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 FROM THh LIBRARY OF 
 
 DR. FRANCIS LIEBKK, 
 Professor of History and Law in Columbia College, New York, 
 
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 MICHAEL REESE 
 
 Of San Francisco. 
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THE 
 
 BOOK OF THE CONSTITUTION 
 
 GREAT BRITAIN 
 
 CONTAINING 
 
 A FULL ACCOUNT OF THE RISE, PROGRESS, AND PRESENT CONSTRUCTION 
 
 OF THE 
 
 THREE ESTATES OF THE REALM, 
 l^injj, Itortrg, anU Common^; 
 
 OF THE VARIOUS COURTS OF JURISDICTION; 
 
 OF THOSE ACTS BY WHICH THE LIBERTIES OR RIGHTS OF 
 THE SUBJECT ARE AFFECTED. 
 
 BY THOMAS STEPHEN, 
 
 AUTHOR OF "THE HISTORY OK THE REFORMATION IN SCOTLAND," &C. 
 
 GLASGOW: 
 
 BLACKIE & SON, 8, EAST CLYDE STREET, 
 
 AND 5, SOUTH COLLEGE STREET, EDINBURGH; 
 W. CURRY, JUN., & CO., DUBLIN; AND.SIMPKIN & MARSHALL, LONDON. 
 
 MDCCCXXXV. 
 
:^t 
 
 ai 
 
 GLASGOW: 
 PRINTED BY GEORGE BROOKMAN. 
 
PREFACE. 
 
 The present work is intended to convey to the reader an account 
 of the various fundamental laws, usages, offices, and institutions, 
 which have arisen in this country in the course of ages, and which 
 form what is called The British Constitution. This " time- 
 honoured" fabric has been more frequently the theme of admiration 
 than of exposition. It was therefore conceived that a work intended to 
 explain, in a full and candid manner, the essential parts of its con- 
 struction, would have many claims on the attention of the public, 
 both in point of interest and utihty. The mixed character of the 
 British constitution renders a proper understanding of it more diffi- 
 cult than that of any other government. In its composition, mon- 
 archy, aristocracy, and democracy are blended; and it differs from 
 other governments in two important points; first, that much of the 
 power which usually centres in the crown, in Britain remains in the 
 hands of the nation; and, secondly, that the disposition of the ex- 
 ecutive officers to encroach on the rights of the people, is checked 
 by the constitutional responsibility of each officer. To foreigners, 
 it has long been an object of admiration : and a reflection on its 
 many excellencies, so far as the rights and personal liberties of the 
 subject are concerned, cannot fail, in this country, to excite a feeling 
 of honourable pride. 
 
 The British constitution has grown out of occasions and emer- 
 gency. It has gradually accommodated itself to change of circum- 
 stances and of national sentiment; to the fluctuating policy of dif- 
 ferent ages, and to the contentions and interests of various orders 
 and parties in the state. " By the constitution of a country," says 
 archdeacon Paley, " is meant so much of its law as relates to the 
 
IV PREFACE. 
 
 designation and form of the legislature ; the rights and functions of 
 the several parts of the legislative body; and the constitution, office, 
 and jurisdiction of courts of justice. Accordingly," says he, "the 
 constitution is one principal division, section, or title of the code of 
 public laws, distinguished from the rest by the superior importance 
 of the subject of which it treats. The terms, therefore, constitu- 
 tional and unconstitutional) just mean le^al and illegal. In Great 
 Britain the system of public jurisdiction is composed of acts of par- 
 liament, of decisions of courts of law, and of immemorial usage." 
 The benefit of laws and government is reaped by all. Few, how- 
 ever, consider the origin and fountain whence that benefit and those 
 laws proceed. Paley observes, " that government was at first 
 either parental or military." " Paternal authority," says he, " and 
 the order of domestic life supplied the foundation of civil govern- 
 ment. The condition of human infancy prepares men for Society, 
 by combining individuals into small societies, and by placing them 
 from the beginning under direction and control. A small family 
 contains the rudiments of an empire. The authority of one over 
 many, and the disposition to govern and be governed, are in this 
 way incidental to the very nature, and co-eval with the existence of 
 the human species. A parent would naturally," continues he, 
 "retain a considerable portion of his authority after his children 
 were grown up and had formed families of their own. This is the 
 second stage m the progress of dominion. The first was that of a 
 parent over his young children. The second that of an ancestor 
 presiding over his adult children." 
 
 In the following pages several important acts of parliament will 
 be found at full length. Others are abridged: but those which have 
 tended to improve the laws, or protect persons or property, are given 
 under the title " Rise, Progress, and Improvement of the Laws of 
 England." The reform acts for the three kingdoms, and the burgh 
 reform act for Scotland are given complete. The laws and institu- 
 tions of Scotland are here exhibited more fully than they have hitherto 
 been shown in any single publication. I have offered no opinions of 
 my own on any of the subjects treated of. The prerogatives of the 
 
PREFACE. 
 
 crown, and the privileges of parliament are detailed in the language 
 of Judge Blackstone and others. 
 
 To the politician, and every one, indeed, who takes an interest in 
 public matters, the present work, it is presumed, must be highly ac- 
 ceptable. And even in the ordinary transactions of mankind, it 
 must often prove of great utility, by explaining the legal rights of 
 individuals, the limits of jurisdiction, and the power of courts, 
 civil, military and ecclesiastical. 
 
 THOMAS STEPHEN. 
 
CONTENTS. 
 
 Introduction, 
 
 The Feudal System, 
 
 Magna Charta, 
 
 Bill of Rights, 
 
 Habeas Corpus, 
 
 Trial by Jury, 
 
 Treason, 
 
 Riots, 
 
 Praemunire, 
 
 British Parliament, .... 
 
 The Ancient Parliament of Scotland, 
 
 Of the Absolute Rights of Individuals, 
 
 Of the King's Royal Family, 
 
 Of the King, .... 
 
 Origin and Descent of the Royal Family of Scotland, 
 
 The King's Duties and Prerogatives, 
 
 Councils, . . . • • 
 
 Of Courts in General, 
 
 Courts of Common Law and Equity, 
 
 Ecclesiastical, Military, and Marine Courts, 
 
 Courts of Special Jurisprudence, 
 
 Proceedings in Courts of Law, 
 
 The Rise, Progress, and Gradual Improvement of the 
 
 Courts of Law in Scotland, 
 
 Lord Lieutenant and Parliament of Ireland, 
 
 Corporations, ..... 
 
 Military and Maritime States, 
 
 Aliens, Denizens, and Natives, 
 
 The Clergy, ..... 
 
 Relations in Private Life, 
 
 The United Church of England and Ireland, 
 
 Dissenters, . . . • • 
 
 Established Church of Scotland, 
 
 The Secession, .... 
 
 Poor Laws, . . . . • 
 
 Tithes, . . . . . • 
 
 
 
 
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 of England, 
 
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BOOK OF THE CONSTITUTION. 
 
 INTRODUCTION. 
 
 The British Constitution is worthy of being an object of inquiry to 
 every man who lives under it, and even to foreigners who have no im- 
 mediate connexion with it : remarkably distinguished as it undoubtedly is 
 from all the free governments of powerful nations which history has recorded, 
 by its exhibiting, after the lapse of centuries no symptoms of irretrievable de- 
 cay, but on the contrary the most expansive energy. In the ensuing work 
 we will trace the gradual formation of this system of government, and ex- 
 hibit the whole machinery of the constitution. 
 
 There are but three kinds of governments. When the sovereign power 
 is vested in one person, it is called a monarchy : if in all the nobles, it is 
 called an aristocracy, or an oligarchy if confined to a few of these : if an as- 
 sembly of the people have the chief authority, it is called a democracy or a 
 republic. Of all the different species of governments the monarchical is the 
 m.ost ancient and natural, originating at first in parental authority, hence 
 kings are called the fathers of their people. The Assyrian and Egyptian 
 monarchies are the most ancient that we read of, but there are several kings 
 mentioned in the scriptures in the early history of the patriarch Abraham. 
 The Jews were governed by God himself till Saul's time, from whence it has 
 been called a Theocracy ; after his elevation to the throne of Israel by God's 
 appointment, the government continued monarchical till the destruction of 
 the temple. Some monarchies are despotic, where the subjects are slaves 
 at the arbitrary power and wiU of their sovereign ; such as the Turks, and 
 other Asiatic nations : others political or paternal, >vhere the subjects, 
 like children under a father, are governed by equal and just laws, con- 
 sented to and sworn by all Christian princes at their coronations. Some 
 monarchies are hereditary, where the crown descends either to male heirs 
 only, as in France, or to the next of blood, as in Great Britain, Spain, Por- 
 tugal, &c. ; others elective, where upon the death of the reigning prince, 
 without respect to their heirs or next of blood, another by solemn election 
 is appointed to succeed them. This used to be the system in Poland be- 
 fore its partition, and formerly also in Denmark, Hungary, and Bohemia, and 
 is still practised in the United States of America ; for although their chief 
 governor is called a president, still he is their sovereign, and is elective. 
 
 A 
 
2 THE FEUDAL SYSTEM- 
 
 Some hereditary paternal monarchies are dependent "and held of earthly 
 potentates, consequently are obliged to do homage for their crowns. The 
 little island of Man was called a kingdom, and held in capite of the crown 
 of Great Britain ; the kingdom of Naples holds of the pope, and pays him 
 an annual tribute. Others are independent, acknowledging no earthly su- 
 perior, but hold from God only, hence the words Dei gratia, by the grace 
 of God, on their coins. 
 
 The kingdom of Great Britain is an hereditary paternal monarchy, go- 
 verned by one supreme independent Head agreeable to the known laws and 
 customs of the kingdom. It is a free monarchy, challenging above all 
 other European kingdoms a perfect freedom from any subjection to the 
 laws of the empire of Germany : for the Roman Emperors obtained an- 
 ciently the dominion of this land by force of arms, but afterwards abandon- 
 ing the same, by the law of nations the right returned to their former own- 
 ers. The British crown is entirely free from the least shadow of subjection 
 to the bishop of Rome, and is thereby relieved from many burdens and im- 
 posts under which other kingdoms groan ; such as Appeals to Rome in 
 ecclesiastical suits. Provisions, Dispensations, Confirmations, Bulls, &c. be- 
 sides several tributes and taxes paid to the Pope. There is no interregnum, 
 which saves us from the evils attending elective monarchies. By the neces- 
 sary concurrence of the Lords and Commons in making and repealing all 
 Statutes or Acts of Parliament, our monarchy has the double advantage of 
 an aristocracy and also of a democracy, without the disadvantages of either : 
 contributing by this happy blending of the three powers to the industry, 
 liberty and happiness of the people. Both England and Scotland have been 
 governed by kings as far back as history or tradition can carry us, without 
 any attempt at a change so that we seem to be naturally inclined to this 
 sort of government. 
 
 THE FEUDAL SYSTEM. 
 
 The Feudal System was so universally received throughout Europe 
 upwards of twelve centuries ago, that Sir Henry Spelman does not scruple 
 to call it the law of nations, in the western parts of the Old World. The 
 essential principle of a fief was a mutual contract of support and fidelity. 
 Whatever obligations of service to his lord it laid upon the vassal, corres- 
 ponding duties of protection, were imposed by it on the lord towards his vas- 
 sal. H these were trangressed on either side, the one forfeited his land, the 
 other his seigniory or rights over it. Nor were motives of interest left 
 alone to operate in securing the feudal connexion. The associations founded 
 
THE FEUDAL SYSTEM. 3 
 
 upon ancient custom and friendly attachment, the impulses of gratitude 
 and honour, the dread of infamy, the sanctions of religion, were all era- 
 ployed to strengthen these ties, and to render them equally powerful with 
 the relations of nature, and far more so than those of political society. It 
 is a question agitated among the feudal lawyers whether a vassal is bound 
 to follow his lord's standard against his own kindred, but a much mor« im- 
 portant one, whether he must do so against the king. In the works of 
 those who wrote when the feudal system was declining, this is commonly 
 decided in the negative, and to be equally rebellion in the vassal as in the 
 lord. 
 
 But the feudal polity, which was by degrees established over all the con- 
 tinent of Europe, was not received in England till after the conquest, when 
 William the Norman introduced it. But the Conqueror does not appear 
 to have effected the introduction of feudal tenures immediately, and when 
 lie did accomplish it, it was not by an act of his own arbitrary will, but was 
 graduaUy established by the Norman barons, and others in such forfeited 
 lands as they had received from the gift of the Conqueror, and afterwards 
 universally consented to by the great council of the nation, long after his 
 title was secured, and himself firmly seated on that throne which is still 
 filled by his descendents. 
 
 And although the era of this great revolution in landed property cannot 
 be exactly ascertained, yet there are some circumstances that may lead to 
 a probable conjecture towards it. For we learn from the Saxon chronicle, 
 that in the nineteenth year of King William's reign, an invasion was appre- 
 hended from Denmark ; and the Saxon military constitution being then 
 laid aside, and none other being introduced in its place, the kingdom was 
 wholly defenceless, which obliged William to bring over a large army of 
 Normans, who were quartered upon every landholder, and greatly oppressed 
 the people. This apparent weakness, together with the grievances occa- 
 sioned by a foreign force, might co-operate with the king's remonstrances, 
 and more readily incline the barons to listen to his proposals for putting 
 them in a posture of defence. For as soon as the danger was over, the 
 king held a great council to inquire into the state of the nation j the im- 
 mediate consequence of which was the compilation of the great suney 
 called Doomsday-Book, which was finished in the following year ; and in 
 the latter end of that very year, the king was attended by all his nobility at 
 Sarum, which does not appear to have been at that time a rotten bo- 
 rough, but of sufficient importance for a parliament to meet at it ; 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 per- 
 son. This new polity, therefore, seems not to have been altogether im- 
 posed by the Conqueror, but nationally and freely adopted by the general 
 assembly of the whole realm, in the same manner as the other nations of 
 
* THE FEUDAL SYSTEM. 
 
 Europe had before adopted it, and upon the same principle of self-se- 
 curity. 
 
 In consequence of this change, it became a fundamental maxim and 
 necessary principle of 'English tenures, " that the king is the universal lord 
 and original proprietor of all the lands in his kingdom ; and that no man 
 doth or can possess any part of it, but what has mediately or immediately 
 been derived as a gift from him, to be held upon feudal services." For, 
 this being really the case in pure, original, proper feuds, other nations 
 which adopted this system, were obliged to act upon the same supposition 
 as a subtraction and foundation of their new polity. And indeed, by their 
 consenting to the introduction of feudal tenures, our ancestors probably 
 meant no more than to put the kingdom in a state of defence by establish- 
 ing a military system, and to oblige themselves (in respect of their lands) 
 to maintain the king's title and territories with equal vigour and fealty, as 
 if they had received the lands from his bounty, upon these express condi- 
 tions, as pure, proper, beneficiary feudatories. But whatever their meaning 
 was, the Norman interpreters, skilled in all the niceties of the feudal constitu- 
 tions, and well understanding the import and extent of the feudal terms, gave 
 a very different construction to the proceeding, and therefore took a handle 
 to introduce not only the rigorous doctrines which prevailed in the duchy of 
 Normandy, but also such fruits and dependencies, such hardships and servi- 
 ces as were never known to other nations, as if the English had, in fact as wel! 
 as theory, owed every thing they had to the bounty of their sovereign lord- 
 
 The grand and fundamental maxim of all feudal tenures, is this, that all 
 lands were originally granted out by the sovereign, and are, therefore, holden 
 either mediately or immediately of the crown. The granter was called the 
 proprietor, or lord ; being he who retained the dominion or ultimate pro- 
 perty of the feud or feu : and the grantee, who had only the use and pos- 
 session, according to the terms of the grant, was styled the feudatory or 
 vassal, which was only another name for the tenant or holder of the land ; 
 though on account of the prejudices we have conceived against the doctrines 
 that were afterwards grafted on this system, we now use the word vassal 
 opprobriously, as synonymous with slave or bondman. The manner of the 
 grant was words of pure donation, dedi et concessi, which are still tlie 
 operative words in our modern infeodations or deeds of feoffment. This was 
 perfected by the ceremony of corporal investiture, or open and notorious 
 delivery of possession in the presence of the other vassals, which perpetuated 
 among them the era of the new acquisition, at a time when the art of 
 writing was very little known : and therefore, the evidence of property was 
 reposed in the memory of the neighbourhood, who in case of a disputed 
 title, were afterwards called upon to decide the difference, not only accord- 
 ing to external proofs, adduced by the parties litigant, but also by the in- 
 ternal testimony of their own private knowledge. 
 
THE FEUDAL SYSTEM. 5 
 
 Besides an oath of fealty, or profession of faith to the lord, which was 
 the parent of our oath of allegiance, the vassal or tenant, iipon investiture, 
 usually did homage to his lord ; openly and humbly kneeling, being ungirt, 
 uncovered, and holding up his hands both together between those of the 
 lord who sat before him ; and there professing that '* he did become his 
 man from that day forth, of life and limb and earthly honour :" and then 
 he received a kiss from his lord. 
 
 The ceremonies used in conferring a fief were principally three : hom- 
 age, fealty, and investiture. 1. The firsiwas designed as a significant expres- 
 sion of the submission and devotedness of the vassal towards his lord. In 
 performing homage his head was uncovered, his belt ungirt, his sword and 
 spurs removed ; he placed his hands, kneeling, between those of the lord 
 and promised to become his man from thenceforth j to serve him with life 
 and limb and worldly honour, faithfully and loyally, in consideration of the 
 lands which he held under him. None but the lord in person could accept 
 homage, which was commonly concluded with a kiss. 2. x\n oath of fealty 
 was indispensable in every fief ; but the ceremony was less peculiar than that 
 of homage, and it might be received by proxy. It was taken by the clei'gy, 
 but not by minors ; and in language, differed little from the form of hom- 
 age. 3. Investiture, or the actual conveyance of feudal lands, was of two 
 kinds, proper and improper. The first was an actual putting in possession 
 on the ground, either by the lord or his deputy ; which is called in law, 
 livery of seisin. The second was symbolical, and consisted in the delivery 
 of a turf, a stone, a wand, a branch, or whatever else might have been 
 made usual by the caprice of local customs. Immediately upon investiture 
 the vassal's duties commenced. These it is impossible to define or enu- 
 merate ; because the services of military tenure, were in their nature un- 
 certain, and distinguished as such, from those incident to feuds of an in- 
 ferior description. It was a breach of faith to divulge the lord's counsel, 
 to conceal the machinations of others from him, to injure his person and 
 fortune, or to violate the sanctity of his roof and the honour of his family. 
 In battle he was bound to lend his horse to his lord, when dismounted j to 
 adhere to his side while fighting j and go into captivity as a hostage for 
 him, when taken. 
 
 The lord was, in early times, the legislator and judge over all his feu- 
 datories ; and therefore the vassals of the inferior lords were bound by their 
 fealty to attend their domestic courts baron, (which were instituted in every 
 manor or barony for doing speedy and eff'ectual justice to all the tenants,) 
 in order as well to answer such complaints as might be alleged against them- 
 selves, as to form a jury or homage for the trial of their fellow ten- 
 ants, and upon this account, in all the feudal institutions, both here and 
 on the continent, they are distinguished by the appellation of the peers of 
 the court : pares curiis or pares airier. 
 
6 THE FEUDAL SYSTEM. 
 
 These were the principal and very simple qualities of the genuine or 
 original feuds, being then all of a military nature, and in the hands of mili- 
 tary persons ; though the feudatories, being under frequent incapacities of 
 cultivating and manuring their own lands, soon found it necessary to com- 
 mit part of them to inferior tenants, obliging them to such returns in ser- 
 vice, corn, cattle, or money, as might enable the chief feudatories to at- 
 tend their military duties without distraction ; which returns, or reditus, 
 were the original of rents. And by this means the feudal polity was greatly 
 extended j these inferior feudatories (who held what are called in Scots 
 law, '■^rere-feifs ") being under similar obligations of fealty, to do suit of 
 court, to answer the stipulated renders or rent service, and to promote 
 the welfare of their immediate superiors or lords. But this at the same time 
 demolished the ancient simplicity of feuds j and an inroad being once made 
 upon their constitution, it subjected them in course of time to great varie- 
 ties and innovations. Feuds came to be bought and sold, and other devia- 
 tions were made from the old fundamental rules of tenure and succession, 
 which >vere held no longer sacred, when the feuds themselves no longer con- 
 tinued to be purely military. 
 
 But as soon as the feudal system came to be considered in the light of a 
 civil establishment rather than as a military plan, the ingenuity of the same 
 ages, which perplexed all theology with the subtility of scholastic disqui- 
 sitions, and bewildered philosophy in the mazes of metaphysical jargon, be- 
 gan also to exert its influence on this copious and fruitful subject ; in pur- 
 suance of whicli the most refined and oppressive consequences were drawn 
 from what originally was a plan of simplicity and liberty, equally beneficial 
 botli to the lord and tenant, and prudently calculated for their mutual pro- 
 tection and defence. 
 
 In England there seems to have subsisted four principal species of lay ten- 
 ures, to which all others may be reduced ; the grand criterion of which were, 
 the natures of the several services or renders, that were due to the lords 
 from their tenants. The services in respect of their quality were either 
 fiee or base services, in respect of their quantity and the time of exacting 
 them were either certain or uncertain. Free services were such as were 
 not unbecoming the character of a soldier or a freeman to perform, as to 
 serve under his lord in the wars, to pay a sum of money, and the like. 
 Base services were such as were fit only for peasants, or persons of a 
 servile rank, as to plough Iiis lord's land, to make his hedges, to carry out 
 his dung, or other mean employments. The certain services, whether 
 free or base, were such as were stinted in quantity, and could not be ex- 
 ceeded on any pretence ; as to pay stated annual rent, or to plough such 
 a held for three days. The uncertain depended upon unknown contingencies ; 
 as to do military service in person, or to pay an assessment in lieu of it, when 
 called upon, or to wind a hora whenever the Scots invaded the realm 
 
THE FEUDAL SYSTEM. 7 
 
 of England, which were free services, or to do whatever the lord should 
 command, which was a base or villein service. 
 
 Forty days was the term generally settled as the measure of military 
 service, during which time the tenant of a knight's fee was bound to be in 
 the field at his own expense. But the length of service diminished with the 
 quantity of land : for half a knight's fee, but twenty days of service in the 
 field were due ; for an eighth part, but five days ; and when this was com- 
 • muted for an escuage or pecuniary assessment, the same proportion was 
 observed. Men turned of sixty, public magistrates, and women of course, 
 were free from personal service, but obliged to send substitutes. A failure 
 in this primary duty incurred perhaps strictly a forfeiture of the fief ; but 
 it was usual for the lord to amerce such vassals, which was called an es- 
 cuage. The Highland Clans followed their chief into the field, and like- 
 wise the Irish, but their tie was the double one of relationship as well as vas- 
 salage. The chieftain exercising the original patriarchal government over 
 his descendents, and followers. The feudal system did not exist till after 
 the conquest j and the kings of Scotland borrowed it, as they did many 
 other institutions, from England. 
 
 Frankalmoign was a tenure peculiar to the clergy, and Lord Coke 
 says, "no lay person can hold m frankalmoign {'' and according to 
 Lyttleton, on whom he comments, a tenant m frankalmoign is " where an 
 abbot or prior, or other man of religion, or of holy church, holdeth of his 
 lord in free alms.''^ The same author says that the service required by this 
 species of tenure was, " that they which hold in frankalmoign are bound 
 before God to make orisons, prayers, masses, and other divine services for 
 the souls of their granters or feoffers, and for the souls of their 
 heirs which were dead, and for the prosperity and good life and good 
 health of their heirs which are alive. And therefore they shall do 
 no fealty to their lord, because that this divine service is better for them 
 before God than any doing of fealty, and also because the words frank al- 
 moign exclude an earthly or temporal service." Under the Saxon mon- 
 archy, all the bishops of England, and such abbots and priors as held their 
 lands of the crown, held by this tenure. The change of those estates into 
 baronies, subject to homage and fealty, and held of the king by knight 
 service, was an important alteration, made by William I., in the English 
 constitution. But it was not understood that religious persons were bound by 
 this change, to perform military service like temporal barons. They were 
 either to find other men to do the duty for them, or to compound for their 
 service by fines to our sovereign lord the king. It would have been in- 
 decent and inconsistent with their sacred calling, to have obliged ecclesiastics 
 to bear arms, and therefore, in accordance with the wisdom and decorum 
 of the law, they were put upon the same footing as women possessed of 
 knights' fees. But there was no impropriety in their being required to find 
 
8 THE FEUDAL SYSTEM. 
 
 the king, of whom they held their baronies, either soldiers or money in lieu 
 of their personal services. 
 
 SoccAGE. Sir T. Lyttleton says, that every tenure which is not tenure 
 in chivalry, is a tenure in soccage ; and that a tenure in soccage is where 
 the tenant holdeth of liis lord the tenancy by certain service, for all manner 
 of services. Sir H. Spelman observes, from the ancient book of St Albans, 
 that socmen (or tenants in soccage) signified freeman in tlie genuine sense 
 of the word. All the king's tenants in ancient demesne held of him by 
 soccage tenure ; in some points it appears that they had more liberty than 
 the military tenants, that is, the feudal bonds were less strict on them and 
 their families, though the tenants by knights' service was the higlier and 
 more honourable service. In Doomsday- Book, they are distinguished 
 from other free tenants, by the denomination of liberi homines, not having 
 the power which the knight-service tenants possessed, of givmg away or 
 selling their estates, without permission from their lords. It seems that 
 these liberi homines were a remainder of the allodial tenants of the Saxon 
 folkland, that is, land of tlie vulgar, as opposed to bocla?id, or thaneland- 
 A certain number of them was necessary to constitute a manor, and tliere- 
 fore when that number was* mcomplete, some who held in villeinage were 
 enfranchised, to make it up. Sometimes those who were in possession of 
 this allodial freedom, found it necessary to seek a defence and protection, 
 by placing themselves under the protection of some feudal lord, or even of 
 two lords, if the situation of their lands made it necessary for them to have 
 two protectors. It is probable, that this practice becoming more general, in 
 process of time, put an end to this species of tenure. Their real services 
 to the lord of the manor in their allodial state, were predial and rustic. A 
 certain number of free socmen (as well as these) appears to have been 
 necessary to every lord of a manor, for holding the pleas of the manor court, 
 which the Saxons called soke or soc, a word signifying a franchise, or ju- 
 risdiction to which a franchise was annexed. And it is evidently from 
 this tliat the words socmen and soccage were derived. Some of the lands 
 held in soccage were held by base services, and at the will of tlie lords, but 
 the definition given of it by Lyttleton, and other great authorities, excludes 
 from it all tenures where the service was uncertain. Among the legantine 
 canons made at London by the bishop of Winchester, in the reign of king 
 Stephen, Lord Lyttleton produces one which says, " that the plough and 
 husbandmen in the fields should enjoy the same peace as if they were in the 
 churchyard." This sanctuary given to the cultivators of the soil on their own 
 grounds, might, if duly regarded, have been of inunense benefit to the people. 
 But unfortunately, the civil wars which so often scourged tlie kingdom, 
 paid little respect to either spiritual or temporal laws. A ccording to Lyt, 
 tleton, burgage tenure was one kind of soccage,,but with various customs. 
 The statute of the 12th of Charles II. entirely changed this constitution 
 
THE FEUDAL SYSTEM- 9 
 
 of property : it declared " that all tenures by knights' service of the king, 
 or of any other person, and by knights' service in capite, and by soccage in 
 capite of the king, and the fruits and consequences thereof, shall be taken 
 away or discharged, and that all tenures of any lionours, manors, lands, ten- 
 ements, hereditaments, &c. are turned into free and common soccage :" 
 TIius, says my Lord Lyttleton in his history of the life and reign of Henry 
 II. " extending that tenure, which, for several ages, was reckoned com- 
 paratively mean and ignoble, to all estates of our nobility and gentry, who 
 would have anciently thought tit the greatest injury and dishonour to have 
 had their possessions so levelled with those of the vulgar. Yet to this 
 change, which a gradual alteration of manners and juster notions of gov- 
 ernment had prepared us to receive, is owing much of the happiness of our 
 present condition. But, at the same time, it has obliged us to seek for 
 other methods of givuig a military strength to the kingdom consistent with 
 our monarchy, and not dangerous to our freedom : a matter of no little dif- 
 ficulty, but which, if brought to perfection, would secure and perpetuate 
 the advantages, which we have over our ancestors, in the civil policy of the 
 kingdom." 
 
 Villeins. In Doomsday-Book, a distinction is made between villeins who 
 were affixed to a manor, and others of a still lower and more servile con- 
 dition, distinguished by the names of bordarii, cotarii, and servi ; the two 
 first of which seem to have rented small portions of land, and the last to 
 have been hinds, or menial servants, residing in the families of their lords. 
 If a free woman was married to a villein by birth, she lost her freedom 
 during the life of her Imsband, and the children of such marriage became 
 also slaves, and which state of servitude continued to all succeeding genera- 
 tions, unless their lord enfranchised them by his own act. Glanville says, 
 that in his time, if a freeman married a woman born in villeinage, and who 
 actually lived in that state, he thereby lost the benefit of the law, (that is, 
 all the legal rights of a freeman,) and was considered as a villein by birth, 
 during the lifetime of his wife, on account of her villeinage. And that if 
 a man, born in villeinage, had children by a woman born in the same state, 
 under a difTerent lord, the children ought to be equally divided between 
 the two lords. This is absolutely putting children on the same foot as 
 cattle, and is more unnatural than our present laws of slavery in the West 
 India Colonies, where in such a case as that now mentioned, the children 
 are always esteemed, without challenge, the property of the mother's lord. 
 
 There were several methods of enfranchising villeins. If his lord, being 
 willing to give him his freedom, had proclaimed him free from all right 
 that he or his heirs might have to him, or had given or sold him to another, 
 for the purpose of being enfro.jichised. But according to Glanville, no 
 villein could purchase his freedom with his own money, because all the 
 goods belonging to a villein bom belonged to his lord, and therefore he 
 
1 THE FEUDAL SYSTEM. 
 
 could not redeem himself with his master's money ; but he might with the 
 money of another man. In this respect also our negro slaves have an advantage 
 over the old English slaves, for their property is absolutely their own, and 
 guaranteed to them by the colonial laws. The same author says, " that if 
 a villein bom had remained quietly, (that is, unclaimed by his lord,) a year 
 and a day, in any privileged tomi ; so that he had been received into their 
 community or gt/ld, as a citizen, he was thereby freed from his villeinage." 
 A jjrivileged town is one that had franchises by prescription or charter. 
 According to lord chief justice Bracton, a quiet residence of a year and a 
 day, on the king's demesne lands,would also enfranchise a villein who had 
 fled from his lord. There is a law of William the Conqueror, where it is 
 enacted, " that if any one is willing to free his slave, let him deliver him by 
 his right hand to the sheriff, in full county court, and proclaim him dis- 
 charged by manumission, from the yoke of his servitude ; and let him show 
 him the doors open and his way free, and put into his hands the arms of a 
 free man, namely a lance and a sword, wliich being done, he is made a 
 freeman." Bracton relates, that the lives and limbs of slaves were under 
 the king's protection, so that if a lord killed his slave, he should suffer the 
 same punishment as if he had killed any other person. The chastity of 
 female slaves was likewise protected from all violence by the laws of those 
 times, and the goods of villeins were secured against all others, except their 
 lords. 
 
 Homage. Homage was done by the vassal on his knees, unarmed and 
 bareheaded, and holding both his hands between those of his lord, who was 
 sitting : which ceremonies denoted, (according to Bracton,) on the part of 
 the lord, protection, defence, and warranty ; on the part of the tenant, 
 reverence and subjection. In a statute of 17 Edward II., there is a set 
 form of words to be used by the vassal, where homage was done to a subject. 
 Kneeling before his lord, as before related, he was to say, " I become your 
 man from this day forward, of life, limb, and earthly honour ; I will be true 
 and faithful to you, and bear to you faith for the lands I hold of you, saving 
 my faith to our lord the king and his heirs." After repeating these words, 
 the lord kissed the vassal, who then rose up and took the oath of fealty as 
 follows : " Hear this, my lord, that I will be faithful and loyal to you, and 
 will bear to you faith for the tenements which I hold of you, and loyally will 
 perform to you the customs and services which I owe to you, at the terms 
 assigned, so help me God and his saints." 
 
 Homage done to the king was called leige homage, and was accompanied 
 with the oath of allegiance expressed in these words ; " I become your liege 
 man, of life and limb, and of earthly worship ; and faith and troth I shall bear 
 unto you, to live and die against all manner of folk, so help me God." The 
 ceremony was precisely the same otherwise, as in doing homage to a mesne 
 lord. In the year 1039, Anselm, on being promoted to the see of Can- 
 
THE FEUDAL SYSTEM. 1 1 
 
 tprbury, refused to do homage to Henry I., because some popes, and councils 
 held under their influence, liad prohibited ecclesiastics from making such an 
 acknowledgment to princes. Anselm declared, that " he would not become 
 the man of any mortal, nor swear fealty to any ;" in which resolution he 
 was zealously supported by the whole strength of the papacy ; but after a 
 long and severe contest, pope Paschal II. conceded that the bishops elect 
 might do homage and take the oath of fealty, before they were consecrated. 
 This was confirmed by the Constitutions of Clarendon, where a dangerous 
 clause, saving his order, was allowed to be inserted ; all obligations contracted 
 by the oath, might, according to the doctrines of the Church of Rome, be 
 eluded and cancelled by means of this clause ; and in the dispute between 
 Becket and Henry II., the former expressly pleaded it in justification of 
 his own rebellion. 
 
 Knighthood — The very singular spirit of chivalry, which began to 
 display itself about the era of the Conquest, was introduced by the Nor- 
 mans, and gave an entirely new turn to the education of the young nobi- 
 lity and gentry, preparatory io their obtaining the honour of knighthood, 
 which was then, and for ages afterwards, an object of ambition to the 
 greatest princes. At his first entrance into the school of chivalry, a young 
 aspirant acted in the capacity of a page ; in which situation he was instruct- 
 ed in the laws of courtesy and politeness, and in the first rudiments of 
 chivalry and martial exercises, to fit him to shine in courts, at tourna- 
 ments, and on the field of battle. After spending some years in the 
 station of a page, he was advanced to the more honourable rank of an 
 esquire, admitted into more familiar intercourse with the knights and 
 ladies of the court, and perfected in dancing, riding, hawking, hunting, 
 tilting, and other knightly accomplishments. In short, as the courts of 
 princes and the greater barons were a sort of colleges of chivalry, as the 
 universities were of the arts and sciences ; after spending seven or 
 eight years in the capacity of esquire, he received the honour of knight- 
 hood, commonly from the hands of the prince, earl, or baron in whose 
 court he had spent his youth, and received his education. When 
 the honour of knighthood was conferred, it was accompanied with a 
 solemn religious engagement. Some eminent writers have been of 
 opinion, that the origin of knighthood was a voluntary association of 
 private men for defence, but more especially for the defence of unpro- 
 tected females, from the many grievous disorders that infested all Europe 
 on the decline of the dynasty of Charlemagne. Others are inclined 
 to derive it from a custom observed by Tacitus among the ancient Germans, 
 of bestowing arms on their young men in the public assemblies, and the 
 adoption per arma, practised by the Goths, and some barbarous nations. 
 However that may be, it is probable, that the confusion and violence of those 
 times made the order of knighthood more general, as being more necessary : 
 
12 THE FEUDAL SYSTEM- 
 
 and might also occasion its consecration by solemn vows and religious rites 
 and ceremonies. Lord Lyttleton says, the first mention made of those 
 ceremonies in England, is by Ingulphus, who wrote in the reign of William 
 the conqueror. He says it was the custom of the Saxons in England, that 
 the knight elect should prepare for knighthood by confession and absolution 
 of his sins the evening before, and afterwards by watching all night in the 
 church ; that in the morning he should offer his sword on the altar, and 
 again receive it, blessed, from the priest ; afterwards he should hear mass and 
 receive the sacrament, when the priest placed his good sword about his neck, 
 accompanied with a benediction to himself. But the Normans abominated 
 this manner of consecrating the knights, despised those who were so made, 
 and altered the custom. Other ceremonies were practised, yet the sword 
 still continued to be received from the altar. The candidate was bathed to 
 betoken purity, after which he was girded with his sword, a pair of gilt spurs 
 were affixed to his heels, and the person conferring struck him gently on the 
 neck, head or shoulders, saying, " hi the name of God, St Michael aftd St 
 George, I make thee a knight ; be thou brave, hardy, and loyal'"' A gor- 
 geous robe of scarlet or green was afterwards flung round Iiis shoulders, and 
 tlie whole solemnity was graced with the presence of the fair sex, the songs 
 and music of minstrels, and other marks of rejoicing and honour. An 
 esquire was not permitted to wear any gold, nor the same dress as the knight, 
 even although they were of the highest quality. 
 
 In time of war and actual service, the usual forms were much abridged. 
 The person to be knighted presented a sword to the king, or commander-in- 
 chief, if the king was not with the army, and desired to receive the order of 
 knighthood, which was bestowed with no other ceremony, than a stroke on 
 the neck with that sword. Before an assault, or any perilous action, it was 
 customary to make a number of knights in this manner, as an encouragement 
 to those who were thus chosen out from all the esquires there present, to 
 act not unworthily of the dignity they received. The same thing was done 
 at the conclusion of a battle or siege, or other military exploit, as a reward 
 to those who had distinguished themselves by their valour. And this was 
 justly esteemed the most honourable knighthood. In France the order was 
 given with the following words ; " I make thee a knight in the name of 
 God and my lord St George, to maintain the faith and justice loyally, and 
 defend the church, women, widows, and orphans." — Mons. La Curne de 
 Sainte Paylaye, in his Memoirs of Ancient Chivalry, describes the cere- 
 mony of knighthood to have been preceded by seven fastings ; nights spent 
 in prayer in a church or chapel ; penance, and the eucharist received with 
 devotion ; bathing, and putting on white robes, as emblems of that purity 
 of manners required by the laws of chivalry ; confession of all their sins ; 
 with serious attention to several sermons, in which the faith and morals of 
 a good Christian were explained. When a candidate for the honour of 
 
THE FEUDAL SYSTEM. 13 
 
 knighthood had performed all these preliminaries, he went in procession 
 into a church, and advanced to the altar with his sword slung in a scarf 
 about his neck. He presented his sword to the priest, who blessed it, and 
 put it again into the scarf, about the neck of the candidate j who thence 
 proceeded in a solemn pace, with his hands joined, to the place where he 
 was to be knighted. This august ceremony was most commonly perform- 
 ed in a church or chapel, in the great hall of a palace or castle, or in the 
 open air. When the candidate approached the personage by whom he 
 was to be knighted, he fell on his knees at his feet, and delivered to him 
 his sword. Being asked for what end he desired the honour of knighthood ? 
 and having returned a proper answer, the usual oath was administered to 
 him with great solemnity. After this, knights and ladies, who assisted at 
 the ceremony, began to adorn the candidate with the armour and ensigns 
 of knighthood. First, they put on his spurs, beginning with the left 
 foot J next his coat-of-mail ; then his cuirass ; afterwards the several 
 pieces of armour for his arms, hands, legs, and thighs ; and, last of all, 
 they girt him with the sword. When the candidate was thus dubbed^ as it 
 was called, the king, prince, or baron, who was to make him a knight, 
 descended from his throne or seat, and gave him, still on his knees, the 
 accolade^ which was three gentle strokes, with the flat of his sword, on the 
 shoulder, or with the palm of his hand, on the cheek, saying, at the same 
 time, " In the name of' God, St Michael, and St George, I make thee a 
 k7iighi ; be thou brave, hardy, and loyal.'"' The new knight was then 
 raised from the ground, his helmet put on, his shield and lance delivered 
 to him, and his horse brought j which he mounted without using the 
 stirrup, and performed several courses, displaying his dexterity in horse- 
 manship, and in the management of his arms, amidst the acclamation of 
 the spectators. No institution could have been better adapted, in these 
 rude times, for inflaming the minds of the warlike nobility with ardour 
 to acquire those accomplishments, which were indispensable in the character 
 of a true knight ; which were beauty, strength, and agility of body ; great 
 dexterity in dancing, wrestling, hunting, hawking, riding, tilting, and 
 every other manly exercise ; also the virtues of piety, chastity, modesty ; 
 and, above all, an inviolable attachment to truth, and invincible courage. 
 A knight was tacitly bound to the especial defence and protection of 
 the church. The ceremony of taking their swords from the altar, and the 
 priest's solemn benediction, indicated their being enlisted in the service of 
 the altar, the assistance of the poor and oppressed, the punishment of evil 
 doers, and the emancipation of all from tyranny and wrong. But it fre- 
 quently happened that many of these knights acted as if their vow had been 
 quite the contrary, especially with respect to the church. 
 
 Every knight had a power, inherent in himself, of making other knights, 
 not only in his own country, but wherever he went ; and what seems more 
 
14 THE FEUDAL SYSTEM. 
 
 extraordinary, was sometimes conferred in England, by those who were not 
 knights themselves, and were indeed incapable of that honour, as bishops and 
 abbots. William Rufus was knighted in his father's lifetime by Lanfranc, 
 archbishop of Canterbury. The foundation of this privilege must undoubt- 
 edly have been a notion, that the order being conferred with sacred rites and 
 forms of prayer, was a kind of religious institution. During the reign of 
 king Stephen, the earl of Gloucester knighted his brother, afterwards earl 
 of Cornwall, and history exhibits many examples of this power or privi- 
 lege having been exercised by private persons in England, without the au- 
 thority of a royal commission. Some English kings have themselves been 
 knighted by the " honour-giving hands" of their subjects. This order was 
 conferred on Henry VI. by the duke of Bedford, and on Edward VI. by 
 the duke of Somerset. Knighthood was therefore distinguished from all 
 other honours and dignities in the state by this remarkable difference, that 
 those were derived from the king, as their fountain and head, but this might 
 be conferred on the king himself, by his subjects. It might also be given 
 by any sovereign prince in the territory of another, and the rank assigned 
 to it was the same in all Christian countries. Among the early Norman 
 monarchs, even enfranchised villeins born in servitude were sometimes 
 knighted, when they had performed some very extraordinary actions in 
 war, after having obtained their freedom. 
 
 Constable. — William the Conqueror rendered many of the household 
 offices hereditary, which considerably increased the power of the nobility j 
 among these were the offices of the Constable, Chamberlain, and Sene- 
 schal. In the 13 statute of Richard II., the authority and jurisdiction be- 
 longing to the office of the Constable of England, is partly defined ; it is 
 there said, " That he ought to have cognizance of contracts touching 
 feats of arms and of war out of the realm, and also of such things relating 
 to arms or war within the realm, as could not be determined or discussed 
 by the common law, with other usages and customs appertaining to the 
 same matters, which other constables before that time had duly and rea- 
 sonably used." Madox, in his history of the Exchequer, says, " he was 
 a high officer both in war and peace, and observes that the word signifies 
 a captain or commander. Yet it did not always follow that the Constable 
 commanded the royal armies in the absence of the sovereign. Henry de 
 Essex and Humphrey de Bohun, who were Constables in Henry II.'s 
 reign, never commanded in chief. Henry de Essex was the hereditary 
 standard-bearer of England, but it does not very clearly appear whether 
 that honour belonged to him as Constable, or was a distinct office held by 
 a different tenure in conjunction with the other. He forfeited the dignity 
 of Constable in consequence of a duel which he fought with Robert de 
 Montfort. Humphrey de Bohun afterwards acquired the dignity of Con- 
 stable by virtue of his marriage with Margaret, eldest daughter of Milo, 
 
\ 
 
 THE FEUDAL S\STEM. 16 
 
 rarl of Hereford, who, by the death of her brothers, became the heiress of 
 all her father's honours, of which the office of Constable was one. It is 
 not related how it had come into the family of Hereford, but it is most 
 likely that after the forfeiture of Henry de Essex, the office had been con- 
 ferred on the earl of Hereford. But from the time of the marriage just 
 named, the Bohuns possessed that high dignity for ten generations. It 
 appears by a record that, in the reign of Edward III., Humphrey de Bo- 
 hun, the last of that name, held several manors by the service of being 
 Constable of England. And in the reign of Henry VIII., it was decreed 
 by all the judges, " That this office might be annexed to lands, and de- 
 scend even to females, who, while they remained unmarried, might appoint 
 a deputy to do the service for them ; but after marriage it was to be done 
 by the husband of the eldest alone." They also decreed, " That the ser- 
 vice was not extinct, though part of the lands for which it was done, fell 
 into the hands of the king, to whom it was due, but remained entire in 
 the eldest daughter ; yet that the king might refuse the service, and not 
 be forced to use the ministry of an unworthy person." Of which deci- 
 sion Henry took advantage to reject the claim of the duke of Bucking- 
 ham, who derived his title to it from the eldest daughter of the last Hum- 
 phrey de Bohun. After the death of that duke, the office was never re- 
 vived. An old author, in describing the business done by the Constable 
 at the Exchequer, where he had a seat by virtue of his office, says, " that 
 when the king's mercenary soldiers came there to receive their pay, it was 
 his duty to examine their demands and accounts, with the help of his 
 clerk, and see that the sums due to them were paid at the proper terms." 
 
 In Scotland, the earl of Errol is hereditary lord high Constable, and the 
 powers attached to that office are very transcendent. In all royal armies 
 and expeditions, the Constable was lieutenant-general, and supreme officer 
 next the king. He had the command, direction, and government in the 
 army, and was sole judge in all military affairs. He was, (and still is at 
 present, when the king resides in Scotland,) supreme judge in all cases of 
 riot, disorder, blood, and slaughter committed within four miles of the 
 king's person, or of the parliament, or of the council representing it. He 
 guards the king's person in time of parliament, keeps the parliament house, 
 and commands all guards and men at arms attending the king's person at 
 such times. He rides on the king's right hand, and carries a white baton 
 in token of command, sits in parliament apart from the rest of the nobility, 
 on the king's right hand, having the regalia lying before him. 
 
 By the statute 13 Edward I. made at Winchester, it is enacted, " In 
 every hundred and franchise, two constables shall be chosen to make the 
 view of armour, and they shall present defaults of armour, and of suits of 
 towns, and of highways, and such as lodge strangers in uplandish towns, 
 for whom they will not answer." 
 
16 THE FEUDAL SYSTEM. 
 
 At the present day, the chief business of a liigh constable is not appro- 
 priated to them as such, but only as officers to execute the precepts of 
 justices of the peace. The original and proper authority of a high con- 
 stable seems to have been precisely the same as that of a petty constable. 
 The surveying of bridges, the issuing of precepts regarding the appoint- 
 ment of overseers for the poor, surveying of highways, assessing the land 
 tax and window duties, the viewing of armour, are official duties vested 
 in him as matters of convenience and not of necessity, and which is a mat- 
 ter of discretion with justices of the peace whom they will appoint. Also 
 as a matter of convenience, other duties have been superadded to this of- 
 fice, by different acts of parliament, such as the issuing precepts for licens- 
 ing ale-houses, for levying county rates, and for returning lists of jurors. 
 
 All the inhabitants of a town are liable in turn to serve the office of 
 high constable, but to this there are of course exceptions. The president, 
 commons, and fellows of the faculty of physic in London, are exempt, also 
 surgeons in London, apothecaries in, and for several miles round London, 
 and in the country also, where they have a seven years' apprenticeship. A 
 sworn attorney or other officer of the courts at Westminster, may be 
 chosen, but can be discharged from serving by a writ of privilege, as his 
 attendance on the courts being indispensable, incapacitates him from per- 
 forming the necessary duties of the office j barristers and the servants of 
 members of parliament are likewise for the same reasons exempt. Alder- 
 men of London, although chosen, cannot be compelled to serve ; officers 
 of the guards are not exempt from serving, although both officers and 
 men of the militia are. The clergy, and all dissenting preachers, after 
 subscribing and taking the oaths, are exempt ; so likewise is the prosecutor 
 of a felon to conviction. 
 
 This office being entirely ministerial, and noways judicial, a constable 
 may appoint a deputy, in the case of sickness or absence, or any other 
 cause, but he must answer for the faithful execution of his office by his 
 deputy. Dissenters who scruple to take the oaths may also appoint a 
 deputy. 
 
 By the common law every high and petty constable are conservators of 
 the peace. And therefore whoever makes any affray or assault on another 
 person in the presence of a constable, or threatens to kill, beat, or hurt 
 another, or in any way breaks the peace, he may commit such offender to 
 the stocks, or any place of custody, and afterwards carry him before a 
 justice or to jail, until he finds security to keep the peace. But a con- 
 stable, not being a judge of record, cannot take any man's oath for an of- 
 fence not committed in his own view. 
 
 When a constable is chosen, and on entry to his office, he takes the fol- 
 lowing oath : 
 
 " You shall well and truly serve our sovereign lord the king in the office 
 
THE FEUDAL SYSTEM. 17 
 
 of Constable, for the township of , for the year ensuing, (or until 
 
 you be lawfully discharged therefrom, or until another shall be sworn in 
 your place ;) you shall well and truly do and execute all things belonging 
 to the said office, according to the best of your skill and knowledge. So 
 help you God." 
 
