Commentaries on the Laws of England
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Commentaries on the Laws of England
William Blackstone1768
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Commentaries
on the
Laws
of
England.
Book the First.
by
William Blackstone, Esq.
Vinerian Professor of Law,
and
Solicitor General to Her Majesty.
The Third Edition.
Oxford,
Printed at the Clarendon Press.
M. DCC. LXVIII.
To
The Queen’s Most Excellent Majesty,
The following view
of the laws and constitution
of England,
the improvement and protection of which
have distinguished the reign
of Her Majesty’s Royal Consort,
is,
with all gratitude and humility,
most respectfully inscribed
by her dutiful
and most obedient
servant,
William Blackstone.
Preface.
The following sheets contain the substance of a course of lectures on the laws of England, which were read by the author in the university of Oxford. His original plan took it’s rise in the year 1753: and, notwithstanding the novelty of such an attempt in this age and country, and the prejudices usually conceived against any innovations in the established mode of education, he had the satisfaction to find (and he acknowleges it with a mixture of pride and gratitude) that his endeavours were encouraged and patronized by those, both in the university and out of it, whose good opinion and esteem he was principally desirous to obtain.
The death of Mr Viner in 1756, and his ample benefaction to the university for promoting the study of the law, produced about two years afterwards a regular and public establishment of what the author had privately undertaken. The knowlege of our laws and constitution was adopted as a liberal science by general academical authority; competent endowments were decreed for the support of a lecturer, and the perpetual encouragement of students; and the compiler of the ensuing commentaries had the honour to be elected the first Vinerian professor.
In this situation he was led, both by duty and inclination, to investigate the elements of the law, and the grounds of our civil polity, with greater assiduity and attention than many have thought it necessary to do. And yet all, who of late years have attended the public administration of justice, must be sensible that a masterly acquaintance with the general spirit of laws and the principles of universal jurisprudence, combined with an accurate knowlege of our own municipal constitutions, their original, reason, and history, hath given a beauty and energy to many modern judicial decisions, with which our ancestors were wholly unacquainted. If, in the pursuit of these inquiries, the author hath been able to rectify any errors which either himself or others may have heretofore imbibed, his pains will be sufficiently answered: and, if in some points he is still mistaken, the candid and judicious reader will make due allowances for the difficulties of a search so new, so extensive, and so laborious.
The labour indeed of these researches, and of a regular attention to his duty, for a series of so many years, he hath found inconsistent with his health, as well as his other avocations: and hath therefore desired the university’s permission to retire from his office, after the conclusion of the annual course in which he is at present engaged. But the hints, which he had collected for the use of his pupils, having been thought by some of his more experienced friends not wholly unworthy of the public eye, it is therefore with the less reluctance that he now commits them to the press: though probably the little degree of reputation, which their author may have acquired by the candor of an audience (a test widely different from that of a deliberate perusal) would have been better consulted by a total suppression of his lectures;—had that been a matter intirely within his power.
For the truth is, that the present publication is as much the effect of necessity, as it is of choice. The notes which were taken by his hearers, have by some of them (too partial in his favour) been thought worth revising and transcribing; and these transcripts have been frequently lent to others. Hence copies have been multiplied, in their nature imperfect, if not erroneous; some of which have fallen into mercenary hands, and become the object of clandestine sale. Having therefore so much reason to apprehend a surreptitious impression, he chose rather to submit his own errors to the world, than to seem answerable for those of other men. And, with this apology, he commits himself to the indulgence of the public.
2 Nov. 1765.
Contents.
Introduction.
Sect. I.
On the Study of the Law.Page 3.
Sect. II.
Of the Nature of Laws in general.38.
Sect. III.
Of the Laws of England.63.
Sect. IV.
Of the Countries subject to the Laws of England.93.
Book I.
Of the Rights of Persons.
Chap. I.
Of the absolute Rights of Individuals.121.
Chap. II.
Of the Parliament.146.
Chap. III.
Of the King, and his Title.190.
Chap. IV.
Of the King’s royal Family.219.
Chap. V.
Of the Councils belonging to the King.227.
Chap. VI.
Of the King’s Duties.233.
Chap. VII.
Of the King’s Prerogative.237.
Chap. VIII.
Of the King’s Revenue.281.
Chap. IX.
Of subordinate Magistrates.338.
Chap. X.
Of the People, whether Aliens, Denizens, or Natives.366.
Chap. XI.
Of the Clergy.376.
Chap. XII.
Of the Civil State.396.
Chap. XIII.
Of the Military and Maritime States.407.
Chap. XIV.
Of Master and Servant.422.
Chap. XV.
Of Husband and Wife.433.
Chap. XVI.
Of Parent and Child.446.
Chap. XVII.
Of Guardian and Ward.460.
Chap. XVIII.
Of Corporations.467.
Contents.
Book II.
Of the Rights of Things.
Chap. I.
Of Property, in general.Page 1.
Chap. II.
Of real Property; and, first, of corporeal Hereditaments.16.
Chap. III.
Of incorporeal Hereditaments.20.
Chap. IV.
Of the feodal System.44.
Chap. V.
Of the antient English Tenures.59.
Chap. VI.
Of the modern English Tenures.78.
Chap. VII.
Of freehold Estates, of Inheritance.103.
Chap. VIII.
Of Freeholds, not of Inheritance.120.
Chap. IX.
Of Estates, less than Freehold.140.
Chap. X.
Of Estates upon Condition.152.
Chap. XI.
Of Estates in Possession, Remainer, and Reversion.163.
Chap. XII.
Of Estates in Severalty, Joint-tenancy, Coparcenary, and Common.179.
Chap. XIII.
Of the Title to Things real, in general.195.
Chap. XIV.
Of Title by Descent.200.
Chap. XV.
Of Title by Purchase; and, first, by Escheat.241.
Chap. XVI.
Of Title by Occupancy.258.
Chap. XVII.
Of Title by Prescription.263.
Chap. XVIII.
Of Title by Forfeiture.267.
Chap. XIX.
Of Title by Alienation.287.
Chap. XX.
Of Alienation by Deed.295.
Chap. XXI.
Of Alienation by matter of Record.344.
Chap. XXII.
Of Alienation by special Custom.365.
Chap. XXIII.
Of Alienation by Devise.373.
Chap. XXIV.
Of Things personal.384.
Chap. XXV.
Of Property in Things personal.389.
Chap. XXVI.
Of400.
Chap. XXVII.
Of408.
Chap. XXVIII.
Of422.
Chap. XXIX.
Of430.
Chap. XXX.
Of440.
Chap. XXXI.
Of471.
Chap. XXXII.
Of489.
Appendix.
№. I. Vetus Carta Page i.
№. II. A modern Conveyance by
§. 1. Lease, or Bargain and Sale, for a Year. ii.
§. 2. Deed of Release. iii.
№. III. An xiii.
№. IV. A
§. 1. Writ of Covenant, or Praecipe. xiv.
§. 2. The Licence to agree. ibid.
§. 3. The Concord. ibid.
§. 4. The Note, or Abstract. xv.
§. 5. The Foot, Chirograph, or Indentures of the Fine. ibid.
§. 6. Proclamations, endorsed upon the Fine, according to the Statutes. xvi.
№. V. A common
§. 1. Writ of Entry fur Disseisin in the Post; or Praecipe. xvii.
§. 2. Exemplification of the Recovery Roll. ibid.
Contents.
Book III.
Of Private Wrongs.
Chap. I.
Of thePage 1.
Chap. II.
Of Redress by the mere operation of Law.18.
Chap. III.
Of22.
Chap. IV.
Of the30.
Chap. V.
Of61.
Chap. VI.
Of71.
Chap. VII.
Of the86.
Chap. VIII.
Of115.
Chap. IX.
Of144.
Chap. X.
Of167.
Chap. XI.
Of198.
Chap. XII.
Of Trespass.208.
Chap. XIII.
Of Nusance.216.
Chap. XIV.
Of223.
Chap. XV.
Of230.
Chap. XVI.
Of236.
Chap. XVII.
Of254.
Chap. XVIII.
Of the270.
Chap. XIX.
Of279.
Chap. XX.
Of293.
Chap. XXI.
Of314.
Chap. XXII.
Of the several325.
Chap. XXIII.
Of the349.
Chap. XXIV.
Of386.
Chap. XXV.
Of402.
Chap. XXVI.
Of412.
Chap. XXVII.
Of426.
Appendix.
№. I. Proceedings on a Writ of Page i.
§. 1. Writ of Right patent in the Court Baron. ibid.
§. 2. Writ of Tolt, to remove it into the County Court. ibid.
§. 3. Writ of Pone, to remove it into the Court of Common Pleas. ii.
§. 4. Writ of Right, quia Dominus remisit Curiam. ibid.
§. 5. The Record, with award of Battel. iii.
§. 6. Trial by the grand Assise. v.
№. II. Proceedings on an Action of Trespass in vii.
§. 1. The Original Writ. ibid.
§. 2. Copy of the Declaration against the casual Ejector; who gives Notice thereupon to the Tenant in Possession. ibid.
§. 3. The Rule of Court. ix.
§. 4. The Record. ibid.
№. III. Proceedings on an Action of xiii.
§. 1. Original. ibid.
§. 2. Process. ibid.
§. 3. Bill of Middlesex, and Latitat thereupon, in the Court of King’s Bench. xviii.
§. 4. Writ of Quo minus in the Exchequer. xix.
§. 5. Special Bail; on the Arrest of the Defendant, pursuant to the Testatum Capias, in page xiv. ibid.
§. 6. The Record, as removed by Writ of Error. xxi.
§. 7. Process of Execution. xxvi.
Contents.
Book IV.
Of Public Wrongs.
Chap. I.
Of the Nature of Crimes; and their Punishment.Page 1.
Chap. II.
Of the Persons Capable of committing Crimes.20.
Chap. III.
Of34.
Chap. IV.
Of41.
Chap. V.
Of66.
Chap. VI.
Of74.
Chap. VII.
Of94.
Chap. VIII.
Of102.
Chap. IX.
Of119.
Chap. X.
Of127.
Chap. XI.
Of142.
Chap. XII.
Of154.
Chap. XIII.
Of161.
Chap. XIV.
Of176.
Chap. XV.
Of Offences against the Persons of Individuals.205.
Chap. XVI.
Of220.
Chap. XVII.
Of229.
Chap. XVIII.
Of the means of248.
Chap. XIX.
Of255.
Chap. XX.
Of277.
Chap. XXI.
Of286.
Chap. XXII.
Of293.
Chap. XXIII.
Of the several298.
Chap. XXIV.
Of313.
Chap. XXV.
Of317.
Chap. XXVI.
Of326.
Chap. XXVII.
Of336.
Chap. XXVIII.
Of the358.
Chap. XXIX.
Of368.
Chap. XXX.
Of383.
Chap. XXXI.
Of387.
Chap. XXXII.
Of396.
Chap. XXXIII.
Of the400.
Appendix.
§. 1. Record of an Indictment and Conviction of Murder, at the Assises. Page i.
§. 2. Conviction of Manslaughter. iv.
§. 3. Entry of a trial instanter in the Court of King’s Bench, upon a collateral Issue; and Rule of Court for Execution thereon. v.
§. 4. Warrant of Execution on Judgment of Death, at the general Gaol-delivery in London and Middlesex. vi.
§. 5. Writ of Execution upon a judgment of Murder, before the King in Parliament. vii.
Index.
This work was published before January 1, 1930, and is in the public domain worldwide because the author died at least 100 years ago.
Introduction.
Section the first.
On the Study of the Law.[1]
Mr Vice-Chancellor, and gentlemen of the university,
The general expectation of so numerous and respectable an audience, the novelty, and (I may add) the importance of the duty required from this chair, must unavoidably be productive of great diffidence and apprehensions in him who has the honour to be placed in it. He must be sensible how much will depend upon his conduct in the infancy of a study, which is now first adopted by public academical authority; which has generally been reputed (however unjustly) of a dry and unfruitful nature; and of which the theoretical, elementary parts have hitherto received a very moderate share of cultivation. He cannot but reflect that, if either his plan of instruction be crude and injudicious, or the execution of it lame and superficial, it will cast a damp upon the farther progress of this most useful and most rational branch of learning; and may defeat for a time the spirited design of our wise and munificent benefactor. And this he must more especially dread, when he feels by experience how unequal his abilities are (unassisted by preceding examples) to complete, in the manner he could wish, so extensive and arduous a task; since he freely confesses, that his former more private attempts have fallen very short of his own ideas of perfection. And yet the candour he has already experienced, and this last transcendent mark of regard, his present nomination by the free and unanimous suffrage of a great and learned university, (an honour to be ever remembered with the deepest and most affectionate gratitude) these testimonies of your public judgment must entirely supersede his own, and forbid him to believe himself totally insufficient for the labour at least of this employment. One thing he will venture to hope for, and it certainly shall be his constant aim, by diligence and attention to atone for his other defects; esteeming, that the best return, which he can possibly make for your favourable opinion of his capacity, will be his unwearied endeavours in some little degree to deserve it.
The science thus committed to his charge, to be cultivated, methodized, and explained in a course of academical lectures, is that of the laws and constitution of our own country: a species of knowlege, in which the gentlemen of England have been more remarkably deficient than those of all Europe besides. In most of the nations on the continent, where the civil or imperial law under different modifications is closely interwoven with the municipal laws of the land, no gentleman, or at least no scholar, thinks his education is completed, till he has attended a course or two of lectures, both upon the institutes of Justinian and the local constitutions of his native soil, under the very eminent professors that abound in their several universities. And in the northern parts of our own island, where also the municipal laws are frequently connected with the civil, it is difficult to meet with a person of liberal education, who is destitute of a competent knowlege in that science, which is to be the guardian of his natural rights and the rule of his civil conduct.
Nor have the imperial laws been totally neglected even in the English nation. A general acquaintance with their decisions has ever been deservedly considered as no small accomplishment of a gentleman; and a fashion has prevailed, especially of late, to transport the growing hopes of this island to foreign universities, in Switzerland, Germany, and Holland; which, though infinitely inferior to our own in every other consideration, have been looked upon as better nurseries of the civil, or (which is nearly the same) of their own municipal law. In the mean time it has been the peculiar lot of our admirable system of laws, to be neglected, and even unknown, by all but one practical profession; though built upon the soundest foundations, and approved by the experience of ages.
Far be it from me to derogate from the study of the civil law, considered (apart from any binding authority) as a collection of written reason. No man is more thoroughly persuaded of the general excellence of it’s rules, and the usual equity of it’s decisions, nor is better convinced of it’s use as well as ornament to the scholar, the divine, the statesman, and even the common lawyer. But we must not carry our veneration so far as to sacrifice our Alfred and Edward to the manes of Theodosius and Justinian: we must not prefer the edict of the praetor, or the rescript of the Roman emperor, to our own immemorial customs, or the sanctions of an English parliament; unless we can also prefer the despotic monarchy of Rome and Byzantium, for whose meridians the former were calculated, to the free constitution of Britain, which the latter are adapted to perpetuate.
Without detracting therefore from the real merit which abounds in the imperial law, I hope I may have leave to assert, that if an Englishman must be ignorant of either the one or the other, he had better be a stranger to the Roman than the English institutions. For I think it an undeniable position, that a competent knowlege of the laws of that society, in which we live, is the proper accomplishment of every gentleman and scholar; an highly useful, I had almost said essential, part of liberal and polite education. And in this I am warranted by the example of antient Rome; where, as Cicero informs us[2], the very boys were obliged to learn the twelve tables by heart, as a carmen necessarium or indispensable lesson, to imprint on their tender minds an early knowlege of the laws and constitutions of their country.
But as the long and universal neglect of this study, with us in England, seems in some degree to call in question the truth of this evident position, it shall therefore be the business of this introductory discourse, in the first place to demonstrate the utility of some general acquaintance with the municipal law of the land, by pointing out it’s particular uses in all considerable situations of life. Some conjectures will then be offered with regard to the causes of neglecting this useful study: to which will be subjoined a few reflexions on the peculiar propriety of reviving it in our own universities.
And, first, to demonstrate the utility of some acquaintance with the laws of the land, let us only reflect a moment on the singular frame and polity of that land, which is governed by this system of laws. A land, perhaps the only one in the universe, in which political or civil liberty is the very end and scope of the constitution[3]. This liberty, rightly understood, consists in the power of doing whatever the laws permit[4]; which is only to be effected by a general conformity of all orders and degrees to those equitable rules of action, by which the meanest individual is protected from the insults and oppression of the greatest. As therefore every subject is interested in the preservation of the laws, it is incumbent upon every man to be acquainted with those at least, with which he is immediately concerned; lest he incur the censure, as well as inconvenience, of living in society without knowing the obligations which it lays him under. And thus much may suffice for persons of inferior condition, who have neither time nor capacity to enlarge their views beyond that contracted sphere in which they are appointed to move. But those, on whom nature and fortune have bestowed more abilities and greater leisure, cannot be so easily excused. These advantages are given them, not for the benefit of themselves only, but also of the public: and yet they cannot, in any scene of life, discharge properly their duty either to the public or themselves, without some degree of knowlege in the laws. To evince this the more clearly, it may not be amiss to descend to a few particulars.
Let us therefore begin with our gentlemen of independent estates and fortune, the most useful as well as considerable body of men in the nation; whom even to suppose ignorant in this branch of learning is treated by Mr Locke[5] as a strange absurdity. It is their landed property, with it’s long and voluminous train of descents and conveyances, settlements, entails, and incumbrances, that forms the most intricate and most extensive object of legal knowlege. The thorough comprehension of these, in all their minute distinctions, is perhaps too laborious a task for any but a lawyer by profession: yet still the understanding of a few leading principles, relating to estates and conveyancing, may form some check and guard upon a gentleman’s inferior agents, and preserve him at least from very gross and notorious imposition.
Again, the policy of all laws has made some forms necessary in the wording of last wills and testaments, and more with regard to their attestation. An ignorance in these must always be of dangerous consequence, to such as by choice or necessity compile their own testaments without any technical assistance. Those who have attended the courts of justice are the best witnesses of the confusion and distresses that are hereby occasioned in families; and of the difficulties that arise in discerning the true meaning of the testator, or sometimes in discovering any meaning at all: so that in the end his estate may often be vested quite contrary to these his enigmatical intentions, because perhaps he has omitted one or two formal words, which are necessary to ascertain the sense with indisputable legal precision, or has executed his will in the presence of fewer witnesses than the law requires.
But to proceed from private concerns to those of a more public consideration. All gentlemen of fortune are, in consequence of their property, liable to be called upon to establish the rights, to estimate the injuries, to weigh the accusations, and sometimes to dispose of the lives of their fellow-subjects, by serving upon juries. In this situation they have frequently a right to decide, and that upon their oaths, questions of nice importance, in the solution of which some legal skill is requisite; especially where the law and the fact, as it often happens, are intimately blended together. And the general incapacity, even of our best juries, to do this with any tolerable propriety has greatly debased their authority; and has unavoidably thrown more power into the hands of the judges, to direct, control, and even reverse their verdicts, than perhaps the constitution intended.
But it is not as a juror only that the English gentleman is called upon to determine questions of right, and distribute justice to his fellow-subjects: it is principally with this order of men that the commission of the peace is filled. And here a very ample field is opened for a gentleman to exert his talents, by maintaining good order in his neighbourhood; by punishing the dissolute and idle; by protecting the peaceable and industrious; and, above all, by healing petty differences and preventing vexatious prosecutions. But, in order to attain these desirable ends, it is necessary that the magistrate should understand his business; and have not only the will, but the power also, (under which must be included the knowlege) of administring legal and effectual justice. Else, when he has mistaken his authority, through passion, through ignorance, or absurdity, he will be the object of contempt from his inferiors, and of censure from those to whom he is accountable for his conduct.
Yet farther; most gentlemen of considerable property, at some period or other in their lives, are ambitious of representing their country in parliament: and those, who are ambitious of receiving so high a trust, would also do well to remember it’s nature and importance. They are not thus honourably distinguished from the rest of their fellow-subjects, merely that they may privilege their persons, their estates, or their domestics; that they may list under party banners; may grant or with-hold supplies; may vote with or vote against a popular or unpopular administration; but upon considerations far more interesting and important. They are the guardians of the English constitution; the makers, repealers, and interpreters of the English laws; delegated to watch, to check, and to avert every dangerous innovation, to propose, to adopt, and to cherish any solid and well-weighed improvement; bound by every tie of nature, of honour, and of religion, to transmit that constitution and those laws to their posterity, amended if possible, at least without any derogation. And how unbecoming must it appear in a member of the legislature to vote for a new law, who is utterly ignorant of the old! what kind of interpretation can he be enabled to give, who is a stranger to the text upon which he comments!
Indeed it is perfectly amazing, that there should be no other state of life, no other occupation, art, or science, in which some method of instruction is not looked upon as requisite, except only the science of legislation, the noblest and most difficult of any. Apprenticeships are held necessary to almost every art, commercial or mechanical: a long course of reading and study must form the divine, the physician, and the practical professor of the laws: but every man of superior fortune thinks himself born a legislator. Yet Tully was of a different opinion: “it is necessary, says he[6], for a senator to be thoroughly acquainted with the constitution; and this, he declares, is a knowlege of the most extensive nature; a matter of science, of diligence, of reflexion; without which no senator can possibly be fit for his office.”
The mischiefs that have arisen to the public from inconsiderate alterations in our laws, are too obvious to be called in question; and how far they have been owing to the defective education of our senators, is a point well worthy the public attention. The common law of England has fared like other venerable edifices of antiquity, which rash and unexperienced workmen have ventured to new-dress and refine, with all the rage of modern improvement. Hence frequently it’s symmetry has been destroyed, it’s proportions distorted, and it’s majestic simplicity exchanged for specious embellishments and fantastic novelties. For, to say the truth, almost all the perplexed questions, almost all the niceties, intricacies, and delays (which have sometimes disgraced the English, as well as other, courts of justice) owe their original not to the common law itself, but to innovations that have been made in it by acts of parliament; “overladen (as sir Edward Coke expresses it[7]) with provisoes and additions, and many times on a sudden penned or corrected by men of none or very little judgment in law.” This great and well-experienced judge declares, that in all his time he never knew two questions made upon rights merely depending upon the common law; and warmly laments the confusion introduced by ill-judging and unlearned legislators. “But if, he subjoins, acts of parliament were after the old fashion penned, by such only as perfectly knew what the common law was before the making of any act of parliament concerning that matter, as also how far forth former statutes had provided remedy for former mischiefs, and defects discovered by experience; then should very few questions in law arise, and the learned should not so often and so much perplex their heads to make atonement and peace, by construction of law, between insensible and disagreeing words, sentences, and provisoes, as they now do.” And if this inconvenience was so heavily felt in the reign of queen Elizabeth, you may judge how the evil is increased in later times, when the statute book is swelled to ten times a larger bulk; unless it should be found, that the penners of our modern statutes have proportionably better informed themselves in the knowlege of the common law.
What is said of our gentlemen in general, and the propriety of their application to the study of the laws of their country, will hold equally strong or still stronger with regard to the nobility of this realm, except only in the article of serving upon juries. But, instead of this, they have several peculiar provinces of far greater consequence and concern; being not only by birth hereditary counsellors of the crown, and judges upon their honour of the lives of their brother-peers, but also arbiters of the property of all their fellow-subjects, and that in the last resort. In this their judicial capacity they are bound to decide the nicest and most critical points of the law; to examine and correct such errors as have escaped the most experienced sages of the profession, the lord keeper and the judges of the courts at Westminster. Their sentence is final, decisive, irrevocable: no appeal, no correction, not even a review can be had: and to their determination, whatever it be, the inferior courts of justice must conform; otherwise the rule of property would no longer be uniform and steady.
Should a judge in the most subordinate jurisdiction be deficient in the knowlege of the law, it would reflect infinite contempt upon himself and disgrace upon those who employ him. And yet the consequence of his ignorance is comparatively very trifling and small: his judgment may be examined, and his errors rectified, by other courts. But how much more serious and affecting is the case of a superior judge, if without any skill in the laws he will boldly venture to decide a question, upon which the welfare and subsistence of whole families may depend! where the chance of his judging right, or wrong, is barely equal; and where, if he chances to judge wrong, he does an injury of the most alarming nature, an injury without possibility of redress!
Yet, vast as this trust is, it can no where be so properly reposed as in the noble hands where our excellent constitution has placed it: and therefore placed it, because, from the independence of their fortune and the dignity of their station, they are presumed to employ that leisure which is the consequence of both, in attaining a more extensive knowlege of the laws than persons of inferior rank: and because the founders of our polity relied upon that delicacy of sentiment, so peculiar to noble birth; which, as on the one hand it will prevent either interest or affection from interfering in questions of right, so on the other it will bind a peer in honour, an obligation which the law esteems equal to another’s oath, to be master of those points upon which it is his birthright to decide.
The Roman pandects will furnish us with a piece of history not unapplicable to our present purpose. Servius Sulpicius, a gentleman of the patrician order, and a celebrated orator, had occasion to take the opinion of Quintus Mutius Scaevola, the oracle of the Roman law; but for want of some knowlege in that science, could not so much as understand even the technical terms, which his friend was obliged to make use of. Upon which Mutius Scaevola could not forbear to upbraid him with this memorable reproof[8], “that it was a shame for a patrician, a nobleman, and an orator of causes, to be ignorant of that law in which he was so peculiarly concerned.” This reproach made so deep an impression on Sulpicius, that he immediately applied himself to the study of the law; wherein he arrived to that proficiency, that he left behind him about a hundred and fourscore volumes of his own compiling upon the subject; and became, in the opinion of Cicero[9], a much more complete lawyer than even Mutius Scaevola himself.
I would not be thought to recommend to our English nobility and gentry to become as great lawyers as Sulpicius; though he, together with this character, sustained likewise that of an excellent orator, a firm patriot, and a wise indefatigable senator; but the inference which arises from the story is this, that ignorance of the laws of the land hath ever been esteemed dishonourable, in those who are entrusted by their country to maintain, to administer, and to amend them.
But surely there is little occasion to enforce this argument any farther to persons of rank and distinction, if we of this place may be allowed to form a general judgment from those who are under our inspection: happy, that while we lay down the rule, we can also produce the example. You will therefore permit your professor to indulge both a public and private satisfaction, by bearing this open testimony; that in the infancy of these studies among us, they were favoured with the most diligent attendance, and pursued with the most unwearied application, by those of the noblest birth and most ample patrimony: some of whom are still the ornaments of this seat of learning; and others at a greater distance continue doing honour to it’s institutions, by comparing our polity and laws with those of other kingdoms abroad, or exerting their senatorial abilities in the councils of the nation at home.
Nor will some degree of legal knowlege be found in the least superfluous to persons of inferior rank; especially those of the learned professions. The clergy in particular, besides the common obligations they are under in proportion to their rank and fortune, have also abundant reason, considered merely as clergymen, to be acquainted with many branches of the law, which are almost peculiar and appropriated to themselves alone. Such are the laws relating to advowsons, institutions, and inductions; to simony, and simoniacal contracts; to uniformity, residence, and pluralities; to tithes and other ecclesiastical dues; to marriages (more especially of late) and to a variety of other subjects, which are consigned to the care of their order by the provisions of particular statutes. To understand these aright, to discern what is warranted or enjoined, and what is forbidden by law, demands a sort of legal apprehension; which is no otherwise to be acquired than by use and a familiar acquaintance with legal writers.
For the gentlemen of the faculty of physic, I must frankly own that I see no special reason, why they in particular should apply themselves to the study of the law; unless in common with other gentlemen, and to complete the character of general and extensive knowlege; a character which their profession, beyond others, has remarkably deserved. They will give me leave however to suggest, and that not ludicrously, that it might frequently be of use to families upon sudden emergencies, if the physician were acquainted with the doctrine of last wills and testaments, at least so far as relates to the formal part of their execution.
But those gentlemen who intend to profess the civil and ecclesiastical laws in the spiritual and maritime courts of this kingdom, are of all men (next to common lawyers) the most indispensably obliged to apply themselves seriously to the study of our municipal laws. For the civil and canon laws, considered with respect to any intrinsic obligation, have no force or authority in this kingdom; they are no more binding in England than our laws are binding at Rome. But as far as these foreign laws, on account of some peculiar propriety, have in some particular cases, and in some particular courts, been introduced and allowed by our laws, so far they oblige, and no farther; their authority being wholly founded upon that permission and adoption. In which we are not singular in our notions: for even in Holland, where the imperial law is much cultivated and it’s decisions pretty generally followed, we are informed by Van Leeuwen[10], that, “it receives it’s force from custom and the consent of the people, either tacitly or expressly given: for otherwise, he adds, we should no more be bound by this law, than by that of the Almains, the Franks, the Saxons, the Goths, the Vandals, and other of the antient nations.” Wherefore, in all points in which the different systems depart from each other, the law of the land takes place of the law of Rome, whether antient or modern, imperial or pontificial. And in those of our English courts wherein a reception has been allowed to the civil and canon laws, if either they exceed the bounds of that reception, by extending themselves to other matters, than are permitted to them; or if such courts proceed according to the decisions of those laws, in cases wherein it is controlled by the law of the land, the common law in either instance both may, and frequently does, prohibit and annul their proceedings[11]: and it will not be a sufficient excuse for them to tell the king’s courts at Westminster, that their practice is warranted by the laws of Justinian or Gregory, or is conformable to the decrees of the Rota or imperial chamber. For which reason it becomes highly necessary for every civilian and canonist that would act with safety as a judge, or with prudence and reputation as an advocate, to know in what cases and how far the English laws have given sanction to the Roman; in what points the latter are rejected; and where they are both so intermixed and blended together, as to form certain supplemental parts of the common law of England, distinguished by the titles of the king’s maritime, the king’s military, and the king’s ecclesiastical law. The propriety of which enquiry the university of Oxford has for more than a century so thoroughly seen, that in her statutes[12] she appoints, that one of the three questions to be annually discussed at the act by the jurist-inceptors shall relate to the common law; subjoining this reason, “quia juris civilis studiosos decet haud imperitos esse juris municipalis, et differentias teri patriique juris notas habere.” And the statutes[13] of the university of Cambridge speak expressly to the same effect.
From the general use and necessity of some acquaintance with the common law, the inference were extremely easy, with regard to the propriety of the present institution, in a place to which gentlemen of all ranks and degrees resort, as the fountain of all useful knowlege. But how it has come to pass that a design of this sort has never before taken place in the university, and the reason why the study of our laws has in general fallen into disuse, I shall previously proceed to enquire.
Sir John Fortescue, in his panegyric on the laws of England, (which was written in the reign of Henry the sixth) puts[14] a very obvious question in the mouth of the young prince, whom he is exhorting to apply himself to that branch of learning; “why the laws of England, being so good, so fruitful, and so commodious, are not taught in the universities, as the civil and canon laws are?” In answer to which he gives[15] what seems, with due deference be it spoken, a very jejune and unsatisfactory reason; being in short, that “as the proceedings at common law were in his time carried on in three different tongues, the English, the Latin, and the French, that science must be necessarily taught in those three several languages; but that in the universities all sciences were taught in the Latin tongue only; and therefore he concludes, that they could not be conveniently taught or studied in our universities.” But without attempting to examine seriously the validity of this reason, (the very shadow of which by the wisdom of your late constitutions is entirely taken away) we perhaps may find out a better, or at least a more plausible account, why the study of the municipal laws has been banished from these seats of science, than what the learned chancellor thought it prudent to give to his royal pupil.
That antient collection of unwritten maxims and customs, which is called the common law, however compounded or from whatever fountains derived, had subsisted immemorially in this kingdom; and, though somewhat altered and impaired by the violence of the times, had in great measure weathered the rude shock of the Norman conquest. This had endeared it to the people in general, as well because it’s decisions were universally known, as because it was found to be excellently adapted to the genius of the English nation. In the knowlege of this law consisted great part of the learning of those dark ages; it was then taught, says Mr Selden[16], in the monasteries, in the universities, and in the families of the principal nobility. The clergy in particular, as they then engrossed almost every other branch of learning, so (like their predecessors the British druids[17]) they were peculiarly remarkable for their proficiency in the study of the law. Nullus clericus nisi causidicus, is the character given of them soon after the conquest by William of Malmsbury[18]. The judges therefore were usually created out of the sacred order[19], as was likewise the case among the Normans[20]; and all the inferior offices were supplied by the lower clergy, which has occasioned their successors to be denominated clerks to this day.
But the common law of England, being not committed to writing, but only handed down by tradition, use, and experience, was not so heartily relished by the foreign clergy; who came over hither in shoals during the reign of the conqueror and his two sons, and were utter strangers to our constitution as well as our language. And an accident, which soon after happened, had nearly completed it’s ruin. A copy of Justinian’s pandects, being newly[21] discovered at Amalfi, soon brought the civil law into vogue all over the west of Europe, where before it was quite laid aside[22] and in a manner forgotten; though some traces of it’s authority remained in Italy[23] and the eastern provinces of the empire[24]. This now became in a particular manner the favourite of the popish clergy, who borrowed the method and many of the maxims of their canon law from this original. The study of it was introduced into several universities abroad, particularly that of Bologna; where exercises were performed, lectures read, and degrees conferred in this faculty, as in other branches of science: and many nations on the continent, just then beginning to recover from the convulsions consequent upon the overthrow of the Roman empire, and settling by degrees into peaceable forms of government, adopted the civil law, (being the best written system then extant) as the basis of their several constitutions; blending and interweaving it among their own feodal customs, in some places with a more extensive, in others a more confined authority[25].
Nor was it long before the prevailing mode of the times reached England. For Theobald, a Norman abbot, being elected to the see of Canterbury[26], and extremely addicted to this new study, brought over with him in his retinue many learned proficients therein; and among the rest Roger sirnamed Vacarius, whom he placed in the university of Oxford[27], to teach it to the people of this country. But it did not meet with the same easy reception in England, where a mild and rational system of laws had been long established, as it did upon the continent; and, though the monkish clergy (devoted to the will of a foreign primate) received it with eagerness and zeal, yet the laity who were more interested to preserve the old constitution, and had already severely felt the effect of many Norman innovations, continued wedded to the use of the common law. King Stephen immediately published a proclamation[28], forbidding the study of the laws, then newly imported from Italy; which was treated by the monks[29] as a piece of impiety, and, though it might prevent the introduction of the civil law process into our courts of justice, yet did not hinder the clergy from reading and teaching it in their own schools and monasteries.
From this time the nation seems to have been divided into two parties; the bishops and clergy, many of them foreigners, who applied themselves wholly to the study of the civil and canon laws, which now came to be inseparably interwoven with each other; and the nobility and laity, who adhered with equal pertinacity to the old common law; both of them reciprocally jealous of what they were unacquainted with, and neither of them perhaps allowing the opposite system that real merit which is abundantly to be found in each. This appears on the one hand from the spleen with which the monastic writers[30] speak of our municipal laws upon all occasions; and, on the other, from the firm temper which the nobility shewed at the famous parliament of Merton; when the prelates endeavoured to procure an act, to declare all bastards legitimate in case the parents intermarried at any time afterwards; alleging this only reason, because holy church (that is, the canon law) declared such children legitimate: but “all the earls and barons (says the parliament roll[31]) with one voice answered, that they would not change the laws of England, which had hitherto been used and approved.” And we find the same jealousy prevailing above a century afterwards[32], when the nobility declared with a kind of prophetic spirit, “that the realm of England hath never been unto this hour, neither by the consent of our lord the king and the lords of parliament shall it ever be, ruled or governed by the civil law[33].” And of this temper between the clergy and laity many more instances might be given.
While things were in this situation, the clergy, finding it impossible to root out the municipal law, began to withdraw themselves by degrees from the temporal courts; and to that end, very early in the reign of king Henry the third, episcopal constitutions were published[34], forbidding all ecclesiastics to appear as advocates in foro saeculari; nor did they long continue to act as judges there, not caring to take the oath of office which was then found necessary to be administred, that they should in all things determine according to the law and custom of this realm[35]; though they still kept possession of the high office of chancellor, an office then of little juridical power; and afterwards, as it’s business increased by degrees, they modelled the process of the court at their own discretion.
But wherever they retired, and wherever their authority extended, they carried with them the same zeal to introduce the rules of the civil, in exclusion of the municipal law. This appears in a particular manner from the spiritual courts of all denominations, from the chancellor’s courts in both our universities, and from the high court of chancery before-mentioned; in all of which the proceedings are to this day in a course much conformed to the civil law: for which no tolerable reason can be assigned, unless that these courts were all under the immediate direction of the popish ecclesiastics, among whom it was a point of religion to exclude the municipal law; pope Innocent the fourth having forbidden[36] the very reading of it by the clergy, because it’s decisions were not founded on the imperial constitutions, but merely on the customs of the laity. And if it be considered, that our universities began about that period to receive their present form of scholastic discipline; that they were then, and continued to be till the time of the reformation, entirely under the influence of the popish clergy; (sir John Mason the first protestant, being also the first lay, chancellor of Oxford) this will lead us to perceive the reason, why the study of the Roman laws was in those days of bigotry[37] pursued with such alacrity in these seats of learning; and why the common law was entirely despised, and esteemed little better than heretical.
And, since the reformation, many causes have conspired to prevent it’s becoming a part of academical education. As, first, long usage and established custom; which, as in every thing else, so especially in the forms of scholastic exercise, have justly great weight and authority. Secondly, the real intrinsic merit of the civil law, considered upon the footing of reason and not of obligation, which was well known to the instructors of our youth; and their total ignorance of the merit of the common law, though it’s equal at least, and perhaps an improvement on the other. But the principal reason of all, that has hindered the introduction of this branch of learning, is, that the study of the common law, being banished from hence in the times of popery, has fallen into a quite different chanel, and has hitherto been wholly cultivated in another place. But as this long usage and established custom, of ignorance in the laws of the land, begin now to be thought unreasonable; and as by this means the merit of those laws will probably be more generally known, we may hope that the method of studying them will soon revert to it’s antient course, and the foundations at least of that science will be laid in the two universities; without being exclusively confined to the chanel which it fell into at the times I have been just describing.
For, being then entirely abandoned by the clergy, a few stragglers excepted, the study and practice of it devolved of course into the hands of laymen; who entertained upon their parts a most hearty aversion to the civil law[38], and made no scruple to profess their contempt, nay even their ignorance[39] of it, in the most public manner. But still, as the ballance of learning was greatly on the side of the clergy, and as the common law was no longer taught, as formerly, in any part of the kingdom, it must have been subjected to many inconveniences, and perhaps would have been gradually lost and overrun by the civil, (a suspicion well justified from the frequent transcripts of Justinian to be met with in Bracton and Fleta) had it not been for a peculiar incident, which happened at a very critical time, and contributed greatly to it’s support.
The incident I mean was the fixing the court of common pleas, the grand tribunal for disputes of property, to be held in one certain spot; that the seat of ordinary justice might be permanent and notorious to all the nation. Formerly that, in conjunction with all the other superior courts, was held before the king’s capital justiciary of England, in the aula regis, or such of his palaces wherein his royal person resided; and removed with his houshold from one end of the kingdom to the other. This was found to occasion great inconvenience to the suitors; to remedy which it was made an article of the great charter of liberties, both that of king John and king Henry the third[40], that “common pleas should no longer follow the king’s court, but be held in some certain place:” in consequence of which they have ever since been held (a few necessary removals in times of the plague excepted) in the palace of Westminster only. This brought together the professors of the municipal law, who before were dispersed about the kingdom, and formed them into an aggregate body; whereby a society was established of persons, who (as Spelman[41] observes) addicting themselves wholly to the study of the laws of the land, and no longer considering it as a mere subordinate science for the amusement of leisure hours, soon raised those laws to that pitch of perfection, which they suddenly attained under the auspices of our English Justinian, king Edward the first.
In consequence of this lucky assemblage, they naturally fell into a kind of collegiate order, and, being excluded from Oxford and Cambridge, found it necessary to establish a new university of their own. This they did by purchasing at various times certain houses (now called the inns of court and of chancery) between the city of Westminster, the place of holding the king’s courts, and the city of London; for advantage of ready access to the one, and plenty of provisions in the other[42]. Here exercises were performed, lectures read, and degrees were at length conferred in the common law, as at other universities in the canon and civil. The degrees were those of barristers (first stiled apprentices[43] from apprendre, to learn) who answered to our bachelors; as the state and degree of a serjeant[44], servientis ad legem, did to that of doctor.
The crown seems to have soon taken under it’s protection this infant seminary of common law; and, the more effectually to foster and cherish it, king Henry the third in the nineteenth year of his reign issued out an order directed to the mayor and sheriffs of London, commanding that no regent of any law schools within that city should for the future teach law therein[45]. The word, law, or leges, being a general term, may create some doubt at this distance of time whether the teaching of the civil law, or the common, or both, is hereby restrained. But in either case it tends to the same end. If the civil law only is prohibited, (which is Mr Selden’s[46] opinion) it is then a retaliation upon the clergy, who had excluded the common law from their seats of learning. If the municipal law be also included in the restriction, (as sir Edward Coke[47] understands it, and which the words seem to import) then the intention is evidently this; by preventing private teachers within the walls of the city, to collect all the common lawyers into the one public university, which was newly instituted in the suburbs.
In this juridical university (for such it is insisted to have been by Fortescue[48] and sir Edward Coke[49]) there are two sorts of collegiate houses, one called inns of chancery, in which the younger students of the law were usually placed, “learning and studying, says Fortescue[50], the originals and as it were the elements of the law; who, profiting therein, as they grew to ripeness so were they admitted into the greater inns of the same study, called the inns of court.” And in these inns of both kinds, he goes on to tell us, the knights and barons, with other grandees and noblemen of the realm, did use to place their children, though they did not desire to have them thoroughly learned in the law, or to get their living by it’s practice: and that in his time there were about two thousand students at these several inns, all of whom he informs us were filii nobilium, or gentlemen born.
Hence it is evident, that (though under the influence of the monks our universities neglected this study, yet) in the time of Henry the sixth it was thought highly necessary and was the universal practice, for the young nobility and gentry to be instructed in the originals and elements of the laws. But by degrees this custom has fallen into disuse; so that in the reign of queen Elizabeth sir Edward Coke[51] does not reckon above a thousand students, and the number at present is very considerably less. Which seems principally owing to these reasons: first, because the inns of chancery being now almost totally filled by the inferior branch of the profession, they are neither commodious nor proper for the resort of gentlemen of any rank or figure; so that there are very rarely any young students entered at the inns of chancery: secondly, because in the inns of court all sorts of regimen and academical superintendance, either with regard to morals or studies, are found impracticable and therefore entirely neglected: lastly, because persons of birth and fortune, after having finished their usual courses at the universities, have seldom leisure or resolution sufficient to enter upon a new scheme of study at a new place of instruction. Wherefore few gentlemen now resort to the inns of court, but such for whom the knowlege of practice is absolutely necessary; such, I mean, as are intended for the profession: the rest of our gentry, (not to say our nobility also) having usually retired to their estates, or visited foreign kingdoms, or entered upon public life, without any instruction in the laws of the land; and indeed with hardly any opportunity of gaining instruction, unless it can be afforded them in these seats of learning.
And that these are the proper places, for affording assistances of this kind to gentlemen of all stations and degrees, cannot (I think) with any colour of reason be denied. For not one of the objections, which are made to the inns of court and chancery, and which I have just enumerated, will hold with regard to the universities. Gentlemen may here associate with gentlemen of their own rank and degree. Nor are their conduct and studies left entirely to their own discretion; but regulated by a discipline so wise and exact, yet so liberal, so sensible and manly, that their conformity to it’s rules (which does at present so much honour to our youth) is not more the effect of constraint, than of their own inclinations and choice. Neither need they apprehend too long an avocation hereby from their private concerns and amusements, or (what is a more noble object) the service of their friends and their country. This study will go hand in hand with their other pursuits: it will obstruct none of them; it will ornament and assist them all.
But if, upon the whole, there are any still wedded to monastic prejudice, that can entertain a doubt how far this study is properly and regularly academical, such persons I am afraid either have not considered the constitution and design of an university, or else think very meanly of it. It must be a deplorable narrowness of mind, that would confine these seats of instruction to the limited views of one or two learned professions. To the praise of this age be it spoken, a more open and generous way of thinking begins now universally to prevail. The attainment of liberal and genteel accomplishments, though not of the intellectual sort, has been thought by our wisest and most affectionate patrons[52], and very lately by the whole university[53], no small improvement of our antient plan of education; and therefore I may safely affirm that nothing (how unusual soever) is, under due regulations, improper to be taught in this place, which is proper for a gentleman to learn. But that a science, which distinguishes the criterions of right and wrong; which teaches to establish the one, and prevent, punish, or redress the other; which employs in it’s theory the noblest faculties of the soul, and exerts in it’s practice the cardinal virtues of the heart; a science, which is universal in it’s use and extent, accommodated to each individual, yet comprehending the whole community; that a science like this should have ever been deemed unnecessary to be studied in an university, is matter of astonishment and concern. Surely, if it were not before an object of academical knowlege, it was high time to make it one; and to those who can doubt the propriety of it’s reception among us (if any such there be) we may return an answer in their own way; that ethics are confessedly a branch of academical learning, and Aristotle himself has said, speaking of the laws of his own country, that jurisprudence or the knowlege of those laws is the principal and most perfect branch of ethics[54].
From a thorough conviction of this truth, our munificent benefactor Mr Viner, having employed above half a century in amassing materials for new-modelling and rendering more commodious the rude study of the laws of the land, consigned both the plan and execution of these his public-spirited designs to the wisdom of his parent university. Resolving to dedicate his learned labours “to the benefit of posterity and the perpetual service of his country[55],” he was sensible he could not perform his resolutions in a better and more effectual manner, than by extending to the youth of this place those assistances, of which he so well remembered and so heartily regretted the want. And the sense, which the university has entertained of this ample and most useful benefaction, must appear beyond a doubt from their gratitude in receiving it with all possible marks of esteem[56]; from their alacrity and unexampled dispatch in carrying it into execution[57]; and, above all, from the laws and constitutions by which they have effectually guarded it from the neglect and abuse to which such institutions are liable[58]. We have seen an universal emulation, who best should understand, or most faithfully pursue, the designs of our generous patron: and with pleasure we recollect, that those who are most distinguished by their quality,
their fortune, their station, their learning, or their experience, have appeared the most zealous to promote the success of Mr Viner’s establishment.
The advantages that might result to the science of the law itself, when a little more attended to in these seats of knowlege, perhaps would be very considerable. The leisure and abilities of the learned in these retirements might either suggest expedients, or execute those dictated by wiser heads[59], for improving it’s method, retrenching it’s superfluities, and reconciling the little contrarieties, which the practice of many centuries will necessarily create in any human system: a task, which those who are deeply employed in business, and the more active scenes of the profession, can hardly condescend to engage in. And as to the interest, or (which is the same) the reputation of the universities themselves, I may venture to pronounce, that if ever this study should arrive to any tolerable perfection either here or at Cambridge, the nobility and gentry of this kingdom would not shorten their residence upon this account, nor perhaps entertain a worse opinion of the benefits of academical education. Neither should it be considered as a matter of light importance, that while we thus extend the pomoeria of university learning, and adopt a new tribe of citizens within these philosophical walls, we interest a
very numerous and very powerful profession in the preservation of our rights and revenues.
For I think it past dispute that those gentlemen, who resort to the inns of court with a view to pursue the profession, will find it expedient (whenever it is practicable) to lay the previous foundations of this, as well as every other science, in one of our learned universities. We may appeal to the experience of every sensible lawyer, whether any thing can be more hazardous or discouraging than the usual entrance on the study of the law. A raw and unexperienced youth, in the most dangerous season of life, is transplanted on a sudden into the midst of allurements to pleasure, without any restraint or check but what his own prudence can suggest; with no public direction in what course to pursue his enquiries; no private assistance to remove the distresses and difficulties, which will always embarass a beginner. In this situation he his expected to sequester himself from the world, and by a tedious lonely process to extract the theory of law from a mass of undigested learning; or else by an assiduous attendance on the courts to pick up theory and practice together, sufficient to qualify him for the ordinary run of business. How little therefore is it to be wondered at, that we hear of so frequent miscarriages; that so many gentlemen of bright imaginations grow weary of so unpromising a search[60], and addict themselves wholly to amusements, or other less innocent pursuits; and that so many persons of moderate capacity confuse themselves at first setting out, and continue ever dark and puzzled during the remainder of their lives!
The evident want of some assistance in the rudiments of legal knowlege has given birth to a practice, which, if ever it had grown to be general, must have proved of extremely pernicious consequence: I mean the custom, by some so very warmly recommended, to drop all liberal education, as of no use to students in the law; but to place them, in it’s stead, at the desk of some skilful attorney; in order to initiate them early in all the depths of practice, and render them more dextrous in the mechanical part of business. A few instances of particular persons, (men of excellent learning, and unblemished integrity) who, in spight of this method of education, have shone in the foremost ranks of the bar, have afforded some kind of sanction to this illiberal path to the profession, and biassed many parents, of shortsighted judgment, in it’s favour: not considering, that there are some geniuses, formed to overcome all disadvantages, and that from such particular instances no general rules can be formed; nor observing, that those very persons have frequently recommended by the most forcible of all examples, the disposal of their own offspring, a very different foundation of legal studies, a regular academical education. Perhaps too, in return, I could now direct their eyes to our principal seats of justice, and suggest a few hints, in favour of university learning[61]:—but in these all who hear me, I know, have already prevented me.
Making therefore due allowance for one or two shining exceptions, experience may teach us to foretell that a lawyer thus educated to the bar, in subservience to attorneys and solicitors[62], will find he has begun at the wrong end. If practice be the whole he is taught, practice must also be the whole he will ever know: if he be uninstructed in the elements and first principles upon which the rule of practice is founded, the least variation from established precedents will totally distract and bewilder him: ita lex scripta est[63] is the utmost his knowlege will arrive at; he must never aspire to form, and seldom expect to comprehend, any arguments drawn a priori, from the spirit of the laws and the natural foundations of justice.
Nor is this all; for (as few persons of birth, or fortune, or even of scholastic education, will submit to the drudgery of servitude and the manual labour of copying the trash of an office) should this infatuation prevail to any considerable degree, we must rarely expect to see a gentleman of distinction or learning at the bar. And what the consequence may be, to have the interpretation and enforcement of the laws (which include the entire disposal of our properties, liberties, and lives) fall wholly into the hands of obscure or illiterate men, is matter of very public concern.
The inconveniences here pointed out can never be effectually prevented, but by making academical education a previous step to the profession of the common law, and at the same time making the rudiments of the law a part of academical education. For sciences are of a sociable disposition, and flourish best in the neighbourhood of each other: nor is there any branch of learning, but may be helped and improved by assistances drawn from other arts. If therefore the student in our laws hath formed both his sentiments and style, by perusal and imitation of the purest classical writers, among whom the historians and orators will best deserve his regard; if he can reason with precision, and separate argument from fallacy, by the clear simple rules of pure unsophisticated logic; if he can fix his attention, and steadily pursue truth through any the most intricate deduction, by the use of mathematical demonstrations; if he has enlarged his conceptions of nature and art, by a view of the several branches of genuine, experimental, philosophy; if he has impressed on his mind the sound maxims of the law of nature, the best and most authentic foundation of human laws; if, lastly, he has contemplated those maxims reduced to a practical system in the laws of imperial Rome; if he has done this or any part of it, (though all may be easily done under as able instructors as ever graced any seats of learning) a student thus qualified may enter upon the study of the law with incredible advantage and reputation. And if, at the conclusion, or during the acquisition of these accomplishments, he will afford himself here a year or two’s farther leisure, to lay the foundation of his future labours in a solid scientifical method, without thirsting too early to attend that practice which it is impossible he should rightly comprehend, he will afterwards proceed with the greatest ease, and will unfold the most intricate points with an intuitive rapidity and clearness.
I shall not insist upon such motives as might be drawn from principles of oeconomy, and are applicable to particulars only: I reason upon more general topics. And therefore to the qualities of the head, which I have just enumerated, I cannot but add those of the heart; affectionate loyalty to the king, a zeal for liberty and the constitution, a sense of real honour, and well grounded principles of religion; as necessary to form a truly valuable English lawyer, a Hyde, a Hale, or a Talbot. And, whatever the ignorance of some, or unkindness of others, may have heretofore untruly suggested, experience will warrant us to affirm, that these endowments of loyalty and public spirit, of honour and religion, are no where to be found in more high perfection than in the two universities of this kingdom.
Before I conclude, it may perhaps be expected, that I lay before you a short and general account of the method I propose to follow, in endeavouring to execute the trust you have been pleased to repose in my hands. And in these solemn lectures, which are ordained to be read at the entrance of every term, (more perhaps to do public honour to this laudable institution, than for the private instruction of individuals[64]) I presume it will best answer the intent of our benefactor and the expectation of this learned body, if I attempt to illustrate at times such detached titles of the law, as are the most easy to be understood, and most capable of historical or critical ornament. But in reading the complete course, which is annually consigned to my care, a more regular method will be necessary; and, till a better is proposed, I shall take the liberty to follow the same that I have already submitted to the public[65]. To fill up and finish that outline with propriety and correctness, and to render the whole intelligible to the uninformed minds of beginners, (whom we are too apt to suppose acquainted with terms and ideas, which they never had opportunity to learn) this must be my ardent endeavour, though by no means my promise to accomplish. You will permit me however very briefly to describe, rather what I conceive an academical expounder of the laws should do, than what I have ever known to be done.
He should consider his course as a general map of the law, marking out the shape of the country, it’s connexions and boundaries, it’s greater divisions and principal cities: it is not his business to describe minutely the subordinate limits, or to fix the longitude and latitude of every inconsiderable hamlet. His attention should be engaged, like that of the readers in Fortescue’s inns of chancery, “in tracing out the originals and as it were the elements of the law.” For if, as Justinian[66] has observed, the tender understanding of the student be loaded at the first with a multitude and variety of matter, it will either occasion him to desert his studies, or will carry him heavily through them, with much labour, delay, and despondence. These originals should be traced to their fountains, as well as our distance will permit; to the customs of the Britons and Germans, as recorded by Caesar and Tacitus; to the codes of the northern nations on the continent, and more especially to those of our own Saxon princes; to the rules of the Roman law, either left here in the days of Papinian, or imported by Vacarius and his followers; but, above all, to that inexhaustible reservoir of legal antiquities and learning, the feodal law, or, as Spelman[67] has entitled it, the law of nations in our western orb. These primary rules and fundamental principles should be weighed and compared with the precepts of the law of nature, and the practice of other countries; should be explained by reasons, illustrated by examples, and confirmed by undoubted authorities; their history should be deduced, their changes and revolutions observed, and it should be shewn how far they are connected with, or have at any time been affected by, the civil transactions of the kingdom.
A plan of this nature, if executed with care and ability, cannot fail of administring a most useful and rational entertainment to students of all ranks and professions; and yet it must be confessed that the study of the laws is not merely a matter of amusement: for, as a very judicious writer[68] has observed upon a similar occasion, the learner “will be considerably disappointed if he looks for entertainment without the expense of attention.” An attention, however, not greater than is usually bestowed in mastering the rudiments of other sciences, or sometimes in pursuing a favorite recreation or exercise. And this attention is not equally necessary to be exerted by every student upon every occasion. Some branches of the law, as the formal process of civil suits, and the subtile distinctions incident to landed property, which are the most difficult to be thoroughly understood, are the least worth the pains of understanding, except to such gentlemen as intend to pursue the profession. To others I may venture to apply, with a slight alteration, the words of sir John Fortescue[69], when first his royal pupil determines to engage in this study. “It will not be necessary for a gentleman, as such, to examine with a close application the critical niceties of the law. It will fully be sufficient, and he may well enough be denominated a lawyer, if under the instruction of a master he traces up the principles and grounds of the law, even to their original elements. Therefore in a very short period, and with very little labour, he may be sufficiently informed in the laws of his country, if he will but apply his mind in good earnest to receive and apprehend them. For, though such knowlege as is necessary for a judge is hardly to be acquired by the lucubrations of twenty years, yet with a genius of tolerable perspicacity, that knowlege which is fit for a person of birth or condition may be learned in a single year, without neglecting his other improvements.”
To the few therefore (the very few, I am persuaded,) that entertain such unworthy notions of an university, as to suppose it intended for mere dissipation of thought; to such as mean only to while away the aukward interval from childhood to twenty one, between the restraints of the school and the licentiousness of politer life, in a calm middle state of mental and of moral inactivity; to these Mr Viner gives no invitation to an entertainment which they never can relish. But to the long and illustrious train of noble and ingenuous youth, who are not more distinguished among us by their birth and possessions, than by the regularity of their conduct and their thirst after useful knowlege, to these our benefactor has consecrated the fruits of a long and laborious life, worn out in the duties of his calling; and will joyfully reflect (if such reflexions can be now the employment of his thoughts) that he could not more effectually have benefited posterity, or contributed to the service of the public, than by founding an institution which may instruct the rising generation in the wisdom of our civil polity, and inform them with a desire to be still better acquainted with the laws and constitution of their country.
↑ Read in Oxford at the opening of the Vinerian lectures; 25 Oct. 1758.
↑ De Legg. 2. 23.
↑ Montesq. Esp. L. l. 11. c. 5.
↑ Facultas ejus, quod cuique facere libet, nisi quid vi, aut jure prohibetur. Inst. 1. 3. 1.
↑ Education. §. 187.
↑ De Legg. 3. 18. Est senatori necessarium nosse rempublicam;idque late patet:—genus hoc omne scientiae, diligentiae, memoriae est; sine quo paratus esse senator nullo pacto potest.
↑ 2 Rep. Pref.
↑ Ff. 1. 2. 2. §. 43. Turpe esse patricio, et nobili, et causas oranti, jus in quo versaretur ignorare.
↑ Brut. 41.
↑ Dedicatio corporis juris civilis. Edit. 1663.
↑ Hale. Hist. C. L. c. 2. Selden in Fletam. 5 Rep. Caudrey’s case. 2 Inst. 599.
↑ Tit. VII. Sect. 2. §. 2.
↑ Doctor legum mox a doctoratu dabit operam legibus Angliae, ut non sit imperitus earum legum quas habet sua patria, et differentias exteri patriique juris noscat. Stat. Eliz. R. c. 14. Cowel. Institut. in proëmio.
↑ c. 47.
↑ c. 48.
↑ in Fletam. 7. 7.
↑ Caesar. de bello Gal. 6. 12.
↑ de gest. reg. l. 4.
↑ Dugdale Orig. jurid. c. 8.
↑ Les juges sont sages personnes et autentiques,—sicome les archevesques, evesques, les chanoines les eglises cathedraulx, et les autres personnes qui ont dignitez in saincte eglise; les abbez, les prieurs conventaulx, et les gouverneurs des eglises, &c. Grand Coustumier, ch. 9.
↑ circ. A. D. 1130.
↑ LL. Wisigoth. 2. 1. 9.
↑ Capitular. Hludov. Pii. 4. 102.
↑ Selden in Fletam. 5. 5.
↑ Domat’s treatise of law. c. 13. §. 9. Epistol. Innocent IV. in M. Paris. ad A. D. 1254.
↑ A. D. 1138.
↑ Gervas. Dorobern. Act. Pontif. Cantuar. col. 1665.
↑ Rog. Bacon. citat. per Selden. in Fletam. 7. 6. in Fortesc. c. 33. & 8 Rep. Pref.
↑ Joan. Sarisburiens. Polycrat. 8. 22.
↑ Idem, ibid. 5. 16. Polydor. Vergil. Hist. l. 9.
↑ Stat. Merton. 20 Hen. III. c. 9. Et omnes comites et barones una voce responderunt, quod nolunt leges Angliae mutare, quae bucusque usitatae sunt et approbatae.
↑ 11 Ric.
↑ Selden. Jan. Anglor. l. 2. §. 43. in Fortesc. c. 33.
↑ Spelman. Concil. A. D. 1217. Wilkins, vol 1. p. 574, 599.
↑ Selden. in Fletam. 9. 3.
↑ M. Paris ad A. D. 1254.
↑ There cannot be a stronger instance of the absurd and superstitious veneration that was paid to these laws, than that the most learned writers of the times thought they could not form a perfect character, even of the blessed virgin, without making her a civilian and a canonist. Which Albertus Magnus, the renowned dominican doctor of the thirteenth century, thus proves in his Summa de laudibus christiferae virginis (divinum magis quam humanum opus) qu. 23. §. 5. “Item quod jura civilia, & leges, & decreta scivit in summo, probatur hoc modo; sapientia advocati manifestatur in tribus; unum, quod obtineat omnia contra judicem justum & sapientem; secundo, quod contra adversarium astutum & sagacem; tertio, quod in causa desperata: sed beatissima virgo, contra judicem sapientissimum, Dominum; contra adversarium callidissimum, dyabolum; in causa nostra desperata; sententiam optatam obtinuit.” To which an eminent franciscan, two centuries afterwards, Bernardinus de Busti (Mariale, part. 4 serm. 9.) very gravely subjoins this note. “Nec videtur incongruum mulieres habere peritiam juris. Legitur enim de uxore Joannis Andreae glossatoris, quod tantam peritiam in utroque jure habuit, ut publice in scholis legere ausa sit.”
↑ Fortesc. de laud. LL. c. 25.
↑ This remarkably appeared in the case of the abbot of Torun, M. 22 Edw. III. 24. who had caused a certain prior to be summoned to answer at Avignon for erecting an oratory contra inhibitionem novi operis; by which words Mr Selden, (in Flet. 8. 5.) very justly understands to be meant the title de novi operis nuntiatione both in the civil and canon laws, (Ff. 39. 1. C. 8. 11. and Decretal. not Extrav. 5. 32.) whereby the erection of any new buildings in prejudice of more antient ones was prohibited. But Skipwith the king’s serjeant, and afterwards chief baron of the exchequer, declares them to be flat nonsense; “in ceux parolx, contra inhibitionem novi operis, ny ad pas entendment:” and justice Schardelow mends the matter but little by informing him, that they signify a restitution in their law; for which reason he very sagely resolves to pay no sort of regard to them. “Ceo n’est que un restitution en lour ley, pur que a ceo n’avomus regard, &c.”
↑ c. 11
↑ Glossar. 334.
↑ Fortesc. c. 48.
↑ Apprentices or barristers seem to have been first appointed by an ordinance of king Edward the first in parliament, in the 20th year of his reign. (Spelm. Gloss. 37. Dugdale. Orig. jurid. 55.)
↑ The first mention which I have met with in our lawbooks of serjeants or countors, is in the s and in Horn’s Mirror, c. 1. §. 10. c. 2. §. 5. c. 3. §. 1. in the same reign. But M. Paris in his life of John II, abbot of St. Alban’s, which he wrote in 1255, 39 Hen. III. speaks of advocates at the common law, or countors (quos banci narratores vulgariter appellamus) as of an order of men well known. And we have an example of the antiquity of the coif in the same author’s history of England, A. D. 1259. in the case of one William de Buffy; who, being called to account for his great knavery and malpractices, claimed the benefit of his orders or clergy, which till then remained an entire secret; and to that end voluit ligamenta coifae suae solvere, ut palam monstraret se tonsuram habere clericalem; sed non est permissus.—Satelles vero eum arripiens, non per coifae ligamina sed per guttur eum apprehendens, traxit ad carcerem. And hence sir H. Spelman conjectures, (Glossar. 335) that coifs were introduced to hide the tonsure of such renegade clerks, as were still tempted to remain in the secular courts in the quality of advocates or judges, notwithstanding their prohibition by canon.
↑ Ne aliquis scholas regens de legibus in eadem civitate de caetero ibidem leges doceat.
↑ in Flet. 8. 2.
↑ 2 Inst. proëm.
↑ c. 49.
↑ 3 Rep. pref.
↑ ibid.
↑ ibid.
↑ Lord chancellor Clarendon, in his dialogue of education, among his tracts, p. 325, appears to have been very solicitous, that it might be made “a part of the ornament of our learned academies to teach the qualities of riding, dancing, and fencing, at those hours when more serious exercises should be intermitted.”
↑ By accepting in full convocation the remainder of lord Clarendon’s history from his noble descendants, on condition to apply the profits arising from it’s publication to the establishment of a manage in the university.
↑ Τελεια μαλιστα αζειη, οτι της τελειας αρειης χζησις εσι. Ethic. ad Nichomach. l. 5. c. 3.
↑ See the preface to the eighteenth volume of his abridgment.
↑ Mr Viner is enrolled among the public benefactors of the university by decree of convocation.
↑ Mr Viner died June 5, 1756. His effects were collected and settled, near a volume of his work printed, almost the whole disposed of, and the accounts made up, in a year and a half from his decease, by the very diligent and worthy administrators with the will annexed, (Dr West and Dr Good of Magdalene, Dr Whalley of Oriel, Mr Buckler of All Souls, and Mr Belts of University college) to whom that care was consigned by the university. Another half year was employed in considering and settling a plan of the proposed institution, and in framing the statutes thereupon, which were finally confirmed by convocation on the 3d of July, 1758. The professor was elected on the 20th of October following, and two scholars on the succeeding day. And, lastly, it was agreed at the annual audit in 1761, to establish a fellowship; and a fellow was accordingly elected in January following.—The residue of this fund, arising from the sale of Mr Viner’s abridgment, will probably be sufficient hereafter to found another fellowship and scholarship, or three more scholarships, as shall be thought most expedient.
↑ The statutes are in substance as follows:
1. That the accounts of this benefaction be separately kept, and annually audited by the delegates of accounts and professor, and afterwards reported to convocation.
2. That a professorship of the laws of England be established, with a salary of two hundred pounds per annum; the professor to be elected by convocation, and to be at the time of his election at least a master of arts or bachelor of civil law in the university of Oxford, of ten years standing from his matriculation; and also a barrister at law of four years standing at the bar.
3. That such professor (by himself, or by deputy to be previously approved by convocation) do read one solemn public lecture on the laws of England, and in the English language, in every academical term, at certain stated times previous to the commencement of the common law term; or forfeit twenty pounds for every omission to Mr Viner’s general fund: and also (by himself, or by deputy to be approved, if occasional, by the vice-chancellor and proctors; or, if permanent, both the cause and the deputy to be annually approved by convocation) do yearly read one complete course of lectures on the laws of England, and in the English language, consisting of sixty lectures at the least; to be read during the university term time, with such proper intervals that not more than four lectures may fall within any single week: that the professor do give a month’s notice of the time when the course is to begin, and do read gratis to the scholars of Mr Viner’s foundation; but may demand of other auditors such gratuity as shall be settled from time to time by decree of convocation: and that, for every of the said sixty lectures omitted, the professor, on complaint made to the vice-chancellor within the year, do forfeit forty shillings to Mr Viner’s general fund; the proof of having performed his duty to lie upon the said professor.
4. That every professor do continue in his office during life, unless in case of such misbehaviour as shall amount to bannition by the university statutes; or unless he deserts the profession of the law by betaking himself to another profession; or unless, after one admonition by the vice-chancellor and proctors for notorious neglect, he is guilty of another flagrant omission: in any of which cases he be deprived by the vice-chancellor, with consent of the house of convocation.
5. That such a number of fellowships with a stipend of fifty pounds per annum, and scholarships with a stipend of thirty pounds, be established, as the convocation shall from time to time ordain, according to the state of Mr Viner’s revenues.
6. That every fellow be elected by convocation, and at the time of election be unmarried, and at least a master of arts or bachelor of civil law, and a member of some college or hall in the university of Oxford; the scholars of this foundation or such as have been scholars (if qualified and approved of by convocation) to have the preference: that, if not a barrister when chosen, he be called to the bar within one year after his election; but do reside in the university two months in every year, or in case of non-residence do forfeit the stipend of that year to Mr Viner’s general fund.
7. That every scholar be elected by convocation, and at the time of election be unmarried, and a member of some college or hall in the university of Oxford, who shall have been matriculated twenty four calendar months at the least: that he do take the degree of bachelor of civil law with all convenient speed; (either proceeding in arts or otherwise) and previous to his taking the same, between the second and eighth year from his matriculation, be bound to attend two courses of the professor’s lectures, to be certified under the professor’s hand; and within one year after taking the same to be called to the bar: that he do annually reside six months till he is of four years standing, and four months from that time till he is master of arts or bachelor of civil law; after which he be bound to reside two months in every year; or, in case of non-residence, do forfeit the stipend of that year to Mr Viner’s general fund.
8. That the scholarships do become void in case of non-attendance on the professor, or not taking the degree of bachelor of civil law, being duly admonished so to do by the vice-chancellor and proctors: and that both fellowships and scholarships do expire at the end of ten years after each respective election; and become void in case of gross misbehavior, non-residence for two years together, marriage, not being called to the bar within the time before limited (being duly admonished so to be by the vice-chancellor, and proctors) or deserting the profession of the law by following any other profession: and that in any of these cases the vice-chancellor, with consent of convocation, do declare the place actually void.
9. That in case of any vacancy of the professorship, fellowships, or scholarships, the profits of the current year be ratably divided between the predecessor or his representatives, and the successor; and that a new election be had within one month afterwards, unless by that means the time of election shall fall within any vacation, in which case it be deferred to the first week in the next full term. And that before any convocation shall be held for such election, or for any other matter relating to Mr. Viner’s benefaction, ten days public notice be given to each college and hall of the convocation, and the cause of convoking it.
↑ See lord Bacon’s proposals and offer of a digest.
↑ Sir Henry Spelman, in the preface to his glossary, has given us a very lively picture of his own distress upon this occasion. “Emisit me mater Londinum, juris nostri capessendi gratia; cujus cum vestibulum salutassem, reperissemque linguam peregrinam, dialectum barbaram, methodum inconcinnam, molem non ingentem solum sed perpetuis humeris sustinendam, excidit mihi (fateor) animus, &c.”
↑ The four highest judicial offices were at that time filled by gentlemen, two of whom had been fellows of All Souls college; another, student of Christ-Church; and the fourth a fellow of Trinity college, Cambridge.
↑ See Kennet’s life of Somner. p. 67.
↑ Ff. 40. 9. 12.
↑ See Lowth’s Oratio Crewiana, p. 365.
↑ The Analysis of the laws of England, first published, A. D. 1756, and exhibiting the order and principal divisions of the ensuing Commentaries; which were originally submitted to the university in a private course of lectures, A. D. 1753.
↑ Incipientibus nobis exponere jura populi Romani, ita videntur tradi posse commodissime, si primo levi ac simplici via singula trandatur: Alioqui, si statim ab initio rudem adhuc et infirmum animum studiosi multitudine ac varietate rerum oneravimus, duorum alterum, aut desertorem studiorum efficiemus, aut cum magno labore, saepe etiam cum diffidentia (quae plerumque juvenes avertit) serius ad id perducemus, ad quod, leviore via ductus, sine magno labore et sine ulla diffidentia maturius perduci potuisset. Inst. 1. 1. 2.
↑ Of parliaments. 57.
↑ Dr Taylor’s pref. to Elem. of civil law.
↑ Tibi, princeps, necesse non erit mysteria legis Angliae longo disciplinatu rimare. Sufficiet tibi,—et fatis denominari legista mereberis, si legum principia et causas, usque ad elementa, discipuli more indagaveris.—Quare tu, princeps serenissime, parvo tempore, parva industria, sufficienter eris in legibus regni Angliae eruditus, dummodo ad ejus apprehensionem tu conferas animum tuum.—Nosco namque ingenii tui perspicacitatem, quo audacter pronuntio quod in legibus illis (licet earum peritia, qualis judicibus necessaria est, vix viginti annorum lucubrationibus acquiratur) tu doctrinum principi congruam in anno uno sufficienter nancisceris; nec interim militarem disciplinam, ad quam tam ardenter anhelas, negliges; sed ea, recreationis loco, etiam anno illo tu ad libitum perfrueris. c. 8.
Section the second.
Of the Nature of Laws in general.
Law, in it’s most general and comprehensive sense, signifies a rule of action; and is applied indiscriminately to all kinds of action, whether animate or inanimate, rational or irrational. Thus we say, the laws of motion, of gravitation, of optics, or mechanics, as well as the laws of nature and of nations. And it is that rule of action, which is prescribed by some superior, and which the inferior is bound to obey.
Thus when the supreme being formed the universe, and created matter out of nothing, he impressed certain principles upon that matter, from which it can never depart, and without which it would cease to be. When he put that matter into motion, he established certain laws of motion, to which all moveable bodies must conform. And, to descend from the greatest operations to the smallest, when a workman forms a clock, or other piece of mechanism, he establishes at his own pleasure certain arbitrary laws for it’s direction; as that the hand shall describe a given space in a given time; to which law as long as the work conforms, so long it continues in perfection, and answers the end of it’s formation.
If we farther advance, from mere inactive matter to vegetable and animal life, we shall find them still governed by laws; more numerous indeed, but equally fixed and invariable. The whole progress of plants, from the seed to the root, and from thence to the seed again;—the method of animal nutrition, digestion, secretion, and all other branches of vital oeconomy;—are not left to chance, or the will of the creature itself, but are performed in a wondrous involuntary manner, and guided by unerring rules laid down by the great creator.
This then is the general signification of law, a rule of action dictated by some superior being; and in those creatures that have neither the power to think, nor to will, such laws must be invariably obeyed, so long as the creature itself subsists, for it’s existence depends on that obedience. But laws, in their more confined sense, and in which it is our present business to consider them, denote the rules, not of action in general, but of human action or conduct: that is, the precepts by which man, the noblest of all sublunary beings, a creature endowed with both reason and freewill, is commanded to make use of those faculties in the general regulation of his behaviour.
Man, considered as a creature, must necessarily be subject to the laws of his creator, for he is entirely a dependent being. A being, independent of any other, has no rule to pursue, but such as he prescribes to himself; but a state of dependance will inevitably oblige the inferior to take the will of him, on whom he depends, as the rule of his conduct: not indeed in every particular, but in all those points wherein his dependance consists. This principle therefore has more or less extent and effect, in proportion as the superiority of the one and the dependance of the other is greater or less, absolute or limited. And consequently, as man depends absolutely upon his maker for every thing, it is necessary that he should in all points conform to his maker’s will.
This will of his maker is called the law of nature. For as God, when he created matter, and endued it with a principle of mobility, established certain rules for the perpetual direction of that motion; so, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws.
Considering the creator only as a being of infinite power, he was able unquestionably to have prescribed whatever laws he pleased to his creature, man, however unjust or severe. But as he is also a being of infinite wisdom, he has laid down only such laws as were founded in those relations of justice, that existed in the nature of things antecedent to any positive precept. These are the eternal, immutable laws of good and evil, to which the creator himself in all his dispensations conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions. Such among others are these principles: that we should live honestly, should hurt nobody, and should render to every one his due; to which three general precepts Justinian[1] has reduced the whole doctrine of law.
But if the discovery of these first principles of the law of nature depended only upon the due exertion of right reason, and could not otherwise be attained than by a chain of metaphysical disquisitions, mankind would have wanted some inducement to have quickened their inquiries, and the greater part of the world would have rested content in mental indolence, and ignorance it’s inseparable companion. As therefore the creator is a being, not only of infinite power, and wisdom, but also of infinite goodness, he has been pleased so to contrive the constitution and frame of humanity, that we should want no other prompter to enquire after and pursue the rule of right, but only our own self-love, that universal principle of action. For he has so intimately connected, so inseparably interwoven the laws of eternal justice with the happiness of each individual, that the latter cannot be attained but by observing the former; and, if the former be punctually obeyed, it cannot but induce the latter. In consequence of which mutual connection of justice and human felicity, he has not perplexed the law of nature with a multitude of abstracted rules and precepts, referring merely to the fitness or unfitness of things, as some have vainly surmised; but has graciously reduced the rule of obedience to this one paternal precept, “that man should pursue his own happiness.” This is the foundation of what we call ethics, or natural law. For the several articles, into which it is branched in our systems, amount to no more than demonstrating, that this or that action tends to man’s real happiness, and therefore very justly concluding that the performance of it is a part of the law of nature; or, on the other hand, that this or that action is destructive of man’s real happiness, and therefore that the law of nature forbids it.
This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.
But in order to apply this to the particular exigencies of each individual, it is still necessary to have recourse to reason: whose office it is to discover, as was before observed, what the law of nature directs in every circumstance of life; by considering, what method will tend the most effectually to our own substantial happiness. And if our reason were always, as in our first ancestor before his transgression, clear and perfect, unruffled by passions, unclouded by prejudice, unimpaired by disease or intemperance, the task would be pleasant and easy; we should need no other guide but this. But every man now finds the contrary in his own experience; that his reason is corrupt, and his understanding full of ignorance and error.
This has given manifold occasion for the benign interposition of divine providence; which, in companion to the frailty, the imperfection, and the blindness of human reason, hath been pleased, at sundry times and in divers manners, to discover and enforce it’s laws by an immediate and direct revelation. The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures. These precepts, when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man’s felicity. But we are not from thence to conclude that the knowlege of these truths was attainable by reason, in it’s present corrupted state; since we find that, until they were revealed, they were hid from the wisdom of ages. As then the moral precepts of this law are indeed of the same original with those of the law of nature, so their intrinsic obligation is of equal strength and perpetuity. Yet undoubtedly the revealed law is of infinitely more authenticity than that moral system, which is framed by ethical writers, and denominated the natural law. Because one is the law of nature, expressly declared so to be by God himself; the other is only what, by the assistance of human reason, we imagine to be that law. If we could be as certain of the latter as we are of the former, both would have an equal authority: but, till then, they can never be put in any competition together.
Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. There is, it is true, a great number of indifferent points, in which both the divine law and the natural leave a man at his own liberty; but which are found necessary for the benefit of society to be restrained within certain limits. And herein it is that human laws have their greatest force and efficacy; for, with regard to such points as are not indifferent, human laws are only declaratory of, and act in subordination to, the former. To instance in the case of murder: this is expressly forbidden by the divine, and demonstrably by the natural law; and from these prohibitions arises the true unlawfulness of this crime. Those human laws, that annex a punishment to it, do not at all increase it’s moral guilt, or superadd any fresh obligation in foro conscientiae to abstain from it’s perpetration. Nay, if any human law should allow or injoin us to commit it, we are bound to transgress that human law, or else we must offend both the natural and the divine. But with regard to matters that are in themselves indifferent, and are not commanded or forbidden by those superior laws; such, for instance, as exporting of wool into foreign countries; here the inferior legislature has scope and opportunity to interpose, and to make that action unlawful which before was not so.
If man were to live in a state of nature, unconnected with other individuals, there would be no occasion for any other laws, than the law of nature, and the law of God. Neither could any other law possibly exist; for a law always supposes some superior who is to make it; and in a state of nature we are all equal, without any other superior but him who is the author of our being. But man was formed for society; and, as is demonstrated by the writers on this subject[2], is neither capable of living alone, nor indeed has the courage to do it. However, as it is impossible for the whole race of mankind to be united in one great society, they must necessarily divide into many; and form separate states, commonwealths, and nations; entirely independent of each other, and yet liable to a mutual intercourse. Hence arises a third kind of law to regulate this mutual intercourse, called “the law of nations;” which, as none of these states will acknowlege a superiority in the other, cannot be dictated by either; but depends entirely upon the rules of natural law, or upon mutual compacts, treaties, leagues, and agreements between these several communities: in the construction also of which compacts we have no other rule to resort to, but the law of nature; being the only one to which both communities are equally subject: and therefore the civil law[3] very justly observes, that quod naturalis ratio inter omnes homines constituit, vocatur jus gentium.
Thus much I thought it necessary to premise concerning the law of nature, the revealed law, and the law of nations, before I proceeded to treat more fully of the principal subject of this section, municipal or civil law; that is, the rule by which particular districts, communities, or nations are governed; being thus defined by Justinian[4], “jus civile est quod quisque sibi populus constituit.” I call it municipal law, in compliance with common speech; for, though strictly that expression denotes the particular customs of one single municipium or free town, yet it may with sufficient propriety be applied to any one state or nation, which is governed by the same laws and customs.
Municipal law, thus understood, is properly defined to be “a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong.” Let us endeavour to explain it’s several properties, as they arise out of this definition.
And, first, it is a rule; not a transient sudden order from a superior to or concerning a particular person; but something permanent, uniform, and universal. Therefore a particular act of the legislature to confiscate the goods of Titius, or to attaint him of high treason, does not enter into the idea of a municipal law: for the operation of this act is spent upon Titius only, and has no relation to the community in general; it is rather a sentence than a law. But an act to declare that the crime of which Titius is accused shall be deemed high treason; this has permanency, uniformity, and universality, and therefore is properly a rule. It is also called a rule, to distinguish it from advice or counsel, which we are at liberty to follow or not, as we see proper; and to judge upon the reasonableness or unreasonableness of the thing advised. Whereas our obedience to the law depends not upon our approbation, but upon the maker’s will. Counsel is only matter of persuasion, law is matter of injunction; counsel acts only upon the willing, law upon the unwilling also.
It is also called a rule, to distinguish it from a compact or agreement; for a compact is a promise proceeding from us, law is a command directed to us. The language of a compact is, “I will, or will not, do this;” that of a law is, “thou shalt, or shalt not, do it.” It is true there is an obligation which a compact carries with it, equal in point of conscience to that of a law; but then the original of the obligation is different. In compacts, we ourselves determine and promise what shall be done, before we are obliged to do it; in laws, we are obliged to act, without ourselves determining or promising any thing at all. Upon these accounts law is defined to be “a rule.”
Municipal law is also “a rule of civil conduct.” This distinguishes municipal law from the natural, or revealed; the former of which is the rule of moral conduct, and the latter not only the rule of moral conduct, but also the rule of faith. These regard man as a creature, and point out his duty to God, to himself, and to his neighbour, considered in the light of an individual. But municipal or civil law regards him also as a citizen, and bound to other duties towards his neighbour, than those of mere nature and religion: duties, which he has engaged in by enjoying the benefits of the common union; and which amount to no more, than that he do contribute, on his part, to the subsistence and peace of the society.
It is likewise “a rule prescribed.” Because a bare resolution, confined in the breast of the legislator, without manifesting itself by some external sign, can never be properly a law. It is requisite that this resolution be notified to the people who are to obey it. But the manner in which this notification is to be made, is matter of very great indifference. It may be notified by universal tradition and long practice, which supposes a previous publication, and is the case of the common law of England. It may be notified, viva voce, by officers appointed for that purpose, as is done with regard to proclamations, and such acts of parliament as are appointed to be publicly read in churches and other assemblies. It may lastly be notified by writing, printing, or the like; which is the general course taken with all our acts of parliament. Yet, whatever way is made use of, it is incumbent on the promulgators to do it in the most public and perspicuous manner; not like Caligula, who (according to Dio Cassius) wrote his laws in a very small character, and hung them up upon high pillars, the more effectually to ensnare the people. There is still a more unreasonable method than this, which is called making of laws ex post facto; when after an action (indifferent in itself) is committed, the legislator then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it; here it is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law; he had therefore no cause to abstain from it; and all punishment for not abstaining must of consequence be cruel and unjust[5]. All laws should be therefore made to commence in futuro, and be notified before their commencement; which is implied in the term “prescribed.” But when this rule is in the usual manner notified, or prescribed, it is then the subject’s business to be thoroughly acquainted therewith; for if ignorance, of what he might know, were admitted as a legitimate excuse, the laws would be of no effect, but might always be eluded with impunity.
But farther: municipal law is “a rule of civil conduct prescribed by the supreme power in a state.” For legislature, as was before observed, is the greatest act of superiority that can be exercised by one being over another. Wherefore it is requisite to the very essence of a law, that it be made by the supreme power. Sovereignty and legislature are indeed convertible terms; one cannot subsist without the other.
This will naturally lead us into a short enquiry concerning the nature of society and civil government; and the natural, inherent right that belongs to the sovereignty of a state, wherever that sovereignty be lodged, of making and enforcing laws.
The only true and natural foundations of society are the wants and the fears of individuals. Not that we can believe, with some theoretical writers, that there ever was a time when there was no such thing as society; and that, from the impulse of reason, and through a sense of their wants and weaknesses, individuals met together in a large plain, entered into an original contract, and chose the tallest man present to be their governor. This notion, of an actually existing unconnected state of nature, is too wild to be seriously admitted; and besides it is plainly contradictory to the revealed accounts of the primitive origin of mankind, and their preservation two thousand years afterwards; both which were effected by the means of single families. These formed the first society, among themselves; which every day extended it’s limits, and when it grew too large to subsist with convenience in that pastoral state, wherein the patriarchs appear to have lived, it necessarily subdivided itself by various migrations into more. Afterwards, as agriculture increased, which employs and can maintain a much greater number of hands, migrations became less frequent; and various tribes, which had formerly separated, reunited again; sometimes by compulsion and conquest, sometimes by accident, and sometimes perhaps by compact. But though society had not it’s formal beginning from any convention of individuals, actuated by their wants and their fears; yet it is the sense of their weakness and imperfection that keeps mankind together; that demonstrates the necessity of this union; and that therefore is the solid and natural foundation, as well as the cement, of society. And this is what we mean by the original contract of society; which, though perhaps in no instance it has ever been formally expressed at the first institution of a state, yet in nature and reason must always be understood and implied, in the very act of associating together: namely, that the whole should protect all it’s parts, and that every part should pay obedience to the will of the whole; or, in other words, that the community should guard the rights of each individual member, and that (in return for this protection) each individual should submit to the laws of the community; without which submission of all it was impossible that protection could be certainly extended to any.
For when society is once formed, government results of course, as necessary to preserve and to keep that society in order. Unless some superior were constituted, whose commands and decisions all the members are bound to obey, they would still remain as in a state of nature, without any judge upon earth to define their several rights, and redress their several wrongs. But, as all the members of society are naturally equal, it may be asked, in whose hands are the reins of government to be entrusted? To this the general answer is easy; but the application of it to particular cases has occasioned one half of those mischiefs which are apt to proceed from misguided political zeal. In general, all mankind will agree that government should be reposed in such persons, in whom those qualities are most likely to be found, the perfection of which are among the attributes of him who is emphatically stiled the supreme being; the three grand requisites, I mean, of wisdom, of goodness, and of power: wisdom, to discern the real interest of the community; goodness, to endeavour always to pursue that real interest; and strength, or power, to carry this knowlege and intention into action. These are the natural foundations of sovereignty, and these are the requisites that ought to be found in every well constituted frame of government.
How the several forms of government we now see in the world at first actually began, is matter of great uncertainty, and has occasioned infinite disputes. It is not my business or intention to enter into any of them. However they began, or by what right soever they subsist, there is and must be in all of them a supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperii, or the rights of sovereignty, reside. And this authority is placed in those hands, wherein (according to the opinion of the founders of such respective states, either expressly given, or collected from their tacit approbation) the qualities requisite for supremacy, wisdom, goodness, and power, are the most likely to be found.
The political writers of antiquity will not allow more than three regular forms of government; the first, when the sovereign power is lodged in an aggregate assembly consisting of all the members of a community, which is called a democracy; the second, when it is lodged in a council, composed of select members, and then it is stiled an aristocracy; the last, when it is entrusted in the hands of a single person, and then it takes the name of a monarchy. All other species of government, they say, are either corruptions of, or reducible to, these three.
By the sovereign power, as was before observed, is meant the making of laws; for wherever that power resides, all others must conform to, and be directed by it, whatever appearance the outward form and administration of the government may put on. For it is at any time in the option of the legislature to alter that form and administration by a new edict or rule, and to put the execution of the laws into whatever hands it pleases: and all the other powers of the state must obey the legislative power in the execution of their several functions, or else the constitution is at an end.
In a democracy, where the right of making laws resides in the people at large, public virtue, or goodness of intention, is more likely to be found, than either of the other qualities of government. Popular assemblies are frequently foolish in their contrivance, and weak in their execution; but generally mean to do the thing that is right and just, and have always a degree of patriotism or public spirit. In aristocracies there is more wisdom to be found, than in the other frames of government; being composed, or intended to be composed, of the most experienced citizens; but there is less honesty than in a republic, and less strength than in a monarchy. A monarchy is indeed the most powerful of any, all the sinews of government being knit together, and united in the hand of the prince; but then there is imminent danger of his employing that strength to improvident or oppressive purposes.
Thus these three species of government have, all of them, their several perfections and imperfections. Democracies are usually the best calculated to direct the end of a law; aristocracies to invent the means by which that end shall be obtained; and monarchies to carry those means into execution. And the antients, as was observed, had in general no idea of any other permanent form of government but these three: for though Cicero[6] declares himself of opinion, “esse optime constitutam rempublicam, quae ex tribus generibus illis, regali, optimo, et populari, sit modice confusa;” yet Tacitus treats this notion of a mixed government, formed out of them all, and partaking of the advantages of each, as a visionary whim, and one that, if effected, could never be lasting or secure[7].
But, happily for us of this island, the British constitution has long remained, and I trust will long continue, a standing exception to the truth of this observation. For, as with us the executive power of the laws is lodged in a single person, they have all the advantages of strength and dispatch, that are to be found in the most absolute monarchy; and, as the legislature of the kingdom is entrusted to three distinct powers, entirely independent of each other; first, the king; secondly, the lords spiritual and temporal, which is an aristocratical assembly of persons selected for their piety, their birth, their wisdom, their valour, or their property; and, thirdly, the house of commons, freely chosen by the people from among themselves, which makes it a kind of democracy; as this aggregate body, actuated by different springs, and attentive to different interests, composes the British parliament, and has the supreme disposal of every thing; there can no inconvenience be attempted by either of the three branches, but will be withstood by one of the other two; each branch being armed with a negative power, sufficient to repel any innovation which it shall think inexpedient or dangerous.
Here then is lodged the sovereignty of the British constitution; and lodged as beneficially as is possible for society. For in no other shape could we be so certain of finding the three great qualities of government so well and so happily united. If the supreme power were lodged in any one of the three branches separately, we must be exposed to the inconveniences of either absolute monarchy, aristocracy, or democracy; and so want two of the three principal ingredients of good polity, either virtue, wisdom, or power. If it were lodged in any two of the branches; for instance, in the king and house of lords, our laws might be providently made, and well executed, but they might not always have the good of the people in view: if lodged in the king and commons, we should want that circumspection and mediatory caution, which the wisdom of the peers is to afford: if the supreme rights of legislature were lodged in the two houses only, and the king had no negative upon their proceedings, they might be tempted to encroach upon the royal prerogative, or perhaps to abolish the kingly office, and thereby weaken (if not totally destroy) the strength of the executive power. But the constitutional government of this island is so admirably tempered and compounded, that nothing can endanger or hurt it, but destroying the equilibrium of power between one branch of the legislature and the rest. For if ever it should happen that the independence of any one of the three should be lost, or that it should become subservient to the views of either of the other two, there would soon be an end of our constitution. The legislature would be changed from that, which was originally set up by the general consent and fundamental act of the society; and such a change, however effected, is according to Mr Locke[8] (who perhaps carries his theory too far) at once an entire dissolution of the bands of government; and the people would be reduced to a state of anarchy, with liberty to constitute to themselves a new legislative power.
Having thus cursorily considered the three usual species of government, and our own singular constitution, selected and compounded from them all, I proceed to observe, that, as the power of making laws constitutes the supreme authority, so wherever the supreme authority in any state resides, it is the right of that authority to make laws; that is, in the words of our definition, to prescribe the rule of civil action. And this may be discovered from the very end and institution of civil states. For a state is a collective body, composed of a multitude of individuals, united for their safety and convenience, and intending to act together as one man. If it therefore is to act as one man, it ought to act by one uniform will. But, inasmuch as political communities are made up of many natural persons, each of whom has his particular will and inclination, these several wills cannot by any natural union be joined together, or tempered and disposed into a lasting harmony, so as to constitute and produce that one uniform will of the whole. It can therefore be no otherwise produced than by a political union; by the consent of all persons to submit their own private wills to the will of one man, or of one or more assemblies of men, to whom the supreme authority is entrusted: and this will of that one man, or assemblage of men, is in different states, according to their different constitutions, understood to be law.
Thus far as to the right of the supreme power to make laws; but farther, it is it’s duty likewise. For since the respective members are bound to conform themselves to the will of the state, it is expedient that they receive directions from the state declaratory of that it’s will. But since it is impossible, in so great a multitude, to give injunctions to every particular man, relative to each particular action, therefore the state establishes general rules, for the perpetual information and direction of all persons in all points, whether of positive or negative duty. And this, in order that every man may know what to look upon as his own, what as another’s; what absolute and what relative duties are required at his hands; what is to be esteemed honest, dishonest, or indifferent; what degree every man retains of his natural liberty; what he has given up as the price of the benefits of society; and after what manner each person is to moderate the use and exercise of those rights which the state assigns him, in order to promote and secure the public tranquillity.
From what has been advanced, the truth of the former branch of our definition, is (I trust) sufficiently evident; that “municipal law is a rule of civil conduct prescribed by the supreme power in a state.” I proceed now to the latter branch of it; that it is a rule so prescribed, “commanding what is right, and prohibiting what is wrong.”
Now in order to do this completely, it is first of all necessary that the boundaries of right and wrong be established and ascertained by law. And when this is once done, it will follow of course that it is likewise the business of the law, considered as a rule of civil conduct, to enforce these rights and to restrain or redress these wrongs. It remains therefore only to consider in what manner the law is said to ascertain the boundaries of right and wrong; and the methods which it takes to command the one and prohibit the other.
For this purpose every law may be said to consist of several parts: one, declaratory; whereby the rights to be observed, and the wrongs to be eschewed, are clearly defined and laid down: another, directory; whereby the subject is instructed and enjoined to observe those rights, and to abstain from the commission of those wrongs: a third, remedial; whereby a method is pointed out to recover a man’s private rights, or redress his private wrongs: to which may be added a fourth, usually termed the sanction, or vindicatory branch of the law; whereby it is signified what evil or penalty shall be incurred by such as commit any public wrongs, and transgress or neglect their duty.
With regard to the first of these, the declaratory part of the municipal law, this depends not so much upon the law of revelation or of nature, as upon the wisdom and will of the legislator. This doctrine, which before was slightly touched, deserves a more particular explication. Those rights then which God and nature have established, and are therefore called natural rights, such as are life and liberty, need not the aid of human laws to be more effectually invested in every man than they are; neither do they receive any additional strength when declared by the municipal laws to be inviolable. On the contrary, no human legislature has power to abridge or destroy them, unless the owner shall himself commit some act that amounts to a forfeiture. Neither do divine or natural duties (such as, for instance, the worship of God, the maintenance of children, and the like) receive any stronger sanction from being also declared to be duties by the law of the land. The case is the same as to crimes and misdemesnors, that are forbidden by the superior laws, and therefore stiled mala in se, such as murder, theft, and perjury; which contract no additional turpitude from being declared unlawful by the inferior legislature. For that legislature in all these cases acts only, as was before observed, in subordination to the great lawgiver, transcribing and publishing his precepts. So that, upon the whole, the declaratory part of the municipal law has no force or operation at all, with regard to actions that are naturally and intrinsically right or wrong.
But, with regard to things in themselves indifferent, the case is entirely altered. These become either right or wrong, just or unjust, duties or misdemesnors, according as the municipal legislator sees proper, for promoting the welfare of the society, and more effectually carrying on the purposes of civil life. Thus our own common law has declared, that the goods of the wife do instantly upon marriage become the property and right of the husband; and our statute law has declared all monopolies a public offence: yet that right, and this offence, have no foundation in nature; but are merely created by the law, for the purposes of civil society. And sometimes, where the thing itself has it’s rise from the law of nature, the particular circumstances and mode of doing it become right or wrong, as the laws of the land shall direct. Thus, for instance, in civil duties; obedience to superiors is the doctrine of revealed as well as natural religion: but who those superiors shall be, and in what circumstances, or to what degrees they shall be obeyed, is the province of human laws to determine. And so, as to injuries or crimes, it must be left to our own legislature to decide, in what cases the seising another’s cattle shall amount to the crime of robbery; and where it shall be a justifiable action, as when a landlord takes them by way of distress for rent.
Thus much for the declaratory part of the municipal law: and the directory stands much upon the same footing; for this virtually includes the former, the declaration being usually collected from the direction. The law that says, “thou shalt not steal,” implies a declaration that stealing is a crime. And we have seen[9] that, in things naturally indifferent, the very essence of right and wrong depends upon the direction of the laws to do or to omit them.
The remedial part of a law is so necessary a consequence of the former two, that laws must be very vague and imperfect without it. For in vain would rights be declared, in vain directed to be observed, if there were no method of recovering and asserting those rights, when wrongfully withheld or invaded. This is what we mean properly, when we speak of the protection of the law. When, for instance, the declaratory part of the law has said “that the field or inheritance, which belonged to Titius’s father, is vested by his death in Titius;” and the directory part has “forbidden any one to enter on another’s property without the leave of the owner;” if Gaius after this will presume to take possession of the land, the remedial part of the law will then interpose it’s office; will make Gaius restore the possession to Titius, and also pay him damages for the invasion.
With regard to the sanction of laws, or the evil that may attend the breach of public duties; it is observed, that human legislators have for the most part chosen to make the sanction of their laws rather vindicatory than remuneratory, or to consist rather in punishments, than in actual particular rewards. Because, in the first place, the quiet enjoyment and protection of all our civil rights and liberties, which are the sure and general consequence of obedience to the municipal law, are in themselves the best and most valuable of all rewards. Because also, were the exercise of every virtue to be enforced by the proposal of particular rewards, it were impossible for any state to furnish stock enough for so profuse a bounty. And farther, because the dread of evil is a much more forcible principle of human actions than the prospect of good[10]. For which reasons, though a prudent bestowing of rewards is sometimes of exquisite use, yet we find that those civil laws, which enforce and enjoin our duty, do seldom, if ever, propose any privilege or gift to such as obey the law; but do constantly come armed with a penalty denounced against transgressors, either expressly defining the nature and quantity of the punishment, or else leaving it to the discretion of the judges, and those who are entrusted with the care of putting the laws in execution.
Of all the parts of a law the most effectual is the vindicatory. For it is but lost labour to say, “do this, or avoid that,” unless we also declare, “this shall be the consequence of your non-compliance.” We must therefore observe, that the main strength and force of a law consists in the penalty annexed to it. Herein is to be found the principal obligation of human laws.
Legislators and their laws are said to compel and oblige; not that by any natural violence they so constrain a man, as to render it impossible for him to act otherwise than as they direct, which is the strict sense of obligation: but because, by declaring and exhibiting a penalty against offenders, they bring it to pass that no man can easily choose to transgress the law; since, by reason of the impending correction, compliance is in a high degree preferable to disobedience. And, even where rewards are proposed as well as punishments threatened, the obligation of the law seems chiefly to consist in the penalty: for rewards, in their nature, can only persuade and allure; nothing is compulsory but punishment.
It is held, it is true, and very justly, by the principal of our ethical writers, that human laws are binding upon mens consciences. But if that were the only, or most forcible obligation, the good only would regard the laws, and the bad would set them at defiance. And, true as this principle is, it must still be understood with some restriction. It holds, I apprehend, as to rights; and that, when the law has determined the field to belong to Titius, it is matter of conscience no longer to withhold or to invade it. So also in regard to natural duties, and such offences as are mala in se: here we are bound in conscience, because we are bound by superior laws, before those human laws were in being, to perform the one and abstain from the other. But in relation to those laws which enjoin only positive duties, and forbid only such things as are not mala in se but mala prohibita merely, annexing a penalty to non-compliance, here I apprehend conscience is no farther concerned, than by directing a submission to the penalty, in case of our breach of those laws: for otherwise the multitude of penal laws in a state would not only be looked upon as an impolitic, but would also be a very wicked thing; if every such law were a snare for the conscience of the subject. But in these cases the alternative is offered to every man; “either abstain from this, or submit to such a penalty;” and his conscience will be clear, whichever side of the alternative he thinks proper to embrace. Thus, by the statutes for preserving the game, a penalty is denounced against every unqualified person that kills a hare. Now this prohibitory law does not make the transgression a moral offence: the only obligation in conscience is to submit to the penalty if levied.
I have now gone through the definition laid down of a municipal law; and have shewn that it is “a rule—of civil conduct—prescribed—by the supreme power in a state—commanding what is right, and prohibiting what is wrong:” in the explication of which I have endeavoured to interweave a few useful principles, concerning the nature of civil government, and the obligation of human laws. Before I conclude this section, it may not be amiss to add a few observations concerning the interpretation of laws.
When any doubt arose upon the construction of the Roman laws, the usage was to state the case to the emperor in writing, and take his opinion upon it. This was certainly a bad method of interpretation. To interrogate the legislature to decide particular disputes, is not only endless, but affords great room for partiality and oppression. The answers of the emperor were called his rescripts, and these had in succeeding cases the force of perpetual laws; though they ought to be carefully distinguished, by every rational civilian, from those general constitutions, which had only the nature of things for their guide. The emperor Macrinus, as his historian Capitolinus informs us, had once resolved to abolish these rescripts, and retain only the general edicts; he could not bear that the hasty and crude answers of such princes as Commodus and Caracalla should be reverenced as laws. But Justinian thought otherwise[11], and he has preserved them all. In like manner the canon laws, or decretal epistles of the popes, are all of them rescripts in the strictest sense. Contrary to all true forms of reasoning, they argue from particulars to generals.
The fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law. Let us take a short view of them all.
1. Words are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use. Thus the law mentioned by Puffendorf[12], which forbad a layman to lay hands on a priest, was adjudged to extend to him, who had hurt a priest with a weapon. Again; terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, and science. So in the act of settlement, where the crown of England is limited “to the princess Sophia, and the heirs of her body, being protestants,” it becomes necessary to call in the assistance of lawyers, to ascertain the precise idea of the words “heirs of her body;” which in a legal sense comprize only certain of her lineal descendants. Lastly, where words are clearly repugnant in two laws, the latter law takes place of the elder: leges posteriores priores contrarias abrogant is a maxim of universal law, as well as of our own constitutions. And accordingly it was laid down by a law of the twelve tables at Rome, quod populus postremum jussit, id jus ratum esto.
2. If words happen to be still dubious, we may establish their meaning from the context; with which it may be of singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal, or intricate. Thus the proeme, or preamble, is often called in to help the construction of an act of parliament. Of the same nature and use is the comparison of a law with other laws, that are made by the same legislator, that have some affinity with the subject, or that expressly relate to the same point. Thus, when the law of England declares murder to be felony without benefit of clergy, we must resort to the same law of England to learn what the benefit of clergy is: and, when the common law censures simoniacal contracts, it affords great light to the subject to consider what the canon law has adjudged to be simony.
3. As to the subject matter, words are always to be understood as having a regard thereto; for that is always supposed to be in the eye of the legislator, and all his expressions directed to that end. Thus, when a law of our Edward III forbids all ecclesiastical persons to purchase provisions at Rome, it might seem to prohibit the buying of grain and other victual; but when we consider that the statute was made to repress the usurpations of the papal see, and that the nominations to benefices by the pope were called provisions, we shall see that the restraint is intended to be laid upon such provisions only.
4. As to the effects and consequence, the rule is, where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them. Therefore the Bolognian law, mentioned by Puffendorf[13], which enacted “that whoever drew blood in the streets should be punished with the utmoft severity,” was held after long debate not to extend to the surgeon, who opened the vein of a person that fell down in the street with a fit.
5. But, lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it. For when this reason ceases, the law itself ought likewise to cease with it. An instance of this is given in a case put by Cicero, or whoever was the author of the rhetorical treatise inscribed to Herennius[14]. There was a law, that those who in a storm forsook the ship should forfeit all property therein; and the ship and lading should belong entirely to those who staid in it. In a dangerous tempest all the mariners forsook the ship, except only one sick passenger, who by reason of his disease was unable to get out and escape. By chance the ship came safe to port. The sick man kept possession and claimed the benefit of the law. Now here all the learned agree, that the sick man is not within the reason of the law; for the reason of making it was, to give encouragement to such as should venture their lives to save the vessel: but this is a merit, which he could never pretend to, who neither staid in the ship upon that account, nor contributed any thing to it’s preservation.
From this method of interpreting laws, by the reason of them, arises what we call equity; which is thus defined by Grotius[15], “the correction of that, wherein the law (by reason of it’s universality) is deficient.” For since in laws all cases cannot be foreseen or expressed, it is necessary, that when the general decrees of the law come to be applied to particular cases, there should be somewhere a power vested of defining those circumstances, which (had they been foreseen) the legislator himself would have expressed. And these are the cases, which, according to Grotius, “lex non exacte definit, sed arbitrio boni viri permittit.”
Equity thus depending, essentially, upon the particular circumstances of each individual case, there can be no established rules and fixed precepts of equity laid down, without destroying it’s very essence, and reducing it to a positive law. And, on the other hand, the liberty of considering all cases in an equitable light must not be indulged too far, lest thereby we destroy all law, and leave the decision of every question entirely in the breast of the judge. And law, without equity, though hard and disagreeable, is much more desirable for the public good, than equity without law; which would make every judge a legislator, and introduce most infinite confusion; as there would then be almost as many different rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind.
↑ Juris praecepta sunt haec, honeste vivere, alterum non laedere, suum cuique tribuere. Inst. 1. 1. 3.
↑ Puffendorf, l. 7. c. 1. compared with Barbeyrac’s commentary.
↑ Ff. 1. 1. 9.
↑ Inst. 1. 2. 1.
↑ Such laws among the Romans were denominated privilegia, or private laws, of which Cicero de leg. 3. 19. and in his oration pro domo, 17. thus speaks; “Vetant leges sacratae, vetant duodecim tabulae, leges privatis hominibus irrogari; id enim est privilegium. Nemo unquam tulit, nihil est crudelius, nihil perniciesius, nihil quod minus haec civitas ferre possit.”
↑ In his fragments de rep. l. 2.
↑ “Cunctas nationes et urbes populus, aut primores, aut singuli regunt: delecta ex his et constituta reipublicae forma laudari facilius quam evenire, vel, si evenit, haud diuturna esse potest.” Ann. l. 4.
↑ On government, part. 2. §. 212.
↑ See pag. 43.
↑ Locke, Hum. Und. b. 2. c. 21.
↑ Inst. 1. 2. 6.
↑ L. of N. and N. 5. 12. 3.
↑ l. 5. c. 12. §. 8.
↑ l. 1. c. 11.
↑ de aequitate.
Section the third.
Of the Laws of England.
The municipal law of England, or the rule of civil conduct prescribed to the inhabitants of this kingdom, may with sufficient propriety be divided into two kinds; the lex non scripta, the unwritten, or common law; and the lex scripta, the written, or statute law.
The lex non scripta, or unwritten law, includes not only general customs, or the common law properly so called; but also the particular customs of certain parts of the kingdom; and likewise those particular laws, that are by custom observed only in certain courts and jurisdictions.
When I call these parts of our law leges non scriptae, I would not be understood as if all those laws were at present merely oral, or communicated from the former ages to the present solely by word of mouth. It is true indeed that, in the profound ignorance of letters which formerly overspread the whole western world, all laws were intirely traditional, for this plain reason, that the nations among which they prevailed had but little idea of writing. Thus the British as well as the Gallic druids committed all their laws as well as learning to memory[1]; and it is said of the primitive Saxons here, as well as their brethren on the continent, that leges sola memoria et usu retinebant[2]. But, with us at present, the monuments and evidences of our legal customs are contained in the records of the several courts of justice, in books of reports and judicial decisions, and in the treatises of learned sages of the profession, preserved and handed down to us from the times of highest antiquity. However I therefore stile these parts of our law leges non scriptae, because their original institution and authority are not set down in writing, as acts of parliament are, but they receive their binding power, and the force of laws by long and immemorial usage, and by their universal reception throughout the kingdom. In like manner as Aulus Gellius defines the jus non scriptum to be that, which is “tacito et illiterato hominum consensu et moribus expressum.”
Our antient lawyers, and particularly Fortescue[3], insist with abundance of warmth, that these customs are as old as the primitive Britons, and continued down, through the several mutations of government and inhabitants, to the present time, unchanged and unadulterated. This may be the case as to some: but in general, as Mr Selden in his notes observes, this assertion must be understood with many grains of allowance; and ought only to signify, as the truth seems to be, that there never was any formal exchange of one system of laws for another: though doubtless by the intermixture of adventitious nations, the Romans, the Picts, the Saxons, the Danes, and the Normans, they must have insensibly introduced and incorporated many of their own customs with those that were before established: thereby in all probability improving the texture and wisdom of the whole, by the accumulated wisdom of divers particular countries. Our laws, saith lord Bacon[4], are mixed as our language: and as our language is so much the richer, the laws are the more complete.
And indeed our antiquarians and first historians do all positively assure us, that our body of laws is of this compounded nature. For they tell us, that in the time of Alfred the local customs of the several provinces of the kingdom were grown so various, that he found it expedient to compile his dome-book or liber judicialis, for the general use of the whole kingdom. This book is said to have been extant so late as the reign of king Edward the fourth, but is now unfortunately lost. It contained, we may probably suppose, the principal maxims of the common law, the penalties for misdemesnors, and the forms of judicial proceedings. Thus much may at least be collected from that injunction to observe it, which we find in the laws of king Edward the elder, the son of Alfred[5]. “Omnibus qui reipublicae praesunt etiam atque etiam mando, ut omnibus aequos se praebeant judices, perinde ac in judiciali libro (Saxonice, dom-bec) scriptum habetur; nec quicquam formident quin jus commune (Saxonice, folcrihte) audacter libereque dicant.”
But the irruption and establishment of the Danes in England, which followed soon after, introduced new customs, and caused this code of Alfred in many provinces to fall into disuse; or at least to be mixed and debased with other laws of a coarser alloy. So that about the beginning of the eleventh century there were three principal systems of laws prevailing in different districts. 1. The Mercen-Lage, or Mercian laws, which were observed in many of the midland counties, and those bordering on the principality of Wales, the retreat of the antient Britons; and therefore very probably intermixed with the British or Druidical customs. 2. The West-Saxon-Lage, or laws of the west Saxons, which obtained in the counties to the south and west of the island, from Kent to Devonshire. These were probably much the same with the laws of Alfred above-mentioned, being the municipal law of the far most considerable part of his dominions, and particularly including Berkshire, the seat of his peculiar residence. 3. The Dane-Lage, or Danish law, the very name of which speaks it’s original and composition. This was principally maintained in the rest of the midland counties, and also on the eastern coast, the part most exposed to the visits of that piratical people. As for the very northern provinces, they were at that time under a distinct government[6].
Out of these three laws, Roger Hoveden[7] and Ranulphus Cestrensis[8] inform us, king Edward the confessor extracted one uniform law or digest of laws, to be observed throughout the whole kingdom; though Hoveden and the author of an old manuscript chronicle[9] assure us likewise, that this work was projected and begun by his grandfather king Edgar. And indeed a general digest of the same nature has been constantly found expedient, and therefore put in practice by other great nations, which were formed from an assemblage of little provinces, governed by peculiar customs. As in Portugal, under king Edward, about the beginning of the fifteenth century[10]. In Spain under Alonzo X, who about the year 1250 executed the plan of his father St. Ferdinand, and collected all the provincial customs into one uniform law, in the celebrated code entitled las partidas[11]. And in Sweden, about the same aera, a universal body of common law was compiled out of the particular customs established by the laghman of every province, and intitled the land’s lagh, being analagous to the common law of England[12].
Both these undertakings, of king Edgar and Edward the confessor, seem to have been no more than a new edition, or fresh promulgation, of Alfred’s code or dome-book, with such additions and improvements as the experience of a century and an half had suggested. For Alfred is generally stiled by the same historians the legum Anglicanarum conditor, as Edward the confessor is the restitutor. These however are the laws which our histories so often mention under the name of the laws of Edward the confessor; which our ancestors struggled so hardly to maintain, under the first princes of the Norman line; and which subsequent princes so frequently promised to keep and to restore, as the most popular act they could do, when pressed by foreign emergencies or domestic discontents. These are the laws, that so vigorously withstood the repeated attacks of the civil law; which established in the twelfth century a new Roman empire over most of the states on the continent: states that have lost, and perhaps upon that account, their political liberties; while the free constitution of England, perhaps upon the same account, has been rather improved than debased. These, in short, are the laws which gave rise and original to that collection of maxims and customs, which is now known by the name of the common laws. A name either given to it, in contradistinction to other laws, as the statute law, the civil law, the law merchant, and the like; or, more probably, as a law common to all the realm, the jus commune or folcright mentioned by king Edward the elder, after the abolition of the several provincial customs and particular laws before-mentioned.
But though this is the most likely foundation of this collection of maxims and customs, yet the maxims and customs, so collected, are of higher antiquity than memory or history can reach: nothing being more difficult than to ascertain the precise beginning and first spring of an antient and long established custom. Whence it is that in our law the goodness of a custom depends upon it’s having been used time out of mind; or, in the solemnity of our legal phrase, time whereof the memory of man runneth not to the contrary. This it is that gives it it’s weight and authority; and of this nature are the maxims and customs which compose the common law, or lex non scripta, of this kingdom.
This unwritten, or common, law is properly distinguishable into three kinds: 1. General customs; which are the universal rule of the whole kingdom, and form the common law, in it’s stricter and more usual signification. 2. Particular customs; which for the most part affect only the inhabitants of particular districts. 3. Certain particular laws; which by custom are adopted and used by some particular courts, of pretty general and extensive jurisdiction.
I. As to general customs, or the common law, properly so called; this is that law, by which proceedings and determinations in the king’s ordinary courts of justice are guided and directed. This, for the most part, settles the course in which lands descend by inheritance; the manner and form of acquiring and transferring property; the solemnities and obligation of contracts; the rules of expounding wills, deeds, and acts of parliament; the respective remedies of civil injuries; the several species of temporal offences, with the manner and degree of punishment; and an infinite number of minuter particulars, which diffuse themselves as extensively as the ordinary distribution of common justice requires. Thus, for example, that there shall be four superior courts of record, the chancery, the king’s bench, the common pleas, and the exchequer;—that the eldest son alone is heir to his ancestor;—that property may be acquired and transferred by writing;—that a deed is of no validity unless sealed and delivered;—that wills shall be construed more favorably, and deeds more strictly;—that money lent upon bond is recoverable by action of debt;—that breaking the public peace is an offence, and punishable by fine and imprisonment;—all these are doctrines that are not set down in any written statute or ordinance, but depend merely upon immemorial usage, that is, upon common law, for their support.
Some have divided the common law into two principal grounds or foundations: 1. Established customs; such as that where there are three brothers, the eldest brother shall be heir to the second, in exclusion of the youngest: and 2. Established rules and maxims; as, “that the king can do no wrong, that no man shall be bound to accuse himself,” and the like. But I take these to be one and the same thing. For the authority of these maxims rests entirely upon general reception and usage; and the only method of proving, that this or that maxim is a rule of the common law, is by shewing that it hath been always the custom to observe it.
But here a very natural, and very material, question arises: how are these customs or maxims to be known, and by whom is their validity to be determined? The answer is, by the judges in the several courts of justice. They are the depositary of the laws; the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land. Their knowlege of that law is derived from experience and study; from the “viginti annorum lucubrationes,” which Fortescue[13] mentions; and from being long personally accustomed to the judicial decisions of their predecessors. And indeed these judicial decisions are the principal and most authoritative evidence, that can be given, of the existence of such a custom as shall form a part of the common law. The judgment itself, and all the proceedings previous thereto, are carefully registered and preserved, under the name of records, in public repositories set apart for that particular purpose; and to them frequent recourse is had, when any critical question arises, in the determination of which former precedents may give light or assistance. And therefore, even so early as the conquest, we find the “praeteritorum memoria eventorum” reckoned up as one of the chief qualifications of those who were held to be “legibus patriae optime instituti[14].” For it is an established rule to abide by former precedents, where the same points come again in litigation; as well to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from, according to his private sentiments: he being sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one. Yet this rule admits of exception, where the former determination is most evidently contrary to reason; much more if it be contrary to the divine law. But even in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law; that is, that it is not the established custom of the realm, as has been erroneously determined. And hence it is that our lawyers are with justice so copious in their encomiums on the reason of the common law; that they tell us, that the law is the perfection of reason, that it always intends to conform thereto, and that what is not reason is not law. Not that the particular reason of every rule in the law can at this distance of time be always precisely assigned; but it is sufficient that there be nothing in the rule flatly contradictory to reason, and then the law will presume it to be well founded[15]. And it hath been an antient observation in the laws of England, that whenever a standing rule of law, of which the reason perhaps could not be remembered or discerned, hath been wantonly broke in upon by statutes or new resolutions, the wisdom of the rule hath in the end appeared from the inconveniences that have followed the innovation.
The doctrine of the law then is this: that precedents and rules must be followed, unless flatly absurd or unjust: for though their reason be not obvious at first view, yet we owe such a deference to former times as not to suppose they acted wholly without consideration. To illustrate this doctrine by examples. It has been determined, time out of mind, that a brother of the half blood shall never succeed as heir to the estate of his half brother, but it shall rather escheat to the king, or other superior lord. Now this is a positive law, fixed and established by custom, which custom is evidenced by judicial decisions; and therefore can never be departed from by any modern judge without a breach of his oath and the law. For herein there is nothing repugnant to natural justice; though the reason of it, drawn from the feodal law, may not be quite obvious to every body. And therefore, on account of a supposed hardship upon the half brother, a modern judge might wish it had been otherwise settled; yet it is not in his power to alter it. But if any court were now to determine, that an elder brother of the half blood might enter upon and seise any lands that were purchased by his younger brother, no subsequent judges would scruple to declare that such prior determination was unjust, was unreasonable, and therefore was not law. So that the law, and the opinion of the judge are not always convertible terms, or one and the same thing; since it sometimes may happen that the judge may mistake the law. Upon the whole however, we may take it as a general rule, “that the decisions of courts of justice are the evidence of what is common law:” in the same manner as, in the civil law, what the emperor had once determined was to serve for a guide for the future[16].
The decisions therefore of courts are held in the highest regard, and are not only preserved as authentic records in the treasuries of the several courts, but are handed out to public view in the numerous volumes of reports which furnish the lawyer’s library. These reports are histories of the several cases, with a short summary of the proceedings, which are preserved at large in the record; the arguments on both sides; and the reasons the court gave for it’s judgment; taken down in short notes by persons present at the determination. And these serve as indexes to, and also to explain, the records; which always, in matters of consequence and nicety, the judges direct to be searched. The reports are extant in a regular series from the reign of king Edward the second inclusive; and from his time to that of Henry the eighth were taken by the prothonotaries, or chief scribes of the court, at the expense of the crown, and published annually, whence they are known under the denomination of the year books. And it is much to be wished that this beneficial custom had, under proper regulations, been continued to this day: for, though king James the first at the instance of lord Bacon appointed two reporters with a handsome stipend for this purpose, yet that wise institution was soon neglected, and from the reign of Henry the eighth to the present time this task has been executed by many private and cotemporary hands; who sometimes through haste and inaccuracy, sometimes through mistake and want of skill, have published very crude and imperfect (perhaps contradictory) accounts of one and the same determination. Some of the most valuable of the antient reports are those published by lord chief justice Coke; a man of infinite learning in his profession, though not a little infected with the pedantry and quaintness of the times he lived in, which appear strongly in all his works. However his writings are so highly esteemed, that they are generally cited without the author’s name[17].
Besides these reporters, there are also other authors, to whom great veneration and respect is paid by the students of the common law. Such are Glanvil and Bracton, Britton and Fleta, Littleton and Fitzherbert, with some others of antient date, whole treatises are cited as authority; and are evidence that cases have formerly happened in which such and such points were determined, which are now become settled and first principles. One of the last of these methodical writers in point of time, whose works are of any intrinsic authority in the courts of justice, and do not entirely depend on the strength of their quotations from older authors, is the same learned judge we have just mentioned, sir Edward Coke; who hath written four volumes of institutes, as he is pleased to call them, though they have little of the institutional method to warrant such a title. The first volume is a very extensive comment upon a little excellent treatise of tenures, compiled by judge Littleton in the reign of Edward the fourth. This comment is a rich mine of valuable common law learning, collected and heaped together from the antient reports and year books, but greatly defective in method[18]. The second volume is a comment upon many old acts of parliament, without any systematical order; the third a more methodical treatise of the pleas of the crown; and the fourth an account of the several species of courts[19].
And thus much for the first ground and chief corner stone of the laws of England, which is, general immemorial custom, or common law, from time to time declared in the decisions of the courts of justice; which decisions are preserved among our public records, explained in our reports, and digested for general use in the authoritative writings of the venerable sages of the law.
The Roman law, as practised in the times of it’s liberty, paid also a great regard to custom; but not so much as our law: it only then adopting it, when the written law was deficient. Though the reasons alleged in the digest[20] will fully justify our practice, in making it of equal authority with, when it is not contradicted by, the written law. “For since, says Julianus, the written law binds us for no other reason but because it is approved by the judgment of the people, therefore those laws which the people have approved without writing ought also to bind every body. For where is the difference, whether the people declare their assent to a law by suffrage, or by a uniform course of acting accordingly?” Thus did they reason while Rome had some remains of her freedom; but, when the imperial tyranny came to be fully established, the civil laws speak a very different language. “Quod principi placuit legis habet vigorem, cum populus ei et in eum omne suum imperium et potestatem conferat,” says Ulpian[21]. “Imperator solus et conditor et interpres legis existimatur,” says the code[22]. And again, “sacrilegii instar est rescripto principis obviare[23].” And indeed it is one of the characteristic marks of English liberty, that our common law depends upon custom; which carries this internal evidence of freedom along with it, that it probably was introduced by the voluntary consent of the people.
II. The second branch of the unwritten laws of England are particular customs, or laws which affect only the inhabitants of particular districts.
These particular customs, or some of them, are without doubt the remains of that multitude of local customs before-mentioned, out of which the common law, as it now stands, was collected at first by king Alfred, and afterwards by king Edgar and Edward the confessor: each district mutually sacrificing some of it’s own special usages, in order that the whole kingdom might enjoy the benefit of one uniform and universal system of laws. But, for reasons that have been now long forgotten, particular counties, cities, towns, manors, and lordships, were very early indulged with the privilege of abiding by their own customs, in contradistinction to the rest of the nation at large: which privilege is confirmed to them by several acts of parliament[24].
Such is the custom of gavelkind in Kent and some other parts of the kingdom (though perhaps it was also general till the Norman conquest) which ordains, among other things, that not the eldest son only of the father shall succeed to his inheritance, but all the sons alike: and that, though the ancestor be attainted and hanged, yet the heir shall succeed to his estate, without any escheat to the lord.—Such is the custom that prevails in divers antient boroughs, and therefore called borough-english, that the youngest son shall inherit the estate, in preference to all his elder brothers.—Such is the custom in other boroughs that a widow shall be intitled, for her dower, to all her husband’s lands; whereas at the common law she shall be endowed of one third part only.—Such also are the special and particular customs of manors, of which every one has more or less, and which bind all the copyhold-tenants that hold of the said manors.—Such likewise is the custom of holding divers inferior courts, with power of trying causes, in cities and trading towns; the right of holding which, when no royal grant can be shewn, depends entirely upon immemorial and established usage.—Such, lastly, are many particular customs within the city of London, with regard to trade, apprentices, widows, orphans, and a variety of other matters. All these are contrary to the general law of the land, and are good only by special usage, though the customs of London are also confirmed by act of parliament[25].
To this head may most properly be referred a particular system of customs used only among one set of the king’s subjects, called the custom of merchants or lex mercatoria: which, however different from the general rules of the common law, is yet ingrafted into it, and made a part of it[26]; being allowed, for the benefit of trade, to be of the utmost validity in all commercial transactions: for it is a maxim of law, that “cuilibet in sua arte credendum est.”
The rules relating to particular customs regard either the proof of their existence; their legality when proved; or their usual method of allowance. And first we will consider the rules of proof.
As to gavelkind, and borough-english, the law takes particular notice of them[27], and there is no occasion to prove that such customs actually exist, but only that the lands in question are subject thereto. All other private customs must be particularly pleaded[28], and as well the existence of such customs must be shewn, as that the thing in dispute is within the custom alleged. The trial in both cases (both to shew the existence of the custom, as, “that in the manor of Dale lands shall descend only to the heirs male, and never to the heirs female;” and also to shew “that the lands in question are within that manor”) is by a jury of twelve men, and not by the judges; except the same particular custom has been before tried, determined, and recorded in the same court[29].
The customs of London differ from all others in point of trial: for, if the existence of the custom be brought in question, it shall not be tried by a jury, but by certificate from the lord mayor and aldermen by the mouth of their recorder[30]; unless it be such a custom as the corporation is itself interested in, as a right of taking toll, &c, for then the law permits them not to certify on their own behalf[31].
When a custom is actually proved to exist, the next enquiry is into the legality of it; for, if it is not a good custom, it ought to be no longer used. “Malus usus abolendus est” is an established maxim of the law[32]. To make a particular custom good, the following are necessary requisites.
1. That it have been used so long, that the memory of man runneth not to the contrary. So that, if any one can shew the beginning of it, it is no good custom. For which reason no custom can prevail against an express act of parliament; since the statute itself is a proof of a time when such a custom did not exist[33].
2. It must have been continued. Any interruption would cause a temporary ceasing: the revival gives it a new beginning, which will be within time of memory, and thereupon the custom will be void. But this must be understood with regard to an interruption of the right; for an interruption of the possession only, for ten or twenty years, will not destroy the custom[34]. As if the inhabitants of a parish have a customary right of watering their cattle at a certain pool, the custom is not destroyed, though they do not use it for ten years; it only becomes more difficult to prove: but if the right be any how discontinued for a day, the custom is quite at an end.
3. It must have been peaceable, and acquiesced in; not subject to contention and dispute[35]. For as customs owe their original to common consent, their being immemorially disputed either at law or otherwise is a proof that such consent was wanting.
4. Customs must be reasonable[36]; or rather, taken negatively, they must not be unreasonable. Which is not always, as sir Edward Coke says[37], to be understood of every unlearned man’s reason, but of artificial and legal reason, warranted by authority of law. Upon which account a custom may be good, though the particular reason of it cannot be assigned; for it sufficeth, if no good legal reason can be assigned against it. Thus a custom in a parish, that no man shall put his beasts into the common till the third of October, would be good; and yet it would be hard to shew the reason why that day in particular is fixed upon, rather than the day before or after. But a custom, that no cattle shall be put in till the lord of the manor has first put in his, is unreasonable, and therefore bad: for peradventure the lord will never put in his; and then the tenants will lose all their profits[38].
5. Customs ought to be certain. A custom, that lands shall descend to the most worthy of the owner’s blood, is void; for how shall this worth be determined? but a custom to descend to the next male of the blood, exclusive of females, is certain, and therefore good[39]. A custom, to pay two pence an acre in lieu of tithes, is good; but to pay sometimes two pence and sometimes three pence, as the occupier of the land pleases, is bad for it’s uncertainty. Yet a custom, to pay a year’s improved value for a fine on a copyhold estate, is good: though the value is a thing uncertain: for the value may at any time be ascertained; and the maxim of law is, id certum est, quod certum reddi potest.
6. Customs, though established by consent, must be (when established) compulsory; and not left to the option of every man, whether he will use them or no. Therefore a custom, that all the inhabitants shall be rated toward the maintenance of a bridge, will be good; but a custom, that every man is to contribute thereto at his own pleasure, is idle and absurd, and, indeed, no custom at all.
7. Lastly, customs must be consistent with each other: one custom cannot be set up in opposition to another. For if both are really customs, then both are of equal antiquity, and both established by mutual consent: which to say of contradictory customs is absurd. Therefore, if one man prescribes that by custom he has a right to have windows looking into another’s garden; the other cannot claim a right by custom to stop up or obstruct those windows: for these two contradictory customs cannot both be good, nor both stand together. He ought rather to deny the existence of the former custom[40]
Next, as to the allowance of special customs. Customs, in derogation of the common law, must be construed strictly. Thus, by the custom of gavelkind, an infant of fifteen years may by one species of conveyance (called a deed of feoffment) convey away his lands in fee-simple, or for ever. Yet this custom does not impower him to use any other conveyance, or even to lease them for seven years: for the custom must be strictly pursued[41]. And, moreover, all special customs must submit to the king’s prerogative. Therefore, if the king purchases lands of the nature of gavelkind, where all the sons inherit equally; yet, upon the king’s demise, his eldest son shall succeed to those lands alone[42]. And thus much for the second part of the leges non scriptae, or those particular customs which affect particular persons or districts only.
III. The third branch of them are those peculiar laws, which by custom are adopted and used only in certain peculiar courts and jurisdictions. And by these I understand the civil and canon laws.
It may seem a little improper at first view to rank these laws under the head of leges non scriptae, or unwritten laws, seeing they are set forth by authority in their pandects, their codes, and their institutions; their councils, decrees, and decretals; and enforced by an immense number of expositions, decisions, and treatises of the learned in both branches of the law. But I do this, after the example of sir Matthew Hale[43], because it is most plain, that it is not on account of their being written laws, that either the canon law, or the civil law, have any obligation within this kingdom; neither do their force and efficacy depend upon their own intrinsic authority; which is the case of our written laws, or acts of parliament. They bind not the subjects of England, because their materials were collected from popes or emperors; were digested by Justinian, or declared to be authentic by Gregory. These considerations give them no authority here: for the legislature of England doth not, nor ever did, recognize any foreign power, as superior or equal to it in this kingdom; or as having the right to give law to any, the meanest, of it’s subjects. But all the strength that either the papal or imperial laws have obtained in this realm (or indeed in any other kingdom in Europe) is only because they have been admitted and received by immemorial usage and custom in some particular cases, and some particular courts; and then they form a branch of the leges non scriptae, or customary law: or else, because they are in some other cases introduced by consent of parliament, and then they owe their validity to the leges scriptae, or statute law. This is expressly declared in those remarkable words of the statute 25 Hen. VIII. c. 21. addressed to the king’s royal majesty.—“This your grace’s realm, recognizing no superior under God but only your grace, hath been and is free from subjection to any man’s laws, but only to such as have been devised, made, and ordained within this realm for the wealth of the same; or to such other as, by sufferance of your grace and your progenitors, the people of this your realm have taken at their free liberty, by their own consent, to be used among them; and have bound themselves by long use and custom to the observance of the same: not as to the observance of the laws of any foreign prince, potentate, or prelate; but as to the customed and antient laws of this realm, originally established as laws of the same, by the said sufferance, consents, and custom; and none otherwise.”
By the civil law, absolutely taken, is generally understood the civil or municipal law of the Roman empire, as comprized in the institutes, the code, and the digest of the emperor Justinian, and the novel constitutions of himself and some of his successors. Of which, as there will frequently be occasion to cite them, by way of illustrating our own laws, it may not be amiss to give a short and general account.
The Roman law (founded first upon the regal constitutions of their antient kings, next upon the twelve tables of the decemviri, then upon the laws or statutes enacted by the senate or people, the edicts of the praetor, and the responsa prudentum or opinions of learned lawyers, and lastly upon the imperial decrees, or constitutions of successive emperors) had grown to so great a bulk, or, as Livy expresses it[44], “tam immensus aliarum super alias acervatarum legum cumulus,” that they were computed to be many camels’ load by an author who preceded Justinian[45]. This was in part remedied by the collections of three private lawyers, Gregorius, Hermogenes, and Papirius; and then by the emperor Theodosius the younger, by whose orders a code was compiled, A. D. 438, being a methodical collection of all the imperial constitutions then in force: which Theodosian code was the only book of civil law received as authentic in the western part of Europe till many centuries after; and to this it is probable that the Franks and Goths might frequently pay some regard, in framing legal constitutions for their newly erected kingdoms. For Justinian commanded only in the eastern remains of the empire; and it was under his auspices, that the present body of civil law was compiled and finished by Tribonian and other lawyers, about the year 533.
This consists of, 1. The institutes, which contain the elements or first principles of the Roman law, in four books. 2. The digests, or pandects, in fifty books, containing the opinions and writings of eminent lawyers, digested in a systematical method. 3. A new code, or collection of imperial constitutions, the lapse of a whole century having rendered the former code, of Theodosius, imperfect. 4. The novels, or new constitutions, posterior in time to the other books, and amounting to a supplement to the code; containing new decrees of successive emperors, as new questions happened to arise. These form the body of Roman law, or corpus juris civilis, as published about the time of Justinian: which however fell soon into neglect and oblivion, till about the year 1130, when a copy of the digests was found at Amalfi in Italy; which accident, concurring with the policy of the Romish ecclesiastics[46], suddenly gave new vogue and authority to the civil law, introduced it into several nations, and occasioned that mighty inundation of voluminous comments, with which this system of law, more than any other, is now loaded.
The canon law is a body of Roman ecclesiastical law, relative to such matters as that church either has, or pretends to have, the proper jurisdiction over. This is compiled from the opinions of the antient Latin fathers, the decrees of general councils, the decretal epistles and bulles of the holy see. All which lay in the same disorder and confusion as the Roman civil law, till about the year 1151 one Gratian an Italian monk, animated by the discovery of Justinian’s pandects, reduced the ecclesiastical constitutions also into some method in three books, which he entitled concordia discordantium canonum, but which are generally known by the name of decretum Gratiani. These reached as low as the time of pope Alexander III. The subsequent papal decrees, to the pontificate of Gregory IX, were published in much the same method under the auspices of that pope, about the year 1230, in five books entitled decretalia Gregorii noni. A sixth book was added by Boniface VIII, about the year 1298, which is called sextus decretalium. The Clementine constitutions, or decrees of Clement V, were in like manner authenticated in 1317 by his successor John XXII; who also published twenty constitutions of his own, called the extravagantis Joannis: all which in some measure answer to the novels of the civil law. To these have been since added some decrees of later popes in five books, called extravagantes communes. And all these together, Gratian’s decree, Gregory’s decretals, the sixth decretal, the Clementine constitutions, and the extravagants of John and his successors, form the corpus juris canonici, or body of the Roman canon law.
Besides these pontificial collections, which during the times of popery were received as authentic in this island, as well as in other parts of christendom, there is also a kind of national canon law, composed of legatine and provincial constitutions, and adapted only to the exigencies of this church and kingdom. The legatine constitutions were ecclesiastical laws, enacted in national synods, held under the cardinals Otho and Othobon, legates from pope Gregory IX and pope Clement IV, in the reign of king Henry III about the years 1220 and 1268. The provincial constitutions are principally the decrees of provincial synods, held under divers arch-bishops of Canterbury, from Stephen Langton in the reign of Henry III to Henry Chichele in the reign of Henry IV; and adopted also by the province of York[47] in the reign of Henry VI. At the dawn of the reformation, in the reign of king Henry VIII, it was enacted in parliament[48] that a review should be had of the canon law; and, till such review should be made, all canons, constitutions, ordinances, and synodals provincial, being then already made, and not repugnant to the law of the land or the king’s prerogative, should still be used and executed. And, as no such review has yet been perfected, upon this statute now depends the authority of the canon law in England.
As for the canons enacted by the clergy under James I, in the year 1603, and never confirmed in parliament, it has been solemnly adjudged upon the principles of law and the constitution, that where they are not merely declaratory of the antient canon law, but are introductory of new regulations, they do not bind the laity[49]; whatever regard the clergy may think proper to pay them.
There are four species of courts in which the civil and canon laws are permitted under different restrictions to be used. 1. The courts of the arch-bishops and bishops and their derivative officers, usually called in our law courts christian, curiae christianitatis, or the ecclesiastical courts. 2. The military courts. 3. The courts of admiralty. 4. The courts of the two universities. In all, their reception in general, and the different degrees of that reception, are grounded intirely upon custom; corroborated in the latter instance by act of parliament, ratifying those charters which confirm the customary law of the universities. The more minute consideration of these will fall properly under that part of these commentaries which treats of the jurisdiction of courts. It will suffice at present to remark a few particulars relative to them all, which may serve to inculcate more strongly the doctrine laid down concerning them[50].
1. And, first, the courts of common law have the superintendency over these courts; to keep them within their jurisdictions, to determine wherein they exceed them, to restrain and prohibit such excess, and (in case of contumacy) to punish the officer who executes, and in some cases the judge who enforces, the sentence so declared to be illegal.
2. The common law has reserved to itself the exposition of all such acts of parliament, as concern either the extent of these courts or the matters depending before them. And therefore if these courts either refuse to allow these acts of parliament, or will expound them in any other sense than what the common law puts upon them, the king’s courts at Westminster will grant prohibitions to restrain and control them.
3. An appeal lies from all these courts to the king, in the last resort; which proves that the jurisdiction exercised in them is derived from the crown of England, and not from any foreign potentate, or intrinsic authority of their own.—And, from these three strong marks and ensigns of superiority, it appears beyond a doubt that the civil and canon laws, though admitted in some cases by custom in some courts, are only subordinate and leges sub graviori lege; and that, thus admitted, restrained, altered, new-modelled, and amended, they are by no means with us a distinct independent species of laws, but are inferior branches of the customary or unwritten laws of England, properly called, the king’s ecclesiastical, the king’s military, the king’s maritime, or the king’s academical, laws.
Let us next proceed to the leges scriptae, the written laws of the kingdom, which are statutes, acts, or edicts, made by the king’s majesty by and with the advice and consent of the lords spiritual and temporal and commons in parliament assembled[51]. The oldest of these now extant, and printed in our statute books, is the famous magna carta, as confirmed in parliament 9 Hen. III: though doubtless there were many acts before that time, the records of which are now lost, and the determinations of them perhaps at present currently received for the maxims of the old common law.
The manner of making these statutes will be better considered hereafter, when we examine the constitution of parliaments. At present we will only take notice of the different kinds of statutes; and of some general rules with regard to their construction[52].
First, as to their several kinds. Statutes are either general or special, public or private. A general or public act is an universal rule, that regards the whole community; and of this the courts of law are bound to take notice judicially and ex officio; without the statute being particularly pleaded, or formally set forth by the party who claims an advantage under it. Special or private acts are rather exceptions than rules, being those which only operate upon particular persons, and private concerns; such as the Romans intitled senatus-decreta, in contradistinction to the senatus-consulta, which regarded the whole community[53]: and of these the judges are not bound to take notice, unless they be formally shewn and pleaded. Thus, to shew the distinction, the statute 13 Eliz. c. 10. to prevent spiritual persons from making leases for longer terms than twenty one years, or three lives, is a public act; it being a rule prescribed to the whole body of spiritual persons in the nation: but an act, to enable the bishop of Chester to make a lease to A. B. for sixty years, is an exception to this rule; it concerns only the parties and the bishop’s successors; and is therefore a private act.
Statutes also are either declaratory of the common law, or remedial of some defects therein. Declaratory, where the old custom of the kingdom is almost fallen into disuse, or become disputable; in which case the parliament has thought proper, in perpetuum rei testimonium, and for avoiding all doubts and difficulties, to declare what the common law is and ever has been. Thus the statute of treasons, 25 Edw. III. cap. 2. doth not make any new species of treasons; but only, for the benefit of the subject, declares and enumerates those several kinds of offence, which before were treason at the common law. Remedial statutes are those which are made to supply such defects, and abridge such superfluities, in the common law, as arise either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of unlearned judges, or from any other cause whatsoever. And this being done, either by enlarging the common law where it was too narrow and circumscribed, or by restraining it where it was too lax and luxuriant, hath occasioned another subordinate division of remedial acts of parliament into enlarging and restraining statutes. To instance again in the case of treason. Clipping the current coin of the kingdom was an offence not sufficiently guarded against by the common law: therefore it was thought expedient by statute 5 Eliz. c. 11. to make it high treason, which it was not at the common law: so that this was an enlarging statute. At common law also spiritual corporations might lease out their estates for any term of years, till prevented by the statute 13 Eliz. before-mentioned: this was therefore a restraining statute.
Secondly, the rules to be observed with regard to the construction of statutes are principally these which follow.
1. There are three points to be considered in the construction of all remedial statutes; the old law, the mischief, and the remedy: that is, how the common law stood at the making of the act; what the mischief was, for which the common law did not provide; and what remedy the parliament hath provided to cure this mischief. And it is the business of the judges so to construe the act, as to suppress the mischief and advance the remedy[54]. Let us instance again in the same restraining statute of the 13 Eliz. By the common law ecclesiastical corporations might let as long leases as they thought proper: the mischief was, that they let long and unreasonable leases, to the impoverishment of their successors: the remedy applied by the statute was by making void all leases by ecclesiastical bodies for longer terms than three lives or twenty one years. Now in the construction of this statute it is held, that leases, though for a longer term, if made by a bishop, are not void during the bishop’s life; or, if made by a dean and chapter, they are not void during the life of the dean: for the act was made for the benefit and protection of the successor[55]. The mischief is therefore sufficiently suppressed by vacating them after the death of the grantors; but the leases, during their lives, being not within the mischief, are not within the remedy.
2. A statute, which treats of things or persons of an inferior rank, cannot by any general words be extended to those of a superior. So a statute, treating of “deans, prebendaries, parsons, vicars, and others having spiritual promotion,” is held not to extend to bishops, though they have spiritual promotion; deans being the highest persons named, and bishops being of a still higher order[56].
3. Penal statutes must be construed strictly. Thus the statute 1 Edw. VI. c. 12. having enacted that those who are convicted of stealing horses should not have the benefit of clergy, the judges conceived that this did not extend to him that should steal but one horse, and therefore procured a new act for that purpose in the following year[57]. And, to come nearer our own times, by the statute 14 Geo. II. c. 6. stealing sheep, or other cattle, was made felony without benefit of clergy. But these general words, “or other cattle,” being looked upon as much too loose to create a capital offence, the act was held to extend to nothing but mere sheep. And therefore, in the next sessions, it was found necessary to make another statute, 15 Geo. II. c. 34. extending the former to bulls, cows, oxen, steers, bullocks, heifers, calves, and lambs, by name.
4. Statutes against frauds are to be liberally and beneficially expounded. This may seem a contradiction to the last rule; most statutes against frauds being in their consequences penal. But this difference is here to be taken: where the statute acts upon the offender, and inflicts a penalty, as the pillory or a fine, it is then to be taken strictly: but when the statute acts upon the offence, by setting aside the fraudulent transaction, here it is to be construed liberally. Upon this footing the statute of 13 Eliz. c. 5. which avoids all gifts of goods, &c, made to defraud creditors and others, was held to extend by the general words to a gift made to defraud the queen of a forfeiture[58].
5. One part of a statute must be so construed by another, that the whole may (if possible) stand: ut res magis valeat, quam pereat. As if land be vested in the king and his heirs by act of parliament, saving the right of A; and A has at that time a lease of it for three years: here A shall hold it for his term of three years, and afterwards it shall go to the king. For this interpretation furnishes matter for every clause of the statute to work and operate upon. But
6. A saving, totally repugnant to the body of the act, is void. If therefore an act of parliament vests land in the king and his heirs, saving the right of all persons whatsoever; or vests the land of A in the king, saving the right of A: in either of these cases the saving is totally repugnant to the body of the statute, and (if good) would render the statute of no effect or operation; and therefore the saving is void, and the land vests absolutely in the king[59].
7. Where the common law and a statute differ, the common law gives place to the statute; and an old statute gives place to a new one. And this upon the general principle laid down in the last section, that “leges posteriores priores contrarias abrogant.” But this is to be understood, only when the latter statute is couched in negative terms, or by it’s matter necessarily implies a negative. As if a former act says, that a juror upon such a trial shall have twenty pounds a year; and a new statute comes and says, he shall have twenty marks: here the latter statute, though it does not express, yet necessarily implies a negative, and virtually repeals the former. For if twenty marks be made qualification sufficient, the former statute which requires twenty pounds is at an end[60]. But if both acts be merely affirmative, and the substance such that both may stand together, here the latter does not repeal the former, but they shall both have a concurrent efficacy. If by a former law an offence be indictable at the quarter sessions, and a latter law makes the same offence indictable at the assises; here the jurisdiction of the sessions is not taken away, but both have a concurrent jurisdiction, and the offender may be prosecuted at either; unless the new statute subjoins express negative words, as, that the offence shall be indictable at the assises, and not elsewhere[61].
8. If a statute, that repeals another, is itself repealed afterwards, the first statute is hereby revived, without any formal words for that purpose. So when the statutes of 26 and 35 Hen. VIII, declaring the king to be the supreme head of the church, were repealed by a statute 1 & 2 Philip and Mary, and this latter statute was afterwards repealed by an act of 1 Eliz. there needed not any express words of revival in queen Elizabeth’s statute, but these acts of king Henry were impliedly and virtually revived[62].
9. Acts of parliament derogatory from the power of subsequent parliaments bind not. So the statute 11 Hen. VII. c. 1. which directs, that no person for assisting a king de facto shall be attainted of treason by act of parliament or otherwise, is held to be good only as to common prosecutions for high treason; but will not restrain or clog any parliamentary attainder[63]. Because the legislature, being in truth the sovereign power, is always of equal, always of absolute authority: it acknowleges no superior upon earth, which the prior legislature must have been, if it’s ordinances could bind the present parliament. And upon the same principle Cicero, in his letters to Atticus, treats with a proper contempt these restraining clauses which endeavour to tie up the hands of succeeding legislatures. “When you repeal the law itself, says he, you at the same time repeal the prohibitory clause, which guards against such repeal[64].”
10. Lastly, acts of parliament that are impossible to be performed are of no validity; and if there arise out of them collaterally any absurd consequences, manifestly contradictory to common reason, they are, with regard to those collateral consequences, void. I lay down the rule with these restrictions; though I know it is generally laid down more largely, that acts of parliament contrary to reason are void. But if the parliament will positively enact a thing to be done which is unreasonable, I know of no power that can control it: and the examples usually alleged in support of this sense of the rule do none of them prove, that where the main object of a statute is unreasonable the judges are at liberty to reject it; for that were to set the judicial power above that of the legislature, which would be subversive of all government. But where some collateral matter arises out of the general words, and happens to be unreasonable; there the judges are in decency to conclude that this consequence was not foreseen by the parliament, and therefore they are at liberty to expound the statute by equity, and only quoad hoc disregard it. Thus if an act of parliament gives a man power to try all causes, that arise within his manor of Dale; yet, if a cause should arise in which he himself is party, the act is construed not to extend to that, because it is unreasonable that any man should determine his own quarrel[65]. But, if we could conceive it possible for the parliament to enact, that he should try as well his own causes as those of other persons, there is no court that has power to defeat the intent of the legislature, when couched in such evident and express words, as leave no doubt whether it was the intent of the legislature or no.
These are the several grounds of the laws of England: over and above which, equity is also frequently called in to assist, to moderate, and to explain them. What equity is, and how impossible in it’s very essence to be reduced to stated rules, hath been shewn in the preceding section. I shall therefore only add, that there are courts of this kind established for the benefit of the subject, to correct and soften the rigor of the law, when through it’s generality it bears too hard in particular cases; to detect and punish latent frauds, which the law is not minute enough to reach; to enforce the execution of such matters of trust and confidence, as are binding in conscience, though perhaps not strictly legal; to deliver from such dangers as are owing to misortune or oversight; and, in short, to relieve in all such cases as are, bona fide, objects of relief. This is the business of our courts of equity, which however are only conversant in matters of property. For the freedom of our constitution will not permit, that in criminal cases a power should be lodged in any judge, to construe the law otherwise than according to the letter. This caution, while it admirably protects the public liberty, can never bear hard upon individuals. A man cannot suffer more punishment than the law assigns, but he may suffer less. The laws cannot be strained by partiality to inflict a penalty beyond what the letter will warrant; but, in cases where the letter induces any apparent hardship, the crown has the power to pardon.
↑ Caes. de b. G. lib. 6. c. 13.
↑ Spelm. Gl. 362.
↑ c. 17.
↑ See his proposals for a digest.
↑ c. 1.
↑ Hal. Hist. 55.
↑ in Hen. II.
↑ in Edw. Confessor.
↑ in Seld. ad Eadmer. 6.
↑ Mod. Un. Hist xxii. 135
↑ Ibid. xx. 211.
↑ Ibid. xxxiii. 21. 58.
↑ cap. 8.
↑ Seld. review of Tith. c. 8.
↑ Herein agreeing with the civil law, Ff. 1. 3. 20. 21. “Non ominum, quae a majeribus nostris constituta sunt, ratio reddi potest. Et ideo rationes eorum quae constitauntur, inquiri non oportet: alioquin multa ex his, quae certa sunt, subvertuntur.”
↑ “Si imperialis majestas causam cognitionaliter examinaverit, et partibus cominus constitutis sententiam dixerit, omnes omnino judices, qui sub nostro imperio sunt, sciant hanc esse legem, non solum illi causae pro qua producia est, sed et in omnibus similibus.” C. 1. 14. 12.
↑ His reports for instance are stiled, κατ’ εξοχην, the reports; and in quoting them we usually say, 1 or 2 Rep. not 1 or 2 Coke’s Rep. as in citing other authors. The reports of judge Croke are also cited in a peculiar manner, by the name of those princes, in whose reigns the cases reported in his three volumes were determined; viz. queen Elizabeth, king James, and king Charles the first; as well as by the number of each volume. For sometimes we call them 1, 2, and 3 Cro. but more commonly Cro. Eliz. Cro. Jac. and Cro. Car.
↑ It is usually cited either by the name of Co. Litt. or as 1 Inst.
↑ These are cited as 2, 3, or 4 Inst. without any author’s name. An honorary distinction, which, we observed, is paid to the works of no other writer; the generality of reports and other tracts being quoted in the name of the compiler, as 2 Ventris, 4 Leonard, 1 Siderfin, and the like.
↑ Ff. 1. 3. 32.
↑ Ff. 1. 4. 1.
↑ C. 1. 14. 12.
↑ C. 1. 23. 5.
↑ Mag. Cart. c. 9.—1. Edw. III. st. 2. c. 9.—14 Edw. —and 2 Hen.
↑ 8 Rep. 126. Cro. Car. 347.
↑ Winch. 24.
↑ Co. Litt. 175.
↑ Litt. §. 265.
↑ Dr. & St. 1. 10.
↑ Cro. Car. 516.
↑ Hob. 85.
↑ Litt. §. 212. 4 Inst. 274.
↑ Co. Litt. 113.
↑ Ibid. 114.
↑ Ibid.
↑ Litt. §. 212.
↑ 1 Inst. 62.
↑ Co. Copyh. §. 33.
↑ 1 Roll. Abr. 565.
↑ 9 Rep. 58.
↑ Co. Cop. §. 33.
↑ Co. Litt. 15.
↑ Hist. C. L. c. 2.
↑ l. 3. c. 34.
↑ Taylor’s elements of civil law. 17.
↑ See §. 1. pag. 18.
↑ Burn’s eccl. law, pref. viii.
↑ Statute 25 Hen. VIII. c. 19; revived and confirmed by 1 Eliz. c. 1.
↑ Stra. 1057.
↑ Hale Hist. c. 2.
↑ 8 Rep. 20.
↑ The method of citing these acts of parliament is various. Many of our antient statutes are called after the name of the place, where the parliament was held that made them; as the statutes of Merton and Marlbridge, of Westminster, Glocester, and Winchester. Others are denominated entirely from their subject; as the statutes of Wales and Ireland, the articuli cleri, and the prerogativa regis. Some are distinguished by their initial words; a method of citing very antient, being used by the Jews in denominating the books of the pentateuch; by the christian church in distinguishing their hymns and divine offices; by the Romanists in describing their papal bulles; and in short by the whole body of antient civilians and canonists, among whom this method of citation generally prevailed, not only with regard to chapters, but inferior sections also: in imitation of all which we still call some of our old statutes by their initial words, as the statute of quia emptores, and that of circumspecte agatis. But the most usual method of citing them, especially since the time of Edward the second, is by naming the year of the king’s reign in which the statute was made, together with the chapter, or particular act, according to it’s numeral order; as, 9 Geo. II. c. 4. For all the acts of one session of parliament taken together make properly but one statute; and therefore when two sessions have been held in one year; we usually mention stat. 1. or 2. Thus the bill of rights is cited, as 1 W. & M. st. 2. c. 2. signifying that it is the second chapter or act, of the second statute or the laws made in the second sessions of parliament, held in the first year of king Wiiliam and queen Mary.
↑ Gravin. Orig. 1. §. 24.
↑ 3 Rep. 7. Co. Litt. 11. 42.
↑ Co. Litt. 45. 3 Rep. 60.
↑ 2 Rep. 46.
↑ 2 & 3 Edw. VI. c. 33. Bac. Elem. c. 12.
↑ 3 Rep. 82.
↑ 1 Rep. 47.
↑ Jenk. Cent. 2. 73.
↑ 11 Rep. 63.
↑ 4 Inst. 325.
↑ 4 Inst. 43.
↑ Cum lex abrogatur, illud ipsum abrogator, quo non eam abrogari oporteat. l. 3. ep. 23.
↑ 8 Rep. 118.
Section the fourth.
Of the Countries subject to the Laws of England.
The kingdom of England, over which our municipal laws have jurisdiction, includes not, by the common law, either Wales, Scotland, or Ireland, or any other part of the king’s dominions, except the territory of England only. And yet the civil laws and local customs of this territory do now obtain, in part or in all, with more or less restrictions, in these and many other adjacent countries; of which it will be proper first to take a review, before we consider the kingdom of England itself, the original and proper subject of these laws.
Wales had continued independent of England, unconquered and uncultivated, in the primitive pastoral state which Caesar and Tacitus ascribe to Britain in general, for many centuries; even from the time of the hostile invasions of the Saxons, when the antient and christian inhabitants of the island retired to those natural intrenchments, for protection from their pagan visitants. But when these invaders themselves were converted to christianity, and settled into regular and potent governments, this retreat of the antient Britons grew every day narrower; they were overrun by little and little, gradually driven from one fastness to another, and by repeated losses abridged of their wild independence. Very early in our history we find their princes doing homage to the crown of England; till at length in the reign of Edward the first, who may justly be stiled the conqueror of Wales, the line of their antient princes was abolished, and the king of England’s eldest son became, as a matter of course, their titular prince: the territory of Wales being then entirely re-annexed (by a kind of feodal resumption) to the dominion of the crown of England[1]; or, as the statute of Rutland[2] expresses it, “terra Walliae cum incolis suis, prius regi jure feodali subjecta, (of which homage was the sign) jam in proprietatis dominium totaliter et cum integritate conversa est, et coronae regni Angliae tanquam pars corporis ejusdem annexa et unita.” By the statute also of Wales[3] very material alterations were made in divers parts of their laws, so as to reduce them nearer to the English standard, especially in the forms of their judicial proceedings: but they still retained very much of their original polity, particularly their rule of inheritance, viz. that their lands were divided equally among all the issue male, and did not descend to the eldest son alone. By other subsequent statutes their provincial immunities were still farther abridged: but the finishing stroke to their independency, was given by the statute 27 Hen. VIII. c. 26. which at the same time gave the utmost advancement to their civil prosperity, by admitting them to a thorough communication of laws with the subjects of England. Thus were this brave people gradually conquered into the enjoyment of true liberty; being insensibly put upon the same footing, and made fellow-citizens with their conquerors. A generous method of triumph, which the republic of Rome practised with great success; till she reduced all Italy to her obedience, by admitting the vanquished states to partake of the Roman privileges.
It is enacted by this statute 27 Hen. VIII, 1. That the dominion of Wales shall be for ever united to the kingdom of England. 2. That all Welchmen born shall have the same liberties as other the king’s subjects. 3. That lands in Wales shall be inheritable according to the English tenures and rules of descent. 4. That the laws of England, and no other, shall be used in Wales: besides many other regulations of the police of this principality. And the statute 34 & 35 Hen. VIII. c. 26. confirms the same, adds farther regulations, divides it into twelve shires, and, in short, reduces it into the same order in which it stands at this day; differing from the kingdom of England in only a few particulars, and those too of the nature of privileges, (such as having courts within itself, independent of the process of Westminster hall) and some other immaterial peculiarities, hardly more than are to be found in many counties of England itself.
The kingdom of Scotland, notwithstanding the union of the crowns on the accesson of their king James VI to that of England, continued an entirely separate and distinct kingdom for above a century, though an union had been long projected; which was judged to be the more easy to be done, as both kingdoms were antiently under the same government, and still retained a very great resemblance, though far from an identity, in their laws. By an act of parliament 1 Jac. I. c. 1. it is declared, that, these two, mighty, famous, and antient kingdoms were formerly one. And sir Edward Coke observes[4], how marvellous a conformity there was, not only in the religion and language of the two nations, but also in their antient laws, the descent of the crown, their parliaments, their titles of nobility, their officers of state and of justice, their writs, their customs, and even the language of their laws. Upon which account he supposes the common law of each to have been originally the same, especially as their most antient and authentic book, called regiam majestatem and containing the rules of their antient common law, is extremely similar to that of Glanvil, which contains the principles of ours, as it stood in the reign of Henry II. And the many diversities, subsisting between the two laws at present, may be well enough accounted for, from a diversity of practice in two large and uncommunicating jurisdictions, and from the acts of two distinct and independent parliaments, which have in many points altered and abrogated the old common law of both kingdoms.
However, sir Edward Coke, and the politicians of that time, conceived great difficulties in carrying on the projected union: but these were at length overcome, and the great work was happily effected in 1707, 5 Anne; when twenty five articles of union were agreed to by the parliaments of both nations: the purport of the most considerable being as follows;
1. That on the first of May 1707, and for ever after, the kingdoms of England and Scotland shall be united into one kingdom, by the name of Great Britain.
2. The succession to the monarchy of Great Britain shall be the same as was before settled with regard to that of England.
3. The united kingdom shall be represented by one parliament.
4. There shall be a communication of all rights and privileges between the subjects of both kingdoms, except where it is otherwise agreed.
9. When England raises 2,000,000l. by a land tax, Scotland shall raise 48,000l.
16, 17. The standards of the coin, of weights, and of measures, shall be reduced to those of England, throughout the united kingdoms.
18. The laws relating to trade, customs, and the excise, shall be the same in Scotland as in England. But all the other laws of Scotland shall remain in force; but alterable by the parliament of Great Britain. Yet with this caution: that laws relating to public policy are alterable at the discretion of the parliament; laws relating to private right are not to be altered but for the evident utility of the people of Scotland.
22. Sixteen peers are to be chosen to represent the peerage of Scotland in parliament, and forty five members to sit in the house of commons.
23. The sixteen peers of Scotland shall have all privileges of parliament: and all peers of Scotland shall be peers of Great Britain, and rank next after those of the same degree at the time of the union, and shall have all privileges of peers, except sitting in the house of lords and voting on the trial of a peer.
These are the principal of the twenty five articles of union, which are ratified and confirmed by statute 5 Ann. c. 8. in which statute there are also two acts of parliament recited; the one of Scotland, whereby the church of Scotland, and also the four universities of that kingdom, are established for ever, and all succeeding sovereigns are to take an oath inviolably to maintain the same; the other of England, 5 Ann. c. 6. whereby the acts of uniformity of 13 Eliz. and 13 Car. II. (except as the same had been altered by parliament at that time) and all other acts then in force for the preservation of the church of England, are declared perpetual; and it is stipulated, that every subsequent king and queen shall take an oath inviolably to maintain the same within England, Ireland, Wales, and the town of Berwick upon Tweed. And it is enacted, that these two acts “shall for ever be observed as fundamental and essential conditions of the union.”
Upon these articles, and act of union, it is to be observed, 1. That the two kingdoms are now so inseparably united, that nothing can ever disunite them again; unless perhaps an infringement of those points which, when they were separate and independent nations, it was mutually stipulated should be “fundamental and essential conditions of the union[5].” 2. That whatever else may be deemed “fundamental and essential conditions,” the preservation of the two churches, of England and Scotland, in the same state that they were in at the time of the union, and the maintenance of the acts of uniformity which establish our common prayer, are expressly declared so to be. 3. That therefore any alteration in the constitutions of either of those churches, or in the liturgy of the church of England, would be an infringement of these “fundamental and essential conditions,” and greatly endanger the union. 4. That the municipal laws of Scotland are ordained to be still observed in that part of the island, unless altered by parliament; and, as the parliament has not yet thought proper, except in a few instances, to alter them, they still (with regard to the particulars unaltered) continue in full force. Wherefore the municipal or common laws of England are, generally speaking, of no force or validity in Scotland; and, of consequence, in the ensuing commentaries, we shall have very little occasion to mention, any farther than sometimes by way of illustration, the municipal laws of that part of the united kingdoms.
The town of Berwick upon Tweed was originally part of the kingdom of Scotland; and, as such, was for a time reduced by king Edward I into the possession of the crown of England: and, during such it’s subjection, it received from that prince a charter, which (after it’s subsequent cession by Edward Balliol, to be for ever united to the crown and realm of England) was confirmed by king Edward III, with some additions; particularly that it should be governed by the laws and usages which it enjoyed during the time of king Alexander, that is, before it’s reduction by Edward I. It’s constitution was new-modelled, and put upon an English footing by a charter of king James I: and all it’s liberties, franchises, and customs, were confirmed in parliament by the statutes 22 Edw. IV. c. 8. and 2 Jac. I. c. 28. Though therefore it hath some local peculiarities, derived from the antient laws of Scotland[6], yet it is clearly part of the realm of England, being represented by burgesses in the house of commons, and bound by all acts of the British parliament, whether specially named or otherwise. And therefore it was (perhaps superfluously) declared by statute 20 Geo. II. c. 42. that, where England only is mentioned in any act of parliament, the same notwithstanding hath and shall be deemed to comprehend the dominion of Wales and town of Berwick upon Tweed. And, though certain of the king’s writs or processes of the courts of Westminster do not usually run into Berwick, any more than the principality of Wales, yet it hath been solemnly adjudged[7] that all prerogative writs (as those of mandamus, prohibition, habeas corpus, certiorari, &c,) may issue to Berwick as well as to every other of the dominions of the crown of England, and that indictments and other local matters arising in the town of Berwick may be tried by a jury of the county of Northumberland.
As to Ireland, that is still a distinct kingdom; though a dependent, subordinate kingdom. It was only entitled the dominion or lordship of Ireland[8], and the king’s stile was no other than dominus Hiberniae, lord of Ireland, till the thirty third year of king Henry the eighth; when he assumed the title of king, which is recognized by act of parliament 35 Hen. VIII. c. 3. But, as Scotland and England are now one and the same kingdom, and yet differ in their municipal laws; so England and Ireland are, on the other hand, distinct kingdoms, and yet in general agree in their laws. The inhabitants of Ireland are, for the most part, descended from the English, who planted it as a kind of colony, after the conquest of it by king Henry the second; and the laws of England were then received and sworn to by the Irish nation, assembled at the council of Lismore[9]. And as Ireland, thus conquered, planted, and governed, still continues in a state of dependence, it must necessarily conform to, and be obliged by, such laws as the superior state thinks proper to prescribe.
At the time of this conquest the Irish were governed by what they called the Brehon law, so stiled from the Irish name of judges, who were denominated Brehons[10]. But king John in the twelfth year of his reign went into Ireland, and carried over with him many able sages of the law; and there by his letters patent, in right of the dominion of conquest, is said to have ordained and established that Ireland should be governed by the laws of England[11]: which letters patent sir Edward Coke[12] apprehends to have been there confirmed in parliament. But to this ordinance many of the Irish were averse to conform, and still stuck to their Brehon law: so that both Henry the third[13] and Edward the first[14] were obliged to renew the injunction; and at length in a parliament holden at Kilkenny, 40 Edw. III, under Lionel duke of Clarence, the then lieutenant of Ireland, the Brehon law was formally abolished, it being unanimously declared to be indeed no law, but a lewd custom crept in of later times. And yet, even in the reign of queen Elizabeth, the wild natives still kept and preserved their Brehon law; which is described[15] to have been “a rule of right unwritten, but delivered by tradition from one to another, in which oftentimes there appeared great shew of equity in determining the right between party and party, but in many things repugnant quite both to God’s law and man’s.” The latter part of this character is alone ascribed to it, by the laws before-cited of Edward the first and his grandson.
But as Ireland was a distinct dominion, and had parliaments of it’s own, it is to be observed, that though the immemorial customs, or common law, of England were made the rule of justice in Ireland also, yet no acts of the English parliament, since the twelfth of king John, extended into that kingdom; unless it were specially named, or included under general words, such as, “within any of the king’s dominions.” And this is particularly expressed, and the reason given in the year books[16]: “a tax granted by the parliament of England shall not bind those of Ireland, because they are not summoned to our parliament:” and again, “Ireland hath a parliament of it’s own, and maketh and altereth laws; and our statutes do not bind them, because they do not send knights to our parliament: but their persons are the king’s subjects, like as the inhabitants of Calais, Gascoigny, and Guienne, while they continued under the king’s subjection.” The general run of laws, enacted by the superior state, are supposed to be calculated for it’s own internal government, and do not extend to it’s distant dependent countries; which, bearing no part in the legislature, are not therefore in it’s ordinary and daily contemplation. But, when the sovereign legislative power sees it necessary to extend it’s care to any of it’s subordinate dominions, and mentions them expressly by name or includes them under general words, there can be no doubt but then they are bound by it’s laws[17].
The original method of passing statutes in Ireland was nearly the same as in England, the chief governor holding parliaments at his pleasure, which enacted such laws as they thought proper[18]. But an ill use being made of this liberty, particularly by lord Gormanstown, deputy-lieutenant in the reign of Edward IV[19], a set of statutes were there enacted in the 10 Hen. VII. (sir Edward Poynings being then lord deputy, whence they are called Poynings’ laws) one of which[20], in order to restrain the power as well of the deputy as the Irish parliament, provides, 1. That, before any parliament be summoned or holden, the chief governor and council of Ireland shall certify to the king under the great seal of Ireland the considerations and causes thereof, and the articles of the acts proposed to be passed therein. 2. That after the king, in his council of England, shall have considered, approved, or altered the said acts or any of them, and certified them back under the great seal of England, and shall have given licence to summon and hold a parliament, then the same shall be summoned and held; and therein the said acts so certified, and no other, shall be proposed, received, or rejected[21]. But as this precluded any law from being proposed, but such as were preconceived before the parliament was in being, which occasioned many inconveniences and made frequent dissolutions necessary, it was provided by the statute of Philip and Mary before cited, that any new propositions might be certified to England in the usual forms, even after the summons and during the session of parliament. By this means however there was nothing left to the parliament in Ireland, but a bare negative or power of rejecting, not of proposing or altering, any law. But the usage now is, that bills are often framed in either house, under the denomination of “heads for a bill or bills;” and in that shape they are offered to the consideration of the lord lieutenant and privy council: who, upon such parliamentary intimation, or otherwise upon the application of private persons, receive and transmit such heads, or reject them without any transmission to England. And, with regard to Poynings’ law in particular, it cannot be repealed or suspended, unless the bill for that purpose, before it be certified to England, be approved by both the houses[22].
But the Irish nation, being excluded from the benefit of the English statutes, were deprived of many good and profitable laws, made for the improvement of the common law: and, the measure of justice in both kingdoms becoming thereby no longer uniform, therefore it was enacted by another of Poynings’ laws[23], that all acts of parliament, before made in England, should be of force within the realm of Ireland[24]. But, by the same rule that no laws made in England, between king John’s time and Poynings’ law, were then binding in Ireland, it follows that no acts of the English parliament made since the 10 Hen. VII. do now bind the people of Ireland, unless specially named or included under general words[25]. And on the other hand it is equally clear, that where Ireland is particularly named, or is included under general words, they are bound by such acts of parliament. For this follows from the very nature and constitution of a dependent state: dependence being very little else, but an obligation to conform to the will or law of that superior person or state, upon which the inferior depends. The original and true ground of this superiority, in the present case, is what we usually call, though somewhat improperly, the right of conquest: a right allowed by the law of nations, if not by that of nature; but which in reason and civil policy can mean nothing more, than that, in order to put an end to hostilities, a compact is either expressly or tacitly made between the conqueror and the conquered, that if they will acknowlege the victor for their master, he will treat them for the future as subjects, and not as enemies[26].
But this state of dependence being almost forgotten, and ready to be disputed by the Irish nation, it became necessary some years ago to declare how that matter really stood: and therefore by statute 6 Geo. I. c. 5. it is declared, that the kingdom of Ireland ought to be subordinate to, and dependent upon, the imperial crown of Great Britain, as being inseparably united thereto; and that the king’s majesty, with the consent of the lords and commons of Great Britain in parliament, hath power to make laws to bind the people of Ireland.
Thus we see how extensively the laws of Ireland communicate with those of England: and indeed such communication is highly necessary, as the ultimate resort from the courts of justice in Ireland is, as in Wales, to those in England; a writ of error (in the nature of an appeal) lying from the king’s bench in Ireland to the king’s bench in England[27], as the appeal from the chancery in Ireland lies immediately to the house of lords here: it being expressly declared, by the same statute 6 Geo. I. c. 5. that the peers of Ireland have no jurisdiction to affirm or reverse any judgments or decrees whatsoever. The propriety, and even necessity, in all inferior dominions, of this constitution, “that, though justice be in general administred by courts of their own, yet that the appeal in the last resort ought to be to the courts of the superior state,” is founded upon these two reasons. 1. Because otherwise the law, appointed or permitted to such inferior dominion, might be insensibly changed within itself, without the assent of the superior. 2. Because otherwise judgments might be given to the disadvantage or diminution of the superiority; or to make the dependence to be only of the person of the king, and not of the crown of England[28].
With regard to the other adjacent islands which are subject to the crown of Great Britain, some of them (as the isle of Wight, of Portland, of Thanet, &c.) are comprized within some neighbouring county, and are therefore to be looked upon as annexed to the mother island, and part of the kingdom of England. But there are others, which require a more particular consideration.
And, first, the isle of Man is a distinct territory from England and is not governed by our laws; neither doth any act of parliament extend to it, unless it be particularly named therein; and then an act of parliament is binding there[29]. It was formerly a subordinate feudatory kingdom, subject to the kings of Norway; then to king John and Henry III of England; afterwards to the kings of Scotland; and then again to the crown of England: and at length we find king Henry IV claiming the island by right of conquest; and disposing of it to the earl of Northumberland; upon whose attainder it was granted (by the name of the lordship of Man) to sir John de Stanley by letters patent 7 Hen. IV[30]. In his lineal descendants it continued for eight generations, till the death of Ferdinando earl of Derby, A. D. 1594; when a controversy arose concerning the inheritance thereof, between his daughters and William his surviving brother: upon which, and a doubt that was started concerning the validity of the original patent[31], the island was seised into the queen’s hands, and afterwards various grants were made of it by king James the first; all which being expired or surrendered, it was granted afresh in 7 Jac. I. to William earl of Derby, and the heirs male of his body, with remainder to his heirs general; which grant was the next year confirmed by act of parliament, with a restraint of the power of alienation by the said earl and his issue male. On the death of James earl of Derby, A. D. 1735, the male line of earl William failing, the duke of Atholl succeeded to the island as heir general by a female branch. In the mean time, though the title of king had long been disused, the earls of Derby, as lords of Man, had maintained a sort of royal authority therein; by assenting or dissenting to laws, and exercising an appellate jurisdiction. Yet, though no English writ, or process from the courts of Westminster, was of any authority in Man, an appeal lay from a decree of the lord of the island to the king of Great Britain in council[32]. But, the distinct jurisdiction of this little subordinate royalty being found inconvenient for the purposes of public justice, and for the revenue, (it affording a commodious asylum for debtors, outlaws, and smugglers) authority was given to the treasury by statute 12 Geo. I. c. 28. to purchase the interest of the then proprietors for the use of the crown: which purchase was at length completed in the year 1765, and confirmed by statutes 5 Geo. III. c. 26 and 39. whereby the whole island and all it’s dependencies, so granted as aforesaid, (except the landed property of the Atholl family, their manerial rights and emoluments, and the patronage of the bishoprick[33] and other ecclesiastical benefices) are unalienably vested in the crown, and subjected to the regulations of the British excise and customs.
The islands of Jersey, Guernsey, Sark, Alderney, and their appendages, were parcel of the duchy of Normandy, and were united to the crown of England by the first princes of the Norman line. They are governed by their own laws, which are for the most part the ducal customs of Normandy, being collected in an antient book of very great authority, entituled, le grand coustumier. The king’s writ, or process from the courts of Westminster, is there of no force; but his commission is. They are not bound by common acts of our parliaments, unless particularly named[34]. All causes are originally determined by their own officers, the bailiffs and jurats of the islands; but an appeal lies from them to the king in council, in the last resort.
Besides these adjacent islands, our more distant plantations in America, and elsewhere, are also in some respects subject to the English laws. Plantations, or colonies in distant countries, are either such where the lands are claimed by right of occupancy only, by finding them desart and uncultivated, and peopling them from the mother country; or where, when already cultivated, they have been either gained by conquest, or ceded to us by treaties. And both these rights are founded upon the law of nature, or at least upon that of nations. But there is a difference between these two species of colonies, with respect to the laws by which they are bound. For it hath been held[35], that if an uninhabited country be discovered and planted by English subjects, all the English laws then in being, which are the birthright of every subject[36], are immediately there in force. But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law, as is applicable to their own situation and the condition of an infant colony; such, for instance, as the general rules of inheritance, and of protection from personal injuries. The artificial refinements and distinctions incident to the property of a great and commercial people, the laws of police and revenue, (such especially as are inforced by penalties) the mode of maintenance for the established clergy, the jurisdiction of spiritual courts, and a multitude of other provisions, are neither necessary nor convenient for them, and therefore are not in force. What shall be admitted and what rejected, at what times, and under what restrictions, must, in case of dispute, be decided in the first instance by their own provincial judicature, subject to the revision and control of the king in council, the whole of their constitution being also liable to be new-modelled and reformed, by the general superintending power of the legislature in the mother country. But in conquered or ceded countries, that have already laws of their own, the king may indeed alter and change those laws; but, till he does actually change them, the antient laws of the country remain, unless such as are against the law of God, as in the case of an infidel country[37]. Our American plantations are principally of this latter sort, being obtained in the last century either by right of conquest and driving out the natives (with what natural justice I shall not at present enquire) or by treaties. And therefore the common law of England, as such, has no allowance or authority there; they being no part of the mother country, but distinct (though dependent) dominions. They are subject however to the control of the parliament; though (like Ireland, Man, and the rest) not bound by any acts of parliament, unless particularly named.
With respect to their interior polity, our colonies are properly of three sorts. 1. Provincial establishments, the constitutions of which depend on the respective commissions issued by the crown to the governors, and the instructions which usually accompany those commissions; under the authority of which, provincial assemblies are constituted, with the power of making local ordinances, not repugnant to the laws of England. 2. Proprietary governments, granted out by the crown to individuals, in the nature of feudatory principalities, with all the inferior regalities, and subordinate powers of legislation, which formerly belonged to the owners of counties palatine: yet still with these express conditions, that the ends for which the grant was made be substantially pursued, and that nothing be attempted which may derogate from the sovereignty of the mother country. 3. Charter governments, in the nature of civil corporations, with the power of making by-laws for their own interior regulation, not contrary to the laws of England; and with such rights and authorities as are specially given them in their several charters of incorporation. The form of government in most of them is borrowed from that of England. They have a governor named by the king, (or in some proprietary colonies by the proprietor) who is his representative or deputy. They have courts of justice of their own, from whose decisions an appeal lies to the king in council here in England. Their general assemblies which are their house of commons, together with their council of state being their upper house, with the concurrence of the king or his representative the governor, make laws suited to their own emergencies. But it is particularly declared by statute 7 & 8 W. III. c. 22. that all laws, by-laws, usages, and customs, which shall be in practice in any of the plantations, repugnant to any law, made or to be made in this kingdom relative to the said plantations, shall be utterly void and of none effect. And, because several of the colonies had claimed the sole and exclusive right of imposing taxes upon themselves, the statute 6 Geo. III. c. 12. expressly declares, that all his majesty’s colonies and plantations in America have been, are, and of right ought to be, subordinate to and dependent upon the imperial crown and parliament of Great Britain; who have full power and authority to make laws and statutes of sufficient validity to bind the colonies and people of America, subjects of the crown of Great Britain, in all cases whatsoever.
These are the several parts of the dominions of the crown of Great Britain, in which the municipal laws of England are not of force or authority, merely as the municipal laws of England. Most of them have probably copied the spirit of their own law from this original; but then it receives it’s obligation, and authoritative force, from being the law of the country.
As to any foreign dominions which may belong to the person of the king by hereditary descent, by purchase, or other acquisition, as the territory of Hanover, and his majesty’s other property in Germany; as these do not in any wise appertain to the crown of these kingdoms, they are entirely unconnected with the laws of England, and do not communicate with this nation in any respect whatsoever. The English legislature had wisely remarked the inconveniences that had formerly resulted from dominions on the continent of Europe; from the Norman territory which William the conqueror brought with him, and held in conjunction with the English throne; and from Anjou, and it’s appendages, which fell to Henry the second by hereditary descent. They had seen the nation engaged for near four hundred years together in ruinous wars for defence of these foreign dominions; till, happily for this country, they were lost under the reign of Henry the sixth. They observed that, from that time, the maritime interests of England were better understood and more closely pursued: that, in consequence of this attention, the nation, as soon as she had rested from her civil wars, began at this period to flourish all at once; and became much more considerable in Europe, than when her princes were possessed of a larger territory, and her counsels distracted by foreign interests. This experience and these considerations gave birth to a conditional clause in the act[38] of settlement, which vested the crown in his present majesty’s illustrious house, “that in case the crown and imperial dignity of this realm shall hereafter come to any person not being a native of this kingdom of England, this nation shall not be obliged to engage in any war for the defence of any dominions or territories which do not belong to the crown of England, without consent of parliament.”
We come now to consider the kingdom of England in particular, the direct and immediate subject of those laws, concerning which we are to treat in the ensuing commentaries. And this comprehends not only Wales and Berwick, of which enough has been already said, but also part of the sea. The main or high seas are part of the realm of England, for thereon our courts of admiralty have jurisdiction, as will be shewn hereafter; but they are not subject to the common law[39]. This main sea begins at the low-water-mark. But between the high-water-mark, and the low-water-mark, where the sea ebbs and flows, the common law and the admiralty have divisum imperium, an alternate jurisdiction; one upon the water, when it is full sea; the other upon the land, when it is an ebb[40].
The territory of England is liable to two divisions; the one ecclesiastical, the other civil.
1. The ecclesiastical division is, primarily, into two provinces, those of Canterbury and York. A province is the circuit of an arch-bishop’s jurisdiction. Each province contains divers dioceses, or sees of suffragan bishops; whereof Canterbury includes twenty one, and York three: besides the bishoprick of the isle of Man, which was annexed to the province of York by king Henry VIII. Every diocese is divided into archdeaconries, whereof there are sixty in all; each archdeaconry into rural deanries, which are the circuit of the archdeacon’s and rural dean’s jurisdiction, of whom hereafter; and every deanry is divided into parishes[41].
A parish is that circuit of ground in which the souls under the care of one parson or vicar do inhabit. These are computed to be near ten thousand in number[42]. How antient the division of parishes is, may at present be difficult to ascertain; for it seems to be agreed on all hands, that in the early ages of christianity in this island, parishes were unknown, or at least signified the same that a diocese does now. There was then no appropriation of ecclesiastical dues to any particular church; but every man was at liberty to contribute his tithes to whatever priest or church he pleased, provided only that he did it to some: or, if he made no special appointment or appropriation thereof, they were paid into the hands of the bishop, whose duty it was to distribute them among the clergy and for other pious purposes according to his own discretion[43].
Mr Camden[44] says England was divided into parishes by archbishop Honorius about the year 630. Sir Henry Hobart[45] lays it down that parishes were first erected by the council of Lateran, which was held A. D. 1179. Each widely differing from the other, and both of them perhaps from the truth; which will probably be found in the medium between the two extremes. For Mr Selden has clearly shewn[46], that the clergy lived in common without any division of parishes, long after the time mentioned by Camden. And it appears from the Saxon laws, that parishes were in being long before the date of that council of Lateran, to which they are ascribed by Hobart.
We find the distinction of parishes, nay even of mother-churches, so early as in the laws of king Edgar, about the year 970. Before that time the consecration of tithes was in general arbitrary; that is, every man paid his own (as was before observed) to what church or parish he pleased. But this being liable to be attended with either fraud, or at least caprice, in the persons paying; and with either jealousies or mean compliances in such as were competitors for receiving them; it was now ordered by the law of king Edgar[47], that “dentur omnes decimae primariae ecclesiae ad quam parochia pertinet.” However, if any thane, or great lord, had a church within his own demesnes, distinct from the mother-church, in the nature of a private chapel; then, provided such church had a coemitery or consecrated place of burial belonging to it, he might allot one third of his tithes for the maintenance of the officiating minister: but, if it had no coemitery, the thane must himself have maintained his chaplain by some other means; for in such case all his tithes were ordained to be paid to the primariae ecclesiae or mother-church[48].
This proves that the kingdom was then universally divided into parishes; which division happened probably not all at once, but by degrees. For it seems pretty clear and certain that the boundaries of parishes were originally ascertained by those of a manor or manors: since it very seldom happens that a manor extends itself over more parishes than one, though there are often many manors in one parish. The lords, as christianity spread itself, began to build churches upon their own demesnes or wastes, to accommodate their tenants in one or two adjoining lordships; and, in order to have divine service regularly performed therein, obliged all their tenants to appropriate their tithes to the maintenance of the one officiating minister, instead of leaving them at liberty to distribute them among the clergy of the diocese in general: and this tract of land, the tithes whereof were so appropriated, formed a distinct parish. Which will well enough account for the frequent intermixture of parishes one with another. For if a lord had a parcel of land detached from the main of his estate, but not sufficient to form a parish of itself, it was natural for him to endow his newly erected church with the tithes of those disjointed lands; especially if no church was then built in any lordship adjoining to those out-lying parcels.
Thus parishes were gradually formed, and parish churches endowed with the tithes that arose within the circuit assigned. But some lands, either because they were in the hands of irreligious and careless owners, or were situate in forests and desart places, or for other now unsearchable reasons, were never united to any parish, and therefore continue to this day extraparochial; and their tithes are now by immemorial custom payable to the king instead of the bishop, in trust and confidence that he will distribute them, for the general good of the church[49]: yet extraparochial wastes and marsh-lands, when improved and drained, are by the statute 17 Geo. II. c. 37. to be assessed to all parochial rates in the parish next adjoining. And thus much for the ecclesiastical division of this kingdom.
2. The civil division of the territory of England is into counties, of those counties into hundreds, of those hundreds into tithings or towns. Which division, as it now stands, seems to owe it’s original to king Alfred; who, to prevent the rapines and disorders which formerly prevailed in the realm, instituted tithings; so called, from the Saxon, because ten freeholders with their families composed one. These all dwelt together, and were sureties or free pledges to the king for the good behaviour of each other; and, if any offence was committed in their district, they were bound to have the offender forthcoming[50]. And therefore antiently no man was suffered to abide in England above forty days, unless he were enrolled in some tithing or decennary[51]. One of the principal inhabitants of the tithing is annually appointed to preside over the rest, being called the tithing-man, the headborough, (words which speak their own etymology) and in some countries the borsholder, or borough’s-ealder, being supposed the discreetest man in the borough, town, or tithing[52].
Tithings, towns, or vills, are of the same signification in law; and are said to have had, each of them, originally a church and celebration of divine service, sacraments, and burials[53]: though that seems to be rather an ecclesiastical, than a civil distinction. The word town or vill is indeed, by the alteration of times and language, now become a generical term, comprehending under it the several species of cities, boroughs, and common towns. A city is a town incorporated, which is or hath been the see of a bishop; and though the bishoprick be dissolved, as at Westminster, yet still it remaineth a city[54]. A borough is now understood to be a town, either corporate or not, that sendeth burgesses to parliament[55]. Other towns there are, to the number sir Edward Coke says[56] of 8803, which are neither cities nor boroughs; some of which have the privileges of markets, and others not; but both are equally towns in law. To several of these towns there are small appendages belonging, called hamlets; which are taken notice of in the statute of Exeter[57], which makes frequent mention of entire vills, demi-vills, and hamlets. Entire vills sir Henry Spelman[58] conjectures to have consisted of ten freemen, or frank-pledges, demi-vills of five, and hamlets of less than five. These little collections of houses are sometimes under the same administration as the town itself, sometimes governed by separate officers; in which last case they are, to some purposes in law, looked upon as distinct townships. These towns, as was before hinted, contained each originally but one parish, and one tithing; though many of them now, by the encrease of inhabitants, are divided into several parishes and tithings: and, sometimes, where there is but one parish there are two or more vills or tithings.
As ten families of freeholders made up a town or tithing, so ten tithings composed a superior division, called a hundred, as consisting of ten times ten families. The hundred is governed by an high constable or bailiff, and formerly there was regularly held in it the hundred court for the trial of causes, though now fallen into disuse. In some of the more northern counties these hundreds are called wapentakes[59].
The subdivifion of hundreds into tithings seems to be most peculiarly the invention of Alfred: the institution of hundreds themselves he rather introduced than invented. For they seem to have obtained in Denmark[60]: and we find that in France a regulation of this sort was made above two hundred years before; set on foot by Clotharius and Childebert, with a view of obliging each district to answer for the robberies committed in it’s own division. These divisions were, in that country, as well military as civil; and each contained a hundred freemen; who were subject to an officer called the centenarius; a number of which centenarii were themselves subject to a superior officer called the count or comes[61]. And indeed something like this institution of hundreds may be traced back as far as the antient Germans, from whom were derived both the Franks who became masters of Gaul, and the Saxons who settled in England: for both the thing and the name, as a territorial assemblage of persons, from which afterwards the territory itself might probably receive it’s denomination, were well known to that warlike people. “Centeni ex singulis pagis sunt, idque ipsum inter suos vocantur; et quod primo numerus fuit, jam nomen et honor est.[62]”
An indefinite number of these hundreds make up a county or shire. Shire is a Saxon word signifying a division; but a county, comitatus, is plainly derived from comes, the count of the Franks; that is, the earl, or alderman (as the Saxons called him) of the shire, to whom the government of it was intrusted. This he usually exercised by his deputy, still called in Latin vice-comes, and in English the sheriff, shrieve, or shire-reeve, signifying the officer of the shire; upon whom by process of time the civil administration of it is now totally devolved. In some counties there is an intermediate division, between the shire and the hundreds, as lathes in Kent, and rapes in Sussex, each of them containing about three or four hundreds apiece. These had formerly their lathe-reeves and rape-reeves, acting in subordination to the shire-reeve. Where a county is divided into three of these intermediate jurisdictions, they are called trithings[63], which were antiently governed by a trithing-reeve. These trithings still subsist in the large county of York, where by an easy corruption they are denominated ridings; the north, the east, and the west-riding. The number of counties in England and Wales have been different at different times: at present there are forty in England, and twelve in Wales.
Three of these counties, Chester, Durham, and Lancaster, are called counties palatine. The two former are such by prescription, or immemorial custom; or, at least as old as the Norman conquest[64]: the latter was created by king Edward III, in favour of Henry Plantagenet, first earl and then duke of Lancaster, whose heiress John of Gant the king’s son had married; and afterwards confirmed in parliament, to honour John of Gant himself, whom, on the death of his father-in-law, he had also created duke of Lancaster[65]. Counties palatine are so called a palatio; because the owners thereof, the earl of Chesler, the bishop of Durham, and the duke of Lancaster, had in those counties jura regalia, as fully as the king hath in his palace; regalem potestatem in omnibus, as Bracton expresses it[66]. They might pardon treasons, murders, and felonies; they appointed all judges and justices of the peace; all writs and indictments ran in their names, as in other counties in the king’s; and all offences were said to be done against their peace, and not, as in other places, contra pacem domini regis[67]. And indeed by the antient law, in all peculiar jurisdictions, offences were said to be done against his peace in whose court they were tried; in a court leet, contra pacem domini; in the court of a corporation, contra pacem ballivorum; in the seriff’s court or tourn, contra pacem vice-comitis[68]. These palatine privileges were in all probability originally granted to the counties of Chester and Durham, because they bordered upon enemies countries, Wales and Scotland; in order that the owners, being encouraged by so large an authority, might be the more watchful in it’s defence; and that the inhabitants, having justice administered at home, might not be obliged to go out of the county, and leave it open to the enemies incursions. And upon this account also there were formerly two other counties palatine, Pembrokeshire and Hexhamshire, the latter now united with Northumberland: but these were abolished by parliament, the former in 27 Hen. VIII, the latter in 14 Eliz. And in 27 Hen. VIII likewise, the powers before-mentioned of owners of counties palatine were abridged; the reason for their continuance in a manner ceasing: though still all writs are witnessed in their names, and all forfeitures for treason by the common law accrue to them[69].
Of these three, the county of Durham is now the only one remaining in the hands of a subject. For the earldom of Chester, as Camden testifies, was united to the crown by Henry III, and has ever since given title to the king’s eldest son. And the county palatine, or duchy, of Lancaster was the property of Henry of Bolinbroke, the son of John of Gant, at the time when he wrested the crown from king Richard II, and assumed the title of Henry IV. But he was too prudent to suffer this to be united to the crown, lest, if he lost one, he should lose the other also. For, as Plowden[70] and sir Edward Coke[71] observe, “he knew he had the duchy of Lancaster by sure and indesealible title, but that his title to the crown was not so assured: for that after the decease of Richard II the right of the crown was in the heir of Lionel duke of Clarence, second son of Edward III; John of Gant, father to this Henry IV, being but the fourth son.” And therefore he procured an act of parliament, in the first year of his reign, to keep it distinct and separate from the crown, and so it descended to his son, and grandson, Henry V, and Henry VI. Henry VI being attainted in 1 Edw. IV, this duchy was declared in parliament to have become forfeited to the crown[72] and at the same time an act was made to keep it still distinct and separate from other inheritances of the crown. And in 1 Hen. VII another act was made to vest the inheritance thereof in Henry VII and his heirs; and in this state, say sir Edward Coke[73] and Lambard[74], viz. in the natural heirs or posterity of Henry VII, did the right of the duchy remain to their days; a separate and distinct inheritance from that of the crown of England[75].
The isle of Ely is not a county palatine, though sometimes erroneously called so, but only a royal franchise; the bishop having, by grant of king Henry the first, jura regalia within the isle of Ely, and thereby he exercises a jurisdiction over all causes, as well criminal, as civil[76].
There are also counties corporate; which are certain cities and towns, some with more, some with less territory annexed to them; to which out of special grace and favour the kings of England have granted to be counties of themselves, and not to be comprized in any other county; but to be governed by their own sheriffs and other magistrates, so that no officers of the county at large have any power to intermeddle therein. Such are London, York, Bristol, Norwich, Coventry, and many others. And thus much of the countries subject to the laws of England.
↑ Vaugh. 400.
↑ 10 Edw. I.
↑ 12 Edw. I.
↑ 4 Inst. 345.
↑ It may justly be doubted, whether even such an infringement (though a manifest breach of good faith, unless done upon the most pressing necessity) would consequentially dissolve the union: for the bare idea of a state, without a power somewhere vested to alter every part of it’s laws, is the height of political absurdity. The truth seems to be, that in such an incorporate union (which is well distinguished by a very learned prelate from a foederate alliance, where such an infringement would certainly rescind the compact) the two contracting states are totally annihilated, without any power of revival; and a third arises from their conjunction, in which all the rights of sovereignty, and particularly that of legislation, must of necessity reside. (See Warburton’s alliance. 195.) But the imprudent exertion of this right would probably raise a very alarming ferment in the minds of individuals, and therefore it is hinted above that such an attempt might endanger (though not certainly destroy) the union.
↑ Hale. Hist. C. L. 183. 1 Sid. 382. 462. 2 Show. 365.
↑ Cro. Jac. 543. 2 Roll. Abr. 292. Stat. 11 Geo. I. c. 4. 4 Burr. 834.
↑ Stat. Hiberniae. 14 Hen. III.
↑ Pryn. on 4 Inst. 249.
↑ 4 Inst. 358. Edm. Spenser’s state of Ireland. p. 1513. edit. Hughes.
↑ Vaugh. 294. 2 Pryn. Rec. 85. 7 Rep. 23.
↑ 1 Inst. 141.
↑ A. R. 30. 1 Rym. Foed. 422.
↑ A. R. 5.—pro eo quod leges quibus utuntur Hybernici Deo detestabiles existunt, et omni juri dissonant, adeo quod leges censeri non debeant—nobis et consilio nostro satis videtur expediens, eisdem utendas concedere leges Anglicanas. 3 Pryn. Rec. 1218.
↑ Edm. Spenser. ibid.
↑ 20 Hen. VI. c. 8. 2 Ric. III. c. 12.
↑ Yearbook 1 Hen. VII. c. 3. 7 Rep. 22. Calvia’s case.
↑ Irish Stat. 11 Eliz. st. 3. c. 8.
↑ Ibid. 10 Hen. VII. c. 23.
↑ cap. 4. expounded by 3 & 4 Ph. & M. c. 4.
↑ 4 Inst. 353.
↑ Irish Stat. 11 Eliz. st. 3. c. 38.
↑ cap. 22.
↑ 4 Inst. 351.
↑ 12 Rep. 112.
↑ Puff. L. of N. viii. 6. 24.
↑ This was law in the time of Hen. VIII; as appears by the antient book, entituled, diversity of courts, c. bank le roy.
↑ Vaugh. 402.
