws of this land. The court fo confti-r 
 tuted is ufually called the admiralty feffions, 
 at which, by virtue of thefe ftatutes, indict- 
 ments are found, trials are had by jury, and 
 procefs iffues as from other criminal courts, 
 by the general laws, for offences committed 
 within the body of a county. But the fta- 
 futes referred to affect only the manner of the 
 trial, fo far as refpects piracy. The s nature 
 of the offence is not changed. Whether a 
 charge amounts to piracy or not, muft ftill 
 depend on the law of nations, except where, 
 jn the cafe of Britim fubjects, exprefs acts * 
 of parliament have declared, that the crimes 
 therein fpecified mall be adjudged piracy, or 
 
 r Thefe are this words cf the flatutes ; in fa<ft they have al- 
 ways or rnoftly been judges of the fuperior courts of Weftmin- 
 fter-hall. 
 
 I Inft. 391. 3 Inft. 112. Mo.j56. 2 Hal. 18. 370. 
 
 1 1 Hawk. c. 37. with the notes and additions. 
 
 {hall
 
 I v c T . 5 . the general laws of the land. 1 4 1 
 
 ihall be liable to the fame mode of trial and 
 degree of punimment. The defcription of 
 piracy by the law of nations I mall endeavour 
 to difplay in my lecture on captures at fea. 
 
 fc. The admiralty hath a civil jurifdiftion, 
 which is alfo u twofold, and holden before 
 diftincl: tribunals, the one being the ordinary 
 court for deciding in controverlies relating to 
 contracts made at fea, and called the inftance 
 court, the other called the prize court, deter- 
 mining the right to maritime captures and 
 feizures. But the contract muft be of a" ma- 
 ritime nature; * for if a bond, or leafe, is 
 fealed at fea, it is not cognizable in the ad- 
 miralty. Yet on the other hand, r if a char- 
 ter party of affreightment, which is a marine 
 contract, be made at land, and the breach of 
 covenant happen at fea, the admiralty hath no 
 jurifdidtion. The wages however of mariners 
 are recoverable in the court of admiralty : 
 which is greatly for their eafe and conve- 
 nience ; as they may join there in the fame 
 
 * Doug. 613 n. to 620 n. 
 
 * SirL. Jenk. arg. Ixxvii. Hob. 12. i R. A. 532. 
 
 * Hob. 212. Palmer v. Pope. 4lnft. 135. 139. 142. Mo. 
 450. i Rol. abr. 532. 1 1 ft 16. 2 Rol. 486. 
 
 fuit.
 
 Of courts y not proceeding by LECT. tf* 
 
 fuit. This convenience to them is the foun- 
 dation of the indulgence. Therefore * the 
 matter of thefhip, to whom that r^afon does not 
 extend, is not allowed to commence an action 
 here for his falary. The mariners may fue in 
 this court for their wages, tho the a contract 
 was made at land. But if the agreement for 
 fuch wages were alfo under *fea/ t the matter 1 
 is not cognizable in the admiralty. A writing 
 unfealed has in no refpecl: the fame attention 
 or confideration paid to it by the common 
 law as thofe which have that folemn mark of 
 deliberation and authenticity. In fome c cafes 
 however, where a caufe of action originally 
 arifes at fea, and other matters, depending 
 thereon, happen afterwards on land, the ad- 
 miralty retains its jurifdiction : as where per- 
 haps the wrong complained of may be con- 
 flrued as one continued ad;. 
 
 The other branch of admiral tyjurifdiclion, 
 called the prize court, is perfectly diftin<5t, and 
 holdcn by virtue of a feparate commiiTion to the 
 judge of the admiralty. This is the fole and 
 exclufive judicature for determining in the 
 
 2 2Sh?. 86. Sir L. Jenk. arg. IxxxL i Sal. 33. Carth, 
 518. 
 
 i Vent. 146. 343. b i Sal. 31. 12 Mod. 38. 
 
 c I Vent. 173. 12 Mod. 135. 
 
 firit
 
 1 E c T . g. the general /arts of the land. 143 
 
 firft inftance, whether any maritime capture 
 or feizure is or is not lawful prize. The 
 complaints in early times, and the parliamen- 
 tary regulations, relating to the excefTes of ad- 
 miralty jurifdiclion, were not levelled againfl 
 this but the ordinary court. Yet if either of 
 
 j 
 
 them now ufurp jurifdidlion illegally, the re- 
 medy is the fame by a writ or mandate of pro- 
 hibition; which may be obtained by applica- 
 tion to the fuperior courts of common law, 
 on a competent fuggeftion for that purpofe. 
 When however they acl: within the fphere of 
 their authority, and the fuitors, difTatisfied 
 with the judgment given, wim to carry the 
 caule before a higher tribunal, the jurifdidlion 
 to be appealed to from each refpedively is 
 very different. For from d the ordinary court 
 of admiralty the appeal lies to the delegates 
 authorized under the great feal, as in eccle- 
 iiaftical caufes : but from e the prize court 
 queftions concerning maritime captures are 
 finally determined by the lords commiffioners 
 in prize caufes, all of whom ufually are, and 
 a majority of fuch as give fentence muft be, 
 members of the privy council. 
 
 * St. 8. El. .5. 4 Inft. 335. e Lea. XXXIV. po. 
 
 IV. I
 
 144 Of courts, not proceeding by L-ECT. t* t 
 
 IV. I proceed now to the ecclefiaflical 
 jurifdiftions ; in which the Englifh canon 
 law, as it was explained and reftricted in one * 
 of my elementary difcourfes, is the genuine 
 and ordinary rule of decifion. 
 
 The convocation, or fynodal meeting of 
 the clergy, is fometimes reckoned among ec- 
 clefiaftical courts ; but this feems to exercife 
 a modified legiflative rather than a judicial 
 capacity; and ought, for inffonce, rather to 
 declare, what opinions are heretical, than * 
 to convene and convict a particular heretic. 
 
 , The other ecclefiaflical courts are either 
 archidiaconal, diocefan, metropolitan, or fu- 
 preme courts of appeal. 
 
 i. The court of the archdeacon, who is 
 filled oculus epifcopi, h hath fometimes concur- 
 rent authority with the bifhop, and fometimes 
 a peculiar and exclulive jurifdi&ion. This 
 court is chiefly converfant about the correc- 
 tion of fpiritual offences and abufes. Eccle-* 
 
 * Elem. jar. left. V. s l Hawk. 4. 
 
 h i Lord Raym. 123. 
 
 fiaftical
 
 1 E c T 5 . general laws of tie land. 145 
 
 fiaftical caufes between party and party 
 have very rarely, I believe, been commenced 
 here. An appeal in all cafes lies from hence 
 to (2dly) the court of the bifhop or archbifhop 
 of the diocefe, which is holden ufually before 
 his chancellor, and is called the confiftory 
 court. This court not only punimes fuch 
 offences as are here cognizable by fpiritual 
 cenfures, but entertains all kinds of ecclefiaf- 
 tical fuits. An appeal lies from thefe dioce- 
 fan courts, within the province of York k , to 
 (3dly) the metropolitan jurifdiction of that 
 archbifhop. But in the province of Canter- 
 bury, belides the confiftory, there are five 
 archiepifcopal courts. Firft, in the court of 
 audience are tranfa<5ted matters of form, as 
 the confecration of bimops, and the like. 
 Secondly, the court of faculties grants licen- 
 ces and difpenfations. Neither J of thefe 
 exercifes contentious jurifdidtion. But it' ap- 
 pears m , that the court of audience did enter- 
 tain an appeal in the reign of queen Elizabeth. 
 Thirdly, the court of peculiars has ecclefiaf- 
 
 1 But where the archdeacon has an exclufive jurifdi&ion in 
 the probate of wills and in caufes, that jurifdiclion muft of courfe 
 be reforted to. Swinb. p. vi. u. Lord Raym. 123. 
 
 * 4 Inft. 338. 14 Inft. 337. M Mo. 462. 
 
 L deal
 
 1 46 Of courts, not proceeding by L c i*. e t 
 
 tical j urifdiclion in regard to fuch parifhes 
 and places, as are exempt from the authority 
 of the bifhop of the diocefe, where they are 
 fituated. Fourthly, the prerogative court of 
 the archbifhop of Canterbury hath the right 
 of granting probates of wills, or letters of ad- 
 min iftration n , whenever a deceafed perfon 
 had effects to the value of five pounds, or in 
 London of ten pounds, in fome other dio- 
 cefe, belides that in which he died. Laftly, 
 the court of the arches is inverted with a 
 double capacity, having a jurifdic"liorr v over 
 
 n 4 Inft-335. This matter deferves attention. Debts owing 
 to the teftator or inteftate, are bona notabilia, as well as goods 
 in pofleffion. But the locality is the queflion. It feems, fimple 
 contracts have relation to the diocefe, where the debtor refides ; 
 bonds or other fpecialties, to the place of executing them ; and 
 judgment debts to the court. (Went.. off. ex. 45, 46. 4 Burn 
 cccl. law, 156 &c. I R.A. 909. Vin. abr. t. executors H* Carth. 
 148,9.)' As to the confequence of an improper probate, it is 
 agreed on all hands, that a probate before the metropolitan, 
 .where he had no right to grant it', is voidable only, and not 
 merely void, till reverfed. But Wentworth adds, (p. 47.) "in 
 cafe one have bona notabilia in divers diocefes, or a peculiar and 
 a diocefe, and yet the will is proved before the particular bifhop, 
 within whofe diocefe part of the goods are, this is merely and 
 utterly void without any reverfal." On the contrary, we find, 
 (iWms. 767,8.) that alt ho, where there are bona notabilia in di- 
 vers diocefes, the grant of adminiftration to an inteftate's ef- 
 fects is merely void ; it is otherwife in the cafe of an execu- 
 tor proving a will. And ftill farther, even the adminiftration, tha 
 illegally granted, appears not to be merely void before reverfal. 
 (i Wms. 43.) 
 4 Inft. 337. 
 
 caufes,
 
 t E c t . 5 . the general laws of the land. 147 
 
 caufes, both originally, and alfo by way of 
 appeal. Its original jurifdidlion is* limited to 
 thirteen of the parifhes in London ; that by 
 way of appeal extends over all inferior eo 
 clefiaftical tribunals within the province. 
 
 
 
 But the great or fupreme court of appeal 
 is (4thly) that holden before the delegates 
 commifTioned by his majefty for that purpofe, 
 by virtue of his antient prerogative and fupre- 
 macy over the church. This inftance indeed 
 of his- royal power is more fully declared and 
 modified by the ft. 25 H. VIII. c. 19. The 
 delegates now ufually confift of an equal 
 number of judges from tha common law 
 courts at Weftminfter, and of eminent profi- 
 cients in the civil and canon laws. On a 
 late ' important occafion certain members 
 of the houfe of peers were named and 
 a&ed in this high judicial commiflion. The 
 court of delegates feems to have no original 
 jurifdiction, but is only to review, and to re- 
 verfe or affirm, the fentence appealed from. 
 Whether they have power to excommunicate, 
 (tho, I believe, adopted in more modern prac- 
 
 * In the appeal between Harford and Morris (adj. 1784.) 
 
 L 2 tice)
 
 148 Of courts, not proceeding by x E c T . 3 
 
 tice) hath formerly admitted of a difference 
 of opinion q . But it is faid r , without contra- 
 diction, that they cannot fine or imprifon, ex- 
 cept, I prefume, for a contempt committed in 
 their view. It appears alfo', that they are 
 fubjecT: to prohibitions, like other ecclejiaftical 
 courts. 
 
 A commiffion of delegates * may be granted 
 on a petition in chancery, made by one, who 
 is interefted, tho not an original party in the 
 caufe. 
 
 No " appeal lies to this court from the de- 
 
 , cree of a vifitor of a college. Indeed in fuch 
 
 cafe, no appeal to any court is thought main- 
 
 tainable, as I mall have occafion to mention 
 
 in my lecture on corporations. 
 
 After fentence by thefe delegates', (who 
 frequently ftiled in common fpeech delegates 
 out of chancery) the king may, by his chan- 
 cellor, grant a commiffion of review, with 
 power to reverfe or affirm fuch preceding 
 
 i 2 Bui. 4. cont. 2 Rol. abr. 233. ' 4 Inft. 334. 
 
 Latch. 85, 86. Mo, 463. l I Atk. 298. 
 
 4lnft. 341. 
 
 fentence.
 
 L E c T . 5 . the general laws of the land. 149 
 
 fentence. This w court of commiflion of re- 
 view feems alib liable to prohibitions. In 
 like manner, the court of the high commif- 
 fioners, before that jurifdidion was abolimed, 
 was x frequently prohibited from proceeding 
 to tranfgrefs the bounds of its authority. 
 
 Proceedings in the ecclefiaftical courts are * 
 faid to be " juxta legem divinam et canones 
 fanttce ecckfice" The forms of practice are 
 derived from, and nearly conformable to, 
 thofe of the Roman civil or canon laws. 
 Their criminal jurifdiction is chiefly confined 
 to fuch offences again ft God and religion, as 
 are not liable to coercion in the temporal 
 courts -, tho fometimes both tribunals have a 
 concurrent authority. Thus heretical opini- 
 ons are for the moft part cognizable before 
 the fpiritual judge; z yet fome impieties of 
 this kind are punifhable by a particular adt of 
 parliament ; and * profane blafphemy is indidt- 
 able at common law. Thus alfo the ft. 4 J. i . 
 e. 5, enadted to reprefs the vice of drunken-. 
 
 w 4 Inft. 341. * Lit. 152. Mo. 460. 
 
 r 4 Inft. 322. ' J St. 9 & IQ. W. Ill, c. 32. 
 
 * Vent. 293, 
 
 L 3 nefs 4
 
 * 5 f courfs > not proceeding by L E c T . 5 , 
 
 nefs, exprefsly provides, that it fhall not be 
 conftrued to reflrain the ecclefiaftical jurif- 
 diclion. So likewife b to lay violent hands on 
 a clergyman, is a matter of fpiritual coercion -, 
 tho this outrage is both actionable and indict- 
 able at common law. Marriage within the 
 prohibited degrees, inceft, adultery, and in- 
 continence, are, as punimable offences, more 
 ftrictly under ecclefiaftical cognizance $ yet 
 a e fuit for adultery in the fpiritual court, and 
 an action at common law to recover damages 
 for the injury to the hufband, may proceed at 
 the fame time ; and brothels d are indictable at 
 common law j as are alfo open e adls of inde- 
 cency, grofsly fcandalous, and tending to de- 
 bauch the manners of the people. 
 
 A f fuit was commenced in the fpiritual court 
 for inceft in marrying a firft wife's fifter. The 
 party fued moved for a prohibition, fuggeft- 
 ing, that by his fecond wife, who was dead, 
 he had a fon, to whom an inheritance was 
 defcended as heir to his deceafed mother, and 
 yet the ecclefiaftical judge was proceeding to 
 baftardize fuch iflue. The king's bench, by 
 
 b 2 Lift. 622. 6 Mod. 156. e Sal. 552. 
 
 * 3 Inft. 205. i Hawk. 7. I Sid. 168. i Keb. 620. 
 
 * 2 Sal. 548, 
 
 prohibition,
 
 L E c T . 5 . the general la wsoftbe land. 151 
 
 prohibition, retrained the ecclefiaftical jurif- 
 didion from annulling the marriage, and baf- 
 tardifing the ifTue after the death of the de- 
 ceafed parent, but at the fame time allowed 
 the profecution to go on for punching the 
 inceft. It appears by fome g books, that fa- 
 crilege is cognizable in, the Spiritual, as well 
 as the temporal, courts : yet I take the law 
 to be otherwife : and clearly in every other 
 inftance felony is not, any more than treafon, 
 within ecclefiaftical jurifdictipn. I fm4 alfo h a 
 prohibition " nifi" ' granted to the cpnfiftory 
 court, merely on a fuggeftion, that the fuit 
 there was for publishing a libel, which was 
 an offence indictable at common law. It 
 may be here obierved, that fuits for defama- 
 tion are frequently maintainable in the eccle- 
 fiaftical courts, whsre the fame fcandal would 
 not bear an action by the general laws. The 
 general reafon of which difference is, that the 
 crime itfelf imputed by the defamation is a 
 fubject of profecution only before the fpiritual 
 judge. 
 
 * I Sid. 281. 2 Keb. 23. The cafe there was after an a^ 
 
 of general pardon ; which muft, I fuppofe, haye barred the pro- 
 fecution, in tbe fpiritual, as well as temporal, courts. Poft 152, 
 
 h Comb. 71. ' 
 
 * " Unlefs caufe fhould be Ihewn to the contrary," a preli- 
 jninary form, except in motions of courfe. 
 
 L 4 Tho
 
 152 Of courts, not proceeding by L E c T . $ , 
 
 The fentences of the ecclefiaftical courts, 
 in criminal profecutions, confift of fpiritual 
 cenfures, excommunication, corporal penance, 
 and, in the cafe of clergymen, deprivation, 
 and even j degradation ; but indeed, as to the 
 laft mentioned judgment, the right of any 
 human authority to annul holy orders, once 
 conferred, is very reafonably difputed by our 
 Anglican theologifts, tho the frequent prac- 
 tice of the Romifh church. All the pro- 
 ceedings of thefe tribunals in criminal caufes 
 are profeffedly k pro falute anima : neverthe- 
 lefs, the king's pardon l is a bar to all fuch 
 profecutions. 
 
 The encroachments of the ecclefiaftical 
 courts, in ufurping to themfelves jurifdidlion 
 foreign to their inflitution, was frequent 
 matter of complaint by the whole commons 
 of the realm, and other bodies of men, and 
 was fometimes redrefled, in very early m par- 
 liaments. 
 
 As to the civil power of thefe tribunals, fir 
 Edward Coke " aflerts, they have jurifdiction 
 
 J Burn eccl. law, t. degradation. k 2 Inft. 492. 
 
 1 Dav. 73. a. 2 Rol. abr. 218. "2 Inft. 
 
 492. 600. 
 
 Of
 
 JL E c T . 5 . the general laws of the land. 153 
 
 of no goods or chattels, but fuch as are d( 
 teftamento et matrimonio. In queftions relat- 
 ing to freehold, it is very clear, they have no 
 direct cognizance. Their teftamentary caufes 
 do not affect any devife of lands, to be enjoyed 
 for life, or as an inheritance : the validity of 
 fuch difpofitions by will muft be determined 
 at common law. But terms for years being 
 confidered as perfonal property, the right 
 thereto, as well as to goods and chattels in 
 general, may be affected by the decifions of the 
 pcclefiaftical courts, namely, by their granting 
 or withholding the probate of a will, or let- 
 ters of administration. And it feems they 
 may, in their matrimonial caufes alfo, indi- 
 rectly, defeat the title even to an eflate of 
 freehold, by determining the marriage to be 
 void. Suits may likewife be commenced 
 here, notwithftanding the general aflertion 
 before quoted, for nonpayment of ecclefiaf- 
 tical dues, fpoliation, and dilapidations. 
 
 This is the term given to a fuit between two re&ors, for 
 icftance, claiming, under the fame patron, the profits of the 
 benefice. Burn eccl. law, t. fpoliation. But it feems this fuit is 
 not maintainable in the fpiritual court, where the parties clnim 
 under adverfe patrons, whofe right of patronage might come in 
 difpute, and at the fame time the tithes in qucftion amount in 
 value to a fourth part of the living. F. N. B. tt fpoliation. 
 The two cafes in Godb. 45. are perhaps not reconcileab'e with 
 each other j but do not clafli with thefe diiiioclions.
 
 1 54 V courts > not proceeding by L E c T . 5, 
 
 But in regard to tithes, where the mere p 
 right to them comes in queftion, the fpiritual 
 jurifdi&ion is at an end. For thefe courts 
 can only meddle with the wrongful withhold- 
 ing of them, where they are * acknowledged 
 to be due to fome perfon or other, 
 
 A principal rule for granting prohibitions 
 arifes, where the general and ecclefiaftical laws 
 direttly differ, in which cafes the former mail 
 be preferred. The fuperior temporal courts 
 therefore r reftrain the ecclefiaftical judge from 
 rejecting and fetting at nought the teftimony 
 of one credible witnefs, except ' in teftamen- 
 tary caufes, which are peculiarly within the 
 fpiritual jurifdiction. Becaufe, though the 
 civilians require two witneffes, the teftimony 
 of one is in general competent by the laws of 
 
 P This do&rine is maintained, and, I believe, juftly, 3 Black, 
 comm. 88; but the authorities cited (viz. 2 R. A. 308, &c. Br, 
 t. jurifd. 85. 2 Inft. 364. 309, 310) are hardly reconcileable 
 or intelligible. It mould feem, from fir Edward Coke, that the 
 fpiritual court had no fuch w/^//jurifdiftion; but he does not 
 fpeak diftin&ly of the innovations made by ftatute. (Sty. 169, 
 Seld. hift. tithes, c. xiv. 3.) 
 
 9 Godb. 45. In the two cafes here reported they were al- 
 lowed to be due to fome perfon or other : the right of tithes, pro- 
 perly fpeaking, was not in difpute. 
 
 r Carth. 142. 
 
 i Wms. 10 &c. But payment of a legacy may be proved 
 there by one witnefs. 3 Mod. 283. 
 
 England.
 
 I E C T . 5 . the general laws of the land. 155 
 
 England. Queftions alfo refpefting freehold, 
 as before intimated, the trial of difputed l cuf- 
 toms and prefcriptions, and the u conftruction 
 of a&s of parliament, may give occafion to 
 jfTuing prohibitions; as thefe things are, for 
 the moil part, appropriated to courts of com- 
 mon law. But where the general laws are 
 lilent, providing no fpecific remedy and re- 
 drefs, and the matter is not properly triable 
 by them, but adapted to ecclefiaftical cogni- 
 zance, thefe courts ought not to be prohi- 
 bited. Accordingly, when the fuperior court 
 thinks there is no fufficient ground for re- 
 draining the ecclefiaftical judge, " a writ of 
 confutation" as it is called, is awarded, autho- 
 rizing him to proceed. 
 
 Having taken fome notice of appeals both 
 in the admiralty and ecclefiaftical jurifdictions, 
 I mufl obferve, that there is a w variance in this 
 refpect between the civil and canon laws. The 
 latter allows appeals from decretal orders made 
 in the intermediate flages of a litigation : but 
 
 1 Carth. 33. Except perhaps in fome cafes where both 
 
 parties are fpiritual perfons. 
 
 I Inft. 96. b. i Atk. 295 &c. 
 
 the
 
 1 5 ^ Of court s y not proceeding by L E c T . 5 . 
 
 the former confines the power of reforting to 
 higher tribunals to final decrees, and to what 
 is called " gravamen irreparabile" where by 
 acquiefcing with the fentence, as by making 
 a difcovery, to which a party thinks himfelf 
 not bound, the caufe would not only be de- 
 cided, but irretrievable detriment incurred. 
 The civil law proceeds with better reafon : 
 for as the admiffibility of evidence, and other 
 interlocutory matters, may be reviewed and 
 difcufled, when the appeal is heard, fuits are 
 expedited, without danger of final injuftice, 
 
 In thefe difquifitions concerning the tribu- 
 nals, to which judicial magiflracy is fo vari- 
 ouily diftributed within this realm, I mail take 
 no fpecial notice of the courts of the duchy 
 of Lancafter ; becaufe, tho extenfive in their 
 practice, they are limited and circumfcribed 
 to local boundaries, and are regulated by the 
 fame principles both of law and equity, as 
 govern our more general and ordinary jurif- 
 dictions. 
 
 Laftly therefore I mail briefly fpeak of the 
 privy council, the lord prefident whereof* is 
 
 ' 4 InH. 5S . 
 
 appointed
 
 I E G T . 5 . the general laws of the land. 157 
 
 appointed by patent, and the other members 
 become fuch, by the cuftom of the realm, on 
 being fummoned and taking the regular oath, 
 during the king's reign, who makes choice of 
 them ; and they had all a voice in the court of 
 flar-chamber, while that tribunal was in be- 
 ing r . The privy council may inquire of of- 
 fences againfWhe government, and commit* 
 thofe fufpedtea of delinquency. But its 
 ftrictly judicial power, fo far as affects Eng- 
 land, is confined to cafes of idiocy and lunacy, 
 as a court of appeal from the decrees in chan- 
 cery: for in fuch inftances the houfe of 
 lords have difclaimed all jurifdi6lion a . In, 
 fuits and litigations, arifing within his majef- 
 ty's colonies and plantations, or coming from 
 the courts of admiralty there, the privy coun- 
 cil, or the lords commifli oners in prize caufes 
 (as the cafe may be) have (by way of appeal 
 allb) a very extenfive and important judicial 
 authority. 
 
 From this review of the distribution of 
 
 7 4 Inft. 54. 
 
 * Antiently all privy counfellors, fingly, exercifed a power of 
 commitment; but it feems illegal: it is clear, that now it can 
 only be in council. (2 Wils. 289, 290.) 
 
 * 3 Wms. 108. 
 
 judicial
 
 *5^ Of courts, &c* LECT. $< 
 
 judicial magiftracy amongft us, and what re- 
 mains to be faid of courts of equity, it mufl 
 feem, that never in any other country was 
 there ere&ed fo great a variety of tribunals, 
 adapted to diftincl: fubje<ft matters of litiga- 
 tion. 
 
 LEG-
 
 IS9.1 
 
 LECTURE VL 
 
 Of the lord chancellor, and the origin of the 
 court of chancery. 
 
 IT is my prefent purpofe to treat, hiflori- 
 cally in fome meafure, of that great magi- 
 ftrate who prciides in the court of chancery, 
 and to elucidate the rife and advancement of 
 his equitable jurisdiction. 
 
 This term " cancelhmus" had originally 
 no connection with courts of juftice, or the 
 cancelling of inftruments : it firft occurs in 
 Vopifcus : but one of his a commentators 
 thinks it was of much earlier ufe, tho not in 
 the fame fenfe. The denomination certainly 
 at the firft was of humble import b , fignifying 
 thofe ufhers, who had the care of the " can- 
 cdli" or latticed doors, leading to the pre- 
 fence chamber of the emperors and other 
 
 Salmaf. ad Vopifc. ap. hift. aug. fcript. vol. ii. 800. n. 
 |ed. 1671.) 
 
 fc In this Cafaub. & Salmaf. agree. Ibid. 796 &c. n. 
 
 x great
 
 i 6 o Of the lord chancellor v and the L E c T . 6 * 
 
 great men, and were to admit or repel all 
 comers, and to prevent riot or diforder. 
 With fome reafon therefore this c contempo- 
 rary hiftorian writes of Carinus, who became 
 emperor towards the clofe of the third cen- 
 tury, " d prafeftum urbi unum ex cancellarm 
 fuis fecit, quo fadius nee excogitari aliquando 
 poterat nee did" For e the prafeftus urbi was 
 firft in rank among the civil officers of the 
 flate. From their f original fituation the Ro- 
 man cancellarii became fecretaries or fcribes 
 to the emperors and principal judges : then 
 they feem to have been a fort of provincial 
 pretors, and one of them being diftinguimed 
 above the reft, fuddenly reached the fummit 
 of civil grandeur and preheminence. The 
 ordinary part of his function in the later ages 
 feems to have been to receive petitions and 
 fupplications addrefTed to the throne, and to 
 frame and iffue the imperial writs and man- 
 dates. 
 
 The name and office of chancellor was co- 
 Died from the Caefarean palace into mofl of 
 
 c Cafaub. ibid. 414, n, d Vopifc. Carinus in princ. 
 
 Cod. 1. 1. 1. 28. le. 3. Nov. LXII. 2. 
 
 1 Vopifc. ibid. n. 797. 804. Spelm. gl. v. cancellarius. 
 Cod. I. 1. 1. 51.!. 3. 
 
 the
 
 1 E c T . 6 . origin of the court of chancery, . 161 
 
 tiie ftates of Europe, and became character-- 
 ifed by .many g fplendid additions; fuch were 
 thofe of nomophylaxy afylum juris, ara boni G? 
 #qui 9 vicarius regis, prorex, interrex" The 
 chancellor of France is defcribed by Domat \ 
 as the firft of all the magiftrates, the head of 
 juilice, prefiding in the king's council, and in 
 all the fovereign courts where he fits, giving 
 the form and putting the feal to all edicts, de- 
 clarations, and ordinances, ilTuing patents and 
 CommilTions, and exerciling all o.ther func- 
 tions of the firft and moft important of of- 
 fices. 
 
 The name and office are of great antiquity 
 in England. Sir Edward Coke ' pronounces, 
 certain it is, that the Britifli and Saxon kings 
 had their chancellors and court of chancery. 
 The author of the mirror fc intimates, that 
 one Hubert had a pardon from king Alfred, 
 which was inrolled in chancery: others af- 
 firm that J Unwona was .chancellor to Offa, 
 
 * Spelm. gl. 104, 5. 
 
 h Pub. law. b. ii. t. i. 2. par. 25. 
 
 * 4 Inft. 78.- This however nearly feems as fabulous at 
 
 making Minos chancellor to Jupiter, &c. Spelm. gl. v. can- 
 ellatius. 
 
 * C. v. I. ' Dugd. orig. jurid. c. 16. 
 
 M /who
 
 1 6 2 Of the lord chancellor, and the L E T . 6 . 
 
 who in the year 758 began his reign over the 
 Mercians. But Selden, in his little treatife 
 on this fubje<ft, declares, that the oldeft men- 
 tion in good authority of the "'name of chan- 
 cellor of this kingdom is in Edward the 
 elder's time, about the year 920. That mo- 
 narch conftituted Turketill (who was allied 
 to the royal family) his chancellor with 
 very tranfcendent powers; " ut qutecunque 
 negotia, temporalia vel ' fpiritualia, regis judicium 
 cxpettabant, illius conjllio G? decreto (nam tantce 
 Jidei & tarn profundi ingemi tenebatur) omnia 
 tracJarentur, & tract ata irrefragabilemfententi- 
 amfortirentur" Turketill was alfo embaffador 
 to feveral princes, on occafion of their inter- 
 marrying with the fitters of our king, and a 
 diftinguifhed general in a great battle, of which 
 a particular account is tranfmittcd. He held 
 the chancellorfhip under the three fucceeding 
 princes, Athelftan, Edmund, and Edred; and 
 at length retired from the world as abbot of 
 Croyland ; in which laft preferment he was 
 fucceeded, after an interval of above a cen- 
 tury, by the author who tranfmits this ac- 
 
 m Tho he confiders it of the fame fenfe as " referendar'sus" 
 ufed in a charter of Etheibert* the fail chriftiaa king of the 
 Saxon race in this iilap.d. A> C 605* 
 
 count,
 
 L E c T . 6 . origin of the court of chancery. 163 
 
 count, and fpeaks of his-^predeceflbr in terms 
 of the higheft veneration n . 
 
 King Ethelred divided the chancellorship 
 between the abbeys of Ely, St. Augufline in 
 Canterbury, and Glaftonbury, to be exercifed 
 by turn four months yearly. However 
 ft range a difpenfation this may now feem, 
 when erudition is widely diffufed, and when 
 competitors for this high object of ambition 
 teftify their eminent talents through many 
 contentious fcenes of rivalmip, yet perhaps in 
 that unlettered age it was one of the mod 
 probable means of procuring a fit and learned 
 counfellor and arTefTorat the king's right hand. 
 It engaged the interefts, and incited the emu- 
 lation of thofe religious conclaves, to whom 
 this fmgular concemon was extended. They 
 would therefore feek alternately to depute a 
 candidate, who was moft meritorious, and had 
 collecled all the knowledge which the times 
 afforded. Accordingly fir Edward Coke 
 
 This is the account given by Ingulphus, an Engliftiman, 
 vdio, having brought feme fupplies to William the conqueror, 
 to affift him in his expedition, was foon afterwards, by that 
 prince, made abbot of Croyland. Ingulph. hift. ap. rerum Angl. 
 fcrip. 3033. 38. 42. 48. 51, 52. 73 &c. 
 
 Seld. off. chanc. 
 
 M 2 tells
 
 1 64 Of the lord chancellor, and the LE c T. 6. 
 
 tells us p , " that this king Ethelred had a 
 worthy name, and a worthy man to his chan- 
 
 .cellor." 
 
 p 
 
 This high magiflrate has in every reigfi 
 maintained his fway, unlefs we fuppofe him, 
 at intervals, rather eclipfed by the great q jqf- 
 ticier. He has now however, for many ages, 
 been efleemed r fuperior in dignity to all the 
 other judges of the kingdom. A * writer tin- 
 der Henry the fecond declares, " Cancellarii 
 dignitas eft, ut fecundus a rege in regno ha- 
 beatur -, ut omnibus regis adjit conjiUis -, etiam 
 non vocatus, accedat." A s contemporary au- 
 thor affirms, " Cancellarius, Jicut in curia, Jic 
 ad fcaccarium magnus eft : adeo ut Jine ipfius 
 confenfu <uel confitio nihil magnum fiat, *vel fieri 
 debeat" And * another about the time of 
 Edward the firfl admonimes, w Officium can- 
 cellaricz viro provide et difcreto, ut epifcopo 'vel 
 ckrico magno dignitatis, debet committi, fimul 
 
 t 4 Inft. 78. 
 
 i Who was an officer of very great authority, not merely of 
 the judicial kind, but who, in the king's abfence beyond fea, 
 governed the realm as vice-roy : as in modern times fuch vice- 
 roys are ftiled lords juilices. (2 Hawk. 6.) " Jujlitiarii, that is, 
 Tice-roy." (3 Seld. 1468. Wilk. cd.) 
 
 ' I Ch. rep. append. 7. 
 
 All eked by eld. off. chanc. 
 
 ?. cum
 
 L E c T . 6 . origin of the court of chancery. 165 
 
 cum euro, majoris Jigilli regni % cujus fubjlituti 
 funt cancellarii omnes in Anglid, Hibernid, 
 Wallid, et Scottd, omnefque Jigilli regii cujlodes 
 prater cujlodem Jigilli privati." As to his 
 keeping the feal, above fpoken of, to inquire 
 when and whente that mode of authenticat- 
 ing inftruments was adopted here, feem a 
 dark and unprofitable refearch, and one of 
 thofe controverfies, which terminate in mere 
 curiofity of fpeculation. 
 
 Something was added to the fplendor of 
 his dignity by the famous flatute l of treafons, 
 in which he is firft named of thofe great ma- 
 giftrates, to flay whom, being in their places, 
 doing their offices, is declared to amount to 
 that higheft crime againft the ftate. The 
 flatute " of precedence gives him rank above 
 all dukes, except thofe of the royal family. 
 
 He cannot appoint an effective deputy w . 
 If the mafler x of the roils, or one of thofe 
 
 of 
 
 ' 25 E. III. ft. 5. c. 2. "31 H. VIII. c. *o. 
 
 4 Inft. 88. 
 
 * This office, now of high judicial importance, is of great 
 antiquity. It was conferred on Adam de Ofgodby fo early as 
 
 M tha
 
 166 Of the lord chancellor, and the LECT.6. 
 
 of the twelve judges, who have been fpe- 
 cially commiffioned at the time of a new 
 chancellor's creation, fits for him, or if, 
 on difficult occafions, he calls in chofen af- 
 fiffents, the order derives its virtual autho- 
 rity from his lignature only ; and the decree, 
 as to its efficacy, is folely his own. It is faid, 
 
 the 23d year of E. I. t>y the then chancellor; and the next grant 
 of it, tranfmitted to us, is exprefled to be with the chancellor's 
 aflent. (Chron. feries at the end of Dugd. orig. jurid. 33. 37.) 
 He is the chief of the twelve matters in chancery, but far diftin- 
 guifhed above the reft ; and is mentioned in the ftatute 12 R. II. 
 c. 2. after certain great officers of ftate, and immediately before 
 the juftices of the one bench and of the other. He hears and 
 decrees in fuch caufes, depending in chancery, as are ripe for 
 determination, and have been fet down to be adjudged in his 
 court of the rolls, which is indeed but a branch of the former. 
 If either party is diflatisfied with his fentence, he may petition 
 for a re-hearing before the lord chancellor, which is called an 
 appeal from the rolls. The mafter of the rolls frequently fits, 
 fometimes as a fubftitute, fometimes as an affiltanr, to the fu- 
 preme difpenfer of juftice in that court. But the chancellor's 
 fignature alone, whoever fits for or with him, is that which 
 gives effectual authoiity and efficacy to all the determinations. 
 To prevent difputes relating to this fubjeft, it is enacted by the 
 ft. 3 G. II. c. 30, " that all orders and decrees made by the 
 mafter of the rolls, except fuch as, according to the courfe of 
 the court of chancery, ought only to be made by the lord chan- 
 cellor, lord keeper, or lords commiflioners of the great feal, mall 
 be deemed and taken to be valid orders and decrees of the faid 
 court of chancery, fubje& neverthelefs to be difcharged, re- 
 rcH^d, or altered by the lord chancellor, lord keeper, or lord* 
 commifilcr-i rs of the great feal, and fo as no fuch orders or de- 
 crees be iarolled, till the fame are figned by the lord chancellor, 
 lord keeper, or lords comrsiffioners of the great feal. 
 
 he
 
 L E c T . 6. origin of tie court of chancery. 1 67 
 
 he r might have delegated his powers, when 
 the office was granted for life. But in effect 
 it cannot now be fo beflowed. The chan- 
 cellor, having fo near a relation to his royal 
 matter, ought in reafon to be removable at 
 the pleafure of the king. Therefore, tho the 
 firft earl of Clarendon had a patent for life, 
 the taking away of the feal from him 
 amounted z to a determination of his office. 
 And * when the lords of parliament, in the 
 forty-fourth year of Henry the third, ap- 
 pointed a chancellor of their own election, 
 difplacing Walter de Merton, confUtuted by 
 the crown, the latter was foon reflored to his 
 office, and the prerogative recovered its juft 
 rights. 
 
 Where mention is made of the chancellor 
 and his lieutenant, the latter expreffion is to 
 be underftood of the perfon, who had the ac- 
 tual cuflody of the feal. This matter intro- 
 duced fome perplexity in old hiftories and 
 records. But all controverfies are now taken 
 away, and there cannot be a b lord chancellor 
 and lord keeper at the fame time : for by the 
 
 * See Mad. hift. exch. c. ii. 9. 
 
 * i Sid. 338. 4 Inft. 87. * Spelm. gl. no, 
 
 * 4 Inft. 85. 
 
 M 4 ftatute
 
 i 6 8 Of the lord chancellor, and the L fe c T . 6. 
 
 ftatute 5 El. c. 18. their office is declared to 
 be the fame, as to place, authority, jurifdic- 
 tion, and emoluments. All thefe rights, ex- 
 cept preheminence of rank, are, by a later fta- 
 tute c , extended to the lords commiffioners 
 of the great feal ; and * one commiffioner is 
 impowered to hear motions, but there muft 
 be two to make decrees* 
 
 The lord chancellor is now created, not by 
 patent, but by delivery of the feal to him in 
 council, when he takes the following e oath : 
 " That he fhall well and truly ferve the 
 king and his people in the office of chancel- 
 lor - y that he mall do right to all people, poor 
 and rich, after the laws and ufages of the 
 realm j that he mall truly counfel the king, 
 2nd his counfel lame * and keep ; that he fhall 
 rtot know nor fuffer the hurt or difheriting 
 of the king, or that the rights of the crown 
 be decre-afed by any means, fo far as he may 
 let it ; and if he may not let it, he fhall make 
 it clearly and exprefsly to be known to the 
 king, with his true advice and counfel - 3 and 
 that he fhall do and purchafe the king's pro-% 
 
 i W. & M. feff. i. c. 21. 2. > Ibid. 3. 
 
 4 Inft. 88. f That is, hide or conceal. Ibid. 
 
 fit
 
 L E c T . 6. Origin of the court of chancery. 169 
 
 fit in all he reafonably may." This oath 
 which is e at leaft as antient as the tenth year 
 of Richard the fecond, in very general terms 
 comprehends his function. 
 
 His power of cancelling the letters patent 
 of his fovereign, is juftly efteemed " the tran- 
 fcendent branch of his jurifdiftion. That he 
 is by prefcription prolocutor of the houfe of 
 lords, is likewife an auguft part of his charac- 
 ter : and it * was in early ages given in charge 
 to him, to expound to the lords and commons 
 the caufes, why they were convoked in par- 
 liament y which was frequently done in a 
 fpeech of confiderable length. The vilitato- 
 rial authority over eleemofynary corporations 
 founded by the crown,, the right of prefent- 
 ing to certain ecclefiaftical benefices, and the 
 ftile of keeper of the king's confcience, might 
 all poffibly be derived from his having an- 
 
 * 4 Inft. 88. It is very fimilar to the oath ordained to be 
 
 taken by the clerks of the chancery. St. 18. E. III. ft. 5. 
 
 h 4 Inft. 88. 
 
 1 Prynne's ed. Cot. ab. rec. Parl. hift. paflim. Thit 
 
 was fometimes done by the chief juftice : the occafions of which 
 deviation from the more general practice were, according to an 
 attentively marked ditfinftion, when a bifhop was chancellor, 
 and the caufe of fummons related either to the punifhment of 
 malefactors, or the ufurpations of the pope. Elf. of parl. 
 .6. 2. 
 
 tiently 
 
 t
 
 1 70 Of the lord chancellor, and the L E c T . 6 . 
 
 tiently the fuperintendence of the royal cha- 
 pel. He was reputed the firft civil ma- 
 giftrate, the principal counfellor of ftate, the 
 director or advifer of writs, charters, and 
 public inftruments, and a controlling officer 
 in the revenue department, before he fingly 
 difcharged, in any great extent, a merely ju- 
 dicial capacity. But he has for many ages 
 prefided in two tribunals ; the one a court of 
 law and of record, of unfrequent practice, and 
 narrow jurifdidtion ; the other his court of 
 equity^ of which I lhall now endeavour to 
 mark the origin, and gradual augmentation. 
 
 The king, by his numerous judges, is the 
 general diftributer of juftice, tho he k can no 
 longer perfonally give fentence, as he was 
 accuftomed by our priftine conftitution. 
 
 In the Saxon times the earl and the bifliop 
 combined their authority in the county court; 
 and * it is reafonably conjec~hired, that the 
 prelate, as particularly converfant in the di- 
 vine code, chiefly interfered in fuch caufes as 
 required fonxe mitigation of pofitive law. 
 
 k Sir Edward Coke, 1 2 rep. 64. recits a remarkable dia- 
 logue to this effeft, between king James the firft and himfelf. 
 1 i Ch. rep. app. 5. 
 
 Thus
 
 LECT. 6. origin of the court of chancery. 1,71 
 
 Thus was equity then adminiftered in thefe 
 domeftic tribunals. But we may fuppofe 
 this difcretionary power of judicature was 
 fparingly exerted, and that a crowd of fuitors 
 flocked to the court of appeal, which was 
 holden in the royal palace, and which alfo 
 equitably alleviated the rigor of pofitive in- 
 ftitutions. To diminifh this litigious con- 
 courfe, the following law of king Edgar 
 feems provided m : " nemo In lite regem ap- 
 pellato, ni.fi quidem domi jufiitiam confequi aut 
 impetrare non poterit : fin fummo jure domi ur- 
 geatur, ad regem, ut is onus ex aliqua parte al- 
 le r oet t provocato : atque Ji culp<z pecuniar Ice ir- 
 roganda eft mulfta, ea non unquam capitis af- 
 timationcm fuperato" Here it may be added, 
 that by the laws " of Edward the confefTor, 
 it is declared part of the kingly office, and to 
 be inferted in the coronation oath, *' judicium 
 reclum in regno facer <?, et jtijliliam per conjilium 
 procerum regnifui tenere" 
 
 We come now to the Norman period. If 
 k be true, that the biihop had exercifed an 
 
 * Lamb, archaionom. 63. Wilk. LI. A. S. 77. The for- 
 mer part of the law feems to apply to equity m civil fuits, the 
 conclufton to a due mitigation of the criminal code. 
 
 Wilk. LI. Anglo-Sax. 200. 
 
 equitable
 
 1^2 Of the lord chancellor, and the LECT. 6. 
 
 equitable jurifdidion in the county court, his 
 abience from that tribunal muft have greatly 
 co-operated with the other affignable caufes 
 of its decline. The prelates indeed, by virtue 
 of the fame charter, which excluded them 
 from their former judicature, eftablimed their 
 9 confiflories : but 9 whenever they attempted 
 to erect thefe into general courts of equity, 
 they were occaiionally retrained, and confin- 
 ed to the 'prefent limits of their jurifdi&ion. 
 In the mean while the aula regis was confti- 
 tuted, where the king and great officers of 
 ftate prefided, and adjudged all litigated quef- 
 tions of moment according to pofitive law, 
 or r their own fentiments of natural juftice ; 
 for we may fuppofe, they did not confider 
 themfelves much circumfcribed in their prin- 
 ciples of decifion. By fuch a concurrence of 
 events, all s equitable or difcretionary jurifdic- 
 tion now centered in this royal tribunal, and 
 that in the firft inftance, not by way of ap- 
 peal. But the power of the great juflicier, 
 fo repugnant to the freedom of the Saxon 
 conflitution, becoming odious and dangerous 
 
 * Glib, chanc. i, z. ..^ PI Chanc. rep. append. 5. 
 
 * 3 Black, comm. 52. This {hews, however, that a ge- 
 
 ncral notion of judicial equity was entertained in that age. 
 
 * 3 Black, coxnm. 49. i Chanc. rep. app. 5.
 
 fE CT. 6. origin tftbe court of chancery. 173 
 
 to the prince and people, the like 'divifion of 
 the fuperior courts, which now prevails, began 
 to be projected j tho the diftinclion between 
 them long remained unfettled. 
 
 This brings us to an era, which fhould 
 particularly engage the attention of thofe, who 
 inveftigate the foundation of the equitable jus- 
 rifdi&ion of the chancery. The common 
 pleas was firft u made a diftinct legal court : 
 but we may fuppofe, it did not immediately 
 acquire any high degree of credit and refpeft 
 among a people accuftomed to the aggregate 
 magnificence of the aula regts. To this, as 
 one caufe, we may attribute thofe loads of- 
 petitions * which for near two centuries wene 
 prefented to the lords' houfe of parliament for 
 juridical redrefs. The lords were foon, or 
 from the beginning, weary of fuch extenfive 
 judicature; and referving themfelves, as final 
 judges of appeal, remitted the fuitors to infe- 
 rior tribunals for a previous fentence. Yet 
 
 1 Hal. hift. com. law, 149 &c. 
 
 u The feparadon of the exchequer, for revenue' porpofe 
 Mierely, was probably earlier. See Ma<J. hilt exch. c. iv. I. 
 x Hal. hid. com. law, c, 3. 
 
 the
 
 1 74 Of the lord chancellor t and the L c T . 6* 
 
 the king for fome time retained his judicial 
 capacity and character. Edward y the firft 
 frequently fate in the king's bench on im- 
 portant occafions : and the ordinary ftile of 
 that court ftill fuppofes the prefence of the 
 fovereign. The fame prince, by advice of 
 his chancellor and others of his council, de- 
 termined fuch caufes as required equitable re- 
 lief. He therefore pafTed a l law in the twen- 
 ty-eighth year of his reign, " that the chan- 
 cellor and the juftices of the king's bench 
 Ihould follow him, fo that he might have- 
 at all times near unto him fome fages of the 
 law, which might be able duly to order all 
 fuch matters, as mould come unto the court 
 at all times when need mould require." This 
 ic the reafon contained in the ftatute. 
 
 The fuccefTor of this wife monarch was 
 very unfit to fill the tribunal, which his fa- 
 ther vacated. Yet the fame idea fo far con- 
 tinued t* predominate, that Scrope chief juf- 
 tice in the firft year of Edward the third de- 
 clared, " the chancery and king's bench were 
 
 y Barr. 851, 2. 
 
 * Art. {up. cart, 28 E. I. 5. Lamb. Arcbioa. 71. (ed. 
 1635.) 
 
 but
 
 L E c T . 6 . origin of the court of chancery. 1 7 5 
 
 but one place," meaning, as * Lam bard feema 
 to interpret him, that they were both, in con- 
 templation of law, holden in the prefence of 
 the king. About three years afterwards it 
 was found convenient, that thefe courts, which 
 nfed to follow the king in his peregrinations, 
 mould have, as the common pleas had before, 
 a more flationary refidence. This rendered 
 impracticable the perfonal appearance of the 
 fovereign -, yet the b ilile of the court fuppofed 
 the royal prefence, being fometimes " coram 
 rege in cancellaria," fometimes " coram rege" 
 without addition. 
 
 The fame perfons, who had counfelled the 
 king how to exercife his old constitutional 
 power of mitigating, in particular inftances, 
 the rigor of pofitive law, exercifed it them* 
 felves in his abfence, the chancellor being the 
 chief; and the authority of the reft gradually 
 
 a Archion. 69, 70. (ed. 1635.) This feems a more reafon- 
 able and natural conftru&ion than that which we find 2 Inft. 
 552 : what is faid 4 Inft. 80. correfponds with Lambard. 
 
 6 I Chanc. rep. app. 7. Dyer 315. a. Sir Edw. Coke 
 
 (4 Inft. 80.) infers the fuperiority of the king's bench to the 
 chancery, from the ftile of the former being " coram rege" and 
 that of the latter " coram rege in caucellarid," and additio probat 
 tninaritatem. The fame argument would prove the inferiority of 
 the houfe of lords, y/hich is intided " before the king in his 
 parliament." 
 
 centered
 
 Iy6 Of the lord chancellor, and the LECT. 6. 
 
 Centered in him. For he had been antiently 
 the principal, if not fometimes the fole, ad- 
 vifer. That high equitable j urifdidion, which 
 Was immemorially participated, a leaft, by 
 this great magift rate, devolved upon him exclu- 
 lively by the neceflary refult of political 
 changes and events. 
 
 It is not however clear, when he was firft 
 difincumbered of his afleffors. In the firft 
 year of Edward the third, a e commiffion to 
 afcertain the bounds of Windfor foreft was 
 iflued to him and other lords fitting in the 
 court; of chancery, as it is exprefsly termed on 
 that occafion. Others likewife are joined 
 with him in the writ d or proclamation iiTued 
 in the twenty-fecond year of Edward the 
 third, recognizing or eftabliming his judicial 
 authority. The ft. 36 E. III. ft. i.e. 9. is 
 confidered by Spelman c as referring many 
 things to the fole and exclujive cognizance of 
 the chancellor, and feems f generally under- 
 
 ftood 
 
 SpeUa. gl. ipy. a Eq. ca. .ab. 1 29. n, GI. 107, 
 f Lamb, archion. 73^. It is true he there calls it a newly 
 erefted court. But a little before, fpeaking of the days of E. I. 
 he fays, the king, bejng affifted with the chancellor, himfelf did 
 mitigate the feverity of the law in his own perfon, when it pleafed 
 him to be prefent, ad- qid id ai>&aflc eitkec refer it to ths 
 
 chaaocllor
 
 L E c t . 6 . origin of the court of chancery. 177 
 
 flood as confirming or enlarging his equitable 
 jurifdi&ion. Yet fir Edward Coke, whofe 
 prejudices and animofity againfl this court are 
 recorded in legal hiftory, afTerts 5 , that this 
 law relates only to the ifluing of original 
 writs, which h part of his office was probably 
 long before this time intirely difcharged by 
 deputation. This interpretation plainly ! con- 
 
 chancellor aloncj or to him and fome other of the council : which 
 continued (fays he) to the 20 E. Ill : the power then conveyed 
 he compares to the extraordinary proceedings had before the king 
 himfelf ; and confiders as laying the firft ftone of the chancery 
 court. He adds however foon afterwards," but whenfoever this 
 court of equity took beginning to be a diftinS court, I have made 
 proof (as 1 think) " thai the power thereof was always in exerci/e." 
 As to the ft. 36 . III. he fays, " by that law the chancellor 
 Was not only made fole judge in this newly creeled court, but was 
 enabled alfo to proceed in judgment thereafter by his own dif- 
 Cretion; for otherwife the words " without other fuit" were not 
 beneficial." It is true, he tells us, " he does not remember, 
 that in our reports of common law there is any mention of 
 caufcs before the chancellor for help in equity, but only from 
 the time of king tfenry the fourth:" but this is not faying (as 
 he is quoted 2 Inft. 552) " that he could not find that the chan- 
 cellor held any court of equity " before that time. The con- 
 trary appears by the context to be Lambard's opinion. See alfo 
 the fame conftruflion of the &. of E. III. Dugd. orig. jurid. 
 c. xvi. i Lev. 242. 
 
 6 2 Inft. 553. 4 Inft. 82. 
 
 1> St. Weft. 2. 13 E. I. ft. I. c. 24. 2.- -Concordant cltrici 
 tie cancel/aria in bre-vi fa<iendo &c. 
 
 i There are no traces of any other ojjpctna lre<vium. A 
 fuit maintained in the king's bench by original out of chancery 
 is conftrued as commenced in one and profecuted in the other 
 (ant.i 23 & n.) : therefore in that cafe a fuitor does elfewhere pur- 
 fue to have remedy. 
 
 N travenes
 
 * 7 8 Q/" ^ lord chancellor t and the L E c T . 6. 
 travenes the words of the aft, which are, " that 
 the complainant mall in chancery prefently 
 have relief, without elfewhere purfuing to 
 have remedy." 
 
 As to the k objection, that the moft antient 
 decree in chancery, of which we have any 
 account, is fubfequent to this period, it muft 
 be remembered, that the equity fide, as it is 
 called, is not a court of record ; and there was 
 then probably no particular obligation on the 
 officers of it to preferve any memorial of its , 
 proceedings, the ufe of precedents, in caufes 
 depending on equitable circumftances, being 
 not hitherto fufficiently underflood. 
 
 It feems indeed uncontrovertible, that the 
 chancery ! exercifed an equitable jurifdiclion, 
 tho its practice perhaps was not very flourifhing 
 or frequent, through the reign of Edward the 
 third : which, according to the preceding ac- 
 
 * 2 Inft. 552. 
 
 1 It is not remarkable, that a writer under E. III. treating 
 of the diverfity of legal courts, fticuldnot particularly notice the 
 lord chancellor's court of equity : (2 Inft. 552.) for it is not 
 pretended that the diftindtion between his two courts was then 
 induftrioufly eftablifhed ; that what we now call his equitable 
 jurifdiclion was of frequent refort ; (Dugd. orig. jurid. c. xvi. 
 I Lev. 242.) or that judicial equity was a matter of fyftem and 
 artificial fcience. 
 
 count,
 
 1 E c T . 6. origin of the court of chancery. \ 79 
 
 count, connects, as it were, its lineage, and 
 proves it a continuation of that royal court, 
 holden, under different forms, according to the 
 changes of times and manners, immemorially 
 by our antient kings. 
 
 I pafs by the parliament record, cited by 
 Roll and many others as decifive, becaufe fir 
 William Blackftone m has told us, that the 
 date of it is miftaken. Let us recur to other 
 teilimonies. 
 
 In the fourteenth or fifteenth year of Ed- 
 Ward die third, ferjeant Parning, after having 
 ferved the offices of chief juftice of England 
 and lord treafurer, was appointed chancellor, 
 a man, in fir Edward Coke's n eftimation, of 
 profound and excellent knowledge of the 
 laws. Yet he ufually fate, as the fame au- 
 thor informs us, and heard matters debated 
 and argued himfelf in the court of common 
 pleas, confcious " that he, who knew not the 
 common law, could never judge well in equity." 
 This afiiduity to perfect himfelf for his of- 
 fice^ feems to indicate fome increafing extent 
 
 m 3 Black, coram. 53. ife * 4 Inft. 79. 2 Lift. 552. 
 
 Ibid. 
 
 N*
 
 1 8 o Of the lord chancellor, and the L E C T . 6 . 
 
 of practice, and his defire of eflabliming fyf- 
 tematical grounds of deciiion. In the procefs 
 of the fame reign two other eminent lawyers, 
 fir Robert p Thorpe and fir John Knivet, both 
 of whom had been chief j uftices, were ap- 
 pointed to prefide in chancery. Sir Edward 
 Coke q adds, that in perufing the rolls of par- 
 liament in the times of thefe lord chancellors, 
 we find no complaint at all of any proceeding 
 before them : but that foon after, when a 
 chancellor had been made, who was no pro- 
 filer of the law, we find a grievous com- 
 plaint by the whole body of the realm, and a 
 petition that the moft wife and able men might 
 be appointed chancellors, and the enormities 
 of the chancery redrefled. So that, in the 
 opinion of this learned writer, who is known 
 to have been very anxious to abridge the equi- 
 table jurifdiction of the chancery, and to re- 
 prefent it as a novel ufurpation, mere abufe of 
 power occafioned the remonflrance. 
 
 In the forty -fifth year of this reign, we 
 meet with r a petition of the commons, " that 
 
 * It is a miftake (4 Inft. 79) that Thorpe was appointed 
 chancellor 30 E. Ill; the truth is, (as in 2 Inft. 552) that it 
 was 45 E. III. 
 
 i Ibid. i R. A. 372.
 
 I E c T . 6 . origin of the court of chancery. 1 8 1 
 
 no plea be thereafter pleaded in the chancery, 
 unlefs the king be properly a party, or ' the 
 matters relate to that jurifdifiion, and that all 
 pleas there already depending be fent to the 
 common law: (but, as if this could hardly be 
 expected, the petition adds) and that no per- 
 fon, who fhall fue there or to the council by 
 bill, be for the future delayed of fuitable re* 
 drefs, as they have been to their great griev- 
 ance." This happened immediately before, 
 and perhaps occafioned ' the appointment of 
 thofe learned chancellors, fir Robert Thorpe, 
 and fir John Knivet, who fucceeded him in 
 the following year. And hence it is plain, 
 that, in the reign of Edward the third, the 
 chancellor exercifed an equitable jurifdiction 
 by bill, as well as fate in his ordinary court of 
 record, according to the courfe of law. Nei- 
 ther is it probable, that at this early period 
 the diftinclion between his two courts was 
 clearly afcertained and flriclly attended to. 
 Let us reflect on fome of the fubjecl matters 
 of chancery litigation in thole days. Writs 
 of eftrepement u , in the nature of modern in- 
 junctions, nTued out of this court. Quef- 
 
 " OK que Its plus touckcnt P efface de la cbancerie." 
 ; Pad. hid.. 330. u F. N. B. 141, 2. 
 
 N 3 tions
 
 1 82 Of the lord chancellor, and the LECT. 6, 
 
 tions relative to * dower, to the partition y of 
 eftates, and to tithes z , were frequently 
 hrought before and decided by the chancery. 
 Even if all thefe matters were de terminable in 
 the chancellor's ordinary court of law, they 
 muft naturally have given frequent occ?.iion to 
 adopt (whatever was the form of the fiiit) 
 thofe maxims and principles which prevail in 
 courts of equity, efpecially when we confide? 
 the derivative fource of his judicial power. 
 
 In that and the fucceeding age, the expe- 
 dience of fuch a court of equity became daily 
 more vifible. The a proprietors of lands, to 
 fecure them againft forfeitures, to render them 
 devifable, or to evade the ftatutes of mort- 
 main, ufually vefted them in the names of 
 truftees. This is faid to have been the cafe 
 of the greater part of the eftates in England, 
 when Henry the fifth began to reign. If the 
 fiduciary betrayed the confidence repofed in 
 him, by refufing to account for the profits, 
 
 * Yearb. 6 E. III. 47. r Yearb. 21 E. III. 31. 
 
 x Seld. hift. tithes, c. xiv. 4.- Suits for tithes were 
 
 alfo determinable ab antique in the exchequer. (Hard. 5. 116. 
 
 38 Aff. pi. 20, where it is added, and note, " that neither the 
 
 common pleas, nor king's bench, will hold conufance of tithes.") 
 
 ' 2 Inft. 552. 
 
 no
 
 :L E c T . 6 . origin of the court of chancery. 183 
 
 no relief was to be obtained but at this altar 
 of refuge, (ara boni & aquij where a fuitor 
 might compel a confcientious difcovery by his 
 adverfary's oath. The unpopularity of this 
 court feems therefore to have arifen, not from 
 its elTential chara&eriftics, but partly from the 
 indifcretion, inability, or injuftice of fome 
 chancellors, and partly from its incapacity to 
 award any redrefs, any reimburfement of ex- 
 pences, to a defendant dragged hither on un- 
 warrantable or untrue fuggeftions. 
 
 The laft mentioned defeft was remedied fo 
 early as by the ft. 17 R. II. c. 6, which gave 
 this court authority in fuch cafes to decree 
 difcretionary damages, and of courfe b increafed 
 its bufinefs, by removing fo juft a complaint 
 
 of hardfhip and iniquity. 
 
 t 
 
 To c addreffes againft the chancery our Plan- 
 tagenet princes and their minifters gave un- 
 willing attention, fometimes an evalive anfwer, 
 
 k Eq. ca. abr. 129. n. (It is there erroneoufly cited as the 
 
 13 R. II.) The firft decree in chancery extant is of the fam 
 
 year. (4 Inft. 83.) 
 
 c 2 And. 164. All the addrefles feem to have been by 
 th commons alone. 
 
