Chapter XIX: Front Matter (19)

[16] The Confessor dying without issue, the competitors for the crown were Edgar Atheling, Harold, and duke William. The first had not capacity to sway the sceptre; and the succession of kings was not yet directed by very regular maxims. Harold was a subject, and in possession of no legal claim. William was related to Edward, and urged the destination of that prince to succeed him. On these grounds he invaded England; and by opposing Harold, he meant to secure what was his right of succession. His victory accordingly gave him the capacity of a successor, and not of a conqueror. That the quarrel was personal with Harold may be even conceived from the circumstance that duke William offered to decide their dispute by single combat. _Hale, hist. of the com. law, ch. v. Cook, argument. antinorm._

With regard to William’s right of succession, the best account appears to be that which is found in Ingulphus, William of Poictiers, William Gemetensis, and Ordericus Vitalis, who were all of them his contemporaries. These authors inform us, that king Edward sent Harold into Normandy to assure duke William of his having destined him to be his successor to the crown of England; a destination which he had before observed to him by Robert Archbishop of Canterbury; and which appears to have been made with the consent of the national council. And of this relation there remains a very curious and decisive confirmation. It is a tapestry found at Bayeux, and supposed to be work of Matilda the wife of duke William, and of the ladies of her court, in which Harold is represented on his embassy. See _a description of this tapestry by Smart Lethieullier, Esq; ap. Du Carrel’s Anglo-Norman antiquities_. It is surprising, when these particulars are considered, that Mr. Hume should have given his sanction to the opinion that William’s right was entirely by war, and that he should have conceived that those who refuse to this prince the title of _Conqueror_ should rest solely or chiefly on the pretence that the word _conqueror_ is in old books and records applied to such as make an acquisition of territory by any means. _Hist. of Eng. vol. 1. p. 200._ It is true, that Sir Henry Spelman and other antiquaries have shown, that _conquestus_ and _conquisitio_ were in the age of duke William synonymous with _acquisitio_; but it is no less true, that the authors who refuse to duke William the title of Conqueror, rest on much superior evidence. It is not with pleasure that I differ from this great authority; but, no man has a title to enquire who will not think for himself; and the most perfect productions of human wit have their errors and their blemishes.

[17] See farther, an Historical Dissertation concerning the antiquity of the English constitution. Part 2.

[18] Ibid.

[19] Ibid.

[20] It is a very curious fact, that even some of the Anglo-Saxon nobles had all the prerogatives of earls-palatine. Alfred, we are told, put to death one of his judges for having passed sentence on a malefactor for an offence which had been committed _where the king’s writ did not pass. Mirroire de Justices, ch._ v. And in Selden we meet with earls who had entirely the civil and criminal jurisdiction in their own territories. _Tit. Hon. part 2. ch._ v. If there were no other proofs than these, they would be sufficient to evince the reality of fiefs among the Anglo-Saxons.

[21] Madox, hist. of Excheq. _Erant in Anglia quodammodo_, says an old writer concerning the age of Stephen, _tot reges vel potius tyranni, quot domini Castellorum. Gul. Neubrigens._

[22] _Civitas London. habeat omnes ANTIQUAS LIBERTATES et LIBERAS CONSUETUDINES SUAS tam per terras quam per aquas. Præterea volumus et concedimus quod OMNES ALIAE CIVITATES et BURGI et VILLAE et PORTUS habeant OMNES LIBERTATES, et LIBERAS CONSUETUDINES SUAS._ _Magna charta ap. Blackstone, Law Tracts, vol. III. p. 21._

[23] They had suffered considerably, even from the time of the Confessor to that of Domesday-book. Authors ought therefore to be cautious in reasoning back from that monument to the Saxon period. It is a pity, that the survey of the kingdom taken by Alfred did not yet remain. The comparison of it with that of William would lead to very curious discoveries.

[24] The first summons of knights extant on record is supposed to be in the 49th of Henry III. But this, though it were true, does not prove that knights were not known till that time. The writ does not say so; nor can it be gathered from it, that _knights of the shire_ were then _newly_ established. If there remained, indeed, an uniform series of records from the earliest times, in which there was no mention of _knights_ till the age of Henry III. there might thence arise a strong argument against their antiquity. But this is not the case; and it happens, that in the 15th year of king John, there is a writ to the sheriff to summon _FOUR knights of the county_; _15. Jo. Rs. rot. claus. pt. 2. m. 7. dorso. 4 discretos milites, de comitatu suo, ad loquendum nobiscum_. There is also similar evidence, that in the 32d and 42d years of Henry III. _knights_ made their appearance in parliament. _Whitelocke, Notes, vol. I. 438. vol. II. 120._ In the close roll, also, of the 38th year of Henry III. there is extant a writ of summons directed to the sheriffs of Bedfordshire and Buckinghamshire, requiring _TWO knights_ to be sent for each of these counties. _Lyttelton, Hist. Henry II. notes to the 2d book, p. 70. 79._ In ancient times, it was usual to summon sometimes _FOUR knights_, sometimes THREE, sometimes TWO, and even sometimes _ONE knight_. But from the reign of Edward III. it has been the constant practice for the sheriff to return _TWO knights_ for each county. _Whitelocke, vol. I. 439._

The first summons directed to the sheriff for the election of _citizens_ and _burgesses_, is supposed to be in the 23d of Edward I. But in the sixth year of king John, says Whitelocke, there is extant on record a writ to the sheriff, which mentions “Bishops, earls, barons, and _all our faithful people in England_; by whose assent, lawes were then made.” _6. Jo. regis, rot. claus. m. 3. dors. et rot. pat. m. 2. Assensu archiepis. &c. et omnium fidelium nostrorum Angliæ. Notes on the king’s writ, vol. II. p. 120._ An ordinance in this year of king John, directed _to all the sheriffs_ in England, is mentioned from the records by Sir Robert Cotton, and has these words: _Provisum est ASSENSU Archiepiscoporum, comitum, baronum, et OMNIUM FIDELIUM NOSTRORUM ANGLIAE._ _Cotton. posth. p. 15._

In the _conventio inter regem Johannem et barones_ the people are stated as parties; a circumstance which would not have happened if they had not been represented. _Hæc est conventio facta inter dominum Johannem regem Angliæ ex una parte, et Robertum filium Walteri Marescallum, &c. ET LIBEROS HOMINES TOTIUS REGNI ex altera parte_. Blackstone’s Edition of the charters, ap. Law Tracts, vol. II. p. 39. 40. And what confirms this notion is, that we find the _mayor of London_ and the _constable of Chester_ in the list of those who were chosen conservators of the public liberties in consequence of the great charter. Other proofs, likeways, of the antiquity of the commons are to be found in the great charters. See Lyttelton, Hist. Henry II. Notes to the 2d book, p. 71.

It is also worthy of notice, that the 25th of Edward I. which confirms the great charter, observes, that it was made by the _common assent of all the realm_: And the 15th of Edward III. observes, that it was made _par le roy, ses piers, et la communalté de la terre_.

