Chapter I: Front Matter (1)

LECTURES
ON THE
CONSTITUTION AND LAWS
OF
ENGLAND:

WITH A COMMENTARY ON
_MAGNA CHARTA_,

AND ILLUSTRATIONS OF MANY
OF THE
ENGLISH STATUTES.

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

THE SECOND EDITION.

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

BY GILBERT STUART, _LL. D._

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

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

MY LORD,

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

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

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

I am, with the greatest respect,

MY LORD,

Your Lordship’s

Most obedient,

And most humble servant,

GILBERT STUART.

ADVERTISEMENT.

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

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

CONTENTS.

_LECTURE_ I.

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

_LECT._ II.

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

_LECT._ III.

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

_LECT._ IV.

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

_LECT._ V.

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

_LECT._ VI.

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

_LECT._ VII.

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

_LECT._ VIII.

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

_LECT._ IX.

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

_LECT._ X.

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

_LECT._ XI.

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

_LECT._ XII.

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

_LECT._ XIII.

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

_LECT._ XIV.

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

_LECT._ XV.

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

_LECT._ XVI.

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

_LECT._ XVII.

_The consequences and history of estates Tail._

_LECT._ XVIII.

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

_LECT._ XIX.

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

_LECT._ XX.

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

_LECT._ XXI.

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

_LECT._ XXII.

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

_LECT._ XXIII.

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

_LECT._ XXIV.

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

_LECT._ XXV.

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

_LECT._ XXVI.

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

_LECT._ XXVII.

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

_LECT._ XXVIII.

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

_LECT._ XXIX.

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

_LECT._ XXX.

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

_LECT._ XXXI.

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

_LECT._ XXXII.

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

_LECT._ XXXIII.

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

_LECT._ XXXIV.

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

_LECT._ XXXV.

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

_LECT._ XXXVI.

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

_LECT._ XXXVII.

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

_LECT._ XXXVIII.

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

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

_Continuation of the commentary on Magna Charta._

A DISCOURSE CONCERNING THE LAWS AND GOVERNMENT OF ENGLAND.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

_March 1775._

LECTURES ON THE LAWS OF ENGLAND.

LECTURE I.

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

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

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

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

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

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

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