 N fometime$
 
 184 Of the lord chancellor, and the L E c T . 6. 
 
 fometimes a peremptory refufal. The * 
 commons, in the third year of Henry the 
 fifth, reprefent the procefs by fubpena, (the 
 prefent groundwork of a fuit in this court) 
 as invented by e John Waltham bifhop of Sa- 
 liibury, out of his fubtlety, ufurping the pro- 
 vince of other courts. That petition only 
 prayed relief as to matters determinable at 
 common law, feemingly admitting, in extra- 
 ordinay cafes, the fubpena procefs, tho of late 
 introduction. Yet the king gave a flat nega- 
 tive to their requeft : in which perhaps he 
 manifefted lefs difcretion and moderation than 
 his royal father', who to fimilar applications 
 anfwered; that fuch writs mould not iffiie, 
 but when neceffity required; thus referving 
 to the courts of common law their juft and 
 native jurifdiction, and not bamming from 
 the chancery fuits proper for equitable relief. 
 
 d i Rol. abr. 371. 
 
 e Keeper of the privy feal. 10 R. II.- Arundel bilhop of 
 Ely (afterwards archbiihop fucceffively of York and Canter- 
 bury) was in that year made chancellor, by advice and confent 
 of parliament, (i Parl.hift. 422. Spelm. gl. m.) Sir William 
 Blackflone, (3 Black, coram. 52) and Selden, (Seld. priv. bar. 
 part. 2. c. 4.) call bifhop Waltham chancellor. He is not 19 
 Spelman's lift, Gl. v. cancellarius, nor in Dugdale's orig. ju- 
 rid. If he never was in that office, it feems the more ilrange, 
 (tho he might invent the writ of fubpena) to confider him as th 
 founder of the equitable jurifdi&ion of the chancery. 
 
 * i R. A. 370 &c. 
 
 On$
 
 L E c T . 6. origin of the court of chancery. 185 
 
 One s of thefe anfwers runs thus : " the king 
 wilt charge his officers to be more fparing in 
 fending for his fubjeds than they have been 
 heretofore: but it is not the intention of our 
 {aid lord the king, that his faid officers fhall 
 fo far refrain, that they may not fend for his 
 fubjefts in matters and caufes necefTary, as 
 hath been done in the times of the good progeni- 
 tors of our faid lord the king'' From thefe 
 latter words we may conclude, that fomething 
 fimilar in effect to the fubpena procefs, and 
 not much different in form, (as h perhaps a 
 fcire facias and attachment thereon) was in ufe 
 before this fubtle invention of bifliop Wal- 
 tham. And if the writ of fubpena was de- 
 vifed in the reign of Ridiard the fecond, it is 
 unreafonable to look upon the equitable jurif- 
 diction of the chancery as depending folely 
 thereon, and a novel invention alfo of the 
 fame date : judging a priori, fuch a project 
 was neither likely to be planned, nor to fuc- 
 ceed : and the former facts feem to warrant 
 the contrary prefumption. It is ' allowed, 
 that fo early as the reign of Edward the fourth 
 
 E 4 H. IV. i Chanc. rep. app. 20. 
 
 * Seld. hift. tithes, c. xir. 4. F. N. B. 141. 
 
 * 3 Black. 52. v. Bro. abr. t. con/ciince & Jubpcena 13 /- 
 junftjons. 
 
 the
 
 1 86 Of the lord chancellor, and the L E c T . 6. 
 
 the prefent practice was eftablifhed in daily 
 ufe. 
 
 The kft ftruggle, which the court of chan- 
 cery was engaged in for its equitable power, 
 was the controverfy whether it was reftrained 
 by the ftatute 4 H. IV. c. 23. from giving relief 
 after a judgment at law. The common mode of 
 fuch relief is by injoining the plaintiff at law not 
 to fue out execution. This doubt was folved 
 fo kte as the reign of James the firft : he 
 referred it to k five lawyers, then as counfel, 
 and afterwards as judges, of the firft eminence 
 in their profeflion. They reported, and the 
 king confirmed their deciiion, in favour of the 
 jurifdiftion claimed ; t which appeared to have 
 been exercifed at leaft from the beginning of 
 the reign of Henry the feventh. Their opi- 
 nion * is maintained with very elaborate argu- 
 ments, as well by themfelves, as in a treatifa 
 profeffedly written on the fubjedt. It may 
 however be doubted, whether this point, at 
 
 k Bacon, lord chancellor, 16 J. I. Montague, chief juftice of 
 the king's bench, 14 J.I. Yelverton, juftice of the common 
 pleas, i C. I. Crew, chief juftice of the king's bench, 22 J. I; 
 and Walter, chief baron, i C. I. Chron. fcr. ad fin. Dugd, 
 orig. jurid. 
 
 1 i Chanc. rep. app. 
 
 now
 
 L E c T . 6 . origin of the court of chancery. 187 
 
 now fettled, has increafed the bufinefs of the 
 court. The event of a fuit at law, from a 
 variety of cauies, is fometimes doubtful and 
 uncertain. If it were eftablifhed, that, after 
 a judicial determination at law, no relief could 
 poffibly be obtained in equity, many fuitors 
 might make timely applications to the chan- 
 cery, from groundlefs apprehenfions of legal 
 rigor and injuftice. 
 
 It has been m argued, that fince the union 
 the chancery hath a general jurifdiction 
 throughout the united kingdom, becaufe the 
 judge of it is fliled lord chancellor of Great 
 Britain, or lord keeper of the great feal of Great 
 Britain, not of England, as before that event. 
 But the lord chancellor on that occafion faid*, 
 all the powers of this court flowed from the 
 great feal; which is now indeed made the 
 great feal of Great Britain ; yet the acl: has 
 not made the chancery fo. Its ordinary 
 procefs does not iiTue into Scotland; and a 
 ne exeat regno , which is a writ founded on 
 the common law p , may be awarded to prevent 
 3 man's retiring thither, (it being out of the 
 
 Str. 149. Str. 158. f 3 Mod. 127: 
 
 f 2 Sal. 702. 
 
 reach
 
 1 8 8 Of the lord chancellor and the L E c T . 6 . 
 
 reach of this jurifdiction) as well as to parts 
 beyond the feas. In one q cafe of this fort 
 the court doubted its authority to alter the 
 form of an original writ, and the application 
 failed. But a. r book of the higheft credit 
 eftablifhes, not only the practice, but the form 
 of the writ, which ought to be to prevent the 
 party from retiring out of the realm, or to Scot- 
 land, 
 
 The king cannot erect new courts of equi- 
 ty, to proceed without a jury, and in deroga- 
 tion of the common law. But it is s faid, 
 they may be holden by prefcription, which 
 implies a legal inconfiflency, (unlefs we be- 
 lieve the royal prerogative to have varied in 
 this refpect at different periods) fince pre- 
 fcription, as a title to any franchife, pre-fup- 
 pofes a royal grant. It is alfo ' afferted, that 
 counties palatine, (to " which courts of equity- 
 are thought incident) may be created by the 
 king. Roman emperors created palatinates, 
 
 i Ca. temp. Tal. 196. 
 
 r i Wms. 263. The cafe here reported, tho prior in 
 
 time, was not printed when the doubt alluded to, arofe ; and 
 as it was above twenty years earlier, might eafily efcape obfei> 
 vation. 
 
 4 In ft 87. 4 Inft. 204. marg. Dav. 60. b. 
 
 Hob. 63. 
 
 the
 
 LECT.6. origin of the court of chancery . 189 
 
 the crown of England is imperial, therefore 
 our princes have that power. This is the 
 realbning, but can hardly be thought ferious, 
 much lefs convincing or fatisfa&ory. Indeed 
 Chefter, and Durham, and fometimes Lan- 
 cafter, are x called counties palatine by pre- 
 fcription. But the true origin of fuch fup- 
 pofed prefcription was probably not merely a 
 royal grant, but fome ordinance confirmed in 
 the great council of the realm, or fome flipu- 
 lation with the inhabitants at the time they 
 were completely confolidated with the Englifh. 
 monarchy. Ely is not a county y palatine. 
 Befides, its exempt jurifdidtion depends on 
 ads of parliament. The exchequer, like the 
 court of which I have been difcourfing, is 
 a branch of the aula regz's, and from z that 
 fource may derive its equitable jurifdi&ion. 
 The courts of equity in London and the 
 cinque ports are fandtioned by pofitive fta- 
 tutes. It is therefore upon the whole juft- 
 ly queftioned a , whether fuch equitable ju- 
 dicature may be holden fimply by prefcrip- 
 tion. It mould feem, that the royal preroga- 
 
 * 4 Inft. 204. r Carth. 109. 
 
 * Not fimply from prefcription; (4 Inft. 1 18, 9.) much lefs 
 from the ft. 33 H. VIII. c. 39. 
 
 Hob. 63. 
 
 tive
 
 loo Of the lord chancellor > and the LiCT.6 
 
 live extends not, in this manner, to abridge 
 or derogate from the common law. To this 
 effecl: was that b refolution of many of the 
 judges, fir Edward Coke being one, that the 
 king cannot grant a commiffion to determine 
 any matter of equity, but it ought to be de- 
 termined in the court of chancery, which 
 hath had jurifdidtion in fuch cafe immemo- 
 rially, and had always fuch allowance by the 
 law ; but fuch commiffions, or new courts of 
 equity, mail never have fuch allowance, but 
 have been adjudged to be againft law. Chief 
 juftice Hobart, therefore, c calls the chancery 
 a fundamental court, as antient as the king- 
 dom itfelf, referring, as plainly appears, to 
 that equitable power of judicature, which 
 our earlier princes were bound and accuftom- 
 ed to exercife, and which I have thus at- 
 tempted to trace downwards from them. At 
 prefent it ftands uncontradi6ted on the re- 
 cords of parliament, that "the d conftitution 
 : of this court was long before the conqueft," 
 The neceffity alone of fuch judicial power 
 might perhaps infer, that it was known, and 
 felt, however fparingly exerted or imperfectly 
 
 b 12 Co. 113. 6 Hob. 63. 
 
 * St. 13. C. II. ft, i. Ruffh. ft. app. 178, 9. 
 
 2. defined
 
 I. E c T . 6 . origin of the court of chancery. 191 
 
 defined from the circumflances of the times, 
 in every age of our juridical polity. 
 
 This will lead me, in the next lecture, to 
 make fome inquiry into the nature of equi- 
 table jurifdidlion in general, and as it is 
 adopted and allowed to take place in this 
 country. 
 
 LECTURE
 
 192 Of equity in general, and I E c T . 
 
 LECTURE VIL 
 
 Of equity in general t and the Englifh courts of 
 equity. 
 
 HAVING in the laft Mure treated 
 hiftorically of the lord chancellor's 
 office, and attempted to trace the origin and 
 fource of his equitable jurifdiction, I. am re- 
 gularly led to confider the general nature and 
 necetfity of fuch courts of equity, and the 
 chief properties^ by which they are in this 
 country characterized and diftinguifhed from 
 courts cf law. This feems neither an im- 
 proper nor a mifplaced difcuffion, before we 
 proceed farther in this courfe of fludies, more 
 efpecially, as in the following lecture I mall 
 have occafion to mention appeals from thefe 
 courts of equity. 
 
 Equity is a judicial interpretation of laws, 
 which, prefuppofing the legiflator to have in- 
 tended
 
 1 E c T . 7. the Englifo courts of equity. 193 
 
 tended what is juftand right, purfues and ef- 
 fe&uates fuch intention. The * Ariftotelian 
 definition runs thus, " x^ lg\v aoSfa y <pu<rt$ y TX 
 7nax,, eTrotvof&upa vop?, fl gAAstVe* $toi TO fco-S-o- 
 A, and the very nature of equity is the cor- 
 rection of the law, wherein it is defective by 
 reafon of its univerfality." The thought is 
 very fagacious, and worthy of its great author; 
 but is capable of more elucidation, than he 
 flops to give it. By univerfality then is meant 
 that the law deals in general expreffions, at 
 leaft fo far general, as to include fome cafes 
 within the words, which are not within the 
 reafon or fpirit of its coercion, and to omit 
 other cafes, which required the like provi- 
 fional inftitutions. For it is impoffible, that 
 any premeditation fhould difcover, or ever fo 
 voluminous a code exprefs, that endlefs feries 
 of complicated occurrences, which may vary 
 the moral fitnefs of applying pofitive ordinan- 
 ces. In thefe inftances the law, (or rather 
 the words of it,) is defective, that is, in the 
 original language of the definition, !AAV, it 
 leaves out fomething, which it is the pro- 
 vince of equity to fupply. Here then a j udge 
 
 * Arift. Ethic. Nicom. I. v. c. 14. This definition is ap- 
 proved by Puff. 1. ofn. & n. b. v. c. 12. ai, and adopted by 
 
 Grotius de animate. 
 
 O ought
 
 194 Of equity in general, and LECT. 7. 
 
 ought to interrogate himfelf, what the law- 
 giver, as an upright man, would have decreed, 
 if the cafe in queftion bad fallen within his 
 forefight and contemplation. Grotius, in his 
 little treatife de aequitate, inforces the necef- 
 iity of thus recurring to equitable interpreta- 
 tion with a fort of mathematical illuftration. 
 " Cum enim in<zqnalibus (fays he) idem non 
 pojjit cjje tzquale, res autem fape funt inaquaks, 
 lex vero una femper atque eadem., neceffario con- 
 fequitur, alia virtute opus cfle, qua inccqualibus 
 rebus Juam cuique tequalitatem pr<zjlet y unds 
 htec e oirtus tequilas Latinis, Grtecis vero 
 dicitur" 
 
 ^w^ , , ;;^ < . 
 
 Equity, therefore, regarding the intent, and 
 not fcrupuloufly fettered by the letter of 
 the law, has to this end a twofold opera- 
 tion, fometimes abridging the compreheniive- 
 nefs of the text, and fometimes extending the 
 words fo as to include other cafes within pari- 
 ty of reafon. 
 
 i . An inffonpe b of the former kind may be 
 found in one of our earlieft and beft reporters. 
 
 * PI. 465, 6. 
 
 An
 
 . t E c T . 7* the Exg/jft> courts of equity. 195 
 
 An old ad: of parliament provides, that goods 
 refcued from a {hip, where there is no legal 
 wreck, fhall be delivered by the fherifF to 
 fafe cuftody, in order to their being claimed 
 within a year and a .day; Yet if the goods 
 are perimable, and the meriff fells them, re- 
 taining the value in their ftead^ the reftri&ive 
 equity, (abridging the comprehenfivenefs of 
 the text, which happened not to make the 
 due provifion for perimable commodities) 
 teaches us, that he acts more agreeably to the 
 intention of the lawgiver, who defigned the 
 benefit of the trading owner. 
 
 2. On the other hand c " ubilex eftfpecia- 
 Us et ratio ejus generalis t generalitcr eft acciplen- 
 da" Thus d two antient fbtutes refpecling 
 executors are conftrued to extend to admini- 
 ftrators, fince no poffible reafon can be fug- 
 gefled, why they mould be exempted from 
 the fame provifional regulations. So in di- 
 vers acts of parliament, the word " perfons" 
 has been ' holden to include corporations ; 
 which is a larger fenfe than it bears in ordi- 
 
 c 2 Inft. 43. 83. 10 Rep. 101. b. 
 
 & PI. 267. Hard. 211. c i Mod. 164. 
 
 O 2 nary
 
 196 Of equity in general, and L E c T . 7. 
 
 nary difcourfe ; and our modern ftatutes fel- 
 dom fpeak a very technical language. 
 
 A queftion however arifes, whether penal 
 laws may be extended by equity; to which 
 very f refpectable judges give their affirma- 
 tion. It is true, an offender fometimes may, 
 by fubtlety, evade the letter of the criminal 
 code, and yet contract as great a fhare of mo- 
 ral guilt, as if he had tranfgreffed exprefsly 
 againft the words of the law. But it does 
 not follow, that the fame meafure of civil 
 puni(hment ought to be inflicted. For that 
 would render the enjoyment of life and liber- 
 ty precarious and unfecure, depending on the 
 degree of fagacious underflanding, on the 
 paflions alfo and prejudices of the judicial ma- 
 giftrate, and of courfe expofed to continual 
 and painful apprehenfions. The familiar in- 
 flance therefore, felected by lord Bacon S 9 
 forces our afTent, and illuftrates the expe- 
 dience of the doctrine, that penal fanctions 
 are not to be enhanced by equity. " If the 
 law be, (fays he) that for fuch an offence .-a 
 man mall lofe his right hand, and the offender 
 
 f Grot, de zequit. PI. 467, 8. 
 f Max. of the law reg. i z. 
 
 hath
 
 L E c T. 7. the Engltfh courts of equity. 1 97 
 
 hath had his right hand before cut off in the 
 wars, he fhall not lofe his left hand, but the 
 crime fhall rather pafs without the punim- 
 ment, which the law affigned, than the let- 
 ter of the law mould be extended." This is 
 not merely a fpeculative inftance, invented 
 by that great oracle of wifdom, but the fpe- 
 cific punifhment exprefsly ordained in the ft. 
 33 H. VIII. c. 12. All difcretionary judica- 
 ture, therefore, is with us (except as to the 
 quantum of an amercement, the duration of 
 penal imprifonment, or other corporal pu- 
 nifhment, as whipping and the pillory, fome- 
 times ordered and fometimes omitted) confin- 
 ed to civil litigations refpecting property. 
 The rigor of penal h laws may be mollified, but 
 not enlarged, by equitable construction. 
 
 > , 
 /I h 
 
 Having thus far coniidered the abridgment 
 or extenfion of the legal text by judicial equi- 
 ty, there is another part of the Ariftotelian 
 definition, which calls for fome attention. 
 Equity is, " g7ravo^%^a," the correction of 
 the law. This correction is not by way of 
 control, but of expofition : it does not op- 
 pugn, but promote the meaning of the law. 
 
 * V. I Black, comm. 88. 
 
 Q 3 For
 
 198 Of equity in general, and L E c T . 7 , 
 
 For if the law, understood according to the 
 unqueftionable intention of the legiflator, has 
 defcended to particulars, has defcribed the 
 very matter under confideration, it is not in 
 fuch cafe defective by reafon of its univerfali-r 
 ty, nor is there any room for the interpofi- 
 fion of equity, any warrant or authority for 
 that kind of juridical redrefs. We may indeed 
 doubt, how far certain ordinances are confo- 
 nant to natural juftice, but not whether they 
 pught to be obeyed, (for that top is a momen- 
 tous duty) unlefs they are plainly- fubverfive 
 of fome principle of divine or moral obliga- 
 tion, and require us to act, rather than to fuf- 
 fer j and even then it is a matter of private 
 confcience, remote from the office of judicial 
 piagiftracy ; which is conftituted to declare, 
 not to alter or infringe the law. " Perquam 
 durum eft, fed ita lexfcriptaeft" is the popu- 
 lar phrafe of Ulpian 1 , in a cafe where the 
 terms were fufficiently explicit tp exclude 
 that equitable conftruction, which reafon 
 would 9therwife have dictated. By another 
 Roman law, a minor was not to be intrufled 
 with his property till he had completed 
 twenty- five years of age. Let us fuppofe tha$
 
 L E c T . 7 the Engtifo courts of equity. 199 
 
 a guardian, fix days only before the. appointed 
 period, tranfmits to his ward the management 
 of his eftate, who fquanders the patrimony by 
 profufe mifcondudr.. It is not likely, that the 
 young heir would, during thofe fix days, have 
 acquired a much greater maturity of difcre- 
 tion. Yet Harmenopulus k writes, that the 
 guardian is refponfible for the diffipated 
 wealth. The law is fufficiently explicit ; 
 there is no unforefeen exigence of peculiar 
 circumflances ; and if the opinion of the le- 
 giflator himfelf could be demanded, he would 
 probably anfwer, that his intention was to 
 prohibit, and not to allow, every guardian to 
 
 eftimate the difcretion of his ward. 
 
 n ^ i. 
 
 In like manner, the early Athenians enter- 
 tained a general notion of judicial equity, as 
 fupplemental merely to their written laws. 
 For their ' judges were fworn to adminifter 
 relief according to the laws, where the laws 
 were particularly explicit, and in other cafes 
 to award the moft equitable fentence. 
 
 k L. i. t. I. 30. " MJJ$ QaiticrQau Qt\tfU7rolegci ra >o- 
 , not to make oftcntation of more humanity than the law." 
 Iov. Ixxxii. c. 10. 
 J Pet, LI. Att, 1. iv. t. 3. 6. 
 
 O 4 Thefe
 
 200 Of equity in general, and LECT. 7. 
 
 Thefe fuggeftions may concurrently ferve 
 to form fome competent idea of general 
 equity, as directing judicial determinations. 
 
 Let us next take a view of equity in our 
 municipal courts. The foundation and ori- 
 gin of equitable j urifdiclion in this country, 
 hiftorically fpeaking, was fully difcourfed on 
 in the laft lecture. It remains, that we at- 
 tempt to delineate the chief properties, by 
 which, at prefent, courts of equity are with 
 us diftinguimed from thofe of law. 
 
 Sir John Trevor, after many years experience 
 in his profeffion as an advocate and a judge, 
 defcribes n equity in this country as qualify- 
 ing, moderating, and reforming the rigor* 
 hardnefs, and edge of the law, as affifling it, 
 where it is defective and weak, and defending 
 it from crafty evafions and new fubtleties 
 againfl the juftice of it. 
 
 We are not, however, to fuppofe all this 
 accomplimed by the unreftrained arbitrament 
 of the reigning judges. The ufe of prece- 
 
 Pr. Ch. 244.
 
 LECT.7- the EngKJh courts of equity. 201 
 
 dents, and their binding authority, were under- 
 flood foon after the practice of thefe jurifdic- 
 tions became fo diffufive, and equal reve- 
 rence was paid to them in courts of equity as 
 of law. Before the fplendid abilities of lord 
 Nottingham had fhone forth in the court of 
 chancery, and fuggefted to his fucceflbrs the 
 outlines of a fcientific fyftem, in a great" 
 caufe there depending, we find the chief juf- 
 tice of England referring himfelf to former 
 adjudications. At which the other chief juf* 
 tice exprefled fome aftonifhment, urging this 
 dilemma, that if any precedent could be pro- 
 duced the fame with the cafe before them, the 
 realbn and equity would be the fame in it- 
 felf : and if the precedent be not the fame, it 
 is not to be cited, being not to that purpofe. 
 But the lord keeper, properly correcting him, 
 faid, *' certainly precedents are very necef- 
 fary and ufeful to us, for in them we may find 
 the reafons of the equity to guide us ; and 
 befides, the authority of thofe that made 
 them, is much to be regarded : we mall fup- 
 pofe, that they did it upon great confideration 
 and weighing of the matter ; and it would be 
 very fhange and very ill, if we fhould diflurb 
 
 * i Mod. 397. 
 
 and
 
 202 Of equity in general t and L E c T . 7. 
 
 and fet afide what has been the courfe for a 
 long feries of time and ages." Thereupon 
 it was ordered, that they mould be attended 
 with precedents, before they gave their opi- 
 nions. Since that time above a century has 
 elapfed, during which the copious variety of 
 fuits determined in chancery has rendered its 
 rules of decifion proportionably lefs difcre- 
 tionary and vague. So that a perfectly new- 
 point, or res integra, as it is called, unaffected 
 by former adjudications, occurs now very 
 rarely in this court; and the fludious attend- 
 ant frequently hears more cafes referred to and 
 commented upon here than in courts of law. 
 The wifdom of the maxim, " ft are decifis," 
 was necefTary to be adopted, when the bufi- 
 nefs of the court fo extenlively increafed, 
 fince otherwife we muft have feen the utmofl 
 contradiction and uncertainty in our rules of 
 property, and fcarce any man could have re- 
 Jied on the {lability of his own title. 
 -. * ._ 
 
 After thefe obfervations, it may well be 
 aiked, how then are courts of equity in our 
 country diftinguimed from thofe of law, fince 
 with us equity is become fo fyftematic an 
 jnftitution,
 
 L E c T . 7 the Engttflj courts of equity. 203 
 
 In the firft place, it is well known to be 
 the prerogative of the Englifh courts of 
 equity, to judge without the intervention of 
 a jury. I mall not, however, enlarge upon 
 this -ftriking variance, becaufe it would not 
 much promote the ends of this difcourfe, 
 which is intended to illuftrate what feems 
 more in need of elucidation. 
 
 In other refpects then, our courts of equity 
 at prefent differ from thofe of law more in 
 exteripr matters of practice than in principle, 
 and more in the mode of relief than in determin- 
 ing the eiTential merits of the caufe, as to the 
 naked queftion, who mall prevail in the liti- 
 gation. The judgments of the common law 
 are uniform, fimple, and invariable, accord- 
 ing to the nature of the action - t as that the 
 faid William recover feifin, or his term of 
 years, or his damages, (fpecifying the fum) by 
 occafion of the not performing the faid pro- 
 rnifes and undertakings; all which are put 
 for examples. But equity modifies the relief 
 to anfwer all the particular exigencies of the 
 eaufe fully and circumftantially, makes bind* 
 
 Still, if an iflue to be dire&ed by a jury, to afcertain an Im* 
 rtant faft, efpecially relating to lands, is applied for, it is rare- 
 
 ing
 
 204 Of equity in general, and LECT. 7. 
 
 ing and authoritative declarations concern- 
 ing the rights alleged, directs many things 
 to be mutually done and fuffered, and chalks 
 out the conduct to be refpectively obferved 
 by the feveral parties to the fuit ; who fre- 
 quently are very numerous, and fuftain va- 
 rious relations, fome of the nominal defen- 
 dants perhaps having the like intereft and ob- 
 ject as the plaintiff, and this alone creating a 
 wide difference from actions at law. The 
 due exercife of fuch kind of judicial power 
 is the common refult of natural reafon, and 
 we not unfrequently hear illiterate jurymen 
 (abnormes fapientes) attempting to ufurp 
 the fame jurifdiction, to make conditions 
 with the litigants, and to decree what is juft 
 on both fides. Yet, for inftance, if a cove- 
 nant be broken, the plaintiff at common law 
 can only recover either the ftipulated penalty 
 for nonperformance contained in the deed, or 
 damages to be afieffed and appretiated by a 
 verdict. Thefe remedies are juftly thought 
 inadequate. For the nonobfervance of fome 
 agreements can hardly be compenfated, or are 
 not proper to be fo, by pecuniary confidera* 
 tions : and confcience obliges us, not only to 
 make fatisfaction, where we cannot fpecifi- 
 cally fulfil our contracts, but actually to fuU 
 
 fit
 
 LECT. 7. the "Engllfh courts of equity. 20$ 
 
 fil them, when it is in our power. Courts of 
 equity, therefore, have authority to inforce 
 the fpcclfic performance of agreements. But 
 the exertion of fuch authority may fometimes 
 be retrained by pofitive law, fometimes 
 abridged by the force of precedents, and 
 fometimes the court may voluntarily refrain 
 its operations, where natural juftice requires, 
 that the contract, tho entered into, mould 
 not be carried into execution. To enlarge 
 on thefe topics is inconfiftent with a general 
 and elementary difcourfe, and will occupy our 
 attention, when I mall fpeak more particu- 
 larly of fuits in equity. At prefent we may 
 obferve, that this power of modifying its de- 
 crees, unlike the Jlated conclfenefs and tradi- 
 tionary forms of legal judgments, is manifeft- 
 ly eflential to equity, and perhaps the moft 
 fruitful fource of the bufmefs of thofe courts. 
 Hence it decrees an average or contribution to 
 be made, in fuch proportions as any lofs or 
 burthen ought to be fuftained : as, where * 
 the goods of one merchant are thrown over- 
 board in a ftorm for the fecurity of the other 
 owners of the cargo ; or, q where two eflates 
 
 are incumbered with a joint charge, and the 
 
 ' ** j *i ^/) ^y 
 
 Mo. 297. Sho.ca. part. 20. * 2 Vern. 355. . 
 
 devifee
 
 2 06 Of equity in general, and L E c T. 7. 
 
 devifee of one pays the whole demand. Hence 
 alfo it directs fuch queftions to be tried by a 
 jury, which are proper to be afcertained, and 
 which, by the obftinacy of parties, or other 
 caufcs, could not eafily be put into a courfe of 
 legal decilion. Hence likewife it affifts in 
 the more eafy partition of eftates, (where the 
 rights of the parties are complicated and em- 
 barrafled, and difficulties might arife in the 
 proceeding at common law) in the recovery 
 of fimple contract debts, where judgment 
 creditors have fwept away the perfonal effects, 
 in the taking of accounts, and in other in- 
 ilances, in which the purpofes of juftice 
 could not be readily or effectually anfwered 
 by a formal judgment at law. 
 
 Thus alfo a prohibitory writ, called an in- 
 junftion y is more expeditioufly and fpecifically 
 remedial in preventing the wafte and fpolia- 
 tion of eflates, than redrefs by action at law. 
 Injunctions are with equal reafon granted to 
 inhibit the fudden and iniquitous diflblution 
 of a commercial partnership, to ftay proceed- 
 ings at law, and in general to reftrain any in- 
 jury and mifchief, not eafy to be repaired. I 
 fhall fpeak more at large of injunction caufes 
 hereafter, and I only mention this branch of 
 
 authority
 
 L E c T . 7 . the Rnglifh courts cf equity. 207 
 
 authority now, as a means of difplaying the 
 general nature and utility of equitable jurif- 
 diclion. In fine, the power of occafionally 
 prefcribing or forbidding particular things to 
 be done or fufFered, by a decree tarn in perfo- 
 nxm quam in rem, feems to be the principal and 
 effential characterise, which in this country 
 diftinguifhes courts of equity from thofe of 
 kw. 
 
 There is alfo another important difference, 
 which does not however participate of the 
 fubftance of equity fo much as the former ; I 
 mean, that in thefe courts the defendant is 
 bound to make a difcovery upon oath of the 
 matters in litigation. The common law for- 
 bids any man to be fworn in his own caufe : 
 becaufe, adhering to general principles, it 
 will not adminifter temptation to perjury. 
 And in courts of equity, certain bounds are 
 fet to the requiiition. Whether the due limits 
 are defined, is very difficult to afcertain. The 
 principal reflrictions are, that no man is com- 
 pellable to give any anfwer, whereby he 
 might confefs an indictable crime, or incur a 
 penalty, nor, in general^ to divulge the title of 
 his eftate. But to difcover the confideration 
 of a bend, charged to be fraudulently obtain- 
 ed,
 
 208 Of equity m general, and LECT. 7. 
 
 ed, and to unravel other myfteries of circum- 
 vention, in thefe and fimilar cafes, we may 
 reafonably hope, the practice is conducive to 
 more good than evil, and much oftener in- 
 flrumental to the ends of juftice, than fub- 
 fervient to perjury and furreptitious conceal- 
 ment. 
 
 It is eafy to conceive, how wide an extent 
 of equitable jurifdiction depends on thefe two 
 properties of modifying its decrees to the oc- 
 cafion, and of compelling a difcovery on the 
 defendant's oath. 
 
 The common obfervation, (which it is 
 time now to take notice of) is, that fraud, 
 accidents, and trufts, are the proper objects of 
 this judicature. But it would be difgrace- 
 ful to our juridical polity, if a queftion of 
 fraud was fafe from the investigation of the 
 ordinary tribunal. The truth is, it is decid- 
 ed, and by the fame criterions, except as to 
 the advantage of a difcovery by the defen- 
 dant's oath, in every court. And as to acci- 
 dents, he that reads the firfl cafe in Plowden's 
 reports or commentaries, will fee how ready 
 the antient fages of the law have been to re- 
 lieve againfl the hardihip of inevitable occur r 
 
 rences.
 
 L E c T . 7 . the Englifl) courts of equity. 209 
 
 fences. The diftindtion is, that equity exerts 
 the two powers before fpoken of. It firft 
 obtains a more full and eafy difcovery ; and 
 then, by its particular mandates fuited to the 
 occafion, decrees more adequate and effectual 
 redrefs, courts of law being reftridted to pre- 
 fcribed forms of judgment ; and as to cafes of 
 accidents, requiring equitable relief, fuch for- 
 mal judgments would but rarely accomplish 
 the ends of juftice by a final and perfect ad- 
 juftment of the matters in difpute. 
 
 Trufts indeed, without any reference to the 
 diftindl powers above defcribed, are the r pe- 
 culiar province of equity. Trufls in landed 
 eftates were foftered and brought to maturity 
 by the chancery, of which they have recipro- 
 cally eftablifhed and advanced the jurifdidtion, 
 as was briefly intimated in the laft lecture. 
 Such trufts, in one point of view, ferve to il- 
 luftrate the nature of our juridical equity. 
 They follow the maxims of legal eftates as 
 nearly as poffible, that there may not be two 
 rules of landed property. But if the perfon 
 intitled to the fiduciary profits, (called in a 
 barbarous dialed: " the cejluy que truft" ) re- 
 
 r Per Coke C. J. 2 Bui. 337. 
 
 P quires
 
 2 1 o Of equity in general t and L E c T . 7 . 
 
 quires the actual legal feiiin of the eftate, he 
 mufl obtain it by fuit in equity : the truftees 
 cannot be compelled to give it up by any court 
 of law. 
 
 It is owing perhaps partly to this fource, 
 conlidering an executor as a truftee, and part- 
 ly to the frequency of ecclefiaftical chancel- 
 lors, that courts of equity inforce the pay- 
 ment of legacies. If it be a mere perfonal be- 
 queft, they have a concurrent jurifdiction 
 with the fpiritual judge. But if the legacy 
 is to arife from lands, to be fold for that 
 purpofe, or charged therewith, it can * on- 
 ly be demanded and recovered in a court of 
 equity. 
 
 Subtraction of tithes opens another large 
 field of litigation in courts of equity. Their 
 jurifdidtion in this refpedr, efpecially in fuits 
 for fmall tithes, was formerly .doubted ', but 
 is now firmly fettled. Thefe caufes feem to 
 have been introduced into the chancery and 
 exchequer, by the preference given to them, 
 as having more extenfive powers than the 
 fpiritual court, and being competent alfo to 
 
 Hob. 265. * ' 2 Ca. ch 237. Hard. 329. 
 
 compel
 
 LECT. 7* the Eng/t/b courts of equity. 211 
 
 compel a difcovery by the oath of the party 
 as to the quantum of the tithes due, to de- 
 cree an account to be taken thereof, and to 
 put any pretended modus or compofition into 
 a proper form to be tried by a jury, none of 
 which advantages were attainable in courts of 
 law. But as it is a maxim, that equity will 
 not aiTifl in the recovery of penalties and for- 
 feitures, the fuitor " muft pray relief only for 
 the fingle value, waiving any right to the 
 treble value of the tithes, which he has by x 
 ftatute. 
 
 Another great occafion for reforting to 
 courts of equity happens, where it is thought 
 neceflary for a wife to inftitute a fuit againft 
 her hulband, which is invariably difal lowed 
 by the rules and maxims of the common 
 law. 
 
 It feems indeed the better opinion, that a 
 demand of alimony, merely as fuch, can only 
 be made in the ecclefiaftical court. For it is 
 a confequent of feparation or divorce: and in 
 general, matrimonial caufes are appropriated to 
 
 i Vern. 60. Bunb. 193. x 4 & 3 E. VI. c. 13. 
 
 P 2 that
 
 2 1 2 Of equity in general, and L E c T . 7 . 
 
 that tribunal. But y if the hufband has con- 
 tracted with a third perfon to allow his wife a 
 feparate maintenance, me may by her next 
 friend (as he is called in the proceedings, that 
 is % any friend whom me choofes to employ, 
 being of fufficient fubftance to anfwer the 
 cofts) file a bill in chancery for the perform- 
 ance of fuch agreement. For to inforce the 
 fpecific execution of any covenants is in the 
 power of no other courts but thofe of equity: 
 the articles therefore would otherwife be a 
 mere nullity : and this is not a decree of ali- 
 mony as fuch, and confequently does not in- 
 vade the jurifdiction of the fpiritual judge. 
 In like manner, where the matter in queftion 
 may properly fall under the idea of directing 
 the execution of a a truft, that effectually at- 
 taches the interpolation of equity, and enables 
 the wife to obtain a feparate maintenance by 
 decree in thofe courts. Here alfo may be 
 mentioned the b power exerted by the chan- 
 cery of requiring a hufband to make an ade- 
 quate fettlement on his wife, when he fues 
 for her portion, or a legacy bequeathed to her, 
 
 y Pr. ch. 496. Gilb. 152. z i Atk. 570. 
 
 a 2 Vern. 493. Gilb. I. 
 
 b 2 Wms. 639. 3 Wms. 202 ; but not in favour of children 
 only after the wife's death. (Ambl. 509, 510.) 
 
 the
 
 L E c T . 7. the Englijh courts of equity. 213 
 
 the court withholding the voluntary aid of its 
 jurifdidtion, till fuch terms are complied with, 
 and approved; unlefs, being examined, me 
 voluntarily renounces fuch provifion. 
 
 Such are fome of the principal occafions on 
 which courts of equity exercife their judicial 
 authority. 
 
 The reftraint, or abridgment, of their ju- 
 rifdidlion, is no other than what was previously 
 /hewn to conflitute the nature of equity in 
 general ; which is calculated to expound, not 
 to alter, the law. Thefe courts therefore can- 
 not relieve againft an a5t of parliament. As/ if a 
 ftatute makes the leafe of an eccleiiaftical perfon 
 void, equity has no power to enforce it againft 
 the fucceflbr in the leiTor's benefice. But the 
 beneficial powers of an act of parliament may 
 be extended by liberal conftrudlion : of which \ 
 that for fupplying the metropolis with water 
 affords a perfpicuous example. The ftatute 
 mentions the bringing of the water in a trench 
 ten feet wide of brick or ftone. This has 
 been conftrued to authorife the laying of pipes, 
 tjie intent being to give a power in the foil 
 
 ? I Chanc. ca. 227. * z Vern. 431. 
 
 P3 of
 
 214 Of equity in general, and L *E C T . 7 . 
 
 of others, for a fpace not exceeding the mea- 
 fure of ten feet. The fame ftatute fpeaks 
 only of the north parts of the city : yet other 
 places have by equitable interpretation been 
 included in the fame falutary provifions. 
 
 In like manner equity cannot oppugn a 
 fundamental maxim of the common law. It e 
 cannot therefore change or violate thpfe ca- 
 nons of inheritance which govern the title by 
 defcent in this country, even where the eftate 
 is in the hands of truilees, and confequently 
 in a peculiar degree fubjecT: to the immediate, 
 influence of this jurifdiction. So the rule f , 
 that the firft deed and the laft will are to take 
 place, cannot be infringed in equity. There 
 is no claming of decifions. The difference 
 is, that our courts of equity can give more 
 perfect and multiform relief. Where a plain 
 fimple judgment would anfwer the ends of 
 juflice, the fame determination would be hacj 
 in all courts. Betides which, it would require 
 fome fpecial grounds to warrant the bringing 
 of fuch a caufe into the equitable jurifdiftion, 
 which is only in aid of the legal tribunal. 
 That kind of general equity, fpoken pf in the, 
 
 z Wins. 713. f * Vcrn. 473. 
 
 Jbeginning
 
 1 C T . 7- the Englijh courts of equity. 215 
 
 beginning of this lecture, hath, at different 
 feafons, from the earlieft times, and, of late 
 years, very uniformly, prevailed in our legal 
 courts, having been introduced partly by the 
 fpontaneous liberality of judges, and partly 
 by pofitive ftatutes, and the judicial conftruc- 
 tion of them. Equity however, as admini- 
 ftered in our courts of that kind, is ftill dif- 
 tinguimed by its original and animating prin-, 
 ciple, that no right mould be without an ade- 
 quate remedy. There are ftill cafes of injustice 
 where thofe courts only can give any relief. 
 But the great mafs of equitable jurifdiction 
 arifes from cafes reducible to the heads above- 
 mentioned, in which it exerts the diftincl: 
 powers before fpoken of, and in which redrefs 
 at law is either inadequate, or eventually pre- 
 cluded. 
 
 *** 
 That law and equity mould in this country 
 
 nominally be the province of different courts, 
 hath often been thought a paradox, not eafily 
 comprehended by perfons, unconverfant with 
 forenfic proceedings, nor eafily folved by thofe 
 who are acquainted with them. Yet this 
 difpenfation forms a great outline in the ftudy 
 of our laws, and as fuch deferves diligent and 
 early attention. If the foregoing difcourfe 
 
 P4 has
 
 2 1 6 Of equity in general, csV. L E c T , 7 
 
 has failed of properly elucidating the diftinc- 
 tions which prevail between our courts of law 
 and equity, the propofed utility, and the ac- 
 knowledged difficulty, of the undertaking, 
 mufl jointly apologise for its. defeats. 
 
 There remains to he confidered in the next 
 le<fture the higheil judicature, known to this 
 country, the final court of appeal both from 
 decifions in matters of equity, and from judg-. 
 ments at law. 
 
 I, EC-
 
 [ 217 ] 
 
 LECTURE VIII. 
 
 Of the crujl judicature of the lords in 
 parliament. 
 
 WHILE fome difpute the democra- 
 tical part of the antient conftitution, 
 and fome on the other hand depreciate the 
 power of our early monarchs, it feems the 
 univerfal perfuafion, that the intermediate 
 branch of the legiflature, as confifling of pre- 
 lates of the church and temporal nobility, 
 derives from very diftant ages its prefent au- 
 thority and fplendor. 
 
 The judicial character of this auguft af- 
 fembly is, in general, treated only as the re- 
 mains of that ample dominion which was 
 eftablimed under the Norman conqueror, and 
 for fome reigns afterwards refided in the aula 
 regis. The grandees of the realm were judges 
 of that court, and therefore have reafonably 
 been fuppofed to retain fuch powers of jurif- 
 di&ion as have not been exprefsly deputed and 
 
 diftributed
 
 2 1 8 Of tbe civil jurisdiction of L E c T . S . 
 
 distributed to inferior tribunals. Yet this 
 illuftrious judicature may, I think, be referred 
 to iliil higher antiquity, the refearch ending 
 in the iirfl traces arnon^ft us of civil fub- 
 
 o 
 
 ordination. Selden a fpeaks of memorials of 
 caufes determined in the witenagemote of the 
 Anglo-Saxon thanes : and it is mentioned, in 
 the laws b of Edward the confefTor, to be the 
 duty of a king, (as I have before had occafion 
 to obferve) " judicium rectum in regno facer e y 
 ? jujlitiam per con/ilium PROCERUM regnifu i 
 tenere" The power of deciding litigious 
 controverfies is one of the moft natural and 
 original exercifes of general fovereignty. We 
 can hardly believe that juftice was always dif- 
 penfed in every county court to the fatisfac- 
 tion of each party. It is highly probable, 
 if not certain, as I have before intimated, that 
 thofe, who thought themfeives aggrieved, re- 
 ibrted to the king for redrefs, (there being no 
 intermediate jurifuiction) and that their com- 
 plaints were anfwered by advice of the mag- 
 nates regni, at fuch feafons when the exigence 
 ef public affairs inforccd their attendance oi\ 
 their fovereign. 
 
 Vol. III. p. 666 &c. (Wilk. ed.) 
 Wilk. U. Anglo- Sv. zoo.. 
 
 The
 
 LECT.S. the lords in parliament. 219 
 
 The aula regis probably had cognizance 
 over caufes by petition, in the firft inftance, 
 and without any procefs, or previous fcntence, 
 in the inferior courts. But whether the an- 
 tient proceres regni, either before the efla- 
 blifhment of that Norman tribunal, or after 
 the difperfion of its' powers, exercifed the 
 fame kind of original jurifdiclion, may well 
 be doubted. However the lords of parlia- 
 ment, very early at leaft, declined to adjudge 
 caufes which had not been antecedently heard 
 
 J 
 
 before the ordinary courts, theninfututed. Tho 
 they were frequently reforted to at the original 
 commencement of fuits, they conftantiy re- 
 mitted the fuitors to the remedies provided in 
 the common courfe of law, affirming, that 
 the fubject of their application was not pro- 
 per for a petition to parliament. Sir Mat- 
 thew c Hale takes notice, that thefe anfvvers 
 were not merely the bene placita of the lords, 
 but de jure, and on feveral accounts import- 
 antly beneficial to the people of the realm. 
 Yet fuch petitions, from the reign of Edward 
 the firft to that of Henry the fixth, conti- 
 nued to be prefented, and to receive the fame 
 islifcountenance. The fupreme judicature 
 
 e Hid. com. !a-,v. c. 3. 
 
 therefore,
 
 220 Of the civil jurifdiftion of LECT. 8. 
 
 therefore, of which we are treating, is, and 
 for many ages hath been, wholly converfant 
 about litigations, commenced originally before 
 inferior tribunals. For I am fpeaking of its 
 civil jurifdiction, and have referved its pro- 
 ceedings in criminal trials, to be difcourfed of 
 at large under my third general diviiion of 
 ACTIONS. 
 
 Where difficulty of any kind obstructed 
 the adminiftration of juftice, caufes d might, 
 by the common law, be adjourned into the 
 lords houfe of parliament. A "flatute of Ed- 
 ward the third provided for the intervals, when 
 the legillature was not convened, by enacting, 
 that at every feffion a prelate, two earls, and 
 two barons, mould be chofen to hear the pe- 
 titions of thofe who mould complain of griev- 
 ances and delays of judgment, from whatever 
 caufe ariiing : and thefe commiflioners, with 
 the afliftance of the chiefs of the law, mould 
 have authority to award fuitable redrefs. The 
 ftatute appoints by name the firft five lords, 
 who were intruftedwith this viiitatorialfuper- 
 intendence of the courts, namely the archbi-. 
 {hop of Canterbury, the earls of Arundel and 
 
 * i Inft. 72. a. 14 E. III. ft. i. c, 5. 
 
 Huntingdon,
 
 L E c T . 8 . the lords in parliament. 221 
 
 Huntingdon, lord Wake, and lord Ralph 
 Baflet: but whether they ever adled does not 
 appear. The contrary rather may be inferred 
 from a f cafe that happened only eight years 
 after pafling that law. A writ of error was 
 brought in the houfe of lords in the accuf- 
 tomed form, and the king appointed certain 
 carls and barons, with the intervention of the 
 judges, to determine the caufe. In the inte- 
 rim the parliament was diflblved. Hereupon 
 it was apprehended, that thefe commiflioners 
 were unauthorifed to proceed, for the judg- 
 ment to be given was to be the judgment of 
 a parliament, that is, was to be pronounced 
 during the feffion. It is plain, the jurifdic- 
 tion, delegated in this cafe, was not in pur- 
 fuance of the ftatute referred to; for the lords 
 adling under that law feem clearly to have 
 authority to proceed in times of the legifla- 
 ture's recefs ; and if the difficulty was too 
 great to be determined by them, then only 
 they were to report it at the next parliament 
 for final decifion. The provifion however, 
 among many other inftances, mews the great 
 carefulnefs of our anticnt legiflators to guard 
 againft the pofiibility of oppreffion in juridi- 
 
 f Yearb. H. 22 E. III. 3. 
 
 cal
 
 222 Of the civil jurifditiion df L G T .- 8* 
 
 cal matters, and to " E fee that fuch as were 
 in need and neceffity had right." Parlia- 
 ments were then frequent. By a h ftatute 
 lately .made, they were to be holden annually 
 or oftener; and from that, or other caufeSy 
 this new juridical eftablimment, if it ever had 
 any effectual operation, feems to have fallen 
 intodifufe. Judgments have'notbeen thought 
 wilfully delayed by the courts, and where 
 they have been deemed erroneoufly given, re- 
 drefs has been patiently waited for till the 
 next parliament, and then fought in the man- 
 ner hereinafter to be mentioned. Other mil- 
 conduct of judges has been occafionally in- 
 quired of in the houfe of commons : but of 
 this few inftances are recorded; thofe, who 
 have filled the fuperior courts of juftice, in 
 different ages, have, in general, intitled thcrn- 
 felves to the eftcem and gratitude of the 
 nation. 
 
 There was * a judicial order made by the 
 lords in parliament in the reign of Henry the 
 fixth, too funking to be omitted, tho fo far 
 
 * Pf.-82. v. 3. h 4 E. HI. 0.14. 2 Parl. 
 
 hift. 287, 8. 3 Seld. 1523, 4, 5. (Wilk. ed.) 
 
 from
 
 IECT. 8. the lords in parliament. 223 
 
 from being of any avail as a precedent or legal 
 authority, that it ferves to form a contrail to 
 modern practice and opinions. The com- 
 mons coining to the lords' houfe complained, 
 that Thomas Thorpe, their fpeaker, was de- 
 tained in the prifon of the Fleet. Upon this 
 reprefentation, the duke of York, who was 
 intitled prefident of that parliament, declared, 
 that, before the commencement of the fef- 
 fion, he brought an action again ft Thorpe 
 for taking his goods, and recovered- damages 
 to the amount of a thoufand pounds, and 
 that, in cafe the defendant fhould be re leafed, 
 he mould be without remedy for obtaining the 
 faid fum. After confulting with the judges, 
 whofe anfwer was not very explicit, the lords 
 came to a refolution, that Thomas Thorpe 
 fhould continue in cuftody, notwithftanding 
 his privilege as a member, and even fpeaker 
 of the houfe of commons. The reprefenta- 
 tives of the people acquiefced, and meekly 
 chofe another fpeaker. Unlefs we can pro- 
 perly attribute this proceeding wholly to the 
 duke of York's tyrannic influence, it ferves to 
 illuftrate the heighth of ariftocratical power in 
 this country, before the family of Tudor ac- 
 C^ded to the throne. 
 
 PB It
 
 224 Of the civil jurifditfion of LECT. & 
 
 It is time to advert to the prefent fyflem of 
 judicature exercifed in parliament. This is 
 of two fpecies, perfectly diftinct; legal, on 
 writs of error from courts of law, and equi- 
 table, on appeals from courts of equity. 
 
 I. J The regular courfe of the former feems 
 to be as follows : If a judgment, apprehend- 
 ed wrongful and illegal, be given in the king's 
 bench, the party thinking himfelf aggrieved 
 may, upon a petition of right made to the 
 king, (which petitioning is not, fays fir Ed- 
 ward Coke, ex debitojujlitia t but for decency, 
 becaufe fuch judgment was cor am rege, and 
 which form, having been thus introduced, is 
 ftill preferved) and upon his anfwer thereun- 
 to " ^Jiatjuftftia," have a writ of error directed 
 to the chief juflice of the king's bench, for 
 removing the record without delay, in prtefens 
 parliamentum 1 ) and thereupon the roll itfelf, 
 and a tranfcript in parchment, is to be brought 
 by him into the lords' houfe, and after the tran- 
 
 j 4lnft. 21. 3 Seld. 1525, 6, (Wilk. ed.) 2 Bui. 162* 
 
 834. --The courfe there defcribed is ftill adhered to. 
 k Now in Englilh, " let a writ of error iflue as prayed/' or 
 to that effeft. 
 
 1 That is in parliament time ; in its recefs it is made return- 
 able on the day of prorogation, and after adiffolution, on the da/ 
 , in the writ of fummont. 
 
 feript 
 
 - a
 
 t E c T. 8. the lords in parliament. 225 
 
 fcript is examined with the record, m the chief 
 juftice carrieth back the record itfelf into the 
 king's bench ; and then the plaintiff is to a- 
 iign the errors. This " affignment of errors 
 is to be in writing, and left with the clerk of 
 the parliament. The p adverfe party denies, 
 that " there is any error," and prays " that 
 the court of our lord the king, before the 
 king in his parliament, may examine the re- 
 cord, procefs, and matters for error afligned, 
 and that the former judgment may in all 
 things be affirmed." This is called joinder 
 in error. Queftions q of fact are not examin- 
 able in this channel of jurifdiclion. 
 
 The judicial power is only in the lords. But 
 legally and virtually it is the judgment of the 
 king, as well as of the lords, and perhaps too, 
 
 m i Rol. 14. where the contradiction given by the court ap- 
 pears to go only to the words " fubjigillo" Noy 76. 
 
 Yearb. P. i H. VII. 19.0. 
 
 This officer gives notice to the adverfe party, which prac- 
 tice has come into the place of the fci.fa. ad and. Sachfci.fa. 
 might perhaps (during a recefs) have been made returnable at 
 the next parliament, or feffion of parliament, generally ; ( i Mod. 
 106. Dy. 375. a.) but it feems more reasonable, if the day of 
 the next meeting was known, to mention a day certain, accord- 
 ing to the precedent, (Reg. Brev. 17. b.) and the practice in the 
 king's bench. (3 Black, comm. app. xxv. Att. pr. B. R. vol. ii.) 
 
 P 2 Saund. 224. 
 
 ^ Skin. 523. 3 Sal. 145,6. 
 
 fays
 
 226 Of the civil jurifdiff ton of L E c T . 8 
 
 fays chief juflice r Holt, of the commons: 
 altho it was * declared in the firft year of 
 Henry the fourth, that all judgments ap- 
 pertained to the king and lords, and not to 
 them. 
 
 Selden * obferves, that the lords have 
 power to make a delegation of their jurifdic- 
 tion to a perfon chofen out of themfelves, as 
 a fteward, to judge for them. That moft 
 learned and elaborate compiler fometimes 
 fpeaks unmethodically and promifcuoufly of 
 their civil and criminal judicature. If the 
 Latin quotation, which he adduces, affefts 
 the prefent fubjeft, it only mews, that the 
 lords may, if they pleafe, in civil matters, like 
 as in trials for offences, appoint a fleward to 
 preiide, " qui cum dominis f pirit uattbus et tern- 
 pcralibus per conjifium jujiitiariorum procedat 
 ad error em corrigendum" That instrument 
 however, as well as the cafe of Thomas. 
 Thorpe, and one, that I cited from the year- 
 books, prove how conftantly the judges were 
 
 f Ld. Raym. 15. 2 Salk 510. 
 
 Pryn. ed. Cot. abr. rec. 392. It was not fo declare^ 
 ly the commons, as mentioned Sho. ca. parl. Si. 
 * 3 Seld, 1526. (Wilk. ed.) 
 
 called
 
 L c T . S . the lords in parliament. 227 
 
 called in to give their affiftance, and how great 
 deference was paid to them in the exercife of 
 parliamentary jurifdiclion. 
 
 The caufe is determined by the majority of 
 the lords prefent, however fmall the number, 
 no proxies being allowed, as I before have had 
 occafion to remark. 
 
 As to the judgment itfelf, it may often * 
 happen, that a iimple judgment of affirmance 
 or reverfal will not avail, but that the fame 
 fentence ought to be given, which mould 
 have been pronounced by the inferior court. 
 Thus, in the a&ion of ejectment, the prefcrib- 
 ed judgment, if for the plaintiff, is that he 
 recover his term in the eftate in queftion j if 
 for the defendant, it is formally entered, that 
 the plaintiff take nothing by his writ. If 
 then in this a<ftion a prior judgment is given 
 for the x defendant, which is deemed errone- 
 ous 
 
 * Sho. ca. parl. 57. 4 Mod. 127. Skin. 515. I Sal. 401. 
 403. Carth. 180. 2 Saund. 256,7. Parker againft Wells, 
 Houfe of lords 15 May 1787. 3 Cro. 512. 
 
 * But if the prior judgment, deemed erroneous, be given for 
 the plaintiff, it is fufficient fimply to reverfe it. (Pugh and ano- 
 ther againft Goodtitle on the demife of Bailey. Houfe of lords 
 15 May 1787.) So if judgment be given in the exchequer for 
 the plaintiff, reverfed in the exchequer chamber, and that re- 
 
 Q verfcl
 
 228 Of the civil jur if ditfion of LECT. 8. 
 
 ous by the lords, it is not fufficient, it is not 
 going far enough, merely to reverfe it, but 
 there ought to be added, that the plaintiff re- 
 cover his term, being the judgment which 
 ought originally to have been given. If the 
 lords neglect to make this order, it cannot be 
 fupplied in the court below, but the fuit- 
 or muft again refort to their bar to rectify 
 the omiffion -, which y has been done by mo- 
 tion in parliament before the remitting of the 
 tranfcript of the record back into the king's 
 bench was entered in that court. 
 
 The judgments, which are immediately ex- 
 aminable by writ of error in parliament, are 
 given in the king's bench, or in one of the fe- 
 veral courts of exchequer chamber, mention- 
 ed in a former lecture. If an action be pro- 
 fecuted in the king's bench, by original writ 
 out of chancery, recourfe mutt be had direct- 
 ly to the houfe of lords. But in cafes where 
 
 verfal approved by the lords, it is fufficient, that fuch fecond 
 judgment be affirmed. (Sutton againft Johnitone. Houfe of lords 
 22 May 1787.) Or if judgment below be given for the plaintiff, 
 and deemed right, it need only be affirmed. (Eaft India Com- 
 pany againft Tod. Houfe of lords 20 May 1788.) So if two 
 former judgments concur and are deemed right, they need only 
 be affirmed, but probably difcretionary cofts would be awarded. 
 (Foley againft Burnell and another. Houfe of lords 27 April 
 1789. Sho. ca. parl. no. 4 Mod. 127. 2 Saund. 225.) 
 / Sho. ca. parl. 5 7. 
 
 the
 
 If E c T . 8 . the lords w parliament. 
 
 the ft. 27 Eliz. c. 8. allows the exchequer 
 chamber, thereby created, to interpofe, z it 
 only gives the election to the party thinking 
 himfclf aggrieved, and does not take away the 
 common law method of relief in parliament. 
 Indeed it has been doubted 8 , whether this 
 court of exchequer chamber did not come in - 
 {o the place of parliamentary correction of 
 erroneous judgments : but it is now clearly 
 agreed and fettled to be, if reforted to, an in- 
 termediate tribunal. The court of exche- 
 quer chamber, constituted by the ft. 3 1 E. 
 III. c. 12. has been determined b to be a ne- 
 ceflary ftage between the law lide of the ex- 
 chequer, and the houfe of lords. We may 
 remember, that there is a third court of ex- 
 
 * Sho. ca. parl. 56. 
 
 * 2 Keb. 91. Sho.ca.parl.no. 
 
 b 2 Sal. 511. Sho* ca. par). 56. And writs of error arc 
 
 not to be brought per faltum into the lords' houfe. The king's 
 bench is the general court, through which they muft pafs, from 
 inferior judicatures. But fee, as a particular inftance, the cafe 
 of Harrifon ag.iinft Evans, (6 Br. ca. parl. 181 &c.) where on 
 a judgment in the meriff's court of London, a writ of error 
 was returnable in the court of huttings there, and on the judg- 
 ment of that court a fpecial commiffion of errors was directed 
 to five of the twelve judges, or any two of them, upon whofe 
 judgment a writ of error was brought returnable in parliament. 
 The lords have entertained an appeal from an inferior court of 
 equity, per faltum, and without palling through the chancery. 
 (Dougl. 6.) They have alfo entertained an appeal in a prize 
 caufe from the court offejjlan of Scotland, and reverfed the former 
 fentence. (Hendricks and others againft Cunningham and 
 others. Houfe of lords, 2 May 1783.) 
 
 chequer
 
 2 30 Of the croil jurifdiclicn of LECT. 8. 
 
 chequer chamber, fubfifting by the common 
 law, holden before all the judges of Eng- 
 land, into which caufes may be adjourned 
 before judgment, on account of their great 
 weight and difficulty, and from which alfo a 
 writ of error is returnable in parliament. 
 
 In the c fourteenth year of queen Elizabeth, 
 a writ of error, from the law fide of the chan- 
 cery, was brought in the king's bench, where 
 the prior judgment was reverfed. This cafe, 
 however, and other authorities, being cited 
 before lord keeper North, - he declared, that 
 the d judgments, even on the law fide of his 
 court, were not liable to be reviewed in the 
 king's bench, and that he would grant in- 
 junctions againft all fuch writs of error. Sir 
 William Blackftone e differs from this judicial 
 opinion, which feems to him not well confider- 
 ed. I mall not prefume to arbitrate in this con- 
 troverfy, obferving only that there are f feveral 
 refpectable authorities in confirmation of the 
 lord keeper's doctrine, as well as thofe alleged 
 by the learned commentator in oppofition 
 to it. 
 
 07.315. a. pi. 393. 4lnft. 80. 
 
 * i Vcrn. 131. Eq. ca. abr. 129. e 3 Black, comm. 48: 
 
 f Lamb. Archion.69. Per Choke Yearb. 37 H.VI. 13. b. 
 & i i E. IV. 9. a. r. t. error, pi. 95. i R, A. 745.
 
 1 5 c T . 8. the lords in parliament. 231 
 
 kaftly, as to the common pleas, * it has 
 been fettled, at leaft ever fince the reign of 
 Edward the third, that judgments there given 
 cannot be examined per faltum in the lords' 
 houfe, but muft pafs the king's bepch, and 
 be there previoufly reverfed or affirmed. 
 