↑ 4 Inst. 284. 2 And. 116.
↑ Selden. tit. hon. 1. 3.
↑ Camden. Eliz. A. D. 1594.
↑ 1 P. Wms. 329.
↑ The bishoprick of Man, or Sodor, or Sodor and Man, was formerly within the province of Canterbury, but annexed to that of York by statute 33 Hen. VIII. c. 31.
↑ 4 Inst. 286.
↑ Salk. 411. 666.
↑ 2 P. Wms. 75.
↑ 7 Rep. 17. Calvin’s case. Show. Parl. C. 31.
↑ Stat. 12 & 13 Will. III. c. 3.
↑ Co. Litt. 260.
↑ Finch. L. 78.
↑ Co. Litt. 94.
↑ Gibson’s Britan.
↑ Seld. of tith. 9. 4. 2 Inst. 646. Hob. 296.
↑ in his Britannia.
↑ Hob. 296.
↑ of tithes. c. 9.
↑ c. 1.
↑ Ibid. c. 2. See also the laws of king Canute, c. 11. about the year 1030.
↑ 2 lnst. 647. 2 Rep. 44. Cro. Eliz. 512.
↑ Flet. 1. 47. This the laws of king Edward the confessor, c. 20. very justly intitle “summa et maxima securitas, per quam omnes statu firmissimo sustinentur;—quae hoc modo fiebat, quod sub decennali fidejussione debebant esse universi, &c.”
↑ Mirr. c. 1. §. 3.
↑ Finch. L. 8.
↑ 1 Inst. 115.
↑ Co. Litt. 109.
↑ Litt. §. 164.
↑ 1 Inst. 116.
↑ 14 Edw. I.
↑ Gloss. 274.
↑ Seld. in Fortesc. c. 24.
↑ Seld. tit. of hon. 2. 5. 3.
↑ Montesq. Sp. L. 30. 17.
↑ Tacit. de morib. German. 6.
↑ LL. Edw. c. 34.
↑ Seld. tit. hon. 2. 5. 8.
↑ Plowd. 215.
↑ l. 3. c. 8. §. 4.
↑ 4 Inst. 204.
↑ Seld. in Hengham magn. c. 2.
↑ 4 Inst. 205.
↑ 215.
↑ 4 Inst. 205.
↑ 1 Ventr. 155.
↑ 4 Inst. 206.
↑ Archeion. 233.
↑ If this notion of Lambard and Coke be well founded, (which is not altogether certain) it might have become a very curious question at the time of the revolution in 1688, in whom the right of the duchy remained after king James’s abdication, The attainder indeed of the pretended prince of Wales (by statute 13 W. III. c. 3.) has now put the matter out of doubt. And yet, to give that attainder it’s full force in this respect, the object of it must have been supposed legitimate, else he had no interest to forfeit.
↑ 4 Inst. 220.
Commentaries
on the
Laws of England.
Book the first.
Of the Rights of Persons.
Chapter the first.
Of the absolute Rights of Individuals.
The objects of the laws of England are so very numerous and extensive, that, in order to consider them with any tolerable ease and perspicuity, it will be necessary to distribute them methodically, under proper and distinct heads; avoiding as much as possible divisions too large and comprehensive on the one hand, and too trifling and minute on the other; both of which are equally productive of confusion.
Now, as municipal law is a rule of civil conduct, commanding what is right, and prohibiting what is wrong; or, as Cicero[1] and after him our Bracton[2], have expressed it, sanctio justa, jubens honesta et prohibens contraria; it follows, that the primary and principal objects of the law are rights, and wrongs. In the prosecution therefore of these commentaries, I shall follow this very simple and obvious division; and shall in the first place consider the rights that are commanded, and secondly the wrongs that are forbidden by the laws of England.
Rights are however liable to another subdivision; being either, first, those which concern and are annexed to the persons of men, and are then called jura personarum or the rights of persons; or they are, secondly, such as a man may acquire over external objects, or things unconnected with his person, which are stiled jura rerum or the rights of things. Wrongs also are divisible into, first, private wrongs, which, being an infringement merely of particular rights, concern individuals only, and are called civil injuries; and secondly, public wrongs, which, being a breach of general and public rights, affect the whole community, and are called crimes and misdemesnors.
The objects of the laws of England falling into this fourfold division, the present commentaries will therefore consist of the four following parts: 1. The rights of persons; with the means whereby such rights may be either acquired or lost. 2. The rights of things; with the means also of acquiring and losing them. 3. Private wrongs, or civil injuries; with the means of redressing them by law. 4. Public wrongs, or crimes and misdemesnors; with the means of prevention and punishment.
We are now, first, to consider the rights of persons; with the means of acquiring and losing them.
Now the rights of persons that are commanded to be observed by the municipal law are of two sorts; first, such as are due from every citizen, which are usually called civil duties; and, secondly, such as belong to him, which is the more popular acceptation of rights or jura. Both may indeed be comprized in this latter division; for, as all social duties are of a relative nature, at the same time that they are due from one man, or set of men, they must also be due to another. But I apprehend it will be more clear and easy, to consider many of them as duties required from, rather than as rights belonging to, particular persons. Thus, for instance, allegiance is usually, and therefore most easily, considered as the duty of the people, and protection as the duty of the magistrate; and yet they are, reciprocally, the rights as well as duties of each other. Allegiance is the right of the magistrate, and protection the right of the people.
Persons also are divided by the law into either natural persons, or artificial. Natural persons are such as the God of nature formed us; artificial are such as are created and devised by human laws for the purposes of society and government; which are called corporations or bodies politic.
The rights of persons considered in their natural capacities are also of two sorts, absolute, and relative. Absolute, which are such as appertain and belong to particular men, merely as individuals or single persons: relative, which are incident to them as members of society, and standing in various relations to each other. The first, that is, absolute rights, will be the subject of the present chapter.
By the absolute rights of individuals we mean those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature, and which every man is intitled to enjoy whether out of society or in it. But with regard to the absolute duties, which man is bound to perform considered as a mere individual, it is not to be expected that any human municipal laws should at all explain or enforce them. For the end and intent of such laws being only to regulate the behaviour of mankind, as they are members of society, and stand in various relations to each other, they have consequently no business or concern with any but social or relative duties. Let a man therefore be ever so abandoned in his principles, or vitious in his practice, provided he keeps his wickedness to himself, and does not offend against the rules of public decency, he is out of the reach of human laws. But if he makes his vices public, though they be such as seem principally to affect himself, (as drunkenness, or the like) they then become, by the bad example they set, of pernicious effects to society; and therefore it is then the business of human laws to correct them. Here the circumstance of publication is what alters the nature of the case. Public sobriety is a relative duty, and therefore enjoined by our laws; private sobriety is an absolute duty, which, whether it be performed or not, human tribunals can never know; and therefore they can never enforce it by any civil sanction. But, with respect to rights, the case is different. Human laws define and enforce as well those rights which belong to a man considered as an individual, as those which belong to him considered as related to others.
For the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature; but which could not be preserved in peace without that mutual assistance and intercourse, which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to maintain and regulate these absolute rights of individuals. Such rights as are social and relative result from, and are posterior to, the formation of states and societies: so that to maintain and regulate these is clearly a subsequent consideration. And therefore the principal view of human laws is, or ought always to be, to explain, protect, and enforce such rights as are absolute, which in themselves are few and simple; and, then, such rights as are relative, which arising from a variety of connexions, will be far more numerous and more complicated. These will take up a greater space in any code of laws, and hence may appear to be more attended to, though in reality they are not, than the rights of the former kind. Let us therefore proceed to examine how far all laws ought, and how far the laws of England actually do, take notice of these absolute rights, and provide for their lasting security.
The absolute rights of man, considered as a free agent, endowed with discernment to know good from evil, and with power of choosing those measures which appear to him to be most desirable, are usually summed up in one general appellation, and denominated the natural liberty of mankind. This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature; being a right inherent in us by birth, and one of the gifts of God to man at his creation, when he endued him with the faculty of freewill. But every man, when he enters into society, gives up a part of his natural liberty, as the price of so valuable a purchase; and, in consideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws, which the community has thought proper to establish. And this species of legal obedience and conformity is infinitely more desirable, than that wild and savage liberty which is sacrificed to obtain it. For no man, that considers a moment, would wish to retain the absolute and uncontroled power of doing whatever he pleases; the consequence of which is, that every other man would also have the same power; and then there would be no security to individuals in any of the enjoyments of life. Political therefore, or civil, liberty, which is that of a member of society, is no other than natural liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the public[3]. Hence we may collect that the law, which restrains a man from doing mischief to his fellow citizens, though it diminishes the natural, increases the civil liberty of mankind: but every wanton and causeless restraint of the will of the subject, whether practiced by a monarch, a nobility, or a popular assembly, is a degree of tyranny. Nay, that even laws themselves, whether made with or without our consent, if they regulate and constrain our conduct in matters of mere indifference, without any good end in view, are laws destructive of liberty: whereas if any public advantage can arise from observing such precepts, the control of our private inclinations, in one or two particular points, will conduce to preserve our general freedom in others of more importance; by supporting that state, of society, which alone can secure our independence. Thus the statute of king Edward IV[4], which forbad the fine gentlemen of those times (under the degree of a lord) to wear pikes upon their shoes or boots of more than two inches in length, was a law that favoured of oppression; because, however ridiculous the fashion then in use might appear, the restraining it by pecuniary penalties could serve no purpose of common utility. But the statute of king Charles II[5], which prescribes a thing seemingly as indifferent; viz. a dress for the dead, who are all ordered to be buried in woollen; is a law consistent with public liberty, for it encourages the staple trade, on which in great measure depends the universal good of the nation. So that laws, when prudently framed, are by no means subversive but rather introductive of liberty; for (as Mr Locke has well observed[6]) where there is no law, there is no freedom. But then, on the other hand, that constitution or frame of government, that system of laws, is alone calculated to maintain civil liberty, which leaves the subject entire master of his own conduct, except in those points wherein the public good requires some direction or restraint.
The idea and practice of this political or civil liberty flourish in their highest vigour in these kingdoms, where it falls little short of perfection, and can only be lost or destroyed by the folly or demerits of it’s owner: the legislature, and of course the laws of England, being peculiarly adapted to the preservation of this inestimable blessing even in the meanest subject. Very different from the modern constitutions of other states, on the continent of Europe, and from the genius of the imperial law; which in general are calculated to vest an arbitrary and despotic power of controlling the actions of the subject in the prince, or in a few grandees. And this spirit of liberty is so deeply implanted in our constitution, and rooted even in our very soil, that a slave or a negro, the moment he lands in England, falls under the protection of the laws, and so far becomes a freeman[7]; though the master’s right to his service may probably still continue.
The absolute rights of every Englishman (which, taken in a political and extensive sense, are usually called their liberties) as they are founded on nature and reason, so they are coeval with our form of government; though subject at times to fluctuate and change: their establishment (excellent as it is) being still human. At some times we have seen them depressed by overbearing and tyrannical princes; at others so luxuriant as even to tend to anarchy, a worse state than tyranny itself, as any government is better than none at all. But the vigour of our free constitution has always delivered the nation from these embarassments, and, as soon as the convulsions consequent on the struggle have been over, the ballance of our rights and liberties has settled to it’s proper level; and their fundamental articles have been from time to time asserted in parliament, as often as they were thought to be in danger.
First, by the great charter of liberties, which was obtained, sword in hand, from king John; and afterwards, with some alterations, confirmed in parliament by king Henry the third, his son. Which charter contained very few new grants; but, as sir Edward Coke[8] observes, was for the most part declaratory of the principal grounds of the fundamental laws of England. Afterwards by the statute called confirmatio cartarum[9], whereby the great charter is directed to be allowed as the common law; all judgments contrary to it are declared void; copies of it are ordered to be sent to all cathedral churches, and read twice a year to the people; and sentence of excommunication is directed to be as constantly denounced against all those that by word, deed, or counsel act contrary thereto, or in any degree infringe it. Next by a multitude of subsequent corroborating statutes, (sir Edward Coke, I think, reckons thirty two[10],) from the first Edward to Henry the fourth. Then, after a long interval, by the petition of right; which was a parliamentary declaration of the liberties of the people, assented to by king Charles the first in the beginning of his reign. Which was closely followed by the still more ample concessions made by that unhappy prince to his parliament, before the fatal rupture between them; and by the many salutary laws, particularly the habeas corpus act, passed under Charles the second. To these succeeded the bill of rights, or declaration delivered by the lords and commons to the prince and princess of Orange 13 February 1688; and afterwards enacted in parliament, when they became king and queen: which declaration concludes in these remarkable words: “and they do claim, demand, and insist upon all and singular the premises, as their undoubted rights and liberties.” And the act of parliament itself[11] recognizes “all and singular the rights and liberties asserted and claimed in the said declaration to be the true, antient, and indubitable rights of the people of this kingdom.” Lastly, these liberties were again asserted at the commencement of the present century, in the act of settlement[12], whereby the crown was limited to his present majesty’s illustrious house, and some new provisions were added at the same fortunate aera for better securing our religion, laws, and liberties; which the statute declares to be “the birthright of the people of England;” according to the antient doctrine of the common law[13].
Thus much for the declaration of our rights and liberties. The rights themselves, thus defined by these several statutes, consist in a number of private immunities; which will appear, from what has been premised, to be indeed no other, than either that residuum of natural liberty, which is not required by the laws of society to be sacrificed to public convenience; or else those civil privileges, which society hath engaged to provide, in lieu of the natural liberties so given up by individuals. These therefore were formerly, either by inheritance or purchase, the rights of all mankind; but, in most other countries of the world being now more or less debased and destroyed, they at present may be said to remain, in a peculiar and emphatical manner, the rights of the people of England. And these may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty, and the right of private property: because as there is no other known method of compulsion, or of abridging man’s natural free will, but by an infringement or diminution of one or other of these important rights, the preservation of these, inviolate, may justly be said to include the preservation of our civil immunities in their largest and most extensive sense.
I. The right of personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.
1. Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb. For if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb; or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the antient law homicide or manslaughter[14]. But sir Edward Coke doth not look upon this offence in quite so atrocious a light, but merely as a heinous misdemesnor[15].
An infant in ventre sa mere, or in the mother’s womb, is supposed in law to be born for many purposes. It is capable of having a legacy, or a surrender of a copyhold estate made to it. It may have a guardian assigned to it[16]; and it is enabled to have an estate limited to it’s use, and to take afterwards by such limitation, as if it were then actually born[17]. And in this point the civil law agrees with ours[18].
2. A man’s limbs (by which for the present we only understand those members which may be useful to him in fight, and the loss of which only amounts to mayhem by the common law) are also the gift of the wise creator; to enable man to protect himself from external injuries in a state of nature. To these therefore he has a natural inherent right; and they cannot be wantonly destroyed or disabled without a manifest breach of civil liberty.
Both the life and limbs of a man are of such high value, in the estimation of the law of England, that it pardons even homicide if committed se defendendo, or in order to preserve them. For whatever is done by a man, to save either life or member, is looked upon as done upon the highest necessity and compulsion. Therefore if a man through fear of death or mayhem is prevailed upon to execute a deed, or do any other legal aft; these, though accompanied with all other the requisite solemnities, may be afterwards avoided, if forced upon him by a well-grounded apprehension of losing his life, or even his limbs, in case of his noncompliance[19]. And the same is also a sufficient excuse for the commission of many misdemesnors, as will appear in the fourth book. The constraint a man is under in these circumstances is called in law duress, from the Latin durities, of which there are two sorts; duress of imprisonment, where a man actually loses his liberty, of which we shall presently speak; and duress per minas, where the hardship is only threatened and impending, which is that we are now discoursing of. Duress per minas is either for fear of loss of life, or else for fear of mayhem, or loss of limb. And this fear must be upon sufficient reason; “non,” as Bracton expresses it, “suspicio cujuslibet vani et meticulosi hominis, sed talis qui possit cadere in virum constantem; talis enim debet esse metus, qui in se contineat vitae periculum, aut corporis cruciatum[20].” A fear of battery, or being beaten, though never so well grounded, is no duress; neither is the fear of having one’s house burned, or one’s goods taken away and destroyed; because in these cases, should the threat be performed, a man may have satisfaction by recovering equivalent damages[21]: but no suitable atonement can be made for the loss of life, or limb. And the indulgence shewn to a man under this, the principal, sort of duress, the fear of losing his life or limbs, agrees also with that maxim of the civil law; ignoscitur ei qui sanguinem suum qualiter qualiter redemptum voluit[22].
The law not only regards life and member, and protects every man in the enjoyment of them, but also furnishes him with every thing necessary for their support. For there is no man so indigent or wretched, but he may demand a supply sufficient for all the necessities of life from the more opulent part of the community, by means of the several statutes enacted for the relief of the poor, of which in their proper places. A humane provision; yet, though dictated by the principles of society, discountenanced by the Roman laws. For the edicts of the emperor Constantine commanding the public to maintain the children of those who were unable to provide for them, in order to prevent the murder and exposure of infants, an institution founded on the same principle as our foundling hospitals, though comprized in the Theodosian code[23], were rejected in Justinian’s collection.
These rights, of life and member, can only be determined by the death of the person; which is either a civil or natural death. The civil death commences if any man be banished the realm[24] by the process of the common law, or enters into religion; that is, goes into a monastery, and becomes there a monk professed: in which cases he is absolutely dead in law, and his next heir shall have his estate. For, such banished man is entirely cut off from society; and such a monk, upon his profession, renounces solemnly all secular concerns: and besides, as the popish clergy claimed an exemption from the duties of civil life and the commands of the temporal magistrate, the genius of the English law would not suffer those persons to enjoy the benefits of society, who secluded themselves from it, and refused to submit to it’s regulations[25]. A monk was therefore accounted civiliter mortuus, and when he entered into religion might, like other dying men, make his testament and executors; or, if he made none, the ordinary might grant administration to his next of kin, as if he were actually dead intestate. And such executors and administrators had the same power, and might bring the same actions for debts due to the religious, and were liable to the same actions for those due from him, as if he were naturally deceased[26]. Nay, so far has this principle been carried, that when one was bound in a bond to an abbot and his successors, and afterwards made his executors and professed himself a monk of the same abbey, and in process of time was himself made abbot thereof; here the law gave him, in the capacity of abbot, an action of debt against his own executors to recover the money due[27]. In short, a monk or religious was so effectually dead in law, that a lease made even to a third person, during the life (generally) of one who afterwards became a monk, determined by such his entry into religion: for which reason leases, and other conveyances, for life, are usually made to have and to hold for the term of one’s natural life[28]. But, even in the times of popery, the law of England took no cognizance of profession in any foreign country, because the fact could not be tried in our courts[29]; and therefore, since the reformation, the disability is held to be abolished[30].
This natural life being, as was before observed, the immediate donation of the great creator, cannot legally be disposed of or destroyed by any individual, neither by the person himself nor by any other of his fellow creatures, merely upon their own authority. Yet nevertheless it may, by the divine permission, be frequently forfeited for the breach of those laws of society, which are enforced by the sanction of capital punishments; of the nature, restrictions, expedience, and legality of which, we may hereafter more conveniently enquire in the concluding book of these commentaries. At present, I shall only observe, that whenever the constitution of a state vests in any man, or body of men, a power of destroying at pleasure, without the direction of laws, the lives or members of the subject, such constitution is in the highest degree tyrannical: and that whenever any laws direct such destruction for light and trivial causes, such laws are likewise tyrannical, though in an inferior degree; because here the subject is aware of the danger he is exposed to, and may by prudent caution provide against it. The statute law of England does therefore very seldom, and the common law does never, inflict any punishment extending to life or limb, unless upon the highest necessity: and the constitution is an utter stranger to any arbitrary power of killing or maiming the subject without the express warrant of law. “Nullus liber homo, says the great charter[31], aliquo modo destruatur, nisi per legale judicium parium suorum aut per legem terrae.” Which words, “aliquo modo destruatur,” according to sir Edward Coke[32], include a prohibition not only of killing, and maiming, but also of torturing (to which our laws are strangers) and of every oppression by colour of an illegal authority. And it is enacted by the statute 5 Edw. III. c. 9. that no man shall be forejudged of life or limb, contrary to the great charter and the law of the land: and again, by statute 28 Ed. III. c. 3. that no man shall be put to death, without being brought to answer by due process of law.
3. Besides those limbs and members that may be necessary to man, in order to defend himself or annoy his enemy, the rest of his person or body is also entitled, by the same natural right, to security from the corporal insults of menaces, assaults, beating, and wounding; though such insults amount not to destruction of life or member.
4. The preservation of a man’s health from such practices as may prejudice or annoy it, and
5. The security of his reputation or good name from the arts of detraction and slander, are rights to which every man is intitled, by reason and natural justice; since without these it is impossible to have the perfect enjoyment of any other advantage or right. But these three last articles (being of much less importance than those which have gone before, and those which are yet to come) it will suffice to have barely mentioned among the rights of persons; referring the more minute discussion of their several branches, to those parts of our commentaries which treat of the infringement of these rights, under the head of personal wrongs.
II. Next to personal security, the law of England regards, asserts, and preserves the personal liberty of individuals. This personal liberty consists in the power of loco-motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law. Concerning which we may make the same observations as upon the preceding article; that it is a right strictly natural; that the laws of England have never abridged it without sufficient cause; and, that in this kingdom it cannot ever be abridged at the mere discretion of the magistrate, without the explicit permission of the laws. Here again the language of the great charter[33] is, that no freeman shall be taken or imprisoned, but by the lawful judgment of his equals, or by the law of the land. And many subsequent old statutes[34] expressly direct, that no man shall be taken or imprisoned by suggestion or petition to the king, or his council, unless it be by legal indictment, or the process of the common law. By the petition of right, 3 Car. I, it is enacted, that no freeman shall be imprisoned or detained without cause shewn, to which he may make answer according to law. By 16 Car. I. c. 10. if any person be restrained of his liberty by order or decree of any illegal court, or by command of the king’s majesty in person, or by warrant of the council board, or of any of the privy council; he shall, upon demand of his counsel, have a writ of habeas corpus, to bring his body before the court of king’s bench or common pleas; who shall determine whether the cause of his commitment be just, and thereupon do as to justice shall appertain. And by 31 Car. II. c. 2. commonly called the habeas corpus act, the methods of obtaining this writ are so plainly pointed out and enforced, that, so long as this statute remains unimpeached, no subject of England can be long detained in prison, except in those cases in which the law requires and justifies such detainer. And, lest this act should be evaded by demanding unreasonable bail, or sureties for the prisoner’s appearance, it is declared by 1 W. & M. st. 2. c. 2. that excessive bail ought not to be required.
Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper, (as in France it is daily practiced by the crown) there would soon be an end to all other rights and immunities. Some have thought, that unjust attacks, even upon life, or property, at the arbitrary will of the magistrate, are less dangerous to the commonwealth, than such as are made upon the personal liberty of the subject. To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to goal, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government. And yet sometimes, when the state is in real danger, even this may be a necessary measure. But the happiness of our constitution is, that it is not left to the executive power to determine when the danger of the state is so great, as to render this measure expedient. For the parliament only, or legislative power, whenever it sees proper, can authorize the crown, by suspending the habeas corpus act for a short and limited time, to imprison suspected persons without giving any reason for so doing. As the senate of Rome was wont to have recourse to a dictator, a magistrate of absolute authority, when they judged the republic in any imminent danger. The decree of the senate, which usually preceded the nomination of this magistrate, ”dent operam consules, nequid respublica detrimenti capiat,” was called the senatus consultum ultimae necessitatis. In like manner this experiment ought only to be tried in cases of extreme emergency; and in these the nation parts with it’s liberty for a while, in order to preserve it for ever.
The confinement of the person, in any wise, is an imprisonment. So that the keeping a man against his will in a private house, putting him in the stocks, arresting or forcibly detaining him in the street, is an imprisonment[35]. And the law so much discourages unlawful confinement, that if a man is under duress of imprisonment, which we before explained to mean a compulsion by an illegal restraint of liberty, until he seals a bond or the like; he may allege this duress, and avoid the extorted bond. But if a man be lawfully imprisoned, and either to procure his discharge, or on any other fair account, seals a bond or a deed, this is not by duress of imprisonment, and he is not at liberty to avoid it[36]. To make imprisonment lawful, it must either be by process from the courts of judicature, or by warrant from some legal officer having authority to commit to prison; which warrant must be in writing, under the hand and seal of the magistrate, and express the causes of the commitment, in order to be examined into (if necessary) upon a habeas corpus. If there be no cause expressed, the goaler is not bound to detain the prisoner[37]. For the law judges in this respect, saith sir Edward Coke, like Festus the Roman governor; that it is unreasonable to send a prisoner, and not to signify withal the crimes alleged against him.
A natural and regular consequence of this personal liberty, is, that every Englishman may claim a right to abide in his own country so long as he pleases; and not to be driven from it unless by the sentence of the law. The king indeed, by his royal prerogative, may issue out his writ ne exeat regnum, and prohibit any of his subjects from going into foreign parts without licence[38]. This may be necessary for the public service, and safeguard of the commonwealth. But no power on earth, except the authority of parliament, can send any subject: of England out of the land against his will; no not even a criminal. For exile, or transportation, is a punishment unknown to the common law; and, wherever it is now inflicted, it is either by the choice of the criminal himself, to escape a capital punishment, or else by the express direction of some modern act of parliament. To this purpose the great charter[39] declares, that no freeman shall be banished, unless by the judgment of his peers, or by the law of the land. And by the habeas corpus act, 31 Car. II. c. 2. (that second magna carta, and stable bulwark of our liberties) it is enacted, that no subject of this realm, who is an inhabitant of England, Wales, or Berwick, shall be sent prisoner into Scotland, Ireland, Jersey, Guernsey, or places beyond the seas; (where they cannot have the benefit and protection of the common law) but that all such imprisonments shall be illegal; that the person, who shall dare to commit another contrary to this law, shall be disabled from bearing any office, shall incur the penalty of a praemunire, and be incapable of receiving the king’s pardon: and the party suffering shall also have his private action against the person committing, and all his aiders, advisers and abettors, and shall recover treble costs; besides his damages, which no jury shall asses at less than five hundred pounds.
The law is in this respect so benignly and liberally construed for the benefit of the subject, that, though within the realm the king may command the attendance and service of all his liegemen, yet he cannot send any man out of the realm, even upon the public service; excepting sailors and soldiers, the nature of whose employment necessarily implies an exception: he cannot even constitute a man lord deputy or lieutenant of Ireland against his will, nor make him a foreign embassador[40]. For this might in reality be no more than an honorable exile.
III. The third absolute right, inherent in every Englishman, is that of property: which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land. The original of private property is probably founded in nature, as will be more fully explained in the second book of the ensuing commentaries: but certainly the modifications under which we at present find it, the method of conserving it in the present owner, and of translating it from man to man, are entirely derived from society; and are some of those civil advantages, in exchange for which every individual has resigned a part of his natural liberty. The laws of England are therefore, in point of honor and justice, extremely watchful in ascertaining and protecting this right. Upon this principle the great charter[41] has declared that no freeman shall be disseised, or divested, of his freehold, or of his liberties, or free customs, but by the judgment of his peers, or by the law of the land. And by a variety of antient statutes[42] it is enacted, that no man’s lands or goods shall be seised into the king’s hands, against the great charter, and the law of the land; and that no man shall be disinherited, nor put out of his franchises or freehold, unless he be duly brought to answer, and be forejudged by course of law; and if any thing be done to the contrary, it shall be redressed, and holden for none.
So great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community. If a new road, for instance, were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, to do this without consent of the owner of the land. In vain may it be urged, that the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or no. Besides, the public good is in nothing more essentially interested, than in the protection of every individual’s private rights, as modelled by the municipal law. In this and similar cases the legislature alone can, and indeed frequently does, interpose, and compel the individual to acquiesce. But how does it interpose and compel? Not by absolutely stripping the subject of his property in an arbitrary manner; but by giving him a full indemnification and equivalent for the injury thereby sustained. The public is now considered as an individual, treating with an individual for an exchange. All that the legislature does is to oblige the owner to alienate his possessions for a reasonable price; and even this is an exertion of power, which the legislature indulges with caution, and which nothing but the legislature can perform.
Nor is this the only instance in which the law of the land has postponed even public necessity to the sacred and inviolable rights of private property. For no subject of England can be constrained to pay any aids or taxes, even for the defence of the realm or the support of government, but such as are imposed by his own consent, or that of his representatives in parliament. By the statute 25 Edw. I. c. 5 and 6. it is provided, that the king shall not take any aids or tasks, but by the common assent of the realm. And what that common assent is, is more fully explained by 34 Edw. I. st. 4. c. 1. which[43] enacts, that no talliage or aid shall be taken without assent of the arch-bishops, bishops, earls, barons, knights, burgesses, and other freemen of the land: and again by 14 Edw. III. st. 2. c. 1. the prelates, earls, barons, and commons, citizens, burgesses, and merchants shall not be charged to make any aid, if it be not by the common assent of the great men and commons in parliament. And as this fundamental law had been shamesully evaded under many succeeding princes, by compulsive loans, and benevolences extorted without a real and voluntary consent, it was made an article in the petition of right 3 Car. I, that no man shall be compelled to yield any gift, loan, or benevolence, tax, or such like charge, without common consent by act of parliament. And, lastly, by the statute 1 W. & M. st. 2. c. 2. it is declared, that levying money for or to the use of the crown, by pretence of prerogative, without grant of parliament; or for longer time, or in other manner, than the same is or shall be granted, is illegal.
In the three preceding articles we have taken a short view of the principal absolute rights which appertain to every Englishman. But in vain would these rights be declared, ascertained, and protected by the dead letter of the laws, if the constitution had provided no other method to secure their actual enjoyment. It has therefore established certain other auxiliary subordinate rights of the subject, which serve principally as barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property. These are,
1. The constitution, powers, and privileges of parliament, of which I shall treat at large in the ensuing chapter.
2. The limitation of the king’s prerogative, by bounds so certain and notorious, that it is impossible he should exceed them without the consent of the people. Of this also I shall treat in it’s proper place. The former of these keeps the legislative power in due health and vigour, so as to make it improbable that laws should be enacted destructive of general liberty: the latter is a guard upon the executive power, by restraining it from acting either beyond or in contradiction to the laws, that are framed and established by the other.
3. A third subordinate right of every Englishman is that of applying to the courts of justice for redress of injuries. Since the law is in England the supreme arbiter of every man’s life, liberty, and property, courts of justice must at all times be open to the subject, and the law be duly administred therein. The emphatical words of magna carta[44], spoken in the person of the king, who in judgment of law (says sir Edward Coke[45]) is ever present and repeating them in all his courts, are these; nulli vendemus, nulli negabimus, aut differemus rectum vel justitiam: “and therefore every subject,” continues the same learned author, “for injury done to him in bonis, in terris, vel persona, by any other subject, be he ecclesiastical or temporal without any exception, may take his remedy by the course of the law, and have justice and right for the injury done to him, freely without sale, fully without any denial, and speedily without delay.” It were endless to enumerate all the affirmative acts of parliament wherein justice is directed to be done according to the law of the land: and what that law is, every subject knows; or may know if he pleases: for it depends not upon the arbitrary will of any judge; but is permanent, fixed, and unchangeable, unless by authority of parliament. I shall however just mention a few negative statutes, whereby abuses, perversions, or delays of justice, especially by the prerogative, are restrained. It is ordained by magna carta[46], that no freeman shall be outlawed, that is, put out of the protection and benefit of the laws, but according to the law of the land. By 2 Edw. III. c. 8. and 11 Ric. II. c. 10. it is enacted, that no commands or letters shall be sent under the great seal, or the little seal, the signet, or privy seal, in disturbance of the law; or to disturb or delay common right: and, though such commandments should come, the judges shall not cease to do right; which is made a part of their oath by 18 Edw. III. st. 4. And by 1 W. & M. st. 2. c. 2. it is declared, that the pretended power of suspending, or dispensing with laws, or the execution of laws, by regal authority without consent of parliament, is illegal.
Not only the substantial part, or judicial decisions, of the law, but also the formal part, or method of proceeding, cannot be altered but by parliament: for, if once those outworks were demolished, there would be an inlet to all manner of innovation in the body of the law itself. The king, it is true, may erect new courts of justice; but then they must proceed according to the old established forms of the common law. For which reason it is declared in the statute 16 Car. I. c. 10. upon the dissolution of the court of starchamber, that neither his majesty, nor his privy council, have any jurisdiction, power, or authority by English bill, petition, articles, libel (which were the course of proceeding in the starchamber, borrowed from the civil law) or by any other arbitrary way whatsoever, to examine, or draw into question, determine or dispose of the lands or goods of any subjects of this kingdom; but that the same ought to be tried and determined in the ordinary courts of justice, and by course of law.
4. If there should happen any uncommon injury, or infringement of the rights before-mentioned, which the ordinary course of law is too defective to reach, there still remains a fourth subordinate right appertaining to every individual, namely, the right of petitioning the king, or either house of parliament, for the redress of grievances. In Russia we are told[47] that the czar Peter established a law, that no subject might petition the throne, till, he had first petitioned two different ministers of state. In case he obtained justice from, neither, he might then present a third petition to the prince; but upon pain of death, if found to be in the wrong. The consequence of which was, that no one dared to offer such third petition; and grievances seldom falling under the notice of the sovereign, he had little opportunity to redress them. The restrictions, for some there are, which are laid upon petitioning in England, are of a nature extremely different; and while they promote the spirit of peace, they are no check upon that of liberty. Care only must be taken, lest, under the pretence of petitioning, the subject be guilty of any riot or tumult; as happened in the opening of the memorable parliament in 1640: and, to prevent this, it is provided by the statute 13 Car. II. st. 1. c. 5. that no petition to the king, or either house of parliament, for any alterations in church or state, shall be signed by above twenty persons, unless the matter thereof be approved by three justices of the peace or the major part of the grand jury, in the country; and in London by the lord mayor, aldermen, and common council: nor shall any petition be presented by more than two persons at a time. But, under these regulations, it is declared by the statute 1 W. & M. st. 2. c. 2. that the subject hath a right to petition; and that all commitments and prosecutions for such petitioning are illegal.
5. The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. st. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.
In these several articles consist the rights, or, as they are frequently termed, the liberties of Englishmen: liberties more generally talked of, than thoroughly understood; and yet highly necessary to be perfectly known and considered by every man of rank or property, lest his ignorance of the points whereon they are founded should hurry him into faction and licentiousness on the one hand, or a pusillanimous indifference and criminal submission on the other. And we have seen that these rights consist, primarily, in the free enjoyment of personal security, of personal liberty, and of private property. So long as these remain inviolate, the subject is perfectly free; for every species of compulsive tyranny and oppression must act in opposition to one or other of these rights, having no other object upon which it can posssibly be employed. To preserve these from violation, it is necessary that the constitution of parliaments be supported in it’s full vigor; and limits, certainly known, be set to the royal prerogative. And, lastly, to vindicate these rights, when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next to the right of petitioning the king and parliament for redress of grievances; and lastly to the right of having and using arms for self-preservation and defence. And all these rights and liberties it is our birthright to enjoy entire; unless where the laws of our country have laid them under necessary restraints. Restraints in themselves so gentle and moderate, as will appear upon farther enquiry, that no man of sense or probity would wish to see them slackened. For all of us have it in our choice to do every thing that a good man would desire to do; and are restrained from nothing, but what would be pernicious either to ourselves or our fellow citizens. So that this review of our situation may fully justify the observation of a learned French author, who indeed generally both thought and wrote in the spirit of genuine freedom[48]; and who hath not scrupled to profess, even in the very bosom of his native country, that the English is the only nation in the world, where political or civil liberty is the direct end of it’s constitution. Recommending therefore to the student in our laws a farther and more accurate search into this extensive and important title, I shall close my remarks upon it with the expiring wish of the famous father Paul to his country, “Esto perpetua!”
↑ 11 Philipp. 12.
↑ l. 1. c. 3.
↑ Facultas ejus, quod cuique facere libet, nisi quid jure prohibetur. Inst. 1. 3. 1.
↑ 3 Edw. IV. c. 5.
↑ 30 Car. II. st. 1. c. 3.
↑ on Gov. p. 2. §. 57.
↑ Salk. 666. See ch. 14.
↑ 2 Inst. proem.
↑ 25 Edw. I.
↑ 2 Inst. proem.
↑ 1 W. & M. st. 2. c. 2.
↑ 12 & 13 W. III. c. 2.
↑ Plowd. 55.
↑ Si aliquis mulierem praegnantem percusserit, vel ei venenum dederit, per quad fecerit abortivam; si puerperium jam formatum fuerit, et maxime si fuerit animatum, facit homicidium. Bracton. l. 3. c. 21.
↑ 3 Inst. 50.
↑ Stat. 12 Car. II. c. 24.
↑ Stat. 10 & 11 W. III. c. 16.
↑ Qui in utero sunt, in jure civili intelliguntur in rerum natura esse, cum de eorum commodo agatur. Ff. 1. 5. 26.
↑ 2 Inst. 483.
↑ l. 2. c. 5.
↑ 2 Inst. 483.
↑ Ff. 48. 21. 1.
↑ l. 11. t. 27.
↑ Co. Litt. 133.
↑ This was also a rule in the feodal law, l. 2. t. 21. desiit esse miles seculi, qui factus est miles Christi; nec beneficium pertinet ad cum qui non debet gerere officium.
↑ Litt. §. 200.
↑ Co. Litt. 133.
↑ 2 Rep. 48. Co. Litt. 132.
↑ Co. Litt. 132.
↑ 1 Salk. 162.
↑ c. 29.
↑ 2 Inst. 48.
↑ c. 29.
↑ 5 Edw. III. c. 9. 25 Edw. III. st. 5. c. 4. 28 Edw. III. c. 3.
↑ 2 Inst. 589.
↑ 2 Inst. 482.
↑ Ibid. 52, 53.
↑ F. N. B. 85.
↑ c. 29.
↑ 2 Inst. 46.
↑ c. 29.
↑ 5 Edw. III. c. 9. 25 Edw. III. st. 5. c. 4. 28 Edw. III. c. 3.
↑ See the introduction to the great charter, (edit. Oxon.) sub anno 1297; wherein it is shewn that this statute de talliagio non concedendo, supposed to have been made in 34 Edw. I, is in reality nothing more than a sort of translation into Latin of the confirmatio cartarum, 25 Edw. I, which was originally published in the Norman language.
↑ c. 29
↑ 2 Inst. 55.
↑ c. 29.
↑ Montesq. Sp. L. 12. 26.
↑ Montesq. Sp. L. 11. 5.
Chapter the second.
Of the Parliament.
We are next to treat of the rights and duties of persons, as they are members of society, and stand in various relations to each other. These relations are either public or private: and we will first consider those that are public.
The most universal public relation, by which men are connected together, is that of government; namely, as governors and governed, or, in other words, as magistrates and people. Of magistrates also some are supreme, in whom the sovereign power of the state resides; others are subordinate, deriving all their authority from the supreme magistrate, accountable to him for their conduct, and acting in an inferior secondary sphere.
In all tyrannical governments the supreme magistracy, or the right both of making and of enforcing the laws, is vested in one and the same man, or one and the same body of men; and wherever these two powers are united together, there can be no public liberty. The magistrate may enact tyrannical laws, and execute them in a tyrannical manner, since he is possessed, in quality of dispenser of justice, with all the power which he as legislator thinks proper to give himself. But, where the legislative and executive authority are in distinct hands, the former will take care not to entrust the latter with so large a power, as may tend to the subversion of it’s own independence, and therewith of the liberty of the subject. With us therefore in England this supreme power is divided into two branches; the one legislative, to wit, the parliament, consisting of king, lords, and commons; the other executive, consisting of the king alone. It will be the business of this chapter to consider the British parliament; in which the legislative power, and (of course) the supreme and absolute authority of the state, is vested by our constitution.
The original or first institution of parliaments is one of those matters that lie so far hidden in the dark ages of antiquity, that the tracing of it out is a thing equally difficult and uncertain. The word, parliament, itself (or colloquium, as some of our historians translate it) is comparatively of modern date, derived from the French, and signifying the place where they met and conferred together. It was first applied to general assemblies of the states under Louis VII in France, about the middle of the twelfth century[1]. But it is certain that, long before the introduction of the Norman language into England, all matters of importance were debated and settled in the great councils of the realm. A practice, which seems to have been universal among the northern nations, particularly the Germans[2]; and carried by them into all the countries of Europe, which they overran at the dissolution of the Roman empire. Relics of which constitution, under various modifications and changes, are still to be met with in the diets of Poland, Germany, and Sweden, and the assembly of the estates in France[3]: for what is there now called the parliament is only the supreme court of justice, composed of judges and advocates; which neither is in practice, nor is supposed to be in theory, a general council of the realm.
With us in England this general council hath been held immemorially, under the several names of michel-synoth, or great council, michel-gemote or great meeting, and more frequently wittena-gemote or the meeting of wise men. It was also stiled in Latin, commune concilium regni, magnum concilium regis, curia magna, conventus magnatum vel procerum, assisa generalis, and sometimes communitas regni Angliae[4]. We have instances of it’s meeting to order the affairs of the kingdom, to make new laws, and to amend the old, or, as Fleta[5] expresses it, “novis injuriis emersis nova constituere remedia,” so early as the reign of Ina king of the west Saxons, Offa king of the Mercians, and Ethelbert king of Kent, in the several realms of the heptarchy. And, after their union, the mirrour[6] informs us, that king Alfred ordained for a perpetual usage, that these councils should meet twice in the year, or oftener, if need be, to treat of the government of God’s people; how they should keep themselves from sin, should live in quiet, and should receive right. Our succeeding Saxon and Danish monarchs held frequent councils of this sort, as appears from their respective codes of laws; the titles whereof usually speak them to be enacted, either by the king with the advice of his wittena-gemote, or wise men, as, “haec sunt instituta, quae Edgarus rex consilio sapientum suorum instituit;” or to be enacted by those sages with the advice of the king, as, “haec sunt judicia, quae sapientes consilio regis Ethelstani instituerunt;” or lastly, to be enacted by them both together, as, “hae sunt institutiones, quas rex Edmundus et episcopi sui cum sapientibus suis instituerunt.”
There is also no doubt but these great councils were held regularly under the first princes of the Norman line. Glanvil, who wrote in the reign of Henry the second, speaking of the particular amount of an amercement in the sheriff’s court, says, it had never yet been ascertained by the general assise, or assembly, but was left to the custom of particular counties[7]. Here the general assise is spoken of as a meeting well known, and it’s statutes or decisions are put in a manifest contradistinction to customs, or the common law. And in Edward the third’s time an act of parliament, made in the reign of William the conqueror, was pleaded in the case of the abbey of St Edmund’s-bury, and judicially allowed by the court[8].
Hence it indisputably appears, that parliaments, or general councils, are coeval with the kingdom itself. How those parliaments were constituted and composed, is another question, which has been matter of great dispute among our learned antiquarians; and, particularly, whether the commons were summoned at all; or, if summoned, at what period they began to form a distinct assembly. But it is not my intention here to enter into controversies of this sort. I hold it sufficient that it is generally agreed, that in the main the constitution of parliament, as it now stands, was marked out so long ago as the seventeenth year of king John, A. D. 1215, in the great charter granted by that prince; wherein he promises to summon all arch-bishops, bishops, abbots, earls, and greater barons, personally; and all other tenants in chief under the crown, by the sheriff and bailiffs; to meet at a certain place, with forty days notice, to assess aids and scutages when necessary. And this constitution has subsisted in fact at least from the year 1266, 49 Hen. III: there being still extant writs of that date, to summon knights, citizens, and burgesses to parliament. I proceed therefore to enquire wherein consists this constitution of parliament, as it now stands, and has stood for the space of at least five hundred years. And in the prosecution of this enquiry, I shall consider, first, the manner and time of it’s assembling: secondly, it’s constituent parts: thirdly, the laws and customs relating to parliament, considered as one aggregate body: fourthly and fifthly, the laws and customs relating to each house, separately and distinctly taken: sixthly, the methods of proceeding, and of making statutes, in both houses: and lastly, the manner of the parliament’s adjournment, prorogation, and dissolution.
I. As to the manner and time of assembling. The parliament is regularly to be summoned by the king’s writ or letter, issued out of chancery by advice of the privy council, at least forty days before it begins to sit. It is a branch of the royal prerogative, that no parliament can be convened by it’s own authority, or by the authority of any, except the king alone. And this prerogative is founded upon very good reason. For, supposing it had a right to meet spontaneously, without being called together, it is impossible to conceive that all the members, and each of the houses, would agree unanimously upon the proper time and place of meeting: and if half of the members met, and half absented themselves, who shall determine which is really the legislative body, the part assembled, or that which stays away? It is therefore necessary that the parliament should be called together at a determinate time and place: and highly becoming it’s dignity and independence, that it should be called together by none but one of it’s own constituent parts: and, of the three constituent parts, this office can only appertain to the king; as he is a single person, whose will may be uniform and steady; the first person in the nation, being superior to both houses in dignity; and the only branch of the legislature that has a separate existence, and is capable of performing any act at a time when no parliament is in being[9]. Nor is it an exception to this rule that, by some modern statutes, on the demise of a king or queen, if there be then no parliament in being, the last parliament revives, and is to sit again for six months, unless dissolved by the successor: for this revived parliament must have been originally summoned by the crown.
It is true, that by a statute, 16 Car. I. c. 1. it was enacted, that if the king neglected to call a parliament for three years, the peers might assemble and issue out writs for the choosing one; and, in case of neglect of the peers, the constituents might meet and elect one themselves. But this, if ever put in practice, would have been liable to all the inconveniences I have just now stated; and the act itself was esteemed so highly detrimental and injurious to the royal prerogative, that it was repealed by statute 16 Car. II. c. 1. From thence therefore no precedent can be drawn.
It is also true, that the convention-parliament, which restored king Charles the second, met above a month before his return; the lords by their own authority, and the commons in pursuance of writs issued in the name of the keepers of the liberty of England by authority of parliament: and that the said parliament sat till the twenty ninth of December, full seven months after the restoration; and enacted many laws, several of which are still in force. But this was for the necessity of the thing, which supersedes all law; for if they had not so met, it was morally impossible that the kingdom should have been settled in peace. And the first thing done after the king’s return, was to pass an act declaring this to be a good parliament, notwithstanding the defect of the king’s writs[10]. So that, as the royal prerogative was chiefly wounded by their so meeting, and as the king himself, who alone had a right to object, consented to wave the objection, this cannot be drawn into an example in prejudice of the rights of the crown. Besides we should also remember, that it was at that time a great doubt among the lawyers[11], whether even this healing act made it a good parliament; and held by very many in the negative: though it seems to have been too nice a scruple. And yet, out of abundant caution, it was thought necessary to confirm it’s acts in the next parliament, by statute 13 Car. II. c. 7, & c. 14.
It is like wise true, that at the time of the revolution, A. D. 1688, the lords and commons by their own authority, and upon the summons of the prince of Orange, (afterwards king William) met in a convention and therein disposed of the crown and kingdom. But it must be remembered, that this assembling was upon a like principle of necessity as at the restoration; that is, upon a full conviction that king James the second had abdicated the government, and that the throne was thereby vacant: which supposition of the individual members was confirmed by their concurrent resolution, when they actually came together. And in such a case as the palpable vacancy of a throne, it follows ex necessitate rei, that the form of the royal writs must be laid aside, otherwise no parliament can ever meet again. For, let us put another possible case, and suppose, for the sake of argument, that the whole royal line should at any time fail, and become extinct, which would indisputably vacate the throne: in this situation it seems reasonable to presume, that the body of the nation, consisting of lords and commons, would have a right to meet and settle the government; otherwise there must be no government at all. And upon this and no other principle did the convention in 1688 assemble. The vacancy of the throne was precedent to their meeting without any royal summons, not a consequence of it. They did not assemble without writ, and then make the throne vacant; but the throne being previously vacant by the king’s abdication, they assembled without writ, as they must do if they assembled at all. Had the throne been full, their meeting would not have been regular; but, as it was really empty, such meeting became absolutely necessary. And accordingly it is declared by statute 1 W. & M. st. 1. c. 1. that this convention was really the two houses of parliament, notwithstanding the want of writs or other defects of form. So that, notwithstanding these two capital exceptions, which were justifiable only on a principle of necessity, (and each of which, by the way, induced a revolution in the government) the rule laid down is in general certain, that the king, only, can convoke a parliament.
And this by the antient statutes of the realm[12], he is bound to do every year, or oftener, if need be. Not that he is, or ever was, obliged by these statutes to call a new parliament every year; but only to permit a parliament to sit annually for the redress of grievances, and dispatch of business, if need be. These last words are so loose and vague, that such of our monarchs as were enclined to govern without parliaments, neglected the convoking them, sometimes for a very considerable period, under pretence that there was no need of them. But, to remedy this, by the statute 16 Car. II. c. 1. it is enacted, that the sitting and holding of parliaments shall not be intermitted above three years at the most. And by the statute 1 W. & M. st. 2. c. 2. it is declared to be one of the rights of the people, that for redress of all grievances, and for the amending, strengthening, and preserving the laws, parliaments ought to be held frequently. And this indefinite frequency is again reduced to a certainty by statute 6 W. & M. c. 2. which enacts, as the statute of Charles the second had done before, that a new parliament shall be called within three years[13] after the determination of the former.
II. The constituent parts of a parliament are the next objects of our enquiry. And these are, the king’s majesty, sitting there in his royal political capacity, and the three estates of the realm; the lords spiritual, the lords temporal, (who sit, together with the king, in one house) and the commons, who sit by themselves in another. And the king and these three estates, together, form the great corporation or body politic of the kingdom[14], of which the king is said to be caput, principium, et finis. For upon their coming together the king meets them, either in person or by representation; without which there can be no beginning of a parliament[15]; and he also has alone the power of dissolving them.
It is highly necessary for preserving the ballance of the constitution, that the executive power should be a branch, though not the whole, of the legislature. The total union of them, we have seen, would be productive of tyranny; the total disjunction of them for the present, would in the end produce the same effects, by causing that union, against which it seems to provide. The legislature would soon become tyrannical, by making continual encroachments, and gradually assuming to itself the rights of the executive power. Thus the long parliament of Charles the first, while it acted in a constitutional manner, with the royal concurrence, redressed many heavy grievances and established many salutary laws. But when the two houses assumed the power of legislation, in exclusion of the royal authority, they soon after assumed likewise the reins of administration; and, in consequence of these united powers, overturned both church and state, and established a worse oppression than any they pretended to remedy. To hinder therefore any such encroachments, the king is himself a part of the parliament: and, as this is the reason of his being so, very properly therefore the share of legislation, which the constitution has placed in the crown, consists in the power of rejecting, rather than resolving; this being sufficient to answer the end proposed. For we may apply to the royal negative, in this instance, what Cicero observes of the negative of the Roman tribunes, that the crown has not any power of doing wrong, but merely of preventing wrong from being done[16]. The crown cannot begin of itself any alterations in the present established law; but it may approve or disapprove of the alterations suggested and consented to by the two houess. The legislative therefore cannot abridge the executive power of any rights which it now has by law, without it’s own consent; since the law must perpetually stand as it now does, unless all the powers will agree to alter it. And herein indeed consists the true excellence of the English government, that all the parts of it form a mutual check upon each other. In the legislature, the people are a check upon the nobility, and the nobility a check upon the people; by the mutual privilege of rejecting what the other has resolved: while the king is a check upon both, which preserves the executive power from encroachments. And this very executive power is again checked and kept within due bounds by the two houses, through the privilege they have of enquiring into, impeaching, and punishing the conduct (not indeed of the king[17], which would destroy his constitutional independence; but, which is more beneficial to the public) of his evil and pernicious counsellors. Thus every branch of our civil polity supports and is supported, regulates and is regulated, by the rest; for the two houses naturally drawing in two directions of opposite interest, and the prerogative in another still different from them both, they mutually keep each other from exceeding their proper limits; while the whole is prevented from separation, and artificially connected together by the mixed nature of the crown, which is a part of the legislative, and the sole executive magistrate. Like three distinct powers in mechanics, they jointly impel the machine of government in a direction different from what either, acting by itself, would have done; but at the same time in a direction partaking of each, and formed out of all; a direction which constitutes the true line of the liberty and happiness of the community.
Let us now consider these constituent parts of the sovereign power, or parliament, each in a separate view. The king’s majesty will be the subject of the next, and many subsequent chapters, to which we must at present refer.
The next in order are the spiritual lords. These consist of two arch-bishops, and twenty four bishops; and, at the dissolution of monasteries by Henry VIII, consisted likewise of twenty six mitred abbots, and two priors[18]: a very considerable body, and in those times equal in number to the temporal nobility[19]. All these hold, or are supposed to hold, certain antient baronies under the king: for William the conqueror thought proper to change the spiritual tenure, of frankalmoign or free alms, under which the bishops held their lands during the Saxon government, into the feodal or Norman tenure by barony; which subjected their estates to all civil charges and assessments, from which they were before exempt[20]: and, in right of succession to those baronies, which were unalienable from their respective dignities, the bishops and abbots obtained their seats in the house of lords[21]. But though these lords spiritual are in the eye of the law a distinct estate from the lords temporal, and are so distinguished in most of our acts of parliament, yet in practice they are usually blended together under the one name of the lords; they intermix in their votes; and the majority of such intermixture binds both estates. And, from this want of a separate assembly and separate negative of the prelates, some writers have argued[22] very cogently, that the lords spiritual and temporal are now in reality only one estate[23]: which is unquestionably true in every effectual sense, though the antient distinction between them still nominally continues. For if a bill should pass their house, there is no doubt of it’s validity, though every lord spiritual should vote against it; of which Selden[24], and sir Edward Coke[25], give many instances: as, on the other hand, I presume it would be equally good, if the lords temporal present were inferior to the bishops in number, and everyone of those temporal lords gave his vote to reject the bill; though this sir Edward Coke seems to doubt of[26].
The lords temporal consist of all the peers of the realm (the bishops not being in strictness held to be such, but merely lords of parliament[27]) by whatever title of nobility distinguished; dukes, marquisses, earls, viscounts, or barons; of which dignities we shall speak more hereafter. Some of these sit by descent, as do all antient peers; some by creation, as do all new-made ones; others, since the union with Scotland, by election, which is the case of the sixteen peers, who represent the body of the Scots nobility. Their number is indefinite, and may be encreased at will by the power of the crown: and once, in the reign of queen Anne, there was an instance of creating no less than twelve together; in contemplation of which, in the reign of king George the first, a bill passed the house of lords, and was countenanced by the then ministry, for limiting the number of the peerage. This was thought by some to promise a great acquisition to the constitution, by restraining the prerogative from gaining the ascendant in that august assembly, by pouring in at pleasure an unlimited number of new created lords. But the bill was ill-relished and miscarried in the house of commons, whose leading members were then desirous to keep the avenues to the other house as open and easy as possible.
The distinction of rank and honours is necessary in every well governed state: in order to reward such as are eminent for their services to the public, in a manner the most desirable to individuals, and yet without burthen to the community; exciting thereby an ambitious yet laudable order, and generous emulation in others. And emulation, or virtuous ambition, is a spring of action which, however dangerous or invidious in a mere republic or under a despotic sway, will certainly be attended with good effects under a free monarchy; where, without destroying it’s existence, it’s excesses may be continually restrained by that superior power, from which all honour is derived. Such a spirit, when nationally diffused, gives life and vigour to the community; it sets all the wheels of government in motion, which under a wise regulator, may be directed to any beneficial purpose; and thereby every individual may be made subservient to the public good, while he principally means to promote his own particular views. A body of nobility is also more peculiarly necessary in our mixed and compounded constitution, in order to support the rights of both the crown and the people, by forming a barrier to withstand the encroachments of both. It creates and preserves that gradual scale of dignity, which proceeds from the peasant to the prince; rising like a pyramid from a broad foundation, and diminishing to a point as it rises. It is this ascending and contracting proportion that adds stability to any government; for when the departure is sudden from one extreme to another, we may pronounce that state to be precarious. The nobility therefore are the pillars, which are reared from among the people, more immediately to support the throne; and if that falls, they must also be buried under it’s ruins. Accordingly, when in the last century the commons had determined to extirpate monarchy, they also voted the house of lords to be useless and dangerous. And since titles of nobility are thus expedient in the state, it is also expedient that their owners should form an independent and separate branch of the legislature. If they were confounded with the mass of the people, and like them had only a vote in electing representatives, their privileges would soon be borne down and overwhelmed by the popular torrent, which would effectually level all distinctions. It is therefore highly necessary that the body of nobles should have a distinct assembly, distinct deliberations, and distinct powers from the commons.
The commons consist of all such men of any property in the kingdom, as have not seats in the house of lords; every one of which has a voice in parliament, either personally, or by his representatives. In a free state, every man, who is supposed a free agent, ought to be, in some measure, his own governor; and therefore a branch at least of the legislative power should reside in the whole body of the people. And this power, when the territories of the state are small and it’s citizens easily known, should be exercised by the people in their aggregate or collective capacity, as was wisely ordained in the petty republics of Greece, and the first rudiments of the Roman state. But this will be highly inconvenient, when the public territory is extended to any considerable degree, and the number of citizens is encreased. Thus when, after the social war, all the burghers of Italy were admitted free citizens of Rome, and each had a vote in the public assemblies, it became impossible to distinguish the spurious from the real voter, and from that time all elections and popular deliberations grew tumultuous and disorderly; which paved the way for Marius and Sylla, Pompey and Caesar, to trample on the liberties of their country, and at last to dissolve the commonwealth. In so large a state as ours it is therefore very wisely contrived, that the people should do that by their representatives, which it is impracticable to perform in person: representatives, chosen by a number of minute and separate districts, wherein all the voters are, or easily may be, distinguished. The counties are therefore represented by knights, elected by the proprietors of lands; the cities and boroughs are represented by citizens and burgesses, chosen by the mercantile part or supposed trading interest of the nation; much in the same manner as the burghers in the diet of Sweden are chosen by the corporate towns, Stockholm sending four, as London does with us, other cities two, and some only one[28]. The number of English representatives is 513, and of Scots 45; in all 558. And every member, though chosen by one particular district, when elected and returned serves for the whole realm. For the end of his coming thither is not particular, but general; not barely to advantage his constituents, but the common wealth; to advise his majesty (as appears from the writ of summons[29]) “de communi consilio super negotiis quibusdam arduis et urgentibus, regem, statum et defensionem regni Angliae et ecclesiae Anglicanae concernentibus.” And therefore he is not bound, like a deputy in the united provinces, to consult with, or take the advice, of his constituents upon any particular point, unless he himself thinks it proper or prudent so to do.
These are the constituent parts of a parliament, the king, the lords spiritual and temporal, and the commons. Parts, of which each is so necessary, that the consent of all three is required to make any new law that shall bind the subject. Whatever is enacted for law by one, or by two only, of the three is no statute; and to it no regard is due, unless in matters relating to their own privileges. For though, in the times of madness and anarchy, the commons once passed a vote[30], “that whatever is enacted or declared for law by the commons in parliament assembled hath the force of law; and all the people of this nation are concluded thereby, although the consent and concurrence of the king or house of peers be not had thereto;” yet, when the constitution was restored in all it’s forms, it was particularly enacted by statute 13 Car. II. c. 1. that if any person shall maliciously or advisedly affirm, that both or either of the houses of parliament have any legislative authority without the king, such person shall incur all the penalties of a praemunire.
III. We are next to examine the laws and customs relating to parliament, thus united together and considered as one aggregate body.
The power and jurisdiction of parliament, says sir Edward Coke[31] is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds. And of this high court he adds, it may be truly said “si antiquitatem spectes, est vetustissima; si dignitatem, est honoratissima; si juridictionem, est capacissima.” It hath sovereign and uncontrolable authority in making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical, or temporal, civil, military, maritime, or criminal: this being the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms. All mischiefs and grievances, operations and remedies, that transcend the ordinary course of the laws, are within the reach of this extraordinary tribunal. It can regulate or new model the succession to the crown; as was done in the reign of Henry VIII and William III. It can alter the established religion of the land; as was done in a variety of instances, in the reigns of king Henry VIII and his three children. It can change and create afresh even the constitution of the kingdom and of parliaments themselves; as was done by the act of union, and the several statutes for triennial and septennial elections. It can, in short, do every thing that is not naturally impossible; and therefore some have not scrupled to call it’s power, by a figure rather too bold, the omnipotence of parliament. True it is, that what the parliament doth, no authority upon earth can undo. So that it is a matter most essential to the liberties of this kingdom, that such members be delegated to this important trust, as are most eminent for their probity, their fortitude, and their knowlege; for it was a known apothegm of the great lord treasurer Burleigh, “that England could never be ruined but by a parliament:” and, as sir Matthew Hale observes[32], this being the highest and greatest court, over which none other can have jurisdiction in the kingdom, if by any means a misgovernment should any way fall upon it, the subjects of this kingdom are left without all manner of remedy. To the same purpose the president Montesquieu, though I trust too hastily, presages[33]; that as Rome, Sparta, and Carthage have lost their liberty and perished, so the constitution of England will in time lose it’s liberty, will perish: it will perish, whenever the legislative power shall become more corrupt than the executive.
It must be owned that Mr Locke[34], and other theoretical writers, have held, that “there remains still inherent in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them: for when such trust is abused, it is thereby forfeited, and devolves to those who gave it.” But however just this conclusion may be in theory, we cannot adopt it, nor argue from it, under any dispensation of government at present actually existing. For this devolution of power, to the people at large, includes in it a dissolution of the whole form of government established by that people, reduces all the members to their original state of equality, and by annihilating the sovereign power repeals all positive laws whatsoever before enacted. No human laws will therefore suppose a case, which at once must destroy all law, and compel men to build afresh upon a new foundation; nor will they make provision for so desperate an event, as must render all legal provisions ineffectual. So long therefore as the English constitution lasts, we may venture to affirm, that the power of parliament is absolute and without control.
In order to prevent the mischiefs that might arise, by placing this extensive authority in hands that are either incapable, or else improper, to manage it, it is provided that no one shall sit or vote in either house of parliament, unless he be twenty one years of age. This is expressly declared by statute 7 & 8 W. III. c. 25. with regard to the house of commons; though a minor was incapacitated before from sitting in either house, by the law and custom of parliament[35]. To prevent crude innovations in religion and government, it is enacted by statute 30 Car. II. st. 2. and I Geo. I. c. 13. that no member shall vote or sit in either house, till he hath in the presence of the house taken the oaths of allegiance, supremacy, and abjuration, and subscribed and repeated the declaration against transubstantiation, and invocation of saints, and the sacrifice of the mass. To prevent dangers that may arise to the kingdom from foreign attachments, connexions, or dependencies, it is enacted by the 12 & 13 W. III. c. 2. that no alien, born out of the dominions of the crown of Great Britain, even though he be naturalized, shall be capable of being a member of either house of parliament.
Farther: as every court of justice hath laws and customs for it’s direction, some the civil and canon, some the common law, others their own peculiar laws and customs, so the high court of parliament hath also it’s own peculiar law, called the lex et consuetudo parliamenti; a law which sir Edward Coke[36] observes, is “ab omnibus quaerenda, a multis ignorata, a paucis cognita.” It will not therefore be expected that we should enter into the examination of this law, with any degree of minuteness; since, as the same learned author assures us[37], it is much better to be learned out of the rolls of parliament, and other records, and by precedents, and continual experience, than can be expressed by any one man. It will be sufficient to observe, that the whole of the law and custom of parliament has it’s original from this one maxim; “that whatever matter arises concerning either house of parliament, ought to be examined, discussed, and adjudged in that house to which it relates, and not elsewhere.” Hence, for instance, the lords will not suffer the commons to interfere in settling the election of a peer of Scotland; the commons will not allow the lords to judge of the election of a burgess; nor will either house permit the courts of law to examine the merits of either case. But the maxims upon which they proceed, together with their method of proceeding, rest entirely in the breast of the parliament itself; and are not defined and ascertained by any particular stated laws.
The privileges of parliament are likewise very large and indefinite; which has occasioned an observation, that the principal privilege of parliament consisted in this, that it’s privileges were not certainly known to any but the parliament itself. And therefore when in 31 Hen. VI the house of lords propounded a question to the judges touching the privilege of parliament, the chief justice, in the name of his brethren, declared, “that they ought not to make answer to that question; for it hath not been used aforetime that the justices should in any wise determine the privileges of the high court of parliament; for it is so high and mighty in his nature, that it may make law; and that which is law, it may make no law; and the determination and knowlege of that privilege belongs to the lords of parliament, and not to the justices[38].” Privilege of parliament was principally established, in order to protect it’s members not only from being molested by their fellow-subjects, but also more especially from being oppressed by the power of the crown. If therefore all the privileges of parliament were once to be set down and ascertained, and no privilege to be allowed but what was so defined and determined, it were easy for the executive power to devise some new case, not within the line of privilege, and under pretence thereof to harass any refractory member and violate the freedom of parliament. The dignity and independence of the two houses are therefore in great measure preserved by keeping their privileges indefinite. Some however of the more notorious privileges of the members of either house are, privilege of speech, of person, of their domestics, and of their lands and goods. As to the first, privilege of speech, it is declared by the statute 1 W. & M. st. 2. c. 2. as one of the liberties of the people, “that the freedom of speech, and debates, and proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament.” And this freedom of speech is particularly demanded of the king in person, by the speaker of the house of commons, at the opening of every new parliament. So likewise are the other privileges, of person, servants, lands and goods; which are immunities as antient as Edward the confessor, in whose laws[39] we find this precept, “ad synodos venientibus, sive summoniti sint, sive per se quid agendum habuerint, sit summa pax:” and so too, in the old Gothic constitutions, “extenditur haec pax et securitas ad quatuordecim dies, convocato regni senatu[40].” This includes not only privilege from illegal violence, but also from legal arrests, and seisures by process from the courts of law. To assault by violence a member of either house, or his menial servants, is a high contempt of parliament, and there punished with the utmost severity. It has likewise peculiar penalties annexed to it in the courts of law, by the statutes 5 Hen. IV. c. 6. and 11 Hen. VI. c. 11. Neither can any member of either house be arrested and taken into custody, nor served with any process of the courts of law; nor can his menial servants be arrested; nor can any entry be made on his lands; nor can his goods be distrained or seised; without a breach of the privilege of parliament.
These privileges however, which derogate from the common law, being only indulged to prevent the member’s being diverted from the public business, endure no longer than the session of parliament, save only as to the freedom of his person: which in a peer is for ever sacred and inviolable; and in a commoner for forty days after every prorogation, and forty days before the next appointed meeting[41]; which is now in effect as long as the parliament subsists, it seldom being prorogued for more than four-score days at a time. As to all other privileges which obstruct the ordinary course of justice, they cease by the statutes 12 W. III. c. 3. and 11 Geo. II. c. 24. immediately after the dissolution or prorogation of the parliament, or adjournment of the houses for above a fortnight; and during these recesses a peer, or member of the house of commons, may be sued like an ordinary subject, and in consequence of such suits may be dispossessed of his lands and goods. In these cases the king has also his prerogative: he may sue for his debts, though not arrest the person of a member, during the sitting of parliament; and by statute 2 & 3 Ann. c. 18. a member may be sued during the sitting of parliament for any misdemesnor or breach of trust in a public office. Likewise, for the benefit of commerce, it is provided by statute 4 Geo. III c. 33, that any trader, having privilege of parliament, may be served with legal process for any just debt, (to the amount of 100l.) and unless he makes satisfaction within two months, it shall be deemed an act of bankruptcy; and that commissions of bankrupt may be issued against such privileged traders, in like manner as against any other.
The only way by which courts of justice could antiently take cognizance of privilege of parliament was by writ of privilege, in the nature of supersedeas, to deliver the party out of custody when arrested in a civil suit[42]. For when a letter was written by the speaker to the judges, to stay proceedings against a privileged person, they rejected it as contrary to their oath of office[43]. But since the statute 12 W. III. c. 3. which enacts, that no privileged person shall be subject to arrest or imprisonment, it hath been held that such arrest is irregular ab initio, and that the party may be discharged upon motion[44]. It is to be observed, that there is no precedent of any such writ of privilege, but only in civil suits; and that the statute of 1 Jac. I. c. 13. and that of king William (which remedy some inconveniences arising from privilege of parliament) speak only of civil actions. And therefore the claim of privilege hath been usually guarded with an exception as to the case of indictable crimes[45]; or, as it hath been frequently expressed, of treason, felony, and breach (or surety) of the peace[46]. Whereby it seems to have been understood that no privilege was allowable to the members, their families, or servants in any crime whatsoever; for all crimes are treated by the law as being contra pacem domini regis. And instances have not been wanting, wherein privileged persons have been convicted of misdemesnors, and committed, or prosecuted to outlawry, even in the middle of a session[47]; which proceeding has afterwards received the sanction and approbation of parliament[48]. To which may be added, that, a few years ago, the case of writing and publishing seditious libels was resolved by both houses[49] not to be intitled to privilege; and that the reasons, upon which that case proceeded[50], extended equally to every indictable offence. So that the chief, if not the only, privilege of parliament, in such cases, seems to be the right of receiving immediate information of the imprisonment or detention of any member, with the reason for which he is detained: a practice that is daily used upon the slightest military accusations, preparatory to a trial by a court martial[51]; and which is recognized by the several temporary statutes for suspending the habeas corpus act[52], whereby it is provided, that no member of either house shall be detained, till the matter of which he stands suspected, be first communicated to the house of which he is a member, and the consent of the said house obtained for his commitment or detaining. But yet the usage has uniformly been, ever since the revolution, that the communication has been subsequent to the arrest.
These are the general heads of the laws and customs relating to parliament, considered as one aggregate body. We will next proceed to
IV. The laws and customs relating to the house of lords in particular. These, if we exclude their judicial capacity, which will be more properly treated of in the third and fourth books of these commentaries, will take up but little of our time.
One very antient privilege is that declared by the charter of the forest[53], confirmed in parliament 9 Hen. III; viz. that every lord spiritual or temporal summoned to parliament, and passing through the king’s forests, may, both in going and returning, kill one or two of the king’s deer without warrant; in view of the forester, if he be present; or on blowing a horn if he be absent, that he may not seem to take the king’s venison by stealth.
In the next place they have a right to be attended, and constantly are, by the judges of the court of king’s bench and commonpleas, and such of the barons of the exchequer as are of the degree of the coif, or have been made serjeants at law; as likewise by the masters of the court of chancery; for their advice in point of law, and for the greater dignity of their proceedings. The secretaries of state, the attorney and solicitor general, and the rest of the king’s learned counsel being serjeants, were also used to attend the house of peers, and have to this day their regular writs of summons issued out at the beginning of every parliament[54]: but, as many of them have of late years been members of the house of commons, their attendance is fallen into disuse.
Another privilege is, that every peer, by licence obtained from the king, may make another lord of parliament his proxy, to vote for him in his absence[55]. A privilege which a member of the other house can by no means have, as he is himself but a proxy for a multitude of other people[56].
Each peer has also a right, by leave of the house, when a vote passes contrary to his sentiments, to enter his dissent on the journals of the house, with the reasons for such dissent; which is usually stiled his protest.
All bills likewise, that may in their consequences any way affect the rights of the peerage, are by the custom of parliament to have their first rise and beginning in the house of peers, and to suffer no changes or amendments in the house of commons.
There is also one statute peculiarly relative to the house of lords; 6 Ann. c. 23. which regulates the election of the sixteen representative peers of North Britain, in consequence of the twenty second and twenty third articles of the union: and for that purpose prescribes the oaths, &c, to be taken by the electors; directs the mode of balloting; prohibits the peers electing from being attended in an unusual manner; and expressly provides, that no other matter shall be treated of in that assembly, save only the election, on pain of incurring a praemunire.
V. The peculiar laws and customs of the house of commons relate principally to the raising of taxes, and the elections of members to serve in parliament.
First, with regard to taxes: it is the antient indisputable privilege and right of the house of commons, that all grants of subsidies or parliamentary aids do begin in their house, and are first bestowed by them[57]; although their grants are not effectual to all intents and purposes, until they have the assent of the other two branches of the legislature. The general reason, given for this exclusive privilege of the house of commons, is, that the supplies are raised upon the body of the people, and therefore it is proper that they alone should have the right of taxing themselves. This reason would be unanswerable, if the commons taxed none but themselves: but it is notorious, that a very large share of property is in the possession of the house of lords; that this property is equally taxable, and taxed, as the property of the commons; and therefore the commons not being the sole persons taxed, this cannot be the reason of their having the sole right of raising and modelling the supply. The true reason, arising from the spirit of our constitution, seems to be this. The lords being a permanent hereditary body, created at pleasure by the king, are supposed more liable to be influenced by the crown, and when once influenced to continue so, than the commons, who are a temporary elective body, freely nominated by the people. It would therefore be extremely dangerous, to give them any power of framing new taxes for the subject: it is sufficient, that they have a power of rejecting, if they think the commons too lavish or improvident in their grants. But so reasonably jealous are the commons of this valuable privilege, that herein they will not suffer the other house to exert any power but that of rejecting; they will not permit the least alteration or amendment to be made by the lords to the mode of taxing the people by a money bill; under which appellation are included all bills, by which money is directed to be raised upon the subject, for any purpose or in any shape whatsoever; either for the exigencies of government, and collected from the kingdom in general, as the land tax; or for private benefit, and collected in any particular district, as by turnpikes, parish rates, and the like. Yet sir Matthew Hale[58] mentions one case, founded on the practice of parliament in the reign of Henry VI[59], wherein he thinks the lords may alter a money bill; and that is, if the commons grant a tax, as that of tonnage and poundage, for four years; and the lords alter it to a less time, as for two years; here, he says, the bill need not be sent back to the commons for their concurrence, but may receive the royal assent without farther ceremony; for the alteration of the lords is consistent with the grant of the commons. But such an experiment will hardly be repeated by the lords, under the present improved idea of the privilege of the house of commons: and, in any case where a money bill is remanded to the commons, all amendments in the mode of taxation are sure to be rejected.
Next, with regard to the elections of knights, citizens, and burgesses; we may observe, that herein consists the exercise of the democratical part of our constitution: for in a democracy there can be no exercise of sovereignty but by suffrage, which is the declaration of the people’s will. In all democracies therefore it is of the utmost importance to regulate by whom, and in what manner, the suffrages are to be given. And the Athenians were so justly jealous of this prerogative, that a stranger, who interfered in the assemblies of the people, was punished by their laws with death: because such a man was esteemed guilty of high treason, by usurping those rights of sovereignty, to which he had no title. In England, where the people do not debate in a collective body but by representation, the exercise of this sovereignty consists in the choice of representatives. The laws have therefore very strictly guarded against usurpation or abuse of this power, by many salutary provisions; which may be reduced to these three points, 1. The qualifications of the electors. 2. The qualifications of the elected. 3. The proceedings at elections.
- As to the qualifications of the electors. The true reason of requiring any qualification, with regard to property, in voters, is to exclude such persons as are in so mean a situation that they are esteemed to have no will of their own. If these persons had votes, they would be tempted to dispose of them under some undue influence or other. This would give a great, an artful, or a wealthy man, a larger share in elections than is consistent with general liberty. If it were probable that every man would give his vote freely, and without influence of any kind, then, upon the true theory and genuine principles of liberty, every member of the community, however poor, should have a vote in electing those delegates, to whose charge is committed the disposal of his property, his liberty, and his life. But, since that can hardly be expected in persons of indigent fortunes, or such as are under the immediate dominion of others, all popular states have been obliged to establish certain qualifications; whereby some, who are suspected to have no will of their own, are excluded from voting, in order to set other individuals, whose wills may be supposed independent, more thoroughly upon a level with each other.
And this constitution of suffrages is framed upon a wiser principle, with us, than either of the methods of voting, by centuries or by tribes, among the Romans. In the method by centuries, instituted by Servius Tullius, it was principally property, and not numbers, that turned the scale: in the method by tribes, gradually introduced by the tribunes of the people, numbers only were regarded and property entirely overlooked. Hence the laws passed by the former method had usually too great a tendency to aggrandize the patricians or rich nobles; and those by the latter had too much of a levelling principle. Our constitution steers between the two extremes. Only such are entirely excluded, as can have no will of their own: there is hardly a free agent to be found, but what is entitled to a vote in some place or other in the kingdom. Nor is comparative wealth, or property, entirely disregarded in elections; for though the richest man has only one vote at one place, yet, if his property be at all diffused, he has probably a right to vote at more places than one, and therefore has many representatives. This is the spirit of our constitution: not that I assert it is in fact quite so perfect as I have here endeavoured to describe it; for, if any alteration might be wished or suggested in the present frame of parliaments, it should be in favour of a more complete representation of the people.
But to return to our qualifications; and first those of electors for knights of the shire. 1. By statute 8 Hen. VI. c. 7. and 10 Hen. VI. c. 2. the knights of the shires shall be chosen of people dwelling in the same counties; whereof every man shall have freehold to the value of forty shillings by the year within the county; which by subsequent statutes is to be clear of all charges and deductions, except parliamentary and parochial taxes. The knights of shires are the representatives of the landholders, or landed interest, of the kingdom: their electors must therefore have estates in lands or tenements, within the county represented: these estates must be freehold, that is, for term of life at least; because beneficial leases for long terms of years were not in use at the making of these statutes, and copyholders were then little better than villeins, absolutely dependent upon their lord: this freehold must be of forty shillings annual value; because that sum would then, with proper industry, furnish all the necessaries of life, and render the freeholder, if he pleased, an independent man. For bishop Fleetwood, in his chronicon preciosum written about sixty years since, has fully proved forty shillings in the reign of Henry VI to have been equal to twelve pounds per annum in the reign of queen Anne; and, as the value of money is very considerably lowered since the bishop wrote, I think we may fairly conclude, from this and other circumstances, that what was equivalent to twelve pounds in his days is equivalent to twenty at present. The other less important qualifications of the electors for counties in England and Wales may be collected from the statutes cited in the margin[60]; which direct, 2. That no person under twenty one years of age shall be capable of voting for any member. This extends to all sorts of members, as well for boroughs as counties; as does also the next, viz. 3. That no person convicted of perjury, or subornation of perjury, shall be capable of voting in any election. 4. That no person shall vote in right of any freehold, granted to him fraudulently to qualify him to vote. Fraudulent grants are such as contain an agreement to reconvey, or to defeat the estate granted; which agreements are made void, and the estate is absolutely vested in the person to whom it is so granted. And, to guard the better against such frauds, it is farther provided, 5. That every voter shall have been in the actual possession, or receipt of the profits, of his freehold to his own use for twelve calendar months before; except it came to him by descent, marriage, marriage settlement, will, or promotion to a benefice or office. 6. That no person shall vote in respect of an annuity or rentcharge, unless registered with the clerk of the peace twelve calendar months before. 7. That in mortgaged or trust-estates, the person in possession, under the above-mentioned restrictions, shall have the vote. 8. That only one person shall be admitted to vote for any one house or tenement, to prevent the splitting of freeholds. 9. That no estate shall qualify a voter, unless the estate has been assessed to some land tax aid, at least twelve months before the election. 10. That no tenant by copy of court roll shall be permitted to vote as a freeholder. Thus much for the electors in counties.
As for the electors of citizens and burgesses, these are supposed to be the mercantile part or trading interest of this kingdom. But as trade is of a fluctuating nature, and seldom long fixed in a place, it was formerly left to the crown to summon, pro re nata, the most flourishing towns to send representatives to parliament. So that as towns encreased in trade, and grew populous, they were admitted to a share in the legislature. But the misfortune is, that the deserted boroughs continued to be summoned, as well as those to whom their trade and inhabitants were transferred; except a few which petitioned to be eased of the expense, then usual, of maintaining their members: four shillings a day being allowed for a knight of the shire, and two shillings for a citizen or burgess; which was the rate of wages established in the reign of Edward III[61]. Hence the members for boroughs now bear above a quadruple proportion to those for counties, and the number of parliament men is increased since Fortescue’s time, in the reign of Henry the sixth, from 300 to upwards of 500, exclusive of those for Scotland. The universities were in general not empowered to send burgesses to parliament; though once, in 28 Edw. I. when a parliament was summoned to consider of the king’s right to Scotland, there were issued writs, which required the university of Oxford to send up four or five, and that of Cambridge two or three, of their most discreet and learned lawyers for that purpose[62]. But it was king James the first, who indulged them with the permanent privilege to send constantly two of their own body; to serve for those students who, though useful members of the community, were neither concerned in the landed nor the trading interest; and to protect in the legislature the rights of the republic of letters. The right of election in boroughs is various, depending intirely on the several charters, customs, and constitutions of the respective places, which has occasioned infinite disputes; though now by statute 2 Geo. II. c. 24. the right of voting for the future shall be allowed according to the last determination of the house of commons concerning it. And by statute 3 Geo. III. c. 15. no freeman of any city or borough (other than such as claim by birth, marriage, or servitude) shall be intitled to vote therein, unless he hath been admitted to his freedom twelve calendar months before.
2. Our second point is the qualification of persons to be elected members of the house of commons. This depends upon the law and custom of parliaments[63], and the statutes referred to in the margin[64]. And from these it appears, 1. That they must not be aliens born, or minors. 2. That they must not be any of the twelve judges, because they sit in the lords’ house; nor of the clergy, for they sit in the convocation; nor persons attainted of treason or felony, for they are unfit to sit any where[65]. 3. That sheriffs of counties, and mayors and bailiffs of boroughs, are not eligible in their respective jurisdictions, as being returning officers[66]; but that sheriffs of one county are eligible to be knights of another[67]. 4. That, in strictness, all members ought to be inhabitants of the places for which they are chosen: but this is intirely disregarded. 5. That no persons concerned in the management of any duties or taxes created since 1692, except the commissioners of the treasury, nor any of the officers following, (viz. commissioners of prizes, transports, sick and wounded, wine licences, navy, and victualling; secretaries or receivers of prizes; comptrollers of the army accounts; agents for regiments; governors of plantations and their deputies; officers of Minorca or Gibraltar; officers of the excise and customs; clerks or deputies in the several offices of the treasury, exchequer, navy, victualling, admiralty, pay of the army or navy, secretaries of state, salt, stamps, appeals, wine licences, hackney coaches, hawkers, and pedlars) nor any persons that hold any new office under the crown created since 1705, are capable of being elected members. 6. That no person having a pension under the crown during pleasure, or for any term of years, is capable of being elected. 7. That if any member accepts an office under the crown, except an officer in the army or navy accepting a new commission, his seat is void; but such member is capable of being re-elected. 8. That all knights of the shire shall be actual knights, or such notable esquires and gentlemen, as have estates sufficient to be knights, and by no means of the degree of yeomen. This is reduced to a still greater certainty, by ordaining, 9. That every knight of a shire shall have a clear estate of freehold or copyhold to the value of six hundred pounds per annum, and every citizen and burgess to the value of three hundred pounds; except the eldest sons of peers, and of persons qualified to be knights of shires, and except the members for the two universities: which somewhat ballances the ascendant which the boroughs have gained over the counties, by obliging the trading interest to make choice of landed men: and of this qualification the member must make oath, and give in the particulars in writing, at the time of his taking his seat. But, subject to these restrictions and disqualifications, every subject of the realm is eligible of common right. It was therefore an unconstitutional prohibition, which was inserted in the king’s writs, for the parliament holden at Coventry, 6 Hen. IV, that no apprentice or other man of the law should be elected a knight of the shire therein[68]: in return for which, our law books and historians[69] have branded this parliament with the name of parliamentum indoctum, or the lack-learning parliament; and sir Edward Coke observes with some spleen[70], that there was never a good law made thereat.
3. The third point regarding elections, is the method of proceeding therein. This is also regulated by the law of parliament, and the several statutes referred to in the margin[71]; all which I shall endeavour to blend together, and extract out of them a summary account of the method of proceeding to elections.
As soon as the parliament is summoned, the lord chancellor (or if a vacancy happens during parliament, the speaker, by order of the house) sends his warrant to the clerk of the crown in chancery; who thereupon issues out writs to the sheriff of every county, for the election of all the members to serve for that county, and every city and borough therein. Within three days after the receipt of this writ, the sheriff is to send his precept, under his seal, to the proper returning officers of the cities and boroughs, commanding them to elect their members; and the said returning officers are to proceed to election within eight days from the receipt of the precept, giving four days notice of the same; and to return the persons chosen, together with the precept, to the sheriff.
But elections of knights of the hire must be proceeded to by the sheriffs themselves in person, at the next county court that shall happen after the delivery of the writ. The county court is a court held every month or oftener by the sheriff, intended to try little causes not exceeding the value of forty shillings, in what part of the county he pleases to appoint for that purpose: but for the election of knights of the shire, it must be held at the most usual place. If the county court falls upon the day of delivering the writ, or within six days after, the sheriff may adjourn the court and election to some other convenient time, not longer than sixteen days, nor shorter than ten; but he cannot alter the place, without the consent of all the candidates; and in all such cases ten days public notice must be given of the time and place of the election.
And, as it is essential to the very being of parliament that elections should be absolutely free, therefore all undue influences upon the electors are illegal, and strongly prohibited. For Mr Locke[72] ranks it among those breaches of trust in the executive magistrate, which according to his notions amount to a dissolution of the government, “if he employs the force, treasure, and offices of the society to corrupt the representatives, or openly to preingage the electors, and prescribe what manner of persons shall be chosen. For thus to regulate candidates and electors, and new model the ways of election, what is it, says he, but to cut up the government by the roots, and poison the very fountain of public security?” As soon therefore as the time and place of election, either in counties or boroughs, are fixed, all soldiers quartered in the place are to remove, at least one day before the election, to the distance of two miles or more; and not return till one day after the poll is ended. Riots likewise have been frequently determined to make an election void. By vote also of the house of commons, to whom alone belongs the power of determining contested elections, no lord of parliament, or lord lieutenant of a county, hath any right to interfere in the election of commoners; and, by statute, the lord warden of the cinque ports shall not recommend any members there. If any officer of the excise, customs, stamps, or certain other branches of the revenue, presumes to intermeddle in elections, by persuading any voter or dissuading him, he forfeits 100l, and is disabled to hold any office.
Thus are the electors of one branch of the legislature secured from any undue influence from either of the other two, and from all external violence and compulsion. But the greatest danger is that in which themselves co-operate, by the infamous practice of bribery and corruption. To prevent which it is enacted that no candidate shall, after the date (usually called the teste) of the writs, or after the vacancy, give any money or entertainment to his electors, or promise to give any, either to particular persons, or to the place in general, in order to his being elected; on pain of being incapable to serve for that place in parliament. And if any money, gift, office, employment, or reward be given or promised to be given to any voter, at any time, in order to influence him to give or withhold his vote, as well he that takes as he that offers such bribe forfeits 500l, and is for ever disabled from voting and holding any office in any corporation; unless, before conviction, he will discover some other offender of the same kind, and then he is indemnified for his own offence[73]. The first instance that occurs, of election bribery, was so early as 13 Eliz. when one Thomas Longe (being a simple man and of small capacity to serve in parliament) acknowleged that he had given the returning officer and others of the borough for which he was chosen four pounds to be returned member, and was for that premium elected. But for this offence the borough was amerced, the member was removed, and the officer fined and imprisoned[74]. But, as this practice hath since taken much deeper and more universal root, it hath occasioned the making of these wholesome statutes; to complete the efficacy of which, there is nothing wanting but resolution and integrity to put them in strict execution.
Undue influence being thus (I wish the depravity of mankind would permit me to say, effectually) guarded against, the election is to be proceeded to on the day appointed; the sheriff or other returning officer first taking an oath against bribery, and for the due execution of his office. The candidates likewise, if required, must swear to their qualification; and the electors in counties to theirs; and the electors both in counties and boroughs are also compellable to take the oath of abjuration and that against bribery and corruption. And it might not be amiss, if the members elected were bound to take the latter oath, as well as the former; which in all probability would be much more effectual, than administring it only to the electors.
The election being closed, the returning officer in boroughs returns his precept to the sheriff, with the persons elected by the majority: and the sheriff returns the whole, together with the writ for the county and the knights elected thereupon, to the clerk of the crown in chancery; before the day of meeting, if it be a new parliament, or within fourteen days after the election, if it be an occasional vacancy; and this under penalty of 500l. If the sheriff does not return such knights only as are duly elected, he forfeits, by the old statutes of Henry VI, 100l; and the returning officer in boroughs for a like false return 40l; and they are besides liable to an action, in which double damages shall be recovered, by the later statutes of king William: and any person bribing the returning officer shall also forfeit 300l. But the members returned by him are the sitting members, until the house of commons, upon petition, shall adjudge the return to be false and illegal. And this abstract of the proceedings at elections of knights, citizens, and burgesses, concludes our enquiries into the laws and customs more peculiarly relative to the house of commons.
VI. I proceed now, sixthly, to the method of making laws; which is much the same in both houses: and I shall touch it very briefly, beginning in the house of commons. But first I must premise, that for dispatch of business each house of parliament has it’s speaker. The speaker of the house of lords, whose office it is to preside there, and manage the formality of business, is the lord chancellor, or keeper of the king’s great seal, or any other appointed by the king’s commission: and, if none be so appointed, the house of lords (it is said) may elect. The speaker of the house of commons is chosen by the house; but must be approved by the king. And herein the usage of the two houses differs, that the speaker of the house of commons cannot give his opinion or argue any question in the house; but the speaker of the house of lords, if a lord of parliament, may. In each house the act of the majority binds the whole; and this majority is declared by votes openly and publicly given: not as at Venice, and many other senatorial assemblies, privately or by ballot. This latter method may be serviceable, to prevent intrigues and unconstitutional combinations: but is impossible to be practiced with us; at least in the house of commons, where every member’s conduct is subject to the future censure of his constituents, and therefore should be openly submitted to their inspection.
To bring a bill into the house, if the relief sought by it is of a private nature, it is first necessary to prefer a petition; which must be presented by a member, and usually lets forth the grievance desired to be remedied. This petition (when founded on facts that may be in their nature disputed) is referred to a committee of members, who examine the matter alleged, and accordingly report it to the house; and then (or, otherwise, upon the mere petition) leave is given to bring in the bill. In public matters the bill is brought in upon motion made to the house, without any petition at all. Formerly, all bills were drawn in the form of petitions, which were entered upon the parliament rolls, with the king’s answer thereunto subjoined; not in any settled form of words, but as the circumstances of the case required[75]: and at the end of each parliament the judges drew them into the form of a statute, which was entered on the statute-rolls. In the reign of Henry V, to prevent mistakes and abuses, the statutes were drawn up by the judges before the end of the parliament; and, in the reign of Henry VI, bills in the form of acts, according to the modern custom, were first introduced.
The persons, directed to bring in the bill, present it in a competent time to the house, drawn out on paper, with a multitude of blanks, or void spaces, where any thing occurs that is dubious, or necessary to be settled by the parliament itself; (such, especially, as the precise date of times, the nature and quantity of penalties, or of any sums of money to be raised) being indeed only the sceleton of the bill. In the house of lords, if the bill begins there, it is (when of a private nature) referred to two of the judges, to examine and report the state of the facts alleged, to see that all necessary parties consent, and to settle all points of technical propriety. This is read a first time, and at a convenient distance a second time; and after each reading the speaker opens to the house the substance of the bill, and puts the question, whether it shall proceed any farther. The introduction of the bill may be originally opposed, as the bill itself may at either of the readings; and, if the opposition succeeds, the bill must be dropt for that sessions; as it must also, if opposed with success in any of the subsequent stages.
After the second reading it is committed, that is, referred to a committee; which is either selected by the house in matters of small importance, or else, upon a bill of consequence, the house resolves itself into a committee of the whole house. A committee of the whole house is composed of every member; and, to form it, the speaker quits the chair, (another member being appointed chairman) and may sit and debate as a private member. In these committees the bill is debated clause by clause, amendments made, the blanks filled up, and sometimes the bill entirely new modelled. After it has gone through the committee, the chairman reports it to the house with such amendments as the committee have made; and then the house reconsider the whole bill again, and the question is repeatedly put upon every clause and amendment. When the house have agreed or disagreed to the amendments of the committee, and sometimes added new amendments of their own, the bill is then ordered to be engrossed, or written in a strong gross hand, on one or more long rolls of parchment sewed together. When this is finished, it is read a third time, and amendments are sometimes then made to it; and, if a new clause be added, it is done by tacking a separate piece of parchment on the bill, which is called a ryder. The speaker then again opens the contents; and, holding it up in his hands, puts the question, whether the bill shall pass. If this is agreed to, the title to it is then settled; which used to be a general one for all the acts passed in the session, till in the fifth year of Henry VIII distinct titles were introduced for each chapter[76]. After this, one of the members is directed to carry it to the lords, and desire their concurrence; who, attended by several more, carries it to the bar of the house of peers, and there delivers it to their speaker, who comes down from his woolsack to receive it.
It there passes through the same forms as in the other house, (except engrossing, which is already done) and, if rejected, no more notice is taken, but it passes sub silentio, to prevent unbecoming altercations. But if it is agreed to, the lords send a message by two masters in chancery (or sometimes two of the judges) that they have agreed to the same: and the bill remains with the lords, if they have made no amendment to it. But if any amendments are made, such amendments are sent down with the bill to receive the concurrence of the commons. If the commons disagree to the amendments, a conference usually follows between members deputed from each house; who for the most part settle and adjust the difference: but, if both houses remain inflexible, the bill is dropped. If the commons agree to the amendments, the bill is sent back to the lords by one of the members, with a message to acquaint them therewith. The same forms are observed, mutatis mutandis, when the bill begins in the house of lords. But, when an act of grace or pardon is passed, it is first signed by his majesty, and then read once only in each of the houses, without any new engrossing or amendment[77]. And when both houses have done with any bill, it always is deposited in the house of peers, to wait the royal assent; except in the case of a money-bill, which after receiving the concurrence of the lords is sent back to the house of commons[78].
The royal assent may be given two ways: 1. In person; when the king comes to the house of peers, in his crown and royal robes, and sending for the commons to the bar, the titles of all the bills that have passed both houses are read; and the king’s answer is declared by the clerk of the parliament in Norman-French: a badge, it must be owned, (now the only one remaining) of conquest; and which one could wish to see fall into total oblivion; unless it be reserved as a solemn memento to remind us that our liberties are mortal, having once been destroyed by a foreign force. If the king consents to a public bill, the clerk usually declares, “le roy le veut, the king wills it so to be;” if to a private bill, “soit fait come il est desirè, be it as it is desired.” If the king refuses his assent, it is in the gentle language of “le roy s’avisera, the king will advise upon it.” When a money-bill is passed, it is carried up and presented to the king by the speaker of the house of commons[79]; and the royal assent is thus expressed, “le roy remercie ses loyal subjects, accepte lour benevolence, et aussi le veut, the king thanks his loyal subjects, accepts their benevolence, and wills it so to be.” In case of an act of grace, which originally proceeds from the crown and has the royal assent in the first stage of it, the clerk of the parliament thus pronounces the gratitude of the subject; “les prelats, seigneurs, et commons, en ce present parliament assemblees, au nom de touts vous autres subjects, remercient tres humblement votre majeste, et prient a Dieu vous donner en sante bone vie et longue; the prelates, lords, and commons, in this present parliament assembled, in the name of all your other subjects, most humbly thank your majesty, and pray to God to grant you in health and wealth long to live[80].” 2. By the statute 33 Hen. VIII. c. 21. the king may give his assent by letters patent under his great seal, signed with his hand, and notified, in his absence, to both houses assembled together in the high house. And, when the bill has received the royal assent in either of these ways, it is then, and not before, a statute or act of parliament.
This statute or act is placed among the records of the kingdom; there needing no formal promulgation to give it the force of a law, as was necessary by the civil law with regard to the emperors edicts: because every man in England is, in judgment of law, party to the making of an act of parliament, being present thereat by his representatives. However, a copy thereof is usually printed at the king’s press, for the information of the whole land. And formerly, before the invention of printing, it was used to be published by the sheriff of every county; the king’s writ being sent to him at the end of every session, together with a transcript of all the acts made at that session, commanding him “ut statuta illa, et omnes articulos in eisdem contentos, in singulis locis ubi expedire viderit, publice proclamari, et firmiter teneri et observari faciat.” And the usage was to proclaim them at his county court, and there to keep them, that whoever would might read or take copies thereof; which custom continued till the reign of Henry the seventh[81].
An act of parliament, thus made, is the exercise of the highest authority that this kingdom acknowleges upon earth. It hath power to bind every subject in the land, and the dominions thereunto belonging; nay, even the king himself, if particularly named therein. And it cannot be altered, amended, dispensed with, suspended, or repealed, but in the same forms and by the same authority of parliament: for it is a maxim in law, that it requires the same strength to dissolve, as to create an obligation. It is true it was formerly held, that the king might in many cases dispense with penal statutes[82]: but now by statute 1 W. & M. st. 2. c. 2. it is declared, that the suspending or dispensing with laws by regal authority, without consent of parliament, is illegal.
VII. There remains only, in the seventh and last place, to add a word or two concerning the manner in which parliaments may be adjourned, prorogued, or dissolved.
An adjournment is no more than a continuance of the session from one day to another, as the word itself signifies: and this is done by the authority of each house separately every day; and sometimes for a fortnight or a month together, as at Christmas or Easter, or upon other particular occasions. But the adjournment of one house is no adjournment of the other[83]. It hath also been usual, when his majesty hath signified his pleasure that both or either of the houses should adjourn themselves to a certain day, to obey the king’s pleasure so signified, and to adjourn accordingly[84]. Otherwise, besides the indecorum of a refusal, a prorogation would assuredly follow; which would often be very inconvenient to both public and private business. For prorogation puts an end to the session; and then such bills, as are only begun and not perfected, must be resumed de novo (if at all) in a subsequent session: whereas, after an adjournment, all things continue in the same state as at the time of the adjournment made, and may be proceeded on without any fresh commencement.
A prorogation is the continuance of the parliament from one session to another, as an adjournment is a continuation of the session from day to day. This is done by the royal authority, expressed either by the lord chancellor in his majesty’s presence, or by commission from the crown, or frequently by proclamation. Both houses are necessarily prorogued at the same time; it not being a prorogation of the house of lords, or commons, but of the parliament. The session is never understood to be at an end, until a prorogation: though, unless some act be passed or some judgment given in parliament, it is in truth no session at all[85]. And formerly the usage was, for the king to give the royal assent to all such bills as he approved, at the end of every session, and then to prorogue the parliament; though sometimes only for a day or two[86]: after which all business then depending in the houses was to be begun again. Which custom obtained so strongly, that it once became a question[87], whether giving the royal assent to a single bill did not of course put an end to the session. And, though it was then resolved in the negative, yet the notion was so deeply rooted, that the statute 1 Car. I. c. 7. was passed to declare, that the king’s assent to that and some other acts should not put an end to the session; and, even so late as the restoration of Charles II, we find a proviso tacked to the first bill then enacted[88], that his majesty’s assent thereto should not determine the session of parliament. But it now seems to be allowed, that a prorogation must be expressly made, in order to determine the session. And, if at the time of an actual rebellion, or imminent danger of invasion, the parliament shall be separated by adjournment or prorogation, the king is empowered[89] to call them together by proclamation, with fourteen days notice of the time appointed for their reassembling.
A dissolution is the civil death of the parliament; and this may be effected three ways: 1. By the king’s will, expressed either in person or by representation. For, as the king has the sole right of convening the parliament, so also it is a branch of the royal prerogative, that he may (whenever he pleases) prorogue the parliament for a time, or put a final period to it’s existence. If nothing had a right to prorogue or dissolve a parliament but itself, it might happen to become perpetual. And this would be extremely dangerous, if at any time it should attempt to encroach upon the executive power: as was fatally experienced by the unfortunate king Charles the first; who, having unadvisedly passed an act to continue the parliament then in being till such time as it should please to dissolve itself, at last fell a sacrifice to that inordinate power, which he himself had consented to give them. It is therefore extremely necessary that the crown should be empowered to regulate the duration of these assemblies, under the limitations which the English constitution has prescribed: so that, on the one hand, they may frequently and regularly come together, for the dispatch of business and redress of grievances; and may not, on the other, even with the consent of the crown, be continued to an inconvenient or unconstitutional length.
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A parliament may be dissolved by the demise of the crown. This dissolution formerly happened immediately upon the death of the reigning sovereign, for he being considered in law as the head of the parliament, (caput, principium, et finis) that failing, the whole body was held to be extinct. But, the calling a new parliament immediately on the inauguration of the successor being found inconvenient, and dangers being apprehended from having no parliament in being in case of a disputed succession, it was enacted by the statutes 7 & 8 W. III. c. 15. and 6 Ann. c. 7. that the parliament in being shall continue for six months after the death of any king or queen, unless sooner prorogued or dissolved by the successor: that, if the parliament be, at the time of the king’s death, separated by adjournment or prorogation, it shall notwithstanding assemble immediately: and that, if no parliament is then in being, the members of the last parliament shall assemble, and be again a parliament.
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Lastly, a parliament may be dissolved or expire by length of time. For if either the legislative body were perpetual; or might last for the life of the prince who convened them as formerly; and were so to be supplied, by occasionally filling the vacancies with new representatives; in these cases, if it were once corrupted, the evil would be past all remedy: but when different bodies succeed each other, if the people see cause to disapprove of the present, they may rectify it’s faults in the next. A legislative assembly also, which is sure to be separated again, (whereby it’s members will themselves become private men, and subject to the full extent of the laws which they have enacted for others) will think themselves bound, in interest as well as duty, to make only such laws as are good. The utmost extent of time that the same parliament was allowed to sit, by the statute 6 W. & M. c. 2. was three years; after the expiration of which, reckoning from the return of the first summons, the parliament was to have no longer continuance. But by the statute 1 Geo. I. st. 2. c. 38. (in order, professedly, to prevent the great and continued expenses of frequent elections, and the violent heats and animosities consequent thereupon, and for the peace and security of the government then just recovering from the late rebellion) this term was prolonged to seven years; and what alone is an instance of the vast authority of parliament, the very same house, that was chosen for three years, enacted it’s own continuance for seven. So that, as our constitution now stands, the parliament must expire, or die a natural death, at the end of every seventh year; if not sooner dissolved by the royal prerogative.
↑ Mod. Un. Hist. xxiii. 307. The first mention of it in our statute law is in the preamble to the statute of Westm. 1. 3 Edw. I. A. D. 1272.
↑ De minoribus rebus principes consultant, de majoribus omnes. Tac. de mor. Germ. c. 11.
↑ These were assembled for the last time, A. D. 1561. See Whitelocke of Parl. c. 72.
↑ Glanvil. l. 13. c. 32. l. 9. c. 10.—Pref. 9 Rep.—2. Inst. 526.
↑ l. 2. c. 2.
↑ c. 1. §. 3.
↑ Quanta esse debeat per nullam assisam generalem determinatum est, sed pro consuetudine singulorum comitatuum debetur. l. 9. c. 10.
↑ Year book, 21 Edw. III. 60.
↑ By motives somewhat similar to these the republic of Venice was actuated, when towards the end of the seventh century it abolished the tribunes of the people, who were annually chosen by the several districts of the Venetian territory, and constituted a doge in their stead; in whom the executive power of the state at present resides. For which their historians have assigned these, as the principal, reasons. 1. The propriety of having the executive power a part of the legislative, or senate; to which the former annual magistrates were not admitted, 2. The necessity of having a single person to convoke the great council when separated. (Mod. Un. Hist. xxvii. 15.)
↑ Stat. 12 Car. II. c. 1.
↑ 1 Sid. 1.
↑ 4 Edw. III. c. 14. 36 Edw. III. c. 10.
↑ This is the same period, that is allowed in Sweden for intermitting their general diets, or parliamentary assemblies. Mod. Un. Hist. xxxiii. 15.
↑ 4 Inst. 1, 2. Stat. 1 Eliz. c. 3. Hale of Parl. 1.
↑ 4 Inst. 6.
↑ Sulla—tribunis plebis sua lege injuriae faciendae potestatem ademit, auxilii ferendi reliquit. de LL. 3. 9.
↑ Stat. 12 Car. II. c. 30.
↑ Seld. tit. hon. 2. 5. 27.
↑ Co. Litt. 97.
↑ Gilb. Hist. Exch. 55. Spelm. W. I. 291.
↑ Glanv. 7. 1. Co. Litt. 97. Seld. tit. hon. 2. 5. 19.
↑ Whitelocke on Parliam. c. 72. Warburt. Alliance. b. 3. c. 3.
↑ Dyer. 60.
↑ Baronage, p. 1. c. 6. The act of uniformity, 1 Eliz. c. 2. was passed with the dissent of all the bishops; (Gibs. codex. 268.) and therefore the stile of lords spiritual is omitted throughout the whole.
↑ 2 Inst. 585, 6, 7. See Keilw. 184; where it is holden by the judges, 7 Hen. VIII, that the king may hold a parliament without any spiritual lords. This was also exemplified in fact in the two first parliaments of Charles II; wherein no bishops were summoned, till after the repeal of the stat. 16 Car. I. c. 27. by stat. 13 Car. II. st. 1. c. 2.
↑ 4 Inst. 25.
↑ Staunford. P. C. 153.
↑ Mod. Un. Hist. xxxiii. 18.
↑ 4 lnst. 14.
↑ 4 Jan. 1648.
↑ 4 lnst. 36.
↑ of parliaments. 49.
↑ Sp. L. 11. 6.
↑ on Gov. p. 2. §. 149. 227.
↑ 4 Inst. 47.
↑ 1 Inst. 11.
↑ 4 Inst. 50.
↑ Seld. baronage. part. 1. c. 4.
↑ cap. 3.
↑ Stiernh. de jure Goth. l. 3. c. 3.
↑ 2 Lev. 72.
↑ Dyer. 59. 4 Pryn. Brev. Parl. 757.
↑ Latch. 48. Noy. 83.
↑ Stra. 989.
↑ Com. Journ. 17 Aug. 1641.
↑ 4 Inst. 25. Com. Journ. 20 May. 1675.
↑ Mich. 16 Edw. IV. in Scacch.—Lord Raym. 1461.
↑ Com. Journ. 16 May. 1726.
↑ Com. Journ. 24 Nov. Lords Journ. 29 Nov. 1763.
↑ Lords Protest. ibid.
↑ Com. Journ. 20 Apr. 1762.
↑ particularly 17 Geo. II. c. 6.
↑ c. 11.
↑ Stat. 31 Hen. VIII. c. 10. Smith’s commonw. b. 2. c. 3. Moor. 551. 4 Inst. 4. Hale of parl. 140.
↑ Seld. baronage. p. 1, c. 1.
↑ 4 Inst. 12.
↑ 4 Inst. 29.
↑ on parliaments. 65, 66.
↑ Year book, 33 Hen. VI. 17. But see the answer to this case by sir Heneage Finch, Com. Journ. 22 Apr. 1671.
↑ 7 & 8 W. III. c. 25. 10 Ann. c. 23. 2 Geo. II. c. 21. 18 Geo. II. c. 18. 31 Geo. II. c. 14. 3 Geo. III. c. 24.
↑ 4 Inst. 16.
↑ Prynne parl. writs. I. 345.
↑ 4 Inst. 47.
↑ 1 Hen. V. c. 1. 23 Hen. VI. c. 15. 1 W. & M. st. 2. c. 2. 5 & 6 W. & M. c. 7. 11 & 12 W. III. c. 2. 12 & 13 W. III. c. 10. 6 Ann. c. 7. 9 Ann. c. 5. 1 Geo. I. c. 56. 15 Geo. II. c. 22. 33 Geo. II. c. 20.
↑ 4 Inst. 47.
↑ Hale of parl. 114.
↑ 4 Inst. 48. Whitelocke of parl. ch. 99, 100, 101.
↑ Pryn. on 4 Inst. 13.
↑ Walsingh. A. D. 1405.
↑ 4 Inst. 48.
↑ 7 Hen. IV. c. 15. 8 Hen. VI. c. 7. 23 Hen. VI. c. 15. 1 W. & M. st. 1. c. 2. 2 W. & M. st. 1. c. 7. 5 & 6 W. & M. c. 20. 7 W. III. c. 4. 7 & 8 W. III. c. 7. and c. 25. 10 & 11 W. III. c. 7. 12 & 13 W. III. c. 10. 6 Ann. c. 23. 9 Ann. c. 5. 10 Ann. c. 19. c. 33. 2 Geo. II. c. 24. 8 Geo. II. c. 30. 18 Geo. II. c. 18. 19 Geo. II. c. 28.
↑ on Gov. p. 2. §. 222.
↑ In like manner the Julian law de ambitu inflicted fines and infamy upon all who were guilty of corruption at elections; but, if the person guilty convicted another offender, he was restored to his credit again. Ff. 48. 14. 1.
↑ 4 Inst. 23. Hale of parl. 112. Com. Journ. 10 & 11 May 1571.
↑ See, among numberless other instances, the articuli cleri, 9 Edw. II.
↑ Lord Bacon on uses. 8°. 326.
↑ D’ewes journ. 20. 73. Com. journ. 17 June 1747.
↑ Com. journ. 24 Jul. 1660.
↑ Rot. Parl. 9 Hen. IV. in Pryn. 4 Inst. 30, 31.
↑ D’wes journ. 35.
↑ 3 Inst. 41. 4 Inst. 26.
↑ Finch. L. 81. 234.
↑ 4 Inst. 28.
↑ Com. Journ. passim: e.g. 11 Jun. 1572. 5 Apr. 1604. 4 Jun. 14 Nov. 18 Dec. 1621. 11 Jul. 1625. 13 Sept. 1660. 25 Jul. 1667. 4 Aug. 1685. 24 Febr. 1691. 21 Jun. 1712. 16 Apr. 1717. 3 Feb. 1741. 10 Dec. 1745.
↑ 4 Inst. 28. Hale of parl. 38.
↑ Com. Journ. 21 Oct. 1553.
↑ Ibid. 21 Nov. 1554.
↑ Stat. 12 Car. II. c. 1.
↑ Stat. 30 Geo. II. c. 25.
Chapter the third.
Of the King, and his Title.
The supreme executive power of these kingdoms is vested by our laws in a single person, the king or queen: for it matters not to which sex the crown descends; but the person entitled to it, whether male or female, is immediately invested with all the ensigns, rights, and prerogatives of sovereign power; as is declared by statute 1 Mar. st. 3. c. 1.
In discoursing of the royal rights and authority, I shall consider the king under six distinct views: 1. With regard to his title. 2. His royal family. 3. His councils. 4. His duties. 5. His prerogative. 6. His revenue. And, first, with regard to his title.
The executive power of the English nation being vested in a single person, by the general consent of the people, the evidence of which general consent is long and immemorial usage, it became necessary to the freedom and peace of the state, that a rule should be laid down, uniform, universal, and permanent; in order to mark out with precision, who is that single person, to whom are committed (in subservience to the law of the land) the care and protection of the community; and to whom, in return, the duty and allegiance of every individual are due. It is of the highest importance to the public tranquillity, and to the consciences of private men, that this rule should be clear and indisputable: and our constitution has not left us in the dark upon this material occasion. It will therefore be the endeavour of this chapter to trace out the constutional doctrine of the royal succession, with that freedom and regard to truth, yet mixed with that reverence and respect, which the principles of liberty and the dignity of the subject require.
The grand fundamental maxim upon which the jus coronae, or right of succession to the throne of these kingdoms, depends, I take to be this: “that the crown is, by common law and constitutional custom, hereditary; and this in a manner peculiar to itself: but that the right of inheritance may from time to time be changed or limited by act of parliament; under which limitations the crown still continues hereditary.” And this proposition it will be the business of this chapter to prove, in all it’s branches: first, that the crown is hereditary; secondly, that it is hereditary in a manner peculiar to itself; thirdly, that this inheritance is subject to limitation by parliament; lastly, that when it is so limited, it is hereditary in the new proprietor.
1. First, it is in general hereditary, or descendible to the next heir, on the death or demise of the last proprietor. All regal governments must be either hereditary or elective: and, as I believe there is no instance wherein the crown of England has ever been asserted to be elective, except by the regicides at the infamous and unparalleled trial of king Charles I, it must of consequence be hereditary. Yet while I assert an hereditary, I by no means intend a jure divino, title to the throne. Such a title may be allowed to have subsisted under the theocratic establishments of the children of Israel in Palestine: but it never yet subsisted in any other country; save only so far as kingdoms, like other human fabrics, are subject to the general and ordinary dispensations of providence. Nor indeed have a jure divino and an hereditary right any necessary connexion with each other; as some have very weakly imagined. The titles of David and Jehu were equally jure divino, as those of either Solomon or Ahab; and yet David slew the sons of his predecessor, and Jehu his predecessor himself. And when our kings have the same warrant as they had, whether it be to sit upon the throne of their fathers, or to destroy the house of the preceding sovereign, they will then, and not before, possess the crown of England by a right like theirs, immediately derived from heaven. The hereditary right, which the laws of England acknowlege, owes it’s origin to the founders of our constitution, and to them only. It has no relation to, nor depends upon, the civil laws of the Jews, the Greeks, the Romans, or any other nation upon earth: the municipal laws of one society having no connexion with, or influence upon, the fundamental polity of another. The founders of our English monarchy might perhaps, if they had thought proper, have made it an elective monarchy: but they rather chose, and upon good reason, to establish originally a succession by inheritance. This has been acquiesced in by general consent; and ripened by degrees into common law: the very same title that every private man has to his own estate. Lands are not naturally descendible any more than thrones: but the law has thought proper, for the benefit and peace of the public, to establish hereditary succession in one as well as the other.
It must be owned, an elective monarchy seems to be the most obvious, and best suited of any to the rational principles of government, and the freedom of human nature: and accordingly we find from history that, in the infancy and first rudiments of almost every state, the leader, chief magistrate, or prince, hath usually been elective. And, if the individuals who compose that state could always continue true to first principles, uninfluenced by passion or prejudice, unassailed by corruption, and unawed by violence, elective succession were as much to be desired in a kingdom, as in other inferior communities. The best, the wisest, and the bravest man would then be sure of receiving that crown, which his endowments have merited; and the sense of an unbiassed majority would be dutifully acquiesced in by the few who were of different opinions. But history and observation will inform us, that elections of every kind (in the present state of human nature) are too frequently brought about by influence, partiality, and artifice: and, even where the case is otherwise, these practices will be often suspected, and as constantly charged upon the successful, by a splenetic disappointed minority. This is an evil to which all societies are liable; as well those of a private and domestic kind, as the great community of the public, which regulates and includes the rest. But in the former there is this advantage; that such suspicions, if false, proceed no farther than jealousies and murmurs, which time will effectually suppress; and, if true, the injustice may be remedied by legal means, by an appeal to those tribunals to which every member of society has (by becoming such) virtually engaged to submit. Whereas, in the great and independent society, which every nation composes, there is no superior to resort to but the law of nature; no method to redress the infringements of that law, but the actual exertion of private force. As therefore between two nations, complaining of mutual injuries, the quarrel can only be decided by the law of arms; so in one and the same nation, when the fundamental principles of their common union are supposed to be invaded, and more especially when the appointment of their chief magistrate is alleged to be unduly made, the only tribunal to which the complainants can appeal is that of the God of battels, the only process by which the appeal can be carried on is that of a civil and intestine war. An hereditary succession to the crown is therefore now established, in this and most other countries, in order to prevent that periodical bloodshed and misery, which the history of antient imperial Rome, and the more modern experience of Poland and Germany, may shew us are the consequences of elective kingdoms.
2. But, secondly, as to the particular mode of inheritance, it in general corresponds with the feodal path of descents, chalked out by the common law in the succession to landed estates; yet with one or two material exceptions. Like them, the crown will descend lineally to the issue of the reigning monarch; as it did from king John to Richard II, through a regular pedigree of six lineal generations. As in them, the preference of males to females, and the right of primogeniture among the males, are strictly adhered to. Thus Edward V succeeded to the crown, in preference to Richard his younger brother and Elizabeth his elder sisler. Like them, on failure of the male line, it descends to the issue female; according to the antient British custom remarked by Tacitus[1], “solent foeminarum ductu bellare, et sexum in imperiis non discernere.” Thus Mary I succeeded to Edward VI; and the line of Margaret queen of Scots, the daughter of Henry VII, succeeded on failure of the line of Henry VIII, his son. But, among the females, the crown descends by right of primogeniture to the eldest daughter only and her issue; and not, as in common inheritances, to all the daughters at once; the evident necessity of a sole succession to the throne having occasioned the royal law of descents to depart from the common law in this respect: and therefore queen Mary on the death of her brother succeeded to the crown alone, and not in partnership with her sister Elizabeth. Again: the doctrine of representation prevails in the descent of the crown, as it does in other inheritances; whereby the lineal descendants of any person deceased stand in the same place as their ancestor, if living, would have done. Thus Richard II succeeded his grandfather Edward III, in right of his father the black prince; to the exclusion of all his uncles, his grandfather’s younger children. Lastly, on failure of lineal descendants, the crown goes to the next collateral relations of the late king; provided they are lineally descended from the blood royal, that is, from that royal stock which originally acquired the crown. Thus Henry I succeeded to William II, John to Richard I, and James I to Elizabeth; being all derived from the conqueror, who was then the only regal stock. But herein there is no objection (as in the case of common descents) to the succession of a brother, an uncle, or other collateral relation, of the half blood; that is, where the relationship proceeds not from the same couple of ancestors (which constitutes a kinsman of the whole blood) but from a single ancestor only; as when two persons are derived from the same father, and not from the same mother, or vice versa: provided only, that the one ancestor, from whom both are descended, be that from whose veins the blood royal is communicated to each. Thus Mary I inherited to Edward VI, and Elizabeth inherited to Mary; all born of the same father, king Henry VIII, but all by different mothers. The reason of which diversity, between royal and common descents, will be better understood hereafter, when we examine the nature of inheritances in general.
3. The doctrine of hereditary right does by no means imply an indefeasible right to the throne. No man will, I think, assert this, that has considered our laws, constitution, and history, without prejudice, and with any degree of attention. It is unquestionably in the breast of the supreme legislative authority of this kingdom, the king and both houses of parliament, to defeat this hereditary right; and, by particular entails, limitations, and provisions, to exclude the immediate heir, and vest the inheritance in any one else. This is strictly consonant to our laws and constitution; as may be gathered from the expression so frequently used in our statute book, of “the king’s majesty, his heirs, and successors.” In which we may observe, that as the word, “heirs,“ necessarily implies an inheritance or hereditary right, generally subsisting in the royal person; so the word, “successors,” distinctly taken, must imply that this inheritance may sometimes be broke through; or, that there may be a successor, without being the heir, of the king. And this is so extremely reasonable, that without such a power, lodged somewhere, our polity would be very defective. For, let us barely suppose so melancholy a case, as that the heir apparent should be a lunatic, an idiot, or otherwise incapable of reigning: how miserable would the condition of the nation be, if he were also incapable of being set aside!—It is therefore necessary that this power should be lodged somewhere: and yet the inheritance, and regal dignity, would be very precarious indeed, if this power were expressly and avowedly lodged in the hands of the subject only, to be exerted whenever prejudice, caprice, or discontent should happen to take the lead. Consequently it can no where be so properly lodged as in the two houses of parliament, by and with the consent of the reigning king; who, it is not to be supposed, will agree to any thing improperly prejudicial to the rights of his own descendants. And therefore in the king, lords, and commons, in parliament assembled, our laws have expressly lodged it.
4. But, fourthly; however the crown may be limited or transferred, it still retains it’s descendible quality, and becomes hereditary in the wearer of it. And hence in our law the king is said never to die, in his political capacity; though, in common with other men, he is subject to mortality in his natural: because immediately upon the natural death of Henry, William, or Edward, the king survives in his successor. For the right of the crown vests, eo instanti, upon his heir; either the haeres natus, if the course of descent remains unimpeached, or the haeres factus, if the inheritance be under any particular settlement. So that there can be no interregnum; but, as sir Matthew Hale[2] observes, the right of sovereignty is fully invested in the successor by the very descent of the crown. And therefore, however acquired, it becomes in him absolutely hereditary, unless by the rules of the limitation it is otherwise ordered and determined. In the same manner as landed estates, to continue our former comparision, are by the law hereditary, or descendible to the heirs of the owner; but still there exists a power, by which the property of those lands may be transferred to another person. If this transfer be made simply and absolutely, the lands will be hereditary in the new owner, and descend to his heir at law: but if the transfer be clogged with any limitations, conditions, or entails, the lands must descend in that chanel, so limited and prescribed, and no other.
In these four points consists, as I take it, the constitutional notion of hereditary right to the throne: which will be still farther elucidated, and made clear beyond all dispute, from a short historical view of the successions to the crown of England, the doctrines of our antient lawyers, and the several acts of parliament that have from time to time been made, to create, to declare, to confirm, to limit, or to bar, the hereditary title to the throne. And in the pursuit of this enquiry we shall find, that from the days of Egbert, the first sole monarch of this kingdom, even to the present, the four cardinal maxims above-mentioned have ever been held the constitutional canons of succession. It is true, this succession, through fraud, or force, or sometimes through necessity, when in hostile times the crown descended on a minor or the like, has been very frequently suspended; but has always at last returned back into the old hereditary chanel, though sometimes a very considerable period has intervened. And, even in those instances where the succession has been violated, the crown has ever been looked upon as hereditary in the wearer of it. Of which the usurpers themselves were so sensible, that they for the most part endeavoured to vamp up some feeble shew of a title by descent, in order to amuse the people, while they gained the possession of the kingdom. And, when possession was once gained, they considered it as the purchase or acquisition of a new estate of inheritance, and transmitted or endeavoured to transmit it to their own posterity, by a kind of hereditary right of usurpation.
King Egbert about the year 800, found himself in possession of the throne of the west Saxons, by a long and undisturbed descent from his ancestors of above three hundred years. How his ancestors acquired their title, whether by force, by fraud, by contract, or by election, it matters not much to enquire; and is indeed a point of such high antiquity, as must render all enquiries at best but plausible guesses. His right must be supposed indisputably good, because we know no better. The other kingdoms of the heptarchy he acquired, some by consent, but most by a voluntary submission. And it is an established maxim in civil polity, and the law of nations, that when one country is united to another in such a manner, as that one keeps it’s government and states, and the other loses them; the latter entirely assimilates or is melted down in the former, and must adopt it’s laws and customs[3]. And in pursuance of this maxim there hath ever been, since the union of the heptarchy in king Egbert, a general acquiescence under the hereditary monarchy of the west Saxons, through all the united kingdoms.
From Egbert to the death of Edmund Ironside, a period of above two hundred years, the crown descended regularly, through a succession of fifteen princes, without any deviation or interruption, save only that king Edred, the uncle of Edwy, mounted the throne for about nine years, in the right of his nephew a minor, the times being very troublesome and dangerous. But this was with a view to preserve, and not to destroy, the succession; and accordingly Edwy succeeded him.
King Edmund Ironside was obliged, by the hostile irruption of the Danes, at first to divide his kingdom with Canute, king of Denmark; and Canute, after his death, seised the whole of it, Edmund’s sons being driven into foreign countries. Here the succession was suspended by actual force, and a new family introduced upon the throne: in whom however this new acquired throne continued hereditary for three reigns; when, upon the death of Hardiknute, the antient Saxon line was restored in the person of Edward the confessor.
He was not indeed the true heir to the crown, being the younger brother of king Edmund Ironside, who had a son Edward, sirnamed (from his exile) the outlaw, still living. But this son was then in Hungary; and, the English having just shaken off the Danish yoke, it was necessary that somebody on the spot should mount the throne; and the confessor was the next of the royal line then in England. On his decease without issue, Harold II usurped the throne; and almost at the same instant came on the Norman invasion: the right to the crown being all the time in Edgar, sirnamed Atheling, (which signifies in the Saxon language the first of the blood royal) who was the son of Edward the outlaw, and grandson of Edmund Ironside; or, as Matthew Paris[4] well expresses the sense of our old constitution, “Edmundus autem latusferreum, rex naturalis de stirpe regum, genuit Edwardum; et Edwardus genuit Edgarum, cui de jure debebatur regnum Anglorum.”
William the Norman claimed the crown by virtue of a pretended grant from king Edward the confessor; a grant which, if real, was in itself utterly invalid: because it was made, as Harold well observed in his reply to William’s demand[5], “absque generali senatus et populi conventu et edicto;” which also very plainly implies, that it then was generally understood that the king, with consent of the general council, might dispose of the crown and change the line of succession. William’s title however was altogether as good as Harold’s, he being a mere private subject, and an utter stranger to the royal blood. Edgar Atheling’s undoubted right was overwhelmed by the violence of the times; though frequently asserted by the English nobility after the conquest, till such time as he died without issue: but all their attempts proved unsuccessful, and only served the more firmly to establish the crown in the family which had newly acquired it.
This conquest then by William of Normandy was, like that of Canute before, a forcible transfer of the crown of England into a new family: but, the crown being so transferred, all the inherent properties of the crown were with it transferred also. For, the victory obtained at Hastings not being[6] a victory over the nation collectively, but only over the person of Harold, the only right that the conqueror could pretend to acquire thereby, was the right to possess the crown of England, not to alter the nature of the government. And therefore, as the English laws still remained in force, he must necessarily take the crown subject to those laws, and with all it’s inherent properties; the first and principal of which was it’s descendibility. Here then we must drop our race of Saxon kings, at least for a while, and derive our descents from William the conqueror as from a new stock, who acquired by right of war (such as it is, yet still the dernier resort of kings) a strong and undisputed title to the inheritable crown of England.
Accordingly it descended from him to his sons William II and Henry I. Robert, it must be owned, his eldest son, was kept out of possession by the arts and violence of his brethren; who perhaps might proceed upon a notion, which prevailed for some time in the law of descents, (though never adopted as the rule of public successions[7]) that when the eldest son was already provided for (as Robert was constituted duke of Normandy by his father’s will) in such a case the next brother was entitled to enjoy the rest of their father’s inheritance. But, as he died without issue, Henry at last had a good title to the throne, whatever he might have at first.
Stephen of Blois, who succeeded him, was indeed the grandson of the conqueror, by Adelicia his daughter, and claimed the throne by a feeble kind of hereditary right; not as being the nearest of the male line, but as the nearest male of the blood royal, excepting his elder brother Theobald, who was earl of Blois, and therefore seems to have waved, as he certainly never insisted on, so troublesome and precarious a claim. The real right was in the empress Matilda or Maud, the daughter of Henry I; the rule of succession being (where women are admitted at all) that the daughter of a son shall be preferred to the son of a daughter. So that Stephen was little better than a mere usurper; and therefore he rather chose to rely on a title by election[8], while the empress Maud did not fail to assert her hereditary right by the sword: which dispute was attended with various success, and ended at last in a compromise, that Stephen should keep the crown, but that Henry the son of Maud should succeed him; as he afterwards accordingly did.
Henry, the second of that name, was (next after his mother Matilda) the undoubted heir of William the conqueror; but he had also another connexion in blood, which endeared him still farther to the English. He was lineally descended from Edmund Ironside, the last of the Saxon race of hereditary kings. For Edward the outlaw, the son of Edmund Ironside, had (besides Edgar Atheling, who died without issue) a daughter Margaret, who was married to Malcolm king of Scotland; and in her the Saxon hereditary right resided. By Malcolm she had several children, and among the rest Matilda the wife of Henry I, who by him had the empress Maud, the mother of Henry II. Upon which account the Saxon line is in our histories frequently said to have been restored in his person: though in reality that right subsisted in the sons of Malcolm by queen Margaret; king Henry’s best title being as heir to the conqueror.
From Henry II the crown descended to his eldest son Richard I, who dying childless, the right vested in his nephew Arthur, the son of Geoffrey his next brother: but John, the youngest son of king Henry, seised the throne; claiming, as appears from his charters, the crown by hereditary right[9]: that is to say, he was next of kin to the deceased king, being his surviving brother; whereas Arthur was removed one degree farther, being his brother’s son, though by right of representation he stood in the place of his father Geoffrey. And however flimsey this title, and those of William Rufus and Stephen of Blois, may appear at this distance to us, after the law of descents hath now been settled for so many centuries, they were sufficient to puzzle the understandings of our brave, but unlettered, ancestors. Nor indeed can we wonder at the number of partizans, who espoused the pretensions of king John in particular; since even in the reign of his father, king Henry II, it was a point undetermined[10], whether, even in common inheritances, the child of an elder brother should succeed to the land in right of representation, or the younger surviving brother in right of proximity of blood. Nor is it to this day decided in the collateral succession to the fiefs of the empire, whether the order of the stocks, or the proximity of degree shall take place[11]. However, on the death of Arthur and his sister Eleanor without issue, a clear and indisputable title vested in Henry III the son of John: and from him to Richard the second, a succession of six generations, the crown descended in the true hereditary line. Under one of which race of princes[12] we find it declared in parliament, “that the law of the crown of England is, and always hath been, that the children of the king of England, whether born in England, or elsewhere, ought to bear the inheritance after the death of their ancestors. Which law, our sovereign lord the king, the prelates, earls, and barons, and other great men, together with all the commons, in parliament assembled, do approve and affirm for ever.”
Upon Richard the second’s resignation of the crown, he having no children, the right resulted to the issue of his grandfather Edward III. That king had many children, besides his eldest, Edward the black prince of Wales, the father of Richard II: but to avoid confusion I shall only mention three; William his second son, who died without issue; Lionel duke of Clarence, his third son; and John of Gant duke of Lancaster, his fourth. By the rules of succession therefore the posterity of Lionel duke of Clarence were entitled to the throne, upon the resignation of king Richard; and had accordingly been declared by the king, many years before, the presumptive heirs of the crown; which declaration was also confirmed in parliament[13]. But Henry duke of Lancaster, the son of John of Gant, having then a large army in the kingdom, the pretence of raising which was to recover his patrimony from the king, and to redress the grievances of the subject, it was impossible for any other title to be asserted with any safety; and he became king under the title of Henry IV. But, as sir Matthew Hale remarks[14], though the people unjustly assisted Henry IV in his usurpation of the crown, yet he was not admitted thereto, until he had declared that he claimed, not as a conqueror, (which he very much inclined to do[15]) but as a successor, descended by right line of the blood royal; as appears from the rolls of parliament in those times. And in order to this he set up a shew of two titles: the one upon the pretence of being the first of the blood royal in the intire male line, whereas the duke of Clarence left only one daughter Philippa; from which female branch, by a marriage with Edmond Mortimer earl of March, the house of York descended: the other, by reviving an exploded rumour, first propagated by John of Gant, that Edmond earl of Lancaster (to whom Henry’s mother was heiress) was in reality the elder brother of king Edward I; though his parents, on account of his personal deformity, had imposed him on the world for the younger: and therefore Henry would be intitled to the crown, either as successor to Richard II, in case the intire male line was allowed a preference to the female; or, even prior to that unfortunate prince, if the crown could descend through a female, while an intire male line was existing.
However, as in Edward the third’s time we find the parliament approving and affirming the law of the crown, as before stated, so in the reign of Henry IV they actually exerted their right of new-settling the succession to the crown. And this was done by the statute 7 Hen. IV. c. 2. whereby it is enacted, “that the inheritance of the crown and realms of England and France, and all other the king’s dominions, shall be set and remain[16] in the person of our sovereign lord the king, and in the sheirs of his body issuing;” and prince Henry is declared heir apparent to the crown, to hold to him and the heirs of his body issuing, with remainder to lord Thomas, lord John, and lord Humphry, the king’s sons, and the heirs of their bodies respectively. Which is indeed nothing more than the law would have done before, provided Henry the fourth had been a rightful king. It however serves to shew that it was then generally understood, that the king and parliament had a right to new-model and regulate the succession to the crown. And we may observe, with what caution and delicacy the parliament then avoided declaring any sentiment of Henry’s original title. However sir Edward Coke more than once expressly declares[17], that at the time of passing this act the right of the crown was in the descent from Philippa, daughter and heir of Lionel duke of Clarence.
Nevertheless the crown descended regularly from Henry IV to his son and grandson Henry V and VI; in the latter of whose reigns the house of York asserted their dormant title; and, after imbruing the kingdom in blood and confusion for seven years together, at last established it in the person of Edward IV. At his accession to the throne, after a breach of the succession that continued for three descents, and above threescore years, the distinction of a king de jure, and a king de facto began to be first taken; in order to indemnify such as had submitted to the late establishment, and to provide for the peace of the kingdom by confirming all honors conferred, and all acts done, by those who were now called the usurpers, not tending to the disherison of the rightful heir. In statute 1 Edw. IV. c. 1. the three Henrys are stiled, “late kings of England successively in dede, and not of ryght.” And, in all the charters which I have met with of king Edward, wherever he has occasion to speak of any of the line of Lancaster, he calls them, “nuper de facto, et non de jure, reges Angliae.”
Edward IV left two sons and a daughter; the eldest of which sons, king Edward V, enjoyed the regal dignity for a very short time, and was then deposed by Richard his unnatural uncle; who immediately usurped the royal dignity, having previously insinuated to the populace a suspicion of bastardy in the children of Edward IV, to make a shew of some hereditary title: after which he is generally believed to have murdered his two nephews; upon whose death the right of the crown devolved to their sister Elizabeth.
The tyrannical reign of king Richard III gave occasion to Henry earl of Richmond to assert his title to the crown. A title the most remote and unaccountable that was ever set up, and which nothing could have given success to, but the universal detestation of the then usurper Richard. For, besides that he claimed under a descent from John of Gant, whose title was now exploded, the claim (such as it was) was through John earl of Somerset, a bastard son, begotten by John of Gant upon Catherine Swinford. It is true, that, by an act of parliament 20 Ric. II, this son was, with others, legitimated and made inheritable to all lands, offices, and dignities, as if he had been born in wedlock: but still, with an express reservation of the crown, “excepta dignitate regali[18].”
Notwithstanding all this, immediately after the battle of Bosworth field, he assumed the regal dignity; the right of the crown then being, as sir Edward Coke expressly declares[19], in Elizabeth, eldest daughter of Edward IV: and his possession was established by parliament, held the first year of his reign. In the act for which purpose, the parliament seems to have copied the caution of their predecessors in the reign of Henry IV; and therefore (as lord Bacon the historian of this reign observes) carefully avoided any recognition of Henry VII’s right, which indeed was none at all; and the king would not have it by way of new law or ordinance, whereby a right might seem to be created and conferred upon him; and therefore a middle way was rather chosen, by way (as the noble historian expresses it) of establishment, and that under covert and indifferent words, “that the inheritance of the crown should rest, remain, and abide in king Henry VII and the heirs of his body:” thereby providing for the future, and at the same time acknowleging his present possession; but not determining either way, whether that possession was de jure or de facto merely. However he soon after married Elizabeth of York, the undoubted heiress of the conqueror, and thereby gained (as sir Edward Coke[20] declares) by much his best title to the crown. Whereupon the act made in his favour was so much disregarded, that it never was printed in our statute books.
Henry the eighth, the issue of this marriage, succeeded to the crown by clear indisputable hereditary right, and transmitted it to his three children in successive order. But in his reign we at several times find the parliament busy in regulating the succession to the kingdom. And, first, by statute 25 Hen. VIII. c. 12. which recites the mischiefs, which have and may ensue by disputed titles, because no perfect and substantial provision hath been made by law concerning the succession; and then enacts, that the crown shall be entailed to his majesty, and the sons or heirs males of his body; and in default of such sons to the lady Elizabeth (who is declared to be the king’s eldest issue female, in exclusion of the lady Mary, on account of her supposed illegitimacy by the divorce of her mother queen Catherine) and to the lady Elizabeth’s heirs of her body; and so on from issue female to issue female, and the heirs of their bodies, by course of inheritance according to their ages, as the crown of England hath been accustomed and ought to go, in case where there be heirs female of the same: and in default of issue female, then to the king’s right heirs for ever. This single statute is an ample proof of all the four positions we at first set out with.
But, upon the king’s divorce from Ann Boleyn, this statute was, with regard to the settlement of the crown, repealed by statute 28 Hen. VIII. c. 7. wherein the lady Elizabeth is also, as well as the lady Mary, bastardized, and the crown settled on the king’s children by queen Jane Seymour, and his future wives; and, in defect of such children, then with this remarkable remainder, to such persons as the king by letters patent, or last will and testament, should limit and appoint the same. A vast power; but, notwithstanding, as it was regularly vested in him by the supreme legislative authority, it was therefore indisputably valid. But this power was never carried into execution; for by statute 35 Hen. VIII. c. 1. the king’s two daughters are legitimated again, and the crown is limited to prince Edward by name, after that to the lady Mary, and then to the lady Elizabeth, and the heirs of their respective bodies; which succession took effect accordingly, being indeed no other than the usual course of the law, with regard to the descent of the crown.
But lest there should remain any doubt in the minds of the people, through this jumble of acts for limiting the succession, by statute 1 Mar. p. 2. c. 1. queen Mary’s hereditary right to the throne is acknowleged and recognized in these words: “the crown of these realms is most lawfully, justly, and rightly descended and come to the queen’s highness that now is, being the very, true, and undoubted heir and inheritrix thereof.” And again, upon the queen’s marriage with Philip of Spain, in the statute which settles the preliminaries of that match[21], the hereditary right to the crown is thus asserted and declared: “as touching the right of the queen’s inheritance in the realm and dominions of England, the children, whether male or female, shall succeed in them, according to the known laws, statutes, and customs of the same.” Which determination of the parliament, that the succession shall continue in the usual course, seems tacitly to imply a power of new-modelling and altering it, in case the legislature had thought proper.
On queen Elizabeth’s accession, her right is recognized in still stronger terms than her sister’s; the parliament acknowleging[22], “that the queen’s highness is, and in very deed and of most mere right ought to be, by the laws of God, and the laws and statutes of this realm, our most lawful and rightful sovereign liege lady and queen; and that her highness is rightly, lineally, and lawfully descended and come of the blood royal of this realm of England; in and to whose princely person, and to the heirs of her body lawfully to be begotten, after her, the imperial crown and dignity of this realm doth belong.” And in the same reign, by statute 13 Eliz. c. 1. we find the right of parliament to direct the succession of the crown asserted in the most explicit words. “If any person shall hold, affirm, or maintain that the common laws of this realm, not altered by parliament, ought not to direct the right of the crown of England; or that the queen’s majesty, with and by the authority of parliament, is not able to make laws and statutes of sufficient force and validity, to limit and bind the crown of this realm, and the descent, limitation, inheritance, and government thereof;—such person, so holding, affirming, or maintaining, shall during the life of the queen be guilty of high treason; and after her decease shall be guilty of a misdemesnor, and forfeit his goods and chattels.”
On the death of queen Elizabeth, without issue, the line of Henry VIII became extinct. It therefore became necessary to recur to the other issue of Henry VII, by Elizabeth of York his queen: whose eldest daughter Margaret having married James IV king of Scotland, king James the sixth of Scotland, and of England the first, was the lineal descendant from that alliance. So that in his person, as clearly as in Henry VIII, centered all the claims of different competitors from the conquest downwards, he being indisputably the lineal heir of the conqueror. And, what is still more remarkable, in his person also centered the right of the Saxon monarchs, which had been suspended from the conquest till his accession. For, as was formerly observed, Margaret the sister of Edgar Atheling, the daughter of Edward the outlaw, and granddaughter of king Edmund Ironside, was the person in whom the hereditary right of the Saxon kings, supposing it not abolished by the conquest, resided. She married Malcolm king of Scotland; and Henry II, by a descent from Matilda their daughter, is generally called the restorer of the Saxon line. But it must be remembered, that Malcolm by his Saxon queen had sons as well as daughters; and that the royal family of Scotland from that time downwards were the offspring of Malcolm and Margaret. Of this royal family king James the first was the direct lineal heir, and therefore united in his person every possible claim by hereditary right to the English as well as Scottish throne, being the heir both of Egbert and William the conqueror.
And it is no wonder that a prince of more learning than wisdom, who could deduce an hereditary title for more than eight hundred years, should easily be taught by the flatterers of the times to believe there was something divine in this right, and that the finger of providence was visible in it’s preservation. Whereas, though a wise institution, it was clearly a human institution; and the right inherent in him no natural, but a positive, right. And in this and no other light was it taken by the English parliament; who by statute 1 Jac. I. c. 1. did “recognize and acknowlege, that immediately upon the dissolution and decease of Elizabeth late queen of England, the imperial crown thereof did by inherent birthright, and lawful and undoubted succession, descend and come to his most excellent majesty, as being lineally, justly, and lawfully, next and sole heir of the blood royal of this realm.” Not a word here of any right immediately derived from heaven: which, if it existed any where, must be sought for among the aborigines of the island, the antient Britons; among whose princes indeed some have gone to search it for him[23].
But, wild and absurd as the doctrine of divine right most undoubtedly is, it is still more astonishing, that when so many human hereditary rights had centered in this king, his son and heir king Charles the first should be told by those infamous judges, who pronounced his unparalleled sentence, that he was an elective prince; elected by his people, and therefore accountable to them, in his own proper person, for his conduct. The confusion, instability, and madness, which followed the fatal catastrophe of that pious and unfortunate prince, will be a standing argument in favour of hereditary monarchy to all future ages; as they proved at last to the then deluded people: who, in order to recover that peace and happiness which for twenty years together they had lost, in a solemn parliamentary convention of the states restored the right heir of the crown. And in the proclamation for that purpose, which was drawn up and attended by both houses[24], they declared, “that, according to their duty and allegiance, they did heartily, joyfully, and unanimously acknowlege and proclaim, that immediately upon the decease of our late sovereign lord king Charles, the imperial crown of these realms did by inherent birthright and lawful and undoubted succession descend and come to his most excellent majesty Charles the second, as being lineally, justly, and lawfully, next heir of the blood royal of this realm: and thereunto they most humbly and faithfully did submit and oblige themselves, their heirs, and posterity for ever.”
Thus I think it clearly appears, from the highest authority this nation is acquainted with, that the crown of England hath been ever an hereditary crown; though subject to limitations by parliament. The remainder of this chapter will consist principally of those instances, wherein the parliament has asserted or exercised this right of altering and limiting the succession; a right which, we have seen, was before exercised and asserted in the reigns of Henry IV, Henry VII, Henry VIII, queen Mary, and queen Elizabeth.
The first instance, in point of time, is the famous bill of exclusion, which raised such a ferment in the latter end of the reign of king Charles the second. It is well known, that the purport of this bill was to have set aside the king’s brother and presumptive heir, the duke of York, from the succession, on the score of his being a papist; that it passed the house of commons, but was rejected by the lords; the king having also declared beforehand, that he never would be brought to consent to it. And from this transaction we may collect two things: 1. That the crown was universally acknowleged to be hereditary; and the inheritance indefeasible unless by parliament: else it had been needless to prefer such a bill. 2. That the parliament had a power to have defeated the inheritance: else such a bill had been ineffectual. The commons acknowleged the hereditary right then subsisting; and the lords did not dispute the power, but merely the propriety, of an exclusion. However, as the bill took no effect, king James the second succeeded to the throne of his ancestors; and might have enjoyed it during the remainder of his life, but for his own infatuated conduct, which (with other concurring circumstances) brought on the revolution in 1688.
The true ground and principle, upon which that memorable event proceeded, was an entirely new case in politics, which had never before happened in our history; the abdication of the reigning monarch, and the vacancy of the throne thereupon. It was not a defeazance of the right of succession, and a new limitation of the crown, by the king and both houses of parliament: it was the act of the nation alone, upon a conviction that there was no king in being. For in a full assembly of the lords and commons, met in convention upon the supposition of this vacancy, both houses[25] came to this resolution; “that king James the second, having endeavoured to subvert the constitution of the kingdom, by breaking the original contract between king and people; and, by the advice of jesuits and other wicked persons, having violated the fundamental laws; and having withdrawn himself out of this kingdom; has abdicated the government, and that the throne is thereby vacant.” Thus ended at once, by this sudden and unexpected vacancy of the throne, the old line of succession; which from the conquest had lasted above six hundred years, and from the union of the heptarchy in king Egbert almost nine hundred. The facts themselves thus appealed to, the king’s endeavours to subvert the constitution by breaking the original contract, his violation of the fundamental laws, and his withdrawing himself out of the kingdom, were evident and notorious: and the consequences drawn from these facts (namely, that they amounted to an abdication of the government; which abdication did not affect only the person of the king himself, but also all his heirs, and rendered the throne absolutely and completely vacant) it belonged to our ancestors to determine. For, whenever a question arises between the society at large and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of the society itself: there is not upon earth any other tribunal to resort to. And that these consequences were fairly deduced from these facts, our ancestors have solemnly determined, in a full parliamentary convention representing the whole society. The reasons upon which they decided may be found at large in the parliamentary proceedings of the times; and may be matter of instructive amusement for us to contemplate, as a speculative point of history. But care must be taken not to carry this enquiry farther, than merely for instruction or amusement. The idea, that the consciences of posterity were concerned in the rectitude of their ancestors’ decisions, gave birth to those dangerous political heresies, which so long distracted the state, but at length are all happily extinguished. I therefore rather chuse to consider this great political measure, upon the solid footing of authority, than to reason in it’s favour from it’s justice, moderation, and expedience: because that might imply a right of dissenting or revolving from it, in case we should think it to have been unjust, oppressive, or inexpedient. Whereas, our ancestors having most indisputably a competent jurisdiction to decide this great and important question, and having in fact decided it, it is now become our duty at this distance of time to acquiesce in their determination; being born under that establishment which was built upon this foundation, and obliged by every tie, religious as well as civil, to maintain it.
But, while we rest this fundamental transaction, in point of authority, upon grounds the least liable to cavil, we are bound both in justice and gratitude to add, that it was conducted with a temper and moderation which naturally arose from it’s equity; that, however it might in some respects go beyond the letter of our antient laws, (the reason of which will more fully appear hereafter[26]) it was agreeable to the spirit of our constitution, and the rights of human nature; and that though in other points (owing to the peculiar circumstances of things and persons) it was not altogether so perfect as might have been wished, yet from thence a new aera commenced, in which the bounds of prerogative and liberty have been better defined, the principles of government more thoroughly examined and understood, and the rights of the subject more explicitly guarded by legal provisions, than in any other period of the English history. In particular, it is worthy observation that the convention, in this their judgment, avoided with great wisdom the wild extremes into which the visionary theories of some zealous republicans would have led them. They held that this misconduct of king James amounted to an endeavour to subvert the constitution, and not to an actual subversion, or total dissolution of the government, according to the principles of Mr Locke[27]: which would have reduced the society almost to a state of nature; would have levelled all distinctions of honour, rank, offices, and property; would have annihilated the sovereign power, and in consequence have repealed all positive laws; and would have left the people at liberty to have erected a new system of state upon a new foundation of polity. They therefore very prudently voted it to amount to no more than an abdication of the government, and a consequent vacancy of the throne; whereby the government was allowed to subsist, though the executive magistrate was gone, and the kingly office to remain, though king James was no longer king[28]. And thus the constitution was kept intire; which upon every sound principle of government must otherwise have fallen to pieces, had so principal and constituent a part as the royal authority been abolished, or even suspended.
This single postulatum, the vacancy of the throne, being once established, the rest that was then done followed almost of course. For, if the throne be at any time vacant (which may happen by other means besides that of abdication; as if all the blood royal should fail, without any successor appointed by parliament;) if, I say, a vacancy by any means whatsoever should happen, the right of disposing of this vacancy seems naturally to result to the lords and commons, the trustees and representatives of the nation. For there are no other hands in which it can so properly be intrusted; and there is a necessity of it’s being intrusted somewhere, else the whole frame of government must be dissolved and perish. The lords and commons having therefore determined this main fundamental article, that there was a vacancy of the throne, they proceeded to fill up that vacancy in such manner as they judged the most proper. And this was done by their declaration of 12 February 1688[29] in the following manner: “that William and Mary, prince and princess of Orange, be, and be declared king and queen, to hold the crown and royal dignity during their lives, and the life of the survivor of them; and that the sole and full exercise of the regal power be only in, and executed by, the said prince of Orange, in the names of the said prince and princess, during their joint lives; and after their deceases the said crown and royal dignity to be to the heirs of the body of the said princess; and for default of such issue to the princess Anne of Denmark and the heirs of her body; and for default of such issue to the heirs of the body of the said prince of Orange.”
Perhaps, upon the principles before established, the convention might (if they pleased) have vested the regal dignity in a family intirely new, and strangers to the royal blood: but they were too well acquainted with the benefits of hereditary succession, and the influence which it has by custom over the minds of the people, to depart any farther from the antient line than temporary necessity and self-preservation required. They therefore settled the crown, first on king William and queen Mary, king James’s eldest daughter, for their joint lives; then on the survivor of them; and then on the issue of queen Mary: upon failure of such issue, it was limited to the princess Anne, king James’s second daughter, and her issue; and lastly, on failure of that, to the issue of king William, who was the grandson of Charles the first, and nephew as well as son in law of king James the second, being the son of Mary his eldest sister. This settlement included all the protestant posterity of king Charles I, except such other issue as king James might at any time have, which was totally omitted through fear of a popish succession. And this order of succession took effect accordingly.
These three princes therefore, king William, queen Mary, and queen Anne, did not take the crown by hereditary right or descent, but by way of donation or purchase, as the lawyers call it; by which they mean any method of acquiring an estate otherwise than by descent. The new settlement did net merely consist in excluding king James, and the person pretended to be prince of Wales, and then suffering the crown to descend in the old hereditary chanel: for the usual course of descent was in some instances broken through; and yet the convention still kept it in their eye, and paid a great, though not total, regard to it. Let us see how the succession would have stood, if no abdication had happened, and king James had left no other issue than his two daughters queen Mary and queen Anne. It would have stood thus: queen Mary and her issue; queen Anne and her issue; king William and his issue. But we may remember, that queen Mary was only nominally queen, jointly with her husband king William, who alone had the regal power; and king William was personally preferred to queen Anne, though his issue was postponed to hers. Clearly therefore these princes were successively in possession of the crown by a title different from the usual course of descent.
It was towards the end of king William’s reign, when all hopes of any surviving issue from any of these princes died with the duke of Glocester, that the king and parliament thought it necessary again to exert their power of limiting and appointing the succession, in order to prevent another vacancy of the throne; which must have ensued upon their deaths, as no farther provision was made at the revolution, than for the issue of king William, queen Mary, and queen Anne. The parliament had previously by the statute of 1 W. & M. st. 2. c. 2. enacted, that every person who should be reconciled to, or hold communion with, the see of Rome, should profess the popish religion, or should marry a papist, should be excluded and for ever incapable to inherit, possess, or enjoy, the crown; and that in such case the people should be absolved from their allegiance, and the crown should descend to such persons, being protestants, as would have inherited the same, in case the person so reconciled, holding communion, professing, or marrying, were naturally dead. To act therefore consistently with themselves, and at the same time pay as much regard to the old hereditary line as their former resolutions would admit, they turned their eyes on the princess Sophia, electress and duchess dowager of Hanover, the most accomplished princess of her age[30]. For, upon the impending extinction of the protestant posterity of Charles the first, the old law of regal descent directed them to recur to the descendants of James the first; and the princess Sophia, being the youngest daughter of Elizabeth queen of Bohemia, who was the daughter of James the first, was the nearest of the antient blood royal, who was not incapacitated by prosessing the popish religion. On her therefore, and the heirs of her body, being protestants, the remainder of the crown, expectant on the death of king William and queen Anne without issue, was settled by statute 12 & 13 W. III. c. 2. And at the same time it was enacted, that whosoever should hereafter come to the possession of the crown should join in the communion of the church of England as by law established.
This is the last limitation of the crown that has been made by parliament: and these several actual limitations, from the time of Henry IV to the present, do clearly prove the power of the king and parliament to new-model or alter the succession. And indeed it is now again made highly penal to dispute it: for by the statute 6 Ann. c. 7. it is enacted, that if any person maliciously, advisedly, and directly, shall maintain by writing or printing, that the kings of this realm with the authority of parliament are not able to make laws to bind the crown and the descent thereof, he shall be guilty of high treason; or if he maintains the same by only preaching, teaching, or advised speaking, he shall incur the penalties of a praemunire.
The princess Sophia dying before queen Anne, the inheritance thus limited descended on her son and heir king George the first; and, having on the death of the queen taken effect in his person, from him it descended to his late majesty king George the second; and from him to his grandson and heir, our present gracious sovereign, king George the third.
Hence it is easy to collect, that the title to the crown is at present hereditary, though not quite so absolutely hereditary as formerly; and the common stock or ancestor, from whom the descent must be derived, is also different. Formerly the common stock was king Egbert; then William the conqueror; afterwards in James the first’s time the two common stocks united, and so continued till the vacancy of the throne in 1688: now it is the princess Sophia, in whom the inheritance was vested by the new king and parliament. Formerly the descent was absolute, and the crown went to the next heir without any restriction: but now, upon the new settlement, the inheritance is conditional; being limited to such heirs only, of the body of the princess Sophia, as are protestant members of the church of England, and are married to none but protestants.
And in this due medium consists, I apprehend, the true constitutional notion of the right of succession to the imperial crown of these kingdoms. The extremes, between which it steers, are each of them equally destructive of those ends for which societies were formed and are kept on foot. Where the magistrate, upon every succession, is elected by the people, and may by the express provision of the laws be deposed (if not punished) by his subjects, this may sound like the perfection of liberty, and look well enough when delineated on paper; but in practice will be ever productive of tumult, contention, and anarchy. And, on the other hand, divine indefeasible hereditary right, when coupled with the doctrine of unlimited passive obedience, is surely of all constitutions the most thoroughly slavish and dreadful. But when such an hereditary right, as our laws have created and vested in the royal stock, is closely interwoven with those liberties, which, we have seen in a former chapter, are equally the inheritance of the subject; this union will form a constitution, in theory the most beautiful of any, in practice the most approved, and, I trust, in duration the most permanent. It was the duty of an expounder of our laws to lay this constitution before the student in it’s true and genuine light: it is the duty of every good Englishman to understand, to revere, to defend it.
↑ in vit. Agricolae.
↑ Hist. P. C. 61.
↑ Puff. L. of N. and N. b. 8. c. 12. §. 6.
↑ A. D. 1066.
↑ William of Malmsb. l. 3.
↑ Hale, Hist. C. L. c. 5 . Seld. review of tithes, c. 8.
↑ See lord Lyttelton’s life of Henry II. I. 467.
↑ “Ego Stephanus Dei gratia assensu cleri et populi in regem Anglorum electus, &c.” (Cart. A.D. 1136. Ric. de Hagustald. 314. Hearne ad Guil. Neubr. 711.)
↑ “Regni Angliae; quod nobis jure competit haereditario.” Spelm. Hist. R. Jeh. apud Wilkins. 354.
↑ Glanv. l. 7. c. 3.
↑ Mod. Un. Hist. xxx. 512.
↑ Stat. 25 Edw. III. st. 2.
↑ Sandford’s geneal. hist. 246.
↑ Hist. C. L. c. 5.
↑ Seld. tit. hon. 1. 3.
↑ soit mys et demoerge.
↑ 4 Inst. 37. 205.
↑ 4 Inst. 36.
↑ Ibid. 37.
↑ 4 Inst. 37.
↑ 1 Mar. p. 2. c. 2.
↑ Stat. 1 Eliz. c. 3.
↑ Elizabeth of York, the mother of queen Margaret of Scotland, was heiress of the house of Mortimer. And Mr Carte observes, that the house of Mortimer, in virtue of it’s descent from Gladys only sister to Lewellin ap Jorwerth the great, had the true right to the principality of Wales. iii. 705.
↑ Com. Journ. 8 May 1660.
↑ Com. Journ. 7 Feb. 1688.
↑ See chap. 7.
↑ on Gov. p. 2. c. 19.
↑ Law of forfeit. 118, 119.
↑ Com. Journ. 12 Feb. 1688
↑ Sandford, in his genealogical history, published A. D. 1677, speaking (page 535) of the princesses Elizabeth, Louisa, and Sophia, daughters of the queen of Bohemia, says, the first was reputed the most learned, the second the greatest artist, and the last one of the most accomplished ladies in Europe.
Chapter the fourth.
Of the King’s royal family.
The first and most considerable branch of the king’s royal family, regarded by the laws of England, is the queen.
The queen of England is either queen regent, queen consort, or queen dowager. The queen regent, regnant, or sovereign, is she who holds the crown in her own right; as the first (and perhaps the second) queen Mary, queen Elizabeth, and queen Anne; and such a one has the same powers, prerogatives, rights, dignities, and duties, as if she had been a king. This was observed in the entrance of the last chapter, and is expressly declared by statute 1 Mar. I. st. 3. c. 1. But the queen consort is the wife of the reigning king; and she by virtue of her marriage is participant of divers prerogatives above other women[1].
And, first, she is a public person, exempt and distinct from the king; and not, like other married women, so closely connected as to have lost all legal or separate existence so long as the marriage continues. For the queen is of ability to purchase lands, and to convey them, to make leases, to grant copyholds, and do other acts of ownership, without the concurrence of her lord; which no other married woman can do[2]: a privilege as old as the Saxon aera[3]. She is also capable of taking a grant from the king, which no other wife is from her husband; and in this particular she agrees with the Augusta, or piissima regina conjux divi imperatoris of the Roman laws; who, according to Justinian[4], was equally capable of making a grant to, and receiving one from, the emperor. The queen of England hath separate courts and officers distinct from the king’s, not only in matters of ceremony, but even of law; and her attorney and solicitor general are intitled to a place within the bar of his majesty’s courts, together with the king’s counsel[5]. She may likewise sue and be sued alone, without joining her husband. She may also have a separate property in goods as well as lands, and has a right to dispose of them by will. In short, she is in all legal proceedings looked upon as a feme sole, and not as a feme covert; as a single, not as a married woman[6]. For which the reason given by sir Edward Coke is this: because the wisdom of the common law would not have the king (whose continual care and study is for the public, and circa ardua regni) to be troubled and disquieted on account of his wife’s domestic affairs; and therefore it vests in the queen a power of transacting her own concerns, without the intervention of the king, as if she was an unmarried woman.
The queen hath also many exemptions, and minute prerogatives. For instance: she pays no toll[7]; nor is she liable to any amercement in any court[8]. But in general, unless where the law has expressly declared her exempted, she is upon the same footing with other subjects; being to all intents and purposes the king’s subject, and not his equal: in like manner as, in the imperial law, “Augusta legibus soluta non est[9].”
The queen hath also some pecuniary advantages, which form her a distinct revenue: as, in the first place, she is intitled to an antient perquisite called queen-gold or aurum reginae; which is a royal revenue, belonging to every queen consort during her marriage with the king, and due from every person who hath made a voluntary offering or fine to the king, amounting to ten marks or upwards, for and in consideration of any privileges, grants, licences, pardons, or other matter of royal favour conferred upon him by the king: and it is due in the proportion of one tenth part more, over and above the intire offering or fine made to the king; and becomes an actual debt of record to the queen’s majesty by the mere recording the fine[10]. As, if an hundred marks of silver be given to the king for liberty to take in mortmain, or to have a fair, market, park, chase, or free warren: there the queen is intitled to ten marks in silver, or (what was formerly an equivalent denomination) to one mark in gold, by the name of queen-gold, or aurum reginae[11]. But no such payment is due for any aids or subsidies granted to the king in parliament or convocation; nor for fines imposed by courts on offenders, against their will; nor for voluntary presents to the king, without any consideration moving from him to the subject; nor for any sale or contract whereby the present revenues or possessions of the crown are granted away or diminished[12].
The revenue of our antient queens, before and soon after the conquest, seems to have consisted in certain reservations or rents out of the demesne lands of the crown, which were expressly appropriated to her majefty, distinct from the king. It is frequent in domesday-book, after specifying the rent due to the crown, to add likewise the quantity of gold or other renders reserved to the queen[13]. These were frequently appropriated to particular purposes; to buy wool for her majesty’s use[14], to purchase oyl for her lamps[15], or to furnish her attire from head to foot[16], which was frequently very costly, as one single robe in the fifth year of Henry II stood the city of London in upwards of fourscore pounds[17]. A practice somewhat similar to that of the eastern countries, where whole cities and provinces were specifically assigned to purchase particular parts of the queen’s apparel[18]. And, for a farther addition to her income, this duty of queen-gold is supposed to have been originally granted; those matters of grace and favour, out of which it arose, being frequently obtained from the crown by the powerful intercession of the queen. There are traces of it’s payment, though obscure ones, in the book of domesday and in the great pipe-roll of Henry the first[19]. In the reign of Henry the second the manner of collecting it appears to have been well understood, and it forms a distinct head in the antient dialogue of the exchequer[20] written in the time of that prince, and usually attributed to Gervase of Tilbury. From that time downwards it was regularly claimed and enjoyed by all the queen consorts of England till the death of Henry VIII; though after the accession of the Tudor family the collecting of it seems to have been much neglected: and, there being no queen consort afterwards till the accession of James I, a period of near sixty years, it’s very nature and quantity became then a matter of doubt: and, being referred by the king to the then chief justices and chief baron, their report of it was so very unfavorable[21], that queen Anne (though she claimed it) yet never thought proper to exact it. In 1635, 11 Car. I, a time fertile of expedients for raising money upon dormant precedents in our old records (of which ship-money was a fatal instance) the king, at the petition of his queen Henrietta Maria, issued out his writ for levying it; but afterwards purchased it of his consort at the price of ten thousand pounds; finding it, perhaps, too trifling and troublesome to levy. And when afterwards, at the restoration, by the abolition of the military tenures, and the fines that were consequent upon them, the little that legally remained of this revenue was reduced to almost nothing at all, in vain did Mr Prynne, by a treatise which does honour to his abilities as a painful and judicious antiquarian, endeavour to excite queen Catherine to revive this antiquated claim.
Another antient perquisite belonging to the queen consort, mentioned by all our old writers[22], and, therefore only, worthy notice, is this: that on the taking of a whale on the coasts, which is a royal fish, it shail be divided between the king and queen; the head only being the king’s property, and the tail of it the queen’s. “De sturgione observetur, quod rex illum habebit integrum: de balena vero sufficit, si rex habeat caput, et regina caudam.” The reason of this whimsical division, as assigned by our antient records[23], was, to furnish the queen’s wardrobe with whalebone.
But farther: though the queen is in all respects a subject, yet, in point of the security of her life and person, she is put on the same footing with the king. It is equally treason (by the statute 25 Edw. III.) to compass or imagine the death of our lady the king’s companion, as of the king himself: and to violate, or defile, the queen consort, amounts to the same high crime; as well in the person committing the fact, as in the queen herself, if consenting. A law of Henry the eighth[24] made it treason also for any woman, who was not a virgin, to marry the king without informing him thereof: but this law was soon after repealed; it trespassing too strongly, as well on natural justice, as female modesty. If however the queen be accused of any species of treason, she shall (whether consort or dowager) be tried by the house of peers, as queen Ann Boleyn was in 28 Hen. VIII.
The husband of a queen regnant, as prince George of Denmark was to queen Anne, is her subject; and may be guilty of high treason against her: but, in the instance of conjugal fidelity, he is not subjected to the same penal restrictions. For which the reason seems to be, that, if a queen consort is unfaithful to the royal bed, this may debase or bastardize the heirs to the crown; but no such danger can be consequent on the infidelity of the husband to a queen regnant.
A queen dowager is the widow of the king, and as such enjoys most of the privileges belonging to her as queen consort. But it is not high treason to conspire her death; or to violate her chastity, for the same reason as was before alleged, because the succession to the crown is not thereby endangered. Yet still, pro dignitate regali, no man can marry a queen dowager without special licence from the king, on pain of forfeiting his lands and goods. This sir Edward Coke[25] tells us was enacted in parliament in 6 Hen. VI, though the statute be not in print. But she, though an alien born, shall still be intitled to dower after the king’s demise, which no other alien is[26]. A queen dowager, when married again to a subject, doth not lose her regal dignity, as peeresses dowager do their peerage when they marry commoners. For Katherine, queen dowager of Henry V, though she married a private gentleman, Owen ap Meredith ap Theodore, commonly called Owen Tudor; yet, by the name of Katherine queen of England, maintained an action against the bishop of Carlisle. And so the queen dowager of Navarre marrying with Edmond, brother to king Edward the first, maintained an action of dower by the name of queen of Navarre[27].
The prince of Wales, or heir apparent to the crown, and also his royal consort, and the princess royal, or eldest daughter of the king, are likewise peculiarly regarded by the laws. For, by statute 25 Edw. III, to compass or conspire the death of the former, or to violate the chastity of either of the latter, are as much high treason, as to conspire the death of the king, or violate the chastity of the queen. And this upon the same reason, as was before given; because the prince of Wales is next in succession to the crown, and to violate his wife might taint the blood royal with bastardy: and the eldest daughter of the king is also alone inheritable to the crown, in failure of issue male, and therefore more respected by the laws than any of her younger sisters; insomuch that upon this, united with other (feodal) principles, while our military tenures were in force, the king might levy an aid for marrying his eldest daughter, and her only. The heir apparent to the crown is usually made prince of Wales and earl of Chester, by special creation, and investiture; but, being the king’s eldest son, he is by inheritance duke of Cornwall, without any new creation[28].
The younger sons and daughters of the king, who are not in the immediate line of succession, are little farther regarded by the laws, than to give them precedence before all peers and public officers as well ecclesiastical as temporal. This is done by the statute 31 Hen. VIII. c. 10. which enacts that no person, except the king’s children, shall prefume to sit or have place at the side of the cloth of estate in the parliament chamber; and that certain great officers therein named shall have precedence above all dukes, except only such as shall happen to be the king’s son, brother, uncle, nephew (which sir Edward Coke[29] explains to signify grandson or nepos) or brother’s or sister’s son. But under the description of the king’s children his grandsons are held to be included, without having recourse to sir Edward Coke’s interpretation of nephew: and therefore when his late majesty created his grandson, the second son of Frederick prince of Wales deceased, duke of York, and referred it to the house of lords to settle his place and precedence, they certified[30] that he ought to have place next to the duke of Cumberland, the king’s youngest son; and that he might have a seat on the left hand of the cloth of estate. But when, on the accession of his present majesty, those royal personages ceased to take place as the children, and ranked only as the brother and uncle, of the king, they also left their seats on the side of the cloth of estate: so that when the duke of Glocester, his majesty’s second brother, took his seat in the house of peers[31], he was placed on the upper end of the earls’ bench (on which the dukes usually fit) next to his royal highness the duke of York. And in 1718, upon a question referred to all the judges by king George I, it was resolved by the opinion of ten against the other two, that the education and care of all the king’s grandchildren while minors, and the care and approbation of their marriages, when grown up, did belong of right to his majesty as king of this realm, during their father’s life[32]. And this may suffice for the notice, taken by law, of his majesty’s royal family.
↑ Finch. L. 86.
↑ 4 Rep. 23.
↑ Seld. Jan. Angl. 1. 42.
↑ Cod. 5. 16. 26.
↑ Seld. tit. hon. 1. 6. 7.
↑ Finch. L. 86. Co. Litt. 133.
↑ Co. Litt. 133.
↑ Finch. L. 185.
↑ Ff. 1. 3. 31.
↑ Pryn. Aur. Reg. 2.
↑ 12 Rep. 21. 4 Inst. 358.
↑ Ibid. Pryn. 6. Madox. hist. exch. 242.
↑ Bedefordscire. Maner. Lestone redd. per annum xxii lib. &c: ad opus reginae ii uncias auri.—Herefordscire. In Lene, &c, consuetud. ut praepositus manerii veniente domina sua (regina) in maner. praesentaret ei xviii oras denar. ut esset ipsa lacto animo. Pryn. Append. to Aur. Reg. 2, 3.
↑ causa coadunandi lanam reginae. Domesd. ibid.
↑ Civitas Lundon. Pro oleo ad lampad. reginae. Mag. rot. pip. temp. Hen. II. ibid.
↑ Vicecomes Berkescire, xvi l. pro cappa reginae. (Mag. rot. pip. 19—22 Hen. II. ibid.) Civitas Lund. cordubanario reginae xx s. Mag. Rot. 2 Hen. II. Madox hist. exch. 419.
↑ Pro roba ad opus regina, quater xx l. & vi s. viii d. Mag. Rot. 5 Hen. II. ibid. 250.
↑ Solere aiunt barbaros reges Persarum ac Syrorum—uxoribus civitates attribuere, hoc modo; haec civitas mulieri redimiculum praebeat, haec in collum, haec in crines, &c. Cic. in Verrem. lib. 3. cap. 33.
↑ See Madox Disceptat. epistolar. 74. Pryn. Aur. Regin. Append. 5.
↑ lib. 2. c. 26.
↑ Mr Prynne, with some appearance of reason, insinuates, that their researches were very superficial. Aur. Reg. 125.
↑ Bracton. l. 3. c. 3. Britton. c. 17. Flet. l. 1. c. 45 & 46.
↑ Pryn. Aur. Reg. 127.
↑ Stat. 33 Hen. VIII. c. 21.
↑ 2 Inst. 18. See Riley’s Plac. Parl. 672.
↑ Co. Litt. 31.
↑ 2 Inst. 50.
↑ 8 Rep. 1. Seld. tit. of hon. 2. 5.
↑ 4 Inst. 362.
↑ Lord’s Journ. 24 Apr. 1760.
↑ Ibid. 10 Jan. 1765.
↑ Fortesc. Al. 401–440.
Chapter the fifth.
Of the Councils belonging to the King.
The third point of view, in which we are to consider the king, is with regard to his councils. For, in order to assist him in the discharge of his duties, the maintenance of his dignity, and the exertion of his prerogative, the law hath assigned him a diversity of councils to advise with.
1. The first of these is the high court of parliament, whereof we have already treated at large.
2. Secondly, the peers of the realm are by their birth hereditary counsellors of the crown, and may be called together by the king to impart their advice in all matters of importance to the realm, either in time of parliament, or, which hath been their principal use, when there is no parliament in being[1]. Accordingly Bracton[2], speaking of the nobility of his time, says they might properly be called “consules, a consulendo; reges enim tales sibi associant ad consulendum.” And in our law books[3] it is laid down, that peers are created for two reasons; 1. Ad consulendum, 2. Ad defendendum regem: for which reasons the law gives them certain great and high privileges; such as freedom from arrests, &c, even when no parliament is sitting: because the law intends, that they are always assisting the king with their counsel for the commonwealth; or keeping the realm in safety by their prowess and valour.
Instances of conventions of the peers, to advise the king, have been in former times very frequent; though now fallen into disuse, by reason of the more regular meetings of parliament. Sir Edward Coke[4] gives us an extract of a record, 5 Hen. IV, concerning an exchange of lands between the king and the earl of Northumberland, wherein the value of each was agreed to be settled by advice of parliament (if any should be called before the feast of St Lucia) or otherwise by advice of the grand council (of peers) which the king promises to assemble before the said feast, in case no parliament shall be called. Many other instances of this kind of meeting are to be found under our antient kings: though the formal method of convoking them had been so long left off, that when king Charles I in 1640 issued out writs under the great seal to call a great council of all the peers of England to meet and attend his majesty at York, previous to the meeting of the long parliament, the earl of Clarendon[5] mentions it as a new invention, not before heard of; that is, as he explains himself, so old, that it had not been practiced in some hundreds of years. But, though there had not so long before been an instance, nor has there been any since, of assembling them in so solemn a manner, yet, in cases of emergency, our princes have at several times thought proper to call for and consult as many of the nobility as could easily be got together: as was particularly the case with king James the second, after the landing of the prince of Orange; and with the prince of Orange himself, before he called that convention parliament, which afterwards called him to the throne.
Besides this general meeting, it is usually looked upon to be the right of each particular peer of the realm, to demand an audience of the king, and to lay before him, with decency and respect, such matters as he shall judge of importance to the public weal. And therefore, in the reign of Edward II, it was made an article of impeachment in parliament against the two Hugh Spencers, father and son, for which they were banished the kingdom, “that they by their evil covin would not suffer the great men of the realm, the king’s good counsellors, to speak with the king, or to come near him; but only in the presence and hearing of the said Hugh the father and Hugh the son, or one of them, and at their will, and according to such things as pleased them[6].”
3. A third council belonging to the king, are, according to sir Edward Coke[7], his judges of the courts of law, for law matters. And this appears frequently in our statutes, particularly 14 Edw. III. c. 5. and in other books of law. So that when the king’s council is mentioned generally, it must be defined, particularized, and understood, secundum subjectam materiam; and, if the subject be of a legal nature, then by the king’s council is understood his council for matters of law; namely, his judges. Therefore when by statute 16 Ric. II. c. 5. it was made a high offence to import into this kingdom any papal bulles, or other processes from Rome; and it was enacted, that the offenders should be attached by their bodies, and brought before the king and his council to answer for such offence; here, by the expression of king’s council, were understood the king’s judges of his courts of justice, the subject matter being legal: this being the general way of interpreting the word, council[8].
4. But the principal council belonging to the king is his privy council, which is generally called, by way of eminence, the council. And this, according to sir Edward Coke’s description of it[9], is a noble, honorable, and reverend assembly, of the king and such as he wills to be of his privy council, in the king’s court or palace. The king’s will is the sole constituent of a privy counsellor; and this also regulates their number, which of antient time was twelve or thereabouts. Afterwards it increased to so large a number, that it was found inconvenient for secresy and dispatch; and therefore king Charles the second in 1679 limited it to thirty: whereof fifteen were to be the principal officers of state, and those to be counsellors, virtute officii; and the other fifteen were composed of ten lords and five commoners of the king’s choosing[10]. But since that time the number has been much augmented, and now continues indefinite. At the same time also, the antient office of lord president of the council was revived in the person of Anthony earl of Shaftsbury; an officer, that by the statute of 31 Hen. VIII. c. 10. has precedence next after the lord chancellor and lord treasurer.
Privy counsellors are made by the king’s nomination, without either patent or grant; and, on taking the necessary oaths, they become immediately privy counsellors during the life of the king that chooses them, but subject to removal at his discretion.
The duty of a privy counsellor appears from the oath of office[11], which consists of seven articles: 1. To advise the king according to the best of his cunning and discretion. 2. To advise for the king’s honour and good of the public, without partiality through affection, love, meed, doubt, or dread. 3. To keep the king’s counsel secret. 4. To avoid corruption. 5. To help and strengthen the execution of what shall be there resolved. 6. To withstand all persons who would attempt the contrary. And, lastly, in general, 7. To observe, keep, and do all that a good and true counsellor ought to do to his sovereign lord.
The power of the privy council is to enquire into all offences against the government, and to commit the offenders to safe custody, in order to take their trial in some of the courts of law. But their jurisdiction herein is only to enquire, and not to punish: and the persons committed by them are entitled to their habeas corpus by statute 16 Car. I. c. 10. as much as if committed by an ordinary justice of the peace. And, by the same statute, the court of starchamber, and the court of requests, both of which consisted of privy counsellors, were dissolved; and it was declared illegal for them to take cognizance of any matter of property, belonging to the subjects of this kingdom. But, in plantation or admiralty causes, which arise out of the jurisdiction of this kingdom; and in matters of lunacy and idiocy[12], being a special flower of the prerogative; with regard to these, although they may eventually involve questions of extensive property, the privy council continues to have cognizance, being the court of appeal in such causes: or, rather, the appeal lies to the king’s majesty himself in council. Whenever also a question arises between two provinces in America or elsewhere, as concerning the extent of their charters and the like, the king in his council exercises original jurisdiction therein, upon the principles of feodal sovereignty. And so likewise when any person claims an island or a province, in the nature of a feodal principality, by grant from the king or his ancestors, the determination of that right belongs to his majesty in council: as was the case of the earl of Derby with regard to the isle of Man in the reign of queen Elizabeth, and of the earl of Cardigan and others, as representatives of the duke of Montague, with relation to the island of St Vincent in 1764. But from all the dominions of the crown, excepting Great Britain and Ireland, an appellate jurisdiction (in the last resort) is vested in the same tribunal; which usually exercises it’s judicial authority in a committee of the whole privy council, who hear the allegations and proofs, and make their report to his majesty in council, by whom the judgment is finally given.
As to the qualifications of members to sit at this board: any natural born subject of England is capable of being a member of the privy council; taking the proper oaths for security of the government, and the test for security of the church. But, in order to prevent any persons under foreign attachments from insinuating themselves into this important trust, as happened in the reign of king William in many instances, it is enacted by the act of settlement[13], that no person born out of the dominions of the crown of England, unless born of English parents, even though naturalized by parliament, shall be capable of being of the privy council.
The privileges of privy counsellors, as such, consist principally in the security which the law has given them against attempts and conspiracies to destroy their lives. For, by statute 3 Hen. VII. c. 14. if any of the king’s servants, of his houshold, conspire or imagine to take away the life of a privy counsellor, it is felony, though nothing be done upon it. And the reason of making this statute, sir Edward Coke[14] tells us, was because such servants have greater and readier means, either by night or by day, to destroy such as be of great authority, and near about the king: and such a conspiracy was, just before this parliament, made by some of king Henry the seventh’s houshold servants, and great mischief was like to have ensued thereupon. This extends only to the king’s menial servants. But the statute 9 Ann. c. 16. goes farther, and enacts, that any persons that shall unlawfully attempt to kill, or shall unlawfully assault, and strike, or wound, any privy counsellor in the execution of his office, shall be felons, and suffer death as such. This statute was made upon the daring attempt of the sieur Guiscard, who stabbed Mr Harley, afterwards earl of Oxford, with a penknife, when under examination for high crimes in a committee of the privy council.
The dissolution of the privy council depends upon the king’s pleasure; and he may, whenever he thinks proper, discharge any particular member, or the whole of it, and appoint another. By the common law also it was dissolved ipso facto by the king’s demise; as deriving all it’s authority from him. But now, to prevent the inconveniences of having no council in being at the accession of a new prince, it is enacted by statute 6 Ann. c. 7. that the privy council shall continue for six months after the demise of the crown, unless sooner determined by the successor.
↑ Co. Litt. 110.
↑ l. 1. c. 8.
↑ 7 Rep. 34. 9 Rep. 49. 12 Rep. 96.
↑ 1 Inst. 110.
↑ Hist. b. 2.
↑ 4 Inst. 53.
↑ 1 Inst. 110.
↑ 3 Inst. 125.
↑ 4 Inst. 53.
↑ Temple’s Mem. part. 3.
↑ 4 Inst. 54.
↑ 3 P. Wms. 108.
↑ Stat. 12 & 13 Will. III. c. 2.
↑ 3 Inst. 38.
Chapter the sixth.
Of the King’s duties.
I Proceed next to the duties, incumbent on the king by our constitution; in consideration of which duties his dignity and prerogative are established by the laws of the land: it being a maxim in the law, that protection and subjection are reciprocal[1]. And these reciprocal duties are what, I apprehend, were meant by the convention in 1688, when they declared that king James had broken the original contract between king and people. But however, as the terms of that original contract were in some measure disputed, being alleged to exist principally in theory, and to be only deducible by reason and the rules of natural law; in which deduction different understandings might very considerably differ; it was, after the revolution, judged proper to declare these duties expressly, and to reduce that contract to a plain certainty. So that, whatever doubts might be formerly raised by weak and scrupulous minds about the existence of such an original contract, they must now entirely cease; especially with regard to every prince, who hath reigned since the year 1688.
The principal duty of the king is, to govern his people according to law. Nec regibus infinita aut libera potestas, was the constitution of our German ancestors on the continent[2]. And this is not only consonant to the principles of nature, of liberty, of reason, and of society, but has always been esteemed an express part of the common law of England, even when prerogative was at the highest. “The king,” saith Bracton[3], who wrote under Henry III, “ought not to be subject to man, but to God, and to the law; for the law maketh the king. Let the king therefore render to the law, what the law has invested in him with regard to others; dominion, and power: for he is not truly king, where will and pleasure rules, and not the law.” And again[4]; “the king also hath a superior, namely God, and also the law, by which he was made a king.” Thus Bracton: and Fortescue also[5], having first well distinguished between a monarchy absolutely and despotically regal, which is introduced by conquest and violence, and a political or civil monarchy, which arises from mutual consent; (of which last species he asserts the government of England to be) immediately lays it down as a principle, that “the king of England must rule his people according to the decrees of the laws thereof: insomuch that he is bound by an oath at his coronation to the observance and keeping of his own laws.” But, to obviate all doubts and difficulties concerning this matter, it is expressly declared by statute 12 & 13 W. III. c. 2. that “the laws of England are the birthright of the people thereof; and all the kings and queens who shall ascend the throne of this realm ought to administer the government of the same according to the said laws; and all their officers and ministers ought to serve them respectively according to the same: and therefore all the laws and statutes of this realm, for securing the established religion, and the rights and liberties of the people thereof, and all other laws and statutes of the same now in force, are by his majesty, by and with the advice and consent of the lords spiritual and temporal and commons, and by authority of the same, ratified and confirmed accordingly.”
And, as to the terms of the original contract between king and people, these I apprehend to be now couched in the coronation oath, which by the statute 1 W. & M. st. 1. c. 6. is to be administred to every king and queen, who shall succeed to the imperial crown of these realms, by one of the archbishops or bishops of the realm, in the presence of all the people; who on their parts do reciprocally take the oath of allegiance to the crown. This coronation oath is conceived in the following terms:
“The archbishop or bishop shall say, Will you solemnly promise and swear to govern the people of this kingdom of England, and the dominions thereto belonging, according to the statutes in parliament agreed on, and the laws and customs of the same?—The king or queen shall say, I solemnly promise so to do.
“Archbishop or bishop. Will you to your power cause law and justice, in mercy, to be executed in all your judgments?—King or queen. I will.
“Archbishop or bishop. Will you to the utmost of your power maintain the laws of God, the true profession of the gospel, and the protestant reformed religion established by the law? And will you preserve unto the bishops and clergy of this realm, and to the churches committed to their charge, all such rights and privileges as by law do or shall appertain unto them, or any of them?—King or queen. All this I promise to do.
“After this the king or queen, laying his or her hand upon the holy gospel, shall say, The things which I have here before promised I will perform and keep: so help me God. And then shall kiss the book.”
This is the form of the coronation oath, as it is now prescribed by our laws: the principal articles of which appear to be at least as antient as the mirror of justices[6], and even as the time of Bracton[7]: but the wording of it was changed at the revolution, because (as the statute alleges) the oath itself had been framed in doubtful words and expressions, with relation to antient laws and constitutions at this time unknown[8]. However, in what form soever it be conceived, this is most indisputably a fundamental and original express contract; though doubtless the duty of protection is impliedly as much incumbent on the sovereign before coronation as after: in the same manner as allegiance to the king becomes the duty of the subject immediately on the descent of the crown, before he has taken the oath of allegiance, or whether he ever takes it at all. This reciprocal duty of the subject will be considered in it’s proper place. At present we are only to observe, that in the king’s part of this original contract are expressed all the duties that a monarch can owe to his people; viz. to govern according to law: to execute judgment in mercy: and to maintain the established religion. And, with respect to the latter of these three branches, we may farther remark, that by the act of union, 5 Ann. c. 8. two preceding statutes are recited and confirmed; the one of the parliament of Scotland, the other of the parliament of England: which enact; the former, that every king at his accession shall take and subscribe an oath, to preserve the protestant religion and presbyterian church government in Scotland; the latter, that at his coronation he shall take and subscribe a similar oath, to preserve the settlement of the church of England within England, Ireland, Wales, and Berwick, and the territories thereunto belonging.
↑ 7 Rep. 5.
↑ Tac. de mer. Germ. c. 7.
↑ l. 1. c. 8.
↑ l. 2. c. 16. §. 3.
↑ c. 9 & 34.
↑ cap. I. §. 2.
↑ l. 3. tr. 1. c. 9.
↑ In the old folio abridgment of the statutes, printed by Lettou and Machlinia in the reign of Edward IV, (penes me) there is preserved a copy of the old coronation oath; which, as the book is extremely scarce, I will here transcribe. Ceo est le serement que le roy jurre a soun coronement: que il gardera et meintenera lez droitez et lez franchisez de saynt esglise grauntez auncienment dez droitez roys christiens dEngletere, et quil gardera toutez sez terrez honoures et dignities droiturelx et franks del coron du roialme dEngletere en tout maner dentierte fanz null maner damenusement, et lez droitez dispergez dilapidez ou perdux de la corone a soun poiair reappeller en launcien estate, et quil gardera le peas de seynt esglise et al clergie et al people de bon accorde, et quil face faire en toutez sez jugementez owel et droit justice oue discrecion et misericorde, et quil grauntera a tenure lez leyes et custumez du roialme, et a soun poiair lez face garder et affermer que lez gentez du people avont faitez et esliez, et les malveys leyz et custumes de tout oustera, et ferme peas et establie al people de soun roialme en ceo garde esgardera a soun poiair: come Dieu luy aide. Tit. sacramentum regis. fol. m. ij.
Chapter the seventh.
Of the King’s Perogative.
It was observed in a former chapter[1], that one of the principal bulwarks of civil liberty, or (in other words) of the British constitution, was the limitation of the king’s prerogative by bounds so certain and notorious, that it is impossible he should ever exceed them, without the consent of the people, on the one hand; or without, on the other, a violation of that original contract, which in all states impliedly, and in ours most expressly, subsists between the prince and the subject. It will now be our business to consider this prerogative minutely; to demonstrate it’s necessity in general; and to mark out in the most important instances it’s particular extent and restrictions: from which considerations this conclusion will evidently follow, that the powers which are vested in the crown by the laws of England, are necessary for the support of society; and do not intrench any farther on our natural liberties, than is expedient for the maintenance of our civil.
There cannot be a stronger proof of that genuine freedom, which is the boast of this age and country, than the power of discussing and examining, with decency and respect, the limits of the king’s prerogative. A topic, that in some former ages was thought too delicate and sacred to be profaned by the pen of a subject. It was ranked among the arcana imperii; and, like the mysteries of the bona dea, was not suffered to be pried into by any but such as were initiated in it’s service: because perhaps the exertion of the one, like the solemnities of the other, would not bear the inspection of a rational and sober enquiry. The glorious queen Elizabeth herself made no scruple to direct her parliaments to abstain from discoursing of matters of state[2]; and it was the constant language of this favorite princess and her ministers, that even that august assembly “ought not to deal, to judge, or to meddle, with her majesty’s prerogative royal[3].” And her successor, king James the first, who had imbibed high notions of the divinity of regal sway, more than once laid it down in his speeches, that “as it is atheism and blasphemy in a creature to dispute what the deity may do, so it is presumption and sedition in a subject to dispute what a king may do in the height of his power: good christians, he adds, will be content with God’s will, revealed in his word; and good subjects will rest in the king’s will, revealed in his law[4].”
But, whatever might be the sentiments of some of our princes, this was never the language of our antient constitution and laws. The limitation of the regal authority was a first and essential principle in all the Gothic systems of government established in Europe; though gradually driven out and overborne, by violence and chicane, in most of the kingdoms on the continent. We have seen, in the preceding chapter, the sentiments of Bracton and Fortescue, at the distance of two centuries from each other. And sir Henry Finch, under Charles the first, after the lapse of two centuries more, though he lays down the law of prerogative in very strong and emphatical terms, yet qualifies it with a general resriction, in regard to the liberties of the people. “The king hath a prerogative in all things, that are not injurious to the subject; for in them all it must be remembered, that the king’s prerogative stretcheth not to the doing of any wrong[5].” Nihil enim aliud potest rex, nisi id solum quod de jure potest[6]. And here it may be some satissaction to remark, how widely the civil law differs from our own, with regard to the authority of the laws over the prince, or (as a civilian would rather have expressed it) the authority of the prince over the laws. It is a maxim of the English law, as we have seen from Bracton, that “rex debet esse sub lege, quid lex facit regem:” the imperial law will tell us, that “in omnibus, imperatoris excipitur fortuna; cui ipsas leges Deus subjecit[7].” We shall not long hesitate to which of them to give the preference, as most conducive to those ends for which societies were framed, and are kept together; especially as the Roman lawyers themselves seem to be sensible of the unreasonableness of their own constitution. “Decet tamen principem,” says Paulus, “servare leges, quibus ipse solutus est[8].” This is at once laying down the principle of despotic power, and at the same time acknowleging it’s absurdity.
By the word prerogative we usually understand that special pre-eminence, which the king hath, over and above all other persons, and out of the ordinary course of the common law, in right of his regal dignity. It signifies, in it’s etymology, (from prae and rogo) something that is required or demanded before, or in preference to, all others. And hence it follows, that it must be in it’s nature singular and eccentrical; that it can only be applied to those rights and capacities which the king enjoys alone, in contradistinction to others, and not to those which he enjoys in common with any of his subjects: for if once any one prerogative of the crown could be held in common with the subject, it would cease to be prerogative any longer. And therefore Finch[9] lays it down as a maxim, that the prerogative is that law in case of the king, which is law in no case of the subject.
Prerogatives are either direct or incidental. The direct are such positive substantial parts of the royal character and authority, as are rooted in and spring from the king’s political person, considered merely by itself, without reference to any other extrinsic circumstance; as, the right of sending embassadors, of creating peers, and of making war or peace. But such prerogatives as are incidental bear always a relation to something else, distinct from the king’s person; and are indeed only exceptions, in favour of the crown, to those general rules that are established for the rest of the community: such as, that no costs shall be recovered against the king; that the king can never be a joint-tenant; and that his debt shall be preferred before a debt to any of his subjects. These, and an infinite number of other instances, will better be understood, when we come regularly to consider the rules themselves, to which these incidental prerogatives are exceptions. And therefore we will at present only dwell upon the king’s substantive or direct prerogatives.
These substantive or direct prerogatives may again be divided into three kinds: being such as regard, first, the king’s royal character; secondly, his royal authority; and, lastly, his royal income. These are necessary, to secure reverence to his person, obedience to his commands, and an affluent supply for the ordinary expenses of government; without all of which it is impossible to maintain the executive power in due independence and vigour. Yet, in every branch of this large and extensive dominion, our free constitution has interposed such seasonable checks and restrictions, as may curb it from trampling on those liberties, which it was meant to secure and establish. The enormous weight of prerogative (if left to itself, as in arbitrary government it is) spreads havoc and destruction among all the inferior movements: but, when balanced and bridled (as with us) by it’s proper counterpoise, timely and judiciously applied, it’s operations are then equable and regular, it invigorates the whole machine, and enables every part to answer the end of it’s construction.
In the present chapter we shall only consider the two first of these divisions, which relate to the king’s political character and authority: or, in other words, his dignity and regal power; to which last the name of prerogative is frequently narrowed and confined. The other division, which forms the royal revenue, will require a distinct examination; according to the known distribution of the feodal writers, who distinguish the royal prerogatives into the majora and minora regalia, in the latter of which classes the rights of the revenue are ranked. For, to use their own words, “majora regalia imperii prae-eminentiam spectant; minora vero ad commodum pecuniarium immediate attinent; et haec proprie fiscalia sunt, et ad jus fisci pertinent[10].”
First, then, of the royal dignity. Under every monarchical establishment, it is necessary to distinguish the prince from his subjects, not only by the outward pomp and decorations of majesty, but also by ascribing to him certain qualities, as inherent in his royal capacity, distinct from and superior to those of any other individual in the nation. For, though a philosophical mind will consider the royal person merely as one man appointed by mutual consent to preside over many others, and will pay him that reverence and duty which the principles of society demand, yet the mass of mankind will be apt to grow insolent and refractory, if taught to consider their prince as a man of no greater perfection than themselves. The law therefore ascribes to the king, in his high political character, not only large powers and emoluments which form his prerogative and revenue, but likewise certain attributes of a great and transcendent nature; by which the people are led to consider him in the light of a superior being, and to pay him that awful respect, which may enable him with greater case to carry on the business of government. This is what I understand by the royal dignity, the several branches of which we will now proceed to examine.
I. And, first, the law ascribes to the king the attribute of sovereignty, or pre-eminence. “Rex est vicarius,” says Bracton[11], “et minister Dei in terra: omnis quidem sub eo est, et ipse sub nullo, nisi tantum sub Deo.” He is said to have imperial dignity; and in charters before the conquest is frequently stiled basileus and imperator, the titles respectively assumed by the emperors of the east and west[12]. His realm is declared to be an empire, and his crown imperial, by many acts of parliament, particularly the statutes 24 Hen. VIII. c. 12. and 25 Hen. VIII. c. 28[13]; which at the same time declare the king to be the supreme head of the realm in matters both civil and ecclesiastical, and of consequence inferior to no man upon earth, dependent on no man, accountable to no man. Formerly there prevailed a ridiculous notion, propagated by the German and Italian civilians, that an emperor could do many things which a king could not, (as the creation of notaries and the like) and that all kings were in some degree subordinate and subject to the emperor of Germany or Rome. The meaning therefore of the legislature, when it uses these terms of empire and imperial, and applies them to the realm and crown of England, is only to assert that our king is equally sovereign and independent within these his dominions, as any emperor is in his empire[14]; and owes no kind of subjection to any other potentate upon earth. Hence it is, that no suit or action can be brought against the king, even in civil matters, because no court can have jurisdiction over him. For all jurisdiction implies superiority of power: authority to try would be vain and idle, without an authority to redress; and the sentence of a court would be contemptible, unless that court had power to command the execution of it: but who, says Finch[15], shall command the king? Hence it is likewise, that by law the person of the king is sacred, even though the measures pursued in his reign be completely tyrannical and arbitrary: for no jurisdiction upon earth has power to try him in a criminal way; much less to condemn him to punishment. If any foreign jurisdiction had this power, as was formerly claimed by the pope, the independence of the kingdom would be no more: and, if such a power were vested in any domestic tribunal, there would soon be an end of the constitution, by destroying the free agency of one of the constituent parts of the sovereign legislative power.
