Chapter XVIII: Front Matter (18)

The next branch of the statute is, _Nullus liber homo disseizetur de libero tenemento suo, vel libertatibus, vel liberis consuetudinibus suis_. Here it may be thought the word _liber homo_ should be restrained to freeholders, because none others can be disseized; but the following words, _libertatibus_ and _consuetudinibus_, lead, by their import, to a more enlarged construction, and take in all the subjects; so that _disseizetur_ must not be taken in its limited peculiar sense, but rather in general for _deprivetur_. First, then, no freeholder shall be disseized of his freehold, but by verdict of a jury, or by the law of the land, as upon default, not pleading, or being outlawed. It was made to prevent wrongful entries, by such as had right or pretended right to the land, in order to avoid breaches of the peace and bloodshed, which often ensued thereon; but it was not intended to take away the entry of a person who had a right to enter given him by law, for that the law could never construe a _disseizen_, which is a wrongful diverting of the freehold.

To understand this, it is necessary to observe, that a man may have right to the lands, and yet no right to enter upon them; or he may have both; and in the last case it is no disseizen. If A disseizes B, he shall never, by his own wrongful act, deprive B of the right of possession; but he may of his own authority enter at any time, during A’s life, provided he doth it without breach of the peace. But if A is dead, now the lands being thrown by the law upon A’s heir, who had no hand in the wrong, and who is answerable to the Lord Paramount for the services due from the land, B has, by his own negligence, in not entring, or if he could not enter, claiming, during A’s life, lost the right of possession; it is transferred to A’s heir, and B must recover his right by a suit at law.

To see what is meant by _libertatibus_. It comprehendeth, in the first place, the laws of the realm, that every man should freely enjoy such advantages and privileges as these laws give him. Secondly, it signifies the privileges that some of the subjects, whether single persons, or bodies corporate, have above others, by the lawful grant of the king; as the chattels of felons or outlaws, and the lands and privileges of corporations. Hence any grant of the king, by letters patent to any person, which deprives another subject of his natural right and free liberties, is against this branch of _Magna Charta_, as are all monopolies, which were so plentifully and so oppressively granted in the reigns of Elizabeth and James the First, and here in Ireland, in that of Charles the First. We must, however, except such monopolies as are erected by act of parliament, or by the king’s patents, pursuing the directions of an act made for that purpose[406].

Lastly, _Consuetudinibus_ takes in and preserves those local customs in many parts of England, which, though they derogate from the common law, are yet countenanced and acknowledged as part of the general system of law. It also extends to any privileges which a subject claims by prescription, as wreck, waif, stray, and the like[407].

The next clause is, _aut utlagetur_; of which having spoken already, I shall pass on to the fourth, _aut exuletur_. No man shall be banished out of the realm, _nisi per legem terræ_; for the _judicium parium_ is out of this clause, there being no crime of which a man is convicted, whose sentence is banishment. The _transportation_ now commonly used for slighter felonies is not like it; for that is by the free consent of the criminal, who desires to commute a heavier punishment for a slighter. Now _per legem terræ_ a man may be exiled two ways, either by act of parliament, as some wicked minions of our former kings were, and particularly Richard the Second’s corrupt judges into Ireland; or by a man’s abjuring the realm when accused of felony, that is, swearing to depart out of the kingdom, never to return; which latter is long since fallen into disuse. Coke says, that the king cannot send any subject against his will to serve him out of the realm, and the reason is strong; for if he could under pretence of service, he might tear him from his family and country, and transport him to the remotest corner of the earth, there to remain during the whole of his life[408]. But what shall we say as to the military tenants, who by the very tenure of their grants were obliged to serve the king in his wars out of the realm? Certainly, whilst the feudal system retained its pristine vigour, and personal service was required, they were an exception to this rule; but when the commutation of _escuage_ was established, they were considered as under it. Indeed their general readiness to attend their king’s service in person, gave no occasion for this question’s ever being decided. The famous case on this point was in Edward the Third’s reign; that prince had made many grants to Sir Richard Pembrige, some for _servitio impenso_, others for _servitio impendendo_. The king commanded him to serve in Ireland, as his Lord-deputy, which he positively refused to do, looking upon the appointment as no better than an exile; and for this refusal the king seized all that had been granted to him _pro servitio impendendo_; and the question came on in court, whether the seizure was lawful. The judges clearly held the refusal lawful, and therefore would not commit him to prison; but as to the seizure, in consequence of the words _pro servitio impendendo_, without specifying where, they thought it justified. But Coke says, “it seemeth to me that the seizure was unlawful.” For _pro servitio impenso_, and _impendendo_, must be intended of lawful service within the realm. The last time this act was violated was in the reign of the misguided James the First, in the case of the unfortunate Sir Thomas Overbury; who for refusing to go ambassador to Muscovy, was by that prince sent to the Tower, in which place he was afterwards barbarously poisoned; and for his murder the favourite Somerset and his countess were both condemned to die[409].