 Mareschal op England. — This office was executed partly in the 
 king's army in time of war, and partly in his court in time of peace. His 
 military functions consisted partly in conjunction with the constable in 
 giving certificates to the barons of their having duly performed the ser- 
 vices required of them in the king's armies, from which it would appear 
 that these officers had a legal superintendency over the royal army. It 
 appears, however, from Rymer, that in Edward I.'s reign, the Mareschal's 
 post was in the vanguard, and that it was his duty as well as the Cons- 
 table's, to muster the forces. Mr Madox (Hist, of the Exch.) relates that 
 his civil duties were to provide for the security of the king's person in his 
 palace, to distribute the lodgings there, to preserve the peace and order 
 in the king's household, and to determine controversies arising among them.. 
 He also performed certain acts either by himself or his substitutes at the 
 king's coronation, at the marriages and interments of any member of the 
 royal family, at the creation of barons and knights, and at other great and 
 ceremonious assemblies of the king's court. It is said in the dialogue de 
 Scaccario, that no business of importance ought to be done without con- 
 sulting the mareschal. In the reign of Henry II., this high office was held 
 by a family who seems to have taken their name from thence, and were 
 only of the rank of barons ; but under Richard I., William Mareschal hav- 
 ing obtained the earldom of Pembroke, was afterwards styled Earl Mare- 
 schal : and as from that time this office has continued in the possession of 
 earls, though of different houses, it is now always called the office of Earl 
 Mareschal : and its power seems to have increased from the dignity of the 
 noblemen who have held it. At present the duke of Norfolk is hereditary 
 Earl Mareschal of England. Originally it signified master of the horse to 
 the king. 
 
 Seneschal. — The office of seneschal was much the same as that of grand 
 justiciary, and indeed they were so closely allied, that they could not very 
 well subsist together, their functions and dignity being nearly the same. In 
 the time of the early Norman sovereigns, it was inferior to the grand jus- 
 ticiary, and does not appear to have been very different from tlie office of 
 lord steward of the household at present, but its jurisdiction afterwards was 
 greatly increased. 
 
 The Grand Justiciary of England. — Spelman says, that origin- 
 ally under this office were executed the several powers and functions of the 
 chief justice of the king's bench, the chief justice of the common pleas, the 
 chief baron of the exchequer, and the master of the wards. He was too great 
 
18 
 
 THE FEUDAL SYSTEM. 
 
 for a subject ; but the office was neither hereditary nor held for life ; and he 
 was oblig^ed to appoint a number of deputies. Several persons were frequently 
 found in commission in the execution of the office, which deprived it of its 
 dangerous splendour. Mr Madox relates, (Hist, of the Exch.) that for 
 some time after the conquest, the chief justiciary used to do many acts, which 
 afterwards appertained to the treasurer's office. Notwithstanding, there 
 was a treasurer then among the great officers of the king's court, of whose 
 functions the same author gives this account. "It seems to have been the 
 part or duty of the treasurer in ancient times, to act with the other barons 
 of the exchequer in the government of the king's revenue, to examine and 
 control accountants, to direct the entries made in the great roll, to attest 
 the writs issued for levying the king's revenue, to supervise the issuing and 
 receiving the king's treasure at the receipt of the exchequer, and in a word, 
 to provide for, and take care of, the king's profit." 
 
 In the dialogue de scaccario it is stated, that the grand justiciary of En- 
 gland " was great in the exchequer as well as in the court, so that nothing 
 of moment was or could be done there, without his consent or advice," and 
 that he usually presided under the king in the court of exchequer ; next 
 to him sat the chancellor, then the constable, then the chamberlain, and 
 lastly the mareschal ; but the power of the justiciary declined in proportion 
 as that of the chancellor increased, and it is supposed that the increase of 
 power and splendour acquired by the chancellors was in a great measure 
 owing to the greatness of some of the illustrious individuals who had borne 
 that office. Madox likewise says, " that the splendour of the king's court 
 appeared very much in the greatness of his officers and ministers. But 
 some of them were so great and splendid, as instead of augmenting served 
 to diminish the splendour of their master, and attract the eyes of his 
 other subjects from himself to them ;" among which number was this 
 office of grand justiciary, and perhaps that may have been one cause of its 
 abolition. 
 
 Henry VIII. first appointed Lord Lieutenants of counties to act as re- 
 presentatives of the crown, to keep their respective counties in military 
 order. 
 
 The English counties are divided into six circuits for the accommodation 
 of the judges, called the Home, Norfolk, Western, Oxford, Midland, and 
 Northern. Two judges are fixed to go upon each of these, at the assizes 
 appointed to be held twice-a year ; but in the cities of Durham and Car- 
 lisle, the towns of Newcastle and Appleby, which are in the Northern and 
 long circuits, the assizes are held only once a-year in autumn. Middlesex 
 being the supreme court of justice, and Cheshire being a county palatine, 
 have peculiar privileges, and therefore excluded from the circuits. 
 
 There are three counties which are pre-eminently called counties pala- 
 tine, viz. Lancaster, Chester, and Durham, the two latter have been so 
 
THE FEUDAL SYSTEM. 19 
 
 termed ever since the conquest j and Lancaster was created a county pala- 
 tine by Henry III., in favour of Edward Plantagenet, first earl and duke 
 of Lancaster. Pembroke and Hexham also, were anciently counties pala- 
 tine ; Hexham belonged to the archbishop of York, but was stripped of 
 its privileges in the fourteenth year of Elizabeth's reign, and reduced to 
 be part of the county of Northumberland. The power of Pembroke as a 
 county palatine was abolished in the twenty-seventh year of Henry VIIL 
 
 Sheriffs. — The Sheriff is an officer of very great antiquity, and per- 
 forms all the king's business in the counties ; and although he be slill 
 called vice-comes, yet he is entirely independent of, and not subject to the 
 earl ; the king, by his letters patent, committing custodiam comilatus to 
 the sheriff, and him alone. 
 
 Sheriffs were formerly chosen by the inhabitants of the several counties. 
 In confirmation of which, it was ordained, by statute 28, Edward I., that 
 the people should elect their sheriffs in every shire, except where the 
 shrievalty was hereditary in any family. In some counties the sheriffs were 
 hereditary, as they still continue to be in the county of Westmoreland. In 
 Scotland the sheriffs were hereditary, till the crown resumed that office 
 after the attempt of prince Charles Edward to win the crown of his ances- 
 tors, and there the crown appoints deputies, who again appoint substitutes 
 to act for them. The city of London has the inheritance of the shrievalty 
 of Middlesex vested in their corporation by charter. But these popular 
 elections growing tumultuous, they were put an end to by the statute 9 Ed- 
 ward II., which enacted that the sheriffs should from thenceforth be cis- 
 signed by the chancellor, treasurer, and the judges, as being persons to whom 
 the same trust might with confidence be reposed. And it is now custom- 
 ary, that all the judges, together with the other great officers and privy 
 councillors, meet in the exchequer on the morrow of St Martin, and then 
 and there the judges propose three persons to be reported to the king, who 
 afterwards appoints one of them to be sheriff. 
 
 Sheriffs, by virtue of several old statutes, are to continue in their office 
 only one year in England, and yet it is said that a sheriff may be appointed 
 during the king's pleasure, and such is the form of the king's writ. No 
 man who has served the office of sheriff for one year, can be compelled to 
 serve the'same again within three years after. 
 
 It is of the utmost importance to have the sheriff appointed according 
 to law, when his power and duty is considered. These are either as a 
 judge, as the keeper of the king's peace, as a ministerial officer of the su- 
 perior courts of justice, or as the king's bailiff. 
 
 In his judicial capacity he is to hear and determine all causes of forty 
 shillings value and under in his county court, and he has also a judicial 
 })ovver in divers other civil cases. He is likewise to decide the elections of 
 knights of the shire, (subject to the control of the house of commons,) of 
 
20 THE FEUDAL SYSTEM. 
 
 coroners, and of verderors ; to judge of the qualification of voters, and re- 
 turn such as he shall determine to be duly elected. 
 
 As the keeper* of the king's peace, both by common law and special com- 
 mission, he is the first man in the county, and superior in rank to any 
 nobleman therein during his office. He may apprehend, and commit to 
 prison, all persons who break or attempt to break the peace ; and may 
 bind any one in recognizance to keep the king's peace. He not only may, 
 but he is bound, ex officio, to pursue and take all traitors, murderers, 
 felons, and other misdoers, and commit them to jail for safe custody. He 
 is also to defend his county against any of the king's enemies when they 
 come into the land ; and for this purpose, as well as for keeping the peace 
 and pursuing felons, he may command all the people of his county to attend 
 him J which is called the posse comitatus, or power of the county : and this 
 summons, every person above fifteen years old, and under the degree of a 
 peer, is bound to attend upon warning, under pain of fine and imprisonment. 
 
 In his ministerial capacity, the sheriff is bound to execute all processes 
 issuing from the king's courts of justice. In the commencement of civil 
 causes, he is to serve the writ, to arrest and to take bail j when the cause 
 comes to trial, he must summon and return the jury ; when it is deter- 
 mined, he must see the judgment of the court carried into execution. In 
 criminal cases, he also arrests and imprisons, he returns the jury, he has 
 the custody of the delinquent, and he executes the sentence of the court, 
 though it extends to deatli itself. 
 
 As the king's bailiff, it is his business to preserve the king's rights within 
 his bailiwick ; for so his county is frequently called in the writs. He must 
 seize to the king's use all lands devolved to the crown by attainder or es- 
 cheat ; must levy all fines and forfeitures ; must seize and keep all waifs, 
 wrecks, estrays, and the like, unless they be granted to some subject ; and 
 must also collect the king's rents within his bailiwick, if commanded by pro- 
 cess from the Exchequer. 
 
 For the execution of these various offices, the sheriff has many inferior 
 officers under him : as under sheriff, bailiff, and jailers : who must neither 
 buy, sell, nor farm their offices, under forfeiture of £500. 
 
 The under sheriff usually performs all the duties of the office, a very 
 few only excepted, where the personal presence of the high sheriff is ne- 
 cessary. But no under sheriff shall continue in his office more than one 
 year, and if he does he forfeits £200. And no under sheriff shall practise 
 as an attorney during the time he holds the office, for this would be a great 
 inlet to partiality and oppression. 
 
 Bailiff's or sheriff's officers, are either bailiffs of hundreds or special 
 bailiffs. Bailiffs of hundreds are officers appointed over those respective 
 districts by the sheriffs, to collect fines therein ; to summon juries, to at- 
 tend the judges and justices of the assizes and quarter sessions, and also to 
 
THE FEUDAL SYSTExM. 21 
 
 execute writs and processes in the several hundreds. But as they are 
 generally plain men, and not thoroughly skilled in this latter part of their 
 office, that of serving vs^rits, and making arrests and executions, it is now 
 usual to join special bailiffs with them. The sheriff being answerable for 
 their misdemeanours, the bailiffs are usually bound in an obligation with 
 sureties for the due execution of their office, and thence are called bound 
 bailiffs, which has been corrupted to the more homely appellation of hum- 
 bailiffs. 
 
 Jailers are also the sheriff's servants, and he is responsible for their 
 conduct. Their business is to keep all such persons in safety as are com- 
 mitted to them by lawful warrant ; and if they suffer any such to escape, 
 the sheriff shall answer to the king, if it be a criminal matter, or in a civil 
 case, to the party injured. And to this end the sheriff must have lands 
 sufficient within the county to answer to the king and his people. The 
 abuses of jailers and sheriff's officers, towards ihQ unfortunate persons in 
 their custody, are well regulated and guarded against by various statutes. 
 Jailers are not to suffer tippling or gaming, or the sale of any liquors in 
 a prison under the penalty of f^\0. 
 
 Justices op the Peace. — The next species of subordinate magistrates, 
 are justices of the peace, the principal of whom is the custos rotulorum^ or 
 keeper of the records of the county. 
 
 The king's majesty is by his office and dignity royal, the principal con- 
 servator of the peace within all his dominions, and may give authority to 
 others to see the peace kept, and to punish such as break it : hence it is 
 usually called the king's peace. The lord chancellor or keeper, the lord 
 treasurer, the lord high steward of England, the lord mareschal, and lord 
 high constable of England, (when any such officers are in being,) and all 
 the justices of the king's bench, (by virtue of their offices,) and the master 
 of the rolls, (by prescription,) are general conservators of the peace 
 throughout the whole kingdom, and may commit all who break it, or bind 
 them in recognizances to keep it ; the other judges are only so in their own 
 courts. The coroner is also a conservator of the peace within his own 
 county, as is also the sheriff, and both of them may take a recognizance. 
 Constables, tithing-men, and the like, are also conservators of the peace 
 within their own jurisdictions, and may apprehend all breakers of the peace, 
 and commit them till they find sureties for their keeping it. 
 
 These justices are appointed by the king's special commission under the 
 great seal, the form of which was settled by all the judges A. d. 1590. 
 This appoints them all, jointly and severally, to keep the peace, and any 
 two or more of them to inquire of and determine felonies and other misde- 
 meanours ; in which number some particular justices, or one of them, are 
 directed to be always included, and no business to be done without their 
 presence. When any justice intends to act under this commission, he sues 
 
S8 * THE FEUDAL SYSTEM. 
 
 out a writ of dedimus potestatem, from the clerk of the crown in chancery, 
 empowering certain persons therein named to administer the usual oaths 
 to him, which done, he is at liberty to act. 
 
 It is now enacted that every justice, with some exceptions, shall have 
 £100 per an?ium, clear of all deductions, and if he act without such quali- 
 fication, he shall forfeit £100. And it is also provided, that no practis- 
 ing attorney, solicitor, or proctor, shall be capable of acting as a justice of 
 the peace. 
 
 The office of these justices subsists only during the king's pleasure, and 
 is determinable, 1. By the demise of the crown, that is, in six months after ; 
 but if the same justice is put in commission by the successor, he is not 
 obliged to sue out a new dedimus, or to swear again to his qualification ; 
 nor by reason of any new commission, to take the oaths more than once 
 during the same reign. 2. By express writ under the great seal, discharg- 
 ing any particular person from being any longer a justice. 3. By super- 
 seding the commission by writ of supersedeas, which suspends the power of 
 all the justices, but does not totally destroy it ; in as much as it may be re- 
 vived again by another writ, called dk procedendo. 4. By a new commis- 
 sion, which virtually, though silently, discharges all the former justices, 
 that are not included therein ; for two commissions cannot subsist at once. 
 5. By accession to the office of sheriff or coroner. 
 
 The power, office, and duty of a justice of the peace depends on his 
 commission, and on the several statutes which have created objects of his 
 jurisdiction. His commission first empowers him singly to conserve the 
 peace, and thereby gives him all the power of the ancient conservators at 
 the common law, in suppressing riots and affrays, in taking securities for 
 the peace, and in apprehending and committing felons and other inferior 
 criminals. It also empowers any two or more to hear and determine all 
 felonies and other offences, which is the ground of their jurisdiction at 
 sessions. 
 
 Surveyors of Highways. — Every parish is bound of common right 
 to keep the high roads that go through it in good and sufficient repair, 
 unless by reason of the tenure of lands, or otherwise, this care is consigned 
 to some particular private person. 
 
 Their office and duty consists in putting in execution a variety of laws 
 for the repairs of the public highways ; that is, of ways leading from one 
 town to another, all which are now reduced into one act, 13 Geo. III., 
 which enacts, 1. That they may remove all annoyances in the highways, 
 or give notice to the owner to remove them, who is liable to penalties for 
 non-compliance. 2. Tliey are to call together all the inhabitants and oc- 
 cupiers of lands, tenements, and hereditaments within the parish, six days 
 in every year, to labour in fetching materials, or repairing the highways : 
 all persons keeping draughts, (of three horses, &c.) or occupying lands, 
 
THE FEUDAL SYSTEM. 23 
 
 being obliged to send a teem for every draught, and for every £50 a-year, 
 which they keep or occupy ; persons keeping less than a draught, or oc- 
 cupying less than £50 a-year, to contribute in a less proportion : and all 
 other persons chargeable, between the ages of eigliteen and sixty-five, to 
 work or find a labourer, but they may compound with the surveyors, at 
 certain easy rates established by the act. And every cartway leading to 
 any market town, must be made twenty feet wide at the least, if the fences 
 will permit, and may be increased by the authority of two justices, at the 
 expense of the parish, to the breadth of thirty feet. 3. The surveyors may 
 lay out their own money in purchasing materials for repairs, in erecting 
 guide posts, and making drains, and shall be reimbursed by a rate, to be 
 allowed at a special sessions. 4. In case the personal labour of the parish 
 be not sufficient, the surveyors, with the consent of thp quarter sessions, 
 may levy a rate on the parish in aid of the personal duty, not exceeding 
 in any one year, together with the other highway rates, the sum of 9d. in 
 the pound ; for the due application of which, they are accountable on oath. 
 Turnpikes are now pretty generally introduced in aid of such rates, and 
 the laws relating to them, depend principally on the particular powers 
 granted in the several road acts, and upon some general provisions, which 
 are extended to all turnpike roads in the kingdom by 13 Geo. III. 
 
 Coroners. — Coroners were originally the principal conservators of the 
 king's peace, and the name is derived from Corona^ a crown, because by 
 the common law they attended principally to the pleas of the crown. In 
 virtue of his office, the lord chief justice of the king's bench is the chief 
 coroner of England. Anciently the office of Coroner was held in such 
 high estimation, that none under the degree of a knight could hold it. By 
 the 14 Edward III., no coroner could be chosen unless he had in the same 
 county sufficient land in fee to answer all manner of people. 
 
 The coroner is elected by the freeholders of the county in the county 
 court, in pursuance of the king's writ issued from, and returnable to, the 
 court of chancery. The demise of the king does not affect this officer ; he still 
 continues ad viiam aut culpam^ without any new election. After his election 
 and return, he is sworn by the sheriff to the due execution of his office. 
 
 When any person comes by a violent or unnatural death, or if there be 
 suspicion of such, the township is to give notice to the coroner ; and if this 
 is neglected, and tiie body interred without due notification, or before the 
 coroner's arrival, then the township is liable to be amerced. To bury any 
 body which has met with a violent death before a coroner's inquest has sat 
 upon it, is, according to chief justice Holt, indictable ; and also if the town- 
 ship shall suffer the body to lie unburied till it putrifies, without sending 
 notice to the coroner, it is liable to be amerced. 
 
 On receiving notice, the former issues a precept to the constables of the 
 next four, five, or six townships, to return twelve good and lawful men to 
 
24 THE FEUDAL SYSTEM. 
 
 appear before him at such a place, to make inquisition into tlie cause of 
 death ; and every one above the age of twelve years, is liable to serve on 
 the jury, unless they have a reasonable excuse to the contrary. The jury 
 'when assembled are sworn, and charged by the coroner to inquire, on view 
 of the body, how the party came by his death. If tlie body, either from 
 carelessness or ignorance, should have been interred before his arrival, he 
 must dig it up, because the body must be seen by himself and jury, and 
 which may be done within fourteen days. 
 
 The jury being sworn, must hear evidence on oath, whether for defence 
 or inculpation, whether the person was slain, either in any house, field, bed, 
 tavern, or company, as also who were present ) and if any one or more 
 are found culpable, the coroner issues his writ committing the parties to 
 jail, or into the custody of the sheriff. The coroner is also to inquire 
 into the cause of death, when any one is found dead or drowned. Imme- 
 diately after due inquisition by the coroner and his jury, the bodies whether 
 they died a natural or a violent death, are to be buried. 
 
 By act of parliament, every coroner is obliged to certify all cases of mur- 
 der to the assizes, and put the evidence into writing, and to bind over the 
 witnesses to give evidence at the ensuing jail delivery, otherwise, on neg- 
 lect, the coroner is liable to a fine at the discretion of the court. The 
 coroner can inquire of accessories before the fact, but he is debarred from 
 any inquiry after the fact ; that belongs to the court. 
 
 It is the duty of the coroner to inquire into the death of every one who 
 dies in prison, which shows the humanity and attention to justice of the 
 laws of England, to act as a check on the brutality or inhumanity of jail- 
 ers ; for, if a prisoner comes to an untimely death through violence or un- 
 reasonable hardship of his keepers, it is counted murder in tlie jailer, and 
 in consequence of the cruelty, the law implies malice. In the inquest held 
 on prisoners dying under these circumstances, the jury is composed of six 
 prisoners, (if there are as many in the jail at the time,) and six freehold- 
 ers of the parish in which the prison is situate. 
 
 If it is ascertained that a coroner has been corrupt in taking an inquest, 
 the law determines that a 7nelius inquirendum shall go to special commis- 
 sioners, who shall proceed on testimony and not on view, to the entire ex- 
 clusion of the coroner ; who, in this particular case has nothing to do with 
 the inquest ; but where the inquest has been quashed for informality only, 
 he takes a new inquest, as if none had been taken before. 
 
 The power and duties of the coroner seem to have been considerable, for 
 it was his duty to inquire after treasure found, both the finders and the 
 parties suspected, also after all who lived riotously, or that haunted taverns. 
 Besides his judicial place, he had also a ministerial authority as a sheriflT, 
 that is, where there is a just exception taken at tlie sheriff, judicial pro- 
 cess is awarded to the coroner, for the due execution of the king's writs, 
 
THE FEUDAL SYSTEM. 25 
 
 and in some special cases, the king's original writ is immediately directed 
 to him. It is his duty to be present in the county court, to pronounce 
 judgment of outlawry upon the exigent after quinto exactus, at the fifth 
 court, if the defendant does not appear. 
 
 Formerly he had a power in certain appeals, which are now disused, as of 
 rape and maiming, and also in cases of abjuration for felony or other offences. 
 
 By the statute of 3 Henry VII., the coroner is entitled to a fee on every 
 inquisition, on the view of a body slain, 13*. 4c?. to be levied on the goods 
 and chattels of the murderer, if he have any, and if not, his fee is taken 
 from the amercement of the township which suffers the murderer to escape. 
 By the 25 Geo. II., for every inquisition (not taken upon view of a body 
 dying in jail,) he is entitled to 20*. and besides 9rf. per mile for every mile 
 he shall be compelled to travel from his usual place of abode, to be paid by 
 order of the justices in sessions, out of the county rates, for which order no 
 fee can be exacted. 
 
 But no coroner of the king's household, or of the verge of the king's 
 palaces, nor any coroner of the admiralty, or of the county palatine of Dur- 
 ham, nor of the city of London j and borough of Southwark, nor any fran- 
 cliise belonging to the said city ; nor of any city, town, or franchise, not 
 contributing to the county rates, or within which such rates have not been 
 usually assessed, shall be entitled to any benefit by this act ; but they shall 
 have such fees and salaries as they were allowed before this act, or shall be 
 allowed by the persons by whom they have been appointed. 
 
 A coroner neglecting his duty, is liable to severe punishment. For 
 concealing a felony, or showing partiality to criminals, he shall be im- 
 prisoned one year and fined at the king's pleasure, (3 Edward I.) If he 
 is remiss, and neglect to make inquisition on view of the dead body, and 
 to certify the same to the jail delivery, he shall forfeit to the king one 
 hundred shillings. If any coroner, not appointed by an annual election 
 or nomination, or whose office is not annexed to any other office, shall be 
 convicted of extortion in taking more than his lawful fees, or of wilful 
 neglect of his duty, or of any misdemeanor in his office ; the court before 
 whom he shall be convicted, may remove him from his office, and if he 
 has been elected by the freeholders, the court shall issue a writ for remov- 
 ing him and electing another in his place. If he has been appointed by 
 the lord of any liberty and franchise, or in any other manner than by the 
 freeholders, the person entitled to the nomination shall, after notice, nomi- 
 nate another person in his place. 
 
 The coroner is a judicial officer, and must execute his office in person 
 and not by deputy, and if he acts by deputy, he is liable to the penalties 
 just mentioned.* 
 
 * Blackstone, Burn's Justice, Lyttleton's Hist. Henry II., Douglas' Peerage, Henry's 
 Hisl. of Great Britain. 
 
MAGNA CHARTA. 
 
 The reign of King John will be for ever memorable in the annals of 
 English history for the melioration of the Constitution, by his concession, 
 however reluctantly granted, of the great charter of British liberties. And 
 as it is tlie foundation, not only of English freedom, but of the liberties of 
 the whole British dominions, we begin the history of our Constitution 
 with some account of it, and a copy of its translation. In such a miscel- 
 lany as this, it would be impossible to give a complete commentary on this 
 famous charter, the palladium of British freedom — we shall therefore con- 
 fine our observations to a brief analysis, pointing out, in as few words as 
 possible, the grievances and hardships that were intended to be removed, 
 with the liberties and privileges that were designed to be granted, by tlie 
 great charter of King John. 
 
 Those privileges and liberties may be divided into four classes : — 1. Those 
 granted to the church and clergy ; 2. To the earls, barons, knights, and 
 others who held of the king in capUe, that is, in chief; 3. To cities, towns, 
 and merchants, for the encouragement of trade ; 4. To the whole body 
 of freemen. None of the parties concerned in this important charter ever 
 entertained a thought of emancipating slaves or villeins, wlio composed in 
 fact the great mass of the people j and tlierefore they are only once men- 
 tioned, and (hat, not for any advantage for themselves, but entirely for 
 their master's benefit. 
 
 The power and wealth of the clergy were then so great, and their griev- 
 ances so few, that they had scarcely any thing to complain of or to ask ; 
 and this probably is the reason why there are so few articles in the charter 
 respecting the church. The famous Constitutions of Clarendon (here- 
 after related) had been an object of execration and horror to the popes, 
 and the clergy of their party, for more than half a century before the 
 concession of the great charter. After a long and violent struggle, in which 
 Thomas-a-Becket lost his life, Henry II. had been compelled to give up 
 the greater part of these Constitutions j and it is evident, that the articles 
 in the charter respecting the church, were intended to guard against the 
 restoration of these detested laws, and to eradicate their remains, one of 
 which subjected the clergy to the jurisdiction of the civil courts. It is 
 declared in the first article, " that the English church shall be free, and 
 have her rights entire, and her liberties unhurt." By the freedom here 
 stipulated for the church of England, the exemption of the clergy from 
 the jurisdiction of the civil courts, to which they had been subjected by 
 the third Constitution of Clarendon, is most probably here to be under- 
 stood. Archbishop Becket and the clergy contended as pertinaciously for 
 
MAGNA CHARTA. 27 
 
 this pernicious exemption, as if it had constituted tl^e very essence of 
 Christianity, and the very existence of the Church itself : and after they 
 did obtain it, they defended it with equal obstinacy. One of the rights of 
 the church, which is particularly mentioned in the first article, is in direct 
 contradiction to the twelfth Constitution of Clarendon. It is the right, 
 which King John had granted by a particular charter about a year be- 
 fore, to monks of cathedral churches and abbeys, freely to choose their own 
 bishops and abbots. 
 
 The twenty-second article of the charter seems very plainly to indicate, 
 that the freedom granted to the clergy implied an exemption of their per- 
 sons as clergymen, and of their benefices belonging to the church, from 
 civil jurisdiction. For by that article it is declared, that no clergyman 
 shall be amerced according to the value of his ecclesiastical benefice, but 
 according to his secular estate. A clergyman, therefore, who had no 
 secular estate, was not liable to be amerced. One reason for inserting 
 that article seems to have been, that some clergymen, who had secular 
 estates, had been so unreasonable as to plead, that these estates should be 
 exempted from jurisdiction, as well as their ecclesiastical benefices. 
 
 None of the Constitutions of Clarendon were more disagreeable to tlie 
 Pope and clergy than the fourth, which prohibited all bishops and clerks, 
 that is clergymen, from going out of the kingdom without the king's leave. 
 For, by this law, the clergy were prevented from prosecuting their ap- 
 peals, and other affairs, at the court of Rome, which deprived tliat court 
 of much solid power and riches. The forty-second article of the charter 
 removed this restraint, and the clergy, as well as others, were permitted 
 to leave the kingdom at their own pleasure. 
 
 As the earls and barons were the chief instruments in procuring this 
 charter, there is little doubt but they would be very careful of the interests 
 of their own order. They had suflfered considerable hardships under the 
 feudal system of tenures, and to mitigate these some of the articles were 
 framed. The wardship of the heirs of the nobility and chief vassals was 
 a source of great profit to the crown, which exercised great tyranny, in 
 exacting large fines when these came of age, on their taking possession of 
 their estates. The third article corrects this oppressive custom. Some- 
 times a king of England, at this period, appointed the sheriflf of the county, 
 or some other person, to manage the estate of an earl or baron, who was 
 his ward, and to pay the profits arising from it into the Exchequer. At 
 other times he sold or granted the wardship, with all its profits, to some 
 particular person. In both cases, the tenants on the estates of the royal 
 wards were often most grievously oppressed, and tlieir estates wasted, the 
 castles, houses, mills, parks, &c. suiTered to go to ruin, because the man- 
 agers would not be at the expense of repairs. The fourth and fifth arti- 
 cles provided some partial remedies ; but the unb.appy people wIjo were 
 
28 MAGNA CHARTA. 
 
 annexed to their estates were viewed by tliese mighty champions of liberty 
 as their cattle or horses, and were sold and transferred in the same way. 
 
 But in addition to these grievances, to which the nobility and other 
 military vassals of the crown were subject, they were liable to the exercise 
 of a most intolerable tyranny, from the right which the sovereign possessed 
 of disposing of them in marriage at his own pleasure or caprice. In con- 
 sequence of tliis unnatural right, the heirs and heiresses of the greatest 
 families and fortunes were frequently sold or granted in marriage to per- 
 sons disagreeable to them, or unworthy of them ; or, to preserve them- 
 selves from such a disagreeable calamity, they were obliged to pay exor- 
 bitant fines. The sixth article sets some bounds to this tyrannical privi- 
 lege of the crown. 
 
 But this article was too general and indefinite to be an efifectual remedy 
 against so great an evil. Not only heirs and heiresses, but also widows, 
 were subjected to great oppressions by the feudal system, and subjected to 
 the payment of heavy fines to obtain possession of theu- dower, and for 
 liberty to remain unmarried, or to marry whom they chose. In the tliirty- 
 first year of Henry II., Maud, Countess of Warwick, paid tlie king seven 
 hundred merks, equal in value to seven thousand pounds of our present 
 money, that she miglit receive her dower, and be at liberty to marry whom 
 she pleased. Lucia, Countess of Chester, paid five hundred merks to 
 King Stephen, that she might not be compelled to marry within five 
 years. King John had carried this part of feudal oppression, as well as 
 all other points of royal prerogative, to a greater extent than any of his 
 royal predecessors ; for Alicia, Countess of Warwick, paid him no less a 
 sum than one thousand pounds, that she might not be forced to marry till 
 she pleased. 
 
 While the kings of England acted as if they had been the sole judges 
 both of the quantity of the feudal prestations, aids, scutages, and tallages, 
 and of the frequency of exacting them, the property of their vassals was 
 insecure. For when the king could take any proportion of their goods 
 at any time he pleased, they had, in fact, nothing that they could call 
 their own. To prevent this most dangerous abuse in the sovereign, and 
 his granting permission to inferior feudal lords to be guilty of a like 
 abuse over their vassals, is the intention of the twelfth and thirteenth 
 articles of the Great Charter. But because it would be impossible to 
 enumerate all the various tyrannical vexations to which the military vas- 
 sals of the crown were subject, and to provide particular remedies for 
 each of them, the sixteenth article provides generally, but so vaguely as 
 to have been of very little use, " that no man shall be constrained to do 
 more service for a knight's fee than what is due." 
 
 Such were the mitigations of some of the greatest rigours of the feu- 
 dal system obtained from king John by the barons j but neither party 
 
I 
 
 MAGNA CHARTA. 29 
 
 were capable of forming an idea of the perfect freedom from all the ser- 
 vility of that system which we now enjoy. The act of 12th Charles II. 
 completely revolutionized this system, and secured to us that proud 
 maxim, that " an Englishman's house is his castle." 
 
 One thing, which seemed to render these limitations of the sovereign's 
 power as a feudal lord of greater importance and more universal value, 
 was, that by the sixtieth article of this famous charter, the same limitations 
 are imposed on all inferior feudal lords towards their vassals. This rea- 
 sonable article was probably inserted at the king's desire, which contri- 
 buted not a little to render the benefit ineffectual. For although the ba- 
 rons were very anxious to prevent any tyrannical exercise of the feudal 
 power of the crown over themselves, they had not the slightest intention to 
 relieve the bulk of the people from any oppression, whether exercised by 
 themselves or by the crown : the people, therefore, are indebted to the king 
 for this attention to their interests. The nobility continued to oppress llie 
 people notwithstanding, which encouraged subsequent kings to violate i(s 
 limitations, and also furnished them with an ever-ready argument in answer 
 to the complaints of the barons. 
 
 Trade and commerce, at the period when the great charter was granted, 
 were very little known, and held in the utmost contempt by the proud ba- 
 rons, and the bold yeomanry, of England. For almost half a century 
 after the Conquest, there were no towns of any importance except London 
 and some others, and their inhabitants were little better than slaves to the 
 king or the barons on whose domains they were situated. But about the 
 middle of the twelfth century, they began to emerge from this obscurity, 
 and to obtain some degree of importance. By the royal charters of Henry 
 II., Richard I., and king John, many small towns were made free burghs, 
 with establishments of merchants, guilds, and other fraternities, endowed 
 with various privileges, which quickly filled them with free and independ- 
 ent inhabitants. Many of these free burglis favoured the cause of the ba- 
 rons, particularly the citizens of London, who joined them with so much 
 zeal, that they gave the barons possession of their city. This is perhaps 
 the reason why the privileges of cities and towns, and the interests of com- 
 merce, were not entirely overlooked. 
 
 Accordingly the thirteenth article grants, that the city of London, and 
 all the other cities, burghs, towns, and ports of the kingdom, should en- 
 joy all tlieir liberties and free customs both by land and water. In the pre- 
 sent times, when law and justice have their regular course, such a stipula- 
 tion would be unnecessary. But at that period this was far from being tJie 
 case, when fines from cities, towns, and corporations, for license to use 
 their legal rights and liberties, constituted a considerable branch of the royal 
 revenue. It is probable that the citizens of London procured the inser- 
 tion of the thirty-fifth article, which commanded the London measures of 
 
30 MAGNA CHARTA. 
 
 wine, ale, and corn, with a uniformity of weights, to be observed all over 
 the kingdom. Lending money on interest was then called usury, and pro- 
 hibited to Christians by the canons of the church, and even by the laws of 
 the land. This branch of business v^-as therefore entirely engrossed by the 
 cliildren of Israel, who were the only money-lenders in the kingdom, and 
 very often great extortioners. The citizens of London had borrowed large 
 sums from the Jews ; and it is likely that the tenth article was inserted on 
 their suggestion, but which was equally advantageous to feudal superiors 
 who had tlie wardship of minors. 
 
 One of the greatest obstructions to commerce was the irrational jealousy 
 of foreign merchants. In consequence, these merchants were subjected to 
 many restraints and hardships. They were not suffered to enter the king- 
 dom but at certain times, nor to stay above forty days at one time, nor to 
 expose their goods for sale, except at certain fairs. They were frequently 
 obliged to pay large fines to the king for license to trade, and much higher 
 customs and tolls of all kinds than the native merchants. Both their per- 
 sons and goods were exposed to great violence when a war happened to 
 break out between England and the country to which they belonged. But 
 juster notions began gradually to gain ground, and the forty-first article 
 gives protection to the persons and goods of foreign merchants, both dur- 
 ing peace and war. 
 
 The great barons who procured this inestimable charter may be viewed 
 as acting in a double capacity : 1. as military vassals of the crown ; 2. as 
 subjects generally. They consulted their own interests in the first capa- 
 city, by the limitations of the rigours of their feudal tenures, wliich they 
 procured for themselves, but wliich was shared also by all who held lands 
 by military services. They consulted their interests in the second capaci- 
 ty, by the amendments they procured in the general police of the kingdom, 
 in which all of their fellow subjects who were freemen were equally par- 
 takers. These amendments were both numerous and important, tending to 
 remove or alleviate the several grievances of which the people complained. 
 
 The greatest of all the grievances of which the people of England com- 
 plained at the period of granting the great charter, was — that the mere will 
 and arbitrary commands of the sovereign were substituted in the place of 
 law, and men were seized, imprisoned, stripped of their estates, outlawed, 
 banished, and even executed, without any trial or course of law. Out of 
 many instances that might be adduced of all these tyrannical acts, the case 
 of Thomas-d-Becket, archbishop of Canterbury, may suflUce, when Henry 
 II., the greatest and best prince of the age, apprehended all his relations, 
 friends, and dependents, to the number of four hundred persons, men, 
 women, and children — confiscated all their estates and goods, and banished 
 them out of the kingdom, in the middle of winter, anno 1165— and this on 
 account of the archbishop's opposition to the Constitutions of Clarendon, and 
 
MAGNA CHARTA. 31 
 
 his flight out of the kingdom. Henry committed this act of injustice, not 
 only without any trial, but even without any suspicion or possibility of 
 guilt. To put a stop to such outrageous exertions of arbitrary power, the 
 thirty-ninth article was conceded by king John ; which is the most valu- 
 able stipulation in the whole charter, and the grand security of the liber- 
 ties, persons, and properties of the people of England, and of the whole 
 British dominions, which, unless this law is violated, cannot be unjustly 
 invaded. The expressions, " We will not go upon him — we will not 
 send upon him," signify that the king would not sit in judgment, or pro- 
 nounce sentence, on any freeman, either in person or by his judges, ex- 
 cept by the verdict of a jury, or by a process conducted according to the 
 established laws of the land. By the laws of the land, may probably be 
 intended trials by ordeals, by judicial combats, and by compurgators, as 
 they were all then in use, and agreeable to laAv. 
 
 Next to the substitution of arbitrary will in the place of law, tlie king's 
 personal interfering in lawsuits depending before his courts, in order to 
 interrupt or pervert the regular course of justice, was one of the great- 
 est grievances of that period. This was done in so open and shameless 
 a manner, that the bribes received by the kings for these iniquitous prac- 
 tices were regularly entered in the revenue accounts of every year, and 
 amounted to large sums. To put a stop to this grievous and unjust 
 abuse, king John promises, " To no man will we sell, to no man will we 
 deny or delay right and justice." 
 
 In the forty-fifth article, king John promised to appoint none to be 
 judges but who had a competent knowledge of law. To remove the in- 
 convenience attending the courts of law being obliged to follow the king's 
 court from place to place, the seventeenth article was framed. Amerce- 
 ments for trivial offences, or exorbitant and ruinous ones for real delin - 
 quencies, were among the greatest grievances of that period. The 
 causes for which amercements were imposed were innumerable ; and their 
 rates were unsettled, and they brought much money into the royal cof- 
 fers. They were frequently excessive ; so much so, that those who were 
 amerced were said to be i?i misericordia regis, or at the king's mercy. 
 To set some bounds to these oppressions was the intention of the twenti- 
 eth, twenty-first, and twenty-second articles, by which it is declared, that 
 earls and barons shall not be amerced except by their peers, and that ac- 
 cording to the degree of their delinquency ; and no freeholder or free- 
 man shall be heavily amerced for a slight fault, nor above measure even 
 for a great misdemeanour ; still saving to a freeholder his freehold, to a 
 merchant his merchandise, and to a rustic his implements of husbandry. 
 The savings to these different parties are called their coutenement ; which 
 signifies such a reservation of their estate and goods, as enabled them to 
 maintain their former rank and consequence, and pursue their ordinary 
 
39 
 
 MAGNA CHARTA. 
 
 business. The contenement of a soldier was his arms, of a scholar his 
 books ; and by the law of Wales, his harp made a part of the contene- 
 ment of a Welsh gentleman. 
 
 The prerogative of pre-emption of all things necessary for their court 
 and castles, commonly called purveyance, which belonged to the kings 
 of England at that period, was a source of infinite vexations and injuries 
 to their people. This was sometimes OAving to the avarice, and some- 
 times to the official insolence and cruelty of the purveyors, who attend- 
 ed the court in all its motions. The miseries inflicted on the country 
 by these tyrannical purveyors in the reign of William Rufus are thus pa- 
 thetically described by Eadmer, who flourished in those times, and beheld 
 the scenes he describes : — " Those who attended the court, plundered and 
 destroyed the whole country through which the king passed, without 
 any control. Some of them were so intoxicated with malice, that when 
 they could not consume all the provisions in the houses which they in- 
 vaded, they either sold or burnt them. After having washed their hors- 
 es' feet with the liquors they could not drink, they let them run on the 
 ground, or destroyed them in some other way. But the cruelties they 
 committed on the masters of families, and the indecencies they oflfered to 
 their wives and daughters, were too shocking to be described." Under 
 better princes, these enormities were no doubt in some degree restrained j 
 but it is not likely that king John's courtiers and purveyors were more 
 modest than those of William Rufus. To remedy these intolerable hard- 
 ships is the design of the twenty-eighth, thirtieth, and thirty-first articles. 
 
 The excessive attachment to hunting and field-sports, indulged in by 
 the sovereigns of the Norman race, was productive of innumerable mis- 
 chiefs to their subjects. They converted great tracts of country, in al- 
 most every county in England, into forests for their game : and these 
 forests, and tlie game contained in them, were guarded by the most 
 cruel and sanguinary laws. For it was a received doctrine, that the king 
 might make what laws he pleased for the protection of his forests ; and 
 that, in making and executing these laws, he was not under any obliga- 
 tion to observe the ordinary rules of justice. In consequence of this 
 doctrine, the forest laws were dictated with such a spirit of cruelty, and 
 executed with such severity, that they were objects of universal terror, 
 and sources of distress to those who were so unhappy as to live near the 
 precincts of any of the royal forests. To mitigate in some degree the 
 cruelty of these laws, and the severity with which they were executed, was 
 the intention of the forty-fourth, forty-seventh, and forty-eighth articles 
 But these were insufficient to protect the subjects; and therefore, in the 
 ninth year of the following reign, (Henry III.) the barons of England ob- 
 tained a separate charter, called Charta de Foresta, containing more pre- 
 cise and particular regulations. 
 
MAGNA CHARTA. 
 
 33 
 
 The barons who procured these concessions from the crown, were not 
 Ignorant that king John granted them with extreme reluctance, and with 
 the secret intention to resume some of them at a more convenient season ; 
 and therefore they took every precaution to render the cliarter effectual, 
 and to secure the riglits and liberties which they liad obtained. The 
 great seal was not only affixed to it in due form, but both the king and 
 the barons took a solemn oath to observe it in all particulars with good 
 faith, and without dissimulation. To put it out of the king's power to 
 break through his engagements, and to enable the barons effectually to 
 support the charter, all the king's foreign auxiliaries were immediately 
 sent out of the kingdom. 
 
 It was not till after a long and bloody struggle, that the people of 
 England obtained tlie peaceable enjoyment of the rights and liberties con- 
 tained in the great charter of King John, and in the similar char- 
 ters of his successors. With much difficulty, by slow degrees, and at a 
 great expense of blood and treasure, was the venerable fabric of the 
 BRITISH CONSTITUTION erected. May the wisdom of our legislators, 
 under the divine blessing and guidance, make such improvements and re- 
 formation upon it, as will make it remain for ever the pride and happi- 
 ness of those who enjoy its blessings, and the envy and admiration of 
 surrounding nations ! * 
 
 Translation of the Great Charter of King John^ granted June \5th, 
 A. D. 12} 5, ifi the seventeenth year of his reign. 
 
 John, by the grace of God, King of England, Lord of Ireland, Duke 
 of Normandy and Aquitaine, and Earl of Anjou, — To all his arclibishops, 
 bishops, abbots, earls, barons, justiciaries, foresters, sheriffs, commanders, 
 officers, and to all his bailiffs and faithful subjects, wisheth health. Know 
 ye, that We, from our regard to God and for the salvation of our own 
 soul, and of the souls of our ancestors and of our heirs, to the honour of 
 God, and the exaltation of lioly church, and amendment of our kingdom, 
 by the advice of our venerable fathers, Stephen archbishop of Canter- 
 bury, primate of all England, and cardinal of the holy Roman church ; 
 Henry archbishop of Dublin, William of London, Peter of Winchester, 
 Joceline of Bath and Glastonbury, Hugh of Lincoln^ Walter of Worces- 
 ter, William of Coventry, Benedict of Bcchester, bishops ; Master Pan- 
 dulph, the Pope's subdeacon and familiar ; brotlier Emeric, master of the 
 Knights- Templars in England j ar.d of those noble persons, William Mar- 
 
 * Menr)',s History of Grt^at Biitiiii. 
 
34 
 
 MAGNA CHARTA. 
 
 isclial Earl of Pembroke, William Earl of Salisbury, William Earl of War- 
 ren, William Earl of Arundel, Allan of Galloway, Constable of Scotland, 
 Warren Fit2g;erald, Peter Fitzlierbert, Hubert de Burgh, Steward of 
 Poictou, Hugh de Nevil, Matthew Fitzherbert, Thomas Basset, Allan 
 Basset, Philip de Albany, Robert de Roppel, John Marischal, John Fitz- 
 hugh, and of others of our liegemen, have granted to God, and by this 
 our present charter, have confirmed, for us and our heirs for ever : 
 
 1. That the English Church shall be free, and shall have her whole 
 rights and liberties unhurt ; and T will this to be observed in such a man- 
 ner, that it may appear from them that the freedom of elections, which 
 was reputed most necessary to the English church, which we granted, 
 and by our charter confirmed, and obtained the confirmation of it from 
 Pope Innocent III. before the rupture between us and our barons, was 
 of our own free will. Which charter we shall observe, and we will it to 
 be observed with good faith by our heirs for ever. We have also granted 
 to all the freemen of our kingdom, for us and our heirs for ever, all the 
 underwritten liberties, to be enjoyed and held by them and their heirs, of 
 us and our heirs. 
 
 2. If any of our earls or barons, or others who liold of us in chief by 
 military service, shall die, and at his death his heir shall be of full age^ 
 and sliall owe a relief, he shall have his inheritance for the ancient relief, 
 viz. the heir or heirs of an earl, a whole earl's barony, for one hundred 
 pounds J the heir or heirs of a baron, a whole barony, for one hundred 
 marks ; the heir or heirs of a knight, a whole kniglit's-fee, for one hundred 
 shillings at most ; and he who owes less, shall give less, according to the 
 ancient custom of fees. 
 
 3. But if the heir of any such be under age, and in wardship, when he 
 comes to age he shall have his inheritance without relief and without fine. 
 
 4. The warden of an heir, who is under age, shall not take of the 
 lands of the heir, any but reasonable issues and reasonable customs, and 
 reasonable services, and that without destruction, and waste of the men 
 or the goods ; and if we commit the custody of any such lands to a sheriff, 
 or to any other person who is bound to answer to us for the issues of 
 them, and he shall make destruction or waste upon the ward -lands, we 
 will recover damages from him, and the lands shall be submitted to two 
 legal and discreet men of that fee, who shall answer for the issues to us, 
 or to him to whom we have assigned them ; and if we granted or sold to 
 any one, the custody of any such lands, and he shall make destruction or 
 waste, he shall lose the custody ; and it shall be submitted to two legal 
 and discreet men of that fee, who shall answer to us in like manner as 
 was said before. 
 
 5. Besides, the warden, as long as he hath the custody of the lands, shall 
 keep in order the houses, parks, warrens, ponds, mills, and other things 
 
MAGMA CHARTA. 35 
 
 belonging to them, out of their issues ; and shall deliver to the heir -svhen 
 he is at age, his whole estate, provided with ploughs and other instru- 
 ments of husbandry, according to what the season requires, and the 
 profits of the lands can reasonably afford. 
 
 6. Heirs shall be married without disparagement, and so that before 
 the marriage is contracted, it shall be notified to the relations of the heir 
 by consanguinity. 
 
 7. A widow, after the death of her husband, shall immediately, and 
 without difficulty, have her marriage goods and her inheritance; nor 
 shall slie give any thing for her dower, or her marriage goods, or her in- 
 heritance wliich her husband and she held on the day of his death ; and 
 she may remain in her husband's house forty days after his death, within 
 which time her dower shall be assigned. No widow shall be compelled 
 to marry herself while she chooses to live without a husband, but so that 
 she shall give security that she will not marry herself without our consent, 
 if she holds of us, or without the consent of the lord of whom she holds, 
 if she holds of another. 
 
 9. Neither we nor our bailiffs shall seize any lands or rents for any 
 debt, while the chattels of the debtor are sufficient for the payment of 
 the debt ; nor shall the sureties of the debtor be distrained, while the prin- 
 cipal debtor is able to pay the debt ; and if the principal debtor fail in 
 payment of the debt, not having wherewith to pay, the sureties shall an- 
 swer for the debt ; and if tliey please they shall have the lands and rents 
 of the debtor until satisfaction be made to them for the debt which they 
 had before paid for him, unless the principal debtor can show that he is 
 discharged from it by the said sureties. 
 