Are then, it may be asked, the subjects of England totally destitute of remedy, in case the crown should invade their rights, either by private injuries, or public oppressions? To this we may answer, that the law has provided a remedy in both cases.
And, first, as to private injuries; if any person has, in point of property, a just demand upon the king, he must petition him in his court of chancery, where his chancellor will administer right as a matter of grace, though not upon compulsion[16]. And this is entirely consonant to what is laid down by the writers on natural law. “A subject, says Puffendorf[17], so long as he continues a subject, hath no way to oblige his prince to give him his due, when he refuses it; though no wise prince will ever refuse to stand to a lawful contract. And, if the prince gives the subject leave to enter an action against him, upon such contract, in his own courts, the action itself proceeds rather upon natural equity, than upon the municipal laws.” For the end of such action is not to compel the prince to observe the contract, but to persuade him. And, as to personal wrongs; it is well observed by Mr Locke[18], “the harm which the sovereign can do in his own person not being likely to happen often, nor to extend itself far; nor being able by his single strength to subvert the laws, nor oppress the body of the people, (should any prince have so much weakness and ill nature as to endeavour to do it)—the inconveniency therefore of some particular mischiefs, that may happen sometimes, when a heady prince comes to the throne, are well recompensed by the peace of the public and security of the government, in the person of the chief magistrate being thus set out of the reach of danger.”
Next, as to cases of ordinary public oppression, where the vitals of the constitution are not attacked, the law hath also assigned a remedy. For, as a king cannot misuse his power, without the advice of evil counsellors, and the assistance of wicked ministers, these men may be examined and punished. The constitution has therefore provided, by means of indictments, and parliamentary impeachments, that no man shall dare to assist the crown in contradiction to the laws of the land. But it is at the same time a maxim in those laws, that the king himself can do no wrong: since it would be a great weakness and absurdity in any system of positive law, to define any possible wrong, without any possible redress.
For, as to such public oppressions as tend to dissolve the constitution, and subvert the fundamentals of government, they are cases which the law will not, out of decency, suppose; being incapable of distrusting those, whom it has invested with any part of the supreme power; since such distrust would render the exercise of that power precarious and impracticable[19]. For, whereever the law expresses it’s distrust of abuse of power, it always vests a superior coercive authority in some other hand to correct it; the very notion of which destroys the idea of sovereignty. If therefore (for example) the two houses of parliament, or either of them, had avowedly a right to animadvert on the king, or each other, or if the king had a right to animadvert on either of the houses, that branch of the legislature, so subject to animadversion, would instantly cease to be part of the supreme power; the ballance of the constitution would be overturned; and that branch or branches, in which this jurisdiction resided, would be completely sovereign. The supposition of law therefore is, that neither the king nor either house of parliament (collectively taken) is capable of doing any wrong; since in such cases the law feels itself incapable of furnishing any adequate remedy. For which reason all oppressions, which may happen to spring from any branch of the sovereign power, must necessarily be out of the reach of any stated rule, or express legal provision: but, if ever they unfortunately happen, the prudence of the times must provide new remedies upon new emergencies.
Indeed, it is found by experience, that whenever the unconstitutional oppressions, even of the sovereign power, advance with gigantic strides and threaten desolation to a state, mankind will not be reasoned out of the feelings of humanity; nor will sacrifice their liberty by a scrupulous adherence to those political maxims, which were originally established to preserve it. And therefore, though the positive laws are silent, experience will furnish us with a very remarkable case, wherein nature and reason prevailed. When king James the second invaded the fundamental constitution of the realm, the convention declared an abdication, whereby the throne was rendered vacant, which induced a new settlement of the crown. And so far as this precedent leads, and no farther, we may now be allowed to lay down the law of redress against public oppression. If therefore any future prince should endeavour to subvert the constitution by breaking the original contract between king and people, should violate the fundamental laws, and should withdraw himself out of the kingdom; we are now authorized to declare that this conjunction of circumstances would amount to an abdication, and the throne would be thereby vacant. But it is not for us to say, that any one, or two, of these ingredients would amount to such a situation, for there our precedent would fail us. In these therefore, or other circumstances, which a fertile imagination may furnish, since both law and history are silent, it becomes us to be silent too; leaving to future generations, whenever necessity and the safety of the whole shall require it, the exertion of those inherent (though latent) powers of society, which no climate, no time, no constitution, no contract, can ever destroy or diminish.
II. Besides the attribute of sovereignty, the law also ascribes to the king, in his political capacity, absolute perfection. The king can do no wrong. Which antient and fundamental maxim is not to be understood, as if every thing transacted by the government was of course just and lawful, but means only two things. First, that whatever is exceptionable in the conduct of public affairs is not to be imputed to the king, nor is he answerable for it personally to his people: for this doctrine would totally destroy that constitutional independence of the crown, which is necessary for the balance of power, in our free and active, and therefore compounded, constitution. And, secondly, it means that the prerogative of the crown extends not to do any injury: it is created for the benefit of the people, and therefore cannot be exerted to their prejudice[20].
The king, moreover, is not only incapable of doing wrong, but even of thinking wrong: he can never mean to do an improper thing: in him is no folly or weakness. And therefore, if the crown should be induced to grant any franchise or privilege to a subject contrary to reason, or in any wise prejudicial to the commonwealth, or a private person, the law will not suppose the king to have meant either an unwise or an injurious action, but declares that the king was deceived in his grant; and thereupon such grant is rendered void, merely upon the foundation of fraud and deception, either by or upon those agents, whom the crown has thought proper to employ. For the law will not cast an imputation on that magistrate whom it entrusts with the executive power, as if he was capable of intentionally disregarding his trust: but attributes to mere imposition (to which the most perfect of sublunary beings must still continue liable) those little inadvertencies, which, if charged on the will of the prince, might lessen him in the eyes of his subjects.
Yet still, notwithstanding this personal perfection, which the law attributes to the sovereign, the constitution has allowed a latitude of supposing the contrary, in respect to both houses of parliament; each of which, in it’s turn, hath exerted the right of remonstrating and complaining to the king even of those acts of royalty, which are most properly and personally his own; such as messages signed by himself, and speeches delivered from the throne. And yet, such is the reverence which is paid to the royal person, that though the two houses have an undoubted right to consider these acts of state in any light whatever, and accordingly treat them in their addresses as personally proceeding from the prince, yet, among themselves, (to preserve the more perfect decency, and for the greater freedom of debate) they usually suppose them to flow from the advice of the administration. But the privilege of canvassing thus freely the personal acts of the sovereign (either directly, or even through the medium of his reputed advisers) belongs to no individual, but is confined to those august assemblies: and there too the objections must be proposed with the utmost respect and deference. One member was sent to the tower[21], for suggesting that his majesty’s answer to the address of the commons contained “high words, to fright the members out of their duty;” and another[22], for saying that a part of the king’s speech “seemed rather to be calculated for the meridian of Germany than Great Britain, and that the king was a stranger to our language and constitution.”
In farther pursuance of this principle, the law also determines that in the king can be no negligence, or laches, and therefore no delay will bar his right. Nullum tempus occurrit regi is the standing maxim upon all occasions: for the law intends that the king is always busied for the public good, and therefore has not leisure to assert his right within the times limited to subjects[23]. In the king also can be no stain or corruption of blood: for if the heir to the crown were attainted of treason and felony, and afterwards the crown should descend to him, this would purge the attainder ipso facto[24]. And therefore when Henry VII, who as earl of Richmond stood attainted, came to the crown, it was not thought necessary to pass an act of parliament to reverse this attainder; because, as lord Bacon in his history of that prince informs us, it was agreed that the assumption of the crown had at once purged all attainders. Neither can the king in judgment of law, as king, ever be a minor or under age; and therefore his royal grants and assents to acts of parliament are good, though he has not in his natural capacity attained the legal age of twenty one[25]. By a statute indeed, 28 Hen. VIII. c. 17. power was given to future kings to rescind and revoke all acts of parliament that should be made while they were under the age of twenty four: but this was repealed by the statute 1 Edw. VI. c. 11. so far as related to that prince; and both statutes are declared to be determined by 24 Geo. II. c. 24. It hath also been usually thought prudent, when the heir apparent has been very young, to appoint a protector, guardian, or regent, for a limited time: but the very necessity of such extraordinary provision is sufficient to demonstrate the truth of that maxim of the common law, that in the king is no minority; and therefore he hath no legal guardian[26].
III. A third attribute of the king’s majesty is his perpetuity. The law ascribes to him, in his political capacity, an absolute immortality. The king never dies. Henry, Edward, or George may die; but the king survives them all. For immediately upon the decease of the reigning prince in his natural capacity, his kingship or imperial dignity, by act of law, without any interregnum or interval, is vested at once in his heir; who is, eo instanti, king to all intents and purposes. And so tender is the law of supposing even a possibility of his death, that his natural dissolution is generally called his demise; dimissio regis, vel coronae: an expression which signifies merely a transfer of property; for, as is observed in Plowden[27], when we say the demise of the crown, we mean only that in consequence of the disunion of the king’s body natural from his body politic, the kingdom is transferred or demised to his successor; and so the royal dignity remains perpetual. Thus too, when Edward the fourth, in the tenth year of his reign, was driven from his throne for a few months by the house of Lancaster, this temporary transfer of his dignity was denominated his demise; and all process was held to be discontinued, as upon a natural death of the king[28].
We are next to consider those branches of the royal prerogative, which invest this our sovereign lord, thus all-perfect and immortal in his kingly capacity, with a number of authorities and powers; in the exertion whereof consists the executive part of government. This is wisely placed in a single hand by the British constitution, for the sake of unanimity, strength and dispatch. Were it placed in many hands, it would be subject to many wills: many wills, if disunited and drawing different ways, create weakness in a government: and to unite those several wills, and reduce them to one, is a work of more time and delay than the exigencies of state will afford. The king of England is therefore not only the chief, but properly the sole, magistrate of the nation; all others acting by commission from, and in due subordination to him: in like manner as, upon the great revolution in the Roman state, all the powers of the antient magistracy of the commonwealth were concentred in the new emperor; so that, as Gravina[29] expresses it, “in ejus unius persona veteris reipublicae vis atque majestas per cumulatas magistratuum potestates exprimebatur.”
After what has been premised in this chapter, I shall not (I trust) be considered as an advocate for arbitrary power, when I lay it down as a principle, that in the exertion of lawful prerogative, the king is and ought to be absolute; that is, so far absolute, that there is no legal authority that can either delay or resist him. He may reject what bills, may make what treaties, may coin what money, may create what peers, may pardon what offences he pleases: unless where the constitution hath expressly, or by evident consequence, laid down some exception or boundary; declaring, that thus far the prerogative shall go and no farther. For otherwise the power of the crown would indeed be but a name and a shadow, insufficient for the ends of government, if, where it’s jurisdiction is clearly established and allowed, any man or body of men were permitted to disobey it, in the ordinary course of law: I say, in the ordinary course of law; for I do not now speak of those extraordinary recourses to first principles, which are necessary when the contracts of society are in danger of dissolution, and the law proves too weak a defence against the violence of fraud or oppression. And yet the want of attending to this obvious distinction has occasioned these doctrines, of absolute power in the prince and of national resistance by the people, to be much misunderstood and perverted by the advocates for slavery on the one hand, and the demagogues of faction on the other. The former, observing the absolute sovereignty and transcendent dominion of the crown laid down (as it certainly is) most strongly and emphatically in our lawbooks, as well as our homilies, have denied that any case can be excepted from so general and positive a rule; forgetting how impossible it is, in any practical system of laws, to point out beforehand these eccentrical remedies, which the sudden emergence of national distress may dictate, and which that alone can justify. On the other hand, over-zealous republicans, feeling the absurdity of unlimited passive obedience, have fancifully (or sometimes factiously) gone over to the other extreme: and, because resistance is justifiable to the person of the prince when the being of the state is endangered, and the public voice proclaims such resistance necessary, they have therefore allowed to every individual the right of determining this expedience, and of employing private force to resist even private oppression. A doctrine productive of anarchy, and (in consequence) equally fatal to civil liberty as tyranny itself. For civil liberty, rightly understood, consists in protecting the rights of individuals by the united force of society: society cannot be maintained, and of course can exert no protection, without obedience to some sovereign power: and obedience is an empty name, if every individual has a right to decide how far he himself shall obey.
In the exertion therefore of those prerogatives, which the law has given him, the king is irresistible and absolute, according to the forms of the constitution. And yet, if the consequence of that exertion be manifestly to the grievance or dishonour of the kingdom, the parliament will call his advisers to a just and severe account. For prerogative consisting (as Mr Locke[30] has well defined it) in the discretionary power of acting for the public good, where the positive laws are silent, if that discretionary power be abused to the public detriment, such prerogative is exerted in an unconstitutional manner. Thus the king may make a treaty with a foreign state, which shall irrevocably bind the nation; and yet, when such treaties have been judged pernicious, impeachments have pursued those ministers, by whose agency or advice they were concluded.
The prerogatives of the crown (in the sense under which we are now considering them) respect either this nation’s intercourse with foreign nations, or it’s own domestic government and civil polity.
With regard to foreign concerns, the king is the delegate or representative of his people. It is impossible that the individuals of a state, in their collective capacity, can transact the affairs of that state with another community equally numerous as themselves. Unanimity must be wanting to their measures, and strength to the execution of their counsels. In the king therefore, as in a center, all the rays of his people are united, and form by that union a consistency, splendor, and power, that make him feared and respected by foreign potentates; who would scruple to enter into any engagement, that must afterwards be revised and ratified by a popular assembly. What is done by the royal authority, with regard to foreign powers, is the act of the whole nation: what is done without the king’s concurrence is the act only of private men. And so far is this point carried by our law, that it hath been held[31], that should all the subjects of England make war with a king in league with the king of England, without the royal assent, such war is no breach of the league. And, by the statute 2 Hen. V. c. 6. any subject committing acts of hostility upon any nation in league with the king, was declared to be guilty of high treason: and, though that act was repealed by the statute 20 Hen. VI. c. 11. so far as relates to the making this offence high treason, yet still it remains a very great offence against the law of nations, and punishable by our laws, either capitally or otherwise, according to the circumstances of the case.
I. The king therefore, considered as the representative of his people, has the sole power of sending embassadors to foreign states, and receiving embassadors at home. This may lead us into a short enquiry, how far the municipal laws of England intermeddle with or protect the rights of these messengers from one potentate to another, whom we call embassadors.
The rights, the powers, the duties, and the privileges of embassadors are determined by the law of nature and nations, and not by any municipal constitutions. For, as they represent the persons of their respective masters, who owe no subjection to any laws but those of their own country, their actions are not subject to the control of the private law of that state, wherein they are appointed to reside. He that is subject to the coercion of laws is necessarily dependent on that power by whom those laws were made: but an embassador ought to be independent of every power, except that by which he is sent; and of consequence ought not to be subject to the mere municipal laws of that nation, wherein he is to exercise his functions. If he grossly offends, or makes an ill use of his character, he may be sent home and accused before his master[32]; who is bound either to do justice upon him, or avow himself the accomplice of his crimes[33]. But there is great dispute among the writers on the laws of nations, whether this exemption of embassadors extends to all crimes, as well natural as positive; or whether it only extends to such as are mala prohibita, as coining, and not to those that are mala in se, as murder[34]. Our law seems to have formerly taken in the restriction, as well as the general exemption. For it has been held, both by our common lawyers and civilians[35], that an embassador is privileged by the law of nature and nations; and yet, if he commits any offence against the law of reason and nature, he shall lose his privilege[36]: and that therefore, if an embassador conspires the death of the king in whose land he is, he may be condemned and executed for treason; but if he commits any other species of treason, it is otherwise, and he must be sent to his own kingdom[37]. And these positions seem to be built upon good appearance of reason. For since, as we have formerly shewn, all municipal laws act in subordination to the primary law of nature, and, where they annex a punishment to natural crimes, are only declaratory of and auxiliary to that law; therefore to this natural, universal rule of justice embassadors, as well as other men, are subject in all countries; and of consequence it is reasonable that, wherever they transgress it, there they shall be liable to make atonement[38]. But, however these principles might formerly obtain, the general practice of this country, as well as of the rest of Europe, seems now to pursue the sentiments of the learned Grotius, that the security of embassadors is of more importance than the punishment of a particular crime[39]. And therefore few, if any, examples have happened within a century past, where an embassador has been punished for any offence, however atrocious in it’s nature.
In respect to civil suits, all the foreign jurists agree, that neither an embassador, nor any of his train or comites, can be prosecuted for any debt or contract in the courts of that kingdom wherein he is sent to reside. Yet sir Edward Coke maintains, that, if an embassador make a contract which is good jure gentium, he shall answer for it here[40]. But the truth is, so few cases (if any) had arisen, wherein the privilege was either claimed or disputed, even with regard to civil suits, that our law-books are silent upon it, previous to the reign of queen Anne; when an embassador from Peter the great, czar of Muscovy, was actually arrested and taken out of his coach in London[41], for a debt of fifty pounds, which he had there contracted. Instead of applying to be discharged upon his privilege, he gave bail to the action, and the next day complained to the queen. The persons who were concerned in the arrest were examined before the privy council (of which the lord chief justice Holt was at the same time sworn a member[42]) and seventeen were committed to prison[43]: most of whom were prosecuted by information in the court of queen’s bench, at the suit of the attorney general[44], and at their trial before the lord chief justice were convicted of the facts by the jury[45]; reserving the question of law, how far those facts were criminal, to be afterwards argued before the judges; which question was never determined. In the mean time the czar resented this affront very highly, and demanded that the sheriff of Middlesex and all others concerned in the arrest should be punished with instant death[46]. But the queen (to the amazement of that despotic court) directed her secretary to inform him, “that she could inflict no punishment upon any, the meanest, of her subjects unless warranted by the law of the land, and therefore was persuaded that he would not insist upon impossibilities[47].” To satisfy however the clamours of the foreign ministers (who made it a common cause) as well as to appease the wrath of Peter, a bill was brought into parliament[48], and afterwards passed into a law[49], to prevent and to punish such outrageous insolence for the future. And with a copy of this act, elegantly engrossed and illuminated, accompanied by a letter from the queen, an embassador extraordinary[50] was commissioned to appear at Moscow[51], who declared, “that though her majesty could not inflict such a punishment as was required, because of the defect in that particular of the former established constitutions of her kingdom, yet, with the unanimous consent of the parliament, she had caused a new act to be passed, to serve as a law for the future.” This humiliating step was accepted as a full satisfaction by the czar; and the offenders, at his request, were discharged from all farther prosecution.
This statute[52] recites the arrest which had been made, “in contempt of the protection granted by her majesty, contrary to the law of nations, and in prejudice of the rights and privileges, which embassadors and other public ministers have at all times been thereby possessed of, and ought to be kept sacred and inviolable:” wherefore it enacts, that for the future all process whereby the person of any embassador, or of his domestic or domestic servant, may be arrested, or his goods distreined or seised, shall be utterly null and void; and the persons prosecuting, soliciting, or executing such process shall be deemed violaters of the law of nations, and disturbers of the public repose; and shall suffer such penalties and corporal punishments as the lord chancellor and the two chief justices, or any two of them, shall think fit. But it is expressly provided, that no trader, within the description of the bankrupt laws, who shall be in the service of any embassador, shall be privileged or protected by this act; nor shall any one be punished for arresting an embassador’s servant, unless his name be registred with the secretary of state, and by him transmitted to the sheriffs of London and Middlesex. Exceptions, that are strictly conformable to the rights of embassadors[53], as observed in the most civilized countries. And, in consequence of this statute, thus declaring and enforcing the law of nations, these privileges are now held to be part of the law of the land, and are constantly allowed in the courts of common law[54].
II. It is also the king’s prerogative to make treaties, leagues, and alliances with foreign states and princes. For it is by the law of nations essential to the goodness of a league, that it be made by the sovereign power[55]; and then it is binding upon the whole community: and in England the sovereign power, quoad hoc, is vested in the person of the king. Whatever contracts therefore he engages in, no other power in the kingdom can legally delay, resist, or annul. And yet, lest this plenitude of authority should be abused to the detriment of the public, the constitution (as was hinted before) hath here interposed a check, by the means of parliamentary impeachment, for the punishment of such ministers as from criminal motives advise or conclude any treaty, which shall afterwards be judged to derogate from the honour and interest of the nation.
III. Upon the same principle the king has also the sole prerogative of making war and peace. For it is held by all the writers on the law of nature and nations, that the right of making war, which by nature subsisted in every individual, is given up by all private persons that enter into society, and is vested in the sovereign power[56]: and this right is given up not only by individuals, but even by the intire body of people, that are under the dominion of a sovereign. It would indeed be extremely improper, that any number of subjects should have the power of binding the supreme magistrate, and putting him against his will in a state of war. Whatever hostilities therefore may be committed by private citizens, the state ought not to be affected thereby; unless that should justify their proceedings, and thereby become partner in the guilt. Such unauthorized voluntiers in violence are not ranked among open enemies, but are treated like pirates and robbers: according to that rule of the civil law[57]; hostes hi sunt qui nobis, aut quibus nos, publice bellum decrevimus: caeteri latrones aut praedones sunt. And the reason which is given by Grotius[58], why according to the law of nations a denunciation of war ought always to precede the actual commencement of hostilities, is not so much that the enemy may be put upon his guard, (which is matter rather of magnanimity than right) but that it may be certainly clear that the war is not undertaken by private persons, but by the will of the whole community; whose right of willing is in this case transferred to the supreme magistrate by the fundamental laws of society. So that, in order to make a war completely effectual, it is necessary with us in England that it be publicly declared and duly proclaimed by the king’s authority; and, then, all parts of both the contending nations, from the highest to the lowest, are bound by it. And wherever the right resides of beginning a national war, there also must reside the right of ending it, or the power of making peace. And the same check of parliamentary impeachment, for improper or inglorious conduct, in beginning, conducting, or concluding a national war, is in general sufficient to restrain the ministers of the crown from a wanton or injurious exertion of this great prerogative.
IV. But, as the delay of making war may sometimes be detrimental to individuals who have suffered by depredations from foreign potentates, our laws have in some respect armed the subject with powers to impel the prerogative; by directing the ministers of the crown to issue letters of marque and reprisal upon due demand: the prerogative of granting which is nearly related to, and plainly derived from, that other of making war; this being indeed only an incomplete state of hostilities, and generally ending in a formal denunciation of war. These letters are grantable by the law of nations[59], whenever the subjects of one state are oppressed and injured by those of another; and justice is denied by that state to which the oppressor belongs. In this case letters of marque and reprisal (words in themselves synonymous and signifying a taking in return) may be obtained, in order to seise the bodies or goods of the subjects of the offending state, until satisfaction be made, wherever they happen to be found. And indeed this custom of reprisals seems dictated by nature herself; for which reason we find in the most antient times very notable instances of it[60]. But here the necessity is obvious of calling in the sovereign power, to determine when reprisals may be made; else every private sufferer would be a judge in his own cause. In pursuance of which principle, it is with us declared by the statute 4 Hen. V. c. 7. that, if any subjects of the realm are oppressed in time of truce by any foreigners, the king will grant marque in due form, to all that feel themselves grieved. Which form is thus directed to be observed: the sufferer must first apply to the lord privy-seal, and he shall make out letters of request under the privy seal; and, if, after such request of satisfaction made, the party required do not within convenient time make due satisfaction or restitution to the party grieved, the lord chancellor shall make him out letters of marque under the great seal; and by virtue of these he may attack and seise the property of the aggressor nation, without hazard of being condemned as a robber or pirate.
V. Upon exactly the same reason stands the prerogative of granting safe-conducts, without which by the law of nations no member of one society has a right to intrude into another. And therefore Puffendorf very justly resolves[61], that it is left in the power of all states, to take such measures about the admission of strangers, as they think convenient; those being ever excepted who are driven on the coasts by necessity, or by any cause that deserves pity or compassion. Great tenderness is shewn by our laws, not only to foreigners in distress (as will appear when we come to speak of shipwrecks) but with regard also to the admission of strangers who come spontaneously. For so long as their nation continues at peace with ours, and they themselves behave peaceably, they are under the king’s protection; though liable to be sent home whenever the king sees occasion. But no subject of a nation at war with us can, by the law of nations, come into the realm, nor can travel himself upon the high seas, or send his goods and merchandize from one place to another, without danger of being seised by our subjects, unless he has letters of safe-conduct; which by divers antient statutes[62] must be granted under the king’s great seal and inrolled in chancery, or else are of no effect: the king being supposed the best judge of such emergencies, as may deserve exception from the general law of arms. But passports under the king’s sign-manual, or licences from his embassadors abroad, are now more usually obtained, and are allowed to be of equal validity.
Indeed the law of England, as a commercial country, pays a very particular regard to foreign merchants in innumerable instances. One I cannot omit to mention: that by magna carta[63] it is provided, that all merchants (unless publicly prohibited beforehand) shall have safe conduct to depart from, to come into, to tarry in, and to go through England, for the exercise of merchandize, without any unreasonable imposts, except in time of war: and, if a war breaks out between us and their country, they shall be attached (if in England) without harm of body or goods, till the king or his chief justiciary be informed how our merchants are treated in the land with which we are at war; and, if ours be secure in that land, they shall be secure in ours. This seems to have been a common rule of equity among all the northern nations; for we learn from Stiernhook[64], that it was a maxim among the Goths and Swedes, “quam legem exteri nobis posuere, eandem illis ponemus.” But it is somewhat extraordinary, that it should have found a place in magna carta, a mere interior treaty between the king and his natural-born subjects; which occasions the learned Montesquieu to remark with a degree of admiration, “that the English have made the protection of foreign merchants one of the articles of their national liberty[65].” But indeed it well justifies another observation which he has made[66], “that the English know better than any other people upon earth, how to value at the same time these three great advantages, religion, liberty, and commerce.” Very different from the genius of the Roman people; who in their manners, their constitution, and even in their laws, treated commerce as a dishonorable employment, and prohibited the exercise thereof to persons of birth, or rank, or fortune[67]: and equally different from the bigotry of the canonists, who looked on trade as inconsistent with christianity[68], and determined at the council of Melfi, under pope Urban II, A. D. 1090, that it was impossible with a safe conscience to exercise any traffic, or follow the profession of the law[69].
These are the principal prerogatives of the king, respecting this nation’s intercourse with foreign nations; in all of which he is considered as the delegate or representative of his people. But in domestic affairs he is considered in a great variety of characters, and from thence there arises an abundant number of other prerogatives.
I. First, he is a constituent part of the supreme legislative power; and, as such, has the prerogative of rejecting such provisions in parliament, as he judges improper to be passed. The expediency of which constitution has before been evinced at large[70]. I shall only farther remark, that the king is not bound by any act of parliament, unless he be named therein by special and particular words. The most general words that can be devised (“any person or persons, bodies politic, or corporate, &c.”) affect not him in the least, if they may tend to restrain or diminish any of his rights or interests[71]. For it would be of most mischievous consequence to the public, if the strength of the executive power were liable to be curtailed without it’s own express consent, by constructions and implications of the subject. Yet where an act of parliament is expressly made for the preservation of public rights and the suppression of public wrongs, and does not interfere with the established rights of the crown, it is laid to be binding as well upon the king as upon the subject[72]: and, likewise, the king may take the benefit of any particular act, though he be not especially named[73].
II. The king is considered, in the next place, as the generalissimo, or the first in military command, within the kingdom. The great end of society is to protect the weakness of individuals by the united strength of the community: and the principal use of government is to direct that united strength in the best and most effectual manner, to answer the end proposed. Monarchical government is allowed to be the fittest of any for this purpose: it follows therefore, from the very end of it’s institution, that in a monarchy the military power must be trusted in the hands of the prince.
In this capacity therefore, of general of the kingdom, the king has the sole power of raising and regulating fleets and armies. Of the manner in which they are raised and regulated I shall speak more, when I come to consider the military state. We are now only to consider the prerogative of enlisting and of governing them: which indeed was disputed and claimed, contrary to all reason and precedent, by the long parliament of king Charles I; but, upon the restoration of his son, was solemnly declared by the statute 13 Car. II. c. 6. to be in the king alone: for that the sole supreme government and command of the militia within all his majesty’s realms and dominions, and of all forces by sea and land, and of all forts and places of strength, ever was and is the undoubted right of his majesty, and his royal predecessors, kings and queens of England; and that both or either house of parliament cannot, nor ought to, pretend to the same.
This statute, it is obvious to observe, extends not only to fleets and armies, but also to forts, and other places of strength, within the realm; the sole prerogative, as well of erecting, as manning and governing of which, belongs to the king in his capacity of general of the kingdom[74]: and all lands were formerly subject to a tax, for building of castles wherever the king thought proper. This was one of the three things, from contributing to the performance of which no lands were exempted; and therefore called by our Saxon ancestors the trinoda necessitas: sc. pontis reparatio, arcis constructio, et expeditio contra hostem[75]. And this they were called upon to do so often, that, as sir Edward Coke from M. Paris assures us[76], there were in the time of Henry II 1115 castles subsisting in England. The inconvenience of which, when granted out to private subjects, the lordly barons of those times, was severely felt by the whole kingdom; for, as William of Newbridge remarks in the reign of king Stephen, “erant in Anglia quodammodo tot reges vet potius tyranni, quot domini castellorum:” but it was felt by none more sensibly than by two succeeding princes, king John and king Henry III. And therefore, the greatest part of them being demolished in the barons’ wars, the kings of after times have been very cautious of suffering them to be rebuilt in a fortified manner: and sir Edward Coke lays it down[77], that no subject can build a castle, or house of strength imbatteled, or other fortress defensible, without the licence of the king; for the danger which might ensue, if every man at his pleasure might do it.
It is partly upon the same, and partly upon a fiscal foundation, to secure his marine revenue, that the king has the prerogative of appointing ports and havens, or such places only, for persons and merchandize to pass into and out of the realm, as he in his wisdom sees proper. By the feodal law all navigable rivers and havens were computed among the regalia[78], and were subject to the sovereign of the state. And in England it hath always been held, that the king is lord of the whole shore[79], and particularly is the guardian of the ports and havens, which are the inlets and gates of the realm[80]: and therefore, so early as the reign of king John, we find ships seised by the king’s officers for putting in at a place that was not a legal port[81]. These legal ports were undoubtedly at first assigned by the crown; since to each of them a court of portmote is incident[82], the jurisdiction of which must flow from the royal authority: the great ports of the see are also referred to, as well known and established, by statute 4 Hen. IV. c. 20. which prohibits the landing elsewhere under pain of confiscation: and the statute 1 Eliz. c. 11. recites that the franchise of lading and discharging had been frequently granted by the crown.
But though the king had a power of granting the franchise of havens and ports, yet he had not the power of resumption, or of narrowing and confining their limits when once established; but any person had a right to load or discharge his merchandize in any part of the haven: whereby the revenue of the customs was much impaired and diminished, by fraudulent landings in obscure and private corners. This occasioned the statutes of 1 Eliz. c. 11. and 13 & 14. Car. II. c. 11. §. 14. which enable the crown by commission to ascertain the limits of all ports, and to assign proper wharfs and quays in each port, for the exclusive landing and loading of merchandize.
The erection of beacons, light-houses, and sea-marks, is also a branch of the royal prerogative: whereof the first was antiently used in order to alarm the country, in case of the approach of an enemy; and all of them are signally useful in guiding and preserving vessels at sea by night as well as by day. For this purpose the king hath the exclusive power, by commission under his great seal[83], to cause them to be erected in fit and convenient places[84], as well upon the lands of the subject as upon the demesnes of the crown: which power is usually vested by letters patent in the office of lord high admiral[85]. And by statute 8 Eliz. c. 13. the corporation of the trinity-house are impowered to set up any beacons or sea-marks wherever they shall think them necessary; and if the owner of the land or any other person shall destroy them, or shall take down any steeple, tree, or other known sea-mark, he shall forfeit 100𝑙. or, in case of inability to pay it, shall be ipso facto outlawed.
To this branch of the prerogative may also be referred the power vested in his majesty, by statutes 12 Car. II. c. 4. and 29 Geo. II. c. 16. of prohibiting the exportation of arms or ammunition out of this kingdom, under severe penalties: and likewise the right which the king has, whenever he sees proper, of confining his subjects to stay within the realm, or of recalling them when beyond the seas. By the common law[86], every man may go out of the realm for whatever cause he pleaseth, without obtaining the king’s leave; provided he is under no injunction of staying at home: (which liberty was expressly declared in king John’s great charter, though left out in that of Henry III) but, because that every man ought of right to defend the king and his realm, therefore the king at his pleasure may command him by his writ that he go not beyond the seas, or out of the realm, without licence; and if he do the contrary, he shall be punished for disobeying the king’s command. Some persons there antiently were, that, by reason of their stations, were under a perpetual prohibition of going abroad without licence obtained; among which were reckoned all peers, on account of their being counsellors of the crown; all knights, who were bound to defend the kingdom from invasions; all ecclesiastics, who were expressly confined by cap. 4. of the constitutions of Clarendon, on account of their attachment in the times of popery to the see of Rome; all archers and other artificers, left they should instruct foreigners to rival us in their several trades and manufactures. This was law in the times of Britton[87], who wrote in the reign of Edward I: and sir Edward Coke[88] gives us many instances to this effect in the time of Edward III. In the succeeding reign the affair of travelling wore a very different aspect: an act of parliament being made[89], forbidding all persons whatever to go abroad without licence, except only the lords and other great men of the realm; and true and notable merchants; and the king’s soldiers. But this act was repealed by the statute 4 Jac. I. c. 1. And at present every body has, or at least assumes, the liberty of going abroad when he pleases. Yet undoubtedly if the king, by writ of ne exeat regnum, under his great seal or privy seal, thinks proper to prohibit him from so doing; or if the king sends a writ to any man, when abroad, commanding his return; and in either case the subject disobeys; it is a high contempt of the king’s prerogative, for which the offender’s lands shall be seised till he return; and then he is liable to fine and imprisonment[90].
III. Another capacity, in which the king is considered in domestic affairs, is as the fountain of justice and general conservator of the peace of the kingdom. By the fountain of justice the law does not mean the author or original, but only the distributor. Justice is not derived from the king, as from his free gift; but he is the steward of the public, to dispense it to whom it is due[91]. He is not the spring, but the reservoir; from whence right and equity are conducted, by a thousand chanels, to every individual. The original power of judicature, by the fundamental principles of society, is lodged in the society at large: but as it would be impracticable to render complete justice to every individual, by the people in their collective capacity, therefore every nation has committed that power to certain select magistrates, who with more ease and expedition can hear and determine complaints; and in England this authority has immemorially been exercised by the king or his substitutes. He therefore has alone the right of erecting courts of judicature: for, though the constitution of the kingdom hath entrusted him with the whole executive power of the laws, it is impossible, as well as improper, that he should personally carry into execution this great and extensive trust: it is consequently necessary, that courts should be ercted, to assist him in executing this power; and equally necessary, that, if erected, they should be erected by his authority. And hence it is, that all jurisdictions of courts are either mediately or immediately derived from the crown, their proceedings run generally in the king’s name, they pass under his seal, and are executed by his officers.
It is probable, and almost certain, that in very early times, before our constitution arrived at it’s full perfection, our kings in person often heard and determined causes between party and party. But at present, by the long and uniform usage of many ages, our kings have delegated their whole judicial power to the judges of their several courts; which are the grand depositary of the fundamental laws of the kingdom, and have gained a known and stated jurisdiction, regulated by certain and established rules, which the crown itself cannot now alter but by act of parliament[92]. And, in order to maintain both the dignity and independence of the judges in the superior courts, it is enacted by the statute 13 W. III. c. 2. that their commissions shall be made (not, as formerly, durante bene placito, but) quamdiu bene se gesserint, and their salaries ascertained and established; but that it may be lawful to remove them on the address of both houses of parliament. And now, by the noble improvements of that law in the statute of 1 Geo. III. c. 23. enacted at the earnest recommendation of the king himself from the throne, the judges are continued in their offices during their good behaviour, notwithstanding any demise of the crown (which was formerly held[93] immediately to vacate their seats) and their full salaries are absolutely secured to them during the continuance of their commissions: his majesty having been pleased to declare, that “he looked upon the independence and uprightness of the judges, as essential to the impartial administration of justice; as one of the best securities of the rights and liberties of his subjects; and as most conducive to the honour of the crown[94].”
In criminal proceedings, or prosecutions for offences, it would still be a higher absurdity, if the king personally sate in judgment; because in regard to these he appears in another capacity, that of prosecutor. All offences are either against the king’s peace, or his crown and dignity; and are so laid in every indictment. For, though in their consequences they generally seem (except in the case of treason and a very few others) to be rather offences against the kingdom than the king; yet, as the public, which is an invisible body, has delegated all it’s power and rights, with regard to the execution of the laws, to one visible magistrate, all affronts to that power, and breaches of those rights, are immediately offences against him, to whom they are so delegated by the public. He is therefore the proper person to prosecute for all public offences and breaches of the peace, being the person injured in the eye of the law. And this notion was carried so far in the old Gothic constitution, (wherein the king was bound by his coronation oath to conserve the peace) that in case of any forcible injury offered to the person of a fellow subject, the offender was accused of a kind of perjury, in having violated the king’s coronation oath; dicebatur fregisse juramentum regis juratum[95]. And hence also arises another branch of the prerogative, that of pardoning offences; for it is reasonable that he only who is injured should have the power of forgiving. Of prosecutions and pardons I shall treat more at large hereafter; and only mention them here, in this cursory manner, to shew the constitutional grounds of this power of the crown, and how regularly connected all the links are in this vast chain of prerogative.
In this distinct and separate existence of the judicial power, in a peculiar body of men, nominated indeed, but not removeable at pleasure, by the crown, consists one main preservative of the public liberty; which cannot subsist long in any state, unless the administration of common justice be in some degree separated both from the legislative and also from the executive power. Were it joined with the legislative, the life, liberty, and property, of the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions, and not by any fundamental principles of law; which, though legislators may depart from, yet judges are bound to observe. Were it joined with the executive, this union might soon be an overballance for the legislative. For which reason, by the statute of 16 Car. I. c. 10. which abolished the court of star chamber, effectual care is taken to remove all judicial power out of the hands of the king’s privy council; who, as then was evident from recent instances, might soon be inclined to pronounce that for law, which was most agreeable to the prince or his officers. Nothing therefore is more to be avoided, in a free constitution, than uniting the provinces of a judge and a minister of state. And indeed, that the absolute power, claimed and exercised in a neighbouring nation, is more tolerable than that of the eastern empires, is in great measure owing to their having vested the judicial power in their parliaments, a body separate and distinct from both the legislative and executive: and, if ever that nation recovers it’s former liberty, it will owe it to the efforts of those assemblies. In Turkey, where every thing is centered in the sultan or his ministers, despotic power is in it’s meridian, and wears a more dreadful aspect.
A consequence of this prerogative is the legal ubiquity of the king. His majesty, in the eye of the law, is always present in all his courts, though he cannot personally distribute justice[96]. His judges are the mirror by which the king’s image is reflected. It is the regal office, and not the royal person, that is always present in court, always ready to undertake prosecutions, or pronounce judgment, for the benefit and protection of the subject. And from this ubiquity it follows, that the king can never be nonsuit[97]; for a nonsuit is the desertion of the suit or action by the non-appearance of the plaintiff in court. For the same reason also, in the forms of legal proceedings, the king is not said to appear by his attorney, as other men do; for he always appears in contemplation of law in his own proper person[98].
From the same original, of the king’s being the fountain of justice, we may also deduce the prerogative of issuing proclamations, which is vested in the king alone. These proclamations have then a binding force, when (as sir Edward Coke observes[99]) they are grounded upon and enforce the laws of the realm. For, though the making of laws is intirely the work of a distinct part, the legislative branch, of the sovereign power, yet the manner, time, and circumstances of putting those laws in execution must frequently be left to the discretion of the executive magistrate. And therefore his constitutions or edicts, concerning these points, which we call proclamations, are binding upon the subject, where they do not either contradict the old laws, or tend to establish new ones; but only enforce the execution of such laws as are already in being, in such manner as the king shall judge necessary. Thus the established law is, that the king may prohibit any of his subjects from leaving the realm: a proclamation therefore forbidding this in general for three weeks, by laying an embargo upon all shipping in time of war[100], will be equally binding as an act of parliament, because founded upon a prior law. A proclamation for disarming papists is also binding, being only in execution of what the legislature has first ordained: but a proclamation for allowing arms to papists, or for disarming any protestant subjects, will not bind; because the first would be to assume a dispensing power, the latter a legislative one; to the vesting of either of which in any single person the laws of England are absolutely strangers. Indeed by the statute 31 Hen. VIII. c. 8. it was enacted, that the king’s proclamations should have the force of acts of parliament: a statute, which was calculated to introduce the most despotic tyranny; and which must have proved fatal to the liberties of this kingdom, had it not been luckily repealed in the minority of his successor, about five years after[101].
IV. The king is likewise the fountain of honour, of office, and of privilege: and this in a different sense from that wherein he is sliled the fountain of justice; for here he is really the parent of them. It is impossible that government can be maintained without a due subordination of rank; that the people may know and distinguish such as are set over them, in order to yield them their due respect and obedience; and also that the officers themselves, being encouraged by emulation and the hopes of superiority, may the better discharge their functions: and the law supposes, that no one can be so good a judge of their several merits and services, as the king himself who employs them. It has therefore intrusted with him the sole power of conferring dignities and honours, in confidence that he will bestow them upon none, but such as deserve them. And therefore all degrees of nobility, of knighthood, arid other titles, are received by immediate grant from the crown: either expressed in writing, by writs or letters patent, as in the creations of peers and baronets; or by corporeal investiture, as in the creation of a simple knight.
From the same principle also arises the prerogative of erecting and disposing of offices: for honours and offices are in their nature convertible and synonymous. All offices under the crown carry in the eye of the law an honour along with them; because they imply a superiority of parts and abilities, being supposed to be always filled with those that are most able to execute them. And, on the other hand, all honours in their original had duties or offices annexed to them: an earl, comes, was the conservator or governor of a county; and a knight, miles, was bound to attend the king in his wars. For the same reason therefore that honours are in the disposal of the king, offices ought to be so likewise; and as the king may create new titles, so may he create new offices: but with this restriction, that he cannot create new offices with new fees annexed to them, nor annex new fees to old offices; for this would be a tax upon the subject, which cannot be imposed but by act of parliament[102]. Wherefore, in 13 Hen. IV, a new office being created by the king’s letters patent for measuring cloths, with a new fee for the same, the letters patent were, on account of the new fee, revoked and declared void in parliament.
Upon the same, or a like reason, the king has also the prerogative of conferring privileges upon private persons. Such as granting place or precedence to any of his subjects, as shall seem good to his royal wisdom[103]: or such as converting aliens, or persons born out of the king’s dominions, into denizens; whereby some very considerable privileges of natural-born subjects are conferred upon them. Such also is the prerogative of erecting corporations; whereby a number of private persons are united and knit together, and enjoy many liberties, powers, and immunities in their politic capacity, which they were utterly incapable of in their natural. Of aliens, denizens, natural-born, and naturalized subjects, I shall speak more largely in a subsequent chapter; as also of corporations at the close of this book of our commentaries. I now only mention them incidentally, in order to remark the king’s prerogative of making them; which is grounded upon this foundation, that the king, having the sole administration of the government in his hands, is the best and the only judge, in what capacities, with what privileges, and under what distinctions, his people are the best qualified to serve, and to act under him. A principle, which was carried so far by the imperial law, that it was determined to be the crime of sacrilege, even to doubt whether the prince had appointed proper officers in the state[104].
V. Another light in which the laws of England consider the king with regard to domestic concerns, is as the arbiter of commerce. By commerce, I at present mean domestic commerce only. It would lead me into too large a field, if I were to attempt to enter upon the nature of foreign trade, it’s privileges, regulations, and restrictions; and would be also quite beside the purpose of these commentaries, which are confined to the laws of England. Whereas no municipal laws can be sufficient to order and determine the very extensive and complicated affairs of traffic and merchandize; neither can they have a proper authority for this purpose. For as these are transactions carried on between subjects of independent states, the municipal laws of one will not be regarded by the other. For which reason the affairs of commerce are regulated by a law of their own, called the law merchant or lex mercatoria, which all nations agree in and take notice of. And in particular it is held to be part of the law of England, which decides the causes of merchants by the general rules which obtain in all commercial countries; and that often even in matters relating to domestic trade, as for instance with regard to the drawing, the acceptance, and the transfer, of inland bills of exchange[105].
With us in England, the king’s prerogative, so far as it relates to mere domestic commerce, will fall principally under the following articles.
First, the establishment of public marts, or places of buying and selling, such as markets and fairs, with the tolls thereunto belonging. These can only be set up by virtue of the king’s grant, or by long and immemorial usage and prescription, which presupposes such a grant[106]. The limitation of these public resorts, to such time and such place as may be most convenient for the neighbourhood, forms a part of economics, or domestic polity; which, considering the kingdom as a large family, and the king as the master of it, he clearly has a right to dispose and order as he pleases.
Secondly, the regulation of weights and measures. These, for the advantage of the public, ought to be universally the same throughout the kingdom; being the general criterions which reduce all things to the same or an equivalent value. But, as weight and measure are things in their nature arbitrary and uncertain, it is therefore expedient that they be reduced to some fixed rule or standard: which standard it is impossible to fix by any written law or oral proclamation; for no man can, by words only, give another an adequate idea of a foot-rule, or a pound-weight. It is therefore necessary to have recourse to some visible, palpable, material standard; by forming a comparison with which, all weights and measures may be reduced to one uniform size: and the prerogative of fixing this standard, our antient law vested in the crown; as in Normandy it belonged to the duke[107]. This standard was originally kept at Winchester: and we find in the laws of king Edgar[108], near a century before the conquest, an injunction that the one measure, which was kept at Winchester, should be observed throughout the realm. Most nations have regulated the standard of measures of length by comparison with the parts of the human body; as the palm, the hand, the span, the foot, the cubit, the ell, (ulna, or arm) the pace, and the fathom. But, as these are of different dimensions in men of different proportions, our antient historians[109] inform us, that a new standard of longitudinal measure was ascertained by king Henry the first; who commanded that the ulna or antient ell, which answers to the modern yard, should be made of the exact length of his own arm. And, one standard of measures of length being gained, all others are easily derived from thence; those of greater length by multiplying, those of less by subdividing, that original standard. Thus, by the statute called compositio ulnarum et perticarum, five yards and an half make a perch; and the yard is subdivided into three feet, and each foot into twelve inches; which inches will be each of the length of three grains of barley. Superficial measures are derived by squaring those of length; and measures of capacity by cubing them. The standard of weights was originally taken from corns of wheat, whence the lowest denomination of weights we have is still called a grain; thirty two of which are directed, by the statute called compositio mensurarum, to compose a penny weight, whereof twenty make an ounce, twelve ounces a pound, and so upwards. And upon these principles the first standards were made; which, being originally so fixed by the crown, their subsequent regulations have been generally made by the king in parliament. Thus, under king Richard I, in his parliament holden at Westminster, A. D. 1197, it was ordained that there shall be only one weight and one measure throughout the kingdom, and that the custody of the assise or standard of weights and measures shall be committed to certain persons in every city and borough[110]; from whence the antient office of the king’s aulnager seems to have been derived, whose duty it was, for a certain fee, to measure all cloths made for sale, till the office was abolished by the statute 11 & 12 W. III. c. 20. In king John’s time this ordinance of king Richard was frequently dispensed with for money[111]; which occasioned a provision to be made for inforcing it, in the great charters of king John and his son[112]. These original standards were called pondus regis[113], and mensura domini regis[114]; and are directed by a variety of subsequent statutes to be kept in the exchequer, and all weights and measures to be made conformable thereto[115]. But, as sir Edward Coke observes[116], though this hath so often by authority of parliament been enacted, yet it could never be effected; so forcible is custom with the multitude.
Thirdly, as money is the medium of commerce, it is the king’s prerogative, as the arbiter of domestic commerce, to give it authority or make it current. Money is an universal medium, or common standard, by comparison with which the value of all merchandize may be ascertained: or it is a sign, which represents the respective values of all commodities. Metals are well calculated for this sign, because they are durable and are capable of many subdivisions: and a precious metal is still better calculated for this purpose, because it is the most portable. A metal is also the most proper for a common measure, because it can easily be reduced to the same standard in all nations: and every particular nation fixes on it it’s own impression, that the weight and standard (wherein consists the intrinsic value) may both be known by inspection only.
As the quantity of precious metals increases, that is, the more of them there is extracted from the mine, this universal medium or common sign will sink in value, and grow less precious. Above a thousand millions of bullion are calculated to have been imported into Europe from America within less than three centuries; and the quantity is daily increasing. The consequence is, that more money must be given now for the same commodity than was given an hundred years ago. And, if any accident was to diminish the quantity of gold and silver, their value would proportionably rise. A horse, that was formerly worth ten pounds, is now perhaps worth twenty; and, by any failure of current specie, the price may be reduced to what it was. Yet is the horse in reality neither dearer not cheaper at one time than another: for, if the metal which constitutes the coin was formerly twice as scarce as at present, the commodity was then as dear at half the price, as now it is at the whole.
The coining of money is in all states the act of the sovereign power; for the reason just mentioned, that it’s value may be known on inspection. And with respect to coinage in general, there are three things to be considered therein; the materials, the impression, and the denomination,
With regard to the materials, sir Edward Coke lays it down[117], that the money of England must either be of gold or silver; and none other was ever issued by the royal authority till 1672, when, copper farthings and half-pence were coined by king Charles the second, and ordered by proclamation to be current in all payments, under the value of six-pence, and not otherwise. But this copper coin is not upon the same footing with the other in many respects, particularly with regard to the offence of counterfeiting it.
As to the impression, the stamping thereof is the unquestionable prerogative of the crown: for, though divers bishops and monasteries had formerly the privilege of coining money, yet, as sir Matthew Hale observes[118], this was usually done by special grant from the king, or by prescription which supposes one; and therefore was derived from, and not in derogation of, the royal prerogative. Besides that they had only the profit of the coinage, and not the power of instituting either the impression or denomination; but had usually the stamp sent them from the exchequer.
The denomination, or the value for which the coin is to pass current, is likewise in the breast of the king; and, if any unusual pieces are coined, that value must be ascertained by proclamation. In order to fix the value, the weight and the fineness of the metal are to be taken into consideration together. When a given weight of gold or silver is of a given fineness, it is then of the true standard, and called sterling metal; a name for which there are various reasons given[119], but none of them entirely satisfactory. And of this sterling metal all the coin of the kingdom must be made, by the statute 25 Edw. III. c. 13. So that the king’s prerogative seemeth not to extend to the debasing or inhancing the value of the coin, below or above the sterling value[120]: though sir Matthew Hale[121] appears to be of another opinion. The king may also, by his proclamation, legitimate foreign coin, and make it current here; declaring at what value it shall be taken in payments[122]. But this, I apprehend, ought to be by comparison with the standard of our own coin; otherwise the consent of parliament will be necessary. There is at present no such legitimated money; Portugal coin being only current by private consent, so that any one who pleases may refuse to take it in payment. The king may also at any time decry, or cry down, any coin of the kingdom, and make it no longer current[123].
VI. The king is, lastly, considered by the laws of England as the head and supreme governor of the national church.
To enter into the reasons upon which this prerogative is founded is matter rather of divinity than of law. I shall therefore only observe that by statute 26 Hen. VIII. c. 1. (reciting that the king’s majesty justly and rightfully is and ought to be the supreme head of the church of England; and so had been recognized by the clergy of this kingdom in their convocation) it is enacted, that the king shall be reputed the only supreme head in earth of the church of England, and shall have, annexed to the imperial crown of this realm, as well the title and stile thereof, as all jurisdictions, authorities, and commodities, to the said dignity of supreme head of the church appertaining. And another statute to the same purport was made, 1 Eliz. c. 1.
In virtue of this authority the king convenes, prorogues, retrains, regulates, and dissolves all ecclesiastical synods or convocations. This was an inherent prerogative of the crown, long before the time of Henry VIII, as appears by the statute 8 Hen. VI. c. 1. and the many authors, both lawyers and historians, vouched by sir Edward Coke[124]. So that the statute 25 Hen. VIII. c. 19. which restrains the convocation from making or putting in execution any canons repugnant to the king’s prerogative, or the laws, customs, and statutes of the realm, was merely declaratory of the old common law[125]: that part of it only being new, which makes the king’s royal assent actually necessary to the validity of every canon. The convocation or ecclesiastical synod, in England, differs considerably in it’s constitution from the synods of other christian kingdoms: those consisting wholly of bishops; whereas with us the convocation is the miniature of a parliament, wherein the archbishop presides with regal state; the upper house of bishops represents the house of lords; and the lower house, composed of representatives of the several dioceses at large, and of each particular chapter therein, resembles the house of commons with it’s knights of the shire and burgesses[126]. This constitution is said to be owing to the policy of Edward I; who thereby at one and the same time let in the inferior clergy to the privilege of forming ecclesiastical canons, (which before they had not) and also introduced a method of taxing ecclesiastical benefices, by consent of convocation[127].
From this prerogative also, of being the head of the church, arises the king’s right of nomination to vacant bishopricks, and certain other ecclesiastical preferments; which will more properly be considered when we come to treat of the clergy. I shall only here observe, that this is now done in consequence of the statute 25 Hen. VIII. c. 20.
As head of the church, the king is likewise the dernier resort in all ecclesiastical causes; an appeal lying ultimately to him in chancery from the sentence of every ecclesiastical judge: which right was restored to the crown by statute 25 Hen. VIII. C. 19. as will more fully be shewn hereafter.
↑ chap. 1. page 141.
↑ Dewes. 479.
↑ Ibid. 645.
↑ King James’s works. 557. 531.
↑ Finch. L. 84, 85.
↑ Bracton. l. 3. tr. 1. c. 9.
↑ Nov. 105. §. 2.
↑ Ff. 32. 1. 23.
↑ Finch. L. 85.
↑ Peregrin. de jure fisc. l. 1. c. 1. num. 9.
↑ l. 1. c. 8.
↑ Seld. tit. of hon. 1. 2.
↑ See also 24 Geo. II. c. 24. 5 Geo. III. c. 27.
↑ Rex allegavit, quod ipse omnes libertates haberet in regno suo, quas imperator vendicabat in imperio. (M. Paris, A. D. 1095.)
↑ Finch. L. 83.
↑ Finch. L. 255.
↑ Law of N. and N. b. 8. c. 10.
↑ on Gov. p. 2. §. 205.
↑ See these points more fully discussed in the considerations on the law of forfeitures, 3d edit. pag. 109–126. wherein the very learned author has thrown many new and important lights on the texture of our happy constitution.
↑ Plowd. 487.
↑ Com. Journ. 18 Nov. 1685.
↑ Ibid. 4 Dec. 1717.
↑ Finch. L. 82. Co. Litt. 90.
↑ Finch. L. 82.
↑ Co. Litt. 43.
↑ The methods of appointing this guardian or regent have been so various, and the duration of his power so uncertain, that from thence alone it may be collected that his office is unknown to the common law; and therefore (as sir Edward Coke says, 4 Inst. 58.) the surest way is to have him made by authority of the great council in parliament. The earl of Pembroke by his own authority, assumed in very troublesome times, the regency of Henry III, who was then only nine years old; but was declared of full age by the pope at seventeen, confirmed the great charter at eighteen, and took upon him the administration of the government at twenty. A guardian and council of regency were named for Edward III, by the parliament which deposed his father; the young king being then fifteen, and not assuming the government till three years after. When Richard II succeeded at the age of eleven, the duke of Lancaster took upon him the management of the kingdom, till the parliament met, which appointed a nominal council to assist him. Henry V on his death-bed named a regent and a guardian for his infant son Henry VI, then nine months old: but the parliament altered his disposition, and appointed a protector and council, with a special limited authority. Both these princes remained in a state of pupillage till the age of twenty three. Edward V, at the age of thirteen, was recommended by his father to the care of the duke of Glocester; who was declared protector by the privy council. The statutes 25 Hen. VIII. c. 12. and 28 Hen. VIII. c. 7. provided, that the successor, if a male and under eighteen, or if a female and under sixteen, should be till such age in the governance of his or her natural mother, (if approved by the king) and such other counsellors as his majesty should by will or otherwise appoint: and he accordingly appointed his sixteen executors to have the government of his son, Edward VI, and the kingdom; which executors elected the earl of Hertford protector. The statute 24 Geo. II. c. 24. in case the crown should descend to any of the children of Frederick late prince of Wales under the age of eighteen, appoints the princess dowager;—and that of 5 Geo. III. c. 27. in case of a like descent to any of his present majesty’s children, empowers the king to name either the queen, the princess dowager, or any descendant of king George II residing in this kingdom;—to be guardian and regent, till the successor attains such age, assisted by a council of regency: the powers of them all being expressly defined and set down in the several acts.
↑ Plowd. 177. 234.
↑ M. 49 Hen. VI. pl. 1–8.
↑ Orig. 1. §. 105.
↑ on Gov. 2. §. 166.
↑ 4 Inst. 152.
↑ As was done with count Gyllenberg the Swedish minister to Great Britain, A. D. 1716.
↑ Sp. L. 26. 21.
↑ Van Laeuwen in Ff. 50. 7. 17. Barbeyrac’s Puff. l. 8. c. 9. §. 9. & 17. Van Bynkershoek de foro legator. c. 17, 18, 19.
↑ 1 Roll. Rep. 175. 3 Bulstr. 27.
↑ 4 Inst. 153.
↑ 1 Roll. Rep. 185.
↑ Foster’s reports. 188.
↑ Securitas legatorum utilitati quae ex poena est praeponderat. de jure b. & p. 18. 4. 4.
↑ 4 Inst. 153.
↑ 21 July 1708. Boyer’s annals of queen Anne.
↑ 25 July 1708. Ibid.
↑ 25, 29 Jul. 1708. Ibid.
↑ 23 Oct. 1708. Ibid.
↑ 14 Feb. 1708. Ibid.
↑ 17 Sept. 1708. Ibid.
↑ 11 Jan. 1708. Ibid. Mod. Un. Hist. xxxv. 454.
↑ Com. Journ. 1708.
↑ 21 Apr. 1709. Boyer, ibid.
↑ Mr Whitworth.
↑ 8 Jan. 1709. Boyer, ibid.
↑ 7 Ann c. 12.
↑ Saepe quaesitum est an comitum numero et jure habendi sunt, qui legatum comitantur, non ut instructior fiat legatitio, sed unice ut lucro suo consulant, institores forte et mercatores. Et, quamvis hos saepe defenderint et comitum loco habere voluerint legati, apparet tamen satis eo non pertinere, qui in legati legationisve officio non sunt. Quum autem ea res nonnunquam turbas dederit, optimo exemplo in quibusdam aulis olim receptum fuit, ut legatus teneretur exhibere nomenclaturam comitum suorum. Van Bynkersh. c. 15. prope finem.
↑ Fitzg. 200. Stra. 797.
↑ Puff. L. of N. b. 8. c. 9. §. 6.
↑ Puff. b. 8. c. 6. §. 8. and Barbeyr. in loc.
↑ Ff. 50. 16. 118.
↑ de jur. b. & p. l. 3. c. 3. § 11.
↑ Ibid. l. 3. c. 2. §. 4 & 5.
↑ See the account given by Nestor, in the eleventh book of the Iliad, of the reprisals made by himself on the Epeian nation; from whom he took a multitude of cattle, as a satisfaftion for a prize won at the Elian games by his father Neleus, and for debts due to many private subjects of the Pylian kingdom: out of which booty the king took three hundred head of cattle for his own demand, and the rest were equitably divided among the other creditors.
↑ Law of N. and N. b. 3. c. 3. §. 9.
↑ 15 Hen. VI. c. 3. 18 Hen. VI. c. 8. 20 Hen. VI. c. 1.
↑ c. 30.
↑ de jure Sueon. l. 3. c. 4.
↑ Sp. L. 20. 13.
↑ Ibid. 20. 6.
↑ Nobiliores natalibus, et honorum luce conspicuos, et patrimonio ditiores, perniciosum urbibus mercimonium exercere prohibemus. C. 4. 63. 3.
↑ Homo mercator vix aut nunquam potest Deo placere: et ideo nullus christianus debet esse mercator; aut si voluerit esse, projiciatur de ecclesia Dei. Decret. I. 88. 11.
↑ Falsa fit poenitentia [laici] cum penitus ab officio curiali vel negotiali non recedit, quae sine peccatis agi ulla ratione non praevalet. Act. Concil. apud Baron, c. 16.
↑ ch. 2. pag. 154.
↑ 11 Rep. 74.
↑ Ibid. 71.
↑ 7 Rep. 32.
↑ 2 Inst. 30.
↑ Cowel’s interpr. tit. castellorum operatio. Seld. Jan. Angl. 1. 42.
↑ 2 Inst. 31.
↑ 1 Inst. 5.
↑ 2 Feud. t. 56. Crag. 1. 15 15.
↑ F. N. B. 113.
↑ Dav. 9. 56.
↑ Madox hist. exch. 530.
↑ 4 Inst. 148.
↑ 3 Inst. 204. 4 Inst. 148.
↑ Rot. Claus. 1 Ric. II. m. 42. Pryn. on 4 Inst. 136.
↑ 1 Sid. 158. 4 Inst. 149.
↑ F. N. B. 85.
↑ c. 123.
↑ 3 Inst. 175.
↑ 5 Ric. II. c. 2.
↑ 1 Hawk. P. C. 22.
↑ Ad hoc autem creatus est et electus, ut justitiam faciat universis. Bract. l. 3. tr. 1. c. 9.
↑ 2 Hawk. P. C. 2.
↑ Lord Raym. 747.
↑ Com. Journ. 3 Mar. 1761.
↑ Stiernh. de jure Goth. l. 3. c. 3. A notion somewhat similar to this may be found in the mirrour. c. 1. §. 5. And so also, when the chief justice Thorpe was condemned to be hanged for bribery, he was said sacramentum domini regis fregisse. Rot. Farl. 25 Edw. III.
↑ Fortesc. c. 8. 2 Inst. 186.
↑ Co. Litt. 139.
↑ Finch. L. 81.
↑ 3 Inst. 162.
↑ 4 Mod. 177. 179.
↑ Stat. 1 Edw. VI. c. 12.
↑ 2 Inst. 533.
↑ 4 Inst. 361.
↑ Disputare de principali judicio non oportet: sacrilegii enim instar est, dubitare an is dignus sit, quem elegerit imperator. C. 9. 29. 3.
↑ Co. Litt. 172. Ld Raym. 181. 1542.
↑ 2 Inst. 220.
↑ Gr. Coustum. c. 16.
↑ cap. 8.
↑ William of Malmsb. in vita Hen. I. Spelm. Hen. I. apud Wilkins. 299.
↑ Hoved. Matth. Paris.
↑ Hoved. A. D. 1201.
↑ 9 Hen. III. c. 25.
↑ Plac. 35 Edw. I. apud Cowel’s Interpr.: tit. pondus regis.
↑ Flet. 2. 12.
↑ 14 Edw. III. st. 1. c. 12. 25 Edw. III. st. 5. c. 10. 16 Ric. II. c. 3. 8 Hen. VI. c. 5. 11 Hen. VI. c. 8. 11 Hen. VII. c. 4. 22 Car. II. c. 8.
↑ 2 Inst. 41.
↑ 2 Inst. 577.
↑ 1 Hist. P. C. 191.
↑ Spelm. Gloss. 203.
↑ 2 Inst. 577.
↑ 1 H. P. C. 194.
↑ Ibid. 197.
↑ Ibid.
↑ 4 Inst. 322, 323.
↑ 12 Rep. 72.
↑ In the diet of Sweden, where the ecclesiastics form one of the branches of the legislature, the chamber of the clergy resembles the convocation of England. It is composed of the bishops and superintendants; and also of deputies, one of which is chosen by every ten parishes or rural deanry. Mod. Un. Hist. xxxiii. 18.
↑ Gilb. hist. of exch. c. 4.
Chapter the eighth.
Of the KING’s REVENUE.
HAVING, in the preceding chapter, considered at large those branches of the king’s prerogative, which contribute to his royal dignity, and constitute the executive power of the government, we proceed now to examine the king’s fiscal prerogatives, or such as regard his revenue; which the British constitution hath vested in the royal person, in order to support his dignity and maintain his power: being a portion which each subject contributes of his property, in order to secure the remainder.
This revenue is either ordinary, or extraordinary. The king’s ordinary revenue is such, as has either subsisted time out of mind in the crown; or else has been granted by parliament, by way of purchase or exchange for such of the king’s inherent hereditary revenues, as were found inconvenient to the subject.
When I say that it has subsisted time out of mind in the crown, I do not mean that the king is at present in the actual possession of the whole of this revenue. Much (nay, the greatest part) of it is at this day in the hands of subjects; to whom it has been granted out from time to time by the kings of England: which has rendered the crown in some measure dependent on the people for it’s ordinary support and subsistence. So that I must be obliged to recount, as part of the royal revenue, what lords of manors and other subjects frequently look upon to be their own absolute rights; because they are and have been vested in them and their ancestors for ages, though in reality originally derived from the grants of our antient princes.
I. The first of the king’s ordinary revenues, which I shall take notice of, is of an ecclesiastical kind; (as are also the three succeeding ones) viz. the custody of the temporalties of bishops; by which are meant all the lay revenues, lands, and tenements (in which is included his barony) which belong to an archbishop’s or bishop’s fee. And these upon the vacancy of the bishoprick are immediately the right of the king, as a consequence of his prerogative in church matters; whereby he is considered as the founder of all archbishopricks and bishopricks, to whom during the vacancy they revert. And for the same reason, before the dissolution of abbeys, the king had the custody of the temporalties of all such abbeys and priories as were of royal foundation (but not of those founded by subjects) on the death of the abbot or prior[1]. Another reason may also be given, why the policy of the law hath vested this custody in the king; because, as the successor is not known, the lands and possessions of the fee would be liable to spoil and devastation, if no one had a property therein. Therefore the law has given the king, not the temporalties themselves, but the custody of the temporalties, till such time as a successor is appointed; with power of taking to himself all the intermediate profits, without any account to the successor; and with the right of presenting (which the crown very frequently exercises) to such benefices and other preferments as fall within the time of vacation[2]. This revenue is of so high a nature, that it could not be granted out to a subject, before, or even after, it accrued: but now by the statute 15 Edw. III. st. 4. c. 4 & 5. the king may, after the vacancy, lease the temporalties to the dean and chapter; saving to himself all advowsons, escheats, and the like. Our antient kings, and particularly William Rufus, were not only remarkable for keeping the bishopricks a long time vacant, for the sake of enjoying the temporalties, but also committed horrible waste on the woods and other parts of the estate; and, to crown all, would never, when the see was filled up, restore to the bishop his temporalties again, unless he purchased them at an exorbitant price. To remedy which, king Henry the first[3] granted a charter at the beginning of his reign, promising neither to sell, nor let to farm, nor take any thing from, the domains of the church, till the successor was installed. And it was made one of the articles of the great charter[4], that no waste should be committed in the temporalties of bishopricks, neither should the custody of them be sold. The same is ordained by the statute of Westminster the first[5]; and the statute 14 Edw. III. st. 4. c. 4. (which permits, as we have seen, a lease to the dean and chapter) is still more explicit in prohibiting the other exactions. It was also a frequent abuse, that the king would for trifling, or no causes, seise the temporalties of bishops, even during their lives, into his own hands: but this is guarded against by statute I Edw. III. st. 2. c. 2.
This revenue of the king, which was formerly very considerable, is now by a customary indulgence almost reduced to nothing: for, at present, as soon as the new bishop is consecrated and confirmed, he usually receives the restitution of his temporalties quite entire, and untouched, from the king; and then, and not sooner, he has a fee-simple in his bishoprick, and may maintain an action for the profits[6].
II. The king is entitled to a corody, as the law calls it, out of every bishoprick: that is, to send one of his chaplains to be maintained by the bishop, or to have a pension allowed him till the bishop promotes him to a benefice[7]. This is also in the nature of an acknowlegement to the king, as founder of the fee; since he had formerly the same corody or pension from every abbey or priory of royal foundation. It is, I apprehend, now fallen into total disuse; though sir Matthew Hale says[8], that it is due of common right, and that no prescription will discharge it.
III. The king also (as was formerly observed[9]) is entitled to all the tithes arising in extraparochial places[10]: though perhaps it may be doubted how far this article, as well as the last, can be properly reckoned a part of the king’s own royal revenue; since a corody supports only his chaplains, and these extraparochial tithes are held under an implied trust, that the king will distribute them for the good of the clergy in general.
IV. The next branch consists in the first-fruits, and tenths, of all spiritual preferments in the kingdom; both of which I shall consider together.
These were originally a part of the papal usurpations over the clergy of this kingdom; first introduced by Pandulph the pope’s legate, during the reigns of king John and Henry the third, in the see of Norwich; and afterwards attempted to be made universal by the popes Clement V and John XXII, about the beginning of the fourteenth century. The first-fruits, primitiae, or annates, were the first year’s whole profits of the spiritual preferment, according to a rate or valor made under the direction of pope Innocent IV by Walter bishop of Norwich in 38 Hen. III, and afterwards advanced in value by commission from pope Nicholas III. A. D. 1292, 20 Edw. I[11]; which valuation of pope Nicholas is still preserved in the exchequer[12]. The tenths, or decimae, were the tenth part of the annual profit of each living by the same valuation; which was also claimed by the holy see, under no better pretence than a strange misapplication of that precept of the Levitical law, which directs[13], “that the Levites should offer the tenth part of their tithe as a heave-offering to the Lord, and give it to Aaron the high priest.” But this claim of the pope met with vigorous resistance from the English parliament; and a variety of acts were passed to prevent and restrain it, particularly the statute 6 Hen. IV. c. 1. which calls it a horrible mischief and damnable custom. But the popish clergy, blindly devoted to the will of a foreign matter, still kept it on foot; sometimes more secretly, sometimes more openly and avowedly: so that, in the reign of Henry VIII, it was computed, that, in the compass of fifty years 800000 ducats had been sent to Rome for first-fruits only. And, as the clergy expressed this willingness to contribute so much of their income to the head of the church, it was thought proper (when in the same reign the papal power was abolished, and the king was declared the head of the church of England) to annex this revenue to the crown; which was done by statute 26 Hen. VIII. c. 3. (confirmed by statute 1 Eliz. c. 4.) and a new valor beneficiorum was then made, by which the clergy are at present rated.
By these lastmentioned statutes all vicarages under ten pounds, a year, and all rectories under ten marks, are discharged from the payment of first-fruits: and if, in such livings as continue chargeable with this payment, the incumbent lives but half a year, he shall pay only one quarter of his first-fruits; if but one whole year, then half of them; if a year and half, three quarters; and if two years, then the whole; and not otherwise. Likewise by the statute 27 Hen. VIII. c. 8. no tenths are to be paid for the first year, for then the first-fruits are due: and by, other statutes of queen Anne, in the fifth and sixth years of her reign, if a benefice be under fifty pounds per annum clear yearly value, it shall be discharged of the payment of first-fruits and tenths.
Thus the richer clergy, being, by the criminal bigotry of their popish predecessors, subjected at first to a foreign exaction, were afterwards, when that yoke was shaken of, liable to a like misapplication of their revenues, through the rapacious disposition of the then reigning monarch: till at length the piety of queen Anne restored to the church what had been thus indirectly taken from it. This she did, not by remitting the tenths and first-fruits entirely; but, in a spirit of the truest equity, by applying these superfluities of the larger benefices to make up the deficiences of the smaller. And to this end she granted her royal charter, which was confirmed by the statute 2 Ann. c. 11. whereby all the revenue of first-fruits and tenths is vested in trustees for ever, to form a perpetual fund for the augmentation of poor livings. This is usually called queen Anne’s bounty; which has been still farther regulated by subsequent statutes, too numerous here to recite.
V. The next branch of the king’s ordinary revenue (which, as well as the subsequent branches, is of a lay or temporal nature) consists in the rents and profits of the demesne lands of the crown. These demesne lands, terrae dominicales regis, being either the share referred to the crown at the original distribution of landed property, or such as came to it afterwards by forfeitures or other means, were antiently very large and extensive; comprizing divers manors, honors, and lordships; the tenants of which had very peculiar privileges, as will be shewn in the second book of these commentaries, when we speak of the tenure in antient demesne. At present they are contracted within a very narrow compass, having been almost entirely granted away to private subjects. This has occasioned the parliament frequently to interpose; and, particularly, after king William III had greatly impoverished the crown, an act passed[14], whereby all future grants or leases from the crown for any longer term than thirty one years or three lives are declared to be void; except with regard to houses, which may be granted for fifty years. And no reversionary lease can be made, so as to exceed, together with the estate in being, the same term of three lives or thirty one years: that is, where there is a subsisting lease, of which there are twenty years still to come, the king cannot grant a future interest, to commence after the expiration of the former, for any longer term than eleven years. The tenant must also be made liable to be punished for committing waste; and the usual rent must be reserved, or, where there has usually been no rent, one third of the clear yearly value[15]. The misfortune is, that this act was made too late, after almost every valuable possession of the crown had been granted away for ever, or else upon very long leases; but may be of benefit to posterity, when those leases come to expire.
VI. Hither might have been referred the advantages which were used to arise to the king from the profits of his military tenures, to which most lands in the kingdom were subject, till the statute 12 Car. II. c. 24. which in great measure abolished them all: the explication of the nature of which tenures must be referred to the second book of these commentaries. Hither also might have been referred the profitable prerogative of purveyance and pre-emption: which was a right enjoyed by the crown of buying up provisions and other necessaries, by the intervention of the king’s purveyors, for the use of his royal houshold, at an appraised valuation, in preference to all others, and even without consent of the owner; and also of forcibly impressing the carriages and horses of the subject, to do the king’s business on the public roads, in the conveyance of timber, baggage, and the like, however inconvenient to the proprietor, upon paying him a settled price. A prerogative, which prevailed pretty generally throughout Europe, during the scarcity of gold and silver, and the high valuation of money consequential thereupon. In those early times the king’s houshold (as well as those of inferior lords) were supported by specific renders of corn, and other victuals, from the tenants of the respective demesnes; and there was also a continual market kept at the palace gate to furnish viands for the royal use[16]. And this answered all purposes, in those ages of simplicity, so long as the king’s court continued in any certain place. But when it removed from one part of the kingdom to another (as was formerly very frequently done) it was found necessary to send purveyors beforehand, to get together a sufficient quantity of provisions and other necessaries for the houshold: and, lest the unusual demand should raise them to an exorbitant price, the powers before-mentioned were vested in these purveyors: who in process of time very greatly abused their authority, and became a great oppression to the subject though of little advantage to the crown; ready money in open market (when the royal residence was more permanent, and specie began to be plenty) being found upon experience to be the best proveditor of any. Wherefore by degrees the powers of purveyance have declined, in foreign countries as well as our own; and particularly were abolished in Sweden by Gustavus Adolphus, towards the beginning of the last century[17]. And, with us in England, having fallen into disuse during the suspension of monarchy, king Charles at his restoration consented, by the same statute, to resign intirely these branches of his revenue and power: and the parliament, in part of recompense, settled on him, his heirs, and successors, for ever, the hereditary excise of fifteen pence per barrel on all beer and ale sold in the kingdom, and a proportionable sum for certain other liquors. So that this hereditary excise, the nature of which shall be farther explained in the subsequent part of this chapter, now forms the sixth branch of his majesty’s ordinary revenue.
VII. A seventh branch might also be computed to have arisen from wine licences; or the rents payble to the crown by such persons as are licensed to sell wine by retale throughout England, except in a few privileged places. These were first settled on the crown by the statute 12 Car. II. c. 25. and, together with the hereditary excise, made up the equivalent in value for the loss sustained by the prerogative in the abolition of the military tenures, and the right of pre-emption and purveyance: but this revenue was abolished by the statute 30 Geo. II. c. 19. and an annual sum of upwards of 7000𝑙. per annum, issuing out of the new stamp duties imposed on wine licences, was settled on the crown in it’s stead.
VIII. An eighth branch of the king’s ordinary revenue is usually reckoned to consist in the profits arising from his forests. Forests are waste grounds belonging to the king, replenished with all manner of beasts of chase or venary; which are under the king’s protection, for the sake of his royal recreation and delight: and, to that end, and for preservation of the king’s game, there are particular laws, privileges, courts and officers belonging to the king’s forests; all which will be, in their turns, explained in the subsequent books of these commentaries. What we are now to consider are only the profits arising to the king from hence; which consist principally in amercements or fines levied for offences against the forest-laws. But as few, if any, courts of this kind for levying amercements[18] have been held since 1632, 8 Car. I. and as, from the accounts given of the proceedings in that court by our histories and law books[19], nobody would now wish to see them again revived, it is needless (at least in this place) to pursue this enquiry any farther.
IX. The profits arising from the king’s ordinary courts of justice make a ninth branch of his revenue. And these consist not only in sines imposed upon offenders, forfeitures of recognizances, and amercements levied upon defaulters; but also in certain fees due to the crown in a variety of legal matters, as, for setting the great seal to charters, original writs, and other forenfic proceedings, and for permitting fines to be levied of lands in order to bar entails, or otherwise to insure their title. As none of these can be done without the immediate intervention of the king, by himself or his officers, the law allows him certain perquisites and profits, as a recompense for the trouble he undertakes for the public. These, in process of time, have been almost all granted out to private persons, or else appropriated to certain particular uses: so that, though our law-proceedings are still loaded with their payment, very little of them is now returned into the king’s exchequer; for a part of whose royal maintenance they were originally intended. All future grants of them however, by the statute 1 Ann. st. 2. c. 7. are to endure for no longer time than the prince’s life who grants them.
X. A tenth branch of the king’s ordinary revenue, said to be grounded on the consideration of his guarding and protecting the seas from pirates and robbers, is the right to royal fish, which are whale and sturgeon: and these, when either thrown ashore, or caught near the coasts, are the property of the king, on account[20] of their superior excellence. Indeed our ancestors seem to have entertained a very high notion of the importance of this right; it being the prerogative of the kings of Denmark and the dukes of Normandy[21]; and from one of these it was probably derived to our princes. It is expressly claimed and allowed in the statute de praerogativa regis[22]: and the most antient treatises of law now extant make mention of it[23]; though they seem to have made a distinction between whale and sturgeon, as was incidentally observed in a former chapter[24].
XI. Another maritime revenue, and founded partly upon the same reason, is that of shipwrecks; which are also declared to be the king’s property by the same prerogative statute 17 Edw. II. c. 11. and were so, long before, at the common law. It is worthy observation, how greatly the law of wrecks has been altered, and the rigour of it gradually softened, in favour of the distressed proprietors. Wreck, by the antient common law, was where any ship was lost at sea, and the goods or cargo were thrown upon the land; in which case these goods, so wrecked, were adjudged to belong to the king: for it was held, that, by the loss of the ship, all property was gone out of the original owner[25]. But this was undoubtedly adding sorrow to sorrow, and was consonant neither to reason nor humanity. Wherefore it was first ordained by king Henry I, that if any person escaped alive out of the ship it should be no wreck[26]; and afterwards king Henry II, by his charter[27], declared, that if on the coasts of either England, Poictou, Oleron, or Gascony, any ship should be distressed, and either man or beast should escape or be found therein alive, the goods should remain to the owners, if they claimed them within three months; but otherwise should be esteemed a wreck, and should belong to the king, or other lord of the franchise. This was again confirmed with improvements by king Richard the first; who, in the second year of his reign[28], not only established these concessions, by ordaining that the owner, if he was shipwrecked and escaped, “omnes res suas liberas et quietas haberet,” but also, that, if he perished, his children, or in default of them his brethren and sisters, should retain the property; and, in default of brother or sister, then the goods should remain to the king[29]. And the law, so long after as the reign of Henry III, seems still to have been guided by the same equitable provisions. For then if a dog (for instance) escaped, by which the owner might be discovered, or if any certain mark were set on the goods, by which they might be known again, it was held to be no wreck[30]. And this is certainly most agreeable to reason; the rational claim of the king being only founded upon this, that the true owner cannot be ascertained. But afterwards, in the statute of Westminster the first[31], the law is laid down more agreeable to the charter of king Henry the second: and upon that statute hath stood the legal doctrine of wrecks to the present time. It enacts, that if any live thing escape (a man, a cat, or a dog; which, as in Bracton, are only put for examples[32],) in this case, and, as it seems, in this case only, it is clearly not a legal wreck: but the sheriff of the county is bound to keep the goods a year and a day (as in France for one year, agreeably to the maritime laws of Oleron[33], and in Holland for a year and an half) that if any man can prove a property in them, either in his own right or by right of representation[34], they shall be restored to him without delay; but, if no such property be proved within that time, they then shall be the king’s. If the goods are of a perishable nature, the sheriff may sell them, and the money shall be liable in their stead[35]. This revenue of wrecks is frequently granted out to lords of manors, as a royal franchise; and if any one be thus entitled to wrecks in his own land, and the king’s goods are wrecked thereon, the king may claim them at any time, even after the year and day[36].
It is to be observed, that, in order to constitute a legal wreck, the goods must come to land. If they continue at sea, the law distinguishes them by the barbarous and uncouth appellations of jetsam, flotsam, and ligan. Jetsam is where goods are cast into the sea, and there sink and remain under water: flotsam is where they continue swimming on the surface of the waves: ligan is where they are sunk in the sea, but tied to a cork or buoy, in order to be found again[37]. These are also the king’s, if no owner appears to claim them; but, if any owner appears, he is entitled to recover the possession. For even if they be cast overboard, without any mark or buoy, in order to lighten the ship, the owner is not by this act of necessity construed to have renounced his property[38]: much less can things ligan be supposed to be abandoned, since the owner has done all in his power, to assert and retain his property. These three are therefore accounted so far a distinct thing from the former, that by the king’s grant to a man of wrecks, things jetsam, flotsam, and ligan will not pass[39].
Wrecks, in their legal acceptation, are at present not very frequent: it rarely happening that every living creature on board perishes; and if any should survive, it is a very great chance, since the improvement of commerce, navigation, and correspondence, but the owner will be able to assert his property within the year and day limited by law. And in order to preserve this property entire for him, and if possible to prevent wrecks at all, our laws have made many very humane regulations; in a spirit quite opposite to those savage laws, which formerly prevailed in all the northern regions of Europe, and a few years ago were still said to subsist on the coasts of the Baltic sea, permitting the inhabitants to seize on whatever they could get as a lawful prize; or, as an author of their own expresses it, “in naufragorum miseria et calamitate tanquam vultures ad praedam currere[40].” For by the statute 2 Edw. III. c. 13. if any ship be lost on the more, and the goods come to land (so as it be not legal wreck) they shall be presently delivered to the merchants, they paying only a reasonable reward to those that saved and preserved them, which is intitled salvage. Also by the common law, if any persons (other than the sheriff) take any goods so cast on more, which are not legal wreck, the owners might have a commission to enquire and find them out, and compel them to make restitution[41]. And by statute 12 Ann. st. 2. c. 18. confirmed by 4 Geo. I. c. 12. in order to assist the distressed, and prevent the scandalous illegal practices on some of our sea coasts, (too similar to those on the Baltic) it is enacted, that all head-officers and others of towns near the sea shall, upon application made to them, summon as many hands as are necessary, and send them to the relief of any ship in distress, on forfeiture of 100𝑙. and, in case of assistance given, salvage shall be paid by the owners, to be assessed by three neighbouring justices. All persons that secrete any goods shall forfeit their treble value: and if they wilfully do any act whereby the ship is lost or destroyed, by making holes in her, stealing her pumps, or otherwise, they are guilty of felony, without benefit of clergy. Lastly, by the statute 26 Geo. II. c. 19. plundering any vessel either in distress, or wrecked, and whether any living creature be on board or not, (for, whether wreck or otherwise, it is clearly not the property of the populace) such plundering, I say, or preventing the escape of any person that endeavors to save his life, or wounding him with intent to destroy him, or putting out false lights in order to bring any vessel into danger, are all declared to be capital felonies; in like manner as the destroying trees, steeples, or other stated seamarks, is punished by the statute 8 Eliz, c. 13. with a forfeiture of 100𝑙. or outlawry. Moreover, by the statute of George II, pilfering any goods cast ashore is declared to be petty larceny; and many other salutary regulations are made, for the more effectually preserving ships of any nation in distress[42].
XII. A twelfth branch of the royal revenue, the right to mines, has it’s original from the king’s prerogative of coinage, in order to supply him with materials: and therefore those mines, which are properly royal, and to which the king is entitled when found, are only those of silver and gold[43]. By the old common law, if gold or silver be found in mines of base metal, according to the opinion of some the whole was a royal mine, and belonged to the king; though others held that it only did so, if the quantity of gold or silver was of greater value than the quantity of bafe metal[44]. But now by the statutes 1 W. & M. st. 1. c. 30. and 5 W. & M. c. 6. this difference is made immaterial; it being enacted, that no mines of copper, tin, iron, or lead, shall be looked upon as royal mines, notwithstanding gold or silver may be extracted from them in any quantities: but that the king, or persons claiming royal mines under his authority, may have the ore, (other than tin-ore in the counties of Devon and Cornwall) paying for the same a price stated in the act. This was an extremely reasonable law: for now private owners are not discouraged from working mines, through a fear that they may be claimed as royal ones; neither does the king depart from the just rights of his revenue, since he may have all the precious metal contained in the ore, paying no more for it than the value of the base metal which it is supposed to be; to which base metal the land-owner is by reason and law entitled.
XIII. To the same original may in part be referred the revenue of treasure-trove (derived from the French word, trover, to find) called in Latin thesaurus inventus, which is where any money or coin, gold, silver, plate, or bullion, is found hidden in the earth, or other private place, the owner thereof being unknown; in which case the treasure belongs to the king: but if he that hid it be known, or afterwards found out, the owner and not the king is entitled to it[45]. Also if it be found in the sea, or upon the earth, it doth not belong to the king, but the finder, if no owner appears[46]. So that it seems it is the hiding, not the abandoning of it, that gives the king a property: Bracton[47] defining it, in the words of the civilians, to be “vetus depositio pecuniae.” This difference clearly arises from the different intentions, which the law implies in the owner. A man, that hides his treasure in a secret place, evidently does not mean to relinquish his property; but reserves a right of claiming it again, when he sees occasion; and, if he dies and the secret also dies with him, the law gives it the king, in part of his royal revenue. But a man that scatters his treasure into the sea, or upon the public surface of the earth, is construed to have absolutely abandoned his property, and returned it into the common stock, without any intention of reclaiming it; and therefore it belongs, as in a state of nature, to the first occupant, or finder; unless the owner appear and assert his right, which then proves that the loss was by accident, and not with an intent to renounce his property.
Formerly all treasure-trove belonged to the finder[48]; as was also the rule of the civil law[49]. Afterwards it was judged expedient for the purposes of the state, and particularly for the coinage, to allow part of what was so found to the king; which part was assigned to be all hidden treasure; such as is casually lost and unclaimed, and also such as is designedly abandoned, still remaining the right of the fortunate finder. And that the prince shall be entitled to this hidden treasure is now grown to be, according to Grotius[50], “jus commune, et quasi gentium:” for it is not only observed, he adds, in England, but in Germany, France, Spain, and Denmark. The finding of deposited treasure was much more frequent, and the treasures themselves more considerable, in the infancy of our constitution than at present. When the Romans, and other inhabitants of the respective countries which composed their empire, were driven out by the northern nations, they concealed their money under-ground; with a view of resorting to it again when the heat of the irruption should be over, and the invaders driven back to their defarts. But, as this never happened, the treasures were never claimed; and on the death of the owners the secret also died along with them. The conquering generals, being aware of the value of these hidden mines, made it highly penal to secrete them from the public service. In England therefore, as among the feudists[51], the punishment of such as concealed from the king the finding of hidden treasure was formerly no less than death; but now it is only fine and imprisonment[52].
XIV. Waifs, bona waviata, are goods stolen, and waived or thrown away by the thief in his flight, for fear of being apprehended. These are given to the king by the law, as a punishment upon the owner, for not himself pursuing the felon, and taking away his goods from him[53]. And therefore if the party robbed do his diligence immediately to follow and apprehend the thief (which is called making fresh suit) or do convict him afterwards, or procure evidence to convict him, he shall have his goods again[54]. Waived goods do also not belong to the king, till seised by somebody for his use; for if the party robbed can seise them first, though at the distance of twenty years, the king shall never have them[55]. If the goods are hid by the thief, or left any where by him, so that he had them not about him when he fled, and therefore did not throw them away in his flight; these also are not bona waviata, but the owner may have them again when he pleases[56]. The goods of a foreign merchant, though stolen and thrown away in flight, shall never be waifs[57]: the reason whereof may be, not only for the encouragement of trade, but also because there is no wilful default in the foreign merchant’s not pursuing the thief, he being generally a stranger to our laws, our usages, and our language.
XV. Estrays are such valuable animals as are found wandering in any manor or lordship, and no man knoweth the owner of them; in which case the law gives them to the king as the general owner and lord paramount of the soil, in recompence for the damage which they may have done therein; and they now most commonly belong to the lord of the manor, by special grant from the crown. But in order to vest an absolute property in the king or his grantees, they must be proclaimed in the church and two market towns next adjoining to the place where they are found; and then, if no man claims them, after proclamation and a year and a day passed, they belong to the king or his substitute without redemption[58]; even though the owner were a minor, or under any other legal incapacity[59]. A provision similar to which obtained in the old Gothic constitution, with regard to all things that were found, which were to be thrice proclaimed, primum coram comitibus et viatoribus obviis, deinde in proxima villa vel pago, postremo coram ecclesia vel judicio: and the space of a year was allowed for the owner to reclaim his property[60]. If the owner claims them within the year and day, he must pay the charges of finding, keeping, and proclaiming them[61]. The king or lord has no property till the year and day passed: for if a lord keepeth an estray three quarters of a year, and within the year it strayeth again, and another lord getteth it, the first lord cannot take it again[62]. Any beast may be an estray, that is by nature tame or reclaimable, and in which there is a valuable property, as sheep, oxen, swine, and horses, which we in general call cattle; and so Fleta[63] defines it, pecus vagans, quod nullus petit, sequitur, vel advocat. For animals upon which the law sets no value, as a dog or cat, and animals ferae naturae, as a bear or wolf, cannot be considered as estrays. So swans may be estrays, but not any other fowl[64]; whence they are said to be royal fowl. The reason of which distinction seems to be, that, cattle and swans being of a reclaimed nature, the owner’s property in them is not lost merely by their temporary escape; and they also, from their intrinsic value, are a sufficient pledge for the expense of the lord of the franchise in keeping them the year and day. For he that takes an estray is bound, so long as he keeps it, to find it in provisions and keep it from damage[65]; and may not use it by way of labour, but is liable to an action for so doing[66]. Yet he may milk a cow, or the like, for that tends to the preservation, and is for the benefit of the animal[67].
Besides the particular reasons before given why the king should have the several revenues of royal fish, shipwrecks, treasure-trove, waifs, and estrays, there is also one general reason which holds for them all; and that is, because they are bona vacantia, or goods in which no one else can claim a property. And therefore by the law of nature they belonged to the first occupant or finder; and so continued under the imperial law. But, in settling the modern constitutions of most of the governments in Europe, it was thought proper (to prevent that strife and contention, which the mere title of occupancy is apt to create and continue, and to provide for the support of public authority in a manner the least burthensome to individuals) that these rights should be annexed to the supreme power by the positive laws of the state. And so it came to pass that, as Bracton expresses it[68], haec, quae nullius in bonis sunt, et olim fuerunt inventoris de jure naturali, jam efficiuntur principis de jure gentium.
XVI. The next branch of the king’s ordinary revenue consists in forfeitures of lands and goods for offences; bona confiscata, as they are called by the civilians, because they belonged to the fiscus or imperial treasury; or, as our lawyers term them, forisfacta, that is, such whereof the property is gone away and departed from the owner. The true reason and only substantial ground of any forfeiture for crimes consist in this; that all property is derived from society, being one of those civil rights which are conferred upon individuals, in exchange for that degree of natural freedom, which every man must sacrifice when he enters into social communities. If therefore a member of any national community violates the fundamental contract of his association, by transgressing the municipal law, he forfeits his right to such privileges as he claims by that contract; and the state may very justly resume that portion of property, or any part of it, which the laws have before assigned him. Hence, in every offence of an atrocious kind, the laws of England have exacted a total confiscation of the moveables or personal estate; and in many cases a perpetual, in others only a temporary, loss of the offender’s immoveables or landed property; and have vested them both in the king, who is the person supposed to be offended, being the one visible magistrate in whom the majesty of the public resides. The particulars of these forfeitures will be more properly recited when we treat of crimes and misdemesnors. I therefore only mention them here, for the sake of regularity, as a part of the census regalis; and shall postpone for the present the farther consideration of all forfeitures, excepting one species only, which arises from the misfortune rather than the crime of the owner, and is called a deodand.
By this is meant whatever personal chattel is the immediate occasion of the death of any reasonable creature; which is forfeited to the king, to be applied to pious uses, and distributed in alms by his high almoner[69]; though formerly destined to a more superstitious purpose. It seems to have been originally designed, in the blind days of popery, as an expiation for the souls of such as were snatched away by sudden death; and for that purpose ought properly to have been given to holy church[70]; in the same manner, as the apparel of a stranger who was found dead was applied to purchase masses for the good of his soul. And this may account for that rule of law, that no deodand is due where an infant under the years of discretion is killed by a fall from a cart, or horse, or the like, not being in motion[71]; whereas, if an adult person falls from thence and is killed, the thing is certainly forfeited. For the reason given by sir Matthew Hale seems to be very inadequate, viz. because an infant is not able to take care of himself: for why should the owner save his forfeiture, on account of the imbecillity of the child, which ought rather to have made him more cautious to prevent any accident of mischief? The true ground of this rule seems rather to be, that the child, by reason of it’s want of discretion, is presumed incapable of actual sin, and therefore needed no deodand to purchase propitiatory masses: but every adult, who dies in actual sin, stood in need of such atonement, according to the humane superstition of the founders of the English law.
Thus stands the law, if a person be killed by a fall from a thing standing still. But if a horse, or ox, or other animal, of his own motion, kill as well an infant as an adult, or if a cart run over him, they shall in either case be forfeited as deodands[72]; which is grounded upon this additional reason, that such misfortunes are in part owing to the negligence of the owner, and therefore he is properly punished by such forfeiture. A like punishment is in like cases inflicted by the mosaical law[73]: “if an ox gore a man that he die, the ox shall be stoned, and his flesh shall not be eaten.” And among the Athenians[74], whatever was the cause of a man’s death, by falling upon him, was exterminated or cast out of the dominions of the republic. Where a thing, not in motion, is the occasion of a man’s death, that part only which is the immediate cause is forfeited; as if a man be climbing up a wheel, and is killed by falling from it, the wheel alone is a deodand[75]: but, wherever the thing is in motion, not only that part which immediately gives the wound, (as the wheel, which runs over his body) but all things which move with it and help to make the wound more dangerous (as the cart and loading, which increase the pressure of the wheel) are forfeited[76]. It matters not whether the owner were concerned in the killing or not, for if a man kills another with my sword, the sword is forfeited[77] as an accursed thing[78]. And therefore, in all indictments for homicide, the instrument of death and the value are presented and found by the grand jury (as, that the stroke was given with a certain penknife, value sixpence) that the king or his grantee may claim the deodand: for it is no deodand, unless it be presented as such by a jury of twelve men[79]. No deodands are due for accidents happening upon the high sea, that being out of the jurisdiction of the common law: but if a man falls from a boat or ship in fresh water, and is drowned, it hath been said, that the vessel and cargo are in strictness of law a deodand[80]. But juries have of late very frequently taken upon themselves to mitigate these forfeitures, by finding only some trifling thing, or part of an intire thing, to have been the occasion of the death. And in such cases, although the finding of the jury be hardly warrantable by law, the court of king’s bench hath generally refused to interfere on behalf of the lord of the franchise, to assist so odious a claim[81].
Deodands, and forfeitures in general, as well as wrecks, treasure trove, royal fish, mines, waifs, and estrays, may be granted by the king to particular subjects, as a royal franchise: and indeed they are for the most part granted out to the lords of manors, or other liberties; to the perversion of their original design.
XVII. Another branch of the king’s ordinary revenue arises from escheats of lands, which happen upon the defect of heirs to succeed to the inheritance; whereupon they in general revert to and vest in the king, who is esteemed, in the eye of the law, the original proprietor of all the lands in the kingdom. But the discussion of this topic more properly belongs to the second book of these commentaries, wherein we shall particularly consider the manner in which lands may be acquired or lost by escheat.
XVIII. I proceed therefore to the eighteenth and last branch of the king’s ordinary revenue; which consists in the custody of idiots, from whence we shall be naturally led to consider also the custody of lunatics.
An idiot, or natural fool, is one that hath had no understanding from his nativity; and therefore is by law presumed never likely to attain any. For which reason the custody of him and of his lands was formerly vested in the lord of the fee[82]; (and therefore still, by special custom, in some manors the lord shall have the ordering of idiot and lunatic copyholders[83]) but, by reason of the manifold abuses of this power by subjects, it was at last provided by common consent, that it should be given to the king, as the general conservator of his people, in order to prevent the idiot from wasting his estate, and reducing himself and his heirs to poverty and distress[84]: this fiscal prerogative of the king is declared in parliament by statute 17 Edw. II. c. 9. which directs (in affirmance of the common law[85],) that the king shall have ward of the lands of natural fools, taking the profits without waste or destruction, and shall find them necessaries; and after the death of such idiots he shall render the estate to the heirs; in order to prevent such idiots from aliening their lands, and their heirs from being disinherited.
By the old common law there is a writ de idiota inquirendo, to enquire whether a man be an idiot or not[86]: which must be tried by a jury of twelve men; and, if they find him purus idiota, the profits of his lands, and the custody of his person may be granted by the king to some subject, who has interest enough to obtain them[87]. This branch of the revenue hath been long considered as a hardship upon private families; and so long ago as in the 8 Jac. I. it was under the consideration of parliament, to vest this custody in the relations of the party, and to settle an equivalent on the crown in lieu of it; it being then proposed to share the same fate with the slavery of the feodal tenures, which has been since abolished[88]. Yet few instances can be given of the oppressive exertion of it, since it seldom happens that a jury finds a man an idiot a nativitate, but only non compos mentis from some particular time; which has an operation very different in point of law.
A man is not an idiot[89], if he hath any glimmering of reason, so that he can tell his parents, his age, or the like common matters. But a man who is born deaf, dumb, and blind, is looked upon by the law as in the same state with an idiot[90]; he being supposed incapable of any understanding, as wanting all thole senses which furnish the human mind with ideas.
A lunatic, or non compos mentis, is one who hath had understanding, but by disease, grief, or other accident hath lost the use of his reason. A lunatic is indeed properly one that hath lucid intervals; sometimes enjoying his senses, and sometimes not, and that frequently depending upon the change of the moon. But under the general name of non compos mentis (which sir Edward Coke says is the most legal name[91]) are comprized not only lunatics, but persons under frenzies; or who lose their intellects by disease; those that grow deaf, dumb, and blind, not being born so; or such, in short, as are judged by the court of chancery incapable of conducting their own affairs. To these also, as well as idiots, the king is guardian, but to a very different purpose. For the law always imagines, that these accidental misfortunes may be removed; and therefore only constitutes the crown a trustee for the unfortunate persons, to protect their property, and to account to them for all profits received, if they recover, or after their decease to their representatives. And therefore it is declared by the statute 17 Edw. II. c. 10. that the king shall provide for the custody and sustentation of lunatics, and preserve their lands and the profits of them, for their use, when they come to their right mind: and the king shall take nothing to his own use; and if the parties die in such estate, the residue shall be distributed for their souls by the advice of the ordinary, and of course (by the subsequent amendments of the law of administrations) shall now go to their executors or administrators.
The method of proving a person non compos is very similar to that of proving him an idiot. The lord chancellor, to whom, by special authority from the king, the custody of idiots and lunatics is intruded[92], upon petition or information, grants a commission in nature of the writ de idiota inquirendo, to enquire into the party’s state of mind; and if he be found non compos, he usually commits the care of his person, with a suitable allowance for his maintenance, to some friend, who is then called his committee. However, to prevent sinister practices, the next heir is seldom permitted to be this committee of the person; because it is his interest that the party should die. But, it hath been said, there lies not the same objection against his next of kin, provided he be not his heir; for it is his interest to preserve the lunatic’s life, in order to increase the personal estate by savings, which he or his family may hereafter be entitled to enjoy[93]. The heir is generally made the manager or committee of the estate, it being clearly his interest by good management to keep it in condition; accountable however to the court of chancery, and to the non compos himself, if he recovers; or otherwise, to his administrators.
In this care of idiots and lunatics the civil law agrees with ours; by assigning them tutors to protect their persons, and curators to manage their estates. But in another instance the Roman law goes much beyond the English. For, if a man by notorious prodigality was in danger of wasting his estate, he was looked upon as non compos, and committed to the care of curators or tutors by the praetor[94]. And by the laws of Solon such prodigals were branded with perpetual infamy[95]. But with us, when a man on an inquest of idiocy hath been returned an unthrift and not an idiot[96], no farther proceedings have been had. And the propriety of the practice itself seems to be very questionable. It was doubtless an excellent method of benefiting the individual, and of preserving estates in families; but it hardly seems calculated for the genius of a free nation, who claim and exercise the liberty of using their own property as they please. “Sic utere tuo, ut alienum non laedas,” is the only restriction our laws have given with regard to oeconomical prudence. And the frequent circulation and transfer of lands and other property, which cannot be effected without extravagance somewhere, are perhaps not a little conducive towards keeping our mixed constitution in it’s due health and vigour.
This may suffice for a short view of the king’s ordinary revenue, or the proper patrimony of the crown; which was very large formerly, and capable of being increased to a magnitude truly formidable: for there are very few estates in the kingdom, that have not, at some period or other since the Norman conquest, been vested in the hands of the king by forfeiture, escheat, or otherwise. But, fortunately for the liberty of the subject, this hereditary landed revenue, by a series of improvident management, is funk almost to nothing; and the casual profits, arising from the other branches of the census regalis, are likewise almost all of them alienated from the crown. In order to supply the deficiences of which, we are now obliged to have recourse to new methods of raising money, unknown to our early ancestors; which methods constitute the king’s extraordinary revenue. For, the public patrimony being got into the hands of private subjects, it is but reasonable that private contributions should supply the public service. Which, though it may perhaps fall harder upon some individuals, whose ancestors have had no share in the general plunder, than upon others, yet, taking the nation throughout, it amounts to nearly the same; provided the gain by the extraordinary, should appear to be no greater than the loss by the ordinary, revenue. And perhaps, if every gentleman in the kingdom was to be stripped of such of his lands as were formerly the property of the crown; was to be again subject to the inconveniences of purveyance and pre-emption, the oppression of forest laws, and the slavery of feodal tenures; and was to resign into the king’s hands all his royal franchises of waifs, wrecks, estrays, treasure-trove, mines, deodands, forfeitures, and the like: he would find himself a greater loser, than by paying his quota to such taxes, as are necessary to the support of government. The thing therefore to be wished and aimed at in a land of liberty, is by no means the total abolition of taxes, which would draw after it very pernicious consequences, and the very supposition of which is the height of political absurdity. For as the true idea of government and magistracy will be found to consist in this, that some few men are deputed by many others to preside over public affairs, so that individuals may the better be enabled to attend their private concerns; it is necessary that those individuals should be bound to contribute a portion of their private gains, in order to support that government, and reward that magistracy, which protects them in the enjoyment of their respective properties. But the things to be aimed at are wisdom and moderation, not only in granting, but also in the method of raising, the necessary supplies; by contriving to do both in such a manner as may be mod conducive to the national welfare, and at the same time most consistent with oeconomy and the liberty of the subject; who, when properly taxed, contributes only, as was before observed[97], some part of his property, in order to enjoy the rest.
These extraordinary grants are usually called by the synonymous names of aids, subsidies, and supplies; and are granted, we have formerly seen[98], by the commons of Great Britain, in parliament assembled: who, when they have voted a supply to his majesty, and settled the quantum of that supply, usually resolve themselves into what is called a committee of ways and means, to consider of the ways and means of raising the supply so voted. And in this committee every member (though it is looked upon as the peculiar province of the chancellor of the exchequer) may propose such scheme of taxation as he thinks will be least detrimental to the public. The resolutions of this committee (when approved by a vote of the house) are in general esteemed to be (as it were) final and conclusive. For, though the supply cannot be actually raised upon the subject till directed by an act of the whole parliament, yet no monied man will scruple to advance to the government any quantity of ready cash, on the credit of a bare vote of the house of commons, though no law be yet passed to establish it.
The taxes, which are raised upon the subject, are either annual or perpetual. The usual annual taxes are those upon land and malt.
I. The land tax, in it’s modern shape, has superseded all the former methods of rating either property, or persons in respect of their property, whether by tenths or fifteenths, subsidies on land, hydages, scutages, or talliages; a short explication of which will greatly assist us in understanding our antient laws and history.
Tenths, and fifteenths[99], were temporary aids issuing out of personal property, and granted to the king by parliament. They were formerly the real tenth or fifteenth part of all the moveables belonging to the subject; when such moveables, or personal estates, were a very different and a much less considerable thing than what they usually are at this day. Tenths are said to have been first granted under Henry the second, who took advantage of the fashionable zeal for croisades to introduce this new taxation, in order to defray the expense of a pious expedition to Palestine, which he really or seemingly had projected against Saladine emperor of the Saracens; whence it was originally denominated the Saladine tenth[100]. But afterwards fifteenths were more usually granted than tenths. Originally the amount of these taxes was uncertain, being levied by assessments new made at every fresh grant of the commons, a commission for which is preserved by Matthew Paris[101]: but it was at length reduced to a certainty in the eighth year of Edward III, when, by virtueof the king’s commission, new taxations were made of every township, borough, and city in the kingdom, and recorded in the exchequer; which rate was, at the time, the fifteenth part of the value of every township, the whole amounting to about 29000𝑙. and therefore it still kept up the name of a fifteenth, when, by the alteration of the value of money and the encrease of personal property, things came to be in a very different situation. So that when, of later years, the commons granted the king a fifteenth, every parish in England immediately knew their proportion of it; that is, the same identical sum that was assessed by the same aid in the eighth of Edward III; and then raised it by a rate among themselves, and returned it into the royal exchequer.
The other antient levies were in the nature of a modern land tax: for we may trace up the original of that charge as high as to the introduction of our military tenures[102]; when every tenant of a knight’s fee was bound, if called upon, to attend the king in his army far forty days in every year. But this personal attendance growing troublesome in many respects, the tenants found, means of compounding for it, by first sending others in their stead, and in process of time by making a pecuniary satisfaction to the crown in lieu of it. This pecuniary satisfaction at last came to be levied by assessments, at so much for every knight’s fee, under the name of scutages; which appear to have been levied for the first time in the fifth year of Henry the second, on account of his expedition to Toulouse, and were then (I apprehend) mere arbitrary compositions, as the king and the subject could agree. But this precedent being afterwards abused into a means of oppression, (by levying scutages on the landholders by the royal authority only, whenever our kings went to war, in order to hire mercenary troops and pay their contingent expenses) it became thereupon a matter of national complaint; and king John was obliged to promise in his magna carta[103], that no scutage should be imposed without the consent of the common council of the realm. This clause was indeed omitted in the charters of Henry III, where[104] we only find it stipulated, that scutages should be taken as they were used to be in the time of king Henry the second. Yet afterwards, by a variety of statutes under Edward I and his grandson[105], it was provided, that the king shall not take any aids or talks, any talliage or tax, but by common assent of the great men and commons in parliament.
Of the same nature with scutages upon knights-fees were the assessments of hydage upon all other lands, and of talliage upon cities and burghs[106]. But they all gradually fell into disuse, upon the introduction of subsidies, about the time of king Richard II and king Henry IV. These were a tax, not immediately imposed upon property, but upon persons in respect of their reputed estates, after the nominal rate of 4s. in the pound for lands, and 2s. 6d. for goods; and for those of aliens in a double proportion. But this assessment was also made according to an antient valuation; wherein the computation was so very moderate, and the rental of the kingdom was supposed to be so exceeding low, that one subsidy of this sort did not, according to sir Edward Coke[107], amount to more than 70000𝑙. whereas a modern land tax at the same rate produces two millions. It was antiently the rule never to grant more than one subsidy, and two fifteenths at a time; but this rule was broke through for the first time on a very pressing occasion, the Spanish invasion in 1588; when the parliament gave queen Elizabeth two subsidies and four fifteenths. Afterwards, as money funk in value, more subsidies were given; and we have an instance in the first parliament of 1640, of the king’s desiring twelve subsidies of the commons, to be levied in three years; which was looked upon as a startling proposal: though lord Clarendon tells us[108], that the speaker, serjeant Glanvile, made it manifest to the house, how very inconsiderable a sum twelve subsidies amounted to, by telling them he had computed what he was to pay for them; and, when he named the sum, he being known to be possessed of a great estate, it seemed not worth any farther deliberation. And indeed, upon calculation, we shall find, that the total amount of these twelve subsidies, to be raised in three years, is less than what is now raised in one year, by a land tax of two shillings in the pound.
The grant of scutages, talliages, or subsidies by the commons did not extend to spiritual preferments; those being usually taxed at the same time by the clergy themselves in convocation; which grants of the clergy were confirmed in parliament, otherwise they were illegal, and not binding; as the same noble writer observes of the subsidies granted by the convocation, who continued sitting after the dissolution of the first parliament in 1640. A subsidy granted by the clergy was after the rate of 4s. in the pound according to the valuation of their livings in the king’s books; and amounted, sir Edward Coke tells us[109], to about 20000𝑙. While this custom continued, convocations were wont to fit as frequently as parliaments: but the last subsidies, thus given by the clergy, were those confirmed by statute 15 Car. II. cap. 10. since which another method of taxation has generally prevailed, which takes in the clergy as well as the laity; in recompense for which the beneficed clergy have from that period been allowed to vote at the elections of knights of the shire[110]; and thenceforward also the practice of giving ecclesiastical subsidies hath fallen into total disuse.
The lay subsidy was usually raised by commissioners appointed by the crown, or the great officers of state: and therefore in the beginning of the civil wars between Charles I and his parliament, the latter, having no other sufficient revenue to support themselves and their measures, introduced the practice of laying weekly and monthly assessments[111] of a specific sum upon the several counties of the kingdom; to be levied by a pound rate on lands and personal estates: which were occasionally continued during the whole usurpation, sometimes at the rate of 120000𝑙. a month; sometimes at inferior rates[112]. After the restoration the antient method of granting subsidies, instead of such monthly assessments, was twice, and twice only, renewed; viz. in 1663, when four subsidies were granted by the temporalty, and four by the clergy; and in 1670, when 800000𝑙. was raised by way of subsidy, which was the last time of raising supplies in that manner. For, the monthly assessments being now established by custom, being raised by commissioners named by parliament, and producing a more certain revenue; from that time forwards we hear no more of subsidies; but occasional assessments were granted as the national emergencies required. These periodical assessments, the subsidies which preceded them, and the more antient scutage, hydage, and talliage, were to all intents and purposes a land tax; and the assessments were sometimes expressly called so[113]. Yet a popular opinion has prevailed, that the land tax was first introduced in the reign of king William III; because in the year 1692 a new assessment or valuation of estates was made throughout the kingdom; which, though by no means a perfect one, had this effect, that a supply of 500000𝑙. was equal to 1s. in the pound of the value of the estates given in. And, according to this enhanced valuation, from the year 1693 to the present, a period of above seventy years, the land tax has continued an annual charge upon the subject; above half the time at 4s. in the pound, sometimes at 3s, sometimes at 2s, twice[114] at 1s, but without any total intermission. The medium has been 3s. 3d. in the pound, being equivalent to twenty three antient subsidies, and amounting annually to more than a million and an half of money. The method of raising it is by charging a particular sum upon each county, according to the valuation given in, A. D. 1692: and this sum is assessed and raised upon individuals (their personal estates, as well as real, being liable thereto) by commissioners appointed in the act, being the principal landholders of the county, and their officers.
II. The other annual tax is the malt tax; which is a sum of 750000𝑙, raised every year by parliament, ever since 1697, by a duty of 6d. in the bushel on malt, and a proportionable sum on certain liquors, such as cyder and perry, which might otherwise prevent the consumption of malt. This is under the management of the commissioners of the excise; and is indeed itself no other than an annual excise, the nature of which species of taxation I shall presently explain: only premising at present, that in the year 1760 an additional perpetual excise of 3d. per bushel was laid upon malt; and in 1763 a proportionable excise was laid upon cyder and perry, but new-modelled in 1766.
The perpetual taxes are,
I. The customs; or the duties, toll, tribute, or tariff, payable upon merchandize exported and imported. The considerations upon which this revenue (or the more antient part of it, which arose only from exports) was inverted in the king, were said to be two[115]; 1. Because he gave the subject leave to depart the kingdom, and to carry his goods along with him. 2. Because the king was bound of common right to maintain and keep up the ports and havens, and to protect the merchant from pirates. Some have imagined they are called with us customs, because they were the inheritance of the king by immemorial usage and the common law, and not granted him by any statute[116]: but sir Edward Coke hath clearly shewn[117], that the king’s first claim to them was by grant of parliament 3 Edw. I. though the record thereof is not now extant. And indeed this is in express words confessed by statute 25 Edw. I. c. 7. wherein the king promises to take no customs from merchants, without the common assent of the realm, “saving to us and our heirs, the customs on wools, skins, and leather, formerly granted to us by the commonalty aforesaid.” These were formerly called the hereditary customs of the crown; and were due on the exportation only of the said three commodities, and of none other: which were stiled the staple commodities of the kingdom, because they were obliged to be brought to those ports where the king’s staple was established, in order to be there first rated, and then exported[118]. They were denominated in the barbarous Latin of our antient records, custuma[119]; not consuetudines, which is the language of our law whenever it means merely usages. The duties on wool, sheep-skins or woolfells, and leather, exported, were called custuma antiqua sive magna; and were payable by every merchant, as well native as stranger; with this difference, that merchant strangers paid an additional toll, viz. half as much again as was paid by natives. The custuma parva et nova were an impost of 3d. in the pound, due from merchant-strangers only, for all commodities as well imported as exported; which was usually called the alien’s duty, and was first granted in 31 Edw. I[120]. But these antient hereditary customs, especially those on wool and woolfells, came to be of little account when the nation became sensible of the advantages of a home manufacture, and prohibited the exportation of wool by statute 11 Edw. III. c. 1.
There is also another very antient hereditary duty belonging to the crown, called the prisage or butlerage of wines; which is considerably older than the customs, being taken notice of in the great roll of the exchequer, 8 Ric. I. still extant[121]. Prisage was a right of taking two tons of vine from every ship importing into England twenty tons or more; which by Edward I was exchanged into a duty of 2s. for every ton imported by merchant-strangers, and called butlerage, because paid to the king’s butler[122].
Other customs payable upon exports and imports were distinguished into subsidies, tonnage, poundage, and other imports. Subsidies were such as were imposed by parliament upon any of the staple commodities before-mentioned, over and above the custuma antiqua et magna: tonnage was a duty upon all wines imported, over and above the prisage and butlerage aforesaid: poundage was a duty imposed ad valorem, at the rate of 12d. in the pound, on all other merchandize whatsoever: and the other imports were such as were occasionally laid on by parliament, as circumstances and times required[123]. These distinctions are now in a manner forgotten, except by the officers immediately concerned in this department; their produce being in effect all blended together, under the one denomination of the customs.
By these we understand, at present, a duty or subsidy paid by the merchant, at the quay, upon all imported as well as exported commodities, by authority of parliament; unless where, for particular national reasons, certain rewards, bounties, or drawbacks, are allowed for particular exports or imports. Those of tonnage and poundage, in particular, were at first granted, as the old statutes (and particularly 1 Eliz. c. 19.) express it, for the defence of the realm, and the keeping and safeguard of the seas, and for the intercourse of merchandize safely to come into and pass out of the same. They were at first usually granted only for a stated term of years, as, for two years in 5 Ric. II[124]; but in Henry the fifth’s time, they were granted him for life by a statute in the third year of his reign; and again to Edward IV for the term of his life also: since which time they were regularly granted to all his successors, for life, sometimes at their first, sometimes at other subsequent parliaments, till the reign of Charles the first; when, as the noble historian expresses it[125], his ministers were not sufficiently solicitous for a renewal of this legal grant. And yet they were imprudently and unconstitutionally levied and taken, without consent of parliament, for fifteen years together; which was one of the causes of those unhappy discontents, justifiable at first in too many instances, but which degenerated at last into causeless rebellion and murder. For, as in every other, so in this particular case, the king (previous to the commencement of hostilities) gave the nation ample satisfaction for the errors of his former condust, by passing an act[126], whereby he renounced all power in the crown of levying the duty of tonnage and poundage, without the express consent of parliament; and also all power of imposition upon any merchandizes whatever. Upon the restoration this duty was granted to king Charles the second for life, and so it was to his two immediate successors; but now by three several statutes, 9 Ann. c. 6. 1 Geo. I. c. 12. and. 3 Geo. I. c. 7. it is made perpetual and mortgaged for the debt of the public. The customs, thus imposed by parliament, are chiefly contained in two books of rates, set forth by parliamentary authority[127]; one signed by sir Harbottle Grimston, speaker of the house of commons in Charles the second’s time; and the other an additional one signed by sir Spenser Compton, speaker in the reign of George the first; to which also subsequent additions have been made. Aliens pay a larger proportion than natural subjects, which is what is now generally understood by the aliens’ duty; to be exempted from which is one principal cause of the frequent applications to parliament for acts of naturalization.
These customs are then, we see, a tax immediately paid by the merchant, although ultimately by the consumer. And yet these are the duties felt lead by the people; and, if prudently managed, the people hardly consider that they pay them at all. For the merchant is easy, being sensible he does not pay them for himself; and the consumer, who really pays them, confounds them with the price of the commodity: in the same manner as Tacitus observes, that the emperor Nero gained the reputation of abolishing the tax on the sale of slaves, though he only transferred it from the buyer to the seller; so that it was, as he expresses it, “remissum magis specie, quam vi: quia, cum venditor pendere juberetur, in partem pretii emptoribus accrescebat[128].” But this inconvenience attends it on the other hand, that these imports, if too heavy, are a check and cramp upon trade; and especially when the value of the commodity bears little or no proportion to the quantity of the duty imposed. This in consequence gives rise also to smuggling, which then becomes a very lucrative employment: and it’s natural and most reasonable punishment, viz. confiscation of the commodity, is in such cases quite ineffectual; the intrinsic value of the goods, which is all that the smuggler has paid, and therefore all that he can lose, being very inconsiderable when compared with his prospect of advantage in evading the duty. Recourse must therefore be had to extraordinary punishments to prevent it; perhaps even to capital ones: which destroys all proportion of punishment[129], and puts murderers upon an equal footing with such as are really guilty of no natural, but merely a positive, offence.
There is also another ill consequence attending high imposts on merchandize, not frequently considered, but indisputably certain; that the earlier any tax is laid on a commodity, the heavier it falls upon the consumer in the end: for every trader, through whose hands it passes, must have a profit, not only upon the raw material and his own labour and time in preparing it, but also upon the very tax itself, which he advances to the government; otherwise he loses the use and interest of the money which he so advances. To instance in the article of foreign paper. The merchant pays a duty upon importation, which he does not receive again till he sells the commodity, perhaps at the end of three months. He is therefore equally entitled to a profit upon that duty which he pays at the custom-house, as to a profit upon the original price which he pays to the manufacturer abroad; and considers it accordingly in the price he demands of the stationer. When the stationer sells it again, he requires a profit of the printer or bookseller upon the whole sum advanced by him to the merchant: and the bookseller does not forget to charge the full proportion to the student or ultimate consumer; who therefore does not only pay the original duty, but the profits of these three intermediate traders, who have successively advanced it for him. This might be carried much farther in any mechanical, or more complicated, branch of trade.
II. Directly opposite in it’s nature to this is the excise duty; which is an inland imposition, paid sometimes upon the consumption of the commodity, or frequently upon the retail sale, which is the last stage before the consumption. This is doubtless, impartially speaking, the most oeconomical way of taxing the subject: the charges of levying, collecting, and managing the excise duties being considerably less in proportion, than in other branches of the revenue. It also renders the commodity cheaper to the consumer, than charging it with customs to the same amount would do; for the reason just now given, because generally paid in a much later stage of it. But, at the same time, the rigour and arbitrary proceedings of excise-laws seem hardly compatible with the temper of a free nation. For the frauds that might be committed in this branch of the revenue, unless a strict watch is kept, make it necessary, wherever it is established, to give the officers a power of entring and searching the houses of such as deal in excisable commodities, at any hour of the day, and, in many cases, of the night likewise. And the proceedings in case of transgressions are so summary and sudden, that a man may be convicted in two days time in the penalty of many thousand pounds by two commissioners or justices of the peace; to the total exclusion of the trial by jury, and disregard of the common law. For which reason, though lord Clarendon tells us[130], that to his knowlege the earl of Bedford (who was made lord treasurer by king Charles the first, to oblige his parliament) intended to have set up the excise in England, yet it never made a part of that unfortunate prince’s revenue; being first introduced, on the model of the Dutch prototype, by the parliament itself after it’s rupture with the crown. Yet such was the opinion of it’s general unpopularity, that when in 1642 “aspersions were cast by malignant persons upon the house of commons, that they intended to introduce excises, the house for it’s vindication therein did declare, that these rumours were false and scandalous; and that their authors should be apprehended and brought to condign punishment[131].” It’s original[132] establishment was in 1643, and it’s progress was gradual; being at first laid upon those persons and commodities, where it was supposed the hardship would be least perceivable, viz. the makers and venders of beer, ale, cyder, and perry[133]; and the royalists at Oxford soon followed the example of their brethren at Westminster by imposing a similar duty; both sides protesting that it should be continued no longer than to the end of the war, and then be utterly abolished[134]. But the parliament at Westminster soon after imposed it on flesh, wine, tobacco, sugar, and such a multitude of other commodities that it might fairly be denominated general; in pursuance of the plan laid down by Mr Pymme (who seems to have been the father of the excise) in his letter to sir John Hotham[135], signifying, “that they had proceeded in the excise to many particulars, and intended to go on farther; but that it would be necessary to use the people to it by little and little.” And afterwards, when the nation had been accustomed to it for a series of years, the succeeding champions of liberty boldly and openly declared “the impost of excise to be the most easy and indifferent levy that could be laid upon the people[136]:” and accordingly continued it during the whole usurpation. Upon king Charles’s return, it having then been long established and it’s produce well known, some part of it was given to the crown, in 12 Car. II, by way of purchase (as was before observed) for the feodal tenures and other oppressive parts of the hereditary revenue. But, from it’s first original to the present time, it’s very name has been odious to the people of England. It has nevertheless been imposed on abundance of other commodities in the reigns of king William III, and every succeeding prince, to support the enormous expenses occasioned by our wars on the continent. Thus brandies and other spirits are now excised at the distillery; printed silks and linens, at the printers; starch and hair powder, at the maker’s; gold and silver wire, at the wiredrawer’s; all plate whatsoever, first in the hands of the vendor, who pays yearly for a licence to sell it, and afterwards in the hands of the occupier, who also pays an annual duty for having it in his custody; and coaches and other wheel carriages, for which the occupier is excised; though not with the same circumstances of arbitrary strictness with regard to plate and coaches, as in the other instances. To these we may add coffee and tea, chocolate, and cocoa paste, for which the duty is paid by the retailer; all artificial wines, commonly called sweets; paper and pasteboard, first: when made, and again if stained or printed; malt as before-mentioned; vinegars; and the manufacture of glass; for all which the duty is paid by the manufacturer; hops, for which the person that gathers them is answerable; candles and soap, which are paid for at the maker’s; malt liquors brewed for sale, which are excised at the brewery; cyder and perry, at the vendor’s; and leather and skins, at the tanner’s. A list, which no friend to his country would wish to see farther encreased.
III. I proceed therefore to a third duty, namely that upon salt; which is another distinct branch of his majesty’s extraordinary revenue, and consists in an excise of 3s. 4d. per bushel imposed upon all salt, by several statutes of king William and other subsequent reigns. This is not generally called an excise, because under the management of different commissioners: but the commissioners of the salt duties have by statute 1 Ann. c. 21. the same powers, and must observe the same regulations, as those of other excises. This tax had usually been only temporary; but by statute 26 Geo. II. c. 3. was made perpetual.
IV. Another very considerable branch of the revenue is levied with greater chearfulness, as, instead of being a burden, it is a manifest advantage to the public. I mean the post-office, or duty for the carriage of letters. As we have traced the original of the excise to the parliament of 1643, so it is but justice to observe that this useful invention owes it’s birth to the same assembly. It is true, there existed post-masters in much earlier times: but I apprehend their business was confined to the furnishing of post-horses to persons who were desirous to travel expeditiously, and to the dispatching extraordinary pacquets upon special occasions. The outline of the present plan seems to have been originally conceived by Mr Edmond Prideaux, who was appointed attorney general to the commonwealth after the murder of king Charles. He was chairman of a committee in 1642 for considering what rates should be set upon inland letters[137]; and afterwards appointed post-master by an ordinance of both the houses[138], in the execution of which office he first established a weekly conveyance of letters into all parts of the nation[139]: thereby saving to the public the charge of maintaining post-masters, to the amount of 7000𝑙. per annum. And, his own emoluments being probably considerable, the common council of London endeavoured to erect another post-office in opposition to his, till checked by a resolution of the commons[140], declaring, that the office of post-master is and ought to be in the sole power and disposal of the parliament. This office was afterwards farmed by one Manley in 1654[141]. But, in 1657, a regular post-office was erected by the authority of the protector and his parliament, upon nearly the same model as has been ever since adopted, with the same rates of portage as were continued till the reign of queen Anne[142]. After the restoration a similar office, with some improvements, was established by statute 12 Car. II. c. 35. but the rates of letters were altered, and some farther regulations added, by the statutes 9 Ann. c. 10. 6 Geo. I. c. 21. 26 Geo. II. c. 12. and 5 Geo. III. c. 25. and penalties were enacted, in order to confine the carriage of letters to the public office only, except in some few cases: a provision, which is absolutely necessary; for nothing but an exclusive right can support an office of this sort: many rival independent offices would only serve to ruin one another. The privilege of letters coming free of portage, to and from members of parliament, was claimed by the house of commons in 1660, when the first legal settlement of the present port-office was made[143]; but afterwards dropped[144] upon a private assurance from the crown, that this privilege should be allowed the members[145]. And accordingly a warrant was constantly issued to the post-master-general[146], directing the allowance thereof, to the extent of two ounces in weight: till at length it was expressly confirmed by statute 4 Geo. III. c. 24; which adds many new regulations, rendered necessary by the great abuses crept into the practice of franking; whereby the annual amount of franked letters had gradually increased, from 23600𝑙. in the year 1715, to 170700𝑙. in the year 1763[147]. There cannot be devised a more eligible method, than this, of raising money upon the subject: for therein both the government and the people find a mutual benefit. The government acquires a large revenue; and the people do their business with greater ease, expedition, and cheapness, than they would be able to do if no such tax (and of course no such office) existed.
V. A fifth branch of the perpetual revenue consists in the stamp duties, which are a tax imposed upon all parchment and paper whereon any legal proceedings, or private instruments of almost any nature whatsoever, are written; and also upon licences for retailing wines, of all denominations; upon all almanacks, news-papers, advertisements, cards, dice, and pamphlets containing less than six sheets of paper. These imports are very various, according to the nature of the thing stamped, rising gradually from a penny to ten pounds. This is also a tax, which though in some instances it may be heavily felt, by greatly increasing the expense of all mercantile as well as legal proceedings, yet (if moderately imposed) is of service to the public in general, by authenticating instruments, and rendering it much more difficult than formerly to forge deeds of any standing; since, as the officers of this branch of the revenue vary their stamps frequently, by marks perceptible to none but themselves, a man that would forge a deed of king William’s time, must know and be able to counterfeit the stamp of that date also. In France and some other countries the duty is laid on the contract itself, not on the instrument in which it is contained: but this draws the subject into a thousand nice disquisitions and disputes concerning the nature of his contract, and whether taxable or not; in which the farmers of the revenue are lure to have the advantage. Our method answers the purposes of the state as well, and consults the ease of the subject much better. The first institution of the stamp duties was by statute 5 & 6 W. & M. c. 21. and they have since in many instances been encreased to five times their original amount.
VI. A sixth branch is the duty upon houses and windows. As early as the conquest mention is made in domesday book of fumage or fuage, vulgarly called smoke farthings; which were paid by custom to the king for every chimney in the house. And we read that Edward the black prince (soon after his successes in France) in imitation of the English custom, imposed a tax of a florin upon every hearth in his French dominions[148]. But the first parliamentary establishment of it in England was by statute 13 & 14 Car. II. c. 10. whereby an hereditary revenue of 2s. for every hearth, in all houses paying to church and poor, was granted to the king for ever. And, by subsequent statutes, for the more regular assessment of this tax, the constable and two other substantial inhabitants of the parish, to be appointed yearly, (or the surveyor, appointed by the crown, together with such constable or other public officer) were, once in every year, empowered to view the inside of every house in the parish. But, upon the revolution, by statute 1 W. & M. st. 1. c. 10. hearth-money was declared to be “not only a great oppression to the poorer sort, but a badge of slavery upon the whole people, exposing every man’s house to be entered into, and searched at pleasure, by persons unknown to him; and therefore, to erect a lasting monument of their majesties’ goodness in every house in the kingdom, the duty of hearth-money was taken away and abolished.” This monument of goodness remains among us to this day: but the prospect of it was somewhat darkened when, in six years afterwards, by statute 7 W. III. c. 18. a tax was laid upon all houses (except cottages) of 2s. now advanced to 3s. per house, and a tax also upon all windows, if they exceeded nine, in such house. Which rates have been from time to time[149] varied, being now extended to all windows exceeding six; and power is given to surveyors, appointed by the crown, to inspect the outside of houses, and also to pass through any house two days in the year, into any court or yard to inspect the windows there.
VII. The seventh branch of the extraordinary perpetual revenue is the duty arising from licences to hackney coaches and chairs in London, and the parts adjacent. In 1654 two hundred hackney coaches were allowed within London, Westminster, and six miles round, under the direction of the court of aldermen[150]. By statute 13 & 14 Car. II. c. 2. four hundred were licensed; and the money arising thereby was applied to repairing the streets[151]. This number was increased to seven hundred by statute 5 W. & M. c. 22. and the duties vested in the crown: and by the statute 9 Ann. c. 23. and other subsequent statutes[152], there are now eight hundred licensed coaches and four hundred chairs. This revenue is governed by commissioners of it’s own, and is, in truth, a benefit to the subject; as the expense of it is felt by no individual, and it’s necessary regulations have established a competent jurisdiction, whereby a very refractory race of men may be kept in some tolerable order.
VIII. The eighth and last branch of the king’s extraordinary perpetual revenue is the duty upon offices and pensions; consisting in a payment of 1s. in the pound (over and above all other duties) out of all salaries, fees, and perquisites, of offices, and pensions payable by the crown. This highly popular taxation was imposed by statute 31 Geo. II. c. 22. and is under the direction of the commissioners of the land tax.
The clear neat produce of these several branches of the revenue, after all charges of collecting and management paid, amounts annually to about seven millions and three quarters sterling; besides two millions and a quarter raised annually, at an average, by the land and malt tax. How these immense sums are appropriated, is next to be considered. And this is, first and principally, to the payment of the interest of the national debt.
In order to take a clear and comprehensive view of the nature of this national debt, it must first be premised, that after the revolution, when our new connections with Europe introduced a new system of foreign politics, the expenses of the nation, not only in settling the new establishment, but in maintaining long, wars, as principals, on the continent, for the security of the Dutch barrier, reducing the French monarchy, settling the Spanish succession, supporting the house of Austria, maintaining the liberties of the Germanic body, and other purposes, increased to an unusual degree: insomuch that it was not thought advisable to raise all the expenses of any one year by taxes to be levied within that year, left the unaccustomed weight of them should create murmurs among the people. It was therefore the policy of the times, to anticipate the revenues of their posterity, by borrowing immense sums for the current service of the state, and to lay no more taxes upon the subject than would suffice to pay the annual interest of the sums so borrowed: by this means converting the principal debt into a new species of property, transferrable from one man to another at any time and in any quantity. A system which seems to have had it’s original in the state of Florence, A. D. 1344: which government then owed about 60000𝑙. sterling, and, being unable to pay it, formed the principal into an aggregate sum, called metaphorically a mount or bank, the shares whereof were transferrable like our flocks, with interest at 5 per cent. the prices varying according to the exigencies of the state[153]. This laid the foundation of what is called the national debt: for a few long annuities created in the reign of Charles II will hardly deserve that name. And the example then set has been so closely followed during the long wars in the reign of queen Anne, and since, that the capital of the national debt, (funded and unfunded) amounted in January 1765 to upwards of 145,000,000𝑙. to pay the interest of which, and the charges for management, amounting annually to about four millions and three quarters, the extraordinary revenues just now enumerated (excepting only the land-tax and annual malt-tax) are in the first place mortgaged, and made perpetual by parliament. Perpetual, I say; but still redeemable by the same authority that imposed them: which, if it at any time can pay off the capital, will abolish those taxes which are raised to discharge the interest.
By this means the quantity of property in the kingdom is greatly encreased in idea, compared with former times; yet, if we coolly consider it, not at all encreased in reality. We may boast of large fortunes, and quantities of money in the funds. But where does this money exist? It exists only in name, in paper, in public faith, in parliamentary security: and that is undoubtedly sufficient for the creditors of the public to rely on. But then what is the pledge which the public faith has pawned for the security of these debts? The land, the trade, and the personal industry of the subject; from which the money must arise that supplies the several taxes. In these therefore, and these only, the property of the public creditors does really and intrinsically exist: and of course the land, the trade, and the personal industry of individuals, are diminished in their true value just so much as they are pledged to answer. If A’s income amounts to 100𝑙. per annum; and he is so far indebted to B, that he pays him 50𝑙. per annum for his interest; one half of the value of A’s property is transferred to B the creditor. The creditor’s property exists in the demand which he has upon the debtor, and no where else; and the debtor is only a trustee to his creditor for one half of the value of his income. In short, the property of a creditor of the public consists in a certain portion of the national taxes: by how much therefore he is the richer, by so much the nation, which pays these taxes, is the poorer.
The only advantage, that can result to a nation from public debts, is the encrease of circulation by multiplying the cash of the kingdom, and creating a new species of money, always ready to be employed in any beneficial undertaking, by means of it’s transferrable quality; and yet productive of some profit, even when it lies idle and unemployed. A certain proportion of debt seems therefere to be highly useful to a trading people; but what that proportion is, it is not for me to determine. Thus much is indisputably certain, that the present magnitude of our national incumbrances very far exceeds all calculations of commercial benefit, and is productive of the greatest inconveniences. For, first, the enormous taxes, that are raised upon the necessaries of life for the payment of the interest of this debt, are a hurt both to trade and manufactures, by raising the price as well of the artificer’s subsistence, as of the raw material, and of course, in a much greater proportion, the price of the commodity itself. Secondly, if part of this debt be owing to foreigners, either they draw out of the kingdom annually a considerable quantity of specie for the interest; or else it is made an argument to grant them unreasonable privileges in order to induce them to reside here. Thirdly, if the whole be owing to subjects only, it is then charging the active and industrious subject, who pays his mare of the taxes, to maintain the indolent and idle creditor who receives them. Lastly, and principally, it weakens the internal strength of a state, by anticipating those resources which should be reserved to defend it in case of necessity. The interest we now pay for our debts would be nearly sufficient to maintain any war, that any national motives could require. And if our ancestors in king William’s time had annually paid, so long as their exigencies lasted, even a less sum than we now annually raise upon their accounts, they would in the time of war have born no greater burdens, than they have bequeathed to and settled upon their posterity in time of peace; and might have been eased the instant the exigence was over.
The produce of the several taxes beforementioned were originally separate and distinct funds; being securities for the sums advanced on each several tax, and for them only. But at last it became necessary, in order to avoid confusion, as they multiplied yearly, to reduce the number of these separate funds, by uniting and blending them together; superadding the faith of parliament for the general security of the whole. So that there are now only three capital funds of any account, the aggregate fund, and the general fund, so called from such union and addition; and the south sea fund, being the produce of the taxes appropriated to pay the interest of such part of the national debt as was advanced by that company and it’s annuitants. Whereby the separate funds, which were thus united, are become mutual securities for each other; and the whole produce of them, thus aggregated, liable to pay such interest or annuities as were formerly charged upon each distinct fund; the faith of the legislature being moreover engaged to supply any casual deficiences.
The customs, excises, and other taxes, which are to support these funds, depending on contingencies, upon exports, imports, and consumptions, must necessarily be of a very uncertain amount; but they have always been considerably more than was sufficient to answer the charge upon them. The surplusses therefore of the three great national funds, the aggregate, general, and south sea funds, over and above the interest and annuities charged upon them, are directed by statute 3 Geo. I. c. 7. to be carried together, and to attend the disposition of parliament; and are usually denominated the sinking fund, because originally destined to sink and lower the national debt. To this have been since added many other intire duties, granted in subsequent years; and the annual interest of the sums borrowed on their respective credits is charged on and payable out of the produce of the sinking fund. However the neat surplusses and savings, after all deductions paid, amount annually to a very considerable sum; particularly in the year ending at Christmas 1764, to about two millions and a quarter. For, as the interest on the national debt has been at several times reduced, (by the consent of the proprietors, who had their option either to lower their interest or be paid their principal) the savings from the appropriated revenues must needs be extremely large. This sinking fund is the last resort of the nation; it’s only domestic resource, on which must chiefly depend all the hopes we can entertain of ever discharging or moderating our incumbrances. And therefore the prudent application of the large sums, now arising from this fund, is a point of the utmost importance, and well worthy the serious attention of parliament; which was thereby enabled, in the year 1765, to reduce above two millions sterling of the public debt.
But, before any part of the aggregate fund (the surplusses whereof are one of the chief ingredients that form the sinking fund) can be applied to diminish the principal of the public debt, it stands mortgaged by parliament to raise an annual sum for the maintenance of the king’s houshold and the civil list. For this purpose, in the late reigns, the produce of certain branches of the excise and customs, the post-office, the duty on wine licences, the revenues of the remaining crown lands, the profits arising from courts of justice, (which articles include all the hereditary revenues of the crown) and also a clear annuity of 120000𝑙. in money, were settled on the king for life, for the support of his majesty’s houshold, and the honour and dignity of the crown. And, as the amount of these several branches was uncertain, (though in the last reign they were computed to have sometimes raised almost a million) if they did not arise annually to 800,000𝑙. the parliament engaged to make up the deficiency. But his present majesty having, soon after his accession, spontaneously signified his consent, that his own hereditary revenues might be so disposed of as might best conduce to the utility and satisfaction of the public, and having graciously accepted the limited sum of 800000𝑙. per annum for the support of his civil list (and that also charged with three life annuities, to the princess of Wales, the duke of Cumberland, and the princess Amelia, to the amount of 77000𝑙.) the said hereditary and other revenues are now carried into and made a part of the aggregate fund, and the aggregate fund is charged with the payment of the whole annuity to the crown of 800000𝑙. per annum[154]. Hereby the revenues themselves, being put under the same care and management as the other branches of the public patrimony, will produce more and be better collected than heretofore; and the public is a gainer of upwards of 100000𝑙. per annum by this disinterested bounty of his majesty. The civil list, thus liquidated, together with the four millions and three quarters, interest of the national debt, and the two millions and a quarter produced from the sinking fund, make up the seven millions and three quarters per annum, neat money, which were before stated to be the annual produce of our perpetual taxes; besides the immense, though uncertain, sums arising from the annual taxes on land and malt, but which, at an average, may be calculated at more than two millions and a quarter; and, added to the preceding sum, make the clear produce of the taxes, exclusive of the charge of collecting, which are raised yearly on the people of this country, amount to upwards of ten millions sterling.
The expenses defrayed by the civil list are those that in any shape relate to civil government; as, the expenses of the houshold; all salaries to officers of state, to the judges, and every of the king’s servants; the appointments to foreign embassadors; the maintenance of the queen and royal family; the king’s private expenses, or privy purse; and other very numerous outgoings, as secret service money, pensions, and other bounties: which sometimes have so far exceeded the revenues appointed for that purpose, that application has been made to parliament to discharge the debts contracted on the civil list; as particularly in 1724, when one million was granted for that purpose by the statute 11 Geo. I. c. 17.
The civil list is indeed properly the whole of the king’s revenue in his own distinct capacity; the rest being rather the revenue of the public, or it’s creditors, though collected, and distributed again, in the name and by the officers of the crown: it now standing in the same place, as the hereditary income did formerly; and, as that has gradually diminished, the parliamentary appointments have encreased. The whole revenue of queen Elizabeth did not amount to more than 600000𝑙. a year[155]: that of king Charles I was[156] 800000𝑙. and the revenue voted for king Charles II was[157] 1200000𝑙. though complaints were made (in the first years at least) that it did not amount to so much[158]. But it must be observed, that under these sums were included all manner of public expenses, among which lord Clarendon in his speech to the parliament computed that the charge of the navy and land forces amounted annually to 800000𝑙. which was ten times more than before the former troubles[159]. The same revenue, subject to the same charges, was settled on king James II[160]: but by the encrease of trade, and more frugal management, it amounted on an average to a million and half per annum, (besides other additional customs, granted by parliament[161], which produced an annual revenue of 400000𝑙.) out of which his fleet and army were maintained at the yearly expense of[162] 1100000𝑙. After the revolution, when the parliament took into it’s own hands the annual support of the forces both maritime and military, a civil list revenue was settled on the new king and queen, amounting, with the hereditary duties, to 700000𝑙. per annum[163]; and the same was continued to queen Anne and king George I[164]. That of king George II, we have seen, was nominally augmented to[165] 800000𝑙. and in fact was considerably more. But that of his present majesty is expressly limited to that sum; and, by reason of the charges upon it, amounts at present to little more than 700000𝑙. And upon the whole it is doubtless much better for the crown, and also for the people, to have the revenue settled upon the modern footing rather than the antient. For the crown; because it is more certain, and collected with greater ease: for the people; because they are now delivered from the feodal hardships, and other odious branches of the prerogative. And though complaints have sometimes been made of the encrease of the civil list, yet if we consider the sums that have been formerly granted, the limited extent under which it is now established, the revenues and prerogatives given up in lieu of it by the crown, and (above all) the diminution of the value of money compared with what it was worth in the last century, we must acknowlege these complaints to be void of any rational foundation; and that it is impossible to support that dignity, which a king of Great Britain should maintain, with an income in any degree less than what is now established by parliament.
This finishes our enquiries into the fiscal prerogatives of the king; or his revenue, both ordinary and extraordinary. We have therefore now chalked out all the principal outlines of this vail title of the law, the supreme executive magistrate, or the king’s majesty, considered in his several capacities and points of view. But, before we intirely dismiss this subject, it may not be improper to take a short comparative review of the power of the executive magistrate, or prerogative of the crown, as it stood in former days, and as it stands at present. And we cannot but observe, that most of the laws for ascertaining, limiting, and restraining this prerogative have been made within the compass of little more than a century past; from the petition of right in 3 Car. I. to the present time. So that the powers of the crown are now to all appearance greatly curtailed and diminished since the reign of king James the first: particularly, by the abolition of the star chamber and high commission courts in the reign of Charles the first, and by the disclaiming of martial law, and the power of levying taxes on the subject, by the same prince: by the disuse of forest laws for a century past: and by the many excellent provisions enacted under Charles the second; especially, the abolition of military tenures, purveyance, and pre-emption; the habeas corpus act; and the act to prevent the discontinuance of parliaments for above three years: and, since the revolution, by the strong and emphatical words in which our liberties are asserted in the bill of rights, and act of settlement; by the act for triennial, since turned into septennial, elections; by the exclusion of certain officers from the house of commons; by rendering the seats of the judges permanent, and their salaries independent; and by restraining the king’s pardon from being pleaded to parliamentary impeachments. Besides all this, if we consider how the crown is impoverished and stripped of all it’s antient revenues, so that it greatly depends on the liberality of parliament for it’s necessary support and maintenance, we may perhaps be led to think, that the ballance is inclined pretty strongly to the popular scale, and that the executive magistrate has neither independence nor power enough left, to form that check upon the lords and commons, which the founders of our constitution intended.
But, on the other hand, it is to be considered, that every prince, in the first parliament after his accession, has by long usage a truly royal addition to his hereditary revenue settled upon him for his life; and has never any occasion to apply to parliament for supplies, but upon some public necessity of the whole realm. This restores to him that constitutional independence, which at his first accession seems, it must be owned, to be wanting. And then, with regard to power, we may find perhaps that the hands of government are at least sufficiently strengthened; and that an English monarch is now in no danger of being overborne by either the nobility or the people. The instruments of power are not perhaps so open and avowed as they formerly were, and therefore are the less liable to jealous and invidious reflections; but they are not the weaker upon that account. In short, our national debt and taxes (besides the inconveniences before-mentioned) have also in their natural consequences thrown such a weight of power into the executive scale of government, as we cannot think was intended by our patriot ancestors; who gloriously struggled for the abolition of the then formidable parts of the prerogative, and by an unaccountable want of foresight established this system in their stead. The entire collection and management of so vast a revenue, being placed in the hands of the crown, have given rise to such a multitude of new officers, created by and removeable at the royal pleasure, that they have extended the influence of government to every corner of the nation. Witness the commissioners, and the multitude of dependents on the customs, in every port of the kingdom; the commissioners of excise, and their numerous subalterns, in every inland district; the postmasters, and their servants, planted in every town, and upon every public road; the commissioners of the stamps, and their distributors, which are full as scattered and full as numerous; the officers of the salt duty, which, though a species of excise and conducted in the same manner, are yet made a distinct corps from the ordinary managers of that revenue; the surveyors of houses and windows; the receivers of the land tax; the managers of lotteries; and the commissioners of hackney coaches; all which are either mediately or immediately appointed by the crown, and removeable at pleasure without any reason assigned: these, it requires but little penetration to see, must give that power, on which they depend for subsistence, an influence most amazingly extensive. To this may be added the frequent opportunities of conferring particular obligations, by preference in loans, subscriptions, tickets, remittances, and other money-transactions, which will greatly encrease this influence; and that over those persons whose attachment, on account of their wealth, is frequently the most desirable. All this is the natural, though perhaps the unforeseen, consequence of erecting our funds of credit, and to support them establishing our present perpetual taxes: the whole of which is entirely new since the restoration in 1660; and by far the greatest part since the revolution in 1688. And the same may be said with regard to the officers in our numerous army, and the places which the army has created. All which put together gives the executive power so persuasive an energy with respect to the persons themselves, and so prevailing an interest with their friends and families, as will amply make amends for the loss of external prerogative.
But, though this profusion of offices should have no effect on individuals, there is still another newly acquired branch of power; and that is, not the influence only, but the force of a disciplined army: paid indeed ultimately by the people, but immediately by the crown; raised by the crown, officered by the crown, commanded by the crown. They are kept on foot it is true only from year to year, and that by the power of parliament: but during that year they must, by the nature of our constitution, if raised at all, be at the absolute disposal of the crown. And there need but few words to demonstrate how great a trust is thereby reposed in the prince by his people. A trust, that is more than equivalent to a thousand little troublesome prerogatives.
Add to all this, that, besides the civil list, the immense revenue of seven millions sterling, which is annually paid to the creditors of the public, or carried to the sinking fund, is first deposited in the royal exchequer, and thence issued out to the respective offices of payment. This revenue the people can never refuse to raise, because it is made perpetual by act of parliament: which also, when well considered, will appear to be a trust of great delicacy and high importance.
Upon the whole therefore I think it is clear, that, whatever may have become of the nominal, the real power of the crown has not been too far weakened by any transactions in the last century. Much is indeed given up; but much is also required. The stern commands of prerogative have yielded to the milder voice of influence; the slavish and exploded doctrine of non-resistance has given way to a military establishment by law; and to the disuse of parliaments has succeeded a parliamentary trust of an immense perpetual revenue. When, indeed, by the free operation of the sinking fund, our national debts shall be lessened; when the posture of foreign affairs, and the universal introduction of a well planned and national militia, will suffer our formidable army to be thinned and regulated; and when (in consequence of all) our taxes shall be gradually reduced; this adventitious power of the crown will slowly and imperceptibly dimihish, as it slowly and imperceptibly rose. But, till that shall happen, it will be our especial duty, as good subjects and good Englishmen, to reverence the crown, and yet guard against corrupt and servile influence from those who are intrusted with it’s authority; to be loyal, yet free; obedient, and yet independent; and, above every thing, to hope that we may long, very long, continue to be governed by a sovereign, who, in all those public acts that have personally proceeded from himself, hath manifested the highest veneration for the free constitution of Britain; hath already in more than one instance remarkably strengthened it’s outworks; and will therefore never harbour a thought, or adopt a persuasion, in any the remotest degree detrimental to public liberty.
↑ 2 Inst. 15.
↑ Stat. 17 Edw. II. c. 14. F. N. B. 32.
↑ Matth. Paris.
↑ 9 Hen. III. c. 5.
↑ 3 Edw. I. c. 21.
↑ Co. Litt. 67. 341.
↑ F. N. B. 230.
↑ Notes on F. N. B. above cited.
↑ page 113.
↑ Inst. 647.
↑ F. N. B. 176.
↑ 3 Inst. 154.
↑ Numb, xviii. 26.
↑ Ann. st. 1. c. 7.
↑ In like manner, by the civil law, the inheritances or fundi patrimoniales of the imperial crown could not be alienated, but only let to farm. Cod. l. 11. t. 61.
↑ 4 Inst. 273.
↑ Mod. Un. Hist. xxxiii. 220.
↑ Roger North, in his life of lord keeper North, (43, 44.) mentions an eyre, or iter, to have been held south of Trent soon after the restoration: but I have met with no report of it’s proceedings.
↑ 1 Jones. 267—298.
↑ Plowd. 315.
↑ Stiernh. de jure Sueonum, l. 2. c. 8. Gr. Coustum. cap. 17.
↑ 17 Edw. II. c. 11.
↑ Bracton. l. 3. c. 13. Britton. c. 17. Fleta. l. 1. c. 45 & 46.
↑ ch. 4. pag. 223.
↑ Dr & St. d. 2. c. 51.
↑ Spelm. Cod. apud Wilkins. 305.
↑ 26 May, A. D. 1174. 1 Rym. Foed. 36.
↑ Rog. Hoved. in Ric. I.
↑ In like manner Constantine the great, finding that by the imperial law the revenue of wrecks was given to the prince’s treasury or fiscus, restrained it by an edict (Cod. 11. 5. 1.) and ordered them to remain to the owners; adding this humane expostulation, “Quod enim jus habet fiscus in aliena calamitate, ut de re tam luctuosa compendium sectetur?”
↑ Bract. l. 3. c. 3.
↑ 3 Edw. I. c. 4.
↑ Flet. l. 1. c. 44. 2 Inst. 167.
↑ §. 28.
↑ 2 Inst. 168.
↑ Plowd. 166.
↑ 2 Inst. 168. Bro. Abr. tit. Wreck.
↑ 5 Rep. 106.
↑ Quae enim ves in tempestate, levandae navis causa, ejiciuntur, hae dominorum permanent. Quia palam est, eas non eo animo ejici, quod quis habere nolit. Inst. 2. 1. §. 48.
↑ 5 Rep. 108.
↑ Stiernh. de jure Sueon. l. 3. c. 5.
↑ F. N. B. 112.
↑ By the civil law, to destroy persons shipwrecked, or prevent their saving the ship, is capital. And to steal even a plank from a vessel in distress, or wrecked, makes the party liable to answer for the whole ship and cargo. (Ff. 47. 9. 3.) The laws also of the Wisigoths, and the most early Neapolitan constitutions, punished with the utmost severity all those who neglected to assist any ship in distress, or plundered any goods cast on shore. (Lindenbrog. Cod. LL. antiqu. 146. 715.)
↑ 2 Inst. 577.
↑ Plowd. 366.
↑ 3 Inst. 132. Dalt. Sheriffs, c. 16.
↑ Britt. c. 17. Finch. L. 177.
↑ l. 3. c. 3. §. 4.
↑ Bracton. l. 3. c. 3. 3 Inst. 133.
↑ Ff. 41. 1. 31.
↑ de jur. b. & p. l. 2. c. 8. §. 7.
↑ Glanv. l. 1. c. 2. Crag. 1. 16. 40.
↑ 3 Inst. 133.
↑ Cro. Eliz. 694.
↑ Finch. L. 212.
↑ Ibid.
↑ 5 Rep. 109.
↑ Fitzh. Abr. tit. Estray. 1. 3 Bulstr. 19.
↑ Mirr. c. 3. §. 19.
↑ 5 Rep. 108. Bro. Abr. tit. Estray. Cro. Eliz. 716.
↑ Stiernh. de jur. Gothor. l. 3. c. 5.
↑ Dalt. Sh. 79.
↑ Finch. L. 177.
↑ l. 1. c. 43.
↑ 7 Rep. 17.
↑ 1 Roll. Abr. 889.
↑ Cro. Jac. 147.
↑ Cro. Jac. 148. Noy. 119.
↑ l. 1. c. 12.
↑ 1 Hal. P. C. 419. Fleta. l. 1. c. 25.
↑ Fitzh. Abr. tit. Enditement. pl. 27. Staunf. P. C. 20, 21.
↑ 3 Inst. 57. 1 Hal. P. C. 422.
↑ Omnia, quae movent ad mortem, sunt Deo danda. Bracton. l. 3. c. 5.
↑ Exod. xxi. 28.
↑ Aeschin. contr. Ctesiph.
↑ 1 Hal. P. C. 422.
↑ 1 Hawk. P. C. c. 26.
↑ A similar rule obtained among the antient Goths. Si quis, me nesciente, quocunque meo telo vel instrumento in perniciem suam abutatur; vel ex aedibius meis cadat, vel incidat in puteum meum, quantumvis tectum et munitum, vel in cataractam, et sub molendino meo confringatur, ipse aliqua mulcta plectar; ut in parte infelicitatis meae numeratur, habuisse vel aedificasse aliquod quo homo periret. Stiernhook de jure Goth. l. 3. c. 4.
↑ Dr & St. d. 2. c. 51.
↑ 3 Inst. 57.
↑ 3 Inst. 58. 1 Hal. P. C. 423. Molloy de jur. maritim. 2. 225.
↑ Foster of homicide. 266.
↑ Flet. l. 1. c. 11. §. 10.
↑ Dyer. 302. Hutt. 17. Noy. 27.
↑ F. N. B. 232.
↑ 4 Rep. 126.
↑ F. N. B. 232.
↑ This power, though of late very rarely exerted, is still alluded to in common speech, by that usual expression of begging a man for a fool.
↑ 4 Inst. 203. Com. Journ. 1610.
↑ F. N. B. 233.
↑ Co. Litt. 42. Fleta. l. 6. c. 40.
↑ 1 Inst. 246.
↑ 3 P. Wms. 108.
↑ 2 P. Wms. 638.
↑ Solent praetores, si talem hominem invenerint, qui neque tempus neque sinem expensarum habet, sed bona sua dilacerando et dissipando profundit, curatorem ei dare, exemplo furiosi: et tamdiu erunt ambo in curatione, quamdiu vel furiosus sanitatem, vet ille bones mores, receperit. Ff. 27. 10. 1.
↑ Potter. Antiqu. b. 1. c. 26.
↑ Bro. Abr. tit. Ideot. 4.
↑ pag. 281.
↑ pag. 169.
↑ 2 Inst. 77. 4 Inst. 34.
↑ Hoved. A. D. 1188. Carte. i. 719. Hume. i. 329.
↑ A. D. 1232.
↑ See the second book of these commentaries.
↑ cap. 14.
↑ 9 Hen. III. c. 37.
↑ 25 Edw. I. c. 5 & 6. 34 Edw. I. st. 4. c. 1. 14 Edw. III. st. 2. c. 1.
↑ Madox. hist. exch. 480.
↑ 4 Inst. 33
↑ Hist. b. 2.
↑ 4 Inst. 33.
↑ Dalt. of sheriffs, 418. Gilb. hist. of exch. c. 4.
↑ 29 Nov. 4 Mar. 1642.
↑ One of these bills of assessment, in 1656, is preserved in Scobell’s collection, 400.
↑ Com. Journ. 26 Jun. 9 Dec. 1678.
↑ in the years 1732 and 1733.
↑ Dyer. 165.
↑ Dyer. 43. pl. 24.
↑ 2 Inst. 58, 59.
↑ Dav. 9.
↑ This appellation seems to be derived from the French word coustum, or coûtum, which signifies toll or tribute, and owes it’s own etymology to the word coust, which signifies price, charge, or, as we have adopted it in English, cost.
↑ 4 Inst. 29.
↑ Madox. hist. exch. 526. 532.
↑ Dav. 8. 2 Bulstr. 254.
↑ Dav. 11, 12.
↑ Ibid. 12.
↑ Hist. Rebell. b. 3.
↑ 16 Car. I. c. 8.
↑ Stat. 12 Car. II. c. 4. 11 Geo. I. c. 7.
↑ Hist. l. 13.
↑ Montesqu. Sp. L. b. 13. c. 8.
↑ Hist. b. 3.
↑ Com. Journ. 8 Oct. 1642.
↑ The translator and continuator of Petavius’s chronological history (Lond. 1659.) informs us, that it was first moved for, 28 Mar. 1643, by Mr Prynne. And it appears from the journals of the commons that on that day the house resolved itself into a committee to consider of raising money, in consequence of which the excise was afterwards voted. But Mr Prynne was not a member of parliament till 7 Nov. 1648; and published in 1654 “A protestation against the illegal, detestable, and oft-condemned tax and extortion of excise in general.” It is probably therefore a mistake of the printer for Mr Pymme, who was intended for chancellor of the exchequer under the earl of Bedford. (Lord Clar. b. 7.)
↑ Com. Journ. 17 May 1643.
↑ Lord Clar. b. 7.
↑ 30 May 1643. Dugdale of the troubles, 120.
↑ Ord. 14 Aug. 1649. c. 50. Scobell. 72. Stat. 1656. c. 19. Scobell. 453.
↑ Com. Journ. 28 Mar. 1642.
↑ Ibid. 7 Sept. 1644.
↑ Ibid. 21 Mar. 1649.
↑ Com. Journ. 21 Mar. 1649.
↑ Scobell. 358.
↑ Com. Journ. 9 Jun. 1657. Scobell. 511.
↑ Com. Journ. 17 Dec. 1660.
↑ Ibid. 22 Dec. 1660.
↑ Ibid. 16 Apr. 1735.
↑ Ibid. 26 Feb 1734.
↑ Ibid. 28 Mar. 1764.
↑ Mod. Un. Hist. xxiii. 463. Spelm. Gloss. tit. Fuage.
↑ Stat. 20 Geo. II. c. 3. 31 Geo. II. c. 22. 2 Geo. III. c. 8. 6 Geo. III. c. 38.
↑ Scobell. 313.
↑ Com. Journ. 14 Feb. 1661.
↑ 10 Ann. c. 19. §. 158. 12 Geo. I. c. 15. 33 Geo. II. c. 25.
↑ Pro tempore, pro spe, pro commode, minuitur eorum pretium atque augescit. Aretin. See Mod. Un. Hist. xxxvi. 116.
↑ Stat. 1 Geo. III. c. 1.
↑ Lord Clar. continuation. 163.
↑ Com. Journ. 4 Sept. 1660.
↑ Ibid.
↑ Ibid. 4 Jun. 1663. Lord Clar. ibid.
↑ Ibid. 165.
↑ Stat. 1 Jac. II. c. 1.
↑ Ibid. c. 3 & 4.
↑ Com. Journ. 1 Mar. 20 Mar. 1688.
↑ Ibid. 14 Mar. 1701.
↑ Ibid. 17 Mar. 1701. 11 Aug. 1714.
↑ Stat. 1 Geo. II. c. 1.
Chapter the ninth.
Of subordinate MAGISTRATES.
IN a former chapter of these commentaries[1] we distinguished magistrates into two kinds; supreme, or those in whom the sovereign power of the state resides; and subordinate, or those who act in an inferior secondary sphere. We have hitherto considered the former kind only, namely, the supreme legislative power or parliament, and the supreme executive power, which is the king: and are now to proceed to enquire into the rights and duties of the principal subordinate magistrates.
And herein we are not to investigate the powers and duties of his majesty’s great officers of state, the lord treasurer, lord chamberlain, the principal secretaries, or the like; because I do not know that they are in that capacity in any considerable degree the objects of our laws, or have any very important share of magistracy conferred upon them: except that the secretaries of state are allowed the power of commitment, in order to bring offenders to trial[2]. Neither shall I here treat of the office and authority of the lord chancellor, or the other judges of the superior courts of justice; because they will find a more proper place in the third part of these commentaries. Nor shall I enter into any minute disquisitions, with regard to the rights and dignities of mayors and aldermen, or other magistrates of particular corporations; because these are mere private and strictly municipal rights, depending entirely upon the domestic constitution of their respective franchises. But the magistrates and officers, whose rights and duties it will be proper in this chapter to consider, are such as are generally in use and have a jurisdiction and authority dispersedly throughout the kingdom: which are, principally, sheriffs; coroners; justices of the peace; constables; surveyors of highways; and overseers of the poor. In treating of all which I shall enquire into, first, their antiquity and original; next, the manner in which they are appointed and may be removed; and, lastly, their rights and duties. And first of sheriffs.
I. The sheriff is an officer of very great antiquity in this kingdom, his name being derived from two Saxon words, scir gerefa, the reeve, bailiff, or officer of the shire. He is called in Latin vice-comes, as being the deputy of the earl or comes; to whom the custody of the shire is said to have been committed at the first division of this kingdom into counties. But the earls in process of time, by reason of their high employments alid attendance on the king’s person, not being able to transact the business of the county, were delivered of that burden[3]; reserving to themselves the honour, but the labour was laid on the sheriff. So that now the sheriff does all the king’s business in the county; and though, he be still called vice-comes, yet he is entirely independent of, and not subject to the earl; the king by his letters patent committing custodiam comitatus to the sheriff, and him alone.
Sheriffs were formerly chosen by the inhabitants of the several counties. In confirmation of which it was ordained by statute 28 Edw. I. c. 8. that the people should have election of sheriffs in every shire, where the shrievalty is not of inheritance. For antiently in some counties the sheriffs were hereditary; as I apprehend they were in Scotland till the statute 20 Geo. II. c. 43; and still continue in the county of Westmorland to this day: the city of London having also the inheritance of the shrievalty of Middlesex vested in their body by charter[4]. The reason of these popular elections is assigned in the same statute, c. 13. “that the commons might chuse such as would not be a burthen to them.” And herein appears plainly a strong trace of the democratical part of our constitution; in which form of government it is an indispensable requisite, that the people should chuse their own magistrates[5]. This election was in all probability not absolutely vested in the commons, but required the royal approbation. For in the Gothic constitution, the judges of their county courts (which office is executed by our sheriff) were elected by the people, but confirmed by the king: and the form of their election was thus managed; the people, or incolae territorii, chose twelve electors, and they nominated three persons, ex quibus rex unum confirmabat[6]. But, with us in England, these popular elections, growing tumultuous, were put an end to by the statute 9 Edw. II. st. 2. which enacted, that the sheriffs should from thenceforth be assigned by the chancellor, treasurer, and the judges; as being persons in whom the same trust might with confidence be reposed. By statutes 14 Edw. III. c. 7. 23 Hen. VI. c. 8. and 21 Hen. VIII. c. 20. the chancellor, treasurer, president of the king’s council, chief justices, and chief baron, are to make this election; and that on the morrow of All Souls in the exchequer. And the king’s letters patent, appointing the new sheriffs, used commonly to bear date the sixth day of November[7]. The statute of Cambridge, 12 Ric. II. c. 2. ordains, that the chancellor, treasurer, keeper of the privy seal, steward of the king’s house, the king’s chamberlain, clerk of the rolls, the justices of the one bench and the other, barons of the exchequer, and all other that shall be called to ordain, name, or make justices of the peace, sheriff’s, and other officers of the king, shall be sworn to act indifferently, and to name no man that sueth to be put in office, but such only as they shall judge to be the best and most sufficient. And the custom now is (and has been at least ever since the time of Fortescue[8], who was chief justice and chancellor to Henry the sixth) that all the judges, together with the other great officers, meet in the exchequer chamber on the morrow of All Souls yearly, (which day is now altered to the morrow of St. Martin by the last act for abbreviating Michaelmas term) and then and there propose three persons to the king, who afterwards appoints one of them to be sheriff. This custom, of the twelve judges proposing three persons, seems borrowed from the Gothic constitution before-mentioned; with this difference, that among the Goths the twelve nominors were first elected by the people themselves. And this usage of ours at it’s first introduction, I am apt to believe, was founded upon some statute, though not now to be found among our printed laws: first, because it is materially different from the directions of all the statutes before-mentioned; which it is hard to conceive that the judges would have countenanced by their concurrence, or that Fortescue would have inserted in his book, unless by the authority of some statute: and also, because a statute is expreissy referred to in the record, which sir Edward Coke tells us[9] he transcribed from the council book of 3 Mar. 34 Hen. VI. and which is in substance as follows. The king had of his own authority appointed a man sheriff of Lincolnshire, which office he refused to take upon him: whereupon the opinions of the judges were taken, what should be done in this behalf. And the two chief justices, sir John Fortescue and sir John Prisot, delivered the unanimous opinion of them all; “that the king did an error when he made a person sheriff, that was not chosen and presented to him according to the statute; that the person refusing was liable to no fine for disobedience, as if he had been one of the three persons chosen according to the tenor of the statute; that they would advise the king to have recourse to the three persons that were chosen according to the statute, or that some other thristy man be intreated to occupy the office for this year; and that, the next year, to eschew such inconveniences, the order of the statute in this behalf may be observed.” But, notwithstanding this unanimous resolution of all the judges of England, thus entered in the council book, and the statute 34 & 35 Hen. VIII. c. 26. §. 61. which expressly recognizes this to be the law of the land, some of our writers[10] have affirmed, that the king, by his prerogative, may name whom he pleases to be sheriff, whether chosen by the judges or no. This is grounded on a very particular case in the fifth year of queen Elizabeth, when, by reason of the plague, there was no Michaelmas term kept at Westminster; so that the judges could not meet there in crastino animarwn to nominate the sheriffs: whereupon the queen named them herself, without such previous assembly, appointing for the most part one of the two remaining in the last year’s list[11]. And this case, thus circumstanced, is the only authority in our books for the making these extraordinary sheriffs. It is true, the reporter adds, that it was held that the queen by her prerogative might make a sheriff without the election of the judges, non obstante aliquo statuto in contrarium: but the doctrine of non obstante’s, which sets the prerogative above the laws, was effectually demolished by the bill of rights at the revolution, and abdicated Westminster-hall when king James abdicated the kingdom. However, it must be acknowleged, that the practice of occasionally naming what are called pocket-sheriffs, by the sole authority of the crown, hath been uniformly continued to this day.
Sheriffs, by virtue of several old statutes, are to continue in their office no longer than one year; and yet it hath been said[12] that a sheriff may be appointed durante bene placito, or during the king’s pleasure; and so is the form of the royal writ[13]. Therefore, till a new sheriff be named, his office cannot be determined, unless by his own death, or the demise of the king; in which last case it was usual for the successor to send a new writ to the old sheriff[14]: but now by statute 1 Ann. st. 1. c. 8. all officers appointed by the preceding king may hold their offices for six months after the king’s demise, unless sooner displaced by the successor. We may farther observe, that by statute 1 Ric. II. c. 11. no man, that has served the office of sheriff for one year, can be compelled to serve the same again within three years after.
We shall find it is of the utmost importance to have the sheriff appointed according to law, when we consider his power and duty. These are either as a judge, as the keeper of the king’s peace, as a ministerial officer of the superior courts of justice, or as the king’s bailiff.
In his judicial capacity he is to hear and determine all causes of forty shillings value and under, in his county court, of which more in it’s proper place: and he has also judicial power in divers other civil cases[15]. He is likewise to decide the elections of knights of the shire, (subject to the control of the house of commons) of coroners, and of verderors; to judge of the qualification of voters, and to return such as he shall determine to be duly elected.
As the keeper of the king’s peace, both by common law and special commission, he is the first man in the county, and superior in rank to any nobleman therein, during his office[16]. He may apprehend, and commit to prison, all persons who break the peace, or attempt to break it: and may bind any one in a recognizance to keep the king’s peace. He may, and is bound ex officio to, pursue and take all traitors, murderers, felons, and other misdoers, and commit them to gaol for safe custody. He is also to defend his county against any of the king’s enemies when they come into the land: and for this purpose, as well as for keeping the peace and pursuing felons, he may command all the people of his county to attend him; which is called the posse comitatus, or power of the county[17]: which summons every person above fifteen years old, and under the degree of a peer, is bound to attend upon warning[18], under pain of fine and imprisonment[19]. But though the sheriff is thus the principal conservator of the peace in his county, yet, by the express directions of the great charter[20], he, together with the constable, coroner, and certain other officers of the king, are forbidden to hold any pleas of the crown, or, in other words, to try any criminal offence. For it would be highly unbecoming, that the executioners of justice should be also the judges; should impose, as well as levy, fines and amercements; should one day condemn a man to death, and personally execute him the next. Neither may he act as an ordinary justice of the peace during the time of his office[21]: for this would be equally inconsistent; he being in many respects the servant of the justices.
In his ministerial capacity the sheriff is bound to execute all process issuing from the king’s courts of justice. In the commencement of civil causes, he is to serve the writ, to arrest, and to take bail; when the cause comes to trial, he must summon and return the jury; when it is determined, he must see the judgment of the court carried into execution. In criminal matters, he also arrests and imprisons, he returns the jury, he has the custody of the delinquent, and he executes the sentence of the court, though it extend to death itself.
As the king’s bailiff, it is his business to preserve the rights of the king within his bailiwick; for so his county is requently called in the writs: a word introduced by the princes of the Norman line; in imitation of the French, whose territory is divided into bailiwicks, as that of England into counties[22]. He must seise to the king’s use all lands devolved to the crown by attainder or escheat; must levy all fines and forfeitures; must seise and keep all waifs, wrecks, estrays, and the like, unless they be granted to some subject; and must also collect the king’s rents within his bailiwick, if commanded by process from the exchequer[23].
To execute these various offices, the sheriff has under him many inferior officers; an under-sheriff, bailiffs, and gaolers; who must neither buy, sell, nor farm their offices, on forfeiture of 500𝑙.[24]
The under-sheriff usually performs all the duties of the office; a very few only excepted, where the personal presence of the high-sheriff is necessary. But no under-sheriff sshall abide in his office above one year[25]; and if he does, by statute 23 Hen. VI. c. 8. he forfeits 200𝑙. a very large penalty in those early days. And no under-sheriff or sheriff’s officer shall practice as an attorney, during the time he continues in such office[26]: for this would be a great inlet to partiality and oppression. But these salutary regulations are shamefully evaded, by practicing in the names of other attorneys, and putting in sham deputies by way of nominal under-sheriffs: by reason of which, says Dalton[27], the under-sheriffs and bailiffs do grow so cunning in their several places, that they are able to deceive, and it may well be feared that many of them do deceive, both the king, the high-sheriff, and the county.
Bailiffs, or sheriff’s officers, are either bailiffs of hundreds, or special bailiffs. Bailiffs of hundreds are officers appointed over those respective districts by the sheriffs, to collect fines therein; to summon juries; to attend the judges and justices at the assises, and quarter sessions; and also to execute writs and process in the several hundreds. But, as these are generally plain men, and not thoroughly skilful in this latter part of their office, that of serving writs, and making arrests and executions, it is now usual to join special bailiffs with them; who are generally mean persons employed by the sheriffs on account only of their adroitness and dexterity in hunting and seising their prey. The sheriff being answerable for the misdemesnors of these bailiffs, they are therefore usually bound in a bond for the due execution of their office, and thence are called bound-bailiffs; which the common people have corrupted into a much more homely appellation.
Gaolers are also the servants of the sheriff, and he must be responsible for their conduct. Their business is to keep safely all such persons as are committed to them by lawful warrant: and, if they suffer any such to escape, the sheriff shall answer it to the king, if it be a criminal matter; or, in a civil case, to the party injured[28]. And to this end the sheriff must[29] have lands sufficient within the county to answer the king and his people. The abuses of gaolers and sheriff’s officers toward the unfortunate persons in their custody are well restrained and guarded against by statute 32 Geo. II. c. 28.
The vast expense, which custom had introduced in serving the office of high-sheriff, was grown such a burthen to the subject, that it was enacted, by statute 13 & 14 Car. II. c. 21. that no sheriff should keep any table at the assises, except for his own family, or give any presents to the judges or their servants, or have more than forty men in livery; yet, for the sake of safety and decency, he may not have less than twenty men in England and twelve in Wales; upon forfeiture, in any of these cases, of 200𝑙.
II. The coroner’s is also a very antient office at the common law. He is called coroner, coronator, because he hath principally to do with pleas of the crown, or such wherein the king is more immediately concerned[30]. And in this light the lord chief justice of the king’s bench is the principal coroner in the kingdom, and may (if he pleases) exercise the jurisdiction of a coroner in any part of the realm[31]. But there are also particular coroners for every county of England; usually four, but sometimes six, and sometimes fewer[32]. This officer[33] is of equal antiquity with the sheriff; and was ordained together with him to keep the peace, when the earls gave up the wardship of the county.
He is still chosen by all the freeholders in the county court, as by the policy of our antient laws the sheriffs, and conservators of the peace, and all other officers were, who were concerned in matters that affected the liberty of the people[34]; and as verderors of the forests still are, whose business it is to stand between the prerogative and the subject in the execution of the forest laws. For this purpose there is a writ at common law de coronatore eligendo[35]: in which it is expressly commanded the sheriff, “quod talem eligi faciat, qui melius et sciat, et velit, et possit, officio illi intendere.” And, in order to effect this the more surely, it was enacted by the statute[36] of Westm. 1. that none but lawful and discreet knights should be chosen: and there was an instance in the 5 Edw. III. of a man being removed from this office, because he was only a merchant[37]. But it seems it is now sufficient if a man hath lands enough to be made a knight, whether he be really knighted or not[38]: for the coroner ought to have estate sufficient to maintain the dignity of his office, and answer any fines that may be set upon him for his misbehaviour[39]; and if he hath not enough to answer, his fine shall be levied on the county, as a punishment for electing an insufficient officer[40]. Now indeed, through the culpable neglect of gentlemen of property, this office has been suffered to fall into disrepute, and get into low and indigent hands: so that, although formerly no coroners would condescend to be paid for serving their country, and they were by the aforesaid statute of Westm. 1. expressly forbidden to take a reward, under pain of great forfeiture to the king; yet for many years past they have only desired to be chosen for the sake of their perquisites; being allowed fees for their attendance by the statute 3 Hen. VII. c. 1. which sir Edward Coke complains of heavily[41]; though since his time those fees have been much enlarged[42].
The coroner is chosen for life: but may be removed, either by being made sheriff, or chosen verderor, which are offices incompatible with the other; or by the king’s writ de coronatore exonerando, for a cause to be therein assigned, as that he is engaged in other business, is incapacitated by years or sickness, hath not a sufficient estate in the county, or lives in an inconvenient part of it[43]. And by the statute 25 Geo. II. c. 29. extortion, neglect, or misbehaviour, are also made causes of removal.
The office and power of a coroner are also, like those of a sheriff, either judicial or ministerial; but principally judicial. This is in great measure ascertained by statute 4 Edw. I. de officio coronatoris; and consists, first, in enquiring, when any person is slain, or dies suddenly, or in prison, concerning the manner of his death. And this must be “super visum corporis[44];” for, if the body be not found, the coroner cannot fit[45]. He must also fit at the very place where the death happened; and his enquiry is made by a jury from four, five, or six of the neighbouring towns, over whom he is to preside. If any be found guilty by this inquest of murder, he is to commit to prison for farther trial, and is also to enquire concerning their lands, goods and chattels, which are forfeited thereby: but, whether it be murder or not, he must enquire whether any deodand has accrued to the king, or the lord of the franchise, by this death: and must certify the whole of this inquisition to the court of king’s bench, or the next assises. Another branch of his office is to enquire concerning shipwrecks; and certify whether wreck or not, and who is in possession of the goods. Concerning treasure-trove, he is also to enquire who were the finders, and where it is, and whether any one be suspected of having found and concealed a treasure; “and that may be well perceived (saith the old statute of Edw. I.) where one liveth riotously, hunting taverns, and hath done so of long time:” whereupon he might be attached, and held to bail, upon this suspicion only.
The ministerial office of the coroner is only as the sheriff’s substitute. For when just exception can be taken to the sheriff, for suspicion of partiality, (as that he is interested in the suit, or of kindred to either plaintiff or defendant) the process must then be awarded to the coroner, instead of the sheriff, for execution of the king’s writs[46].
III. The next species of subordinate magistrates, whom I am to consider, are justices of the peace; the principal of whom is the custos rotulorum, or keeper of the records of the county. The common law hath ever had a special care and regard for the conservation of the peace; for peace is the very end and foundation of civil society. And therefore, before the present constitution of justices was invented, there were peculiar officers appointed by the common law for the maintenance of the public peace. Of these some had, and still have, this power annexed to other offices which they hold; others had it merely by itself, and were thence named custodes or conservatores pacis. Those that were so virtute officii still continue; but the latter sort are superseded by the modern justices.
The king’s majesty[47] is, by his office and dignity royal, the principal conservator of the peace within all his dominions; and may give authority to any other to see the peace kept, and to punish such as break it: hence it is usually called the king’s peace. The lord chancellor or keeper, the lord treasurer, the lord high steward of England, the lord mareschal, and lord high constable of England (when any such officers are in being) and all the justices of the court of king’s bench (by virtue of their offices) and the master of the rolls (by prescription) are general conservators of the peace throughout the whole kingdom, and may commit all breakers of it, or bind them in recognizances to keep it[48]: the other judges are only so in their own courts. The coroner is also a conservator of the peace within his own county[49]; as is also the sheriff[50]; and both of them may take a recognizance or security for the peace. Constables, tythingmen, and the like, are also conservators of the peace within their own jurisdictions; and may apprehend all breakers of the peace, and commit them till they find sureties for their keeping it[51].
Those that were, without any office, simply and merely conservators of the peace, either claimed that power by prescription[52] or were bound to exercise it by the tenure of their lands[53]; or, lastly, were chosen by the freeholders in full county court before the sheriff; the writ for their election directing them to be chosen “de probioribus et potentioribus comitatus sui in custodes pacis[54].” But when queen Isabel, the wife of Edward II, had contrived to depose her husband by a forced resignation of the crown, and had set up his son Edward III in his place; this, being a thing then without example in England, it was feared would much alarm the people; especially as the old king was living, though hurried about from castle to castle; till at last he met with an untimely death. To prevent therefore any risings, or other disturbance of the peace, the new king sent writs to all the sheriffs in England, the form of which is preserved by Thomas Walsingham[55], giving a plausible account of the manner of his obtaining the crown; to wit, that it was done ipsius patris beneplacito: and withal commanding each sheriff that the peace be kept throughout his bailiwick, on pain and peril of disinheritance and loss of life and limb. And in a few weeks after the date of these writs, it was ordained in parliament[56], that, for the better maintaining and keeping of the peace in every county, good men and lawful, which were no maintainers of evil, or barretors in the country, should be assigned to keep the peace. And in this manner, and upon this occasion, was the election of the conservators of the peace taken from the people, and given to the king[57]; this alignment being construed to be by the king’s commission[58]. But still they were called only conservators, wardens, or keepers of the peace, till the statute 34 Edw. III. c. 1. gave them the power of trying felonies; and then they acquired the more honorable appellation of justices[59].
These justices are appointed by the king’s special commission under the great seal, the form of which was settled by all the judges, A. D. 1590[60]. This appoints them all[61], jointly and severally, to keep the peace, and any two or more of them to enquire of and determine felonies, and other misdemesnors: in which number some particular justices, or one of them, are directed to be always included, and no business to be done without their presence; the words of the commission running thus, “quorum aliquem vestrum, A. B. C. D. &c. unum esse volumus;” whence the persons so named are usually called justices of the quorum. And formerly it was customary to appoint only a select number of justices, eminent for their skill and discretion, to be of the quorum; but now the practice is to advance almost all of them to that dignity, naming them all over again in the quorum clause, except perhaps only some one inconsiderable person for the sake of propriety: and no exception is now allowable, for not expressing in the form of warrants, &c, that the justice who issued them is of the quorum[62].
Touching the number and qualifications of these justices, it was ordained by statute 18 Edw. III. c. 2. that two, or three, of the best reputation in each county shall be assigned to be keepers of the peace. But these being found rather too few for that purpose, it was provided by statute 34 Edw. III. c. 1. that one lord, and three, or four, of the most worthy men in the county, with some learned in the law, shall be made justices in every county. But afterwards the number of justices, through the ambition of private persons, became so large, that it was thought necessary by statute 12 Ric. II. c. 10. and 14 Ric. II. c. 11. to restrain them at first to six, and afterwards to eight only. But this rule is now disregarded, and the cause seems to be (as Lambard observed long ago[63]) that the growing number of statute laws, committed from time to time to the charge of justices of the peace, have occasioned also (and very reasonably) their encrease to a larger number. And, as to their qualifications, the statutes just cited direct them to be of the best reputation, and most worthy men in the county: and the statute 13 Ric. II. c. 7. orders them to be of the most sufficient knights, esquires, and gentlemen of the law. Also by statute 2 Hen.V. st. 1. c. 4. and st. 2. c. 1. they must be resident in their several counties. And because, contrary to these statutes, men of small substance had crept into the commission, whose poverty made them both covetous and contemptible, it was enacted by statute 18 Hen. VI. c. 11. that no justice should be put in commisson, if he had not lands to the value of 20𝑙. per annum. And, the rate of money being greatly altered since that time, it is now enacted by statute 5 Geo. II. c. 11. and every justice, except as is therein excepted, shall have 100𝑙. per annum clear of all deductions; and, if he acts without such qualification, he shall forfeit 100𝑙. This qualification[64] is almost an equivalent to the 20𝑙. per annum required in Henry the sixth’s time: and of this[65] the justice must now make oath. Also it is provided by the act 5 Geo. II. that no practising attorney, solicitor, or proctor, shall be capable of acting as a justice of the peace.
As the office of these justices is conferred by the king, so it subsists only during his pleasure; and is determinable, 1. By the demise of the crown; that is, in six months after[66]. 2. By express writ under the great seal[67], discharging any particular person from being any longer justice. 3. By superseding the commission by writ of supersedeas, which suspends the power of all the justices, but does not totally destroy it; seeing it may be revived again by another writ, called a procedendo. 4. By a new commission, which virtually, though silently, discharges all the former justices that are not included therein; for two commissions cannot subsist at once. 5. By accession of the office of sheriff or coroner[68]. Formerly it was thought, that if a man was named in any commission of the peace, and had afterwards a new dignity conferred upon him, that this determined his office; he no longer answering the description of the commission: but now[69] it is provided, that notwithstanding a new title of dignity, the justice on whom it is conferred shall still continue a justice.
The power, office, and duty of a justice of the peace depend on his commission, and on the several statutes, which have created objects of his jurisdiction. His commission, first, empowers him singly to conserve the peace; and thereby gives him all the power of the antient conservators at the common law, in suppressing riots and affrays, in taking securities for the peace, and in apprehending and committing felons and other inferior criminals. It also empowers any two or more of them to hear and determine all felonies and other offences; which is the ground of their jurisdiction at sessions, of which more will be said in it’s proper place. And as to the powers given to one, two, or more justices by the several statutes, which from time to time have heaped upon them such an infinite variety of business, that few care to undertake, and fewer understand, the office; they are such and of so great importance to the public, that the country is greatly obliged to any worthy magistrate, that without sinister views of his own will engage in this troublesome service. And therefore, if a well meaning justice makes any undesigned slip in his practice, great lenity and indulgence are shewn to him in the courts of law; and there are many statutes made to protect him in the upright discharge of his office[70]: which, among other privileges, prohibit such justices from being sued for any oversights without notice beforehand; and stop all suits begun, on tender made of sufficient amends. But, on the other hand, any malicious or tyrannical abuse of their office is sure to be severely punished; and all persons who recover a verdict against a justice, for any wilful or malicious injury, are entitled to double costs.
It is impossible upon our present plan to enter minutely into the particulars of the accumulated authority, thus committed to the charge of these magistrates. I must therefore refer myself at present to such subsequent parts of these commentaries, as will in their turns comprize almost every object of the justices’ jurisdiction: and in the mean time recommend to the student the perusal of Mr Lambard’s eirenarcha, and Dr Burn’s justice of the peace; wherein he will find every thing relative to this subject, both in antient and modern practice, collected with great care and accuracy, and disposed in a most clear and judicious method.
I shall next consider some officers of lower rank than those which have gone before, and of more confined jurisdiction; but still such as are universally in use through every part of the kingdom.
IV. Fourthly, then, of the constable. The word constable is frequently said to be derived from the Saxon, koning-staple, and to signify the support of the king. But, as we borrowed the name as well as the office of constable from the French, I am rather inclined to deduce it, with sir Henry Spelman and Dr Cowel, from that language, wherein it is plainly derived from the Latin comes stabuli, an officer well known in the empire; so called because, like the great constable of France, as well as the lord high constable of England, he was to regulate all matters of chivalry, tilts, turnaments, and seats of arms, which were performed on horseback. This great office of lord high constable hath been disused in England, except only upon great and solemn occasions, as the king’s coronation and the like, ever since the attainder of Stafford duke of Buckingham under king Henry VIII; as in France it was suppressed about a century after by an edict of Louis XIII[71]: but from his office, says Lambard[72], this lower constableship was at first drawn and fetched, and is as it were a very finger of that hand. For the statute of Winchester[73], which first appoints them, directs that, for the better keeping of the peace, two constables in every hundred and franchise shall inspect all matters relating to arms and armour.
Constables are of two sorts, high constables, and petty constables. The former were first ordained by the statute of Winchester, as before-mentioned; and are appointed at the court leets of the franchise or hundred over which they preside, or, in default of that, by the justices at their quarter sessions; and are removeable by the same authority that appoints them[74]. The petty constables are inferior officers in every town and parish, subordinate to the high constable of the hundred, first instituted about the reign of Edward III[75]. These petty constables have two offices united in them; the one antient, the other modern. Their antient office is that of headborough, tithing-man, or borsholder; of whom we formerly spoke[76], and who are as antient as the time of king Alfred: their more modern office is that of constable merely; which was appointed (as was observed) so lately as the reign of Edward III, in order to assist the high constable[77]. And in general the antient headboroughs, tithing-men, and borsholders, were made use of to serve as petty constables; though not so generally, but that in many places they still continue distinct officers from the constable. They are all chosen by the jury at the court leet; or, if no court leet be held, are appointed by two justices of the peace[78].
The general duty of all constables, both high and petty, as well as of the other officers, is to keep the king’s peace in their several districts; and to that purpose they are armed with very large powers, of arresting, and imprisoning, of breaking open houses, and the like: of the extent of which powers, considering what manner of men are for the most part put upon these offices, it is perhaps very well that they are generally kept in ignorance. One of their principal duties, arising from the statute of Winchester, which appoints them, is to keep watch and ward in their respective jurisdictions. Ward, guard, or custodia, is chiefly intended of the day time, in order to apprehend rioters, and robbers on the highways; the manner of doing which is left to the discretion of the justices of the peace and the constable[79], the hundred being however answerable for all robberies committed therein, by day light, for having kept negligent guard. Watch is properly applicable to the night only, (being called among our Teutonic ancestors wacht or wacta[80]) and it begins at the time when ward ends, and ends when that begins: for, by the statute of Winchester, in walled towns the gates shall be closed from sunsetting to sunrising, and watch shall be kept in every borough and town, especially in the summer season, to apprehend all rogues, vagabonds, and night-walkers, and make them give an account of themselves. The constable may appoint watchmen at his discretion, regulated by the custom of the place; and these, being his deputies, have for the time being the authority of their principal. But, with regard to the infinite number of other minute duties, that are laid upon constables by a diversity of statutes, I must again refer to Mr Lambard and Dr Burn; in whose compilations may be also seen, what powers and duties belong to the constable or tithing-man indifferently, and what to the conslable only: for the constable may do whatever the tithing-man may; but it does not hold e converso; for the tithing-man has not an equal power with the constable.
V. We are next to consider the surveyors of the highways. Every parish is bound of common right to keep the high roads, that go through it, in good and sufficient repair; unless by reason of the tenure of lands, or otherwise, this care is consigned to some particular private person. From this burthen no man was exempt by our antient laws, whatever other immunities he might enjoy: this being part of the trinoda necessitas, to which every man’s estate was subject; viz. expeditio contra hostem, arcium constructio, et pontium reparatio: for, though the reparation of bridges only is expressed, yet that of roads also must be understood; as in the Roman law, ad instructiones reparationesque itinerum et pontium, nullum genus hominum, nulliusque dignitatis ac venerationis meritis, cessare oportet[81]. And indeed now, for the most part, the care of the roads only seems to be left to parishes; that of bridges being in great measure devolved upon the county at large, by statute 22 Hen. VIII. c. 5. If the parish neglected these repairs, they might formerly, as they may still, be indicted for such their neglect: but it was not then incumbent on any particular officer to call the parish together, and set them upon this work; for which reason by the statute 2 & 3 Ph. & M. c. 8. surveyors of the highways were ordered to be chosen in every parish[82].
These surveyors were originally, according to the statute of Philip and Mary, to be appointed by the constable and churchwardens of the parish; but now[83] they are constituted by two neighbouring justices, out of such substantial inhabitants as have either 10𝑙. per annum of their own, or rent 30𝑙. a year, or are worth in personal estate 100𝑙.
Their office and duty consists in putting in execution a variety of statutes for the repairs of the highways; that is, of ways leading from one town to another: by which it is enacted, 1. That they may remove all annoyances in the highways, or give notice to the owner to remove them; who is liable to penalties on non-compliance. 2. They are to call together all the inhabitants of the parish, six days in every year, to labour in repairing the highways; all persons keeping draughts, or occupying lands, being obliged to send a team for every draught, and for every 50𝑙. a year, which they keep or occupy; and all other persons to work or find a labourer. The work must be completed before harvest; as well for providing a good road for carrying in the corn, as also because all hands are then supposed to be employed in harvest work. And every cartway must be made eight feet wide at the least[84]; and may be increased by the quarter sessions to the breadth of four and twenty feet. 3. The surveyors may lay out their own money in purchasing materials for repairs, where there is not sufficient within the parish, and shall be reimbursed by a rate, to be allowed at a special sessions. 4. In case the personal labour of the parish be not sufficient, the surveyors, with the content of the quarter sessions, may levy a rate (not exceeding 6d. in the pound) on the parish, in aid of the personal duty; for the due application of which they are to account upon oath. As for turnpikes, which are now universally introduced in aid of such rates, and the law relating to them, these depend entirely on the particular powers granted in the several road acts, and therefore have nothing to do with this compendium of general law.
VI. I proceed therefore, lastly, to consider the overseers of the poor; their original, appointment, and duty.
The poor of England, till the time of Henry VIII, subsisted entirely upon private benevolence, and the charity of welldisposed christians. For, though it appears by the mirrour[85], that by the common law the poor were to be “sustained by parsons, rectors of the church, and the parishioners; so that none of them dye for default of sustenance;” and though by the statutes 12 Ric. II. c. 7. and 19 Hen. VII. c. 12. the poor are directed to abide in the cities or towns wherein they were born, or such wherein they had dwelt for three years (which seem to be the first rudiments of parish settlements) yet till the statute 26 Hen. VIII c. 26. I find no compulsory method chalked out for this purpose: but the poor seem to have been left to such relief as the humanity of their neighbours would afford them. The monasteries were, in particular, their principal resource; and, among other bad effects which attended the monastic institutions, it was not perhaps one of the least (though frequently esteemed quite otherwise) that they supported and fed a very numerous and very idle poor, whose sustenance depended upon what was daily distributed in alms at the gates of the religious houses. But, upon the total dissolution of these, the inconvenience of thus encouraging the poor in habits of indolence and beggary was quickly felt throughout the kingdom: and abundance of statutes were made in the reign of king Henry the eighth, for providing for the poor and impotent; which, the preambles to some of them recite, had of late years strangely increased. These poor were principally of two sorts: sick and impotent, and therefore unable to work; idle and sturdy, and therefore able, but not willing, to exercise any honest employment. To provide in some measure for both of these, in and about the metropolis, his son Edward the sixth founded three royal hospitals; Christ’s, and St. Thomas’s for the relief of the impotent through infancy or sickness; and Bridewell for the punishment and employment of the vigorous and idle. But these were far from being sufficient for the care of the poor throughout the kingdom at large; and therefore, after many other fruitless experiments, by statute 43 Eliz. c. 2. overseers of the poor were appointed in every parish.