LECTURE XLII

_Continuation of the commentary on Magna Charta._

The fifth branch of this statute is in very general terms; it is, _aut aliquo modo destruatur_. “_Destruction_” is a word of very general import. Coke, in the first place, explains it by saying, “no man shall be fore-judged of life or limb, or put to the torture or death, without legal trial.” But he shews, afterwards, by his instances, that it is much more extensive: For he observes, that “when _any thing_ is prohibited, _every thing_ is prohibited which necessarily leads to it.” Every thing, therefore, openly and visibly tending to a man’s destruction, either as to life, limb, or the capacity of sustaining life, is hereby directly forbid: So that, _torture_, as it endangers life and limbs, and may prevent a man from earning his livelihood, is, on all these three accounts, unlawful, though common among all other nations of Europe, who have borrowed it from the old Roman law with respect to slaves; a plain indication in what light the introducers of it looked on their subjects. It cannot be said that this hath never been violated in England in arbitrary times; (as what nation is there, whose fundamental laws have not been, on occasion, violated?) yet, in five hundred years, I do not believe the English history can afford ten instances[410].

For the same reason, “judging a man, either in a civil or criminal cause, without calling him to answer and make his defence,” is against this provision. So likewise is “the not producing the witnesses, that the party may have an opportunity to cross-examine them,” I believe, if they may be had. For in the case of death, or absence in a foreign country, that they cannot be produced, there is an exception, for very necessity’s sake; and in that case, the examination of such person, taken before a proper magistrate, is good evidence, tho’ thereby the party loses the cross-examination or information against the murderer. But whenever this happens, the jury should consider that the party has lost the benefit of the cross-examination, and have that in their contemplation, when they are preparing to give their verdict. Directly contrary to this fundamental law, and to common justice, was the trial of Sir Walter Raleigh, conduced by Coke, attorney-general, upon the depositions of people who might be brought face to face. For, notwithstanding the perfect knowledge of that great lawyer in the laws of England, he was a most time-serving minister of the crown. The people of these nations are much indebted to him for his excellent writings on the law, and more for demonstrating the antient right of the people of England to the liberties they claimed: But, if we consider that he was then in disgrace at court, I fear this panegyric must be confined to his behaviour while a judge, which was without reproach; nor did he hesitate to forfeit the favour of the crown, by opposing incroachments on the law of England.

As _tending to destruction_; it is likewise unlawful to amerce or fine a man convicted of a crime, beyond what he has a possibility of paying; for that would tend to perpetual imprisonment, and disabling him from maintaining himself and family. Neither is it lawful, tho’ a man be indicted of treason or felony, for the king to grant, or even to promise, the forfeiture of his lands or goods; for this would be throwing a temptation in the way of others to suborn witnesses to his destruction. These I mention, only as particular instances, to open the import of this law; but the words are, _aliquo modo destruatur_, taking in “every thing that directly tends to destruction.” And it must be observed that these words, _aliquo modo_, are not in any other branch of this act.

I come now to the last clause of this first part, _nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, aut per legem terræ_. I observed before, from the words here being in the first person, that they refer to the suit of the king; and they relate not only, by the latter words, to a legal trial, as to matter and form, but also to a trial in a proper and legal court. The words _nec super eum ibimus_ belong to the King’s Bench, where the suits of the king, the _placita coronæ_, are properly handled, and where the king is always supposed to be present. The words _super cum mittemus_ refer to other courts sitting for the same purposes, as Justice of gaol-delivery, for instance, under the king’s commission. But when those words are coupled with the following ones, _per legem terræ_, they carry a farther import; not only that the courts, trying the king’s causes should proceed according to the law of the land, but that the courts themselves should be such as the _lex terræ_ authorizes; that is, either the common law, from time immemorial, or acts of parliament. So that the king hath no power, of his own authority, to form new criminal courts, as he may civil ones. In some cases, he appoints, indeed, the judges of the courts of common law, and issues commissions, and appoints the commissioners in criminal courts authorized by parliament; but no farther doth his power extend.

To this it may be objected, that the king may create a county palatine, and consequently new criminal courts; but let this be considered: Counties, and duchies, such as we call _palatine_, were, I may say, indeed of the essence of a feudal kingdom, as ours originally was; that is, the king might dismember a part of his kingdom from the immediate subjection to the crown, transfer a subordinate degree of the legal rights to a subject; and when a county of that kind was created, without saying any more, all the courts, not new ones, but the same that were at common law through the whole kingdom, followed as incidents; in the same manner as by erecting a new county, not palatine, it had its county-court, and the sheriff’s tourne. These are not erecting, properly speaking, new courts, so much as bringing the old ones home to the doors of the people of that district.

As I observed at the beginning, this law naturally divides itself into two parts, the first ending at the words _per legem terræ_. Having made such observations as have occurred to me as necessary or material for the understanding thereof, I now proceed to the latter part of this statute, which runs in these words: _Nulli vendemus, nulli negabimus, aut deferemus justitiam, vel rectum_. Some have imagined that, by these words, in the disjunctive, are meant common law and equity; but courts of equity, and proceedings in cases of equity in those courts, were not known in times so early; and the legal signification of _rectum_ in old statutes, and law-books, is either the right that a man hath to a thing, or the law of the land, the means of attaining the possession and enjoyment of that right; and in that sense it is here to be taken; as Coke says, _justice_ is the end, _rectum_ the means, namely, due process of law; neither of which is to be sold, denied, or delayed to the subject. In order to understand this, it will be necessary to point out some of the mischiefs that were before this act, which is the surest way to expound the meaning of any law[411].

