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UNIVERSITY OF MICHIGAN
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VERITAS
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SCIENTIA
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BRITISH PREMIERS.-The following is a list of
British Premiers during the last century:---
In Office.
Appointed.
Premiers.
Y18. Dys.
1754, April & Duke of Newcastle..
8 63
176?, May 29 Barl of Bute,
0 322
1763, April 16 G. Grenville.
2 87
1765, July 12 Marquis of Rookingham...
1 . 21
1766, August 21 Duke of Grafton.
3 179
1770, January 28 Lord North.
12 34
1782, 11arch 3 Marquis of Rockingham,
132
1782, July 13 Earl of Shelburne, .
0 266
1783, April 5 Duke of Portland.
260
1783, December 27 William Pitt...
80
1801, Yaroh 17 Lord Sidmouth,
3 56
1814, May 12 Villiam Pitt..
1 21
1806, January 8 Lord Grenville..
1 64
1807, Maroh 13 Duke of Portland,
3 102
1830. June 23 Spencer Peroival.
I 350
1812 June 8 Earl of Liverpool.
14 307
1827, April 11 George Canning.
0 121
1827, August 101 Lord Goderich.,..
0 168
1828, January 25 Duke of Wellington.....
2 301
1830, November 22 Earl Grey...
3 231
1834, July 11 Lord Melbourne...
0 128
1884, November 16 Duke of Wellington...
0 22
1831, December 8 Sir Robert Peel.
0 131
1835, April, 18 Lord Melbourne.
6 188
1841, September 3 Sir Robert Peel..
4 97
1915, Decomber 10 Lord John Russoll..
0 10
1845, December 20 Sir Robert Poel.,
0 188
1846, June 26 Lord John Russell..
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From the D.
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4. Meniton
CONCISE VIEW
OF THE
Aandeni
/861
Constitution of England.
BY GEORGE CUSTANCE.
THIRD EDITION, IMPROVED AND ENLARGED.
What nation is there so great, that hath statutes and
judgments so righteous ?
Deut. iv. 8.
“ Est sane respublica nostra propè divinitus initio constituta, usque
adeò ut nulla unquam vel Grecæ vel Romanæ civitatis constitutio fuerit
perfectior; imo, nec Plato nec Aristoteles nec legumlatorum ullus meli-
orem civitatis formam cogitatione comprehendere potuit; tam suavi enim
concentu et quasi barmonicà tres pervulgatæ rerumpublicarum formæ in
unam speciem tam parantur, ut nec Aristoxeni tibiam, nec Timothei
fides modulatiores fuisse putem.”
Memoirs of the Life of Sir Willium Jones. Appendix vit.
LONDON:
PRINTED FOR LONGMAN, HURST, REES, ORME, AND
PROWN, PATERNOSTER-ROW,
214
I 80
c99
Cntered at Stationer's Hall.
Gotier and Peonell, Printers,
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O 30 others
ADVERTISEMENT.
The two former impressions of this work
were in duodecimo; but the assurance which the
Author has received from the Booksellers, that a
handsome volume suited to the Library has been
very generally called for, has determined him
to send forth the third edition in the present im-
proved form.
TO
WILLIAM WILBERFORCE, ESQ.
PIEMBER OF PARLIAMENT FOR THE COUNTY OF YORK,
WHOSE PHILANTHROPY AND ELOQUENCE
WERE EXERTED NEARLY TWENTY YEARS IN A FREE SENATE,
FOR THE ABOLITION OF THE SLAVE TRADE,
SO LONG THE REPROACH OF GREAT-BRITAIN;
WHOSE PERSEVERING ZEAL IN THE CAUSE OF HUMANITY,
AFTER SUSTAINING REPEATED REPULSES,
AT LENGTH OBTAINED A SIGNAL VICTORY OVER
AVARICE AND INJUSTICE, CRUELTY AND OPPRESSION;
WHOM THOUSANDS,
« WHO WERE READY TO PERISH,” BLESS;
AND
WHOSE NAME WILL BE HAD IN GRATEFUL REMEMBRANCE
BY MILLIONS YET UNBORN;
THE FOLLOWING WORK,
IS,
WITH HIS PERMISSION,
HUMBLY INSCRIBED,
BY THE AUTHOR.
KIDDERMINSTER, SEPTEMBER 1st, 1808.
CONTENTS.
Page.
25
34
42
52
58
71
100
114
136
141
Chapter
I. Or Laws in general,
II. Of the Laws of England,
III. Of Countries subject to the Laws of England,
IV. Of the absolute Rights of Individuals,
V. Of the Legislative Power,
VI. The same Subject coutinued,
VII. The same Subject continued,
VIII. Of the Executive Power,
IX. Of the Royal Family,
X. Of the Councils,
XI. Of the Duties of the King,
XII. Of the Royal Prerogative,
XIII. Of the Revenue,
XIV. Of the Magistracy,
XV. Of the People,
XVI. Of the Clergy,
XVII. Of Dissenters,
XVIII. Of the Civil State,
XIX. Of the Army and Navy,.
XX. Of Corporations,
XXI. Of the Feudal System,
XXII. Of last Wills and Testaments,
XXIII. Of the Liberty of the Press,
XXIV. Of Courts in general,
XXV. Of public Courts,
XXVI, Of Trial in Civil Actions,
147
151
167
182
195
199
216
225
238
.
247
255
262
.
273
283
288
302
CONTENTS.
Chapter
XXVII. Of Courts of Equity,.
XXVIII. Of Punishment,
XXIX. Of Homicide,
XXX. Of Courts of Criminal Jurisdiction,
XXXI. Of the Proceedings in Criminal Cases,
XXXII. The same Subject continued,
XXXIII. The same Subject continued,
XXXIV. The same Subject continued,
Conslusion,
Page.
. 318
326
335
346
355
362
381
398
412
PREFACE.
At no period of the history of England was an
acquaintance with its constitution more necessary
than at the present. There is, indeed, no lack of
professional knowledge of the subject. We have
only to attend upon the different courts, to be con-
vinced, that the profoundest erudition is combined
with the most inflexible integrity, as well in the
advocate who pleads our cause, as in the judge
who expounds the law. But whilst every English-
man experiences the effects of impartial justice,
very few understand the nature of the source
from which it flows. Many a man knows the
advantages of possessing silver and gold, who
never descended into the earth to explore the rich
and extensive mines that furnish these precious
metals. At a time, therefore, when our govern-
ment is threatened with destruction by a cruel
and relentless foe, how desirable is it that a kuow-
ledge of that unrivalled constitution under which
it is our happiness to live, should be generally
diffused through all ranks of society. The books
10
PREFACE.
on this subject already before the public, are too
voluminous and learned to answer this end.
The design, then, of the following work, is
simply to instruct the rising generation in the
fundamental principles of that admirable consti-
tution which equalises the rights of all, from the
king to the peasant; which is venerable for its
antiquity, because it was founded upon freedom,
in the earliest ages; which many of our forefathers
defended by their swords; and which every Briton
should be ready to seal with his blood.
There is, indeed, in every Englishman, a sort
of hereditary affection for the constitution and
government, which disseminates a general spirit
of loyalty throughout the land; yet many truly
loyal persons are incapable of defending their
principles, when attacked by evil and designing
men ; who under the pretence of patriotism, have
nothing in view but their own aggrandizement.
Doubtless, one great cause of political discontent,
is the almost total ignorance of constitutional
principles, which pervades the greater part of the
community. They who are acquainted with the
system of the English government, cannot but
value it as being the source of our civil and reli-
gious liberty; and therefore must admire it more
PREFACE.
and more in proportion as they view and coinpre-
hend the secret springs which regulate all its
motions. How important, then, to every English-
man, is a knowledge of the "origin, nature, and
safeguards of government and civil liberty; of
“ the principles of public and municipal law;'and
“ of the theory of political, commercial, financial,
“and military administration."*
The superior excellence of the British constitu-
tion consists in that happy union of monarchical,
aristocratical, and democratical government, which,
whilst it secures from the evils attendant on each,
amply supplies the collective benefits of all. In
this triangular glass, the beauties of our political
economy are clearly discerned in all their rich
variety of shade.
The English is precisely that form of govern-
ment which the Roman orator pronounced to be
the best possible, inasmuch as he conceived that
it neither provoked to rebellion by the severe
infliction of punishment, nor led to a licentious
anarchy by its total neglect.t Such a government,
Tacitus likewise imagined to be the most beneficial
* See lord Grenville's beautiful Preface to lord Chatham's Letters to
his Nephew.
+ Cic. de Repub, lib. ii.
12
PREFACE.
of any; although he thought that it was rather to
be lioped for than expected; and if ever adopted,
that it could not long continue* But in this
happy island, the speculations of these great men
have been realized. · England is the favoured soil
which early received the seeds, gradually nourished
the plant, and has at length matured the only
“ tree of liberty” that has been found to shelter
beneath its branches, person, property, and life,
froin the scorching beams of every kind of tyranny.
Not that perfection attaches to our constitution,
or that it is free froin abuse; but there is a
constant tendency in it to correct the latter, and
promote the former. Perhaps the author may be
thought to carry bis partiality too far in considering
the English Constitution as the very perfection of
human wisdom. He does not, indeed, conceive
it possible for the limitted intellect of man to
inodel a government more complete in theory; nor
does he believe, whilst human nature continues
what it is, that it is in the power of any nation to
secure to all its subjects a larger measure of true
practical liberty, than Britons enjoy under their
existing constitution. It would, however, be the
height of folly to deny that very serious departures
* Tać. Auin. lib. iv. sec. 33.
PREFACE.
13
from first principles have crept in; but the English
constitution possesses this peculiarity, that it can
legally and peaceably renew itself. It can, by coolly
deliberating, effect that reformation which in other
countries may be attempted, but can never be
accomplished by popular clamour and violence.
The blessings which Britons inherit are so
singular, and so eminently distinguish their go-
vernment and nation from all others, that it is
impossible for the contemplative mind not to con-
fess the author of them to be divine. That the
minutest concerns of kingdoms and states are all
ordered according to the infinite wisdom of an
overruling Providence, few will deny. They then
who believe that the conquest of Canaan by the
Israelites was a consequence of Joseph's telling his
dreams to his brethren, will have no doubt that
the settlement of the protestant church of England
under queen Elizabeth was the effect of the mar-
riage of Henry VIII. with his brother's widow:
or, that the levying of the shipmoney by Charles I.
was a part of the scaffolding erected to build the
throne of the house of Brunswick. The author
therefore makes no apology for having occasionally
made a moral reflection, as he conceives none will
be thought necessary by wise and good men.
14
PREFACE.
The author disclaims all pretension to origi-
nality in the following work. He professes only to
have compiled such a number of facts as might
convey to young persons a tolerably correct idea
of an important and interesting subject; and he
hopes that this volume, like the smaller end of a
telescope, will bring those objects nearer that are
placed at too great distance from the generality
of readers in more expensive works.
The intelligent reader will readily perceive that
the Author in this compilation, has principally
made use of Blackstone's Commentaries, of De
Lolme on the English Constitution, of Burke on
the French Revolution, and of Hume's History
of England, with Smollet's Continuation. He is
also much indebted to Burn's Ecclesiastical Law,
to Gibson's Codex, to Furneaux's Letters to
Blackstone, and to other Authors of established
credit. He would think himself highly culpable,
did he not cordially embrace this opportunity of
acknowledging the kindness of many judicious
friends, to whom he is under obligations for a
Fariety of valuable suggestions.
INTRODUCTION.
pocas
There is much propriety in the remark which
has been often made, that religion sustains more
injury from the wounds inflicted by pretended
friends, than from the aşsaults of her avowed
enemies. The writings of deists, from time to
time, have uniformly called forth the zeal and
talents of the advocates of christianity; and the
collision of controversy has produced the sparks
of truth, which gradually kindling, and at length
bursting into a flame, have illumined the minds
of thousands, who would otherwise have remained
in Pagan darkness. In short, the more christi-
anity is investigated, the better it will be under-
stood; and the better it is understood, the more
it will be valued.The same may be said with
regard to the English Constitution.
The seditious productions of disloyalty, have
stirred up many to write in defence of that govern-
ment, under whose benign influence we continue
to enjoy such inestimable blessings, whilst other
nations have suffered from the licentiousness of
1
?
Xvi.
INTRODUCTION.
anarchy, and are still groaning under the oppres-
sion of military despotism. Thus thousands have
been instructed in the principles of the British
constitution, by political writers; and in propor-
tion as they have made themselves acquainted
with the foundation upon which that constitution
rests, they have become attached to its interests,
and felt a 'lively concern for its permanency and
prosperity. The revolutionary storms, which of
late have dashed in pieces the governments of
other nations, have, we trust, more firmly fixed
the anchor of ours in every British heart, and thus
preserved us, under Divine Providence, from the
general wreck.
A competent knowledge of the fundamental
principles of the constitution, is not only an
essential accomplishment of every English gen-
tleman and scholar; but is also a desirable acqui-
sition for all ranks of men amongst us, from the
highest to the lowest.
Experience teaches us that early impressions
are not easily eflaced from the mind; an elemen-
tary knowledge, therefore, of the English govern-
ment; cannot be inculcated too soon, nor too
generally diffused. The beauties of our constitu-
tion should be engraven, rather than painted,
upon the minds of our youth; and the sooner
the skill of the artist is employed in this impor-
tant work, the better. The Romans were very
sensible of the advantages which the state would
derive from the political cultivation of the minds
1
INTRODUCTION.
xvii.
of their children. Hence their boys were taught
.to commit to memory the twelve tables, as a
necessary lesson, not only that they might obtain
a knowledge of their laws and government, but
feel also a veneration for them.* There surely is
not less reason to inform the minds of youth on
such a subject in England than in Rome. And
if attachment and obedience to the laws were in
any degree the fruit of a heathen education, what
good effects may not be expected when loyalty
is grafted on the minds of our children upon
christian principles !
In the instruction of young persons, however,
in the principles of the constitution, one great
point to be attended to, is to inculcate on every
one a reverence of those branches of the legisla-
ture from which his own rank excludes him.
Self-importance will readily induce the young
prince, who hopes one day to wear the crown,
to admirew the monarchical part of our system;
but it will be more difficult to make him under-
stand, that the two houses of parliament are the
very pillars which give stability to the throne.
Again, the noble stripling will soon learn and be
delighted with his own consequence in the state,
arising from those hereditary honours and privi-
leges to which he is born; but he will probably
* "Discebamus enim pueri xii (tabulas) ut carmen necessarium."
Cic. de legib. lib. 2. sec. 23..
B
xviii.
INTRODUCTION.
be more slow in comprehending the benefits which
his own order derives either from the king or
the commous. So, likewise, the commoner will
eagerly adopt the speculative notions, that all
power originates with the people, and that no man
'ought to be taxed without his own consent; but
tell him that his liberty could not long exist were
it not for the strong. barrier of the house of lords,
which prevents the popular torrent in a stormy
day, froin sweeping away the throne; tell him,
that it is every way better for him, that the king
alone should execute the laws, than that they
should be administered by any number of his
subjects; and he will probably reply, “these are
" hard sayings, who can hear them?”
Every Englishman is interested in the preser-
vation of the government, and therefore ought, in
some degree, to be acquainted with its maxims:
without some knowledge of which, he exposes
himself to the censure and inconvenience of living
in society without understanding his own relation
to it.
A certain degree of knowledge of the constitu-
tion will be very useful even to the lower orders of
society. The mechanic and peasant who under-
stand something of those fundamental principles
which secure to thein their lives and liberties,
will not be easily drawn aside from their loyalty
by the insidious arts of pretended patriots. When
they fully comprehend the advantages of subordi-
pation of rank, they will be content with the
INTRODUCTION:
xixi
station in which Providence has fixed them; at
least, they will endeavour to rise to a higher
situation only by acquitting themselves well in the
place which they now occupy. The community
will naturally appear to them like a regular army,
in which there is only one commander in chief, a
few field officers, soine captains, subalterns, and
non-commissioned officers, with a numerous bat-
talion of rank and file. They will perceive that
the safety of all depends upon the united skill and
bravery of the whole; and hence, like well disci-
plined troops, every man will be found watching
.
at his post.
The science of government, as a branch of
polite literature, deserves to be cultivated by the
members of the three learned professions. It
would, indeed, be quite superfluous to observe,
that this science ought to be well studied by
every larryer, were it not obvious that a man may
be a very accurate practical conveyancer and yet
be very ignorant of the theory of the constitution,
of the origin of our laws and customs, and of the
changes which from time to time they have
undergone. Just as a medical man may by mere
habit and experience adopt a successful routine of
practice, without having even read a system of
anatomy, or knowing any thing of the science of
physiology,
It is desirable that medical men should possess
such a knowledge of the law, as will enable them
to acquit themselves with credit in courts of
—
INTRODUCTION.
justice, when called upon to give their evidence
in various instances of medical jurisprudence; and
particularly in cases of infanticide and insanity.
It sometimes happens, too, that medical men
are suddenly called in to sick persons who have
not made any legal arrangement of their temporal
affairs ; the equitable distribution of whose pro-
perty is of the utmost importance to the future
happiness of their families. In such cases, and
where the physician apprehends a fatal termina-
tion of the disorder, it behoves him in a suitable
manner to apprize at least the near relatives of
the patient of his real danger, in order that they
may point out to him the propriety of settling his
concerns. *
. And as the matter is sometimes very
urgent, either from the hazard of delay, or from
the unseasonableness of the hour, it will often be
of great advantage if the medical attendant under-
stand the law so far at least as it regards the
execution of last wills and testaments.
A competent knowledge of the law will be both
ornamental and useful to clergymeth It will not
only give them a brighter polish as gentlemen, but
will also enable them to understand many things
that are connected with their profession: such as,
advowsons, simony, tithes, marriages, and other
ecclesiastical matters. The character, too, of a
clergyman, as a messenger of peace, makes it his
bounden duty to promote the temporal as well as
Gregory on the Duties and Qualifications of a Physician.
INTRODUCTION.
xxi.
eternal peace of his parishioners, by all prudent
means: and the influence which his rank gives
him in the parish, ought to be uniformly employed
for this two-fold purpose. Many opportunities
will be afforded a clergyman, especially in villages,
of adjusting the differences between his neigh-
bours, and thus preventing expensive litigations.
If, however, he be ignorant of the laws, he will
either mislead the disputants, or must altogether
decline the pleasing office of a peacemaker. But
if he be tolerably acquainted with them, he may
summon his contentious neighbours to the bar of
reason, and boldly ask, “Is it so, that there is
“not a wise man among you ? no not one that
“ shall be able to judge between his brethren?
“ But brother goeth to law with brother. Now,
therefore, there is utterly a fault among you,
“ because ye go to law one with another."
Gentlemen of rank and fortune are particularly
inexcusable if they remain ignorant of the laws
of their country; without a certain knowledge of
which, they cannot properly discharge the duties
of their respective stations. For let it be remem-
bered, that rank, and riches, and learning, and
influence, are all talents committed to individuals
by a kind Providence for the public good. These
great advantages are not bestowed to enable their
possessors to squander them in expensive dissipa-
tion, or waste their own time in splendid idleness.
On the contrary, where much is given, much will
be required, Persons, therefore, distinguished by
xxii.
INTRODUCTION.
the bounties of Providence, should enquire how
they may best employ the gifts with which they
are favoured, for the good of their fellow creatures
and the honour of God. The far greater part of
gentlemen, indeed, must be content with doing
what good they can within the sphere of their
influence, as private men. A few, however, will
be called upon to appear as public characters.
Some will be appointed to the magistracy. But
how can they distribute justice to their fellow
subjects without such a knowledge of the laws as
they had opportunities of acquiring, and which it
was their duty to have obtained.
Ignorance of the constitution and laws will be
peculiarly disreputable to him who aspires to the
honour of a seat in parliament. A candidate thus
disqualified, can, in fact, desire to fill iso respon-
sible a situation only from the low motive of
gratifying his vanity and ambition; and the ob-
taining of it would probably produce no better
effect than to increase that self-importance which
induced him to add one to the plialanx of a party,
And surely he must be altogether unworthy of the
dignified name of a senator, who is so incompe-
tent to act as a public counsellor. How can he
with any propriety consent to a new law, who is
ignorant of the old one which it is meant to alter
or repeal? The physician who is unacquainted
with the qualities and effects of the medicines in
daily use, must be a very unfit person to consult
about a new remedy for any disorder..
!
1
INTRODUCTION.
xxiji.
But the obligation which is laid upon every
nobleman to make himself thoroughly acquainted .
with the constitution and laws of his country, is
still greater; inasmuch as he is a hereditary coun-
sellor of the crown, and judge over the lives of
his peers and the property of all the subjects of
the realm. And when he reflects, that he is a
member of that high court whose sentence in the
last resort is irrevocable; when he considers, that
of the determination of this high tribunal there
can be no correction nor even a review, and that
from it there can be no appeal; how indispensably
necessary must it appear to him that he should
well understand the laws of the land.
Above all, how highly important it is, that all
those personages should be well instructed and
grounded in the true principles of the British
constitution, whose exalted birth renders it pos-
sible that they may one day be called to sway the
royal sceptre.* The king of England is the
greatest of all monarchs so long as his conduct is
regulated by the laws. The art of reigning is his
profession; which, like all other professions, must
be well learned to be successfully practised.
The merited fate of James II. furnishes an useful
lesson by which our kings may learn how greatly
their authority and safety will be endangered by
* If the reader wish to have his inind impressed with thie
importance of this sentiment, he is referred to that excellent
work entitled " Hints towards forming the Character of a
young Princess."
xxiv.
INTRODUCTION.
going beyond the constitutional bounds. It was
the misfortune of France, that the power of her
monarchs was never accurately defined by any
written laws. It is the happiness of England,
that the royal prerogative is clearly ascertained ;
and the glory of her king, that he has never once
during his extended reign, stepped over the pre-
scribed limits of his authority. It is this regard
to the laws, that secures the British throne, be-
cause it fixes it upon the permanent basis of the
hearts of the people, instead of making it depen-
dant on the instability of military power. So
long, therefore, as the sovereign manifests a due
attachment to the laws, he cannot fail to be loved,
obeyed, and defended, by his brave and loyal
subjects. And indeed the uninterrupted integrity
with which the laws have been administered by
the princes of the house of Hanover, is the best
pledge which Englishmen can have that the
" threefold bond which ties our constitution toge-
" ther," will never be torn asunder by any future
monarch of that illustrious race. If, then, a know-
ledge of her admirable constitution were duly
cultivated by all ranks of the community, Eng-
land would not be disappointed in “expecting
every man to do his duty,"
CONSTITUTION OF ENGLAND.
CHAP. I.
OF LAWS IN GENERAL.
The term Law, in a restricted sense, may be
defined, to be the rule of human action, implying
those precepts by which man is commanded to
make use of his reason in the general regulation of
his conduct.
There are, however, different kinds of Law, to
which men, in general, are subjected. There is
the Law of Nature, dictated by God himself;
to whose will, man, as an absolutely dependant
creature, is necessarily bound in all points unre-
servedly to submit. This law is coeval with man-
kind, is binding upon all men, in all countries and
at all times; and no human laws are of any validity
if contrary to it. Both its existence and univer-
sality are demonstrated by the voice of conscience,
heard in secret by every man, whether Christian,
с
26
Jew, Mahometan, or Pagan. “All men are a law
“ unto themselves; which shew the works of the
“ law written in their hearts, their conscience also
“ bearing witness, and their thoughts the mean
“ while accusing, or else excusing, one another."
There is also the Law of Revelation; or that
divine law which is to be found only in the holy
scriptures. It corresponds with the original law
of nature; and comprehends both the moral law
and those positive institutions which God has re-
served for himself the right to enact, and with
which, as a rational creature, man must comply;
because the manifestation of the divine will is a,
sufficient reason why he should do so. This
divine Revelation, God was pleased, at “sundry
times, and in divers manners, to give in time
past unto the fathers, by the prophets, but hath
- in these last days spoken unto us by his Son,"
and his Apostles, in compassion to the imperfection
and blindness of our reason. The weight of all
human laws rests upon these two laws of Revela-
tion and Nature; that is, they are not binding
upon the conscience if suffered to contradict them.
There is likewise the Law of Nations ; or that
law which depends entirely upon the rules of
natural law; or upon mutual compacts, treaties,
and leagues, between the several communities of
mankind. This law, which is a kind of public
* See Dr. WILLIAMS's elaborate Essay on the Equity of divine
Government, page 54.
27
rule arising out of public policy, appears to have
been instituted by general consent in Europe,
about the time the feodal system began to crumble
under its own weight. The rights and duties of
the various Sovereignties were then distinctly
marked; and the princes of the civilized world,
soon considering their different empires as blended
in one immense commonwealth, came at length to
be governed by a moral sense of mutual obligations,
and regulated by what (from its ģenerality) was
denominated the law of nations.
That this law is binding on the consciences of
rulers, is very evident, from various parts of the
old testament; and from “ truce breakers” being
classed in the new with “traitors," and those who
are “lovers of pleasures, more than lovers of God.”
A wilful and unjust violation, therefore, of public
treaties, will probably bring down upon the
offending nation, the righteous judgments of the
Almighty. *
Martial Law, is a prompt, arbitrary, and vio-
lent method of decision by military execution. A
dreadful procedure which is usually adopted in
times of rebellion, in virtue of the royal prerogative,
to avoid the dangers arising from thetardiness of the
proceedings in the established courts of law. The
kings of England, however, have not always limited
Compare Joshua ix, from 15 to the 21 ver. with 2 Sam.
xxi, 1.
c2
28
the exercise of this law to times of civil commotion,
In 1552, king Edward VI. granted a commission
of martial law, when there was no rebellion or
insurrection: and queen Elizabeth finding that
neither the lord mayor nor the star chamber could
repress the disorders occasioned by the idle vaga-
bonds who infested the streets of London, gave a
commission to Sir Thomas Wilford, to execute
such offenders “speedily by martial law.” But
in our day, the proclaiming of martial law in any
part of the united kingdom would probably not
be adopted without the sanction of the whole
legislature.
Again, the Municipal lau, is that rule of civil
conduct which is prescribed by the supreme power
in a state. This law is called a rule, because it is
a mattter of injunction which must be obeyed;
and is distinguished from counsel or advice, which
may be followed or not, as a man sees fit. It
differs also from a compact or agreement: the
language of a compact being, “I will, or will not
“ do thus;" that of law, “thou shalt, or shalt not
66 do it:" and hence the law is defined to be a rule.
But this municipal law, is called also a rule of
civil conduct; because it regards man as a citizen,
bound to other duties towards his neighbour, than
than those of mere nature and revelation : duties
which he has engaged in, by enjoying the benefits of
the common union; and which amount to no more,
than that he do coutribute, on his part, to the
subsistence and peace of the society. But the
29
Y
bare resolution confined to the breast of the legis-
lator, without manifesting itself by some external
sign, can never be properly a law; and therefore
this municipal law, is a rule prescribed. The
resolution of the legislator must be made known
to the people who are to obey it: this may be done
in various ways, either by universal tradition and
long usage, as is the case of the common law of
England; or vivá voce, by proper officers appointed
for that purpose, as is done with regard to procla-
mations and acts to be publickly read in churches;
or by writing or printing, as is the general course
taken with all our acts of parliament. But this
civil rule of conduct must be prescribed by the
supreme power in the state. Sovereignty and legis-
lature are not capable of subsisting one without
the other; and the latter being the greatest act of
superiority that can be exercised by one being over
another, it is requisite to the very essence of a
law, that it be made by the supreme power.
Now there are certain qualities which are requi-
site for supremacy: namely; wisdom, goodness,
and power; and where these are most likely to be
found, there the sovereign authority should be
placed by the founders of different states, either
expressly, or by their tacit consent. This supre-
macy admits of different modifications, and hence
have arisen those various forms of government
noticed by ancient political writers. These have
been usually considered under three heads, (viz.)
30.
0
Democracy, when the sovereign power is lodged in
an aggregate assembly, consisting of all the free
members of a community: Aristocracy, when it
is deposited in a council, composed of select
members: and Monarchy, when it is intrusted in
the hands of a single person. Each of these forms
has its peculiar excellencies. A Democracy is
usually best calculated to direct the end of a law;
Aristocracy, to invent the means by which that
end shall be obtained ; and, a Monarchy, to carry
those means into execution.
The British constitution partakes of the advan-
tages of the three forms, whilst it is happily ex-
empted from the anarchy of the first, the insolence
and oppression of the second, and the tyranny of
the third. The sovereignty or power of making
laws being lodged in the King, Lords, and Com-
mons, the subjects of Great-Britain derive all the
benefits which can be obtained from any human
government; for in no other shape could we be so
certain of finding the three great qualities of su-
premacy so well and so happily united; to the
exclusion of most of those obvious inconveniencies
which are necessarily the result of any form of
unmixed government.
We see then, that the right of the sovereign
power to make laws, arises from that political
union by which all persons consent to submit their
own private wills, to the will of those to whom the
supreme power and authority are intrusted. For
as man cannot enjoy the advantages of civilized
31
society without parting with some of his natural
rights; so experience teaches us, that it is best
for a community of individuals to delegate their
right of governing themselves to a few persons,
who are most qualified by their wisdom to make
such laws as will be for the mutual benefit of the
whole.
But since the people are bound to conform them-
selves to the will of the state, it is expedient that
they receive directions from it, declaratory of its
will. Hence it follows, that it is the duty of the
supreme power, not only to make laws, which are
to ascertain the boundaries of right and wrong" ;
but also to adopt certain methods of commanding
the one, and prohibiting the other.
Now every law may be said to consist of four
parts; one declaratory, whereby the rights to be
observed, and the wrongs to be avoided, are clearly
defined ;--- another directory, whereby the subject
is instructed and enjoined to observe those rights
and 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 ;-and lastly the sanction, whereby
it is signified what penalty shall be incurred by
those whº commit any public wrongs, and trans-
gress or neglect their duty. Yet every thing
human is imperfect, and the wisdom and sagacity
of man cannot, in framing a law, provide for every
uforeseen circumstance. And as words are often
so indefinite as to admit of different constructions,
32
and as obsolete terms often make that very obscure,
which was formerly exceedingly obvious; it is very
proper, that some rules should be observed re-
specting the interpretation of laws.
The most rational method to interpret the will
of the legislator, is by exploring his intentions at
the time 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 consequences, or the spirit and reason
of the law.
With regard to words, they are generally to be
understood in their usual and most known signifi-
cation; not merely regarding the propriety of
grammar, but also their general and popular use.
And if words happen to be dubious, their meaning
may be established from the context. It may be
of singular use to compare a word, or a sentence,
whenever it is ambiguous, equivocal, or intricate.
Thus the preamble is often called in to help the
construction of an act of parliament.
Again, words are always to be understood as
having a regard to the subject matter of an act.
Thus when a law of Edward III. forbids all eccle-
siastical persons to purchase provisions at Rome,
it might seem to prohibit the buying of grain; but
when it it is considered that the statute was made
to repress the papal usurpations, and that the
nominations to benefices by the Pope were called
Provisions, we shall see that the restraint is in-
tended to be laid only on such provisions.
33
And in respect to the effects and consequences of
an act, where words bear none, or a very absurd
signification, if literally understood, we must a
little deviate from the received sense of them.
But the most universal and effectual way of disco-
vering 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 legislature to
enact it; and from this method of interpreting laws
by the reason of them, arises what is called equity;
by which is meant the correction of that, wherein
the law (by reason of its universality) is deficient.
Lastly, there is the Law and Custom of Par-
liament, which constitutes one branch of the com-
mon law, and rests upon the same principle of
ancient usage, as those various laws, which secure
to us all our unrivalled blessings; but which have
at different periods been either confirmed or al-
tered by the legislature. “All our law,” said
lord chief justice Wilmot, “ began by consent of
- the legislature, and whether it is now law by
usage or writing is the same thing.'
CHAP. II.
OF THE LAWS OF ENGLAND.
The municipal law of England, or the rule of civil
conduct, may be divided into two kinds: the
unwritten, or common law; and the written, or
statute law
The common law, again, is distinguishable into
three kinds, namely, general customs; the particu-
lar customs of certain parts of the kingdom; and
likewise those particular laws that are by custom
observed only in certain courts and jurisdictions.---
The goodness of a custom receives its weight and
authority from its having been used time out of
mind.
General customs, or the common law, properly
so called, is that law by which proceedings and
determinations in the king's ordinary courts of jus-
tice are guided and directed. This, for the most
part, settles an infinite number of particulars, which
diffuse themselves as extensively as the ordinary
distribution of common justice requires.
These customs are to be ascertained, and their
validity to be determined, by the judges in the
several courts of justice. They are the deposi-
tories of the laws; the living oracles, who must
35
resolve all cases of doubt, and who are bound by
an oath to decide according to the law of the land.
At their creation, the judges swear, that they
“ will serve the king, and indifferently administer
“justice to all men, whether rich or poor, without
respect of
persons; that they will take no bribe;
give no counsel where they are parties, nor deny
“right to any, though the king, or any other, by
letters or by express words should command the
contrary.” And in default of duty, they are an-
swerable to the king in body, lands and goods.
18 Edward III. ch. 4.
The judges obtain a knowledge of the common
law from being long personally accustomed to the
judicial decisions of their predecessors; and
those decisions are the principal and most autho-
ritative evidence that can be given of the existence
of such a custom as shall form a part of the com-
mon law.
The doctrine of the law is, that rules and pre-
cedents must be followed: when any critical ques-
tion, therefore arises, in the determination of which
former precedents may give light and assistance,
recourse is had to the registers of the judgments
of cases, and all proceedings previous thereto,
which are carefully preserved, under the name of
records, in public repositories set apart for that
purpose. The decisions of the judges are handed
down to posterity in numerous volumes of reports,
which are short histories of cases, taken down by
persons present at the determination.
S6
The second branch of the unwritten law, are
those particular customs which affect only the inha-
bitants of particular districts. Which customs, or
or some of them, are doubtless the remains of a
multitude of local customs; out of which the com-
mon law as it now stands, was at first collected by
king Alfred, and afterwards by king Edgar, and
king Edward the confessor; each district mutually
sacrificing some of its 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, parti-
cular 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.
Gavelkind is one of these particular customs, and
still obtains in Kent and some other parts of Eng-
land; but was abolished in Ireland in 1604. This
custom ordains, amongst other things, that not
the eldest son only of the father shall succeed to
his inheritance, but all the sons alike. And for-
merly, during the feodal system, if any of the family
died after partition was made, his portion was not
shared out among his sons, but the chieftain made
a new partition, at his discretion, of the lands of
the deceased among the surviving brothers.
Such likewise is the custom of borough-english,
an ancient tenure, by which, younger sons inherit
family estates; a custom which still exists in Kent
37
L
and some other parts of the kingdom. It seems
to have originated in very early times among the
Tartars, whose eldest sons emigrating, the young-
est remained with their fathers, and were taken
care of by them.
And such also are many particular customs
within the city of London, with regard to trade,
apprentices, widows, orphans, and a variety of
other matters, which are good only by special
usage.
The rules relating to particular customs regard
either the proof of their existence, their legality
when proved, or the usual method of allowance.
As to gavelkind and borough-english, the law
takes particular notice of them; and there is no
occasion to prove that such customs actually exist,
but only that the lands in question are subject
thereto.
With regard to the rules of proof; in other cases
it must be observed, that all private customs must
be pleaded, and as well the existence of such cus-
toms must be shewn, as that the thing in dispute
is within the custom alledged. The trial in botlı
cases is by a jury of twelve men, and not by
the judges: but if the existence of a custom of
London be brought in question, it is tried by cer
tificate from the Lord Mayor and Aldermen, by the
mouth of their Recorder; unless it be such a
custom as the corporation itself is interested in.
But after a custom is proved to exist, there are
several things requisite to establish its legality, or
38
to make it a good custom; as that it has been so
long used, that the memory of man runneth not to
the contrary. It must have been continued; as,
any interruption of the right would cause a tempo-
rary ceasing; and a revival of it gives it a new
beginning, which will be within the memory of
man. It must have been peaceable and acquiesced
in; not subject to contention and dispute. Cus-
toms inust not be unreasonable; they ought to be
certain, they must be (when established) compul-
sory; and not left to the option of every man, whether
he will use them or not. And lastly, they must be
consistent with each other; for one custon cannot
be set up in opposition to another.
With respect to the allowance of special customs;
it may be remarked, that customs, in derogation
of the common law, must be construed strictly;
and all special customs must submit to the king's
prerogative. Therefore if the king purchase lands
of the nature of gavelkind, at his demise his eldest
son alone shall succeed to those lands.
A third branch of the common law, are those
peculiar laus, which, by custom, are adopted and
used only in certain courts and jurisdictions.
Such, for instance, are the civil and canon laws.
By the former is generally understood, the civil or
municipal law of the Roman empire, as comprised
in the institutes, the code, and the digests of
Justinian; and the novel constitutions of himself
and some of his successors. By the canon law, is
meant a body of Roman ecclesiastical law, relative
39
to such matters over which that church either has,
or pretends to have, the proper jurisdiction.
The courts in which the civil and canon laws
are permitted (under certain restrictions) to be
used, are the courts of the archbishops and bishops,
called the ecclesiastical courts; the military courts;
the courts of admiralty; and the courts of the two
universities. In all, their reception in general, and
the different degrees of that reception, are grounded
entirely upon custom.
It is necessary to remark a few particulars rela-
tive to them all: and first, The courts of common
law have the superintendency over these courts,
to restrain them. Secondly, 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 lastly, 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.
The written laws of the kingdom are now to be
noticed; or those statutes, acts, or edicts, which
are made by the king's Majesty, by and with the
advice and consent of the Lords spiritual and
temporal in parliament assembled; and these are
general or special, public or private.
A general or public act of parliament, is an uñi-
versal rule that regards the whole community;
and of this the courts of law are bound to take
notice judicially and ex officio:
40
t
Special or private acts, are rather exceptions
than rules, being those which operate only upon
particular persons and private concerns: and of
these the judges are not bound to take notice,
unless they be formally shewn and pleaded.
Again, there are declaratory statutes, or those
which the parliament enacts to declare what the
common law is and ever hath been, to avoid all
disputes, where the old custom of the kingdom is
almost fallen into disuse, or become disputable.
So likewise there are remedial statutes 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, or from
any other cause whatever.
In attending to the rules to be observed in the
construction of statutes, it may be remarked that
there are three points to be considered in the
exposition of all remedial laws; namely, 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 supplied to cure this mischief.
Again, a statute, which treats of things and
persons of an inferior rank, cannot by any general
words be extended to those of a superior. Thus a
statute treating of Deans and others having spiritual
promotions, is held not to extend to Bishops.
With respect to penal statutes, they must be
construed strictly; though the statutes against
41
frauds are to be liberally and beneficially ex-
pounded. The reason of this difference, is, that
the former statutes act upon the offender, the lat-
ter upon the offenee: and in all statutes, one part
must be construed by another, so that the whole,
if possible, may stand. Supposing the common
law and a statute should differ, the former gives
place to the latter; and an old statute is super-
seded by a new one.
But if a statute that repeals
another, be itself repealed afterwards, the first
statute is hereby revived without any formal words
for that purpose.
It may be further noticed with regard to the
construction of acts of parliament, that such as
are derogatory from the power of subsequent par-
liaments are not binding; and that statutes which
are impossible to be performed, are of no validity;
and if there arise out of them collaterally any
absurd consequences, manifestly contradictory to
reason, they are, with regard to those consequences,
void.
D
CHAP. III:
OF THE COUNTRIES SUBJECT TO THE LAWS ON
ENGLAND.
WALES continued for many centuries independent
on England; but was subdued and divided amongst
the conquerors by William I. in 1091; and was
completely annexed to the crown of England in
1203: yet it was not-governed: altogether by her
laws until the reign of Henry VIII. In 1535, an
act was passed, enacting, that tlie dominion of
Wales shall for ever be united to the kingdom of
England; that all Welchmen born shall have the
same liberties as other the king's subjects; that:
lands in Wales shall be inheritable according to
the English tenures and rules of descent; that the
laws of England and no other shall be used in
Wales; with many other provisions with regard to
the regulation of the police of this ancient princi-
pality. By this union of Wales with England,
twenty-seven members were added to the House
of Commons; no county or town in Wales sending
more than one member to parliament, except the
county of Monmouth, whịch returns two.
Scotland, the ancient Caledonia, was on the
death of Alexander III. disputed by twelve candi-
43
dates; who submitting their claims to the arbitra-
tion of Edward I. of England, in 1285, gave him
an opportunity to conquer it. Its règalia and
crown were taken and brought to England, with
the coronation chair, now in Westminster Abbey,
in 1296 ; but the public records of the kingdom
were all lost in conveying them back from London
by sea, in: 1660.
The union of the kingdom of Scotland with
England was attempted in 1604; and again in
1670; but was not accomplished till May 1, 1707,
in the reign of queen Anne:
The parliaments of both kingdoms agreed to
twenty-five articles of union; the purport of the
most considerable of which was, that on the 1st
of May, 1707, and for ever after, the kingdoms
of England and Scotland shall be united into one
by the name of Great-Britain: that the succession
to the monarchy of Great-Britain shall be the
same, as was before settled with regard to that
of England: that the united kingdom shall be
represented by one parliament: that there shall
be a communication of all rights and privileges
between the subjects of both kingdoms, except
where it is otherwise agreed : that the coin,
Weights, and measures; the laws relating to trade,
customs, and the excise, shall be the same in
Scotland as in England: that sixteen peers shall
be chosen to represent the peerage of Scotland in
parliament, and forty-five members to sit in the
House of Commons.
1
D 2
44
There are, however, several fundamental and
essential conditions of the union. The most pro-
minent of which, are, 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 continuance of the municipal laws of
Scotland, which are to be still observed in that
part of the island, unless altered by parliament.
The town of Berwick-upon-T'weed was originally
part of the kingdom of Scotland: it has, however,
been many times alternately in the hands of the
English and Scots; but was at length reduced
into the possession of the crown of England by king
Edward I. It received a charter from that prince;
and was confirmed in all its privileges and customs,
by the legislature, in the reigns of Edward IV.
and James I.
Although, therefore, it has some local peculiari-
ties derived from the ancient laws of Scotland; yet
it is clearly a part of the realm of England, being
represented by burgesses in the House of Com-
mons, and bound by all the acts of the parliament
of the united kingdom.
Ireland, originally called Ierne, Hibernia, and
Scotia, was formerly governed by kings of its own,
till conquered by Henry II. who, as well as his
successors, were styled Lords of Ireland, until
Henry the VIII. when the title of King of Ireland
was first assumed by that monarch.
The laws of England were received and sworn
to by the Irish nation, assembled at the Council
45
of Lismore, in the reign of Henry II. and although
Ireland continued from that time to the present.
reign a distinct kingdom; still it remained in a
state of dependance on England, and necessarily
conformed to, and was bound by, such laws as the
superior state thought proper to prescribe or
sanction.
But the delay occasioned by sending over acts
of parliament to the British ministry before they
could pass into a law, created inuch inconvenience.
This evil, with some others, turned the thoughts of
the English Cabinet to an union of Great-Britain
and Ireland.
This great political measure was completed on
the 2d of July, 1800; when an act was passed, in
order to promote and secure the essential interests
of Great-Britain and Ireland, and to consolidate
the strength, power, and resources of the British
empire.
This statute comprehends eight articles, by
which, among other things, it is provided; that,
upon the 1st of January, 1801, Great-Britain and
Ireland shall be for ever united into one kingdom,
to be represented in one parliament, to be styled
“ The parliament of the united kingdom of Great-
Britain and Ireland;" and that the succession to
the crown shall continue limited and settled as at
present; that the representation of Ireland in par-
liament shall consist of four Lords spiritual of
Ireland, by rotation of sessions; and twenty-eight
Lords temporal of Ireland, elected for life by the
46
peers of Ireland, to sit and vote in the House of
Lords; and, that one hundred Commoners be
the number to sit and vote in the House of
Commons, on the part of Ireland: that any peer
of Ireland may be elected to sit in the House of
Commons of the united kingdom, unless previously
elected to sit in the House of Lords.
It is further provided, that the churches of Eng-
land and Ireland be united into one protestant
episcopal church; and the church of Scotland to
remain as formerly established; that the subjects
of Ireland shall have the same privileges as the
subjects of Great Britain; and, that all laws in
force at the union, and all courts of jurisdiction
within the respective kingdoms, shall remain, sub-
ject to such alterations as may appear proper to
the united parliament.
The Isle of Man is a distinct territory from
England, and not governed by its laws; neither
does any act of parliament extend to it, unless it
be particularly named therein; and then it is bind-
ing there. This island was formerly subject to the
kings of Norway; then to John, and Henry III. of
England; and afterwards, to the kings of Scotland.
It was conquered from the Scots by Montacute,
Earl of Sarum; to whom Edward III. gave the
title of King of Man. It fell by inheritance to the
Duke of Athol, 1735; but being purchased of his
Grace for £70,000, was annexed to the crown of
England, in 1765; and subjected to the regula-
tions of the Bmtish excise and customs.
-
47
.
The Islands of Jersey, Guernsey, Sark, Alderney,
and their appendages, formerly belonged to the
duchy of Normandy; and were united to the
crown of England by the first princes of the Nor-
man line. They are governed by their own laws;
but an appeal lies from them to the king and
council in the last resort.
They are not bound by common acts of the
Imperial Parliament, unless particularly named
in them.
Besides these Islands, our Colonies in more dis-
tant countries, are also, in some respect, subject
to the laws of England.
In the kingdom of England, however, are com-
prehended, not only Wales and the town of Ber-
wick; but the main, or high seas, are also a part
of this realm; for there the courts of admiralty
have jurisdiction; but they are not subject to the
common law.
The main sea begins at the low water mark.
But between the high and the low water mark,
where the sea ebbs and flows, the common law
and the admiralty have an alternate jurisdiction;
one upon the water, when it is full sea; the other
upon the land, when it is an ebb.
The territory of England is divided into the
ecclesiastical and civil departments. The ecclesi-
astical department is also divided into two pro-
vinces, those of Canterbury and York.
A province, is the circuit of an archbishop's
jurisdiction. The province of Canterbury includes
1
$
48
twenty-one dioceses; that of York, three, besides
the bishoprick of the Isle of Man, which was an-
nexed to it by Henry VIII.
Every diocese is divided into archdeaconries;
each archdeaconry, into rural deaneries; and every
deanery into parishes.
A Parish, is that circuit of ground which is
committed to the charge of one minister, having
the care of souls in it. These districts are com-
puted to be nearly ten thousand in number.
It is difficult to say how ancient this division of
parishes is; but Camden says, England was
divided into parishes by archbishop Honorius
about the year 630. It is probable, however, that
they were gradually formed; and parish churches
endowed with the tithes that arose within the
circuit assigned.
Before this division of England into parishes,
the bishops and clergy lived together in common;
and the latter were sent out occasionally to preach,
as the bishops judged expedient. But when the
number of christians increased, and especially
after the whole island professed christianity, the
itinerant and occasional mode of preaching became
insufficient. Besides the ordinances of Baptism
and of the Lord's Supper, requiring to be adminis-
tered to a whole community, a settled ministry
became absolutely necessary, for the regular ad-
ministration of these indispensable offices. The
bishops, therefore, who were the instruments of
converting the nation from the Saxon idolatry,
49
1
fixed the bounds of parochial cures. At first, any
of the old idolatrous temples' that were left stand-
ing, were used for christián worship; and after-
wards, the lords of 'manors, from time to time,
built churches for the use of the tenantry of their
several manors.' These they endowed with suit-
able provisions for the maintenance of the
minister; and it was this which gave the primary
title to the patronage of laymen. But the reduc-
tion of the whole country into the same division
of parishes, was, doubtless, the gradual work of
of successive generations.
The settling of the bounds of parishes depends
upon immemorial customs; and care is, or ought
to be taken, by annual perambulations, to ascer-
tain and preserve them. In the times of
popery,
these necessary excursions were accompanied with
great abuses of feastings and superstitious proces-
sions. And it is even now usual for the parishion-
ers, on such occasions, to call for refreshments at
the houses of certain persons in the boundaries;
but no claim can be made as due of right; the
custom having been declared to be against law and
.
The civil part of the territory of England is
dívided into counties, hundreds, tithings, or towns.
Which division, as it now stands, seems to owe its
original to king Alfred ; who, to prevent the ra-
pines and disorders which formerly prevailed in
the realm, instituted tithings, so called, because
ten freeholders with their families made one. .
reason.
50
These all dwelt together, and were sureties to the
king for the good behaviour of each other.
The terms, tithing, town, or vill, are of the same
signification in law, and comprehend the several
species of cities, boroughs, and common towns.
A Hundred was originally made up of ten tithings,
consisting of ten times ten families, and is go-
verned by the high constable. In some of the
Rorthern counties the hundreds are called wapen-
takes, because the people, at a public meeting,
formerly confirmed their union with the governor,
by touching a weapon.
A County or shire, is a district made up of an
indefinite number of hundreds. Shire is a Saxon
word, signifying a division; but a county, comi-
tatus, is plainly derived from comes, the Count of
the Franks; that is, the earl or alderman 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, sheriff
or shire-reeve, signifying the officer of the shire;
upon whom 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.
Where a county is divided into three of these
intermediate jurisdictions, they are called trithings.
These trithings still subsist in the large county of
York, where by an easy corruption they are deno-
minated ridings; the north, the east, and the
west-riding
51
In England there are forty counties, and twelve
in Wales.
There are also counties palutine ; such as those
of Chester, Durham, and Lancaster, so called, a
palatio; because the owners thereof, the earl of
Chester, the bishop of Durham, and the duke of
Lancaster, had in these counties jura negalia, as
fully as the king has in his palace. Of these three,
the county of Durham is the ondy one in the bands
of a subject. The earldom of Chester was united
to the crown by Henry III. and has ever since
given title to the king's eldest son, And by various
acts of parliament, the inheritance to the whole
lands of the duchy of Lancaster is vested in the
crown.
The Isle of Ely, likewise, is a royal franchise,
the bishop, having by grant of king Henry I. jura
regalia, within the said isle; whereby he exercises
a jurisdiction over all causes, as well criminal as
civil.
Counties corporate, are certain cities and towns,
to which, out of special grace and favour, the
kings of England have granted the privilege to be
counties of themselves, and not to be comprised 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 intermed-
dle therein. Such are London, York, Bristol,
Norwich, Worcester, and generally the cities of the
realm; besides the five towns of Kingston-upon-
Hull, Nottingham, Newcastle-upon-Tyne, Poole,
and Southampton.
CHAP. IV..
OF THE ABSOLUTE RIGHTS OF INDIVIDUALS.
.
$
ALThough the “Rights of Man" is a term, of late
years, become odious, from the shameful prosti-
tution of it to the basest political purposes,
undoubtedly, the English constitution acknow-
ledges the thing itself.
By the rights of individuals, is meant, such as
would belong to their persons merely in a state of
nature, and which every man is entitled to enjoy,
whether out of society or in it. A sober statement,
therefore, of these, so as to make every English-
man acquainted with them, is perfectly consistent
with the most genuine loyalty.
The absolute rights, of Englislımen, then, usu-
ally called their liberties, are founded upon nature
and reason, and coeval with our form of govern-
ment. They are usually included in one general
appellation, (viz.) the natural liberty of mankind.
This natural liberty consists properly in a power
of acting as one thinks fit, without any restraint
but from the law of nature. But every man who
is a member of a civilized society, gives up a part
of his natural liberty, in consideration of the ad-
vantages, he derives from such wholesome laws as
53
the community shall establish. So that political
or civil liberty, is in short, nothing more or less
than natural liberty, laid under such restraint as
benefits both the individual, who gives up a part
of it, and likewise the community, whose safety
requires that he should do so.
The natural rights of the people of England,
which are secured to them by their constitution
and laws, are, the right of personal security; the
right of personal liberty; and the right of private
property.
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.
Life, in a legal sense, begins as soon as an
infant is capable of stirring in its mother's womb;
and therefore wilfully to kill it by any means, the
law considers as a high misdemeanour, and, in a
moral view, it is certainly murder.
A man's limbs, the law contemplates as the gifts
of his wise Creator, to enable him to protect him-
self from external injuries in a state of nature;
and therefore, by various statutes it is enacted,
that no man shall forfeit his life or member, without
being brought to answer by due process of law.
His body, health, and reputation, are also pro-
tected by law, as without these it is impossible to
have any perfect enjoyment of any other right.
The personal liberty of the subject consists in the
power of leço-motion, of changing one's situation,
.
54
ar moving one's person to whatever place one's
awn inclination may, direct, without imprisonment
ar restraint, unless by due course of law.
This is strictly a natural right, and the language
of the great charter is, “ that no freeman shall be
"taken or imprisoned but by the lawful judgment
& of his equals, or by the law of the land.”
Should any Englishman be deprived of his per-
sonal liberty, by, the arm of power, or the decree
of any illegal court, he shall, upon demand of
his council, have a writ of habeas corpus, to bring
his body: before the court. of king's- bench or
cammon pleas; who shall determine wliether the
cause of his commitment be just, and thereupon
do, as justice shall appertain; and lest the habeas
corpus act should be evaded by demanding unrea-
sonable bail, it is declared by 1 W. and M. ch. 2.
that excessive: bail ought not to be required.
This important privilege cannot be guarded with
too great watchfulness; for if once the magistrate
be left:to: imprison arbitrarily whom he chooses,
there will soon be an end of all other rights and
privileges:
If it be:asked, “how then can.a man.be lawfully
* imprisoned?” The obvious answer is: When he
is committed by process from the courts of judica-
ure, 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 must specify the cause of commit-
ment, in order to be examined into (if necessary)
*
55
apon a habeas corpus.
If there be no cause
expressed, the gaoler is not bound to detain the
prisoner: for as Festus very properly observed, it
is “ unreasonable to send a prisoner, and not to
« signify the crimes laid, against him."-Circum-
stances, however, sometimes arise, which render
it necessary, for the safety of the state, to suspend
the habeas corpus: act, for: a limited time; but the
legislature only can authorize the executive power
to imprison any suspected persons, without assign-
ing any reason for so doing.
The celebrated statute usually called the habeas
corpus acts, was passed in the reign of Charles: II.
May 27, 1679; which, by affording to the subject
complete security against arbitrary imprisonment,
made some reparation for the severities and cruel.
ties committed under the adininistration of that
licentious monarch. It was, indeed, the oppres.
sion of an individual, which gave rise to this famous
aet. One Francis Jenks having moved at-Guild-
hall; to petition the king for a new parliament,
was committed to the Gate-house, by the privy.
council; where he was kept two months, having
applied in vain to the judges for a writ of habeas
corputs. The principal provisions of this act are;
to fix the period for bringing the body of the pris
Soner into court; according to the distance of the
prison; and, in::mocase, can the time allowed,
exceed: twenty days: to oblige: the-keeper within
De Lelme
56
six hours to furnish the prisoner with a copy of his
commitment; and to prevent a re-commitment for
the same offence, if the prisoner be once delivered
by a writ of habeas corpus. Any judge who shall
deny a writ of habeas corpus, shall forfeit £.500
to the party aggrieved.
The king may by his prerogative prevent any
man' from going abroad; and this may sometimes
be for the safety of the state ; but he cannot send
any subject out of the kingdom against his will.
He cannot even constitute any person lord lieute-
nant of Ireland, or an ambassador to a foreign
court, without his consent; for this might, in fact,
be a sort of honourable exile.
The right of property consists in the free use,
enjoyment, and disposal of all one's acquisitions,
without any control or diminution, save only by
the laws of the land. By a variety of statutes
it is enacted, that no man's lands or goods shall
be seized into the king's hands, against the great
charter and the law of the land; and that no man
shall be disinherited, or put out of his franchise 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 declared void.
Private property cannot be taken for the public
good; nor any tax levied upon the subject without
his - consent, expressed by his representative in
parliament. Such then are the absolute rights of
Englishmen. But in vain would it be to have
57
those rights ascertained and declared, unless the
constitution had provided some method to secure
the actual enjoyment of them.
It has therefore established some auxiliary pri-
vileges of the subject, to enable him to maintain
and protect the three principal rights of personal
security, personal liberty, and private property.
These subordinate rights are principally,
The constitution of parliament, which will be
treated of at large hereafter:
The limitation of the king's prerogative, by.
bounds so certain and notorious, that it is impos-
sible he should either mistake, or legally exceed
them, without the consent of the people:
The right of every Englishman of applying to
the courts of justice for redress of grievances;
where his cause must be tried and determined by
course of law:
The right of the subject of petitioning the king,
or either house of parliament: and,
Lastly, the right of every man, of having arms,
for his self-defence and preservation, such as are
allowed by law, according to his degree.
In these several particulars consist the liberties
of Englishmen; liberties, which are more generally
talked of, than understood. As, however, they
are our birth-right, it is important that we should
rightly understand them; and as it is our privilege
to enjoy, so should it be our constant care to
maintain and defend them.
E
58
The history of our liberties was written in letters
of blood, which our fathers shed; and we should
be ready, if called upon, to transmit a continuation
of it in the same indelible characters, down to
our posterity
CHAP. V.
OF THE LEGISLATIVE POWER.
It has already been seen, that the authority of
making laws is lodged in the supreme power of a
state.
In all tyrannical governments, the right of mak-
ing and enforcing the laws, is vested in one and
the same man, or in one and the same body of
men; but in England the legislative and executive
powers are wisely separated. Therein consists a
great excellency of the British, over all other
governments
upon
the face of the globe.
It is this peculiarity that has enabled England
to raise her lofty head as far above all the rest of
the nations, as the stately oak excels the meanest
shrub. Nor does it form any objection to this
assumption, that a very similar mode of govern-
ment obtains in the United States of America; for
whatever excellency is to be found there, must, in
all justice, be allowed to have been derived from
England. But the American government is like
a child who exhibits the lineaments of his father's
59
*
face, yet wants the vigour and stability of his
experience and age.
“ It is from the English,” says an enlightened
American, “we derive the principal merit of our
“ own character; the best of our own institutions ;
“ the sources of our highest enjoyments; and the
light of freedom itself, which, if they should be
destroyed, will not long shed its radiance over
“ this country.
It is presumed, indeed, that true practical
liberty, pure and unmixed with ungovernable
licentiousness, can never attain to that perfection
under an elective presidency, at which it has
arrived under our hereditary and limited munarchy.
The parliament of England, in which the legis-
lative authority is vested by the constitution, con-
sists of king, lords, and commons.
The word parliament is derived from the French,
parler," to speak, and signifies the great council
of the nation. Parliaments or general councils, are
coeval with the kingdom itself; and have existed
under the several names of michel-synoth, or great
council ; michel-gemote, or great meeting; and
more frequently wittena-gemote, or the meeting of
the wise men.
The learned, however, are not agreed as to the
period when the parliament, as it now stands,
* See "A Letter on the Genius of the French Government,
by an American," page 188, seventh edition.
E 2
609
was instituted; that is, when the commons first
began to form a distinct assembly from the lords ;
but it is supposed that the parliament was, in the
main, the saine as it now is, so long ago as the
17th year of king John, A. D. 1215.
No writs, indeed, were issued to summon
knights, burg'esses, and citizens to parliament, till
the year 1266, being the 49th of Henry III. But
in 1283, Edward I. held a parliameüit at Shrews-
bury, where the lords sat in the castle, and the
'commons in a barn; and in 1337, the lords and
commons are expressly mentioned in a parliament
that met at Eltham; in Kent, in a palace of
Edward II: the remains of which, now converted
into'a barn, are extant at this day.
On the settlement of the government by William
the Conqueror, upon the principles of the feodal
systém, every seat in parliament was territorial ;
that is, every tenant great and small, who held
lands immediately of the king, had both an equal
right and was under the same obligation to attend
the king's great court baron, or national council.
King John first made a distinction between the
greater and lesser barons in süminoning them to
parliament: and the earl of Leicester who usurped
the government in the 49th of Henry III. instead
of ordering the sheriff to issue a general summons
to all the lesser barons, directed him to sumnion
and send two knights only out of every county;
and it is probable, that the rest gladly acquiescing
in being excused from attending parliament, de-
61
clined asserting their right to do so on account of
the trouble and expense. These knights, who.
were elected by the other freeholders of the king,
had, independently on their election, a right to sit
with the barons, and were in fact their peers. And
thus originated the representation of our counties.
The representation of cities and boroughs is
founded upon the same feodal principles; for,
whenever the king created a corporation and
granted it lands to hold of himself, they would be
entitled and compellable equally with the barons
to attend the king's great court; and if they did
not all attend, some would represent the rest. But
being poor and mean persons, they would natural-
ly withdraw from the haughty barons and knights,
and consult on public business by themselves;
and the knights, probably, sometimes joined thein
and sometimes sat with the barons. At length,
conscious of their inferiority to the barons, they
would naturally prefer sitting with the citizens
and burgesses, over whom they felt a superiority;
and thus a total separation was at last effected, and
the parliament divided into two distinct houses.
Upon the whole, however, we see that originally
no one was represented but who had a personal
right to sit in parliament. And if this fact were
more clearly and generally understood, the absur-
dity of a representation of Old Sarum and other
depopulated boroughs would not appear so great
as it commonly does. For it was not the extent
of population that gave to any place the privilege
62
of sending members to parliament, but the holding
of lands in capite under the king, which conferred
both a right and obligation on the citizens and
burgesses to attend the king's great council. The
sheriff's writ to summon one or more to represent
the rest, did not annul the right of any to attend
in parliament, but was merely a dispensation, on
the king's part, excusing the attendance of those
who elected their representatives.*
In the further consideration of the British
par-
liament, it will be necessary to attend to the
manner and time of its assembling. It is usually
and regularly summoned by the king's writ or
letters, issued out of chancery by advice of the
privy council, at least forty days before it begins
to sit. Yet, his Majesty may issue his royal
proclamation for the meeting of parliament in not
less than fourteen days from the date of such
proclamation, notwithstanding any previous ad-
journment to a longer day:
The parliament cannot meet byits own authority;
it being a branch of the royal prerogative to con-
vene it at such time and place as the king shall
think fit. There would be a manifest inconveni-
ence attending the right of the parliament to meet
of its own accord ; for it is impossible to conceive
that both houses, and all the members of each,
should ever agree unanimously as to the time and
* See" A concise Account of the Origin of the two Houses of
** Parliament,” by Professor Christian.
63
place of meeting. Still as it is highly, becoming its
dignity and independence, that parliament should
be called together by none but one of its own con-
stituent parts, there is the greatest propriety as
well as advantage in vesting this authority consti-
tutionally only in the king ; because, being a single
person, his will may be uniform and steady. If
there should be no parliament in being at the
demise of the king or queen, the last parliament
revives, and is to sit again for six months, unless
dissolved by the successor ; but as it must origi-
nally have been summoned by the crown, this
forms no exception to the general rule. Necessity
may indeed supersede all law; and hence the con-
vention parliament which restored king Charles II.
mét a month before his return, by its own autho-
rity; and had not such a parliament met, it would
have been morally impossible for the kingdom to
have been settled again in peace. But the acts
even of this parliament were held as nugatory by
some eminent lawyers, and therefore to remove
all doubts respecting them, they were confirmed
in the next parliament by statute 13 Car. II. ch.7.