By virtue of the statute last mentioned, these overseers are to be nominated yearly in Easter-week, or within one month after, (though a subsequent nomination will be valid[86]) by two justices dwelling near the parish. They must be substantial housholders, and so expressed to be in the appointment of the justices[87].
Their office and duty, according to the same statute, are principally these: first, to raise competent sums for the necessary relief of the poor, impotent, old, blind, and such other, being poor and not able to work: and, secondly, to provide work for such as are able, and cannot otherwise get employment: but this latter part of their duty, which, according to the wise regulations of that salutary statute, should go hand in hand with the other, is now most shamefully neglected. However, for these joint purposes, they are empowered to make and levy rates upon the several inhabitants of the parish, by the same act of parliament; which has been farther explained and enforced by several subsequent statutes.
The two great objects of this statute seem to have been, 1. To relieve the impotent poor, and them only. 2. To find employment for such as are able to work: and this principally by providing stocks to be worked up at home, which perhaps might be more beneficial than accumulating all the poor in one common work-house; a practice which tends to destroy all domestic connexions (the only felicity of the honest and industrious labourer) and to put the sober and diligent upon a level, in point of their earnings, with those who are dissolute and idle. Whereas, if none were to be relieved but those who are incapable to get their livings, and that in proportion to their incapacity; if no children were to be removed from their parents, but such as are brought up in rags and idleness; and if every poor man and his family were employed whenever they requested it, and were allowed the whole profits of their labour; — a spirit of chearful industry would soon diffuse itself through every cottage; work would become easy and habitual, when absolutely necessary to their daily subsistence; and the most indigent peasant would go through his task without a murmur, if assured that he and his children (when incapable of work through infancy, age, or infirmity) would then, and then only, be intitled to support from his opulent neighbours.
This appears to have been the plan of the statute of queen Elizabeth; in which the only defect was confining the management of the poor to small, parochial, districts; which are frequently incapable of furnishing proper work, or providing an able director. However, the laborious poor were then at liberty to seek employment wherever it was to be had; none being obliged to reside in the places of their settlement, but such as were unable or unwilling to work; and those places of settlement being only such where they were born, or had made their abode, originally for three years[88], and afterwards (in the case of vagabonds) for one year only[89].
After the restoration a very different plan was adopted, which has rendered the employment of the poor more difficult, by authorizing the subdivision of parishes; has greatly increased their number, by confining them all to their respective districts; has given birth to the intricacy of our poor-laws, by multiplying and rendering more easy the methods of gaining settlements; and, in consequence, has created an infinity of expensive law-suits between contending neighbourhoods, concerning those settlements and removals. By the statute 13 & 14 Car. II. c. 12. a legal settlement was declared to be gained by birth, or by inhabitancy, apprenticeship, or service, for forty days; within which period all intruders were made removeable from any parish by two justices of the peace, unless they settled in a tenement of the annual value of 10𝑙. The frauds, naturally consequent upon this provision, which gave a settlement by so short a residence, produced the statute 1 Jac. II. c. 17. which directed notice in writing to be delivered to the parish officers, before a settlement could be gained by such residence. Subsequent provisions allowed other circumstances of notoriety to be equivalent to such notice given; and those circumstances have from time to time been altered, enlarged, or restrained, whenever the experience of new inconveniences, arising daily from new regulations, suggested the necessity of a remedy. And the doctrine of certificates was invented, by way of counterpoise, to restrain a man and his family from acquiring a new settlement by any length of residence whatever, unless in two particular excepted cases; which makes parishes very cautious of giving such certificates, and of course confines the poor at home, where frequently no adequate employment can be had.
The law of settlements may be therefore now reduced to the following general heads; or, a settlement in a parish may be acquired, 1. By birth; for, wherever a child is first known to be, that is always prima facie the place of settlement, until some other can be shewn[90]. This is also always the place of settlement of a bastard child; for a bastard, having in the eye of the law no father, cannot be referred to his settlement, as other children may[91]. But, in legitimate children, though the place of birth be prima facie the settlement, yet it is not conclusively so; for there are, 2. Settlements by parentage, being the settlement of one’s father or mother: all children being really settled in the parish where their parents are settled, until they get a new settlement for themselves[92]. A new settlement may be acquired several ways; as, 3. By marriage. For a woman, marrying a man that is settled in another parish, changes her own: the law not permitting the separation of husband and wife[93]. But if the man has no settlement, her’s is suspended during his life, if he remains in England and is able to maintain her, but in his absence, or after his death, or during (perhaps) his inability, she may return to her old settlement[94]. The other methods of acquiring settlements in any parish are all reducible to this one, of forty days residence therein: but this forty days residence (which is construed to be lodging or lying there) must not be by fraud, or stealth, or in any clandestine manner; but accompanied with one or other of the following concomitant circumstances. The next method therefore of gaining a settlement, is, 4. By forty days residence, and notice. For if a stranger comes into a parish, and delivers notice in writing of his place of abode, and number of his family, to one of the overseers (which must be read in the church and registered) and resides there unmolested for forty days after such notice, he is legally settled thereby[95]. For the law presumes that such a one at the time of notice is not likely to become chargeable, else he would not venture to give it; or that, in such case, the parish would take care to remove him. But there are also other circumstances equivalent to such notice: therefore, 5. Renting for a year a tenement of the yearly value of ten pounds, and residing forty days in the parish, gains a settlement without notice[96]; upon the principle of having substance enough to gain credit for such a house. 6. Being charged to and paying the public taxes and levies of the parish; (excepting those for scavengers, highways[97], and windows[98]) and, 7. Executing, when legally appointed, any public parochial office for a whole year in the parish, as church-warden, &c; are both of them equivalent to notice, and gain a settlement[99], if coupled with a residence of forty days. 8. Being hired for a year, when unmarried and childless, and serving a year in the same service; and 9. Being bound an apprentice for seven years; give the servant and apprentice a settlement, without notice[100], in that place wherein they serve the last forty days. This is meant to encourage application to trades, and going out to reputable services. 10. Lastly, the having an estate of one’s own, and residing thereon forty days, however small the value may be, in case it be acquired by act of law or of a third person, as by descent, gift, devise, &c, is a sufficient settlement[101]: but if a man acquire it by his own act, as by purchase, (in it’s popular sense, in consideration of money paid) then[102] unless the consideration advanced, bona fide, be 30𝑙. it is no settlement for any longer time, than the person shall inhabit thereon. He is in no case removeable from his own property; but he shall not, by any trifling or fraudulent purchase of his own, acquire a permanent and lasting settlement.
All persons, not so settled, may be removed to their own parishes, on complaint of the overseers, by two justices of the peace, if they shall adjudge them likely to become chargeable to the parish, into which they have intruded: unless they are in a way of getting a legal settlement, as by having hired a house of 10𝑙. per annum, or living in an annual service; for then they are not removeable[103]. And in all other cases, if the parish to which they belong, will grant them a certificate, acknowleging them to be their parishioners, they cannot be removed merely because likely to become chargeable, but only when they become actually chargeable[104]. But such certificated persons can gain no settlement by any of the means above-mentioned; unless by renting a tenement of 10𝑙. per annum, or by serving an annual office in the parish, being legally placed therein: neither can an apprentice or servant to such certificated person gain a settlement by such their service[105].
These are the general heads of the laws relating to the poor, which, by the resolutions of the courts of justice thereon within a century past, are branched into a great variety. And yet, notwithstanding the pains that have been taken about them, they still remain very imperfect, and inadequate to the purposes they are designed for: a fate, that has generally attended most of our statute laws, where they have not the foundation of the common law to build on. When the shires, the hundreds, and the tithings, were kept in the same admirable order that they were disposed in by the great Alfred, there were no persons idle, consequently none but the impotent that needed relief: and the statute of 43 Eliz. seems entirely founded on the same principle. But when this excellent scheme was neglected and departed from, we cannot but observe with concern, what miserable shifts and lame expedients have from time to time been adopted, in order to patch up the flaws occasioned by this neglect. There is not a more necessary or more certain maxim in the frame and constitution of society, than that every individual must contribute his share, in order to the well-being of the community: and surely they must be very deficient in found policy, who suffer one half of a parish to continue idle, dissolute, and unemployed; and then form visionary schemes, and at length are amazed to find, that the industry of the other half is not able to maintain the whole.
↑ ch. 2. pag. 146.
↑ 1 Leon. 70. 2 Leon. 175. Comb. 343. 5 Mod. 84. Salk. 347.
↑ Dalton of sheriffs. c. 1.
↑ 3 Rep. 72.
↑ Montesq. Sp. L. b. 2. c. 2.
↑ Stiernh. de jure Goth. l. 1. c. 3.
↑ Stat. 12 Edw. IV. c. I.
↑ de L. L. c. 24.
↑ 2 Inst. 559.
↑ Jenkins. 229.
↑ Dyer. 225.
↑ 4 Rep. 32.
↑ Dalt. of sheriffs. 8.
↑ Dalt. 7.
↑ Dalt. c. 4.
↑ 1 Roll. Rep. 237.
↑ Dalt. c. 95.
↑ Lamb. Eiren. 315.
↑ Stat. 2 Hen. V. c. 8.
↑ cap. 17.
↑ Stat. 1 Mar. st. 2. c. 8.
↑ Fortesc. de L. L. c. 24.
↑ Dalt. c. 9.
↑ Stat. 3 Geo. I. c. 15.
↑ Stat. 42 Edw. III. c. 9.
↑ Stat. 1 Hen. V. c. 4.
↑ of sheriffs, c. 115.
↑ Dalt. c. 118. 4 Rep. 34.
↑ Stat. 9 Edw. II. st. 2. 2 Edw. III, c. 4. 4 Edw. III. c. 9. 5 Edw. III. c. 4. 13 & 14 Car. II. c. 21. §. 7.
↑ 2 Inst. 31. 4 Inst. 271.
↑ 4 Rep. 57.
↑ F. N. B. 163.
↑ Mirror. c. 1. §. 3.
↑ 2 Inst. 558.
↑ F. N. B. 163.
↑ 3 Edw. I. c. 10.
↑ 2 Inst. 32.
↑ F. N. B. 163, 164.
↑ Ibid.
↑ Mirr. c. 1. §. 3. 2 Inst. 175.
↑ 2 Inst. 210.
↑ Stat. 25 Geo. II. c. 29.
↑ F. N. B. 163, 164.
↑ 4 Inst. 271.
↑ Thus, in the Gothic constitution, before any fine was payable by the neighbourhood, for the slaughter of a man therein, “de corpore delicti constare oportebat; i.e. non tam fuisse aliquem in territorio isto mortuum inventum, quam vulneratum et caesum. Potest enim homo etiam ex alia causa subito mori.” Stiernhook de jure Gothor. l. 3. c. 4.
↑ 4 Inst. 271.
↑ Lambard. Eirenarch. 12.
↑ Lamb. 12.
↑ Britton. 3.
↑ F. N. B. 81.
↑ Lamb. 14.
↑ Ibid. 15.
↑ Ibid. 17.
↑ Ibid. 16.
↑ Hist. A. D. 1327.
↑ Stat. 1 Edw. III. c. 16.
↑ Lamb. 20.
↑ Stat. 4 Edw. III. c. 2. 18 Edw. III. st. 2. c. 2.
↑ Lamb. 23.
↑ Ibid. 43.
↑ See the form itself, Lamb. 35. Burn. tit. justices, §. 1.
↑ Stat. 26 Geo. II. c. 27.
↑ Lamb. 34.
↑ See bishop Fleetwood’s calculations in his chronicon pretiosum.
↑ Stat. 18 Geo. II. c. 20.
↑ Stat. 1 Ann. c. 8.
↑ Lamb. 67.
↑ Stat. 1 Mar. st. 1. c. 8.
↑ Stat. 1 Edw. VI. c. 7.
↑ Stat. 7 Jac. I. c. 5. 21 Jac. I. c. 12. 24 Geo. II. c. 44.
↑ Philips’s life of Pole. ii. III.
↑ of constables, 5.
↑ 13 Edw. I. c. 6.
↑ Salk. 150.
↑ Spelm. Gloss. 148.
↑ pag. 114.
↑ Lamb. 9.
↑ Stat. 14 & 15 Car. II. c. 12.
↑ Dalt. just. c. 104.
↑ Excubias et explorationes quas wactas vocant. Capitular. Hludov. Pii. cap. 1. A. D. 815.
↑ C. 11. 74. 4.
↑ This office, Mr Dahon (just. cap. 50.) says, exactly answers that of the curatores viarum of the Romans: but, I should guess that theirs was an office of rather more dignity and authority than ours, not only from comparing the method of making and mending the Roman ways with those of our country parishes; but also because one Thermus, who was the curator of the Flaminian was candidate for the consulship with Julius Caesar. (Cic. ad Attic. l. I. ep. 1.)
↑ Stat. 3 W. & M. c. 12.
↑ This, by the laws of the twelve tables at Rome, was the standard for roads that were straight; but in winding ways, the breadth was directed to be sixteen feet. Ff. 8. 3. 8.
↑ c. 1. §. 3.
↑ Stra. 1123.
↑ 2 Lord Raym. 1394.
↑ Stat. 19 Hen. VII. c. 12. 1 Edw. VI. c. 3. 3 Edw. VI. c. 16. 14 Eliz. c. 5.
↑ Stat. 59 Eliz. c. 4.
↑ Carth. 433. Comb. 364. Salk. 485. 1 Lord Raym. 567.
↑ Salk. 427.
↑ Salk. 528. 2 Lord Raym. 1473.
↑ Stra. 544.
↑ Foley. 249. 251. 252.
↑ Stat. 13 & 14 Car. II. c. 12. 1 Jac. II. c. 17. 3 & 4 W. & Mar. c. 11.
↑ Stat. 13 & 14. Car. II. c. 12.
↑ Stat. 9 Geo. I. c. 7. §. 6.
↑ Stat. 21 Geo. II. c. 10. §. 13.
↑ Stat. 3 & 4 W. & M. c. 11.
↑ Ibid. 8 & 9 W. III. c. 10. 31 Geo. II. c. 11.
↑ Salk. 524.
↑ Stat. 9 Geo. I. c. 7.
↑ Salk. 472.
↑ Stat. 8 & 9 W. III. c. 30.
↑ Stat. 12 Ann. c. 18.
Chapter the tenth.
Of the PEOPLE, whether ALIENS,
DENIZENS, or NATIVES.
HAVING, in the eight preceding chapters, treated of persons as they stand in the public relations of magistrates, I now proceed to consider such persons as fall under the denomination of the people. And herein all the inferior and subordinate magistrates, treated of in the last chapter, are included.
The first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or, as it is generally called, the allegiance of the king; and aliens, such as are born out of it. Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject. The thing itself, or substantial part of it, is founded in reason and the nature of government; the name and the form are derived to us from our Gothic ancestors. Under the feudal system, every owner of lands held them in subjection to some superior or lord, from whom or whose ancestors the tenant or vasal had received them: and there was a mutual trust or confidence subsisting between the lord and vasal, that the lord should protect the vasal in the enjoyment of the territory he had granted him, and, on the other hand, that the vasal should be faithful to the lord and defend him against all his enemies. This obligation on the part of the vasal was called his fidelitas or fealty; and an oath of fealty was required, by the feodal law, to be taken by all tenants to their landlord, which is couched in almost the same terms as our antient oath of allegiance[1]: except that in the usual oath of fealty there was frequently a saving or exception of the faith due to a superior lord by name, under whom the landlord himself was perhaps only a tenant or vasal. But when the acknowlegement was made to the absolute superior himself, who was vasal to no man, it was no longer called the oath of fealty, but the oath of allegiance; and therein the tenant swore to bear faith to his sovereign lord, in opposition to all men, without any saving or exception: “contra omnes homines fidelitatem fecit[2].” Land held by this exalted species of fealty was called feudum ligium, a liege fee; the vasals homines ligii, or liege men; and the sovereign their dominus ligins, or liege lord. And when sovereign princes did homage to each other, for lands held under their respective sovereignties, a distinction was always made between simple homage, which was only an acknowlegement of tenure[3]; and liege homage, which included the fealty before-mentioned, and the services consequent upon it. Thus when our Edward III, in 1329, did homage to Philip VI of France, for his ducal dominions on that continent, it was warmly disputed of what species the homage was to be, whether liege or simple homage[4]. But with us in England, it becoming a settled principle of tenure, that all lands in the kingdom are holden of the king as their sovereign and lord paramount, no oath but that of fealty could ever be taken to inferior lords, and the oath of allegiance was necessarily confined to the person of the king alone. By an easy analogy the term of allegiance was soon brought to signify all other engagements, which are due from subjects to their prince, as well as those duties which were simply and merely territorial. And the oath of allegiance, as administred for upwards of six hundred years[5], contained a promise “to be true and faithful to the king and his heirs, and truth and faith to bear of life and limb and terrene honour, and not to know or hear of any ill or damage intended him, without defending him therefrom.” Upon which sir Matthew Hale[6] makes this remark; that it was short and plain, not entangled with long or intricate clauses or declarations, and yet is comprehensive of the whole duty from the subject to his sovereign. But, at the revolution, the terms of this oath being thought perhaps to favour too much the notion of non-resistance, the present form was introduced by the convention parliament, which is more general and indeterminate than the former; the subject only promising “that he will be faithful and bear true allegiance to the king,” without mentioning “his heirs,” or specifying in the least wherein that allegiance consists. The oath of supremacy is principally calculated as a renuntiation of the pope’s pretended authority: and the oath of abjuration, introduced in the reign of king William[7], very amply supplies the loose and general texture of the oath of allegiance; it recognizing the right of his majesty, derived under the act of settlement; engaging to support him to the utmost of the juror’s power; promising to disclose all traiterous conspiracies against him; and expressly renouncing any claim of the descendants of the late pretender, in as clear and explicit terms as the English language can furnish. This oath must be taken by all persons in any office, trust, or employment; and may be tendered by two justices of the peace to any person, whom they shall suspect of disaffection[8]. And the oath of allegiance may be tendered[9] to all persons above the age of twelve years, whether natives, denizens, or aliens, either in the court-leet of the manor, or in the sheriff’s tourn, which is the court-leet of the county.
But, besides these express engagements, the law also holds that there is an implied, original, and virtual allegiance, owing from every subject to his sovereign, antecedently to any express promise; and although the subject never swore any faith or allegiance in form. For as the king, by the very descent of the crown, is fully inverted with all the rights and bound to all the duties of sovereignty, before his coronation; so the subject is bound to his prince by an intrinsic allegiance, before the super-induction of those outward bonds of oath, homage, and fealty; which were only instituted to remind the subject of this his previous duty, and for the better securing it’s performance[10]. The formal profession therefore, or oath of subjection, is nothing more than a declaration in words of what was before implied in law. Which occasions sir Edward Coke very justly to observe[11], that “all subjects are equally bounden to their allegiance, as if they had taken the oath; because it is written by the finger of the law in their hearts, and the taking of the corporal oath is but an outward declaration of the same.” The sanction of an oath, it is true, in case of violation of duty, makes the guilt still more accumulated, by superadding perjury to treason; but it does not encrease the civil obligation to loyalty; it only strengthens the social tie by uniting it with that of religion.
Allegiance, both express and implied, is however distinguished by the law into two sorts or species, the one natural, the other local; the former being also perpetual, the latter temporary. Natural allegiance is such as is due from all men born within the king’s dominions immediately upon their birth[12]. For, immediately upon their birth, they are under the king’s protection; at a time too, when (during their infancy) they are incapable of protecting themselves. Natural allegiance is therefore a debt of gratitude; which cannot be forfeited, cancelled, or altered, by any change of time, place, or circumstance, nor by any thing but the united concurrence of the legislature[13]. An Englishman who removes to France, or to China, owes the same allegiance to the king of England there as at home, and twenty years hence as well as now. For it is a principle of universal law[14], that the natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former: for this natural allegiance was intrinsic, and primitive, and antecedent to the other; and cannot be devested without the concurrent act of that prince to whom it was first due. Indeed the natural-born subject of one prince, to whom he owes allegiance, may be entangled by subjecting himself absolutely to another; but it is his own act that brings him into these straits and difficulties, of owing service to two masters; and it is unreasonable that, by such voluntary act of his own, he should be able at pleasure to unloose those bands, by which he is connected to his natural prince.
Local allegiance is such as is due from an alien, or stranger born, for so long time as he continues within the king’s dominion and protection[15]: and it ceases, the instant such stranger transfers himself from this kingdom to another. Natural allegiance is therefore perpetual, and local temporary only: and that for this reason, evidently founded upon the nature of government; that allegiance is a debt due from the subject, upon an implied contract with the prince, that so long as the one affords protection, so long the other will demean himself faithfully. As therefore the prince is always under a constant tie to protect his natural-born subjects, at all times and in all countries, for this reason their allegiance due to him is equally universal and permanent. But, on the other hand, as the prince affords his protection to an alien, only during his residence in this realm, the allegiance of an alien is confined (in point of time) to the duration of such his residence, and (in point of locality) to the dominions of the British empire. From which considerations sir Matthew Hale[16] deduces this consequence, that, though there be an usurper of the crown, yet it is treason for any subject, while the usurper is in full possession of the sovereignty, to practice any thing against his crown and dignity: wherefore, although the true prince regain the sovereignty, yet such attempts against the usurper (unless in defence or aid of the rightful king) have been afterwards punished with death; because of the breach of that temporary allegiance, which was due to him as king de facto. And upon this footing, after Edward IV recovered the crown, which had been long detained from his house by the line of Lancaster, treasons committed against Henry VI were capitally punished, though Henry had been declared an usurper by parliament.
This oath of allegiance, or rather the allegiance itself, is held to be applicable not only to the political capacity of the king, or regal office, but to his natural person, and blood-royal: and for the misapplication of their allegiance, viz. to the regal capacity or crown, exclusive of the person of the king, were the Spencers banished in the reign of Edward II[17]. And from hence arose that principle of personal attachment, and affectionate loyalty, which induced our forefathers (and, if occasion required, would doubtless induce their sons) to hazard all that was dear to them, life, fortune, and family, in defence and support of their liege lord and sovereign.
This allegiance then, both express and implied, is the duty of all the king’s subjects, under the distinctions here laid down, of local and temporary, or universal and perpetual. Their rights are also distinguishable by the same criterions of time and locality; natural-born subjects having a great variety of rights, which they acquire by being born within the king’s ligeance, and can never forfeit by any distance of place or time, but only by their own misbehaviour: the explanation of which rights is the principal subject of the two first books of these commentaries. The same is also in some degree the case of aliens; though their rights are much more circumscribed, being acquired only by residence here, and lost whenever they remove. I shall however here endeavour to chalk out some of the principal lines, whereby they are distinguished from natives, descending to farther particulars when they come in course.
An alien born may purchase lands, or other estates: but not for his own use; for the king is thereupon entitled to them[18]. If an alien could acquire a permanent property in lands, he must owe an allegiance, equally permanent with that property, to the king of England; which would probably be inconsistent with that, which he owes to his own natural liege lord: besides that thereby the nation might in time be subject to foreign influence, and feel many other inconveniences. Wherefore by the civil law such contracts were also made void[19]: but the prince had no such advantage of forfeiture thereby, as with us in England. Among other reasons, which might be given for our constitution, it seems to be intended by way of punishment for the alien’s presumption, in attempting to acquire any landed property: for the vendor is not affected by it, he having resigned his right, and received an equivalent in exchange. Yet an alien may acquire a property in goods, money, and other personal estate, or may hire a house for his habitation[20]: for personal estate is of a transitory and moveable nature; and, besides, this indulgence to strangers is necessary for the advancement of trade. Aliens also may trade as freely as other people, only they are subject to certain higher duties at the custom-house: and there are also some obsolete statutes of Henry VIII, prohibiting alien artificers to work for themselves in this kingdom; but it is generally held they were virtually repealed by statute 5 Eliz. c. 7. Also an alien may bring an action concerning personal property, and may make a will, and dispose of his personal estate[21]: not as it is in France, where the king at the death of an alien is entitled to all he is worth, by the droit d’aubaine or jus albinatus[22], unless he has a peculiar exemption. When I mention these rights of an alien, I must be understood of alien-friends only, or such whose countries are in peace with ours; for alien-enemies have no rights, no privileges, unless by the king’s special favour, during the time of war.
When I say, that an alien is one who is born out of the king’s dominions, or allegiance, this also must be understood with some restrictions. The common law indeed stood absolutely so; with only a very few exceptions: so that a particular act of parliament became necessary after the restoration[23], “for the naturalization of children of his majesty’s English subjects, born in foreign countries during the late troubles.” And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once. Yet the children of the king’s embassadors born abroad were always held to be natural subjects[24]: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of postliminium) to be born under the king of England’s allegiance, represented by his father, the embassador. To encourage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband’s consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants[25]. But by several more modern statutes[26] these restrictions are still farther taken off: so that all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.
The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is an alien[27].
A denizen is an alien born, but who has obtained ex donatione regis letters patent to make him an English subject: a high and incommunicable branch of the royal prerogative[28]. A denizen is in a kind of middle state between an alien, and natural-born subject, and partakes of both of them. He may take lands by purchase or devise, which an alien may not; but cannot take by inheritance[29]: for his parent, through whom he must claim, being an alien had no inheritable blood, and therefore could convey none to the son. And, upon a like defect of hereditary blood, the issue of a denizen, born before denization, cannot inherit to him; but his issue born after, may[30]. A denizen is not excused[31] from paying the alien’s duty, and some other mercantile burthens. And no denizen can be of the privy council, or either house of parliament, or have any office of trust, civil or military, or be capable of any grant from the crown[32].
Naturalization cannot be performed but by act of parliament: for by this an alien is put in exactly the same state as if he had been born in the king’s ligeance; except only that he is incapable, as well as a denizen, of being a member of the privy council, or parliament, &c[33]. No bill for naturalization can be received in either house of parliament, without such disabling clause in it[34]. Neither can any person be naturalized or restored in blood, unless he hath received the sacrament of the Lord’s supper within one month before the bringing in of the bill; and unless he also takes the oaths of allegiance and supremacy in the presence of the parliament[35].
These are the principal distinctions between aliens, denizens, and natives: distinctions, which endeavours have been frequently used since the commencement of this century to lay almost totally aside, by one general naturalization-act for all foreign protestants. An attempt which was once carried into execution by the statute 7 Ann. c. 5. but this, after three years experience of it, was repealed by the statute 10 Ann. c. 5. except one clause, which was just now mentioned, for naturalizing the children of English parents born abroad. However, every foreign seaman who in time of war serves two years on board an English ship is ipso facto naturalized[36]; and all foreign protestants, and Jews, upon their residing seven years in any of the American colonies, without being absent above two months at a time, are upon taking the oaths naturalized to all intents and purposes, as if they had been born in this kingdom[37]; and therefore are admissible to all such privileges, and no other, as protestants or Jews born in this kingdom are entitled to. What those privileges are[38], was the subject of very high debates about the time of the famous Jew-bill[39]; which enabled all Jews to prefer bills of naturalization in parliament, without receiving the sacrament, as ordained by statute 7 Jac. I. It is not my intention to revive this controversy again; for the act lived only a few months, and was then repealed[40]: therefore peace be now to it’s manes.
↑ 2 Feud. 5, 6, 7.
↑ 2 Feud. 99.
↑ 7 Rep. Calvin’s case. 7.
↑ 2 Carte. 401. Mod. Un. Hist. xxiii. 420.
↑ Mirror. c. 3. §. 35. Fleta. 3. 16. Britton. c. 29. 7 Rep. Calvin’s case. 6.
↑ 1 Hal. P. C. 63.
↑ Stat. 13 Will. III. c. 6.
↑ Stat. 1 Geo. I. c. 13. 6 Geo. III. c. 53.
↑ 2 Inst. 121. 1 Hal. P. C. 64.
↑ 1 Hal. P. C. 61.
↑ 2 Inst. 121.
↑ 7 Rep. 7.
↑ 2 P. Wms. 124.
↑ 1 Hal. P. C. 68.
↑ 7 Rep. 6.
↑ 1 Hal. P. C. 60.
↑ 1 Hal. P. C. 67.
↑ Co. Litt. 2.
↑ Cod. l. 11. tit. 55.
↑ 7 Rep. 17.
↑ Lutw. 34.
↑ The word is derived from alibi natus; Spelm. Gl. 24.
↑ Stat. 29 Car. II. c. 6.
↑ 7 Rep. 18.
↑ Cro Car. 601. Mar. 91. Jenk. Cent. 3.
↑ 7 Ann. c. 5. and 4 Geo. II. c. 21.
↑ Jenk. Cent. 3. cites treasure françois, 312.
↑ 7 Rep. Calvin’s case. 25.
↑ 11 Rep 67.
↑ Co. Litt. 8. Vaugh. 285.
↑ Stat. 22 Hen. VIII. c. 8.
↑ Stat. 12 W. III. c. 2.
↑ Ibid.
↑ Stat. 1 Geo. I. c. 4.
↑ Stat. 7 Jac. I. c. 2.
↑ Stat. 13 Geo. II. c. 3.
↑ Stat. 13 Geo. II. c. 7. 20 Geo. II. c. 24. 2 Geo. III. c. 25.
↑ A pretty accurate account of the Jews, till their banishment in 8 Edw. I. may be found in Molloy de jure maritimo, b. 3. c. 6.
↑ Stat. 26 Geo. II. c. 26.
↑ Stat. 27 Geo. II. c. 1.
Chapter the eleventh.
Of the CLERGY.
THE people, whether aliens, denizens, or natural-born subjects, are divisible into two kinds; the clergy and laity: the clergy, comprehending all persons in holy orders, and in ecclesiastical offices, will be the subject of the following chapter.
This venerable body of men, being separate and set apart from the rest of the people, in order to attend the more closely to the service of almighty God, have thereupon large privileges allowed them by our municipal laws: and had formerly much greater, which were abridged at the time of the reformation on account of the ill use which the popish clergy had endeavoured to make of them. For, the laws having exempted them from almost every personal duty, they attempted a total exemption from every secular tie. But it is observed by sir Edward Coke[1], that, as the overflowing of waters doth many times make the river to lose it’s proper chanel, so in times past ecclesiastical persons, seeking to extend their liberties beyond their true bounds, either lost or enjoyed not those which of right belonged to them. The personal exemptions do indeed for the most part continue. A clergyman cannot be compelled to serve on a jury, nor to appear at a court-leet or view of frank pledge; which almost every other person is obliged to do[2]: but, if a layman is summoned on a jury, and before the trial takes orders, he shall notwithstanding appear and be sworn[3]. Neither can he be chosen to any temporal office; as bailiff, reeve, constable, or the like: in regard of his own continual attendance on the sacred function[4]. During his attendance on divine service he is privileged from arrests in civil suits[5]. In cases also of felony, a clerk in orders shall have the benefit of his clergy, without being branded in the hand; and may likewise have it more than once: in both which particulars he is distinguished from a layman[6]. But as they have their privileges, so also they have their disabilities, on account of their spiritual avocations. Clergymen, we have seen[7], are incapable of sitting in the house of commons; and by statute 21 Hen. VIII. c. 13. are not (in general) allowed to take any lands or tenements to farm, upon pain of 10𝑙. per month, and total avoidance of the lease; nor shall engage in any manner of trade, nor sell any merchandize, under forfeiture of the treble value. Which prohibition is consonant to the canon law.
In the frame and constitution of ecclesiastical polity there are divers ranks and degrees: which I shall consider in their respective order, merely as they are taken notice of by the secular laws of England; without intermeddling with the canons and constitutions, by which the clergy have bound themselves. And under each division I shall consider, 1. The method of their appointment; 2. Their rights and duties; and 3. The manner wherein their character or office may cease.
I. An arch-bishop or bishop is elected by the chapter of the cathedral church, by virtue of a licence from the crown. Election was, in very early times, the usual mode of elevation to the episcopal chair throughout all christendom; and this was promiscuously performed by the laity as well as the clergy[8]: till at length, it becoming tumultuous, the emperors and other sovereigns of the respective kingdoms of Europe took the appointment in some degree into their own hands; by reserving to themselves the right of confirming these elections, and of granting investiture of the temporalties, which now began almost universally to be annexed to this spiritual dignity; without which confirmation and investiture, the elected bishop could neither be consecrated, nor receive any secular profits. This right was acknowleged in the emperor Charlemagne, A. D. 773, by pope Hadrian I, and the council of Lateran[9], and universally exercised by other christian princes: but the policy of the court of Rome at the same time began by degrees to exclude the laity from any share in these elections, and to confine them wholly to the clergy, which at length was completely effected; the mere form of election appearing to the people to be a thing of little consequence, while the crown was in possession of an absolute negative, which was almost equivalent to a direct right of nomination. Hence the right of appointing to bishopricks is said to have been in the crown of England[10] (as well as other kingdoms in Europe) even in the Saxon times, because the rights of confirmation and investiture were in effect (though not in form) a right of complete donation[11]. But when, by length of time, the custom of making elections by the clergy only was fully established, the popes began to except to the usual method of granting these investitures, which was per annulum et baculum, by the prince’s delivering to the prelate a ring, and a pastoral staff or crosier; pretending, that this was an encroachment on the church’s authority, and an attempt by these symbols to confer a spiritual jurisdiction: and pope Gregory VII, towards the close of the eleventh century, published a bulle of excommunication against all princes who should dare to confer investitures, and all prelates who should venture to receive them[12]. This was a bold step towards effecting the plan then adopted by the Roman see, of rendering the clergy intirely independent of the civil authority: and long and eager were the contests occasioned by this dispute. But at length when the emperor Henry V agreed to remove all suspicion of encroachment on the spiritual character, by conferring investitures for the future per sceptrum and not per annulum et baculum; and when the kings of England and France consented also to alter the form in their kingdoms, and receive only homage from the bishops for their temporalties, instead of investing them by the ring and crosier; the court of Rome found it prudent to suspend for a while it’s other pretensions[13].
This concession was obtained from king Henry the first in England, by means of that obstinate and arrogant prelate, arch-bishop Anselm[14]: but king John (about a century afterwards) in order to obtain the protection of the pope against his discontented barons, was prevailed upon to give up by a charter, to all the monasteries and cathedrals in the kingdom, the free right of electing their prelates, whether abbots or bishops: reserving only to the crown the custody of the temporalties during the vacancy; the form of granting a licence to elect, (which is the original of our conge d’eslire) on refusal whereof the electors might proceed without it; and the right of approbation afterwards, which was not to be denied without a reasonable and lawful cause[15]. This grant was expressly recognized and confirmed in king John’s magna carta[16], and was again established by statute 25 Edw. III. st. 6. §. 3.
But by statute 25 Hen. VIII. c. 20. the antient right of nomination was, in effect, restored to the crown: it being enacted that, at every future avoidance of a bishoprick, the king may send the dean and chapter his usual licence to proceed to election; which is always to be accompanied with a letter missive from the king, containing the name of the person whom he would have them elect: and, if the dean and chapter delay their election above twelve days, the nomination shall devolve to the king, who may by letters patent appoint such person as he pleases. This election or nomination, if it be of a bishop, must be signified by the king’s letters patent to the arch-bishop of the province; if it be of an arch-bishop, to the other arch-bishop and two bishops, or to four bishops; requiring them to confirm, invest, and consecrate the person so elected; which they are bound to perform immediately, without any application to the fee of Rome. After which the bishop elect shall sue to the king for his temporalties, shall make oath to the king and none other, and shall take restitution of his secular possessions out of the king’s hands only. And if such dean and chapter do not elect in the manner by this act appointed, or if such arch-bishop or bishop do refuse to confirm, invest, and consecrate such bishop elect, they shall incur all the penalties of a praemunire.
An arch-bishop is the chief of the clergy in a whole province; and has the inspection of the bishops of that province, as well as of the inferior clergy, and may deprive them on notorious cause[17]. The arch-bishop has also his own diocese, wherein he exercises episcopal jurisdiction; as in his province he exercises archiepiscopal. As arch-bishop, he, upon receipt of the king’s writ, calls the bishops and clergy of his province to meet in convocation: but without the king’s writ he cannot assemble them[18]. To him all appeals are made from inferior jurisdictions within his province; and, as an appeal lies from the bishops in person to him in person, so it also lies from the consistory courts of each diocese to his archiepiscopal court. During the vacancy of any fee in his province, he is guardian of the spiritualties thereof, as the king is of the temporalties; and he executes all ecclesiastical jurisdiction therein. If an archiepiscopal fee be vacant, the dean and chapter are the spiritual guardians, ever since the office of prior of Canterbury was abolished at the reformation[19]. The arch-bishop is entitled to present by lapse to all the ecclesiastical livings in the disposal of his diocesan bishops, if not filled within six months. And the arch-bishop has a customary prerogative, when a bishop is consecrated by him, to name a clerk or chaplain of his own to be provided for by such suffragan bishop; in lieu of which it is now usual for the bishop to make over by deed to the arch-bishop, his executors and assigns, the next presentation of such dignity or benefice in the bishop’s disposal within that fee, as the arch-bishop himself shall choose; which is therefore called his option[20]: which options are only binding on the bishop himself who grants them, and not his successors. The prerogative itself seems to be derived from the legatine power formerly annexed by the popes to the metropolitan of Canterbury[21]. And we may add, that the papal claim itself (like most others of that encroaching fee) was probably set up in imitation of the imperial prerogative called primae or primariae preces; whereby the emperor exercises, and hath immemorially exercised[22], a right of naming to the first prebend that becomes vacant after his accession in every church of the empire[23]. A right, that was also exercised by the crown of England in the reign of Edward I[24]; and which probably gave rise to the royal corodies, which were mentioned in a former chapter[25]. It is also the privilege, by custom, of the arch-bishop of Canterbury, to crown the kings and queens of this kingdom. And he hath also by the statute 25 Hen. VIII. c. 21. the power of granting dispensations in any case, not contrary to the holy scriptures and the law of God, where the pope used formerly to grant them: which is the foundation of his granting special licences, to marry at any place or time, to hold two livings, and the like: and on this also is founded the right he exercises of conferring degrees, in prejudice of the two universities[26].
The power and authority of a bishop, besides the administration of certain holy ordinances peculiar to that sacred order, consist principally in inspecting the manners of the people and clergy, and punishing them, in order to reformation, by ecclesiastical censures. To this purpose he has several courts under him, and may visit at pleasure every part of his diocese. His chancellor is appointed to hold his courts for him, and to assist him in matters of ecclesiastical law; who, as well as all other ecclesiastical officers, if lay or married, must be a doctor of the civil law, so created in some university[27]. It is also the business of a bishop to institute, and to direct induction, to all ecclesiastical livings in his diocese.
Archbishopricks and bishopricks may become void by death, deprivation for any very gross and notorious crime, and also by resignation. All resignations must be made to some superior[28]. Therefore a bishop must resign to his metropolitan; but the arch-bishop can resign to none but the king himself.
II. A dean and chapter are the council of the bishop, to assist him with their advice in affairs of religion, and also in the temporal concerns of his fee[29]. When the rest of the clergy were settled in the several parishes of each diocese (as hath formerly[30] been mentioned) these were reserved for the celebration of divine service in the bishop’s own cathedral; and the chief of them, who presided over the rest, obtained the name of decanus or dean, being probably at first appointed to superintend ten canons or prebendaries.
All antient deans are elected by the chapter, by conge d’eslire from the king, and letters missive of recommendation; in the same manner as bishops: but in those chapters, that were founded by Henry VIII out of the spoils of the dissolved monasteries, the deanery is donative, and the installation merely by the king’s letters patent[31]. The chapter, consisting of canons or prebendaries, are sometimes appointed by the king, sometimes by the bishop, and sometimes elected by each other.
The dean and chapter are, as was before observed, the nominal electors of a bishop. The bishop is their ordinary and immediate superior; and has, generally speaking, the power of visiting them, and correcting their excelles and enormities. They had also a check on the bishop at common law: for till the statute 32 Hen. VIII. c. 28. his grant or lease would not have bound his successors, unless confirmed by the dean and chapter[32].
Deaneries and prebends may become void, like a bishoprick, by death, by deprivation, or by resignation to either the king or the bishop[33]. Also I may here mention, once for all, that if a dean, prebendary, or other spiritual person be made a bishop, all the preferments of which he was before possessed are void; and the king may present to them in right of his prerogative royal. But they are not void by the election, but only by the consecration[34].
III. An arch-deacon hath an ecclesiastical jurisdiction, immediately subordinate to the bishop, throughout the whole of his diocese, or in some particular part of it. He is usually appointed by the bishop himself; and hath a kind of episcopal authority, originally derived from the bishop, but now independent and distinct from his[35]. He therefore visits the clergy; and has his separate court for punishment of offenders by spiritual censures, and for hearing all other causes of ecclesiastical cognizance.
IV. The rural deans are very antient officers of the church[36], but almost grown out of use; though their deaneries still subsist as an ecclesiastical division of the diocese, or archdeaconry. They seem to have been deputies of the bishop, planted all round his diocese, the better to inspect the conduct of the parochial clergy, and therefore armed with an inferior degree of judicial and coercive authority[37].
V. The next, and indeed the most numerous, order of men in the system of ecclesiastical polity, are the parsons and vicars of churches: in treating of whom I shall first mark out the distinction between them; shall next observe the method by which one may become a parson or vicar; shall then briefly touch upon their rights and duties; and shall, lastly, shew how one may cease to be either.
A parson, persona ecclesiae, is one that hath full possession of all the rights of a parochial church. He is called parson, persona, because by his person the church, which is an invisible body, is represented; and he is in himself a body corporate, in order to protect and defend the rights of the church (which he personates) by a perpetual succession[38]. He is sometimes called the rector, or governor, of the church: but the appellation of parson, (however it may be depreciated by familiar, clownish, and indiscriminate use) is the most legal, most beneficial, and most honourable title that a parish priest can enjoy; because such a one, (sir Edward Coke observes) and he only, is said vicem seu personam ecclesiae gerere. A parson has, during his life, the freehold in himself of the parsonage house, the glebe, the tithes, and other dues. But these are sometimes appropriated; that is to say, the benefice is perpetually annexed to some spiritual corporation, either sole or aggregate, being the patron of the living; whom the law esteems equally capable of providing for the service of the church, as any single private clergyman. This contrivance seems to have sprung from the policy of the monastic orders, who have never been deficient in subtile inventions for the increase of their own power and emoluments. At the first establishment of parochial clergy, the tithes of the parish were distributed in a fourfold division; one for the use of the bishop, another for maintaining the fabric of the church, a third for the poor, and the fourth to provide for the incumbent. When the fees of the bishops became otherwise amply endowed, they were prohibited from demanding their usual share of these tithes, and the division was into three parts only. And hence it was inferred by the monasteries, that a small part was sufficient for the officiating priest, and that the remainder might well be applied to the use of their own fraternities, (the endowment of which was construed to be a work of the most exalted piety) subject to the burthen of repairing the church and providing for it’s constant supply. And therefore they begged and bought, for masses and obits, and sometimes even for money, all the advowsons within their reach, and then appropriated the benefices to the use of their own corporation. But, in order to complete such appropriation effectually, the king’s licence, and consent of the bishop, must first be obtained; because both the king and the bishop may sometime or other have an interest, by lapse, in the presentation to the benefice; which can never happen if it be appropriated to the use of a corporation, which never dies: and also because the law reposes a confidence in them, that they will not consent to any thing that shall be to the prejudice of the church. The consent of the patron also is necessarily implied, because (as was before observed) the appropriation can be originally made to none, but to such spiritual corporation, as is also the patron of the church; the whole being indeed nothing else, but an allowance for the patrons to retain the tithes and glebe in their own hands, without presenting any clerk, they themselves undertaking to provide for the service of the church[39]. When the appropriation is thus made, the appropriators and their successors are perpetual parsons of the church; and must sue and be sued, in all matters concerning the rights of the church, by the name of parsons[40].
This appropriation may be severed, and the church become disappropriate, two ways: as, first, if the patron or appropriator presents a clerk, who is instituted and inducted to the parsonage: for the incumbent so instituted and inducted is to all intents and purposes complete parson; and the appropriation, being once severed, can never be re-united again, unless by repetition of the same solemnities[41]. And when the clerk so presented is distinct from the vicar, the rectory thus vested in him becomes what is called a sine-cure; because he hath no cure of souls, having a vicar under him to whom that cure is committed[42]. Also, if the corporation which has the appropriation is dissolved, the parsonage becomes disappropriate at common law; because the perpetuity of person is gone, which is necessary to support the appropriation.
In this manner, and subject to these conditions, may appropriations be made at this day: and thus were most, if not all, of the appropriations at present existing originally made; being annexed to bishopricks, prebends, religious houses, nay, even to nunneries, and certain military orders, all of which were spiritual corporations. At the dissolution of monasteries by statutes 27 Hen. VIII. c. 28. and 31 Hen. VIII. c. 13. the appropriations of the several parsonages, which belonged to those respective religious houses, (amounting to more than one third of all the parishes in England[43]) would have been by the rules of the common law disappropriated; had not a clause in those statutes intervened, to give them to the king in as ample a manner as the abbots, &c, formerly held the same, at the time of their dissolution. This, though perhaps scarcely defensible, was not without example; for the same was done in former reigns, when the alien priories, (that is, such as were filled by foreigners only) were dissolved and given to the crown[44]. And from these two roots have sprung all the lay appropriations or secular parsonages, which we now see in the kingdom; they having been afterwards granted out from time to time by the crown[45].
These appropriating corporations, or religious houses, were wont to depute one of their own body to perform divine service, and administer the sacraments, in those parishes of which the society was thus the parson. This officiating minister was in reality no more than a curate, deputy, or vicegerent of the appropriator, and therefore called vicarius, or vicar. His stipend was at the discretion of the appropriator, who was however bound of common right to find somebody, qui illi de temporalibus, episcopo de spiritualibus, debeat respondere[46]. But this was done in so scandalous a manner, and the parishes suffered so much by the neglect of the appropriators, that the legislature was forced to interpose: and accordingly it is enacted by statute 15 Ric. II. c. 6. that in all appropriations of churches, the diocesan bishop shall ordain (in proportion to the value of the church) a competent sum to be distributed among the poor parishioners annually; and that the vicarage shall be sufficiently endowed. It seems the parish were frequently sufferers, not only by the want of divine service, but also by withholding those alms, for which, among other purposes, the payment of tithes was originally imposed: and therefore in this act a pension is directed to be distributed among the poor parochians, as well as a sufficient stipend to the vicar. But he, being liable to be removed at the pleasure of the appropriator, was not likely to insist too rigidly on the legal sufficiency of the stipend: and therefore by statute 4 Hen. IV. c. 12. it is ordained, that the vicar shall be a secular person, not a member of any religious house; that he shall be vicar perpetual, not removeable at the caprice of the monastery; and that he shall be canonically instituted and inducted, and be sufficiently endowed, at the discretion of the ordinary, for these three express purposes, to do divine service, to inform the people, and to keep hospitality. The endowments in consequence of these statutes have usually been by a portion of the glebe, or land, belonging to the parsonage, and a particular share of the tithes, which the appropriators found it most troublesome to collect, and which are therefore generally called privy, small, or vicarial, tithes; the greater, or predial, tithes being still reserved to their own use. But one and the same rule was not observed in the endowment of all vicarages. Hence some are more liberally, and some more scantily, endowed; and hence many things, as wood in particular, is in some countries a rectorial, and in some a vicarial tithe.
The distinction therefore of a parson and vicar is this; that the parson has for the most part the whole right to all the ecclesiastical dues in his parish; but a vicar has generally an appropriator over him, entitled to the best part of the profits, to whom he is in effect perpetual curate, with a standing salary. Though in some places the vicarage has been considerably augmented by a large share of the great tithes; which augmentations were greatly assisted by the statute 29 Car. II. c. 8. enacted in favour of poor vicars and curates, which rendered such temporary augmentations (when made by the appropriators) perpetual.
The method of becoming a parson or vicar is much the same. To both there are four requisites necessary: holy orders; presentation; institution; and induction. The method of conferring the holy orders of deacon and priest, according to the liturgy and canons[47], is foreign to the purpose of these commentaries; any farther than as they are necessary requisites to make a complete parson or vicar. By common law a deacon, of any age, might be instituted and inducted to a parsonage or vicarage: but it was ordained by statute 13 Eliz. c. 12. that no person under twenty three years of age, and in deacon’s orders, should be presented to any benefice with cure; and if he were not ordained priest within one year after his induction, he should be ipso facto deprived: and now, by statute 13 & 14 Car. II. c. 4. no person is capable to be admitted to any benefice, unless he hath been first ordained a priest; and then he is, in the language of the law, a clerk in orders. But if he obtains orders, or a licence to preach, by money or corrupt practices (which seems to be the true, though not the common notion of simony) the person giving such orders forfeits[48] 40𝑙. and the person receiving 10𝑙. and is incapable of any ecclesiastical preferment for seven years afterwards.
Any clerk may be presented[49] to a parsonage or vicarage; that is, the patron, to whom the advowson of the church belongs, may offer his clerk to the bishop of the diocese to be instituted. Of advowsons, or the right of presentation, being a species of private property, we shall find a more convenient place to treat in the second part of these commentaries. But when a clerk is presented, the bishop may refuse him upon many accounts. As, 1. If the patron is excommunicated, and remains in contempt forty days[50]. Or, 2. If the clerk be unfit[51]: which unfitness is of several kinds. First, with regard to his person; as if he be a bastard, an outlaw, an excommunicate, an alien, under age, or the like[52]. Next, with regard to his faith or morals; as for any particular heresy, or vice that is malum in se: but if the bishop alleges only in generals, as that he is schismaticus inveteratus, or objects a fault that is malum prohibitum merely, as haunting taverns, playing at unlawful games, or the like; it is not good cause of refusal[53]. Or, lastly, the clerk may be unfit to discharge the pastoral office for want of learning. In any of which cases the bishop may refuse the clerk. In case the refusal is for heresy, schism, inability of learning, or other matter of ecclesiastical cognizance, there the bishop must give notice to the patron of such his cause of refusal, who, being usually a layman, is not supposed to have knowlege of it; else he cannot present by lapse: but if the cause be temporal, there he is not bound to give notice[54].
If an action at law be brought by the patron against the bishop, for refusing his clerk, the bishop must assign the cause. If the cause be of a temporal nature and the fact admitted, (as, for instance, outlawry) the judges of the king’s courts must determine it’s validity, or, whether it be sufficient cause of refusal: but if the fact be denied, it must be determined by a jury. If the cause be of a spiritual nature, (as, heresy, particularly alleged) the fact if denied shall also be determined by a jury; and if the fact be admitted or found, the court upon consultation and advice of learned divines shall decide it’s sufficiency[55]. If the cause be want of learning, the bishop need not specify in what points the clerk is deficient, but only allege that he is deficient[56]: for the statute 9 Edw. II. st. 1. c. 13. is express, that the examination of the fitness of a person presented to a benefice belongs to the ecclesiastical judge. But because it would be nugatory in this case to demand the reason of refusal from the ordinary, if the patron were bound to abide by his determination, who has already pronounced his clerk unfit; therefore if the bishop returns the clerk to be minus sufficiens in literatura, the court shall write to the metropolitan; to reexamine him, and certify his qualifications; which certificate of the arch-bishop is final[57].
If the bishop hath no objections, but admits the patron’s presentation, the clerk so admitted is next to be instituted by him; which is a kind of investiture of the spiritual part of the benefice: for by institution the care of the souls of the parish is committed to the charge of the clerk. When a vicar is instituted, he (befides the usual forms) takes, if required by the bishop, an oath of perpetual residence; for the maxim of law is, that vicarius non habet vicarium: and as the non-residence of the appropriators was the cause of the perpetual establishment of vicarages, the law judges it very improper for them to defeat the end of their constitution, and by absence to create the very mischiefs which they were appointed to remedy: especially as, if any profits are to arise from putting in a curate and living at a distance from the parish, the appropriator, who is the real parson, has undoubtedly the elder title to them. When the ordinary is also the patron, and confers the living, the presentation and institution are one and the same act, and are called a collation to a benefice. By institution or collation the church is full, so that there can be no fresh presentation till another vacancy, at least in the case of a common patron; but the church is not full against the king, till induction: nay, even if a clerk is instituted upon the king’s presentation, the crown may revoke it before induction, and present another clerk[58]. Upon institution also the clerk may enter on the parsonage house and glebe, and take the tithes; but he cannot grant or let them, or bring an action for them, till induction.
Induction is performed by a mandate from the bishop to the arch-deacon, who usually issues out a precept to other clergymen to perform it for him. It is done by giving the clerk corporal possession of the church, as by holding the ring of the door, tolling a bell, or the like; and is a form required by law, with intent to give all the parishioners due notice, and sufficient certainty of their new minister, to whom their tithes are to be paid. This therefore is the investiture of the temporal part of the benefice, as institution is of the spiritual. And when a clerk is thus presented, instituted, and inducted into a rectory, he is then, and not before, in full and complete possession, and is called in law persona impersonata, or parson imparsonee[59].
The rights of a parson or vicar, in his tithes and ecclesiastical dues, fall more properly under the second book of these commentaries: and as to his duties, they are principally of ecclesiastical cognizance; those only excepted which are laid upon him by statute. And those are indeed so numerous, that it is impracticable to recite them here with any tolerable conciseness or accuracy. Some of them we may remark, as they arise in the progress of our enquiries, but for the rest I must refer myself to such authors as have compiled treadles expressly upon this subject[60]. I shall only just mention the article of residence, upon the supposition of which the law doth stile every parochial minister an incumbent. By statute 21 Hen. VIII. c. 13. persons wilfully absenting themselves from their benefices, for one month together, or two months in the year, incur a penalty of 5𝑙. to the king, and 5𝑙. to any person that will sue for the same: except chaplains to the king, or others therein mentioned[61], during their attendance in the houshold of such as retain them: and also except[62] all heads of houses, magistrates, and professors in the universities, and all students under forty years of age residing there, bona fide, for study. Legal residence is not only in the parish, but also in the parsonage house: for it hath been resolved[63], that the statute intended residence, not only for serving the cure, and for hospitality; but also for maintaining the house, that the successor also may keep hospitality there.
We have seen that there is but one way, whereby one may become a parson or vicar: there are many ways, by which one may cease to be so. 1. By death. 2. By cession, in taking another benefice. For by statute 21 Hen. VIII. c. 13. if any one having a benefice of 8𝑙. per annum, or upwards, in the king’s books, (according to the present valuation[64],) accepts any other, the first shall be adjudged void; unless he obtains a dispensation; which no one is entitled to have, but the chaplains of the king and others therein mentioned, the brethren and sons of lords and knights, and doctors and bachelors of divinity and law, admitted by the universities of this realm. And a vacancy thus made, for want of a dispensation, is called cession. 3. By consecration; for, as was mentioned before, when a clerk is promoted to a bishoprick, all his other preferments are void the instant that he is consecrated. But there is a method, by the favour of the crown, of holding such livings in commendam. Commenda, or ecclesia commendata, is a living commended by the crown to the care of a clerk, to hold till a proper pastor is provided for it. This may be temporary, for one, two, or three years, or perpetual; being a kind of dispensation to avoid the vacancy of the living, and is called a commenda retinere. There is also a commenda recipere, which is to take a benefice de novo, in the bishop’s own gift, or the gift of some other patron consenting to the same; and this is the same to him as institution and induction are to another clerk[65]. 4. By resignation. But this is of no avail, till accepted by the ordinary; into whose hands the resignation must be made[66]. 5. By deprivation, either by canonical censures, of which I am not to speak; or in pursuance of divers penal statutes, which declare the benefice void, for some nonfeasance or neglect, or else some malefeasance or crime. As, for simony[67]; for maintaining any doctrine in derogation of the king’s supremacy, or of the thirty nine articles, or of the book of common-prayer[68]; for neglecting after institution to read the articles in the church, or make the declarations against popery, or take the abjuration oath[69]; for using any other form of prayer than the liturgy of the church of England[70]; or for absenting himself sixty days in one year from a benefice belonging to a popish patron, to which the clerk was presented by either of the universities[71]; in all which and similar cases[72] the benefice is ipso facto void, without any formal sentence of deprivation.
VI. A curate is the lowest degree in the church; being in the same state that a vicar was formerly, an officiating temporary minister, instead of the proper incumbent. Though there are what are called perpetual curacies, where all the tithes are appropriated, and no vicarage endowed, (being for some particular reasons[73] exempted from the statute of Hen. IV) but, instead thereof, such perpetual curate is appointed by the appropriator. With regard to the other species of curates, they are the objects of some particular statutes, which ordain, that such as serve a church during it’s vacancy shall be paid such stipend as the ordinary thinks reasonable, out of the profits of the vacancy; or, if that be not sufficient, by the successor within fourteen days after he takes possession[74]: and that, if any rector or vicar nominates a curate to the ordinary to be licenced, the ordinary shall settle his stipend under his hand and seal, not exceeding 50𝑙. per annum, nor less than 20𝑙. and on failure of payment may sequester the profits of the benefice[75].
Thus much of the clergy, properly so called. There are also certain inferior ecclesiastical officers of whom the common law takes notice; and that, principally, to assist the ecclesiastical jurisdiction, where it is deficient in powers. On which officers I shall make a few cursory remarks.
VII. Churchwardens are the guardians or keepers of the church, and representatives of the body of the parish[76]. They are sometimes appointed by the minister, sometimes by the parish, sometimes by both together, as custom directs. They are taken, in favour of the church, to be for some purposes a kind of corporation at the common law; that is, they are enabled by that name to have a property in goods and chattels, and to bring actions for them, for the use and profit of the parish. Yet they may not waste the church goods, but may be removed by the parish, and then called to account by action at the common law: but there is no method of calling them to account, but by first removing them; for none can legally do it, but those who are put in their place. As to lands, or other real property, as the church, church-yard, &c, they have no sort of interest therein; but if any damage is done thereto, the parson only or vicar shall have the action. Their office also is to repair the church, and make rates and levies for that purpose: but these are recoverable only in the ecclesiastical court. They are also joined with the overseers in the care and maintenance of the poor. They are to levy[77] a shilling forfeiture on all such as do not repair to church on sundays and holidays, and are empowered to keep all persons orderly while there; to which end it has been held that a churchwarden may justify the pulling off a man’s hat, without being guilty of either an assault or trespass[78]. There are also a multitude of other petty parochial powers committed to their charge by divers acts of parliament[79].
VIII. Parish clerks and sextons are also regarded by the common law, as persons who have freeholds in their offices; and therefore though they may be punished, yet they cannot be deprived, by ecclesiastical censures[80]. The parish clerk was formerly very frequently in holy orders; and some are so to this day. He is generally appointed by the incumbent, but by custom may be chosen by the inhabitants; and if such custom appears, the court of king’s bench will grant a mandamus to the arch-deacon to swear him in, for the establishment of the custom turns it into a temporal or civil right[81].
↑ 2 Inst. 4.
↑ F. N. B. 160. 2 Inst. 4.
↑ 4 Leon. 190.
↑ Finch. L. 88.
↑ Stat. 50 Edw. III. c. 5. 1 Ric. II. c. 16.
↑ 2 Inst. 637. Stat. 4. Hen. VII. c. 13. & 1 Edw. VI. c. 12.
↑ page 175.
↑ per clerum et populum. Palm. 25. 2 Roll. Rep. 102. M. Paris. A. D. 1095.
↑ Decret. 1. dist. 63. c. 22.
↑ Palm. 28.
↑ “Nulla electio praelatorum (sunt verba Ingulphi) erat mere lilera et canonica; sed omnes dignitates tam episcoparum, quam abbatum, per annulum et baculum regis curia pro sua camplatentia conserbat.” Penes clericos et monachos suit electio, sed electum a rege postulabant. Selden. Jan. Angl. l. 1. §. 39.
↑ Decret. 2. caus. 16. qu. 7. c. 12 & 13.
↑ Mod. Un. Hist. xxv. 363. xxix. 115.
↑ M. Paris. A. D. 1107.
↑ M. Paris. A. D. 1214. 1 Rym. Foed. 198.
↑ cap. 1. edit. Oxon. 1759.
↑ Lord Raym. 541.
↑ 4 Inst. 322, 323.
↑ 2 Roll. Abr. 223.
↑ Cowel’s interpret. tit. option.
↑ Sherlock of options. 1.
↑ Goldast. constit. imper. tom. 3. pag. 406.
↑ Dufresne. V. 806. Mod. Un. Hist. xxix. 5.
↑ Rex, &c, salutem. Scribatis episcopo Karl, quod — Roberto de Icard pensionem suam, quam ad preces regis praedicto Roberto concessit, de caetero solvat; et de proxitna ecclesia vacatura de collatione praedicti episcopi, quam ipse Robertus acceptaverit, respiciat. Brev. 11 Edw. I. 3 Pryn. 1264.
↑ ch. 8. pag. 283.
↑ See the bishop of Chester’s case. Oxon. 1721.
↑ Stat. 37 Hen. VIII. c. 17.
↑ Gibs. cod. 822.
↑ 3 Rep. 75. Co. Litt. 103. 300.
↑ pag. 112, 113.
↑ Gibs. cod. 173.
↑ Co. Litt. 103.
↑ Plowd. 498.
↑ 2 Roll. Abr. 352. Salk. 137.
↑ 1 Burn. eccl. law. 68, 69.
↑ Kennet. par. antiq. 633.
↑ Gibs. cod. 972.
↑ Co. Litt. 300.
↑ Plowd. 496—500.
↑ Hob. 307.
↑ Co. Litt. 46.
↑ Sine-cures might also be created by other means. 2 Burn. eccl. law. 347.
↑ Seld. review of tith. c. 9. Spelm. Apology. 35.
↑ 2 Inst. 584.
↑ Sir H. Spelman (of tithes, c. 29.) says these are now called impropriations, as being improperly in the hands of laymen.
↑ Seld. tith. c. 11. 1.
↑ See 2 Burn. eccl. law. 103.
↑ Stat. 31 Eliz. c. 6.
↑ A layman may also be presented; but he must take priest’s orders before his admission. 1 Burn. 103.
↑ 2 Roll. Abr. 355.
↑ Glanv. l. 13. c. 20.
↑ 2 Roll. Abr. 356. 2 Inst. 632. Stat. 3 Ric. II. c. 3. 7 Ric. II. c. 12.
↑ 5 Rep. 58.
↑ 2 Inst. 632.
↑ 2 Inst. 632.
↑ 5 Rep. 58. 3 Lev. 313.
↑ 2 Inst. 632.
↑ Co. Litt. 344.
↑ Ibid. 300.
↑ These are very numerous: but there are only two, which can be relied on with any degree of certainty; bishop Gibson’s codex, and Dr Burn’s ecclesiastical law.
↑ Stat. 25 Hen. VIII. c. 16. 33 Hen. VIII. c. 28.
↑ Stat. 28 Hen. VIII. c. 13.
↑ 6 Rep. 21.
↑ Cro. Car. 456.
↑ Hob. 144.
↑ Cro. Jac. 198.
↑ Stat. 31 Eliz. c. 6. 12 Ann. c. 12.
↑ Stat. 1 Eliz. c. 1 & 2. 13 Eliz. c. 12.
↑ Stat. 13 Eliz. c. 12. 14 Car. II. c. 4. 1 Geo. I. c. 6.
↑ Stat. 1 Eliz. c. 2.
↑ Stat. 1 W. & M. c. 26.
↑ 6 Rep. 29, 30.
↑ 1 Burn. eccl. law. 427.
↑ Stat. 28 Hen. VIII. c. 11.
↑ Stat. 12 Ann. st. 2. c. 12.
↑ In Sweden they have similar officers, whom they call kiorckiowariandes. Stiernhook. l. 3. c. 7.
↑ Stat. 1 Eliz. c. 2.
↑ 1 Lev. 196.
↑ See Lambard of churchwardens, at the end of his eirenarcha; and Dr Burn, tit. church, churchwardens, visitation.
↑ 2 Roll. Abr. 234.
↑ Cro. Car. 589.
Chapter the twelfth.
Of the CIVIL STATE.
THE lay part of his majesty’s subjects, or such of the people as are not comprehended under the denomination of clergy, may be divided into three distinct states, the civil, the military, and the maritime.
That part of the nation which falls under our first and most comprehensive division, the civil state, includes all orders of men from the highest nobleman to the meanest peasant, that are not included under either our former division, of clergy, or under one of the two latter, the military and maritime states: and it may sometimes include individuals of the other three orders; since a nobleman, a knight, a gentleman, or a peasant, may become either a divine, a soldier, or a seaman.
The civil state consists of the nobility and the commonalty. Of the nobility, the peerage of Great Britain, or lords temporal, as forming (together with the bishops) one of the supreme branches of the legislature, I have before sufficiently spoken: we are here to consider them according to their several degrees, or titles of honour.
All degrees of nobility and honour are derived from the king as their fountain[1]: and he may institute what new titles he pleases. Hence it is that all degrees of honour are not of equal antiquity. Those now in use are dukes, marquesses, earls, viscounts, and barons[2].
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A duke, though it be with us, as a mere title of nobility, inferior in point of antiquity to many others, yet it is superior to all of them in rank; being the first title of dignity after the royal family[3]. Among the Saxons the Latin name of dukes, duces, is very frequent, and signified, as among the Romans, the commanders or leaders of their armies, whom in their own language they called Peretoga[4]; and in the laws of Henry I (as translated by Lambard) we find them called heretochii. But after the Norman conquest, which changed the military polity of the nation, the kings themselves continuing for many generations dukes of Normandy, they would not honour any subjects with that title, till the time of Edward III; who, claiming to be king of France, and thereby losing the ducal in the royal dignity, in the eleventh year of his reign created his son, Edward the black prince, duke of Cornwall: and many, of the royal family especially, were afterwards raised to the same honour. However, in the reign of queen Elizabeth, A. D. 1572[5], the whole order became utterly extinct: but it was revived about fifty years afterwards by her successor, who was remarkably prodigal of honours, in the person of George Villiers duke of Buckingham.
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A marquess, marchio, is the next degree of nobility. His office formerly was (for dignity and duty were never separated by our ancestors) to guard the frontiers and limits of the kingdom; which were called the marches, from the teutonic word, marche, a limit: as, in particular, were the marches of Wales and Scotland, while they continued to be enemies countries. The persons, who had command there, were called lords marchers, or marquesses; whose authority was abolished by statute 27 Hen. VIII. c. 27: though the title had long before been made a mere ensign of honour; Robert Vere, earl of Oxford, being created marquess of Dublin, by Richard II in the eighth year of his reign[6].
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An earl is a title of nobility so antient, that it’s original cannot clearly be traced out. Thus much seems tolerably certain: that among the Saxons they were called ealdormen, quasi elder men, signifying the same as senior or senator among the Romans and also schiremen, because they had each of them the civil government of a several division or shire. On the irruption of the Danes, they changed the name to eorles, which, according to Camden[7], signified the same in their language. In Latin they are called comites (a title first used in the empire) from being the king’s attendants; “a societate nomen sumpserunt, reges enim tales sibi associant[8].” After the Norman Conquest they were for some time called counts, or countees, from the French; but they did not long retain that name themselves, though their shires are from thence called counties to this day. It is now become a mere title, they having nothing to do with the government of the county; which, as has been more than once observed, is now entirely devolved on the sheriff, the earl’s deputy, or vice-comes. In writs, and commissions, and other formal instruments, the king, when he mentions any peer of the degree of an earl, frequently stiles him “trusty and well beloved cousin:” an appellation as antient as the reign of Henry IV; who being either by his wife, his mother, or his sisters, actually related or allied to every earl in the kingdom, artfully and constantly acknowleged that connexion in all his letters and other public acts; from whence the usage has descended to his successors, though the reason has long ago failed.
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The name of vice-comes or viscount was afterwards made use of as an arbitrary title of honour, without any shadow of office pertaining to it, by Henry the sixth; when in the eighteenth year of his reign, he created John Beaumont a peer, by the name of viscount Beaumont, which was the first instance of the kind[9].
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A baron’s is the most general and universal title of nobility; for originally every one of the peers of superior rank had also a barony annexed to his other titles[10]. But it hath sometimes happened that, when an antient baron hath been raised to a new degree of peerage, in the course of a few generations the two titles have descended differently; one perhaps to the male descendants, the other to the heirs general; whereby the earldom or other superior title hath subsisted without a barony: and there are also modern instances where earls and viscounts have been created without annexing a barony to their other honours: so that now the rule doth not hold universally, that all peers are barons. The original and antiquity of baronies has occasioned great enquiries among our English antiquarians. The most probable opinion seems to be, that they were the same with our present lords of manors; to which the name of court baron, (which is the lord’s court, and incident to every manor) gives some countenance. It may be collected from king John’s magna carta[11], that originally all lords of manors, or barons, that held of the king in capite, had seats in the great council or parliament, till about the reign of that prince the conflux of them became so large and troublesome, that the king was obliged to divide them, and summon only the greater barons in person; leaving the small ones to be summoned by the sheriff, and (as it is said) to sit by representation in another house; which gave rise to the separation of the two houses of parliament[12]. By degrees the title came to be confined to the greater barons, or lords of parliament only; and there were no other barons among the peerage but such as were summoned by writ, in respect of the tenure of their lands or baronies, till Richard the second first made it a mere title of honor, by conferring it on divers persons by his letters patent[13].
Having made this short enquiry into the original of our several degrees of nobility, I shall next consider the manner in which they may be created. The right of peerage seems to have been originally territorial; that is, annexed to lands, honors, castles, manors, and the like, the proprietors and possessors of which were (in right of those estates) allowed to be peers of the realm, and were summoned to parliament to do suit and service to their sovereign: and, when the land was alienated, the dignity passed with it as appendant. Thus the bishops still sit in the house of lords in right of succession to certain antient baronies annexed, or supposed to be annexed, to their episcopal lands[14]: and thus, in 11 Hen. VI, the possession of the castle of Arundel was adjudged to confer an earldom on it’s possessor[15]. But afterwards, when alienations grew to be frequent, the dignity of peerage was confined to the lineage of the party ennobled, and instead of territorial became personal. Actual proof of a tenure by barony became no longer necessary to constitute a lord of parliament; but the record of the writ of summons to him or his ancestors was admitted as a sufficient evidence of the tenure.
Peers are now created either by writ, or by patent: for those who claim by prescription must suppose either a writ or patent made to their ancestors; though by length of time it is lost. The creation by writ, or the king’s letter, is a summons to attend the house of peers, by the stile and title of that barony, which the king is pleased to confer: that by patent is a royal grant to a subject of any dignity and degree of peerage. The creation by writ is the more antient way; but a man is not ennobled thereby, unless he actually takes his seat in the house of lords: and some are of opinion that there must be at least two writs of summons, and a sitting in two distinct parliaments, to evidence an hereditary barony[16]: and therefore the most usual, because the surest, way is to grant the dignity by patent, which enures to a man and his heirs according to the limitations thereof, though he never himself makes use of it[17]. Yet it is frequent to call up the eldest son of a peer to the house of lords by writ of summons, in the name of his father’s barony: because in that case there is no danger of his children’s losing the nobility in case he never takes his seat; for they will succeed to their grandfather. Creation by writ has also one advantage over that by patent: for a person created by writ holds the dignity to him and his heirs, without any words to that purport in the writ; but in letters patent there must be words to direct the inheritance, else the dignity enures only to the grantee for life[18]. For a man or woman may be created noble for their own lives, and the dignity not descend to their heirs at all, or descend only to some particular heirs: as where a peerage is limited to a man, and the heirs male of his body by Elizabeth his present lady, and not to such heirs by any former or future wife.
Let us next take a view of a few of the principal incidents attending the nobility, exclusive of their capacity as members of parliament, and as hereditary counsellors of the crown; both of which we have before considered. And first we must observe, that in criminal cases a nobleman shall be tried by his peers. The great are always obnoxious to popular envy: were they to be judged by the people, they might be in danger from the prejudice of their judges; and would moreover be deprived of the privilege of the meanest subjects, that of being tried by their equals, which is fecured to all the realm by magna carta, c. 29. It is said, that this does not extend to bishops; who, though they are lords of parliament, and sit there by virtue of their baronies which they hold jure ecclesiae, yet are not ennobled in blood, and consequently not peers with the nobility[19]. As to peeresses, no provision was made for their trial when accused of treason or felony, till after Eleanor duchess of Gloucester, wife to the lord protector, had been accused of treason and found guilty of witchcraft, in an ecclesiastical synod, through the intrigues of cardinal Beaufort. This very extraordinary trial gave occasion to a special statute, 20 Hen. VI. c. 9. which enacts that peeresses, either in their own right or by marriage, shall be tried before the same judicature as peers of the realm. If a woman, noble in her own right, marries a commoner, she still remains noble, and shall be tried by her peers: but if she be only noble by marriage, then by a second marriage, with a commoner, she loses her dignity; for as by marriage it is gained, by marriage it is also lost. Yet if a duchess dowager marries a baron, she continues a duchess still; for all the nobility are pares, and therefore it is no degradation[20]. A peer, or peeress (either in her own right or by marriage) cannot be arrested in civil cases[21]: and they have also many peculiar privileges annexed to their peerage in the course of judicial proceedings. A peer, sitting in judgment, gives not his verdict upon oath, like an ordinary juryman, but upon his honour[22]: he answers also to bills in chancery upon his honour, and not upon his oath[23]; but, when he is examined as a witness either in civil or criminal cases, he must be sworn[24]: for the respect, which the law shews to the honour of a peer, does not extend so far as to overturn a settled maxim, that in judicio non creditur nisi juratis[25]. The honour of peers is however so highly tendered by the law, that it is much more penal to spread false reports of them, and certain other great officers of the realm, than of other men: scandal against them being called by the peculiar name of scandalum magnatum, and subjected to peculiar punishment by divers antient statutes[26].
A peer cannot lose his nobility, but by death or attainder; though there was an instance, in the reign of Edward the fourth, of the degradation of George Nevile duke of Bedford by act of parliament[27], on account of his poverty, which rendered him unable to support his dignity[28]. But this is a singular instance: which serves at the same time, by having happened, to shew the power of parliament; and, by having happened but once, to shew how tender the parliament hath been, in exerting so high a power. It hath been said indeed[29], that if a baron waste his estate, so that he is not able to support the degree, the king may degrade him: but it is expressly held by later authorities[30], that a peer cannot be degraded but by act of parliament.
The commonalty, like the nobility, are divided into several degrees; and, as the lords, though different in rank, yet all of them are peers in respect of their nobility, so the commoners, though some are greatly superior to others, yet all are in law peers, in respect of their want of nobility[31].
The first name of dignity, next beneath a peer, was antiently that of vidames, vice domini, or valvasors[32]: who are mentioned by our antient lawyers[33] as viri magnae dignitatis; and sir Edward Coke[34] speaks highly of them. Yet they are now quite out of use; and our legal antiquarians are not agreed upon even their original or antient office.
Now therefore the first dignity, after the nobility, is a knight of the order of St. George, or of the garter; first instituted by Edward III, A. D. 1344[35]. Next follows a knight banneret; who indeed by statutes 5 Ric. II. st. 2. c. 4. and 14 Ric. II. c. 11. is ranked next after barons: and that precedence was confirmed to him by order of king James I, in the tenth year of his reign[36]. But, in order to intitle himself to this rank, he must have been created by the king in person, in the field, under the royal banners, in time of open war[37]. Else he ranks after baronets; who are the next order: which title is a dignity of inheritance, created by letters patent, and usually descendible to the issue male. It was first instituted by king James the first, A. D. 1611. in order to raise a competent sum for the reduction of the province of Ulster in Ireland; for which reason all baronets have the arms of Ulster superadded to their family coat. Next follow knights of the bath; an order instituted by king Henry IV, and revived by king George the first. They are so called from the ceremony of bathing, the night before their creation. The last of these inferior nobility are knights bachelors; the most antient, though the lowest, order of knighthood amongst us: for we have an instance[38] of king Alfred’s conferring this order on his son Athelstan. The custom of the antient Germans was to give their young men a shield and a lance in the great council: this was equivalent to the toga virilis of the Romans: before this they were not permitted to bear arms, but were accounted as part of the father’s houshold; after it, as part of the public[39]. Hence some derive the usage of knighting, which has prevailed all over the western world, since it’s reduction by colonies from those northern heroes. Knights are called in Latin equites aurati; aurati, from the gilt spurs they wore; and equites, because they always served on horseback: for it is observable[40], that almost all nations call their knights by some appellation derived from an horse. They are also called in our law milites, because they formed a part, or indeed the whole, of the royal army, in virtue of their feodal tenures; one condition of which was, that every one who held a knight’s fee (which in Henry the second’s time[41] amounted to 20𝑙. per annum) was obliged to be knighted, and attend the king in his wars, or fine for his non-compliance. The exertion of this prerogative, as an expedient to raise money in the reign of Charles the first, gave great offence; though warranted by law, and the recent example of queen Elizabeth: but it was, at the restoration, together with all other military branches of the feodal law, abolished; and this kind of knighthood has, since that time, fallen into great disregard.
These, sir Edward Coke says[42], are all the names of dignity in this kingdom, esquires and gentlemen being only names of worship. But before these last the heralds rank all colonels, serjeants at law, and doctors in the three learned professions.
Esquires and gentlemen are confounded together by sir Edward Coke, who observes[43], that every esquire is a gentleman, and a gentleman is defined to be one qui arma gerit, who bears coat armour, the grant of which adds gentility to a man’s family: in like manner as civil nobility, among the Romans, was founded in the jus imaginum, or having the image of one ancestor at least, who had borne some curule office. It is indeed a matter somewhat unsettled, what constitutes the distinction, or who is a real esquire: for it is not an estate, however large, that confers this rank upon it’s owner. Camden, who was himself a herald, distinguishes them the most accurately; and he reckons up four sorts of them[44]: 1. The eldest sons of knights, and their eldest sons, in perpetual succession[45]. 2. The younger sons of peers, and their eldest sons, in like perpetual succession: both which species of esquires sir Henry Spelman entitles armigeri natalitii[46]. 3. Esquires created by the king’s letters patent, or other investiture; and their eldest sons. 4. Esquires by virtue of their offices; as justices of the peace, and others who bear any office of trust under the crown. To these may be added the esquires of knights of the bath, each of whom constitutes three at his installation: and all foreign, nay, Irish peers; for not only these, but the eldest sons of peers of Great Britain, though frequently titular lords, are only esquires in the law, and must so be named in all legal proceedings[47]. As for gentlemen, says sir Thomas Smith[48], they be made good cheap in this kingdom: for whosoever studieth the laws of the realm, who studieth in the universities, who professeth liberal sciences, and (to be short) who can live idly, and without manual labour, and will bear the port, charge, and countenance of a gentleman, he shall be called master, and shall be taken for a gentleman. A yeoman is he that hath free land of forty shillings by the year; who is thereby qualified to serve on juries, vote for knights of the shire, and do any other act, where the law requires one that is probus et legalis homo[49].
The rest of the commonalty are tradesmen, artificers, and labourers; who (as well as all others) must in pursuance of the statute 1 Hen. V. c. 5. be stiled by the name and addition of their estate, degree, or mystery, in all actions and other legal proceedings.
↑ 4 Inst. 363.
↑ For the original of these titles on the continent of Europe, and their subsequent introduction into this island, see Mr. Selden’s titles of honour.
↑ Camden. Britan. tit. ordines.
↑ This is apparently derived from the same root as the German herrzogen, the antient appellation of dukes in that country. Seld. tit. hon. 2. 1. 12.
↑ Camden. Britan. tit. ordines. Spelman. Gloss. 191.
↑ 2 Inst. 5.
↑ Ibid.
↑ Bracton. l. 1. c. 8. Flet. l. 1. c. 5.
↑ 2 Inst. 5.
↑ 2 Inst. 5, 6.
↑ cap. 14.
↑ Gilb. hist. of exch. c. 3. Seld. tit. of hon. 2. 5. 21.
↑ 1 Inst. 9. Seld. Jan. Angl. 2, §. 66.
↑ Glanv. l. 7. c. 1.
↑ Seld. tit. of hon. b. 2. c. 9. §. 5.
↑ Whitelocke of parl. ch. 114.
↑ Co. Litt. 16.
↑ Co. Litt. 9. 16.
↑ 3 Inst. 30, 31.
↑ 2 Inst. 50.
↑ Finch. L. 355. 1 Ventr. 298.
↑ 2 Inst. 49.
↑ 1 P. Wms. 146.
↑ Salk. 512.
↑ Cro. Car. 64.
↑ 3 Edw. I. c. 34. 2 Ric. II. st. 1. c. 5. 12 Ric. II. c. 11.
↑ 4 Inst. 355.
↑ The preamble to the act is remarkable: “forasmuch as oftentimes it is seen, that when any lord is called to high estate, and hath not convenient livelyhood to support the same dignity, it induceth great poverty and indigence, and causeth oftentimes great extortion, embracery, and maintenance to be had; to the great trouble of all such countries where such estate shall happen to be: therefore, &c.”
↑ Moor. 678.
↑ 12 Rep. 107. 12 Mod. 56.
↑ 2 Inst. 29.
↑ Camden. ibid.
↑ Bracton. l. 1. c. 8.
↑ 2 Inst. 667.
↑ Seld. tit. of hon. 2. 5. 41.
↑ Ibid. 2. 11. 3.
↑ 4 Inst. 6.
↑ Will. Malmsb. lib. 2.
↑ Tac. de morib. Germ. 13.
↑ Camden. ibid. Co. Litt. 74.
↑ Glanvil. l. 9. c. 4.
↑ 2 Inst. 667.
↑ 2 Inst. 668.
↑ Ibid.
↑ 2 Inst. 667.
↑ Gloss. 43.
↑ 3 Inst. 30. 2 Inst. 667.
↑ Commonw. of Eng. b. 1. c. 20.
↑ 2 Inst. 668.
Chapter the thirteenth.
Of the MILITARY and MARITIME STATES.
THE military state includes the whole of the soldiery; or, such persons as are peculiarly appointed among the rest of the people, for the safeguard and defence of the realm.
In a land of liberty it is extremely dangerous to make a distinct order of the profession of arms. In absolute monarchies this is necessary for the safety of the prince, and arises from the main principle of their constitution, which is that of governing by fear: but in free states the profession of a soldier, taken singly and merely as a profession, is justly an object of jealousy. In these no man should take up arms, but with a view to defend his country and it’s laws: he puts not off the citizen when he enters the camp; but it is because he is a citizen, and would wish to continue so, that he makes himself for a while a soldier. The laws therefore and constitution of these kingdoms know no such state as that of a perpetual standing soldier, bred up to no other profession than that of war: and it was not till the reign of Henry VII, that the kings of England had so much as at guard about their persons.
In the time of our Saxon ancestors, as appears from Edward the confessor’s laws[1], the military force of this kingdom was in the hands of the dukes or heretochs, who were constituted through every province and county in the kingdom; being taken out of the principal nobility, and such as were most remarkable for being “sapientes, fideles, et animofi” Their duty was to lead and regulate the English armies, with a very unlimited power; “prout cis visum fuerit, ad honorem coronae et utilitatem regni.” And because of this great power they were elected by the people in their full assembly, or folkmote, in the same manner as sheriffs were elected: following still that old fundamental maxim of the Saxon constitution, that where any officer was entrusted with such power, as if abused might tend to the oppression of the people, that power was delegated to him by the vote of the people themselves[2]. So too, among the antient Germans, the ancestors of our Saxon forefathers, they had their dukes, as well as kings, with an independent power over the military, as the kings had over the civil state. The dukes were elective, the kings hereditary: for so only can be consistently understood that passage of Tacitus[3], “reges ex nobilitate, duces ex virtute sumunt;” in constituting their kings, the family or blood royal was regarded, in chusing their dukes or leaders, warlike merit: just as Ceasar relates of their ancestors in his time, that whenever they went to war, by way either of attack or defence, they elected leaders to command them[4]. This large share of power, thus conferred by the people, though intended to preserve the liberty of the subject, was perhaps unreasonably detrimental to the prerogative of the crown: and accordingly we find a very ill use made of it by Edric duke of Mercia, in the reign of king Edmond Ironside; who, by his office of duke or heretoch, was entitled to a large command in the king’s army, and by his repeated treacheries at last transferred the crown to Canute the Dane.
It seems universally agreed by all historians, that king Alfred first settled a national militia in this kingdom, and by his prudent discipline made all the subjects of his dominion soldiers: but we are unfortunately left in the dark as to the particulars of this his so celebrated regulation; though, from what was last observed, the dukes seem to have been left in possession of too large and independent a power: which enabled duke Harold on the death of Edward the confessor, though a stranger to the royal blood, to mount for a short space the throne of this kingdom, in prejudice of Edgar Atheling the rightful heir.
Upon the Norman conquest the feodal law was introduced here in all it’s rigor, the whole of which is built upon a military plan. I shall not now enter into the particulars of that constitution, which belongs more properly to the next part of our commentaries: but shall only observe, that, in consequence thereof, all the lands in the kingdom were divided into what were called knight’s fees, in number above sixty thousand; and for every knight’s fee a knight or soldier, miles, was bound to attend the king in his wars, for forty days in a year; in which space of time, before war was reduced to a science, the campaign was generally finished, and a kingdom either conquered or victorious[5]. By this means the king had, without any expense, an army of sixty thousand men always ready at his command. And accordingly we find one, among the laws of William the conqueror[6], which in the king’s name commands and firmly enjoins the personal attendance of all knights and others; “quod habeant et teneant se semper in armis et equis, ut decet et oportet; et quod semper sint prompti et parati ad servitium suum integrum nobis explendum et peragendum, cum opus adfuerit, secundum quod debent de feodis et tenementis suis de jure nobu facere”. This personal service in process of time degenerated into pecuniary commutations or aids, and at last the military part of the feodal system was abolished at the restoration, by statute 12 Car. II. c. 24.
In the mean time we are not to imagine that the kingdom was left wholly without defence, in case of domestic insurrections, or the prospect of foreign invasions. Besides those, who by their military tenures were bound to perform forty days service in the field, the statute of Winchester[7] obliged every man, according to his estate and degree, to provide a determinate quantity of such arms as were then in use, in order to keep the peace: and constables were appointed in all hundreds to see that such arms were provided. These weapons were changed, by the statute 4 & 5 Ph. & M. c. 2. into others of more modern service; but both this and the former provision were repealed in the reign of James I[8]. While these continued in force, it was usual from time to time for our princes to issue commissons of array, and send into every county officers in whom they could confide, to muster and array (or set in military order) the inhabitants of every district: and the form of the commission of array was settled in parliament in the 5 Hen. IV[9]. But at the same time it was provided[10], that no man should be compelled to go out of the kingdom at any rate, nor out of his shire but in cases of urgent necessity; nor should provide soldiers unless by consent of parliament. About the reign of king Henry the eighth, and his children, lord lieutenants began to be introduced, as standing representatives of the crown, to keep the counties in military order; for we find them mentioned as known officers in the statute 4 & 5 Ph. & M. c. 3. though they had not been then long in use, for Camden speaks of them[11], in the time of queen Elizabeth, as extraordinary magistrates constituted only in times of difficulty and danger.
In this state things continued, till the repeal of the statutes of armour in the reign of king James the first: after which, when king Charles the first had, during his northern expeditions, issued commissions of lieutenancy and exerted some military powers which, having been long exercised, were thought to belong to the crown, it became a question in the long parliament, how far the power of the militia did inherently reside in the king; being now unsupported by any statute, and founded only upon immemorial usage. This question, long agitated with great heat and resentment on both sides, became at length the immediate cause of the fatal rupture between the king and his parliament: the two houses not only denying this prerogative of the crown, the legality of which right perhaps might be somewhat doubtful; but also seising into their own hands the intire power of the militia, the illegality of which step could never be any doubt at all.
Soon after the restoration of king Charles the second, when the military tenures were abolished, it was thought proper to ascertain the power of the militia, to recognize the sole right of the crown to govern and command them, and to put the whole into a more regular method of military subordination[12]: and the order, in which the militia now stands by law, is principally built upon the statutes which were then enacted. It is true the two last of them are apparently repealed; but many of their provisions are re-enacted, with the addition of some new regulations, by the present militia laws: the general scheme of which is to discipline a certain number of the inhabitants of every county, chosen by lot for three years, and officered by the lord lieutenant, the deputy lieutenants, and other principal landholders, under a commission from the crown. They are not compellable to march out of their counties, unless in case of invasion or actual rebellion, nor in any case compellable to march out of the kingdom. They are to be exercised at stated times: and their discipline in general is liberal and easy; but, when drawn out into actual service, they are subject to the rigours of martial law, as necessary to keep them in order. This is the constitutional security, which our laws have provided for the public peace, and for protecting the realm against foreign or domestic violence; and which the statutes[13] declare is essentially necessary to the safety and prosperity of the kingdom.
When the nation was engaged in war, more veteran troops and more regular discipline were esteemed to be necessary, than could be expected from a mere militia. And therefore at such times more rigorous methods were put in use for the raising of armies and the due regulation and discipline of the soldiery: which are to be looked upon only as temporary excrescences bred out of the distemper of the state, and not as any part of the permanent and perpetual laws of the kingdom. For martial law, which is built upon no settled principles, but is entirely arbitrary in it’s decisions, is, as sir Matthew Hale observes[14], in truth and reality no law, but something indulged, rather than allowed as a law: the necessity of order and discipline in an army is the only thing which can give it countenance; and therefore it ought not to be permitted in time of peace, when the king’s courts are open for all persons to receive justice according to the laws of the land. Wherefore Thomas earl of Lancaster being condemned at Pontefract, 15 Edw. II. by martial law, his attainder was reversed 1 Edw. III. because it was done in time of peace[15]. And it is laid down[16], that if a lieutenant, or other, that hath commission of martial authority, doth in time of peace hang or otherwise execute any man by colour of martial law, this is murder; for it is against magna carta[17]. And the petition of right[18] enacts, that no soldier shall be quartered on the subject without his own consent[19]; and that no commission shall issue to proceed within this land according to martial law. And whereas, after the restoration, king Charles the second kept up about five thousand regular troops, by his own authority, for guards and garrisons; which king James the second by degrees increased to no less than thirty thousand, all paid from his own civil list; it was made one of the articles of the bill of rights[20], that the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law.
But, as the fashion of keeping standing armies has universally prevailed over all Europe of late years (though some of it’s potentates, being unable themselves to maintain them, are obliged to have recourse to richer powers, and receive subsidiary pensions for that purpose) it has also for many years part been annually judged necessary by our legislature, for the safety of the kingdom, the defence of the possessions of the crown of Great Britain, and the preservation of the balance of power in Europe, to maintain even in time of peace a standing body of troops, under the command of the crown; who are however ipso facto disbanded at the expiration of every year, unless continued by parliament.
To prevent the executive power from being able to oppress, says baron Montesquieu[21], it is requisite that the armies with which it is entrusted should consist of the people, and have the same spirit with the people; as was the case at Rome, till Marius new-modelled the legions by enlifting the rabble of Italy, and laid the foundation of all the military tyranny that ensued. Nothing then, according to these principles, ought to be more guarded against in a free state, than making the military power, when such a one is necessary to be kept on foot, a body too distinct from the people. Like ours therefore, it should wholly be composed of natural subjects; it ought only to be enlifted for a short and limited time; the soldiers also should live intermixed with the people; no separate camp, no barracks, no inland fortresses should be allowed. And perhaps it might be still better, if, by dismissing a stated number and enlifting others at every renewal of their term, a circulation could be kept up between the army and the people, and the citizen and the soldier be more intimately connected together.
To keep this body of troops in order, an annual act of parliament likewise passes, “to punish mutiny and desertion, and for the better payment of the army and their quarters.” This regulates the manner in which they are to be dispersed among the several inn-keepers and victuallers throughout the kingdom; and establishes a law martial for their government. By this, among other things, it is enacted, that if any officer and soldier shall excite, or join any mutiny, or, knowing of it, shall not give notice to the commanding officer; or shall desert, or lift in any other regiment, or sleep upon his post, or leave it before he is relieved, or hold correspondence with a rebel or enemy, or strike or use violence to his superior officer, or shall disobey his lawful commands; such offender shall suffer such punishment as a court martial shall inflict, though it extend to death itself.
However expedient the most strict regulations may be in time of actual war, yet, in times of profound peace, a little relaxation of military rigour would not, one should hope, be productive of much inconvenience. And, upon this principle, though by our standing laws[22] (still remaining in force, though not attended to) desertion in time of war is made felony, without benefit of clergy, and the offence is triable by a jury and before the judges of the common law; yet, by our militia laws before-mentioned, a much lighter punishment is inflicted for desertion in time of peace. So, by the Roman law also, desertion in time of war was punished with death, but more mildly in time of tranquillity[23]. But our mutiny act makes no such distinction: for any of the faults above-mentioned are, equally at all times, punishable with death itself, if a court martial shall think proper. This discretionary power of the court martial is indeed to be guided by the directions of the crown; which, with regard to military offences, has almost an absolute legislative power. “His majesty, says the act, may form articles of war, and constitute courts martial, with power to try any crime by such articles, and inflict such penalties as the articles direct.” A vast and most important trust! an unlimited power to create crimes, and annex to them any punishments, not extending to life or limb! These are indeed forbidden to be inflicted, except for crimes declared to be so punishable by this act; which crimes we have just enumerated, and, among which, we may observe that any disobedience to lawful commands is one. Perhaps in some future revision of this act, which is in many respects hastily penned, it may be thought worthy the wisdom of parliament to ascertain the limits of military subjection, and to enact express articles of war for the government of the army, as is done for the government of the navy: especially as, by our present constitution, the nobility and gentry of the kingdom, who serve their country as militia officers, are annually subjected to the same arbitrary rule, during their time of exercise.
One of the greatest advantages of our English law is, that not only the crimes themselves which it punishes, but also the penalties which it inflicts, are ascertained and notorious: nothing is left to arbitrary discretion: the king by his judges dispenses what the law has previously ordained; but is not himself the legislator. How much therefore is it to be regretted that a set of men, whose bravery has so often preserved the liberties of their country, should be reduced to a state of servitude in the midst of a nation of freemen! for sir Edward Coke will inform us[24], that it is one of the genuine marks of servitude, to have the law, which is our rule of action, either concealed or precarious: “misera est servitus, ubi jus est vagum aut incognitum.” Nor is this state of servitude quite consistent with the maxims of found policy observed by other free nations. For, the greater the general liberty is which any state enjoys, the more cautious has it usually been of introducing slavery in any particular order or profession. These men, as baron Montesquieu observes[25], seeing the liberty which others possess, and which they themselves are excluded from, are apt (like eunuchs in the eastern seraglios) to live in a state of perpetual envy and hatred towards the rest of the community; and indulge a malignant pleasure in contributing to destroy those privileges, to which they can never be admitted. Hence have many free states, by departing from this rule, been endangered by the revolt of their slaves: while, in absolute and despotic governments where no real liberty exists, and consequently no invidious comparisons can be formed, such incidents are extremely rare. Two precautions are therefore advised to be observed in all prudent and free governments: 1. To prevent the introduction of slavery at all: or, 2. If it be already introduced, not to intrust those slaves with arms; who will then find themselves an overmatch for the freemen. Much less ought the soldiery to be an exception to the people in general, and the only state of servitude in the nation.
But as soldiers, by this annual act, are thus put in a worse condition than any other subjects, so, by the humanity of our standing laws, they are in some cases put in a much better. By statute 43 Eliz. c. 3. a weekly allowance is to be raised in every county for the relief of soldiers that are sick, hurt, and maimed: not forgetting the royal hospital at Chelsea for such as are worn out in their duty. Officers and soldiers, that have been in the king’s service, are by several statutes, enacted at the close of several wars, at liberty to use any trade or occupation they are fit for, in any town in the kingdom (except the two universities) notwithstanding any statute, custom, or charter to the contrary. And soldiers in actual military service may make nuncupative wills, and dispose of their goods, wages, and other personal chattels, without those forms, solemnities, and expenses, which the law requires in other cases[26]. Our law does not indeed extend this privilege so far as the civil law; which carried it to an extreme that borders upon the ridiculous. For if a soldier, in the article of death, wrote any thing in bloody letters on his shield, or in the dust of the field with his sword, it was a very good military testament[27]. And thus much for the military state, as acknowleged by the laws of England.
The maritime state is nearly related to the former; though much more agreeable to the principles of our free constitution. The royal navy of England hath ever been it’s greatest defence and ornament; it is it’s antient and natural strength; the floating bulwark of the island; an army, from which, however strong and powerful, no danger can ever be apprehended to liberty: and accordingly it has been assiduously cultivated, even from the earliest ages. To so much perfection was our naval reputation arrived in the twelfth century, that the code of maritime laws, which are called the laws of Oleron, and are received by all nations in Europe as the ground and substruction of all their marine constitutions, was confessedly compiled by our king Richard the first, at the isle of Oleron on the coast of France, then part of the possessions of the crown of England[28]. And yet, so vastly inferior were our ancestors in this point to the present age, that even in the maritime reign of queen Elizabeth, sir Edward Coke[29] thinks it matter of boast, that the royal navy of England then consisted of three and thirty ships. The present condition of our marine is in great measure owing to the salutary provisions of the statutes, called the navigation-acts; whereby the constant increase of English shipping and seamen was not only encouraged, but rendered unavoidably necessary. By the statute 5 Ric. II. c. 3. in order to augment the navy of England, then greatly diminished, it was ordained, that none of the king’s liege people should ship any merchandize out of or into the realm but only in ships of the king’s ligeance, on pain of forfeiture. In the next year, by statute 6 Ric. II. c. 8. this wise provision was enervated, by only obliging the merchants to give English ships (if able and sufficient) the preference. But the most beneficial statute for the trade and commerce of these kingdoms is that navigation-act, the rudiments of which were first framed in 1650[30], with a narrow partial view: being intended to mortify the sugar islands, which were disaffected to the parliament and still held out for Charles II, by stopping the gainful trade which they then carried on with the Dutch[31]; and at the same time to clip the wings of those our opulent and aspiring neighbours. This prohibited all ships of foreign nations from trading with any English plantations without licence from the council of state. In 1651[32] the prohibition was extended also to the mother country; and no goods were suffered to be imported into England, or any of it’s dependencies, in any other than English bottoms; or in the ships of that European nation of which the merchandize imported was the genuine growth or manufacture. At the restoration, the former provisions were continued, by statute 12 Car. II. c. 18. with this very material improvement, that the master and three fourths of the mariners shall also be English subjects.
Many laws have been made for the supply of the royal navy with seamen; for their regulation when on board; and to confer privileges and rewards on them during and after their service.
- First, for their supply. The power of impressing men for the sea service by the king’s commission, has been a matter of some dispute, and submitted to with great reluctance; though it hath very clearly and learnedly been shewn by sir Michael Foster[33], that the practice of impressing, and granting powers to the admiralty for that purpose, is of very antient date, and hath been uniformly continued by a regular series of precedents to the present time: whence he concludes it to be part of the common law[34]. The difficulty arises from hence, that no statute has expressly declared this power to be in the crown, though many of them very strongly imply it. The statute 2 Ric. II. c. 4. speaks of mariners being arrested and retained for the king’s service, as of a thing well known, and practised without dispute; and provides a remedy against their running away. By a later statute[35], if any waterman, who uses the river Thames, shall hide himself during the execution of any commission of pressing for the king’s service, he is liable to heavy penalties. By another[36], no fisherman shall be taken by the queen’s commission to serve as a mariner; but the commission shall be first brought to two justices of the peace, inhabiting near the sea coast where the mariners are to be taken, to the intent that the justices may chuse out and return such a number of ablebodied men, as in the commission are contained, to serve her majesty. And, by others[37], especial protections are allowed to seamen in particular circumstances, to prevent them from being impressed. All which do most evidently imply a power of impressing to reside somewhere; and, if any where, it must from the spirit of our constitution, as well as from the frequent mention of the king’s commission, reside in the crown alone.
But, besides this method of impressing, (which is only defensible from public necessity, to which all private considerations must give way) there are other ways that tend to the increase of seamen, and manning the royal navy. Parishes may bind out poor boys apprentices to masters of merchantmen, who shall be protected from impressing for the first three years; and if they are impressed afterwards, the masters shall be allowed their wages[38]: great advantages in point of wages are given to volunteer seamen in order to induce them to enter into his majesty’s service[39]: and every foreign seaman, who during a war shall serve two years in any man of war, merchantman, or privateer, is naturalized ipso facto[40]. About the middle of king William’s reign, a scheme was set on foot[41] for a register of seamen to the number of thirty thousand, for a constant and regular supply of the king’s fleet; with great privileges to the registered men, and, on the other hand, heavy penalties in case of their non-appearance when called for: but this registry, being judged to be rather a badge of slavery, was abolished by statute 9 Ann. c. 21.
-
The method of ordering seamen in the royal fleet, and keeping up a regular discipline there, is directed by certain express rules, articles, and orders, first enacted by the authority of parliament soon after the restoration[42]; but since new-modelled and altered, after the peace of Aix la Chapelle[43] to remedy some defects which were of fatal consequence in conducting the preceding war. In these articles of the navy almost every possible offence is set down, and the punishment thereof annexed: in which respect the seamen have much the advantage over their brethren in the land service; whose articles of war are not enacted by parliament, but framed from time to time at the pleasure of the crown. Yet from whence this distinction arose, and why the executive power, which is limited so properly with regard to the navy, should be so extensive with regard to the army, it is hard to assign a reason: unless it proceeded from the perpetual establishment of the navy, which rendered a permanent law for their regulation expedient; and the temporary duration of the army, which subsisted only from year to year, and might therefore with less danger be subjected to discretionary government. But, whatever was apprehended at the first formation of the mutiny act, the regular renewal of our standing force at the entrance of every year has made this distinction idle. For, if from experience past we may judge of future events, the army is now lastingly ingrafted into the British constitution; with this singularly fortunate circumstance, that any branch of the legislature may annually put an end to it’s legal existence, by refusing to concur in it’s continuance.
-
With regard to the privileges conferred on sailors, they are pretty much the same with those conferred on soldiers; with regard to relief, when maimed, or wounded, or superannuate, either by county rates, or the royal hospital at Greenwich; with regard also to the exercise of trades, and the power of making nuncupative testaments: and, farther[44], no seaman aboard his majesty’s ships can be arrested for any debt, unless the same be sworn to amount to at least twenty pounds; though, by the annual mutiny act, a soldier may be arrested for a debt which extends to half that value, but not to a less amount.
↑ c. de heretochiis.
↑ “Isti vero viri eliguntur per commune consilium, pro communi utilitate regni, per provincias et patrias universas, et per singulos comitatus, in pleno folkmote, sicut et vice-comites provinciarum et comitatuum eligi debent.” LL. Edw. Confess. ibid. See also Bede, eccl. hist. l. 5. c. 10.
↑ De morib. German. 7.
↑ “Quum bellum civitas aut illatum defendit, aut infert, magistratus qui ei bello praesint deliguntur.” De bell. Gall. l. 6. c. 22.
↑ The Poles are, even at this day, so tenacious of their antient constitution, that their pospolite, or militia, cannot be compelled to serve above six weeks, or forty days, in a year. Mod. Un. Hist. xxxiv. 12.
↑ c. 58. See Co. Litt. 75, 76.
↑ 13 Edw. I. c. 6.
↑ Stat. 1 Jac. I. c. 25. 21 Jac. I. c. 28.
↑ Rushworth. part 3. pag. 667.
↑ Stat. 1 Edw. III. st. 2. c. 5 & 7. 25 Edw. III. st. 5. c. 8.
↑ Brit. 103. Edit. 1594.
↑ 13 Car. II. c. 6. 14 Car. II. c. 3. 15 Car. II. c. 4.
↑ 30 Geo. II. c. 25, &c.
↑ Hist. C. L. c. 2.
↑ 2 Brad. Append. 59.
↑ 3 Inst. 52.
↑ cap. 29.
↑ 3 Car. I. See also stat. 31 Car. II. c. 1.
↑ Thus, in Poland, no soldier can be quartered upon the gentry, the only freemen in that republic. Mod. Univ. Hist. xxxiv. 23.
↑ Stat. 1 W. & M. st. 2. c. 2.
↑ Sp. L. 11. 6.
↑ Stat. 18 Hen. VI. c. 19. 2 & 3 Edw. VI. c. 2.
↑ Ff. 49. 16. 5.
↑ 4 Inst. 332.
↑ Sp. L. 15. 12.
↑ Stat. 29 Car. II. c. 3. 5 W. III. c. 21. §. 6.
↑ Si milites quid in clypeo literis sanguine suo rutilantibus adnotaverint, aut in pulvere inscripserint gladio suo, ipso tempore quo, in praelio, vitae sortem derelinquunt, hujusmodi voluntatem stabilem esse oportet. Cod. 6. 21. 15.
↑ 4 Inst. 144. Coutumes de la mer. 2.
↑ 4 Inst. 50.
↑ Scobell. 132.
↑ Mod. Un. Hist. xli. 289.
↑ Scobell. 176.
↑ Rep. 154.
↑ See also Comb. 245.
↑ Stat. 2 & 3 Ph. & M. c. 16.
↑ Stat. 5 Eliz. c. 5.
↑ Stat. 7 & 8 W. III. c. 21. 2 Ann. c. 6. 4 & 5 Ann. c. 19. 13 Geo. II. c. 17. &c.
↑ Stat. 2 Ann. c. 6.
↑ Stat. 1 Geo. II. st. 2. c. 14.
↑ Stat. 13 Geo. II. c. 3.
↑ Stat. 7 & 8 W. III. c. 21.
↑ Stat. 13 Car. II. st. 1. c. 9.
↑ Stat. 22 Geo. II. c. 23.
↑ Stat. 1 Geo II. st. 2. c. 14.
Chapter the fourteenth.
Of MASTER and SERVANT.
HHAVING thus commented on the rights and duties of persons, as standing in the public relations of magistrates and people, the method I have marked out now leads me to consider their rights and duties in private oeconomical relations.
The three great relations in private life are, 1. That of master and servant; which is founded in convenience, whereby a man is directed to call in the assistance of others, where his own skill and labour will not be sufficient to answer the cares incumbent upon him. 2. That of husband and wife; which is founded in nature, but modified by civil society: the one directing man to continue and multiply his species, the other prescribing the manner in which that natural impulse must be confined and regulated. 3. That of parent and child, which is consequential to that of marriage, being it’s principal end and design: and it is by virtue of this relation that infants are protected, maintained, and educated. But, since the parents, on whom this care is primarily incumbent, may be snatched away by death or otherwise, before they have completed their duty, the law has therefore provided a fourth relation; 4. That of guardian and ward, which is a kind of artificial parentage, in order to supply the deficiency, whenever it happens, of the natural. Of all these relations in their order.
In discussing the relation of master and servant, I shall, first, consider the several sorts of servants, and how this relation is created and destroyed: secondly, the effect of this relation with regard to the parties themselves: and, lastly, it’s effect with regard to other persons.
I. As to the several sorts of servants: I have formerly observed[1] that pure and proper slavery does not, nay cannot, subsist in England; such I mean, whereby an absolute and unlimited power is given to the master over the life and fortune of the slave. And indeed it is repugnant to reason, and the principles of natural law, that such a state should subsist any where. The three origins of the right of slavery, assigned by Justinian[2], are all of them, built upon false foundations. As, first, slavery is held to arise “jure gentium” from a state of captivity in war; whence slaves are called mancipia, quasi manu capti. The conqueror, say the civilians, had a right to the life of his captive; and, having spared that, has a right to deal with him as he pleases. But it is an untrue position, when taken generally, that, by the law of nature or nations, a man may kill his enemy: he has only a right to kill him, in particular cases; in cases of absolute necessity, for self-defence; and it is plain this absolute necessity did not subsist, since the victor did not actually kill him, but made him prisoner. War is itself justifiable only on principles of self-preservation; and therefore it gives no other right over prisoners, but merely to disable them from doing harm to us, by confining their persons: much less can it give a right to kill, torture, abuse, plunder, or even to enslave, an enemy, when the war is over. Since therefore the right of making slaves by captivity, depends on a supposed right of slaughter, that foundation failing, the consequence drawn from it must fail likewise. But, secondly, it is said that slavery may begin “jure civili;” when one man sells himself to another. This, if only meant of contracts to serve or work for another, is very just: but when applied to strict slavery, in the sense of the laws of old Rome or modern Barbary, is also impossible. Every sale implies a price, a quid pro quo, an equivalent given to the seller in lieu of what he transfers to the buyer: but what equivalent can be given for life, and liberty, both of which (in absolute slavery) are held to be in the master’s disposal? His property also, the very price he seems to receive, devolves ipso facto to his master, the instant he becomes his slave. In this case therefore the buyer gives nothing, and the seller receives nothing: of what validity then can a sale be, which destroys the very principles upon which all sales are founded? Lastly, we are told, that besides these two ways by which slaves “fiunt,” or are acquired, they may also be hereditary: “servi nascuntur;” the children of acquired slaves are, jure naturae, by a negative kind of birthright, slaves also. But this, being built on the two former rights, must fall together with them. If neither captivity, nor the sale of one’s self, can by the law of nature and reason reduce the parent to slavery, much less can they reduce the offspring.
Upon these principles the law of England abhors, and will not endure the existence of, slavery within this nation: so that when an attempt was made to introduce it, by statute 1 Edw. VI. c. 3. which ordained, that all idle vagabonds should be made slaves, and fed upon bread, water, or small drink, and refuse meat; should wear a ring of iron round their necks, arms, or legs; and should be compelled by beating, chaining, or otherwise, to perform the work assigned them, were it never so vile; the spirit of the nation could not brook this condition, even in the most abandoned rogues; and therefore this statute was repealed in two years afterwards[3]. And now it is laid down[4], that a slave or negro, the instant he lands in England, becomes a freeman; that is, the law will protect him in the enjoyment of his person, and his property. Yet, with regard to any right which the matter may have acquired to the perpetual service of John or Thomas, this will remain exactly in the same state as before: for this is no more than the same state of subjecton for life, which every apprentice submits to for the space of seven years, or sometimes for a longer term. Hence too it follows, that the infamous and unchristian practice of withholding baptism from negro servants, left they should thereby gain their liberty, is totally without foundation, as well as without excuse. The law of England acts upon general and extensive principles: it gives liberty, rightly understood, that is, protection, to a jew, a turk, or a heathen, as well as to those who profess the true religion of Christ; and it will not dissolve a civil obligation between master and servant, on account of the alteration of faith in either of the parties: but the slave is entitled to the same protection in England before, as after, baptism; and, whatever service the heathen negro owed to his American master, the same is he bound to render when brought to England and made a christian.
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The first sort of servants therefore, acknowleged by the laws of England, are menial servants; so called from being intra moenia, or domestics. The contract between them and their masters arises upon the hiring. If the hiring be general without any particular time limited, the law construes it to be a hiring for a year[5]; upon a principle of natural equity, that the servant shall serve, and the master maintain him, throughout all the revolutions of the respective seasons; as well when there is work to be done, as when there is not[6]: but the contract may be made for any larger or smaller term. All single men between twelve years old and sixty, and married ones under thirty years of age, and all single women between twelve and forty, not having any visible livelihood, are compellable by two justices to go out to service in husbandry or certain specific trades, for the promotion of honest industry: and no master can put away his servant, or servant leave his master, after being so retained, either before or at the end of his term, without a quarter’s warning; unless upon reasonable cause to be allowed by a justice of the peace[7]: but they may part by consent, or make a special bargain.
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Another species of servants are called apprentices (from apprendre, to learn) and are usually bound for a term of years, by deed indented or indentures, to serve their masters, and be maintained and instructed by them. This is usually done to persons of trade, in order to learn their art and mystery; and sometimes very large sums are given with them, as a premium for such their instruction: but it may be done to husbandmen, nay to gentlemen, and others. And[8] children of poor persons may be apprenticed out by the overseers, with consent of two justices, till twenty four years of age, to such persons as are thought fitting; who are also compellable to take them: and it is held, that gentlemen of fortune, and clergymen, are equally liable with others to such compulsion[9]: for which purposes our statutes have made the indentures obligatory, even though such parish-apprentice be a minor[10]. Apprentices to trades may be discharged on reasonable cause, either at request of themselves or masters, at the quarter sessions, or by one justice, with appeal to the sessions[11]; who may, by the equity of the statute, if they think it reasonable, direct restitution of a ratable share of the money given with the apprentice[12]: and parish apprentices may be discharged in the same manner, by two justices[13]. But if an apprentice, with whom less than ten pounds hath been given, runs away from his master, he is compellable to serve out his time of absence, or make satisfaction for the same, at any time within seven years after the expiration of his original contract[14].
-
A third species of servants are labourers, who are only hired by the day or the week, and do not live intra moenia, as part of the family; concerning whom the statutes before cited[15] have made many very good regulations; 1. Directing that all persons who have no visible effects may be compelled to work; 2. Defining how long they must continue at work in summer and winter: 3. Punishing such as leave or desert their work: 4. Empowering the justices at sessions, or the sheriff of the county, to settle their wages: and 5. Inflicting penalties on such as either give, or exact, more wages than are so settled.
-
There is yet a fourth species of servants, if they may be so called, being rather in a superior, a ministerial, capacity; such as stewards, factors, and bailiffs: whom however the law considers as servants pro tempore, with regard to such of their acts, as affect their master’s or employer’s property. Which leads me to consider,
II. The manner in which this relation, of service, affects either the master or servant. And, first, by hiring and service for a year, or apprenticeship under indentures, a person gains a settlement in that parish wherein he last served forty days[16]. In the next place persons, serving as apprentices to any trade, have an exclusive right to exercise that trade in any part of England[17]. This law, with regard to the exclusive part of it, has by turns been looked upon as a hard law, or as a beneficial one, according to the prevailing humour of the times: which has occasioned a great variety of resolutions in the courts of law concerning it; and attempts have been frequently made for it’s repeal, though hitherto without success. At common law every man might use what trade he pleased; but this statute restrains that liberty to such as have served as apprentices: the adversaries to which provision say, that all restrictions (which tend to introduce monopolies) are pernicious to trade; the advocates for it allege, that unskilfulness in trades is equally detrimental to the public, as monopolies. This reason indeed only extends to such trades, in the exercise whereof skill is required: but another of their arguments goes much farther; viz. that apprenticeships are useful to the commonwealth, by employing of youth, and learning them to be early industrious; but that no one would be induced to undergo a seven years servitude, if others, though equally skilful, were allowed the same advantages without having undergone the same discipline: and in this there seems to be much reason. However, the resolutions of the courts have in general rather confined than extended the restriction. No trades are held to be within the statute, but such as were in being at the making of it[18]: for trading in a country village, apprenticeships are not requisite[19]: and following the trade seven years is sufficient without any binding; for the statute only says, the person must serve as an apprentice, and does not require an actual apprenticeship to have existed[20].
A master may by law correct his apprentice or servant for negligence or other misbehaviour, so it be done with moderation[21]: though, if the master’s wife beats him, it is good cause of departure[22]. But if any servant, workman, or labourer assaults his master or dame, he shall suffer one year’s imprisonment, and other, open corporal punishment, not extending to life or limb[23].
By service all servants and labourers, except apprentices, become entitled to wages: according to their agreement, if menial servants; or according to the appointment of the sheriff or sessions, if labourers or servants in husbandry: for the statutes for regulation of wages extend to such servants only[24]; it being impossible for any magistrate to be a judge of the employment of menial servants, or of course to assess their wages.
III. Let us, lastly, see how strangers may be affected by this relation of master and servant: or how a master may behave towards others on behalf of his servant; and what a servant may do on behalf of his master.
And, first, the master may maintain, that is, abet and assist his servant in any action at law against a stranger: whereas, in general, it is an offence against public justice to encourage suits and animosities, by helping to bear the expense of them, and is called in law maintenance[25]. A master also may bring an action against any man for beating or maiming his servant; but in such case he must assign, as a special reason for so doing, his own damage by the loss of his service; and this loss must be proved upon the trial[26]. A master likewise may justify an assault in defence of his servant, and a servant in defence of his master[27]: the master, because he has an interest in his servant, not to be deprived of his service; the servant, because it is part of his duty, for which he receives his wages, to stand by and defend his master[28]. Also if any person do hire or retain my servant, being in my service, for which the servant departeth from me and goeth to serve the other, I may have an action for damages against both the new master and the servant, or either of them: but if the new master did not know that he is my servant, no action lies; unless he afterwards refuse to restore him upon information and demand[29]. The reason and foundation upon which all this doctrine is built, seem to be the property that every man has in the service of his domestics; acquired by the contract of hiring, and purchased by giving them wages.
As for those things which a servant may do on behalf of his master, they seem all to proceed upon this principle, that the master is answerable for the act of his servant, if done by his command, either expressly given, or implied: nam qui facit per alium, facit per se[30]. Therefore, if the servant commit a trespass by the command or encouragement of his master, the master shall be guilty of it: not that the servant is excused, for he is only to obey his master in matters that are honest and lawful. If an innkeeper’s servants rob his guests, the master is bound to restitution[31]: for as there is a confidence reposed in him, that he will take care to provide honest servants, his negligence is a kind of implied consent to the robbery; nam, qui non prohibet, cum prohibere possit, jubet. So likewise if the drawer at a tavern sells a man bad wine, whereby his health is injured, he may bring an action against the master[32]: for, although the master did not expressly order the servant to sell it to that person in particular, yet his permitting him to draw and sell it at all is impliedly a general command.
In the same manner, whatever a servant is permitted to do in the usual course of his business, is equivalent to a general command. If I pay money to a banker’s servant, the banker is answerable for it: if I pay it to a clergyman’s or a physician’s servant, whose usual business it is not to receive money for his master, and he imbezzles it, I must pay it over again. If a steward lets a lease of a farm, without the owner’s knowlege, the owner must stand to the bargain; for this is the steward’s business. A wife, a friend, a relation, that use to transact business for a man, are quoad hoc his servants; and the principal must answer for their conduct: for the law implies, that they act under a general command; and, without such a doctrine as this, no mutual intercourse between man and man could subsist with any tolerable convenience. If I usually deal with a tradesman by myself, or constantly pay him ready money, I am not answerable for what my servant takes up upon trust; for here is no implied order to the tradesman to trust my servant: but if I usually send him upon trust, or sometimes on trust and sometimes with ready money, I am answerable for all he takes up; for the tradesman cannot possibly distinguish when he comes by my order, and when upon his own authority[33].
If a servant, lastly, by his negligence does any damage to a stranger, the master shall answer for his neglect: if a smith’s servant lames a horse while he is shoing him, an action lies against the master, and not against the servant. But in these cases the damage must be done, while he is actually employed in the master’s service; otherwise the servant shall answer for his own misbehaviour. Upon this principle, by the common law[34], if a servant kept his master’s fire negligently, so that his neighbour’s house was burned down thereby, an action lay against the master; because this negligence happened in his service: otherwise, if the servant, going along the street with a torch, by negligence sets fire to a house; for there he is not in his master’s immediate service, and must himself answer the damage personally. But now the common law is, in the former case, altered by statute 6 Ann. c. 3. which ordains that no action shall be maintained against any, in whose house or chamber any fire shall accidentally begin; for their own loss is sufficient punishment for their own or their servants’ carelessness. But if such fire happens through negligence of any servant (whose loss is commonly very little) such servant shall forfeit 100𝑙, to be distributed among the sufferers; and, in default of payment, shall be committed to some workhouse and there kept to hard labour for eighteen months[35]. A master is, lastly, chargeable if any of his family layeth or casteth any thing out of his house into the street or common highway, to the damage of any individual, or the common nusance of his majesty’s liege people[36]: for the master hath the superintendance and charge of all his houshold. And this also agrees with the civil law[37]; which holds, that the pater familias, in this and similar cases, “ob alterius culpam tenetur, sive servi, sive liberi.”
We may observe, that in all the cases here put, the master may be frequently a loser by the trust reposed in his servant, but never can be a gainer: he may frequently be answerable for his servant’s misbehaviour, but never can shelter himself from punishment by laying the blame on his agent. The reason of this is still uniform and the same; that the wrong done by the servant is looked upon in law as the wrong of the master himself; and it is a standing maxim, that no man shall be allowed to make any advantage of his own wrong.
↑ pag. 127.
↑ Servi aut fiunt, aut nascuntur: fiunt jure gentium, aut jure civili: nascuntur ex ancillis nostris. Inst. 1. 3. 4.
↑ Stat. 3 & 4 Edw. VI. c. 16.
↑ Salk. 666.
↑ Co. Litt. 42.
↑ F. N. B. 168.
↑ Stat. 5 Eliz. c. 4.
↑ Stat. 5 Eliz. c. 4. 43 Eliz. c. 2. 1 Jac. I. c. 25. 7 Jac. I. c. 3. 8 & 9 W. & M. c. 30. 2 & 3 Ann. c. 6. 4 Ann. c. 19. 17 Geo. II. c. 5.
↑ Salk. 57. 491.
↑ Stat. 5 Eliz. c. 4. 43 Eliz. c. 2. Cro. Car. 179.
↑ Stat. 5 Eliz. c. 4.
↑ Salk. 67.
↑ Stat. 20 Geo. II. c. 19.
↑ Stat. 6 Geo. III. c. 26.
↑ Stat. 5 Eliz. c. 4. 6 Geo. III. c. 26.
↑ See pag. 364.
↑ Stat. 5 Eliz. c. 4.
↑ Lord Raym. 514.
↑ 1 Ventr. 51. 2 Keb. 583.
↑ Lord Raym. 1179.
↑ 1 Hawk. P. C. 130. Lamb. Eiren. 127.
↑ F. N. B. 168.
↑ Stat. 5 Eliz. c. 4.
↑ 2 Jones. 47.
↑ 2 Roll. Abr. 115.
↑ 9 Rep. 113.
↑ 2 Roll. Abr. 546.
↑ In like manner, by the laws of king Alfred, c. 38. a servant was allowed to fight for his master, a parent for his child, and a husband or father for the chastity of his wife or daughter.
↑ F. N. B. 167, 168.
↑ 4 Inst. 109.
↑ Noy’s max. c. 43.
↑ 1 Roll. Abr. 95.
↑ Dr. & Stud. d. 2. c. 42. Noy’s max. c. 44.
↑ Noy’s max. c. 44.
↑ Upon a similar principle, by the law of the twelve tables at Rome, a person by whose negligence any fire began was bound to pay double to the sufferers; or if he was not able to pay, was to suffer a corporal punishment.
↑ Noy’s max. c. 44.
↑ Ff. 9. 3. 1. Inst. 4. 5. 1.
Chapter the fifteenth.
Of HUSBAND and WIFE.
THE second private relation of persons is that of marriage, which includes the reciprocal rights and duties of husband and wife; or, as most of our elder law books call them, of baron and feme. In the consideration of which I shall in the first place enquire, how marriages may be contracted or made; shall next point out the manner in which they may be dissolved; and shall, lastly, take a view of the legal effects and consequence of marriage.
I. Our law considers marriage in no other light than as a civil contract. The holiness of the matrimonial state is left entirely to the ecclesiastical law: the temporal courts not having jurisdiction to consider unlawful marriage as a sin, but merely as a civil inconvenience. The punishment therefore, or annulling, of incestuous or other unscriptural marriages, is the province of the spiritual courts; which act pro salute animae[1]. And, taking it in this civil light, the law treats it as it does all other contracts; allowing it to be good and valid in all cases, where the parties at the time of making it were, in the first place, willing to contract; secondly, able to contract; and, lastly, actually did contract, in the proper forms and solemnities required by law.
First, they must be willing to contract. “Consensus, non concubitus, facit nuptias,” is the maxim of the civil law in this case[2]: and it is adopted by the common lawyers[3], who indeed have borrowed (especially in antient times) almost all their notions of the legitimacy of marriage from the canon and civil laws.
Secondly, they must be able to contract. In general, all persons are able to contract themselves in marriage, unless they labour under some particular disabilities, and incapacities. What those are, it will here be our business to enquire.
Now these disabilities are of two sorts: first, such as are canonical, and therefore sufficient by the ecclesiastical laws to avoid the marriage in the spiritual court; but these in our law only make the marriage voidable, and not ipso facto void, until sentence of nullity be obtained. Of this nature are pre-contract; consanguinity, or relation by blood; and affinity, or relation by marriage; and some particular corporal infirmities. And these canonical disabilities are either grounded upon the express words of the divine law, or are consequences plainly deducible from thence: it therefore being sinful in the persons, who labour under them, to attempt to contract matrimony together, they are properly the object of the ecclesiastical magistrate’s coercion; in order to separate the offenders, and inflict penance for the offence, pro salute animarum. But such marriages not being void ab initio, but voidable only by sentence of separation, they are esteemed valid to all civil purposes, unless such separation is actually made during the life of the parties. For, after the death of either of them, the courts of common law will not suffer the spiritual court to declare such marriages to have been void; because such declaration cannot now tend to the reformation of the parties[4]. And therefore when a man had married his first wife’s sister, and after her death the bishop’s court was proceeding to annul the marriage and bastardize the issue, the court of king’s bench granted a prohibition quoad hoc; but permitted them to proceed to punish the husband for incest[5]. These canonical disabilities, being entirely the province of the ecclesiastical courts, our books are perfectly silent concerning them. But there are a few statutes, which serve as directories to those courts, of which it will be proper to take notice. By statute 32 Hen. VIII. c. 38. it is declared, that all persons may lawfully marry, but such as are prohibited by God’s law; and that all marriages contracted by lawful persons in the face of the church, and consummate with bodily knowlege, and fruit of children, shall be indissoluble. And (because in the times of popery a great variety of degrees of kindred were made impediments to marriage, which impediments might however be bought off for money) it is declared by the same statute, that nothing (God’s law except) shall impeach any marriage, but within the Levitical degrees; the fartheft of which is that between uncle and niece[6]. By the same statute all impediments, arising from pre-contracts to other persons, were abolished and declared of none effect, unless they had been consummated with bodily knowlege: in which case the canon law holds such contract to be a marriage de facto. But this branch of the statute was repealed by statute 2 & 3 Edw. VI. c. 23. How far the act of 26 Geo. II. c. 33. (which prohibits all suits in ecclesiastical courts to compel a marriage, in consequence of any contract) may collaterally extend to revive this clause of Henry VIII’s statute, and abolish the impediment of pre-contract, I leave to be considered by the canonists.
The other sort of disabilities are those which are created, or at least enforced, by the municipal laws. And, though some of them may be grounded on natural law, yet they are regarded by the laws of the land, not so much in the light of any moral offence, as on account of the civil inconveniences they draw after them. These civil disabilities make the contract void ab initio, and not merely voidable: not that they dissolve a contract already formed, but they render the parties incapable of forming any contract at all: they do not put asunder those who are joined together, but they previously hinder the junction. And, if any persons under these legal incapacities come together, it is a meretricious, and not a matrimonial, union.
-
The first of these legal disabilities is a prior marriage, or having another husband or wife living; in which case, besides the penalties consequent upon it as a felony, the second marriage is to all intents and purposes void[7]: polygamy being condemned both by the law of the new testament, and the policy of all prudent states, especially in these northern climates. And Justinian, even in the climate of modern Turkey, is express[8], that “duas uxores eodem tempore habere non licet.”
-
The next legal disability is want of age. This is sufficient to avoid all other contracts, on account of the imbecillity of judgment in the parties contracting; a fortiori therefore it ought to avoid this, the most important contract of any. Therefore if a boy under fourteen, or a girl under twelve years of age, marries, this marriage is only inchoate and imperfect; and, when either of them comes to the age of consent aforesaid, they may disagree and declare the marriage void, without any divorce or sentence in the spiritual court. This is founded on the civil law[9]. But the canon law pays a greater regard to the constitution, than the age, of the parties[10]: for if they are habiles ad matrimonium, it is a good marriage, whatever their age may be. And in our law it is so far a marriage, that, if at the age of consent they agree to continue together, they need not be married again[11]. If the husband be of years of discretion, and the wife under twelve, when she comes to years of discretion he may disagree as well as she may: for in contracts the obligation must be mutual; both must be bound, or neither: and so it is, vice versa, when the wife is of years of discretion, and the husband under[12].
-
Another incapacity arises from want of consent of parents or guardians. By the common law, if the parties themselves were of the age of consent, there wanted no other concurrence to make the marriage valid: and this was agreeable to the canon law. But, by several statutes[13], penalties of 100𝑙. are laid on every clergyman who marries a couple either without publication of banns (which may give notice to parents or guardians) or without a licence, to obtain which the consent of parents or guardians must be sworn to. And by the statute 4 & 5 Ph. & M. c. 8. whosoever marries any woman child under the age of sixteen years, without consent of parents or guardians, shall be subject to fine, or five years imprisonment: and her estate during the husband’s life shall go to and be enjoyed by the next heir. The civil law indeed required the consent of the parent or tutor at all ages; unless the children were emancipated, or out of the parents power[14]: and, if such consent from the father was wanting, the marriage was null, and the children illegitimate[15]; but the consent of the mother or guardians, if unreasohably withheld, might be redressed and supplied by the judge, or the president of the province[16]: and if the father was non compos, a similar remedy was given[17]. These provisions are adopted and imitated by the French and Hollanders, with this difference: that in France the sons cannot marry without consent of parents till thirty years of age, nor the daughters till twenty five[18]; and in Holland, the sons are at their own disposal at twenty five, and the daughters at twenty[19]. Thus hath stood, and thus at present stands, the law in other neighbouring countries. And it has lately been thought proper to introduce somewhat of the same policy into our laws, by statute 26 Geo. II. c. 33. whereby it is enacted, that all marriages celebrated by licence (for banns suppose notice) where either of the parties is under twenty-one, (not being a widow or widower, who are supposed emancipated) without the consent of the father, or, if he be not living, of the mother or guardians, shall be absolutely void. A like provision is made as in the civil law, where the mother or guardian is non compos, beyond sea, or unreasonably froward, to dispense with such consent at the discretion of the lord chancellor: but no provision is made, in case the father should labour under any mental or other incapacity. Much may be, and much has been, said both for and against this innovation upon our antient laws and constitution. On the one hand, it prevents the clandestine marriage of minors, which are often a terrible inconvenience to those private families wherein they happen. On the other hand, restraints upon marriages, especially among the lower class, are evidently detrimental to the public, by hindering the encrease of people; and to religion and morality, by encouraging licentiousness and debauchery among the single of both sexes; and thereby destroying one end of society and government, which is, concubitu prohibere vago. And of this last inconvenience the Roman laws were so sensible, that at the same time that they forbad marriage without the consent of parents or guardians, they were less rigorous upon that very account with regard to other restraints: for, if a parent did not provide a husband for his daughter, by the time me arrived at the age of twenty five, and she afterwards made a slip in her conduct, he was not allowed to disinherit her upon that account; “quia non sua culpa, sed parentum, id commisisse cognoscitur[20].”
-
A fourth incapacity is want of reason; without a competent share of which, as no other, so neither can the matrimonial contract, be valid[21]. It was formerly adjudged, that the issue of an idiot was legitimate, and consequently that his marriage was valid. A strange determination! since consent is absolutely requisite to matrimony, and neither idiots nor lunatics are capable of consenting to any thing. And therefore the civil law judged much more sensibly, when it made such deprivations of reason a previous impediment; though not a cause of divorce, if they happened after marriage[22]. And modern resolutions have adhered to the reason of the civil law, by determining[23] that the marriage of a lunatic, not being in a lucid interval, was absolutely void. But as it might be difficult to prove the exact state of the party’s mind at the actual celebration of the nuptials, upon this account (concurring with some private family[24] reasons) the statute 15 Geo. II. c. 30. has provided, that the marriage of lunatics and persons under phrenzies (if found lunatics under a commission, or committed to the care of trustees by any act of parliament) before they are declared of found mind by the lord chancellor or the majority of such trustees, shall be totally void.
Lastly, the parties must not only be willing, and able to contract, but actually must contract themselves in due form of law, to make it a good civil marriage. Any contract made, per verba de praesenti, or in words of the present tense, and in case of cohabitation per verba de futuro also, between persons able to contract, was before the late act deemed a valid marriage to many purposes; and the parties might be compelled in the spiritual courts to celebrate it in facie ecclesiae. But these verbal contracts are now of no force, to compel a future marriage[25]. Neither is any marriage at present valid, that is not celebrated in some parish church or public chapel, unless by dispensation from the arch-bishop of Canterbury. It must also be preceded by publication of banns, or by licence from the spiritual judge. Many other formalities are likewise prescribed by the act; the neglect of which, though penal, does not invalidate the marriage. It is held to be also essential to a marriage, that it be performed by a person in orders[26], though the intervention of a priest to solemnize this contract is merely juris positivi, and not juris naturalis aut divini: it being said that pope Innocent the third was the first who ordained the celebration of marriage in the church[27]; before which it was totally a civil contract. And, in the times of the grand rebellion, all marriages were performed by the justices of the peace; and these marriages were declared valid, without any fresh solemnization, by statute 12 Car. II. c. 33. But, as the law now stands, we may upon the whole collect, that no marriage by the temporal law is ipso facto void, that is celebrated by a person in orders, — in a parish church or public chapel (or elsewhere, by special dispensation) — in pursuance of banns or a licence, — between single persons, — consenting, — of found mind, — and of the age of twenty one years; — or of the age of fourteen in males and twelve in females, with consent of parents or guardians, or without it, in case of widowhood. And no marriage is voidable by the ecclesiastical law, after the death of either of the parties; nor during their lives, unless for the canonical impediments of pre-contract, if that indeed still exists; of consanguinity; and of affinity, or corporal imbecillity, subsisting previous to the marriage.
II. I am next to consider the manner in which marriages may be dissolved; and this is either by death, or divorce. There are two kinds of divorce, the one total, the other partial; the one a vinculo matrimonii, the other merely a mensa et thoro. The total divorce, a vinculo matrimonii, must be for some of the canonical causes of impediment before-mentioned; and those, existing before the marriage, as is always the case in consanguinity; not supervenient, or arising afterwards, as may be the case in affinity or corporal imbecillity. For in cases of total divorce, the marriage is declared null, as having been absolutely unlawful ab initio; and the parties are therefore separated pro salute animarum: for which reason, as was before observed, no divorce can be obtained, but during the life of the parties. The issue of such marriage, as is thus entirely dissolved, are bastards[28].
Divorce a mensa et thoro is when the marriage is just and lawful ab initio, and therefore the law is tender of dissolving it; but, for some supervenient cause, it becomes improper or impossible for the parties to live together: as in the case of intolerable ill temper, or adultery, in either of the parties. For the canon law, which the common law follows in this case, deems so highly and with such mysterious reverence of the nuptial tie, that it will not allow it to be unloosed for any cause whatsoever, that arises after the union is made. And this is said to be built on the divine revealed law; though that expressly assigns incontinence as a cause, and indeed the only cause, why a man may put away his wife and marry another[29]. The civil law, which is partly of pagan original, allows many causes of absolute divorce; and some of them pretty severe ones, (as if a wife goes to the theatre or the public games, without the knowlege and consent of the husband[30]) but among them adultery is the principal, and with reason named the first[31]. But with us in England adultery is only a cause of separation from bed and board[32]: for which the best reason that can be given, is, that if divorces were allowed to depend upon a matter within the power of either the parties, they would probably be extremely frequent; as was the case when divorces were allowed for canonical disabilities, on the mere confession of the parties[33], which is now prohibited by the canons[34]. However, divorces a vinculo matrimonii, for adultery, have of late years been frequently granted by act of parliament.
In case of divorce a mensa et thoro, the law allows alimony to the wife; which is that allowance, which is made to a woman for her support out of the husband’s estate; being settled at the discretion of the ecclesiastical judge, on consideration of all the circumstances of the case. This is sometimes called her estovers; for which, if he refuses payment, there is (besides the ordinary process of excommunication) a writ at common law de estoveriis habendis, in order to recover it[35]. It is generally proportioned to the rank and quality of the parties. But in case of elopement, and living with an adulterer, the law allows her no alimony[36].
III. Having thus shewn how marriages may be made, or dissolved, I come now, lastly, to speak of the legal consequences of such making, or dissolution.
By marriage, the husband and wife are one person in law[37]: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-french a feme-covert, foemina viro co-operta; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of an union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. I speak not at present of the rights of property, but of such as are merely personal. For this reason, a man cannot grant any thing to his wife, or enter into covenant with her[38]: for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself: and therefore it is also generally true, that all compacts made between husband and wife, when single, are voided by the intermarriage[39]. A woman indeed may be attorney for her husband[40]; for that implies no separation from, but is rather a representation of, her lord. And a husband may also bequeath any thing to his wife by will; for that cannot take effect till the coverture is determined by his death[41]. The husband is bound to provide his wife with necessaries by law, as much as himself; and if she contracts debts for them, he is obliged to pay them[42]; but, for any thing besides necessaries, he is not chargeable[43]. Also if a wife elopes, and lives with another man, the husband is not chargeable even for necessaries[44]; at least if the person, who furnishes them, is sufficiently apprized of her elopement[45]. If the wife be indebted before marriage, the husband is bound afterwards to pay the debt; for he has adopted her and her circumstances together[46]. If the wife be injured in her person or her property, she can bring no action for redress without her husband’s concurrence, and in his name, as well as her own[47]: neither can she be sued, without making the husband a defendant[48]. There is indeed one case where the wife shall sue and be sued as a feme sole, viz. where the husband has abjured the realm, or is banished[49]: for then he is dead in law; and, the husband being thus disabled to sue for or defend the wife, it would be most unreasonable if fhe had no remedy, or could make no defence at all. In criminal prosecutions, it is true, the wife may be indicted and punished separately[50]; for the union is only a civil union. But, in trials of any sort, they are not allowed to be evidence for, or against, each other[51]: partly because it is impossible their testimony should be indifferent; but principally because of the union of person: and therefore, if they were admitted to be witnesses for each other, they would contradict one maxim of law, “nemo in propria causa testis esse debet;” and if against each other, they would contradict another maxim, “nemo tenetur seipsum accusare.” But where the offence is directly against the person of the wife, this rule has been usually dispensed with[52]: and therefore, by statute 3 Hen. VII. c. 2. in case a woman be forcibly taken away, and married, she may be a witness against such her husband, in order to convict him of felony. For in this case she can with no propriety be reckoned his wife; because a main ingredient, her consent, was wanting to the contract: and also there is another maxim of law, that no man shall take advantage of his own wrong; which the ravisher here would do, if by forcibly marrying a woman, he could prevent her from being a witness, who is perhaps the only witness, to that very fact.
In the civil law the husband and the wife are considered as two distinct persons; and may have separate estates, contracts, debts, and injuries[53]: and therefore, in our ecclesiastical courts, a woman may sue and be sued without her husband[54].
But, though our law in general considers man and wife as one person, yet there are some instances in which she is separately considered; as inferior to him, and acting by his compulsion. And therefore all deeds executed, and acts done, by her, during her coverture, are void; except it be a fine, or the like matter of record, in which case me must be solely and secretly examined, to learn if her act be voluntary[55]. She cannot by will devise lands to her husband, unless under special circumstances; for at the time of making it she is supposed to be under his coercion[56]. And in some felonies, and other inferior crimes, committed by her, through constraint of her husband, the law excuses her[57]: but this extends not to treason or murder.
The husband also (by the old law) might give his wife moderate correction[58]. For, as he is to answer for her misbehaviour, the law thought it reasonable to intrust him with this power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his servants or children; for whom the master or parent is also liable in some cases to answer. But this power of correction was confined within reasonable bounds[59]; and the husband was prohibited from using any violence to his wife, aliter quam ad virum, ex causa regiminis et castigationis uxoris suae, licite et rationabiliter pertinet[60]. The civil law gave the husband the same, or a larger, authority over his wife; allowing him, for some misdemesnors, flagellis et fustibus acriter verberare uxorem; for others, only modicam castigationem adhibere[61]. But, with us, in the politer reign of Charles the second, this power of correction began to be doubted[62]: and a wife may now have security of the peace against her husband[63]; or, in return, a husband against his wife[64]. Yet the lower rank of people, who were always fond of the old common law, still claim and exert their antient privilege: and the courts of law will still permit a husband to restrain a wife of her liberty, in case of any gross misbehaviour[65].
These are the chief legal effects of marriage during the coverture; upon which we may observe, that even the disabilities, which the wife lies under, are for the most part intended for her protection and benefit. So great a favourite is the female sex of the laws of England.
↑ Salk. 121.
↑ Ff. 50. 17. 30.
↑ Co. Litt. 33.
↑ Ibid.
↑ Salk. 548.
↑ Gilb. Rep. 158.
↑ Bro. Abr. tit. Bastardy. pl. 8.
↑ Inst. 1. 10. 6.
↑ Leon. Constit. 109.
↑ Decretal. l. 4. tit. 2. qu. 3.
↑ Co. Litt. 79.
↑ Ibid.
↑ 6 & 7 Will. III. c. 6. 7 & 8 W. III. c. 35. 10 Ann. c. 19.
↑ Ff. 23. 2. 2, & 18.
↑ Ff. 1. 5. 11.
↑ Cod. 5. 4. 1, & 20.
↑ Inst. 1. 10. 1.
↑ Domat, of Dowries. §. 2. Montesq. Sp. L. 23. 7.
↑ Vinnius in Inst. l. 1. t. 10.
↑ Nov. 115. §. 11.
↑ 1 Roll. Abr. 357.
↑ Ff. 23. tit. 1. l. 8. & tit. 2. l. 16.
↑ Morrison’s case, coram Delegat.
↑ See private acts 23 Geo. II. c. 6.
↑ Stat. 26 Geo. II. c. 33.
↑ Salk. 119.
↑ Moor. 170.
↑ Co. Litt. 235.
↑ Matt. xix. 9.
↑ Nov. 117.
↑ Cod. 5. 17. 8.
↑ Moor. 683.
↑ 2 Mod. 314.
↑ Can. 1603. c. 105.
↑ 1 Lev. 6.
↑ Cowel. tit. Alimony.
↑ Co. Litt. 112.
↑ Ibid.
↑ Cro. Car. 551.
↑ F. N. B. 27.
↑ Co. Litt. 112.
↑ Salk. 118.
↑ 1 Sid. 120.
↑ Stra. 647.
↑ 1 Lev. 5.
↑ 3 Mod. 186.
↑ Salk. 119. 1 Roll. Abr. 347.
↑ 1 Leon. 312. This was also the praсtice in the courts of Athens. (Pott. Antiqu. b. 1. c. 21.)
↑ Co. Litt. 133.
↑ 1 Hawk. P. C. 3.
↑ 2 Haw. P. C. 431.
↑ State trials, vol. 1. Lord Audley’s case. Stra. 633.
↑ Cod. 4. 12. 1.
↑ 2 Roll. Abr. 298.
↑ Litt. §. 669, 670.
↑ Co. Litt. 112.
↑ 1 Hawk. P. C. 2.
↑ Ibid. 130.
↑ Moor. 874.
↑ F. N. B. 80.
↑ Nov. 117. c. 14. & Van Leeuwen in loc.
↑ 1 Sid. 113. 3 Keb. 433.
↑ 2 Lev. 128.
↑ Stra. 1207.
↑ Stra. 478. 875.
Chapter the sixteenth.
Of PARENT and CHILD.
THE next, and the most universal relation in nature, is immediately derived from the preceding, being that between parent and child.
Children are of two sorts; legitimate, and spurious, or bastards: each of which we shall consider in their order; and first of legitimate children.
I. A legitimate child is he that is born in lawful wedlock, or within a competent time afterwards. “Pater est quem nuptiae demonstrant,” is the rule of the civil law[1]; and this holds with the civilians, whether the nuptials happen before, or after, the birth of the child. With us in England the rule is narrowed, for the nuptials must be precedent to the birth; of which more will be said when we come to consider the case of bastardy. At present let us enquire into, 1. The legal duties of parents to their legitimate children. 2. Their power over them. 3. The duties of such children to their parents.
- And, first, the duties of parents to legitimate children: which principally consist in three particulars; their maintenance, their protection, and their education.
The duty of parents to provide for the maintenance of their children is a principle of natural law; an obligation, says Puffendorf[2], laid on them not only by nature herself, but by their own proper act, in bringing them into the world: for they would be in the highest manner injurious to their issue, if they only gave the children life, that they might afterwards see them perish. By begetting them therefore, they have entered into a voluntary obligation, to endeavour, as far as in them lies, that the life which they have bestowed shall be supported and preserved. And thus the children will have a perfect right of receiving maintenance from their parents. And the president Montesquieu[3] has a very just observation upon this head: that the establishment of marriage in all civilized states is built on this natural obligation of the father to provide for his children; for that ascertains and makes known the person who is bound to fulfil this obligation; whereas, in promiscuous and illicit conjunctions, the father is unknown; and the mother finds a thousand obstacles in her way; — shame, remorse, the constraint of her sex, and the rigor of laws; — that stifle her inclinations to perform this duty: and besides, she generally wants ability.
The municipal laws of all well-regulated states have taken care to enforce this duty: though providence has done it more effectually than any laws, by implanting in the breast of every parent that natural ςοργη, or insuperable degree of affection, which not even the deformity of person or mind, not even the wickedness, ingratitude, and rebellion of children, can totally suppress or extinguish.
The civil law[4] obliges the parent to provide maintenance for his child; and, if he refuses, “judex de ea re cognoscet.” Nay, it carries this matter so far, that it will not suffer a parent at his death totally to disinherit his child, without expressly giving his reason for so doing; and there are fourteen such reasons reckoned up[5], which may justify such disinherison. If the parent alleged no reason, or a bad, or false one, the child might set the will aside, tanquam testamentum inofficiosum, a testament contrary to the natural duty of the parent. And it is remarkable under what colour the children were to move for relief in such a case: by suggesting that the parent had lost the use of his reason, when he made the inofficious testament. And this, as Puffendorf observes[6], was not to bring into dispute the testator’s power of disinheriting his own offspring; but to examine the motives upon which he did it: and, if they were found defective in reason, then to set them aside. But perhaps this is going rather too far: every man has, or ought to have, by the laws of society, a power over his own property: and, as Grotius very well distinguishes[7], natural right obliges to give a necessary maintenance to children; but what is more than that they have no other right to, than as it is given them by the favour of their parents, or the positive constitutions of the municipal law.
Let us next see what provision our own laws have made for this natural duty. It is a principle of law[8], that there is an obligation on every man to provide for those descended from his loins: and the manner in which this obligation shall be performed, is thus pointed out[9]. The father, and mother, grandfather, and grandmother of poor impotent persons shall maintain them at their own charges, if of sufficient ability, according as the quarter sessions shall direct: and[10] if a parent runs away, and leaves his children, the churchwardens and overseers of the parish shall seise his rents, goods, and chattels, and dispose of them towards their relief. By the interpretations which the courts of law have made upon these statutes, if a mother or grandmother marries again, and was before such second marriage of sufficient ability to keep the child, the husband shall be charged to maintain it[11]: for this being a debt of hers, when single, shall like others extend to charge the husband. But at her death, the relation being dissolved, the husband is under no farther obligation.
No person is bound to provide a maintenance for his issue, unless where the children are impotent and unable to work, either through infancy, disease, or accident; and then is only obliged to find them with necessaries, the penalty on refusal being no more than 20s. a month. For the policy of our laws, which are ever watchful to promote industry, did not mean to compel a father to maintain his idle and lazy children in ease and indolence: but thought it unjust to oblige the parent, against his will, to provide them with superfluities, and other indulgences of fortune; imagining they might trust to the impulse of nature, if the children were deserving of such favours. Yet, as nothing is so apt to stifle the calls of nature as religious bigotry, it is enacted[12], that if any popish parent shall refuse to allow his protestant child a fitting maintenance, with a view to compel him to change his religion, the lord chancellor shall by order of court constrain him to do what is just and reasonable. But this did not extend to persons of another religion, of no less bitterness and bigotry than the popish: and therefore in the very next year we find an instance of a jew of immense riches, whose only daughter having embraced christianity, he turned her out of doors; and on her application for relief, it was held she was intitled to none[13]. But this gave occasion[14] to another statute[15], which ordains, that if jewish parents refuse to allow their protestant children a fitting maintenance, suitable to the fortune of the parent, the lord chancellor on complaint may make such order therein as he shall see proper.
Our law has made no provision to prevent the disinheriting of children by will: leaving every man’s property in his own disposal, upon a principle of liberty in this, as well as every other, action: though perhaps it had not been amiss, if the parent had been bound to leave them at the least a necessary subsistence. By the custom of London indeed, (which was formerly universal throughout the kingdom) the children of freemen are entitled to one third of their father’s effects, to be equally divided among them; of which he cannot deprive them. And, among persons of any rank or fortune, a competence is generally provided for younger children, and the bulk of the estate settled upon the eldest, by the marriage-articles. Heirs also, and children, are favourites of our courts of justice, and cannot be disinherited by any dubious or ambiguous words; there being required the utmost certainty of the testator’s intentions to take away the right of an heir[16].
From the duty of maintenance we may easily pass to that of protection; which is also a natural duty, but rather permitted than enjoined by any municipal laws: nature, in this respect, working so strongly as to need rather a check than a spur. A parent may, by our laws, maintain and uphold his children in their law-suits, without being guilty of the legal crime of maintaining quarrels[17]. A parent may also justify an assault and battery in defence of the persons of his children[18]: nay, where a man’s son was beaten by another boy, and the father went near a mile to find him, and there revenged his son’s quarrel by beating the other boy, of which beating he afterwards unfortunately died; it was not held to be murder, but manslaughter merely[19]. Such indulgence does the law shew to the frailty of human nature, and the workings of parental affection.
The last duty of parents to their children is that of giving them an education suitable to their station in life: a duty pointed out by reason, and of far the greatest importance of any. For, as Puffendorf very well observes[20], it is not easy to imagine or allow, that a parent has conferred any considerable benefit upon his child, by bringing him into the world; if he afterwards entirely neglects his culture and education, and suffers him to grow up like a mere beast, to lead a life useless to others, and shameful to himself. Yet the municipal laws of most countries seem to be defective in this point, by not constraining the parent to bestow a proper education upon his children. Perhaps they thought it punishment enough to leave the parent, who neglects the instruction of his family, to labour under those griefs and inconveniences, which his family, so uninstructed, will be sure to bring upon him. Our laws, though their defects in this particular cannot be denied, have in one instance made a wise provision for breeding up the rising generation: since the poor and laborious part of the community, when past the age of nurture, are taken out of the hands of their parents, by the statutes for apprenticing poor children[21]; and are placed out by the public in such a manner, as may render their abilities, in their several stations, of the greatest advantage to the commonwealth. The rich indeed are left at their own option, whether they will breed up their children to be ornaments or disgraces to their family. Yet in one case, that of religion, they are under peculiar restrictions: for[22] it is provided, that if any person sends any child under his government beyond the seas, either to prevent it’s good education in England, or in order to enter into or reside in any popish college, or to be instructed, persuaded, or strengthened in the popish religion; in such case, besides the disabilities incurred by the child so sent, the parent or person sending shall forfeit 100𝑙. which[23] shall go to the sole use and benefit of him that shall discover the offence. And[24] if any parent, or other, shall send or convey any person beyond sea, to enter into, or be resident in, or trained up in, any priory, abbey, nunnery, popish university, college, or school, or house of jesuits, or priests, or in any private popish family, in order to be instructed, persuaded, or confirmed in the popish religion; or shall contribute any thing towards their maintenance when abroad by any pretext whatever, the person both sending and sent shall be disabled to sue in law or equity, or to be executor or administrator to any person, or to enjoy any legacy or deed of gift, or to bear any office in the realm, and shall forfeit all his goods and chattels, and likewise all his real estate for life.
- The power of parents over their children is derived from the former consideration, their duty; this authority being given them, partly to enable the parent more effectually to perform his duty, and partly as a recompense for his care and trouble in the faithful discharge of it. And upon this score the municipal laws of some nations have given a much larger authority to the parents, than others. The antient Roman laws gave the father a power of life and death over his children; upon this principle, that he who gave had also the power of taking away[25]. But the rigor of these laws was softened by subsequent constitutions; so that[26] we find a father banished by the emperor Hadrian for killing his son, though he had committed a very heinous crime, upon this maxim, that “patria potestas in pietate debet, non in atrocitate, consistere.” But still they maintained to the last a very large and absolute authority: for a son could not acquire any property of his own during the life of his father; but all his acquisitions belonged to the father, or at least the profits of them for his life[27].
The power of a parent by our English laws is much more moderate; but still sufficient to keep the child in order and obedience. He may lawfully correct his child, being under age, in a reasonable manner[28]; for this is for the benefit of his education. The consent or concurrence of the parent to the marriage of his child under age, was also directed by our antient law to be obtained: but now it is absolutely necessary; for without it the contract is void[29]. And this also is another means, which the law has put into the parent’s hands, in order the better to discharge his duty; first, of protecting his children from the snares of artful and designing persons; and, next, of settling them properly in life, by preventing the ill consequences of too early and precipitate marriages. A father has no other power over his sons estate, than as his trustee or guardian; for, though he may receive the profits during the child’s minority, yet he must account for them when he comes of age. He may indeed have the benefit of his children’s labour while they live with him, and are maintained by him: but this is no more than he is entitled to from his apprentices or servants. The legal power of a father (for a mother, as such, is entitled to no power, but only to reverence and respect) the power of a father, I say, over the persons of his children ceases at the age of twenty one: for they are then enfranchised by arriving at years of discretion, or that point which the law has established (as some must necessarily be established) when the empire of the father, or other guardian, gives place to the empire of reason. Yet, till that age arrives, this empire of the father continues even after his death; for he may by his will appoint a guardian to his children. He may also delegate part of his parental authority, during his life, to the tutor or schoolmaster of his child; who is then in loco parentis, and has such a portion of the power of the parent committed to his charge, viz. that of restraint and correction, as may be necessary to answer the purposes for which he is employed.
- The duties of children to their parents arises from a principle of natural justice and retribution. For to those, who gave us existence, we naturally owe subjection and obedience during our minority, and honour and reverence ever after; they, who protected the weakness of our infancy, are entitled to our protection in the infirmity of their age; they, who by sustenance and education have enabled their offspring to prosper, ought in return to be supported by that offspring, in case they stand in need of assistance. Upon this principle proceed all the duties of children to their parents, which are enjoined by positive laws. And the Athenian laws[30] carried this principle into practice with a scrupulous kind of nicety: obliging all children to provide for their father, when fallen into poverty; with an exception to spurious children, to those whose chastity had been prostituted by consent of the father, and to those whom he had not put in any way of gaining a livelihood. The legislature, says baron Montesquieu[31], considered, that in the first case the father, being uncertain, had rendered the natural obligation precarious; that, in the second case, he had sullied the life he had given, and done his children the greatest of injuries, in depriving them of their reputation; and that, in the third case, he had rendered their life (so far as in him lay) an insupportable burthen, by furnishing them with no means of subsistence.
Our laws agree with those of Athens with regard to the first only of these particulars, the case of spurious issue. In the other cases the law does not hold the tie of nature to be dissolved by any misbehaviour of the parent; and therefore a child is equally justifiable in defending the person, or maintaining the cause or suit, of a bad parent, as a good one; and is equally compellable[32], if of sufficient ability, to maintain and provide for a wicked and unnatural progenitor, as for one who has shewn the greatest tenderness and parental piety.
II. We are next to consider the case of illegitimate children, or bastards; with regard to whom let us inquire, 1. Who are bastards. 2. The legal duties of the parents towards a bastard child. 3. The rights and incapacities attending such bastard children.
- Who are bastards. A bastard, by our English laws, is one that is not only begotten, but born, out of lawful matrimony. The civil and canon laws do not allow a child to remain a bastard, if the parents afterwards intermarry[33]: and herein they differ most materially from our law; which, though not so strict as to require that the child shall be begotten, yet makes it an indispensable condition that it shall be born, after lawful wedlock. And the reason of our English law is surely much superior to that of the Roman, if we consider the principal end and design of establishing the contract of marriage, taken in a civil light; abstractedly from any religious view, which has nothing to do with the legitimacy or illegitimacy of the children. The main end and design of marriage therefore being to ascertain and fix upon some certain person, to whom the care, the protection, the maintenance, and the education of the children should belong; this end is undoubtedly better answered by legitimating all issue born after wedlock, than by legitimating all issue of the same parties, even born before wedlock, so as wedlock afterwards ensues: 1. Because of the very great uncertainty there will generally be, in the proof that the issue was really begotten by the same man; whereas, by confining the proof to the birth, and not to the begetting, our law has rendered it perfectly certain, what child is legitimate, and who is to take care of the child. 2. Because by the Roman law a child may be continued a bastard, or made legitimate, at the option of the father and mother, by a marriage ex post facto; thereby opening a door to many frauds and partialities, which by our law are prevented. 3. Because by those laws a man may remain a bastard till forty years of age, and then become legitimate, by the subsequent marriage of his parents; whereby the main end of marriage, the protection of infants, is totally frustrated. 4. Because this rule of the Roman law admits of no limitations as to the time, or number, of bastards so to be legitimated; but a dozen of them may, twenty years after their birth, by the subsequent marriage of their parents, be admitted to all the privileges of legitimate children. This is plainly a great discouragement to the matrimonial state; to which one main inducement is usually not only the desire of having children, but also the desire of procreating lawful heirs. Whereas our constitutions guard against this indecency, and at the same time give sufficient allowance to the frailties of human nature. For, if a child be begotten while the parents are single, and they will endeavour to make an early reparation for the offence, by marrying within a few months after, our law is so indulgent as not to bastardize the child, if it be born, though not begotten, in lawful wedlock: for this is an incident that can happen but once; since all future children will be begotten, as well as born, within the rules of honour and civil society. Upon reasons like these we may suppose the peers to have acted at the parliament of Merton, when they refused to enact that children born before marriage should be esteemed legitimate[34].
From what has been said it appears, that all children born before matrimony are bastards by our law: and so it is of all children born so long after the death of the husband, that, by the usual course of gestation, they could not be begotten by him. But, this being a matter of some uncertainty, the law is not exact as to a few days[35]. And this gives occasion to a proceeding at common law, where a widow is suspected to feign herself with child, in order to produce a supposititious heir to the estate: an attempt which the rigor of the Gothic constitutions esteemed equivalent to the most atrocious theft, and therefore punished with death[36]. In this case with us the heir presumptive may have a writ de ventre inspiciendo, to examine whether she be with child, or not[37]; and, if she be, to keep her under proper restraint, till delivered; which is entirely conformable to the practice of the civil law[38]: but, if the widow be upon due examination found not pregnant, the presumptive heir shall be admitted to the inheritance, though liable to lose it again, on the birth of a child within forty weeks from the death of the husband[39]. But if a man dies, and his widow soon after marries again, and a child is born within such a time, as that by the course of nature it might have been the child of either husband; in this case he is said to be more than ordinarily legitimate; for he may, when he arrives to years of discretion, choose which of the fathers he pleases[40]. To prevent this, among other inconveniences, the civil law ordained that no widow should marry infra annum luctus[41]; a rule which obtained so early as the reign of Augustus[42], if not of Romulus: and the same constitution was probably handed down to our early ancestors from the Romans, during their stay in this island; for we find it established under the Saxon and Danish governments[43].
As bastards may be born before the coverture or marriage state is begun, or after it is determined, so also children born during wedlock may in some circumstances be bastards. As if the husband be out of the kingdom of England (or, as the law somewhat loosely phrases it, extra quatuor maria) for above nine months, so that no access to his wife can be presumed, her issue during that period shall be bastard[44]. But, generally, during the coverture access of the husband shall be presumed, unless the contrary can be shewn[45]; which is such a negative as can only be proved by shewing him to be elsewhere: for the general rule is, praesumitur pro legitimatione[46]. In a divorce a mensa et thoro, if the wife breeds children they are bastards; for the law will presume the husband and wife conformable to the sentence of separation, unless access be proved: but, in a voluntary separation by agreement, the law will suppose access, unless the negative be shewn[47]. So also if there is an apparent impossibility of procreation on the part of the husband, as if he be only eight years old, or the like, there the issue of the wife shall be bastard[48]. Likewise, in case of divorce in the spiritual court a vinculo matrimonii, all the issue born during the coverture are bastards[49]; because such divorce is always upon some cause, that rendered the marriage unlawful and null from the beginning.
- Let us next see the duty of parents to their bastard children, by our law; which is principally that of maintenance. For, though bastards are not looked upon as children to any civil purposes, yet the ties of nature, of which maintenance is one, are not so easily dissolved: and they hold indeed as to many other intentions; as, particularly, that a man shall not marry his bastard sister or daughter[50]. The civil law therefore, when it denied maintenance to bastards begotten under certain atrocious circumstances[51], was neither consonant to nature, nor reason; however profligate and wicked the parents might justly be esteemed.
The method in which the English law provides maintenance for them is as follows[52]. When a woman is delivered, or declares herself with child, of a bastard, and will by oath before a justice of peace charge any person having got her with child, the justice shall cause such person to be apprehended, and commit him till he gives security, either to maintain the child, or appear at the next quarter sessions to dispute and try the fact. But if the woman dies, or is married before delivery, or miscarries, or proves not to have been with child, the person shall be discharged: otherwise the sessions, or two justices out of sessions, upon original application to them, may take order for the keeping of the bastard, by charging the mother or the reputed father with the payment of money or other sustentation for that purpose. And if such putative father, or lewd mother, run away from the parish, the overseers by direction of two justices may seize their rents, goods, and chattels, in order to bring up the said bastard child. Yet such is the humanity of our laws, that no woman can be compulsively questioned concerning the father of her child, till one month after her delivery: which indulgence is however very frequently a hardship upon parishes, by suffering the parents to escape.
- I proceed next to the rights and incapacities which appertain to a bastard. The rights are very few, being only such as he can acquire; for he can inherit nothing, being looked upon as the son of nobody, and sometimes called filius nullius, sometimes filius populi[53]. Yet he may gain a sirname by reputation[54], though he has none by inheritance. All other children have their primary settlement in their father’s parish; but a bastard in the parish where born, for he hath no father[55]. However, in case of fraud, as if a woman be sent either by order of justices, or comes to beg as a vagrant, to a parish which she does not belong to, and drops her bastard there; the bastard shall, in the first case, be settled in the parish from whence she was illegally removed[56]; or, in the latter case, in the mother’s own parish, if the mother be apprehended for her vagrancy[57]. The incapacity of a bastard consists principally in this, that he cannot be heir to any one, neither can he have heirs, but of his own body; for, being nullius filius, he is therefore of kin to nobody, and has no ancestor from whom any inheritable blood can be derived. A bastard was also, in strictness, incapable of holy orders; and, though that were dispensed with, yet he was utterly disqualified from holding any dignity in the church[58]: but this doctrine seems now obsolete; and in all other respects, there is no distinction between a bastard and another man. And really any other distinction, but that of not inheriting, which civil policy renders necessary, would, with regard to the innocent offspring of his parents’ crimes, be odious, unjust, and cruel to the last degree: and yet the civil law, so boasted of for it’s equitable decisions, made bastards in some cases incapable even of a gift from their parents[59]. A bastard may, lastly, be made legitimate, and capable of inheriting, by the transcendent power of an act of parliament, and not otherwise[60]: as was done in the case of John of Gant’s bastard children, by a statute of Richard the second.
↑ Ff. 2. 4. 5.
↑ L. of N. l. 4. c. 11.
↑ Sp. L. b. 23. c. 2.
↑ Ff. 25. 3. 5.
↑ Nov. 115.
↑ l. 4. c. 11. §. 7.
↑ de j. b. & p. l. 2. c. 7. n. 3.
↑ Raym. 500.
↑ Stat. 43 Eliz. c. 2.
↑ Stat. 5 Geo. I. c. 8.
↑ Styles. 783. 2 Bulstr. 346.
↑ Stat. 11 & 12 W. III. c. 4.
↑ Lord Raym. 699.
↑ Com. Journ. 18 Feb. 12 Mar. 1701.
↑ 1 Ann. st. 1. c. 30.
↑ 1 Lev. 130.
↑ 2 Inst. 564.
↑ 1 Hawk. P. C. 131.
↑ Cro. Jac. 296. 1 Hawk. P. C. 83.
↑ L. of N. b. 6. c. 2. §. 12.
↑ See pag. 426.
↑ Stat. 1 Jac. I. c. 4. & 3 Jac. I. c. 5.
↑ Stat. 11 & 12 W. III. c. 4.
↑ Stat. 3 Car. I. c. 2.
↑ Ff. 28. 2. 11. Cod. 8. 47. 10.
↑ Ff. 48. 9. 5.
↑ Inst. 2. 9. 1.
↑ 1 Hawk. P. C. 130.
↑ Stat. 26 Geo. II. c. 33.
↑ Potter’s Antiqu. b. 4. c. 15.
↑ Sp. L. b. 26. c. 5.
↑ Stat. 43 Eliz. c. 2.
↑ Inst. 1. 10. 13. Decretal. l. 4. t. 17. c. 1.
↑ Rogaverunt omnes episcopi magnates, ut consentirent quod nati ante matrimonium essent legitimi, sicut illi qui nati sunt post matrimonium, quia ecclesia tales habet pro legitimis. Et omnes comites et barones una voce responderunt, quod nolunt leges Angliae mutare, quae hucusque usitatae sunt et approbatae. Stat. 20 Hen. III. c. 9. See the introduction to the great charter, edit. Oxon. 1759. sub anno 1253.
↑ Cro. Jac. 541.
↑ Stiernhook de jure Gothor. l. 3. c. 5.
↑ Co. Litt. 8. Bract. l. 2. c. 32.
↑ Ff. 25. tit. 4. per tot.
↑ Britton. c. 66. pag. 166.
↑ Co. Litt. 8.
↑ Cod. 5. 9. 2.
↑ But the year was then only ten months. Ovid. Fast. I. 27.
↑ Sit omnis vidua sine marito duodecim menses. LL. Ethelr. A. D. 1008. LL. Canut. c. 71.
↑ Co. Litt. 244.
↑ Salk. 123. 3 P. W. 276. Stra. 925.
↑ 5 Rep. 98.
↑ Salk. 123.
↑ Co. Litt. 244.
↑ Ibid. 235.
↑ Lord Raym. 68. Comb. 356.
↑ Nov. 89. c. 15.
↑ Stat. 18 Eliz. c. 3. 7 Jac. I. c. 4. 3 Car. I. c. 4. 13 & 14 Car. II. c. 12. 6 Geo. II. c. 31.
↑ Fort. de LL. c. 40.
↑ Co. Litt. 3.
↑ Salk. 427.
↑ Ibid. 121.
↑ Stat. 17 Geo. II. c. 5.
↑ Fortesc. c. 40. 5 Rep. 58.
↑ Cod. 6. 57. 5.
↑ 4 Inst. 36.
Chapter the seventeenth.
Of GUARDIAN and WARD.
THE only general private relation, now remaining to be discussed, is that of guardian and ward; which bears a very near resemblance to the last, and is plainly derived out of it: the guardian being only a temporary parent; that is, for so long time as the ward is an infant, or under age. In examining this species of relationship, I shall first consider the different kinds of guardians, how they are appointed, and their power and duty: next, the different ages of persons, as defined by the law: and, lastly, the privileges and disabilities of an infant, or one under age and subject to guardianship.
- The guardian with us performs the office both of the tutor and curator of the Roman laws; the former of which had the charge of the maintenance and education of the minor, the latter the care of his fortune; or, according to the language of the court of chancery, the tutor was the committee of the person, the curator the committee of the estate. But this office was frequently united in the civil law[1]; as it is always in our law with regard to minors, though as to lunatics and idiots it is commonly kept distinct.
Of the several species of guardians, the first are guardians by nature: viz. the father and (in some cases) the mother of the child. For, if an estate be left to an infant, the father is by common law the guardian, and must account to his child for the profits[2]. And, with regard to daughters, it seems by construction of the statute 4 & 5 Ph. & Mar. c. 8. that the father might by deed or will affign a guardian to any woman-child under the age of sixteen; and, if none be so assigned, the mother shall in this case be guardian[3]. There are also guardians for nurture[4]; which are, of course, the father or mother, till the infant attains the age of fourteen years[5]: and, in default of father or mother, the ordinary usually assigns some discreet person to take care of the infant’s personal estate, and to provide for his maintenance and education[6]. Next are guardians in socage, (an appellation which will be fully explained in the second book of these commentaries) who are also called guardians by the common law. These take place only when the minor is entitled to some estate in lands, and then by the common law the guardianship devolves upon his next of kin, to whom the inheritance cannot possibly descend; as, where the estate descended from his father, in this case his uncle by the mother’s side cannot possibly inherit this estate, and therefore shall be the guardian[7]. For the law judges it improper to trust the person of an infant in his hands, who may by possibility become heir to him; that there may be no temptation, nor even suspicion of temptation, for him to abuse his trust[8]. The Roman laws proceed on a quite contrary principle, committing the care of the minor to him who is the next to succeed to the inheritance, presuming that the next heir would take the best care of an estate, to which he has a prospect of succeeding: and this they boast to be “summa providentia[9].” But in the mean time they seem to have forgotten, how much it is the guardian’s interest to remove the incumbrance of his pupil’s life from that estate, for which he is supposed to have so great a regard[10]. And this affords Fortescue[11], and sir Edward Coke[12], an ample opportunity for triumph; they affirming, that to commit the custody of an infant to him that is next in succession, is “quasi agnum committere lupo, ad devorandum[13].” These guardians in socage, like those for nurture, continue only till the minor is fourteen years of age; for then, in both cases, he is presumed to have discretion, so far as to choose his own guardian. This he may do, unless one be appointed by the father, by virtue of the statute 12 Car. II. c. 24. which, considering the imbecillity of judgment in children of the age of fourteen, and the abolition of guardianship in chivalry (which lasted till the age of twenty one, and of which we shall speak hereafter) enacts, that any father, under age or of full age, may by deed or will dispose of the custody of his child, either born or unborn, to any person, except a popish recusant, either in possession or reversion, till such child attains the age of one and twenty years. These are called guardians by statute, or testamentary guardians. There are also special guardians by custom of London, and other places[14]; but they are particular exceptions, and do not fall under the general law.
The power and reciprocal duty of a guardian and ward are the same, pro tempore, as that of a father and child; and therefore I shall not repeat them: but shall only add, that the guardian, when the ward comes of age, is bound to give him an account of all that he has transacted on his behalf, and must answer for all losses by his wilful default or negligence. In order therefore to prevent disagreeable contests with young gentlemen, it has become a practice for many guardians, of large estates especially, to indemnify themselves by applying to the court of chancery, acting under it’s direction, and accounting annually before the officers of that court. For the lord chancellor is, by right derived from the crown, the general and supreme guardian of all infants, as well as idiots and lunatics; that is, of all such persons as have not discretion enough to manage their own concerns. In case therefore any guardian abuses his trust, the court will check and punish him; nay sometimes proceed to the removal of him, and appoint another in his stead[15].
-
Let us next consider the ward, or person within age, for whose assistance and support these guardians are constituted by law; or who it is, that is said to be within age. The ages of male and female are different for different purposes. A male at twelve years old may take the oath of allegiance; at fourteen is at years of discretion, and therefore may consent or disagree to marriage, may choose his guardian, and, if his discretion be actually proved, may make his testament of his personal estate; at seventeen may be an executor; and at twenty one is at his own disposal, and may aliene his lands, goods, and chattels. A female also at seven years of age may be betrothed or given in marriage; at nine is entitled to dower; at twelve is at years of maturity, and therefore may consent or disagree to marriage, and, if proved to have sufficient discretion, may bequeath her personal estate; at fourteen is at years of legal discretion, and may choose a guardian; at seventeen may be executrix; and at twenty one may dispose of herself and her lands. So that full age in male or female is twenty one years, which age is completed on the day preceding the anniversary of a person’s birth[16]; who till that time is an infant, and so stiled in law. Among the antient Greeks and Romans women were never of age, but subject to perpetual guardianship[17], unless when married, “nisi convenissent in manum viri:” and, when that perpetual tutelage wore away in process of time, we find that, in females as well as males, full age was not till twenty five years[18]. Thus, by the constitutions of different kingdoms, this period, which is merely arbitrary, and juris positivi, is fixed at different times. Scotland agrees with England in this point; (both probably copying from the old Saxon constitutions on the continent, which extended the age of minority “ad annum vigesimum primum, et eo usque juvenes sub tutelam reponunt[19]”) but in Naples they are of full age at eighteen; in France, with regard to marriage, not till thirty; and in Holland at twenty five.
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Infants have various privileges, and various disabilities: but their very disabilities are privileges; in order to secure them from hurting themselves by their own improvident acts. An infant cannot be sued but under the protection, and joining the name, of his guardian; for he is to defend him against all attacks as well by law as otherwise[20]: but he may sue either by his guardian, or prochein amy, his next friend who is not his guardian. This prochein amy may be any person who will undertake the infant’s cause; and it frequently happens, that an infant, by his prochein amy, institutes a suit in equity against a fraudulent guardian. In criminal cases, an infant of the age of fourteen years may be capitally punished for any capital offence[21]: but under the age of seven he cannot. The period between seven and fourteen is subject to much uncertainty: for the infant shall, generally speaking, be judged prima facie innocent; yet if he was doli capax, and could discern between good and evil at the time of the offence committed, he may be convicted and undergo judgment and execution of death, though he hath not attained to years of puberty or discretion[22]. And sir Matthew Hale gives us two instances, one of a girl of thirteen, who was burned for killing her mistress; another of a boy still younger, that had killed his companion, and hid himself, who was hanged; for it appeared by his hiding that he knew he had done wrong, and could discern between good and evil: and in such cases the maxim of law is, that malitia supplet aetatem. So also, in much more modern times, a boy of ten years old, who was guilty of a heinous murder, was held a proper subject for capital punishment, by the opinion of all the judges[23].
With regard to estates and civil property, an infant hath many privileges, which will be better understood when we come to treat more particularly of those matters: but this may be said in general, that an infant shall lose nothing by non-claim, or neglect of demanding his right; nor shall any other laches or negligence be imputed to an infant, except in some very particular cases.
It is generally true, that an infant can neither aliene his lands, nor do any legal act, nor make a deed, nor indeed any manner of contract, that will bind him. But still to all these rules there are some exceptions; part of which were just now mentioned in reckoning up the different capacities which they assume at different ages: and there are others, a few of which it may not be improper to recite, as a general specimen of the whole. And, first, it is true, that infants cannot aliene their estates: but infant trustees, or mortgagees, are enabled to convey, under the direction of the court of chancery or exchequer, the estates they hold in trust or mortgage, to such person as the court shall appoint[24]. Also it is generally true, that an infant can do no legal act: yet an infant, who has an advowson, may present to the benefice when it becomes void[25]. For the law in this case dispenses with one rule, in order to maintain others of far greater consequence: it permits an infant to present a clerk (who, if unfit, may be rejected by the bishop) rather than either suffer the church to be unserved till he comes of age, or permit the infant to be debarred of his right by lapse to the bishop. An infant may also purchase lands, but his purchase is incomplete: for, when he conies to age, he may either agree or disagree to it, as he thinks prudent or proper, without alleging any reason; and so may his heirs after him, if he dies without having completed his agreement[26]. It is, farther, generally true, that an infant, under twenty one, can make no deed but what is afterwards voidable: yet in some cases[27] he may bind himself apprentice by deed indented, or indentures, for seven years; and[28] he may by deed or will appoint a guardian to his children, if he has any. Lastly, it is generally true, that an infant can make no other contract that will bind him: yet he may bind himself to pay for his necessary meat, drink, apparel, physic, and such other necessaries; and likewise for his good teaching and instruction, whereby he may profit himself afterwards[29]. And thus much, at present, for the privileges and disabilities of infants.
↑ Ff. 26. 4. 1.
↑ Co. Litt. 88.
↑ 3 Rep. 39.
↑ Co. Litt. 88.
↑ Moor. 738. 3 Rep. 38.
↑ 2 Jones 90. 2 Lev. 163.
↑ Litt. §. 123.
↑ Nunquam custodia alicujus de jure alicui remanet, de quo habeatur suspicio, quod possit vel velit aliquod jus in ipsa haeriditate clamare. Glanv. l. 7. c. 11.
↑ Ff. 26. 4. 11.
↑ The Roman satyrist was fully aware of this danger, when he put this private prayer into the mouth of a selfish guardian;
—pupillum o utinam, quem proximus haeres Impello, expungam. Pers. 1. 12.
↑ c. 44.
↑ 1 Inst. 88.
↑ This policy of our English law is warranted by the wise institutions of Solon, who provided that no one should be another’s guardian, who was to enjoy the estate after his death. (Potter’s Antiqu. b. 1. c. 26.) And Charondas, another of the Grecian legislators, directed that the inheritance should go to the father’s relations, but the education of the child to the mother’s; that the guardianship and right of succession might always be kept distinct. (Petit. Leg. Att. l. 6. t. 7.)
↑ Co. Litt. 88.
↑ 1 Sid. 424. 1 P. Will. 703.
↑ Salk. 44. 625.
↑ Pott. Aniqu. b. 4. c. 11. Cic. pro Muren. 12.
↑ Inst. 1. 23. 1.
↑ Stiernhook de jure Sueonum. l. 2. c. 2. This is also the period when the king, as well as the subject, arrives at full age in modern Sweden. Mod. Un. Hist. xxxiii. 220.
↑ Co. Litt. 135.
↑ 1 Hal. P. C. 25.
↑ 1 Hal. P. C. 26.
↑ Foster. 72.
↑ Stat. 7 Ann. c. 19.
↑ Co. Litt. 172.
↑ Co. Litt. 2.
↑ Stat. 5 Eliz. c. 4. 43 Eliz. c. 2. Cro. Car. 179.
↑ Stat. 12 Car. II. c. 24.
↑ Co. Litt. 172.
Chapter the eighteenth.
Of CORPORATIONS.
WE have hitherto considered persons in their natural capacities, and have treated of their rights and duties. But, as all personal rights die with the person; and, as the necessary forms of inverting a series of individuals, one after another, with the same identical rights, would be very inconvenient, if not impracticable; it has been found necessary, when it is for the advantage of the public to have any particular rights kept on foot and continued, to constitute artificial persons, who may maintain a perpetual succession, and enjoy a kind of legal immortality.
These artificial persons are called bodies politic, bodies coporate, (corpora corporata) or corporations: of which there is a great variety subsisting, for the advancement of religion, of learning, and of commerce; in order to preserve entire and for ever those rights and immunities, which, if they were granted only to those individuals of which the body corporate is composed, would upon their death be utterly lost and extinct. To shew the advantages of these incorporations, let us consider the case of a college in either of our universities, founded ad studendum et orandum, for the encouragement and support of religion and learning. If this was a mere voluntary assembly, the individuals which compose it might indeed read, pray, study, and perform scholastic exercises together, so long as they could agree to do so: but they could neither frame, nor receive, any laws or rules of their conduct; none at least, which would have any binding force, for want of a coercive power to create a sufficient obligation. Neither could they be capable of retaining any privileges or immunities: for, if such privileges be attacked, which of all this unconnected assembly has the right, or ability, to defend them? And, when they are dispersed by death or otherwise, how shall they transfer these advantages to another set of students, equally unconnected as themselves? So also, with regard to holding estates or other property, if land be granted for the purposes of religion or learning to twenty individuals not incorporated, there is no legal way of continuing the property to any other persons for the same purposes, but by endless conveyances from one to the other, as often as the hands are changed. But, when they are consolidated and united into a corporation, they and their successors are then considered as one person in law: as one person, they have one will, which is collected from the sense of the majority of the individuals: this one will may establish rules and orders for the regulation of the whole, which are a sort of municipal laws of this little republic; or rules and statutes may be prescribed to it at it’s creation, which are then in the place of natural laws: the privileges and immunities, the estates and possessions, of the corporation, when once vested in them, will be for ever vested, without any new conveyance to new successions; for all the individual members that have existed from the foundation to the present time, or that shall ever hereafter exist, are but one person in law, a person that never dies: in like manner as the river Thames is still the same river, though the parts which compose it are changing every instant.
The honour of originally inventing these political constitutions entirely belongs to the Romans. They were introduced, as Plutarch says, by Numa; who finding, upon his accession, the city torn to pieces by the two rival factions of Sabines and Romans, thought it a prudent and politic measure, to subdivide these two into many smaller ones, by instituting separate societies of every manual trade and profession. They were afterwards much considered by the civil law[1], in which they were called universitates, as forming one whole out of many individuals; or collegia, from being gathered together: they were adopted also by the canon law, for the maintenance of ecclesiastical discipline; and from them our spiritual corporations are derived. But our laws have considerably refined and improved upon the invention, according to the usual genius of the English nation: particularly with regard to sole corporations, consisting of one person only, of which the Roman lawyers had no notion; their maxim being that “tres faciunt collegium[2].” Though they held, that if a corporation, originally consisting of three persons, be reduced to one, “si universitas ad unum redit,” it may still subsist as a corporation, “et stet nomen universitatis[3].”
Before we proceed to treat of the several incidents of corporations, as regarded by the laws of England, let us first take a view of the several sorts of them; and then we shall be better enabled to apprehend their respective qualities.
The first division of corporations is into aggregate and sole. Corporations aggregate consist of many persons united together into one society, and are kept up by a perpetual succession of members, so as to continue for ever: of which kind are the mayor and commonalty of a city, the head and fellows of a college, the dean and chapter of a cathedral church. Corporations sole consist of one person only and his successors, in some particular station, who are incorporated by law, in order to give them some legal capacities and advantages, particularly that of perpetuity, which in their natural persons they could not have had. In this sense the king is a sole corporation[4]: so is a bishop: so are some deans, and prebendaries, distinct from their several chapters: and so is every parson and vicar. And the necessity, or at least use, of this institution will be very apparent, if we consider the case of a parson of a church. At the original endowment of parish churches, the freehold of the church, the church-yard, the parsonage house, the glebe, and the tithes of the parish, where vested in the then parson by the bounty of the donor, as a temporal recompense to him for his spiritual care of the inhabitants, and with intent that the same emoluments should ever afterwards continue as a recompense for the same care. But how was this to be effected? The freehold was vested in the parson; and, if we suppose it vested in his natural capacity, on his death it might descend to his heir, and would be liable to his debts and incumbrances: or, at best, the heir might be compellable, at some trouble and expense, to convey these rights to the succeeding incumbent. The law therefore has wisely ordained, that the parson, quatenus parson, shall never die, any more than the king; by making him and his successors a corporation. By which means all the original rights of the parsonage are preserved entire to the successor: for the present incumbent, and his predecessor who lived seven centuries ago, are in law one and the same person; and what was given to the one was given to the other also.
Another division of corporations, either sole or aggregate, is into ecclesiastical and lay. Ecclesiastical corporations are where the members that compose it are entirely spiritual persons; such as bishops; certain deans, and prebendaries; all archdeacons, parsons, and vicars; which are sole corporations: deans and chapters at present, and formerly prior and convent, abbot and monks, and the like, bodies aggregate. These are erected for the furtherance of religion, and perpetuating the rights of the church. Lay corporations are of two sorts, civil and eleemosynary. The civil are such as are erected for a variety of temporal purposes. The king, for instance, is made a corporation to prevent in general the possibility of an interregnum or vacancy of the throne, and to preserve the possessions of the crown entire; for, immediately upon the demise of one king, his successor is, as we have formerly seen, in full possession of the regal rights and dignity. Other lay corporations are erected for the good government of a town or particular district, as a mayor and commonalty, bailiff and burgesses, or the like: some for the advancement and regulation of manufactures and commerce; as the trading companies of London, and other towns: and some for the better carrying on of divers special purposes; as churchwardens, for conservation of the goods of the parish; the college of physicians and company of surgeons in London, for the improvement of the medical science; the royal society, for the advancement of natural knowlege; and the society of antiquarians, for promoting the study of antiquities. And among these I am inclined to think the general corporate bodies of the universities of Oxford and Cambridge must be ranked: for it is clear they are not spiritual or ecclesiastical corporations, being composed of more laymen than clergy: neither are they eleemosynary foundations, though stipends are annexed to particular magistrates and professors, any more than other corporations where the acting officers have standing salaries; for these are rewards pro opera et labore, not charitable donations only, since every stipend is preceded by service and duty: they seem therefore to be merely civil corporations. The eleemosynary sort are such as are constituted for the perpetual distribution of the free alms, or bounty, of the founder of them to such persons as he has directed. Of this kind are all hospitals for the maintenance of the poor, sick, and impotent; and all colleges, both in our universities and out[5] of them: which colleges are founded for two purposes; 1. For the promotion of piety and learning by proper regulations and ordinances. 2. For imparting assistance to the members of those bodies, in order to enable them to prosecute their devotion and studies with greater ease and assiduity. And all these eleemosynary corporations are, strictly speaking, lay and not ecclesiastical, even though composed of ecclesiastical persons[6], and although they in some things partake of the nature, privileges, and restrictions of ecclesiastical bodies.
Having thus marshalled the several species of corporations, let us next proceed to consider, 1. How corporations, in general, may be created. 2. What are their powers, capacities, and incapacities. 3. How corporations are visited. And 4. How they may be dissolved.
I. Corporations, by the civil law, seem to have been created by the mere act, and voluntary association of their members; provided such convention was not contrary to law, for then it was illicitum collegium[7]. It does not appear that the prince’s consent was necessary to be actually given to the foundation of them; but merely that the original founders of these voluntary and friendly societies (for they were little more than such) should not establish any meetings in opposition to the laws of the state.
But, with us in England, the king’s consent is absolutely necessary to the erection of any corporation, either impliedly or expressly given. The king’s implied consent is to be found in corporations which exist by force of the common law, to which our former kings are supposed to have given their concurrence; common law being nothing else but custom, arising from the universal agreement of the whole community. Of this sort are the king himself, all bishops, parsons, vicars, churchwardens, and some others; who by common law have ever been held (as far as our books can shew us) to have been corporations, virtute officii: and this incorporation is so infeparably annexed to their offices, that we cannot frame a complete legal idea of any of these persons, but we must also have an idea of a corporation, capable to transmit his rights to his successors, at the same time. Another method of implication, whereby the king’s consent is presumed, is as to all corporations by prescription, such as the city of London, and many others[8], which have existed as corporations, time whereof the memory of man runneth not to the contrary; and therefore are looked upon in law to be well created. For though the members thereof can shew no legal charter of incorporation, yet in cases of such high antiquity the law presumes there once was one; and that by the variety of accidents, which a length of time may produce, the charter is lost or destroyed. The methods, by which the king’s consent is expressly given, are either by act of parliament or charter. By act of parliament, of which the royal assent is a necessary ingredient, corporations may undoubtedly be created[9]: but it is observable, that most of those statutes, which are usually cited as having created corporations, do either confirm such as have been before created by the king; as in the case of the college of physicians, erected by charter 10 Hen. VIII[10], which charter was afterwards confirmed in parliament[11]; or, they permit the king to erect a corporation in futuro with such and such powers; as is the case of the bank of England[12], and the society of the British fishery[13]. So that the immediate creative act is usually performed by the king alone, in virtue of his royal prerogative[14].
All the other methods therefore whereby corporations exist, by common law, by prescription, and by act of parliament, are for the most part reducible to this of the king’s letters patent, or charter of incorporation. The king’s creation may be performed by the words “creamus, erigimus, fundamus, incorporamus,” or the like. Nay it is held, that if the king grants to a set of men to have gildam mercatoriam, a mercantile meeting or assembly[15], this is alone sufficient to incorporate and establish them for ever[16].
The parliament, we observed, by it’s absolute and transcendent authority, may perform this, or any other act whatsoever: and actually did perform it to a great extent, by statute 39 Eliz. c. 5. which incorporated all hospitals and houses of correction founded by charitable persons, without farther trouble: and the same has been done in other cases of charitable foundations. But otherwise it is not usual thus to intrench upon the prerogative of the crown, and the king may prevent it when he pleases. And, in the particular instance before-mentioned, it was done, as sir Edward Coke observes[17], to avoid the charges of incorporation and licences of mortmain in small benefactions; which in his days were grown so great, that they discouraged many men from undertaking these pious and charitable works.
The king (it is said) may grant to a subject the power of erecting corporations[18], though the contrary was formerly held[19]: that is, he may permit the subject to name the persons and powers of the corporation at his pleasure; but it is really the king that erects, and the subject is but the instrument: for though none but the king can make a corporation, yet qui facit per alium, facit per se[20]. In this manner the chancellor of the university of Oxford has power by charter to erect corporations; and has actually often exerted it, in the erection of several matriculated companies, now subsisting, of tradesmen subservient to the students.
When a corporation is erected, a name must be given it, and by that name alone it must sue, and be sued, and do all legal acts; though a very minute variation therein is not material[21]. Such name is the very being of it’s constitution; and, though it is the will of the king that erects the corporation, yet the name is the knot of it’s combination, without which it could not perform it’s corporate functions[22]. The name of incorporation, says sir Edward Coke, is as a proper name, or name of baptism; and therefore when a private founder gives his college or hospital a name, he does it only as a godfather; and by that same name the king baptizes the incorporation[23].
II. After a corporation is so formed and named, it acquires many powers, rights, capacities, and incapacities, which we are next to consider. Some of these are necessarily and inseparably incident to every corporation; which incidents, as soon as a corporation is duly erected, are tacitly annexed of course[24]. As, 1. To have perpetual succession. This is the very end of it’s incorporation: for there cannot be a succession for ever without an incorporation[25]; and therefore all aggregate corporations have a power necessarily implied of electing members in the room of such as go off[26]. 2. To sue or be sued, implead or be impleaded, grant or receive, by it’s corporate name, and do all other acts as natural persons may. 3. To purchase lands, and hold them, for the benefit of themselves and their successors: which two are consequential to the former. 4. To have a common seal. For a corporation, being an invisible body, cannot manifest it’s intentions by any personal act or oral discourse: it therefore acts and speaks only by it’s common seal. For, though the particular members may express their private consents to any act, by words, or signing their names, yet this does not bind the corporation: it is the fixing of the seal, and that only, which unites the several assents of the individuals, who compose the community, and make one joint assent of the whole[27]. 5. To make by-laws or private statutes for the better government of the corporation; which are binding upon themselves, unless contrary to the laws of the land, and then they are void. This is also included by law in the very act of incorporation[28]: for, as natural reason is given to the natural body for the governing it, so by-laws or statutes are a sort of political reason to govern the body politic. And this right of making by-laws for their own government, not contrary to the law of the land, was allowed by the law of the twelve tables at Rome[29]. But no trading company is, with us, allowed to make by-laws, which may affect: the king’s prerogative, or the common profit of the people, under penalty of 40𝑙. unless they be approved by the chancellor, treasurer, and chief justices, or the judges of assise in their circuits: and, even though they be so approved, still if contrary to law they are void[30]. These five powers are inseparably incident to every corporation, at least to every corporation aggregate: for two of them, though they may be practised, yet are very unnecessary to a corporation sole; viz. to have a corporate seal to testify his sole assent, and to make statutes for the regulation of his own conduct.
There are also certain privileges and disabilities that attend an aggregate corporation, and are not applicable to such as are sole; the reason of them ceasing, and of course the law. It must always appear by attorney; for it cannot appear in person, being, as sir Edward Coke says[31], invisible, and existing only in intendment and consideration of law. It can neither maintain, or be made defendant to, an action of battery or such like personal injuries; for a corporation can neither beat, nor be beaten, in it’s body politic[32]. A corporation cannot commit treason, or felony, or other crime, in it’s corporate capacity[33]: though it’s members may, in their distinct individual capacities[34]. Neither is it capable of suffering a traitor’s or felon’s punishment, for it is not liable to corporal penalties, nor to attainder, forfeiture, or corruption of blood. It cannot be executor or administrator, or perform any personal duties; for it cannot take an oath for the due execution of the office. It cannot be seised of lands to the use of another[35]; for such kind of confidence is foreign to the end of it’s institution. Neither can it be committed to prison[36]; for it’s existence being ideal, no man can apprehend or arrest it. And therefore also it cannot be outlawed; for outlawry always supposes a precedent right of arresting, which has been defeated by the parties absconding, and that also a corporation cannot do: for which reasons the proceedings to compel a corporation to appear to any suit by attorney are always by distress on their lands and goods[37]. Neither can a corporation be excommunicated; for it has no soul, as is gravely observed by sir Edward Coke[38]: and therefore also it is not liable to be summoned into the ecclesiastical courts upon any account; for those courts act only pro salute animae, and their sentences can only be enforced by spiritual censures: a consideration, which, carried to it’s full extent, would alone demonstrate the impropriety of these courts interfering in any temporal rights whatsoever.