 This final refort to parliamentary decifion, 
 t>y writ of error, to revife judgments at law, is 
 of the earlieft antiquity, not owing its origin 
 to any poiitjve ftatu,te, nor determinable to any 
 certain period. Jt feems indeed, by the prin- 
 ciples of our government, hardly capable of 
 reftraint or diminution. The ft. 4 H. IV. 
 c. 23. which was palled to prevent the irre- 
 gular re-examination of judgments given in 
 the king's courts, and which recites, as the 
 grievance to be remedied, that, after fuch 
 judgments, partjes were brought fometimes 
 before the king, fometimes before his council, 
 and fometimes before the parliament, exprefs- 
 ly faves the proceeding by writ of error; 
 which exception refers (not with {landing the 
 former expreffions) to this high tribunal, as 
 well as to inferior judicatures. This judicial 
 fupremacy of the lords was at all times, before 
 
 * 3 Seld. 1525,6. (Wilk.ed.) 
 
 Qj|. and
 
 232 Of the cmll jurifdittlon of L E c T . 8 . 
 
 and iince the patting of that law, alike undif- 
 puted and undoubted. 
 
 II. I am fecondly to fpeak of appeals to 
 parliament from courts of equity -, which 
 practice was introduced much later into our 
 juridical conftitution. 
 
 Near the end of the reign of queen Eliza* 
 beth, an h appeal from a decree in chancery 
 was, upon petition, remitted by her to the 
 twelve judges. Such reference feems, on fe- 
 veral accounts, highly inconvenient : whether 
 it ever was repeated, does not appear. The 
 prefent mode of appeal, however, was, by de- 
 grees, juftly fubftituted in its room. Here the 
 jurifdiction of the lords is more ample and 
 uncircumfcribed in extent, comprehending all. 
 interlocutory orders as well as the final de- 
 cree, and including a power of reforming and 
 modelling the neceflary relief. Of the com- 
 mencement of thefe appeals, the late lord 
 chief baron Gilbert * gives the following ac- 
 count : " Towards k the latter end of king 
 
 fc 3 Bui. 118. J Gilb. chanc. 190, i. 
 
 k Others carry it back to the twenty-firft year of king James 
 the fiift. (Sno.ca. pri. 81.) 
 
 Charles
 
 LECT. 8. the lords in parliament. 233 
 
 Charles the firft, (fays he) the houfe of lords 
 aflerted their jurifdi&ion of hearing appeals 
 from the chancery, which they do upon a 
 paper petition, without any writ directed 
 from the king ; and for this their foundation 
 is, that they are the great court of the king, 
 (referring, I prefume, to the aula regis, and 
 perhaps to the times preceding it) and that 
 therefore the chancery is derived out of it, and 
 by confequence that a petition will bring the 
 caufe and record ! before them. This was 
 long controverted by the commons in the 
 reign of Charles the fecond, but is now pret- 
 ty well fubmitted to, becaufe it has been 
 thought too much, that the chancellor mouM 
 bind the whole property of the kingdom 
 without appeal." The learned judge alludes 
 principally, I apprehend, to the cafe of fir 
 John Fagg m , a member of the houfe of com- 
 mons, againfl whom the lords entertained an 
 appeal from a decree in chancery. The com- 
 mons, after examination, committed the ad- 
 vocates employed. Then they prohibited the 
 refpondent from making his defence at the 
 
 1 The proceedings in a court of equity are now frequently 
 fttled records, in a fenfe lefs proper, than thole had in legal courts 
 ef record. (V. Dougl. 5, 6.) 
 
 88 Grey's debates, vol. iii. & iv. 
 
 lords'
 
 ? 3 4- Of (be crpil jurtfdi&ion of j. E c T . 8, 
 
 lords' bar, and determined the profecuting of 
 fuch appeal to be a breach of privilege. 
 Thefe meafures were foon followed by a re- 
 folution, that whofoever mould folicit, plead, 
 or profecute any appeal againffc any commoner 
 of England, from any court of equity, before 
 the houfe of lords, mould be deemed and 
 taken a betrayer of the rights and liberties of 
 the commons of England. Laftly they voted 
 the prolecutor of the appeal into the cuftody 
 of their ferjeant at arms. This overflowing 
 violence at length fubiided. There was, I 
 believe, no fubfequent contention between the 
 Jioufes on this fubject: and in one cafe of great 
 moment, the commons are faid n exprefsly to 
 have recognifed the judicature claimed. 
 
 I mall mention another ftruggle, in which 
 the lords were afterwards engaged for their 
 equitable jurifdiclion (altho the object of it 
 hath fince been ceded) again ft the lords of 
 Ireland. The judgments of the king's bench 
 there had always been examinable, by writs 
 of error, in the king's bench in England. 
 This feems to have been well eftablifhed in. 
 
 Sho. ca. parl. 81. Yearb, 37. Affize 5. 
 
 practice
 
 *,ECT. 8. the lords in parliament, 235 
 
 practice in the reign of Edward the third, if 
 not much earlier 3 for p authorities are cited 
 of the fifth year of Edward the fecond. Yet 
 * Irim parliaments were frequently convoked, 
 tho r fometimes their chieftains or grandees 
 were fummoned to the Englifh councils. 
 When ! therefore the king's bench in Eng- 
 land, under Henry the fixth, refufed to meddle 
 with a writ of error from the Irim parlia- 
 ment, the reafon feems to have been, that it 
 ought to have been brought hither immedi- 
 ately, paffing by the lords of that kingdom. 
 The * principles, on which writs of error 
 from Ireland are founded, feem fully to au- 
 thorife appeals alfo from the chancery there 
 to the court of parliament of Great Britain : 
 and fuch appeals are faid u to have been efta- 
 blifhed in conftant practice before and at the 
 time when the conteft arofe. This happened, 
 towards the latter end of the laft century, in 
 the cafe of the bifhop of Deny, who had 
 appealed to the lords of Ireland, from a de- 
 cree made in the chancery of that realm. 
 L The lords x of the Englifh parliament refolv- 
 
 F. N. B. 51. i Rol. 17. * 4 Inft. 350. r Ibid. 
 
 * Prynne'a animad. 313, 4. Sho. ca. Parl. 8;. 
 
 * Vau. 402. i Rol. 17. u Sho. ca. parl. 81. 
 
 * Sho. ca. parl. 83. 
 
 ed.
 
 236 Of the civil jur if diet ion of tECT. & 
 
 ed, after great deliberation, that fuch pro- 
 ceedings before the Irifh lords were coram non 
 judice, and confequently null and void. On 
 the other hand, by a y vote pafled many years 
 afterwards, the Iriih lords denied the jurif- 
 didlion claimed in this ifland, adding, that 
 .whoever mould make fuch appeal, mould be 
 deemed an enemy to his country. An end 
 was put to the competition,, for a time, by the 
 ft. 6 G. I. c. 5. which declares, that the houfe 
 of lords in Ireland hath no jurifdiclion to 
 affirm or reverfe any judgment, fentence, or 
 decree given in any court within that king- 
 dom. But this law hath been iince z repeal- 
 ed: and the final judicial power in Ireland, 
 in refpect to courts of law and equity, now 
 refls with the lords of that parliament. 
 
 The appeal from the exchequer, fitting as 
 a court of equity, is immediately to the houfe: 
 of lords , which mode pf proceeding feems 
 quietly to have followed the eftablimment of 
 the jurifdiclion over the chancery. 
 
 y 25 Sept. 1715. ace. to 4 Com. dig. 319. 
 * St. 22 G. 111. c. 53 The whole of this law, includ- 
 ing title, preamble, and words of courfc, is about nine lines. 
 
 o But
 
 LECT. 8. the lords in parliament \ 237 
 
 But the lords * cannot revife a fentence 
 given by the delegates in ecclefiaftical caufes, 
 acting within the fphere of their jurifdiction. 
 For the b ftatute, which conftitutes or declares 
 their authority, ordains, that their determi- 
 nation mall be finally conclufive. This c rule 
 feems not to extend to another court, created 
 by act of parliament, namely that which has 
 cognizance of what are called charitable ufes. 
 For the ftatute d , upon which that new jurif- 
 didtion is founded, only makes the decrees of 
 the commiflioners valid, till they are con- 
 firmed, altered, or vacated by the chancellor : 
 after which, it feems they may be reviewed by 
 the lords in parliament. It is now however 
 the ufual courfe to inforce the due execution 
 of charitable ufes by immediately reforting to 
 the chancery, without proceeding at all be- 
 fore commiflioners authorifed under the fta- 
 tute, according to which modern practice, 
 there is no doubt of the power of appeal to 
 the houfe of lords. 
 
 Delays on writs of error have always been 
 very much difcountenanced by the twelve 
 
 2 Vern. 1 18. b 25 H. VIII. c. 19. c Sho. ca. 
 
 parl. no. 2 Vern. 118. d 43 El. c. 4. 
 
 judges:
 
 Of the civil jurifdittion of LCT. 8. 
 
 judges : and the lords made an ' order to that 
 effe<5l foon after the reiteration. Some years 
 afterwards it was referred to the lords' com- 
 mittees for privileges to confider, whether writs 
 of error and appeals, depending in one feffion, 
 continued in Jiatu quo unto the next : they f 
 made their report, founded on many prece- 
 dents, and judicioufly co-extenfive with the 
 reference, as to faft, " that bufinefTes depend- 
 ing in one parliament, or feffion of parliament, 
 have been continued to the next feffion of the 
 fame parliament, and the proceedings there- 
 upon have remained in the fame ftate, in 
 which they were left when lafl in agitation :" 
 which report was approved by the houfe. 
 Thus it became acknowledged law, that a pro- 
 rogation did not abate a writ of error : and 
 at length it was % by a fubfequent order, efta- 
 
 bliflied, 
 
 * Lords' journ. 13 Dec. 1661. 2 Lev. 93. i Vent. 31. 
 266. See, as to appeals, Mofel. 30. St. ord. hoafe of lords 
 (ed. 1748.) 109. 
 
 f Lords' journ. 29 Mar. 1673. 2 Lev. 93. 
 
 Lords' journ. 19 Mar. 1678. This order is unim- 
 
 peached by any fubfequent refolution. It appears a wife, juft, and 
 falutary meafure. (See the report referred to, and i Rol. 18.) 
 Supposing the words " next parliament" to mean the next 
 feffion of the fame parliament, (which can hardly have been in- 
 variably the cafe) it was plain, the continuance of the proceed, 
 ings had been repeatedly ordered, and therefore it was compe- 
 tent to make it regulam generalem of that high court, as to from 
 j rogations*
 
 LECT. 8. the lords in parliament. 
 
 blifhed, that both writs of error and appeals 
 remain in the fame itate, notwithflanding even 
 a diffolution. 
 
 Lord Hardwicke, with a view to this fu- 
 preme jurifdi&ion, which is the fubject of 
 the prefent difcourfe, hath declared h , that a 
 court holding plea by writ of error or appeal, 
 is to judge by the fame rules as the inferior 
 court, from whence the caufe is brought, mould 
 have obferved. Writs of error therefore are 
 to be determined on principles of law, and 
 without any deviation even from the long 
 eftablifhed forms of legal judgments, where 
 the fentence is not confined to a fimple af- 
 
 rogations. A diffolution is equally in the breaft of the fove* 
 reign ; and in neither cafe is the plaintiff in error in any dew 
 fault, and fo his writ of error ought to remain zfuperfedeas. At 
 the law was before underftood, there was great hardfhip. If a 
 prorogation took place, or if the writ was returnable generally, 
 or if on a day certain, and a term intervened, execution might 
 iflue. (2 Lev. 93. I Vent. 31. Noy 76.) The fafeft way, 
 before thefe refolutions of the lords, was to make the writs re- 
 turnable " fine Jtlatione," (2 Saund. 214, 229) which two writs 
 there recited were tefted 3 May and 22 June, 22 of C. II. the 
 parliament Handing prorogued (or. adjourned, as it was then 
 called, by the king's directions) for feveral months. But after 
 thefe refolutions, a writ of error, tefted 8 May 6 of W. & M. 
 was (conformably nearly to prefent practice) made returnable 
 17 Sept. following, being the day next before the prorogation 
 day. (Sho. ca. parl. 12.) 
 * I Vex. 207. 
 
 firmance
 
 240 Of the civil jurifdittion of LECT. 8. 
 
 firmance or reverfal of the prior judgment* 
 In appeals there is a latitude given for model- 
 ling the relief, or for granting it conditionally, 
 in order to effectuate the ends of juflice, and 
 to anfwer the particular exigencies of a com- 
 plicated cafe. And here thofe maxims of 
 municipal equity are regarded, which ought to 
 have guided the court appealed from, and 
 which for the moil part have been fanctioned 
 by judicial precedents of binding authority 
 and control. In like manner, before the court 
 of juftice feat fell happily into difufe, if any 
 fentence there pronounced had finally come 
 before the houfe of lords, it was, I prefume, 
 to be debated on the fore ft laws, tho differing 
 perhaps in few particulars from thofe of ge- 
 neral extent. Yet here, for inftance, that 
 maxim mufl have been received, that a grant 
 made of a privilege to all inhabiting free- 
 holders within the diftrict, or to other de- 
 fcriptions of perfons therein, tho not incor- 
 porated 1 , is good and effectual, according to 
 the laws of the foreft. So where k the jurif- 
 
 r, . 
 
 1 4 Inft. 290. 297.- But the king's courts of comraom 
 law are not bound to take notice of the law or cuftom of th 
 foreft, unlefs it be fpecially pleaded. (2 Wiif. 104.) 
 
 k 2 Saund. 228. See Burr. 777. 
 
 dictiorir
 
 t E c T . 8 i the lords in parliament* 241 
 
 diction of the lords in parliament was the 
 dernier refort in a caufe originally commenced 
 in the court of huttings in London, the local 
 and fpecial cuftoms of that city were made 
 the fubject of difcuflion. According to the 
 fame idea, appeals from the courts of feffion 
 in Scotland, (pf which judicature a new and 
 1 extend ve field is opened by the union) muft 
 be adjudged by the rules of the Scotch law. 
 Here if we reflect on the various and im- 
 portant duties which the law expects to be 
 difcharged by this illuftrious order j if we re- 
 member that thofe who exercife fuch com- 
 plex and final jurifdiction, are alfo legiflators, 
 and fupreme counfellors in affairs of flate, we 
 fhall not think them too highly compenfated 
 by all the privilege and preheminence which 
 they enjoy. 
 
 In all parts of their civil judicature, the 
 lords now exercife their difcretion as to the 
 cofts attending the litigation. A confiderable 
 fpecific fum is fometimes awarded to be paid 
 
 1 In 1786 and 1787, and in general, the Scotch appeals are 
 far more numerous than thofe from the Englilh courts of law 
 and equity. 
 
 R by
 
 242 Of the civil jurifdict ion of LECT. 
 
 by the profecutor of a grofsly frivolous appeal, 
 For not only the expence and detriment to 
 the adverfe party are proper objects of confi- 
 deration, but allb the audacity and pernicious 
 confequence of attempting to make the 
 guides and guardians of public fafety and prof- 
 perity mere inftruments of litigious delay, 
 injuftice, and oppreflion. 
 
 The wifdom, and the multitude, of deci- 
 fions that are pronounced in the courfe of a 
 few feffions, may incline us to regret the want 
 of fome authorifed mode of adducing them 
 genuine to public attention. The printed 
 flatements of the cafes, which are drawn up 
 and figned by advocates on each lide, often 
 fugged reafons for affirming or reverfing the 
 prior adjudication, which in efFect have no 
 influence on the decifion. Both the deter- 
 minations and the grounds thereof mould be 
 fully and certainly known. By an inftitution 
 fimilar to what is here meant, the contents of 
 the yearbooks have been authentically tranf- 
 mitted through a feries of barbarous ages, 
 acquainted with little elfe but Norman 
 French, and intricate fubtleties of law. 
 More worthy are parliamentary decifion s of 
 x true
 
 L E c T . 8 . the lords In parliament* 243 
 
 + 
 
 true and copious narration, and more necef- 
 fary is the knowledge of judgments pafled in 
 that court, which is the oracle of jurifpru- 
 dence, and to which all inferior tribunals 
 muft conform* 
 
 R 2 LEG-
 
 2 44 Of civil magifirate$ t L E c T . 
 
 Of civil magiftrates, and officers exercifmg fub- 
 ordinate authority under tbefupreme executive 
 power of the ft ate. 
 
 HAVING, in the five preceding lec- 
 tures, confidered with attentivenefs the 
 various diftributions of judicial magiftracy, 
 as well fubordinate as fupreme, to the dif- 
 ferent tribunals eftablimed by the laws of 
 England, I proceed to treat of the delegation 
 of executive power. For the law recognizes 
 a multitude of civil officers and magiftrates, 
 by whom the executive departments of go- 
 vernment are carried on, and who, in their 
 feveral ftations, contribute to the order and 
 welfare of fociety. Such, firft, are the great of- 
 ficers of flate ; fecondly, civil officers for the 
 adminiftration of juftice in counties and other 
 diftri&s; and laflly, fuch, whofe functions are 
 confined to the affairs of a particular parifli 
 or town (hip maintaining its own poor inha- 
 bitants.
 
 LECT. 9. and officers &c. 245 
 
 bitants. Of the two former forts I {hall make 
 fome mention in the prefent difcourfe; pa- 
 rochial officers will be confidered in the next 
 lecture. 
 
 The king has, originally, the appointment 
 to offices having authority annexed to them, 
 except fuch as are elective; and then the 
 matter is tranfadled by virtue of a writ run- 
 ning in his name, or in a court deriving its 
 jurifdiction from him. An old * ftatute, 
 (which fir Edward Coke b calls a law wor- 
 thy to be written in letters of gold, but more 
 worthy to be put in due execution) provides 
 againfl offices being granted corruptly, or par- 
 tially, or to fuch as purfue for them. But a 
 later c act is levelled with explicit fanctions 
 againfl the fale of offices, firft mentioning fuch 
 as concern the adminiflration of juflice, 
 
 It is a general and wife rule, that a judge 
 cannot conflitute a deputy, or delegate his 
 authority to another, For he cannot tranf- 
 fer his own mental qualifications, requifite 
 for the interpretation of laws, to fuch fubfti- 
 
 a 12 R. II. c. 2. ' i Infh 234. a. e 5 & 6 
 
 p. VI. c. 16. 
 
 R 3 tute.
 
 246 Of civil magtft rates, L E c T . 9 . 
 
 tute. Indeed whore a judicial office is to be 
 holden exprefsly " per fe ve/^ deputatum," or 
 where it is warranted by antient cuftom, pre- 
 fcription, or charter, a fubftitute may be ap- 
 pointed. Thus the d recorderfhip of Lon- 
 don, and many other cities and towns, and 
 the offices of e earl conftable and f earl mar T 
 fhal, may be difcharged by deputy. The 
 general rule however is to the contrary. But 
 in z minifterial offices, of the kind, where little 
 more than fidelity and attention are necefiary 
 to the due difcharge of them, the reafoning 
 and the rule do not equally prevail. If we con- 
 iider the fupreme executive magiflrate him- 
 felf, we fee all the affairs of regal government 
 carried on by his authority and in his name, 
 but comparatively few of them by his per- 
 fonal agency and intervention. In like man- 
 ner, thofe who, under him, are inverted with 
 any kind of minifterial power, may h , ih^gene- 
 ral, perform fuch functions by properly com- 
 miffioned deputies. Hence many offices l are 
 grantable to women, and to infants of an 
 early age j and the fame fingle office may be 
 
 d i Lev. 76. e 4 Inft. 128. f 4 Inft. 126. 
 
 See Cald. 252 262. * 3 Mod. 150. 
 
 1 Cal. on fewers, 252, 3. 2 Rol. abr. 152, 3, 4. n Co. 
 3 b. 4 a. 
 
 conferred
 
 l E c T . 9 . and officers ef c. 2 47 
 
 conferred at the fame time on a plurality of 
 perfons, or beftowed in reverfion. Where J 
 a regular deputy may be, and is, appointed, 
 he hath in general the full power of his prin- 
 cipal, and cannot regularly be retrained to 
 the exercife of a particular branch of autho- 
 rity. The k fuperior, it is faid, mall anfwer 
 for the conduct of his fubftitute -, but not fo 
 as to induce the forfeiture of an office of in^ 
 heritance : for l all fuch offices of inheritance, 
 we may obferve, may be difcharged by proper 
 deputies. 
 
 I. After thefe more general obfervations, 
 I now proceed to make fome mention of the 
 great officers of ftate. 
 
 The lord high chancellor, who moil re r 
 quired our confideration in this courfe of ju- 
 ridical inquiries, hath been already treated of. 
 The occafional creation of a lord high fteward, 
 who is (now at leaft) intirely a judicial ma- 
 giflrate, I mall have an opportunity to men- 
 fion, in fpeaking of the trials of lords before 
 
 J i Sal. 95. k z Inft. 191. 466. i 9 Co. 48. b. 
 R 4 him $
 
 248 Of civil magljlrates, L E c T . 9, 
 
 him; only obferving here, that m this great 
 office, which fubfifted before the Norman 
 conqueft, came by hereditary defcent to Henry 
 of Bolingbroke, and was united with royalty 
 in his perfon. It hath in no fubfequent age 
 been granted, except pro hac 'vice, or confined 
 to the proceedings on a particular indictment. 
 For it has been thought too undefined, too 
 general, and too dangerous an excefs of power, 
 being to fuperintend and regulate, immediately 
 under the king, the whole realm of England, 
 and all the difpenfers of the laws within the 
 fame, both in times of war and peace. 
 
 The offices alfo of lord high treafurer and 
 lord high admiral are of very eminent dignity 
 and importance. The former has a great 
 portion of judicial authority, being nomi- 
 nated in many ftatutes to hear and determine 
 certain caufes and appeals, jointly with the 
 chancellor and others. He n was antiently 
 conftituted by the delivery of a golden key, 
 of later times by the delivery of a white frafF: 
 and he has granted to him the treafury of the 
 exchequer by letters patent, which appears 
 
 m 4lnft. 58, 59. n 4lnft. 104,5. 
 
 Mad. hift, exch. c. ii. 10. & c. xxi. 2. 
 
 to
 
 LECT.9* and officers &c, 249 
 
 to be a diflinft office, and not always vefte4 
 in the fame hands. His oath much re- 
 fembles that taken by the lord chancellor. It 
 feems p , in fome of the early reigns, the ma- 
 nagement of the royal treafure was chiefly con- 
 ducted by the chief jufticier. The judicial 
 power of the admiralty hath been already dif- 
 cufled. But the fuperintendency and control 
 of the treafurer in matters of revenue, and 
 of the admiral over the royal navy, muft be 
 regulated, for the moft part, by occafional 
 events and emergencies, and cannot be defined 
 as a fubject of pofitive and permanent law. 
 Each of thefe high offices, fince the acceffion 
 of the prefent royal family, have been dif- 
 charged by feveral commiffioners. 
 
 The offices of lord prefident of the coun-p 
 cil, and lord privy feal, are of very high anti- 
 quity, and confer a right of precedence next 
 to the chancellor and treafurer: for the high 
 fteward, being only occaiionally created, is 
 not mentioned in the * ftatuts that regulates 
 this matter. The more peculiar province of 
 the lord prefident feems to bs to attend his 
 
 t Mjd. hift. exch. c. ii. 10. 
 
 31 H. VIII. c. 10. 4 Inft. 59. marg. 
 
 fovereign,
 
 250 Of civil magiftrates, L E c T . 9, 
 
 fovereign, and report the ftate of affairs agi- 
 tated at the council table. The lord privy 
 feal's. dignity and importance, even in the early 
 reigns, may be judged of by that paffage of 
 the old Latin memorialift, quoted in a former 
 r lecture, where this officer alone, of all the 
 keepers of the royal feals, is declared inde- 
 pendent of the lord chancellor's authority, 
 He caufes to be authenticated, under the in- 
 flrument permitted to his cuftody, fuch acts 
 of the king as do not require the great 
 feal. The diftindtion between real and per- 
 ibnal property is here confpicuoufly marked, 
 as well as in other parts of the law j for s any 
 intereft in crown lands, and all inheritances 
 whatfoever, muft be conveyed by grant under 
 the great feal ; but the king may under his 
 privy feal difpofe of any perfonal chattel. It 
 was alfo * provided, at the very dawn of our 
 prefent juridical fyflem, that no writ, touch- 
 ing the common law, mould iflue under the 
 privy feal. 
 
 As to the fecretaries of flate, the regu- 
 lar employment (at leaft of one of them) in 
 
 Ant. left. VJ. Mo. 476. 
 
 Art. fup. eart. 28. E. I. c. 6. 
 
 great
 
 X,ECT.9 and officers &c. 251 
 
 great meafure confifts in preparing difpatchee 
 to foreign courts, and inftructions to Britifh. 
 ambafladors there relident. It is very obvious 
 however that a fmall part of their duty, in 
 regard either to foreign or domeflic occur- 
 rences, and whether we confider them as ad- 
 vifers or inftruments, can be the fubject of 
 legal inquiry or difcuffion. They u have 
 however a power of commitment for trea- 
 fon and feditious libels againfl the govern- 
 ment, but not for all crimes. The x war- 
 rants iflued by them, to take fuppofed delin- 
 quents and their papers into cuftody, are 
 illegal, both where no perfon in particular is 
 pointed out, as if it be againft the authors of 
 a libel, without faying who fuch authors are, 
 and alfo where, tho fome perfon is named, 
 there is to be a general feizure. 
 
 The offices relating to the revenue, and 
 other departments, are very numerous, but 
 afford little room for legal obfervations. As 
 to the officers of the royal houfehold, and all 
 the appendages to the pomp and grandeur of 
 a court, thefe alfo, tho necefTary to fupport 
 
 2 Wilf. 288. 290. 2 Hawk. 117. 
 
 * 2 Wilf. 205. 250. 275 &c. Burr. 1742 Sec. 
 
 the
 
 2 5 2 ^f wil magiftrates, L E c T . 9. 
 
 the majeSty of kingly government, are no 
 great objects of legal notice : their rank and 
 precedence, the distinct natures and emolu- 
 ments of their refpective employments, can- 
 not with propriety engage our attention in a. 
 courfe of profeSTional fludies. 
 
 II. I come, therefore, fecondly, to fpeak of 
 civil officers for the administration of juStice 
 in counties and other districts. Of thefe the 
 principal is the Sheriff, a Station of immemo- 
 rial antiquity in the constitution. His ap- 
 pointment and his courts, confidering him as 
 a judicial magistrate, have been before fpoken 
 of : this part of his character is much effaced 
 by time. JBut he is alfo the chief ministerial, 
 or executive officer in the county. For, in 
 general, all the king's writs or mandates, to 
 be executed within {he county, are directed to 
 him, whether they relate tp civil or criminal 
 procefs, or to elections. He has y therefore 
 the cuStody of the gaols within his county; 
 and if z he allows a prifoner to go at large up- 
 on bail, where it ought to be denied, he is, 
 
 * 2 Hawk, c. 16. 6. z 2 Hawk, c. 15. 7 &c. 
 
 punifhable,
 
 . and officers &c. 253 
 
 punimable. He is alfo * amenable to juftice 
 for refuting to execute a writ,' for doing it ei- 
 ther ineffectually or oppreffively, or making a 
 falfe return to it. If he acts where he is a b 
 party concerned in in tereft, the proceeding will 
 be deemed erroneous and void. By a very 
 antient c ftatute, the meriff's office' was to be 
 difcharged gratuitoufly : but fubfequent laws d 
 have allowed him to take fees. He is bound 
 by his oath to be e careful of the king's rights 
 and dues, and to render an account thereof in 
 the exchequer. 
 
 The fheriff had always the power of appoint- 
 ing a deputy : at leaft, there is f mention of 
 the underfherifF fo early as in the third 
 year of Edward the firft : befides whom, all 
 the inferior minifters, who execute writs and 
 procefs, commonly called bailiffs and meriff's 
 officers, and the keepers of gaols and prifons, 
 
 2 Hawk. 142, 3. b Mo. 547. 
 
 c Weftm. I. 3 E. I. c. 26. 
 
 a 23 H. VI. c. 9. & 28. [or 29.] El. c. 4. 
 
 *St. 3 G. I. c. 15. 18. 
 
 r St. Wcftm. I. 3 E. I. c. 15. But the fheriff is anfwer- 
 
 able for the official adb of his underflieriff and bailiffs ; (2 Black. 
 832. Dougl. 40.) and the fheriff only; (Cowp. 403.) but this 
 does not extend to the bailiffs of exempt liberties. (2 Durnf. 
 & Eaft, 5. 
 
 are
 
 2 54 U J cteujl magnates i L E c T . 9 fl 
 
 are but fubordinate affiftants to this great ex- 
 ecutive magiftrate of the county. Laftly, 
 there is one branch of his authority, by virtue 
 of which, we frequently fee him, in hiftory, 
 at the head of a mighty armament, I mean 
 8 his right of fummoning and railing the poffe 
 comitatus or power of the county ; which he 
 may ftill exercife, as well to overcome any re- 
 fiftance to his own lawful difcharge of duty, 
 as to quell any other riot or infurreftion. 
 
 The coroner has been before fpoken of in 
 his judicial capacity. He is alfo a minifterial 
 officer, as holding the place of the fherifF, and 
 h having writs directed to him to be executed 
 in any fuit, where fuch fherifF, by reafon of 
 confariguinity with one of the parties litigant, 
 or other fubftantial reafon, is liable to be fuf- 
 pected of unfairnefs and partiality. In the 
 fame reign, that the office of fherifF ceafed to 
 be elective, the right of the freeholders to 
 cleft the coroners of each county was recog- 
 nized in parliament '. Coroners k indeed are 
 removeable, for mifbehaviour, by the lord 
 
 \ Hawk. 158. 161. 2 Inft. 193. 
 
 h PI. 74 &c. 4 Inft, 271. * St. 28 E, III. -c. 6. 
 
 * 5 Atk. 184. 
 
 chancellor ;
 
 JLECT. 9. and officers &c. 255 
 
 chancellor; but he cannot appoint others in 
 their room ; the choice of thofe, who are to 
 fupply the place of the delinquents, muft be 
 made by a majority of the freeholders. 
 
 I muft next defcend to officers >f an infe- 
 rior clafs, namely, conftables ; who are of two 
 forts, high, and petty; the former ordained 
 to keep the peace and to execute procefs 
 throughout the diftridts called hundreds ; the 
 latter exercifing authority in towns. High 
 conftables are l faid to be firft ordained by the 
 m ftatute of Winchefter, in which cafe they 
 would have no more power, than that act ex- 
 prefsly gave them ; for then they could not 
 claim any by prefcription, like an officer fub- 
 fifting at common law. Others", however, 
 deny that their authority was created, affirm- 
 ing, that it was only enlarged by that ftatute, 
 and that their office fubfifted at common law. 
 The petty conftable is an officer at common 
 law. But fir William Blackftone p divides 
 his office, part of which, he fays, is as an- 
 tient as the time of Alfred, and refers the 
 
 1 4 Inft. 267. i Black, comm. 355. 
 
 13 E. I. ft. 2. c. 6. n i Sal. 175. 381. 
 
 4 Inft. 265. 267. f i Black, comm. 356. 
 
 character
 
 2 5 ^ Q/" "^ magiftrztes* L E CT . gv 
 
 character of conftable merely to the reign of 
 Edward the third. Spelman q indeed, whom 
 he cites, mentions it, as a report, that petty 
 conftables were instituted about that age in 
 aid of the high conftable. He adds, how- 
 ever, his own opinion, that they were of ear- 
 lier origin, and gives as a reafon, that they 
 are fpoken of as officers well known, in a. 
 r ftatute of the fifth year of Edward the third. 
 It feems certain, that thofe whom we now call 
 conftables, both high and petty, derived that 
 appellation at or after the ftatute of Winchefter. 
 For tho that law directs, that in every hun- 
 dred or franchife two conftables fliall be 
 chofen, and in a preceding s chapter had or- 
 dained in what manner the night-watch was 
 to be kept, yet flich tafk is not impofed V as 
 fir William Blackftone feems to imagine, on 
 thefe officers, not perfonally or pofitively u at 
 
 leaft; 
 
 < 01.148. ' 5 E. III. c. 14. C.4. 
 
 1 It is impliedly, perhaps, impofed on them by the fubfe- 
 quent ft. 5 E. III. c. 14. 
 
 u The words in the ftatute " fuitet de veilles" tranflated, 
 " fuits of towns," may mean, " the fuit or fervice of watching,'* 
 or " the fucceffive turns of watching ;" as much as to fay, de- 
 faults made by thofe whofe turn it was to watch. For the for- 
 mer tranflation feems to have no Cgnification ; and in the fame 
 ftatute, (c. 4.) veilk is ufed for watch, and vile for town. The 
 bad tranflation of our antient ftatutes is remarked, (Tuck, on 
 
 gov.
 
 LECT.9- and officers &c. 257 
 
 leaft - y but their duty is defcribed to be, to 
 make the view of armour, and to prefent cer- 
 tain defaults to juftices affigned, who were 
 to tranfmit them to the king in parliament. 
 Such are the conftables mentioned in that 
 antique ftatute. The conclufion feems to be, 
 that the office of thofe, who now bear the name, 
 in fubftance and effecl:, fubfifted from imme- 
 morial antiquity in our laws, fo as to leave no 
 room for the objection, that their authority is 
 a. new power, created by ftatute, within time 
 of legal memory, and to be conftrued with 
 ftriclnefs. 
 
 The juftices x at feffions have now the right 
 of electing high conftables, and of removing 
 them, where neceflity requires it. The ap- 
 pointment of petty conftables is, regularly, 
 tranfa&ed r in the court leet, or fheriff's 
 tourn. The z feffions cannot difcharge pet- 
 ty conftables fo appointed, except they have 
 ferved a year, which muft be part of the ad- 
 judication on record. But in cafe of death, 
 
 gov. 341. &c. n.) and of this ftatute in particular. (Barr. on 
 ant. flat. 133.) 
 
 * i Bui. 174. y 4lnft. 265. 
 
 * St. 13 & 14 C. II. c. 12. 15. Str. 798. 1050. Rep. 
 B. R. temp. Hardw, 282, 3,4. 
 
 B or
 
 2 5^ Of civil magijlrates, LECT. 9. 
 
 or removal out of the parifh, that court may 
 appoint new ones, expfeffing fuch appoint- 
 ment to be, until the lord of the manor or 
 franchife mall hold a leet. 
 
 Such are the points, in which thefe two 
 officers are diftinguimable ; their duties and 
 their power are much the fame ; but thofe of 
 the petty conftable, or conflable of the town, 
 or vill, are, from the nature of the thing, 
 more frequently called forth into action. 
 Their grand employment is to keep ward by 
 day, and watch by night, by themfelves and 
 their a deputies, for prefervation of the peace, 
 and apprehending thofe who break it. This 
 transferring to them of the keeping of watch 
 and ward, and their general authority as 
 peace officers, feems to depend on a b flatute 
 before referred to, by which the conflables of 
 towns are impowered and required to arrefl 
 fufpicious perfons by day and by night. If 
 
 * The power of appointing a deputy depends on the office of 
 conftable's being of the minifterial, not of the judicial, kind. 
 (2 Hawk. 62. with the notes and additions. Cald. 252 262.) 
 The billeting offoldiers by conflables has been adjudged a mi- 
 nifterial function. For every adl, where the judgment is at all 
 exercifed, is not a judicial aft. A judicial act generally fup- 
 pofes fome matter in litigation. (4 Burr. 1264.) 
 
 > 5 E. III. c. 14. 
 
 the
 
 LECT. 9. and officers & C* 259 
 
 the peace be broken in the conflable's view, 
 he may arrefl the wrong-doers, and bring 
 them before a juflice, er, if it be in the night, 
 may confine them in the flocks, or other 
 place of cuflody, for a reafonable time, till he 
 can bring them before fuch judicial magif- 
 trate. He c may alfo juflify the breaking 
 open of a honfe* having firfl fignified the 
 caufe of his coming, where an affray is made 
 therein in his view or hearing, or where thofe 
 who have made an affray in his prefence, fly 
 to fuch houfe, and are immediately purfued 
 thither, and the officer is not fuffered to en- 
 ter, in order to fupprefs the affray in the 
 former cafe, and in the other to apprehend 
 the aifrayers. There is an inflance d in one 
 of our reporters, where a man had expofed 
 an infant two months old in a church, and 
 the conflable imprifoned him, till he agreed 
 to take it back, and it was adjudged a good 
 juftification of fuch imprifonment, for the 
 treatment of the child rhanifefled a felonious 
 intention. But the conflable cannot imprifon 
 without a warrant for an affray not made in 
 his view. Where e he takes any one into 
 
 & ." .-- , . t 
 
 2 Hawk. 86,.87. * Mo. 284. Sav. 97, 98. 
 
 S a cuflody
 
 2 6 o Of civil magiftrates, L E e T . 9 . 
 
 cuftody in the day-time, he ought without de- 
 lay to carry. him before a juftice: and he 
 cannot imprifon, by way of punimment, for 
 opprobrious language, ill behaviour, or af- 
 faulting him, tho in the execution of his 
 office. 
 
 Conftables f are officers to juftices, for ex- 
 ecuting their warrants and procefs, as fheriffs 
 and their fubordinate minifters are to the fu- 
 perior courts. The duties of conftables are 
 increafed likewife by feveral ftatutes rekting 
 to the militia, and other provifions : and 
 fometimes they may ad: in the furtherance of 
 merely civil juftice, oppofed'to criminal, as by 
 the * ftatute, which enables the fale of goods, 
 diftrained for rent. Conftables omitting to 
 apprehend offenders, vagrants, and diforderly 
 perfons, are punimable by poiitive h acts of 
 parliament. 
 
 If a man, regularly appointed conftable, re- 
 fufes to take upon him the office, he is in- 
 dictable and punimable, unlefs fpecially privi- 
 leged from fuch burden. Thefe exemptions 4 
 
 1 1 Sal. 175. zW.-&M. c. 5. "St. 7 J.I; 
 
 c. 4. 5. 17 G. II. c. 5. f 5. * 2 Hawk. 63. 
 
 do
 
 LECT. 9. and officers &c. 261 
 
 do not extend very low beneath nobility and 
 members of parliament, the general reafon of 
 which is the power of acting by deputy. 
 However, all k practitioners of the law are in- 
 cluded among the perfons exempted from this 
 charge, and are intitled to a writ of privilege, 
 or rule of court, to be exonerated from the 
 appointment. 
 
 The legal fitnefs for this office is refolved 
 by fir Edward Coke ! into three points ; firft, 
 integrity, to execute it faithfully, without ma- 
 lice, affection, or partiality; fecondly, fkill to 
 know what ought to be done ; and thirdly, 
 ability, thereby meaning to exclude both cor- 
 poral infirmity, and indigent circumftances, 
 either of which defects might prevent the 
 proper difcharge of the duties of this impor- 
 tant plebeian magiilracy. 
 
 * 3 Cro. 389: i 8 Co. 41. b. 
 
 83 LEG-
 
 262 Of the officers of LECT. 10, 
 
 LECTURE X, 
 
 Of the officers of parifoes and townjbipi 
 
 IN the prefent lecture I propofe ta treat 
 of civil officers, whofe functions are con- 
 fined to the affairs of a particular parifh, or 
 townihip, maintaining its own poor inhabi- 
 tants. Thefe may be considered as the moft 
 fubaltern perfons in any kind of authority, 
 and will be the laft objects of our inquiries, 
 concerning the diftribution of executive 
 power. Such are, firft, furveyors of the high- 
 ways -, fecondly, churchwardens j and thirdly, 
 overfeers of the poor. 
 
 I. Surveyors of the highways owe their 
 origin to the ftatute 2 & 3 Ph. & M. c. 8 ; by 
 which two perfons of every parilh are to be 
 fo conftituted -, but the appointments are now 
 made for each refpeclive townfhip. 
 
 Every
 
 L E C T . 10. parijkes and townfoips. 263 
 
 Every * parifh is bound to keep its high- 
 ways in repair : and for neglect of this duty, 
 the inhabitants, as a general body, (tho not 
 in law a b corporation) are indictable. In 
 fuch indictment none are diftinctly named : 
 but the indictment, after defcribing the high- 
 way and its ruinous and dangerous condition, 
 adds, that the inhabitants ought to repair it, 
 which is the general inference of the law. 
 This c charge, however, may lie, and the in- 
 habitants may accordingly plead upon record, 
 (for they cannot take advantage of it upon 
 the general ifTue of not guilty) that fome in- 
 dividual, or fome corporation aggregate, is 
 bound to perform fuch repairs, with this dif- 
 tinction, that the obligation can be impofed on 
 an individual by fpecial reafon only, as the 
 tenure of his eftate; but if- the corporation 
 hath been accuftomed merely to keep a road 
 in proper condition, this will be fuuicient to 
 continue the burden on them and their fuc- 
 cefTors. Still the inhabitants of the parifh - 
 are not exempt from the charge of repairing 
 
 ee z Durnf. & Eaft 106. 
 
 b i Mod. 194. But it fccms they arc fo far a corpora- 
 tion, as to be competent to make a bylaw lor the purpofe of re- 
 pairing highways. (Ibid v ) 
 
 c i Hawk. 2C2, 3. 
 
 S 4 by
 
 264 Of the officers of LECT. 10, 
 
 by virtue of the feveral acts, which have from 
 time to time been pafled for the regulation of 
 turnpike roads, either general or fpecial ; for 
 fuch acts are but in aid and addition to the 
 provifions of the comrnon law on this fub- 
 ject. 
 
 Many of our antient law books are prolix 
 in, fpeaking of various kinds of ways. It may 
 be fufficient to remark here, that d what fhall 
 be determined a private way, and what a 
 highway, feems to depend entirely on ufage, 
 and common reputation. The " king has 
 only paffage in the highway for himfelf and 
 his fubjedts. Of the right to trees growing 
 {here, I ihall fpeak f hereafter. 
 
 The feveral laws relating to the highways 
 are explained, amended, and reduced into one 
 act, namely 13 G. III. ^78; and thofe relating 
 to turnpike roads are in like manner confo- 
 Jidated into the 13 G. III. c. 845 but the 
 latter of thefe has received many alterations 
 by fubfequent ftatutes, viz. 14 G. III. c. 14. 
 36. 57. & 82. 16 G. III. c. 39. & 44. 17 
 G. III. c. 16. j.8 G. III. c. 28. & 63, 
 
 * i Vent. 189. ? i R. A. 392. * Left. XX. 
 
 &2I
 
 t E c T . i o. parijhes and town/hips. 265 
 
 & 2i G. III. c. 20. The appointment of 
 furveyors, and their duty, together with many 
 other particulars, are now regulated by thefe 
 ftatutes, with elaborate and minute exadlnefs. 
 Thefe are the texts which muft be reforted 
 to for certainty and precifion $ if it were pof- 
 fible to abridge them into a moderate com- 
 pafs, it would make a very unpleafing and 
 unprofitable detail. 
 
 As to bridges in highways, fir William 
 Blackftone obferves g , that the repair of them 
 js in great meafure devolved upon the coun- 
 ty at large, by the ft. 22. H. VIII. c. 5 h . 
 This aft, however, leaves nothing to impli- 
 cation or ambiguity, but is very exprefs, that 
 the inhabitants of every county, riding, city, 
 or town corporate, mail repair the public 
 bridges lying, or fo much of fuch bridges as 
 lie, within their refpective precincts. There- 
 fore, fince the flatute, it is fufficient, on an 
 indictment, for the profecutors to fhew that 
 the bridge in queftion is a public conve- 
 nience, and its iituation within the county, 
 
 * Three hundred feet of the highway at each end are to be 
 repaired in like manner. 9, 
 
 * 1 Black, ccmm. 357, 
 
 riding,
 
 266 Of the officers of LECT. 10, 
 
 riding, city, or town corporate, the inhabitants 
 whereof are fued, and it refts on fuch defend- 
 ants to prove their difcharge. Even before 
 the paffing of this law, if no perfon could be 
 fpecially charged, the inhabitants of the 
 county were bound to keep public bridges 
 in repair. On the other hand, fince the paf- 
 iing thereof, both individuals and k corpora- 
 tions may be liable to fuch duty ; the former 
 for fome fpecial reafon, as by the particular 
 1 tenure of lands of fufficient value ; the latter 
 by cuftom or prefcription only, without the 
 neceffity of alleging the caufe, or reciprocal 
 benefit. But if a man have m lands on both 
 fides of an antient bridge -, or " if for public 
 convenience he build a new bridge, or a private 
 one which afterwards becomes of general uti- 
 
 1 An inhabitant may be a witnefs at the trial concerning 
 decayed bridges or highways, (St. i. A. ft. I. c. 18. 13.) and 
 thjs, it feems, was admitted before that law. (i Vent. 351. 
 2 Show. 47.) 
 
 k Hawkins fpeaks (i Hawk. 221) of a corporation aggre- 
 gate ; but if the ufage be immemorial, it feems it may bind a 
 corporation fole, tho not natural perfons. (2 Inft. 700.) 
 
 1 See 2 Inft. 700. j Sal. 358. m 2 Inft. 700. 
 
 r 2 Black, rep. 685. Burr. 2594. i Sal. 359. 6 Mod. 307 : 
 in which laft book it is laid down, that the inhabitants of a 
 county cannot, of their own authority and without aft of parlia- 
 ment, change a bridge or highway from one place to another. 
 But a general power for diverting highways, &c. is provided by 
 ft. 13 G. HI. 0.73. 1 622. 
 
 lity,
 
 L E c T . I o . parijhes and town/trips, 267 
 
 lity, he will not in either cafe, but the coun- 
 ty will, be legally liable to repair it. So alfo 
 where a foot bridge was converted into one 
 for horfes and carriages, this being proved to 
 be a public convenience, it was adjudged, that 
 the charges of repair would lie on the inha- 
 bitants of the county. 
 
 II. The parochial officers, whom I am next 
 to treat of, are churchwardens. By the eigh- 
 ty-ninth canon of thofe made in 1 603, church- 
 wardens are to be chofen by the joint con- 
 fent of the minifter and parishioners ; and if 
 they cannot agree upon fuch choice, then one 
 by the rninifter, and the other by the pari- 
 fhioners. But a p cuftom for the parifhioners 
 to elecl: both fhall prevail : for the q convoca- 
 tion had no'authority to make canons againft 
 the pofitive law and ttfage of the realm. 
 Peers r , members of parliament, clergymen, 
 perfons engaged in the profeffion of the law, 
 and all who do not " refide within the parifli, 
 
 are 
 
 2 Black, rep. 685. Burr. 2594. 
 
 P Gibl. cod. t. ix. .15. 2 R. A. 287. 
 
 * Godolph. rcpcrt. can. 162. (3^ ed.) 
 
 * Burn's eccl. law, t. churchwardens. 
 
 Tivt reafon why nonrefidents arc exempted, tho they oc- 
 
 cupy
 
 268 Of the officers of LECT. 10. 
 
 are exempted from the neceffity of ferving 
 this office : but others', unprivileged, proper- 
 ly appointed and refufing to act, are liable to 
 be excommunicated. 
 
 Great u part of the duty of the antient 
 queflmen, or teftes fynodaks, who were ap- 
 pointed by the bifhop to prefent heretics, 
 and others liable to ecclefiaflical profecution, 
 is devolved upon the churchwardens, but this 
 branch of their office is fallen into almoft to- 
 tal neglect. By feveral ftatutes, churchwar- 
 dens have a petty jurifdiction in regard to 
 hawkers and pedlars, weights and meafures, 
 and other matters of trivial confederation. 
 But their peculiar province, as their name 
 imports, is to fee to the repairs of the church. 
 By x general cuftom, the inclofures of the 
 church-yard are to be maintained, and the 
 body of the church is to be repaired, by the 
 parifhioners, and the chancel only by the 
 
 cupy lands within the pariih, is becaufe they cannot prefent ab- 
 fentees from the church, or thofe who make diforders therein. 
 
 1 Gibf. t. ix. c. 15. Neither is there any difference in the 
 cafe of a donative; for they are the officers of the pariih, and 
 not of the patron. (Str. 715.) 
 
 8 Burn. ibid. 
 
 * 2 Lift. 489. i Sal. 165. i Burn's ecd. law, 321. (8vo, 
 1767.) 2 R. A. 337. 
 
 parfonj
 
 L B c T . 1 6 . part/lies and town/hips. i 6 9 
 
 parfon, vicar, or lay impropriator. But in y ma- 
 ny parishes in London, the repairs of the chan- 
 cel, alfo, as well as of the church, reft on tho 
 parifhioners. In this refpect our polity differs % 
 it is faid, from the civil and canon laws of Rome* 
 They are reprefented to impofe on the incum- 
 bent the charge of keeping the whole church in 
 neceflary and decent repair, and to be in that 
 article adopted by moil chriftian countries. If 
 it be fo, the Englifh laws proceed on fuperior 
 reafon : for this is too heavy a burden on a lingle 
 perfon, the emoluments of whofe preferment 
 determine with his life, and may .therefore be 
 more eafily fuftained, and more effectually ac- 
 complifhed, by the whole parochial congrega- 
 tion* For this purpofe, the churchwardens a 
 may, by a general fummons at the church, re- 
 quire the parifhioners to meet and make a rate; 
 and the majority prefent will bind the parifli, 
 tho thefe officers themfelves voted againft the 
 meafure. If b the parifhioners will not meet, 
 they may make a rate without their concur- 
 rence, becaule they are punifhable for neglect - 
 
 * i Sal. 164,5. Lynd. Prov. 53. 
 
 * Garth. 360. The whole meaning feems to be, that, bjr 
 the Roman, or very antient Englifli, canon law, a portion of ti:he< 
 
 was dedicated to this ufe. (i Burn's eccl. law, 320. 8/0. 1767.) 
 Perhaps, with us, impropriations firft defeated this provifion. 
 
 * Watf. c. xxxix. i Mod. 194. 236. All the parifliioners 
 
 may be excommunicated, and thole willing to contribute muft be 
 abfolved, till the major part agree to make a tax. (Watf. ibid. 
 I Mod. 194.) 
 
 b Watl". c. xxxix. Deg. 172. i Vent. 367. i Mod. 79, 
 It feems alfo, that a tax may be laid for inlarging, as welt 
 su repairing the church. (Watf. ibid, i Modi 237.)
 
 270 Of tie officers of L E c T . I o, 
 
 ing the repairs of the church. If a c perfon rat- 
 ed refufe to pay the affefTment, it can only be 
 fued for in the ecclefiaftical court : and on the 
 other hand, he muft appeal to that tribunal, 
 who thinks himfelf aggrieved by the tax. 
 
 It is a laid down, that if money be difburfed 
 by the church wardens for repairing the church, 
 or other matter merely ecclefiaftical, the fpi- 
 ritual courts (hall allow their accounts : but 
 that if there be any thing elfe in queftion, de- 
 pending on an agreement between the pari- 
 fhioners, the fucceeding churchwardens may 
 have an action of account at common law, and 
 the fpiritual j udge has no jurifdidtion. And as 
 to the allowance of churchwardens' accounts 
 in any cafe by the fpiritual courts, that is now 
 overruled, or elfe mufl be underftood as a mat- 
 ter of form, where there is no controverfy. For 
 the * prefent doctrine is, that the ecclefiaflical 
 judge is indeed competent to compel the 
 churchwardens to bring in their accounts, but 
 that he is thenfitnflus officio, and cannot decide 
 on the expenditure of the money levied, pr 
 other matter in litigation, 
 
 e Deg. 171, 2. I Cro. 659, 660. The general under- 
 
 ftanding is, that the court may in fuch cafes excommunicate. 
 (WaUbn,ibid. i Mcd. 194-) Eut it is remarkable, that the (la- 
 lute or writ, drcumfpcde agatis, 13 E, 1. ft. 4. 2, which feems the 
 foundation of this ecclefiaftical jurifdiclion, is" exprefs, " in quiius 
 to/llius alia pana non potejt iajiigi, quam fe:ur.iaria" If the quef- 
 tion concerning the rate depend on the bounds of the parifa, tha$ 
 matter muft be decided at common law. (Deg. 172.) 
 
 * 12 Mod. o,. * 3 Durn. & Eaft 3 &c. 
 
 Church"
 
 XECT* io. purifies and town/trips. 27! 
 
 Churchwardens are by law invefted with a 
 fpecial property e in the goods of the church, 
 for the more convenient recovery and prefer- 
 vation of things, devoted to holy ufes. One 
 f writer, indeed, confiders the property in the 
 parishioners, and the cuftody in the church- 
 wardens j in refpect whereof, as a fpecial or 
 qualified property, the latter, he allows, may 
 bring an action. For they are fo g far incor- 
 porated, as to fue for goods, or bring an ac- 
 tion of trefpafs for them. They may alfo 
 purchafe goods for the ufe of the parifli. But 
 they are not a corporation, fo as to enable them 
 to purchafe lands, except in London, where, 
 it is faid, fpecial cuftom gives them alfo that 
 privilege. Churchwardens h , however, can- 
 not difpofe of fuch goods without confent of 
 the parifliioners : and if they wafte them, 
 tho the general body of inhabitants cannot 
 commence any fuit, not being a corpora- 
 tion, yet they may choofe new churchwar- 
 dens, who may bring an action of account 
 againfl their predeceflbrs. For ! churchwar- 
 dens, where they are even chofen by prefcrip- 
 
 * Ken. par. antiq. 649. f Deg. 183. 
 
 Gib. cod. t. ix. c, 15. h Watf. c. xxxix, J Ibid. 
 
 tion
 
 272 Of the officers of LECT. 10. 
 
 tion for two years, are, notwithstanding, re- 
 moveable by the parishioners at their pleafure; 
 
 III. I am thirdly and laftly to mention the 
 officers appointed for relieving and providing 
 for the poor. By the ft. 43. El. c. 2, the 
 churchwardens of every parifh, together with 
 a competent number of k fubftantial houfe- 
 holders, to be nominated ' yearly by two or 
 more juflices of the peace, whereof one to be 
 of the quorum, dwelling in or near the fame 
 pariih or division, are conftituted overfeers of 
 the poor, for whom they are to provide, and 
 to fet on work thofe who are able to bear em- 
 ployment. By the ft. 13 & 14 C. II. c. 12. 
 21, in large and ex ten five parishes, diftin<ft 
 overfeers may be appointed for the feveral 
 townfhips and villages therein contained. But 
 to m authorife proceeding under this law, it 
 muft appear, that the parifh were under a dif- 
 ability of reaping the benefit of the ftatute of 
 Elizabeth. And generally diftinct townmips 
 and hamlets maintain the poor in common 
 with the reft of the parifh. Sometimes a 
 
 k See Durn. & Eaft 406. * See Cowp. 139, 
 
 01 Dougl. 346350. i Dum. & Eaft 374 377.
 
 tCT. io fanjhes and townjkips. 273 
 
 queftion arifes* whether a diflridt extrapa- 
 rochial can properly be denominated a vill, 
 and confequently liable to have overfeers 
 appointed, and to relieve its indigent in- 
 habitants* For this purpofe, few houfes 
 will be fufficient, fir Edward Coke's defini- 
 tion being often cited and relied on, " villa 
 eft ex pluribus manflombus n vicinata" A very 
 fmall number has been confidered as anfwer- 
 ing the defcription of a plurality of houfes or 
 dwellings. It was therefore enacted by the 
 it. 17 G. II. c. 38. 15, that in townmips 
 and villages, where there were no churchwar- 
 dens, the overfeers alone mould have full au- 
 thority in refpedl: to the relief of the poor. 
 The flatute of Elizabeth, before cited, men- 
 tions four, three, or two perfons, to be over- 
 feers. If a greater number than four are 
 appointed under that flatute, fuch appoint- 
 ment will be quafhed. The p words and in- 
 tention of the flatute mufl alfo be purfued, 
 in fetting forth that the perfons appointed are 
 
 fubftantial houfeholders : and they q ought to 
 
 *~ 
 
 " i Inft. 115. b, Str. 512. IF4J. Burr. fettl. ca. n 11. & 
 n3I. Burr. 1391. Wherever there is a conftable, there 
 there is a townlhip. i Durn. & Eaft 376. 
 
 Burr. 445. Dougl. 349. 
 
 P Str. 1,261 : but fee 2 Durn. & Eaft 406. 
 
 *Carth. 161. 
 
 T be
 
 274 Of the officers of LECT. 10. 
 
 be generally, not occafipnally, refident within 
 the parifli. Neither r is it proper to appoint 
 a woman overfeer, (tho a fubftantial houfe- 
 holder, and tho it may be urged me may aft 
 by deputy) provided there are others in the 
 parim qualified to ferve : but in s cafes of ne- 
 ceffity (he is under no legal incapacity of fuch 
 appointment. Juflices l of the peace are 
 among the characters exempted. But perfons 
 duly qualified, and refufing to act, are liable 
 to be punifhed on an indictment ; as thofe re- 
 jecting the office of churchwarden are fubject 
 to excommunication. 
 
 Overfeers, in order to anfwer the ends of 
 their inftitution, the relief and employment 
 of the poor, are empowered by the above-men- 
 tioned ftatute, which creates their office, to 
 make a rate or taxation weekly or otherwife 
 on lands, houfes, and perfonal property " with- 
 in the parim. It rather appears by x recent cafes, 
 
 that 
 
 r Vin. abr. t. poor A. z Durn. & Eaft 395 407. 
 
 1 Burr. 245. 
 
 * Tolls and other profits are rateable, where they become 
 due, and not where they happen to be received. (2 Durn. & 
 Eaft 666.) 
 
 x Burr. 2295. 2634. Cowp. 326. (But fee i Durn. & 
 Eaft 727.) An uninterrupted ufage of rating ftock in trade, 
 within a panfh, to the poor, eftablifhes its liability in fuch local 
 
 diftricl.
 
 L E c T . I o . parifoes and townfiips. 275 
 
 that flock in trade is not generally rateable 
 within thefe comprehenfive words, on account 
 of the great difficulties with which fuch tax- 
 ation would be attended. Here we fee a ftrong 
 inftance, how far the argument ab inconveni- 
 enti may be carried in our law : and three 
 judges 7 of the fame court had formerly holden 
 the contrary doctrine. The z contribution to 
 this rate is properly a charge upon the occu- 
 pier, and not upon the landlord. It is therefore 
 enacted by the ft. 17 G. II. c. 38. 12, that 
 where any perfon comes to occupy a tene- 
 ment, affelTed to this rate, or unoccupied, 
 fuch perfon mail be liable in proportion to 
 the time of his occupation, and the former 
 pofTelibr of the premiifes mall pay for the 
 time he continued in pofTeflion. 
 
 The a rate is to be made by and with the con- 
 fent of two fuch juftices as are authorifed to 
 
 diftrift. (Cald. 147: fee Cowp. 579.) And the uncertainty of 
 property does not exempt it from being rated : that only affed* 
 the quantity of the afleflment. (Dougl. 303.) 
 
 i Lord Raym. 1281. 
 
 * 8 Mod. 314. This book indeed is of little eftimaticn 
 
 or authority. But fee to the fame effeft Fitzg. 297 &c. Cowp. 
 453. Cald. 388. It (hould feem therefore that the land- 
 lord, tho rated, is not bound to pay, where there is a tenant in 
 pofieflion. See 2 Durn. SfEaft 630. 
 
 St. 43 El. c. 2. 
 
 2 nominate
 
 276 Of the officers of LECT. 10. 
 
 nominate overfeers : in teflimony whereof, 
 the juftices fign their allowance of the afleff- 
 ment, and afterwards b , in order to its being 
 valid, it muft be published in the church; 
 and it muft alfo, at feafonable times, be open 
 to the inspection of the parimioners. Perfons 
 aggrieved by the taxation may appeal to the 
 feflions; and the e juftices there are to amend 
 the rate, fo far and in fuch particulars as mall 
 be deemed proper, but not, without d neceffity, 
 to quafh the whole affefTment : and the over- 
 feers of any preceding year are to make up 
 their accounts within fourteen days after new 
 overfeers are appointed in their room. In a-* . 
 cafe, that happened prior indeed to the paffing 
 of the ftatute, by which this provifion was 
 enacted, the parimioners had made an order 
 of veftry to borrow money to build a work- 
 houfe, and to indemnify the perfons who 
 mould be bound for repayment : the mafter 
 of the rolls decreed, tho fome years had 
 elapfed, that a rate mould be made on the 
 parim to reimburfe the obligor, who had dif- 
 
 b St. i/G.II. c. 3. St. j 7 G.II.c.38. 1,4,6. 
 