History affords us another striking instance
where the necessity of the case compelled and
justified the two houses convening without the
usual writs of the king, in order to settle the go-
vernment. In 1688, king James II. having volun-
tarily abdicated the throne, the prince of Orange
was called over by the voice of the whole nation,
and having delivered these realms from popery and
64
tyranny, was placed in the vacant throne by a
convention parliament. The proceedings of this
parliament were likewise ratified by statute of 1 W.
and M. ch. 1.
Hence it may be clearly inferred, that notwith-
standing extreme cases justify the lords and com-
mons of the realm in holding a convention, yet the
rule laid down, is in general certain that the king
only can convoke a parliament. And this he is
obliged to do, at least once a year, for the redress
of grievances and the dispatch of business.
It is necessary to enquire next into the consti-
tuent parts of parliament: these are, the king's
Majesty, sitting there in his royal political capa-
city; and the three estates of the realm, the lords
spiritual, the lords temporal, and the commons.
Here it may be remarked, that the total dis-
junction of the executive and legislative powers
would be no less destructive to liberty, than their
perfect union. Thus, when king Charles I. passed
a bill destroying his sole prerogative to dissolve
the parliament, it soon assumed both the civil
and military administrations, and overturned both
church and state.
When the parliament meets, the king and the
lords spiritual and temporal sit in one house, called
the house of lords; and the representatives of the
people in another, called the house of commons.
The king, being the head, the beginning, and the
end of parliament, always meets the two houses
on their coming together, either in person, or by
li
65
commissioners appointed to represent him; with-
out which, there can be no beginning of parliament.
And he only has the power to prorogue and dis-
solve it.
There is a very important advantage in the king's
being a branch of the legislature, besides his
having the power of dissolving it; and that is, his
possessing the privilege of rejecting any bill that
may have passed both houses, and thereby pre-
venting, in time, any encroachment upon his royal
authority. So that the lords and commons cannot
abridge, by law, the executive power of any of its
rights; because the law must perpetually stand as
it now does, unless all the branches of the legis-
lature agree to alter it.
Herein consists the superior excellence of the
British legislature; that all its constituent parts
forin a mutual check upon each other. The house
of commons, that is, the people, are a check upon
the nobility, and the nobility a check upon the
people, by the mutual privilege they enjoy of
rejecting what the other has resolved; while the
king is a check upon both, which preserves the
executive power from injury.
There was no single circumstance, perhaps,
that tended more to involve the French nation in
all the horrors of a sanguinary revolution, and
įmake it pass under the iron yoke of military des-
potism, than the vote which united the three
estates into one. By amalgamating the quick-
silver with the gold, the revolutionary chymists
i
66
completely destroyed the brilliancy of the one, the
splendor and solidity of the other, and the essen-
tial properties of both. But had the clergy and
noblesse continued to sit one house, and the tiers
etat, or representatives of the people, in another;
had both deliberated with becoming dignity, and
not depreciated the royal prerogative, which em-
powered the king to consent to any measure, or
prevent its passing into a law, it is probable that
grievances would have been redressed, liberty
secured, and the blood of millions spared.
But to return:- Is there no danger, it may be
asked, of the executive making intrenchments
upon the legislative power? Certainly there would
be, had not the constitution wisely kept it within
due bounds, by bestowing upon the two houses
the privilege of impeaching and punishing the
king's counsellors for any evil and pernicious
measures. It is far more beneficial to the public
that his counsellors, rather than the king himself,
should be answerable for his political conduct;
because, were the king in person to be impeached
and punished, it would destroy his constitutional
independence, and overthrow the government.
By the lords spiritual, as a constituent part of
parliament, is to be understood the two arch-
bishops and twenty-four bishops of England, and
four bishops of Ireland. Formerly there were
twenty-six mitred abbots and two priors in the
house of lords, but they were removed from their
67
.
seats at the dissolution of the monasteries by
Henry VIII.
The right by which the English bishops sit in
the upper house, arises from their holding, or
being supposed to hold, certain baronies under the
king
Before the conquest, the bishops, during the
Saxon government, held their lands under the spi-
ritual tenure of frankalmoigne, or free alms; but
in 1072, Williarn the Conqueror, in order to sub-
ject the estates of the clergy, to all civil charges
and assessments, changed the frankalmoigne into
into the feudal tenure of barony. This obliged the
bishops to attend in parliament, which they com-
plained, of as a great hardship; and hence' origi-
nated the quarrel between Henry II, and Thomas-
á-Becket, archbishop of Canterbury.
But although the lords spiritual are distinct from
the lords temporal, they do not vote separately.
They are indeed in acts of parliament usually
distinguished, yet in practice they are blended
together under one name, of the lords; they min-
gle in their votes, and the majority of such inter-
mixture binds both estates. So that notwithstand-
ing the ancient distinction still nominally continues,
the lords spiritualand temporal form but one estate:
and a bill would undoubtedly be valid which
should pass the house, although every bishop were
to vote against it. There are many instances of
this, but it will be sufficient to mention only the act
of uniformity of 1 Elizabeth, ch. 2. which was car-
68
ried with the dissent of all the bishops; and hence
the bill runs,
“ Be it enacted by the queen's high-
ness, with the assent of the lords and commons,
" in this present parliament assembled."
In 1642, during the violence of party dissentions,
the bishops were excluded from parliament by the
multitudes that flocked' towards Westminster and
insulted them. They drew up an address to the
king and house of lords, stating their undoubted
right to sit and vote in parliament; and protesting
against all laws, votes, and resolutions, as null and
invalid, which should pass during their constrained
absence. The house of lords held a conference
a
with thecommons on the subject; the issue of which
was, the impeachment of the twelve bishops who
signed the protestation.
Respecting the validity of a bill that should pass
by the bishops making the majority, whilst every
temporal peer present dissented, there is some
doubt. , Mr. Justice Blackstone is of opinion that
such a bill would be valid; but Sir Edward Coke
seems to think that this would be rather on ordi-
rance than an act of parliament. Professor Chris-
tian, however, has no doubt but that any act
would be valid, although either all the temporal or
all the spiritual lords were absent; or if present,
were to dissent at the time of its passing the house;
unless, indeed, any precedent could be produced
to the contrary.
The lords temporal consists of all the peers of
the realm, by whatever titles, of nobility they are
69
;
.
distinguished, whether dukes, marquisses, earls,
viscounts, or barons. The bishops are not, strictly
speaking, peers of the realm, but only lords of
parliament.
The number of the lords temporal is indefinite,
and' may be increased at the pleasure of the crown.
Some of them șit in the house by, descent, as do
all the ancient nobility; some by creation, as do
all new made peers; others by election, as do the
Scotch and Irish peers since the union of the three
kingdoms.
There are sixteen peers chosen for Scotland,
who hold their seats only during the term of each
parliament; and twenty-eight peers of Ireland,
who are elected for life.
:* The prerogative which theking enjoys of increas-
ing the peerage at his pleasure, may, at first view,
appear dangerous to the state; but in reality, it is.
not so; on the contrary, it is advantageous to it.
For in every well regulated government, a distinc-
tion of rank is necessary; and it is beneficial to
the community that a laudable spirit of emulation
should be diffused through it, which may give life
and vigour to the whole. In order, therefore, to
reward such as are eminent for their services to
the public, the constitution has empowered the
king to confer honours whenever and to whomso-
ever he will. And such reward, while it is grati-
fying to the individual upon whom the honour is
bestowed, has the recommendation of not being
burthensome to the people at large.
70
Ambition in a republican government is indeed
a very dangerous principle to inculcate and coun-
tenance; but under a mixed monarchy like ours,
it can easily be kept within due bounds, and yet
encouraged without affecting the safety of the em-
pire. Thus we have seen a popular privy coun-
sellor struck off the list, and a noble commander
of a fleet or an army superseded; and an enter-
prising individual suddenly raised to the peerage,
with equal ease and safety to the nation.
The house of lords is the principal constitutional
support of the rights of the crown and people;
whilst it forms a barrier to withstand the encroach-
ments of both. It also creates and preserves that
gradual scale of dignity, which proceeds from the
peasant to the king, rising like a pyramid from a
broad foundation, and terminating in a point. As
titles of nobility are expedient in our happy con-
stitution, it is highly important that the owners of
them should form an independent and separate
branch of the legislature; for if they could only
elect representatives, who should sit and vote in
parliament, with the representatives of the people,
their privileges would soon be borne down by the
popular torrent, which would not fail to level all
distinctions.
1
CHAP. VI.
THE SAME SUBJECT CONTINUED.
In a free state every man, who is supposed to be
a free agent, ought to be in some measure his own
governor; and therefore one branch of the legisla-
tive power very properly resides in the people, or
house of commons. The modern acceptation of the
word commons, comprises all persons below the
rank of peers. But in a parliamentary sense, the
term is still confined to its original meaning, im-
plying those only who have a right to sit or a right
to vote for representatives in the lower house. *
The commons consist of all such men of real pro-
perty in the kingdom as have not seats in the house
of lords; every freeholder having a voice in parlia-
ment, either personally or by his representatives.
In a large state it is absolutely impossible for
every man to sit and vote in person in the legisla-
tive assemblies; indeed it is obvious that such a
mode would create only tumult and confusion,
and prove an effectual hinderance to all public
business. Our laws, therefore, are enacted on the
part of the people by representatives.
* Professor Christian.
72
The landed property of the whole kingdom is
represented by knights of the shire; and the mer-
cantile interest by citizens and burgesses, who are
returned for the different cities and privileged
boroughs. And as many of the members who are
returned to parliament are military and naval
characters, the interests of those professions are
naturally attended to; nor is the welfare of litera-
ture less protected by the members for the three
universities of Oxford, Cambridge, and Dublin.
It was not till the reign of James I. that the
universities enjoyed the permanent privilege of
being represented in parliament. So little was the
advantage of the lower house at first understood,
that in the reign of Edward I. no intelligence
could be more disagreeable to any borough, than
to find that it must elect, or to any individual than
that he was elected, to a trust to which no honour
then attached. At this time, it was usual for the
members to give sureties for their attendance before
the king and parliament; their charges being re-
spectively borne by their constituents. But the
weight and influence of the house of commons
increased from time to time, till it arrived at its
present rank and authority in the legislature.
The number of representatives sent to parlia-
ment for England, Wales, and the town of
Berwick, is five hundred and thirteen; for Scot-
land, forty-five; and one hundred for Ireland;
making the house of commons to consist of six
hundred and fifty-eight members.
f
73
When a member is once elected, he is returned
to serve for the whole realm, and not obliged
to confine his senatorial conduct to the views
and exclusive interest of the county, town, or
university that sent him to parliament. No
maxim can be more unconstitutional than that a
member is bound to vote on all questions conform-
ably to the instructions of his constituents. For
to say nothing of the delay which must often
arise, from his being obliged to consult them, it
is plain, that in electing him they have virtually
transferred their own legislative wisdom and power
into his hands, to be employed by him, as he,
upon all occasions, shall think fit. This appears
evident from the very writ of summons itself,
which enjoins the election of a representative,
" to advise his Majesty, in the great council of
. the nation, touching certain difficult and urgent
“ affairs concerning the king, and defence both of
“the kingdom and church of England.” This
clearly implies, that the constituents are to send
representatives - to parliament, not only for their
own, but likewise for the public welfare. Suppose
then, that a “certain difficult and urgent affair”
should be proposed in the house of commons for
discussion, and a member, towards the end of the
debate, were to rise and address the chair to this
effect, “Mr. Speaker, 1 highly approve the mea-
sure now under consideration, having been con-
“ vinced by the learned arguments I have just
heard, that it will be very salutáry to the whole
F
74
kingdom, and in particular to my constituents ;
"I am sorry, therefore, that I have received
" their positive instructions to vote against it;
“ the more so, as I have no doubt that, had they
“ been here and heard the debate, they would
“ have directed me to support the motion.” o
' rem ridiculam, Calo, et jocosam.' How truly
ridiculous and absurd ! A member certainly
ought to consult his constituents about their
local interests, respecting which they are better
judges than himself; but as to questions of general
policy, he has the sole constitutional right to
vote agreeably to his own conviction.
If indeed a representative should do any thing
which his constituents may justly consider as
injurious to them, or if they disapprove his general
political conduct, they have a reinedy at hand,
which they can administer at the next election.
And a representative well knowing that his consti-
tuents can refuse to return him again, will pro-
bably often think it prudent and proper to consult
with them and attend to their wishes, in matters
in which they are exclusively concerned.
Respecting the legislative power of the com-
mons, they have none but in conjunction with the
lords and the king ; the consent of the three
branches of the legislature being requisite to make
any law that shall kind the subject. It is true,
that in the time of civil madness and anarchy,
when democratic violence and rage overpowered
all law and reason, the commons passed a vote on
1
75
66
the 4th of January, 1648, “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 there-
by, although the consent and the concurrence
“ of the king or house of peers be not had thereto."
It is not very surprising that such a vote should
have been passed by 'men who murdered* their
king on the 30th of the same month. But this
absurd and unconstitutional vote was rendered
nugatory by statute of 13 Car. II. ch. 1, which
expressly declares, that “if any person shall ma-
liciously 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 premunire:" that is,
he shall be put out of the king's protection, forfeit
all his lands and goods, and be imprisoned, and
ransomed at the king's will. Each house of par-
liament, however, has a constitutional power of
making laws to bind its own respective members,
in matters relating to their own privileges, but no
farther.
1
* In denoininating the death of king Charles I. a murder, the
Author is not actuated by the feelings of political party: nor
has he any intention to decide on the expediency of the king's
execution. The fact he conceives to be, that power being pro-
videntially placed in the hands of the parliamentary leaders,
they mistook it for authority; and by exercising that power,
they grossly violated the cristing laws, and thus were guilty of
murder.
F?
76
:
It will next be proper to take a view of the
laws and customs which relate to parliament, as
one aggregate body. The power and jurisdiction
of parliament are so transcendent and absolute,
as not to be contived within bounds, either as it
respects persons or causes. The British parlia-
ment consisting of king, lords, and commons, is,
in short, invested with absolute power, or with
that sovereign and uncontrolable authority, which
in
every government must reside somewhere. This
sovereign authority consists in the power of inaking,
confirming, enlarging, restraining, abrogating, re-
pealing, reviving, and expounding laws, concerning
matters of all possible descriptions; whether eccle
siastical or temporal; civil, military, marine, or
criminal. It can regulate or new model the suc-
cession to the crown; as was done in the reigns of
Henry VIII. and of William III. It can alter the
established religion of the land; as was done at the
reformation, and in many other subsequent periods.
It can also change the constitution of the kingdom
and of parliament itself; as was the case by the acts
of union with Scotland in the reign of queen Anne,
and with Ireland during the present reign. Nor
is it necessary that violence and popular tumult
should prevail in order to alter the constitution of
parliament, since the several statutes for triennial
and septennial elections were enacted with the
usual constitutional forms, after deliberate and
interesting discussions.
In short, such exalted ideas have some writers
had of this legislative power, that they have deno-
77
minated it the Omnipotence of parliament; by
which expression, certainly nothing more is meant
than that parliament can do every thing that is
morally possible for human power to effect; and
that po earthly authority can render nugatory its
solemn acts. Nor is there any inherent right or
supreme power in the people to remove or alter
the legislature, should it abuse its trust. For
however just it may appear in theory, that the
people should possess such a power, no such thing
can be adınitted in practice; because no govern-
ment would make provision for such a desperate
expedient, as must effectually destroy all laws,
and render any legislature feeble in its measures,
and precarious in its continuance. The British
parliament, therefore, may, with the strictest pro-
priety, be said to be absolute and without control ;
for as the people cannot lawfully alter the whole,
neither can they change or destroy any particular
branch of the government. And the experience
both of ancient and modern times has uniformly
taught us, that all changes in the state, which
are brought about by illegal violence, invariably
terminate in the arbitrary despotism of one military
tyrant.
The constitution has made ample provision to
prevent the important duties of a legislator from
falling into the hands of those who would be unfit“
to discharge them.' But as no human wisdom or
foresight can effectually prevent all possibility of
abuse, so it must needs be, that offences in this
case will come. The custom and law of parlia-
:
!
78
1
mass.
!
ment prohibit any one sitting and voting in either
house, who has not attained the age of twenty-one
years: and if a member of either house be con-
victed of any crime, each respective house has a
right and power to adjudge such a one disabled
and incapable of holding his seat any longer.
Every member of parlianient must, in the pre-
sence of the house, take the oaths of allegiance,
supremacy, and abjuration; and subscribe and
repeat the declaration against transubstantiation
and invocation of saints, and the sacrifice of the
But no alien can sit in parliament, although
he be naturalized.
The high court of parliament, like every other
court, has its own peculiar law, called, " the law
" of parliament,” which has its original in 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. And each house
enjoys this privilege independently on the other :
so that the lords will not permit the commons,
for instance, to interfere respecting the election of
à peer of Scotland for of Ireland ; nor will the
commons allow the lords to meddle with the
election of a knight of the shire, or a burgess; nor
can any of the courts of law determine the merits
of either case.
The privileges of parliament are very large and
indefinite; amongst which, that of freedom of
:
* See page 33.
79
speech stands the most conspicuous. This pri-
vilege the British senate enjoys in a degree supe-
rior to any other legislative assembly. It is par-
ticularly demanded of the king in person, by the
speaker of the house of commons, at the opening
of every new parliament; and then recognised
by his Majesty. The statute of 1 W: and M.
declares that “the freedom of speech and debates,
“ and proceedings in parliament, ought not to be
impeached or questioned in any other place or
“ coort out of parliament.” In the session of
1810, Sir Francis Burdett, baronet, having been
declared by the house of commons guilty “ of a
gross breach of the privileges of that house, of
« which he was a member," it was ordered, that
" he should be committed to the Tower of London;
“ and that the speaker should make out his war-
“ rant accordingly.” Sir Francis refusing the ad-
mittance of the sergeant at arms into his house to
execute this warrant, the sergeant entered by
breaking open the outer door; and Sir Francis then
avowing that he submitted to superior force, was
conducted a prisoner to the Tower. An action
of trespass being afterwards brought against the
speaker, arguments on demurrer were held before
the court of King's Bench. After hearing the
learned counsel on both sides, and well considering
all the points, lord Ellenborough said, that "it
“ appeared to him, that the right of the houses of
parliament to comunit, was authorized by reason
“ and by law; that the speaker's warrant was
“conformable to the power of the house to order
2
80
1
it; and that in case of contempt of the authority
" of any court, an outer door may be broken open
" where public benefit is concerned; although it
“is unlawful in executing a civil process. For the
“ law values the security and comfort of the sub-
“ject in his house, which was so far his castle,
more than the satisfaction of the civil process.?*
It cannot, however, be doubted, that the public
opinion' may be constitutionally expressed on the
decisions of either house of parliament, provided
it be done in respectful language. But when a
writer abuses the liberty of the press by employing
personal invective and insult against any member
on account of his conduct in the legislative asa.
sembly; he is unquestionably guilty of a breach
of the law of the land, of which the law of parlia-
ment is a constituent part. The liberty of speech,
which is recngnised by the king as the privilege of
members of parliament, necessarily includes the
idea, that they are not only to be permitted to
speak what they please in debate, free froin all
fear of the crown; but likewise that they are to be
: secured in their right of attendance in their re-
spective houses, unrestrained by popular prejudice
and clamour. Indeed it is obvious, that the privi-
lege of liberty of speech is much more endangered
by the licentious violence of private persons, thán
even by the powerful arin of the executive autho-
rity. For the furious ebullition of the former being
commonly sudden, unexpected, and overwhelm-
* See The Times Newspaper, May 13th, 1811,
81
ing, it is the more difficultly checked; whereas
the latter is likely to be slow and cautious in its
operation, and therefore more easily watched and
resisted.
Nothing is clearer than that both houses of par-
liament have a constitutional right to commit all
persons whom they find guilty of a contempt of
their authority; and nothing is more reasonable
or necessary than that they should also possess
the power of carrying their orders into execution.
For to admit the right without acknowledging the
power of commitment, is at once to open the flood-
gates of defiance, through which the torrent of
virulence and abuse would run with an impetu-
osity, that would soon break down all the barriers
of our freedom.
It has of late been asserted, that the houses of
parliament cannot lawfully commit' any one for
contempt but their own-members, nor even them
for their conduct out of the house. But this is
certainly an erroneous opinion ; and only shews
that they who hold it are little acquainted with
the immemorial custom of parliament.
That the public may not plead ignorance of
what the commons might choose to call a con-
tempt of their authority; it was on the 26th of
February, 1701, “Resolved, that it is the opinion
" of this committee, that to print or publish any
6 books or libels reflecting upon the proceedings
*s of the house of commons, or any member
* See page 103,
82
" thereof, for or relating to his service therein, is
“ a high violation of the rights and privileges of
“ the house of commons."
The right of committing every person who is
guilty of a contempt, has been declared at dif-
ferent periods, by the highest courts, to belong to
the house of commons. “In the conference,” says
Professor Christian, “between the lords and the
“ commons in the case of the Aylesbury men, the
“ lords admitted it in the clearest terms; they say,
· The lords never disputed the commons' power
of committing for breach of privilege, as well
• persons who are not of the house of commons,
as those who are. And it is an undoubted fact,
" that of the first eleven persons committed to the
“ Tower by the house of commons, one only was
" a member of that house."
It is usual for the commons to commit for
during the session only; but being a court of
record, “as it is affirmed by act of parliament,
“ 6 Hen. VIII. ch. 16," it is probable that they
have the power of committing for a longer
period, and also of fining the delinquent. There
is certainly a precedent for exercising such a
power.
On the 4th of February, 1580, one
Mr. Hall, a member, having procured the publi-
cation of a book, "prejudicial to the validity of
“ the proceedings of the house," it was resolved,
“ that he should be committed to the Tower, and
remain in the said prison for six months, and
“'until he should make retraction of the book to the
83
satisfaction of the house; and that he should
разу
a fine to the queen of five hundred marks."
The common objection that is brought against
the authority of the house of commons to commit
for contempt, is, “ that no court or person ought
“to be accuser, judge, jury, and executioner, in
“ their own cause." But this is a misapplication
of legal terms, , subversive of all order and good
government. Every judge who commits for con-
tempt of court, every magistrate who commits for
trial; and every commissioner who commits a
bankrupt for the benefit of his creditors, acts both
as judge and jury. And surely the representatives
of the people may as safely be entrusted with their
liberties, as any other description of judges.
But whatever doubts may be entertained re-
specting the right of the commons to fine, and to
imprison beyond the sitting of parliament; there
are none with regard to the right of the lords of
carrying this two-edged sword in their hands.
At least, “ the cominons,” says Mr. Hargrave,
“ have even forborne to revive considering the
right of the lords to fine the commons of Eng-
“ land for breach of privilege, and to imprison
“ them on that account beyond the sitting of par-
* liament.” So lately as the year 1799, one Mr.
Benjamin Flower, the editor of a country news-
paper, being found guilty of publishing a libel on
the bishop of Llandaff, was sentenced by the lords
" to pay a fine to his Majesty of £100, and to
“ be committed to Newgate for six months.” On
being brought up by a habeas corpus before
84'
the court of king's bench, Mr. Flower was re-
manded to prison by that great and upright judge
lord Kenyon, who confirmed the judicial authority
of the house of lords in the fullest manner, and
concluded bis dignified decision with the following
remark, very naturally arising out of Mr. Flower's
case: “If ever the time shall come when factious
men will overturn the government of the country,
cs
they will begin their work by calumniating the
courts of justice and both houses of parliament.”
Another privilege of parliament consists in the
protection of the persons of peers and members of
the house of commons from arrest, so that they
cannot be taken into custody without a breach of
parliament. The privilege of parliament, however,
does not extend to treason, felony, nor to those
offences in which sureties of the peace might be
demanded. The privilege of parliament is not
given to its members for their own sakes, but as a
guard which the constitution has set over their
persons and necessary attendants, for the security
of that duty they owe to the public. But the
dominion of the law being paramount to the pri-
vilege of parliament, its members cannot throw
the plea of privilege as an obstacle to the regular
course of justice in matters of high concern to the
public.* The person of a législator is indeed
sometimes arrested, but communication of the fact
must be made to the house of which he is a mem-
* See lord Lyttelton's incomparable speech in the house of
Jords, on the case of Jolin Wilkes, Esq. 1763.
85
beï; as he cannot be lawfully detained without
the consent of the said house. Ever since the
revolution, however, it has been usual to make the
communication' immediately after the arrest of a
member, with the reason of his detention.
The franking of letters is also a privilege com-
mon to the members of both houses of parliament;
which, being formerly grossly abused, is now
so restricted by statute that no member of par-
liament can frank more than ten, or receive more
than fifteen letters in any one day. No letterior
package so franked or received, may exceed the
weight of one ounce.--If any person be convicted
of forging or counterfeiting the superscription, or
of altering the date, of any letter or packet, in
order to avoid the payment of the duty of postage,
he shall be deemed guilty of felony, and shall be
transported for seven years.
There are some privileges peculiar to the house
of lords, though they are but few. Yet in order
to preserve a dignity in its proceedings, and to
have the benefit of their advice in points of law,
it has a right to be attended by the judges, the
king's learned council, who are sergeants, and by
the masters of the court of chancery.
Every peer can, by licence obtained from the
king; make another lord of parliament his proxy,
to vote for him in his absence: a privilege withheld
from the commons, because they are themselves
only proxies for their constituents.
: The peers also enjoy the right of protest ; that
is, each peer may, with leave of the house, enter
86
upon the journals of the house his reasons for
dissent, whenever a vote passes contrary to his
wishes.
Further, all bills must have their origin in the
house of lords, that in their consequences, may in
any way affect the rights of the peerage; and
may not be altered or amended in the other house,
And, lastly, the statutes of the 6th Anne, ch. 23,
and 39th and 40th Geo. III. ch. 67, expressly
provide for the election of the Scotch and Irish
peers of parliament, prescribing the oaths of the
electors, directing the mode of ballotting, and
prohibiting the peers electing from being attended
by an unusual retinue; and enacting that no other
matters shall be treated of in these assemblies,
save only the elections, on pain of incurring a
premunire.
But there are also laws and customs peculiar to
the house of commons; they relate principally to
the raising of taxes, and the election of meinbers
to serve in parliament. It is the ancient indispu-
table privilege and right of the house of commons,
that all grants of subsidies or parliamentary aids
do begin in their house; and the commons have
at all tiines been so anxiously tenacious of this
privilege, that they have never suffered the lords
to make any change in the money bills which they
have sent them; but only allowed their lordships
simply and solely either to accept or reject them.
The supplies being raised on the body of the
people, it is proper that they alone should have
the right of taxing themselves, by their represen-
87
2
tatives; but although this is the reason generally
given for this privilege of the commons, it does..
not seem a good one; for it is obvious, that a very
large share of the taxes is raised upon the property
of the lords; the commons, therefore, not being
the only persons who are taxed, cannot, in any
fairness, have the exclusive privilege of taxing.
But as the lords are a permanent hereditary body,
created at pleasure by the king, they are supposed
to be more liable to an undue influence of the
crown than the commons, who are freely chosen
by the people, and when elected are only a tempo-
rary body. Hence, there would be great danger
from a power in the lords to raise the supplies
upon the people; and it is sufficient for their own
safety and for the public service, that they enjoy
the right of rejecting any tax bill, should the com-
mons appear to them, at any tine, too lavish and
improvident in their grants.
By a tax or money bill is meant, any bill under
which money is directed to be raised upon the
subject, for any purpose or in any shape whatso-
ever; whether for the exigencies of the state; or
for private benefit, or for any particular district or
parish.
This important privilege of raising or with-
holding the supplies, is the very life and sonl of
the house of cominons; upon it their very being
may be said to exist: for, at a dissolution of the
parliament (at all times in the power of the king),
1
1
88
--
1
the commons completely vanish; whereas the lords,
being an hereditary body, still exist.
Aware,
therefore, of the 'ainazing advantages that tliey
derive from the power of granting the supplies to
the crown, the commons have always watched
over this privilege with the most fostering and
anxious solicitude. Hence the warmth, nay, the
resentment, with which they have always rejected
even the amendments proposed by the lords in
their money bills. Such is the indignation shewn
by the commons at any, the most distant, attempt
of the lords to encroach upon this right, that,
when any money bill is returned by the lords with
the slightest alteration, it is treated with great
contempt. · It has sometimes been literally kicked
out of the house, without so much as being ex-
amined. When a money bill, however, is altered
by the lords, it is now usual for the speaker to
state to the house, that the bill containing an
objectionable clause, the house cannot, consist-
ently with its ancient privilege, but reject it; and
it is then rejected accordingly. The last time the
lords contended with the commons respecting their
right to alter a money. bill, was in 1671, during
the reign of Charles II. when the altercations
between the two houses ran so highly, that the
king was obliged to prorogue the parliament,
notwithstanding he thereby lost the intended sup-
plies. Ever since, this momentous privilege of
tlie commons has remained undisputed.
89
Another important privilege peculiar to the
house of commons, is the election of representa-
tives ; and this is guarded against abuse and
usurpation by many salutary laws, which may be
comprehended under three heads ; (viz.) the qua-
lifications of electors, the qualifications of the
elected,—and the proceedings at elections.
All popular states have been obliged to establish
certain qualifications for electors; because persons
without any property are supposed to be easily
brought under undue influence by the rich and
great, and to have no will of their own. Hence
every Briton, without exception, is not entitled to
vote for a member of parliament.
The principle upon which the constitution of
suffrages is framed in this country, is to combine
as much as possible both numbers and property;
so that there is scarcely an individual, who has
real property, but has also a vote in elections, in
some part of the kingdom or other. There is no
proportionate regard paid to the extent of property,
so that the richest man in the kingdom has but one
yote at one place; yet if his property lie in different
parts of the kingdom, he will most likely have a
right to vote for many representatives. Every
person qualified to vote for a knight of the shire,
must have a freehold estate of the annual value of
forty shillings, situated in the county represented.
The holders of beneficial leases for a long term of
years cannot vote, because these were not in exist-
G
1
90
ence at the time wlien the statutes respecting
elections were made; nor can copyholders, be-
cause formerly they were only vassals, absolutely
dependant on their lord. A leasehold, however,
vested in an individual for life, entitles him to
vote.
Forty shillings a year seems a small sum to
qualify a man to vote, under the idea of its mak-
ing him independent; but it was sufficient formerly
for a man with proper industry to furnish himself
with the necessaries of life, and keep himself
independent of any one if he would; and is thought
to have been equivalent to twenty pounds at the
present day.
No person under the age of twenty-one years
can vote for any member; nor any one convicted
of perjury. An estate fraudulently obtained to
qualify a voter, will not entitle him to vote in
virtue of it.
A freeholder must have been in possession of
his freehold twelve months, before he can vote for
- a knight of the shire; unless it came to him by
descent, marriage settlement, will, or promotion
to a benefice or office; and every person who votes
in respect of an annuity or rentcharge, must have
registered it with the clerk of the peace twelve
calendar months before. In mortgaged or trust
estates, the person in possession has the right of
voting, under the restrictions already mentioned ;
and to prevent the fraudulent splitting of freeholds,
only one person can vote for any house or tenement.
91
No estate will qualify an elector to vote, unless it
has been assessed to the land tax, at least twelve
months before the election; and no tenant by
copy of court roll can be permitted to vote as á
freeholder.
The citizens and burgesses in parliament are the
representatives of the mercantile and trading inter-
ests, as the knights of the shire are of the landed
property. It is true that some boroughs having
no trade, and scarcely any inhabitants, return
members to parliament; whilst many large flourish-
ing trading towns are not in possession of such a
privilege. This inequality is easily explained, by
considering that formerly it was left to the crown
to summon occasionally the most flourishing towns
to send representatives to parliament; so that as
towns increased in trade, they were probably admit-
ted to a share of the legislature. But the deserted
boroughs continued to be summoned as well as the
towns to which their trade was transferred; with
the exception of a few towns, which petitioned to
be eased of the expense of maintaining their mem-
bers, to which, at that time, they were compelled.
For, we have seen that the right of a seat or repre-
sentation in parliament, was owing at first not to
population, but to the nature of the tenure by which
the lands were held under the king. * The rate of
wages to members of parliament established in the
reign of Edward III. was four shillings a day to
* See page 61.
G 2
92
1
)
knights of the shire, and two shillings to a citizen
or burgess ;-a sum that would now barely free
them through a turnpike.
The right of electors in boroughs has occasioned
infinite disputes, since it varies according to the
charters, customs, and constitations of the respec-
tive places. By statute, however, of 2 Geo. II.
ch. 24. the right of voting in a borough for the future
shall be allowed according to the last determina-
țion of the house of commons concerning it; and
by statute 3. Geo. III. ch. 15. no freeman of any
city or borough shall be entitled to vote therein,
unless he hath been admitted to his freedom twelve
calendar months before the election, provided his
claim to vote be not founded upon birth, marriage,
or servitude
As to the qualifications of the elected, or rather
of persons to be elected members of parliament,
some of these depend upon the law and custom of
of parliament, and others upon certain statutes.
No aliens or minors, can be elected to sit in
liament. Nor can any of the twelve judges sit in
the house of commons; because they sit, though
they do not vote, in the house of lords. Clergymen
cannot be elected to the house of commons, because
they sit in the convocation. In the year 1801,
indeed, the Reverend Horne Tooke was returned
for the borough of Old Sarum; and some doubts
being entertained by the house as to his eligibility,
he was permitted to retain his seat; but an act
was immediately passed, which disqualifies all
::
par-
/
93
priests and deacons, and ministers of the church
of Scotland, in future, to be representatives of the
people in parliament. All persons attainted of
treason or felony are likewise disqualified,--for
they are not fit to sit any where. Nor are the
sheriffs of counties, nor mayors, and bailiffs of
boroughs eligible in their respective jurisdiction's,
because they are the returnig officers; however
they may be elected in other places, where they
are not official characters. It is not necessary
that a member should be an inhabitant of the place
for which he is chosen.
Certain offices render the holders of them ineli-
gible to sit in parliament; such as commisssoners
for prizes, agents for regiments, officers of the
excise and customs, clerks of the treasury, navy,
exchequer, &c. &c. No one is eligible who holds
any new office under the crown created since 1705;
or any pension during the pleasure of the king, or
for any term of years. If any member accept of
an office under government, he vacates his seat;
but is capable of being re-elected. An officer in
the army or navy, however, does not vacate his
seat by receiving a new commission.
It is necessary that every candidate have a clear
estate of freehold or copyhold to the value of £.600
per annum, to render him eligible as a knight of
the shire; and of £.300 per annum in estate, to be
elected a citizen or burgess. The eldest sons of
peers, and of persons qualified for knights of the
shire, and candidates for the universities, are
excepted from this general rnle.
;
94
:
Every subject of the realm is eligible, of com-
mon right, to a seat in the house of commons, 'un-
der the restrictions already specified; but the
member returned must make oath of his qualifica-
tion, and give the particulars in writing at the time
of taking his seat.--So much as to the electors and
elected.
Let us proceed to take a view of the legal pro-
ceedings at elections of members of parliament.
Elections must be proceeded in according to the
law of parliament, and a variety of statutes made
for their regulation.
As soon as the parliament is summoned, the
lord chancellor sends his warrant to the clerk of
the crown in chancery, who thereupon issues out
writs to the sheriff of every county, for the elec-
tion of all the members to serve for that county,
and every city and borough therein, which is cus-
tomarily represented. But if a vacancy happen
during the sitting of parliament, the speaker of the
house of commons issues his warrant for an elec-
tion of a new member, by order of the house; and
without such order, if a vacancy occur by death,
during a recess for upwards of twenty days. The
sheriff, within three days after receiving his writ,
must send his precept, under his seal, to the pro-
per returning officers of the cities and boroughs,
commanding them to elect their members; and the
returning officers must proceed to the election
within eight days from the receipt of the precept,
giving four days notice of the same, and return the
1
95
persons chosen, together with the precept, to the
sheriff. In the borough of New Shoreham, in
Sussex, the election must be within twelve days,
with eight days notice of the same.
With respect to a county election, the sheriff
himself must attend at the next county court
after the delivery of the writ, to proceed in the
election at the most usual place; which cannot be
altered without the consent of all the candidates,
and then ten days public notice must be given of
the tinie and place of election. If the county court
should fall 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.
The law has made very wise provisions for
securing the freedom of elections; for as soon as
the time and place of election are fixed for coun-
ties or boroughs, all soldiers quartered in the
place, are compelled to remove, at least one day
before the election, to the distance of two miles
or more, and not to return till one day after the
poll is ended.
The house of commons has the right of deter-
mining the merits of the case in all disputed elec-
tions; and it has frequently determined, that riots
at an election make it void.
By a vote, too, of the commons, it has been
declared, that no lord of parliament, or lord lieu-
tenant of a county, has any right to interfere at
elections; and it is provided by statute, that the
96
lord warden of the cinque ports shall not recom-
mend any members there. Should any officer of
the public revenues presume to interfere in elec-
tions, by persuading or dissuading any voter, he
would be liable to a forfeit of £.100, and be dis-
abled to hold any office.
Thus are the popular elections made as secure
against the violence and compulsion of the crown
and nobility, as human laws can make them; but
such is the depravity of human nature, that the
freedom of elections is much more endangered by
the very candidates and electors themselves, than
by any other person whatever. The infamous
practice of bribery and corruption, like a swelling
flood, breaks down all barriers, and ingulphs thou-
sands in the ocean of drunkenness and perjury.
There are, indeed, severe laws against these
abominable practices, but they are often evaded,
and it is to be feared ever will be, so long as the
human heart remains “ deceitful above all things,
“and desperately wicked.” It may, however, be
observed, that it is unlawful, after the date of
the writ, for any one to give or promise to give
money or entertainment to the electors, either to
particular persons or to the place in general, in
order that he may be elected, on pain of being
incapable of serving 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 who takes as he who offers the
97
.
!
bribe, forfeits £.500, and is for ever incapable
of voting and holding any office in any corporation.
But if any person guilty of bribery, will, before
conviction, discover some other offender of the
same kind, he is indemnified for his own offence,..
and exempted from its due punishment.
Before the sheriff or other returning officer pro-
ceeds in the election upon the day appointed, he
must take an oath against bribery, and for the due
execution of his office; the candidates also, if
required, must swear to their qualifications; the
electors in counties to theirs; and the electors
both in counties and boroughs are likewise com-
pellable to take the oath of abjuration, and that
against bribery and corruption.
When a poll is demanded at any election, it
must commence either that day, or at farthest upon
the next, and shall be continued from day to day,
(Sundays excepted) until it befinished; and it shall
be kept open at least seven hours each day,
between eight in the morning and eight at night;
but if it should be continued till the fifteenth day,
then the returning officer shall close the poll at or
before three in the afternoon, and shall immediately,
or upon the next day, publickly declare the names
of the persons who have the majority of votes; and
he shall forth with make a return accordingly, unless
a scrutiny be demanded by any candidate, or by
two or more of the electors, and he shall deem it
necessary to grant the same; in which case it shall
bę lawful for him to proceed thereupon; but so as
1
98
1
Any person who
that in all cases of a general election, if he have the
return of a writ, he shall cause a return of the mem-
bers to be filed in the crown office, on or before
the day upon which the writ is returnable. If he
be a returning officer, acting under a precept, he
shall make a return of the members at least six
days before the day of the return of the writ.
After the elections are closed, the sheriff returns
the whole of the precepts, with the persons elected
by the majority ; together with the writ for the
county, and the knights elected thereupon, to the
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 occa-
sional vacancy; under penalty of £.500.
If the sheriff or returning officer make a false
return, the former is liable to a penalty of £.100,
and the officer of a borough or city of £.40, besides
being subject to an action for double damages, by
should bribe the returning officer, shall, on con-
viction, forfeit £.300.
The persons returned are necessarily the sitting
members, until the house of commons, upon peti-
tion, shall adjudge the return to be false and illegal.
The method which the house takes when an
election petition is to be presented to it, is regu-
lated by the excellent statute called “Grenville's
"act," under its present improved state. This
act directs the way by which a select committee
shall be appointed to try the merits of a disputed
99
case.
election, and how they shall proceed in their
examination of witnesses, and deliberations on the
The whole committee, consisting of fifteen
members, take a solemn oath in the house, that
they will give a true judgment according to the
evidence; and every question is determined by a
majority. If the committee report that the petition
or defence is frivolous or vexatious, the party
aggrieved shall recover costs.
On the first day of the meeting of every new
parliament, the lord steward of his Majesty's
household administers the necessary oath to the
members present; and then executes a commis-
sion, empowering certain members specified in it
to administer the same oath to others.
The office or trust of a member of parliament
cannot be resigned, but every member is obliged
to discharge the duties of it, unless he can shew
such cause as the house, in its discretion, shall
think a sufficient excuse for his non-attendance
upon a call of the same. If the house be not
satisfied with the reason which any member gives
for not attending, when it is called over, he is
ordered into the custody of the serjeant at arms.
A form which is attended with an expense to the
party of about £.5 per day. On the motion of
some friend, the house then orders him to be re-
leased from the custody, upon paying theusual fees.
The only way in which a member, who wishes
to retire from parliament, can vacate his seat, is to
accept of an office under the crown. And it is
.
100
now usual to grant the office of steward of the
Chiltern Hundreds to any member who asks for it,
to enable him to vacate his seat. The Chiltern
Hundreds, in Buckinghamshire, and the manor of
East Hundred, in Berks, are districts that belong
to the crown. For time immemorial they have
had officers belonging to them, with the title of
stewards; who, it is remarkable, derive neither
honour nor profit from their appointments; 60
that in fact these stewardships are now merely
nominal offices, which, however, answer the pur-
pose for which they are bestowed,
Such being the laws, little else is wanting but a
vigorous and conscientious application of them, to
secure the freedom of elections.
CHAP. VII.
THE SAME SUBJECT CONTINUED.
!
Upon the opening of every session of parliament,
the king either in person or by his commissioners
addresses both houses in a speech from the throne.
This speech is taken into consideration by each
house, and a suitable address of thanks to his
Majesty voted. But as the precedence due to the
crown was formerly taken undue advantage of,
the house of commons maintains its claim of
choosing for itself the order in which it will
transact its business. That the king's speech,
101
10
therefore, may not be the first subject of debate,
the clerk of the house usually prepares a bill of
little or no importance, which obtains the honour
of being read before the king's speech is discussed.
At the beginning of the sessions, too, the house
of commons fixes a day as the last upon which
it will receive petitions on private bills.
It is now proper to consider the method of
making laws. This is much the same in both
houses; and it is necessary to premise, that, for
the dispatch of business, each house of parlia-
ment has its speaker. The lord chancellor, or
any other appointed by the king's commission,
presides, and regulates the formality of business
in the house of lords; and if the king should not
appoint one, it is said, the house can elect their
speaker.
The house of commons always elect their own
speaker, who must be presented to the king for
his approbation.
Mr. Hume says that Peter de la Mere, chosen
in the first parliament of Richard II. was the first
speaker of the house of commons; but this seems
to be a mistake, for it appears by the rolls of
parliament, that Sir Thomas Hungerford addressed
king Edward III. in the name of the commons, to
pray that he would pardon several persons who
had been convicted in impeachments. And even
Sir Thomas is not mentioned as if his office was a
novelty.*
1
* Professor Christian,
102
1
The speaker of the house of commons cannot
give his opinion or argue a question in the house ;
whereas the speaker of the upper house may, if
he be a lord of parliament. But they both preside,
to keep order and regulate the debates in their
respective houses.
In both houses the act of the majority binds the
whole. This majority is openly declared, so that
the people at large may judge of the conduct of
their representatives; and this notoriety must
necessarily produce a very beneficial effect in
preserving the integrity of the members of both
houses. It is true, that when the house of com-
mons is about to divide, the speaker orders the
gallery to be cleared, and all strangers are obliged
to withdraw, that the members may be free from
all popular influence in giving their votes. But as
two tellers are appointed to count the votes on each
side, there can be no collusion or deception in the
decision of any question; while, at the same time,
this method is attended with sufficient publicity
for every constitutional purpose. Indeed it has
ever been held the law, rule, and usage of the
house of commons, that all strangers were there
only by sufferance. Whenever, therefore, a mem-
ber gives notice to the speaker that he perceives
any strangers, it is the invariable custom for the
speaker to order them to withdraw; otherwise the
serjeant at arms would take them into custody,
and thus enforce the standing order of the house,
for their exclusion.
103
The publishing of the speeches delivered in
parliament is a very modern practice, and certainly
a breach of the privileges of its members; and as it
may at any time be prohibited by the enforcing of
the standing order of the house, printers of news-
papers ought to be very careful, lest, by their mis-
conduct, they should deprive us of a daily indul-
gence, which we are very apt, erroneously, to
regard as one of our inherent rights.
The reign of William III. is the period to which
we often refer the consummation of our liberties,
without duly considering how much they have
since been enlarged; yet we find, that on the 220
of April, 1699, a committee of the house of com-
mons, “Resolved, that the publishing the names of
“ the members of this house, and reflecting upon
them, and misrepresenting their proceedings in
parliament, is a breach of the privilege of this
house, and destructive of the freedom of parlia-
“ ment!” And on the 26th of February, 1701, it
was resolved, “that to assert the house of com-
mons have no power of commitment but of their
“ own members, tends to the subversion of the
“ constitution of the house of commons; and that
“ to print or publish any book or libel reflecting
upon the proceedings of the house, or any mem-
“ber thereof, relating to his service therein, is a
high violation of the rights and privileges of the
* house of commons." And lord Camden declared
in the case of Mr. Wilkes, “There is no difference
:
104
« between the two houses of parliament in respect
“ to privilege."
In the house of commons the speaker cannot
vote, unless the ayes and noes be equal, and then
his casting vote decides the majority : but in the
house of lords the speaker votes with the house;
and if the contents and non-contents be equal, the
non-contents have the effect of an absolute majority.
The commons cannot proceed to business unless
there be forty members present; and to insure a
full attendance on any particular occasion, the
house is frequently ordered to be called over upon
a certain day.
Two peers, however, besides the speaker, are
sufficient to constitute a house of lords; but it often
happens, that an order is made for the lords to be
summoned.
The business in parliament is preceded every
day of its sitting by prayers, which are read to the
lords, by the junior bishop; and by the chaplain
to the commons, in the lower house.
To bring a bill into the house of commons, if the
relief sought by it be of a private nature, it is
necessary to prefer a petition; which is presented
by a member, and usually sets forth the grievance
desired to be removed. And if the petition be
founded on facts, that may in their nature be dis-
puted, it is then referred to a committee of mem-
bers, who examine the matter alleged, and report
it accordingly to the house; and then (or other-
1
105
-
wise, upon the mere petition), leave is given to
bring in the bill.
With respect to public bills, they are introduced
by way of motion to the house, without any pe-
tition; and it is usual, first of all, for a member to
give notice of his future intention, to move for
leave to bring in his bill.
Acts of parliament were first introduced into the
house according to the modern custom in the reign
of Henry VI. all bills drawn before that time being
in the form of petitions. For it was long after its
creation, or rather separation from the barons, that
the house of commons was conscious of its own
strength and dignity.
When leave is given to bring in a bill, the per-
sons directed to bring it in, present it in a com-
petent time to the house, drawn oụt upon paper,
with a number of void spaces, where any thing
occurs that is dubious, such as dates, penalties, or
sums of money to be raised, &c.' which is, in fact,
only the skeleton of a bill.
When a private bill begins in the house of lords,
it is referred to two of the judges, to examine into
the facts, to settle all technical proprieties, and to
see that all necessary parties consent. The bill is
now read a first time, and at a convenient distance
a second; and after each reading, the speaker opens
the substance of the bill to the house, and puts the
question, whether it shall proceed any farther.
For the introduction of the bill, as well as the bill
H.
1
106
itself in all its different stages, may be opposed,
and if the opposition prevail by a majority, the bill
must be dropped for that session.
After the second reading, the bill is committed;
that is, referred to a committee, which is selected
by the house in matters of small moment,; but on
a bill of consequence, the house resolves itself into
a conimittee of the whole house, consisting of all
its members. This is effected by the speaker's
quitting the chaix, which another member is ap-
pointed to take, who is styled chairman of the
committee. In this committee the speaker may
sit, debate, and vote as a private member.
In the committee the bill is discussed, clause by
clause, amendments made, the blanks filled up,
and sometimes the bill new, modelled. The chair-
man now reports it to the house, with such amend-
ments as the committee have made; and then the
house re-considers the whole bill, and the question
iş again put upon every clause and amendment.
When the house has agreed or disagreed to the
amendments of the committee, and sometimes
added new ones. of its own, the bill is ordered to
be engrossed, or written in a strong gfoss hand,
upon one or more long rolls of parchment sewed
together. When this is done, the bill is: read a.
tlun eh time, and further amendments are sometimes
made to it, New clauses may be even now added
to the bill, but this must be done by tacking a
separate piece of parchment to it, called a rider.
+
11
107
The speaker now again opens the contents of
the bill; and holding it up in his hands, puts the
question whether the bill shall pass. If this be
agreed to, the title to it is then settled; and one
of the members is directed to carry it to the lords
for their concurrence. The member then goes,
attended by several others, to the bar of the house
of lords, and there delivers the bill to their speaker,
who comes down from his chair, called the wool-
sack, to receive it. Here it goes through the same
forms (except engrossing) as in the other house; if
rejected, no further notice is taken of it. If the
lords agree to the bill, they send a inessage to the
commons, by two miasters in chancery, saying,
that they have agreed to the same; and the bill
remains with the lords, if they have made no
amendments in it. But if any amendments be
made, they are sent with the bill to the commons,
for their concurrence; should the commons not
consent to the amendments, a conference usually
follows between members deputed by each house,
to adjust the difference; and if both parties remain
inflexible, the bill is lost.
When the commons agree to the amendments,
the bill is sent back to the lords, with a message to
acquaint them therewith: and the same forms are
observed (mutatis mutandis) when the bill origi-
nates in the house of lords.
An act of grace, however, is first signed by the
king, and then read once only in each house,
without any engrossing or amendment.
H 2
108
1
When the bills have passed both houses, they
are always deposited in the house of lords, to
wait the royal assent; excepting bills of supply,
which, after passing the lords, are returned to the
house of commons.
The giving of the royal assent to bills is a matter
of great ceremony; and may be done, either by
the king in person, or by commission. In the
former case, the king goes in his state coach,
drawn by eight horses, to the house of lords,
where he appears in his crown and royal robes;
and, sending for the commons to the bar of the
house, the titles of all the bills that have passed
both houses are read; and the king's answer is
declared by the clerk of parliament, in Norman
french. His Majesty is attended by the great
officers of state and heralds. A seat on the right
hand of the throne is preserved for the prince of
Wales. The other princes of the blood sit on the
left hand of the king; and the lord chancellor
upon a close bench, removed a little backwards.
The viscounts and barons face the throne, upon
benches, or wool-packs, covered with red cloth
or baize. The bench of bishops runs along the
house to the bar on the right hand of the throne;
as that of the dukes and earls does on the left.
The chancellor and judges sit between the barons
and the throne. It is generally thought, that the
house sitting upon wool, is symbolical of wool
being formerly the staple commodity of the king-
dom. Upon solemn occasions, the lords appear
109
1
in their parliamentary robes. None of the com-
mons have any robes, excepting the speaker, who
wears a long black silk gown; which, when he
appears before the king, is trimmed with gold.
When the king consents to a public bill, the
clerk declares “Le roi le veut,” “The king wills
“ it to be so;" if to a private bill, “Soit fait
“ comme il est desire," " Be it as it is desired.”
A money bill is carried up and presented to the
king, by the speaker of the house of commons;..
and the royal assent is thus expressed, “Le roi
“ remercie ses loyales sujets, accepte leur benevolence,
“ et aussi le veut," "The king thanks his loyal
subjects, accepts their benevolence, and wills it
u so to be."
For an act of grace, which begins with the
royal assent, the clerk of the parliament thus
pronounces the gratitude of the subject, " Les
“prelates, seigneurs, et conmons en ce present par-
“ liament assembless, au nom de touts vous autres
“ sujets, remercient tres humblement votre Majesté,
“ et prient a Dieu vous donner en santé bonne 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 God to grant you in
“ health and wealth long to live.”
The royal assent may also be given by commis-
sion; in that case the king grants letters patent to
certain lords therein named, under his great seal,
signed with his hand, and notified in his absence to
ܐܐ
110
both houses assembled together in the house of
peers. When the royal assent, in either ways, is
given to a bill, then it becomes an act of parlia-
ment, and not before.
But the king is invested with the same constitu-
tional power of rejecting any bill, as the two
houses of parliament enjoy; and it is said, that
queen Elizabeth carried this privilege so far, as to
negative at one time forty-eight bills that had
passed both houses.
The last time the royal
dissent was given to a bill, was in the year 1692,
when king William III. refused to pass the bill
for triennial parliaments into a law, although two
years afterwards he consented to the measure.
In refusing his assent to a bill, the king employs
the gentlest language, “ Le roi s'avisera," “ The
“king will advise on it."
Such, then, being the necessary forms through
which every bill must pass before it can have the
force of a law; it is impossible that the people at
large car be taken by surprise : for there is not
only time allowed for the members to discuss
every subject deliberately in the house, but suffi-
eient opportunity afforded to the people out of
doors to petition against any measure which they
may conceive will be injurious to their interests.
Formal promulgation of an act is not necessary
to give it the force of law; because every man is
supposed to be present by his representatives, at
its making. But copies of it are usually printed at
the king's press, and transmitted to the chief
111
magistrates throughout the kingdom, forthe pubřic
information.
A law once made.cannot be repeated; amended,
or dispensed with, but by going through the same
'forms, and by the same authority of parliament by
which it was enacted. The king himself cammet
dispense with any penal statute, without conisetit
of parliament. An actof parliainent having power
to bind every:subject in the realm, and even the king
himself, if named therein, is the highest authority
upon earth, which this kingdom acknowledges.'
By the authority of each house, the parliament
is adjourned every day. By which nothing more
is meant than a continuance of the session froin
one day to another: Sometimes, indeed, it is
adjoumed för a fortnight together as at the
Christmas and Easten holidays, or upon any other
particular occasion. But the adjourninent of one
house does not adjoun the otherc éadlracting by
its own authority! .-.'.
. The king has, properly speaking, no power to
adjourn the parliament; but whenever he signifies
his pleasure that both houses should adjourn to a
certain day, it is usual for both lords and commons
to obey the king's will; because a refusat would
-certainly be followed by a prorogation.
A Prorogation, is the continuance of parlia-
ment from one session to another; as an adjourn-
ment is of the session from day to day. The par-
liament is prorogued by the king's authority,
expressed either by the lord chancellor in his
pen
112
Majesty's presence, or by commission from the
crown, or sometimes by proclamation. In either
of these ways; a prorogation puts an end to the
session; and the bills which had been begun, but
not finished, must be resumed de novo, in the next
session, and go through all the same forms as at
first, before they can pass into laws.
A dissolution, is the civil death of parliament,
and is effected by the king's will, expressed either
in person or by representation. The king only has
the power of dissolving the parliament, because he
has the sole right of convening it.
It would be very dangerous both to the king and
the constitution, if the two houses of parliament
had a right to dissolve themselves; for then they
might choose to become perpetual. This was
actually the case in the reign of Charles I. who
unguardedly passed a bill to continue the parlia:
ment then in being, till it should please to dissolve
itself. The consequence was, that the king fell a
sacrifice to the inordinate power he had unad-
visedly created, and the whole government was
subverted.
A dissolution of parliament takes place also at
the demise of the crown; but the parliament in
being continues for six months after the death of
any king or queen, if not sooner prorogued or
dissolved by the successor. Should the parlia-
ment be adjourned or prorogued at the time of the
royal decease, it shall nevertheless immediately
assemble. Or, if there be no parliament existing
1
113
1
at the time, the members of the last parliament
shall convene, and be a parliament again. And
as danger might arise from the king's prerogative
of perpetuating the parliament, a dissolution of it
necessarily takes place, likewise, by time.
Formerly, the parliament was triennial; but
now the period of its legal existence is seven years.
This alteration was effected by statute 1 Geo. I.
ch. 38, in order professedly to avoid the frequent
recurrence of expense at elections, and to preserve
the peace and security of government, just then
recovering from popish rebellion.
A dissolution of parliament affords the subject
an opportunity of shewing his disapprobation of
his representative, by refusing to send him again
to parliament; or of expressing his satisfaction of
his conduct by re-electing him. And the repre-
sentatives knowing that a day will come, when
they shall be obliged to appeal to the voice of the
people; and that they themselves are equally
bound, with their constituents, by the laws they
pass, will naturally be careful to enact none but
what appear to them to be equitable, reasonable,
and salutary.
:
CHAP. VIII.
OF THE EXECUTIVE POWER.
It has already been observed, that is striking
feature in the English constitution, is the separa-
tion of the executive, from the legislative power;
and that consequences extremely beneficial to the
people, result from the depositing of the execution
of the laws in the hands of an individual. If the
executive authority were lodged in the hands of
more persons than one, a diversity of opinion
would often arise; and indecision, delay, and
and danger consequently ensue. A stagnation in
the head, would necessarily paralise the members,
and ultimately destroy the very life of the Body
Politic. The late experiment in a neighbouring
nation of an executive directory, composed of
several persons, may serve to shew us whát-great
miseries come upon a land when : 6
many are the
privces thereof."
The general consent of the people, evidenced by
by long and immemorial usage, has vested the
executive power of the English government in the
person of the king or queen; for it is indifferent to
which sex the crown descends.
This consent of the people, however, is not to
be so understood, as though there really ever were
115
a time and place, when and where, the population
of the island met together to choose their king
there being no traces of any such event in any
history. And although this choice of the people is
a favourite article in the creed of some speculativë
politicians; it is almost certain, that the fact never
existed in any country since the world began.
Nothing, at least, is farther from the truth; than
that the crown is so held by the king of England.
It does not consist with the limits of this work
to enter into enquiries repecting the origin of
governments in general, or of the English govern-
ment in particular. The subject is confessedly
involved in much obscurity, and after all that has
been, or can be said, respecting it, the best solu-
tion of the difficulty is given in few words by an
inspired writer, who affirms that “ the powers that
“be, are ordained of God.” The probability is,
that the earliest governments were universally
monarchies; that the wisest, inost upright, or
bravest man obtained the ruling power by the
general consent of the community;* and that the
title of king, was that by which the chief governor
in every nation was originally distinguished.t Bät
whatever the origin of our government may have
?
* Omnes antiquæ gentes regibus quondam paruerunt. Quod
genus imperii primum ad homines justissimos et sapientissimos
deferebatur.
Cic. de Legibus, lib. 3.
+ Reges (nain in terris nomen inperii id primum fuit.)
Sallast. Bell. Catil.
N
1
116
been, the king of Great-Britain is, at this day,
king by a fixed rule of succession, according to
the laws of his country.
Beyond all controversy, the English government
has been monarchial from the remotest period of
its existence. That the royal office has always
been hereditary, and not elective, has never been
denied but by the republicans, who beheaded
king Charles I. They, indeed, asserted the ina-
lienable right of the people to elect their supreme
governor; and soon afterwards, with great con-
sistency, the crown was offered to Cromwell, by a
house of commons, convened by the sole authority
of the usurper. But the title of Cromwell himself
to the supreme power, rested merely upon the
instrument of government, which was drawn up
by a council, consisting only of his general officers.
What share the people had in proposing to make
hm a king, may be seen in the histories of that
time:
In 1656, Cromwell summoned a parliament;
when, not trusting to the good-will of the people,
he used every art to influence the elections, which
he had new modelled, in order to fill the house with
those who would be devoted to him. But after
all his precautions, he found the majority would
not be favourable to him; he therefore placed a
guard at the door, and no one was permitted to
enter the house of commons who did not produce
a warrant from his council. This packed parlia-
ment voted a renunciation of all title in. Charles
117
--
Stuart, or any of his family; and at length, on
the motion of alderman Pack, one of the members
for London, passed a bill for investing the usurper
with the dignity of king.–So much, then, for the
choice of the people.
The grand fundamental maxim respecting the
right of succession to the throne of England and
its dependencies, is, “ that the crown is, by com-
“ mon 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 he-
“reditary."
The crown of England is hereditary. Not that
a divine right, to the throne is intended; for a
hereditary succession and a divine right have no
necessary connection; as may be seen in several
of the kings of Israel. The Jewish establishment
was peculiarly theocratic; and the kings of that
distinguished race were, in a literal sense, the
“ Lord's anointed." But the rulers of all other
nations have been, and still are, subject to the
general and ordinary dispensations of Divine Pro-
vidence.
The hereditary right to the crown, acknow-
ledged by the laws.of England, originated with the
wise founders of our constitution, who preferred
making it a hereditary rather than an elective mo-
narchy. Their policy has obtained the general
consent and an established usage; and conse.
:
118
1
quently the king has the same title to the crown,
that a private man has to his hereditary estate.
H, indeed, there were no corruption in the hu-
man heart to endanger the exercise of just princi-
ples, an elective monarchy would be most favour-
able to the liberties of the subject; because the
most suitable person would, probaily, under such
circumstances, be chosen to the supreme autho-
rity. But the experience of all ages has convinced
every considerate man, that popular elections are
unavoidably attended with great inconvenience;
and that undue influence, ambition, power, and
artifice, will, almost always, prevail over virtue and
integrity.
And the fact is, as we learn from history, that
the elections of the ancient imperial governors
were universally accompanied with bloodshed and
murder. It is true, that the more modern Polish
and German rulers have been elected with less
cruelty and slaughter since the number of voters
has been diminished; yet the elevation of these
elective princes to the throne, formerly raised the
bitter waters of discontent and sedition to an
alarming height, and they subsided latterly only in
proportion to the fall of the fountain from which
they flowed. But what Englishman, who has wit-
nessed the scenes of riot and confusion which are
exhibited at the election of a representative in par-
liament, will not rejoice that the succession to the
crown is marked out with a constitutional preci-
119
sion; that a rule is laid down, which is uniforin,
universal, and permanent; and that hereby the
peace and freedom of the state are preserved!
The particular inode of inheritance to the crown
corresponds, in general, with the feudal descent,
marked out by the common law in the succession
to estates.
The crown descends, lineally, to the issue of the
reigning monarch, as it did from king John to
Richard II. through a regular succession of six
generations. The right of primogeniture amongst
the males, and of the males in preference to the
females, is also a constitutional rule in the descent
of the crown.