 10. If any one hath borrowed any tiling from the Jews, more or less, 
 and dies before that debt is paid, the debt shall pay no interest as long as 
 the heir shall be under age, of whomsoever he holds ; and if that debt 
 shall fall into our hands, we will not take any thing, except the chattels 
 contained in the bond. 
 
 11. And if any one dies indebted to the Jews, his wife shall have her 
 dower, and shall pay nothing of that debt ; and if children of the defunct 
 remain who are under age, necessaries shall be provided for them, ac- 
 cording to the tenement which belonged to the defunct ; and out of the 
 surplus the debt shall be paid, saving the rights of the lords of whom the 
 lands are held. The same rules shall be observed with respect to debts 
 owing to others than Jews. 
 
 12. No scutage or aid shall be imposed, except by the common council 
 of our kingdom, but for redeeming our body, for making our eldest son 
 a knight, and for once marrying our eldest daughter ; and for these only 
 a reasonable aid shall be demanded. This extends to the aids of the city 
 
36 
 
 MAGNA CHARTA. 
 
 of London, and the city of London shall have all its ancient liberties and 
 its free customs, as well by land as by water. 
 
 13. Besides, we will grant, that all other cities and boroughs, and towns, 
 and sea-ports, shall have all their liberties and free customs. 
 
 14. And to have a common council of the kingdom to assess and aid, 
 otherwise than in the three foresaid cases, or to assess a scutage, we will 
 cause to be summoned the archbishops, bishops, earls, and greater barons, 
 personally by our letters ; and besides, we will cause to be summoned in 
 general, by our sheriffs and bailiffs, all those who hold of us in chief, to a 
 certain day, ai the distance of forty days at least, and to a certain place ; 
 and in all the letters of summons, we will express the cause of the sum- 
 mons, and the summons being thus made, the business shall go on at the 
 day appointed, according to the advice of those who shall be present, al- 
 though all who had been summoned have not come. 
 
 15. We will not give leave to any one, for the future, to take an aid of 
 his freeman, except for redeeming his own body, making his eldest son a 
 knight, and marrying once his eldest daughter -, and that only a reason- 
 able aid. 
 
 16. Let none be distrained to do more service for a knight's fee, nor 
 for any free tenement, than what is due from them. 
 
 17. Common pleas shall not follow our court, but shall be held in 
 some certain place. ; 
 
 18. Assizes upon the writs of Novel desseisin, Mort d'ancester (death 
 of the ancestor), and Dernier presentment, (last presentation), shall not be 
 taken but in their proper counties, and in this manner : — We, or our chief 
 justiciary when we are out of the kingdom, shall send two justiciaries into 
 each county, four times a-year, who, with four knights of each county, 
 chosen by the county, shall take the foresaid assizes, at a stated time and 
 place within the county. 
 
 19. And if the foresaid assizes cannot be taken on the day of the county 
 court, let as many knights and freeholders, of those who were present at 
 the county court, remain behind, as by them the aforesaid assizes may 
 be taken, according to the greater or less importance of the business. 
 
 20. A freeman shall not be amerced for a small offence, but only ac- 
 cording to the degree of the offence ; for a great delinquency according 
 to the magnitude of the delinquency, saving his contenement ; a merchant 
 shall be amerced in the same manner, saving his merchandise, and a vil- 
 lein saving his implements of husbandry. If they fall into our mercy, 
 none of the aforesaid amercements shall be assessed but by the oath of ho- 
 nest men of the vicinage. 
 
 21. Earls and barons shall not be amerced but by their peers, and that 
 only according to their delinquency. 
 
MAGNA CHART A. 37 
 
 22. No clerk (clergyman) shall be amerced for his lay tenement, but 
 according to the manner of others as aforesaid, and not according to the 
 quantity of his ecclesiastical benefice. 
 
 23. Neither a towii nor a particular person shall be distrained to build 
 bridges or embankments except those vvho anciently and of right are bound 
 to do it. 
 
 24. No sheriff, constable, coroner, or bailiff of ours, shall hold pleas 
 of our crown. 
 
 25. All counties, hundreds, wapentakes, and tithings, shall be at the an* 
 cient rent without any increment, except our demesne-manors. 
 
 26. If any one holding of us a lay fee dies, and the sheriff or our bailiff 
 shall show our letters- patent of our summons for a debt which the defunct 
 owed to us, it shall be lawful for the sheriff or our bailiff to attach and re- 
 gister the chattels of the defunct found on that fee, to the amount of that 
 debt, at the view of lawful men, so that nothing shall be removed from 
 them until our debt is paid to us. The clear overplus shall be left to the 
 executors to fulfil the last will of the defunct • and if nothing is owing to 
 us by him, all the chattels shall fall to the defunct, saving to his wife 
 and children their reasonable shares. 
 
 27. If any freeman shall die intestate, his chattels shall be distributed 
 by his nearest relations and friends at the view of the church, saving to 
 every one his debts which the defunct owed to him. 
 
 28. No conjstable or bailiff of ours shall take the corn or other goods 
 of any one without instantly paying money for them, unless he can obtain 
 respite from the free will of the seller. 
 
 29. No constable (governor of a castle) shiall, distrain any knight to give 
 money for castle-guard, if he is willing to perform it himself, for a reaso- 
 nable cause. Or if he have carried or sent him into the army, he shall be 
 excused from castle-guard, according to the space of time he hath been in 
 the army at our command. 
 
 30. No sheriff or bailiff of ours, or any other person, sliall take the 
 l^orses or carts of any freeman, to perform carriages, without the consent 
 of the said freeman. 
 
 31. Neither we tior our bailifiTs shall take another man's wood, for our 
 castles or other uses, without the consent of him to whom the wood be- 
 longs. 
 
 32. We will not retain the lands of those who have been convicted of 
 felony above one year and one day, and then they shall be given up to the 
 lord of the fee. 
 
 33. All kydells (wears) for the future shall be quite removed out of the 
 Thames, the Medway, and through all England, except on the sea-coast. 
 
 34. The writ, wliich is precipe^ for the future shall not be granted to 
 an'y one concerning any tenement by which a freeman may lose his court. 
 
38 MAGNA CHARTA. 
 
 35. There shall be one measure of wine through all our kingdom, and 
 one measure of ale and one measure of corn, viz. the quarter of London ; 
 and one breadth of dyed cloth and of russets, and of halberjects, viz. two 
 ells witliin the lists. It shall be the same with weights as with mea- 
 sures. 
 
 36. Nothing shall be given or taken for the future for the writ of in- 
 quisition of life or limb, but it shall be given gratis, and not denied. 
 
 37. If any hold of us by fee-farm, or soccage, or burgage, and hold 
 an estate of another by military service, we shall not have the custody of 
 the heir, or of his land, which is of the fee of another, on account of that 
 fee-farm, or soccage, or burgage, unless the fee-farm owes military ser- 
 vice. We shall not have the custody of the heir, or of the land of emy 
 one, which he holds of another by military service, on account of any 
 petty sergeanty which he holds of us by giving us knives, arrows, or the like. 
 
 38. No bailiff for the future shall put any man to his law, upon his own 
 simple affirmation, without credible witnesses produced to that purpose. 
 
 39. No freeman shall be seized, or imprisoned, or disseized, or outlawed, 
 or any way destroyed, nor will we go upon him, nor will we send upon 
 him, except by the legal judgment of his peers, or by the law of the land. 
 
 40. To none will we sell, to none will we deny, to none will we delay, right 
 or justice. 
 
 41. All merchants shall be safe and secure in coming into England, and 
 going out of England, and staying and travelling through England, as well 
 by land as by water, to buy and to sell, without any unjust exactions, 
 according to ancient and right customs, except in time of Avar, and if they 
 be of a country at war against us. And if such are found in our domin- 
 ions at the beginning of a war, they shall be apprehended without injury 
 of their bodies or goods, until it be known unto us, or to our chief justici- 
 ary, hoAv the merchants of our country are treated in the country at war 
 against us ; and if ours are safe there, the others shall be safe in our country. 
 
 42. It shall be lawful for any person for the future to go out of our 
 kingdom, and to return safely and securely, by land and by water, saving 
 his allegiance, except in time of war, for some short space, for the com- 
 mon good of the kingdom, except prisoners, outlaws according to the law 
 of the land, and people of the nation at war against us, and merchants, 
 who shall be treated as is said above. 
 
 43. If any one holdeth of any escheat, as of the honour of Wallingford, 
 Nottingham, Boulogne, Lancaster, or of other escheats which are in our 
 hands, and shall die, his heir shall not give any other relief, or do any 
 other service to us, than he should have done to the baron, if that barony 
 had been in the hands of the baron ; and we will hold it in the same 
 manner that the baron held it. 
 
 44. Men who dwell without the forest shall not come for the future 
 
MAGNA CHARTA. 39 
 
 before our justiciaries of the forest, on a common summons, unless they be 
 parties in a plea, or sureties for some person or persons who are attached 
 for tfie forest. 
 
 45. We will notmake men justiciaries, constables, sheriffs, or bailiffs, un- 
 less they understand the law of the land, and are well disposed to observe it. 
 
 46. All barons who have founded abbeys, of which they have charters 
 of the kings of England, or ancient tenure, shall have the custody of them 
 when they become vacant, as they ought to have. 
 
 47. All forests which have been made in our time shall be immediately 
 disforested ; and it shall be so done with water-banks, which Kave been 
 made in our time in deSance. 
 
 48. All evil customs of forests and warrens, and of foresters and war- 
 reners, sheriffs and their officers, water-banks and their keepers, shall 
 immediately be inquired into by twelve knights of the same county, upon 
 oath, who sliall be chosen by the good men of the same county ; and 
 within forty days after the inquisition is made, they shall be quite de 
 stroyed by them, never to be restored ; provided that this be notified to us 
 before it be done, or to our justiciary if we are not in England. 
 
 49. We will immediately restore all hostages and charters which have 
 been delivered to us by the English, in security of the peace, and of their 
 faithful service. 
 
 50. We will remove from their offices the relations of Gerard de Athyes, 
 that for the future they shall have no office in England ; Englard de Cy- 
 gony, Andrew, Peter, and Gyone de Chaucell, Gyone de Cygony, Geoffrey 
 de Martin and his brothers ,- Philip Mark and his brothers ; and Geoffrey 
 his grandson, and all their followers. 
 
 51. And immediately after the conclusion of the peace, we will remove out 
 of the kingdom all foreign knights, cross-bowmen and stipendiary soldiers, 
 who have come with horses and arms to the molestation of the kingdom. 
 
 52. If any have been disseized or dispossessed by us, without a legal ver- 
 dict of their peers, of their lands, castles, liberties or rights, we will im- 
 mediately restore these things to them ; and if a question shall arise on 
 this head, it shall be determined by the verdict of the twenty-five barons, 
 who shall be mentioned below, for the security of the peace. But as to 
 all those things of which any one hath been disseized or dispossessed with- 
 out a legal verdict of his peers, by King Heniy our father, or King Rich- 
 ard our brother, which we have in our hand, or others hold with our war 
 rants, we shall have respite until the common term of the Croisaders, ex- 
 cept those concerning which a plea had been moved, or an inquisition 
 taken, by our precept, before our taking the cross. But as soon as we 
 shall return from our expedition, or if by chance we shall not go upon 
 our expedition, we shall immediately do complete justice therein. 
 
 53. But we shall have the same respite, and in the same manner, con- 
 
40 MAGNA CHARTA. 
 
 cerning the justice to be done about disforesting or continuing the fores'.* 
 whicli Henry our father or Richard our brother had made ; and about 
 the wardship of lands which are of the fee of some other person, but the 
 wardship of which we have hitherto had, on iiccount of a fee which some 
 one held of us by military service ; and about abbeys which had been 
 founded in the fee of another, and not in ours, in which abbeys the lord of 
 the fee hath claimed a right. And wlien we shall have returned, or if we 
 shall stay from our expedition, we shall immediately do complete justice in 
 all these pleas. 
 
 54. No man shall be apprehended or imprisoned, on the appeal of a 
 woman, for the death of any other man than her husband. 
 ' 55. All fines that have been made by us unjustly, or contrary to the 
 law of the land, and all amercements that have been imposed unjustly or 
 contrary to the law of the land, shall be remitted or disposed of by the 
 verdict, of the twenty-five barons, of whom mention is made below, for the 
 security of the peace, or by the verdict of the major part, of them, together 
 with the aforesaid Stephen Archbishop of Canterbury, if he can be pre- 
 sent, and others whom he may think fit to bring with him ; and if he can- 
 hot be present, the business shall proceed notwithstanding without him ; 
 but so, that if any one more of the aforesaid twenty-five barons have a 
 similar plea, let them be removed from that particular trial, and others 
 elected and sworn by the residue of the same twenty -five, be substituted 
 in their room, only for that trial. 
 
 56. If we have disseized or dispossessed any Welshmen of their lands, 
 liberties, or other things, without a legal verdict of their peers, in Eng- 
 land or Wales, they shall be immediately restored to them; and if any 
 question shall arise about it, then let it be determined in the marclies by 
 the verdict of their peers ; if the tenement be in England, according to 
 the law of England ; if the tenement be in Wales, according to the law 
 of Wales J if the tenement be in tlie marches, according to the law of the 
 marches. The Welsh shall do the same to us and our subjects. 
 
 57. But concerning those things of which any Welshman hath been 
 disseized or dispossessed without a legal verdict of his peers, by king 
 Henry our father or king Richard our brother, which we have in our 
 hand, or others hold with our warranty, we shall have respite until the 
 common term of the Croisaders, except those concerning which a plea 
 had been moved or an inquisition taken, by our precept, before our taking 
 the cross. But as soon as we shall return from our expedition, we shall 
 immediately do complete justice therein, according to the laws of Wales 
 and the parts aforesaid. . 
 
 58. We will immediately deliver up the son of Lewelljn, and all the 
 hostages of Wales, and charters which have been given to us for security 
 of the peace. r ■ 
 
MAGNA CHARTA. 41 
 
 59. We shall do to Alexander king of Scotland, concerning the restora- 
 tion of his sisters and hostages, and his liberties and rights, according to 
 the form in which we act to our other barons of England, unless it ought 
 to be otherwise by charters which we have from his father William, late 
 king of Scotland, and that by the verdict of his peers in our court. 
 
 60. But all these foresaid customs and liberties which we have granted 
 in our kingdom, to be held by our tenants, as far as concerns us, all our 
 clergy and laity shall observe towards their tenants, as far as concerns 
 them, 
 
 61. But since we have granted all these things aforesaid, for God, and 
 for the amendment of our kingdom, and for the better extinguishing the 
 discord arisen between us and our barons, being desirous that these things 
 should possess entire and unshaken stability for ever, we give and grant to 
 them the security underwritten, viz. That the barons may elect twenty- 
 four barons of the kingdom, whom they please, who shall with their whole 
 power observe and keep, and cause to be observed the peace and liberties 
 which we have granted to them, and have confirmed by this our present 
 charter in this manner : That if we, or our justiciary, or our bailiffs, or 
 any of our officers, shall have injured any one in any thing, or shall have 
 violated any article of the peace or security, and the injury shall have 
 been shewn to four of the aforesaid twenty-five barons, these four shall 
 come to us, or to our justiciary, if we are out of the kingdom, and mak- 
 ing known to us the excess committed, require that we cause that excess 
 to be redressed without delay ; and if we shall not have redressed the ex- 
 cess, or, if we have been out of the kingdom, and our justiciary shall not 
 have redesssed it, within the term of forty days, computing from the time 
 in which it shall have been made known to us, or to our justiciary, if we 
 have been out of the kingdom, the aforesaid four barons shall lay that 
 cause before the residue of the twenty-five barons ; and these twenty-five 
 barons, with the community of the whole land, shall distress and harass us 
 by all the ways in which they can, that is to say, by the taking of our 
 castles, lands, and possessions, and by other means in their power, until 
 the excess shall have been redressed, according to their verdict ; saving 
 our person, and the persons of our queen and children ; and when it hath 
 been redressed, tliey shall behave to us as they had done before ; and who- 
 ever of our land pleaseth, may swear that he will obey the commands of 
 the aforesaid twenty-five barons in accomplishing all the things aforesaid, 
 and that with them he will harass us to the utmost of his power ; and we 
 publicly and freely give leave to every one to swear, who is willing to 
 swear, and we will never forbid any one to swear ; but all those of our 
 land, who of themselves and their own accord, are unwilling to swear to 
 the twenty-five barons to distress and harass us together with them, we 
 will compel them by our command to swear as aforesaid : And if any one 
 
42 MAGNA CHART A. 
 
 of the ttrentT-five barons shall die, or remoTe out of the land, or in any 
 other way shall be prevented from execating the things above said, tboae 
 i»ho remain of the twenty-five barons shall elect another in his place, ac- 
 cording to their pleasure, who shall be sworn in the same manner as the 
 rest. But in aU those things which are appointed to be done by the« 
 twenty-five barons, if it happen that all the twenty-five barons have been 
 present, and have differed in their opinions about any thing, or if some of 
 them who had been summoned would not or could not be present, that 
 which the major part of those who were present shall have provided and 
 decreed shall be held as firm and valid as if all the twenty-five had agreed 
 to it. And the aforesaid twenty-fire diall swear that they will faithfully 
 observe, and to the utmost of their power cause to be observed, all the 
 things mentioned above. And we will obtain nothing from any one, by 
 ourselves or by another, by which any of these ctmcessioms and liberties may 
 be revoked or diminished. And if any such ibamg badi been obtained, 
 let it be roid and nuD ; and we will never use it, cither by ours^ves or by 
 another. 
 
 63. And if we have fully remitted and pardoned all men, aD the ifi-wriB, 
 rancour, and rwfwtments which have arisen between us and our subjects, 
 both clergy and laity, from the commencement of the discord. Bfsidw, 
 we have fuOy remitted to aD the clergy and laity, and, as fu- as belongs 
 t» US, we bare fdlhr pardoned all traw^ifiiiicnis conunitted on occasioo of 
 tbe said fiseord, from Easter, in the sizteentb year of our reign, to tbe 
 conclusion of the peace: Aai, ■oicaver, we have caaaed to be made to 
 them testimonial letters-patent of my Lord Stephen, Archbishop of Cant- 
 erbury, my Lord Henry, Archbishop of Dublin, and of the foresaid Bi- 
 dmps, and of Mr Pandulf, concerning this security and the aknaaad cob- 
 ceasions. Wherefore oar will is, and we firmly command, that tbe Cboreb 
 of England be fi-ee, and that the men in our kingdom have and bold aB 
 the aforesaid liberties, rights, and concessions, well and in peace, freelj 
 and quietly, fully and entirely, to them and their heirs, in all tbh^ ami 
 places as aforesaid. An oath hath been taken, as well on our part as om 
 the part of the barons, that all these thii^ Hi^tiosed above shafl be 
 observed in good faith, and without any eril iBte«tin«j before the above^ 
 named witnesses, and many other*. 
 
 Given by our hand, in the memiem whath is cided RmHBipMiie, be- 
 tween Windsor and Staines, this fifteenth day of June, in tbe 
 year of our reign.* 
 
BILL OF RIGHTS. 
 
 Before noticing the absolute rights of individuals, or giving any ac- 
 count of the two Houses of Parliament, we lay before our readers the 
 Bill of Rights, granted by William and Mary at the Revolution in 1688. 
 Magna Charta was forceably obtained from King John, a weak and pus- 
 illanimous prince, by the barons of England ; but that which consolidated 
 the freedom which we now enjoy, was the voluntary concession of Charles 
 II. in the twelfth year of bis reign, but only the first of his actual posses- 
 sion of the crown. By this famous act, (12 Car. II.) he removed for ever 
 the grievous and ignoble yoke of the Norman Conqueror, by enacting 
 that all tenures by homage, escuage, &c. " shall for ever hereafter stand 
 and be discharged," whereby he restored to Englishmen those rights and 
 liberties of which their Saxon ancestors had been deprived by the Norman 
 dynasty, but which they had never ceased to demand as their undoubted 
 birthright. 
 
 At the Revolution, the Convention Parliament drew up the Bill of 
 Rights, in which they protest against the prerogative assumed by the 
 late King James, of dispensing with the laws themselves, and also with 
 their execution, as dangerous and unconstitutional ; and assert that the 
 things therein demanded " are the true, ancient, and indubitable rights and 
 liberties of the people of this kingdom." 
 
 Act declaring the Rights and Liberties of the Subject, and settling ike 
 
 Succession to the Crown. 
 
 Whereas the Lords Spiritual and Temporal, and Commons, assembled 
 at Westminster, lawfully, fully, and freely representing all the Estates of 
 the people of this realm, did, upon the l3th day of February 1688, pre- 
 sent unto their Majesties, then called and known by the names and style 
 of William and Mary, Prince and Princess of Orange, being present in 
 their proper persons, a certain declaration in writing, made by the said 
 Lords and Commons, &c. 
 
 Whereas the late King James II., by the assistance of divers evil coun- 
 sellors, judges, and ministers, employed by him, did endeavour to subvert 
 and extirpate the Protestant religion, and laws and hberties of this realm, — 
 
 1. By assuming and exercising a power of dispensing with and suspend- 
 ing of laws, and the execution of laws without consent of parliament. 
 
44 BILL OF RIGHTS. 
 
 2. By committing and prosecuting divers worthy prelates, for humbly 
 petitioning to be excused from concurring to the said assumed power. 
 
 3. By issuing and causing to be executed a commission under the great 
 seal for erecting a court called The Court of Commissioners for Ecclesi- 
 astical Causes. 
 
 4. By levying money for the use of the crown by pretence of preroga- 
 tive for other time and in other manner than the same was granted by 
 parliament. 
 
 5. By raising and keeping a standing army within the kingdom in time 
 of peace, without consent of parliament, and quartering soldiers contrary 
 
 \ to law. 
 ,^. / 6. By causing several good subjects, being j)rotestants, to be disarmed, 
 at the same time when papists were both armed and employed, contrary 
 to law. 
 
 7. By violating the freedom of election of members to serve in parlia^ 
 ment. 
 
 8. By prosecutions in the court of king's bench, for matters and causes 
 cognizable only in parliament ; and by divers other arbitrary and illegal 
 courses. 
 
 9. And whereas, of late years, partial, corrupt, and unqualified persons 
 ;, have been returned and served on juries and trials, and particularly divers 
 
 jurors in trials for high treason which were not freeliolders. 
 
 10. And excessive bail hath been required of persons committed in 
 ' criminal cases, to elude the benefit of the laws made for the liberty of the 
 
 subject. 
 
 11. And excessive fines have been imposed, and illegal and cruel pun- 
 J. ishments have been inflicted. 
 
 12. And several grants and promises made of fines and forfeitures, be- 
 fore any conviction or judgment against the persons upon wliom the same 
 were to be levied. 
 
 All which are utterly and directly contrary to the known laws and sta- 
 tutes and freedom of this realm. 
 
 And whereas the said late King James II. having abdicated the govern- 
 ment, and the throne being thereby vacant, his Highness the Prince of 
 Orange, whom it hath pleased God to make the glorious instrument of de- 
 livering this kingdom from popery and arbitrary power, did (by the advice 
 of the lords spiritual and temporal, and divers principal persons of the 
 commons,) cause letters to be written to the lords spiritual and temporal, 
 being protestants ; and other letters to the several counties, cities, universi-* 
 ties, boroughs, and cinque-ports, for the choosing of such persons to represent 
 them as were of right to be sent to parliament, to meet and sit at West- 
 minster upon the 22d day of January of this year 1689, in order to such 
 an establislmient as that their religion, laws, and liberties might not again 
 
BILL OF RIGHTS. 45 
 
 be in danger of being subverted ; upon which letters, elections having been 
 accordingly made : 
 
 . And thereupon the said lords spiritual and temporal, and commons 
 pursuant to their respeclive letters and elections, being now assembled in a 
 full and free representation of this nation, taking into their most serious 
 consideration ^le best means for attaining the ends aforesaid, do, in the 
 first place (as their ancestors in like case have usually done), for the vin- 
 dicating and asserting their ancient rights and liberties, declare — 
 
 1. That the pretended power of suspending of laws, or the execution 
 of laws, by regal authority, without consent of parliament, is illegal. 
 
 2. That the pretended power of dispensing with laws, or the execution 
 of laws, by regal authority, as it hath been assumed and exercised of late, 
 is illegal. 
 
 3. That the commission for erecting the late court of commissioners 
 for ecclesiastical causes, and all other commissions and courts of like nature 
 are illegal and pernicious. 
 
 4. That levying money for or to the use of the crown, by pretence of 
 prerogative, without grant of parliament for longer time, or in other 
 manner than the same is or shall be granted, is illegal. 
 
 5. That it is the right of the subjects to petition the king, and all com- / 
 mitments and prosecutions for such petitioning, are illegal. 
 
 6. That the raising or keeping a standing army within the kingdom in t 
 time of peace, unless it be with consent of parliament, is illegal. 
 
 7. That the subjects that* are protestants may have arms for their j 
 defence suitable to their conditions, and as allowed by law. . ' 
 
 8. That the election of members of parliament ought to be free. 
 
 9. That the freedom of speech, and debates or proceedings in parlia- 
 ment ought not to be impeached or questioned in any court or place out 
 of parliament. 
 
 10. That excessive bail ought not to be required, nor excessive fines I 
 imposed, nor cruel nor unusual punishments inflicted. 
 
 1 1. That jurors 6ught to be duly impanneled and returned ; and jurors [ 
 which pass upon men in trials for high-treason ought to be freeholders. 
 
 12. That all grants and promises of fines and forfeitures of particular 
 persons before conviction are illegal and void. 
 
 13. And that for redress of all grievances, and for amending, strength- 
 ening, and preserving of the laws, parliaments ought to be held frequently. 
 
 I. And they do claim, demand, and insist upon all and singular the 
 premises, as their undoubted rights and liberties ; and that no declarations, 
 judgments, doings, or proceedings, to the prejudice of the people in any 
 of the said premises, ought in anywise to be drawn hereafter into conse- 
 quence or example. • 
 
 II. Having entire confidence, &c. The said Lords spiritual and tern- 
 
46 BILL OF RIGHTS- 
 
 poral, and Commons, assembled at Westminster, do resolve, that William 
 and Mary, Prince and Princess of Orange, be, and be declared King and 
 Queen of England, France, and Ireland, and the dominions thereunto 
 belonging, to hold the crown and roval dignity of the said kingdoms and 
 dominions to them the said prince and princess, during their lives, and the life 
 of the survivor of them ; and that the sole and full exercise of the regal 
 power be only in, and executed by the said Prince of Orange, in the names 
 of the said prince and princess, during their joint lives ; and after their 
 deceases, the said crown and royal dignity of the said kingdoms 
 and dominions 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. And the lords spiritual and temporal, and commons, 
 do pray the said prince and princess to accept the same accordingly. 
 
 III. And that the oaths hereafter mentioned be taken by all persons of 
 whom the oaths of allegiance and supremacy might be required by law, 
 instead of them : and that the said oaths of allegiance and supremacy be 
 abrogated. 
 
 " I, A. B. do sincerely promise and swear, that I will be faithful, and 
 bear true allegiance to their majesties King William and Queen Mary. 
 So help me God:^ 
 
 ''I, A. B. do swear, that I from my heart abhor, detest, and abjure, as 
 impious and heretical, that damnable doctrine and position, that Princes 
 excommunicated or deposed hy the Pope, or any authority of the see of 
 Rome, may be deprived or murdered by their subjects, or any other what- 
 soever. And I do declare, that no foreign prince, person, prelate, state, 
 or potentate, hath or ought to have any jurisdiction, power, superiority, 
 pre-eminence, or authority, ecclesiastical or spiritual, within this realm. So 
 help tne God.''^ 
 
 IV. Upon which their said Majesties did accept the crown and royal 
 dignity of the kingdoms, &c, according to the resolution and desire of the 
 said Lords and Commons contained in the said resolution. 
 
 V. And thereupon their Majesties were pleased, that the said Lords 
 spiritual and temporal, and Commons, being the two houses of parliament, 
 should continue to sit, and with their Majesties' royal concurrence, make 
 effectual provision for the settlement of the religion, laws, and liberties of 
 this kingdom, so that the same for the future should not be in danger 
 again of being subverted ; to which the said lords spiritual and temporal, 
 and commons, did agree, and proceed to act accordingly. 
 
 VI. Now, in pursuance of the premises, the said lords spiritual and tem- 
 poral, and commons, in parliament assembled, for the ratifying, confirm- 
 ing, and establishing the said declaration, and the articles, clauses, matters, 
 and things therein contained, by the force of a law made in due form by 
 
BILL OF RIGHTS. 47 
 
 authority of parliament, do pray, that it may be declared and enacted, 
 that all and singular the rights and liberties asserted and claimed in the 
 said declaration are the true, ancient, and indubitable rights and liberties 
 of the people of this kingdom, and so shall be esteemed, allowed, adjudged, 
 deemed, and taken to be ; and all and every the particulars aforesaid shall 
 be firmly and strictly holden and observed, as they are expressed in the 
 said declaration ; and all officers and ministers whatsoever shall serve their 
 majesties and successors according to the same in all times to come. 
 
 VII. And the said lords spiritual and temporal, and commons, seriously 
 considering how it hath pleased Almighty God, in his marvellous provi- 
 dence and merciful goodness to this nation, to provide and preserve their 
 said Majesties' royal persons most happily to reign over us upon the throne 
 of their ancestors, for which they render unto him, from the bottom of 
 their hearts, their humblest thanks and praises, do truly, firmly, assuredly, 
 and in the sincerity of then- hearts, think, and do hereby recognize, ac- 
 knowledge, and declare, that King James II. having abdicated the govern- 
 ment, and their Majesties having accepted the crown and royal dignity as 
 aforesaid, their said Majesties did become, were, and of right ought to 
 be, by the laws of this realm, our Sovereign Lord and Lady, King and 
 Queen of England, France, and Ireland, and the dominions thereunto be- 
 longing ; in and to whose princely persons the royal state, crown, and dig- 
 nity of the said realms, with all honours, styles, titles, regalities, preroga- 
 tives, powers, jurisdictions, and authorities to the same belonging and 
 appertaining, are most fully, rightfully, and entirely invested, and incorpor- 
 ated, united, and invested. 
 
 VIII. And for preventing all question and divisions in this realm, by 
 reason of any pretended titles to the crown, and for preserving a certainty 
 in the succession thereof, in and upon which the unity, peace, tranquillity, 
 and safety of this nation doth, under God, wholly consist and depend, the 
 said lords spiritual and temporal, and commons, do beseech their Majesties 
 that it may be enacted, established, and declared, that the crown and regal 
 government of the said kingdoms and dominions, with all and singular the 
 premises thereunto belonging and appertaining, shall be and continue to 
 their said Majesties, and the survivor of them, during their lives, and the 
 survivor of them ; and that the entire, perfect, and full exercise of the re- 
 gal power and government be only in and executed by his Majesty, in the 
 names of both their Majesties, during their joint lives ; and after their 
 deceases, the said crown and premises shall be and remain to the heirs of 
 the body of her Majesty ; and for default of such issue, to her royal high- 
 ness the Princess Anne of Denmark, and tlie heirs of her body ; and for 
 default of such issue, to the heirs of the body of his said Majesty. And 
 thereunto the said lords spiritual and temporal, and commons, do in the 
 name of all the people aforesaid, most Iiumbly and faithfully submit them- 
 
48 BILL OF RIGHTS. 
 
 selves, their heirs and posterities, for ever ; and do faithfully promise, tliat 
 they will stand to, maintain, and defend their said Majesties, and also the 
 limitation and succession of the crown, herein specified and contained, to 
 the utmost of their powers, with their lives and estates, against all persons 
 whatsover that shall attempt any thing to the contrary. 
 
 IX. And whereas it has been found by experience, that it is inconsist- 
 ent with the safety and welfare of this protestant kingdom to be governed 
 by a popish prince, or by any king or queen marrying a Papist, the said 
 lords spiritual and temporal, and commons, do farther pray that it may be 
 enacted, that all and every, person and persons that is, are, or shall be re- 
 conciled to, or shall hold communion with the see or church of Rome, or 
 sliall profess tlie popish religion, or shall marry a Papist, shall be excluded, 
 and be for ever incapable to inherit, possess, or enjoy the crown and 
 government of this realm, and Ireland, and the dominions thereunto be- 
 longing, or any part of the same, or have, use, or exercise any regal 
 power, authority, or jurisdiction within the same ; and in all and every 
 such case or cases, the people of these realms shall be, and are hereby ab- 
 solved of their allegiance ; and the said crown and government shall from 
 time to time descend to, and be enjoyed by such person or persons, being 
 Protestants, as should have inherited or enjoyed the same, in case the said 
 person or persons so reconciled, hold communion, or professing, or marry- 
 ing, as aforesaid, were naturally dead. 
 
 X. And that any king and queen of this realm, who at any time here- 
 after shall come to and succeed in the imperial crown of this kingdom, 
 shall, on the first day of the meeting of the first parliament next after his 
 or her coming to the crown, sitting in his or her throne in the house of 
 peers, in the presence of the lords and commons therein assembled, or at 
 his or lier coronation, before such person or persons who shall administer 
 the coronation oath to him or her, at the time of his or her taking the 
 said oath, (which shall first happen,) make, subscribe, and audibly repeat 
 the declaration mentioned in the statute made in the thirtieth year of the 
 reign of King Charles the Second, intituled, A?i act for more effectually 
 'preserving the king's jyerson and government hy disabling Papists from 
 sitting in either house of imrliament. But if it shall happen, that such 
 king or queen, upon his or her succession to the crown of this realm, shall 
 be under the age of twelve years, then every such king or queen shall 
 make, subscribe, and audibly repeat tlie said declaration at his or her co- 
 ronation, or on the first day of the meeting of the first parliament as afore- 
 said, which shall first happen, after such king or queen shall have attained 
 the said age of twelve years. 
 
 XI. x\ll which their majesties are contented and pleased shall be de- 
 clared, enacted, and established by authority of this present parhament, 
 and shall stand, remain, and be the law of this realm for ever ; and the 
 
HABEAS CORPUS. 49 
 
 same are by their said majesties, by and with the advice and consent of the 
 lords spiritual and temporal and commons in parliament assembled, and by 
 the authority of' the same, declared, enacted, and established accordingly. 
 
 XII. And be it further declared and enacted, by the authority afore- 
 said, That from and after this present session of parliament, no dispensa- 
 tion by non obstante of, or to any statute, or any part thereof, shall be al- 
 lowed, but that the same shall be held void and of no effect, except a dis- 
 pensation be allowed of in such statute, and except in such cases as shall 
 be specially provided for by one or more bill, or bills, to be passed during 
 this present session of parliament. 
 
 XIII. Provided, that no charter or grant, or pardon granted before the 
 three and twentieth day of October, in the year of our Lord one thousand 
 six hundred and eighty-nine, shall be any way impeached or invalidated 
 by this act, but that the same shall be and remain of the same force and 
 effect in law, and no other, than as if this act had never been made.* 
 
 HABEAS CORPUS. 
 
 The Habeas Corpus act has been justly celebrated as the preserver of 
 British liberty. It is so called because it begins with the words Habeas 
 corpus ad subjiciendum, but the title of the act in the statute book is, 
 " An Act for better securing the liberty of the subject, and for preven- 
 tion of imprisonment beyond the seas." This writ being one of high pre- 
 rogative, must issue from the court of king's bench ; its effects extend 
 equally to every county ; and by it the king requires the person who holds 
 one of his subjects in custody, to carry him before the judge, with the 
 date of the confinement, and the cause of it, in order to discharge him, 
 according as the judge shall decree. But this writ, which might be a re- 
 source in cases of violent imprisonment effected by individuals, or granted 
 at their request, was but a feeble one, or rather was no resource at all 
 against the prince's prerogative, especially under the sway of the Tudors. 
 And even in the first year of Charles I. the judges of the king's bench, who, 
 in consequence of the spirit of the times, and of their holding their places 
 durante bene placito, were constantly devoted to the court, declared, '' that 
 they could not, upon a habeas corpus, either bail or deliver a prisoner, 
 though committed without any cause assigned, in case he was committed 
 by the special command of the king, or by the lords of the privy council. 
 
 * Statutes at Large. 
 6 
 
50 HABEAS CORPUS. 
 
 Those principles and the mode of procedure which resulted from them 
 drew the attention of parliament : and in the bill called the Petition of 
 Right ; passed in the third year of the reign of Charles I. it was enacted, 
 that no person should be kept in custody, in consequence of such impri- 
 sonment. But the provisions of this act was liable to evasion and abuse : 
 though the judges did not refuse to discharge a man imprisoned without a 
 cause, yet they could use so much delay in the examination of the causes, 
 that thereby the full effect of an open denial of justice could be obtained. 
 To remedy this the legislature again interposed, and in the act passed in 
 the sixteenth year of the reign of Charles I. the same in which the star 
 chamber was suppressed, it was enacted, that, " if any person be commit- 
 ted by the king himself in person, or by his privy council, or by any of the 
 members thereof, he shall have granted unto him, without delay upon any 
 pretence whatever, a writ of Habeas Corpus and that the judge shall there- 
 upon, within three court days after the return is made, examine and de- 
 termine the legality of such imprisonment." This act seemed to prevent 
 the possibility of future evasion : yet it was evaded still ; and, by the con- 
 nivance of the judges the person who detained the prisoner could, without 
 danger, wait for a second, and a third writ, called an alias and a pluries, 
 before he produced him. 
 
 All these different artifices at length gave birth to the famous act of 
 HABEAS CORPUS in the thirty first year of the reign of Charles II. which 
 is considered in England as a second Great Charter and has extinguished 
 all the resources of oppression. Its principle provisions are, 1. To fix 
 the different terms for bringing a prisoner, those terms are proportioned 
 to the distance, and none can in any case exceed twenty days, 2. Tliat 
 the officer and keeper neglecting to make due returns, or not delivering 
 to the prisoner or his agent, within six hours after demand, a copy of the 
 warrant of commitment, or shifting the custody of the prisoner from one 
 to another, without sufficient reason or authority, shall, for the first of- 
 fence, forfeit one hundred pounds, and for the second two hundred, to the 
 party aggrieved, and be disabled to hold his office, 3. No person, once 
 delivered by habeas corpus, shall be re-committed for the same offenre, on 
 penalty of five liundred pounds, 4. Every person committed for treason 
 or felony, shall, if he require it, in the first week of the next term, be in- 
 dicted in that term or session, or else be admitted to bail, unless it should 
 be proved upon oath, that the king's witnesses cannot be produced at that 
 time : and if not indicted and tried in the second term or session, he shall 
 be discharged of his imprisonment for such imputed offence. 5. Any of 
 the twelve judges or the lord chancellor, who shall deny a writ of habeas 
 corpus, on sight of the warrant, or on oath that the same is refused, shall 
 severally forfeit to the aggrieved party five hundred pounds, 6. No inhab- 
 itant of England (except persons contracting, or convicts praying to be 
 
TRIAL BY JURY. 51 
 
 transported,) shall be sent prisoner to Scotland, Ireland, Jersey, Guernsey^ 
 or any place beyond the seas, within or without the king's dominions; on 
 pain, that the party committing, his advisers, aiders, and assistants, shall 
 forfeit to the party aggrieved, a sum not less than five hundred pounds, to 
 be recovered with treble costs — shall be disabled to bear any office of trust 
 or profit — shall incur the penalties of a premunire, and be incapable of the 
 king's pardon. * 
 
 TRIAL BY JURY. 
 
 The trial of civil and criminal causes by a jury of twelve men, appears 
 to have been introduced by William the Conqueror, and given by him as 
 an inestimable inheritance to England for all generations, and which is now 
 considered the birthright of every Briton, yet originally it was the spon- 
 taneous and free gift of the crown ; and as the hearts of kings are in God's 
 keeping, He prompts them to confer benefits on tlieir subjects, which pre- 
 serves justice and prevents oppression and violence. William was attached 
 to all his Norman customs, and introduced them into England. This 
 custom was not established at first by any positive statute, but came into 
 use by slow degrees, and was far from being common, for almost all causes 
 were tried by the senseless method of ordeals, which were of several sorts. 
 But in the reign of Henry II., a law was made allowing the defendant in 
 criminal or civil processes, to defend his innocence, or his right, either by 
 battle or by a jury of twelve men, called the grand assize ; the trial by 
 jury, being the most rational, became more and more frequent, till at 
 length it completely eclipsed its barbarous rival the judicial combat, and aU 
 other ordeals. The Conqueror without doubt destroyed the freedom and 
 liberty of the English, but by the grant of trials by jury he planted the 
 germ of English freedom, which was fully accomplished by the famous act 
 of the 12 Charles II., from whence may be dated the re-establishment of 
 the church and monarchy, and the restoration of that liberty for which the 
 English nation had struggled ever since the era of the conquest. By the 
 act just named, Charles II. removed all the slavish tenures, the badge of 
 foreign dominion, with all their oppressive appendages, from encumbering 
 the estates of the subjects : and also an additional security of his person 
 from imprisonment was obtained by that great bulwark of our constitution, 
 the habeas corpus act. These two statutes, with regard to our property 
 
 * Blaekstoiie, De Lolirie,- — Statutes at Large. 
 
52 TRIAL BY JURY. 
 
 and persons, form a second magna charta, more beneficial and effectual 
 than that conceded by king John at Runnymede. 
 
 Trials by jury in civil causes, are of two kinds ; ordinary and extraordi- 
 nary. 
 
 Jurors returned by the Sheriff are either special or common jurors. 
 Special jurors were originally introduced in trials at bar, when the causes 
 were of too great nicety for the discussion of ordinary freeholders; or 
 where the sheriff was suspected of partiality, though not upon such ap- 
 parent cause as to warrant an exception to him. He is in such cases upon 
 motion in court, and a rule granted thereupon, to attend the prothonotary 
 or other proper officer, with his freeholder's book, and the officer is to 
 take, indifferently, forty-eight of the principal freeholders, in the presence 
 of the attorney on both sides, who are each of them to strike off twelve, 
 and the remaining twenty-four are returned upon the panel. 
 
 A common jury is one returned by the sheriff according to the direc- 
 tions of the statute 3 Geo. II. c. 25, which appoints that the sheriff or of- 
 ficer shaU not return a separate panel for every cause, as formerly, but 
 one and the same panel for every cause to be tried at the same assizes, 
 containing 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 cause is called, twelve of these persons, whose names 
 shall be first drawn out of the box, shall be sworn upon the jury, unless ab- 
 sent, challenged, or excused, or unless a previous view of the messuages, lands, 
 or place in question, shall have been thought necessary by the court ; in 
 ■which case, six or more of the jurors returned, to be agreed on by the 
 parties, or named by a judge or other proper officer of the court, shall be 
 appointed by special writ of habeas corpora or distringas, to have the mat- 
 ter in question shown to tliem by 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 previous to any other jurors. 
 
 As the jurors appear when called, they shall be sworn, unless challenged 
 by either party. Challenges are of two sorts, challenges to the arrai/, and 
 to the polls. 
 
 Challenges to the array are at once an exception to the whole panel, in 
 which the jury are arrayed or set in order by the sheriff in his return, and 
 they may be made upon account of partiality or some default in the sheriff, 
 or his under officer who arrayed the panel. Also, though there be no 
 personal objection against the sheriff, yet if he arrays the panel at the 
 nomination or under the direction of either party, this is good cause of 
 challenge to the array. The array by the ancient law may also be chal- 
 lenged, if an alien be party to the suit, and upon a rule obtained by his 
 motion to the court for a jury de medietate lingnce, such a one be not 
 returned by the sheriff pursuant to the statute 28 Edward III. c. 13, en- 
 
TRIAL BY JURY. 53 
 
 forced by 8 Henry VI. c. 29, which enact that when either party is an 
 alien born, the jury shall be one half denizens, and the other aliens, for 
 the more impartial trial. But where both parties are aliens, no partiality 
 is to be presumed to one more than another ; and therefore it was resolved 
 soon after the statute 8 Hen. VI. that when the issue is joined between two 
 aliens (unless the plea be had before the mayor of the staple, and thereby 
 subject to the restrictions of the statute 27 Ed. III.) the jury shall be den- 
 izens. 
 
 Challenges to the polls, in capite, are exceptions to particular jurors. 
 Challenges to the polls of the jury, (who are judges of fact,) are reduced 
 to four heads by Sir E. Coke, propter honoris respectum^ propter defec- 
 tum, propter affectum, and propter delictum. 
 
 1 . Propter ho?ioris respectum ; as if a lord of parliament be empannel- 
 led on a jury, he may be challenged by either party, or he may challenge 
 himself 
 
 2. Propter defectum ; as if a juryman be an alien born, this is defect of 
 birth ; if he be a slave cr bondman, this is defect of liberty, and he cannot 
 be liber et legalis homo. But the principal deficiency is defect of estate, 
 sufficient to qualify him to be a juror. This depends upon a variety of 
 statutes. By the statute 4 and 5 W. and M. c. 24, it was raised to £lO 
 per annum in England, and £6 in Wales, of freehold lands or copyhold, 
 which is the first time that copyholders (as such) were admitted to serve 
 upon juries in any of the king's courts, though they had before been ad- 
 mitted to serve in some of the sheriff's courts, by statutes 1 Ric. III. c. 4, 
 and 9 Hen. VII. c. 13. And lastly, by statute 3 Geo. II. c. 25, any 
 leaseholder for the term of five hundred years absolute, or for any term 
 determinable upon life or lives, of the clear yearly value of £20 per annum 
 over and above the rent reserved, is qualified to serve upon juries. When 
 the jury is de medietate lingucB^ i. e. one moiety of the English tongue or 
 nation, and the other of any foreign one, no want of lands shall be cause 
 of challenge to the alien ; for as he is incapable of holding any, this would 
 totally defeat the privilege. 
 
 Jurors may be challenged, propter affectum, for suspicion of bias or par- 
 tiality. This may be either as a principal challenge, or to the favour. 
 A principal challenge is such, where the cause assigned carries with it 
 prima facie evident marks of suspicion, either of malice or favour : as, 
 that a juror is of kin to either party within the ninth degree, that he hath 
 been an arbitrator on either side, that there is an action depending between 
 him and the party, that he has taken money for his verdict, that he has 
 formerly been a juror in the same cause, that he is the party's master, ser? 
 vant, counsellor, steward, or attorney, or of the same society or corpora- 
 tion with him ; all these are principal causes of challenge, which, if true, 
 Ijl cannot be overruled, for jurors must be omni exceptione majores. Chal- 
 
54 TRIAL BY JURY. 
 
 lenges to the favour^ or where the party are no principal challenge, but 
 objects only to some probable circumstances of suspicion, as acquaintance 
 and the like ; the validity of which must be left to the determination of 
 triors, whose office it is to decide whether the juror be favourable or un- 
 favourable. The triors, in case the first man called be challenged, are 
 two indifferent persons named by tlie court : and if they try one man and 
 find him indifferent, he shall be sworn ; and then he and two triors shall 
 try the next, and when another is found indifferent and sworn, the two 
 triors shall be superseded, and the two first sworn on the jury shall try the 
 
 rest. 
 
 4. Challenges propter delictum are for some crime or misdemeanor 
 that affects the juror's credit and renders him infamous. As for a con- 
 viction of treason, felony, perjury, or conspiracy ; or if for some infamous 
 offence he hath received judgment of the pillory, tumbrel, or the like ; if 
 he has been branded, whipped, or stigmatized ; or if he be outlawed or ex- 
 communicated, or hath been attainted of false verdict, premunire, or for- 
 gery. 
 
 Besides these challenges, which are exceptions against the fitness of 
 jurors, and whereby they may be excluded from serving, there are also 
 other causes to be made use of by jurors themselves, which are matter of 
 exemption, whereby their service is excused, and not excluded. x\s by 
 statute Westm, 2, 13, Edw. 1. c. 38, sick and decrepit persons, persons 
 not commorant in the county, and men above seventy years old ; and by the 
 statute of 7 and 8 W. III. c. 32, infants under twenty-one. This exemp- 
 tion is also extended by divers statutes, customs, and charters to physicians 
 and other medical persons, counsel, attornies, officers of the courts, and 
 the like ; all of whom if empannelled, must show their special exemption. 
 Clergymen are also usually excused, out of favour and respect to their func- 
 tion : but if they are seized of lands and tenements, they are in strictness 
 liable to be empannelled, in respect of their lay fees, unless they be in the 
 service of the king, or some bishop. 
 
 If by means of challenges, or other cause, a sufficient number of unex- 
 ceptionable jurors doth not appear at the trial, either party may pray a 
 tales. A tales is a supply of such men as are summoned upon the first 
 panel, in order to make up the deficiency. For this purpose a writ of 
 decern tales, octo tales, and the like, was used to be issued to the sheriff at 
 common law, and must still be done at a trial at bar, if the jurors make 
 default. But at the assizes, or nisi prius, by virtue of the statutes 35 
 Hen. VIII. c. 6, and other subsequent statutes, the judge is empowered at 
 the prayer of either party to award a tales de circumstantibus, of persons 
 present in court, to be joined to the other jurors to try the cause, who 
 are however liable to tlie same challenges as the principal jurors. 
 