Nor must it be omitted, that the 5th of Richard II. has this remarkable passage: _The king doth will and command, and it is assented in the parliament, by the prelates, lords and COMMONS, that all and singular persons and commonalties, which from henceforth shall have the summons of the parliament, shall come from henceforth to the parliaments in the manner as they are bound to do, and have been accustomed within the realm of England OF OLD TIMES. And if any person of the same realm, which from henceforth shall have the said summons (be he archbishop, bishop, abbot, prior, duke, earl, baron, banneret, KNIGHT of the shire, CITIZEN of city, BURGESS of borough, or other singular person, or commonalty) do absent himself, and come not at the said summons (except he may reasonably and honestly excuse him to our lord the king) he shall be amerced, and otherwise punished, according as OF OLD TIMES hath been used to be done within the said realm in the said case. And if any sheriff of the realm be from henceforth negligent in making his returns of writs of the parliament; or that he leave out of the said returns ANY CITIES OR BOROUGH WHICH BE BOUND AND OF OLD TIME WERE WONT TO COME TO THE PARLIAMENT, he shall be amerced, or otherwise punished in the manner as was accustomed to be done in the said case_ in times past. _Stat. 2. cap. 4._

The expression “of old time,” so often used here, must doubtless carry us farther back than the 23d of Edward I. or even the 49th of Henry III. The space of two or even three reigns does not make a period of antiquity. We do not say, that the accession of George I. was in _ancient times_.

I know well, that the expressions _commonalty_, _communitas regni_, _baronagium Angliæ_, _magnates_, _nobiles_, _proceres_, _&c._ have been considered as solely applicable to barons and tenants _in capite_. But one must beware of giving credit to this opinion. The great charter of king John bears to have been made _per regem, barones et liberos homines totius regni_; a certain proof that it was not made by the king and the barons only; yet Henry III. speaking of this parliament, calls it _baronagium Angliæ_. The _magnates_ and _proceres_ are said to have made the statute of Mortmain; but it is well known, that the parliament which gave authority to this act consisted of king, lords and _Commons_. In the 35th of Edward I. the expression _cum comitibus, baronibus, proceribus, nobilibus, ac communitatibus_, evidently refers to KNIGHTS, CITIZENS and BURGESSES: And in the 14th of Edward III. _commonalty_ and _Commons_ are used as synonymous. See farther, _Whitelocke, vol. II. ch. 81_. _Coke, 2nd Inst. 583._ _Petyt, Rights of the Commons._ _Atkyns, on the power and jurisdiction of parliament._

Mr Hume, I am sensible, strenuously asserts the late origin of the Commons; and one would almost imagine, that his history of England had been written to prove it. His reasonings, however, on constitutional points, do not appear to me to be always decisive; and it is with pain I observe the respect which this great man has paid to the opinions of Dr Brady; a writer who is known to have disgraced excellent talents, by pleading the cause of a faction, and giving a varnish to tyranny.

The brevity which was necessary to this tract, has permitted me rather to hint at, than to treat the antiquity of the Commons. In a work which I hope one day to lay before the public, I shall have an opportunity of entering into it at greater length.

[25] Hist. Dissert. concerning the antiq. of the Engl. constitut. part 2.

[26] _Madox, Hist. of the Excheq. Bar. Angl._ The granting of supplies to the sovereign, naturally suggested to the people the petitioning for redress when under the pressure of any grievance; and the crown, where it expected much, would not naturally exercise a rigorous severity.

The term _petitioners_ indeed, has, by some authors, been considered as reproachful to the _Commons_; but how a petition, as the spring of a law, could have meanness in it, is inconceivable. Even in the free age of Charlemagne, this mode of application was employed. _Baluz. capit. reg. Franc. tom. 1._ The behaving with reverence to the sovereign is very different from acting with servility. And as to the petitioning against grievances, it is to be remembered, that respectful requisitions of ancient and constitutional privileges, which had suffered invasion, are not to be considered as mean solicitations for acts of favour.

[27] _Conf. Cart. an. 25. Ed. I._ It is singular, that even after the times of Edward I. some writers will not allow, that the Commons were any essential branch of the legislature; yet the writ of summons expresses in strong terms their right of assent: _Ad audiendum et faciendum et consentiendum_; and a multitude of examples may be produced of their actually consulting and determining about peace and war and other important matters of state.

There is evidence that Edward I. called a parliament, and consulted with the Lords and _Commons_ about the conquest of Wales; and that on receiving information that the French King intended to invade some of his dominions in France, he summoned a parliament _ad tractand. ordinand. et faciend. cum prælatis, proceribus et aliis incolis regni quibuslibet, hujusmodi periculis et excogitatis malis sit objurand_. Inserting in the writ these memorable words, _Lex justissima, provida circumspectione stabilita_: QUOD OMNES TANGIT, AB OMNIBUS APPROBETUR.

Edward II. consulted with his PEOPLE in his first year _pro solemnitate sponsalium et coronationis_; and in his sixth year he consulted them, _super diversis negotiis statum regni et expeditionem GUERRAE SCOTIAE specialiter tangentibus_[A].

Edward III. summoned the peers and _Commons_ in his first year to consult them, Whether they would resolve on peace or war with the Scottish king. In his sixth year, he assembled the lords and _Commons_, and required their advice, Whether he should undertake an expedition to the Holy Land. The lords and _Commons_ consulted accordingly; and while they applauded his religious and princely forwardness to the holy enterprize, advised a delay of it for that season. In his thirteenth year, the parliament assembled _avisamento prælatorum, procerum, necnon COMMUNITATIS_ to advise _de expeditione GUERRAE in partibus transmarinis_; and ordinances were made for provision of ships, arraying of men for the marches, and defence of the isle of Jersey. In his fortieth year, the Pope demanding the tribute of king John, the parliament assembled, where, after consultation apart, the prelates, lords and _Commons_ advise the refusal of it, _although it be by the dint of the sword_.

Richard II. in the first year of his reign, advised with the peers and _Commons_, How he should best resist his enemies? In the second year, he consulted his _people_ how to withstand the Scots; who had combined against him with France. In the sixth year, he consulted the parliament about the defence of the borders; his possessions beyond sea, _Ireland_ and _Gascoyne_, his subjects in _Portugal_, and safe keeping of the seas; and whether he should proceed by treaty or alliance, or the duke of Lancaster by force? The lords approved the duke’s intention for Portugal; and the _Commons_ advised, that Thomas bishop of Norwich, having the Pope’s _croiceris_, should invade France. In his fourteenth year, this prince advised with the lords and _Commons_ for the war with Scotland, and would not, without their counsels, conclude a final peace with France. And the year ensuing the _Commons_ interested the king to use moderation in the law of provisions, and proposed that the duke of Aquitaine should be employed to negotiate the peace with France.

With regard to the power of the _Commons_ as to _judicature_ in the times of which we speak, there are not wanting decisive proofs. In the reign of Edward II. the peers and _Commons_ gave consent and judgment to the revocation and reversement of the sentence of banishment of the two Spencers[B]. In the first year of Edward III. when _Elizabeth_ the widow of _Sir John de Burgo_ complained in parliament, that Hugh Spencer the younger, Robert Baldock and William Cliffe his instruments, had by duress forced her to make a writing to the king, in consequence of which she was despoiled of her inheritance, sentence was given for her by the prelates, lords and _Commons_. In the 4th year of Edward III. it appears by a letter to the pope, that to the sentence given against the earl of Kent, the _Commons_ were parties as well as the peers, for the king directed their proceedings in these words: _Comitibus, magnatibus, baronibus, et aliis de COMMUNITATE dicti regni ad parliamentum illud congregatis injunximus, ut super his discernerent et JUDICARENT quod rationi et justiciæ conveniret_. When in the first year of Richard II. William Weston and John Jennings were arraigned in parliament for surrendering certain forts to the king; the _Commons_ were parties to the sentence against them, as appears from a writing annexed to the record. In the first year of Henry IV. although the _Commons_ refer by protestation, the pronouncing the sentence of deposition against King Richard II. to the lords, yet they were equally interested in it, as is evident from the record; for there were made proctors or commissioners for the whole parliament, one bishop, one earl, one abbot, one baronet, and two knights. “And to infer, says a learned and accurate author[C], that because the lords pronounced the sentence, the point of judgment should be only theirs, were as absurd as to conclude that no authority was left in any other commissioner of _oyer and terminer_ than in the person of that man solely that speaketh the sentence.” In the second year of Henry V. the petition of the Commons imported no less than a _RIGHT to act and assent to all things in parliament_; and the king allowed that they possessed this right.