Thus Edward V, took the crown
in preference to Richard, his younger brother, and
to Elizabeth, his elder sister. Upon failure of the
male line, the crown descends to the eldest of the
female issue, and the heirs of her body lawfully
begotten; and not jointly to the female issue of
the same degree, as in common inheritances.
This descent of the crown to the female line in
failure of the male issue, is an ancient British cus-
tom. For our forefathers were often led to battle
by women, and they paid no regard to sex with
respect to the individual who administered the
executive government.*
The doctrine of representation likewise prevails
in the descent of the crown, as in other inheri-
* Voadica generis regii femina duce (neque eniin sexum iul
imperiis discernunt) şumpsere universi bellum.
Tacit in Vit. Agricolæ, s. xvi.
120
tances; thus Richard II. succeeded his grandfather,
Edward III. in right of his father, the black prince;
and George III. took the crown on the demise of
his grandfather, George II. in right of his father,
Frederick, prince of Wales, and each to the exclu-
sion of all their uncles.
In the event of failure of lineal descendants, the
crown devolves to the next collateral relations of
the late king, provided they are lineally descended
from the 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 William the Conqueror.
And if there be no kinsman of the whole blood, a
relation of the half blood will undonbtedly suc-
ceed to the throne ; as was the case with Mary I.
who succeeded Edward VI, and of Elizabeth, who
ascended the throne on the death of Mary; all
being the children of Henry VIII. and each by
different mothers.
The doctrine, however, of hereditary right, by
no means implies an indefeasible right to the crown.
The parliament consisting of king, lords, and
commons, has the power to defeat this hereditary
right, and exclude the next heir, by enacting the
inheritance to descend to any one else, whenever
it thinks fit. The constitution has lodged this
power in the supreme legislature in order to avoid
the inconvenience and distress that the whole
nation must experience, were an idiot or lunatic
necessarily to inherit the throne; and on the other
121
6 most
hand, to avert the miseries that must accrue to the
reigning monarch, at all times, were any such
authority expressly confided to the people, who are
so liable to be influenced by caprice, and hurried
on by the most ungovernable passions. Hence it
is plain, that the English constitution disclaims all
such political theories, as a right, inherent in the
people, either to choose or to set aside their king:
This is clear from the bill, called, the “ Declara-
“ tion of right;" in which the lords and commons
consider it, “ as a marvellous providence, and
“ merciful goodness of God to this nation to pre-
« serve” king William and queen Mary
happily to reign over us on the throne of their
“ ancestors, for which, from the bottom of their
hearts, they return their humblest thanks and
“praises.” King James II. had broken the legal
conditions of the compact of sovereignty; and by
abdicating, had vacated the throne. But the two
houses, in the bill of rights, did not thank God
that they had found a fair opportunity to assert a
right to choose their own governors, much less to
make an election the only lawful title to the crown:
but on the contrary, in order to exclude for ever
the doctrine of " a right to choose our own gover-
nors,” a subsequent clause of that immortal law
just mentioned, declares, thåt “ the lords spiritual
“ and temporal, and commons, do, in the name of
“ all the people aforesaid, most humbly and faith-
fully submit themselves, their heirs and posterity
I
122
for ever; and do faithfully promise, that they will
“ stand to, maintain, and defend their said Majes-
- ties, and also the limitation of the crown, herein.
specified and contained, to the utmost of their
“powers.” Is it not, then, very surprising that
any sensible person can infer the doctrine of " a
right to choose our own governors,” from the
revolution in 1688? since if we had possessed it
before, it is clear that the English nation did at
that time most solemnly renounce and abdicate it,
for themselves and for all their posterity for ever.
Our ancestors wisely considered that however spe-
ciously the abstract principle of such a right might
appear in theory, it could never in the nature of
things be reduced to practice.
The true spirit of our constitution, not only in
its settled course, but in all is revolutions, is,
hereditary succession to the reigning monarch, whe-
ther he obtained the crown by law or by force.
Hence, in our laws, the king in his political capa-
city is said never to die; because he lives in his
successor; although like other men he is naturally
mortal.
: The regular inheritance of the British throne has,
indeed, been often changed and usurped by fraud
and violence; as will be seen by a short historical
view of our kings. But the beautiful feature of
hereditary succession marked the infancy of our
government, bloomed in its manhood, and is inde-
libly graven in the wrinkles of its increasing age.
123
It is now time to take, historically, a constitutional
view of the royal title to the crown of England.
Egbert, who was the first king of England, and
last of the Saxon heptarchy, was king of the West
Saxons, by a long and uninterrupted descent from
his ancestors, of above 300 years; and united the
heptarchy in one monarchy under him in the year
828. How his ancestors obtained their titles, it is
in vain for us to enquire, since there are no docu-
ments that will satisfy such political curiosity.
So it was, that Egbert became sole monarch of
England, partly by the consent of the other six
kingdoms of the heptarchy, and partly by conquest
over them.
From Egbert, the crown descended regularly
for two hundred years, through a succession of
fifteen princes, to the death of Edmund Ironside,
without any deviation or interruption; except that
the sons of king Ethelwolf succeeded to each other,
without regard to the children of the elder branches;
and also that king Edred, the uncle of Edwy,
reigned about nine years, during the minority of
Edwy, on account of the troubles of the times
But when of age, Edwy assumed the reins of
government.
At the death of Edmund Ironside, Canute, king
of Denmark, obtained the kingdom by violence,
and a new family possessed the throne. Three of
his heirs succeeded to the crown, and on the
death of Hardicanute, the ancient Saxon line was
I 2
124
.
restored in Edward the Confessor, who was the
next of kin then in England. On the decease of
Edward, Harold II. usurped the government; for
Edgar Atheling, the grandson of Ironside, was the
lawful heir. Harold being defeated at the battle
of Hastings, was dispossessed of the throne by
William the Conqueror. Robert, the eldest son of
the Conqueror, being duke of Normandy by his
father's will, was kept out of the possession of the
crown of England, by the arts and violence of his
brothers, William II. and Henry I. who succeeded
their father.
The real heiress to Henry, was his daughter, the
empress Matilda; but Stephen usurped the throne,
having only the feeble title of being grandson to
the Conqueror, by his mother's side.
Henry II. the undoubted heir of the Conqueror
after his mother Matilda, and also lineally descend-
ed from Edmund Ironside, the last of the Saxon
hereditary kings, succeeded Stephen.
Henry was succeeded by Richard I. who dying
childless, the right vested in his nephew Arthur,
the son of Geoffry, his next brother; but John the
surviving brother of the king, seized the crown, to
the exclusion of his nephew; the doctrine of repre-
sentation being then not clearly understood.
Henry III. who succeeded his father, king John,
had an indisputable title, for Arthur and his sister
Eleanor both died without issue, and the crown
descended from Henry to Richard II. in a regular
succession of five generations.
125
Richard II. resigned the crown, which was
taken possession of by Henry IV. who was the
son of John of Gaunt, duke of Lancaster, fourth
son of Edward III. His title, however, was not a
just one; för Lionel, duke of Clarence, third son
of Edward III. left a daughter Philippa, from
whom descended the house of York. But Henry
having a large army at that time at his command,
asserted his title with effect. And by statute 7
Henry IV. ch. 2. it was enacted, “ that the inheri-
" tance of the crown and realms of England and
France, and all other the king's dominions, shall
“ be set and remain in the person of our sovereign
“ lord the king, and in the heirs of his body issu-
ing." By which statute, it is obvious that the
title of Henry appeared at that time very doubt-
ful; and it is equally clear, that the king and par-
liament had the right of changing and limiting
the succession of the crown.
But" the beginning of strife is as when one let-
“ teth out water.” No man can tell when a river
breaks through its banks and rushes from its
accustomed channel, what devastation it will occa-
sion. The usurpation of Henry gave rise to the
contest between the houses of York and Lancas-
ter; the princes of which, like Sampson's foxes,
spread, by their jarring interests, desolation and
misery through the land for several subsequent
generations.
Henry was succeeded by his son and grandson,
Henry V. and Henry VI. In the reign of this
126
1
weak prince, the house of York asserted its dor-
mant title; and after intestine war and bloodshed
for seven years, at length established it in the
person of Edward IV.
In all acts wherein Edward had occasion to
speak of the Henries of the house of Lancaster, he
calls them “lately in deed not of right, kings of
England;" and hence first arose the distinction
of a king" de jure, and a king "de facto."
On the death of Edward, the crown descended
to his eldest son, Edward V. who, with his brother
the duke of York, are generally believed to have
been murdered in the tower, by order of their
uncle, Richard, duke of Gloucester; after he had
insinuated into the populace, a suspicion of the
bastardy of the two young princes, and of their
sister, Elizabeth, to whom the crown by right
devolved, on the death of her brothers. "' But the
wicked and unnatural uncle usurped the govern-
ment, under the name of Richard III. He en-
,
joyed, however, the fruits of his villainy a little
more than two years, when his tyranny excited
Henry, earl of Richmond, to assert his title to the
crown. Richard being slain in the battle of Bos-
worth, Richmond took possession of the crown by
the style of Henry VII. although nothing could be
more preposterous than his claim; for he was
descended from a natural son of John of Gaunt,
whose own title had been exploded. Henry,
however, was confirmed in the throne by an act
of parliament, in the first year of his reign. But
:
127
the right of the crown was undoubtedly in Eliza-
beth, the daughter of Edward IV. This princess,
the heiress of the house of York, Henry married,
in 1486, and thus settled the fierce and bloody
contests between the two families. How myste-
rious are the ways of God! How often does he
overrule the wickedness of man, for the accom-
plishment of the greatest benefits to the world!
Had it not been for the atrocity of Richard, his
nephews and their heirs would have reigned ; and
probably the horrors of a civil war been much
longer protracted: Or had he conducted the
affairs of government with justice and moderation,
instead of wearying out the people with oppression
and tyranny, so monstrous a title as that of the
earl of Richmond's would never have been asserted.
But having succeeded in his pretensions as the
heir of the house of Lancaster, Henry married
Elizabeth, who after the murder of her brothers,
became the undoubted heiress not only of the
house of York, but also of the Conqueror, the
common royal stock.
Henry VIII. the issue of this marriage, became
therefore king, by a clear and indisputable heredi-
tary right; and to him his three children suc-
ceeded in regular order. Edward VI. following
his father, was succeeded by his two sisters. Yet
the parliament exercised its constitutional right of
regulating the succession, by passing various acts
respecting the legitimacy or illegitimacy of king
128
Henry's two daughters, queen Mary and queen
Elizabeth
On the death of queen Elizabeth, the line of
Henry VIII. became extinct; and the crown of
course devolved on king James VI. of Scotland
and first of England, who was the lineal descendant
of Henry VII. whose eldest daughter by Elizabeth
of York, married James IV. of Scotland. So
that king James had an undoubted hereditary right
to both the English and Scottish crowns; and was
the heir both of Egbert and William the Conqueror.
In James, therefore, centred all the claims of the
houses of York and Lancaster; and what is more
remarkable, in him, also, the old Saxon line was
restored.
James believed firmly in the doctrine of the
“ divine right of kings," but the parliament recog-
nizing his succession, by statute 1 James I. ch. 1.
mentioned not a word about any right immediately
derived from God, but simply acknowledged his
Majesty “as being lineally, justly, and lawfully,
next and sole heir of the blood royal of this
66 realm.”
James was succeeded by his eldest son, the
unfortunate king Charles I: whose unconstitutional
judges told that unhappy monarch, that he was an
elective prince; and as such, accountable to his
people, in his own proper person; although nothing
could be more absurd and false than such a doc-
trine, since Charles could deduce an undeniable
129
hereditary title for more than 800 years, and was
unquestionably the real heir of Egbert, the first
king of England. To be sure it was very natural
that men who were about to strike off the head of
the king, not by the just sentence of the law, but
with the arm of violence, should deny the consti-
tutional inviolability of his person. Nor is it sur-
prising, that in the commission of such an act, as
putting his Majesty to death, they should tell him
he was an elective and not an hereditary king. For
they could not but foresee that the demise of the
king would only make way for his son, if they
admitted the ancient doctrine of hereditary suc-
cession to the crown. That such a successor
would call them to an account for the death of his
father, they naturally kept in mind, when they
talked about an elective prince to the exclusion of
a hereditary monarch.
The violent death of king Charles, made way
for the usurpation of Cromwell, who assumed the
title of lord protector.
After an interregnum of about eleven years, a
solemn parliamentary convention of the states
restored the crown to the right heir, king Charles
II. In their proclamation to restore the king, the
convention declared, that "immediately on the
“ death of king Charles I. his Majesty Charles II.
" was the lineal, just, and lawful next heir of the
“ blood royal of this realm ; and to him they most
humbly and faithfully submit and oblige thein-
“selves, their heirs, and posterity for ever.
130
During this reign, a bill passed the commons to
exclude the king's brother; the duke of York, from
the succession, on the ground of his being a papist,
but was rejected by the lords, and the king also
declared he never would consent to it; so that on
the death of Charles, the duke succeeded by the
name of James II. - But from this attempt of the
commons to exclude James from the succession; it
was clearly and universally acknowledged, that the
crown was an inheritance indefeasible, unless by
parliament. And also that the parliament had
the power of defeating the inheritance.
The infatuated king James, after various and
notorious attempts to establish an arbitrary govern-
ment, independently on the law, voluntarily va-
cated the throne by abdication. But our ancestors
very prudently voted in both houses of parliament
that the misconduct of king James amounted only
to an endeavour to subvert the constitution. The
Scotch convention, however, declared " that king
" James VII. being a professed papist, had not
"taken the oath required by law; but had, by the
45 advice of evil and wicked counsellors, invaded
the fundamental constitution of this kingdom,
.“ and altered it from a legal and limited monarchy,
to an arbitrary despotic power, whereby he had
"forefaulted the crown, and the throne was become
“ vacant.” Thus by simply declaring the throne
yacant, it followed of course, that the two houses
of parliament had the sole right and power of filling
it up in such a manner as they should judge most.
1
si
1
131
66
proper. This right they exercised by the following
declaration, dated February 12th, 1688, stating,
“ 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
“ 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."
From this important transaction, justified clearly
from the necessity of the case, some have inferred
the inherent right of the people of England to
cashier their king. Yet nothing can be more falla-
cious than such reasoning; it being the indispen-
sable duty of every christian to submit himself to
the lawful authority established in his country. So
long then as the king of England governs his con-
duct by the laws of his realm, he cannot be resisted
or dethroned by his subjects, without their being
guilty of open rebellion against God.
Towards the end of the reign of king William,
the duke of Gloucester, the son of Anne (after-
wards queen), dying, with him all hopes of a
protestant succession failed: and the parliament
had previously enacted, that no person professing
the popish faith should ever be capable of inherit-
ing, possessing, or enjoying the crown of these
realms.
132
In this dilemma, therefore, the remainder of the
crown, expectant on the death of king William
and queen Anne without issue, was settled by
statute 12 and 13 W. III. ch. 2. on the princess
Sophia, dowager electress of Hanover, and gran-
daughter of king James I. and on the heirs of her
body, being protestants.
Queen Anne succeeded to the throne on the
death of king William; she died without issue,
but surviving the princess Sophia, of Hanover,
transmitted the crown to her son and heir, king
George I. To him succeeded his son, king George
II. on whose demise, his grandson, the present
king ascended the throne of his ancestors. Can
we possibly refuse to acknowledge and admiré
the wisdom and goodness of the Divine conduct
towards this nation, which are so visibly displayed
at almost every turn of our public affairs? The
power of parliament had secured Great-Britain
against ecclesiastical tyranny, by the exclusion of
every popish pretender to the crown; and now it
pleased God, by the death of the duke of Glouces-
ter, to cut off the arbitrary race of the Stuarts,
and thus 'make way for the accession to the
British throne of a new dynasty, whose princes
have been uniformly the friends, the protectors,
the promoters both of civil and religious liberty.
Upon the whole view of the subject, it may
be
clearly seen that the title to the crown is at present
hereditary, though not altogether as absolutely so
as formerly; because, before the revolution the
133
crown went to the next heir, without any restric-
tion; but now the descent is conditional
, being
limited to such heirs only of the body of the prin-
cess Sophia, as are protestant members of the
church of England, and are married to none bụt
protestants.
The line of succession having repeatedly been
changed by parliament, different common stocks
have been thereby created. The first common
royal stock was king Egbert; then William the
Conqueror; afterwards, these two were united in
the person of king James I. which continued till
the abdication; and now the common stock is the
princess Sophia of Hanover.
It is penal to dispute the constitutional power
of the king and parliament to new-model and alter
the succession: for by statute 6 Anne, ch. 7. it is
enacted, “ that if any person maliciously, advised-
“ ly, 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 main-
“ tain the same by only preaching, teaching, or
" advised speaking, he shall incur the penalties of
“ a premunire."
This power has been often exercised, as circum-
stances required; either by a convention, when
there was no king, as in the proclaiming of king
Charles II. and the filling up of the vacancy which
James II. had occasioned; or, by the king and
1
134
parliament, in the various instances that have been
stated.
It is not to be imagined that king James destroyed
the monarchy when he abdicated the throne, and
thus dissolved the constitution: by no means; for.
although a king may abdicate for his own person,
he cannot abdicate for the monarchy, any more
than the house of lords or house of commons can
renounce each its share of legislative authority.
Neither was the placing of king William upon the
throne, making the monarchy elective. The neces-
sity of the case obliged the convention parliament
to fix the crown somewhere: but they adhered to
old principles, and enacted the succession of the
crown; so that they did not change the substance,
but regulated themode of succession, and described
the persons who should inherit the crown for ever.
The monarchy, therefore, is as.purely hereditary
now, as it ever was.
The real fact, then, with regard to the constitu-
tion, both in its settled course and in all its revo-
lutions, has ever been this: that whoever came
into possession of the crown, or however he came
into it, whether by law or by force, the hereditary
succession was either continued or adopted.
It may bé said, that if a vacancy happen in the
throne, by whatever cause, the English people
have then a right to frame a government for them-
selves. It is true, that this right devolves to the
two houses of parliament, as the constitutional
organs by which the will of the people may be
135
66
expressed; for the preamble to the bill of rights
expressly declares, “ that the lords spiritual and
* temporal, and commons, assembled at Westmin-
“ster, lawfully, fully, and freely, represent all the
* estates of the people of this realm.” But it is
worthy of observation, how carefully and delicately
the convention parliament in 1688 disclaimed the
assumption of such an abstract right as some have
contended for. In the statute of 1 W. and M. the
parliament prays the king and queen, “ that it
may be declared and enacted, that all and singu-
" lar the rights and liberties, asserted and declared,
are the true ancient and indubitable rights and
“ liberties of the people of this kingdom.”
· And in all the various changes of the succession
to the crown, it has been the uniform policy of our
legislators to claim and assert our liberties, as an
entailed inheritance derived to us from our forefa-
thers, and to be transmitted to our posterity. By
this means, our constitution preserves an unity in
60 great a diversity of its parts. We have an inhe-
ritable crown, an inheritable peerage; and a house
of commons, and a people inheriting privileges,
franchises, and liberties, from a long line of ances-
tors. The true constitutional notion, therefore of
the right of succession to the crown of the united
kingdom, consists in the happy medium between
an elective monarchy, which will ever be produc-
tive of tumult and anarchy; and an indefeasible
divine right, which when coupled with unlimited
passive obedience, is slavish and dreadful. But
+
136
the chief excellency of the hereditary right of the
kings of England is, that it is closely interwoven
with those liberties that are equally the inheritance
of the subject; an union beautiful in theory, and
the most beneficial in practice.
CHAP. IX.
OF THE ROYAL FAMILY.
Having taken a view of the king's title, it will be
right in the next place to consider his Majesty's
Royal Family; the first and most considerable
branch of which, acknowledged by the laws of
England, is the queen. .
By the queen, may be understood, either the
queen regent, or sovereign, who holds the crown, ,
in her own right; as did the first Mary, queen
Elizabeth, and queen Anne: or, the queen consort ;
that is, the wife of the reigning king: or, the queen
dowager; that is, the widow of a deceased king.
The queen consort, has, by virtue of her marriage,
many prerogatives different from other wives.
She is a public person, distinct from the king;
and is able to purchase lands, to convey them,
and make leases, without the concurrence of her
lord, which no other married woman can do.
The queen can also receive a grant from the king,
which no other wife can do from her husband.
137
queen herself.”
And she has likewise separate courts and officers
distinct from the king's, not only in ceremony, but
in law. Her Majesty can sue and be sued alone,
without joining her husband. She may have sepa-
rate property in goods as well as lands; and may
dispose of them by will. In short, the law con-
siders her, in all respects, as a single, and not as a
married woman. And Sir Edward Coke assigns
a reason for this singularity: “ The king,” says he,
being continually engaged in public affairs, the
“ common law would not have him troubled about
“ his wife's domestic concerns; and therefore has
“ vested the sole power of transacting them in the
'
There are, moreover, several privileges enjoyed
by the queen. She pays no toll; nor can she be
amerced in any court. But in general, unless
expressly exempted by law, she is upon the same
footing with other subjects; she herself being the
king's subject, and not his equal. Her life and
person, however, are placed under the same secu-
rity as the king's; it being equally high treason to
compass or imagine the death of the one as of the
other. And to violate her person is also high trea-
son; not only in him who commits the crime, but in
the
queen likewise, if she be consenting.
Should the queen be accused of any species of
treason, she must be tried by the peers of parlia-
ment; as was queen Anna Boleyne, in the reign of
king Henry VIII.
K
1
138
The law considers the husband of a queen reg:
nant, as prince George, of Denmark, was to queen
Anne, only as her subject; and he may be guilty
of high treason against her; but in the instance of
conjugal infidelity, he is not under the same penal
restrictions as the queen. For, although an illegi-
timate heir might succeed to the crown through
the frailty of a queen consort, yet no such danger
arises from the inconstancy of the husband of a
queen regnant.
It is not high treason, however, to conspire the
death of a queen dowager, or to violate her chas-
tity; because the succession to the throne is not
thereby endangered. Yet to preserve the royal
elignity, no man can marry the queen dowager
without special license from the king.
The queen dowager does not lose her regal dig-
nity by marrying a subject; for Catharine, queen
dowager of Henry V. married Owen Tudor, a
private gentleman; and yet maintained an action
against the bishop of Carlisle, by the name of
Catharine, queen of England.
The prince of Wales, or heir apparent to the
crown, his royal consort, and the princess royal, or
the king's eldest daughter, are likewise peculiarly
regarded by the laws. It is high treason to con-
spire the death of the prince. And for the same
reasons as have already been assigned, it is no less
a críme to violate the chastity of his royal consort,
or of the princess royal; for the latter being inhe-
ritable to the crown, on failure of the male issue,
139
is more respected by the laws than her youngest
sisters.
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.
Edward II. was the first prince of Wales.
When his father had subdued the kingdom of
Wales, he promised the people of that country,
upon condition of their submission, to give them a
prince who had been born amongst them, and who
could speak no other language. Upon their ac-
quiescence with this deceitful offer, he conferred
the principality of Wales upon his second son,
Edward, then an infant. But this creation has
not been confined to the heir apparent, for both
queen Mary and queen Elizabeth were created by
their father, Henry VIII. princesses of Wales;
each of them at the time being only heiress pre-
sumptive to the crown. Elizabeth was created
princess of Wales on the illegitimation of Mary.
The rest of the royal family are to be considered
in 'a two-fold view. In an extensive sense, the
royal family includes all the protestant issue of
the princess Sophia of Hanover: bụt in a more
confined meaning, it comprehends none but those
who are in a certain degree of relationship to the
reigning prince; and to them the law pays an
extraordinary regard and respect.
!
K 2
140
The privileges enjoyed by the younger branches
of the royal family, are in general the same as all
other subjects have in common. The king's chil-
dren, however, have the privilege of sitting at the
side of the cloth of state in the parliament cham-
ber; and, together with the king's brothers, uncles,
grandsons, and nephews, they take the precedence
of all other nobility.
The royal family is certainly subject to pay
taxes, unless expressly exempted (which is always
the case) in every tax bill. But the peculiar pri-
vileges of the royal family are greatly counter-
balanced by the legal restraints laid upon all the
branches of it, with regard to marriage. For, by
statute 12 George III, ch. 11. no descendant of
George II. (other than the issue of princesses mar-
ried into foreign families) is capable of contracting
matrimony without the previous consent of the
king, signified under the great seal: and any marri-
age contracted without such consent is void. Yet
any of the royal family of the age of twenty-five
years, may, after a twelvemonth's notice given to
the king's privy council, contract and solemnize
marriage without the consent of the crown; unless
both houses of parliament shall, before the expira-
tion of the said year, expressly declare their disap-
probation of such intended marriage. And in
case such prohibited marriage be contracted, all
persons solemnizing, assisting, or being present at
it, shall incur all the penalties of a premunire.
CHAP. X
OF THE COUNCILS.
Kings, as well as every other denomination of
chief executive magistrates, are but men. And
when it is remembered that they inherit the same
corrupt nature, are governed by the same unhal-
lowed passions, and are liable to the same fallible
judgments as their subjects; when, likewise, the
extent, the weight, and the importance of civil
government are duly considered; the necessity and
wisdom of allowing them counsellors to assist them
in the discharge of their duties, the support of their
dignities, and the exertion of their prerogatives,
will be abundantly manifest to all.
Monarchs, in all ages, have enjoyed the privi
lege of being assisted in the administration of .
government, by confidential servants, denominated
counsellors. At least the important office of a
counsellor is as ancient as the book of Job, in
which, mention is made of the “ kings and coun-
“ sellors of the earth.” The utility of this office
may likewise be collected from the inspired pages.
“ In the multitude of counsellors," says Solomon,
“ there is safety:" and Isaiah is instructed to pro-
mise the Jews, " that the Lord would restore
142
" their counsellors, as at the beginning.” The
remioval of wise and upright men from the head of
public affairs, is to be regarded as a serious cala-
mity. “ Behold! the Lord, the Lord of Hosts,
“ doth take away from Jerusalem, the judge, the
prudent and the honourable man, the counsellor,
" and the eloquent orator.”
The constitution of England has, from the be-
ginning, allotted to the king various councils, to
advise his Majesty, respecting the adoption and
execution of the public measures. Of these coun-
cils, is the high court of parliament, which has
been already spoken of.
The peers of the realm are, by their birth, heredi-
tary counsellors of the king, and may be called
together by him to impart their advice, either in
time of parliament, or when no parliament is sitting.
As hereditary counsellors, the peers at all times,
enjoy a freedom from arrest, because the law sup-
poses that they are always either assisting the king
with their counsel for the public welfare, or keep-
ing the safety of the realm, by their skill and bra-
very. They were formerly, frequently convened
to give the king their advice in state affairs; but
the practice has of late fallen into disuse, being
rendered unnecessary by the frequent and more
regular meetings of parliament,
A peer of the realm has a right, in virtue of his
character, as hereditary counsellor of the crown,
to demand an audience of the king, to lay before
him, with decency and respect, such matters as
143
.
66 the coun-
he shall consider of importance to the state. And
therefore in the reign of Edward II. it was made
an article of impeachment against the two Hugh
Spencers, " that they would not suffer the great
“men of the realm, the king's good counsellors, to
speak with the king, only in their presence.”
The judges, also, are the king's counsellors in
matters of law, but in no other sense.
But the principal council of the king is his privy
council; called, by way of eminence,
“ cil.” The members of which, are so constituted
by the king's sole will; and are excluded from it
by his causing their names to be struck out of the
book.
The privy council in ancient time, consisted of
only about twelve members; afterwards it was
increased to thirty, by. Charles II. and now the
number is indefinite. A privy counsellor conti-
nues such during the life of the king who.chooses
him, subject to removal at his pleasure. No
inconvenience arises from the extension of the
number of the privy council, as those only attend
who are specially summoned for that particular oc-
casion upon which their advice and assistance are
required. The cabinet council, as it is also some-
times called, consists of those ministers of state
who are immediately honoured with his Majesty's
confidence, and who are summoned to consult on
the important and arduous discharge of the execu-
tive authority. Their number and selection depend
solely upon the king's pleasure; and each mem-
)
144
ber of that council receives a summons or message
for every attendance.* No part, however, of the
executive authority of the king is vested in his
privy council: the constant style of the law being
the king in council, and not the king and council.
The whole business centres in the sovereign, who,
indeed is advised by his council; but it is said,
that the votes of the members are not even
counted.t
As to the qualifications of a privy counsellor,
any natural born subject of the united empire is
capable of being made one, upon his taking the
proper oaths for the security of the government,
and the test for the safety of the church. But a
naturalized foreigner is prohibited from sitting in
the council, by statute 12 and 13 W. III. ch. 2.
А. person, however, who is born abroad of English
parents is not thereby disqualified.
The duty of a privy counsellor appears from his
oath of office, which consists of seven particulars :
first, To advise the king according to his cunning
and discretion. Secondly, to advise for the king's
honour and good of the public, without partiality
through affection, love, meed, doubt, or dread.
Thirdly, To keep the king's council secret.
Fourthly, To avoid corruption. Fifthly, To help
and strengthen the execution of what shall be there
resolved. Sixthly, To withstand all persons who
would attempt the contrary. And lastly, in
* Professor Christian - De Lolme.
145
1
general 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 offenders to safe custody, to take their trial
in some of the courts of law. But lest this power
should be arbitrarily employed to the oppression
of the subject, any one who suffers a false impri-
sonment by the privy council, is entitled to a writ
of habeas corpus as much as if he had been com-
mitted by an ordinary justice of the peace. Thus
the late John Wilkes, Esq. obtained a verdict with
£.1000 damages and full costs of suit, against the
secretary of state, who cornmitted him to the tower
under a .general warrant, afterwards declared to
be illegal. And lest they should avail themselves
of the royal sanction to justify any unlawful or
dangerouş measures of the government, the con-
stitution has very properly made them answerable
to the public for the king's political conduct,
instead of making him accountable in his own
person. But as their exalted stations and impor-
tant duties necessarily expose them to the envy of
their fellow subjects, the law has assigned them
certain privileges, to secure them against attempts
and conspiracies to take away their lives. By
statute 9 Anne, ch. 16, it is enacted, “that any
person who shall unlawfully assault and strike or
so wound any privy counsellor, in the execution of
“his office, shall be a felon, without benefit of
146
“ clergy.” ; Which statute was made in conse-
quence of the daring attempt of the Sieur Guis-
card, who, when under examination for high
treason, before a committee of the privy council,
stabbed Mr. Harley, afterwards earl of Oxford,
with a penknife.
Privy counsellors also have honorary precedence,
next to the knights of the garter.
The king can dissolve the privy council at his
pleasure ; he can also discharge any individual
member, or the whole of it, and appoint another,
whenever he pleases. The confidential servants of
the crown, who are sometimes denominated in
popular language, “the administration,” the king
removes from the cabinet when he sees fit, with
as much ease as he changes the ornaments and
furniture of his drawing room. It is usual, how-
ever, for the ministers, when they find they can
continue in office no longer, voluntarily to resign.
But should they not do this, a written message is
sent them, signifying, " that his Majesty has no
6 further occasion for their services." And this
official notice they must implicitly obey, by deli-
vering up their respective seals of office to the
sovereign at the time appointed. But to prevent
inconvenience on the king's demise, the council
continues six months afterwards, unless sooner
dissolved by his successor.
Such are the duties and privileges of the privy
council; and whoever duly reflects, that upon
their wisdom, diligence, and integrity, the interests
147
and happiness of the whole. kingdom very much
depend, will see the propriety of onr public peti-
tion, that God would “be pleased to bless the
“ lords of the council, and all the nobility, with
grace, wisdom, and understanding."
CHAP. XI.
OF THE DUTIES OF THE KING.
We learn from the sacred scriptures, that “there
“is no power but of God," and that subordination
in society is clearly his wise and merciful dispen-
sation.
The king of England is exalted highly above
the people whom he governs; and the constitution
regards his person as so sacred, that no jurisdiction
upon earth has power to try him in a criminal way,
much less to condemn and inflict any punishment
upon him. No suit, even in civil matters, can be
brought against the king, for no court can have
any authority over him. The placing of the person
of the king above the law is not the effect of a mere
visionary theory, or of idle superstition and folly,
as too many absurdly imagine; but is the result
of the profound wisdom of our forefathers, who
well knew that the liberty and safety even of the
meanest subjeet could be secured only by the free
agency of the executive as well as of every branch
of the legislative power. But although the king's
148
person is inviolable, yet his conduct must be regu-
lated by fixed rules. He must govern according
to the known laws of the realm. But it
But it may be
asked, “what security have the people that he
“ will do so, since he is not accountable to them
“ for his actions ?” We answer, that, besides the
security resulting from the responsibility of his
ministers, the king is laid under the solemn obli-
gation of an oath, and being amenable to the bar
of God, must give an account of himself to him
at the last day. It is a strong internal evi-
dence of the divine authenticity of the new tes-
tament, that rulers and subjects are alike admo-
nished what they ought to be, and what they
ought to do; and that the duties of every relation
in life are impartially stated, without respect of
persons. The king is “the minister of God” to
his people, “ for good," and consequently he is
bound to exercise his high authority, agreeably to
the divine will. But whilst he is the minister for
good, he is also “a revenger to execute wrath
“ upon him that doeth evil. Wherefore we must
“needs be subject not only for wrath, but also for
* conscience' sake.”
This moral obligation upon the conscience,
however, does not prohibit any prince from ruling
according to the laws peculiar to the nation which
he governs, but makes it his duty to do so, unless
such laws militate against the laws of God;
therefore it will be proper to enquire into the
149
duties of the king of England, which are incum-
bent upon him by the constitution of his country.
The principal duty of the king is, doubtless, to
govern his people according to law; the duties of
protection and subjection being reciprocal. These
mutual duties are what appear to be meant by the
original contract between the king and his people:
the terms of which are expressed or implied in the
coronation oath, which, by statute 1 W. and M.
ch. 6, is to be administered to every king and
queen who shall succeed to the imperial crown of
these realms, by one of the archbishops or bishops,
in
presence of all the people; who, on their parts,
do virtually take the oath of allegiance to the
crown. The coronation oath is couched in the
following solemn words:
The archbishop or bishop shall
say:
solemnly promise and swear to govern the
people of this kingdom of England, and the
“ dominions thereunto belonging, according to the
“statutes in parliament agreed on, and the laws
" and customs of the same."
The king or queen shall shall say : “ I solemnly
promise to do so."
Archbp. 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.”
Archbp. or bisliop. “Will you to the utmost of
your power, maintain the laws of God, the true
profession of the gospel, and the protestant
" Will you
150
" 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 gospels, 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.
And it is required by the bill of rights and act
of settlement, that every king and queen of the
age of twelve years, either at the coronation, or on
the first day of the first parliament that shall
happen, shall, upon the throne in the house of
peers, repeat and subscribe the declaration against
popery.
The coronation oath is the same in substance as
the kings of England took before the revolution.
But the wording of it was changed at that period;
because the oath itself had been framed in doubtful
words and expressions with relation to ancient
laws and constitutions, at this time unknown.
CHAP. XII.
OF THE ROYAL PREROGATIVE.
pre and
By the king's prerogative, is to be understood
that special pre-eminence which the king has, in
right of his regal dignity, over and above all other
persons. The word is derived from
rogo,
and signifies something that is required and de-
manded in preference to all others. There is no
stronger proof of the existence of that genuine
liberty which is peculiar to Englishmen, than the
right they enjoy of discussing and examining, with
respect and decency, the limits of this exclusive
privilege of the king.
The direct prerogatives of the king are of three
kinds, (viz.) such as regard his royal character;---
those which relate to his royal authority;-and
such as refer to his royal incoine.
The term royal dignity implies not only those
large powers and emoluments which the law
bestows upon the king in his high political charac-
ter, and which constitute his prerogative and reve-
nue;
but likewise certain attributes of a great and
transcendent nature. By which the people are led
to consider him as a very exalted personage, and
to pay him that awful respect which may enable
152
1
him, with greater ease, to carry on the business of
government.
The first attribute which the law ascribes to the
king is sovereignty, or pre-eminence; as the minis-
ter of God he is inferior to no man, dependant on
no man, accountable to no man on earth : for if
any foreign jurisdiction had any power over him,
as was formerly claimed by the pope, there would
be an end to British independence; and if such
authority were vested in any domestic tribunal,
the destruction of the government would soon fol-
low. Such was the effect of the mock trial of
king Charles I. That unhappy prince, firmly,
consistently, and consitutionally denied the autho-
rity of the court that condemned him. But in
vain did he plead his own rights and those of his
people, before a tribunal erected by democratic
violence, which trampling upon the law of the land,
completely overturned the constitution. If, indeed,
the king invade the rights of the subject, either by
private injuries or public oppressions, the law has
provided, in both cases, a reinedy. Should any
person, for instance, have any just demand on the
king, in point of property, he must petition him in
his court of chancery, where his lord chancellor
will administer right as a matter of grace, though
not upon compulsion.
So likewise in cases of ordinary public oppres-
sion; as the king, politically speaking, can do no
no wrong, impeachments and indictments will lie
against those evil counsellors and wicked ministers,
153
without whose bad advice and criminal assistance
the king could not misuse his power, nor act in
contradiction to the laws of the land.
Another political attribute of the king is abso-
Tuete perfection. The ancient and fundamental
maxim, that “ the king can do no wrong," does
not mean that he is not subject to the same pas-
sions and infirmities as other men; but that the
constitution has prescribed no mode by which he
can be made personally amenable for any wrong
that he may actually commit. The law will there-
fore presume no wrong where it has provided no
remedy. And, in fact, the inviolability of the
king is essentially necessary, not for his own pri-
vate gratification, as the ignorant are too apt to
suppose; but for the preservation of the liberty of
his subjects. The king, like the sun, shines not so
much to exhibit his own splendor, as to animate
all around him. He is the centre of attraction;
around which the different bodies in the political
system revolve, and by whose influence they are
preserved in their proper places and order. The
king is not capable, politically, of even thinking
wrong. For should he make any grant, for in-
stance, contrary to reason, or prejudicial to the
state, or to any individual, the law will not impute
any blame to him; but suppose that he was mis-
led and ill-advised, and thereupon such grant is
rendered void. The two houses of parliament,
however, have a constitutional right of remonstra-
L
154
ting and complaining to the king, even of those
acts of royalty which are properly his own. This
is often done in canvassing the messages to each
house signed by the king, and in deliberating on his
speeches from the throne. Yet to preserve de-
cency and the freedom of debate, the members
usually consider the speeches and messages from
the throne, as the compositions of the ministers of
state; and therefore have always thought them-
selves at liberty to examine every proposition in
them with freedom. This privilege, however, of
examining the personal acts of the sovereign, be-
longs exclusively to the houses of parliament, and
is, even there, to be exercised with all due respect.
A third legal attribute of the king, is his perpe-
tuity; for the law ascribes to him, in his politicať
capacity, absolute immortality. The king never
dies. Edward or George may die, but the king
survives: because immediately on the natural death
of the sovereign, his regal or imperial dignity is
vested, by act of law, in his heir, who, without any
interregnum or interval, is king, to all intents and
purposes. And through the tenderness of the law,
the death of the king is usually termed his demise:
the meaning of which expression is, that in conse-
quence of the disunion of the king's natural and
political body, the kingdom is transferred, or de-
mised, to his successor; and thus the royal dignity
remains perpetual
Beside these attributes, the king is possessed
of many other powers and authorities, as branches
155
of his royal prerogative; in the due application of
which consists the executive power. The king is,
in law, properly speaking, the sole magistrate of
the nation; all other magistrates deriving their
power and authority from him.
In the exercise of the prerogatives which the law
has given to the king, he is absolute and irresist-
able. Yet if that exertion be in its consequences
manifestly to the injury of the state, the parliament
will call his advisers to a severe account.
The executive prerogatives of the king may be
viewed, either with respect to the intercourse of
this with other nations; or with regard to its own
civil polity and domestic government.
With regard to other nations, the king is consi-
dered as the representative or delegate of his peo-
ple: what, therefore, is done by him in this relation,
is the act of the whole community; but what is
done without the king's concurrence, is only the
acts of private men.
The king has the sole power of sending and
receiving ambassadors. The rights, the duties
and privileges of ambassadors, are determined
by the laws of nature and nations. An ambas-
sador is not subject to the municipal laws of the
country to which he is sent; but if he grossly
offend, or make any ill'use of his character, he
may be sent home to his master, and accused
before him. However, in the year 1654, during
the protectorate of Cromwell, Don Pantaleon Sa,
the brother of the Portuguese ambassador, who
L 2
!
- the
►
150
had been joined with him in the same commissiott,
was tried, convicted, and executed, for the atroci-
ous murder of one Mr. Greenaway, upon the
Royal Exchange: but Mr. Hume observes,
“ laws of nations were here plainly violated.” Yet
such was the dread of Cromwell, that the court of
Lisbon were obliged to acquiesce in the procedure,
and soon after signed a treaty of peace and alli-
ance with the protector.
In the reign of queen Anne, it was argued before
the judges, whether a foreign ambassador, or any
of his retinue, can be prosecuted for debts con-
tracted in this country. The question, however, :
was never determined. The inquiry was insti-
tuted, in consequence of the arrest of the ambas-
sador of Peter the Great, czar of Muscovy; who
was taken out of his coach in London, for a debt
of £.50, which he had contracted there. At
which the czar was so enraged that he insisted
that all who were concerned in the affair should be
punished with instant death. Instead of comply-
ing with this extravagant demand, the queen
directed her secretary to inform the czar,
" she could infict no punishment upon any, even
“the meanest of her subjects, unless warranted by
“ the law of the land; and therefore was persuaded
"that he would not insist upon impossibilities.”
But an act of parliament was immediately passed
to prevent the like in future; and this was sent,
elegantly engrossed and illuminated, to the czar,
by a special ambassador, with a letter from the
66 that
1
A
157
queen, which gave full satisfaction; and the offend-,
ers were discharged from all further prosecution.
The king's prerogative extends to the making
of treaties, leagues, and alliances, with foreign pow-
ers; and these treaties, &c. so made by the king,
bind the whole nation; but his ministers are
accountable to parliament for their conduct in
advising the ratification of such treaties as may
be deemed prejudicial to the national interest.
The king has also the sole power of making
peace or war. But according to the law of nations,
a declaration of war ought always to precede the
actual commencement of hostilities; that it may
be clearly ascertained, that the war is not the act
of private persons, but the will of the whole nation,
expressed by the authority of its legislative repre-
sentative. The power of concluding peace is of
course vested in the same hands; the parliament
having the like salutary check, in both cases,
upon the conduct of the ministers, who are the
king's advisers.
During a state of warfare, it is usual for the
king to grant letters of marque and reprisals to his
subjects, under his great seal; which authorize
them to attack and seize the property of the enemy,
without hazard of being condemned as robbers or
pirates. This privilege the king bestows, in virtue
of his prerogative. By authority, likewise, of the
king's sign manual, or licenses from his ambassa-
dors abroad, passports are granted, which allow
persons a safe conduct from one nation to another.
158
In domestic affairs, the king's prerogative places
him in a great variety of characters. As a consti-
tuent part of the legislature, he has the prerogative
of rejecting such provisions of parliament as he
judges improper to be passed into a law, The ex-
pediency of which privilege has already been
shewn,
The military power is lodged solely in the king,
as the generalissimo, or first in military command,
within the kingdom; and by virtue of his prero-
gative, he raises and regulates fleets and armies.
And by statute 13 Car. II. ch. 6. he has “the sole
6 command of all fleets and armies, of forts, and
“ of all other places of strength in the king-
“ dom; so that the houses of parliament cannot,
“ nor ought to pretend to the same.” So, also, by
the same power, the king can erect beacons, light-
houses, and sea marks, at his pleasure; and if the
owner of the land, or any other person shall de-
stroy them, or shall take down any tree, steeple, or
other known sea mark, he shall forfeit £.100, or
upon inability to pay, shall be ipso facto outlawed.
Although every person assumes the liberty of
going abroad whenever he pleases, yet undoubt-
edly if the king issue his writ of prohibition under
the great seal, or commanding his return when
abroad; and in either case the subject disobey, it
is a high contempt of the king's prerogative, for
which the offender's lands shall be seized till his
return; and then he is liable to fine and imprison-
ment.
159
Again, although the original power of judica-
ture is lodged in the society at large; yet the king
by his prerogative, is the public distributor of jus-
tice to all his subjects; and this he conveys to
them through the channels of the different courts,
which are erected solely by his authority. There
the proceedings generally run in his name, pass
under his seal, and are executed by his officers.
But such is the infirmity of human nature, that
were the judges in any way, as formerly, depen-
dant on the crown, they would doubtless be under
strong temptations, in many instances, to pollute
the
pure streams of justice, and sacrifice the inter-
ests of the subjects to the caprice and oppression
of those in power. And therefore his present Ma-
jesty began his paternal reign with declaring,
" that he looked upon the independence and up-
rightness of the judges, as essential to the im-
partial administration of justice; as one of the
“ best securities of the rights and liberties of his
subjects; and as most conducive to the honor of
* the crown." Whereupon an act was passed, by
which the judges are now continued in office not-
withstanding the demise of the crown; and cannot
be removed but by a joint address of both houses
of parliament to the king. Formerly they were
appointed “ during pleasure;" afterwards by an
act of William III, the joint address of both houses
was made necessary to remove them; and now it
is not in the power of his Majesty's successor to
deprive them of their office. Their salaries, also,
160
are liberal and certain ; and when incapacitated
for their important duties by age or infirmity, they
retire upon a pension, fixed by law.
But this independence of the judges is not the
only circumstance which excites our admiration.
The existence of the judicial, distinct from both
the executive and legislative, powers, is that which
gives an English court of justice the preeminence
over all others; and renders it, more than any
thing else, a preservative of the public liberty.
For, if the judicial and legislative powers were
united, it is obvious that the lives and liberties of
the subject would be at the disposal of arbitrary
judges, who would not be guided in their decisions
by any fundamental principles of law, but by their
own opinions. And the consequences of an union
between the judicial and executive authorities
would be still more dangerous; for then the privy
council would be under strong temptations to ex-
pound the law in that way that would be supposed
to be most agreeable to the crown.
We see then that this single act of our gracious
sovereign in recommending to his parliament so im-
portant a measure, has been the mean of fortifying
our liberties with a very strong additional barrier.
This alone would justly have endeared the king
to his subjects, had he given no subsequent proofs
of his earnest desire to extend their civil and reli-
gious liberties. This patriotic act of the king is
unexampled in history. Whatwas the great charter
of our liberties, but the involuntary grant of a
161
:
cowardly tyrant? What were the religious advan-
tages obtained at the reformation, but the unfore-
seen effects of the violence of a capricious monarch?
What were the civil privileges secured during the
reigns of the Stuarts, but the reluctant concession's
of princes, who could not resist their parliaments?
What, in short, were even the blessings of the glo-
rious revolution, but the conciliating measures of
a sovereign whose title rested entirely upon the
national feeling? But in this measure we behold
the unbiassed, disinterested conduct of a wise and
virtuous king, solicitous to provide for the happi-
ness of his people.
The king's prerogative likewise invests him with
the privilege of pardoning offences.
For being
the prosecutor in all criminal proceedings, it is rea-
sonable that he should enjoy the delight arising
from a judicious exercise of the power of forgiving
injuries.
Although his Majesty cannot personally distri-
bute justice, yet in the eye of the law he is always
present in his courts. His judges are the mirror
by which his image is reflected. And hence, in
virtue of his prerogative, the king is said to possess
a legal ubiquity.
Another branch of the prerogative, is the power
of issuing proclamations. Not that proclamations
can make a new law, or dispense with one already
enacted; or that they are binding upon the subject,
only as they promulgate any known and acknow-
ledged law. But as the time, manner, and circum-
i
162
stances, of putting laws into execution must fre-
quently be left to the discretion of the executive
magistrate; his proclamations are obligatory, when
they only enforce the laws already made, and do
not go to enact new or dipense with old ones. It
is an established law, for instance, that the king
may prohibit any of his subjects from leaving the
realm. A proclamation, therefore, laying an em-
bargo upon all shipping in time of war, has the
full force of an act of parliament; but a proclama-
tion laying an embargo in time of peace upon all
vessels laden with wheat is contrary to law. And
yet the celebrated lord Camden, who, as will be
hereafter seen, during the period he filled the office
of chief justice of the common pleas, so distin-
guished himself as the maintainer and defender
of the genuine principles of the constitution; soon
after his elevation to the chancellorship, defended
the ministry, upon the ground of state necessity, for
having issued in time of peace, a proclamation,
laying an embargo upon the exportation of corn.
The advisers of this measure (which although ex-
pedient, was certainly unconstitutional), were in-
demnified by a special act of parliament. But
lord Camden contended in a debate in the house
of lords, that no indemnity was necessary for him
and his colleagues; asserting, with some warmth,
that the measure was, at most, “but a forty days
tyranny The fact affords a striking illustration
* Belsham's Memoirs of the Reign of George III. vol. 1.
163
of the wisdom which was manifested, in making
the judges independent on the crown.
Proclamations, however, which are contrary to
law, do not bind the subject, who cannot be
pu-
nished for his disregard of them. Hence, when
seven of the bishops were prosecuted for a libel,
because they presented a petition to the throne,
humbly shewing that they could not comply with
a proclamation of king James II. which went to
dispense with an existing law, they were fully
acquitted of the charge.
The customary style in proclamations and other
official acts of the king which runs in the plural
number we, instead of the singular I, is said to have
been introduced by king John, about the year 1199;
who probably employed it to communicate part
of the merit of his measures to the council who
gave him their advice.
As it is impossible that any government can be
carried on without a due subordination of rank,
the king, by his prerogative, possesses the power
of conferring honours and dignities.
Nothing can be more proper than that this
power should be in the king. For the law sup-
poses, that he who employs his subjects is the
best judge of their meríts and services; and con-
cludes, that he will bestow honours upon none but
those who really deserve them.
The conferring of titles of honour is either ex-
pressed in writing, by writ or letters patent, as in
164
the creation of peers and baronets; or by corpo-
real investiture, as in the creation of a knight.
The king can create new offices as well as new
titles, but cannot annex new fees to them, nor add
new fees to old established offices, for this would
be taxing the subject without his consent; and no
kind of taxation can be legal but by an act of
parliament.
The granting of privileges to individuals, also,
such as place or precedence, and charters to cor-
porations, is equally the prerogative of the crown
as the conferring of titles and offices.
There is another light in which the law views
the king with regard to his prerogative; it consi-
ders him as the arbiter of cominerce. Thus the
king settles the establishment of public marts and
fairs, with the tolls thereunto belonging. He also
regulates the weights and measures, and the
coining of money, to which his authority alone can
give currency. With respect to coining, it is
necessary that the materials, impression, and the
denomination be attended to.
The money of England was formerly either
gold or silver, none other being issued till king
Charles II. in 1672, coined and gave currency to
copper farthings and halfpennies. It must be
stamped by the authority and with the effigy of
the king; and as to its denomination, the king's
proclamation must fix its value.
The king's proclamation gives currency also to
foreign coin, and his Majesty may, at any time,
:
1
165
cry down any coin of the kingdom, and make it
no longer current.
Lastly, in virtue of his prerogative, the king is
considered by the constitution as the supreme
head, in earth, of the church of England. A
distinction which did not originate at the reforma-
tion as some imagine, but which was inherent in
the crown long before the time of Henry VIII. as
appears by many authors, both lawyers and histo-
rians, according to Sir Edward Coke.
It is certain that the king's supremacy is ac-
knowledged not only by the canons and articles of
the church; by the 26 Hen. VIII. ch. 1. and other
acts of parliament; but is recognised likewise by
the common law of the land. By all these laws,
the king is considered as head of the church of
England, under God. Not that the king usurps
the headship of Christ over his spiritual church,
but merely exercises authority over that part of
the visible church, which is established by law in
his dominions. In every christian society there
must be rules, that all things may be done “ de-
cently and in order.” Rules, imply a power
lodged somewhere to enforce them; and this power
in the church of England the law has vested in
the king. By this authority, the king convenes,
prorogues, restrains, regulates, and dissolves all
synods, and ecclesiastical convocations.
The convocation of the clergy in England, is
the miniature of a parliament, wherein the arch-
bishop presides with regal state; the upper house
166
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 its knights of the shire and burgesses. This
constitution is said to have been owing to the
policy of Edward I. who introduced it as a me-
thod of taxing the clergy by their own consent.
An assembly of the English clergy, however,
is, doubtless, almost as old as the settlement of
christianity in Britain. For the bishop of every
diocese had here, as in all other christian countries,
the power of convening the clergy of his diocese
in a conimon synod, council, or convocation, and
of transacting with them such affairs as specially
related to the order and government of the churches
under his jurisdiction. But in the year 1664, by
a private agreement between the archbishop and
the lord chancellor Clarendon and other the king's
ministers, it was concluded that the clergy should
silently wave the privilege of taxing their own
body, and allow themselves to be included in the
money bills prepared by the commons. Since that
time the clergy have been permitted to vote as other
freeholders in electing knights of the shire; a
privilege which before they did not enjoy. This
has made the convocations unnecessary to the -
crown, and merely nominal in themselves. It is
nevertheless agreed, that the convocations are of
right to be assembled with every new parliament;
and that they may act and proceed as provincial
167
councils, when his Majesty in his royal wisdom
shall judge it expedient. But the clergy falling
out amongst themselves in the reign of queen Anne,
they have never since been allowed to transact any
business.
CHAP. XIII.
OF THE REVENUE.
As the advantages of civil government are very
great, so the administration of it is necessarily
attended with considerable expense. Indeed, it
is but reasonable, that the people who derive the
benefit resulting from this ordinance of God,
should contribute towards the defraying of the
unavoidable public expenditure. This should
be done with cheerfulness, because “ rulers are
“ God's ministers attending continually upon this
very thing.” That is, with them rests the
power of levying tribute, and to them is committed
the proper application of it, for the good of the
community.
Taxes probably had their origin from those
ievied by Solon, at Athens, 540 years before
Christ. But the first paid in money in this coun-
try were in 1067; yet subsidies in kind continued
till about 1377.
By the public revenue, is to be understood those
supplies which are. granted to his Majesty to
168
1
- enable him to support his dignity and maintain his
authority and power. It is, in fact, a portion of
his property which every subject contributes to
the exigencies of the state, in order to secure the
rest.
It is just, that they who are encumbered with
the management of public affairs, should be
amply remunerated. And it is for the benefit of
the people that their first magistrate, his family,
and attendants, should be supported with dignity
and splendor ; they are, therefore, very shallow
politicians who would attempt to pluck one feather
from the plumage of royalty.
The revenue may be denominated, either ordi-
nary, or extraordinary.
In the term ordinary revenue, is included that
which has subsisted in the crown time out of
muind ; or, which has been granted by parliament
by way of exchange for such of the king's heredi-
tary revenues as were found inconvenient to the
subject.
The right which the commons enjoy of granting
supplies to the crown, was gradually ascertained
to be inherent in the people. The celebrated Sir
Thomas More appears to have been the first man
who had the courage to oppose a subsidy. This
he did with such effect, although a very young
man, not more than 21 years of age, that the
house actually refused a supply demanded by
Henry VII.*
* Watkins's Biographical Dictionary,
169
The crown, indeed, is now in a great measure
dependant upon the people for its ordinary support
and subsistence. In this very peculiarity of the
constitution, consists that fascinating charm which
always softens -- the insolence of office," and has
sometimes melted the heart of tyranny itself into
courtesy and kindness. This salutary. check in
the hands of the people, prevents the government
from becoming despotic; whilst the absolute power
of the king to dissolve the parliament at his plea-
sure, preserves it from licentiousness and anarchy.
Lords of manors, however, and other subjects,
frequently regard that as their own inherent right,
which, in fact, has been vested in their ancestors
by our earlier princes, to whom it originally be-
longed as part of the royal revenue.
To the king's ordinary revenues belongs the cus-
tody of all the lay revenues, lands, and tenements
which appertain to an archbishop's or bishop's see;
and which, upon the vacancy of any bishoprick,
are immediately the right of the king. This was
formerly a source of great emolument to the crown;
but is now, by customary indulgence, reduced
almost to nothing; for at present all the tempora-
lities are restored untouched to the new bishop at
his consecration,
The privilege which the king has of sending one
of his chaplains to the new bishop to be maintained
by him until he provides him with a benefice, is
called the king's corody; but this is become an
obsolete practice.
M
1
170
Again, the first fruits and tenths of all spiritual
preferments in the kingdom were formerly a branch
of the royal revenue. The first fruits are the first
whole year's profits of any spiritual preferment;
and the tenths, the tenth part of the annual profit
of each living. All of which originated in the
superstitious devotedness of the popish clergy to
the holy see; and being seized by the rapacity of
Henry VIII. were added to the crown at the refor-
mation. The justice, however, of queen Anne,
restored to the church what had been so violently
wrested from it. And in performing this laudable
act, the wisdom of her Majesty was no less con-
spicuous than her equity; for she granted her royal
charter, which was afterwards confirmed by act
of parliament, whereby all the first fruits and
tenths due to the crown, are vested in the names
of trustees for ever, to form a perpetual fund, for
the purpose of augmenting small livings. This is
what is usually called queen Anne's bounty. The
trustees of which are now erected into a corpora-
tion, and have authority to make rules and orders
for the distribution of this fund.
Another part of the ordinary revenue is the rents
and profits of the demesne lands of the crown,
being either a share reserved to the crown at the
original distribution of property or such as fell to
it by forfeitures, or other means.
The prerogative of purveyance and preemption,
also, was anciently a source of considerable profit
to the king; but falling into disuse, during the inter-
1
171
1
regnum, the parliament afterwards granted to king
Charles II. his heirs and successors for ever, fif-
teen pence per barrel on all beer and ale sold in
the kingdom, in exchange for the old privileges
which had become so oppressive to the people.
Besides this hereditary excise, certain rents also
were paid to the crown by such persons as were
licensed to sell wine. But this part of the ordi-
nary revenue was abolished by statute 30 Geo. II.
ch, 9. and an annual sum of £.7000 per annum
issuing out of the new stamp duties imposed on
wine licences, was settled on the crown in its
stead.
There are several other ancient sources of the
ordinary revenue which are now of little moment,
and need only to be mentioned; such as, royal
fish, shipwrecks, treasure-trove, waifs, and estrays;
these, under certain circumstances, are vested in
the crown, as being goods in which 'no one else
claims a property.
Confiscations of property, or forfeitures of lands
and goods for offences, are likewise a part of
the ordinary revenue of the king. There is one
particular forfeiture, called a “ deodạnd;" namely,
the forfeiture to the king of whatever occasions the
death of a person. The origin of which seems to
have been this. In the days of popish superstition,
it was thought necessary to pray for the souls of
departed persons; when, therefore, any one was
killed, the instrument of death was forfeited as a
M 2
172
price to obtain the prayers of the church for the
soul of the deceased. Hence the terın “ deodánd, "
that is, a gift to God. But since the days of papal
darkness, the forfeiture goes to the kịng or lord of
the manor.
The king being esteemed in the eye of the law,
the original proprietor of all the lands in the
kingdom ; those lands revert to him which through
defect of heirs cannot be claimed by the subject.
This branch of the ordinary revenue is called
escheats of lands.
The custody of idiots and lunatics, in ancient
times increased the royal income, but the crown
now derives no profit from this source.
Such is the proper patrimony of the king; which
was formerly productive to an alarming and
oppressive degree; but fortunately for the subject,
these hereditary and casual profits of the crown are
almost all alienated from it. To supply the defects
of which, other methods have been adopted ; and
these constitute the king's extraordinary revenue.
This extraordinary revenue is comprised under
the general term of supplies, which are granted by
the commons of Great-Britain in parliament as-
sembled; who vote a supply to his Majesty, and
afterwards consider of the ways and means of rais-
ing it. But although a vote of the house of com-
mons to raise a supply, be in general esteemed con-
clusive; yet the taxes cannot be gathered till they
are sanctioned by a specific act of the whole legis-
lature. These supplies are granted by the subjects
173
to enable the government to secure them in the
enjoyment of their property, liberties, and lives.
The extraordinary revenue includes the taxes
both annual and permanent. The usual annual
taxes are those upon land and malt.
The land tax, as it now stands, was adopted in
lieu of all former tenths, fifteenths, subsidies on
lands, hydages, scutages, or talliages; and the
method of raising it is by charging a particular
sum upon each county, according to the valuation
given in A. D. 1692. This sum is assessed upon
individuals by commissioners appointed in the
act, being the principal landholders in the county,
and by their officers.
The malt tax is also an annual tax, and is under
the management of the commissioners of excise.
It has existed ever since 1697, but has been fre-
quently altered by additional imposts, down to
the present time,
The permanent taxes include the customs; by
which are meant the duties, toll, or tribute pay-
able on merchandise exported and imported. The
importing or exporting of goods without paying
the customs, is called sniuggling'; which is punish-
able with confiscation of the commodity. This
method of defrauding the public revenue, is a
manifest breach of the divine law; which com-
mands us, to "render unto. Cæsar the things that
“ are Cæsar's;" and to give unto all their dues ;
“ tribute to whom tribute is due, custom to whom
“custom.". Indeed, knowingly to purchase smug
174
gled goods, is as bad as the buying of goods
knowing them to be stolen : for wherein, in a
moral view, does the difference consist? If one
man give 8s. for that which is worth 12s. and
which he knows to have been stolen, and another
give the same sum for the like value, which he
knows to have been smuggled, the only difference
between them seems to be this; that the one in ef-
fect steals.4s. out of his neighbour's house, whilst the
other prevents the same sum from going into the
public treasury. Not that smuggling is exclusively
a defrauding of the public revenue ; the wilful
evasion of the payment of any tax, legally im-
posed, is equally a transgression of the law of
God. However, therefore, this evil practice may
be contended for from worldly motives, it cannot
be defended upon christian principles.
The excise duty is another branch of permanent
taxes: this is an inland impost paid either upon
the consumption of the commodity, or upon the
retail sale of it. The excise laws were first estab-
lished in 1643; from which time they have gradually
been exténded and increased to the present day.
The excise laws have always been rendered
exceedingly objectionable to Englishmen, because
of their infringement of British liberty; by giving
officers power to enter the dwelling houses of
those who deal in exciseable articles, at any hour
of the day and night; and by the summary pro-
ceedings, to inflict the legal penalties before two
commissioners or justices of peace, to the utter
175
exclusion of a trial by jury. . This rigorous law
was first introduced and adopted by the republican
parliament, whose career commenced with the
cry of liberty and reformation. · These reformers
not only began this mode of entering into private
houses; but when the nation had been a little
while accustomed to it, they openly and boldly
declared “the impost of excise to be the most
easy
and indifferent levy that could be laid upon
“ the people;" and accordingly continued it during
the whole of the usurpation.
