Chapter IX: Front Matter (9)

Both kings and people received the advantages, and would have received more, if this policy had continued. The immediate tenants of the crown being encreased in number, and lessened in wealth, were not able to confederate so easily against the crown; and, sensible of their being weakened, had occasion for the support of the lower rank of the people, whom, consequently, they treated with more gentleness and equality than before. But this statute of entails put a stop to the progress that course of things were in; estates became unalienable, and indivisible. The property of no lord could lessen; and if it happened, as it frequently did, that they acquired, either by descent or marriage, or the purchase of an estate not tied up, a new entail connected it inseparately with the old one; and thus the lords, towards the end of the Plantagenet line, grew up to such a pitch of power, as was dangerous to the constitution, and when they were divided into the factions of the York and Lancaster, deluged the land with blood.

The king saw the mischief betimes, but the mischief was done. The act was passed, and to get it repealed was impossible. They had nothing left, but to find means to elude it by construction of law, wherever they could. The scheme was readily embraced by the judges and lawyers, who had raised great outcries against these fettered inheritances, and were joined by all the trading and industrious people, and even by the younger branches of these great families, whose fathers were thereby disabled to provide for them.

The first means found out was by _collateral warranty_. Before this statute all warranties by an ancestor bound the heir at law, although no land descended from that ancestor, upon the presumption that no man would disinherit his heir, without leaving him a recompence. But this could be no longer the law in general; for, if so, the ancestor in tail might, by his warranty, defeat the tail, contrary to the statute, which says, _The will of the donor shall be observed_. They therefore made now a distinction between a lineal warranty and a _collateral_ one. Lineal warranty is that which is made by tenants in tail; collateral, that which is made by one who is a stranger to the entail. In the first case they held it no bar, unless assets descended; that is, an estate in fee simple, equal in value. But in the latter case, that no assets descended, they held it at bar as at common law[228].

To illustrate this by an example, If lands are given to A. and the heirs male of his body, and A. aliens with warranty, this is lineal warranty, and shall not bind the son; but if B. the brother of A. who has nothing to say to the entail, joins in the alienation with warranty, or releases to the alienee with warranty, or disseizes A, and then aliens with warranty, and dies without issue, so that A’s son is his heir, this warranty is collateral to the entail, and without assets should bind the son of A, as at common law. At first view it may seem surprising how this construction gained ground against the express words of the statute, _Voluntas donatoris de cætero observetur_; for the will of the donor was certainly as much defeated by a collateral, as by a lineal warranty; but the judges took advantage of the preamble of the act, which, reciting the mischief, speaks only of the alienation of the tenant in tail, that is, of lineal warranty. They restrained, therefore, out of disfavour to these fettered estates, the general words in the enacting part, to the particular case mentioned in the preamble, on this ground, that the common law was not to be altered without it appeared undeniable that the legislator intended it; and here, as to collateral alienation, they are silent. This was the first device used to defeat estates tail, namely, by getting a collateral relation, whose heir the issue in tail was to be, to concur in the alienation, and to bind himself and heirs to warranty; which was generally obtained for a small consideration, as such person could never be a gainer by the estate tail, since it could in no case come to him.

When once this rule of collateral warranty barring an estate tail, was settled, attempts were made to prevent its taking effect, and to continue such estate notwithstanding. Jude Richel, in Richard the Second’s time, led the way; he having settled lands on his eldest son in tail; remainder to his second son in tail; adds, that the lands are given on this condition, that, if the eldest son should alien, that instant his estate should cease and determine, and the land remain to the second son and the heirs of his body. Here he imagined he had got clear of collateral warranty, because the first estate was to determine, and the second to commence immediately on the alienation, and before any collateral warranty could descend on the second. But the judges determined this condition to be void; for which Littleton gives three reasons, drawn rather from the art of law, than from the principles of plain reason[229]. The true ground seems to be this:

In every reign, from Edward the First down to Edward the Fourth, bills were brought into parliament to repeal the statute _De Donis_, as Coke informs us, but had constantly miscarried, as the estates of the majority in parliament were entailed. The only relief found out at that time against their mischiefs was this collateral warranty; and if Richel’s conditions were to be adjudged good, all estates tail would have been made with such conditions, and there would have been an end of that method of defeating them. The same was the fate of a similar settlement of Judge Thirning, who took the advice of his cotemporary judges, in wording his condition so as to make it effectual; but their successors were of a different opinion, and rejected it. However, these collateral warranties not being to be got in all cases, the relief was but partial, and extended only to particular cases. And the tenant in tail himself could by no act of his, in concurrence with any other person, except a collateral ancestor of the issue in tail, bar them.