 - Dougl. 563. If a fingle perfon rateable be omitted, 
 
 the rate will be quafhed, according to a recent decifion; ( i Durn. 
 & Eaft 625) tho this feenas oppofite to prior judgments (Cowp. 
 329.) hereby over-ruled. But fee 2 Durn. & Eaft 660. 
 2 Wms. 632 &c. 
 
 charged
 
 LECT. io. part/lies and townjlrips* 277 
 
 charged this loan. Here it appeared, that 
 the loan was contracted by confent of the pa- 
 ri(hioners fummoned on that occafion. But f 
 the authority of the cafe has been queftioned 
 in the court of chancery : and feems effec- 
 tually over-ruled by a late * decifion in the 
 king's bench, by which it appears that a rate 
 cannot legally be made, for repaying money 
 borrowed, even within the year. 
 
 The neceffity of providing for the parochial 
 poor makes it material, in a legal view, to in- 
 quire, where fuch provilion is to be made, or, in 
 other words, on what title or grounds a pau- 
 per's laft local fettlement depends ; which has 
 been the fubjed: of very numerous litigations. 
 It feems clear, both on principles of law and 
 of common humanity, that the impotent poor 
 muft be provided for where they are found, 
 unlefs fome place of their fettlement can be 
 difcovered, to which they may be removed, 
 and which is more peculiarly bound to the 
 performance of that duty. Agreeably hereto, 
 it is faid h to be a vulgar error, that the ft. 
 
 '3 
 
 f z Wins. 634. (4th ed. n.) * Dougl. 116. 
 
 h 6tr. 1067. Indeed the ft C. II. ules the cxpref- 
 T 3 fion
 
 278 Of the officers of LECT. 10. 
 
 13 & 14 C. II. c. 12. was the nrft flatute 
 concerning fettlements : and many more an- 
 tient laws are referred to as having been 
 enacted to that purpofe. But that ilatute is 
 now confidered as the great ban's on which 
 the doctrine of fettlements has been erected; 
 of which I proceed to give a very fhort {ketch, 
 as itftands on general notions of law, and on, 
 divers acts of parliament, explained by judg- 
 ments, chiefly recent, of the court of king's 
 bench. 
 
 The place of birth is prima facie evidence 
 of the fettlement of legitimate children. But 
 the place of nativity affords an abfolute fettle- 
 ment to illegitimate children, unlefs J the mo- 
 ther has, during her pregnancy, been wrong- 
 fully, or occafionally, removed to the parifh or 
 townfhip where the child happens to be born. 
 The flatute of Charles the fecond mentions 
 " a native " as the firft defcription of perfons 
 laft legally fettled. 
 
 fion, " laft legally fettled," as a term previoufly in ufe: an4 
 fuch fettlements had occafionally, fcveral years before, been 
 matters of debate. (23111.358. Dalt. c. Ixxiii.) 
 
 * 2 Bui. 358. i Sal. 121. 2 Sal. 474. 532. 3 Sal. 66. 
 Cald.2i7,8.
 
 J.ECT. 10. part/bes and townfoips. 279 
 
 But by conftruftion of law, and inde- 
 pendent of any ftatute, a fettlement is alfo 
 acquired by marriage. The wife's fettlement 
 is that of her hulband, and furvives to her, 
 (her maiden fettlement being defeated and 
 gone) after his death. On the other hand,, 
 if a J woman, having a fettlement, marries a 
 man not legally fettled any where, (as in one 
 inftance an Irifh failor) her fettlement is not 
 deftroyed; it remains to her after the death of 
 her hufband ; and me may be removed to it 
 even in his life-time, if he ceafcs to maintain 
 and refides apart from her, it not being known 
 where in particular he is -, but this mail not 
 extend to authorife a manifeft feparation of 
 one from the other. In k removals of a wife 
 or widow, as fuch, it is fufficient, in the firft 
 inftance, to prove their maiden fettlements. 
 
 Another mode of gaining a fettlement by 
 conftrudion of law, is by way of defcent, as 
 a hereditary or derivative right from the father 
 or mother, 
 
 
 
 As to fettlements of a man's own acqui- 
 
 fit^on, they depend principally on the feveral 
 
 j Burr, fettl. ca. n 39. n 118. S^ 683. 
 % Cald. 206. 371. 236% 
 
 T 4 ftatutes
 
 280 Of the officers of LECT. i<?. 
 
 1 ftatutes panned in relation thereto : the firft 
 of which laws is a fort of text, on which the 
 others have proceeded by way of ^comment. 
 In all fuch cafes of acquired fettlements, forty 
 days m refidence in the parifh is an indifpenfable 
 requifite. But fuch refidence need not be for 
 forty fucceflive days. As n where a fervant 
 has refided part of the year in one parifh, and 
 at different intervals in another, making more 
 than forty days in the whole in each, his fet- 
 tlement is in that where he flept the laft night. 
 Inhabitancy on a petfon's'/axdedeftafe, fubftan- 
 tially his own, of ever fo inconfiderable value, 
 provided he came to it by act of law, and not as 
 a pecuniary purchafe, will gain a fettlement , 
 and this is by conftruction of law, and a cafe 
 not fpecially mentioned in the ftatutes. But if 
 it be a rented p tenement, it muft be of the an- 
 nual ' value of ten pounds, yet it need not r be 
 
 1 13 & 14.0.11. c. 12. iJ.ILc.i7. 3\V.&M.c. ii. 
 S & 9 VV. III. c. 30. 9 & 10 W. III. c. 1 1. 2 & 3 A. c. 6. 
 12 A. ft. i.e. 18. 9 G. I.e. 7; &3i G. If. c. 11. 
 
 m 2 Durn. & Ball 51. " Dougl. 657, 8. 
 
 See Dougl. 630632. 767 770. 
 
 * This term is conftrued comprehenfively. (i Darn, k 
 Eaft 137,8. 358361.) 
 
 1 Performance of fervice, as a confideradon for occupying 
 the tenement, is equivalent to payment of rent, (i Durn. & 
 Eaft 598, 9.) 
 
 r Burr. 760 &c. 2 Darn. & Eaft 451 Sec. 
 
 x taken
 
 L E c T . I o . parishes and town/trips. 281 
 
 taken for a year : if it be a " pecuniary pur- 
 chafe, there muft have been thirty pounds 
 confideration money, bond fde paid for fuch 
 property. 
 
 Another method of gaining a fettlement is 
 by forty days refidence after giving regular 
 notice, as required by fome of thefe ftatutes, 
 of coming to abide in the parifh. For here 
 at leaft the law conliders, whether paupers are 
 likely to become chargeable at the time of their 
 coming, and if they do not enter the parim in 
 fuch indigent ftate, allows them to acquire a 
 fettlement. I do not find a fingle cafe deter- 
 mined upon a notice actually given, altfoo 
 there have been fome litigations, as to acts 
 fuppofed to be equivalent. 
 
 But byexprefs ftatutes, being rated o and pay- 
 ing the parochial levies (except thofe to fcaven- 
 gers, highways, bridges, and the window tax) 
 are equivalent tofuch notice. And by fome 
 )ate l determinations, if the houfe be generally 
 
 It feems unfettled whether a gratuitous gift of land will 
 furnifh the means of acquiring a fettlement. (i Durn. & Eaft 
 
 *47> 8 -) 
 
 1 Burr. 1062. Burr, fettl. ca. n 148. Dougl. 564. See 
 Dougl. 225, 6, 7. 621, 2. Cald. 276283. 374388 ; and in 
 particular 2 Durn. & Eaft 628 &c. 
 
 rated,
 
 282 Of the officers of LECT. 10. 
 
 rated, and the tax paid by the inhabitant of it* 
 he will gain a fettlement. 
 
 Another u ftatutable method of gaining a 
 fettlement is by being placed in and fervmg 
 an annual office in the parim, as that of con- 
 ftable : which x is effectual, tho executed by 
 deputy. 
 
 Apprenticeship J forms another mode of 
 gaining a fettlement chalked out by the 
 ftatutes. The binding muft be by writing, 
 and the inftrument muft be dulyftamped; 
 but iince the ft. 31 G. II. c. n, it need not 
 be an indenture, nor z need the mafter execute 
 a counterpart. 
 
 The only remaining method of acquiring a 
 fettlement, and which has been productive of 
 more litigation and refined diftin&ions than all 
 the former, is by hiring andfervice. The fta- 
 tutes require, that, at the time of the hiring, 
 the pauper be childlefs and unmarried. They 
 alfo exacl: a hiring for a year, and a fervice for 
 a year. Therefore a a retrofpedive hiring, or 
 
 n Burr, fettl. ca. n 10. * Cald. 252262. 
 
 f See Cald. 60. 126. 367. Dougl. 70. I Purn. & Eaft 
 281. 
 z Cald. 31. Cald. 23. 
 
 a hiring
 
 L E c T . I o. parljhes and townflnps. 283 
 
 b a hiring with an exprefs exclulion of part of 
 the year, at the time of the contract, (unlefs 
 c it be fuch an exclulion as the law would im- 
 ply) will not avail. But a general hiring is 
 conftrued a hiring for a year, where nothing 
 appears to negative d that idea. So a hiring * 
 from whitfuntide to whitfuntide is fufficiently 
 effectual to confer a fettlement, tho that 
 moveable feaft happens earlier in the fucceed- 
 ing year, for there is no cafe which makes 
 the exaft period of three hundred and fixty- 
 five days the criterion; and parifh offices, 
 which afford one means, as we have feen, of 
 gaining a fettlement, are fo ferved. Laftly, . 
 f a hiring on the day after michaelmas till 
 the next michaelmas, or the like, is conilrued 
 inclufively, and gains a fettlement. 
 
 As to the fervice, abfence in the middle of 
 the year, by the act of God, as in confe- 
 quence of licknefs 5 , or abfence h with the 
 
 k Burr. 495 ; but fee 2 Durn. & Eaft 379. 
 
 c Dougl. 391. d Burr, fettl. ca. n 206. 
 
 * Burr, fettl. ca. n 208. A hiring at fo much a week is 
 
 not an implied hiring for a year. (2 Durn. & Eaft 453.) 
 
 f Cald. 1922. i Durn. & Eaft 490. 
 
 * Str. 423 &c. Burr, fettl. ca. n 158. Si n ill. 
 J Burr, fettl. ca. n 152, 
 
 leave
 
 284 Of the officers of LECT. 10. 
 
 leave of the matter, or without fuch leave, 
 if the pauper be received again, will not vitiate 
 or defeat the fettlement. So hiring k for a 
 year, and fervice for a year, but not under the 
 fame contract, as if there is a hiring for lefs 
 than a year, and fervice purfuant to it, and 
 then a fecond hiring for a year, and fervice 
 under it for fo long as will make up a year's 
 fervice in the whole, this will gain a fettle- 
 ment. In fuch cafe, there mufl have been 
 no interruption, or difcontinuance, of the firft 
 contract, ' before the time of entering into the 
 fecond agreement. But abfence for an hour, 
 to confult with the pauper's father about the 
 fecond hiring, was not conftrued fuch a dif- 
 continuance. If indeed, in this or in other 
 cafes, the n relation of mafter and fervant is 
 completely diflblved by mutual confent, there 
 is no pretence to fay, that the ftatute, which 
 requires continuance in the fame fervice for a 
 year, is complied with, or that a fettlement is 
 gained. But where n they part a little before 
 the end of the year, the court rather looks 
 
 1 Burr, fcttl. ca. n 14. Cald. 298. 
 
 k Burr, fettl. ca. n 37. Dougl. 309. Cald. 359." 
 
 See Dougl. 310. n. Cald. 67. I Durn. & Eaft 778* 
 
 m Burr.fetd. ca. n 147. i Durn. &Eaft 101. 
 
 6 Burr, fettl. ca. n 229. Cald. 48. 
 
 upon
 
 x, EC T . 10. panjhes and town/hips. 285 
 
 upon this as an abfence with leave than as . a 
 diflblution of the contract, and in thefe in- 
 ftances ftrondy inclines to adjudge in favour 
 
 O J , -,V.-.-C?V - 5. 
 
 of the fettlement. 
 
 fc 
 
 It feems proper here to make fome men- 
 tion of certificates, which are writings under 
 the hands and feals of the churchwardens, 
 or the major part of them, duly attefled 
 by two witnelTes, and fubfcribed by twp 
 jufKces, acknowledging the perfons therein 
 mentioned to be fettled in the parifh, which 
 grants fuch memorial, and which p is conclu- 
 ,five evidence of the fettlement againil the pa- 
 rifli granting it, while in force, and till an 
 
 Which are faid to be introduced (by ft. 8 & 9 W. III. 
 c. 30) to cure a radical defeft in the fyftem of" the poor laws, 
 viz. *hat, in a commercial and manufacturing country, the poor 
 ftiould all be confined to their refpeftive parilhes, and being 
 poffefled of induftry, vigour, and fkill, and unable to find work 
 at home, fhould be prohibited from feeking it abroad. (Cald. 
 216.) And indeed the power of removal on a faggeftion of 
 being likely to become chargeable, was originally thought a 
 great retrenchment of natural liberty, making men beggars and 
 prifoners, and depriving them of the company of friends and 
 relations, of choice of air and place of trade. (Dalt. c. Ixxiii. 
 51. ed. 1677.) which feciion is an addition, among others, 
 to that author. 
 
 * Cald. 64. 
 
 abandonment 
 

 
 286 Of 'the officers of -LECT. 10. 
 
 ' abandonment of it by the paupers or their de- 
 fcendants. If it r wants the allowance of the 
 juftices, it cannot be ufed as a certificate* 
 Such certificated paupers cannot be removed 
 from a parim into which they come with this 
 kind of manifefto, till they become actually 
 chargeable, not merely becaufe there is a 
 likelihood of their becoming fo in future. 
 But on the other hand, they cannot, by the 
 words of one * of the ftatutes, gain a fettle- 
 ment in the parim into which they come as 
 certificated paupers, and which is thereby 
 bound to receive them, otherwife than by 
 renting a tenement of ten pounds a year, or 
 ferving an annual office. Neither * can the 
 fervant or apprentice, as fuch, of a certifi- 
 cated perfon gain a fettlement. But u by an 
 equitable conftruclion of one of the ftatutes 
 juft alluded to, a certificated perfon may gain 
 a fettlement by refiding on his own eftate, if 
 
 ^ See Cald. 144 Sec. and the cafes there cited; and i Durn. 
 
 & Eaft 354 358. A-fecond certificate difchargesa former 
 
 one, both being given by the fame to two different parifhes. 
 (i Durn. & Eaft 218.) 
 
 r Burr, fettl. ca. n 187. 
 
 9& 10 W. III. c.i i. 
 
 * St. 12 A. ft. I. C. l8. 2. 
 
 8 Str. 163. 265, 6. Burr, fettl. ca. n 75. 
 
 the
 
 LECT. 10. parifoes and townjhjps. 287 
 
 the purchafe money amounts to thirty pounds, 
 or whatever be the value, if he comes to 
 it, whether copyhold or freehold, by other 
 means than a pecuniary confideration. In 
 fuch cafe, his real property gives him a right 
 of admittance into the parim, independently 
 of his certificate, without that paffport. 
 
 On complaint made to the churchwardens 
 and overfeers, that a pauper, (in cafe of a cer- 
 tificate) is chargeable, or (otherwife) likely 
 to become fo, he is removeable, by a written 
 order of two juftices, to the parim where he 
 is fettled. This order of removal may be 
 appealed from, by the parim thereby charged 
 (due notice of fuch intention being given, 
 where there is time for it, otherwife x the ap- 
 peal may be entered and refpited) to the next 
 quarter fefllons of the county containing the 
 removing parim. That court, by the ft. 
 5 G. II. c. 19, has power to amend defects 
 in form ; and after fuch amendment, or where 
 no objection of that kind arifes, it proceeds to 
 hear the evidence, and to determine on the 
 law refulting from the facts .proved, according 
 
 * Dougl. 191. 
 
 to
 
 288 Of the officers, &c. LECT. 10. 
 
 to the principles on which the fettlement 
 depends, and of which I have given this very 
 fuccinct fummary. The judgment of the 
 feflions may be reviewed, and reverfed, or af- 
 firmed, in the king's bench, the orders made 
 by the juftices originally, and at the feffions, 
 being removed by writ of certwrarl before that 
 fuperior tribunal. 
 
 I have been neceflarily led into this fhort 
 detail of the poor laws, by the mention of 
 thofe fubaltern civil officers, of whom I have 
 laft treated, and with whom I mall clofe our 
 inquiries into the various distributions, ac- 
 cording to the laws of England, of political 
 power or authority. 
 
 PART
 
 PART THE FIRST. 
 
 DIVISION ?HE SECOND. 
 
 LECTURE XL 
 
 Of the prelates of the church t and others having 
 fpiritual promotion. 
 
 HAVIN G clofed my inquiries into the 
 feveral fpecies of magiflracy, or per- 
 fons governing, whether fupreme or fubordi- 
 nate I proceed to confider the other mem- 
 bers of the community, or thofe who are 
 governed* 
 
 Some indeed, out of the fuperior orders 
 of citizens, befides the general and intrin T 
 fie dignity of their ftations and functions, 
 partake in the higheft authority, and have , 
 a fhare in the legiflative, executive, or ju- 
 
 U dicial
 
 290 Of the prelates LECT. i jr. 
 
 dicial powers of the ftate : fuch are the mem- 
 bers of the three learned profeffions, and the 
 officers of the army and navy. As to that 
 profeflion, with which this courfe of ftudies 
 
 is, moft connected, 1 have, in one a of my 
 
 * elementary difcourfes, already fpoken of the 
 character of an advocate. I mail pafs over 
 moft of the other fpheres of life, few of 
 which afford much ground for legal difqui- 
 fition. Still lefs am I inclined to treat of 
 fuch diilinctions as confer hardly any right 
 except merely that of precedence. 
 
 But the clergy are fo juftly and fo many 
 ways refpedted by the laws, (being, as the 
 legiflature b have heretofore exprefled it, " one 
 of the great ftates of this realm") as to 
 demand a feparate and particular difcuflion. 
 Both the honours and emoluments due to this 
 profeflion are inforced by reafon and revela- 
 tion. Neither have pofitive inftitutions been 
 wanting in this country to exalt their cha- 
 rafter into juft dignity, to fecure to them 
 their merited revenues, and to arm them with 
 privileges and exemptions. There is fcarce 
 a code of Anglo-Saxon laws which begins in. 
 
 a Elem. jur. left. VI. b St. 8 El. c. I. 
 
 any
 
 4.ECT. ih (/the church-, &c-. 291 
 
 any other manner, than by aflertirig (after, 
 * perhaps, fome religious ordinances) the due 
 and accuftomed franchifes of the church and 
 churchmen. Thus alfo the firft chapter of 
 magna carta ordains, " quod ecclcfia Anglicana 
 llbera fit, et habeat omnia jura fua Integra et 
 liber t at es fuas illafas" The maintenance 
 
 / %/ 
 
 and protection of the rights of the eeclefiaf- 
 tical order was always a part of the corona- 
 tion oath* By the prefent form of that oath, 
 enacted* at the revolution, the king is tofwear, 
 " that he will to the utmoft of his power 
 maintain the laws of God, the true profeffion 
 of the gofpel, and the proteftant reformed 
 religion eftablimed by law, and will preferve 
 unto the bifhops and clergy of this realm, and 
 to the churches committed to their charge, 
 all fuch rights and privileges as by law do or 
 mall appertain unto them/* 
 -filyf T bn nolfc^l v/J b^.n^a; M.S nbrhotox. 
 
 Spiritual perfons are e diflinguifhed into 
 bifoopSy fine/is, and deacon?, as the church of 
 
 England 
 i Q J 
 
 f i j I / / m .)n IT* if! f~j fi["-^ f ' ) ' ' )* "i -t'-.f<i "j',.ii 
 
 * Wilk, LI. A. S. 1 27. * St. i W. & M. fefl; i. c. 6. 
 
 * Befides thefe, (fays Dr. Burn, eccl. law, t. ordination) the 
 church of Rome has five others, fubdeacons, acolyths, exorcifts, 
 readers, and oftiaries. But according to Lyndwood, a canonill 
 in popifh times of confammate learning, (Pror. 27) holy orders, 
 
 Uz
 
 292 Of the prelates LECT. n. 
 
 England holds, by apoftolical institution. Our 
 pofitive laws have fuperadded diflindlions 
 confiftent with, and in no degree derogatory 
 from, this divine arrangement. Here I muft 
 again make mention, firft, of the king ; who f in 
 fome old law books is ftiled ferfona mixta, pof- 
 ferTed both of a lay and an ecclefiaftical capa- 
 city; and who hath the title and authority of 
 fupreme head, upon earth, of the church of 
 England ; and the ftatute, which recognizes 
 this preheminence, is z but a declaration or 
 reftitution of the antient common law. Some 
 notice has already been taken of the convoca- 
 tions, or provincial fynods of the clergy. I 
 have alfo had, and fhall have future occafions 
 
 of fpeaking of the archbimops and bifhops, as 
 (TfnV-i> rtf.'*f 
 
 . 
 
 " ftritte loquendo, funt quatuor t ant urn, fcilicet fubdiaconaivs, 
 tonatus, prefbyteratuf, et efi/cofatus." In the epiftle written by 
 ^Elfric, a biihop or abbot, to archbifhop Wulflan, many years 
 before the Norman conqueft, giving an account of feveral coun- 
 cils, and points of ecclefiaftical hiftory, there is this pafTage, (in 
 which it is remarkable that priefts and bifhops are clafled toge- 
 ther, tho in other refpefts, holy orders are enumerated exaftly 
 according to the church of Rome) . " Diletti* jeptem ordines 
 conftltuti Junt in librii ad Dei fervitia in ecclejia Dei ; units eft of- 
 tiarius, fecundvi eft letfor ^ffr . feptimus prefbyter five efifsopus. 
 Ojliarius eft cujios ecclejite ffr. Dilefti, intelligite, quod amba epif- 
 copus et prejlyter jint in uno ordine, hoc eft infeptimo ordine ecclejiaj- 
 tico, uti facer liter nobis indicat t3c. (Wilk. LI. A S. 167.) 
 
 f Yearb. 10 H. VII. 18. b. W. Jon. 387. 
 
 t Mo. 782. See port left, XIII. 
 
 members
 
 LECT. ii. of the churchy &c. 293 
 
 members of the lords' houfe of parliament. 
 The exercife of their fpiritual function, fo far 
 as it was a proper fubject of pofitive inftitu- 
 tions, is, in fome meafure, regulated by the 
 feveral acts of uniformity, which will be men- 
 tioned in the lecture concerning the legal 
 eftablifhment of the national religion. There 
 are, befides, other particulars, in which the 
 prelates of the church are refpected by the 
 law, not, perhaps, undeferving of a fhort re- 
 cital. 
 
 Bifhops h are faid, in the antient chriftian 
 church, to have been chofen by the clergy 
 and laity, and that afterwards the emperors 
 affumed the power of nomination, in order to 
 prevent the tumults, that arofe at fuch crowd- 
 ed elections. This right was diverted from 
 them by the machinations of the pope, under 
 the pretence, that it was corruptly exerted : 
 and the election was placed in the conventual 
 canons of the cathedral church, whofe choice 
 was ufually confirmed at Rome, But Covar- 
 ruvias ', tho a Spanifh canonift and a popifli 
 prelate, maintains the propriety of the prince's 
 
 * Ayl. par. jur. can. Angl. 126. * Covar. 476, 7. 
 
 U 3 confent
 
 294 Of the prelates LECT. 
 
 confent in the difpofal of bifhopricks, and 
 fays, that in France it was indifpdnfahly ne- 
 
 ceffary. 
 
 ' 
 
 It has been declared by parliament that all k 
 the bifhopricks in England are of the king's 
 foundation, and that he is the patron of them, 
 Sir Edward Coke adds, ' that, at the firft, they 
 were donative. In the Saxon m age, ecclefiaf- 
 tical dignities are faid to have been conferred 
 in parliament. But, except during the reign 
 of Edward the fixth, when, by a n law fmce 
 repealed, archbifliopricks and bimopricks 
 were made donatives of the king's patronagej 
 
 k Preamble ft. 2. (vulgo \.) J. I. c. 3. Watf.tr. ix. 
 
 i ilnft. 1 34. a. 
 
 m Ayl. 1*6. The king feems to have had the right (at 
 
 leaft before the Norman conqueft) of difpofing of them. For 
 we read that king Edward the elder, by advice of his chancellor 
 Turketill, filled up feven vacant biftiopricks in one day. (Ingul. 
 hift. 36.) It appears, however, that in times ftill earlier, there 
 had been, ** canonica pra-Iaforum eletfio" fince Ingulphus com- 
 plains of the longdifufe fit. (Ayl. ibid. I Inft. 134. a. 13 
 ed. n. i.) 
 
 * St. i E. VI. c. 2. repealed by ft. i M. feff. 2. c. 2 . 
 
 The latter was repealed by ft. z J. I. c. 25, 48, whence it 
 might be inferred that the former was revived. But by ft. i El. 
 p. i. the ft. 25 H. VIII. c. ?o, for the eleAion of bimops in the 
 prefent form, is revived ; and this therefore is a repeal of the 
 ft. of Ed. VI. independent of the repeal thereof by th,e ft, of 
 Mary, (i Inft. 134. a. 12 Co. 7.) ^1 
 
 * there
 
 LECT. ii. of the church, &c. 295 
 
 there has been, at leaft fince the time of 
 king John, or rather of Henry the firft, a 
 form of election by the dean and chapter ob- 
 ferved; which, before the reformation, was 
 fubject to the control of the king, and was 
 frequently interpofed in by the pope ; and, 
 fince the renunciation of Romifli authority, 
 the whole power in effect is veiled in the fo- 
 vcreign. 
 
 After fuch election and confirmation, the 
 new bifhop is intitled to be fummoned to par- 
 liament, (as I obferved in my fecond lecture) 
 even before he obtains reftitution of the tem- 
 poralties of the fee, which is juflly urged as 
 an argument to prove, that his attendance in 
 the houfe of lords is by antient ufage, as a 
 conftitutional right, annexed to his eccleiiafti- 
 cal dignity, and not by reafon only of his 
 holding lands per baroniam. It is infilled* 
 that p in the time of the Saxons, bifhops fate 
 in flate councils by reafon of their office, as 
 they were fpiritual perfons, and not on ac- 
 
 Gibf. cod. t. v. c. I . It has been fuppofed, (as bifhop 
 
 Gibfon obferves) that the above-mentioned ftatute of E. VI. 
 was intended to pave the way for the abolition of deans and 
 Chapters. 
 
 1 3 Sal. 73, 
 
 U 4 count
 
 Pf the prelates- L E c T 1 1 
 
 count of any tenures. Some learned men q , 
 therefore, are of opinion, that the prelates of 
 the church now fit in parliament in a double 
 capacity, as bifhops, and as barons by tenure, 
 except the five added to the number by king 
 Henry the eighth, who are faid to have no 
 baronies annexed to their fees. But fince 
 the reft conftituted a part of the general 
 councils of the realm, before the eftablifh- 
 merit of feudal tenures, their fenatorial func- 
 tion, as well as the reft of their character, 
 may be fuppofed to have remained, after they 
 began to hold their landed porTeffions Jicut 
 baromam'j efpecially as, during the vacancy of 
 a fee, there are many precedents of writs of 
 fummons directed to the guardians of the 
 fpiritual&es, which is a ftrong confirmation 
 of the fpiritual capacity of the bifhops in 
 parliament, independent of their baronia} 
 right. 
 
 ^trjibJWHHi'rt! <*<&*#$ 
 
 The perfon elected is not a complete bi- 
 fhop but by confecration ; nor till after that 
 folemn rite, and his being approved by the 
 king, (whofe r confent runs through the pro? 
 
 1 Gibf. cod. t. v. c. 6. Warb. all. 148. (Ath ed.) Ayl. 1 29. 
 Ayl. 198.' 
 
 ceedings)
 
 IECT. 1 1. of the church, Cff. 297 
 
 ceedings) can he exercife all his judicial and 
 important operations j tho it is faid, he may 
 adt 3 minifterially, as by iffiiing his certificate 
 in a queftion of baftardy, or the like. 
 i-fti&pn- K- j' rm. +-* vif* *- ' - a j , > -. t .* 
 
 The antient mode of inveftiture to biihop- 
 ricks, by the partoral ftaff and ring, jjave 
 great offence to the pope and his zealous 
 partizans. Archbilhop ' Anfelm, not having 
 been elected by the monks of Canterbury, 
 was contented to be inverted by William Ru- 
 fus in this way -> and was himfclf afterwards, 
 with a very ill grace, a chief fomenter of 
 thofe difturbances, The matter;; u ,was ad^ 
 jufled in the reign of John, by requiring, 
 -that (belides the king's prior recommenda- 
 tion, and fubfequent affent to the election) 
 the new bifhop ihould do homage on having 
 his temporalties reftored ; which mode could 
 not be objected to as a form of conferring a 
 fpiritual office by lay hands. In the interim % 
 the king is feifed of the freehold of the tem- 
 poralties, may take the profits, and prefent 
 to a vacant benefice, Neither after reflitu- 
 
 2 Rol. 451. Gibf. cod. t. v. c. 2. l Ayl. 126. 
 u 3 Sal. 71. 
 
 * i R. A. 881. 2 R, A. 343, 4. ex parte TarransCanc. 
 Trin. term. 1783. 
 
 tioa
 
 298 .'JQftls prelates LECT. u. 
 
 tioTDnfcan; the bifhop have an action of tref- 
 pafs, as it feerns y , for a wrong done during 
 the vacancy ; for that fuit implies the plain- 
 tiff's being* fop ptofleffion at the time of the 
 injury committed. Altho he is a complete 
 biihop by confecration, and altho he is alfo 
 intitled to become the king's tenant in re-, 
 fpect to the barony or temporalties of the 
 lee, he is not actual tenant till after homage 
 done, and the fuing out of the writ of refti- 
 tution. 
 
 Beiides the former requifites, which I have 
 alluded to, namely election, approbation, con- 
 firmation, and confecration, there is the far- 
 ther l ceremony of inflallation of a bifhop, 
 and inthronization in the cafe of an archbi- 
 fhop. The fame a eflentials, that are in ufe 
 on a new creation, occur likewife on a k 
 tranflation from one bifhoprick to another, 
 
 except 
 -ij^Igan. j^-iiic- !*; iiat*&t:l ii utb 
 
 r 2 Inft. 152. " i Sal. 137, * W. Jon. 160. 
 
 *> In papal times, fuch,tranflations were accomplilhed by pe- 
 titioning the pope for a difpenfation ; which pradtice was called 
 ** poftulation," but was an illegal and ufurped power. (I Sal. 
 137.) The cafe is, that by the council of Sardis, tranflauons 
 of bifhops from one city or fee to another was abfolutely prohi- 
 bited, in order to fhun the fufpicion of avarice or ambition in 
 men of that confpicuous dignity and exalted office. (Ayl. 
 
 nj 
 o
 
 I,ECT. ii. of the church t &c. 299 
 
 except confecration, which i not to be re-* 
 pelted. 
 
 An Englifh bifhop, thus duly and corn-* 
 pletely conflicted, may be faid to officiate in 
 many different capacities, In ordination, and 
 other folemn rites fet forth in our excellent 
 liturgy, he performs a purely fpiritual func- 
 tion of apoftolical inititution. In parliament, 
 and in convocation, he is inverted with a le- 
 giflative, and fometimes a judicial, character. 
 In his court he pofTefTes ecclefiaftical jurif- 
 diction, both criminal and civil j which he c 
 may difcharge in perfon, tho in general it re- 
 mains delegated to his chancellor* As to the 
 revenues of the fee, he enjoys a power of 
 leafing the eftates, of which he is feifed as 
 bifhop, fubject to ibme provifional reftraints, 
 introduced by ftatute law for the benefit and 
 fecurity of the fucceflbr. Laftly, he difpofes 
 of benefices, either by original right, or by 
 lapfe \ where the immediate patron neglects 
 
 $22.) It was therefore neceflary to call in the mercenary af- 
 fiftance of the pope, to difpenfe with what was the received law 
 of the church, or at leaft of too much authority to be overlook- 
 ed. The term " poftulation," it feems, was ufed in other in- 
 ^lances of difpenfation, as in favor of a perfon elected biiliop 
 pnder thirty years of age. (Gibf. cod. t. v^ c. I.) 
 >Sal. 134, d 2 Inft. 361, 
 
 to
 
 200 Of the prelates LECT.II. 
 
 to prefent for the fpace of fix calendar 
 tnonths. 
 
 The dignity of bifhop is univerfal : he is 
 a bifhop of the univerfal church. Therefore 
 an Irim prelate muft fue and be fued here 
 by his appellation of bifhop : but it is not 
 ftri&ly neceiTary, that a temporal peer of that 
 kingdom mould in any action have his titles 
 of honor on the record. The f Irim bifhop^ 
 ricks have always been conferred as donatives 
 by the king's letters patent. 
 
 m 
 The number E of bimops in England hath 
 
 varied in different ages. Thus we read h of a, 
 bifhop of Whitehaven fummoned to parlia- 
 ment in the fifth year of Richard the firft. 
 The five new bifhopricks, created by Henry 
 the eighth, were fo conflituted, not by his 
 fole authority, but by virtue of an ' act of 
 parliament, patted for that purpofe. 
 
 
 As the prefent bifhops are fuffragans to the 
 
 'Pal. 345. * Pal. 27. i Sal. 136. 
 
 Ingulph. hift. 36. h i Parl. hift. 17. 
 
 1 St. 3 1 H. VIII . c. 9. Gibf. cod. t. viii. c. 6 ; where the a$ 
 may be feen ; for it is not printed in the editions of Ruffhead or 
 Pickering. 
 
 archbifhops
 
 ' J 1 
 
 LECT. ii. of the church, 'GJV. 301 
 
 k archbifhops of each province refpedlively, 
 fo in former times the bimops alfo had their 
 fuffragans. Thefe ' inferior fufFragans were 
 confecrated like Bother bimops, and had their 
 fees in towns, not in cities, like the regular 
 permanent bimops of the realm. Confider- 
 ing that an aft nl was patted relating folely to 
 thefe inferior fufFragans, fo late as the year 
 1534, it may feem remarkable that fince that 
 time we meet with fo little notice or mention 
 concerning them. But this gives occafion to 
 remark, that, according to fir Edward Coke* 
 every borough incorporate, that hath or had a 
 bifhop, not being furFragan to another bimop^ 
 within time of legal memory, as Weftminfter, 
 is and continues a city, though the bifhop- 
 rick be diflblved. Whatever diftinction an- 
 tiently, I mean, in very early times, prevailed 
 between cities and towns in England, it cer- 
 
 k The term "archbifhop" applies to the province, not to 
 the diocefe. The two primates are refpeclively bimops of the 
 diocefes, and archbifhops of the provinces, of Canterbury and 
 York. (Watf. c. xii.) For there is no other biftiop of thofe 
 diocefes. 
 
 1 Burn's eccl. law, t. bimops, 8. 
 
 St. 26 H. VIII. c. 14. 
 
 I Inft. 109. b. But Mr.Hargrave adds, (13. ed. ad loc.) 
 that this is an unapt example : for Weftminfter was exprefsly 
 created a city, by the fame letters patent which creeled the bi- 
 fhoprick, 
 
 tainly
 
 302 Of the prelates L E c T . 1 1 * 
 
 tainly was not this : for in the great council 
 of biihops and abbots holden here in the year 
 1072, by command of pope Alexander the 
 fecond, by the confent and in the prefence of ^ 
 the king, for fettling the difputed fuperiori- 
 ty between the two archbifhops, it was de- 
 creed, that bimops' fees mould be transferred 
 from towns to cities. This decree probably 
 gave rife to the opinion, that a bimop's fee 
 conftituted a city, in the cafe alfo of the new 
 foundations. The fame diftindlion is not paid 
 to bifhops' fees in Ireland, 
 
 The bifhops of each province are, as I 
 have faid, fuffragans, and under the authority 
 and jurifdi<5tion of the refpe&ive archbifliop. 
 For p tho there may be a co- ordination jure 
 dvvinQ) yet there is a fubordination jure eccleji- 
 aftico qua bumano, not of neceffity from the 
 nature of their offices, but for convenience or 
 political expedience. And therefore q when 
 the archbifhop of Canterbury had cited before 
 him the biihop of St. David's, and was pro- 
 ceeding to deprive him for fimony, the king's 
 
 r riu . _% '.)<'. .-(a-K'iq 
 
 p Ingulph. 92, 93. The fee of the great midland diocefe 
 was accordingly foon afterwards transferred from the town of 
 Dorcheiler in Oxfordihire to the city of Lincoln ; and fo, I 
 fuppofe, in other inftances. 
 
 * LordRaym,5^i. *LordRaym. 447451.539545. 
 
 bench
 
 LECT. 1 1 . of the church, 6fr. 303 
 
 bench refufed to grant a prohibition to flay 
 the proceedings in the archiepifcopal court. 
 The bifhop appealed from the metropolitan to 
 the higheft ecclefiattical jurifdiction, namely, 
 that of the delegates commiflioned under the 
 great feal, and yet at the fame time moved for a 
 prohibition to prevent them from entertaining 
 the caufe, but the king's bench again reject- 
 ed his application. Then he obtained, with 
 fome difficulty, a writ of error to the houfe 
 of lords, on the denial of the prohibition, but 
 it was determined, that a writ of error would 
 not lie in this cafe. Thefe adjudications con- 
 cur in confirming the archbiihop's right of 
 jurifdiction. 
 
 TUiAs between the two primates, the archbi- 
 (hop of Canterbury has the preheminence. 
 He is fliled primate and metropolitan, not of 
 England only, as the archbimop of .York is, 
 but of all England, becaufe r in popifh times 
 he was inverted with a legatine authority 
 throughout both provinces, and may at this 
 day grant faculties and difpenfations in both 
 provinces alike. But if we go up higher 
 than the date of any legatine authority, we 
 
 i o.T.I :"> ^; f i '* ej .'urlibioUG m naii-w^noU 
 * Burn's eccl. law, t. bilhops, iV' 
 
 mall
 
 364 Of the prelates L E c T . i i * 
 
 (hall find him the only primate of Britain, 
 a Iterius orbis papam 5 - y and the powers deput- 
 ed from Rome were but falfe glories, that 
 concealed his genuine right. Winifred, ' bi- 
 mop of York, is faid in very early times to 
 have been deprived by Theodore^ archbilhop 
 of Canterbury: for the former fee was not 
 antiently metropoliticalj but fubject to the 
 then only primate's jdrifdidlion. Ingulphils 
 writes ", that, at the council before fpoken 
 of, it was proved, quod TLboracenJis ecclc- 
 Jia Cantuarienji debeat fubjacere ; and that it 
 was fettled, that the archbimop of York 
 mould attend with his fuffragans at the con- 
 ventions fummoned, and obey the decrees 
 made, by the fuperior archbimop. At the 
 fame council, the archbimop of York's pro- 
 vincial jurifdiction was recognized over his 
 fuffragans, north of Litchfield and the river 
 Humber, not in England only, but to the ex- 
 tremeft parts of Scotland. His power/ how- 
 ever, over the Scotch bimops, he loft foon 
 after the middle of the fifteenth century ; and 
 it was transferred to the archbimop of St. 
 Andrew's. The w dignity of the archbifhop 
 
 Lord Raym. 541. * Ibid. Hift. 92. 
 
 * Burn's cccl. law, t. bifliops, u Ibid. 
 
 Of
 
 LECT. it. of the church, &c. 305 
 
 of Canterbury is faid to have been fo far re- 
 fpected even abroad, that in general councils 
 he had the precedency of all other archbi- 
 jfhops. 
 
 An archbifhop is * intitledj at the creation or 
 tranflation of one of his luffragans, to demand 
 a legal conveyance of the next avoidance of 
 fuch dignity or benefice belonging to the fuf- 
 fragan's fee, as the archbifhop mall choofe 
 and name, which is thence called his " option," 
 and in cafe of his death, his executors will 
 have a right to prefent, or he may make a 
 particular and exprefs difpofition thereof by 
 will. 
 
 Having mentioned thefe particulars relative 
 to archbifhops and biihops, I am next in or- 
 der to fpeak of deans and chapters, which, ac- 
 cording to fir Edward Coke y , were originally 
 inftituted as a council to the bifhop, to ad- 
 
 * Burn, eccl. law, t. bifliops, 7.- It feems, that an option 
 is loft by the death or tranflation of the bifhop who granted it ; 
 and that the archbifhop, or his perfonal reprefentative, cannot 
 prefent after the death of the bifhop, tho the vacancy happened 
 in his life- time, but the prefentation falls to the crown during 
 the vacancy of the fee. (Ambl. 101.) 
 
 r 3 Rep. 75. a. i Inft. 103. a. 
 
 X vife
 
 306 Of the prelates LECT. n. 
 
 k 
 vife with him in matters of difficulty, and to 
 
 affift him in deciding controverfies concern- 
 ing religion, and alfo to confent to leafes and 
 grants made by him, in order to bind his 
 fuccelTor. But now, by the ftatutes which 
 concern leafes made by fpiritual perfons, the 
 fucceflbr will be bound without the concur- 
 rence of the dean and chapter, if the powers, 
 fpecified in the a&s of parliament, are not ex- 
 ceeded. In matters to be tranfadted by the 
 dean and chapter, the z dean hath no nega- 
 tive or neceffary voice. 
 
 \ 
 
 Deanries and prebends are a holden, in op- 
 
 poiition to the authority of fir Edward Coke, 
 to be fmecures, that is, preferments not 
 having, locally, the cure of fouls. It feems, 
 however, altho there has been fome con- 
 troverfy, the better opinion, that a deanry b is 
 intirely a fpiritual office and promotion, and, 
 as fuch, fubjecT: to the vifitation and control 
 of the ordinary c , or ecclefiaftical fuperior. 
 
 * Watf.e. xliv. 2 Burn, eccl. law, 99 102. (Svo.ed. 1767.) 
 
 *Watf. c. ii. fc 2R. A. 229. 341, 
 
 e " OrJinarius (fays fir Edward Coke, I Inft. 344. a.) is he 
 that hat4i ordinary jurifdi&ion in caufes ecclefiaftical, immediate 
 to the king and his court of common law, for the better execu- 
 tion of j a (lice, as the bifhop or any other that hath exempt and 
 immediate jurifdiHon in caufes ecclefiaftical." The king i* 
 ftiled fupreme ordinary. (Watf. c. xvil) 
 
 The
 
 L EOT. ii* of the church t Gfr. 307 
 
 The deans and chapters of various cathe- 
 drals have various degrees of ecclefiaftical ju- 
 rifdidlion. Sometimes alfo the members, 
 who compofe this body, have a portion of lo- 
 cal j urifdi&ion individually, with a power 
 of appointing a commiffary, for the probate 
 of wills, or the like : but this branch of ec- 
 clefiaftical authority cannot d be demifed to 
 the farmers or tenants of a prebendal eftate* 
 Such portion of jurifdiclion is what properly 
 confers the title of dignitaries c . In like man- 
 ner, their revenues are either poffefled by 
 them jointly and indifcriminately, or are an- 
 nexed to the deanry, or to a particular canon- 
 ry or prebend ; and in either cafe their power 
 of leafing is, by the feveral ftatutes relating 
 thereto, put under proper reftraints for the 
 
 By the laft f ftatute of uniformity, all per- 
 fons having ecclefiaftieal promotion, ( * except 
 trie regius profeflbr of civil law in the univer- 
 fity of Oxford) muil fubfcribe a declaration 
 of their conformity to the liturgy of the 
 church of England, and muft have been epif- 
 
 * T. Raym. 88. 
 
 I Cro. 663. Watf. c. ii. Gibf. cod. t. viii. c. 2. 
 
 f St. 13 & 14 C. II, c. 4. 8, 13,14. 29. 
 
 X 2 copally
 
 308 Of the prelates LECT. n. 
 
 copally ordained priefts. The h refidence, 
 and other ecclefiaftical duty of deans, canons, 
 and prebendaries, is partly regulated by their 
 local cuftoms and flatutes, partly by the 
 Englifh canon law, and partly by fome few 
 acts of parliament. In a l late cafe, concern- 
 ing the repairs of a prebendal houfe, it was 
 holden, that an action lay for dilapidations in 
 this, as in the inflance of parochial benefices; 
 and the local ftatutes, which directed the ge- 
 neral body to provide the materials for fuch 
 repairs, were to be of conclufive authority. 
 It j has likewife been recently determined, 
 that, where the election is (as commonly) in 
 the dean and chapter, a mandamus will iflue 
 to compel an election to a vacant canonry : 
 that the dean has no calling voice ; and that 
 the canons may vote by proxy: that there is 
 no kpfe to the bifhop of a vacant canonry; 
 and that k he cannot prefent to fuch prefer- 
 ment, in default of an election in proper time, 
 by virtue of his vifitatorial authority 1 . 
 
 As 
 
 b Burn, eccl. law, t. deans and chapters, and t. refidence. 
 1 a Durn. Sc Eaft 630639. J i Dura. & Eaft 652. 
 
 k i Durn. & Eaft 650 653. 
 
 1 There was no dean and chapter of the epifcopal church of 
 Norwich toll the thirtieth year of H. VIII. when that king con- 
 verted
 
 I,ECT. ir. of the church, &c. 309 
 
 As to archdeacons, and chancellors of dioccfes t 
 thofe ecclefiaftical dignitaries having before 
 been fpoken of in refpeft to their judicial ma- 
 
 giftracy, little more occurs to be mentioned 
 
 , 
 concerning them. 
 
 Laftly, therefore, rural deans are ecclefiaf- 
 tical officers of great antiquity, their duty be- 
 ing principally to give attendance at the bi- 
 fhop's court, and to prefent offences, as ap- 
 pears by their m oath. Their * miniftration 
 was temporary, they being fubjecl: to amo- 
 tion by the bifhop or archdeacon refpeclively, 
 whom they afljfted; and their appointment 
 did not, like a benefice, require canonical in- 
 ;flitution. Thefe rural deans alfo held their 
 chapters, at which the archdeacon was by ca- 
 non enjoined frequently to affifl \ fo cautious 
 and exact was the antient polity of the Eng- 
 lifh church. Tfhe p ofFjce of rural dean was 
 
 verted the priory there into a deanry and chapter, and incor- 
 porated the new dean and chapter, and granted them all the 
 pofleffions of the priory. (Coin. 499. 3 Co. 73.) Hence 
 that monaftery is not mentioned in the lifts, fet forth by 
 Burn and Ayliff; of thofe difTolved by ftatute pafled the very 
 following year, which catalogues are reforted to in inquiries 
 concerning exemptions from payment of tithes. 
 
 m Barn, eccl. law, t. deans and chapters, 6. 
 
 n Lynd. prov. 14.79. 327. 
 
 Conft. Othon. with Athon's comm. 52, 53, 54. 
 
 F Burn, eccl. law, t. deans and chapters, $ 6. 
 
 X 3 greatly
 
 310 Of the prelates, &c. i E c T . 1 1 , 
 
 greatly funk into difufe even before the 
 reformation, and there have been very few 
 attempts to revive it in practice and autho- 
 rity. 
 
 Concerning thefe fuperiors of the clerical 
 order, I mail only fubjoin, that for the go- 
 vernment of the church and the correction of 
 offences, vijitations q of parimes and diocefes 
 were instituted in early ages, and are ftill hoi- 
 den at fit feafons, by the archbimops, bifhops, 
 and their fubftitutes. But the canons and 
 rules relating to this fubjet do not feem ne- 
 ceflary to be enlarged upon in this courfe of 
 ftudies. I mail therefore here clofe my acr 
 count of the prelates and others in the more 
 exalted ilations of the church, and mall in 
 the next lecture treat of that venerable body 
 pf men, the parochial clergy. 
 
 * Burn, eccl. law, t. vifitation. 
 
 LEG-
 
 LECTURE: xji. 
 
 Of the parochial clergy. 
 
 IN the prefent lefture I propofe to treat 
 of an order of citizens, highly refpecl- 
 able for number, piety, learning, and merito/- 
 rious labours, the parochial clergy of this land. 
 Thefe may be methodically diftinguiflied ac- 
 cording to the feveral kinds of preferment, 
 which they refpedlively hold, as rectors or 
 parfons, vicars, and others. 
 
 I. A parfon, according to legal propriety 
 ef fpeech, is the ecclefiaftical, or fpiritual, 
 rector of a redlory ; and he is inverted with 
 the former appellation, becaufe perfonam gerit 
 ec.clcfie t being feifed for his life of the perma- 
 nent inheritance of the church, which he re- 
 prefents, and whofe rights he is to maintain. 
 
 X 4 Both
 
 3*2 Of the parochial clergy. L E c T . 1 2 , 
 
 Both * a parfon and vicar are reputed in law, 
 o/,theAm^> of the church and their fuc- 
 cclTorSj to have a fort of qualified inheritance, 
 but only an eftate for life, as to any ats that 
 mi$tf: prejudice the next incumbents. A par- 
 fon is in titled to all the ecclefiaftical rights 
 and dues of his church, by the general im- 
 plication and intendment of the law, without 
 particular proof or evidence ; and thofe others 
 mufl mew any feverance or appropriation, 
 who would avail themfdves of it. Thefe 
 rights are the tithes great and fmall, (of which, 
 I mall difcourfe as a fpecies of incorporeal 
 hereditaments) oblations, and fome land. A 
 rectory b cannot fubfifl without land j but for 
 this purpofe the church and churchyard are 
 fufficient, and it is not necefTary, in order to 
 prove a rectory, to mew that there is any 
 other glebe belonging to it. For the free- 
 hold of the church and churchyard mufl be 
 in fome perfon, and it cannot be in the pa- 
 rochial inhabitants, who are not (to this pur- 
 pofe certainly) a corporation, and of courfe 
 not legally qualified to hold lands ; it is there- 
 fore adjudged to be in the parfon. He c only 
 
 ft. 341. a. fc i Sal. 165. -: Sal. 377. 
 
 2 Cro. 367. 
 
 can
 
 J,ECT, 12. Of the parochial clergy. 313 
 
 can grant licence for burials within the 
 church, and not the churchwardens, nor even 
 the ordinary himfelf. He is d in titled to the 
 profits of the churchyard, and may bring an 
 action for entering it as his clofe, or demife it 
 to a tenant. 
 
 The canon ifts fpeak c diftinftly of major es 
 ecclefice, as cathedrals, and minores, or parifh 
 churches and chapels. It is f faid, the king 
 may by his patent make a church and its en- 
 virons a cathedral. But this muft be under- 
 ilood reftriclively, where there is a bimop's 
 fee ; for E otherwife there cannot be a cathe- 
 dral. Lyndwood writes h , " circa ecclefiam 
 
 majorem 
 
 * 2 R. A. 377. An anonymous cafe (2>Sho. 184) ap- 
 parently contradicts this, as to the churchyard : perhaps what 
 is there laid down is. intended to be confined to London; but 
 that " churchwardens fhould have a right to the churchyard," 
 feetns inconfiftent with more than one principle of law. 
 
 ' Lynd. prov. 9. Gibf. cod. t. viii. c. 2. 
 
 f W. Jon. 166. K 2 And. 168. 
 
 11 Prov. 253. A man was indi&ed on the ft. 5 & 6 E. VI. 
 
 c. 4. for ftriking in St. Paul's churchyard : and he moved, that 
 being a cathedral church, it was not within the ftatute. But 
 
 the court ever -ruled the obje&k.n. (l Cro. 224.) It might 
 
 be very material to a defendant, whether the dimennon mould 
 be taken exactly according to Lyndwood, if that law, which is fo 
 penal, were to be rigoroufjy inforced : for befides being excom- 
 municated ipfofado, the offenders are liable to lofe one of their 
 ears, and " if they have none ears, to be marked in the cheek 
 with a hot iron and the letter F thereon, whereby they may be 
 
 known
 
 314 Of tfa parochial clergy. L E c T . 12. 
 
 majorem contineblt ccemeterium quadraginta paf- 
 fiiSy fed circa ecclejiam minorem continebit tri- 
 ginta paffus" If any other diftindlions, be- 
 fides thcfe, ever prevailed in England between 
 cathedral and other churches, they were not 
 perhaps very clearly fettled. As to the mlnores 
 ecclefia I mall farther obferve, that if 1 a place 
 of divine worfhip has the adminiftration of 
 the facraments and fepulture, it is in law 
 judged a church, and not a chapel belonging 
 to a mother church. But in order effectually 
 to exempt it from all dependence on a fup- 
 pofed mother church, it is material to inquire, 
 k for how long a period fuch immunities have 
 prevailed. This may be an important con- 
 troverfy to the redlor ; of whom I mall for 
 the prefent only farther remark, that * he is 
 
 intitled 
 
 known for fighters and fray-makers." (Burr. 240244) 
 The ftatute fays " excommunicated ipfofaflo," ftill there muft 
 be a fentence declaratory ; as if an acl fays a man mall fuffer 
 death. The cafe in i Vent. 146, is mifreported. Rep. B. R. 
 Hard. 190 193. 
 
 1 2 Intt. 363. k i Sal. 165. 
 
 1 2 R. A. 348. Hob. 149. 302. Mo. 606. i Cro. 775* 
 Watf. c. 14. ad fin ; where the fame is affirmed of a mere lay. 
 man, and it is faid, that perfons baptifed or married by him 
 need not be re-baptifed or married again. But now, if it were 
 poffible, that a layman mould by fraud be indufted reftor, I 
 apprehend, that, fince the ft. 13 & 14 C. II. c. 4. 13, 14, the 
 proceedings conftituting him fuch, would be confidered as nulli- 
 ties, and that he would not be entitled to tithes, nor his adls valid. 
 
 Tfcc
 
 L E c T . 12. Of the parochial clergy* 3 1 5 
 
 intitled to his tithes, as being after induction 
 in complete pofTeffion of the benefice, tho 
 admitted on a wrongful and illegal prefenta- 
 tion, or tho wholly inefficient and illiterate, 
 for he is a parfon defafto, and the acts creat- 
 ing him fo are not mere nullities. 
 
 II. The origin of vicarages is attributed to 
 the ingenuity of the monks, as a means of 
 advancing the revenues of the corporate fo- 
 ciety. For when a religious houfe were the 
 patrons of an advowfon, they appropriated to 
 themfelves the principal emoluments, and gave 
 a fcanty allowance to the officiating minifter 
 of the church, it m not being then necefTary, 
 that he mould be provided for by a flable, 
 permanent, endowment. But by the ftatutes 
 15 R. II. c. 6. & 4 H. IV. c. 12. in cafes 
 of " appropriations, fome fecular perfon (that 
 
 is, 
 
 The cafes cited above, and in the work bearing Dr. Watfon's 
 name (fuppofed however to be written by Mr. Place, of Gray's 
 Inn, 2 Wilf. 295) are prior to the flatute : which, it is furprifing, 
 .the learned author of that valuable work Ihould not have confi- 
 4ered. Therefore, fo far as refpc&s laymen, the do&rine, I 
 fcppofe, muft be rejected. 
 
 ,f(j ra z Rol. 99. 
 
 -ifJur" By thefe ftatutes, in appropriations, provlfion was to be 
 made for the poor, as well as for the vicar. It feems appropri- 
 ations,
 
 216 Of the parochial clergy. LECT. J2 f 
 
 is, not a regular or profefied monk) is to 
 be canonically in touted and inducted vicar, 
 with a competent and durable endowment. 
 Thefe laws might have been fraudulently 
 evaded, had the monks remained at liberty to 
 constitute one of their own body vicar ; and 
 therefore the parliament very providently en- 
 acted, that it fhould be a fecular prieft. The 
 mode of endowment is not pofitively pre- 
 fcribed ; but it has ufually been made by af- 
 iigning the fmall tithes for that purpofe, 
 Such endowments of vicarages are not within 
 the reftrictions of the ftatutes of mortmain : 
 they may be effected by the concurrence of 
 the ordinary, patron and parfon, without the 
 king's licence or aflent. For tho the new vicar 
 becomes a corporation fole, he becomes fo 
 by the common law, and therefore does not 
 
 ad); ,/asr r 'W9b',i.5? aV Isj.JhybfrbY.. Vijs 
 
 ations, by obtaining the king's licence, and complying with the 
 other requifites, may ftill legally be made, in favour of an eccle- 
 iiaftical corporation fole or aggregate. (Watf. c. xvii.) But 
 fuch unreafonable alienation of dues from the officiating incum- 
 bent is not likely to take place. The two ftatutes are faid to 
 relate only to appropriations fubfequent to their date, (z Rol. 
 99. Pal. 222.) Therefore the fmall as well as great tithes 
 may be generally claimed by an impropriator, where there^ is 
 no trace of an endowed vicarage. But he is perhaps compel- 
 labls to affign a portion of the fmall tithes towards the main- 
 tenance of an officiating prieft. (i Vern. 247. Yearb. 
 jtH,VI. 14. a.) . , v 
 
 Pal. 427. zR. A. 334. Watf. c. xvii. 
 ^TObc 4 , 
 
 9 need
 
 tfccf . 12. Of the parochial clergy. $ t 7 
 
 need a licence to take in mortmain. The 
 vicarage, being thus, with the confent of the 
 proper parties, endowed, becomes a diftinct 
 benefice, in the ' gift or patronage of the irn- 
 propriator. For the inheritance of the im- 
 propriation regularly draws with it the patro- 
 nage to the vicarage; that is, of common 
 right, and where nothing appears to the con- 
 trary : and farther, where there is a reftor and 
 vicar in the fame church, the patronage of 
 each benefice refpedtively may be in the fame 
 or different hands. 
 
 Jj * V<n* r * Jt 
 
 The * vicar, independently of any endow- 
 ment, or of r prefcription, (which fuppofes an 
 endowment and fupplies its place) can claim 
 nothing at law againfl the reftor. But ' he 
 may by prefcription in title himfelf to tithes 
 not nominally included in an endowment, the 
 ufage being admitted as a mode of conftruing 
 fuch inftrument. And* if the conteft be be- 
 tween fpiritual perfons, it ought to be tried 
 
 * Watf. c. xvii. Pal. 212 : and fee Gibf. cod. t. xxx. c. 13, 
 
 as to what he fays are improperly termed flnecure rectories. 
 
 * Pal. 426. Str. 87. 
 
 r Gibf. cod. t. xxx. c. 13. Burn, eccl. law, t. appropriation, 
 $a. n. 
 
 * Hard. 329. * Str. 87. See Rep. B. R. Hard. 203. 
 
 before
 
 . . 
 
 318 Of the parochial clergy i LECT< 
 
 before the fpiritual, not the common law, 
 judge. But, it feems, a court of equity would 
 
 entertain a fuit, touching the conftru&ion 
 
 ^ . 
 
 of a vicarial endowment, without any re- 
 flraint. 
 
 , . . . 
 
 As to the augmentation of vicarages, it is 
 
 u laid down, that in all appropriations a power 
 is referved to the ordinary to increafe the 
 maintenance of the vicar. It is elfewhere* 
 more cautioufly afTerted, that fuch authority 
 may be exercifed, either where pofitive con- 
 fent is given, or only after due notice, cita- 
 tion, and non-appearance of the proper par- 
 ties: but there is no intimation what allega- 
 tions to the contrary may be urged and prevail. 
 Bimop Gibfon y firft confiders it as fettled, 
 that fuch power refides in the ordinary, in 
 refpeft to fpiritual impropriators ; andthe n 
 forcibly argues in favour of the fame jurifdic- 
 tion as againft lay impropriators. Yet he af- 
 terwards admits, that the contrary doctrine is 
 peremptorily delivered in books of common 
 law, all impropriate tithes (efpecially in the 
 hands of laymen) being lay fees, and exempt 
 
 " 2 R. A. 337. * Hard. 329. r -Gibf. cod. 
 
 t. xxx. c. 14. rH * 
 
 from
 
 LICT. 12. Of the parochial clergy. 319 
 
 from fpiritual jurifdiftion. And it is,.Ibej? Jf 
 lieve, the received opinion, that * no fupji ;T . 
 compulfory power of augmenting vicarages 
 exifts by law, in refpeft either to fpiritual or 
 lay impropriators. 
 
 I am led therefore to confider another very 
 different mode of augmenting the poorer be- 
 nefices, proper here to be commemorated, 
 mean that pious and well judged ad; of mu- 
 nificence, called a " queen Ann's bounty," 
 
 ,"*_: 'J - .. ; ]~)il. '-'Jjii \ji J^J ^JlOil^ 
 
 That queen, foon after her acceffion, gave 
 up the revenue of firft fruits and tenths for 
 the augmentation of fmall livings; which 
 truft is now regulated by feveral acts of parlia- 
 ment. The principal (landing rules of this in- 
 ftitution are in fubftance as follows : that b two 
 hundred pounds be the ftated fumfor augment- 
 ing each cure, to be inverted in a landed pur- 
 chafe, and not placed out at intereft, in order 
 that fuch intereil might be paid by way of pen - 
 
 2 Vent. 35. Burn, eccl. law, t. appropriation, 3. If 
 there remains any doubt, it is in the cafe of an appropriation 
 in fpiritual hands, and which did not come to the king by the 
 ilatute of monafteries, 31 H. VIII. c. 13. (z R. A. 337. 
 3 Sal. 378.) 
 