If we expect a removal of our grievances, real
or imaginary, either from a change in the form of
the government, or of the persons who administer
it, we shall often be disappointed. The source of
all our evils lies too deeply to be eradicated by the
wisdom and power of man; for men of all parties
and opinions alike partake of a fallen and corrupt
nature. “ Hæc omnis morbi causa." This is the
real spring from which all our public and private
calamities flow. Whoever, therefore, is in office,
or whatever be the form of the government, some
excess of expenditure; some misapplication of the
public money ; some preferring of private interest
to the public good ; and some anxiety to provide
for relatives and connexions, may naturally be
expected, though they cannot be defended. * To
.
* The Author takes this opportunity of acknowledging, once
for all, his obligations to the writings of the Rev. and learned
Mr. Scott, author of the “Family Bible," &c. &c. .
176
56
à disregard of the true source of public abuses, is
owing that exclusive pretension to patriotism,
which usually distinguishes the oppositionist from
the minister of state; and to the same cause we
may attribute the disappointment which is gene-
rally felt upon every change of the ministry, at
finding that the candidate for office promised
more than he will or can perform when he is in
power. “He that fancies he should benefit the
public more in a great station than the man that
is fills it, will in time imagine it an act of virtue to
“supplant him; and, as opposition readily kindles
into hatred, his eagerness to do that good to
” which he is not called, will betray him to crimes,
“ which in his original scheme were never pur-
Real patriotism, then, does not consist
so much in a systematic opposition to men in
office, as in a conscientious discharge of the
duties of our several stations.
The salt tax, though not commonly called an
excise, because under the management of different
commişsioners, yet it is subject to the same regu-
lations as excise duties, and makes part of the
extraordinary revenue,
The most popular of the permanent taxes,
perhaps, of any, is the postage of letters. For
whilst the government derives from it a very con-
siderable sum, the people dispatch their business
with far greater ease and cheapness by its means,
posed."*
* See the Rambler, No. 8.
179
than they could do in any other way. This tax
originated in the parliament of 1643, and the rate
of postage has been increased at different times
since.
Postmasters in the country are bound to deliver
the letters to the inhabitants ; and any charge for
so doing is illegal.
By statute 42 Geo. III. ch. 81, it is enacted,
that persons sending letters and packets which
ought to be sent by the post, by any stage coach,
carts, waggons, or any other conveyances what-
ever, are liable to forfeit the sum of £.5, to be
recovered with full costs of suit, by any person
who shall inform and sue for the same. But this
prohibition does not extend to letters sent with
and concerning goods conveyed by any known
carrier of goods, nor to letters sent by any private
friend in his journey, or by any messenger sent on
purpose.
There is another branch of the permanent taxes
which is very beneficial both to government and
the people; and that is, the stamp duty, upon
various kinds of paper and parchments.
The
benefit which the subject derives from this tax,
arises from the difficulty to forge any kind of
deeds of any standing, being hereby increased.
For the commissioners of stamps are often varying
their marks, which are imperceptible to all but
themselves.
The house and window tax, a part of the extra-
ordinary revenue, was first established by parlia-
178
ment in the reign of Charles II. by an impost
called the hearth money. This was abolished by
statute 1 W. and M. ch. 10. but in six years
afterwards was virtually revived by a tax of 3s. per
house, and also upon all windows exceeding nine;
which rate has been gradually increasing to its
present amount. The surveyors, commonly called
window peepers, are allowed by law to survey the
outside of windows; and twice a year to pass
through any house, into any court or yard to
inspect the windows there; but have no right or
power to examine the number of windows by going
about the inside of the house.
The duty arising from licences to hackney coaches
and chairs in and about London, is another part of
the public revenue. In 1654, two hundred hack-
ney coaches were allowed within London and six
miles round, under the direction of the court of
aldermen. In the reign of Charles II. they were
increased to four hundred. These were augmented
to seven hundred by statute 5 W. and M. ch. 22.
and the duties vested in the crown. Since which
time, the number has been raised to upwards of
one thousand coaches and four hundred chairs.
The regulation of which is under a jurisdiction,
whereby a very refractory set of men is kept in
tolerable order, and the public greatly accommo-
dated at a small expense.
Besides the imposts already mentioned, there
ble taxes also upon pensions and offices under the
rown, upon horses, carriages, servants, hair
179
na-
powder, dogs, licences for shooting, armorial
bearings, &c. &c. all of which come under the
general denomination of the king's taxes; and form
a part of the permanent duties.
There are likewise the property tax, and some
other duties which go under the name of “ war
“ taxes;" and these altogether produce yearly an
immense sum. The principal part of which is
applied to the payment of the interest of the.
tional debt.
By the national debt are meant the public funds;
which was an evil consequent on the revolution in
1688. After this great event, which delivered us
from popery and slavery, the expenses occasioned
by our continental wars became so great, that it
was thought unadviseable, and at length found
impracticable, to raise the supplies within the
year. Large sums, therefore, were borrowed by
government, and permanent taxes raised to pay
the annual interest to the public creditors; who
have a nominal capital in the funds, which may
be transferred from one proprietor to another. :
From the yearly taxes, the maintenance of the
king's household and the civil list are supplied.
A great variety of items is included in the pay-
ments of the civil list; in fact, all those which in
any shape relate to the civil government. Such
as salaries to the officers of state, to the judges,
and to the king's servants; the expenses of foreign
ambassadors ; the maintenance of the queen and
royal family; the king's private expenditure, or
180
privy purse; secret service money ; various boun-
ties, pensions, and the like.
Pensions and sinecures bestowed personally or
relatively for services to the state, cannot be ob-
jected to when they are granted with discretion;
but they are greatly abused when given without
any regard to real merit. A free government
is endangered whenever the loyalty of its subjects
is purchased; and probably no state has ever
recovered, that has been once generally infected
with the fatal distemper of bribery. It is, how-
ever, in a moral view, that the evil with us is
chiefly to be dreaded. The specious patriot may
indeed inflame the popular feelings by an outcry
about an increase of taxes for pensioners and
placemen; but it is probable, that were all pen-
sions and sinecures at once abolished, the burdens
of the state would be no more lightened by such a
measure, than a first-rate ship distressed in a storm
would be, by the officers throwing overboard their
pocket money and trinkets: as it appears evident
from the calculations of an experienced financier
of high character, that by the total extinction of
pensions and sinecures, a person paying taxes to
the amount of £.25 a year, would save only
about 2s.*
If, indeed, there were a kingdom or society of
men perfectly virtuous, the direction of public
* See "Observations respecting the public Expenditure, &c."
by the Right Hon. George Rose, pages 63, 64, third edition.
181
affairs would be cheerfully committed to the most
able; and the rest, so far from envying their exalted
station and emoluments, would think themselves
happy in living under their guidance and protec-
tion. All corruption would vanish, and every one
would in some way contribute to the public pros-
perity. But so long as human nature remains
what it is, a perfect government, however hoped
for, can never be expected.*
There can, however, be no doubt, that much
prejudice and mistake prevail amongst even up-
right and sensible men with regard to the extent of
what it is the fashion to call the corruption of the
government and public characters. Every promo-
tion to office is apt to be considered by some as the
effect of corrupt motives, either in the minister who
bestows, or in the person who accepts it; whilst
wisdom, virtue, integrity, and independence are
confidently asserted to be the main spring of every
opposition to the ministry of the day. But impar-
tial and temperate men will reflect that the wisest
and best politicians of all parties, whilst they have
equally the good of their country at heart, may
differ as to the means of promoting it. They will,
therefore, judge charitably of all public persons ;
and be careful not to influence and delude the
ignorant populace by unwarrantable conclusions
respecting the motives of their conduct.
* See Butler's Analogy, part 1. ch. 3.
CHAP. XIV:
OF THE MAGISTRACY.
It has already been seen, that the king, in virtue
of his prerogative, is the sole distributor of justice
to his people. But as it is impossible for him per-
sonally to administer the law, he delegates or com-
missions others to act for him in the character of
magistrates. A subordinate magistracy is marked
with the highest antiquity and authority, as it
seems to have been first adopted by Moses at the
suggestion of Jethro, his father-in-law, whose pru-
dent advice was evidently sanctioned by the divine
approbation.* The experience of all succeeding
ages has borne testimony to the wisdom of Jethro's
counsel. The wisest even of the heathen weré
convinced that a magistracy is essential to the very
existence of civilized society;t although it admits
of being variously modified according to the local
circumstances of different nations.
The
proper qualifications of magistrates, accord-
ing to their original institution, are, that they be
1
* Exodus, ch. xviii. ver. 13—27.
+ Magistratibus igitur opus est: sine quorum prudentia ac
« diligentia esse civitas non potest."
Cic. de Legib. lib. 3.
.
183
"able men, such as fear God, men of truth, hating
covetousness.” The people have great reason to
rejoice when such are in authority, on account of
the many blessings attendant on a conscientious
discharge of the duties of their office.
The obligation of subjects to obey subordinate
magistrates, and render them all due honour, is
equally binding as the obedience which they owe
to the supreme civil ruler.
“ Submit yourselves,"
says St. Peter,“ to every ordinance of man, for
“ the Lord's sake; whether it be to the king, as
supreme; or unto governors, as unto them that
are sent by him: for so is the will of God.” And
St. Paul exhorts, that prayers and thanksgivings
be made for " kings, and for all in authority.”
Hence, our excellent liturgy prays for the magis-
trates, that they may have “ grace to execute jus-
tice, and to maintain truth.”
Throughout the British dominion, there are
several denominations of subordinatè magistrates
who have jurisdiction and authority: they are,
principally, the high sheriffs, coroners, justices of
the peace, constables, surveyors of highways, and
overseers of the poor.
The high sheriff is an officer of very high anti-
quity; his name being derived from two Saxon
words, that signify the reeve, or officer of the shire
or county. The sheriffs were formerly elected by
the people of the county. But to avoid tumults,
that custom has been abolished by statute; and
they are now appointed-in the following manner :
184
The lord chancellor, the chancellor of the exche-
quer, the judges, and several of the privy council,
assemble together in the exchequer chamber, on
the morrow of St. Martin, yearly, and then and
there take an oath, that they will nominate no one
from any improper motive; this done, it is agreed
upon who shall be sheriff for the present year.
The earl of Thanet, however, is hereditary she-
riff of Westmoreland. Which office may descend
to, and be executed by, a female; for " Amir,
“ countess of Pembroke, had the office, and exer-
"s cised it in person ; and sat at the assizes at
Appleby, with the judges on the bench.”
The election of the shrievalty of Middlesex was
granted to the city of London for ever, in very
ancient times, upon condition of its paying £.300
a year to the king's exchequer. In consequence
of which grant, it always elects two sheriffs, though
these constitute but one officer.
The powers and duties of the high sheriff are
many and great. In his judicial capacity, he is to
hear and determine all causes of 40s. value and
under, in his county court. He is also to deter-
mine the election of knights of the shire, (who may,
however, appeal to the house of commons), of
coroners also, and to judge of the qualifications of
voters. As the keeper of the king's peace, he is
the first man in the county; and, during his office,
superior in rank to any nobleman. The high she-
riff may commit all persons to prison who disturb
the peace of the county, and bind any person in a
1
t
1
1
!
185
recognisance to keep it. He is bound to pursue
all traitors, murderers, and felons, and commit
them to jail for safe custody; and to defend the
county against any of the king's enemies, when
they come into the land. For which purposes,
he may call to his assistance the posse comitatus,
or power of the county, by commanding by his
summons every person above fifteen years old,
except peers, to attend him, on pain of fine and
imprisonment for disobedience.
In his ministerial character, he is bound to ex-
ecute all process issuing from the king's court of
justice. In civil cases he is to serve the writ,
to arrest, and take bail; and when the cause
comes to trial, he is to summon the jury; when it
is determined, he must see the judgment executed.
In criminal matters also he does the same, and
has the custody of the delinquent, and must ex-
ecute the sentence of the court, even to death
itself. He is the king's bailiff to levy all fines and
forfeitures within the county. He has, likewise,
officers under him; such as the under sheriff,
bailiff, and gaolers; who must neither buy, sell,
nór farm their offices, on forfeiture of £500.
The under sheriff' usually performs all the duties
of the office of sheriff, except in a few cases, where
the personal presence of the high sheriff is neces-
sary; but he cannot lawfully practice as an attor-
ney during his office, which continyes, like the
high sheriff's, but one year,
N
186
The bailiffs, are sheriff's officers appointed in
every hundred, to collect fines, and execute writs,
&c. within their districts. A bound-bailiff is a
special bailiff appointed by the sheriff on account
of his adroitness in executing writs, who is usually
bound in an obligation for the due discharge of his
duty, and is therefore termed a bound-bailiff, or as
the common people call him, a bum-bailiff.
Gaolers, are servants of the sheriff, who must
be answerable for their conduct. Their duty is to
keep safely all such persons as are committed to
their custody by lawful warrant; and if they suffer
a prisoner to escape, the sheriff must answer for it
to the king in criminal matters; and to the party
injured in civil cases.
At the assizes, the law allows the sheriff suitable
attendants. He may not have more than forty
men in livery; yet, for the sake of decorum and
safety, not fewer than twenty in England, and
twelve in Wales, upon forfeiture of £200.
The office of coroner is also very ancient. The
coroner is so called, because he has principally to
do with pleas of the crown. The lord chief justice
of the king's bench is the principal coroner in the
kingdom; and may, if he please, exercise the juris-
diction of that office in any part of it.
In every county there are usually four coroners,
and sometimes six.
The coroner is chosen by the freeholders of the
county; a writ at common law being issued to the
sheriff, to make election of a proper person.
He
187
is chosen for life ; but may be removed by the
king's writ, for a cause to be therein specified ;
such as living at an inconvenient distance, extor-
tion, corruption, neglect, or misbehaviour.
The duty of a coroner is to enquire, when any
one dies by violence, suddenly, or in prison, into
the manner of his death; and this must be on view
of the body; for if the body be not found, no inquest
can be held. Every inquest must be held at the
very place where the death happened ; and the
inquiry is to be made by a jury, from four, five, or
six of the adjoining towns, over whom the coroner
is to preside.
If any one be found guilty of murder or man-
slaughter, by his inquest, he is to commit the of-
fender for further trial ; and also to enquire con-
cerning his goods and chattels, which are thereby
forfeited. He is likewise to ascertain whether any
deodand falls to the king or lord of the manor by the
death of the deceased; and must certify the whole
proceedings to the court of king's bench, or to
the next assizes.
In cases where the high sheriff may be suspected
of partiality, arising from his interest in the suit,
or from his being a kin to the plaintiff or defendant,
exception may be taken to him; and the process
must then be awarded to the coroper, in his stead,
for execution of the king's writs.
The next denomination of subordinate magis-
trates to be mentioned, are justices of the peace;
N 2
188
A
the principal of whom is the custos rotulorum, or
keeper of the records of the county. The lord
chancellor, the lord treasurer, the justices of the
court of king's bench, are likewise by their office;
and the master of the rolls, by prescription, conser,
vators of the peace throughout the kingdom. The
other judges being so only in their own courts.
But the sheriff and coroner also are keepers of the
peace in their own county; and constables and
tithing-men within their own jurisdiction, may ap-
prehend and commit the disturbers of the peace,
till they find sureties for keeping it.
Conservators of public liberties were chosen in
England froin the barons, to circumscribe the king's
power, in 1215. But the first institution of justices
of the peace, was not till about the year 1344.
The privilege of electing their magistrates was
taken from the people by statute 1 Edward III.
ch. 16. which enacts, “ that for the better main-
“ taining and keeping the peace in every county,
good men and lawful should be assigned to keep
“ the peace.” But the appellation of justices was
first given to the maintainers of public order, by
statute '34 Edward Ill. ch. 1. which empowers
tliem to try felonies.
The justices are appointed by the king's special
commission, under the great seal. This appoints
them jointly and severally to keep the peace, and
any two or more of them to enquire of and deter-
mine felonies and other misdemeanors. In this
commission, some particular justices, 'or one of
ܘܘ
1
189
.
them, are directed to be always included, without
whose presence, no business is to be done: the
words of the commission running thus, “ Quorum
aliquem vestrum, A. B. C. D. &c. unum esse vo-
" lumus ;" i. e. “ of whom we will that A. B. &c.
« be one of you ;" whence the persons so named
are usually termed justices of the quorum. But
although a justice be put in the commission, he can-
not act until he sue out a writ of " dedimus potes-
~ tatem” from the clerk of the crown, empowering
certain persons to administer the usual oaths to
him; which done, he is at liberty to act in the
capacity of a magistrate.
The 18 Geo II. ch. 20. is the last statute which
prescribes the qualifications of justices of the
peace. By which every justice is required to have
£.100 per annum in estate, clear of all deductions;
and if he act without such qualification, he shall
forfeit £.100. Of this the justice must make
oath. This clear estate of £.100. may consist
either in freehold or copyhold, an estate of inheri-
tance or for life, or even in a term of twenty-one
years. But this does not extend to corporation
justices, eldest sons of peers, heads of colleges, or
to the mayors of Oxford and Cambridge; all of
whom may act without any qualification by estate.
No practising attorney, solicitor, or proctor, is
capable of acting as a justice of the peace,
The office of county justices continues during
the pleasure of the king; and is determinable,
first, by the demise of the crown, unless the com-
/
$
190
mission be renewed by the successor within six-
months after. Secondly, by express writ under
the great seal. Thirdly, by writ of supersedeas,
which suspends the power of all justices, but does
not destroy it. And Fourthly, by a new commis-
sion, which virtually, though silently, discharges
all former justices not named therein.
No sessions can be held without the presence of .
two justices. In the execution of their office, they
may incur penalties for mal-practices. But the
courts of law usually, and very properly, shew
them great indulgence and lenity; presuming,
that any mistakes committed by them arise rather
from a defect of knowledge of the law, than
from wilful negligence, or corrupt motives. Yet
a verdict against them for wilful injury, entitles the
prosecutors to double costs. Magistrates are enti-
tled to a month's notice of any charge brought
against them, in order that they may have tinie to
ascertain whether they have committed an error,
and make a voluntary reparation. If, however,
they suffer the matter to go to trial, they must áp-
pear at the end of the month in the court of king's
bench, when a declaration of the alledged offence
is read to them, and four days granted them to
plead.
Constables are of two kinds ; (viz.) high consta-
bles, and petty constables.
There was formerly the office of lord high con-
stable, first created by William the Conqueror,
which was hereditary till the year 1$21, since
191
which time it has been discontinued, except at co-
ronations; but from his office that of the constables
now in use, is clearly drawn. .
High constables were first instituted by the sta-
tute of Winchester, 13 Edward I. ch. 6. and are
appointed at the court-leet of the hundred, or by
the justices at the quarter sessions; and are
removeable by the same authority.
Petty constables are inferior officers, in every
town and parish, subordinate to the high constable
of the hundred, and first appointed about the reign
of Edward III. They are made either by the jury
at the court-leet; or if no court-leet be held, they
are nominated by two justices of the peace.
.
With respect to the duties of constables: they
are in general to keep the peace in their several
districts; and for this purpose have power to ap-
prehend and imprison all offenders. But one of
the principal duties of the constables, is to keep
watch and ward, in order to apprehend all rogues,
vagabonds, and night-walkers, and make them
give an account of themselves. To assist them
in this duty, they may appoint watchmen at their
discretion, regulated by the custom of the place,
Besides these duties, there are many others at
tached to this office, by particular acts of parlia-
ment.
Surveyors of the highways exactly answer to the
curatores viarum of the Romans; excepting that the
office of the latter was of rather more dignity and
authority than of the former. These surveyors, with
.
&
1.
or:
:
192
us, were first appointed by the statute 2 and 3 P.
and M. ch. 8. which ordered, that they should be
chosen by the constables and churchwardens; but
now by statute 13 Geo. III. ch. 78. they are consti-
tuted by two neighbouring justices, and may have
salaries allotted to them for their trouble.
The duties attached to this office consist in put-
ting into execution the statutes for the repair of the
public roads, leading from one town to another.
The surveyors have power to remove all nuisances
out of the highways. They are to oblige every
person within the parish, between the ages of 15
and 65 to work on the roads, or find a labourer,
compound at certain rates established by the act
of 13 and 14 Geo. III. ch. 78.
The law requires every cart-way leading to a
market-town to be twenty feet wide at least, if the
fences will permit; and it may be encreased by the
order of two justices, to the breadth of thirty feet,
at the expense of the parish. The expenses which
surveyors incur in repairing the roads, erecting
finger-posts, making drains, &c. are to be reim-
bursed by a rate on the parish, to be allowed
at a special sessions,
In aid of the highway rates levied on the sepa-
rate parishes, certain gates, called turnpike gates,
are erected upon the high roads in all parts of the
kingdom, at which all carriages, horses, and
cattle, pay a certain toll. These are under the
control of commissioners, and are regulated by
yarious acts of parliament. The first turnpikes
!
193
were erected at Wadesmill, Caxton, and Stilto11,
in virtue of an act passed in 1662.
The last public officers to be mentioned are the
overseers of the poor ; who were first appointed in
every parish by statute 43 Elizabeth, ch. 2. Be-
fore that time, the impotent poor subsisted princi.
pally on the benevolence of their neighbours; and
before the reformation they resorted to the monas-
teries, where they obtained that relief which con-
firmed them in habits of indolence and beggary.
The poor in Ireland, to this day, have no relief
but from private charity. In Scotland, collections
are made at all the church doors every Sunday for
the poor ; probably in compliance with the apos-
tolic injunction; “Upon the first day of the week,
“ let every one of you lay by him in store, as God
“ hath prospered him.”
The overseers of the poor are appointed by two
neighbouring justices, who must nominate yearly
in Easter week, or within one month after, two
substantial householders for the office. A woman,
who is a substantial householder, may be appointed
overseer. Their principal duties consist in raising
money, by levying rates on the inhabitants, for
the maintenance of the poor that are old, sick,
blind, lame, or otherwise incapable of work; and
also in finding employment for those who are
able to labour.
The poor may gain a settlement in a parish by
birth; as in the case of bastards, who belong to
whatever parish they are born in ; but legitimate
194
children belong to the parish where their fathers
are settled. Marriage likewise gains a settlement;
for if a woman marry a man out of the boundaries
of her own parish, she belongs to that of her
husband. So by renting a tenement of the yearly
value of £.10, and residing forty days in the
parish, or by paying to the poor's rates; or by
executing, when legally appointed, any parochial
office for a whole year, if attended with forty days
residence, any person may gain a settlement.
This privilege is also acquired by being hired for
and serving a year in the same service; or by being
bound apprentice; for such servant or apprentice
belongs to the place of his last forty days residence.
So if any one reside forty days on his own estate,
however small the value, he gains a settlement in
the parish, unless he purchased the estate; and in
that case he must have paid, bona fide, the consi-
deration of £.30, to entitle him to a legal set-
tlement.
The settlement of an intruder may be prevented
by an order of two justices of the peace to remove
him, upon complaint being made by the overseers;
unless the person has a certificate from his own
parish officers, acknowledging him to be their
parishioner; in which case he cannot be removed
till he become actually chargeable. No one,
however, can be legally removed who is in the
way of making a lawful settlement, by hiring a
tenement of £.10, yearly rent, or living in an
annual service.
2
CHAP. XV.
OF THE PEOPLE.
1
1
1
The people in England are usually divided into
aliens and natural born subjects. By the former
are understood all persons who are born out of
the British dominions, and not of English parents;
and by the latter, are meant all those who are
born within the realm, and are under a natural
allegiance to the king of Great-Britain.
The term allegiance is taken from a latin word,
which signifies a ligament that binds the subject to
his sovereign, on account of that protection which
he receives from his government.
Hence the
people are called his Majesty's liege subjects.
The law distinguishes allegiance into two kinds:
the one is natural and perpetual ; and the other
local and temporary.
Natural and perpetual allegiance, is that which
a natural born subject owes to his prince from his
birth; and which no time nor place can cancel or
alter. For as the king protected him in his infan-
tile and helpless state, his allegiance is now due
to his sovereign as a debt of gratitude; indepen-
dently on that security of his life, person, and
property, which he continues to receive. An
.
196
Englishman is not released from allegiance to his
natural prince by a residence in a foreign country,
nor even by becoming the subject of a foreign
ruler. For he cannot serve two masters.; and his
native prince having a prior claim, it is unreason-
able that he should, by his own mere act, dissolve
that union between the king and him, which, in
fact, cannot be destroyed without a mutual con-
sent. It is a hazardous mistake, entertained by
many, that letters of naturalization or certificates
of citizenship, granted to British subjects by
foreign states, absolve them from that allegiance
which is unalterably due from them to the ruler of
their native country; for if under such circum-
stances they should be taken in arms against him,
they would certainly be liable to be treated as
rebels.
Allegiance is due not only to the regal office,
but also to the king's person. Hence arises that
affectionateloyalty which so eminently distinguishes
every true Briton. This national feeling, perhaps, ,
never rose so highly as in the present reign. Cer-
tainly no prince ever sat upon a throne who had
juster claims upon the affections of his people than
George III.
Natural born subjects are bound to their king
by an implied, original, and virtual allegiance,
before any express promise be made; nevertheless
the oath of allegiance may be tendered to every
person, whether natural born or alien, above the
age of twelve years. By the oath of allegiance,
:
197
the subject swears, “ that he will be faithful, and
“ bear true allegiance to the king.” But all per-
sons in office, must take the oath of abjuration
also; an oath which very clearly and explicitly
acknowledges the rights of his Majesty, and
renounces all adherence to the descendants of the
Pretender.
So likewise the oath of supremacy, which prin-
cipally disavows the Pope's usurped authority in
these kingdoms, must be administered to all persons
who take upon them any office under the crown.
Local or temporary allegiance, is that which is
due to the king from all aliens, so long as they
reside in his dominions; and which ceases as soon
as they depart out of it. Because, as the king no
longer affords then his protection, they no longer
owe him allegiance.
Aliens have by no means the same privileges in
England as natural born subjects. Nor is it rea-
sonable that they should. They cannot acquire
any real or permanent property; but, may trade
freely, hire a house to live in, and accumulate
personal property, which they may dispose of by
will.
The children of Englishmen, which are born
abroad, are considered as natural born subjects of
the king, to all intents and purposes ; unless their
fathers were banished out of the kingdom for high
treason, or were at the birth of such children, in
the service of a power at war with Great-Britain.
And the children of aliens, born in England, are
.
198
regarded as natural born subjects, and entitled to
all the same privileges.
A denizen is one who is an alien born, but made
an English subject by the king's letters patent, a
high and incommunicable branch of the royal
prerogative. But a denizen has not all the privi-
leges of a native; for although he may buy lands,
he cannot inherit any ; nor can his children who
were born before his denization. Neither can he
be a member of the privy council, or of parliament;
nor hold any office, civil or military; nor receive
any grant of lands from the crown.
Naturalization is the putting of an alien just in
the same state as if he had been a natural born
subject; except, only, that he is incapable, as
well as a denizen, of being a member of the council,
or parliament ; of holding offices, grants from the
crown, &c. &c. Naturalization can be performed
only by an act of parliament; and no bill, by
statute of 12 William III. ch. 2. can be introduced
into either house of parliament to naturalize any
person, without a clause in it, disabling the sub-
ject of it from holding offices, &c. &c. This act
was passed from a jealousy of king William's
partiality to foreigners.
Before such a bill can be brought in, it is requi-
site, also, that the person to be naturalized, have
received the sacrament of the Lord's Supper one
month before the bill be introduced; and that he
takes the oaths of allegiance and supremacy in the
presence of the parliament.
:
CHAP. XVI.
OF THE CLERGY.
Previously to taking a view of the law respecting
the clergy, it will be proper to give a brief state-
ment of the introduction of the christian ministry
into the world.
No sooner had Adam fallen from his original
state of righteousness and holiness, and by his
transgression subjected both himself and his poste-
rity to the merited punishment of divine wrath,
than God was pleased to declare that the seed of
the woman should bruise the serpent's head.
Hereby was given the first intimation of that
«s eternal life, which he who cannot lie promised
“ before the world began.” The plan of man's
redemption is stupendous, is mysterious. For
whether we contemplate its author, the dignity of
the
person who accomplished it, or ourselves as
the objects of its vast design; we are equally
astonished and constrained to exclaim, “O! the
depth of the riches both of the wisdom and the
knowledge of God! How unsearchable are his
judgments, and his ways past finding out!” It
pleased God to make known to man the scheme
of his redemption, by degrees, and in divers
:
200
manners. In the fulness of time, however, Christ
cane in the flesh, and made an offering of himself,
as the alone sacrifice for sin ; and by his meritorious
death, he finished the work of man's salvation.
Such was the introduction of christianity into the
world; the peculiar doctrines of which are com-
prehended in the emphatical term “gospel,” or,
“ glad tidings." This gospel has been, still is,
and will be to the end of time, manifested to the
world, by preaching which is committed to
“ faithful men, according to the commandment of
" God our Saviour,” They are, therefore, so to
be accounted of “as of the ministers of Christ,
*s and stewards of the mysteries of God.”
The ministers of Christ, in the established
church of England, are denominated, the clergy;
a term, however, that comprehends all persons
either in holy orders, or in ecclesiastical offices.
Clergymen in holy orders enjoy by law, certain
exemptions ; not only on account of their sacred
character, but also that they may not be hindered
in their spiritual duties, by being engaged in tem-
poral affairs. They cannot be compelled to serve
on juries, or discharge the duties of any civil
office. They are privileged during their attendance
on divine service, from arrests in civil suits. And
in cases of felony, a clergyman may have his
benefit of clergy for any number of clergyable
offences; which a layman, even a peer, can receive
only upon the first conviction.
201
1
But for the saine reasons that they are allowed
many privileges, the clergy are likewise laid under
several disabilities. It hạs been already stated
that they cannot sit in the house of commons;
neither are they permitted to engage in any manner
of trade, nor sell any merchandise, under for-
feiture of the treble value.
By the 75th canon, they are expressly prohibited
from “ resorting to any taverns or alehouses, other
" than for their honest necessities ;" and from
spending their time idly by day or by night, play-
ing at dice, cards, or tables, or any other unlawful
game; having always in mind, that they ought
to excel all others in purity of life, and should
“be examples to the people to live well and chris-
“ tianly.” And although the common law very
properly allows clergymen to take “ reasonable
recreations, in order to make them fitter for the
performance of their duty and office;" yet “by
the canon law they are prohibited to hunt.”
Hence, when archbishop Abbot, in 1621, had the
misfortune to kill the game-keeper in shooting at
a deer, with a cross-bow, at Bramshill park, in
Hampshire, the seat of lord Zouch, he was deemed
to be incapacitated from discharging the office of
primate any longer. But the judges and bishops
recommending it to the king, his Majesty granted
his grace a dispensation, by which he was restored
to his former functions.
By the 76th canon, “No man being admitted a
“ deacon or minister, shall from thenceforth volun-
66
202
tarily relinquish the same; nor afterwards use
“ himself in the course of his life, as a layman,
upon pain of excommunication.”
The church of England is episcopal, and always
has been from the first introduction of christianity
into the island.
That the episcopal ordination and government
prevailed even in the apostles' days, cannot be
doubted by any who give credit to the epistles of
St. Ignatius. That holy father died within ten
years after St. John the apostle, and was himself
bishop of Antioch. He speaks familiarly of the
three orders of bishops, priests, and deacons; and
it may hence be fairly inferred, that episcopacy
originated in the apostolical practice.*
« That
episcopacy was received universally in the
church, either in the apostles' time, or presently
“after, is so evident and unquestionable, that the
“ most learned adversaries, do themselves confess
“ it.”+ Nor was it ever called in question for 1500
years after the christian æra.
But whilst wise and good men disagree on this
point, it ought in candour to be acknowledged by
them all, that the new testament does not speak
so decidedly on the subject as to justify any party
in asserting that either this or that form of church
government is positively enjoined.
The different orders of the clergy of the church
of England essential to the constitution of episcopál
See bishop Lloyd's Historical Account of Church Government.
+ Chillingworth.
209
government, are those of bishops, priests, and
deacons. But besides these ministers, there are
various other officers of the church, which, although
not necessary to the existence of an episcopal
church, have been gradually introduced and deem-
ed expedient for the well-ordering and conducting
of ecclesiastical affairs. Such are, archbishops,
deans, prebendaries, minor canons, archdeacons,
church wardens, parish clerks, and the like.
When cities were at first converted to christi-
anity, the bishops were elected by the clergy and
people; but as the number of christians increased,
such tumults were raised at these popular elections,
that at one time no less than three hundred persons
were killed. The christian emperors and kings, to
prevent these disorders, took the authority of
appointing bishops into their own hands. This
plan created many disputations between them, and
the pope, and the clergy. At length, after many
alterations as to the mode of constituting the
bishops in England, it was finally settled, that they
should be elective by the dean and chapter, under
the king's nomination.
When a bishop dies, therefore, or is translated,
the dean and chapter certify the king thereof in
chancery, and pray leave of the king to make
election. Upon which the king grants his licence, ,
which is called, “ congè d'elire;" that is, leave to
choose. With this writ of “congè d'elire,” a
letter missive from the king is sent to the dean and
1
02
204
chapter, containing the name of the person whom
they are to elect; and if they delay the election for
twelve days, the king has a right by his letters
patent to nominate and appoint whom he pleases
to be the new bishop. It is not true, that a cler-
gyman when he is offered a bishoprick answers,
“nolo episcopari," I will not be made a bishop.
When the election is made, if it be of a bishop,
it must be signified to the archbishop of the pro-
vince by the king's letters patent; and if of an
archbishop, then to the other archbishop and two
bishops; or, to four bishops, requiring them to
confirm, invest, and consecrate the person so
elected, on pain of a premůnire on refusal.
The episcopacy of England consists of the two
archbishops of Canterbury and York, and twenty-
four bishops; who, upon confirmation, may sit in
parliament as lords thereof. There is likewise the
bishop of Sodor and Man, who has no seat in the
house of lords.
The archbishop is the chief of the rest of the
bishops, and of all the inferior clergy in his pro-
vince; and he exercises episcopal jurisdiction in
his own diocese, as well as archepiscopal in his
province. Upon receipt of the king's writ, he
summons the bishops and clergy in his province to
meet in convocation; and to him all appeals are
made from the bishops and consistory courts
within his jurisdiction.
The archbishop has the right to present to all
vacant livings in the disposal of his bishops, if.
205
1
they be not filled within six months from the
vacancy. And whenever a new bishop is conse-
crated, he makes over by deed to the archbishop,
his executors and assigns, the next presentation of
such dignity or benefice in the bishop's disposal
within that see, as the archbishop himself shall
choose ; which is called the archbishop's option.
This deed binds the bishop, but not his successors.
The archbishop of Canterbury enjoys some
privileges above the archbishop of York. For to
him belongs the privilege of crowning the kings
and queens of England. He hath also, by statute
25 Henry VIII. ch. 21, the power of granting
dispensations, in many cases, not contrary to the
holy scriptures and laws of God. He, therefore,
grants special licences, to marry at any time or
place, to hold two livings, and the like; and may
also confer degrees independently on the two
universities.
The powers and authority of the bishops, are
to ordain the priests and deacons to their sacred
offices, inspect the manners of the people and
clergy, and punish them by ecclesiastical censures,
in order to reformation. They administer the
right of confirmation, and induct to all ecclesias-
tical benefices in their dioceses; every part of
which they may visit at their pleasure. They
have also their several courts, and are assisted in
matters of ecclesiastical law, by their chancellors
and other officers.
!
206
An ecclesiastical benefice may become vacant
by death ; by deprivation for any very gross and
notorious crime; and also by resignation. A
resignation must be made to some superior; con-
sequently a private clergyman must resign to the
bishop of his diocese; a bishop, to the archbishop;
who can resign to no one but the king himself.
The dean and chapter is a council appointed to
assist the bishops with their advice, both in eccle-
siastical and also in other matters relative to
the see.
The origin of the dean and chapter seems to
have been an imitation of the division of the civil
government into hundreds, tithings, &c. For
when the rest of the clergy were first settled in the
several parishes in each diocese, the dean and
prebendaries were reserved to perform religious
worship at the cathedral; and the chief of them
being appointed to preside over the rest (probably
ten in number), was called decanus, or dean.
The appointment of the deans varies: some are
elected by the chapter, upon the king's “congè
* d'elire” and letter missive of nomination, in like
manner as the bishops; and others obtain the
office by the king's letters patent.
A chapter of a cathedral church consists of
persons ecclesiastical, canons, and prebendaries,
whereof the dean is chief; but with the others he
is subordinate to the bishop. The canons and
prebendaries are sometimes appointed by the king,
207
sometimes by the bishop, and sometimes elected
by each other.
Deaneries and prebends may become void by
death, by deprivation, or by resignation. Also,
if a dean or prebendary be consecrated a bishop,
all his former preferments are vacated; and the
king may present to them in virtue of his pre-
rogative. -
The archdeacon is an ecclesiastical officer ap-
pointed by the bishop. He has a kind of subor-
dinate episcopal authority; and therefore visits the
clergy, and has his courts for the punishment of
offenders by ecclesiastical censures.
Rural deans, now grown almost into disuse, are
very ancient officers of the church. They were
endued with a degree of coercive power; and
were probably, originally, the deputies of the
bishops, to inspect the lives and conduct of the
clergy of the several parishes throughout the
diocese,
But the most numerous, as well as most labo-
rious order of the clergy, are the parsons, vicars,
and curates.
A parson is one who has full possession of all
the rights of a parish church. He has his name,
because in his own person he represents the church,
which is an invisible body. He is a body corpo-
rate in himself, that he may protect the rights of
the church, which he personates, by a perpetual
succession; and is sometimes called the rector, or
governor of the church. During his life, he has
208
the freehold of the parsonage house, glebe, tithes,
&c. &c. and for the most part, he has the right to
all the ecclesiastical dues in the parish. From
some cause or other, the term parson has become
à name of scorn and derision; but we see, that in
point of fact, it is an appellation of honourable
distinction. There is too much reason to fear
that the inconsistent lives and conversation of
some of the clergy, have in all ages occasioned
much of that contempt of their sacred order which
generally prevails amongst inconsiderate and un-
godly men. Yet nothing can be more unreason-
able, than to charge any body of men with the
failings of any of its individual members. In fact,
a man cannot give a more indisputable proof of
his being destitute of all true religion himself,
than by being fond of displaying his profane wit
at the expense of its ministers. He who wantonly
defames the servant, can have little regard for the
master,
A vicar is one who has a spiritual promotion or
living under the parson; and is so denominated as
officiating vice ejus, in his stead. Such promotion
is called a vicarage. When the parson is a mere
layman, and cannot supply the church but by a
spiritual person, he is called an impropriator, and
the living, an impropriation.
A curate signifies, generally, one who is not
instituted to the care of souls; but exercises the
spiritual office in a parish under the rector or vicar.
209
The appointment of a curate must be by the
incumbent's nomination of him to the bishop,
whose licence is necessary before he can be law-
fully admitted to officiate in the church to which.
he is appointed. He is to be paid such salary as
the bishop thinks reasonable.
A licensed curate cannot be removed by his
rector or vicar, in order to put another curate in
his place. But Doctors Swabey and Adams, of
Doctors Commons, have lately given it as their
opinion, “that every licence terminates on the
“ death of the incumbent who gave the nomination;
" and that the succeeding rector may nominate any
“other clergyman to the cure, and claim a fresh
“ licence from the bishop of the diocese.
The requisites necessary to become a parson or
vicar, are four; namely, holy orders, presentation,
institution, and induction.
No man may presume to execute any of the
offices of bishop, priest, or deacon, in the estab-
lished church, “except he be first called, tried,
examined, and known to have such qualities as
are requisite for the same; and also by public
prayer, with imposition of hands, be approved
" and admitted thereunto by lawful authority.”
For the particulars of the method of conferring
holy orders upon deacons and priests, and also of
consecrating bishops and archbishops, the reader
is referred to the order of this very solemn service,
printed in the larger sorts of the liturgy of the
church of England.
66
66
210
A person cannot be ordained a deacon under the
age of twenty-three years; nor a priest, till he is
twenty-four years old ; under which age he is
incapable of being admitted to any benefice.
The giving of money, directly or indirectly, to
obtain orders and licence to preach is unlawful.
The person giving such orders forfeits £40, and
he who receives them £10, and is rendered inca-
pable of any ecclesiastical preferment for seven
years afterwards. From the analogy which such
conduct bears to the crime of Simon Magus, who
offered the apostles money to give him the power
of conferring the Holy Ghost on whomsoever he
should lay his hands, it is called simony. So the
giving or taking of money for a presentation or
collation is also simony, and is punishable by sta-
tute 31 Eliz. ch. 6.
When a living is vacant, the patron offers whom
he pleases in holy orders to the bishop of the dio-
cese, to be instituted to it. But the bishop may
refuse such a one on many accounts. As, if the
patron be excommunicate and remain in contempt
forty days; if the clerk be an alien, under age, an
outlaw, or the like; or if he be defective in his
faith or morals, or destitute of sufficient learning
The bishop has the right to examine and judge of
the qualifications of all candidates for holy orders,
and is not accountable to any temporal court for
the measures he takes in his examination.
Upon refusal of the clerk, however, the patron
may bring his action at law; and then the bishop
211
must assign the cause of his refusal, which if it be
temporal, the judges must determine its validity :
but if the fact be denied, a jury must determine
it. If the cause be spiritual, as for heresy, and
the fact denied, a jury is to decide; but if admit-
ted, the court assisted by learned divines, shall
determine its sufficiency. If the bishop should
refuse the clerk on account of deficiency of learn-
ing, the court may refer him to the archbishop for
re-examination, and his decision shall be final.
When a person applies for institution, he must
shew the bishop his letters of orders, and bring
testimonials of his good life and conversation,
should the bishop require it. Institution is a kind
of investiture of the spiritual part of a benefice, by
which the cure of the souls of the parish is com-
mitted to the charge of the clergyman.
Collation to a benefice, is when the bishop him-
self is the patron, and confers the living; then the
presentation and institution are one and the same
act, and called a collation to a benefice.
Induction is the investiture of the temporal
part of the benefice, as institution is of the spiri-
tual; and is performed by a mandate from the
bishop to the archdeacon, who usually issues out
a precept to other clergymen to perform it for him.
It is done by giving the clergyman corporal pos-
session of the church, as by holding the ring of the
door, tolling a'bell, or the like; and is a form
required by law, to give the parishioners sufficient
notice and certainty of their new minister to whom
they are to pay their tithes.
1
212
When à clergyman is instituted to a rectory or
vicarage, or licensed to a perpetual curacy, he
takes the following oath, in the presence of the
bishop or his commissary; “I A. B. do swear
" that I will perform true and canonical obedience
is to the bishop of and his successors, in all
things lawful and honest. So help me. God.”
Not that this oath implies obedience to the canons,
as some erroneously suppose, but only to the law-
ful commands of the diocesan. This oath of ca-
nonical obedience taken by beneficed clergymen,
originated at a much earlier date than the canons
of 1603.; and was certainly intended to resemble
that, which, under the feudal system, the tenant,
took of fidelity and obedience to his lord. It is,
in short, of a similar nature to the oath of alle-
giance to the sovereign. But as the laity in taking
this oath to the king do not swear to obey the sta-
tute law; so the clergy by swearing cànonical
obedience, do not lay themselves under an oath
to obey the canons.. Stipendiary curates and lec-
turers are not required to take the oath of canoni-
cal obedience; which is a further proof that it is
restricted to that obedience which an incumbent :
is to render to the bishop and his successors.
A bishop, likewise, on his consecration takes an
oath of due reverence and obedience to the archbishop
of his province.*
* For a satisfactory elucidation of this subject, see a pam-
phlet on " the Nature of the Oath of canonical obedience, by
213
An incumbent may vacate his benefice either by
death, or by cession in taking another living; for he
cannot hold two livings, without a dispensation.
Consecration to a bishoprick, likewise, vacates
the parsonage or vicarage; but by the favour of
the crown, the new bishop may hold a living in
“ commendam:" that is, the living may be commit-
ted to his care till a proper pastor can be provided
for it.
A benefice may also be vacated by resignation,
deprivation, or in pursuance of some penal statutes
against simony; for maintaining any doctrines
derogatory to the king's supremacy, or to the 39
articles, liturgy and homilies; by neglecting after
institution to read the liturgy and articles in the
church, or make the declaration against popery, &c.
There are about 10,000 parishes in England;
and it is said that the average annual income of
the parochial clergy does not much exceed £ 100.*
A sum far too small for the exigencies of a family.
And when it is considered that even this amount
is reduced in many cases by the unequal distribu-
tion of the ecclesiastical revenue, the situation of
the far greater part of the clergy will appear truly
deplorable to every pious and feeling mind. How
is it then that the payment of the clergy is thought
by many such an intolerable grievance? It will
1
* Mr. VOWLES, one of the proctors of the consistorial court of
Bristol.”—Rivingtons.
See an Essay on the Revenues of the Church of England.
1
214
perhaps be answered, “ the tithes are a fruitful
“source of contention, and expensive litigations."
But it may reasonably be doubted whether any
other mode of supporting the clergy that the legis-
lature might adopt instead of tithes, would be
niore cheerfully complied with by the majority of
the people. For men do not willingly pay for that
of which they imagine they have no need. The
truth, however, is, that where the clergyman and
his parishioners are under the due influence of that
religion which they profess, there will be no dis-
pute about tithes. For on the one hand, he will
be anxious at all times to convince his flock, that
he seeks not theirs but them ;* and on the other
hand, the people will by their liberality make it
manifest, that they think it perfectly reasonable
and just, that they who sow unto them spiritual
things, should reap of their carnal things.
The annual stipend of the curates, probably
does not exceed on the average £50; a sum
barely sufficient to supply even a single man with
the necessaries of life. The legislature has indeed
of late somewhat ameliorated the condition of the
poorer curates ; but this useful body of men cer-
tainly requires some further national provision.
They who preach the gospel ought at least to
exist by it.
Besides these several spiritual persons, there
are other subordinate officers of the church.
2.Cor. ch. xii. ver. .14.-t i Cor. ch. 9. ver. 11.
215
.
Churchwardens, as the representatives of the
parish, are the guardians or keepers of the church.
They are appointed yearly; sometimes by the
parish, sometimes by the minister, and sometimes
by both conjointly, according to the custom of
the place.
Their office is to repair the church, and make
rates for the defraying of the expense; they are
also joined with the overseers, in the care and
maintenance of the poor. They are authorised to
keep the people orderly at church; and are pos-
sessed of many parochial powers, invested in them
by various acts of parliament. It is the duty also
of the churchwardens, to make presentments of
all disorderly persons, &c. &c. at the bishop's or
archdeacon's visitation.
Parish clerks and sextons are likewise regarded
by the common law, as persons who have freeholds
in their offices. They are generally appointed by
the minister ; but sometimes by the parish, where
the establishment of the custom gives the inhabi-
tants a civil right to the appointment.
By the 91st canon, the qualifications for a
parish clerk, are, that he be “twenty years of
age at least; of honest conversation ; sufficient
“ for his reading, writing, and also for his compe-
“ tent skill in singing, if it may be.”
As psalm-singing constitutes so delightful and
profitable a part of public worship, attention
should always be paid to this part of his qualifica-
tion in the appointment of a parish clerk.
ܕ
216
The rule laid down for church music, in
England, almost a thousand years ago, was, that
a plain and devout melody should be observed.
And the rule prescribed by queen Elizabeth in
her injunctions to the clergy, was, that "for the
comforting of such as delight in music, it may
“ be permitted, that in the beginning or in the end
“of common prayer, either at morning or evening,
“ there may be sung an liymn, or such like song,
“ to the praise of Almighty God, in the best
“ melody and music that may be conveniently
devised, having respect that the sentence of the
"hymn or song may be understood and perceived."
i
CHAP. XVII.
OF DISSENTER S.
The stated reading of such large portions of the
sacred scriptures in every parish throughout the
kingdom, is alone such a public blessing, as, in
the judgment of many, more than balances all the
imperfection, real or supposed, which attaches to
the national church. Another obvious advantage
arising from the establishment of the church of
England, is the perpetuity of her creed and wor-
ship; notwithstanding the objections that have
from time to time been brought against them,
either from without or from within. The articles
217
remain the same compendium of scriptural truth;
the homilies, the same deposit of “ godly and
“ wholesome doctrine;" and the liturgy, the same
sublime and spiritual service as they ever were.
They are all, too, as “necessary for these times,"
as they were in former; and will be in all future
generations; and therefore it is hoped that they
will remain iminoveably fixed, to enlighten and
comfort the people of this favoured land to the end
of time.
It is not, however, to be expected in a country
whose inhabitants enjoy the right of private judg-
ment, that an unanimity of religious opinion should
exist. Being no longer mentally enslaved by a
superstitious and bigotted priesthood, we are per-
mitted, as well as enjoined to “ search the scrip-
“ tures” for ourselves. Hence, however, much it is
to be lamented, there will necessarily be a diversity
of sentiment with regard to matters both of faith
and discipline.
It would be quite foreign from the design of this
work to give even a brief historical sketch of the
dissenters, since it proposes to state only the law
as it relates to that respectable class of his Majes-
ty's subjects.
The grounds of dissent are various. But it
But it may
be observed, that the puritaņs (the name by which
the first dissenters were distinguished) separated
chiefly on account of their objections to the govern-
ment' and ceremonies of the church; whilst they
218
firmly believed in her doctrinal articles, which, it
is presumed, are consonant with the faith of far the
greater part of the non-conformists of the present
day.
From the first period of the reformation, the pro-
testants manifested that they entertained different
views respecting many things; which were perhaps
madet oo much of at that time by all parties. Al-
though these are now very generally considered to
be of inferior moment, compared with the essen-
tials of religion; yet good men are still not suffi-
ciently agreed about them to permit them all to
hold communion together in the established church.
The law, therefore, considers all persons as dis-
senters who, from any cause whatever, do not con-
form to the church of England in the established
mode of reļigious worship, agreeably to the statutes
1 Eliz. ch. 1. and 13 and 14 Car. II. ch. 4. called
acts of uniformity. By these acts, all dissenters
are subjected to certain penalties; from which,
however, they were happily relieved by statute
1 W. and M. ch 18. called the toleration act, which
was confirmed by 10 Anne, ch. 2.
These two acts exempt his Majesty's protestant
subjects dissenting from the church of England,
from the penalties of the above and similar sta-
tutes, and from prosecution in the ecclesiastical
courts, on account of their non-conformity. The
benefits of these acts extend only to such protes-
tant dissenters as shall qualify themselves as is
therein prescribed.
1
219
The acts of uniformity, then, do not apply to such
dissenters as shall take the oaths of allegiance and
supremacy, and make and subscribe the declara-
tion against popery, made 30 Car. II. ch. 1. against
transubstantiation, invocation of saints, and the
sacrifice of the mass.
With respect to dissenting places of worship;
no assembly shall be allowed till the place of meet-
ing be certified to the bishop of the diocese, or
archdeacon, or justices at the quarter sessions,
and be registered, and a certificate thereof given.
The meeting-house must be open during public
worship, the doors being neither barred, bolted,
nor locked.
Dissenting teachers, to be qualified as such,
were required by the above acts of W. and M. affd
of Anne, to declare their approbation of such parts
of the 39 articles as do not relate to the government,
ceremonies, and power of the established church,
or refer to infant baptism; but by the 19th Geo. III.
ch. 44. they are intitled to all the benefits of the
toleration acts, if they take the oaths and subscribe
the declaration against popery, agreeably to the
provisions of those acts, and likewise subscribe the
following declaration, “I A. B. do solemnly de-
“ clare in the presence of Almighty God that I am
a christian, and a protestant, and as such, that I
“ believe that the scriptures of the Old and New
Testament, as commonly received amongst
protestant churches, do contain the revealed will
3
P 2
220
* of God; and that I do receive the same as the
“ rule of my doctrine and practice."
The same act provides, that no protestant dis-
senter swearing and subscribing as above, shall be
prosecuted for teaching and instructing youth as a
tutor or schoolmaster.
Quakers, to have the benefit of the act of tolera-
tion, shall make and subscribe the aforesaid decla-
ration, and a declaration of fidelity to the king and
of his supreinacy; and shall subscribe a profession
of their christian belief, in a forni of words pre-
scribed by the act.
Dissenting ministers qualified in one county,
may officiate in any other, upon producing, if re-
quired, a certificate of being so qualified, and
swearing and subscribing as above.
If any person misuse such qualified teacher, or
disturb a dissenting congregation, the offender
shall find two sureties to be bound by recognisance
in £ 50 each; and in default thereof, be committed
to prison till next quarter sessions, and upon con-
viction forfeit £20.
Neither the bishops, clerks of the peace, or jus-
tices of the quarter sessions can decline at their
pleasure to license a meeting-house, or to qualify
a dissenting minister; for the act requires the pro-
per officers to register such places of meeting, &c.
&c. upon its being certified. And if through igno-
rance or perverseness, any of them should refuse ;
a mandamus, upon proper application, will always
be granted to compel them to do their duty.
221
It was for many years believed that the toleration
act only suspended the penalties, but did not take
away the crime of non-conformity. It was sup-
posed that a dissenter might be fined for refusing
to serve a civil office; and at the same time in-
cur all the penalties of the test and corporation
acts, if he took upon him any such office without
taking the sacrament according to the form and
custom of the church of England. This was cer-
tainly a very great hardship, and altogether incon-
sistent with the liberal and equitable spirit of the
English constitution. At length, about the year
1762, Allen Evans, Esquire, being chosen sheriff
of London, refused to execute the office, upon the
grounds of his being a dissenter, and of his not
being able, conscientiously, to take the sacrament
at church. For this he was prosecuted by the
city of London, who brought the cause before the
house of lords by appeal from the commissioners
delegates, who had given judgment for the defen-
dant. The house ordered this question to be pro-
posed for the opinion of the judges : “ How far
“ the defendant might; in the present case, be
" allowed to plead his disability in bar of action.
All the judges, excepting Mr. Baron Perrot, were
of opinion, " That the corporation act expressly
“ rendered the dissenters ineligible and incapable
“ of serving; and that the toleration act amounted
“ to much more than a mere exemption from the
"penalties of certain laws, by freeing the dissenters
* from all obligation to take the sacrament at
222
* church ; abolishing the crime as well as pe-
“ nalties of non-conformity, and allowing and pro-
“tecting the dissenting worship ; and therefore,
“ that the defendant may plead thiş disability in
“ bar of the present action.” The whole of the
arguments of the judges were summed up by the
learned lord Mansfield ; and upon this ground
the house of lords affirmed nem. con. the judgment
of the commissioners delegates. It was the opinion
of lord Mansfield, that the dissenting worship was
not merely connived at, but “ established.” And
doctor Furneaux informs us, that Mr. speaker
Onslow likewise observed, in a conversation with
which he honoured him, “ that as far as the autho-
rity of the law could go in point of protection,
"the dissenters were as truly established as the
“ church of England; and that an established
church, as distinguished from their places of
worship, was, properly speaking, only an endowed
66 church.'
Ever since the toleration act passed, it has been
the invariable practice of our kings in their speeches
to their parliaments upon their accession to the
throne; after declaring their affection to the
church of England and resolution to support it,
to add, that they will maintain the toleration
inviolable.
By two statutes of 13 Car. II. ch. 1. called the
corporation and test acts, no person can be legally
elected to any office relating to the government of
any city or corporation, unless within a twelve-
!
223
month before, he has received the sacrament of the
Lord's Supper according to the rites of the church
of England; and unless at the same time that he
takes the oath of office, he also take the oath of
allegiance and supremacy. And by the test act,
all officers, civil and military, must take the oaths,
&c. &c. within six months after their admission;
and also within three months, take the sacrament
at church, upon forfeiture of £500, and disability
to hold the said office.
But, as through inadvertence, some may neglect
to comply with the law, an act is passed before the
end of every session of parliament, to indemnify
such persons, provided they qualify themselves
within a time specified in the act; and provided
also, judgment has not been given against them for
their former omission. A protestant dissenter
may sit in either house of parliament, being duly
qualified, and taking the usual oaths.
The Roman catholics do not enjoy altogether the
same privileges as other dissenters; since they
cannot sit in either house of parliament. But all
the severe and cruel restrictions and penalties to
which they were formerly exposed, are now re-
moved by statute 31 Geo. III. ch. 32. which may
be called the toleration act of the catholics. This
act places them and their worship under the same
protection as the protestant dissenters; whilst it
leaves them equally under the disabilities of the
corporation and test acts.
224
The legislature in its wisdom having then seen
fit not only to abolish the persecution, but to enact
the protection of religious worship, under every
form ; it is the bounden duty of all private chris-
tians, to exercise mutual charity and forbearance
one towards another. “Ephraim should no longer
envy Judah, and Judah should no more vex
“ Ephraim."
This christian conduct is enjoined not only in
the scriptures, but comes likewise recommended
to us by the highest earthly authority. At the
commencement of the last parliament, the convo-
cation of the province of Canterbury assured his
Majesty, “ that they would recommend, in matters
s of conscience, mutual forbearance and forgive-
“ ness.” To which his Majesty graciously answer-
ed, “ You may rely on my unshaken determination
" to give every encouragement and support to your
“ exertions in maintaining that mutual forbearance
“and forgiveness which so peculiarly belong to
“ the true spirit and character of the reformed
church, and which are so eminently calculated
" to promote the great and important objects of
our holy religion,
CHAP. XVIII.
OF THE CÍVIL STATE.
+
The laity are usually divided into three distinct
states ; namely, the civil, the military, and the
maritime.
The civil state comprehends all orders of men
from the highest peer to the lowest peasant, which
are not included among the clergy, or amongst
either the army or the navy. It may also take in
individuals of the three other orders, since a
nobleman, a knight, a gentleman, or a peasant
may become either a divine, a soldier, or a seaman.
The civil state is divided into the nobility and
commonalty:
The nobility are distinguished by the different
titles of dukes, marquisses, earls, viscounts, and
barons. At the time of the conquest, the temporal
nobility consisted only of earls and barons. Long
after that period, wealth was considered the only
nobility, as there was then but little personal pro-
perty; and a right to a seat in parliament de
pended entirely upon the tenure of landed estate.
Agreeably to the general principle in the feudal
system, every tenant of land had a right and was
pbliged to attend the court of his lord. Hence,
+
226
every tenant in capite, i. e. the tenant of the king,
was bound to attend the king's court or parliament,
the great court baron of the nation.
With respect to the origin of peerage: according
to Selden, from the conqnest to the latter end of the
reign of king John, all who held any quantity of
land of the king, had, without exception, a right
to be summoned to parliament. In the last year of
that prince, however, a very important distinction
was introduced ; viz. the division of these tenants
into greater and lesser barons. About this period,
tenure began to be disregarded, and persons who
held no lands of the king were summoned to par-
liament by writ. This custom continued till-the
11th of Richard II, when the practice of creating
peers by letters patent first commenced. In that
year, John de Beauchamp, of Holt, in Worcester-
shire, steward of the household to Richard II.
was created by patent, lord Beauchamp, baron of
Kidderminster, in tail male; and since that time
peerages have been created both by writ and
patent, without any regard to tenure and estate.
The barony of Kidderminster, which had been
several times extinct,' was revived in 1711, by
queen Anne, who created Thomas Toley, esq.
baron Foley of Kidderminster. It again became
extinct in 1765; and in 1776 was conferred by his.
present Majesty upon Thomas Foley, esq. the
grandfather of the noble lord who now enjoys this
very ancient and distinguished peerage.
227
With respect to the origin of the title of a duke:
the latin name of duke, which was very frequent
among the Saxons, signified nothing more than the
commanders of their armies. But after the Nor-
man conquest, our kings being dukes of Nor-
mandy, would not confer the honour of the title
upon their subjects, until the reign of Edward III.
That monarch, about a year before he assumed the
title of king of France, introduced this order of
nobility in 1337, by creating his son, Edward the
Black Prince, duke of Cornwall, to inflame the
military ardour and ambition of his earls and
barons* Afterwards others were raised to the
same rank, but the title became quite extinct in
the reign of Elizabeth, and was revived about the
year 1622 by James I. who created George Villiers
duke of Buckingham.
The title of a marquis is taken from his office to
guard the frontiers and limits of the kingdom;
which were called the marches of Wales and
Scotland, when they were enemy's countries.
The term is derived from the teutonic word marche,
a
limit. This title was first given as a mere ensign
of honour, in the reign of Richard II. who
created Robert Vere, earl of Oxford, marquis of
Dublin; but the authority of lords niarches, or
marquisses, was not abolished till the 27th of
Henry VIII.
An earl is a title of nobility so ancient, that its
origin cannot be traced out. Among the Saxons,
* See Henry's History of England.
i
228
the earls were called ealdormen, or elder men; and
also schiremen, because each of them had the
government of a separate district or shire. After
the irruption of the danes they were called earles ;
and after the conquest, counts. But although they
did not long retain that title, yet to this day the
shires are called counties, from thence; and the
wives of earls, countesses.
Henry IV. being either by his wife, his mother,
or his sisters, actually related or allied to every
earl in the kingdom, had the address to acknow-
ledge that relation in all his letters and other
public acts; and hence the usage of our kings in
all writs, commissions, &c. wherein they mention
a peer of the rank of an earl, of styling him
trusty and well-beloved cousin."
The title of viscount was not used till the 18th
year of Henry VI. who created John Beaumont a
peer, by the name of viscount Beaumont.
But the most ancient, general, and universal
title of nobility, though the lowest in degree, is
that of a baron. The most probable opinion re-
specting the origin of this title, is, that the ancient
barons were the same as our lords of manors ; to
which opinion, the name of court baron gives
some sanction. It has been already remarked,
that all lords of manors, or barons, who held of
the king in capite, had seats in parliament. In
this king's reign, the number of barons was so
great and troublesome, thật John found it expe-
dient to divide them; and to summon only the
229
1
greater barons in person. It is generally sup-
posed that he left the barons of smaller note to be
summoned by the sheriff, and to sit by représen-
tation with the more powerful nobility. This,
however, gave rise to the ultimate separation of
the parliament into two houses. This important
event was gradually produced and finally accom-
plished, according to Mr. Hume, about the year
1295, or 23d year of the reign of Edward I. when
the knights of the shire withdrawing from the house
of
peers, and uniting their interests and votes with
the burgesses, constituted the house of commons
in its present form. But Professor Christian says,
“ it is certain that there was not an actual separa-
“tion of the two houses, till the end of the reign
“ of Edward III. or the beginning of Richard II."*
Here we are naturally led to admire the inscru-
table ways of Divine Providence, in making the
actions of a tyrannical prince subservient to the
liberties of the people. Nothing could be more
remote from the mind of king John, than the
imparting to the nation the vast benefits which it
derives from having two houses of parliament.
Such, however, was the effect of his arbitrary
division of the nobility into great and little barons.