 When a sufficient number of persons empannelled or tales-men appear. 
 
TRIAL BY JURY. 55 
 
 they are then separately sworn well and truly to try the fesue between the 
 parties, and a true verdict to give according to the evidence, and hence 
 they are denominated the jury, jurata, Siud Jurors^ sc.juralores. 
 
 The jury are now ready to hear the merits ; and to fix their attention 
 the closer to the facts which they are empannelled and sworn to try, the 
 pleadings are opened to them by counsel on that side which holds the affir- 
 mative of the question at issue. The opening counsel briefly informs them 
 what has been transacted, in the court above ; the parties, the nature of the 
 action, the declaration, the plea, replication, and other proceedings, and 
 lastly, upon what point the issue is joined, which is there sent down to be 
 determined. The nature of the case, and the evidence intended to be pro- 
 duced, are next laid before them by counsel also on the same side j and, 
 when their evidence is gone through, the advocate on the other side opens 
 the adverse case, and supports it by evidence, and then the party which 
 began is heard by way of reply. 
 
 Evidence signifies that which demonstrates, makes clear, or ascertains 
 the truth of the very fact or spirit in issue, either on the one side or on 
 the other, and no evidence ought to be admitted to any other point. 
 
 Again, evidence in the trial by jury is of two kinds, either that which 
 is given in proof, or that which the jui*y may receive by their own private 
 knowledge. The former or proofs (to which in common speech the name 
 of evidence is usually confined,) are either written, or parol, that is, by 
 word of mouth. Written proofs, or evidence, are, I, records, and 2, an- 
 cient deeds of thirty years' standing, which prove themselves : but 3, modern 
 deeds, and 4, other writings must be attested and verified hj parol evidence 
 of witnesses. And the one general rule that runs through all the doctrine 
 of trials is this, that the best evidence the nature of the case will admit of 
 shall always be required, if possible to be had ; but if not possible, then 
 the best evidence that can be had shall be allowed. For if it be found 
 that there is any better evidence existing than is produced, the very fact 
 of not producing it, is a presumption that it would have detected some 
 falsehood that at present is concealed. 
 
 With regard to parol evidence, or witjiesses, it must first be remembered, 
 that there is a process to bring them in by writ of suhpcena ad iest'ijicandum, 
 which commands them, laying aside all pretences and excuses, to appear 
 at the trial, on pain of £100, to be forfeited to the king; to which the 
 statute 5 Eliz. c. 9, has added a penalty of £10 to the party aggrieved 
 and damages equivalent to the loss sustained by want of his evidence. But 
 no witness, unless his reasonable expenses be tendered him, is bound io 
 appear at all, nor, if he appears, is he bound to give evidence till such 
 charges are actually paid him, except he resides within the bills of mortal- 
 ity, and is summoned to give evidence within the same. 
 
 All witnesses, of whatever religion or country, that have the use of 
 
56 TRIAL BY JURY. 
 
 their reason, are to be received and examined, except such as are infamous, 
 or such as are interested in the event of the cause. All others are compe- 
 tent witnesses ; though the jury from other circumstances will judge of 
 their credibility. Infamous persons are such as may be challenged as jurors 
 propter delictum ; and, therefore, shall be admitted to give evidence to in- 
 form that jury, with whom they were too scandalous to associate. Inter- 
 ested witnesses may be examined upon a voir dire, if suspected to be se- 
 cretly concerned in the event, or their interest may be proved in court. 
 Which last is the only method of supporting an objection to the former class ; 
 for no man is to be examined to prove his own infamy. And no counsel, 
 attorney, or other person entrusted with the secrets of the cause by the 
 party himself, shall be compelled, or perhaps allowed, to give evidence of 
 such conversation, or matters of privacy, as came to his knowledge by virtue 
 of such trust and confidence, but he may be examined as to mere matters 
 of fact, as the execution of a deed or the like, which might have come to 
 his knowledge without being entrusted in the cause. 
 
 The oath administered to the witness is not only that which he deposes 
 shall be true, but that he shall also depose the whole truth ; so that he is 
 not to conceal any part of what he knows, whether interrogated particularly 
 as to the point or not. And all this evidence is to be given in open court, 
 in the presence of the parties, their attornies, the counsel, and all bystand- 
 ers, and before the judge and jury ; each party having liberty to except 
 to its competency, which exceptions are publicly stated, and by the judge 
 are openly and publicly allowed or disallowed, in the face of the country ; 
 which must curb any secret bias or partiality that might arise in his own 
 breast. And if, either in his directions or decisions, he mis-states the law by 
 ignorance, inadvertence, or design, the counsel on either side may require 
 him publicly to seal a bill of exceptions, stating the point wherein he is sup- 
 posed to err ; and this he is obliged to seal by statute Westm. 2. 13, Edw. 
 I. c. 31, or if he refuses to do so, the party may have a compulsatory writ 
 against him, commanding him to seal it, if the fact alleged be truly stated : 
 and if he returns that the fact is untruly stated, when the case is otherwise, an 
 action will lie against him for making a false return. This bill of excep- 
 tions is in the nature of an appeal ; examinable, not in the court out of 
 which the record issues, for the trial at nisi prius, but in the next imme- 
 diate superior court upon a writ of error, after judgment given in the 
 court below. But a demurrer to evidence shall be determined by the court, 
 out of which the record is sent. This happens where a record or other matter 
 is produced in evidence, concerning the legal consequences of which there 
 arises a doubt in law j in which case the adverse party may if he pleases 
 demur to the wliole evidence ; which admits the truth of every fact that has 
 been alleged, but denies the sufficiency of all of them in point of law, to 
 maintain or overthrow the issue which draws the question of law from the 
 
TRIAL BY JURY. 57 
 
 cognizance of the jury, to be decided by the court. But neither these de- 
 murrers to evidence, nor the bills of exceptions, are at present so much in 
 use as formerly, since the more frequent extension of the discretionary 
 powers of the court in granting a new trial, which is now very commonly 
 had for the misdirection of the judge at nisi priiis. 
 
 When the evidence is gone through on both sides, the judge, in the pre- 
 sence of the parties, the counsel, and all others, sums up the whole to the 
 jury ; with such remarks as he thinks necessary for their direction, and 
 giving them his opinion in matters of law arising upon that evidence. 
 
 The jury after the evidence is summed up, unless the case be very clear, 
 withdraw from the bar to consider of their verdict, and, in order to avoid 
 intemperance and causeless delay, are to be kept without meat, drink, fire, 
 or candle, unless by permission of the judge, till they are all unanimously 
 agreed. If the jury eat or drink at all, or have any eatables about them^ 
 without consent of the court, and before verdict, it is fmeable ; and if they 
 do so at his charge for whom they afterwards find, it will set aside the ver- 
 dict. Also if they speak with either of the parties or their agents, after 
 they are gone from the bar, or if they receive any fresh evidence in private, 
 or if to prevent disputes they cast lots for whom they shall find ; any of 
 these circumstances will utterly vitiate the verdict. 
 
 A verdict (vere dictum J, is either privy or public, but the only effectual 
 and legal verdict is the public verdict, in which they openly declare to have 
 found the issue for the plaintiff or for the defendant ; and if for the plaintiff, 
 they assess the damages also sustained by the plaintiff, in consequence of 
 the injury upon which the action is brought. 
 
 Sometimes, if there arises in the case any diflicult matter of law, the 
 jury, for the sake of better information, and to avoid the danger of having 
 their verdict attainted, will find a special verdict, which is grounded on the 
 statute, Westm. 2, 13 Edw. I. c. 30. And herein they state the naked 
 facts, as they find them to be proved, and pray the advice of the court 
 thereon ; concluding conditionally, that if upon the whole matter the court 
 shall be of opinion that the plaintiff had cause of action, they then find for 
 the plaintiff; if otherwise, then for the defendant. This is entered at length 
 on the record, and afterwards argued and determined in the court at West- 
 minster, whence the issue came to be tried. 
 
 Another method of finding a species of special verdict, is when the jury 
 find a verdict generally for the plaintiff, but subject nevertheless to the 
 opinion of the judge or the court above, on a special case, stated by the 
 counsel on both sides with regard to a matter of law; but the jury may, 
 if they think proper, take upon themselves to determine at their own hazard, 
 the complicated question of fact and law ; and, without either special verdict 
 or special case, may find a verdict absolutely either for the plaintiff or de- 
 fendant. 
 
 H 
 
58 TREASON. 
 
 When the jury have delivered in their verdict^ and it is recorded 
 court, they are then discharged.* 
 
 TREASON. 
 
 Treason, according to lord Coke, is derived from Imhir, signifying to 
 betray ; and irakison, by contraction treason, is the betraying itself. 
 
 When treason is spoken of, it is generally understood to be high treason, 
 unless petit- treason be specially named. Any justice of the peace may, 
 either upon his own knowledge or the complaint of others, cause any per- 
 son to be apprehended for any such offence. And such justice may take 
 the examination of the person apprehended, and the information of all 
 those who can give any material evidence against him, and put the same in 
 writing ; and also bind over such who are able to give any such evidence 
 to the king's bench, or gaol delivery, and certify his proceedings to sucli 
 court. 
 
 No justice of the peace can accept of bail for a person commited for 
 high treason, and he is required immediately to transmit an account of a 
 traitor's examination to the Secretary of State for the Home Depart- 
 ment. 
 
 Lord Hales calls the statute of 25 Edward III. c. 2, which defines trea- 
 son, a sacred act ; lord Coke calls it an excellent act, and both the king 
 and parliament who made it, blessed ; which act settled and defined all 
 treasons which before had been uncertain. It was again by 1 Mar. c. 1 , 
 reinforced and made the only standard of treason, and all other statutes 
 between 25 Ed. III. and 1 Mar., which made many offences high or petit- 
 treason or misprision of treason, were abrogated ; so that no offence is to 
 be esteemed high treason, unless it be declared to be such by the statute of 
 25 Edward III., or made such by some statute since the 1 Mary. 
 
 The statute of 25 Edward III. above alluded to, is as follows : — 
 
 " Whereas divers opinions have been before this time, in what case trea- 
 son shall be laid, and in what not ; the king, at ihe request of the lords 
 and commons, hath made a declaration in the manner as hereafter folio w- 
 eth, that is to say, when a man doth compass or imagine the death of our 
 lord the king, or of our lady his queen, or of their eldest son and Iieir, or 
 if a man do violate the king's companion, (that is his wife,) or the king's 
 eldest daughter unmarried, or the wife of the king's eldest son and heir, or 
 
 * Blaclistone's Commentaries. 
 
TREASON. 69 
 
 if a man do levy war against our lord the king in his realm, or be adherent 
 to the king's enemies in his realm, giving to them aid and comfort in the 
 realm, or elsewhere ; and, therefore, be probably attainted of open deed, by 
 the people of their condition. And if a man counterfeit the king's great 
 or privy seal, or his money, and if a man bring false money into the realm, 
 counterfeit to the money of England, knowing the money to be false, and 
 and if a man slay the chancellor, treasurer, or the king's justices of the one 
 bench or the other, justices in eyre, or justices of assize, and all other 
 justices assigned to hear and determine being in their places, doing their 
 offices.'' 
 
 Lord Hale calls the statute of the 1 Mar. sess. 1. c. i., another excellent 
 law, and which he says at one blow laid flat aU the numerous treason at any 
 time enacted since Edward III. " No act, deed, or offence, being by act 
 of parliament made treason, by words or writing, ciphering, deeds, or 
 otherwise whatsover, shall be adjudged to be treason, but only such as be 
 declared by the said statute of the 25 Ed. III." 
 
 It is the opinion of lord Coke, that bare words are not a sufficient 
 overt act, or open deed, whereby to convict a person of treason, but that 
 they are only misprision of treason. Lord Hale also says, that words, un- 
 less expressed in writing, are not regularly an overt act. But Mr Hawkins 
 argues the contrary, and amongst other reasons for his opinion, he ob- 
 serves, that to charge a man with speakmg treason, is unquestionably action- 
 able, which could not be, if no words could amount to treason : also that 
 in case of felony, he who by command or persuasion, induces another to 
 commit felony, is an accessory in felony, so he who does the same in trea- 
 son, is a principal traitor, (there being no accessories in treason, but alJ 
 being principals,) and yet such person does not act, but by words. And, 
 accordingly, it has been the constant practice since the Revolution of 1688, 
 when a person by treasonable discourses has manifested a design to murder 
 or depose the king, to convict him on such evidence. 
 
 To counterfeit the king's coin is high treason. 
 
 Before the passing of the Roman Catholic relief bill, in 1829, there were 
 many offences regarding the usurped jurisdiction of the pope, made trea- 
 son. By 5 Eliz. any person maintaining the authority of the see of Rome 
 in this realm, incurred a praemunire for the first offence, and for the 
 second the pains and penalties of high treason. Any person practising to 
 absolve or withdraw subjects from their allegiance, as also the parties them- 
 selves so absolved or withdrawn, were all declared to be guilty of high trea- 
 son. By the 13 Eliz. any person procuring or publishing a bull, or in- 
 strument from Rome, was guilty of high treason, and any one concealing 
 the same was guilty of misprision of treason. 
 
 By 3 James I., persons perverting others, or being perverted to popery, 
 were guilty of high treason. All Jesuits and popish priests coming into 
 
60 TREASON. 
 
 the realm, unless they conformed, were guUty of high treason. These 
 laws and many others are now repealed, and a papist incurs no penalty in 
 the exercise of his religion. 
 
 In high treason there are no accessories, all are principals ; and, there- 
 fore, whatever act or consent will make a man accessory to a felony before 
 the fact, will make him a principal in a case of high treason. 
 
 By the 3 1 Char. II. persons committed for high treason shall be indicted 
 the next term, or next assize, otherwise they shall be held to bail, unless it 
 appear to the court upon oath, that the witnesses for the king could not 
 be produced in that time ; in such case, they shall be indicted the second 
 term or assize, or else discharged. But, by the 7 W. and M., no person 
 shall be prosecuted for high treason, but within three years after the of- 
 fence was committed, except in the case of designing to assassinate the 
 king's person. 
 
 Persons impeached of high treason by the house of Commons, whereby 
 corruptions of blood shall be made, shall be admitted to make their full 
 defence by two counsel, who shall be assigned for that purpose, in like 
 manner as upon indictments and other prosecutions. They shall be allowed 
 to make their defence by witnesses on oath. And they sliall not be attainted 
 but on the oath of two witnesses, either both of them to the same overt act, 
 or one of them to one, and the other of them to another overt act of the 
 same treason ; unless they shall confess, or stand mute, or refuse to plead, 
 or peremptorily challenge above 35 of the jury. 
 
 The horrible judgment for high treason (except in cases relating to 
 coin,) is, that the traitor shall be carried back to the place from whence he 
 came, and from thence be drawn to the place of execution, and be there 
 hanged by the neck, and cut down alive, his entrails taken out, and burnt 
 before his face, his head cut off, his body divided into four quarters, and his 
 head and quarters disposed of at the king's pleasure. A woman convicted 
 of treason is drawn and burnt. 
 
 In the judgment of high treason, the forfeiture of lands and goods to 
 the king is implied, likewise the loss of dower, and the corruption of blood. 
 
 Any connexion with the exiled royal family during their lifetime was 
 high treason, but after the extinction of that royal but unfortunate line, 
 no attainder for treason disinherited or prejudiced any heir or other person, 
 other than the offender during his life. 
 
 Treason can only be committed against the king ; there can be none 
 against the parliament, for the oath of allegiance is to the king alone, as 
 the only supreme governor j he has no partners in the supremacy. If a 
 man offends against either or both houses of parliament, he is not guilty 
 of treason, but of a breach of privilege, and punished accordingly by im- 
 prisonment. 
 
 Petit Treason. — This is also defined by the famous statute of 25 Ed. 
 
RIOTS. 61 
 
 III., before quoted. " Moreover, there is another manner of treason, when 
 a servant slayeth his master, or a wife her husband ; or when a man, secular 
 or religious, slayeth his prelate, to whom he oweth faith and obedience." 
 
 As before named, high treason can only be committed against the 
 king, petit treason is therefore incurred against a subject. But no person 
 can be convicted but on the oath of two credible witnesses, or on confession. 
 (1. Ed. VI.) The judgment for petit treason is, that he shall be drawn to 
 the place of execution, and there hanged by the neck till he be dead ; the 
 judgment against a woman is, that she shall be drawn to the place of exe- 
 cution and there burnt. The consequences of attainder, are forfeiture of 
 lands, (to the lord of the fee,) and of goods, loss of dower, and corruption 
 of blood. Although there cannot be accessories in high treason, yet in pe- 
 tit treason there may be accessaries both before and after the fact. 
 
 Misprision op Treason. — The word misprision is derived from the 
 French word mespris, which properly signifies neglect or contempt ; and 
 therefore, misprision of treason, in legal understanding, signifies, when one 
 knows of any treason, though neither a party in it, nor consenting to it, 
 yet conceals it, and does not reveal it in convenient time. Every man, 
 therefore, that knows of a treason, ought with all speed to reveal it to the 
 king, his privy council, or other magistrate. But it appears that misprision 
 of petit treason is not subject to the judgment of misprision of high treason, 
 but is only punishable by fine and imprisonment, as in the case of misprision 
 of felony. 
 
 The judgment of misprision of treason is, to be imprisoned during life, 
 to forfeit all his goods for ever, and the profits of his lands during life. * 
 
 RIOTS. 
 
 The most luminous statement of the law with regard to riots, was given by 
 lord chief justice Sir Nicholas Tindal, in a charge to the grand jury at 
 Bristol, on 2d January, 1832, at the opening of the commission for the 
 trial of the rioters in that city, and which is here annexed j as having been 
 delivered solemnly from the judgment-seat, it must be considered as the 
 law of the land. 
 
 Gentlemen op the grand jury, — We are assembled on the present 
 occasion, by virtue of the special commission of his majesty, for the pur- 
 pose of inquiring into, hearing, and determining certain charges of no 
 ordinary stamp and character, founded upon acts of tumultuous outrage, 
 
 * Bums' Justice, vol. i. 
 
62 
 
 RIOTS. 
 
 violence, and rapine, which have recently taken place in this city. I am 
 unable from any information which has been placed before me, to assign 
 the cause, or to trace the exact origin of these enormities you are now 
 called upon to investigate. It appears, however, that a few hours before 
 they were committed, a tumultuary assemblage of the people gathered it- 
 self together, with an object, and for a purpose, which no honest man, or 
 well-wisher of the laws of his country can sufficiently reprobate, — I 
 mean the open and avowed purpose of treating with insult and indignity, if 
 not personal violence, a gentleman placed in a high judicial station, bearing 
 the authority of his sovereign, in the administration of the criminal law 
 within this city, and during part of the very time, engaged in the actual 
 exercise of his judicial functions. It is to be collected from the depositions 
 which I have seen, that the outrages which will form the immediate subject 
 of your inquiry, commenced at about the time of dusk on Saturday even- 
 ing, the 29th of October last, and continued with short intermission, until 
 four o'clock on the Monday morning, when, after the riot act had been 
 read, and the persons assembled, notwithstanding the proclamation, had re- 
 fused for more than an hour to disperse themselves, the further progress of 
 the riot was arrested, and the tumult entirely suppressed by the vigour 
 of the military called in to the aid of the civil magistrate. It has been well 
 said, that the use of the law consists, first, in preserving men's persons 
 from death and violence ; next, in securing to them the free enjoyment of 
 their property ; and although every simple act of violence, and each indi- 
 vidual breach of the law, tends to counteract and destroy this its primary 
 use and object, yet do general risings and tumultuary meetings of the peo- 
 ple, in a more especial and particular manner produce this effect j not only 
 removing all security both for the person and property of man, but, for the 
 time, putting down the law itself, and daring to usurp its place. The law 
 of England hath accordingly, in proportion to the danger which it attaches 
 to riotous and disorderly meetings of the people, made ample provision 
 for preventing such offences, and for the prompt and effectual suppression 
 of them whenever they arise ; and I think it may not be unsuitable to the 
 present occasion, if I proceed to call your attention, with some degree of 
 detail, to the various provisions of the law for carrying that purpose into 
 effect. In the first place, by the common law, every private person may 
 lawfully endeavour, of his own authority, and without any warrant or sanc- 
 tion of the magistrate, to suppress a riot by every means in his power. 
 He may disperse, or assist in dispersing, those who are assembled ; he may 
 stay those who are engaged in it from executing their purpose ; he may 
 stop and prevent others whom he shall see coming up, from joining the 
 rest ; and not only has he the authority, but it is his bounden duty as a 
 good subject of the king, to perform this to the utmost of his ability. If 
 the riot be general and dangerous, he may arm himself against the evil 
 
RIOTS. 63 
 
 doers to keep the peace. Such was the opinion of all the judges in the 
 time of Queen Elizabeth, in a case called " The Case of Arms," (Pop- 
 ham's Rep. 121) — although the judges add, " that it would be more dis- 
 creet for every one in such a case to attend and be assistant to the justices, 
 sheriflfs, or other ministers of the king in doing this." It would undoubt- 
 edly be more advisable so to do, for the presence and authority of the ma- 
 gistrate would restrain the proceeding to such extremities until the danger 
 was sufficiently immediate, or until some felony was either committed, or 
 could not be prevented without recourse to arms, and at all events the as- 
 sistance given by men who act in subordination and concert with the civil 
 magistrate, will be more effectual to attain the object proposed, than any 
 efforts, however well intended, of separate and disunited individuals. But 
 if the occasion demands immediate action, and no opportunity is given for 
 procuring the advice or sanction of the magistrate, it is the duty of every 
 subject to act for himself, and upon his own responsibility, in suppressing 
 a riotous and tumultuous assembly ; and he may be assured that whatever 
 is honestly done by him in the execution of that object, will be supported 
 and justified by the common law ; and whilst I am stating the obligation 
 imposed by the law on every subject of the realm, I wish to observe that 
 the law acknowledges no distinction in this respect between the soldier and 
 the private individual. The soldier is still a citizen, lying under the same 
 obligation, and invested with the same authority to preserve the peace of 
 the king, as any other subject. If the one is bound to attend the call of 
 the civil magistrate, so also is the other ; if the one may interfere for that 
 purpose, when the occasion demands it, without the requisition of the ma- 
 gistrate, so may the other too ; if the one may employ arms for that pur- 
 pose, when arms are necessary, the soldier may do the same. Undoubt- 
 edly the same exercise of discretion which requires the private subject to 
 act in subordination to, and in aid of, the magistrate, rather than upon his 
 own authority, before recourse is had to arms, ought to operate in a still 
 stronger degree with a military force. But when the danger is pressing 
 and immediate, where a felony has actually been committed, or cannot 
 otherwise be prevented, and from the circumstances of the case, no oppor- 
 tunity is offered of obtaining a requisition from the proper authorities, the 
 military subjects of the king, like his civil subjects, not only may, but are 
 bound to do their utmost, of their own authority, to prevent the perpetra- 
 tion of outrage, to put down riot and tumult, and to preserve the lives and 
 property of the people. Still further, by the common law, not only is 
 each private subject bound to exert himself to the utmost, but every sheriff, 
 constable, and other peace-officer is called upon to do all that in them lies 
 for the suppression of riot, and each has authority to command all other 
 subjects of the king to assist them in that undertaking. By an early sta- 
 tute which is still in force, (the 13th Henry IV. c. 7.) " Any two justices, 
 
<»4. RIOTS. 
 
 together with the sheriff, or under-sheriff of the county, shall come with the 
 power of the county, if need be, to arrest any rioters, and shall arrest them ; 
 and they have power to record that which they see done in their presence 
 against the law, by which record the offenders shall be convicted, and may 
 afterwards be brought to punishment." And here I must distinctly ob- 
 serve, that it is not left to the choice or the will of the subject, as some 
 have erroneously supposed, to attend or not, the call of the magistrate as 
 they think proper j but every man is bound when called upon, under pain 
 of fine and imprisonment, to yield a ready and implicit obedience to the 
 call of the magistrate, and to do his utmost in assisting him to suppress 
 any tumultuous assembly. For in the succeeding reign, another statute 
 was passed, which enacts, " That the king's liege people, being sufficient 
 to travel, shall be assistant to the justices, sheriffs, and other officers upon 
 reasonable warning, to ride with them in aid, to resist such riots, routs, 
 and assemblies, on pain of imprisonment, and to make fine and ransom to 
 the king." In the explanation of which statute, Dalton, an early writer of 
 considerable authority, declares that the justices and sheriff may command, 
 and ought to have the aid and attendance of all knights, gentlemen, yeo- 
 men, husbandmen, labourers, tradesmen, servants, and apprentices, and of all 
 other persons being above the age of fifteen years, and able to travel. In 
 later times, the course had been for the magistrates on occasions of actual 
 riot and confusion, to call in the aid of such persons as he thinks necessary, 
 and to swear them as special constables ; and in order to prevent any 
 doubt, if doubt could exist, as to his power to command their assistance by 
 way of precaution, a recent statute, 1 Geo. IV. c. 37, has invested him 
 with that power, in direct and express terms, when riot and felony is only 
 likely to take place, or may reasonably be apprehended. Again, that this 
 call of the magistrates is compulsatory, and not left to the choice of the 
 party to obey or not, appears from the express enactment in that act — that 
 if he disobeys, unless legally exempted, he is liable to the same fines, pen- 
 alties, and punishments as persons refusing to take upon them the office 
 of constable, were by law subject to. But the most important provision 
 of the law for the suppression of riots is to be found in the statute 1 Geo. 
 I. sect. 2, c. 5, by which it is enacted, that if any persons, to the number 
 of twelve or more, being unlawfully, riotously, and tumultuously assembled 
 together, to the disturbance of the public peace, and being required or 
 commanded by any one or moie justice or justices, or by the sheriff, &c., 
 by proclamation to be made in the king's name, and in the form stated in 
 act, to disperse themselves, and peaceably to depart to their habitations, or 
 to their lawful business, shall, to the number of twelve or more, rotwitli- 
 standing such proclamation, unlawfully, riotously, and tumultuously re- 
 main or continue together for the space of one hour after such command 
 or request, made by proclamation, then such continuing together shall be 
 
RIOTS. 65 
 
 adjudged felony, and the offenders shall suffer death as felons. Such are 
 the different provisions of the law of England for the putting down of 
 tumultuary meetings ; and it is not too much to affirm, that if the means 
 provided by the law are promptly and judiciously enforced by the magis- 
 trate, and honestly seconded by the co-operation of his fellow subjects, 
 very few and rare would be the instances in which tumultuous assemblages 
 of the people would be able to hold defiance to the law. Before I proceed 
 to the consideration of the cases in the calendar, let me impress on the at- 
 tention of all those who from idleness, curiosity, or mere thoughtlessness, 
 suffer themselves to form part of a riotous or disorderly meeting, that they 
 subject themselves unconsciously to the danger of a punishment for crimes 
 which they never contemplated ; for where many are collected together in 
 the prosecution of an illegal object, it is often impossible to discriminate 
 between the active and the unoffending part of the mob ; it requires evi- 
 dence on the part of the accused, which they may not be able to produce, 
 in order to defend themselves against the charge of participation in the 
 guilt of others. The only safe course for the peaceable and well-disposed 
 on all occasions of popular tumult is this — to lend their ready aid to assist 
 the magistrates in suppressing it, or at all events forthwith to separate 
 themselves from the others. One class of cases likely to come before you 
 will be founded upon the statute 7 and 8 Geo. IV. c. 30, s. 8, by which it 
 is enacted, that " if any person riotously and tumultuously assemble to- 
 gether to the disturbance of the public peace, shall unlawfully and with 
 force demohsh, pull down, or destroy, or begin to demolish, pull down, or 
 destroy any house, stable, coachhouse, outhouse, warehouse, office, shop, 
 mill, &c., every such offender is guilty of felony, and being convicted there- 
 of, shall suffer death as a felon." In cases of this description, you wiU con- 
 sider whether the individual charged was one of the persons constituting a 
 riotous assemblage which was effecting the destruction of the building. If 
 he formed a part of such riotous assembly at the time the act of demoli- 
 tion began, or if he joined such riotous assembly, so as to co-operate with 
 them whilst the cict of demolition was going on, and before it was com- 
 pleted, in either case he comes within the description of the offence, and 
 within the penaltias imposed by the act, although he may not have been a 
 person who actually assisted by his own hand in the demolition of the build- 
 ing. But the more numerous class of cases seems to be, that which is 
 founded on the second section of the same statute, by which it is enacted, 
 " that if any person shall unlawfully and maliciously set fire to any house 
 or other building mentioned above, whether the same shall be in possession 
 of the offender, or in that of any other person, with intent thereby to in- 
 jure or defraud any person, every such offender shall be guilty of felony, 
 and being convicted thereof shall suffer death as a felon." In this offence, 
 you will perceive it is no constituent part of the description in the statute, 
 
 I 
 
66 RIOTS. 
 
 that the party charged should form one of a tumultuous or riotous as- 
 semblage for the disturbance of the public peace : it is an offence that may 
 be committed by a single individual. If by his word or gesture he incited 
 others to commit the felony ; or if he was so near to the spot at the time 
 that he by his presence wilfully aided and assisted them in the perpetration 
 of the crime, in either of these cases the felony is complete, without any 
 actual manual share in its commission ; and where the statute directs that, 
 to complete the offence, it must have been done with intent to injure or 
 defraud any person, there is no occasion that any malice or ill-will should sub- 
 sist against the person whose property is so destroyed. It is a malicious act in 
 contemplation of law, when a man wilfully does what is illegal, and which, 
 in its necessary consequence, must injure his neighbour ; and it is neces- 
 sary to observe that the setting fire to another's house, whether the owner 
 be a stranger to the prisoner, or a person against whom he had a former 
 grudge, must be equally injurious to him. Nor wiU it be necessary to 
 prove that the house which forms the subject of the indictment, in any par- 
 ticular case, was that which was actually set on fire by the prisoner. It 
 will be sufficient to constitute the offence, if he is shown to have feloniously 
 set on fire another house, from which the flames communicated to the rest. 
 No man can shelter himself from punishment on the ground that the mis- 
 chief which he committed was wider in its consequences than he originally 
 intended. Another class of offenders will be that of persons who stand 
 charged with acts of plunder and theft ; and these may come before you, 
 either aggravated by the circumstance of violence, or threats to the person 
 of the owner, or with the circumstance of a breaking into his dwelling- 
 house, or stealing the property thereout when the house was already broken 
 open. In both which cases the offence is considered of a more aggravated 
 nature, and the measure of punishment is consequently more severe ; and 
 the facts may assume the shape of a simple larceny of the goods of another. 
 In all of which cases, as in the case of arson before adverted to, all who 
 are present, assenting to, and co-operating in the act, are, in point of law, 
 principal offenders. The only other observation I would suggest is this, 
 — that where property which has been stolen is found in the possession of 
 any person recently after the theft is committed, unless circumstances appear 
 to rebut such presumption, he may be presumed guilty of the theft, until 
 he can explain or prove his innocent possession of the property. Upon 
 the subject of a very numerous class of cases relating to the receiving of 
 stolen property, with the guilty knowledge that it has been stolen, I hold 
 it to be unnecessaiy to offer you any observation whatever. There is, 
 however, one case which stands in a different situation from the rest, and 
 to which it may be proper that I should call your particular attention. I 
 mean the case of one Lewis, who was at large upon his recognisance, but 
 who has surrendered since, and who stands charged upon an inquest before 
 
I 
 
 RIOTS. 67 
 
 the coroner, witli the offence of naanslaughter, in shooting a boy of the 
 name of Morris. It appears from the depositions before the coroner, that 
 Lewis was acting in aid of the civil authorities, in assisting to clear the 
 streets, after proclamation had been regularly made, requiring the rioters 
 to disperse themselves, and after they had continued together for more 
 than an hour from the time of making the proclamation. It appears also, 
 by the testimony of the witnesses, that the pistol was not aimed at the boy 
 who was unfortunately struck by the ball. The nature, however, of the 
 offence committed by Lewis will not depend so much upon that fact, as 
 upon the circumstances under which the pistol was originally discharged. 
 If the firing of the pistol by Lewis was a rash act, uncalled for by the oc- 
 casion, or if it was discharged negligently and carelessly, the offence 
 would amount to manslaughter j but if it was discharged in the fair and 
 honest execution of his duty, in endeavouring to disperse the mob, by rea- 
 son of their resisting, the act of firing the pistol was then an act justified 
 by the occasion, under the riot act before referred to, and the killing of the 
 boy would then amount to accidental death only, and not to the offence of 
 manslaughter. — Mr Lewis was acquitted. 
 
 Suppression op Riots by Military Interference — It is said, 
 that " in the year 1780, the law respecting the suppression of riots was so 
 little understood, that a great deal of mischief was effected, which might 
 otherwise have been prevented,"* and " that in the absence of magistrates, 
 even soldiers stood inactive, with arms in their hands, while the greatest 
 atrocities were committed before them." Since that period there have been 
 many occasions on which it has been indispensably necessary to bring this 
 law into force, and to explain its provisions ; particularly at the trials of 
 the Bristol rioters, when it was expounded at considerable length by the 
 present Chief Justice of the Common Pleas. His lordship took that op- 
 portunity of commenting upon the duties imposed by this law upon soldiers. 
 The surprise which was expressed in different parts of the country at the 
 doctrine which he laid down, proved the existence of a general mis-appre- 
 hension upon the subject ; and we are led to suspect, from the language 
 which at that time was commonly used, that the grounds upon which the 
 interference of a military force is accounted legal, and the duties to be 
 performed and the liabilities to be incurred by soldiers, still stand in need 
 of explanation. (See preceding article.) 
 
 There exists, however, so close a resemblance between the duties of a 
 soldier and those of a private citizen in times of disturbance, that in order 
 to make the one class of duties intelligible, we are obliged to give an ex- 
 planation of the other. We shall proceed, then, to quote the law by which 
 the conduct of private citizens and civil magistrates is to be regulated, and 
 
 * Handcock v. Baker, 2 B. and P. 264-. 
 
68 ' RIOTS. 
 
 we will afterwards pass to the peculiar object of our discussion — the duty 
 of a soldier. 
 
 By the common law,* " any private person may lawfully endeavour to 
 suppress a riot, by staying those whom he shall see engaged therein from 
 executing their purpose ; and also by stopping others whom he shall see 
 coming to join them :" and " private persons may even arm themselves in 
 order to suppress a riot ; from whence it seems clearly to follow, that they 
 may also make use of arms in the suppressing of it, if there be a necessity 
 for so doing." It should, however, be observed, that where this law is 
 laid down, a caution is added, as to the propriety of carrying it into execu- 
 tion, viz., " that it seems hazardous for private persons to go so far in 
 common cases, and that such violent methods seem only proper against such 
 riots as savour of rebellion. "f The statute law, applicable to the duties of 
 the private citizen, invariably couples them with the duties of the magis- 
 trate, or of some other peace officer ; but it must be remembered, that the 
 duties and powers of a private citizen at common law, have never been 
 curtailed by statute and remain unaltered ; while other duties, accompanied 
 with certain formalities, have been imposed almost indiscriminately, and 
 certainly without any reference to the distinct military or civil character, 
 upon the whole body of the people. $ This principle pervades the statute 
 of Edward III.,§ and that of George I.,|| and all the other important 
 statutes connected with the subject : no old duties are abolished ; but to 
 those which already existed, new and different duties are superadded. 
 
 The power of a justice of the peace to restrain rioters existed under the 
 common law. By statutes of Edw. III. and Rich. II., he was empower- 
 ed to arrest and chastise them, and to inflict upon them different punish- 
 ments, according to his discretion. If two justices are present, they are 
 empowered by 13 Hen. IV. c 7, s. 1, " to come with the power of the 
 county, if need there be, for the purpose of suppressing disturbance ;" and 
 by 2 Hen. V. c. 8, s. 2, "• the king's liege people, being sufficient to travel, 
 shall be assistants to them, upon reasonable warning, to side with them in 
 aid to resist such riots, routs, and assemblies, on pain of imprisonment, and 
 to make fine and ransom to the king." But the statute under which 
 justices generally act, in their endeavours to quell disturbances, is, the 1 
 Geo. I. c. 5., commonly called the Riot Act. One justice, or more 
 
 * See Popham, 121 ; Kel. 76 ; Chit. Burns' Just. 5, 280. 
 
 t The full extent of the legal powers of a private clUzen in this respect is thus explained by 
 Lord Hale :— « If the felon resists or flies, so that he cannot be taken without kiUing him, 
 this is justifiable and no felony, but still it must be, where he cannot be otherwise taken, for 
 itis for advancement of justice and suppression of felons, and therefore, if they cannot be 
 otherwise apprehended, it is lawful, as well as if it were a constable and had a warrant."— 
 Pleas of the Crown, vol. ii. p. 77. 
 
 i The persons who are not bound by the 2 Hen. V. c. 8, s. 2, to assist magistrates in the sup- 
 pression of riots, are women, clergymen, pei-sons decrepit, and infants under the age of fifteen. 
 § 34 Edw., III., c. 1. il 1 Geo. I. c. 5. 
 
RIOTS. 69 
 
 than one, is, by this statute, enjoined to repair to the scene of distur- 
 bance, and to read the king's proclamation, ordering all persons to de- 
 part peaceably to their habitations. To remain tumultuously assembled, 
 for more than one hour after the reading of this proclamation, is made 
 felony : the magistrate and peace officer are empowered to apprehend the 
 offenders, and to command all his majesty's subjects of age and ability to 
 be assisting to them therein ; and, by a special provision, the magistrates 
 and their assistants are indemnified, in case any of the offenders are maim- 
 ed or killed in the struggle. 
 
 From the consideration of the common law, and of these several statutes, 
 the duties of a private citizen may be easily collected. If no magistrates 
 or peace officers are present, he must make his best exertions by peace- 
 able means to check a riot, and in case any felony is attempted, he is justi- 
 fied in having recourse to arms. If any magistrates are present, he should 
 put himself under their direction, and co-operate with them for the re- 
 establishment of order. Even if they choose to adopt the formalities pre- 
 scribed by a particular statute, the duties imposed and powers conferred 
 by the common law, still remain in force and ought to be immediately ex- 
 ecuted, if any fit emergency arise. To give a familiar instance, — the 
 Riot Act makes it felony to remain tumultuously assembled for more than 
 one hour after the proclamation has been read ; and so far as respects the 
 provisions of the Riot Act, persons so remaining might, in the intermedi- 
 ate hour, be guilty of every species of mischief. The apparent defect is 
 corrected by the provisions of the other statutes, and of the common law, 
 according to which, as we have clearly seen, private persons as well as 
 magistrates have full legal powers for interfering with effect. 
 
 With respect to the suppression of riots, the situation of a soldier and that 
 of a private citizen are precisely the same. ♦' Whatever any other class of 
 his majesty's subjects may do, the military may unquestionably do also."* 
 Lord Chief Justice Tindal laid down the same law in the trial of the Bris- 
 tol rioters, which we have already quoted j and in the King v. Pinny, the 
 attorney-general quoted the authorities of lords Mansfield and Thurlow 
 to the same effect. We may add, that there is in civil law (we use the 
 term as contradistinguished from military law) no distinction between the 
 officer and the private soldier. They all appear in the same character of 
 citizens, when called out to suppress riot. If the private citizen is bound 
 to stay the riot by gentle means, so are the soldier and officer ; if the pri- 
 vate citizen is bound to obey the magistrate or peace officer, to use vio- 
 lent means in preventing a felony, and even to hazard the destruction of 
 life in his exertions to maintain peace : upon the officer and soldier the same 
 duties are incumbent in the same form and in the same degree. 
 
 * See the opinion of the late Lord Ellenborough, printed amongst the " General Orders 
 issued to the army by the commander-in-chief, 1801." 
 
70 RIOTS. 
 
 So far then all is plain, that the soldier is not placed in a more difficult 
 situation than the private citizen. But the soldier is bound by another 
 law, peculiarly applied to himself, namely, the military law, or that 
 which is contained in the Mutiny Act ; and before we can clearly under- 
 stand the position in which he stands, we must examine the provisions 
 contained in this act for occasions of this nature. 
 
 Respecting our military law there prevails a great deal of error. It 
 has often been mentioned as a law at variance with all the rest of our 
 law ; a law separate and distinct in itself, and dangerous to the public 
 liberties ; whereas it is in reality a part of the general law, consistent with 
 other laws and recognising their existence, and by no means interfering 
 with the general rights and liberties of the subject. Like every other 
 law which applies directly to a peculiar class, it is partial in its operation ; 
 and it certainly restricts the privileges of that class of persons for the 
 government of whom it is enacted. But to the general liberties of the 
 subject it is peculiarly favourable, as it serves to restrain a body that 
 might overpower the civil force and establish tyranny over the country ; 
 ''for nothing is so dangerous to the civil establishment of a state, as a 
 licentious and undisciplined army."* Lord Loughborough's observations 
 upon the true nature of our military law, and its difference in character 
 and eflfect from the law which generally bears that name, are so clear and 
 so much to the point, that we are tempted to offer them at some length 
 to the consideration of our readers. " This leads me to an observation 
 that martial law, such as it is described by Hale, and such also as it is 
 marked by Mr Justice Blackstone, does not exist in England at all. Where 
 martial law is established and prevails in any country, it is of a totally 
 different nature from that which is inaccurately called 'martial law,' 
 merely because the decision is by a court martial, but which bears no af- 
 finity to that which was attempted to be exercised in this kingdom, which 
 was contrary to the constitution, and which has been for a century totally 
 exploded. Where martial law prevails, the authority under which it is 
 exercised, claims a jurisdiction over all military persons under all circum- 
 stances ; even their debts are subject to inquiry by a military authority ; 
 every species of offence committed by any person who appertains to the 
 army is tried, not by a civil judicature, but by the judicature of the regi- 
 ment or corps to which he belongs. It extends also to a great variety of 
 cases, not relating to the discipline of the army, in those states which sub- 
 sist by military power. Plots against the sovereign, intelligence to the 
 enemy, and the like, are all considered as within the cognizance of mili- 
 tary authority." Again : " The army being established by the authority 
 of the legislature, it is an indispensable requisite of that establishment that 
 
 * 2 H. Blackstone, 68. 
 
RIOTS. 71 
 
 there should be order and discipline kept up in it, and that the persons 
 who compose the army, for all offences in their military capacity, should 
 be subject to a trial by their officers. This has induced the absolute neces- 
 sity of a Mutiny Act accompanying the army."* 
 
 The military law, then, which prevails in this country is narrowly con- 
 fined in its operation, affects none but persons receiving military pay, and 
 i^^ffects even them only in respect of military offences. The line of dis- 
 ^^Mbiction between the two classes of cases which fall between the civil and 
 ^Hbilitary jurisdictions has been established by the civil courts with a just 
 [^|eaiousy of military interference,f so that even an inferior officer may 
 bring an action against his superior if the limits of military authority are 
 transgressed. Besides, one of the first provisions of the Mutiny Act is, 
 that " nothing in tliis act:j: contained shall be construed to exempt any 
 officer or soldier from being proceeded against by the ordinary course of 
 law j" and there is an additional precaution which prevents the act from 
 endangering public liberties, namely, that its existence terminates with 
 each successive year. 
 ^^^ Such being the nature of our military law, its provisions must always be 
 iHponstrued in accordance with the other portions of that general law, of 
 which it is a part. The only clause of the Mutiny Act which can be 
 made applicable to the suppression of riots is that in which the soldier is 
 required on pain of death " to obey the legal commands of his officer." 
 Our construction of these words may sound harshly in the ear of an ad- 
 vocate for rigid military discipline and the paramount superiority of officer 
 over soldier ; nevertheless, it is the true legal doctrine, that in every case 
 the duty of obedience on the part of the soldier depends upon the legality 
 or illegality of the command ; and the soldier who does an illegal act m 
 obedience to the command of his officer, cannot bring forward the com- 
 mand as a sufficient legal defence in a civil court of justice. 
 
 An objector to this doctrine will probably ask, whether the obedience of 
 a soldier is in every case to depend upon his own judgment, whether he is 
 to exercise his own discretion, and, in case he entertain doubts upon the 
 legality of the orders, to set up his own opinion in defiance of his officer ? 
 Such is certainly his duty according to the laws which now prevail ; nor is 
 it in practice accompanied with so many difficulties as might perhaps have 
 been anticipated. In time of war, almost all measures, however violent, 
 may be legally commanded, if they are db-ected against an enemy j in 
 time of peace, the routine of daily discipline is clear and simple, and leaves 
 no room for hesitation as to the legality of the officer's commands. Amongst 
 the few occasions on which doubts can arise, is this case of the suppression 
 
 * 2 H. Blackstone, 99. t See Warden v. Ballej', 4 Taun, 67. 
 
 \ See 2 Geo. IV., c. 28, s. 2. 
 
72 
 
 RIOTS. 
 
 of riot. Yet even in this case the responsibility of the soldier, so far as 
 respects the civil courts, is no greater than the responsibility of a private 
 citizen. A private citizen, carrying deadly weapons, would not be justi- 
 fied in using them, because a magistrate ordered him to do so, unless the 
 circumstances were of so aggravated a character as to justify the magistrate 
 in giving the order ; — while, on the other hand, he might be punished for 
 neglecting to use them, if the magistrate was justified in giving the order, 
 and he refused to obey it. Thus must he, as well as the soldier, decide 
 upon the question of legality. 
 
 Suppose the military law were diff'erently framed, and the word legal 
 omitted, and the soldier were obliged to obey every command of his of- 
 ficer. An instance might then occur in which an officer, either through 
 ignorance or barbarity, might give orders to fire upon a multitude, whose 
 conduct did not justify the attack j hundreds might be butchered within a 
 few minutes, and the whole evil be attributable to the error of a single in- 
 dividual. A soldier would always be justified in shedding blood, provided 
 his commander gave the command ; and the person in authority would be 
 a giant of a hundred hands for the execution of evil. Such principles are 
 abhorrent, not merely from the condition of free citizens, but also from the 
 laws of humanity. Soldiers would become the objects of general appre- 
 hension, for every man would remember, that in all institutions, however 
 well regulated and however much approved by experience, some members 
 will always be found destitute of principle, or wholly incapable of regulat- 
 ing their passions, who, to gratify their feelings of revenge, or in perfect 
 recklessness of the miseries they are producing, may employ their formidable 
 strength in oppressing or destroying their fellow-subjects. Such a case is 
 an extreme case, and highly improbable, and is suggested merely to show 
 the tendency of such an alteration of the law. If the soldier is to be justi- 
 fied in obeying every command of his oflficer, the justification will include 
 the worst as well as the best command ; but if any line is to be drawn 
 where the duty of obedience shall terminate and that of disobedience begin, 
 we are at a loss to discover a line less inconvenient to all parties than that 
 which is drawn upon the principle of legality. 
 
 The difference between the soldier and private citizen, when engaged 
 in repressing disturbance, does not lie in the necessity of considering the 
 legality of the orders which are received, but in the liability of a soldier to 
 be summoned before a military tribunal. He is ordered to fire. If he 
 obeys, will the jury consider the command legal ? If he disobeys, will the 
 court martial decide it to be illegal ? It is the fear of this second tribunal, 
 which, while it is unknown to the private citizen, forms the principal em- 
 barrassment to the soldier. Not that the courts martial are guided by 
 a law which is at variance with the law admitted in all our criminal courts ; 
 
RIOTS. 73 
 
 f jr we * hope that we have given sufficient proofs that the military and 
 civil laws are in harmony with one another, and that the command whicli 
 would be declared illegal in the King's Bench, ought to meet with no ap- 
 probation before a military tribunal : still we know that in the decision of 
 such questions men are strongly influenced by their habits and general 
 opinions ; and that a scene which one man would ridicule as a temporary 
 and unimportant ebullition of popular feeling, would by another, accus- 
 tomed to the quiet regularity and sober discipline of well-organized troops, 
 be treated as a violent commotion, dangerous to the existence of govern- 
 ment, and to be repressed at all hazards, whether of life or property. 
 Thus might the soldier be condemned before the court of his regiment, 
 although his only crime was a refusal to obey his officer and fire upon a 
 mob, when that act would have rendered him, in the eyes of a common 
 jury, liable to a conviction for murder. 
 
 It frequently happens, that, on occasions of this nature, the minds of 
 the jury are unjustly adverse to the soldier. No sooner has a person in 
 the mob been killed by a soldier, than the enemies of order seize upon the 
 event as a means of irritating the public mind, fill the newspapers with the 
 grossest misrepresentations, conceal the violence of the mob and the 
 danger of the soldiers, and poison the mind of the juryman before he 
 enters upon the trial. At the funeral of the late Queen there was a de- 
 termined and pre-arranged attempt to resist the commands of government, 
 to drive back the military, and to prevent the procession from taking 
 place. The soldiers were loaded with every abuse, attacked with stones 
 and brickbats, and rendered incapable of performing tlie duties of an es- 
 cort, or even of protecting their own lives without repelling force by force ; 
 thirty-five were so dangerously wounded as to be taken immediately to the 
 hospital : yet when an inquest was held upon the bodies of the rioters who 
 were killed, one verdict was returned of '•' manslaughter," and the other 
 of " murder," apparently to the great gratification of a large portion of 
 the community. 
 