For this purpose it is to be remembered, that, in the Saxon times, almost all suits, except between grandees, were expedited in the county-courts. I have observed before, that the Conqueror and his successors discouraged these, and encouraged suits in the _Aula Regis_, or king’s courts; and that the subjects were fond of suing there; but still it was a matter of favour, where the cause properly belonged to the country jurisdictions, and could not be demanded as a right. As a matter of favour, it might be denied by the king, or his chancellor, who was the issuer of the original writs, unless a sum of money was paid, such as they demanded. This was _selling_ justice. Or, if the person to be sued was a favourite of the king, or chancellor, the writ might be denied; this was _denying_ justice. Or, if it was granted, as the proceedings were _ex gratia_, the party might, _ad libitum_, be delayed by the judges, or the cause might be stopped by order of the king, and this was the _deferring_ of justice, meant by this act, which was intended for the giving every subject a right, in all cases, and against all persons, to have justice administered to him in the king’s courts. The chancellor now is hereby obliged instantly to issue all original writs, and the judges of the several courts, where causes depend, to issue the proper judicial ones without fee or reward. This, however, is not so to be understood, as to prohibit the moderate and accustomed fees, which, from time immemorial, have been paid to the officer, for his trouble in making them out, or to the judge, for putting the seal; for these are a part of their livelihood, but only those arbitrary sums which were before taken, and which the state properly calls the _selling_ of justice. So likewise the judges are obliged, in every cause before them, to proceed with expedition, and to suffer no delays, but such as the law allows, and requires, for giving each party an opportunity of defence, and of laying his cause fully before the court.

However, notwithstanding this act, the evil was often repeated, and many suits stopped by the command of the king, and others, as appears by four several acts of parliament, made to enforce and explain this one, the substance of which acts, is summoned by Coke in these words: That “by no means common right, or common law, should be disturbed or delayed; no, though it be by command, and under the great seal, or privy seal, order, writ, letters, message, or commandment whatsoever, either from the king, or any other; and that the justices shall proceed, as if no such writs, letters, order, message, or other commandment, were come to them.” However, this is not to be understood so strictly, but that the king may stop his own civil suit that he hath instituted for his own benefit, as a _capias_ for a fine, because _quisque juri suo renunciare potest_; and this stoppage, in truth, is for the benefit of the subject. It is otherwise in criminal accusations, unless he can shew good cause to the court to put it off. For every man accused has a right to be brought to his trial[412].

Neither are legal protections within the prohibition of this law; these were granted to stop suits against any man that was personally employed in the service of the king, and were founded on this presumption, that such service was for the public benefit, to which all private regards must give way. But then these protections, must be legal ones, such, and none other, as are found in the Register, the antientest book of the law, and not ones newly devised, and for new-fangled causes. These protections, however, were greatly abused in the sequel; favourites, and their dependants, frequently obtaining them, to hinder others of their just rights, under pretence of serving the king; where in truth, there was no such thing. It is therefore recorded, highly to the honour of Elizabeth, that she first discontinued the granting them; and her laudable example has been followed by all her successors. I shall, therefore, not dwell upon them, it being sufficient to have mentioned that such things there are, or at least _were_ in our law.

I hope the prolixity with which I have treated of _this_ chapter of _Magna Charta_, the care I have taken to open the true meaning and force of every word in it, and the many tacit exceptions each part of it is subject to, will be excused, when it is considered, that it not only contains great variety of matter, but is the most important, and of more general consequence and concern, than any other law of the land. It is the guardian of the life, the liberty, the limbs, the livelihood, the possessions, and to the right to justice of every individual, and therefore it concerns every man to know it, and fully to understand it.

The thirtieth chapter is in favour of commerce and merchant strangers. Certain it is, that, in antient times, the kings of Europe, and their military subjects, looked on merchandize as a dishonourable profession; as did the Romans also, in the military ages of that republic. By the old laws of England, no merchants alien were to frequent England, except at the four great fairs; and then were permitted to stay but forty days at a time, that is, an hundred and sixty days in the whole year. But now this act has altered the former law, and is very favourable to persons engaged in commerce, who before were little better than at sufferance. It commands, that all merchants, namely, merchant strangers, whose sovereign is in amity with the king, unless publicly prohibited, that is, says Coke, by Parliament, which is true, as the law hath since stood, (but before, I conceive the king himself had the power to prohibit) shall have safe and sure conduct in seven things. First, to depart out of England without licence, at their will and pleasure. Secondly, to come into England in the same manner. Thirdly, to continue in England without limit of time. Fourthly, to go and travel through any part of England at their pleasure, by land or water. Fifthly, free liberty to buy and sell. Sixthly, without any manner of evil, tolls or taxes; but only, Seventhly, by the old and rightful customs, that is, by such duties as were of old time accustomed to be paid, and are therefore called _Customs_. By this law the king is prohibited from laying any new taxes on the imports or exports of merchant strangers. And as now they gained a general licence to continue in the realm, from hence arose that privilege of merchant strangers to take leases for years, of houses for their dwelling, and warehouses for their goods, which they continued in England; for, regularly, all acquisitions of aliens, in lands or tenements, belong to the king[413].