These examples of the importance of the people are striking; and they are supported by the authority of the parliament-rolls, or by records above exception. The curious reader may see them, and other proofs to the same purpose, in the posthumous pieces of Sir Robert Cotton.

[A] In his history of this prince, Mr Hume has the following
very strange assertion: “The Commons, though now an estate in
parliament, were yet of so little consideration, _that their
assent was never demanded_.” Vol. II. p. 139.

[B] The share the _Commons_ had in this act, Sir Robert Cotton
authenticates from the parliament rolls. _Cottoni posthuma, p.
348._ Yet Mr Hume, in the most positive terms, denies that the
_Commons_ had any concern in it. Vol. 2. p. 140.

[C] Sir Robert Cotton.

[28] _Hale, hist. of the com. law, ch. vii._ It has been sometimes insisted upon, that much improvement was brought to England by the canon and civil laws. I cannot, however, but imagine, that these laws, have, on the whole, been rather attended with disadvantage. For tyrannical maxims do not suit a limited government. They may have assisted, indeed, the invention, and extended the views of some lawyers; but they have filled the heads of more with illiberal prejudices.

[29] The reader, who is desirous of seeing proofs of the consideration of the people during the wars between the Houses of York and Lancaster, may consult Cotton’s abridgment of the records; and Bacon on the laws and government of England. Part II.

[30] In the year 1546, there were 126 boroughs that returned members to parliament; and the greatest number of these were wealthy and populous. _Brown Willis, notit. parliam. vol. I._ In the reign of Edward VI. 23 new boroughs were summoned to send burgesses to parliament. Philip and Mary added 13 more, Elizabeth 30, James the 2 universities and 12 boroughs, Cha. I. 8 boroughs, and Cha. II. the county of Durham and 2 boroughs. _Ellys on temporal liberty._ Anciently the king might incorporate any town, and enable it to send burgesses to parliament; but this privilege remains not at present with the crown. If the king was now to venture on the creation of a parliamentary borough, it would rest with the house of commons whether they would receive the members.

[31] “As for her government, says a great authority, I assure myself I shall not exceed, if I do affirm, that this part of the island never had 45 years of better times; and yet not all through the calmness of the season, but through the wisdom of her regiment.” _Lord Bacon._

[32] “She loved not to be tied, but would be knit unto her people. Of 13 parliaments called during her reign, not one became abortive by unkindness; and yet not any one of them passed without subsidy granted by the people, but one wherein none was desired. And sometimes the aid was so liberal, that she refused the one half, and thanked the people for the remnant; a courtesy that rang loud abroad, to the shame of other princes. She never altered, continued, repealed, nor explained any law, otherwise than by act of parliament, whereof there are multitudes of examples in the statutes of her reign.” _Nat. Bacon, Discourse on the laws and government of England, part 2._

I do not mean to say, that Elizabeth, and the princes who preceded her, never acted against the spirit of our government. Her reign, and those of many of her predecessors, were doubtless stained with bold exertions of authority. But bold exertions of authority must not be interpreted to infer despotism in our government. We must separate the personal qualities of princes, and the principles of the constitution. The government of England, and the administrations of its chief magistrates, are very different things.

[33] _Hume, Hist. of England, vol. V. p. 462._ This historian, the most accomplished, perhaps, who has written in modern times, has attempted to vindicate both James and Charles; but he has done nothing more than to produce evidence to shew, that in some respects they acted from precedents of administration in former princes; and this, if taken even in the fullest extent, is insufficient to justify them. Charles, however, it will be allowed, exceeded every violation of liberty, of which there had been any example; and when he had consented to reduce the exorbitancy of the regal power, his conduct created a suspicion of his sincerity. But on the supposition that he did not advance his authority beyond the practice of former times, he is not therefore to be vindicated. It is no exculpation of a crime in one individual, that it has been committed by others. The advantages of a free government belonged to the people of England; and they were the proper judges when to enforce their privileges against an invader. They might pardon in one sovereign what they would punish in another. They might overlook in Elizabeth what they did not wish to excuse in Charles. The doctrine of resistance is delicate. In a free constitution, like that of which we speak, the prince and the people will often fall into situations where they seem to encroach, or actually do so, on the rights of one another. But it is never on slight grounds that the people will be prevailed upon to take arms against their chief magistrate. After all, had England been an absolute monarchy, Was it thence proper and just that it should remain in that situation? There are rights which it is impossible that men can either lose or forfeit. No authority and no precedent, no usage and no law, can give a sanction to tyranny.

[34] Lord Clarendon applies to him, with great propriety, what was said of Cinna, _ausum eum, quæ nemo auderet bonus; perfecisse, quæ a nullo, nisi fortissimo, perfici possent_.

[35] Bill of rights, toleration act, act of settlement.

[36] L’Esprit des Loix, Liv. xi. ch. 3.

[37] Plut. Vit. Lycurg.

[38] Spencer, Dissert. de ratione Leg. Usuram prohibentis.

[39] Lindenbrogius, codex legum antiquarum.

[40] Conringius de Antiquitatibus Academicis. Bruckerus, Hist. Philos. Giannone’s hist. of Naples, lib. 1. chap. 10. § 1. and 11. lib. 11. chap. 6. § 1.

[41] Præfat. ad Glossar.

[42] P. 55.

[43] Corvini jus feudale.

[44] See Craig, de Feud. lib. 1. dieg. 5. and Selden’s Titles of Honour, part second, chap. 1. § 23. Basnage, Coutume reformée de Normandie, tom. 1. p. 139.

[45] Selden. Ibid. Craig, lib. 1. dieg. 5.

[46] This Emperor, says Lampridius, gave the territories gained on the frontiers, limitaneis ducibus et militibus, ita ut eorum essent si hæredes illorum militarent, nec unquam ad privatos pertinerent; dicens attentius eos militaturos si etiam sua rura defenderent. Addidit sane his et animalia et servos; ut possent colere quod acceperunt, ne per inopiam hominum vel per senectutem possidentium defererentur rura vicina barbariæ, quod turpissimum esse dicebat. See also Molin. in consuet. Paris. tit. 1. de Fiefs, and Loyseau, des Off. lib. 1. chap. 1.

[47] De bell. Gall. lib. 4. chap. 22.

[48] Montesquieu, L’esprit des loix, liv. 30. chap. 2. and 6.

[49] Lib. Feud. 1. tit. 1.

[50] L’esprit des loix, liv. 31. chap. 31.

[51] Tacitus de moribus Germanorum. Cæsar de bell. Gall. lib. 6.