 The riots of which we have hitherto treated, have amounted either to 
 felonies or misdemeanors. The third species of riot, which amounts to 
 treason, forms a less important subject of consideration than it would have 
 formed two centuries ago ; because many oflTences which were formerly 
 treasons, have been declared by law to be so no longer, and of those which 
 
 * The following is a portion of the oath which is taken by the members of the court 
 martial. " I, A. B., do s^vear that I will duly administer justice according to the rules and 
 articles for the better government of his Majesty's forces, and according to an Act now in 
 force for the punishment of mutiny and desertion, and other crimes therein mentioned, with- 
 out partiality, favour, or affection ; and if any doubt shall arise, which is not explained by 
 the said articles or act, then according to my conscience, the best of my understanding, and 
 the custom of war in like cases." 
 
 K 
 
74 RIOTS. 
 
 are still treasonable, a large proportion are now prosecuted under another 
 character. 
 
 The statute 25 Edward IV. contains those definitions of treason which arti 
 authorities at the present day. The words of that statute within the mean- 
 ing of which a riot may be brought are the following : — " If a man do 
 levy war against our lord the king in his realm j" or " When a man 
 doth compass or imagine the death of our lord the king, or our lady 
 his queen, or of their eldest son and heir." The constructive treasons 
 which were founded upon these words, during the more arbitrary periods 
 of our history, were so numerous, that if they had retained the sanction 
 of- the law, they would have included a large proportion of the riots which 
 have occurred during the present century. The law was happily altered 
 in this particular by the 1st Mary, statute 12, which enacted, " That no 
 act, deed, or offence being by act of parliament made treason, petit treason, 
 or misprision of treason, by words, writing, cyphering, deeds, or otherwise 
 whatsoever, shall be taken, had, deemed, or adjudged to be high treason, 
 petit treason, or misprision of treason, but only such as be declared and ex- 
 pressed to be treason, petit treason, or misprision of treason in or by the 
 act of parliament of 25th Edward III., touching treason or the declaration 
 of treason, and none other, nor that any pains of death, penalties or for- 
 feitures in any wise ensue, or be to any offender or offenders, for doing or 
 committing any treason, petit treason, or misprision of treason, other than 
 such as be in the said act ordained and providexl, any statute made before 
 or after the said 25th year of Edward the III., or any declaration or 
 matter to the contrary notwithstanding." By this act, then, treasons 
 Iiave been reduced to the old standard of 25 Edward III. : yet even this 
 class of offences is still so comprehensive as to include a large number of 
 cases which are in these days treated as common felonies. 
 
 To show the treasonable character attaching to many of those riots 
 which have recently taken place, we may quote the following case which 
 occurred in 1675. " A great number of weavers in and about London, 
 being offended at the engine loom, (which are instruments that have been 
 used these sixty years,) because thereby one man can do as much in a day 
 as nearly twenty men without them, and by consequence c^ afford his 
 ribbands at a much cheaper rate ; after attempts in Parliament and else- ^ 
 where to suppress them, did agree among themselves to rise and go from 
 house to house to take and destroy the engine looms ; in pursuance of 
 which they did, on the 9th, lOth, and 11th of this instant August, as- 
 semble themselves in great numbers, at some places to a hundred, at 
 others to four hundred, and at others, particularly at Stratford- Bow, to 
 about fifteen hundred. They did in a most violent manner break open 
 tlie houses of many of the king's subjects, in which such engine looms 
 were, or were by tliem suspected to be ; they took away the engines, and 
 
V 
 
 RIOTS. 75 
 
 making great fires, burnt the same, and not only the looms, but in many 
 places the ribbands made thereby, and several other goods of tlie persons 
 whose houses they broke openj this they did, not in one place only, but 
 in several places and counties — Middlesex, London, Essex, Kent, and 
 Surrey, in the last of which, viz. at Southwark, they stormed the house of 
 one Thomas Bybby, and though they were resisted, and one of them 
 killed and another wounded, yet at last they forced their way in, took 
 away his looms and burnt them ; the value of the damage they did is 
 computed at several thousand pounds." We might almost fancy that, in 
 quoting this history, we were writing an account of those formidable riots 
 which occurred in the year 1830 ; and we feel convinced that not merely 
 the rioters of that year, but also the public at large, would have been sur- 
 prised to learn that the offence bordered upon high treason, and that a 
 case so precisely similar had been declared treason by five of our judges.* 
 The criminal acts drawn up under Sir Robert Peel's superintendence de-. 
 dare offences of this kind, and many others, which would have formerly 
 been punished as treasons, to be felonies ; but they do not abrogate the law 
 previously existing upon treasons ; they are cumulative, and leave it to the 
 discretion of the public prosecutor whether he shall not indict the offenders 
 upon a charge of high treason. One of the prisoners at the Bristol trials 
 endeavoured to turn the existence of the ancient law to his advantage. 
 Being indicted for the commission of a felony in attacking the public 
 prison, he attempted to put in as a plea that the offence was treason and 
 to be punished as such, because he had openly declared during the attack 
 that he would destroy all the prisons in the land. The judges overruled 
 the objection, not however denying his offence to be treasonable, but as- 
 serting, that although it was treason, it might be still a felony, and prose- 
 cuted as such under the provisions of Sir R. Peel's act.f 
 
 Among the riots, then, which a soldier may be called upon to suppress, 
 some may be misdemeanors, some felonious, others may be felonious and 
 treasonable, and others may distinctly amount to high treason, and ought 
 
 pi* Hale's Pleas of the Crown, vol. i. p. 142. 
 
 t Morning Chroyiide, January 5th. — "Mr Palmer, on behalf of Clarke, took an ob- 
 jection to the indictment, contending that the evidence went to show that he had declared he 
 would set fire to all the gaols in the kingdom, and that he was therebj' guilty of high trea- 
 son, in which the felony was merged. The learned counsel, therefore, submitted that the 
 prisoner must be acquitted. The learned judges, (Tindal, Taunton, and Alderson,) how- 
 ever, in delivering judgment, said that the objection was not tenable. They had yet to 
 learn that if a person who might be charged with high treason had done an act amounting 
 to murder, arson, or other offences which might be made acts of that treason, that therefore, 
 he was to be acquitted as such, and the crown driven to prefer an indictment for high trea- 
 son ; but in this case, the declarations of the prisoner were so far from the time of the acts 
 committed, when it did not appear that he was in company of those who had been concerned 
 with him in committing the acts themselves, that it could not be said that he was guilty of 
 high nvason." 
 
76 RIOTS. 
 
 to be treated as such. The duty incumbent upon a private person for 
 the suppression of treason is not treated in any of our law-books distinctly 
 from the duty of suppressing felony. Lord Hale and Serjeant Ha^vkins* 
 treat of both together ; and having commenced the discussion upon the 
 arrests of " traitors and felons," subsequently employ only the term of 
 *' felons." Indeed, t "in ancient time, every treason was comprehended 
 in the name of felony ;" and lord Hale talks of " treasons and other 
 felonies ;" so that in every case of treason, a private person may safely 
 act as in a case of aggravated felony. In many instances, the nature of 
 the act, such as an attack upofi the king's person, or upon his courts of 
 justice, or his fortresses or troops, will leave no doubt upon the mind of 
 any man as to the course to be pursued ; and it may be observed generally, 
 that the aggravation of the offence will prove to him at once, that, for the 
 purpose of checking it, the use of the most violent means will be perfectly 
 justifiable. The same principle of law which applies to a soldier in respect 
 of felony, will also apply to him in respect of treason. In the eye of the 
 civil law, he acts as a private person, bound by the same duties, and sub- 
 ject to the same responsibility. In respect of military law, he is still bound 
 to obey the legal commands of his officer. If no oflEicer is present, every 
 interference to suppress treason is legal ; if an officer is present, every 
 command issued for that purpose will be legal ; if a magistrate is present, 
 every command issued by him should be obeyed by the officer and trans- 
 mitted to the soldier, and both one and the other are equally bound to 
 obey it. 
 
 Such is the state of the law under which is to be decided, on each suc- 
 cessive riot that occurs, the policy of having recourse to military aid. The 
 magistrate must remember that the responsibility for consequences is not 
 confined to himself alone ; that an improper order, on his part, may sub- 
 ject to capital proceedings, not merely himself, but also those persons, 
 whether civil or military, who act under his directions ; that while private 
 individuals are to consider only their duties as private citizens, the soldier 
 is bound by military as well as civil law ; and that however harmonious tlie 
 one law may be with the other, there may be moments of difficulty, in 
 which the soldier may find himself at a loss between the several obligations 
 which they create. Perhaps the soldier may feel sure that the occasion 
 does not justify the use of fire-arms, even after tlie order to fire has been 
 given ; or, on the other hand, he may consider his own life, or that of 
 others about him, in such jeopardy as to require an immediate attack upon 
 the mob, although he has received orders to remain inactive. In either 
 
 * Hale's Pleas of the Crovm, vol. ii, p. 72. Hawkins' Pleas of the Crowi, vol. ii. 
 p. 114. 
 t Co. 3, Inst. 15. 
 
RIOTS. 77 
 
 rase, he may be uncertain whether his own discretion, or the commands 
 of his officer should be obeyed ; whether he should hazard the decision of 
 a civil, or that of a military court : and unless his services are indispens- 
 able to the maintenance of public peace, he ought not to be exposed by 
 the magistrate to these painful and difficult alternatives. 
 
 At the same time, when matters come to extremities when the civil 
 power is unable to enforce the law, there is no body in this country so 
 effective for the end in view as the regular army. In many instances, 
 soldiers of the militias are personally acquainted with persons in the mob ; 
 they and their officers, as well as the yeomen and their officers, often have 
 as individuals a pecuniary or some other interest in the suppression of dis- 
 order. Thus they will be considered as taking part for their own private 
 advantage, and not for the mere promotion of peace. The subjects on 
 which riots have generally occurred, — the amount of wages, the price of 
 food, or the support of peculiar political opinions, are such as frequently 
 separate the farmer from the labourer, the richer from the poorer classes, 
 the yeoman from the multitude against which he is required to act. The 
 consequence is, that the yeomen is suspected of taking arms, not for the 
 mere purpose of suppressing riot and protecting himself and his property, 
 as well as his fellow subjects and their property, from the violence of in- 
 temperate men, but in order to promote his own political views, to resist 
 claims which the multitude believe to be just, and to settle civil controver- 
 sies by an appeal to the sword. Can such a motive, widely circulated by 
 some mischievous and artful ringleader, fail to raise a general unwilling- 
 ness to concede ? or to excite amongst the rioters a resolution to imitate the 
 bad example which they fancy that they perceive in the conduct of the ex- 
 ecutive power — i. e. to vindicate by a similar recourse to arms, the opin- 
 ions and claims which they are assembled to promote ? We might say 
 much of the evil consequences which are felt after peace has been re-estab- 
 lished, of the discordance between the several ranks of society, of the heart- 
 burnings and anger and indignation with which the peasantry regard the 
 farmer, and the artisans their master manufacturer, while they harbour the 
 sorrowful recollection of some friend or associate who fell a victim in the 
 struggle, and cherish a determination to take the first opportunity of ven- 
 geance. From these and many other drawbacks, which attach to the 
 militia and yeomanry, the regular soldier is wholly exempt. Very pro- 
 bably he marches into the neighbourhood of the scene of action but a few 
 days before the event occurs, and he leaves it immediately afterwards. He 
 has no friends amongst the multitude, no interest in the circumstances out 
 of which the disorder arises — he is the mere agent of the law, and cannot 
 be suspected of any other desire or intention than to perform his duty as 
 a soldier, and in obedience to the commands which he receives to overcome 
 the enemies of order. His interference is humane, because the multi- 
 
T8 RIOTS. 
 
 tude know the impossibility of resistance, and retire from the struggle : it 
 is effective, because his discipline, confidence in his comrades, and ac- 
 quaintance with the use of arms, insure to him an easy victory. Thus it 
 generally happens that life is saved, while tlie law is enforced. 
 
 It is obviously desirable that the people should learn to regard the exe- 
 cutors of the law as altogether distinct from the law itself, to consider their 
 actions as altogether mechanical and independent of the merits or demerits 
 of the law, and in times of riot to regard them as solely endeavouring to 
 re-establish order, without any reference to the cause from which the dis- 
 turbance arose. How this notion can gain ground, if yeomanry, or militia, 
 or any persons principally interested in the causes of disturbance, are them- 
 selves to repress it, we are at a loss to conceive. 
 
 The superiority of the regular army over yeomanry and militia for the 
 suppression of riot, has been long experienced in Ireland. In that coun- 
 try party spirit is inflamed to the highest pitch, audits bitter fruits are too 
 plainly perceived in the distrust and personal hostility whicli divide all ranks 
 of society. The yeomanry are accused (whether justly or unjustly is little 
 to our present purpose) of partiality, violent party feelings, and an opposi- 
 tion to the religion of the vast bulk of the people. They constantly en- 
 counter a vigorous resistance, and their conduct is invariably misrepresented. 
 On the other hand, the soldiers, although performing the same duties and 
 enforcing the same laws, are generally respected, are even popular, are 
 seldom obliged to draw the sword, but compel the restoration of order 
 by the mere apprehension of their force. 
 
 Having explained the law as to the employment of soldiers in maintain- 
 ing the public peace, we cannot help touching upon the idle complaints 
 which have been not unfrequently made, that sucli an employment of them 
 is unconstitutional, or contrary to the liberties and privileges of the subject. 
 As we have shown that the law under which they act is consistent with 
 the other laws by which the whole community are bound, and that in 
 reality they are authorized to act by precisely the same law which autho- 
 rizes all private individuals, we need not detain our readers by proving the 
 complaints to be unfounded, but will merely allude to some of the causes 
 to which the mistake may be attributed. In almost all nations, and at 
 different periods of our history in England, the soldiers have been the 
 agents of despotic power, — it is therefore assumed that they will again act 
 in the same capacity : they have sometimes been employed to restrain the 
 constitutional privilege of meeting and petitioning, — a recurrence of the 
 same conduct is therefore anticipated. Again, they have been required 
 to enforce obnoxious laws, laws perhaps in themselves of an oppressive 
 character, — and the nature of the law has been confused with the character 
 of those who carry it into execution. But the badness of a law supplies 
 no charge against the agent who brings it faithfully into operation ; and 
 
PR^MUNIRE. 79 
 
 acts of tyranny are not now to be anticipated, merely because they were com- 
 mitted in ancient times, when the checks and restraints upon government 
 were adjusted less favourably to the maintenance of public liberties. If it 
 were carefully borne in mind that the law military conforms to the civil 
 law ; that, if an arbitrary minister endeavours to employ the army for il- 
 legal purposes, there is a remedy in the civil courts ; that the refusal to 
 re-enact the military law would at once annihilate this engine of his power ; 
 that the number of the army depends entirely upon the legislature, and 
 most especially upon that part of it which represents the people and has 
 tlie exclusive authority over the soldiers' pay — it would at once be ac- 
 knowledged that very little danger is to be apprehended from the mere 
 employment of the military force, whilst it would be by no means difficult 
 to prove that we should run the greatest risk by unduly diminishing it* 
 
 PR^.MUNIRE. 
 
 Praemunire is a species of offence more immediately affecting the 
 king and his government, though not subject to capital punishment ; it is 
 called praemunire from the words of the writ preparatory to its prosecu- 
 tion ; '' prcemurdre facias A. B." that is, cause A. B. to be forewarned 
 that he appear before us to answer the contempt wherewith he stands 
 charged ; which contempt is particularly recited in the preamble to the 
 writ. It took its original from the exorbitant power claimed and exer- 
 cised in England by the pope, which, even in the days of blind zeal, was 
 too heavy for our ancestors to bear. 
 
 King Edward I., a wise and magnanimous prince, and justly styled the 
 English Justinian, set himself in earnest to shake off this servile yoke. He 
 would not suffer his bishops to attend a general council, till they had sworn 
 not to receive the papal benediction. He made light of all papal bulls and 
 processes ; invading Scotland in defiance of one, and seizing the tempor- 
 alities of his clergy, who, under pretence of another, refused to pay a tax 
 imposed by parliament. He strengthened the statutes of mortmain, thereby 
 closing the great gulf, in which all the lands of the kingdom were in 
 danger of being swallowed up. And one of his subjects having obtained 
 a bull of excommunication against another, he ordered him to be executed 
 
 * The above article is extracted from the Imw Magazine, and is not only of itself a subject 
 of considerable importance, and ought to be generally known, but it forms an excellent cx)m- 
 mentary on the preceding charge of lord chief justice Sir Nicholas Tindal, at Bristol. 
 
80 
 
 PRiEMUNIIlE, 
 
 as a traitor, according to the ancient law. And in the 35th year of his 
 reign was made tlie first statute against papal provisions ; being, accord- 
 ing to Sir Edward Coke, the foundation of all the subsequent statutes of 
 prcemunire^ which is ranked as an offence immediately against the king, 
 because every encouragement of the papal power is a diminution of the 
 authority of the crown. 
 
 In the writ for the execution of all these statutes, the words praemunire 
 facias^ being used to command a citation of the party, here denominated 
 in common speech not only the writ, but the offence itself, of maintaining 
 the papal power by the name of prcemu?iire. The statute 26 Rich. II. c. 
 5, which tmacts, " that whoever procures at Rome, or elsewhere, any 
 translations, processes, excommunications, bulls, instruments, or other 
 things which touch the king, against him, his crown and realm, and all 
 persons aiding and assisting therein, shall be put out of the king's protec- 
 tion, their lands and goods forfeited to the king's use, and they shall be 
 attached by their bodies to answer to tlie king and his council ; or process 
 of prcemunire facias, shall be made out against him, as in other cases of 
 pro visors." 
 
 The penalties of praemunire seem to have kept the depressing power of 
 the pope within the proper bounds of their original institution, up to the 
 reign of Elizabeth ; but, they being pains of very considerable consequence, 
 it has been thought fit to apply the same to other heinous offences, some 
 of whicli bear more and some less relation to this original offence, and 
 some no relation whatever. 
 
 To molest the possessors of abbey lands granted by parliament to Henry 
 VIII. and Edward VI. is a, prcemunire. 
 
 The offence of acting as a broker or agent in any usurious contract, 
 where above ten per cent, interest is taken, is a praemunire. 
 
 To obtain any stay of proceedings, other than by arrest of judgment, or 
 writ of error, in any suit for a monopoly, is likewise a prw7nu?iire. 
 
 To obtain an exclusive patent for the sole making or importing of gun- 
 powder or arms, or to hinder others from importing them, is also a pra^- 
 fnunire. On the abolition by statute 12 Char. II. c. 24, of purveyance, 
 and the prerogative of pre-emption, or taking any victual, beasts, or 
 goods, for the king's use at a stated price, without consent of the proprie- 
 tor, the exertion of any such power for the future was declared to incur 
 the penalties of prcemunire. To assert maliciously and advisedly, by speak- 
 ing or writing, that both or either house of parliament have a legislative 
 authority without the khig, is declared a prcsmunire. To send any sub- 
 ject out of this realm a prisoner into any parts beyond the seas, is a prm- 
 mu7iire, and also a breach of the habeas corpus act, and is incapable of the 
 king's pardon, besides other heavy penalties. Persons of eighteen years 
 of age, refusing to take the new oaths of allegiance, as well as supremacy, 
 
I 
 
 BRITISH PARLIAMENT. 81 
 
 upon tender by the supreme magistrate, are subject to the penalties of a 
 proemumre. Sergeants, councillors, proctors, attorneys, and all officers 
 of courts, practising without having taken the oaths of allegiance and 
 supremacy, and without having subscribed the declaration against popery, 
 are guilty of a prccmiuiire, whether the oaths be tendered or not. To as- 
 sert, maliciously and directly, by preaching, teaching, or advisedly speak- 
 ing, that the male descendants of James II. or any person other than ac- 
 cording to the acts of settlement and union, hath any right to the throne 
 of these kingdoms, or that the king cannot make laws to limit the descent 
 of the crown ; such preaching, teaching, or advisedly speaking, is a prtu- 
 munire^ and writing, printing, or publishing the same doctrines amounted 
 to high treason. If the peers of Scotland, when assembled to elect their 
 sixteen representatives in the British parliament, shall presume to treat of 
 any other matter save only the election, they incur the penalties of a prce- 
 mnnire. All unwarrantable undertakings by unlawful subscriptions, then 
 commonly known by the name of bubbles, subject the parties to the pen- 
 alties of a prcemunire. 
 
 All such as knowingly and wilfully solemnize, assist, or are present at 
 any forbidden marriage of such of the descendants of the body of George 
 II. as are, by that act, prohibited from contracting matrimony without 
 consent of the crown, incur the penalties of the statute of prcemunire. 
 
 Its punishment may be gathered from the foregoing statutes, which are 
 thus shortly summed up by Sir E. Coke ; " that from the conviction the de- 
 fendant shall be out of the king's protection, and his lands and tenements, 
 goods and chattels forfeited to the king, and that his body shall remain in 
 prison at the kings jjleasure, or during life ; which is the same thing, as 
 the king by his prerogative may at any time, remit the whole or any part 
 of the punishment, except in the case of transgressing the statute of Habeas 
 Corpus. Such delinquent, though protected as part of the public from 
 public wrongs, cannot bring an action for any private injury, how atro- 
 cious soever, being so far out of the protection of the law, that it will not 
 guard his civil rights, nor remedy any grievance, which he as an individual 
 may suffer. And no man, knowing him to be guilty, can with safety give 
 him comfort, aid, or relief." 
 
 BRITISH PARLIAMENT. 
 
 In selecting and abridging the account of the British and Scottish par- 
 liaments, I have given not only the spirit of the authors quoted at the con- 
 clusion of the articles, but their very words, and have endeavoured to 
 
82 BRITISH PARLIAMENT. 
 
 observe the utmost impartiality. Although the Bills for the Reform of Par- 
 liament have given the British empire, on whose widely extended domin- 
 ions the sun never sets, a new constitution, yet as many parts of the old 
 fabric still remain, I have^given, in the following work, an account of those 
 institutions which have been the means, under God, of rendering this em- 
 pire happy and glorious at home, and the envy and admiration of the 
 world abroad. 
 
 This roj'al throne of kings, this scepter'd isle, 
 
 This earth of majesty, tliis seat of Mars, 
 
 This other Eden, demi-paradise ; 
 
 This fortress, built by Nature for herself. 
 
 Against infection, and the hand of war ; 
 
 This happy breed of men, this little world ; 
 
 This precious stone set in the silver sea, 
 
 Which serves it in the office of a wall, 
 
 Or as a moat defensive of a house, 
 
 Against the enemy of less happier lands ; 
 
 This blessed plot, this earth, this realm, this Britain, 
 
 This nurse, this teeming womb of rojal kings, 
 
 Fear'd by their breed, and famous for their birth. 
 
 Richard 11. Act II. Scene 1 . 
 
 In marking the origin of parliaments, I have chiefly followed the 
 authority of Judge Blackstone ; but it may be remarked, that much dif- 
 ference of opinion exists among lawyers of the greatest reputation upon this 
 interesting subject ; but however much constitutional writers differ from 
 each other in their opinions respecting the institutions of our Saxon ances- 
 tors, (whose tenacious adherence to ancient customs and landmarks is 
 proverbial,) they all agree in affirming, that there was no such thing as a 
 house of commons in existence previous to the year 1265, which was the 
 49th of Henry III. j for the Saxon Witenagemotte cannot be considered 
 as a parliament in the sense in which we understand that word. Henry 
 III. was the first English sovereign who summoned by writ, knights and 
 burgesses, as representatives of their counties and boroughs, to serve him in 
 parliament, a service which was then, and for may ages afterwards, con- 
 sidered as a grievous burden, a heavy expense, and a great hardship ; in- 
 deed it frequently happened that the boroughs were obliged to allow their 
 representatives a sum of money to defray the expenses of their attendance in 
 parliament. At its first institution, parliament met in one house or cham- 
 ber, the three estates, viz. the Prelates, the lay Peers, and the Commons, 
 sat and voted together as one body ; but this proving inconvenient, and the 
 commons requiring frequently to retire for consultation, about such affairs 
 as more immediately affected their own estate, their final separation and 
 meeting in another house by themselves, was effected about the year 1295, 
 in the reign of Edward I. From that period to the grand rebellion, their 
 importance gradually increased, and since the Revolution of 1688, the 
 
BRITISH PARLIAMENT. 
 
 83 
 
 crown has from time to time conceded to the house of Commons that 
 power and authority which constitutes its present greatness. Tlie Scot- 
 tish parliaments were constituted similarly to the English ; the last parlia- 
 ment which sat in Scotland, was that which enacted the incorporating union 
 between the two kingdoms, and before the Rerolution of 1688 ; it also 
 contained three estates^ viz. the spiritual and lay peers, and the commons, 
 who all sat and voted together in one house ; but at the Revolution, the 
 convention parliament, which met at Edinburgh in April, 1689, deprived 
 the bishops of their seats, and there remained only two estates in that con- 
 ventio?i which offered the crown of Scotland to the prince and princess of 
 Orange, and of that parliament which passed the act of union, and thereby 
 voted their own annihilation. 
 
 The following observations are extracted from Professor Park's " Lec- 
 tures on the Theory and Practice of the Constitution," delivered at King's 
 College, London, in the commencement term. 
 
 " The accredited theory of the Constitution assigns the business of legis- 
 lation to imrliament indiscriminately ; it does not confer the right of intro- 
 ducing bills of projects of law, nor yet subjects of debate, upon any parti- 
 cular person or persons ; and even in point of practice, bills may be intro- 
 duced, and motions made, by any individual member of the legislature wlio 
 chooses J that is to say, by any one of six hundred and fifty-eight indivi- 
 duals in the house of Commons, and four hundred and eight in the house 
 of Lords ; and such bills are precisely of the same validity, if passed, as 
 bills introduced by the executive government, or king's ministers. We 
 have only to apply this theory to the business of the administrative govern- 
 ment^ and to suppose that government carried on by the undisturbed 
 means, which this theory of the constitution has pointed out, — legislation 
 casually and promiscuously originated, — to see with one glance, that a 
 greater absurdity never entered the heart of man. Administrative govern- 
 ment has become the most profound and the most complicated of all sci- 
 ences. From the extent and intricacy of its materials, it mates and masters 
 the most powerful intellects ; while from that very extent, and the inability 
 of the human mind to grasp all its relations and dependencies, or to con- 
 template more than a portion of the whole field, that portion with which 
 the particular observation or experience of each has made him most con- 
 versant, it furnishes room for a more endless diversity and gradation of 
 opinion, than is to be found in any other science founded upon induction. 
 Now in all sciences, in medicine, in mathematics, in chemistry, in astro 
 nomy, in law, we find not only the most various measures of capacity and 
 power, among the professors, but we find in each, a very few minds capable 
 of penetrating immeasurable distances beyond even the range of the highest 
 order of ordinary minds, and upon whom, in each of those sciences, an as- 
 cendency or superiority devolves, which is strictly consonant to the nature 
 
84 BRITISH PARLIAMENT. 
 
 oC things, and wliicli is only an extension of the same principle which gives 
 ordinary intelligence and information an ascendency or superiority over 
 dullness and ignorance. One man can do, another man cannot do, and 
 that is the whole matter. 
 
 " We find that no sooner is an administration formed, than it immedi- 
 ately takes upon itself not only what is properly called the executive govern- 
 ment, but another and much more important function, not recognized by 
 the theory of the constitution, — the management, control, and direction of 
 the whole mass of political legislation, according to its own views of poli- 
 tical science and civil economy ; that although some scattered portions of 
 legislation are gladly left by this overburdened administration to private in- 
 dividuals, who arc desirous, either through vanity or public spirit, of sig- 
 nalizing themselves as legislators, yet that even this is done, as it were, by 
 the connivance of the administration, or government, as it is emphatically 
 called ; and that it follows as a necessary consequence, from government 
 being always in the majority in the house of Commons, that no private in- 
 dividual could carry any measure through parliament which government 
 should see reasons to oppose, — so that a single intimation of such intention, 
 at once compels the private legislator to drop or withdraw his measure ; 
 that even this connivance at private legislation is not considered constitu- 
 tional or becoming, when the measure is one of political importance, as it 
 is deemed not merely the right but the didi/ of government, to take upon 
 itself the responsibility of introducing sucli measures into parliament ; and 
 government has ever been severely reprimanded by leaders in opposition for 
 abandoning that duty to others : finally, that as soon as from any circum- 
 stance whatever, government or the administration shall be deprived of 
 the power of so managing, controlling, and directing the course of political 
 legislation, by a change of the majority into the minority, or find sufldcient 
 reason to apprehend that they shall be deprived of that power, they do, 
 according to the actual course of the constitution, resign office, upon the 
 express ground that they can no longer carry on the government advan- 
 tageously to the country ; and that, so far from doing that as an act of 
 offended greatness, it would be esteemed pofitically dishonourable and im- 
 proper if they were to retain office, after the support and adherence of a 
 majority in the house of Commons should have been unequivocally with- 
 drawn from them. 
 
 " A person who is returned wholly by a particular class of constituents, 
 becomes (so far as there is any meaning in direct representation,) a re- 
 presentative of the interest of that class ; and if, as must almost universally 
 happen, the interest of that class, although they themselves be locally con- 
 fined to a particular spot, is identical with the interests of the same class 
 all over the kingdom, then the person does indirectly represent the interest 
 of the whole class j and the measure of 'direct representation of his own con- 
 
BRITISH PARLIAMENT. 85 
 
 stituency will be the measure of his indirect representation of that class. 
 We might thus create a fair representation of the whole community, by se- 
 lecting single spots or districts, in each of which some one class of the com- 
 munity is congregated, until we had fairly exhausted every class, and 
 authorizing each of the districts to return a certain number of members. 
 
 I But when a person is returned for a district suflSciently large, and in which 
 the elective franchise is sufficiently extensive to comprehend all the varieties 
 'of classes within its constituency, it becomes a district, not a class which 
 is represented, (unless, indeed, any particular class have an overpowering 
 predominance in that district,) and the only direct or indirect represen- 
 tation which appears to exist, is that of local interests, such as the affairs 
 of rail-roads, navigations, and the particular trades which predominate 
 within the district. So far as these interests are confined to that district, 
 there will be direct representation only ; so far as they extend to other dis- 
 tricts, there will be indirect representation also. I have said above, as far 
 as there is any meaning in direct representation, for I have great doubts 
 whether the modern notion of direct representation, in this country of indis- 
 tinct ideas, will stand scrutiny ; it is curious to see how men's minds work in 
 thfe dark. ' Is not representation a humbug V said a very keen-sighted, but 
 not a very scientific friend to me lately. ' Certainly', said I, ' in the sense in 
 which it is now used: take for example the members for Westminster. 
 What do they represent ? is it opinions ? whose opinions ? What are the col- 
 lective opinions of Westminster ? is it interests ? whose interests ? What 
 are the collective interests of St James's Square and Tothill Fields ? and 
 yet we may find voters from both for the sitting members. Which do 
 they represent ?' — ' O,' says one, ' they represent the majority !' what 
 majority? is it the majority on the poll? there is no majority, but the ex- 
 cess. There is no majority so long as the opposed candidates are equal. 
 Who are the majority ? those who come first, those who come in the 
 middle, or those who come last ?' — ' No,' says another, ' the majority of 
 their own voters.' How, I ask, is that majority ascertained, and where 
 is the identity of their opinions and interests ?" 
 
 The political party known by the name of whigs, were excluded from 
 office during the reigns of the third and fourth Georges, but soon after 
 the accession of William the IV., our present most gracious sovereign, 
 that party obtained possession of power, and one of their first measures 
 was to introduce bills into parliament, for altering the mode of electing 
 the members of the house of Commons, disfranchising some boroughs, 
 and enfranchising others, increasing the number of the county and bo- 
 rough electors, and especially giving to Scotland an entirely new consti- 
 tuency. Heretofore in that kingdom, the burgh members were elected by 
 the respective town councils, but the reform bill for Scotland wholly 
 disfranchises all the town councils, and confers the elective franchise in 
 
86 BRITISH PARLIAMENT. 
 
 the burghs, on every male of full age not legally incapacitated, who pays 
 a rent of £10, and has qualified by paying the assessed taxes, on or be- 
 fore the 20th of August of this year, and of July in every succeeding 
 year. 
 
 Without claiming originality, my desire has been to give the greatest 
 mass of information in the smallest possible compass : And as the Reform 
 Bills have now become law, I devoutly hope, that the empire may be as 
 prosperous under their operation, as it was under our old " time-Iionoured " 
 constitution. 
 
 Blackstone says, that the original or first institution of parliament is one 
 of those matters which lie so far hidden in the obscure ages of antiquity, 
 that to trace it out is equally difficult and uncertain. The word parlia- 
 ment itself is comparatively of modern date, derived from the French, sig- 
 nifying merely an assembly that met and conferred together. It was first 
 applied to general assemblies of the estates of France, under Lewis VII. 
 about the middle of the twelfth century. 
 
 It is certain, that, long previous to the introduction of the Norman lan- 
 guage into England, all matters of public importance were debated and settled 
 in great councils of the realm. And this general council has been estab- 
 lished under several different names from time immemorial ; such as mychil 
 sijnoth^ or great council, mychil gemote^ or great'meeting, but more gene- 
 rally witena gemote^ or the meeting of wise men, so that it would appear 
 parliaments, or great national councils, were coeval with the kingdom itself. 
 How tliese parliaments were summoned is matter of dispute, and par- 
 ticularly, if the commons were summoned at all : it is generally agreed that 
 the main constitution of parliament which now exists, was not marked out 
 before the year 1215, being the year in which King John granted to 
 England the Great Charter, and in which provision is first made for ad- 
 mitting the commons of England to a share of the legislation. In Mag- 
 na Charta^ king John promises, for himself and his heirs and succes. 
 sors, to summon all archbishops, bishops, abbots, earls, and greater ba- 
 rons, personally : and all other tenants in chief under the crown by the 
 sheriflTs and bailiflTs : to meet at a certain place, with forty days' notice, to as- 
 sess aids and scutages, when necessary. There was no such thing in exis- 
 tence as a house of Commons, till the year 1266, being the 49th of Henry 
 III., wlien writs, which are still extant, were, for the first time, issued 
 by the crown to summon knights, citizens, and burgesses, to attend and 
 give their advice to the king in parliament. 
 
 Parhament is summoned by the king's writ, regularly issued out of 
 chancery, by advice of the privy council, at least forty days before it 
 commences its sittings. It belongs exclusively to the royal prerogative 
 to summon parliaments : no parliament can be convened by its own au- 
 thority, or by any other authority than that of the king alone, for the 
 
r 
 
 BRITISH PARLIAMENT. 87 
 
 crown (under God) is the source and fountain of all power within the 
 realm. If the same persons who compose the parliament, should meet 
 as a parliament without the king's writ, they would be guilty of high 
 treason, and all their enactments as a parliament would not only be null 
 and void, but treasonable by the law. In all cases of conquest or suc- 
 cessful rebellion, as in the rival houses of York and Lancaster, the law 
 submitted to the powerful ; and whichever of these houses won the field, 
 never missed a parliament to confirm their title : even Cromwell found a 
 parliament to support his usurpation. In all the concessions of the 
 crown to parliament, it has ever preserved to itself this prerogative, and 
 for very good reasons. In the^r*^ place. For its own preservation, be- 
 cause parliament derives its whole authority from the crown, and the law 
 of England has absolutely barred all coercion on the crown, as whoever 
 had the power of coercion would be superior to the crown, which would 
 destroy the very foundation of the government ; and the power that is 
 derived from the crown cannot be on a level, far less superior, to it. Both 
 houses of parliament call the king their sovereign lord, and style them- 
 selves his most dutiful and obedient subjects and servants, and swear alle- 
 giance to him ; And, secondly^ Because, supposing parliament had a right 
 to meet without being called by the king, it is impossible to imagine that 
 all the members, and each of the houses would unanimously agree upon 
 the proper time and place of meeting ; and, if one half of the members 
 should meet and the other half absent themselves, who shall determine 
 which is really the parliament, the part that assembles, or that which stays 
 away } But the crown, by preserving to itself the prerogative of calling 
 parliaments together, prevents confusions and revolutions, which would 
 set every private person on the throne, and introduce an anarchy, which 
 would admit of neither order nor remedy. 
 
 But although the parliament cannot meet without the king's writ, yet, 
 at the Revolution in 1688, a convention of the preceding parliament as- 
 sembled in London, which was afterwards, by the authority of the crown, 
 turned into a parliament. The throne had become vacant, before the con- 
 vention met without any royal summons. They did not assemble without 
 writ, and make the throne vacant, but the throne being previously vacant 
 by King James II.'s abdication, they assembled without any writ, as they 
 must have done, if they assembled at all. Had the throne been full, their 
 meeting would not merely have been irregular, it would have been high 
 treason ; but, as the king had abdicated, such meeting became absolutely 
 necessary. In this convention, the three estates of the realm declared the 
 throne to be vacant, and recognised the succession to be in Mary, the eld- 
 est daughter of the late king, who succeeded to the throne, according to 
 the order of the descent of the crown of England, with whom the Prince of 
 Orange, her husband, was associated in the government. There was thus 
 
88 BRITISH PARLIAMENT. 
 
 no change in the constitution, the throne being filled by hereditary succes- 
 sion ; in proof of this, it may be remarked, that the entail of the crown 
 went to the heirs of Queen Mary, and not to those of the Prince of 
 Orange, which shows that his administering the government, was no in- 
 fraction on the hereditary descent of the crown. The first statute of William 
 and Mary explains the grounds of that revolution, and of the settlement 
 then made, — " And whereas the late King James the Second, having 
 abdicated the government, and the throne being thereby vacant," &c. 
 This statute also settles the point of the three estates of which parliament 
 is composed, which, meaning the late convention which met without any 
 authority of the king or queen, says, " Whereas the lords spiritual and 
 temporal, and commons, assembled at Westminster, representing all the 
 estates of the people of this realm," &c. therefore, the king is not an es- 
 tate of parliament, for here were three estates without him. 
 
 The Revolution parliament repealed several former laws, but they left 
 untouched, and in their full force, such statutes as declared the supremacy 
 of the crown, and condemned any coercion upon it. Such as 16th Rich. 
 II. which declares, " That the crown of England hath been so free at all 
 times, that it hath been in no earthly subjection, but immediately subject 
 to God, in all things touching the regality of the same crown, and to none 
 other." The 24th Henry VIII. which recognises the king as the " one 
 supreme head and king, unto whom a body politic, compact of all sorts 
 and degrees of people, divided in terms, and by names of spirituality and 
 temporality, been bounden and owen to bear, next to God, a natural and 
 Iiumble obedience. He being also instituted and furnished, by the good- 
 ness and sufferance of Almighty God, with plenary whole and entire power, 
 pre-eminence, authority, prerogative, and jurisdiction, to render and yield 
 justice and final determination to all manner of folks, resiants, or sub- 
 jects, within this his realm, in all causes, matters, debates, and conten- 
 tions," &c. The 12th Car. II. wherein it is declared : — " That by the 
 undoubted and fundamental laws of this kingdom, neither the peers of this 
 realm, nor the commons, nor both together, in parliament or out of par- 
 liament, nor the people, collectively or representatively, nor any other per- 
 sons whatsoever, ever had, have, or ought to have, any coercive power 
 over the persons of the kings of this realm." The 13th Car. II. which 
 makes it a prcemunirey either by " writing, printing, preaching, or other 
 speaking, to declare or affirm, that both houses of parliament, or either 
 house of parliament, have or hath a legislative power without the king ;" 
 and it also declares the power of the sword to be wholly in the king j 
 " and that both or either of the houses of parliament cannot, nor ought to 
 pretend to the same, nor can, nor lawfully may raise or levy any war, 
 offensive or defensive, against his majesty, his heirs, or lawful successors ; 
 and yet the contrary thereof hath of late years been practised, almost to 
 
BRITISH PAULIAMENT. 89 
 
 the ruin and destruction of this kingdom, proceeding from the wilful mis- 
 take of the supreme and lawful authority." All these laws, and many 
 more, were left unrepealed at the Revolution, which shows that it was in 
 the person, and not the government, that our revolution proceeded. 
 
 Blackstone, in his Commentaries, proceeds to say, that the constituent 
 parts of a parliament are the next objects of inquiry. " And these," says 
 he, " are the King's Majesty sitting there in his royal political capacity, 
 and the three estates of the realm ; the Lords Spiritual, the Lords Tem- 
 poral, (who sit together with the king in one house,) and the Commons, 
 who sit by themselves in another house. And the King, and these three 
 estates together, form the great corporation or body politic of the king- 
 dom, of which the King is said to be caput, principium, etjinis. For, on 
 their coming together, the King meets them, either in person or by repre- 
 sentation, without which there can be no beginning of a parliament ; and 
 he also has alone the power of dissolving them "* 
 
 The same high authority goes on to say, that the legislature, therefore, 
 cannot abridge the executive power of any rights which it still retains, 
 without its own consent, since the law must perpetually stand as it now 
 does, unless all the powers will agree to alter it. And herein, indeed, 
 consists the true excellence of the English government, that all its parts 
 form a mutual check on each other. In the legislature, the people are a 
 check upon the nobility, and the nobility again act as a check upon the 
 people, by the mutual privilege of rejecting what the other has resolved, 
 while the King is a check upon both, and which preserves the executive 
 power from encroachments. And this very executive power is again 
 checked and kept within due bounds by the two houses, through the privi- 
 lege which has been conceded to them by the crown, of inquiring into, 
 impeaching, and punishing the conduct of the King's evil and pernicious 
 councillors. The King can constitutionally do no wrong, and were par- 
 liament to pass censures on him, it would destroy his constitutional inde- 
 pendence, render him inferior to his parliament, and destroy his supremacy 
 entirely. Thus every branch of our civil polity supports and is supported, 
 regulates and is regulated, by the rest ; — for the three estates, naturally 
 drawing in different directions, of opposite interests, and the prerogative 
 of the crown in another still different from the two houses, they mutually 
 keep each other from exceeding their proper limits, while the whole is 
 prevented from separation, and are artificially connected together by the 
 mixed nature of the crown, which is the caput, priticipium, et Jims, the 
 beginning, the middle, and the end of the legislature, and the sole executive 
 power. Like three distinct powers in mechanics^ they jointly impel tlie 
 machine of government in a direction different from that which either, if 
 
 • Blackstone, B. i. c. 2. 
 M 
 
90 BRITISH PARLIAMENT. 
 
 acting by itself, would have done ; and, at same time, in a direction par- 
 taking of each, and formed out of all, a direction which constitutes the 
 true line of liberty and happiness of the community. 
 
 The first estate of parliament is the Spiritual Lords, who consist of two 
 archbishops and twenty-four bishops for England, and, since the Union 
 with Ireland, four Spiritual Lords of that kingdom sit by rotation of ses- 
 sions in the House of Lords, making the number for the United Kingdom 
 thirty. At the dissolution of the monasteries by Henry VIII., the first es- 
 tate, besides the bishops, consisted of twenty -six mitred abbots and two 
 priors, and were then, in point of numbers, equal to the Temporal Lords. 
 The bishops hold certain ancient baronies under the King. But, though 
 these Lords Spiritual be, in the eye of the law, a distinct estate from the 
 Lords Temporal, and are so distinguished in our acts of parliament, yet, 
 in practice, they are usually blended together under the one name of the 
 Lords ; they intermix in their votes, and the majority of such intermixture 
 joins both estates. 
 
 Sir Edward Coke says,* that a bishop is regularly the King's im- 
 mediate oflEicer of justice in causes ecclesiastical; all the (temporalities of 
 the) bishoprics in England are of the King's foundation, and the King is 
 patron of them all j at first they Avere donative, as appears from all law- 
 books, acts of parliament, and history, and that was per traditionem ainiidi 
 et pastoralis baculi, i. e. by the crosier. King Henry I. being persuaded 
 by the bishop of Rome, refused to consent to their being elected by their 
 chapters ; but King John, by royal charter, acknowledging the custom 
 and right of the crown in former times, yet granted, de communi consensu 
 haronum, that they should be elective, which was afterwards confirmed by 
 divers acts of Parliament. Afterwards, the manner and order, as well of 
 the election of archbishops and bishops, as of the confirmation of their 
 election and consecration, is enacted and expressed in the 25th Hen. VIII., 
 which is still unrepealed, but remains in full force and effect. 
 
 The second estate of parliament is the Temporal Nobility, which con- 
 sists of all the peers of the realm, of whatever title of nobility. All the 
 ancient peers sit by descent, because their titles are hereditary. The new 
 made peers take their seats from the date of their creation, and the Scottish 
 peers, since the union with that ancient kingdom, sit as representatives of 
 the whole body of the Scottish nobility, and are elected for each new par- 
 liament. 
 
 The distinction of rank and honour is necessary in every well governed 
 state ; as a reward for eminent public services in a manner the most desir- 
 able to individuals, and yet without any burden to the community ; excit- 
 ing an ambitious yet laudable, arduous, and generous emulation in every 
 
 • Lib. ii. c. H, sect. 201, p. i^\. 
 
BRITISH PARLIAMENT. 91 
 
 class of the people. However dangerous these generous emotions might 
 be in a republic, they will certainly be attended with the happiest effects under 
 a free monarchy, when, without destroying its existence, or disturbing the 
 public peace, guilty ambition will be continually restrained by the superior 
 power, the sovereign, from which all honour is derived. A desire for ad- 
 vancement, when rationally diffused, gives life and vigour to the community, 
 it sets all the wheels of government in motion, which, under a wise and 
 patriotic sovereign, may be most beneficially directed : and, in consequence, 
 every individual may be made subservient to the good of the public, while 
 he exclusively seeks only to promote liis own private views. A body of 
 nobility is also more peculiarly necessary in our mixed and compound con- 
 stitution, in order to support both the rights of the crown and the people, 
 by forming a barrier to witlistand the encroachments of each. It creates 
 and preserves that gradual scale of dignity which proceeds from the pea- 
 sant to the prince ; rising like a pyramid from the broad foundation of the 
 people, and diminishing to a point as it rises, the sovereign being its apex. 
 The nobility being the pillars raised up from among the people, more im- 
 mediately to support the throne. 
 
 The third estate is the Commons, who sit in a house by themselves, 
 which is frequently called the Lower House, in contradistinction to the 
 House of Lords, or the Upper House. The old constitution of this house 
 is, that the counties are to be represented by knights, elected by the pro- 
 prietors of lands ; and the cities and boroughs to be represented by ci- 
 tizens and burgesses, chosen by the mercantile part, or supposed trading 
 interest of the nation. In the year 1832, a bill was passed, which great- 
 ly extended the right of suffrage, and altered in a small degree the number 
 of representatives for each of the three kingdoms. This is commonly 
 called the Reform Bill, and an abstract of it will be found in another 
 part of the volume. The number of representatives in the British 
 House of Commons formerly was 668, of whom 513 were for Eng- 
 land and Wales, 45 for Scotland, and 100 for Ireland. Every member 
 says Blackstone, though chosen by one particular district, when elected 
 and returned, serves for the whole realm. For the end of his coming 
 thither is not particular, but general, not barely to advantage his constitu- 
 ents, but the commonwealth, " to advise his Majesty," (as appears from 
 the writ of summons,) " in the great council of the nation, touching cer- 
 tain difficult and urgent affairs concerning the King, and defence both of 
 the kingdom and church of England." And, therefore, he is not bound, 
 like a deputy in the United Provinces, or the Congress of North America, 
 to consult with, or take the advice of, his constituents upon any particular 
 point, unless he himself thinks it proper and prudent so to do. 
 
 The house of Commons only gradually attained to its present impor- 
 tance ; it was not till the reign of James I. that the universities enjoyed 
 
92 BRITISH PARLIAMENT. 
 
 the permanent privilege of being represented there. Indeed, so little were 
 the advantages of the Lower House of Parliament 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 was then attached. At that time, 
 it was usual for the members to give sureties for their attendance before 
 the king and parliament, their expenses being respectively borne by their 
 constituents. But the weight and influence of the house of Commons in- 
 creased from time to time, till it arrived at its present rank and authority 
 in the legislature. 
 
 These, says Blackstone, page 160, are the constituent parts of a parlia- 
 ment, the King, who is tlie caput, jjrincipium, etjiids, tlie Lords Spiritual 
 and Temporal, and the Commons, — parts, of which each is so necessary, that 
 the consent of all is required to make any new law that shall be binding upon 
 the subject Whatever is enacted for law by one or by two only of these, is 
 no statute, and no regard is due to it, unless in matters relating to the privi- 
 leges of either house. And at the restoration of Cliarles II., when the 
 constitution rose from the ruins into which Cromwell had crushed it, it 
 was particularly enacted, 13th Car. II. c. 1, " 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 sliall incur all 
 the penalties of a praemunire." 
 