There are also other incidents and powers, which belong to some sort of corporations, and not to others. An aggregate corporation may take goods and chattels for the benefit of themselves and their successors, but a sole corporation cannot[39]: for such moveable property is liable to be lost or imbezzled, and would raise a multitude of disputes between the successor and executor; which the law is careful to avoid. In ecclesiastical and eleemosynary foundations, the king or the founder may give them rules, laws, statutes, and ordinances, which they are bound to observe: but corporations merely lay, constituted for civil purposes, are subject to no particular statutes; but to the common law, and to their own by-laws, not contrary to the laws of the realm[40]. Aggregate corporations also, that have by their constitution a head, as a dean, warden, master, or the like, cannot do any acts during the vacancy of the headship, except only appointing another: neither are they then capable of receiving a grant; for such corporation is incomplete without a head[41]. But there may be a corporation aggregate constituted without a head[42]: as the collegiate church of Southwell in Nottinghamshire, which consists only of prebendaries; and the governors of the Charter-house, London, who have no president or superior, but are all of equal authority. In aggregate corporations also, the act of the major part is esteemed the act of the whole[43]. By the civil law this major part must have consisted of two thirds of the whole; else no act could be performed[44]: which perhaps may be one reason why they required three at least to make a corporation. But, with us, any majority is sufficient to determine the act of the whole body. And whereas, notwithstanding the law stood thus, some founders of corporations had made statutes in derogation of the common law, making very frequently the unanimous assent of the society to be necessary to any corporate act; (which king Henry VIII found to be a great obstruction to his projected scheme of obtaining a surrender of the lands of ecclesiastical corporations) it was therefore enacted by statute 33 Hen. VIII. c. 27. that all private statutes shall be utterly void, whereby any grant or election, made by the head, with the concurrence of the major part of the body, is liable to be obstructed by any one or more, being the minority: but this statute extends not to any negative or necessary voice, given by the founder to the head of any such fociety.
We before observed that it was incident to every corporation, to have a capacity to purchase lands for themselves and successors: and this is regularly true at the common law[45]. But they are excepted out of the statute of wills[46]; so that no devise of lands to a corporation by will is good: except for charitable uses, by statute 43 Eliz. c. 4[47]. And also, by a great variety of statutes[48], their privilege even of purchasing from any living grantor is greatly abridged; so that now a corporation, either ecclesiastical or lay, must have a licence from the king to purchase[49], before they can exert that capacity which is vested in them by the common law: nor is even this in all cases sufficient. These statutes are generally called the statutes of mortmain; all purchases made by corporate bodies being said to be purchases in mortmain, in mortua manu: for the reason of which appellation sir Edward Coke[50] offers many conjectures; but there is one which seems more probable than any that he has given us: viz. that these purchases being usually made by ecclesiastical bodies, the members of which (being professed) were reckoned dead persons in law, land therefore, holden by them, might with great propriety be said to be held in mortua manu.
I shall defer the more particular exposition of these statutes of mortmain, till the next book of these commentaries, when we shall consider the nature and tenures of estates; and also the exposition of those disabling statutes of queen Elizabeth, which restrain spiritual and eleemosynary corporations from aliening such lands as they are at present in legal possession of: only mentioning them in this place, for the sake of regularity, as statutable incapacities incident and relative to corporations.
The general duties of all bodies politic, considered in their corporate capacity, may, like those of natural persons, be reduced to this single one; that of acting up to the end or design, whatever it be, for which they were created by their founder.
III. I proceed therefore next to enquire, how these corporations may be visited. For corporations being composed of individuals, subject to human frailties, are liable, as well as private persons, to deviate from the end of their institution. And for that reason the law has provided proper persons to visit, enquire into, and correct all irregularities that arise in such corporations, either sole or aggregate, and whether ecclesiastical, civil, or eleemosynary. With regard to all ecclesiastical corporations, the ordinary is their visitor, so constituted by the canon law, and from thence derived to us. The pope formerly, and now the king, as supreme ordinary, is the visitor of the arch-bishop or metropolitan; the metropolitan has the charge and coercion of all his suffragan bishops; and the bishops in their several dioceses are in ecclesiastical matters the visitors of all deans and chapters, of all parsons and vicars, and of all other spiritual corporations. With respect to all lay-corporations, the founder, his heirs, or assigns, are the visitors, whether the foundation be civil or eleemosynary; for in a lay incorporation the ordinary neither can nor ought to visit[51].
I know it is generally said, thai civil corporations are subject to no visitation, but merely to the common law of the land; and this shall be presently explained. But first, as I have laid it down as a rule that the founder, his heirs, or assigns, are the visitors of all lay-corporations, let us enquire what is meant by the founder. The founder of all corporations in the strictest and original sense is the king alone, for he only can incorporate a society: and in civil incorporations, such as mayor and commonalty, &c, where there are no possessions or endowments given to the body, there is no other founder but the king: but in eleemosynary foundations, such as colleges and hospitals, where there is an endowment of lands, the law distinguishes, and makes two species of foundation; the one fundatio incipiens, or the incorporation, in which sense the king is the general founder of all colleges and hospitals; the other fundatio perficiens, or the dotation of it, in which sense the first gift of the revenues is the foundation, and he who gives them is in law the founder: and it is in this last sense that we generally call a man the founder of a college or hospital[52]. But here the king has his prerogative: for, if the king and a private man join in endowing an eleemosynary foundation, the king alone shall be the founder of it. And, in general, the king being the sole founder of all civil corporations, and the endower the perficient founder of all eleemosynary ones, the right of visitation of the former results, according to the rule laid down, to the king; and of the latter, to the patron or endower.
The king being thus constituted by law the visitor of all civil corporations, the law has also appointed the place, wherein he shall exercise this jurisdiction: which is the court of king’s bench; where, and where only, all misbehaviours of this kind of corporations are enquired into and redressed, and all their controversies decided. And this is what I understand to be the meaning of our lawyers, when they say that these civil corporations are liable to no visitation; that is, that the law having by immemorial usage appointed them to be visited and inspected by the king their founder, in his majesty’s court of king’s bench, according to the rules of the common law, they ought not to be visited elsewhere, or by any other authority[53]. And this is so strictly true, that though the king by his letters patent had subjected the college of physicians to the visitation of four very respectable persons, the lord chancellor, the two chief justices, and the chief baron; though the college had accepted this charter with all possible marks of acquiescence, and had acted under it for near a century; yet, in 1753, the authority of this provision coming in dispute, on an appeal preferred to these supposed visitors, they directed the legality of their own appointment to be argued: and, as this college was merely a civil and not an eleemosynary foundation, they at length determined, upon several days solemn debate, that they had no jurisdiction as visitors; and remitted the appellant (if aggrieved) to his regular remedy in his majesty’s court of king’s bench.
As to eleemosynary corporations, by the dotation the founder and his heirs are of common right the legal visitors, to see that that property is rightly employed, which would otherwise have descended to the visitor himself: but, if the founder has appointed and assigned any other person to be visitor, then his assignee so appointed is inverted with all the founder’s power, in exclusion of his heir. Eleemosynary corporations are chiefly hospitals, or colleges in the university. These were all of them considered by the popish clergy, as of mere ecclesiastical jurisdiction: however, the law of the land judged otherwise; and, with regard to hospitals, it has long been held[54], that if the hospital be spiritual, the bishop shall visit; but if lay, the patron. This right of lay patrons was indeed abridged by statute 2 Hen. V c. 1. which ordained, that the ordinary mould visit all hospitals founded by subjects; though the king’s right was reserved, to visit by his commissioners such as were of royal foundation. But the subject’s right was in part restored by statute 14 Eliz. c. 5. which directs the bishop to visit such hospitals only, where no visitor is appointed by the founders thereof: and all the hospitals founded by virtue of the statute 39 Eliz. c. 5. are to be visited by such persons as shall be nominated by the respective founders. But still, if the founder appoints nobody, the bishop of the diocese must visit[55].
Colleges in the universities (whatever the common law may now, or might formerly, judge) were certainly considered by the popish clergy, under whose direction they were, as ecclesiastical, or at least as clerical, corporations; and therefore the right of visitation was claimed by the ordinary of the diocese. This is evident, because in many of our most antient colleges, where the founder had a mind to subject them to a visitor of his own nomination, he obtained for that purpose a papal bulle to exempt them from the jurisdiction of the ordinary; several of which are still preserved in the archives of the respective societies. And I have reason to believe, that in one of our colleges, (wherein the bishop of that diocese, in which Oxford was formerly comprized, has immemorially exercised visitatorial authority) there is no special visitor appointed by the college statutes: so that the bishop’s interposition can be ascribed to nothing else, but his supposed title as ordinary to visit this, among other ecclesiastical foundations. And it is not impossible, that the number of colleges in Cambridge, which are visited by the bishop of Ely, may in part be derived from the same original.
But, whatever might be formerly the opinion of the clergy, it is now held as established common law, that colleges are lay corporations, though sometimes totally composed of ecclesiastical persons; and that the right of visitation does not arise from any principles of the canon law, but of necessity was created by the common law[56]. And yet the power and jurisdiction of visitors in colleges was left so much in the dark at common law, that the whole doctrine was very unsettled till king William’s time; in the sixth year of whose reign, the famous case of Philips and Bury happened[57]. In this the main question was, whether the sentence of the bishop of Exeter, who (as visitor) had deprived doctor Bury the rector of Exeter college, could be examined and redressed by the court of king’s bench. And the three puisne judges were of opinion, that it might be reviewed, for that the visitor’s jurisdiction could not exclude the common law; and accordingly judgment was given in that court. But the lord chief justice, Holt, was of a contrary opinion; and held, that by the common law the office of visitor is to judge according to the statutes of the college, and to expel and deprive upon just occasions, and to hear all appeals of course; and that from him, and him only, the party grieved ought to have redress; the founder having reposed in him so entire a confidence, that he will administer justice impartially, that his determinations are final, and examinable in no other court whatfoever. And, upon this, a writ of error being brought in the house of lords, they reversed the judgment of the court of king’s bench, and concurred in sir John Holt’s opinion. And to this leading case all subsequent determinations have been conformable. But, where the visitor is under a temporary disability, there the court of king’s bench will interpose, to prevent a defect of justice[58]. Also it is said[59], that if a founder of an eleemosynary foundation appoints a visitor, and limits his jurisdiction by rules and statutes, if the visitor in his sentence exceeds those rules, an action lies against him; but it is otherwise, where he mistakes in a thing within his power.
IV. We come now, in the last place, to consider how corporations may be dissolved. Any particular member may be disfranchised, or lose his place in the corporation, by acting contrary to the laws of the society, or the laws of the land; or he may resign it by his own voluntary act[60]. But the body politic may also itself be dissolved in several ways; which dissolution is the civil death of the corporation: and in this case their lands and tenements shall revert to the person, or his heirs, who granted them to the corporation; for the law doth annex a condition to every such grant, that if the corporation be dissolved, the grantor shall have the lands again, because the cause of the grant faileth[61]. The grant is indeed only during the life of the corporation; which may endure for ever: but, when that life is determined by the dissolution of the body politic, the grantor takes it back by reversion, as in the case of every other grant for life. And hence it appears how injurious, as well to private as public rights, those statutes were, which vested in king Henry VIII, instead of the heirs of the founder, the lands of the dissolved monasteries. The debts of a corporation, either to or from it, are totally extinguished by it’s dissolution; so that the members thereof cannot recover, or be charged with them, in their natural capacities[62]: agreeable to that maxim of the civil law[63], “si quid universitati debetur, singulis non debetur; nec, quod debet universitas, singuli debent.”
A corporation may be dissolved, 1. By act of parliament, which is boundless in it’s operations. 2. By the natural death of all it’s members, in case of an aggregate corporation. 3. By surrender of it’s franchises into the hands of the king, which is a kind of suicide. 4. By forfeiture of it’s charter, through negligence or abuse of it’s franchises; in which case the law judges that the body politic has broken the condition upon which it was incorporated, and thereupon the incorporation is void. And the regular course is to bring an information in nature of a writ of quo warranto, to enquire by what warrant the members now exercise their corporate power, having forfeited it by such and such proceedings. The exertion of this act of law, for the purposes of the state, in the reigns of king Charles and king James the second, particularly by seising the charter of the city of London, gave great and just offence; though perhaps, in strictness of law, the proceedings in most of them were sufficiently regular: but the judgment against that of London was reversed by act of parliament[64] after the revolution; and by the same state it is enacted, that the franchises of the city of London shall never more be forfeited for any cause whatsoever. And, because by the common law corporations were dissolved, in case the mayor or head officer was not duly elected on the day appointed in the charter or established by prescription, it is now provided[65], that for the future no corporation shall be dissolved upon that account; and ample directions are given for appointing a new officer, in case there be no election, or a void one, made upon the charter or prescriptive day.
The end of the first book.
↑ Ff. l. 3. t. 4. per tot.
↑ Ff. 50. 16. 8.
↑ Ff. 3. 4. 7.
↑ Co. Litt. 43.
↑ Such as at Manchester, Eton, Winchester, &c.
↑ 1 Lord Raym. 6.
↑ Ff. 47. 22. 1. Neque societas, neque collegium, neque hujusmodi corpus passim omnibus habere conceditur; nam et legibus, et senatus consultis, et principalibus constitutionibus ea res coercetur. Ff. 3. 4. 1.
↑ 2 Inst. 330.
↑ 10 Rep. 29. 1 Roll. Abr. 512.
↑ 8 Rep. 114.
↑ 14 & 15 Hen. VIII. c. 5.
↑ Stat. 5 & 6 W. & M. c. 20.
↑ Stat. 23 Geo. II. c. 4.
↑ See pag. 272.
↑ Gild signified among the Saxons a fraternity, derived from the verb gildan to pay, because every man paid his share towards the expenses of the community. And hence their place of meeting is frequently called the Gild-hall.
↑ 10 Rep. 30. 1 Roll. Abr. 513.
↑ 2 Inst. 722.
↑ Bro. Abr. tit. Prerog. 53. Viner. Prerog. 88. pl. 16.
↑ Yearbook, 2 Hen. VII. 13.
↑ 10 Rep. 33.
↑ Ibid. 122.
↑ Gilb. Hist. C. P. 182.
↑ 10 Rep. 28.
↑ Ibid. 30. Hob. 211.
↑ 10 Rep. 26.
↑ 1 Roll. Abr. 514.
↑ Dav. 44. 48.
↑ Hob. 211.
↑ Sodales legem quam volent, dum ne quid ex publica lege corrumpant, sibi ferunto.
↑ Stat. 19 Hen. VII. c. 7. 11 Rep. 54.
↑ 10 Rep. 32.
↑ Bro. Abr. tit. Corporation. 63.
↑ 10 Rep. 32.
↑ The civil law also ordains that, for the misbehaviour of a body corporate, the directors only shall be answerable in their personal capacities. Ff. 4. 3. 15.
↑ Bro. Abr. tit. Feoffm. al. uses. 40. Bacon of uses. 347.
↑ Plowd. 538.
↑ Bro. Abr. tit. Corporation. 11. Outlawry. 72.
↑ 10 Rep. 32.
↑ Co. Litt. 46.
↑ Lord Raym. 8.
↑ Co. Litt. 263, 264.
↑ 10 Rep. 30.
↑ Bro. Abr. tit. Corporation. 31. 34.
↑ Ff. 3. 4. 3.
↑ 10 Rep. 30.
↑ 34 Hen. VIII. c. 5.
↑ Hob. 136.
↑ From magna carta, 9 Hen. III. c. 36. to 9 Geo. II. c. 36.
↑ By the civil law a corporation was incapable of taking lands, unless by special privilege from the emperor: collegium, si nullo speciali privilegio subnixum sit, haereditatem capere non posse, dubium non est. Cod. 6. 24. 8.
↑ 1 Inst. 2.
↑ 10 Rep. 31.
↑ Ibid. 33.
↑ This notion is perhaps too refined. The court of king’s bench, from it’s general superintendent authority where other jurisdictions are deficient, has power to regulate all corporations where no special visitor is appointed. But, as it’s judgments are liable to be reversed by writs of error, it wants one of the essential marks of visitatorial power.
↑ Yearbook, 8 Edw. III. 28. 8 Ass. 29.
↑ 2 Inst. 725.
↑ Lord Raym. 8.
↑ Lord Raym. 5. 4 Mod. 106. Shower. 35. Skinn. 407. Salk. 403. Carthew. 180.
↑ Stra. 797.
↑ 2 Lutw. 1566.
↑ 11 Rep. 98.
↑ Co. Litt. 13.
↑ 1 Lev. 237.
↑ Ff. 3. 4. 7.
↑ Stat. 2 W. & M. c. 8.
↑ Stat. 11 Geo I. c. 4.
Commentaries
on the
Laws of England.
Book the second.
Of the RIGHTS of THINGS.
Chapter the first.
Of PROPERTY, in general.
THE former book of these commentaries having treated at large of the jura personarum, or such rights and duties as are annexed to the persons of men, the objects of our enquiry in this second book will be the jura rerum, or, those rights which a man may acquire in and to such external things as are unconnected with his person. These are what the writers on natural law stile the rights of dominion, or property, concerning the nature and original of which I shall first premise a few observations, before I proceed to distribute and consider it’s several objects.
There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe. And yet there are very few that will give themselves the trouble to consider the original and foundation of this right. Pleased as we are with the possession, we seem afraid to look back to the means by which it was acquired, as if fearful of some defect in our title; or at best we rest satisfied with the decision of the laws in our favour, without examining the reason or authority upon which those laws have been built. We think it enough that our title is derived by the grant of the former proprietor, by descent from our ancestors, or by the last will and testament of the dying owner; not caring to reflect that (accurately and strictly speaking) there is no foundation in nature or in natural law, why a set of words upon parchment should convey the dominion of land; why the son should have a right to exclude his fellow creatures from a determinate spot of ground, because his father had done so before him; or why the occupier of a particular field or of a jewel, when lying on his death-bed and no longer able to maintain possession, should be entitled to tell the rest of the world which of them should enjoy it after him. These enquiries, it must be owned, would be useless and even troublesome in common life. It is well if the mass of mankind will obey the laws when made, without scrutinizing too nicely into the reasons of making them. But, when law is to be considered not only as matter of practice, but also as a rational science, it cannot be improper or useless to examine more deeply the rudiments and grounds of these positive constitutions of society.
In the beginning of the world, we are informed by holy writ, the all-bountiful creator gave to man “dominion over all the earth; and over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth[1].” This is the only true and solid foundation of man’s dominion over external things, whatever airy metaphysical notions may have been started by fanciful writers upon this subject. The earth therefore, and all things therein, are the general property of all mankind, exclusive of other beings, from the immediate gift of the creator. And, while the earth continued bare of inhabitants, it is reasonable to suppose, that all was in common among them, and that every one took from the public stock to his own use such things as his immediate necessities required.
These general notions of property were then sufficient to answer all the purposes of human life; and might perhaps still have answered them, had it been possible for mankind to have remained in a state of primaeval simplicity: as may be collected from the manners of many American nations when first discovered by the Europeans; and from the antient method of living among the first Europeans themselves, if we may credit either the memorials of them preserved in the golden age of the poets, or the uniform accounts given by historians of those times, wherein “erant omnia communia et indivisa omnibus, veluti unum cunctis patrimonium esset[2].” Not that this communion of goods seems ever to have been applicable, even in the earliest ages, to ought but the substance of the thing; nor could be extended to the use of it. For, by the law of nature and reason, he who first began to use it, acquired therein a kind of transient property, that lasted so long as he was using it, and no longer[3]: or, to speak with greater precision, the right of possession continued for the same time only that the act of possession lasted. Thus the ground was in common, and no part of it was the permanent property of any man in particular: yet whoever was in the occupation of any determinate spot of it, for rest, for shade, or the like, acquired for the time a sort of ownership, from which it would have been unjust, and contrary to the law of nature, to have driven him by force; but the instant that he quitted the use or occupation of it, another might seise it without injustice. Thus also a vine or other tree might be said to be in common, as all men were equally entitled to it’s produce; and yet any private individual might gain the sole property of the fruit, which he had gathered for his own repast. A doctrine well illustrated by Cicero, who compares the world to a great theatre, which is common to the public, and yet the place which any man has taken is for the time his own[4].
But when mankind increased in number, craft, and ambition, it became necessary to entertain conceptions of more permanent dominion; and to appropriate to individuals not the immediate use only, but the very substance of the thing, to be used. Otherwise innumerable tumults must have arisen, and the good order of the world been continually broken and disturbed, while a variety of persons were striving who should get the first occupation of the same thing, or disputing which of them had actually gained it. As human life also grew more and more refined, abundance of conveniences were devised to render it more easy, commodious, and agreeable; as, habitations for shelter and safety, and raiment for warmth and decency. But no man would be at the trouble to provide either, so long as he had only an usufructuary property in them, which was to cease the instant that he quitted possession; — if, as soon as he walked out of his tent, or pulled off his garment, the next stranger who came by would have a right to inhabit the one, and to wear the other. In the case of habitations in particular, it was natural to observe, that even the brute creation, to whom every thing else was in common, maintained a kind of permanent property in their dwellings, especially for the protection of their young; that the birds of the air had nests, and the beasts of the field had caverns, the invasion of which they esteemed a very flagrant injustice, and would sacrifice their lives to preserve them. Hence a property was soon established in every man’s house and home-stall; which seem to have been originally mere temporary huts or moveable cabins, suited to the design of providence for more speedily peopling the earth, and suited to the wandering life of their owners, before any extensive property in the soil or ground was established. And there can be no doubt, but that moveables of every kind became sooner appropriated than the permanent substantial soil: partly because they were more susceptible of a long occupancy, which might be continued for months together without any sensible interruption, and at length by usage ripen into an established right; but principallv because few of them could be fit for use, till improved and meliorated by the bodily labour of the occupant: which bodily labour, bestowed upon any subject which before lay in common to all men, is universally allowed to give the fairest and most reasonable title to an exclusive property therein.
The article of food was a more immediate call, and therefore a more early consideration. Such, as were not contented with the spontaneous product of the earth, fought for a more solid refreshment in the flesh of beasts, which they obtained by hunting. But the frequent disappointments, incident to that method of provision, induced them to gather together such animals as were of a more tame and sequacious nature; and to establish a permanent property in their stocks and herds, in order to sustain themselves in a less precarious manner, partly by the milk of the dams, and partly by the flesh of the young. The support of these their cattle made the article of water also a very important point. And therefore the book of Genesis (the most venerable monument of antiquity, considered merely with a view to history) will furnish us with frequent instances of violent contentions concerning wells; the exclusive property of which appears to have been established in the first digger or occupant, even in such places where the ground and herbage remained yet in common. Thus we find Abraham, who was but a sojourner, asserting his right to a well in the country of Abimelech, and exacting an oath for his security, “because he had digged that well[5].” And Isaac, about ninety years afterwards, re-claimed this his father’s property; and, after much contention with the Philistines, was suffered to enjoy it in peace[6].
All this while the soil and pasture of the earth remained still in common as before, and open to every occupant: except perhaps in the neighbourhood of towns, where the necessity of a sole and exclusive property in lands (tor the sake of agriculture) was earlier felt, and therefore more readily complied with. Otherwise, when the multitude of men and cattle had consumed every convenience on one spot of ground, it was deemed a natural right to seise upon and occupy such other lands as would more easily supply their necessities. This practice is still retained among the wild and uncultivated nations that have never been formed into civil states, like the Tartars and others in the east; where the climate itself, and the boundless extent of their territory, conspire to retain them still in the same savage state of vagrant liberty, which was universal in the earliest ages; and which Tacitus informs us continued among the Germans till the decline of the Roman empire[7]. We have also a striking example of the same kind in the history of Abraham and his nephew Lot[8]. When their joint substance became so great, that pasture and other conveniences grew scarce, the natural consequence was that a strife arose between their servants; so that it was no longer practicable to dwell together. This contention Abraham thus endeavoured to compose; “let there be no strife, I pray thee, between thee and me. Is not the whole land before thee? Separate thyself, I pray thee, from me. If thou wilt take the left hand, then will I go to the right; or if thou depart to the right hand, then will I go to the left.” This plainly implies an acknowleged right, in either, to occupy whatever ground he pleased, that was not pre-occupied by other tribes. “And Lot lifted up his eyes, and beheld all the plain of Jordan, that it was well watered every where, even as the garden of the Lord. Then Lot chose him all the plain of Jordan, and journeyed east; and Abraham dwelt in the land of Canaan.”
Upon the same principle was founded the right of migration, or sending colonies to find out new habitations, when the mother-country was overcharged with inhabitants; which was practised as well by the Phaenicians and Greeks, as the Germans, Scythians, and other northern people. And, so long as it was confined to the stocking and cultivation of desart uninhabited countries, it kept strictly within the limits of the law of nature. But how far the seising on countries already peopled, and driving out or massacring the innocent and defenceless natives, merely because they differed from their invaders in language, in religion, in customs, in government, or in colour; how far such a conduct was consonant to nature, to reason, or to christianity, deserved well to be considered by those, who have rendered their names immortal by thus civilizing mankind.
As the world by degrees grew more populous, it daily became more difficult to find out new spots to inhabit, without encroaching upon former occupants; and, by constantly occupying the same individual spot, the fruits of the earth were consumed, and it’s spontaneous produce destroyed, without any provision for a future supply or succession. It therefore became necessary to pursue some regular method of providing a conftant subsistence; and this necessity produced, or at least promoted and encouraged, the art of agriculture. And the art of agriculture, by a regular connexion and consequence, introduced and established the idea of a more permanent property in the soil, than had hitherto been received and adopted. It was clear that the earth would not produce her fruits in sufficient quantities, without the assistance of tillage: but who would be at the pains of tilling it, if another might watch an opportunity to seise upon and enjoy the product of his industry, art, and labour? Had not therefore a separate property in lands, as well as moveables, been vested in some individuals, the world must have continued a forest, and men have been mere animals of prey; which, according to some philosophers, is the genuine state of nature. Whereas now (so graciously has providence interwoven our duty and our happiness together) the result of this very necessity has been the enobling of the human species, by giving it opportunities of improving it’s rational faculties, as well as of exerting it’s natural. Necessity begat property; and, in order to insure that property, recourse was had to civil society, which brought along with it a long train of inseparable concomitants; states, government, laws, punishments and the public exercise of religious duties. Thus connected together, it was found that a part only of society was sufficient to provide, by their manual labour, for the necessary subsistence of all; and leisure was given to others to cultivate the human mind, to invent useful arts, and to lay the foundations of science.
The only question remaining is, how this property became actually vested; or what it is that gave a man an exclusive right to retain in a permanent manner that specific land, which before belonged generally to every body, but particularly to nobody. And, as we before observed that occupancy gave the right to the temporary use of the soil, so it is agreed upon all hands that occupancy gave also the original right to the permanent property in the substance of the earth itself; which excludes every one else but the owner from the use of it. There is indeed some difference among the writers on natural law, concerning the reason why occupancy should convey this right, and invest one with this absolute property: Grotius and Puffendorf insisting, that this right of occupancy is founded upon a tacit and implied assent of all mankind, that the first occupant should become the owner; and Barbeyrac, Titius, Mr Locke, and others, holding, that there is no such implied assent, neither is it necessary that there should be; for that the very act of occupancy, alone, being a degree of bodily labour, is from a principle of natural justice, without any consent or compact, sufficient of itself to gain a title. A dispute that favours too much of nice and scholastic refinement! However, both sides agree in this, that occupancy is the thing by which the title was in fact originally gained; every man seising to his own continued use such spots of ground as he found most agreeable to his own convenience, provided he found them unoccupied by any one else.
Property, both in lands and moveables, being thus originally acquired by the first taker, which taking amounts to a declaration that he intends to appropriate the thing to his own use, it remains in him, by the principles of universal law, till such time as he does some other act which shews an intention to abandon it: for then it becomes, naturally speaking, publici juris once more, and is liable again to be appropriated by the next occupant. So if one is possessed of a jewel, and casts it into the sea or a public highway, this is such an express dereliction, that a property will be vested in the first fortunate finder that will seise it to his own use. But if he hides it privately in the earth, or other secret place, and it is discovered, the finder acquires no property therein; for the owner hath not by this act declared any intention to abandon it, but rather the contrary: and if he loses or drops it by accident, it cannot be collected from thence, that he designed to quit the possession; and therefore in such case the property still remains in the loser, who may claim it again of the finder. And this, we may remember, is the doctrine of the law of England, with relation to treasure trove[9].
But this method, of one man’s abandoning his property, and another’s seising the vacant possession, however well founded in theory, could not long subsist in fact. It was calculated merely for the rudiments of civil society, and necessarily ceased among the complicated interests and artificial refinements of polite and established governments. In these it was found, that what became inconvenient or useless to one man was highly convenient and useful to another; who was ready to give in exchange for it some equivalent, that was equally desirable to the former proprietor. Thus mutual convenience introduced commercial traffic, and the reciprocal transfer of property by sale, grant, or conveyance: which may be considered either as a continuance of the original possession which the first occupant had; or as an abandoning of the thing by the present owner, and an immediate successive occupancy of the same by the new proprietor. The voluntary dereliction of the owner, and delivering the possession to another individual, amount to a transfer of the property; the proprietor declaring his intention no longer to occupy the thing himself, but that his own right of occupancy shall be vested in the new acquirer. Or, taken in the other light, if I agree to part with an acre of my land to Titius, the deed of conveyance is an evidence of my having abandoned the property, and Titius, being the only or first man acquainted with such my intention, immediately steps in and seises the vacant possession: thus the consent expressed by the conveyance gives Titius a good right against me; and possession, or occupancy, confirms that right against all the world besides.
The most universal and effectual way, of abandoning property, is by the death of the occupant: when, both the actual possession and intention of keeping possession ceasing, the property, which is founded upon such possession and intention, ought also to cease of course. For, naturally speaking, the instant a man ceases to be, he ceases to have any dominion: else, if he had a right to dispose of his acquisitions one moment beyond his life, he would also have a right to direct their disposal for a million of ages after him; which would be highly absurd and inconvenient. All property must therefore cease upon death, considering men as absolute individuals, and unconnected with civil society: for then, by the principles before established, the next immediate occupant would acquire a right in all that the deceased possessed. But as, under civilized governments which are calculated for the peace of mankind, such a constitution would be productive of endless disturbances, the universal law of almost every nation (which is a kind of secondary law of nature) has either given the dying person a power of continuing his property, by disposing of his possessions by will; or, in case he neglects to dispose of it, or is not permitted to make any disposition at all, the municipal law of the country then steps in, and declares who shall be the successor, representative, or heir of the deceased; that is, who alone shall have a right to enter upon this vacant possession, in order to avoid that confusion, which it’s becoming again common would occasion[10]. And farther, in case no testament be permitted by the law, or none be made, and no heir can be found so qualified as the law requires, still, to prevent the robust title of occupancy from again taking place, the doctrine of escheats is adopted in almost every country; whereby the sovereign of the state, and those who claim under his authority, are the ultimate heirs, and succeed to those inheritances, to which no other title can be formed.
The right of inheritance, or descent to the children and relations of the deceased, seems to have been allowed much earlier than the right of devising by testament. We are apt to conceive at first view that it has nature on it’s side; yet we often mistake for nature what we find established by long and inveterate custom. It is certainly a wise and effectual, but clearly a political, establishment; since the permanent right of property, vested in the ancestor himself, was no natural, but merely a civil, right. It is true, that the transmission of one’s possessions to posterity has an evident tendency to make a man a good citizen and a useful member of society: it sets the passions on the side of duty, and prompts a man to deserve well of the public, when he is sure that the reward of his services will not die with himself, but be transmitted to those with whom he is connected by the dearest and most tender affections. Yet, reasonable as this foundation of the right of inheritance may seem, it is probable that it’s immediate original arose not from speculations altogether so delicate and refined; and, if not from fortuitous circumstances, at least from a plainer and more simple principle. A man’s children or nearest relations are usually about him on his death-bed, and are the earliest witnesses of his decease. They became therefore generally the next immediate occupants, till at length in process of time this frequent usage ripened into general law. And therefore also in the earliest ages, on failure of children, a man’s servants born under his roof were allowed to be his heirs; being immediately on the spot when he died. For we find the old patriarch Abraham expressly declaring, that “since God had given him no seed, his steward Eliezer, one born in his house, was his heir[11].”
While property continued only for life, testaments were useless and unknown; and, when it became inheritable, the inheritance was long indefeasible, and the children or heirs at law were incapable of exclusion by will. Till at length it was found, that so strict a rule of inheritance made heirs disobedient and head-strong, defrauded creditors of their just debts, and prevented many provident fathers from dividing or charging their estates as the exigence of their families required. This introduced pretty generally the right of disposing one’s property, or a part of it, by testament; that is, by written or oral instructions properly witnessed and authenticated, according to the pleasure of the deceased; which we therefore emphatically stile his will. This was established in some countries much later than in others. With us in England, till modern times, a man could only dispose of one third of his moveables from his wife and children: and, in general, no will was permitted of lands till the reign of Henry the eighth; and then only of a certain portion: for it was not till after the restoration that the power of devising real property became so universal as at present.
Wills therefore and testaments, rights of inheritance and successions, are all of them creatures of the civil or municipal laws, and accordingly are in all respects regulated by them; every distinct country having different ceremonies and requisites to make a testament completely valid: neither does any thing vary more than the right of inheritance under different national establishments. In England particularly, this diversity is carried to such a length, as if it had been meant to point out the power of the laws in regulating the succession to property, and how futile every claim must be that has not it’s foundation in the positive rules of the state. In personal estates the father may succeed to his children; in landed property he never can be their immediate heir, by any the remotest possibility: in general only the eldest son, in some places only the youngest, in others all the sons together, have a right to succeed to the inheritance: in real estates males are preferred to females, and the eldest male will usually exclude the rest; in the division of personal estates, the females of equal degree are admitted together with the males, and no right of primogeniture is allowed.
This one consideration may help to remove the scruples of many well-meaning persons, who set up a mistaken conscience in opposition to the rules of law. If a man disinherits his son, by a will duly executed, and leaves his estate to a stranger, there are many who consider this proceeding as contrary to natural justice: while others so scrupulously adhere to the supposed intention of the dead, that if a will of lands be attested by only two witnesses instead of three, which the law requires, they are apt to imagine that the heir is bound in conscience to relinquish his title to the devisee. But both of them certainly proceed upon very erroneous principles: as if, on the one hand, the son had by nature a right to succeed to his father’s lands; or as if, on the other hand, the owner was by nature intitled to direct the succession of his property after his own decease. Whereas the law of nature suggests, that on the death of the possessor the estate should again become common, and be open to the next occupant, unless otherwise ordered for the sake of civil peace by the positive law of society. The positive law of society, which is with us the municipal law of England, directs it to vest in such person as the last proprietor shall by will, attended with certain requisites, appoint; and, in defect of such appointment, to go to some particular person, who, from the result of certain local constitutions, appears to be the heir at law. Hence it follows, that, where the appointment is regularly made, there cannot be a shadow of right in any one but the person appointed: and, where the necessary requisites are omitted, the right of the heir is equally strong and built upon as solid a foundation, as the right of the divisee would have been, supposing such requisites were observed.
But, after all, there are some few things, which notwithstanding the general introduction and continuance of property, must still unavoidably remain in common; being such wherein nothing but an usufructuary property is capable of being had; and therefore they still belong to the first occupant, during the time he holds possession of them, and no longer. Such (among others) are the elements of light, air, and water; which a man may occupy by means of his windows, his gardens, his mills, and other conveniences: such also are the generality of those animals which are said to be ferae naturae, or of a wild and untameable disposition; which any man may seise upon and keep for his own use or pleasure. All these things, so long as they remain in possession, every man has a right to enjoy without disturbance; but if once they escape from his custody, or he voluntarily abandons the use of them, they return to the common stock, and any man else has an equal right to seise and enjoy them afterwards.
Again; there are other things, in which a permanent property may subsist, not only as to the temporary use, but also the solid subsistance; and which yet would be frequently found without a proprietor, had not the wisdom of the law provided a remedy to obviate this inconvenience. Such are forests and other waste grounds, which were omitted to be appropriated in the general distribution of lands: such also are wrecks, estrays, and that species of wild animals, which the arbitrary constitutions of positive law have distinguised from the rest by the well-known appellation of game. With regard to these and some others, as disturbances and quarrels would frequently arise among individuals, contending about the acquisition of this species of property by first occupancy, the law has therefore wisely cut up the root of diffension, by vesting the things themselves in the sovereign of the state; or else in his representatives, appointed and authorized by him, being usually the lords of manors. And thus the legislature of England has universally promoted the grand ends of civil society, the peace and security of individuals, by steadily pursuing that wise and orderly maxim, of assigning to every thing capable of ownership a legal and determinate owner.
↑ Gen. 1. 28.
↑ Justin. l. 43. c. 1.
↑ Baibeyr. Puff. l. 4. c. 4.
↑ Quemadmodum theatrum, cum commune sit, recte tamen dici potest, ejus esse eum locum quem quisque occuparit. De Fin. l. 3. c. 20.
↑ Gen. 21. 30.
↑ Gen. 26. 15. 18, &c.
↑ Colunt discreti et diversi; ut fons, ut campus, ut nemus placuit. De mor. Germ. 16.
↑ Gen. c. 13.
↑ See book I. pag. 285.
↑ It is principally to prevent any vacancy of possession, that the civil law considers father and son as one person; so that upon the death of either the inheritance does not so properly descend, as continue in the hands of the survivor. Ff. 28. 2. 11.
↑ Gen. 15. 3.
Chapter the second.
Of REAL PROPERTY; and, first, of
CORPOREAL HEREDITAMENTS.
THE objects of dominion or property are things, as contradistinguished from persons: and things are by the law of England distributed into two kinds; things real, and things personal. Things real are such as are permanent, fixed, and immoveable, which cannot be carried out of their place; as lands and tenements: things personal are goods, money, and all other moveables; which may attend the owner’s person wherever he thinks proper to go.
In treating of things real, let us consider, first, their several sorts or kinds; secondly, the tenures by which they may be holden; thirdly, the estates which may be had in them; and, fourthly, the title to them, and the manner of acquiring and losing it.
First, with regard to their several sorts or kinds, things real are usually said to consist in lands, tenements, or hereditaments. Land comprehends all things of a permanent, substantial nature; being a word of a very extensive signification, as will presently appear more at large. Tenement is a word of still greater extent; and though in it’s vulgar acceptation it is only applied to houses and other buildings, yet in it’s original, proper, and legal sense it signifies every thing that may be holden, provided it be of a permanent nature; whether it be of a substantial and sensible, or of an unsubstantial ideal kind. Thus liberum tenementum, franktenement, or freehold, is applicable not only to lands and other solid objects, but also to offices, rents, commons, and the like[1]: and as lands and houses are tenements, so is an advowson a tenement; and a franchise, an office, a right of common, a peerage, or other property of the like unsubstantial kind, are, all of them, legally speaking, tenements[2]. But an hereditament, says sir Edward Coke[3], is by much the largest and most comprehensive expression; for it includes not only lands and tenements, but whatsoever may be inherited, be it corporeal, or incorporeal, real, personal, or mixed. Thus an heir loom, or implement of furniture which by custom descends to the heir together with an house, is neither land, nor tenement, but a mere moveable; yet, being inheritable, is comprized under the general word, hereditament: and so a condition, the benefit of which may descend to a man from his ancestor, is also an hereditament[4].
Hereditaments then, to use the largest expression, are, of two kinds, corporeal, and incorporeal. Corporeal consist of such as affect the senses; such as may be seen and handled by the body: incorporeal are not the object of sensation, can neither be seen nor handled, are creatures of the mind, and exist only in contemplation.
Corporeal hereditaments consist wholly of substantial and permanent objects; all which may be comprehended under the general denomination of land only. For land, says sir Edward Coke[5], comprehendeth in it’s legal signification any ground, soil, or earth whatsoever; as arable, meadows, pastures, woods, moors, waters, marishes, furzes, and heath. It legally includeth also all castles, houses, and other buildings: for they consist, saith he, of two things; land, which is the foundation; and structure thereupon: so that, if I convey the land or ground, the structure or building passeth therewith. It is observable that water is here mentioned as a species of land, which may seem a kind of solecism; but such is the language of the law: and I cannot bring an action to recover possession of a pool or other piece of water, by the name of water only; either by calculating it’s capacity, as, for so many cubical yards; or, by superficial measure, for twenty acres of water; or by general description, as for a pond, a watercourse, or a rivulet: but I must bring my action for the land that lies at the bottom, and must call it twenty acres of land covered with water[6]. For water is a moveable, wandering thing, and must of necessity continue common by the law of nature; so that I can only have a temporary, transient, usufructuary property therein: wherefore if a body of water runs out of my pond into another man’s, I have no right to reclaim it. But the land, which that water covers, is permanent, fixed, and immoveable: and therefore in this I may have a certain, substantial property; of which the law will take notice, and not of the other.
Land hath also, in it’s legal signification, an indefinite extent, upwards as well as downwards. Cujus est solum, ejus est usque ad coelum, is the maxim of the law, upwards; therefore no man may erect any building, or the like, to overhang another’s land: and, downwards, whatever is in a direct line between the surface of any land, and the center of the earth, belongs to the owner of the surface; as is every day’s experience in the mining countries. So that the word “land” includes not only the face of the earth, but every thing under it, or over it. And therefore if a man grants all his lands, he grants thereby all his mines of metal and other fossils, his woods, his waters, and his houses, as well as his fields and meadows. Not but the particular names of the things are equally sufficient to pass them, except in the instance of water; by a grant of which, nothing passes but a right of fishing[7]: but the capital distinction is this; that by the name of a castle, messuage, toft, croft, or the like, nothing else will pass, except what falls with the utmost propriety under the term made use of; but by the name of land, which is nomen generalissimum, every thing terrestrial will pass[8].
↑ Co. Litt. 6.
↑ Ibid. 19, 20.
↑ 1 Inst. 6.
↑ 3 Rep. 2.
↑ 1 Inst. 4.
↑ Brownl. 142.
↑ Co. Litt. 4.
↑ Ibid. 4, 5, 6.
Chapter the third.
Of INCORPOREAL HEREDITAMENTS.
AN incorporeal hereditament is a right issuing out of a thing corporate (whether real or personal) or concerning, or annexed to, or exercisible within, the same[1]. It is not the thing corporate itself, which may consist in lands, houses, jewels, or the like; but something collateral thereto, as a rent issuing out of those lands or houses, or an office relating to those jewels. In short, as the logicians speak, corporeal hereditaments are the substance, which may be always seen, always handled: incorporeal hereditaments are but a sort of accidents, which inhere in and are supported by that substance; and may belong, or not belong to it, without any visible alteration therein. Their existence is merely in idea and abstracted contemplation; though their effects and profits may be frequently objects of our bodily senses. And indeed, if we would fix a clear notion of an incorporeal hereditament, we must be careful not to confound together the profits produced, and the thing, or hereditament, which produces them. An annuity, for instance, is an incorporeal hereditament: for though the money, which is the fruit or product of this annuity, is doubtless of a corporeal nature, yet the annuity itself, which produces that money, is a thing invisible, has only a mental existence, and cannot be delivered over from hand to hand. So tithes, if we consider the produce of them, as the tenth sheaf or tenth lamb, seem to be completely corporeal; yet they are indeed incorporeal hereditaments: for they, being merely a contingent right, collateral to or issuing out of lands, can never be the object of sense: they are neither capable of being shewn to the eye, nor of being delivered into bodily possession.
Incorporeal hereditaments are principally of ten sorts; advowsons, tithes, commons, ways, offices, dignities, franchises, corodies or pensions, annuities, and rents.
I. Advowson is the right of presentation to a church, or ecclesiastical benefice. Advowson, advocatio, signifies in clientelam recipere, the taking into protection; and therefore is synonymous with patronage, patronatus: and he who has the right of advowson is called the patron of the church. For, when lords of manors first built churches on their own demesnes, and appointed the tithes of those manors to be paid to the officiating ministers, which before were given to the clergy in common (from whence, as was formerly mentioned[2], arose the division of parishes) the lord, who thus built a church, and endowed it with glebe or land, had of common right a power annexed of nominating such minister as he pleased (provided he were canonically qualified) to officiate in that church of which he was the founder, endower, maintainer, or, in one word, the patron[3].
This instance of an advowson will completely illustrate the nature of an incorporeal hereditament. It is not itself the bodily possession of the church and it’s appendages; but it is a right to give some other man a title to such bodily possession. The advowson is the object of neither the fight, nor the touch; and yet it perpetually exists in the mind’s eye, and in contemplation of law. It cannot be delivered from man to man by any visible bodily transfer, nor can corporal possession be had of it. If the patron takes corporal possession of the church, the church-yard, the glebe or the like, he intrudes on another man’s property; for to these the parson has an exclusive right. The patronage can therefore be only conveyed by operation of law, by verbal grant, either oral or written, which is a kind of invisible, mental transfer: and being so vested, it lies dormant and unnoticed, till occasion calls it forth; when it produces a visible, corporeal fruit, by intitling some clerk, whom, the patron shall please to nominate, to enter and receive bodily possession of the lands and tenements of the church.
Advowsons are either advowsons appendant, or advowsons in gross. Lords of manors being originally the only founders, and of course the only patrons, of churches[4], the right of patronage or presentation, so long as it continues annexed to the possession of the manor, as some have done from the foundation of the church to this day, is called an advowson appendant[5]: and it will pass, or be conveyed, together with the manor, as incident and appendant thereto, by a grant of the manor only, without adding any other words[6]. But where the property of the advowson has been once separated from the property of the manor, by legal conveyance, it is called an advowson in gross, or at large, and never can be appendant any more; but is for the future annexed to the person of it’s owner, and not to his manor or lands[7].
Advowsons are also either presentative, collative, or donative[8]. An advowson presentative is where the patron hath a right of presentation to the bishop or ordinary, and moreover to demand of him to institute his clerk, if he find him canonically qualified: and this is the most usual advowson. An advowson collative is where the bishop and patron are one and the same person: in which case the bishop cannot present to himself; but he does, by the one act of collation, or conferring the benefice, the whole that is done in common cases, by both presentation and institution. An advowson donative is when the king, or any subject by his licence, doth found a church or chapel, and ordains that it shall be merely in the gift or disposal of the patron; subject to his visitation only, and not to that of the ordinary; and vested absolutely in the clerk by the patron’s deed of donation, without presentation, institution, or induction[9]. This is said to have been antiently the only way of conferring ecclesiastical benefices in England; the method of institution by the bishop not being established more early than the time of arch-bishop Becket in the reign of Henry II[10]. And therefore though pope Alexander III[11], in a letter to Becket, severely inveighs against the prava consuetudo, as he calls it, of investiture conferred by the patron only, this however shews what was then the common usage. Others contend, that the claim of the bishops to institution is as old as the first planting of christianity in this island; and in proof of it they allege a letter from the English nobility, to the pope in the reign of Henry the third, recorded by Matthew Paris[12], which speaks of presentation to the bishop as a thing immemorial. The truth seems to be, that, where the benefice was to be conferred on a mere layman, he was first presented to the bishop, in order to receive ordination, who was at liberty to examine and refuse him; but where the clerk was already in orders, the living was usually vested in him by the sole donation of the patron; till about the middle of the twelfth century, when the pope and his bishops endeavoured to introduce a kind of feodal dominion over ecclesiastical benefices, and, in consequence of that, began to claim and exercise the right of institution universally, as a species of spiritual investiture.
However this may be, if, as the law now stands, the true patron once waives this privilege of donation, and presents to the bishop, and his clerk is admitted and instituted, the advowson is now become for ever presentative, and shall never be donative any more[13]. For these exceptions to general rules, and common right, are ever looked upon by the law in an unfavourable view, and construed as strictly as possible. If therefore the patron, in whom such peculiar right resides, does once give up that right, the law, which loves uniformity, will interpret it to be done with an intention of giving it up for ever; and will thereupon reduce it to the standard of other ecclesiastical livings.
II. A second species of incorporeal hereditaments is that of tithes; which are defined to be the tenth part of the increase, yearly arising and renewing from the profits of lands, the stock, upon lands, and the personal industry of the inhabitants: the first species being usually called predial, as of corn, grass, hops, and wood[14]; the second mixed, as of wool, milk, pigs, &c[15], consisting of natural products, but nurtured and preserved in part by the care of man; and of these the tenth must be paid in gross: the third personal, as of manual occupations, trades, fisheries, and the like; and of these only the tenth part of the clear gains and profits is due[16].
It is not to be expected from the nature of these general commentaries, that I should particularly specify, what things are tithable, and what not, the time when, or the manner and proportion in which, tithes are usually due. For this I must refer to such authors as have treated the matter in detail: and shall only observe, that, in general, tithes are to be paid for every thing that yields an annual increase, as corn, hay, fruit, cattle, poultry, and the like; but not for any thing that is of the substance of the earth, or is not of annual increase, as stone, lime, chalk, and the like: nor for creatures that are of a wild nature, or ferae naturae, as deer, hawks, &c, whose increase, so as to profit the owner, is not annual, but casual[17]. It will rather be our business to consider, 1. The original of the right of tithes. 2. In whom that right at present subsists. 3. Who may be discharged, either totally or in part, from paying them.
- As to their original. I will not put the title of the clergy to tithes upon any divine right ; though such a right certainly commenced, and I believe as certainly ceased, with the Jewish theocracy. Yet an honourable and competent maintenance for the ministers of the gospel is, undoubtedly, jure divino; whatever the particular mode of that maintenance may be. For, besides the positive precepts of the new testament, natural reason will tell us, that an order of men, who are separated from the world, and excluded from other lucrative professions, for the sake of the rest of mankind, have a right to be furnished with the necessaries, conveniences, and moderate enjoyments of life, at their expense, for whose benefit they forego the usual means of providing them. Accordingly all municipal laws have provided a liberal and decent maintenance for their national priests or clergy: ours in particular have established this of tithes, probably in imitation of the Jewish law: and perhaps, considering the degenerate state of the world in general, it may be more beneficial to the English clergy to found their title on the law of the land, than upon any divine right whatsoever, unacknowleged and unsupported by temporal sanctions.
We cannot precisely ascertain the time when tithes were first introduced into this country. Possibly they were cotemporary with the planting of christianity among the Saxons, by Augustin the monk, about the end of the sixth century. But the first mention of them, which I have met with in any written English law, is in a constitutional decree, made in a synod held A. D. 786[18], wherein the payment of tithes in general is strongly enjoined. This canon, or decree, which at first bound not the laity, was effectually confirmed by two kingdoms of the heptarchy, in their parliamentary conventions of estates, respectively consisting of the kings of Mercia and Northumberland, the bishops, dukes, senators, and people. Which was a few years later than the time that Charlemagne established the payment of them in France[19], and made that famous division of them into four parts; one to maintain the edifice of the church, the second to support the poor, the third the bishop, and the fourth the parochial clergy[20].
The next authentic mention of them is in the foedus Edwardi et Guthruni; or the laws agreed upon between king Guthrun the Dane, and Alfred and his son Edward the elder, successive kings of England, about the year 900. This was a kind of treaty between those monarchs, which may be found at large in the Anglo-Saxon laws[21]; wherein it was necessary, as Guthrun was a pagan, to provide for the subsistence of the christian clergy under his dominion; and, accordingly, we find[22] the payment of tithes not only enjoined, but a penalty added upon non-observance: which law is seconded by those of Athelstan[23], about the year 930. And this is as much as can certainly be traced out, with regard to their legal original.
- We are next to consider the persons to whom they are due. And upon their first introduction (as hath formerly been observed[24]) though every man was obliged to pay tithes in general, yet he might give them to what priests he pleased[25]; which were called arbitrary consecrations of tithes: or he might pay them into the hands of the bishop, who distributed among his diocesan clergy the revenues of the church, which were then in common[26]. But, when dioceses were divided into parishes, the tithes of each parish were allotted to it’s own particular minister; first by common consent, or the appointments of lords of manors, and afterwards by the written law of the land[27].
However, arbitrary consecrations of tithes took place again afterwards, and became in general use till the time of king John[28]. Which was probably owing to the intrigues of the regular clergy, or monks of the Benedictine and other rules, under arch-bishop Dunstan and his successors; who endeavoured to wean the people from paying their dues to the secular or parochial clergy, (a much more valuable set of men than themselves) and were then in hopes to have drawn, by sanctimonious pretences to extraordinary purity of life, all ecclesiastical profits to the coffers of their own societies. And this will naturally enough account for the number and riches of the monasteries and religious houses, which were founded in those days, and which were frequently endowed with tithes. For a layman, who was obliged to pay his tithes somewhere, might think it good policy to erect an abbey, and there pay them to his own monks; or grant them to some abbey already erected; since for this dotation, which really cost the patron little or nothing, he might, according to the superstition of the times, have masses for ever sung for his soul. But, in process of years, the income of the poor laborious parish priests being scandalously reduced by these arbitrary consecrations of tithes, it was remedied by pope Innocent the third[29] about the year 1200 in a decretal epistle, sent to the arch-bishop of Canterbury, and dated from the palace of Lateran: which has occasioned sir Henry Hobart and others to mistake it for a decree of the council of Lateran held A. D. 1179, which only prohibited what was called the infeodation of tithes, or their being granted to mere laymen[30]; whereas this letter of pope Innocent to the arch-bishop enjoined the payment of tithes to the parsons of the respective parishes where every man inhabited, agreeable to what was afterwards directed by the same pope in other countries[31]. This epistle, says sir Edward Coke[32], bound not the lay subjects of this realm; but, being reasonable and just (and, he might have added, being correspondent to the antient law) it was allowed of, and so became lex terrae. This put an effectual stop to all the arbitrary consecrations of tithes; except some footsteps which still continue in those portions of tithes, which the parson of one parish hath, though rarely, a right to claim in another: for it is now universally held[33], that tithes are due, of common right, to the parson of the parish, unless there be a special exemption. This parson of the parish, we have formerly seen[34], may be either the actual incumbent, or else the appropriator of the benefice: appropriations being a method of endowing monasteries, which seems to have been devised by the regular clergy, by way of substitution to arbitrary consecrations of tithes[35].
- We observed that tithes are due to the parson of common right, unless by special exemption: let us therefore see, thirdly, who may be exempted from the payment of tithes, and how. Lands, and their occupiers, may be exempted or discharged from the payment of tithes, either in part or totally, first, by a real composition; or, secondly, by custom or prescription.
First, a real composition is when an agreement is made between the owner of the lands, and the parson or vicar, with the consent of the ordinary and the patron, that such lands shall for the future be discharged from payment of tithes, by reason of some land or other real recompense given to the parson, in lieu and satisfaction thereof[36]. This was permitted by law, because it was supposed that the clergy would be no losers by such composition; since the consent of the ordinary, whose duty it is to take care of the church in general, and of the patron, whose interest it is to protect that particular church, were both made necessary to render the composition effectual: and hence have arisen all such compositions as exist at this day by force of the common law. But, experience shewing that even this caution was ineffectual, and the possessions of the church being, by this and other means, every day diminished, the disabling statute 13 Eliz. c. 10. was made; which prevents, among other spiritual persons, all parsons and vicars from making any conveyances of the estates of their churches, other than for three lives or twenty one years. So that now, by virtue of this statute, no real composition made since the 13 Eliz. is good for any longer term than three lives or twenty one years, though made by consent of the patron and ordinary: which has indeed effectually demolished this kind of traffick; such compositions being now rarely heard of, unless by authority of parliament.
Secondly, a discharge by custom or prescription, is where time out of mind such persons or such lands have been, either partially or totally, discharged from the payment of tithes. And this immemorial usage is binding upon all parties, as it is in it’s nature an evidence of universal consent and acquiescence; and with reason supposes a real composition to have been formerly made. This custom or prescription is either de modo decimandi, or de non decimando.
A modus decimandi, commonly called by the simple name of a modus only, is where there is by custom a particular manner of tithing allowed, different from the general law of taking tithes in kind, which are the actual tenth part of the annual increase. This is sometimes a pecuniary compensation, as twopence an acre for the tithe of land: sometimes it is a compensation in work and labour, as that the parson shall have only the twelfth cock of hay, and not the tenth, in consideration of the owner’s making it for him: sometimes, in lieu of a large quantity of crude or imperfect tithe, the parson shall have a less quantity, when arrived to greater maturity, as a couple of fowls in lieu of tithe eggs; and the like. Any means, in short, whereby the general law of tithing is altered, and a new method of taking them is introduced, is called a modus decimandi, or special manner of tithing.
To make a good and sufficient modus, the following rules must be observed. 1. It must be certain and invariable[37], for payment of different sums will prove it to be no modus, that is, no original real composition; because that must have been one and the same, from it’s first original to the present time. 2. The thing given, in lieu of tithes, must be beneficial to the parson, and not for the emolument of third persons only[38]: thus a modus, to repair the church in lieu of tithes, is not good, because that is an advantage to the parish only; but to repair the chancel is a good modus, for that is an advantage to the parson. 3. It must be something different from the thing compounded for[39]: one load of hay, in lieu of all tithe hay, is no good modus: for no parson would, bona fide, make a composition to receive less than his due in the same species of tithe; and therefore the law will not suppose it possible for such composition to have existed. 4. One cannot be discharged from payment of one species of tithe, by paying a modus for another[40]. Thus a modus of 1d. for every milch cow will discharge the tithe of milch kine, but not of barren cattle: for tithe is, of common right, due for both; and therefore a modus for one shall never be a discharge for the other. 5. The recompense must be in it’s nature as durable as the tithes discharged by it; that is, an inheritance certain[41]: and therefore a modus that every inhabitant of a house shall pay 4d. a year, in lieu of the owner’s tithes, is no good modus; for posslibly the house may not be inhabited, and then the recompense will be lost. 6. The modus must not be too large, which in law is called a rank modus: as if the real value of the tithes be 60𝑙. per annum, and a modus is suggested of 40𝑙. this modus will not be good; though one of 40s. might have been valid[42]. For, in these cases of prescriptive or customary modus’s, the law supposes an original real composition to have been regularly made; which being lost by length of time, the immemorial usage is admitted as evidence to shew that it once did exist, and that from thence such usage was derived. Now time of memory hath been long ago ascertained by the law to commence from the reign of Richard the first[43] and any custom may be destroyed by evidence of it’s non-existence in any part of the long period from his days to the present: wherefore, as this real composition is supposed to have been an equitable contract, or the full value of the tithes, at the time of making it, if the modus set up is so rank and large, as that it beyond dispute exceeds the value of the tithes in the time of Richard the first, this modus is felo de se and destroys itself. For, as it would be destroyed by any direct evidence to prove it’s non-existence at any time since that aera, so also it is destroyed by carrying in itself this internal evidence of a much later original.
A prescription de non decimando is a claim to be entirely discharged of tithes, and to pay no compensation in lieu of them. Thus the king by his prerogative is discharged from all tithes[44]. So a vicar shall pay no tithes to the rector, nor the rector to the vicar, for ecclesia decimas non solvit ecclesiae[45]. But these privileges are personal to both the king and the clergy; for their tenant or lessee shall pay tithes of the same land, though in their own occupation it is not tithable. And, generally speaking, it is an established rule, that in lay hands, modus de non decimando non valet[46]. But spiritual persons or corporations, as monasteries, abbots, bishops, and the like, were always capable of having their lands totally discharged of tithes, by various ways[47]: as, 1. By real composition: 2. By the pope’s bull of exemption: 3. By unity of possession; as when the rectory of a parish, and lands in the same parish, both belonged to a religious house, those lands were discharged of tithes by this unity of possession: 4. By prescription; having never been hable to tithes, by being always in spiritual hands: 5. By virtue of their order; as the knights templars, cistercians, and others, whose lands were privileged by the pope with a discharge of tithes[48]. Though, upon the dissolution of abbeys by Henry VIII, most of these exemptions from tithes would have fallen with them, and the lands become tithable again; had they not been supported and upheld by the statute 31 Hen. VIII. c. 13. which enacts, that all persons who should come to the possession of the lands of any abbey then dissolved, should hold them free and discharged of tithes, in as large and ample a manner as the abbeys themselves formerly held them. And from this original have sprung all the lands, which, being in lay hands, do at present claim to be tithe-free: for, if a man can shew his lands to have been such abbey lands, and also immemorially discharged of tithes by any of the means before-mentioned, this is now a good prescription de non decimando. But he must shew both these requisites: for abbey lands, without a special ground of discharge, are not discharged of course; neither will any prescription de non decimando avail in total discharge of tithes, unless it relates to such abbey lands.
III. Common, or right of common, appears from it’s very definition to be an incorporeal hereditament: being a profit which a man hath in the land of another; as to feed his beasts, to catch fish, to dig turf, to cut wood, or the like[49]. And hence common is chiefly of four sorts; common of pasture, of piscary, of turbary, and of estovers.
- Common of pasture is a right of feeding one’s beasts on another’s land; for in those waste grounds, which are usually called commons, the property of the soil is generally in the lord of the manor; as in common fields it is in the particular tenants. This kind of common is either appendant, appurtenant, because of vicinage, or in gross[50].
Common appendant is a right, belonging to the owners or occupiers of arable land, to put commonable beasts upon the lord’s waste, and upon the lands of other persons within the same manor. Commonable beasts are either hearts of the plough, or such as manure the ground. This is a matter of most universal right; and it was originally permitted[51], not only for the encouragement of agriculture, but for the necessity of the thing. For, when lords of manors granted out parcels of lands to tenants, for services either done or to be done, these tenants could not plough or manure the land without beasts; these beasts could not be sustained without pasture; and pasture could not be had but in the lord’s wastes, and on the uninclosed fallow grounds of themselves and the other tenants. The law therefore annexed this right of common, as inseparably incident, to the grant of the lands; and this was the original of common appendant: which obtains in Sweden, and the other northern kingdoms, much in the same manner as in England[52]. Common appurtenant is where the owner of land has a right to put in other beasts, besides such as are generally commonable; as hogs, goats, and the like, which neither plough nor manure the ground. This, not arising from the necessity of the thing, like common appendant, is therefore not of common right; but can only be claimed by immemorial usage and prescription[53], which the law esteems sufficient proof of a special grant or agreement for this purpose. Common because of vicinage, or neighbourhood, is where the inhabitants of two townships, which lie contiguous to each other, have usually intercommoned with one another; the beasts of the one straying mutually into the other’s fields, without any molestation from either. This is indeed only a permissive right, intended to excuse what in strictness is a trespass in both, and to prevent a multiplicity of suits: and therefore either township may enclose and bar out the other, though they have intercommoned time out of mind. Neither hath any person of one town a right to put his beasts originally into the other’s common; but if they escape, and stray thither of themselves, the law winks at the trespass[54]. Common in gross, or at large, is such as is neither appendant nor appurtenant to land, but is annexed to a man’s person; being granted to him and his heirs by deed: or it may be claimed by prescriptive right, as by parson of a church, or the like corporation sole. This is a separate inheritance, entirely distinct from any landed property, and may be vested in one who has not a foot of ground in the manor.
All these species, of pasturable common, may be and usually are limited as to number and time; but there are also commons without stint, and which last all the year. By the statute of Merton however, and other subsequent statutes[55], the lord of a manor may enclose so much of the waste as he pleases, for tillage or woodground, provided he leaves common sufficient for such as are entitled thereto. This enclosure, when justifiable, is called in law “approving;” an antient expression signifying the same as “improving[56].” The lord hath the sole interest in the soil; but the interest of the lord and commoner, in the common, are looked upon in law as mutual. They may both bring adlions for damage done, either against strangers, or each other; the lord for the public injury, and each commoner for his private damage[57].
2, 3. Common of piscary is a liberty of fishing in another man’s waters; as common of turbary is a liberty of digging turf upon another’s ground[58]. There is also a common of digging for coals, minerals, stones, and the like. All these bear a resemblance to common of pasture in many respects; though in one point they go much farther: common of pasture being only a right of feeding on the herbage and vesture of the soil, which renews annually; but common of turbary, and the rest, are a right of carrying away the very soil itself.
- Common of estovers (from estoffer, to furnish) is a liberty of taking necessary wood, for the use or furniture of a house or farm, from off another’s estate. The Saxon word, bote, is of the same signification with the French estovers; and therefore house-bote is a sufficient allowance of wood, to repair, or to burn in, the house; which latter is sometimes called fire-bote: plough-bote and cart-bote are wood to be employed in making and repairing all instruments of husbandry: and hay-bote or hedge-bote is wood for repairing of hays, hedges, or fences. These botes or estovers must be reasonable ones; and such any tenant or lessee may take off the land let or demised to him, without waiting for any leave, assignment, or appointment of the lessor, unless he be restrained by special covenant to the contrary[59].
These several species of commons do all originally result from the same necessity as common of pasture; viz. for the maintenance and carrying on of husbandry: common of piscary being given for the sustenance of the tenant’s family; common of turbary and fire-bote for his fuel; and house-bote, plough-bote, cart-bote, and hedge-bote, for repairing his house, his instruments of tillage, and the necessary fences of his grounds.
IV. A fourth species of incorporeal hereditaments is that of ways; or the right of going over another man’s ground, I speak not here of the king’s highways, which lead from town to town; nor yet of common ways, leading from a village into the fields; but of private ways, in which a particular man may have an interest and a right, though another be owner of the soil. This may be grounded on a special permission; as when the owner of the land grants to another a liberty of passing over his grounds, to go to church, to market, or the like: in which case the gift or grant is particular, and confined to the grantee alone; it dies with the person; and, if the grantee leaves the country, he cannot assign over his right to any other; nor can he justify taking another person in his company[60]. A way may be also by prescription; as if all the owners and occupiers of such a farm have immemorially used to cross another’s ground: for this immemorial usage supposes an original grant, whereby a right of way thus appurtenant to land may clearly be created. A right of way may also arise by act and operation of law: for, if a man grants me a piece of ground in the middle of his field, he at the same time tacitly and impliedly gives me a way to come at it; and I may cross his land for that purpose without trespass[61]. For when the law doth give any thing to one, it giveth impliedly whatsoever is necessary for enjoying the same[62]. By the law of the twelve tables at Rome, where a man had the right of way over another’s land, and the road was out of repair, he who had the right of way might go over any part of the land he pleased: which was the established rule in public as well as private ways. And the law of England, in both cases, seems to correspond with the Roman[63].
V. Offices, which are a right to exercise a public or private employment, and to the fees and emoluments thereunto belonging, are also incorporeal hereditaments: whether public, as those of magistrates; or private, as of bailiffs, receivers, and the like. For a man may have an estate in them, either to him and his heirs, or for life, or for a term of years, or during pleasure only: fave only that offices of public trust cannot be granted for a term of years, especially if they concern the administration of justice, for then they might perhaps vest in executors or administrators[64]. Neither can any judicial office be granted in reversion; because, though the grantee may be able to perform it at the time of the grant, yet before the office falls he may become unable and insufficient: but ministerial offices may be so granted[65]; for those may be executed by deputy. Also, by statute 5 and 6 Edw. VI. c. 16. no public office shall be sold, under pain of disability to dispose of or hold it. For the law presumes that he, who buys an office, will by bribery, extortion, or other unlawful means, make his purchase good, to the manifest detriment of the public.
VI. Dignities bear a near relation to offices. Of the nature of these we treated at large in the former book[66]: it will therefore be here sufficient to mention them as a species of incorporeal hereditaments, wherein a man may have a property or estate.
VII. Franchises are a seventh species. Franchise and liberty are used as synonymous terms: and their definition is[67], a royal privilege, or branch of the king’s prerogative, subsisting in the hands of a subject. Being therefore derived from the crown, they must arise from the king’s grant; or, in some cases, may be held by prescription, which, as has been frequently said, presupposes a grant. The kinds of them are various, and almost infinite: I will here briefly touch upon some of the principal; premising only, that they may be vested in either natural persons or bodies politic; in one man, or in many: but the same identical franchise, that has before been granted to one, cannot be bestowed on another; for that would prejudice the former grant[68].
To be a county palatine is a franchise, vested in a number of persons. It is likewise a franchise for a number of persons to be incorporated, and subsist as a body politic, with a power to maintain perpetual succession and do other corporate acts: and each individual member of such corporation is also said to have a franchise or freedom. Other franchises are, to hold a court leet: to have a manor or lordship; or, at least, to have a lordship paramount: to have waifs, wrecks, estrays, treasure-trove, royal-fish, forfeitures, and deodands: to have a court of one’s own, or liberty of holding pleas, and trying causes: to have the cognizance of pleas; which is a still greater liberty, being an exclusive right, so that no other court shall try causes arising within that jurisdiction: to have a bailiwick, or liberty exempt from the sheriff of the county, wherein the grantee only, and his officers, are to execute all process: to have a fair or market; with the right of taking toll, either there or at any other public places, as at bridges, wharfs, and the like; which tolls must have a reasonable cause of commencement, (as in consideration of repairs, or the like) else the franchise is illegal and void[69]: or, lastly, to have a forest, chase, park, warren, or fishery, endowed with privileges of royalty; which species of franchise may require a more minute discussion.
As to a forest: this, in the hands of a subject, is properly the same thing with a chase; being subject to the common law, and not to the forest laws[70]. But a chase differs from a park, in that it is not enclosed, and also in that a man may have a chase in another man’s ground as well as his own; being indeed the liberty of keeping beasts of chase or royal game therein, protected even from the owner of the land, with a power of hunting them thereon. A park is an enclosed chase, extending only over a man’s own grounds. The word park indeed properly signifies any enclosure; but yet it is not every field or common, which a gentleman pleases to surround with a wall or paling, and to stock with a herd of deer, that is thereby constituted a legal park: for the king’s grant, or at least immemorial prescription, is necessary to make it so[71]. Though now the difference between a real park, and such enclosed grounds, is in many respects not very material: only that it is unlawful at common law for any person to kill any beasts of park or chase[72], except such as possess these franchises of forest, chase, or park. Free-warren is a similar franchise, erected for preservation or custody (which the word signifies) of beasts and fowls of warren[73]; which, being ferae naturae, every one had a natural right to kill as he could: but upon the introduction of the forest laws at the Norman conquest, as will be shewn hereafter, these animals being looked upon as royal game and the sole property of our savage monarchs, this franchise of free-warren was invented to protect them; by giving the grantee a sole and exclusive power of killing such game, so far as his warren extended, on condition of his preventing other persons. A man therefore that has the franchise of warren, is in reality no more than a royal game-keeper: but no man, not even a lord of a manor, could by common law justify sporting on another’s soil, or even on his own, unless he had the liberty of free-warren[74]. This franchise is almost fallen into disregard, since the new statutes for preserving the game; the name being now chiefly preserved in grounds that are set apart for breeding hares and rabbets. There are many instances of keen sportsmen in antient times, who have sold their estates, and reserved the free-warren, or right of killing game, to themselves; by which means it comes to pass that a man and his heirs have sometimes free-warren over another’s ground[75]. A free fishery, or exclusive right of fishing in a public river, is also a royal franchise; and is considered as such in all countries where the feodal polity has prevailed[76]: though the making such grants, and by that means appropriating what seems to be unnatural to restrain, the use of running water, was prohibited for the future by king John’s great charter, and the rivers that were fenced in his time were directed to be laid open, as well as the forests to be disafforested[77]. This opening was extended, by the second[78] and third[79] charters of Henry III, to those also that were fenced under Richard I; so that a franchise of free fishery ought now to be at least as old as the reign of Henry II. This differs from a several fishery; because he that has a several fishery must also be the owner of the soil, which in a free fishery is not requisite. It differs also from a common of piscary before-mentioned, in that the free fishery is an exclusive right, the common of piscary is not so: and therefore, in a free fishery, a man has a property in the fish before they are caught; in a common of piscary, not till afterwards[80]. Some indeed have considered a free fishery not as a royal franchise, but merely as a private grant of a liberty to fish in the several fishery of the grantor[81]. But the considering such right as originally a flower of the prerogative, till restrained by magna carta, and derived by royal grant (previous to the reign of Richard I.) to such as now claim it by prescription, may remove some difficulties in respect to this matter, with which our books are embarassed.
VIII. Corodies are a right of sustenance, or to receive certain allotments of victual and provision for one’s maintenance[82]. In lieu of which (especially when due from ecclesiastical persons) a pension or sum of money is sometimes substituted[83]. And these may be reckoned another species of incorporeal hereditaments; though not chargeable on, or issuing from, any corporeal inheritance, but only charged on the person of the owner in respect of such his inheritance. To these may be added,
IX. Annuities, which are much of the same nature; only that these arise from temporal, as the former from spiritual, persons. An annuity is a thing very distinct from a rent-charge, with which it is frequently confounded: a rent-charge being a burthen imposed upon and issuing out of lands, whereas an annuity is a yearly sum chargeable only upon the person of the grantor[84]. Therefore, if a man by deed grant to another the sum of 20𝑙. per annum, without expressing out of what lands it shall issue, no land at all shall be charged with it; but it is a mere personal annuity: which is of so little account in the law, that, if granted to an eleemosynary corporation, it is not within the statutes of mortmain[85]; and yet a man may have a real estate in it, though his security is merely personal.
X. Rents are the last species of incorporeal hereditaments. The word, rent, or render, reditus, signifies a compensation, or return; it being in the nature of an acknowlegement given for the possession of some corporeal inheritance[86]. It is defined to be a certain profit issuing yearly out of lands and tenements corporeal. It must be a profit; yet there is no occasion for it to be, as it usually is, a sum of money: for spurs, capons, horses, corn, and other matters may be rendered, and frequently are rendered, by way of rent[87]. It may also consist in services or manual operations; as, to plough so many acres of ground, to attend the king or the lord to the wars, and the like; which services in the eye of the law are profits. This profit must also be certain; or that which may be reduced to a certainty by either party. It must also issue yearly; though there is no occasion for it to issue every successive year; but it may be reserved every second, third, or fourth year[88]: yet, as it is to be produced out of the profits of lands and tenements, as a recompense for being permitted to hold and enjoy them, it ought to be reserved yearly, because those profits do annually arise and are annually renewed. It must issue out of the thing granted, and not be part of the land or thing itself; wherein it differs from an exception in the grant, which is always of part of the thing granted[89]. It must, lastly, issue out of lands and tenements corporeal; that is, from some inheritance whereunto the owner or grantee of the rent may have recourse to distrein. Therefore a rent cannot be reserved out of an advowson, a common, an office, a franchise, or the like[90]. But a grant of such annuity or sum may operate as a personal contract, and oblige the grantor to pay the money reserved, or subject him to an action of debt[91]; though it doth not affect the inheritance, and is no legal rent in contemplation of law.
Trere are at common law[92] three manner of rents; rent-service, rent-charge, and rent-seck. Rent-service is so called because it hath some corporal service incident to it, as at the least fealty, or the feodal oath of fidelity[93]. For, if a tenant holds his land by fealty, and ten shillings rent; or by the service of ploughing the lord’s land, and five shillings rent; these pecuniary rents, being connected with personal services, are therefore called rent-service. And for these, in case they be behind, or arrere, at the day appointed, the lord may distrein of common right, without reserving any special power of distress; provided he hath in himself the reversion, or future estate of the lands and tenements, after the lease or particular estate of the lessee or grantee is expired[94]. A rent-charge, is where the owner of the rent hath no future interest, or reversion expectant in the land; as where a man by deed maketh over to others his whole estate in fee simple, with a certain rent payable thereout, and adds to the deed a covenant or clause of distress, that if the rent be arrere, or behind, it shall be lawful to distrein for the same. In this case the land is liable to the distress, not of common right, but by virtue of the clause in the deed: and therefore it is called a rent-charge, because in this manner the land is charged with a distress for the payment of it[95]. Rent-seck, reditus siccus, or barren rent, is in effect nothing more than a rent reserved by deed, but without any clause of distress.
There are also other species of rents, which are reducible to these three. Rents of assise are the certain established rents of the freeholders and antient copyholders of a manor[96], which cannot be departed from or varied. Those of the freeholders are frequently called chief rents, reditus capitales, and both sorts are indifferently denominated quit rents, quieti reditus; because thereby the tenant goes quit and free of all other services. When these payments were reserved in silver or white money, they were antiently called white-rents, or blanch-farms, reditus albi[97]; in contradistinction to rents reserved in work, grain, &c. which were called reditus nigri, or black-maile[98]. Rack-rent is only a rent of the full value of the tenement, or near it. A feefarm-rent is a rent-charge issuing out of an estate in fee; of at least one fourth of the value of the lands, at the time of it’s reservation[99]: for a grant of lands, reserving so considerable a rent, is indeed only letting lands to farm in fee simple instead of the usual methods for life or years.
These are the general divisions of rent; but the difference between them (in respect to the remedy for recovering them) is now totally abolished; and all persons may have the like remedy by distress for rents-seck, rents of assise, and chief-rents, as in case of rents reserved upon lease[100].
Rent is regularly due and payable upon the land from whence it issues, if no particular place is mentioned in the reservation[101]: but, in case of the king, the payment must be either to his officers at the exchequer, or to his receiver in the country[102]. And, strictly, the rent is demandable and payable before the time of sunset of the day whereon it is reserved[103]; though some have thought it not absolutely due till midnight[104].
With regard to the original of rents, something will be said in the next chapter: and, as to distresses and other remedies for their recovery, the doctrine relating thereto, and the several proceedings thereon, these belong properly to the third part of our commentaries, which will treat of civil injuries, and the means whereby they are redressed.
↑ Co. Litt. 19, 20.
↑ Vol. I. pag. 109.
↑ This original of the jus patronatus, by building and endowing the church, appears also to have been allowed in the Roman empire. Nov. 56. t. 12. c. 2. Nov. 118. c. 23.
↑ Co. Litt. 119.
↑ Ibid. 121.
↑ Ibid. 307.
↑ Ibid. 120.
↑ Ibid.
↑ Co. Litt. 344.
↑ Seld. tith. c. 12. §. 2.
↑ Decretal. l. 3. t. 7. c. 3.
↑ A. D. 1239.
↑ Co. Litt. 344. Cro. Jac. 63.
↑ 1 Roll. Abr. 635. 2 Inst. 649.
↑ Ibid.
↑ 1 Roll. Abr. 656.
↑ 2 Inst. 651.
↑ Selden, c. 8. §. 2.
↑ A. D. 778.
↑ Book I. ch. 11. Seld. c. 6. §. 7. Sp. of laws, b. 31. c. 12.
↑ Wilkins, pag. 51.
↑ cap. 6.
↑ cap. 1.
↑ Book I. Introd. §. 4.
↑ 2 Inst. 646. Hob. 296.
↑ Seld. c. 9. §. 4.
↑ LL. Edgar, c. 1 & 2. Canut. c. 11.
↑ Selden. c. 11.
↑ Opera Innocent. III. tom. 2. pag. 452.
↑ Decretal. l. 3. t. 30. c. 19.
↑ Ibid. c. 26.
↑ 2 Inst. 641.
↑ Regist. 46. Hob. 296.
↑ Book I. pag. 372.
↑ In extraparochial places the king, by his royal prerogative, has a right to all the tithes. See book I. pag. 110.
↑ 2 Inst. 490. Regist. 38. 13 Rep. 40.
↑ 1 Keb. 602.
↑ 1 Roll. Abr. 649.
↑ 1 Lev. 179.
↑ Cro. Eliz. 446. Salk. 657.
↑ 2 P. Wms. 462.
↑ 11 Mod. 60.
↑ This rule was adopted, when by the statute of Westm. I. (3 Edw. I. c. 39.) the reign of Richard I. was made the time of limitation in a writ of right. But, since by the statute 32 Hen. VIII. c. 2. this period (in a writ of right) hath been very rationally reduced to sixty years, it seems unaccountable, that the date of legal prescription or memory should still continue to be reckoned from an aera so very antiquated. See 2 Roll. Abr. 269. pl. 16.
↑ Cro. Eliz. 511.
↑ Ibid. 479.
↑ Ibid. 511.
↑ Hob. 309. Cro. Jac. 308.
↑ 2 Rep. 44. Seld. tith. c. 13. §. 2.
↑ Finch, law. 157
↑ Co. Litt. 122.
↑ 2 Inst. 86.
↑ Stiernh. de jure Sueonum. l. 2. c. 6.
↑ Co. Litt. 122.
↑ Co. Litt. 122.
↑ 20 Hen. III. c. 4. 29 Geo. II. c. 36. and 31 Geo. II. c 41.
↑ 2 Inst. 474.
↑ 9 Rep. 113.
↑ Co. Litt. 122.
↑ Co. Litt. 41.
↑ Finch. law. 31.
↑ Ibid. 63.
↑ Co. Litt. 56.
↑ Lord Raym. 725. 1 Brownl. 212. 2 Show. 28. 1 Jon. 297.
↑ 9 Rep. 97.
↑ 11 Rep. 4.
↑ See book I. ch. 12.
↑ Finch. L. 164.
↑ 2 Roll. Abr. 191. Keilw. 196.
↑ 2 Inst. 220.
↑ 4 Inst. 314.
↑ Co. Litt. 233. 2 Inst. 199. 11 Rep. 86.
↑ These are properly buck, doe, fox, martin, and roe; but in a common and legal sense extend likewise to all the beasts of the forest: which, besides the other, are reckoned to be hart, hind, hare, boar, and wolf, and in a word, all wild beasts of venary or hunting. (Co. Litt. 233.)
↑ The beasts are hares, conies, and roes: the fowls are either campestres, as partridges, rails, and quails; or sylvestres, as wood-cocks and pheasants; or aquatiles, as mallards and herons. (Ibid).
↑ Salk. 637.
↑ Bro. Abr. tit. Warren. 3.
↑ Seld. Mar. claus. I. 24. Dufresne. V. 503. Crag. de Jur. feod. II. 8. 15.
↑ cap. 47. edit. Oxon.
↑ cap. 20.
↑ 9 Hen. III. c. 16.
↑ F. N. B. 88. Salk. 637.
↑ 2 Sid. 8.
↑ Finch. L. 162.
↑ See book I. ch. 8.
↑ Co. Litt. 144.
↑ Ibid. 2.
↑ Co. Litt. 144.
↑ Ibid. 142.
↑ Ibid. 47.
↑ Plowd. 13. 8 Rep. 71.
↑ Co. Litt. 144.
↑ Ibid. 47.
↑ Litt. §. 213.
↑ Co. Litt. 142.
↑ Litt. §. 215.
↑ Co. Litt. 143.
↑ 2 Inst. 19.
↑ In Scotland this kind of small payment is called blench-holding, or reditus albae firmae.
↑ 2 Inst. 19.
↑ Co. Litt. 143.
↑ Stat. 4 Geo. II. c. 28.
↑ Co. Litt. 201.
↑ 4 Rep. 73.
↑ Anders. 253.
↑ 1 Saund. 287. 1 Chan. Prec. 555.
Chapter the fourth.
Of the FEODAL SYSTEM.
IT is impossible to understand, with any degree of accuracy, either the civil constitution of this kingdom, or the laws which regulate it’s landed property, without some general acquaintance with the nature and doctrine of feuds, or the feodal law: a system so universally received throughout Europe, upwards of twelve centuries ago, that sir Henry Spelman[1] does not scruple to call it the law of nations in our western world. This chapter will be therefore dedicated to this inquiry. And though, in the course of our observations in this and many other parts of the present book, we may have occasion to search pretty highly into the antiquities of our English jurisprudence, yet surely no industrious student will imagine his time mis-employed, when he is led to consider that the obsolete doctrines of our laws are frequently the foundation, upon which what remains is erected; and that it is impracticable to comprehend many rules of the modern law, in a scholarlike scientifical manner, without having recourse to the antient. Nor will these researches be altogether void of rational entertainment as well as use: as in viewing: the majestic ruins of Rome or Athens, of Balbec or Palmyra, it administers both pleasure and instruction to compare them with the draughts of the same edifices, in their pristine proportion and splendor.
The constitution of feuds[2] had it’s original from the military policy of the northern or Celtic nations, the Goths, the Hunns, the Franks, the Vandals, and the Lombards, who all migrating from the same officina gentium, as Crag very justly entitles it[3], poured themselves in vast quantities into all the regions of Europe, at the declension of the Roman empire. It was brought by them from their own countries, and continued in their respective colonies as the most likely means to secure their new acquisitions: and, to that end, large districts or parcels of land were allotted by the conquering general to the superior officers of the army, and by them dealt out again in smaller parcels or allotments to the inferior officers and most deserving soldiers[4]. These allotments were called feoda, feuds, fiefs, or fees; which last appellation in the northern languages[5] signifies a conditional stipend or reward[6]. Rewards or stipends they evidently were; and the condition annexed to them was, that the possessor should do service faithfully, both at home and in the wars, to him by whom they were given; for which purpose he took the juramentum fidelitatis, or oath of fealty[7]: and in case of the breach of this condition and oath, by not performing the stipulated service, or by deserting the lord in battle, the lands were again to revert to him who granted them[8].
Allotments thus acquired, naturally engaged such as accepted them to defend them: and, as they all sprang from the same right of conquest, no part could subsist independent of the whole; wherefore all givers as well as receivers were mutually bound to defend each others possessions. But, as that could not effectually be done in a tumultuous irregular way, government, and to that purpose subordination, was necessary. Every receiver of lands, or feudatory, was therefore bound, when called upon by his benefactor, or immediate lord of his feud or fee, to do all in his power to defend him. Such benefactor or lord was likewise subordinate to and under the command of his immediate benefactor or superior; and so upwards to the prince or general himself. And the several lords were also reciprocally bound, in their respective gradations, to protect the possessions they had given. Thus the feodal connection was established, a proper military subjection was naturally introduced, and an army of feudatories were always ready enlisted, and mutually prepared to muster, not only in defence of each man’s own several property, but also in defence of the whole, and of every part of this their newly acquired country[9]: the prudence of which constitution was soon sufficiently visible in the strength and spirit, with which they maintained their conquests.
The universality and early use of this feodal plan, among all those nations which in complaisance to the Romans we still call barbarous, may appear from what is recorded[10] of the Cimbri and Teutones, nations of the same northern original as those whom we have been describing, at their first irruption into Italy about a century before the christian aera. They demanded of the Romans, “ut martius populus aliquid sibi terrae daret, quasi stipendium: caeterum, ut vellet, manibus atque armis suis uteretur.” The sense of which may be thus rendered; they desired stipendiary lands (that is, feuds) to be allowed them, to be held by military and other personal services, whenever their lords should call upon them. This was evidently the same constitution, that displayed itself more fully about seven hundred years afterwards; when the Salii, Burgundians, and Franks broke in upon Gaul, the Visigoths on Spain, and the Lombards upon Italy, and introduced with themselves this northern plan of polity, serving at once to distribute, and to protect, the territories they had newly gained. And from hence it is probable that the emperor Alexander Severus[11] took the hint, of dividing lands conquered from the enemy among his generals and victorious soldiery, on condition of receiving military service from them and their heirs for ever.
Scarce had these northern conquerors established themselves in their new dominions, when the wisdom of their constitutions, as well as their personal valour, alarmed all the princes of Europe; that is, of those countries which had formerly been Roman provinces, but had revolted, or were deserted by their old masters, in the general wreck of the empire. Wherefore most, if not all, of them thought it necessary to enter into the lame or a similar plan of policy. For whereas, before, the possessions of their subjects were perfectly allodial; (that is, wholly independent, and held of no superior at all) now they parcelled out their royal territories, or persuaded their subjects to surrender up and retake their own landed property, under the like feodal obligation of military fealty[12]. And thus, in the compass of a very few years, the feodal constitution, or the doctrine of tenure, extended itself over all the western world. Which alteration of landed property, in so very material a point, necessarily drew after it an alteration of laws and customs: so that the feodal laws soon drove out the Roman, which had hitherto universally obtained, but now became for many centuries lost and forgotten; and Italy itself (as some of the civilians, with more spleen than judgment, have expressed it) belluinas, atque ferinas, immanesque Longobardorum leges accepit[13].
But this feodal polity, which was thus by degrees established over all the continent of Europe, seems not to have been received in this part of our island, at least not universally and as a part of the national constitution, till the reign of William the Norman[14]. Not but that it is reasonable to believe, from abundant traces in our history and laws, that even in the times of the Saxons, who were a swarm from what sir William Temple calls the same northern hive, something similar to this was in use: yet not so extensively, nor attended with all the rigour that was afterwards imported by the Normans. For the Saxons were firmly settled in this island, at least as early as the year 600: and it was not till two centuries after, that feuds arrived to their full vigour and maturity, even on the continent of Europe[15].
This introduction however of the feodal tenures into England, by king William, does not seem to have been effected immediately after the conquest, nor by the mere arbitrary will and power of the conqueror; but to have been consented to by the great council of the nation long after his title was established. Indeed from the prodigious slaughter of the English nobility at the battle of Hastings, and the fruitless insurrections of those who survived, such numerous forfeitures had accrued, that he was able to reward his Norman followers with very large and extensive possessions: which gave a handle to the monkish historians, and such as have implicitly followed them, to represent him as having by right of the sword seised on all the lands of England, and dealt them out again to his own favourites. A supposition, grounded upon a mistaken sense of the word conquest; which, in it’s feodal acceptation, signifies no more than acquisition: and this has led many hasty writers into a strange historical mistake, and one which upon the slightest examination will be found to be most untrue. However, certain it is, that the Normans now began to gain very large possessions in England: and their regard for the feodal law, under which they had long lived, together with the king’s recommendation of this policy to the English, as the best way to put themselves on a military footing, and thereby to prevent any future attempts from the continent, were probably the reasons that prevailed to effect it’s establishment here. And perhaps we may be able to ascertain the time of this great revolution in our landed property with a tolerable degree of exactness. For we learn from the Saxon chronicle[16], that in the nineteenth year of king William’s reign an invasion was apprehended from Denmark; and the military constitution of the Saxons being then laid aside, and no other introduced in it’s stead, the kingdom was wholly defenceless: which occasioned the king to bring over a large army of Normans and Bretons, who were quartered upon every landholder, and greatly oppressed the people. This apparent weakness, together with the grievances occasioned by a foreign force, might co-operate with the king’s remonstrances, and the better encline the nobility to listen to his proposals for putting them in a posture of defence. For, as soon as the danger was over, the king held a great council to inquire into the state of the nation[17]; the immediate consequence of which was the compiling of the great survey called domesday-book, which was finished in the next year: and in the latter end of that very year the king was attended by all his nobility at Sarum; where all the principal landholders submitted their lands to the yoke of military tenure, became the king’s vasals, and did homage and fealty to his person[18]. This seems to have been the aera of formally introducing the feodal tenures by law; and probably the very law, thus made at the council of Sarum, is that which is still extant[19], and couched in these remarkable words: “statuimus, ut omnes liberi homines foedere et sacramento affirment, quod intra et extra universum regnum Angliae Wilhelmo regi domino suo fideles esse volunt; terras et honores illius omni fidelitate ubique servare cum eo, et contra inimicos et alienigenas defendere.” The terms of this law (as sir Martin Wright has observed[20]) are plainly feodal: for, first, it requires the oath of fealty, which made in the sense of the feudists every man that took it a tenant or vasal; and, secondly, the tenants obliged themselves to defend their lord’s territories and titles against all enemies foreign and domestic. But what puts the matter out of dispute is another law of the same collection[21], which exacts the performance of the military feodal services, as ordained by the general council. “Omnes comites, et barones, et milites, et servientes, et universi liberi homines totius regni nostri praedicti, habeant et teneant se semper bene in armis et in equis, ut decet et oportet: et sint semper prompti et bene parati ad servitium suum integrum nobis explendum et peragendum cum opus fuerit; secundum quod nobis debent de feodis et tenementis suis de jure facere; et sicut illis statuimus per commune concilium totius regni nostri praedicti.”
This new polity therefore seems not to have been imposed by the conqueror, but nationally and freely adopted hy the general assembly of the whole realm, in the same manner as other nations of Europe had before adopted it, upon the same principle of self-security. And, in particular, they had the recent example of the French nation before their eyes; which had gradually surrendered up all it’s allodial or free lands into the king’s hands, who restored them to the owners as a beneficium or feud, to be held to them and such of their heirs as they previously nominated to the king: and thus by degrees all the allodial estates of France were converted into feuds, and the freemen became the vasals of the crown[22]. The only difference between this change of tenures in France, and that in England, was, that the former was effected gradually, by the consent of private persons; the latter was done at once, all over England, by the common consent of the nation[23].
In consequence of this change, it became a fundamental maxim and necessary principle (though in reality a mere fiction) of our English tenures, “that the king is the universal lord and original proprietor of all the lands in his kingdom[24]; and that no man doth or can possess any part of it, but what has mediately or immediately been derived as a gift from him, to be held upon feodal services.” For, this being the real case in pure, original, proper feuds, other nations who adopted this system were obliged to act upon the same supposition, as a substruction and foundation of their new polity, though the fact was indeed far otherwise. And indeed by thus consenting to the introduction of feodal tenures, our English ancestors probably meant no more than to put the kingdom in a state of defence by establishing a military system; and to oblige themselves (in respect of their lands) to maintain the king’s title and territories, with equal vigour and fealty, as if they had received their lands from his bounty upon these express conditions, as pure, proper, beneficiary feudatories. But, whatever their meaning was, the Norman interpreters, skilled in all the niceties of the feodal constitutions, and well understanding the import and extent of the feodal terms, gave a very different construction to this proceeding; and thereupon took a handle to introduce not only the rigorous doctrines which prevailed in the duchy of Normandy, but also such fruits and dependencies, such hardships and services, as were never known to other nations[25]; as if the English had in fact, as well as theory, owed every thing they had to the bounty of their sovereign lord.
Our ancestors therefore, who were by no means beneficiaries, but had barely consented to this fiction of tenure from the crown, as the basis of a military discipline, with reason looked upon these deductions as grievous impositions, and arbitrary conclusions from principles that, as to them, had no foundation in truth[26]. However, this king, and his son William Rufus, kept up with a high hand all the rigours of the feodal doctrines: but their successor, Henry I, found it expedient, when he set up his pretensions to the crown, to promise a restitution of the laws of king Edward the confessor, or antient Saxon system; and accordingly, in the first year of his reign, granted a charter[27], whereby he gave up the greater grievances, but still reserved the fiction of feodal tenure, for the same military purposes which engaged his father to introduce it. But this charter was gradually broken through, and the former grievances were revived and aggravated, by himself and succeeding princes; till in the reign of king John they became so intolerable, that they occasioned his barons, or principal feudatories, to rise up in arms against him: which at length produced the famous great charter at Runing-mead, which, with some alterations, was confirmed by his son Henry III. And, though it’s immunities (especially as altered on it’s last edition by his son[28]) are very greatly short of those granted by Henry I, it was justly esteemed at the time a vast acquisition to English liberty. Indeed, by the farther alteration of tenures that has since happened, many of these immunities may now appear, to a common observer, of much less consequence than they really were when granted: but this, properly considered, will shew, not that the acquisitions under John were small, but that those under Charles were greater. And from hence also arises another inference; that the liberties of Englishmen are not (as some arbitrary writers would represent them) mere infringements of the king’s prerogative, extorted from our princes by taking advantage of their weakness; but a restoration of that antient constitution, of which our ancestors had been defrauded by the art and finesse of the Norman lawyers, rather than deprived by the force of the Norman arms.
Having given this short history of their rise and progress, we will next consider the nature, doctrine, and principal laws of feuds; wherein we shall evidently trace the groundwork of many parts of our public polity, and also the original of such of our own tenures, as were either abolished in the last century, or still remain in force.
The grand and fundamental maxim of all feodal tenure is this; that all lands were originally granted out by the sovereign, and are therefore holden, either mediately or immediately, of the crown. The grantor was called the proprietor, or lord; being he who retained the dominion or ultimate property of the feud or fee: and the grantee, who had only the use and possession, according to the terms of the grant, was stiled the feudatory or vasal, which was only another name for the tenant or holder of the lands; though, on account of the prejudices we have justly conceived against the doctrines that were afterwards grafted on this system, we now use the word vasal opprobriously, as synonymous to slave or bondman. The manner of the grant was by words of gratuitous and pure donation, dedi et concessi; which are still the operative words in our modern infeodations or deeds of feoffment. This was perfected by the ceremony of corporal investiture, or open and notorious delivery of possession in the presence of the other vasals, which perpetuated among them the aera of the new acquisition, at a time when the art of writing was very little known: and therefore the evidence of property was reposed in the memory of the neighbourhood; who, in case of a disputed title, were afterwards called upon to decide the difference, not only according to external proofs, adduced by the parties litigant, but also by the internal testimony of their own private knowlege.
Besides an oath of fealty, or profession of faith to the lord, which was the parent of our oath of allegiance, the vasal or tenant upon investiture did usually homage to his lord; openly and humbly kneeling, being ungirt, uncovered, and holding up his hands both together between those of the lord, who fate before him; and there professing that “he did become his man, from that day forth, of life and limb and earthly honour:” and then he received a kiss from his lord[29]. Which ceremony was denominated homagium, or manhood, by the feudists, from the dated form of words, devenio vester homo[30].
When the tenant had thus professed himself to be the man of his superior or lord, the next consideration was concerning the service, which, as such, he was bound to render, in recompense for the land he held. This, in pure, proper, and original feuds, was only twofold: to follow, or do suit to, the lord in his courts in time of peace; and in his armies or warlike retinue, when necessity called him to the field. The lord was, in early times, the legislator and judge over all his feudatories: and therefore the vasals of the inferior lords were bound by their fealty to attend their domestic courts baron[31], (which were instituted in every manor or barony, for doing speedy and effectual justice to all the tenants) in order as well to answer such complaints as might be alleged against themselves, as to form a jury or homage for the trial of their fellow-tenants; and upon this account, in all the feodal institutions both here and on the continent, they are distinguished by the appellation of the peers of the court; pares curtis, or pares curiae. In like manner the barons themselves, or lords of inferior districts, were denominated peers of the king’s court, and were bound to attend him upon summons, to hear causes of greater consequence in the king’s presence and under the direction of his grand justiciary; till in many countries the power of that officer was broken and distributed into other courts of judicature, the peers of the king’s court still reserving to themselves (in almost every feodal government) the right of appeal from those subordinate courts in the last resort. The military branch of service consisted in attending the lord to the wars, if called upon, with such a retinue, and for such a number of days, as were stipulated at the first donation, in proportion to the quantity of the land.
At the first introduction of feuds, as they were gratuitous, so also they were precarious and held at the will of the lord[32], who was the sole judge whether his vasal performed his services faithfully. Then they became certain, for one or more years. Among the antient Germans they continued only from year to year; an annual distribution of lands being made by their leaders in their general councils or assemblies[33]. This was professedly done, lest their thoughts should be diverted from war to agriculture; lest the strong should incroach upon the possessions of the weak; and lest luxury and avarice should be encouraged by the erection of permanent houses, and too curious an attention to convenience and the elegant superfluities of life. But, when the general migration was pretty well over, and a peaceable possession of their new-acquired settelements had introduced new customs and manners; when the fertility of the soil had encouraged the study of husbandry, and an affection for the spots they had cultivated began naturally to arise in the tillers; a more permanent degree of property was introduced, and feuds began now to be granted for the life of the feudatory[34]. But stiil feuds were not yet hereditary; though frequently granted, by the favour of the lord, to the children of the former possessor; till in process of time it became unusual, and was therefore thought hard, to reject the heir, if he were capable to perform the services[35]: and therefore infants, women, and professed monks, who were incapable of bearing arms, were also incapable of succeeding to a genuine feud. But the heir, when admitted to the feud which his ancestor possessed, used generally to pay a fine or acknowlegement to the lord, in horses, arms, money, and the like, for such renewal of the feud: which was called a relief, because it re-established the inheritance, or, in the words of the feodal writers, “incertam et caducam hereditatem relevabat.” This relief was afterwards, when feuds became absolutely hereditary, continued on the death of the tenant, though the original foundation of it had ceased.
For in process of time feuds came by degrees to be universally extended, beyond the life of the first vasal, to his sons, or perhaps to such one of them, as the lord should name; and in this case the form of the donation was strictly observed: for if a feud was given to a man and his sons, all his sons succeeded him in equal portions; and as they died off, their shares reverted to the lord, and did not descend to their children, or even to their surviving brothers, as not being specified in the donation[36]. But when such a feud was given to a man, and his heirs, in general terms, then a more extended rule of succession took place; and when a feudatory died, his male descendants in infinitum were admitted to the succession. When any such descendant, who thus had succeeded, died, his male descendants were also admitted in the first place; and, in defect of them, such of his male collateral kindred as were of the blood or lineage of the first feudatory, but no others. For this was an unalterable maxim in feodal succession, that “none was capable of inheriting a feud, but such as was of the blood of, that is, lineally descended from, the first feudatory[37].” And the descent, being thus confined to males, originally extended to all the males alike; all the sons, without any distinction of primogeniture, succeeding to equal portions of the father’s feud. But this being found upon many accounts inconvenient, (particularly, by dividing the services, and thereby weakening the strength of the feodal union) and honorary feuds (or titles of nobility) being now introduced, which were not of a divisible nature, but could only be inherited by the eldest son[38]; in imitation of these, military feuds (or those we are now describing) began also in most countries to descend according to the same rule of primogeniture, to the eldest son, in exclusion of all the rest[39].
Other qualities of feuds were, that the feudatory could not aliene or dispose of his feud; neither could he exchange, nor yet mortgage, nor even devise it by will, without the consent of the lord[40]. For, the reason of conferring the feud being the personal abilities of the feudatory to serve in war, it was not fit he should be at liberty to transfer this gift, either from himself, or his posterity who were presumed to inherit his valour, to others who might prove less able. And, as the feodal obligation was looked upon as reciprocal, the feudatory being entitled to the lord’s protection, in return for his own fealty and service; therefore the lord could no more transfer his seignory or protection without consent of his vasal, than the vasal could his feud without consent of his lord[41]: it being equally unreasonable, that the lord should extend his protection to a person to whom he had exceptions, and that the vasal should owe subjection to a superior not of his own choosing.
These were the principal, and very simple, qualities of the genuine or original feuds; being then all of a military nature, and in the hands of military persons: though the feudatories, being under frequent incapacities of cultivating and manuring their own lands, soon found it necessary to commit part of them to inferior tenants; obliging them to such returns in service, corn, cattle, or money, as might enable the chief feudatories to attend their military duties without distraction: which returns, or reditus, were the original of rents. And by this means the feodal polity was greatly extended; these inferior feudatories (who held what are called in the Scot laws “rere-fiefs”) being under similar obligations of fealty, to do suit of court, to answer the stipulated renders or rent-service, and to promote the welfare of their immediate superiors or lords[42]. But this at the same time demolished the antient simplicity of feuds; and an inroad being once made upon their constitution, it subjected them, in a course of time, to great varieties and innovations. Feuds came to be bought and sold, and deviations were made from the old fundamental rules of tenure and succession; which were held no longer sacred, when the feuds themselves no longer continued to be purely military. Hence these tenures began now to be divided into feoda propria et impropria, proper and improper feuds; under the former of which divisions were comprehended such, and such only, of which we have before spoken; and under that of improper or derivative feuds were comprized all such as do not fall within the other description: such, for instance, as were originally bartered and sold to the feudatory for a price; such as were held upon base or less honourable services, or upon a rent, in lieu of military service; such as were in themselves alienable, without mutual licence; and such as might descend indifferently either to males or females. But, where a difference was not expressed in the creation, such new-created feuds did in all other respects follow the nature of an original, genuine, and proper feud[43].
But as soon as the feodal system came to be considered in the light of a civil establishment, rather than as a military plan, the ingenuity of the same ages, which perplexed all theology with the subtilty of scholastic disquisitions, and bewildered philosophy in the mazes of metaphyfical jargon, began also to exert it’s influence on this copious and fruitful subject: in pursuance of which, the most refined and oppressive consequences were drawn from what originally was a plan of simplicity and liberty, equally beneficial to both lord and tenant, and prudently calculated for their mutual protection and defence. From this one foundation, in different countries of Europe, very different superstructures have been raised: what effect it has produced on the landed property of England will appear in the following chapters.
↑ of parliaments. 57.
↑ See Spelman of feuds, and Wright of tenures, per tot.
↑ De jure feod. 19, 20.
↑ Wright. 7.
↑ Spelm. Gl. 216.
↑ Pontoppidan in his history of Norway (page 290) observes, that in the northern languages odh signifies proprietas and all totum. Hence he derives the odhal right in those countries; and hence too perhaps is derived the udal right in Finland, &c. (See Mac Doual. Inst. part. 2.) Now the transposition of these northern syllables, allodh, will give us the true etymology of the allodium, or absolute property of the feudists; as, by a similar combination of the latter syllable with the word fee (which signifies, we have seen, a conditinal reward or stipend) feeodh or feodum will denote stipendiary property.
↑ See this oath explained at large in Feud. l. 2. t. 7.
↑ Feud. l. 2. t. 24.
↑ Wright. 8.
↑ L. Florus. l. 3. c. 3.
↑ “Sola, quae de hostibus capta sunt, limitaneis ducibus et militibus donavit; ita ut eorum ita essent, si haeredes illorum militarent, nec unquam ad privatos pertinerent: dicens attentius illos militaturos, si etiam sua rura defenderent. Addidit sane his et animalia et servos, ut possent colere quod acceperant; ne per inopiam hominum vel per senectutem disererentur rura vicina barbariae, quod turpissimum ille ducebat.” (Æl. Lamprid. in vita Alex. Severi.)
↑ Wright. 10.
↑ Gravin. Orig. l. 1. §. 139.
↑ Spelm. Gloss. 218. Bract. l. 2. c. 16. §. 7.
↑ Crag. l. 1. t. 4.
↑ A. D. 1085.
↑ Rex tenuit magnum concilium, et graves sermones habuit cum suis proceribus de hac terra, quo modo incoleretur, et a quibus hominibus, Chron. Sax. ibid.
↑ Omnes praedia tenentes, quotquot essent notae melioris per lotam Angliam, ejus homines facti sunt, it omnes se illi subdidere, ejusque facti sunt vasalli, ac ei fidelitatis juramenta praestiterunt, se centra alios quoscunque illi fidos futuros. Chron. Sax. A. D. 1086.
↑ cap. 52. Wilk. 228.
↑ Tenures. 66.
↑ cap. 58. Wilk. 228.
↑ Montesq. Sp. L. b. 31. c. 8.
↑ Pharoah thus acquired the dominion of all the lands in Egypt, and granted them out to the Egyptians, reserving an annual render of the fifth part of their value. (Gen. c. 47.)
↑ Tout fuit in luy, et vient de luy al commencement. (M. 24 Edw. III. 65.)
↑ Spelm. of feuds, c. 28.
↑ Wright 81.
↑ LL. Hen. I. c. 1.
↑ 9 Hen. III.
↑ Litt. §. 85.
↑ It was an observation of Dr Arbuthnot, that tradition was no where preserved so pure and incorrupt as among children, whose games and plays are delivered down invariably from one generation to another. (Warburton’s notes on Pope. vi. 134. 8°.) Perhaps it may be thought puerile to observe (in confirmation of this remark) that in one of our antient pastimes (the basilinda of Julius Pollux, Onomastic. l. 9. c. 7.) the ceremonies and language of feodal homage are preserved with great exactness.
↑ Feud. l. 2. t. 55.
↑ Feud. l. 1. t. 1.
↑ Thus Tacitus: (de mor. Germ. c. 26.) “agri ab universis per vices occupantur: arva per annus mutant.” And Caesar yet more fully: (de bell. Gall. l. 6. c. 21.) “Neque quisquam agri modum certum, aut fines proprios habet; sed magistratus et principes, in annos singulos, gentibus et cognationibus hominum qui una coierunt, quantum eis et quo loco visum est, attribuunt agri, atque anno post alio transire cogunt.”
↑ Feud l. 1. t. 1.
↑ Wright. 14.
↑ Wright. 17.
↑ Ibid. 183.
↑ Feud. 2. t. 55.
↑ Wright. 32.
↑ Ibid. 29.
↑ Ibid. 30.
↑ Ibid. 20.
↑ Feud. 2. t. 7.
Chapter the fifth.
Of the antient ENGLISH TENURES.
IN this chapter we shall take a short view of the antient tenures of our English estates, or the manner in which lands, tenements, and hereditaments might have been holden; as the same flood in force, till the middle of the last century. In which we shall easily perceive, that all the particularities, all the seeming and real hardships, that attended those tenures, were to be accounted for upon feodal principles and no other; being fruits of, and deduced from, the feodal policy.
Almost all the real property of this kingdom is by the policy of our laws supposed to be granted by, dependent upon, and holden of some superior lord, by and in consideration of certain services to be rendered to the lord by the tenant or possessor of this property. The thing holden is therefore stiled a tenement, the possessors thereof tenants, and the manner of their possession a tenure. Thus all the land in the kingdom is supposed to be holden, mediately or immediately, of the king; who is stiled the lord paramount, or above all. Such tenants as held under the king immediately, when they granted out portions of their lands to inferior persons, became also lords with respect to those inferior persons, as they were still tenants with respect to the king; and, thus partaking of a middle nature, were called mesne, or middle, lords. So that if the king granted a manor to A, and he granted a portion of the land to B, now B was said to hold of A, and A of the king; or, in other words, B held his lands immediately of A, but mediately of the king. The king therefore was stiled lord paramount; A was both tenant and lord, or was a mesne lord; and B was called tenant paravail, or the lowest tenant; being he who is supposed to make avail, or profit, of the land[1]. In this manner are all the lands of the kingdom holden, which are in the hands of subjects: for, according to sir Edward Coke[2], in the law of England we have not properly allodium; which, we have seen[3], is the name by which the feudists abroad distinguish such estates of the subject, as are not holden of any superior. So that at the first glance we may observe, that our lands are either plainly feuds, or partake very strongly of the feodal nature.
All tenures being thus derived, or supposed to be derived, from the king, those that held immediately under him, in right of his crown and dignity, were called his tenants in capite, or in chief; which was the most honourable species of tenure, but at the same time subjected the tenants to greater and more burthensome services, than inferior tenures did[4]. This distinction ran through all the different sorts of tenure; of which I now proceed to give an account.
- There seem to have subsisted among our ancestors four principal species of lay tenures, to which all others may be reduced: the grand criteria of which were the natures of the several services or renders, that were due to the lords from their tenants. The services, in respect of their quality, were either free or base services; in respect of their quantity and the time of exacting them, were either certain or uncertain. Free services such as were not unbecoming the charadler of a soldier, or a freeman, to perform; as to serve under his lord in the wars, to pay a sum of money, and the like. Base services were such as were fit only for peasants, or persons of a servile rank; as to plough the lord’s land, to make his hedges, to carry out his dung, or other mean employments. The certain services, whether free or base, were such as were stinted in quantity, and could not be exceeded on any pretence; as, to pay a stated annual rent, or to plough such a field for three days. The uncertain depended upon unknown contingencies; as to do military service in person, or pay an assessment in lieu of it, when called upon; or to wind a horn whenever the Scots invaded the realm; which are free services: or to do whatever the lord should command; which is a base or villein service.
From the various combinations of these services have arisen the four kinds of lay tenure which subsisted in England, till the middle of the last century; and three of which subsist to this day. Of these Bracton (who wrote under Henry the third) seems to give the cleared and most compendious account, of any author antient or modern[5]; of which the following is the outline or abstract[6]. “Tenements are of two kinds, frank-tenement and villenage. And, of frank-tenements, some are held freely in consideration of homage and knight-service; others in free-socage with the service of fealty only. And again[7], “of villenages some are pure, and others privileged. He that holds in pure villenage shall do whatsoever is commanded him, and always be bound to an uncertain service. The other kind of villenage is called villein-socage; and these villein-socmen do villein services, but such as are certain and determined.” Of which the sense seems to be as follows: first, where the service was free, but uncertain, as military service with homage, that tenure was called the tenure in chivalry, per servitium militare, or by knight-service. Secondly, where the service was not only free, but also certain, as by fealty only, by rent and fealty, &c, that tenure was called liberum socagium, or free socage. These were the only free holdings or tenements; the others were villenous or servile: as, thirdly, where the service was base in it’s nature, and uncertain as to time and quantity, the tenure was purum villenagium, absolute or pure villenage. Lastly, where the service was base in it’s nature, but reduced to a certainty, this was still villenage, but distinguished from the other by the name of privileged villenage, villenagium privilegiatum; or it might be still called socage (from the certainty of it’s services) but degraded by their baseness into the inferior title of villanum socagium, villein-socage.
- The first, most universal, and esteemed the most honourable species of tenure, was that by knight-service, called in Latin servitium militare, and in law French chivalry, or service de chivaler, answering to the fief d’haubert of the Normans[8], which name is expressly given it by the mirrour[9]. This differed in very few points, as we shall presently see, from a pure and proper feud, being entirely military, and the genuine effect of the feodal establishment in England. To make a tenure by knight-service, a determinate quantity of land was necessary, which was called a knight’s fee, feodum militare; the value of which, not only in the reign of Edward II[10], but also of Henry II[11], and therefore probably at it’s original in the reign of the conqueror, was stated at 20𝑙. per annum; and a certain number of these knight’s fees were requisite to make up a barony. And he who held this proportion of land (or a whole fee) by knight-service, was bound to attend his lord to the wars for forty days in every year, if called upon: which attendance was his reditus or return, his rent or service, for the land he claimed to hold. If he held only half a knight’s fee, he was only bound to attend twenty days, and so in proportion[12]. And there is reason to apprehend, that this service was the whole that our ancestors meant to subject themselves to; the other fruits and consequences of this tenure being fraudulently superinduced, as the regular (though unforeseen) appendages of the feodal system.
This tenure of knight-service had all the marks of a strict and regular feud: it was granted by words of pure donation, dedi et concessi[13]; was transferred by investiture or delivering corporal possession of the land, usually called livery of seisin; and was perfected by homage and fealty. It also drew after it these seven fruits and consequences, as inseparably incident to the tenure in chivalry; viz. aids, relief, primer seisin, wardship, marriage, fines for alienation, and escheat: all which I shall endeavour to explain, and shew to be of feodal original.
- Aids were originally mere benevolences granted by the tenant to his lord, in times of difficulty and distress[14]; but in process of time they grew to be considered as a matter of right, and not of discretion. These aids were principally three: first, to ransom the lord’s person, if taken prisoner; a necessary consequence of the feodal attachment and fidelity; insomuch that the neglect of doing it, whenever it was in the vasal’s power, was, by the strict rigour of the feodal law, an absolute forfeiture of his estate[15]. Secondly, to make the lord’s eldest son a knight; a matter that was formerly attended with great ceremony, pomp, and expense. This aid could not be demanded till the heir was fifteen years old, or capable of bearing arms[16]: the intention of it being to breed up the eldest son, and heir apparent of the seignory, to deeds of arms and chivalry, for the better defence of the nation. Thirdly, to marry the lord’s eldest daughter, by giving her a suitable portion: for daughters’ portions were in those days extremely slender; few lords being able to save much out of their income for this purpose; nor could they acquire money by other means, being wholly conversant in matters of arms; nor, by the nature of their tenure, could they charge their lands with this, or any other incumbrances. From bearing their proportion to these aids no rank or profession was exempted: and therefore even the monasteries, till the time of their dissolution, contributed to the knighting of their founder’s male heir (of whom their lands were holden) and the marriage of his female descendants[17]. And one cannot but observe, in this particular, the great resemblance which the lord and vasal of the feodal law bore to the patron and client of the Roman republic; between whom also there subsisted a mutual fealty, or engagement of defence and proteсtion. With regard to the matter of aids, there were three which were usually raised by the client; viz. to marry the patron’s daughter; to pay his debts; and to redeem his person from captivity[18].
But besides these antient feodal aids, the tyranny of lords by degrees exadted more and more; as, aids to pay the lord’s debts, (probably in imitation of the Romans) and aids to enable him to pay aids or reliefs to his superior lord; from which last indeed the king’s tenants in capite were, from the nature of their tenure, excused, as they held immediately of the king who had no superior. To prevent this abuse, king John’s magna carta[19] ordained, that no aids be taken by the king without consent of parliament, nor in any wise by inferior lords, save only the three antient ones above-mentioned. But this provision was omitted in Henry III’s charter, and the same oppressions were continued till the 25 Edw. I; when the statute called confirmatio chartarum was enacted; which in this respect revived king John’s charter, by ordaining that none but the antient aids should be taken. But though the species of aids was thus restrained, yet the quantity of each aid remained arbitrary and uncertain. King John’s charter indeed ordered, that all aids taken by inferior lords should be reasonable[20]; and that the aids taken by the king of his tenants in capite should be settled by parliament[21]. But they were never completely ascertained and adjusted till the statute Westm. 1. 3 Edw. I. c. 36. which fixed the aids of inferior lords at twenty shillings, or the supposed twentieth part of every knight’s fee, for making the eldest son a knight, or marrying the eldest daughter; and the same was done with regard to the king’s tenants in capite by statute 25 Edw. III. c. 11. The other aid, for ransom of the lord’s person, being not in it’s nature capable of any certainty, was therefore never ascertained.
-
Relief, relevium, was before mentioned as incident to every feodal tenure, by way of fine or composition with the lord for taking up the estate, which was lapsed or fallen in by the death of the last tenant. But, though reliefs had their original while feuds were only life-estates, yet they continued after feuds became hereditary; and were therefore looked upon, very justly, as one of the greatest grievances of tenure: especially when, at the first, they were merely arbitrary and at the will of the lord; so that, if he pleased to demand an exorbitant relief, it was in effect to disinherit the heir[22]. The English ill brooked this consequence of their new adopted policy; and therefore William the conqueror by his laws[23] ascertained the relief, by directing (in imitation of the Danish heriots) that a certain quantity of arms and habiliments of war should be paid by the earls, barons, and vavasours respectively; and, if the latter had no arms, they should pay 100s. William Rufus broke through this composition, and again demanded arbitrary uncertain reliefs, as due by the feodal laws; thereby in effect obliging every heir to new-purchase or redeem his land[24]: but his brother Henry I. by the charter before-mentioned restored his father’s law; and ordained, that the relief to be paid should be according to the law so established, and not an arbitrary redemption[25]. But afterwards, when, by an ordinance in 27 Hen. II. called the assise of arms, it was provided that every man’s armour should descend to his heir, for defence of the realm; and it thereby became impracticable to pay these acknowlegements in arms, according to the laws of the conqueror, the composition was universally accepted of 100s. for every knight’s fee; as we find it ever after established[26]. But it must be remembered, that this relief was only then payable, if the heir at the death of his ancestor had attained his full age of one and twenty years.
-
Primer seisin was a feodal burthen, only incident to the king’s tenants in capite, and not to those who held of inferior or mesne lords. It was a right which the king had, when any of his tenants in capite died seised of a knight’s fee, to receive of the heir (provided he were of full age) one whole year’s profits of the lands, if they were in immediate possession; and half a year’s profits, if the lands were in reversion expectant on an estate for life[27]. This seems to be little more than an additional relief: but grounded upon this feodal reason; that, by the antient law of feuds, immediately upon a death of a vasal the superior was intitled to enter and take seisin or possession of the land, by way of protection against intruders, till the heir appeared to claim it, and receive investiture: and, for the time the lord so held it, he was entitled to take the profits; and, unless the heir claimed within a year and day, it was by the strict law a forfeiture[28]. This practice however seems not to have long obtained in England, if ever, with regard to tenures under inferior lords; but, as to the king’s tenures in capite, this prima seisina was expressly declared, under Henry III and Edward II, to belong to the king by prerogative, in contradistinction to other lords[29]. And the king was intitled to enter and receive the whole profits of the land, till livery was sued; which suit being commonly within a year and day next after the death of the tenant, therefore the king used to take at an average the first fruits, that is to say, one year’s profits of the land[30]. And this afterwards gave a handle to the popes, who claimed to be feodal lords of the church, to claim in like manner from every clergyman in England the first year’s profits of his benefice, by way of primitiae, or first fruits.
-
These payments were only due if the heir was of full age; but if he was under the age of twenty one, being a male, or fourteen, being a female[31], the lord was in titled to the wardship of the heir, and was called the guardian in chivalry. This wardship consisted in having the custody of the body and lands of such heir, without any account of the profits, till the age of twenty one in males, and sixteen in females. For the law supposed the heir-male unable to perform knight-service till twenty one; but as for the female, she was supposed capable at fourteen to marry, and then her husband might perform the service. The lord therefore had no wardship, if at the death of the ancestor the heir-male was of the full age of twenty one, or the heir-female of fourteen: yet, if she was then under fourteen, and the lord once had her in ward, he might keep her so till sixteen, by virtue of the statute of Westm. 1. 3 Edw. I. c. 22. the two additional years being given by the legislature for no other reason but merely to benefit the lord[32].
This wardship, so far as it related to land, though it was not nor could be part of the law of feuds, so long as they were arbitrary, temporary, or for life only; yet, when they became hereditary, and did consequently often descend upon infants, who by reason of their age could neither perform nor stipulate for the services of the feud, does not seem upon feodal principles to have been unreasonable. For the wardship of the land, or custody of the feud, was retained by the lord, that he might out of the profits thereof provide a fit person to supply the infant’s services, till he should be of age to perform them himself. And, if we consider a feud in it’s original import, as a stipend, fee, or reward for actual service, it could not be thought hard that the lord should withhold the stipend, so long as the service was suspended. Though undoubtedly to our English ancestors, where such stipendiary donation was a mere supposition or figment, it carried abundance of hardship; and accordingly it was relieved by the charter of Henry I before-mentioned, which took this custody from the lord, and ordained that the custody, both of the land and the children, should belong to the widow or next of kin. But this noble immunity did not continue many years.
The wardship of the body was a consequence of the wardship of the land; for he who enjoyed the infant’s estate was the properest person to educate and maintain him in his infancy: and also, in a political view, the lord was most concerned to give his tenant a suitable education, in order to qualify him the better to perform those services which in his maturity he was bound to render.
When the male heir arrived to the age of twenty one, or the heir-female to that of sixteen, they might sue out their livery or ousterlemain[33]; that is, the delivery of their lands out of their guardian’s hands. For this they were obliged to pay a fine, namely, half a year’s profits of the land; though this seems expressly contrary to magna carta[34]. However, in consideration of their lands having been so long in ward, they were excused all reliefs, and the king’s tenants also all primer seisins[35]. In order to ascertain the profits that arose to the crown by these fruits of tenure, and to grant the heir his livery, the itinerant justices, or justices in eyre, had it formerly in charge to make inquisition concerning them by a jury of the county[36], commonly called an inquisitio post mortem; which was instituted to enquire (at the death of any man of fortune) the value of his estate, the tenure by which it was holden, and who, and of what age, his heir was; thereby to ascertain the relief and value of the primer seisin, or the wardship and livery accruing to the king thereupon. A manner of proceeding that came in process of time to be greatly abused, and at length an intolerable grievance; it being one of the principal accusations against Empson and Dudley, the wicked engines of Henry VII, that by colour of false inquisitions they compelled many persons to sue out livery from the crown, who by no means were tenants thereunto[37]. And, afterwards, a court of wards and liveries was erected[38], for conducting the same enquiries in a more solemn and legal manner.
When the heir thus came of full age, provided he held a knight’s fee, he was to receive the order of knighthood, and was compellable to take it upon him, or else pay a fine to the king. For, in those heroical times, no person was qualified for deeds of arms and chivalry who had not received this order, which was conferred with much preparation and solemnity. We may plainly discover the footsteps of a similar custom in what Tacitus relates of the Germans, who in order to qualify their young men to bear arms, presented them in a full assembly with a shield and lance; which ceremony, as was formerly hinted[39], is supposed to have been the original of the feodal knighthood[40]. This prerogative, of compelling the vasals to be knighted, or to pay a fine, was expressly recognized in parliament, by the statute de militibus, 1 Edw. II; was exerted as an expedient of raising money by many of our best princes, particularly by Edward VI and queen Elizabeth; but yet was the occasion of heavy murmurs when exerted by Charles I: among whose many misfortunes it was, that neither himself nor his people seemed able to distinguish between the arbitrary stretch, and the legal exertion, of prerogative. However, among the other concessions made by that unhappy prince, before the fatal recourse to arms, he agreed to divest himself of this undoubted flower of his crown, and it was accordingly abolished by statute 16 Car. I. c. 20.
-
But, before they came of age, there was ftill another piece of authority, which the guardian was at liberty to exercise over his infant wards; I mean the right of marriage, (maritagium, as contradistinguished from matrimonium) which in it’s feodal sense signifies the power, which the lord or guardian in chivalry had of disposing of his infant ward in matrimony. For, while the infant was in ward, the guardian had the power of tendering him or her a suitable match, without disparagement, or inequality: which if the infants refused, they forfeited the value of the marriage, valorem maritagii, to their guardian[41]; that is, so much as a jury would assess, or any one would bona fide give to the guardian for such an alliance[42]: and, if the infants married themselves without the guardian’s consent, they forfeited double the value, duplicem valorem maritagii[43]. This seems to have been one of the greatest hardships of our antient tenures. There are indeed substantial reasons why the lord should have the restraint and controll of the ward’s marriage, especially of his female ward; because of their tender years, and the danger of such female ward’s intermarrying with the lord’s enemy[44]. But no tolerable pretence could be assigned why the lord should have the sale, or value, of the marriage. Nor indeed is this claim of strictly feodal original; the most probable account of it seeming to be this: that by the custom of Normandy the lord’s consent was necessary to the marriage of his female-wards[45]; which was introduced into England, together with the rest of the Norman doctrine of feuds: and it is likely that the lords usually took money for such their consent, since in the often-cited charter of Henry the first, he engages for the future to take nothing for his consent; which also he promises in general to give, provided such female ward were not married to his enemy. But this, among other beneficial parts of that charter, being disregarded, and guardians still continuing to dispose of their wards in a very arbitrary unequal manner, it was provided by king John’s great charter, that heirs should be married without disparagement, the next of kin, having previous notice of the contract[46]; or, as it was expressed in the first draught of that charter, ita maritentur ne disparagentur, et per consilium propinquorum de consanguinitate sua[47]. But these provisions in behalf of the relations were omitted in the charter of Henry III; wherein[48] the clause stands merely thus, “haeredes maritentur absque disparagatione;” meaning certainly, by haeredes, heirs female, as there are no traces before this to be found of the lord’s claiming the marriage of heirs male; and as Glanvil[49] expressly confines it to heirs female. But the king and his great lords thenceforward took a handle from the ambiguity of this expression to claim them both, sive sit malculus sive foemina, as Bracton more than once expresses it[50] and also, as nothing but disparagement was restrained by magna carta, they thought themselves at liberty to make all other advantages that they could[51]. And afterwards this right, of selling the ward in marriage or else receiving the price or value of it, was expressly declared by the statute of Merton[52]; which is the first direct mention of it that I have met with, in our own, or in any other law.
-
Another attendant or consequence of tenure by knight-service was that of fines due to the lord for every alienation, whenever the tenant had occasion to make over his land to another. This depended on the nature of the feodal connexion; it not being reasonable nor allowed, as we have before seen, that a feudatory should transfer his lord’s gift to another, and substitute a new tenant to do the service in his own stead, without the consent of the lord: and, as the feodal obligation was considered as reciprocal, the lord also could not alienate his seignory without the consent of his tenant, which consent of his was called an attornment. This restraint upon the lords soon wore away; that upon the tenants continued longer. For, when every thing came in process of time to be bought and sold, the lords would not grant a licence to their tenants to aliene, without a fine being paid; apprehending that, if it was reasonable for the heir to pay a fine or relief on the renovation of his paternal estate, it was much more reasonable that a stranger should make the same acknowlegement on his admission to a newly purchased feud. With us in England, these fines seem only to have been exacted from the king’s tenants in capite, who were never able to aliene without a licence: but, as to common persons, they were at liberty, by magna carta[53], and the statute of quia emptores[54], (if not earlier) to aliene the whole of their estate, to be holden of the same lord, as they themselves held it of before. But the king’s tenants in capite, not being included under the general words of these statutes, could not aliene without a licence: for if they did, it was in antient strictness an absolute forfeiture of the lands[55]; though some have imagined otherwise. But this severity was mitigated by the statute 1 Edw. III. c. 12. which ordained, that in such case the lands should not be forfeited, but a reasonable fine be paid to the king. Upon which statute it was settled, that one third of the yearly value should be paid for a licence of alienation; but, if the tenant presumed to aliene without a licence, a full year’s value should be paid[56].
-
The last consequence of tenure in chivalry was escheat; which is the determination of the tenure, or dissolution of the mutual bond between the lord and tenant, from the extinction of the blood of the latter by either natural or civil means: if he died without heirs of his blood, or if his blood was corrupted and stained by commission of treason or felony; whereby every inheritable quality was intirely blotted out and abolished. In such cases the land escheated, or fell back, to the lord of the fee[57]; that is, the tenure was determined by breach of the original condition, expressed or implied in the feodal donation. In the one case, there were no heirs subsisting of the blood of the first feudatory or purchaser, to which heirs alone the grant of the feud extended: in the other, the tenant, by perpetrating an atrocious crime, shewed that he was no longer to be trusted as a vasal, having forgotten his duty as a subject; and therefore forfeited his feud, which he held under the implied condition that he should not be a traitor or a felon. The consequence of which in both cases was, that the gift, being determined, resulted back to the lord who gave it[58].
These were the principal qualities, fruits, and consequences of the tenure by knight-service: a tenure, by which the greatest part of the lands in this kingdom were holden, and that principally of the king in capite, till the middle of the last century; and which was created, as sir Edward Coke expressly testifies[59], for a military purpose; viz. for defence of the realm by the king’s own principal subjects, which was judged to be much better than to trust to hirelings or foreigners. The description here given is that of knight-service proper; which was to attend the king in his wars. There were also some other species of knight-service; so called, though improperly, because the service or render was of a free and honourable nature, and equally uncertain as to the time of rendering as that of knight-service proper, and because they were attended with similar fruits and consequences. Such was the tenure by grand serjeanty, per magnum servitium, whereby the tenant was bound, instead of serving the king generally in his wars, to do some special honorary service to the king in person; as to carry his banner, his sword, or the like; or to be his butler, champion, or other officer at his coronation[60]. It was in most other respects like knight-service[61]; only he was not bound to pay aid[62], or escuage[63]; and, when tenant by knight-service paid five pounds for a relief on every knight’s fee, tenant by grand serjeanty paid one year’s value of his land, were it much or little[64]. Tenure by cornage, which was, to wind a horn when the Scots or other enemies entered the land, in order to warn the king’s subjects, was (like other services of the same nature) a species of grand serjeanty[65].
These services, both of chivalry and grand serjeanty, were all personal, and uncertain as to their quantity or duration. But, the personal attendance in knight-service growing troublesome and inconvenient in many respects, the tenants found means of compounding for it; by first fending others in their stead, and in process of time making a pecuniary satisfaction to the lords in lieu of it. This pecuniary satisfaction at last came to be levied by assessments, at so much for every knight’s fee; and therefore this kind of tenure was called scutagium in Latin, or servitium scuti; scutum being then a well-known denomination of money: and, in like manner it was called, in our Norman French, escuage; being indeed a pecuniary, instead of a military, service. The first time this appears to have been taken was in the 5 Hen. II. on account of his expedition to Toulouse; but it soon came to be so universal, that personal attendance fell quite into disuse. Hence we find in our antient histories that, from this period, when our kings went to war, they levied scutages on their tenants, that is, on all the landholders of the kingdom, to defray their expenses, and to hire troops: and these assessments, in the time of Henry II, seem to have been made arbitrarily and at the king’s pleasure. Which prerogative being greatly abused by his successors, it became matter of national clamour; and king John was obliged to consent, by his magna carta, that no scutage should be imposed without consent of parliament[66]. But this clause was omitted in his son Henry Ill’s charter; where we only find[67], that scutages or escuage should be taken as they were used to be taken in the time of Henry II; that is, in a reasonable and moderate manner. Yet afterwards by statute 25 Edw. I. c. 5 & 6. and many subsequent statutes[68] it was enacted, that the king should take no aids or tasks but by the common assent of the realm. Hence it is held in our old books, that escuage or scutage could not be levied but by consent of parliament[69]; such scutages being indeed the groundwork of all succeeding subsidies, and the land-tax of later times.
Since therefore escuage differed from knight-service in nothing, but as a compensation differs from actual service, knight-service is frequently confounded with it. And thus Littleton[70] must be understood, when he tells us, that tenant by homage, fealty, and escuage was tenant by knight-service: that is, that this tenure (being subservient to the military policy of the nation) was respected[71] as a tenure in chivalry[72]. But as the actual service was uncertain, and depended upon emergences, so it was necessary that this pecuniary compensation should be equally uncertain, and depend on the assessments of the legislature suited to those emergences. For had the escuage been a settled invariable sum, payable at certain times, it had been neither more nor less than a mere pecuniary rent; and the tenure, instead of knight-service, would have then been of another kind, called socage[73], of which we shall speak in the next chapter.
For the present, I have only to observe, that by the degenerating of knight-service, or personal military duty, into escuage, or pecuniary assessments, all the advantages (either promised or real) of the feodal constitution were destroyed, and nothing but the hardships remained. Instead of forming a national militia composed of barons, knights, and gentlemen, bound by their interest, their honour, and their oaths, to defend their king and country, the whole of this system of tenures now tended to nothing else, but a wretched means of raising money to pay an army of occasional mercenaries. In the mean time the families of all our nobility and gentry groaned under the intolerable burthens, which (in consequence of the fiction adopted after the conquest) were introduced and laid upon them by the subtlety and finesse of the Norman lawyers. For, besides the scutages they were liable to in defect of personal attendance, which however were assessed by themselves in parliament, they might be called upon by the king or lord paramount for aids, whenever his eldest son was to be knighted, or his eldest daughter married; not to forget the ransom of his own person. The heir, on the death of his ancestor, if of full age, was plundered of the first emoluments arising from his inheritance, by way of relief and primer seisin; and, if under age, of the whole of his estate during infancy. And then, as sir Thomas Smith very feelingly complains[74], “when he came to his own, after he was out of wardship, his woods decayed, houses fallen down, stock wasted and gone, lands let forth and ploughed to be barren,” to make amends he was yet to pay half a year’s profits as a fine for suing out his livery; and also the price or value of his marriage, if he refused such wife as his lord and guardian had bartered for, and imposed upon him; or twice that value, if he married another woman. Add to this, the untimely and expensive honour of knighthood, to make his poverty more completely splendid. And when by these deductions his fortune was so shattered and ruined, that perhaps he was obliged to fell his patrimony, he had not even that poor privilege allowed him, without paying an exorbitant fine for a licence of alienation.
A slavery so complicated, and so extensive as this, called aloud for a remedy in a nation that boasted of her freedom. Palliatives were from time to time applied by successive acts of parliament, which asswaged some temporary grievances. Till at length the humanity of king James I consented[75] for a proper equivalent to abolish them all; though the plan then proceeded not to effect: in like manner as he had formed a scheme, and began to put it in execution, for removing the feodal grievance of heretable jurisdictions in Scotland[76], which has lince been pursued and effected by the statute 20 Geo. II. c. 43[77]. King James’s plan for exchanging our military tenures seems to have been nearly the same as that which has been since pursued; only with this difference, that, by way of compensation for the loss which the crown and other lords would sustain, an annual feefarm rent should be settled and inseparably annexed to the crown, and allured to the inferior lords, payable out of every knight’s fee within their respective seignories. An expedient, seemingly much better than the hereditary excise, which was afterwards made the principal equivalent for these concessions. For at length the military tenures, with all their heavy appendages, were destroyed at one blow by the statute 12 Car. II. c. 24. which enacts, “that the court of wards and liveries, and all wardships, liveries, primer seisins, and ousterlemains, values and forfeitures of marriages, by reason of any tenure of the king or others, be totally taken away. And that all fines for alienations, tenures by homage, knights-service, and escuage, and also aids for marrying the daughter or knighting the son, and all tenures of the king in capite, be likewise taken away. And that all sorts of tenures, held of the king or others, be turned into free and common socage; save only tenures in frankalmoign, copyholds, and the honorary services (without the slavish part) of grand serjeanty.” A statute, which was a greater acquisition to the civil property of this kingdom than even magna carta itself: since that only pruned the luxuriances that had grown out of the military tenures, and thereby preserved them in vigour; but the statute of king Charles extirpated the whole, and demolished both root and branches.
↑ 2 Inst. 296.
↑ 1 Inst. 1
↑ pag. 47.
↑ In the Germanic constitution, the electors, the bishops, the secular princes, the imperial cities, &c, which hold directly from the emperor, are called the immediate states of the empire; all other landholders being denominated mediate ones. Mod. Un. Hist. xlii. 61.
↑ l. 4. tr. 1. c. 28.
↑ Tenementorum aliud liberum, aliud villenagium. Item, liberorum aliud tenetur libere pro homagio et servitio militari; aliud in libero socagio cum fidelitate tantum. §. 1.
↑ Villenagiorum aliud purum, aliud privilegiatum. Qui tenet in puro villenagio faciet quicquid ei praeceptum fuerit, et semper tenebitur ad incerta. Aliud genus villenagii dicitur villanum socagium; et hujusmodi villani socmanni — villana faciunt servitia, sed certa et determinata. §. 5.
↑ Spelm. Gloss. 219.
↑ c. 2. §. 27.
↑ Stat. de milit. 1 Edw. II. Co. Litt. 69.
↑ Glanvil. l. 9. c. 4.
↑ Litt. §. 95.
↑ Co. Litt. 9.
↑ Auxilia fiunt de gratia et non de jure, — cum dependeant ex gratia tenentium et non ad voluntatem dominorum. Bracton. l. 2. tr. l. c. 16. §. 8.
↑ Feud. l. 2. t. 24.
↑ 2 Inst. 233.
↑ Philips’s life of Pole. I. 223.
↑ Erat autem haec inter utrosque officiorum vicissitudo, — ut clientes ad collocandas senatorum filias de suo conferrent; in aeris alieni dissolutionem gratuitam pecuniam crogarent; et ab hostibus in bello captos redimerent. Paul. Manutius de senatu Romano. c. 1.
↑ cap. 12. 15.
↑ cap. 15.
↑ Ibid. 14.
↑ Wright. 99.
↑ c. 22, 23, 24.
↑ 2 Roll. Abr. 514.
↑ “Haeres non redimet terram suam, sicut faciebat tempore fratris mei, sed legitima et justa relevatione relevabit eam.” (Text. Roffens. cap. 34.)
↑ Glanv. l. 9. c. 4. Litt. §. 112.
↑ Co. Litt. 77.
↑ Feud. l. 2. t. 24.
↑ Stat. Malbr. c. 16. 17 Edw. II. c. 3.
↑ Staundf. Prerog. 12.
↑ Litt. §. 103.
↑ Ibid.
↑ Co. Litt. 77.
↑ 9 Hen. III. c. 3.
↑ Co. Litt. 77.
↑ Hoveden. sub Ric. I.
↑ 4 Inst. 198.
↑ Stat. 32 Hen. VIII. c. 46.
↑ Vol. I. pag. 392.
↑ “In ipso concilio vel principum aliquis, vel pater, vel propinquus, scuto frameaque juvenem ornant. Haec apud illos toga, hic primus juventae honos: ante hoc domus pars videntur; mox reipublicae.” De mor. Germ. cap. 13.
↑ Litt. §. 110.
↑ Stat. Mert. c. 6. Co. Litt. 82.
↑ Litt. §. 110.
↑ Bract. l. 2. c. 37. §. 6.
↑ Gr. Cust. 55.
↑ cap. 6. edit. Oxon.
↑ cap. 3. ibid.
↑ cap. 6.
↑ l. 9. c. 9. & 12. & l. 9. c. 4.
↑ l. 2. c. 38. §. 1.
↑ Wright. 97.
↑ 20 Hen. III. c. 6.
↑ cap. 32.
↑ 18 Edw. I. c. 1.
↑ 2 Inst. 66.
↑ Ibid. 67.
↑ Co. Litt. 13.
↑ Feud. l. 2. t. 86.
↑ 4 Inst. 192.
↑ Litt. §. 153.
↑ Ibid. §. 158.
↑ 2 Inst. 253.
↑ Litt. §. 158.
↑ Ibid. §. 154.
↑ Ibid. §. 156.
↑ Nullum scutagium ponatur in regno nostro, nisi per commune consilium regni nostri. cap. 12.
↑ cap. 37.
↑ See Vol. I. pag. 136.
↑ Old Ten. tit. Escuage.
↑ §. 103.
↑ Wright. 122.
↑ Pro feodo militari reputatur. Flet. l. 2. c. 14. §. 7.
↑ Litt. §. 97. 120.
↑ Commonw. l. 3. c. 5.
↑ 4 Inst. 202.
↑ Dalrymp. of feuds. 292.
↑ By another statute of the same year (20 Geo. II. c. 50.) the tenure of wardholding (equivalent to the knight-service of England) is for ever abolished in Scotland.
Chapter the sixth.
Of the modern ENGLISH TENURES.
ALTHOUGH, by the means that were mentioned in the preceding chapter, the oppressive or military part of the feodal constitution was happily done away, yet we are not to imagine that the constitution itself was utterly laid aside, and a new one introduced in it’s room; since by the statute 12 Car. II. the tenures of socage and frankalmoign, the honorary services of grand serjeanty, and the tenure by copy of court roll were reserved; nay all tenures in general, except frankalmoign, grand serjeanty, and copyhold, were reduced to one general species of tenure, then well known and subsisting, called free and common socage. And this, being sprung from the same feodal original as the rest, demonstrates the necessity of fully contemplating that antient system; since it is that alone, to which we can recur to explain any seeming, or real, difficulties, that may arise in our present mode of tenure.
The military tenure, or that by knight-service, consisted of what were reputed the most free and honourable services; but which in their nature were unavoidably uncertain in respect to the time of their performance. The second species of tenure, or free-socage, consisted also of free and honourable services; but such as were liquidated and reduced to an absolute certainty. And this tenure not only subsists to this day, but has in a manner absorbed and swallowed up (since the statute of Charles the second) almost every other species of tenure. And to this we are next to proceed.
II. Socage, in it’s most general and extensive signification, seems to denote a tenure by any certain and determinate service. And in this sense it is by our antient writers constantly put in opposition to chivalry, or knight-service, where the render was precarious and uncertain. Thus Bracton[1]; if a man holds by a rent in money, without any escuage or serjeanty, “id tenementum dici potest socagium:” but if you add thereto any royal service, or escuage to any, the smallest, amount, “illud did poterit feodum militare.” So too the author of Fleta[2]; “ex donationibus servitia militaria vel magnae serjantiae non continentibus, oritur nobis quoddam nomen generale, quod est socagium.” Littleton also[3] defines it to be, where the tenant holds his tenement of the lord by any certain service, in lieu of all other services; so that they be not services of chivalry, or knight-service. And therefore afterwards[4] he tells us, that whatsoever is not tenure in chivalry is tenure in socage: in like manner as it is defined by Finch[5], a tenure to be done out of war. The service must therefore be certain, in order to denominate it socage; as to hold by fealty and 20s. rent; or, by homage, fealty, and 20s. rent; or, by homage and fealty without rent; or, by fealty and certain corporal service, as ploughing the lord’s land for three days; or, by fealty only without any other service: for all these are tenures in socage[6].
But socage, as was hinted in the last chapter, is of two sorts: free-socage, where the services are not only certain, but honourable; and villein-socage, where the services, though certain, are of a baser nature. Such as hold by the former tenure are called in Glanvil[7], and other subsequent authors, by the name of liberi sokemanni, or tenants in free-socage. Of this tenure we are first to speak; and this, both in the nature of it’s service, and the fruits and consequences appertaining thereto, was always by much the most free and independent species of any. And therefore I cannot but assent to Mr Somner’s etymology of the word[8]; who derives it from the Saxon appellation, soc, which signifies liberty or privilege, and, being joined to a usual termination, is called socage, in Latin socagium; signifying thereby a free or privileged tenure[9]. This etymology seems to be much more just than that of our common lawyers in general, who derive it from soca, an old Latin word denoting (as they tell us) a plough: for that in antient time this socage tenure consisted in nothing else but services of husbandry, which the tenant was bound to do to his lord, as to plough, sow, or reap for him; but that, in process of time, this service was changed into an annual rent by consent of all parties, and that, in memory of it’s original, it still retains the name of socage or plough-service[10]. But this by no means agrees with what Littleton himself tells us[11], that to hold by fealty only, without paying any rent, is tenure in socage; for here is plainly no commutation for plough-service. Besides, even services, confessedly of a military nature and original, (as escuage itself, which while it remained uncertain was equivalent to knight-service) the instant they were reduced to a certainty changed both their name and nature, and were called socage[12]. It was the certainty therefore that denominated it a socage tenure; and nothing sure could be a greater liberty or privilege, than to have the service ascertained, and not left to the arbitrary calls of the lord, as in the tenures of chivalry. Wherefore also Britton, who describes socage tenure under the name of fraunke ferme[13], tells us, that they are “lands and tenements, whereof the nature of the fee is changed by feoffment out of chivalry for certain yearly services, and in respect whereof neither homage, ward, marriage, nor relief can be demanded.” Which leads us also to another observation, that, if socage tenures were of such base and servile original, it is hard to account for the very great immunities which the tenants of them always enjoyed; so highly superior to those of the tenants by chivalry, that it was thought, in the reigns of both Edward I and Charles II, a point of the utmost importance and value to the tenants, to reduce the tenure by knight-service to fraunke ferme or tenure by socage. We may therefore, I think, fairly conclude in favour of Somner’s etymology, and the liberal extraction of the tenure in free socage, against the authority even of Littleton himself.
Taking this then to be the meaning of the word, it seems probable that the socage tenures were the relics of Saxon liberty, retained by such persons, as had neither forfeited them to the king, nor been obliged to exchange their tenure for the more honourable, as it was called, but at the same time more burthensome, tenure of knight-service. This is peculiarly remarkable in the tenure which prevails in Kent, called gavelkind, which is generally acknowleged to be a species of socage tenure[14]; the preservation whereof inviolate from the innovations of the Norman conqueror is a fact universally known. And those who thus preserved their liberties were said to hold in free and common socage.
As therefore the grand criterion and distinguishing mark of this species of tenure are the having it’s renders or services ascertained, it will include under it all other methods of holding free lands by certain and invariable rents and duties: and, in particular, petit serjeanty, tenure in burgage, and gavelkind.
We may remember, that by the statute 12 Car. II. grand serjeanty is not itself totally abolished, but only the slavish appendages belonging to it; for the honorary services (such as carrying the king’s sword or banner, officiating as his butler, carver, &c, at the coronation) are still reserved. Now petit serjeanty bears a great resemblance to grand serjeanty; for as the one is a personal service, so the other is a rent or render, both tending to some purpose relative to the king’s person. Petit serjeanty, as defined by Littleton[15], consists in holding lands of the king by the service of rendering to him annually some small implement of war, as a bow, a sword, a lance, an arrow, or the like. This, he says[16], is but socage in effect; for it is no personal service, but a certain rent: and, we may add, it is clearly no predial service, or service of the plough, but in all respects liberum et commune socagium; only, being held of the king, it is by way of eminence dignified with the title of parvum servitium regis, or petit serjeanty. And magna carta respects it in this light, when it enacts[17], that no wardship of the lands or body shall be claimed by the king in virtue of a tenure by petit serjeanty.
Tenure in burgage is described by Glanvil[18], and is expressly said by Littleton[19], to be but tenure in socage; and it is where the king or other person is lord of an antient borough, in which the tenements are held by a rent certain[20]. It is indeed only a kind of town socage; as common socage, by which other lands are holden, is usually of a rural nature. A borough, as we have formerly seen, is distinguished from other towns by the right of sending members to parliament; and, where the right of election is by burgage tenure, that alone is a proof of the antiquity of the borough. Tenure in burgage therefore, or burgage tenure, is where houses, or lands which were formerly the scite of houses, in an antient borough, are held of some lord in common socage, by a certain established rent. And these seem to have withstood the shock of the Norman encroachments principally on account of their insignificancy, which made is not worth while to compel them to an alteration of tenure; as an hundred of them put together would scarce have amounted to a knight’s fee. Besides, the owners of them, being chiefly artificers and persons engaged in trade, could not with any tolerable propriety be put on such a military establishment, as the tenure in chivalry was. And here also we have again an instance, where a tenure is confessedly in socage, and yet could not possibly have ever been held by plough-service; since the tenants must have been citizens or burghers, the situation frequently a walled town, the tenement a single house; so that none of the owners was probably master of a plough, or was able to use one, if he had it. The free socage therefore, in which these tenements are held, seems to be plainly a remnant of Saxon liberty; which may also account for the great variety of customs, affecting these tenements so held in antient burgage: the principal and most remarkable of which is that called Borough-English, so named in contradistinction as it were to the Norman customs, and which is taken notice of by Glanvil[21], and by Littleton[22]; viz. that the youngest son, and not the eldest, succeeds to the burgage tenement on the death of his father. For which Littleton[23] gives this reason; because the youngest son, by reason of his tender age, is not so capable as the rest of his brethren to help himself. Other authors[24] have indeed given a much stranger reason for this custom, as if the lord of the fee had antiently a right to break the seventh commandment with his tenant’s wife on her wedding night; and that therefore the tenement descended not to the eldest, but the youngest, son; who was more certainly the offspring of the tenant. But I cannot learn that ever this custom prevailed in England, though it certainly did in Scotland, (under the name of mercheta or marcheta) till abolished by Malcolm III[25]. And perhaps a more rational account than either may be fetched (though at a sufficient distance) from the practice of the Tartars; among whom, according to father Duhalde, this custom of descent to the youngest son also prevails. That nation is composed totally of shepherds and herdsmen; and the elder sons, as soon as they are capable of leading a pastoral life, migrate from their father with a certain allotment of cattle; and go to seek a new habitation. The youngest son therefore, who continues latest with the father, is naturally the heir of his house, the rest being already provided for. And thus we find that, among many other northern nations, it was the custom for all the sons but one to migrate from the father, which one became his heir[26]. So that possibly this custom, wherever it prevails, may be the remnant of that pastoral state of our British and German ancestors, which Caesar and Tacitus describe. Other special customs there are in burgage tenures; as that the wife shall be endowed of all her husband’s tenements[27], and not of the third part only, as at the common law: and that a man might dispose of his tenements by will[28], which, in general, was not permitted after the conquest till the reign of Henry the eighth; though in the Saxon times it was allowable[29]. A pregnant proof that these liberties of socage tenure were fragments of Saxon liberty.
The nature of the tenure in gavelkind affords us a still stronger argument. It is universally known what struggles the Kentishmen made to preserve their antient liberties; and with how much success those struggles were attended. And as it is principally here that we meet with the custom of gavelkind, (though it was and is to be found in some other parts of the kingdom[30]) we may fairly conclude that this was a part of those liberties; agreeably to Mr Selden’s opinion, that gavelkind before the Norman conquest was the general custom of the realm[31]. The distinguishing properties of this tenure are various: some of the principal are these; 1. The tenant is of age sufficient to aliene his estate by feoffment at the age of fifteen[32]. 2. The estate does not escheat in case of an attainder and execution for felony; their maxim being, “the father to the bough, the son to the plough[33].” 3. In most places he had a power of devising lands by will, before the statute for that purpose was made[34]. 4. The lands descend, not to the eldest, youngest, or any one son only, but to all the sons together[35]; which was indeed antiently the most usual course of descent all over England[36], though in particular places particular customs prevailed. These, among other properties, distinguished this tenure in a most remarkable manner: and yet it is held to be only a species of a socage tenure, modified by the custom of the country; being holden by suit of court and fealty, which is a service in it’s nature certain[37]. Wherefore, by a charter of king John[38], Hubert arch-bishop of Canterbury was authorized to exchange the gavelkind tenures holden of the fee of Canterbury into tenures by knight-service; and by statute 31 Hen. VIII. c. 3. for disgavelling the lands of divers lords and gentlemen in the county of Kent, they are directed to be descendible for the future like other lands, which were never holden by service of socage. Now the immunities which the tenants in gavelkind enjoyed were such, as we cannot conceive should be conferred upon mere ploughmen, or peasants: from all which I think it sufficiently clear, that tenures in free socage are in general of a nobler original than is assigned by Littleton, and after him by the bulk of our common lawyers.
Having thus distributed and distinguished the several species of tenure in free socage, I proceed next to shew that this also partakes very strongly of the feodal nature. Which may probably arise from it’s antient Saxon original; since (as was before observed[39]) feuds were not unknown among the Saxons, though they did not form a part of their military policy, nor were drawn out into such arbitrary consequences as among the Normans. It seems therefore reasonable to imagine, that socage tenure existed in much the same state before the conquest as after; that in Kent it was preserved with a high hand, as our histories inform us it was; and that the rest of the socage tenures dispersed through England escaped the general fate of other property, partly out of favour and affection to their particular owners, and partly from their own insignificancy; since I do not apprehend the number of socage tenures soon after the conquest to have been very considerable, nor their value by any means large; till by successive charters of enfranchisement granted to the tenants, which are particularly mentioned by Britton[40], their number and value began to swell so far, as to make a distinct, and justly envied, part of our English system of tenures.
However this may be, the tokens of their feodal original will evidently appear from a short comparison of the incidents and consequences of socage tenure with those of tenure in chivalry; remarking their agreement or difference as we go along.
-
In the first place, then, both were held of superior lords; of the king as lord paramount, and sometimes of a subject or mesne lord between the king and the tenant.
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Both were subject to the feodal return, render, rent, or service, of some sort or other, which arose from a supposition of an original grant from the lord to the tenant. In the military tenure, or more proper feud, this was from it’s nature uncertain; in socage, which was a feud of the improper kind, it was certain, fixed, and determinate, (though perhaps nothing more than bare fealty) and so continues to this day.
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Both were, from their constitution, universally subject (over and above all other renders) to the oath of fealty, or mutual bond of obligation between the lord and tenant[41]. Which oath of fealty usually draws after it suit to the lord’s court. And this oath every lord, of whom tenements are holden at this day, may and ought to call upon his tenants to take in his court baron; if it be only for the reason given by Littleton[42], that if it be neglected, it will by long continuance of time grow out of memory (as doubtless it frequently has) whether the land be holden of the lord or not; and so he may lose his seignory, and the profit which may accrue to him by escheats and other contingences[43].
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The tenure in socage was subject, of common right, to aids for knighting the son and marrying the eldest daughter[44]: which were fixed by the statute Westm. 1. c. 36. at 20s. for every 20𝑙. per annum so held; as in knight-service. These aids, as in tenure by chivalry, were originally mere benevolences, though afterwards claimed as matter of right; but were all abolished by the statute 12 Car. II.
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Relief is due upon socage tenure, as well as upon tenure in chivalry: but the manner of taking it is very different. The relief on a knight’s fee was 5𝑙. or one quarter of the supposed value of the land; but a socage relief is one year’s rent or render, payable by the tenant to the lord, be the same either great or small[45]: and therefore Bracton[46] will not allow this to be properly a relief, but quaedam praestatio loco relevii in recognitionem domini. So too the statute 28 Edw. I. c. 1. declares, that a free sokeman shall give no relief, but shall double his rent after the death of his ancestor, according to that which he hath used to pay his lord, and shall not be grieved above measure. Reliefs in knight-service were only payable, if the heir at the death of his ancestor was of full age: but in socage they were due, even though the heir was under age, because the lord has no wardship over him[47]. The statute of Charles II reserves the reliefs incident to socage tenures; and therefore, wherever lands in fee simple are holden by a rent, relief is still due of common right upon the death of the tenant[48].
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Primer seisin was incident to the king’s socage tenants in capite, as well as to those by knight-service[49]. But tenancy in capite as well as primer seisins, are also, among the other feodal burthens, intirely abolished by the statute.
-
Wardship is also incident to tenure in socage; but of a nature very different from that incident to knight-service. For if the inheritance descend to an infant under fourteen, the wardship of him shall not belong to the lord of the fee; because, in this tenure no military or other personal service being required, there is no occasion for the lord to take the profits, in order to provide a proper substitute for his infant tenant: but his nearest relation (to whom the inheritance cannot descend) shall be his guardian in socage, and have the custody of his land and body till he arrives at the age of fourteen. The guardian must be such a one, to whom the inheritance by no possibility can descend; as was fully explained, together with the reasons for it, in the former book of these commentaries[50]. At fourteen this wardship in socage ceases, and the heir may ouft the guardian, and call him to account for the rents and profits[51]: for at this age the law supposes him capable of chusing a guardian for himself. It was in this particular, of wardship, as also in that of marriage, and in the certainty, of the render or service, that the socage tenures had so much the advantage of the military ones. But as the wardship ceased at fourteen, there was this disadvantage attending it; that young heirs, being left at so tender an age to chuse their own guardians till twenty one, they might make an improvident choice. Therefore, when almost all the lands of the kingdom were turned into socage tenures, the same statute 12 Car. II. c. 24. enacted, that it should be in the power of any father by will to appoint a guardian, till his child should attain the age of twenty one. And, if no such appointment be made, the court of chancery will frequently interpose, to prevent an infant heir from improvidently exposing himself to ruin.
-
Marriage, or the valor maritagii, was not in socage tenure any perquisite or advantage to the guardian, but rather the reverse. For, if the guardian married his ward under the age of fourteen, he was bound to account to the ward for the value of the marriage, even though he took nothing for it, unless he married him to advantage[52]. For the law, in favour of infants, is always jealous of guardians, and therefore in this case it made them account, not only for what they did, but also for what they might, receive on the infant’s behalf; left by some collusion the guardian should have received the value, and not brought it to account: but, the statute having destroyed all values of marriages, this doctrine of course hath ceased with them. At fourteen years of age the ward might have disposed of himself in marriage, without any consent of his guardian, till the late act for preventing clandestine marriages. These doctrines of wardship and marriage in socage tenure were so diametrically opposite to those in knight-service, and so entirely agree with those parts of king Edward’s laws, that were restored by Henry the first’s charter, as might alone convince us that socage was of a higher original than the Norman conquest.
-
Fines for alienations were, I apprehend, due for lands holden of the king in capite by socage tenure, as well as in case of tenure by knight-service: for the statutes that relate to this point, and sir Edward Coke’s comment on them[53], speak generally of all tenants in capite, without making any distinction; though now all fines for alienation are demolished by the statute of Charles the second.
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Escheats are equally incident to tenure in socage, as they were to tenure by knight-service; except only in gavelkind lands, which are (as is before-mentioned) subject to no escheats for felony, though they are to escheats for want of heirs[54].
Thus much for the two grand species of tenure, under which almost all the free lands of the kingdom were holden till the restoration in 1660, when the former was abolished and sunk into the latter: so that lands of both sorts are now holden by the one universal tenure of free and common socage.
The other grand division of tenure, mentioned by Bracton as cited in the preceding chapter, is that of villenage, as contradistinguished from liberum tenementum, or frank tenure. And this (we may remember) he subdivides into two classes, pure, and privileged, villenage: from whence have arisen two other species of our modern tenures.
III. From the tenure of pure villenage have sprung our present copyhold tenures, or tenure by copy of court roll at the will of the lord; in order to obtain a clear idea of which, it will be previously necessary to take a short view of the original and nature of manors.
Manors are in substance as antient as the Saxon constitution, though perhaps differing a little, in some immaterial circumstances, from those that exist at this day[55]: just as we observed of feuds, that they were partly known to our ancestors, even before the Norman conquest. A manor, manerium, a manendo, because the usual residence of the owner, seems to have been a district of ground, held by lords or great personages; who kept in their own hands so much land as was necessary for the use of their families, which were called terrae dominicales, or demesne lands; being occupied by the lord, or dominus manerii, and his servants. The other tenemental lands they distributed among their tenants; which from the different modes of tenure were called and distinguished by two different names. First, book-land, or charter-land, which was held by deed under certain rents and free services, and in effect differed nothing from free socage lands[56]; and from hence have arisen all the freehold tenants which hold of particular manors, and owe suit and service to the same. The other species was called folk-land, which was held by no assurance in writing, but distributed among the common folk or people at the pleasure of the lord, and resumed at his discretion; being indeed land held in villenage, which we shall presently describe more at large. The residue of the manor, being uncultivated, was termed the lord’s waste, and served for public roads, and for common of pasture to the lord and his tenants. Manors were formerly called baronies, as they still are lordships: and each lord or baron was empowered to hold a domestic court, called the court-baron, for redressing misdemesnors and nusances within the manor, and for settling disputes of property among the tenants. This court is an inseparable ingredient of every manor; and if the number of suitors should so fail, as not to leave sufficient to make a jury or homage, that is, two tenants at the least, the manor itself is lost.
Before the statute of quia emptores, 18 Edw. I. the king’s greater barons, who had a large extent of territory held under the crown, granted out frequently smaller manors to inferior persons to be held of themselves; which do therefore now continue to be held under a superior lord, who is called in such cases the lord paramount over all these manors: and his seignory is frequently termed an honour, not a manor, especially if it hath belonged to an antient feodal baron, or hath been at any time in the hands of the crown. In imitation whereof, these inferior lords began to carve out and grant to others still more minute estates, to be held as of themselves, and were so proceeding downwards in infinitum; till the superior lords observed, that by this method of subinfeudation they lost all their feodal profits, of wardships, marriages, and escheats, which fell into the hands of these mesne or middle lords, who were the immediate superiors of the terre-tenant, or him who occupied the land. This occasioned the statute of Westm. 3. or quia emptores, 18 Edw. I. to be made; which directs, that, upon all sales or feoffments of land, the feoffee shall hold the same, not of his immediate feoffor, but of the chief lord of the fee, of whom such feoffor himself held it. And from hence it is held, that all manors existing at this day, must have existed by immemorial prescription; or at least ever since the 18 Edw. I. when the statute of quia emptores was made. For no new manor can have been created since that statute: because it is essential to a manor, that there be tenants who hold of the lord, and that statute enacts, that for the future no subject shall create any new tenants to hold of himself.
Now with regard to the folk-land, or estates held in villenage, this was a species of tenure neither strictly feodal, Norman, or Saxon; but mixed and compounded of them all[57]: and which also, on account of the heriots that usually attend it, may seem to have somewhat Danish in it’s composition. Under the Saxon government there were, as sir William Temple speaks[58], a sort of people in a condition of downright servitude, used and employed in the most servile works, and belonging, both they, their children, and effects, to the lord of the soil, like the rest of the cattle or stock upon it. These seem to have been those who held what was called the folk-land, from which they were removeable at the lord’s pleasure. On the arrival of the Normans here, it seems not improbable, that they, who were strangers to any other than a feodal state, might give some sparks of enfranchisement to such wretched persons as fell to their share, by admitting them, as well as others, to the oath of fealty; which conferred a right of protection, and raised the tenant to a kind of estate superior to downright slavery, but inferior to every other condition[59]. This they called villenage, and the tenants villeins, either from the word villis, or else, as sir Edward Coke tells us[60], a villa; because they lived chiefly in villages, and were employed in rustic works of the most fordid kind: like the Spartan helotes, to whom alone the culture of the lands was consigned; their rugged masters, like our northern ancestors, esteeming war the only honourable employment of mankind.
These villeins, belonging principally to lords of manors, were either villeins regardant, that is, annexed to the manor or land; or else they were in gross, or at large, that is, annexed to the person of the lord, and transferrable by deed from one owner to another[61]. They could not leave their lord without his permission; but, if they ran away, or were purloined from him, might be claimed and recovered by action, like beasts or other chattels. They held indeed small portions of land by way of sustaining themselves and families; but it was at the mere will of the lord, who might dispossess them whenever he pleased; and it was upon villein services, that is, to carry out dung, to hedge and ditch the lord’s demesnes, and any other the meanest offices[62]: and these services were not only base, but uncertain both as to their time and quantity[63]. A villein, in short, was in much the same state with us, as lord Molesworth[64] describes to be that of the boors in Denmark, and Stiernhook[65] attributes also to the traals or slaves in Sweden; which confirms the probability of their being in some degree monuments of the Danish tyranny. A villein could acquire no property either in lands or goods; but, if he purchased either, the lord might enter upon them, oust the villein, and seise them to his own use, unless he contrived to dispose of them again before the lord had seised them; for the lord had then lost his opportunity[66].
In many places also a fine was payable to the lord, if the villein presumed to marry his daughter to any one without leave from the lord[67]: and, by the common law, the lord might also bring an action against the husband for damages in thus purloining his property[68]. For the children of villeins were also in the same state of bondage with their parents; whence they were called in Latin, nativi, which gave rise to the female appellation of a villein, who was called a neife[69]. In case of a marriage between a freeman and a neife, or a villein and a freewoman, the issue followed the condition of the father, being free if he was free, and villein if he was villein; contrary to the maxim of the civil law, that partus sequitur ventrem. But no bastard could be born a villein, because by another maxim of our law he is nullius filius; and as he can gain nothing by inheritance, it were hard that he should lose his natural freedom by it[70]. The law however protected the persons of villeins, as the king’s subjects, against atrocious injuries of the lord: for he might not kill, or maim his villein[71]; though he might beat him with impunity, since the villein had no action or remedy at law against his lord, but in case of the murder of his ancestor or the maim of his own person. Neifes indeed had also an appeal of rape, in case the lord violated them by force[72].
Villeins might be enfranchised by manumission, which is either express or implied: express; as where a man granted to the villein a deed of manumission[73]: implied; as where a man bound himself in a bond to his villein for a sum of money, granted him an annuity by deed, or gave him an estate in fee, for life, or years[74]: for this was dealing with his villein on the footing of a freeman; it was in some of the instances giving him an action against his lord, and in others vesting an ownership in him entirely inconsistent with his former state of bondage. So also if the lord brought an action against his villein, this enfranchised him[75]; for, as the lord might have a short remedy against his villein, by seising his goods, (which was more than equivalent to any damages he could recover) the law, which is always ready to catch at any thing in favour of liberty, presumed that by bringing this action he meant to set his villein on the same footing with himself, and therefore held it an implied manumission. But, in case the lord indicted him for felony, it was otherwise; for the lord could not inflict a capital punishment on his villein, without calling in the assistance of the law.
Villeins, by this and many other means, in process of time gained considerable ground on their lords; and in particular strengthened the tenure of their estates to that degree, that they came to have in them an interest in many places full as good, in others better than their lords. For the goodnature and benevolence of many lords of manors having, time out of mind, permitted their villeins and their children to enjoy their possessions without interruption, in a regular course of descent, the common law, of which custom is the life, now gave them title to prescribe against their lords; and, on performance of the same services, to hold their lands, in spight of any determination of the lord’s will. For, though in general they are still said to hold their estates at the will of the lord, yet it is such a will as is agreeable to the custom of the manor; which customs are preserved and evidenced by the rolls of the several courts baron in which they are entered, or kept on foot by the constant immemorial usage of the several manors in which the lands lie. And, as such tenants had nothing to shew for their estates but these customs, and admissions in pursuance of them, entered on those rolls, or the copies of such entries witnessed by the steward, they now began to be called tenants by copy of court roll, and their tenure itself a copyhold[76].
Thus copyhold tenures, as sir Edward Coke observes[77], although very meanly descended, yet come of an antient house; for, from what has been premised it appears, that copyholders are in truth no other but villeins, who, by a long series of immemorial encroachments on the lord, have at last established a customary right to those estates, which before were held absolutely at the lord’s will. Which affords a very substantial reason for the great variety of customs that prevail in different manors, with regard both to the descent of the estates, and the privileges belonging to the tenants. And these encroachments grew to be so universal, that when tenure in villenage was virtually abolished, (though copyholds were reserved) by the statute of Charles II, there was hardly a pure villein left in the nation. For sir Thomas Smith[78] testifies, that in all his time (and he was secretary to Edward VI) he never knew any villein in gross throughout the realm; and the few villeins regardant that were then remaining were such only as had belonged to bishops, monasteries, or other ecclesiastical corporations, in the preceding times of popery. For he tells us, that “the holy fathers, monks, and friars, had in their confessions, and specially in their extreme and deadly sickness, convinced the laity how dangerous a practice it was, for one christian man to hold another in bondage: so that temporal men, by little and little, by reason of that terror in their consciences, were glad to manumit all their villeins. But the said holy fathers, with the abbots and priors, did not in like sort by theirs; for they also had a scruple in conscience to empoverish and despoil the church so much, as to manumit such as were bond to their churches, or to the manors which the church had gotten; and so kept their villeins still.” By these several means the generality of villeins in the kingdom have long ago sprouted up into copyholders: their persons being enfranchised by manumission or long acquiescence; but their estates, in strictness, remaining subject to the same servile conditions and forfeitures as before; though, in general, the villein services are usually commuted for a small pecuniary quit-rent[79].
As a farther consequence of what has been premised, we may collect these two main principles, which are held[80] to be the supporters of a copyhold tenure, and without which it cannot exist; 1. That the lands be parcel of, and situate within, that manor, under which it is held. 2. That they have been demised, or demisable, by copy of court roll immemorially. For immemorial custom is the life of all tenures by copy; so that no new copyhold can, strictly speaking, be granted at this day.
In some manors, where the custom hath been to permit the heir to succeed the ancestor in his tenure, the estates are stiled copyholds of inheritance; in others, where the lords have been more vigilant to maintain their rights, they remain copyholds for life only: for the custom of the manor has in both cases so far superseded the will of the lord, that, provided the services be performed or stipulated for by fealty, he cannot, in the first instance, refuse to admit the heir of his tenant upon his death; nor, in the second, can he remove his present tenant so long as he lives, though he holds nominally by the precarious tenure of his lord’s will.
The fruits and appendages of a copyhold tenure, that it hath in common with free tenures, are fealty, services, (as well in rents as otherwise) reliefs, and escheats. The two latter belong only to copyholds of inheritance; the former to those for life only. But, besides these, copyholds have also heriots, wardship, and fines. Heriots, which I think are agreed to be a Danish custom, and of which we shall say more hereafter, are a render of the best beast or other good (as the custom may be) to the lord on the death of the tenant. This is plainly a relic of villein tenure; there being originally less hardship in it, when all the goods and chattels belonged to the lord, and he might have seised them even in the villein’s lifetime. These are incident to both species of copyhold; but wardship and fines to those of inheritance only. Wardship, in copyhold estates, partakes both of that in chivalry and that in socage. Like that in chivalry, the lord is the legal guardian, who usually assigns some relation of the infant tenant to act in his stead: and he, like guardian in socage, is accountable to his ward for the profits. Of fines, some are in the nature of primer seisins, due on the death of each tenant, others are mere fines for alienation of the lands; in some manors only one of these sorts can be demanded, in some both, and in others neither. They are sometimes arbitrary and at the will of the lord, sometimes fixed by custom: but, even when arbitrary, the courts of law, in favour of the liberty of copyholders, have tied them down to be reasonable in their extent; otherwise they might amount to a disherison of the estate. No fine therefore is allowed to be taken upon descents and alienations, (unless in particular circumstances) of more than two years improved value of the estate[81]. From this instance we may judge of the favourable disposition, that the law of England (which is a law of liberty) hath always shewn to this species of tenants; by removing, as far as possible, every real badge of slavery from them, however some nominal ones may continue. It suffered custom very early to get the better of the express terms upon which they held their lands; by declaring, that the will of the lord was to be interpreted by the custom of the manor: and, where no custom has been suffered to grow up to the prejudice of the lord, as in this case of arbitrary fines, the law itself interposes in an equitable method, and will not suffer the lord to extend his power so far, as to disinherit the tenant.
Thus much for the antient tenure of pure villenage, and the modern one of copyhold at the will of the lord, which is lineally descended from it.
IV. There is yet a fourth species of tenure, described by Bracton under the name sometimes of privileged villenage, and sometimes of villein-socage. This, he tells us[82], is such as has been held of the kings of England from the conquest downwards; that the tenants herein “villana faciunt servitia, sed certa et determinata;” that they cannot aliene or transfer their tenements by grant or feoffment, any more than pure villeins can; but must surrender them to the lord or his steward, to be again granted out and held in villenage. And from these circumstances we may collect, that what he here describes is no other than an exalted species of copyhold, subsisting at this day, viz. the tenure in antient demesne; to which, as partaking of the baseness of villenage in the nature of it’s services, and the freedom of socage in their certainty, he has therefore given a name compounded out of both, and calls it villanum socagium.
Antient demesne consists of those lands or manors, which, though now perhaps granted out to private subjects, were actually in the hands of the crown in the time of Edward the confessor, or William the conqueror; and so appear to have been by the great survey in the exchequer called domesday book[83]. The tenants of these lands, under the crown, were not all of the same order or degree. Some of them, as Britton testifies[84], continued for a long time pure and absolute villeins, dependent on the will of the lord: and those who have succeeded them in their tenures now differ from common copyholders in only a few points[85]. Others were in great measure enfranchised by the royal favour: being only bound in respect of their lands to perform some of the better sort of villein services, but those determinate and certain; as, to plough the king’s land, to supply his court with provisions, and the like; all of which are now changed into pecuniary rents: and in consideration hereof they had many immunities and privileges granted to them[86]; as, to try the right of their property in a peculiar court of their own, called a court of antient demesne, by a peculiar process denominated a writ of right close[87]; not to pay toll or taxes; not to contribute to the expenses of knights of the shire; not to be put on juries, and the like[88].
These tenants therefore, though their tenure be absolutely copyhold, yet have an interest equivalent to a freehold: for, though their services were of a base and villenous original[89], yet the tenants were esteemed in all other respects to be highly privileged villeins; and especially in this, that their services were fixed and determinate, and that they could not be compelled (like pure villeins) to relinquish these tenements at the lord’s will, or to hold them against their own: “et ideo, says Bracton, dicuntur liberi.” Britton also, from such their freedom, calls them absolutely sokemans, and their tenure sokemanries; which he describes[90] to be “lands and tenements, which are not held by knight-service, nor by grand serjeanty, nor by petit, but by simple services, being as it were lands enfranchised by the king or his predecessors from their antient demesne.” And the same name is also given them in Fleta[91]. Hence Fitzherbert observes[92], that no lands are antient demesne, but lands holden in socage: that is, not in free and common socage, but in this amphibious, subordinate class, of villein-socage. And it is possible, that as this species of socage tenure is plainly founded upon predial services, or services of the plough, it may have given cause to imagine that all socage tenures arose from the same original; for want of distinguishing, with Bracton, between free-socage or socage of frank-tenure, and villein-socage or socage of antient demesne.
Lands held by this tenure are therefore a species of copyhold, and as such preserved and exempted from the operation of the statute of Charles II. Yet they differ from common copyholds, principally in the privileges before-mentioned: as also they differ from freeholders by one especial mark and tincture of villenage, noted by Bracton and remaining to this day; viz. that they cannot be conveyed from man to man by the general common law conveyances of feoffment, and the rest; but must pass by surrender to the lord or his steward, in the manner of common copyholds: yet with this difference[93], that, in these surrenders of lands in antient demesne of frank tenure, it is not used to say “to hold at the will of the lord” in their copies, but only “to hold according to the custom of the manor.”
Thus have we taken a compendious view of the principal and fundamental points of the doctrine of tenures, both antient and modern, in which we cannot but remark the mutual connexion and dependence that all of them have upon each other. And upon the whole it appears, that, whatever changes and alterations these tenures have in process of time undergone, from the Saxon aera to the 12 Car. II. all lay tenures are now in effect reduced to two species; free tenure in common socage; and base tenure by copy of court roll.
I mentioned lay tenures only; because there is still behind one other species of tenure, reserved by the statute of Charles II, which is of a spiritual nature, and called the tenure in frankalmoign.
V. Tenure in frankalmoign, in libera eleemosyna, or free alms, is that, whereby a religious corporation, aggregate or sole, holdeth lands of the donor to them and their successors for ever[94]. The service, which they were bound to render for these lands was not certainly defined; but only in general to pray for the souls of the donor and his heirs, dead or alive; and therefore they did no fealty, (which is incident to all other services but this[95]) because this divine service was of a higher and more exalted nature[96]. This is the tenure, by which almost all the antient monasteries and religious houses held their lands; and by which the parochial clergy, and very many ecclesiastical and eleemosynary foundations, hold them at this day[97]; the nature of the service being upon the reformation altered, and made conformable to the purer doctrines of the church of England. It was an old Saxon tenure; and continued under the Norman revolution, through the great respect that was shewn to religion and religious men in antient times. Which is also the reason that tenants in frankalmoign were discharged of all other services, except the trinoda necessitas, of repairing the highways, building castles, and repelling invasions[98]: just as the Druids, among the antient Britons, had omnium rerum immunitatem[99]. And, even at present, this is a tenure of a nature very distinct from all others; being not in the least feodal, but merely spiritual. For if the service be neglected, the law gives no remedy by distress or otherwise to the lord of whom the lands are holden; but merely a complaint to the ordinary or visitor to correct it[100]. Wherein it materially differed from what was called tenure by divine service: in which the tenants were obliged to do some special divine services in certain; as to sing so many masses, to distribute such a sum in alms, and the like; which, being expressly defined and prescribed, could with no kind of propriety be called free alms; especially as for this, if unperformed, the lord might distrein, without any complaint to the visitor[101]. All such donations are indeed now out of use: for, since the statute of quia emptores, 18 Edw. I. none but the king can give lands to be holden by this tenure[102]. So that I only mention them, because frankalmoign is excepted by name in the statute of Charles II, and therefore subsists in many instances at this day. Which is all that shall be remarked concerning it; herewith concluding our observations on the nature of tenures.
↑ l. 2. c. 16. §. 9.
↑ l. 3. c. 14. §. 9.
↑ §. 117.
↑ §. 118.
↑ L. 147.
↑ Litt. §. 117, 118, 119.
↑ l. 3. c. 7.
↑ Gavelk. 138.
↑ In like manner Skene in his exposition of the Scots’ law, title socage, tells us that it is “anè kind of holding of lands, quhen ony man is infeft freely,” &c.
↑ Litt. §. 119.
↑ §. 118.
↑ Litt. §. 98. 120.
↑ c. 66.
↑ Wright. 211.
↑ §. 159.
↑ §. 160.
↑ cap. 27.
↑ lib. 7. cap. 3.
↑ §. 162.
↑ Litt. §. 162, 163.
↑ ubi supra.
↑ §. 165.
↑ §. 211
↑ 3 Mod. Pref.
↑ Seld. tit. of hon. 2. 1. 47. Reg. Mag. l. 4. c. 31.
↑ Pater cunctos filios adultos a se pellebat, praeter umim quem heredem sui juris relinquebat. (Walsingh. Upodigm. Neustr. c. 1.)
↑ Litt. §. 166.
↑ §. 167.
↑ Wright. 172.
↑ Stat. 32 Hen. VIII. c. 29. Kitch. of courts, 200.
↑ In toto regno, ante ducis adventum, frequens et usitata fuit: postea caeteris adempta, sed privatis quorundam locorum consuetudinibus alibi postea regerminans: Cantianis solum integra et inviolata remansit. (Analect. l. 2. c. 7.)
↑ Lamb. Peramb. 614.
↑ Lamb. 634.
↑ F. N. B. 198. Cro. Car. 561.
↑ Litt. §. 210.
↑ Glanvil. l. 7. c. 3.
↑ Wright. 211.
↑ Spelm. cod. vet. leg. 355.
↑ pag. 48.
↑ c. 66.
↑ Litt. §. 117. 131.
↑ §. 130.
↑ Eo maxime praestandum est, ne dubium reddatur jus domini et vetustate temporis obscuretur. (Corvin. jus feud. l. 2. t. 7.)
↑ Co. Litt. 91.
↑ Litt. §. 126.
↑ l. 2. c. 37. §. 8.
↑ Litt. §. 127.
↑ 3 Lev. 145.
↑ Co. Litt. 77.
↑ page 449.
↑ Litt. §. 123. Co. Litt. 89.
↑ Litt. §. 123.
↑ 1 Inst. 43. 2 Inst. 65, 66, 67.
↑ Wright, 210.
↑ Co. Cop. §. 2, § 10.
↑ Co. Cop. §. 3.
↑ Wright. 215.
↑ Introd. Hist. Engl. 59.
↑ Wright. 217.
↑ 1 Inst. 116.
↑ Litt. §. 181.
↑ Ibid. §. 172.
↑ Ille qui tenet in villenagio faciet quicquid ei praeceptum fuerit, nec scire debet sero quid facere debet in crastino, et semper tenebitur ad incerta. (Bracton. l. 4. tr. 1. c. 28.)
↑ c. 8.
↑ de jure Sueonum. l. 2. c. 4.
↑ Litt. §. 177.
↑ Co. Litt. 140.
↑ Litt. §. 202.
↑ Litt. §. 187.
↑ Ibid. §. 187, 188.
↑ Ibid. §. 189. 194.
↑ Ibid. §. 190.
↑ Ibid. §. 204.
↑ §. 204, 5, 6.
↑ §. 208.
↑ F. N. B. 12.
↑ Cop. §. 32.
↑ Commonwealth. b. 3. c. 10.
↑ In some manors the copyholders were bound to perform the most servile offices, as to hedge and ditch the lord’s grounds, to lop his trees, to reap his corn, and the like; the lord usually finding them meat and drink, and sometinies (as is still the use in the highlands of Scotland) a minstrell or piper for their diversion. (Rot. Maner. de Edgware Com. Midd.) As in the kingdom of Whidah, on the slave coast of Africa, the people are bound to cut and carry in the king’s corn from off his demesne lands, and are attended by music during all the time of their labour. (Mod. Un. Hist. xvi. 429.)
↑ Co. Litt. 58.
↑ 2 Ch. Rep. 134.
↑ l. 4. tr. 1. c. 28.
↑ F. N. B. 14. 16.
↑ c. 66.
↑ F. N. B. 228.
↑ 4 Inst. 269.
↑ F. N. B. 11.
↑ Ibid. 14.
↑ Gilb. hist. of the exch. 16. & 30.
↑ c. 66.
↑ l. 1. c. 8.
↑ N. B. 13.
↑ Kitchen on courts. 194.
↑ Litt. §. 133.
↑ Ibid. 131.
↑ Ibid. 135.
↑ Bracton. l. 4. tr. 1. c. 28. §. 1.
↑ Seld. Jan. 1. 42.
↑ Caesar de bell. Gall. l. 6. c. 13.
↑ Litt. §. 136.
↑ Ibid. 137.
↑ Ibid. 140.
Chapter the seventh.
Of FREEHOLD ESTATES, of INHERITANCE.
THE next objects of our disquisitions are the nature and properties of estates. An estate in lands, tenements, and hereditaments, signifies such interest as the tenant hath therein: so that if a man grants all his estate in Dale to A and his heirs, every thing that he can possibly grant shall pass thereby[1]. It is called in Latin, status; it signifying the condition, or circumstance, in which the owner stands, with regard to his property. And, to ascertain this with proper precision and accuracy, estates may be considered in a threefold view: first, with regard to the quantity of interest which the tenant has in the tenement: secondly, with regard to the time at which that quantity of interest is to be enjoyed: and, thirdly, with regard to the number and connexions of the tenants.
First, with regard to the quantity of interest which the tenant has in the tenement, this is measured by it’s duration and extent. Thus, either his right of possession is to subsist for an uncertain period, during his own life, or the life of another man; to determine at his own decease, or to remain to his descendants after him: or it is circumscribed within a certain number of years, months, or days: or, lastly, it is infinite and unlimited, being vested in him and his representatives for ever. And this occasions the primary division of estates, into such as are freehold, and such as are less than freehold.
An estate of freehold, liberum tenementum, or franktenement, is defined by Britton[2] to be “the possession of the soil by a free-man.” And St. Germyn[3] tells us, that “the possession of the land is called in the law of England the franktenement or freehold.” Such estate therefore, and no other, as requires actual possession of the land, is legally speaking freehold: which actual possession can, by the course of the common law, be only given by the ceremony called livery of seisin, which is the same as the feodal investiture. And from these principles we may extract this description of a freehold; that it is such an estate in lands as is conveyed by livery of seisin; or, in tenements of an incorporeal nature, by what is equivalent thereto. And accordingly it is laid down by Littleton[4], that where a freehold shall pass, it behoveth to have livery of seisin. As therefore estates of inheritance and estates for life could not by common law be conveyed without livery of seisin, these are properly estates of freehold; and, as no other estates were conveyed with the same solemnity, therefore no others are properly freehold estates.
Estates of freehold then are divisible into estates of inheritance, and estates not of inheritance. The former are again divided into inheritances absolute or fee-simple; and inheritances limited, one species of which we usually call fee-tail.
- Tenant in fee-simple (or, as he is frequently stiled, tenant in fee) is he that hath lands, tenements, or hereditaments, to hold to him and his heirs for ever[5]; generally, absolutely, and simply; without mentioning what heirs, but referring that to his own pleasure, or to the disposition of the law. The true meaning of the word fee (feodum) is the same with that of feud or fief, and in it’s original sense it is taken in contradistinction to allodium[6]; which latter the writers on this subject define to be every man’s own land, which he possesseth merely in his own right, without owing any rent or service to any superior. This is property in it’s highest degree; and the owner thereof hath absolutum et directum dominium, and therefore is said to be seised thereof absolutely in dominico suo, in his own demesne. But feodum, or fee, is that which is held of some superior, on condition of rendering him service; in which superior the ultimate property of the land resides. And therefore sir Henry Spelman[7] defines a feud or fee to be the right which the vasal or tenant hath in lands, to use the same, and take the profits thereof to him and his heirs, rendering to the lord his due services; the mere allodial propriety of the soil always remaining in the lord. This allodial property no subject in England has[8]; it being a received, and now undeniable, principle in the law, that all the lands in England are holden mediately or immediately of the king. The king therefore only hath absolutum et directum dominium[9]; but all subjects’ lands are in the nature of feodum or fee; whether derived to them by descent from their ancestors, or purchased for a valuable consideration; for they cannot come to any man by either of those ways, unless accompanied with those feodal clogs, which were laid upon the first feudatory when it was originally granted. A subject therefore hath only the usufruct, and not the absolute property of the soil; or, as sir Edward Coke expresses it[10], he hath dominium utile, but not dominium directum. And hence it is that, in the most solemn acts of law, we express the strongest and highest estate, that any subject can have, by these words; “he is seised thereof in his demesne, as of fee.” It is a man’s demesne, dominicum, or property, since it belongs to him and his heirs for ever: yet this dominicum, property, or demesne, is strictly not absolute or allodial, but qualified or feodal: it is his demesne, as of fee; that is, it is not purely and simply his own, since it is held of a superior lord, in whom the ultimate property resides.
This is the primary sense and acceptation of the word fee. But (as sir Martin Wright very justly observes[11]) the doctrine, “that all lands are holden,” having been for so many ages a fixed and undeniable axiom, our English lawyers do very rarely (of late years especially) use the word fee in this it’s primary original sense, in contradistinction to allodium or absolute property, with which they have no concern; but generally use it to express the continuance or quantity of estate. A fee therefore, in general, signifies an estate of inheritance; being the highest and most extensive interest that a man can have in a feud: and, when the term is used simply, without any other adjunct, or has the adjunct of simple annexed to it, (as, a fee, or, a fee-simple) it is used in contradistinction to a fee conditional at the common law, or a fee-tail by the statute; importing an absolute inheritance, clear of any condition, limitation, or restrictions to particular heirs, but descendible to the heirs general, whether male or female, lineal or collateral. And in no other sense than this is the king said to be seised in fee, he being the feudatory of no man[12].
Taking therefore fee for the future, unless where otherwise explained, in this it’s secondary sense, as a state of inheritance, it is applicable to, and may be had in, any kind of hereditaments either corporeal or incorporeal[13]. But there is this distinction between the two species of hereditaments; that, of a corporeal inheritance a man shall be said to be seised in his demesne, as of fee; of an incorporeal one he shall only be said to be seised as of fee, and not in his demesne[14]. For, as incorporeal hereditaments are in their nature collateral to, and issue out of, lands and houses[15], their owner hath no property, dominicum, or demesne, in the thing itself, but hath only something derived out of it; resembling the servitutes, or services, of the civil law[16]. The dominicum or property is frequently in one man, while the appendage or service is in another. Thus Gaius may be seised as of fee, of a way going over the land, of which Titius is seised in his demesne as of fee.
The fee-simple or inheritance of lands and tenements is generally vested and resides in some person or other; though divers inferior estates may be carved out of it. As if one grants a lease for twenty one years, or for one or two lives, the fee-simple remains vested in him and his heirs; and after the determination of those years or lives, the land reverts to the grantor or his heirs, who shall hold it again in fee-simple. Yet sometimes the fee may be in abeyance, that is (as the word signifies) in expectation, remembrance, and contemplation in law; there being no person in esse, in whom it can vest and abide; though the law considers it as always potentially, existing, and ready to vest whenever a proper owner appears. Thus, in a grant to John for life, and afterwards to the heirs of Richard, the inheritance is plainly neither granted to John nor Richard, nor can it vest in the heirs of Richard till his death, nam nemo est haeres viventis: it remains therefore in waiting, or abeyance, during the life of Richard[17]. This is likewise always the case of a parson of a church, who hath only an estate therein for the term of his life: and the inheritance remains in abeyance[18]. And not only the fee, but the freehold also, may be in abeyance; as, when a parson dies, the freehold of his glebe is in abeyance, until a successor be named, and then it vests in the successor[19].
The word, heirs, is necessary in the grant or donation in order to make a fee, or inheritance. For if land be given to a man for ever, or to him and his assigns for ever, this vests in him but an estate for life[20]. This very great nicety about the insertion of the word “heirs” in all feoffments and grants, in order to vest a fee, is plainly a relic of the feodal strictness: by which we may remember[21] it was required, that the form of the donation should be punctually pursued; or that, as Crag[22] expresses it, in the words of Baldus, “donationes sint stricti juris, ne quis plus donasse praesumatur quam in donatione expresserit.” And therefore, as the personal abilities of the donee were originally supposed to be the only inducements to the gift, the donee’s estate in the land extended only to his own person, and subsisted no longer than his life; unless the donor, by an express provision in the grant, gave it a longer continuance, and extended it also to his heirs. But this rule is now softened by many exceptions[23].
For, 1. It does not extend to devises by will; in which, as they were introduced at the time when the feodal rigor was apace wearing out, a more liberal construction is allowed: and therefore by a devise to a man for ever, or to one and his assigns for ever, or to one in fee-simple, the devisee hath an estate of inheritance; for the intention of the devisor is sufficiently plain from the words of perpetuity annexed, though he hath omitted the legal words of inheritance. But if the devise be to a man and his assigns, without annexing words of perpetuity, there the devisee shall take only an estate for life; for it does not appear that the devisor intended any more. 2. Neither does this rule extend to fines or recoveries, considered as a species of conveyance; for thereby an estate in fee passes by act and operation of law without the word “heirs:” as it does also, for particular reasons, by certain other methods of conveyance, which have relation to a former grant or estate, wherein the word “heirs” was expressed[24]. 3. In creations of nobility by writ, the peer so created hath an inheritance in his title, without expressing the word, “heirs;” for they are implied in the creation, unless it be otherwise specially provided: but in creations by patent, which are stricti juris, the word “heirs” must be inserted, otherwise there is no inheritance, 4. In grants of lands to sole corporations and their successors, the word “successors” supplies the place of “heirs;” for as heirs take from the ancestor, so doth the successor from the predecessor. Nay, in a grant to a bishop, or other sole spiritual corporation, in frankalmoign, the word “frankalmoign” supplies the place of both “heirs” and “successors,” ex vi termini; and in all these cases a fee-simple vests in such sole corporation. But, in a grant of lands to a corporation aggregate, the word “successors” is not necessary, though usually inserted: for, albeit such simple grant be strictly only an estate for life, yet, as that corporation never dies, such estate for life is perpetual, or equivalent to a fee-simple, and therefore the law allows it to be one[25]. Lastly, in the case of the king, a fee-simple will vest in him, without the words “heirs” or “successors” in the grant; partly from prerogative royal, and partly from a reason similar to the last, because the king in judgment of law never dies[26]. But the general rule is, that the word “heirs” is necessary to create an estate of inheritance.
II. We are next to consider limited fees, or such estates of inheritance as are clogged and confined with conditions, or qualifications, of any sort. And these we may divide into two sorts: 1. Qualified, or base fees; and 2. Fees conditional, so called at the common law; and afterwards fees-tail, in consequence of the statute de donis.
-
A base, or qualified, fee is such a one as has a qualification subjoined thereto, and which must be determined whenever the qualification annexed to it is at an end. As, in the case of a grant to A and his heirs, tenants of the manor of Dale; in this instance, whenever the heirs of A cease to be tenants of that manor, the grant is intirely defeated. So, when Henry VI granted to John Talbot, lord of the manor of Kingston-Lisle in Berks, that he and his heirs, lords of the said manor, should be peers of the realm, by the title of barons of Lisle; here John Talbot had a base or qualified fee in that dignity[27]; and the instant he or his heirs quitted the seignory of this manor, the dignity was at an end. This estate is a fee, because by possibility it may endure for ever in a man and his heirs; yet as that duration depends upon the concurrence of collateral circumstances, which qualify and debase the purity of the donation, it is therefore a qualified or base fee.