[52] Servis, non in nostrum morem descriptis per familiam ministeriis utantur. Suam quisque sedem, suos penates regit. Frumenti modum dominus, aut pecoris, aut vestis, ut colono injungit; et servus hactenus paret. Tacit. de mor. Germ. cap. 25.

[53] De mor. Germ. cap. 24.

[54] De mor. Germ. cap. 11.

[55] Ibid. cap. 7.

[56] L’esprit des loix, liv. 31.

[57] Mably, Observations sur l’histoire de France, liv. 1. cap. 3.

[58] De mor. Germ. cap. 13. and 14.

[59] L’Esprit des loix, liv. 31.

[60] De mor. Germ. cap. 7. 12. and 14.

[61] Ibid. cap. xi.

[62] Muratori, Antiq. Ital. vol. 4. p. 160. et Seq. Mably, Observations sur l’histoire de France, tom. 2. p. 96. et Seq. Madox, Firma Burgi, cap. 1. sect. 9.

[63] Tacit, de mor. Germ. c. 13. Spelman’s Glossary, voc. Miles.

[64] Tacit, de mor. Germ. cap. 12.

[65] Hi cuique sanctissimi testes, hi maximi laudatores. Tacit. de m. G. c. 7. Consult also c. 5. and c. 18.

[66] It is to be wished, that our ingenious Professor had here entered more at large into the history of property in land. The subject is important and little understood. The conceptions entertained by the antient inhabitants of Germany and Gaul concerning property have been explained and illustrated in a book, intituled, “An Historical Dissertation concerning the Antiquity of the English Constitution.” The author of this treatise seems to be the first who has remarked that land is originally the property of nations, and has attempted to account for the manner in which it comes to descend to individuals. See his Dissert. part 1. sect. 3. See also Professor Millar’s valuable work on the Distinction of Ranks in Society, p. 165. et seq. 2d edition.

[67] Cæsar, de bell. Gall. lib. 4. c. 1. Lib. 6. c. 22. Tacit. de mor. Germ. c. 26.

[68] Du Cange, Glossarium voc. Juramentum. Georgisch, corp. juris Germanici antiqui.

[69] Spelman, Gloss. voc. Lada et Ladare. Struv. Hist. jur. criminal. sect. 9.

[70] L’Esprit des loix, liv. 28. ch. 17.

[71] Georgisch, corp. juris Germanici antiqui, p. 347. and p. 368.

[72] Du Cange, Gloss. voc. Duellum. Spelman, voc. Campus. Selden’s Duello, or Treatise on Single Combat, ch. 5.

[73] Georgisch, corp. juris Germanici antiqui, p. 980, 1063, 1223, 1267, 1270.

[74] Selden, Analecta Anglo-Britannica, lib. 2. cap. 8.

[75] Brady’s Hist. of England, p. 65.

[76] Mr Barrington has remarked, that “the last trial by battle in England was in the time of Charles I. and that it did not end in the actual combat.” Observations on the Statutes, 3d edition, p. 202. The last instance which occurs of the judicial combat in the history of France, was the famous one between M. Jarnac and M. de la Chaistaignerie, A. D. 1547. Dr. Robertson’s Charles V. vol. 1. p. 298.

[77] Tacit. de mor. Germ. cap. 12. and 25.

[78] Lindenbrog. Cod. Leg. Antiq. p. 1404. Tacit. de mor. Germ. c. 21. LL. Wal. by Wotton, p. 192. 194. LL. Anglo-Saxon, ap. Wilkins, p. 18. 20. 41. Hickes. Dissert. Epist. p. 110. Georgisch, corpus jur. Germ. antiq.

[79] Montesquieu on the Rise and Decline of the Roman Empire. Dr. Geddes, in his Tract concerning the Nations which overturned the Empire of the Romans, p. 21.-26.

[80] Selden’s titles of honour, part 1. chap. 5. § 1.

[81] Procop. de bel. Goth. ap. script. Byz. Jornandes, Paulus Warnefridus, Gregory of Tours. Mably, observations sur l’histoire de France, tom. 1. chap. 1.

[82] Giannone’s hist. of Naples, lib. II. cap. 4.

[83] Bouquet, le droit public de France, èclairci par les monuments de l’antiquité, p. 6.-10. Montesquieu, l’Esprit des loix, liv. 30. chap. 6, 7, 8, 9.

[84] Reliq. Spelm. p. 2.-7.

[85] Potgiesser, de stat. servorum, lib. 2. cap. 1. Montesquieu, l’Esprit des loix, liv. 30. chap. 14. Du Cange, voc. Servus.

[86] Spelman reliq. 12, 14, 248. Muratori antiq. Ital. vol. 5. p. 712.

[87] Brussel, usage des fiefs, liv. 2. Selden’s tit. of honour, part 2, cap. 1. § 23. and § 33.

[88] Mably, observations sur l’histoire de France, liv. 1. chap. 5. and 6.

[89] Gregor. Turonen. lib. 2. cap. 27. Usage des fiefs, par Brussel, liv. 2. cap. 6. Dissertation on the antiq. of the English constitution, part 3. § 2.

[90] Lib. feud. 1. tit. 1. Hume appendix, 2. Dalrymple, Essay on feudal property, cap. 5. § 1.

[91] Coke on Littleton, lib. 2. chap. 4.

[92] Montesquieu, l’Esprit des loix. liv. 30. chap. 13. Du Cange, voc. Alod. Schilteri Thesaur. voc. Alod.

[93] Heinnec. Elem. jur. Germ. lib. 3. § 26. Selden’s tit. of hon. part 2. chap. 1. Spelman, voc. Comites.

[94] Ripuar. L. L. tit. de diversis interfectionibus, p. 160, 161. ap. Georgisch, corp. jur. Germ. Du Cange, voc. Faida.

[95] Bacon’s Discourse on the Laws and Government of England, p. 11.-27. Monast. Anglican, passim. Mezeray, abr. chronol. tom. 1. p. 172.

[96] Montesquieu, l’Esprit de Loix, liv. 30. chap. 21. liv. 31. chap. 9. 10. 11.

[97] Lib. 1. Feud. tit. 1. Hanneton, de jur. feud. p. 139. Du Cange, voc. Fideles et Fidelitas.

[98] Mably, Observations sur l’histoire de France, liv. 1. chap. 6. Du Cange voc. Beneficium.

[99] Spelman’s Gloss. voc. Feodiem. Dalrymple on Feudal-Property, chap. 1. Hume, Append. 2.

[100] Du Cange, voc. Investitura. Spelman, voc. Pares Curiæ. Craig de feud. lib. 2. dieg. 2.

[101] Bracton, lib. 2. cap. 17. Spelman, voc. Fidelitas, et Seisina. Fleta, lib. 3. cap. 15.

[102] Spelman, Gloss. p. 266. Feud. lib. 2. tit. 6. Littleton, lib. 2. chap. 2. Basnage, contume reformée de Normandie, tit. Des fiefs et droits Feodaux, art. 107.

[103] Coke on Littleton, book 2. chap. 1. Du Cange, voc. Vassaticum. Wright on tenures, p. 55, 56.

[104] Feud. lib. 2. tit. 23. and 24. Dalrymple on Feud. property, chap. 2. Wright on tenures, p. 72.

[105] Madox, Antiquities of the Exchequer, vol. 1. p. 653. Coke on Littleton, lib. 2. chap. 2.

[106] Du Cange, voc. Auxilium. Madox, Antiq. Excheq. chap. 15.