 Our monarchy is said to be a limited one ; and, therefore, for the bet- 
 ter understanding of this common expression, a term which is of daily oc- 
 currence, it may not be unnecessary to say a few words on the subject of 
 limitation. There are limitations of concession and of coercion ; both are 
 always the act of a superior to inferiors. Thus the Almighty was pleased 
 to limit himself, when he made covenants with, and granted conditions to 
 mankind, and is obliged by his veracity to perform them. Fathers may 
 also limit themselves to their children, and kings may limit themselves to 
 their subjects, by granting them certain laws and privileges, and giving 
 them his solemn oath to observe and keep them. Laws were made by 
 kings, therefore kings must have been in existence before the laws j no 
 law can be produced that made tlie first king in England. We have been 
 governed by kings as far back as history can carry us, and all the laws of 
 England were made by kings, by the advice of parliament. Parliament 
 recognises our kings, as particularly specified in the act 1st Eliz. and 1st 
 James L wherein parliament acknowledged the prior right of these sove- 
 reigns from proximity of blood, but made no pretence of conferring the 
 crown as at the disposal of parliament, but acknowledged their right and 
 title to be from God, *' and thereunto we most humbly and faithfully do 
 submit and oblige ourselves, our heirs and posterity for ever, until the 
 last drop of our blood be spent." 
 
I 
 
 BRITISH PARLIAMENT. 93 
 
 Magna Charta, which begins the statute book, is wholly an act of con- 
 cession on the part of King John, and granted, as it so expresses, entirely 
 of his free will. There was no house of Commons till cifter the concession 
 of the great charter, when, as before mentioned, Henry III. first summon- 
 ed the commons to aid the crown with their advice, when the style of 
 enactments was — " Be it enacted by the king," or, " our sovereign lord 
 the king hath ordained, by the advice of the lords, and the humble petition 
 of the commons." At that time, it was the privilege of the lords to ad- 
 vise, but the commons petitioned ; the prerogative of enacting was wholly 
 in the crown. By subsequent acts of concession, the king has limited his 
 prerogative not to make laws without the advice and consent of the three 
 estates of parliament, yet he has not given up any of his prerogative to 
 them, for he alone can make an act of parliament to be law ; not by way 
 of a negative voice, for all the negatives in the world will never make a 
 positive. A negative is only the saying this shall not be law. But the 
 king's saying, this act shall be a law, and putting his name to it, makes it 
 law. It is the king alone who can say, " Le roy le veut^'' the king wills 
 this to be a law, and this makes it law. The present style of acts of 
 parliament is, ^*' Be it enacted by the King, with the advice of the Lords Spi- 
 ritual and Temporal, and Commons, and by the authority of the same." 
 Here the power of enacting rests wholly in the king, the power of advising is 
 in the three estates j to advise and consent is one thing, to enact is another j 
 " by autliority of the same," is the king's authority, who enacts, and that 
 of the lords and commons, who advise. " In the multitude of councillors 
 
 t there is wisdom." 
 The king of Great Britain, therefore, is the greatest potentate on 
 «»arth, and under him, and deriving their being and authority from him, 
 the parliament of England is the most august and powerful national as- 
 sembly in the whole world. The power and jurisdiction of parliament, 
 says Sir Edward Coke, is so transcendent and absolute, that it cannot be con- 
 fined either for causes or persons within any bounds. It has authority in 
 making, confirming, enlarging, restraining, abrogating, repealing, reviving, 
 and expounding of laws, concerning matters of all possible denominations? 
 ecclesiastical or temporal, civil, military, maritime, or criminal. The king 
 in this place is incontrollable, this being the place where that absolute des- 
 potic power, which must, in all governments, reside somewhere, is en- 
 trusted by the constitution of these kingdoms. All mischiefs and griev- 
 ances, operations, and remedies, that transcend the ordinary course of the 
 laws, are within the reach of this extraordinary tribunal. It can regulate 
 and new-model the succession to the crown, as was done in the reign of 
 Henry VIII. and his three children and successors. It can change and 
 create afresh even the constitution of the kingdom, and of parliaments 
 themselves, as was done by the Act of Union, and the several statutes for 
 
94) BRITISH PARLIAMENT. 
 
 triennial and septennial elections, and as has been recently done by the 
 passing the Bills for the reform of parliament. In short, it can do every 
 thing that is not naturally impossible ; and, therefore, some have not 
 scrupled to call its power, by a figure certainly too bold — the omnipotence 
 of parliament. This figure of speech applies to the king alone in the 
 exercise of his prerogative, and it is true that what the king and parlia- 
 ment doth, no authority on earth can undo. So that, continues Sir E. 
 Coke, it is a matter most essential to the liberties of this kingdom, that 
 such members be elected for this important trust, as are most eminent for 
 their probity, their fortitude, and their knowledge, for it was a known apo- 
 thegm of the great lord treasurer Burleigh, "that England could never 
 be ruined but by a parliament j" and, as Sir Matthew Hale observes, this 
 being the highest and greatest court, over which none other can have ju- 
 risdiction in the kingdom, if by any means a misgovernment should any 
 ways fall upon it, the subjects of this kingdom are left without all manner 
 of remedy. 
 
 In order to prevent the mischiefs that might arise by placing such ex- 
 tensive privileges in hands, that are either incapable or improper for its 
 management, it is provided by the custom and law of parliament, that no 
 member shall sit or vote in either house before he is twenty -one years of 
 age. And it is enacted by statute 7th Jac. I. c. 6, that no member be 
 permitted to enter into the house of Commons, till after he has taken the 
 oath of allegiance before the Lord Steward, or his deputy ; and by statute 
 the 30th Car. II. and 1st Geo. I., bo member shall sit or vote in either 
 house, till he shall have taken, in the presence of the house, the oaths of 
 allegiance, supremacy, and abjuration, and also subscribed and repeated 
 the declaration against transubstantiation, invocation of saints, and the 
 sacrifice of the mass. The declarations against these three articles, which 
 excluded the members of the Latin church from both houses, and also 
 the Test Act, was repealed in the year 1829, as preliminary steps towards 
 a "breaking in upon the Constitution ;" and by act of parliament passed 
 for that purpose, Roman Catholic gentlemen are now eligible to sit in par- 
 liament, and to hold offices in the state, with the exception of the offices 
 of Lord Chancellor of England, and Ireland, and the Lord Lieutenant of 
 the latter kingdom, which three offices must always beheld by Protestants. 
 Aliens, unless naturalized, were likewise incapable to serve in parliament, 
 but by the statute 12th and 13th William and Mary, it is declared that 
 no alien is capable of being a member of either house of parliament. 
 
 The whole of tlie law and custom of parliament has its origin from this 
 one maxim, " That whatever matter ariseth concerning either house of 
 parliament ought to be examined, discussed, and adjudged in that house 
 to which it relates, and elsewhere." Hence, for instance, the lords will not 
 suffer the commons to interfere in settling the election of one of the re- 
 
BRITISH PARLIAMENT. 95 
 
 presentative peers of Scotland ; neither will the commons allow the lords to 
 judge of the election of a burgess or knight of the shire ; nor will either 
 house permit the subordinate courts of law to examine or discuss the merits 
 of either case. 
 
 The privileges of parliament are most extensive, and, in fact, perfectly 
 indefinite. They were principally established, in order to protect its mem- 
 bers not only from being molested by their fellow subjects, but also more 
 especially from being oppressed by the power of the crown, and the dig- 
 nity and independence of both houses are in a great measure preserved by 
 keeping their privileges indeji/iite, so that they can draw upon this maga- 
 zine on any emergency. Henry VIII. and Elizabeth were frequently in 
 the habit of swearing at the members of the house of commons, even strik- 
 ing them, imprisoning them during their own pleasure, and suffering 
 no questions to be asked or reason given for such arbitrary proceed- 
 ings. Elizabeth used to say, " That the commons ought not to deal, to 
 judge, or to meddle with her prerogative, or with affairs of state, but to 
 leave all such matters to those whose business it was, and wlio could un- 
 derstand them." In Townshend's collections, page 37, it is related that 
 that redoubtable princess limited the freedom of speech of the commons to 
 the bare voting, yea or nay, commanding them not to meddle with reform- 
 ing or transforming either church or state; and the speaker was ordered 
 " to reject such bills, if offered, until they be viewed and considered of by 
 those whom it is fitter should consider of such things, and can better judge 
 of them." She also so limited the privileges of the members of the house 
 of commons, " that no man's ill-doings or non-performance of duties, 
 should cover or protect him." And in a petition of access to her Majesty, 
 the commons were confined to require such only in " weighty matters," 
 and that, too, only " when her Majesty was at leisure.'^^ But in the reign 
 of Charles the I., when a fanatical spirit of insubordination was prevalent, 
 it was esteemed breach of privilege, and a sufficient cause for a rebellion, 
 when that injured monarch only desired Jw^/fce against five members of the 
 commons' house. Some of the more notorious privileges of the members 
 of either house are, — the privilege of speech, person, their domestics, and 
 of their lands and goods. The privilege of speech was declared by the 
 statute 1st W, and M. to be one of the liberties of the people, " that the 
 freedom of speech, debates, and proceedings in parliament, ought not to 
 be impeached or questioned in any court or place out of parliament." This 
 freedom of speech, as likewise the other privileges of servants, lands, and 
 goods, are particularly demanded of the king in person, by the speaker of 
 the house of commons at the bar of the house of lords, at the opening of 
 every new parliament. This privilege formerly included not only protec- 
 tion fi'om illegal violence, but also from legal arrests and seizures by law 
 process ; and even still, violently to assault a member of eitJier house, or 
 his menial servanjt, is a high contempt of parliament, and punishable with 
 
96 BRITISH PARLIAMENT. 
 
 the utmost severity. No member of either house can be arrested and 
 taken into custody, unless for some indictable offence, without a breach of 
 the privilege of parliament. 
 
 Every peer, by license obtained from the king, may make another lord 
 of parliament his proxy, to vote for him in his absence. " By the orders 
 of the house, no peer can have more than two proxies, nor can proxies 
 vote upon a question of guilty or not guilty." A privilege which a mem- 
 ber of the other house can by no means have, eis he is himself but a proxy 
 for a multitude of other people. Each peer has also a right, by leave of 
 the house, when a vote passes contrary to his sentiments, to enter his dis- 
 sent on the journals of the house, with the reasons for such dissent, which 
 is usually styled his protest All bills, likewise, that may in their conse- 
 quences anywise affect the rights of the peerage, are by the custom of par- 
 liament, to have their first rise and beginning in the house of peers, and to 
 suffer no changes or amendments in the house of commons. 
 
 The law and customs peculiar to the house of commons relate principally 
 to the raising of taxes, and the election of members to serve in parliament. 
 
 First, with regard to taxes, it is the ancient indisputable privilege and 
 right of the house of commons, that all grants of subsidies or parliamen- 
 tary aids begin in their house, and are first bestowed by them, although 
 their grants are ineffectual, to all intents and purposes, until they have the 
 consent of the house of lords and the sovereign. The true reason, arising 
 from the spirit of our constitution, seems to be this, — because the lords, 
 being a permanent hereditary body created at pleasure by the king, are 
 supposed to be more liable to the influence of the crown than the com- 
 mons, who are a temporary elective body, freely nominated by the people. 
 
 Next, with regard to the election of knights, citizens, and burgesses, we 
 may observe, that herein consists the exercise of the democratical part of 
 our constitution ; for in a democracy there can be no exercise of sove- 
 reignty but by suffrage, which is the declaration of the people's will. In 
 all democracies, therefore, it is of the utmost importance to regulate by 
 whom, and in what manner, the suffrages are to be given. In England, 
 the people do not debate in a collective body, but by representation ; and 
 in the choice of representatives, the laws have very strictly guarded against 
 usurpation or abuse by many salutary provisions, which may be reduced 
 to these three points : 1. The qualifications of the electors. 2. The quali- 
 fications of the elected. 3. The proceedings at elections. 
 
 As to the qualifications of the electors : By several statutes it has been 
 enacted, that the knights of the shire shall be chosen of people, whereof 
 every man shall have freehold to the value of forty shillings by the year within 
 the county, which is to be clear of all charges and deductions, except par- 
 liamentary and parochial taxes. The knights of the shire are the repre- 
 sentatives of the landed interest of the kingdom ; their electors must, there- 
 
 I 
 
BRITISH PARLIAMENT. 97 
 
 fore, have estates in lands or tenements within the county represented : 
 These estates must be freehold, that is, for term of life at least ; because, 
 when these statutes were made, beneficial leases for terms of years were 
 not in use, and copyholders were then little better than villeins, absolutely 
 dependent on their lords : This freehold must be of forty shillings annual 
 value ; because that sum would then, with proper industry, furnish all the 
 necessaries of life, and render the freeholder an independent man. The 
 otlier less important qualifications of the electors for counties in England 
 and Wales may be collected from the statutes ; which direct, 2. That no 
 person under twenty-one years of age shall be capable of voting for any 
 member. This extends to members for boroughs as well counties; as 
 does the next also, viz. 3. That no person convicted of perjury, or subor- 
 nation of perjury, shall be capable of voting in any election. 4. That no 
 person shall vote in right of any freehold, granted to him fraudulently, to 
 qualify him to vote, under the penalty of £40. And to guard against 
 frauds, it is further provided, 5. That every voter shall have been in the 
 actual possession or receipt of the profits of his freehold, for his own use, 
 for twelve calendar months before ; except it came to him by descent, mar- 
 riage, marriage- settlement, will, or promotion to a benefice or oflace. 6. 
 That no person sliall vote in respect of an annuity or rent charge, unless 
 registered with the clerk of the peace twelve calendar months before. 7. 
 That in mortgaged or trust-estates, the person in possession, under the 
 above mentioned restrictions, shall have the vote. 8. That only one per- 
 son shall be admitted to vote for any one house or tenement, to prevent 
 the splitting of freeholds, 9. That no estate shall qualify a voter, unless 
 the estate has been assessed to some land-tax, and at least twelve months 
 before the election. 10. That no tenant by copy of court-roll shall be 
 permitted to vote as a freeholder. 
 
 The electors of citizens and burgesses are supposed to be the mercan- 
 tile or trading interest of the kingdom. Such freemen only of any city or 
 borough as claim by birth, marriage, or servitude, shall be entitled to vote 
 therein, unless he has been admitted to bis freedom twelve calendar months 
 before. 
 
 Some of the qualifications of persons to be elected members of the 
 house of Commons depend upon the law and custom of parliament, de- 
 clared by the house of Commons, others upon certain statutes. From 
 which it appears, 1. That they must not be aliens born, or minors. 2. 
 That they must not be any of the twelve judges, because they sit in the 
 House of Lords ; nor of the clergy, for they sit in the convocation ; nor 
 persons attainted of treason or felony, for they are unfit to sit any where. 
 3. That sheriffs of counties, and mayors and bailiffs of boroughs, are not 
 eligible in their respective jurisdictions, as being returning oflScers ; but 
 tliat sheriffs of one county are eligible to be knights of another. 4. That in 
 
 N 
 
98 BRITISH PARLIAMENT. 
 
 strictness, all members ought to have been inhabitants of the places for 
 which they are chosen: But this having been long disregarded, was at 
 length entirely repealed by statute 14th Geo. III. 6. That no persons con- 
 cerned in the management of any duties or taxes created since 1692, ex- 
 cept the commissioners of the treasury, nor any of the officers following, 
 viz. commissioners of prizes, transports, sick and wounded, wine licences, 
 navy and victualling ; secretaries or receivers of prizes ; comptrollers of 
 the army accounts ; agents for regiments ; governors of plantations and 
 their deputies ; officers of Minorca or Gibraltar ; officers of the excise 
 and customs j clerks or deputies in the several offices of the treasury, ex- 
 chequer, army, victualling, admiralty, pay of the army or navy, secre- 
 taries of state, seal, stamps, appeals, wine licences, hackney coaches, hawk- 
 ers and pedlars ; nor any persons that hold any new office under the crown, 
 created since 1705, are capable of being elected or sitting as members. 6. 
 That no person having a pension under the crown during pleasure, or for 
 any term of years, is capable of being elected or sitting. 7. That if any 
 member accepts an office under the crown, except an officer in the army 
 or navy, accepting a new commission, his seat is void, but such member is 
 capable of being re-elected. 8. That all knights of the shire shall be ac- 
 tual knights, or such notable esquires and gentlemen as have estates suffi- 
 cient to be knights, and by no means of the degree of yeomen. This is 
 reduced to a still greater certainty, by ordaining, 9. That every knight of 
 a shire shall have a clear estate of freehold or copyhold to the value of £600 
 per annum, and every citizen and burgess to the value of £300 : except 
 the eldest sons of peers, and of persons qualified to be knights of -shires, 
 and except the members for the two universities ; which somewhat balances 
 the ascendant which the boroughs have gained over the counties, by oblig- 
 ing the trading interest to make choice of landed men ; and of this qualifi- 
 cation the member must make oath, and give in the particulars in writing, 
 at the time of his taking his seat. But subject to these standing restric- 
 tions and qualifications, every subject of this realm is eligible of common 
 right. 
 
 Elections are also regulated by the law of parliament, and several sta- 
 tutes. 
 
 As soon as parliament is summoned, tlie Lord Chancellor (or, if a va- 
 cancy happens during the sitting of parliament, the speaker, by order of 
 the house, and without such order, if a vacancy happens by death, or the 
 member's becoming a peer in the time of a recess for twenty days) sends 
 his warrant to the clerk of the crown in chancery, who thereupon issues 
 out writs to the sheriff of every county, for the election of all the members 
 to serve for that county, and every city and borough therein. Within 
 three days after the receipt of this writ, the sheriff is to send his precept, 
 under his seal, to the proper returning officers of the cities and boroughs, 
 
BRITISH PARLIAMENT. 99 
 
 commanding tliem to elect their members ; and the said returning officers 
 are to proceed to election within eight days from the receipt of the precept, 
 giving four days' notice of the same, and to return the persons chosen, 
 together with the precept, to the sheriff. 
 
 But the sheriffs themselves must proceed to the elections of the knightis 
 of the shire, at the next county court that shall happen after the delivery 
 of the writ. 
 
 And as it is essential to the very well-being of parliament that elections 
 should be absolutely free, therefore, all undue influences upon the electors 
 are illegal, and strongly prohibited. As soon, therefore, as the time and 
 place of election, either in the counties or boroughs, are fixed, all soldiers 
 quartered in the place are to remove, at least one day before the election, 
 and to the distance of two miles or more, and not to return till one day 
 after the poll is ended. Riots, likewise, have been frequently determined 
 to make elections void. By vote also of the House of Commons, to 
 whom alone belongs the power of determining contested elections, no lord of 
 parliament, or lord lieutenant of a county, have any right to interfere in 
 the election of commoners j and, by statute, the lord warden of the Cinque 
 Ports shall not recommend any members there. If any officer of the excise, 
 customs, stamps, or certain other branches of the revenue, presumes to in- 
 termeddle in elections, by persuading any voter, or dissuading him, he for- 
 feits £100, and is disabled from holding any office. 
 
 To prevent the infamous practice of bribery and corruption, it is en- 
 acted, that no candidate shall, after the date (usually called the teste) of 
 the writs, or after the vacancy, give any money or entertainment to his 
 electors, or promise to give any, either to particular persons, or to the 
 place in general, in order to his being elected, on pain of being incapable 
 to serve for that place in parliament. And if any money, gift, office, em- 
 ployment, or reward, be given, or promised to be given, to any voter, at 
 any time, in order to influence him to give or withhold his vote, as well 
 he that takes, as he that ofTers, such bribe, forfeits £500, and is for ever 
 disabled from voting and holding any office in any corporation, unless be- 
 fore conviction, he will discover some other offender of the same kind, and 
 then he is indemnified for his own offence. 
 
 Undue influence being thus (as far as human depravity will admit) 
 guarded against, the election is to be proceeded to on the day appointed, 
 the sheriff, or other returning officer, first taking an oath against bribery, 
 and for the due execution of his office. The candidates likewise, if re- 
 quired, must swear to their qualification, and the electors in counties 
 to theirs, and the electors, both in counties and boroughs, are also com- 
 pellable to take the oath of abjuration, and that against bribery and 
 corruption. And it might not be amiss, if the members elected were 
 bound to take the latter oath as well as the former, which, in all 
 
100 BRITISH PARLIAMENT. 
 
 probability, would be much more effectual than administering it only to 
 the electors. 
 
 The election being closed, the returning officer in boroughs returns his 
 precept to the sheriff, with the persons elected by the majority, and the 
 sheriff returns the whole, together with the writ for the county, and the 
 knights elected thereupon, to the clerk of the crown in chancery, before 
 the day of meeting, if it be a new parliament, or within fourteen days 
 after the election, if it be an occasional vacancy, and this under the penalty 
 of £500. If the sheriff does not return such knights only as are duly 
 elected, he forfeits, by the old statutes of Henry VI. £100, and the re- 
 turning officers in boroughs, for a like false return, £40, and they are 
 besides liable to an action, in which double damages shall be returned, by 
 the later statutes of King William j and any person bribing the returning 
 officer shall forfeit £300. But the members returned by him are sitting 
 members, until the house of commons, upon petition, shall adjudge the 
 return to be false and illegal. The form and manner of proceeding 
 upon such petition are now regulated by several statutes, which direct the 
 method of choosing by lot a select committee of fifteen members, who are 
 sworn well and truly to try the same, and a true judgment to give accord- 
 ing to the evidence. 
 
 The method of making laws is much the same in both houses. For 
 despatch of business, each house of parliament has its own speaker. The 
 Lord Chancellor, or keeper of the King's Great Seal, or any other ap- 
 pointed by the King's commission, is the speaker of the House of Lords, 
 whose office it is to preside there, and manage the formality of business. 
 But if none be so appointed, Blackstone is of opinion, they may elect a 
 speaker. The speaker of the House of Commons is chosen by the house, 
 but must be approved by the King. And in this particular the usage of 
 the two houses differs, that the speaker of the House of Commons cannot 
 give his opinion, or argue any question in the house ; but the speaker of 
 the House of Lords may, if he is a lord of parliament. In each house, 
 the act of majority binds the whole, and this majority is declared by votes 
 openly and publicly given. 
 
 An adjournment is no more than a suspension of the session from one 
 day to another, as the word itself signifies : and this is done by the au- 
 thority of each house separately every day, and sometimes for a fortnight 
 or a month together, as at Christmas or Easter, or upon other particular 
 occasions. But an adjournment of one house is not an adjournment of 
 the other. 
 
 A prorogation is a continuance of the parliament from one session to 
 another, as an adjournment is an interval of the session from day to day. 
 This is done by the royal authority, expressed either by the Lord Chancel- 
 lor in his majesty's presence, or by commission from the crown, and fre- 
 
 n 
 
r 
 
 BRITISH PARLIAMENT. 101 
 
 quently by proclamation. Both houses are necessarily prorogued at the 
 same time, it not being a prorogation of either house, but of the ^hole 
 parliament. The session is never understood to be at an end until a pro- 
 rogation ; though, unless some act be passed or judgment given in parlia- 
 ment, it is in truth no session at all. And if at the time of an actual re- 
 bellion, or imminent danger of invasion, the parliament shall be separated 
 by adjournment or prorogation, the king can call them together by pro- 
 clamation, with fourteen days' notice of the time appointed for their re- 
 assembling. 
 
 A dissolution is the civil death of a parliament, and this may be effected in 
 tliree ways : — 1. By the king's will, expressed either in person or by re- 
 presentation ; for, as tlie king has the sole right of convening the parliament, 
 so also it is a branch of the royal prerogative, that he may (whenever he 
 pleases) prorogue the parliament for a time, or put a final period to its 
 existence. 
 
 2. A parliament is dissolved by the demise of the crown. This disso- 
 lution formerly happened immediately upon the death of tlie reigning so- 
 vereign, for he, being the head of the parliament, (caputy principium, et 
 
 Jinis,) that failing, the whole body was held to be extinct. It was enacted 
 by statutes 7th and 8th W. III. and 8th Anne, that the parliament in be- 
 ing shall continue for six months after the death of any king or queen, 
 unless sooner prorogued or dissolved by the successor. That if the parlia- 
 ment be at the time of the king's death separated by adjournment or pro- 
 rogation, it shall notwithstanding assemble immediately, and take the oaths 
 to the new sovereign : and that if no parliament is then in being, the 
 members of the last parliament shall re-assemble, and be again a parlia- 
 ment. 
 
 3. Lastly, A parliament may be dissolved, or expire by length of time; 
 so that, as our constitution now stands, the parliament must expire, or die 
 a natural death, at the end of every seventh year, if not sooner dissolved 
 by royal prerogative. 
 
 When the king comes down, he sits at the upper end of the house of 
 Lords, on a throne or chair of state ; having a cloth of state over his 
 head, under which none but the Royal Family stand. He is always 
 present, either in person or represented by commission, at the open- 
 ing of a new Parliament, and at the passing of bills ; some kings, 
 but especially queen Anne, have been present at solemn debates, but 
 it is not customary, being a restraint on the freedom of speech abso- 
 lutely necessary in parliamentary proceedings. On the king's right 
 hand, is a seat for the prince of Wales, and on the left, one for the 
 duke of York. On the right of the throne and next the wall, are 
 placed on a bench, the two archbishops ; below these, the bishops of 
 London, Durham, and Winchester ; then upon other benches on the same 
 
102 BRITISH PARLIAMENT. 
 
 side, all the rest of the bishops, according to the priority of their con- 
 secration. 
 
 On the left of the throne, the lord Chancellor, President of the council 
 and lord privy seal, sit ; if they are barons, above all dukes except those 
 of the royal family. The dukes, marquisses, and earls sit on the same side, 
 according to the date of their creations. On the first bench across the 
 house, below the woolsacks sit the viscounts j and upon the next bench, 
 the barons sit all in order. — The Great chamberlain, the Constable, the 
 Marshall, the lord high Admiral, the lord Steward ; and the king's cham- 
 berlain by act of parliament, are entitled to sit above all other of the same 
 degree of nobility with themselves. If the chief secretary be a baron, he 
 sits above all barons not having any of the above offices. The rest of 
 the peers sit according to the order of their creation. 
 
 When the king is present, the lord Chancellor stands behind the throne ; 
 but at other times he sits on the first woolsack, his great seal and mace 
 before hand : he is the speaker of the house of lords. The judges, the 
 king's council at law, and the masters in chancery sit on other woolsacks . 
 these sit in parliament, to give tlieir advice when asked, but not being 
 Peers have no suffrage. Formerly, on the lowermost woolsack were 
 placed the clerk of the crown, and the clerk of parliament ; the foi mer 
 being concerned in all writs of parliament and pardons ; the latter records 
 the transactions of parliament, and keeps its records. This clerk, has also 
 two clerks under him, who used to kneel behind the same woolsack, and 
 write upon it ; but they now sit at a table. Without the bar sits the first 
 gentleman usher, called the " black rod," from a black staff which he 
 carries in his hand, under whom is a yeoman usher that waits at the door 
 within, a crier without, and a sergeant at mace always attending the lord 
 Chancellor. 
 
 When the king is present with the crown on his head, the lords are all 
 uncovered. The judges stand till the king gives them leave to sit. When 
 the king is not present, the lords at their entrance do reverence to the 
 throne ; the judges may then sit, but must not be covered till the lord 
 Chancellor signify to them the leave of the house. The king's council and 
 masters in chancery sit also, but may not be covered at all. 
 
 In the house of Commons, the members sit promiscuously : the speaker s 
 chair is fixed in the middle of the house towards its upper end ; and the 
 clerk with his assistant sits near him at the table, just below the speaker's 
 chair. The commons do not wear robes as the lords do, except the speak- 
 er and clerks, who always in the house wear gowns, and the former a wig, 
 sometimes lawyers also in term time wear their gowns, the four members 
 that used to represent the city of London wore scarlet gowns on the first 
 day of a new parliament, and sat altogether on the right hand of the chair, 
 next the speaker. 
 
BRITISH PARLIAMENT. 103 
 
 Upon the day fixed in the writ of summons, the sovereign comes in 
 person or by commission to open parliament. On the king's arrival at the 
 house of Peers, twenty-one great guns are discharged on the opposite side 
 of the Thames ; which salute is repeated when the king retires. In a 
 room called the prince's chamber, the king puts on his crown and robes, 
 and from thence the lord Chamberlain conducts him into the house of 
 lords : and, taking his seat on the throne, he summons the Commons by 
 the gentleman usher of the black rod. He knocks at the dooir of the 
 house of Commons, which is immediately opened by the sergeant at arms ; 
 at the bar of the house the usher makes a bow, and advancing a few steps, 
 a second, and a third, saying. " Gentlemen of the house of Commons, the 
 king commands this honourable house to attend liim immediately, in the 
 house of peers :'' he then retires backwards, bowing, and withdraws. The 
 Commons forthwith attend his majesty in the house of Lords, and are in 
 the king's name commanded by the lord Chancellor to choose a speaker. 
 On their return to their own house, they elect one of their own members, 
 whom on another appointed day they present to the king sitting on the 
 throne, or to his commissioners, who having approved of their choice, the 
 new speaker then petitions his majesty that during their sitting the 
 commons may have free access to his majesty, freedom of speech in their 
 own house — and freedom from arrests. After which the king reads his 
 speech, the whole house of Commons being presumed to be present at the 
 bar of the house of Lords. 
 
 The following is the manner of choosing the speaker, any member of 
 the Jiouse standing up in his place, and making a short introductory speech, 
 moves that such a member of the house as he then names, may take the 
 chair, and being seconded in that motion by some other member, if the 
 election is not contested, they lead the member so named from his seat to 
 the bar of the house, from whence they conduct him, bowing three times, 
 up the house to the chair, where being placed, he stands up, and returns 
 thanks to the house for the honour they have done him, and modestly ac- 
 knowledges his inability to perform such a trust, desires the house would 
 make choice of some more able person, which being of course disallowed, 
 he submits to their pleasure : and, after receiving the directions of the house 
 about the usual requests to be made to the king, adjourns it to the day 
 appointed. On which occasion, the usher of the black rod being again sent 
 to summon the Commons, he alters his stile and addresses himself to the 
 speaker. But if there is a contest, some other person being proposed and 
 seconded as before, it is determined by a question, as in a committee of 
 the whole house, by changing sides ; the clerk of the house putting the 
 question, he being a patent officer for life, and is always present on such 
 occasions, to whom during the contest all speeches or motions are directed, 
 
104 BRITISH PARLIAMENT. 
 
 and from courtesy, the persons nominated for speaker, always vote for 
 each other. 
 
 Before they can proceed to business, even before the choice of a 
 speaker, the members must take the oaths of allegiance and supremacy, 
 in the presence of the lord Steward of his majesty's household. After the 
 choice of the speaker, they take the said oaths again at the table, and for- 
 merly declared and subscribed their opinions against the doctrine of tran- 
 substantiation, invocation, and adoration of saints, and the sacrifice of the 
 mass: but in 1829 the statute enforcing the subscription against these 
 doctrines was repealed, and the oaths only remain. 
 
 Any member of parliament may move for leave to bring in a bill ; when 
 the question is put and agreed to by the house, the person makmg the 
 motion, and those who second it, are then ordered to prepare and bring 
 in the bill ; which when ready, the mover presents ; reading tlie order at 
 the side bar, and desires leave to bring it to the table, which being agreed 
 to, the bill is sometimes immediately read for the first time, if not, it may 
 be read at any other time, by the clerk at the table, which the house agrees 
 to J after which the speaker taking the bill in his hands reads the pream- 
 ble, and after the debate, if any, he puts the question whether it shall be 
 read a second time, and when : after the second reading, the question is put 
 whether it shall be committed, which if the bill is of great importance is 
 usually to a committee of the whole house, if it is of inferior moment to a 
 private committee, any member at pleasure naming the persons to be on the 
 committee, whose names being read by the clerk at the table, they are ordered 
 to meet in the speaker's chamber, and report their opinion to the house. 
 When the Committee meets they choose a chairman, and either adjourn 
 to some future time or immediately proceed to consider the bill : the chair- 
 man first causes a clerk attending the committee to read the bill, then he 
 reads it himself paragraph by paragraph, putting every clause to the ques- 
 tion, filling up the blanks, and making amendments according to the opin- 
 ion of the majority of the committee, of whom there must be eight of the 
 persons named to proceed regularly, though five may adjourn. When the 
 Committee, have gone through the bill, the chairman by directions of the 
 committee makes his report at the side bar of the house, reading all the ad- 
 ditions and alterations made by the committee, and how any of these amend- 
 ments have changed the scope of the bill, and what connexion they have 
 with it, the clerk having at the committee written down in what folio and 
 line of the bill those amendments are to be found ; and if it has been 
 thouglit fit by the committee to add any clause, they are marked alphabeti- 
 cally and read by the chairman, who then moves to have leave to bring up 
 the report to the table ; which being agreed to, he does, and delivers it to 
 the clerk, who reads all the amendments, and clauses, the speaker putting 
 
BRITISH PARLIAMENT. 105 
 
 tlie question whether they shall be read a second time j and if agreed to, 
 reads them himself; and as many of them as the house agrees to, 
 the question is put whether the bill so amended shall be engrossed, that 
 is to say, written fair in parchment, and read the third time some other 
 day : and then the speaker, holding the bill in his hand, puts the question 
 whether the bill should pass : if the majority is in its favour, then the clerk 
 writes on it Soil bailie aux Seigneurs ; but if the bill passes through the 
 house of peers, then it is Soil bailie aux Communes. When an engrossed bill 
 is read, and any clauses are offered to be added to it, they must be engrossed 
 in parchment like the bill, which are then called Riders, and if agreed to are 
 then added to the bill. 
 
 Petitions are offered in the same manner as bills at the bar of the house, 
 brought up by the member who presents them, and are delivered at the 
 table. All messages from the lords, as likewise all persons appearing at 
 the bar of the house, are introduced by the sergeant in attendance with 
 his mace on his shoulder. 
 
 While the speaker is in the chair the mace is always laid upon the 
 table, except when sent upon any extraordinary occasion into Westminster 
 Hall and Court of Requests to summon the members to attend. But when 
 the house resolves itself into a committee of the whole house, the mace is 
 laid under the table, and the chairman to that committee takes the chair 
 where the clerk of the house usually sits. To make a house in the Com- 
 mons, forty members are requisite, and eight for a committee ; the house 
 generally begins by reading some uncompleted bill from last session. 
 
 After the speaker and members have taken the oaths, the standing or- 
 ders of the house are read, and grand committees appointed to sit on usual 
 days. When any member stands up to speak, he must be uncovered, but 
 in strictness and regularity he ought to sit with his hat on. When the 
 speaker finds several bills prepared to be put to the question, he gives no- 
 tice the day before, that to-morrow he intends to put such bills to the third 
 reading, and desires the special attendance of all the members. And if a 
 bill is rejected it cannot be again proposed during the same session. One 
 mode of rejecting a bill, is by moving, that it be read that day six months, 
 which if carried puts an extinguisher upon it. 
 
 When a Bill is sent up by the commons to the peers, it is usual for a 
 certain number of the members to attend, to show their respect, and as 
 they approach the bar of the upper house, the member who presents the bill 
 makes three profound reverences, saying, " The commons have passed an 
 act entitled, &c., to which they desire your lordships' concurrence :" 
 The lord chancellor walks down to the bar and receives it. 
 
 When the lords send down a bill to the commons, it is delivered by one 
 of the masters in chancery, or other person whose place is on the wool- 
 sacks, who approaches the speaker, and, bowing three times, delivers the 
 
106 BRITISH PARLIAMENT. 
 
 bill to him after reading the title, and desires it may be there taken into 
 consideration. If it passes the house Les communes ont assentcz is written 
 on the bill. All messages from the commons to the lords, are introduced 
 by the black rod, and those from the lords, are presented by the sergeant, 
 who, with his mace on his shoulder, and walking on their right hand, makes 
 with them three bows as they draw near to the speaker, and then deliver 
 their message ; they do the same as they retreat, keeping their faces always 
 to the chair. When the messages are of great importance, the lords send 
 one or two of the judges to the house of commons. 
 
 In the commons, when a member speaks, he stands up, takes off his hat, 
 and addresses his speech only to the speaker ; but cannot speak twice in 
 the same debate, unless the whole house be turned into committee, and then 
 every member may reply as often as he himself or the chairman judges it 
 necessary. If any one in either house, speaks words of offence against the 
 king's majesty or to the house, he is called to order by the speaker, and 
 may be reprimanded at the bar ; but if the offence be very great, he is 
 liable to be sent to the Tower. The speaker takes no part in the debates, 
 but only makes a short and plain narrative, he does not vote unless the 
 house be equally divided. 
 
 The peers give their suffrages or votes, beginning at the puisne or lowest 
 baron, and so of the rest, each answering separately " content" or '*not 
 content." In the house of commons they vote by yeas and nays altogether, 
 and if the yeas or nays be doubtful, the house divides. If the question be 
 the bringing in a bill or petition, then the ayes go out ; but if it is on any 
 bill before the house, then the noes go out. In all divisions, the speaker 
 appoints four tellers, two of each opinion, who, after they have told those 
 within, place themselves in the passage betwixt the bar and the door of 
 the house, and tell the others who went out as they enter, and who till 
 then are not permitted to come in : afterwards the two tellers who have the 
 majority take the right hand, and placing themselves within the bar, all 
 the four make their reverences, as they advance, three times, and then de- 
 liver the numbers at the table, saying, the ayes that went out are so many, | 
 the noes that stayed in so many, and vice versa^ which the speaker repeats, 
 and declares the majority. In a committee of the whole house, the way 
 of dividing, is by changing sides, the ayes taking the right and the noes the 
 left hand of the chair, in -which case there are but two tellers. 
 
 If a bill pass m one house, and the other house demur to receiving it, 
 then a conference is demanded in the Painted Chamber, where certain deput- 
 ed members of each house meet, the lords sitting covered at a table, the 
 commons standing uncovered, when the business is debated : if they do not 
 agree, then the business is null ; but if they do agree, tlien it is at last 
 brought, with all the other bills which have passed both houses, to the king, 
 who comes again >y earing his crown and royal robes, and seated on the 
 
BRITISH PARLIAMENT. 107 
 
 throne, and tlie peers being in their robes, the clerk of the crown reads the 
 title of each bill, and as he reads, the clerk of the parliament, according to 
 his instructions pronounces the royal assent. If it is a public bill he says, 
 Le roy le veut, which gives life and birth to that bill which was before only 
 in embryo. If the bill be private, the answer is Soil fait comme il est desire. 
 If the king refuses his assent to any bill, the answer is Le roy s'avisera^ 
 which is an absolute denial, but in a mild and gracious manner, and the bill is 
 wholly null. If it be a money bill, or has subsidies for its object, he says, 
 Le roy remercie ses loyaux sujets^ accepte leur henevolence^ el aiissi le veut. 
 
 This custom of using the French language, was imposed by William the 
 Conqueror, and has been continued ever since as a matter of form, which 
 often subsists for ages after the real substance of things has been altered ; 
 and judge Blackstone says, it is " a badge, it must be owned, now the only 
 one remaining, of conquest ; and which one would wish to see fall into total 
 oblivion, unless it be reserved as a solenm memento to remind us that our 
 liberties are mortal, having once been destroyed by a foreign force." 
 
 A bill for the king's general pardon has but one reading in either house, 
 because they must take it as the king will please to give it. 
 
 When tlie business for which the parliament was summoned, has been 
 brought to a conclusion, then the king usually adjourns, prorogues, or 
 dissolves the parliament in the following manner : 
 
 The adjournments are always made in the house of peers, by the lord 
 chancellor, in the king's name, to any other day which the king pleases, 
 and also to what other place, if he thinks fit to remove them, as used for- 
 merly to be done. Every thing already debated or read in one or both 
 houses, continues in the same state as it was in before the adjournment, 
 to the next meeting, and so may be resumed. This is to be understood 
 only of such adjournments as precede a recess for some time ; for in all 
 other cases, it is the undoubted privilege of each house to adjourn itself. 
 When parliament is prorogued, the session is ended, in which case, such bills 
 in either house as were almost ready, but had not the royal assent, must 
 at the re-assembling of parliament, be begun anew. When notice is given 
 to the speaker of the house of Commons, that it is the king's pleasure to 
 adjourn the parliament, he says " This house is adjourned." 
 
 When it is the king's pleasure to prorogue or dissolve parliament, he 
 generally comes down to the house of peers wearing his crown, and sends 
 the black rod for the members of the house of commons to come to 
 the bar of the house of peers, and after signifying his assent or dissent, as 
 already described, his majesty usually makes a speech, and sometimes the 
 lord chancellor another : then the lord chancellor, by his majesty's special 
 command, pronounces the parliament either prorogued or dissolved. 
 Sometimes parliament is prorogued or dissolved by <>ommission, under the 
 great seal, and in the same manner bills have been passed. The king 
 
1^^ SCOTTISH PARLIAMENT. 
 
 being the head of the parliament, if his death happened during its sitting, 
 it was formerly ipso facto dissolved. But to prevent tumults and confu- 
 sions, it has been provided by a solemn act : " that a parliament sitting or 
 m being at the demise of the king, shall continue for six months, and if 
 not sitting, shall meet expressly for keeping the peace of the realm and 
 preserving the succession.' 
 
 THE ANCIENT PARLIAMENT OF SCOTLAND. 
 
 Although the parliament of Scotland, by the happy union of the 
 kingdoms, is now at an end, and the representatives of this country united 
 to those of England, with the peers, compose the imperial parliament of 
 Great Britain j yet when we reflect on our own independence as a free 
 people, and upon its ancient grandeur, decency, dignity, and excellent 
 order in transacting public affairs, it will not be unacceptable to take a 
 brief view of it. 
 
 The late supreme court, both in dignity and in authority, was accounted 
 the assembly of the states of the kingdom, and was called a parliament. 
 It consisted always of three estates, the lords spiritual, the lords temporal, 
 and the commissioners of counties, cities, and boroughs. This court was 
 called by tlie king or queen-regent at pleasure, allowing a certain time for 
 notice before their assembling. Forty days previous to meeting, the par- 
 liament was summoned by proclamation at the principal burgh of each 
 county ; after which the counties and burghs met for their elections. 
 Every one who held lands of the crown, who in the rolls of taxations were 
 valued at forty shillings Scots money of taxation to the king, which in 
 real value may be about ten pounds sterling a year, or every one who had 
 thirty three pounds six shillings and eight pence, of the present valuation, 
 was an elector or might have been elected, if he was legally infeft or seised 
 in the lands, and was not at the king's horn, or under an outlawry. The 
 electors subscribed the commissions they gave, which returned their mem- 
 ber or commissioner, as was the language of the Scottish parliament. In 
 the case of a controverted election, the parliament judged who should 
 serve. In the royal burgh, the common council elected the commissioner. 
 On the first session of each parliament, the regalia, crown, sceptre, and 
 sword of state, were brought down in state from the castle where they 
 were kept, to Holyrood house, the coach being well attended with guards, 
 and every passer by being obliged to be uncovered. 
 
 The following was the order of the procession in the riding of the 
 Scottish parliament at Edinburgh, 6th May, 1703, with the number of 
 
SCOTTISH PARLIAMENT. 109 
 
 those who went or should have gone in the procession. The streets of the 
 city of Edinburgh and tlie Canongate being cleared of all coaches and car- 
 riages, and a lane formed by railing the streets on both sides ; within which 
 none were permitted to enter but those who formed the procession, the 
 captains, lieutenants, and ensigns of the trained bands excepted. Without 
 the rails, the streets westward were lined with the horse guards from the 
 palace of Holyrood house ; after them, with the horse grenadiers ; next 
 with the foot guards, who covered the streets up to the Netherbow, and 
 tlience to the parliament square by the city trained bands ; from the parlia- 
 ment square to the parliament house, by the lord high constable's guards j 
 and from the parliament house to the bar, by the earl marshall's guards ; 
 the lord high constable being seated in an elbow chair at the door of the 
 parliament house j the officers of state having ridden up before in their 
 robes ; and the members of parliament with their attendants, being assem- 
 bled at Holyrood house, the rolls of parliament were called by the lord 
 Register, lord Lyon, and heralds from the windows and gates of the 
 palace, from which the procession moved to the parliament house in the 
 following order : — 
 
 Two trumpets in coats and bannei-s, bareheaded, riding 
 
 Two pui-suivants in coats and foot mantles, riding 
 
 Sixtj-three commissioners for burghs on horseback, 
 
 covered, two and two, each having a lacquey 
 
 attending on foot, the odd member 
 
 walking alone. 
 
 Seventy-seven commissioners for shires on horseback, 
 
 covered, two and two, 
 
 each having two lacqueys attending on foot. 
 
 Fifty-one lords, barons, in their robes, riding 
 
 two and two 
 
 each having a gentleman to support his train and three 
 
 lacqueys on foot, wearing above their liveries velvet 
 
 surtouts, with the arms of their respective lords 
 
 on the bi'east and back, embossed on plate 
 
 or embroidered -with gold and silver; 
 
 Nineteen viscounts as the former. 
 
 Sixty earls as the former, four lacquej s attending on each ; 
 
 Four trumpets, two and two •, 
 
 Four pursuivants, two and two ; 
 
 And sixty heralds, two and two, bareheaded. 
 
 Lord Lyon king at arms, in his coat, robe, chain, batoon, 
 
 and foot mantle 
 
 § Sword of State, S 
 
 g borne by the earl of Mar ; g 
 
 ^ The sceptre, g 
 
 I by the earl of Crawford. | 
 
 THE CROWN, 
 
 By the earl of Forfar in room of the maiquis of Douglas. 
 
 The purse, by commission of the 
 
 earl of Morton. 
 
no SCOTTISH PARLIAMENT. 
 
 The duke of QUEENSBERRY, LORD HIGH COMMISSIONER, 
 
 with his servants, pages, 
 
 and footmen. 
 
 Four Dukes, two and two ; 
 
 Gentlemen bearing their trains, 
 
 and each having eight lacqueys ; 
 
 Six marquisses, 
 
 each having six lacque3s; 
 
 The duke of Argyle ; 
 Captain of the horse guards ; 
 
 The horse guards. » 
 
 The lord high commissioner, was received by the lord high constable, 
 and by him conducted to the earl marshall, between whom his grace, 
 ushered by the lord high chancellor, was conveyed to the throne. 
 
 Before the abolition of episcopacy the two archbishops and the other 
 bishops walked in this procession, as the first estate of the parliament. The 
 archbishops had each eight footmen, and every other bishop three ; and if 
 they pleased might have each a gentleman to hold up his train. The 
 great officers of state rode up from the palace in their robes about half an 
 hour before the procession, attended by their friends on horseback, wait- 
 ing in the parliament house. When the king was present, the lord chan- 
 cellor received his majesty at the door of the house, and conducted him 
 to the throne. All the members were obliged to wait on the high com- 
 missioner in the great hall, the noblemen being in their robes. They 
 returned to the palace in the same order they came, only the constable 
 and marshall rode on the commissioner's right and left hand, in permission 
 caps : the lord chancellor and lord privy seal remained till all were de- 
 parted, and then returned to the palace in the same state they came to 
 the parliament house. When the king or queen rode in person, the 
 lord chancellor rode carrying the great seal ; but not before a commis- 
 sioner. When the king or queen regnant was present, the marquises and 
 dukes rode after the earls ; but if his majesty's commissioner was present, 
 they followed him at some distance on his right or left hand. After the 
 king or his commissioner was received by the lord chancellor, he was seated 
 on a throne six steps high with a canopy of state over it. On the first 
 step under him the lord chancellor sat on a bench with the other officers 
 of state on both sides of him. On the next step under him sat the lords of 
 session or judges. On the right hand of the throne the bishops sat, rising 
 up in two rows of benches : the archbishops sat on the two highest, and 
 the bishops on the lower according to the dignity of their sees or the dates 
 of their consecration. On the left of the throne was anotlier great bench 
 of three steps, and as many rows of benches on which the nobility sat ac- 
 cording to their precedence. In the middle of the four were two tables, 
 upon one of which the regalia were deposited ; and then beside them in 
 two great chairs the constable and marshall sat : at tlie other table the lord 
 
SCOTTISH PARLIAMENT. Ill 
 
 clerk register sat, with his deputy clerks, who were the clerks of parlia- 
 ment. 
 
 There were also benches placed on the floor : on those on the right sat 
 the commissioners of shires, and on the left the commissioners of burghs. 
 After all the members had taken their seats in the order just named, the 
 parliarfient was fenced in the king's name ; then the king, if present, or if 
 not, his commissioner, and afterwards the chancellor more copiously, de- 
 clared the cause for which they were called together ; which being con- 
 cluded, the lords spiritual (that is, the bishops) retired apart and chose eight 
 of the lords temporal ; the lords temporal likewise chose as many of the lords 
 spiritual : these altogether nominated eight barons, and as many commissioners 
 of burghs, which made in all thirty-two, who were called The Lords of 
 THE Articles, and with the chancellor, treasurer, privy-seal, the king^ 
 secretary, &c., admitted or rejected all matters proposed to the states after 
 they had been first proposed to the king. After the bills were approved by 
 the whole assembly of the states, those that passed by a majority of votes 
 were presented to the king, who by touching them with his sceptre declar- 
 ed his confirmation of them; whereas, if he refused them, they were of no 
 force. The members gave their votes distinctly in these words, / approve 
 or not approve ; only those who were not satisfied either way, answered ?ion 
 liquet : no dissents or protests were allowed to public acts ; but in private 
 acts relative to men's rights and properties, any one might have protested 
 for his interest. When all business was ended, the king, or his commissioner, 
 made a speech, and the parliament was adjourned or dissolved, for there was 
 no such thing as a prorogation in Scotland. 
 