-
A conditional fee, at the common law, was a fee restrained to some particular heirs, exclusive of others: “donatio stricta et coarctata[28]; sicut certis haeredibus, quibusdam a successione exclusis:” as, to the heirs of a man’s body, by which only his lineal descendants were admitted, in exclusion of collateral heirs; or, to the heirs male of his body, in exclusion both of collaterals, and lineal females also. It was called a conditional fee, by reason of the condition expressed or implied in the donation of it, that if the donee died without such particular heirs, the land should revert to the donor. For this was a condition annexed by law to all grants whatsoever; that on failure of the heirs specified in the grant, the grant should be at an end, and the land return to it’s antient proprietor[29]. Such conditional fees were strictly agreeable to the nature of feuds, when they first ceased to be mere estates for life, and were not yet arrived to be absolute estates in fee-simple. And we find strong traces of these limited, conditional fees, which could not be alienated from the lineage of the first purchasor, in our earliest Saxon laws[30].
Now, with regard to the condition annexed to these fees by the common law, our ancestors held, that such a gift (to a man and the heirs of his body) was a gift upon condition, that it should revert to the donor, if the donee had no heirs of his body; but, if he had, it should then remain to the donee. They therefore called it a fee-simple, on condition that he had issue. Now we must observe, that, when any condition is performed, it is thenceforth intirely gone; and the thing, to which it was before annexed, becomes absolute, and wholly unconditional. So that, as soon as the grantee had any issue born, his estate was supposed to become absolute, by the performance of the condition; at least, for these three purposes: 1. To enable the tenant to aliene the land, and thereby to bar not only his own issue, but also the donor of his interest in the reversion[31]. 2. To subject him to forfeit it for treason: which he could not do, till issue born, longer than for his own life; left thereby the inheritance of the issue, and reversion of the donor, might have been defeated[32]. 3. To empower him to charge the land with rents, commons, and certain other incumbrances, so as to bind his issue[33]. And this was thought the more reasonable, because, by the birth of issue, the possibility of the donor’s reversion was rendered more distant and precarious: and his interest seems to have been the only one which the law, as it then stood, was solicitous to protect; without much regard to the right of succession intended to be vested in the issue. However, if the tenant did not in fact aliene the land, the course of descent was not altered by this performance of the condition: for if the issue had afterwards died, and then the tenant, or original grantee, had died, without making any alienation; the land, by the terms of the donation, could descend to none but the heirs of his body, and therefore, in default of them, must have reverted to the donor. For which reason, in order to subject the lands to the ordinary course of descent, the donees of these conditional fee-simples took care to aliene as soon as they had performed the condition by having issue; and afterwards re-purchased the lands, which gave them a fee-simple absolute, that would descend to the heirs general, according to the course of the common law. And thus stood the old law with regard to conditional fees: which things, says sir Edward Coke[34], though they seem antient, are yet necessary to be known; as well for the declaring how the common law stood in such cases, as for the sake of annuities, and such like inheritances, as are not within the statutes of entail, and therefore remain as at the common law.
The inconvenience, which attended these limited and fettered inheritances, were probably what induced the judges to give way to this subtle finesse, (for such it undoubtedly was) in order to shorten the duration of these conditional estates. But, on the other hand, the nobility, who were willing to perpetuate their possessions in their own families, to put a stop to this practice, procured the statute of Westminster the second[35] (commonly called the statute de donis conditionalibus) to be made; which pays a greater regard to the private will and intentions of the donor, than to the propriety of such intentions, or any public considerations whatsoever. This statute revives in some sort the antient feodal restraints which were originally laid on alienations, by enacting, that from thenceforth the will of the donor be observed; and that the tenements so given (to a man and the heirs of his body) should at all events go to the issue, if there were any; or, if none, should revert to the donor.
Upon the construction of this act of parliament, the judges determined that the donee had no longer a conditional fee-simple, which became absolute and at his own disposal, the instant any issue was born; but they divided the estate into two parts, leaving in the donee a new kind of particular estate, which they denominated a fee-tail[36]; and vesting in the donor the ultimate fee-simple of the land, expectant on the failure of issue; which expectant estate is what we now call a reversion[37]. And hence it is that Littleton tell us[38], that tenant in fee-tail is by virtue of the statute of Westminster the second.
Having thus shewn the original of estates-tail, I now proceed to consider, what things may, or may not, be entailed under the statute de donis. Tenements is the only word used in the statute: and this sir Edward Coke[39] expounds to comprehend all corporeal hereditaments whatsoever; and also all incorporeal hereditaments which favour of the realty, that is, which issue out of corporeal ones, or which concern, or are annexed to, or may be exercised within the same; as, rents, estovers, commons, and the like. Also offices and dignities, which concern lands, or have relation to fixed and certain places, may be entailed[40]. But mere personal chattels, which favour not at all of the realty, cannot be entailed. Neither can an office, which merely relates to such personal chattels; nor an annuity, which charges only the person, and not the lands, of the grantor. But in them, if granted to a man and the heirs of his body, the grantee hath still a fee conditional at common law, as before the statute; and by his alienation may bar the heir or reversioner[41]. An estate to a man and his heirs for another’s life cannot be entailed[42]; for this is strictly no estate of inheritance (as will appear hereafter) and therefore not within the statute de donis. Neither can a copyhold estate be entailed by virtue of the statute; for that would tend to encroach upon and restrain the will of the lord; but, by the special custom of the manor, a copyhold may be limited to the heirs of the body[43]; for here the custom ascertains and interprets the lord’s will.
Next, as to the several species of estates-tail, and how they are respectively created. Estates-tail are either general, or special. Tail-general is where lands and tenements are given to one, and the heirs of his body begotten: which is called tail-general, because, how often soever such donee in tail be married, his issue in general by all and every such marriage is, in successive order, capable of inheriting the estate-tail, per formam doni[44]. Tenant in tail-special is where the gift is restrained to certain heirs of the donee’s body, and does not go to all of them in general. And this may happen several ways[45]. I shall instance in only one: as where lands and tenements are given to a man and the heirs of his body, on Mary his now wife to be begotten; here no issue can inherit, but such special issue as is engendered between them two: not such as the husband may have by another wife: and therefore it is called special tail. And here we may observe, that the words of inheritance (to him and his heirs) give him an estate in fee; but they being heirs to be by him begotten, this makes it a fee-tail; and the person being also limited, on whom such heirs shall be begotten, (viz. Mary his present wife) this makes it a fee-tail special.
Estates, in general and special tail, are farther diversified by the distinction of sexes in such entails; for both of them may either be in tail male or tail female. As if lands be given to a man, and his heirs male of his body begotten, this is an estate in tail male general; but if to a man and the heirs female of his body on his present wife begotten, this is an estate in tail female special. And, in case of an entail male, the heirs female shall never inherit, nor any derived from them; nor, e converso, the heirs male, in case of a gift in tail female[46]. Thus, if the donee in tail male hath a daughter, who dies leaving a son, such grandson in this case cannot inherit the estate-tail; for he cannot deduce his descent wholly by heirs male[47]. And as the heir male must convey his descent wholly by males, so must the heir female wholly by females. And therefore if a man hath two estates-tail, the one in tail male, the other in tail female; and he hath issue a daughter, which daughter hath issue a son; this grandson can succeed to neither of the estates: for he cannot convey his descent wholly either in the male or female line[48].
As the word heirs is necessary to create a fee, so, in farther imitation of the strictness of the feodal donation, the word body, or some other words of procreation, are necessary to make it a fee-tail, and ascertain to what heirs in particular the fee is limited. If therefore either the words of inheritance or words of procreation be omitted, albeit the others are inserted in the grant, this will not make an estate-tail. As, if the grant be to a man and his issue of his body, to a man and his feed, to a man and his children, or offspring; all these are only estates for life, there wanting the words of inheritance, his heirs[49]. So, on the other hand, a gift to a man, and his heirs male, or female, is an estate in fee-simple, and not in fee-tail; for there are no words to ascertain the body out of which they shall issue[50]. Indeed, in last wills and testaments, wherein greater indulgence is allowed, an estate-tail may be created by a devise to a man and his feed, or to a man and his heirs male; or by other irregular modes of expression[51].
There is still another species of entailed estates, now indeed grown out of use, yet still capable of subsisting in law; which are estates in libera maritagio, or frankmarriage. These are defined[52] to be, where tenements are given by one man to another, together with a wife, who is the daughter or cousin of the donor, to hold in frankmarriage. Now by such gift, though nothing but the word frankmarriage is expressed, the donees shall have the tenements to them, and the heirs of their two bodies begotten; that is, they are tenants in special tail. For this one word, frankmarriage, does ex vi termini not only create an inheritance, like the word frankalmoign, but likewise limits that inheritance; supplying not only words of descent, but of procreation also. Such donees in frankmarriage are liable to no service but fealty; for a rent reserved thereon is void, until the fourth degree of consanguinity be past between the issues of the donor and donee[53].
The incidents to a tenancy in tail, under the statute Westm. 2. are chiefly these[54]. 1. That a tenant in tail may commit waste on the estate-tail, by felling timber, pulling down houses, or the like, without being impeached, or called to account, for the same. 2. That the wife of the tenant in tail shall have her dower, or thirds, of the estate-tail. 3. That the husband of a female tenant in tail may be tenant by the curtesy of the estate-tail. 4. That an estate-tail may be barred, or destroyed, by a fine, by a common recovery, or by lineal warranty descending with assets to the heir. All which will hereafter be explained at large.
Thus much for the nature of estates-tail: the establishment of which family law (as it is properly stiled by Pigott[55]) occasioned infinite difficulties and disputes[56]. Children grew disobedient when they knew they could not be set aside: farmers were ousted of their leases made by tenants in tail; for, if such leases had been valid, then under colour of long leases the issue might have been virtually disinherited: creditors were defrauded of their debts; for, if tenant in tail could have charged his estate with their payment, he might also have defeated his issue, by mortgaging it for as much as it was worth: innumerable latent entails were produced to deprive purchasers of the lands they had fairly bought; of suits in consequence of which our antient books are full: and treasons were encouraged; as estates-tail were not liable to forfeiture, longer than for the tenant’s life. So that they were justly branded, as the fource of new conventions, and mischiefs unknown to the common law; and almost universally considered as the common grievance of the realm[57]. But, as the nobility were always fond of this statute, because it preserved their family estates from forfeiture, there was little hopes of procuring a repeal by the legislature; and therefore, by the connivance of an adive and politic prince, a method was devised to evade it.
About two hundred years intervened between the making of the statute de donis, and the application of common recoveries to this intent, in the twelfth year of Edward IV: which were then openly declared by the judges to be a sufficient bar of an estate-tail[58]. For though the courts had, so long before as the reign of Edward III, very frequently hinted their opinion that a bar might be effected upon these principles[59], yet it never was carried into execution; till Edward IV observing[60] (in the disputes between the houses of York and Lancaster) how little effect attainders for treason had on families, whose estates were protected by the sanctuary of entails, gave his countenance to this proceeding, and suffered Taltarum’s case to be brought before the court[61]: wherein, in consequence of the principles then laid down, it was in effect determined, that a common recovery suffered by tenant in tail should be an effectual destruction thereof. What common recoveries are, both in their nature and consequences, and why they are allowed to be a bar to the estate-tail, must be reserved to a subsequent enquiry. At present I shall only say, that they are fictitious proceedings, introduced by a kind of pia fraus, to elude the statute de donis, which was found so intolerably mischievous, and which yet one branch of the legislature would not then consent to repeal: and, that these recoveries, however clandestinely begun, are now become by long use and acquiescence a most common assurance of lands; and are looked upon as the legal mode of coaveyance, by which tenant in tail may dispose of his lands and tenements: so that no court will suffer them to be shaken or reflected on, and even acts of parliament[62] have by a sidewind countenanced and established them.
This expedient having greatly abridged estates-tail with regard to their duration, others were soon invented to strip them of other privileges. The next that was attacked was their freedom from forfeitures for treason. For, notwithstanding the large advances made by recoveries, in the compass of about threescore years, towards unfettering these inheritances, and thereby subjecting the lands to forfeiture, the rapacious prince then reigning, finding them frequently re-settled in a similar manner to suit the convenience of families, had address enough to procure a statute[63], whereby all estates of inheritance (under which general words estates-tail were covertly included) are declared to be forfeited to the king upon any conviction of high treason.
The next attack which they suffered, in order of time, was by the statute 32 Hen. VIII. c. 28. whereby certain leases made by tenants in tail, which do not tend to the prejudice of the issue, were allowed to be good in law, and to bind the issue in tail. But they received a more violent blow, in the same session of parliament, by the construction put upon the statute of fines[64], by the statute 32 Hen. VIII. c. 36. which declares a fine duly levied by tenant in tail to be a complete bar to him and his heirs, and all other persons, claiming under such entail. This was evidently agreeable to the intention of Henry VII, whose policy it was (before common recoveries had obtained their full strength and authority) to lay the road as open as possible to the alienation of landed property in order to weaken the overgrown power of his nobles. But as they, from the opposite reasons, were not easily brought to consent to such a provision, it was therefore couched, in his act, under covert and obscure expressions. And the judges, though willing to construe that statute as favourably as possible for the defeating of entailed estates, yet hesitated at giving fines so extensive a power by mere implication, when the statute de donis had expressly declared, that they should not be a bar to estates-tail. But the statute of Henry VIII, when the doctrine of alienation was better received, and the will of the prince more implicitly obeyed than before, avowed and established that intention. Yet, in order to preserve the property of the crown from any danger of infringement, all estates-tail created by the crown, and of which the crown has the reversion, are excepted out of this statute. And the same was done with regard to common recoveries, by the statute 34 & 35 Hen. VIII. c. 20. which enacts, that no seigned recovery had against tenants in tail, where the estate was created by the crown[65], and the remainder or reversion continues still in the crown, shall be of any force or effect. Which is allowing, indirecty and collaterally, their full force and effect with respect to ordinary estates-tail, where the royal prerogative is not concerned.
Lastly, by a statute of the succeeding year[66], all estates-tail are rendered liable to be charged for payment of debts due to the king by record or special contract; as, since, by the bankrupt laws[67], they are also subjected to be sold for the debts contracted by a bankrupt. And, by the construction put on the statute 43 Eliz. c. 4. an appointment[68] by tenant in tail of the lands entailed, to a charitable use, is good without fine or recovery.
Estates-tail, being thus by degrees unfettered, are now reduced again to almost the same state, even before issue born, as conditional fees were in at common law, after the condition was performed, by the birth of issue. For, first, the tenant in tail is now enabled to aliene his lands and tenements by fine, by recovery, or by certain other means; and thereby to defeat the interest as well of his own issue, though unborn, as also of the reversioner, except in the case of the crown: secondly, he is now liable to forfeit them for high treason: and, lastly, he may charge them with reasonable leases, and also with such of his debts as are due to the crown on specialties, or have been contracted with his fellow-subjects in a course of extensive commerce.
↑ Co. Litt. 345.
↑ c. 32.
↑ Dr & Stud. b. 2. d. 22.
↑ §. 59.
↑ Litt. §. 1.
↑ See pag. 45. 47.
↑ of feuds, c. 1.
↑ Co. Litt. 1.
↑ Praedium domini regis est directum dominium, cujus nullus est author nisi Deus. Ibid.
↑ Ibid.
↑ pag. 148.
↑ Co. Litt. 1.
↑ Feodum est quod quis tenet sibi et heredibus suis, sive sit tenementum, sive reditus, &c. Flet. l. c. 5. §. 7.
↑ Litt. §. 10.
↑ See pag. 20.
↑ Servitus est jus, quo res mea alterius res vel personae servit. Ff. 8. 1. 1.
↑ Co. Litt. 342.
↑ Litt. §. 646.
↑ Ibid. §. 647.
↑ Ibid. §. 1.
↑ See pag. 56.
↑ l. 1. t. 9. §. 17.
↑ Co. Litt. 9, 10.
↑ Ibid. 9.
↑ See Vol. I. pag. 472.
↑ Ibid. 242.
↑ Co. Litt. 27.
↑ Flet. l. 3. c. 3. §. 5.
↑ Plowd. 241.
↑ Si quis terram haereditariam habeat, eam non vendat a cognatis haeredibus suis, si illi viro prohibitum sit, qui eam ab initio acquisivit, ut ita facere nequeat. LL. Aelfred. c. 37.
↑ Co. Litt. 19. 2 Inst. 233.
↑ Co. Litt. ibid. 2 Inst. 234.
↑ Co. Litt. 19.
↑ 1 Inst. 19.
↑ 13 Edw. I. c. 1.
↑ The expression fee-tail, or feodum talliatum, was borrowed from the feudists; (See Crag. l. 1. t. 10. §. 24, 25.) among whom it signified any mutilated or truncated inheritance, from which the heirs general were cut off; being derived from the barbarous verb taliare, to cut; from which the French tailler and the Italian tagliare are formed. (Spelm. Gloss. 531.)
↑ 2 Inst. 335.
↑ §. 13.
↑ 1 Inst. 15, 20.
↑ 7 Rep. 33.
↑ Co. Litt. 19, 20.
↑ 2 Vern. 225.
↑ 3 Rep. 8.
↑ Litt. §. 14, 15.
↑ Litt. §. 16. 26, 27, 28, 29.
↑ Ibid. §. 21, 22.
↑ Ibid. §. 24.
↑ Co. Litt. 25.
↑ Co. Litt. 20.
↑ Litt. § 31. Co. Litt. 27.
↑ Co. Litt. 9. 27.
↑ Litt. §. 17.
↑ Ibid. §. 19, 20.
↑ Co. Litt. 224.
↑ Com. Recov. 5.
↑ 1 Rep. 131.
↑ Co. Litt. 19. Moor. 156. 10 Rep. 38.
↑ 1 Rep. 131. 6 Rep. 40.
↑ 10 Rep. 37, 38.
↑ Pigott. 8.
↑ Year Book. 12 Edw. IV. 14. 19. Fitzh. Abr. tit. faux recov. 20. Bro. Abr. ibid. 30. tit. recov. in value. 19. tit. taile. 36.
↑ 11 Hen. VII. c. 20. 7 Hen. VIII. c. 4. 34 & 35 Hen. VIII. c. 20. 14 Eliz. c. 8. 4 & 5 Ann. c. 16. 14. Geo. II. c. 20.
↑ 26 Hen. VIII. c. 13.
↑ 4 Hen. VII. c. 24.
↑ Co. Litt. 372.
↑ 33 Hen. VIII. c. 39. §. 75.
↑ Stat. 21 Jac. I. c. 19.
↑ 2 Vern. 453. Chan. Prec. 16.
Chapter the eighth.
Of FREEHOLDS, NOT of INHERITANCE.
WE are next to discourse of such estates of freehold, as are not of inheritance, but for life only. And, of these estates for life, some are conventional, or expressly created by the act of the parties; others merely legal, or created by construction and operation of law[1]. We will consider them both in their order.
I. Estates for life, expressly created by deed or grant, (which alone are properly conventional) are where a lease is made of lands or tenements to a man, to hold for the term of his own life, or for that of any other person, or for more lives than one: in any of which cases he is stiled tenant for life; only, when he holds the estate by the life of another, he is usually called tenant pur auter vie[2]. These estates for life are, like inheritances, of a feodal nature; and were, for some time, the highest estate that any man could have in a feud, which (as we have before seen[3]) was not in it’s original hereditary. They are given or conferred by the same feodal rites and solemnities, the same investiture or livery of seisin, as fees themselves are; and they are held by fealty, if demanded, and such conventional rents and services as the lord or lessor, and his tenant or lessee, have agreed on.
Estates for life maybe created, not only by the express words before-mentioned, but also by a general grant, without defining or limiting any specific estate. As, if one grants to A. B. the manor of Dale, this makes him tenant for life[4]. For though, as there are no words of inheritance, or heirs, mentioned in the grant, it cannot be construed to be a fee, it shall however be construed to be as large an estate as the words of the donation will bear, and therefore an estate for life. Also such a grant at large, or a grant for term of life generally, shall be construed to be an estate for the life of the grantee[5]; in case the grantor hath authority to make such a grant: for an estate for a man’s own life is more beneficial and of a higher nature than for any other life; and the rule of law is, that all grants are to be taken most strongly against the grantor[6], unless in the case of the king.
Such estates for life will, generally speaking, endure as long as the life for which they are granted: but there are some estates for life, which may determine upon future contingencies, before the life, for which they are created, expires. As, if an estate be granted to a woman during her widowhood, or to a man until he be promoted to a benefice; in these, and similar cases, whenever the contingency happens, when the widow marries, or when the grantee obtains a benefice, the respective estates are absolutely determined and gone[7]. Yet, while they subsist, they are reckoned estates for life; because, the time for which they will endure being uncertain, they may by possibility last for life, if the contingencies upon which they are to determine do not sooner happen. And, moreover, in case an estate be granted to a man for his life, generally, it may also determine by his civil death; as if he enters into a monastery, whereby he is dead in law[8]: for which reason in conveyances the grant is usually made “for the term of a man’s natural life;” which can only determine by his natural death[9].
The incidents to an estate for life, are principally the following; which are applicable not only to that species of tenants for life, which are expressly created by deed; but also to those, which are created by act and operation of law.
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Every tenant for life, unless restrained by covenant or agreement, may of common right take upon the land demised to him reasonable estovers[10] or botes[11]. For he hath a right to the full enjoyment and use of the land, and all it’s profits, during his estate therein. But he is not permitted to cut down timber or do other waste upon the premises[12]: for the destruction of such things, as are not the temporary profits of the tenement, is not necessary for the tenant’s complete enjoyment of his estate; but tends to the permanent and lasting loss of the person entitled to the inheritance.
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Tenant for life, or his representatives, shall not be prejudiced by any sudden determination of his estate, because such determination is contingent and uncertain[13]. Therefore if a tenant for his own life sows the lands, and dies before harvest, his executors shall have the emblements, or profits of the crop: for the estate was determined by the act of God; and it is a maxim in the law, that actus Dei nemini facit injuriam. The representatives therefore of the tenant for life shall have the emblements, to compensate for the labour and expense of tilling, manuring, and sowing, the lands; and also for the encouragement of husbandry, which being a public benefit, tending to the increase and plenty of provisions, ought to have the utmost security and privilege that the law can give it. Wherefore, by the feodal law, if a tenant for life died between the beginning of September and the end of February, the lord, who was entitled to the reversion, was also entitled to the profits of the whole year; but, if he died between the beginning of March and the end of August, the heirs of the tenant received the whole[14]. From hence our law of emblements seems to have been derived, but with very considerable improvements. So it is also, if a man be tenant for the life of another, and cestuy que vie, or he on whose life the land is held, dies after the corn sown, the tenant pur auter vie shall have the emblements. The same is also the rule, if a life-estate be determined by the act of law. Therefore, if a lease be made to husband and wife during coverture, (which gives them a determinable estate for life) and the husband sows the land, and afterwards they are divorced a vinculo matrimonii, the husband shall have the emblements in this case; for the sentence of divorce is the act of law[15]. But if an estate for life be determined by the tenant’s own act, (as, by forfeiture for waste committed; or, if a tenant during widowhood thinks proper to marry) in these, and similar cases, the tenants, having thus determined the estate by their own acts, shall not be entitled to take the emblements[16]. The doctrine of emblements extends not only to corn sown, but to roots planted, or other annual artificial profit: but it is otherwise of fruit-trees, grass, and the like; which are not planted annually at the expense and labour of the tenant, but are either the permanent, or natural, profit of the earth[17]. For even when a man plants a tree, he cannot be presumed to plant it in contemplation of any present profit; but merely with a prospect of it’s being useful to future successions of tenants. The advantages also of emblements are particularly extended to the parochial clergy by the statute 28 Hen. VIII. c. 11. For all persons, who are presented to any ecclesiastical benefice, or to any civil office, are considered as tenants for their own lives, unless the contrary be expressed in the form of donation.
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A third incident to estates for life relates to the under-tenants or lessees. For they have the same, nay greater indulgences, than their lessors, the original tenants for life. The same; for the law of estovers and emblements, with regard to the tenant for life, is also law with regard to his under-tenant, who represents him and stands in his place[18]: and greater; for in those cases where tenant for life shall not have the emblements, because the estate determines by his own act, the exception shall not reach his lessee who is a third person. As in the case of a woman who holds durante viduitate; her taking husband is her own act, and therefore deprives her of the emblements: but if she leases her estate to an under-tenant, who sows the land, and she then marries, this her act shall not deprive the tenant of his emblements, who is a stranger and could not prevent her[19]. The lessees of tenants for life had also at the common law another most unreasonable advantage; for, at the death of their lessors the tenants for life, these under-tenants might if they pleased quit the premises, and pay no rent to any body for the occupation of the land since the last quarter day, or other day assigned for payment of rent[20]. To remedy which it is now enacted[21], that the executors or administrators of tenant for life, on whose death any lease determined, shall recover of the lessee a ratable proportion of rent, from the last day of payment to the death of such lessor.
II. The next estate for life is of the legal kind, as contradistinguished from conventional; viz. that of tenant in tail after possibility of issue extinct. This happens, where one is tenant in special tail, and a person, from whose body the issue was to spring, dies without issue; or, having left issue, that issue becomes extinct; in either of these cases the surviving tenant in special tail becomes tenant in tail after possibility of issue extinct. As, where one has an estate to him and his heirs on the body of his present wife to be begotten, and the wife dies without issue[22]; in this case the man has an estate-tail, which cannot possibly descend to any one; and therefore the law makes use of this long periphrasis, as absolutely necessary to give an adequate idea of his estate. For if it had called him barely tenant in fee-tail special, that would not have distinguished him from others; and besides he has no longer an estate of inheritance, or fee[23], for he can have no heirs, capable of taking per formam doni. Had it called him tenant in tail without issue, this had only related to the present fact, and would not have excluded the possibility of future issue. Had he been stiled tenant in tail without possibility of issue, this would exclude time past as well as present, and he might under this description never have had any possibility of issue. No definition therefore could so exactly mark him out, as this of tenant in tail after possibility of issue extinct, which (with a precision peculiar to our own law) not only takes in the possibility of issue in tail which he once had, but also states that this possibility is now extinguished and gone.
This estate must be created by the act of God, that is, by the death of that person out of whose body the issue was to spring; for no limitation, conveyance, or other human act can make it. For, if land be given to a man and his wife, and the heirs of their two bodies begotten, and they are divorced a vinculo matrimonii, they shall neither of them have this estate, but be barely tenants for life, notwithstanding the inheritance once vested in them[24]. A possibility of issue is always supposed to exist, in law, unless extinguished by the death of the parties; even though the donees be each of them an hundred years old[25].
This estate is of an amphibious nature, partaking partly of an estate-tail, and partly of an estate for life. The tenant is, in truth, only tenant for life, but with many of the privileges of a tenant in tail; as, not to be punishable for waste, &c[26]: or, he is tenant in tail, with many of the restrictions of a tenant for life; as, to forfeit his estate if he alienes it in fee-simple[27]: whereas such alienation by tenant in tail, though voidable by the issue, is no forfeiture of the estate to the reversioner; who is not concerned in interest, till all possibility of issue be extinct. But, in general, the law looks upon this estate as equivalent to an estate for life only; and, as such, will permit this tenant to exchange his estate with a tenant for life; which exchange can only be made, as we shall see hereafter, of estates that are equal in their nature.
III. Tenant by the curtesy of England, is where a man marries a woman seised of lands or tenements in fee-simple or fee-tail; that is, of any estate of inheritance; and has by her issue, born alive, which was capable of inheriting her estate. In this case, he shall, on the death of his wife, hold the lands for his life, as tenant by the curtesy of England[28].
This estate, according to Littleton, has it’s denomination, because it is used within the realm of England only; and it is said in the mirrour[29] to have been introduced by king Henry the first: but it appears also to have been the established law of Scotland, wherein it was called curialitas[30]: so that probably our word curtesy was understood to signify rather an attendance upon the lord’s court or curtis, (that is, being his vasal or tenant) than to denote any peculiar favour belonging to this island. And therefore it is laid down[31] that, by having issue, the husband shall be intitled to do homage to the lord, for the wife’s lands, alone. It is likewise used in Ireland, by virtue of an ordinance of king Henry III[32]. It also appears[33] to have obtained in Normandy; and was likewise used among the antient Almains or Germans[34]. And yet it is not generally apprehended to have been a consequence of feodal tenure[35], though I think some substantial feodal reasons may be given for it’s introduction. For, if a woman seised of lands hath issue by her husband, and dies, the husband is the natural guardian of the child, and as such is in reason entitled to the profits of the lands in order to maintain it: and therefore the heir apparent of a tenant by the curtesy could not be in ward to the lord of the fee, during the life of such tenant[36]. As soon therefore as any child was born, the father began to have a permanent interest in the lands, he became one of the pares curtis, and was called tenant by the curtesy initiate; and this estate being once vested in him by the birth of the child, was not liable to be determined by the subsequent death and coming of age of the infant.
There are four requisites necessary to make a tenancy by the curtesy; marriage, seisin of the wife, issue, and death of the wife[37]. 1. The marriage must be canonical, and legal. 2. The seisin of the wife must be an actual seisin, or possession of the lands; not a bare right to possess, which is a seisin in law, but an actual possession, which is a seisin in deed. And therefore a man shall not be tenant by the curtesy of a remainder or reversion. But of some incorporeal hereditaments a man may be tenant by the curtesy, though there have been no actual seisin of the wife; as in case of an advowson, where the church has not become void in the life time of the wife, which a man may hold by the curtesy, because it is impossible to have had actual seisin of it; and impotentia excusat legem[38]. If the wife be an idiot, the husband shall not be tenant by the curtesy of her lands; for the king by prerogative is entitled to them, the instant she herself has any title: and since she could never be rightfully seised of these lands, and the husband’s title depends entirely upon her seisin, the husband can have no title as tenant by the curtesy[39]. 3. The issue must be born alive. Some have had a notion that it must be heard to cry; but that is a mistake. Crying indeed is the strongest evidence of it’s being born alive; but it is not the only evidence[40]. The issue also must be born during the life of the mother; for, if the mother dies in labour, and the Caesarean operation is performed, the husband in this case shall not be tenant by the curtesy: because, at the instant of the mother’s death, he was clearly not entitled, as having had no issue born, but the land descended to the child, while he was yet in his mother’s womb; and the estate, being once so vested, shall not afterwards be taken from him[41]. In gavelkind lands, a husband may be tenant by the curtesy without having any issue[42]. But in general there must be issue born; and such issue must also be capable of inheriting the mother’s estate[43]. Therefore if a woman be tenant in tail male and hath only a daughter born, the husband is not thereby entitled to be tenant by the curtesy; because such issue female can never inherit the estate in tail male[44]. And this seems to be the true reason, why the husband cannot be tenant by the curtesy of any lands of which the wife was not actually seised: because, in order to intitle himself to such estate, he must have begotten issue that may be heir to the wife; but no one, by the standing rule of law, can be heir to the ancestor of any land, whereof the ancestor was not actually seised; and therefore, as the husband hath never begotten any issue that can be heir to those lands, he shall not be tenant of them by the curtesy[45]. And hence we may observe, with how much nicety and consideration the old rules of law were framed; and how closely they are connected and interwoven together, supporting, illustrating, and demonstrating one another. The time when the issue was born is immaterial, provided it were during the coverture: for, whether it were born before or after the wife’s seisin of the lands, whether it be living or dead at the time of the seisin, or at the time of the wife’s decease, the husband shall be tenant by the curtesy[46]. The husband by the birth of the child becomes (as was before observed) tenant by the curtesy initiate[47], and may do many acts to charge the lands; but his estate is not consummate till the death of the wife; which is the fourth and last requisite to make a complete tenant by the curtesy[48].
IV. Tenant in dower is where the husband of a woman is seised of an estate of inheritance, and dies; in this case, the wife shall have the third part of all the lands and tenements whereof he was seised during the coverture, to hold to herself for the term of her natural life[49].
Dower is called in Latin by the foreign jurists doarium, but by Bracton and our English writers dos; which among the Romans signified the marriage portion, which the wife brought to her husband; but with us is applied to signify this kind of estate, to which the civil law, in it’s original state, had nothing that bore a resemblance: nor indeed is there any thing in general more different, than the regulation of landed property according to the English, and Roman laws. Dower out of lands seems also to have been unknown in the early part of our Saxon constitution; for, in the laws of king Edmond[50], the wife is directed to be supported wholly out of the personal estate. Afterwards, as may be seen in gavelkind tenure, the widow became entitled to a conditional estate in one half of the lands, with a proviso that she remained chaste and unmarried[51]; as is usual also in copyhold dowers, or free bench. Yet some[52] have ascribed the introduction of dower to the Normans, as a branch of their local tenures; though we cannot expect any feodal reason for it’s invention, since it was not a part of the pure, primitive, simple law of feuds, but was first of all introduced into that system (wherein it was called triens, tertia[53], and dotalitium) by the emperor Frederick the second[54]; who was cotemporary with our king Henry III. It is possible therefore that it might be with us the relic of a Danish custom: since, according to the historians of that country, dower was introduced into Denmark by Swein, the father of our Canute the great, out of gratitude to the Danish ladies, who sold all their jewels to ransom him when taken prisoner by the Vandals[55]. However this be, the reason, which our law gives for adopting it, is a very plain and a sensible one; for the sustenance of the wife, and the nurture and education of the younger children[56].
In treating of this estate, let us, first, consider, who may be endowed; secondly, of what she may be endowed; thirdly, the manner how she shall be endowed; and, fourthly, how dower may be barred or prevented.
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Who may be endowed. She must be the actual wife of the party at the time of his decease. If she be divorced a vinculo matrimonii, she shall not be endowed; for ubi nullum matrimonium, ibi nulla dos[57]. But a divorce a mensa et thoro only doth not destroy the dower[58]; no, not even for adultery itself, by the common law[59]. Yet now by the statute Westm. 2.[60] if a woman elopes from her husband, and lives with an adulterer, she shall lose her dower, unless her husband be voluntarily reconciled to her. It was formerly held, that the wife of an idiot might be endowed, though the husband of an idiot could not be tenant by the curtesy[61]: but as it seems to be at present agreed, upon principles of found sense and reason, that an idiot cannot marry, being incapable of consenting to any contract, this doctrine cannot now take place. By the antient law the wife of a person attainted of treason or felony could not be endowed; to the intent, says Staunforde[62], that, if the love of a man’s own life cannot restrain him from such atrocious acts, the love of his wife and children may: though Britton[63] gives it another turn; viz. that it is presumed the wife was privy to her husband’s crime. However, the statute 1 Edw. VI. c. 12. abated the rigor of the common law in this particular, and allowed the wife her dower. But a subsequent statute[64] revived this severity against the widows of traitors, who are now barred of their dower, but not the widows of felons. An alien also cannot be endowed, unless she be queen consort; for no alien is capable of holding lands[65]. The wife must be above nine years old at her husband’s death, otherwise she shall not be endowed[66]: though in Bracton’s time the age was indefinite, and dower was then only due, “si uxor possit dotem promereri, et virum sustinere[67].”
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We are next to enquire, of what a wife may be endowed. And she is now by law entitled to be endowed of all lands and tenements, of which her husband was seised in fee-simple or fee-tail at any time during the coverture; and of which any issue, which she might have had, might by possibility have been heir[68]. Therefore if a man, seised in fee-fimple, hath a son by his first wife, and after marries a second wife, she shall be endowed of his lands; for her issue might by possibility have been heir, on the death of the son by the former wife. But, if there be a donee in special tail, who holds lands to him and the heirs of his body begotten on Jane his wife; though Jane may be endowed of these lands, yet if Jane dies, and he marries a second wife, that second wife shall never be endowed of the lands entailed; for no issue, that she could have, could by any possibility inherit them[69]. A seisin in law of the husband will be as effectual as a seisin in deed, in order to render the wife dowable; for it is not in the wife’s power to bring the husband’s title to an actual seisin, as it is in the husband’s power to do with regard to the wife’s lands: which is one reason why he shall not be tenant by the curtesy, but of such lands whereof the wife, or he himself in her right, was actually seised in deed[70]. The seisin of the husband, for a transitory instant only, when the same act which gives him the estate conveys it also out of him again, (as where by a fine land is granted to a man, and he immediately renders it back by the same fine) such a seisin will not intitle the wife to dower[71]: for the land was merely in transitu, and never rested in the husband. But, if the land abides in him for a single moment, it seems that the wife shall be endowed thereof[72]. And, in short, a widow may be endowed of all her husband’s lands, tenements, and hereditaments, corporeal or incorporeal, under the restrictions before-mentioned; unless there be some special reason to the contrary. Thus, a woman shall not be endowed of a castle, built for defence of the realm[73]: nor of a common without stint; for, as the heir would then have one portion of this common, and the widow another, and both without stint, the common would be doubly stocked[74]. Copyhold estates also are not liable to dower, being only estates at the lord’s will; unless by the special custom of the manor, in which case it is usually called the widow’s free-bench[75]. But, where dower is allowable, it matters not, though the husband aliene the lands during the coverture; for he alienes them liable to dower[76].
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Next, as to the manner in which a woman is to be endowed. There are now subsisting four species of dower; the fifth, mentioned by Littleton[77], de la plus belle, having been abolished together with the military tenures, of which it was a consequence. 1. Dower by the common law; or that which is before described. 2. Dower by particular custom[78]; as that the wife shall have half the husband’s lands, or in some places the whole, and in some only a quarter. 3. Dower ad ostium ecclesiae[79]: which is where tenant in fee-simple of full age, openly at the church door, where all marriages were formerly celebrated, after affiance made and (sir Edward Coke in his translation adds) troth plighted between them, doth endow his wife with the whole, or such quantity as he shall please, of his lands; at the same time specifying and ascertaining the same: on which the wife, after her husband’s death, may enter without farther ceremony. 4. Dower ex assensu patris[80]; which is only a species of dower ad ostium ecclesiae, made when the husband’s father is alive, and the son by his consent, expressly given, endows his wife with parcel of his father’s lands. In either of these cases, they must (to prevent frauds) be made[81] in facie ecclesiae et ad ostium ecclesiae; non enim valent facta in lecto mortali, nec in camera, aut alibi ubi clandestina fuere conjugia.
It is curious to observe the several revolutions which the doctrine of dower has undergone, since it’s introduction into England. It seems first to have been of the nature of the dower in gavelkind, before-mentioned; viz. a moiety of the husband’s lands, but forfeitable by incontinency or a second marriage. By the famous charter of Henry I, this condition, of widowhood and chastity, was only required in case the husband left any issue[82]: and afterwards we hear no more of it. Under Henry the second, according to Glanvil[83], the dower ad ostium ecclesiae was the most usual species of dower; and here, as well as in Normandy[84], it was binding upon the wife, if by her consented to at the time of marriage. Neither, in those days of feodal rigour, was the husband allowed to endow her ad ostium ecclesiae with more than the third part of the lands whereof he then was seised, though he might endow her with less; left by such liberal endowments the lord should be defrauded of his wardships and other feodal profits[85]. But if no specific dotation was made at the church porch, then she was endowed by the common law of the third part (which was called her dos rationabilis) of such lands and tenements, as the husband was seised of at the time of the espousals, and no other; unless he specially engaged before the priest to endow her of his future acquisitions[86]: and, if the husband had no lands, an endowment in goods, chattels, or money, at the time of espousals, was a bar of any dower[87] in lands which he afterwards acquired[88]. In king John’s magna carta, and the first charter of Henry III[89], no mention is made of any alteration of the common law, in respect of the lands subject to dower: but in those of 1217, and 1224, it is particularly provided, that a widow shall be intitled for her dower to the third part of all such lands as the husband had held in his life time[90]: yet, in case of a specific endowment of less ad ostium ecclesiae, the widow had still no power to waive it after her husband’s death. And this continued to be law, during the reigns of Henry III and Edward I[91]. In Henry IV’s time it was denied to be law, that a woman can be endowed of her husband’s goods and chattels[92]: and, under Edward IV, Littleton lays it down expressly, that a woman may be endowed ad ostium ecclesiae with more than a third part[93]; and shall have her election, after her husband’s death, to accept such dower, or refuse it and betake herself to her dower at common law[94]. Which state of uncertainty was probably the reason, that these specific dowers, ad ostium ecclesiae and ex assensu patris, have since fallen into total disuse.
I proceed therefore to consider the method of endowment, or assigning dower, by the common law, which is now the only usual species. By the old law, grounded on the feodal exactions, a woman could not be endowed without a fine paid to the lord; neither could she marry again without his licence; left she should contract herself, and so convey part of the feud, to the lord’s enemy[95]. This licence the lords took care to be well paid for; and, as it seems, would sometimes force the dowager to a second marriage, in order to gain the fine. But, to remedy these oppressions, it was provided, first by the charter of Henry I[96], and afterwards by magna carta[97], that the widow shall pay nothing for her marriage, nor shall be distreined to marry afresh, if she chooses to live without a husband; but shall not however marry against the consent of the lord: and farther, that nothing shall be taken for assignment of the widow’s dower, but that she shall remain in her husband’s capital mansion-house for forty days aften his death, during which time her dower shall be assigned. These forty days are called the widow’s quarentine; a term made use of in law to signify the number of forty days, whether applied to this occasion, or any other[98]. The particular lands to be held in dower, must be assigned[99] by the heir of the husband, or his guardian; not only for the sake of notoriety, but also to entitle the lord of the fee to demand his services of the heir, in respect of the lands so held. For the heir by this entry becomes tenant thereof to the lord, and the widow is immediate tenant to the heir, by a kind of subinfeudation or under-tenancy, completed by this investiture or assignment: which tenure may still be created, notwithstanding the statute of quia emptores, because the heir parts not with the fee-simple, but only with an estate for life. If the heir or his guardian do not assign her dower within the term of quarentine, or do assign it unfairly, she has her remedy at law, and the sheriff is appointed to assign it[100]. If the thing of which she is endowed be divisible, her dower must be set out by metes and bounds; but, if it be indivisible, she must be endowed specially; as, of the third presentation to a church, the third toll-dish of a mill, the third part of the profits of an office, the third sheaf of tithe, and the like[101].
Upon preconcerted marriages, and in estates of considerable consequence, tenancy in dower happens very seldom: for, the claim of the wife to her dower at the common law diffusing itself so extensively, it became a great clog to alienations, and was otherwise inconvenient to families. Wherefore, since the alteration of the antient law respecting dower ad ostium ecclesiae, which hath occasioned the intire disuse of that species of dower, jointures have been introduced in their stead, as a bar to the claim at common law. Which leads me to enquire, lastly.
- How dower may be barred or prevented. A widow may be barred of her dower not only by elopement, divorce, being an alien, the treason of her husband, and other disabilities before-mentioned, but also by detaining the title deeds, or evidences of the estate from the heir; until she restores them[102]: and, by the statute of Glocester[103], if a dowager alienes the land assigned her for dower, she forfeits it ipso facto, and the heir may recover it by action. A woman also may be barred of her dower, by levying a fine or suffering a recovery of the lands, during her coverture[104]. But the most usual method of barring dowers is by jointures, as regulated by the statute 27 Hen. VIII. c. 10.
A jointure, which strictly speaking signifies a joint estate, limited to both husband and wife, but in common acceptation extends also to a sole estate, limited to the wife only, is thus defined by sir Edward Coke[105]; “a competent livelyhood of freehold for the wife, of lands and tenements; to take effect, in profit or possession, presently after the death of the husband; for the life of the wife at least.” This description is framed from the purview of the statute 27 Hen. VIII. c. 10. before-mentioned; commonly called the statute of uses, of which we shall speak fully hereafter. At present I have only to observe, that, before the making of that statute, the greatest part of the land of England was conveyed to uses; the property or possession of the soil being vested in one man, and the use, or profits thereof, in another; whose directions, with regard to the disposition thereof, the former was in conscience obliged to follow, and might be compelled by a court of equity to observe. Now, though a husband had the use of lands in absolute fee-simple, yet the wife was not entitled to any dower therein; he not being seised thereof: wherefore it became usual, on marriage, to settle by express deed some special estate to the use of the husband and his wife, for their lives, in joint-tenancy or jointure; which settlement would be a provision for the wife in case she survived her husband. At length the statute of uses ordained, that such as had the use of lands, should, to all intents and purposes, be reputed and taken to be absolutely seised and possessed of the soil itself. In consequence of which legal seisin, all wives would have become dowable of such lands as were held to the use of their husbands, and also entitled at the same time to any special lands that might be settled in jointure; had not the same statute provided, that upon, making such an estate in jointure to the wife before marriage, she shall be for ever precluded from her dower[106]. But then these four requisites must be punctually observed. 1. The jointure must take effect immediately on the death of the husband. 2. It must be for her own life at least, and not pur auter vie, or for any term of years, or other smaller estate. 3. It must be made to herself, and no other in trust for her. 4. It must be made, and so in the deed particularly expressed to be, in satisfaction of her whole dower, and not of any particular part of it. If the jointure be made to her after marriage, she has her election after her husband’s death, as in dower ad ostium ecclesiae, and may either accept it, or refuse it and betake herself to her dower at common law; for she was not capable of consenting to it during coverture. And if, by any fraud or accident, a jointure made before marriage proves to be on a bad title, and the jointress is evicted, or turned out of possession, she shall then (by the provisions of the same statute) have her dower pro tanto at the common law[107].
There are some advantages attending tenants in dower that do not extend to jointresses; and so, vice versa, jointresses are in some respects more privileged than tenants in dower. Tenant in dower by the old common law is subject to no tolls or taxes; and hers is almost the only estate on which, when derived from the king’s debtor, the king cannot distrain for his debt; if contracted during the converture[108]. But, on the other hand, a widow may enter at once, without any formal process, on her jointure land; as she also might have done on dower ad ostium ecclesiae, which a jointure in many points resembles; and the resemblance was still greater, while that species of dower continued in it’s primitive state: whereas no small trouble, and a very tedious method of proceeding, is necessary to compel a legal assignment of dower[109]. And, what is more, though dower be forfeited by the treason of the husband, yet lands settled in jointure remain unimpeached to the widow[110]. Wherefore sir Edward Coke very justly gives it the preference, as being more sure and safe to the widow, than even dower ad ostium ecclesiae, the most eligible species of any.
↑ Wright. 190.
↑ Litt. §. 56.
↑ pag. 55.
↑ Co. Litt. 42.
↑ Ibid.
↑ Ibid. 36.
↑ Co. Litt. 42. 3 Rep. 20.
↑ 2 Rep. 48.
↑ See Vol. I. pag. 129.
↑ See pag. 35.
↑ Co. Litt. 41.
↑ Ibid. 53.
↑ Ibid. 55.
↑ Feud. l. 2. t. 28.
↑ 5 Rep. 116.
↑ Co. Litt. 55.
↑ Co. Litt. 55, 56. 1 Roll. Abr. 728.
↑ Co. Litt. 55.
↑ Cro. Eliz. 461. 1 Roll. Abr. 727.
↑ 10 Rep. 127.
↑ Stat. 11 Geo. II. c. 19. §. 15.
↑ Litt. §. 32.
↑ 1 Roll. Rep. 184. 11 Rep. 80.
↑ Co. Litt. 28.
↑ Litt. §. 34. Co. Litt. 28.
↑ Co. Litt. 27.
↑ Ibid. 28.
↑ Litt. §. 35. 52.
↑ c. 1. §. 3.
↑ Crag. l. 2. t. 19. §. 4.
↑ Litt. §. 90. Co. Litt. 30. 67.
↑ Pat. 11 H. III. m. 30. in 2 Bac. Abr. 659.
↑ Grand Coustum. c. 119.
↑ Lindenbrog. LL. Alman. t. 92.
↑ Wright. 294.
↑ F. N. B. 143.
↑ Co. Litt. 30.
↑ Ibid. 29.
↑ Co. Litt. 30. Plowd. 263.
↑ Dyer. 25. 8 Rep. 34.
↑ Co. Litt. 29.
↑ Ibid. 30.
↑ Litt. §. 56.
↑ Co. Litt. 29.
↑ Ibid. 40.
↑ Ibid. 29.
↑ Ibid. 30.
↑ Ibid.
↑ Litt. §. 36.
↑ Wilk. 73.
↑ Somner. Gavelk. 51. Co. Litt. 33. Bro. Dower. 70.
↑ Wright. 192.
↑ Crag. l. 2. t. 22. §. 9.
↑ Ibid.
↑ Mod. Un. Hist. xxxii. 91.
↑ Bract. l. 2. c. 39. Co. Litt. 30.
↑ Bract. l. 2. c. 39. §. 4.
↑ Co. Litt. 32.
↑ Yet, among the antient Goths, an adulteress was punished by the loss of her dotalitii et trientis ex bonis mobilibus viri. (Stiernh. l. 3. c. 2.)
↑ 13 Edw. I. c. 34.
↑ Co. Litt. 31.
↑ P. C. b. 3. c. 3.
↑ c. 110.
↑ 5 & 6 Edw. VI. c. 11.
↑ Co. Litt. 31.
↑ Litt. §. 36.
↑ l. 2. c. 9. §. 3.
↑ Litt. §. 36. 53.
↑ Ibid. §. 53.
↑ Co. Litt. 31.
↑ Cro. Jac. 615. 2 Rep. 67. Co. Litt. 31.
↑ This doctrine was extended very far by a jury in Wales, where the father and son were both hanged in one cart, but the son was supposed to have survived the father, by appearing to struggle longest: whereby he became seized of an estate by survivorship, in consequence of which seisin his widow had a verdict for her dower. (Cro. Eliz. 503.)
↑ Co. Litt. 31. 3 Lev. 401.
↑ Co. Litt. 32. 1 Jon. 315.
↑ 4 Rep. 22.
↑ Co. Litt. 32.
↑ §. 48, 49.
↑ Litt. §. 37.
↑ Ibid. §. 39.
↑ Ibid. §. 40.
↑ Bracton. l. 2. c. 39. §. 4.
↑ Si mortuo viro uxor ejus remanserit, et sine liberis fuerit, dotem suam habebit; — si vero uxor cum liberis remanserit, dotem quidem habebit, dum corpus suum legitime servaverit. (Cart. Hen. I. A. D. 1101. Introd. to great charter, edit. Oxon. pag. iv.)
↑ l. 6. c. 1. & 2.
↑ Gr. Coustum. c. 101.
↑ Bract. l. 2. c. 39. §. 6.
↑ De questu suo. (Glanv. ibid.) de terris acquisitis et acquirendis. (Bract. ibid.)
↑ Glanv. c. 2.
↑ When special endowments were made ad ostium ecclesiae, the husband, after affiance made, and troth plighted, used to declare with what specific lands he meant to endow his wife, (quod dotat eam de tali manerio cum pertinentiis, &c. Bract. ibid.) and therefore in the old York ritual (Seld. Ux. Hebr. l. 2. c. 27.) there is, at this part of the matrimonial service, the following rubric; “sacerdos interroget dotem mulieris; et, si terra ei in dotem detur, tunc dicatur psalmus iste, &c.” When the wife was endowed generally (ubi quis uxorem suam dotaverit in generali, de omnibus terris et tenementis; Bract. ibid.) the husband seems to have said, “with all my lands and tenements I thee endow;” and then they all became liable to her dower. When he endowed her with personalty only, he used to say, “with all my worldly goods (or, as the Salisbury ritual has it, with all my worldly chatel) I thee endow;” which intitled the wife to her thirds, or pars rationabilis, of his personal estate, which is provided for by magna carta, cap. 26. and will be farther treated of in the concluding chapter of this book: though the retaining this last expression in our modern liturgy, if of any meaning at all, can now refer only to the right of maintenance, which she acquires during coverture, out of husband’s personalty.
↑ A. D. 1126. c. 7. edit. Oxon.
↑ Assignetur autem ei pro dote sua tertia pars totius terrae mariti sui quae sua fuit in vita sua, nisi de minori dotata fuerit ad ostium ecclesiae. c. 7. (Ibid.)
↑ Bract. ubi supr. Britton. c. 101, 102. Flet. l. 5. c. 23. §. 11, 12.
↑ P. 7 Hen. IV. 13, 14.
↑ §. 39. F. N. B. 150.
↑ §. 41.
↑ Mirr. c. 1. §. 3.
↑ ubi. supra.
↑ cap. 7.
↑ It signifies, in particular, the forty days, which persons coming from infected countries are obliged to wait, before they are permitted to land in England.
↑ Co. Litt. 34, 35.
↑ Co. Litt. 34, 35.
↑ Ibid. 32.
↑ Ibid. 39.
↑ 6 Edw. I. c. 7.
↑ Pig. of recov. 66.
↑ 1 Inst. 36.
↑ 4 Rep. 1, 2.
↑ These settlements, previous to marriage, seem to have been in use among the antient Germans, and their kindred nation the Gauls. Of the former Tacitus gives us this account. “Dotem non uxor marito, sed uxori maritus affert: intersunt parentes et propinqui, et munera probant.” (de mor. Germ. c. 18.) And Caesar, (de bello Gallico, l. 6. c. 18) has given us the terms of a marriage settlement among the Gauls, as nicely calculated as any modern jointure. “Viri, quantas pecunias ab uxoribus dotis nomine acceperunt, tantas ex suis bonis, castimatione facta, cum dotibus communicant. Hujus omnis pecuniae conjunctim ratio habetur, fructusque servantur. Uter eorum vita superarit, ad eum pars utriusque cum fructibus superiorum temporum pervenit.” The dauphin’s commentator on Caesar supposes that this Gaulish custom was the ground of the new regulations made by Justinian (Nov. 97.) with regard to the provision for widows among the Romans: but surely there is as much reason to suppose, that it gave the hint for our statutable jointures.
↑ Co. Litt. 31. a. F. N. B. 150.
↑ Co. Litt. 36.
↑ Ibid. 37.
Chapter the ninth.
Of ESTATES, LESS than FREEHOLD.
OF estates, that are less than freehold, there are three sorts; 1. Estates for years: 2. Estates at will: 3. Estates by sufferance.
I. An estate for years is a contract for the possession of lands or tenements, for some determinate period: and it happens where a man letteth them to another for the term of a certain number of years, agreed upon between the lessor and the lessee[1], and the lessee enters thereon[2]. If the lease be but for half a year, or a quarter, or any less time, this lessee is respected as a tenant for years, and is stiled so in some legal proceedings; a year being the shortest term which the law in this case takes notice of[3]. And this may, not improperly, lead us into a short explanation of the division and calculation of time by the English law.
The space of a year is a determinate and well-known period, consisting commonly of 365 days: for, though in bissextile or leap-years it consists properly of 366, yet by the statute 21 Hen. III. the increasing day in the leap-year, together with the preceding day, shall be accounted for one day only. That of a month is more ambiguous: there being, in common use, two ways of calculating months; either as lunar, consisting of twenty eight days, the supposed revolution of the moon, thirteen of which make a year; or, as calendar months, of unequal lengths, according to the Julian division in our common almanacs, commencing at the calends of each month, whereof in a year there are only twelve. A month in law is a lunar month, or twenty eight days, unless otherwise expressed; not only because it is always one uniform period, but because it falls naturally into a quarterly division by weeks. Therefore a lease for “twelve months” is only for forty eight weeks; but if it be for “a twelvemonth” in the singular number, it is good for the whole year[4]. For herein the law recedes from it’s usual calculation, because the ambiguity between the two methods of computation ceases; it being generally understood that by the space of time called thus, in the singular number, a twelvemonth, is meant the whole year, consisting of one solar revolution. In the space of a day all the twenty four hours are usually reckoned; the law generally rejecting all fractions of a day, in order to avoid disputes[5]. Therefore, if I am bound to pay money on any certain day, I discharge the obligation if I pay it before twelve o’clock at night; after which the following day commences. But to return to estates for years.
These estates were originally granted to mere farmers or husbandmen, who every year rendered some equivalent in money, provisions, or other rent, to the lessors or landlords; but, in order to encourage them to manure and cultivate the ground, they had a permanent interest granted them, not determinable at the will of the lord. And yet their possession was esteemed of so little consequence, that they were rather considered as the bailiffs or servants of the lord, who were to receive and account for the profits at a settled price, than as having any property of their own. And therefore they were not allowed to have a freehold estate: but their interest (such as it was) vested after their deaths in their executors, who were to make up the accounts of their testator with the lord, and his other creditors, and were intitled to the stock upon the farm. The lessee’s estate might also, by the antient law, be at any time defeated, by a common recovery suffered by the tenant of the freehold[6]; which annihilated all leases for years then subsisting, unless afterwards renewed by the recoveror, whose title was supposed superior to his by whom those leases were granted.
While estates for years were thus precarious, it is no wonder that they were usually very short, like our modern leases upon rack rent; and indeed we are told[7] that by the antient law no leases for more than forty years were allowable, because any longer possession (especially when given without any livery declaring the nature and duration of the estate) might tend to defeat the inheritance. Yet this law, if ever it existed, was soon antiquated: for we may observe, in Madox’s collection of antient instruments, some leases for years of a pretty early date, which considerably exceed that period[8]; and long terms, for three hundred years at least, were certainty in use in the time of Edward III[9], and probably of Edward I[10]. But certainly, when by the statute 21 Hen. VIII. c. 15. the termor (that is, he who is intitled to the term of years) was protected against these fictitious recoveries, and his interest rendered secure and permanent, long terms began to be more frequent than before; and were afterwards extensively introduced, being found extremely convenient for family settlements and mortgages: continuing subject, however, to the same rules of succession, and with the same inferiority to freeholds, as when they were little better than tenancies at the will of the landlord.
Every estate which must expire at a period certain and prefixed, by whatever words created, is an estate for years. And therefore this estate is frequently called a term, terminus, because it’s duration or continuance is bounded, limited, and determined: for every such estate must have a certain beginning, and certain end[11]. But id certum est, quod certum reddi potest: therefore if a man make a lease to another, for so many years as J. S. shall name, it is a good lease for years[12]; for though it is at present uncertain, yet when J. S. hath named the years, it is then reduced to a certainty. If no day of commencement is named in the creation of this estate, it begins from the making, or delivery, of the lease[13]. A lease for so many years as J. S. shall live, is void from the beginning[14]; for it is neither certain, nor can ever be reduced to a certainty, during the continuance of the lease. And the same doctrine holds, if a parson make a lease of his glebe for so many years as he shall continue parson of Dale; for this is still more uncertain. But a lease for twenty or more years, if J. S. shall so long live, or if he shall so long continue parson, is good[15]: for there is a certain period fixed, beyond which it cannot last; though it may determine sooner, on the death of J. S. or his ceasing to be parson there.
We have before remarked, and endeavoured to assign the reason of, the inferiority in which the law places an estate for years, when compared with an estate for life, or an inheritance: observing, that an estate for life, even if it be pur auter vie, is a freehold; but that an estate for a thousand years is only a chattel, and reckoned part of the personal estate[16]. Hence it follows, that a lease for years may be made to commence in futuro, though a lease for life cannot. As, if I grant lands to Titius to hold from Michaelmas next for twenty years, this is good; but to hold from Michaelmas next for the term of his natural life, is void. For no estate of freehold can commence in futuro; because it cannot be created at common law without livery of seisin, or corporal possession of the land: and corporal possession cannot be given of an estate now, which is not to commence now, but hereafter[17]. And, because no livery of seisin is necessary to a lease for years, such lessee is not said to be seised, or to have true legal seisin, of the lands. Nor indeed does the bare lease vest any estate in the lessee; but only gives him a right of entry on the tenement, which right is called his interest in the term, or interesse termini: but when he has actually so entered, and thereby accepted the grant, the estate is then and not before vested in him, and he is possessed, not properly of the land, but of the term of years[18]: the possession or seisin of the land remaining still in him who hath the freehold. Thus the word, term, does not merely signify the time specified in the lease, but the estate also and interest that passes by that lease: and therefore the term may expire, during the continuance of the time; as by surrender, forfeiture, and the like. For which reason, if I grant a lease to A for the term of three years, and after the expiration of the said term to B for six years, and A surrenders or forfeits his lease at the end of one year, B’s interest shall immediately take effect: but if the remainder had been to B from and after the expiration of the said three years, or from and after the expiration of the said time, in this case B’s interest will not commence till the time is fully elapsed, whatever may become of A’s term[19].
Tenant for term of years hath incident to, and inseparable from his estate, unless by special agreement, the same estovers, which we formerly observed[20] that tenant for life was entitled to; that is to say, house-bote, fire-bote, plough-bote, and hay-bote[21]: terms which have been already explained[22].
With regard to emblements, or profits of land sowed by tenant for years, there is this difference between him, and tenant for life: that where the term of tenant for years depends upon a certainty, as if he holds from midsummer for ten years, and in the last year he sows a crop of corn, and it is not ripe and cut before midsummer, the end of his term, the landlord shall have it; for the tenant knew the expiration of his term, and therefore it was his own folly to sow what he never could reap the profits of[23]. But where the lease for years depends upon an uncertainty; as, upon the death of the essor, being himself only tenant for life, or being a husband seised in right of his wife; or if the term of years be determinable upon a life or lives; in all these cases, the estate for years not being certainly to expire at a time foreknown, but merely by the act of God, the tenant, or his executors, shall have the emblements in the same manner, that a tenant for life or his executors shall be intitled thereto[24]. Not so, if it determine by the act of the party himself; as if tenant for years does any thing that amounts to a forfeiture: in which case the emblements shall go to the lessor, and not to the lessee, who hath determined his estate by his own default[25].
II. The second species of estates not freehold are estates at will. An estate at will is where lands and tenements are let by one man to another, to have and to hold at the will of the lessor; and the tenant by force of this lease obtains possession[26]. Such tenant hath no certain indefeasible estate, nothing that can be assigned by him to any other; for that the lessor may determine his will, and put him out whenever he pleases. But every estate at will is at the will of both parties, landlord and tenant, so that either of them may determine his will, and quit his connexions with the other at his own pleasure[27]. Yet this must be understood with some restriction. For, if the tenant at will sows his land, and the landlord before the corn is ripe, or before it is reaped, puts him out, yet the tenant shall have the emblements, and free ingress, egress, and regress, to cut and carry away the profits[28]. And this for the same reason, upon which all the cases of emblements turn; viz. the point of uncertainty: since the tenant could not possibly know when his landlord would determine his will, and therefore could make no provision against it; and having sown the land, which is for the good of the public, upon a reasonable presumption, the law will not suffer him to be a loser by it. But it is otherwise, and upon reason equally good, where the tenant himself determines the will; for in this case the landlord shall have the profits of the land[29].
What act does, or does not, amount to a determination of the will on either side, has formerly been matter of great debate in our courts. But it is now, I think, settled, that (besides the express determination of the lessor’s will, by declaring that the lessee shall hold no longer; which must either be made upon the land[30], or notice must be given to the lessee[31]) the exertion of any act of ownership by the lessor, as entring upon the premises and cutting timber[32], taking a distress for rent and impounding them thereon[33], or making a feoffment, or lease for years of the land to commence immediately[34]; any act of desertion by the lessee, as assigning his estate to another, or committing waste, which is an act inconsistent with such a tenure[35]; or, which is instar omnium, the death or outlawry, of either lessor or lessee[36]; puts an end to or determines the estate at will.
The law is however careful, that no sudden determination of the will by one party shall tend to the manifest and unforeseen prejudice of the other. This appears in the case of emblements before-mentioned; and, by a parity of reason, the lessee after the determination of the lessor’s will, shall have reasonable ingress and egress to fetch away his goods and utensils[37]. And, if rent be payable quarterly or half-yearly, and the lessee determines the will, the rent shall be paid to the end of the current quarter or half-year[38]. And, upon the same principle, courts of law have of late years leant as much as possible against construing demises, where no certain term is mentioned, to be tenancies at will; but have rather held them to be tenancies from year to year so long as both parties please, especially where an annual rent is reserved: in which case they will not suffer either party to determine the tenancy even at the end of the year, without reasonable notice to the other.
There is one species of estates at will, that deserves a more particular regard than any others and that is, an estate held by copy of court roll; or, as we usually call it, a copyhold estate. This, as was before observed[39], was in it’s original and foundation nothing better than a mere estate at will. But, the kindness and indulgence of successive lords of manors having permitted these estates to be enjoyed by the tenants and their heirs, according to particular customs established in their respective districts; therefore, though they still are held at the will of the lord, and so are in general expressed in the court rolls to be, yet that will is qualified, restrained, and limited, to be exerted according to the custom of the manor. This custom, being suffered to grow up by the lord, is looked upon as the evidence and interpreter of his will: his will is no longer arbitrary and precarious; but fixed and ascertained by the custom to be the same, and no other, that has time out of mind been exercised and declared by his ancestors. A copyhold tenant is therefore now full as properly a tenant by the custom, as a tenant at will, the custom having arisen from a series of uniform wills. And therefore it is rightly observed by Calthorpe[40], that “copyholders and customary tenants differ not so much in nature as in name: for although some be called copyholders, some customary, some tenants by the virge, some base tenants, some bond tenants, and some by one name and some by another, yet do they all agree in substance and kind of tenure: all the aid lands are holden in one general kind, that is, by custom and continuance of time; and the diversity of their names doth not alter the nature of their tenure.”
Almost every copyhold tenant being therefore thus tenant at the will of the lord according to the custom of the manor; which customs differ as much as the humour and temper of the respective antient lords, (from whence we may account for their great variety) such tenant, I say, may have, so far as the custom warrants, any other of the estates or quantities of interest, which we have hitherto considered, or may hereafter consider, to hold united with this customary estate at will. A copyholder may, in many manors, be tenant in fee-simple, in fee-tail, for life, by the curtesy, in dower, for years, at sufferance, or on condition; subject however to be deprived of these estates upon the concurrence of those circumstances which the will of the lord, promulged by immemorial custom, has declared to be a forfeiture or absolute determination of those interests; as in some manors the want of issue male, in others the cutting down timber, the non-payment of a fine, and the like. Yet none of these interests amount to freehold; for the freehold of the whole manor abides always in the lord only[41], who hath granted out the use and occupation, but not the corporal seisin or true possession, of certain parts and parcels thereof, to these his customary tenants at will.
The reason of originally granting out this complicated kind of interest, so that the same man shall, with regard to the same land, be at one and the same time tenant in fee-simple and also tenant at the lord’s will, seems to have arisen from the nature of villenage tenure; in which a grant of any estate of freehold, or even for years absolutely, was an immediate enfranchisement of the villein[42]. The lords therefore, though they were willing to enlarge the interest of their villeins, by granting them estates which might endure for their lives, or sometimes be descendible to their issue, yet did not care to manumit them entirely; and for that reason it seems to have been contrived, that a power of resumption at the will of the lord should be annexed to these grants, whereby the tenants were still kept in a state of villenage, and no freehold at all was conveyed to them in their respective lands: and of course, as the freehold of all lands must necessarily rest and abide somewhere, the law supposes it to continue and remain in the lord. Afterwards, when these villeins became modern copyholders, and had acquired by custom a sure and indefeasible estate in their lands, on performing the usual services, but yet continued to be stiled in their admissions tenants at the will of the lord, — the law still supposed it an absurdity to allow, that such as were thus nominally tenants at will could have any freehold interest: and therefore continued, and still continues, to determine, that the freehold of lands so holden abides in the lord of the manor, and not in the tenant; for though he really holds to him and his heirs for ever, yet he is also said to hold at another’s will. But, with regard to certain other copyholders, of free or privileged tenure, which are derived from the antient tenants in villein-socage[43], and are not said to hold at the will of the lord, but only according to the custom of the manor, there is no such absurdity in allowing them to be capable of enjoying a freehold interest; and therefore the law doth not suppose the freehold of such lands to rest in the lord of whom they are holden, but in the tenants themselves[44]; who are allowed to have a freehold interest, though not a freehold tenure.
However, in common cases, copyhold estates are still ranked (for the reasons above-mentioned) among tenancies at will; though custom, which is the life of the common law, has established a permanent property in the copyholders, who were formerly nothing better than bondmen, equal to that of the lord himself, in the tenements holden of the manor: nay sometimes even superior; for we may now look upon a copyholder of inheritance, with a fine certain, to be little inferior to an absolute freeholder in point of interest, and in other respects, particularly in the clearness and fecurity of his title, to be frequently in a better situation.
III. An estate at sufferance, is where one comes into possession of land by lawful title, but keeps it afterwards without any title at all. As if a man takes a lease for a year, and, after the year is expired, continues to hold the premises without any fresh leave from the owner of the estate. Or, if a man maketh a lease at will, and dies, the estate at will is thereby determined; but if the tenant continueth possession, he is tenant at sufferance[45]. But no man can be tenant at sufferance against the king, to whom no laches, or neglect, in not entering and ousting the tenant, is ever imputed by law: but his tenant, so holding over, is considered as an absolute intruder[46]. But, in the case of a subject, this estate may be destroyed whenever the true owner shall make an actual entry on the lands and oust the tenant; for, before entry, he cannot maintain an action of trespass against the tenant by sufferance, as he might against a stranger[47]: and the reason is, because the tenant being once in by a lawful title, the law (which presumes no wrong in any man) will suppose him to continue upon a title equally lawful; unless the owner of the land by some public and avowed act, such as entry is, will declare his continuance to be tortious, or, in common language, wrongful.
Thus stands the law, with regard to tenants by sufferance; and landlords are obliged in these cases to make formal entries upon their lands[48], and recover possession by the legal process of ejectment: and at the utmost, by the common law, the tenant was bound to account for the profits of the land so by him detained. But now, by statute 4 Geo. II. c. 28. in case any tenant for life or years, or other person claiming under or by collusion with such tenant, shall wilfully hold over after the determination of the term, and demand made in writing for recovering the possession of the premises, by him to whom the remainder or reversion thereof shall belong; such person, so holding over, shall pay, for the time he continues, at the rate of double the yearly value of the lands so detained. This has almost put an end to the practice of tenancy by sufferance, unless with the tacit consent of the owner of the tenement.
↑ We may here remark, once for all, that the terminations of “—or” and “—ee” obtain, in law, the one an active, the other a passive signification; the former usually denoting the doer of any act, the latter him to whom it is done. The feoffor is he that maketh a feoffment; the feoffee is he to whom it is made: the donor is one that giveth lands in tail; the donee is he who receiveth it: he that granteth a lease is denominated the lessor; and he to whom it is granted the lessee. (Litt. §. 57.)
↑ Ibid. 58.
↑ Ibid. 67.
↑ 6 Rep. 61.
↑ Co. Litt. 135.
↑ Co. Litt. 46.
↑ Mirror. c. 2. §. 27. Co. Litt. 45, 46.
↑ Madox Formulare Anglican. №. 239. fol. 140. Demise for eighty years, 21 Ric. II. … Ibid. №. 245. fol. 146. for the like term, A. D. 1429. … Ibid. №. 248. fol. 148. for fifty years, 7 Edw. IV.
↑ 32 Aff. pl. 6.
↑ Stat. of mortmain, 7 Edw. I.
↑ Co. Litt. 45.
↑ 6 Rep. 35.
↑ Co. Litt. 46.
↑ Ibid. 45.
↑ Ibid.
↑ Ibid. 46.
↑ 5 Rep. 94.
↑ Co. Litt. 46.
↑ Ibid. 45.
↑ pag. 122.
↑ Co. Litt. 45.
↑ pag. 35.
↑ Litt. §. 68.
↑ Co. Litt. 56.
↑ Ibid. 55.
↑ Litt. §. 68.
↑ Co. Litt. 55.
↑ Co. Litt. 56.
↑ Ibid. 55.
↑ Ibid.
↑ 1 Ventr. 248.
↑ Co. Litt. 55.
↑ Ibid. 57.
↑ 1 Roll. Abr. 860. 2 Lev. 88.
↑ Co. Litt. 55.
↑ 5 Rep. 116. Co. Litt. 57. 62.
↑ Litt. §. 69.
↑ Salk. 414. 1 Sid. 339.
↑ pag. 93.
↑ on copyholds. 51. 54.
↑ Litt. §. 81. 2 Inst. 325.
↑ Mirr. c. 2. §. 28. Litt. §. 204, 5, 6.
↑ See pag. 98, &c.
↑ Fitzh. Abr. tit. corone. 310. custom. 12. Bro. Abr. tit. custom. 2. 17. tenant per copie. 22. 9 Rep. 76. Co. Litt. 59. Co. Copyh. §. 32. Cro. Car. 229. 1 Roll. Abr. 562. 2 Ventr. 143. Carth. 432. Lord Raym. 1225.
↑ Co. Litt. 57.
↑ Ibid.
↑ Ibid.
↑ 5 Mod. 384.
Chapter the tenth.
Of ESTATES upon CONDITION.
BESIDES the several divisions of estates, in point of interest, which we have considered in the three preceding chapters, there is also another species still remaining, which is called an estate upon condition; being such whose existence depends upon the happening or not happening of some uncertain event, whereby the estate may be either originally created, or enlarged, or finally defeated[1]. And these conditional estates I have chosen to reserve till last, because they are indeed more properly qualifications of other estates, than a distinct species of themselves; seeing that any quantity of interest, a fee, a freehold, or a term of years, may depend upon these provisional restrictions. Estates then upon condition, thus understood, are of two sorts: 1. Estates upon condition implied: 2. Estates upon condition expressed: under which last may be included, 3. Estates held in vadio, gage, or pledge: 4. Estates by statute merchant or statute staple: 5. Estates held by elegit.
I. Estates upon condition implied in law, are where a grant of an estate has a condition annexed to it inseparably, from it’s essence and constitution, although no condition be expressed in words. As if a grant be made to a man of an office, generally, without adding other words; the law tacitly annexes hereto a secret condition, that the grantee shall duly execute his office[2], on breach of which condition it is lawful for the grantor, or his heirs, to oust him, and grant it to another person[3]. For an office, either public or private, may be forfeited by mis-user or non-user; both of which are breaches of this implied condition. 1. By mis-user, or abuse; as if a judge takes a bribe, or a park-keeper kills deer without authority. 2. By non-user, or neglect; which in public offices, that concern the administration of justice, or the commonwealth, is of itself a direct and immediate cause of forfeiture: but non-user of a private office is no cause of forfeiture, unless some special damage is proved to be occasioned thereby[4]. For in the one case delay must necessarily be occasioned in the affairs of the public, which require a constant attention; but, private offices not requiring so regular and unremitted a service, the temporary neglect of them is not necessarily productive of mischief; upon which account some special loss must be proved, in order to vacate these. Franchises also, being regal privileges in the hands of a subject, are held to be granted on the same condition of making a proper use of them; and therefore they may be lost and forfeited, like offices, either by abuse or by neglect[5].
Upon the same principle proceed all the forfeitures which are given by law of life estates and others; for any acts done by the tenant himself, that are incompatible with the estate which he holds. As if tenants for life or years enfeoff a stranger in fee-simple: this is, by the common law, a forfeiture of their several estates; being a breach of the condition which the law annexes thereto, viz. that they shall not attempt to create a greater estate than they themselves are entitled to[6]. So if any tenants for years, for life, or in fee, commit a felony; the king or other lord of the fee is entitled to have their tenements, because their estate is determined by the breach of the condition, “that they shall not commit felony,” which the law tacitly annexes to every feodal donation.
II. An estate on condition expressed in the grant itself, is where an estate is granted, either in fee-simple or otherwise, with an express qualification annexed, whereby the estate granted shall cither commence, be enlarged, or be defeated, upon performance or breach of such qualification or condition[7]. These conditions are therefore either precedent, or subsequent. Precedent are such as must happen or be performed before the estate can vest or be enlarged; subsequent are such, by the failure or non-performance of which an estate already vested may be defeated. Thus, if an estate for life be limited to A upon his marriage with B, the marriage is a precedent condition, and till that happens no estate[8] is vested in A. Or, if a man grant to his lessee for years, that upon payment of a hundred marks within the term he shall have the fee, this also is a condition precedent, and the fee-simple passeth not till the hundred marks be paid[9]. But if a man grant an estate in fee-simple, reserving to himself and his heirs a certain rent; and that, if such rent be not paid at the times limited, it shall be lawful for him and his heirs to re-enter, and avoid the estate; in this case the grantee and his heirs have an estate upon condition subsequent, which is defeasible if the condition be not strictly performed[10]. To this class may also be referred all base fees, and fee-simples conditional at the common law[11]. Thus an estate to a man and his heirs, tenants of the manor of Dale, is an estate on condition that he and his heirs continue tenants of that manor. And so, if a personal annuity be granted at this day to a man and the heirs of his body; as this is no tenement within the statute of Westminster the second, it remains, as at common law, a fee-simple on condition that the grantee has heirs of his body. Upon the same principle depend all the determinable estates of freehold, which we mentioned in the eighth chapter; as durante viduitate, &c: these are estates upon condition that the grantees do not marry, and the like. And, on the breach of any of these subsequent conditions by the failure of these contingencies; by the grantee’s not continuing tenant of the manor of Dale, by not having heirs of his body, or by not continuing sole; the estates which were respectively vested in each grantee are wholly determined and void.
A distinction is however made between a condition in deed and a limitation, which Littleton[12] denominates also a condition in law. For when an estate is so expressly confined and limited by the words of it’s creation, that it cannot endure for any longer time than till the contingency happens upon which the estate is to fail, this is denominated a limitation: as when land is granted to a man, so long as he is parson of Dale, or while he continues unmarried, or until out of the rents and profits he shall have made 500𝑙. and the like[13]. In such cases the estate determines as soon as the contingency happens, (when he ceases to be parson, marries a wise, or has received the 500𝑙.) and the next subsequent estate, which depends upon such determination, becomes immediately vested, without any act to be done by him who is next in expectancy. But when an estate is, strictly speaking, upon condition in deed (as if granted expressly upon condition to be void upon the payment of 40𝑙. by the grantor, or so that the grantee continues unmarried, or provided he goes to York, &c.[14]) the law permits it to endure beyond the time when such contingency happens, unlefs the grantor or his heirs or assigns take advantage of the breach of the condition, and make either an entry or a claim in order to avoid the estate[15]. But, though strict words of condition be used in the creation of the estate, yet if on breach of the condition the estate be limited over to a third person, and does not immediately revert to the grantor or his representatives, (as if an estate be granted by A to B, on condition that within two years B intermarry with C, and on failure thereof then to D and his heirs) this the law construes to be a limitation and not a condition[16]: because, if it were a condition, then, upon the branch thereof, only A or his representatives could avoid the estate by entry, and so D’s remainder might be defeated by their neglecting to enter; but, when it is a limitation, the estate of B determines, and that of D commences, the instant that the failure happens. So also, if a man by his will devises land to his heir at law, on condition that he pays a sum of money, and for non-payment devises it over, this shall be considered as a limitation; otherwise no advantage could be taken of the non-payment, for none but the heir himself could have entered for a breach of condition[17].
In all these instances, of limitations or conditions subsequent, it is to be observed, that so long as the condition, either express or implied, either in deed or in law, remains unbroken, the grantee may have an estate of freehold, provided the estate upon which such condition is annexed be in itself of a freehold nature; as if the original grant express either an estate of inheritance, or for life, or no estate at all, which is constructively an estate for life. For the breach of these conditions being contingent and uncertain, this uncertainty preserves the freehold[18]; because the estate is capable to last for ever, or at least for the life of the tenant, supposing the condition to remain unbroken. But where the estate is at the utmost a chattel interest, which must determine at a time certain, and may determine sooner, (as a grant for ninety nine years, provided A, B, and C, and the survivor of them, shall so long live) this still continues a mere chattel, and is not, by it’s uncertainty, ranked among estates of freehold.
These express conditions, if they be impossible at the time of their creation, or afterwards become impossible by the act of God or the act of the feoffor himself, or if they be contrary to law, or repugnant to the nature of the estate, are void. In any of which cases, if they be conditions subsequent, that is, to be performed after the estate is vested, the estate shall become absolute in the tenant. As, if a feoffment be made to a man in fee-simple, on condition that unless he goes to Rome in twenty four hours; or unless he marries with Jane S. by such a day; (within which time the woman dies, or the feoffor marries her himself) or unless he kills another; or in case he alienes in fee; then and in any of such cases the estate shall be vacated and determine: here the condition is void, and the estate made absolute in the feoffee. For he hath by the grant the estate vested in him, which shall not be defeated afterwards by a condition either impossible, illegal, or repugnant[19]. But if the condition be precedent, or to be performed before the estate vests, as a grant to a man that, if he kills another or goes to Rome in a day, he shall have an estate in fee; here, the void condition being precedent, the estate which depends thereon is also void, and the grantee shall take nothing by the grant: for he hath no estate until the condition be performed[20].
There are some estates defeasible upon condition subsequent, that require a more peculiar notice. Such are
III. Estates held in vadio, in gage, or pledge; which are of two kinds, vivum vadium, or living pledge; and mortuum vadium, dead pledge, or mortgage.
Vivum vadium, or living pledge, is when a man borrows a sum (suppose 200𝑙.) of another; and grants him an estate, as, of 20𝑙. per annum, to hold till the rents and profits shall repay the sum so borrowed. This is an estate conditioned to be void, as soon as such sum is raised. And in this case the land or pledge is said to be living: it subsists, and survives the debt; and, immediately on the discharge of that, results back to the borrower[21]. But mortuum vadium, a dead pledge, or mortgage, (which is much more common than the other) is where a man borrows of another a specific sum (e. g. 200𝑙.) and grants him an estate in fee, on condition that if he, the mortgagor, shall repay the mortgagee the said sum of 200𝑙. on a certain day mentioned in the deed, that then the mortgagor may re-enter on the estate so granted in pledge; or, as is now the more usual way, that the mortgagee shall re-convey the estate to the mortgagor: in this case the land, which is so put in pledge, is by law, in case of non-payment at the time limited, for ever dead and gone from the mortgagor; and the mortgagee’s estate in the lands is then no longer conditional, but absolute. But, so long as it continues conditional, that is, between the time of lending the money, and the time allotted for payment, the mortgagee is called tenant in mortgage[22]. But, as it was formerly a doubt[23], whether, by taking such estate in fee, it did not become liable to the wife’s dower, and other incumbrances of the mortgagee (though that doubt has been long ago over-ruled by our courts of equity[24]) it therefore became usual to grant only a long term of years, by way of mortgage; with condition to be void on re-payment of the mortgage-money: which course has been since continued, principally because on the death of the mortgagee such term becomes vested in his personal representatives, who alone are intitled in equity to receive the money lent, of whatever nature the mortgage may happen to be.
As soon as the estate is created, the mortgagee may immediately enter on the lands; but is liable to be dispossessed, upon performance of the condition by payment of the mortgage-money at the day limited. And therefore the usual way is to agree that the mortgagor shall hold the land till the day assigned for payment; when, in case of failure, whereby the estate becomes absolute, the mortgagee may enter upon it and take possession, without any possibility at law of being afterwards evicted by the mortgagor, to whom the land is now for ever dead. But here again the courts of equity interpose; and, though a mortgage be thus forfeited, and the estate absolutely vested in the mortgagee at the common law, yet they will consider the real value of the tenements compared with the sum borrowed. And, if the estate be of greater value than the money lent thereon, they will allow the mortgagor at any reasonable time to re-call or redeem his estate; paying to the mortgagee his principal, interest, and expenses: for otherwise, in strictness of law, an estate worth 1000𝑙. might be forfeited for non-payment of 100𝑙. or a less sum. This reasonable advantage, allowed to mortgagors, is called the equity of redemption: and this enables a mortgagor to call on the mortgagee, who has possession of his estate to deliver it back and account for the rents and profits received, on payment of his whole debt and interest; thereby turning the mortuum into a kind of vivum vadium. But, on the other hand, the mortgagee may either compel the sale of the estate, in order to get the whole of his money immediately; or else call upon the mortgagor to redeem his estate presently, or, in default thereof, to be for ever foreclosed from redeeming the same; that is, to lose his equity of redemption without possibility of re-call. And also, in some cases of fraudulent mortgagees[25], the fraudulent mortgagor forfeits all equity of redemption whatsoever. It is not therefore usual for mortgagees to take possession of the mortgaged estate, unless where the security is precarious, or small; or where the mortgagor neglects even the payment of interest: when the mortgagee is frequently obliged to bring an ejectment, and take the land into his own hands, in the nature of a pledge, or the pignus of the Roman law: whereas, while it remains in the hands of the mortgagor, it more resembles their hypotheca, which was where the possession of the thing pledged remained with the debtor[26]. But, by statute 7 Geo. II. c. 20. after payment or tender by the mortgagor of principal, interest, and costs, the mortgagee can maintain no ejectment; but may be compelled to re-assign his securities. In Glanvil’s time, when the universal method of conveyance was by livery of seisin or corporal tradition of the lands, no gage or pledge of lands was good unless possession was also delivered to the creditor; “si non sequatur ipsius vadii traditio, curia domini regis hujusmodi privatas conventiones tueri non solet:” for which the reason given is, to prevent subsequent and fraudulent pledges of the same land; “cum in tali casu possit eadem res pluribus aliis creditoribus tum prius tum posterius invadiari[27].” And the frauds which have arisen, since the exchange of these public and notorious conveyances for more private and secret bargains, have well evinced the wisdom of our antient law.
IV. A fourth species of estates, defeasible on condition subsequent, are those held hy statute merchant, and statute staple; which are very nearly related to the vivum vadium before-mentioned, or estate held till the profits thereof shall discharge a debt liquidated or ascertained. For both the statute merchant and statute staple are securities for money; the one entered into pursuant to the statute 13 Edw. I. de mercatoribus, and thence called a statute merchant; the other pursuant to the statute 27 Edw. III. c. 9. before the mayor of the staple, that is to say, the grand mart for the principal commodities or manufactures of the kingdom, formerly held by act of parliament in certain trading towns[28], and thence this security is called a statute staple. They are both, I say, securities for debts, originally permitted only among traders, for the benefit of commerce; whereby the lands of the debtor are conveyed to the creditor, till out of the rents and profits of them his debt may be satisfied: and during such time as the creditor so holds the lands, he is tenant by statute merchant or statute staple. There is also a similar security, the recognizance in the nature of statute staple, which extends the benefit of this mercantile transaction to all the king’s subjects in general, by virtue of the statute 23 Hen. VIII. c. 6.
V. Another similar conditional estate, created by operation of law, for security and satisfaction of debts, is called an estate by elegit. What an elegit is, and why so called, will be explained in the third part of these commentaries. At present I need only mention, that it is the name of a writ, founded on the statute[29] of Westm. 2. by which, after a plaintiff has obtained judgment for his debt at law, the sheriff gives him possession of one half of the defendant’s lands and tenements, to be held, occupied, and enjoyed, until his debt and damages are fully paid: and, during the time he so holds them, he is called tenant by elegit. It is easy to observe, that this is also a mere conditional estate, defealible as soon as the debt is levied. But it is remarkable, that the feodal restraints of alienating lands, and charging them with the debts of the owner, were softened much earlier and much more effectually for the benefit of trade and commerce, than for any other consideration. Before the statute of quia emptores[30], it is generally thought that the proprietor of lands was enabled to alienate no more than a moiety of them: the statute therefore of Westm. 2. permits only so much of them to be affected by the process of law, as a man was capable of alienating by his own deed. But by the statute de mercatoribus (passed in the same year[31]) the whole of a man’s lands was liable to be pledged in a statute merchant, for a debt contracted in trade; though only half of them was liable to be taken in execution for any other debt of the owner.
I shall conclude what I had to remark of these estates, by statute merchant, statute staple, and elegit, with the observation of sir Edward Coke[32]. “These tenants have uncertain interests in lands and tenements, and yet they have but chattels and no freeholds;” (which makes them an exception to the general rule) “because though they may hold an estate of inheritance, or for life, ut liberum tenementum, until their debt be paid; yet it shall go to their executors: for ut is similitudinary; and though, to recover their estates, they shall have the same remedy (by assise) as a tenant of the freehold shall have, yet it is but the similitude of a freehold, and nullum simile est idem.” This indeed only proves them to be chattel interests, because they go to the executors, which is inconsistent with the nature of a freehold: but it does not assign the reason why these estates, in contradistinction to other uncertain interests, shall vest in the executors of the tenant and not the heir; which is probably owing to this: that, being a security and remedy provided for personal debts owing to the deceased, to which debts the executor is intitled, the law has therefore thus directed their succession; as judging it reasonable, from a principle of natural equity, that the security and remedy should be vested in them, to whom the debts if recovered would belong. And, upon the same principle, if lands be devised to a man’s executor, until out of their profits the debts due from the testator be discharged, this interest in the lands shall be a chattel interest, and on the death of such executor shall go to his executors[33]: because they, being liable to pay the original testator’s debts, so far as his assets will extend, are in reason intitled to possess that fund, out of which he has directed them to be paid.
↑ Co. Litt. 201.
↑ Litt. §. 378.
↑ Litt. §. 379.
↑ Co. Litt. 233.
↑ 9 Rep. 50.
↑ Co. Litt. 215.
↑ Co. Litt. 201.
↑ Show. Parl. Cas. 83, &c.
↑ Co. Litt. 217.
↑ Litt. §. 325.
↑ See pag. 109, 110, 111.
↑ §. 380. 1 Inst. 234.
↑ 10 Rep. 41.
↑ Ibid. 42.
↑ Litt. §. 347. Stat. 32 Hen. VIII. c. 34.
↑ 1 Ventr. 202.
↑ Cro. Eliz. 205. 1 Roll. Abr. 411.
↑ Co. Litt. 42.
↑ Co. Litt. 206.
↑ Ibid.
↑ Ibid. 205.
↑ Litt. §. 332.
↑ Ibid. §. 357. Cro. Car. 191.
↑ Hardr. 466.
↑ Stat. 4 & 5 W & M. c. 16.
↑ Pignoris appellatione eam proprie rem contineri dicimus, quae simul etiam traditur creditori. At eam, quae sine traditione nuda conventione tenetur, proprie hypothecae appellatione contineri dicimus. Inst. l. 4. t. 6. §. 7.
↑ l. 10. c. 8.
↑ See book I. ch. 8.
↑ 13 Edw. I. c. 18.
↑ 18 Edw. I.
↑ 13 Edw. I.
↑ 1 Inst. 42, 43.
↑ Co. Litt. 42.
Chapter the eleventh.
Of ESTATES in POSSESSION, REMAINDER,
and REVERSION.
HITHERTO we have considered estates solely with regard to their duration, or the quantity of interest which the owners have therein. We are now to consider them in another view; with regard to the time of their enjoyment, when the actual pernancy of the profits (that is, the taking, perception, or receipt, of the rents and other advantages arising therefrom) begins. Estates therefore, with respect to this consideration, may either be in possession, or in expectancy: and of expectancies there are two sorts; one created by act of the parties, called a remainder; the other by act of law, and called a reversion.
I. Of estates in possession, (which are sometimes called estates executed, whereby a present interest passes to and resides in the tenant, not depending on any subsequent circumstance or contingency, as in the case of estates executory) there is little or nothing peculiar to be observed. All the estates we have hitherto spoken of are of this kind; for, in laying down general rules, we usually apply them to such estates as are then actually in the tenant’s possession. But the doctrine of estates in expectancy contains some of the nicest and most abstruse learning in the English law. These will therefore require a minute discussion, and demand some degree of attention.
II. An estate then in remainder may be defined to be, an estate limited to take effect and be enjoyed after another estate is determined. As if a man seised in fee-simple granteth lands to A for twenty years, and, after the determination of the said term, then to B and his heirs for ever: here A is tenant for years, remainder to B in fee. In the first place an estate for years is created or carved out of the fee, and given to A; and the residue or remainder of it is given to B. But both these interests are in fact only one estate; the present term of years and the remainder afterwards, when added together, being equal only to one estate in fee[1]. They are indeed different parts, but they constitute only one whole: they are carved out of one and the same inheritance: they are both created, and may both subsist, together; the one in possession, the other in expectancy. So if land be granted to A for twenty years, and after the determination of the said term to B for life; and, after the determination of B’s estate for life, it be limited to C and his heirs for ever: this makes A tenant for years, with remainder to B for life, remainder over to C in fee. Now here the estate of inheritance undergoes a division into three portions: there is first A’s estate for years carved out of it; and after that B’s estate for life; and then the whole that remains is limited to C and his heirs. And here also the first estate, and both the remainders, for life and in fee, are one estate only; being nothing but parts or portions of one entire inheritance: and if there were a hundred remainders, it would still be the same thing; upon a principle grounded on mathematical truths that all the parts are equal, and no more than equal, to the whole. And hence also it is easy to collect, that no remainder can be limited after the grant of an estate in fee-simple[2]: because a fee-simple is the highest and largest estate, that a subject is capable of enjoying; and he that is tenant in fee hath in him the whole of the estate: a remainder therefore, which is only a portion, or residuary part, of the estate, cannot be reserved after the whole is disposed of. A particular estate, with all the remainders expectant thereon, is only one fee-simple; as 40𝑙. is part of 100𝑙. and 60𝑙. is the remainder of it: wherefore, after a fee-simple once vested, there can no more be a remainder limited thereon, than after the whole 100𝑙. is appropriated there can be any residue subsisting.
Thus much being premised, we shall be the better enabled to comprehend the rules that are laid down by law to be observed in the creation of remainders, and the reasons upon which those rules are founded.
- And, first, there must necessarily be some particular estate, precedent to the estate in remainder[3]. As, an estate for years to A, remainder to B for life; or, an estate for life to A, remainder to B in tail. This precedent estate is called the particular estate, as being only a small part, or particula, of the inheritance; the residue or remainder of which is granted over to another. The necessity of creating this preceding particular estate, in order to make a good remainder, arises from this plain reason; that remainder is a relative expression, and implies that some part of the thing is previously disposed of: for, where the whole is conveyed at once, there cannot possibly exist a remainder; but the interest granted, whatever it be, will be an estate in possession,
An estate created to commence at a distant period of time, without any intervening estate, is therefore properly no remainder: it is the whole of the gift, and not a residuary part. And such future estates can only be made of chattel interests, which were considered in the light of mere contracts by the antient law[4], to be executed either now or hereafter, as the contracting parties should agree: but an estate of freehold must be created to commence immediately. For it is an antient rule of the common law, that no estate of freehold can be created to commence in futuro; but it ought to take effect presently either in possession or remainder[5]: because at common law no freehold in lands could pass without livery of seisin; which must operate either immediately, or not at all. It would therefore be contradictory, if an estate, which is not to commence till hereafter, could be granted by a conveyance which imports an immediate possession. Therefore, though a lease to A for seven years, to commence from next Michaelmas, is good; yet a conveyance to B of lands, to hold to him and his heirs for ever from the end of three years next ensuing, is void. So that when it is intended to grant an estate of freehold, whereof the enjoyment shall be deferred till a future time, it is necessary to create a previous particular estate, which may subsist till that period of time is completed; and for the grantor to deliver immediate possession of the land to the tenant of this particular estate, which is construed to be giving possession to him in remainder, since his estate and that of the particular tenant are one and the same estate in law. As, where one leases to A for three years, with remainder to B in fee, and makes livery of seisin to A; here by the livery the freehold is immediately created, and vested in B, during the continuance of A’s term of years. The whole estate passes at once from the grantor to the grantees, and the remainder-man is seised of his remainder at the same time that the termor is possessed of his term. The enjoyment of it must indeed be deferred till hereafter; but it is to all intents and purposes an estate commencing in praesenti, though to be occupied and enjoyed in futuro.
As no remainder can be created, without such a precedent particular estate, therefore the particular estate is said to support the remainder. But a lease at will is not held to be such a particular estate, as will support a remainder over[6]. For an estate at will is of a nature so slender and precarious, that it is not looked upon as a portion of the inheritance; and a portion must first be taken out of it, in order to constitute a remainder. Besides, if it be a freehold remainder, livery of seisin must be given at the time of it’s creation; and the entry of the grantor, to do this, determines the estate at will in the very instant in which it is made[7]: or, if it be a chattel interest, though perhaps it might operate as a future contract, if the tenant for years be a party to the deed of creation, yet it is void by way of remainder: for it is a separate independent contract, distinct from the precedent estate at will; and every remainder must be part of one and the same estate, out of which the preceding particular estate is taken[8]. And hence it is generally true, that if the particular estate is void in it’s creation, or by any means is defeated afterwards, the remainder supported thereby shall be defeated also[9]: as where the particular estate is an estate for the life of a person not in esse[10]; or an estate for life upon condition, on breach of which condition the grantor enters and avoids the estate[11]; in either of these cases the remainder over is void.
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A second rule to be observed is this; that the remainder must commence or pass out of the grantor at the time of the creation of the particular estate[12]. As, where there is an estate to A for life, with remainder to B in fee: here B’s remainder in fee passes from the grantor at the same time that seisin is delivered to A of his life estate in possession. And it is this, which induces the necessity at common law of livery of seisin being made on the particular estate, whenever a freehold remainder is created. For, if it be limited even on an estate for years, it is necessary that the lessee for years should have livery of seisin, in order to convey the freehold from and out of the grantor; otherwise the remainder is void[13]. Not that the livery is necessary to strengthen the estate for years; but, as livery of the land is requisite to convey the freehold, and yet cannot be given to him in remainder without infringing the possession of the lessee for years, therefore the law allows such livery, made to the tenant of the particular estate, to relate and enure to him in remainder, as both are but one estate in law[14].
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A third rule respecting remainders is this; that the remainder must vest in the grantee during the continuance of the particular estate, or eo instanti that it determines[15]. As, if A be tenant for life, remainder to B in tail; here B’s remainder is vested in him, at the creation of the particular estate to A for life: or, if A and B be tenants for their joint lives, remainder to the survivor in fee; here, though during their joint lives the remainder is vested in neither, yet on the death of either of them, the remainder vests instantly in the survivor: wherefore both these are good remainders. But, if an estate be limited to A for life, remainder to the eldest son of B in tail, and A dies before B hath any son; here the remainder will be void, for it did not vest in any one during the continuance, nor at the determination, of the particular estate: and, even supposing that B should afterwards have a son, he shall not take by this remainder; for, as it did not vest at or before the end of the particular estate, it never can vest at all, but is gone for ever[16]. And this depends upon the principle before laid down, that the precedent particular estate and the remainder are one estate in law; they must therefore subsist and be in esse at one and the same instant of time, either during the continuance of the first estate or at the very instant when that determines, so that no other estate can possibly come between them. For there can be no intervening estate between the particular estate, and the remainder supported thereby[17]: the thing supported must fall to the ground, if once it’s support be severed from it.
It is upon these rules, but principally the last, that the doctrine of contingent remainders depends. For remainders are either vested or contingent. Vested remainders (or remainders executed, whereby a present interest passes to the party, though to be enjoyed in futuro) are where the estate is invariably fixed, to remain to a determinate person, after the particular estate is spent. As if A be tenant for twenty years, remainder to B in fee; here B’s is a vested remainder, which nothing can defeat, or set aside.
Contingent or executory remainders (whereby no present interest passes) are where the estate in remainder is limited to take effect, either to a dubious and uncertain person, or upon a dubious and uncertain event; so that the particular estate may chance to be determined, and the remainder never take effect[18].
First, they may be limited to a dubious and uncertain person. As if A be tenant for life, with remainder to B’s eldest son (then unborn) in tail; this is a contingent remainder, for it is uncertain whether B will have a son or no: but the instant that a son is born, the remainder is no longer contingent, but vested. Though, if A had died before the contingency happened, that is, before B’s son was born, the remainder would have been absolutely gone; for the particular estate was determined before the remainder could vest. Nay, by the strict rule of law, if A were tenant for life, remainder to his own eldest son in tail, and A died without issue born, but leaving his wife enseint or big with child, and after his death a posthumous son was born, this son could not take the land, by virtue of this remainder; for the particular estate determined before there was any person in esse, in whom the remainder could vest[19]. But, to remedy this hardship, it is enacted by statute 10 & 11 W. III. c. 16. that posthumous children shall be capable of taking in remainder, in the same manner as if they had been born in their father’s life-time: that is, the remainder is allowed to vest in them, while yet in their mother’s womb[20].
This species of contingent remainders, to a person not in being, must however be limited to some one, that may by common possibility, or potentia propinqua, be in esse at or before the particular estate determines[21]. As if an estate be made to A for life, remainder to the heirs of B: now, if A dies before B, the remainder is at an end; for during B’s life he has no heir, nemo est haeres viventis: but if B dies first, the remainder then immediately vests in his heir, who will be entitled to the land on the death of A. This is a good contingent remainder, for the possibility of B’s dying before A is potentia propinqua, and therefore allowed in law[22]. But a remainder to the right heirs of B (if there be no such person as B in esse) is void[23]. For here there must two contingencies happen; first, that such a person as B shall be born; and, secondly, that he shall also die during the continuance of the particular estate; which make it potentia remotissima, a most improbable possibility. A remainder to a man’s eldest son, who hath none (we have seen) is good; for by common possibility he may have one; but if it be limited in particular to his son John, or Richard, it is bad, if he have no son of that name; for it is too remote a possibility that he should not only have a son, but a son of a particular name[24]. A limitation of a remainder to a bastard before it is born, is not good[25]: for though the law allows the possibility of having bastards, it presumes it to be a very remote and improbable contingency. Thus may a remainder be contingent, on account of the uncertainty of the person who is to take it.
A remainder may also be contingent, where the person to whom it is limited is fixed and certain, but the event upon which it is to take effect is vague and uncertain. As, where land is given to A for life, and in case B survives him, then with remainder to B in fee: here B is a certain person, but the remainder to him is a contingent remainder, depending upon a dubious event, the uncertainty of his surviving A. During the joint lives of A and B it is contingent; and if B dies first, it never can vest in his heirs, but is for ever gone; but if A dies first, the remainder to B becomes vested.
Contingent remainders of either kind, if they amount to a freehold, cannot be limited on an estate for years, or any other particular estate, less than a freehold. Thus if land be granted to A for ten years, with remainder in fee to the right heirs of B, this remainder is void[26]: but if granted to A for life, with a like remainder, it is good. For, unless the freehold passes out of the grantor at the time when the remainder is created, such freehold remainder is void: it cannot pass out of him, without vesting somewhere; and in the case of a contingent remainder it must vest in the particular tenant, else it can vest no where: unless therefore the estate of such particular tenant be of a freehold nature, the freehold cannot vest in him, and consequently the remainder is void.
Contingent remainders may be defeated, by destroying or determining the particular estate upon which they depend, before the contingency happens whereby they become vested[27]. Therefore when there is tenant for life, with divers remainders in contingency, he may, not only by his death, but by alienation, surrender, or other methods, destroy and determine his own life-estate, before any of those remainders vest; the consequence of which is that he utterly defeats them all. As, if there be tenant for life, with remainder to his eldest son unborn in tail, and the tenant for life, before any son is born, surrenders his life-estate, he by that means defeats the remainder in tail to his son: for his son not being in esse, when the particular estate determined, the remainder could not then vest; and, as it could not vest then, by the rules before laid down, it never can vest at all. In these cases therefore it is necessary to have trustees appointed to preserve the contingent remainders; in whom there is vested an estate in remainder for the life of the tenant for life, to commence when his determines. If therefore his estate for life determines otherwise than by his death, their estate, for the residue of his natural life, will then take effect, and become a particular estate in possession, sufficient to support the remainders depending in contingency. This method is said to have been invented by sir Orlando Bridgman, sir Geoffery Palmer, and other eminent council, who betook themselves to conveyancing during the time of the civil wars; in order thereby to secure in family settlements a provision for the future children of an intended marriage, who before were usually left at the mercy of the particular tenant for life[28]: and when, after the restoration, those gentlemen came to fill the first offices of the law, they supported this invention within reasonable and proper bounds, and introduced it into general use.
Thus the student will observe how much nicety is required in creating and securing a remainder; and I trust he will in some measure see the general reasons, upon which this nicety is founded. It were endless to attempt to enter upon the particular subtilties and refinements, into which this doctrine, by the variety of cases which have occurred in the course of many centuries, has been spun out and subdivided: neither are they consonant to the design of these elementary disquisitions. I must not however omit, that in devises by last will and testament, (which, being often drawn up when the party is inops concilii, are always more favoured in construction than formal deeds, which are presumed to be made with great caution, fore-thought, and advice) in these devises, I say, remainders may be created in some measure contrary to the rules before laid down: though our lawyers will not allow such dispositions to be strictly remainders; but call them by another name, that of executory devises, or devises hereafter to be executed.
An executory devise of lands is such a disposition of them by will, that thereby no estate vests at the death of the devisor, but only on some future contingency. It differs from a remainder in three very material points: 1. That it needs not any particular estate to support it. 2. That by it a fee-simple or other less estate, may be limited after a fee-simple. 3. That by this means a remainder may be limited of a chattel interest, after a particular estate for life created in the same.
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The first case happens when a man devises a future estate, to arise upon a contingency; and, till that contingency happens, does not dispose of the fee-simple, but leaves it to descend to his heir at law. As if one devises land to a feme-sole and her heirs, upon her day of marriage: here is in effect a contingent remainder without any particular estate to support it; a freehold commencing in futuro. This limitation, though it would be void in a deed, yet is good in a will, by way of executory devise[29]. For, since by a devise a freehold may pass without corporal tradition or livery of seisin, (as it must do, if it passes at all) therefore it may commence in futuro; because the principal reason why it cannot commence in futuro in other cases, is the necessity of actual seisin, which always operates in praesenti. And, since it may thus commence in futuro, there is no need of a particular estate to support it; the only use of which is to make the remainder, by it’s unity with the particular estate, a present interest. And hence also it follows, that such an executory devise, not being a present interest, cannot be barred by a recovery, suffered before it commences[30].
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By executory devise a fee, or other less estate, may be limited after a fee. And this happens where a devisor devises his whole estate in fee, but limits a remainder thereon to commence on a future contingency. As if a man devises land to A and his heirs; but, if he dies before the age of twenty one, then to B and his heirs; this remainder, though void in a deed, is good by way of executory devise[31]. But, in both these species of executory devises, the contingencies ought to be such as may happen within a reasonable time; as within one or more life or lives in being, or within a moderate term of years; for courts of justice will not indulge even wills, so as to create a perpetuity, which the law abhors[32]: because by perpetuities, (or the settlement of an interest, which shall go in the succession prescribed, without any power of alienation[33]) estates are made incapable of answering those ends, of social commerce, and providing for the sudden contingencies of private life, for which property was at first established. The utmost length that has been hitherto allowed, for the contingency of an executory devise of either kind to happen in, is that of a life or lives in being, and one and twenty years afterwards. As when lands are devised to such unborn son of a feme-covert, as shall first attain the age of twenty one, and his heirs; the utmost length of time that can happen before the estate can vest, is the life of the mother and the subsequent infancy of her son: and this hath been decreed to be a good executory devise[34].
-
By executory devise a term of years may be given to one man for his life, and afterwards limited over in remainder to another, which could not be done by deed: for by law the first grant of it, to a man for life, was a total disposition of the whole term; a life estate being esteemed of a higher and larger nature than any term of years[35]. And, at first, the courts were tender, even in the case of a will, of restraining the devisee for life from aliening the term; but only held, that in case he died without exerting that act of ownership, the remainder over should then take place[36]: for the restraint of the power of alienation, especially in very long terms, was introducing a species of perpetuity. But, soon afterwards, it was held[37], that the devisee for life hath no power of aliening the term, so as to bar the remainder-man: yet in order to prevent the danger of perpetuities, it was settled[38], that, though such remainders may be limited to as many persons successively as the devisor thinks proper, yet they must all be in esse during the life of the first devisee; for then all the candles are lighted and are confuming together, and the ultimate remainder is in reality only to that remainder-man who happens to survive the rest: or, that such remainder may be limited to take effect upon such contingency only, as must happen (if at all) during the life of the first devisee[39].
Thus much for such estates in expectancy, as are created by the express words of the parties themselves; the most intricate title in the law. There is yet another species, which is created by the act and operation of the law itself, and this is called a reversion.
III. An estate in reversion is the residue of an estate left in the grantor, to commence in possession after the determination of some particular estate granted out by him[40]. Sir Edward Coke[41] describes a reversion to be the returning of land to the grantor or his heirs after the grant is over. As, if there be a gift in tail, the reversion of the fee is, without any special reservation, vested in the donor by act of law: and so also the reversion, after an estate for life, years, or at will continues in the lessor. For the fee-simple of all lands must abide somewhere; and if he, who was before possessed of the whole, carves out of it any smaller estate, and grants it away, whatever is not so granted remains in him. A reversion is never therefore created by deed or writing, but arises from construction of law; a remainder can never be limited, unless by either deed or devise. But both are equally transferable, when actually vested, being both estates in praesenti, though taking effect in futuro.
The doctrine of reversions is plainly derived from the feodal constitution. For, when a feud was granted to a man for life, or to him and his issue male, rendering either rent, or other services; then, on his death or the failure of issue male, the feud was determined and resulted back to the lord or proprietor, to be again disposed of at his pleasure. And hence the usual incidents to reversions are said to be fealty and rent. When no rent is reserved on the particular estate, fealty however results of course, as an incident quite inseparable, and may be demanded as a badge of tenure, or acknowlegement of superiority; being frequently the only evidence that the lands are holden at all. Where rent is reserved, it is also incident, though not inseparably so, to the reversion[42]. The rent may be granted away, reserving the reversion; and the reversion may be granted away, reserving the rent; by special words: but by a general grant of the reversion, the rent will pass with it, as incident thereunto; though by the grant of the rent generally, the reversion will not pass. The incident passes by the grant of the principal, but not e converso: for the maxim of law is, “accessorium non ducit, sed sequitur, suum principale[43].”
These incidental rights of the reversioner, and the respective modes of descent, in which remainders very frequently differ from reversions, have occasioned the law to be careful in distinguishing the one from the other, however inaccurately the parties themselves may describe them. For if one, seised of a paternal estate in fee, makes a lease for life, with remainder to himself and his heirs, this is properly a mere reversion[44], to which rent and fealty shall be incident; and which shall only descend to the heirs of his father’s blood, and not to his heirs general, as a remainder limited to him by a third person would have done[45]: for it is the old estate, which was originally in him, and never yet was out of him. And so likewise, if a man grants a lease for life to A, reserving rent, with reversion to B and his heirs, B hath a remainder descendible to his heirs general, and not a reversion to which the rent is incident; but the grantor shall be intitled to the rent, during the continuance of A’s estate[46].
In order to assist such persons as have any estate in remainder, reversion, or expectancy, after the death of others, against fraudulent concealments of their deaths, it is enabled by the statute 6 Ann. c. 18. that all persons on whose lives any lands or tenements are holden, shall (upon application to the court of chancery and order made thereupon) once in every year, if required, be produced to the court, or it’s commissioners; or, upon neglect or refusal, they shall be taken to be actually dead, and the person entitled to such expectant estate may enter upon and hold the lands and tenements, till the party shall appear to be living.
Before we conclude the doctrine of remainders and reversions, it may be proper to observe, that whenever a greater estate and a less coincide and meet in one and the same person, without any intermediate estate[47], the less is immediately annihilated; or, in the law phrase, is said to be merged, that is, sunk or drowned, in the greater. Thus, if there be tenant for years, and the reversion in fee-simple descends to or is purchased by him, the term of years is merged in the inheritance, and shall never exist any more. But they must come to one and the same person in one and the same right; else, if the freehold be in his own right, and he has a term in right of another (en auter droit) there is no merger. Therefore, if tenant for years dies, and makes him who hath the reversion in fee his executor, whereby the term of years vests also in him, the term shall not merge; for he hath the fee in his own right, and the term of years in the right of the testator, and subject to his debts and legacies. So also, if he who hath the reversion in fee marries the tenant for years, there is no merger; for he hath the inheritance in his own right, the lease in the right of his wife[48]. An estate-tail is an exception to this rule: for a man may have in his own right both an estate-tail and a reversion in fee; and the estate-tail, though a less estate, shall not merge in the fee[49]. For estates-tail are protected and preserved from merger by the operation and construction, though not by the express words, of the statute de donis: which operation and construction have probably arisen upon this consideration; that, in the common cases of merger of estates for life or years by uniting with the inheritance, the particular tenant hath the sole interest in them, and hath full power at any time to defeat, destroy, or surrender them to him that hath the reversion; therefore, when such an estate unites with the reversion in fee, the law considers it in the light of a virtual surrender of the inferior estate[50]. But, in an estate-tail, the case is otherwise: the tenant for a long time had no power at all over it, so as to bar or to destroy it; and now can only do it by certain special modes, by a fine, a recovery, and the like[51]: it would therefore have been strangely improvident, to have permitted the tenant in tail, by purchasing the reversion in fee, to merge his particular estate, and defeat the inheritance of his issue: and hence it has become a maxim, that a tenancy in tail, which cannot be surrendered, cannot also be merged in the fee.
↑ Co. Litt. 143.
↑ Plowd. 29. Vaugh. 269.
↑ Co. Litt. 49. Plowd. 25.
↑ Raym. 151.
↑ 5 Rep. 94.
↑ 8 Rep. 75.
↑ Dyer. 18.
↑ Raym. 151.
↑ Co. Litt. 298.
↑ 2 Roll. Abr. 415.
↑ 1 Jon. 58.
↑ Litt. §. 671. Plowd. 25.
↑ Litt. §. 60.
↑ Co. Litt. 49.
↑ Plowd. 25. 1 Rep. 66.
↑ 1 Rep. 138.
↑ 3 Rep. 21.
↑ 3 Rep. 20.
↑ Salk. 228. 4 Mod. 282.
↑ See Vol. I. pag. 126.
↑ 2 Rep. 51.
↑ Co. Litt. 378.
↑ Hob. 33.
↑ 5 Rep. 51.
↑ Cro. Eliz. 509.
↑ 1 Rep. 130.
↑ Ibid. 66. 135.
↑ See Moor. 486. 2 Roll. Abr. 797. pl. 12. 2 Sid. 159. 2 Chan. Rep. 170.
↑ 1 Sid. 153.
↑ Cro. Jac. 593.
↑ 2 Mod. 289.
↑ 12 Mod. 287. 1 Vern. 164.
↑ Salk. 229.
↑ Forr. 232.
↑ 8 Rep 95.
↑ Bro. tit. chatteles. 23. Dyer. 74.
↑ Dyer. 358. 8 Rep. 96.
↑ 1 Sid. 451.
↑ Skinn. 341. 3 P. Wms. 258.
↑ Co. Litt. 22.
↑ 1 Inst. 142.
↑ Co. Litt. 143.
↑ Ibid. 151, 152.
↑ Cro. Eliz. 321.
↑ 3 Lev. 407.
↑ 1 And. 23.
↑ 3 Lev. 437.
↑ Plow. 418. Cro. Jac. 275. Co. Litt. 338.
↑ 2 Rep. 61. 8 Rep. 74.
↑ Cro. Eliz. 302.
↑ See pag. 116.
Chapter the twelfth.
Of ESTATES in SEVERALTY, JOINT-TENANCY, COPARCENARY, and COMMON.
WE come now to treat of estates, with respect to the number and connexions of their owners, the tenants who occupy and hold them. And, considered in this view, estates of any quantity or length of duration, and whether they be in actual possession or expectancy, may be held in four different ways; in severalty, in joint-tenancy, in coparcenary, and in common.
I. He that holds lands or tenements in severalty, or is sole tenant thereof, is he that holds them in his own right only, without any other person being joined or connected with him in point of interest, during his estate therein. This is the most common and usual way of holding an estate; and therefore we may make the same observations here, that we did upon estates in possession, as contradistinguished from those in expectancy, in the preceding chapter: that there is little or nothing peculiar to be remarked concerning it, since all estates are supposed to be of this sort, unless where they are expressly declared to be otherwise; and that, in laying down general rules and doctrines, we usually apply them to such estates as are held in severalty. I shall therefore proceed to consider the other three species of estates, in which there are always a plurality of tenants.
II. An estate in joint-tenancy is where lands or tenements are granted to two or more persons, to hold in fee-simple, fee-tail, for life, for years, or at will. In consequence of such grants the estate is called an estate in joint-tenancy[1], and sometimes an estate in jointure, which word as well as the other signifies a union or conjunction of interest; though in common speech the term, jointure, is now usually confined to that joint estate, which by virtue of the statute 27 Hen. VIII. c. 10. is frequently vested in the husband and wife before marriage, as a full satisfaction and bar of the woman’s dower[2].
In unfolding this title, and the two remaining ones in the present chapter, we will first enquire, how these estates may be created; next, their properties and respective incidents; and lastly, how they may be severed or destroyed.
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The creation of an estate in joint-tenancy depends on the wording of the deed or devise, by which the tenants claim title; for this estate can only arise by purchase or grant, that is, by the act of the parties, and never by the mere act of law. Now, if an estate be given to a plurality of persons, without adding any restrictive, exclusive, or explanatory words, as if an estate be granted to A and B and their heirs, this makes them immediately joint-tenants in fee of the lands. For the law interprets the grant so as to make all parts of it take effect, which can only be done by creating an equal estate in them both. As therefore the grantor has thus united their names, the law gives them a thorough union in all other respects. For,
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The properties of a joint estate are derived from it’s unity, which is fourfold; the unity of interest, the unity of title, the unity of time, and the unity of possession: or, in other words, joint-tenants have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession.
First, they must have one and the same interest. One joint-tenant cannot be entitled to one period of duration or quantity of interest in lands, and the other to a different: one cannot be tenant for life, and the other for years: one cannot be tenant in fee, and the other in tail[3]. But, if land be limited to A and B for their lives, this makes them joint-tenants of the freehold; if to A and B and their heirs, it makes them joint-tenants of the inheritance[4]. If land be granted to A and B for their lives and to the heirs of A; here A and B are joint-tenants of the freehold during their respective lives, and A has the remainder of the fee in severalty: or, if land be given to A and B, and the heirs of the body of A; here both have a joint estate for life, and A hath a several remainder in tail[5]. Secondly, joint-tenants must also have an unity of title: their estate must be created by one and the same act, whether legal or illegal; as by one and the same grant, or by one and the same disseisin[6]. Joint-tenancy cannot arise by descent or act of law; but merely by purchase, or acquisition by the act of the party: and, unless that act be one and the same, the two tenants would have different titles; and if they had different titles, one might prove good, and the other bad, which would absolutely destroy the jointure. Thirdly, there must also be an unity of time: their estates must be vested at one and the same period, as well as by one and the same title. As in case of a present estate made to A and B; or a remainder in fee to A and B after a particular estate; in either case A and B are joint-tenants of this present estate, or this vested remainder. But if, after a lease for life, the remainder be limited to the heirs of A and B; and during the continuance of the particular estate A dies, which vests the remainder of one moiety in his heir; and then B dies, whereby the other moiety becomes vested in the heir of B: now A’s heir and B’s heir are not joint-tenants of this remainder, but tenants in common; for one moiety vested at one time, and the other moiety vested at another[7]. Yet, where a feoffment was made to the use of a man, and such wife as he should afterwards marry, for term of their lives, and he afterwards married; in this case it seems to have been held that the husband and wife had a joint estate, though vested at different times[8]: because the use of the wife’s estate was in abeyance and dormant till the intermarriage; and, being then awakened, had relation back, and took effect from the original time of creation. Lastly, in joint-tenancy, there must be an unity of possession. Joint-tenants are said to be seised per my et per tout, by the half or moiety, and by all; that is, they each of them have the entire possession, as well of every parcel as of the whole[9]. They have not, one of them a seisin of one half or moiety, and the other of the other moiety; neither can one be exclusively seised of one acre, and his companion of another; but each has an undivided moiety of the whole, and not the whole of an undivided moiety[10].
Upon these principles, of a thorough and intimate union of interest and possession, depend many other consequences and incidents to the joint-tenant’s estate. If two joint-tenants let a verbal lease of their land, reserving rent to be paid to one of them, it shall enure to both, in respect of the joint reversion[11]. If their lessee surrenders his lease to one of them, it shall also enure to both, because of the privity, or relation of their estate[12]. On the same reason, livery of seisin made to one joint-tenant, shall enure to both of them[13]: and the entry, or re-entry, of one joint-tenant is as effectual in law as if it were the act of both[14]. In all actions also relating to their joint estate, one joint-tenant cannot sue or be sued without joining the other[15]. But if two or more joint-tenants be seised of an advowson, and they present different clerks, the bishop may refuse to admit either; because neither joint-tenant hath a several right of patronage, but each is seised of the whole: and, if they do not both agree within six months, the right of presentation shall lapse. But the ordinary may, if he pleases, admit a clerk presented by either, for the good of the church, that divine service may be regularly performed; which is no more than he otherwise would be entitled to do, in case their disagreement continued, so as to incur a lapse: and, if the clerk of one joint-tenant be so admitted, this shall keep up the title in both of them; in respect of the privity and union of their estate[16]. Upon the same ground it is held, that one joint-tenant cannot have an action against another for trespass, in respect of his land[17]; for each has an equal right to enter on any part of it. But one joint-tenant is not capable by himself to do any act, which may tend to defeat or injure the estate of the other; as to let leases, or to grant copyholds[18]: and, if any waste be done, which tends to the destruction of the inheritance, one joint-tenant may have an action of waste against the other, by construction of the statute Westm. 2. c. 22[19]. So too, though at common law no action of account lay for one joint-tenant against another, unless he had constituted him his bailiff or receiver[20], yet now by the statute 4 Ann. c. 16. joint-tenants may have actions of account against each other, for receiving more than their due share of the profits of the tenements held in joint-tenancy.
From the same principle also arises the remaining grand incident of joint estates; viz. the doctrine of survivorship: by which, when two or more persons are seised of a joint estate of inheritance, for their own lives, or pur auter vie, or are jointly possessed of any chattel interest, the entire tenancy upon the decease of any of them remains to the survivors, and at length to the last survivor; and he shall be entitled to the whole estate, whatever it be, whether an inheritance or a common freehold only, or even a less estate[21]. This is the natural and regular consequence of the union and entirety of their interest. The interest of two joint-tenants is not only equal or similar, but also is one and the same. One has not originally a distinct moiety from the other; but, if by any subsequent act (as by alienation or forfeiture of either) the interest becomes separate and distinct, the joint-tenancy instantly ceases. But, while it continues, each of two joint-tenants has a concurrent interest in the whole; and therefore, on the death of his companion, the sole interest in the whole remains to the survivor. For the interest, which the survivor originally had, is clearly not devested by the death of his companion; and no other person can now claim to have a joint estate with him, for no one can now have an interest in the whole, accruing by the same title, and taking effect at the same time with his own; neither can any one claim a separate interest in any part of the tenements; for that would be to deprive the survivor of the right which he has in all, and every part. As therefore the survivor’s original interest in the whole still remains; and as no one can now be admitted, either jointly or severally, to any share with him therein; it follows, that his own interest must now be entire and several, and that he shall alone be entitled to the whole estate (whatever it be) that was created by the original grant.
This right of survivorship is called by our antient authors[22] the jus accrescendi, because the right, upon the death of one joint-tenant, accumalates and increases to the survivors; or, as they themselves express it, “pars illa communis accrescit superstitibus, de persona in personam, usque ad ultimum superstitem.” And this jus accrescendi ought to be mutual; which I apprehend to be the reason why neither the king[23], nor any corporation[24], can be a joint-tenant with a private person. For here is no mutuality: the private person has not even the remotest chance of being seised of the entirety, by benefit of survivorship, for the king and the corporation can never die.
- We are, lastly, to enquire, how an estate in joint-tenancy may he severed and destroyed. And this may be done by destroying any of it’s constituent unities. 1. That of time, which respects only the original commencement of the joint estate, cannot indeed (being now past) be affected by any subsequent transactions. But, 2. The joint-tenants’ estate may be destroyed, without any alienation, by merely disuniting their possession. For joint-tenants being seised per my et per tout, every thing that tends to narrow that interest, so that they shall not be seised throughout the whole, and throughout every part, is a severance or destruction of the jointure. And therefore, if two joint-tenants agree to part their lands, and hold them in severalty, they are no longer joint-tenants; for they have now no joint-interest in the whole, but only a several interest respectively in the several parts. And, for that reason also, the right of survivorship is by such separation destroyed[25]. By common law all the joint-tenants might agree to make partition of the lands, but one of them could not compel the others so to do[26]: for, this being an estate originally created by the act and agreement of the parties, the law would not permit any one or more of them to destroy the united possession without a similar universal consent[27]. But now by the statutes 31 Hen. VIII. c. 1. and 32 Hen. VIII. c. 32. joint-tenants, either of inheritances or other less estates, are compellable by writ of partition to divide their lands. 3. The jointure may be destroyed, by destroying the unity of title. As if one joint-tenant alienes and conveys his estate to a third person: here the joint-tenancy is severed, and turned into tenancy in common[28]; for the grantee and the remaining joint-tenant hold by different titles, (one derived from the original, the other from the subsequent, grantor) though, till partition made, the unity of possession continues. But a devise of one’s share by will is no severance of the jointure: for no testament takes effect till after the death of the testator, and by such death the right of the survivor (which accrued at the original creation of the estate, and has therefore a priority to the other[29]) is already vested[30]. 4. It may also be destroyed, by destroying the unity of interest. And therefore, if there be two joint-tenants for life, and the inheritance is purchased by or descends upon either, it is a severance of the jointure[31]: though, if an estate is originally limited to two for life, and after to the heirs of one of them, the freehold shall remain in jointure, without merging in the inheritance; because, being created by one and the same conveyance, they are not separate estates, (which is requisite in order to a merger) but branches of one intire estate[32]. In like manner, if a joint-tenant in fee makes a lease for life of his share, this defeats the jointure[33]; for it destroys the unity both of title and of interest. And, whenever or by whatever means the jointure ceases or is severed, the right of survivorship or jus accrescendi the same instant ceases with it[34]. Yet, if one of three joint-tenants alienes his share, the two remaining tenants still hold their parts by joint-tenancy and survivorship[35]: and, if one of three joint-tenants releases his share to one of his companions, though the joint-tenancy is destroyed with regard to that part, yet the two remaining parts are still held in jointure[36]; for they still preserve their original constituent unities. But when, by an act or event, different interests are created in the several parts of the estate, or they are held by different titles, or if merely the possession is separated; so that the tenants have no longer these four indispensable properties, a sameness of interest, an undivided possession, a title vesting at one and the same time, and by one and the same act or grant; the jointure is instantly dissolved.
In general it is advantageous for the joint-tenants to dissolve the jointure; since thereby the right of survivorship is taken away, and each may transmit his own part to his own heirs. Sometimes however it is disadvantageous to dissolve the joint-estate: as if there be joint-tenants for life, and they make partition, this dissolves the jointure; and, though before they each of them had an estate in the whole for their own lives and the life of their companion, now they have an estate in a moiety only for their own lives merely; and, on the death of either, the reversioner shall enter on his moiety[37]. And therefore, if there be two joint-tenants for life, and one grants away his part for the life of his companion, it is a forfeiture[38]: for, in the first place, by the severance of the jointure he has given himself in his own moiety only an estate for his own life; and then he grants the same land for the life of another: which grant, by a tenant for his own life merely, is a forfeiture of his estate[39]; for it is creating an estate which may by possibility last longer than that which he is legally entitled to.
III. An estate held in coparcenary is where lands of inheritance descend from the ancestor to two or more persons. It arises either by common law, or particular custom. By common law: as where a person seised in fee-simple or in fee-tail dies, and his next heirs are two or more females, his daughters, sisters, aunts, cousins, or their representatives; in this case they shall all inherit, as will be more fully shewn, when we treat of descents hereafter: and these co-heirs are then called coparceners; or, for brevity, parceners only[40]. Parceners by particular custom are where lands descend, as in gavelkind, to all the males in equal degree, as sons, brothers, uncles, &c[41]. And, in either of these cases, all the parceners put together make but one heir; and have but one estate among them[42].
The properties of parceners are in some respects like those of joint-tenants; they having the same unities of interest, title, and possession. They may sue and be sued jointly for matters relating to their own lands[43]: and the entry of one of them shall in some cases enure as the entry of them all[44]. They cannot have an action of trespass against each other: but herein they differ from joint-tenants, that they are also excluded from maintaining an action of waste[45]; for coparceners could at all times put a stop to any waste by a writ of partition, but till the statute of Henry the eighth joint-tenants had no such power. Parceners also differ materially from joint-tenants in four other points: 1. They always claim by descent, whereas joint-tenants always claim by purchase. Therefore if two sisters purchase lands, to hold to them and their heirs, they are not parceners, but joint-tenants[46]: and hence it likewise follows, that no lands can be held in coparcenary, but estates of inheritance, which are of a descendible nature; whereas not only estates in fee and in tail, but for life or years, may be held in joint-tenancy. 2. There is no unity of time necessary to an estate in coparcenary. For if a man hath two daughters, to whom his estate descends in coparcenary, and one dies before the other; the surviving daughter and the heir of the other, or, when both are dead, their two heirs, are still parceners[47]; the estates vesting in each of them at different times, though it be the same quantity of interest, and held by the same title. 3. Parceners, though they have a unity, have not an entirety, of interest. They are properly intitled each to the whole of a distinct moiety[48]; and of course there is no jus accrescendi, or survivorship between them: for each part descends severally to their respective heirs, though the unity of possession continues. And as long as the lands continue in a course of descent, and united in possession, so long are the tenants thereof, whether male or female, called parceners. But if the possession be once severed by partition, they are no longer parceners, but tenants in severalty; or if one parcener alienes her share, though no partition be made, then are the lands no longer held in coparcenary, but in common[49].
Parceners are so called, saith Littleton[50], because they may be constrained to make partition. And he mentions many methods of making it[51]; four of which are by consent, and one by compulsion. The first is, where they agree to divide the lands into equal parts in severalty, and that each shall have such a determinate part. The second is, when they agree to chuse some friend to make partition for them, and then the lifters shall chuse each of them her part according to seniority of age; or otherwise, as shall be agreed. But this privilege of seniority is then personal; for if the eldest sister be dead, her issue shall not chuse first, but the next sister. But, if an advowson descend in coparcenary, and the sisters cannot agree in the presentation, the eldest and her issue, nay her husband, or her assigns, shall present alone, before the younger[52]. And the reason given is that the former privilege, of priority in choice upon a division, arises from an act of her own, the agreement to make partition; and therefore is merely personal: the latter, of presenting to the living, arises from the act of the law, and is annexed not only to her person, but to her estate also. A third method of partition is, where the eldest divides, and then she shall chuse last; for the rule of law is, cujus est divisio, alterius est electio. The fourth method is where the sisters agree to cast lots for their shares. And these are the methods by consent. That by compulsion is, where one or more sue out a writ of partition against the others, whereupon the sheriff shall go to the lands, and make partition thereof by the verdict of a jury there impanneled, and assign to each of the parceners her part in severalty[53]. But there are some things which are in their nature impartible. The mansion-house, common of estovers, common of piscary uncertain, or any other common without stint, shall not be divided; but the eldest sister, if she pleases, shall have them, and make the others a reasonable satisfaction in other parts of the inheritance; or, if that cannot be, then they shall have the profits of the thing by turns, in the same manner as they take advowson[54].
There is yet another consideration attending the estate in coparcenary; that if one of the daughters has had an estate given with her in frankmarriage by her ancestor (which we may remember was a species of estates-tail, freely given by a relation for advancement of his kinswoman in marriage[55]) in this case, if lands descend from the same ancestor to her and her sisters in fee-simple, she or her heirs shall have no share of them, unless they will agree to divide the lands so given in frankmarriage in equal proportion with the rest of the lands descending[56]. This general division was known in the law of the Lombards[57], which direct the woman so preferred in marriage, and claiming her share of the inheritance, mittere in confusum cum sororibus, quantum pater aut frater et dederit, quando ambulaverit ad maritum. With us it is denominated bringing those lands into hotchpot[58]; which term I shall explain in the very words of Littleton[59]: “it seemeth that this word, hotchpot, is in English, a pudding; for in a pudding is not commonly put one thing alone, but one thing with other things together.” By this housewifely metaphor our ancestors meant to inform us[60], that the lands, both those given in frankmarriage and those descending in fee-simple, should be mixed and blended together, and then divided in equal portions among all the daughters. But this was left to the choice of the donee in frankmarriage, and if she did not chuse to put her lands in hotchpot, she was presumed to be sufficiently provided for, and the rest of the inheritance was divided among her other sisters. The law of hotchpot took place then only, when the other lands descending from the ancestor were fee-simple; for, if they descended in tail, the donee in frankmarriage was entitled to her share, without bringing her lands so given into hotchpot[61]. And the reason is, because lands descending in fee-simple are distributed by the policy of law, for the maintenance of all the daughters; and, if one has a sufficient provision out of the same inheritance, equal to the rest, it is not reasonable that she should have more: but lands, descending in tail, are not distributed by the operation of law, so properly as per formam doni; it matters not therefore how unequal this distribution may be. Also no lands, but such as are given in frankmarriage, shall be brought into hotchpot; for no others are looked upon in law as given for the advancement of the woman, or by way of marriage-portion[62]. And therefore, as gifts in frankmarriage are fallen into disuse, I should hardly have mentioned the law of hotchpot, had not this method of division been revived and copied by the statute for distribution of personal estates, which we shall hereafter consider at large.
The estate in coparcenary may be dissolved, either by partition, which disunites the possession; by alienation of one parcener, which disunites the title, and may disunite the interest; or by the whole at last descending to and vesting in one single person, which brings it to an estate in severalty.
IV. Tenants in common are such as hold by several and distinct titles, but by unity of possession; because none knoweth his own severalty, and therefore they all occupy promiscuously[63]. This tenancy therefore happens, where there is an unity of possession merely, but perhaps an entire disunion of interest, of title, and of time. For, if there be two tenants in common of lands, one may hold his part in fee-simple, the other in tail, or for life; so that there is no necessary unity of interest: one may hold by descent, the other by purchase; or the one by purchase from A, the other by purchase from B; so that there is no unity of title: one’s estate may have been vested fifty years, the other’s but yesterday; so there is no unity of time. The only unity there is, is that of possession; and for this Littleton gives the true reason, because no man can certainly tell which part is his own: otherwise even this would soon be destroyed.
Tenancy in common may be created, either by the destruction of the two other estates, in joint-tenancy and coparcenary, or by special limitation in a deed. By the destruction of the two other estates, I mean such destruction as does not fever the unity of possession, but only the unity of title or interest. As, if one of two joint-tenants in fee alienes his estate for the life of the alienee, the alienee and the other joint-tenant are tenants in common: for they now have several titles, the other joint-tenant by the original grant, the alienee by the new alienation[64]; and they also have several interests, the former joint-tenant in fee-simple, the alienee for his own life only. So, if one joint-tenant give his part to A in tail, and the other gives his to B in tail, the donees are tenants in common, as holding by different titles and conveyances[65]. If one of two parceners alienes, the alienee and the remaining parcener are tenants in common[66]; because they hold by different titles, the parcener by descent, the alienee by purchase. So likewise, if there be a grant to two men, or two women, and the heirs of their bodies, here the grantees shall be joint-tenants of the life-estate, but they shall have several inheritances; because they cannot possibly have one heir of their two bodies, as might have been the case had the limitation been to a man and woman, and the heirs of their bodies begotten[67]: and in this, and the like cases, their issues shall be tenants in common; because they must claim by different titles, one as heir of A, and the other as heir of B; and those too not titles by purchase, but descent. In short, whenever an estate in joint-tenancy or coparcenary is dissolved, so that there be no partition made, but the unity of possession continues, it is turned into a tenancy in common.
A tenancy in common may also be created by express limitation in a deed: but here care must be taken not to insert words which imply a joint estate; and then if lands be given to two or more, and it be not joint-tenancy, it must be a tenancy in common. But the law is apt in it’s constructions to favour joint-tenancy rather than tenancy in common[68]; because the divisible services issuing from land (as rent, &c) are not divided, nor the entire services (as fealty) multiplied, by joint-tenancy, as they must necessarily be upon a tenancy in common. Land given to two, to be holden the one moiety to one, and the other moiety to the other, is an estate in common[69]; and, if one grants to another half his land, the grantor and grantee are also tenants in common[70]: because, as has been before[71] observed, joint-tenants do not take by distinct halves or moieties; and by such grants the division and severalty of the estate is so plainly expressed, that it is impossible they should take a joint interest in the whole of the tenements. But a devise to two persons, to hold jointly and severally, is a joint-tenancy; because that is implied in the word “jointly,” even though the word “severally” seems to imply the direct reverse[72]: and an estate given to A and B, equally to be divided between them, though in deeds it hath been said to be a joint-tenancy[73], (for it implies no more than the law has annexed to that estate, viz. divisibility[74]) yet in wills it is certainly a tenancy in common[75]; because the devisor may be presumed to have meant what is most beneficial to both the devisees, though his meaning is imperfectly expressed. And this nicety in the wording of grants makes it the most usual as well as the safest way, when a tenancy in common is meant to be created, to add express words of exclusion as well as description, and limit the estate to A and B, to hold as tenants in common, and not as joint-tenants.
As to the incidents attending a tenancy in common: tenants in common (like joint-tenants) are compellable by the statutes of Henry VIII and William III, before-mentioned[76], to make partition of their lands; which they were not at common law. They properly take by distinct moieties, and have no entirety of interest; and therefore there is no survivorship between tenants in common. Their other incidents are such as merely arise from the unity of possession; and are therefore the same as appertain to joint-tenants merely upon that account: such as being liable to reciprocal actions of waste, and of account, by the statutes of Westm. 2. c. 22. and 4 Ann. c. 16. For by the common law no tenant in common was liable to account to his companion for embezzling the profits of the estate[77]; though, if one actually turns the other out of possession, an action of ejectment will lie against him[78]. But, as for other incidents of joint-tenants, which arise from the privity of title, or the union and entirety of interest, (such as joining or being joined in actions[79], unless in the case where some intire or indivisible thing is to be recovered[80]) these are not applicable to tenants in common, whose interests are distinct, and whose titles are not joint but several.
Estates in common can only be dissolved two ways: 1. By uniting all the titles and interests in one tenant, by purchase or otherwise; which brings the whole to one severalty: 2. By making partition between the several tenants in common, which gives them all respective severalties. For indeed tenancies in common differ in nothing from sole estates, but merely in the blending and unity of possession. And this finishes our enquiries with respect to the nature of estates.
↑ Litt. §. 277.
↑ See pag. 137.
↑ Co. Litt. 188.
↑ Litt. §. 277.
↑ Ibid. §. 285.
↑ Ibid. §. 278.
↑ Co. Litt. 188.
↑ Dyer. 340. 1 Rep. 101.
↑ Litt. §. 288. 5 Rep. 10.
↑ Quilibet totum tenet et nihil tenet; scilicet, totum in communi, et nihil separatim per se. Bract. l. 5. tr. 5. c. 26.
↑ Co. Litt. 214.
↑ Ibid. 192.
↑ Ibid. 49.
↑ Ibid. 319. 364.
↑ Ibid. 195.
↑ Co. Litt. 185.
↑ 3 Leon. 262.
↑ 1 Leon. 234.
↑ 2 Inst. 403.
↑ Co. Litt. 200.
↑ Litt. §. 280, 281.
↑ Bracton. l. 4. tr. 3. c. 9. §. 3. Fleta. l. 3. c. 4.
↑ Co. Litt. 190. Finch L. 83.
↑ 2 Lev. 12.
↑ Co. Litt. 188. 193.
↑ Litt. §. 290.
↑ Thus, by the civil law, nemo invitus compellitur ad communionem. (Ff. 12. 6. 26. 4.) And again: si non omnes qui rem communem habent, sed certi ex his, dividere desiderant; hoc judicium inter cos accipi potest. (Ff. 10. 3. 8.)
↑ Litt. §. 292.
↑ Jus accrescendi praefertur ultimae voluntati. Co. Litt. 185.
↑ Litt. §. 287.
↑ Cro. Eliz. 470.
↑ 2 Rep. 60. Co. Litt. 182.
↑ Litt. §. 302, 303.
↑ Nihil de re accrescit ei, qui nihil in re quando jus accresceret habet. Co. Litt. 188.
↑ Litt. §. 294.
↑ Ibid. §. 304.
↑ 1 Jones. 55.
↑ 4 Leon, 237.
↑ Co. Litt. 232.
↑ Litt. §. 241, 242.
↑ Ibid. §. 265.
↑ Co. Litt. 163.
↑ Co. Litt. 164.
↑ Ibid. 188.
↑ 2 Inst. 403.
↑ Litt. §. 254.
↑ Co. Litt. 164. 174.
↑ Ibid. 163, 164.
↑ Litt. §. 309.
↑ §. 241.
↑ §. 243 to 264.
↑ Co. Litt. 166. 3 Rep. 22.
↑ By statute 8 & 9 W. III. c. 3. An easier method of carrying on the proceedings on a writ of partition, of lands held either in joint-tenancy, parcenary, or common, than was used at the common law, is chalked out and provided.
↑ Co. Litt. 164, 165.
↑ See pag. 115.
↑ Bracton. l. 2. c. 34. Litt. §. 266 to 273.
↑ l. 2. t. 14. c. 15.
↑ Britton. c. 72.
↑ §. 267.
↑ Litt. §. 268.
↑ Litt. §. 274.
↑ Ibid. 275.
↑ Ibid. 292.
↑ Litt. §. 293.
↑ Ibid. 295.
↑ Ibid. 309.
↑ Ibid. 283.
↑ Salk. 392.
↑ Litt. §. 298.
↑ Ibid. 299.
↑ See pag. 182.
↑ Poph. 52.
↑ 1 Equ. Cas. abr. 291.
↑ 1 P. Wms. 17.
↑ 3 Rep. 39. 1 Ventr. 32.
↑ pag. 185, & 186.
↑ Co. Litt. 199.
↑ Ibid. 200.
↑ Litt. §. 311.
↑ Co. Litt. 197.
Chapter the thireenth.
Of the TITLE to THINGS REAL, in general.
THE foregoing chapters having been principally employed in defining the nature of things real, in describing the tenures by which they may be holden, and in distinguishing the several kinds of estate or interest that may be had therein, I come now to consider, lastly, the title to things real, with the manner of acquiring and losing it. A title is thus defined by sir Edward Coke[1], titulus est justa causa possidendi id quod nostrum est; or, it is the means whereby the owner of lands hath the just possession of his property.
There are several stages or degrees requisite to form a complete title to lands and tenements. We will consider them in a progressive order.
I. The lowest and most imperfect degree of title consists in the mere naked possession, or actual occupation of the estate; without any apparent right, or any shadow or pretence of right, to hold and continue such possession. This may happen, when one man invades the possession of another, and by force or surprize turns him out of the occupation of his lands; which is termed a disseisin, being a deprivation of that actual seisin, or corporal freehold of the lands, which the tenant before enjoyed. Or it may happen, that after the death of the ancestor and before the entry of the heir, or after the death of a particular tenant and before the entry of him in remainder or reversion, a stranger may contrive to get possession of the vacant land, and hold out him that had a right to enter. In all which cases, and many others that might be here suggested, the wrongdoer has only a mere naked possession, which the rightful owner may put an end to, by a variety of legal remedies, as will more fully appear in the third book of these commentaries. But in the mean time, till some act be done by the rightful owner to devest this possession and assert his title, such actual possession is, prima facie, evidence of a legal title in the possessor; and it may, by length of time, and negligence of him who hath the right, by degrees ripen into a perfect and indefeasible title. And, at all events, without such actual possession no title can be completely good.
II. The next step to a good and perfect title is the right of possession, which may reside in one man, while the actual possession is either in himself or in another. For if a man be disseised, or otherwise kept out of possession, by any of the means before-mentioned, though the actual possession be lost, yet he has still remaining in him the right of possession; and may exert it whenever he thinks proper, by entering upon the disseisor, and turning him out of that occupancy which he has so illegally gained. But the right of possession is of two sorts: an apparent right of possession, which may be defeated by proving a better; and an actual right of possession, which will stand the test against all opponents. Thus if the disseisor, or other wrongdoer, dies possessed of the land whereof he so became seised by his own unlawful act, and the same descends to his heir; now, by the common law, the heir hath obtained an apparent right, though the actual right of possession resides in the person disseised; and it shall not be lawful for the person disseised to devest this apparent right by mere entry or other act of his own, but only by an action at law[2]. For, until the contrary be proved by legal demonstration, the law will rather presume the right to reside in the heir, whose ancestor died seised, than in one who has no such presumptive evidence to urge in his own behalf. Which doctrine in some measure arose from the principles of the feodal law, which, after feuds became hereditary, much favoured the right of descent; in order that there might be a person always on the spot to perform the feodal duties and services[3]: and therefore, when a feudatory died in battle, or otherwise, it presumed always that his children were entitled to the feud, till the right was otherwise determined by his fellow-soldiers and fellow-tenants, the peers of the feodal court. But if he, who has the actual right of possession, puts in his claim and brings his action within a reasonable time, and can prove by what unlawful means the ancestor became seised, he will then by sentence of law recover that possession, to which he hath such actual right. Yet, if he omits to bring this his possessory action within a competent time, his adversary may imperceptibly gain an actual right of possession, in consequence of the other’s negligence. And by this, and certain other means, the party kept out of possession may have nothing left in him, but what we are next to speak of; viz.
III. The mere right of property, the jus proprietatis, without either possession or even the right of possession. This is frequently spoken of in our books under the name of the mere right, jus merum; and the estate of the owner is in such cases said to be totally devested; and put to a right[4]. A person in this situation may have the true ultimate property of the lands in himself: but by the intervention of certain circumstances, either by his own negligence, the solemn act of his ancestor, or the determination of a court of justice, the presumptive evidence of that right is strongly in favour of his antagonist; who has thereby obtained the absolute right of possession. As, in the first place, if a person disseised, or turned out of possession of his estate, neglects to pursue his remedy within the time limited by law: by this means the disseisor or his heirs gain the actual right of possession: for the law presumes that either he had a good right originally, in virtue of which he entered on the lands on question, or that since such his entry he has procured a sufficient titles and therefore, after so long an acquiescence, the law will not suffer his possession to be disturbed without enquiring into the absolute right of property. Yet, still, if the person disseised or his heir hath the true right of property remaining in himself, his estate is indeed said to be turned into a mere right; but, by proving such his better right, he may at length recover the lands. Again; if a tenant in tail discontinues his estate-tail, by alienating the lands to a stranger in fee, and dies; here the issue in tail hath no right of possession, independent of the right of property: for the law presumes prima facie that the ancestor would not disinherit, or attempt to disinherit, his heir, unless he had power so to do; and therefore, as the ancestor had in himself the right of possession, and has transferred the same to a stranger, the law will not permit that possession now to be disturbed, unless by shewing the absolute right of property to reside in another person. The heir therefore in this case has only a mere right, and must be strictly held to the proof of it, in order to recover the lands. Lastly, if by accident, neglect, or otherwise, judgment is given for either party in any possessory action, (that is, such wherein the right of possession only, and not that of property, is contested) and the other party hath indeed in himself the right of property, this is now turned to a mere right; and upon proof thereof in a subsequent action, denominated a writ of right, he shall recover his seisin of the lands.
Thus, if a disseisor turns me out of possession of my lands, he thereby gains a mere naked possession, and I still retain the right of possession, and right of property. If the disseisor dies, and the lands descend to his son, the son gains an apparent right of possession; but I still retain the actual right both of possession and property. If I acquiesce for thirty years, without bringing any action to recover possession of the lands, the son gains the actual right of possession, and I retain nothing but the mere right of property. And even this right of property will fail, or at least it will be without a remedy, unless I pursue it within the space of sixty years. So also if the father be tenant in tail, and alienes the estate-tail to a stranger in fee, the alienee thereby gains the right of possession, and the son hath only the mere right or right of property. And hence it will follow, that one man may have the possession, another the right of possession, and a third the right of property. For if tenant in tail enfeoffs A in fee-simple, and dies, and B disseises A; now B will have the possession, A the right of possession, and the issue in tail the right of property: A may recover the possession against B; and afterwards the issue in tail may evict A, and unite in himself the possession, the right of possession, and also the right of property. In which union consists,
IV. A complete title to lands, tenements, and hereditaments. For it is an antient maxim of the law[5], that no title is completely good, unless the right of possession be joined with the right of property; which right is then denominated a double right, jus duplicatum, or droit droit[6]. And when to this double right the actual possession is also united, when there is, according to the expression of Fleta[7], juris et seisinae conjunctio, then, and then only, is the title completely legal.
↑ 1 Inst. 345.
↑ Litt. §. 385.
↑ Gilb. Ten. l8.
↑ Co. Litt. 345.
↑ Mirr. l. 2. c. 27.
↑ Co. Litt. 266. Bract. l. 5. tr. 3. c. 5.
↑ l. 3. c. 15. §. 5.
Chapter the fourteenth.
Of TITLE by DESCENT.
THE several gradations and stages, requisite to form a complete title to lands, tenements, and hereditaments, having been briefly stated in the preceding chapter, we are next to consider the several manners, in which this complete title (and therein principally the right of propriety) may be reciprocally lost and acquired: whereby the dominion of things real is either continued, or transferred from one man to another. And here we must first of all observe, that (as gain and loss are terms of relation, and of a reciprocal nature) by whatever method one man gains an estate, by that same method or it’s correlative some other man has lost it. As where the heir acquires by descent, the ancestor has first lost or abandoned the estate by his death: where the lord gains land by escheat, the estate of the tenant is first of all lost by the natural or legal extinction of all his hereditary blood: where a man gains an interest by occupancy, the former owner has previously relinquished his right of possession: where one man claims by prescription or immemorial usage, another man has either parted with his right by an antient and now forgotten grant, or has forfeited it by the supineness or neglect of himself and his ancestors for ages: and so, in case of forfeiture, the tenant by his own misbehaviour or neglect has renounced his interest in the estate; whereupon it devolves to that person who by law may take advantage of such default: and, in alienation by common assurances, the two considerations of loss and acquisition are so interwoven, and so constantly contemplated together, that we never hear of a conveyance, without at once receiving the idea as well of the grantor as the grantee.
The methods therefore of acquiring on the one hand, and of losing on the other, a title to estates in things real, are reduced by our law to two: descent, where the title is vested in a man by the single operation of law; and purchase, where the title is vested in him by his own act or agreement[1].
Descent, or hereditary succession, is the title whereby a man on the death of his ancestor acquires his estate by right of representation, as his heir at law. An heir therefore is he upon whom the law casts the estate immediately on the death of the ancestor: and an estate, so descending to the heir, is in law called the inheritance.
The doctrine of descents, or law of inheritances in fee-simple, is a point of the highest importance; and is indeed the principal object of the laws of real property in England. All the rules relating to purchases, whereby the legal course of descents is broken and altered, perpetually refer to this settled law of inheritance, as a datum or first principle universally known, and upon which their subsequent limitations are to work. Thus a gift in tail, or to a man and the heirs of his body, is a limitation that cannot be perfectly understood without a previous knowlege of the law of descents in fee-simple. One may well perceive, that this is an estate confined in it’s descent to such heirs only of the donee, as have sprung or shall spring from his body; but who those heirs are, whether all his children both male and female, or the male only, and (among the males) whether the eldest, youngest, or other son alone, or all the sons together, shall be his heir; this is a point, that we must result back to the standing law of descents in fee-simple to be informed of.
In order therefore to treat a matter of this universal consequence the more clearly, I shall endeavour to lay aside such matters as will only tend to breed embarassment and confusion in our enquiries, and shall confine myself entirely to this one object. I shall therefore decline considering at present who are, and who are not, capable of being heirs; reserving that for the chapter of escheats. I shall also pass over the frequent division of descents, into those by custom, statute, and common law: for descents by particular custom, as to all the sons in gavelkind, and to the youngest in borough-english, have already been often[2] hinted at, and may also be incidentally touched upon again; but will not make a separate consideration by themselves, in a system so general as the present: and descents by statute, or fee-tail per formam doni, in pursuance of the statute of Westminster the second, have also been already[3] copiously handled; and it has been seen that the descent in tail is restrained and regulated according to the words of the original donation, and does not intirely pursue the common law doctrine of inheritance; which, and which only, it will now be our business to explain.
And, as this depends not a little on the nature of kindred, and the several degrees of consanguinity, it will be previously necessary to state, as briefly as possible, the true notion of this kindred or alliance in blood[4].
Consanguinity, or kindred, is defined by the writers on these subjects to be “vinculum personarum ab eodem stipite descendentium”; the connexion or relation of persons descended from the same stock or common ancestor. This consanguinity is either lineal, or collateral.
Lineal consanguinity is that which subsists between persons, of whom one is descended in a direct line from the other: as between John Stiles (the propositus in the table of consanguinity) and his father, grandfather, great-grandfather, and so upwards in the direct ascending line; or between John Stiles and his son, grandson, great-grandson, and so downwards in the direct descending line. Every generation, in this lineal direct consanguinity, constitutes a different degree, reckoning either upwards or downwards: the father of John Stiles is related to him in the first degree, and so likewise is his son; his grandsire and grandson in the second; his great-grandsire, and great-grandson in the third. This is the only natural way of reckoning the degrees in the direct line, and therefore universally obtains, as well in the civil[5], and canon[6], as in the common law[7].
The doctrine of lineal consanguinity is sufficiently plain and obvious; but it is at the first view astonishing to consider the number of lineal ancestors which every man has, within no very great number of degrees: and so many different bloods[8] is a man said to contain in his veins, as he hath lineal ancestors. Of these he hath two in the first ascending degree, his own parents; he hath four in the second, the parents of his father, and the parents of his mother; he hath eight in the third, the parents of his two grandfathers and two grandmothers; and, by the same rule of progression, he hath an hundred and twenty eight in the seventh; a thousand and twenty four in the tenth; and at the twentieth degree, or the distance of twenty generations, every man hath above a million of ancestors, as common arithmetic will demonstrate[9]. This lineal consanguinity, we may observe, falls strictly within the definition of vinculum personarum ab eodem stipite descendentium; since lineal relations are such as descend one from the other, and both of course from the same common ancestor.
Collateral kindred answers to the same description: collateral relations agreeing with the lineal in this, that they descend from the same stock or ancestor; but differing in this, that they do not descend from each other. Collateral kinsmen are such then as lineally spring from one and the same ancestor, who is the stirps, or root, the stipes, trunk, or common stock, from whence these relations are branched out. As if John Stiles hath two sons, who have each a numerous issue; both these issues are lineally descended from John Stiles as their common ancestor; and they are collateral kinsmen to each other, because they are all descended from this common ancestor, and all have a portion of his blood in their veins, which denominates them consanguineos.
We must be careful to remember, that the very being of collateral consanguinity consists in this descent from one and the same common ancestor. Thus Titius and his brother are related; why? because both are derived from one father: Titius and his first cousin are related; why? because both descend from the same grandfather: and his second cousin’s claim to consanguinity is this, that they both are derived from one and the same great-grandfather. In short, as many ancestors as a man has, so many common stocks he has, from which collateral kinsmen may be derived. And as we are taught by holy writ, that there is one couple of ancestors belonging to us all, from whence the whole race of mankind is descended, the obvious and undeniable consequence is, that all men are in some degree related to each other. For indeed, if we only suppose each couple of our ancestors to have left, one with another, two children; and each of those children on an average to have left two more; (and, without such a supposition, the human species must be daily diminishing) we shall find that all of us have now subsisting near two hundred and seventy millions of kindred in the fifteenth degree, at the same distance from the several common ancestors as ourselves are; besides those that are one or two descents nearer to or farther from the common stock, who may amount to as many more[10]. And, if this calculation should appear incompatible with the number of inhabitants on the earth, it is because, by intermarriages among the several descendants from the same ancestor, a hundred or a thousand modes of consanguinity may be consolidated in one person, or he may be related to us a hundred or a thousand different ways.
The method of computing these degrees in the canon law[11], which our law has adopted[12], is as follows. We begin at the common ancestor, and reckon downwards; and in whatsoever degree the two persons, or the most remote of them, is distant from the common ancestor, that is the degree in which they are related to each other. Thus Titius and his brother are related in the first degree; for from the father to each of them is counted only one: Titius and his nephew are related in the second degree; for the nephew is two degrees removed from the common ancestor; viz. his own grandfather, the father of Titius. Or, (to give a more illustrious instance from our English annals) king Henry the seventh, who slew Richard the third in the battle of Bosworth, was related to that prince in the fifth degree. Let the propositus therefore in the table of consanguinity represent king Richard the third, and the class marked (e) king Henry the seventh. Now their common stock or ancestor was king Edward the third, the abavus in the same table: from him to Edmond duke of York, the proavus, is one degree; to Richard earl of Cambridge, the avus, two; to Richard duke of York, the pater, three; to king Richard the third, the propositus, four: and from king Edward the third to John of Gant (a) is one degree; to John earl of Somerset (b) two; to John duke of Somerset (c) three; to Margaret countess of Richmond (d) four; to king Henry the seventh (e) five. Which last mentioned prince, being the farthest removed from the common stock, gives the denomination to the degree of kindred in the canon and municipal law. Though according to the computation of the civilians, (who count upwards, from either of the persons related, to the common stock, and then downwards again to the other; reckoning a degree for each person both ascending and descending) these two princes were related in the ninth degree: for from king Richard the third to Richard duke of York is one degree; to Richard earl of Cambridge, two; to Edmond duke of York, three; to king Edward the third, the common ancestor, four; to John of Gant, five; to John earl of Somerset, six; to John duke of Somerset, seven; to Margaret countess of Richmond, eight; to king Kenry the seventh, nine[13].
The nature and degrees of kindred being thus in some measure explained, I shall next proceed to lay down a series of rules, or canons of inheritance, according to which estates are transmitted from the ancestor to the heir; together with an explanatory comment, remarking their original and progress, the reasons upon which they are founded, and in some cases their agreement with the laws of other nations.
I. The first rule is, that inheritances shall lineally descend to the issue of the person last actually seised, in infinitum; but shall never lineally ascend.
To explain the more clearly both this and the subsequent rules, it must first be observed, that by law no inheritance can vest, nor can any person be the actual complete heir of another, till the ancestor is previously dead. Nemo est haeres viventis. Before that time the person who is next in the line of succession is called an heir apparent, or heir presumptive. Heirs apparent are such, whose right of inheritance is indefeasible, provided they outlive the ancestor; as the eldest son or his issue, who must by the course of the common law be heirs to the father whenever he happens to die. Heirs presumptive are such, who, if the ancestor should die immediately, would in the present circumstances of things be his heirs; but whose right of inheritance may be defeated by the contingency of some nearer heir being born: as a brother, or nephew, whose presumptive succession may be destroyed by the birth of a child; or a daughter, whose present hopes may be hereafter cut off by the birth of a son. Nay, even if the estate hath descended, by the death of the owner, to such brother, or nephew, or daughter; in the former cases the estate shall be devested and taken away by the birth of a posthumous child; and, in the latter, it shall also be totally devested by the birth of a posthumous son[14].
We must also remember, that no person can be properly such an ancestor, as that an inheritance in lands or tenements can be derived from him, unless he hath had actual seisin of such lands, either by his own entry, or by the possession of his own or his ancestor’s lessee for years, or by receiving rent from a lessee of the freehold[15]: or unless he hath had what is equivalent to corporal seisin in hereditaments that are incorporeal; such as the receipt of rent, a presentation to the church in case of an advowson[16], and the like. But he shall not be accounted an ancestor, who hath had only a bare right or title to enter or be otherwise seised. And therefore all the cases, which will be mentioned in the present chapter, are upon the supposition that the deceased (whose inheritance is now claimed) was the last person actually seised thereof. For the law requires this notoriety of possession, as evidence that the ancestor had that property in himself, which is now to be transmitted to his heir. Which notoriety hath succeeded in the place of the antient feodal investiture, whereby, while feuds were precarious, the vasal on the descent of lands was formerly admitted in the lord’s court (as is still the practice in Scotland) and there received his seisin, in the nature of a renewal of his ancestors grant, in the presence of the feodal peers: till at length, when the right of succession became indefeasible, an entry on any part of the lands within the county (which if disputed was afterwards to be tried by those peers) or other notorious possession, was admitted as equivalent to the formal grant of seisin, and made the tenant capable of transmitting his estate by descent. The seisin therefore of any person, thus understood, makes him the root or stock, from which all future inheritance by right of blood must be derived: which is very briefly expressed in this maxim, seisina facit stipitem[17].
When therefore a person dies so seised, the inheritance first goes to his issue: as if there be Geoffrey, John, and Matthew, grandfather, father, and son; and John purchases land and dies; his son Matthew shall succeed him as heir, and not the grandfather Geoffrey; to whom the land shall never ascend, but shall rather escheat to the lord[18].
This rule, so far as it is affirmative and relates to lineal descents, is almost universally adopted by all nations; and it seems founded on a principle of natural reason, that (whenever a right of property transmissible to representatives is admitted) the possessions of the parents should go, upon their decease, in the first place to their children, as those to whom they have given being, and for whom they are therefore bound to provide. But the negative branch, or total exclusion of parents and all lineal ancestors from succeeding to the inheritance of their offspring, is peculiar to our own laws, and such as have been deduced from the same original. For, by the Jewish law, on failure of issue the father succeeded to the son, in exclusion of brethren, unless one of them married the widow and raised up feed to his brother[19]. And, by the laws of Rome, in the first place the children or lineal descendants were preferred; and, on failure of these, the father and mother or lineal ascendants succeeded together with the brethren and sisters[20]; though by the law of the twelve tables the mother was originally, on account of her sex, excluded[21]. Hence this rule of our laws has been censured and declaimed against, as absurd and derogating from the maxims of equity and natural justice[22]. Yet that there is nothing unjust or absurd in it, but that on the contrary it is founded upon very good reason, may appear from considering as well the nature of the rule itself, as the occasion of introducing it into our laws.
We are to reflect, in the first place, that all rules of succession to estates are creatures of the civil polity, and juris positivi merely. The right of property, which is gained by occupancy, extends naturally no farther than the life of the present possessor; after which the land by the law of nature would again become common, and liable to be seised by the next occupant: but society, to prevent the mischiefs that might ensue from a doctrine so productive of contention, has established conveyances, wills, and successions; whereby the property originally gained by possession is continued, and transmitted from one man to another, according to the rules which each state has respectively thought proper to prescribe. There is certainly therefore no injustice done to individuals, whatever be the path of descent marked out by the municipal law.
If we next consider the time and occasion of introducing this rule into our law, we shall find it to have been grounded upon very substantial reasons. I think there is no doubt to be made, but that it was introduced at the same time with, and in consequence of, the feodal tenures. For it was an express rule of the feodal law[23], that successionis feudi talis est natura, quod ascendentes non succedunt; and therefore the same maxim obtains also in the French law to this day[24]. Our Henry the first indeed, among other restorations of the old Saxon laws, restored the right of succession in the ascending line[25]: but this soon fell again into disuse; for so early as Glanvil’s time, who wrote under Henry the second, we find it laid down as established law[26], that haereditas nunquam ascendit; which has remained an invariable maxim ever since. These circumstances evidently shew this rule to be of feodal original; and, taken in that light, there are some arguments in it’s favour, besides those which are drawn merely from the reason of the thing. For if the feud, of which the son died seised, was really feudum antiquum, or one descended to him from his ancestors, the father could not possibly succeed to it, because it must have passed him in the course of descent, before it could come to the son; unless it were feudum maternum, or one descended from his mother, and then for other reasons (which will appear hereafter) the father could in no wife inherit it. And if it were feudum novum, or one newly acquired by the son, then only the descendants from the body of the feudatory himself could succeed, by the known maxim of the early feodal constitutions[27]; which was founded as well upon the personal merit of the vasal, which might be transmitted to his children but could not ascend to his progenitors, as also upon this consideration of military policy, that the decrepit grandsire of a vigorous vasal would be but indifferently qualified to succeed him in his feodal services. Nay, even if this feudum novum were held by the son ut feudum antiquum, or with all the qualities annexed of a feud descended from his ancestors, such feud must in all respects have descended as if it had been really an antient feud; and therefore could not go to the father, because, if it had been an antient feud, the father must have been dead before it could have come to the son. Thus whether the feud was strictly novum, or strictly antiquum, or whether is was novum held ut antiquum, in none of these cases the father could possibly succeed. These reasons, drawn from the history of the rule itself, seem to be more satisfactory than that quaint one of Bracton[28], adopted by sir Edward Coke[29], which regulates the descent of lands according to the laws of gravitation.
II. A second general rule or canon is, that the male issue shall be admitted before the female.
Thus sons shall be admitted before daughters; or, as our male lawgivers have somewhat uncomplaisantly expressed it, the worthiest of blood shall be preferred[30]. As if John Stiles hath two sons, Matthew and Gilbert, and two daughters, Margaret and Charlotte, and dies; first Matthew, and (in case of his death without issue) then Gilbert, shall be admitted to the succession in preference to both the daughters.
This preference of males to females is entirely agreeable to the law of succession among the Jews[31], and also among the states of Greece, or at least among the Athenians[32]; but was totally unknown to the laws of Rome[33], (such of them, I mean, as are at present extant) wherein brethren and sisters were allowed to succeed to equal portions of the inheritance. I shall not here enter into the comparative merit of the Roman and the other constitutions in this particular, nor examine into the greater dignity of blood in the male or female sex; but shall only observe, that our present preference of males to females seems to have arisen entirely from the feodal law. For though our British ancestors, the Welch, appear to have given a preference to males[34], yet our subsequent Danish predecessors seem to have made no distinction of sexes, but to have admitted all the children at once to the inheritance[35]. But the feodal law of the Saxons on the continent (which was probably brought over hither, and first altered by the law of king Canute) gives an evident preference of the male to the female sex. “Pater aut mater, defuncti, filio non filiae haereditatem relinquent… Qui defunctus non filios sed filias reliquerit, ad eas omnis haereditas pertineat[36].” It is possible therefore that this preference might be a branch of that imperfect system of feuds, which obtained here before the conquest; especially as it subsists among the customs of gavelkind, and as, in the charter or laws of king Henry the first, it is not (like many Norman innovations) given up, but rather enforced[37]. The true reason of preferring the males must be deduced from feodal principles: for, by the genuine and original policy of that constitution, no female could ever succeed to a proper feud[38], inasmuch as they were incapable of performing those military services, for the sake of which that system was established. But our law does not extend to a total exclusion of females, as the Salic law, and others, where feuds were most strictly retained: it only postpones them to males; for, though daughters are excluded by sons, yet they succeed before any collateral relations: our law, like that of the Saxon feudists before-mentioned, thus steering a middle course, between the absolute rejection of females, and the putting them on a footing with males.
III. A third rule or canon of descent is this; that, where there are two or more males in equal degree, the eldest only shall inherit; but the females all together.
As if a man hath two sons, Matthew and Gilbert, and two daughters, Margaret and Charlotte, and dies; Matthew his eldest son shall alone succeed to his estate, in exclusion of Gilbert the second son and both the daughters: but, if both the sons die without issue before the father, the daughters Margaret and Charlotte shall both inherit the estate as coparceners[39].
This right of primogeniture in males seems antiently to have only obtained among the Jews, in whose constitution the eldest son had a double portion of the inheritance[40]; in the same manner as with us, by the laws of king Henry the first[41], the eldest son had the capital fee or principal feud of his father’s possessions, and no other pre-eminence; and as the eldest daughter had afterwards the principal maniion, when the estate descended in coparcenary[42]. The Greeks, the Romans, the Britons, the Saxons, and even originally the feudists, divided the lands equally; some among all the children at large, some among the males only. This is certainly the most obvious and natural way; and has the appearance, at least in the opinion of younger brothers, of the greatest impartiality and justice. But when the emperors began to create honorary feuds, or titles of nobility, it was found necessary (in order to preserve their dignity) to make them impartible[43], or (as they stiled them) feuda individua, and in consequence descendible to the eldest son alone. This example was farther enforced by the inconveniences that attended the splitting of estates; namely, the division of the military services, the multitude of infant tenants incapable of performing any duty, the consequential weakening of the strength of the kingdom, and the inducing younger sons to take up with the business and idleness of a country life, instead of being serviceable to themselves and the public, by engaging in mercantile, in military, in civil, or in ecclesiastical employments[44]. These reasons occasioned an almost total change in the method of feodal inheritances abroad; so that the eldest male began universally to succeed to the whole of the lands in all military tenures: and in this condition the feodal constitution was established in England by William the conqueror.
Yet we find, that socage estates frequently descended to all the sons equally, so lately as when Glanvil[45] wrote, in the reign of Henry the second; and it is mentioned in the mirror[46] as a part of our antient constitution, that knights’ fees should descend to the eldest son, and socage fees should be partible among the male children. However in Henry the third’s time we find by Bracton[47] that socage lands, in imitation of lands in chivalry, had almost entirely fallen into the right of succession by primogeniture, as the law now stands: except in Kent, where they gloried in the preservation of their antient gavelkind tenure, of which a principal branch was the joint inheritance of all the sons[48]; and except in some particular manors and townships, where their local customs continued the descent, sometimes to all, sometimes to the youngest son only, or in other more singular methods of succession.
As to the females, they are still left as they were by the antient law: for they were all equally incapable of performing any personal service; and therefore, one main reason of preferring the eldest ceasing, such preference would have been injurious to the rest: and the other principal purpose, the prevention of the too minute subdivision of estates, was left to be considered and provided for by the lords, who had the disposal of these female heiresses in marriage. However, the succession by primogeniture, even among females, took place as to the inheritance of the crown[49]; wherein the necessity of a sole and determinate succession is as great in the one sex as the other. And the right of sole succession, though not of primogeniture, was also established with respect to female dignities and titles of honour. For if a man holds an earldom to him and the heirs of his body, and dies, leaving only daughters; the eldest shall not of course be countess, but the dignity is in suspense or abeyance till the king shall declare his pleasure; for he, being the fountain of honour, may confer it on which of them he pleases[50]. In which disposition is preserved a strong trace of the antient law of feuds, before their descent by primogeniture even among the males was established; namely, that the lord might bestow them on which of the sons he thought proper: — “progressum est, ut ad filios deveniret, in quem scilicet dominus hoc vellet beneficium confirmare[51].”
IV. A fourth rule, or canon of descents, is this; that the lineal descendants, in infinitum, of any person deceased shall represent their ancestor; that is, shall stand in the same place as the person himself would have done, had he been living.
Thus the child, grandchild, or great-grandchild (either male or female) of the eldest son succeeds before the younger son, and so in infinitum[52]. And these representatives shall take neither more nor less, but just so much as their principals would have done. As if there be two sisters, Margaret and Charlotte; and Margaret dies, leaving six daughters; and then John Stiles the father of the two sisters dies, without other issue: these six daughters shall take among them exactly the same as their mother Margaret would have done, had she been living; that is, a moiety of the lands of John Stiles in coparcenary; so that, upon partition made, if the land be divided into twelve parts, thereof Charlotte the surviving sister shall have six, and her six nieces, the daughters of Margaret, one apiece.
This taking by representation is called a succession in stirpes, according to the roots; since all the branches inherit the same share that their root, whom they represent, would have done. And in this manner also was the Jewish succession directed[53]; but the Roman somewhat differed from it. In the descending line the right of representation continued in infinitum, and the inheritance still descended in stirpes: as if one of three daughters died, leaving ten children, and then the father died; the two surviving daughters had each one third of his effects, and the ten grandchildren had the remaining third divided between them. And so among collaterals, if any persons of equal degree with the persons represented were still subsisting, (as if the deceased left one brother, and two nephews the sons of another brother) the succession was still guided by the roots: but, if both the brethren were dead leaving issue, then (I apprehend) their representatives in equal degree became themselves principals, and shared the inheritance per capita, that is, share and share alike; they being themselves now the next in degree to the ancestor, in their own right, and not by right of representation[54]. So, if the next heirs of Titius be six nieces, three by one sister, two by another, and one by a third; his inheritance by the Roman law was divided into six parts, and one given to each of the nieces: whereas the law of England in this case would still divide it only into three parts, and distribute it per stirpes, thus; one third to the three children who represent one sister, another third to the two who represent the second, and the remaining third to the one child who is the sole representative of her mother.
This mode of representation is a necessary consequence of the double preference given by our law, first to the male issue, and next to the firstborn among the males, to both which the Roman law is a stranger. For if all the children of three sisters were in England to claim per capita, in their own rights as next of kin to the ancestor, without any respect to the stocks from whence they sprung, and those children were partly male and partly female; then the eldest male among them would exclude not only his own brethren and sisters, but all the issue of the other two daughters; or else the law in this instance must be inconsistent with itself, and depart from the preference which it constantly gives to the males, and the firstborn, among persons in equal degree. Whereas, by dividing the inheritance according to the roots or stirpes, the rule of descent is kept uniform and steady: the issue of the eldest son excludes all other pretenders, as the son himself (if living) would have done; but the issue of two daughters divide the inheritance between them, provided their mothers (if living) would have done the same: and among these several issues, or representatives of the respective roots, the same preference to males and the same right of primogeniture obtain, as would have obtained at the first among the roots themselves, the sons or daughters of the deceased. As if a man hath two sons, A and B, and A dies leaving two sons, and then the grandfather dies; now the eldest son of A shall succeed to the whole of his grandfather’s estate: and if A had left only two daughters, they should have succeeded also to equal moieties of the whole, in exclusion of B and his issue. But if a man hath only three daughters, C, D, and E; and C dies leaving two sons, D leaving two daughters, and E leaving a daughter and a son who is younger than his sister: here, when the grandfather dies, the eldest son of C shall succeed to one third, in exclusion of the younger; the two daughters of D to another third in partnership; and the son of E to the remaining third, in exclusion of his elder sister. And the same right of representation, guided and restrained by the same rules of descent, prevails downwards in infinitum.
Yet this right does not appear to have been thoroughly established in the time of Henry the second, when Glanvil wrote; and therefore, in the title to the crown especially, we find frequent contests between the younger (but surviving) brother, and his nephew (being the son and representative of the elder deceased) in regard to the inheritance of their common ancestor: for the uncle is certainly nearer of kin to the common stock, by one degree, than the nephew; though the nephew, by representing his father, has in him the right of primogeniture. The uncle also was usually better able to perform the services of the fief; and besides had frequently superior interest and strength, to back his pretensions and crush the right of his nephew. And even to this day, in the lower Saxony, proximity of blood takes place of representative primogeniture; that is, the younger surviving brother is admitted to the inheritance before the son of an elder deceased: which occasioned the disputes between the two houses of Mecklenburg, Schwerin and Strelitz, in 1692[55]. Yet Glanvil, with us, even in the twelfth century, seems[56] to declare for the right of the nephew by representation; provided the eldest son had not received a provision in lands from his father, (or as the civil law would call it) had not been forisfamiliated, in his lifetime. King John, however, who kept his nephew Arthur from the throne, by disputing this right of representation, did all in his power to abolish it throughout the realm[57]: but in the time of his son, king Henry the third, we find the rule indisputably settled in the manner we have here laid it down[58], and so it has continued ever since. And thus much for lineal descents.
V. A fifth rule is, that, on failure of lineal descendants, or issue, of the person last seised, the inheritance shall descend to the blood of the first purchasor; subject to the three preceding rules.
Thus if Geoffrey Stiles purchases land, and it descends to John Stiles his son, and John dies seised thereof without issue; whoever succeeds to this inheritance must be of the blood of Geoffrey the first purchasor of this family[59]. The first purchasor, perquisitor, is he who first acquired the estate to his family, whether the same was transferred to him by sale, or by gift, or by any other method, except only that of descent.
This is a rule almost peculiar to our own laws, and those of a similar original. For it was entirely unknown among the Jews, Greeks, and Romans: none of whole laws looked any farther than the person himself who died seised of the estate; but assigned him an heir, without considering by what title he gained it, or from what ancestor he derived it. But the law of Normandy[60] agrees with our law in this respect: nor indeed is that agreement to be wondered at, since the law of descents in both is of feodal original; and this rule or canon cannot otherwise be accounted for than by recurring to feodal principles.
When feuds first began to be hereditary, it was made a necessary qualification of the heir, who would succeed to a feud, that he should be of the blood of, that is lineally descended from, the first feudatory or purchasor. In consequence whereof, if a vasal died possessed of a feud of his own acquiring, or feudum novum, it could not descend to any but his own offspring; no, not even to his brother, because he was not descended, nor derived his blood, from the first acquirer. But if it was feudum antiquum, that is, one descended to the vasal from his ancestors, then his brother, or such other collateral relation as was descended and derived his blood from the first feudatory, might succeed to such inheritance. To this purpose speaks the following rule; “frater fratri sine legitimo haerede defuncto, in beneficio quod eorum patris fuit, succedat: sin autem unus e fratribus a domino feudum acceperit, eo defuncto sine legitimo haerede, frater ejus in feudum non succedit[61].” The true feodal reason for which rule was this; that what was given to a man, for his personal service and personal merit, ought not to descend to any but the heirs of his person. And therefore, as in estates-tail, (which a proper feud very much resembled) so in the feodal donation, “nomen haeredis, in prima investitura expressum, tantum ad descendentes ex corpore primi vasalli extenditur; et non ad collaterales, nisi ex corpore primi vasalli sive stipitis descendant[62]:” the will of the donor, or original lord, (when feuds were turned from life estates into inheritances) not being to make them absolutely hereditary, like the Roman allodium, but hereditary only sub modo; not hereditary to the collateral relations, or lineal ancestors, or husband, or wife of the feudatory, but to the issue descended from his body only.
However, in process of time, when the feodal rigour was in part abated, a method was invented to let in the collateral relations of the grantee to the inheritance, by granting him a feudum novum to hold ut feudum antiquum; that is, with all the qualities annexed of a feud derived from his ancestors; and then the collateral relations were admitted to succeed even in infinitum, because they might have been of the blood of, that is descended from, the first imaginary purchasor. For since it is not ascertained in such general grants, whether this feud shall be held ut feudum paternum, or feudum avitum, but ut feudum antiquum merely, as a feud of indefinite antiquity; that is, since it is not ascertained from which of the ancestors of the grantee this feud shall be supposed to have descended; the law will not ascertain it, but will suppose any of his ancestors, pro re nata, to have been the first purchasor: and therefore it admits any of his collateral kindred (who have the other necessary requisites) to the inheritance, because every collateral kinsman must be descended from some one of his lineal ancestors.
Of this nature are all the grants of fee-simple estates of this kingdom; for there is now in the law of England no such thing as a grant of a feudum novum, to be held ut novum; unless in the case of a fee-tail, and there we fee that this rule is strictly observed, and none but the lineal descendants of the first donee (or purchasor) are admitted: but every grant of lands in fee-simple is with us a feudum novum to be held ut antiquum, as a feud whose antiquity is indefinite; and therefore the collateral kindred of the grantee, or descendants from any of his lineal ancestors, by whom the lands might have possibly been purchased, are capable of being called to the inheritance.
Yet, when an estate hath really descended in a course of inheritance to the person last seised, the strict rule of the feodal law is still observed; and none are admitted, but the heirs of those through whom the inheritance hath passed: for all others have demonstrably none of the blood of the first purchasor in them, and therefore shall never succeed. As, if lands come to John Stiles by descent from his mother Lucy Baker, no relation of his father (as such) shall ever be his heir of these lands; and, vice versa, if they descended from his father Geoffrey Stiles, no relation of his mother (as such) shall ever be admitted thereto; for his father’s kindred have none of his mother’s blood, nor have his mother’s relations any share of his father’s blood. And so, if the estate descended from his father’s father, George Stiles; the relations of his father’s mother, Cecilia Kempe, shall for the same reason never be admitted, but only those of his father’s father. This is also the rule of the French law[63], which is derived from the same feodal fountain.
Here we may observe, that, so far as the feud is really antiquum, the law traces it back, and will not suffer any to inherit but the blood of those ancestors, from whom the feud was conveyed to the late proprietor. But when, through length of time, it can trace it no farther; as if it be not known whether his grandfather, George Stiles, inherited it from his father Walter Stiles, or his mother Christian Smith; or if it appear that his grandfather was the first grantee, and so took it (by the general law) as a feud of indefinite antiquity; in either of these cases the law admits the descendants of any ancestor of George Stiles, either paternal or maternal, to be in their due order the heirs to John Stiles of this estate: because in the first case it is really uncertain, and in the second case it is supposed to be uncertain, whether the grandfather derived his title from the part of his father or his mother.
This then is the great and general principle, upon which the law of collateral inheritances depends; that, upon failure of issue in the last proprietor, the estate shall descend to the blood of the first purchasor; or, that it shall result back to the heirs of the body of that ancestor, from whom it either really has, or is supposed by fiction of law to have, originally descended: according to the rule laid down in the yearbooks[64], Fitzherbert[65], Brook[66], and Hale[67]; “that he who would have been heir to the father of the deceased” (and, of course, to the mother, or any other purchasing ancestor) “shall also be heir to the son.”
The remaining rules are only rules of evidence, calculated to investigate who that purchasing ancestor was; which, in feudis vere antiquis, has in process of time been forgotten, and is supposed so to be in feuds that are held ut antiquis.
VI. A sixth rule or canon therefore is, that the collateral heir of the person last seised must be his next collateral kinsman, of the whole blood.
First, he must be his next collateral kinsman, either personally or jure representationis; which proximity is reckoned according to the canonical degrees of consanguinity before-mentioned. Therefore, the brother being in the first degree, he and his descendants shall exclude the uncle and his issue, who is only in the second. And herein consists the true reason of the different methods of computing the degrees of consanguinity, in the civil law on the one hand, and in the canon and common laws on the other. The civil law regards consanguinity principally with respect to successions, and therein very naturally considers only the person deceased, to whom the relation is claimed: it therefore counts the degrees of kindred according to the number of persons through whom the claim must be derived from him; and make not only his great-nephew but also his first-cousin to be both related to him in the fourth degree; because there are three persons between him and each of them. The canon law regards consanguinity principally with a view to prevent incestuous marriages, between those who have a large portion of the same blood running in their respective veins; and therefore looks up to the author of that blood, or the common ancestor, reckoning the degrees from him: so that the great-nephew is related in the third canonical degree to the person proposed, and the first-cousin in the second; the former being distant three degrees from the common ancestor, and therefore deriving only one fourth of his blood from the same fountain with the propositus; the latter, and also the propositus, being each of them distant only two degrees from the common ancestor, and therefore having one half of each of their bloods the same. The common law regards consanguinity principally with respect to descents; and, having therein the same object in view as the civil, it may seem as if it ought to proceed according to the civil computation. But as it also respects the purchasing ancestor, from whom the estate was derived, it therein resembles the canon law, and therefore counts it’s degrees in the same manner. Indeed the designation of person (in seeking for the next of kin) will come to exactly the same end (though the degrees will be differently numbered) whichever method of computation we suppose the law of England to use; lince the right of representation (of the father by the son, &c) is allowed to prevail in infinitum. This allowance was absolutely necessary, else there would have frequently been many claimants in exactly the same degree of kindred, as (for instance) uncles and nephews of the deceased; which multiplicity, though no inconvenience in the Roman law of partible inheritances, yet would have been productive of endless confusion where the right of sole succession, as with us, is established. The issue or descendants therefore of John Stiles’s brother are all of them in the first degree of kindred with respect to inheritances, as their father also, when living, was; those of his uncle in the second; and so on; and are severally called to the succession in right of such their representative proximity.
The right of representation being thus established, the former part of the present rule amounts to this; that, on failure of issue of the person last seised, the inheritance shall descend to the issue of his next immediate ancestor. Thus if John Stiles dies without issue, his estate shall descend to Francis his brother, who is lineally descended from Geoffrey Stiles his next immediate ancestor, or father. On failure of brethren, or sisters, and their issue, it shall descend to the uncle of John Stiles, the lineal descendant of his grandfather George, and so on in infinitum. Very similar to which was the law of inheritance among the antient Germans, our progenitors: “haeredes successoresque sui cuique liberi, et nullum testamentum: si liberi non sunt, proximus gradus in possessione, fratres, patrui, avunculi[68].”
Now here it must be observed, that the lineal ancestors, though (according to the first rule) incapable themselves of succeeding to the estate, because it is supposed to have already passed them, are yet the common stocks from which the next successor must spring. And therefore in the Jewish law, which in this respect entirely corresponds with ours[69], the father or other lineal ancestor is himself laid to be the heir, though long since dead, as being represented by the persons of his issue; who are held to succeed not in their own rights, as brethren, uncles, &c, but in right of representation, as the sons of the father, grandfather, &c, of the deceased[70]. But, though the common ancestor be thus the root of the inheritance, yet with us it is not necessary to name him in making out the pedigree or descent. For the descent between two brothers is held to be an immediate descent; and therefore title may be made by one brother or his representatives to or through another, without mentioning their common father[71]. If Geoffrey Stiles hath two sons, John and Francis, Francis may claim as heir to John, without naming their father Geoffrey: and to the son of Francis may claim as cousin and heir to Matthew the son of John, without naming the grandfather; viz. as son of Francis, who was the brother of John, who was the father of Matthew. But though the common ancestors are not named in deducing the pedigree, yet the law still respects them as the fountains of inheritable blood: and therefore in order to ascertain the collateral heir of John Stiles, it is in the first place necessary to recur to his ancestors in the first degree; and if they have left any other issue besides John, that issue will be his heir. On default of such, we must ascend one step higher to the ancestors in the second degree, and then to those in the third, and fourth, and so upwards, in infinitum; till some ancestors be found, who have other issue descending from them besides the deceased, in a parallel or collateral line. From these ancestors the heir of John Stiles must derive his descent; and in such derivation the same rules must be observed, with regard to sex, primogeniture, and representation, that have just been laid down with regard to lineal descents from the person of the last proprietor.
But, secondly, the heir need not be the nearest kinsman absolutely, but ony sub modo; that is, he must be the nearest kinsman of the whole blood; for, if there be a much nearer kinsman of the half blood, a distant kinsman of the whole blood shall be admitted, and the other entirely excluded.
A kinsman of the whole blood is he that is derived, not only from the same ancestor, but from the same couple of ancestors. For, as every man’s own blood is compounded of the bloods of his respective ancestors, he only is properly of the whole or entire blood with another, who hath (so far as the distance of degrees will permit) all the same ingredients in the composition of his blood that the other hath. Thus, the blood of John Stiles being composed of those of Geoffrey Stiles his father and Lucy Baker his mother, therefore his brother Francis, being descended from both the same parents, hath entirely the same blood with John Stiles; or, he is his brother of the whole blood. But if, after the death of Geoffrey, Lucy Baker the mother marries a second husband, Lewis Gay, and hath issue by him; the blood of this issue, being compounded of the blood of Lucy Baker (it is true) on the one part, but of that of Lewis Gay (instead of Geoffrey Stiles) on the other part, it hath therefore only half the same ingredients with that of John Stiles; so that he is only his brother of the half blood, and for that reason they shall never inherit to each other. So also, if the father has two sons, A and B, by different venters or wives; now these two brethren are not brethren of the whole blood, and therefore shall never inherit to each other, but the estate shall rather escheat to the lord. Nay, even if the father dies, and his lands descend to his eldest son A, who enters thereon, and dies seised without issue; still B shall not be heir to this estate, because he is only of the half blood to A, the person last seised: but, had A died without entry, then B might have inherited; not as heir to A his half-brother, but as heir to their common father, who was the person last actually seised[72].
This total exclusion of the half blood from the inheritance, being almost peculiar to our own law, is looked upon as a strange hardship by such as are unacquainted with the reasons on which it is grounded. But these censures arise from a misapprehension of the rule; which is not so much to be considered in the light of a rule of descent, as of a rule of evidence; an auxiliary rule, to carry a former into execution. And here we must again remember, that the great and most universal principle of collateral inheritances being this, that an heir to a feudum antiquum must be of the blood of the first feudatory or purchasor, that is, derived in a lineal descent from him; it was originally requisite, as upon gifts in tail it still is, to make out the pedigree of the heir from the first donee or purchasor, and to shew that such heir was his lineal representative. But when, by length of time and a long course of descents, it came (in those rude and unlettered ages) to be forgotten who was really the first feudatory or purchasor, and thereby the proof of an actual descent from him became impossible; then the law substituted what sir Martin Wright[73] calls a reasonable, in the stead of an impossible, proof: for it remits the proof of an actual descent from the first purchasor; and only requires, in lieu of it, that the claimant be next of the whole blood to the person last in possession; (or derived from the same couple of ancestors) which will probably answer the same end as if he could trace his pedigree in a direct line from the first purchasor. For he who is my kinsman of the whole blood can have no ancestors beyond or higher than the common stock, but what are equally my ancestors also; and mine are vice versa his: he therefore is very likely to be derived from that unknown ancestor of mine, from whom the inheritance descended. But a kinsman of the half blood has but one half of his ancestors above the common stock the same as mine; and therefore there is not the same probability of that standing requisite in the law, that he be derived from the blood of the first purchasor.
To illustrate this by example. Let there be John Stiles, and Francis, brothers by the same father and mother, and another son of the same mother by Lewis Gay a second husband. Now, if John dies seised of lands, but it is uncertain whether they descended to him from his father or mother; in this case his brother Francis, of the whole blood, is qualified to be his heir; for he is sure to be in the line of descent from the first purchasor, whether it were the line of the father or the mother. But if Francis should die before John, without issue, the mother’s son by Lewis Gay (or brother of the half blood) is utterly incapable of being heir; for he cannot prove his descent from the first purchasor, who is unknown, nor has he that fair probability which the law admits as presumptive evidence, since he is to the full as likely not to be descended from the line of the first purchasor, as to be descended: and therefore the inheritance shall go to the nearest relation possessed of this presumptive proof, the whole blood.
And, as this is the case in feudis antiquis, where there really did once exist a purchasing ancestor, who is forgotten; it is also the case in feudis novis held ut antiquis, where the purchasing ancestor is merely ideal, and never existed but only in fiction of law. Of this nature are all grants of lands in fee-simple at this day, which are inheritable as if they descended from some uncertain indefinite ancestor, and therefore any of the collateral kindred of the real modern purchasor (and not his own offspring only) may inherit them, provided they be of the whole blood; for all such are, in judgment of law, likely enough to be derived from this indefinite ancestor: but those of the half blood are excluded, for want of the same probability. Nor should this be thought hard, that a brother of the purchasor, though only of the half blood, must thus be disinherited, and a more remote relation of the whole blood admitted, merely upon a supposition and fiction of law; since it is only upon a like supposition and fiction, that brethren of purchasors (whether of the whole or half blood) are entitled to inherit at all: for we have seen that in feudis stricte novis neither brethren nor any other collaterals were admitted. As therefore in feudis antiquis we have seen the reasonableness of excluding the half blood, if by a fiction of law a feudum novum be made descendible to collaterals as if it was feudum antiquum, it is just and equitable that it should be subject to the same restrictions as well as the same latitude of descent.
Perhaps by this time the exclusion of the half blood does not appear altogether so unreasonable, as at first sight it is apt to do. It is certainly a very fine-spun and subtile nicety: but, considering the principles upon which our law is founded, it is neither an injustice nor a hardship; since even the succession of the whole blood was originally a beneficial indulgence, rather than the strict right of collaterals: and, though that indulgence is not extended to the demi-kindred, yet they are rarely abridged of any right which they could possibly have enjoyed before. The doctrine of whole blood was calculated to supply the frequent impossibility of proving a descent from the first purchasor, without some proof of which (according to our fundamental maxim) there can be no inheritance allowed of. And this purpose it answers, for the most part, effectually enough. I speak with these restrictions, because it does not, neither can any other method, answer this purpose entirely. For though all the ancestors of John Stiles, above the common stock, are also the ancestors of his collateral kinsman of the whole blood; yet, unless that common stock be in the first degree, (that is, unless they have the same father and mother) there will be intermediate ancestors below the common stock, that may belong to either of them respectively, from which the other is not descended, and therefore can have none of their blood. Thus, though John Stiles and his brother of the whole blood can each have no other ancestors, than what are in common to them both; yet with regard to his uncle, where the common stock is removed one degree higher, (that is, the grandfather and grandmother) one half of John’s ancestors will not be the ancestors of his uncle: his patruus, or father’s brother, derives not his descent from John’s maternal ancestors; nor his avunculus, or mother’s brother, from those in the paternal line. Here then the supply of proof is deficient, and by no means amounts to a certainty: and, the higher the common stock is removed, the more will even the probability decrease. But it must be observed, that (upon the same principles of calculation) the half blood have always a much less chance to be descended from an unknown indefinite ancestor of the deceased, than the whole blood in the same degree. As, in the first degree, the whole brother of John Stiles is sure to be descended from that unknown ancestor; his half brother has only an even chance, for half John’s ancestors are not his. So, in the second degree, John’s uncle of the whole blood has an even chance; but the chances are three to one against his uncle of the half blood, for three fourths of John’s ancestors are not his. In like manner, in the third degree, the chances are only three to one against John’s great uncle of the whole blood, but they are seven to one against his great uncle of the half blood, for seven eighths of John’s ancestors have no connexion in blood with him. Therefore the much less probability of the half blood’s descent from the first purchasor, compared with that of the whole blood, in the several degrees, has occasioned a general exclusion of the half blood in all.
But, while I thus illustrate the reason of excluding the half blood in general, I must be impartial enough to own, that, in some instances, the practice is carried farther than the principle upon which it goes will warrant. Particularly, when a man has two sons by different venters, and the estate on his death descends from him to the eldest, who enters, and dies without issue: now the younger son cannot inherit this estate, because he is not of the whole blood to the last proprietor. This, it must be owned, carries a hardship with it, even upon feodal principles: for the rule was introduced only to supply the proof of a descent from the first purchasor; but here, as this estate notoriously descended from the father, and as both the brothers confessedly sprung from him, it is demonstrable that the half brother must be of the blood of the first purchasor, who was either the father or some of the father’s ancestors. When therefore there is actual demonstration of the thing to be proved, it is hard to exclude a man by a rule substituted to supply that proof when deficient. So far as the inheritance can be evidently traced back, there seems no need of calling in this presumptive proof, this rule of probability, to investigate what is already certain. Had the elder brother indeed been a purchasor, there would have been no hardship at all, for the reasons already given: or had the frater uterinus only, or brother by the mother’s side, been excluded from an inheritance which descended from the father, it had been highly reasonable.