The second branch of this act is a very equitable one. It concerns merchant enemies, or rather such merchant strangers as came in friends, and afterwards became enemies, by a war’s breaking out between the sovereigns while they are in England. It provides that, on a war’s so breaking out, the persons and effects of such merchants should be seized, and safely kept till it should be known how the English merchants had been treated in the enemy’s country; and that, if they were well treated, these should be so too. This regulation, however, is not put in use; because, by the treaties made between the sovereigns of Europe, it is stipulated, that, on the breaking out of war, the merchants in each others country should have a certain number of days to withdraw themselves and their effects. But if a merchant enemy comes into the country, after war declared, he is to be treated as an enemy; to which, by the old law, now antiquated, there was a very humane exception, that of persons driven into England by stress of weather.

LECTURE XLIII.

_Continuation of the commentary on Magna Charta._

As I have dwelt on the twenty-ninth chapter of _Magna Charta_ so long, and treated of it and every part of it so minutely, I shall, in this lecture, dispatch the remaining part thereof with more expedition. Indeed, of the thirty-first I would have said no more, than merely to observe, that it related to the military tenures now abolished, were it not proper to remark, that it was made to enforce the old feudal law, then the law of England, with respect to landed estates, and to restrain John’s successors from the violences he had introduced in favour of the royal prerogative, to the detriment of the immunities and privileges of the subjects. It has been already observed in these lectures, that by the feudal law, especially as established by the Conqueror in England, the king was very amply provided for with a landed estate, to support his dignity and expences, which was at that time looked on all over Europe as unalienable, except during the life of the king in being; and that the rest of the land was to be the property of the free subjects of the realm, subject to the services imposed, and the other consequences of his seignory as feudal lord.

One of these consequences was the escheat on the failure of heirs, either by there being none, or by the blood being corrupted by the commission of felony, which in law amounted to the same thing; as no son, uncle, nephew, or cousin, could by law claim as heir by descent to a person attainted. For the legal blood, the title to the inheritance, failed in him the last possessor, by his breach of fealty; and every heir lineal or collateral by the law of England being obliged to claim as heir to the person last seized, must be excluded, when the legal blood inheritable failed in the last possessor.

In consequence of these escheats, which often happened in those times, both by corruption of blood, and failure of heirs inheritable, (for, as I have observed before, the granting _feuda antiqua ut nova_ was introduced only by Henry the Second, the father of John, and were not at this time become universal, as they since have been) John introduced this new maxim, that when an earldom or barony fell to the crown by escheat, he held it in the right of his crown, as it was originally derived from thence; and consequently, that the tenants of the former lord, being now, instead of _intermediate_, become _immediate_ tenants of the crown, held of him _in capite_, as it was called; that is, that he, by this escheat, obtained privileges over the tenants of the former lord, which he, the former lord, never had, or could have, but which he claimed as king, _in jure coronæ_. These privileges were many in number; but it will be sufficient to mention only two of them, to shew into how much worse a state the tenants of these escheated lordships were thrown, by being considered as tenants _in capite_.

First, then, the king had from his tenants _in capite_, who came into possession of their lands at full age, instead of _relief_, to which subject lords were intitled, and which was only one fourth of the value of the lands, his _primeir seizin_, which was the whole year’s value. Another grievance was with respect to the wardship of military tenants under age. As to the tenants _in capite_, the king had, by his prerogative, a right not only to the wardship of the person of his minor tenant, and of the lands he held of him _in capite_, but also of all other lands held by knight-service of any other person. For as to socage lands, they were to be in the hands of the next of kin, to whom the inheritance could not descend, who, at the infant’s full age, was to be accountable for the profits: and under the pretence of such tenants, upon the superior lord’s escheat, becoming tenants _in capite_, John claimed and exacted the privilege, to the detriment of the other lords. These and other mischiefs, for others there were, as I observed before, and some of them are mentioned in this statute, are remedied by the general provision which restored the feudal law, that the king should hold all such escheated lordships in the same right they were before held, and have no other privilege, but what the lord by whose escheat they fell to him had: in a word, that he should hold them as lord of that lordship, not as king[414].

The thirty-second chapter relates to the alienation of lands, and gives a qualified power of that kind. By the feudal law, as it was introduced at the Conquest, no lord could alien his seignory without the tenants consent, so neither could the tenant his tenancy, without approbation of the lord. These strict rules were first broken into, in those superstitious times, in favour of churchmen; afterwards, in Richard the First’s time, to raise money for the holy war. Not but the subjects, by their insisting on Edward the Confessor’s laws, of which free alienation was a part, seemed to be fond of it. However, the kings, in all their grants of the old English laws, were careful to preserve the feudal system, in guarding against the alienation of the military tenures. Coke, on commenting in this statute, in order to the better understanding thereof, makes three observations relative to what was the common law before this statute; in the last of which I apprehend he is mistaken, as the law then stood; and that what he asserts therein to have been law did not become (so though often in practice) till after the statute _quia emptores terrarum_, in Edward the First’s reign.

His first observation is, that the tenant might have made a feoffment of the whole, or a part of his tenancy, to hold _of himself_; and no doubt but he might. This was the usual case of subinfudation, by which the lord was in no sort prejudiced; for his seignory remained entire, and he might distrain in any part for his whole service; and in such case, if the under tenant was aggrieved, he was to have his remedy against his immediate landlord the _mesne_, (or middle person), as he is called in our law.