[107] Feud. lib. 2. tit. 25.

[108] Bracton, lib. 3. p. 130. Spelm. voc. Escheata. Glanville, lib. 7. cap. 17. Dalrymple on feud. property, p. 62. Ed. 1757. Hengham Parva, chap. 6. Coke on Littleton, b. 1. chap. 1.

[109] Craig, de feud. lib. 2. dieg. 207.

[110] Craig, de feud. lib. 1. dieg. 11. and 12.

[111] Ibid.

[112] Ibid.

[113] Reliq. Spelm. p. 3, 7, 33, 43. Gervas. de Tilb. Dialog. de Scaccar. lib. 1. cap. 7. Madox, Antiq. Excheq. vol. 1. p. 272.

[114] Fortescue de Laud. leg. Angl. p. 99. Ed. 1737. Coke on Littleton, b. 2. chap. 7.

[115] Carte, hist. of England, vol. 2. p. 169. The reign of Edward I. in Kennet’s collect. of English historians, p. 197.

[116] Coke on Littleton, lib. 2. chap. 8. Madox, Antiq. Excheq. vol. 1. p. 321, 326.

[117] Madox, hist. of Excheq. vol. 1. p. 51.

[118] Ib. p. 40. 41.

[119] Ib. p. 43.

[120] It may not be improperly remarked in this place, that about the 18th year of Henry II. Geoffrey Martell held in England the office or serjeanty of Pincernaria, or Butlership. See Madox, hist. Excheq. vol. 1. p. 50.

[121] Lib. 2. cap. 9.

[122] Feud. lib. 1. tit. 8.

[123] Brussel, usage des Fiefs, tom. 1. p. 41. Du Cange, voc. Cavena and Canava.

[124] Spelman, and Du Cange, voc. Camera, et voc. Feudum. Craig, de Feud. lib. 1. Dieges. 10.

[125] Du Cange, voc. Soldata, et voc. Feudum. ædificii.

[126] Coke on Littleton, lib. 2. chap. 4.

[127] Du Cange, voc. Gastaldus.

[128] Gibson, Cod. Jur. Eccles. Anglican, tit. 23.

[129] Montesquieu, l’Esprit de Loix, liv. 31. chap. 11. Bacon, hist. and polit. disc. on the laws and government of England, ch. 59. Inett’s hist. of the English Church, vol. 2. ch. 2.

[130] Gibson, Cod. Jur. Eccles. Anglican. tit. 23.

[131] Ibid.

[132] Ibid. and tit. 30.

[133] Gibson, Cod. Jur. Eccles. Anglican, tit. 34.

[134] Gibson, tit. 1. and 2.

[135] Father Paul on beneficiary matters, ch. 2. and ch. 6. Selden’s history of tithes, ch. 4. sect. 1. Spelm. larger work of tithes, ch. 6.

[136] Selden’s hist. of tithes, ch. 6. and 7. Spelm. larger work of tithes, ch. 29.

[137] De non temerand. Eccles. tract. Spelm. p. 3.

[138] Montesquieu, l’Esprit des loix. liv. 31. chap. 12. Selden of tithes, ch. 7. Father Paul of benefices, ch. 11.

[139] Father Paul of benefices, ch. 14.

[140] Giannone’s hist. of Naples, b. 19. chap. 4. § 2.

[141] Selden on tithes, chap. 8. Bacon, hist. and polit. disc. on the Laws and Government of England, chap. 59. L. l. Angl. Sax. ap. Wilkins.

[142] Brady, Appendix to his hist. p. 15. Carte, hist. of England, vol. 1. p. 441.

[143] Selden on tithes, chap. 14.

[144] Carte’s hist. of England, vol. 3. p. 135, 143, 148, 149. Lord Herbert’s life and reign of Henry VIII. p. 186. et seq. ap. Kennet.

[145] Gibson, Cod. Jur. Eccles. Anglican. tit. 35. Hume, vol. 1. p. 51.

[146] Wood, Institute of the Laws of England, fol. 161. et seq.

[147] Madox, Baronia Angl.

[148] 4. Instit. 268. Scroggs of Courts Baron, p. 56.

[149] Coke on Littleton, lib. 2. chap. 12. § 215.

[150] Madox, Antiquities of the Excheq. vol. 1. p. 652.

[151] Coke on Littleton, lib. 2. chap. 12.

[152] Ibid.

[153] Coke, ut supra.

[154] Madox, Antiq. of the Excheq. chap. 13. The Statutes at Marlebridge, ap. Ruffhead, vol. 1. p. 30.

[155] Ruffhead, vol. 1. p. 37.

[156] Glanvil, lib. 9. c. 8. lib. 10. c. 3. lib. 11. c. 4.

[157] Houard, Anciennes loix des François conservées dans les coutumes Angloises, tom. 1. p. 32. et seq. Craig, lib. 1. dieg. 4.

[158] Bracton, lib. 2. c. 36. Hume, append. 2. Du Cange, voc. relevium. Spelman, voc. relevamen. Reliq. Spel. p. 32, 33.

[159] Fleta, lib. 3. c. 77. Feud. lib. 1. tit. 1. Dalrymple on feudal property, ch. 5. Madox, antiq. of the Exchequer, ch. 10. § 4.

[160] Wright on tenures, p. 95. 96.

[161] LL. Hen. 1. c. 1.

[162] Lib. 9. c. 4.

[163] Madox, antiq. of the Exchequer, ch. x.

[164] Ruffhead, vol. 1. p. 2.

[165] Bracton, lib. 2. fol. 86.

[166] Montesquieu, l’Esprit de Loix, liv. 31. chap. 1.

[167] St. Amand on the legislative power of England, p. 27. Montesquieu, l’Esprit des loix, liv. 31. ch. 8. Dr Robertson’s Charles V. vol. 1. p. 222.

[168] Mably, observations sur l’histoire de la France, tom. 1. l. 1. ch. 5. and 6. Montesquieu, l’Esprit des loix, liv. 31. ch. 9.

[169] Spelman on feuds and tenures. Mably, observations sur l’histoire de France, tom. 1. l. 2. ch. 3, 4, 5, 6. Montesquieu, l’Esprit des loix, liv. 31. ch. 28, 29, 30, 31. Houard, anciennes loix des François, liv. 1. ch. 1. Basnage, coutume de Normandie, tom. 1. p. 146.

[170] See the authorities quoted above, and Selden’s titles of honour, part 2. chap. 5.

[171] Coke on Littleton, lib. 2. ch. 1.

[172] Houard, anciennes loix des François, liv. 2. ch. 1. Du Cange, voc. Hominium. Spelman, voc. Homagium.

[173] Wright on tenures, p. 154. et seq. Dalrymple on feudal property, chap. 2. § 2. Millar on the distinction of ranks in society, second edit. p. 215.

[174] Wright on tenures, p. 172.

[175] Coke on Littleton, lib. 3. chap. 13.

[176] Houard, anciennes loix des François, liv. 3. chap. 13. Coke, ut supra.

[177] Wright on tenures, p. 168, 169.

[178] Wright on tenures, p. 186.

[179] Fortescue de laud. leg. Angliæ, cap. 44. Glanvil, lib. 2. chap. 9. Spel. reliq. p. 25, 26. Du Cange, voc. Warda.

[180] Craig, de feud. lib. 2. dieg. 20. Wright on tenures, p. 86. et seqq. Dalrymple on feud. property, chap. 2. § 2.