 St. 2 & 3 A. c. ii. 
 
 * Burn, eccl. law, t. firft fruits and tenths, 4. 
 
 jion:
 
 3o Of the parochial clergy. LECT. 12. 
 
 lion : that generally the fmalleft livings be firft 
 augmented; but that the aforefaid fum may be 
 applied in augmentation of any living under the 
 yearly value of forty- five pounds, in cafe any 
 benefactor will give that or a greater fum for 
 the fame purpofe : that where feveral benefac- 
 tors offer, the governors mall comply with 
 thofe that offer moil; and where the benefac- 
 tions offered are equal, they fhall give the pre* 
 ference to the poorer living. 
 
 Vicarages may be diffolved, or re-united to 
 the parfonage, either by exprefs act, or by im- 
 plication of law* 
 
 i. If the c impropriation is in lay hands^ 
 the vicarage cannot be diflblvedj for that 
 would be to deftroy the cure* But if a d 
 vicarage is to be diffolved for the purpofe of 
 "being re-united to the parfonage prefentative^ 
 fo as to form one ecclefiaftical benefice, this 
 may be done by the ordinary, patron, and 
 parfon, either during an avoidance of the vi- 
 carage, or to take place after the then incum- 
 bency, and it may be effected without the 
 
 e 2 Cro. 518. 
 
 Gibf. t. xxx. c. 13. Watf. c. xvil. 2 Cro. 518. 
 
 king's
 
 
 IECT. 12. Of the parochial clergy* 
 
 king's licence. As to diffolving vicarages for 
 the benefit of a fpiritual corporation aggre- 
 gate, being the impropriators thereof, this" 
 required a fuggeftion of their being poor, 
 and wanting fuch refKtution. I have met, 
 however * but with two f inftances of this be- 
 ing allowed; in both the impropriation was 
 prior to the ftatutes of Richard the fecond and 
 Henry the fourth, and therefore exempt 
 from thofe provifions : the latter determina- 
 tion feems clearly founded on that principle. 
 If fuch kind of dhTolution could now by any 
 means be completed, it would g certainly re- 
 quire the king's concurrence, as he would 
 thereby lofe the poflibility of lapfe. But it 
 oppugns the expremons and fpirit of the fla- 
 tute h of Henry the fourth ; by which a per- 
 petual 
 
 e Watf. ibid. ; and it is fo ftated in the cafes infra. 
 
 f Ley 14, 15. 2 Cro. 515 &c. 2 Rol. 97 &c. 127. 
 The like had been allowed according to one cafe, (cited 2 Cro. 
 518.) where the impropriation was fubfequent to the two ftatutes 
 in favour of a dean, who, as a fpiritual perfon, might attend the 
 cure. But this is contrary to the opinion at leaft of two juftices 
 in the cafe (2 Rol. 127) before alluded to. 
 
 * 2 Cro. 518. 
 
 h It appears. (Pal. 222) that the petition and anfwer, on 
 which this ftatute was drawn up, were gtneral, " that there 
 fhould be no diffolution of vicarages." This law is a confir- 
 mation of that of R. II } for the paffing of which the commons 
 of the realm were very earned j (Gibf. cod. t. xxx..c. 13.) 
 and the year after enacting the ftatute of Henry the fourth,
 
 322 Of the parochial clergy. L E c T . 12. 
 
 petual vicar is to be conflituted. And fuch 
 proceeding is fo remote from probability, and 
 liable to fo many obflacles, that thefe few no- 
 tices concerning it muft rather appear as a 
 refearch into juridical antiquities, than an ex- 
 pcfition of the prefent laws. 
 
 2. Vicarages are ! implledly and virtually 
 difTolved, or re-united to the parfonage, (and 
 the latter becomes difappropriated, or there 
 remains but one ecclefiafUcal benefice) where 
 the parfon appropriate, who is patron of the 
 vicarage, with the concurrence of the ordi- 
 nary, prefents the vicar to the parfonage, or 
 where he prefents to the vicarage by the name 
 of parfonage : which mews that the Englilh 
 laws anxioufly catch at opportunities of re- 
 ftoring ecclefiafKcal dues to the officiating 
 incumbent. 
 
 The mode of a clergyman's acquiring com- 
 plete pofleffion of a rectory or vicarage is by 
 prefentation, inflitution, and induction, the 
 
 they petitioned to have it enlarged : (2 Rol. 99.) fo attached 
 were they in thofe days to the parochial clergy, in oppofition to 
 the avarice of the monks ; but that application failed. 
 1 2 R. A. 338. 
 
 ceremonies
 
 t E c T . 1 2 . Of the parochial clergy* 323 
 
 ceremonies whereof are not neceflary to be 
 here defcribed. Where the biihop is patron 
 as well as diocefan, as he cannot properly be 
 faid to prefent to himfelf a perfon to be infli- 
 tuted, the two afts are included in one called 
 " collation." 
 
 Dr. Burn k has given us art account of the 
 jufl and allowed caufes for which a bifhop 
 may legally reject a clergyman prefented to 
 him for inflitution. To this detail we mufl 
 now add, it feems, fmce a late ' determination 
 in the houfe of lords, as another fufficient 
 caufe of rejection, the having entered into a 
 bond to the patron, conditioned to refign at 
 his requefl, which is called a general refigna- 
 tion bond, and according to that adjudication 
 is prohibited by the flatute " againfl fimoniacal 
 contracts. 
 
 Both antient canons and acts of parliament 
 provide againfl the non-refidence of beneficed 
 clergymen, and againfl pluralities. 
 
 k Eccl. law, t. benefice, fubdiv. refufal. 
 
 1 Bifbop of London v. Ffytchc, Houfe of lords, 30 May, 
 
 1785- 
 
 " 31 El. c. 6. 
 
 Y 2 i. The
 
 324 Of the parochial clergy. LECT. 12. 
 
 I. The pecuniary forfeitures incurred by 
 rion-refidence, according to the ft. 21 H. VIII. 
 c. 13. 26, may be fued for by any common 
 informer, and half of them will accrue to 
 his own benefit, the other half to the king. 
 It is no n excufe, that the incumbeflt refided 
 within the pariih, if it was not in the par- 
 fonage houfe. And, if there is no parfonage 
 houfe, that affords no indemnity for refiding. 
 out of the parim. A farther confequence of 
 non-refidence by a rector for eighty days in 
 one year, is that, by another ftatute p , it ren- 
 ders utterly void a leafe made by him, and 
 * unavailable even againft a ftranger and 
 wrongdoer : and fuch leafe r is vacated by non- 
 refidence, tho the living is under fequeftra- 
 tion. It muft be added, that the ftatute of 
 Henry the eighth does not fupercede or affect 
 the ordinary's jurifdiction', who may ftill, in 
 purfuance of the canon law, inforce the re- 
 fidcnce of incumbents by ecclefiaftical cen- 
 fures, and even by deprivation. This indeed 
 is made a queftion and difputed by fome, who 
 infift, that in animadverting on non-refidence, 
 
 " Burr. 2722 &c. Cowp. 429 &c. P St. 
 
 13 El c. 20. i 2 Burn. & Eaft 749, 750. * Cowp. 
 
 129, 130. * Gibf. cod. t. xxxvi. c. x. 
 
 the
 
 L E c T . 12. Of the parochial clergy. 325 
 
 the act of parliament only, and no other 
 courfe ought to be puriued ; but Dr. Burn * 
 judiciouily maintains the contrary opinion; 
 and it would be very flrange that the jurif- 
 di&ion of the ordinary, (the conflitutional 
 jeftablimment of the church) mould, in this 
 important point, be fuppofed, without exprefs 
 words, to be overthrown. 
 
 Rectors "are bound to refidence by the an- 
 tient canon law, fully received as to this par- 
 ticular in England : but the doubt was whe- 
 ther vicars were included in thefe provifions. 
 Therefore, after other expedients had failed, 
 by a legatine conftitution of this realm, vi- 
 cars are to be fworn to refide, unlefs they ob- 
 tain a difpenfation. But rectors, tho not 
 fworn, are under the like obligation of refi- 
 dence, and equally fubject both to the co- 
 ercion of the ftatute, and to the authority of 
 the ordinary. 
 
 2. In refpect to pluralities, I mall firil ob- 
 ferve, that by the ftatute x of Henry the eighth 
 
 1 Burn, eccl. law, t. refidence. 
 
 u Bifhop Sherlock's charge to his clergy, A, D. 1759, 
 20 &c. - 
 * 9. 
 
 Y 3 above
 
 326 Of the parochial clergy. L E c T . 12. 
 
 above cited, it is enadted, that, if any perfon 
 having one benefice, with cure of fouls, of 
 the yearly value of eight pounds, or above, 
 (that y is according to the valuation in the 
 king's books of firft fruits and tenths) accept 
 another benefice with cure of fouls, and be 
 inftituted and inducted in poffeffion of the 
 fame, without having obtained a fufficient dif- 
 penfation, the former benefice is z immediately 
 void, not in law only, but in fad: alfo ; fo that 
 the patron thereof, without the delay or trou- 
 ble of any formal procefs, may prefent to it 
 de novo : but it feems, the bimop cannot col- 
 late to it by lapfe, without giving notice to the 
 patron. 
 
 The granting of difpenfations is not arbi- 
 trary : certain qualifications are, by the fta- 
 tute lafl referred to, necefiary to receive them; 
 and it feems % if they are framed for holding 
 three incompatible benefices with cure of 
 fouls, they mall not be available for the pur- 
 pofe of holding only two of them -, the fcope 
 pf fuch inflruments being illegal, they are ab^ 
 
 T Watf. c. ii. 
 
 Watf.c. ii. 2 WilC 174201. Burr. 15041512. 
 
 Hob. 158. 
 
 folute
 
 L E c T . 12. Of the parochial clergy. 327 
 
 folute nullities. But b as to dignities and pre- 
 bends, and benefices without cure, the re- 
 ftriclion is by canon law, and not by the ftatute : 
 of thefe a man may hold any number, of any 
 value, by difpenfation, and is capable of fuch 
 difpenfation, altho not qualified for that pur- 
 pofe by any of the requifites mentioned in the 
 adt of parliament. Any c number of benefi- 
 ces alfo with cure of fouls may be holden, all 
 of them, or all except the laft, being under 
 the value of eight pounds in the king's books. 
 But d by the forty-firft canon of thofe made 
 in the year 1603, the perfon obtaining a dif- 
 penfation of this kind ought to be a matter 
 of arts of one of the e univerfities, and the be- 
 nefices muft be within the diflance of thirty 
 miles from each other. 
 
 By the ftatute f againft fimoniacal contracts, 
 the corrupt prefentation to benefices, and al- 
 fo the corrupt resignation or exchange of 
 them, are guarded againft by forfeitures and 
 
 b Lynd. Prov. 135. St. 21 H. VIII. c. 13. 31. 
 
 * Watf. c. ii. & iii. d Gibf. cod. t. xxxvii. c. i. 
 
 e The words are " one of the univerfities of this realm," 
 meaning England ; but fince the union, that expreffion would 
 be incorreft. 
 
 '31 El. c.6. 
 
 Y 4 difabilities.
 
 * 2 8 Of the parochial clergy . L E c x . 12. 
 
 difabilities. Whether a bifliop is compellable, 
 and by what means, to accept of an incum- 
 bent's refignation, are queftipns up fettled, and 
 difficult to determine. 
 
 III. The next fort of benefices I /hall men- 
 tion, are called " donatives*-" which may be 
 fuch rectories or vicarages, churches or cha- 
 pels, prebends or chantries, as are allowed to 
 be filled by the free gift and collation of 
 the patron, without inftitution or induction 
 by any other authority. Such donatives are 
 exempt from the jurifdiftion of the ordinary, 
 and are fubjeft to the vifitation of the patron, 
 by commiffioners to be appointed by him: 
 and he, not the bifhop, may accept of any 
 fuch incumbent's refignation. The right 
 originated from having erected and founded 
 the churches, chapels, and other preferments, 
 which were thus donative. But inftitution 
 to ecclefiaftical benefipes by mere laymen, 
 gave great offence to the pope, and thofe who, 
 Were mo ft attached to his' fovereignty. A 
 * conftitution, therefore, of the provincial 
 
 * 
 
 I Inft. 344. a. 
 
 frov. Qonft. ad fin. Lynd. Prov. 17. 
 
 council
 
 L E c T . 1 2 . Of the parochial clergy. 329 
 
 council of Lambeth, holden under Boniface 
 archbimop of Canterbury, about the year 
 1260, is levelled againft this practice, and is 
 inforced by the terrors of excommunication. 
 But the exercife of thefe rights has never 
 been overthrown : and * if the ordinary af- 
 fumes vifitatorial power over a donative, he is 
 liable to be retrained by the writ of prohibi- 
 tion. But the king's k bench will allow the 
 eccleliaftical judge to cenfure the incumbent 
 of a donative for herefy and fpiritual offences, 
 tho not to proceed to deprivation. For he is 
 perfonally liable, as a member of the eccle-~ 
 fiaftical body, tho exempt as to matters relat- 
 ing to his church, fo as not to be deprived by 
 the ordinary. And tho the benefice is ex- 
 empt from the visitation of the ordinary, as 
 to the regulation of feats in the place of wor- 
 fliip, or the like, the patron himfelf is not 
 entirely fo ; for he may be compelled to 
 collate fome clerk to fuch donative adowfon, 
 that there may not be a defect of divine wor- 
 fhip, But donatives m are not fubject to lapfe, 
 except it is fo provided and ordained in the 
 foundation of them, or they have n been, 
 
 1 i Mod. 90. * J,ord R^ym. 1205, 6. * Yel. 61. 
 
 * i Inft. 344. a, * St. i G. I. ft. 2. c. 10. 14, 15. 
 
 with
 
 33 Of ^ Je fwoctua/ clergy L E c T . 12. 
 
 with the patron's confent, augmented by 
 queen Ann's bounty; in which cafe they are 
 reduced under the vifitation and jurifdiction 
 of the ordinary. Indeed lir Edward Coke * 
 afTerts, that if the patron, in any one inftance, 
 prefents his clerk to the bifhop for institution 
 to fuch kind of preferment, it becomes ever 
 after prefentable, and no longer a donative, 
 and lapfe will incur as in other benefices; 
 but this feems contradicted by later authori- 
 ty p . Donatives, if they have cure of fouls, 
 are within the reftraint of the flatute before 
 referred to, q concerning fimony, and that 
 concerning r pluralities; that is, if a man, 
 having a donative above the value of eight 
 pounds in the king's books, is instituted and 
 inducted into a living without a difpenfation, 
 the former feems void : but if the donative is 
 the fecond preferment taken, the living would 
 not be void within the words, " inftituted 
 and inducted," contained in the flatute, and 
 which are not applicable to donatives. Altho 
 there is no induction to donatives, as to com- 
 mon livings, (which is analogous to livery of 
 
 feifin in landed eftates) yet thefe preferments, 
 
 \ 
 
 i In ft. 344. a. r a Sal. 541. * 3 Cro. 331. - 
 
 'Dcg. p. i. c. 13. 
 
 like
 
 L E c T . 1 2 . Of the parochial clergy. 331 
 
 like re&ories and vicarages, intitle the poflef- 
 ibrs of them to vote for knights of the {hire. 
 But if a man hath a donative prebend in a 
 cathedral in one county, endowed by lands 
 in another county, it might be a queftion in 
 which of the two fhires his right of voting 
 Should fubfift. 
 
 IV. There is another fort of eccleliaflical 
 benefices, called "perpetual curacies," which* 
 feem to have been introduced originally, 
 without much regard to notions of juft pro- 
 priety or of law. In a ' caufe depending in 
 chancery concerning the chapel of the coun- 
 ty town of Flint, it feems fettled, that a place 
 of divine worfhip, having parochial rights, 
 as particularly thofe of baptifm and fepulture, 
 is a perpetual curacy, of which the incumbent 
 is not removeable at pleafure by the relor 
 or vicar of any fuppofed mother church. 
 
 V. As to temporary curates, the fubftitutes 
 of beneficed incumbents, it will be eafily fore- 
 feen, that there are but few legal obfervations 
 
 2 Burn, eccl. law, 53. (Svo.cd. 1767.) * 2 Vez. 425 429. 
 
 to
 
 33 2 Of the parochial clergy. LECT. 12. 
 
 to be made. Both u perpetual and temporary 
 curates ought to be licenfed to preach by the 
 diocefan ; for it is injoined, not only by the 
 thirty- fixth canon of thofe made in the year 
 1603, but w by the ecclefiaftical law of Eng- 
 land prior to that time : and a mandamus x 
 will lie to the bifhop to grant fuch licence, if 
 it be refufed without juft reafon. But r it is 
 in the difcretion of the king's bench to grant 
 or refufe fuch mandamus : and that court 
 will reject the application, where there are 
 two claimants of the fame perpetual curacy, 
 becaufe each has another fpecific remedy by 
 quare impedit. In the cafe alfo of a donative % 
 the grantee is in full poffeffion by the nomi- 
 nation, and there feems no need or ufe of a 
 mandamus, for a licence to preach, either 
 to authorife the fpiritual functions, or to en- 
 able him to take the profits. 
 
 It may here be added, in regard to tempo- 
 rary curates, that in order to recover the fum 
 fpecifically agreed upon, or fome other juft 
 and proportionate .compenfation, for the ex- 
 
 * Gibf. cod. t. xiv. c. a. i jDurn. & Eaft 401. n, 
 
 w Lynd. Prov. 288, 9. * Lord Raym. 1206. 
 
 X i Durn. & Eaft. 396405. * Ibid. 403. 
 
 ercife
 
 L E c T . 1 2 . Of the parochial clergy. 333 
 
 ercife of their facred functions, they may 
 maintain againft the rectors or vicars, who 
 employ them, an action of ajjumpfit, of which 
 I mail treat at large hereafter, and of which it 
 may at prefent be fufficient to obferve, that it 
 is an eafy and compendious method of reco- 
 vering their demands. 
 
 By the thirty-third canon of thofe made in 
 the year 1603, bifhops are bound to main- 
 tain, or promote to fome preferment, fuch 
 perfons as they mall ordain, not having a fuf- 
 ficient title t that is, not being provided with 
 fome ecclefiaftical benefice or curacy, nor be- 
 ing maflers of arts of five years {landing, nor 
 fellows of fome college, or the like. In cafe 
 of a bimop's refufmg to comply with this in- 
 junction, the archbimop, affifted by another 
 bifhop, may even fufpend the prelate fo re- 
 futing from his power of ordination for one 
 year. It has been determined a , that if a rec- 
 tor gives a title y that is, fignifies in writing to 
 the bifhop the appointment, as curate, of the 
 perfon to be ordained, at a certain falary, un- 
 til he mail be otherwife provided of fome ec- 
 clefiaftical preferment, fuch rector cannot re- 
 
 Cowp-437 445. 
 
 move
 
 334 Of ^ }C ptwdM clergy. L E c T . 12. 
 
 move fuch curate at pleafure and without juft 
 caufe ; and the latter may maintain an action 
 of ajjumffit for the arrears of his ftipend. 
 
 VI. Laftly, there are befides in fome pa- 
 rimes certain officiating minifters called b " lec- 
 turers" and others called " clerks in orders" 
 fome of whom celebrate divine fervice in pa- 
 rim churches, and fome at chapels unendowed, 
 and which do not therefore fall under the de- 
 fcription of donatives. Of thefe I mall ob- 
 ferve, that, if they have fixed falaries, not de- 
 pending on voluntary contributions, it feems 
 they may be admitted c or reftored to their fic- 
 tions, when wrongfully kept out, by a writ of 
 mandamus, grantable by the court of king's 
 bench, like perfons claiming a civil office. As 
 to the officiating minifters of unendowed 
 chapels, it is clear, they are liable to be cited 
 into the ecclefiaftical court, to take out the 
 bimop's licence to preach. For on an ap- 
 plication for a prohibition to ftay fuch pro- 
 ceedings of the fpiritual judge, the motion was 
 
 b Burn, eccl.law, t. le&urer. 
 
 e 3 Sal. 87. Burr. 1877. See Str. 1192. Ca. B.R.temp. 
 
 Holt. 435. But if a parifh employ a regular prieft to read 
 
 prayers merely, and to continue in fuch employment during 
 pleafure, he wants no licence, he figns no articles, and the bifhop 
 cannot inhibit him. (Cowp. 444, 5.) 
 
 refufed,
 
 L E c T . 1 2 . Of the parochial clergy. 335 
 
 refufed, the place appearing to be an unen- 
 dowed chapel, and not a donative. 
 
 The rights and privileges by which our 
 laws have diftinguimed the ecclefiaftical or- 
 der, are, among others d , exemptions from 
 military fervices, from attending juridical bu- 
 iinefs, and from any fuch arrefts in civil fuits, 
 as might interfere with their celebration of 
 divine worfhip. The laying of violent hands 
 on clergymen fubjects the offender, as fir 
 William Blackftone obferves 6 , to three kinds 
 of profecution for the fame mifdemeanor. 
 
 Altho they are exempted from the neceffity 
 of ferving many, if not all, temporal em- 
 ployments, ftill they are capable of fuch em- 
 ployments, as to be juftices of the peace. 
 Thus f when the lords and commons peti- 
 tioned, in the forty-fifth year of Edward the 
 third, that all the great offices of flate mould 
 be filled by laymen only, the king's anfwer 
 
 d 2 Inft. 4. The court has refufed to difcharge a jurer, 
 
 who was ordained between the time of putting him on the panel 
 and the return of it. (4 Leon. 190.) But this manifefts the 
 general right. 
 
 '4JBlack.com. 217, 8. f 2 R. A. a 21. 
 
 * was,
 
 Of the parochial clergy. LECT. 12. 
 
 was, that " he would act as mould feem to 
 him beft by the advice of his council," which 
 was a mild non-compliance with the requeft 
 of paffing fuch a law. But clergymen are z 
 reftricted from exercifmg functions attended 
 with lefs dignity, and with no power or jurif- 
 diction, as traffic, and taking lands to farm. 
 
 Ecclefiaflical polTefiions are exempted from 
 the fherifFs power of levying thereout any 
 debt recovered by judgment, and a h writ to 
 the fame effect muft be directed to the bimop 
 of the diocefe. But clergymen ! - are perfon- 
 ally liable to all public charges, impofed by 
 act of parliament. 
 
 The popifh reftraint, againft clergymen's 
 contracting matrimony, extended even to fub- 
 deaconsJ, as well as to thofe in fuperior orders. 
 By a k flatute of Edward the fixth, at the era 
 of the reformation, the reflraint againft matri- 
 
 8 St. 2lH. VIII. C. 13. 
 
 h Str. 87. i WUf. 332. J I Vent. 273. 
 
 J Lynd. Prov. 128. Gibf. cod. t. xxii. c. 13. Yet thofe 
 
 under the rank of fubdeacon were called cleric:, and were dif- 
 tinguifhed by the name of pfalmijla, or the other appellations 
 before noticed : who being infra fubdiaconatum were in popiih 
 times allowed to marry. 
 
 *2&3 E. VI. C. 21. 
 
 mony
 
 L E c T . 1 2 . Of the parochial clergy. 337 
 
 mony was taken away from all ecclefiaftical 
 or fpiritual perfons of whatever condition of 
 degree. This law is inforced and confirmed 
 by a * fubfequent ftatute in the fame reign^ 
 which was pafled to remedy the mifchief re- 
 cited in the preamble, namely, that malevo- 
 lent perfons had taken occalion, from fome 
 expreffions in the former act* to reprefent the 
 marriage of priefts as permitted only to avoid 
 greater evils, and had flandered the offspring 
 of fuch marriages as baftards. But both thefe 
 ftatutes, and other laws eftabliming the re- 
 formation, were m repealed under queen Mary; 
 whereby, according to Dr. Burn", the clergy 
 were again brought under the fevere law of 
 Henry the eighth, making it very penal in them 
 to marry, though mitigating a ftill feverer 
 act p of the fame reign, by which it was de- 
 clared no lefs than felony j a reign, in which 
 more tyrannical ordinances we're pa/Ted, than 
 under all our other princes throughout the 
 annals of Englifh hiftory. Yet in queen Eli- 
 zabeth's time, the clergy feem to have con- 
 tracted wedlock without fcruple or fcandaL 
 
 i 5 & 6 E. VI. c. it. m St. i M. feff. 2. c. 2. 
 
 " Eccl. law> t. marriage, I. 32 H. VIII. c. 10. 
 
 . u * 8. 
 
 For
 
 33^ Of the parochial clergy . LECT. 12. 
 
 For the prohibition depended on a law 
 made for the re-eftablifhment of popery, and, 
 as the fame author above cited obferves, that 
 queen twice ratified the thirty-nine" articles, 
 which recognize the lawfulnefs of fuch mar- 
 riages. But Dr. Burn does not appear to 
 have obferved, that befides the queen's rati- 
 fication of the articles, they were, in refpect 
 at leaft to ecclefiafKcs, confirmed by the ft. 1 3 
 El. c. 12 : which therefore feems a clear abro- 
 gation of the difabling acts. At laft, how- 
 ever, the parliament, with great propriety, 
 again more explicitly interpofcd, and, by a 
 Mlatute of James the firft, revived and made 
 perpetual the fecond law of Edward the fixth, 
 and fo cleared the matter from all poflibility 
 of doubt. 
 
 2 J. I. C. 25. ^ JO. 
 
 LEG-
 
 [ 339 } 
 
 LECTURE xin, 
 
 Of the legal eft abUjhment of the national 
 religion. 
 
 TH E fubject of the two preceding dif- 
 courfes naturally leads us to give 
 fome attention to the laws which eftablifh. 
 and maintain the national religion. , 
 
 Such laws have in moil civilifed coun- 
 tries been efteemed a principal object of le- 
 giflative wifdom. The inititution of a 
 prieflhood, and of divine worfhip, is treated 
 by a Ariftotle as the firft political concern, 
 and necefTary to the very exigence of a flate. 
 Tlie fame philofopher directs b , that the mi- 
 nifters of facred rites iliould be ielefted, not 
 from nuihandmen or artificers, but from thofe 
 whofe years and former exploits intitle them 
 to a life of dignified repofe. This is plainly 
 
 ' a Polit. I. vii. c. 8. b Ibid. c. 9. 
 
 Z 2 with
 
 3 4 Qf f f je fcgd tftabUJhmeftt L E c T . 13. 
 
 \vith a view of inculcating that reverence and 
 authority, which the perfons and functions 
 of the priefthood, even among pagans, were 
 thought fo juftly intitled to, and which we 
 find univerfally paid them, as derived origi- 
 nally from divine right, and fubfequently 
 avowed by legal inftitutions. In that city 
 particularly, where the author I have cited 
 flourished, it is obfervable % that the archon, 
 who had the care of religion, retained the 
 name of king, as a fymbol of his power 
 and his fank> in the moil abfolute ftate of 
 democratic freedom. Amidft the concur- 
 rent teftimony of political and philofophical 
 writers, the fentiments of Plutarch on this 
 fubjecl: are too remarkable to be omitted. 
 After reciting that the firfb and greatefl care 
 of the antierit legiilators of Rome, Athens, 
 Lacedaemon, and Greece in general; was by 
 inftituting folemn fupplications and forms of 
 oaths, to infpire men with a fenfe of the fa- 
 vor or difpleafure of heaven, that learned hif- 
 toriari declares d , that we may meet with 
 towns unfortified, illiterate* without the con- 
 Veriiencies bf habitation or the like, but a 
 
 c Strozze politic. 1. x. fubjoined to Ariil. polit. 
 * Piut. Rualdi ed. vol. ii. p. 11254 
 
 people
 
 L E c T . 1 3 . of the national religion. 341 
 
 people wholly without religion, no traveller 
 hath yet feen : and a city might as well be 
 erected in the air, as a ftate be made to unite, 
 where no divine wormip is attended to : reli- 
 gion he therefore terms the cement of civil 
 union, and the efTcntia] fupport of legiflatipn. 
 
 That without this influencing principle 
 the ends of government could never be ef- 
 fected, and that by this they are mofl fuccef- 
 fully promoted, is too obvious to require 
 much elucidation. I fhall only remark, that 
 as it is the higheil civil wifdom to prevent 
 rather than punifh crimes, fo the moft eligible 
 mode of prevention is by giving every legal 
 help and furtherance to the caufe of religion. 
 Other means may alarm fear, abate tempta- 
 tion, fruftrate opportunity, or refift the power 
 of doing evil ; but this is to eradicate the in- 
 clination of being criminal; this is, at the 
 fame time, befl to confult the intereft of rhe 
 private individual, and of the whole com- 
 munity. 
 
 Befides the regular eftablimment of divine 
 
 worfhip according to law, great zeal has been 
 
 jfhewn in moft countries to keep the national 
 
 Z 3 ceremonies
 
 342 Of the legal eftablifamcnt L E c T . 13. 
 
 ceremonies free from innovation. Dr. Bent* 
 ley e recounts many inflancesof perfecutions in 
 vindication of the heathenifh idolatries > a rage 
 not to be juftified even in the caufe of truth, 
 but which proves the concern of the ftate in 
 maintaining the religious ordinances. The 
 Epicureans f , whofe tenets were fubverfive of 
 all piety and devotion, were expelled out of 
 many cities : and the Romans frequently for- 
 bad ftrange religions and foreign rites, that 
 had crept into their city, and banifhed the 
 authors of them. No nation, whofe hiftory 
 we are acquainted with, hath been neglectful 
 of inftituting, or of vindicating, this impor-r 
 tant part of polity, this invigorating principle 
 of government, peace, and order. 
 
 * 
 
 To fo general concurrence of diftant pe^ 
 nods and countries, we may add, with ap- 
 plaufe and fatisfa<ftion, the example of the 
 Englifh laws : which, in their different ages, 
 have been diligently attentive to advancing 
 the profperity of the national church, and 
 checking the growth of irreligion. If we 
 look into remote times, we find thefe maxims^ 
 
 e Phileleutherus Lipfienf. remark 41. 
 f Grot, de j. b, & p. 1. ii, c . 20. 46. 
 
 that
 
 L E c r . I 3 . of the national religion. 3 43 
 
 that " chriftianity is part of the law of Eng- 
 land, that nothing is confonant to the law of 
 England, which is contrary to the law divine, 
 and that fumma eft ratio, qua pro religione 
 facitt' of indefinite antiquity and obligation in 
 this realm. Thefe leg?l apophthegms, deriving 
 their force from univerfal and immemorial re- 
 ception, have perhaps a more venerable au- 
 thority than any written edicts; as the ri- 
 vers, which adorn and fertilife a country, 
 convey a more auguft appearance, when we 
 neither* difcern their fprings, nor trace the 
 exact limits of their courfe. 
 
 As to pofitivc exprefs inftitutions, the 
 right g of making them, I have in another 
 place attempted to maintain, and to mew, 
 that it belonged to the common legiflature. 
 
 The actual exercife of this dominion is 
 coevaK with our earliefl accounts in hiflory, 
 f< Neither is it fo ftrange a matter (fays an 
 eminent h prelate) to fee ecclefiaftical caufes 
 debated in parliament. Read the laws of 
 {dng Irja, king Elfrede, king Edward, king 
 
 Elem.jur. left. Ill, 
 
 Bp. Jewell's def. of his apol. p. vi. c. 2. d. i. 
 
 Z 4 Athellhne,
 
 344 Of the legal eftablijhment L E c T . 13, 
 
 Athejftane, king Edmund, king Edgar, king 
 Canute, and you fhall find, that our godly 
 forefathers, the princes and peers of this 
 realm, never youchfafed to. entreat of matters 
 of peace or war, or otherwife touching the 
 common flate, before all controverfies of re- 
 ligion and caufes ecclefiaftical had been con^ 
 eluded. King Canute, in his parliament, 
 holden at Winchefler upon Chriftmas-day, 
 after fundry laws and orders made touching 
 the faith, the keeping of holy-days, public 
 prayers, the learning of the lord's prayer, 
 receiving the communion thrice in the year* 
 the manner and form of baptifm, fafting, and 
 pther like matters of religion, in the end 
 thereof faith thus, jamfequitur inftitiitio legmri 
 fcecularium t Now followeth an order for tem- 
 poral laws. Thus we fee, that the godly 
 catholique princes in old times thought it 
 their duty, before ail other affairs of the com- 
 mon weal, firft to determine matters of religion, 
 and that even by the parliaments of this realm," 
 It is equally memorable, that, in later times, the 
 fcveral charters, obtained from king John and 
 king Henry the third, all begin with confirm- 
 ing the rights and liberties of the church of 
 England, before any temporal grievance is re- 
 dreffed. From that age downwards, a very 
 
 laborious.,
 
 LECT. 13. of the national religion. 345 
 
 laborious, tho indeed prejudiced refearcher 1 , 
 exprefsly enumerates near fifty a&s of par- 
 liament relating to religion, and declares there 
 are many others. And fuch proceedings 
 have purfued the avowed purpofe of afTem- 
 bling the nation in parliament. For the form 
 of writs of election hath for feveral ages 
 been to the following effedr., " that the king, 
 by advice of his council, having ordered a 
 parliament to be holden for certain arduous 
 and urgent affairs concerning his faid majefty, 
 the ftate and defence of his kingdom, and the 
 churchy he therefore requires that the elected 
 mould have from their conftituents full and 
 
 furficient power to do and confent to thofe 
 * i 
 
 things, which by the common council of his 
 {aid majefty's kingdom, by the bleffing of 
 God, mould happen to be ordained upon the 
 aforefaid affairs." Which words k , or fimilar 
 thereto, relating to the church, I firft find 
 inferted in writs of fummons of the feven- 
 teenth year of Edward the third ; in the 
 forty-fixth year of that reign, the like expref- 
 iions were repeated, and have fince in general 
 been continued, as alfo in proclamations l for 
 
 1 Prynne's prefat. dedic, of his anf, to Cozens. 
 
 k Dugd. Summ. 
 
 ] Comm. journ. vol. xxlx, fub initio. 
 
 proroguing
 
 '3 4 6 Of tbe legal eftabfijlmcnt L E c T . 13. 
 
 proroguing a fubfifting parliament. It was 
 therefore a conftitutional meafure, when the 
 two houfes applied to king Charles the firft, 
 about the commencement of his reign, ra- 
 ther for the execution of the laws in being,, 
 in fupport of the eftablifhed church, than for 
 the framing of any new ordinance, and that 
 prince approved and granted their petition. 
 And we ought to conclude and truft, that 
 the like attention is and will be paid to the 
 fame molt worthy object, fmce one of the 
 legiflative affemblies is amfted with the learn- 
 ing and piety of its members of the hierarchal 
 order, and in the other it has long been the 
 eftablimed courfe, at the meeting of a new 
 parliament, to give directions for the fitting, 
 before any other, of the grand committee for 
 religion. So tranfcendent is the power of 
 parliament, and fo frequent the exercife of 
 its dominion in matters of religion. . 
 
 It is neither eafy nor decent to affign limits 
 to parliamentary power, even in matters of 
 religion : it is rather a matter of private con- 
 fcience. Our legiflators, however, that their 
 ads, in matters of fpiritual concern, may 
 conform to and be influenced by the law di- 
 vinely revealed, ought, conftitutionally, to 
 7 confult
 
 L E c T . 1 3 . of the national religion . 3 47 
 
 confult with the facred interpreters of that 
 law, efpecially when aflembled in convoca- 
 tion. To this effect it has formerly been de- 
 clared in parliament m , " that the fpiritualty 
 always hath been reputed and found of that 
 fort, both for knowledge, integrity, and fuf- 
 ficiency of number, and is, at this hour, fuf- 
 ficient and meet of itfelf, without the inter- 
 meddling of any perfon or perfons, to declare 
 and determine all fuch doubts, and to admi- 
 nifter all fuch offices and duties, as to their 
 rooms fpiritual doth appertain." With the 
 fame deference to the facred order, the firfl 
 ftatute ? pafled by queen Elizabeth forbids 
 " any matter or caufe to be adjudged herely 
 by the high commiffion court , but fuch as 
 had been fo determined by the authority of 
 the canonical fcriptures, or by the firfl four 
 general councils, or any of them, or by any 
 other general council, wherein the fame was 
 declared herefy by the exprefs and plain words 
 of the faid canonical fcriptures," and then 
 adds, " or fuch as thereafter fhould be ordered, 
 judged, or determined to be herefy by the 
 
 m St. 2.4 H. VIII. c. 12. 
 
 n St. i El. c. i. 36. i Hawk. 4. 
 
 Abolifaed by ft. 16 C. I. c. u. 3. 
 
 high
 
 348 Of the legal ejlablifomcnt LECT. 13, 
 
 high court of parliament of this realm, with 
 the affent of the clergy in their p convocation" 
 But the clergy q could never meet in convoca- 
 tion, except by virtue of the king's writ ; that 
 authority being effential to r the ratification 
 of their canons, as well as to give life and mo- 
 tion to every other part of the political con- 
 flitution '. The king may, in his difcretion, 
 at any time diflblve thefe reverend councils, 
 in right of his prerogative as fupreme head of 
 the Anglican church. 
 
 This augufl title was attributed to king 
 Henry the eighth by the clergy, in the twen- 
 tieth year of his reign ; who was the firft Eng- 
 }ih monarch who afTumed that ftile ; but the 
 
 The firft of thefe ecclefiaftical fynods recorded to be 
 holden in Britain was in the year 686, when Augufline is faid 
 to have affembled in council the bifhops of this ifland, (4 Inft, 
 322. V. Johnf. fub hoc tempore.) 
 
 * 4 laft. 322. $t. 25 H. VIII. c. 19. i. 
 
 r 12 Co. 72. 
 
 When called together, they had the fame privilege from 
 arreft, for themfelves and their attendants, as members of par- 
 incnt; and this by force of an old ftatute, (8 H. VI. c. I.) 
 which, according to the cuftom before fpoken of, was the firft 
 law of the feffion, in which it was enafted. The late ftatute, 
 (10 G. III. c. 50) which allows adions to be profecuted againft 
 members of parliament and their fervants during the feffion, 
 provided the members themfelves are not arrefted, is filent as to 
 the convocation. 
 
 royal
 
 L E c T . 1 3 . of the national religion. 349 
 
 royal authority extended tofuperintendencyand 
 control of ecclefiaftical affairs in the remoteft 
 periods of our hiftory. The earlieft inftance, 
 which I find recorded of fuch power exer- 
 cifed by any prince within this realm, was c 
 by Kenulphus, fo early as the middle of the 
 eighth century, who then invefted an abbot 
 with epifcopal jurifdiction, and this charter 
 was pleaded as of force in the reign of Henry 
 the feventh. In a n national convention or 
 parliament, holden by king William the 
 Norman, it is declared " rex, quia vicarius 
 fummi regis eft, ad hoc conjlitutitur, ut regnum, 
 et populum Domini, et fuper omnia, fanftam 
 ecclejiam re gat et defendat j" which parliamen- 
 tary declaration is nearly a tranfcript from a 
 fimilar avowal of Edward the confeflbr. It 
 was x however in the conqueror's reign, that 
 the pope, who before y had not any jurifdic- 
 tion within this realm, began to fend legates 
 into England : and tho * William Rufus man- 
 fully withilood his encroachments and ufur- 
 
 1 5 Co. Cawdrey's cafe. 
 
 u Bp. Jewell's def. of his apdl. p. vi. c. 2. d. r. 5 Co. 
 Cawdrey's cafe. 
 
 * Dav. 87. b. &c. But he would not fuffer his fubjecls to 
 
 acknowledge for lawful pope any other, than he fo allowed tu 
 be. (Wilk. LI. A. S. 290.) 
 
 r Lord Raym. 541. * Ant. left. III. n. 
 
 pations,
 
 350 Of the legal eftablifiment IECT. 13, 
 
 pations, yet king Stephen was willing to pur- 
 chafe his holinefs's fupport of a weak and 
 difputed title, by allowing (for the firft time) 
 ecclefiaftical appeals to Rome. But the 
 chiefs of the nation aflembled at Clarendon 
 under his fucceiTor, the rightful prince, dif- 
 * dained and fhook off the recent foreign yoke, 
 and reflored the royal fupremacy in matters 
 of the church, ordaining, as the law now 
 ftands, that all appeals fhould be from the 
 archdeacon to the ordinary, from him to 
 the metropolitan, from him to the final ar- 
 biter, the king. The pufillanimous facri- 
 fice of king John is a familiar hiftory : 
 which was an expedient adopted by him to 
 extricate himfelf from his diftfefles, after, as 
 it is faid, being repulfed in a like application* 
 to a Mahometan emperor. But that ufurper, 
 as he is commonly reputed, (for the then right 
 of fucceffion is not quite clear) unqueftion- 
 ably could not alien from the Engltfh diadem 
 its inherent rights of iovereignty. It is true, 
 in the following weak reign, the legates 
 Otho and Othobon feverally prefided at ec- 
 clefiaftical convocations in this country.- But 
 
 n
 
 L E c T . 1 3 . of the national religion . 351 
 
 in fucceeding b times the firft and third king 
 Edward were not wanting toaflert their autho- 
 rity; and, about the middle of the fourteenth 
 century, appeals to Rome were by a pofitive 
 c ftatute exprefsly prohibited and made penal. 
 But of thofe ages the moft memorable recog- 
 nition and vindication of the eccleiiaftical fu- 
 premacy of our kings is in the famous d fta- 
 tute of prtemunire, which, reciting indignantly 
 the papal ufurpations, declares, that " fo the 
 crown of England, which hath been fo free at 
 all times, that it hath been in no earthly fub- 
 jeclion, but immediately fubjecl: to God, in 
 
 b In the 30th year of E. I. the whole order of lay nobles 
 wrote a memorable letter to the pope, denying his jurjifdiftion 
 within th-;fe territories ; and tho indeed matters temporal only 
 are exprefled, the firmnefs and dignity of this proceeding mull 
 have very confiderably invalidated his authority. ( i Parl. hift. 
 135. See alfo 270 &c. fub anno 1343, when another letter 
 was written to the pope by the lords temporal and commons^ 
 after a remonftrance to, and encouragement from, the king, 
 againft papal abufjs and ufurpations.) 
 
 27 E. 111. ft. i. c. i. The firfl ad, as ufual, of the 
 
 feffion. 
 
 d 1 6 R. TI. c. 5. This and fimilar inftances may mew the 
 
 illegality of the authorities exercifed here by thebifhopof Rome. 
 Bat they do not difprove the fafls recited in one of my elemen- 
 tary difcourfes, (clem. jur. left. V.) that.decrecs and decretal 
 epiflles of popes were received amongft us, that they influenced 
 the deciuons of oor fpiritual courts, and that they confequently 
 became incorporated with the ecclefiaftical polity of the 
 kingdcjn. 
 
 all
 
 1 5 2 Of f ^ e I e a l ejlabliflment L E c T . 1 3 . 
 
 all things touching the regalty of the fame 
 crown, and to none other* mould be fubmit- 
 ted to the pdpe> and the laws and ftatutes of 
 the realm by him defeated and avoided at his 
 will, in perpetual deflruction of the fove- 
 reignty of the king our lord, his crown, his 
 regalty, and of all his realm, which God de- 
 fend." In the e reigns of Edward the fourth 
 and Richard the third, the judges gave their 
 opinions againfl excommunication in the 
 courts and by the bimop of Rome. In af- 
 ter times the jurifdidlion and title of fupreme 
 head of the Anglican church have had the 
 fan&ion of feveral legiflative acts, the f firfl: of 
 which was* judicially holden, in the reign of 
 James the firfl, to be only a declaration and 
 reiKtution of the common law, not a new gift 
 of the fupremacy of the church to the crown. 
 And even when an infatuated people, under the 
 influence of the firfl queen Mary, again bow^ 
 ed their necks to the papal yoke, his h holinefs 
 was reflored to power by authority of the le- 
 gijlature, and that not abfolutely or uncon- 
 ditionally, but to fuch preheminence and ju- 
 rifdivftion only as he ufed and exercifed, or 
 
 5 Co. Cawdrey's cafe. * St. 25 H. Vllt. c. 
 
 Mo. 782. h St. i & 2 Ph. & M. c. 8. 53. 
 
 might
 
 l fc c T i 3 . of the national religion. 353 
 
 might lawfully have ufed or exercifed, not at 
 any period, but reftrictively in the twentieth 
 year of Henry the eighth's reign, and ex- 
 prefsly without diminution or inlargement. 
 The fame aft l allows to be put in execu- 
 tion fuch bulls, difpenfations, and privileges, 
 obtained from the fee of Rome, as do not 
 contain matter contrary or prejudicial to the 
 authority, dignity, or preheminence royal or 
 imperial of the realm, or to the laws of this 
 realm then being in force, and not in that 
 parliament repealed. Thus we fee, in the 
 moft bigotted times, the reigning fovereign, 
 with the three eftates of the kingdom, thought 
 their authority both neceflary and competent 
 to refix the fpiritual tyranny of the pope, and 
 alfo to modify and circumicribe it with dif- 
 cretionary limitations. 
 
 The ftatute lafl mentioned, fo far as it re- 
 vived the authority of the pope, was repealed k 
 in the firft year of queen Elizabeth. And 
 now the royal power may indeed extend to 
 protect, but not to injure or overthrow our 
 religious eftablimment. For by the at ' for 
 
 '46. k St. lEl.c. i. i j2 & 13 w. in. 
 
 c. 2. 3 . 
 
 A a fettling
 
 354 Q/* the k&d eftabUjhment 1 E c T . 1 3 * 
 
 fettling the fucceflion of the crown, it is pro- 
 vided, that whofoever {hall hereafter come 
 to the pofTeflion of this crown mall join in 
 communion with the church of England. 
 And by the aft m of union, a former " ftatute 
 of the fame feffion is reconfirmed - y whereby 
 the royal fucceflbrs of queen Ann are to take 
 and fubfcribe an oath to maintain and pre- 
 ferve inviolably the fettlement of the faid 
 church, and the doctrines, worfhip, and difci- 
 pline thereof, as by law eftablifhed. Thus 
 the crown is armed indeed with ecclefiaftical 
 jurifdi&ion, but armed, like a fortified port 
 or garrifon, with ftrength to repel foreign 
 danger, but inoffenfive and unalarming to 
 thofe whom it intrenches from invafion. 
 
 The remaining and fubordinate powers of 
 
 the church are diftributed to thofe epifcopal 
 
 and other courts, before treated of, which 
 
 our legal polity has eftablifhed with jurifdic- 
 
 tion in matters of herefy, falfe doctrine, and 
 
 fcandalous immoralities, and with authority 
 
 to punifh offenders pro falute animce, in order 
 
 to their reformation, and to vindicate the caufe 
 
 of virtue and religion. 
 
 01 5 A. c. 8. ii. 5 A. c. 5. 
 
 Having
 
 LECT* 13. of tb$ national religion. 355 
 
 Having thus taken a curfory view of that 
 jus infacris, which has been with little varia- 
 tion recognized by our laws through fuccef- 
 live ages, .(the tranfcendent power of parlia- 
 ment, the authoritative voice of convocation, 
 the royal prerogative in matters ecclefiaftical* 
 and the ordinary epifcopal jurifdidtion) we 
 may not unfeafonably advert to the attention 
 {hewn by the fame laws in providing for the 
 duties of religion. For firfl the minifters 
 of divine worfhip have, according to their 
 feveral ranks, proportionate preheminence 
 and revenues allotted to them, with various 
 juridical means of recovering all their dues, 
 whether ignorantly or fraudulently withhold- 
 en : and indeed thefe facerdotal claims have 
 in general received, for a length of time paft, 
 from courts of law and equity, all pofiible 
 countenance and favour. I mentioned in the 
 lalt ledlure the privileges and exemptions of 
 the ecclefiaftical order. It may be here fub- 
 joined, that by the ft. I M. fefT. 2.c. 3, if any 
 perfon malicioufly or contemptuoufly moleft, 
 difturb, or mifufe any preacher lawfully autho- 
 rifed, in a place appointed to be preached in,, 
 or any lawful prieft celebrating divine fervice, 
 or mail profane the facrament, fuch perfon 
 hall be imprifoned, and give fecurity for his 
 A a 2 future
 
 356 Of the legal ejlablijhrnent L E c T . 1 3 < 
 
 future good behaviour. This adl was made 
 to protedt popifh ceremonies; but it hath been 
 * refolded, that the disturbance of a minifter 
 in faying the prefent common prayer is within 
 this ftatute ; for the exprefs mention of 
 fach divine fervice, as mould afterwards be 
 authorifed by queen Mary, implicitly includes- 
 fuch alfo as mould be authorifed by her fuc- 
 ceflbrs ; for fince the king never dies, a pre- 
 rogative, given generally to one, goes of courfe 
 to others. Our anceftors thought even the 
 vicinity of our temples too facred to be pro- 
 faned by mercantile ufes : for in a parliamen- 
 tary ordinance p of above five hundred years 
 antiquity, king Edward the firfl forbiddeth 
 fairs or markets to be kept in churchyards, 
 expressly for the honour of the church $ 
 which will not be thought unworthy of men- 
 tion, as a fhidious imitation of the holieft 
 pattern for example. Our law, as I have 
 before noticed, fpecially provides for the re- 
 pairs of the church, and its decent decora- 
 tions. So q divers ftatutes, too numerous for 
 diftinc"l recital, folemnly injoin attendance at 
 
 i Hawk. 140. T. Jon. 159. 
 * St. 13 E. J. ft. 2. c.6. 
 
 1 St. i El. c. 2. 1 4- 15. i E. VI. c. 12. 10. 5 &6 
 E. VI. c. 4. i Hawk. 7, 8, and the itatutes there cited. 
 
 divine
 
 X,ECT. 13. of the national religion* 357 
 
 divine worfhip, provide againfl the profanation 
 of the fabbath, blafphemy, and the like j pu- 
 niming r facrilege more heavily than common 
 theft, and finking in churches than other 
 aflaults. 
 
 But thofe laws more particularly require 
 obfervance in the prefent difquiiition, which 
 conftitute and combine us in the profeffion, 
 of the fame eftablifhed worlhip and faith. 
 
 In the dawn of Edward the fixth's reign, 
 the parliament, having firft s repealed all for- 
 mer features, in matters of doctrine and reli- 
 gion, in a fubfequent feffion, reciting 1 , that 
 different forms of fervice had been formerly 
 ufcd, and that the book of common prayer 
 was then completed by the unanimous con- 
 fen t of the venerable perfons employed for 
 that purpofe, ftrictly ordains the universal ufe 
 of it in England, Wales, and Calais; and 
 fubjects to penalties fuch as neglect, revile, or 
 deprave that facred manual of devotion ; a 
 work, which does fuch abundant honour to our 
 
 * St. i E. VI. c. 12. 10. 5 & 6 E. VI. c. 4. 
 
 St. i E. VI. c. 12. 3. 
 Sc. z& 3 E.VI.c. i. 
 
 A a 3 lan-uiige,
 
 3 5 8 Of the legal eftablijhment *. E c T . 13. 
 
 language, an4 of which the compilers, avoid- 
 ing on the one hand what Dr. Barrow u ftiles, 
 the fuperficial courtmips of ceremonious ^ acU 
 drefs, on the other fide munned a fludied 
 uncouthnefs and aufterity, and a penurious 
 averfion to expedient decoration. This firft 
 ftatute refpedling the liturgy is drawn with 
 that unaffeded piety and charitable modera- 
 tion, as feems to have laid an aufpicious 
 foundation for uniformity in the Englifh 
 church. A fubfequent x act in the fame 
 reign declares, that the faid book of common 
 prayer had been by parliamentary authority pe- 
 rufed and perfected, and inforces its general 
 reception, with the addition then made of the 
 forms of confecration. This fecond act of 
 uniformity, having been y repealed in the 
 reign of queen Mary, was revived and con- 
 firmed by two z ftatutes paffed by her fuc- 
 ceffor; the latter of which feems particu- 
 larly intended to vindicate the due regu- 
 larity of epifcopal confecration ; for this 
 purpofe feveral former ftatutes are recited to 
 prove its conformity to the antient conftitu- 
 tions of this realm ; and then the book of 
 
 Scrm. I. * 5 & 6 E. VI. c. i. * St. i M. 
 
 feff. a.c. 2. * i 1. c . 2 . 8 El. c. *. 
 
 common
 
 tECT. 13. of the national religion. 359 
 
 common prayer, including the faid forms of 
 confecration, is ordained to ftand and remain 
 good and perfect to all refpects and purpofes ; 
 ' whereby, fay the legiflators, fuch evil 
 fpeech as heretofore hath been ufed againft 
 the high ftate of prelacy may hereafter ceafe.'* 
 Soon after a law a was made, requiring all ec- 
 clefiaflical perfons to fubfcribe the thirty -nine 
 articles, and fubjedting them to deprivation 
 in cafe of maintaining doctrine repugnant 
 thereto ; the reafonablenefs of which injunc- 
 tion, tho it has been of late much difputed, 
 occafioned it to be b re-enadted at two fubfe- 
 quent periods of our hiflory. Immediately 
 after the refloration, the prelates recovered 
 their ordinary jurifdidtion, and their feats in, 
 parliament, of which they had been by un- 
 due management defpoiled in the feafon juft 
 preceding thofe great troubles : for fome of 
 them had been impeached, and others were 
 terrified by the great danger of attending in 
 their places in the lords' houfe, about the 
 the bills c for taking away their votes 
 
 a St. 13 El. c. 12. 
 
 * St. 13 &14 C. II. c. 12.; & 5 A c. 5. 
 
 * Thefe were the ft. 16 C. I. c. 1 1, repealed by the 130. II, 
 (1. i.e. 12, and the 16 C. I. c. 27, repealed by the 13 C. 11. 
 ft, 1- c. s, 
 
 A a 4 and
 
 360 Of the legal ejlablifiment L E c T - 13. 
 
 and jurifdi<5lion were pafTed. In the file-* 
 ceeding feffion was pafled the laft d adt for 
 uniformity in the fervice and facraments of 
 our church, which is generally underftood, 
 when we ufe that expreffion, altho there have 
 been three preceding e flatutes, above referred 
 to, with fimilar titles. Hereby epifcopal or- 
 dination was made neceffary to the holding of 
 any ecclefiaftical promotion, and the liturgy 
 was for the f fifth time confirmed in parlia- 
 ment, fome g alterations and additions having 
 
 d St. 13 & 14 c. II. c. 4. 
 
 e Viz. 2 & 3 E. VI. c. i. 5 & 6 E. VI. c. i. i El. c. 2. 
 
 f By the three preceding adls for uniformity^ and by S El. 
 c. i. 
 
 * Clarend. contin. 146 156. Before the reformation, 
 
 (there being no general form of common prayer) failing-days 
 and holy-days were ordained in convocation. (B. R. Hard. 332.) 
 Since that time the clergy in their convocation have only been 
 confidered as the propounders of ecclefiallical conftitutions re- 
 fpeding forms of prayer and the like. (Str. 1058.) The 
 ft. 13 & 14 C. II. c. 4. 17. is exprefs againll the ufe of any 
 other form of prayer except that then ordained. Hence the 
 right of prefcribing occafional forms for particular days by lefs 
 authority than that of parliament has been queflioned by an ec- 
 clefiaftical writer; but he afterwards recanted; and obferves in 
 another place, that it is fufncient that the two houfes of parlia- 
 ment own this power to be in the crown, by fubmitting to the 
 royal commands in obferving fuch days, and fometimes peti- 
 tioning the king to order thefe religious folemnities. (Burn, 
 eccl. law, t. holidays, 10. cites the cafe and writings of Mr. 
 Johnfon.) But Dr. Burn does not feem inclined to vindicate the 
 alterations (which he gives fpecimens of) made by J. II. in the 
 forms for the zpth of May and 3oth of January before in ufe. 
 (Ibid. 9)
 
 L E c T . 1 3 . of the national religion. 361 
 
 been inferted by the convocation cf the pro- 
 vince of Canterbury, and agreed to by that 
 of York, with more candour, as lord Claren- 
 don thinks, than real prudence, or profpect 
 of beneficial effect : but the event does not 
 feem to have correfponded with his expecta- 
 tion. 
 
 Within few years after this profperous and 
 complete fettlement, the whole eftablim- 
 ment of the church was endangered by a 
 h propofal made to king Charles the fecond, 
 under the fpecious pretence of indulging li^ 
 berty of confcience. This was a fcheme for 
 raifing an immenfe revenue by felling difpen- 
 fations for the exercife of any religion. The 
 unlimited wildnefs of it was fatirifed bv lord 
 
 r 
 
 chancellor Clarendon, tho he afterwards 
 thought it an unguarded expreffion, by faying, 
 " it was fhip- money in religion, that no- 
 body could tell the end of, or where it would 
 reft." It feems copied from the pope's mer- 
 chandiling of difpenfations, but exaggerated 
 far beyond the extravagant original. The 
 project however was defeated by the wi&om 
 gnd firm integrity of the chancellor and trea- 
 
 h Clar. cont. 245 &c. 
 
 furer,
 
 362 Of the legal eftablljhment L E c T . 1 3 , 
 
 furer 1 , who, againft the king's pofitive folici- 
 tations, conducted and animated the oppofi- 
 tion made to it by all the prelates of the 
 realm. In the fame reign k , other defigns, 
 pregnant with the like danger, were at- 
 tempted, bills being brought into parliament 
 with fpecious and fallacious titles, but without 
 any final fuccefs againfl the eftablifhrnent or 
 welfare of the church, 
 
 But it was not thought fufficient to erecl; 
 this facred pile of national religion, to repair, 
 to ftrengthen, and adorn it, our laws have- 
 moreover caft fences around, to prevent any 
 hoftile furprife. By what is ftiled the corpo- 
 ration ' act, all magiftrates of cities and bo- 
 roughs, and, by the teft m act, all officers 
 civil and military, were obliged, under fevere 
 penalties, to receive the facrament according 
 to the rites of the church of England. This 
 provifion, in refpedt to corporation magiftrateSjj 
 is indeed iince" repealed: however, about the 
 time of pamng fuch repeal, another very 
 prudent law 9 was enacted, by which mayors, 
 
 4 Earl of Southampton. k Grey's debates, vol. iv. 
 
 318.334. St. 13 C. II. ft. 2 . c. \. St. 25 C. II, 
 
 c. a. St. 5 G. I. c, 6. St, 5 G. I. c. 4. 
 
 bailiffs,
 
 L E c T . T 3 . of the national religion. 363 
 
 bailiffs, and other magiftrates are reftrained 
 from appearing at any public meeting for re- 
 ligious wormip, other than of the church of 
 England as by law eftablimed, in the gowns, 
 or with the enfigns of their refpective offices, 
 under penalty of being difabled to hold that 
 or any other public employment. This was 
 a politic and mild aflertion of the legal fu- 
 periority and dignity of the eftablimed 
 church. 
 
 Such are the laws, which confer on the 
 fubjedts of this realm the greatefl benefit, 
 which any civil inflitutions can beftow, by 
 well providing for the free and due exercife of 
 a pure and reformed religion. 
 
 LEG-
 
 Ofthsftateofferfons^and LECT. 
 
 LECTURE XIV. 
 
 Of the Jlate. of perfons y and firft of the ft ate of 
 alienage* 
 
 TH E diviilon which I formerly made of 
 perfons, into fuch as govern, and thole 
 who are fubject to government, having been 
 ^urfued through the feveral kinds of domi- 
 nion and jurifdiftion incident to civil commu- 
 nities, and varioufly distributed and defined 
 by our laws, and the ecclefiaftical order and 
 the eflablimment of the national religion 
 having occupied the three laft lectures, I am 
 now led to confider the other diftindionsi 
 which prevail among the general body of th 
 people, or fubjedts of this realm, 
 
 It may not be improper briefly to premife, 
 that perfons have fometimes been diftinguim- 
 ed Into nafi and najcituri^ I fhall only here 
 
 remarl^
 
 Xi fc c T ; i 4. firft of tie ftate of alienage. $ 6 j 
 
 remark in regard to this difKn&ion, that 
 the * nafcituri, infants in their mother's 
 womb, in centre fa mere, (as the legal phrafe 
 is) are in many refpe&s regarded as objedls 
 of municipal inftitutions. Thus particu- 
 larly, it is highly criminal in all thofe, who 
 prevent the future birth and life of fuch un- 
 born children : and it is clearly fettled, that 
 b a devife to an infant, in venire fa mere, is 
 good and effectual, tho he be born after the 
 teftator's death. The rights of after-born 
 ifTue, under a marriage or other fettlement, 
 are provided for by the ft. 10 & n W. III. 
 c. 16; which I mail mention again hereafter. 
 
 The diftinclions to be treated of in this 
 and the following lecture are what conflitute 
 the Jiate of perfons, and are, as among the 
 Romans, fet forth in thofe laws of their pan- 
 dedts, comprehended under the title " de 
 ftatu lominum," which I have adopted and 
 prefixed to the prefent difcourfe. The 
 Roman jurifts c confider thefe diftinctions 
 under the feveral heads of libertatis, as be- 
 
 i Wms. 246. fc i Freem. 244.. 293. 
 