The second observation is, that the tenant could not alien in fee _apart_ of the tenancy, to hold, not of himself, but of the lord, than which nothing could be more reasonable; for it would have been against these old rules also, for a tenant to bring in another, as immediate vassal to the lord, without his the lord’s consent. The tenant would by that means dismember the seignory, which he received, entire, and so deprive the lord of his right of distraining in the whole, and confine him merely to that part remaining in his own hands, as original tenant. For as to the part of the _allienee_, he could not distrain that for his service, there having been no feudal contract between them. Such alienation, therefore, unless when the lord accepted the _allienee_ as a tenant, was a breach of fealty, and against the old feudal principles, and consequently unlawful in England.

The third observation Coke makes on this statute, is, that by the common law the tenant might have made a feoffment of the whole tenancy, to be holden of the lord. For, says he, that was no prejudice at all to the lord[415]. But though this certainly prevailed as common law, long before either Coke or Littleton wrote, I cannot help thinking, both because it was contrary to the old feudal law, and also from the words of the statute _quia emptores terrarum_, that it was first introduced by that act of parliament, the words of which are, _de cætero liceat unicuique libero homini terras suas, seu tenementa sua vel partem, inde vendere_. Here the alienating the whole is declared from henceforth lawful; which words had been nugatory, if this had been common law before.

The chapter of _Magna Charta_ of which we are speaking, was, then, the first positive law that allowed the free alienation of lands. It, in one sense, enlarged, whilst in another it expressly restrained, the power of the tenant; whereas, before, he might alien the whole, or part of his tenancy in fee, but subject to the distress of the lord. Now, by this statute, he was confined to an alienation only for so much, that, out of what remained, the lord might have sufficient distress for his entire service, and the part conveyed was in the _alienee_’s hands, free from any future distress by the lord, or service due to him, fealty only excepted. But it not being specified, how much of the land was a sufficiency, though the half, or what was the half in value, was, in common estimation, reputed such, the tenants, under this pretence, would alien more; which gave occasion to many disputes and suits, and the propensity to general alienations continuing, the law called _quia emptores terrarum_, already mentioned, was at length made, which gave a general licence to alien the whole, or a part at pleasure, to hold of the superior lord; and this put an end, in the law of England, to subinfudation of fee simples. For, since the passing that law, if a man infeoffs another of the whole or part of his land, there is no tenure between the feoffer and feoffee, but the feoffee holds of the feoffer’s lord. But as to lower estates, as fee tail estates for life, years, or at will, subinfudation remains; because the whole estate is not out of the donor, or lessor, but a reversion remains in him; wherefore the tenure, in such case, is of the donor or lessor.

By the statute of _Magna Charta_, in case of alienation of part, to hold of the lord, the residue remaining in the original tenant’s hands, was to answer the services, and the _alienee_ held of the lord, by fealty only. But now by the second chapter of the forementioned statute, the services were to be apportioned, that is, divided in proportion to the value of the lands. If half of the lands, not in _extent_, but _value_, was aliened, the _alienee_ paid half: if one third, the like quantity. I have observed before, on this statute of _quia emptores_, that the king, not being named, was not bound by it. For his tenant _in capite_ to alien without licence was a forfeiture, until, in the reign of Edward the Third, a fine for alienating was substituted in the place of the forfeiture, which fine continued until the restoration, when it was abolished.

The thirty-third chapter provides, that the patrons, that is, the heirs of the founders of abbeys, who, by title under the king’s letters patent, or by tenure, or antient possession, were intitled to the custody of temporalities, during the vacancy of the abbey, should enjoy them free from molestation of any person, or of the king, under the pretence of the prerogative[416].

The thirty-fourth chapter is relative to appeals of murder, brought by private persons. When a man is murdered, not only the king, who is injured by the loss of a subject, may prosecute the offender, but also the party principally injured, that is, the widow of the deceased, if he had one; for she, as having one person with him, stands intitled to this remedy in the first place; but if he left no widow, his heir at law might pursue it. It follows, therefore, that a female heir might, by the common law, have brought an appeal of murder, as the daughter, or the sister, if there had been neither children or brother. But this statute alters the common law, and takes away the appeal, in such case, from every woman, except the widow; so that, at this day, if a man be murdered, leaving no widow, and his next heir be a female, no appeal of murder can be brought. But this disability is personal to women; for though a daughter or sister, living, can bring no appeal, though heir, yet, if they be dead before the murder, leaving a son who is heir, he may bring it[417].

I shall now make a few observations on the right of the widow’s bringing such appeal. First, then, the man slain must be _vir suus_, as the statute expresses it. If, therefore, they had been divorced, the marriage being dissolved, she could not have an appeal. It was otherwise, if they had been only separated _a mensâ & thoro_; for then he still continued her husband. He ceases likewise to be _vir suus_, if she ceases to be his wife, or widow. Therefore, by her marrying again, her appeal is gone, even though the second husband should die within the year, the time limited for bringing it. This is carried so far, that though she brings an appeal while a widow, yet if she marries while it is depending, it shall abate for ever. So if she has obtained judgment of death against the _appellee_, if she marries before execution, she can never have execution against him. In one point the heir is less favoured in appeals than the widow; for if the person murdered had been attainted of high treason, or felony, so that his blood was corrupted, the heir could not have it; for the civil relation between them was extinguished, by the ancestor’s civil death: but the relation of husband and wife depends on the law of God, who has declared the bond indissoluble; therefore no law of man can make him cease to be _vir suus_, and, in such case, she shall have an appeal.