[181] Ruffhead’s Statutes, p. 2, 3. Basnage, Coutume de Normandie, tit. des gardes.

[182] Coke on Littleton, lib. 2. ch. 5. sect. 123. Houard, anciennes loix des François, liv. 2. ch. 5.

[183] LL. Henry 1. c. 1. Bracton, lib. 2. c. 37. sect. 6. Craig, de feud. lib. 2. Dieges. 21. Du Cange, voc. Maritagium. Glanvil, liv. 7. c. 12.

[184] Wright on tenures, p. 97.

[185] Ruffhead’s statutes, fol. p. 19.

[186] Ibid. p. 6.

[187] Coke’s institutes, part 2. p. 440. Ruffhead, vol. I.

[188] 32 Henry VIII. c. 46. 12 Car. II.

[189] Craig, de feud. lib. 2. Dieges. 13. Dalrymple on feudal property, ch. 5. sect. 1.

[190] Craig de feud. lib. 2. dieges. 14.

[191] Basnage, coutume de Normandie, tit. De partage d’heritage. LL. Hen. 1. 70.

[192] Dalrymple on feud. property, chap. 5. § 1. Hume, appen. 2.

[193] Hale’s hist. of the common law, chap. 5. Bacon’s hist. and polit. discourse on the laws and government of England, part 1. chap. 45, 55, and 56.

[194] Id. chap. 57. See also Tyrrel’s history, and Kennet’s historians.

[195] Glanvil, lib. 7. cap. 3. Craig de feud. lib. 2. dieges. 15. Dalrymple on feudal property, chap. 5. § 2.

[196] Lib. Feud. 2. tit. 12.

[197] Lindenbrogius, cod. leg. antiq. p. 679.

[198] Dalrymple on feud. property, chap. 5.

[199] Craig. de feud. lib. 2. dieges. 14.

[200] Hale, hist. com. law, chap. 9.

[201] Giannone’s hist. of Naples. Selden’s tit. hon. part 2. chap. 9.

[202] Bouquet, le droit public de France, p. 30.-36.—Allodium, proprietas quæ a nullo recognoscitur. Tenere in allodium, id est, in plenam et absolutam proprietatem. Habet integrum ac directum dominium quale à principio de jure gentium fuit distributum et distinctum. Du Moulin, de l’ancienne coûtume de Paris, art. 46.

[203] Dalrymple on feud. property, ch. 3. sect. 1.

[204] Lib. 4. feud. tit. 34. Ruffhead’s statutes, v. 1. p. 122.

[205] Gibson, cod. jur. eccles. Anglican, tit. 28.

[206] Kennet’s collection of historians, vol. 1. p. 116. Carte, hist. of England, vol. 1. p. 469. 555.

[207] Hume, hist. of England, vol. 1.

[208] LL. Hen. 1. cap. 70.

[209] Lib. 7. c. 1.

[210] Glanvil, ut supra. Ruffhead’s statutes, vol. 1. p. 8.

[211] Britton, c. 18. Wright on tenures, p. 163. 164.

[212] Staunford, de prerog. Reg. cap. 7.

[213] An. 27. Hen. VIII. cap. 10. ap. Ruffhead, vol. 2. p. 226.

[214] Madox, hist. of Exchequer, ch. 17. Firma burgi.

[215] Du Cange, et Spelman, voc. Tallagium. Madox, antiq. of the Exchequer, ch. 17.

[216] Hume’s hist. of England, appendix 2. Madox, Firma burgi, ch. 1.

[217] Ruffhead, vol. 1. p. 115.

[218] An. 13. Ed. I. c. 18. apud Ruffhead, append.

[219] An. 23. Henry VIII. cap. 6. ap. Ruffhead, vol. 2. p. 167.

[220] An. 13. Eliz. c. 7. An. 1. James I. cap. 15. 21. James I. cap. 19. 5. George II. c. 30.

[221] Coke on Littleton, book 1. chap. 2. § 13.

[222] Wright on tenures, p. 186. et seq.

[223] Coke’s institutes, part 2. p. 332. Ruffhead, vol. 1. p. 79.

[224] Coke’s institutes, part 2. p. 336.

[225] Hume’s hist. of England, vol. 1. Carte’s hist. 382, 383, 384, 420. Brady’s hist. append.

[226] Selden, tit. hon. part 2. chap. 5. § 3.

[227] Ibid. § 8. and 9.

[228] Coke on Littleton, lib. 3. chap. 13. § 703, 709.

[229] Lib. 3. chap. 13. § 720.

[230] Saintgerman, cap. 50.

[231] Bacon, voc. Fine and Recovery. An. 4. Hen. VII. c. 24. ap. Ruffhead, vol. 2. p. 79.

[232] An. 32. Hen. VIII. c. 36. ap. Ruffhead, vol. 2. p. 296.

[233] Ruffhead, vol. 2. p. 216.

[234] Hottoman. Franco-Gall. Boulainvilliers on the antient parliaments of France. Fortescue de laud. leg. Angl. cap. 34. 36.

[235] Craig, de feud. lib. 1. dieges. 16. Du Cange voc. Dominicum.

[236] Madox, hist. Excheq. Carte’s hist. of England, vol. 1. p. 423.

[237] Carte, ibid. Hume, append. 2. Madox, antiq. of the Excheq. passim.

[238] Firma Burgi, ch. 4. 5. 11.

[239] Bibliotheca politica, Dial. 5. and 10.

[240] Biblioth. polit. 320. 330. 333. 339. 356. 357. 370.

[241] L’Esprit des loix, liv. 11 chap. 6.

[242] Asser, de Gestis Alfredi. Tyrrel, gen. introduct. to the hist. of England.

[243] Lib. 3. cap. 9. fol. 107.

[244] Giannone’s hist. of Naples, lib. 11. chap. 2. Hume’s hist. of England, vol. 2. p. 441.

[245] Dissertatio Seldeni ad Fletam, cap. 7.

[246] Bacon, hist. and polit. discourse on the laws and government of England, part 2. ch. 1. and 2. The reign of Rich. II. in Kennet’s collection of historians.

[247] Hume’s hist. of England, vol. 2.

[248] Camden’s reign of Elizabeth, passim.

[249] Wilson’s life and reign of James I. ap. Kennet.

[250] Bibliotheca politica, dial. 11. Bacon, hist. and political discourse, part 1. chap. 64.

[251] Madox, Antiq. of the Exchequer, vol. 1. p. 197, 198. Baronia Anglica, book 1. chap. 1. Spelman, voc. Baro.

[252] Brady’s introduction, in append. Baronia Anglica, p. 33.

[253] Selden’s titles of honour, part 2. chap. 5. Baronia Anglica, book 1. chap. 2.

[254] Camden, Britan. p. 122.

[255] Selden, tit. Honour, part 2. chap. 5. § 21.

[256] Baronia Anglica, book 2. chap. 1. Selden’s tit. Hon. part 2. chap. 5. § 22.

[257] Coke on Littleton, lib. 2. chap. 8. § 159. Baronia Anglica, p. 164. et seq.

[258] Coke on Littleton, p. 166. St. Amand on the legislative power of England, p. 193.

[259] Selden, tit. Hon. part 2. chap. 5. § 27. and 28.

[260] Camden’s Introd. to his Britan. p. 234. et seq. Baronia Anglica. Selden, tit. hon. part 2. chap. 5. § 29. 30. 31.