 * Heinec. append* ad 1. I.Rom, ant. inprsfat. 
 
 tween
 
 3 66 Ofthejlate ofperfons, and L E c T . 1 4.4 
 
 tween freemen and Haves, civitatis, as between 
 natives and aliens, and familice, as between 
 parent and child. 
 
 As to the firft, whatever traces of fervi- 
 tude may be found in the villenage of old 
 times, no fuch title hath for many reigns fub- 
 filled in the Engliih code. Happily for this 
 age and country, and for the honour of hu- 
 manity, the fetters of villenage, as it refpedls 
 the perfon, have long been fhaken off: jam * 
 pridem in bdc repubL non folum tenebris vetuf- 
 tatis) verum etiam luce libertatis opprtJJ'a funf. 
 Neither was the condition of villeins fo ab- 
 jedt as is perhaps generally imagined. For 
 fir Edward c Coke, in commenting on magna 
 carta, pronounces that they were under the 
 protection of that conftitutional law, being 
 accounted free againft all men, except their 
 lords* 
 
 The laft diftindtion, namely familia, ap- 
 plies to the head of perfons, as confidered by 
 the law, in private domeftic relations, which 
 
 * Cic. pro C. Rabirio. e 2 Inft. 4. 
 
 7 will
 
 LECT. 14. firjl of the ft ate of alienage. 367 
 
 will be fpoken of in the fequel of this Part 
 of our difquifitions. 
 
 The ftate of perfons, in refpett to the 
 fecond Roman diftinction, civitatis, which di- 
 vides them into natives and aliens, will be 
 treated of in the prefent le<5ture, referving 
 for the following difcourfe other general dif- 
 criminations affecting the mafs of the people, 
 and fuch as are the foundation of various parts 
 of our law. Thus there is no perfon, but 
 who is either a minor or of full age, and fo of 
 other qualities. All thefe diftindtions are re- 
 ducible to the head of incapacity or dif- 
 ability; that is, thofe with whom the inca- 
 pacitated character is contrafted, enjoy fo 
 far forth, and unfubject to the fpecified ex- 
 ceptions, the full and Undiminimed rights 
 and privileges of a Britifh fuBject. 
 
 Thefe various difabilities arife from the 
 feveral caufes of alienage, illegitimacy, infan- 
 cy, and a defect of rational un demanding. 
 
 I. The firft distinction, then, to be par- 
 ticularly treated of, and intended as the fub- 
 
 jeft
 
 368 Of thcftate of perfons, and L E c T . f 4* 
 
 jedl of the remainder of the prefent lecture, is 
 that which fubfifts between natural born fub- 
 jedts and aliens. 
 
 Some difcrimination between citizens and 
 foreigners, with different degrees indeed of 
 rigor, has prevailed in the laws of all or moffc 
 countries. For no jurift, I believe, ever yet 
 maintained, tj^at a foreigner, though intitled 
 to fojourn uninjured and unmolefled in a 
 ftrange country, might claim to be incorpo- 
 rated into fuch civil community, and to enjoy 
 the municipal rights of natural fubjects. It 
 would be perhaps a difficult, but not an un- 
 important, attempt, to afcertain, in point of 
 political expedience, the proper meafure and 
 necelTary points of difqualification of aliens, 
 fo as to invite populoufnefs, without danger 
 to the civil and religious eftablifhment of the 
 hofpitable nation. 
 
 Whenever a foreigner, fays AylifFe f , tra- 
 velled out of his country, he could only claim 
 the benefit of the law of nations, having no 
 
 f Civ. law, b. ii. t. 3 : the marginal reference to the digefts 
 is erroneous. 
 
 right
 
 L E c T . 1 4. frfl of the ftate of alienage. 369 
 
 right to the law or privileges of any particu- 
 lar place. Indeed the antient laws of Rome 
 treated foreigners both with indignity and fe- 
 verity. They feem s , however, to have had 
 the power of making a will fo early as the 
 time of Cicero ; and their difabilities and re- 
 flrictions, I prefume, gradually wore away, 
 till h at length the emperor Antoninus Cara- 
 calla, with an unparalleled latitude, commu- 
 nicated the privileges of a Roman citizen to 
 all the inhabitants of that wide empire: 
 which confiitution, Heineccius obferves, had 
 overturned almoft the whole law relative to 
 this fubjecl: , and it was affuredly a liberal 
 extenfion of that ' jus quirilium, or jus civita- 
 tiSy which was at firft limited to the pom&ria 
 of Rome, then circumfcribed (as to a portion 
 of it) by the bounds of Latium, afterwards in- 
 dulged (in a ftill inferior degree) to all Italy, 
 and now by this ordinance diffufed (with little 
 or no difcrimination) through thegreateft part 
 of the known world. 
 
 t Cic. de orat. 1. i. c. 39. 
 h Heinec. append, ad lib. i. Rom. ant. 
 1 Heinec. diftinguithes thefe two terms, and alfo the expref. 
 Latii,ju; Italicum, zadjui frwinciarum. Ibid. 
 
 Bb An
 
 37 f the ft ate ofpcrfons, and L E c T . 14. 
 
 An alien, by the laws of England, is one 
 born out of the ligeance of the king. But 
 this requires explanation. For k if foreign 
 enemies mould invade this country, and fur- 
 prife any caftle or fort, and have ifTue born 
 within the realm, fuch iflue would be an 
 alien, becaufe not born under the king's obe- 
 dience and protection. On the other hand, 
 if natural born fubjects have children born 
 abroad, fuch children alfo, by the ft. 7 A. c. 
 5. 3, are to be adjudged natural born fub- 
 jects, and not aliens. The benefits of this 
 act are, by the ft. 4 G. II. c. 21, denied to 
 the iflue of traitors and other criminals ; but 
 fuch perfbns, as were allowed by the laft 
 mentioned law to claim thefe privileges, may 
 now, by a fubfequent act ', tranfmit them 
 to their immediate defcendants. Before thefe 
 modern provifions were in force, and while 
 the matter refted chiefly on a far more antient 
 parliamentary m ordinance, the law of Eng- 
 land n was always very favorable and indul- 
 gent in extending the principles on which a 
 perfon might be adjudged a natural born fub- 
 
 k 7 Co. 18. a. b. Calvin's cafe. 
 
 i St. 13 G. III. c. 21. 25 E. III. ft. 2. 
 
 i Vent. 427. 2 Rol. 94.
 
 LECT. 14. firft of the Jlate of alienage . 371 
 
 jeft, rather than be liable to the difabilities 
 of alienage. As to which matter of inquiry, 
 I mall here only farther add, that thofe are 
 not aliens, who are born either in his ma- 
 jetty's colonies and plantations, or on thofe 
 parts of the ocean, which are reputed the 
 Englifh feas. 
 
 It has been thought inconfiilent with the 
 fafety and intereft of this country, that aliens 
 mould be proprietors of landed eftates here 3 
 which therefore they are not allowed to pof- 
 fefs, either by inheritance, or any other 
 means j all which other means are included 
 by the law Under the term " purchafe," that 
 is, acquiiition. An alien fon p cannot inherit 
 to his father, who was a natural born fubject. 
 And, q antiently, if the father was an alien, 
 his iffue could not inherit to the grandfather, 
 becaufe he muft claim mtdiantt pat re ; but the 
 land would have ef cheated, that is, fallen into 
 the hands of the lord of whom it was holden, 
 if the grandfather had no ether heirs. This 
 hard/hip, however, is remedied by an T adt of 
 parliament, enabling heirs to claim through 
 
 Molloy 370. r i Inft. 8. a. 
 
 i Vest. 416. * 1 1 & 12 W. HI. c. 6. 
 
 B b 2 alien
 
 \'^^ Ofthsjlateofperfons,and L EOT. 14. 
 
 tlien anceftors : to which indulgence it is by 
 a ' later ftatute made a neeeflary condition, 
 that the claimants were in being and capable 
 of taking the eflate at the death of the per- 
 ions dying feifed of the inheritable intereft 
 therein -, and it is added, that if the defcent 
 bs caft upon a daughter, an afterborn fon fhall 
 diveft her of her right, and afterborn daugh- 
 ters fhall fye jointly intitled with the eldeft. 
 With regard to eflates acquired by other 
 means than by inheritance, the ' law has in- 
 troduced, in favor of the royal prerogative, 
 that an alien may purchafe, but not hold, 
 lands ; that is, after the conveyance is com- 
 pleted, the intereft, which he would have en- 
 joyed, in cafe he had been a natural born fub- 
 je<ft, becomes forfeitable to the king. Such 
 forfeiture accrues, not only of freehold eflates, 
 but of leafes for years of meadows, paftures t or 
 the like. But an alien merchant may rent a 
 houfc for his habitation. If other aliens, 
 feeking to refide here, and not profefling 
 merchandife, are, according to legal ftridtnefs, 
 difabled from taking houfes for their habita- 
 
 25 G. II. c. 39. t , inft. 2 . b. Ibid. 
 
 tion,
 
 L E c T . 14. Jirft oftheftate of alienage. 373 
 
 tion, fuch general exclufion of foreigners 
 feems inconfiftent with the received maxims 
 of policy, and hardly reconcileable with the 
 law of nations. It is therefore very properly 
 demanded, by one of the laft learned x editors 
 of fir Edward Coke's firft inftitute, whether, 
 if fuch be the common law, (which he ap- 
 pears to doubt) its feverity ought not to be 
 corre&ed by the legiflature. 
 
 Tho a very impolitic law y of Henry the 
 eighth makes void all leafes of houfes or 
 fhops to alien, artificers or handicraftfmen, 
 and hath not hitherto been z exprefsly repeal- 
 ed, yet the force of it has been extenuated by 
 very ftricl: a judicial conftruclions. The in- 
 tention of the legiflature was twofold, namely, 
 to prevent aliens from having any permanent 
 eftate, and from exercifmg trades here to the 
 prejudice of native fubjeds. Therefore, if an 
 alien artificer takes a houfe to hold at uv"//, 
 this is allowable : and if he works as jour- 
 
 i Inft. 2. b. (i3th ed.)n.p. r St. 32 H. VIII. c. 16. 
 
 z Sir William Blackftone (i Black, comm. 372.) fays, that 
 the ftatutes, prohibiting alien artificers to work for themfelves 
 are generally held to be virtually repealed by the It. 5 El. c. 7 ; 
 but I have not met with any other r.uthoruy to that effefl. 
 
 * I Saund. 7. 2 Sho. 135. 3 Mod. 94, 
 
 B b 3 neyman
 
 374 Oftbeftateofperfons,and LECT. 14. 
 
 neyman or fervant to a natural born fubjecl:, 
 this cafe is not at all affected by the words of 
 the flatute. 
 
 Farther, an alien cannot take lands by any 
 fc act of law, as it is expreiTed ; thus a huf- 
 band being an alien cannot be tenant by the 
 curtefy, and a wife being an alien cannot be 
 indowed, except the confort of the king. 
 And in all cafes of title accruing by act of 
 law, without the concurrence or co-operation, 
 of the party, the alien is difabled from taking, 
 as well as from holding, the eftate ; and hay- 
 ing been paflive, and done nothing to merit 
 the punimment of forfeiture, no right of that 
 kind veils in the crown. 
 
 However, in regard to perfonal c goods, 
 our law is more favorable to an alien. For 
 thefe he is allowed to poiTefs : he may bring 
 a perfonal action, to recover them in fpecie, 
 or a fatisfaction in value, if they are with- 
 holden, or damaged 5 and he may bequeath 
 them by will. 
 
 * 7 Co. 35. a. i Inft. 31. a. 3 Sal. 28. 
 2 Rol. 94. i And. 25 .
 
 L E c T . 1 4. frfl of the flat e of alienage. 375 
 
 As a merchant flranger is allowed to iriha- 
 bit and traffic here, he is protected by the law 
 in all things relating to fuch merchandife. 
 He may bring an action to recover poffeflion 
 of the houfe demifed to him, or for any inju- 
 ry affe&ing it, as well as be a plaintiff in fuits 
 concerning mere perfonal property. The fe- 
 curity of foreign merchants in coming into 
 England, leaving it, travelling through, or a- 
 biding in it, is very fully and explicitly, and 
 even verbofely, ordained in magna * carta* 
 A ' flatute to the like efFec~l was palTed un- 
 der Edward the third. And it was holden f , 
 in favor of foreign merchandife, fo early as 
 the time of Henry the eighth, that an alien, 
 while refident in France, might fue for re- 
 covery of a debt in the court of common 
 pleas. 
 
 As aliens, by the law of nations and the 
 municipal inflitutions of this land, were al- 
 ways permitted to refide here for the purpofes 
 of traffic, it was reafonable, as foon as the pro- 
 viiions concerning bankrupts were reduced to 
 fyftem, to 5 extend them t^ foreigners, both 
 
 * C. 30. 27 E. III. c. a. 
 
 * Dy. z.b. < St. 21 j.l. c. 19. $ 45. 
 
 Eb 4. tO
 
 37 6 Oftbeftate offerfons, and LECT. 14. 
 
 to make them liable thereto, as other traders, 
 and capable of receiving the benefit thereof, 
 as other creditors. Therefore alfo h an alien, 
 may maintain an action for flander in calling 
 him a bankrupt, as for defamation in general, 
 and for injurious affaults on his perfon. And 
 moreover, by an exprefs law *, redrefs is pro- 
 vided for aliens, who are injured by the king's 
 fubjects on the fea, or in any port of the 
 realm, 
 
 But as an alien is not allowed to pofiefs 
 any real eftate, except a houfe for his habita- 
 tion, it follows, that he cannot maintain any 
 action in which any interefl in land is attempt- 
 ed to be recovered. 
 
 In regard to forenfic litigations, fuch has 
 been the unexampled benignity of our antient 
 law, that where k either plaintiff or defendant 
 to a fuit is an alien, he may demand a trial 
 per medktatem lingua^ that is, to have a jaiy 
 
 * i Bui. 134. Yd. 198. St. 31 H. VI. c. 4. 
 
 * St. 27 E. IIT. c. 8, and 28 E. III. c. 13 The for- 
 mer of thefe ftatutes requires, that, if both parties to the fuit 
 are aliens, the whole jury {hall be aliens, but this provifion, as 
 there was no reafon for it, no peculiar dread of partiality in 
 that cafe, fell ioto difofe. 
 
 conf5. fling
 
 1 4. frft of the flat e of alienage. 377 
 
 confifting of an equal number of foreigners 
 and natural fubjects, even though the king 
 be a party. An alien ' indicted of felony may 
 have the benefit of this trial, but not on a 
 charge of high treafon. 
 
 It has alfo been m refolved,-that aliens may 
 be executors or adminiftrators, and, as fucb, 
 may become intitled to leafes, as well as other 
 merely pcrfonal property ; and that, whetliff 
 they refide here or abroad ; and tho the tefla- 
 tor or inteftate was alfo an alien* 
 
 Notwithftanding aliens could not enjoy 
 any freehold eftate in lands, they were always 
 capable of the fuperior ecclefiaftical prefer- 
 ments in this realm ; which muft perhaps be 
 afcribed rather to the influence of papal au- 
 thority, than to the idea, that churchmen 
 were lefs likely than foreign laity to have or 
 to cherifh a native intereft incompatible with 
 the welfare of this country, tho a very emi- 
 nent lawyer "gives that reafon for the dif- 
 t;in&ion. Befides the great number of aliens, 
 who have been elevated to the rank of Englifli 
 
 1 Jenk. 216. CT 3 Cro. 8, 9. 2 R. A. 348. 
 
 prelates,
 
 Of the ftateof perfons, and LECT. 14. 
 
 prelates, moft of our richeft monafteries 
 were governed by foreigners, and had more 
 French than native inhabitants. As to pa- 
 rochial preferments, three feveral p acts of 
 parliament were pafled, in the fpace of about 
 thirty years, to reftrain aliens from holding; 
 ecclefiaftical livings ; which probably were 
 never ftrictly inforced, altho fir Edward Coke 
 * maintains, that, if an alien be prefented to 
 ^benefice, the bimop ought, on the authori- 
 ty of thefe ftatutes and the records of parlia- 
 ment, to refufe to admit him. On the other 
 hand, it is faid r to have been judicially hoi- 
 den, that an alien is capable of an ecclefiafti- 
 cal benefice, and that, as fuch incumbent, he 
 may maintain any action concerning the 
 glebe, tithes, or the like, as alien priors 
 might have done ; becaufe he fues, not in 
 his own right, but in right of his church. 
 If this be fo, it is a ftrong inflance of ads of 
 parliament becoming obfolete. 
 
 Burn, eccl. law, t. ironafterles, 2. 
 
 St. 3 R. II. c. 3. 7 R. II. c. iz,and i H. V. c. 7. 
 
 * 4lnft. 338. In France there was the like ordinance: 
 
 aliens were, generally, incapable of benefices ; but the king 
 might grant a difpenfation. (Domat.vol. ii. 521,2. Strahan'sed.) 
 
 1 Hughes parfon's law, c. 10, cites Dr. Seaton's cafe. M. 
 8. J.I.C.B. 
 
 7 But
 
 I E c T . j 4. firft ofthejlate 9f alienage. 37 ^ 
 
 But an alien is not to be appointed to, or 
 intruded with, any office concerning the ad- 
 miniftration of the laws, not even that of a 
 * conftable : much lefs is he qualified to vote 
 at parliamentary elections, or to be chofen a 
 member of the legiilature, as I have before 
 mentioned in treating on that fubject. 
 
 An alien, while he refides here, is generally 
 fubject to our laws, and owes a local and tem^, 
 porary allegiance to our fovereign, by whofe 
 authority thofe laws are adminiflered, and by 
 whom, therefore, he is protected in the en- 
 joyment of fuch rights as are indulged to 
 him. Confequently there is no doubt, as J 
 have before intimated, that aliens may be 
 guilty of high treafon. Thus if a ' foreigner, 
 even one whofe ftate is at war with this 
 country, whether he is fettled here before, or 
 arrives after, the commencement of hoftilities, 
 praclife againft the life of the king, the of- 
 fence is high treafon. So that iir Edward 
 Coke's * pofition, that an alien enemy cannot 
 
 For this was holden to be an office of truft within the 
 a&s of parliament relating to this matter, and that a foreigner 
 (though naturalifed) was ineligible. (Burr. 27873790.) 
 
 1 i Hawk. 35, with the notes and additions. 
 
 3 Inft. 4, 5. 
 
 be
 
 380 Qftbeftafe offerfons, and LECT. 14. 
 
 be guilty of high treafon, muft be underilood 
 with this reftricTion, namely, where he in- 
 vades this country, and is taken in war ; in 
 which cafe indeed he is not punifhable at all 
 according to the courfe, or by the rules, of 
 municipal inftitutions, but is to be dealt with 
 according to the law of nations in martial 
 affairs. 
 
 It hath been * refolved, that, if a natural 
 born fubject affect to caft off his allegiance, 
 and to transfer his fubjection to a foreign 
 prince, flill he may fuffer as a traitor, if he 
 commit, what in others would amount to. 
 that crime. Such is legally fuppofed to be 
 the infeparable quality of y allegiance arifmg 
 from birth. That a foldier, fighting under a 
 foreign commiffion, according to the general 
 laws of arms, ihould be arraigned as a traitor, 
 inftead of being treated as a public enemy 
 and prifoner of war, may at find fight have 
 an air of rigor and feverity. But the nation's 
 fafety requires, that this fhould be the invari- 
 able principle in refpedt to natural born fub- 
 je&s, and that there mould be no withdraw- 
 ing of allegiance, no countenance allowed to, 
 
 * 1 Hawk. 35. J See AyliSe, civ. law, b. ii. t. 3. 
 
 fuch
 
 I/E c T . 1 4. frji of thejiate of alienage. 381 
 
 fuch a defence. The law z was therefore fo de- 
 clared to be even in the cafe of a culprit, who, 
 tho found by the verdict to have been born in 
 this ifland, was from infancy educated abroad 
 with foreign interefts and afFedions. Indeed 
 his commiffion was deftined for an enterprife 
 to place a pretend&r on the throne. But the 
 jury humanely recommended him to mercy, 
 and he was pardoned on condition of retiring 
 and abiding beyond feas during life. 
 
 It is declared by a * ftatute above cited, 
 that every alien, refiding within the king's 
 dominions, mall be bounden by and unto the 
 laws and fbtutes of the realm. Reafon and 
 humanity may interpofe againft the ftric~t ex- 
 ecution of the law, but not difprove (per- 
 haps) the juftice of the eftablimment itfelf. 
 A b French prifoner of war being in dieted 
 for privately ftealing, in the mop of a gold- 
 fmith and jeweller, a diamond ring, which 
 is an c offence punimable with death, the 
 judge who tried him thought it improper to 
 proceed capitally upon a local inftitutiori, and 
 therefore advifed the jury to find him guilty 
 
 * Foft. 59 &c. a 32 H. VIII. c. 16. 
 
 * f oft. *88. c St. 10 fc i W. III. c. 23. 
 
 pf
 
 382 Qfthejlateofperfon^and LECT. 14. 
 
 of fimple larceny only. The judge's huma- 
 nity is at leaft more confpicuous than the 
 foundnefs of the principle, as a point of mere 
 law. But in another matter the benignity 
 of Englifh judges is unclouded with any legal 
 doubt, I mean, that d aliens were compre- 
 hended in the fktute for extending the bene- 
 fit of clergy, according to a very old interpre- 
 tation of that law. 
 
 In the above-mentioned inftance of trea- 
 fon, it appears, that no individual, according 
 to the ideas of Englifh jurifprudence, can fo 
 transfer his allegiance to a foreign power, as 
 to ceafe to be fubject to the laws of his na- 
 tive country, refpe&ing that crime. But 
 when by treaty, efpecially if ratified by aft of 
 parliament, our fovereign cedes any ifland or 
 region to another ftate, the inhabitants of 
 fuch ceded territory, though born under the 
 allegiance of our king, or being under his 
 protection while it appertained to his crown 
 and authority, become, I apprehend, effe&u- 
 ally aliens, or liable to the difabilities of alien- 
 age, in refpeft to their future concerns with 
 this country. And fimilar to this I take to 
 
 *z Hawk. 338. 
 
 be
 
 L E c T . 1 4. frfl of the ft ate of alienage. 383 
 
 itei ' ' ' '' ~& 
 
 be the condition of the revolted Americans, 
 fince the recognition of their independent 
 commonwealths. 
 
 What I have hitherto faid of the privileges 
 of aliens, applies only to fuch ftrangers, 
 whofe ftate is in amity with our fovereign. 
 For an alien enemy cannot in reafon be in- 
 titled to any privilege or protection from our 
 laws, except perhaps as to atrocious attempts 
 on his life, or in other flagitious cafes. But an 
 alien enemy, who c comes here by letters of 
 fafe conduct, or refides here by the king's li- 
 cence, may maintain an action, as on a bond. 
 This feems a great f abatement of the antient 
 rigor. Another * inflance of the like nature 
 is, that the old opinion, that Turks and 
 infidels are perpetually to be confidered as 
 alien enemies, has been long exploded. It 
 feems alfo, that h an alien enemy may fue in 
 
 auter 
 
 * Lord Raym. 382. Sal. 46. Lut. 34, 35. 
 f i R. A. 195. 
 
 t Sal. 46. Such aliens may fue In equity fbr any per- 
 fonal demand, (i Atk. $1-) / 
 
 k Skin. 370. By tfo determinations of the king's bench, 
 both in the prefent reign, it might fecm, that an alien enemy 
 might fue en a ranfom bill, given for the difcharge of a captured 
 (Burr. 1734 &c. I Black. 563 &c.) But by a ilill later 
 
 decifioa
 
 384 Of the flat c ofperfons, and LECT. 14. 
 
 auter droit, (according to the legal phrafe, 
 that is, in another perfon's right) as where 
 fuch foreign plain tiff brings the action as ex- 
 ecutor. For tho it may be urged, that 
 this may tend to enrich foreign enemies, and 
 that private convenience muft give way to 
 public utility, yet as the goods of the teftator, 
 who was not an alien enemy, are not forfeit- 
 ed, and as the executor recovers them for 
 others, being perhaps the king's fubjedts, as 
 creditors for inflance, who might otherwife 
 lofe their juft debts, it is more reafonable and 
 confcientious, that fuch action mould be al- 
 lowed. 
 
 The property of an alien, reiident abroad, 
 confifting of flock in the public funds, or 
 other perfonal effects in this country, is ' fub- 
 jedt to the control of the court of chancery. 
 
 decifion the contrary do&rine is eftablifhed, viz. that an alien 
 enemy cannot, by the municipal law of this country, fue for the 
 recovery of a right claimed to be acquired by him in aftual war. 
 (Dougl. 649, 650. n.) It does not appear, whether the admi- 
 ralty prize court could have given relief on fuch ranfom bills; 
 nor is it now important to inquire ; for they are utterly prohi- 
 bited by ft. 22 G. III. c. 25. The fame rules obtain in regard 
 to alien enemies, fuing in equity as{ law. (Mitf. j88. * n. 
 ad cxl.) 
 
 1 i Atk. 19. 
 
 But
 
 1ECT.I4. faft J thejlate of alienage. 385 
 
 But if an alien, refident abroad, dies in- 
 teftate, his whole property here is diftri- 
 butable according to the laws of the country, 
 where he fo re fides. For* k as was once ob- 
 ferved by lord Hardwicke, no foreigner could 
 otherwife deal in our funds, but at the peril 
 of his effects going according to our laws, 
 and not thofe of his own country 4 The l lo- 
 cality of the abode at the party's death deter- 
 mines the rule of diftribution : but it muft be a 
 ftationary, not an occafional, refidence, in order 
 that the municipal inftitutions may attach on 
 the property. Thus the foreign property of 
 a British fubjec~t, whether dying inteftate here 
 or abroad, unlefs domicild there, and whether 
 confifting in public funds or banks, (in locis 
 montium, as fome foreign jurifts of thefe late 
 ages term them) or otherwife, is governed, in 
 point of diftribution, by the laws of this 
 country : that is, unlefs a general or partial 
 confifcation takes place by the laws of the 
 country where the property is -, as in * 
 France, the effects of aliens dying there were 
 
 heretofore 
 
 * Ambl. 47. ! Ambl. 25 &c. 415, 6. 
 
 m This prerogative of the French crown, I underftand, was 
 relinquiftied in favor of the natives of fuch countries where a 
 
 Cc * e
 
 386 Of the Jlate of perfons, and LECT. 14. 
 
 heretofore forfeited to the crown. This was 
 called jus albinatus, from * the words alibi na- 
 t-us : but two exceptions were admitted, one 
 in favor of merchant ftrangers coming to the 
 fair of Lyons ; the other, where the deceafed 
 left children, or relations, born in France. 
 
 The p iiTue of an alien, born within the 
 realm, are accounted natural fubjefts : in 
 which refpecl, there is q not, (tho fir William 
 Blackftone r fuppofes the contrary) any diffe- 
 rence between our laws and thofe of France. 
 In each country birth confers the rights of na- 
 turalifation. 
 
 The alien himfelf may be made a denizen 
 by the king's authority ; which s is an incom-. 
 municable prerogative of his fovereignty : for 
 he cannot grant a power of making denizens 
 to others. Denization ' may be granted for 
 
 like confifcation did not prevail, before the late revolution, and 
 is completely abrogated fince that event. 
 n Spelm. gl. v. albanus. 
 
 Domat. vol. i. p. 567. and vol. ii. p. 360, 361. (Strahan's 
 ed.) 
 
 * i Inft. 8. a. 
 
 * Domat. vol. ii. p. 360. (Strahan's ed.) 
 . r i Black, comm. 374. 
 
 2 Rol. 93. 7 Co. 25. b. Calvin's cafe. 
 
 ^ 28.01.95. 2 Cro. 539. 7 Co. 5. b. 6. a. Calvin's cafe. 
 i Inft. 1 29. a. 
 
 years,
 
 L E c T . 1 4 . Jirfl of the ft ate of alienage. 387 
 
 years, or for life, or to the alien born and the 
 heirs of his body, or his heirs generally, or 
 for particular purpofes and intents and no 
 farther, or upon condition. By a u ftatute, 
 above repeatedly referred to, all denizens mall 
 be obedient to the laws, and a provifo, con- 
 taining this requifition, fhall be inferted in 
 the letters patent. Yet this does not form a 
 condition r , properly and technically fo called ; 
 for if fuch denizens tranfgrefs the laws, the 
 eftablifhed punifhment for their delinquency, 
 as in the cafe of others, may indeed be in- 
 flicted, but x the denization is not void. 
 
 A denizen y may purchafe lands, and tranf- 
 mit them to his heirs, that is, to ilTue born 
 after, but not to thofe born before, the grant 
 of the letters patent, neither does he acquire 
 in himfelf a right of taking by inheritance. 
 
 The effect of naturalifation, which * can 
 only be accomplimed by act of parliament, is 
 more extenfive -, and, till a ftatute * pafled 
 about the beginning of this century, it con- 
 
 32 H. VIII. c. 16. * i R. A. 195. 
 
 r i Inft. 8. a. * i Veot. 419. 
 
 12 & 13 W. III. C. 2. 
 
 C c 2 ferred,
 
 388 Of the ft ate cfperfons, and LECT. 14. 
 
 ferred, as the expreffion feems to denote, the 
 full and unqualified privileges of a fubject 
 born within the king's dominions. But by 
 that law, all aliens, except fuch as are born 
 of Engliih parents, fhall not, tho naturalifed, 
 be capable to be of the privy council, or a 
 member of either houfe of parliament, or to 
 enjoy any office, or place of truft, either civil 
 or military, or to have any grant of lands, te- 
 nements, or hereditaments, from the crown to 
 themfelves, or to any other, or others, in trufl 
 for them. This ad: is inforced by the ft. i G. I. 
 ft. 2. c. 4, but with this exception, that it 
 fliould not extend to incapacitate any perfon 
 who was naturalifed at or before his then Ma- 
 jefty's acceffion to the throne. Laftly, by 
 the ft. 7 J. I. c. 2, no perfon mail be natu- 
 ralifed who is not of the age of eighteen years, 
 and has not received the facrament within 
 one month before the bill is exhibited for 
 that purpofe - 3 and the oaths of allegiance and 
 fupremacy are to be adminiftered in the par- 
 liament houfe. Thefe precautions future 
 parliaments may indeed fupercede, by a re- 
 peal at the time of naturalifation. But 
 they indicate, and feem intended to apprife 
 fuch future parliaments of a warrantable 
 
 jealoufy,
 
 LECT. 14. firjl of the ftate of alienage. 389 
 
 jealouiy, and a reafonable apprehenfion of 
 the dangers, that might enfue, by uncondi- 
 tionally and unreftriftively extending to fo- 
 reigners the rights of Englifh liberty and 
 law. 
 
 C c 3 LEG-
 
 390 Of illegitimacy, infancy 9 LECT. 
 
 LECTURE XV. 
 
 Of the Jt ale of illegitimacy, infancy , #*/ non* 
 fane under/landing. 
 
 II. ' | ^ H E next diftindlion, which I am 
 JL to mention in thefe difquifitions de, 
 Jiatu bominum, (following the phrafe of the ci- 
 vilians) is that, which prevails between per- 
 fons legitimate and illegitimate. 
 
 The Roman a civil law, in the latter ages of 
 it, accounted thofe legitimate, whofe parents. 
 intermarried after the birth of fuch ifliie. 
 The b nioft antient form of nuptials among 
 that people, called nuptite ex ufu, was not 
 completed till after cohabitation for a year; 
 and, as iffue might be born within this period, 
 the later emperors might think there was 
 fome ground for allowing the fame latitude of 
 legitimation, when the marriage was con- 
 
 Inft. 1. i. t. io. le. 13. b Tayl. civ. law, t. 
 
 3 traded
 
 L E c T . 15. and nonfane under/landing. 39? 
 
 tracted in a different mode. I fay the later 
 emperors, for Conftantine c , who was the 
 original author of fuch a conftitution, is fup- 
 pofed to have intended it as an encouragement 
 to thofe, who had children born in concu r 
 binage, to marry the mothers of fuch ofTV 
 fpring, and to have meant it only as a tempo- 
 rary ordinance, including children then actually 
 born, and not as a permanent law, extending 
 to fuch iflue as mould be fo born in future ages. 
 However the founders of the canon law ad-r 
 mitted the fame indulgence without referve ; 
 and becaufe it was received by the church, the 
 prelates at the parliament in the twentieth 
 year of Henry the third's reign, ftrongly con- 
 tended to have this principle of legitimation 
 incorporated with the laws of England : but 
 their zeal failed of its defired fuccefs. 
 
 i. In our law, therefore, the common de- 
 fcription of a baftard, is one born out of 
 lawful marriage. This is the truth, but it is 
 not the whole truth : for, according to the 
 more recent determinations, fome of thofe, 
 who are born within lawful wedlock, may be, 
 accounted baftards. Antiently the dodtrine 
 
 c Heinec. de legiumatione, 23. (vol. iv, p. 115.) 
 
 C c 4 was,
 
 39* Of illegitimacy, infancy, LECT. 15. 
 
 was, that if the hufband was within the four 
 fcas, which are claimed as part of the domi- 
 nions of the crown of England, in fuch cafe 
 no proof mould be admitted of his non-accefs 
 to his wife, and the ifTue mould implicitly be 
 reputed legitimate. But this notion has been 
 effectually over-ruled and exploded in a mo- 
 dern d cafe, in which proof of non-accefs by 
 the hufband was received, and the jury ac- 
 cordingly found a verdict again ft the legiti- 
 macy, 
 
 2. Sir Edward Coke e admits, that if the 
 hufband hath an apparent impoffibility of pro- 
 creation, as if he be only eight years old, 
 the ifTue will be baftards. But in a cafe f , 
 where the court permitted proof to be at- 
 tempted of the hufband's inability, from a bad 
 habit of body, which evidence amounted 
 to improbability merely, and not an impof- 
 fibility, the jury found a verdict in favour of 
 the legitimacy of the claimant. 
 
 3. After a divorce 5 a menfa & toro, it is 
 the intendment of law, that the parties did 
 
 * Str. 925. i Inft. 244. a, f Str. 940, i, 
 
 * Sal. 123. 
 
 ncr*
 
 LECT. 15. and nonfane under/landing . 393 
 
 not cohabit in difobedience to the fentence of 
 the ecclefiaftical court; and therefore the ifiue 
 ttt prima facie baftards : yet if actual accefs, 
 tho contrary to fuch fentence, mould be ex- 
 prefsly proved, the former prefumption is 
 deftroyed, and the iffue are accounted legi- 
 timate : for the relation of hufband and wife 
 is not diffolved. If a h divorce a ijmculo ma- 
 trimomi be pronounced in the fpiritual court, 
 this baftardifes the ifTue born before, as well 
 as after, the fentence; becaufe it can only be 
 awarded for fome caufe, which made the mar- 
 riage null and void ab initio. In old times, 
 if the * divorce were caufd profej/ionis, that is, 
 on account of belonging to fome monaftic 
 order, the fon might inherit, arid the wife be 
 indowed. For entering k into religion as a 
 profefled monk, or nun, did not diflblve the 
 vinculum matrmonii: tho I fuppofe the mar- 
 riage was void ab initio, when in fad: it was 
 pofterior to the vow of chaftity and profef- 
 fion. But it appears, that ' if a deacon or 
 prieft, (that is not a regular, but fecular ec- 
 clefiaftic) contracted wedlock, even after or- 
 dination, in times when fuch marriages were 
 
 i R. A. 360, * Yearb. M. 47. E. III. pi. 78. 
 
 * I R. A. 340. ' * i R. A. 340. 
 
 prohibited.
 
 394 Of illegitimacy, infancy* LECT. 15. 
 
 prohibited, yet the nuptials were not abfo- 
 lutely void, nor the iiTue baftards, unlefs a 
 fentence of divorce took place in the life- time 
 of the parents. Where parliament diflblves 
 a marriage for a caufe fubfequent thereto, 
 there is no neceffary or general occafion for 
 reputing the children illegitimate. 
 
 4. Laftly m , the uTue of a fecond marriage, 
 contracted while the former hufband or wife 
 is living, are evidently baftards, fuch fecond 
 marriage being wholly void. 
 
 Our ftatute law hath provided compulfory 
 means for the maintenance of " baftards, with 
 cautionary regulations, antecedent to their 
 birth. 
 
 Their civil condition differs in very few 
 particulars from that of other children. The 
 principal diftindtion between perfons legiti- 
 mate and illegitimate is the incapacity of the 
 latter of taking lands and dignities by here- 
 ditary defcent, and of fucceeding as next of 
 kin to perfonal property. For our law does, 
 
 * i R. A. 340. 357. 360. " Sho. 184. 
 
 not
 
 L E c T . 15. and nonfane under jlanding. 
 
 not imitate the imperial inftitutions, in di- 
 viding baftards into feveral kinds; and the 
 rule I have laid down is univerfal, unlefs 
 |he following inftance be confidered as a 
 fingle exception to it j according to which,, 
 a baftard, whofe parents intermarry after his 
 birth, and fuch only, has fome fort of favor 
 in refpect even to inheritances : he is legiti- 
 mate, as we have juft feen, according to the 
 rules of the fpiritual or canon law : with us 
 he is termed baftard eigne; and, provided there 
 be a fecond fon born after the intermarriage 
 of the fame parents, he is ftiled mulier puifne. 
 In this cafe p , if the father dies feifed of an 
 hereditary eftate, and the baftard enters on it, 
 and enjoys it during his life, and after his 
 deceafe his heir, that is, fome lineal defcen- 
 dant, enters, the mulier puifne t tho he might 
 have claimed before fuch defcent was caft, is 
 
 * By the Roman civil law there were four forts of baftards, 
 thofe born of a concubine, of an adulterefs, of a harlot, and the 
 offspring of an inceftuous marriage : thofe of the firft clafs had 
 a right of fucceffion to the effefts of their female parent aad her 
 anceftors ; and where there was no legitimate offspring, or wife 
 of their reputed father, they were alfo intitled, whether one or 
 more, to a fixth part, as well as their mother, of bit undevifed 
 property. Nov. Ixxxix. c. 12. 4. A) I. civ. law, b. ii. t. 7. 
 b. iii. t. 25. 
 
 9 Lit. 399. Co. ibid. 
 
 now
 
 396 Of illegitimacy, infancy, LECT. 15. 
 
 now barred for ever. But the baftard can 
 have no heirs except his own iffue. He may 
 indeed take an eftate to him and his heirs gene- 
 rally, in other words, a fee fimplej yet it will 
 not come by defcent to his legitimate brother 
 born of the fame parents, (in cafe the baftard 
 dies without iffue, and without having dif- 
 pofed of fuch eftate) but will efcheat to the 
 lord, of whom it was holden. For a baftard, 
 by the laws of England, is incapable of tranf- 
 mitting real or perfonal property, by inheri- 
 tance or fucceffion, except to his wife and his 
 lineal defcendants. But, as among them, 
 his perfonal effects, if he dies inteftate, are 
 diftributable as in the cafe qf others : his wife 
 may alfo claim her dower, and his children 
 inherit to landed pofTeflions, without any im- 
 pediment from the illegitimacy of their re- 
 fpective hufband and father. For a baftard, 
 when he hath acquired a name by repu- 
 tation, is equally capable as thofe, who are 
 legitimate, of taking, by purchafe, (a term 
 before explained) an eftate of inheritance ia 
 fee fimple or fee tail. But if land be limited 
 in remainder to the eldeft fon of A, who hath 
 afterwards a baftard born, being his eldeft fon, 
 fuch illegitimate offspring will not, according 
 
 to
 
 LECT. 15. and nmfane under/landing. 397 
 
 to fir Edward Coke \ be intitled to the benefit 
 of the claufe ; tho, as we have before feen, it 
 would be an operative provilion in favour of 
 iflue afterwards born in lawful wedlock. 
 
 Laftly, if a baftard, poflefled of perfonal 
 effects, dies inteftate, and without wife or 
 children, the crown ' is intitled to fuch pro- 
 perty, including leafes or terms of years. The 
 king, or other immediate lord of the fee, is 
 alfo intitled to a real eftate of inheritance, of 
 which a baftard dies feifed, without having 
 .devifed it, and without leaving iflue. This is 
 the refult of a baftard's being fuppofed to 
 have no other relations, no heirs, or next of 
 kin, except thofe accruing from his own con- 
 tract of marriage, namely his wife and progeny. 
 But the rigorous exertion of this prerogative 
 would in many obvious cafes carry the ap^ 
 pearance of great hardfhip. It is ufual there- 
 fore to make over the royal claim to the baf- 
 tard's kindred, (as we may call them in com- 
 mon fpeech) but not, I believe, as a matter fo 
 abfolutely of courfe, nor in fo perfectly gra- 
 
 4 i In (I. 3. b. But in a note in the ijth edition, this 
 do&rine is queftioned. 
 ' 3 Wins. 33,34. 
 
 tuitous,
 
 Of illegitimacy, infancy, LECT. i r^ 
 
 tuitous, unconditional) and un referred a man- 
 ner, as might perhaps be apprehended * from 
 the words of fir William Blackftone; and 
 which indeed could not reafonably be ex- 
 pedled. 
 
 III. The next diflin&ion to be mentioned 
 is that which prevails between minors and 
 perfons of full age* 
 
 In our * law, a man or woman, till the age* 
 of twenty -one years, or, to be more exaft, 
 till the day next preceding the twenty- firft 
 anniverfary of their birth, is fliled an infand 
 By the Roman law, the age of majority was 
 twenty-five years. With us alfo we fre- 
 quently hear, in common fpeech, of a perfon's 
 not coming to age till that or fome other 
 time fubfequent to the legal duration of mi- 
 nority. By which is to be underftood no 
 more than that fuch is the period fixed for 
 receiving a legatory portion, or devife of land* 
 by the will of a parent, or other teftator.- 
 
 1 2 Black, com. 506.- -It is ufual, I underftand, to referve 
 one tenth, or other fmall proportion, of the value> both of real. 
 and perfonal property. 
 
 t xlnft. 171. b. Sal. 44. 
 
 For
 
 I.ECT. I5 and nonfane under/landing. 399 
 
 For private perfons cannot either prolong or 
 fhorten the continuance of the legal incapa- 
 cities of infancy. It is fometimes faid like- 
 wife, in ordinary difcourfe, that the prince of 
 Wales becomes of age at fourteen years. 
 The truth is, if he fucceeds to the throne, 
 even in childhood, the legal defects of infan- 
 cy are not imputed to him, nor to the acts 
 done by his royal authority. The power of 
 a protector has indeed fometimes ceafed about 
 the age juft mentioned. But while the prince 
 remains heir apparent only, his age of mino- 
 rity is of the fame duration as in the cafe of 
 inferior fubjects. 
 
 The incapacities of infants are chiefly in- 
 tended for their benefit. Their devifes and 
 bequefts, and other particulars relating to 
 them, may more properly be referved for fu- 
 ture inquiry. I mall here however firft take 
 notice, that " certain of their acts are abfo- 
 
 lutely 
 
 w Burr. 566. marg. The importance of this difference, 
 which is not very obvious to perfons little converfant in our law, 
 may be partly conceived from one example. Contingent re- 
 mainders, which I {hall for the prefentonly call precarious interefts 
 in expectancy, muft veft, when the particular eftate, which is ne- 
 ceflary to precede and fupport them, determines, or can never 
 veft at all. Now, if the proprietor of this prefent preceding 
 right furrenders it, tho fuch furrender be voidable, yet it pafles 
 
 his
 
 400 Of illegitimacy y infancy, LfecT. 15$ 
 
 lutely void, and others only voidable. It hath 
 been generally x aflerted, that, if an infant at- 
 tempt to make a conveyance of his eftate, 
 which is not to inure by a folemn act done 
 perfonally by himfelf, (as by making livery of 
 feifm, as it is called) nor is inforced with the 
 flrong ratification of a fine or recovery, nor 
 boars a femblance of advantage to himfelf, 
 fuch conveyance is abfolutely void. But it 
 feems hardly poffible, fmce the y reafoning of 
 the court in a cafe tranfmitted to us by a late 
 reporter, but that almofl every conveyance by 
 an infant would be deemed voidable only, and 
 not wholly void. A conveyance to z an infant, 
 which he may indeed difagree to at his age of 
 majority, is clearly only voidable. >The ge- 
 neral rule is, that a the deeds of infants are 
 only voidable; powers of attorney are ex- 
 ceptions to it ; but a power to receive feifin 
 of an eflate is excepted out of that exception. 
 
 his eftate, and confequently deftroys the contingent remainder; 
 but if it be abfolutely void, it paffes no eftate, and the con- 
 tingent remainder is faved. (Lord Raym. 313 &c.) To under- 
 ftand this fully would require a copious illuftration ; To much is 
 alleged to intimate that there may be an eflential difference 
 between afts void and voidable, (i R. A. 730. 1. 50. 2 Inft. 
 483. Str. 94.) 
 
 x Perk. t. grants, "12, 13. r Burr. I/94&C. 
 
 i Inft, 2. b. i R. A. 730. Burr. 1805.1808. 
 
 4 For
 
 L E c T . 15. and nonfane under/landing. 40 1 
 
 For the end of the privilege is to protect in- 
 fants. To that object, therefore, all the rules, 
 and their exceptions, muft be directed. 
 
 But certain acts of infants are neither void- 
 able nor void. For, firft b , infants, feifed of 
 an advowfon, may prefent to the vacant be- 
 nefice at very tender years. As to contracts 
 entered into by infants, a c learned civilian and 
 canonift doles the account, which he gives 
 of the imperial institutions relative to this fab- 
 ject, with the following expreffions : " hence it 
 appears," fays he, " that, tho minors may fome- 
 times be relieved in refpect to their own acts, 
 yet this is not always true: for if it were, 
 they would be deprived of all human com- 
 merce and dealing ; fmce no one would be 
 willing to con tract with them : and this might 
 be a great prejudice to them in regard to the 
 neceffaries of life." The fame reafoning is 
 adopted and better illuftrated by the court in 
 a cafe above alluded to ; when it was obferved, 
 <{ that d miferable mud the conditio.n of mi- 
 nors be, excluded from the fociety and cqm- 
 
 fc Vin. abr. t. collation, A. pi. 10. 3 Inft. 156. Watf. 
 c. xiii. prope fin. Burn's eccl. law, t. benefice, fubdiv. prefen- 
 fation. 2 Cro..99. 2 ^ >c (- ca< a ^ r> S 1 ^ ^ c - 
 
 e Ay], civ. law, b. ii. t. 41. * Burr. 1801. 
 
 D d merce
 
 402 Of 'Illegitimacy ', infamy, LECT. 15. 
 
 merce of the world, deprived of neccflaries, 
 education, employment, and many advantages, 
 if they could do no binding, acts. Great in- 
 convenience muft arife to others, if they were 
 bound by no act. The law therefore, at the 
 fame time that it protects their imbecillity and 
 indifcretion from injury through their own 
 imprudence, enables them to do binding acts, 
 for their own benefit, and without prejudice 
 to themfelves, for the benefit of others.'* 
 Thus if an infant then contract for necefTaries, 
 it binds him. But e if he execute an obliga- 
 tion with a penalty, tho for the payment of 
 neceflaries, the bond is voidable. What mall 
 be deemed neceflaries depends partly on the 
 minor's rank and quality : but f the court has 
 refufed to confider fuits of rich apparel in that 
 
 * i Inft. 172. a. Mo. 679. i Cro. 910. i Lev. 86.- i? 
 It feems, an infant may bind himfelf by a promifory note given 
 for necefiarics : but an aftion. does not lie on an account Jiated, 
 tho for neceffaries. (i Durn. & Eaft 40 &c.) 
 
 f l Cro. 583.-! Inftruding an infant in a ufeful trade 
 
 feems to fall under the term " neceflaries." (i Durn. & Eaft 
 40 &c.) And altho the contraft be not ftriftly for neceffaries, 
 and therefore voidable, ftill it may be ratified by a promife after 
 fhe age of majority : and in fuch cafes, the proof of infancy 
 Jie on the defendant, within whofe knowledge that faft is. 
 (j Durn. & Eaft 648, 9. ^ Durn. & Baft 766.) 
 
 AH
 
 L E c T . 15. and nsnfane under/landing. 403 
 
 All a<tions, real, perfonal, or mixed, may, 
 in general, be brought by, or againft, an in- 
 fant. As plaintiff, he may fue by guardian, 
 or next friend; he muft defend a fuit by 
 guardian only. In actions, by which real 
 property is demanded, or directly charged, 
 it may be prayed indeed, that the parol may 
 demur till the infant's age of majority, that is, 
 that the pleadings, which were antiently oral, 
 may be flayed till that time. The exceptions 
 to this rule are clearly and fuccin<tly noticed 
 by s fir William Blackflone. The practice 
 arofe from the fuperior consideration, paid by 
 the old law to any freehold intereft. For 
 actions affecting the perfonal property of an 
 infant to any amount may, during his mi- 
 nority, proceed to judgment, as where he is 
 an executor, or legatee, or interested as next 
 of kin in the effects of an inteflate. Suits 
 may alfo proceed againft him, on his own 
 contract, for providing him with necefTaries, 
 or to recover damages, where he has com- 
 mitted any actionable injury. As to litiga- 
 tions in equity, it is faid h , that an infant may 
 fue by guardian -, it is ufually done however 
 
 * 3 Black, comm. 300, and fee Pr. reg. chanc. 194. 
 
 * fr. reg. chanc. 194. 
 
 Dd z by
 
 404 Q/" legitimacy, infancy, .LECT. 15. 
 
 by his next friend : he muft indeed defend a 
 fuit by guardian. The * anfwer is put in on 
 the oath of fuch guardian, not of the infant 
 himfelf, and therefore cannot be read in evi- 
 dence againil him. In fuits in equity, the 
 infant has generally a day appointed after 
 his full age, for difputing any decree ma- 
 terially affecting his property ; which is 
 fomething analogous to the demur of the 
 parol in actions at common law. Where an 
 * infant has not the beneficial intereft in lands, 
 but is feifed of a legal eftate therein, in trull 
 for others, and where alfo he becomes intitled, 
 as a mortgagee, by defcent or otherwife, and 
 the mortgageor is defirous of redeeming, in 
 either of thefe cafes he is impowered, by the 
 ft. 7 A. c. 19, to convey the premises to the 
 perfons intitled thereto, under the direction of 
 the court of chancery. 
 
 Infants may be bound apprentices by the 
 cuftom of London, and in other places by a 
 general ' ftatute : but m they cannot be fued 
 in an action of covenant for a breach of the 
 articles contained in the indenture. There, 
 
 5 3 Wms. 237. k See Ambl. 624. St. El. 
 
 c, 4. w j Cro. 179. 
 
 i
 
 fc E c T . 15. and nonfane undcrjlanding. 405 
 
 is alfo a defect of reciprocal obligation in 
 the following inftance, namely, that n an 
 action may be brought on a promife of 
 marriage made to an infant: yet againft an 
 infant no fuit can be maintained on fuch con- 
 trad. 
 
 A* minor is incapable of the grant of a 
 judicial office, to be perfonally exercifed by 
 him, as the ftewardmip of a court leet. But 
 he p may take a grant of a miniflerial office, 
 to be exercifed by himfelf or fufficient depu- 
 ty, as the regifterfhip of an epifcopal jurif- 
 diction. For the fame reafon, an infant may 
 .be made executor, becaufe an administrator 
 may be appointed durante minore atate. But 
 it feems, as an infant is under difabilities of 
 acting in his own private affairs, he cannot 
 properly be employed in a public trufl, as 
 the 1 mayoralty of a corporation, nor is T he 
 eligible to be a burgefs in fuch community. 
 The ' flatutes, which declare the incapacity 
 
 Str. 938,9. i Inft. 3-b. (13 ed.) 1 Cro.637. 
 
 > 2 Cro. 279. Cowp. 222. i B. R. temp. Hard. 8, 9. 
 
 * Cowp. 220 &c. * St. 7 & 8 W. III. c. 25. 8; Sc 
 
 c. 32. 4. 
 
 Dd 3 of
 
 40 6 Of illegitimacy, Infancy, L B c T . 15, 
 
 of minors to fit in parliament, or ferve on 
 juries, were * both in affirmance of the ante- 
 cedent common law. 
 
 Such therefore are the incapacities by 
 which infants are diftinguifhed in our laws 
 from adult perfbns. 
 
 IV. The laft incapacity to be mentioned 
 is the ftate of perfons labouring tinder a defect 
 of their memory and rational under/landing. 
 Thefe are ' distinguished by our kw into 
 idiots, whofc impotence of mind is fuppofed 
 to have been from their birth, and lunatics, 
 who have fince fallen into a ilate of infinity. 
 The king * is the primary guardian of both, 
 as the protector of fuch of his fubjecls, who 
 cannot defend, or govern, themfelves or their 
 property. But this r branch of authority is 
 exercifed by the lord chancellor, lord keeper, 
 or lords commifEoners of the great feal, not 
 
 * 4 InfL 47. i Inft. 157. a. Lit. 259. 
 
 * I I :- 247. a. 2 Wins. 265. 
 
 * St. pnerog. regis 17 E. JI, c. 9 & 10. Bat tie prero- 
 gative fcxifted before that early &ttme. { Arobl. 717.) 
 
 * 3 Wan. 107, 8. 
 
 merely
 
 t E c T , 1 5 . and nonfane undcrftandlng. 407 
 
 merely as fuch, but by virtue of a fpecial com- 
 miiiion for that purpofe ; and from the de- 
 terminations in chancery, an appeal lies ia 
 thefe cafes, not to the houfe of lords, but to 
 the king in council. 
 
 On thefe occafions, the courfe is for a 
 com million to illue, on an appb" cation made 
 to the court of chancery for that purpofe, to 
 inquire by the oaths of a jury, whether the 
 peribn pointed out is really of unfound mind, 
 and from z what time he hath been in that 
 ftate j if he is * found fb by the verdift, a 
 * committee is appointed of his perfon and 
 of his eftate ; and then all neceflary direc- 
 tions, fubfequent thereto, .are tranfa<3:ed in 
 a fummary way, being refpe&ively brought 
 on from time to time by petition. Of this 
 nature, among others, are the orders to be 
 given in purfuance of the c flat. 4 G. II. c. 
 
 * i Chanc. ca. 112, 3. 
 
 1 The finding muft be pofirive as to the lunacy. Where a 
 fpecial return was made, the lord chancellor obfenred, that if it 
 had not been filed it had been no return ; bat being filed it muft 
 be quaihed, and an alias commifiion go. (Sei. ca. chacc. 
 
 470 
 
 k Such committees will not be allowed any thing for their 
 trouble : but under particular circumitances, the maintenance 
 wfll be increased. (Ambl. 78.) 
 
 c See Ambl. So. 
 
 D d 4 10,
 
 408 Of illegitimacy y infancy, LECT.I. 
 
 10, which enables lunatic truftees and mort- 
 gagees to convey the eftates, legally vefted in 
 them, by their committees, analogous to the 
 power, which I have mentioned as given to 
 infants by a former ftatute above cited. The 
 court exercifes its authority, where d the per- 
 fon of the lunatic is amenable, but the pro- 
 perty Out of the jurifdiction ; and alfo e where 
 the lunatic is abroad, for the jury may be fa- 
 tisfied without an infpection. In the direc- 
 tions to be given, after providing for the 
 comfort of the lunatic, it is { a rule never de- 
 parted from, not to change, or fufFer to be 
 changed, real into perfonal property, or vice 
 verfe, fo as to alter the fucceffion to it. And 
 
 */ 
 
 a bill g will not lie in the lunatic's life time to 
 perpetuate the teftimony of witneffes to his 
 will made before his lunacy : for the lunacy is 
 no revocation : all remains \x\Jlatn quo: there- 
 fore alfo, h after a lunatic's deceafe, an order 
 may be made in his affairs. 
 
 Where much money is expecled to pafs 
 through the hands of the committees of lu- 
 
 * Ambl. 8 1, 82. Ambl. 109. &c. 
 
 f Ambl. 81. See 2 Vern. 192, 3. 
 
 8 I Vern. 105, 6. h Ambl. 706 &c, 
 
 natics,
 
 L E c T . r 5 . and nonfane under/landing. 409 
 
 natics, by rents, the payment of mortgages, 
 or the like, the court is careful to take * <Ce- 
 curity from thcfe receivers to an adequate 
 amount. But fuch committees have no 
 power to prefent to a vacant benefice. 
 Where the lunatic is feifed of the advowfon, 
 the chancellor, by virtue of the general au- 
 thority delegated to him before mentioned, 
 prefents to the preferment, whatever be the 
 value of it, generally however giving it, if 
 an opportunity offers, to one of the family. 
 This right was afferted firft, I believe, by lord 
 Talbot, whofe example was followed by his 
 immediate and other fucceflbrs. 
 
 From what has been already faid, it ap- 
 pears, that a lunatic k is capable of inheriting 
 eflates, like others : he ' may alfo acquire 
 them by grant : or if he be in poverty, m he is 
 to be maintained at the place of his lafl legal 
 fettlement. By the vagrant n aft, juflices of 
 the peace and parim officers are authorifed to 
 put lunatics under proper reflraint : which 
 
 1 See Ambl. 104. 707. 
 
 * 1 loft. 8. a. ' I Inft. 3. b. 
 
 ? * Sal. 427. St. 17 G. II. c. 5. 20, 21. 
 
 relates
 
 ()f illegitimacy, infancy, LECT. 15, 
 
 relates * to thofe of the poorer fort, who wan- 
 der about to the danger and difmay of the" 
 king's fubjects ; but it is exprefsly declared* 
 that thofe proviiions {hall not abridge the 
 power of the court of chancery, nor prevent 
 any friend or relation from interfering in the 
 care of the perfon of unfound mind : which * 
 might be done by the common law : and it is 
 a good juftification for confining, binding, and 
 beating the unhappy man, in fuch manner as 
 is proper and requiiite in thofe circumilan- 
 ces. Here it may be noticed, q that tho no 
 crime, no laches^ or neglect, is imputable to 
 a lunatic, yet his property is anfwerable for 
 trefpafTes committed by him, becaufe fuch 
 civil actions tend only to recompenfe the par- 
 ty injured. 
 
 As to the management of perfons in what 
 are called private madhoufes, thefe recep- 
 tacles are required to be licenfed, and other- 
 wife regulated by r acts of parliament. 
 
 2 Atk. 52. 
 
 > i Hawk. 130. Burr. 1363. *Hob. 134. 137. 
 
 r St. 14 G. lit. c. 49, continued by ft, 19 G. III. c. 15, and 
 made perpetual by ft, 26 G. III. c. 91. 
 
 * It
 
 L c T . 1 5 . and nonfane under/landing. 4 1 1 
 
 It has been the praftice, at leaft for a con- 
 fiderable courfe of years, to fuffer the like 
 commiffions to ifTue, and to a<fl upon them in 
 the fame manner, where a perfon's rational 
 underftanding is fo impaired by age, or other 
 means of infirmity, as to render him totally 
 incapable of managing his affairs, tho not ex- 
 actly correfponding to the common defcrip- 
 tion either of a lunatic or idiot. 
 
 In regard to deeds and conveyances, the 
 grants of an infant, and of a perfon of tm- 
 found mind, are faid ' to be parallel both in 
 law and reafon. If f either of thefe aliens 
 his eflate, according to the old form, by feofF- 
 ment, with livery of feifin perfonally execut- 
 ed by the feorFor, the conveyance is voidable 
 only, and not abfolutely void, on account of 
 its imputed folemnity and notoriety. But in 
 a cafe, which I have repeatedly referred to, 
 the court u denied the comparifon between an 
 infant and a perfon of unfound mind to be 
 unherfally juft. There feems to be at lead 
 this difference, that the a<5ts of an infan^ are 
 
 3 Mod. 310. 
 
 1 4 Co. 125. a. Sho. ca. parl. 153. 
 
 Burr. 1807 : fee Ambl. 708. -' i
 
 A 12 Of illegitimacy t infancy > L B c T . 1 5, 
 
 voidable onfy, wherever there is a femblance 
 of benefit to himfelf, partly becaufe it is evi- 
 dence, that he exercifed his difcretion j fome 
 degree whereof muft necefiarily be imputed 
 to him. But this reafoning will not, I ap- 
 prehend, apply to the acts of idiots and luna- 
 tics, who muil be confidered either as com- 
 pletely fuch, or completely competent to re- 
 gulate their affairs. 
 
 By the ft. 15 G. II. c. 30, the marriage of 
 a lunatic, found to be fo by virtue of a com- 
 miffion, or whofe perfon and eflate are by aft 
 of parliament'intrufled to others, is declared 
 to be null and void. 
 
 . 
 Lunatics and idiots, as well as infants, 
 
 may x maintain or defend actions at law, and 
 iiiits inequity: but others muft, of courfe, 
 
 appear and act for them. 
 rr 
 
 Laftly, as to crimes, it was formerly hold- 
 en, from the refpect which the law pays to 
 
 the fafety of the king's perfon, that even a 
 
 - 
 
 . 
 