At length the judges found out a device, by a fiction in law, to enable him to bar his issue, and all remainders, and reversions. A. brings his action real against B, tenant in tail, and alledges the lands in tail to be his A’s right and inheritance, when in truth he hath no title thereto; B. comes in, and voucheth C. to warranty, who enters into warranty, and after, when he should defend, makes default, so judgment is given for A. against B. and for B. to recover in value against C. Here, though C. has no land to render in value, the judges have construed B, and all that should come after him, to be barred; because if C. ever after purchased lands, these lands might be recovered from him, by virtue of the former judgment; and so there was a possibility of a recompence. Though this decision at first created great outcries, and even in Henry the Eighth’s reign was but weakly defended in equity and conscience, by the author of _Doctor and Student_, yet the judges, for the public good, constantly adhering to it, and these common recoveries being taken notice of and approved of by subsequent acts of parliament, are at length grown to be common assurances of lands, and, passing in the court of record, are the best securities of estates[230].

The bearing of estates tail, _by fine_ passed in the king’s courts, grew up another way, and is founded on an act of parliament in Henry the Seventh’s reign, and is indeed, properly speaking, a partial repeal of the statute _De Donis_, since it puts it in the tenant in tail’s power to destroy it, by observing certain solemnities. Though common recoveries had been invented some years before, yet as they had not had time to grow up to such a degree of firmness as to be sufficiently depended upon, their legality was still doubted, and it was not certain that future judges would give them the same construction which their predecessors had done. Therefore, that politic prince Henry the Seventh, who saw, in all its lights, that superiority which the preservation of landed property in their families gave to the nobles, a superiority which had cost some of his predecessors their lives and crowns, freed lawyers from the trouble of inventing future devices against entails, by getting the famous act passed in the fourth year of his reign, which made a fine, with proclamations to conclude all persons, strangers as well as privies[231].

It was the purport of, and so it is expressed in the statute _De Donis_, that a fine levied of entailed lands should be _ipso jure_ null, and it is the intent of this act, on the contrary, that a fine, levied with the prescribed solemnity, should be valid to bar the persons therein intended to be barred. There is a clause, indeed, in this act, saving the right and interests of all persons, which accrued after the ingrossing of the fine, they pursuing their rights within a certain time after they accrued. This clause was apparently thrown in to make the act pass, and to deceive the enactors into an opinion, that it would not affect estates tail; and on this clause a doubt occurred in that reign, whether the issue of tenant in tail could be barred by this statute, and that, notwithstanding by the tenor of it, privies were barred. The question was, whether the statute meant privies to the fine, or privies to the estate of the person levying it? The issue were not privies in the first sense, but were in the latter. The judges embraced the opportunity this ambiguity gave them, of defeating entails, and bound the issue by the fine. A statute of the succeeding prince approved of that construction, gave it retrospect, and prevented all ambiguity for the future[232].

Thus were estates tail no longer certain perpetuities, but defeasible upon performing certain requisite solemnities. Still however they continued not to be forfeitable for crimes, which was a point not to be got over without an act of parliament, and there was little likelihood of obtaining such an one; but Henry the Eighth snatched the lucky opportunity his situation gave him, of gaining this important point, in the 26th year of his reign, when he had quarrelled with the Pope, and all hope of accommodation vanished; when a sentence of excommunication was denounced against him, and numbers of his subjects, many of them of great fortunes, bigotedly attached to the old religion, were known to meditate rebellion. The parliament, the majority of which were of the new profession, seeing no other means to preserve the security of the state, and the protestant religion, yielded at length to the passing of an act for that purpose[233].

However, there were not wanting persons after this, willing to create perpetuities, in which they were always disappointed by the decision of the judges. The first device was by giving estates upon condition, that if tenants in tail should levy a fine, or suffer a recovery, the estate should cease, and go over to the next issue intitled. But the judges rejected such condition, for the same reason as in Richel’s case. They adjudged the right of barring by a fine or recovery to be an incident inseparable to a fee tail, and all conditions repugnant thereto idle and void; for how could the law suffer that an estate, by previous act of the donor, should, upon a judgment at law, become vested in any other person than him who recovered? These ingenious conveyancers, finding that the limitation upon breach of the condition came too late, as the estate had already gone in another channel, framed the condition thus; that _if tenant in tail should go about to levy_, &c. _or make any covenant to levy, or hold any communication about levying_, &c. _the estate should then_, &c. But these were all condemned upon the old principle, and still more for their vagueness and uncertainty.

LECTURE XVIII.

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

As, in my former lectures, I drew a general sketch of the nature and form of the governments that prevailed among the northern nations whilst they remained in Germany, and what alterations ensued on their being removed within the limits of the Roman empire, it will be now proper to shew, in as brief a manner as may consist with clearness, the nature and constitution of a feudal monarchy, when estates were become hereditary, the several constituent parts thereof, and what were the chief of the peculiar rights and privileges of each part. This research will be of use, not only to understand our present constitution, which is derived from thence, but to make us admire and esteem it, when we compare it with that which was its original, and observe the many improvements it has undergone. From hence, likewise, may be determined that famous question, whether our kings were originally absolute, and all our privileges only concessions of theirs; or whether the chief of them are not originally inherent rights, and coeval with the monarchy; not, indeed, in all the subjects, for that, in old times, was not the case, but in all that were _freemen_, and, as all are such now, do consequently belong to all.