The thirty-fifth chapter treats of the county-courts[418]; but having already, in a former lecture, mentioned what appeared to me sufficient on that subject, I shall proceed to the next, viz. the first law made to prevent alienations in mortmain. Lands given to a corporation, whether spiritual or lay, are said to fall into _mortmain_, that is, into a dead hand, an hand useless and unprofitable to the lord of the fee, from whom he could never receive the fruits. There could be no escheat, either for want of heirs, or felony, because the body never died, nor was capable of committing felony. For the same reason of its never dying, there could be no wardship, or relief; neither could there be marriage. But besides the loss to the lords, the public also suffered; for the military service the lands were subject to, were often withdrawn, or, at least, very insufficiently performed.

These alienations, without the consent of the superior lord, were directly against the feudal polity; yet such was the power of the clergy, who were the principal gainers thereby, in those ages, and so great their influence, that they were not only tolerated, but universally practised, through all Europe; for the founding of a monastery was the usual atonement for the most atrocious crimes. In England, particularly, from the accession of the Conqueror to that of John, containing one hundred and thirty-four years, there were no less than an hundred and four monasteries founded, many of them very richly endowed, besides particular benefactions made to them and the old ones. No wonder, then, it was found necessary, by laws, to put a stop to the growing wealth of the church; but the reign of John, a vassal to the Pope, was not a time to expect a remedy. Accordingly, this act goes no farther than to remedy a collusive practice, by which a vassal, to defraud his lord of the fruits of his seignory, made over his lands to a convent, and took it back to hold from them; and to that end, the statute declares the land, in such case, forfeited to the lord.

I shall say no more on this point, nor of the many cunning practices churchmen, in after times, put in use by the advice of the most learned lawyers they could procure, in order to creep out of this, and every other statute made to restrain them, and for employing which, Coke says, they were much to be commended. But he has forgot to tell us whether he thought those great lawyers deserved commendation, for finding means to elude the most beneficial laws of the land. It will be enough here to say, that, from these devices, arose, in time, the wide-spreading doctrine of _uses and trusts_, which have over-run our whole law, and that the judicial powers of courts of equity have grown with them[419].

The next chapter was made to restrain the intolerable exactions of _escuage_ which John had introduced, and forbids the assessing it, in any other manner than was used in the time of Henry the Second, his father, that is, as I observed under that reign, very moderately; so that every man had his option, whether he would serve in person, or pay it[420].

Next comes the thirty-eighth, which is the conclusion. First, it saves to the subjects all other rights and privileges before had, though not mentioned herein. Coke observes, that there is no saving for the _prerogative of the king_, or his heirs; for that would have rendered all illusory. Secondly, it ordains that the king and his heirs should observe it. Thirdly, that all the subjects should. Fourthly, it recites, that, in consideration hereof, the king received from the subjects a grant of the fifteenth of their moveables. For _Magna Charta_ is not merely a declaration of the old laws, but alters them in many instances; for which favourable alterations the subjects made this grant, and thereby became purchasers of them. Fifthly, it prohibites the king, and his heirs, from doing any thing whereby these liberties might be infringed or weakened; and declares all such doings null and void. Lastly, comes the alteration of twelve bishops, and nineteen abbots, and thirty-one earls and barons[421].

FOOTNOTES

[1] Cæsar de bell. Gal. lib. 4. c. 18. Tacit. vit. Agric. Dion Cassius, vit. Sever.

[2] Bede, lib. 1.

[3] Bede, lib. 3. and 5.

[4] The division of laws, during the Anglo-Saxon period, into West-Saxon-lage, Mercen-lage and Dane-lage, was not of any importance. These differed not essentially from one another. “Our Saxons, says Sir Henry Spelman, though divided into many kingdoms, yet were they all one in effect, in manners, laws and language: So that the breaking of their government into many kingdoms, or the reuniting of their kingdoms into a monarchy, wrought little or no change amongst them touching laws. For, though we talk of the _West-Saxon-law_, the _Mercian-law_ and the _Dane-law_, whereby the west parts of _England_, the middle parts, and those of _Norfolk_, _Suffolk_ and the north, were severally governed; yet held they all an uniformity in substance, differing rather in their _mulcts_ than in their _canea_; that is, in the quantity of fines and amerciaments, than in the course and frame of justice.” _Relig. Spelm._ p. 49.

[5] King Edward’s laws were compiled from those of former princes, and abolished any little peculiarities which distinguished the West-Saxon, Mercian and Danish laws, subjecting the whole kingdom to a common law. His code, accordingly, was termed _lex Angliæ_, or _lex terræ_. No correct copy of it has descended to us. Those regulations, which pass under his name in the editions of the Saxon-laws by Lambard and Wilkins, have evidently some interpolations. Traces of them are to be seen in Hoveden and Knyghton; and remains of them are likeways to be found in the laws of William I. From the time of this Prince to that of King John, they continued, with the addition of some Norman laws and customs, the law of the land. _Præcipimus_, says William, _ut omnes habeant et teneant leges Edwardi regis in omnibus rebus, adauctis his quas constituimus ad utilitatem Anglorum_. _Leg. Guliel. ap._ Wilkins, p. 229. By the influence of the Barons under the last Prince, they were drawn up in the form of _Magna Charta_. For the _great charter_ was not what some partial writers have represented it, a concession of privileges extorted by violence, but a declaration of the principal grounds of the _antient_ and fundamental laws of England, and a correction of the defects of the common law. See _Lord Coke 2 Inst._ and _Lord Lyttelton’s hist. of Henry II. vol. I._ p. 42. 526.