Exclusively of their capacity as members of
parliament and hereditary counsellors of the
crown, the nobility are distinguished from the
commonalty by other circumstances. In all cases
Sec " Concise Account of the Origin," &c. page 11 and 12.
230
of treason and felony, and mişprision of the same,
a nobleman shall be tried by his peers; but for
misdemeanors, as libels, riots, and the like,, he
may be tried like a commoner, by a jury.
This privilege in criminal cases does not extend.
to the bishops; for although they are lords of
parliament, they are not ennobled in blood; and
of course are not peers with the rest of the lords.
Peeresses, however, enjoy this distinction ; and if
a peeress
in her own right shall marry a commoner,
she still remains noble, and shall be tried by her
peers; but if she be noble only by marriage, and
afterwards marry a commoner, she loses her
dignity and falls into the rank of her husband.
Yet if a duchess dowager marry a baron, she
continues a duchess still, because all the nobility
ܪ
are peers.
1
Peers and peeresses cannot be arrested in civil
cases ; and have many peculiar privileges at-
tached to their dignity in the course of judicial
proceedings.
A peer sitting in judgment gives not his verdict
upon oath, like a common juryman, but upon
his
honour. So also he answers to bills in chancery,
upon his honour, not upon his oath. But if he be
examined in court as a witness, either in civil or
criminal cases, he must be sworn like any other
man.
The law shews great tenderness respecting the
honour of peers. Hence, it is much more penal to
spread false reports of them, than of commoners.
231
Scandal against a peer of the realm is called,
“ scandalum magnatum;" and is subjected to pecu-
liar punishment, by various acts of parliament.
The refraining, however, merely from “ speaking
“ evil of dignities,” is a very negative sort of virtue.
It is our bounden duty, upon all occasions, to treat
our superiors with reverence. Whether, therefore,
we dedicate a book to “ the most excellent Theo-
“philus,” or address a letter to “the most excel-
“ lent governor Felix, or to an “elect lady;"
whether we appeal to Cæsar,” make a defence
before “ king Agrippa,” or reply to the rude inter-
ruption of the “ most noble Festus;" we must be
“courteous" to all, rendering them the honour
that is due to their respective rank.
Nobility cannot be destroyed but by death or
attainder. Even the king by his prerogative can-
not degrade a peer. This power is vested solely
in the legislature. It is a popular notion, that
whenever the king makes a peer, he is obliged, if
necessary, to allow him a certain income to sup-
port his dignity; or if a nobleman by any means
become poor, that then the crown must grant him
a sufficiency to maintain his rank ; but this is a
very great mistake. The fact is, that in the reign
of Edward IV. George Neville, duke of Bedford,
was degraded from his nobility by an act of parlia-
ment on account of his poverty. This solitary
instance shews us both the authority of parliament,
and the tenderness with which it exercises its
uncontroulable powers.
.
232
The law regards all the commonalty as equals,
in respect of their want of nobility; and yet the
people, as distinguished from the peerage, are di-
vided into different degrees. The highest personal
dignity, after a noblernan, is a knight of the order
of St. George, or of the garter; first instituted by
Edward III. 1344. Next follows (after certain
official dignities) a knight banneret, if conferred
upon the person by the king himself in the field,
under the royal banners, in time of war; otherwise
he ranks after buronets, who are next in order.
The title of baronet was first created in 1911,
by king James I. to raise money to enable him to
reduce the province of Ulster; and hence, all
baronets have the arms of Ulster added to their
family coat. Rapin says, that “one hundred
“ gentlemen advanced each one thousand pounds,
“ for which this title was conferred upon them. '
But Mr. Hume asserts, that “two hundred patents
“ of that species of knighthood were disposed of
“ for so many thousand pounds;" and attributes
the invention of the title, and of this mode of
raising money, to the earl of Salisbury, the king's
minister. It is a title of inheritance, created by
letters patent, and usually descends to the issue
male.
Knights of the bath follow next in order of
dignity. They are so called from the ceremony of
bathing the night before their creation. This
order was instituted by Henry IV. and revived by
George I.
233
The lowest order of knighthood, though the
most ancient, are knights bachelors. King Alfred
conferred this dignity on his son Athelston, but it
is now fallen into disuse.
These are the only titles of dignity among
commoners; those of esquires and gentlemen being
merely names of worship or respect. But before
these, all colonets, serjeants at law, and doctors in
the three learned professions, take the precedence.
The eldest sons of knights, and the eldest sons
of the younger sons of peers in perpetual succes-
sion, justices of the peace, and others who bear
offices of trust under the king, are denomina-
ted esquires. Whilst all those who study in the
universities, and profess the liberal sciences, and
can live without manual labour, are styled gentle-
men. A yeoman is one who possesseth a freehold
of £40 a year, and is qualified to do every act
which the law requires to be done by one who is
an honest and lawful man.
The rest of the community are called tradesmen,
artificers, and labourers.
In all legal proceedings every man must be dis-
tinguished by the name of his estate, degree, or-
mystery, in conformity to the statute of i Hen. V.
ch. 5.
The rules of precedence in England are settled
either by established custom, by express statutes,
or by the king's letters patent. The following table
exhibits the priority of rank, from the sovereign
to the peasant.
Q
234
TABLE OF PRECEDENCY OF RANK.
The KING,
The PRINCE of WALES.
The Princes, Sons of the King.
Brothers of the King.
Uncles of the King.
Grandsons of the King.
Sons of the Brothers or Sisters of the King.
Archbishop of Canterbury, Lord Primate of all England.
The Lord High Chancellor, or Lord Keeper.
The Archbishop of York, Primate of England.
The Lord High Treasurer.
The Lord President of the Privy Council.
The Lord Privy Seal.
The Lord High Coustable.
Earl Marshal.
The Lord High Admiral.
The Lord Steward of his Majesty's Household.
The Lord Chamberlain of his Majesty's Household.
Dukes, according to their Patents.
Marquisses, according to their Patents.
Eldest Sons of Dukes.
Earls, according to their Patents.
Eldest Sons of Marquisses.
Younger Sons of Dukes.
Viscounts, according to their Patents.
Eldest Sons of Earls,
Younger Sons of Marquisses.
The Bishops of London, Durham, Winchester, and all other
Bishops, according to their Seniority of Consecration.
Barons, according to their Patents.
The Speaker of the House of Commons.
Eldest Sons of Viscounts.
Younger Sons of Earls.
235
Eldest Sons of Barons.
Knights of the Garter.
Privy Counsellors.
The Chancellor of the Exchequer.
The Chancellor of the Duchy of Lancaster,
The Lord Chief Justice of the Court of King's Bench.
The Master of the Rolls.
The Lord Chief Justice of the Court of Common Pleas.
The Lord Chief Baron of the Exchequer.
Judges and Barons of the degree of the Coife of the said Court,
according to Seniority.
Bannerets, made by the King himself in person, under the royal
standard, displayed in an army royal, in open war, for the
term of their lives, and no longer.
Younger Sons of Viscounts.
Younger Sons of Barons.
Baronets,
Bannerets, not made by the King himself in person.
Knights of the Bath.
Knights Bachelors.
Eldest Sons of the younger Sons of Peers.
Eldest Sons of Baronets.
Eldest Sons of Knights of the Garter.
Eldest Sons of Bannerets.
Eldest Sons of Knights of the Bath.
Eldest Sons of Knights.
Younger Sons of Baronets.
Esquires of the King's Body.
Gentlemen of the Privy Chamber.
Esquires of the Knights of the Bath.
Esquires by Creation.
Esquires by Office.
Younger Sons of Knights of the Garter.
Younger Sons of Bannerets of both kinds.
Younger Sons of Knights of the Bath.
Q 2
236
1
Younger Sons of Knights Bachelors.
Gentlemen entitled to bear Arms.
Clergymen, Barristers at Law, Physicians, and Officers in the
Navy and Army, who are Gentlemen by Profession.
Yeomen,
Tradesmen,
Artificers.
Labourers.
But not to forget the ladies. It may be ob-
served generally, that married women are intitled
to the same rank amongst themselves as their hus-
bands enjoy amongst men ; and widows retain the
rank of their deceased husbands, excepting such
rank were merely professional or official. Unmar-
ried women are allowed at all times the same rank
amongst females as their eldest brothers bear
amongst men during the lives of their fathers.
Such is the difference of rank which the laws
and customs of England have wisely established
among us.
Subordination is the very bond of so-
ciety; and without it, no civilized state can exist,
or enjoy any practical liberty. As the different
bodies in the planetary system gravitate towards
each other and towards the suu, as well as the sun
towards them, and are thereby preserved from
confusion and destruction; so the reciprocal influ-
ence which the various ranks in society have upon
each other, produces that order and harmony
which constitute the public peace and happiness.
Much has been said of late years about equality.
All men, it is said, are by nature equal; and from
this proposition a conclusion has been drawn, that
237
all have equal rights. Every man, indeed, is born
in sin; and is at first a helpless creature; and
in that sense, all men come into the world upon
a level. But in no other respect can they be
said to be equal. From our earliest moments
we manifest an inequality of disposition, ca-
pacity, and inclination ; which, “ growing with
“our growth,” necessarily leads to that distinc-
tion of honour, wealth, and power, which we see
obtains in the world.
To assert any other kind of natural equality than
that of sinfulness and imbecility, is to resist the
plainest evidences of reason and revelation, and to
falsify the experience of all nations in every age of
the world.
If, however, by the term equality nothing more
is meant, than that all men have an equal right to
justice or the possession of their rights; so obvious
a-truth is readily admitted. And where, it may
be asked, is this theory reduced to practice if not
in England ? In vain will justice ever be looked
for on earth if it is not to be found in the British
Constitution : which equally protects the peer and
the peasant; the rich and the poor ; the learned
and the ignorant; the master and the servant; and
extends its wise provisions equally to all, without
any distinction of sex, condition, or age.
It will, probably, be found upon enquiry, that
those nations enjoy the highest degree of rational
liberty, whose inhabitants are divided into the
greatest number of degrees of rank; and where
/
238
the highest honour, except the supreme executive
authority, is accessible to those who compose the
lowest order in society, Such is precisely the case
in this happy country. Here the meanest peasant
may, by his industry, integrity, and skill, arrive at
the highest post in the church, in the army, or the
.navy. He may sit in the chief seats of justice, or
become the most dignified person in either house
of parliament. In short, the hand which now
throws the shuttle, or grasps the plough, may pos-
sibly one day guide the helm of state.
If, then, the good order, peace, and happiness
of the community depend so much on distinction
of rank, every considerate and loyal man will pay
a scrupulous regard to all those matters of cere-
mony and etiquette which are so conducive to its
due preservation. And in this view of the subject,
a conscientious reverence of our superiors, and a
due attention to all the minutia which are com-
prehended in the term politeness, evidently become
a christian duty:
CHAP. XIX
OF THE ARMY AND NAVY.
Almost every page of history is “polluted with
so blood.” Pride, and lust, and envy, and ambi-
tion, have in all ages conspired against the peace,
and disturbed the repose of men. These vile and
1
239
ungovernable passions have at all times been the
cause of that " distress of nations," which is the
necessary result of all wars: “From whence come
wars and fightings among you? conie they not
* hence, even of your lusts?” Self-preservation,
however, being the first law of nature, those peace-
able nations which are exposed to the rapacity of
neighbouring powers, have found it necessary, for
their own safety, to assume a warlike character.
In every other view, the profession of a soldier is
inconsistent in a free state; and, indeed, the laws
of England know of no such thing amongst Britons
as a perpetual soldier. The proper idea of an
English soldier, is that of a free citizen voluntarily
engaging for a time in a military employment, for
the defence of his king and country; and not of
an armed slave of power, overawing bis fellow-
countrymen into subjection to a despotic ruler.
All historians agree, that the great king Alfred
first settled a national militia in England, and
made all his subjects soldiers, by a prudent disci-
pline. Under our Saxon monarchs, armies were
entrusted to the command of the dukes, or here-
tocks, who were vested with very considerable
powers: but it does not appear that the kings of
England had any body guard until the reign of
Henry VII. This prince at his coronation insti-
tuted, partly from pomp, but chiefly for personal
security, a band of fifty archers, who were termed
yeomen of the guard. Henry, conscious that his
title to the crown was very questionable, was
240
aware that so novel an appearance might naturally
impress the people with the idea, that he enter-
tained a jealous diffidence of his subjects; lest,
therefore, they should think that this force was,
raised merely to intimidate them on the present
occasion, he declared the institution to be
perpe-
tual. Such was the origin of the band of yeo-
manry, which is continued to this day.
A material alteration took place in our military
system after the Norman conquest. King Wil-
liam enforced the feudal law in all its rigour; the
whole of which is builded on a military plan, He
divided all the lands in the kingdom into knights
fees, in number about 60,215; 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 time a campaign was usually
finished, and a kingdom either conquered or vic-
torious. But in process of time, men grew weary
of this bodily fatigue and hardship, and military
service in person was exchanged for pecuniary aids
to the prince as early as the reign of Henry II.
At length the military tenures were abolished, at
the restoration, by statute 12 Car. II. ch. 24.
In case, however, of domestic insurrection, or
prospect of foreign invasion, provision was made
by law for the defence and security of the nation.
The statutes of 27 Hen. II. and 13 Edw. I. ch. 6.
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
241
1
peace; and constables were appointed in all the
hundreds, to see that such arms were provided.
No mian, however, was compelled to go out of
the kingdom, nor out of his shire, but on the most
urgent necessity; nor provide soldiers, unless by
consent of parliament.
Another important change took place in the
military system, about the time of Henry VIII.
Lord-lieutenants were then introduced as standing
representatives of the crown, to keep the several
counties in military order; and in this state, things
continued till the repeal of the statutes of armour,
in the reign of James I.
A question was at length started in the long
parliament, in the reign of the first Charles, how
far the power of the militia did inherently reside
in the king, since it rested merely upon immemorial
usage. Great heat and animosity were employed
in debating this delicate and unconstitutional
question ; the decision of which, was the cause of
the fatal rupture between that unfortunate monarch
and the parliament. For the two houses not only
denied the prerogative of the crown, but illegally
seized into their own hands the whole power and
- command of the militia. But the sole right of the
king to govern and command the military state,
was afterwards recognised by 13 and 14 Car. II.
Rules were laid down for putting the whole military
power into a method of regular subordination; and
the militia, as it now stands by law, is principally
builded upon the statutes then enacted, although
242
the laws have been frequently altered and amended,
down to the present day.
The militia is only for the defence and security
of the nation: and it is unlawful, and contrary to
the bill of rights, for the king of England to have
a standing army in time of peace; unless it be with
the consent of parliament.
But as the kingdom would be in great danger
from the standing armies upon the continent, were
it left at any time entirely without an armed force;
the legislature has annually thought it necessary
for the safety of the realm, to maintain an army
even in time of peace; which, however, is ipso
facto disbanded at the end of the year,, unless
continued by parliament.
This military force is kept in due order and
discipline by an act of parliament, which passes
annually, “to punish mutiny and desertion,” even
with death itself, if an offender should be adjudged.
by a court martial to suffer it.
Soldiers enjoy many advantages. The royal
hospital at Chelsea affords a comfortable asylum
for such as are worn out in the service; and
many receive pensions for life upon being dis-
charged. A soldier, too, may settle in any town
in the kingdom, without exception, and exercise
any trade he pleases, notwithstanding any law,
custom, or charter to the contrary. When in
actual service, a soldier may dispose of his wages
and personal property by a nuncupative will,
without those forms and expenses which in other
-
243
the royal navy,
cases are necessary to make them effectual in law.
Besides these privileges, the soldier enjoys some
others; and one, which is very conducive to his
comfort, when at a distance from all endeared
connexions: all non-commissioned officers and
privates may send and receive letters free of postage,
under certain restrictions.
By the maritime state, is intended the whole of
“ the wooden walls of Old Eng-
land,” the floating bulwark of the island.
The navy is much more congenial with the true
principles of the constitution than the army, inas-
much as the liberties of the country cannot be
endangered by it.
The existence of the English navy is very
ancient; and our kings, in all periods of our
history, have paid great attention to its improve-
ment. It had arrived to such a degree of perfec-
tion in the 12th century, that the code of maritime
laws, called the laws of Oleron, was confessedly
composed by our king Richard I. at the isle of
Oleron, on the coast of France, then part of the
possessions of the crown of England.
For many ages the royal navy was far from
numerous; even in the reign of Elizabeth, the
number of royal ships did not exceed thirty-three,
but is now increased to upwards of twelve hundred.
As our commerce, however, extended, the envy of'
other nations was excited; we had more territory
and floating property to defend; and consequently,
1
244
means.
the enlargement of our naval force gradually be-
came more and more necessary.
The present unrivalled state of the royal navy.
is, doubtless, very much owing to the salutary
provisions of the statutes called the “navigation
“ acts.” Perhaps a combination of second causes
may have conduced to that naval skill and prowess
by which we are so eminently distinguished above
all other nations. But we must ascribe it all to
the wisdom and goodness of God, who always
accomplishes his purposes by the most suitable
He has been pleased to favour us with
peculiar blessings. “He hath not dealt so with
any nation.” Our privileges being deposited in
this small island of the sea, how appropriate are
the means of defence with which His Providence
has furnished us! How have these means been
enlarged, in proportion as our liberties have been
increased by our own laws; or endangered by the
envy, ambition, and arrogance of foreign enemies !
The navy is manned principally by the king's
commission, empowering the lords of the admi-
ralty to impress seamen, as the state of public
affairs may require. This method of obtaining
sailors appears at first sight to be an invasion of
the liberty of the subject. But its lawfulness is
unquestionable, and will not admit of doubt in
any court of justice.
This public measure has been complained of
ever since England has had a navy. But the
245
practice being established by immemorial custom,
as well as implied in various statutes, and having
been brought down from the earliest period to the
present time in a regular succession of precedents,
it was the opinion of Sir Michael Foster and others,
that it is part of the common law of the land. And,
doubtless, if the evil complained of admitted of a
remedy compatible with the safety of the commu-
nity, the enlightened legislature of a free people
would long ere now have discovered and enacted it.
It is state necessity only which justifies it.
The practice,” says lord Mansfield, “is deduced
“ from that trite maxiin of the constitutional law
“ of England,” that private mischief had better
* be submitted to, than that public detriment and
• inconvenience should ensue.'
The practice, too, is plainly defensible from
analogy. We have seen, that in case of a foreign
invasion or domestic insurrection, the sheriff has
the power of calling out the “posse comitatus” to
suppress the one or repel the other. Now sup-
posing that the people of Norfolk were called out
under either of the above circumstances; would it
not be folly in them to resist the sheriff, and plead
in excuse that they were oppressed, because the in-
habitants of Wales were peaceably following their
occupations ? Every wise man must see, that the
locality and urgency of the danger legalize the
promptitude and partiality employed in applying
the remedy. So, on the breaking out of a war, the
scene of danger, or rather the place where we can
246
most effectually prevent it, is the high sea. The
admiralty, therefore, calls out its posse comitatus,
(if the expression may be allowed), and it is absurd
in seafaring men to complain of injustice, merely
because the landsmen are not compelled to go with
them. A seaman can never be employed but
against the enemies of his country. No true
Englishman, then, when his services are called for
to protect the public safety, will enquire, whether
the king's right to compel him to defend his country
be the custom of England, or a grant of the legis-
lature. Every measure should indeed be adopted
to lessen the evil complained of; but after all, it
will probably be found, in fact, that the spur of the
press is wanted to man the navy with effect.*
There are, however, other methods of supplying
the navy with seamen, besides pressing. Parishes
may bind oụt poor boys apprentices to merchant-
men, who shall be protected from the impress for the
-first three years; and if they are impressed after-
wards, their masters shall be allowed their wages.
Great advantages in point of wages, are given to
volunteer seamen, in order to induce them to enter
into the king's service; and every foreign seamar,
who, during a war, shall serve two years in any
man of war, merchantman, or privateer, is ipso
facto naturalized.
There are certain express rules, articles, and
orders, first enacted by the legislature, soon after
* On this subject, see Junius, letter 74,
247
the restoration, but since amended as circum-
stances arose; by which a regular discipline is kept
ụp in the navy. In these articles, every possible
offence is specified, and its proper punishment
annexed.
The privileges of sailors are much the same as
those enjoyed by soldiers. And Greenwich hos-
pital is to disabled seamen what Chelsea is to
wounded soldiers. Neither seamen on board a
king's ship, nor a soldier, can be arrested for any
debt, unless the amount is sworn to be not less
than £20.
The marines are likewise a very important part
of the national defence. This useful body of men
are soldiers, who serve either on shore or on ship-
board. They are under the orders of the lords of
the admiralty, who exercise their authority over
them by virtue of an annual act, "for the regulation
“ of his Majesty's marine forces while on shore."
CHAP. XX.
OF CORPORATIONS.
All personal rights die with the person ; but
there are rights which the benefit of society re-
quires to be continued when the person in whom
they were first invested is no more. Yet as the
formal revival and recognition of these rights in a
succession of persons would always be inconve-
248
* And
nient and sometimes impracticable, it has been
found necessary to create artificial persons, who
may perpetually maintain and enjoy the original
rights by a sort of immortality ; these artificial
persons are what we call bodies politic, bodies
corporate, or corporations. The advantages which
are thus secured to the interests of religion, learn-
ing, and commerce, have been found by experi-
ence to be very great.
A corporation may be very fitly compared to a
river ; which is the same river, although its parts
are continually changing and passing away.
as the adjacent fields are fertilized by it from age
to age; so corporations continue to impart to all
within their precincts, the various privileges and
benefits with which they were at first endowed.
With respect to their origin, Plutarch informs
us that they were invented by Numa, as a politic
measure to settle the animosities between the
Romans and the Sabines. The introduction of
them, however, into modern Europe, seems to
have been the work of Lewis the Gross, who
erected the French boroughs into corporations,
with a view to deliver the people from the feudal
slavery, and to give them protection by means of
certain privileges and a separate jurisdiction. It
appears, from doomsday, that the greatest boroughs
« ille
Labitur, et labetur in omạe volubilis ævum.
Hor, ep. ii. lib. 1.
1
249
with us, were, at the time of the conquest, little
more than country villages; the inhabitants of
which were only a number of low dependant
tradesmen, not incorporated, and living without
any particular civil tie.
The first corporation established in England
was the fraternity of St. Thomas à Becket, under
the name of “ Merchant adventurers," incorpo-
rated in the year 1564.
There are two sorts of corporations regarded
by the laws of England ; namely, aggregate and
sole.
A corporation aggregate consists of many per-
sons united together into one society, and is kept
up by perpetual succession. Of which kind, are
the mayor and commonalty of a city or borough;
the head and fellows of a college ; and the dean
and chapter of a cathedral.
A corporation sole consists of a single person,
and his successors, who are incorporated by law,
in order to give them some legal advantages, par-
ticularly that of perpetuity, which they could not
have in their natural persons. In this sense, the
king is a corporation sole; so is a bishop; some
deans and prebendaries; and so is every parson
and vicar. This species of corporation is a consi-
derable refinement by the English upon the origi-
nal Roman principle, which required three persons
to constitute a corporate body.
R
250
If it be considered, that the freehold of the
tithes, &c. was originally given to the clergyman
of a parish, as a temporal recoinpence for his
spiritual services to the people, and intended to be
so to all his successors; the wisdom of the law in
making a parson and viçar a body corporate, will
be very manifest. For had not the law prevented
it, the freehold would have descended to their
heirs, and not to their successors.
There is still another division of bodies corpo-
rate; and that is, into ecclesiustical and lay ; in
which, either aggregate or sole corporations may
be comprehended.
Ecclesiastical corporations, are where the mem-
bers that compose thein, are entirely spiritual
pérons ; such as bishops, certain deans, and pre-
bendaries; all archdeacons, parsons, and vicars ;
and these are sole corporations. Deans and chap-
ters are corporations aggregate.
These corporations were instituted for the pro-
moting of religion, and the perpetuating of its
benefits in the world. Lay corporations are of
two sorts, civil and eleemosynary,
Civil corporations are such as the king, who is
inade a corporation, to prevent the possibility
of a vacancy of the throne; for immediately upon
the demise of the king, his successor is in posses-
sion of all the regal rights and dignities. The
mayor and commonalty, bailiff and burgesses, of
London, Westminster, and other towns, erected
251
into corporations for the good government of their
respective districts, and the promotion of trade
and commerce; the colleges of physicians and
surgeons for the advancement of medical know-
ledge; the royal society; the society of antiqua-
rians; and the two universities for the extension
of the various branches of literature; are all civil.
corporations.
Eleemosynary corporations, are all hospitals for
the maintenance of the poor, sick, and impotent;
and such colleges as are founded for two purposes,
viz. for the promotion of piety and learning, and
for imparting assistance to the members of those
bodies, to enable them the better to prosecute
their devotion and studies.
Corporations may be created either by common
law, by prescription, or by act of parliament.
But as the king's consent is absolutely necessary,
every one of these methods may be reduced to
this of the king's letters patent, or charter of
corporation; for in all cases the king's consent is
either implied or expressly given.
When a corporation is erected, it is necessary
that a name be given to it; and by that name only
it must sue and be sued, and do all legal acts.
When corporations are once formed and named,
they acquire various powers, rights, capacities,
and incapacities. Some of these are incident to
all corporations, such as the right of electing
members, to keep up perpetual succession; the
R 2
252
power of doing all such legal acts as natural
persons may perform; of purchasing lands, and
holding them for themselves and successors; of
having a common seal, the affixing of which makes
one joint assent of the whole community; and of
making bye-laws, for the better government of
the society; which laws, however, must not be
contrary to the laws of the land, otherwise they
are void.
There are likewise certain disabilities attached
to aggregate corporations. They cannot commit
treason, or any other offence, in their corporate
capacity; although some individual members may
be found so lost to every sense of duty, as to com-
mit the most flagrant crimes. Many other things
of this sort that can be done and suffered by indivi-
duals, but which cannot be committed or incurred
by corporate bodies as such, may be reckoned
among their incapacities.
The particular duty of a corporation is to act up
to the end or design, whatever it bė, for which it
was created by its founder. But as all corporate
bodies, like individuals, are frail and liable to err,
the law has provided proper persons to visit,
inquire into, and correct, all improprieties that
arise in any corporation, whether sole or aggre-
gate; and to rectify their irregularities and mis-
concluct.
Formerly the pope, but now the king, is the
legal visitor of the archbishop or metropolitan ; the
archbishop has the charge of all the bishops in his
253
.
province; and the bishops superintend all deans
and chapters, parsons, vicars, and all other spi-
ritual corporations in their respective dioceses.
The founders, their heirs or assigns, are the
visitors of all lay corporations, whether civil or
eleemosynary.
By the founder of a corporation, the law, in the
strict and original sense of the term, understands
the king, who only can incorporate a society; so
that in civil corporations, there is no other founder
but the king. But with respect to eleeinosynary
foundations, such as colleges and hospitals, where
there is an endowment of lands, the right of
visitation devolves, by law, to the patron or
endower, his heirs and assigns.
The king exercises his jurisdiction over civil
corporations in his court of king's bench; where,
and where only, all misbehaviours of this kind of
corporations are inquired into and redressed. It
is not, however, customary in professional lan-
guage, to call this authority of the king's bench, a
visitorial power.
If the endower of an eleemosynary corporation
appoint no one as a visitor, that office devolves on
the bishop of the diocese.
Corporations may be dissolved by act of parlia-
ment, which is boundless in its operation; by the
natural death of all its members, in cases of
aggregate corporations; by surrender of their
franchises into the hands of the king; and by for-
feiture of their charters, through negligence or
254
abuse of their privileges. When a corporation
has abused its franchise, the method taken to
declared it void, is to bring an information, in
nature of a writ of quo warranto, to inquire by
what warrant the members now exercise their
corporate power, having forfeited it by such and
such proceedings. When a corporation is dis-
solved, the endowment reverts to the heirs of the
patron who endowed itBy such dissolution, the
debts of a corporation are totally extinguished, so
that its individual members are by no means per-
sonally or collectively accountable for them.
King Charles II. enforcing the law by issuing
the writ of quo warranto against the city of Lon-
don, the rest of the corporations throughout the
kingdom were induced to surrender their charters
into his hands. The king afterwards restored
the charters upon certain conditions, whereby he
obtained large sums of money. But after the
revolution, the statute 2 W. and M. ch. 8. reversed
the judgment against the city of London; and
enacted, that its franchises shall never more be
forfeited for any cause whatsoever.
CHAP. XXI.
OF THE FEUDAL SYSTEM.
The beauty or value of any thing, is frequently
best illustrated by comparing it with its contrast.
Thus an object never looks so white as when
opposed to one that is black. Nothing heightens
our enjoyment of the verdure of spring or the fruit-
fulness of autumn, so much as the remembrance
of the barren aspect and chilling frosts of winter.
So if we wish to feel a lively gratitude for the pos-
session of our present civil and religious liberties,
we must obtain a clear comprehension of the feudal
system, by which our heroic ancestors were for
many ages most grievously oppressed. Indeed,
some acquaintance with the feudal system is indis-
pensable to theacquiring of a competent knowledge
of the rise and progress of our present constitution,
The feudal system originated with the northern
tribes, who introduced it into all the Roman pro-
vinces which they subdued, in order that they
might secure themselves from the revolt of their
newly acquired subjects. At the conquest of
England by the Saxons, the invaders thought
themselves too well secured by the sea, to make it
necessary to adopt a military establishment; and
therefore they annexed but small quantities of
256
land to the offices which were conferred upon
their leaders, who continued in their separate
commands only during pleasure. But these pre-
carious conditions were not congenial with the
feelings of the Norman barons, who had relin-
quished greater advantages in their own country
to follow the fortunes of William. The Conqueror,
therefore, in order to keep possession of England,
was obliged to copy the military tenures, which
now universally prevailed upon the continent.
Such was the introduction of this rigorous law
into this island. A law, which, whilst it exposed
the inhabitants to various hardships, afforded
them the advantages of mutual protection, and of
promptitude both of council and action.
“ The feudal system has been sometimes de-
"scribed as a system of slavery, sometimes as a
system of liberty; in fact it contained much of
“ both ; but by preserving the one and abolishing
" the other, we have raised the noble fabric of the
English constitution."*
The fundamental maxim of the feudal law, is,
that the king is the supreme lord of all the landed
property in the kingdom. This he grants out in
large districts to the chief men in the realm, who
deal it out in smaller parcels to their inferiors.
These allotments were originally called feoda,
feuils, fiefs, or fees ; signifying in the northern
language, a conditional stipend or reward,
* Professor Christian,
257
The condition annexed to every feud was, that
the possessor should do service faithfully both at
home and abroad to him by whom it was granted.
For which purpose he took the oath of fealty; and
if he violated his oath by not performing the sti-
pulated service, or by deserting his lord in battle,
the lands were again to revert to their original
owner. Upon this foundation of the feudal law
was raised a proper military system, by which an
army of feudatories was always ready at a short
notice to muster for the defence of the country.
The Conqueror, however, was not able fully to
establish the feudal law at once in England; but
at length, about the 20th year of his reign, he sum-
moned the nobility to attend him at Sarum, where
all the principal landholders submitted their lands
to the yoke of military tenure, became the king's
vassals, and did homage and fealty to his person,
as though they had really received their estates
from his bountiful hands. The consequence of
which was the compiling of the famous book called
Doomsday; which ancient record is now remaining
in the exchequer, fair and legible, consisting of
two volumes, which contain a survey of all the
lands in England. It was begun by five justices,
assigned for that purpose in each county, in the
year 1081, and finished in 1086. This book is of
such high authority in deciding whether lands are
ancient demesne or not, that from it there is no
appeal. The Conqueror himself submitted to its
decision in some cases wherein he was concerned
258
William and his son Rufus, well skilled in the
niceties of the feudal system, kept up with a high
hand all the rigours of its severe doctrines.
In the reign of John, the feudal grievances
became so intolerable, that they occasioned his
barons or principal feudatories to rise; who
choosing Robert Fitzwalter for their general, pro-
ceeded to make war upon the king. The barons
represented their grievances, and prayed the king
to grant them a renewal of the charter of Henry I.
and a confirmation of the laws of Edward the
Confessor. The king having tried various expe-
dients to elude the blow in vain, at length signed
and sealed the Great Charter at Runnymead,
between Windsor and Staines. This famous deed
either granted or secured very important liberties
and privileges to the barons, to the clergy, and to
the people. From hence, it is obvious that our
liberties are not mere invasions of the ancient royal
prerogative, but a restoration of the fundamental
principles of that excellent constitution of which
our ancestors had been deprived by feudal tyranny.
By this celebrated charter of English: liberties,
the rigour of the feudal law was mitigated, and
its abuses regulated. All the privileges granted
by, the king in favour of the barons, were extended
by them to their inferior vassals. The courts of
justice were made stationary, instead of following
the king from place to place; and regular circuits
held every year in appointed places in each county.
It ordained that no man should be taken or impri-
259
This was per-
soned, or dispossessed of his property, or outlawed,
or banished, unless by the legal judgment of his
peers, or by the law of the land. In short; the
equal distribution of justice; and the security of
property, liberty, and life. to every Englishman,
were the result of this extraordinary victory of the
barons over the king.
Feuds were granted by words of gratuitous and
pure donation, “dedi et concessi.”
fected by the ceremony of corporal investiture, or
open deliverance of possession, in the presence of
the other feudatories or vassals. And besides an
oath of fealty, or profession of faith, to the lord,
the vassal or tenant upon investiture usually did
homage to him, openly and humbly kneeling;
being ungirt, uncovered, and holding up his hands
both together between those of his lord, who sat
before him; and there professing that “lie did
“ become his man from that day forth, of life, and
limb, and earthly honour.” He then received a
kiss from his lord. This ceremony was denomi-
nated homage or manhood, from the stated form
of words, “devenio vester homo."
The next consideration after the tenant had
done homage, was the service; which, in conse-
quence, he was bound to render as a recompense
for the land which he held. This service was
twofold ; (viz.) to follow or do suit to, the lord in
his courts, in the time of peace; and in his armies
or warlike retinue, when necessity called him to
the field.
260
The lord was anciently the legislator and judge
over all his tenants; and therefore the vassals
were bound by their fealty to attend their domestic
courts baron, which were instituted in every manor,
for doing speedy and effectual justice to all the
teniants.
The military branch of the tenant's, 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 land.
Feuds were originally granted at the will of the
lord; afterwards from year to year; then for the
life of the vassal; and at length they became
hereditary. But it was an unalterable maxim in
feudal succession, that “none were capable of
“ inheriting a feud, but such as were of the blood
“ of the first feudatory, that is, lineally descended
“ from him.” The descent being thus confined,
originally extended to all the males alike. But
this being found inconvenient, the military feuds
at length descended to the eldest son, to the exclu-
sion of all the rest ; in imitation of the honorary
feuds, or titles of nobility, which were now intro-
duced, and in their nature indivisible.
A feudatory could not alienate, or dispose of
his feud; neither could he exchange, nor yet
mortgage, nor even devise it by will, without the
consent of his lord; who on the other hand could
not transfer his signiory or protection, without the
consent of the vassal.
261
The chief feudatories being frequently unable to
cultivate their own lands, soon found it necessary
to commit part of them to inferior tenants; whom
they obliged to such returns in service, corn, cat-
tle, or money, as might capacitate them to attend
their military duties without distraction. And
these returns or reditus were the origin of rents.
This system, so replete with slavery and hard-
ship, was, after many fruitless attempts to amelio-
rate it, finally abolished by statute 12 Car. II.
ch. 24. which act should be regarded as creating a
very important æra in the history of our laws and
liberties.
The tenures by which our ancestors held their
lands under the feudal system, were shackled with
a variety of oppressive appendages; such as aids,
relief, wardship, &c. &c. But upon the whole, it
may be remarked, that the modern English tenures
are freed from these incumbrances, and are all
now in effect reduced to two species; (viz.) to free
tenure in common socage, and base tenure by copy
of court roll.
!
CHAP. XXII.
OF LAST WILLS AND TESTAMENTS.
A
53
<<
All men think all men mortal but themselves,"
and thus are they continually deceived. " Their
“ inward thought is, that their houses shall con-
“ tinue for ever; and their dwelling places, to all
generations; they call their lands after their
own names. Nevertheless man being in honour,
“abideth not." Hence we see, “ that wise men
die, likewise the fool, and leave their wealth to
s others." And when “a man dieth, he shall
carry nothing away.” “ He heapeth up riches,
* but cannot tell who shall gather them.” How-
ever, as one generation passeth away, so another
riseth up, and occupieth both the places and pro-
perty of those who have trodden upon the stage of
life before them.
In order, therefore, to prevent those endless
contentions which would arise upon the death of
every man, if it were uncertain to whom his
pro-
perty should descend at his decease; the law has
fixed established rules of inheritance, both to real
estate and to personal effects.
The title, or the means whereby the owner has
a just possession of his property, whether real or
personal, is of various kinds. There are titles by
269
:
descent, by purchase, by occupancy, by prescrip-
tion, by forfeiture, by alienation, by prerogative,
by escheat, by custom, by succession, by marri-
age, by judgment, by gift, grant, and contract, by
bankruptcy, and by testament and administration.
But as it would occupy much more room to
detail these several titles than is compatible with
the present work, we shall only treat of title by
testament and administration, as the one of most
general concern.
By the law, every man enjoys the right of
continuing his property after his death, in such
persons as he shall expressly name. In defect of
such appointment or nomination, or where no
nomination is permitted, the law of every civilized
society has directed the goods to be vested in
certain particular persons, to the exclusion of all
others. The former method of acquiring personal
property, according to the express directions of the
deceased, is called a last will or testament. The
latter, which is also according to the presumed will
of the deceased, though not expressed, is in Eng-
land termed an administration.
Testaments are unquestionably of very highı
antiquity. The sacred writings will convince us
of their very early use. In the book of Genesis,
we learn that Jacob bequeathed to his son Joseph
a portion of his inheritance, double to that of his
brethren. His will, indeed, was not carried into
execution until many hundred years afterwards.
264
We find, however, that the posterity of Joseph
were divided into two distinct tribes, those of
Ephraim and Manasseh, who had two separate
inheritances assigned them. But the descendants
of each of the other patriarchs formed only one
single tribe, and possessed only one lot of in-
heritance.
When a person dies intestate, or without a will,
the bishop grants letters of administration, either to
the widow, or to the next of kin, or to both of
them, at his own discretion. These persons are
styled administrators, and are put upon the same
footing with regard to suits and accountability, as
executors appointed by will. Anciently, when a
person died intestate, the law allowed the king to
seize upon his goods, as general trustee of the king-
dom. But out of favour to the church, this branch
of the prerogative was afterwards vested in the
prelates, who were intrusted with the goods of the
deceased for charitable purposes. The bishops
were supposed to be better judges than laymen
what would be for the benefit of a man's soul; and
therefore the right of disposing of his effects for
that purpose was given up to them by the crown.
Being thus possessed of the power to dispose of
the effects of the deceased, it followed, of course,
that the probate of wills should also be their pri-
vilege. For it was reasonable, that the will of the
deceased should be proved to the satisfaction of
the person, whose right of distributing his effects
265
for the good of his soul was thereby completely
superseded. Upon this footing stands the general
law of adininistration at this day.
All persons, however, cannot make a will. The
law prohibits all males under the age of fourteen
years, and females under the age of twelve, from
disposing of their property. Madmen, fools, and
idiots, persons grown childish with age, or whose
senses are besotted with drunkenness, are inca-
pable of making any will so long as their mental
imbecility continues. But if a person of sound
mind make a will, such will is not revoked by any
subsequent insanity. It is a general rule, to
which the queen consort is an exception, that a
wife cannot make a will without the consent of
her husband. Yet where personal property is
given to a married woman for her sole and sepa-
rate use, she may dispose of it by will without
the consent of her husband. Traitors and felons,
likewise, on account of their criminal conduct, are
prohibited from making a will from the time of
their conviction.
The nature of a testament may be gathered from
its definition, which is "the legal declaration of a
"man's intentions, which he wills to be performed
w after his death."
Testaments are divided into two sorts ; (viz.)
written, and verbal or nuncupative. The former
of which is committed to writing ; the latter de-
pends entirely upon oral evidence, being declared
:
S
266
V
1
by the testator, in extreme cases, before a suffi-
cient number of witnesses, and afterwards reduced
to writing
A codicil is a supplement to a will; or, an
addition made by the testator, annexed to, and to
be taken, as part of a testament. This also may
be written or nuncupative.
Nuncupative wills and codicils, however, are
subjected to the following restrictions. No written
testament shall be revoked or altered by a subse-
quent nuncupative will (except when made by
mariners at sea, and by soldiers in actual service),
unless the same be in the life-time of the testator
committed to writing and read over to and approved
by him; and unless the same be proved to have
'been so done by the oaths of three such witnesses,
at the least, as are admissible upon trials at com-
mon law.
No nuncupative will shall in any wise be good
where the estate bequeathed exceeds £30; unless
proved by three such witnesses as aforesaid, who
were present at the making thereof: and unless
they, or some of them, were specially required to
bear witness thereto by the testator himself; and
unless it was made in his last sickness, in his
own habitation or dwelling house, or where he had
been previously resident ten days, at the least;
except he be surprised with sickness on a journey,
or from home, and dies without returning to his
own house. No nuncupative will shall be proved
by the witnesses after six months from the making
1
i
267
of it; unless it were put in writing within six days.
Nor shall it be proved till fourteen days after the
death of the testator ; nor till process hath first
issued to call in the widow, or next of kin, to con-
test it, if she or they think proper.
The testamentary words must be spoken with
an intent to bequeath. Any loose idle discourse,
in the last illness of the deceased, is not sufficient;
for he must require the bye-standers to bear witness
of his real intentions. The will must be made at
home, unless prevented by unavoidable accident;
it must be made in the testator's last illness; it
must not be proved at too long a distance from his
death ; nor yet too hastily and without notice: so
carefully has the legislature guarded against any
frauds in setting up nuncupative wills; and hence
they are now seldom heard of.
But with respect to written wills : a testament
of chattels, written in the testator's own hand,
though it should have neither his name nor seal to
it, nor any witness present at its publication, is
good; provided there be sufficient proof of the
document being in his own hand writing. And
although written in another man's hand, and never
signed by the testator, yet if proved to be accord-
ing to his instructions and approved by him, it
has been held to be a good testament of the per-
sonal estate. But it is the safer and more prudent
way, for the testator to sign, seal, and publish it,
in the presence of witnesses.
s 2
268
As no testament is of any force till after the
death of the testator, the last overthrows all former
wills he may have made. But the republication
of a former will revokes one of a subsequent date,
and establishes the first again.
But the devising of lands is altogether of a
different nature from the testaments of personal
estates. It is a conveyance by statute, unknown
to the feudal or common law, and not under the
same jurisdiction as wills relating to personal
property.
:: In general, no will of lands was permitted till
the reign of Henry VIII. and then only of a
certain portion ; for it was not till after the resto-
ration that the power of devising real property
became so universal as at present. Before the
conquest, however, lands were devisable by will,
but the privilege was destroyed by the introduc-
tion of the military tenures.
By stataté 29 Car. II. ch.3. all devises of lands
and tenements shall not only be in writing, but
shall also be signed by the party so devising the
same, or by some other person in his presence,
and by his express direction; and shall be sub-
scribed in the presence of the person devising by
three or four credible witnesses, otherwise the
devise shall be entirely void, and the land shall
descend to the heir-at-law. A will, even if made
beyond sea, bequeathing land in England, must
be attested by three witnesses.
269
A will, however, devising copyhold land, does
not require to be witnessed; it is sufficient to
declare the uses of a surrender of such copyhold
land made to the use of the will. The party to
whom the land is given, becomes entitled to it by
means of the surrender, and not by the will. In
devising a copyhold, therefore, it is necessary to
surrender it to the use of one's last will and testa-
ment, and in the will to declare one's intentions,
and to name a devisee.
An executor is he to whom another man commits
by will the execution of his last will and testa-
ment. All persons are capable of being executors
who are capable of making wills, and many others
besides; as wives and infants, and even infants
unborn may be made executors. But no infant
can act as such before the age of seventeen years ;
till which time, administration must be granted to
some other person.
The appointment of an executor is essential to
the making of a will; and it may be done either
by express words, or such as strongly imply the
same. But if no executor be named, or if those
named refuse to act, the bishop must grant letters
of administration to some one else. In which
case, the duty of an administrator varies very
little from that of an executor.
If the deceased should die intestate, then gene-
ral letters of administration must be granted by
the bishop to such administrator as the statutes of
Edward III. and Henry VIII. direct. By these
270
acts, the bishop is compellable to grant adminis-
tration to the widow or next of kin. Amongst the
kindred, those are to be preferred who are nearest
in degree to the intestate. This nearness is to be
reckoned according to the coníputation of the
civilians, and not of the canonists. The half blood
is to be admitted to the administration as well as
the whole: If none of the kindred take out letters
of administration, a creditor may do it. If the
executor refuse, or die intestate; the administra-
tion may be granted to the residuary legatee, in
exclusion of the next of kin. And lastly, in defect
of all these, the bishop may grant administration
to whomsoever he will.
The duties of executors and administrators are
in general very much the same; excepting, first,
that the executor is bound to perform a will,
which an administrator is not. And secondly,
that an executor may do many acts before he
proves the will; whereas an administrator can do
nothing until letters of administration be issued.
The power and duty, however, of both, autho-
rize and require each to bury the deceased in a
manner suitable to the estate which he leaves
behind him. Necessary funeral expenses are al-
lowed previously to all other debts and charges.
The executor or the administrator must prove
the wiļl of the deceased. When the will is proved,
the original must be deposited in the bishop's
registry. A copy thereof upon parchment is made
puţ, under the seal of the bishop, and delivered
271
to the executor or administrator, together with a
certificate of its having been proved before him.
All which together is usually called the probate of
a will. In defect of any will, the person entitled to
be administrator, must also at this period take out
letters of administration, and enter into a bond,
with sureties, faithfully to execute his trust.
The executor or administrator must make an
inventory of all the goods and chattels of the
deceased, which he is to deliver in to the bishop,
upon- oath. He is to collect all the goods and
chattels so inventoried ; and to that end, he has
very large powers and interests conferred upon
him by law.
He must pay the debts of the deceased. In
doing this, he must observe the rules of priority;
otherwise, on deficiency, he must answer for it
out of his own estate. And first, he may pay all
funeral charges, and expenses of proving the will.
Secondly, debts due to the king on record or
speciality. Thirdly, money due for poor's rates,
for letters to the post-office, &c. Fourthly, debts
of record. Fifthly, debts due on special contract;
as for rent, bonds, covenants, and the like, under
seal. Lastly, debts on simple contracts.
When the debts are all discharged, the legacies
claim the next regard, which are to be paid as far
as the effects will extend.
A legacy is a bequest or gift of goods and
chattels by testament. The person to whom it is
given is styled a legatee; which every person
!
272
1
may be, unless particularly disabled by law, as
traitors and some others.
If a legatee die before the testator, the legacy is
lost or lapsed, and sinks into the residuum. And
if a contingent legacy be left to any one; as when
he attains, or if he attains the age of twenty-one,
and he die before that time, it is a lapsed legacy.
But a legacy to one, to be paid when he attains
the age of twenty-one years, is a vested legacy.
It is an interest which commences at present,
although it be paid hereafter; and if the legatee
die before that period, his representatives shall
receive it out of the testator's personal estate.
A donation, causa mortis, is when a person in
his last sickness, supposing his dissolution near,
delivers or causes to be delivered to another, the
possession of any personal goods, to keep, in case
of death; and to restore them to the owner, if he
should recover and live.
When all the debts and legacies of a person
deceased are discharged, the residuum, if any,
must be paid to the residuary legatee, if any be
appointed by the will. If there be no residuary
legatee, then the residuum must be divided
amongst the next of kin of the deceased, in cer-
tain proportions, according to their degree of
kindred. This division of the residuum must be
regulated by the statute of distributions 29 Car. II.
ch: 3. which expressly excepts and reserves the
custom of the city of London; of the province of
York, and all other places having peculiar usages
273
of distributing the effects of persons who die
intestate.
Such are the principal circumstances which re-
quire to be generally known with regard to last
wills and testaments. And whoever duly reflects
on the shortness and uncertainty of life, and is pro-
perly concerned for the comfort and harmony. of
those relatives and friends who may survive him,
will not delay to " set his house in order," by be-
queathing in a legal manner, an equitable distribu-
țion of his property.
CHAP. XXIII.
OF THE LIBERTY OF THE PRESS.
There is certainly a proneness in all men, to run
into extremes in debating any question of impor-
tance. It is natural that so glorious a subject as
the constitution and liberties of England, should
have been in every age the fruitful and delightful
topic of free discussion. Nor can it be wondered
at, that a matter so near the heart of every Briton,
should sometimes have roused the warmest feel-
ings of the mind, and hurried the disputants into
the most palpable inconsistencies. Thus whilst
many earnestly contend, that the British constitu-
tion was from the beginning a most glorious fabric,
and the wonder of the world; others as warmly
assert, that until the death of Charles I. it was a
274
system of the most wretched despotism. The
truth is, that some of our liberties are coeval with
the soil in which they have attained to such per-
fection; some have been planted in it by skilful
hands at different times, and been cultivated with
the greatest watchfulness and care; whilst others,
like seed newly sown, are just springing up, and
gradually unfolding their tender leaves.
Amongst the second class of our privileges
may be ranked the liberty of the press;
which is
now the birthright of every Briton, and justly
esteemed the firmest bulwark both of the liberties
and government of this country.
By the liberty of the press is meant, the right
which every subject of the British empire enjoys,
not only to petition the king and both houses of
parliament; but also to lay his opinions and com-
plaints before his fellow subjects, by means of an
open press. This privilege, certainly not as old
as our constitution, was obtained by the English
nation at a late period of its history, and was
the result of great struggle and exertion. Free-
dom was in many other respects confirmed; when
the liberty of the subject to express his sentiments
freely, either in writing or speaking, was shackled
with very considerable restraints.
The liberty allowed by the constitution, and the
discordancy of party, having created a propensity
in Englishmen for political conversation and writ-
ing, the conduct and measures of the king and
ministry began soon to be generally canvassed with
275
great freedom in every coffee-room and tap-hờuse
throughout the kingdom. But sò lately as the
year 1675, the coffee-houses being the scenes of
much seditious discourse, were suppressed by the
proclamation of king Charles II. The legality
of this proceeding, however, being doubted, the
proclamation, upon a petition of the coffee-men,
was recalled. And politics are now discussed in
all places of public resort with as much safety,
though not with equal wisdom, as in the senate.
Many of our chronologers who mention it, tell
us, that the art of printing was first practised in
England by a Mr. Caxton, in 1471, at Westmin-
ster, under the patronage of the abbot, Thomas
Milling, afterwards bishop of Hereford. Caxton,
indeed, long enjoyed the honour of introducing
this curious and useful art into England ; till a
book was discovered, after the restoration, with a
date of its impression from Oxford, anng 1468.
The appearance of this book, of course, transferred
all the glory from Caxton to the university of Ox-
ford, where it is said to have been introduced by
one Corsellis, a foreigner, in 1459. The learned
Dr. Conyers Middleton, however, is of opinion, that
there is sufficient evidence, that Caxton is intituled
to all the honour he at first possessed; and that
the pretensions of Oxford cannot be supported.
Be this as it may, it was more than two hundred
years after the art was known in England before
the liberty of the press was fully established
amongst us,
i
276
The severity of the court of star chamber was
very great against all who presumed to write on
political subjects. And a very effectual restraint
was put upon printing by that dreadful tribunal,
when it limited the number of printers and print-
ing presses, and appointed a licenser, without
whose approbation no book could be published.
Subsequently to the abolition of that court, the
long parliament, after their rupture with the king,
assumed the same power over the press ; which
was continued also during the whole of the protec-
torate. If a legal governor fear a free discussion
of his conduct; much more will an usurper dread
an enquiry, that may not only question the wis-
dom of his measures, but dispute his title to the
throne. The republican ordinances, with regard
to the press, were revived by an act two years
after the restoration ; and by a similar statute in
the reign of James II. These acts expired in 1692;
but were renewed for two years longer, although
posterior to the revolution. For even king Wil-
liam and his ministers did not conceive that by
the freedom of the press, the minds of men would
be so enlightened as to render it safe to trust then
with so great an indulgence. They saw nothing
like this species of liberty under any other govern-
ment, in any age of the world ; and therefore
doubted very much of its salutary effects. At
length, however, the parliament refused to grant
any further prohibitions ;. and all restraints upon
277
the liberty of the press were finally removed in
1694
But it is obvious that this liberty may be em-
ployed by wicked men, to the worst of purposes.
It may easily be made the vehicle of poisoning
the mind, and contaminating the public morals;
or rendered the sharpened instrument of private
revenge.
The same laws, therefore, which protect every
man's person and property, equally defend his
reputation from the malevolence of a writer; who
although too much of a coward to make an open
attack upon his neighbour's person, may cruelly
wound him through an anonymous publication,
“ The freedom of the press is secured by allow
ing every man to publish without the previous
" controul of a licenser, that which in his judg-
“ ment he shall think fit to communicate to the
public; but he does it at his peril, being respon-
“sible to individuals whom he may injure, or to
" the public whose peace he may disturb.
disturb. Sub-
ject to that responsibility, and to that risk,
every màn may publish what he pleases :-
" but if every one were to publish without the
“ fear of punishment what his malice might sug-
gest, or what his falsehood might direct to be
“said to the prejudice of another, no man would
“ have his good fame, the most estimable blessing
“ in life, in any degree of security."
66
* Lord Ellenborough, on the trial of Mr. John Gale Jones for
a libel against Lord Çastiereagh.
!
278
I
The publishers of libels and other criminal mat-
ters, are consequently liable to heavy punishments,
when found guilty,' by a jury of their equals.
The liberty of the press, then, consists simply in
this; that neither the courts of justice, nor any
other judges whatever, can lawfully take any notice
of writings intended for publication; but only of
those that are actually published ; and even in
these cases, they must proceed in the trial by jury.
On indictments for libels, that is, for satires, de-
famations, or lampoons, the province of the jury
is to determine on the point of law, as well as on
the matter of fact. In other words, to decide,
not only whether the writing in question has been
written by the person charged with having done it,
and whether it be really meant of the person
named in the indictment; but also whether the
contents be criminal or not.
The sending of an abusive private letter, is, in
the eye of the law, as much a libel as if it were
openly printed ;' because such a communication
has a direct tendency to disturb the public peace.
And it may be remarked generally with regard to
criminal prosecutions for libels, that it is of no
importance whether the matter of them be true or
false, since the guilt of the libeller consists in the
provoking of another to break the public peace;
and it is obvious, that this may often be as easily
done by publishing a truth as a falsehood. Indeed
it is this very circumstance that constitutes a pub-
lication even of facts respecting foreign govern-
279
+
66 that
ments and magistrates, a libel. For two nations
at peace with each other, may readily be provoked
to actual hostilities by the inconsiderate conduct
of individuals, who by their publications choose to
vilify foreign powers. Hence it has recently been
laid down as law by the highest authority,
any publication which tends to degrade, revile,
“ and defame persons in considerable situations of
power and dignity in foreign countries, may be
taken to be and treated as a libel; and par-
ticularly where it has a tendency to interrupt
“the amity and peace between the two countries."*
The advantages of a well-regulated free press
are very great. The daily intelligence which is
communicated through it to every town and village
in the kingdom, puts the inhabitants in possession
of the measures of government, the speeches of
senators, the charges of judges, and the verdicts
of juries. “ The publishing of the proceedings of
“ courts answers most salutary purposes, and if
judges act wrong their proceedings ought to be
published. If the press were to be gagged, no
man can tell where it would end." By means
of it, the whole island is at once made acquainted
with every circumstance that may endanger any of
its privileges ; and such a co-operation may be sud-
denly formed in bringing forward the legal means
ܪ
* See lord Ellenborough's perspicuous summing up on the trial
of John Peltier, esq. for a libel against Napoleon Buonaparté.
+ Lord chancellor Manners.
)
280
of redress, that it must at all times be extremely
difficult, as well as hazardous, for public inen to
violate the fixed principles of the constitution.
Hence, every man entrusted with official employ-
ment, from the minister of state down to the
chairman of the quarter sessions, or the chief
magistrate of a corporation; from the commander
in chief down to the non-commissioned officer ;
from the first lord of the admiralty down to the
master's mate, feels himself compelled to choose
between the satisfaction resulting from a conscien-
tious discharge of his duty, and the disgrace and
ruin which must almost inevitably follow a wilful
neglect of it.
The liberty of the press is exceedingly condu-
cive to the diffusion of general knowledge. Every
kind of truth is hereby greatly promoted. Nothing
is lost by free investigation ; on the contrary,
that which is valuable is made more conspicuous
and attracting by candid discussion. Truth, like
hardened steel, is inflexible; and the more it is
rubbed, the brighter polish it receives.
But the dissemination of divine truth is of all
others the most important advantage of a free
press. We who have bibles in such abundance,
can forın no adequate conception of the eagerness
with which our forefathers endeavoured to obtain
even scraps of an English translation of the Scrip-
tures; when a whole copy of them could not be
procured or possessed with safety by the laity.
In the 33d year of Henry VIII. when a new
281
impression of the English bible was finished, the
king; by proclamation,“ required all curates and
parishioners of every town and parish to provide
“ themselves a copy of it.” At first, the bible was
chained to one of the pillars in the church, where
the people resorted in crowds to hear it. He who
was able, read aloud, whilst the multitude hung
upon his lips, and their ears drank in with avidity
the word of life.* How many at the last day will
ascribe their salvation to the reading of the scrip-
tures in their own tongue, can be known only to
their divine author. However, few perhaps will
deny the probability, that a free press will continue
to be one of the grand instruments which Divine
Providence will employ in spreading the truths of
revelation amongst “every kindred, and tongue,
“ and people, and nation;" till “ the earth be filled
“ with the knowledge of the glory of the Lord,
as the waters cover the sea.'
· But this palladium of our civil and religious
liberties may be shamefully abused to the base
purpose of promoting licentiousness, obscenity,
and blasphemy. The press, therefore, is to be
watched, lest men, in proposing their opinions to
the public, should obtrude such as are inconsistent
with good government and the interests of religion.
Indeed, the state which does not seasonably check
the licentiousness of the press, would afford an op-
portunity to libellists to endanger the public tran-
* See Burnett's History of the Reformation, vol, 1. b. 3.
T!
282
quility. But whilst the propriety of this vigilance
is acknowledged, we have reason to rejoice, that
the censorship is removed from the arbitrary "court
" of star chamber," and placed in the hands of
twelve of our equals.
The liberty of the press is a privilege justly dear
to every Englisman; and ought to be the more
highly prized by him, as he enjoys that which na
other government in Europe tolerates. *
“ How shall I speak thee, or thy pow'r address,
“ Thou god of our idolatry—the press ?
“By thee, religion, liberty and laws,
• Exert their influence, and advance their cause ;
* By thec, worse plagues than Pharaoh's land befel
“ Diffus'd, make earth the vestibule of hell:
“ Thou fountain, at which drink the good and wise,
“ Thou ever-bubbling spring of endless lies,
“ Like Eden's dread probationary tree,
" Knowledge of good and evil is from thee.”+
No tyrannical government, indeed, could possibly
long continue with a free press; and therefore,
the very existence of this privilege amongst us is
a proof of the strength and stability of the British
executive power ; which is found by experience,
to admit of that extensive freedom both of writing
and speaking on political as well as on all other
subjects, which Englishmen enjoy. The law,
however, will punish all who are convicted of
* See Mr. Mackintosh's splendid defence of John Peltier, 664
+ Cowper's Progress of Error.
283
libelling any part of the constitution; which,
indeed, is founded upon principles so wise and
just, that the government has none but a salutary
dread of the free discussion of all its measures.
This important and unrivalled privilege of the
British press is not the effect of any statute enact-
ing it, but arises rather from the absence of all
law, prohibiting it; and may in fact be very fitly
considered as a part of the common law of the
land.
CHAP. XXIV.
OF COURTS IN GENERAL.
VARIOUS are the wrongs and injuries that men
commit upon each other, even in civilized states;
and these would doubtless be still more numerous
were it not for the salutary restraint of human
laws. Such wrongs and injuries are either of a
civil or of a criminal nature.
Under the former description may be reckoned
every species of trespass, nuisance, waste, subtrac-
tion, or disturbance. And likewise, all kinds of
injuries proceeding from or affecting the crown.
Under the latter are comprised all offences
against God and religion; against the law of na-
tions; against public justice; against the public
peace; against public trade; against the public
T2
}
284
health and economy; against the persons, habita
tions, and property of individuals. Our limits
will not, however, admit of treating specifically
of these several denominations of civil and crimi-
nal offences. But this is the less necessary, inas-
much as every description and modification of
offence is a breach of one or other of the ten com-
mandments; which teach us two things, our duty
towards God and our duty towards our neigh-
bour. Happily, therefore, we have no need of
referring to law books to ascertain how we ought
to act one towards another; for the work of the
law is written in every man's heart, his conscience
also bearing him witness. And if any man will
but do unto others upon all occasions, as he would
they should do unto him under similar circum-
stances, he will never suffer any thing from the
laws of England; which are constantly stretched
forth to protect him. It is sufficient, then, to re-
mark, generally, that “ the law is not made for a
righteous man, but for the lawless and disobe-
dient;" that is, only such are amenable to its
tribunals and liable to its penalties.
" It must needs be that offences will come."
There will always be the offenders and the offend-
but it is the voice of reason, that no man
ought to decide on his own cause; and it is the
language of the inspired volume, that“ if one man
"s sin against another the judge shall judge him.”
Every well-regulated government, therefore, has
its courts in which persons duly qualified and
ed ;
285
authorized preside for the administration of jus-
tice. The institution is of divine appointment;
and its end is, that the people may be judged with
just judgment.*
It will be proper, then to describe the nature of
courts in general, with their various proceedings
in administering justice, both between the king
and subject, and between one subject and another.
A court is defined, to be "a place where justice
“is judicially administered.” The sole execution
of the laws being vésted by our constitution in the
king, it follows that all courts of justice within
this realm originate only from his Majesty ; his
consent to their existence being at all times either
expressed or implied. The law always contem-
plates the king as present in his courts, although,
in fact, he is only represented there by his judges.
Courts are distinguished into courts of record,
and courts not of record.
A court of record is that where the acts and
judicial proceedings are enrolled in parchment, for
a perpetual memorial and testimony. These rolls
are called the records of the court. All courts of
record are the king's courts, and no other court
has any authority to fine and imprison.
A court not of record, is that of a private man,
whom the law will not intrust with any discretion-
ary power over the fortune and liberty of his fellow
subjects. Such are the courts-baron in every
Deut. ch. xvi. ver. 1$.
286
.
manor, and other inferior jurisdictions, where the
proceedings are not enrolled or recorded.