To begin with the king, the head of the political body. His dignity and power were great, but not absolute and unlimited. Indeed, it was impossible, in the nature of things, even if it had been declared so by law, that it could have continued in that state, when he had no standing force, and the sword was in the hand of the people. And yet it must be owned his dignity was so high, as to give a superficial observer some room, if he is partially inclined, to lean to that opinion. All the lands in his dominions were holden of him. For, by degrees, the _allodia_ had been changed into, and supposed to have been derived from, his original grant, and consequently revertible to him. But then, the land proprietors had (on fulfilling the conditions they were bound to) a secure and permanent interest in their possessions. He could neither take them away at pleasure, nor lay taxes or talliages on them by arbitrary will, which would have been little different. Since, in Magna Charta, we find the people insisting that the king had no right to assess the quantity of escuage, which was a pecuniary commutation for military service, nor to lay talliages on his other subjects, but that both must be done in parliament. He was a necessary party to the making new laws, and to the changing and abrogating old ones; and from him they received their binding force, insomuch that many old laws, tho’ passed in parliament, run in the king’s name only. For, in those days, persons were more attentive to substance than forms; and it was not then even suspected, in any nation of Europe, that any king would arrogate to himself a power so inconsistent with the original freedom of the German nations. Nay, in France, to this day, the king’s edicts are not laws, until registered in parliament, which implies the consent of the people, tho’ that consent is too often extorted by the violent power that monarch has assumed over the persons and liberty of the members of that body[234].

The dignity of the king was supported, in the eyes of the people, not only by the splendor of his royalty, but by the lowly reverence paid him by the greatest of his lords. At solemn feasts they waited on him on the knee, or did other menial offices about his person, as their tenures required, and did their homage and fealty with the same lowly and humiliating circumstances that the meanest of their vassals paid to them. His person likewise was sacred, and guarded by the law, which inflicted the most horrible punishment for attempts against him; neither was he to be resisted, or accountable for any private injury done personally by himself, on any account whatsoever. For the state thought it better to suffer a few personal wrongs to individuals, than to endanger the safety of the whole, by rendering the head insecure.

But the greatest of the kingly power consisted in his being entirely entrusted with the executive part of the government, both at home and abroad. At home justice was administered in his name, and by officers of his appointment. He had, likewise, the disposal of all the great offices of the state, with an exception of such as had been granted by his predecessors in fee, and of all other offices and employments exercised in the kingdom immediately under him. Abroad he made war and peace, treaties, and truces as he pleased. He led his armies in person, or appointed commanders; and exercised, in time of war, that absolute power over his armies that is essential to their preservation and discipline. But how was he enabled to support the expence of the government, or to provide for the defence of the kingdom, or carry on a foreign war; since, if he was not furnished in that respect, these high-sounding prerogatives had been but empty names, and the state might have perished? and if he could at pleasure levy the necessary sums, he being sole judge of the necessity, both as to occasion and quantity, as Charles the First claimed in the case of ship-money, the state of the subject was precarious, and the king would have been as absolute a monarch as the present king of France or Spain[235].

But abundant provision was made on this head, and that without over-burdening the subject, for supporting the ordinary expences of the government. A vast demesne was set apart to the king, amounting, in England, to one thousand four hundred and twenty-two manors, as also many other lands, which had not been erected into manors. Besides these, he had the profits of all his feudal tenures, his worships, marriages, and reliefs; the benefit of escheats, either upon failure of heirs or forfeiture; the goods of felons and traitors; the profits of his courts of justice; besides many other casualties, which amounted to an immense revenue; insomuch, that, we are informed, that William the Conqueror had L. 1061: 10s. a-day, that is, allowing for the comparative value of money, near four millions a-year; so that Fortescue might well say, that, originally, the king of England was the richest king in Europe. Such a sum was not only sufficient for the occasions of peace, but out of it he might spare considerably for the exigencies of war[236].

This revenue, however great, was not sufficient to support a war of any importance and continuance, besides the extraordinary expence of government. It remains, therefore, to see what provision this constitution made, in addition to what the monarch might spare, for the defence of England, as it might be attacked either by land or sea. For the former, every sea-port was, in proportion to its ability, obliged to find, in time of danger, at their own expence, one or more ships properly furnished with men and arms; which, joined to such other ships as the king hired, were, in general, an overmatch for the invaders. But if the enemy had got footing in the country, the defence at land was by the knights or military tenants, who were obliged to serve on horseback in any part of England; and by the socage tenants, or infantry, who, in case of invasion, were likewise obliged to serve, but not out of their own country, unless they themselves pleased, and then they were paid by the king.