[6] _Wittenagemot_, imports a council of wise men; the Saxon word _witta_ signifying a wise man; and the British word _gemot_ expressing a synod or council. During the Heptarchy, each kingdom had its _Wittenagemot_.

[7] The lay lords were the earls, thanes, and other nobility of the kingdom. The spiritual lords were the bishops and dignitaries of the church, whose possessions were held in Frankalmoigne. After the conquest, they were subjected to military service and held by barony. What may seem extraordinary, Abesses were also in use to sit in the Saxon Wittenagemots. In Wightred’s great council at Beconceld, _anno_ 694. the Abesses sat and deliberated, and several of them subscribed the decrees made in it. _Spel. conc. vol. I._ The abesses appeared also in Ethelwolf’s parliament at Winchester _anno_ 855. _Ingulph, edit. Savil._ 862. And king Edward’s charter to the abbay of Croyland was subscribed by an abbess. Even in the time of Henry III. and in that of Edward I. it appears that four abbesses were summoned to parliament; those of Shaftsbury, Berking, St. Mary of Winchester, and of Wilton. _Tit. hon. p. 729, and Whitelock’s notes upon the king’s writ for choosing members of Parliament, vol. I. p. 479. 480._

[8] The preambles of the Saxon laws express an anxiety to please the people, and allude to their consent in enacting them. The laws of king Ina begin thus: _Ego Ina Dei gratia Occiduorum Saxonum Rex, cum consilio et cum doctrina Cenredæ patris mei, et Heddæ Episcopi mei, et cum omnibus meis senatoribus, et senioribus SAPIENTIBUS POPULI MEI, et multa etiam societate ministrorum Dei, consultabam de salute animæ nostræ, et de fundamento regni nostri, ut justæ leges, et justa statuta per ditionem nostram stabilita et constituta essent, ut nullus senator nec subditus noster post hæc has nostras leges infringeret_. See _LL. Anglo-Saxon, ap. Wilkins, p. 14._ The preambles to the laws of the other princes are nearly similar; and those of Edgar, Ethelred and Canute, may serve as additional examples. 1. Leges Eadgari regis. _Hoc et institutum quod Eadgarus cum SAPIENTUM SUORUM consilio instituit in gloriam Dei, et sibi ipsi in dignitatem regiam, et in utilitatem omni populo suo_. 2. Leges Æthelredi regis. _Hoc est consilium quod Æthelredus rex, et SAPIENTES EJUS consultaverunt ad emendationem pacis omni populo Wodstoci in regione Merciorum, secundum Angliæ leges_. 3. Leges Cnuti regis. _Hoc est consilium quod Cnutus rex, totius Angliæ et Danorum et Norwegorum rex, cum SAPIENTUM SUORUM consilio sancivit, in laudem Dei, et sibi ipsi in ornamentum regium, et ad utilitatem populi; et hoc erat sacris natalibus domini nostri Wintoniæ_. See _Wilkins_, p. 76. 102. 126.

In the 8th law of Edward the Confessor we read, _Hæc concessa sunt a rege, baronibus et POPULO_; and in his 35th law we have the following words: _Hoc enim factum fuit per COMMUNE CONSILIUM et ASSENSUM omnium episcoporum, principum, procerum, comitum, et omnium SAPIENTUM seniorum et POPULORUM totius regni, et per præceptum regis Inæ prædicti._ See Wilkins, p. 198. The laws of Edward are, I know, to be read with distrust; but they are allowed to contain genuine relics of that prince; and, in the present case, there seems no reason for suspicion. Their _appeal_ of consequence to the _assent_ of the _people_ must be allowed to be of authority. For, if such _assent_ was not known and believed in that age, how is it possible that they could appeal to it? The advocates for the late origin of the house of commons will not surely suppose, that the Confessor alluded prophetically to transactions which were not to happen till the reigns of Henry III. and Edward I.

In the _Mirroire de Justices_, it is expressly said, that no king, during the Saxon times, could change his money, nor enhance nor impair it, nor make any money but of silver, without the _assent_ of the _Lords_ and all the COMMONS. Part of this book is conceived by Sir Edward Coke to have been written before the conquest; and additions were made to it by Andrew Horn in the reign of Edward I. from old MSS. the authors of which must have seen ancient rolls and records. Matter, also, from more exceptionable materials, it is to be thought, was superadded by him. The book is notwithstanding of considerable weight and authority. _Mirroire des Justices_, cap. 1. sect. 3. _Atkyns on the power of parliament._

Concerning the high antiquity of the _commons_, Sir Edward Coke is clear and explicit; and he has founded chiefly his opinion on the ancient tract, which bears this title: _Modus quomodo parliamentum regis Angliæ et ANGLORUM SUORUM, tenebatur TEMPORIBUS REGIS EDWARDI, filii REGIS Ethelredi, qui modus recitatus fuit per discretiores regni coram Willielmo duce Normanniæ conquestore et rege Angliæ, ipso conquestore hoc præcipiente, et per ipsum approbatus, et suis temporibus et temporibus successorum suorum regum Angliæ usitatus._ Other authors beside Lord Coke have paid great respect to this treatise. It is to be acknowledged, however, that Mr Selden has demonstrated that this tract could not possibly be of the age of the Confessor, from its employing terms which were not in use till long after. But this does not wholly derogate from its force as to the point in question. For, allowing it to have been written in the reign of Edward III. the period which, with great probability, some writers have assigned to it, it yet proves that the sense of that period was full and strong with regard to the antiquity of the constitution, as consisting of king, lords and _commons_; a circumstance which must have great weight in opposition to those, who would make us believe, that our constitution, as so formed, was unknown till the times of Henry III. and Edward I. _4 Institute_, _p._ 2. 12. _Selden_, _tit. hon._ _p._ 739. 743.