In every court there must be at least three par-
ties. The plaintiff, who complains of an injury
done; the defendant, who is called upon to make
satisfaction for it; and the judicial power, which
is to examine into the fact, determine the law
arising upon it, to ascertain whether any injury
have been done, and by its officers to apply the
remedy.
The usual assistants in the higher courts are
attornies and advocates or counsel.
An attorney ut law is one who is put in the
place, stead, or turn of another, to manage his
matters of law for him. Formerly every suitor
was obliged to appear in person to prosecute or
defend his own cause, which is still the law in
criminal cases.
An idiot cannot appear by his
attorney, because he has not discretion to enable
him to appoint a suitable person in his stead. He
must therefore appear in person, and the judge is
bound to take care of his interest, and admit the
best plea in his behalf, that any one in court can
suggest.
No person can practice as an attorney in any
court but in that of which he is sworn an attorney;
and as he enjoys many privileges in that court, so
he is also peculiarly subject to the censure and ani-
madversion of its judges, To enable an attorney
to practice in the court of chancery, it is necessary
that he be admitted a solicitor therein. And none
287
ܪ
can act as attorniés at the quarter sessions, but
such as have been regularly admitted into some
superior court of record : and attornies are sub-
jected to various other regulations, by different
statutes.
Advocates, or as they are commonly called, coun-.
sel, are of two degrees, barristers and serjeants.
The former are admitted, after a considerable
period of study and standing; in the inns of court;
and are in all the old law books styled apprentices,
being looked upon merely as learners ; and not
qualified to execute the full office of an advocate
till they were of sixteen years standing. At which
time they may be called to the honourable státe
and degree of serjeants.
Serjeants at law are bound by a solemn oath to
do their duty to their clients.
His Majesty's two principal counsel are the attor-
ney general and solicitor general, who may be
either barristers or serjeants. The king's counsel
cannot be employed in any cause against the
crown, without special license; hence, they can-
not publicly plead in court for a prisoner, or a
defendant in a criminal prosecution, without
license, which is never refused. But in obtaining
it an expense of about £9. is incurred. *
Counsel are indulged with liberty of speech in
defence of their clients; and are not answerable
for any matter spoken by them relative to the
i
* Professor Christian.
t
288
cause in hand, and suggested in their clients in-
structions, although it should prove a groundless
reflection on the reputation of another. But if they
mention an untruth of their own invention, the
party injured may bring his action,
By the statute of 3 Edward I. ch. 28, counsel
may be punished for collusion and deceit, with im-
prisonment for a year and a day, and perpetual
silence in the courts. But to the honour of our
courts, the corruption of judges and the treachery
of counsel are crimes now unheard of in this coun-
try. Indeed the wisdom and integrity of the Bri-
tish courts are justly proverbial; and never shone
with more resplendent lustre than during the prer
sent reign.
CHAP. XXV.
1
OF THE COURTS OF COMMON LAW AND EQUITY.
The several courts of justice acknowledged in
this country, are either such as have general
jurisdiction throughout the whole realm, or pri-
vate and special jurisdiction only in particular
places.
Of the former, there are the universally estab-
lished courts of common law and equity, the
ecclesiastical courts, the courts military, and
courts maritime.
289
The lowest court of justice knowų in England,
is the court of piepoudre; so called, according to
Sir Edward Coke, because justice is administered
as soon as dust can fall from the foot. It is a
court of record incident to every fair and market;
of which the steward of him who owns or has the
toll of the market is the judge.
The jurisdiction of this court takes cognizance
of all matters of contract that can possibly arise
within the precinct of that fair or market; and the
plaintiff must make oath that the cause of the
action arose there. This court seems to have
been instituted to do justice expeditiously among
the variety of persons who resort to a market or
fair from distant parts. A writ of error, however,
lies in the nature of an appeal from this court to
the courts at Westminster.
A court baron is a court incident to every manor
in the kingdom, to be holden by the steward
within the said manor. Its nature is two-fold: it
is either a customary court, appertaining entirely
to the copyholders, in which their estates are
transferred by surrender and admittance; or it is a
courtof common law, called the court of the barons,
or the freeholders' court, being composed of the
lord's tenants, who were equals of each other, and
were bound by their feudal tenure to assist their
lord in administering domestic justice.
But its most important business is to determine
by writ of right, all controversies relating to the
right of lands within the manor; and to hold plea
1
1
$
290
of any personal actions of debt, of trespass on the
case, &c. where the damages do not amount to
forty shillings. It is not a court of record, but a
writ of false judgment and not a writ of error, lies
to the court of Westminster to rehear the case.
A hundred court is only, a larger court baron,
being held for all the inhabitants of a particular
hundred instead of a manor. It resembles a court
baron in all respects, except that it has jurisdic-
tion over a larger extent of territory
A county court is incident to the jurisdiction of
the high sheriff. It is not a court of record, but
may hold pleas for damages under the value of
forty shillings. The real judges of this court are
the freeholders of the county; and the sheriff is
the ministerial officer. But the proceedings are
removable from hence into the king's superior
courts.
The court of common pleas, styled by Sir Ed-
ward Coke the lock and key of the common law,
is a court of record. It was originally held in the
king's own hall (aula regis,) and followed him
whithersoever he went. But it was fixed by the
great charter, that it should in future be always
held at Westminster-hall, for the convenience of
the subject; which it has been ever since.
By the term “common pleas,” are meant all civil
actions between man and man, as distinct from
the "pleas of the crown;" which term compre-
hends all crimes and misdemeanors. In this court
of common pleas there are one chief and three
291
puisne jadges, created by the king's letters patent,
who sit every day in the four terms to hear and
determine all matters of law rising in civil causes.
But a writ of error lies. in nature of appeal from
this court into the court of king's bench.
The court of king's bench is the supreme court
of common law, in the kingdom; and has its name
from the custom of the king formerly sitting there
in person. This court also has one chief and
three puisne judges, who are by their office the
sovereign conservators of the peace and supreme
„£oroners of the land. For some centuries past,
this.court has usually been held at Westininster,
an ancient palace of the crown; but might remove
with the king to any other part of the kingdom, if
he thought proper to command it.
The jurisdiction of the court of king's bench is
very high and transcendent. It keeps all inferior
courts within their due bounds. It superintends all
civil corporations in the kingdom. It commands
magistrates and others to do their duty in every
case where there is no other specific remedy. Its
authority is not confined to civil, but it takes
cognizance also of criminal causes. The foriner is
what is called the crown side or crown office; the
latter is the plea side of the court.
This is a court of appeal, and into it may be
removed, by writ of error, all determinations of
the court of common pleas, and of the inferior
courts; and even of the court of king's bench in
Ireland. But from it also an appeal lies to the
292
1
house of lords, or to the court of exchequer
chamber.
In the reign of a queen, it is called the queen's
bench; and during the protectorate of Cromwell, ,
it was termed the upper bench.
The court of exchequer is a very ancient court
of record, and a court of law and equity also. It
is inferior in rank both to the court of king's bench
and of the common pleas. It was set up by king
William I. as a part of his “aula regia," although
brought to its present state and order by king
Edward I. It is designed, principally, to order
the revenues of the crown, and to recover the
king's debts and duties. It has the name of
exchequer from the chequered cloth, resembling
a chess-board, which covers the table there; and
upon which, when certain of the king's accounts
are made up, the sums are marked, and scored
with counters.
This court consists of two divisions; the re-
ceipt of the exchequer, which manages the royal
revenue; and the court, or judicial part of it,
which is again subdivided into a court of equity
and a court of common law.
The court of equity is held in the exchequer
chamber, before the lord treasurer, the chancellor
of the exchequer, the chief baron, and three
puisne barons. Its original business is to call the
king's debtors to account, by bill filed by the
attorney general; and to recover lands, tenements,
or any goods, chattels, &c. belonging to the crown.
298
а.
The common law part of this jurisdiction,
originates in a fiction in law. The writ upon
which all proceedings here are grounded is called
quo minus;" in which the plaintiff suggests,
that he is the king's farmer or debtor, and that the
defendant hath done him an injury or damage
complained of; “ quo minus sufficiens existit;" by
which he is the less able to pay the king his debt
or rent. So that now, any person, as well the
*king's debtors, may sue and be sued in this court.
The same privilege holds with regard to the equity
side of the court; as any one may file a bill against
another upon the bare suggestion that he is the
king's accomptant; which is never controverted,
On the equity side of this court, the clergy have
long used to exhibit their complaints for the non-
payment of their tithes, although the chancery has
of late years had a large share of this business.
From the equity side of this court, appeals lie
immediately to the house of peers: but from the
common law side, a writ of error must be brought
into the court of exchequer chamber; and from
their determination, a writ of error will lie to the
house of lords, by statute 31 Edward III. ch. 12.
These three last mentioned courts were formerly
parts of the aula regia, a court which William the
Conqueror established, when he arrogated to
himself the whole judicial power. This formid-
able tribunal, which received appeals from all
the courts of the barons, and decided in the last
resort on the estates, honour, and lives of the
294
barons themselves, kept the first nobleman in the
kingdom under the same controul as the meanest
subject.
The high court of chancery is the most impor-
tant of all the king's civil courts of justice. It has
its name from the judge presiding in it, who is
styled the lord chancellor. His name is derived
from a latin word, signifying cancelling the king's
letters patent when granted contrary to law, which
is the highest point of his jurisdiction.
The lord chancellor is appointed merely by the
delivery of the king's great seal into his custody;
whereby he becomes an officer of the greatest-
weight and power of any in the kingdom, and
takes precedency of every temporal lord.
By his office, the chancellor becomes a privy
counsellor, and speaker of the house of lords.
To him belongs the appointment of all justices of
the peace throughout the kingdom; and he is
patron of all the king's livings under the yearly
value of £20, in the king's books. He is also
the general guardian of all infants, idiots, and
lunatics; and has the superintendance of all cha-
ritable uses in the kingdom.
The celebrated Sir Thomas More was the first
layman who was appointed lord chancellor. In
1530, he obtained the great seal; which had pre-
viously always been given to the clergy, who
monopolized nearly the whole learning of the
times, and were supposed to be the best judges
of matters of conscience.
295
There are two tribunals in the court of chancery;
the one ordinary, which is a court of law; the
other extraordinary, being a court of equity.
The jurisdiction of the ordinary court is to hold
plea, upon a scire facias, to repeal and cancel the
king's letters patent, when made against law, or
upon untrue suggestions; and to hold plea of
petitions when the king has been advised to do
any act in prejudice of the subject's right. In
this court also are held pleas of personal actions,
where any officer or minister of the court is a party.
When judgment is given in chancery, upon
demurrer, or the like, a writ of error lies into the
court of king's bench.
In this ordinary legal court is kept the officina
justitiæ ; out of which, all original writs that pass
under the great seal, all commissions of charitable
uses, sewers, bankruptcies, idiocy, lunacy, &c.
&c. do issue. Formerly, all writs relating to the
subject, and the returns to them, were kept in a
hamper, in hanaperio; and others belonging to the
crown, in a little bag, in parva baga; and hence,
the distinction of the hanaper office, and petty-bag
office, in the court of chancery.
The jurisdiction of the extraordinary court, or
court of equity, enables the chancellor to mode-
rate and temper the written law; and in his
decisions, he subjects himself only to the law of
nature and conscience. From the equity court in
chancery, an appeal lies immediately to the house
of peers.
296
There is a great difference between appeals
from a court of equity, and writs of error from a
court of law. In the first place, the former may
be brought upon any interlocutory matter; the
latter upon only a definitive judgment. And se-
condly, on writs of error the house of lords pro-
nounces the judgment; on appeals it gives direction
to the court below to rectify its owu decree.
The court of exchequer chamber has no original
jurisdiction, but is only a court of appeal to
correct the errors of other courts, Into it, causes
.
are sometimes adjourned for the consideration of
the judges, before judgment is given in the courts
below. The judges in this court are all the judges
of the superior court, and sometimes also the
lord chancellor,
The supreme court of judicature in the kingdom,
is the house of peers, which is in all causes the
last resort; and from its decision there can be no
farther appeal. But every subordinate jurisdic-
tion must submit to its judgments. The house of
lords became the supreme court of appeal from
all inferior courts, on the abolition of the aula
regia.
The courts of assize and nisi prius are courts of
general jurisdiction and use; and are derived out
of, and act as auxiliaries to, the foregoing courts
that have been mentioned. These courts are
composed of two or three commissioners, who are
twice every year sent by the king's special com-
mission all round the kingdom, to try, by a jury.
297
of the respective counties, the truth of such mat-
ters as are then under dispute in the courts of
Westminster-hall.
In the four northern counties the assizes are
taken only once a year; but in London and Mid-
dlesex, courts of nisi prius, there called sittings,
are holden in and after every term, before the
chief or other judge of the several superior courts.
These commissioners seem to have come into
use in the room of the justices in eyre, or itinerant
justices; who were regularly delegated by Henry
II. to go round the kingdom once in seven years
to try causes ; and, by magna charta, were
directed to make a circuit once in every year into
every county.
The commissioners of assize and nisi prius must
be two of the king's justices, of the one bench
or the other, or the king's serjeants sworn. Their
circuits are usually made in the respective vaca-
tions after hilary and trinity terms. But such is
the jealousy of the law, that it is enacted by sta-
tute 33 Henry VIII. that no lawyer shall be a
judge of assize in his native county ; yet in the
criminal courts he may execute his office as a com-
missioner of oyer and terminer, and of gaol delivery,
within the county where he was born or resides.
The authorities, by virtue of which the judges
sit upon their circuits, are five; (viz.) the commis-
sion of the peace; a commission of oyer and termi-
ner; a commission of general gael delivery; a
U ए
298
commission of assize; and the authority of niso
prius, which is a consequence of the commission
of assize. But the business at the county assizes
is generally divided, in popular language, into
that of the crown bar and the nisi prius bar. At
the former, all criminal prisoners are arraigned;
and at the latter, the civil causes are tried. All
causes commencing in the courts of Westminster-
hall are appointed to be tried there by a jury re-
turned from the county wherein the cause of action
arises; but with this proviso, “ nisi prius justici-
“ arii ad assisas 'capiendas venerint,” unless before
the day prefixed, the judges of assize should come
into the said county and hold an assize. This
they are sure to do, and there dispose of the cause;
which saves much trouble and expense to all the
parties concerned.
Such are the several courts of law and equity
of general jurisdiction throughout the kingdom;
which originated and were perfected by the united
wisdom of our ancient kings Alfred and Edward I.
The policy of the great Alfred was, to bring jus-
tice home to every man's door, whereby cheapness
and dispatch were insured to him. Length of
time has indeed obscured some of the fainter lines
of the incomparable judicial institutions of these
great princes, but the spirit and form of them are
still attended to; so that the most impartial jus-
tice is administered to every individual, whatever
his rank may be. But should any one be dissatis-
fied with the determinations of these courts, he can
299
,
appeal to the house of lords, in the last resort,
whose judgment must be final. This court being
composed of learned and pious bishops and of
noble peers, whose rank and education, whose
honour and conscience, whose interest and repu-
tation, all combine to constitute it as perfect a seat
of justice as can be looked for in this world; it is
highly reasonable as well as expedient, that from
its solemn decision there should be no appeal.
But besides these general courts, there are many
others of a more limited jurisdiction, pertaining to
In the time of our Saxon ancestors, the rights
of the church and of the laity were determined at
the same time, and by the same judges; there
being no distinction between the lay and ecclesi-
astical jurisdictions. The bishop of the diocese,
and the earl or alderman, or in his absence the
high sheriff, used to sit together in the county
court. In ecclesiastical matters, indeed, a defer.
ence was paid to the superior opinion of the
bishop; and to that of the sheriff in temporal
decisions.
After the Norman conquest, however, king Wil-
liam was prevailed upon by the clergy to sanction
the separation of the ecclesiastical from the tem-
poral court. He prohibited, by his charter, any
spiritual cause from being tried in the secular
courts; and commanded the suitors to appear
before the bishop alone, who was to adhere to the
2
* 2
300
canon law as the rule of his judicial conduct. But
the union of these courts was restored at the acces-
sion of king Henry I.
The popish clergy were highly displeased at this
change; and ordained in their synod at Westmin-
ster, 3 Henry I. that no bishop should attend the
discussion of temporal causes, which soon dissolved
the union. When Stephen usurped the throne,
the clergy exacted from him an oath, that the
bishops should have the sole jurisdiction of all
ecclesiastical persons and causes.
Amongst the various ecclesiastical courts, are
the archdeacon's court, the consistory court, the
court of arches, annexed to which is the court of
peculiars. There are likewise the prerogatire
court, for the trial of all testamentary causes where
the deceased has left bona notabilia within two
different dioceses; and the court of delegates,
appointed by the king's commission to represent
his royal person and hear all appeals made by
virtue of statute 24 Henry VIII. ch. 12. None of
these ecclesiastical courts, however, are courts of
record.
The only military court known to the laws of
England, is the court chivalry, now fallen into
disuse.
The maritime courts, or such as have jurisdic-
tion to determine all injuries committed upon the
high seas, are the court of admiralty and its courts
of appeal.
301
There are likewise courts whose jurisdiction is
confined to particular places and districts. Such
are the forest courts, instituted for the government
of the king's forests in different parts of the king-
dom. The court of commissioners of sewers, whose
authority is to overlook the repairs of sea banks,
sea walls, &c. &c. The court of policies of
insurance; the palace court, which, with the an-
cient court of marshalsea, is now holden in the
borough of Southwark, once a week, to determine
all personal actions that shall arise within twelve
miles of his Majesty's palace of Whitehall. Be-
sides these, are the several local courts of the
principality of Wales; of the duchy of Lancaster ;
of the counties palatine of Chester, Lancaster, and
Durham; and of the royal franchise of Ely. In
all which places the judges sit by virtue of a
special commission from the owners of the fran-
chise, and not under the great seal of England:
There are likewise the courts of the cinque ports;
the stannary courts, in Corņwall and Devonshire;
the courts of London, and other corporate towns';
all which originated in the special favour of the
king to the respective districts.
Again, there are the courts of conscience, estab-
lished by statute in different parts of the king-
dom, to determine in a summary way all causes
of debt not exceeding £5. and in most places
not above 40s.
Lastly, there are the chancellor's courts, in the
two universities of O.xford and Cambridge, to
1
302
determine all civil actions where a scholar or pri-
vileged person is one of the parties, except in
cases where a right of freehold is concerned. This
privilege was granted first to Oxford by Henry III.
A. D. 1244. In the third year of Elizabeth a
similar distinction was bestowed upon the univer-
sity of Cambridge, and by statute 13 Elizabeth,
ch. 29, all the charters of both universities were
confirmed.
CHAP. XXVI.
OF TRIAL IN CIVIL ACTIONS.
A BRIEF sketch of the different courts having
been given, it will be proper to take a succinct
view of the methods of proceeding therein, both in
civil actions and in criminal cases.
In doing
this, however, the following observations will be
restricted to the forms observed in the courts of
general jurisdiction ; for if there be any peculiari-
ties in conducting the business in the inferior courts,
they are of a local nature, and consequently of
little importance to the public. But in general,
trials are conducted much the same in the lower
courts, as before the superior tribunals.
The beginning, then, of a civil suit, is the
original writ. When a person has received an
injury, and is determined upon seeking the remedy
S03
provided by law, he sues out from the court of
chancery an original, or the writ which is appli-
cable to his particular case. This is directed to
the sheriff, requiring him to command the offender
to do justice to the party aggrieved, or to appear
in court to answer the accusation against him.
The sheriff is bound to make a return of the writ,
and this should be done on the first day of the
term following; but as the law allows the defen-
dant three days grace for his appearance, the court
does not usually sit for despatch of business till
the fourth, or appearance day. The means of
compelling the defendant to appear in court is
called the process, of which the primary step is,
the giving of the party notice, by summons, to
obey the original writ. If the defendant disregard
this warning, a pore is issued out, or writ of
attachment, so called from the words of the writ,
pone per vadium et salvos plegios," put by gage
and safe pledges, A. B. the defendant, &c. If
after attachment he neglect to appear, he is farther
compelled by writ of distringas, commanding the
sheriff to distrain the defendant of his goods if he
do not appear. And if he have no goods, then a
writ of cupias is issued, empowering the sheriff to
take the defendant's body, and bring him into
court on the day of the return to answer the plain-
tiff of his plea. If after repeated writs of capias
and proclamation made, the defendant do not
appear and cannot be found, an outlawry takes
place. Such outlawry is putting a man out of
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the protection of the law, and is attended with
forfeiture of all his goods and chattels to the king.
But the common practice is to issue the writ of
capias in the first instance; and the sheriff can
only serve the defendant with a copy of the writ
and a written notice to appear by his attorney in
court to defend the action. But if the plaintiff
make affidavit that the cause of action amounts
to £10, and upwards, then he may arrest the
defendant. An arrest must be by corporal seizing
or touching the defendant's body; the bailiff can-
not enter his house by violence, but must watch
his opportunity to take him. When the defendant
is regularly arrested he must either go to prison
for safe custody, or put in bail to the sheriff, as
security for his appearance. This appearance is
effected by putting in bail to the action. These
bail, who must be at least two in number, must
enter into a recognizance in a sum equal, or some-
times double, to that which the plaintiff has sworn
to; whereby they undertake, that if the defendant
be condemned in the action, he shall pay the costs
and condemnation, or render himself a prisoner,
or that they will pay it for him. Such then is the
process or mode which the law appoints for bringing
the defendant into court to try the suit and abide
the issue.
After process follow the pleadings; that is,
the plaintiff states a declaration of his casc; to
which the clefendant must in a reasonable time
make his defence, or put in a plea, otherwise the
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plaintiff will at once recover judgment by default;
unless he and the plaintiff can agree to make up
the matter:
Pleas are of two sorts; dilatory pleas, and pleas
to the actiou.
The fourth stage of an action is the issue, which
is the end of all the pleadings; and is either upon
matter of luw or matter of fact. The former is
called a demurrer; which confesses the facts to be
true, but denies that any injury is thereby done to
the plaintiff. The latter, or an issue of fact, is
where the fact only is disputed. When he who
denies the fact has tendered the issue, both parties
are said to join issue, having agreed to rest the
fate of the cause upon the decision of a jury of the
country; and this brings usto the trial in open court.
A trial, then, or probation, is the mode which
the law of the land has settled for a criterion of
truth and falsehood.
In civil cases the law acknowledges seven spe-
cies of trials; (viz.) by record; by inspection; by
certificate ; by witnesses; by wager of battle; by
wager of law; and by jury. .
A trial by record is where a matter of record is
pleaded in any action ; and the defendant pleads
that there is no such record existing. Upon this,
issue is joined, and the plaintiff is allowed time to
produce the said record, and on his failure the
defendant shall have judgment to recover.
The cases usually tried by record, are titles of
nobility. Thus, whether such a one be earl or no
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earl, whether baron or no baron, shall be tried by
the king's patent only, which is matter of record.
The trial by inspection is when the point or issue
is the object of sense; so that the judges upon the
testimony of their own senses may decide the
question. As in cases of nonage, idiotism, and
the like.
So, also, the issue respecting any circumstances
relative to a particular day past, may be tried by
inspection of the almanack by the court. Thus,
an appeal upon a writ of error was once made from
an inferior court, at Lynn Regis, assigning the
error to be, that the judgment was given on a
Sunday, it appearing to have been on the 26th of
February, in the 26th of Elizabeth. Upon inspect-
ing the almanacks of that year, the fact was found to
and the judgment was reversed accordingly.
The trial by certificate is allowed in such cases
where the evidences of the person certifying is the
only proper criterion of the point in dispute. As,
if A. B. assert that he was at Jamaica at such a
time, the court, may determine the fact upon a
certificate under the hand and seal of the governor
of that island,
The trial by witnesses, without the intervention
of a jury, is the only method of trial known to the
çivil law: in which the judge is left to form in his
own breast his sentence, upon the credit of the
witnesses examined. But it is very rarely used in
our law, which prefers the trial by jury before it
in almost all cases.
be so;
807
The trial by wager of battle, and the trial by
wager of law, are both now quite out of use, and
therefore need only to be mentioned.
But the principal criterion of truth known to
the law of England, is the trial by jury. The trial
per pais, or by the country. A mode of trial which
seems to have been coeval with the first civil
government of this happy country. -As a better
opportunity will offer hereafter of treating more
largely of juries, it is now only observed, that in
civil cases there are two kinds of juries, special
and common.
When the plaintiff intends to try his cause, he
is obliged to give the defendant fourteen days
notice, if the trial is to be at the sittings in
London and Westminster; but if at the courts in
the country, ten days notice is sufficient, The
defendant, however, or plaintiff
, may, upon good
cause shewn to the court, obtain leave to defer the
trial till the next assizes. But if the cause be
called on in court for trial, then the record is
handed to the judge, while the jury is called and
sworn, to observe what issues the parties are to
maintain and prove to the satisfaction of the jury.
Special juries were originally introduced in trials
at bar, when the causes were of too great nicetý
for the discussion of ordinary freeholders ; or
where the sheriff may be suspected of partiality in
returning his jurors.
In forming a special jury, the sheriff, upon
motion in court and a rule granted thereupon, is:
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to attend the proper officer with his freeholders
book; and the officer is to take indiscriminately
forty-eight of the principal freeholders, in the
presence of the attornies on both sides; who are
each of them to strike off twelve, and the remaining
twenty-four are returned upon the panel, or small
piece of parchment.
A common jury is one that is returned by the
sheriff, according to the directions of the statute
of 3 Geo. II. ch. 25; which directs, that the
sheriff shall return one and the same: panel fox
every cause to be tried at the same assizes,,con-
taining not less than forty-eight nor more than
seventy-two jurors; and that their names being
written on tickets, shall be put into a box or glass,
and when each is called, twelve of these persons
whose names shall be first drawn out of the box
shall be sworn on the jury, unless absent, chal-
lenged, or excused; or unless a previous view of
the lands, or place, &c. in question, shall have
been thought necessary by the court.
If the court should think such a view necessary,
then six or more of the jurors returned, to be
agreed on by the parties, shall be appointed by
special writ, to have the matter in dispute shewn
to them, hy two persons named in the writ; and
then such of the jury as have had the view, or so
many of them as appear, shall be sworn on the
inquest previously to any other jurors. But the
jurors may be challenged by either party.
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Challenges are of two kinds ; challenges to the
array, and challenges to the poll. The former is
an exception to the whole panel in which the jury
are arranged or set in order by the sheriff, in his
return. This challenge may be made upon account
of partiality or some default of the sheriff; or
when there is reasonable ground to suspect his
integrity. The latter are exceptions to particular
persons, and may be made for four different reasons.
On account of honour; as if a lord of parliament
be impapelled upon a jury, he may be challenged
by either party, or he may challenge himself. On
account of defect; as if a juror be an alien born;
or if he have not a sufficiency of estate to qualify
him ; that is, unless he be a freeholder or a copy- .
holder of £10. a year in England, or £6. in Wales,
or a leaseholder for the term of 500 years absolute,
or for any term determinable upon life or lives, of
the clear yearly value of £20. a year, over and
above the rent reserved. On account of suspicion
of partiality; and this may be either a principal
challenge, or to the favour. The former is where
the cause assigned carries with it prima facie,
evident marks of suspicion; as where the juror is
of kin to either party, within the ninth degree; or
where he is otherways interested in the decision.
The latter is where the party has no principal
challenge, but objects only some probable circum-
stance of suspicion, as acquaintance and the like.
Lastly, a' challenge may be on account of some
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crime that affects the juror's credit, and makes him
infamous.
But it is possible that, from unavoidable causes,
a sufficient number of unexceptionable jurors may
not appear at the trial.
In that case either party
may pray a tales ; i. e. a supply of such men as
are summoned upon the first panel, in order to
make up the deficiency.
the deficiency. And the judge has
to award a tales of persons present in court. These,
however, are liable to the same challenges as the
principal jurors till the legal number of twelve be
completed.
These twelve men are called the jury (jurata),
because they are now separately sworn, well and
truly to try the issue between the parties, and a
true verdict to give, according to the evidence.
The pleadings are now opened to the jury by
the counsel on that side which holds the affirnia-
tive of the question in issue. The evidence is then
gone through in support of the case,
The counsel on the other side next opens the
adverse case, and likewise supports it by evidence;
after which, the party which began is heard in
reply.
Evidence, is that which makes clear or ascertains
the truth of the very fact or point in issue, either
on the one side or the other. This evidence may
be either such as is given in proof, or that which the
jury may receive by their own private knowledge.
Proofs are either written, or parol evidence, that
is, by word of mouth.
S11
Written proofs, are records, and ancient deeds
of thirty years standing, which prove themselves;
but modern deeds and other writings must be
attested and verified by parol evidence of wit-
nesses,
In all civil causes one general rule is laid down;
that the best evidence the nature of the case will
admit of, shall always be required, if possible to
be had; otherwise, the best evidence that can be
had, shall be allowed.
Parol evidence, or witnesses, are procured by a
writ of “supoena ad testificandum.” This com-
mands them, laying aside all pretences and excuses,
to appear at the trial, on pain of £100. to be for-
feited to the king; and a penalty of £10. to the
party aggrieved, and damages equivalent to the
loss sustained by want of his evidence. No wit-
ness, however, unless his reasonable expenses be
tendered him, is bound to appear at all; nor, if he
appear, is he obliged to give evidence till such
charges are actually paid him ; except he resides
within the bills of mortality, and is summoned to
give evidence within the same.
All persons, of whatever religion or country, who
ve the use of their reason, and are not interested,
are competent witnesses. But the jury are at liberty
to judge of their credibility.
One credible witness is sufficient to establish a
fact; though the concurrence of more certainly
strengthens the proof. But it is an invariable rule,
that no man shall be a witness in his own cause.
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Positive proof is always required where the
nature of the case admits of it; but if that cannot
be had, circumstantial evidence, or the doctrine of
presumptions, must take place. The oath admi-
mistered to the witness, obliges him to depose not
only the truth, but the whole truth; that is, he is
to divulge all that he knows of the matter, whether
he be examined as to any particular point or not.
His evidence is to be given in open court, in the
presence of the parties, their attornies, counsel,
and all bystanders, and before the judge and jury.
Each party is at liberty to except to the compe-
tency of the evidence. Any exceptions are pub-
licly stated to the judge, who as publicly allows
or disallows them in the face of the country.
If the judge, through inadvertence, ignorance,
or design, should mistake the law in directing the
jury, then the counsel, on either side, may
require and compel him publicly to seal a bill of
cxceptions; stating the point wherein he is sup:
posed to err.
The public examination of witnesses, viva voce,
is attended with many advantages. For hereby a
witness is deterred from saying an untruth, which
he might not be afraid of asserting at a private
investigation, The sudden manner, too, in which
questions are put to him, either by the judge, the
counsel, or the jury, has a direct tendency to
develope the truth. The confronting of adverse
witnesses is likewise a means of obtaining a clear
discovery of facts; whilst the judge and jury have
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an opportunity from the presence of the witnesses
of judging of their quality, age, education, under-
standing, and inclinations. All which is manifestly
in favour of the disclosure of the truth, and of the
detection of falsehood.
If a juror know any thing of the matter in issue,
he may be sworn as a witness, and give his evi-
dence openly in court.
The evidence being gone through on both sides,
the judge proceeds to sum up the whole to the
jury, in the presence of the parties, their counsel,
and all others, in open court. In doing which,
his lordship observes wherein the main question or
principal issue lies, states what evidence has been
adduced in its support, and gives his opinion to the
jury in matters of law arising upon that evidence.
If the case be not very clear, the jury then retire
from the bar to consider of their verdict. They
must be kept entirely by themselves, and not suf-
fered to speak to either of the parties, or their
agents ; nor to receive any fresh evidence in pri-
vate; nor cast lots for whom they shall decide; as
any of these circumstances would invalidate their
verdict. And to avoid intemperance or unneces-
sary delay, they are to be kept without meat, drink,
fire, or candle, unless by permission of the judge,
till they are all unanimously agreed. If they
should not be agreed before the judges are about
to leave the town, they are not to be threatened or
imprisoned. Yet the judges are not bound to wait
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for their decision, but may take them from town
to town throngh the circuit, in a cart, until they
can make up their minds.
When the jury are agreed, they return back to
the bar; and before the verdict is delivered, the
plaintiff is bound to appear in court by himself, or
bis attorney, or counsel, in order to answer the
amercenient to which he is liable, if he fail in his
suit. If the plaintiff do not appear, he is said to
be nonsuit, and no verdict can be given ; and there-
fore it is usual for him, when he or his counsel
perceive that he has not sufficient evidence to main-
tain his issue, to be voluntarily nonsuited. Where-
upon the action is ended, and the defendant shall
recover his costs. The reason of this practice is,
that after a nonsuit the plaintiff may commence his
action again;. but after a verdict and judgment
against him, he cannot attack the defendant again
upon the same grounds.
A verdịct, means to speak truly; and by it the
jury openly declare to have found for the plaintiff
or defendant.
A special verdict, is when the jury simply state
the naked facts as they find them to be proved, and
pray, the avice of the court thereon ; concluding
conditionally, that if upon the whole of the matter,
the court shall be of opinion that the plaintiff had
the cause of the action that they find for him ; if
otherwise, then they find for the defendant.
A special case, is another species of verdict,
where the jury find generally for the plaintiff, sub-
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ject to the opinion of the judge or court above, on
a special case stated by the counsel on both sides,
with regard to a matter of law.
When the verdict is given and recorded in court,
the trial is at an end, and the jury is discharged.
The judgment of the court follows the verdict of
the jury; but it may be suspended and finally
arrested ; for it camot be entered till the next term
after trial had, and that upon notice to the other
party. So that if any defect of justice happened at
the trial through surprise, inadvertency, or miscon-
duct, the partý may have sufficient relief in the
court above, by obtaining a new trial ; which is
always granted when the reasons for applying for
one are sufficiently weighty.
Arrests of judgment arise from intrinsic causes
appearing on the face of the record. Of this kind
arė, first, where the declaration varies totally from
the original writ: secondly, where the verdict dif-
fers materially from the pleadings or issue thereon:
or thirdly, if the case laid in the declaration be
not sufficient in point of law to found an action
thereon.
If judgment be not by some of these means ar-
rested within the first four days of the next term
after the trial, it is then to be entered on the roll or
record. But where judgment is arrested, each
party, pays his own costs.
Judgments are riot the determination of the
judge, but the sentence of the law; and are of
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four sorts. First, where the facts are confessed
by the parties, and the law determined by the
court; as in case of judgment upon demurrer:
secondly, where the law is admitted by the
parties and the facts disputed; as in the case of
judgment upon a verdict: thirdly, where both the
law and the fact arising thereon are admitted by
the defendant; which is the case of judgment by
confession or default: or lastly, where the plaintiff
is convinced that either fact or law, or both, are
insufficient to support his action, and therefore
abandons or withdraws his prosecution ; which is
the case in judgments upon a nonsuit or retraxit.
As the consequence of judgment, execution will
immediately follow, unless the party condemned
thinks himself unjustly aggrieved by any of these
proceedings. And then he has his remedy to re-
versethem by several writs, in the nature of appeals.
The principal method of redress in wrong judg-
ments by way of appeal, is by a writ of error to
some superior court. A writ of error for some
supposed material mistake, assigned in the pro-
ceedings of a court of record, lies, in the last resort,
to the house of lords; whose decision cannot be
reversed, nor even reviewed.
Where judgment has not been suspended, super-
seded, nor reversed, execution follows, or the law
is put in force, according to the nature of the action.
The different writs of execution must be sued
out within a year and a day after judgment is en-
tered; otherwise the court concludes that the
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317
judgment is satisfied and extinct. Yet the defen-
dant may be compelled to shew cause why the
judgment should not be revived, &c. &c.
Such is our admirable mode of trial by jury in
civil actions. A mode, the best calculated for in-
vestigating the truth of facts, and for securing the
property and reputation of every Englishman.
In early times all trifling suits were tried in the
lower courts, such as courts baron, county courts,
and the like; but causes of great moment, were
brought into the superior courts, where all trials
took place at the bar of the court where the action
commenced. But when the number of these trials
so increased as to make the expense to the suitors
a great burden, it was provided by statute that all
such actions should be tried at the assizes in the
county where the cause of them arose.
So that a
trial at bar, the most solemn investigation that a
court of common law can institute, can now only
be obtained by motion in court made in term time,
and granted upon affidavits, stating the intricacy
and importance of the cause; and if it be allowed,
it must be on condition that the jurors be special.
If the action be.laid in London, the cause cannot
be tried at bar, because of the charter of London,
which exempts its citizens from serving as jurors
out of the city; unless they wave their privileges,
and then the trial may be had. When the court
allows a trial at bar, they always fix a day for it,
previous to which the plaintiff must give the de-
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318
fendant fifteen days notice of his intention to
pro-
secute the cause.
Trial at bar can only be had in term time, be-
cause the four judges of the court must be present
sitting in full bench; and must have received co-
pies of the issues delivered to them four days at
least before the day appointed for such trial. New
trials may be granted after trials at bar, as well as
after trials at nisi prius.
CHAP. XXVII.
OF COURTS OF EQUITY.
Although there is some difference with regard
to the forms of practice adopted in the court of
chancery, and the equity court of exchequer, yet
the same system of redress is pursued in each.
Equity, in its true and genuine iinport, is the
soul and spirit of all law. Positive law is con-
strued, and rational law is made by it. Nothing
more is intended by equity, than the sound inter-
pretation of the law. The words of the law itself
inay, and often are, too general, too special, or
otherwise defective. In such case, it is the pro-
vince of equity to expound their true meaning.
However the courts of law and equity may differ
in their outward forms, they rest upon the same
substantial foundation. Their proceedings are
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dissimilar in the mode of proof, the mode of trial,
and in the mode of relief; so that the essential dif-
ference between them, consists in the different
modes of administsring justice in each.
With respect to the mode of proof: when facts;
or their leading circumstances, depend only on the
knowledge of the party, a court of equity applies
itself to his conscience; and purges him, upon oatlı,
with regard to the transaction. The truth being
hereby once discovered, the judgment is the same
in equity as it would have been, had the same facts
appeared in a court of law.
The mode of trial in courts of equity, is by inter-
rogatories, administered to the witnesses; upon
which their depositions are taken in writing,
wherever they happen to reside. If, therefore, the
cause arise in a foreign country and the witnesses
live on the spot ; if in cases arising in England the
witnesses are abroad, or soon to leave the king-
dom; or if witnesses residing at home are aged and
infirm ; a court of equity may and will grant a
commission to examine them.
As to the mode of relief: the want of a more
specific remedy than can be obtained in the courts
of law, gives a concurrent jurisdiction to a court
of equity in a great many cases. As in executing
agreements, which a court of equity will cause to
be carried into strict execution, instead of giving
damages for their non-performance. And in other
instances, a more extensive and specific relief may
320.
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be had in courts of equity, than can be obtained
in the courts of law.
A suit in chancery commences by preferring a
bill to the lord chancellor, in the style of a petition,
“humbly complaining, sheweth to your lordship,
your orator A. B. that,” &c. &c. setting forth the
circumstances of the case at length, as some fraud,
trust, or hardship; “in tender consideration
" whereof, and for that your orator is wholly with-
“out remedy at the common law;" relief is there-
fore prayed at the chancellor's hands, and also a
process of subpoena against the defendant, to
compel bim to answer, upon oath, to all the matter
charged in the bill, &c. &c.
The bill preferred, must be signed by counsel,
as a certificate of its decency and propriety.
When the bill is filed, process of subpoena is
taken out, commanding the defendant to appear
and answer to the bill, on pain of forfeiture of
£100; and if he do not appear within the time
limited by the rules of the court, he is then said to
be in contempt. The consequence of which is an
attachment. This is a writ in the name of a capias,
directed to the sheriff, commanding him to attach
or take up the defendant, and bring him into court.
If the sheriff should return that the defendant non
est inventus, i. e. was not found, then an attach-
ment with proclamations issues. Which enjoins
the sheriff to cause proclamations to be made
throughout the county, to suinmon the defendant,
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upon his allegiance, personally to appear and
answer. If this writ also should be returned with
a non est inventus, a commission of rebellion is
awarded against him, for not obeying the king's
proclamations, according to his allegiance. And
four commissioners therein named, or any of them,
are ordered to attach him wherever they find him,
as a rebel to the king's government.
If notwithstanding a non est inventus be still
returned, the court then sends a serjeant at arms in
quest of him. And if he elude the search of the
serjeant also, then a sequestration issues to seize all
his personal estate, and the profits of his real, and
to detain them subject to the order of the court.
After an order of sequestration is issued, the
plaintiff's bill is to be taken pro confesso, and a
decree to be made accordingly. And thus much
if the defendant abscond. But if the defendant be
taken in any stage of this process, he is transmitted,
to the fleet or other prison, till he put in his appear-
ance, or answer, or perform what else this process
is issued to enforce. He must also clear his con-
tempts by paying the costs which the plaintiff has
incurred thereby.
If the defendant should be a body corporale,
the process is by distringas, to distrain thein, by
their goods and chattels, rents and profits, till they
shall obey the summons or directions of the court.
But if the defendant be a peer of the realm, the
lord chancellor sends a copy of the bill together
with a letter missive to him, to request his appear-
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ance. If he neglect to appear, he may be served
with a subpoena ; and if he still continue in con-
tempt, a sequestration issues out immediately
against his lands and goods. The same process is
pursued against a member of the house of com
mons, except only that the lord chancellor does
not send his letter missive to him.
But should the defendant appear regularly and
take a copy of the bill, he is then to demur, plead,
or answer.
A demurrer in equity, is nearly of the same na-
ture as a demurrer in law. It is an appeal to the
judgment of the court, whether the defendant shall
be bound to answer the plaintiff's bill. If the de-
murrer be overruled, the defendant is ordered to
.
A plea, may be either to the jurisdiction, shew-
ing that the court has no 'cognizance of the cause;
or to the person, shewing some disability in the
plaintiff, as by outlawry, excommunication, and the
like; or it is in bar, shewing some matter, where-
fore the plaintiff can demand no relief.
In equity courts, an answer is the most usual
defence that is made to the plaintiff's bill. It is
given in upon the oath of a commoner, or the ho-
nour of a peer or peeress. But where there are
amicable defendants, their answer is usually taken
without oath, by consent of the plaintiff.
If the defendant live within twenty miles of Lon-
don, his answer must be obtained by swearing him
before one of the masters of the court. If he
answer.
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reside farther off, there may be a commission to
take his answer in the country; where the com-
missioners adininister to him the usual oath, The
answer being then sealed up, is carried by one of
the commissioners up to the court. Or it is sent
by a messenger, who swears he received it from
one of the commissioners, and that the same has
not been opened or altered since he received it.
The answer must be signed by counsel and must
either deny or confess all the material parts of the
bill; or it may confess and avoid ; that is, justify
or palliate the facts. If none of this be done, the
answer may be objected to as insufficient, and the
defendant be compelled to put in a more satisfac-
tory one. In his answer, the defendant may pray
to be dismissed the court; but if he have any relief
to pray against the plaintiff, he must do it by an
original bill of his own, called a cross-bill.
After an answer is put in, the plaintiff, upon
payment of costs, may amend his bill; either by
adding new parties or new matter; and the defen-
dant is obliged to answer afresh to such amended
bill.
If the plaintiff now find sufficient matter con-
fessed in the defendant's answer to ground a decree
upon, he may proceed to the hearing of the cause,
upon bill and answer only. But in that case, he
must take the defendant's answer to be true in
every point. Should this not be the case, the plain-
tiff is then to reply generally to the answer, aver-
ring his bill to be true, certain, and sufficient, and
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the defendant's answer to be the reverse; which he
is ready to prove, as the court shall award. Upon
which the defendant rejoins, averring the like on
his side, which is joining issue upon the facts in
dispute.
The next step is to prove these facts; which is
done by examining witnesses, and taking their de-
positions in writing, The witnesses near London
are examined at an office appointed ; and those in
the country, by commissioners.
When all the witnesses are examined, the depo-
sitions may be published. After which, they are
opened for the inspection of all the parties, and
copies may be taken. The cause is now ripe to be
set down for hearing; which may be done at the
procurement of the plaintiff or defendant, before
either the lord chancellor, or the master of the rolls,
according to the direction of the clerk in court, the
nature of the suit, and the arrear of causes depend-
ing before each:
The decrees of the master of the rolls are valid,
but subject to be discharged or altered by the chan-
cellor, and cannot be enrolled till they are signed
by his lordship.
The method of hearing causes in court is this :
the parties on both sides appearing by their coun-
sel, the plaintiff's bill is first opened, and the de-
fendant's also by the junior counsel on each side.
After which the plaintiff's leading counsel state the
case, the matters in issue, and the points of equity
arising thereon. Then such depositions as are
325
i
called for by the plaintiff are read by one of the six
clerks; and the plaintiff may also read any part of
the defendant's answer ; and after this, the rest of
his counsel proceed to make their observations and
arguments. The defendant's counsel then goes
through the same process for him, except that they
may not read any part of his answer. And the
counsel for the plaintiff are heard in reply. The
court then pronounces the decree, adjusting every
point in debate according to equity and good.con-
science.
If either party think himself injured by the
décree, he may petition the court for a rehearing.
But the petition inust be signed by two respectable
counsel, certifying that it is their opinion that the
cause is proper to be reheard. But after the de-
cree is once signed and enrolled, it cannot be re-
heard or rectified, but by a bill of review, or by
appeal to the house of lords.
A bill of review may be had upon apparent error
in judgment appearing upon the face of the decree;
or by special leave of the court, upon oath made o.
the discovery of new matter, or evidence which
eould not be possibly had or used at the time
when the decree passed. But the dernier resort
of the party who thinks himself aggrieved, is an
appeal to the house of lords. This is effected by
petition to that high court, and not by writ of error.
But no view evidence is admitted in the house of
lords, upon any account.
"
CHAP. XXVIII.
OF PUNISHMENT:
OF
Let us now enquire into the nature of crimes and
their punishment. In the preceding chapters, those
offences have been considered which arise between
man and man. The discussion of the présent
chapter relates to the criminal law, or pleas of the
crown. The king is the proper prosecutor for
every public offence; because, as the collective
dignity of the community centres in his Majesty,
he is supposed to be personally injured whenever
any member of the body politic suffers.
A crime, is an act committed or oinitted in
breach of a public law, which either forbids or
command's it.
A misdemeanor, is a term of milder import, and
signifies any indictable offence which does not
amount to felony; such as perjury, battery, libels,
conspiracies, &c.
Laws, for the punishment of those who commit
any crime, are necessarily enacted for the good
government and security of the state ; and such
laws being once made by the supreme authority
for the regulation of the conduct of the whole com-
munity, it is expedient that the chief magistrate
should be armed with the power of enforcing them.
327
1
“ He beareth not the sword in vain; for he is the
“ minister of God, a revenger to execute wrath
upon
him that doeth evil.” And punishments
have been devised, denounced, and inflicted by
human laws, in consequence of the disobedience,
of those who have been guilty of such outrages as,
if permitted with impunity, would soon loosen all
the bands of society.
Human punishment may be considered with
regard to its power, end, and measure.
With respect to the power or right of the legis-
lature to inflict punishment, any one must see the
mischief that would arise if men were allowed
to redress their own grievances. But no man be-
ing a proper judge in his own case, the power of
enacting punishment, is, with the strictest justice,
transferred from individuals to the sovereign autho-
rity; and thereby one of the evils which civil
government was intended to remedy, is prevented.
The justice of human punishment can originally
be maintained on no other principles than those of
the law of nature, which authorize every man to
secure himself against the assaults of others. But
with regard to the particular mode of punishment
which may be thought best calculated to defend
every individual in his civil capacity from injury,
that must be left to the wisdom and determination
of the supreme legislative authority.* And it is in
vain for any criminal to say that this or that penalty
* See Gisborne's Moral Philosophy, ch. xi.
328
is too severe for his crime; for it is a maxim of the
constitution, that every man is consenting expressly
or impliedly to every act of the legislature. The
criminal code, therefore, is a constituent part of
that original contract into which every man enters
when he first becomes a member of society; and
was intended to contribute to his personal safety
and happiness, till his own folly brought down its
terrible vengeance upon his head.
As to the end of human punishment: it is not
inflicted by way of revenge; for that would be to
usurp the prerogative of God, to whom only ven-
geance belongeth. Neither is it awarded to make
an atonement. For every wilful violation of human
laws that are not contrary to revelation, is a breach
of the moral law; and no human suffering can re-
move the guilt of the offender, or make whole the
law which he has broken. Suffering is the effect
of transgression. Now it is absolutely impossible
that an effect should destroy the cause which pro-
duced it. No length of confinement of a debtor,
for instance, will discharge the debt which he owes.
In short, it is from the scriptures alone that we
learn how sin can be pardoned consistently with
the divine attributes and government.*
The sole design, then, of the legislature in enact-
ing punishments, is to prevent the commission of
the same crimes in future. This is effected in three
1
* Rom. ch. iii. ver. 20~26. 1 Peter, ch, jii, veř. 18. See also
Butler's Analogy, part 2, ch. v.
329
ways: either by the amendment of the offender
himself, in suffering corporal punishments, such as
exile, fines, imprisonments, and the like; or by the
deterring of others by the dread of example, which
gives rise to all ignominious and open punishments;
or by depriving the criminal of the power of doing
further mischief, which is accomplished either by
death, perpetual imprisonment, or banishment for
life. These, however, very seldom are, and ought
never to be inflicted but when the offender
appears
incorrigible. But if upon his trial, various circum-
stances lead to a fair conclusion that there is no
hope of his amendment, it would be injustice to the
public to delay any longer the heaviest punishment
of such a criminal.
With respect to the measure of human punish-
ments; this must be left to the wisdom and discre-
tion of the legislature, to enact such penalties as are
warranted by the laws of nature and society. They
should be such as seem best adapted to answer the
end of preventing future transgression.
The law of retaliation is not a proper mode of
punishment; because in various instances it would
be more than a compensation; as if a court were
to award a peasant to strike a nobleman who had
struck him. In some cases it would not be ade-
quate to the offence; as if a man were sentenced
to lose one of his eyes, who had put out the only
eye of his neighbour. And in other instances
it is impossible to apply it; as in the cases of theft,
defamation, forgery, &c. &c.
Y
330
There are some general principles to be regarded
in allotting a punishment which shall be adequate
to the offence.
It is necessary to attend to the object of an
injury; to the violence of passion or temptation
with which it was committed ; to the age, educa-
tion, and character of the offender; with a variety
of other circumstances which may extenuate or
aggravate the commission of a crime; and must
point out all the measure of punishment.
As punishments, then, aq'e chiefly intended for
the prevention of future crimes, it follows, that those
offences should be most severely punished which
are most destructive of the public safety and happi-
ness; and which a man has the most frequent and
easy opportunity of committing. Hence, it is in
more cases capital, for a servant to rob his master
than for a stranger. So to steal any trifle from one's
person privately, of the value of twelve-pence, is
made capital ; but to carry off a load of corn from
an open field, is punished only with transportation.
Great severity in the punishment of crimes, is
thought by many wise men to defeat its own end.
They are of opinion, that crimes are more effectually
prevented by the certainty, than by the severity of
punishment. Because where the severity of laws
is very great, the execution of them is hindered by
the public humanity. A feeling man will decline
to prosecute, where he thinks the conviction would
be followed by excessive punishment; and a mer-
ciful prince, under similar circumstances, will be
391
often constrained to pardon the criminal, or dis-
pense with a part of the sentence of the law.
Hence it is often objected that the English cri-
minal code is too sanguinary. Perhaps it would
be more correct to say, that its provisions too fre-
quently inflict the penalty of death upon offenders ;
in other words, that the punishment is too often dis-
proportioned to the offence. The term sanguinary
seems improper, as implying oppression, tyranny,
and revenge ; yet undoubtedly, whenever the legis-
lature has enacted the punishment of death, it has
done it principally with a view of preventing the
future commission of the particnlar crime; and
not of excercising an inhuman cruelty. If, there-
fore, the end of such punishment be not fully an-
swered, the fact only proves the incorrigible depra-
vity of those unhappy creatures, who cannot be
restrained by the dread even of an ignominious
death. Besides, although so many offences are
made capital; it is certain, that comparatively few
èxecutions take place, since the far greater part of
capital convicts receive a conditional pardon. But
it will be said, “ does not this very circumstance
prove that the severity of the law defeats its own
end, by occasioning an indeterminate relaxation
“ of its application ? Are not men of depraved
“ morals induced to offend the laws when they
" consider the probability that they shall escape
“their utmost severity? If you would then prevent
“ the commission of crimes, either abolish the
Y2
832
penalty of death, or, let it or a more lenient pe-
“nishment be certainly inflicted. The certainty of
suffering even a milder punishment will deter
“men from breaking the laws much more effectu-
ally than the sentence of death, which loses half
" its terrors, through the uncertainty of its ex-
“ ecution.". It must be confessed that this is spe-
cious, but we doubt whether it be solid reasoning.
Is it a fact, that the certainty of punishment does
in general deter men from sinning? On the con-
trary, do they not presumptuously go on filling up
the measure of their iniquities, more from the delu-
sive hope of escaping detection, than refrain from
it through the dread of suffering? When sin is once
conceived, it operates in deluding the mind. Men
are “hardened through the deceitfulness of sin."
And if we examine the sacred scriptures on the
subject, we shall find that they do not represent
transgressors as cooly calculating on the proba-
ble punishment which they shall receive for the
offences they are about to commit, but as
couraging themselves” and others “ in an evil
“matter” with the flattering persuasion of secrecy.
They commune of laying snares privily, they say,
who shall see them ?"* Hence, David prayed,
“ Hide me from the secret counsel of the wicked."
Now, unless the certainty of any specific punish-
ment can be proved to be a certain prevention of
any particular crime, of sheep-stealing, for in-
66 en-
* Psalın lxiy. Proverbs i, ver, 11.
333
stance, in all persons, the remedy is absolutely
inadmissible. For it would preclude that discre-
tion which every British judge ought to have, and
which henever fails to exercise in respiting according
to the age, the character, and other circumstances
of the criminal, the sentence he has been obliged
to pass. But what is worse, this certainty of pu-
nishment, at onceplucks out the most brilliant jewel
in the royal diaden-- the prerogative of mercy! If,
however, it should be said, that this is not intended;
then what becomes of the certainty of punishment?
Will not the sheep-stealer, the horse-stealer, and
other criminals, deceive themselves with the hope,
that although they may perhaps be convicted, yet
they shall be recommended by a feeling jury, or a
compassionate judge, to the royal favour, and so
escape punishment altogether? Is it not an unde-
piable fact, that a great part even of those unhappy
convicts who end their shameful lives upon the gal-
lows, deny their guilt, with the halter round their
necks, from a delusive hope of the arrival of a
pardon, or reprieve? Besides, as every crime that
is committed, is extenuated or aggravated, accord-
ing to the ever-varying circumstances of the offen-
der, no definite punishment could with any justice
be invariably inflicted. Equity must sometimes
soften the rigour of law, unless we would convert
what is called our sanguinary system into a
merciless code.
If, then, the execution of any punishment were
made certain, it would be impossible for the sove-
334
cy."
reign to fulfil a material part of his coronation oath,
which enjoins him to “ execute judgment in mer-
But where is the subject who would carry
his speculations thus far? When the popular lord
Russel denied the king's prerogative to remit the
ignominious part of the sentence against lord Staf-
ford, he surely was influenced more by a misguided
zeal, than a sound judgment. Nor did he foresee
that the king would so soon have occasion to ob:
serve, “ that his lordship would now find he was
possessed of that prerogative, which in the case
" of lord Stafford he had denied him."*
It is true, that Sir William Blackstone in his
luminous commentaries, most unequivocally con-
demns the severity of our criminal code; but it is
equally certain that the practice of inflicting capi-
tal punishments is justified by the great and excel-
lent Sir Matthew Hale. They, therefore who
think that the English criminal law cannot be
too severely reprobated, ought to reflect that the
wisest men, the profoundest lawyers, the most
exemplary christians have and still do differ in
opinion on this very delicate and difficult subject.
# Hume's Reign of Charles II.
CHAP. XXIX.
OF HOMICIDE.
NOTWITHSTANDING it has been already stated
that a specification of different crimes fall not with-
in the limits allotted to this work; the subject of
the present chapter is introduced as affording
favourable opportunity of bearing our public,
though feeble, testimony against those species of
homicide which the laws of honour and custom
sanction rather than reprobate.
The greatest crime that can possibly be com-
mitted against the persons of any of the king's liege
sụbjects, is the wilful taking away of that life
which is the immediate gift of God. A man has
no right to destroy his own life; much less is
he authorized to deprive his neighbour of his;
except when under certain circumstances he
is either permitted or commanded to do so
by the laws of nature or revelation.
the best action may be nullified by the unwor-
thy motive from which it originated ; so even the
killing of a fellow creature is an act altogether in-
nocent,, if there be a total absence of all malicious
intention or premeditated design. The laws of
But as
336
t
England, therefore, with their usual regard to rea-
son and revelation, very properly contemplate
homicide in three points of view; viz. as justifiable,
excusable, and felonious.
Homicide, imports in law, the killing of any
human being
Justifiable homicide is of various kinds. It
may
be such as arises from some unavoidable ne-
cessity, without the consent of the will of the person
killing, and is therefore without any blame. As
when the law requires it, one by virtue of his office
puts another to death. Again, homicide is justifi-
able when it is committed to advance the public
justice; as when an officer in the execution of his
office, either in a civil or criminal case, kills a
man who resists him. So, likewise, if a man be
killed in attempting to commit a robbery, or in
breaking open a house in the night time, the slayer
commits only a justifiable homicide; and the law
considers that he has done a commendable rather
than a blameable act. Indeed it is a constitutional
maxim, that one may lawfully kill another who
forcibly attempts to commit any crime that is
punishable with death.
· Excusable homicide is of two sorts ; either by
misadventure, or upon a principle of self-defence.
Homicide by misadventure, is where one in doing
a lawful act kills another without any intention of
hurting him. As if a parent, or master, or an of-
ficer, in moderately correcting a child, apprentice,
or a soldier, happen to occasion his death, it is only a
337
misadventure, because the act of moderate correction
is lawful. But neither the manner nor instrument,
nor measure of the correction must exceed the
bounds of moderation and reason; otherwise, if
death ensue, it will be murder, or manslaughter at
the least, according to circumstances.
Homicide in self-defence, is that whereby a man
by killing his assailant, may protect himself from
assault, in the course of a sudden quarrel. This is
what the law terms chance-medley, or a casual af-
fray. But if both parties be actually combating at
the time when the mortal stroke is given, then the
slayer is guilty of manslaughter. So that to con-
stitute a homicide in self-defence, it must appear
that the slayer had no other possible means of
saving his own life but by killing his antagonist.
Felonious homicide, is the killing of any human
creature without justification or excuse. This
may
be done either by destroying one's self or another.
A felo de se, or self-murderer, is one who deli-
berately puts an end to his own life; or commits
any unlawful act, the consequence of which is his
own death; as if in maliciously shooting at another, ,
the gun burst and kill him.
Suicide admits of accessories; as if one per-
suade another to kill himself, and he do so, the
adviser is guilty of murder.
Wilful suicide is the most heinous crime that a
man can possibly commit. For the same rebelli-
ous act by which he invades the prerogative of the
Almighty, instantly cuts him off from all possibility
1
398
of repentance, and hurries him uncalled before his
offended God.
« Dreadful attempt!
“ Just reeking from self-slaughter, in a rage
“ To rush into the presence of our Judge;
“ As if we challeng'd him to do his worst,
“ And matter'd not his wrath."*
But suicide is also a crime against the king,
who has an interest in the life of every one of his
subjects. The law of England, therefore, has
annexed such punishment to this horrid crime, as
the nature of the case admits. He who is guilty
of it, has indeed removed his conscious part beyond
the reach of human power ; which can, however,
act upon his reputation and property. To affect
the former, therefore, the law directs that the dead
body shall have an ignominious burial, by being
interred in the king's highway, with a stake driven
through it. And with respect to his property;
all his goods and chattels shall be forfeited to the
king. The end of the law in inflicting this degra-
dation and confiscation, so well calculated to
restrain any one who regards his own character or
the interests of his family, from committing so
dreadful a crime, is almost wholly defeated by the
too common practice of juries in returning verdicts
of lunacy; when the evidence is far from justi-
fying such a decision. Before a jury give a verdict
of lunacy, they should well consider, whether, if
* Blair's Grave,
339
1
the deceased had in the same state of mind killed
another instead of himself, the evidence before them
would have obliged them to acquit him of wilful
murder. It is, indeed, a common notion, that
none but a madman would have destroyed himself.
But surely this sort of reasoning is very absurd :
for is not the drunkard mad, who wastes his time
and property; who, by stupifying his senses and
enervating his body, commits a kind of lingering
suicide; who, although he is positively assured
that no drunkard can enter into the kingdom of
heaven, still deliberately persists in his sin ? Is
not the adulterer mad, who, in defiance of the
plainest dictates of reason, and of the importunate
remonstrances of conscience, dares to violate the
wife even of his most intimate friend, notwithstand-
ing the alarming truth is constantly sounded in his
ears, that “whoremongers and adulterers God
“ will judge?” Yet, who thinks of extenuating
the guilt of either on the ground of lunacy?
A mistaken tenderness for the relatives of the
deceased, and an unwillingness to deprive them of
his property by their verdict, doubtless sometimes
bias the conduct of a coroner and his jury. But
they have nothing to do with consequences, and no
consideration ought to come in competition with
the solemn obligation of their oath ; which requires
the jury to give a verdict according to the evidence.
The other species of criminal homicide, is that
of killing another person ; and this is divided into
inanslaughter and murder.
1
1
340
Manslaughter, is defined to be,
" the unlawful
killing of another without malice either expressed
“ or implied, which may be either voluntarily
upon a sudden heat ; or involuntarily, but in
“ the commission of an unlawful act."
If upon a sudden quarrel two persons fight, and
one of them kill the other; or if upon such occa-
sion they go out into a field and fight, this being
one continued act, the killing is voluntary man-
slaughter. But if in either case there be sufficient
cooling time for the passions to subside and reason
to interpose, and the person provoked afterwards
kill his adversary, then he is guilty of murder.
So if two men deliberately agree to fight for a
wager, and one of them kill the other, it is
murder ; because the act of going out to fight for
a wager, was in itself unlawful.
Yet, in contempt of all law, the brutal custom
of pugilism is daily practised amongst us.