With respect to carrying on _offensive_ war into the enemy’s country, the king of England had great advantages over any other feudal monarch. In the other feudal kingdoms the military vassals were not obliged to serve in any offensive war, unless it was just, the determination of which point was in themselves; but William the Conqueror obliged all to whom he gave tenures to serve him _ubicunque_; and though he had not above three hundred, if so many, immediate military tenants under him, yet these were obliged, on all occasions, to furnish sixty thousand knights compleatly equipped, and ready to serve forty days at their own expence. If he wanted their service longer, he was obliged to obtain it on what terms he could. There is, therefore, no reason to wonder that the king of England, though master of so comparatively small a territory, was, in general, an overmatch, in those early times, for the power of France. As for _infantry_ in his foreign wars, he had none obliged to attend him. Those he had were socage tenants, whose services were certain; so that he was obliged to engage, and pay them, as hired soldiers. As the socage tenants in his dominions had a good share of property, and enjoyed it without oppression, it is no wonder the English archers in those days had a gallant spirit, and were as redoubtable as the English infantry is at present.

To support these military tenants, who served after the necessary time, and likewise his infantry (as the surplus of his ordinary revenue would not suffice) he had _customs_ and _talliages_, and _aids_ and _subsidies_ granted by parliament. These customs, or so much paid by merchants on the exportation of goods, were of two kinds; as paid either by _merchant strangers_, or by _merchant denizens_[237].

The customs paid by merchant strangers were not originally settled by act of parliament, but by a compact between the merchant strangers and king Edward the First. In the Saxon times the king had a power of excluding strangers from his kingdom, not merely with an intention of inducing their own people to traffick, but chiefly to keep out the Danes, who were the masters of the sea; lest, under pretence of trade, they might get footing in, and become acquainted with the state of the kingdom. They were, accordingly, admitted by the kings upon such terms as the latter were pleased to impose; but Edward, who had the success and prosperity of his kingdom at heart, came to a perpetual composition with them; gave them several privileges, and they gave to him certain customs in return. What shews they had their origin from consent is, that the king could not raise them without applying to parliament. The customs of natives or denizens were, certainly, first given to the king by parliament; though this has been denied by some, merely because no such act is to be found, as if many of the antient acts had not been lost; but there are acts and charters still extant, which expressly say they were appointed and granted by parliament, without the power of which they could not be either altered or enlarged.

The difference between the customs and the other aids I have mentioned, _viz._ talliages and subsidies, is, that the latter were occasional, granted only on particular emergencies, whereas the _customs_ were for ever. If it be asked how they came to be granted in that manner, we must refer back to the original state of boroughs and their inhabitants, traders, in the feudal law. In France, the Roman towns were taken into protection, and had their antient privileges allowed them; but in the series of wars that happened in that country for ages, every one of them in their turns were stormed, and reduced to vassalage, either to the king or some other great lord; and as, now, these lords had learned that the Roman emperor laid on taxes at his pleasure, it was but natural they should claim the same right, especially over towns they had taken in war. The burgesses, therefore, became in the nature of villains, not indeed of common villains, for that would absolutely have destroyed trade, but with respect to arbitrary taxation, which, however, if the lord was wise, was never exorbitant. In England, I apprehend, they became villains; for the Saxons were a murdering race, and extirpated the old inhabitants. However, wise kings, considering the advantages of commerce, by degrees, bestowed privileges on certain places, in order to render them flourishing and wealthy; and at length, about the time of Magna Charta, or before, when every uncertain service was varying to a certainty, this privilege was obtained for merchant adventurers. But the other burgesses, that did not import or export, and likewise villains, were still talliageable at will. This was restrained by Magna Charta, which declares all talliages unlawful, unless ordained by parliament[238].

To come to the latter head, whether taxes, aids, and subsidies can be assessed by the king, as sole judge of the occasion, and the _quantum_—or whether they must be granted by parliament, was the great and principal contest between the two first princes of the unfortunate house of Stuart and their people, and which, concurring with other causes, cost the last of them his life and throne. To say nothing of the divine hereditary right urged on the king’s behalf, and which, if examined into strictly, no royal family in Europe had less pretensions to claim, both sides referred themselves to the antient constitution for the decision of this point. The king’s friends urged that all lands were holden from him by services, and that this was one of his prerogatives, and a necessary one to the defence of the state. They produced several instances of its having been done, and submitted to, not only in the times of the worst, but of some of the best kings; and as to acts of parliament against it, they were extorted from the monarchs in particular exigencies, and could not bind their successors, as their right was from God.