 From the Revolution to the Union, the nobility with the commissioners 
 of shires and burghs, composed a parliament without the bishops, and in 
 queen Anne's time, the committee of the lords of the articles was abolished 
 by act of parliament. So that all the members of the house had the liberty 
 of making and debating proposals. 
 
 Conventions of the Estates — Before the union there was another 
 meeting of the three estates in Scotland, known by the name of the Con- 
 vention OF Estates, which was indicted by the king on twenty days' no- 
 tice ; the members were chosen in the same way and their proceedings were 
 the same as those of the parliament. The king was either present at that 
 meeting, or sent his commissioner, who enjoyed the same dignity and re- 
 spect as the commissioner to parliament ; but at the opening of a conven- 
 tion, there was no riding or cavalcade as at a parliament. The diflference 
 betwixt a convention and a parliament consisted chiefly in this : that par- 
 liament could both make laws and impose taxes ; whereas, the convention 
 of estates could only impose taxations, and make statutes for their collec- 
 tion, but could not make laws ; and those statutes of the convention of 
 estates were published in the same manner as acts of parliament. The 
 
112 ABSOLUTE RIGHTS OF INDIVIDUALS. 
 
 learned Sir George Mackenzie in his Institutions says, that by the records 
 of the conventions it appears, that of old the conventions of estates consisted 
 of any of the three estates summarily called off the streets by the king ; and 
 that they cried down or up money, and judged processes, which of 
 later times they could not. These conventions were not called frequently ; 
 for the goodness and justice of the kings of Scotland were such, that they 
 seldom required money from their subjects by imposing taxations, without 
 giving them also an opportunity of redressing their grievances, and of 
 making new laws for the weal and safety of the kingdom.* 
 
 OF THE ABSOLUTE RIGHTS OF INDIVIDUALS. 
 
 As municipal law is a rule of civil conduct, commanding what is right, 
 and prohibiting what is wrong, being in every Christian country based on the 
 absolute rule of our obedience — The Ten Commandments, — it follows, 
 that the primary and principal objects of the law are rights and wrongs. 
 , Rights are either, firsi^ those which concern and are annexed to the 
 persons of men, and are then called jura personarum, or the rights of per- 
 sons ; or, secondly, they are such as a man may acquire over external ob- 
 jects, or things unconnected with his person, which are styled jwra reriim, 
 or the rights of things. Wrongs are also divisible into j^r^^, private wrongs, 
 which being an infringement merely of particular rights, concern indivi- 
 duals only, and are called civil injuries ; and secondly, public rvrongs, which 
 being a branch of general and public rights, affect the whole community, 
 and are called crimes and misdemeanors. 
 
 Rights may be reduced to three principal or primary articles, — the 
 right of personal security, the right of personal liberty, and the right of pri- 
 vate property ; because, as there is no other known method of compulsion, or 
 of abridging man's natural free will, but by an infringement or diminution 
 of one or other of these important rights, the preservation of these in- 
 violate, may justly be said to include the preservation of our civil immuni- 
 ties, in their largest and most extensive sense. 
 
 I. The right of personal security consists in a person's legal and uninter- 
 rupted enjoyment of his life, his limbs, his body, his health, and his repu- 
 tation. 
 
 1. Life is the immediate gift of God, a right (at least as far as his fel- 
 low creatures are concerned) inherent by nature in every individual; and it 
 begins, in the contemplation of the law, as soon as an infant is born, or 
 
 * Blackstone's Commentaries ; Chamberlayne's MagnaB Britaiuiiaj Notitia, or present state 
 of Great Britain. 
 
ABSOLUTE RIGHTS OF INDIVIDUALS. 113 
 
 even before its birth ; for, even whilst still in the womb, an infant is sup- 
 posed in law to be bom for many purposes. It is capable of having a 
 legacy, or a surrender of a copyhold estate made to it : it may have a 
 guardian assigned to it ; and it is enabled to have an estate limited to its 
 use, and take afterwards by such limitation as if it were then actually born. 
 
 2. Both the life and limbs of a man are of such high value, in the esti- 
 mation of the law of England, that it pardons even homicide, if committed 
 se defendendo, or in order to preserve them. For whatever is done by a 
 man to save either life or member, is looked upon as done upon the high- 
 est necessity and compulsion. Therefore, if a man through fear of death 
 or mayhem, is prevailed upon to execute a deed or do any legal act, these, 
 though accompanied by all the other requisite solemnities, may be afterwards 
 avoided, if forced upon him by a well-grounded apprehension of losing 
 iiis life, or even his limbs, in case of his non-compliance ; and the same is 
 also a sufficient excuse for the commission of any misdemeanors. No 
 suitable atonement can be made for the loss of life or limb ; and the law 
 not only regards life and member, and protects every man in their enjoy- 
 ment, but also furnishes him with every thing necessary for their support ; 
 for there is no man so indigent or wretched, but he may demand a supply 
 sufficient for all the necessities of life from the more opulent part of the 
 community, by means of the several statutes enacted for the relief of the 
 poor, and detailed in another part of this work. 
 
 3. Besides those limbs and members that may be necessary to a man, 
 for his own defence or his enemy's annoyance, the rest of his person or 
 body is also entitled, by the same natural right, to security from the cor- 
 poreal insults of menaces, assaults, beating, and wounding, though such 
 insults do not amount to the destruction of life or member. 
 
 4. The preservation of a man's health from such practices as may pre- 
 judice or annoy it ; and, 
 
 5. The security of his reputation or good name from the arts of detrac- 
 tion and slander, are also rights to which every man is entitled, by reason and 
 natural justice ; since, without these, it is impossible to have the perfect 
 enjoyment of any other advantage or right. 
 
 II. Next to personal security, the law of England regards, asserts, and 
 preserves the personal liberty of individuals. This personal liberty consists 
 in the power of loco-motion, of changing situation, or removing one's per- 
 son to whatsoever place one's own inclinations may direct, without impri- 
 sonment or restraint, unless by due course of law. 
 
 Personal confinement, in any way, is an imprisonment. So that the 
 keeping a man against his will in a private house, putting him in the stocks, 
 arresting or forcibly detaining him in the street, is an imprisonment. But 
 if a man be lawfully imprisoned, this is no duress of imprisonment. To 
 make imprisonment lawful, it must either be by process from the courts 
 
1 14 ABSOLUTE RIGHTS OP INDIVIDUALS. 
 
 of judicature, or by warrant from some legal officer, having authority to 
 commit to prison ; which warrant must be in writing, under the hand and 
 seal of the magistrate, and express the causes of his commitment, in order 
 to be examined into (if necessary) upon a habeas corpus. If there be no 
 cause expressed, the gaoler is not bound to detain the prisoner. 
 
 A natural and regular consequence of this personal liberty is, that 
 every Englishman may claim a right to remain in his own country, so 
 long as he pleases, and not to be driven from it, unless by the sentence of tlie 
 law. The king, indeed, by his royal prerogative, may issue out his writ, 
 ne exeat regnurn^ and prohibit any of his subjects from going into foreign 
 parts without license. The law in this respect is so benignly and liberally 
 construed for the subject's benefit, that, though ivithin the king may com- 
 mand the attendance and service of all his liegemen, yet he cannot send 
 any man out of the realm, even upon public service, excepting soldiers and 
 sailors, the nature of whose employment necessarily implies an exception ; 
 he cannot even constitute a man lord deputy or lieutenant of Ireland 
 against his will, nor make him a foreign ambassador. For this might, 
 in reality, be no more than an honourable exile. 
 
 III. The third absolute right, inherent in every Englishman, is that of 
 prope/ty, which consists in the free use, enjoyment, and disposal of all his 
 acquisitions, without control or diminution, save only by the laws of tlie 
 land. The great Charter, already detailed, has declared, that no freeman 
 sliall be disseised nor divested of his freehold, nor of his liberties, nor free 
 customs, but by the judgment of his peers, or by the law of the land. 
 
 So great respect does the law of the land pay to private property, that 
 it will not authorise the least violation of it ; no, not even for the general 
 good of the whole community. If a new road, for instance, were to be 
 made through a private person's grounds, although it might perhaps be ex- 
 tensively beneficial to the public, yet the law permits no man, or set of men, 
 to do this without the owner of the land's consent. In this and similar 
 cases, the legislature alone can, and, indeed, frequently does, interpose and 
 compel the individual to acquiesce. But how does it interpose and compel ? 
 Not by absolutely stripping the subject of his property in an arbitrary man- 
 ner, but by giving him a full indemnification and equivalent for the in- 
 jury thereby sustained. And even this is an exertion of power, in which 
 the legislature indulges with caution, and which nothing but the legislature 
 can perform. 
 
 In the three preceding articles we have taken a short view of the prin- 
 cipal absolute rights which appertain to every Englishman. But in vain 
 would these rights he declared, ascertained, and protected by the dead 
 letter of the laws, (for the law is a dead letter till it is pronounced by the 
 lips of a judge lawfully appointed to administer it,) if the Constitution 
 had provided no other method to secure their actual enjoyment. It has, 
 
ABSOLUTE RIGHTS OF INDIVIDUALS. 115 
 
 therefore, established certain other auxiliary subordinate rights of the sub- 
 ject, which serve principally as outworks or barriers to protect and main- 
 tain inviolate the three great and primary rights of personal security, 
 personal liberty, and personal property. 
 
 1. The constitution, powers, and privileges of parliament, of which we 
 have already treated at large in a preceding article. 
 
 2. The limitation of the king's prerogative, by bounds of his own con- 
 cession, so certain and notorious, that it is impossible he should either 
 mistake or legally exceed them. 
 
 3. A third subordinate right of every Englishman is, that of applying 
 to the Courts of Justice for redress of injuries. Since, in England, the law 
 is the supreme arbiter of every man's life, liberty, and property, courts 
 of justice must at all times be open to the subject, and the law be duly 
 administered therein. 
 
 4. If any uncommon injury, or infringement of the rights before men- 
 tioned, should happen, which the ordinary course of law is too defective 
 to reach, there still remains another subordinate right, appertaining to 
 every individual — the right of petitioning the king, or either house of 
 Parliament, for the redress of grievances. Care only must be taken 
 lest, under the pretence of petitioning, the subject be guilty of any riot, 
 or tumult, as happened in the memorable parliament in 1640 ; and, to 
 prevent this, it is provided by the statute 13th Car. II., that no petition 
 to the king or either house of Parliament, for any alteration in the 
 church or state, shall be signed by above twenty persons, unless the matter 
 thereof be approved by three justices of the peace, or the major part of the 
 grand jury, in the country ; and in London, by the lord mayor, alderman, 
 and common council ; nor shall any petition be presented by more than 
 ten persons at a time. But, under these regulations, it is declared by 
 the statute 1st W. and M., that the subject hath a right to petition, and 
 that all commitments and prosecutions for such petitioning are illegal.* 
 
 5. The fifth and last auxiliary right of the subject is, that of having 
 arms for a man's defence, suitable to his condition and degree, and such 
 as are allowed by law. Which is also declared by the same statute, 1st W. 
 and M., and, indeed, it is a public allowance under due restrictions, of the 
 natural right of resistance and self-preservation, when the sanctions of so- 
 cieties and laws are found insuflScient to restrain the violence of oppression- 
 
 In these several articles consists British rights or liberties, liberties more 
 generally talked of than thoroughly understood, and yet highly necessary 
 to be perfectly known and considered by every man of rank or property, 
 lest his ignorance of the points whereon they are founded should hurry 
 him into faction and licentiousness, on the one hand, or a pusillanimous 
 indifference on the other.f 
 
 # See Bill of Rights. t Blackstone's Commentaries. 
 
A16 KING'S ROYAL FAMILY. 
 
 OF THE KING'S ROYAL FAMILY. 
 
 The first and most considerable branch of the king's royal family, re- 
 garded by the laws of England, is the Queen. 
 
 The Queen of England is either queen regnant, queen consort, or queen 
 dowager. The queen regent, regnant, or sovereign^ is she who holds the 
 crown in her own right ; but the queen consort is the wife of the reigning 
 king, and she, by virtue of her marriage, is participant of divers prero- 
 gatives above other women. 
 
 And, first, she is a public person, exempt and distinct from the king ; 
 and is not, like other married women, so closely connected as to have lost 
 all legal or separate existence, so long as the marriage continues j for the 
 queen has ability to purchase lands, and to convey them, to make leases, to 
 grant copyholds, and do other acts of ownership, without the concuiTence 
 of her lord, which no other married woman can do. She is also capable 
 of taking a grant from the king, which no other wife is from her husband. 
 The queen of England has separate courts and officers distinct from the 
 king, not only in matters of ceremony, but even of law ; and her attorney 
 and solicitor-general are entitled to a place within the bar of his majesty's 
 courts, together with the king's counsel. She may likewise sue and be 
 sued alone, without joining her husband. She may also have a separate 
 property in goods, as well as lands, and has a right to dispose of them by 
 wiU. In short, in all legal proceedings she is looked upon as ^.fcmme sole, 
 and not as a married woman. 
 
 The queen has also many exceptions and minute prerogatives. For 
 instance, she pays no toll, nor is she liable to any amercement in any court. 
 But in general, unless when the law has expressly declared her exempted, 
 she is upon the same footing with other subjects ; being to all intents and 
 purposes the king's subject, and not his equal. She has also some pecu- 
 niary advantages which form her a distinct revenue. 
 
 But although the queen consort is in all respects a subject, yet in point 
 of security of her life and person, she is put on the same footing with the 
 king. It is equally treason to compass or imagine the death of our 
 lady the king's companion, as of the king himself; and to violate or de- 
 file the queen consort amounts to the same high crime ; as well in the 
 person committing the fact, as in the queen herself, if consenting. If, 
 liowever, the queen be accused of any species of treason, she shall (whe- 
 ther consort or dowager) be tried by the peers of parliament. (25 Ed- 
 ward III.) 
 
 The husband of a queen regnant, as prince George of Denmark was io 
 queen Anne, is her subject, and may be guilty of high treason against her : 
 
KING'S ROYAL FAMILY. 117 
 
 but in the instance of conjugal infidelity, lie is not subject to the same pe- 
 nal retributions. 
 
 A queen dowager is the widow of the king, and as such enjoys most of 
 the privileges belonging to her as queen consort. But it is not high trea- 
 son to conspire her death, or violate her chastity, for the same reason as 
 was before alleged. Yet still, pro dignitate regali, no man can marry a 
 queen dowager without special license from the king, on pain of forfeiting 
 her land and goods. But she, though an alien born, shall still be entitled 
 to dower after the king's demise, which no other alien is. A queen dow- 
 ager, when married again to a subject, doth not lose her regal dignity, as 
 dowager peeresses do their peerage when they marry commoners. Ca- 
 tharine, queen dowager of Henry V. married Owen Tudor, a private gen- 
 tleman ; 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, and also his royal 
 consort, and the princess royal, or the king's eldest daughter, are likewise 
 peculiarly regarded by the laws. For by statute 25 Edward. III., to com- 
 pass or conspire the death of the former, or to violate the chastity of either 
 of the latter, are as much high treason, as to conspire the death of the 
 king, or to violate the chastity of the queen. The heir apparent to the 
 crown is usually made prince of Wales and earl of Chester, by special cre- 
 ation and investiture ; but being the king's eldest son, he is by inheritance 
 duke of Cornwall, without any new creation. 
 
 The rest of the royal family may be considered in two different lights, 
 according to the different senses in which the term roi/al family is used. 
 The larger sense, includes all those who are by any possibility inheritable 
 to the crown, which since the revolution and act of settlement, means the 
 protestant issue of the princess Sophia. The more confined sense includes 
 only those, who are within a certain degree of propinquity to the reigning 
 prince, and to whom therefore the law pays an extraordinary regard and 
 respect : but after that degree is past, they fall into the rank of ordinary 
 subjects, and are seldom considered any farther, unless called to the suc- 
 cession upon failure of the nearer hne. 
 
 x\nd now by statute 12 Geo. .III. no descendant of the body of Geo. II. 
 (other than the issue of princesses married into foreign families) is capable 
 of contracting matrimony without the king's previous consent signified un- 
 der the great seal ; and any marriage contracted without such consent is 
 void. Provided, that such of the said descendants, as are above the age 
 of twenty-five, 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 expiration of the said 
 year, expressly declare their disapprobation of such intended marriage. 
 
 The royal family is subject to pay taxes, unless they are expressly ex- 
 
118 THE KING. 
 
 empted, which in every tax bill is always done. But the peculiar privi- 
 leges of the royal family are greatly counterbalanced by the legal restraints 
 laid upon their marriages. 
 
 The queen was anciently entitled to certain perquisites, called the queen's 
 gold, to purchase oil, as it was quaintly said, and attire for her person. 
 Another of the queen's perquisites was formerly the right to the half of 
 any whale found on the coast, which was for that reason called a royal fish. 
 The head belonged to the king and the tail to the queen ; and the reason 
 assigned by old writers for this whimsical division was "to furnish the 
 queen's wardrobe." But of late years these rights have not been exacted.* 
 
 OF THE KING. 
 
 Th e supreme executive power of these kingdoms is vested by our laws 
 in a single person, the king or queen : for it matters not to which sex the 
 crown descends ; but the person entitled to it, whether male or female, is 
 immediately invested with all the ensigns, rights, and prerogatives of sove- 
 reign power. 
 
 " The grand fundamental maxim," says Blackstone, " upon which the 
 jus coronce, or right of succession to the throne of these kingdoms depends, 
 I take to be this : ' that the crown is by common law and constitutional 
 custom, hereditary, but that the right of inheritance may from time to 
 time be changed or limited by act of parliament ; under which limitations 
 the crown still continues hereditary.' " 
 
 1. First, it is hereditary^ or descendible to the next heir, on the deatli 
 or demise of the last proprietor. 
 
 2. But, secondly, as to the particular mode of inheritance, it in general 
 corresponds with the feudal path of descents, chalked out by the common 
 law in the succession to landed estates ; yet with some material exceptions. 
 Like estates ; the crown will descend lineally to the issue of the reigning 
 monarch, as it did from king John to Richard II., through a regular 
 pedigree of six lineal generations, and from George II. to his grandson 
 George III. As in common descents, the preference of males to females, 
 and the rights of primogeniture among the males, are strictly adhered to. 
 Like lands or tenements, the crown, on failure of the male line, descends 
 to the issue female. But, among the females, the crown descends by right 
 of primogeniture to the eldest daughter only and her issue, and not as in 
 
 * Blackstone's Commentaries. 
 
THE KING. 119 
 
 common inheritances, to all the daughters at once ; the evident necessity 
 of a sole succession to the throne having occasioned the royal law of de- 
 scents to depart from the common law in this respect ; and therefore queen 
 Mary, on the death of her brother, succeeded to the crown alone, and not 
 in partnership with her sister Elizabeth. Lastly, on the failure of lineal 
 descendants, the crown descends to the next collateral relations of the last 
 king J provided they are lineally descended from tlie blood royal, that is, 
 from the royal stock which originally acquired the crown. 
 
 3. It is unquestionably in the breast of the king, with the advice of both 
 houses of parliament, to change the succession ; and by particular entails, 
 limitations, and provisions, to exclude the immediate heir, and vest the in- 
 heritance in any one else. 
 
 4. But however the crown may be limited or transferred, it still retains 
 its descendible quality, and becomes hereditary in the wearer of it. And 
 hence in our law the king is said never to die, in his political capacity ; 
 though in common with other men, he is subject to mortality in his natural 
 body ; because immediately on the natural death of Henry, George, or 
 William, the king survives in his successor. For the right of the crown 
 vests eo instante, upon his heir j either the kceres fiatus, if the course of de- 
 scent remains unimpeached, or the hceres f actus, if the inheritance be 
 under any particular settlement. So that there can be no interregnum ; 
 but, as Sir Matthew Hale observes, the right of sovereignty is fully in- 
 vested in the successor by the descent of the crown. And therefore it be- 
 comes in him absolutely hereditary, unless it is otherwise ordered and deter- 
 mined by the rules of the limitation. 
 
 Beyond all controversy the English government has been monarchical 
 from the remotest period of its existence. That the royal office has al- 
 ways been hereditary and not elective, has never been denied but by the 
 regicides who murdered king Charles I. These violent and infatuated 
 men asserted the inalienable right of the people to elect their supreme 
 governor j and soon afterwards, with great inconsistency, the crown was 
 offered to Cromwell, by a house of commons, convened by the sole au- 
 thority of the usurper. Indeed the title of Cromwell himself to the su- 
 preme power, rested merely upon the instrument of government, which was 
 drawn up by a counsel, consisting only of his general officers. What 
 share the people had in proposing to make him a king, may be seen in the 
 histories of that time. 
 
 In 1656 Cromwell sununoned a parliament, when, not trusting to the 
 good will of the people, lie 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 his pretensions : he therefore placed a guard at the 
 door, and no one was pennitted to enter the house of commons who did 
 
120 THE KING. 
 
 not produce a warrant from his council. This packed parliament voted a 
 renunciation of all title in Charles 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 j^eople. 
 
 The hereditary right to the crown, acknowledged by the laws of England, 
 has obtained the general consent and an established^ usage ; and conse- 
 quently the king has the same title to the crown, that a private gentleman 
 has to his hereditary estate. 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 election of the ancient imperial 
 governors was universally accompanied with bloodshed and murder. The 
 election of the kings of Poland in former days, invariably raised the bitter 
 waters of discontent and sedition to an alarming height, from which they 
 subsided only in proportion to the fall of the fountain from which they 
 flowed, deluging that unhappy country with the blood of its slaughtered 
 people. But what Englishman who has witnessed the scenes of riot and 
 confusion, which are exhibited at the election of representatives in parlia- 
 ment, will not rejoice that the succession to the crown is marked out with 
 constitutional precision ; that a rule is laid down, which is uniform, uni- 
 versal, and permanent, and that thereby the peace and freedom of the state 
 are preserved ? 
 
 The doctrine of representation likewise prevails in the descent of tlie 
 crown, as in other inheritances ; thus Richard II. succeeded his grand- 
 father Edward III. in right of his father the Black Prince, who died whilst 
 prince of Wales, and George III. took the crown on the demise of his 
 grandfather George II. in right of his fatlier Frederick prince of Wales, 
 and each to the exclusion of their uncles. 
 
 As already mentioned, the king with the advice of his parliament, has 
 the power to defeat the hereditary right, and entail the succession in any 
 particular line. And the reason of this is very obvious, 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 
 hand, to avert the miseries that must accrue to the reigning monarch at 
 all times, were any such autliority expressly confided to the people, wlio 
 are liable to be influenced by caprice, and hurried on by the most ungo- 
 vernable passions. Hence it is plain, that the English constitution dis- 
 claims all such political theories, as any right inherent in the people, either 
 to choose or set aside their king. This is clear from the bill of rights, 
 called the " Declaration of Right," in which the lords and commons con- 
 sider it " as a marvellous providence and merciful goodness of God to this 
 
THE KING. 121 
 
 nation to preserve," king William and queen Mary, " nnost happily to 
 reign over us on the throne of their ancestors^ for which from the bottom 
 of their hearts they return the humblest thanks and praises." The two 
 houses in the bill of rights, did not thank God that they had found a fair 
 opportunity to assert their right to choose their own governors, much less 
 to make an election the only lawful title to the crown, after king James 
 II. had made the throne vacant by his abdication ; but on the contrary, in 
 order to exclude for ever the doctrine " of a right to choose our own 
 governors," a subsequent clause of that immortal law just mentioned de- 
 clares, that " the lords spiritual and temporal, and commons, do in the 
 name of all the people aforesaid, most humbly and faithfully submit them- 
 selves, their heirs and posterity for ever ; and do faithfully promise that 
 they will stand to, maintain, and defend their said majesties, and also the 
 limitation of the crown, herein specified and contained, to the utmost of 
 their powers. It is very surprising that any sensible person can infer the 
 doctrine of a right to choose our own governors from the conduct of our 
 ancestors at 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. 
 
 The true spirit of our constitution, not only in its settled course, but 
 in all its revolutions, is hereditary succession to the reigning monarch, 
 whether he obtained the crown by law or by force. The regular inheri- 
 tance 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 the kings 
 of England. But the beautiful feature of hereditary succession marked 
 tlie infancy of our government, bloomed in its manhood, and is indelibly en- 
 graven in the venerable wrinkles of its increasing age. 
 
 Egbert, who was the first king of England, and the last of the Saxon 
 heptarchy, was king of the West Saxons, by a long and uninterrupted de- 
 scent from his ancestors of above 300 years, and united the heptarchy in 
 one monarchy under himself in the year 828. How his ancestors obtained 
 their titles, it is in vain for us to inquire, since there are no documents in 
 existence that will satisfy such political curiosity. However, Egbert be- 
 came sole monarch of England, partly by the consent of, and partly by the 
 c^mquest over, the other six kingdoms of the heptarchy. 
 
 From Egbert the crown descended regularly for two hundred years, 
 through a succession of fifteen princes, to the death of Edmund Ironside, 
 without 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 himself. 
 
 At the death of Edmund Ironside, Canute, king of Denmark, obtained 
 
 9 
 
122 THE KING. 
 
 the kingdom by violence, by which means a new family were in possession 
 of the throne. Three of his heirs succeeded to the throne j and on the 
 death of Hardicanute, the ancient Saxon line was restored in Edward the 
 Confessor, who was the next of kin then in England. On Edward's de- 
 cease, Harold II. usurped the government, for Edgar Atheling, the grand- 
 son of Ironside, was the lawful heir. Harold being defeated at the battle 
 of Hastings, was dispossessed of the tlirone by William the Conqueror. 
 Edgar Atheling, the true heir, retired to Scotland, and Malcom the Scot- 
 tish king married his sister Margaret, who for her piety is commonly call- 
 ed Saint Margaret, whose descendant James I. restored to England her 
 ancient Saxon line. Robert, the Conqueror's eldest son, 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. 
 
 Henry I.'s real heiress was his daughter, the empress Maud or Matilda ; 
 but Stephen usurped the throne, having only the feeble title of being the 
 Conqueror's grandson by his mother's side ; Henry II. succeeded Stephen ; 
 he was the Conqueror's undoubted heir after his mother Matilda, and was 
 also lineally descended from Edmund Ironside, the last of the Saxon here- 
 ditary kings. Henry was succeeded by Richard I., wlio dying childless, 
 the right of succession rested in his nephew Arthur, his next brother 
 Geoffrey's son. But John, the late king's surviving brother, seized the 
 crown, and afterwards murdered his nephew, the doctrine of representa- 
 tion not being then clearly understood. 
 
 Henry III., who succeeded liis father, king John, liad 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. 
 
 Henry IV. was the son of John of Gaunt, duke of Lancaster, fourth 
 son of Edward III. ; he rebelled against Richard II. and compelled him 
 to resign the crown. And history has hitherto accused that prihce of 
 adding murder to usurpation ; but Mr Tytler in his excellent history of 
 Scotland, has demonstrated that Richard took refuge in Scotland, and 
 died a natural death in Stirling castle, in the chapel of which fortress the 
 remains of that unhappy prince now lie. — Requiescat in pace. Henry's 
 title, however, was not a just one ; for Lionel, duke of Clarence, tliird 
 son of Edward III. and John of Gaunt's elder brother, left a daughter 
 Philippa, from whom descended the illustrious house of York, who were 
 the true heirs of the crown. But Henry having at that time a large 
 army at his command, asserted his defective title with effect. And it was 
 enacted by statute 7 Henry IV. " that the inheritance of the crown and 
 realms of England and France, and all other of the king's dominions, 
 shall be set and remain in the person of our sovereign lord the king, and 
 
THE KING. 123 
 
 in tlie heirs of his body issuing." It is obvious, from the terms of tlie 
 statute, that Henry's title appeared even at that time doubtful j and it is 
 equally clear, that the king de facto^ and parliament, in this instance exer- 
 cised the right of changing and limiting the succession of the crown. 
 
 But " the beginning of strife is as when one letteth out waters." No 
 man can tell, when a river breaks through its banks and rushes from its 
 accustomed channel, what devastation it will occasion. Henry's usurpa- 
 tion gave rise to the contest between the houses of York and Lancaster. 
 The latter in maintaining their possession, and the form.er in asserting their 
 just right, spread desolation and misery, fire and sword, through a peace- 
 ful land for several subsequent generations. Henry was succeeded by his 
 son and grandson Henry V. and Henry VI. In the reign of the latter 
 pious but weak prince, the house of York asserted its donnant title ; and 
 after watering England with native blood for seven years, at length esta- 
 blished its legitimate rights in the person of Edward IV. 
 
 In all the acts of parliament of Edward IV. wherein the Henries of the 
 house of Lancaster were named, they are called " lately in deed not of 
 right kings of England ;" from hence first arose the distinction of a king 
 ^^dejure" and a king '^de facto, * 
 
 On the death of Edward, the crown descended to his eldest son ; Ed- 
 ward v., who, with his brother the duke of York, are generally believed 
 to have been murdered in the tower, by their uncle Richard duke of Glou- 
 cester's order ; after he had insinuated into the people a suspicion of the 
 bastardy of the two young princes, and of their sister Elizabeth, to whom 
 the crown of right devolved, on the death of her brothers. And the 
 wicked and unnatural uncle usurped the government, under the name of 
 Richard III. He enjoyed, however, the fruits of his villany little more 
 than two years, when his tyranny excited Henry, earl of Richmond, to as- 
 sert his title to the crown. Richard being slain in the battle of Bosworth, 
 Richmond took possession of the crown by the style of Henry VII., al- 
 though 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 recognised as king by an act of parlia- 
 ment in the first year of his reign. But the right of the crown was un- 
 doubtedly in Elizabeth, the daughter of Edward IV. This princess, the 
 Ijeiress of the royal house of York, Henry married in the year 1486, and 
 thus happily settled the fierce and bloody contest, of the two rival families, 
 commonly called the wars of the roses, from each having a rose for their 
 cognizance, the white for Lancaster and the red for York. 
 
 How mysterious are the ways of God ! How often does He overrule the 
 wickedness and ambition of man, for the accomplishment of the greatest 
 benefits to mankind ! Had Richard conducted the affairs of government 
 with justice and moderation, instead of exhausting the people with tyranny 
 
124 
 
 THE KING. 
 
 and oppression, so monstrous a title as that of the earl of Richmond would 
 never have been asserted. But having succeeded in his pretensions as the 
 heir of the house of Lancaster, Henry married Elizabeth, who by the 
 cruel murder of her brothers, was the undoubted heiress, not only of the 
 illustrious house of York, but also of the Conqueror, the common royal 
 stock. 
 
 Henry VIII. the issue of this auspicious marriage, therefore became 
 king by a clear and indisputable hereditary right, and to him his three 
 children succeeded in regular order. Edward VI. following his father, 
 dying young, was succeeded by his two sisters, Mary and Elizabeth. The 
 parliament, ever obsequious at that time to the reigning monarch, passed 
 various acts respecting the legitimacy or illegitimacy of the birth of 
 Henry's two daughters. 
 
 On the death of queen Elizabeth, the line of Henry VIII. became ex- 
 tinct ; and the crown of course devolved on James VI. of Scotland and I. 
 of England, who was the lineal descendant of Henry VII. and Elizabeth of 
 York, whose eldest daughter, the lady Margaret, married James IV. of 
 Scotland, so that James their grandson united in his own person an un- 
 doubted title to both the Scottish and English crowns, and • was the heir 
 both of Egbert and William the Conqueror. In James, therefore, centered 
 all the claims of the houses of York and Lancaster j and what is more re- 
 markable, in him, also, the ancient Saxon line was restored : he being 
 lineally descended from Margaret Atheling, the sister of Edgar, the true 
 heir of the throne at the conquest by William the Norman. The parlia- 
 ment of England, I James I. c. i., in recognising James' title, acknowledg- 
 ed his majesty, " as being lineally, justly, and lawfully, next and sole heir 
 of the blood -royal of this nation." 
 
 James was succeeded by his only surviving son, the unfortunate Charles 
 I., whose lawless judges had the effrontery and folly to tell 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 doctrine, since Charles could deduce an undeniable 
 hereditary title for more than eight hundred 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 king's head, not 
 by the sentence of the law, but with the arm of violence, should deny the 
 constitutional inviolability of his person. Nor is it surprising, that in the 
 commission of such a traitorous act, as putting his majesty to death, they 
 should tell him that he was an elective, and not an hereditary king. For, 
 with all their folly, they had discernment enough to foresee that the murder 
 of the king would only make way for his son, if they admitted the ancient 
 doctrine of the hereditary succession to the crown. They probably kept 
 in mind the certainty that an hereditary successor would call them to a se- 
 
THE KING. 125 
 
 vere account for the murder of his father. Their notions, therefore, were 
 just as reasonable as the scepticism of those who deny the divine authority 
 of the Bible, because they perceive that its holy doctrines condemn their 
 ungodly practices. 
 
 The sacrilegious murder of king Charles, made way for Cromwell's 
 usurpation, who assumed the title of Lord Protector. 
 
 After an usurpation of eleven years, a solemn parliamentary convention 
 of the estates restored the crown to the right heir, king Charles II. In 
 their proclamation to restore the king, the convention declared that " im- 
 mediately 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 themselves, their 
 heirs and posterity for ever." 
 
 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 be- 
 ing a papist, but was rejected by the lords, and the king himself declared 
 that he would never consent to it j so that on the death of Charles, the 
 duke succeeded by the name of James II. It was on account of his re- 
 ligion alone that this attempt of the commons to set aside James' just 
 right was made ; it should be remembered, that there was no law in exist- 
 ence at that time, which limited the entail of the crown to the protestant 
 succession. The confession of faith of the established church of Scotland 
 says expressly, that " infidelity or difference in religion doth not make void 
 the magistrate's just and legal authority, nor free the people from their 
 due obedience to him." — Con. of faith ^ ch. xxiii. § iv. 
 
 The infatuated king James, after various and notorious attempts to 
 change the established religion, and to set up an arbitrary government, in- 
 dependent on the law, voluntarily vacated the throne by abdication. But 
 our ancestors very prudently voted in both houses of parliament, that king 
 James' misconduct amounted only to an endeavour to subvert the consti- 
 tution. Thus by simply declaring the throne vacant, it was filled by the 
 nearest in proximity of blood to the late king, which was his eldest 
 daughter Mary, with whom was associated her husband the prince of 
 Orange, by the title of William HI. and Mary II. Both houses of the 
 convention parliament issued the following declaration, dated 12th Feb. 
 1688, " 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." 
 
 Towards the end of the reign of William, the duke of Gloucester, the 
 
126 
 
 THE KING. 
 
 son of the princess Anne, dying, and with him all hopes of a prolestant suc- 
 cession in the right line failed ; William, by the advice of parliament, had 
 previously enacted, that no person professing the faith of the Latin church 
 should ever be capable of inheriting, possessing, or enjoying the crown of 
 these realms. In this dilemma, therefore, the entail of the crown expectant 
 on the death of William and queen Anne without issue, was settled by 
 statute 12 and 13 William III. c. ii., on the princess Sophia, dowager 
 Electress of Hanover, and grand-daughter of king James I., and on the 
 heirs of her body, being protestants. 
 
 On the death of the prince of Ofange, queen Anne succeeded to the 
 imperial crown, who died without issue, but surviving the princess Sophia 
 of Hanover, the crown descended to her son and heir George I. ; to him 
 succeeded his son George II. ; on whose demise, George III. succeeded in 
 right of his father Frederic, prince of Wales : after a long and glorious 
 reign, he was succeeded by his son George IV., who dying without issue, 
 transmitted the crown to his second brother the duke of Clarence, our pre- 
 sent sovereign, whom may God long preserve. The heiress presumptive 
 is the princess Victoria, daughter of his late royal highness the duke of 
 Kent, fourth son of George III. 
 
 Upon the whole view of this subject, it may be clearly seen, that the 
 title to the crown is hereditary^ though not altogether so absolutely so as 
 formerly j because previous to the Revolution, the crown descended to the 
 next heir, without any restriction ; but since that event the descent is con- 
 ditional, being limited to such heirs only of the body of the princess So- 
 phia, as are jjrotesiant members of the church of England, and are mar- 
 ried to none but 'protestants. From several changes in the line of succes- 
 sion, different common stocks have been thereby created. The first com- 
 mon royal stock was that of king Egbert ; after him was William the 
 Conqueror ; afterwards these two common stocks were united in the per- 
 son of James I., which continued till the death of queen Anne; and now 
 the common stock is the princess Sophia of Hanover. 
 
 The statute G Anne made it penal to dispute the constitutional power 
 of the king with the advice of parliament to alter the succession : it is en- 
 acted " that if any person, maliciously, advisedly, and directly shall main- 
 tain by writing or printing, that the kings of this realm, with the autho- 
 rity 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 maintain the 
 same by only preaching, teaching, or advised speaking, he shall incur the 
 penalties of a prcemunire.''^ 
 
 It is not to be imagined that king James II. destroyed the monarchy 
 when he abdicated the throne, and thus dissolved the constitution ; 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 
 
ROYAL FAMILY OF SCOTLAND. 127 
 
 renounce each its share of legislative authority. Neither was the placing 
 of the prince of Orange upon the throne, making the monarchy elective. 
 The necessity of the case obliged the convention to fix the crown some- 
 where : but tliey adhered to old constitutional principles, and enacted the 
 succession of the crown ; so that they did not change the substance, but re- 
 gulated the mode of succession, and described the persons who should in- 
 lierit the crown for ever. The monarchy, therefore, is as purely heredi- 
 tary now as it ever was. 
 
 The real fact, then, with regard to the constitution, both in its settled 
 course and in all its revolutions, has ever been, and still is this ; that who- 
 ever came into possession of the crown, or however he came by it, whether 
 by law or by force, the hereditary succession invariably continued. 
 
 It is worthy of observation, how carefully and delicately the convention 
 parliament in 1688 disclaimed the assumption of any such abstract right 
 as the people of England electing their sovereign, although the preamble 
 to the Bill of Rights expressly declares, " that the lords spiritual and tem- 
 poral, and conunons assembled at Westminster, lawfully, fully, and freely 
 represent all the estates of this realm." In the statute of W. and M., 
 the parliament prays the king and queen, " that it may be declared and 
 enacted, that all and singular 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 forefathers, and to be 
 transmitted to our posterity. By this means, our constitution preserves 
 a unity in so great a diversity of its parts. We have an hereditary 
 crown, an hereditary peerage, and a house of commons, and a people in- 
 heriting privileges, franchises, and liberties, from a long line of ancestors. 
 And the chief excellency of the hereditary right of the kings of Eng- 
 land is, that it is closely interwoven with those liberties that are equally 
 the inheritance of the subject.* 
 
 ORIGIN AND DESCENT OF THE ROYAL FAMILY OP / 
 SCOTLAND. 
 
 Having given an historical account of the descent of the crown in Eng- 
 land, from the consolidation of the heptarchy into one monarchy, under 
 
 * Blackstone's Commentaries,— Custaiice on the Constitution. 
 
128 ROYAL FAMILY OF SCOTLAND. 
 
 Egbert ; it may be interesting to many of our readers to know something 
 of that illustrious house which swayed the sceptre of Scotland during its 
 independence as a separate kingdom, which gave a sovereign to her more 
 powerful rival, and the blood of whose stock circulates at this moment 
 in the veins of almost every crowned head in Europe. 
 
 I shall not attempt to explore the regions of romance to trace the ori- 
 gin of the royal family of Scotland, which is said by Buchanan to have 
 existed three hundred years before the incarnation of our blessed Saviour, 
 the first of whom was Fergus the son of Ferquhard, a king of Ireland. 
 There is a tradition, that a king named Hiber came from Egypt and settled 
 in Spain ; from thence he passed over into Ireland. This monarch brought 
 from Egypt a marble stone on which he was accustomed to sit ; which stone 
 has ever since been used at the coronation of the Scottish sovereigns, from 
 the time of Fergus to the time of John Baliol, when Edward I. of Eng- 
 land carried it off among the spolia opima of the kingdom, being influenced 
 by an old traditionary legend engraven on the stone itself : 
 
 Ni fallat fatum, Scoti quocunque locatum 
 Invenient lapidem, regnare tenentur ibidem. 
 
 Fergus assumed the rampant lion as his arms, and which has been the 
 royal arms ever since. From this courageous prince, historians enumerate 
 twenty-five kings, who were idolaters, previous to Donald I., who was the 
 first Christian prince in Scotland. From Donald to Achaius there were 
 thirty-seven kings successively. In the year 809, Achaius entered into 
 " league and alliance offensive and defensive, towards all and against all 
 kings and princes, not excepting any, with king Charlemagne and the 
 most Christian kings of France his successors to perpetuity." From 
 Achaius to Malcolm Canmore there were a succession of twenty kings. 
 Malcolm III. began his reign in the year 1061. He married Margaret, 
 daughter of Edgar Atheling, the true heir in the Saxon line to the crown 
 of England, — a princess of great beauty and many accomplishments ; by 
 this happy marriage the foundation was laid for the present consolidation 
 of the three kingdoms under one crown ; and through a long and illustrious 
 posterity, their descendants succeeded by right of blood to the crown, of which 
 saint Margaret's father was dispossessed by the Norman Conqueror, and 
 restored to England the true line of her Saxon monarchs. Malcolm III. 
 with his eldest son Edward, were slain before Alnwick castle. He was 
 succeeded successively by his three sons, Edgar, Alexander I. and David I. 
 His eldest daughter Matilda, commonly called Maud, married Henry I. or 
 Beauclerc, of England ; from whom descended the kings of England. Malcolm 
 was succeeded immediately by his brother Donald VI. who usurped the 
 crown on account of his nephew's youth. Duncan, bastard of the late king, 
 dethroned him and seized the crown. Donald fled to the Hebrides ; but con- 
 triving to murder Duncan, resumed the reins of government. He reigned 
 
ROYAL FAMILY OF SCOTLAND. 129 
 
 SO tyrannically, that the nobility recalled Edgar, third son, but the eldest 
 surviving, of the late king Malcolm ; who being assisted by William Rufus, 
 recovered his inheritance and shut Donald up in prison, where he died. 
 This prince was the first in Scotland who was anointed with consecrated 
 oil. His mother St Margaret obtained this favour from pope Urban II. 
 In those days no public change or affair of importance could be under- 
 taken without the pope's consent. He died in 1109, and was succeeded by his 
 brother Alexander I., called the Strong, who died without issue, after a 
 peaceful reign of seventeen years, in 1126. To him succeeded his brother 
 David I. who married Matilda, daughter and sole heiress of the earl of 
 Cumberland, Northumberland, and Huntingdon : by this alliance these earl- 
 doms fell to the crown of Scotland, under homage to that of England. 
 By the countess of Huntingdon he had issue only one son, Henry, who died 
 during his father's lifetime, but who left three sons, Malcolm, William, and 
 David ; and three daughters, Adama, Margaret, and Matilda. After a reign 
 of twenty-nine years, David I. died in 1151, and was succeeded by his grand- 
 son Malcolm IV., surnamed tlie Maiden from his chastity ; and never having 
 been married, he died in 1163, and was succeeded by his brother, William 
 the Lion, who died in 1214, and was succeeded by his son Alexander II. At 
 the age of nine years, he married Joane, daughter of Richard I. of England? 
 by whom he had no issue ; after her death he married Mary, daughter of the 
 earl of Gowry, by whom he had one son. This king reigned thirty-five years, 
 and died in 1 249 ; his son Alexander III. mounted the throne, and married 
 Margaret of England, daughter of Henry III., by whom he had two sons 
 and one daughter; the sons, Alexander and David, died during their father's 
 lifetime. Margaret of Scotland, his daughter, married the king of Norway, 
 and had issue one daughter, commonly called the Maid of Norway, who was 
 declared successor to the crown. Alexander III., a wise and valiant prince, 
 died in 1283, leaving the crown to this infant. On his death a regency 
 was formed and the Maid of Norway brought home, but she sickened and 
 died, and left the kingdom a prey to almost tlie greatest calamity that can be- 
 fall a kingdom, especially in a rude and warlike age — a disputed succession. 
 As we before noticed, the earldom of Huntingdon was brought to the 
 crown of Scotland by the marriage of David I. to Matilda, countess in her 
 own right of Huntingdon, whose only son, Henry, prince of Scotland, dying 
 before his father, his two sons, Malcolm and William, succeeded to the throne, 
 of whom the line failed in the person of Alexander III. David, the young- 
 est son of Henry, became earl of Huntingdon, and left two daughters, Mar- 
 garet and Isabella of Huntingdon. Margaret the eldest daughter, married 
 John Baliol, earl of Galloway, whose son without doubt was the true 
 heir to the crown ; Isabella of Huntingdon married Robert Bruce, earl 
 of Carrick, had a son also of the same name, Robert Bruce, who 
 again had the celebrated Robert the Bruce, lord of Annandale, who 
 
130 
 
 ROYAL FAMILY OP SCOTLAND. 
 
 being grandson of the youngest^ pretended to have a precedency to his 
 cousin, John Baliol, who was the son of the e/c?e*/ daughter. Besides these 
 two, there were other ten competitors for the crown. Unhappily for the 
 peace and tranquillity of the nation, the competitors agreed to submit their 
 claims to the arbitration of Edward I. of England, at whose mercy the 
 Scottish nation was now laid prostrate ; Edward summoned the barons of 
 the north of England, amongst whom were Baliol and Bruce, with all the 
 Scottish clergy and nobility to meet him at Norham castle in Northumber- 
 land, where Edward openly asserted his supremacy over the crown of Scot- 
 land as lord paramount. The candidates were mute with astonishment at 
 this unexpected usurpation ; at length one more courageous than the rest, 
 replied " that concerning this claim of feudal supremacy over Scotland, no 
 determination could be made ; while the throne was vacant." Edward was 
 not of a temper to bear this procrastination, and sternly answered, " by 
 holy Edward whose crown I wear, I will vindicate my just rights, or perish 
 in the attempt." A day, however, was granted for consultation, which was 
 extended to three weelis, as the candidates could not come to any agree- 
 ment. Over-awed by his power or won by his bribes, the competitors, to 
 their eternal disgrace, recognised Edward I. as lord paramount of Scotland. 
 The umpire decided in favour of John Baliol, who swore fealty to Edward, 
 and was crowned at Scone in the year 1292. John was compelled to do 
 homage to Edward, and to answer to appellants in the courts at London, 
 and there not by his advocate, but in person ! Notwithstanding the liumili- 
 ating degradation in which Edward held the Scottish king, the latter seems 
 to have governed the kingdom with great prudence, and moderation j 
 but indignant at the insults daily offered to himself and the independence 
 of his kingdom, John renounced his allegiance and declared war against 
 England. Edward defeated Baliol and took military possession of the king- 
 dom, sent him and his son Edward prisoners into England, and declared 
 the crown forfeited to its lord paramount in the year 1296. After a 
 long protracted and gallant warfare, Robert the Bruce gained the decisive 
 battle of Bannockburn ; and thereby seated himself securely on the Scottish 
 throne. The battle was fought on the 24th June, 1314, and for ever vin- 
 dicated the independence of the kingdom. On the 26th April, 1315, parlia- 
 ment assembled at Ayr, and solemnly recognised Robert's title to the crown, 
 and swore allegiance to him and his heirs j and to prevent the horrible 
 calamities which the late disputed succession had occasioned to the country, 
 they settled the order of the descent of the crown. Robert married first, 
 Isabella, daughter of Donald, earl of Marr, by whom he had a daughter, 
 Marjory, who married Walter Stewart, and " by that knot" brought the 
 crown into that illustrious family. His second wife was Elizabeth, daughter 
 of Aymer de Burgh, earl of Ulster, by whom he had three daughters, 
 Margaret, Matilda, and Elizabeth ; and one son, David, by whom he was 
 
ROYAL FAMILY OF SCOTLAND. 131 
 
 succeeded. The succession as settled at the parliament at Ayr was to run 
 in David and his heirs, and failing him, prince Edward Bruce, king Ro- 
 bert's brother, and the heirs male of his body, — he died without issue, before 
 the king, — failing these, Marjory Bruce, married to Walter great steward 
 of Scotland, and her heirs, whether male or female. In 1329, David II. 
 succeeded to the throne ; he married Jane of England, daughter of Edward 
 III., by whom he had no issue ; at her death he married Margaret Logie, 
 daughter of Sir John Logie, by whom he had no issue. He died 22nd 
 February, 1371 ; and was succeeded by his nephew Robert Stewart, son 
 of his eldest sister Marjory, according to the order of the succession set- 
 tied by Robert Bruce and the three estates of parliament. 
 