Even
the magistracy itself is openly insulted by the
previous notice of these murderous combats, which
is given in the public newspapers; the editors of
which, by disgracing their columns with a dis-
gusting minuteness of detail after the battle is
over, give a lamentable proof of their own vitiated
taste and feelings, and thus prostitute the liberty
of the press, to the great injury of the public
morals. Pugilism is a science which might have
been very suitably displayed in a Roman amphi-
theatre, before an assemblage of Heathen specta-
tors; but is surely a disgraceful practice in a
3
S41
christian country. The laws no doubt are suffi-
cient to restrain these daring offenders against
public order, were there not a culpable remissness
in enforcing them.*
Involuntary manslaughter differs from homicide
excusable by misadventure. The latter always
happens in conseqnence of a lawful act; but the
former, in the commission of one that is unlawful.
The crime of manslaughter amounts to felony,
but within the benefit of clergy; and the offender
is punished with fine and forfeiture of all his goods
and chattels.
The legal definition of the horrible crime of
murder is, “ when a person of sound memory and
discretion, unlawfully killeth any reasonable
“ creature in being, and under the king's peace,
“ with malice aforethought, either express or
implied.”
The unlawful killing may take place by poi-
soning, starving, striking, drowning, or by any
other means by which death may be wilfully
inflicted on a human creature. A man may be
guilty of murder although he strike no blow, nor
* The magistrates of the county of Cambridge very laudably
passed certain resolutions at the last Christmas quarter sessions,
to prevent the disgraceful practice of prize-fighting. Mr.justice
Grose, in his charge to the grand jury at the last Lent assizes,
highly commended their conduct, and called upon the public in
general to assist them in their endeavours; and observed, that if
after such notice any persons should abet such practices, they
would on conviction be liable to twelve months imprisonment.
Cambridge Chronicle, March 19th, 1808.
942
A
primarily intend the death of another; as if a
parish officer should shift a pauper from parish to
parish till he dies for want of food and proper
care. But to constitute any killing murder, it is
necessary that the party die within a year and a
day after the cause of the death was administered.
The grand criterion, however, which distin-
guishes murder from all other killing, is, that
the killing must be committed with malice afore-
thought; and this in law may be either express or
implied.
Express malice, is when one kills another with
deliberate design ; which design is evidenced by
some overt act, as lying in wait, antecedent threats,
former grudges, and concerted schemes to accom-
plish his diabolical purpose.
Deliberate duelling falls under this description
of express malice. And the law of England has
justly fixed the crime and punishment of murder
upon both the principals and accessories of this
unchristian practice. Nothing more is necessary
with us to check this daring violation of all law,
human and divine, than the same firmness and
integrity on the trial of a duellist, which so
eminently distinguish an English jury upon all
other occasions.
Perhaps it will be asked, what are men of
honour to do, if they must not appeal to the
pistol and the sword? The answer is obvious; if
one gentleman have offended another, he cannot
give a more indisputable proof of genuine courage,
343
than by making a frank acknowledgment of his
fault and asking forgiveness of the injured party.
On the other hand, if he have received an affront,
he ought freely to forgive, as he hopes to be for-
given of God. “The discretion of a man deferreth
“ his anger; and it is his glory to pass over a
“ transgression.” But if either party madly aggra-
vate the matter by sending a challenge to fight,
the other must not be a partaker of his sin, if
he would “obey God rather than men.”
Still it will be said, that a military or naval
officer at least must not decline a challenge if he
would maintain the character of a man of courage.
But is it not insulting the loyalty and good sense
of the brave defenders of our laws, even to imagine
that they, of all men, must violate them to pre-
serve their honour; since the king has expressly
forbidden any military man to send a challenge to
fight a duel, upon pain of being cashiered, if an
officer; and of suffering corporal punishment, if a
non-commissioned officer or private soldier? Nor
ought any officer or soldier to upbraid another for
refusing a challenge, whom his Majesty positively
declares he considers as having only acted in
obedience to his royal orders, and fully acquits of
any disgrace that may be attached to his conduct.
Besides, what necessary connexion is there be-
tween the foolhardiness of one who risks the
eternal perdition of his neighbour and himself in
* See Articles of War, sec. vii,
344
an unlawful combat, and the patriotic bravery of
him who, when duty calls, boldly engages the
enemy of his-king and country? No one will
dispute the bravery of the excellent colonel Gar-
diner, who was slain at the battle of Preston Pans,
in the rebellion in 1745. Yet, he once rejected a
challenge with this dignified remark: “I fear
“sinning, though you know I do not fear fighting."*
The fact is, that fighting a duel is so far from
being a proof of a man's possessing true courage,
that it is an infallible mark of his cowardice. For
he is influenced by “the fear of map," whose
praise he loveth, more than the praise of God.
It is also murder by express malice, if a master
or teacher upon a sudden provocation beat his
servant or scholar in a cruel and unusual manner
so that he dies, although the offender did not
intend his death ; because such cruelty indicates a
malignity of heart.
Implied malice, is where a man wilfully poisons
another. The law presumes that such a delibe-
rate act could arise only from malice, although
no particular enmity can be proved. So also if
one, knowing the authority of an officer of justice,
kill him in the execution of his office, the law
will imply malice, and consider the slayer guilty
of murder,
* See Doddridge's Life of colonel Gardiner ;-an interesting
piece of biography, which is worthy the perusal of every officer
in the army and navy.
345
With respect to the punishment of murder: the
law directs, that immediately upon conviction, the
judge shall pronounce judgment, unless he see
cause to defer it. In passing sentence, he is to
direct the criminal to be executed on the next day
but one (unless the same should be Sunday, and
then on the Monday following), and that his body
be delivered to the surgeons, to be dissected and
anatomized. The judge may also, at his discre-
tion, direct the hanging of the body in chains, by
à special order to the sheriff; but this forms no
part of the sentence of the law.
After sentence, the malefactor is to be kept alone
in prison; and the short remainder of his forfeited
life sustained with only bread and water. The
judge, however, has the power of respiting the ex-
ecution, and relaxing the other provisions of the
law, upon good and sufficient grounds.
Petit-treason, is also a species of murder, and
happens either when a servant kills his master; a
wife, her husband; or a clergyman his bishop; to
whom they respectively owe faith and obedience.
To convict any one of petit-treason, two witnesses
are necessary; but one is sufficient to prove the
murder. A person convicted of petit-treason, is
sentenced to be drawn upon a hurdle, hanged, and
dissected,
2
CHAP. XXX.
OF COURTS OF CRIMINAL JURISDICTION.
CRI
The criminal law of England, we have observed,
is not vindictive, but merciful. It acts, indeed,
with a promptness, upon conviction, that is calcu-
lated to exhibit an awful example; but it also
manifests great tenderness and compassion by pro-
viding for the prevention of crimes. Like a kind
parent, it has more pleasure in warning its children
against offences, than in punishing them for their
transgressions.
Preventive justice consists in obliging those per-
sons whom there is good ground for suspecting of
future misconduct, to give, by finding pledges or
sureties for keeping the peace, or for their good
behaviour, full assurance to the public that they
will not offend against the laws. Any justice of
the peace may demand such security according to
his discretion; or it may be granted at the request
of any subject, upon cause being shewn.
When, however, a person has actually offended
against the law, he is liable to its penalties; but
not until his conduct has been inquired into before
the proper tribunal.
947
The laws of England have not only enacted what
punishment shall be inflicted for this or that
offence, but several courts are likewise instituted, in
which offenders are to be tried by learned judges,
appointed by the king, to expound the law and
pronounce its sentence.
The courts of criminal jurisdiction are those of
a public and general authority throughout the king-
dom: and such as are private and special, being
confined to particular parts of the realm.
The highest criminal court in the kingdom is the
high court of parliament. This court is supreme,
not only in making but also in executing laws. In
it the greatest offenders, whether peers or com-
moners, may, and frequently are prosecuted and
punished by trial on impeachment.
An impeachment is a presentment to the house
of lords, by the commons of Great-Britain, in par-
liament assembled ; the most solemn grand jury
in the kingdom.
A peer of the realm may be impeached for any
crime; and a commoner may be impeached before
the lords for a capital offence, as well as for high
misdemeanors.
The responsibility of the king's ministers to the
parliament, certainly exposes them to the caprice
and revenge of party; and renders them liable to
be harrassed with expensive and vexatious im-
peachments. On the other hand, there would be
great danger of their screening themselves from a
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348
4
just prosecution and merited punishment, by plead-
ing a pardon under the great seal, did not the law
wisely prevent such an abuse of the royal prero-
gative.
The king, therefore, cannot put a stop to the
lords proceeding to try the articles of impeach-
inent exhibited by the commons; it being enacted
by statute 12 and 13 W. III. ch 2, that no pardon
under the great seal shall be pleadable to an im-
peachment by the commons of Great-Britain in
parliament.
This inquisitorial power of the commons is un-
doubtedly one of the best securities the people
have of their liberties, and is obviously conducive
to the permanency of the various blessings of the
English constitution. For it is absolutely impos-
sible that gross abuses in any department of the
government, can long exist without exciting the
attention of the representatives of the people; and
the dread of inquiry by such a powerful body must
necessarily render all public men, whether ecclesi-
astical or civil, military or naval, extremely cau-
tious how they abuse their trust.
The next public criminal court to be noticed, is
the court of the lord high steward of Great-Britain,
instituted for the trial of peers indicted for treason
or felony, or for misprision of either. The office
of this great magistrate is very ancient; and was
formerly hereditary, or at least held for life, or
during good behaviour ; but it is now granted only
for the occasion, and it is necessary to bestow it
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349
upon a lord of parliament, else he is incapable to
try such delinquent peer.
When an indictment is found by a grand jury
of freeholders at the assizes against a peer for trea-
son, felony, or misprision, the king creates a lord
high steward pro hâc vice by commission, under
the great seal ; which recites the indictment so
found, and gives his grace power to receive and
try it according to the laws and customs of England.
The lord high steward then directs a precept to
a serjeant at arms, to summon the lords to attend
and try the indicted peer. Every lord present shall
vote in the trial of such peer, first taking the oaths
of allegiance and supremacy, and subscribing the
declaration against popery. But a majority cannot
convict, unless it consists of twelve or more.
It is disputed, whether the bishops have a right
to sit in this court and try indictments for treason,
&c. and there is no instance of their sitting on tri-
als for capital offences. However, they usually
withdraw voluntarily; first entering a protest, as-
serting their right to stay. But even in the high
courts of parliament they cannot vote in capital
cases.
There is a material difference between the trial
of a peer before the high court of parliament, and
one before the court of the lord high steward. In
the former, the collective body of the peers are the
judges both of law and fact; and the lord high
steward sits merely as chairman of the court, but
has a vote in virtue of his peerage. But in the court
350
of the lord high steward, which is held during the
recess of parliament, he is the sole judge of matter
of law, as lords triors are of the matter of fact; but
he cannot vote with the rest of the lords.
Another public criminal court is the court of
king's bench; which, on the crown side, takes cog-
nizance of all criminal causes, from high treason
down to the most trivial breach of the peace. Into
this court, also, indictments from all inferior courts
may be removed by writ of certiorari, and tried
either at bar or at nisi prius, by a jury of the
county out of which the indictinent is brought.
Again, there is the high court of admiralty, held
before the lord high admiral of England, or his
agent, called the judge of the admiralty. This
court takes cognizance of all crimes and offences
committed either upon the sea or upon the coasts,
out of the body or extent of any English county.
All proceedings in it must be determined by a jury,
agreeably to the laws of the land.
These four courts may be held in any part of
the kingdom ; and their jurisdiction extends over
crimes committed throughout the whole realm.
But there are criminal courts of local jurisdiction.
Such are the courts of oyer and terminer and ge-
neral gaol delivery, which are held before the king's
commissioners; among whom are usually two
judges of the courts at Westminster, These courts
are holden twice a year in every county of the
kingdom ; except the four northern counties,
where they sit only once a year. But in London
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351
and Middlesex they are open eight times a year.
in common language, the holding of these courts
is emphatically called the'assizes; the judges sitting
by virtue of five distinct authorities. That is, by
commission of assize ; of nisi prius; by commission
of the peace; of oyer and terminer ; and of general
gaol delivery.
The justices of the peace of the county wherein
the assizes are holden, are all bound by law to at-
tend them, on pain of being fined; in order to
return recognizances, and to assist the judges
such matters as lie within their knowledge and
jurisdiction.
The commission of oyer and terminer, is directed
to the judges and several others, or any two' of
them ; but the judges or serjeants at law 'only are
of the quorum ; so that the rest cannot act without
the presence of one of them. They are to inquire, ,
hear, and determine all treasons, felonies, and mis-
demeanors.
The commission of gaol delivery, empowers the
judge to try and deliver every prisoner who shall
be in the gaol when the judges arrive at the circuit
town; whenever or before whomsoever indicted,
or for whatever crime committed.
Upon urgentoccasions, the king sometimes grants
a special or extraordinary commission of oyer and
terminer and gaol delivery; confining it to those
offences which stand in need of immediate inquiry
and punishment.
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No man can sit as a judge of assize in his native
county ; although he may act therein as a commis-
sioner of oyer and terminer and gaol delivery.
The general quarter sessions of the peace is an-
other court of local jurisdiction. It must be holden
in every county once in every quarter of a year.
It is holden before two or more justices of the
peace, one of whom must be of the quorum.
The jurisdiction of this court extends to the try-
ing and determining of all felonies and trespasses
whatever. The justices, however, seldom, if ever,
try any greater offences than larcenies within the
benefit of clergy; and therefore murders, and
other capital felonies are usually referred, for a
more solemn trial, to the assizes.
In courts of justice there is no casting voice. At
the sessions, in case of an equality, the justices
ought to respite the matter till the next sessions.
In the upper courts there is no decision till a ma-
jority of the judges concur in their opinion.
The rolls or records of the quarter sessions are
committed to the custody of a special officer called
the custos rotulorum, who is always a justice of the
quorum. The king nominates this officer by his
sign manual. To him belongs the appointment of
the clerk of the peace; which office he is prohi-
bited from selling for money:
In most corporation towns, also, there are quar-
ter sessions holden before their own magistrates
within their respective jurisdictions. And besides
.
353
these, there are occasional petty sessions holden both
in towns and counties, between the times of the
quarter sessions, for the dispatch of business of
inferior moment; such as the licensing of ale-houses
and the like.
The next court to be mentioned is the court-leet,
or view of frankpledge; which is a court of record
held once a year, and not oftener, within a parti-
cular hundred, lordship, or manor, before the stew-
ard of the leet. It is the king's court granted by
charter to the lords of those hundreds or manors.
The original object of the court-leet, was the pre-
servation of the peace, and the chastisement of
those who disturbed it. All the freeholders of the
district are obliged to attend this court, if required;
being considered by the wise system of king Alfred,
as pledges for each other's good behaviour. But
this court has gradually degenerated into little
more than a name,
The coroner's court, is likewise a court of record,
to inquire, when any one dies in prison or comes to
a violent and sudden death, by what means he lost
his life.
The court of the clerk of the market, is incident
to every fair and market in the kingdom, to punish
misdemeanors therein. . The object of this juris-
diction is principally the superintendance of the
weights and measures. Formerly the standard
was committed to the care of the bishop, who usu-
ally appointed one of his clerks to inspect all abuses
354
1
of it. And hence this officer has obtained the
appellation of clerk of the market.
But there are, besides these several courts, others
of a private or special criminal jurisdiction; such
as,
The court of the lord steward, treasurer, or comp-
troller of the king's household, instituted 3 Hen.
VII. ch. 14, to inquire of felony by any of the
king's sworn servants under the degree of a lord.
The inquiry must be by a jury of twelve sober
men and discreet persons of the king's household.
The court of the steward of the marshalsea, which
inquires into and determines all treasons, blood-
shed, &c. &c. within the limits, that is, within two
hundred feet from the gate of any of the palaces
where the king shall abide.
Lastly, there are the criminal courts of the lord
high stewards of the two Universities of Oxford and
Cambridge, which have jurisdiction over their re-
spective members, under a trial by jury. A bill of
indictment must first be found by the grand jury at
the assizes ; and then the vice-chancellor may
claim the cognizance of it, which must be allowed
by the judges. The jury who tries the privileged
person must consist half of freeholders and half of
members of the University.
?
CHAP. XXXI.
OF THE PROCEEDINGS IN CRIMINAL CASES.
The proceedings in the courts of criminal juris-
diction are two-fold; summary and regular.
By a summary proceeding, is meant, the con-
demning or acquitting of an accused person, by
judges appointed by statute, who are thereby
empowered to inflict certain penalties on the
offender without the intervention of a jury. Thus
all trials of offences against the excise laws are to
be determined by the commissioners of excise, or
by justices of the peace. Again, the magistrates
have the power to punish in a summary way ac-
cording to act of parliament, all persons guilty of
swearing, drunkenness, &c. &c. To avoid, how-
ever, the abuse of this authority as much as pos-
sible, the law has made it indispensably necessary
that the party concerned should be summoned to
appear before the magistrate previously to any
trial of the fact, in order that he may be heard in
his own defence. Lastly, if a contempt be com-
mitted in any of the courts, the offender may
instantly be apprehended and imprisoned at the
discretion of the judges, without any further proof
er examination.
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356
But the regular and ordinary method of pro-
ceeding against a criminal, is, in the first place,
by arrest.
An arrest, is the apprehending of one's person,
that it may be forthcoming to answer an alleged
or suspected crime. But no one is to be appre-
hended unless charged with such a crime as will
at least justify the holding of him to bail, when
taken. An arrest may be made by a warrant.
This is to be granted when the party requiring it
makes oath concerning the crime committed. The
warrant ought to be under the hand and seal of
the justice who grants it; setting forth the time
and place of making and the cause for which it
is made; and should be directed to the constable,
or any private person named, requiring him to
bring the party either generally before any justice
for the county, or before him by whom it is granted.
In the latter case it is called a special warrant.
The issuing of general warrants to apprehend
all persons suspected of being guilty of the crime
specified therein, without specially naming such
persons, was declared illegal by a vote of the
house of commons, on the 22d of April, 1766.
Before that period, it had been the uniform prac-
tice of the secretaries of state from the time of the
revolution, to adopt this method on particular
occasions, without having in any instance been
censured, until Mr. John Wilkes was apprehended
by this authority, on the 30th of April, 1763.*
* See page 145.
357
Mr. Wilkes commenced an action in the court of
common pleas, against Robert Wood, Esq. under-
secretary of state, for seizing his papers under a
general warrant; and after a hearing of nearly
fifteen hours before lord chief justice Pratt and a
special jury, he obtained a verdict. His lordship
pronounced the warrant under which Mr. Wilkes
had been arrested, to be unconstitutional, illegal,
and absolutely void. A decision so in unison with
the general spirit of the British constitution, and
so favourable to the liberties of the subject, could
not fail to render his lordship extremely popular
throughout the realm. He consequently not only
received marks of the public gratitude from various
parts of the kingdom ; but his Majesty, who has in
various instances been the protector and promoter
of civil and religious liberty, signified his royal
approbation of his conduct by creating him a
peer of Great-Britain, by the title of earl Camden.
It is very remarkable, that, whilst in other
countries disputes with the government have gene-
rally ended in the increasing of tyranny; almost
every political struggle has in England terminated
in the extension of rational liberty. Is it possible
for the reflecting mind to contemplate this fact
without acknowledging the overruling providence
of God, who has in such numberless instances
turned those evils which he has permitted into the
general good of this nation? No one can imagine
that Mr. Wilkes, by publishing “a false, scan-
“ dalous, and seditious libel, containing expres-
1
358
S
“ sions of the most unexampled insolence and
" contumely towards his Majesty, &c. &c.” in-
tended to promote the public liberty; or that his
character and conduct ever justified the associating
of the sacred name of liberty with his own. Yet
had so shameless a paper as No. 45 of the North
Briton never appeared, so dangerous an instrument
as a general warrant might at this day have been
in the hands of a secretary of state, who might
have abused it to the oppression of the subject.
A justice of one county cannot issue a warrant
to apprehend a person in another ; but the warrant
of a justice of the peace in one county, as Worces-
tershire, must be backed, that is, signed by a
justice of the peace in another, as Norfolk, before
it can be executed there. The warrant, however,
of any of the justices of the court of king's bench,
extends allover the kingdom, and is dated England,
and not Berkshire, or any other particular county.
But arrests may be executed by officers without
warrant. A justice of the peace may apprehend
any one committing a breach of the peace in his
presence. The sheriff, too, and the coroner, may
apprehend any felon within the county without
warrant. So, likewise, the constable has great
original authority; and may without a warrant
arrest any person for a breach of the peace: and
in cases of felony actually committed, may break
open doors to arrest the felon; and even kill him
if he cannot be otherwise taken. And should the
constable be killed in such attempts to arrest a
359.
1
felon, it is murder in all concerned. Yet, if an
officer arrest under a warrant, it is necessary that
the warrant be in all respects good; otherwise it
is not murder in those who kill the officer in
executing it.
Thus, in the case of Sir Henry
Ferrers' servant, who was charged with murder
and manslaughter, for having killed the officer
who attempted to arrest his master : the warrant
terming Sir Henry a knight, whereas he was a
baronet, it was decided in court not to be a good
warrant, and the prisoner was acquitted accord-
ingly.* Lastly, watchmen may by virtue of their
office arrest all offenders, and especially night-
walkers, and commit them to custody until the
morning
As an encouragement to all persons to exert
themselves in the apprehending of criminals, it is
enacted by law, that any person taking and prose-
cuting a felon to conviction, shall receive from the
sheriff a reward of £40. and shall be intitled to the
horses, furniture, arms, money, and other goods
taken upon the person of the robber; with a reser-
vation, however, of the right of any person from
whom the same may have been stolen. And by va-
rious statutes, such persons as apprehend and con-
vict felons guilty of burglary, housebreaking, horse-
stealing, and those who are found at large during
the term for which they were ordered to be trans-
ported, shall be exempted from serving all parisha
A
* De Lolme.
360
offices; and shall receive different specific sums of
money, from £10. to £40. according to circum-
stances.
When an offender is arrested, he is taken before
a magistrate, who takes down in writing the
examination of the prisoner, and the information
of those who bring him. If the suspicion enter-
tained against the prisoner be groundless, he must
be immediately discharged: but if otherwise, he
must either be committed to prison or admitted to
bail; that is, he must put in sureties for his ap-
pearance to answer the charge brought against him.
The party accused ought to be admitted to bail
in all offences against the common law or any acts
of parliament that are below felony; unless the
bail be prohibited by some special statute. But
no justice of the peace may admit to bail upon an
accusation of treason, nor of murder ;-nor in
cases where bills of indictment are found for man-
slaughter ;-„nor may he bail such as having been
cominitted for felony, have broken prison ;--nor
persons outlawed ;-nor such as have abjured the
realm ;-nor persons taken in the act of felony ;-
nor persons charged with arson ;-nor excommu-
nicated, persons ;---nor in many other cases of a
more doubtful nature.
If the case be not bailable, or the party cannot
find sufficient security, he is to be committed to
the county gaol, by the mittimus of the justice, or
warrant under his hand and seal, containing the
cause of his commitinent. There he is to be
361
kept in safe custody until delivered by due course
of law.
This commitment is not intended as a punish-
ment, but only as an indispensable mode of securing
the person of the offender against the day of trial.
During his confinement he ought to be treated
with all possible humanity, consistently with the
responsibility of the gaoler. He should not be
unnecessarily loaded with irons ; nor suffer any
other hardship but what is absolutely inseparable
from such a loss of personal liberty.
The law considers every man as innocent until a
jury of his countrymen have declared him to be
guilty. A humane and conscientious gaoler, there-
fore, will guard against having his feelings hardened
by the constant witnessing of so many objects of mi-
sery; and whilst he diligently attends to the charge
given him to keep his prisoners safely, he will bear
in mind that they may possibly be clear from the
crimes with which they are charged. He will not
needlessly thrust them into the inner prison, nor
make their feet fast in the stocks; but will shew
a compassionate regard to their persons. Where
he observes any mental wounds inflicted either by
the strokes of a guilty conscience, or by the violence
of oppression, he will tenderly wash their stripes
with the tears of sympathy and kindness: and
when the magistrates send to let the prisoners go,
he will suffer them to depart and go in peace, with-
2 A
362
out exacting from them any more fees than what:
are just and equitable.
If a magistrate should refuse or without cause
delay to bail a person who is bailable, he breaks-
the law; and greatly offends against the liberty of
the subject. For both the common law and
various acts of parliament require him to admit to
bail all persons whose offences are within the
bounds prescribed. Yet, to prevent any magis-
trate from taking excessive bail on the one hand,
or insufficient bail on the other, he is liable in
either case to be fined, whenever, forgetting the
duties of his office, he is influenced by his own
feelings instead of being guided by the principlex
of reason, justice, and humanity.
CHAP. XXXII.
THE SAME SUBJECT CONTINUED.
After the commitment of an offender, follows
his prosecution, or formal accusation. This is
either upon a previous finding of the fact by an
inquest or grand jury, or without such previous
finding. The former way is either by presentment
or indictment.
presentment, generally taken, is a very com-
prehensive term ; including not only presentments
A
363
properly so called, but also inquisitions of office,
and indictments by a grand jury.
A presentment, properly speaking, is the no-
tịçe taken by a grand jury of any offence from
their own knowledge or observation, without any
bill of indictinent laid before them at the suit of
the king; as the presentment of a nuisance, a
libel, and the ļike.
An indictment, is a written accusation of one or
more persons of a crime or misdemeanor preferred
to, and presented upon oath by, 'a grand jury.
The trial by jury is not only the privilege most
valued by, but also the best safeguard of every
thing dear to, Englishmen. This invaluable bless-
ing is very ancient; and certainly derived from
those northern tribes, who extended it to the
people whom they subdued. Such, at least, has
been the enviable condition of this country. For
the best writers on the English constitution trace
the origin of juries to the Saxons, who established
themselves in this island after the final retreat of
the Romans. But whilst other conquered nations
gradually lost the advantages of a trial by jury,
England improved upon and brought the original
institution to much greater perfection.
The English grand jury is the only institution
of the kind in Europe; and when duly executed,
the best calculated for preventing the abuses of
power in the prosecution of criminals, that was
ever known in the annals of the world.
2 A 2
364
!
The division of the one original jury, into grand
and petty, seems to have taken place in the interval
between the establishment of itinerary judges in
the twenty-second year of the reign of Henry II.
and the magna charta of king John.
The great men of the county at first bribed the
sheriff to omit them, and to return others of infe-
rior note to serve on the jury; and thus withdraw-
ing from an honourable office, its duties devolved
upon the smaller proprietors. At length, a sense
of dignity tended to perpetuate an alteration which
probably began in pride and sloth.* For the
tenants in capite, and great landholders, gradually
declined if not disdained to mix in juries with
their inferiors in rank: who, nevertheless, in all
Jegal arrangements, were reckoned as their peers.
To this distinction of rank, it is probable'we owe
an apparently accidental separation of the primary
jury, into those two important branches which so
eminently enhance the value of this adinirable.
mode of trial.
So little, however, seems to be ascertained by
antiquarians respecting the introduction of the
trial in criminal cases by two juries, that although
it is one of the most beneficial, yet its origin is
+
* For much information on the subject of juries, the Author
is indebted to “The Security of Englishinen's Lives" (supposed
to have been written by lord chancellor Somers); “ to which is
s prefixed, A Sketch of the History of Juries, by a Barrister."
-Wilkie.
365
certainly one of the most obscure and inexplicable
parts of the law of England. But the pride and
sloth of the richer orders appear to have been the
hinges upon which these folding doors, that now
render our persons and property so secure against
the hands of violence and injustice originally turned.
The grand jury, then, is constituted of free-
holders and gentlemen of the first' figure in the
county, whom the sheriff is bound to return to
every session of the peace, and to every commis-
sion of oyer and terminer and of general gaol deli-
very. It consists of twenty-four good and lawful
men of the county, some out of every hundred ;
and not less than twelve, nor more than twenty-
three, are to be sworn, to inquire, present, do, and
execute all those things which on the part of our
lord the king shall be then and there commanded
of them.
The duty of the grand jury is not only to indict
all who shall appear to them to be criminal, but
also to protect every innocent person from that vex-
ation and danger which might be the effect of
malice and tyranny combined. In order to oblige
these important juries to a more conscientious dis-
charge of this two-fold duty, our ancestors appoint-
ed the following oath to be taken, both by the fore-
man and every other meinber of the grand inquest :
“ You shall diligently inquire, and true present-
"ment make, of all such articles, matters, and
things, as shall be given you in charge. And of
s all other matters and things as shall come to your
366
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1
“ own knowledge touching this present service.
“ The king's council, your fellows', and your own,
you shall keep secret. You shall present no
person for hatred or malice ; neither shall you
“ leave any one unpresented for favour or affection,
“ for love or gain, or any hopes thereof; but in alſ
things you shall present the truth, the whole
truth, and nothing but the truth, to the best of
your knowledge. So help you God.”
There is a common, but erroneous 'notion, con-
cerning the duty of grand juries; which if acted
upon, will in time destroy all the benefit we can
expect from so wise an institution, Some have
affirmed it for law, that the grand jury is neither
to make so strict an inquiry into matters before
them, nor to look for so clear an evidence of the
crime as the petit jury; but as their presentments
are to pass a second examination, they ought to pre-
sent an indictment upon bare probabilities, where-
ás, when a prosecutor suggests that any man is
criminal, and ought to be indicted, it belongs to
the grand jury to hear all the proofs he can offer,
and to use all other means in their power to ascer-
tain the truth of such a suggestion : and surely
à grand jüryman who swears to present nothing but
the truth, ought not to be satisfied with any thing
short of it. Therefore, the grand jury must have
ás clear a proof to justify.them in finding a true
bill of indictinent, as the petit jury require to find
a verdict of guilty. For the real difference between
the two juries is this, that the one hears only the
367
:
evidence on the part of the prosecution ; whereas
the other hears the prisoner's defence and witnesses
also, which may very much weaken, or totally de-
stroy, the validity of the prosecutor's accusation.
The grand jury being sworn; the judge delivers to
them his charge, remarking on the different subjects
of their inquiry, reminding them of the trijë nature
of their office, and exhorting them faithfully to dis-
charge their duty, both on the part of the public,
and of the individuals whose cases shall be brought
before them. They then retire i to what is called
the grand jury chamber, to sit and receive indict-
ments, which are preferred to them in the name of
the king, at the suit of a private prosecution ; on
whose behalf only they are to hear any evidence
:
• The finding of an indictment is nothing more
than the opinion of the grand jury that the facts
charged have been sufficiently proved before them
to justify their calling upon the party to answer
the accusation:
The grand jury being sworn to inquire for the
body of the county, cannot regularly take cogni-
zance of any thing done out of it, unless specially
authorized by an act of parliament. And in gene-
ral, all offences must not only be inquired into, but
tried also in the county in which they were com-
mitted. Bigamy, however, may be tried either in
the county where the offence was committed; or
where the offender is apprehended.
If the grand jury, after having heard the evidence,
are of opinion that the accusation is groundless,
•
368
they indorse the bill with the words “ not a true
"bill,” or “not found;" and the party is discharged
accordingly. But a new indictment inay be pre-
ferred afterwards to a subsequent grand inquest.
But supposing the grand jury be satisfied of the
truth of the accusation, they indorse upon it "a
“ true bill;" the indictment is then said to be found,
and the party stands indicted.
The law of England, however, is so tender of
the lives of its favoured inhabitants, that no man
can be convicted at the suit of the king of any ca-
pital offence, but by the unanimous' voice of twenty-
four of his equals, who must also be his neighbours.
For twelve at least of the grand jury, must in the
first place assent to the accusation of the party ;
and afterwards upon his trial, the whole petit jury
must agree in finding him guilty.
How necessary grand juries are in the due ad-
ministration of impartial justice, may be learned
from the vile policy of Empson and Dudley, the
two wicked ministers of Henry VII. who craftily
contrived to abolish them. These corrupt states-
inen by their evil practices prevailing upon parlia-
ment to sanction their iniquity by a law, became
the hateful instruments of the most cruel oppres-
sions. But for this and other malpractices, they
afterwards fell the victims of popular resentment,
being deservedly beheaded August 28th, 1510.
The indictment being found, is delivered pub-
licly into court, and the clerk of the assize reads
aloud, “ A true bill against A. B. for felony, &ç.
i
369
i
&c.” and vice versa, if the grand jury should not
find the bill.
An indictment must have a precise and sufficient
certainty, specifying the christian name, surnaine,
and addition of the state and degree, mystery,
town or place, and the county of the offender, in
order to identify his person. · And to ascertain
clearly the time and place of the offence, the day
and township must be named wherein the fact was
committed. The offence itself also must be stated
with clearness; and in some crimes, particular
words of art must be introduced, to express the
exact idea which the law entertains of the offence.
Thus in treason, the facts must be laid to be done
“ treasonably, and against his allegiance," other-
wise the indictment is void. So, also, in indict-
ments for murder, it is necessary to say, that the
party“ murdered,” not “ killed,” the deceased.
And so of other specific crimes.
Lastly, it is sometimes essential to a good indict-
ment, that the value of the thing which is the sub-
ject or instrument of the offence be expressed.
This is neceesary in larcenies, to ascertain whether
it were grand or petit larceny; and whether the
criminal be entitled or not to the benefit of clergy.
In homicides of all sorts, it is likewise requisite,
because the weapon of destruction is forfeited to
the king, as a deodand,
But there is a method of proceeding at the suit
of the king, without a previous indictment or
870
präsentment by the grand jury; and that is by way
of information.
Informations are of two sorts ; first, such as are
partly at the suit of the king, and partly of the sub-
ject; and secondly, those that are in the name of
the king alone. The former are usually brought
upon penal statutes; which inflict à penalty upon
conviction of the offender; one part to the use of
the king, and another to the use of the informer.
The informations exhibited in the name of the
king alone, are also of two kinds; first, those that
are truly and properly his own suits, and filed ex
officio, by the attorney-general; secondly, those in
which he is the nominal prosecutor, yet it is on the
accusation of some private person or common in-
former. These informations are filed by the king's
coroner and attorney in the court of king's bench.
The objects of the king's owu prosecutions, arë
properly such enornious misdemeanors as directly
tend to disturb and endanger his government; or
to molest and affront him in the discharge of the
regular duties of his royal station. In such cases,
the law has wisely given the power to the crown,
of immediatè prošécution, to avoid the danger that
would accrue from the delay of applying first of all
to a grand jury to find a bill of indictment.
The objects of those informations that are filed
by the master of the crown office, upon the com-
plaint or relation of a private person, are any gross
misdemeanors, riots, batteries, libels, and other
immoralities of an atrocious kind, not peculiarly
371
:
i
tending to disturb the government, but which, oh
account of their enormity or dangerous example,
deserve the most public censtirė.
When an information is filed in eithém of these
ways, it must be tried by a petit jury of the cötinty
where the transactiòn took place. And ff. the
defendant be found guilty, the court of kingºs bench
must be resorted to for his punishment.
A writ of quo warranto, is another species of
information, usually made use of to try the civil
rights of such as hàve intruded into any office or
franchise. But an information in the nature of
quo warranto being merely a civil proceeding, the
court of king's bench will grant a new trial,
although the verdict be given for the defendant.
The bill of indictment being found, the offendér
is immediately arraigned thereon, if hè have beeii
previously in safe custody. But should he be at
large, having fled for it, or by any means secreted
himself, then process is to be issued out against him.
The regular process for any petty misdemeanor
or on a perral statute, is a writ of venire facias;
which is á summons to cause the party to appear,
as the indictment cannot be tried if the offender
be 'not personally present in court.
If it appear by the return to the writ of venire,
that the party has lands in the county, then a
distress infinite shall be issued froin time to time
till he make his appearaiice. But if he have no
lands, the sheriff shall be commanded by writ of
capias, to take his body, and have him at the next
972
?
assizes. And if he cannot be taken upon the first
capias, a second and a third shall issue, called an
alias and a pluries .capias. But on indictments
for treason or felony, a writ of capias is the first
process.
Should the offender, after the several writs have
issued in a regular number, abscond, he may be
exacted, proclaimed, or required to surrender, at
five county courts; and if he be returned quinto
exactus, and do not appear at the fifth exaction,
then he is to be adjudged outlawed, or put out of
the protection of the law. He then becomes inca-
pable of taking any of its benefits, either by bring-
ing actions or otherwise.
Outlawries upon indictments for misdemeanors,
are punished like outlawries upon civil actions,
with forfeiture of goods and chattels. But an
outlawry in treason or felony, aniounts to a con-
viction and attainder of the offence charged in the
indictment, as much as if the criminal had been
found guilty by a petit jury.
Formerly, it was no crime to kill an outlawed
felon, as he might be knocked on the head by
any person who met him. But now, with much
more humanity, it is holden, that if any man
wilfully and wantonly kill an outlaw, he is guilty
of murder, unless it happen in an attempt to
apprehend him. It is, therefore, a vulgar error,
that any one is at liberty to put an outlawed per:
son to death.
1
373
An outlawry may be reversed by a writ of
error; for if a single point be omitted or miscon-
ducted, the whole outlawry is illegal. Upon a
reversal, the party accused is allowed to plead to
and defend himself against the indictment.
Writs of certiorari facias, are writs usually had
before trial, after the indictment is found, to cer-
tify and remove it, with all the proceedings thereon,
from any inferior court of criminal jurisdiction,
into the court of king's bench; which is the sove-
reign ordinary court of justice in criminal causes.
And this may be done where it is surmised that a
partial or insufficient trial will probably be bad in
the court below, &c.
Indictments found by the grand jury against a.
peer, or privileged person of the Universities, must
in consequence of a writ of certiorari, be certified
and transmitted into the court of parliament, or
to the courts established by law in the Universi-
ties, as the case may be, to be there respectively
tried and determined.
Upon the appearance of the offender in court,
he is immediately to be arraigned on the indict-
ment; or, in other words, the prisoner is to be
called to the bar of the court, to answer to the
charge brought against him. He is to be called
to the bar by his christian and surnames ; and the
court has no authority to order his irons to be
taken off till he has pleaded, and the jury are
charged to try him.
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374
The prisoner appearing at the bar, iş called
upon by his name to hold up his right hand, in
order that he may own himself by this act to be
of thạt name by which he is called, and thus
identify his person from the crowd around him.
But if he confess that he is the person named, it is
sufficient.
The significant act of holding up the right hand,
was also originally intended to answer another
very important purpose. It will be hereafter
şeen, thąt there are what are called clergyable
offences; that is, such as would be punished with
death upon conviction, if the prisoner were not
privileged to beg his clergy. Laymen, however,
can avail themşelyes of the benefit of clergy only
once; and formerly they were used to be burned
on the brawn of the thumb of the right hand,
ipstead of suffering a capital punishment for the
first offence. The culprit, therefore, was desired
to hold up his hand, in order that the court might
know whether he had ever been convicted before
of any clergyable crime. This reason, however,
is now done away, by a statute of the king, which
commutes the burning on the hand for whipping,
imprisonment, transportation, or the like, at the
discretion of the court.
The indictment is then to be distinctly read to
him in the English tongue, that he may fully
understand the charge that is brought against hiņ.
He is then asked, whether he be guilty of the
crime whereof he stands indicted, or not guilty.
375
t
A criminal when he is arraigned, either stands
mute, or confesses the fact; or pleads to the indict-
ment. And he is understood in law, to stand
mute, when he either makes no answer at all, or
answers foreign to the purpose; or having pleaded
guilty, refuses to put himself upon his country.
If he say nothing, a jury is to enquire whether he
be obstįnately silent, or dumb by the visitation of
God. If the latter should appear to be the case,
the court shall proceed to trial ; but it has never
yet been decided, whether sentence of death can
be passed against such a person. But if he be
ſound obstinately nute, it has long been held that
this is equivalent to conviction. And the prisoner
shall receive the same judgment and execution in
all such cases, as is if he had been convicted by a
verdict or confession of the crime. Two instances
occurred in the last century, of persons who
refusing to plead, were in consequence condemned
and executed, agreeably to the statute 12 Geo. III.
ch. 20. One was at the Old Bailey, for a murder,
in 1777; the other was for burglary, at the sum-
mer aşsizes at Wells, in 1792.
If the prisoner confess the crime charged in the
indictment, the court has nothing to do but to
award judgment. That it was customary among
the Romans to punish a criminal upon his own
confession, inay be inferred from the conclusion of
Cato's celebrated speech, which decided the Cata-
376
linian conspirators.* But such are the tenderness
and compassion of a British judge, that he is
always very unwilling to receive and record the
confession of the prisoner; and therefore generally
advises him to plead to the indictment, and avail
himself of the forms of the law, which deems every
man innocent until he is proved to be guilty. But
when a prisoner is conscious of his guilt and is
brought to real contrition of heart, he will probably
be fearful of adding to his sin by telling a known
falsehood in pleading not guilty. In all events,
after conviction, a true penitent, if he be really
guilty of the crime charged, will certainly make
an unreserved confession of the truth both to God
and man, by an acknowledgment of the justice of
his punishment.
It may not be amiss in this place, to correct a
popular error respecting what is called, turning
king's evidence, by an accomplice in any crime.
It is too generally believed, than an accomplice
who voluntarily offers to give evidence against his
companions in guilt, is entitled to a pardon. This
is a great mistake. It is true, that justices of the
peace have usually encouraged an accomplice to
make a full discovery, and to give his evidence
without prevarication or fraud ; by'intimating, at
least, that he himself shall not be prosecuted.
* “- De confessis, sicuti de manifestis rerum capitalium,
more majorum supplicium sumendum."
Sallust. Bell. Catil.
A
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877
But in the case of Mrs. Rudd, lord. Mansfield
clearly laid it down, that no authority is given to
a justice of the peace to pardon an offender, and
to tell him he shall be a witness at all events
. against others. A magistrate may encourage the
liope that such a witness may escape punishment;
but the judge has a discretionary power to exempt
a king's evidence from prosecution or not, as he
sees fit. And, in fact, upon a trial some years
ago at York, before judge Buller, the accomplice,
who was admitted an evidence, denying in court
all he had before confessed, occasioned the pri-
soner to be acquitted: whereupon the judge ora
dered an indictment to be preferred against this
accomplice, for the same crime; and upon his own
previous confession and other circumstances, he
was convicted and executed.*
With respect, however, to those persons to
whom the king, by special proclamation, in the
gazette or otherwise, has promised his pardon,
lord Mansfield says, that they have a right to it.
When the prisoner peither stands mute nor con-
fesses the fact, he is then said to plead, or make
his defence on the arraignment. This is done
either by a plea to the jurisdiction, or a demurrer,
or a plea in abatement, or a special plea in bar,
or by the general issue.
A plea to the jurisdiction, is where an indict-
ment is taken before a court that can take no cog-
► Professor Christian,
2 B
378
Bizarice of the offence. As if a man be indicted
för treason at the quarter sessions: in this and
šimilar cases he may except to the jurisdiction of
the court without answering at all to the crime
alleged....
A demurrer to the indictment, is when the
crime charged is allowed to be true; but the pri-
soner joms issue upon some point of law in the
indictment, by which he asserts that the fact as
stated is no fèfony, treason; or whatever the crime
is said to be. But this plea is not often used,
because the same advantages may be taken in
arrest of judgment upón conviction.
A plea in abätement, is principally for a misno-
mner, a wrong name; or a false addition to the
prisoner: as, if John Jones, gentleman, is indicted
by the name of Thomas Jones, esquire, he may
plead that he has the name of John, and not of
Thomas; and that he is not an -ėsquire, but a
gentleman. But this is ia mere délay, which
avails the prisoner but little, ás a new bill of
iódicement may be framed, corresponding with
the name and degree which he has avowed belong
to him. But a far more substantial kind of plea;
is a special plea in bar, which affects the merits of
the indictment, and gives a reason why the pri-
soner ought not to put himself upon his trial for
the crime with which he is charged.
Spécial pleas in bar, are of four kinds.
The plea of a former acquittal. It being a
aniversal maxim in the English law, that no mart.
879
shall be brought into jeopardy of his life more
than once for the same crime.
A second plea in bar, is a former conviction for
the same identical crime; although no judgment
was ever given, or perhaps ever will be. And this
is a good plea in bar to an indictment. But it
must be observed, that both these pleas in bar
must be upon a prosecution for the same identical
act and crime.
Again, a former attainder, is a good plek in bar,
whether it be for the same or another felony. For
wherever a man is attainted of felony by judgment
of death, either upon a verdict or confession by
outlawry, he may plead such attainder in bar to
any subsequent indictment or appeal, for the same
or any other felony. And this, because the pri-
soner is dead in law by the first attainder, his
blood is already attainted, and he has forfeited all
that he had. But there are exceptions to this
general rule, which can here be only thus hinted at.
The last plea in bar to be mentioned, is a par-
don; which at once destroys the end and purpose
of the indictment, by remitting that punishment
which the prosecution is calculated to inflict. It
is of great importance to plead a pardon in bar,
or in arrest of judgment, before rather than after
sentence is past ; because, by stopping the judg-
ment, it prevents the corruption of blood by the
attainder. For the blood once corrupted by an
attainder, cannot be again restored but by an act
of parliament.
>
1
2 B 2
380
But the only plea upon which the prisoner cair
receive his final judgment of death, is the general
issue, or plea of not guilty. In indictments of
felony and treason, the prisoner must plead the
general issue of not guilty, as he cannot put in
any special matter by way of plea, but only give
it in evidence; of which the jury will take notice,
and give a verdict accordingly.
The prisoner having pleaded not guilty, the
clerk of the arraigns on behalf of the crown replies
that the prisoner is guilty, and that he is ready to
prove him so.
And thus the king and prisoner
are at issue. The prisoner is then asked how he
will be tried; who answers, “By God and the
country;" to which the clerk replies, “ God
ri send thee a good deliverance:” a petition very
expressive of the compassion of the law, which
had rather the innocence of the prisoner should
appear, than that his conviction and punishment
should be the event of his trial.
.. But if the prisoner refuse to put himself upon
his trial in the usual form, his obstinacy is consi-
dered as a confession of his guilt, and he is con-
victed of the felony, &c. accordingly.
CHAP. XXXIII.
"THE SAME SUBJECT CONTINUED.
The prisoner having been arraigned, and no
other plea in bar of further proceedings estab-
lished, he must take his trial on the general issue,
or plea of “not guilty.” In other words, the
facts charged in the indictment inust be submitted,
to the impartial examination and decision of a
jury. We are 120w, then, advanced to a very
important and interesting stage of the business.
To behold a fellow-subject standing in open court
accused by twelve of the first men in the county of
à crime, which, if proved in his presence, wil]
deprive him of his property, or his liberty, or his
life, or all ; to see the king in the person of the
judge arrayed in the robes and surrounded with
the insignia of his office, sitting to distribute jus-
tice with an impartial hand; to mark the alterna-
ting forebodings of the countenances of a crowded
audience, arising from the accusation of the coun-
sel and the testimony of the witnesses; to notice
the patient attention of the jury to all the evidence
for, as well as against, the prisoner; how eagerly
they drink in every syllable of his defence, and
382
1
with what caution and tenderness they return
their verdict; to observe the trembling anxiety
with which the unhappy prisoner waits for the
dreadful or elating words that are to decide his
doom, is a scene so solemn and affecting, that no
feeling person can survey it without the most
lively emotions !
We shall now enter more fully into the consi.
deration of the trial by jury.
In the superstitious age of our Saxon ancestors,
several very exceptionable modes of trial were
ignorantly had recourse to in order to ascertain
the guilt op innocence of the accused; it being a
general opinion at that time, that God would
always miraculously interpose to save the innocent.
This absurd and presumptuous notion, however,
of the immediate interference of Divine Providence
jn deciding the guilt or innocence of any one by
ordeals, or the trials by fire and water, and after:
wards by the trial of battle, was at length expelled
from the minds of our forefathers; who, as they
became more enlightened, adopted the superior
mode of trịal by jury,
The origin of this essential part of our constitu-
tion, is unquestionably very ancient, and derived,
according to some authors, from those barbarous
tribes which every where invaded the Roman
provinces, and carried with them their natural
love of freedom Mr. Hume, however, is of
opinion, that the first lineaments of the English
jury, originated in the inventive mind of the saga-
cious king Alfred. The division of all England
.
7
383
by this extraordinary prince, into counties, hun-
dreds, and tithings, was an institution admirably
calculated for restraining a licentious people, and
administering impartial justice amongst all ranks
throughout the kingdom. This wise system made
every man a surety for the good behaviour of his
neighbour ; and the method which it adopted for
the decision of all causes, " deserves,” says Mr.
Hume, “to be noted as being the origin of juries.”
It is impossible, however, to fix the precise time
at which this palladium of English liberty origi-
nated, or to state the exact circunstance from
which it at first sprang. To find out its real
source, seems alınost as hopeless an undertaking
as the attempt to discover the head of the Nile.
Probably, the trial by jury arose, as the famous
Egyptian river most likely does, from several incon-
siderable springs. Certain it is, that in flowing
down to us it met with many checks and interrup-
tions. But it is generally allowed, that it brake
through all impediments, and that its channel was
widened and deepened after the conquest; that it
ran in a stronger current from the reign of the
second to that of the third Henry, gradually swell-
ing from that period to its present height; and by
overflowing our country, has rendered it the fertile,
the happy, the envied land of freedom.
Since the abolition of the superstitious modes of
decision, the only forms of trial in criminal cases
amongst us, have been that by the peers of Eng-
land, in the high court of parliament; and the trial
of commoners, by jury. This latter form of trial,
1
384
indeed, is extended even to the nobility, in all
criminal cases; treason, felony, and misprision
of these, only excepted.
There is a very important advantage in the Eng-
lish trial by jury in criminal cases. For, as in times
of violence, the subject may justly apprehend more
danger in suits between the king and him, than in
disputes between one subject and another; the law
has wisely placed the strong and two-fold barrier of
a previous presentíent and a subsequent trial by
jury between the liberty of the subject and the
prerogative of the crown. In short, no man can
bę tried, even by a jury of his equals, for any
crime, until twelve of his fellow-subjects have
first of all agreed, upon oath, that he ought to be
called upon to answer the matter charged against
him in the indictment; and even then he is shielded
from the arm of vengeance till the petit jury pro-
nounce him guilty. Thus is the subject, as it
were, hernietically sealed and guarded against
the “insolence of office" on the one hand, and the
insidious machinations of private revenge on the
other.
But it is time to take a view of the proceedings
in a criminal trial by jury.
When the prisoner has pleaded not guilty, and
put himself upon his country for trial, the sheriff of
the county is to return a panel of jurors, who must
be freeholders, indiscriminately taken, of the
county in which the crime was committed.
But persons indicted for smaller misdemeanors, ,
after having pleaded not guilty, may traverse the
!
383
indictment. In that case they usually give secu-
rity to appear at the next session or assize, and
then and there to try the traverse, giving notice to
the prosecutor of the same.
All
persons, however, indicted for high treason
and misprision of treason, shall have not only a
copy of the indictment, but a list of all the vit-
nesses to be produced against them, and of the
jurors impanelled, with their professions and
places of abode, delivered to them ten days before
the trial, and in the presence of two witnesses;
that they may be the better prepared to make
their challenges and defence; and to bring forward
any thing which they may know of the witnesses
that is likely to destroy the credibility of their
testimony. A striking instance, that shews with
what care the law has guarded the life and liberty
of the subject against the power of the crown.
When the trial is called on, the jurors are to be
sworn, as they appear, to the number of twelve,
if they are not challenged by the parties.
Challenges may be made either by the king or
the prisoner; and either against the whole array or
against any individual juror, for the very same
reasons as in civil causes. And it will here be
seen, that it is not without reason that our English
laws are so celebrated for their tenderness and
compassion to all who stand arraigned at the bar
of justice. For the prisoner is allowed in all
capital cases, peremptorily to challenge a certain
number of jurors, without assigning any cause
1
386
whatever. He is permitted to do this, that he
may not be tried by any one man against whom he
may have conceived a prejudice; besides, if he
were obliged to state the cause of his challenge,
the juror objected to might feel a resentment
against the prisoner, should the court not allow
him to be set aside. And as a further proof that
the law is guided by humanity to the prisoner in
this provision, it enjoins that the king shall chal-
lenge no juror without assigning a reason, to be
allowed by the court,
It is evident, however, that this great indul-
gence affords the prisoner an opportunity of chal-
lenging every juror, till it were impossible to try
him. To remedy this inconvenience, therefore,
the law has fixed a reasonable boundary; so that
if a prisoner persist in challenging peremptorily
more than thirty-five (that is one short of three
juries), or in felonies more than twenty jurors, the
law concludes that he has no intention to be tried
at all. In which case, the prisoner is considered
as standing mute, and sentenced as one convicted
on his own confession. If from any cause a suffi-
cient number of jurors cannot be had from the
original panel, a tales may be awarded as in civil
cases, till the number of twelve is sworn - well
"and truly to try, and true deliverance make,
* between our sovereign lord the king, and the
prisoner whom they have in charge, and a true
• verdict to give, according to their evidence.
Before, however, a juryman is sworn, he is desired
387
to
“ look at the prisoner;" not that he may gratify
a wanton curiosity, but that the unhappy situation
of the culprit may so far excite his compassion, as
shall induce him not only to do justice between
him and the king, but to lean to the side of mercy
as far as he can consistently with his solemn oath,
if any doubt of his guilt arise in his mind.
The jury being sworn, the indictment is generally
opened by the counsel for the crown or prosecu-
tion; who having stated the leading facts to the
jury, endeavours to substantiate them by the wit-
nesses, whom he calls upon to give their evidence
upon oath,
:
In a trial for any capital crime, upon the gene-
ral issue, a prisoner is not allowed any counsel to
plead for him ; and the reason assigned, is, that to
convict a prisoner, the evidence ought to be so
clear, as not to be capable of being controverted.
In matters of law, however, arising on the trial,
the prisoner is entitled to the assistance of counsel
and the court never scruples to allow him one to
instruct him what questions to ask, or even to ask
questions for him relative to matters of fact. In
short, the learned judge himself is counsel for the
prisoner, as the law and his oath oblige him to see
that the proceedings against him are legal and
strictly regular.
It is obvious that the assistance of counsel might
be withheld by superior influence in the case of
state criminals: the legislature, therefore, has
wisely enacted, that persons indicted for such high
388
1
i
treason or misprision thereof as works a corrup-
tion of blood (except for treason in counterfeit-
ing the king's coin or seals) may make their full
defence by counsel, not exceeding two, to be
named by the prisoner and assigned by the court
or judges. And the sarne indulgence is extended
to parliamentary impeachments for high treason.
There are a few leading points wherein a differ-
ence is made between civil and criminal evidence;
but for the most part, the doctrine of evidence is in
both cases the same.
In cases of high treason, petit treason, and mis-
prision of treason, two lawful witnesses are in
general required to convict a prisoner; unless he
shall willingly and without violence confess the
same. In prosecutions for high treason, the law
requires that the overt act or acts be proved to
have been committed at the place specified in the
indictment. With respect to two witnesses being
necessary in most cases to prove the same overt
act, it may be observed, that if one witness prove
one overt act, and another witness prove another
overt act of the same species of treason, that is suffi-
cient proof of the crinie charged, according to the
requisition of the statute.* In almost every other
accusation, one positive witness is sufficient.
In consequence, however, of the king's life hav-
ing been brought into iminivent danger by a ma-
* See lord Ellenborough's luminous summing up upon the
trjal of colonel Despard.
389
46
niac shooting at him in the theatre, it was very
properly enacted, 39 and 40 Geo. III. ch. 93,
" that in all cases of high treason where the overt
act or acts shall be assassination or killing of the
king, or any direct attempt against his life, &c.
“ the person or persons charged with such offence,
“shall and may be indicted, arraigned, tried and
* attainted in the same manner, and according to
“ the same course and order of trial in every re-
"spect, and upon the like evidence, as if such
person or persons stood charged with murder.
* And judgment shall be given and execution
is done as in other cases of high treason, any law,
*statute, or usage to the contrary notwithstanding."
In indictments for perjury, likewise two wit-
nesses are required to convict the accused. Again,
although the mere similitude of handwriting in two
papers shewn to a jury, without other concurrent
testimony, is no evidence that both were written
by the same person ; yet the testimony of witnesses
well acquainted with the party's hand, is evidence
in all cases, tobe left to a jury, if the papers were
found in the custody of the prisoner.
Once more, all presumptive evidence of felony is
to be admitted with caution. For the law bolds,
that it is better that ten guilty should escape, than
that one innocent person should suffer punishment.
Lastly, respecting criminal evidence, it is de-
clared by statute 1 Anne, ch. 9, that in all cases of
treason and felony, all witnesses for the prisoner
990
1
shall be examined upon oath, in like maụger as the
witnesses against him.
The evidence for the prosecution being gone
through, the prisoner is then called upon for his
defence, and permitted to bring forward such wit-
nesses as he pleases, in his favour. The judge
now sums up the whole evidence, and makes suit-
able remarks on it to the jury, by pointing out
the law of the case, shewing where the evidence is
to the purpose, and where defective, and uniformly
instructing them, that if any doubt of the prisoner's
guilt rest upon their minds, they are bound in
mercy to acquit him : it being the very essence of
English liberty to protect the subject against foul
charges in the criminal courts of justice. The
jury then retire to consider their verdict, which
they must give in open courts, not privately to the
judge, as -sometimes happens in civil cauşes..
No verdict can be given unless, the whole of the
jury are agreed. The unanimity of twelve men is
the peculiar characteristic of the English jury. A
regulation, however, so repugnant to all experience
of human conduct, passions, and undețstandings,
could hardly in any age have been introduced into
practice by a deliberate act of the legislature.' It
is probable, therefore, that as no effective verdict
could originally be given by fewer than twelve
jurors, although more were present, so afterwards
* See Mr. serjeant Best's ingenious and eloquent defence of
celonel Despard.
391
1
wiien only twelve were sworn, their unanimity
became indispensable. *
If the jury find the prisoner not guilty, he is then
for ever quit and discharged of the accusation, and
shall be immediately set at large, without paying
any fee to the gaoler. But if they find him guilty,
he is then said to be convicted of the crime whereof
he stands indicted. Immediately after conviction
for any grand or petit larceny or other felony, there
are two collateral circumstances arise.
First, it is enacted by various statutes that the
reasonable expenses of prosecution, and also if the
prosecutor be poor, a compensation for his trouble
and loss of time, shall be allowed him out of the
county stock, if he petition the judge for that pur-
pose. And also that all persons appearing upon
recognizance or subpoena to give evidence, whether
any indictment be preferred or not, and as well
without conviction as with it, shall be entitled to
be paid their charges, with a farther allowance (if
poor) for their trouble and loss of time.
Secondly, on conviction of larceny, in particular,
the prosecutor shall have restitution of goods.
It sometimes happens when the jury find the
prisoner guilty, that they recommend him to mercy.
But that the king may exercise this amiable part
of his prerogative with the wiseșt discrimination of
character and circumstances, the juries have of
late been required to state their reasons for such
i
1
* Professor Christian.
392
recommendation; which, however, by no means
ensures to a prisoner even the mitigation of punish-
ment, much less a pardon. For although the jury
accompanied their verdict of guilty against colonel
Despard, with the following words, “ My lord, we
do: most earnestly recommend the prisoner to
“ mercy on account of the high téstimonials to his
"<former good character and eminent services;"
yet he was executed with the accomplices of his
guilt. Let not any mạn then take encouragement
to transgress the law on the presumption that his
former good conduct will extenuate his guilt or
alleviate his punishment!
Such then is the trial by jury in criminal cases,
so admirably calculated to protect the person,
property, and life of the subject from all vexatious
oppression ; whilst it is fully adequate to answer
all the ends of justice on behalf of the crown.
.
Nothing can exceed this mode of trial. But
excellent as it is, some imperfection attaches to
it, to remind us that it is a human mstitution. In
practice, it will not always be found to answer its
design. The innocent will doubtless sometimes
suffer wrongfully, and the guilty frequently escape
deserved punishment. The latter may be depre-
cated; the former will always be matter of poig-
nant sorrow: Does any one, then, lament that
even the trial by an English jury will not in all
Cases infallibly protect the innocent, and uniformly
convict the guilty ? let him direct his thoughts to
that “judgment-seat” to which lieth an appeal
i
399
from every earthly court. There all human errors
will be fully rectified, and every false judgment
reversed! For God “hath appointed a day in the
* which he will judge the world in righteousness
by that man whom he hath ordained."*
Upon conviction of the prisoner, the judgment of
the court immediately follows, if no intervening
circumstance suspend it.
The principal intervening circumstance in arrest
of judgment is the benefit of clergy.
As this important peculiarity of our criminal
law is not generally understood, it will be needful
briefly to consider it.
The benefit of clergy then originated from a con-
stitution of the pope; "that no man should accuse
“ the priests of holy church before a secular
judge.” This privilege at length was claimed
by the popish clergy as a divine right to which
they were entitled ; founding so unreasonable an
exemption upon a ridiculous perversion of that
text of scripture, “ touch not mine anointed, and
“ do my prophets no harm.”+ The blind submission
which christian princes in the dark ages paid to the
authority of the church, only increased the mon-
strous pretensions of the popish clergy, who did
not fail to abuse the superstitious lenity of their
civil rulers. There was nothing that they did not
render subservient to the interests of their order.
Acts, xvii, ver. 31.. 1 Chron. xvi. ver, 22.:
2 C
1
394
Whatever they touched, was, by a sort of magic,
turned to gold. As their power therefore increased,
they multiplied their privileges to a vast extent.
But the benefit of clergy being wholly derogatory
to the king, and contrary to the common law of
England, the clergy never could obtain in this coun-
try a total exemption from secular jurisdiction.
This privilege was exercised in England with
great uncertainty until the reign of Henry VI. It
was then finally settled, that the prisoner should
be first arraigned before the secular judge, and
might either then claim his benefit of clergy by
way of declinatory plea, or after conviction, in ar-
rest of judgment. But the latter mode is now
usually adopted.
This privilege was originally restricted to those
who wore the clerical habit, and were trimmed
with the clerical tonsure. But in those days of
ignorance, the ability to read being a mark of great
erudition, every one thus qualified became in time
to be accounted a clerk or clericus, and was allowed
the benefit of clergy, although not in holy orders.
On account of the scarcity of the clergy in the
realm, the bishop might, if he would, claim any
man who was condemned to death by the civil
judge, as a clerk, if he could read. But if either
the bishop would not demand bim, or the prisoner
could not read, then was he to be put to death.
At length, however, it was discovered that as many
laymen as clergymen enjoyed this privilege, which
could not fail to excite the jealousy of the latter,
395
-
lest the sacredness of their order should be pro-
faned by a too great assimilation of their privileges
with those of the laity. A further distinction, there-
fore, was made in favonr of the clergy by statute.
4 Hen. VII. ch. 13. By which it was enacted, that
a layman should not be entitled to the benefit of
clergy more than once; whereas a clerk in holy
orders might have his clergy a second time and
oftener. And in order to distinguish the person of
a layman from that of a clergyman, the former,
when admitted to this privilege, was burned with
a hot iron in the brawn of the right thumb, by the
gaoler, in open court.