The advocates of the people, on the other hand, insisted, that, in England, as in all other feudal countries, the right of the king was founded on compact; that William the Conqueror was not master of all the lands in England, nor did he give them on these terms; that he claimed no right but what the Saxon kings had, and this they certainly had not; that he established and confirmed the Saxon laws, except such as were by parliament altered; that he gave away none but the forfeited lands, and gave them on the same terms as they were generally given in feudal countries, where such a power was in those days unknown. They admitted, that, in fact, the kings of England had sometimes exercised this power, and that, on some occasions, the people submitted to it. But they insisted, that most of the kings that did it were oppressors of the worst kind in all respects; that the subjects, even in submitting, insisted on their ancient rights and freedom, and every one of these princes afterwards retracted, and confessed they had done amiss. If one or two of the best and wisest of their kings had practised this, they insisted that their ancestors acquiescence once or twice, in the measures of a prince they had absolute confidence in, and at times when the danger, perhaps, was so imminent as to stare every man in the face, (for it was scarce ever done by a good prince) as when there was not a fleet already assembled in the ports of France to waft over an army, should not be considered as conveying a right to future kings indiscriminately, as a surrender of their important privileges of taxation. They insisted that these good and wise kings had acknowledged the rights of the people; that they excused what they had done, as extorted by urgent necessity, for the preservation of the whole; that, by repeated acts of parliament, they had disavowed this power, and declared such proceedings should never be drawn into precedent. They observed, that there was no occasion for the vast demesne of the king, if he had this extraordinary prerogative to exert whenever he pleased. They denied the king’s divine right to the succession of the crown, and that absolute unlimited authority that was deduced from it. They insisted that he was a king by compact, that his succession depended on that compact, though they allowed that a king intitled by that compact, and acting according to it, has a divine right of government, as every legal and righteous magistrate hath. They inferred, therefore, that he was a limited monarch, and consequently that he and his successors were bound by the legislative, the supreme authority[239].

The advocates of the king treated the original compact as a chimera, and desired them to produce it; which the other side thought an unreasonable demand, as it was, they alledged, transacted when both king and people were utterly illiterate. They thought the utmost proof possible was given by quoting the real acts of authority, which the Saxon kings had exercised; among which this was not to be found; that the Norman kings, though some of them had occasionally practised it, had, in general, both bad and good princes, afterwards disclaimed the right, and that it never had (though perhaps submitted to in one or two instances) been given up by their ancestors, who always, and even to the face of their best princes, insisted that it was an encroachment on those franchises they were intitled to by their birthright.

Such, in general, were the principles on which the arguments were maintained on both sides: for to go into _minutiæ_, would not consist with the design of this undertaking. I apprehend it will be evident from this detail of mine, though I protest I designed to represent both sides fairly, that I am inclined to the people in this question. I own I think that any one that considers impartially the few monuments that remain of the old Saxon times, either in their laws or histories, the constant course since the conquest, and the practice of nations abroad, who had the same feudal policy, must acknowledge, that though this right was claimed and exercised by John, Henry the Third, Edward the First, Second, and Third, Richard the Second, and Henry the Eighth, it was in the event disclaimed by every one of them, by the greatest of our kings, Edward the First and Third, and Henry the Eighth, with such candour and free will, as inforced confidence in them; by the others, in truth, because they could not help it. I hope I shall stand excused, if I add, that the majority of those who engaged in the civil war, either for king Charles, or against him, were of the same opinion. For, had he not given up this point, (and indeed he did it with all the appearances of the greatest sincerity) he would not have got three thousand men to appear for him in the field. But, unfortunately for his family, and us, (for we still feel the effects of it from the popish education his offspring got abroad) his concession came too late. He had lost the confidence of too many of his people, and a party of republicans were formed; all reasonable securities were certainly given; but upon pretence that he could not be depended upon, his enemies prevailed on too many to insist on such conditions, as would have left him but a king in name, and unhinged the whole frame of government. Thus the partizans of absolute monarchy on one side, and the republicans, with a parcel of crafty ambitious men, who for their own private views affected that character, on the other, rented the kingdom between them, and obliged the honest, and the friends to the old constitution, to take side either with one party or other, and they were accordingly, for their moderation and desire of peace, and a legal settlement, equally despised which ever they joined with[240].

I shall make but one observation more; that though it is very false reasoning to argue from events when referred to the decision of God, as to the matter of right in question; I cannot help being struck with observing, that though this has been a question of five hundred years standing in England, the decision of providence hath constantly been in favour of the people. If it has been so in other countries for two hundred or two hundred and fifty years past, which is the utmost, let us investigate the causes of the difference, and act accordingly. The ancients tell us it is impossible that a brave and virtuous nation can ever be slaves, and, on the contrary, that no nation that is cowardly, or generally vitious, can be free. Let us bless God, who hath for so long a time favoured these realms. Let us act towards the family that reigns over us, as becomes free subjects, to the guardians of liberty, and of the natural rights to mankind; but above all, let us train posterity, so as to be deserving of the continuance of these blessings, that Montesquieu’s prophecy[241] may never appear to be justly founded.

“England (says he) in the course of things, _must_ lose her liberties, and then she will be a greater slave than any of her neighbours.”