[261] Selden, tit. hon. part 2. ch. 1.

[262] Du Bos, hist. critique de L’etablissments de la monarchie Françoise, tom. 3. 497, &c. Mascou’s hist. of the antient Germans, b. 16. § 36.

[263] Spelman’s treatise of Feuds and Tenures.

[264] Selden, tit. hon. part 2. ch. 5.

[265] Selden, tit. hon. part 2. ch. 5. § 10.

[266] Baronia Anglica, p. 150, et seq. Selden, tit. hon. part 2. chap 5. § 8. Bacon, hist. and polit. discourse on the laws of England, part 1. ch. 29.

[267] Coke on Littleton, lib. 2. § 135. Selden, tit. hon. part 2. ch. 5. § 19.

[268] Robertson’s hist. of Scotland, book 1. p. 68. Essays on Brit. Antiq. Ess. 2.

[269] Gibson, cod. jur. eccles. Angl. vol. 1. p. 143.

[270] Privileges of the Baronage, by Selden, ch. 2. p. 1537 of the edition of his works by Wilkins. Coke’s institute, second part, p. 49. and 50.; third part, p. 26.-31.

[271] Spelman, voc. Armiger. Du Cange, voc. Armigiri.

[272] Selden, tit. hon. part 2. ch. 5. § 33. Camden’s introd. to his Britan, 242.

[273] Selden, tit. hon. part 2. ch. 5. § 39.

[274] Spelm. reliq. dissert. de milite. Coke’s inst. part 2. p. 593.

[275] Selden, tit. hon. part 2. ch. 5. § 46. Cotton’s posthumous works.

[276] Madox, Firma Burgi, ch. 1.

[277] Madox, Firma Burgi, ch. 2. Ruffhead, vol. 1. p. 4.

[278] Ruffhead, vol. 1. p. 156.

[279] Gurdon’s history of Parliament. Tyrrel’s introduction to his history. L. L. Anglo Saxon, ap. Wilkins.

[280] History of the common law of England, p. 107.

[281] Biblioth, polit. dial. 6, 7, 8. Hume, vol. 1.

[282] Ruffhead, vol. 1. p. 544.

[283] Spelman, voc. Parlamentum. Hales on Parliaments. Ellys on Temporal Liberty.

[284] Elsringe, on the method of passing bills in Parliament. Gurdon’s hist. of Parliament.

[285] Ruffhead’s preface to the statutes.

[286] Kennet’s English Historians, vol. 2. p. 587, 606. Carte, vol. 2. p. 828. Hume, vol. 2. and 3.

[287] Lord Bacon’s life of Henry VII. ap. Kennet, vol. 2. p. 612.

[288] Irish statutes, vol. 1. p. 23. Coke, 4. instit. chap. 76.

[289] Irish Statutes, p. 48.

[290] Irish Stat. vol. 1. p. 143.

[291] Coke on Littleton, lib. 2. ch. 11. § 172.

[292] Bracton, lib. 4. cap. 28.

[293] Reliq. Spelm. 251. Barington on the statutes 270. et seq. Gurdon’s hist. of Court-Baron and Court-Leet, p. 573.

[294] Coke on Littleton, lib. 2. chap. 11.

[295] Lib. 2. § 194.

[296] Littleton, § 187, 188.

[297] Littleton, § 174.

[298] Coke on Littleton, lib. 2. ch. 11.

[299] Cap. 42.

[300] Wilkins, Leg. Anglosax.

[301] Formulare Anglicanum, tit. Grants and Manumissions of Villeins.

[302] Hickes. dissert. epist. p. 13. et seq. Brady’s hist. p. 82. Fitzherbert’s natura brevium, p. 187, 189, 190. Cowell’s interpreter, voc. copiehould. Coke on Littleton, lib. 2. chap. 11.

[303] Carte, hist. of England, vol. 2. p. 844. 845. 846.

[304] Fitzherbert’s natura brevium, p. 28. Kitchen on Courts.

[305] Coke on Littleton, lib. 1. chap. 8.

[306] Madox, Hist. of the Excheq. vol. 1. p. 295. Cowell’s Interpreter, voc. Demaine. Spel. Gloss. voc. Dominicum.

[307] Bacon’s discourse on the Laws and Government of England, part 1. chap. 16.

[308] Tyrrel’s general Introduction to his Hist. of England. Hume, append. 1.

[309] Spelm. Gloss. voc. Comitatus, hundredus, et trithinga. Tyrrel’s introduction to his Hist. Carte’s Hist. vol. 1. p. 310. Spelm. life of Alfred. Gurdon’s Hist. of Court Baron and Court Leet.

[310] Gurdon’s hist. of Court Baron and Court Leet. Cowel’s Interpreter, voc. Frank-pledge. Bacon’s Discourse on the Laws and Government of England, part. 1. chap. 23.

[311] Bacon, chap. 24.

[312] Bacon’s discourse on the Laws and Government of England, chap. 25, 26.

[313] Dugdale’s Origines Juridiciales, chap. 9, 10, 11, 12, 13, 14, 15.

[314] Madox, Hist. of Exchequer, chap. 1.

[315] Madox, Hist. Excheq. Dalrymple on Feudal Property, ch. 7. § 1.

[316] Dugdale, orig. Jurid. ch. 25. 26. Nicholson, præfat. ad leg. Anglo. Sax. Du Cange, voc. Duellum et Juramentum. Spel. voc. Campus et Judicium Dei. Muratori antiq. Ital. Dissertat. 38.

[317] Stiernhook de jure vetusto Sueonum et Gothorum. c. 4. Dissert. on the antiquity of the English Constitution, part. 4. § 4.

[318] Mirroir des Justices, chap. 2.

[319] Tacit. de Mor. Germ. c. 21. L. L. Wal. p. 192. 194. L. L. Anglo, Sax. ap. Wilkins p. 18. 20. 41. Hickes. dissert. Epist. p. 110. Lindenbrog, p. 1404.

[320] Selden’s tit. of Hon. part 2. ch. 5. Hume, vol. 1.

[321] 1 Inst. 76. Bacon on the Government of Engl. p. 75. Saltern de antiq. leg. Brit. c. 8.

[322] Spelman on Feuds and Tenures. ch. 6.

[323] Taylor and Somner on Gavelkind, and Harris in his Hist. of Kent, p. 457.

[324] Spel. gloss. voc. Burghbote et Brughbote.

[325] Tyrrel’s Introd. p. 120. Spel. Reliq. p. 22.

[326] Dr. Brady’s Glossary to his Tracts, p. 3. Spelman on Feuds and Tenures, p. 17. and 18.

[327] Madox, Hist. of the Exchequer, vol. 1. chap. 10. § 4.

[328] Spelm. on Feuds and Tenures, chap. 21.

[329] Wright on tenures, chap. 2.

[330] Hale’s hist. Com. Law, chap. 5, and 7.

[331] Bacon’s hist. and polit. discourse, chap. 44, 45. &c. Tyrrel’s hist.

[332] LL. Anglo Saxon, ap. Wilkins, p. 228. Wright on tenures, p. 66.

[333] P. 69.

[334] LL. Anglo. Saxon. ap. Wilkins. Wright on tenures, p. 72.

[335] Madox, Baronia Angl. p. 25. Seld. tit. hon. part 2. ch. 5.