“In the time of king Canutus, says Whitelocke, to a charter then graunted to the monastery of St. Edmond’s Bury (probably in a publique councell) after the subscriptions of the queen and dukes, followes, _I Oslaus, KNIGHT_, _I Thored, KNIGHT_, _I Thurkell, KNIGHT_, and so of others. How many these were, or how for several counties, doth not appear; nor in that parlement of the same king (for so is testified by the discription of it) where it is sayd, that _the king calling all the prælats of his kingdome, and the nobles, and great men to his parlement_, there were present bishops, abbots, dukes, earles, _with many MILITIBUS_, butte the certain number is not extant; nor of those which are mentioned in the parlement of Edward the Confessor, where after the king, queen, archbishops, bishops, abbots, king’s chapleins, Thaines, KNIGHTS are reckoned in that parlement.” _Notes upon the king’s writ_, vol. I. p. 437.

Lambard, Dugdale, and other antiquaries, produce a very strong evidence of the antiquity of the representation of boroughs, by evincing, “That in every quarter of the realm, a great many boroughs do yet send burgesses to parliament, which are nevertheless so ancient, and so long since decayed, and gone to nought, that it cannot be shewed that they have been of any reputation at any time since the Conquest; and much less that they have obtained this privilege by the grant of any king succeeding the same. So that the interest which they have in parliament groweth by an ancient usage before the Conquest, whereof they cannot shew any beginning.” _Lambard Archeion_, _p._ 256. 257. _Coke Epist._ 9. _Rep. Dugdale, Jurid._ _p._ 15.

This matter receives confirmation from what we are told of the _boroughs of ancient demesne_. “These, says Whitelocke, were tenants of the demesne lands of William I. and of Edward the Confessor; who (to the end that they might not be hindered from their business of husbandry of the king’s lands) had many privileges, whereof one was, that they should not be compelled to serve in parliament. Another was, that they should not contribute to the wages of KNIGHTS OF THE SHIRE. Which privileges they still enjoy, and had their beginning in the times of William I. and of the Confessor, whose tenants they first were, as appears in the book of Domesday, and is a strong proof, that KNIGHTS and BURGESSES were then in parliament.” _Notes upon the Kings Writ_, vol. II. p. 139.

See also the 22d note to the present tract.

[9] The law was not then a particular profession.

[10] On the following record in the register of Ely, this notion seems to be founded. _Abbas Wulfricus habuit fratrem, Guthmundum vocabulo; cui filiam præpotentis viri in matrimonium conjungi paraverat; sed quoniam ille XL. hidarum terræ dominium minus obtineret, licet nobilis esset, inter proceres TUNC nuncupari non potuit_. It is somewhat remarkable, that Mr Hume is among those, who, resting on this foundation, would make us conceive, that a person who had 40 hides of land, could, without being noble, give his voice in the Wittenagemot. _Hist. of Eng. vol. I. p. 145._ The passage, however, properly understood, serves to shew, that, in the course of time, the attendance of the Nobles in parliament, having been deemed an expensive service, a law was made to relieve those of them from it who were not possessed of 40 hides of land. The reader may consult _hist. Eliens. c. 36. 40. ap. Gale_, the authority appealed to by Mr Hume.

[11] It is perhaps impossible to ascertain the æra of this invaluable institution. It loses itself in a distant antiquity. The Saxon laws mention it as a known invention. See _LL. Ethelr. c. 4. Senat. Consult. de Mont. Wal. c. 3. ap. Wilkins_. See also _Nicolson, Præfat. ad Leg. Anglo-Sax. Spelm. Gloss. and Coke’s 1st Institute_. Olaus Wormius traces it to a remote age among the Danes; and Stiernhook among the Swedes. _Monument. Dan. lib. 1. c. 10._ _De Jure Sueon. et Goth. vetusto. c. 4._

[12] Annal. lib. 14. c. 33. _Copia negotiatorum et commeatuum maxime celebre._ The city of London in the Danish times was able to pay L. 11,000 as its proportion of L. 70,000, a tax then imposed on the nation. Asser, in the life of Alfred, refers to above 120 cities, boroughs and villages.

[13] Lib. 1. See also Holingh. Chron. p. 192.

[14] Spelman, life of Alfred, b. 2. p. 28. Malmesb. lib. 2. c. 4. A writer in Du Chesne having occasion to mention the first return of duke William to Normandy, after his invasion of England, has the following passage: _Attulit quantum ex ditione trium Galliarum vix colligeretur argentum atque aurum: Chari metalli abundantia multipliciter Gallias terra illa [Anglia] vincit. Gest. Gul. Conques. p. 210._

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