LECTURE XIX.

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

Having, in the last lecture, begun to draw the outlines of a feudal monarchy, particularly, as it antiently was in England, in order that it may be more easy to understand the nature of our present constitution; and to see how far, and in what particulars, it has deviated from its original, either for the better, or the worse; and having, for that purpose, begun with the regal prerogatives, and particularly with that important one, the raising of money, it will be proper to proceed to the king’s power as to the _laws_, either in the making, repealing, altering, or dispensing with them: for these powers are now exercised by the sovereigns in almost all the monarchies that were antiently feudal, and have been claimed likewise in England. That this power could not originally have been in the king, in any feudal state, is plain from the detail I have given of the old German governments, and of the gradual progress and formation of the European kingdoms from thence; and it would not only be an entertaining, but useful study for gentlemen of fortune, to trace, through the history of every nation, the several steps whereby the liberties of the people have been undermined, until the whole power hath settled in the monarch; but I shall content myself with a few observations on this subject, drawn from the History of England, and such as, in my apprehension, will be sufficient to settle this point as to us.

If the monarchies on the continent were not absolute in this respect, much less could the Saxon kings pretend to such a power, from the very nature of the foundation of their kingdoms. The Franks, the Goths, the Burgundians, and others on the continent, were led to conquest by those who had been previously their kings, and who had a stable and settled authority over them. Very different was the settlement of the Saxons in Britain. Neither Hengist, nor any of their first kings, had been kings in Germany. They were mere leaders of companies of freebooters, who had associated themselves first for plunder, and afterwards to fix themselves in new seats, in imitation of the other German nations. Their leaders, therefore, could have no powers, but what were conferred upon them by their followers; and that _law-making_ was not one of those powers, appears from the frequent meetings of their _witenagemots_, which was the name they gave to their general assemblies, or parliaments; and from all the laws of theirs now extant being made in them. It was the boast of the good and wise king Alfred, that “he left the people of England as free as the internal thoughts of man,” a speech which could never have proceeded from the mouth of one who had the least notion of the almighty power of kings over the laws. His successors were of the same opinion. The law of Edward the Confessor, which was ratified by the Conqueror, says, _Debet rex omnia rite facere in regno, & per judicium procerum regni_, and if _omnia_, surely the making and repealing of laws, the most important of all[242].

Our historians and records from that time down undeniably shew who, in every age, were the legislators, and that the kings alone were not so. The same is expressly delivered by all the old writers on the law, Glanville, Bracton, Britton, Fleta and Fortescue. Nay, some of them, in their zeal for liberty, have gone so far, as to pervert the meaning of the civil law, which, in their time, was in high repute, and to deny the absolute power of legislation to the Roman emperor. The civil law says, _Quod principi placet legis habet vigorem_; but how doth Bracton comment upon it? _Id est non quicquid de voluntate regis temere præsumptum est, sed animo condendi jura, sed quod consilio magistratuum suorum, rege auctoritatem præstante, & habita super hoc deliberatione & tractatu, recte fuerit definitum[243]._

It must, however, be owned that many of our princes were very desirous of assuming this power. In the reign of our Henry the First, a perfect copy of the civil law being discovered at Amalfi, the princes of Europe got an idea of a monarchy more powerful and absolute than either kings or people had for many centuries before any notion of; and they were, in general, desirous enough to stretch, if they could, their limited prerogative to the height of the antient imperial despotism; but to do this by their own authority was impossible. A wiser way was pursued. The excellency of this law was, on every occasion, extolled, not only as providing remedies, and determining, in many cases, where the feudal customs were silent, but on account also of its justice and equity; praises that, it must be owned, do belong to this law where the absolute authority of the prince is not concerned. Foundations for the teaching this law were established in all the universities, and the proficients therein were sure of ample encouragement[244].

The popes, likewise, who wanted to set themselves up in the seat of the old emperors, contributed not a little, in those days of ignorance, to spread it; so that it is not wonderful that it got ground in every country almost on the continent; and being melted into, and conjoined with the feudal, customs, contributed not a little to the destruction of the freedom of the antient constitutions. The same method was attempted in England, but not with the like success. The foundation of professorships, the introducing that law, and its forms, into the courts that were more immediately under the king’s influence, as the courts of the constable, the admiral, and of the universities, and the high employments its professors obtained, sufficiently shew the fondness many of our kings had for it. But the common lawyers and parliament perceived the design, and foresaw the consequences that might follow. Their opposition was steady and successful; and if they did not banish it from the courts wherein it had got footing, at least they so limited and circumscribed it, as to prevent its future progress.