Indeed it is this very instance, of excluding a frater consanguineus, or brother by the father’s side, from an inheritance which descended a patre, that Craig[74] has singled out, on which to ground his strictures on the English law of half blood. And, really, it should seem, as if the custom of excluding the half blood in Normandy[75] extended only to exclude a frater uterinus, when the inheritance descended a patre, and vice versa: as even with us it remained a doubt, in the time of Bracton[76], and of Fleta[77], whether the half blood on the father’s side were excluded from the inheritance which originally descended from the common father, or only from such as descended from the respective mothers, and from newly purchased lands. And the rule of law, as laid down by our Fortescue[78], extends no farther than this; frater fratri uterino non succedet in haereditate paterna. It is moreover worthy of observation, that by our law, as it now stands, the crown (which is the highest inheritance in the nation) may descend to the half blood of the preceding sovereign[79], so as it be the blood of the first monarch, purchasor, or (in the feodal language) conqueror, of the reigning family. Thus it actually did descend from king Edward the sixth to queen Mary, and from her to queen Elizabeth, who were respectively of the half blood to each other. For, the royal pedigree being always a matter of sufficient notoriety, there is no occasion to call in the aid of this presumptive rule of evidence, to render probable the descent from the royal stock; which was formerly king William the Norman, and is now (by act of parliament[80]) the princess Sophia of Hanover. Hence also it is, that in estates-tail, where the pedigree from the first donee must be strictly proved, half blood is no impediment to the descent[81]: because, when the lineage is clearly made out, there is no need of this auxiliary proof. How far it might be desirable for the legislature to give relief, by amending the law of descents in this single instance, and ordaining that the half blood might inherit, where the estate notoriously descended from it’s own proper ancestor, but not otherwise; or how far a private inconvenience should be submitted to, rather than a long established rule should be shaken; it is not for me to determine.
The rule then, together with it’s illustration, amounts to this: that, in order to keep the estate of John Stiles as nearly as possible in the line of his purchasing ancestor, it must descend to the issue of the nearest couple of ancestors that have left descendants behind them; because the descendants of one ancestor only are not so likely to be in the line of that purchasing ancestor, as those who are descended from two.
But here another difficulty arises. In the second, third, fourth, and every superior degree, every man has many couples of ancestors, increasing according to the distance in a geometrical progression upwards[82], the descendants of all which respective couples are (representatively) related to him in the same degree. Thus in the second degree, the issue of George and Cecilia Stiles and of Andrew and Esther Baker, the two grandsires and grandmothers of John Stiles, are each in the same degree of propinquity; in the third degree, the respective issues of Walter and Christian Stiles, of Luke and Frances Kempe, of Herbert and Hannah Baker, and of James and Emma Thorpe, are (upon the extinction of the two inferior degrees) all equally entitled to call themselves the next kindred of the whole blood to John Stiles. To which therefore of these ancestors must we first resort, in order to find out descendants to be preferably called to the inheritance? In answer to this, and to avoid the confusion and uncertainty that must arise between the several stocks, wherein the purchasing ancestor may be fought for,
VII. The seventh and last rule or canon is, that in collateral inheritances the male stocks shall be preferred to the female; (that is, kindred derived from the blood of the male ancestors shall be admitted before those from the blood of the female) — unless where the lands have, in fact, descended from a female.
Thus the relations on the father’s side are admitted in infinitum, before those on the mother’s side are admitted at all[83]; and the relations of the father’s father, before those of the father’s mother; and so on. And in this the English law is not singular, but warranted by the examples of the Hebrew and Athenian laws, as stated by Selden[84], and Petit[85]; though among the Greeks, in the time of Hesiod[86], when a man died without wife or children, all his kindred (without any distinction) divided his estate among them. It is likewise warranted by the example of the Roman laws; wherein the agnati, or relations by the father, were preferred to the cognati, or relations by the mother, till the edict of the emperor Justinian[87] abolished all distinction between them. It is also conformable to the customary law of Normandy[88], which indeed in most respects agrees with our law of inheritance.
However, I am inclined to think, that this rule of our laws does not owe it’s immediate original to any view of conformity to those which I have just now mentioned; but was established in order to effectuate and carry into execution, the fifth rule or canon before laid down; that every heir must be of the blood of the first purchasor. For, when such first purchasor was not easily to be discovered after a long course of descents, the lawyers not only endeavoured to investigate him by taking the next relation of the whole blood to the person last in possession; but also, considering that a preference had been given to males (by virtue of the second canon) through the whole course of lineal descent from the first purchasor to the present time, they judged it more likely that the land should have descended to the last tenant from his male than from his female ancestors; from the father (for instance) rather than from the mother; from the father’s father, rather than the father’s mother: and therefore they hunted back the inheritance (if I may be allowed the expression) through the male line; and gave it to the next relations on the side of the father, the father’s father, and so upwards; imagining with reason that this was the most probable way of continuing it in the line of the first purchasor. A conduct much more rational than the preference of the agnati by the Roman laws: which, as they gave no advantage to the males in the first instance or direct lineal succession, had no reason for preferring them in the transverse collateral one: upon which account this preference was very wisely abolished by Justinian.
That this was the true foundation of the preference of the agnati or male stocks, in our law, will further appear if we consider, that, whenever the lands have notoriously descended to a man from his mother’s side, this rule is totally reversed, and no relation of his by the father’s side, as such, can ever be admitted to them; because he cannot possibly be of the blood of the first purchasor. And so, e converso, if the lands descended from the father’s side, no relation of the mother, as such, shall ever inherit. So also, if they in fact descended to John Stiles from his father’s mother Cecilia Kempe; here not only the blood of Lucy Baker his mother, but also of George Stiles his father’s father, is perpetually excluded. And, in like manner, if they be known to have descended from Frances Holland the mother of Cecilia Kempe, the line not only of Lucy Baker, and of George Stiles, but also of Luke Kempe the father of Cecilia, is excluded. Whereas when the side from which they descended is forgotten, or never known, (as in the case of an estate newly purchased to be holden ut feudum antiquum) here the right of inheritance first runs up all the father’s side, with a preference to the male stocks in every instance; and, if it finds no heirs there, it then, and then only, resorts to the mother’s side; leaving no place untried, in order to find heirs that may by possibility be derived from the original purchasor. The greatest probability of finding such was among those descended from the male ancestors; but, upon failure of issue there, they may possibly be found among those derived from the females.
This I take to be the true reason of the constant preference of the agnatic succession, or issue derived from the male ancestors, through all the stages of collateral inheritance; as the ability for personal service was the reason for preferring the males at first in the direct lineal succession. We fee clearly, that, if males had been perpetually admitted, in utter exclusion of females, the tracing the inheritance back through the male line of ancestors must at last have inevitably brought us up to the first purchasor: but, as males have not been perpetually admitted, but only generally preferred; as females have not been utterly excluded, but only generally postponed to males; the tracing the inheritance up through the male stocks will not give us absolute demonstration, but only a strong probability, of arriving at the first purchasor; which, joined with the other probability, of the wholeness or entirety of blood, will fall short of a certainty.
Before we conclude this branch of our enquiries, it may not be amiss to exemplify these rules by a short sketch of the manner in which we must search for the heir of a person, as John Stiles, who dies seised of land which he acquired, and which therefore he held as a feud of indefinite antiquity[89].
In the first place succeeds the eldest son, Matthew Stiles, or his issue: (№ 1.) — if his line be extinct, then Gilbert Stiles and the other sons, respectively, in order of birth, or their issue: (№ 2.) — in default of these, all the daughters together, Margaret and Charlotte Stiles, or their issue. (№ 3.) — On failure of the descendants of John Stiles himself, the issue of Geoffrey and Lucy Stiles, his parents, is called in: viz. first, Francis Stiles, the eldest brother of the whole blood, or his issue: (№ 4.) — then Oliver Stiles, and the other whole brothers, respectively, in order of birth, or their issue: (№ 5.) — then the sisters of the whole blood, all together, Bridget and Alice Stiles, or their issue. (№ 6.) — In defect of these, the issue of George and Cecilia Stiles, his father’s parents; respect being still had to their age and sex: (№ 7.) — then the issue of Walter and Christian Stiles, the parents of his paternal grandfather: (№ 8.) — then the issue of Richard and Anne Stiles, the parents of his paternal grandfather’s father: (№ 9.) — and so on in the paternal grandfather’s paternal line, or blood of Walter Stiles, in infnitum. In defect of these, the issue of William and Jane Smith, the parents of his paternal grandfather’s mother: (№ 10.) — and so on in the paternal grandfather’s maternal line, or blood of Christian Smith, in infinitum; till both the immediate bloods of George Stiles, the paternal grandfather, are spent. — Then we must resort to the issue of Luke and Frances Kempe, the parents of John Stiles’s paternal grandmother: (№ 11.) — then to the issue of Thomas and Sarah Kempe, the parents of his paternal grandmother’s father: (№ 12.) — and so on in the paternal grandmother’s paternal line, or blood of Luke Kempe, in infinitum. — In default of which, we must call in the issue of Charles and Mary Holland, the parents of his paternal grandmother’s mother: (№ 13.) — and so on in the paternal grandmother’s maternal line, or blood of Frances Holland, in infinitum; till both the immediate bloods of Cecilia Kempe, the paternal grandmother, are also spent. — Whereby the paternal blood of John Stiles entirely failing, recourse must then, and not before, be had to his maternal relations; or the blood of the Bakers, (№ 14, 15, 16.) Willis’s, (№ 17.) Thorpes, (№ 18, 19.) and Whites; (№ 20.) in the same regular successive order as in the paternal line.
The student should however be informed, that the class, № 10, would be postponed to № 11, in consequence of the doctrine laid down, arguendo, by justice Manwoode, in the case of Clere and Brooke[90]; from whence it is adopted by lord Bacon[91], and sir Matthew Hale[92]. And yet, notwithstanding these respectable authorities, the compiler of this table hath ventured to give the preference therein to № 10 before № 11; for the following reasons: 1. Because this point was not the principal question in the case of Clere and Brooke; but the law concerning it is delivered obiter only, and in the course of argument, by justice Manwoode; though afterwards said to be confirmed by the three other justices in separate, extrajudicial, conferences with the reporter. 2. Because the chief-justice, sir James Dyer, in reporting the resolution of the court in what seems to be the same case[93], takes no notice of this doctrine. 3. Because it appears, from Plowden’s report, that very many gentlemen of the law were dissatisfied with this position of justice Manwoode. 4. Because the position itself destroys the otherwise entire and regular symmetry of our legal course of descents, as is manifest by inspecting the table; and destroys also that constant preference of the male stocks in the law of inheritance, for which an additional reason is before given, besides the mere dignity of blood. 5. Because it introduces all that uncertainty and contradiction, which is pointed out by an ingenious author[94]; and establishes a collateral doctrine, incompatible with the principal point resolved in the case of Clere and Brooke, viz. the preference of № 11 to № 14. And, though that learned writer proposes to rescind the principal point then resolved, in order to clear this difficulty; it is apprehended, that the difficulty may be better cleared, by rejecting the collateral doctrine, which was never yet resolved at all. 6. Because by the reason that is given for this doctrine, in Plowden, Bacon, and Hale, (viz. that in any degree, paramount the first, the law respecteth proximity, and not dignity of blood) № 18 ought also to be preferred to № 16; which is directly contrary to the eighth rule laid down by Hale himself[95]. 7. Because this position seems to contradict the allowed doctrine of sir Edward Coke[96]; who lays it down (under different names) that the blood of the Kempes (alias Sandies) shall not inherit till the blood of the Stiles’s (alias Fairfields) fail. Now the blood of the Stiles’s does certainly not fail, till both № 9 and № 10 are extinct. Wherefore № 11 (being the blood of the Kempes) ought not to inherit till then. 8. Because in the case, Mich. 12 Edw. IV. 14[97]. (much relied on in that of Clere and Brooke) it is laid down as a rule, that “cestuy, que doit inheriter al pere, doit inheriter al fits.” And so sir Matthew Hale[98] says, “that though the law excludes the father from inheriting, yet it substitutes and directs the descent, as it should have been, had the father inherited.” Now it is settled, by the resolution in Clere and Brooke, that № 10 should have inherited to Geoffrey Stiles, the father, before № 11; and therefore № 10 ought also to be preferred in inheriting to John Stiles, the son.
In case John Stiles was not himself the purchasor, but the estate in fact came to him by descent from his father, mother, or any higher ancestor, there is this difference; that the blood of that line of ancestors, from which it did not descend, can never inherit. Thus, if it descended from Geoffrey Stiles, the father, the blood of Lucy Baker, the mother, is perpetually excluded: and so, vice versa, if it descended from Lucy Baker, it cannot descend to the blood of Geoffrey Stiles. This, in either case, cuts off one half of the table from any possible succession. And farther, if it can be shewn to have descended from George Stiles, this cuts off three fourths; for now the blood, not only of Lucy Baker, but also of Cecilia Kempe, is excluded. If, lastly, it descended from Walter Stiles, this narrows the succession still more, and cuts off seven eighths of the table; for now, neither the blood of Lucy Baker, nor of Cecilia Kempe, nor of Christian Smith, can ever succeed to the inheritance. And the like rule will hold upon descents from any other ancestors.
The student should bear in mind, that, during this whole process, John Stiles is the person supposed to have been last actually seised of the estate. For if ever it comes to vest in any other person, as heir to John Stiles, a new order of succession must be observed upon the death of such heir; since he, by his own seisin, now becomes himself an ancestor, or stipes, and must be put in the place of John Stiles. The figures therefore denote the order, in which the several classes would succeed to John Stiles, and not to each other: and, before we search for an heir in any of the higher figures, (as № 8.) we must be first assured that all the lower classes (from № 1 to 7.) were extinct, at John Stiles’s decease.
↑ Co. Litt. 18.
↑ See Vol. I. pag. 74, 75. Vol. II. pag. 83. 85.
↑ See pag. 112, &c.
↑ For a fuller explanation of the doctrine of consanguinity, and the consequences resulting from a right apprehension of it’s nature, see an essay on collateral consanguinity, in the first volume of law tracts. Oxon. 1762. 8°.
↑ Ff. 38. 10. 10.
↑ Decretal. l. 4. tit. 14.
↑ Co. Litt. 23.
↑ Ibid. 12.
↑ This will seem surprizing to those who are unacquainted with the encreasing power of progressive numbers; but is palpably evident from the following table of a geometrical progression, in which the first term is 2, and the denominator also 2: or, to speak more intelligibly, it is evident, for that each of us has two ancestors in the first degree; the number of whom is doubled at every remove, because each of our ancestors has also two immediate ancestors of his own.
Lineal Degrees.Number of Ancestors.
1
2
2
4
3
8
4
16
5
32
6
64
7
128
8
256
9
512
10
1024
11
2048
12
4096
13
8192
14
16384
15
32768
16
65536
17
131072
18
262144
19
524288
20
1048576
A shorter method of finding the number of ancestors at any even degree is by squaring the number of ancestors at half that number of degrees. Thus 16 (the number of ancestors at four degrees) is the square of 4, the number of ancestors at two; 256 is the square of 16; 65536 of 256; and the number of ancestors at 40 degrees would be the square of 1048576, or upwards of a million millions.
↑ This will swell more considerably than the former calculation: for here, though the first term is but 1, the denominator is 4; that is, there is one kinsman (a brother) in the first degree, who makes, together with the propositus, the two descendants from the first couple of ancestors; and in every other degree the number of kindred must be the quadruple of those in the degree which immediately precedes it. For, since each couple of ancestors has two descendants, who encrease in a duplicate ratio, it will follow that the ratio, in which all the descendants encrease downwards, must be double to that in which the ancestors encrease upwards: but we have seen that the ancestors encrease in a duplicate ratio: therefore the descendants must encrease in a double duplicate, that is, in a quadruple, ratio.
Collateral Degrees.Number of Kindred.
1
1
2
4
3
16
4
64
5
256
6
1024
7
4096
8
16384
9
65536
10
262144
11
1048576
12
4194304
13
16777216
14
67108864
15
268435456
16
1073741824
17
4294967296
18
17179869184
19
68719476736
20
274877906944
This calculation may also be formed by a more compendious process, viz. by squaring the couples, or half the number, of ancestors at any given degree; which will furnish us with the number of kindred we have in the same degree, at equal distance with ourselves from the common stock, besides those at unequal distances. Thus, in the tenth lineal degree, the number of ancestors is 1024; it’s half, or the couples, amount to 512; the number of kindred in the tenth collateral degree amounts therefore to 262144, or the square of 512. And if we will be at the trouble to recollect the state of the several families within our own knowlege, and observe how far they agree with this account; that is, whether, on an average, every man has not one brother or sister, four first cousins, sixteen second cousins, and so on; we shall find that the present calculation is very far from being overcharged.
↑ Decretal. 4. 14. 3. & 9.
↑ Co. Litt. 23.
↑ See the table of consanguinity annexed; wherein all the degrees of collateral kindred to the propositus are computed, so far as the tenth of the civilians and the seventh of the canonists inclusive; the former being distinguished by the numeral letters, the latter by the common ciphers.
↑ Bro. tit. descent. 58.
↑ Co. Litt. 15.
↑ Ibid. 11.
↑ Flet. l. 6. c. 2. § 2.
↑ Litt. §. 3.
↑ Selden. de success. Ebraeor. c. 12.
↑ Ff. 38. 15. 1. Nov. 118. 127.
↑ Inst. 3. 3. 1.
↑ Crag. de jur. feud. l. 2. t. 13. §. 15. Locke on gov. part. 1. §. 90.
↑ 2 Feud. 50.
↑ Domat. p. 2. l. 2. t. 2. Montesqu. Esp. L. l. 31. c. 33.
↑ LL. Hen. I. c. 70.
↑ l. 7. c. 1.
↑ 1 Feud. 20.
↑ Descendit itaque jus, quasi ponderosum quid, cadens deorsum recta linea, et nunquam reascendit. l. 2. c. 29.
↑ 1 Inst. 11.
↑ Hal. H. C. L. 235.
↑ Numb. c. 27.
↑ Petit. LL. Attic. l. 6. t. 6.
↑ Inst. 3. 1. 6.
↑ Stat. Wall. 12 Edw. I.
↑ LL. Canut. c. 68.
↑ tit. 7. §. 1 & 4.
↑ c. 70.
↑ 1 Feud. 8.
↑ Litt. §. 5. Hale. H. C. L. 238.
↑ Selden. de succ. Ebr. c. 5.
↑ c. 70.
↑ Glanvil. l. 7. c. 3.
↑ 2 Feud. 55.
↑ Hale. H. C. L. 221.
↑ l. 7. c. 3.
↑ c. 1. §. 3.
↑ l. 2. c. 30, 31.
↑ Somner. Gavelk. 7.
↑ Co. Litt. 165.
↑ Ibid.
↑ 1 Feud. 1.
↑ Hale. H. C. L. 236, 237.
↑ Selden. de succ. Ebr. c. 1.
↑ Nov. 118. c. 3. Inst. 3. 1. 6.
↑ Mod. Un. Hist. xlii. 334.
↑ l. 7. c. 3.
↑ Hale. H. C. L. 217. 229.
↑ Bracton. l. 2. c. 30. §. 2.
↑ Co. Litt. 12.
↑ Gr. Coustum. c. 25.
↑ 1 Feud. 1. §. 2.
↑ Crag. l. 1. t. 9. §. 36.
↑ Domat. part. 2. pr.
↑ M. 12 Edw. IV. 14.
↑ Abr. t. discent. 2.
↑ Ibid. 38.
↑ H. C. L. 243.
↑ Tacitus de mor. Germ. 21.
↑ Numb. c. 27.
↑ Selden. de succ. Ebr. c. 12.
↑ 1 Sid. 193. 1 Lev. 60. 12 Mod. 619.
↑ Hale. H. C. L. 238.
↑ Tenures. 186.
↑ l. 2. t. 15. §. 14.
↑ Gr. Coustum. c. 25.
↑ l. 2. c. 30. §. 3.
↑ l. 6. c. 1. §. 14.
↑ de laud. LL. Angl. 5.
↑ Plowd. 245. Co. Litt. 15.
↑ 12 Will. III. c. 2.
↑ Litt. §. 14, 15.
↑ See pag. 204.
↑ Litt. §. 4.
↑ de succ. Ehraeor. c. 12.
↑ LL. Attic. l. 1. t. 6.
↑ Θεογον. 606.
↑ Nov. 118.
↑ Gr. Coustum. c. 25.
↑ See the table of descents annexed.
↑ Plowd. 450.
↑ Elem. c. 1.
↑ H. C. L. 240. 244.
↑ Dyer. 314.
↑ Law of inheritances. 2d edit. pag. 30. 38. 61. 62. 66.
↑ Hist. C. L. 247.
↑ Co. Litt. 12. Hawk. abr. in loc.
↑ Fitzh. Abr. tit. discent. 2. Bro. Abr. t. discent. 3.
↑ Hist. C. L. 243.
Chapter the fifteenth.
Of TITLE by PURCHASE, and first by ESCHEAT.
PURCHASE, perquisitio, taken in it’s largest and most extensive sense, is thus defined by Littleton[1]; the possession of lands and tenements, which a man hath by his own act or agreement; and not by descent from any of his ancestors or kindred. In this sense it is contradistinguished from acquisition by right of blood, and includes every other method of coming to an estate, but merely that by inheritance; wherein the title is vested in a person, not by his own act or agreement, but by the single operation of law[2].
Purchase, indeed, in it’s vulgar and confined acceptation, is applied only to such acquisitions of land, as are obtained by way of bargain and sale, for money, or some other valuable consideration. But this falls far short of the legal idea of purchase: for, if I give land freely to another, he is in the eye of the law a purchasor[3]; and falls within Littleton’s definition, for he comes to the estate by his own agreement, that is, he consents to the gift. A man who has his father’s estate settled upon him in tail, before he is born, is also a purchasor; for he takes quite another estate than the law of descents would have given him. Nay even if the ancestor devises his estate to his heir at law by will, with other limitations or in any other shape than the course of descents would direct, such heir shall take by purchase[4]. But if a man, seised in fee, devises his whole estate to his heir at law, so that the heir takes neither a greater nor a less estate by the devise than he would have done without it, he shall be adjudged to take by descent[5], even though it be charged with incumbrances[6]; for the benefit of creditors, and others, who have demands on the estate of the ancestor. If a remainder be limited to the heirs of Sempronius, here Sempronius himself takes nothing; but, if he dies during the continuance of the particular estate, his heirs shall take as purchasors[7]. But, if an estate be made to A for life, remainder to his right heirs in fee, his heirs shall take by descent: for it is an antient rule of law, that wherever the ancestor takes an estate for life, the heir cannot by the same conveyance take an estate in fee by purchase, but only by descent[8]. And, if A dies before entry, still his heir shall take by descent, and not by purchase; for, where the heir takes any thing that might have vested in the ancestor, he takes by way of descent[9]. The ancestor, during his life, beareth in himself all his heirs[10]; and therefore, when once he is or might have been seised of the land, the inheritance so limited to his heirs vests in the ancestor himself: and the word “heirs” in this case is not esteemed a word of purchase, but a word of limitation, enuring so as to encrease the estate of the ancestor from a tenancy for life to a fee-simple. And, had it been otherwise, had the heir (who is uncertain till the death of the ancestor) been allowed to take as a purchasor originally nominated in the deed, as must have been the case if the remainder had been expressly limited to Matthew or Thomas by name; then, in the times of strict feodal tenure, the lord would have been defrauded by such a limitation of the fruits of his signiory, arising from a descent to the heir.
What we call purchase, perquisitio, the feudists call conquest, conquaestus, or conquisitio[11]: both denoting any means of acquiring an estate out of the common course of inheritance. And this is still the proper phrase in the law of Scotland[12]; as it was among the Norman jurists, who stiled the first purchasor (that is, he who first brought the estate into the family which at present owns it) the conqueror or conquereur[13]. Which seems to be all that was meant by the appellation which was given to William the Norman, when his manner of ascending the throne of England was, in his own and his successors’ charters, and by the historians of the times, entitled conquaestus, and himself conquaestor or conquisitor[14]; signifying, that he was the first of his family who acquired the crown of England, and from whom therefore all future claims by descent must be derived: though now, from our disuse of the feodal sense of the word, together with the reflexion on his forcible method of acquisition, we are apt to annex the idea of victory to this name of conquest or conquisition; a title which, however just with regard to the crown, the conqueror never pretended with regard to the realm of England; nor, in fact, ever had[15].
The difference in effect, between the acquisition of an estate by descent and by purchase, consists principally in these two points: 1. That by purchase the estate acquires a new inheritable quality, and is descendible to the owner’s blood in general, and not the blood only of some particular ancestor. For, when a man takes an estate by purchase, he takes it not ut feudum paternum or maternum, which would descend only to the heirs by the father’s or the mother’s side: but he takes it ut feudum antiquum, as a feud of indefinite antiquity; whereby it becomes inheritable to his heirs general, first of the paternal, and then of the maternal line[16]. 2. An estate taken by purchase will not make the heir answerable for the acts of the ancestor, as an estate by descent will. For, if the ancestor by any deed, obligation, covenant, or the like, bindeth himself and his heirs, and dieth; this deed, obligation, or covenant, shall be binding upon the heir, so far forth only as he had any estate of inheritance vested in him (or in some other in trust for him[17]) by descent from that ancestor, sufficient to a answer the charge[18]; whether he remains in possession, or hath aliened it before action brought[19]: which sufficient estate is in law called assets; from the French word, allez, enough[20]. Therefore if a man covenants, for himself and his heirs, to keep my house in repair, I can then (and then only) compel his heir to perform this covenant, when he has an estate sufficient for this purpose, or assets, by descent from the covenantor: for though the covenant descends to the heir, whether he inherits any estate or no, it lies dormant, and is not compulsory, until he has assets by descent[21].
This is the legal signification of the word perquisitio, or purchase; and in this sense it includes the five following methods of acquiring a title to estates: 1. Escheat. 2. Occupancy. 3. Prescription. 4. Forfeiture. 5. Alienation. Of all these in their order.
I. Escheat, we may remember[22], was one of the fruits and consequences of feodal tenure. The word itself is originally French or Norman[23], in which language it signifies chance or accident; and with us denotes an obstruction of the course of descent, and a consequent determination of the tenure, by some unforeseen contingency: in which case the land naturally results back, by a kind of reversion, to the original, grantor or lord of the fee[24].
Escheat therefore being a title frequently vested in the lord by inheritance, as being the fruit of a signiory to which he was intitled by descent, (for which reason the lands escheating shall attend the signiory, and be inheritable by such only of his heirs as are capable of inheriting the other[25]) it may seem in such cases to fall more properly under the former general head of acquiring title to estates, viz. by descent, (being vested in him by act of law, and not by his own act or agreement) than under the present, by purchase. But it must be remembered that in order to complete this title by escheat, it is necessary that the lord perform an act of his own, by entering on the lands and tenements so escheated, or suing out a writ of escheat[26]: on failure of which, or by doing any act that amounts to an implied waiver of his right, as by accepting homage or rent of a stranger who usurps the possession, his title by escheat is barred[27]. It is therefore in some respect a title acquired by his own act, as well as by act of law. Indeed this may also be said of descents themselves, in which an entry or other seisin is required, in order to make a complete title; and therefore this distribution by our legal writers seems in this respect rather inaccurate: for, as escheats must follow the nature of the signiory to which they belong, they may vest by either purchase or descent, according as the signiory is vested. And, though sir Edward Coke considers the lord by escheat as in some respects the assignee of the last tenant[28], and therefore taking by purchase; yet, on the other hand, the lord is more frequently considered as being ultimus haeres, and therefore taking by descent in a kind of caducary succession.
The law of escheats is founded upon this single principle, that the blood of the person last seised in fee-simple is, by some means or other, utterly extinct and gone: and, since none can inherit his estate but such as are of his blood and consanguinity, it follows as a regular consequence, that when such blood is extinct, the inheritance itself must fail; the land must become what the feodal writers denominate feudum apertum; and must result back again to the lord of the fee, by whom, or by those whose estate he hath, it was given.
Escheats are frequently divided into those propter defectum sanguinis and those propter delictum tenentis: the one sort, if the tenant dies without heirs; the other, if his blood be attainted[29]. But both these species may well be comprehended under the first denomination only; for he that is attainted suffers an extinction of his blood, as well as he that dies without relations. The inheritable quality is expunged in one instance, and expires in the other; or, as the doctrine of escheats is very fully expressed in Fleta[30], “dominus capitalis feodi loco haeredis habetur, quoties per defectum vel delictum extinguitur sanguis tenentis.”
Escheats therefore arising merely upon the deficiency of the blood, whereby the descent is impeded, their doctrine will be better illustrated by considering the several cases wherein hereditary blood may be deficient, than by any other method whatsoever.
1, 2, 3. The first three cases, wherein inheritable blood is wanting, may be collected from the rules of descent laid down and explained in the preceding chapter, and therefore will need very little illustration or comment. First, when the tenant dies without any relations on the part of any of his ancestors: secondly, when he dies without any relations on the part of those ancestors from whom his estate descended: thirdly, when he dies without any relations of the whole blood. In two of these cases the blood of the first purchasor is certainly, in the other it is probably, at an end; and therefore in all of them the law directs, that the land shall escheat to the lord of the fee: for the lord would be manifestly prejudiced, if, contrary to the inherent condition tacitly annexed to all feuds, any person should be suffered to succeed to lands, who is not of the blood of the first feudatory, to whom for his personal merit the estate is supposed to have been granted.
-
A monster, which hath not the shape of mankind, but in any part evidently bears the resemblance of the brute creation, hath no inheritable blood, and cannot be heir to any land, albeit it be brought forth in marriage: but, although it hath deformity in any part of it’s body, yet if it hath human shape, it may be heir[31]. This is a very antient rule in the law of England[32]; and it’s reason is too obvious, and too shocking, to bear a minute discussion. The Roman law agrees with our own in excluding such births from successions[33]: yet accounts them, however, children in some respects, where the parents, or at least the father, could reap any advantage thereby[34]; (as the jus trium liberorum, and the like) esteeming them the misfortune, rather than the fault, of that parent. But our law will not admit a birth of this kind to be such an issue, as shall intitle the husband to be tenant by the curtesy[35]; because it is not capable of inheriting. And therefore, if there appears no other heir than such a prodigious birth, the land shall escheat to the lord.
-
Bastards are incapable of being heirs. Bastards, by our law, are such children as are not born either in lawful wedlock, or within a competent time after it’s determination[36]. Such are held to be nullius filii, the sons of nobody; for the maxim of law is, qui ex damnato coitu nascuntur, inter liberos non computantur[37]. Being thus the sons of nobody, they have no blood in them, at least no inheritable blood; consequently, none of the blood of the first purchasor: and therefore, if there be no other claimant than such illegitimate children, the land shall escheat to the lord[38]. The civil law differs from ours in this point, and allows a bastard to succeed to an inheritance, if after it’s birth the mother was married to the father[39]: and also, if the father had no lawful wife or child, then, even if the concubine was never married to the father, yet she and her bastard son were admitted each to one twelfth of the inheritance[40], and a bastard was likewise capable of succeeding to the whole of his mother’s estate, although she was never married; the mother being sufficiently certain, though the father is not[41]. But our law, in favour of marriage, is much less indulgent to bastards.
There is indeed one instance, in which our law has shewn them some little regard; and that is usually termed the case of bastard eignè and mulier puisnè. This happens when a man has a bastard son, and afterwards marries the mother, and by her has a legitimate son, who in the language of the law is called a mulier, or as Glanvil[42] expresses it in his Latin, filius mulieratus; the woman before marriage being concubina, and afterwards mulier. Now here the eldest son is bastard, or bastard eignè; and the younger son is legitimate, or mulier puisnè. If then the father dies, and the bastard eignè enters upon his land, and enjoys it to his death, and dies seised thereof, whereby the inheritance descends to his issue; in this case the mulier puisnè, and all other heirs, (though minors, feme-coverts, or under any incapacity whatsoever) are totally barred of their right[43]. And this, 1. As a punishment on the mulier for his negligence, in not entering during the bastard’s life, and evicting him. 2. Because the law will not suffer a man to be bastardized after his death, who entered as heir and died seised, and so passed for legitimate in his lifetime. 3. Because the canon law (following the civil) did allow such bastard eignè to be legitimate, on the subsequent marriage of his mother: and therefore the laws of England (though they would not admit either the civil or canon law to rule the inheritances of this kingdom, yet) paid such a regard to a person thus peculiarly circumstanced, that, after the land had descended to his issue, they would not unravel the matter again, and suffer his estate to be shaken. But this indulgence was shewn to no otger kind of bastard; for, if the mother was never married to the father, such bastard could have no colourable title at all[44].
As bastards cannot be heirs themselves, so neither can they have any heirs but those of their own bodies. For, as all collateral kindred consists in being derived from the same common ancestor, and as a bastard has no legal ancestors, he can have no collateral kindred; and, consequently, can have no legal heirs, but such as claim by a lineal descent from himself. And therefore if a bastard purchases land, and dies seised thereof without issue, and intestate, the land shall escheat to the lord of the fee[45].
- Aliens also are incapable of taking by descent, or inheriting[46]: for they are not allowed to have any inheritable blood in them; rather indeed upon a principle of national or civil policy, than upon reasons strictly feodal. Though, if lands had been suffered to fall into their hands who owe no allegiance to the crown of England, the design of introducing our feuds, the defence of the kingdom, would have been defeated. Wherefore if a man leaves no other relations but aliens, his land shall escheat to the lord.
As aliens cannot inherit, so far they are on a level with bastards; but, as they are also disabled to hold by purchase[47], they are under still greater disabilities. And, as they can neither hold by purchase, nor by inheritance, it is almost superfluous to say that they can have no heirs, since they can have nothing for an heir to inherit: but so it is expressly holden[48], because they have not in them any inheritable blood.
And farther, if an alien be made a denizen by the king’s letters patent, and then purchases lands, (which the law allows such a one to do) his son, born before his denization, shall not (by the common law) inherit those lands; but a son born afterwards may, even though his elder brother be living; for the father, before denization, had no inheritable blood to communicate to his eldest son; but by denization it acquires an hereditary quality, which will be transmitted to his subsequent posterity. Yet, if he had been naturalized by act of parliament, such eldest son might then have inherited; for that cancels all defects, and is allowed to have a retrospective energy, which simple denization has not[49].
Sir Edward Coke[50] also holds, that if an alien cometh into England, and there hath issue two sons, who are thereby natural born subjects; and one of them purchases land, and dies; yet neither of these brethren can be heir to the other. For the commune vinculum, or common stock of their consanguinity, is the father; and, as he had no inheritable blood in him, he could communicate none to his sons; and, when the sons can by no possibility be heirs to the father, the one of them shall not be heir to the other. And this opinion of his seems founded upon solid principles of the antient law; not only from the rule before cited[51], that cestuy, que doit inheriter al pere, doit inheriter al fits; but also because we have seen that the only feodal foundation upon which newly purchased land can possibly descend to a brother, is the supposition and fiction of law, that it descended from some one of his ancestors: but in this case as the immediate ancestor was an alien, from whom it could by no possibility descend, this should destroy the supposition, and impede the descent, and the land should be inherited ut feudum novum; that is, by none but the lineal descendants of the purchasing brother; and, on failure of them, should escheat to the lord of the fee. But this opinion hath been since overruled[52]: and it is now held for law, that the sons of an alien, born here, may inherit to each other. And reasonably enough upon the whole: for, as (in common purchases) the whole of the supposed descent from indefinite ancestors is but fictitious, the law may as well suppose the requisite ancestor as suppose the requisite descent.
It is also enacted, by the statute 11 & 12 W. III. c. 6. that all persons, being natural-born subjects of the king, may inherit and make their titles by descent from any of their ancestors lineal or collateral; although their father, or mother, or other ancestor, by, from, through, or under whom they derive their pedigrees, were born out of the king’s allegiance. But inconveniences were afterwards apprehended, in case persons should thereby gain a future capacity to inherit, who did not exist at the death of the person last seised. As, if Francis the elder brother of John Stiles be an alien, and Oliver the younger be a natural-born subject, upon John’s death without issue his lands will descend to Oliver the younger brother: now, if afterwards Francis hath a child, it was feared that, under the statute of king William, this newborn child might defeat the estate of his uncle Oliver. Wherefore it is provided, by the statute 25 Geo. II. c. 39. that no right of inheritance shall accrue by virtue of the former statute to any persons whatsoever, unless they are in being and capable to take as heirs at the death of the person last seised: — with an exception however to the case, where lands shall descend to the daughter of an alien; which daughter shall resign such inheritance to her after-born brother, or divide it with her after-born sisters, according to the usual rule[53] of descents by the common law.
- By attainder also, for treason or other felony, the blood of the person attainted is so corrupted, as to be rendered no longer inheritable.
Great care must be taken to distinguish between forfeiture of lands to the king, and this species of escheat to the lord; which, by reason of their similitude in some circumstances, and because the crown is very frequently the immediate lord of the fee and therefore entitled to both, have been often confounded together. Forfeiture of lands, and of whatever else the offender possessed, was the doctrine of the old Saxon law[54], as a part of punishment for the offence; and does not at all relate to the feodal system, nor is the consequence of any signiory or lordship paramount[55]: but, being a prerogative vested in the crown, was neither superseded nor diminished by the introduction of the Norman tenures; a fruit and consequence of which escheat must undoubtedly be reckoned. Escheat therefore operates in subordination to this more antient and superior law of forfeiture.
The doctrine of escheat upon attainder, taken singly, is this: that the blood of the tenant, by the commission of any felony, (under which denomination all treasons were formerly comprized[56]) is corrupted and stained, and the original donation of the feud is thereby determined, it being always granted to the vasal on the implied condition of dum bene se gesserit. Upon the thorough demonstration of which guilt, by legal attainder, the feodal covenant and mutual bond of fealty are held to be broken, the estate instantly falls back from the offender to the lord of the fee, and the inheritable quality of his blood is extinguished and blotted out for ever. In this situation the law of feodal escheat was brought into England at the conquest; and in general superadded to the antient law of forfeiture. In consequence of which corruption and extinction of hereditary blood, the land of all felons would immediately invest in the lord, but that the superior law of forfeiture intervenes, and intercepts it in it’s passage; in case of treason, forever; in case of other felony, for only a year and a day, after which time it goes to the lord in a regular course of escheat[57], as it would have done to the heir of the felon in case the feodal tenures had never been introduced. And that this is the true operation and genuine history of escheats will most evidently appear from this incident to gavelkind lands, (which seem to be the old Saxon tenure) that they are in no case subject to escheat for felony, though they are liable to forfeiture for treason[58].
As a consequence of this doctrine of escheat, all lands of inheritance immediately revesting in the lord, the wife of the felon was liable to lose her dower, till the statute 1 Edw. VI. c. 12. enacted, that albeit any person be attainted of misprision of treason, murder, or felony, yet his wife shall enjoy her dower. But she has not this indulgence where the antient law of forfeiture operates, for it is expressly provided by the statute 5 & 6 Edw. VI. c. 11. that the wife of one attaint of high treason shall not be endowed at all.
Hitherto we have only spoken of estates vested in the offender, at the time of his offence, or attainder. And here the law of forfeiture stops; but the law of escheat pursues the matter still farther. For, the blood of the tenant being utterly corrupted and extinguished, it follows, not only that all he now has should escheat from him, but also that he should be incapable of inheriting any thing for the future. This may farther illustrate the distinction between forfeiture and escheat. If therefore a father be seised in fee, and the son commits treason and is attainted, and then the father dies: here the land shall escheat to the lord; because the son, by the corruption of his blood, is incapable to be heir, and there can be no other heir during his life: but nothing shall be forfeited to the king, for the son never had any interest in the lands to forfeit[59]. In this case the escheat operates, and not the forfeiture; but in the following instance the forfeiture works, and not the escheat. As where a new felony is created by act of parliament, and it is provided (as is frequently the case) that it shall not extend to the corruption of blood: here the lands of the felon shall not escheat to the lord, but yet the profits of them shall be forfeited to the king so long as the offender lives[60].
There is yet a farther consequence of the corruption and extinction of hereditary blood, which is this: that the person attainted shall not only be incapable himself of inheriting, or transmitting his own property by heirship, but shall also obstruct the descent of lands or tenements to his posterity, in all cases where they are obliged to derive their title through him from any remoter ancestor. The chanel, which conveyed the hereditary blood from his ancestors to him, is not only exhausted for the present, but totally dammed up and rendered impervious for the future. This is a refinement upon the antient law of feuds, which allowed that the grandson might be heir to his grandfather, though the son in the intermediate generation was guilty of felony[61]. But, by the law of England, a man’s blood is so universally corrupted by attainder, that his sons can neither inherit to him nor to any other ancestor[62], at least on the part of their attainted father.
This corruption of blood cannot be absolutely removed but by authority of parliament. The king may excuse the public punishment of an offender; but cannot abolish the private right, which has accrued or may accrue to individuals as a consequence of the criminal’s attainder. He may remit a forfeiture, in which the interest of the crown is alone concerned: but he cannot wipe away the corruption of blood; for therein a third person hath an interest, the lord who claims by escheat. If therefore a man hath a son, and is attainted, and afterwards pardoned by the king; this son can never inherit to his father, or father’s ancestors; because his paternal blood, being once throughly corrupted by his father’s attainder, must continue so: but if the son had been born after the pardon, he might inherit; because by the pardon the father is made a new man, and may convey new inheritable blood to his after-born children[63].
Herein there is however a difference between aliens and persons attainted. Of aliens, who could never by any possibility be heirs, the law takes no notice: and therefore we have seen, that an alien elder brother shall not impede the descent to a natural-born younger brother. But in attainders it is otherwise: for if a man hath issue a son, and is attainted, and afterwards pardoned, and then hath issue a second son, and dies; here the corruption of blood is not removed from the eldest, and therefore he cannot be heir: neither can the youngest be heir, for he hath an elder brother living, of whom the law takes notice, as he once had a possibility of being heir; and therefore the younger brother shall not inherit, but the land shall escheat to the lord: though, had the elder died without issue in the life of the father, the younger son born after the pardon might well have inherited, for he hath no corruption of blood[64]. So if a man hath issue two sons, and the elder in the lifetime of the father hath issue, and then is attainted and executed, and afterwards the father dies, the lands of the father shall not descend to the younger son: for the issue of the elder, which had once a possibility to inherit, shall impede the descent to the younger, and the land shall escheat to the lord[65]. Sir Edward Coke in this case allows[66], that if the ancestor be attainted, his sons born before the attainder may be heirs to each other; and distinguishes it from the case of the sons of an alien, because in this case the blood was inheritable when imparted to them from the father: but he makes a doubt (upon the same principles, which are now overruled[67]) whether sons, born after the attainder, can inherit to each other; for they never had any inheritable blood in them.
Upon the whole it appears, that a person attainted is neither allowed to retain his former estate, nor to inherit any future one, nor to transmit any inheritance to his issue, either immediately from himself, or mediately through himself from any remoter ancestor; for his inheritable blood, which is necessary either to hold, to take, or to transmit any feodal property, is blotted out, corrupted, and extinguished for ever: the consequence of which is, that estates, thus impeded in their descent, result back and escheat to the lord.
This corruption of blood, thus arising from feodal principles, but perhaps extended farther than even those principles will warrant, has been long looked upon as a peculiar hardship: because, the oppressive parts of the feodal tenures being now in general abolished, it seems unreasonable to reserve one of their most inequitable consequences; namely, that the children should not only be reduced to present poverty, (which, however severe, is sufficiently justified upon reasons of public policy) but also be laid under future difficulties of inheritance, on account of the guilt of their ancestors. And therefore in most (if not all) of the new felonies, created by parliament since the reign of Henry the eighth, it is declared that they shall not extend to any corruption of blood: and by the statute 7 Ann. c. 21. (the operation of which is postponed by the statute 17 Geo. II. c. 39.) it is enacted, that, after the death of the pretender, and his sons, no attainder for treason shall extend to the disinheriting any heir, nor the prejudice of any person, other than the offender himself: which provisions have indeed carried the remedy farther, than was required by the hardship above complained of; which is only the future obstruction of descents, where the pedigree happens to be deduced through the blood of an attainted ancestor.
Before I conclude this head, of escheat, I must mention one singular instance in which lands held in fee-simple are not liable to escheat to the lord, even when their owner is no more, and hath left no heirs to inherit them. And this is the case of a corporation: for if that comes by any accident to be dissolved, the donor or his heirs shall have the land again in reversion, and not the lord by escheat: which is perhaps the only instance where a reversion can be expectant on a grant in fee-simple absolute. But the law, we are told[68], doth tacitly annex a condition to every such gift or grant, that if the corporation be dissolved, the donor or grantor shall re-enter; for the cause of the gift or grant faileth. This is indeed founded upon the self-same principle as the law of escheat; the heirs of the donor being only substituted instead of the chief lord of the fee: which was formerly very frequently the case in subinfeudations, or alienations of lands by a vasal to be holden as of himself; till that practice was restrained by the statute of quia emptores, 18 Edw. I. st. 1. to which this very singular instance still in some degree remains an exception.
There is one more incapacity of taking by descent, which, not being productive of any escheat, is not properly reducible to this head, and yet must not be passed over in silence. It is enacted by the statute 11 & 12 Will. III. c. 4. that every papist who shall not abjure the errors of his religion by taking the oaths to the government, and making the declaration against transubstantiation, within six months after he has attained the age of eighteen years, shall be incapable of inheriting, or taking, by descent as well as purchase, any real estates whatsoever; and his next of kin, being a protestant, shall hold them to his own use till such time as he complies with the terms imposed by the act. This incapacity is merely personal; it affects himself only, and does not destroy the inheritable quality of his blood, so as to impede the descent to others of his kindred. In like manner as, even in the times of popery, one who entered into religion and became a monk professed was incapable of inheriting lands, both in our own[69] and the feodal law; eo quod desiit esse miles seculi qui factus est miles Christi; nec beneficium pertinet ad eum qui non debet gerere officium[70]. But yet he was accounted only civiliter mortuus; he did not impede the descent to others, but the next heir was entitled to his or his ancestor’s estate.
These are the several deficiencies of hereditary blood, recognized by the law of England; which, so often as they happen, occasion lands to escheat to the original proprietary or lord.
↑ §. 12.
↑ Co. Litt. 18.
↑ Ibid.
↑ Lord Raym. 728.
↑ 1 Roll. Abr. 626.
↑ Salk. 241. Lord Raym. 728.
↑ 1 Roll. Abr. 627.
↑ 1 Rep. 104. 2 Lev. 60. Raym. 334.
↑ 1 Rep. 98.
↑ Co. Litt. 23.
↑ Crag. l. 1. t. 10. §. 18.
↑ Dalrymple of feuds. 210.
↑ Gr. Coustum. Gloss. c. 25. pag. 40.
↑ Spelm. Gloss. 145.
↑ See book I. ch. 3.
↑ See pag. 236.
↑ Stat. 29 Car. II. c. 3.
↑ 1 P. Wms. 777.
↑ Stat. 3 & 4 W. & M. c. 14.
↑ Finch. law. 119.
↑ Finch. Rep. 86.
↑ See pag. 72.
↑ Eschet or êchet, formed from the verb eschoir or êchoir, to happen.
↑ 1 Feud. 86. Co. Litt. 13.
↑ Co. Litt. 13.
↑ Bro. Abr. tit. escheat. 26.
↑ Ibid. tit. acceptance. 25. Co. Litt. 268.
↑ 1 Inst. 215.
↑ Co. Litt. 13. 92.
↑ l. 6. c. 1.
↑ Co. Litt. 7, 8.
↑ Qui contra formam humani generis converso more procreantur, ut si mulier monstrosum vel prodigiosum enixa sit, inter liberos non computentur. Partus tamen, cui natura aliquantulum addiderit vel diminuerit, ut si sex vel tantum quatuor digitos habuerit, bene debet inter liberos connumerari: et, si membra sint inutilia aut tortuosa, non tamen est partus monstrosus. Bracton. l. 1. c. 6. & l. 5. tr. 5. c. 30.
↑ Ff. 1. 5. 14.
↑ Ff. 50. 16. 135. Paul. 4 sent. 9. §. 63.
↑ Co. Litt. 29.
↑ See book I. ch. 16.
↑ Co. Litt. 8.
↑ Finch. law. 117.
↑ Nov. 89. c. 8.
↑ Ibid. c. 12.
↑ Cod. 6. 57. 5.
↑ l. 7. c. 1.
↑ Litt. §. 399. Co. Litt. 244.
↑ Litt. §. 400.
↑ Bract. l. 2. c. 7. Co. Litt. 244.
↑ Co. Litt. 8.
↑ Ibid. 2.
↑ Ibid. 1 Lev. 59.
↑ Co. Litt. 129.
↑ 1 Inst. 8.
↑ See pag. 223 and 239.
↑ 1 Ventr. 473. 1 Lev. 59. 1 Sid. 193.
↑ See pag. 208 and 214.
↑ LL. Aelfred. c. 4. LL. Canut. c. 54.
↑ 2 Inst. 64. Salk. 85.
↑ 3 Inst. 15. Stat. 25 Edw. III. c. 2. §. 12.
↑ 2 Inst. 36.
↑ Somner. 53. Wright. Ten. 118.
↑ Co. Litt. 13.
↑ 3 Inst. 47.
↑ Van Leeuwen in 2 Feud. 31.
↑ Co. Litt. 391.
↑ Ibid. 392.
↑ Co. Litt. 8.
↑ Dyer. 48.
↑ Co. Litt. 8.
↑ 1 Hal. P. C. 357.
↑ Co. Litt. 13.
↑ Co. Litt. 132.
↑ 2 Feud. 21.
Chapter the sixteenth.
Of TITLE by OCCUPANCY.
OCCUPANCY is the taking possession of those things, which before belonged to nobody. This, as we have seen[1], is the true ground and foundation of all property, or of holding those things in severalty, which by the law of nature, unqualified by that of society, were common to all mankind. But, when once it was agreed that every thing capable of ownership should have an owner, natural reason suggested, that he who could first declare his intention of appropriating any thing to his own use, and, in consequence of such intention, actually took it into possession, should thereby gain the absolute property of it; according to that rule of the law of nations, recognized by the laws of Rome[2], quod nullius est, id ratione naturali occupanti conceditur.
This right of occupancy, so far as it concerns real property, (for of personal chattels I am not in this place to speak) hath been confined by the laws of England within a very narrow compass; and was extended only to a single instance: namely, where a man was tenant pur auter vie, or had an estate granted to himself only (without mentioning his heirs) for the life of another man, and died during the life of cestuy que vie, or him by whose life it was holden: in this case he, that could first enter on the land, might lawfully retain the possession so long as cestuy que vie lived, by right of occupancy[3].
This seems to have been recurring to first principles, and calling in the law of nature to ascertain the property of the land, when left without a legal owner. For it did not revert to the grantor; who had parted with all his interest, so long as cestuy que vie lived: it did not escheat to the lord of the fee; for all escheats must be of the absolute entire fee, and not of any particular estate carved out of it; much less of so minute a remnant as this: it did not belong to the grantee; for he was dead: it did not descend to his heirs; for there were no words of inheritance in the grant: nor could it vest in his executors; for no executors could succeed to a freehold. Belonging therefore to nobody, like the haereditas jacens of the Romans, the law left it open to be seised and appropriated by the first person that could enter upon it, during the life of cestuy que vie, under the name of an occupant. But there was no right of occupancy allowed, where the king had the reversion of the lands; for the reversioner hath an equal right with any other man to enter upon the vacant possession, and where the king’s title and a subject’s concur, the king’s shall be always preferred: against the king therefore there could be no prior occupant, because nullum tempus occurrit regi[4]. And, even in the case of a subject, had the estate pur auter vie been granted to a man and his heirs during the life of cestuy que vie, there the heir might, and still may, enter and hold possession, and is called in law a special occupant; as having a special exclusive right, by the terms of the original grant, to enter upon and occupy this haereditas jacens, during the residue of the estate granted: though some have thought him so called with no very great propriety[5]; and that such estate is rather a descendible freehold. But the title of common occupancy is now reduced almost to nothing by two statutes; the one, 29 Car. II. c. 3. which enacts, that where there is no special occupant, in whom the estate may vest, the tenant pur auter vie may devise it by will, or it shall go to the executors and be assets in their hands for payment of debts: the other that of 14 Geo. II. c. 20. which enacts, that it shall vest not only in the executors, but, in case the tenant dies intestate, in the administrators also; and go in a course of distribution like a chattel interest.
By these two statutes the title of common occupancy is utterly extinct and abolished: though that of special occupancy, by the heir at law, continues to this day; such heir being held to succeed to the ancestor’s estate, not by descent, for then he must take an estate of inheritance, but as an occupant, specially marked out and appointed by the original grant. The doctrine of common occupancy may however be usefully remembered on the following account, among others: that, as by the common law no occupancy could be of incorporeal hereditaments, as of rents, tithes, advowsons, commons, or the like[6], (because, with respect to them, there could be no actual entry made, or corporal seisin had; and therefore by the death of the grantee pur auter vie a grant of such hereditaments was entirely determined[7]) so now, I apprehend, notwithstanding these statutes, such grant would be determined likewise; and the hereditaments would not be devisable, nor vest in the executors, nor go in a course of distribution. For the statutes must not be construed so as to create any new estate, or to keep that alive which by the common law was determined, and thereby to defer the grantor’s reversion; but merely to dispose of an interest in being, to which by law there was no owner, and which therefore was left open to the first occupant. When there is a residue left, the statutes give it to the executors, &c, instead of the first occupant; but they will not create a residue, on purpose to give it the executors. They only meant to provide an appointed instead of a casual, a certain instead of an uncertain, owner, of lands which before were nobody’s; and thereby to supply this casus omissus, and render the disposition of law in all respects entirely uniform: this being the only instance wherein a title to a real estate could ever be acquired by occupancy.
This, I say, was the only instance; for I think there can be no other case devised, wherein there is not some owner of the land appointed by the law. In the case of a sole corporation, as a parson of a church, when he dies or resigns, though there is no actual owner of the land till a successor be appointed, yet there is a legal, potential ownership, subsisting in contemplation of law; and when the successor is appointed, his appointment shall have a retrospect and relation backwards, so as to entitle him to all the profits from the instant that the vacancy commenced. And, in all other instances, when the tenant dies intestate, and no other owner of the lands is to be found in the common course of descents, there the law vests an ownership in the king, or in the subordinate lord of the fee, by escheat.
So also in some cases, where the laws of other nations give a right by occupancy, as in lands newly created, by the rising of an island in a river, or by the alluvion or dereliction of the sea; in these instances the law of England assigns them an immediate owner. For Bracton tells us[8], that if an island arise in the middle of a river, it belongs in common to those who have lands on each side thereof; but if it be nearer to one bank than the other, it belongs only to him who is proprietor of the nearest shore: which is agreeable to, and probably copied from, the civil law[9]. Yet this seems only to be reasonable, where the foil of the river is equally divided between the owners of the opposite shores: for if the whole soil is the freehold of any one man, as it must be whenever a several fishery is claimed[10], there it seems just (and so, is the usual practice) that the eyotts or little islands, arising in any part of the river, shall be the property of him who owneth the piscary and the soil. However, in case a new island rise in the sea, though the civil law gives it to the first occupant[11], yet ours gives it to the king[12]. And as to lands gained from the sea, either by alluvion, by the washing up of sand and earth, so as in time to make terra firma; or by dereliction, as when the sea shrinks back below the usual watermark; in these cases the law is held to be, that if this gain be by little and little, by small and imperceptible degrees, it shall go to the owner of the land adjoining[13]. For de minimis non curat lex: and, besides, these owners being often losers by the breaking in of the sea, or at charges to keep it out, this possible gain is therefore a reciprocal consideration for such possible charge or loss. But, if the alluvion or dereliction be sudden or considerable, in this case it belongs to the king; for, as the king is lord of the sea, and so owner of the soil while it is covered with water, it is but reasonable he should have the soil, when the water has left it dry[14]. So that the quantity of ground gained, and the time during which it is gaining, are what make it either the king’s, or the subject’s property. In the same manner if a river, running between two lordships, by degrees gains upon the one, and thereby leaves the other dry; the owner who loses his ground thus imperceptibly has no remedy: but if the course of the river be changed by a sudden and violent stood, or other hasty means, and thereby a man loses his ground, he shall have what the river has left in any other place, as a recompens for this sudden loss[15]. And this law of alluvions and derelictions, with regard to rivers, is nearly the same in the imperial law[16]; from whence indeed those our determinations seem to have been drawn and adopted: but we ourselves, as islanders, have applied them to marine increases; and have given our sovereign the prerogative he enjoys, as well upon the particular reasons before-mentioned, as upon this other general ground of prerogative, which was formerly remarked[17], that whatever hath no other owner is vested by law in the king.
↑ See pag. 3 & 8.
↑ Ff. 41. 1. 3.
↑ Co. Litt. 41.
↑ Ibid.
↑ Vaugh 201.
↑ Co. Litt. 41.
↑ Vaugh. 201.
↑ l. 2. c. 2.
↑ Inst. 2. 1. 22.
↑ Salk. 637.
↑ Inst. 2. 1. 18.
↑ Bract. l. 2. c. 2. Callis of sewers. 22.
↑ 2 Roll. Abr. 170. Dyer. 326.
↑ Callis. 24. 28.
↑ Ibid. 28.
↑ Inst. 2. 1. 20, 21, 22, 23, 24.
↑ See Vol. I. pag. 289.
Chapter the seventeenth.
Of TITLE by PRESCRIPTION.
A Third method of acquiring real property by purchase is that by prescription; as when a man can shew no other title to what he claims, than that he, and those under whom he claims, have immemorially used to enjoy it. Concerning customs, or immemorial usages, in general, with the several requisites and rules to be observed, in order to prove their existence and validity, we enquired at large in the preceding part of these commentaries[1]. At present therefore I shall only, first, distinguish between custom, strictly taken, and prescription; and then shew, what sort of things may be prescribed for.
And, first, the distinction between custom and prescription is this; that custom is properly a local usage, and not annexed to any person; such as, a custom in the manor of Dale that lands shall descend to the youngest son: prescription is merely a personal usage; as, that Sempronius, and his ancestors, or those whose estate he hath, have used time out of mind to have such an advantage or privilege[2]. As for example: if there be a usage in the parish of Dale, that all the inhabitants of that parish may dance on a certain close, at all times, for their recreation; (which is held[3] to be a lawful usage) this is strictly a custom, for it is applied to the place in general, and not to any particular persons; but if the tenant, who is seised of the manor of Dale in fee, alleges that he and his ancestors, or all those whose estate he hath in the said manor, have used time out of mind to have common of pasture in such a close, this is properly called a prescription; for this is a usage annexed to the person of the owner of this estate. All prescription must be either in a man and his ancestors, or in a man and those whose estate he hath[4]; which last is called prescribing in a que estate. And formerly a man might, by the common law, have prescribed for a right which had been enjoyed by his ancestors or predecessors at any distance of time, though his or their enjoyment of it had been suspended[5] for an indefinite series of years. But by the statute of limitations, 32 Hen. VIII. c. 2. it is enacted, that no person shall make any prescription by the seisin or possession of his ancestor or predecessor, unless such seisin or possession hath been within threescore years next before such prescription made[6].
Secondly, as to the several species of things which may, or may not, be prescribed for: we may in the first place, observe, that nothing but incorporeal hereditaments can be claimed by prescription; as a right of way, a common, &c; but that no prescription can give a title to lands, and other corporeal substances, of which more certain evidence may be had[7]. For no man can be said to prescribe, that he and his ancestors have immemorially used to hold the castle of Arundel: for this is clearly another sort of title; a title by corporal seisin and inheritance, which is more permanent, and therefore more capable of proof, than that of prescription. But, as to a right of way, a common, or the like, a man may be allowed to prescribe; for of these there is no corporal seisin, the enjoyment will be frequently by intervals, and therefore the right to enjoy them can depend on nothing else but immemorial usage. 2. A prescription must always be laid in him that is tenant of the fee. A tenant for life, for years, at will, or a copyholder, cannot prescribe, by reason of the imbecillity of their estates[8]. For, as prescription is usage beyond time of memory, it is absurd that they should pretend to prescribe, whose estates commenced within the remembrance of man. And therefore the copyholder must prescribe under cover of his lord’s estate, and the tenant for life under cover of the tenant in fee-simple. As, if tenant for life of a manor would prescribe for a right of common as appurtenant to the same, he must prescribe under cover of the tenant in fee-simple; and must plead, that John Stiles and his ancestors had immemorially used to have this right of common, appurtenant to the said manor, and that John Stiles demised the said manor, with it’s appurtenances, to him the said tenant for life. 3. A prescription cannot be for a thing which cannot be raised by grant. For the law allows prescription only in supply of the loss of a grant, and therefore every prescription presupposes a grant to have existed. Thus a lord of a manor cannot prescribe to raise a tax or toll upon strangers; for, as such claim could never have been good by any grant, it shall not be good by prescription[9]. 4. A fourth rule is, that what is to arise by matter of record cannot be prescribed for, but must be claimed by grant, entered on record; such as, for instance, the royal franchises of deodands, felons’ goods, and the like. These, not being forfeited till the matter on which they arise is found by the inquisition of a jury, and so made a matter of record, the forfeiture itself cannot be claimed by any inferior title. But the franchises of treafure-trove, waifs, estrays, and the like, may be claimed by prescription; for they arise from private contingencies, and not from any matter of record[10]. 5. Among things incorporeal, which may be claimed by prescription, a distinction must be made with regard to the manner of prescribing; that is, whether a man shall prescribe in a que estate, or in himself and his ancestors. For, if a man prescribes in a que estate, (that is, in himself and those whose estate he holds) nothing is claimable by this prescription, but such things as are incident, appendant, or appurtenant to lands; for it would be absurd to claim any thing as the consequence, or appendix, of an estate, with which the thing claimed has no connexion: but, if he prescribes in himself and his ancestors, he may prescribe for any thing whatsoever that lies in grant; not only things that are appurtenant, but also such as may be in gross[11]. Therefore a man may prescribe, that he, and those whose estate he hath in the manor of Dale, have used to hold the advowson of Dale, as appendant to that manor: but, if the advowson be a distinct inheritance, and not appendant, then he can only prescribe in his ancestors. So also a man may prescribe in a que estate for a common appurtenant to a manor; but, if he would prescribe for a common in gross, he must prescribe in himself and his ancestors. 6. Lastly, we may observe, that estates gained by prescription are not, of course, descendible to the heirs general, like other purchased estates, but are an exception to the rule. For, properly speaking, the prescription is rather to be considered as an evidence of a former acquisition, than as an acquisition de novo: and therefore, if a man prescribes for a right of way in himself and his ancestors, it will descend only to the blood of that line of ancestors in whom he so prescribes; the prescription in this case being indeed a species of descent. But, if he prescribes for it in a que estate, it will follow the nature of that estate in which the prescription is laid, and be inheritable in the same manner, whether that were acquired by descent or purchase: for every accessory followeth the nature of it’s principal.
↑ See Vol. I. pag. 75, &c.
↑ Co. Litt. 113.
↑ 1 Lev. 176.
↑ 4 Rep. 32.
↑ Co. Litt. 113.
↑ This title, of prescription, was well known in the Roman law by the name of usucapio; (Ff. 41. 3. 3.) so called, because a man, that gains a title by prescription, may be said usu rem capere.
↑ Dr & St. dial. 1. c. 8. Finch. 132.
↑ 4 Rep. 31, 32.
↑ 1 Ventr. 387.
↑ Co. Litt. 114.
↑ Litt. §. 183. Finch. L. 104.
Chapter the eighteenth.
Of TITLE by FORFEITURE.
FORFEITURE is a punishment annexed by law to some illegal act, or negligence, in the owner of lands, tenements, or hereditaments; whereby he loses all his interest therein, and they go to the party injured, as a recompense for the wrong which either he alone, or the public together with himself, hath sustained.
Lands, tenements, and hereditaments, may be forfeited in various degrees and by various means: 1. By crimes and misdemesnors. 2. By alienation contrary to law. 3. By non-presentation to a benefice, when the forfeiture is denominated a lapse. 4. By simony. 5. By non-performance of conditions. 6. By waste. 7. By breach of copyhold customs. 8. By bankruptcy.
I. The foundation and justice of forfeitures for crimes and misdemesnors, and the several degrees of those forfeitures, proportioned to the several offences, have been hinted at in the preceding volume[1]; but will be more properly considered, and more at large, in the fourth book of these commentaries. At present I shall only observe in general, that the offences which induce a forfeiture of lands and tenements to the crown are principally the following six; 1. Treason. 2. Felony. 3. Misprision of treason. 4. Praemunire. 5. Drawing a weapon on a judge, or striking any one in the presence of the king’s principal courts of justice. 6. Popish recusancy, or non-observance of certain laws enacted in restraint of papists. But at what time they severally commence, how far they extend, and how long they endure, will with greater propriety be reserved as the object of our future enquiries.
II. Lands and tenements may be forfeited by alienation, or conveying them to another, contrary to law. This is either alienation in mortmain, alienation to an alien, or alienation by particular tenants; in the two former of which cases the forfeiture arises from the incapacity of the alienee to take, in the latter from the incapacity of the alienor to grant.
- Alienation in mortmain, in mortua manu, is an alienation of lands or tenements to any corporation, sole or aggregate, ecclesiastical or temporal. But these purchases have been chiefly made by religious houses, in consequence whereof the lands became perpetually inherent in one dead hand, this hath occasioned the general appellation of mortmain to be applied to such alienations[2], and the religious houses themselves to be principally considered in forming the statutes of mortmain: in deducing the history of which statutes, it will be matter of curiosity to observe the great address and subtile contrivance of the ecclesiastics in eluding from time to time the laws in being, and the zeal with which successive parliaments have pursued them through all their finesses; how new remedies were still the parents of new evasions; till the legislature at last, though with difficulty, hath obtained a decisive victory.
By the common law any man might dispose of his lands to any other private man at his own discretion, especially when the feodal restraints of alienation were worn away. Yet in consequence of these it was always, and is still, necessary[3], for corporations to have a licence of mortmain from the crown, to enable them to purchase lands: for as the king is the ultimate lord of every fee, he ought not, unless by his own consent, to lose his privilege of escheats and other feodal profits, by the vesting of lands in tenants that can never be attainted or die. And such licences of mortmain seem to have been necessary among the Saxons, above sixty years before the Norman conquest[4]. But, besides this general licence from the king, as lord paramount of the kingdom, it was also requisite, whenever there was a mesne or intermediate lord between the king and the alienor, to obtain his licence also (upon the same feodal principles) for the alienation of the specific land. And if no such licence was obtained, the king or other lord might respectively enter on the lands so aliened in mortmain, as a forfeiture. The necessity of this licence from the crown was acknowleged by the constitutions of Clarendon[5], in respect of advowsons, which the monks always greatly coveted, as being the groundwork of subsequent appropriations[6]. Yet such were the influence and ingenuity of the clergy, that (notwithstanding this fundamental principle) we find that the largest and most considerable dotations of religious houses happened within less than two centuries after the conquest. And (when a licence could not be obtained) their contrivance seems to have been this: that, as the forfeiture for such alienations accrued in the first place to the immediate lord of the fee, the tenant who meant to alienate first conveyed his lands to the religious house, and instantly took them back again, to hold as tenant to the monastery; which kind of instantaneous seisin was probably held not to occasion any forfeiture: and then, by pretext of some other forfeiture, surrender, or escheat, the society entered into those lands in right of such their newly acquired signiory, as immediate lords of the fee. But, when these dotations began to grow numerous, it was observed that the feodal services, ordained for the defence of the kingdom, were every day visibly withdrawn; that the circulation of landed property from man to man began to stagnate; and that the lords were curtailed of the fruits of their signiories, their escheats, wardships, reliefs, and the like: and therefore, in order to prevent this, it was ordained by the second of king Henry III’s great charters[7], and afterwards by that printed in our common statute books, that all such attempts should be void, and the land forfeited to the lord of the fee[8].
But, as this prohibition extended only to religious houses, bishops and other sole corporations were not included therein; and the aggregate ecclesiastical bodies (who, sir Edward Coke observes[9], in this were to be commended, that they ever had of their counsel the best learned men that they could get) found many means to creep out of this statute, by buying in lands that were bona fide holden of themselves as lords of the fee, and thereby evading the forfeiture; or by taking long leases for years, which first introduced those extensive terms, for a thousand or more years, which are now so frequent in conveyances. This produced the statute de religiosis, 7 Edw. I; which provided, that no person, religious or other whatsoever, should buy, or sell, or receive, under pretence of a gift, or term of years, or any other title whatsoever, nor should by any art or ingenuity appropriate to himself, any lands or tenements in mortmain; upon pain that the immediate lord of the fee, or, on his default for one year, the lords paramount, and, in default of all of them, the king, might enter thereon as a forfeiture.
This seemed to be a sufficient security against all alienations in mortmain: but, as these statutes extended only to gifts and conveyances between the parties, the religious houses now began to set up a fictitious title to the land, which it was intended they should have, and to bring an action to recover it against the tenant; who, by fraud and collusion, made no defence, and thereby judgment was given for the religious house, which then recovered the land by sentence of law upon a supposed prior title. And thus they had the honour of inventing those fictitious adjudications of right, which are since become the great assurance of the kingdom, under the name of common recoveries. But upon this the statute of Westminster the second, 13 Edw. I. c. 32. enacted, that in such cases a jury shall try the true right of the demandants or plaintiffs to the land, and if the religious house or corporation be found to have it, they shall still recover seisin; otherwise it shall be forfeited to the immediate lord of the fee, or else to the next lord, and finally to the king, upon the immediate or other lord’s default. And the like provision was made by the succeeding chapter[10], in case the tenants set up crosses upon their lands (the badges of knights templars and hospitallers) in order to protect them from the feodal demands of their lords, by virtue of the privileges of those religious and military orders. And so careful was this provident prince to prevent any future evasions, that when the statute of quia emptores, 18 Edw. I. abolished all subinfeudations, and gave liberty for all men to alienate their lands, to be holden of the next immediate lord[11], a proviso was inserted[12] that this should not extend to authorize any kind of alienation in mortmain. And when afterwards the method of obtaining the king’s licence by writ of ad quod damnum was marked out, by the statute 27 Edw. I. st. 2. it was farther provided by statute 34 Edw. I. st. 3. that no such licence should be effectual, without the consent of the mesne or intermediate lords.
Yet still it was found difficult to set bounds to ecclesiastical ingenuity: for when they were driven out of all their former holds, they devised a new method of conveyance, by which the lands were granted, not to themselves directly, but to nominal feoffees to the use of the religious houses; thus distinguishing between the possession and the use, and receiving the actual profits, while the seisin of the land remained in the nominal feoffee: who was held by the courts of equity (then under the direction of the clergy) to be bound in conscience to account to his cestuy que use for the rents and emoluments of the estate. And it is to these inventions that our practisers are indebted for the introduction of uses and trusts, the foundation of modern conveyancing. But, unfortunately for the inventors themselves, they did not long enjoy the advantage of their new device, for the statute 15 Ric. II. c. 5. enacts, that the lands which had been so purchased to uses should be amortised by licence from the crown, or else be sold to private persons; and that, for the future, uses shall be subject to the statutes of mortmain, and forfeitable like the lands themselves. And whereas the statutes had been eluded by purchasing large tracts of land, adjoining to churches, and consecrating them by the name of church-yards, such subtle imagination is also declared to be within the compass of the statutes of mortmain. And civil or lay corporations, as well as ecclesiastical, are also declared to be within the mischief, and of course within the remedy provided by those salutary laws. And, lastly, as during the times of popery lands were frequently given to superstitious uses, though not to any corporate bodies; or were made liable in the hands of heirs and devisees to the charge of obits, chaunteries, and the like, which were equally pernicious in a well-governed state as actual alienations in mortmain; therefore, at the dawn of the reformation, the statute 23 Hen. VIII. c. 10. declares, that all future grants of lands for any of the purposes aforesaid, if granted for any longer term than twenty years, shall be void.
But, during all this time, it was in the power of the crown, by granting a licence of mortmain, to remit the forfeiture, so far as related to it’s own rights; and to enable any spiritual or other corporation to purchase and hold any lands or tenements in perpetuity: which prerogative is declared and confirmed by the statute 18 Edw. III. st. 3. c. 3. But, as doubts were conceived at the time of the revolution how far such licence was valid[13], since the king had no power to dispense with the statutes of mortmain by a clause of non obstante[14], which was the usual course, though it seems to have been unnecessary[15]; and as, by the gradual declension of mesne signiories through the long operation of the statute of quia emptores, the rights of intermediate lords were reduced to a very small compass; it was therefore provided by the statute 7 & 8 W. III. c. 37. that the crown for the future at it’s own discretion may grant licences to aliene or take in mortmain, of whomsoever the tenements may be holden.
After the dissolution of monasteries under Henry VIII, though the policy of the next popish successor affected to grant a security to the possessors of abbey lands, yet, in order to regain so much of them as either the zeal or timidity of their owners might induce them to part with, the statutes of mortmain were suspended for twenty years by the statute 1 & 2 P. & M. c. 8. and, during that time, any lands or tenements were allowed to be granted to any spiritual corporation without any licence whatsoever. And, long afterwards, for a much better purpose, the augmentation of poor livings, it was enacted by the statute 17 Car. II. c. 3. that appropriators may annex the great tithes to the vicarages; and that all benefices under 100𝑙. per annum may be augmented by the purchase of lands, without licence of mortmain in either case: and the like provision hath been since made, in favour of the governors of queen Anne’s bounty[16]. It hath also been held[17], that the statute 23 Hen. VIII. before-mentioned did not extend to any thing but superstitious uses; and that therefore a man may give lands for the maintenance of a school, an hospital, or any other charitable uses. But as it was apprehended from recent experience, that persons on their deathbeds might make large and improvident dispositions even for these good purposes, and defeat the political ends of the statutes of mortmain; it is therefore enacted by the statute 9 Geo. II. c. 36. that no lands or tenements, or money to be laid out thereon, shall be given for or charged with any charitable uses whatsoever, unless by deed indented, executed in the pretence of two witnesses twelve calendar months before the death of the donor, and enrolled in the court of chancery within six months after it’s execution, (except stocks in the public funds, which may be transferred within six months previous to the donor’s death) and unless such gift be made to take effect immediately, and be without power of revocation: and that all other gifts shall be void. The two universities, their colleges, and the scholars upon the foundation of the colleges of Eaton, Winchester, and Westminster, are excepted out of this act: but such exemption was granted with this proviso, that no college shall be at liberty to purchase more advowsons, than are equal in number to one moiety of the fellows or students, upon the respective foundations.
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Secondly, alienation to an alien is also a cause of forfeiture to the crown of the lands so alienated, not only on account of his incapacity to hold them, which occasions him to be passed by in descents of lands[18], but likewise on account of his presumption in attempting, by an act of his own, to acquire any real property; as was observed in the preceding volume[19].
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Lastly, alienations by particular tenants, when they are greater than the law entitles them to make, and devest the remainder or reversion[20], are also forfeitures to him whose right is attacked thereby. As, if tenant for his own life alienes by feoffment or fine for the life of another, or in tail, or in fee; these being estates, which either must or may last longer than his own, the creating them is not only beyond his power, and inconsistent with the nature of his interest, but is also a forfeiture of his own particular estate tohim in remainder or reversion[21]. For which there seem to be two reasons. First, because such alienation amounts to a renuntiation of the feodal connexion and dependence; it implies a refusal to perform the due renders and services to the lord of the fee, of which fealty is constantly one; and it tends in it’s consequence to defeat and devest the remainder or reversion expectant: as therefore that is put in jeopardy, by such act of the particular tenant, it is but just that, upon discovery, the particular estate should be forfeited and taken from him, who has shewn so manifest an inclination to make an improper use of it. The other reason is, because the particular tenant, by granting a larger estate than his own, has by his own act determined and put an entire end to his own original interest; and on such determination the next taker is entitled to enter regularly, as in his remainder or reversion. The same law, which is thus laid down with regard to tenants for life, holds also with respect to all tenants of the mere freehold, or of chattel interests; but if tenant in tail alienes in fee, this is no immediate forfeiture to the remainder-man, but a mere discontinuance (as it is called[22]) of the estate-tail, which the issue may afterwards avoid by due course of law[23]: for he in remainder or reversion hath only a very remote and barely possible interest therein, until the issue in tail is extinct. But, in case of such forfeitures by particular tenants, all legal estates by them before created, as if tenant for twenty years grants a lease for fifteen, and all charges by him lawfully made on the lands, shall be good and available in law[24]. For the law will not hurt an innocent lessee for the fault of his lessor; nor permit the lessor, after he has granted a good and lawful estate, by his own act to avoid it, and defeat the interest which he himself has created.
Equivalent, both in it’s nature and it’s consequences, to an illegal alienation by the particular tenant, is the civil crime of disclaimer; as where a tenant, who holds of any lord, neglects to render him the due services, and, upon an action brought to recover them, disclaims to hold of his lord. Which disclaimer of tenure in any court of record is a forfeiture of the lands to the lord[25], upon reasons most apparently feodal. And so likewise, if in any court of record the particular tenant does any act which amounts to a virtual disclaimer; if he claims any greater estate than was granted him at the first infeodation, or takes upon himself those rights which belong only to tenants of a superior class[26]; if he affirms the reversion to be in a stranger, by accepting his fine, attorning as his tenant, collusive pleading, and the like[27]; such behaviour amounts to a forfeiture of his particular estate.
III. Lapse is a species of forfeiture, whereby the right of presentation to a church accrues to the ordinary by neglect of the patron to present, to the metropolitan by neglect of the ordinary, and to the king by neglect of the metropolitan. For it being for the interest of religion, and the good of the public, that the church should be provided with an officiating minister, the law has therefore given this right of lapse, in order to quicken the patron; who might otherwise, by suffering the church to remain vacant, avoid paying his ecclesiastical dues, and frustrate the pious intentions of his ancestors. This right of lapse was first established about the time (though not by the authority[28]) of the council of Lateran[29], which was in the reign of our Henry the second, when the bishops first began to exercise universally the right of institution to churches[30]. And therefore, where there is no right of institution, there is no right of lapse: so that no donative can lapse to the ordinary[31], unless it hath been augmented by the queen’s bounty[32]. But no right of lapse can accrue, when the original presentation is in the crown[33].
The term, in which the title to present by lapse accrues from the one to the other successively, is six calendar months[34]; (following in this case the computation of the church, and not the usual one of the common law) and this exclusive of the day of the avoidance[35]. But, if the bishop be both patron and ordinary, he shall not have a double time allowed him to collate in[36]; for the forfeiture accrues by law, whenever the negligence has continued six months in the same person. And also, if the bishop doth not collate his own clerk immediately to the living, and the patron presents, though after the six months are lapsed, yet his presentation is good, and the bishop is bound to institute the patron’s clerk[37]. For as the law only gives the bishop this title by lapse, to punish the patron’s negligence, there is no reason that, if the bishop himself be guilty of equal or greater negligence, the patron should be deprived of his turn. If the bishop suffer the presentation to lapse to the metropolitan, the patron also has the same advantage if he presents before the arch-bishop has filled up the benefice; and that for the same reason. Yet the ordinary cannot, after lapse to the metropolitan, collate his own clerk to the prejudice of the arch-bishop[38]. For he had no permanent right and interest in the advowson, as the patron hath, but merely a temporary one; which having neglected to make use of during the time, he cannot afterwards retrieve it. But if the presentation lapses to the king, prerogative here intervenes and makes a difference; and the patron shall never recover his right, till the king has satisfied his turn by presentation: for nullum tempus occurrit regi[39]. And therefore it may seem, as if the church might continue void for ever, unless the king shall be pleased to present; and a patron thereby be absolutely defeated of his advowson. But to prevent this inconvenience, the law has lodged a power, in the patron’s hands, of as it were compelling the king to present. For if, during the delay of the crown, the patron himself presents, and his clerk is instituted, the king indeed by presenting another may turn out the patron’s clerk; but if he does not, and the patron’s clerk dies incumbent, or is canonically deprived, the king hath lost his right, which was only to the next or first presentation[40].
In case the benefice becomes void by death, the cession through plurality of benefices, there the patron is bound to take notice of the vacancy at his own peril; for these are matters of equal notoriety to the patron and ordinary: but in case of a vacancy by resignation, or canonical deprivation, or if a clerk presented be refused for insufficiency, these being matters of which the bishop alone is presumed to be cognizant, here the law requires him to give notice thereof to the patron, otherwise he can take no advantage by way of lapse[41]. Neither shall any lapse thereby accrue to the metropolitan or to the king; for it is universally true, that neither the arch-bishop or the king shall ever present by lapse, but where the immediate ordinary might have collated by lapse, within the six months, and hath exceeded his time: for the first step or beginning faileth, et quod non habet principium, non habet finem[42]. If the bishop refuse or neglect to examine and admit the patron’s clerk, without good reason assigned or notice given, he is stiled a disturber by the law, and shall not have any title to present by lapse; for no man shall take advantage of his own wrong[43]. Also if the right of presentation be litigious or contested, and an action be brought against the bishop to try the title, no lapse shall incur till the question of right be decided[44].
IV. By simony, the right of presentation to a living is forfeited, and vested pro hac vice in the crown. Simony is the corrupt presentation of any one to an ecclesiastical benefice for money, gift, or reward. It is so called from the resemblance it is said to bear to the sin of Simon Magus, though the purchasing of holy orders seems to approach nearer to his offence. It was by the canon law a very grievous crime: and is so much the more odious, because, as sir Edward Coke observes[45], it is ever accompanied with perjury: for the presentee is sworn to have committed no simony. However it is not an offence punishable in a criminal way at the common law[46]; it being thought sufficient to leave the clerk to ecclesiastical censures. But as these did not affect the simoniacal patron, nor were efficacious enough to repel the notorious practice of the thing, divers acts of parliament have been made to restrain it by means of civil forfeitures; which the modern prevailing usage, with regard to spiritual preferments, calls aloud to be put in execution. I shall briefly consider them in this place, because they divest the corrupt patron of the right of presentation, and vest a new right in the crown.
By the statute 31 Eliz. c. 6. it is for avoiding of simony enacted, that if any patron for any corrupt consideration, by gift or promise, directly or indirectly, shall present or collate any person to an ecclesiastical benefice or dignity; such presentation shall be void, and the presentee be rendered incapable of ever enjoying the same benefice: and the crown shall present to it for that turn only[47]. Also by the statute 12 Ann. st. 2. c. 12. if any person for money or profit shall procure, in his own name or the name of any other, the next presentation to any living ecclesiastical, and shall be presented thereupon, this is declared to be a simoniacal contract; and the party is subjected to all the ecclesiastical penalties of simony, is disabled from holding the benefice, and the presentation devolves to the crown.
Upon these statutes many questions have arisen, with regard to what is, and what is not simony. And, among others, these points seem to be clearly settled: 1. That to purchase a presentation, the living being actually vacant, is open and notorious simony[48]; this being expressly in the face of the statute. 2. That for a clerk to bargain for the next presentation, the incumbent being sick and about to die, was simony, even before the statute of queen Anne[49]: and now, by that statute, to purchase, either in his own name or another’s, the next presentation, and be thereupon presented at any future time to the living, is direct and palpable simony. But, 3. It is held that for a father to purchase such a presentation, in order to provide for his son, is not simony: for the son is not concerned in the bargain, and the father is by nature bound to make a provision for him[50]. 4. That if a simoniacal contract be made with the patron, the clerk not being privy thereto, the presentation for that turn shall indeed devolve to the crown, as a punishment of the guilty patron; but the clerk, who is innocent, does not incur any disability or forfeiture[51]. 5. That bonds given to pay money to charitable uses, on receiving a presentation to a living, are not simoniacal[52], provided the patron or his relations be not benefited thereby[53]; for this is no corrupt consideration, moving to the patron. 6. That bonds of resignation, in case of non-residence or taking any other living, are not simoniacal[54]; there being no corrupt consideration herein, but such only as is for the good of the public. So also bonds to resign, when the patron’s son comes to canonical age, are legal; upon the reason before given, that the father is bound to provide for his son[55]. 7. Lastly, general bonds to resign at the patron’s request are held to be legal[56]: for they may possibly be given for one of the legal considerations before-mentioned; and where there is a possibility that a transaction may be fair, the law will not suppose it iniquitous without proof. But, if the party can prove the contract to have been a corrupt one, such proof will be admitted, in order to shew the bond simoniacal, and therefore void. Neither will the patron be suffered to make an ill use of such a general bond of resignation; as by extorting a composition for tithes, procuring an annuity for his relation, or by demanding a resignation wantonly and without good cause, such as is approved by the law; as, for the benefit of his own son, or on account of non-residence, plurality of livings, or gross immorality in the incumbent[57].
V. The next kind of forfeitures are those by breach or non-performance of a condition annexed to the estate, either expressly by deed at it’s original creation, or impliedly by law from a principle of natural reason. Both which we considered at large in a former chapter[58].
VI. I therefore now proceed to another species of forfeiture, viz. by waste. Waste, vastum, is a spoil or destruction in houses, gardens, trees, or other corporeal hereditaments, to the disherison of him that hath the remainder or reversion in fee-simple or fee-tail[59].
Waste is either voluntary, which is a crime of commission, as by pulling down a house; or it is permissive, which is a matter of omission only, as by suffering it to fall for want of necessary reparations. Whatever does a lasting damage to the freehold or inheritance is waste[60]. Therefore removing wainscot, floors, or other things once fixed to the freehold of a house, is waste[61]. If a house be destroyed by tempest, lightening, or the like, which is the act of providence, it is no waste: but otherwise, if the house be burnt by the carelessness or negligence of the lessee; though now by the statute 6 Ann. c. 31. no action will lie against a tenant for an accident of this kind. Waste may also be committed in ponds, dove-houses, warrens, and the like; by so reducing the number of the creatures therein, that there will not be sufficient for the reversioner when he comes to the inheritance[62]. Timber also is part of the inheritance[63]. Such are oak, ash, and elm in all places: and in some particular countries, by local custom, where other trees are generally used for building, they are thereupon considered as timber; and to cut down such trees, or top them, or do any other adl whereby the timber may decay, is waste[64]. But underwood the tenant may cut down at any seasonable time that he pleases[65]; and may take sufficient estovers of common right for house-bote and cart-bote; unless restrained (which is usual) by particular covenants or exceptions[66]. The conversion of land from one species to another is waste. To convert wood, meadow, or pasture, into arable; to turn arable, meadow, or pasture into woodland; or to turn arable or woodland into meadow or pasture; are all of them waste[67]. For, as sir Edward Coke observes[68], it not only changes the course of husbandry, but the evidence of the estate; when such a close, which is conveyed and described as pasture, is found to be arable, and e converso. And the same rule is observed, for the same reason, with regard to converting one species of edifice into another, even though it is improved in it’s value[69]. To open the land to search for mines of metal, coal, &c, is waste; for that is a detriment to the inheritance[70]: but, if the pits or mines were open before, it is no waste for the tenant to continue digging them for his own use[71]; for it is now become the mere annual profit of the land. These three are the general heads of waste, viz. in houses, in timber, and in land. Though, as was before said, whatever tends to the destruction, or depreciating the value, of the inheritance, is considered by the law as waste.
Let us next see, who are liable to be punished for committing waste. And by the feodal law, feuds being originally granted for life only, we find that the rule was general for all vasals or feudatories; “si vasallus feudum dissipaverit, aut insigni detrimento deterius fecerit, privabitur[72].” But in our antient common law the rule was by no means so large; for not only he that was seised of an estate of inheritance might do as he pleased with it, but also waste was not punishable in any tenant, save only in three persons; guardian in chivalry, tenant in dower, and tenant by the curtesy[73]; and not in tenant for life or years[74]. And the reason of the diversity was, that the estate of the three former was created by the act of the law itself, which therefore gave a remedy against them: but tenant for life, or for years, came in by the demise and lease of the owner of the fee, and therefore he might have provided against the committing of waste by his lessee; and if he did not, it was his own default. But, in favour of the owners of the inheritance, the statutes of Marlbridge[75] and Glocester[76] provided, that the writ of waste shall not only lie against tenants by the law of England, (or curtesy) and those in dower, but against any farmer or other that holds in any manner for life or years. So that, for above five hundred years past, all tenants for life or for any less estate, have been punishable or liable to be impeached for waste, both voluntary and permissive; unless their leases be made, as sometimes they are, without impeachment of waste, absque impetitione vasti; that is, with a provision or protection that no man shall impetere, or sue him, for waste committed.
The punishment for waste committed was, by common law and the statute of Marlbridge, only single damages[77]; except in the case of a guardian, who also forfeited his wardship[78] by the provisions of the great charter[79]: but the statute of Glocester directs, that the other four species of tenants shall lose and forfeit the place wherein the waste is committed, and also treble damages, to him that hath the inheritance. The expression of the statute is, “he shall forfeit the thing which he hath wasted;” and it hath been determined, that under these words the place is also included[80]. And if waste be done sparsim, or here and there, all over a wood, the whole wood shall be recovered; or if in several rooms of a house, the whole house shall be forfeited[81]; because it is impracticable for the reversioner to enjoy only the identical places wasted, when lying interspersed with the other. But if waste be done only in one end of a wood (or perhaps in one room of a house) if that can be conveniently separated from the rest, that part only is the locus vastatus, or thing wasted, and that only shall be forfeited to the reversioner[82].
VII. A seventh species of forfeiture is that of copyhold estates, by breach of the customs of the manor. Copyhold estates are not only liable to the same forfeitures as those which are held in socage, for treason, felony, alienation, and waste; whereupon the lord may seise them without any presentment by the homage[83]; but also to peculiar forfeitures, annexed to this species of tenure, which are incurred by the breach of either the general customs of all copyholds, or the peculiar local customs of certain particular manors. And we may observe that, as these tenements were originally holden by the lowest and most abject vasals, the marks of feodal dominion continue much the strongest upon this mode of property. Most of the offences, which occasioned a resumption of the fief by the feodal law, and were denominated feloniae, per quas vasallus amitteret feudum[84], still continue to be causes of forfeiture in many of our modern copyholds. As, by subtraction of suit and service[85]; si dominum deservire noluerit[86]: by disclaiming to hold of the lord, or swearing himself not his copyholder[87]; si dominum ejuravit, i. e. negavit se a domino feudum habere[88]: by neglect to be admitted tenant within a year and a day[89]; si per annum et diem cessaverit in petenda investitura[90]: by contumacy in not appearing in court after three proclamations[91]; si a domino ter citatus non comparuerit[92]: or by refusing, when sworn of the homage, to present the truth according to his oath[93]; si pares veritatem noverint, et dicant se nescire, cum sciant[94]. In these, and a variety of other cases, which it is impossible here to enumerate, the forfeiture does not accrue to the lord till after the offences are presented by the homage, or jury of the lord’s court baron[95]; per laudamentum parium suorum[96]: or, as it is more fully expressed in another place[97], nemo miles adimatur de possessione sui beneficii nisi convicta culpa, quae sit laudanda[98] per judicium parium suorum.
VIII. The eighth and last method, whereby lands and tenements may become forfeited, is that of bankruptcy, or the act of becoming a bankrupt: which unfortunate person may, from the several descriptions given of him in our statute law, be thus defined; a trader, who secretes himself, or does certain other acts, tending to defraud his creditors.
Who shall be such a trader, or what acts are sufficient to denominate him a bankrupt, with the several connected consequences resulting from that unhappy situation, will be better considered in a subsequent chapter; when we shall endeavour more fully to explain it’s nature, as it most immediately relates to personal goods and chattels. I shall only here observe the manner in which the property of lands and tenements are transferred, upon the supposition that the owner of them is clearly and indisputably a bankrupt, and that a commission of bankrupt is awarded and issued against him.
By the statute 13 Eliz. c. 7. the commissioners for that purpose, when a man is declared a bankrupt, shall have full power to dispose of all his lands and tenements, which he had in his own right at the time when he became a bankrupt, or which shall descend or come to him at any time afterwards, before his debts are satisfied or agreed for; and all lands and tenements which were purchased by him jointly with his wife or children to his own use, (or such interest therein as he may lawfully part with) or purchased with any other person upon secret trust for his own use; and to cause them to be appraised to their full value, and to sell the same by deed indented and inrolled, or divide them proportionably among the creditors. The statute expressly includes not only free, but copyhold, lands: but did not extend to estates-tail, farther than for the bankrupt’s life; nor to equities of redemption on a mortgaged estate, wherein the bankrupt has no legal interest, but only an equitable reversion. Whereupon the statute 21 Jac. I. c. 19. enacts, that the commissioners shall be impowered to sell or convey, by deed indented and inrolled, any lands or tenements of the bankrupt, wherein he shall be seised of an estate-tail in possession, remainder, or reversion, unless the remainder or reversion thereof shall be in the crown; and that such sale shall be good against all such issues in tail, remaindermen, and reversioners, whom the bankrupt himself might have barred by a common recovery, or other means: and that all equities of redemption upon mortgaged estates, shall be at the disposal of the commissioners; for they shall have power to redeem the same, as the bankrupt himself might have done, and after redemption to sell them. And also, by this and a former act[99], all fraudulent conveyances to defeat the intent of these statutes are declared void; but that no purchaser bona fide, for a good or valuable consideration, shall be affected by the bankrupt laws, unless the commission be sued forth within five years after the act of bankruptcy committed.
By virtue of these statutes a bankrupt may lose all his real estates; which may at once be transferred by his commissioners to their assignees, without his participation or consent.
↑ Vol. I. pag. 289.
↑ See Vol. I. pag. 467.
↑ F. N. B. 121.
↑ Selden. Jan. Angl. l. 2. §. 45.
↑ Ecclesiae de feudo domini regis non possunt in perpetuum dari, absque assensu et consensione ipsius. c. 2. A. D. 1164.
↑ See Vol. I. pag. 373.
↑ A. D. 1217. cap. 43. edit. Oxon.
↑ Non licet alicui de caetero dare terram suam alicui domui religiosae, ita quod illam resumat tenendum de eadem domo; nec liceat alicui domui religiosae terram alicujus sic accipere, quod tradat illam ei a quo ipsam recepit tenendam: si quis autem de caetero terram suam domui religiosae sic dederit, et super hoc convincatur, donum suum penitus cassetur, et terra illa domino suo illius feodi incurratur. Mag. Cart. 9 Hen. III. c. 36.
↑ 2 Inst. 75.
↑ cap. 33.
↑ 2 Inst. 501.
↑ cap. 3.
↑ 2 Hawk. P. C. 391.
↑ Stat. 1 W. & M. st. 2. c. 2.
↑ Co. Litt. 99.
↑ Stat. 2 & 3 Ann. c. 11.
↑ 1 Rep. 24.
↑ See pag. 249, 250.
↑ Book I. ch. 10.
↑ Co. Litt. 251.
↑ Litt. §. 415.
↑ See book III.
↑ Litt. §. 595, 6, 7.
↑ Co. Litt. 233.
↑ Finch. 270, 271.
↑ Co. Litt. 252.
↑ Ibid. 253.
↑ 2 Roll. Abr. 336. pl. 10.
↑ Bracton. l. 4. tr. 2. c. 3.
↑ See pag. 23.
↑ Bro. Abr. tit. Quar. Imped. 131. Cro. Jac. 518.
↑ Stat. 1 Geo. I. st. 2. c. 10.
↑ Stat. 17 Edw. II. c. 8. 2 Inst. 273.
↑ 6 Rep. 62. Registr. 42.
↑ 2 Inst. 361.
↑ Gibs. Cod. 769.
↑ 2 Inst. 273.
↑ 2 Roll. Abr. 368.
↑ Dr & St. d. 2. c. 36. Cro. Car. 355.
↑ 7 Rep. 28. Cro. Eliz. 44.
↑ 4 Rep. 75. 2 Inst. 632.
↑ Co. Litt. 344, 345.
↑ 2 Roll. Abr. 369.
↑ Co. Litt. 344.
↑ 3 Inst. 156.
↑ Moor. 564.
↑ For other penalties inflicted by this statute, see book IV.
↑ Cro. Eliz. 788. Moor. 914.
↑ Hob. 165.
↑ Cro. Eliz. 686. Moor. 916.
↑ 3 Inst. 154. Cro. Jac. 385.
↑ Noy. 142.
↑ Stra. 534.
↑ Cro. Car. 180.
↑ Cro. Jac. 248. 274.
↑ Cro. Car. 180. Stra. 227.
↑ 1 Vern. 411. 1 Equ. Cas. abr. 86, 87. Stra. 534.
↑ See chap. 10. pag. 152.
↑ Co. Litt. 53.
↑ Hetl. 35.
↑ 4 Rep. 64.
↑ Co. Litt. 53.
↑ 4 Rep. 62.
↑ Co. Litt. 53.
↑ 2 Roll. Abr. 817.
↑ Co. Litt. 41.
↑ Hob. 296.
↑ 1 Inst. 53.
↑ 1 Lev. 309.
↑ 5 Rep. 12.
↑ Hob. 295.
↑ Wright. 44.
↑ It was however a doubt whether waste was punishable at the common law in tenant by the curtesy. Regist. 72. Bro. Abr. tit. waste. 88. 2 Inst. 301.
↑ 2 Inst. 299.
↑ 52 Hen. III. c. 23
↑ 6 Edw. I. c. 5.
↑ 2 Inst. 146.
↑ Ibid. 300.
↑ 9 Hen. III. c. 4.
↑ 2 Inst. 303.
↑ Co. Litt. 54.
↑ 2 Inst. 304.
↑ 2 Ventr. 38. Cro. Eliz. 499.
↑ Feud. l. 2. t. 26. in cale.
↑ 3 Leon. 108. Dyer. 211.
↑ Feud. l. 1. t. 21.
↑ Co. Copyh. §. 57.
↑ Feud. l. 2. t. 34. & t. 26. §. 3.
↑ Plowd. 372.
↑ Feud. l. 2. t. 24.
↑ 8 Rep. 99. Co. Copyh. §. 57.
↑ Feud. l. 2. t. 22.
↑ Co. Copyh. §. 57.
↑ Feud. l. 2. t. 58.
↑ Co. Copyh. §. 58.
↑ Feud. l. 1. t. 21
↑ Ibid. t. 22.
↑ i. e. arbitranda, definienda. Du Fresne. IV. 79.
↑ 1 Jac. I. c. 15.
Chapter the nineteenth.
Of TITLE by ALIENATION.
THE most usual and universal method of acquiring a title to real estates is that of alienation, conveyance, or purchase in it’s limited sense: under which may be comprized any method wherein estates are voluntarily resigned by one man, and accepted by another; whether that be effected by sale, gift, marriage settlement, devise, or other transmission of property by the mutual consent of the parties.
This means of taking estates, by alienation, is not of equal antiquity in the law of England with that of taking them by descent. For we may remember that, by the feodal law[1], a pure and genuine feud could not be transferred from one feudatory to another without the consent of the lord; left thereby a feeble or suspicious tenant might have been substituted and imposed upon him, to perform the feodal services, instead of one on whose abilities and fidelity he could depend. Neither could the feudatory then subject the land to his debts; for, if he might, the feodal restraint of alienation would have been easily frustrated and evaded[2]. And, as he could not aliene it in his lifetime, so neither could he by will defeat the succession, by devising his feud to another family; nor even alter the course of it, by imposing particular limitations, or prescribing an unusual path of descent. Nor, in short, could he aliene the estate, even with the consent of the lord, unless he had also obtained the consent of his own next apparent, or presumptive, heir[3]. And therefore it was very usual in antient feoffments to express, that the alienation was made by consent of the heirs of the feoffer; or sometimes for the heir apparent himself to join with the feoffor in the grant[4]. And, on the other hand, as the feodal obligation was looked upon to be reciprocal, the lord could not aliene or transfer his signiory without the consent of his vasal: for it was esteemed unreasonable to subject a feudatory to a new superior, with whom he might have a deadly enmity, without his own approbation; or even to transfer his fealty, without his being thoroughly apprized of it, that he might know with certainty to whom his renders and services were due, and be able to distinguish a lawful distress for rent from a hostile seising of his cattle by the lord of a neighbouring clan[5]. This consent of the vasal was expressed by what was called attorning[6], or professing to become the tenant of the new lord; which doctrine of attornment was afterwards extended to all lessees for life or years. For if one bought an estate with any lease for life or years standing out thereon, and the lessee or tenant refused to attorn to the purchasor, and to become his tenant, the grant or contract was in most cases void, or at least incomplete[7]: which was also an additional clog upon alienations.
But by degrees this feodal severity is worn off; and experience hath shewn, that property best answers the purposes of civil life, especially in commercial countries, when it’s transfer and circulation are totally free and unrestrained. The road was cleared in the first place by a law of king Henry the first, which allowed a man to sell and dispose of lands which he himself had purchased; for over these he was thought to have a more extensive power, than over what had been transmitted to him in a course of descent from his ancestors[8]: a doctrine, which is countenanced by the feodal constitutions themselves[9]: but he was not allowed to sell the whole of his own acquirements, so as totally to disinherit his children, any more than he was at liberty to aliene his paternal estate[10]. Afterwards a man seems to have been at liberty to part with all his own acquisitions, if he had previously purchased to him and his assigns by name; but, if his assigns were not specified in the purchase deed, he was not empowered to aliene[11]: and also he might part with one fourth of the inheritance of his ancestors without the consent of his heir[12]. By the great charter of Henry III[13], no subinfeudation was permitted of part of the land, unless sufficient was left to answer the services due to the superior lord, which sufficiency was probably interpreted to be one half or moiety of the land[14]. But these restrictions were in general removed by the statute of quia emptores[15], whereby all persons, except the king’s tenants in capite, were left at liberty to aliene all or any part of their lands at their own discretion[16]. And even these tenants in capite were by the statute I Edw. III. c. 12. permitted to aliene, on paying a fine to the king[17]. By the temporary statutes 11 Hen. VII. c. 3. and 3 Hen. VIII. c. 4. all persons attending the king in his wars were allowed to aliene their lands without licence, and were relieved from other feodal burdens. And, lastly, these very fines for alienations were, in all cases of freehold tenure, entirely abolished by the statute 12 Car. II. c. 24. As to the power of charging lands with the debts of the owner, this was introduced so early as statute Westm. 2. which[18] subjected a moiety of the tenant’s lands to executions, for debts recovered by law; as the whole of them was likewise subjected to be pawned in a statute merchant by the statute de mercatoribus, made the same year, and in a statute staple by statute 27 Edw. III. c. 9. and in other similar recognizances by statute 23 Hen. VIII. c. 6. And, now, the whole of them is not only subject to be pawned for the debts of the owner, but likewise to be absolutely sold for the benefit of trade and commerce by the several statutes of bankruptcy. The restraint of devising lands by will, except in some places by particular custom, lasted longer; that not being totally removed, till the abolition of the military tenures. The doctrine of attornments continued still later than any of the rest, and became extremely troublesome, though many methods were invented to evade them; till, at last, they were made no longer necessary, by statutes 4 & 5 Ann. c. 16. and 11 Geo. II. c. 19.
In examining the nature of alienation, let us first enquire, briefly, who may aliene and to whom; and then, more largely, how a man may aliene, or the several modes of conveyance.
I. Who may aliene, and to whom; or, in other words, who is capable of conveying and who of purchasing. And herein we must consider rather the incapacity, than capacity, of the several parties: for all persons in possession are, prima facie, capable both of conveying and purchasing, unless the law has laid them under any particular disabilities. But, if a man has only in him the right of either possession or property, he cannot convey it to any other, left pretended titles might be granted to great men, whereby justice might be trodden down, and the weak oppressed[19]. Yet reversions and vested remainders may be granted; because the possession of the particular tenant is the possession of him in reversion or remainder: but contingencies, and mere possibilities, though they may be released, or devised by will, or may pass to the heir or executor, yet cannot (it hath been said) be assigned to a stranger, unless coupled with some present interest[20].
Persons attainted of treason, felony, and praemunire, are incapable of conveying, from the time of the offence committed, provided attainder follows[21]: for such conveyance by them may tend to defeat the king of his forfeiture, or the lord of his escheat. But they may purchase for the benefit of the crown, or the lord of the fee, though they are disabled to hold: the lands so purchased, if after attainder, being subject to immediate forfeiture; if before, to escheat as well as forfeiture, according to the nature of the crime[22]. So also corporations, religious or others, may purchase lands; yet, unless they have a licence to hold in mortmain, they cannot retain such purchase; but it shall be forfeited to the lord of the fee.
Idiots and persons of nonsane memory, infants, and persons under duress, are not totally disabled either to convey or purchase, but sub modo only. For their conveyances and purchases are voidable, but not actually void. The king indeed, on behalf of an idiot, may avoid his grants or other acts[23]. But it hath been said, that a non compos himself, though he be afterwards brought to a right mind, shall not be permitted to allege his own infanity in order to avoid such grant: for that no man shall be allowed to stultify himself, or plead his own disability. The progress of this notion is somewhat curious. In the time of Edward I, non compos was a sufficient plea to avoid a man’s own bond[24]: and there is a writ in the register[25] for the alienor himself to recover lands aliened by him during his infanity; dum fuit non compos mentis suae, ut dicit, &c. But under Edward III a scruple began to arise, whether a man should be permitted to blemish himself, by pleading his own infanity[26]: and, afterwards, a defendant in assise having pleaded a release by the plaintiff since the last continuance, to which the plaintiff replied (ore tenus, as the manner then was) that he was out of his mind when he gave it, the court adjourned the assise; doubting, whether as the plaintiff was sane both then and at the commencement of the suit, he should be permitted to plead an intermediate deprivation of reason; and the question was asked, how he came to remember the release, if out of his senses when he gave it[27]. Under Henry VI this way of reasoning (that a man shall not be allowed to disable himself, by pleading his own incapacity, because he cannot know what he did under such a situation) was seriously adopted by the judges in argument[28]; upon a question, whether the heir was barred of his right of entry by the feoffment of his insane ancestor. And from these loose authorities, which Fitzherbert does not scruple to reject as being contrary to reason[29], the maxim that a man shall not stultify himself hath been handed down as settled law[30]: though later opinions, feeling the inconvenience of the rule, have in many points endeavoured to restrain it[31]. And, clearly, the next heir, or other person interested, may, after the death of the idiot or non compos, take advantage of his incapacity and avoid the grant[32]. And so too, if he purchases under this disability, and does not afterwards upon recovering his senses agree to the purchase, his heir may either waive or accept the estate at his option[33]. In like manner, an infant may waive such purchase or conveyance, when he comes to full age; or, if he does not then actually agree to it, his heirs may waive it after him[34]. Persons also, who purchase or convey under duress, may affirm or avoid such transaction, whenever the duress is ceased[35]. For all these are under the protection of the law; which will not suffer them to be imposed upon, through the imbecillity of their present condition; so that their acts are only binding, in case they be afterwards, agreed to, when such imbecillity ceases.
The case of a feme-covert is somewhat different. She may purchase an estate without the consent of her husband, and the conveyance is good during the coverture, till he avoids it by some act declaring his dissent[36]. And, though he does nothing to avoid it, or even if he actually consents, the feme-covert herself may, after the death of her husband, waive or disagree to the same: nay, even her heirs may waive it after her, if she dies before her husband, or if in her widowhood she does nothing to express her consent or agreement[37]. But the conveyance or other contract of a feme-covert (except by some matter of record) is absolutely void, and not merely voidable[38]; and therefore cannot be affirmed or made good by any subsequent agreement.
The case of an alien born is also peculiar. For he may purchase any thing; but after purchase he can hold nothing, except a lease for years of a house for convenience of merchandize, in case he be an alien-friend: all other purchases (when found by an inquest of office) being immediately forfeited to the king[39].
Papists, lastly, and persons professing the popish religion, are by statute 11 & 12 W. III. c.4. disabled to purchase any lands, rents, or hereditaments; and all estates made to their use, or in trust for them, are void. But this statute is construed to extend only to papists above the age of eighteen; such only being absolutely disabled to purchase: yet the next protestant heir of a papist under eighteen shall have the profits, during his life; unless he renounces his errors within the time limited by law[40].
II. We are next, but principally, to enquire, how a man may aliene or convey; which will lead us to consider the several modes of conveyance.
In consequence of the admission of property, or the giving a separate right by the law of society to those things which by the law of nature were in common, there was necessarily some means to be devised, whereby that separate right or exclusive property should be originally acquired; which, we have more than once observed, was that of occupancy or first possession. But this possession, when once gained, was also necessarily to be continued; or else, upon one man’s dereliction of the thing he had seised, it would again become common, and all those mischiefs and contentions would ensue, which property was introduced to prevent. For this purpose therefore, of continuing the possession, the municipal law has established descents and alienations: the former to continue the possession in the heirs of the proprietor, after his involuntary dereliction of it by his death; the latter to continue it in those persons, to whom the proprietor, by his own voluntary act, shall choose to relinquish it in his life-time. A translation, or transfer, of property being thus admitted by law, it became necessary that this transfer should be properly evidenced: in order to prevent disputes, either about the fact, as whether there was any transfer at all; or concerning the persons, by whom and to whom it was transferred; or with regard to the subjectmatter, as what the thing transferred consisted of; or, lastly, with relation to the mode and quality of the transfer, as for what period of time (or, in other words, for what estate and interest) the conveyance was made. The legal evidences of this translation of property are called the common assurances of the kingdom; whereby every man’s estate is assured to him, and all controversies, doubts, and difficulties are either prevented or removed.
These common assurances are of four kinds: 1. By matter in pais, or deed; which is an assurance transacted between two or more private persons in pais, in the country; that is (according to the old common law) upon the very spot to be transferred. 2. By matter of record, or an assurance transacted only in the king’s public courts of record. 3. By special custom, obtaining in some particular places, and relating only to some particular species of property. Which three are such as take effect during the life of the party conveying or assuring. 4. The fourth takes no effect, till after his death; and that is by devise, contained in his last will and testament. We shall treat of each in it’s order.
↑ See pag. 57.
↑ Feud. l. 1. t. 27.
↑ Co. Litt. 94. Wright. 168.
↑ Madox, Formul. Angl. n°. 316. 319. 427.
↑ Gilb. Ten. 75.
↑ The same doctrine and the same denomination prevailed in Bretagne. — possessiones in jurisdictionalibus non aliter apprehendi posse, quam per attournances et avirances, ut loqui solent; cum vasallus, ejurato prioris domini obsequio et fide, novo se sacramento novo item domino acquirenti obstringebat; idque jussu auctoris. D’Argentre Antiq. Consuet. Brit. apud Dufresne. i. 819, 820.
↑ Litt. §. 551.
↑ Emptiones vel acquisitiones suas dei cui magis velit. Terram autem quam ei parentes dederunt, non mittat extra cognationem suam. LL. Hen. I. c. 70.
↑ Feud. l. 2. t. 39.
↑ Si questum tantum habuerit is, qui partem terrae suae donare voluerit, tunc quidem hoc ei licet; sed non totum questum, quia non potest filium suum haeredem exhaeredare. Glanv. l. 7. c. 1.
↑ Mirr. c. 1. §. 3. This is also borrowed from the feodal law. Feud. l. 2. t. 48.
↑ Mirr. ibid.
↑ 9 Hen. 3. c. 32.
↑ Dalrymple of feuds. 95.
↑ 18 Edw. I. c. 1.
↑ See pag. 72.
↑ 2 Inst. 67.
↑ 13 Edw. I. c. 18.
↑ Co. Litt. 214.
↑ Sheppard’s touchstone. 238, 239. 322. 11 Mod. 152. 1 P.Wms. 574. Stra. 132.
↑ Co. Litt. 42.
↑ Ibid. 2.
↑ Ibid. 247.
↑ Britton, c. 28. fol. 66.
↑ fol. 228.
↑ 5 Edw. III. 70.
↑ 35 Assis. pl. 10.
↑ 39 Hen. VI. 42.
↑ F. N. B. 202.
↑ Litt. §. 405. Cro. Eliz. 398. 4 Rep. 123.
↑ Comb. 469. 3 Mod. 310, 311. 1 Equ. cas. abr. 279.
↑ Perkins. §. 21.
↑ Co. Litt. 2.
↑ Ibid.
↑ 2 Inst. 483. 5 Rep. 119.
↑ Co. Litt. 3.
↑ Ibid.
↑ Perkins. §. 154. 1 Sid. 120.
↑ Co. Litt. 2.
↑ 1 P. Wms. 354.
Chapter the twentieth.
Of ALIENATION by DEED.
IN treating of deeds I shall consider, first, their general nature; and, next, the several sorts or kinds of deeds, with their respective incidents. And in explaining the former, I shall examine, first, what a deed is; secondly, it’s requisites; and, thirdly, how it may be avoided.
I. First then, a deed is a writing sealed and delivered by the parties[1]. It is sometimes called a charter, carta, from it’s materials; but most usually, when applied to the transactions of private subjects, it is called a deed, in Latin factum, κατ’ εξοχην, because it is the most solemn and authentic act that a man can possibly perform, with relation to the disposal of his property; and therefore a man shall always be estopped by his own deed, or not permitted to aver or prove any thing in contradiction to what he has once so solemnly and deliberately avowed[2]. If a deed be made by more parties than one, there ought to be regularly as many copies of it as there are parties, and each should be cut or indented (formerly in acute angles instar dentium, but at present in a waving line) on the top or side, to tally or correspond with the other; which deed, so made, is called an indenture. Formerly, when deeds were more concise than at present, it was usual to write both parts on the same piece of parchment, with some word or letters of the alphabet written between them; through which the parchment was cut, either in a strait or indented line, in such a manner as to leave half the word on one part and half on the other. Deeds thus made were denominated syngrapha by the canonists[3]; and with us chirographa, or hand-writings[4]; the word cirographum or cyrographum being usually that which was divided in making the indenture: and this custom is still preserved in making out the indentures of a fine, whereof hereafter. But at length indenting only has come into use, without cutting through any letters at all; and it seems at present to serve for little other purpose, than to give name to the species of the deed. When the several parts of an indenture are interchangeably executed by the several parties, that part or copy which is executed by the grantor is usually called the original, and the rest are counterparts: though of late it is most frequent for all the parties to execute every part; which renders them all originals. A deed made by one party only is not indented, but polled or shaved quite even; and is therefore called a deed-poll, or a single deed[5].
II. We are in the next place to consider the requisites of a deed. The first of which is, that there be persons able to contract and be contracted with, for the purposes intended by the deed; and also a thing, or subject matter to be contracted for; all which must be expressed by sufficient names[6]. So as in every grant there must be a grantor, a grantee, and a thing granted; in every lease a lessor, a lessee, and a thing demised.
Secondly; the deed must be founded upon good and sufficient consideration. Not upon an usurious contract[7]; nor upon fraud or collusion, either to deceive purchasors bona fide[8], or just and lawful creditors[9]; any of which bad considerations will vacate the deed. A deed also, or other grant, made without any consideration, is, as it were, of no effect; for it is construed to enure, or to be effectual, only to the use of the grantor himself[10]. The consideration may be either a good, or a valuable one. A good consideration is such as that of blood, or of natural love and affection, when a man grants an estate to a near relation; being founded in motives of generosity, prudence, and natural duty: a valuable consideration is such as money, marriage, or the like, which the law esteems an equivalent given for the grant[11]; and is therefore founded in motives of justice. Deeds, made upon good consideration only, are considered as merely voluntary, and are frequently set aside in favour of creditors, and bona fide purchasors.
Thirdly; the deed must be written, or I presume printed; for it may be in any character or any language; but it must be upon paper, or parchment. For if it be written on stone, board, linen, leather, or the like, it is no deed[12]. Wood or stone may be more durable, and linen less liable to rasures; but writing on paper or parchment unites in itself, more perfectly than any other way, both those desirable qualities: for there is nothing else so durable, and at the same time so little liable to alteration; nothing so secure from alteration, that is at the same time so durable. It must also have the regular stamps, imposed on it by the several statutes for the increase of the public revenue; else it cannot be given in evidence. Formerly many conveyances were made by parol, or word of mouth only, without writing; but this giving a handle to a variety of frauds, the statute 29 Car. II. c. 3. enacts, that no lease or estate in lands, tenements, or hereditaments, (except leases, not exceeding three years from the making, and whereon the reserved rent is at least two thirds of the real value) shall be looked upon as of greater force than a lease or estate at will; unless put in writing, and signed by the party granting, or his agent lawfully authorized in writing.
Fourthly; the matter written must be legally and orderly set forth: that is, there must be words sufficient to specify the agreement and bind the parties: which sufficiency must be left to the courts of law to determine[13]. For it is not absolutely necessary in law, to have all the formal parts that are usually drawn out in deeds, so as there be sufficient words to declare clearly and legally the party’s meaning. But, as these formal and orderly parts are calculated to convey that meaning in the clearest, distinctest, and most effectual manner, and have been well considered and settled by the wisdom of successive ages, it is prudent not to depart from them without good reason or urgent necessity; and therefore I will here mention them in their usual[14] order.
- The premises may be used to set forth the number and names of the parties, with their additions or titles. They also contain the recital, if any, of such deeds, agreements, or matters of fact, as are necesssary to explain the reasons upon which the present transaction is founded: and herein also is set down the consideration upon which the deed is made. And then follows the certainty of the grantor, grantee, and thing granted[15].
2, 3. Next come the habendum and tenendum[16]. The office of the habendum is properly to determine what estate or interest is granted by the deed: though this may be performed, and sometimes is performed, in the premises. In which case the habendum may lessen, enlarge, explain, or qualify, but not totally contradict or be repugnant to, the estate granted in the premises. As if a grant be “to A and the heirs of his body,” in the premises, habendum “to him and his heirs for ever,” or vice versa, here A has an estate-tail, and a fee-simple expectant thereon[17]. But, had it been in the premises “to him and his heirs,” habendum “to him for life,” the habendum would be utterly void[18]; for an estate of inheritance is vested in him before the habendum comes, and shall not afterwards be taken away, or devested, by it. The tenendum, “and to hold,” is now of very little use, and is only kept in by custom. It was sometimes formerly used to signify the tenure, by which the estate granted was to be holden; viz. “tenendum per servitium militare, in burgagio, in libero socagio, &c.” But, all these being now reduced to free and common socage, the tenure is never specified. Before the statute of quia emptores, 18 Edw. I. it was also sometimes used to denote the lord of whom the land should be holden; but that statute directing all future purchasers to hold, not of the immediate grantor, but of the chief lord of the fee, this use of the tenendum hath been also antiquated; though for a long time after we find it mentioned in antient charters, that the tenements shall be holden de capitalibus dominis feodi[19]: but, as this expressed nothing more than the statute had already provided for, it gradually grew out of use.
-
Next follow the terms or stipulations, if any, upon which the grant is made: the first of which is the reddendum or reservation, whereby the grantor doth create or reserve some new thing to himself out of what he had before granted. As “rendering thereby yearly the sum of ten shillings, or a pepper corn, or two days ploughing, or the like[20].” This render, reditus, return, or rent, under the pure feodal system consisted, in chivalry, principally of military services; in villenage, of the most slavish offices; and, in socage, it usually consists of money, though it may consist of services still, or of any other certain profit[21]. To make a reddendum good, if it be of any thing newly created by the deed, the reservation must be to the grantors, or some, or one of them, and not to any stranger to the deed[22]. But if it be of antient services or the like, annexed to the land, then the reservation may be to the lord of the fee[23].
-
Another of the terms upon which a grant may be made is a condition; which is a clause of contingency, on the happening of which the estate granted may be defeated; as “provided always, that if the mortgagor shall pay the mortgagee 500𝑙. upon such a day, the whole estate granted shall determine;” and the like[24].
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Next may follow the clause of warranty; whereby the grantor doth, for himself and his heirs, warrant and secure to the grantee the estate so granted[25]. By the feodal constitution, if the vasal’s title to enjoy the feud was disputed, he might vouch, or call, the lord or donor to warrant or insure his gift; which if he failed to do, and the vasal was evicted, the lord was bound to give him another feud of equal value in recompense[26]. And so, by our antient law, if before the statute of quia emptores a man enfeoffed another in fee, by the feodal verb dedi, to hold of himself and his heirs by certain services; the law annexed a warranty to this grant, which bound the feoffor and his heirs, to whom the services (which were the consideration and equivalent for the gift) were originally stipulated to be rendered[27]. Or if a man and his ancestors had immemorially holden land of another and his ancestors by the service of homage (which was called homage auncestrel) this also bound the lord to warranty[28]; the homage being an evidence of such a feodal grant. And, upon a similar principle, in case, after a partition or exchange of haids of inheritance, either party or his heirs be evicted of his share, the other and his heirs are bound to warranty[29], because they enjoy the equivalent. And so, even at this day, upon a gift in tail or lease for life, rendering rent, the donor or lessor and his heirs (to whom the rent is payable) are bound to warrant the title[30]. But in a feoffment in fee by the verb dedi, since the statute of quia emptores, the feoffor only is bound to the implied warranty, and not his heirs[31]; because it is a mere personal contract on the part of the feoffor, the tenure (and of course the antient services) resulting back to the superior lord of the fee. And in other forms of alienation, gradually introduced since that statute, no warranty whatsoever is implied[32]; they bearing no sort of analogy to the original feodal donation. And therefore in such cases it became necessary to add an express clause of warranty, to bind the grantor and his heirs; which is a kind of covenant real, and can only be created by the verb warrantizo or warrant[33].
These express warranties were introduced, even prior to the statute of quia emptores, in order to evade the strictness of the feodal doctrine of non-alienation without the consent of the heir. For, though he, at the death of his ancestor, might have entered on any tenements that were aliened without his concurrence, yet, if a clause of warranty was added to the ancestor’s grant, this covenant descending upon the heir insured the grantee; not so much by confirming his title, as by obliging such heir to yield him a recompense in lands of equal value: the law, in favour of alienations, supposing that no ancestor would want only disinherit his next of blood[34]; and therefore presuming that he had received a valuable consideration, either in land, or in money which had purchased land, and that this equivalent descended to the heir together with the ancestor’s warranty. So that when either an ancestor, being the rightful tenant of the freehold, conveyed the land to a stranger and his heirs, or released the right in fee-simple to one who was already in possession, and superadded a warranty to his deed, it was held that such warranty not only bound the warrantor himself to protect and assure the title of the warrantee, but it also bound his heir: and this, whether that warranty was lineal, or collateral to the title of the land. Lineal warranty was where the heir derived, or might by possibility have derived, his title to the land warranted, either from or through the ancestor who made the warranty; as, where a father, or an elder son in the life of the father, released to the disseisor of either themselves or the grandfather, with warranty, this was lineal, to the younger son[35]. Collateral warranty was where the heir’s title to the land neither was, nor could have been, derived from the warranting ancestor; as, where a younger brother released to his father’s disseisor, with warranty, this was collateral to the elder brother[36]. But where the very conveyance, to which the warranty was annexed, immediately followed a disseisin, or operated itself as such (as, where a father tenant for years, with remainder to his son in fee, aliened in fee-simple with warranty) this, being in it’s original manifestly founded on the tort or wrong of the warrantor himself, was called a warranty commencing by disseisin; and, being too palpably injurious to be supported, was not binding upon any heir of such tortious warrantor[37].
In both lineal and collateral warranty, the obligation of the heir (in case the warrantee was evicted, to yield him other lands in their stead) was only on condition that he had other sufficient lands by descent from the warranting ancestor[38]. But though, without assets, he was not bound to insure the title of another, yet, in case of lineal warranty, whether assets descended or not, the heir was perpetually barred from claiming the land himself; for, if he could succeed in such claim, he would then gain assets by descent (if he had them not before) and must fulfil the warranty of his ancestor: and the same rule[39] was with less justice adopted also in respect of collateral warranties, which likewise (though no assets descended) barred the heir of the warrantor from claiming the land by any collateral title; upon the presumption of law that he might hereafter have assets by descent either from or through the same ancestor. The inconvenience of this latter branch of the rule was felt very early, when tenants by the curtesy took upon them to aliene their lands with warranty; which collateral warranty of the father descending upon his son (who was the heir of both his parents) barred him from claiming his maternal inheritance: to remedy which the statute of Glocester, 6 Edw. I. c. 3. declared, that such warranty should be no bar to the son, unless assets descended from the father. It was afterwards attempted in 50 Edw. III. to make the same provision universal, by enacting that no collateral warranty should be a bar, unless where assets descended from the same ancestor[40]; but it then proceeded not to effect. However, by the statute 11 Hen. VII. c. 20. notwithstanding any alienation with warranty by tenant in dower, the heir of the husband is not barred, though he be also heir to the wife. And by statute 4 & 5 Ann. c. 16. all warranties by any tenant for life shall be void against those in remainder or reversion; and all collateral warranties by any ancestor who has no estate of inheritance in possession shall be void against his heir. By the wording of which last statute it should seem, that the legislature meant to allow, that the collateral warranty of tenant in tail, descending (though without assets) upon a remainder-man or reversioner, should still bar the remainder or reversion. For though the judges, in expounding the statute de donis, held that, by analogy to the statute of Glocester, a lineal warranty by the tenant in tail without assets should not bar the issue in tail, yet they held such warranty with assets to be a sufficient bar[41]: which was therefore formerly mentioned[42] as one of the ways whereby an estate-tail might be destroyed; it being indeed nothing more in effect, than exchanging the lands entailed for others of equal value. They also held that collateral warranty was not within the statute de donis; as that act was principally intended to prevent the tenant in tail from disinheriting his own issue: and therefore collateral warranty (though without assets) was allowed to be, as at common law, a sufficient bar of the estate tail and all remainders and reversions expectant thereon[43]. And so it still continues to be, notwithstanding the statute of queen Anne, if made by tenant in tail in possession: who therefore may now, without the forms of a fine or recovery, in some cases make a good conveyance in fee-simple, by superadding a warranty to his grant; which, if accompanied with assets, bars his own issue, and without them bars such of his heirs as may be in remainder or reversion.
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After warranty usually follow covenants, or conventions; which are clauses of agreement contained in a deed, whereby either party may stipulate for the truth of certain facts, or may bind himself to perform, or give, something to the other. Thus the grantor may covenant that he hath a right to convey; or for the grantee’s quiet enjoyment; or the like: the grantee may covenant to pay his rent, to repair the premises, &c.[44]. If the covenantor covenants for himself and his heirs, it is then a covenant real, and descends upon the heirs; who are bound to perform it, provided they have assets by descent, but not otherwise: if he covenants also for his executors and administrators, his personal assets, as well as his real, are likewise pledged for the performance of the covenant; which makes such covenant a better security than any warranty, and it has therefore in modern practice totally superseded the other.
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Lastly, comes the conclusion, which mentions the execution and date of the deed, or the time of it’s being given or executed, either expressly, or by reference to some day and year before-mentioned[45]. Not but a deed is good, although it mention no date; or hath a false date; or even if it hath an impossible date, as the thirtieth of February; provided the real day of it’s being dated or given, that is, delivered, can be proved[46].
I proceed now to fifth requisite for making a good deed; the reading of it. This is necessary, wherever any of the parties desire it; and, if it be not done on his request, the deed is void as to him. If he can, he should read it himself: if he be blind or illiterate, another must read it to him. If it be read falsely, it will be void; at least for so much as is misrecited: unless it be agreed by collusion that the deed shall be read false, on purpose to make it void; for in such case it shall bind the fraudulent party[47].
Sixthly, it is requisite that the party, whose deed it is, should seal, and in most cases I apprehend shouldy sign it also. The use of seals, as a mark of authenticity to letters and other instruments in writing, is extremely antient. We read of it among the Jews and Persians in the earliest and most sacred records of history[48]. And in the book of Jeremiah there is a very remarkable instance, not only of an attestation by seal, but also of the other usual formalities attending a Jewish purchase[49]. In the civil law also[50], seals were the evidence of truth; and were required, on the part of the witnesses at least, at the attestation of every testament. But in the times of our Saxon ancestors, they were not much in use here. For though sir Edward Coke[51] relies on an instance of king Edwyn’s making use of a seal about an hundred years before the conquest, yet it does not follow that this was the usage among the whole nation: and perhaps the charter he mentions may be of doubtful authority, from this very circumstance, of being sealed; since we are assured by all our antient historians, that sealing was not then in common use. The method of the Saxons was for such as could write to subscribe their names, and, whether they could write or not, to affix the sign of the cross: which custom our illiterate vulgar do, for the most part, to this day keep up; by signing a cross for their mark, when unable to write their names. And indeed this inability to write, and therefore making a cross in it’s stead, is honestly avowed by Caedwalla, a Saxon king, at the end of one of his charters[52]. In like manner, and for the same unsurmountable reason, the Normans, a brave but illiterate nation, at their first settlement in France, used the practice of sealing only, without writing their names: which custom continued, when learning made it’s way among them, though the reason for doing it had ceased; and hence the charter of Edward the confesssor to Westminster abbey, himself being brought up in Normandy, was witnessed only by his seal, and is generally thought to be the oldest sealed charter of any authenticity in England[53]. At the conquest, the Norman lords brought over into this kingdom their own fashions; and introduced waxen seals only, instead of the English method of writing their names, and signing with the sign of the cross[54]. The impressions of these seals were sometimes a knight on horseback, sometimes other devises: but coats of arms were not introduced into seals, nor indeed into any other use, till about the reign of Richard the first, who brought them from the croisade in the holy land; where they were first invented and painted on the shields of the knights, to distinguish the variety of persons of every christian nation who resorted thither, and who could not, when clad in complete steel, be otherwise known or ascertained.
This neglect of signing, and resting only upon the authenticity of seals, remained very long among us; for it was held in all our books that sealing alone was sufficient to authenticate a deed: and so the common form of attesting deeds, — “sealed and delivered,” continues to this day; notwithstanding the statute 29 Car. II. c. 3. before-mentioned revives the Saxon custom, and expressly directs the signing, in all grants of lands, and many other species of deeds, in which therefore signing seems to be now as necessary as sealing, though it hath been sometimes held, that the one includes the other[55].
A seventh requisite to a good deed is that it be delivered, by the party himself or his certain attorney: which therefore is also expressed in the attestation; “sealed and delivered.” A deed takes effect only from this tradition or delivery; for, if the date be false or impossible, the delivery ascertains the time of it. And if another person seals the deed, yet if the party delivers it himself, he thereby adopts the sealing[56], and by a parity of reason the signing also, and makes them both his own. A delivery may be either absolute, that is, to the party or grantee himself; or to a third person, to hold till some conditions be performed on the part of the grantee: in which last case it is not delivered as a deed, but as an escrow; that is, a scrowl or writing, which is not to take effect as a deed till the conditions be performed; and then it is a deed to all intents and purposes[57].
The last requisite to the validity of a deed is the attestation, or execution of it in the presence of witnesses: though this is necessary, rather for preserving the evidence, than for constituting the essence, of the deed. Our modern deeds are in reality nothing more than an improvement or amplification of the brevia testata mentioned by the feodal writers[58]; which were written memorandums, introduced to perpetuate the tenor of the conveyance and investiture, when grants by parol only became the foundation of frequent dispute and uncertainty. To this end they registered in the deed the persons who attended as witnesses, which was formerly done without their signing their names, (that not being always in their power) but they only heard the deed read; and then the clerk or scribe added their names, in a sort of memorandum; thus; “hijs testibus, Johanne Moore, Jacobo Smith, et aliis ad hanc rem convocatis[59].” This, like all other solemn transactions, was originally done only coram paribus[60], and frequently when assembled in the court baron, hundred, or county court; which was then expressed in the attestation, teste comitatu, hundredo, &c[61]. Afterwards the attestation of other witnesses was allowed, the trial in case of a dispute being still reserved to the pares; with whom the witnesses (if more than one) were associated, and joined in the verdict[62]: till that also was abrogated by the statute of York, 12 Edw. II. st. 1. c. 2. And in this manner, with some such clause of hijs testibus, are all old deeds and charters, particularly magna carta, witnessed. And, in the time of sir Edward Coke, creations of nobility were still witnessed in the same manner[63]. But in the king’s common charters, writs, or letters patent, the stile is now altered: for, at present, the king is his own witness, and attests his letters patent thus; “teste meipso, witness ourself at Westminfter, &c:” a form which was introduced by Richard the first[64], but not commonly used till about the beginning of the fifteenth century; nor the clause of hijs testibus intirely discontinued till the reign of Henry the eighth[65]: which was also the aera of discontinuing it in the deeds of subjects, learning being then revived, and the faculty of writing more general: and therefore ever since that time the witnesses have subscribed their attestation, either at the bottom, or on the back, of the deed[66].
III. We are next to consider, how a deed may be avoided, or rendered of no effect. And from what has been before laid down it will follow, that if a deed wants any of the essential requisites before-mentioned; either, 1. Proper parties, and a proper subject matter: 2. A good and sufficient consideration: 3. Writing, on paper or parchment, duly stamped: 4. Sufficient and legal words, properly disposed: 5. Reading, if desired, before the execution: 6. Sealing; and, by the statute, in many cases signing also: or, 7. Delivery : it is a void deed ab initio. It may also be avoided by matter ex post facto: as, 1. By rasure, interlining, or other alteration in any material part; unless a memorandum be made thereof at the time of the execution and attestation[67]. 2. By breaking off, or defacing, the seal[68]. 3. By delivering it up to be cancelled; that is to have lines drawn over it, in the form of lattice work or cancelli; though the phrase is now used figuratively for any manner of obliteration or defacing it. 4. By the disagreement of such, whose concurrence is necessary, in order for the deed to stand: as, the husband, where a feme covert is concerned; an infant, or person under duress, when those difficulties are removed; and the like. 6. By the judgment or decree of a court of judicature. This was antiently the province of the court of star-chamber, and now of the chancery: when it appears that the deed was obtained by fraud, force, or other foul practice; or is proved to be an absolute forgery[69]. In any of these cases the deed may be voided, either in part or totally, according as the cause of avoidance is more or less extensive.
And, having thus explained the general nature of deeds, we are next to consider their several species, together with their respective incidents. And herein I shall only examine the particulars of those, which, from long practice and experience of their efficacy, are generally used in the alienation of real estates: for it would be tedious, nay infinite, to descant upon all the several instruments made use of in personal concerns, but which fall under our general definition of a deed; that is, a writing sealed and delivered. The former, being principally such as serve to convey the property of lands and tenements from man to man, are commonly denominated conveyances: which are either conveyances at common law, or such as receive their force and efficacy by virtue of the statute of uses.
I. Of conveyances by the common law, some may be called original, or primary conveyances; which are those by means whereof the benefit or estate is created or first arises: others are derivative or secondary; whereby the benefit or estate, originally created, is enlarged, retrained, transferred, or extinguished.
Original conveyances are the following; 1. Feoffment; 2. Gift; 3. Grant; 4. Lease; 5. Exchange; 6. Partition: derivative are, 7. Release; 8. Confirmation; 9. Surrender; 10. Assignment; 11. Defeazance.
- A feoffment, feoffamentum, is a substantive derived from the verb, to enfeoff, feoffare or infeudare, to give one a feud; and therefore feoffment is properly donatio feudi[70]. It is the most antient method of conveyance, the most solemn and public, and therefore the most easily remembered and proved. And it may properly be defined, the gift of any corporeal hereditament to another. He that so gives, or enfeoffs, is called the feoffor; and the person enfeoffed is denominated the feoffee.
This is plainly derived from, or is indeed itself the very mode of the antient feodal donation; for though it may be performed by the word “enfeoff” or “grant,” yet the aptest word of feoffment is “do or dedi[71].” And it is still directed and governed by the same feodal rules; insomuch that the principal rule relating to the extent and effect of a feodal grant, “tenor est qui legem dat feudo,” is in other words become the maxim of our law with relation to feoffments, “modus legem dat donationis[72].” And therefore as in pure feodal donations the lord, from whom the feud moved, must expressly limit and declare the continuance or quantity of estate he meant to confer, “ne quis plus donasse praesumatur, quam in donatione expresserit[73];” so, if one grants by feoffment lands or tenements to another, and limits or expresses no estate, the grantee (due ceremonies of law being performed) hath barely an estate for life[74]. For, as the personal abilities of the feoffee were originally presumed to be the immediate or principal inducements to the feoffment, the feoffee’s estate ought to be confined to his person, and subsist only for his life; unless the feoffor, by express provision in the creation and constitution of the estate, hath given it a longer continuance. These express provisions are indeed generally made; for this was for ages the only conveyance, whereby our ancestors were wont to create an estate in fee-simple[75], by giving the land to the feoffee, to hold to him and his heirs for ever; though it serves equally well to convey any other estate of freehold[76].
But by the mere words of the deed the feoffment is by no means perfected. There remains a very material ceremony to be performed, called livery of seisin; without which the feoffee has but a mere estate at will[77]. This livery of seisin is no other than the pure feodal investiture, or delivery of corporal possession of the land or tenement; which was held absolutely necessary to complete the donation. “Nam feudum sine investitura nullo modo constitui potuit[78]:” and an estate was then only perfect, when, as Fleta expresses it in our law, “fit juris et seisinae conjunctio[79].”
Investitures, in their original rise, were probably intended to demonstrate in conquered countries the actual possession of the lord; and that he did not grant a bare litigious right, which the soldier was ill qualified to prosecute, but a peaceable and firm possession. And, at a time when writing was seldom practised, a mere oral gift, at a distance from the spot that was given, was not likely to be either long or accurately retained in the memory of by-standers, who were very little interested in the grant. Afterwards they were retained as a public and notorious act, that the country might take notice of and testify the transfer of the estate; and that such as claimed title by other means might know against whom to bring their actions.
In all well-governed nations, some notoriety of this kind has been ever held requisite, in order to acquire and ascertain the property of lands. In the Roman law plenum dominium was not said to subsist, unless where a man hath both the right, and the corporal possession; which possession could not be acquired without both an actual intention to possess, and an actual seisin, or entry into the premises, or part of them in the name of the whole[80]. And even in ecclesiastical promotions, where the freehold passes to the person promoted, corporal possession is required at this day, to vest the property completely in the new proprietor; who, according to the distinction of the canonists[81], acquires the jus ad rem, or inchoate and imperfect right, by nomination and institution; but not the jus in re, or complete and full right, unless by corporal possession. Therefore in dignities possession is given by installment; in rectories and vicarages by induction, without which no temporal rights accrue to the minister, though every ecclesiastical power is vested in him by institution. So also even in descents of lands, by our law, which are cast on the heir by act of the law itself, the heir has not plenum dominium, or full and complete ownership, till he has made an actual corporal entry into the lands: for if he dies before entry made, his heir shall not be intitled to take the possession, but the heir of the person who was last actually seised[82]. It is not therefore only a mere right to enter, but the actual entry, that makes a man complete owner; so as to transmit the inheritance to his own heirs: non jus, sed seisina, facit stipitem[83].
Yet, the corporal tradition of lands being sometimes inconvenient, a symbolical delivery of possession was in many cases antiently allowed; by transferring something near at hand, in the presence of credible witnesses, which by agreement should serve to represent the very thing designed to be conveyed; and an occupancy of this sign or symbol was permitted as equivalent to occupancy of the land itself. Among the Jews we find the evidence of a purchase thus defined in the book of Ruth[84]: “now this was the manner in former time in Israel, concerning redeeming and concerning changing, for to confirm all things: a man plucked off his shoe, and gave it to his neighbour; and this was a testimony in Israel.” Among the antient Goths and Swedes, contracts for the sale of lands were made in the presence of witnesses, who extended the cloak of the buyer, while the seller cast a clod of the land into it, in order to give possession; and a staff or wand was also delivered from the vendor to the vendee, which passed through the hands of the witnesses[85]. With our Saxon ancestors the delivery of a turf was a necessary solemnity, to establish the conveyance of lands[86]. And, to this day, the conveyance of our copyhold estates is usually made from the seller to the lord or his steward by delivery of a rod or verge, and then from the lord to the purchasor by re-delivery of the same, in the presence of a jury of tenants.
Conveyances in writing were the last and most refined improvement. The mere delivery of possession, either actual or symbolical, depending on the ocular testimony and remembrance of the witnesses, was liable to be forgotten or misrepresented, and became frequently incapable of proof. Besides, the new occasions and necessities, introduced by the advancement of commerce, required means to be devised of charging and incumbering estates, and of making them liable to a multitude of conditions and minute designations for the purposes of raising money, without an absolute sale of the land; and sometimes the like proceedings were found useful in order to make a decent and competent provision for the numerous branches of a family, and for other domestic views. None of which could be effected by a mere, simple, corporal transfer of the soil from one man to another, which was principally calculated for conveying an absolute unlimited dominion. Written deeds were therefore introduced, in order to specify and perpetuate the peculiar purposes of the party who conveyed: yet still, for a very long series of years, they were never made use of, but in company with the more antient and notorious method of transfer, by delivery of corporal possession.
Livery of seisin, by the common law, is necessary to be made upon every grant of an estate of freehold in hereditaments corporeal, whether of inheritance or for life only. In hereditaments incorporeal it is impossible to be made; for they are not the object of the senses: and in leases for years, or other chattel interests, it is not necessary. In leases for years indeed an actual entry is necessary, to vest the estate in the lessee: for the bare lease gives him only a right to enter, which is called his interest in the term, or interesse termini; and, when he enters in pursuance of that right, he is then and not before in possession of his term, and complete tenant for years[87]. This entry by the tenant himself serves the purpose of notoriety, as well as livery of seisin from the grantor could have done; which it would have been improper to have given in this case, because that solemnity is appropriated to the conveyance of a freehold. And this is one reason why freeholds cannot be made to commence in futuro, because they cannot be made but by livery of seisin; which livery, being an actual manual tradition of the land, must take effect in praesenti, or not at all[88].
On the creation of a freehold remainder, at one and the same time with a particular estate for years, we have before seen that at the common law livery must be made to the particular tenant[89]. But if such a remainder be created afterwards, expectant on a lease for years now in being, the livery must not be made to the lessee for years, for then it operates nothing; “nam quod semel meum est, amplius meum esse non potest[90]:” but it must be made to the remainder-man himself, by consent of the lessee for years: for without his consent no livery of the possession can be given[91]; partly because such forcible livery would be an ejectment of the tenant from his term, and partly for the reasons before given[92] for introducing the doctrine of attornments.
Livery of seisin is either in deed, or in law. Livery in deed is thus performed. The feoffor, lessor, or his attorney, together with the feoffee, lessee, or his attorney, (for this may as effectually be done by deputy or attorney, as by the principals themselves in person) come to the land, or to the house; and there, in the presence of witnesses, declare the contents of the feoffment or lease, on which livery is to be made. And then the feoffor, if it be of land, doth deliver to the feoffee, all other persons being out of the ground, a clod or turf, or a twig or bough there growing, with words to this effect. “I deliver these to you in the name of seisin of all the lands and tenements contained in this deed.” But, if it be of a house, the feoffor must take the ring, or latch of the door, the house being quite empty, and deliver it to the feoffee in the same form; and then the feoffee must enter alone, and shut to the door, and then open it, and let in the others[93]. If the conveyance or feoffment be of divers lands, lying scattered in one and the same county, then in the feoffor’s possession, livery of seisin of any parcel, in the name of the rest, sufficeth for all[94]; but, if they be in several counties, there must be as many liveries as there are counties. For, if the title to these lands comes to be disputed, there must be as many trials as there are counties, and the jury of one county are no judges of the notoriety of a fact in another. Besides, antiently this seisin was obliged to be delivered coram paribus de vicineto, before the peers or freeholders of the neighbourhood, who attested such delivery in the body or on the back of the deed; according to the rule of the feodal law[95], pares debent interesse investiturae feudi, et non alii: for which this reason is expressly given; because the peers or vasals of the lord, being bound by their oath of fealty, will take care that no fraud be committed to his prejudice, which strangers might be apt to connive at. And though, afterwards, the ocular attestation of the pares was held unnecessary, and livery might be made before any credible witnesses, yet the trial, in case it was disputed, (like that of all other attestations[96]) was still reserved to the pares or jury of the county[97]. Also, if the lands be out on lease, though all lie in the same county, there must be as many liveries as there are tenants: because no livery can be made in this case, but by the consent of the particular tenant; and the consent of one will not bind the rest[98]. And in all these cases it is prudent, and usual, to endorse the livery of seisin on the back of the deed, specifying the manner, place, and time of making it; together with the names of the witnesses[99]. And thus much for livery in deed.
Livery in law is where the same is not made on the land, but in sight of it only; the feoffor saying to the feoffee, “I give you yonder land, enter and take possession.” Here, if the feoffee enters during the life of the feoffor, it is a good livery, but not otherwise; unless he dares not enter, through fear of his life or bodily harm: and then his continual claim, made yearly, in due form of law, as near as possible to the lands[100], will suffice without an entry[101]. This livery in law cannot however be given or received by attorney, but only by the parties themselves[102].
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The conveyance by gift, donatio, is properly applied to the creation of an estate-tail, as feoffment is to that of an estate in fee, and lease to that of an estate for life or years. It differs in nothing from a feoffment, but in the nature of the estate passing by it: for the operative words of conveyance in this case are do or dedi[103]; and gifts in tail are equally imperfect without livery of seisin, as feoffments in fee-simple[104]. And this is the only distinction that Littleton seems to take, when he says[105], “it is to be understood that there is feoffor and feoffee, donor and donee, lessor and lessee;” viz. feoffor is applied to a feoffment in fee-simple, donor to a gift in tail, and lessor to a lease for life, or for years, or at will. In common acceptation gifts are frequently confounded with the next species of deeds: which are,
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Grants, concessiones; the regular method by the common law of transferring the property of incorporeal hereditaments, or, such things whereof no livery can be had[106]. For which reason all corporeal hereditaments, as lands and houses, are said to lie in livery; and the others, as advowsons, commons, rents, reversions, &c, to lie in grant[107]. And the reason is given by Bracton[108]: “traditio, or livery, nihil aliud est quam rei corporalis de persona in personam, de manu in manum, translatio aut in possessionem inductio; sed res incorporales, quae sunt ipsum jus rei vel corpori inhaerens, traditionem non patiuntur.” These therefore pass merely by the delivery of the deed. And in signiories, or reversions of lands, such grant, together with the attornment of the tenant (while attornments were requisite) were held to be of equal notoriety with, and therefore equivalent to, a feoffment and livery of lands in immediate possession. It therefore differs but little from a feoffment, except in it’s subject matter: for the operative words therein commonly used are dedi et concessi, “have given and granted.”
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A lease is properly a conveyance of any lands or tenements, (usually in consideration of rent or other annual recompense) made for life, for years, or at will, but always for a less time than the lessor hath in the premises: for if it be for the whole interest, it is more properly an assignment than a lease. The usual words of operation in it are, “demise, grant, and to farm set; dimisi, concessi, et ad firmam tradidi.” Farm, or feorme, is an old Saxon word signifying provisions[109]: and it came to be used instead of rent or render, because antiently the greater part of rents were reserved in provisions; in corn, in poultry, and the like; till the use of money became more frequent. So that a farmer, firmarius, was one who held his lands upon payment of a rent or feorme: though at present, by a gradual departure from the original sense, the word farm is brought to signify the very estate or lands so held upon farm or rent. By this conveyance an estate for life, for years, or at will, may be created, either in corporeal or incorporeal hereditaments: though livery of seisin is indeed incident and necessary to one species of leases, viz. leases for life of corporeal hereditaments; but to no other.
Whatever restrictions, by the severity of the feodal law, might in times of very high antiquity be observed with regard to leases; yet by the common law, as it has stood for many centuries, all persons seised of any estate might let leases to endure so long as their own interest lasted, but no longer. Therefore tenant in fee-simple might let leases of any duration; for he hath the whole interest: but tenant in tail, or tenant for life, could make no leases which should bind the issue in tail or reversioner; nor could a husband, seised jure uxoris, make a firm or valid lease for any longer term than the joint lives of himself and his wife, for then his interest expired. Yet some tenants for life, where the fee-simple was in abeyance, might (with the concurrence of such as have the guardianship of the fee) make leases of equal duration with those granted by tenants in fee-simple: such as parsons and vicars with consent of the patron and ordinary[110]. So also bishops, and deans, and such other sole ecclesiastical corporations as are seised of the fee-simple of lands in their corporate right, might, with the concurrence and confirmation of such persons as the law requires, have made leases for years, or for life, estates in tail, or in fee, without any limitation or controll. And corporations aggregate might have made what estates they pleased, without the confirmation of any other person whatsoever. Whereas now, by several statutes, this power where it was unreasonable, and might be made an ill use of, is restrained; and, where in the other cases the restraint by the common law seemed too hard, it is in some measure removed. The former statutes are called the restraining, the latter the enabling statute. We will take a view of them all, in order of time.
And, first, the enabling statute, 32 Hen. VIII. c. 28. empowers three manner of persons to make leases, to endure for three lives or one and twenty years, which could not do so before. As, first, tenant in tail, may by such leases bind his issue in tail, but not those in remainder or reversion. Secondly, a husband seised in right of his wife, in fee-simple or fee-tail, provided the wife joins in such lease, may bind her and her heirs thereby. Lastly, all persons seised of an estate of fee-simple in right of their churches, except parsons and vicars, may (without the concurrence of any other person) bind their successors. But then there must many requisites be observed, which the statute specifies, otherwise such leases are not binding[111]. 1. The lease must be by indenture; and not by deed poll, or by parol. 2. It must begin from the making, or day of the making, and not at any greater distance of time. 3. If there be any old lease in being, it must be first absolutely surrendered, or be within a year of expiring. 4. It must be either for twenty one years, or three lives; and not for both. 5. It must not exceed the term of three lives, or twenty one years, but maybe for a shorter term. 6. It must be of corporeal hereditaments, and not of such things as lie merely in grant; for no rent can be reserved thereout by the common law, as the lessor cannot resort to them to distrein[112]. 7. It must be of lands and tenements most commonly letten for twenty years past; so that if they have been let for above half the time (or eleven years out of the twenty) either for life, for years, at will, or by copy of court roll, it is sufficient. 8. The most usual and customary feorm or rent, for twenty years past, must be reserved yearly on such lease. 9. Such leases must not be made without impeachment of waste. These are the guards, imposed by the statute (which was avowedly made for the security of farmers and the consequent improvement of tillage) to prevent unreasonable abuses, in prejudice of the issue, the wife, or the successor, of the reasonable indulgence here given.
Next follows, in order of time, the disabling or restraining statute, 1 Eliz. c. 19. (made entirely for the benefit of the successor) which enacts, that all grants by archbishops and bishops (which include even those confirmed by the dean and chapter; the which, however long and unreasonable, were good at common law) other than for the term of one and twenty years or three lives from the making, or without reserving the usual rent, shall be void. Concurrent leases, if confirmed by the dean and chapter, are held to be within the exception of this statute, and therefore valid; provided they do not exceed (together with the lease in being) the term permitted by the act[113]. But, by a saving expressly made, this statute of 1 Eliz. did not extend to grants made by any bishop to the crown; by which means queen Elizabeth procured many fair possessions to be made over to her by the prelates, either for her own use, or with intent to be granted out again to her favourites, whom she thus gratified without any expense to herself. To prevent which[114] for the future, the statute 1 Jac. I. c. 3. extends the prohibition to grants and leases made to the king, as well as to any of his subjects.
Next comes the statute 13 Eliz. c. 10. explained and enforced by the statutes 14 Eliz. c. 11 & 14. 18 Eliz. c. 11. and 43 Eliz. c. 29. which extend the restrictions, laid by the last mentioned statute on bishops, to certain other inferior corporations, both sole and aggregate. From laying all which together we may collect, that all colleges, cathedrals, and other ecclesiastical, or eleemosynary corporations, and all parsons and vicars, are restrained from making any leases of their lands, unless under the following regulations: 1. They must not exceed twenty one years, or three lives, from the making. 2. The accustomed rent, or more, must be yearly reserved thereon. 3. Houses in corporations, or market towns, may be let for forty years; provided they be not the mansion-houses of the lessors, nor have above ten acres of ground belonging to them; and provided the lessee be bound to keep them in repair: and they may also be aliened in fee-simple for lands of equal value in recompense. 4. Where there is an old lease in being, no concurrent lease shall be made, unless where the old one will expire within three years. 5. No lease (by the equity of the statute) shall be made without impeachment of waste[115]. 6. All bonds and covenants tending to frustrate the provisions of the statutes 13 & 18 Eliz. shall be void.
Concerning these restrictive statutes there are two observations to be made. First, that they do not, by any construction, enable any persons to make such leases as they were by common law disabled to make. Therefore a parson, or vicar, though he is restrained from making longer leases than for twenty one years or three lives, even with the consent of patron and ordinary, yet is not enabled to make any lease at all, so as to bind his successor, without obtaining such consent[116]. Secondly, that though leases contrary to these acts are declared void, yet they are good against the lessor during his life, if he be a sole corporation; and are also good against an aggregate corporation so long as the head of it lives, who is presumed to be the most concerned in interest. For the act was intended for the benefit of the successor only; and no man shall make an advantage of his own wrong[117].
There is yet another restriction with regard to college leases, by statute 18 Eliz. c. 6. which directs, that one third of the old rent, then paid, should for the future be reserved in wheat or malt, reserving a quarter of wheat for each 6s 8d, or a quarter of malt for every 5s; or that the lessees should pay for the same according to the price that wheat and malt should be sold for, in the market next adjoining to the respective colleges, on the market-day before the rent becomes due. This is said[118] to have been an invention of lord treasurer Burleigh, and sir Thomas Smith, then principal secretary of state; who, observing how greatly the value of money had sunk, and the price of all provisions risen, by the quantity of bullion imported from the newfound Indies, (which effects were likely to increase to a greater degree) devised this method for upholding the revenues of colleges. Their forefight and penetration has in this respect been very apparent: for, though the rent so reserved in corn was at first but one third of the old rent, or half of what was still reserved in money, yet now the proportion is nearly inverted; and the money arising from corn rents is, communibus annis, almost double to the rents reserved in money.
The leases of beneficed clergymen are farther restrained, in case of their non-residence, by statutes 13 Eliz. c. 20. 14 Eliz. c. 11. and 18 Eliz. c. 11. which direct, that, if any beneficed clergyman be absent from his cure above fourscore days in any one year, he shall not only forfeit one year’s profit of his benefice, to be distributed among the poor of the parish; but that all leases made by him, of the profits of such benefice, and all covenants and agreements of like nature, shall cease and be void: except in the case of licensed pluralists, who are allowed to demise the living, on which they are non-resident, to their curates only; provided such curates do not absent themselves above forty days in any one year. And thus much for leases, with their several enlargements and restrictions[119].
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An exchange is a mutual grant of equal interests, the one in consideration of the other. The word “exchange” is so individually requisite and appropriated by law to this case, that it cannot be supplied by any other word or expressed by any circumlocution[120]. The estates exchanged must be equal in quantity[121]; not of value, for that is immaterial, but of interest; as fee-simple for fee-simple, a lease for twenty years for a lease for twenty years, and the like. And the exchange may be of things that lie either in grant or in livery[122]. But no livery of seisin, even in exchanges of freehold, is necessary to perfect the conveyance[123]: for each party stands in the place of the other and occupies his right, and each of them hath already had corporal possession of his own land. But entry must be made on both sides; for, if either party die before entry, the exchange is void, for want of sufficient notoriety[124]. And so also, if two parsons, by consent of patron and ordinary, exchange their preserments; and the one is presented, instituted, and inducted, and the other is presented, and instituted, but dies before induction; the former shall not keep his new benefice, because the exchange was not completed, and therefore he shall return back to his own[125]. For if, after an exchange of lands or other hereditaments, either party be evicted of those which were taken by him in exchange, through defect of the other’s title; he shall return back to the possession of his own, by virtue of the implied warranty contained in all exchanges[126].
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A partition, is when two or more joint-tenants, coparceners, or tenants in common, agree to divide the lands so held among them in severalty, each taking a distinct part. Here, as in some instances there is a unity of interest, and in all a unity of possession, it is necessary that they all mutually convey and assure to each other the several estates, which they are to take and enjoy separately. By the common law coparceners, being compellable to make partition, might have made it by parol only; but joint-tenants and tenants in common must have done it by deed: and in both cases the conveyance must have been perfected by livery of seisin[127]. And the statutes of 31 Hen. VIII. c. 1. and 32 Hen. VIII. c. 32. made no alteration in this point. But the statute of frauds 29 Car. II. c. 3. hath now abolished this distinction, and made a deed in all cases necessary.
These are the several species of primary, or original conveyances. Those which remain are of the secondary, or derivative sort; which presuppose some other conveyance precedent, and only serve to enlarge, confirm, alter, restrain, restore, or transfer the interest granted by such original conveyance. As,
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Releases; which are a discharge or conveyance of a man’s right in lands or tenements, to another that hath some former estate in possession. The words generally used therein are “remised, released, and for ever quit-claimed[128].” And these releases may enure either, 1. By way of enlarging an estate, or enlarger l’estate: as, if there be tenant for life or years, remainder to another in fee, and he in remainder releases all his right to the particular tenant and his heirs, this gives him the estate in fee[129]. But in this case the relessee must be in possession of some estate, for the release to work upon; for if there be lessee for years, and, before he enters and is in possession, the lessor releases to him all his right in the reversion, such release is void for want of possession in the relessee[130]. 2. By way of passing an estate, or mitter l’estate: as when one of two coparceners releaseth all her right to the other, this passeth the fee-simple of the whole[131]. And in both these cases there must be a privity of estate between the relessor and relessee[132]; that is, one of their estates must be so related to the other, as to make but one and the same estate in law. 3. By way of passing a right, or mitter le droit: as if a man be disseised, and releaseth to his disseisor all his right; hereby the disseisor acquires a new right, which changes the quality of his estate, and renders that lawful which before was tortious[133]. 4. By way of extinguishment: as if my tenant for life makes a lease to A for life, remainder to B and his heirs, and I release to A; this extinguishes my right to the reversion, and shall enure to the advantage of B’s remainder as well as of A’s particular estate[134]. 5. By way of entry and feoffment: as if there be two joint disseisors, and the disseisee releases to one of them, he shall be sole seised; and shall keep out his former companion; which is the same in effect as if the disseisee had entered, and thereby put an end to the disseisin, and afterwards had enfeoffed one of the disseisors in fee[135]. And hereupon we may observe, that when a man has in himself the possession of lands, he must at the common law convey the freehold by feoffment and livery; which makes a notoriety in the country: but if a man has only a right or a future interest, he may convey that right or interest by a mere release to him that is in possession of the land: for the occupancy of the relessee is a matter of sufficient notoriety already.
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A confirmation is of a nature nearly allied to a release. Sir Edward Coke defines if[136] to be a conveyance of an estate or right in esse, whereby a voidable estate is made sure and unavoidable, or whereby a particular estate is encreased: and the words of making it are these, “have given, granted, ratified, approved, and confirmed[137].” An instance of the first branch of the definition is, if tenant for life leaseth for forty years, and dieth during that term; here the lease for years is voidable by him in reversion: yet, if he hath confirmed the estate of the lessee for years, before the death of tenant for life, it is no longer voidable but sure[138]. The latter branch, or that which tends to the encrease of a particular estate, is the same in all respects with that species of release, which operates by way of enlargement.
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A surrender, sursumredditio, or rendering up, is of a nature directly opposite to a release; for, as that operates by the greater estate’s descending upon the less, a surrender is the falling of a less estate into a greater by deed. It is defined[139], a yielding up of an estate for life or years to him that hath the immediate reversion or remainder, wherein the particular estate may merge or drown, by mutual agreement between them. It is done by these words, “hath surrendered, granted, and yielded up.” The surrenderor must be in possession[140]; and the surrenderee must have a higher estate, in which the estate surrendered may merge: therefore tenant for life cannot surrender to him in remainder for years[141]. In a surrender there is no occasion for livery of seisin[142]; for there is a privity of estate between the surrenderor, and the surrenderee; the one’s particular estate, and the other’s remainder are one and the same estate; and livery having been once made at the creation of it, there is no necessity for having it afterwards. And, for the same reason, no livery is required on a release or confirmation in fee to tenant for years or at will, though a freehold thereby passes; since the reversion of the relessor, or confirmor, and the particular estate of the relessee, or confirmee, are one and the same estate; and where there is already a possession, derived from such a privity of estate, any farther delivery of possession would be vain and nugatory[143].
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An assignment is properly a transfer, or making over to another, of the right one has in any estate; but it is usually applied to an estate for life or years. And it differs from a lease only in this: that by a lease one grants an interest less than his own, reserving to himself a reversion; in assignments he parts with the whole property, and the assignee stands to all intents and purposes in the place of the assignor.
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A defeazance is a collateral deed, made at the same time with a feoffment or other conveyance, containing certain conditions, upon the performance of which the estate then created may be defeated[144] or totally undone. And in this manner mortgages were in former times usually made; the mortgagor enfeoffing the mortgagee, and he at the same time executing a deed of defeazance, whereby the feoffment was rendered void on re-payment of the money borrowed at a certain day. And this, when executed at the same time with the original feoffment, was considered as part of it by the antient law[145]; and, therefore only, indulged: no subsequent secret revocation of a solemn conveyance, executed by livery of seisin, being allowed in those days of simplicity and truth; though, when uses were afterwards introduced, a revocation of such uses was permitted by the courts of equity. But things that were merely executory, or to be completed by matter subsequent, (as rents, of which no seisin could be had till the time of payment; and so also annuities, conditions, warranties, and the like) were always liable to be recalled by defeazances made subsequent to the time of their creation[146].
II. There yet remain to be spoken of some few conveyances, which have their force and operation by virtue of statute of uses.
Uses and trusts are in their original of a nature very similar, or rather exactly the same: answering more to the fidei-commissum than the usus-fructus, of the civil law; which latter was the temporary right of using a thing, without having the ultimate property, or full dominion of the substance[147]. But the fidei-commissum, which usually was created by will, was the disposal of an inheritance to one, in confidence that he should convey it or dispose of the profits at the will of another. And it was the business of a particular magistrate, the praetor fidei-commissarius, instituted by Augustus, to enforce the observance of this confidence[148]. So that the right thereby given was looked upon as a vested right, and entitled to a remedy from a court of justice: which occasioned that known division of rights by the Roman law, into jus legitimum, a legal right, which was remedied by the ordinary course of law; jus fiduciarium, a right in trust, for which there was a remedy in conscience; and jus precarium, a right in courtesy, for which the remedy was only by in treaty or request[149]. In our law, a use might be ranked under the rights of the second kind; being a confidence reposed in another who was tenant of the land, or terre-tenant, that he should dispose of the land according to the intentions of cestuy que use, or him to whose use it was granted, and suffer him to take the profits[150]. As, if a feoffment was made to A and his heirs, to the use of (or in trusr for) B and his heirs; here at the common law A the terre-tenant had the legal property and possession of the land, but B the cestuy que use was in conscience and equity to have the profits and disposal of it.
This notion was transplanted into England from the civil law, about the close of the reign of Edward III[151], by means of the foreign ecclesiastics; who introduced it to evade the statutes of mortmain, by obtaining grants of lands, not to their religious houses directly, but to the use of the religious houses[152]: which the clerical chancellors of those times held to be fidei-commisssa, and binding in conscience; and therefore assumed the jurisdiction, which Augustus had vested in his praetor, of compelling the execution of such trusts in the court of chancery. And, as it was most easy to obtain such grants from dying persons, a maxim was established, that though by law the lands themselves were not devisable, yet if a testator had enfeoffed another to his own use, and so was possessed of the use only, such use was devisable by will. But we have seen[153] how this evasion was crushed in it’s infancy, by statute 15 Ric. II. c. 5. with respect to religious houses.
Yet, the idea being once introduced, however fraudulently, it afterwards continued to be often innocently, and sometimes very laudably, applied to a number of civil purposes: particularly as it removed the restraint of alienations by will, and permitted the owner of lands in his lifetime to make various designations of their profits, as prudence, or justice, or family convenience, might from time to time require. Till at length, during our long wars in France and the subsequent civil commotions between the houses of York and Lancaster, uses grew almost universal: through the desire that men had (when their lives were continually in hazard) of providing for their children by will, and of securing their estates from forfeitures; when each of the contending parties, as they became uppermost, alternately attainted the other. Wherefore about the reign of Edward IV, (before whose time, lord Bacon remarks[154], there are not six cases to be found relating to the doctrine of uses) the courts of equity began to reduce them to something of a regular system.
Originally it was held that the chancery could give no relief, but against the very person himself intrusted for cestuy que use, and not against his heir or alienee. This was altered in the reign of Henry VI, with respect to the heir[155]; and afterwards the same rule, by a parity of reason, was extended to such alienees as had purchased either without a valuable consideration, or with an express notice of the use[156]. But a purchasor for a valuable consideration, without notice, might hold the land discharged of any trust or confidence. And also it was held, that neither the king or queen, on account of their dignity royal[157], nor any corporation aggregate, on account of it’s limited capacity[158], could be seised to any use but their own; that is, they might hold the lands, but were not compellable to execute the trust. And, if the feoffee to uses died without heir, or committed a forfeiture, or married, neither the lord who entered for his escheat or forfeiture, nor the husband who retained the possession as tenant by the curtesy, nor the wife who was assigned her dower, were liable to perform the use[159]; because they were not parties to the trust, but came in by act of law: though doubtless their title in reason was no better than that of the heir.
On the other hand the use itself, or interest of cestuy que use, was learnedly refined upon with many elaborate distinctions. And, 1. It was held that nothing could be granted to a use, whereof the use is inseparable from the possession; as annuities, ways, commons, and authorities, quae ipso usu consumuntur[160]: or whereof the seisin could not be instantly given[161]. 2. A use could not be raised without a sufficient consideration. For where a man makes a feoffment to another without any consideration, equity presumes that he meant it to the use of himself[162]: unless he expressly declares it to be to the use of another, and then nothing shall be presumed contrary to his own expressions[163]. But, if either a good or a valuable consideration appears, equity will immediately raise a use correspondent to such consideration[164]. 3. Uses were descendible according to the rules of the common law, in the case of inheritances in possession[165]; for in this and many other respects aequitas sequitur legem, and cannot establish a different rule of property from that which the law has established. 4. Uses might be assigned by secret deeds between the parties[166], or be devised by last will and testament[167]: for, as the legal estate in the soil was not transferred by these transactions, no livery of seisin was necessary; and, as the intention of the parties was the leading principle in this species of property, any instrument declaring that intention was allowed to be binding in equity. But cestuy que use could not at common law aliene the legal interest of the lands, without the concurrence of his feoffee[168]; to whom he was accounted by law to be only tenant at sufferance[169]. Uses were not liable to any of the feodal burthens; and particularly did not escheat for felony or other defect of blood; for escheats, &c, are the consequence of tenure, and uses are held of nobody: but the land itself was liable to escheat, whenever the blood of the feoffee to uses was extinguished by crime or by defect; and the lord (as was before observed) might hold it discharged of the use[170]. 6. No wife could be endowed, or husband have his curtesy, of a use[171]: for no trust was declared for their benefit, at the original grant of the estate. And therefore it became customary, when most estates were put in use, to settle before marriage some joint estate to the use of the husband and wife for their lives; which was the original of modern jointures[172]. 7. A use could not be extended by writ of elegit, or other legal process, for the debts of cestuy que use[173]. For, being merely a creature of equity, the common law, which looked no farther than to the person actually seised of the land, could award no process against it.
It is impracticable, upon our present plan, to pursue the doctrine of uses through all the refinements and niceties, which the ingenuity of the times (abounding in subtile disquisitions) deduced from this child of the imagination; when once a departure was permitted from the plain simple rules of property established by the antient law. These principal outlines will be fully sufficient to shew the ground of lord Bacon’s complaint[174], that this course of proceeding “was turned to deceive many of their just and reasonable rights. A man, that had cause to sue for land, knew not against whom to bring his action, or who was the owner of it. The wife was defrauded of her thirds; the husband of his curtesy; the lord of his wardship, relief, heriot, and escheat; the creditor of his extent for debt; and the poor tenant of his lease.” To remedy these inconveniences abundance of statutes were provided, which made the lands liable to be extended by the creditors of cestuy que use[175]; allowed actions for the freehold to be brought against him, if in the actual pernancy or enjoyment of the profits[176]; made him liable to actions of waste[177]; established his conveyances and leases made without the concurrence of his feoffees[178]; and gave the lord the wardship of his heir, with certain other feodal perquisites[179].
These provisions all tended to consider cestuy que use as the real owner of the estate; and at length that idea was carried into full effect by the statute 27 Hen. VIII. c. 10. which is usually called the statute of uses, or, in conveyances and pleadings, the statute for transferring uses into possession. The hint seems to have been derived from what was done at the accession of king Richard III; who having, when duke of Glocester, been frequently made a feoffee to uses, would upon the assumption of the crown (as the law was then understood) have been intitled to hold the lands discharged of the use. But, to obviate so notorious an injustice, an act of parliament was immediately passed[180], which ordained that, where he had been so infeoffed jointly with other persons, the land should vest in the other feoffees, as if he had never been named; and that, where he stood solely infeoffed, the estate itself should vest in cestuy que use in like manner as he had the use. And so the statute of Henry VIII, after reciting the various inconveniences before-mentioned and many others, enacts, that “when any person shall be seised of lands, &c. to the use, confidence, or trust, of any other person or body politic, the person or corporation intitled to the use in fee-simple, fee-tail, for life, or years, or otherwise, shall from thenceforth stand and be seised or possessed of the land, &c, of and in the like estates as they have in the use, trust, or confidence; and that the estate of the person so seised to uses shall be deemed to be in him or them that have the use, in such quality, manner, form, and condition, as they had before in the use.” The statute thus executes the use, as our lawyers term it; that is, it conveys the possession to the use, and transfers the use into possession: thereby making cestuy que use complete owner of the lands and tenements, as well at law as in equity.
The statute having thus, not abolished the conveyance to uses, but only annihilated the intervening estate of the feoffee, and turned the interest of cestuy que use into a legal instead of an equitable ownership; the courts of common law began to take cognizance of uses, instead of sending the party to seek his relief in chancery. And, considering them now as merely a mode of conveyance, very many of the rules before established in equity were adopted with improvements by the judges of the common law. The same persons only were held capable of being seised to a use, the same considerations were necessary for raising it, and it could only be raised of the same hereditaments, as formerly. But as the statute, the instant it was raised, converted it into an actual possession of the land, a great number of the incidents, that formerly attended it in it’s fiduciary state, were now at an end. The land could not escheat or be forfeited by the act or defect of the feoftee, nor be aliened to any purchasor discharged of the use, nor be liable to dower or curtesy on account of the seisin of such feoffee; because the legal estate never rests in him for a moment, but is instantaneously transferred to cestuy que use, as soon as the use is declared. And, as the use and the land were now convertible terms, they became liable to dower, curtesy, and escheat, in consequence of the seisin of cestuy que use, who was now become the terre-tenant also; and they likewise were no longer devisable by will.
The various necessities of mankind induced also the judges very soon to depart from the rigour and simplicity of the rule’s of the common law, and to allow a more minute and complex construction upon conveyances to uses than upon others. Hence it was adjudged, that the use need not always be executed the instant the conveyance is made: but, if it cannot take effect at that time, the operation of the statute may wait till the use shall arise upon some future contingency, to happen within a reasonable period of time; and in the mean while the antient use shall remain in the original grantor: as, when lands are conveyed to the use of A and B, after a marriage shall be had between them[181], or to the use of A and his heirs till B shall pay him a sum of money, and then to the use of B and his heirs[182]. Which doctrine, when devises by will were again introduced, and considered as equivalent in point of construction to declarations of uses, was also adopted in favour of executory devises[183]. But herein these, which are called contingent or springing, uses differ from an executory devise; in that there must be a person seised to such uses at the time when the contingency happens, else they can never be executed by the statute; and therefore, if the estate of the feoffee to such use be destroyed by alienation or otherwise, before the contingency arises, the use is destroyed for ever[184]: whereas by an executory devise the freehold itself is transferred to the future devisee. And, in both these cases, a fee may be limited to take effect after a fee[185], because, though that was forbidden by the common law in favour of the lord’s escheat, yet, when the legal estate was not extended beyond one fee-simple, such subsequent uses (after a use in fee) were before the statute permitted to be limited in equity; and then the statute executed the legal estate in the same manner as the use before subsisted. It was also held that a use, though executed, may change from one to another by circumstances ex post facto[186]; as, if A makes a feoffment to the use of his intended wife and her eldest son for their lives, upon the marriage the wife takes the whole use in severalty; and, upon the birth of a son, the use is executed jointly in them both[187]. This is sometimes called a secondary, sometimes a shifting, use. And, whenever the use limited by the deed expires, or cannot vest, it returns back to him who raised it, after such expiration or during such impossibility, and is stiled a resulting use. As, if a man makes a feoffment to the use of his intended wife for life, with remainder to the use of her first-born son in tail: here, till he marries the use results back to himself; after marriage, it is executed in the wife for life; and, if she dies without issue, the whole results back to him in fee[188]. It was likewise held, that the uses originally declared may be revoked at any future time, and new uses be declared of the land, provided the grantor reserved to himself such a power at the creation of the estate; whereas the utmost that the common law would allow, was a deed of defeazance coeval with the grant itself (and therefore esteemed a part of it) upon events specifically mentioned[189]. And, in case of such a revocation, the old uses were held instantly to cease, and the new ones to become executed in their stead[190]. And this was permitted, partly to indulge the convenience, and partly the caprice of mankind; who (as lord Bacon observes[191]) have always affected to have the disposition of their property revocable in their own time, and irrevocable ever afterwards.
By this equitable train of decisions in the courts of law, the power of the court of chancery over landed property was greatly curtailed and diminished. But one or two technical scruples, which the judges found it hard to get over, restored it with tenfold increase. They held in the first place, that “no use could be limited on a use[192],” and that when a man bargains and sells his land for money, which railes a use by implication to the bargainee, the limitation of a farther use to another person is repugnant and therefore void[193]. And therefore, on a feoffment to A and his heirs, to the use of B and his heirs, in trust for C and his heirs, they held that the statute executed only the first use, and that the second was a mere nullity: not adverting, that the instant the first use was executed in B, he became seised to the use of C, which second use the statute might as well be permitted to execute as it did the first; and so the legal estate might be instantaneously transmitted down, through a hundred uses upon uses, till finally executed in the last cestuy que use. Again; as the statute mentions only such persons as were seised to the use of others, this was held not to extend to terms of years, or other chattel interests, whereof the termor is not seised, but only possessed[194]; and therefore, if a term of one thousand years be limited to A, to the use of (or in trust for) B, the statute does not execute this use, but leaves it as at common law[195]. And lastly, (by more modern resolutions) where lands are given to one and his heirs, in trust to receive and pay over the profits to another, this use is not executed by the statute: for the land must remain in the trustee to enable him to perform the trust[196].
Of the two more antient distinctions the courts of equity quickly availed themselves. In the first case it was evident, that B was never intended by the parties to have any beneficial interest; and, in the second, the cestuy que use of the term was expressly driven into the court of chancery to seek his remedy: and therefore that court determined, that though these were not uses, which the statute could execute, yet still they were trusts in equity, which in conscience ought to be performed. To this the reason of mankind assented, and the doctrine of uses was revived, under the denomination of trusts: and thus, by this strict construction of the courts of law, a statute made upon great deliberation, and introduced in the most solemn manner, has had little other effect than to make a flight alteration in the formal words of a conveyance[197].
However, the courts of equity, in the exercise of this new jurisdiction, have wisely avoided in a great degree those mischiefs which made uses intolerable. They now consider a trust-estate (either when expressly declared or resulting by necessary implication) as equivalent to the legal ownership, governed by the same rules of property, and liable to every charge in equity, which the other is subject to in law: and, by a long series of uniform determinations, for now near a century past, with some assistance from the legislature, they have raised a new system of rational jurisprudence, by which trusts are made to answer in general all the beneficial ends of uses, without their inconvenience or frauds. The trustee is considered as merely the instrument of conveyance, and can in no shape affect the estate, unless by alienation for a valuable consideration to a purchasor without notice[198]; which, as cestuy que use is generally in possession of the land, is a thing that can rarely happen. The trust will descend, may be aliened, is liable to debts, to forfeiture, to leases and other incumbrances, nay even to the curtesy of the husband, as if it was an estate at law. It has not yet indeed been subjected to dower, more from a cautious adherence to some hasty precedents[199], than from any well-grounded principle. It hath also been held not liable to escheat to the lord, in consequence of attainder or want of heirs[200]: because the trust could never be intended for his benefit. But let us now return to the statute of uses.
The only service, as was before observed, to which this statute is now consigned, is in giving efficacy to certain new and secret species of conveyances; introduced in order to render transactions of this sort as private as possible, and to save the trouble of making livery of seisin, the only antient conveyance of corporeal freeholds: the security and notoriety of which public investiture abundantly overpaid the labour of going to the land, or of sending an attorney in one’s stead. But this now his given way to
-
A twelfth species of conveyance, called a covenant to stand seised to uses: by which a man, seised of lands, covenants in consideration of blood or marriage that he will stand seised of the same to the use of his child, wife, or kinsman; for life, in tail, or in fee. Here the statute executes at once the estate; for the party intended to be benefited, having thus acquired the use, is thereby put at once into corporal possession of the land[201], without ever seeing it, by a kind of parliamentary magic. But this conveyance can only operate, when made upon such weighty and interesting considerations as those of blood or marriage.
-
A thirteenth species of conveyance, introduced by this statute, is that of a bargain and sale of lands; which is a kind of a real contract, whereby the bargainor for some pecuniary consideration bargains and sells, that is, contracts to convey, the land to the bargainee; and becomes by such bargain a trustee for, or seised to the use of, the bargainee; and then the statute of uses completes the purchase[202]: or, as it has been well expressed[203], the bargain first vests the use, and then the statute vests the possession. But as it was foreseen that conveyances, thus made, would want all those benefits of notoriety, which the old common law assurances were calculated to give; to prevent therefore clandestine conveyances of freeholds, it was enacted in the same session of parliament by statute 27 Hen. VIII. c. 16. that such bargains and sales should not enure to pass a freehold, unless the same be made by indenture, and enrolled within six months in one of the courts of Westminster-hall or with the custos rotulorum of the county. Clandestine bargains and sales of chattel interests, or leases for years, were thought not worth regarding, as such interests were very precarious till about six years before[204]; which also occasioned them to be overlooked in framing the statute of uses: and therefore such bargains and sales are not directed to be enrolled. But how impossible is it to foresee, and provide against, all the consequences of innovations! This omission has given rise to
-
A fourteenth specics of conveyance, viz. by lease and release; first invented by serjeant Moore, soon after the statute of uses, and now the most common of any, and therefore not to be shaken; though very great lawyers (as, particularly, Mr Noy) have formerly doubted it’s validity[205]. It is thus contrived. A lease, or rather bargain and sale, upon some pecuniary consideration, for one year, is made by the tenant of the freehold to the lessee or bargainee. Now this, without any enrollment, makes the bargainor stand seised to the use of the bargainee, and vests in the bargainee the use of the term for a year; and then the statute immediately annexes the possession. He therefore, being thus in possession, is capable of receiving a release of the freehold and reversion; which, we have seen before[206], must be made to a tenant in possession: and accordingly, the next day, a release is granted to him[207]. This is held to supply the place of livery of seisin; and so a conveyance by lease and release is said to amount to a feoffment[208].
-
To these may be added deeds to lead or declare the uses of other more direct conveyances, as feoffments, fines, and recoveries; of which we shall speak in the next chapter: and,
-
Deeds of revocation of uses; hinted at in a former page[209], and founded in a previous power, reserved at the raising of the uses[210], to revoke such as were then declared; and to appoint others in their stead, which is incident to the power of revocation[211]. And this may suffice for a specimen of conveyances founded upon the statute of uses; and will finish our observations upon such deeds as serve to transfer real property.
Before we conclude, it will not be improper to subjoin a few remarks upon such deeds as are used not to convey, but to charge or incumber, lands, and discharge them again: of which nature are, obligations or bonds, recognizances, and defeazances, upon them both.
- An obligation, or bond, is a deed[212] whereby the obligor obliges himself, his heirs, executors, and administrators, to pay a certain sum of money to another at a day appointed. If this be all, the bond is called a single one, simplex obligatio; but there is generally a condition added, that if the obligor does some particular act, the obligation shall be void, or else shall remain in full force: as, payment of rent; performance of covenants in a deed; or repayment of a principal sum of money borrowed of the obligee, with interest, which principal sum is usually one half of the penal sum specified in the bond. In case this condition is not performed, the bond becomes forfeited, or absolute at law, and charges the obligor while living; and after his death the obligation descends upon his heir, who (on defect of personal assets) is bound to discharge it, provided he has real assets by descent as a recompense. So that it may be called, though not a direct, yet a collateral, charge upon the lands. How it affects the personal property of the obligor, will be more properly considered hereafter.
If the condition of a bond be impossible at the time of making it, or be to do a thing contrary to some rule of law that is merely positive, or be uncertain, or insensible, the condition alone is void, and the bond shall stand single and unconditional: for it is the folly of the obligor to enter into such an obligation, from which he can never be released. If it be to do a thing that is malum in se, the obligation itself is void: for the whole is an unlawful contract, and the obligee shall take no advantage from such a transaction. And if the condition be possible at the time of making it, and afterwards becomes impossible by the act of God, the act of law, or the act of the obligee himself, there the penalty of the obligation is saved: for no prudence or foresight of the obligor could guard against such a contingency[213]. On the forfeiture of a bond, or it’s becoming single, the whole penalty was recoverable at law: but here the courts of equity interposed, and would not permit a man to take more than in conscience he ought; viz. his principal, interest, and expenses, in case the forfeiture accrued by non-payment of money borrowed; the damages sustained, upon non performance of covenants: and the like. And the statute 4 & 5 Ann. c. 16. hath also enacted, in the same spirit of equity, that in case of a bond, conditioned for the payment of money, the payment or tender of the principal sum due, with interest, and costs, even though the bond be forfeited and a suit commenced thereon, shall be a full satisfaction and discharge.
-
A recognizance is an obligation of record, which a man enters into before some court of record or magistrate duly authorized[214], with condition to do some particular act; as to appear at the assises, to keep the peace, to pay a debt, or the like. It is in most respects like another bond; the difference being chiefly this; that the bond is the creation of a fresh debt or obligation de novo, the recognizance is an acknowlegement of a former debt, upon record; the form, whereof is, “that A. B. doth acknowlege to owe to our lord the king, to the plaintiff, to C. D. or the like, the sum of ten pounds,” with condition to be void on performance of the thing stipulated: in which case the king, the plaintiff, C. D. &c, is called the cognizee, “is cui cognoscitur;” as he that enters into the recognizance is called the cognizor, “is qui cognoscit.” This, being either certified to, or taken, by the officer of some court, is witnessed only by the record of that court, and not by the party’s seal: so that it is not in strict propriety a deed, though the effects of it are greater than a common obligation; being allowed a priority in point of payment, and binding the lands of the cognizor, from the time of enrollment on record[215]. There are also other recognizances, of a private kind, in nature of a statute staple, by virtue of the statute 23 Hen. VIII. c. 6. which have been already explained[216], and shewn to be a charge upon real property.
-
A defeazance, on a bond, or recognizance, or judgment recovered, is a condition which, when performed, defeats or undoes it, in the same manner as a defeazance of an estate before-mentioned. It differs only from the common condition of a bond, in that the one is always inserted in the deed or bond itself, the other is made between the same parties by a separate and frequently a subsequent deed[217]. This, like the condition of a bond, when performed, discharges and disincumbers the estate of the obligor.
These are the principal species of deeds or matter in pais, by which estates may be either conveyed, or at lead affected. Among which the conveyances to uses are by much the most frequent of any; though in these there is certainly one palpable defect, the want of sufficient notoriety: so that purchasors or creditors cannot know with any absolute certainty, what the estate, and the title to it, in reality are, upon which they are to lay out or to lend their money. In the antient feodal method of conveyance (by chiving corporal seisin of the lands) this notoriety was in some measure answered; but all the advantages resulting from thence are now totally defeated by the introduction of death-bed devises and secret conveyances: and there has never been yet any sufficient guard provided against fraudulent charges and incumbrances; since the disuse of the old Saxon custom of transacting all conveyances at the county court, and entering a memorial of them in the chartulary or leger-book of some adjacent monastery[218]; and the failure of the general register established by king Richard the first, for mortgages made to Jews, in the capitula de Judaeis, of which Hoveden has preserved a copy. How far the establishment of a like general register, for deeds, and wills, and other acts affecting real property, would remedy this inconvenience, deserves to be well considered. In Scotland every act and event, regarding the transmission of property, is regularly entered on record[219]. And some of our own provincial divisions, particularly the extended county of York, and the populous county of Middlesex, have prevailed with the legislature[220] to erect such registers in their several districts. But, however plausible these provisions may appear in theory, it hath been doubted by very competent judges, whether more disputes have not arisen in those counties by the inattention and omissions of parties, than prevented by the use of registers.
↑ Co. Litt. 171.
↑ Plowd. 434.
↑ Lyndew. l. 1. t. 10. c. 1.
↑ Mirror. c. 2. §. 27.
↑ Ibid. Litt. §. 371, 372.
↑ Co. Litt. 35.
↑ Stat. 13 Eliz. c. 8.
↑ Stat. 27 Eliz. c. 4.
↑ Stat. 13 Eliz. c. 5.
↑ Perk. §. 533.
↑ 3 Rep. 83.
↑ Co. Litt. 229. F. N. B. 122.
↑ Co. Litt. 225.
↑ Ibid. 6.
↑ See appendix, №. II. §. 2. pag. v.
↑ Ibid.
↑ Co. Litt. 21. 2 Roll. Rep. 19. 23. Cro. Jac. 476.
↑ 2 Rep. 23. 8 Rep. 56.
↑ Append. №. I. Madox. Formul. passim.
↑ Append. №. II. §. 1. pag. iii.
↑ See pag. 41.
↑ Plowd. 13. 8 Rep. 71.
↑ Append. №. I. pag. i.
↑ Append. №. II. §. 2. pag. viii.
↑ Ibid. №. I. pag. i.
↑ Feud. l. 2. t. 8, & 25.
↑ Co. Litt. 384.
↑ Litt. §. 143.
↑ Co. Litt. 174.
↑ Ibid. 384.
↑ Ibid.
↑ Co. Litt. 102.
↑ Litt. § 733.
↑ Co. Litt. 373.
↑ Litt. §. 703. 706,7 07.
↑ Litt. §. 705. 707.
↑ Ibid. §. 698. 702.
↑ Co. Litt. 102.
↑ Litt. §. 711, 712.
↑ Co. Litt. 373.
↑ Litt. §. 712. 2 Inst. 293.
↑ pag. 116.
↑ Co. Litt. 374. 2 Inst. 335.
↑ Append. №. II. §. 2. pag. viii.
↑ Ibid. pag xii.
↑ Co. Litt. 46. Dyer. 28.
↑ 2 Rep. 3, 9. 11 Rep. 27.
↑ 1 Kings. c. 21. Daniel. c.6. Esther. c. 8.
↑ “And I bought the field of Hanameel, and weighed him the money, even seventeen shekels of silver. And I subscribed the evidence, and sealed it, and took witnesses, and weighed him the money in the ballances. And I took the evidence of the purchase, both that which was sealed according to the law and custom, and also that which was open.” c. 32.
↑ Inst. 2. 10. 2 & 3.
↑ 1 Inst. 7.
↑ “Propria manu pro ignorantia literarum signum sanctae crucis expressi et subscripti.” Seld. Jan. Angl. l. 1. §. 42. And this (acccording to Procopius) the emperor Justin in the east, and Theodoric king of the Goths in Italy, had before authorized by their example, on account of their inability to write.
↑ Lamb. Archeion. 51.
↑ “Normanni chirographorum confectionem, cum crucibus aureis, aliisque signaculis sacris, in Anglia firmari solitam, in caeram impressam mutant, modumque scribendi Anglicum rejiciunt.” Ingulph.
↑ 3 Lev. 1. Stra. 764.
↑ Perk. §. 130.
↑ Co. Litt. 36.
↑ Feud. l. 1. t. 4.
↑ Co. Litt. 7.
↑ Feud. l. 2. t. 32.
↑ Spelm. Gloss. 228. Madox. Formul. №. 221. 322. 660.
↑ Co. Litt. 6.
↑ 2 Inst. 77.
↑ Madox. Formul. №. 515.
↑ Ibid. Dissert. fol. 32.
↑ 2 Inst. 78.
↑ 11 Rep. 27.
↑ 5 Rep. 23.
↑ Toth. num°. 24. 1 Vern. 348.
↑ Co. Litt. 9.
↑ Ibid.
↑ Wright. 21.
↑ pag. 108.
↑ Co. Litt. 42.
↑ See Appendix. №. I.
↑ Co. Litt. 9.
↑ Litt. §. 66.
↑ Wright. 37.
↑ l. 3. c. 15. §. 5.
↑ Nam apiscimur possessionem corpore et animo: neque per se corpore; neque per se animo. Non autem ita accipiendum est, ut qui fundum possidere velit, omnes glebas circumambulet; sed sufficit quamlibet partem ejus fundi introire. (Ff. 41. 2. 3.) And again: traditionibus dominia rerum, non nudis pactis, transferuntur. (Cod. 2. 3. 20.)
↑ Decretal. l. 3. t. 4. c. 40.
↑ See pag. 209. 227, 228.
↑ Flet. l. 6. c. 2. §. 2.
↑ ch. 4. v. 7.
↑ Stiernhook. de jure Sueon. l. 2. c. 4.
↑ Hickes. Dissert. epistolar. 85.
↑ Co. Litt. 46.
↑ See pag. 165.
↑ pag. 167.
↑ Co. Litt. 49.
↑ Co. Litt. 48.
↑ pag. 288.
↑ Co. Litt. 48. West. Symb. 251.
↑ Litt. §. 414.
↑ Feud. l. 2. t. 58.
↑ See pag. 307.
↑ Gilb. Ten. 35.
↑ Dyer. 18.
↑ See appendix. №. I.
↑ Litt. §. 421, &c.
↑ Co. Litt. 48.
↑ Ibid. 52.
↑ West’s Symbol. 256.
↑ Litt. §. 59.
↑ §. 57.
↑ Co. Litt. 9.
↑ Ibid. 172.
↑ l. 2. c. 18.
↑ Spelm. Gl. 229.
↑ Co. Litt. 44.
↑ Co. Litt. 44.
↑ But now by the statute 5 Geo. III. c. 17. a lease of tithes or other incorporeal hereditaments, alone, may be granted by any bishop or ecclesiastical or eleemosynary corporation, and the successor shall be intitled to recover the rent by an action of debt, which (in case of a freehold lease) he could not have brought at the common law.
↑ Co. Litt. 45.
↑ 11 Rep. 71.
↑ Co. Litt. 45.
↑ Ibid. 44.
↑ Ibid. 45.
↑ Strype’s annals of Eliz.
↑ For the other learning relating to leases, which is very curious and diffusive, I must refer the student to 3 Bac. abridg. 295. (title leases and terms for years) where the subject is treated in a perspicuous and masterly manner; being supposed to be extracted from a manuscript of sir Geoffrey Gilbert.
↑ Co. Litt. 50, 51.
↑ Litt. §. 64, 65.
↑ Co. Litt. 51.
↑ Litt. §. 62.
↑ Co. Litt. 50.
↑ Perk. §. 288.
↑ pag. 301.
↑ Litt. §. 250. Co. Litt. 169.
↑ Litt. §. 445.
↑ Ibid. §. 465.
↑ Ibid. §. 459.
↑ Co. Litt. 273.
↑ Ibid. 272, 273.
↑ Litt. §. 466.
↑ Ibid. §. 470.
↑ Co. Litt. 278.
↑ 1 Inst. 293.
↑ Litt. §. 515. 531.
↑ Ibid. §. 516.
↑ Co. Litt. 337.
↑ Ibid. 338.
↑ Perk. §. 589.
↑ Co. Litt. 50.
↑ Litt. §. 460.
↑ From the French verb defaire, infectum reddere.
↑ Co. Litt. 236.
↑ Ibid. 237.
↑ Ff. 7. 1. 1.
↑ Inst. 2. tit. 23.
↑ Ff. 43. 26. 1. Bacon on uses. 8°. 306.
↑ Plowd. 352.
↑ Stat. 50 Edw. III. c. 6. 1 Ric. II. c. 9.
↑ See pag. 271.
↑ pag. 272.
↑ on uses. 313.
↑ Keilw. 42. Yearbook 22 Edw. IV. 6.
↑ Keilw. 46. Bacon of uses. 312.
↑ Bro. Abr. tit. Feoffm. al uses. 31. Bacon of uses. 346, 347.
↑ Bro. Abr. tit. Feoffm. al uses. 40. Bacon. 347.
↑ 1 Rep. 122.
↑ 1 Jon. 127.
↑ Cro. Eliz. 401.
↑ See pag. 296.
↑ 1 And. 37.