 * For more particulars on this fubjeft, fee I Inlt. 135. b. 
 4 Co. 124, b. Poph. 141. z Saund. 335. 
 
 b30nuonoic lunatic
 
 L fe c T . 15. and nonfane under/landing. 4 1 3 
 
 lunatic might be punimed as a traitor, tho he 
 could not be convicted of felony ; but the 
 contrary r doctrine hath long prevailed : and 
 tho by the ft. 33 H. VIII. c. 20, a perfon, 
 becoming infane after the fuppofed commiflion 
 of treafon, might be tried ; or, lofing his ra- 
 tional faculties after attainder, might be exe- 
 ecuted, this z tyrannical law is conlidered as 
 obfolete, or virtually repealed. 
 
 Thefe are the principal or more general 
 diftinctions which render perfons incapable of 
 the full powers or privileges of other fubjects. 
 The criminal code indeed contains numerous 
 difabilities and difqualifications, fome of a 
 more extenfive, and fome of a more confined 
 efficacy. Thus, perfons attainted of a capital 
 offence are faid to be dead in law, they are 
 incapable of any property, and are fcarce * 
 ptherwife the objects of regard, in our civil 
 , except for the infliction of the 
 
 r i Hawk. 2. 3 Inft. 6. 
 
 * See Foft. 6 1 &c. - An attainted perfon is chargeable with 
 a civil fait; and if beat or maimed may, after a pardon, main- 
 tain an aftion or appeal. He is fo far capable of being either 
 plaintiff* or defendant. 
 
 pronounced
 
 414 -Of legitimacy, infancy, L E c T . 1 5 . 
 
 pronounced judgment. The confequences 
 of attainder cannot be wholly removed ex- 
 cept by act of parliament. But b if a perfon 
 attainted obtain the royal pardon, his iflue 
 born after, tho not thofe born before the 
 grant thereof, may inherit to him : yet this 
 {hall not intitle a younger fon, while an elder 
 is living. As to the difabiiities arifing from 
 outlawry or excommunication, I (hall only al- 
 lude to them, becaufe they rarely occur, arc 
 in general eafily done away, and, relating 
 chiefly to the bringing of actions, may be 
 readily met with in many books, under the 
 title of " abatement." Befides which, by 
 fundry acts of parliament, many incapacities 
 are confequent upon various tranfgreffions 
 and omiffions, but are hardly proper for a 
 place in this courfe of lectures, becaufe the 
 recital would be chiefly a tranfcript of that 
 which obvioufly occurs by referring to the 
 indexes of the ftatutes at large, and the na- 
 ture of it would afford little opportunity of 
 perfpicuous method or ufeful illuftration. 
 
 Having therefore confidered perfons in re- 
 gard to public- OK political fuperiority and fub- 
 
 I 
 
 "Ilnft,8. a .
 
 L E c T . 15. and nonfane under/landing. 4 1 
 
 jeftion, and having in this and the laft dif- 
 courfe (as among the body of the people) 
 treated of the more general diftindions, rela- 
 tive to this title " de Jlatu hominum" I fhall 
 proceed to fpeak of perfons in their domeftic 
 
 relations, and firft in the relation of hufband 
 ' 
 
 and wife, _ 
 
 
 
 > -{ 
 
 iii oJ sbuf 
 
 '" \ni 
 - irb 
 
 
 
 ii! 
 
 r{vr 
 bnr 
 
 
 
 >j? ^1 
 
 LEC.
 
 4 i 6 Of tbe hiws ref petting the L E c T . 1 6 . 
 
 LECTURE XVI. 
 
 Qf pcrfons, as confidered by the /aw, in regard 
 to (be domcftic relation of hujband and wife. 
 
 TH E domestic relations, in which per- 
 fons iland to each other, give fre- 
 quent occafion for the influence and opera- 
 tion of municipal law. Of thefe relations, I 
 fhall firft, in the prefent difcourfe, treat of 
 that of hufband and wife ; and fhall then, in 
 the next lecture, more concifely mention 
 thofe of parent and child, guardian and ward, 
 and matter and fervant. 
 
 I. Laws, which impofe new reftraints 
 againft contracting marriage, appear, from 
 very obvious reafons, to be both impolitic, 
 and difficult to be reconciled with morality. 
 The general end of them is pretended to be 
 the prevention of unfortunate alliances. But 
 
 if
 
 1 E c T . 1 6 illation of bujband and wife. 4 1 7 
 
 if this confideration were fufficient to out- 
 weigh the oppofite objections, ilill fuch re- 
 flraints feldom anfwer the propofed defign. 
 They may occaiion fewer marriages, but it 
 may well be doubted, whether the number 
 of unhappy marriages is decreafed. On the 
 other hand, it is difficult to juftify the Ro- 
 man conftitutions, which authoritatively 
 compelled citizens to engage in wedlock, be- 
 caufe it was for the intereft and benefit of fo- 
 ciety. A law b to the fame effect was in 
 force among the Hebrews : and fome of their 
 doctors criminate in very feveje terms fuch a 
 neglect the matrimonial union, defeating 
 thereby the great end of it, the multiplying of 
 mankind. 
 
 There are, however; fome reftfaints agalnfl 
 entering into the nuptial ftate, which are im- 
 pofed by nature and reafori, and which are 
 accordingly recognifed by our Englifh laws. 
 
 Of this kind are imbecillity of body, and 
 idiocy or infanity of mind, if they fubfifted 
 before and at the marriage. For fuch perfons 
 
 * Tayl. civ. law> t. marriage. 
 
 * f uf. I. of n. & n. b. vi. c. I. 6.
 
 4 1 "8 Of the laws ref petting the L E c T . 1 6 . 
 
 as laft defcribed are incapable of forming any 
 valid contract, and therefore c precluded from 
 this folemn one of marriage. 
 
 A like natural and reafonable incapacity af- 
 fe&s perfons within certain degrees of kindred, 
 fpecified with that intent in the levitical law, or 
 d implied by parity of reafon. But if the ecclefi- 
 aftical courts attempt to impeach a marriage 
 not retrained, exprefsly or impliedly, by the 
 levitical law, they are fubjeft to be prohibit- 
 ed by the tribunals of Weftminfter hall ; and 
 c there the mofaical precepts will be confi- 
 dered, without regarding all the rules and va- 
 rious glofles of the canonifts and civilians, and 
 fuch nuptials may be deemed valid, as they 
 perhaps would determine to be void. For 
 to extend the objection of confanguinity far- 
 
 e The ft. 15 G.IL c. 30^ indeed extends only to nullify the mar- 
 riages of lunatics found fuch by inquifition, or whofe perfon and 
 eftate is committed to truftees : which may be thought to im- 
 ply the validity of marriage in other cafes of infanity : and fo 
 is one authority, (l R. A. 357.) as to idiots a nativitate : but 
 this doclrine is efientially unreafonable, and overthrown by a 
 modern fefolution. (i Black, comm. 439.) The ftatute is 
 there accounted for partly from the difficulty of proving the 
 exaft ftate of the party's mind at the actual celebration of the 
 nuptials. The prefumption, however, would probably be, as to 
 perfons alleged to be lunatics, (but not found fo by a previous 
 inquifition, nor within the other words of the ftatate) that the 
 contract and celebration were had in lucid intervals. 
 
 d Vaugh. 240. - ' r * Vau. 206. 245. 2 Ven. 9. 
 
 7 ther
 
 t E c T . 1 6 . relation of hujland and wife. 419 
 
 ther than is prefcribed by the divine code, is 
 oppofite to the ft. 32 H. VIII. c. 38; and 
 this confideration confirms the authority of the 
 temporal courts, as to granting a prohibition. 
 Such power indeed has been very fparingly 
 exerted. In one f cafe, it feems thought, 
 that the fpiritual judge was the proper in- 
 terpreter in this refpecl: of the facred writings. 
 But in many g inftances the temporal court 
 has entertained the queftlon of the legality of 
 a marriage, as compared with tfre levitical 
 degrees, without fcruple or referve. How- 
 ever, it does not appear, that a prohibition 
 will be granted, except where the ecclefiaf- 
 tical tribunal is proceeding to invalidate a 
 marriage on the ground of proximity of kin- 
 dred, extending that obje&ion beyond its juft 
 limits, not where exceptions are taken on any 
 other canonical impediment. For, h tho the 
 temporal courts are the proper interpreters 
 of a ftatute, yet, where that refers generally 
 to the law divine, and not fpecincally to the 
 levitical degrees, it ordinarily belongs, by our 
 
 f T. Raym. 464. Skin. 37. 
 
 * 5 Mod. 168. Ld. Raym. 68. i Mod. 25. a Lev. 254. 
 Str. 53 : and there may be a prohibition after fentence. (Comb, 
 
 Vaugh. 207. 211. 213. 
 
 E e 2
 
 420 Of the laws refpetting the L E c T . 1 6 
 
 policy, to ecclefiaftical cognizance and con*- 
 flrudtion. 
 
 This levitical law, as is before intimated, 
 is underftood to comprehend, not only the 
 degrees of confanguinity- therein exprefsly 
 mentioned, but other cafes within parity of 
 reafon; which rule of judging was adopted, 
 originally, by the fpiritual courts; and on 
 which the received law of England in this 
 refpecl: now depends. Thus marriage with 
 an aunt is interdicted by the levitical law t 
 1 marriage with a niece is, with us, confidered 
 as a parallel cafe, and interdicted alfo by parity 
 of reafon. But the Jewifh k doctors thought, 
 they faw great difference between the cafe of 
 an aunt and niece ; and ' marriage with the 
 former was prohibited, and with the latter 
 allowed, by the Roman law, till the time of 
 Conftantine. The reafon aligned for the 
 difference is, that the wife ought to be in 
 fubjection to her hufband, but that an aunt 
 
 * Gibf. cod. t. xxii. c. 1. 
 
 k Seld. de jur. nat. & gent, juxta dlfc. vet. Ebr. lib. v. 6. 
 10. Puf. 1. of n. & n. b. vi. c. i. 35. 
 
 1 Halif. anal. Rom. civ. law, b. i. c. 6. Tacit. Annal. 1. xiL 
 Vaugh. 246. 2 Lev. 255,
 
 L E C T . 1 6 . relation of hujband and ivife. 421 
 
 would be fupcrior to him in point of paren- 
 tage. The confanguinity of firft coufins is 
 the neareft degree of kindred, within which 
 marriages are lawful by the Englim law. 
 Such marriages were alternately forbidden 
 and allowed by the emperors before " Jufti- 
 nian, from whom they had their final and un- 
 repealed ratification. ; * 
 
 It appears, that marriages may be unlawful 
 between illegitimate kindred; as, n where a 
 man efpoufed the baftard daughter of his fif- 
 ter. A fuit was commenced in the fpiritual 
 court to vacate this marriage, and a prohibi- 
 tion was moved for in the king's bench to flay 
 the proceedings of the ecclefiaftical judge. 
 It is not recorded, what became of this fingu- 
 lar litigation, no judgment having been pro- 
 nounced. It was indeed. urged, that a baftard 
 is efteemed in law nullhis jilius, and ib can 
 have no confanguinity. But the court of 
 
 m Halif. anal. Rom. c5v. Iaw,b. i.e. 6. 
 
 * Ld. Rayra. 68. 5 Mod. 168. 
 
 Thismuft be underftood as to civil purpofes, confined cl.ief- 
 ly to inheritances ; (i Durn. & Eaft loi.) for there is a rela- 
 tion a* to moral purpofes; therefore he cannot marry his own 
 mother, or baftard filler. (5 Sal. 66, 67.) 
 
 E e kin's
 
 422 Of the laws reft eft ing the LECT. 16. 
 
 king's bench feemed, with reafon, to incline 
 againft the validity of fuch nuptials. It was 
 faid, that the Jews made no difference, as to 
 marriage, between baftards and others : which 
 is certainly true of the higher degrees of kin- 
 dred : for that p people juftly inforced the 
 prohibition again ft a brother's efpoufing his 
 illegitimate as well as legitimate 
 
 If q a conjugal union be inceftuous, and 
 within the prohibited degrees, yet it is effec- 
 tual for the purpofe of drawing after it the ci- 
 vil confequences of marriage, until the time 
 of a divorce. In like manner, it is obferved 
 by fir Edward r Coke, that if a deacon or fe- 
 cular prieir, before the reformation, had taken 
 wife, the marriage might indeed be declared 
 void by a fentence of divorce -, but if either 
 party died before fuch fentence, the iffue 
 were legitimate, and the validity of the ef- 
 poufals could not then be questioned. To 
 the irne effect it has been s determined, that 
 a marriage de facto, altho the lawfulness of it 
 Plight be difputed, will enable a hufband to. 
 
 F Seld. & Puf. ultfupra, 
 
 Yearb. 18 II. VI. 34. b. 39 E. III. 3 i. b. 
 
 1 2 Inil. 687. s 2 Sal. 437. i Leon. 53. 
 
 maintaia
 
 L E c T . 1 6 . relation of hufband and wife. 423 
 
 maintain an action on a bond acknowledged to 
 his wife. 
 
 A diftinct ground for declaring a marriage 
 void is, that it was contracted in confequence 
 of the ufe of force, menaces, or durefs. But c 
 fuch are marriages dc faffo : and before they 
 can be avoided, as not being de jure, it ought, 
 I apprehend, maniftflly to appear, (where 
 there was no forcible abduction) that they 
 were purely the effect; of compulfion, and 
 that there was no comparative choice, un- 
 biailed by fears of violence, (for flrong temp- 
 tations of intereit, have fometimes the imput- 
 ed idea of force) between the confequences 
 refpectively of compliance cr refufal, but in 
 reality an abfolute unwillingnefs, and at moft 
 an apparent confent only, to enter into the 
 Iblemn engagement; according to the rea- 
 fbn of that rule in the Roman civil 
 Jaw, u " Ji patre cogente ducit uxorem, quam 
 non .duccrct, Ji fui tirbitrii ejfet, contraxit 
 
 * 3 Cro. 493.*r It is mentioned as acloubt, (i R. A. 340.) 
 whether fucli marriages are not merely null : but furely not be r 
 fare fentence. The offence of taking away againil their \vills, 
 and marrying or defiling women having eftates real or perfonal, 
 pr being helrefies, is Capital. (St. 39 El. c. 9.) 
 
 u J}ig. 1. xxiii. t. 3. 1. 22. 
 
 E e 4 tamen
 
 4 2 4 Of the laws rejpetfmg the L E c T . 1 6 . 
 
 tamen mztrimonium, quod inter invitos non 
 contrabitur, maluiJJ'e hoc videtur. Here .then 
 we are reminded of a late remarkable * cafe, 
 where a perfon, who was a legatee, and ap- 
 pointed as a truftee or quafi-guardian for an 
 illegitimate daughter, by her putative father's 
 will, carried the young lady into foreign parts, 
 and there efpoufed her at a tender age. Af- 
 ter many learned arguments in different tribu- 
 nals, this marriage was finally determined void 
 by the fupreme ecclefiaftical court of appeal. 
 
 An y inchoate or imperfect marriage may 
 be contracted by infants of tender years ; and 
 when the hufband attains the age of fourteen, 
 or the wife that of twelve, either party may 
 difagrce to fuch union. But 7 ' a disagreement 
 thereto before thcfe refpective periods is of 
 no effect. Laftly, tho a precontract merely, 
 feems, according to modern practice and opi- 
 nions, no longer any impediment to contract- 
 ing nuptials with another perfon, yet, where 
 there has formerly been an actual marriage, 
 and either party has a hufband or wife re- 
 fpsctively living, fecond efppufals b are abfo- 
 
 * Hnrford r. Morris, 1783. z i Jnft. 33. a. 79. b. 
 
 *iR. A. 340. a St. 32 H. VIII. c. 38. b Sal. 121. 
 
 lutely
 
 L E c T . 1 6 . relation of hujland and ivife . 425 
 
 lutely null and void to all intents and pur- 
 pofes, before and independently pf any fen- 
 tence of divorce. Indeed bigamy, or, as it is 
 more properly termed for the fake of diftinc- 
 tion, polygamy, (for blgami c were thofe, who 
 married two wives fucceflively, or were once 
 married to a widow) ispunimable by the ft. i 
 J. I. c. n, as felony, tho not with death. But 
 a fecond marriage may be void, and yet the 
 parties not incur the crime of felony, firfl, 
 where one of them has refided abroad, or 
 even within the realm abfent from and not 
 Jknown by the other to be living, for feven 
 years - y and this is by the words of the ftatutej 
 Secondly, if d a marriage be declared void by 
 an ecclefiaftical fentence, and there is an ap- 
 peal to a higher fpiritual tribunal, which, by 
 fufpending that fentence^ is a fuppofed conti- 
 
 c There is a learned and curious account, ( i Inft. 80. b. 8 1 . a, 
 1 3th ed. n. i.) how bigamifts, convi&ed of a clergy able of- 
 fence, came to be excluded from the benefit of clergy, which 
 is referred to the papal interpretation of fome texts of fcripture, 
 and in particular to a conftitution of the council of Lyons. (See 
 alfo Staundf. 134, 5.) It may be added, as a further mark, 
 perhaps, of the odioufnefs of bigamy, among the Very early 
 inhabitants of this ifland, that, by the cuftom of Gavelkind, 
 which was very extenfivc, and is fuppofed to be a relique of the 
 antient Britons, (i Inft. 175. b.) a fecond Biarriage incurred a 
 forfsiture of dower, (i Inft. 33. b.) 
 
 1* Gibf. cod, t. xxii. c. 4. 
 
 ouation
 
 426 Of the laws ref petting the L E c T . 1 6. 
 
 nuation of the marriage! yet one of the parties 
 marrying again does not incur the penalties of 
 this law, altho fuch fecond marriage is indeed 
 unlawful. 
 
 The restraints hitherto mentioned have 
 their foundation in nature and reafon. I 
 fhall not prefume to dogmatife on thofe con- 
 tained in the e marriage at, 26 G. II. c. 33, 
 That Statute is chiefly calculated to prevent 
 the clandestine marriages of minors without 
 the corifent of their parents or guardians; 
 which is prohibited, where either party is 
 under the age of twenty-one years, by the 
 hundredth canon of thofe made in 1603; 
 and which, by the f reformatio legum> rendered 
 the nuptials void. With this view then the 
 Statute enacts 5 , a-mong other provifions, that 
 the ceremony mail be folemnifed in no other 
 place than a public church, or chapel, where 
 begins have been ufiially fub/tficd h , except by 
 
 fpecial 
 
 5 See i Durn. & Eaft 99, ico. 
 
 f Gibf. cod. t. xxii. c. 3. 8 . 8. 
 
 u An extremely hard cafe arofe on this claufe, the_.parties 
 
 being married in a new chapel, ereded fmce the at. The mar- 
 
 o was holden invalid. A ftatute, however, was immediately 
 
 v.i:Ved for confirming marriages In fuch new churches and cha-
 
 L E c T . 1 6 . relation of hujband and ivrfe. 427 
 
 fpecial difpenfation from the archbifhop of 
 Canterbury. Marriages celebrated in dif- 
 obedience to thefe provifions, are declared 
 null and void to all intents and purpofes 
 whatfoever. It is indeed exprefsly provided, 
 that it mall not be neceffary to prove, that 
 the ufual place of abode of one of the parties 
 was in the .parifh or chapelry where the 
 marriage was folemnifed, whether by banns; 
 or licence, nor fhall any evidence be admitted 
 to contradict this fact. Another ' paragraph 
 in this law may pombly occafion very pi-, 
 tiable coniequences, namely, that by which 
 all marriages folemnifed by- licence, where; 
 either party, not being a widower or widow, is 
 a minor, and without the confent of parents- or 
 guardians, are alfo made null and void k ; and 
 this 1 has been adjudged .to comprehend n^r-. 
 riages of illegitimate peiibns under the age ..of: 
 twenty-one years. 
 
 Such are the reftriftions and vitiating cir- 
 cumflances ordained by general Iaiv 9 which, 
 
 pels, with a retrofpeft, but including the time to ccme only ujx* 
 to the iltcf Auguft 1781. (St. 21 G. 111. c. 53. Doug!. 659 
 r-6i. n. i.) 
 
 i $ 11. ' k Eurr. fcttl. ca. 486. 
 
 ' i Durn. & Eafl 56 Sec.
 
 42 8 Of the laws refpsSilng the . L E c T . 1 6 . 
 
 being antecedent to a marriage, fruftrate its 
 validity. 
 
 But it may not be improper to embrace 
 this opportunity of briefly mentioning thofe 
 pofitive and arbitrary reftraints which fome- 
 times are found in deeds and devifes, and do 
 not indeed nullify a marriage contracted con-r 
 trary thereto, as to marry with the confent of 
 guardians, or fome perfon of the fame name 
 with the teftator. If a teftator, in cafe of 
 noncompliance with his dictates, devifes the. 
 intended legacy over to another object of his 
 bounty, then m it may be fued for in a court 
 of equity, as forfeited by the firfl legatee. 
 Yet, " even under thefe circumftances, there 
 has been feen a reluctance and unwillingnefs 
 in judges to exact the forfeiture, confidering 
 the reftraint as in terrorem, or virtually com^ 
 plied with, or difpenfed with by the impofli-. 
 
 *> Ca. temp. Tal. 212. 2 Wms. 52.8. 531. 
 
 T: ^ Wms. 6z5. 3 Wms. 65. 238. 2 Atk. 16 &c. 184, 5, 
 261 &c. 3 Atk. 364 &c. : and where alfo the reftraint was o 
 marrying without confent or approbation, a fubfequent appro- 
 bation favcd the bequeft : (Ambl. 256 &c.) and where a mo- 
 ther capricioufly diflsnted from a marriage, (he had before en- 
 couraged, this was holden no forfeiture : (Ambl, 263, 4 &c.) 
 and fee Ambl. 662, 3, where marrying with confent was con- 
 :a the age of twenty-one. 
 
 bility
 
 L E c T . 1 6. relation of hujband and wife. 429 
 
 bility of compliance. But where the marriage 
 with confent of truftees is clearly a condition 
 precedent for the veiling of a fecond or larger 
 portion to a legatee otherwife provided for by 
 the fame will, fuch condition muft be per* 
 formed. And a diftindlion appears in the 
 books, depending either on the form of de- 
 vifmg, or the fubject of the devife, or both, 
 where in each inflance it is fought to reftrain 
 a fecond marriage. A devife p of land during 
 widowhood is not confidered as a condition 
 incurring a forfeiture, but as a limitation of 
 real eftate, and the q next taker may compel 
 
 i Wms. 284. Com.-rep. 726 &c. 2 Bro. 431 489. 
 
 P 2 Atk. 393. 3 Atk. 260. 2 Vez. 265. The cafe in 
 
 2 Vez. 269, 270, appears by the regifter's book to have been a 
 devife to the teftator's wife of the refidue of real and perfonal 
 eftate, with a power of difpofmg among the children ; and if* 
 me married again, or died without difpofmg, then a houfe in 
 Burlington ftreet to A. her executors &c. and a houfe in Noel 
 ftre'et to B. her executors &c. So that it does not appear whe- 
 ther there was any freehold property. The bill charged a ft- 
 cond, clandeftine marriage. No demurrer was put in to the dif- 
 covery, but an iffue was direded to try, whether fuch devifee 
 was married again at a particular time, with liberty to indorfe in 
 the poftea on the record the real date of fuch fa3, if it had 
 really taken place. 
 
 * I apprehend, a devife during widowhood would be a Valid 
 reflraint againft a fecond marriage, without a devife over, the 
 eftate- being on fuch event defcendible to the heir at law. But 
 many doubts might arife as to general reilraints againlt marriage, 
 ky devifes to bachelors and fpiniiers. Idea qu<rre. 
 
 fuch
 
 430 Of the laws rtfpe cling the LECT. 164 
 
 fuch prior devifee todifcover a fecond marriagCi 
 But moil of the ' authorities are contrary, as 
 tQ.perfonal property* fo forfeitable, and which 
 would otherwife be abfolutely in the legatee : 
 partly perhaps, as I have juft intimated, from, 
 difcouraging conditional limitations of perfonal 
 effects. 
 
 When a marriage is duly contracted and 
 folemnifed between perfons of the refpective 
 ages above fpecified, it cannot, properly 
 fpeaking, be diflblved by any court or procefs, 
 known to our laws, except the authority of 
 parliament. For a s divorce a menfa et toro 
 does not vacate the conjugal union; and nei- 
 ther party is thereby at liberty to marry 
 again : and as to a divorce a vfftciflo matfimo- 
 nii, that is not properly a difTolution of a real 
 marriage, but a judicial declaration, that no 
 juft<z nuptite, no real or lawful marriage, ever 
 fubfifted. 
 
 The ' reafon why the fpiritual court will 
 not be allowed to pronounce fentence of di- 
 
 T z Chanc. rep. 36. (3d ed.) 2 Atk. 392, 3. 3 Atk, 260. 
 Mitf. 160; (zded.) but fee 2 Vez. 265. 
 Mo. 683. i Inft. 235. a. iR. A. 341. 
 l i R. A. 360. Sal. 121. 
 
 vorce
 
 L E c T . 1 6 . relation of bujband and wrfi. 431 
 
 vorce after the death of either of the parties, 
 is, that it proceeds pro falute anima, and 
 fuch pofthumous adjudication comes too late 
 to have any other effect than baftardifing the 
 iiTue. Perhaps the reafonablenefs or confift- 
 cncy of this doctrine is not quite fo manifefl 
 as its humanity. For the ecclefiaftical 
 judge has been allowed to proceed to pu- 
 nifh the furvivor for the paft inceftuous co- 
 habitation. 
 
 That * no lentence of divorce fhall be pro- 
 nounced on a party's confeflion feems a falu- 
 tary provifion of the canon law : and this was 
 a caution particularly requifite in cafes of 
 adultery, which 7 antiently was thought a 
 fufficient caufe for declaring the marriage 
 null, contrary to the diftinction which has 
 iince prevailed. For now the ecclefiaftical 
 courts, which z are the ordinary tribunal in 
 matrimonial caufes, can divorce a menja et 
 toro only, for any caufe whatfoever fiibfequent 
 to ,the marriage ; and where they decree a di- 
 vorce a vincuh matrimonii, it muft be for a 
 reafon which preceded and rendered the 'Con- 
 
 2 Sal. 548. ' * Butn>eccl. law, t. jnamarge, ^ xi. 
 
 . / 3 Sal. 138. * St. 25 H. VIII. c. 22. 5. 
 
 trad
 
 432 Of the laws refpefting the LECT. 16, 
 
 trad invalid from the beginning. But the 
 legislature, uncircumfcribed in its powers, has 
 frequently, for a caufe fubfequent to the ef- 
 poufals, namely adultery, wholly dhTolved the 
 conjugal engagement. 
 
 Altho, as hath been before obferved, a di- 
 redt fentence of divorce cannot be pronoun- 
 ced after the death of either of the parties, 
 yet the lawfulnefs of a marriage may be in*, 
 quired of for a collateral purpofe, affecting the 
 furvivor, as a widow claiming dower. This 
 matter, according to Dr. * Godolphin, was 
 at firft tried in the temporal courts, and was 
 afterwards, by the conceffion of princes, fub- 
 mitted to the fpiritual jurifdiction. A b writ 
 is to be directed to the diocefan bifhop out of 
 one of the fuperior courts, who, after inquiry 
 had, certifies, that the parties were, or were 
 not, accoupled in lawful matrimony. But 
 this is feldom practifed, and never except 
 when the litigants are at iflue upon the point, 
 that is, when it is directly affirmed by the 
 one, and denied by the other, upon the re- 
 cord. Collaterally on many oecafions, quef- 
 
 u Repcrt. can. 489, (3d. ed.) b i Inft, 134, sr< 
 
 tion8
 
 IBCT. 1 6. relation of hujb and and wife. 433 
 
 tions of the fad: and validity of marriages may 
 be agitated in the temporal courts. In ge- 
 neral, common e reputation, and cohabitation 
 as man and wife, or the acknowledgment of 
 the parties, may be admitted as evidence. An 
 action for adultery d is the only civil cafe in 
 which it is neceflary to mew flricter confir- 
 mation of an actual marriage, as by a copy of 
 the regifler, accompanied with proof of the 
 identity of the perfons. A e jury alfo are the 
 proper judges of the fact of a marriage denied 
 by an anlwer in chancery, and always lean to 
 fupport the proof of it, in favor of a juft 
 creditor, fuing for a debt contracted during 
 cohabitation. The fact of a marriage may 
 alfo be eftablifhed r by the fentence of a fo- 
 reign court, having competent jurifdiction, 
 in a fuit properly inftituted there j and this, 
 
 Comb. 202. Cowp. 232, 3 
 
 d Dougl. 171175* But among fome diflenters, mar- 
 riages are not regiftered ; in which cafe other proof, (as by wit- 
 nefles prcfent) muft be admitted ; and as to proof of the iden- 
 tity, whatever is fofficient to fatisfy a jury, is good evidence, 
 tho the minifter and fubfcribing witnefles are not examined. 
 (Ibid.) Subfcribing witnefles are only neceflary, where an ori- 
 ginal inftrument itfelf muft be produced. (Ibid.) There is no 
 doubt, but that hufband and wife may prove their own marriage 
 on a queftiou of fettlement of paupers. (2 Durn. & E.-.it 
 267.) 
 
 4 Vez. 270. f i Vez. 159. 
 
 F f generally
 
 434 Of *^ e I aws refpetting the L E c T . 1 6 . 
 
 generally fpeaking, is conclufive by the law 
 of nations ; for otherwife the rights of man- 
 kind would be very precarious and uncertain. 
 It is for the moft part incumbent on thofe 
 who would impeach a reputed marriage, to 
 fhew wherein its irregularity confifls ; as for 
 example, by proving that it was g folemnifed 
 by a mere layman. The abfolute nullity of 
 a marriage may be made appear and decided 
 upon, in the temporal courts, at leaft two 
 ways, namely, by proving that it was con- 
 tracted while one of the parties had a former 
 hufband or wife living, or that it had fuch 
 defect as hath been obferved to render it 
 wholly void by the before mentioned ftatute 
 of George the fecond. 
 
 s Burr. fet. ca. 232. I Sal. 119, no. The marriage 
 
 aft ( i.) injoins a general conformity to the rubric concern- 
 ing the publication of banns, and the folemnifation of matrimo- 
 ny, but does not fpecify any confequence of departing from the 
 rites of the church of England. The aft does not extend to 
 quakers and Jews, where botli parties are of thofe perfuafiong 
 refpedlively. ( 18.) Marriages celebrated by Romilh prieils 
 are valid. (Burn. eccl. law, t. marriage, 5.) And as to 
 marriages in countries and places where no regular clergyman 
 can be found, it feems, the folemn confent of the parties muft 
 avail, marriage being a contract recognifed by the natural and 
 "divine law, and civil inftitutions having effect only, where they 
 are cftablifhed. 
 
 I now
 
 tECT. i6. relation of bujband and wife. 435 
 
 I now proceed to confider the legal confe- 
 quences of the matrimonial union. 
 
 A hufband and wife are fo far confidered as 
 one perfon, that by the marriage, where no 
 pofitive fettlement is made or agreed upon, 
 he becomes feifed of her landed freeholds and 
 inheritances, tho fuch feifin determines by her 
 death, unlefs where he is intitled to be tenant 
 by the curtefy. But during the coverture, if 
 it is an eftate in fee> it miift be h pleaded* 
 that the hufband and wife, in right of the 
 wife, were feifed in fee, not of freehold mere- 
 ly. A ' widow, however, in contemplation 
 of a fecond marriage, may fettle her eftate on 
 truftees, to her own ufe ; and fuch fettle- 
 ment, tho concealed from the fecond hufband, 
 is not, of necefTity or in its nature, void, as a 
 fraud on the marital rights. 
 
 11 Dougl. 329, 330. 
 
 1 2 Bro. 345 351. By the reafoning in this adjudica- 
 tion, it may be inferred, that a like fettlement of her eftate by 
 a fpinfter, before marriage> may poffibly be effe&ual ; but, in 
 the inftance referred to, very extraordinary circumftances con- 
 curred ; and furely fuch clandeftine deeds deferre difcourage- 
 ment, ubi alind a&um, aliud femulatum, preemptively at leaft. 
 It was determined on a very nice ground, for it feems admittecj, 
 that if it be exprefaly holden out that there is no fettlement, it is 
 a fraud. 
 
 F f 2 Another
 
 43 6 Of the laws r effecting the LECT. 16* 
 
 Another refult of this union is^that at k the 
 common law neither of them can grant or 
 limit to the other any eftate or interefl in 
 pofTeflion, reversion, or remainder, nor enter 
 into any covenant or contract with the other. 
 But ' a hufband may covenant with truftees, 
 to ftand feifed, or make a feoffment, or fur- 
 render m a copyhold, to and for his wife's ufe 
 and benefit. He n may alfo give lands to her 
 by devife. But a devife of lands by a feme 
 covert, (which is the legal phrafe for a mar- 
 ried woman) is merely void, confidered as a 
 will, tho it may be valid as an appointment 
 under a power for that purpofe, as will be 
 mentioned hereafter. So alfo is her deed; 
 and p in an action on a bond acknowledged 
 by a wife, the defendant may plead " non eft 
 fattum" that it is not her deed, and give the 
 coverture in evidence j for the inftrument is 
 merely void. On the other hand, a q bond to 
 
 k For fuch grant may. be good by fpecial cuftom. (Fitzh. 
 t. prefcription, 61. Bro. t. cuftom, 56.) i Inft. 3. a. 112. a.- 
 i Vern. 385. 4 Co. 29. i Wms. 44.1. i Atk. 72. 2 Vcz. 
 669. 
 
 1 i Inft. 112. a. m 4 Co. 29. a. 
 
 " Lit. 168. St. 34 & 35 H. VIII. c. 5. 14. 
 
 J> i Ld. Raym. 313. Burr. 1805. 
 
 i See Bro. t. obligation, pi. 36. & t. teftament 13 volant, 
 pi. 9. 
 
 -a feme
 
 LECT. 1 6. relation of hujband and wife. 437 
 
 a feme covert fmgly is good. But r if the 
 hufband and wife jointly levy a fine or fuffer 
 a recovery, thefe ats will effectually bind the 
 eftate. And if * fhe levies a fine alone of her 
 eftate, it will be a bar, unlefs the hufband 
 avoids it during the coverture. But no adt 
 of the hufband alone fhall alien the wife's 
 inheritance> being protected by a ' ftatute of 
 Henry the eighth ; which fame law u pre- 
 fcribes alfo what leaies made by them jointly, 
 or by the hufband alone, fhall be valid and 
 conclufive. 
 
 In refpect to mere perfonal property, all the 
 wife's eftate of this kind, poffefTed by her be- 
 fore marriage, or coming to her afterwards, 
 and not limited to her feparate ufe, regularly 
 and of courfe belongs to the hufband, in fo 
 much that if x fhe indorfes a promifory note 
 payable to her, it is of no avail. But perfonr- 
 al property may be, and often is, fettled to 
 her feparate ufe. And if it comes to her after 
 marriage, as it feldom can be obtained by the 
 hufband without the aid of a court of equity. 
 
 ' Flo. 514. i R. A. 346. 
 
 32*1. VIII. c.28. $6. i, 2, 3. 7. Str.5i6. 
 
 F f 3 thai
 
 43 8 Q/" /& tetf refpeftlng the L E c T . 1 6 . 
 
 that court will require her confent. But her 
 J confent may be given and afted upon, where 
 {he is not perfonally amenable, being refident 
 abroad. 
 
 If a wife bo left executrix, with a power 
 of felling the real eftate of her hufband the 
 teftator, me may, according to fir Edward 
 z Coke, fell it to a fecond hufband. But if 
 the creditors, or others interefted in the ef- 
 fects of the prior hufband, were diflatisfied 
 with the conditions of fuch fale, it would 
 moft probably be fet afide in a court of equi- 
 ty on the forcible prefumption of fraud and an 
 inadequate price, 
 
 A wife, however, may bequeath the whole 
 or part of her perfonal property in feveral in- 
 ftances : all which are properly exceptions 
 out of the general rule to the contrary. Firfl, 
 this a may virtually be accomplished, if the 
 hufband covenants to that effect before mar- 
 riage, or afterwards enters into a bond, con- 
 
 T 2 Bro. 663, 4, 
 
 * i Ipft. 112. a.; fee n. 6. ibid. (i3thed.) 
 
 I Cro. 27. 3 Cro. 219. 376. 597, Bro. t. teftcunenl & 
 <volunt, pi. 9. 
 
 ditioned
 
 L E c T . 1 6 . relation of bufband and wife. 439 
 
 ditioned to grant his wife that permiflion. 
 For altho it is generally b faid, that an agree- 
 ment made before marriage, which is to have 
 execution during the coverture, is extinguifh- 
 ed, yet the performance of marriage articles is 
 conftantly decreed in courts of equity after 
 the marriage has taken effect, which is no 
 waiver of them, whether they were entered 
 into with or without the intervention of any 
 third party or truftee ; and if no fettlement 
 purfuant thereto be made in the hufband's 
 life time, the wjfe may have the benefit of 
 them after his deceafe. So alfo a wife d may 
 difpofe by will of the favings me has made 
 out of a feparate maintenance. She has the 
 like power over e perfonal property, or the 
 favings out of a real eftate, devifed or be- 
 queathed to her feparate ufe, even f without 
 
 k I Chanc. ca. 118. c 2 Vent. 343. 
 
 d i Chanc. ca. 1 1 8. e 2 Vez. 191. 
 
 f This was formerly doubted ; (i Wins. 125, 6.) but has 
 been long fettled. (2 Wms. 316 &c.) As to words fufficient 
 to give a feparate eftate to the wife, the mailer of the rolls held, 
 in Lee againft Priaulx, (i Dec. 1791.) that directing her re- 
 ceipt to be a fufficient difcharge, (tho the like expreffions were 
 annexed to a legacy bequeathed to a widow) might have that 
 effedt. But in the fame cafe his honor declared, that Darley 
 againft Darley (3 Atk, 399,400.) according to which, an eftate 
 devifed to a hufband, for the livelihood of the wife, inures to 
 her feparate ufe, was much mifreported ; as he proved from 
 |he regifter's book, 
 
 F f 4 tke
 
 44 Of the laws refpetfing the LECT. 16. 
 
 the intervention of truftees. For ihe may, 
 out of fuch funds, lend moneys to her hufband, 
 and be admitted as a creditor, intitled to a dif- 
 tributive mare of his effects, if he prove in- 
 folvent, under a commifiion of bankruptcy. 
 And if a 5 wife, having fuch a feparate eftate, 
 borrows money, and gives an inftrument for 
 the lender's fecurity, purporting to be her 
 bond, this will give a foundation to demand 
 the loan out of fuch eftate, me being as to 
 that confidered as a feme fole. So if h me gives 
 a bond jointly with her hufband, it will bind 
 her feparate property. 
 
 It has alfo been * determined, that where a 
 bond (being one of thofe entered into by the 
 Eaft India company) was bequeathed to a 
 married woman to her fole and feparate ufe, 
 this vefted the whole and abfolute property 
 in her, in the contemplation of a court of 
 equity, as much as if there had been the in- 
 tervention of truftees j accordingly, me having 
 lived feparate from her hufband, and difpofed 
 of it for lodging and necefTaries, fuch difpofi- 
 
 * 2 Vcz. 193, fc i Bro, j6 &c. Bonb. 187, 8. 
 
 tion
 
 L E c T . 1 6. relation ofhujband and 'wife. 44 1 
 
 tion was holden valid againft his claim after 
 her deceafe. The court faid, it would have 
 made no difference if he had taken out admi- 
 niftration : and that there were many inftan- 
 ces, where a hufband has been decreed to 
 {land as a truftee for the feparate ufe of his 
 wife. But, in general, this latitude of allow- 
 ing a wife a diftincl: property and intereft 
 from her hufband appears an innovation and 
 refinement on our old a law, not k much, per- 
 haps, for the advancement of morality. 
 
 Another inftance, in which a ' wife might 
 difpofe of her perfonal effects by will, hap- 
 pened, where her hufband was banifhed for 
 life by aft of parliament ; in which cafe, in- 
 deed, it was faid, fhe might in all things adi 
 
 k Such feem to have been the prevailing fentiments of the 
 court in a caufe much debated ; (i Sid. 109.) and it is laid, 
 (ibid. 122.) to have been determined, that if a married woman 
 lofes at cards, her hufband may maintain an aclion of trover 
 to recover back the money. Any fuit of this kind in our days 
 would at leaft be thought extremely unpolite, and of the plain tiff 
 might be faid, in the language of another licentious age, 
 
 Rufticus ej} nimiuta, " 
 
 Et notos mores nonfatis urbis babet. 
 
 Ov. amor. 1. iii. el. 4. 
 
 J 2 Vern. 1*4, 5. v. Cooke's bankrupt laws, 2230. 
 3 Wms. 37 &c. &n. C. 
 
 as
 
 442 Of the laws refpe&ing the LECT. 16. 
 
 as a feme fole. Altho m bequefls by married 
 women operate rather by way of appointment 
 than of ftrict and regular wills; yet, to determine 
 whether they were a&ually made, belongs ex- 
 clufively to the eccleliailical jurifdiction. If, 
 however, the right of making them comes 
 in queftion, the fpiritual judge mall not de- 
 cide that, but the king's bench will grant a. 
 prohibition. 
 
 Farther obfervations concerning the effects 
 of marriage on the real and perfonal property 
 of the hufband and wife, will neceflarily be 
 introduced in the fecond part of this courfe of 
 lectures. 
 
 Another confequence of the matrimonial 
 union is the reftraint of a hufband and wife 
 from being witneffes for or againft eacfy 
 other: but of this matter I mall treat in 
 my n difquifitions on parol evidence, 
 
 m Burr. 432, 3; and they muft be proved there before 
 they can be fued upon in a court of law or equity. (Dougl. 
 707709.) 
 
 Left. LII, 
 
 A*
 
 t E c T . 1 6 . relation ofhujband and 'wife. 44 3 
 
 As to litigations of the civil kind, both 
 in law and equity, the general rule is, that 
 where a wife is made defendant, the hufband 
 alfo muft be a party: and where they are 
 jointly fued, me cannot be arrefted with^ 
 out her hufband, tho the writ, as to the huf- 
 band, is returned t( non eft inventus'* There 
 p are, however, excepted cafes, in which the 
 wife may be fued alone, as on a promifory 
 note given by her, the hufband having been 
 tranfportedy and the time unexpired. It feems 
 alfo a wife is rendered folely refponfible to 
 creditors by a divorce a menfd et toro, of which 
 Alimony is a confequent. For in a q cafe, ap-r 
 parently lefs ftrong, of a voluntary parting and 
 feparate maintenance, it has been lately adjud- 
 
 * i Durnf. & Eaft 486, 7. 
 
 f 2 Black. 1 197, 8. i Durnf/& Eaft 6, 7. 2 Vern 104, 5, 
 , Yet a fpecial aft of parliament was formerly pa/Ted to en- 
 able the duchefs of Exeter to aft as a feme fole, during the life 
 of her hufband, who was attainted ; (l Inft.i33.a. ^thed. n-4-) 
 which feems fuperfluous, even as the law was then underftood, 
 (Moor 851 and the cafes cited there; and i Inft. 133.3. &n. 3. 
 1 3th ed.) As to a wife's being a fole plaintiff, it is faid, 
 (ibid. n. 4.) that fhe may have a writ of deceit againft her huf- 
 jiand, who levies a fine in her name, citing M. 9 & 10 E. I ; 
 but this, I apprehend, cannot now be made a poffible exception 
 to what I have afferted, (left. VI.) that fuch aftions are invaria- 
 b.ly difallowed. 
 
 S I Durnf. & Eaft 510,
 
 444 tyifa laws re/petting the LECT. 16. 
 
 ged, that fhe might con trad and be fued as a 
 feme fole ; that fhe would continue liable, 
 tho fhe fhould alien or exhauft the whole of 
 fuch diftinct fund ; that the hufband was not 
 liable even for neceflaries ; and that a fecond 
 hufband was accountable for debts contracted 
 during the ftate of feparation from the former. 
 A wife's liability r of being fued alone, infers 
 her capacity of being fole plaintiff againfi 
 thofe with whom fhe may con trad. 
 
 Where ' the hufband brings any action, 
 real, peribnal, or mixed, in his wife's right, 
 fhe muft, generally* be joined on the record. 
 The fame ' is ufually done, where the wrong 
 complained of is perfonally injurious to her, 
 as if fhe be aflaulted and beaten, falfely (that 
 is, unlawfully) imprifoned, actionably flan- 
 dered, or malicioufly indicted. But in fome 
 of thefe cafes, if the hufband alleges particu- 
 lar damage to have accrued to himfelf, he 
 may maintain the action alone. He may u 
 
 * i Bac.abr. 308. 
 
 * i Bui. 21. i R. A. 347. Sal. in. Bunb. 277. 
 
 1 Yel. 89. i Sal. 119. W. Jon. 440. 
 
 2 Cro. 77. 205. Lit. 13. 2 Mod, 217, i Vcrn. 396. 
 
 Sir. 229. 
 
 either
 
 relation of hit/band and wife. 445 
 
 cither fue alone, or join his wife, where me 
 is the meritorious caufe of the action, or 
 where a bond or indenture of covenant is 
 made to them both, or to her alone before 
 the coverture. But in an x action for the work 
 and labour of the wife, where no exprefs pro- 
 mife of recompence is made to her, the huf- 
 band ought to fue alone. For it refts on the 
 fuppofed promife of adequate compenfation, 
 raifed by implication of law, and that is fo 
 raifed and implied to the hufband. 
 
 The hufband ' is fubject to debts contract- 
 ed by his wife for neceflaries, except me 
 elopes from him, or (as is aforefaid) has a fe- 
 parate maintenance, and then he is not 
 chargeable. But if the z hufband without 
 caufe difcards his wife, he will be liable to 
 pay for neceflaries provided for her. For he 
 is bound to maintain her : if they are in an 
 indigent ftate, and to be relieved as paupers 
 by the parifh, her laft legal fettlement (as we 
 have formerly feen) is always that of her huf- 
 band* A hufband is alfo a liable in an action. 
 
 * i SaJ. 114; r Str. 647. 706; 875. 1122.' 
 
 *Str. 1214. * i Inft. 351. t>. 
 
 of
 
 446 Q/" *& e ^ aws rej^e5lmg the t E c T . 1 6 * 
 
 of trover or detinue for goods in his wife's 
 pofTeffion, being the property of others, be- 
 fore marriage : and b he may be fued for 
 rent, which accrued due from her, antecedent 
 to the coverture. But c after her deceafe he 
 is not liable to debts which were contracted 
 by her, while me was fmgle, tho he might d 
 have been fued for them in her life time. 
 For in thefe cafes no credit was given to the 
 hufband or his eftate at the time of contract- 
 ing the debt. If on the other hand a woman 
 perfonally contracts debts during the cover- 
 ture, and then the hufband dies, in this cafe> 
 credit having been given to him, it feems, the 
 creditor ought to fue his perfonal reprefenta- 
 tive (when me does not happen to be fo) ra- 
 ther than the widow, or a fecond hufband, 
 if me marries again. 
 
 Laftly, as e to crimes and mifdemeanors, 
 the laws have always been very merciful in 
 
 b i Inft. 55. b. Bro. mod. intr. 162. 175. (ed. 1674.) 
 
 iR. A. 351. 
 
 a 3 Mod. 1 86. In like manner, no debts due to her dnt 
 
 fola, fliall go to the hufband by tie intermarriage, if unrecover* 
 ed in her life time. (Ibid.) 
 
 * i Hawk. 2. 
 
 regard
 
 LECT. 1 6. r elation of hujband and wife. 447 
 
 regard to femes covert; for they are not 
 amenable to punimment for a bare theft, 
 committed under the coercion or in the 
 company of their hufbands ; neither mall 
 they be deemed acceffory, for receiving their 
 hufbands, who have been guilty of a felony ; 
 tho it is faid f , that men become acceffories by 
 receiving their guilty wives; which latter 
 do&rine appears very rigorous, involving an 
 embarraffing repugnance between a moral and 
 a civil duty 8 . 
 
 * i Hawk. 2. 
 
 1 1 mean more peculiarly of the civil kind. For a com- 
 pliance with civil indications (not being mala in fe) is alfo at 
 the fame time a moral and religious duty. Therefore I was ne- 
 ver fatisfied with fir William Blackftone's manner of treating 
 the queition, whether human laws bind theconfcience. (i Black, 
 corom. 57, 58. Elem. jur. 23, 24. 32.} 
 
 LEG*
 
 448 Ofperfonsy as confidered by the IECT. 17. 
 
 LECTURE XVII. 
 
 OfperfonS) as confidered by the law t in other 
 domeftic relations. 
 
 II. T T A V I N G in the laft lefture treat- 
 iJL ed of the matrimonial connection, 
 with refpecl: to the contracting of it, and the 
 legal confequences of that union, the next 
 great domeflic relation to be mentioned is 
 that of parent and child : in regard to which, 
 tho our civil institutions have not raifed pa- 
 ternal power fq high as it flood at Rome, 
 where * the f atria poteftas was one of the dif- 
 tinguiming marks of citizenmip, yet they 
 have not, our laws, I fay, have not been re- 
 mifs in inforcing thofe reciprocal rights and 
 duties, which reafon dictates, and the divine 
 law commands. 
 
 Proprium civium Romanorum. (Inft, 1. 1. 1. 9. 2.) 
 
 For,
 
 I. E c T . 17. law, in other dome/lie relates. 449 
 
 For, firfl, parents and children are legally 
 bound to provide relief for each other. The 
 mother and reputed father are compellable 
 alfo to contribute to the neceiTary mainte- 
 nance and fupport of their fpurlous iflue. On 
 the other hand, it is decifively laid down by 
 fir William Blackftone b , that an illegitimate 
 child is not, by our law, under the neceffity 
 of providing for the fuppofed father, but no 
 authority is cited, and no notice taken, whe- 
 ther fuch offspring may be judicially ordered 
 to relieve its indigent mother. In the fame 
 chapter, the civil law is juftly condemned as 
 neither confonant to nature nor reafon, when c 
 it denied maintenance to baftards born under 
 certain atrocious circumftances. But the un- 
 reafonablenefs did not flop here -, for altho 
 children by an inceftuous marriage were not 
 to be maintained by their guilty father, yet, 
 according to the novels, a father, who had 
 contracted an incefluous marriage, was to be 
 maintained by his innocent children : which 
 inconfiftency is remarked by a zealous d ad- 
 mirer of the Roman inftitutions ; who adds, 
 that, by the canon law, alimony is due even 
 
 i Black, comm. 454. Nov. LXXXIX. c. 15. 
 
 1 Aji civ. law* b ii. t 7. 
 
 Gg to
 
 45 Ofperfons, as conjidered by the L E c T . 1 7. 
 
 to children of this kind from their parents j 
 and that this latter rule was followed by all 
 confiftorial jurifdiftions. 
 
 But let us return to the relation of parents 
 and their legitimate offspring according to 
 the legal policy of our own country. 
 
 They may juftify an aflault in defence of 
 each other's perfons ; and e may maintain and 
 abet each other's fuits and litigations -, which 
 cannot be done by a ilranger without the 
 legal imputation of fome degree of crimi- 
 nality. 
 
 In what manner the real and perfonal 
 eftates of parents and children are difpofed 
 of by the law at their death, belongs to the 
 fecond part of this courfe of lectures. But 
 I mall here obferve, that as, on the one 
 hand, the laws of this country do not, like 
 thofe of Rome, lay any reftraint on a father's 
 power of difinheriting his children, fo, on the 
 other, fuch diftincl: property, as his offspring 
 
 2 Inft. 564. 
 
 may
 
 L E c T . 17. law, in other dome/lie relations. 45 1 
 
 may be intitled to, is intirely their own. A 
 father is by law accountable for the rents 
 and profits, which he has received of his fon's 
 real eftate, however ungracious it might be 
 in moft cafes ftri<5lly to inforce this right. 
 And if f a legacy is bequeathed to an infant, 
 payment thereof to his father is not fufH- 
 cient or available, and the executor may be 
 compelled to pay it over again. But it is 
 agreed, that a father is intitled to the advan- 
 tages and profits accruing from the perfonal 
 labor of his children, while they live with and 
 are maintained by him. 
 
 As to actions g brought in their right or on 
 their account, there are few, which he can 
 maintain. Thus, he h cannot fue for an af- 
 fault and battery committed on his fon, but 
 the fon only muft be the plaintiff. But if 
 the father can allege and prove, that his fon 
 was alfo his fervant, and that by reafon of 
 the outrage he loft the profits of his labor, 
 feruitium ami/it, the action would be main- 
 tainable. And in like manner it feems juft, 
 
 1 i Wms. 285, 6. (4th ed.) i Eq. ca. abr. 300, I* 
 a Atk. 81. , 
 
 f Burr. 1878, h i Cro. 55. 
 
 G g 2 that
 
 45 2 Qfperfons, as confide red by the L E c T . 1 7. 
 
 that a father might fue for the abduttion of 
 any of his children, as well as of the heir, 
 upon the fuggeftion and proof, that by means 
 thereof fervitium ami/it ; l or indeed, without 
 that harmer allegation, it is but reafonable, 
 that he might bring fuch action, in refpect to 
 the comfort and delight he has in them, his 
 anxiety for their lofs, and his intereft in their 
 education : which confiderations could hard- 
 Jy be recompenfed by pecuniary damages. 
 As to the father's power of moderate correc- 
 
 1 According to Glanvile J. (i Cro. 770.) tho the reft of the 
 court at firft were of a different opinion; but they fo far ac- 
 quiefced with his reafons, that the matter was adjourned ; there 
 was alfo an objection in point of form ; and the affair was end- 
 ed by arbitrament. (Ibid. & 771.) Thefe reafons perhaps 
 imply, that the children are not yet of adult years, or at leaft 
 are ftronger in that cafe. But it has been determined, (2 Durn. 
 & Eaft 1 66 &c.) that a father may maintain an a&ion for de- 
 bauching his daughter, fer quod fervitium ami/it, tho (he be 
 above the age of twenty-one years, where ac~ts of fervice are 
 proved. A iimilar action was of late brought by an aunt, for 
 aflaulting and beating her niece, who lived with her as a fer- 
 vant, per quod fervitium ami/it. In moving for a new trial it 
 feems to have been debated, whether the jury might confider 
 the damages the niece herfelf had fuftained, who had been de- 
 flowered and otherwife ill-treated. From the manner in whfck 
 the rule was drawn up, I look upon this matter as compromifed, 
 rather than eftablifhing any rule of law. (2 Durn. & Eaft 4, 
 5.) It would be difficult to maintain that A. can fupport an 
 action for damages done to &. (See i Cro. 770, i. Glanvila 
 J's obfervations on the cafe cited, of Rofs againft Parret.) 
 
 tion
 
 L E c T . j 7 . law, in other dome/lie relations. 453 
 
 tion over his children, it is fuch as reafon and 
 nature imply, not copied from the unlimited 
 aufterity of the Roman inftitutions. 
 
 When children arrive' at the age of majo- 
 rity, the legal power of a father, fays lir 
 William Blackftone J, ceafes, and gives place 
 to the empire of reafon. Herein alfo, then, 
 our laws differ widely from thofe of Rome, 
 by " which the power of the father feems 
 to have determined, finally, only by his 
 death, by his voluntary aft of emancipation, 
 pr by the fon's being created a ' patrician, not 
 by advancement to great offices of itate, or 
 even to the confular dignity, 
 
 III. Correfponding to the relation laft 
 treated of, and as a fubftitute thereto, when 
 
 j 4 Black, comm. 453. 
 
 k Inft. 1. i. t. 12. If the father loft his citizenfliip, or be- 
 czme/er<vus peena, and was afterwards reftored by an imperial 
 pardon, the f atria potejias was revived : fo if he was taken pri- 
 foner by enemies of the Roman ftate, and recovered his freedom : 
 and even tho manumijfion emancipated the fon's perfon, the 
 father retained fome fort of dominion over his effedls. (Ibid.) 
 
 1 The reafons of this are exprefled in the characterise ftyle 
 of Byzantine parade." Sed ex conftituticne no/Ira J'umjna pa- 
 triciatus dignitcu illico, impericdilus codicillis precjlitis, filium a 
 f atria poteftale liberal, Quit tnim patiatur t patrem quidem pojje 
 pr tmancipationis modumpoteftatisfuez nexibusjilium liber are : impe~ 
 rater iam autem celfitudinem noa va/ere euiji, qucn/ibi patrem elegit 9 
 #b aliena eximere pote/late ?" (Ibid.) 
 
 G g 3 its
 
 454 Ofpetjbns,asconfideredbythe LECT. 17. 
 
 its rights and its duties are interrupted by 
 the father's death, is that of guardian and 
 ward. 
 
 The oppreffions of guardians in chivalry 
 are abrogated with the feudal tenures. But 
 occafions ftill' occur for recalling to memory 
 the laws relative to guardian ihip in focage t 
 which is now the general or ordinary tenure 
 by which lands are holden. By the ft. 28 
 E. I. ft. i, it is declared, that if fuch lands 
 defcend on the part of the mother, the near- 
 eft relation on the part of the father mall 
 have the ward/hip of the heir. But m even 
 this early ftatute is fuppofed to be only an 
 affirmance of the antient common law : for 
 the rule is laid down more copioufly by 
 Bradon", who wrote before the paffing of 
 this aft; lir William Blackftone quotes a 
 limilar paiTage from Glanvile ; and Matthew 
 
 m Gi!b. 174. 
 
 n " lllis competit (ttftodia, ex farte quorum non defcendit htsredi- 
 tas, &c. Et regular tier ijerutn eft, quod nunquam remanebit aliquis, 
 in cuftodia alicujusde quo hateri pojfitfufpicio, quod velitjus clamarc 
 tn if/a hfreditate, et unde fe plures Jintjiliee et beeredes, et tenere de~ 
 leant infocagio, nulla debet effe in aherius cufiodia,fed fent in cuftodid 
 onfanguineorum modo quo prardifium eft." (Bra& 1. ii. C. ?7. 
 fol. 87. b.88. a.) 
 
 J ?lack. comm, 46 \.
 
 LECT. 17. /aw, in other dome/lie relations. 
 
 Paris p recites an ordinance of Henry the 
 firft, A. D. 1 1 oo, (not very clear or explicit 
 indeed, and apparently referring to fome prior 
 conftitution to the like efFedt) as to guardian- 
 fhip in focage. Hence Littleton q afTerts ge- 
 nerally, that the next kinfman, to whom the 
 inheritance cannot defcend in cafe of the 
 ward's death, mall have the cuftody of the 
 lands of the heir until his age of fourteen 
 years, as guardian in focage. Thus r a half 
 brother may be fuch guardian, becaufe he 
 cannot inherit. But ' if lands defcend to 
 fifters in coparcenary, the eldeft, being of full 
 age, mall not be guardian in focage to the reft. 
 Affinity l , without confanguinity, as of a ftep- 
 mother, will not avail. Of u thofe in equal 
 degree the eldeft mail be preferred as guar- 
 dian; and where lands defcend from each 
 parent, that relation mall be guardian of the 
 heir, who, being in equal degree with any 
 
 p Si v ero uxor cum liber is remanferit, dotemfuam tt marita- 
 gium babebit, dum corpus fuum legitime fervabit, et earn non dabo 
 nljl fecundum wile fuum ; et terra liberorum cujios Jit, ji<ve uxor, 
 Jive alius propinjuior, qui jujius efli debet. (Mat. Par. 56. ed. 
 1640.) 
 
 ^ 123. r Mo. 655. i Cro. 825. 
 
 Braft. loc. cit. i Inft. 88. a. Prec. Cha. 283. 
 
 I Inft. 88. a. b. 
 
 G g 4 other,
 
 45 ^ Ofperfonsy as confidered by the L E c T . 1 7. 
 
 other, firft afTumes the cuftody of him, but 
 the guardianship of the eftates mall feverally 
 belong to thofe relations, to whom they can*- 
 not refpecftively defcend. 
 
 Our law differs in this refpect from the 
 rules of the civilians, and of all the foreign 
 feudifts. Their x principle is " 'ubi fuccef- 
 Jionis emolumentum, ibi et tutela onus effe debet'* 
 The fuperior wifdom of the Englifh inflitu- 
 tion, namely, that the heir ought not to be 
 in the cuftody of any perfon, to whom the 
 fucceffion would immediately devolve, is 
 boafted of by Fortefcue and Coke, as fir 
 William Blackftone obferves y , and he feems 
 to concur with them -, tho others z treat it as 
 an unworthy fafpicion, and a relique of bar- 
 barous times. 
 
 It may reafonably be hoped and believ- 
 ed, that fuch profpect of gain would rarely, 
 
 * Gilb. 174. y i Black, comm. 461, 2. 
 