[336] Dugdale’s orig. jurid. c. 34. Madox, hist. of Excheq. ch. 2. La coutume de Normandie.

[337] Baron Gilbert’s hist. of Excheq. p. 55. Lord Littleton’s hist. of Henry II. 4to. vol. 1. p. 43. 457. Carte, vol. 1. p. 419. 420.

[338] Madox, Excheq. ch. 1. Bacon on the laws and government of England, part 1. ch. 59. and 66. Brady, Carte and Tyrrel.

[339] Hale, hist. com. law, ch. 7. Bacon, hist. and polit. discourse, p. 129. &c.

[340] Tyrrel’s Introduct. to his hist.

[341] Carte, vol. 1. p. 452, 453.

[342] Kennet’s historians, and Carte.

[343] Hale, hist. com. law, chap. 7. Carte, vol. 1. p. 480. et seq.

[344] Carte; and Kennet’s historians.

[345] Kennet’s historians. Hume, vol. 1. p. 243.

[346] Bacon, hist. and polit. disc. p. 103, &c. Carte, vol. 1. p. 525. et seq.

[347] Kennet’s historians.

[348] Hale, hist. com. law, chap. 7. Carte.

[349] Gervas. de Tilbury, dial. de Scaccario.

[350] Madox, hist. of Excheq. ch. 16.

[351] Lib. 9. c. 4.

[352] Coke on Littleton, fol. 153.

[353] Ibid.

[354] Bracton, lib. 4.

[355] Hale’s hist. Com. Law, chap. 7. Dugdale, orig. jurid. p. 27. Hoveden, p. 590.

[356] Hale’s hist. Com. Law, ch. 7.

[357] Fitzherbert, Nat. brev. p. 41.

[358] Dugdale, orig. jurid. chap. 20. Madox, hist. of Exchequer, chap. 3. § 10. Bracton, lib. 3. chap. 10, 11. M. Paris, an. 1176.

[359] 4. Instit. p. 184, 266. Hale, hist. com. law. chap. 7.

[360] 2. Instit. p. 24. et seq. 4. Instit. p. 162. Selden’s notes on Hengham.

[361] Dugdale, orig. jurid. chap. 17.

[362] 4. Institute, p. 70. et seq.

[363] d’Anver’s abrigement, vol. 2.

[364] 4. Institute, p. 79.

[365] Dugdale, orig. jurid. ch. 16. 4. Inst. p. 80.

[366] 4. Inst. p. 79. 80. 84. 88.

[367] Ibid. p. 225. 113. 80. 76.

[368] 4. Inst. p. 155. 79. 206.

[369] 4 Inst. ch. 8. Bacon, hist. and polit. discourse, part. 2. ch. 18.

[370] Baron Gilbert’s history of the Court of Common Pleas. Madox, hist. Excheq. ch. 2. sect. 9. 2 Institute, p. 53. 407. 4 Institute, ch. 8.

[371] 2 Institute, p. 405.

[372] 2. Institute, p. 21, 22.

[373] Bracton, lib. 1. cap. 1. Fortescue de laud. leg. Angliæ, cap. 34.

[374] Baron Gilbert, Hist. of the court of Com. Pleas. 4. Inst. ch. 10.

[375] 2d. Inst. p. 196. 197. 255. 551.

[376] 4th Inst. ch. xi.

[377] 4th Inst. ch. 13.

[378] Hales of the power and jurisdiction of Parliament. Selden of the Judicature of Parliament. See his works vol. 3. 4. Inst. ch. 1.

[379] Giannone’s hist. of Naples, b. 1. Bower’s hist. of the Popes, vol. 1.

[380] Lord Lyttelton’s hist. of Henry II. b. 3.

[381] Daniel, ap. Kennet. Carte.

[382] Hoveden. edit. Savil. 494-549. Mat. Paris. an. 1164. Lord Lyttelton’s hist. of Henry II. book 3. Brady’s history.

[383] Hume, Carte, Lyttelton, &c.

[384] Hale, hist. com. law, chap. 7.

[385] Mare Claus. 386. Kennet’s historians. Hume. Carte.

[386] Brady, Daniel, Tyrrel, and the general histories of England.

[387] Kennet’s historians. Hume. Carte.

[388] Blackstone’s discourse concerning the hist. of the charters. Gurdon’s hist. of Parliament. Hale, hist. com. law, ch. 7.

[389] Sir Robert Atkins on the dispensing power. Bibliotheca Politica. The general histories of England.

[390] Ruffhead, vol. 1.

[391] Lib. 3. p. 129. 137.

[392] Cap. 5.

[393] Lib. 1. cap. 28.

[394] Cap. 5.

[395] 2 Inst. p. 37.

[396] 2 Inst. 38. 41. Barrington on the Statutes, p. 15. 16.

[397] Mirror, cap. 5. sect. 2. Glanvil, lib. 14. cap. 3. Bracton, lib. 3. p. 121. Fleta, lib. 1. cap. 23.

[398] 2 Inst. p. 43. 45.

[399] 2. Institut. p. 48. 49.

[400] 2. Institut. p. 51.

[401] 2 Inst. p. 51. 55.

[402] Father Paul, of beneficiary matters.

[403] 4 Institut.

[404] 2 Inst. p. 46.

[405] 2 Institut. p. 51.-55.

[406] 2 Inst. p. 47.

[407] 2 Inst. p. 47.

[408] Ibid.

[409] 2 Inst. p. 48.

[410] 2 Inst. p. 48.

[411] 2 Institut. p. 55, 56.

[412] 2 Institut. p. 56.

[413] 2 Institut. p. 57. et seq. Barrington on the statutes. p. 23. 25.

[414] 2 Institut, p. 64.

[415] 2 Inst. p. 65.-67.

[416] 2 Inst. p. 68. Barrington, p. 25.

[417] Ibid. p. 68. 69.

[418] 2 Inst. p. 69. 74.

[419] 2 Inst. p. 74, 75. Barrington, p. 27.

[420] Ibid. p. 76. See also Inst. lib. 2. cap. Escuage. Barrington, p. 28.-31.

[421] 2 Inst. p. 76.-78.

INDEX.

A

Abbots, 202

Abeyance, 136

Actions of debt, 40

⸺ on the case, 40, 310

⸺ personal, 301, 315

⸺ real, 314, 366

⸺ mixed, 315

⸺ possessory and petitory, 292

⸺ to be tried by the judges itinerant, 298

⸺ of waste, 315

⸺ of ejectment, _ibid._

Acts of State. See proclamations

Admiralty jurisdiction, 331

⸺ court of, 362

Advowsons of Bishoprics, 78

⸺ right of nomination, in whom lodged, 79

⸺ presentative, 81

⸺ collative, 82

⸺ donative, _ibid._

⸺ now subsisting in England, 84

⸺ how forfeited, 85

Ætius, 46

Agistment when due to the Clergy, 94

Aids and subsidies, 174

Alias writ of, 357

Alans, 43

Alarick, 44, 45

Alexander III., 322

Alexander Severus, 21

Alfred makes a law for the payment of tithes, 90

⸺ his boast of the liberty he transmitted to England, 180

⸺ divided England into counties, hundreds, and tithings, 198, 245

Alienation, 66

⸺ of lands, 80, 81, 146, 147, 148, 149, 150, 153, 157, 161, 384

⸺ in mortmain, 387

Allodial. See estates allodial

Allodians attach themselves to their neighbouring Lords, 114