The kings who had any wisdom or prudence, in order to dissemble their real design, gave way to these restrictions, and waited for more favourable opportunities; but the imprudent and haughty Richard the Second avowed himself an open patron to this law. When the duke of Ireland, the archbishop of York, and others his minions, were accused in parliament of high treason, and the evidence being known to be so full as that they must be convicted, he made this weak attempt to screen them. He got his judges, who were his creatures, to declare the proceedings against these persons null and void, as not being regulated according to the forms prescribed by the civil law: but the barons, provoked at such a bare-faced attempt, insisted they were regular, as agreeable to their own customs, and declared positively they would never suffer England to be governed by the Roman civil law, and passed sentence of high treason against the judges[245].

Whence that king’s fondness for this law arose, may be seen from the use he put it to, the protection of the instruments of his tyrannical administration; and from the many wild and unguarded declarations he made, especially that relative to his commons, _that slaves they were, and slaves they should be_, and to his parliament, _that he would not at their request discharge the meanest scullion in his kitchen_. But tho’ this prince was pleased to say, that _the laws were in his breath, and that he could make and unmake them at his pleasure_, he did not think the time was come to put that vaunt in execution. He took, therefore, another way of usurping the legislative power. Having gained over a majority of the returning officers, and either intimidated or gained over the most powerful of the nobility, he called the famous parliament at Shrewsbury, after having nominated to the returning officers whom they should return; and, as he expected, this parliament, if so it may be called, was complaisant enough to compliment the king with his heart’s desire. The former sentence against the judges was reversed, and consequently the civil law set up as the standard in trials of treason. And they indirectly transferred the whole legislative power to the sovereign in the following manner.

As there had been many petitions left unanswered, and many motions undecided, they gave the power of deciding these, or other matters that might arise before the next parliament, to the king, twelve peers, and six commoners. For this committee, they chose such persons, the majority of whom were at the devotion of the king, and gave him and the majority power to fill up vacancies; thereby rendering the calling any future parliament absolutely unnecessary. Thus was the constitution subverted, and in its stead set up an _oligarchy_ in appearance, but in truth an absolute monarchy. But as wisely and happily as Richard thought he had conduced this affair, by which he supposed he had gained his long wished-for end, neither the seeming authority of parliament, nor the anathemas thundered in the pope’s bull against the contravenors, could satisfy the people that they were not stripped of their ancient rights, or that the king and his committee were rightful legislators. What sentiments the nation entertained appears, from their deserting him as one man, and following the first standard that was set up against him[246].

Since the days of this unfortunate Richard, no king of England hath, in open and express terms, assumed to himself singly the right of legislation. Though James the First plainly claimed it, by implication, in many of his speeches, particularly in those famous words of his, _that as it was blasphemy for man to dispute what God might do in the plenitude of his omnipotence, so was it sedition for subjects to dispute what a king might do in the fulness of his power_. But it would be doing injustice to the house of Stuart not to acknowledge that some of the princes before them, particularly the Tudors, tho’ they did not pretend to make laws, yet issued out many proclamations, or _acts of state_, as they were afterwards called, to which they exacted the same unlimited obedience as if they had been laws enacted by parliament. This is a point worthy consideration; for if all proclamations, or acts of the king and his council, require unlimited obedience, it is to little purpose whether we call them laws or not, since such they are in effect. But this, I think, will be pretty plain, if we make a proper distinction between such proclamations, or acts of the king, as are particular exertions of the executive power, which the law and constitution hath entrusted him with, and such as, affecting the whole people, should in any wise alter, diminish, or impair the rights they were before lawfully in possession of.

To give some few instances of the first sort. The appointment of magistrates, the proclaiming war or peace, the laying on embargoes, or performance of quarantine, the ordering erection of beacons in times of danger of an invasion, the granting of escheated or forfeited estates, and many more, are the antient and undoubted prerogatives of the king alone, and the subject who resists, or disobeys, in such cases, is as much a _rebel_, or disobedient subject, as if these acts were exercised by the whole legislature. But with respect to making general rules and ordinances, affecting the previous rights of the people, the case is very different. For if such were to be universally obeyed, it is equivalent to saying, that subjects have, properly speaking, no rights at all, but hold every thing at the will of the king; a speech which the most despotic monarch in Europe would not venture to advance.

However, I will not carry this so far as to deny that there may cases happen wherein the king may have this right, and wherein his proclamations and orders, even relating to such points, ought to be obeyed. The cases, I mean, are those of a foreign invasion, or intestine rebellion, when the danger is too imminent to attend the resolutions of parliament. In such cases the constitution is, for a time, suspended by external violence, and as _salus populi suprema lex est_, every man is under an obligation to use his utmost endeavours to restore it, and, consequently, obliged to obey him, to whom the constitution has particularly entrusted that care. Instances of this kind did happen during the confusions raised by the houses of York and Lancaster, and the princes were accordingly obeyed. These precedents doubtless gave a handle to their successors, who had no competitors to the throne, to exercise the same power in more settled times. But this was used, at first, in a cautious and sparing manner; and Henry the Eighth, who was a monarch as unlikely to make undue condescensions to his people as ever lived, was glad to derive it from the grant of parliament, that his proclamations should have the force of laws, which was, in truth, giving into his hands the legislative power for life[247].