 * 2 Wms. 264. 9 Mod, 142. 3 Bro. ca. parl. 346: and 
 fee a learned and maturely confidered note, i Inft. 88. b. 1 3th 
 ed. n. 6. This rule of Englifh law does by no means imply 
 the neceflity of removing a teftamentary guardian, as a mother 
 or other near relation, intrufted by the father, and who by the 
 fame will hath limited the next remainder to fuch appointee. 
 
 very
 
 LEG T. 17. /aw, in other dome/lie relations. 457 
 
 very rarely indeed, influence a guardian to 
 wicked defigns, or even to ufe lefs care on 
 behalf of his ward, than he- would otherwiie 
 exert. Still civil institutions mufl proceed on 
 indifcriminate principles : they muft admi~ 
 nifter no temptation, by which a pronenefs to 
 depravity may be feduced; and that this 
 might fometimes happen, is fufficient to j ug- 
 lify the general circumfpeclion of our law : 
 which is in this refped: confonant to the law' 
 of Scotland, 
 
 Guardianfhip in focage lafts only till the 
 heir is fourteen years of age, and he may then, 
 call the guardian to account; for tho the 
 flatute of Marleberge declares b , that this is 
 to be done at the heir's lawful age, and the 
 writ on the occafion fpeaks of his full age, 
 fuch c expreflions are to be underftood accord- 
 ing to the fubject matter, and therefore here 
 mean fourteen years. If d before the minor ar- 
 
 a The heir of any focco-man fliall be in the cuftody or tutorie 
 of the neareft kinfman : fo that if the heritage defcends on the 
 part of the father, the neareft kinfman on the part of the mo- 
 ther fhall be guardian, and vice vtrfa ; and the heir of any 
 focco-man or perfon holding by blanch farm fliall never be in 
 cuftody of any perfon, of whom fufpicion may arife, that he 
 claims any title to the lands. (Skene's region mag. b. u. 
 f- 47-) 
 
 k C. 17. c j Inft, 89, a, * Pl t 293. Ow. 45, 46. 
 
 rives
 
 45 8 Ofperfons, as confidered by the L E c T . 1 7.. 
 
 rives at that age the guardian dies, the guar- 
 dianfhip fhall not go to an executor, nor to the 
 hufband of a deceafed wife, but to the ward's 
 next of kin ; neither c fhall this office be for- 
 feited by outlawry or attainder. 
 
 During f the continuance of his power and 
 truft, the guardian has an intereft and autho- 
 rity in the eftate : he receives the rents and 
 profits for the heir's ufe, and may cut timber, 
 bring an action of trefpafs, hold manerial 
 courts, and demife copyhold eftates, in his 
 own name. But 8 he cannot prefent to a va- 
 cant benefice. The minor himfelf, who is 
 feifed of the advowfon, muft exert that right, 
 at a very tender age, before perhaps he is ca- 
 pable of writing his name, without the aflift- 
 ance of fome other hand to guide the pen : 
 which, confidering the nature of the tranfac- 
 tion, feems hardly free from cenfurable ab- 
 furdity. The h reafon affigned is, that the 
 
 - PL 294. 
 
 f 2 Cro. 55. 88, 89. 2 R. A. 41: fee Ambl. 370, i. 
 1 Bro. t. Garden & prochern amy, pi. 5. 
 
 * zR. A. 41. 
 
 h Perhaps a better reafon is, that a prefentation makes and 
 proves a feifm ; (left. XLIII.) and therefore the law required 
 the heir perfonally to aft : tho indeed it muft be owned, that if 
 was antiently holden, that a prefentment by the guardian in the 
 name of the heir, was a good ride for the heir. (Watf. c. xiii. 
 frtp.fn.) 
 
 guardian
 
 LECT. 17. law, mother domeftic relations. 459 
 
 guardian cannot bring any thing to account, 
 for the value of the prefentation ; fince the 
 law abhors fimony. But this reafon is not 
 univerfally regarded. For tho a guardian, 
 who difpofed of his ward in marriage, was 
 accountable for the value of the marriage, 
 that is, for what would be given for fuch 
 alliance ; yet i this did not hold, if the mar- 
 riage was equal on both fides : therefore in 
 that cafe he might aft, though he was to 
 bring nothing to account. 
 
 In refpect to leafes k made by a guardian, 
 it has been adjudged, that they are abfolutely 
 void when the infant attains the age of ma- 
 jority, if the term is then unexpired, without 
 any aft done by him to defeat them. But, 
 notwithstanding the general expreffion in the 
 cafe alluded to, that " a guardian cannot 
 make a leafe," it mould feem, that fuch ' de- 
 , to continue during the minority, or any 
 
 J Lit. \ 123. k 2 Wilf. 129. 135. 
 
 1 2 R. A. 41. PI. 293. i Leon. 158. 322. 4 Leon. 7. 
 Ow. 45. Hutt. 105. & 3 Bac. abr. 407, 8; where the three 
 laft books are cited, and what is faid in Hutt. explained, and it 
 is laid down, that a guardian for nurture can only leafe at will; 
 tut I am fpcaking of thofe in focage, and fuch as have equiva- 
 lent authority. The title referred to in Bac. abr. is fuppofed to 
 have been compiled by chief baron Gilbert. 
 
 morter
 
 460 Of perfons, as conjidered by the LECT. 17. 
 
 morter term, muft be valid, without refort- 
 ing to the lord chancellor's authority, and a 
 reference to a mailer of the court. 
 
 At m common law, a father could not by 
 will appoint a guardian for his child, in ex- 
 clufion of thofe either in chivalry or focage. 
 But now, by ft. 12 C. II. c. 24. 8, 9, fa- 
 thers, even tho n minors, may, by deed or 
 will, attefted by two witneffes, appoint guar- 
 dians to their children, with the fame autho- 
 rity that guardians in focage have, and to 
 continue till the wards attain the age of 
 twenty-one years, or for a lefs period . If, 
 however, the father dies withput having fub- 
 fHtuted any guardian of his own choice, ac- 
 cording to the power given by the ftatute, 
 
 Vau. 178. 1 80, Gilb. 176. 
 
 * But if the perfon appointed be within age, it feems he 
 (like a guardian in focage) would be incapable of acting, 
 (I Inft. 88. b.) 
 
 A father cannot exercife this power in refpeft to a natural 
 child : but if in faft he makes fuch nomination, theperfons men- 
 tioned will be appointed guardians by the chancery, even without 
 a reference to a matter of the court. (2 Bro. 583, 4) Nei- 
 ther can a grandfather appoint a teftamentary guardian for his 
 grandfon, but he may leave him an eftate on that condition, 
 and if the father does notfubmit to it, it will work a forfeiture, 
 (Ambl.'3o6.) 
 
 guardian/hip.
 
 L E c T . 1 7 . law, in other domejlic relations. 46 1 
 
 guardianfhip in focage ftill takes place. Such 
 9 teftamentary guardian hath no different in- 
 tereft, nor is any other ways diftinguimable 
 from a guardian in focage, except as to the 
 duration of the wardfhip : neither can he, any 
 more than the latter, transfer the truft perfo- 
 nally repofed in him by the teftator to Ano- 
 ther. 
 
 A teftamentary guardian, like others, is 
 removeable by the court of chancery. It has 
 been * thought by a lord chancellor in Ire- 
 land a fufficient reafon for taking away a 
 teftamentary guardianfhip from a mother, that 
 me was married to a fecond hufband, me being 
 alfo devifee in remainder of the real eftate in cafe 
 the infant wards all died without illue : buV 
 fuch order was reverfed on appeal to the lords 
 of the Britifh parliament. And agreeably 
 to this fentence of reverfal, lord chancellor 
 Hardwicke s held, that children, after their 
 father's death, have a natural right to be un- 
 der their mother's care ; and he made an or- 
 der accordingly on a grandfather to deliver 
 
 Vau. 179 &c. 2 Wilf, 129, 130. > 9 Mod. 1-35; 
 
 * 3 Bro. ca. parl. 34.1 349. 2 Atk. 15. 
 
 them
 
 46 2 Ofperfons, as confidered by the L E c T. 1 7. 
 
 them up to her, tho me was married to a fe- 
 cond hufband. It was faid in the cafe in Ire- 
 land, that the civil law (which the teftator in 
 queftion underftood very well) ought to be 
 the rule ; and that, by that law, if the mother 
 of infants marry a fecond hufband, the educa- 
 tion of her children may be taken from her. 
 But in the * book cited in the margin of the 
 report, it is exprefsly laid down, that as the 
 mother is capable of being tutorefs, fo the 
 guardianfhip may be likewife committed to 
 her fecond hufband, father-in-law to the mi- 
 nor : and this appears from u various texts of 
 the Roman inflitutions. 
 
 It is farther remarkable, that, altho with 
 us a man may waive any kind of truft before 
 he has acled therein, a x perfon was compel- 
 lable, by the Roman law, to difcharge the of- 
 fice of guardian, unlefs he could avail himfelf 
 of one of the fpecihed legitimate excufes. 
 
 The court of chancery exercifes a difcre- 
 tionary and domeftic fpecies of authority, in 
 
 * Domat vol. i. 270. 
 
 D. l.i. t. 7.1. 32. i. Cod. l.v.t. 58.1. 3-&t. 6.1. 2. 
 
 * Domat b. ii. t. i. i. paragr. u. & b. ii. t. i. 7. 
 Inft. 1. i. t. 25. 
 
 refpect
 
 LEG T. 17, law, in other dome/lie relations. 463 
 
 refped: to its wards, occafionally increafing the 
 allowance for maintenance, and giving fpecial 
 directions, where requifite, for the welfare and 
 management of the infants. Thus alfo, in 
 cafe y of clandeftinely marrying a ward of that 
 court, of either fex, the lord chancellor will 
 interpofe his jurifdidlion, in a fummary way, 
 to punifh the delinquents, and will deter- 
 mine matters happening in confequence of 
 fuch marriage, as alimony, or the like, exclu- 
 fively, and in reftraint of the fpiritual judge. 
 The court of wards and liveries had powe* 
 over infants by aft of parliament. But when 
 that tribunal was z diflblved, the court of 
 chancery refumed, as general guardian, its 
 complete original jurifdi&ion. 
 
 y I Atk. 515, 6, 7. Tnthis cafe, the wife having inftituted 
 
 a fuit in the ecclefiaftical court for alimony and reftitution of 
 conjugal rights, and proceeded to fentence of excommunication, 
 lord Hardwicke, tho he could not reverfe fuch fentence, not 
 only iflued an injunction againft proceeding in the fuit, but or- 
 dered that, on an application to be abfolved from the excommu- 
 nication, the plaintiff there fhould confent. In another cafe 
 the chancery interfered, when the infant's father was living, 
 but a bill had been filed in refpeft to his eftate, and this was 
 fufficient to bring him under the care of the court, and to render 
 the marriage a contempt of its jurifdiftion. (Ambl. 301 &c.) 
 
 * St. 12 C. II. c. 24. i Atk. 5 16, 7. 
 
 IV. The
 
 464 Ofperfons, as confidered by the L E C T . 1 Ji 
 
 IV. The laft domeftic relation, which I 
 am to fpeak of, is that of mailer and fervant. 
 The laws of England^ with wife beneficence, 
 extend their common protection to the weal- 
 thy and the indigent. 'No private fubjedt, as 
 fuch, exercifes any kind of dominion, except 
 what arifes from the relations before fpoken 
 of, or what is fubmitted to by voluntary 
 compact and agreement. It will not how- 
 ever be thought an unreafonable abridgment 
 of natural liberty, that by the ft. 5 EL c. 4* 
 7, perfons of the defcription, therein con- 
 tained mould be compellable to be retain- 
 ed by the year in hufbandry, for the necef- 
 fary purpofes of agriculture* and for avoiding 
 the evil confequences of idle vagrancy. But 
 one provifion in that law feems obfolete, ac- 
 cording to which, the giving of greater wages 
 than the rates proclaimed is made punifhable 
 with imprifonment for ten days. The power 
 given by this act to juftices of the peace, to 
 order payment of fervants' wages, a extends 
 only to thofe retained in hufbandry. 
 
 When this contract of hiring and fervice 
 is entered into, it is of reciprocal obligation, 
 
 f Sal. 442. 6 Mod. 205. Carth. 156. 
 
 arid
 
 is c T . 1 7. 'Saw, in other dome/lie relations. 465 
 
 and cannot be diflblved inftantly, but by mu- 
 tual confent ; that is, a reafonable" notice of 
 fuch intention muft be given on both fides, 
 where it is not exprefsly provided for in the 
 terms of the ftipulation : fo averfe is the fpi- 
 rit of our law from indulging any arbitrary 
 proceeding. But if indeed a mailer fhould 
 even fuddenly difcard a bad and malicious fer- 
 vant, from whom any damage or difturbance 
 was probably apprehended, fuch circumftan* 
 ices being made to appear, would juflify the 
 difcharge, without reforting previoufly to a 
 juftice of the peace, notwithflanding the ex- 
 preffions in the ftatute, above referred to, 
 that may feem to contradidt this opinion. 
 
 While this engagement fubfifls, what has 
 been faid of a father's legal power of correc- 
 tion, of maintaining and abetting fuits and 
 actions, and of fee king reparation in a judicial 
 mode for any injury, whereby the plaintiff loft 
 the fervices, fervitium ami/it, of the perfon in 
 queftion, is applicable to this relation of maf- 
 ter and fervant. But one matter, which feems 
 to call for particular notice, is, that a matter 
 is, in general, accountable and refponlible, 
 
 H h where
 
 466 Ofperfons, as confidered by tie LECT, 17. 
 
 where any perfons fuftain injurious damage 
 by the negligence or mifconduct of his fer- 
 vant, employed at that time in fuch matter's 
 actual fervice. Thus an action is maintain- 
 able againft the mafler of a drayman, who 
 wilfully or negligently drives againft another's 
 coach or carriage, whereby it is fpoiled or 
 damaged : which is but put for an example. 
 The reafon of making the mafter liable pre- 
 vails ftronger, where the perfon, fuftaining 
 damage, contracted with fuch mafter, or his 
 known fervant or agent, for the conveyance 
 of goods by land or water, which are fpoiled 
 by the negligence of thofe employed ; and fo 
 in fimilar inftances. On the other hand, if 
 by the neglectful conduct of an occafional 
 agent or fervant, damage enfues to the mafter 
 employing him, fuch mafter may in this cafe 
 be the plaintiff, and maintain an action to 
 recover his lofs againft the culpable mer- 
 cenary. 
 
 There are a fort of menial or domeftic 
 fervants, called apprentices, who form a dif- 
 tinct clafs. The policy of our law, which 
 makes the ferving of aft apprenticed ip a ne- 
 
 celfary
 
 l E c T . 17. la w, in other domeftlc relations. 467 
 
 ceflary qualification to the fetting up of fuch 
 trades as were in ufe at the time of paffing 
 the law b alluded to, has " been much debated. 
 Unfkilful workmen have been rarely profe- 
 cuted, and are not likely to be fo, by their 
 rivals in trade; which is one argument to 
 controvert this provifion in point of expedi- 
 ence. On the other hand, it is a d ufeful in- 
 ftitution, to have this opportunity, aided by 
 the compulfory powers of the ftatute, of 
 breeding up the youth of a country in habits 
 of fober and induftrious difcipline. In the 
 * common form of indentures of apprentice- 
 ihip, under the ftatute of Elizabeth, the fa- 
 ther, being a party, is anfwerable for the co- 
 venants to be performed by the fon, as well 
 as thofe which he perfonally engages to ful- 
 fil. 
 
 The differences, whkh may arife between 
 matters and apprentices, may, for the.moft 
 part, be terminated, under the aft referred 
 to, and the later ft. 20 G. II. c. 19. 3, 
 by juftices of peace. But fometimes the 
 
 St. 5 El. c. 4. f 31. Burr. 1. 4 i Sho. 66. 
 
 * Dcu^l. 5 1 8, 9. R. 2. 
 
 H h 2 court
 
 468 Ofperfons, as cwfidere 
 court of chancery has gone confiderablc 
 lengths, in decreeing money received with 
 apprentices to be refunded. Thus f , where a 
 father paid a hundred and twenty pounds on 
 placing his fon as clerk to an attorney, who 
 then lay ill of the ficknefs whereof he died 
 within three weeks ?fter fealing the articles, 
 and it was provided, that fixty pounds fhould 
 be returned, in cafe the mafter died within 
 one year, for which fum a bill in equity was 
 brought, the court ordered a hundred guineas 
 to be paid back to the complainant, notwith- 
 flanding the parties themfelves had provided 
 againft accidents, and agreed, in certain, for 
 a fmaller retribution, and, in general, " mo- 
 .dus & convenfio <uiricunt /egem." In another 5 
 inflance, the defendant, an apothecary, hav- 
 ing put away his apprentice by re?. fon of ne- 
 gligence and mifdemeanors laid to his charge, 
 the court ordered thirty pounds of the money 
 received to be refunded, the rather indeed be- 
 caufe the indentures were not inrolled, fo 
 that the matter was not cognizable before the 
 chamberlain of London. Yet, notwithftand- 
 ing thefc precedents, in h a more recent cafe, 
 
 
 * i Vcrft 460. 2 Vern. 64. k i Atk. 5 1 8. 
 
 the
 
 LECT. 17. law, in other domcftic relations. 469 
 
 the court feems to have difclaimed this kind 
 of jurifdiUion, and to have referred it to juf- 
 tices of the peace. 
 
 Laflly, there ! is a fort of perfons, who, 
 in fome refpe&s, may be confidered by the 
 law as fervants, being authorifed by others to. 
 a<ft for them, under feveral names, which in- 
 timate the nature of tlreir refpective em- 
 ployments, as clerks, ftewards, bailiffs, re- 
 ceivers, k journeymen, attorneys, ' factors, a- 
 gents, and brokers. In thefe cafes, to lay 
 down general rules is impracticable and dan- 
 gerous; I (hall therefore only obferve, that 
 for the moft part thefe fubftitutes are not an- 
 fwerable to their refpedlive principals for any 
 fortuitous lofs or damage, provided they have 
 acted with upright intentions, without grofs 
 negligence, and have, with reafonable diligence, 
 purfued their cornrnimons. 
 
 1 See 1178. 
 
 k An aflion lies by a mafter for enticing away his journey- 
 jneo, hired for no determinate time, as well as other fcrvarus, 
 (Cowp. 54 &c.) 
 
 1 See, as to merchants and factors, Ambl. 252 &c 297, 8. 
 
 H h 3 Having
 
 47 Ofp er f on *> &* LECT. 17. 
 
 Having now treated of natural perfons, in 
 the feveral capacities wherein they are conft- 
 dered by our laws, it remains to fpeak of a 
 fort of artificial perfons, called " Corpora- 
 tions/' which will be the fubjed of the en- 
 fuing lecture. 
 
 LEG-
 
 LECTURE XVHI. 
 
 Of Corporations. 
 
 SUCH individuals, and fuch focieties, as 
 are inverted by the law with a political 
 character and perfonality, wholly diftindt from 
 {heir natural capacity, and chiefly intended as 
 the means of perpetuating in fucceffion their 
 rights and their duties, are ililed " Corpq- 
 rations." For lawyers divide corporations 
 into file and aggregate. Thus 'the re<5lor of 
 a parochial church, and perfons in many other 
 ftations, whofe rights and duties, as fuch, 
 perpetually exift in contemplation of law, and 
 are tranfmifiible to their refpe&ive fucceflbrs, 
 in whom they vefl immediately on their af- 
 fuming of the fame character, are frequently 
 ftiled fole corporations. But it might have 
 been better to, have given them, fome other 
 denomination. For, except the incapacity of 
 \\ h 4 purchafing
 
 Of corporations. LECT. 18. 
 
 purchafing in a mortmain, very few points of 
 corporation law are applicable to them. The 
 power of making Valid by-laws, the right of 
 electing new and of removing old members^ 
 and the neceffity of a common feal, as well as h 
 other matters, have little or no relation, ex- 
 cept to corporations aggregate. Indeed c all 
 ecclefiajlical corporations^ wnether fole, as. 
 redtors and vicars individually, or aggregate, - 
 as deans and chapters, are under the jurifdic- 
 tion of the ordinary, as vifitpr. But this* 
 authority of the eccleliaftical judge feems 
 widely to differ from what is commonly meant 
 by vifitatorial power. For it is lefs of the 
 difcretionary kind, being laid under many 
 rules and reftridlions j and is not, I apprehend, 
 final and conclufive, but may be e appealed 
 
 from, 
 
 a i Inft. 2. b. 2 Inlt. 75. 
 
 k As th? manner of firing and being fued. The capacity 
 alfo of taking chattels real and perfonal in fucceffion is, by the 
 general rule of law, confined to corporations aggregate, (i Inft, 
 9. a. 13 ed. n. i.) 
 
 c 2 R. A. 230. 
 
 d Burr. 567, 8, 
 
 This is admitted, (lord C. J. Holt's argument in the cafe 
 C.f Philips v. Bury, in 2 Durn. & Eaft 353.) where he vifits as 
 ^rdinary: but it is faid to be ocherwife, where he vifits as patron^ 
 that is, I fupppfe, where the ordinary happens to have an exprefs 
 delegation of vifitatorial power by the ftatutes of the founder of 
 fome eleemofynary corporation. Thus the bifhop of Wi.n.chefter Ls 
 patron and vifuor of Magdalen college, Oxford, by nomination 
 pf the founds. He is alfo ordinary, for the file of the college 
 
 *
 
 J,ECT. 1 8. Of corporations. 4*3 
 
 from, like other fpiritual fcntences, in a regu- 
 lar feries up to the higheft ecclefiaftical court. 
 This therefore appears to be no other than a 
 part of the ecclefiaftical polity of the realm. 
 The f dependence of deans and chapters on 
 the bimop, whatever it mi^ht formerly have 
 been, is very much reduced. Thefe mem- 
 bers of cathedral and collegiate churches feem 
 now to be confidered as the only ecclefiaftical 
 or fpiritual corporations aggregate j ai:d per- 
 haps have been fo properly ever fmce the refor- 
 mation. Of deans g and chapters I have made 
 mention in a preceding lecture ; and mail 
 here add, that h if fuch bodies prefent their 
 head, namely the dean, to a benefice, it is 
 void, but one of the prebendaries, or the like, 
 may be prefented, 
 
 I now proceed to lay corporations; which, 
 are divided into i. eleemofynary, and 2. civil. 
 
 is made a part of his diocefe. But if a bimop founds an cleemo- 
 fynary corporation, and does not appoint a vifitor, his heir, and 
 not his fucceffor, vyould be vifitor and patron : the patronage, 
 which refuhsfromfounHerJhip, and is fometimes fo called, muft be 
 by defcent. 
 
 f 2 Sum, ecc!. law, 81. 
 
 * There are various forts of deans, (i Inft. 55.3. 13 ed. 
 n.i.) 
 
 h Watf. c. xx.->- So it has been holden, that the mayor 
 and aldermen of London may make a grant to an alderman, 
 but not the aldermen and city to the mayor, for he is an inte- 
 gral part. (2 Sal. 426.) 
 
 i. Over,
 
 474 Of corporations. LECT. $8<, 
 
 i. Over eleemofynary corporations only, 
 as it appears, that power of vifitors properly 
 fo called, is extended, which, fince the cafe of 
 1 Exeter college, has been, generally k , looked 
 upon final and conclufive, and exercifable ir* 
 a fummary mode, as well as without appeal. 
 All eleemofynary 1 corporations may, I believe, 
 be included under the name of hofpitals, and 
 colleges or fchools. And in refpeft to m vifi- 
 torfhip, there feems np difcrimination between 
 colleges and hofpitals. Both of thefe founda- 
 tions, as well as n fchools endowed, are to be 
 yifited by the heirs of the founder, if he does 
 not nominate any other in their room. Such * 
 right will defcend,tho thefounderis filentabout 
 it in his life time ; and it is not in his plea- 
 fure whether there mail be any vifitor or not; 
 and this kind of power was not introduced by 
 any canons or conftitutions ecclefiafKcal, but 
 is an appointment of the law; and it arifeth 
 
 * Trin. term 6 W. & Itf. i Lord Raym. 5. i Vez. 475. 
 2 Durn. & Eaft 346 &c. 
 
 k Burr. 200. ! i Lord Ray*. 6. 
 
 ni -2 Durn. & Eaft 353. It is faid indeed, (ibid.) that 
 
 the ordinary is v'fitor of Spiritual hofpitals, but there feem none 
 BOW of that defcription. 
 
 n 2 Wms. 326. 
 
 Sho. ca. parl. 45. i Vez. 472. 2 C urn, & Eaft 352. 
 
 from.
 
 I E c T . 1 8 . Of corporations. 47 5 
 
 from the property, which the founder had in 
 the lands afiigned to fupport the charity. 
 His heirs therefore, in perpetual fucceflion, 
 are the patrons and vifitors of fuch corpora- 
 tions as fubfift by the munificence of their 
 anceftorj and thefe p vifitors by defcent may 
 fupply and regulate the conftitution of them, 
 where it is defective. But the q founder may 
 veil or fubftitute fuch vifitatorial right in any 
 other perfon and his heirs, or in a fole corpo- 
 ration, as the bifhop of Winchefter and his 
 fucceflbrs. In refpect to fchools it is pro- 
 vided by the ' ftatute of charitable ufes, that 
 fuch endowed feminaries may be vifited, and 
 any mifmanagement redrafted, (as in cafe of 
 other eleemofynary foundations) by commif- 
 fioners, appointed under the authority of the 
 great feal, where no fpecial vifitors, overfeers, 
 or governors of the charity are affigned by the 
 
 F Sho. ca. parl. 45. 4 Mod. 124. .And the crown, it 
 feems, may grant new ftatutes, as patron of colleges of royal 
 foundation, even tho the general, or at leaft a fpecial, right of 
 vifitation is parted with. (Str. 912, 3. Fitzgib. 305 &c. 
 4 Bro. ca. parl. 41 &c.) 
 
 1 2 Wms. 326. If the vifitatorial power is transferred to 
 the biftop of A, not by the name of John &c. the grant is to 
 him in his politic capacity, and it is not neceffary to mention his 
 fucceflbrs. (Str. 913. Fitzg. 308.) 
 
 ' 43 El. c. 4.5 1.3. 
 
 founder,
 
 4/6 Of corporations. LECT. 18. 
 
 founder, and where (perhaps it may be added) 
 the heirs of the founder are unknown, or do not 
 choofe to aft. But it has been * determined, 
 that the governors of a charity, in whom the 
 legal eftate of the revenues is vefted, are not in 
 right thereof vifitors by construction of law, 
 not being exprefsly fo appointed. In fuch 
 cafe therefore the chancery may either dele- 
 gate commiffioners for charitable ufes, accord- 
 ing to the proyifipns of the Statute, or (which 
 is now the ordinary courfe) may act, without 
 iiich delegation, and exert an original jurif- 
 didion, on an information filed in the narn,e 
 of the attorney-general, on behalf, and at the, 
 instigation of the perfons intitled to the bene- 
 fit of the charity, called on this occafion, 
 the relators." In thefe ' cafes, when the 
 funds are more than fufficient to anfwer the 
 benevolent purpqfes particularly prefcribed^ 
 the common practice of courts of equity is to 
 extend the charity- in a mode confonant to the 
 general intention of the donor. 
 
 2 Wms. 325. Attorney-general v. Gaunt. Arg. Mich. 
 Term, 1/90. 
 
 * 8 Co. 130. b. &c. Ambl. 190, i. 201 &c. 2 Bro. 492 &c :> 
 This is called ". extending the charity cy pres." And fome- 
 times a charity will be eflablifhed cy pres, where no part of it can 
 take place precifely according to the fpecific directions of the 
 fpunder. 
 
 No,
 
 LECT. 18. Of corporations. 477 
 
 No "technical or fet form of words is ne- 
 ceflary to conftitute a vifitor. How far 
 therefore vifitatorial authority may arife by 
 conftruclion or implication may be in fome 
 meafure judged of by the following decifion. 
 It was x holden, that the chancellor of the 
 univerfi ty of Cambridge was general vifitor of 
 Clare-hall, without exprefs words of appoint- 
 ment, it being implied from various branches 
 of the vifitatorial power being given to him, 
 from his having the interpretation of the fta- 
 tutes, and from an exprefs exclufion of the 
 founder's heir. For diftinclion is taken be- 
 tween general and fpecial vifitcrs. Eleemofy- 
 nary foundations are the creatures of the 
 founder. It has therefore been laid down r , 
 " that he may delegate his power either ge- 
 nerally or fpecially, and may prefcribe parti-' 
 cular modes as to the exercife of part of itl 
 If he makes a general vifitor (as by the words 
 vijitator fit ) the perfon fo conftituted has all 
 z incidental power. But he may be retrained 
 as to particular inftances. The founder may 
 
 Burr. 190. x Burr. 201. / Burr. aco. 
 
 * Therefore he may deprive for contumacy, tho not Ipecified 
 in the ftatutes as a caule of deprivation. (2 Durn, Sc Eait 
 
 357' 8 -) 
 
 appoint
 
 47 S Of corporations. LECT. 18. 
 
 appoint a fpecial vifitor for a particular pur- 
 pofe, and no farther ; and may make a general 
 vifitor, appointing an inferior particular power 
 to be executed without going to the vifitor in 
 the firil inftance." On a another occafion, and 
 in another court, it was maintained " that the 
 founder may give a general power, or may 
 limit and bind by particular ilatutes and laws $ 
 may give the vifitor power of altering or giving 
 new ftatutes, or may reftrain him from doing 
 it, or from acting according to any other. If 
 the power to the vifitor is unlimited and uni- 
 verfal, he has in refpect of the foundation^ 
 and property moving from the founder, ho 
 rule but his found difcretion. If there are 
 particular flatutes, they are his rule, he is 
 bound by them ; and if he acts contrary to, 
 or exceeds b them, acts without jurifdiction? 
 the queftion being ftill open whether he has 
 acted within his jurifdiction or not, if not, 
 his act is a nullity." 
 
 It feems clearly c fettled, that, in colleges, 
 an ingrafted or annexed foundation, where no 
 
 * I Vez. 472. 
 
 v As if he is to vifit once in five years, and he comes oftener, 
 nnfummoned, the proceedings arc coram nan jvdice and voidr 
 (2 Durn. & Eaft 348.) 
 
 e Barr. 191. 203. i Vest. 79. 475. 
 
 9 new
 
 LECT. 1 8. Of corporations. 
 
 new ftatutes are given, muil follow the old 
 inflitution, be confidered as part of the gene-* 
 ral body, and fubjeft to the prior right of vi- 
 fltation. 
 
 There are however feveral cafes, refpe&ing 
 thefe eleemofynary corporations, which may 
 call for the interference of the court of king's 
 bench. Firft d , where it is doubted, whether 
 any vifitatorial power exifts in the perlbn ap- 
 plied to in that character ; this muft be fet- 
 tled by the above-mentioned tribunal, which 
 is a very different point of litigation from ar- 
 raigning the due exercifc of this authority, 
 where the exiftence of it is not called in quef- 
 tion. Secondly, if a c general vifitor mould 
 aflume the capacity of making new ftatutes, 
 a power of reftraining fuch ufurpation would, 
 I apprehend, refult to the king's bench. And 
 in like manner, if the f performance of a trufl 
 is to be decreed, and the vifitor mould be in- 
 competent to do complete juftice, a court of 
 equity muft be reforted to. To this head 
 may be referred difputes in which third per- 
 fons are interefted; as where a* mandamus was 
 
 * Burr. 158. T. Jon. 174. * See i Vez. 472, j, ' 
 
 f i Vez. 473 fcc. * Cowp. 378. 
 
 applied
 
 48 d Of corporations. LECT. i& 
 
 applied for to compel the warden of a College 
 to put the feal to an anfvver in chancery* 
 agreed to by the majority of the fellows, in 
 a fuit to compel the execution of a leafe; for 
 the vifitor cannot inforce a fpecific perform- 
 ance in fuch cafe ; and it was clearly holden 
 to be a matter not within his province. 
 Thirdly, it feems the fame common law 
 judicature may interpofe where the vifitor is 
 a party. Thus h a mandamus being directed 
 to the bifhop of Chefter, as warden of Man- 
 chefter college, requiring him to admit a 
 chaplain, he made return, that he was vifitor 
 of the fociety : and upon argument, it was 
 holden, that, tho a mandamus will not lie* 
 where there is a vifitor free from objecl:ion> 
 yet here the two offices being in the fame 
 perfon, there is a temporary fufpenfion, and 
 the king's bench mufi exert its authority. 
 For a l vifitor cannot be a judge in his owii 
 cafe, unlefs he has an exprefs delegation of 
 
 > Str. 797. 
 
 1 zDurn. & Eaft 338, 9. And fee 2 Diirn. & Eaft. 290 
 345, where the vifitpr's power was reftri&ed to making choic* 
 of one of two perfons returned to him, and the court of king's 
 bench granted a mandamus, dire&ing him to aft according to the 
 limits of his ftatutable authority : in which cafe the vifitor's af- 
 fumed appointment of a perfon not returned to him was confi- 
 dcred as not a vifitatorial aft. 
 
 fuch
 
 L E c T . 1 8 . Of corporations. 481 
 
 fuch authority ; and that would be a ftrange 
 concelTion.. In the following year J an a<5t of 
 parliament was pafled, to veft in the crown 
 the viiitatorial po wer over Manchefter college, 
 whenever the wardenfhip thereof mould be 
 holden in commendam with the bifhoprick 
 of Chefter, Fourthly, another inftance of 
 partially retraining a vifitor was in the k cafe 
 of Dr. Bentley, matter of Trinity college in 
 Cambridge, who wa.s cited before the bifhop 
 of Ely, as viikor over the fociety, to anfwer 
 fixty-four articles charged to be violations of 
 the flatutes. The king's bench granted a 
 prohibition, becaufe the bifhop, in the cita- 
 tion, had not fet forth his genuine authority. 
 But the haufe of lords, on a writ of error, 
 reverfed the former judgment, and went into 
 the confiderationof thefeveral accufations, and, 
 as to fome, confirmed the prohibition, and, as 
 to others, allowed the bifhop to proceed. It 
 was indeed inlifted, that the king was general 
 vifitor, and the bifhop fpecial vifitor only; but 
 the king's bench was of a different opinion; 
 and, in this refpecT:, their ' judgment feems 
 
 1 St. a G. II. c; 29. 
 
 k Str. 912, 3. Fitzgib. 305 &c. 4 Bro, ca. parl. 41 &c. 
 
 1 Yet it is ftill confidered as unfettled, who is general vifitor 
 of that liberal and illuflrious feminary, ever prolific of eminent 
 genius, worth, and learning. 
 
 I i unimpeached.
 
 482 Of corporations. LECT. 18. 
 
 un impeached. The dechlon therefore of the 
 lords in parliament, confidering the bifliop 
 was prohibited as to forty of the articles, 
 fhews at leaft, that tho the interpretation of 
 the ftatutes is the proper province of a vifitor, 
 yet there may be extraordinary cafes, in which 
 even charges of violations of ftatutes may not 
 be a proper fubjecl: of his jurifdiclion. Fifth- 
 ly, if a m vifitor declines to hear an appeal, or to 
 give any judgment, he may by mandamus be 
 required to exercife thofe powers, with which 
 he is inverted. Laftly, it feems, the viiitor 
 is indeed the proper judge of the private 
 ftatutes and domeftic regulation of colleges; 
 but n where the public laws of the land are 
 difobeyed, as by omitting to take the oaths to 
 the government, the court of king's bench 
 will interfere, notwithftanding the vifitor, 
 and the proper mode is by mandamus. 
 
 2. I come now to fpeak of corporations 
 which are called civil, as oppofed to eleemofy- 
 nary, and /ay, as diftinguifhed from ecclefiaf- 
 tical bodies : and under the prefent clafs the 
 two univerfities muft be ranked. It is true , 
 
 2 Durn. & Eaft 338 & n. 4 Mod. 241. 
 
 Burn, eccl. law, t. colleges. 
 
 archbifliop
 
 LECT. 1 8. Of corporations. 483 
 
 archbifhop Arundel, in the reign of Henry 
 the fourth, obtained a fentence inrolled in 
 parliament, and archbimop Laud, in the time 
 of Charles the nrft had a decree of the privy 
 council, in favour of their metropolitical 
 right of visitation over the univerfities. But 
 as the univerfities are now confidered as civil 
 lay corporations, the foundation of thofe 
 judgments feems to fail. Accordingly p when 
 Dr. Bentley was deprived of his academical 
 degrees, the king's bench, on the ftate of the 
 proceedings, granted a mandamus to re-admit 
 him: and juftice Eyre faid, that the univer- 
 iity, unlefs they had a vifitor, are certainly 
 accountable to this court. Indeed the reafon 
 relied on, at pronouncing final judgment, was, 
 that, there being no averment, that the pro- 
 ceedings were according to the courfe of the 
 civilians, they muft be intended to be agree- 
 able to the rules of the common law, and if 
 fo, this court would interfere (it not appearing 
 that the party could apply elfewhere) and 
 would relieve him againfl the fentence of de- 
 gradation ; which had the radical defect of 
 being pafled without fummoning him to make 
 his defence. This cafe therefore, it was faid, 
 
 9 Str. 557, Lord Raym. 1334. 
 
 I i 2 would
 
 4$ 4 Of corporations. LECT. 18. 
 
 would fall under the rules for the removing 
 of members of other corporations, which can- 
 not be done without fummoning the party, 
 and giving him an opportunity of being heard. 
 But fuppofing the univerfity had fupported 
 their proceedings by the rules of the civil 
 law, and farther that this had been a reafon 
 againft the interpofition of the king's bench, 
 thefe fuppofitions, being true, would not efta- 
 blifh the archiepifcopal claim of vifitation ; 
 neither can they avail to fupport that of the 
 ordinary, unlefs it could be fhewn (in contra- 
 diction to a former pofition) that the uni- 
 verfities* are eleemofynary corporations, and 
 likewife not of royal foundation. However 
 thefe feem, in great meafure, fuperfluous in- 
 quiries. For in a much later q cafe, an ap- 
 plication being made to the king's bench for 
 a mandamus to admit the earl of Hardwicke 
 high fteward of the univerfity of Cambridge, 
 fuggefting that he was duly elected to that 
 office, a learned and refpedted advocate, bro- 
 ther to the earl, in one part of his copious 
 argument, infifts, that the univerfities are lay, 
 not (like colleges) eleemofynary corporations, 
 which puts an end, he faid, to the right of 
 
 * Burr. 1647. 
 
 the
 
 LECT, 18. Of corporations. 485 
 
 the crown to vifit them ; and the court agreed 
 with him, and declared, that whatever might 
 be the notion in former times, it is moft cer- 
 tain now, that the corporations of the uni- 
 verfities are lay corporations ; and that the 
 crown cannot take away from them any rights 
 that have been formerly fubfifting in them, 
 under old charters or prefcriptive ufage. No 
 mention appears of the archbimop's claim * 
 nor was the authority refiding in the king's 
 bench much, if at all, controverted ; and that 
 court granted the mandamus prayed to admit 
 the earl of Hardwicke, thinking itfelf founded 
 in point of jurifdidion, and therefore having 
 entered into and weighed the intrinfic merits 
 gnd juilice of the cafe. 
 
 Other civil lay corporations are moftly in- 
 ftituted for promoting the good government of 
 cities and towns, as mayors, aldermen, bailiffs, 
 commonalty, and the like, or for the encou- 
 ragement of trade and commerce. The for- 
 mer of thefe are what we moft commonly 
 hear of before courts of juftice, in litigations 
 refpecting their corporate capacity. Civil 
 corporations, properly fpeaking, are fubjecl: 
 fo no vifitation. It is faid indeed, that they 
 
 I i 3 owe
 
 486 Of corporations. LECT. 18. 
 
 owe their incorporation to the king, that as 
 founder he is their vifitor, and that the law 
 hath appointed the place, where he is to exer- 
 cife this jurifdiction, namely the court of 
 king's bench. Sir William Blackftone r juftly 
 objects to this mode of confidering the mat- 
 ter, that as the judgments of that court are 
 revifable by the lords in parliament, it wants 
 that definitivenefs of fentcnce which is an ef- 
 fential ingredient in vifitatorial power. Befides, 
 there is furely very little s fimilarity between 
 the domeftic and difcretionary authority of a 
 vifitor, properly fo called, and the judicature 
 exercifed on thefe occafions in the king's 
 bench, which is confined to the ftricl: rules 
 of law, not only in its decifions, but its pro- 
 cefs. 
 
 Before I proceed to fuch rights of corpo- 
 rations as are incidental and tacitly implied, 
 (for it would be vain and fruitlefs to comment 
 upon the grants fpecially contained in parti- 
 cular charters) it may be expedient to recol- 
 lect a principle laid down by the court, in the 
 
 r i Black, comra. 481. 
 
 Sho.ca, parl. 45. 2 Durn, & Eafl 338. 
 
 before-
 
 tECT, 1 8. Of corporations. 487 
 
 before-mentioned cafe * of lord Hardwicke, 
 " that there is great difference between a new 
 charter granted to a new corporation, who 
 muft take it as it is given, and a new charter 
 given to a corporation already in being, and 
 acting either under a former charter, or pre- 
 fcriptive ufage. The latter (a corporation 
 already exifling) are not obliged to accept the 
 new charter In toto y and to receive either all or 
 none of it. They may adt partly under it, and 
 partly under their old charter, or prefcriptjon." 
 Whether u a new charter hath been accepted, 
 is a fad: to be tried by a jury. Such charters 
 have received a benignant interpretation. 
 Thus x a power referved to the crown of amov- 
 ing one or more corporators, in a charter, 
 which at the fame time provided, that the 
 remaining members mould fill up the vacan- 
 cies occaiioned by fuch amotion, mufl not be 
 conftrued to deftroy the whole body at once t 
 and make it impomble to eledl others, 
 
 1 Burr. 1656. 
 
 n See i Durn. &Eaft57j 590. As to the acceptance 
 of J. II.'s proclamation, (ifiued to accomplifh whatever was 
 neceflary for refloring the old corporations, and reviving their 
 franchifes) fee the cafe of Newling againft Francis. 3 Durn. 
 & Eaft. 189199. 
 
 * i Durn, & Eaft. 590. 2 Durn. & Eaft 568. 
 
 Ii4 i. Of
 
 Of corporation*. LECT. 18. 
 
 I. Of the incidental and implied powers 
 fubfifting in this fort of corporations, a prin- 
 cipal one is that y of electing new members 
 in the room of thofe who die, or are removed, 
 or refign. Therefore * if the king creates 
 fuch a corporation, and provides, that, when a 
 vacancy happens, it may be filled up within 
 eight days, there may be an election after that 
 time : a or if he ordain, that the remaining 
 members may appoint a new officer, the 
 choice of the majority fhall be effectual. 
 Here I muft obferve a b material diftinction 
 between the election of members of parlia- 
 ment and others, whofe election muft be pro- 
 ceeded to on a particular day, and that of cor- 
 porators, where the like is not neceflary. In 
 the former cafe there is no way of defeating 
 the election of one candidate, but by voting 
 for another: in the latter, the proportion may 
 be in thefe terms, " whether fuch a perfon be 
 elected alderman," and a negative is a good 
 
 vote. In c elections alfo for members of 
 
 parliament, the candidate, whofe return is 
 litigated, is bound to fupport the right and 
 title of his voters. But as to. corporation 
 
 T Sho. ca. j>arl. 45. * i R. A. 513, 4. * Ibid. 
 
 Burr. 541. b Cowp. 538,9. 
 
 8 99wp. 503 &c. i Durn. & Eaft 4. n. 
 
 offices,
 
 LECT. 18. Of corporations. 489 
 
 offices, fome restrictions of the rule have taken 
 place, in regard to entering into the qualifica- 
 tions of the electors, who voted at the elec^ 
 tion, the validity of which is in difpute. For 
 the perfon elected is at leaft not bound to go 
 into the original qualification of any corpora- 
 tor defaflo, and in pofleffion, who voted for 
 him at his election, efpecially by furprife and 
 without competent notice', 
 
 2. As thefer corporations have a right of 
 electing new members, fo they have the d like 
 incidental power of amotion : which is necef- 
 fary to good order and government. In re- 
 fpect to the j uft and valid caufes of disfranchife-^ 
 ment, it may be remarked c , that if a corpora- 
 tor be convicted of any atrocious crime, or 
 infringes his duty, as fuch, to the direct pre- 
 judice of the community, he may be removed; 
 but contumelious words will not be an available 
 ground for fuch proceeding, tho there be a 
 cuflom to fupport it \ and generally a private 
 and perfonal injury to an 'individual member 
 
 * Burr. 539. Dougl. 149 i6q. 
 
 e u Co. 99. a. Carth. 176. 2 Sal. 426. 2 Lev. 200. 
 Burr. 538. 
 
 Will
 
 490 Of corporations. LECT. 18; 
 
 will not warrant fuch expulfion. It has alfo 
 been f determined, that abfence from four 
 corporation courts holden occafionally, and 
 one upon a ftated day, is not a fufficient caufe 
 of amotion ; neither g is bankruptcy. 
 
 When h it is necefTary to give notice of a 
 corporation meeting, as if it be not holden on 
 the day appointed, every individual member 
 muft be fummoned, or the proceedings will be 
 void. And ' if there be a regular meeting 
 for one purpofe, as the election of a mayor, 
 it cannot accomplidi a different aft, as to elecc 
 an alderman or common councilman. But k 
 if a meeting be regular, a proteft againft it, 
 tho by a majority of the corporators prefent, 
 will not vacate or vitiate the proceedings. If 
 a * charter appoints a certain day for the elec- 
 tion of a mayor, antiently it muft have been, 
 proceeded to at that very time. But now" by 
 ft. n G. I. c. 4. i, the corporation in fuch 
 cafe mall not be difTolved, and is allowed to. 
 
 f Burr. 540, I. Where a general nonrefidence is dated 
 
 as the ground of amotion, it feeras unneceflary to have given 
 notice to come and refide. (Dougl. 158.) 
 
 t Burr. 732. h Str. 1051. Burr. 731. 744, 
 
 i Lord Raym. 1355. k Burr. 1017. 
 
 i 8 Mod. 129. Otherwife the nomination was in the 
 crown. (Burr. 1873.) ',> 
 
 the
 
 IECT. 18. Of corporations. 491 
 
 the day following to make the ele<5tion. If * 
 an officer de fatto perform a corporate or ju- 
 dicial act, as if a mayor feal a bond, or a fherifF 
 pronounce a fentence, their proceedings are 
 valid, tho they are not de jure qualified for 
 their refpedtive fhtions. But n being fworn 
 in and acting do not conftitute an officer de 
 faflo > there muft have been an election ; 
 otherwife he is a mere ufurper. Laftly, of- 
 ficers, who ought to be annually elected, may 
 continue to act after the year is out, till others 
 are chofen in their room. 
 
 Here it muft be noted, that there are two 
 modes in which the merits and validity of cor- 
 porate elections and amotions may be brought 
 to decifion in the king's bench; thefe con- 
 tefts being ufually incited and inflamed by the 
 connexion they have with the return of mem- 
 bers of parliament. He then, who appre- 
 hends he has a right to a franchife in a cor- 
 poration, may apply to the above-mentioned 
 court for a mandamus directed to the proper 
 officer to admit him: if p the return (or an* 
 fwer upon record) made to this firft precept 
 
 Lut. 519. 2 Lev. 242. Str. 1090. Str. 625. 
 ? Str. 559. 
 
 i be
 
 492 Of corporations L E c T . 1 8 . 
 
 be adjudged infufficient, a peremptory man- 
 damus ifliies. By the ft. 9 A. c. 20 % the 
 profecutor of a writ of mandamus may plead 
 pn record to the return made, and put in iflue 
 the facts therein contained, in order to their 
 being afcertained by the verdict of a jury. 
 The other method of trying corporate rights is 
 by what is called " an information in the na- 
 ture of a quo ivarranto," being an accufation 
 calling upon the defendant to mew by what 
 ivarrqnt or authority he claims to exercife a 
 particular office or franchifej which infor-r 
 mation is not to be filed without the leave of 
 the king's bench. In r former times, fuch 
 leave was granted as almoft of courfe. But 
 now the court will confider the circumftances 
 of the cafe, and will not, without good rea- 
 fons, difturb the peace and quiet of any corpo- 
 ration, which the ftatute of George the firft 
 before cited was pafTed to protect. Neither 
 will the court permit fuch information to be 
 filed againft a corporator after an unmolefted 
 pofleffion of twenty years : and there has even 
 appeared an inclination to contract fuch time 
 of limitation. It feems alfo, that after the 
 
 VSee Str. 1053. ' i Durn. & Ball i &c. 
 
 death 
 
 t A
 
 LECT. 1 8. Of corporations* 493 
 
 death of a mayor, or the like, it is not allow- 
 able to prove that he was ineligible, in order 
 to invalidate his acts : but it is fufficient to 
 fhew that he was fuch officer defatto, which 
 may be evinced by the corporation books. 
 To the charge in the information, the defen- 
 dant pleads his title at large upon the record, 
 and the material fads being ufually found by a 
 jury, the legal refult of them is determined 
 by the court. 
 
 3. A third incident, which affects all cor- 
 porations aggregate, is to have a common feat 
 to authenticate their proceedings, and to prove 
 that what is done is the act of the corporate 
 fociety. For * in general a corporation ag- 
 gregate cannot do any act of importance 
 without deed, that is, fome inftrument under 
 feal : tho there are many exceptions to the 
 rule. 
 
 4. It is incident to all bodies politic to fue 
 and be fued, both at law and in equity, by 
 their name of incorporation. But it is mani- 
 fdft, that this muft be reftricted to particular 
 
 I Inft. 94. b. i3th cd. n. 3; 
 
 actions.
 
 494 Of corporations. IECT. 18; 
 
 actions. Thus corporations, as fuch, can 
 neither be plaintiffs nor defendants in actions 
 of aiTault and battery* 
 
 5. All corporations mufl have an exprefs 
 and pofitive ' licence from the king to take 
 in mortmain, to enable them to purchafe and 
 hold any real eftate. Such u corporations, as 
 are not particularly reftrained, may alien both 
 their lands and goods* whatever cenfure fuch 
 conduct may juftly deferve. If they x part 
 with all their poflefTions, it is no diflblution of 
 the corporation. But this power of aliena- 
 tion is far from being univerfal to all bodies 
 politic. Ecclefiaftical and eleemofynary cor- 
 porations are put under coniiderable reftric- 
 tions, even in regard to leafing their lands, to 
 
 * Thefe licences ufually or invariably fpecify the amount in 
 value of the lands conceded to be fo hoMen; which muft be 
 conftrued according to the deereafed value of money. If a 
 farther licence is fought for, it muft pafs the regular offices : 
 and the difcretion of the attorney general, in making his report* 
 will perhaps be in fome meau-re guided by the prefent opulent 
 ftate and numbers of the corporation, and the intended ufe of 
 the augmentation of revenue. 
 
 tt 10 Co. 30. b. i Sid. 162. A mifapplication of the 
 public money may be the fubjed of an application to the 
 court of chancery, but is not a ground for a criminal informa- 
 tion to be granted by the king's bench, (z Durn. & Eaft 
 200.) 
 
 W. Jon. 1 68.
 
 LECT. 1 8. Of corporations. 495 
 
 prevent the iniquitous impoverishment of their 
 fucceflbrs. 
 
 6. Laftly, another incidental and implied 
 right of corporations aggregate, at leaft of the 
 civil kind, is that of making y by-laws, or 
 private ordinances for the due regulation and 
 welfare of the community. Hereupon it has 
 been frequent matter of litigation, whether a 
 by-law was good and effectual, or illegal and 
 void. Trading companies, if they affedl to 
 enact illegal by-laws, are fubject to a penalty, 
 by an * old ad; of parliament, rarely, however, 
 inforced. It is (aid in a a reporter of no great 
 credit, to have been generally afferted from 
 the bench, that every by-law, by which the 
 benefit of the corporation is advanced, is good 
 for that very reafon, fuch common benefit 
 being the true touchftone of all by-laws. If 
 this doctrine could invariably be fupported, 
 (which on the contrary is very liable to ex- 
 ception) ftill it would be proper to feek after 
 more explicit criterion s. In regard then to 
 appointments and elections , b it is a good by- 
 
 rCarth.482. Hob. 211. "* St. 19 H. VII. c. 7. 
 
 *Carth. 482. 
 
 b 2 Lev. 252. Ld. Raym. 496. Burr. 235.
 
 496 Of corporations i, IECT. 18* 
 
 law, which impofes a penalty on fuch mem- 
 bers of a fraternity, as reject a burdenfome 
 office of ufe to the community. A c by-law 
 may alfo reftrain the number of electors ; but 
 not ftrike off an integral part of them ; nei- 
 ther can it narrow the defcription of d per- 
 fons eligible. It cannot, however, reftrain 
 the number of electors, nor difqualify any of 
 them, e as to voting for members of parlia- 
 ment. But as to f corporation offices, a by- 
 law may ordain the whole mode of election, 
 where it is not regulated by charter, and 
 there has been no uniform immemorial ufage^ 
 By-laws may be inforced by moderate pecu- 
 niary penalties. But a g corporation created 
 by letters patent or aft of parliament, cannot 
 make a by-law incurring a forfeiture of cer- 
 tain wares or merchandizes, without an ex- 
 prefs delegation of fuch power. As to by- 
 laws refpecting trade, if they are for the im- 
 provement of a manufacture, if they fix a 
 market for fairly viewing commodities, and 
 tend to avoid public inconveniences and nu- 
 fances, they may be good. But if they cramp 
 
 c Burr. 1833. d 3 Durn. & Eaft 199. * 
 
 4 Inft. 48, 49. f 3 Durn. & Eaft 189199. 
 
 I i Durn. & Eaft 124. 
 
 trade
 
 LECT. iS. Of corporations. 497 
 
 trade in general, they are void. Here I muft 
 mention, h that a by-law to exclude foreigners, 
 or intruding dealers, ftrangers to the town, is 
 good, if it be only to inforce a precedent cuf- 
 toin by penalty. But * without fuch prece- 
 dent cuftom, the by-law is void. It may be 
 faid alfo, in general, that a by-law k to reftrain 
 trade is void, efpecially without a cuflom to 
 fupport it. But if the by-law be only a * re- 
 gulation of trade, it may be valid. Tho a 
 by-law, in reftraint of foreigners exercifing 
 trade, may be good with a precedent cuftom 
 to fupport it, m yet it is void, if the penalty 
 is made recoverable by a ftranger, that is, 
 not a member of the corporation. It muft 
 be made recoverable " by the corporation, or 
 fome perfon for their ufe, as in London, by 
 the chamberlain of that city. However, * ge- 
 neral cuftoms> in aid and fupport of by-laws* 
 may include new things and objects, which 
 have not exifted beyond the time of memory, 
 if they are within the reafon of fuch cuftoms. 
 
 h Burr. 1955. l I Wins. 184,5. 
 
 k Burr. 12. l Burr. 1322. Cowp. 270, 
 
 10 i Wilf. 233 &c. 2 Wilf. 266. 5 Co. 62. b. 
 
 * Otherwife it is like afligning a cboft in aZion. (l Wilf, 
 
 Ld.Raym. 499. 
 
 K k By-law*;
 
 498 Of corporations. LECT. iS. 
 
 By-laws, which are calculated to p prevent 
 nufances and general inconvenience, may be 
 good, from the regard mewn to public advan- 
 ta ;e. But fuch as have a view to q private 
 benefit are void ; for they are in the nature of 
 monopolies. It is not neceflary that a r mem- 
 ber of a corporation mould be particularly 
 apprifed of a by-law, for he is bound to 
 take notice. But generally by-laws s affect- 
 ing ftrangers are of no force. Thus a ' by- 
 Jaw, that all ftrangers coming into the port of 
 London mould employ city porters to carry 
 
 their goods, was determined to be void. 1 
 
 fhall here recite " a rule, founded on a liberal 
 bails of equity, and of as early recognition as 
 the eighth year of Edward the firft, namely, 
 that if the majority of perfons in titled to a right 
 of common, (who are not a corporation, and 
 fo do not indeed fall ftrictly within the gene- 
 
 f Skin. 380. R. A. 364. r Sal. 14?, 
 
 2 Vent. 33, 34- 
 
 * i Sal. 143. They may make a by-law, that none but 
 
 freemen mail be porters : but to confine ftrangers to fuch as 
 are city porters, is unreafonable ; firft, becaufe if the city will 
 appoint no porters, they have no remedy againft the city ; and 
 fecondly, ftrangers cannot know who are city porters, nor com- 
 pel them to ferve them. 
 
 u Mo. 579. 
 
 ral
 
 LECT. 1 8. Of corporations. 499 
 
 ral fubjedl of this difcourfe) agree upon a by- 
 law for flopping a trench, being a nufance to 
 their common, it (hall bind all the common- 
 ers, tho there be no cuflom to fupport it. So 
 a x parim, thp not a corporation, may make 
 by-laws for the better performance of thofe 
 duties, which the law impofes onNihe inhabi- 
 tants. Laftly, it may be remarkedj^n regard 
 to this, as well as other corporate rights, r 
 " that where the power of making by-laws 
 is by charter given to a felect body, they do 
 not reprefent the whole community, and 
 therefore cannot aflume to themfelves what 
 belongs to the body at large. But where the 
 power of making by-laws is in the body at 
 large, they may delegate their right to a fe- 
 lect body, who thus become the reprefentative 
 
 of the whole , community." Where the 
 
 z power of doing corporate a<fts in general is 
 not explicitly delegated to a particular num- 
 ber, the common mode is, for the members 
 tp meet on the charter days, and the major 
 part of thofe prefent to do the a<5t. 
 
 * i Mpd. 194. T Burr. 1837. 
 
 * Covvp. 250, Se fee Cowp. 538. 
 
 K k z The
 
 500 Qf corporations. JLECT. 18, 
 
 The lafl confederation refpedting corpora- 
 tions is their diffolution ; a which may hap- 
 pen by the natural death f all the corpora- 
 tors, and by the voluntary furrender, and 
 involuntary forfeiture, of their franchifes, 
 through a neglect of ufing them at all, or 
 ufing them illegally and unjuftly. If the. 
 judgment in thefe profecutions be for the de- 
 fendants, the form of it is, b " that the liberties 
 be allowed ;" if c otherwife, and the parties 
 have continued poffemon of the franchife by 
 wrong from the beginning, the judgment is, 
 that they be " ottfted" that is, removed - y but if 
 they once had title and lofe it, the judg- 
 ment is, " that the liberty be feifed into the 
 king's hands." The prior judgment of fei- 
 fure is called a judgment f< quoufq" viz. till 
 the court mould farther order : and this will 
 effectually * diflblve the corporation, if the 
 parties dp not come in and avoid it the fame, 
 or at the fartheft, the next, term: and there 
 is no ufe in a final judgment, except to mew 
 that the king will take advantage of the 
 
 Burr. 1 867. * Co. Ent. 535. b, 
 
 e Yel. 192. Co. Ent. t. q uo ivarranto. 
 111567,8. 
 
 forfeit ure t
 
 $. s c T . j 8 . Of corporations. 501 
 
 forfeiture, which he may likewife declare 
 by the grant of a new charter. Judgments 
 againft individual members are ufually call- 
 ed judgments of " oujier," or amotion. Sucr^ 
 * judgment againft individual members, tho 
 they are the whole magiftracy of the city 
 or town, and tho they all die after fuch feclu- 
 fion, and before the grant of a new charter, 
 has been holden not to amount to a complete 
 annihilation, of the corporation. It was af- 
 ferted, in the cafe referred to, r that they were 
 limbs lopped off, but not vital parts j that 
 the s new charter revived the political frame 5 
 and it became, among other qualities, in titled 
 to the credits, and liable to the debts, of the 
 old corporation. But it has been more h re- 
 cently adjudged, that when an integral part is 
 gone, without whofe exiftence the corporate 
 functions cannot be exercifed, and there are no 
 means left, but by the intervention of the 
 royal prerogative, of fupplying that integral 
 part, the body is diflblved as to the gene- 
 ral purpofes of its creation, and the king is 
 completely authorifed to grant a new char- 
 
 Burr. 1866, f Ibid. 1869. 
 
 I Ibid. 1871. * 3 Dura. & Eaft 199 250.
 
 502 Of corporations. LECT. 18. 
 
 ter, reforming the conftitution, as well as 
 renovating the powers, of the revived cor- 
 poration. 
 
 Having now finifhed the laft propofed fub- 
 jecl: of the Firft Part of this courfe of lectures, 
 I (hall in the next le&ure enter on the Second 
 Part, comprifing a view of our Englifh laws 
 as referred to Things, or Property. 
 
 end of the Firft Part. 

 
 OOL OF LAW 
 UNIVERSITY OF CALIFORNIA 
 LOS ANGELES