Formerly, the laity after burning, and the clergy
without it, were discharged from the civil courts,
and given over to the bishop's jurisdiction, where
he was purged with a mock trial by a jury of
twelve clerks. But such shocking perjuries and
abuses were for ages committed in this way, that
when the reformation was fully established, so
profane a ceremony was abolished by 18 Eliz.
ch. 7. The wisdom of the English legislature
afterwards discovered, that as learning was no
extenuation of a crime, neither was ignorance any
aggravation of guilt. It was therefore enacted by
statute 5 Anne, ch. 6, that the benefit of clergy
should be extended to all who were entitled to ask
it, without requiring them to read by way of con-
ditional merit. So that when such persons are
asked by the court what they have to say why
2 c 2
396
judgment of death should not be pronounced upon
them, they are told to kneel down and
pray:
the
benefit of the statute. And the burning of the
hand or cheek, has been by various later statutes,
exchanged for fine, imprisonment, whipping, &c. at
the discretion of the judge.
With respect to the persons to whom this privi-
lege of clergy is allowed at the present day, it
may be observed, that all clerks in holy orders, are,
without any corporal punishment, to be admitted
to it, and immediately discharged as often as
they shall offend. But although in cases of grand
larceny or any clergyable felony, clergymen are not
subject to any corporal punishment; yet, on con-
viction for petit larceny, they are liable to be whip-
ped or transported, like other persons. But why
a protestant clergyman should be distinguished
from a layman by the privilege of committing any
crime whatever with impunity is hard to be under-
stood. Surely so enlightened a body as the Eng-
lish clergy must consider such an exemption as
very invidious. It is not likely, however, that per-
sons of their education should often have occasion
to avail themselves of this part of the criminal law.
Again, all lords of parliament and peers of the
realm, having seat and voice in the senate, as well
as all peeresses, shall be discharged in all clergy-
able felonies, in the same manner as real clerks
convict, but this only for the first offence.
Aud, lastly, all the commoners of the realm,
not in holy orders, whether male or female, shall,
397
1
for the first offence, be discharged of the capital
punishment of felonies within benefit of clergy,
upon being burned in the hand, whipped, fined, or
imprisoned, at the discretion of the judge; or in
cases of larceny, upon being transported for seven
years, if the court shall think fit. Formerly, by
the common law, women were excluded from the
benefit of clergy; but by the statute of 3 W. and M.
ch. 9, placed them in all cases on the same footing
with men of the same rank.
With regard to the crimes for which the benefit
of clergy is to be allowed, it may be remarked,
that neither in high treason, nor petit larceny,
nor in any mere misdemeanors, was it ever admit-
ted at the common law. It may therefore be taken
for granted, that it was allowable only in petit trea-
sons and capital felonies. In all felonies, however,
whether newly created or by common law, clergy
is now allowable, unless taken away by express
words of an act of parliament.
The term felony, in the English law, comprises
every species of crime which occasioned at com-
mon law the forfeiture of goods and lands; and to
which a capital punishment is sometimes added by
statute. The word is of feudal origin, being de-
rived from fee, which means a feud ; and lon,
which signifies price or value. Felony, then, is the
consideration for which a man gives up his fief.
This'term, therefore, which at first imported the
consequences of certain crimes, is now applied to the
398
crimés themselves, which in common language are
called felonies.
The consequences of the benefit of clergy to the
person convicted, are, independently on the corpo-
ral punishment, very important; for having been
once a felon, but now purged from that guilt by
the privilege of clergy, he receives hereby a kind
of statute pardon. Hence, not only his present
welfare, but his future interests are materially
affected; for after burning, or its substitute, or par-
don, the prisoner is discharged for ever, not only
of the crime of which he is now convicted, but of
all other felonies before committed, within the
benefit of clergy, and is restored to all his former
capacities, and to the possession of his lands, as
though he had never been convicted. And this is
equally applicable to peers and clergymen, who
are entitled to the same privileges without burning
or any other punishment in its stead.
CHAP. XXXIV.
THE SAME SUBJECT CONTINUED.
After conviction by the verdict of the jury in the
presence of the criminal, upon a capital charge, the
judge either immediately or soon after asks the
prisoner whether he has any thing to say in arrest
399
of judgment; that is, whether he can shew any
cause why the sentence of the law should not be
passed upon him.
Of this clemency of the law, the prisoner may
now avail himself, by making exceptions to the
indictment; as, for want of sufficient certainty in
setting forth the person, the time, the place, or the
offence. And if his objections should prove valid,
the whole proceedings shall be set aside, but the
party may be indicted again. Or, he may plead
a pardon in arrest of judgment, which saves the
attainder and corruption of blood; but this is not
the case if the pardon be not pleaded till after sen-
tence, and the blood being once corrupted, nothing
can restore it but an act of parliament. Or, he
may pray the benefit of clergy; which, it has
been already remarked, arrests the judgment of
death.
If all these resources fail, then the judge is
obliged to pronounce the sentence of the law. And
here it is worthy of observation, that the law is no
respecter of persons; but has ordained before hand
the kind of punishment, although not always the
degree which shall be the consequence of every
offence, by whomsoever committed. It is one of
the excellencies of our constitution, that the species
of punishment is not left in the breast of any judge,
or even of a jury; who are all men subject to pas-
sions, and might in some cases withhold deserved
punishment, through a mistaken tenderness; and
in others, inflict inordinate penalties, from anger or
400
revenge. Nor are the discretionary fines and im-
prisonments which our courts in some cases are
allowed to adjudge, any exceptions to the general
rule; for the naiure of the punishment is fixed and
determinate, although the duration and quantity of
it must frequently vary according to circumstances.
The discretion of the judges, too, is regulated by
law; the bill of rights declaring, that excessive fines
ought not to be imposed ; nor cruel and unusual
punishments inflicted. And any judge who dared
to disregard this charter of English liberties, would
soon find reason to repent of his arbitrary conduct.
The most terrible and highest judgment of the
law, is the sentence of death. When this is pro-
nounced on a man, the inseparable consequence is
attainder. The unhappy person is now no longer
of any credit or reputation. He cannot be a wit-
ness in any court; neither is he capable of perform-
ing the functions of auother man. For, by antici-
pation of his punishment, he is already dead in
law. The consequences of attainder, are for-
feiture and corruption of blood. Forfeiture is two-
fold ; of real and of personal estates.
As to real estates, a man by attainder in high
treason, forfeits to the king all his lands and tene-
ments of inheritance that he possessed at the time
the treason was committed. This forfeiture de-
stroys all intermediate sales and incumbrances,
but not those contracted before the fact. And
therefore a wife's jointure is not forfeited by her
husband's treason. The justice of this forfeiture
401
of property, is founded in this consideration; that
he who has thus violated the fundamental princi-
ples of government, and broken his part of the
original contract between the king and people, hatha
abandoned his connexions with society, and has no
longer any right to the enjoyment of its privileges;
one of which is, the right of transferring his pro-
perty to others.
In petit treason and felony, the offender also for-
feits all his chattel interests absolutely, and the
profits of all his freebold estates, during life; and
after his death, all his lands and tenements, in fee
simple (but not those in tail), to the king for a
year and a day.
The forfeiture of goods and chattels is incurred
in every one of the higher kinds of offence; in high
treason, or misprision thereof, petit treason, felonies
of all sorts, whether clergyable or not, suicide, pe-
tit larceny, standing mute, &c.
There is a difference between the forfeiture of
lands and of goods and chattels. The former are
not forfeited till after attainder; whilst the latter
are on conviction.
Again, the forfeiture of lands has relation to the
time the fact was committed, so as to avoid all
intermediate sales, &c. &c. but thạt of goods and
chattels has not, so that a man forfeits those only
which he has at the time of conviction.
Corruption of blood, the other immediate conse-
quence of attainder, means the incapacity of an
attainted person to inherit lands, &c. &c. from his
1
402
ancestors, or to retain those he already possesses,
(or to transmit them by descent to any heir; the
same being an escheat to the lord of the fee, sub-
ject to the king's superior right of forfeiture.
After judgment has been awarded, it may yet be
reversed, and all its consequences set aside.
This may be effected in two ways; either by fal-
sifying the judgment, or by reprieve or pardon.
A judgment may be falsified, in the first place,
without a writ of error, for matters not apparent on
the face of the record. Thus, if any judgment
whatever be given by persons who had no good
authority to proceed against the person condemn-
ed, it is void ; and may be falsified by shewing the
special matter, without a writ of error: as, if a
commission be granted to A. and B. and twelve
others, or any two of them, of whom A. or B. shall
be one, to take and try indictments, all the pro-
ceedings will be void, ipso facto, if any of the other
twelve should act without their interposition or
presence.
Again, judgment may be reversed, by writ of
error, which lies from all inferior criminal courts to
the king's bench, and from thence to the house of
lords. A writ of error may be brought for gross
inistakes in the judgment or other parts of the re-
cord; as if a man found guilty of perjury should
receivė the judgment of felony. So also, for less
palpable blunders, as the want of the proper addi-
tion to the defendant's name in the indictment, and
for any other similar cause. Which shews how
1
403
extremely tender and watchful the law is over the
life and liberty of the subject.
These writs of error, in case of misdemeanors,
are not to be allowed of course, but only upon suf-
ficient probable cause shewn to the attorney-gene-
ral; and then they are grantable of common right.
But writs of error to reverse attainders in capital
cases, are allowed only ex gratia ; and not without
express warrant under the king's sigu manual, or, at
least, by the consent of the attorney-general. These
writs can rarely be brought by the party himself,
where he is attainted, for an offence against the
state; but it is a consolation to his family, to
know, that his heir, or executor, may, in more
favourable times, get the judgment reversed. And
hence, it has often happened, that after sudden re-
volutions in government, an attainder has been
reversed by an act of parliament, which is the easi-
est and most effectual way of doing it. So that
although the crime was allowed by all, and the
punishment that followed confessed to be just, yet
the merits of the culprit's family have often been
no less manifest after his death. And, on this ac-
count, the blood, honours, and estate, have fre-
quently been restored by statute. This has been
done by the 24 Geo. III. ch. 57, with respect to
the forfeited estates in Scotland.
When judgment upon conviction, is reversed,
the party stands as if he had never been accused
at all. Consequently remains liable to another
prosecution for the same offence.
:
404
!
pow-
But there are still other ways of avoiding the
execution of the judgment; and these are by a
reprieve or pardon. A reprieve, from rependre,
to take back, is the withdrawing of the sentence,
for a time, whereby the execution is suspended.
A reprieve may be granted at the will of the
judge, either before or after judgment. This
er the judge frequently exercises, whenever he is
dissatisfied with the verdict, or considers the evi-
dence suspicious, or whenever such favourable cir-
cumstances appear in the prisoner's case and cha-
racter, as induce him to apply to the king, either
for an absolute or conditional pardon.
The law likewise requires a reprieve where the
offender is non compos, between the judgment and
execution. Because, with its usual lenity, it ar-
gues, that perhaps the convict might have offered
some reason to have staid the execution of the
judgment, had he been in his right senses.
Or the offender may plead in bar of execution,
either the king's pardon, an act of grace, or di-
versity of person; that is, that he is not the same
person who was attainted, and the like. In this
last case, a jury must be impanelled to try the
identity of person.
But should he not be able to advance any of
these pleas, so as to stay the execution of the sen-
tence, the offender has still another and more sure
resort in the king's most gracious pardon,
The granting of a pardon is the most amiable trait
in the royal prerogative. This act of the king, is
1
405
that which is most personal, and most entirely his
own.
The power of pardoning offences is, by the con-
stitution, united solely to the crown of this realm;
and the exercise of this branch of his prerogative,
is conformable to his Majesty's coronation oath,
which binds him to execute justice with mercy.
With respect to the objects of pardon, the king
may pardon an offences merely against the crown,
or the public, with some exceptions to this general
rule. As for instance, the king cannot pardon
the committing of any man to prison out of the
realm; for this is made an offence unpardonable;
incurring 'a premunire, by the statute of habea's
corpus, with a view to preserve the liberty of the
subject. So neither can his Majesty exercise this
branch of his prerogative where private justice is
principally concerned in the prosecution. In
appeals, therefore, of all kinds, the prosecutor
may release, but the king cannot pardon.
This delightful part of the royal prerogative was
formerly liable to very great abuse, and sometimes
employed to screen the ministers of the crown
from punishment for their public misconduct;
hereby totally invalidating the responsibility of
the king's confidential servants. But in the reign
of Charles II. the house of cominons resolved, in
the case of the earl of Danby, that the pardon he
pleaded in bar of their impeachment, was illegal
and void. And by the act of settlement, 12 and
13 W. III. ch. 2, it was enacted, that no pardon
406
under the great seal of England shall be pleadable
to an impeachment by the commons in parliament.
Yet after a delinquent has been found guilty and
received judgment upon such impeachment, the
king is not restrained from pardoning him. This
privilege of the crown of pardoning delinquents
convicted in impeachments, is coeval with the
constitution itself; as acknowledged by the com-
mons, and asserted by the king, in a remarkable
record of the 50 Edward III.*
No judgment, however, can be pronounced by
the lords after they have declared the delinquent
guilty, unless it be demanded by the commons;
who have the power of pardoning the impeached
convict, by refraining to require judgment against
him.
It was formerly a matter of doubt, whether a
dissolution of parliament abated an impeachment
or not. But after a very learned and full investi-
gation of the question, in the impeachment of
Warren Hastings, esq. it was decided by a very
large majority in both houses, that the impeach-
ment was not abated by the dissolution of the
parliament that had preferred the charges; although
the negative of this proposition was supported by
almost all the lawyers both among the lords and
..commons. Indeed it is obvious, that were a dis-
solution of parliament to render an impeachment
by the commons of England void, a corrupt minis-
* Professor Christian.
f
:
407
ter would always resort to this measure, to shelter
himself from the violence of the storm that had
gathered over him, and which he plainly saw
would soon break upon his head, and overwhelm
him with disgrace and ruin.
A pardon must be under the great seal of Eng-
land. If there be any suppression of the truth,
or suggestion of falsehood, in a charter of pardon,
the validity of the whole is destroyed ; because it
is inferred, that the king has been deceived on the
subject, otherwise he would not have granted the
pardon.
Again, as general records in pardons have but a
very imperfect effect, it is necessary that the con-
viction and attainder be particularly specified, So,
also, in cases of treason, or murder, &c. &c. no
pardon shall be allowed unless the offence be
accurately described therein. And in murder, it
must be clearly expressed whether the crime was
committed by lying in wait, assault, or malice
prepense.
It is a general rule, that under these and a few
other restrictions, a pardon shall be taken most
beneficially for the subject, and most strongly
against the king.
A pardon may be conditional ; that is, the king
may grant it upon what terms he pleases. Hence,
the daily exercise of this part of the prerogative in
pardoning felons, upon condition of their being
eonfined to hard labour, or of transportation to
some foreign country. for life, or for a term of
408
years. Transportation is a punishment said to
have been first inflicted on the subjects of Great,
Britain by statute 39 Eliz. ch. 4.
The manner of allowing pardons is worthy of
attention. For it may be remarked, that a pardon
by act of parliament, is more beneficial than one
by the royal charter; the court being obliged et
officio to take potice of it, whether the convict
plead it or not. But the king's pardon by charter
must be especially pleaded at a proper time; that
is, either upon arraignment, or in arrest of judg.
ment, or in bar of execution.
The necessary effect of the king's pardon, is the
making of the offender a new man by acquitting
him of all corporal penalties and forfeitures conse-
quent upon his crime, and giving him a new
credit and capacity.
If the pardon be 'not granted till after the
attainder, which corrupts the blood, nothing can
purify the polluted stream but an act of parliament.
But if the person attainted have a son, after he
has received the king's pardon, that son, if he
have no elder brother living born before the
attainder, may be heir to his father; yet if he had
been born prior to the grant of the pardon, he never
cunld have inherited at all.
We are now called to witness a most affecting
scene, the humiliating completion of the punish-
ment of a capital offender. Surely nothing can
be more shocking to the feelings of humanity,
than to behold a fellow-creature cut off with the
409
8
sword of justice from the face of the earth, and
hurried from an earthly tribunal, into the awful
presence of “ God the judge of all !” It only re-
mains, then, that we proceed to state the method
of executing the sentence of the law.
Execution must be performed by the legal officer
the high sheriff, or his deputy. Upon the execu-
tion of a peer, sentenced in the court of the lord
high steward, the sheriff receives a warrant by pre-
cept under the hand and seal of the judge ; but if
the peer be condemned in the court of parliament,
then the execution is warranted by a writ from the
king. The only warrant, however, which the she-
riff has for executing a commoner, is the judge's
signature upon the calendar, or list of the prison-
ers' names, with their separate judgments in the
margin. As for instance, in case of a capital
felony, it is written opposite to the prisoner's name,
“ let him be hanged by the neck.” Formerly, no-
thing more was written than “sus. per coll.” an
abbreviation for suspendatur per collum ; but now
a method is adopted more consistent with so
solemn an act as the taking away of a man's life.
At the end of the assizes, the clerk of the assize
writes four lists of all the prisoners, with separate
columns, containing their crimes, verdicts, and sen-
tences, leaving a blank column, which the judge
fills up opposite the names of the capital convicts,
by writing, to be executed, respited, or reprieved.
These four calendars being first carefully compared
2 D
410
together by the judge and the clerk of the assize,
are signed by them, and one is given to the sheriff,
another to the gaoler, and the judge and the clerk
of the assize each keeps another. If the sheriff
receive afterwards no special order, from the judge,
he executes the sentence of the law at the usual
time and place, and in the usual manner, agreeably
to the directions in the calendar.* The time that
elapses between the passing and executing of the
sentence of the law, is left at large in the country,
and regulated according to the custom of each
county: but in Middlesex and London it is differ-
ent; for the recorder, after reporting to the king in
person the case of each of the prisoners, and receiv-
ing his royal pleasure that the law must take its
course, issues his warrant to the sheriffs, directing
them to do execution upon the day and place as-
signed. Hence we see that the popular notion that
the king always signs what is usually called the
death warrant, is not founded in fact; except in
the execution of a peer, condemned before him in
parliament.
- The sheriff has no discretionary power to sub-
stitute one kind of death for another, without being
guilty of felony himself. Nor can even the king
alter the punishment of the law; yet, when be-
heading is part of the sentence, he may remit all
the rest.
À common opinion prevails, that if a person,
after hanging the usual time, should be cut down
i Professor Christian.
411
and revive by any means, the law has no farther
demand on him :,but this is a great mistake; for,
as he was judged to be hanged by the neck till he
was dead, the former hanging was no execution of
the sentence; and therefore the sheriff, at his peril,
must hang him again, till the intent of the law be
fulfilled. Indeed if a mistaken compassion in such
cases were connived at, it would infallibly open a
door to very frequent and dangerous collusions.
Thus have we attended the unhappy criminal
from his first apprehension by the constable,
through all the stages of his trial to his final execu-
tion. We have seen how happily he might have
lived in society, had he not wilfully violated those
wise and equitable laws which required only his
obedience in return for the constant protection they
afforded him against the injury of others ! we have
observed how closely punishment treads upon the
heels of transgression ! * we have discovered that
the English code of criminal justice is a sys-
tem not of relentless cruelty, but of wisdom and
compassion! we have perceived with what care
and jealousy the laws watch over the life, the liber-
ty, the property, even of the meanest subject, and
guard them against the power of the crown! we
have noticed that the guilty often escape the ven-
geance of the law through a very trifling circum-
stance, and that the wise institution of a grand as
* Culpam pæna premit come-Hor. lib. iv. carm. 5.
2D 2-
412
well as a petit jury, secures almost to a certainty
an innocent man from punishment! we have ad-
mired that clemency of the law, which, even after
judgment, creates a peradventure that the criminal
may yet escape with his life! we have beheld how
admirably the royal prerogative of pardon is cal-
culated to soften the rigour of the law, where its
strict execution would be too severe! and we
contemplate with satisfaction and gratitude, that
it cannot fail to be exercised upon all suitable
occasions, whilst it is deposited in the compassi-
onate breast of a prince of the house of Brunswick!
O fortunati nimium, sua si bona norint." *
Thrice happy Britons, did you but rightly under-
stand your privileges, and suitably improve them!
CONCLUSION.
Having given a sketch of the fundamental prin-
ciples and customs of the English Constitution, it
may be useful to the reader, if we take a retrospect
of the most important changes they have under-
gone from time to time; and mark their gradual
advancement towards perfection.
Wherever we turn our eyes, we shall perceive
that progression is the order of things. In the ve-
* Virg. Georg. lib. i.
419
getable tribe we observe “first the blade, then the
“.ear, afterwards the full corn in the ear.” The
various animals, from the lowest species to man
himself, have their different periods of infancy, .
youth, and mature age. The same order is also
observed both in the natural and moral world.
· The light shineth more and more to the perfect
day; and there are children as well as men in
knowledge. And it is worthy of notice, that even
creation itself begins with things inanimate, then
proceeds to vegetive life, from thence to animals,
and ends with man, made after the image of God. *
To suppose, therefore, that the glorious privileges
of Englishmen were all coeval with the British
government itself, would be to imagine what is
unfounded in fact, and contrary to all reason and
analogy. “God has made human society progres-
sive, by the laws of nature, as well as by the
“ order of his providence.” The British constitu-
tion, in particular, is evidently a fabric too magni-
ficent and costly to have been the work of a single
generation, or even of a century. Its foundations
were laid by our Saxon ancestors, and the super-
structure has been gradually raised by every suc-
ceeding race. Much of its most useful and orna-
mental part has been the work of our own times;
and much, doubtless, remains to be done to give a
complete symmetry to the whole. ,
* Fuller, on Genesis.
414
Very little is known respecting our laws under
the ancient Britons, or Aborigines of our island.
Yet, something may be gathered concerning them,
from the account which Julius Cæsar has given of
the ancient druids, whose customs bear a near re-
semblance to some of our modern usages. Our
common law, handed down from one generation
to another, by custom only, seems to have origi-
nated with the druids, who did not commit their
laws to writing, but transmitted them to their poste-
rity by tradition. The druids, who were the priests,
possessed an absolute and uncontrouled authority
over the ancient Britons. · Their religion, which
constituted the principal part of their government,
was enveloped in great mystery, and they strictly
prohibited any of its doctrines being committed to
writing, lest by thus exposing their absurdity to
the ridicule of the people at large, they should be
exploded, and their own authority subverted. No-
thing will bear the light but truth. Error is one of
those deleterious herbs that court'the shade. It is
not certain, however, that the druids were ac-
quainted with letters, and therefore their oral law
may have been adopted even from necessity. The
custom of garelkind, the division of the goods of
an intestate between his wife and next of kin, are,
doubtless of this very ancient date, The burning
likewise of a woman found guilty of killing her
husband, had continued from the time of Cæsar to
the present reign, until this needless barbarity was
abolished by statute 30 Geo. III. ch. 48.
415
It is next to impossible to trace out, with preci-
sion, the respective origins of our several customs,
and the exact period of those changes which have
-taken place in the common law. But it is natu- :
rally inferred, that the various incursions into this
island by the Romans, the Picts, the Saxons, and
the Danes, not only nearly extirpated the ancient
Britons, but must have mutilated, if not totally de-
stroyed their constitution. The successive predo-
minancy of these nations, must necessarily have
occasioned great confusion in the common law;
and that which we now possess is doubtless a
mixture of the different customs of those ancient
invaders. As some of the Mosaical laws are
blended with our own system, it is probably owing
to the propagation of Christianity among our Saxon
ancestors. For they would easily be induced to
lay aside their Pagan abominations, when they
embraced the true religion; and adopt such max-
iins as were more agreeable to its holy nature ;
and could not fail to be inculcated by the christian
missionaries.
After the Saxon government was settled in this
island, a great variety of customs was created by
the division of the kingdom into an heptarchy. But
when the whole island was subdued to one govern-
ment by Egbert, it was necessary to reduce the
different laws of the heptarchy into one uniform
code. The effecting, however, of this arduous
work, was reserved for the mighty genius of the
immortal king Alfred, to whom we owe that mas..
}
416
ter-piece of judicial polity, the subdivision of Eng-
land into tithings and hundreds, if not into coun-
ties. The wise institutions of this politic prince,
have remained unchanged nearly a thousand years.
:. That admirable system now known amongst us
by the appellation of the common law of universal
authority throughout the kingdom, is certainly of
Saxon origin, and was probably begun by king
Edgar, and afterwards completed by his grandson,
Edward the Confessor. Yet this excellent body of
laws was very likely only a revival of king Alfred's
code.
Amongst the most remarkable of the Saxon laws,
may be reckoned, the constitution of parliaments ;
the election of the magistrates by the people; the
hereditary descent of the crown; the rare infliction
of capital punishment for the first offence; the pre-
valence of certain customs, as heriots, &c. &c. the
liability to forfeiture of estates for high treason;
trial by jury, &c. &c. Such was the general polity
of England at the Norman conquest,
That memorable event not only altered the
royal dynasty, but made a considerable change in
the laws, and occasioned the separation of the
ecclesiastical from the civil courts; a measure
which was doubtless adopted by the Conqueror,
in order to ingratiate himself with the popish
clergy, wlio were anxious to liberate themselves
from all secular authority. William introduced
also the forest laws; to which large districts were
subjected, for the king's own diversion. These
417
severe laws are now become obsolete; but fronti
then have sprung the modern game laws, which,
althongh less oppressive, are not much more
reasonable.
The county courts, which had been the chief
seats of Saxon judicature, were superseded by
the erection of the aula regia, and the admiðis-
tration of impartial justice was greatly impeded
by the king's ordaining that all legal proceedings
should be carried on in the Norman instead of
the English language. But the most important
alteration in our laws effected by the Conqueror,
was the ingrafting of the fiction of feudal tenure
upon almost all landed estates.
This change
gave rise to a numerous train of oppressive appen-
dages; such as aids, reliefs, primer seisins, ward-
ships, marriages, escheats, fines for alienation,
&c. &c. At no period of our history did our
forefathers groan under so complete a slavery;
both of body and mind, as they experienced in
consequence of those laws which were introduced
by this tyrannical prince. A superstitious clergy
fettered the consciences of the laity by importing,
for the first time, all the absurd inventions of the
Romish church. The public prayers, contrary to
the apostolical directions and the plainest dictates
of common sense, were now, as well as the laws,
administered in an unknown tongue.
At the sound of the doleful curfew bell, the
inhabitants were obliged every where to put out
their fire and candle at eight o'clock. This
.
?
1
!
418
rñemorial of ancient slavery continues in many
parts of the kingdom to this day; and whilst it
reminds us of the degraded state of our ancestors,
it should excite our gratitude that we are happily
delivered from so galling a yoke. Such tyranny,
however, was ill-suited to that soil which seeins
to have been naturally productive of civil liberty.
Henry I. therefore found it expedient when he
came to the throne, to restore the laws of Edward
the Confessor, whereby the people regained the
ancient Saxon constitution, of which their fathers
had been violently deprived by the injustice and
cruelty of the Normans.
In the reign of Henry II. some greater im-
provements in our laws were accomplished. The
power of the pope and clergy was considerably
checked by the constitution of the parliament at
Clarendov, in 1164; although the fatal termina-
tion of the disputes between the king and arch-
bishop Becket unfortunately put a stop at that
time to a farther progress in diminishing the eccle-
siastical authority. The institution of justices in
eyre, in itinere, was a measure of great public
utility as a remedy against the injustice which
had' crept into the county courts, as well as
against the great expense which suitors incurred
by taking their causes to be determined before
the justiciaries in the aula regië. In this reign,
too, the barbarous trial by battle was abolished,
the trial by jury improved, and the foundation of
our present land tax laid by the introduction of
419.
escuage, or a pecuniary commutation for personal
military services.
Richard I. repealed some of the cruel penalties
of the forest laws; and composed, at the isle of
Oleron, a code of naval laws, which is still extant.
In the reigns of John and of his son Henry III.
the barons were roused to an alarming insurrec-
tion by the rigour with which these princes en-
forced the feudal tenures and forest laws. But
as great evils usually work their own remedy, the
tyranny of John and Henry at length produced
the two famous charters of our liberties, magna
charta and charta de forestá. By these celebrated
acts a great alteration was made in favour of the
subject, and protection afforded to every indivi-
dual in the free enjoyment of his life, liberty, and
property, unless they were declared to be forfeited
by the judgment of his peers, or by the law of the
land. The hardships of the feudal system must
have been severely felt by many generations of
our brave ancestors, and doubtless some of them
“ also murmured” against God who had permitted
their country to be conquered by a foreign invader.
And yet is probable, that if William had not
obtained the kingdom, the liberties of England
would never have been so accurately defined, nor
so indiscriminately extended to all ranks of people,
as they were by the great charter and subsequent
acts. For it is worthy of observation, that the
feudal system, which gave such excessive power
to the kings, was ultimately the means of en.
420
larging the liberties of the subjects of England;
whilst the same power made all the other Eu-
ropean monarchs absolute, and subdued the mass
of the people to a state of abject slavery. But
whence this difference so greatly in favour of
England? The reason seems to have been, that
in France, at least, the barons were independent
on the king; whereas the feudal system, intro-
duced by the Conqueror, established here a chain
of connexion, which bound the haughty barons as
firmly to the king as it did the degraded vassals to
them. Hence, whenever the nobles found them-
selves oppressed by their superior lord, they were
obliged, in resisting him, to make a common cause
with the people, and could secure no-advantages
for themselves without procuring them at the same
time for their dependants. But in France, all
political quarrels have ended in favour either of
the ruler or the noblesse; and whether the monar-
chy or aristocracy prevailed, the people remained
equally oppressed. Such a difference between
the privileges of England and those of other na-
tions, can be ascribed only to the sovereign will
of him “who moves in a mysterious way,” and
sways the creation as he please.”
But it was the opinion of Sir Matthew Hale,
that more was done in perfecting our laws during
the first thirteen years of king Edward I, than in
all succeeding reigns put together. This high
encomium was probably just at the time it was
wade; but cannot be admitted with regard to the
.
421
many improvements in the constitution introduced
from the reign of the first Charles to the present
time. The regulations which were made by the
illustrious Edward were so numerous and wise,
that they have obtained for him the distinguished
appellation of the English Justinian. He greatly
promoted the equal distribution of justice through-
out the kingdom; confirmed the charters of John
and Henry III. and by settling the bounds of
ecclesiastical jurisdiction, gave a fatal blow to the
papal authority in England. He defined the
limits of all the temporal courts, from those of the
highest to those of the lowest jurisdiction. He
abolished all taxes levied without consent of par-
liament; first established a repository for the
public records of the kingdom ; 'and greatly im-
proved upon the laws of king Alfred, by that
orderly method of watch and ward, which was
enacted by the statute of Winchester. By the
various statutes of mortmain, he effectually pre-
vented the whole landed property of the kingdom
from falling into the hands of a rapacious clergy;
who, from the ignorance and superstition of those
benighted times, easily enriched themselves by
imposing upon the consciences and understandings
of the people. All Wales was reduced to the
subjection of the crown, and in a great measure
of the laws of England, under this illustrious
prince; who entirely settled the very scheme and
model of the administration of justice between
party and party, which has continued nearly the
422
same through all succeeding ages to the present
day.
In the reigns of Edward II. and Edward IIL
the people were deprived of their ancient privilege
of choosing their subordinate magistrates; justices
of the peace were established; and the parliament
is thought to have assumed about this period, its
present form, by an entire division of the lords and
commons into two distinct houses. It was, too,
under the auspices of the third Edward, that the
important statute for defining and ascertaining
treasons was enacted, as well as the statute of
premunire, which ultimately so effectually de-
stroyed the civil power of the pope in these king-
doms. The laborious parochial clergy were first
established in this reigo, by the endowment of
vicarag'es out of the possessions of the monasteries.
The statute of prentunire was re-enacted in the
subsequent reign of the unfortunate Richard II.
and thus the clergy and the court of Rome were
still further checked by the legal measures of the
English parliament. About this period there was
a very visible decay of ecclesiastical authority; of
which there cannot be a greater proof, than the
natural death of John Wickliffe, the celebrated
harbinger of the reformation. It cannot be sup-
posed that the clergy wanted inclination to punish,
with the utmost severity, a man who boldly
preached against the unscriptural tenets and
tices of the church of Rome; thus laying the axe
at the root of its credit, possessions, and autho-
prac-
423
rity. But although Wickliffe escaped the ven-
geance of the clergy in this world, they assured
the people that the palsy of which he died was a
direct judgment upon him for his heresies, and
that he would be eternally damned.
In the reign of this magnificent prince, the
creation of peers by patent was first introduced.
The quarrels which ensued between the houses
of York and Lancaster, unhappily put a stop to
the further improvements of our laws. From the
time, therefore, of Richard II. to the reign of
Henry VII. no alteration of importance took
place: but these civil disputes occasioned the
loss of our dominions in France, and thereby
afforded the succeeding kings of England more
leisure to attend better to the management of
their domestic government. The wicked minis-
ters of Henry VII. were more intent upon extorting
money in virtue of old and forgotten penal laws,
than upon making any new beneficial statutes.
In fact, every change in the laws which was
made during this rapacious reign, however salu-
tary it might afterwards prove, had primarily no
other end in view than the enriching of the king's
treasury.
The reformation of religion from popery, begun
by Henry VIII. eminently distinguished the
reign of that capricious monarch. The manner
in which that great event was brought about was
so extraordinary, that the hand of God was sig-
pally displayed in its accomplishment. The con-
424
duct of Henry upon this occasion, probably arose
from no higher motive than the gratification of his
lust and ambition; for he was himself so bigotted
a papist as to write in defence of that very corrupt
church, in reforming which, Divine Providence
designed he should be so active an instrument.
And he received the title of “defender of the
“ faith,” from the pope, from whom he was so
soon to wrest his usurped authority over the
English church.
Not only was Henry instrumental in effecting a
reformation which he never intended, but it is well
known that many other of the principal persons
who contributed to its establishment, hated it in
their hearts. Indeed it would be folly to ascribe
this remarkable event to the wisdom and foresight
of any man or set of men whatever. History
affords abundant evidence that there was such a
multiplicity of concurring, predisposing, and pro-
gressive causes, as to convince every unprejudiced
mind, that the author of the reformation was
divine, although it was perfected by the agency of
inar: *
The violent temper of the king rendered him
very impatient and refractory, and urged him on
to break in sunder the iron yoke of Rome. Thus
was the power of the English clergy destroyed
• Whoever wishes to take an enlarged view of this subject,
should read, “Hints towards forming the character of a young
« Princess," vol. 2. ch.35.
425
for ever. The crown was restored to its supre-
macy over spiritual men and causes; and the
patronage of the bishopricks once more invested
in the king. The scriptures were now read in
our own tongue. “ He opened the rock, and the
“ waters gushed out; they ran in the dry places
" like a river;" and knowledge and happiness
gradually overspread the whole land.
The administration of Henry VIII. forms a
distinct æra too in the annals of our judicial his-
tory; since he made many improvements in our
civil polity, and redressed many of the grievances
which had disgraced his father's reign.
The statutes of wills and of uses, which made
a great alteration with regard to property, were
both enacted in this reign. The former allowing
the devise of real estates by will; the latter at-
tempting to destroy the intricate nicety of uses.
The bankrupt laws were now first introduced;
and the incorporation of Wales with England, .
whilst it added to the dignity and strength of the
monarchy, marked the policy of Henry's govern-
ment. Towards the latter years, however, of this
reign, the royal prerogative was strained to a very
enormous degree. An'act was passed by which
the king's proclamation was made to have the
force of law, through the weakness of a compliant
parliament, which “fearing the wrath of the
- king,” consented to so scandalous an encroach-
ment on the constitution. Yet this measure, se
2 E
426
dangerous to the subject, was overruled for the
furtherance of the reforination; as upon that very
act were grounded all the great changes of religion,
during the minority of Edward VI.* Treasonable
offences were also greatly multiplied: in short,
although by God's gracious providence, both true
religion and civil libcrty were ultimately proinoted
by Henry's quarrel with the pope; yet, it is clear
that he himself had no design that such should be
its effect! On the contrary, it is probable, that
the government of this arbitrary prince, would
have been increasingly oppressive and intolerable,
had he not been seasonably removed by death.
Surely the wrath of man shall praise thee; the
“ renainder of wrath shalt thou restrain."
A great part of the arbitrary laws of Henry
was repealed during the short i'eign of his suc-
cessor and son Edward VI. The administration
of this pious and extraordinary prince, screened
the nation from popish 'cruelty. : The people sat
under his shadow with great delight, and doubt-
less, hoped that now. the glorious work of refor-
mation would proceed without interruption. But
God prepared a worm which smote this beautiful
gourd, that it withered. Immediately a vehement
wind arose, and the scorching beams of persecu-
tion beat upon the land, that it fainted; and many
faithifalwitnesses sealed the truth with their blood
in the reign of the gloomy and bigotted queen
* See Burnet's History of the Reformation, part 1. hook iii.
427
.
Mary. Happily, her cruel policy was of short
duration ; and the tremendous thunder and light-
ning of this dreadful period were accompanied with
some fruitful showers, whose good effects were
lasting. Many salutary civil statutes were enact-
ed; among others, was passed the first general
law relative to high ways; the advantages of which
are now experienced in every part of the island.
The reformation, which had suffered a tempo-
rary eclipse, emerged with a more resplendent
lustre on the accession of queen Elizabeth to the
throne. This propitious event was every where
hailed with such excessive joy, that none ex-
pressed the least sorrow for the death of queen
Mary but the priests; who, amid such universal
gladness, were compelled to mourn in secret.*
The cruel persecutions of the late reign had
indeed swelled the ranks of the “noble army of
“ martyrs;" but so far were they from suppressing
the reformation, as the papists intended, that
they greatly promoted it: for the whole nation
was hereby so convinced of the lorrors. of popery,
that it readily and almost universally embraced
the milder and more rational system of the pro-
testants. “
So true is it that the 66 wisdom of this
« world is foolishness with God."
In the brilliant reign of Elizabeth, the founda-
tion of religious knowledge and liberty was laid
* See Burnet's History of the Reforination, part 2. book iži,
2 E 2
428
1
· too firmly, we trust, ever to be moved; since,
from that period, Jesus Christ has had not only
in every city, but even in every town and village,
them xvho preach him, both the law and the gospel
being read in a known tongue in the churches
every Lord's Day.* If we would justly appre-
ciate this fact; we must look back to the early
periods of the reformation. “ In those days the
word of the Lord was precious, there was no
is open vision. There were seldom, perhaps,
more than two preachers in a county; and in
very few towns was a sermon preached oftener
than once a quarter.' What appearance, then,
:ipust the face of the country have continued to
exhibit, but that of a nation devoted to heathenish
or papal superstition and idolatry, had not the
overenling providence of God secured the public
reading of the scriptures in our own tongue
throughout the land !
:: The laws which guarded the established church
in her infancy, were indeed very severe; but in
proportion as the necessity Nat created thena has
dininished, they have been repealed or become
obsolete." It must be allowed, however, that
: neither civili nor religious liberty was fully enjoyed
till the revolution; yet before that era, the per-
• manent establishinent of the protestant church of
England was unquestionably instrumental to the
:
0
1
Acts, ch, xv. ver. 21.
429
gradual decay of arbitrary power and religious
intolerance.*
Under the administration of this wise princess,
the laws were duly administered. The Saxon
constitution was restored, with many improve-
ments; yet the crown was armed with a very
oppressive prerogative by the continuance of mili-
tary tenures, and of a few other evils. In this
reign the poor's laws were first enacted; which,
although they may have fallen short of the end
proposed by them, were introduced with the hu-
mane design of enabling the poor to maintain
themselves, and of providing for their comfortable
support when grown aged and infirm. England
is probably the only nation in the world that pro-
· vides for its poor by law. How far this part of our
constitution has been and still is connected with
our public prosperity and happiness, it would be
presumption to determine.
No one; however,
who reflects how uniformly the sacred scriptures
urge the care of the poor as an indispensable
duty, and considers that "righteousness exalteth
"a nation,” can deny the probability that our
legal provision for the poor has had its share in
procuring for us our distinguished national bless-
ings. Certain it is, that these have gradually
been increasing more or less in every succeeding
reign
.
1
# Sce" Hints," &c. &c. vol. 2. ch. 39.
430
But with all human good there is a mixture of
evil. The blessings of Elizabeth's reign were
counterbalanced by the increased power of the
star chamber, and by the erection of the high
commission court. The queen exercised almost
an absolute authority over both houses of parlia-
ment, which she kept in very great awe. We
are not, however, to judge of her conduct in this
respect by our modern privileges; for the royal
prerogative was at that time much larger by
common law than it now is, and it was not till
this reign that the commons by acquiring commer-
cial property began to feel their own consequence,
and grow jealous of the other branches of the
legislature,
James I. succeeding to the crown on the demise
of Elizabeth, exerted the prerogative on trifling
occasions so independently and unreasonably,
that at length the people were roused to examine
into the legitimacy of such extravagant power.
The leaders amongst the commons soon found
out that the royal prerogative was of human
authority, and consequently liable to be altered,
In resisting it, therefore, they obtained some vic-
tories in the cases of concealments, monopolies,
and the dispensing power,
To the honour, however, of king James, he
patronised Sir Hugh Middleton, the celebrated
projector, on whom he conferred the honour of
knighthood. With Şir Hugh, originated that
1
431
stupendous work of the new river, which was
begun on September 20th, 1608;. and completed
in 1613. He brought the water from Amivell, in
Hertfordshire, to near Clerkenwell, surmounting
many and great difficulties, in carrying the river
through hills and over two valleys. By subse-
quent acts of parliament, the new river company
obtained powers, to avail themselves of the river
Lea; and these two strcams now united by art,
supply the greater part of the vast population of
London, with the indespensable article of excel-
lent water. Sir Hugh was ruined by the execu-
tion of his project; and so little was its benefits
at first understood, that for above thirty years the
holders of the shares received only £.5 apiece.
The shares which originally cost only £.100, are
now worth more than £.15,000 each. However
inglorious, therefore, the reign of James must in
general be considered, the citizens of London
have abundant reason to contemplate with grati-
tude tļie period at which originated the source
that supplies their daily necessities.
The abolition of the sanctuaries, was almost
the only step taken in this reign towards the
improvement of the administration of justice.
The bankrupt laws were extended, and informa-
tions 'upon penal statutes regulated.
The unfortunate king Charles I. began his
reign with higher notions of the prerogative than
were consistent with the popular opinion, and
exerted it too arbitrarily for the temper of the
1
432
times, but at length consented to laws which
reduced it so low, as to be incompatible even
with a limitted monarchy. The constitution was
greatly improved during this turbulent reign, by
the “petition of right,” which abolished many of
the encroachments of foriner reigns. The king
also redressed; in a constitutional manner, the
grievairces respecting the arbitrary levies of ton-
nage; ship money, &c. &c. but unhappily he lost
liis credit for sincerity; not regarding those obli-
gations binding upon his conscience, under which
he had been brought in circumstances of great
political restraint. The parliamentary leaders
fearing his resentment if he should ever regain
his power, were at length driven by despair tò
join the military, who, inflamed with religious
animosity, overturned both the established church
and the monarchy; and by a mock trial murdered
their king. A like fate befel the late king of
France, from a similar cause. That arniable
monarch had taken repeated oaths of fidelity to
the new order of things, and no one can doubt
that he took them under great restraint. Perhaps
at that time, he intended conscientiously to keep
his oaths. But it appears that he was at length
induced by the persuasions of some of his foreign
allies, to quit France, or at least to repair to söine
frontier towa, where he might be effectually as-
sisted in recovering his former liberty and autho-
rity. By adopting this measure, so fraught with
danger, the unhappy king hastened the downfal
.
1
7
I
433
of the monarcliy and his own destruetion. These
inevitable consequences were foreseen and pointed
out by one of the king's most faithful servants ;
but he preferred the advice of thiose who encou-
raged him to attempt his escape. The dire event
is well known* · Hence we see the danger of that
loose morality which rests on no surer foundation
than the doctrine of “general expediency.” Per-
haps it will not be universally admitted, that
extorted oaths and promises are naturally binding.
Yet the breach of an oath or promise, 'because it
was made-under apprehension and fear, seems to
be very clearly. condemned in the scriptures of
" truth.”+ History records a fáct which remark-
ably illustrates the sound policy as well as mo-
rality of performing such oaths. In the reign of
Henry III., a supreme council of twenty-four
barons was appointed, to whom unlimitted autho-
rity was granted to reform the state. They met.
at Oxford, where they made several regulations ;
and obliged the king himself to take ari oath,
that he would maintain whatever ordinances they
should think proper to enact. These reformers
soon abused their power, but no one was found
hardy enough to resist their tyranny. Even
* For a circumstantial account: of this affecting transaction,
see “Memoirs relating to the French Revolution, by the Mar-
quis de Bouillé.
.
| Compare 2 Chron. ch. xxxvi, to ver. 13, with Ezek. ch. xvii.
ver. 16 to 21. See also, 'Gisborne's Moral Philosophy, ch. xiv.
1
294
I
6C
į
prince Edward, the king's eldest son, after some
opposition, was constrained to take an oath, which
really deposed his family and subverted the con-
stitution. Afterwards, when this magpanimous
prince was applied to by the knights of the shires
to interpose and destroy this usurped authority of
the barons; he answered, “that though it was
" from constraint he had sworn to maintain the
provisions of Oxford, he was determined to
observe his oath.” By this scrupulous fidelity,'
säys Mr. Hume, the prince acquired the confi-
*dence of all parties, and was afterwards enabled
to recover fully the royal authority.' Him, who
honours God, he will honour.
Šven an heathen king acted under this persua-
sion in keeping his oath with his enemy; saying,
" that hereby his army was encouraged. For his
“ soldiers observed, that the power of the gods
" was with them ; and that they usually favoured
" those who kept their faith. *
There were some salutary lawys made during
the usurpation, which were confirmed after the
restoration. Amongst these, was the act of navi-
gation, which laid the foundation of our naval
greatness, and of the extension of our cominerce.
In the reign of Charles II. the doctrine and
consequences of military tenurés. were abolished,
* « Dicebat, se autem, servatâ religione, confirmare exerci-
“tum, quum animadverteret, deorum numen facere secum,
“ hominesque sibi conciliari amiciøres, quòd his studere consu-
èssent, qnos conservare fidem vidcrent.”
Corn. Nep. in vità Agesil.
5
435
except in the instance of corruption of blood
upon attainder.
attainder. The habeas corpus act, which so
effectually secures the subject from arbitrary im-
prisonment; the test and corporation acts, which
have been conducive to the permanency of our
civil and ecclesiastical establishments; with many
other laws for the increase of trade and commerce,
and the extension of our liberties, were passed
during this king's administration. In slrort, our
constitution attained at this period to its height of
theoretic perfection, although it is to be lamented
that there was a grievous departure from its true
spirit in the practical application of it during the
government of this licentious monarch.
The consequences of the arbitrary proceedings
of James II. clearly proved that the theory of the
constitution was completely matured. For when
this infatuated prince made the attempt, he found
it absolutely impossible to enslave the nation.
He learned by painful experience, tliat the people
could resist and compel him to quit his inglorious
enterprise and his throne together.
The conduct of James occasioned the memo-
rable revolution which was effected in 1688" by
the prince of Orange, afterwards king William III.
From that important period to the present time,
many wise and salutary laws have been enacted :
such as, the bill of rights; the toleration act, the
palladium of our religious liberty; the act of
of settlement; and the acts for uniting the three
kingdoms of England, Scotland, and Ireland into
one imperial dominion.
436
ܪ
Other laws have been passed, asserting our liber-
ties in more specific terms; regulating the succes-
sion of the crown; maintaining the superiority
of the laws above the king, by pronouncing the
dispensing power illegal ; and making the judges
entirely independent on the king, his ministers,
and successors. Several improvements, likewise,
have taken place with regard to private justice.
Amongst these may be mentioned, the solemn
recognition of the law of nations, with respect to
foreign ambassadors and their rights; the regula-
tions of trial by jury; and the admission of wit-
nesses for prisoners upon oath. During this
period too, the benefit of clergy has been ex-
tended; paper credit has been introduced, by
indorsements upon bills and notes; courts of
conscience have been enacted for the recovery of
small debts; and general warrants declared illegal.
Juries have been made the judges both of the law
and fact in cases of libels, and the liberty of the press
hereby made more secure. These are amongst
the most important alterations in favour of the
subject, during the last century. No reign, how-
ever, has been more distinguished by the increase
both of civil and religious liberty, than the present.
On ascending the throne, the king addressed the
parliament in the following energetic, words:
“ Born and educated in this country, I glory in
the name of Briton; and the peculiar ļappiness
" of my life will ever consist in promoting the
“ welfare of a people, whose, loyalty and warm
" affection' to me I consider as the greatest and
:
437
“most permanent security of my throne.” These
patriotic sentiments have not been changed during
a reign of fifty years; for on a late occasion,
his Majesty assured the corporation of London,
“ that it had ever been his object to secure to all
descriptions of his subjects, the benefits of reli-
gious toleration; and it afforded him particular
gratification to reflect, that during his reign
these advantages had been more generally and
." extensively enjoyed than at any former period.”
The complete independence of the judges; the
annihilation of the severe penal laws against pa-
pists ; the full toleration of religious worship to
every denomination, whether christian or not;
and the total abolition of the slave trade, so long
the disgrace of this free and enlightened country,
are sufficient to characterize the reign of George
III. as the era of practical liberality and freedom.
The bill for abolishing the slave trade received the
royal assent March 25th, 1807; and thus the inde-
pendence of one quarter of the globe was at length
asserted by the justice of the British parliament.
“ That's noble, and bespcake a nation proud
“And jealous of the blessing. Spread it then,
ss And let it circulate through ev'ry vein
• Of all your empire; that where Britain's power
• Is felt, mankind may feel her mercy too.
.
And where is the disinterested Briton who does
not rejoice that England has knocked off the
* Cowper's Time-piece.
1
438
chains, and will forge the ignominious yoke of
oppression for Africa no more! Where is the
christian, believing as he does in the retribution of
Divine Providence, who is not filled with aston-
ishment and gratitude when he reflects that such
an enormous mass of iniquity has fallen without
burying his beloved country under its ruins !
But it is customary to hear much about the in-
crease of the “ Influence of the Crown," a subject
to which the people are ever ready to lend an atten-
tive ear.
The credulity of Englishmen being
almost proverbial, it is no wonder if they believe
all that is asserted on this topic. The fact, how-
ever, has been lately very ably controverted by a
very competent judge. “ The greatly increased
" revenue,” says he, “and all the other augmented
« and accumulated business of the state, have
•s unavoidably occasioned some increase of pa-
tronage; but the influence created by such
means, is infinitely short of what has been given
up by the measures of economy and regulation,
" to which recourse has been had; and it will not
“ be denied, that the manners of the times, the
" existence of a watchful opposition, the modern
usage of parliament, the liberty of the press,
."and the unbounded circulation of the produc-
“tions which that liberty encourages, all conspire
“ to limit in practice that influence which in other
" times was so powerful and so prevailing. Not
“ to go back to the more ancient periods of our
history, when the great weight of the preroga-
439
* tive bore down all opposition, whether of the
parliament or the people; even since the prero-
gative has been defined and limitted by the revo-
lution, there has not been a reign in which the
“ influence of the crown has been so unceasingly
“ controlled by the jealousy of the house of com-
mons, as that of his present Majesty."*
We always, indeed, feel disposed to complain
of our own circumstances, and too highly extol
those of our ancestors. But their superior privi-
leges and advantages, like the innocence of shep-
herds and villagers, we apprehend are to be found
in the portfolios of poets, rather than in the pages
of impartial history. And however loud we may
he in our praises of their manners and happiness,
we should, probably, be very uuwilling to exchange
our own condition for theirs, who, we have little
doubt, were as dissatisfied with their lot as we are
with ours. Such, at least, seems to have been
human nature amongst the Romans, even in the
Augustan age.t “ But,” says an eloquent writer, ,
" whatever may be the representations of those
“ who, with little knowledge of facts, and still less
“ soundness or impartiality of judgment, affect to
* See “Observations, &c. &c." page 75, third edition, by
the Right Hon. George Rose.
t
“ Laudas
* Fortunam et mores antiquæ plebis ; et idem,
“ Si quis ad illa deus subito te agat, usque recuses."
Hor. lib. ii. sat. 7.
440
!
+
deplore the condition of England, it is never-
theless true, that there does not exist, and never
has existed elsewhere, so beautiful and perfect a
« model of public and private prosperity; so
magnificient, and at the same time so solid, a
“ fabric of social happiness and national gran-
deur,"* as that which Britons enjoy. When
we hear, then, so much said about the corruption
of parliament and the political degeneracy of the
times, we may reasonably ask: at what period of
our history was the parliament less under minis-
terial influence, that is,. less corrupt, than at
present? When was the liberty of the press less
restrained than in our days? When was the
practice of libelling public characters carried to
greater lengths, or connived at with greater tem-
per and forbearance than now? When were juries
more impartially impannellęd, and justice more
strictly and conscientiouly administered ? In
what reign was commerce more extended or trade
more flourishing? Our public burthens are cer-
tainly greatly increased, but when was the country
more able to bear them? In short, were the
rights of conscience ever better understood or
more respected than in the present day? . Surely,
before we implicitly believe all the complaints
which we daily hear, we should demand proofs
from those who make them, when it was that Old
.
See
A Letter on the Genius, &c. &c. of the French
" Governinent,” by an American, page 181, seventh edition.
441
66 has
England saw more golden days. “The English
“government,” says Professor Christian,
“ been improved and perpetuated by the united
“wisdom of Englishinen for ages, and we need
“not fear that it will ever be destroyed by their
folly and their fury. We have never yet lost, in
our laws and government, what was worth pre-
serving.” Our political vessel has, indeed, been
often tossed by the raging billows of foreign foes
and the noisy waterspouts of domestic parties;
but, laughing at their folly, she still rides tri-
umphantly in all her wonted majesty and glory,
the envy and admiration of surrounding nations.
Having completed our view of that beautiful
edifice under whose peaceful roof it is our felicity
to dwell; we shall only observe, that the care of
it is entrusted to the king, lords, and commons,
in parliament assembled. To them only it be-
longs to guard it against all assaults of its enemies,
and to repair and strengthen it from time to time,
that it may stand the bulwark of liberty and the
wonder of the world throughout all generations.
}
FINIS.
INDEX.
Page.
201
134
no
A.
ABBOT, archbishop, kills a gamekeeper,
Abdication of the throne, does not destroy the monarchy,
Advocates, who,
Alfred, king, first settled the militia,
Allegiance, meaning of,
Ambition, dangerous in a republic,
Attainder, consequences of,
how reversed,
Attorney-at-law, who, -
Authority, sovereign, where placed,
Aula regia, origin of the, -
287
239
195
70
400
408
286
1
1
.
1
30
293
1
360
317
228
232
B.
Bail, what,
Bar, trial at,
Baron, the most ancient title of nobility,
Baronet, origin of the title of, -
Bedford, duke of, degraded from his peerage,
Becket, archbishop, cause of his quarrel with the king,
Benefit of clergy, origin of,
consequences of,
Bills, how brought into parliament,
Bishops, twelve, impeached,
Bishops, seven of the, tried for a libel, -
Bounty, origin of queen Anne's,
British constitution, gradual improvement of the,
Burdett, Sir Francis, committed to the Tower,
-
231
67
393
398
104
68
163
170
413
79
INDEX.
443
Page.
162
93
212
314
}
275
309
112
128
100
200
213
165
275
347
1
30
1
114
121
C.
Camden, lord, inconsistency of,
Candidates for parliament, qualifications of,
Canonical obedience, oath of,
Case, special,
Caxton, Mr. introduces printing,
Challenges, of two kinds,
Charles I. his mistake in passing a bill,
the folly of the judges of
Chiltern hundreds, wbat,
Clergy, who are the,
their probable income,
convocation of the,
Coffee houses suppressed,
Commons, inquisitorial power of the,
Constitution, advantages of the British,
striking feature of the English,
the, disclaims the right of the people to
choose the king, -
Constables, two kinds of,
Corporations, origin of,
Coroner, office of, very ancient,
Counsel, have liberty of speech,
allowed to state criminals,
Counsellors, accountable for the king's conduct -
Crown, descends to either sex,
the king's title to the,
settled on the house of Hanover,
Cromwell, the crown offered to,
the usurpation of,
Curfew bell, still rung in some towns,
D.
Denizen, what,
Deodand, origin of a, -
Don Pantaleon Sa, executed for murder,
Doomsday, origin of,
Duelling, unlawful,
1
1
190
248
186
287
387
66
0
119
123
-
1
133
116
129
417
198
171
155
257
342
1
2 T 2
444
INDEX.
E..
Page.
Eurls, how addressed by Henry IV.
227
420
434
123
89
94
1
$
110
49
Edward I. greatly improves the laws,
Edward, prince, son of Henry III. anecdote of,
Egbert, the first king of England,
Electors, qualification of,
Elections, particulars respecting,
Elizabeth, queen, refuses 48 bills,
England, territory of, how divided,
criminal law of, not sanguinary,
Episcopacy, antiquity of,
Equity, mode of trial in courts of,
Established Church, advantages from the,
Evans Allen, Esq. appeal of,
Evidence, particulars concerning,
Excise laws, began by the republicans,
Execution of criminals, method of,
331
202
1
318
216
1
221
310
175
409
1
F.
Felon, reward to those who apprebend a,
outlawed, may not be killed by any one, -
Felony, meaning of,
Ferrers', Sir Henry, servant, acquitted of murder,
Feudal system, origin of the,
ultimate effects of in England,
Flower, Mr. Benjamin, committed to Newgate,
France, what tended to increase the horrors of the revo-
lution in,
359
372
397
359
255
419
83
65
344
1
440
361
G.
Gardiner, colonel, dignified conduct of,
George III. reign of, the era of practical freedom,
Gaoler, the duty of a, to prisoners,
Grace, act of, how passed,
Grand jury, probable origin of the,
oath of the,
abolished by the ministers of Henry VII. -
Grenville's act, use of,
107
364
365
369
1
98
INDEX.
445
H.
Habeas Corpus act, origin of the,
Henry VII. his feeble title to the crown,
Homage, meaning of,
Homicide, legal meaning of,
Page.
55
126
259
336
1
347
406
368
370
72
35
1.
Impeachment, what,
not abated by a dissolution of parliament,
Indictment, what,
Informations, what,
Interests, various, represented in parliament,
Judges, the, bound by oath,
discretion of the, regulated by law,
Judgment, may be reversed,
Juries, special,
mistaken tenderness of,
Jury, trial by,
unanimity of, accounted for,
recommends colonel Despard to mercy,
Justice, the several courts of,
400
0
402
307
339
382
390
392
283
K.
Kidderminster, barony of, very ancient,
King, the, said never to die,
coronation oath of the,
patriotic conduct of the,
the head of the church of England,
life of, endangered by a maniac, -
the, cannot pardon in all cases,
reign of the, favourable to liberty,
226
154
149...
160
16:5
1
1
(
388
1
3
405
436
268
25
L.
Lands, the devising of,
Law, different kinds of,
Luws, method of making,
Letters, the franking of,
Licence, terminates with the death of the incuinbent,
no
101
85
1
209
446
INDEX.
Page.
241
Lord-lieutenants, first introduced,
Lynn-Regis, appeal from the court at,
306
362
1
.
258
M.
Magistrates, finable for taking improper bail,
Magna Charta signed,
Manslaughter, definition of,
Members of parliament, rate of wages of,
Ministry, introduction of the christian, -
Monarchy, hereditary, preferable to an elective presidency,
More, Sir Thomas, first opposes a subsidy,
the first lay lord chancellor,
Murder, definition of,
punishment of
340
91
199
59
168
294
341
345
1
N.
1
179
198
103
340
1
National debt, origin of the,
Naturalization, what,
Newspapers, hint to printers of,
editors of, censured,
New Shoreham, election in the borough of,
New Testament, evidence of its divine authority,
Nisi prius, meaning of, -
Nonsuit, meaning of,
95
148
j
-
298
314
0.
Onslow, an opinion of Mr. Speaker, respecting the dis-
senting worship,
Oaths, constrained, binding,
222
438
P.
-
117
405.
1
Pack, Alderman, motion of,
Pardon, particulars respecting a
Parishes, perambulation of,
Parliament of England, account of the,
can alter the succession to the
crown,
vacancy in, how filled up,
49
59
120
94
INDEX.
447
Page.
Parliament of England, members of, serve for the whole
realm,
73
how sworn,
99
76
78
36
226
230
180
omnipotency of,
privileges of, -
Particular customs, what,
Peerage, origin of the, -
Peers, how to be tried,
Pensions, abolition of, would not diminish the taxes,
Persecution, did not suppress the reformation,
Poll, how long to be open at elections, -
Poor's laws, first enacted,
Pratt, chief justice, created a peer,
Precedency of rank, table of,
Presentment, what,
Privy council, what,
Proclamations, when binding,
Property, right of,
Pugilism, unlawful,
Punishment, human, considered,
427
97
429
357
234
362
143
162
56
340
327
136
Q.
Queen, the, acknowledged by the laws, -
Quo minus, meaning of,
Quorum, justices of the, who,
293
189
an
1
178
423
261
R.
Rambler, quoted,
Reformation, the, begun by Henry VIII.
Rents, origin of,
Representatires, number of the,
Reprieve, may be granted by the judge, -
Retaliation, an improper mode of punishment,
Riots, make an election void,
72
404
329
95
+
S.
Sarum, Old, representation of,
Saxon laws, most remarkable of the,
1
61
416
448
INDEX,
Page.
247
231
43
183
210
437
173
.
242
1
375
337
92
376
192
388
Sailors, privileges of,
Scandalum magnatum,
Scotland, public records of, lost,
Sheriff, duties of the high,
Simony, what,
Slave trade, abolished,
Smuggling, unlawfulness of,
Soldiers, privileges of,
Standing mute, equivalent to conviction,
Suicide, the sin of,
T.
Tooke, Rev. Horne, sits in parliament,
Turning king's evidence, mistake respecting,
Turnpikes, when first erected,
Treasong privilege of persons indicted for,
U.
Universities, permanently represented in parliament,
Verdict, special,
W.
Wales, prince of, regarded by the laws,
Warrants, rules concerning,
general, declared illegal,
We, the pronoun, first used in proclamations,
Westmoreland, shrievalty of, hereditary,
Wickliffe, John, dies a natural death,
Wills, of two kinds,
surrender to the use of,' --
Wilkes, John, Esq. obtains damages against the secretary
of state,
considered as an instrument in the
hands of Providence,
Y.
Yeomanry, origin of the band of,
menye
U
314
138
358
356
163
134
422
265
269
145
357
239
1
ERRATUM.
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UNIVERSITY OF MICHIGAN
3 9015 07343 5953
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