His great successor, Elizabeth, carried this practice farther, and it will be worth while to discover the reason why a people, in antient times, so jealous of their privileges, should to the one prince explicitly give up, and quietly suffer the other to usurp this power, so essential to a limited constitution. And the cause I take to be the critical state the nation stood in with respect to religion. The bulk of the people, glad to be delivered from the yoke of papal tyranny, and dreading its restoration, were willing to arm their princes with a power sufficient to protect their religion from foreign and domestic enemies; and about religion indeed, this power was at first principally exercised, on the footing of the papal supremacy being transferred to the king. Their end was attained: Papists and Puritans were both kept under, and happy in the enjoyment of their religion, they did not consider the consequences; that this very weapon might be used, by a prince of another stamp, to root out the very religion they were so fond of, and that, by admitting this exertion of power in a matter of so high consequence, it would naturally be used in others that appeared of less[248].

This was what accordingly happened. Proclamations on other points were issued; and monopolies in trade were introduced. All monopolies, undoubtedly, were not destructive to trade. Where a new traffick has been discovered, and one that requires a large expence, and is liable to many hazards, it is very reasonable that the first undertakers should have the trade for a time confined to them, that, by the prospect of extraordinary profit, they may be encouraged to promote and settle that commerce on a solid bottom. Such monopolies, instead of hurting, tend to the promotion of traffick, and are not without similar instances in former times, I mean the kings of England appointing the towns for the staple; and had Elizabeth and James confined themselves to the erection of the Russia, the Turky, and East India companies, and that for a limited term, their conduct would have deserved the highest applause; but that was far from being the case. Monopolies were introduced in the antient, the most common and most necessary commodities, to the great impoverishment of the nation by the advance of prices.

At first it may seem strange that the wise Elizabeth, who, on all occasions, seemed to have her people’s wealth and ease at heart, should follow so destructive a course. But the great end of all her actions was the securing herself on the throne, and one of the principal means she used for that end, was the asking money from her people as seldom as possible. Hence proceeded the long leases of the crown lands, at small rents and large fines, and hence all the monopolies, which she sold to the undertakers; but better had it been for her subjects, to have raised the sums she wanted by an additional subsidy, or an easy tax, than to pay to the monopolists what they had advanced, with their exorbitant profits besides. What Elizabeth began out of policy, James continued, to supply his profusion, to such an extraordinary degree, as disgusted his people, provoked his parliament, and at last made himself ashamed, insomuch that he revoked above twenty. And now no monopoly can be raised but by act of parliament, except in case of a new invention, and that but for a short term of years[249].

I come now to the _dispensing power_, another prerogative which the Stuarts claimed, and which cost the last of them the throne. As no state can subsist without mercy as well as justice, the king hath the power of distributing this mercy, and exempting a convicted criminal from the penalty of the law, but this is only where the conviction is at his suit; thus the king can pardon a murderer convicted on an indictment in the king’s name, but if he was convicted on an _appeal_ by the next relation, the king cannot. The pardon belongs to the appellant. But there is a wide difference between a _pardon_, that is remission of punishment after the fact, and _dispensing_, which is giving a previous licence to break the law. A general dispensation is, in fact, a repeal, and a particular one is a repeal _quod hunc_, and therefore can belong only to the legislature. The Roman emperors, and the popes, as legislators, assumed this power, and Henry the Third, an apt pupil of his lord and master the pope, introduced the practice into England. In his reign a patent, with a _non obstante_ to any law whatsoever, was produced into court before Roger de Thurkeby, and this honest judge was astonished at the innovation, as Matthew Paris tells us in these words: _Quod cum comperisset, ab alto ducens suspicia de prædictæ adjectionis appositione, dixit, heu, heu hos utquid dies expectavimus, ecce, jam civilis curia exemplo ecclesiasticæ, conquinatur, & a sulphureo fonte rivulus intoxicatur_[250].

LECTURE XX.

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

Next in rank to the king are the _lords_, that held immediately of him by military service, as long as that species of tenure subsisted; and whom, from their privilege of sitting in parliament in their own rights, are frequently called _Lords of Parliament_, and in common speech are called _Peers_, though that word properly signifies any _co-vassals_ to the same lord. Thus every immediate vassal of a baron are peers of that barony, and the accurate description of the great personages I am speaking of is _Pares Regni_. Of these there were, antiently, two ranks only, in England, _Earls_ and _Barons_. Indeed, abroad also, to speak properly, there were but two likewise: for there was no difference in power and privilege between the _dukes_ and _counts_, or _earls_. But as every earl is a baron, and something more, and as it is a maxim of our law, that every lord of parliament sits there by virtue of his barony, it will, in the first place, be necessary to see what a baron is.