↑ Moor. 684.
↑ 2 Roll. Abr. 780.
↑ Bacon of uses. 312.
↑ Ibid. 308.
↑ Stat. 1 Ric. III. c. 1.
↑ Bro. Abr. ibid. 23.
↑ Jenk. 190.
↑ 4 Rep. 1. 2 And. 75.
↑ See pag. 137.
↑ Bro. Abr. tit. executions. 90.
↑ Use of the law. 153.
↑ Stat. 50 Edw. III. c. 6. 2 Ric. II. sess. 2. c. 3. 19 Hen. VII. c. 15.
↑ Stat. 1 Ric. II. c. 9. 4 Hen. IV. c. 7. 11 Hen. VI. c. 3. 1 Hen. VII. c. 1.
↑ Stat. 11 Hen. VI. c. 5.
↑ Stat. 1 Ric. III. c. 1.
↑ Stat. 4 Hen. VII. c. 17. 19 Hen. VII. c. 15.
↑ 1 Ric. III. c. 5.
↑ 2 Roll. Abr. 791. Cro. Eliz. 439.
↑ Bro. Abr. tit. Feoff. al uses. 30.
↑ See pag. 173.
↑ 1 Rep. 134. 138. Cro. Eliz. 439.
↑ Pollexf. 78. 10 Mod. 423.
↑ Bro. Abr. tit. Feoffm. al uses. 30.
↑ Bacon of uses. 351.
↑ Ibid. 350. 1 Rep. 120.
↑ See pag. 327.
↑ Co. Litt. 237.
↑ on uses. 316.
↑ Dyer. 155.
↑ 1 And. 37. 136.
↑ Bacon law of uses. 335. Jenk. 244.
↑ Poph. 76. Dyer. 369.
↑ 1 Equ. Cas. abr. 383, 384.
↑ Vaugh. 50. Atk. 591.
↑ 2 Freem. 43.
↑ 1 Chanc. Rep. 254. 2 P. Wms. 640.
↑ Hardr. 494. Burgess and Wheate, Hil. 32 Geo. II. in Canc.
↑ Bacon. Use of the law. 151.
↑ Ibid. 150.
↑ Cro. Jac. 696.
↑ See pag. 142.
↑ 2 Mod. 252.
↑ pag. 324.
↑ See appendix. №. II. §. 1, 2.
↑ Co. Litt. 270. Cro. Jac. 604.
↑ pag. 335.
↑ See appendix. №. II. pag. xi.
↑ Co. Litt. 237.
↑ See appendix. №. III. pag. xiii.
↑ Co. Litt. 206.
↑ Bro. Abr. tit. recognizance. 24.
↑ Stat. 29 Car. II. c. 3. §. 18.
↑ See pag. 160.
↑ Co. Litt. 237. 2 Saund. 47.
↑ Hickes Dissertat. epistolar. 9.
↑ Dalrymple on feodal property. 262, &c.
↑ Stat. 2 & 3 Ann. c. 4. 6 Ann. c. 35. 7 Ann. c. 20. 8 Geo. II. c. 6.
Chapter the twenty first.
Of ALIENATION by matter of RECORD.
ASSURANCES by matter of record are such as do not entirely depend on the act or consent of the parties themselves: but the sanction of a court of record is called in, to substantiate, preserve, and be a perpetual testimony of, the transfer of property from one man to another; or of it’s establishment, when already transferred. Of this nature are, 1. Private acts of parliament. 2. The king’s grants. 3. Fines. 4. Common recoveries.
I. Private acts of parliament are, especially of late years, become a very common mode of assurance. For it may sometimes happen, that, by the ingenuity of some, and the blunders of other practitioners, an estate is most grievously entangled by a multitude of contingent remainders, resulting trusts, springing uses, executory devises, and the like artificial contrivances; (a confusion unknown to the simple conveyances of the common law) so that it is out of the power of either the courts of law or equity to relieve the owner. Or it may sometimes happen, that, by the strictness or omissions of family settlements, the tenant of the estate is abridged of some reasonable power, (as letting leases, making a jointure for a wife, or the like) which power cannot be given him by the ordinary judges either in common law or equity. Or it may be necessary, in settling an estate, to secure it against the claims of infants or other persons under legal disabilitles; who are not bound by any judgments or decrees of the ordinary courts of justice. In these, or other cases of the like kind, the transcendent power of parliament is called in, to cut the Gordian knot; and by a particular law, enacted for this very purpose, to unfetter an estate; to give it’s tenant reasonable powers; or to assure it to a purchasor, against the remote or latent claims of infants or disabled persons, by settling a proper equivalent in proportion to the interest so barred. This practice was carried to a great length in the year succeeding the restoration; by setting aside many conveyances alleged to have been made by constraint, or in order to screen the estates from being forfeited during the usurpation. And at last it proceeded so far, that, as the noble historian expresses it[1], every man had raised an equity in his own imagination, that he thought ought to prevail against any descent, testament, or act of law, and to find relief in parliament: which occasioned the king at the close of the session to remark[2], that the good old rules of law are the best security; and to wish, that men might not have too much cause to fear, that the settlements which they make of their estates shall be too easily unsettled when they are dead, by the power of parliament.
Acts of this kind are however at present carried on, in both houses, with great deliberation and caution; particularly in the house of lords they are usually referred to two judges, to examine and report the facts alleged, and to settle all technical forms. Nothing also is done without the consent, expressly given, of all parties in being and capable of consent, that have the remotest interest in the matter; unless such consent shall appear to be perversely and without any reason withheld. And, as was before hinted, an equivalent in money or other estate is usually settled upon infants, or perfons not in esse, or not of capacity to act for themselves, who are to be concluded by this act. And a general saving is constantly added, at the close of the bill, of the right and interest of all persons whatsoever; except those whose consent is so given or purchased, and who are therein particularly named.
A law, thus made, though it binds all parties to the bill, is yet looked upon rather as a private conveyance, than as the solemn act of the legislature. It is not therefore allowed to be a public, but a mere private statute; it is not printed or published among the other laws of the session; it hath been relieved against, when obtained upon fraudulent suggestions; and no judge or jury is bound to take notice of it, unless the same be specially set forth and pleaded to them. It remains however enrolled among the public records of the nation, to be for ever preserved as a perpetual testimony of the conveyance or assurance so made or established.
II. The king’s grants are also matter of public record. For, as St. Germyn says[3], the king’s excellency is so high in the law, that no freehold may be given to the king, nor derived from him, but by matter of record. And to this end a variety of offices are erected, communicating in a regular subordination one with another, through which all the king’s grants must pass, and be transcribed, and enrolled; that the same may be narrowly inspected by his officers, who will inform him if any thing contained therein is improper, or unlawful to be granted. These grants, whether of lands, honours, liberties, franchises, or ought besides, are contained in charters, or letters patent, that is, open letters, literae patentes: so called because they are not sealed up, but exposed to open view, with the great seal pendant at the bottom; and are usually directed or addressed by the king to all his subjects at large. And therein they differ from certain other letters of the king, sealed also with his great seal, but directed to particular persons, and for particular purposes: which therefore, not being proper for public inspection, are closed up and sealed on the outside, and are thereupon called writs close, literae clausae; and are recorded in the close-rolls, in the same manner as the others are in the patent-rolls.
Grants or letters patent must first pass by bill: which is prepared by the attorney and solicitor general, in consequence of a warrant from the crown; and is then signed, that is, superscribed at the top, with the king’s own sign manual, and sealed with his privy signet, which is always in the custody of the principal secretary of state; and then sometimes it immediately passes under the great seal, in which case the patent is subscribed in these words, “per ipsum regem, by the king himself[4].” Otherwise the course is to carry an extract of the bill to the keeper of the privy seal, who makes out a writ or warrant thereupon to the chancery; so that the sign manual is the warrant to the privy seal, and the privy seal is the warrant to the great seal: and in this last case the patent is subscribed, “per breve de privato sigillo, by writ of privy seal[5].” But there are some grants, which only pass through certain offices, as the admiralty or treasury, in consequence of a sign manual, without the confirmation of either the signet, the great, or the privy seal.
The manner of granting by the king, does not more differ from that by a subject, than the constructon of his grants, when made. 1. A grant made by the king, at the suit of the grantee, shall be taken most beneficially for the king, and against the party: whereas the grant of a subject is construed most strongly against the grantor. Wherefore it is usual to insert in the king’s grants, that they are made, not at the suit of the grantee, but “ex speciali gratia, certa scientia, et mero motu regis;” and then they have a more liberal construction[6]. 2. A subject’s grant shall be construed to include many things, besides what are expressed, if necessary for the operation of the grant. Therefore, in a private grant of the profits of land for one year, free ingress, egress, and regress, to cut and carry away those profits, are also inclusively granted[7]: and if a feoffment of land was made by a lord to his villein, this operated as a manumission[8]; for he was otherwise unable to hold it. But the king’s grant shall not enure to any other intent, than that which is precisely expressed in the grant. As, if he grants land to an alien, it operates nothing; for such grant shall not also enure to make him a denizen, that so he may be capable of taking by grant[9]. 3. When it appears, from the face of the grant, that the king is mistaken, or deceived, either in matter of fact or matter of law, as in case of false suggestion, misinformation, or misrecital of former grants; or if his own title to the thing granted be different from what he supposes; or if the grant be informal; or if he grants an estate contrary to the rules of law; in any of these cases the grant is absolutely void[10]. For instance; if the king grants lands to one and his heirs male, this is merely void: for it shall not be an estate-tail, because there want words of procreation, to ascertain the body, out of which the heirs shall issue: neither is it a fee-simple, as in common grants it would be; because it may reasonably be supposed, that the king meant to give no more than an estate-tail[11]: the grantee is therefore (if any thing) nothing more than tenant at will[12]. And, to prevent deceits of the king, with regard to the value of the estate granted, it is particularly provided by the statute 1 Hen. IV. c. 6. that no grant of his shall be good, unless, in the grantee’s petition for them, express mention be made of the real value of the lands.
III. We are next to consider a very usual species of assurance, which is also of record; viz. a fine of lands and tenements. In which it will be necessary to explain, 1. The nature of a fine; 2. It’s several kinds; and 3. It’s force and effect.
- A fine is sometimes said to be a feoffment of record[13]: though it might with more accuracy be called, an acknowlegement of a feoffment on record. By which is to be understood, that it has at least the same force and effect with a feoffment, in the conveying and assuring of lands: though it is one of those methods of transferring estates of freehold by the common law, in which livery of seisin is not necessary to be actually given; the supposition and acknowlegement thereof in a court of record, however fictitious, inducing an equal notoriety. But, more particularly, a fine may be described to be an amicable composition or agreement of a suit, either actual or fictitious, by leave of the king or his justices; whereby the lands in question become, or are acknowleged to be, the right of one of the parties[14]. In it’s original it was founded on an actual suit, commenced at law for recovery of the possession of land; and the possession thus gained by such composition was found to be so sure and effectual, that fictitious actions were, and continue to be, every day commenced, for the sake of obtaining the same security.
A fine is so called because it puts an end, not only to the suit thus commenced, but also to all other suits and controversies concerning the same matter. Or, as it is expressed in an antient record of parliament[15], 18 Edw. I. “non in regno Angliae providetur, vel est, aliqua securitas major vel solennior, per quam aliquis statum certiorem habere possit, neque ad statum suum verificandum aliquod solennius testimonium producere, quam finem in curia domini regis levatum: qui quidem finis sic vocatur, eo quod finis et consummatio omnium placitorum esse debet, et hac de causa providebatur.” Fines indeed are of equal antiquity with the first rudiments of the law itself; are spoken of by Glanvil[16] and Bracton[17] in the reigns of Henry II, and Henry III, as things then well known and long established; and instances have been produced of them even before the Norman invasion[18]. So that the statute 18 Edw. I. called modus levandi fines, did not give them original, but only declared and regulated the manner in which they should be levied, or carried on. And that is as follows:
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The party, to whom the land is to be conveyed or assured, commences an action or suit at law against the other, generally an action of covenant, by suing out a writ or praecipe, called a writ of covenant[19]: the foundation of which is a supposed agreement or covenant, that the one shall convey the lands to the other; on the breach of which agreement the action is brought. On this writ there is due to the king, by antient prerogative, a primer fine, or a noble for every five marks of land sued for; that is, one tenth of the annual value[20]. The suit being thus commenced, then follows,
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The licentia concordandi, or leave to agree the suit[21]. For, as soon as the action is brought, the defendant, knowing himself to be in the wrong, is supposed to make overtures of peace and accommodation to the plaintiff. Who, accepting them, but having, upon suing out the writ, given pledges to prosecute his suit, which he endangers if he now deserts it without licence, he therefore applies to the court for leave to make the matter up. This leave is readily granted, but for it there is also another fine due to the king by his prerogative; which is an antient revenue of the crown, and is called the king’s silver, or sometimes the post fine, with respect to the primer fine before-mentioned. And it is as much as the primer fine, and half as much more, or ten shillings for every five marks of land; that is, three twentieths of the supposed annual value[22].
-
Next comes the concord, or agreement itself[23], after leave obtained from the court; which is usually an acknowlegement from the deforciants (or those who keep the other out of possession) that the lands in question are the right of the complainant. And from this acknowlegement, or recognition of right, the party levying the fine is called the cognizor, and he to whom it is levied the cognizee. This acknowlegement must be made either openly in the court of common pleas, or before one of the judges of that court, or else before commissioners in the country, empowered by a special authority called a writ of dedimus potestatem; which judges and commissioners are bound by statute 18 Edw. I. st. 4. to take care that the cognizors be of full age, found memory, and out of prison. If there be any feme-covert among the cognizors, she is privately examined whether she does it willingly and freely, or by compulsion of her husband.
By these acts all the essential parts of a fine are completed; and, if the cognizor dies the next moment after the fine is acknowleged, provided it be subsequent to the day on which the writ is made returnable[24], still the fine shall be carried on in all it’s remaining parts: of which the next is
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The note of the fine[25]: which is only an abstract of the writ of covenant, and the concord; naming the parties, the parcels of land, and the agreement. This must be enrolled of record in the proper office, by direction of the statute 5 Hen. IV. c. 14.
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The fifth part is the foot of the fine, or conclusion of it: which includes the whole matter, reciting the parties, day, year, and place, and before whom it was acknowleged or levied[26]. Of this there are indentures made, or engrossed, at the chirographer’s office, and delivered to the cognizor and the cognizee; usually beginning thus, “haec est finalis concordia, this is the final agreement,” and then reciting the whole proceeding at length. And thus the fine is completely levied at common law.
By several statutes still more solemnities are superadded, in order to render the fine more universally public, and less liable to be levied by fraud or covin. And, first, by 27 Edw. I. c. 1. the note of the fine shall be openly read in the court of common pleas, at two several days in one week, and during such reading, all pleas shall cease. By 5 Hen. IV. c. 14. and 23 Eliz. c. 3. all the proceedings on fines either at the time of acknowlegement, or previous, or subsequent thereto, shall be enrolled of record in the common court of pleas. By 1 Ric. III. c. 7. confirmed and enforced by 4 Hen. VII. c. 24. the fine, after engrossment, shall be openly read and proclaimed in court sixteen times; viz. four times in the term in which it is made, and four times in each of the three succeeding terms; during which time all pleas shall cease: but this is reduced to once in each term by 31 Eliz. c. 2. and these proclamations are endorsed on the back of the record[27]. It is also enacted by 23 Eliz. c. 3. that the chirographer of fines shall every term write out a table of the fines levied in each county in that term, and shall affix them in some open part of the court of common pleas all the next term: and shall also deliver the contents of such table to the sheriff of every county, who shall at the next assises fix the same in some open place in the court, for the more public notoriety of the fine.
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Fines, thus levied, are of four kinds, 1. What in our law French is called a fine “sur cognizance de droit, com ceo que il ad de son done;” or, a fine upon acknowlegement of the right of the cognizee, as that which he hath of the gift of the cognizor[28]. This is the best and surest kind of fine; for thereby the deforciant, in order to keep his covenant with the plaintiff, of conveying to him the lands in question, and at the same time to avoid the formality of an annual feoffment and livery, acknowleges in court a former feoffment, or gift in possession, to have been made by him to the plaintiff. This fine is therefore said to be a feoffment of record; the livery thus acknowleged in court, being equivalent to an actual livery: so that this assurance is rather a confession of a former conveyance, than a conveyance now originally made; for the deforciant, or cognizor, acknowleges, cognoscit, the rignt to be in the plaintiff, or cognizee, as that which he hath de son done, of the proper gift of himself, the cognizor. 2. A fine “sur cognizance de droit tantum,” or, upon acknowlegement of the right merely; not with the circumstance of a preceding gift from the cognizor. This is commonly used to pass a reversionary interest, which is in the cognizor. For of such reversions there can be no feoffment, or donation with livery, supposed; as the possession during the particular estate belongs to a third person[29]. It is worded in this manner; “that the cognizor acknowleges the right to be in the cognizee; and grants for himself and his heirs, that the reversion, after the particular estate determines, shall go to the cognizee[30].” 3. A fine “sur concessit” is where the cognizor, in order to make an end of disputes, though he acknowleges no precedent right, yet grants to the cognizee an estate de novo, usually for life or years, by way of supposed composition. And this may be done reserving a rent, or the like: for it operates as a new grant[31]. 4. A fine “sur done, grant, et render,” is a double fine, comprehending the fine sur cognizance de droit come ceo, &c, and the fine sur concessit; and may be used to create particular limitations of estate: whereas the fine sur cognizance de droit come ceo, &c, conveys nothing but an absolute estate, either of inheritance or at least of freehold[32]. In this last species of fine, the cognizee, after the right is acknowleged to be in him, grants back again, or renders to the cognizor, or perhaps to a stranger, some other estate in the premises. But, in general, the first species of fine, “sur cognizance de droit come ceo, &c,” is the most used, as it conveys a clean and absolute freehold, and gives the cognizee a seisin in law, without any actual livery; and is therefore called a fine executed, whereas the others are but executory.
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We are next to consider the force and effect of a fine. These principally depend, at this day, on the common law, and the two statutes, 4 Hen. VII. c. 24. and 32 Hen. VIII. c. 36. The antient common law, with respect to this point, is very forcibly declared by the statute 18 Edw. I. in these words. “And the reason, why such solemnity is required in the passing of a fine, is this; because the fine is so high a bar, and of so great force, and of a nature so powerful in itself, that it precludes not only those which are parties and privies to the fine, and their heirs, but all other persons in the world, who are of full age, out of prison, of found memory, and within the four seas the day of the fine levied; unless they put in their claim within a year and a day.” But this doctrine, of barring the right by non-claim, was abolished for a time by a statute made in 34 Edw I. c. 16. which admitted persons to claim, and falsify a fine, at any indefinite distance[33]: whereby, as sir Edward Coke observes[34], great contention arose, and few men were sure of their possessions, till the parliament held 4 Hen. VII. reformed that mischief, and excellently moderated between the latitude given by the statute and the rigour of the common law. For the statute, then made[35], restored the doctrine of non-claim; but extended the time of claim. So that now, by that statute, the right of all strangers whatsoever is bound, unless they make claim, not within one year and a day, as by the common law, but within five years after proclamations made: except feme-coverts, infants, prisoners, persons beyond the seas, and such as are not of whole mind; who have five years allowed to them and their heirs, after the death of their husbands, their attaining full age, recovering their liberty, returning into England, or being restored to their right mind.
It seems to have been the intention of that politic prince, king Henry VII, to have covertly by this statute extended fines to have been a bar of estates-tail, in order to unfetter the more easily the estates of his powerful nobility, and lay them more open to alienations; being well aware that power will always accompany property. But doubts having arisen whether they could, by mere implication, be adjudged a sufficient bar, (which they were expressly declared not to be by the statute de donis) the statute 32 Hen. VIII. c. 36. was thereupon made; which removes all difficulties, by declaring that a fine levied by any person of full age, to whom or to whose ancestors lands have been entailed, shall be a perpetual bar to them and their heirs claiming by force of such entail: unless the fine be levied by a woman after the death of her husband, of lands which were, by the gift of him or his ancestor, assigned to her in tail for her jointure[36]; or unless it be of lands entailed by act of parliament or letters patent, and whereof the reversion belongs to the crown.
From this view of the common law, regulated by these statutes, it appears, that a fine is a solemn conveyance on record from the cognizor to the cognizee, and that the persons bound by a fine are parties, privies, and strangers.
The parties are either the cognizors, or cognizees; and these are immediately concluded by the fine, and barred of any latent right they might have, even though under the legal impediment of coverture. And indeed, as this is almost the only act that a feme-covert, or married woman, is permitted by law to do, (and that because she is privately examined as to her voluntary consent, which removes the general suspicion of compulsion by her husband) it is therefore the usual and almost the only safe method, whereby she can join in the sale, settlement, or incumbrance, of any estate.
Privies to a fine are such as are any way related to the parties who levy the fine, and claim under them by any right of blood, or other right of representation. Such as are the heirs general of the cognizor, the issue in tail since the statute of Henry the eighth, the vendee, the devisee, and all others who must make title by the persons who levied the fine. For the act of the ancestor shall bind the heir, and the act of the principal his substitute, or such as claim under any conveyance made by him subsequent to the fine so levied[37].
Strangers to a fine are all other persons in the world, except only parties and privies. And these are also bound by a fine, unless, within five years after proclamations made, they interpose their claim; provided they are under no legal impediments, and have then a present interest in the estate. The impediments, as hath before been said, are coverture, infancy, imprisonment, infanity, and absence beyond sea: and persons, who are thus incapacitated to prosecute their rights, have five years allowed them to put in their claims after such impediments are removed. Persons also that have not a present, but a future interest only, as those in remainder or reversion, have five years allowed them to claim in, from the time that such right accrues[38]. And if within that time they neglect to claim, or (by the statute 4 Ann. c. 16.) if they do not bring an action to try the right, within one year after making such claim, and prosecute the same with effect, all persons whatsoever are barred of whatever right they may have, by force of the statute of non-claim.
But, in order to make a fine of any avail at all, it is necessary that the parties should have some interest or estate in the lands to be affected by it. Else it were possible that two strangers, by a mere confederacy, might without any risque defraud the owners by levying fines of their lands; for if the attempt be discovered, they can be no sufferers, but must only remain in statu quo: whereas if a tenant for life or years levies a fine, it is an absolute forfeiture of his estate to the remainder-man or reversioner[39], if claimed in proper time. It is not therefore to be supposed that such tenants will frequently run so great a hazard; but if they do, and the claim is not duly made within five years after their respective terms expire[40], the estate is for ever barred by it. Yet where a stranger, whose presumption cannot thus be punished, officiously interferes in an estate which in no wise belongs to him, his fine is of no effect; and may at any time be set aside (unless by such as are parties or privies thereunto[41]) by pleading that “partes finis nihil habuerunt.” And thus much for the conveyance or assurance by fine: which not only like other conveyances binds the grantor himself, and his heirs; but also all mankind, whether concerned in the transfer or no, if they fail to put in their claims within the time allotted by law.
IV. The fourth species of assurance, by matter of record, is a common recovery. Concerning the original of which, it was formerly observed[42], that common recoveries were invented by the ecclesiastics to elude the statutes of mortmain; and afterwards encouraged by the finesse of the courts of law in 12 Edw. IV. in order to put an end to all fettered inheritances, and bar not only estates-tail, but also all remainders and reversions expectant thereon. I am now therefore only to consider, first, the nature of a common recovery; and, secondly, it’s force and effect.
- And, first, the nature of it; or what a common recovery is. A common recovery is so far like a fine, that it is a suit or action, either actual or fictitious: and in it the lands are recovered against the tenant of the freehold; which recovery, being a supposed adjudication of the right, binds all persons, and vests a free and absolute fee-simple in the recoveror. A recovery therefore being in the nature of an action at law, not immediately compromised like a fine, but carried on through every regular stage of proceeding, I am greatly apprehensive that it’s form and method will not be easily understood by the student, who is not yet acquainted with the course of judicial proceedings; which cannot be thoroughly explained, till treated of at large in the third book of these commentaries. However I shall endeavour to state it’s nature and progress, as clearly and concisely as I can; avoiding, as far as possible, all technical terms, and phrases not hitherto interpreted.
Let us, in the first place, suppose David Edwards[43] to be tenant of the freehold, and desirous to suffer a common recovery, in order to bar all entails, remainders, and reversions, and to convey the same in fee-simple to Francis Golding. To effect this, Golding is to bring an action against him for the lands; and he accordingly sues out a writ, called a praecipe quod reddat, because those were it’s initial or most operative words, when the law proceedings were in Latin. In this writ the demandant Golding alleges, that the defendant Edwards (here called the tenant) has no legal title to the land; but that he came into possession of it after one Hugh Hunt had turned the demandant out of it[44]. The subsequent proceedings are made up into a record or recovery roll[45], in which the writ and complaint of the demandant are first recited; whereupon the tenant appears, and calls upon one Jacob Morland, who is supposed, at the original purchase, to have warranted the title to the tenant; and thereupon he prays, that the said Jacob Morland may be called in to defend the title which he so warranted. This is called the voucher, vocatio, or calling of Jacob Morland to warranty; and Morland is called the vouchee. Upon this, Jacob Morland, the vouchee, appears, is impleaded, and defends the title. Whereupon Golding, the demandant, defires leave of the court to imparl, or confer with the vouchee in private; which is (as usual) allowed him. And soon afterwards the demandant, Golding, returns to court, but Morland the vouchee disappears, or makes default. Whereupon judgment is given for the demandant, Golding, now called the recoveror, to recover the lands in question against the tenant, Edwards, who is now the recoveree: and Edwards has judgment to recover of Jacob Morland lands of equal value, in recompense for the lands so warranted by him, and now lost by his default; which is agreeable to the doctrine of warranty mentioned in the preceding chapter[46]. This is called the recompense, or recovery in value. But Jacob Morland having no lands of his own, being usually the cryer of the court (who, from being frequently thus vouched, is called the common vouchee) it is plain that Edwards has only a nominal recompense for the lands so recovered against him by Golding; which lands are now absolutely vested in the said recoveror by judgment of law, and seisin thereof is delivered by the sheriff of the county. So that this collusive recovery operates merely in the nature of a conveyance in fee-simple, from Edwards the tenant in tail, to Golding the purchasor.
The recovery, here described, is with a single voucher only; but sometimes it is with double, treble, or farther voucher, as the exigency of the case may require. And indeed it is now usual always to have a recovery with double voucher at the least; by first conveying an estate of freehold to any indifferent person, against whom the praecipe is brought; and then he vouches the tenant in tail, who vouches over the common vouchee[47]. For, if a recovery be had immediately against tenant in tail, it bars only such estate in the premises of which he is then actually seised: whereas if the recovery be had against another person, and the tenant in tail be vouched, it bars every latent right and interest which he may have in the lands recovered[48]. If Edwards therefore be tenant of the freehold in possession, and John Barker be tenant in tail in remainder, here Edwards doth first vouch Barker, and then Barker vouches Jacob Morland the common vouchee; who is always the last person vouched, and always makes default: whereby the demandant Golding recovers the land against the tenant Edwards, and Edwards recovers a recompense of equal value against Barker the first vouchee; who recovers the like against Morland the common vouchee, against whom such ideal recovery in value is always ultimately awarded.
This supposed recompense in value is the reason why the issue in tail is held to be barred by a common recovery. For, if the recoveree should ever obtain a recompense in lands from the common vouchee (which there is a possibility in contemplation of law, though a very improbable one, of his doing) these lands would supply the place of those so recovered from him by collusion, and would descend to the issue in tail[49]. This reason will also hold, with equal force, as to most remainder-men and reversioners; to whom the possibility will remain and revert, as a full recompense for the reality, which they were otherwise entitled to: but it will not always hold; and therefore, as Pigott says[50], the judges have been even astuti, in inventing other reasons to maintain the authority of recoveries. And, in particular, it hath been said, that, though the estate-tail is gone from the recoveree, yet it is not destroyed, but only transferred; and still subsists, and will ever continue to subsist (by construction of law) in the recoveror, his heirs, and assigns: and, as the estate-tail so continues to subsist for ever, the remainders or reversions expectant on the determination of such estate-tail can never take place.
To such aukward shifts, such subtle refinements, and such strange reasoning, were our ancestors obliged to have recourse, in order to get the better of that stubborn statute de donis. The design, for which these contrviances were set on foot, was certainly laudable; the unrivetting the fetters of estates-tail, which were attended with a legion of mischeifs to the commonwealth: but, while we applaud the end, we cannot but admire the means. Our modern courts of justice have indeed adopted a more manly way of treating the subject; by considering common recoveries in no other light, than as the formal mode of conveyance, by which tenant in tail is enabled to aliene his lands. But, since the ill consequences of fettered inheritances are now generally seen and allowed, and of course the utility and expedience of setting them at liberty are apparent; it hath often been wished, that the process of this conveyance was shortened, and rendered less subject to niceties, by either totally repealing the statute de donis; which perhaps, by reviving the old doctrine of conditional fees, might give birth to many litigations: or by vesting in every tenant in tail of full age the same absolute fee-simple at once, which now he may obtain whenever he pleases, by the collusive fiction of a common recovery; though this might possibly bear hard upon those in remainder or reversion, by abridging the chances they would otherwise frequently have, as no recovery can be suffered in the intervals between term and term, which sometimes continue for near five months together: or, lastly, by empowering the tenant in tail to bar the estate-tail by a solemn deed, to be made in term time and enrolled in some court of record; which is liable to neither of the other objections, and is warranted not only by the usage of our American colonies, but by the precedent of the statute[51] 21 Jac. I. c. 19. which, in case of a bankrupt tenant in tail, empowers his commissioners to sell the estate at any time, by deed indented and enrolled. And if, in so national a concern, the emoluments of the officers, concerned in passing recoveries, are thought to be worthy attention, those might be provided for in the fees to be paid upon each enrollment.
- The force and effect of common recoveries may appear, from what has been said, to be an absolute bar not only of all estates-tail, but of remainders and reversions expectant on the determination of such estates. So that a tenant in tail may, by this method of assurance, convey the lands held in tail to the recoveror his heirs and assigns, absolutely free and discharged of all conditions and limitations in tail, and of all remainders and reversions. But, by statute 34 & 35 Hen. VIII. c. 20. no recovery had against tenant in tail, of the king’s gift, whereof the remainder or reversion is in the king, shall bar such estate tail, or the remainder or reversion of the crown. And by the statute 11 Hen. VII. c. 20. no woman, after her husband’s death, shall suffer a recovery of lands settled on her in tail by way of jointure by her husband or any of his ancestors. And by statute 14 Eliz. c. 8, no tenant for life, of any sort, can suffer a recovery, so as to bind them in remainder or reversion. For which reason, if there be tenant for life, with remainder in tail, and other remainders over, and the tenant for life is desirous to suffer a valid recovery; either he, or the tenant to the praecipe by him made, must vouch the remainder-man in tail, otherwise the recovery is void: but if he does vouch such remainder-man, and he appears and vouches the common vouchee, it is then good; for if a man be vouched and appears, and suffers the recovery to be had, it is as effectual to bar the estate-tail as if he himself were the recoveree[52].
In all recoveries it is necessary that the recoveree, or tenant to the praecipe, as he is usually called, be actually seised of the freehold, else the recovery is void[53]. For all actions, to recover the seisin of lands, must be brought against the actual tenant of the freehold, else the suit will lose it’s effect; since the freehold cannot be recovered of him who has it not. And, though these recoveries are in themselves fabulous and fictitious, yet it is necessary that there be actores fabulae, properly qualified. But the nicety thought by some modern practitioners to be requisite in conveying the legal freehold, in order to make a good tenant to the praecipe, is removed by the provisions of the statute 14 Geo. II. c. 20. which enacts, with a retrospect and conformity to the antient rule of law[54], that, though the legal freehold be vested in lessees, yet those who are intitled to the next freehold estate in remainder or reversion may make a good tenant to the praecipe: and that, though the deed or fine which creates such tenant be subsequent to the judgment of recovery, yet, if it be in the same term, the recovery shall be valid in law: and that, though the recovery itself do not appear to be entered, or be not regularly entered, on record, yet the deed to make a tenant to the praecipe, and declare the uses of the recovery, shall after a possession of twenty years be sufficient evidence, on behalf of a purchasor for valuable consideration, that such recovery was duly suffered. And this may suffice to give the student a general idea of common recoveries, the last species of assurances by matter of record.
Before I conclude this head, I must add a word concerning deeds to lead, or to declare, the uses of fines, and of recoveries. For if they be levied or suffered without any good consideration, and without any uses declared, they, like other conveyances, enure only to the use of him who levies or suffers them[55]. And if a consideration appears, yet as the most usual fine, “sur cognizance de droit come ceo, &c,” conveys an absolute estate, without any limitations, to the cognizee; and as common recoveries do the same to the recoveror; these assurances could not be made to answer the purpose of family settlements, (wherein a variety of uses and designations is very often expedient) unless their force and effect were subjected to the direction of other more complicated deeds, wherein particular uses can be more particularly expressed. The fine or recovery itself, like a power once gained in mechanics, may be applied and directed to give efficacy to an infinite variety of movements, in the vast and intricate machine of a voluminous family settlement. And, if these deeds are made previous to the fine or recovery, they are called deeds to lead the uses; if subsequent, deeds to declare them. As, if A tenant in tail, with remainder to himself in fee, would settle his estate on B for life, remainder to C in tail, remainder to D in fee; this is what by law he has no power of doing effectually, while his own estate-tail is in being. He therefore usually covenants to levy a fine (or, if there be any remainders over, to suffer a recovery) to E, and that the same shall enure to the uses in such settlement mentioned. This is now a deed to lead the uses of the fine or recovery; and the fine when levied, or recovery when suffered, shall enure to the uses so specified and no other. For though E, the conusee or recoveree, hath a fee-simple vested in himself by the fine or recovery; yet, by the operation of this deed, he becomes a mere instrument or conduit-pipe, seised only to the use of B, C, and D, in successive order: which use is executed immediately, by force of the statute of uses[56]. Or, if a fine or recovery be had without any previous settlement, and a deed be afterwards made between the parties, declaring the uses to which the same shall be applied, this will be equally good, as if it had been expressly levied or suffered, in consequence of a deed directing it’s operation to those particular uses. For by statute 4 & 5 Ann. c. 16. indentures to declare the uses of fines and recoveries, made after the fines and recoveries had and suffered, shall be good and effectual in law, and the fine and recovery shall enure to such uses, and be esteemed to be only in trust, notwithstanding the statute of frauds 29 Car. II. c. 3. enacts, that all trusts shall be declared in writing, at (and not after) the time when such trusts are created.
↑ Lord Clar. Contin. 162.
↑ Ibid. 163.
↑ Dr & Stud. l. 1. d. 8.
↑ 9 Rep. 18.
↑ Ibid. 2 Inst. 555.
↑ Finch. L. 100. 10 Rep. 112.
↑ Co. Litt. 56.
↑ Litt. §. 206.
↑ Bro. Abr. tit. Patent. 62. Finch. L. 110.
↑ Freem. 172.
↑ Finch. 101, 102
↑ Bro. Abr. tit. Estates. 34. tit. Patents. 104. Dyer. 270. Dav. 45.
↑ Co. Litt. 50.
↑ Co. Litt. 120.
↑ 2 Roll. Abr. 13.
↑ l. 8. c. 1.
↑ l. 5. t. 5. c. 28
↑ Plowd. 369.
↑ See appendix, №. IV. §. 1.
↑ 2 Inst. 511.
↑ Append. №. IV. §. 2.
↑ 5 Rep. 39. 2 Inst. 511.
↑ Append. №. IV. §. 3.
↑ Comb. 71.
↑ Append. №. IV. §. 4.
↑ Ibid. §. 5.
↑ Appendix. №. IV. §. 6.
↑ This is that sort, of which an example is given in the appendix, №. IV.
↑ Moor. 629.
↑ West. Symb. p. 2. §. 95.
↑ West. p. 2. §. 66.
↑ Salk. 340.
↑ Litt. §. 441.
↑ 2 Inst. 518.
↑ 4 Hen. VII. c. 24.
↑ See statute 11 Hen. VII. c. 20.
↑ 3 Rep. 87.
↑ Co. Litt. 372.
↑ Ibid. 251.
↑ 2 Lev. 52.
↑ Hob. 334.
↑ pag. 117. 271.
↑ See appendix. №. V.
↑ §. 1.
↑ §. 2.
↑ pag. 301.
↑ See appendix, pag. xviii.
↑ Bro. Abr. tit. Taile. 32. Plowd. 8.
↑ Dr & St. l. 1. dial. 26.
↑ of com. recov. 13, 14.
↑ See pag. 286.
↑ Salk. 571.
↑ Pigott. 28.
↑ Pigott. 41, &c. 4 Burr. I. 115.
↑ Dyer. 18.
↑ This doctrine may perhaps be more clearly illustrated by example. In the deed or marriage settlement in the appendix, №. II. §. 2. we may suppose the lands to have been originally settled on Abraham and Cecilia Barker for life, remainder to John Barker in tail, with divers other remainders over, reversion to Cecilia Barker in fee; and now intended to be settled to the several uses therein expressed, viz. of Abraham and Cecilia Barker till the marriage; remainder to John Barker for life; remainder to trustees to preserve the contingent remainders; remainder to his widow for life, for her jointure; remainder to other trustees, for a term of five hundred years; remainder to their first and other sons in tail; remainder to their daughters in tail; remainder to John Barker in tail; remainder to Cecilia Barker in fee. Now it is necessary, in order to bar the estate-tail of John Barker, and the remainders expectant thereon, that a recovery be suffered of the premises; and it is thought proper (for though usual, it is by no means necessary: see Forrester. 167.) that in order to make a good tenant of the freehold, or tenant to the praecipe, during the coverture, a fine should be levied by Abraham, Cecilia, and John Barker; and it is agreed that the recovery itself be suffered against this tenant to the praecipe, who shall vouch John Barker, and thereby bar his estate-tail; and become tenant of the fee-simple by virtue of such recovery: the uses of which estate, so acquired, are declared to be those expressed in this deed. Accordingly the parties covenant to do these several acts, (see pag. viii.) And in consequence thereof the fine and recovery are had and suffered (№. IV. and №. V.) of which this conveyance is a deed to lead the uses.
Chapter the twenty second.
Of ALIENATION by SPECIAL CUSTOM.
WE are next to consider assurances by special custom, obtaining only in particular places, and relative only to a particular species of real property. This therefore is a very narrow title; being confined to copyhold lands, and such customary estates, as are holden in antient demesne, or in manners of a similar nature: which, being of a very peculiar kind, and originally no more than tenancies in pure or privileged villenage, were never alienable by deed; for, as that might tend to defeat the lord of his signiory, it is therefore a forfeiture of a copyhold[1]. Nor are they transferrable by matter of record, even in the king’s courts, but only in the court baron of the lord. The method of doing this is generally by surrender; though in some manors, by special custom, recoveries may be suffered of copyholds[2]: but these differing in nothing material from recoveries of free land, save only that they are not suffered in the king’s courts, but in the court baron of the manor, I shall confine myself to conveyances by surrender, and their consequences.
Surrender, sursumredditio, is the yielding up of the estate by the tenant into the hands of the lord, for such purposes as in the surrender are expressed. As, it may be, to the use and behoof of A and his heirs; to the use of his own will; and the like. The process, in most manors, is, that the tenant comes to the steward, either in court, (or, if the custom permits, out of court) or else to two customary tenants of the same manor, provided that also have a custom to warrant it; and there by delivering up a rod, a glove, or other symbol, as the custom directs, resigns into the hands of the lord, by the hands and acceptance of his said steward, or of the said two tenants, all his interest and title to the estate; in trust to be again granted out by the lord, to such persons and for such uses as are named in the surrender, and the custom of the manor will warrant. If the surrender be made out of court, then, at the next or some subsequent court, the jury or homage must present and find it upon their oaths; which presentment is an information to the lord or his steward of what has been transacted out of court. Immediately upon such surrender in court, or upon presentment of a surrender made out of court, the lord by his steward grants the same land again to cestuy que use, (who is sometimes, though rather improperly, called the surrendree) to hold by the antient rights and customary services; and thereupon admits him tenant to the copyhold, according to the form and effect of the surrender, which must be exactly pursued. And this is done by delivering up to the new tenant the rod, or glove, or the like, in the name, and as the symbol, of corporal seisin of the lands and tenements. Upon which admission he pays a fine to the lord, according to the custom of the manor, and takes the oath of fealty.
In this brief abstract, of the manner of transferring copyhold estates, we may plainly trace the visible footsteps of the feodal institutions. The fief, being of a base nature and tenure, is unalienable without the knowlege and consent of the lord. For this purpose it is resigned up, or surrendered into his hands. Custom, and the indulgence of the law, which favours liberty, has now given the tenant a right to name his successor; but formerly it was far otherwise. And I am apt to suspect that this right is of much the same antiquity with the introduction of uses with respect to freehold lands: for the alienee of a copyhold had merely jus fiduciarium, for which there was no remedy at law, but only by subpoena in chancery[3]. When therefore the lord had accepted a surrender of his tenant’s interest, upon confidence to re-grant the estate to another person, either then expressly named or to be afterwards named in the tenant’s will, the chancery inforced this trust as a matter of conscience; which jurisdiction, though seemingly new in the time of Edward IV[4], was generally acquiesced in, as it opened the way for the alienation of copyholds, as well as of freehold estates, and as it rendered the use of them both equally devisable by testament. Yet, even to this day, the new tenant cannot be admitted but by composition with the lord, and paying him a fine by way of acknowlegement for the licence of alienation. Add to this the plain feodal investiture, by delivering the symbol of seisin in presence of the other tenants in open court; “quando hasta vel aliud corporeum quidlibet porrigitur a domino se investituram facere dicente; quae saltem coram duobus vasallis solenniter fieri debet[5]:” and, to crown the whole, the oath of fealty annexed, the very bond of feodal subjection. From all which we may fairly conclude, that, had there been no other evidence of the fact in the rest of our tenures and estates, the very existence of copyholds, and the manner in which they are transferred, would incontestably prove the very universal reception, which this northern system of property for a long time obtained in this island; and which communicated itself, or at least it’s similitude, even to our very villeins and bondmen.
This method of conveyance is so essential to the nature of a copyhold estate, that it cannot possibly be transferred by any other assurance. No feoffment, fine, or recovery (in the king’s courts) has any operation thereupon. If I would exchange a copyhold estate with another, I cannot do it by an ordinary deed of exchange at the common law; but we must surrender to each other’s use, and the lord will admit us accordingly. If I would devise a copyhold, I must surrender it to the use of my last will and testament; and in my will I must declare my intentions, and name a devisee, who will then be entitled to admission[6].
In order the more clearly to apprehend the nature of this peculiar assurance, let us take a separate view of it’s several parts; the surrender, the presentment, and the admittance.
-
A surrender, by an admittance subsequent whereto the conveyance is to receive it’s perfection and confirmation, is rather a manifestation of the alienor’s intention, than a transfer of any interest in possession. For, till admittance of cestuy que use, the lord taketh notice of the surrenderor as his tenant; and he shall receive the profits of the land to his own use, and shall discharge all services due to the lord. Yet the interest remains in him not absolutely, but sub modo; for he cannot pass away the land to any other, or make it subject to any other incumbrance than it was subject to at the time of the surrender. But no manner of legal interest is vested in the nominee before admittance. If he enters, he is a trespasser and punishable in an action of trespass: and if he surrenders to the use of another, such surrender is merely void, and by no matter ex post facto can be confirmed. For though he be admitted in pursuance of the original surrender, and thereby acquires afterwards a sufficient and plenary interest as absolute owner, yet his second surrender previous to his own admittance is absolutely void ab initio; because at the time of such surrender he had but a possibility of an interest, and could therefore transfer nothing: and no subsequent admittance can make an act good, which was ab initio void. Yet, though upon the original surrender the nominee hath but a possibility, it is however such a possibility, as may whenever he pleases be reduced to a certainty: for he cannot either by force or fraud be deprived or deluded of the effect and fruits of the surrender; but if the lord refuse to admit him, he is compellable to do it by a bill in chancery or a mandamus[7]: and the surrenderor can in no wise defeat his grant; his hands being for ever bound from disposing of the land in any other way, and his mouth for ever stopped from revoking or countermanding his own deliberate act[8]; except in the case of a surrender to the use of his will, which is always revocable[9].
-
As to the presentment: that, by the general custom of manors, is to be made at the next court baron immediately after the surrender; but by special custom in some places it will be good, though made at the second or other subsequent court. And it is to be brought into court by the same persons that took the surrender, and then presented by the homage; and in all points material must correspond with the true tenor of the surrender itself. And therefore, if the surrender be conditional, and the presentment be absolute, both the surrender, presentment, and admittance thereupon are wholly void[10]: the surrender, as being never truly presented; the presentment, as being false; and the admittance, as being founded on such untrue presentment. If a man surrenders out of court, and dies before presentment, and presentment be made after his death, according to the custom, this is sufficient[11]. So too, if cestuy que use dies before presentment, yet, upon presentment made after his death, his heir according to the custom shall be admitted. The same law is, if those, into whose hands the surrender is made, die before presentment; for, upon sufficient proof in court that such a surrender was made, the lord shall be compelled to admit accordingly. And if the steward, the tenants, or others into whose hands such surrender is made, do refuse or neglect to bring it in to be presented, upon a petition preferred to the lord in his court baron the party grieved shall find remedy. But if the lord will not do him right and juftice, he may sue both the lord, and them that took the surrender, in chancery, and shall there find relief[12].
-
Admittance is the last stage, or perfection, of copyhold assurances. And this is of three sorts: first, an admittance upon a voluntary grant from the lord; secondly, an admittance upon surrender by the former tenant; and thirdly, an admittance upon a descent from the ancestor.
In admittances, even upon a voluntary grant from the lord, when copyhold lands have escheated or reverted to him, the lord is considered as an instrument. For, though it is in his power to keep the lands in his own hands, or to dispose of them at his pleasure, by granting an absolute fee-simple, a freehold, or a chattel interest therein; and quite to change their nature from copyhold to socage tenure, so that he may well be reputed their absolute owner and lord; yet, if he will still continue to dispose of them as copyhold, he is bound to observe the antient custom precisely in every point, and can neither in tenure nor estate introduce any kind of alteration; for that were to create a new copyhold: wherefore in this respect the law accounts him custom’s instrument. For if a copyhold for life falls into the lord’s hands, by the tenant’s death, though the lord may destroy the tenure and enfranchise the land, yet if he grants it out again by copy, he can neither add to nor diminish the antient rent, nor make any the minutest variation in other respects[13]: nor is the tenant’s estate, so granted, subject to any charges or incumbrances by the lord[14].
In admittances upon surrender of another, the lord is to no intent reputed as owner, but wholly as an instrument: and the tenant admitted shall likewise be subject to no charges or incumbrances of the lord; for his claim to the estate is solely under him that made the surrender[15].
And, as in admittances upon surrenders, so in admittances upon descents by the death of the ancestor, the lord is used as a mere instrument; and, as no manner of interest passes into him by the surrender or the death of his tenant, so no interest passes out of him by the act of admittance. And therefore neither in the one case, nor the other, is any respect had to the quantity or quality of the lord’s estate in the manor. For whether he be tenant in fee or for years, whether he be in possession by right or by wrong, it is not material; since the admittances made by him shall not be impeached on account of his title, because they are judicial, or rather ministerial, acts, which every lord in possession is bound to perform[16].
Admittances, however, upon surrender differ from admittances upon descent in this; that by surrender nothing is vested in cestuy que use before admittance, no more than in voluntary admittances; but upon descent the heir is tenant by copy immediately upon the death of his ancestor: not indeed to all intents and purposes, for he cannot be sworn on the homage nor maintain an action in the lord’s court as tenant; but to most intents the law taketh notice of him as of a perfect tenant of the land instantly upon the death of his ancestor, especially where he is concerned with any stranger. He may enter into the land before admittance; may take the profits; may punish any trespass done upon the ground[17]; nay, upon satisfying the lord for his fine due upon the descent, may surrender into the hands of the lord to whatever use he pleases. For which reasons we may conclude, that the admittance of an heir is principally for the benefit of the lord, to intitle him to his fine, and not so much necessary for the strengthening and compleating the heir’s title. Hence indeed an observation might arise, that if the benefit, which the heir is to receive by the admittance, is not equal to the charges of the fine, he will never come in and be admitted to his copyhold in court; and so the lord may be defrauded of his fine. But to this we may reply in the words of sir Edward Coke[18], “I assure myself, if it were in the election of the heir to be admitted or not to be admitted, he would be best contented without admittance; but the custom in every manor is in this point compulsory. For, either upon pain of forfeiture of their copyhold, or of incurring some great penalty, the heirs of copyholders are inforced, in every manor, to come into court and be admitted according to the custom, within a short time after notice given of their ancestor’s decease.”
↑ Litt. §. 74.
↑ Moor. 637.
↑ Cro. Jac. 568.
↑ Bro. Abr. tit. Tenant per copie. 10.
↑ Feud. l. 2. t. 2.
↑ Co. Copyh. §. 36.
↑ 2 Roll. Rep. 107.
↑ Co. Copyh. §. 39.
↑ 4 Rep. 23.
↑ Co. Copyh. 40.
↑ Co. Litt. 62.
↑ Co. Copyh. §. 40.
↑ Co. Cop. §. 41.
↑ 8 Rep. 63.
↑ 4 Rep. 27. Co. Litt. 59.
↑ 4 Rep. 27. 1 Rep. 140.
↑ 4 Rep. 23.
↑ Copyh. §. 41.
Chapter the twenty third.
Of ALIENATION by DEVISE.
THE last method of conveying real property, is by devise, or disposition contained in a man’s last will and testament. And, in considering this subject, I shall not at present enquire into the nature of wills and testaments, which are more properly the instruments to convey personal estates; but only into the original and antiquity of devising real estates by will, and the construction of the several statutes upon which that power is now founded.
It seems sufficiently clear, that, before the conquest, lands were devisable by will[1]. But, upon the introduction of the military tenures, the restraint of devising lands naturally took place, as a branch of the feodal doctrine of non-alienation without the consent of the lord[2]. And some have questioned, whether this restraint (which we may trace even from the antient Germans[3]) was not founded upon truer principles of policy, than the power of wantonly disinheriting the heir by will, and transferring the estate, through the dotage or caprice of the ancestor, from those of his blood to utter strangers. For this, it is alleged, maintained the ballance of property, and prevented one man from growing too big or powerful for his neighbours; since it rarely happens,, that the same man is heir to many others, though by art and management he may frequently become their devisee. Thus the antient law of the Athenians directed that the estate of the deceased should always descend to his children; or, on failure of lineal descendants, should go to the collateral relations: which had an admirable effect in keeping up equality and preventing the accumulation of estates. But when Solon[4] made a flight alteration, by permitting them (though only on failure of issue) to dispose of their lands by testament, and devise away estates from the collateral heir, this soon produced an excess of wealth in some, and of poverty in others: which, by a natural progression, first produced popular tumults and dissentions; and these at length ended in tyranny, and the utter extinction of liberty; which was quickly followed by a total subversion of their state and nation. On the other hand, it would now seem hard, on account of some abuses, (which are the natural consequence of free agency, when coupled with human infirmity) to debar the owner of lands from distributing them after his death, as the exigence of his family affairs, or the justice due to his creditors, may perhaps require. And this power, if prudently managed, has with us a peculiar propriety; by preventing the very evil which resulted from Solon’s institution, the too great accumulation of property: which is the natural consequence of our doctrine of succession by primogeniture, to which the Athenians were strangers. Of this accumulation the ill effects were severely felt even in the feodal times; but it should always be strongly discouraged in a commercial country, whose welfare depends on the number of moderate fortunes engaged in the extension of trade.
However this be, we find that, by the common law of England since the conquest, no estate, greater than for term of years, could be disposed of by testament[5]; except only in Kent, and in some antient burghs, and a few particular manors, where their Saxon immunities by special indulgence subsisted[6]. And though the feodal restraint on alienations by deed vanished very early, yet this on wills continued for some centuries after; from an apprehension of infirmity and imposition on the testator in extremis, which made such devises suspicious[7]. Besides, in devises there was wanting that general notoriety, and public designation of the successor, which in descents is apparent to the neighbourhood, and which the simplicity of the common law always required in every transfer and new acquisition of property.
But when ecclesiastical ingenuity had invented the doctrine of uses, as a thing distinct from the land, uses began to be devised very frequently[8], and the devisee of the use could in chancery compel it’s execution. For it is observed by Gilbert[9], that, as the popish clergy then generally fate in the court of chancery, they considered that men are most liberal when they can enjoy their possessions no longer; and therefore at their death would choose to dispose of them to those, who, according to the superstition of the times, could intercede for their happiness in another world. But, when the statute of uses[10] had annexed the possession to the use, these uses, being now the very land itself, became no longer devisable: which might have occasioned a great revolution in the law of devises, had not the statute of wills been made about five years after, viz. 32 Hen. VIII. c. 1. explained by 34 Hen. VIII. c. 5. which enacted, that all persons being seised in fee-simple (except feme-coverts, infants, idiots, and persons of nonsane memory) might by will and testament in writing devise to any other person, but not to bodies corporate, two thirds of their lands, tenements, and hereditaments, held in chivalry, and the whole of those held in socage: which now, through the alteration of tenures by the statute of Charles the second, amounts to the whole of their landed property, except their copyhold tenements.
Corporations were excepted in these statutes, to prevent the extention of gifts in mortmain; but now, by construction of the statute 43 Eliz. c. 4. it is held, that a devise to a corporation for a charitable use is valid, as operating in the nature of an appointment, rather than of a bequest. And indeed the piety of the judges hath formerly carried them great lengths in supporting such charitable uses[11]; it being held that the statute of Elizabeth, which favours appointments to charities, supersedes and repeals all former statutes[12], and supplies all defects of assurances[13]: and therefore not only a devise to a corporation, but a devise by a copyhold tenant without surrendering to the use of his will[14], and a devise (nay even a settlement) by tenant in tail without either fine or recovery, if made to a charitable use, are good by way of appointment[15].
With regard to devises in general, experience soon shewed how difficult and hazardous a thing it is, even in matters of public utility, to depart from the rules of the common law; which are so nicely constructed and so artificially connected together, that the least breach in any one of them disorders for a time the texture of the whole. Innumerable frauds and perjuries were quickly introduced by this parliamentary method of inheritance: for so loose was the construction made upon this act by the courts of law, that bare notes in the hand writing of another person were allowed to be good wills within the statute[16]. To remedy which, the statute of frauds and perjuries, 29 Car. II. c. 3. directs, that all devises of lands and tenements shall not only be in writing, but signed by the testator, or some other person in his presence, and by his express direction; and be subscribed, in his presence, by three or four credible witnesses. And a similar solemnity is requisite for revoking a devise.
In the construction of this last statute, it has been adjudged that the testator’s name, written with his own hand, at the beginning of his will, as, “I John Mills do make this my last will and testament,” is a sufficient signing, without any name at the bottom[17]; though the other is the safer way. It has also been determined, that though the witnesses must all see the testator sign, or at least acknowlege the signing, yet they may do it at different times[18]. But they must all subscribe their names as witnesses in his presence, left by any possibility they should mistake the instrument[19]. And, in a case determined about twenty years ago[20], the judges were extremely strict in regard to the credibility, or rather the competency, of the witnesses: for they would not allow any legatee, nor by consequence a creditor, where the legacies and debts were charged on the real estate, to be a competent witness to the devise, as being too deeply concerned in interest not to wish the establishment of the will; for, if it were established, he gained a security for his legacy or debt from the real estate, whereas otherwise he had no claim but on the personal assets. This determination however alarmed many purchasors and creditors, and threatened to shake most of the titles in the kingdom, that depended on devises by will. For, if the will was attested by a servant to whom wages were due, by the apothecary or attorney whose very attendance made them creditors, or by the minister of the parish who had any demand for tithes or ecclesiastical dues, (and these are the persons most likely to be present in the testator’s last illness) and if in such case the testator had charged his real estate with the payment of his debts, the whole will, and every disposition therein, so far as related to real property, were held to be utterly void. This occasioned the statute 25 Geo. II. c. 6. which restored both the competency and the credit of such legatees, by declaring void all legacies given to witnesses, and thereby removing all possibility of their interest affecting their testimony. The same statute likewise established the competency of creditors, by directing the testimony of all such creditors to be admitted, but leaving their credit (as well as that of all other witnesses) to be considered, on a view of all the circumstances, by the court and jury before whom such will shall be contested. And in a much later case[21] the testimony of three witnesses, who were creditors, was held to be sufficiently credible, though the land was charged with the payment of debts; and the reasons of the former determination were adjudged to be insufficient.
Another inconvenience was found to attend this new method of conveyance by devise; in that creditors by bond and other specialties, which affected the heir provided he had assets by descent, were now defrauded of their securities, not having the same remedy against the devisee of their debtor. To obviate which, the statute 3 & 4 W. & M. c. 14. hath provided, that all wills, and testaments, limitations, dispositions, and appointments of real estates, by tenants in fee-simple or having power to dispose by will, shall (as against such creditors only) be deemed to be fraudulent and void: and that such creditors may maintain their actions jointly against both the heir and the devisee.
A will of lands, made by the permission and under the controll of these statutes, is considered by the courts of law not so much in the nature of a testament, as of a conveyance declaring the uses to which the land shall be subject: with this difference, that in other conveyances the actual subscription of the witnesses is not required by law[22], though it is prudent for them so to do, in order to assist their memory when living and to supply their evidence when dead; but in devisees of lands such subscription is now absolutely necessary by statute, in order to identify a conveyance, which in it’s nature can never be set up till after the death of the devisor. And upon this notion, that a devise affecting lands is merely a species of conveyance, is founded this distinction between such devises and testaments of personal chattels; that the latter will operate upon whatever the testator dies possessed of, the former only upon such real estates as were his at the time of executing and publishing his will[23]. Wherefore no after-purchased lands will pass under such devise[24], unless, subsequent to the purchase or contract[25], the devisor re-publishes his will[26].
We have now considered the several species of common assurances, whereby a title to lands and tenements may be transferred and conveyed from one man to another. But, before we conclude this head, it may not be improper to take notice of a few general rules and maxims, which have been laid down by courts of justice, for the construction and exposition of them all. These are
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That the construction be favourable, and as near the minds and apparent intents of the parties, as the rules of law will admit[27]. For the maxims of law are, that “verba intentioni debent inservire;” and, “benigne interpretamur chartas propter simplicitatem laicorum.” And therefore the construction must also be reasonable, and agreeable to common understanding[28].
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That quoties in verbis nulla est ambiguitas, ibi nulla expositio contra verba fienda est[29]: but that, where the intention is clear, too minute a stress be not laid on the strict and precise signification of words; nam qui haeret in litera, haeret in cortice. Therefore, by a grant of a remainder a reversion may well pass, and e converso[30]. And another maxim of law is, that “mala grammatica non vitiat chartam;” neither false English nor bad Latin will destroy a deed[31]. Which perhaps a classical critic may think to be no unnecessary caution.
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That the constructon be made upon the entire deed, and not merely upon disjointed parts of it. “Nam ex antecedentibus et consequentibus fit optima interpretatio[32].” And therefore that every part of it, be (if possible) made to take effect; and no word but what may operate in some shape or other[33]. “Nam verba debent intelligi cum effectu, ut res magis valeat quem pereat[34].”
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That the deed be taken most strongly agalnst him that is the agent or contractor, and in favour of the other party. “Verba fortius accipiuntur contra proferentem.” For the principle of self-preservation will make men sufficiently careful, not to prejudice their own interest by the too extensive meaning of their words: and hereby all manner of deceit in any grant is avoided; for men would always affect ambiguous and intricate expressions, provided they were afterwards at liberty to put their own construction upon them. But here a distinction must be taken between an indenture and a deed poll: for the words of an indenture, executed by both parties, are to be considered as the words of them both; for, though delivered as the words of one party, yet they are not his words only, but the other party hath given his consent to every one of them. But in a deed poll, executed only by the grantor, they are the words of the grantor only, and shall be taken most strongly against him[35]. However, this, being a rule of some strictness and rigor, is the last to be resorted to, and is never to be relied upon, but where all other rules of exposition fail[36].
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That, if the words will bear two senses, one agreeable to, and another against law; that sense be preferred, which is most agreeable thereto[37]. As if tenant in tail lets a lease for life generally, it shall be construed for his own life only, for that stands with the law; and not for the life of the lesse, which is beyond his power to grant.
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That, in a deed, if there be two clauses so totally repugnant to each other, that they cannot stand together, the first shall be received and the latter rejected[38]: wherein it differs from a will; for there, of two such repugnant clauses the latter shall stand[39]. Which is owing to the different natures of the two instruments; for the first deed, and the last will are always most available in law. Yet in both cases we should rather attempt to reconcile them[40].
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That a devise be most favourably expounded, to pursue if possible the will of the devisor, who for want of advice or learning may have omitted the legal and proper phrases. And therefore many times the law dispenses with the want of words in devises, that are absolutely requisite in all other instruments. Thus a fee may be conveyed without words of inheritance[41]; and an estate-tail without words of procreation[42]. By a will also an estate may pass by mere implication, without any express words to direct it’s course. As, where A devises lands to his heir at law, after the death of his wife; here, though no estate is given to the wife in express terms, yet she shall have an estate for life by implication[43]; for the intent of the testator is clearly to postpone the heir till after her death; and, if she does not take it, nobody else can. So also, where a devise is of black-acre to A and of white-acre to B in tail, and if they both die without issue, then to C in fee: here A and B have cross remainders by implication, and on the failure of either’s issue, the other or his issue shall take the whole; and C’s remainder over shall be postponed till the issue of both shall fail[44]. But, to avoid confusion, no cross remainders are allowed between more than two devisees[45]: and, in general, where any implications are allowed, they must be such as are necessary (or at least highly probable) and not merely possible implications[46]. And herein there is no distinction between the rules of law and of equity; for the will, being considered in both courts in the light of a limitation to uses[47], is construed in each with equal favour and benignity, and expounded rather on it’s own particular circumstances, than by any general rules of positive law.
And thus we have taken a transient view, in this and the three preceding chapters, of a very large and diffusive subject, the doctrine of common assurances: which concludes our observations on the title to things real, or the means by which they may be reciprocally lost and acquired. We have before considered the estates which may be had in them, with regard to their duration or quantity of interest, the time of their enjoyment, and the number and connexions of the persons entitled to hold them; we have examined the tenures, both antient and modern, whereby those estates have been, and are now, holden: and have distinguished the object of all these enquiries, namely, things real, into the corporeal or substantial, and incorporeal or ideal kind; and have thus considered the rights of real property in every light, wherein they are contemplated by the laws of England. A system of laws, that differs much from every other system, except those of the same feodal origin, in it’s notions and regulations of landed estates; and which therefore could in this particular be very seldom compared with any other.
The subject, which has thus employed our attention, is of very extensive use, and of as extensive variety. And yet, I am afraid, it has afforded the student less amusement and pleasure in the pursuit, than the matters discussed in the preceding volume. To say the truth, the vast alterations which the doctrine of real property has undergone from the conquest to the present time; the infinite determinations upon points that continually arise, and which have been heaped one upon another for a course of seven centuries, without any order or method; and the multiplicity of acts of parliament which have amended, or sometimes only altered, the common law; these cases have made the study of this branch of our national jurisprudence a little perplexed and intricate. It hath been my endeavour principally to select such parts of it, as were of the most general use, where the principles were the most simple, the reasons of them the most obvious, and the practice the least embarrassed. Yet I cannot presume that I have always been thoroughly intelligible to such of my readers, as were before strangers even to the very terms of art, which I have been obliged to make use of: though, whenever those have first occurred, I have generally attempted a short explication of their meaning. These are indeed the more numerous, on account of the different languages which our law has at different periods been taught to speak; the difficulty arising from which will insensibly diminish by use and familiar acquaintance. And therefore I shall close this branch of our enquiries with the words of sir Edward Coke[48]: “albeit the student shall not at any one day, do what he can, reach to the full meaning of all that is here laid down, yet let him no way discourage himself, but proceed; for on some other day, in some other place,” (or perhaps upon a second perusal of the same) “his doubts will be probably removed.”
↑ Wright of tenures. 172.
↑ See pag. 57.
↑ Tacit. de mor. Germ. c. 21.
↑ Plutarch. in vita Solon.
↑ 2 Inst. 7.
↑ Litt. §. 167. 1 Inst. 111.
↑ Glanv. l. 7. c. 1.
↑ Plowd. 414.
↑ on devises. 7.
↑ 27 Hen. VIII. c. 10.
↑ Ch. Prec. 272.
↑ Gilb. Rep. 45. 1 P. Wms. 248.
↑ Duke’s charit. uses. 84.
↑ Moor. 890.
↑ 2 Vern. 453. Ch. Prec. 16.
↑ Dyer. 72. Cro. Eliz. 100.
↑ 3 Lev. 1.
↑ Freem. 486. 2 Ch. Cas. 109. Pr. Ch. 185.
↑ 1 P. Wms. 740.
↑ Stra. 1253.
↑ M. 31 Geo. II. 4 Burr. I. 430.
↑ See pag. 307.
↑ 1 P. Wms. 575.
↑ Moor. 255. 11 Mod. 127.
↑ 1 Ch. Cas. 39. 2 Ch. Cas. 144.
↑ Salk. 238.
↑ And. 60.
↑ 1 Bulstr. 175. Hob. 304.
↑ 2 Saund. 157.
↑ Hob. 27.
↑ 10 Rep. 133. Co. Litt. 223. 2 Show. 334.
↑ 1 Bulstr. 101.
↑ 1 P. Wms. 457.
↑ Plowd. 156.
↑ Ibid. 134.
↑ Bacon’s Elem. c. 3.
↑ Co. Litt. 43.
↑ Hardr. 94.
↑ Co. Litt. 112.
↑ Cro. Eliz. 420. 1 Vern. 30.
↑ See pag. 108.
↑ See pag. 115.
↑ 1 Ventr. 376.
↑ Freem. 484.
↑ Cro. Jac. 655. 1 Ventr. 224. 2 Show. 139.
↑ Vaugh. 262.
↑ Fitzg. 236. 11 Mod. 153.
↑ Proeme to 1 Inst.
Chapter the twenty fourth.
Of Things Personal.
Under the name of things personal are included all sorts of things moveable, which may attend a man’s person wherever he goes; and therefore, being only the objects of the law while they remain within the limits of it’s jurisdiction, and being also of a perishable quality, are not esteemed of so high a nature, nor paid so much regard to by the law, as things that are in their nature more permanent and immoveable, as lands, and houses, and the profits issuing thereout. These being constantly within the reach, and under the protection of the law, were the principal favourites of our first legislators: who took all imaginable care in ascertaining the rights, and directing the disposition, of such property as they imagined to be lasting, and which would answer to posterity the trouble and pains that their ancestors employed about them; but at the same time entertained a very low and contemptuous opinion of all personal estate, which they regarded only as a transient commodity. The amount of it indeed was, comparatively, very trifling, during the scarcity of money and the ignorance of luxurious refinements, which prevailed in the feodal ages. Hence it was, that a tax of the fifteenth, tenth, or sometimes a much larger proportion, of all the moveables of the subject, was frequently laid without scruple, and is mentioned with much unconcern by our antient historians, though now it would justly alarm our opulent merchants and stockholders. And hence likewise may be derived the frequent forfeitures inflicted by the common law, of all a man’s goods and chattels, for misbehaviours and inadvertencies that at present hardly seem to deserve so severe a punishment. Our antient law-books, which are founded upon the feodal provisions, do not therefore often condescend to regulate this species of property. There is not a chapter in Britton or the mirroir, that can fairly be referred to this head; and the little that is to be found in Glanvil, Bracton, and Fleta, seems principally borrowed from the civilians. But of later years, since the introduction and extension of trade and commerce, which are entirely occupied in this species of property, and have greatly augmented it’s quantity and of course it’s value, we have learned to conceive different ideas of it. Our courts now regard a man’s personalty in a light nearly, if not quite, equal to his realty: and have adopted a more enlarged and less technical mode of considering the one than the other; frequently drawn from the rules which they found already established by the Roman law, wherever those rules appeared to be well-grounded and apposite to the case in question, but principally from reason and convenience, adapted to the circumstances of the times; preserving withal a due regard to antient usages, and a certain feodal tincture, which is still to be found in some branches of personal property.
But things personal, by our law, do not only include things moveable, but also something more. The whole of which is comprehended under the general name of chattels, catalla; which, sir Edward Coke says[1], is a French word signifying goods. And this is true, if understood of the Norman dialect; for in the grand coustumier[2], we find the word chattels used and set in opposition to a fief or feud: so that not only goods, but whatever was not a feud, were accounted chattels. And it is, I apprehend, in the same large, extended, negative sense, that our law adopts it; the idea of goods, or moveables only, being not sufficiently comprehensive to take in every thing that our law considers as a chattel interest. For since, as the commentator on the coustumier observes, there are two requisites to make a fief or heritage, duration as to time, and immobility with regard to place; whatever wants either of these qualities is not, according to the Normans, an heritage or fief[3]; or, according to us, is not a real estate: the consequence of which in both laws is, that it must be a personal estate, or chattel.
Chattels therefore are distributed by the law into two kinds; chattels real, and chattels personal.
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Chattels real, saith sir Edward Coke[4], are such as concern, or savour of, the realty; as terms for years of land, wardships in chivalry (while the military tenures subsisted) the next presentation to a church, estates by statute-merchant, statute-staple, elegit, or the like; of all which we have already spoken. And these are called real chattels, as being interests issuing out of, or annexed to real estates: of which they have one quality, viz. immobility, which denominates them real; but want the other, viz. a sufficient, legal, indeterminate duration: and this want it is, that constitutes them chattels. The utmost period for which they can last is fixed and determinate, either for such a space of time certain, or till such a particular sum of money be raised out of such a particular income; so that they are not equal in the eye of the law to the lowest estate of freehold, a lease for another’s life: their tenants were considered, upon feodal principles, as merely bailiffs or farmers; and the tenant of the freehold might at any time have destroyed their interest, till the reign of Henry VIII.[5] A freehold, which alone is a real estate, and seems (as has been said) to answer to the fief in Normandy, is conveyed by corporal investiture and livery of seisin; which gives the tenant so strong a hold of the land, that it never after can be wrested from him during his life, but by his own act, of voluntary transfer or of forfeiture; or else by the happening of some future contingency, as in estates pur auter vie, and the determinable freeholds mentioned in a former chapter[6]. And even these, being of an uncertain duration, may by possibility last for the owner’s life; for the law will not presuppose the contingency to happen before it actually does, and till then the estate is to all intents and purposes a life estate, and therefore a freehold interest. On the other hand, a chattel interest in lands, which the Normans put in opposition to fief, and we to freehold, is conveyed by no seisin or corporal investiture, but the possession is gained by the mere entry of the tenant himself; and it is sure to expire at a time prefixed and determined, if not sooner. Thus a lease for years must necessarily fail at the end and completion of the term; the next presentation to a church is satisfied and gone the instant it comes into possession, that is, by the first avoidance and presentation to the living; the conditional estates by statutes and elegit are determined as soon as the debt is paid; and so guardianships in chivalry were sure to expire the moment that the heir came of age. And if there be any other chattel real, it will be found to correspond with the rest in this essential quality, that it’s duration is limited to a time certain, beyond which it cannot subsist.
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Chattels personal are, properly and strictly speaking, things moveable; which may be annexed to or attendant on the person of the owner, and carried about with him from one part of the world to another. Such are animals, household-stuff, money, jewels, corn, garments, and every thing else that can properly be put in motion, and transferred from place to place. And of this kind of chattels it is, that we are principally to speak in the remainder of this book; having been unavoidably led to consider the nature of chattels real, and their incidents, in the former chapters which were employed upon real estates: that kind of property being of a mongrel amphibious nature, originally endowed with one only of the characteristics of each species of things; the immobility of things real, and the precarious duration of things personal.
Chattel interests being thus distinguished and distributed, it will be proper to consider, first, the nature of that property, or dominion, to which they are liable; which must be principally, nay solely, referred to personal chattels: and, secondly, the title to that property, or how it may be lost and acquired. Of each of these in it’s order.
↑ 1 Inst. 118.
↑ c. 87.
↑ Cateux sont meubles et immeubles: sicomme vrais meubles sont qui transporter se peuvent; et ensuivir le corps; immeubles sont choses qui ne peuvent emsuivir le corps, niestre transportees, et tout ce qui n’est point en heritage. LL. Will. Nothi. c. 4. apud Dufresne. II. 409.
↑ 1 Inst. 118.
↑ See pag. 141, 142.
↑ pag. 121.
Chapter the twenty fifth.
Of PROPERTY in THINGS PERSONAL.
PROPERTY, in chattels personal, may be either in possession; which is where a man hath not only the right to enjoy, but hath the actual enjoyment of, the thing: or else it is in action; where a man hath only a bare right, without any occupation or enjoyment. And of these the former, or property in possession, is divided into two sorts, an absolute and a qualified property.
I. First then of property in possession absolute; which is where a man hath, solely and exclusively, tle right, and also the occupation, of any moveable chattels; so that they cannot be transferred from him, or cease to be his, without his own act or default. Such may be all inanimate things, as goods, plate, money, jewels, implements of war, garments, and the like: such also may be all vegetable productions, as the fruit or other parts, when severed from the plant, or the whole plant itself, when severed from the ground; none of which can be moved out of the owner’s possession without his own act or consent, or at least without doing him an injury, which it is the business of the law to prevent or remedy. Of these therefore there remains little to be said.
But with regard to animals, which have in themselves a principle and power of motion, and (unless particularly confined) can convey themselves from one part of the world to another, there is a great difference made with respect to their several classes, not only in our law, but in the law of nature and of all civilized nations. They are distinguished into such as are domitae, and such as are ferae naturae; some being of a tame, and others of a wild disposition. In such as are of a nature tame and domestic, (as horses, kine, sheep, poultry, and the like) a man may have as absolute a property as in any inanimate beings; because these continue perpetually in his occupation, and will not stray from his house or person, unless by accident or fraudulent enticement, in either of which cases the owner does not lose his property[1]: in which our law agrees with the laws of France and Holland[2]. The stealing, or forcible abduction, of such property as this, is also felony; for these are things of intrinsic value, serving for the food of man, or else for the uses of husband-dry[3]. But in animals ferae naturae a man can have no absolute property.
Of all tame and domestic animals, the brood belongs to the owner of the dam or mother; the English law agreeing with the civil, that “partus sequitur ventrem” in the brute creation, though for the most part in the human species it disallows that maxim. And therefore in the laws of England[4], as well as Rome[5], “si equam meam equus tuus praegnantem fecerit, non est tuum sed meum quod natum est.” And, for this, Puffendorf[6] gives a sensible reason: not only because the male is frequently unknown; but also because the dam, during the time of her pregnancy, is almost useless to the proprietor, and must be maintained with greater expense and care: wherefore as her owner is the loser by her pregnancy, he ought to be the gainer by her brood. An exception to this rule is in the case of young cygnets; which belong equally to the owner of the cock and hen, and shall be divided between them[7]. But here the reasons of the general rule cease, and “cessante ratione cessat et ipsa lex:” for the male is well known, by his constant association with the female; and for the same reason the owner of the one doth not suffer more disadvantage, during the time of pregnancy and nurture, than the owner of the other.
II. Other animals, that are not of a tame and domestic nature, are either not the objects of property at all, or else fall under our other division, namely, that of qualified, limited, or special property: which is such as is not in it’s nature permanent, but may sometimes subsist, and at other times not subsist. In discussing which subject, I shall in the first place shew, how this species of property may subsist in such animals as are ferae naturae, or of a wild nature; and then, how it may subsist in any other things, when under particular circumstances.
First then, a man may be invested with a qualified, but not an absolute, property in all creatures that are ferae naturae, either per industriam, propter impotentiam, or propter privilegium.
- A qualified property may subsist in animals ferae naturae, per industriam hominis: by a man’s reclaiming and making them tame by art, industry, and education; or by so confining them within his own immediate power, that they cannot escape and use their natural liberty. And under this head some writers have ranked all the former species of animals we have mentioned, apprehending none to be originally and naturally tame, but only made so by art and custom: as, horses, swine, and other cattle; which, if originally left to themselves, would have chosen to rove up and down, seeking their food at large, and are only made domestic by use and familiarity, and are therefore, say they, called mansueta, quasi manui assueta. But however well this notion may be founded, abstractedly considered, our law apprehends the mod obvious distinction to be, between such animals as we generally see tame, and are therefore seldom, if ever, found wandering at large, which it calls domitae naturae; and such creatures as are usually found at liberty, which are therefore supposed to be more emphatically ferae naturae, though it may happen that the latter shall be sometimes tamed and confined by the art and industry of man. Such as are deer in a park, hares or rabbets in an enclosed warren, doves in a dovehouse, pheasants or partridges in a mew, hawks that are fed and commanded by their owner, and fish in a private pond or in trunks. These are no longer the property of a man, than while they continue in his keeping or actual possession: but, if at any time they regain their natural liberty, his property instantly ceases; unless they have animum revertendi, which is only to be known by their usual custom of returning[8]. A maxim which is borrowed from the civil law[9]; “revertendi animum videntur desinere habere tunc, cum revertendi consuetudinem deseruerint.” The law therefore extends this possession farther than the mere manual occupation; for my tame hawk that is pursuing his quarry in my presence, though he is at liberty to go where he pleases, is nevertheless my property; for he hath animum revertendi. So are my pigeons, that are flying at a distance from their home (especially of the carrier kind) and likewise the deer that is chased out of my park or forest, and is instantly pursued by the keeper or forester: all which remain still in my possession, and I still preserve my qualified property in them. But if they stray without my knowlege, and do not return in the usual manner, it is then lawful for any stranger to take them[10]. But if a deer, or any wild animal reclaimed, hath a collar or other mark put upon him, and goes and returns at his pleasure; or if a wild swan is taken, and marked and turned loose in the river, the owner’s property in him still continues, and it is not lawful for any one else to take him[11]: but otherwise, if the deer has been long absent without returning, or the swan leaves the neighbourhood. Bees also are ferae naturae; but, when hived and reclaimed, a man may have a qualified property in them, by the law of nature, as well as by the civil law[12]. And to the same purpose, not to say in the same words, with the civil law, speaks Bracton[13]: occupation, that is, hiving or including them, gives the property in bees; for, though a swarm lights upon my tree, I have no more property in them till I have hived them, than I have in the birds which make their nests thereon; and therefore if another hives them, he shall be their proprietor: but a swarm, which flie from and out of my hive, are mine so long as I can keep them in fight, and have power to pursue them and in these circumstances no one else is intitled to take them. But it hath been also said[14], that with us the only ownership in bees is ratione soli; and the charter of the forest[15], which allows every freeman to be entitled to the honey found within his own woods, affords great countenance to this doctrine, that a qualified property may be had in bees, in consideration of the property of the soil whereon they are found.
In all these creatures, reclaimed from the wildness of their nature, the property is not absolute, but defeasible: a property, that may be destroyed if they resume their antient wildness, and are found at large. For if the pheasants escape from the mew, or the fishes from the trunk, and are seen wandering at large in their proper element, they become ferae naturae again; and are free and open to the first occupant that has ability to seise them. But while they thus continue my qualified or defeasible property, they are as much under the protection of the law, as if they were absolutely and indefeasibly mine: and an action will lie against any man that detains them from me, or unlawfully destroys them. It is also as much felony by common law to steal such of them as are fit for food, as it is to steal tame animals[16]: but not so, if they are only kept for pleasure, curiosity, or whim, as dogs, bears, cats, apes, parrots, and finging birds[17]; because their value is not intrinsic, but depending only on the caprice of the owner[18]: though it is such an invasion of property as may amount to a civil injury, and be redressed by a civil action[19]. Yet to steal a reclaimed hawk is felony both by common law and statute[20]; which seems to be a relic of the tyranny of our antient sportsmen. And, among our elder ancestors the antient Britons, another species of reclaimed animals, viz. cats, were looked upon as creatures of intrinsic value; and the killing or stealing one was a grievous crime, and subjected the offender to a fine; especially if it belonged to the king’s houshold, and were the custos horrei regii, for which there was a very peculiar forfeiture[21]. And thus much of qualified property in wild animals, reclaimed per industriam.
-
A qualified property may also subsist with relation to animals ferae naturae, ratione impotentiae, on account of their own inability. As when hawks, herons, or other birds build in my trees, or coneys or other creatures make their nests or burrows in my land, and have young ones there; I have a qualified property in those young ones, till such time as they can fly, or run away, and then my property expires[22]: but, till then, it is in some cases trespass, and in others felony, for a stranger to take them away[23]. For here, as the owner of the land has it in his power to do what he pleases with them, the law therefore vests a property in him of the young ones, in the same manner as it does of the old ones if reclaimed and confined: for these cannot through weakness, any more than the others through restraint, use their natural liberty and forsake him.
-
A man may, lastly, have a qualified property in animals ferae naturae, propter privilegium: that is, he may have the privilege of hunting, taking, and killing them, in exclusion of other persons. Here he has a transient property in these animals, usually called game, so long as they continue within his liberty[24]; and may restrain any stranger from taking them therein: but the instant they depart into another liberty, this qualified property ceases. The manner, in which this privilege is acquired, will be shewn in a subsequent chapter.
The qualified property which we have hitherto considered, extends only to animals ferae naturae, when either reclaimed, impotent, or privileged. Many other things may also be the objects of qualified property. It may subsist in the very elements, of fire or light, of air, and of water. A man can have no absolute permanent property in these, as he may in the earth or land; since these are of a vague and fugitive nature, and therefore can admit only of a precarious and qualified ownership, which lasts so long as they are in actual use and occupation, but no longer. If a man disturbs another, and deprives him of the lawful enjoyment of these; if one obstructs another’s antient windows[25], corrupts the air of his house or gardens[26], fouls his water[27], or unpens and lets it out, or if he diverts an antient watercourse that used to run to the other’s mill or meadow[28]; the law will animadvert hereon as an injury, and protect the party injured in his possession. But the property in them ceases the instant they are out of possession: for, when no man is engaged in their actual occupation, they become again common, and every man has an equal right to appropriate them to his own use.
These kinds of qualification in property depend upon the peculiar circumstances of the subject matter, which is not capable of being under the absolute dominion of any proprietor. But property may also be of a qualified or special nature, on account of the peculiar circumstances of the owner, when the thing itself is very capable of absolute ownership. As in case of bailment, or delivery, of goods to another person for a particular use; as to a carrier to convey to London, to an innkeeper to secure in his inn, or the like. Here there is no absolute property in either the bailor or the bailee, the person delivering, or him to whom it is delivered: for the bailor hath only the right, and not the immediate possession; the bailee hath the possession, and only a temporary right. But it is a qualified property in them both; and each of them is entitled to an action, in case the goods be damaged or taken away: the bailee on account of his immediate possession; the bailor, because the possession of the bailee is, mediately, his possession also[29]. So also in case of goods pledged or pawned upon condition, either to repay money or otherwise; both the pledgor and pledgee have a qualified, but neither of them an absolute, property therein: the pledgor’s property is conditional, and depends upon the performance of the condition of re-payment, &c; and so too is that of the pledgee, which depends upon it’s non-performance[30]. The same may be said of goods distreined for rent, or other cause of distress: which are in the nature of a pledge, and are not, at the first taking, the absolute property of either the distreinor, or party distreined; but may be redeemed, or else forfeited, by the subsequent conduct of the latter. But a servant, who hath the care of his master’s goods or chattels, as a butler of plate, a shepherd of sheep, and the like, hath not any property or possession either absolute or qualified, but only a mere charge or oversight[31].
Having thus considered the several divisions of property in possession, which subsists there only, where a man hath both the right and alio the occupation of the thing; we will proceed next to take a short view of the nature of property in action, or such where a man hath not the occupation, but merely a bare right to occupy the thing in question; the possession whereof may however be recovered by a suit or action at law: from whence the thing fo recoverable is called a thing, or chose, in action[32]. Thus money due on a bond is a chose in action; for a property in the debt vests at the time of forfeiture mentioned in the obligation, but there is no possession till recovered by course of law. If a man promises, or covenants with me, to do any act, and fails in it, whereby I suffer damage; the recompense for this damage is a chose in action: for though a right to some recompense vests in me, at the time of the damage done, yet what and how large such recompense shall be, can only be ascertained by verdict; and the possession can only be given me by legal judgment and execution. In the former of these cases the student will observe, that the property, or right of action, depends upon an express contract or obligation to pay a stated sum: and in the latter it depends upon an implied contract, that if the covenantor does not perform the act he engaged to do, he shall pay me the damages I sustain by this breach of covenant. And hence it may be collected, that all property in action depends entirely upon contracts, either express or implied; which are the only regular means of acquiring a chose in action, and of the nature of which we shall discourse at large in a subsequent chapter.
At present we have only to remark, that upon all contracts or promises, either express or implied, and the infinite variety of cases into which they are and may be spun out, the law gives an action of some sort or other to the party injured in case of non-performance; to compel the wrongdoer to do justice to the party with whom he has contracted, and, on failure of performing the identical thing he engaged to do, to render a satisfaction equivalent to the damage sustained. But while the thing, or it’s equivalent, remains in suspense, and the injured party has only the right and not the occupation, it is called a chose in action; being a thing rather in potentia than in esse: though the owner may have as absolute a property of such things in action, as of things in possession.
And, having thus distinguished the different degree or quantity of dominion, or property to which things personal are subject, we may add a word or two concerning the time of their enjoyment, and the number of their owners; in conformity to the method before observed in treating of the property of things real.
First, as to the time of enjoyment. By the rules of the antient common law, there could be no future property, to take place in expectancy, created in personal goods and chattels; because, being things transitory, and by many accidents subject to be lost, destroyed, or otherwise impaired, and the exigencies of trade requiring also a frequent circulation thereof, it would occasion perpetual suits and quarrels, and put a stop to the freedom of commerce, if such limitations in remainder were generally tolerated and allowed. But yet in last wills and testaments such limitations of personal goods and chattels, in remainder after a bequest for life, were permitted[33]: though originally that indulgence was only shewn, when merely the use of the goods, and not the goods themselves, was given to the first legatee[34]; the property being supposed to continue all the time in the executor of the devisor. But now that distinction is disregarded[35]: and therefore if a man either by deed or will limits his books or furniture to A for life, with remainder over to B, this remainder is good. But, where an estate-tail in things personal is given to the first or any subsequent possessor, it vests in him the total property, and no remainder over shall be permitted on such a limitation[36]. For this, if allowed, would tend to a perpetuity, as the devisee or grantee in tail of a chattel has no method of barring the entail; and therefore the law vests in him at once the entire dominion of the goods, being analogous to the fee-simple which a tenant in tail may acquire in a real estate.
Next, as to the number of owners. Things personal may belong to their owners, not only in severalty, but also in joint-tenancy, and in common, as well as real estates. They cannot indeed be vested in coparcenary; because they do not descend from the ancestor to the heir, which is necessary to constitute coparceners. But if a horse, or other personal chattel, be given to two or more, absolutely, they are joint-tenants hereof; and, unless the jointure be severed, the same doctrine of survivorship shall take place as in estates of lands and tenements[37]. And, in like manner, if the jointure be severed, as by either of them selling his share, the vendee and the remaining part-owner shall be tenants in common, without any jus accrescendi or survivorship[38]. So also if 100𝑙. be given by will to two or more, equally to be divided between them, this makes them tenants in common[39]; as, we have formerly seen[40], the same words would have done, in regard to real estates. But, for the encouragement of husbandry and trade, it is held that a stock on a farm, though occupied jointly, and also a stock used in a joint undertaking, by way of partnership in trade, shall always be considered as common and not as joint property; and there shall be no survivorship therein[41].
↑ 2 Mod. 319.
↑ Vinn. in Inst. l. 2. tit. 1. §. 15.
↑ 1 Hal. P. C. 511, 512.
↑ Bro. Abr. tit. Profertie. 29.
↑ Ff. 6. 1. 5.
↑ L. of N. l. 4. c. 7.
↑ 7 Rep. 17.
↑ Bracton. l. 2. c. 1. 7 Rep. 17.
↑ Inst. 2. 1. 15.
↑ Finch. L. 177.
↑ Crompt. of courts. 167. 7 Rep. 16.
↑ Puff. l. 4. c. 6. §. 5. Inst. 2. 1. 14.
↑ l. 2. c. 1. §. 3.
↑ Bro. Abr. tit. Propertie. 37. cites 43 Edw. III. 24.
↑ 9 Hen. III. c. 13.
↑ 1 Hal. P. C. 512.
↑ Lamb. Eiren. 275.
↑ 7 Rep. 18. 3 Inst. 109.
↑ Bro. Abr. tit. Trespass. 407.
↑ 1 Hal. P. C. 512. 1 Hawk. P. C. c. 33.
↑ Si quis felem, horrei regii custodem, occiderit vel furto abstulerit, felis summa cauda suspendatur, capite aream attingente, et in eam grana tritici effundantur, usquedum summitas caudae tritico co-operiatur.” Wotton. LL. Wall. l. 3. c. 5. §. 5. An amercement similar to which, sir Edward Coke tells us (7 Rep. 18.) there antiently was for stealing swans; only suspending them by the beak, instead of the tail.
↑ Carta de forest. 9 Hen. III. c. 13.
↑ 7 Rep. 17. Lamb. Eiren. 274.
↑ Cro. Car. 554. Mar. 48. 5 Mod. 376. 12 Mod. 144.
↑ 9 Rep. 58.
↑ Ibid. 59. Lutw. 92.
↑ 9 Rep. 59.
↑ 1 Leon. 273. Skinn. 389.
↑ 1 Roll. Abr. 607.
↑ Cro. Jac. 245.
↑ 3 Inst. 108.
↑ The same idea, and the same denomination, of property prevailed in the civil law. “Rem in bonis nostris habere intelligimur, quotiens ad reciperandam eam actionem habeamus.” (Ff. 41. 1. 52.) And again; “aeque bonis adnumerabitur etiam, si quid est in actionibus, petitionibus, persecutionibus. Nam et haec in bonis esse videntur.” (Ff. 50. 16. 49)
↑ 1 Equ. Cas. abr. 360.
↑ Mar. 106.
↑ 2 Freem. 206.
↑ 1 P. Wms. 290.
↑ Litt. §. 282. 1 Vern. 482.
↑ Litt. §. 321.
↑ 1 Equ. Cas. abr. 292.
↑ pag. 193.
↑ 1 Vern. 217. Co. Litt. 182.
Chapter the second.
Of Redress by the mere operation of Law.
The remedies for private wrongs, which are effected by the mere operation of law, will fall within a very narrow compass: there being only two instances of this sort that at present occur to my recollection; the one that of retainer, where a creditor is made executor or administrator to his debtor; the other, in the case of what the law calls a remitter.
I. If a person indebted to another makes his creditor or debtee his executor, or if such creditor obtains letters of administration to his debtor; in these cases the law gives him a remedy for his debt, by allowing him to retain so much as will pay himself, before any other creditors whose debts are of equal degree[1]. This is a remedy by the mere act of law, and grounded upon this reason; that the executor cannot, without an apparent absurdity, commence a suit against himself as representative of the deceased, to recover that which is due to him in his own private capacity: but, having the whole personal estate in his hands, so much as is sufficient to answer his own demand is, by operation of law, applied to that particular purpose. Else, by being made executor, he would be put in a worse condition than all the rest of the world besides. For, though a ratable payment of all the debts of the deceased, in equal degree, is clearly the most equitable method, yet as every scheme for a proportionable distribution of the assets among all the creditors hath been hitherto found to be impracticable, and productive of more mischiefs than it would remedy; so that the creditor who first commences his suit is intitled to a preference in payment; it follows, that as the executor can commence no suit, he must be paid the last of any, and of course must lose his debt, in case the estate of his testator should prove insolvent, unless he be allowed to retain it. The doctrine of retainer is therefore the necessary consequence of that other doctrine of the law, the priority of such creditor who first commences his action. But the executor shall not retain his own debt, in prejudice to those of a higher degree; for the law only puts him in the same situation, as if he had sued himself as executor, and recovered his debt; which he never could be supposed to have done, while debts of a higher nature subsisted. Neither shall one executor be allowed to retain his own debt, in prejudice to that of his co-executor in equal degree; but both shall be discharged in proportion[2]. Nor shall an executor of his own wrong be in any case permitted to retain[3].
II. Remitter is where he, who hath the true property or jus proprietatis in lands, but is out of possession thereof and hath no right to enter without recovering possession in an action, hath afterwards the freehold cast upon him by some subsequent, and of course defective, title: in this case he is remitted, or sent back, by operation of law, to his antient and more certain title[4]. The right of entry, which he hath gained by a bad title, shall be ipso facto annexed to his own inherent good one; and his defeasible estate shall be utterly defeated and annulled, by the instantaneous act of law, without his participation or consent[5]. As if A disseises B, that is, turns him out of possession, and dies leaving a son C; hereby the estate descends to C the son of A, and B is barred from entering thereon till he proves his right in an action: now, if afterwards C the heir of the disseisor makes a lease for life to D, with remainder to B the disseisee for life, and D dies; hereby the remainder accrues to B, the disseisee: who thus gaining a new freehold by virtue of the remainder, which is a bad title, is by act of law remitted, or in of his former and surer estate[6]. For he hath hereby gained a new right of possession, to which the law immediately annexes his antient right of propriety.
If the subsequent estate, or right of possession, be gained by a man’s own act or consent, as by immediate purchase being of full age, he shall not be remitted. For the taking such subsequent estate was his own folly, and shall be looked upon as a waiver of his prior right[7]. Therefore it is to be observed, that to every remitter there are regularly these incidents; an antient right, and a new defeasible estate of freehold, uniting in one and the same person; which defeasible estate must be cast upon the tenant, not gained by his own act or folly. The reason given by Littleton[8], why this remedy, which operates silently and by the mere act of law, was allowed, is somewhat similar to that given in the preceding article; because otherwise he who hath right would be deprived of all remedy. For as he himself is the person in possession of the freehold, there is no other person against whom he can bring an action, to establish his prior right. And for this cause the law doth adjudge him in by remitter; that is, in such plight as if he had lawfully recovered the same land by suit. For, as lord Bacon observes[9], the benignity of the law is such, as when, to preserve the principles and grounds of law, it depriveth a man of his remedy without his own fault, it will rather put him in a better degree and condition than in a worse. Nam quod remedio destituitur, ipsa re valet; si culpa absit. But there shall be no remitter to a right, for which the party has no remedy by action[10]: as if the issue in tail be barred by the fine or warranty of his ancestor, and the freehold is afterwards cast upon him; he shall not be remitted to his estate tail[11]: for the operation of the remitter is exactly the same, after the union of the two rights, as that of a real action would have been before it. As therefore the issue in tail could not by any action have recovered his antient estate, he shall not recover it by remitter.
And thus much for these extrajudicial remedies, as well for real as personal injuries, which are furnished by the law, where the parties are so peculiarly circumstanced, as not to be able to apply for redress in the usual and ordinary methods to the courts of public justice.
↑ 1. Roll. Abr. 922. Plowd. 543.
↑ Viner. Abr. t. Executors. D. 2.
↑ 5. Rep. 30.
↑ Litt. §. 659.
↑ Co. Litt. 358. Cro. Jac. 439.
↑ Finch. L. 194. Litt. §. 683
↑ Co. Litt. 348. 350.
↑ §. 661.
↑ Elem. c. 9.
↑ Co. Litt. 349.
↑ Moor. 115. 1 And. 286.
Chapter the twelfth.
Of Trespass.
In the two preceding chapters we have considered such injuries to real property, as consisted in an ouster, or amotion of the possession. Those which remain to be discussed are such as may be offered to a man’s real property without any amotion from it.
The second species therefore of real injuries, or wrongs that affect a man’s lands, tenements, or hereditaments, is by trespass. Trespass, in it’s largest and most extensive sense, signifies any transgression or offence against the law of nature, of society, or of the country in which we live; whether it relates to a man’s person, or his property. Therefore beating another is a trespass; for which (as we have formerly seen) an action of trespass vi et armis in assault and battery will lie: taking or detaining a man’s goods are respectively trespasses; for which an action of trespass vi et armis, or on the case in trover and conversion, is given by the law: so also non-performance of promises or undertakings is a trespass, upon which an action of trespass on the case in assumpsit is grounded: and, in general, any misfeasance, or act of one man whereby another is injuriously treated or damnified, is a transgression, or trespass in it’s largest sense; for which we have already seen[1] that whenever the act itself is directly and immediately injurious to the person or property of another, and therefore necessarily accompanied with some force, an action of trespass vi et armis will lie; but, if the injury is only consequential, a special action of trespass on the case may be brought.
But in the limited and confined sense, in which we are at present to consider it, it signifies no more than an entry on another man’s ground without a lawful authority, and doing some damage, however inconsiderable, to his real property. For the right of meum and tuum, or property, in lands being once established, it follows as a necessary consequence, that this right must be exclusive; that is, that the owner may retain to himself the sole use and occupation of his soil: every entry therefore thereon without the owner’s leave, and especially if contrary to his express order, is a trespass or transgression. The Roman laws seem to have made a direct prohibition necessary, in order to constitute this injury: “qui alienum fundum ingreditur, potest a domino, si is praeviderit, prohiberi ne ingrediatur[2].” But the law of England, justly considering that much inconvenience may happen to the owner, before he has an opportunity to forbid the entry, has carried the point much farther, and has treated every entry upon another’s lands, (unless by the owner’s leave, or in some very particular cases) as an injury or wrong, for satisfaction of which an action of trespass will lie; but determines the quantum of that satisfaction, by considering how far the offence was wilful or inadvertent, and by estimating the value of the actual damage sustained.
Every unwarrantable entry on another’s soil the law entitles a trespass by breaking his close; the words of the writ of trespass commanding the defendant to shew cause, quare clausum querentis fregit. For every man’s land is in the eye of the law inclosed and set apart from his neighbour’s: and that either by a visible and material fence, as one field is divided from another by a hedge; or, by an ideal invisible boundary, existing only in the contemplation of law, as when one man’s land adjoins to another’s in the same field. And every such entry or breach of a man’s close carries necessarily along with it some damage or other: for, if no other special loss can be assigned, yet still the words of the writ itself specify one general damage, viz. the treading down and bruising his herbage[3].
One must have a property (either absolute or temporary) in the soil, and actual possession by entry, to be able to maintain an action of trespass: or at least, it is requisite that the party have a lease and possession of the vesture and herbage of the land[4]. Thus if a meadow be divided annually among the parishioners by lot, then, after each person’s several portion is allotted, they may be respectively capable of maintaining an action for the breach of their several closes[5]; for they have an exclusive interest and freehold therein for the time. But before entry and actual possesson, one cannot maintain an action of trespass, though he hath the freehold in law[6]. And therefore an heir before entry cannot have this action against an abater; though a disseisee might have it against a disseisor, for the injury done by the disseisin itself, at which time the plaintiff was seised of the land: but he cannot have it for any act done after the disseisin, until he hath gained possession by re-entry, and then he may well maintain it for the intermediate damage done; for after his re-entry the law, by a kind of jus postliminii, supposes the freehold to have all along continued in him[7]. Neither, by the common law, in case of an intrusion or deforcement, could the party kept out of possession sue the wrongdoer by a mode of redress, which was calculated merely for injuries committed against the land while in the possession of the owner. But by the statute 6 Ann. c. 18. if a guardian or trustee for any infant, a husband seised jure uxoris, or a person having any estate or interest determinable upon a life or lives, shall, after the determination of their respective interests, hold over and continue in possession of the lands or tenements, they are now adjudged to be trespassors; and the reversioner or remainder-man may once in every year, by motion to the court of chancery, procure the cestuy que vie to be produced by the tenant of the land, or may enter thereon in case of his refusal or wilful neglect. And, by the statutes of 4 Geo. II. c. 28. and 11 Geo. II. c. 19. in case after the determination of any term of life, lives, or years, any person shall wilfully hold over the same, the lessor is entitled to recover by action of debt, either a rent of double the annual value of the premises, in case he himself hath demanded and given notice in writing to deliver the possession; or else double the usual rent, in case the notice of quitting proceeds from any tenant having power to determine his lease, and he afterwards neglects to carry it into due execution.
A man is answerable for not only his own trespass, but that of his cattle also: for if by his negligent keeping they stray upon the land of another (and much more if he permits, or drives them on) and they there tread down his neighbour’s herbage, and spoil his corn or his trees, this is a trespass for which the ovner must answer in damages. And the law gives the party injured a double remedy in this case; by permitting him to distrein the cattle thus damage-feasant, or doing damage, till the owner shall make him satisfaction; or else by leaving him to the common remedy in foro contentioso, by action. And the action that lies in either of these cases, of trespass committed upon another’s land either by a man himself or his cattle, is the action of trespass vi et armis; whereby a man is called upon to answer, quare vi et armis clausum ipsius A. apud B. fregit, et blada ipsius A. ad valentiam centum solidorum ibidem nuper crescentia cum quibusdam averiis depastus fuit, conculcavit, et consumpsit, &c[8]: for the law always couples the idea of force with that of intrusion upon the property of another. And herein, if any unwarrantable act of the defendant or his beasts in coming upon the land be proved, it is an act of trespass for which the plaintiff must recover some damages; such however as the jury shall think proper to assess.
In trespasses of a permanent nature, where the injury is continually renewed, (as by spoiling or consuming the herbage with the defendant’s cattle) the declaration may allege the injury to have been committed by continuation from one given day to another, (which is called laying the action with a continuando) and the plaintiff shall not be compelled to bring separate actions for every day’s separate offence[9]. But where the trespass is by one or several acts, each of which terminates in itself, and being once done cannot be done again, it cannot be laid with a continuando; yet if there be repeated acts of trespass committed, (as cutting down a certain number of trees) they may be laid to be done, not continually, but at divers days and times within a given period[10].
in some cases trespass is justifiable; or, rather, entry on another’s land or house shall not in those cases be accounted trespass: as if a man comes there to demand or pay money, there payable; or to execute, in a legal manner, the process of the law. Also a man may justify entering into an inn or public house, without the leave of the owner first specially asked; because, when a man professes the keeping of such inn or public house, he thereby gives a general licence to any person to enter his doors. So a landlord may justify entering to distrein for rent; a commoner to attend his cattle, commoning on another’s land; and a reversioner, to see if any waste be committed on the estate; for the apparent necessity of the thing[11]. Also it hath been said, that by the common law and custom of England the poor are allowed to enter and glean upon another’s ground after the harvest, without being guilty of trespass[12]: which humane provision seems borrowed from the mosaical law[13]. In like manner the common law warrants the hunting of ravenous beasts of prey, as badgers and foxes, in another man’s land; because the destroying such creatures is profitable to the public[14]. But in cases where a man misdemeans himself, or makes an ill use of the authority with which the law entrusts him, he shall be accounted a trespasser ab initio[15]: as if one comes into a tavern and will not go out in a reasonable time, but tarries there all night contrary to the inclinations of the owner; this wrongful act shall affect and have relation back even to his first entry, and make the whole a trespass[16]. But a bare non-feasance, as not paying for the wine he calls for, will not make him a trespasser; for this is only a breach of contract, for which the taverner shall have an action of debt or assumpsit against him[17]. So if a landlord distreined for rent, and wilfully killed the distress, this by the common law made him a trespasser ab initio[18]: and so indeed would any other irregularity have done, till the statute 11 Geo. II. c.19. which enacts that no subsequent irregularity of the landlord shall make his first entry a trespass; but the party injured shall have a special action on the case for the real specific injury sustained, unless tender of amends hath been made. But still, if a reversioner, who enters on pretence of seeing waste, breaks the house, or stays there all night; or if the commoner who comes to tend his cattle, cuts down a tree; in these and similar cases the law judges that he entered for this unlawful purpose, and therefore, as the act which demonstrates such his purpose is a trespass, he shall be esteemed a trespasser ab initio[19]. So also in the case of hunting the fox or the badger, a man cannot justify breaking the soil, and digging him out of his earth: for though the law warrants the hunting of such noxious animals for the public good, yet it is held[20] that such things must be done in an ordinary and usual manner; therefore that being an ordinary course to kill them, viz. by hunting, the court held that the digging for them was unlawful.
A man may also justify in an action of trespass, on account of the freehold and right of entry being in himself; and this defence brings the title of the estate in question. This is therefore one of the ways devised, since the disuse of real actions, to try the property of estates; though it is not so usual as that by ejectment, because that, being now a mixed action, not only gives damages for the ejection, but also possession of the land: whereas in trespass, which is merely a personal suit, the right can be only ascertained, but no possession delivered; nothing being recovered but damages for the wrong committed.
In order to prevent trifling and vexatious actions of trespass, as well as other personal actions, it is (inter alia) enacted by statutes 43 Eliz. c. 6. and 22 and 23 Car. II. c. 9. §. 136. that where the jury who try an action of trespass, give less damages than forty shillings, the plaintiff shall be allowed no more costs than damages; unless the judge shall certify under his hand that the freehold or title of the land came chiefly in question. But this rule now admits of two exceptions more, which have been made by subsequent statutes. One is by statute 8 & 9 W. III. c. 11. which enacts, that in all actions of trespass, wherein it shall appear that the trespass was wilful and malicious, and it be so certified by the judge, the plaintiff shall recover full costs. Every trespass is wilful, where the defendant has notice, and is especially forewarned not to come on the land; as every trespass is malicious, though the damage may not amount to forty shillings, where the intent of the defendant plainly appears to be to harrass and distress the plaintiff. The other exception is by statute 4 & 5 W. &. M. c. 23. which gives full costs against any inferior tradesman, apprentice, or other dissolute person, who is convicted of a trespass in hawking, hunting, fishing, or fowling upon another’s land. Upon this statute it has been adjudged, that if a person be an inferior tradesman, as a clothier for instance, it matters not what qualification he may have in point of estate; but, if he be guilty of such trespass, he shall be liable to pay full costs[21].
↑ See pag. 123.
↑ Inst. 2. 1. 12.
↑ F. N. B. 87, 88.
↑ Dyer. 285. 2 Roll. Abr. 549.
↑ Cro. Eliz. 421.
↑ 2 Roll. Abr. 553.
↑ 11 Rep. 5.
↑ Registr. 94.
↑ 2 Roll. Abr. 545. Lord Raym. 240.
↑ Salk. 638, 639. Lord Raym. 823. 7 Mod. 152.
↑ 8 Rep. 146.
↑ Gilb. Ev. 253. Trials per pais. ch. 15. pag. 438.
↑ Levit. c.19. v.9. & c.23. v.22. Deut. c.24 v.19, &c.
↑ Cro. Jac. 321.
↑ Finch. L. 47. Cro. Jac. 148.
↑ 2 Roll. Abr. 561.
↑ 8 Rep. 147.
↑ Finch. L. 47.
↑ 8 Rep. 146.
↑ Cro. Jac. 321.
↑ Lord Raym. 149.
Chapter the thirteenth.
Of Nusance.
A third species of real injuries to a man’s lands and tenements, is by nusance. Nusance, nocumentum, or annoyance, signifies any thing that worketh hurt, inconvenience, or damage. And nusances are of two kinds; public or common nusances, which affect the public, and are an annoyance to all the king’s subjects; for which reason we must refer them to the class of public wrongs, or crimes and misdemesnors: and private nusances; which are the objects of our present consideration, and may be defined, any thing done to the hurt or annoyance of the lands, tenements, or hereditaments of another[1]. We will therefore, first, mark out the several kinds of nusances, and then their respective remedies.
I. In discussing the several kinds of nusances, we will consider, first, such nusances as may affect a man’s corporeal hereditaments, and then those that may damage such as are incorporeal.
- First, as to corporeal inheritances. If a man builds a house so close to mine that his roof overhangs my roof, and throws the water off his roof upon mine, this is a nusance, for which an action will lie[2]. Likewise to erect a house or other building so near to mine, that it stops up my antient lights and windows, is a nusance of a similar nature[3]. But in this latter case it is necessary that the windows be antient, that is, have subsisted there time out of mind; otherwise there is no injury done. For he hath as much right to build a new edifice upon his ground, as I have upon mine: since every man may do what he pleases upon the upright or perpendicular of his own soil; and it was my folly to build so near another’s ground[4]. Also, if a person keeps his hogs, or other noisome animals, so near the house of another, that the stench of them incommodes him and makes the air unwholsome, this is an injurious nusance, as it tends to deprive him of the use and benefit of his house[5]. A like injury is, if one’s neighbour sets up and exercises any offensive trade; as a tanner’s, a tallowchandler’s, or the like: for though these are lawful and necessary trades, yet they should be exercised in remote places; for the rule is, “sic utere tuo, ut alienum non laedas:” this therefore is an actionable nusance[6]. So that the nusances which affect a man’s dwelling may be reduced to these three: 1. Overhanging it, which is also a species of trespass, for cujus est solum ejus est usque ad coelum: 2. Stopping antient lights: and, 3. Corrupting the air with noisome smells: for light and air are two indispensable requisites to every dwelling. But depriving one of a mere matter of pleasure, as of a fine prospect, by building a wall, or the like; this, as it abridges nothing really convenient or necessary, is no injury to the sufferer, and is therefore not an actionable nusance[7].
As to nusances to one’s lands: if one erects a smelting house for lead so near the land of another, that the vapor and smoke kills his corn and grass, and damages his cattle therein, this is held to be a nusance[8]. And by consequence it follows, that if one does any other act, in itself lawful, which yet being done in that place necessarily tends to the damage of another’s property, it is a nusance: for it is incumbent on him to find some other place to do that act, where it will be less offensive. So also, if my neighbour ought to scour a ditch, and does not, whereby my land is overflowed, this is an actionable nusance[9].
With regard to other corporeal hereditaments: it is a nusance to stop or divert water that uses to run to another’s meadow or mill[10]; to corrupt or poison a water-course, by erecting a dye-house or a lime-pit for the use of trade, in the upper part of the stream[11]; or in short to do any act therein, that in it’s consequences must necessarily tend to the prejudice of one’s neighbour. So closely does the law of England enforce that excellent rule of gospel-morality, of “doing to others, as we would they should do unto ourselves.”
- As to incorporeal hereditaments, the law carries itself with the same equity. If I have a way, annexed to my estate, across another’s land, and he obstructs me in the use of it, either by totally stopping it, or putting logs across it, or ploughing over it, it is a nusance: for in the first case I cannot enjoy my right at all, and in the latter I cannot enjoy it so commodiously as I ought[12]. Also, if I am entitled to hold a fair or market, and another person sets up a fair or market so near mine that it does me a prejudice, it is a nusance to the freehold which I have in my market or fair[13]. But in order to make this out to be a nusance, it is necessary, 1. That my market or fair be the elder, otherwise the nusance lies at my own door. 2. That the market be erected within the third part of twenty miles from mine. For sir Matthew Hale[14] construes the dieta, or reasonable day’s journey, mentioned by Bracton[15], to be twenty miles: as indeed it is usually understood not only in our own law[16], but also in the civil[17], from which we probably borrowed it. So that if the new market be not within seven miles of the old one it is no nusance: for it is held reasonable that every man should have a market within one third of a day’s journey from his own home; that, the day being divided into three parts, he may spend one part in going, another in returning, and the third in transacting his necessary business there. If such market or fair be on the same day with mine, it is prima facie a nusance to mine, and there needs no proof of it, but the law will intend it to be so: but if it be on any other day, it may be a nusance; though whether it is so or not, cannot be intended or presumed, but I must make proof of it to the jury. If a ferry is erected on a river, so near another antient ferry as to draw away it’s custom, it is a nusance to the owner of the old one. For where there is a ferry by prescription, the owner is bound to keep it always in repair and readiness, for the ease of all the king’s subjects; otherwise he may be grievously amerced[18]: it would be therefore extremely hard, if a new ferry were suffered to share his profits, which does not also share his burthen. But, where the reason ceases, the law also ceases with it: therefore it is no nusance to erect a mill so near mine, as to draw away the custom, unless the miller also intercepts the water. Neither is it a nusance to set up any trade, or a school, in neighbourhood or rivalship with another: for by such emulation the public are like to be gainers; and, if the new mill or school occasion a damage to the old one, it is damnum absque injuria[19].
II. Let us next attend to the remedies, which the law has given for this injury of nusance. And here I must premise that the law gives no private remedy for any thing but a private wrong. Therefore no action lies for a public or common nusance, but an indictment only: because the damage being common to all the king’s subjects, no one can assign his particular proportion of it; or, if he could, it would be extremely hard, if every subject in the kingdom were allowed to harrass the offender with separate actions. For this reason, no person, natural or corporate, can have an action for a public nusance, or punish it; but only the king in his public capacity of supreme governor, and pater-familias of the kingdom[20]. Yet this rule admits of one exception; where a private person suffers some extraordinary damage, beyond the rest of the king’s subjects, by a public nusance: in which case he shall have a private satisfaction by action. As if, by means of a ditch dug across a public way, which is a common nusance, a man or his horse suffer any injury by falling therein; there, for this particular damage, which is not common to others, the party shall have his action[21]. Also if a man hath abated, or removed, a nusance which offended him (as we may remember it was stated, in the first chapter of this book, that the party injured hath a right to do) in this case he is entitled to no action[22]. For he had choice of two remedies; either without suit, by abating it himself, by his own mere act and authority; or by suit, in which he may both recover damages, and remove it by the aid of the law: but having made his election of one remedy, he is totally precluded from the other.
The remedies by suit, are, 1. By action on the case for damages; in which the party injured shall only recover a satisfaction for the injury sustained; but cannot thereby remove the nusance. Indeed every continuance of a nusance is held to be a fresh one[23]; and therefore a fresh action will lie, and very exemplary damages will probably be given, if, after one verdict against him, the defendant has the hardiness to continue it. Yet the founders of the law of England did not rely upon probabilities merely, in order to give relief to the injured. They have therefore provided two other actions; the assise of nusance, and the writ of quod permittat prosternere: which not only give the plaintiff satisfaction for his injury past, but also strike at the root and remove the cause itself, the nusance that occasioned the injury. These two actions however can only be brought by the tenant of the freehold, so that a lessee for years is confined to his action upon the case[24].
- An assise of nusance is a writ, wherein it is stated that the party injured complains of some particular fact done, ad nocumentum liberi tenementi sui, and therefore commanding the sheriff to summon an assise, that is, a jury, and view the premises, and have them at the next commission of assises, that justice may be done therein[25]: and, if the assise is found for the plaintiff, he shall have judgment of two things; 1. To have the nusance abated; and 2. To recover damages[26]. Formerly an assise of nusance only lay against the very wrongdoer himself who levied, or did, the nusance; and did not lie against any person to whom he had aliened the tenements, whereon the nusance was situated. This was the immediate reason for making that equitable provision in statute Westm. 2. 13 Edw. I. c. 24. for granting a similar writ, in casu consimili, where no former precedent was to be found. The statute enacts, that “de caetero non recedant querentes a curia domini regis, pro eo quod tenementum transfertur de uno in alium;” and then gives the form of a new writ in this case: which only differs from the old one in this, that, where the assise is brought against the very person only who levied the nusance, it is laid, “quod A. (the wrongdoer) injuste levavit tale nocumentum;” but, where the lands are aliened to another person, the complaint is against both; “quod A. (the wrongdoer) et B. (the alienee) levaverunt[27].” For every continuation, as was before said, is a fresh nusance; and therefore the complaint is as well grounded against the alienee who continues it, as against the alienor who first levied it.
Before this statute, the party injured, upon any alienation of the land wherein the nusance was set up, was driven to his quod permittat prosternere; which is in the nature of a writ of right, and therefore subject to greater delays[28]. This is a writ commanding the defendant to permit the plaintiff to abate, quod permittat prosternere, the nusance complained; and, unless he so permits, to summon him to appear in court, and shew cause why he will not[29]. And this writ lies as well for the alienee of the party first injured, as against the alienee of the party first injuring; as hath been determined by all the judges[30]. And the plaintiff shall have judgment herein to abate the nusance, and to recover damages against the defendant.
Both these actions, of assise of nusance, and of quod permittat prosternere, are now out of use, and have given way to the action on the case; in which, as was before observed, no judgment can be had to abate the nusance, but only to recover damages. Yet, as therein it is not necessary that the freehold should be in the plaintiff and defendant respectively, as it must be in these real actions, but it is maintainable by one that hath possession only, against another that hath like possession, the process is therefore easier: and the effect will be much the same, unless a man has a very obstinate as well as an ill-natured neighbour; who had rather continue to pay damages, than remove his nusance. For in such case, recourse must at last be had to the old and sure remedies, which will effectually conquer the defendant’s perverseness, by sending the sheriff with his posse comitatus, or power of the county, to level it.
↑ Finch. L. 188.
↑ F. N. B. 184.
↑ 9 Rep. 58.
↑ Cro. Eliz. 118. Salk. 459.
↑ 9 Rep. 58.
↑ Cro. Car. 510.
↑ 9 Rep. 58.
↑ 1 Roll. Abr. 89.
↑ Hale on F. N. B. 427.
↑ F. N. B. 184.
↑ 9 Rep. 59. 2 Roll. Abr. 141.
↑ F. N. B. 183. 2 Roll. Abr. 140.
↑ F. N. B. 184. 2 Roll Abr. 140.
↑ on F. N. B. 184.
↑ l. 3 c. 16.
↑ 2 Inst. 567.
↑ Ff. 2. 11. 1.
↑ 2 Roll. Abr. 140.
↑ Hale on F. N. B. 184.
↑ Vaugh. 341, 342.
↑ Co. Litt. 56. 5 Rep. 73.
↑ 9 Rep. 55.
↑ 2 Leon. pl 129. Cro. Eliz. 402.
↑ Finch. L. 289.
↑ F. N. B. 183.
↑ 9 Rep. 55.
↑ Ibid.
↑ 2 Inst. 405.
↑ F. N. B. 124.
↑ 5 Rep. 100, 101.
Commentaries
on the
Laws of England.
Book the fourth.
Of Public Wrongs.
Chapter the first.
Of the Nature of Crimes; and their Punishment.
WE are now arrived at the fourth and last branch of these commentaries ; which treats of public wrongs, or crimes and misdemesnors. For we may remember that, in the beginning of the preceding volume[1], wrongs were divided into two sorts or species ; the one private, and the other public. Private wrongs, which are frequently termed civil injuries, were the subject of that entire book : we are now therefore, lastly, to proceed to the consideration of public wrongs, or crimes and misdemesnors ; with the means of their prevention and punishment. In the pursuit of which subject I shall consider, in the first place, the general nature of crimes and punishments ; secondly, the persons capable of committing crimes ; thirdly, their several degrees of guilt, as principals or accessories ; fourthly, the several species of crimes, with the punishment annexed to each by the laws of England ; fifthly, the means of preventing their perpetration ; and, sixthly, the method of inflicting those punimments, which the law has annexed to each several crime and misdemesnor.
First, as to the general nature of crimes and their punishment : the discussion and admeasurement of which forms in every country the code of criminal law ; or, as it is more usually denominated with us in England, the doctrine of the pleas of the crown : so called, because the king, in whom centers the majesty of the whole community, is supposed by the law to be the person injured by every infraction of the public rights belonging to that community, and is therefore in all cases the proper prosecutor for every public offence[2] .
The knowlege of this branch of jurisprudence, which teaches the nature, extent, and degrees of every crime, and adjusts to it it’s adequate and necessary penalty, is of the utmost importance to every individual in the state. For (as a very great master of the crown law[3] has observed upon a similar occasion) no rank or elevation in life, no uprightness of heart, no prudence or circumspection of conduct, should tempt a man to conclude, that he may not at some time or other be deeply interested in these researches. The infirmities of the best among us, the vices and ungovernable passions of others, the instability of all human affairs, and the numberless unforeseen events, which the compass of a day may bring forth, will teach us (upon a moment’s reflection) that to know with precision what the laws of our country have forbidden, and the deplorable consequences to which a wilful disobedience may expose us, is a matter of universal concern.
In proportion to the importance of the criminal law, ought also to be the care and attention of the legislature in properly forming and enforcing it. It should be founded upon principles that are permanent, uniform, and universal ; and always conformable to the dictates of truth and justice, the feelings of humanity, and the indelible rights of mankind : though it sometimes (provided there be no transgression of these eternal boundaries) may be modified, narrowed, or enlarged, according to the local or occasional necessities of the state which it is meant to govern. And yet, either from a want of attention to these principles in the first concoction of the laws, and adopting in their stead the impetuous dictates of avarice, ambition, and revenge ; from retaining the discordant political regulations, which successive conquerors or factions have established, in the various revolutions of government ; from giving a lasting efficacy to sanctions that were intended to be temporary, and made (as lord Bacon expresses it) merely upon the spur of the occasion ; or from, lastly, too hastily employing such means as are greatly disproportionate to their end, in order to check the progress of some very prevalent offence ; from some, or from all, of these causes it hath happened, that the criminal law is in every country of Europe more rude and imperfect than the civil. I shall not here enter into any minute enquiries concerning the local constitutions of other nations ; the inhumanity and mistaken policy of which have been sufficiently pointed out by ingenious writers of their own[4]. But even with us in England, where our crown-law is with justice supposed to be more nearly advanced to perfection; where crimes are more accurately defined, and penalties less uncertain and arbitrary ; where all our accusations are public, and our trials in the face of the world, where torture is unknown, and every delinquent is judged by such of his equals, against whom he can form no exception nor even a personal dislike ;—even here we shall occasionally find room to remark some particulars, that seem to want revision and amendment. These have chiefly arisen from too scrupulous an adherence to some rules of the antient common law, when the reasons have ceased upon which those rules were founded ; from not repaling such of the old penal laws as are either obsolete or absurd ; and from too little care and attention in framing and passing new ones. The enacting of penalties, to which a whole nation shall be subject, ought not to be left as a matter of indifference to the passions or interests of a few, who upon temporary motives may prefer or support such a bill ; but be calmly and maturely considered by persons, who know what provision the laws has already made to remedy the mischief complained of, who can from experience foresee the probable consequences of those which are now proposed, and who will judge without passion or prejudice how adequate they are to the evil. It is never usual in the house of peers even to read a private bill, which may affect the property of an individual, without first referring it to some of the learned judges, and hearing their report thereon[5]. And surely equal precaution is necessary, when laws are to be established, which may affect the property, the liberty, and perhaps even the lives, of thousands. Had such a reference taken place, it is impossible that in the eighteenth century it could ever have been made a capital crime, to break down (however maliciously) the mound of a fishpond, whereby any fish shall escape ; or to cut down a cherry tree in an orchard[6]. Were even a committee appointed but once in an hundred years to revise the criminal law, it could not have continued to this hour a felony without benefit of clergy, to be seen for one month in the company of persons who call themselves, or are called, Egyptians[7].
It is true, that these outrageous penalties, being seldom or never inflicted, are hardly known to be law by the public : but that rather aggravates the mischief, by laying a snare for the unwary. Yet they cannot but occur to the observation of any one, who hath undertaken the task of examining the great outlines of the English law, and tracing them up to their principles : and it is the duty of such a one to hint them with decency to those, whose abilities and stations enable them to apply the remedy. Having therefore premised this apology for some of the ensuing remarks, which might otherwise seem to savour of arrogance, I proceed now to consider (in the first place) the general nature of crimes.
I. A crime, or misdemesnor, is an act committed, or omitted, in violation of a public law, either forbidding or commanding it. This general definition comprehends both crimes and misdemesnors ; which, properly speaking, are mere synonymous terms : though, in common usage, the word “crimes” is made to denote such offences as are of a deeper and more atrocious dye ; while smaller faults, and omissions of less consequence, are comprized under the gentler name of “misdemesnors” only.
The distinction of public wrongs from private, of crimes and misdemesnors from civil injuries, seems principally to consist in this : that private wrongs, or civil injuries, are an infringement or privation of the civil rights which belong to individuals, considered merely as individuals ; public wrongs, or crimes and misdemesnors, are a breach and violation of the public rights and duties, due to the whole community, considered as a community, in it’s social aggregate capacity. As if I detain a field from another man, to which the law has given him a right, this is a civil injury, and not a crime; for here only the right of an individual is concerned, and it is immaterial to the public, which of us is in possession of the land : but treason, murder, and robbery are properly ranked among crimes ; since, besides the injury done to individuals, they strike at the very being of society ; which cannot possibly subsist, where actions of this sort are suffered to escape with impunity.
In all cases the crime includes an injury: every public offence is also a private wrong, and somewhat more ; it affects the individual, and it likewise affects the community. Thus treason in imagining the king’s death involves in it conspiracy against an individual, which is also a civil injury : but as this species of treason in it’s consequences principally tends to the dissolution of government, and the destruction thereby of the order and peace of society, this denominates it a crime of the highest magnitude. Murder is an injury to the life of an individual ; but the law of society considers principally the loss which the state sustains by being deprived of a member, and the pernicious example thereby let, for others to do the like. Robbery may be considered in the same view : it is an injury to private property ; but, were that all, a civil satisfaction in damages might atone for it : the public mischief is the thing, for the prevention of which our laws have made it a capital offence. In these gross and atrocious injuries the private wrong is swallowed up in the public : we seldom hear any mention made of satisfaction to the individual ; the satisfaction to the community being so very great. And indeed, as the public crime is not otherwise avenged than by forfeiture of life and property, it is impossible afterwards to make any reparation for the private wrong ; which can only be had from the body or goods of the aggressor. But there are crimes of an inferior nature, in which the public punishment is not so severe, but it affords room for a private compensation also : and herein the distinction of crimes from civil injuries is very apparent. For instance ; in the case of battery, or beating another, the aggressor may be indicted for this at the suit of the king, for disturbing the public peace, and be punished criminally by fine and imprisonment : and the party beaten may also have his private remedy by action of trespass for the injury, which he in particular sustains, and recover a civil satisfaction in damages. So also, in case of a public nusance, as digging a ditch across a highway, this is punishable by indictment, as a common offence to the whole kingdom and all his majesty’s subjects : but if any individual sustains any special damage thereby, as laming his horse, breaking his carriage, or the like, the offender may be compelled to make ample satisfaction, as well for the private injury, as for the public wrong.
Upon the whole we may observe, that in taking cognizance of all wrongs, or unlawful acts, the law has a double view : viz. not only to redress the party injured, by either restoring to him his right, if possible ; or by giving him an equivalent ; the manner of doing which was the object of our enquiries in the preceding book of these commentaries : but also to secure to the public the benefit of society, by preventing or punishing every breach and violation of those laws, which the sovereign power has thought proper to establish, for the government and tranquillity of the whole. What those breaches are, and how prevented or punished, are to be considered in the present book.
II. The nature of crimes and misdemesnors in general being thus ascertained and distinguished, I proceed in the next place to consider the general nature of punishments : which are evils or inconveniencies consequent upon crimes and misdemesnors ; being devised, denounced, and inflicted by human laws, in consequence of disobedience or misbehaviour in those, to regulate whose conduct such laws were respectively made. And herein we will briefly consider the power, the end, and the measure of human punishment.
- As to the power of human punishment, or the right of the temporal legislator to inflict discretionary penalties for crimes and misdemesnors[8]. It is clear, that the right of punishing crimes against the law of nature, as murder and the like, is in a state of mere nature vested in every individual. For it must be vested in somebody ; otherwise the laws of nature would be vain and fruitless, if none were empowered to put them in execution : and if that power is vested in any one, it must also be vested in all mankind ; since all are by nature equal. Whereof the first murderer Cain was so sensible, that we find him[9] expressing his apprehensions, that whoever should find him would slay him. In a state of society this right is transferred from individuals to the sovereign power ; whereby men are prevented from being judges in their own causes, which is one of the evils that civil government was intended to remedy. Whatever power therefore individuals had of punishing offences against the law of nature, that is now vested in the magistrate alone ; who bears the sword of justice by the consent of the whole community. And to this precedent natural power of individuals must be referred that right, which some have argued to belong to every state, (though, in fact, never exercised by any) of punishing not only their own subjects, but also foreign embassadors, even with death itself ; in case they have offended, not indeed against the municipal laws of the country, but against the divine laws of nature, and become liable thereby to forfeit their lives for their guilt[10].
As to offences merely against the laws of society, which are only mala prohibita, and not mala in se ; the temporal magistrate is also empowered to inflict coercive penalties for such transgressions : and this by the consent of individuals ; who, in forming societies, did either tacitly or expressly invest the sovereign power with a right of making laws, and of enforcing obedience to them when made, by exercising, upon their non-observance, severities adequate to the evil. The lawfulness therefore of punishing such criminals is founded upon this principle, that the law by which they suffer was made by their own consent ; it is a part of the original contract into which they entered, when first they engaged in society ; it was calculated for, and has long contributed to, their own security.
This right therefore, being thus conferred by universal consent, gives to the state exactly the same power, and no more, over all it’s members, as each individual member had naturally over himself or others. Which has occasioned some to doubt, how far a human legislature ought to inflict capital punishments for positive offences ; offences against the municipal law only, and not against the law of nature ; since no individual has, naturally, a power of inflicting death upon himself or others for actions in themselves indifferent. With regard to offences mala in se, capital punishments are in some instances inflicted by the immediate command of God himself to all mankind ; as, in the case of murder, by the precept delivered to Noah, their common ancestor and representative[11], “ whoso sheddeth man’s blood, by man shall his blood be shed. ” In other instances they are inflicted after the example of the creator, in his positive code of laws for the regulation of the Jewish republic ; as in the case of the crime against nature. But they are sometimes inflicted without such express warrant or example, at the will and discretion of the human legislature ; as for forgery, for theft, and sometimes for offences of a lighter kind. Of these we are principally to speak : as these crimes are, none of them, offences against natural, but only against social, rights ; not even theft itself, unless it be accompanied with violence to one’s house or person : all others being an infringement of that right of property, which, as we have formerly seen[12], owes it’s origin not to the law of nature, but merely to civil society.
The practice of inflicting capital punishments, for offences of human institution, is thus justified by that great and good man, sir Matthew Hale[13] : “ when offences grow enormous, frequent, and dangerous to a kingdom or state, destructive or highly pernicious to civil societies, and to the great insecurity and danger of the kingdom or it’s inhabitants, severe punishment and even death itself is necessary to be annexed to laws in many cases by the prudence of lawgivers. ” It is therefore the enormity, or dangerous tendency, of the crime, that alone can warrant any earthly legislature in putting him to death that commits it. It is not it’s frequency only, or the difficulty of otherwise preventing it, that will excuse our attempting to prevent it by a wanton effusion of human blood. For, though the end of punishment is to deter men from offending, it never can follow from thence, that it is lawful to deter them at any rate and by any means ; since there may be unlawful methods of enforcing obedience even to the justest laws. Every humane legislator will be therefore extremely cautious of establishing laws that inflict the penalty of death, especially for slight offences, or such as are merely positive. He will expect a better reason for his so doing, than that loose one which generally is given ; that it is found by former experience that no lighter penalty will be effectual. For is it found upon farther experience, that capital punishments are more effectual ? Was the vast territory of all the Russias worse regulated under the late empress Elizabeth, than under her more sanguinary predecessors ? Is it now, under Catherine II, less civilized, less social, less secure ? And yet we are assured, that neither of these illustrious princesses have, throughout their whole administration, inflicted the penalty of death : and the latter has, upon full persuasuion of it’s being useless, nay even pernicious, given orders for abolishing it entirely throughout her extensive dominions[14]. But indeed, were capital punishments proved by experience to be a sure and effectual remedy, that would not prove the necessity (upon which the justice and propriety depend) of inflicting them upon all occasions when other expedients fail. I fear this reasoning would extend a great deal too far. For instance, the damage done to our public roads by loaded waggons is universally allowed, and many laws have been made to prevent it ; none of which have hitherto proved effectual. But it does not therefore follow, that it would be just for the legislature to inflict death upon every obstinate carrier, who defeats or eludes the provisions of former statutes. Where the evil to be prevented is not adequate to the violence of the preventive, a sovereign that thinks seriously can never justify such a law to the dictates of conscience and humanity. To shed the blood of our fellow creature is a matter that requires the greatest deliberation, and the fullest conviction of our own authority : for life is the immediate gift of God to man ; which neither he can resign, nor can it be taken from him, unless by the command or permission of him who gave it ; either expressly revealed, or collected from the laws of nature or society by clear and indisputable demonstration.
I would not be understood to deny the right of the legislature in any country to inforce it’s own laws by the death of the transgressor, though persons of some abilities have doubted it ; but only to suggest a few hints for the consideration of such as are, or may hereafter become, legislators. When a question arises, whether death may be lawfully inflicted for this or that transgression, the wisdom of the laws must decide it : and to this public judgment or decision all private judgments must submit ; else there is an end of the first principle of all society and government. The guilt of blood, if any, must lie at their doors, who misinterpret the extent of their warrant ; and not at the doors of the subject, who is bound to receive the interpretations, that are given by the sovereign power.
-
As to the end, or final cause of human punishments. This is not by way of atonement or expiation for the crime committed ; for that must be left to the just determination of the supreme being : but as a precaution against future offences of the same kind. This is effected three ways : either by the amendment of the offender himself ; for which purpose all corporal punishments, fines, and temporary exile or imprisonment are inflicted : or, by deterring others by the dread of his example from offending in the like way, “ ut poena (as Tully[15] expresses it) ad paucos, metus ad omnes perveniat ;” which gives rise to all ignominious punishments, and to such executions of justice as are open and public : or, lastly, by depriving the party injuring of the power to do future mischief ; which is effected by either putting him to death, or condemning him to perpetual confinement, slavery, or exile. The same one end, of preventing future crimes, is endeavoured to be answered by each of these three species of punishment. The public gains equal security, whether the offender himself be amended by wholsome correction, or whether he be disabled from doing any farther harm : and if the penalty fails of both these effects, as it may do, still the terror of his example remains as a warning to other citizens. The method however of inflicting punishment ought always to be proportioned to the particular purpose it is meant to serve, and by no means to exceed it : therefore the pains of death, and perpetual disability by exile, slavery, or imprisonment, ought never to be inflicted, but when the offender appears incorrigible : which may be collected either from a repetition of minuter offences ; or from the perpetration of some one crime of deep malignity, which of itself demonstrates a disposition without hope or probability of amendment : and in such cases it would be cruelty to the public, to defer the punishment of such a criminal, till he had an opportunity of repeating perhaps the worst of villanies.
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As to the measure of human punishments. From what has been obierved in the former articles we may collect, that the quantity of punishment can never be absolutely determined by any standing invariable rule ; but it must be left to the arbitration of the legislature to inflict such penalties as are warranted by the laws of nature and society, and such as appear to be the best calculated to answer the end of precaution against future offences.
Hence it will be evident, that what some have so highly extolled for its equity, the lex talionis or law of retaliation, can never be in all cases an adequate or permanent rule of punishment. In some cases indeed it seems to be dictated by natural reason ; as in the case of conspiracies to do an injury, or false accusations of the innocent : to which we may add that law of the Jews and Egyptians, mentioned by Josephus and Diodorus Siculus, that whoever without sufficient cause was found with any mortal poison in his custody, should himself be obliged to take it. But, in general, the difference of persons, place, time, provocation, or other circumstances, may enhance or mitigate the offence ; and in such cases retaliation can never be a proper measure of justice. If a nobleman strikes a peasant, all mankind will see, that if a court of justice awards a return of the blow, it is more than a just compensation. On the other hand, retaliation may sometimes be too easy a sentence ; as, if a man maliciously should put out the remaining eye of him who had lost one before, it is too slight a punishment for the maimer to lose only one of his : and therefore the law of the Locrians, which demanded an eye for an eye, was in this instance judiciously altered ; by decreeing, in imitation of Solon’s laws[16], that he who struck out the eye of a one-eyed man, should lose both his own in return. Besides, there are very many crimes, that will in no shape admit of these penalties, without manifest absurdity and wickedness. Theft cannot be punished by theft, defamation by defamation, forgery by forgery, adultery by adultery, and the like. And we may add, that those instances, wherein retaliation appears to be used, even by the divine authority, do not really proceed upon the rule of exact retribution, by doing to the criminal the same hurt he has done to his neighbour, and no more ; but this correspondence between the crime and punishment is barely a consequence from some other principle. Death is ordered to be punished with death ; not because one is equivalent to the other, for that would be expiation, and not punishment. Nor is death always an equivalent for death : the execution of a needy decrepid assassin is a poor satisfaction for the murder of a nobleman in the bloom of his youth, and full enjoyment of his friends, his honours, and his fortune. But the reason upon which this sentence is grounded seems to be, that this is the highest penalty that man can inflict, and tends most to the security of the world ; by removing one murderer from the earth, and setting a dreadful example to deter others : so that even this grand instance proceeds upon other principles than those of retaliation. And truly, if any measure of punishment is to be taken from the damage sustained by the sufferer, the punishment ought rather to exceed than equal the injury : since it seems contrary to reason and equity, that the guilty (if convicted) should suffer no more than the innocent has done before him ; especially as the suffering of the innocent is past and irrevocable, that of the guilty is future, contingent, and liable to be escaped or evaded. With regard indeed to crimes that are incomplete, which consist merely in the intention, and are not yet carried into act, as conspiracies and the like ; the innocent has a chance to frustrate or avoid the villany, as the conspirator has also a chance to escape his punishment : and this may be one reason why the lex talionis is more proper to be inflicted, if at all, for crimes that consist in intention, than for such as are carried into act. It seems indeed consonant to natural reason, and has therefore been adopted as a maxim by several theoretical writers[17], that the punishment, due to the crime of which one falsely accuses another, should be inflicted on the perjured informer. Accordingly, when it was once attempted to introduce into England the law of retaliation, it was intended as a punishment for such only as preferred malicious accusations against others ; it being enacted by statute 37 Edw. III. c. 18. that such as preferred any suggestions to the king’s great council should put in sureties of taliation ; that is, to incur the same pain that the other should have had, in case the suggestion were found untrue. But, after one year’s experience, this punishment of taliation was rejected, and imprisonment adopted in it’s stead[18]
But though from what has been said it appears, that there cannot be any regular or determinate method of rating the quantity of punishments for crimes, by any one uniform rule ; but they must be referred to the will and discretion of the legislative power : yet there are some general principles, drawn from the nature and circumstances of the crime, that may be of some assistance in allotting it an adequate punishment.
As, first, with regard to the object of it : for the greater and more exalted the object of an injury is, the more care should be taken to prevent that injury, and of course under this aggravation the punishment mould be more severe. Therefore treason in conspiring the king’s death is by the English law punished with greater rigour than even actually killing any private subject. And yet, generally, a design to transgress is not so flagrant an enormity, as the actual completion of that design. For evil, the nearer we approach it, is the more disagreeable and shocking ; so that it requires more obstinacy in wickedness to perpetrate an unlawful action, than barely to entertain the thought of it : and it is an encouragement to repentance and remorse, even till the last stage of any crime, that it never is too late to retract ; and that if a man stops even here, it is better for him than if he proceeds : for which reasons an attempt to rob, to ravish, or to kill, is far less penal than the actual robbery, rape, or murder. But in the case of a treasonable conspiracy, the object whereof is the king’s majesty, the bare intention will deserve the highest degree of severity : not because the intention is equivalent to the act itself ; but because the greatest rigour is no more than adequate to a treasonable purpose of the heart, and there is no greater left to inflict upon the actual execution itself.
Again : the violence of passion, or temptation, may sometimes alleviate a crime ; as theft, in case of hunger, is far more worthy of compassion, than when committed through avarice, or to supply one in luxurious excesses. To kill a man upon sudden and violent resentment is less penal, than upon cool deliberate malice. The age, education, and character of the offender ; the repetition (or otherwise) of the offence ; the time, the place, the company wherein it was committed ; all these, and a thousand other incidents, may aggravate or extenuate the crime[19].
Farther : as punishments are chiefly intended for the prevention of future crimes, it is but reasonable that among crimes of different natures those mould be most severely punished, which are the most destructive of the public safety and happiness[20] : and, among crimes of an equal malignity, those which a man has the most frequent and easy opportunities of committing, which cannot be so easily guarded against as others, and which therefore the offender has the strongest inducement to commit : according to what Cicero observes[21], “ ea sunt animadvertenda peccata maxime, quae difficillime praecaventur. ” Hence it is, that for a servant to rob his master is in more cases capital, than for a stranger : if a servant kills his master, it is a species of treason ; in another it is only murder : to steal a handkerchief, or other trifle of above the value of twelvepence, privately from one’s person, is made capital; but to carry off a load of corn from an open field, though of fifty times greater value, is punished with transportation only. And, in the island of Man, this rule was formerly carried so far, that to take away an horse or an ox was there no felony, but a trespass ; because of the difficulty in that little territory to conceal them or carry them off: but to steal a pig or a fowl, which is easily done, was a capital misdemesnor, and the offender was punished with death[22].
Lastly, as a conclusion to the whole, we may observe that punishments of unreasonable severity, especially when indiscriminately inflicted, have less effect in preventing crimes, and amending the manners of a people, than such as are more merciful in general, yet properly intermixed with due distinctions of severity. It is the sentiment of an ingenious writer, who seems to have well studied the springs of human action[23], that crimes are more effectually prevented by the certainty, than by the severity, of punishment. For the excessive severity of laws (says Montesquieu[24]) hinders their execution: when the punishment surpasses all measure, the public will frequently out of humanity prefer impunity to it. Thus also the statute 1 Mar. ft. 1. c. 1. recites in it’s preamble, “ that the state of every king consists more assuredly in the love of the subject towards their prince, than in the dread of laws made with rigorous pains ; and that laws made for the preservation of the commonwealth without great penalties are more often obeyed and kept, than laws made with extreme punishments.” Happy had it been for the nation, if the subsequent practice of that deluded princess in matters of religion, had been correspondent to these sentiments of herself and parliament, in matters of state and government ! We may farther observe that sanguinary laws are a bad symptom of the distemper of any state, or at least of it’s weak constitution. The laws of the Roman kings, and the twelve tables of the decemviri, were full of cruel punishments : the Porcian law, which exempted all citizens from sentence of death, silently abrogated them all. In this period the republic flourished : under the emperors severe punishments were revived ; and then the empire fell.
It is moreover absurd and impolitic to apply the same punishment to crimes of different malignity. A multitude of sanguinary laws (besides the doubt that may be entertained concerning the right of making them) do likewise prove a manifest defect either in the wisdom of the legislative, or the strength of the executive power. It is a kind of quackery in government, and argues a want of solid skill, to apply the same universal remedy, the ultimum supplicium, to every case of difficulty. It is, it must be owned, much easier to extirpate than to amend mankind : yet that magistrate must be esteemed both a weak and a cruel surgeon, who cuts off every limb, which through ignorance or indolence he will not attempt to cure. It has been therefore ingeniously proposed[25], that in every state a scale of crimes should be formed, with a corresponding scale of punishments, descending from the greatest to the least : but, if that be too romantic an idea, yet at least a wise legislator will mark the principal divisions, and not assign penalties of the first degree to offences of an inferior rank. Where men see no distinction made in the nature and gradations of punishment, the generality will be led to conclude there is no distinction in the guilt. Thus in France the punishment of robbery, either with or without murder, is the same[26] : hence it is, that though perhaps they are therefore subject to fewer robberies, yet they never rob but they also murder. In China murderers are cut to pieces, and robbers not : hence in that country they never murder on the highway, though they often rob. And in England, besides the additional terrors of a speedy execution, and a subsequent exposure or dissection, robbers have a hope of transportation, which seldom is extended to murderers. This has the same effect here as in China ; in preventing frequent assasination and slaughter.
Yet, though in this stance we may glory in the wisdom of the English law, we shall find it more difficult to justify the frequency of capital punishment to be found therein ; inflicted (perhaps inattentively) by a multitude of successive independent statutes, upon crimes very different in their natures. It is a melancholy truth, that among the variety of actions which men are daily liable to commit, no less than an hundred and sixty have been declared by act of parliament[27] to be felonies without benefit of clergy ; or, in other words, to be worthy of instant death. So dreadful a list, instead of diminishing, increases the number of offenders. The injured, through compassion, will often forbear to prosecute : juries, through compassion, will sometimes forget their oaths, and either acquit the guilty or mitigate the nature of the offence : and judges, through compassion, will respite one half of the convicts, and recommend them to the royal mercy. Among so many chances of escaping, the needy and hardened offender overlooks the multitude that suffer ; he boldly engages in some desperate attempt, to relieve his wants or supply his vices ; and, if unexpectedly the hand of justice overtakes him, he deems himself peculiarly unfortunate, in falling at last a sacrifice to those laws, which long impunity has taught him to contemn.
↑ Book III. ch. 1
↑ See Vol I. p. 268.
↑ Sir Michael Foster. pref. to rep.
↑ Baron Montesquieu, marquis Beccaria, &c.
↑ See Vol II. p. 345.
↑ Stat. 9 Geo. I. c. 22. 31 Geo. II. c. 42.
↑ Stat. 5. Eliz. c. 20.
↑ See Grotius, de j. b. & p. l. 2. c. 20. Puffendorf, L. of Nat. and N. b. 8. c. 3.
↑ Gen. iv. 14.
↑ See vol. I. pag. 254.
↑ Gen. ix. 6.
↑ Book II. ch. 1.
↑ 1 Hal. P. C. 13.
↑ Grand instructions for framing a new code of laws for the Russian empire. §. 210.
↑ pro Cluentio. 46.
↑ Pott. Ant. b. 1. c. 26.
↑ Beccar. c. 15.
↑ Stat. 38. Edw. III. c. 9.
↑ Thus Demosthenes (in his oration against Midias) finely works up the aggravations of the insult hee had received. “I was abused, says he, by my enemy, in cold blood, out of malice, not by heat of wine, in the morning, publicly, before strangrs as well as citizens ; and that in the temple, whither the duty of my office called me.”
↑ Beccar. c. 6.
↑ pro Sexto Roscio, 40.
↑ 4 Inst. 285.
↑ Beccar. c. 7.
↑ Sp. L. b. 6. c. 13.
↑ Beccar. c. 6.
↑ Sp. L. b, 6. c. 16.
↑ See Ruffhead’s index to the statutes (tit. felony) and the acts which have since been made.
Chapter the second.
Of the PERSONS CAPABLE of Crimes;
HAVING, in the preceding chapter, considered in general the nature of crimes, and punishments, we are next led, in the order of our distribution, to enquire what persons are, or are not, capable of committing crimes; or, which is all one, who are exempted from the censures of the law upon the commission of those acts, which in other persons would be severely punished. In the process of which enquiry, we must have recourse to particular and special exceptions: for the general rule is, that no person shall be excused from punishment for disobedience to the laws of his country, excepting such as are expressly defined and exempted by the laws themselves.
All the several pleas and excuses, which protect the committer of a forbidden act from the punishment which is otherwise annexed thereto, may be reduced to this single consideration, the want or defect of will. An involuntary act, as it has no claim to merit, so neither can it induce any guilt: the concurrence of the will, when it has it’s choice either to do or to avoid the fact in question, being the only thing that renders human actions either praiseworthy or culpable. Indeed, to make a complete crime, cognizable by human laws, there muft be both a will and an act. For though, in foro conscientiae, a fixed design or will to do an unlawful act is almost as heinous as the commission of it, yet, as no temporal tribunal can search the heart, or fathom the intentions of the mind, otherwise than as they are demonstrated by outward actions, it therefore cannot punish for what it cannot know. For which reason in all temporal jurisdictions an overt act, or some open evidence of an intended crime, is necessary, in order to demonstrate the depravity of the will, before the man is liable to punishment. And, as a vitious will without a vitious act is no civil crime, so, on the other hand, an unwarrantable act without a vitious will is no crime at all. So that to constitute a crime against human laws, there must be, first, a vitious will ; and, secondly, an unlawful act consequent upon such vitious will.
Now there are three cafes, in which the will does not join with the act: 1. Where there is a defect of understanding. For where there is no discernment, there is no choice ; and where there is no choice, there can be no act of the will, which is nothing else but a determination of one’s choice, to do or to abstain from a particular action: he therefore, that has no understanding, can have no will to guide his conduct. 2. Where there is understanding and will sufficient, residing in the party; but not called forth and exerted at the time of the action done: which is the cafe of all offences committed by chance or ignorance. Here the will fits neuter; and neither concurs with the act, nor disagrees to it. 3. Where the action is constrained by some outward force and violence. Here the will counteracts the deed ; and is so far from concurring with, that it loaths and disagrees to, what the man is obliged to perform. It will be the businefs of the present chapter briefly to confider all the several species of defect in will, as they fall under some one or other of these general heads : as infancy, idiocy, lunacy, and intoxication, which fall under the first class ; misfortune, and ignorance, which may be referred to the second ; and compulsion or neceslity, which may properly rank in the third.
I. First, we will consider the cafe of infancy, or nonage ; which is a defect of the understanding. Infants, under the age of discretion, ought not to be punished by any criminal prosecution whatever[1] . What the age of discretion is, in various nations is matter of some variety. The civil law distinguished the age of minors, or those under twenty five years old, into three stages : infantia, from the birth till seven years of age ; pueritia, from seven to fourteen , and pubertas from fourteen upwards. The period of pueritia, or childhood, was again subdivided into two equal parts ; from seven to ten and an half was aetas infantiae proxima ; from ten and an half to fourteen was aetas pubertati proxima. During the first stage of infancy, and the next half stage of childhood, infantiae proxima, they were not punishable for any crime[2]. During the other half stage of childhood, approaching to puberty, from ten and an half to fourteen, they were indeed punishable, if found to be doli capaces, or capable of mischief ; but with many mitigations, and not with the utmosl rigor of the law. During the lasl stage (at the age of puberty, and afterwards) minors were liable to be punished, as well capitally, as otherwise.
The law of England does in some cafes privilege an infant, under the age of twenty one, as to common misdemefnors ; so as to escape fine, imprisonment, and the like : and particularly in cafes of omislion, as not repairing a bridge, or a highway, and other similar offences[3] : for, not having the command of his fortune till twenty one, he wants the capacity to do those things, which the law requires. But where there is any notorious breach of the peace, a riot, battery, or the like, (which infants, when full grown, are at least as liable as others to commit) for these an infant, above the age of fourteen, is equally liable to suffer, as a persbn of the full age of twenty one.
With regard to capital crimes, the law is still more minute and circumspect; distinguishing with greater nicety the several degrees of age and discretion. By the antient Saxon law, the age of twelve years was established for the age of possible discretion, when first the understanding might open[4]: and from thence till the offender was fourteen, it was aetas pubertati proxma, in which he might, or might not, be guilty of a crime, according to his natural capacity or incapacity. This was the dubious stage of discretion : but, under twelve, it was held that he could not be guilty in will, neither after fourteen could he be supposed innocent, of any capital crime which he in fact committed. But by the law, as it now stands, and has stood at least ever since the time of Edward the third, the capacity of doing ill, or contracting guilt, is not so much measured by years and days, as by the strength of the delinquent’s understanding and judgment. For one lad of eleven years old may have as much cunning as another of fourteen; and in these cafes our maxim is, that “malitia supplet aetatem.”Under seven years of age indeed an infant cannot be guilty of felony[5]; for then a felonious discretion is almost an impossibility in nature : but at eight years old he may be guilty of felony[6] . Also, under fourteen, though an infant shall be prima facie adjudged to be doli incapax; yet if it appear to the court and jury, that he was doli capax, and could discern between good and evil, he may be convicted and suffer death. Thus a girl of thirteen has been burnt for killing her mistress: and one boy of ten, and another of nine years old, who had killed their companions, have been sentenced to death, and he of ten years actually hanged; because it appeared upon their trials, that the one hid himself, and the other hid the body he had killed; which hiding manifested a consciousness of guilt, and a discretion to discern be tween good and evil[7] . And there was an instance in the last century, where a boy of eight years old was tried at Abingdon for firing two barns ; and, it appearing that he had malice, revenge, and cunning, he was found guilty, condemned, and hanged accordingly[8]. Thus also, in very modern times, a boy of ten years old was convicted on his own confession of murdering his bedfellow; there appearing in his whole behaviour plain tokens of a mischievous discretion : and, as the sparing this boy merely on account of his tender years might be of dangerous consequence to the public, by propagating a notion that children might commit such atrocious crimes with impunity, it was unanimously agreed by all the judges that he was a proper subject of capital punishment[9]’. But, in all such cafes, the evidence of that malice, which is to supply age, ought to be strong and clear beyond all doubt and contradiction.
II. The second cafe of a deficiency in will, which excuses from the guilt of crimes, arises also from a defective or vitiated understanding, viz. in an idiot or a lunatic. For the rule of law as to the latter, which may easily be adapted also to the former, is, that “furiosus furore solum punitur.” In criminal cases therefore idiots and lunatics are not chargeable for their own acts, if committed when under these incapacities: no, not even for treason itself[10]. Also, if a man in his found memory commits a capital offence, and before arraignment for it, he becomes mad, he ought not to be arraigned for it ; because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried ; for how can he make his defence? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced; and if, after judgment, he becomes of nonsane memory, execution shall be stayed: for peradventure, says the humanity of the English law, had the prisoner been of found memory, he might have alleged some thing in stay of judgment or execution[11] . Indeed, in the bloody reign of Henry the eighth, a slatute was made”[12], which enacted, that if a persobn, being compos mentis, should commit high treason, and after fall into madness, he might be tried in his absence, and should suffer death, as if he were of perfect memory. But this savage and inhuman law was repealed by the statute 1 & 2 Ph. & M. c. 10. For, as is observed by sir Edward Coke[13], “the execution of an offender is for example, ut pocna ad paucos, metus ad omnes perveniat: but so it is not when a madman is executed; but should be a miserable spectacle, both against law, and of extreme inhumanity and cruelty, and can be no example to others.” But if there be any doubt, whether the party be compos or not, this mall be tried by a jury. And if he be so found, a total idiocy, or absolute insanity, excuses from the guilt, and of course from the punishment, of any criminal action committed under such deprivationof the senses: but, if a lunatic hath lucid intervals of understanding, he shall answer for what he does in those intervals, as if he had no deficiency[14]. Yet, in the cafe of absolute madmen, as they are not answerable for their actions, they should not be permitted the liberty of adding unless under proper control; and, in particular, they ought not to be suffered to go loose, to the terror of the king’s subjects. It was the doctrine of our antient law, that persons deprived of their reason might be confined till they recovered their senses[15] , without waiting for the forms of a commission or other special authority from the crown: and now, by the vagrant acts[16], a method is chalked out for imprisoning, chaining, and sending them to their proper homes.
III. Thirdly; as to artificial, voluntarily contracted madness, by drunkenness or intoxication, which, depriving men of their reason, puts them in a temporary phrenzy; our law looks upon this as an aggravation of the offence, rather than as an excuse for any criminal misbehaviour. A drunkard, says sir Edward Coke[17], who is voluntarius daemon, hath no privilege thereby; but what hurt or ill soever he doth, his drunkenness doth aggravate it: nam, omne crimen ebrietas, et incendit, et detegit. It hath been observed, that the real use of strong liquors, and the abuse of them by drinking to excess, depend much upon the temperature of the climate in which we live. The same indulgence, which may be necessary to make the blood move in Norway, would make an Italian mad. A German therefore, says the president Montesquieu[18], drinks through custom, founded upon constitutional necessity; a Spaniard drinks through choice, or out of the mere wantonness of luxury: and drunkenness, he adds, ought to be more severely punished, where it makes men mischievous and mad, as in Spain and Italy, than where it only renders them stupid and heavy, as in Germany and more northern countries. And accordingly, in the warmer climate of Greece, a law of Pittacus enacted, “that he who committed a crime, when drunk, should receive a double punishment;” one for the crime itself, and the other for the ebriety which prompted him to commit it[19]. The Roman law indeed made great allowances for this vice: “per vmum delapjis capitalis poena remittitur”[20]. But the law of England, considering how easy it is to counterfeit this excuse, and how weak an excuse it is, (though real) will not suffer any man thus to privilege one crime by another[21].
IV. A fourth deficiency of will, is where a man commits an unlawful act by misfortune or chance, and not by design. Here the will observes a total neutrality, and does not co-operate with the deed; which therefore wants one main ingredient of a crime. Of this, when it affects the life of another, we shall find more occasion to speak hereafter; at present only observing, that if any accidental mischief happens to follow from the per formance of a lawful act, the party stands excused from all guilt: but if a man be doing any thing unlawful, and a consequence ensues which he did not foresee or intend, as the death of a man or the like, his want of foresight shall be no excuse; for, being guilty of one offence, in doing antecedently what is in itself unlawful, he is criminally guilty of whatever consequence may follow the fist misbehaviour[22].
V. Fifthly, ignorance or mistake is another defect of will; when a man, intending to do a lawful act, does that which is unlawful. For here the deed and the will acting separately, there is not that conjunction between them, which is necessary to form a criminal act. But this musb be an ignorance or mistake of fact, and not an error in point of law. As if a man, intending to kill a thief or housebreaker in his own house, by mistake kills one of his own family, this is no criminal action[23]: but if a man thinks he has a right to kill a person excommunicated or outlawed, wherever he meets him, and does so; this is wilful murder. For a mistake in point of law, which every person of discretion not only may, but is bound and presumed to know, is in criminal cases no sort of defence. Ignorantia juris, quod quifque tenetur fcire, neminem excufat, is as well the maxim of our own law [24] as it was of the Roman[25].
VI. A sixth species of defect of will is that arising from compulsion and inevitable necessity, These are a constraint upon the will, whereby a man is urged to do that which his judgment disapproves; and which, it is to be presumed, his will (if left to itself) would reject. As punishments are therefore only inflicted for the abuse of that free-will, which God has given to man, it is highly just and equitable that a man mould be excused for those acts, which are done through unavoidable force and compulsion. 1. OF this nature, in the firft place, is the obligation of civil subjection, whereby the inferior is constrained by the superior to act contrary to what his own reason and inclination would sugge{ls}}t: as when a legislator establishes iniquity by a law, and commands the subject to do an act contrary to religion or sound morality. How far this excuse will be admitted in foro confcientiae, or whether the inferior in this cafe is not bound to obey the divine, rather than the human law, it is not my business to decide ; though the question I believe, among the casuists, will hardly bear a doubt. But, however that may be, obedience to the laws in being is undoubtedly a sufficient extenuation of civil guilt before the municipal tribunal. The sheriff, who burnt Lativner and Ridley, in the bigotted days of queen Mary, was not liable to punishment from Elizabeth, for executing so horrid an office; being justified by the commands of that magistracy, which endeavoured to restore superstition under the holy auspices of it’s merciless sister, persecution.
As to persons in private relations; the principal case, where constraint of a superior is allowed as an excuse for criminal misconduct, is with regard to the matrimonial subjection of the wife to her husband: for neither a son or a servant are excused for the commission of any crime, whether capital or otherwise, by the command or coercion of the parent or master[26]; though in some cafes the command or authority of the husband, either express or implied, will privilege the wife from punishment, even for capital offences. And therefore if a woman commit theft, burglary, or other civil offences against, the laws of society, by the coercion of her husband; or merely by his command, which the law construes a coercion; or even in his company, his example being equivalent to a command ; she is not guilty of any crime : being considered as acting by compulsion and not of her own will[27]. Which doctrine is at least a thousand years old in this kingdom, being to be found among the laws of king Ina the Weft Saxon d . And it appears that, among the nor- thern nations on the continent, this privilege extended to any woman tranfgreffing in concert with a man, and to any fervant that committed a joint offence with a freeman : the male or freeman only was punifhed, the female or flave difmiffed ; ” proculdubio quod alter urn liber t as, alter urn necejjitas mpelkrei"" But (befldes that in our law, which is a ftranger to ilavery, no impunity is given to fervants, who are as much free agents as their matters) even with regard to wives, this rule admits of an exception in crimes that are mala in fe, and prohibited by the law of nature, as murder and the like : not only becaufe thefe are of a deeper dye ; but alfo, fince in a ftate of nature no one is in fubjection to another, it would be unreafonable to fcreen an offender from the punishment due to natural crimes, by the refinements and fubordinations of civil fociety. In treafon alfo, (the higheft crime which a member of fociety can, as fuch, be guilty of) no plea of coverture mall excufe the wife ; no pre- fumption of the hufband’s coercion mail extenuate her guilt f : as well becaufe of the odioufnefs and dangerous confequence of the crime itfelf, as becaufe the hufband, having broken through the moft facred tie of focial community by rebellion againfl the ftate, has no right to that obedience from a wife, which he himfelf as a fubject has forgotten to pay. In inferior mifde- mefnors alfo, we may remark another exception ; that a wife may be indicted and fet in the pillory with her hufband, for keeping a brothel : for this is an offence touching the domeftic oeconomy or government of the houfe, in which the wife has a principal mare -, and is alfo fuch an offence as the law pre- fumes to be generally conducted by the intrigues of the female fex 6 . And in all cafes, where the wife offends alone, without the company or command of her hufband, Ihe is refponfible for her offence, as much as any feme-fole. ff. 57. ’ i Hal. P. 0.47. Stiernhoob dt jure Suea/i. 1. z. ?. 4, s j Hawk. P. C. 2, 3. 2. AN2. ANOTHER fpecies of compuliicm or neceflity is what our law calls durefs per mi?ias h ; or threats and menaces, which in- duce a fear of death or other bodily harm, and which take away for that reafon the guilt of many crimes and mifdemefnors ; at leaft before the human tribunal. But then that fear, which compels a man to do an unwarrantable action, ought to be juft and well grounded ; fuch, ” qul cadere pojjit in virum conftantem, ” non timidiun et meticiilofum” as Bracton exprefTes it’, in the words of the civil law k . Therefore, in time of war or rebel- lion, a man may be justified in doing many treafonable acts by compulfion of the enemy or rebels, which would admit of no excufe in the time of peace 1 . This however feems only, or at leaft principally, to hold as to pofitive crimes, fo created by the laws of fociety ; and which therefore fociety may excufe ; but not as to natural offences, fo declared by the law of God, wherein human magiftrates are only the executioners of divine puniihment. And therefore though a man be violently aflaulted, and hath no other poflible means of efcaping death, but by killing an innocent perfon ; this fear and force mail not acquit him of murder; for he ought rather to die himfelf, than efcape by the murder of an innocent 1 ”. But in fuch a cafe he is per- mitted to kill the affailant ; for there the law of nature, and felf-defence it’s primary canon, have made him his own pro- tector. 3. THERE is a third fpecies of neceffity, which may be diftinguiihed from the actual compulfion of external force or fear ; being the refult of reafon and reflection, which act upon and conftrain a man’s will, and oblige him to do an action, which without fuch obligation would be criminal. And that is, when a man has his choice of two evils fet before him, and, being under a neceffity of chooiing one, he chufes the leaft ” Sec Vol. I. pag. 131. ’ i Hal. P. C. 50. ’ /. 2./. 1 6. ni ind. 51.
Ff. 4. 2. 5, tf 6.
pernicious Ch. 2. WRONGS. 31 pernicious of the two. Here the will cannot be faid freely to exert itfelf, being rather paffi ve, than active ; or, if active, it is rather in rejecting the greater evil than in chooling the lefs. Of this fort is that neceffity, where a man by the commandment of the law is bound to arreft another for any capital offence, or to difperfe a riot, and reliftance is made to his authority : it is here juftifiable and even necefTary to beat, to wound, or per- haps to kill the offenders, rather than permit the murderer to efcape, or the riot to continue. For the prefervation of the peace of the kingdom, and the apprehending of notorious ma- lefactors, are of the utmoft confequence to the public ; and therefore excufe the felony, which the killing would other- wife amount to”. 4. T H E R E is yet another cafe of neceffity, which has occa- fioned great fpeculation among the writers upon general law ; viz. whether a man in extreme want of food or clothing may juflify ftealing either, to relieve his prefent neceffities. And this both Grotius and Puffendorf p , together with many other of the foreign jurifts, hold in the affirmative ; maintaining by many ingenious, humane, and plaufible reafons, that in fuch cafes the community of goods by a kind of tacit conceffion of fociety is revived. And fome even of our own lawyers have held the fame q ; though it feems to be an unwarranted doctrine, borrowed from the notions of fome civilians : at lead it is now antiquated, the law of England admitting no fuch excufe at prefent’. And this it’s doctrine is agreeable not only to the fentiments of many of the wifefl antients, particularly Cicero 8 , who holds that ” fuum cuique incommodum ferendum eft, potius ” quam de alterius commodis detrahendum;” but alfo to the Jewiih law, as certified by king Solomon himfelf ( : ” if a thief fleal to ” fatisfy his foul when he is hungry, he fhall reftore fevenfold, i Hal. P. C. 53. ’ I Hal. P. C. 54. de jure b. & p. 1. z. c. 2. * de if. I. 3 . c. 5. I” L. of Nat. and N. 1. 2. c. 6. ’ Prov. vi. 30. S Briton, c. 10. Mirr. c. 4. . 16. ” and ” and lhall give all the fubftance of his houfe :” which was the ordinary punifhment for theft in that kingdom. And this is founded upon the higheft reaibn : for men’s properties would be under a ftrange infecurity, if liable to be invaded according to the wants of others ; of which wants no man can pofTibly be an adequate judge, but the party himfelf who pleads them. In this country eipecially, there would be a peculiar impro- priety in admitting ib dubious an excufe : for by our laws iuch fufticient provifion is made for the poor by the power of the civil magiftrate, that it is impoffible that the moil needy ftranger fliould ever be reduced to the neceffity of thieving to fupport nature. This cafe of a ftranger is, by the way, the ftrongeft inftance put by baron Puftendorf, and whereon he builds his principal arguments : which, however they may hold upon the continent, where the parfimonious induftry of the natives orders every one to work or ftarve, yet muft lofe all their weight and efficacy in England, where charity is reduced to a fyftem, and interwoven in our very conftitution. Therefore our laws ought by no means to be taxed with being unmerciful, for denying this privilege to the neceffitous ; efpecially when we confider, that the king, on the reprefentation of his minifters of juftice, hath a power to foften the law, and to extend mercy in cafes of peculiar hardfhip. An advantage which is wanting in many- Hates, particularly thofe which are democratical : and thefe have in it’s ftead introduced and adopted, in the body of the law itfelf, a multitude of circumftances tending to alleviate it’s ri- gour. But the founders of our conftitution thought it better to veft in the crown the power of pardoning particular objedls of compaffion, than to countenance and eftablifh theft by one ge- jjeral undiftinguifhing law. VII. IN the feveral cafes before-mentioned, the incapacity of committing crimes arifes from a deficiency of the will. To thefe we may add one more, in which the law fuppofes an incapacity of doing wrong, from the excellence and perfection of the per- fon > fon ; which extend as well to the will as to the other qualities of his mind. I mean the cafe of the king: who, by virtue of his royal prerogative, is not under the coercive power of the law*; which will not fuppofe him capable of committing a folly, much lefs a crime. We are therefore, out of reverence and decency, to forbear any idle enquiries, of what would be the confequence if the king were to adt thus and thus : fince the law deems fo highly of his wifdom and virtue, as not even to prefume it poffible for him to do any thing inconliftent with his flation and dignity ; and therefore has made no provifion to remedy fuch a grievance. But of this fufficient was faid in a former volume”, to which I muft refer the reader. i Hal. P. C. 44. * Book I. ch. 7. pag. 244. VOL. IV. E
↑ 1 Hawk. P. C. 2
↑ Inst. 3. 20. 10.
↑ 1 Hal. P. C. 20, 21, 22.
↑ LL. Athelstan. Wilk. 65.
↑ Mirr. c. 4. §. 16. 1 Hal.P.C. 27.
↑ Dalt. Just. c. 147.
↑ 1 Hal. P C. 26, 27.
↑ Emlyn on 1 Hal. P. C. 25.
↑ Foster. 72.
↑ 3 Inst.6.
↑ 1 Hal. P. C. 34.
↑ 33 Hen. VIII. c. 20.
↑ 3 Inst. 6.
↑ 1 Hal. P.C. 31.
↑ Bro. Abr. tit. corone. 101.
↑ 17 Geo. II. c.5.
↑ 1 Inst. 247.
↑ Sp. L. b.14. c.10.
↑ Puff. L. of N. b.8. c.3.
↑ Ff. 49. 16. 6.
↑ Plowd. 19.
↑ 1 Hal. P.C. 39.
↑ Cro. Car. 538.
↑ Plowd. 343.
↑ Ff. 22. 6. 9.
↑ 1 Hawk. P.C. 3.
↑ 1 Hal. P. C. 45.
Chapter the fifteenth.
Of the Offences against the Persons of Individuals.
Having in the preceding chapter considered the principal crime, or public wrong, that can be committed against a private subject, namely, by destroying his life; I proceed now to enquire into such other crimes and misdemesnors, as more peculiarly affect the security of his person, while living.
Of these some are felonious, and in their nature capital; others are simple misdemesnors, and punishable with a lighter animadversion. Of the felonies the first is that of mayhem.
I. Mayhem, mahemium, was in part considered in the preceding volume[1] as a civil injury: but it is also looked upon in a criminal light by the law; being an atrocious breach of the king’s peace, and an offence tending to deprive him of the aid and assistance of his subjects. For mayhem is properly defined to be, as we may remember, the violently depriving another of the use of such of his members, as may render him the less able in fighting, either to defend himself, or to annoy his adversary[2]. And therefore the cutting off, or disabling, or weakening a man’s hand or finger, or striking out his eye or foretooth, or depriving him of those parts, the loss of which in all animals abates their courage, are held to be mayhems. But the cutting off his ear, or nose, or the like, are not held to be mayhems at common law ; because they do not weaken but only disfigure him.
By the antient law of England he that maimed any man, whereby he lost any part of his body, was sentenced to lose the like part; membrum pro membro[3]: which is still the law in Sweden[4]. But this went afterwards out of use: partly because the law of retaliation, as was formerly shewn[5], is at best an inadequate rule of punishment; and partly because upon a repetition of the offence the punishment could not be repeated. So that, by the common law, as it for a long time stood, mayhem was only punishable with fine and imprisonment[6]; unless perhaps the offence of mayhem by castration, which all our old writers held to be felony; “et sequitur aliquando poena capitalis, aliquando perpetuum exilium, cum omnium bonorum ademptione[7].” And this, although the mayhem was committed upon the highest provocation[8].
But subsequent statutes have put the crime and punishment of mayhem more out of doubt. For, first, by statute 5 Hen. IV. c. 5. to remedy a mischief that then prevailed, of beating, wounding, or robbing a man, and then cutting out his tongue or putting out his eyes, to prevent him from being an evidence against them, this offence is declared to be felony, if done of malice prepense; that is, as sir Edward Coke[9] explains it, voluntarily and of set purpose, though done upon a sudden occasion. Next, in order of time, is the statute 37 Hen. VIII. c. 6. which directs, that if a man shall maliciously and unlawfully cut off the ear of any of the king’s subjects, he shall not only forfeit treble damages to the party grieved, to be recovered by action of trespass at common law, as a civil satisfaction; but also 10. l. by way of fine to the king, which was his criminal amercement. The last statute, but by far the most severe and effectual of all, is that of 22 & 23 Car. II. c. 1. called the coventry act; being occasioned by an assault on sir John Coventry in the street, and slitting his nose, in revenge (as was supposed) for some obnoxious words uttered by him in parliament. By this statute it is enacted, that if any person shall of malice aforethought, and by lying in wait, unlawfully cut out or disable the tongue, put out an eye, slit the nose, cut off a nose or lip, or cut off or disable any limb or member of any other person, with intent to maim or to disfigure him; such person, his counsellors, aiders, and abettors, shall be guilty of felony without benefit of clergy[10].
Thus much for the felony of mayhem: to which may be added the offence of wilfully and maliciously shooting at any person, which may endanger either killing or maiming him. This, though no such evil consequence ensues, is made felony without benefit of clergy by statute 9 Geo. I. c. 22. and thereupon one Arnold was convicted in 1723, for shooting at lord Onslow; but, being half a madman, was never executed, but confined in prison, where he died about thirty years after.
II. The second offence, more immediately affecting the personal security of individuals, relates to the female part of his majesty’s subjects; being that of their forcible abduction and marriage; which is vulgarly called stealing an heiress. For by statute 3 Hen. VII. c. 2. it is enacted, that if any person shall for lucre take any woman, being maid, widow, or wife, and having substance either in goods or lands, or being heir apparent to her ancestors, contrary to her will; and afterwards she be married to such misdoer, or by his consent to others, or defiled; such person, and all his accessories, shall be deemed principal felons: and by statute 39 Eliz. c. 9. the benefit of clergy is taken away from all such felons, except accessories after the offence.
In the construction of this statute it hath been determined, 1. That the indictment must allege that the taking was for lucre, for such are the words of the statute[11]. 2. In order to shew this, it must appear that the woman has substance either real or personal, or is an heir apparent[12]. 3. It must appear that she was taken away against her will. 4. It must also appear, that she was afterwards married, or defiled. And though possibly the marriage or defilement might be by her subsequent consent, being won thereunto by flatteries after the taking, yet this is felony, if the first taking were against her will[13]: and so vice versa, if the woman be originally taken away with her own consent, yet if she afterwards refuse to continue with the offender, and be forced against her will, she may, from that time, as properly be said to be taken against her will, as if she never had given any consent at all; for, till the force was put upon her, she was in her own power[14]. It is held that a woman, thus taken away and married, may be sworn and give evidence against the offender, though he is her husband de facto; contrary to the general rule of law: because he is no husband de jure, in case the actual marriage was also against her will[15]. In cases indeed where the actual marriage is good, by the consent of the inveigled woman obtained after her forcible abduction, sir Matthew Hale seems to question how far her evidence should be allowed: but other authorities[16] seem to agree, that it should even then be admitted; esteeming it absurd, that the offender should thus take advantage of his own wrong, and that the very act of marriage, which is a principal ingredient of his crime, sould (by a forced construction of law) be made use of to stop the mouth of the most material witness against him.
An inferior degree of the same kind of offence, but not attended with force, is punished by the statute 4 & 5 Ph. & Mar. c. 8. which enacts, that if any person, above the age of fourteen, unlawfully shall convey or take away any woman child unmarried, (which is held[17] to extend to bastards as well as to legitimate children) within the age of sixteen years, from the possession and against the will of the father, mother, guardians, or governors, he shall be imprisoned two years, or fined at the discretion of the justices: and if he deflowers such maid or woman child, or, without the consent of parents, contracts matrimony with her, he shall be imprisoned five years, or fined at the discretion of the justices, and she shall forfeit all her lands to her next of kin, during the life of her said husband. So that as these stolen marriages, under the age of sixteen, were usually upon mercenary views, this act, besides punishing the seducer, wisely removed the temptation. But this latter part of the act is now rendered almost useless, by provisions of a very different kind, which make the marriage totally void[18], in the statute 26 Geo. II. c. 33.
III. A third offence, against the female part also of his majesty’s subjects, but attended with greater aggravations than that of forcible marriage, is the crime of rape, raptus mulierum, or the carnal knowlege of a woman forcibly and against her will. This, by the Jewish law[19], was punished with death, in case the damsel was betrothed to another man; and, in case she was not betrothed, then a heavy fine of fifty shekels was to be paid to the damsel’s father, and she was to be the wife of the ravisher all the days of his life; without that power of divorce, which was in general permitted by the mosaic law.
The civil law[20] punishes the crime of ravishment with death and confiscation of goods: under which it includes both the offence of forcible abduction, or taking away a woman from her friends, of which we last spoke; and also the present offence of forcibly dishonouring them; either of which, without the other, is in that law sufficient to constitute a capital crime. Also the stealing away a woman from her parents or guardians, and debauching her, is equally penal by the emperor’s edict, whether she consent or is forced: “sive volentibus, sive nolentibus mulieribus, tale facinus fuerit perpetratum.” And this, in order to take away from women every opportunity of offending in this way; whom the Roman laws suppose never to go astray, without the seduction and arts of the other sex: and therefore, by restraining and making so highly penal the selicitations of the men, they meant to secure effectually the honour of the women. “Si enim ipsi raptores metu, vel atrocitate poenae, ab hujusmodi facinore se temperaverint, nulli mulieri, sive volenti, sive nolenti, peccandi locus relinquetur; quia hoc ipsum velle mulierum, ab insidiis nequissimi hominis, qui meditatur rapinam, inducitur. Nisi etenim eam solicitaverit, nisi odiosis artibus circumvenerit, non faciet eam velle in tantum dedecus sese prodere.” But our English law does not entertain quite such sublime ideas of the honour of either sex, as to lay the blame of a mutual fault upon one of the transgressors only: and therefore makes it a necessary ingredient in the crime of rape, that it must be against the woman’s will.
Rape was punished by the Saxon laws, particularly those of king Athelstan[21], with death: which was also agreeable to the old Gothic or Scandinavian constitution[22]. But this was afterwards thought too hard: and in it’s stead another severe, but not capital, punishment was inflicted by William the conqueror; viz, castration and loss of eyes[23]; which continued till after Bracton wrote, in the reign of Henry the third. But in order to prevent malicious accusations, it was then the law, (and, it seems, still continues to be so in appeals of rape[24]) that the woman should immediately after, “dum recens fuerit maleficium,” go to the next town, and there make discovery to some credible persons of the injury she has suffered; and afterwards should acquaint the high constable of the hundred, the coroners, and the sheriff with the outrage[25]. This seems to correspond in some degree with the laws of Scotland and Arragon[26], which require that complaint must be made within twenty four hours: though afterwards by statute Westm. 1. c. 13. the time of limitation in England was extended to forty days. At present there is no time of limitation fixed: for, as it is usually now punished by indictment at the suit of the king, the maxim of law takes place, that nullum tempus occurrit regi: but the jury will rarely give credit to a stale complaint. During the former period also it was held for law[27], that the woman (by consent of the judge and her parents) might redeem the offender from the execution of his sentence, by accepting him for her husband; if he also was willing to agree to the exchange, but not otherwise.
In the 3 Edw. I. by the statute Westm. 1. c. 13. the punishment of rape was much mitigated: the offence itself being reduced to a trespass, if not prosecuted by the woman within forty days, and subjecting the offender only to two years imprisonment, and a fine at the king’s will. But, this lenity being productive of the most terrible consequences, it was in ten years afterwards, 13 Edw. I. found necessary to make the offence of rape felony, by statute Westm. 2. c. 34. And by statute 18 Eliz. c. 7. it is made felony without benefit of clergy: as is also the abominable wickedness of carnally knowing or abusing any woman child under the age of ten years; in which case the consent or non-consent is immaterial, as by reason of her tender years she is incapable of judgment and discretion. Sir Matthew Hale is indeed of opinion, that such profligate actions committed on an infant under the age of twelve years, the age of female discretion by the common law, either with or without consent, amount to rape and felony; as well since as before the statute of queen Elizabeth[28]: but the law has in general been held only to extend to infants under ten.
A male infant, under the age of fourteen years, is presumed by law incapable to commit a rape, and therefore it seems cannot be found guilty of it. For though in other felonies malitia supplet aetatem, as has in some cases been shewn; yet, as to this particular species of felony, the law suppofes an imbecillity of body as well as mind[29].
The civil law seems to suppose a prostitute or common harlot incapable of any injuries of this kind[30]: not allowing any punishment for violating the chastity of her, who hath indeed no chastity at all, or at least hath no regard to it. But the law of England does not judge so hardly of offenders, as to cut off all opportunity of retreat even from common strumpets, and to treat them as never capable of amendment. It therefore holds it to be felony to force even a concubine or harlot; because the woman may have forsaken that unlawful course of life[31]: for, as Bracton well observes[32], “licet meretrix fuerit antea, certe tunc temporis non fuit, cum reclamando nequitiae ejus consentire noluit.”
As to the material facts requisite to be given in evidence and proved upon an indictment of rape, they are of such a nature, that though necessary to be known and settled, for the conviction of the guilty and preservation of the innocent, and therefore are to be found in such criminal treatises as discourse of these matters in detail, yet they are highly improper to be publicly discussed, except only in a court of justice. I shall therefore merely add upon this head a few remarks from sir Matthew Hale, with regard to the competency and credibility of witnesses; which may, salvo pudore, be considered.
And, first, the party ravished may give evidence upon oath, and is in law a competent witness; but the credibility of her testimony, and how far forth she is to be believed, must be left to the jury upon the circumstances of fact that concur in that testimony. For instance: if the witness be of good fame; if she presently discovered the offence, and made search for the offender; if the party accused fled for it; these and the like are concurring circumstances, which give greater probability to her evidence. But, on the other side, if she be of evil fame, and stand unsupported by others; if she concealed the injury for any considerable time after she had opportunity to complain; if the place, where the fact was alleged to be committed, was where it was possible she might have been heard, and she made no outcry; these and the like circumstances carry a strong, but not conclusive, presumption that her testimony is false or feigned.
Moreover, if the rape be charged to be committed on an infant under twelve years of age, she may still be a competent witness, if she hath sense and understanding to know the nature and obligations of an oath; and, even if she hath not, it is thought by sir Matthew Hale[33] that she ought to be heard without oath, to give the court information; though that alone will not be sufficient to convict the offender. And he is of this opinion, first, because the nature of the offence being secret, there may be no other possible proof of the actual fact; though afterwards there may be concurrent circumstances to corroborate it, proved by other witnesses: and, secondly, because the law allows what the child told her mother, or other relations, to be given in evidence, since the nature of the case admits frequently of no better proof; and there is much more reason for the court to hear the narration of the child herself, than to receive it at second hand from those who swear they heard her say so. And indeed it is now settled, that infants of any age are to be heard; and, if they have any idea of an oath, to be also sworn: it being found by experience that infants of very tender years often give the clearst and truest testimony. But in any of these cases, whether the child be sworn or not, it is to be wished, in order to render her evidence credible, that there should be some concurrent testimony, of time, place and circumstances, in order to make out the fact; and that the conviction should not be grounded singly on the unsupported accusation of an infant under years of discretion. There may be therefore, in many cases of this nature, witnesses who are competent, that is, who may be admitted to be heard; and yet, after being heard, may prove not to be credible, or such as the jury is bound to believe. For one excellence of the trial by jury is, that the jury are triors of the credit of the witnesses, as well as of the truth of the fact.
“It is true, says this learned judge[34], that rape is a most detestable crime, and therefore ought severely and impartially to be punished with death; but it must be remembered, that it is an accusation easy to be made, hard to be proved, but harder to be defended by the party accused, though innocent.” He then relates two very extraordinary cases of malicious prosecution for this crime, that had happened within his own observation; and concludes thus: “I mention these instances, that we may be the more cautious upon trials of offences of this nature, wherein the court and jury may with so much ease be imposed upon, without great care and vigilance; the heinousness of the offence many times transporting the judge and jury with so much indignation, that they are overhastily carried to the conviction of the person accused thereof, by the confident testimony of sometimes false and malicious witnesses.”
IV. What has been here observed, especially with regard to the manner of proof, which ought to be the more clear in proportion as the crime is the more detestable, may be applied to another offence, of a still deeper malignity; the infamous crime against nature, committed either with man or beast. A crime, which ought to be strictly and impartially proved, and then as strictly and impartially punished. But it is an offence of so dark a nature, so easily charged, and the negative so difficult to be proved, that the accusation should be clearly made out: for, if false, it deserves a punishment inferior only to that of the crime itself.
I will not act so disagreeable part, to my readers as well as myself, as to dwell any longer upon a subject, the very mention of which is a disgrace to human nature. It will be more eligible to imitate in this respect the delicacy of our English law, which treats it, in it’s very indictments, as a crime not fit to be named; “peccatum illud horribile, inter christianos non nominandum[35].” A taciturnity observed likewise by the edict of Constantius and Constans[36]; “ubi scelus est id, quod non proficit scire, jubemus insurgere leges, armari jura gladio ultore, ut exquisitis poenis subdantur infames, qui sunt, vel qui futuri sunt, rei.” Which leads me to add a word concerning it’s punishment.
This the voice of nature and of reason, and the express law of God[37], determine to be capital. Of which we have a signal instance, long before the Jewish dispensation, by the destruction of two cities by fire from heaven: so that this is an universal, not merely a provincial, precept. And our antient law in some degree imitated this punishment, by commanding such miscreants to be burnt to death[38]; though Fleta[39] says they should be buried alive: either of which punishments was indifferently used for this crime among the antient Goths[40]. But now the general punishment of all felonies is the same, namely, by hanging: and this offence (being in the times of popery only subject to ecclesiastical censures) was made felony without benefit of clergy by statute 25 Hen. VIII. c. 6. revived and confirmed by 5 Eliz. c. 17. And the rule of law herein is, that, if both are arrived at years of discretion, agentes et consentientes pari poena plectantur[41].
These are all the felonious offences, more immediately againsl the personal security of the subject. The inferior offences, or misdemesnors, that fall under this head, are assaults, batteries, wounding, false imprisonment, and kidnapping.
V, VI, VII. With regard to the nature of the three first of these offences in general, I have nothing farther to add to what has already been observed in the preceding book of these commentaries[42]; when we considered them as private wrongs, or civil injuries, for which a satisfaction or remedy is given to the party aggrieved. But, taken in a public light, as a breach of the king’s peace, an affront to his government, and a damage done to his subjects, they are also indictable and punishable with fine and imprisonment; or with other ignominious corporal penalties, where they are committed with any very atrocious design[43]. As in case of an assault with an intent to murder, or with an intent to commit either of the crimes last spoken of; for which intentional assaults, in the two last cases, indictments are much more usual, than for the absolute perpetration of the facts themselves, on account of the difficulty of proof: and herein, besides heavy fine and imprisonment, it is usual to award judgment of the pillory.
There is also one species of battery, more atrocious and penal than the rest, which is the beating of a clerk in orders, or clergyman; on account of the respect and reverence due to his sacred character, as the minister and embassador of peace. Accordingly it is enacted by the statute called articuli cleri, 9 Edw. II. c. 3. that if any person lay violent hands upon a clerk, the amends for the peace broken shall be before the king; that is by indictment in the king’s courts: and the assailant may also be sued before the bishop, that excommunication or bodily penance may be imposed: which if the offender will redeem by money, to be given to the bishop, or the party grieved, it may be sued for before the bishop; whereas otherwise to sue in any spiritual court, for civil damages for the battery, falls within the danger of praemunire[44]. But suits are, and always were, allowable in the spiritual court, for money agreed to be given as a commutation for penance[45]. So that upon the whole it appears, that a person guilty of such brutal behaviour to a clergyman, is subject to three kinds of prosecution, all of which may be pursued for one and the same offence: an indictment, for the breach of the king’s peace by such assault and battery; a civil action, for the special damage sustained by the party injured; and a suit in the ecclesiastical court, first, pro correctione et salute animae by enjoining penance, and then again for such sum of money as shall be agreed on for taking off the penance enjoined: it being usual in those courts to exchange their spiritual censures for a round compensation in money[46]; perhaps because poverty is generally esteemed by the moralists the best medicine pro salute animae.
VIII. The two remaining crimes and offences, against the persons of his majesty’s subjects, are infringements of their natural liberty: concerning the first of which, false imprisonment, it’s nature and incidents, I must content myself with referring the student to what was observed in the preceding volume[47], when we considered it as a mere civil injury. But, besides the private satisfaction given to the individual by action, the law also demands public vengeance for the breach of the king’s peace, for the loss which the state sustains by the confinement of one of it’s members, and for the infringement of the good order of society. We have before seen[48], that the most atrocious degree of this offence, that of sending any subject of this realm a prisoner into parts beyond the seas, whereby he is deprived of the friendly assistance of the laws to redeem him from such his captivity, is punished with the pains of praemunire, and incapacity to hold any office, without any possibility of pardon[49]. Inferior degrees of the same offence of false imprisonment are also punishable by indictment (like assaults and batteries) and the delinquent may be fined and imprisoned[50]. And indeed[51] there can be no doubt, but that all kinds of crimes of a public nature, all disturbances of the peace, all oppressions, and other misdemesnors whatsoever, of a notoriously evil example, may be indicted at the suit of the king.
IX. The other remaining offence, that of kidnapping, being the forcible abduction or stealing away of man, woman, or child from their own country, and selling them into another, was capital by the Jewish law. “He that stealeth a man, and selleth him, or if he be found in his hand, he shall surely be put to death[52].” So likewise in the civil law, the offence of spiriting away and stealing men and children, which was called plagium, and the offenders plagiarii, was punished with death[53]. This is unquestionably a very heinous crime, as it robs the king of his subjects, banishes a man from his country, and may in it’s consequences be productive of the most cruel and disagreeable hardships; and therefore the common law of England has punished it with fine, imprisonment, and pillory[54]. And also the statute 11 & 12 W. III. c. 7. though principally intended against pirates, has a clause that extends to prevent the leaving of such persons abroad, as are thus kidnapped or spirited away; by enacting, that if any captain of a merchant vessel shall (during his being abroad) force any person on shore, or wilfully leave him behind, or refuse to bring home all such men as he carried out, if able and desirous to return, he shall suffer three months imprisonment. And thus much for offences that more immediately affect the persons of individuals.
↑ See Vol. III. pag. 121.
↑ Brit. l. 1. c. 25. 1 Hawk. P. C. 111.
↑ 3 Inst. 118.—Mes, fi la pleynte soit faite de femme qu’ acera tollet a home ses membres, en tiel case perdra la feme la une meyn par jugement, come le membre dount ele avera trespasse. (Brit. c. 25.)
↑ Stiernhook de jure Sueon. l. 3. c. 3.
↑ See pag. 12.
↑ 1 Hawk. P. C. 112.
↑ Bract. fol. 144.
↑ Sir Edward Coke (3 Inst. 62.) has transcribed a record of Henry the third’s time, (Claus. 13 Hen. III. m. 9.) by which a gentleman of Somersetshire and his wife appear to have been apprehended and committed to prison, being indicted for dealing thus with John the monk, who was caught in adultery with the wife.
↑ 3 Inst. 62.
↑ On this statute Mr. Coke, a gentleman of Suffolk, and one Woodburn, a labourer, were indicted in 1722; Coke for hiring and abetting Woodburn, and Woodburn for the actual fact, of slitting the nose of Mr. Crispe, Coke’s brother in law. The case was somewhat singular. The murder of Crispe was intended, and he was left for dead, being terribly hacked and disfigured with a hedge bill; but he recovered. Now the bare intent to murder is no felony: but to disfigure, with an intent to disfigure, is made so by this statute; on which they were therefore indicted. And Coke, who was a disgrace to the profession of the law, had the effrontery to rest his defence upon this point, that the assault was not committed with an intent to disfigure, but with an intent to murder; and therefore not within the statute. But the court held, that if a man attacks another to murder him with such an instrument as a hedge bill, which cannot but endanger the disfiguring him; and in such attack happens not to kill, but only to disfigure him; he may be indicted on this statute: and it shall be left to the jury whether it were not a design to murder by disfiguring, and consequently a malicious intent to disfigure as well as to murder. Accordingly the jury found them guilty of such previous intent to disfigure, in order to effect their principal intent to murder, and they were both condemned and executed. (State Trials. VI. 212.)
↑ 1 Hawk. P. C. 110.
↑ 1 Hal. P. C. 660. 1 Hawk. P. C. 109.
↑ 1 Hal. P. C. 660.
↑ 1 Hawk. P. C. 110.
↑ 1 Hal. P. C. 661.
↑ Cro. Car. 488. 3 Keb. 193. State Trials V. 445.
↑ Stra. 1162.
↑ See Vol. 1 pag. 437, &c.
↑ Deut. xxii. 25.
↑ Cod. 9. tit. 13.
↑ Bracton. l. 3. c. 28.
↑ Stiernh. de jure Sueon. l. 3. c. 2.
↑ LL. Guil. Conqu. c. 19.
↑ 1 Hal. P. C. 632.
↑ Glanv. l. 14. c. 6. Bract. l. 3. c. 28.
↑ Barington. 107.
↑ Glanv. l. 14. c. 6. Bract. l. 3. c. 28.
↑ 1 Hal. P. C. 631.
↑ Ibid.
↑ Cod. 9. 9. 22. Ff. 47. 2. 39.
↑ 1 Hal. P. C. 629. 1 Hawk. P. C. 108.
↑ fol. 157.
↑ 1 Hal. P. C. 634.
↑ 1 Hal. P. C. 635.
↑ See in Rot. Parl. 50. Edw. III. n. 58, a complaint, that a Lombard did commit the sin “that was not to be named.” (12 Rep. 37.)
↑ Cod. 9. 9. 31.
↑ Levit. xx. 13. 15.
↑ Brit. c. 9.
↑ l. 1. c. 37.
↑ Stiernh. de jure Goth. l. 3. c. 2.
↑ 3 Inst. 59.
↑ See Vol. III. pag. 120.
↑ 1 Hawk. P. C. 65.
↑ 2 Inst. 492. 620.
↑ Artic. Cler. 9 Edw. II. c. 4. F. N. B. 53.
↑ 2 Rol. Rep. 384.
↑ See Vol. III. pag. 127.
↑ See pag. 116.
↑ Stat. 31 Car. II. c. 2.
↑ West. Symbol. part 2. pag. 92.
↑ 1 Hawk. P. C. 210.
↑ Exod. xxi. 16.
↑ Ff. 48. 15. 1.
↑ Raym. 474. 2 Show. 221. Skin. 47. Comb. 10.
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