 Before continuing tlie descent of the crown, we will give a brief account 
 of the origin of the illustrious house of Stewart. Banquo and his son Fleance, 
 mentioned by Shakspeare in his tragedy of Macbeth, were powerful thanes 
 of Lochaber, and ^' bore their faculties so meekly," and conducted themselves 
 with such prudence and public virtue, that they rose to considerable emi- 
 nence in the reign of " the gracious Duncan :" after whose murder, and 
 the usurpation of Macbeth, that cruel and crafty tyrant planned the mur- 
 der of them both ; he succeeded in cutting off the father, but Fleance escap- 
 ed and took refuge in England, and afterwards in Wales, where he mar- 
 ried the prince's daughter : unfortunately the name of this prince is not 
 given. By this Welsh princess he had a son named Walter, sumamed Ban- 
 quo. This Walter returned into Scotland on the downfall of Macbeth, and 
 the restoration of tlie right line, " and fought valiantly for his king against 
 the island rebels and the savages of Scotland." In recompense for his 
 extraordinary services, he was created great steward, and treasurer of the 
 royal household. In which capacity, he served the crown with so much 
 fidelity and integrity, that the surname of Stewart was bestowed upon him 
 and all his posterity : he was also exalted to the rank of an earl. His son 
 and successor, Allan Stewart, went to the holy land under the duke of Lor- 
 raine and Robert duke of Normandy, son of William the Conqueror. He 
 was succeeded by his son Alexander Stewart, whose son Walter Stewart di- 
 vided the family into two distinct branches, in the persons of his two sons, 
 Alexander and Robert Stewart. 
 
 Robert, the youngest son, married the heiress of Crookston, from whom 
 are descended the ancient earls and dukfes of Lennox, and the barons of 
 Darnley. Of Alexander, the eldest son, descended John and James Stewart, 
 of whom descended the earls of Athol and Buchan, Inverness, and others. 
 Athol bore the full arms of Banquo, the patriarch of the family. 
 
 John Stewart, the eldest son of Alexander, the second of the name, left 
 but one daughter, Jane Stewart, who married the earl of Bute ; and of this 
 marriage sprang Walter Stewart, third of the name, who married Marjory 
 Bruce, daughter of Robert I. Majory died before her father ; but her son 
 
132 ROYAL FAMILY OF SCOTLAND. 
 
 Robert Stewart succeeded to the crown by the title of Robert II., on the 
 demise of David Bruce without issue of either sex. 
 
 Many circumstances conspired to augur prosperity to Robert II.'s reign. 
 Tlie family of Baliol relinquished their just pretensions to the throne ; 
 Edward the III. was old, and indifferent about resuming his pretensions to 
 the supremacy usurped by his grandfather over the crown of Scotland j Ro- 
 bert himself was in the full vigour of his age at the period of his accession, and 
 the father of a numerous family. While a subject and steward of the 
 kingdom, Robert received a papal dispensation to enable him to espouse Eli- 
 zabeth the daughter of Adam Muir of Rowallan ; and by her he had four 
 sons, John, Walter, Robert, and Alexander, and several daughters. Eliza- 
 beth his wife died before his accession, and he married Euphemia Ross, 
 daughter of the earl of Ross, by whom he had two sons, David and Walter, 
 and a daughter, whom he bestowed after his accession on a son of the earl of 
 Douglas. Robert II. and his queen Euphemia, were crowned at Scone by 
 the bishop of Aberdeen, in the year 1372. Old age and bodily infirmities 
 rendered Robert IT. unequal to the cares of government, and prince John, 
 his eldest son, being lame, in consequence of a kick on the thigh from an 
 unruly horse, and unfit for exertion, he appointed Robert earl of Fife, 
 whom he also created duke of Albany, regent of the kingdom, into whose 
 hands he resigned the whole power of the state. The king died in his cas- 
 tle of Dundonald, in the month of April, in the year 1390, in the seventy- 
 fifth year of^his age and the nineteenth of his reign. 
 
 John, earl of Carrick, succeeded to the crown on the death of Robert 
 II., the first of the dynasty of the Stewarts. He married Anabella Drum- 
 mond, who with himself was solemnly crowned at Scone, the 15th August, 
 1390. On his accession, he was persuaded to adopt the name of Robert 
 III., because the misfortunes of the house of Baliol had rendered his name 
 odious to his subjects, and the superstition of the times induced them to 
 think that the name was fatal to the kingdom. Besides, his great-grand- 
 father, the ever-memorable and heroic Bruce, had shed a lustre round the 
 name of Robert, which rendered that name dear to the nation. The in- 
 firmity already noticed, and a corresponding indolence, compelled Robert 
 III. to continue the duke of Albany at the head of government. The 
 king's eldest son Robert, duke of Rothsay, was married to a daughter 
 of Archibald the grim, earl of Douglas, after having been engaged to 
 marry a daughter of the earl of March. The guilty ambition of the duke 
 of x\lbany induced him to murder his nephew, the heir apparent of tlie 
 crown, which he did by the cruel and lingering death of starvation, in the 
 castle of Falkland. Robert became alarmed for the safety of his sui*viving 
 son James ; he regarded Albany with abhorrence and dread, as the enemy 
 of the lives of his children, as the murderer of his son, and yet as being 
 too potent for punishment, or even for removal from the dangerous height 
 
ROYAL FAMILY OF SCOTLAND. 133 
 
 to which he had attained. His second son James was too young to guard 
 his own life against his uncle's arts, if Albany should aspire to the crown. 
 Trembling under these apprehensions, he secretly determined to send the 
 young prince to the court of France, where he might prosecute his studies, 
 and find protection in the court of a faithful ally. At the command of 
 the king, therefore, Sinclair earl of Orkney, secretly prepared, with a 
 suitable number of attendants, to conduct the young prince to France. 
 They sailed, but alas ! they fell in with an English ship of war, who cap- 
 tured their vessel, and carried the prince with his attendants prisoners into 
 Flamborough head, contrary to all the rules of war, for at the time a truce 
 existed between the nations. The news of this disaster filled up the cup of 
 his afllictions, and the good old man died of grief at his castle of Rothsay, 
 in the isle of Bute, in 1406, and sixteenth year of his reign. 
 
 The king's death made no alteration in the government ; it was still ad- 
 ministered by the duke of Albany as regent, and the rude nobles yielded 
 him an outward obedience ; nevertheless, every one lived in his own castle, 
 in a state of perfect independence. James the first still continued a 
 prisoner in England, and Albany made no eflforts to procure his release. 
 At length, however, the regent died in the year 1419, and was buried at 
 Dunfermline, " the sacred storehouse of his ancestors." His eldest son 
 Mordac succeeded him as regent ; a weak man, but who made no eflTort to 
 redeem his sovereign, who still continued to languish in captivity, where 
 he might have died, but for one of those trifles which the providence of 
 God makes subservient to his own purposes. Mordac had a favourite 
 falcon, which his eldest son Walter, a man of violent and ungovernable 
 temper, had often solicited his father in vain to bestow upon him. At 
 last the ungracious youth, resolved that his father should not enjoy what 
 he refused to his importunities, snatched the falcon from his father's wrist 
 and wrung its neck before his eyes. This excited the most violent pas- 
 sion in the old man, and he instantly vowed to recall his imprisoned so- 
 vereign, in revenge of his son's insolence. The angry resolution of the re- 
 gent fortunately concurred with the earnest desire of the people, who 
 had with one accord turned their eyes toward England and their captive 
 sovereign. An embassy was accordingly despatched into England to ne- 
 gotiate his release. The ministers of Henry VI. during his minority were 
 happily well disposed to listen to proposals for James's freedom. One hun- 
 dred thousand merks partly paid, and partly promised, with the security of 
 some of the young nobility, procured his release from captivity. Dur- 
 ing his imprisonment, James himself had impressed his captors with the 
 most favourable expectations of his talents and virtues, and persuaded 
 them that he was cordially attached to their country, their arts and man- 
 ners, and devoted to their political interests. 
 
 Before leaving England, James married Jane Beaufort, daughter of the 
 
134 ROYAL FAMILY OF SCOTLAND. 
 
 iluke of Somerset, and in name of her dowry one half of the ransom was 
 remitted. James and his queen were conducted to the borders of his own 
 kingdom by cardinal Beaufort, the queen's uncle, and the earl of Somerset, 
 her brother. He was received with transports of joy by his people. He 
 was met at Scone by the prelates, nobles, and commons of the kingdom, 
 who were summoned to attend a parliament, and where he was solemnly 
 crowned by Trail, archbishop of St Andrews, and placed on the throne by 
 his cousin the duke of Albany. James was in the twenty- seventh year of 
 his age when he thus sat down m peace on the throne of his fathers, in the 
 year of grace one thousand four hundred and twenty-four. By Jane 
 Beaufort he had twin sons, born in October, 1430, Alexander and James ; 
 the former died in infancy. By her he had also six daughters. The lady 
 Margaret of Scotland was married to the Dauphin of France, afterwards 
 Lewis XI. Eleanor married Sigismund, archduke of Austria. The third 
 daughter married the count of Zealand ; the fourth, the duke of Bretagne ; 
 the fifth, the earl of Huntly ; and the sixth, the earl of Morton. On 
 the night of the 21st February, 1437, James was treacherously murdered 
 while at supper, by the earl of Athol and seven otlier accomplices, after 
 wounding Iiis queen, who exposed her person to their daggers, in defence 
 of her husband and sovereign. 
 
 James II. succeeded to the throne at the early age of seven. The estates 
 of the kingdom appointed Sir Alexander Livingston of Callander, regent 
 of the kingdom, and the chancellor, Sir William Crighton of Crighton, tu- 
 tor to the king. In his fifteenth year, James married Mary, daughter of 
 the duke of Guelders, by whom he had three sons ; James, prince and stew- 
 ard of Scotland, Alexander duke of Albany, and John earl of Marr ; and 
 two daughters, — Marj-, who married James Hamilton earl of Arran, and 
 Cecilia. James espoused the side of the usurping house of Lancaster ; and 
 in prosecution of their war with the house of York, James laid siege to 
 the castle of Roxborough, which appears to have been then in the hands of 
 the partisans of York, and was there killed by the bursting of a cannon, a 
 fragment of which wounded him so severely on the thigh, that he died al- 
 most immediately on the spot, in the year 1460, the thirtieth year of his 
 age and the twenty-fourth of his reign. 
 
 James III. was only seven years of age when his father's death placed 
 him on the throne, and plunged the kingdom into all the miseries conse- 
 quent on the disputes and intrigues of rival factions. James married Mar- 
 garet, daughter of Christiern king of Denmark, Sweden, and Norway ; who 
 brought with her as a marriage portion the cession, on the part of Denmark 
 of all its claims to tribute from the crown of Scotland on account of the 
 Hebridian isles, and to the feudal superiority of the Orkney and Shetland 
 islands. James was more attached to the arts of peace, than was consistent 
 in the rude notions of the period with the kingly dignity. The nation 
 
I 
 
 ROYAL FAMILY OF SCOTLAND. 135 
 
 were apt to make comparisons, disadvantageous to the character of the 
 sovereign, between him and his brothers, Albany and Marr, which excited 
 his jealousy ; to which horrible passion the earl of Marr fell a victim, and 
 Albany saved himself by fortifying himself in the castle of Dunbar. He fled 
 into France, where he married the duchess of Boulogne, by whom he had 
 a son, who was afterwards regent of Scotland, James roused himself from 
 his peaceful pursuits and showed tliat he possessed both courage and con- 
 duct. A party of his nobles rebelled against him ; and getting possession of 
 his eldest son, prince James, they defeated the king in a desperate battle 
 at Torwood m Stirlingshire. James fled at full speed; and his horse, sud- 
 denly startled at some object, leapt over the Carron and threw his rider. He 
 was carried into the miller's house of Bannockburn, and there treacherously 
 murdered by a partisan of the rebels, who recognized the fallen monarch, on 
 the 11th June, 1488, in the-twenty-ninth year of his reign and the thirty- 
 sixth of his age. Besides his successor, James left two sons, Alexander 
 duke of Ross, and John earl of Marr, and one daughter. 
 
 James IV. was proclaimed at Linlithgow by the rebel army which had 
 defeated and murdered his father; but the barons who had been loyal 
 to James III. mustered a new force, and carried the bloody shirt worn by 
 the late king on the point of a spear. These were defeated with great 
 slaughter, and the kingdom gradually submitted to the sovereignty of the 
 young king, who at the time of his accession was in his fifteenth year, and a 
 youth of great promise. James, assuming the title of the laird of Ballen- 
 geich, would often disguise himself in the humble garb of a beggar, or 
 gaberlunzie man, and wander unknown through the kingdom, inquiring 
 into the conduct of his ofiicers, and listening to the opinions and comments 
 of even the lowest of his people concerning the character of their king. But 
 above all, the diversions of the tournament, that mimic representation of 
 war, were especially agreeable to his magnificent taste, and the generous gal- 
 lantry of his spirit. His fame as a chivalrous knight spread all over Europe ; 
 and the most accomplished knights, proud to distinguish their prowess in 
 arms, resorted to the court of Holyrood ; in every knightly art James 
 excelled almost all his contemporaries. James sent an embassy to the 
 court of England, to solicit the hand of the princess Margaret, eldest daugh- 
 ter of Henry VII., which was readily bestowed, and the marriage celebrated 
 by proxy in the cathedral of St Paul's. Henry accompanied his daughter 
 a considerable way on her journey, the earls of Surrey and Northumber- 
 land, with a numerous train of ladies, accompanied her into Scotland. James 
 met her in the Lammermoor ; and in a church there, the actual marriage of 
 the parties took place : a happy marriage, which introduced an English 
 influence into the councils of Scotland, which entirely extirpated the bane- 
 ful councils of France, and was the immediate means of consolidating two 
 nations formed by nature to be but one people. James terminated his 
 
136 ROYAL FAMILY OF SCOTLAND. 
 
 eartlily cjireer on the fatal field of Flodden, on the 9th September, 1513, in 
 the thirty-ninth year of his age, and the twenty-fourth of his reign ; leaving 
 two infant sons, James prince of Scotland, and Alexander duke of Ross 
 who died soon after his father. 
 
 At his accession to the throne, James V. was only seventeen months 
 old. The first effects of the terror occasioned by their defeat at Flodden, 
 was to constitute the dowager queen Margaret regent of the kingdom, in or- 
 der to propitiate the wrath of Henry VIII. Margaret, however, was young 
 and beautiful, and surrounded by the impetuous young nobility let loose from 
 paternal restraint by the slaughter of their fathers at the last fatal battle. 
 Archibald Douglas, now earl of Angus, persuaded Margaret to become his 
 wife, without consulting the estates of the kingdom, or her brother Henry. 
 This rash step naturally excited the jealousy of the nobility, who viewed 
 with anxious jealousy, the sudden elevation of one of their own equals to 
 the supreme power. The party who favoured the interests of France, 
 proposed the recall of the son of tlie late duke of Albany from France, 
 and to commit the regency of the kingdom, and the tuition of its infant 
 sovereign to his care. He arrived, and governed with a stern impartiality; 
 but insurrections and conspiracies drove him out of the kingdom, when 
 Margaret and her husband again acquired the reins of government ; the 
 enemies of Angus and his royal wife soon concurred in again inviting Al- 
 bany to return and assume the regency. Among Angus's most implacable 
 enemies was now his own wife, stimulated by jealousy ; and besides, she her- 
 self had formed a new attachment in the person of Stewart, brother of the 
 lord Ochiltree. On the return of Albany, she induced him to solicit for her, 
 at the venal court of Rome, a divorce from her husband, whom she now most 
 cordially hated. At the age of twelve years, James assumed the adminis- 
 tration of the government, and Albany finally took his departure for France. 
 Angus seized the person of the king, and usurped the government, from 
 whose custody at Falkland the young king escaped, some years after- 
 wards, and being instantly attended by those of the nobility who were loyal 
 to his person, again assumed the government. He created his mother's 
 husband Henry Stewart, lord of Methven. James sailed round the whole 
 coast of his kingdom, and was the only prince who ever set foot on the 
 Shetland islands. He went to France in quest of a bride, and there espous- 
 ed Magdalene of France, daughter of Francis I., who died on the fortieth 
 day after her arrival at Holyrood house. He married again Mary of Lor- 
 raine, daughter of Claudius of Lorraine, duke of Guise, and widow of the 
 duke of Longueville, in the year 1530, — a lady in the prime of her years and 
 of distinguished beauty, whom James had himself seen and admired when 
 he visited France. Of this marriage was born prince James in 1538, and 
 prince Arthur, born in 1540 ; both of whom died in one day : also Mary, 
 born in 1542. During this king's reign the Reformation commenced, and 
 
ROYAL FAMILY OF SCOTLAND. 137 
 
 many horrid cruelties were practised on those who came out of the spiri- 
 tual Sodom of the Romish communion. James the V. died on the 13th 
 December, 1542, and left his kingdom to a long minority, and an infant 
 daughter of a week old, of whose birth when he was informed on his death 
 bed, he said, "Alas! the kingdom came with a maiden, and it will go with 
 one;" he turned himself in his bed and never spoke again. 
 
 Mary Stewart succeeded to the throne on the seventh day of her birth, 
 and after much intrigue the earl of Arran was chosen regent ; but cardi- 
 nal Beaton gaining the ascendency in the kingdom, he induced Arran to 
 resign in favour of the dowager, queen Mary. She had the address to gain 
 the consent of her parliament to send her daughter Mary to France, to be 
 educated with the view of marrying the Dauphin of France, — to the great 
 disappointment of the court of London and the English party in Scotland, 
 who were anxious to have espoused her to Edward VI. She married the 
 dauphin, afterwards Francis II. ; who dying without issue, she returned a 
 widow to Scotland in the year 1561 , and afterward married her own cousin, 
 Henry Darnley. To account for their consanguinity, it will be necessary 
 to return to the widow of James IV., the daughter of Henry VII. After 
 king James's death she married Archibald Douglas, earl of Angus, to whom 
 she had a daughter, lady Margaret Douglas. This lady, the niece of Henry 
 VIII., was educated at his court, and was by him at an early age given in 
 marriage to the earl of Lennox. This nobleman was in the next degree after 
 the Hamiltons allied to the crown of Scotland, and at that time was an exile 
 on account of his unsuccessful exertions to promote the interest of Eng- 
 land. In consequence of this marriage, the children of Lennox and lady 
 Margaret Douglas, were next after the house of Hamilton, the collateral 
 heirs of the crown of Scotland, and next after Mary herself collateral heirs 
 of the crown of England. The eldest son of Lennox and lady Margaret 
 Douglas was Henry lord Darnley. He was the queen's cousin, and they were 
 married in the chapel royal, Holyrood house, by the dean of Restalrig, on 
 the 29th July, 1565, and the name of Henry was by proclamation associat- 
 ed with the queen in all the written deeds of the government. The issue of 
 this marriage was an only son, James duke of Rothsay, wlio was born in 
 Edinburgh castle on the 19th June, 1566 ; and in consequence of the rebellion 
 of her subjects, was even in infancy exalted to sit upon her throne. The 
 earls of Moray, Morton, and Both well, entered into a conspiracy to destroy 
 the king consort, which they accomplished by blowing him up in the Kirk- 
 o-field with gunpowder, on the 9th February, 1567. By the confession of 
 all the conspirators as recorded in history, Mary is entirely and triumph- 
 antly acquitted of having had any previous knowledge, or participation in 
 this atrocious deed. Afterwards Bothwell seized Mary's person and carried 
 her off to his castle of Dunbar, where he first committed a rape upon her 
 person, and next compelled her to accept himself in marriage, all the while 
 
 s 
 
138 ROYAL FAMILY OF SCOTLAND. 
 
 keeping her a close prisoner. No sooner had Bothwell's guilt been crowned 
 with the desired success, than those very nobles who had recommended him 
 to Mary as a proper husband, combined to overthrow his power, and having 
 treacherously seized Mary near Musselburgh, they confined her in Loch- 
 leven castle, with the ill disguised intention of taking away her life. From 
 thence she escaped, and her friends drawing together, fought a pitched battle 
 with the rebels, at Langside hill, near Glasgow, under the command of the 
 regent Moray, her bastard brother. Her forces were defeated and she herself 
 escaped to Dundrinnan Abbey in Galloway, from whence she unhappily 
 put herself into the power of her remorseless enemy Elizabeth, who, against 
 all the laws of nations and humanity, kept her a close prisoner for more 
 than eighteen years, and then cruelly murdered her by a judicial sentence 
 and decapitation in the year 1587, in the forty-fifth year of her age, and 
 also of her reign. 
 
 At the age of one year, James, duke of Rothsay was elevated by the 
 rebel barons to the throne of his mother, not yet vacant, by tlie title of 
 James VI. The kingdom was miserably governed by four regents till the 
 year 1578, when Morton was disgraced ,>■ and James assumed the reins of 
 government, and soon after Morton terminated his guilty career on the 
 scaffold. James was chaste in his conduct, and had not disgraced his 
 youth by any of those vices which had characterized many of his predeces- 
 sors, and his people became exceedingly anxious that he should form a matri- 
 monial alliance. A splendid embassy was accordingly despatched to the 
 court of Denmark, and Anne the Danish monarch's second daughter was 
 granted to his wishes. Storms however delayed the arrival of his expected 
 bride, but impatient of delay he sailed to Denmark, and consummated his 
 marriage. In one of his letters to chancellor Maitland he good humour- 
 edly says, " we spend our time here drinking and driving ower, just as we 
 do at hame." After spending some months there in festivity, he returned 
 in safety and was joyfully received by his affectionate people. 
 
 Queen Elizabeth of England died on the 24th March, 1603, hi the 
 seventieth year of her age, and forty- fifth of her reign. A little before 
 her death, the lord keeper inquired who she willed to be her successor : 
 her answer was, *' None but my cousin, the king of Scots." James was 
 accordingly proclaimed king, first at the palace of Whitehall, and after- 
 wards at the cross in Cheapside. On the third day after, the news was 
 brought by Sir Robert Cary. The privy council of England, in their let- 
 ter to James, acknowledged that " to his right the lineal and lawful succes- 
 sion of all our late sovereign's dominions doth justly and only appertain : 
 wherein we presume to profess this much, as well for the honour, which 
 will thereby remain to our posterity ; as for your majesty's security of a 
 peaceable possession of your kingdoms, that we had never found, either of 
 those of the nobility, or of any other of the estates of this realm, any divid- 
 
THE KING'S DUTIES 139 
 
 ed humour about the receiving and acknowledging your majesty to be the 
 only head, that must give life to the present maimed body of this king- 
 dom, which is so happy as with an universal consent to have received one 
 sole, uniform, and constant impression of bright blood, as next of kin to our 
 sovereign deceased, and consequently by the laws of this realm, true and 
 next heir to her kingdoms and dominions. x\nd rest assured, that our 
 tender and loyal affections towards you our gracious sovereign, shall be 
 ever hereafter seconded with all faith, obedience, and humble service, 
 whicli shall be in our power to perform, for maintaining that which we 
 liave begun with the sacrifice of our lives, lands, and goods, which we 
 with all our other means do here humbly present at your majesty's feet." 
 
 His daughter Elizabeth, born 19th x\ugust, 1596, married at London 
 on the 14th February, 1613, Frederick, elector palatine, and king of 
 Bohemia, by whom he had a numerous family. Her youngest daughter 
 Sophia married Earnest Augustus, duke of Brunswick and Hanover, of 
 whom are descended the present royal family of Great Britain. 
 
 THE KING'S DUTIES AND PREROGATIVES. 
 
 *' The king's name is a tower of strength ;" and an apostle who wrote 
 by inspiration, informs us, not only of the obedience due by subjects to their 
 princes, but of the duties incumbent on princes towards their subjects ; so 
 that protection and allegiance are reciprocal duties incumbent on botli tlie 
 governors and the governed. " Let every soul be subject to the higher 
 powers. For there is no power but of God ; the powers that be are or- 
 dained of God. Whosoever, therefore, resisteth the power, resisteth tlie 
 ordinance of God ; and they that resist shall receive to themselves damna- 
 tion. For rulers are not a terror to good works, but to the evil. Wilt 
 thou then not be afraid of the power ? do that which is good, and thou 
 shalt have praise of the same. For he is the minister of God, a revenger 
 to execute wrath upon him that doeth evil. Wherefore, ye must needs be 
 subject, not only for wrath, but also for conscience sake. For, for this 
 cause pay ye tribute also ; for they are God's ministers, attending contin- 
 ually on this very thing. Render therefore to all their dues ; tribute to 
 whom tribute is due ; custom to whom custom j fear to whom fear ; hon- 
 our to whom honour." (Romans xiii.) 
 
 It is a maxim in law that protection and subjection are reciprocal. 
 The subject owes the duties of obedience " for conscience sake :" and the 
 king's principal duty in return is to govern the people whom God has 
 committed to his charge, according to the known laws of the land, and to 
 
140 
 
 THE KING'S DUTIES 
 
 the utmost of his power to cause law and justice to be executed hi mercy. 
 In the claim of Right, the coronation oath was ordained to be taken by the 
 king or queen in the presence of all the people, who on their part, 
 reciprocally take the oath of allegiance to the sovereign. The following 
 is the oath as taken at the king's coronation. 
 
 The archbishop or bishop shall say : Will you solemnly promise and swear 
 to govern the people of this kingdom of England, and the dominions there- 
 unto belonging, according to the statutes in parliament agreed on and the 
 laws and customs of" the same ? The king or queen shall say : I solemnly 
 promise so to do. 
 
 Archbishop or bishop : Will you to your power cause law and justice, 
 in mercy, to be executed in all your judgments ? King or queen : I will. 
 
 Archbishop or bishop. Will you to the utmost of your power maintain the 
 laws of God, the true profession of the gospel, and the protestant reformed 
 religion established by the law ? And will you preserve unto the bishops 
 and clergy of this realm, and to the churches committed to their charge, 
 all such rights and privileges as by law do, or shall appertain unto them 
 or any of them ? Ki?}g or queen : All this I promise to do. 
 
 AJler this the king or queen^ laying his or her hand on 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. 
 
 At his coronation the king does not swear to protect tlie establishment 
 of Scotland, because fee had done so as his very first act after his accession. 
 The twenty-fifth article of the union expressly provides " that the sovereign 
 in the royal government of Great Britain, shall in all time coming, at his 
 or her accession to the throne, swear and subscribe that they shall invio- 
 lably maintain and preserve the aforesaid settlement of the true protestant 
 religion, with the government, worship, discipline, rights, and privileges of 
 this church of Scotland, as above established by the laws of this kingdom 
 in prosecution of the claim of right.'' 
 
 The king of England is very highly exalted above his subjects ; and the 
 constitution regards his person as so sacred, that no jurisprudence upon 
 earth has power to coerce him. No suit even in civil matters can be 
 brought against the king, for no court can have authority over him. The 
 king being above the law, is not the effect of mere visionary theory or of 
 idle superstition and folly, as many absurdly imagine. For, as already 
 mentioned, it is the king's fiat that makes the laws by the advice of the 
 great council of the nation, and consequently the creator must be superior 
 to the thing created ; besides, the liberty and safety of the meanest subject 
 is better secured by the free agency of the executive, than if the king was 
 a mere public servant, like the president of the United States of America. 
 
 The king is declared to be the supreme head of the realm in matters 
 both civil and ecclesiastical, and of consequence inferior to no man upon 
 
AND PREROGATIVES. 141 
 
 earth, dependent on no man, accountable to no man. Judge Bracton says, 
 '* Rex est vicai'ius, et minister Dei in terra : omnis quidem sub eo est, et 
 ipse sub nullo, nisi tantum sub Deo." 
 
 The king is called the father of the country, not that he begat his 
 people, or that he must be an older man than all his subjects ; but because 
 Adam, the first king as well as the first man, begat his own subjects, and 
 when the eldest son succeeded to his father's authority he succeeded also 
 to his title of father, and hence the style of father is given to this day to 
 all kings, which points remarkably to the original of government or king- 
 ship in the time of man's innocency in Eden, which God first instituted 
 there, both in nature and by positive command. And therefore we owe 
 to our sovereign the same obedience which Adam's children or subjects 
 paid to him ; for God's commands and institutions descend through all 
 ages to the end of time, and government is of the same necessity and ob- 
 ligation now, as it was when it was first imposed by God himself, and it is 
 equally " his ordinance " now, as it was then. 
 
 If government and its succession was ordained by God, then it is as na- 
 tural that it should succeed in the same track, as for the sun to proceed in 
 his diurnal course ; and consequently, when elective monarchies and re- 
 publics usurp the place of '' God's ordinance" — that is an hereditary mon- 
 archy or fathership — they are eccentric from, and breaches of the primi- 
 tive institution ; nevertheless, obedience is due to such when a better right 
 cannot be established, as a bastard is a man, although he be unlawfully be- 
 gotten, and it would be as much murder to kill a bastard, as to kill one 
 lawfully born ; so a republic is a government though a bastard one, and is 
 to be obeyed till a better right to the government is established. 
 
 The king *' is the minister of God for good" to his people, and conse- 
 quently he is as much bound to exercise his high authority agreeably to 
 the divine will for the benefit of his people, as they are to obey him " in 
 all godly fear, knowing whose authority he hath," namely God's. But 
 whilst the king is a minister for good, he is also " a revenger, to execute 
 wrath upon him that doeth evil ;" therefore if we compare the benefits, 
 which an obedient people derive from their governors, with the evils which 
 a few turbulent men may suffer from the worst governors, we shall find 
 that the general good far outweighs the particular evils beyond all com- 
 parison. For if the government is deranged, then every man's hand is 
 let loose upon his neighbour, the strong oppress the weak, and a more gen- 
 eral tyranny will follow, than by the greatest severity of any king. It fre- 
 quently happens, that the most rigid governors are the strictest justiciaries ; 
 and, on the other hand, kings may be so gentle and easy, as to let factions 
 rise and distract the country, which generally occasions more mischief than 
 the worst administration. The evil of too great clemency was exemplified in 
 Charles I. who suffered factions to get beyond control ; and rebellious 
 
142 THE KING'S DUTIES 
 
 people always denominate those princes tyrants, whom they destroy, as 
 the ruin and bloodshed of the people always accompanies the destruction 
 of the sovereign, whose reign is consequently called bloody and tyrannical. 
 Hence the severe reigns of Henry VIII. and Elizabeth have been called 
 glorious, because their severity kept down faction and preserved peace. 
 Throughout all history, the mildest and best kings have been always most 
 rebelled against by their subjects. But let kings be as bad as they are 
 often called, still their tyranny must end some time ; in them " life's co- 
 py's not eterne j" and to change our governors at the caprice of the mob, 
 is not worth the expense of blood and treasure which rebellion and usur- 
 pation has always cost the nation. The usurpation of Henry IV, cost 
 England a hundred years of carnage and civil war, and which was not 
 composed till the royal line of York regained their inheritance. The 
 usurpation of Cromwell cost the three kingdoms more blood and treasure 
 than all her foreign wars from the Conquest to his time. 
 
 It is a wise maxim in English law, that " the king can do no wrong :" 
 not that he is personally impeccable, but because he derives his authority 
 from God alone, as the laws of England acknowledge ; and, therefore, that 
 excellent maxim means only that he is not accountable to his subjects for 
 his public actions j but his ministers or counsellors are responsible for the 
 advice they may give him : and under God, this is our greatest security ; 
 for if the king could be controlled or coerced, then he would be no longer 
 sovereigJi, for whoever had the power to coerce or control him would be 
 in fact the sovereign j but his councillors being responsible with their lives 
 and fortunes, are put under the necessity of giving good and just counsel. 
 Judge Bracton says, " that the king does no wrong, neither will he amend 
 that wrong either on petition or remonstrance ;" and he decides that 
 " sufficit ei pro poena, that it is sufficient punishment to him (the king,) 
 that he is to expect God to be an avenger, for he has no superior on earth," 
 which was Bracton's opinion of this maxim. The maladministration of 
 the king cannot be of such mischievous effects to the people as their own 
 anarchy ; and in the case of a personal incapacity in the prince to admin- 
 ister the government, such as infancy, lunacy, or any other cause, the 
 three estates of parliament appoint a regent, who governs in his name and 
 by the authority of the incapable prince. When Uzziah was struck with 
 leprosy, so that he was cut off from all society and lived " in a several 
 Iiouse," his eldest son Jotham " was over the king's house, judging the 
 people of the land," but did not succeed to the crown till his father's 
 death, (2 Chron. xxvi. 21, 23.) And after Nebuchadnezzar had been 
 turned into a beast for seven years, when his reason was restored, *' his 
 lords and his councillors sought unto him, and he was established in his 
 kingdom," (Dan. iv. 36.) The line of succession was not broken, nor 
 the people discharged from their allegiance, on account of the madness of 
 
AND PREROGATIVES. 143 
 
 their prince, and it is the general supposition that the case of Nebuchad- 
 nezzar was madness. The confession of Faith of the legal church of Scot- 
 land, asserts " that difference of religion, or even infidelity, does not take 
 away the right of a king to his crown." 
 
 The king's prerogatives are of three kinds, such as regard his royal 
 character, his royal authority, and his royal income or revenue. The 
 term royal dignity implies, not only those powers and emoluments which 
 he possesses jure coronce, but likewise other attributes of a transcendent 
 nature, which elevate him above all other men, so that he has no superior 
 upon earth. Some of these prerogatives, especially those that relate to 
 justice and peace, are so essential to sovereignty that they are for ever in- 
 herent in the crown, and are equally inseparable from it as the sun-beams 
 from the sun. And every British king, as he is Debitor justitice to his 
 people, so is he in conscience, obliged to defend and maintain all the rights 
 of the crown in possession, and to endeavour the recovery of those, of 
 which the crown may have been stript. On the other side, it is equally his 
 duty to protect the just liberties of his subjects, according to the golden 
 rule of the pious Charles I. that " The king's prerogative is to defend 
 the people's liberties, and the people's liberties to strengthen the king's 
 prerogative." 
 
 As sovereign, he is " the Lord's anointed," " the minister of God," 
 and as such, inferior to no man, dependent on no man, and accountable 
 to no man on earth, as the laws fully recognise : the crown belongs to 
 him alone, without any partners, and is under no subjection to any one. 
 The statute of 16th Rich. II. c. 25, asserts " that the crown of England 
 hath been so free at all times, that it hath been in no earthly subjection, 
 hut immediately subject to God, in all things touching the regality of the 
 same crown, and to none other ;" — ^" whereas by sundry divers old authen- 
 tic histories and chronicles, it is manifestly declared and expressed that this 
 realm of England, is an empire, and so hath been accepted in the world, 
 governed by one supreme head and king, having the dignity and royal 
 estate of the imperial crown of the same:" 24th Hen. VIII. also 1 Eliz., 
 then surely, to neither a foreign nor domestic tribunal ; for if the pope, 
 as he formerly claimed, had any supremacy, then the king would not be 
 *' supreme," and so there would be an end of British independence, equally 
 as if a domestic tribunal could try, or coerce him, which would immedi- 
 ately put an end to the government. " Such," says an excellent writer, 
 *' was the effect of the mock trial of king Charles I. That unhappy prince, 
 firmly, consistently, and constitutionally denied the authority of the court 
 that condemned him. But in vain did he plead his own rights and the rights 
 of his people, before a tribunal erected by domestic violence, which, tram- 
 pling upon all laws, human and Divine, completely overturned the constitu- 
 tion. If, indeed, the king invade the rights of the subject, either by private 
 
144 
 
 THE KING'S DUTIES 
 
 injuries, or public oppressions, the law has provided a remedy in both 
 cases. 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 oppression, 
 as, politically speaking, he can do no wrong, impeachments and indict- 
 ments will lie against those evil councillors and wicked ministers, without 
 whose bad advice and criminal assistance he could not misuse his power, 
 or act in contradiction to the known laws of the land." 
 
 Another political attribute of the king is his absolute perfection. The 
 ancient and fundamental maxim, " that the king can do no wrong," does 
 not mean that he is not subject to the same passions and infirmities as 
 other men ; but that the constitution has prescribed no mode by which he 
 can be personally amenable for any wrong that he may actually commit. 
 And, in fact, the inviolability of the king is essentially necessary, not for 
 his own private 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 splendour, 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 
 instance, 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 misled 
 and ill advised, and thereupon such grant is rendered void. The two 
 houses of parliament, however, have a constitutional right of remonstrat- 
 ing 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 decency and the freedom of debate, the members 
 usually consider these speeches and messages, as the composition of the 
 ministers of state, and therefore have always thought themselves at liberty 
 to examine any proposition in them with freedom. This privilege, how- 
 ever, of examining the personal acts of the sovereign, belongs exclusively 
 to the two liouses of parliament, and is even there to be exercised with all 
 due respect. 
 
 In further pursuance of this principle, the law also determines that in 
 the king there can be no negligence, and therefore no delay will bar his 
 right : for the law intends that the king is always busied for the public 
 good, and therefore has not leisure to assert his right within the time limit- 
 ed to subjects. In the king also there can be no stain or corruption of 
 blood ; for if the heir to the crown were attained of treason or felony, and 
 afterwards the crown should descend to him, this would ijjso facto, purge 
 
AND PREROGATIVES. 145 
 
 the attainder. Neither can the king in judgment of law, as king, ever be 
 a minor or under age j and, therefore, his royal grants and assents to acts 
 of parliament are good, though he has not m his natural capacity attained 
 the legal age of twenty-one. The very necessity of appointing a protec- 
 tor, guardian, or regent, is sufficient to demonstrate the truth of that 
 maxim of common law, that there is no minority in the king : and there- 
 fore that he hath no legal guardian. 
 
 Perpeiuily is another kingly attribute. The king never dies. Because 
 on the natural death of the sovereign the crown descends to his heir, with- 
 out any interregnum or interval whatever, who becomes immediately the 
 sovereign : and the source and fountain of all political power, throughout the 
 kingdom, as all magistrates, and men in authority, derive their power, 
 privileges, and authority from him. In the exercise of his royal prero- 
 gatives, the king is absolute and irresistible, and accountable to no man ; 
 nevertheless, his advisers may be called to a severe account for their bad 
 advice. In his intercourse with other nations, his public acts are the acts 
 of the' whole community, he being the head and chief of the nation ; what- 
 ever is done without his concurrence and authority, being mere private 
 acts, are of no authority. He alone can empower and send ambassadors, 
 who represent his person, and are entitled to the same courtesy and re- 
 spect as himself. He alone can make treaties, leagues, and alliances with 
 foreign powers, and these are binding on the whole nation ; his ministers, 
 by whose advice and instrumentality he makes those treaties, being an- 
 swerable for their evil counsel. The whole power of the sword is in the 
 king alone, he alone declares war, and makes peace ; his advisers being 
 still answerable for their advice. 
 
 At home his prerogative is exercised, in allowing or rejecting all 
 acts of parliament which he considers proper or improper to be passed 
 into a law. It is incorrect to say that the king has only a negative voice, 
 all the negatives in the world could never make an affirmative ; it is true 
 he seldom exercises his negative, but he always exercises an affirmative, 
 when he consents to enact what his councillors in parliament advise him 
 to make a law. Notwithstanding the many and important concessions of 
 the crown to parliament, it has never conceded the power of the sword, 
 which is wholly lodged in the king : he is generalissimo of all the naval 
 and military array of the kingdom, and by his prerogative he raises and 
 regulates the fleets and armies. The danger of trusting the power of the 
 sword in the hands of parliament, was exemplified in the reign of the first 
 Charles, and to remedy this, and annex it irrevocably to the crown, the 
 statute 13 Ch. II. was enacted, which declares that " Forasmuch as within 
 all his majesty's realms and dominions, the sole, supreme government, com- 
 mand and disposition of the militia, and of all forces by sea and land, and 
 of all forts and places of strength, is, and by the laws of England ever 
 
 T 
 
14-6 THE KING'S DUTIES 
 
 Avas, the undoubted right of his majesty, and liis royal predecessors, kings 
 and queens of England, and that both or either of the houses of parlia- 
 ment cannot, nor ought to pretend to the same ; nor can, nor lawfully may 
 raise or levy any war, offensive or defensive, against his majesty, his heirs 
 or lawful successors ; and yet the contrary thereof hath of late years been 
 practised, almost to the ruin and destruction of this kingdom ; and, during 
 the late usurped government, many evil and rebellious principles have been 
 instilled into the minds of the people of this kingdom, which, unless pre 
 vented, may break forth to tlie disturbance of the peace and quiet thereof." 
 (Act 13 Ch. II. c. 6.) 
 
 By his prerogative the king can erect beacons, lighthouses, and sea- 
 marks, whenever and wherever he chooses ; and if the owner of the land, 
 or any other person, shall destroy or remove any of these, he is liable to 
 be amerced in £100, and in failure of payment he is ipso facto outlawed. 
 The king can prevent any one from leaving the kingdom, by issuing his 
 writ under the great seal, or by commanding parties to return if abroad ; 
 disobedience to either is a high contempt of the king's prerogative, for 
 which the offender's lands may be seized till his return ; after which he is 
 liable to fine and imprisonment. 
 
 The king is the sole judge of all his subjects, which is fully acknowledged 
 in the statute 24 Henry VIII. c. 12., where he is called the "one su- 
 preme head and king — he being also instituted and furnished by the good- 
 ness and sufferance of Almighty God, with plenary^ ivhole and entire 
 power, pre-eminence, authority, prerogative, and jurisdiction to render 
 and yield justice, and final determination, to all manner of folk, resiants 
 or subjects within the realm, in all causes, matters, debates, and conten- 
 tions," &c. But acting as a judge in his own proper person, would be 
 both physically impossible and also derogatory to his dignity ; he distributes 
 justice, therefore, to all his subjects, through the channels of the differen*^ 
 courts of justice in the kingdom, which are erected solely in his name, ar 
 by his authority, justice being rendered entirely in his name, under his se- 
 and executed by his ofliicers alone, and by none other. 
 
 In the beginning of his long and glorious reign, George III. rendered 
 the judges independent, in order to prevent the possibility of their being 
 corrupted or biased in the administration of justice ; he declared " that 
 he looked upon the independence and uprightness of the judges, as essen- 
 tial to the impartial administration of justice ; as one of the best securities 
 of the rights and liberties of his subjects ; and as most conducive to the 
 honour of the crown." Accordingly he gave his consent to an act of par- 
 liament, continuing the judges in their office notwithstanding the demise 
 of the crown ; and they cannot be removed but by the joint address of both 
 houses of parliament to the king. This is an act of concession from the 
 crown, that cannot be too highly praised, as tlie perversion of justice Is 
 
 r 
 
AND PREROGATIVES. 147 
 
 thus made almost next to impossible. English courts of law are neither 
 executive nor legislative, they are entirely judicial, which renders them pre- 
 eminently conservators of the liberties of the people. 
 
 '• AVe see then," says an excellent writer, " that this single act of our 
 (late) gracious sovereign, in recommending to his parliament so important 
 a measure, has been the means of fortifying our liberties with a very strong 
 additional barrier. This alone would have endeared the king (George III.) 
 to his subjects, had he given no subsequent proofs of his earnest desire to 
 extend the civil and religious liberties of his people. This patriotic act of 
 the king is unexampled in history. What was the great charter of our 
 liberties, but the involuntary grant of a cowardly tyrant ! What were the 
 religious advantages obtained at the Reformation, but the unforeseen ef- 
 fects of the violence of a capricious monarch ! What were the civil privi- 
 leges secured during the reigns of the Stewarts, but the reluctant conces- 
 sions of princes who could not resist their parliaments I What, in short, 
 yfere the blessings of the glorious Revolution, but the conciliating mea- 
 sures of a monarch whose title rested entirely on the national feelings ! 
 But in this measure we behold the unbiased, disinterested conduct of a 
 wise and virtuous king, solicitous to provide for the happiness of his 
 subjects." 
 
 After the flood it pleased God to enter into a covenant with Noah, the 
 universal sovereign, and of course through him with all sovereign princes, 
 giving him the power of life and death ; " whoso sheddeth man's blood, 
 by man shall his blood be shed, for in the image of God made he man," 
 (Gen. ix. 6.) And as mercy is one of the attributes of the Most High, in 
 token of which " I do set my bow in the cloud — and the bow shall be in 
 the cloud, and I will look upon it, that I may remember the everlasting 
 covenant between God and every living creature," so it is also the bright- 
 est jewel in every earthly crown, the prerogative of pardoning offences 
 being alone its incommunicable right. At his coronation the king takes 
 a solemn oath in presence of his assembled people, to administer justice in 
 mercy. And although he cannot personally distribute justice, yet by a 
 fiction of law, he is always present in every court. The judges are the 
 mirror by which his image is reflected : and hence the king, by a similar 
 fiction, is said to possess ubiquiti/. 
 
 To issue proclamations is also a prerogative of the crown. Not that a 
 proclamation makes a new law or dispenses with an old one, or that they 
 are any further binding on the subject, than as they promulgate any known 
 or acknowledged law. It is a standing law, that the king can prohibit 
 any one from leaving the kingdom ; a proclamation, therefore, laying an 
 embargo on all shipping in time of war, has the full force and efficacy of 
 an act of parliament. But in the time of peace a proclamation, laying an 
 embargo on vessels laden with wheat, is not legal. Proclamations which 
 
^^^ THE KING'S DUTIES 
 
 are contrary to the laws, are not binding. Hence when James II. prose- 
 cuted the seven bishops for presenting their humble petition, showing the 
 illegality of complying with his assumed dispensing power, they were fully 
 acquitted. 
 
 The king is the source and fountain of all honour, and the nobility of 
 every rank and degree hold their patents from the crown alone. When 
 titles of honour are conferred, they are either expressed by writ or letters 
 patent, as in the creation of peers or baronets ; or by corporeal investiture, 
 as in the creation of a knight. The king also grants privileges to indi- 
 viduals, such as place and precedence, and charters to corporations. He 
 is also the arbiter of commerce, by settling the establishment of public 
 marts and fairs, with their tolls or customs. He also regulates weights 
 and measures. To him "tribute is due — for he is God's minister, at- 
 tending continually on this very thing ;" it is his authority alone which 
 gives value and currency to " Caesar's image and superscription." His 
 proclamation gives value and currency to foreign coin j and he may at 
 any time cry down any coin, and render it no longer current. 
 
 The stronger the prerogatives of the crown, the greater is the people's 
 security ; and it is absolutely necessary that the crown should be free from 
 all coercion, for whosoever can coerce the king can oppress any other 
 man, and the chief end of government is to preserve the people from each 
 other's oppression. Where the king has not sufficient authority to pro- 
 tect the weak from the tyranny of the strong, when his prerogative is les- 
 sened and reduced, then the liberty and freedom of the people is destroyed, 
 and they are let loose like Ishmael, every man against his neighbour, to 
 pillage and oppress, which is the greatest and most wretched tyranny. 
 Both a king and a parliament may be guilty of acts of tyranny and op- 
 pression ; but such will neither be of so long continuance nor so fatal in 
 their effects ; for a king has bowels of compassion, God keeps his heart in 
 his own hand, he cannot seek the destruction of his own country, for in 
 that he would involve himself Every member of a parliament has a stake 
 in the country, and therefore can never desire its ruin ; and although both 
 king and parliament may, and have done, extravagant things, yet they will 
 stop short of its utter desolation, and remedies may be applied. But dif- 
 ferent and contending factions have neither mercy nor compassion, but each 
 seeks the ruin and extermination of the other, and neither thinks itself safe 
 but in the destruction of the adverse faction. When the prerogatives of the 
 crown are so weakened that it has not strength or authority to quell and keep 
 down factions, but suffers them to contend together, then there is tyranny, 
 — tyranny in the abstract, where there are no bowels of compassion, but 
 blind fury and enmity, totally indifferent and reckless of consequences. 
 And if factions divide the nation, which they almost always do, each appeal- 
 ing to the passions of the multitude, then the calamity becomes national 
 
COUNCILS. 149 
 
 and the government is swallowed up, and the liberties of the people perish. 
 This worst of all tyrannies is occasioned by the weakness of the crown, and 
 is only prevented by the strength and vigour of the prerogative. There 
 are no limits to the tyranny of factions, but there is a legal constitutional 
 defence against the tyranny of a king, which he can only execute by his 
 ministers, who are answerable with their heads and fortunes for their 
 mal- administration. Therefore let the crown be strong that faction may 
 be weak ; for the people's best security, under God, is in the honour and 
 power of the king. Let the crown flourish, and its enemies be clothed 
 with shame and confusion ! 
 
 The titles assumed by the sovereigns of the Norman line were. King of 
 England, Lord of Ireland, Duke of Normandy and Aquitaine, and Earl 
 of Anjou ; on the conquest of France by Henry V., he added King of 
 France. From the reign of James VI. of Scotland and I. of England, to 
 the close of the eighteenth century, the king hath been styled. King of 
 Great Britain, France, and Ireland, Defender of the Faith. Those of the 
 line of Hanover have added the titles, Dukes of Brunswick and Lunen- 
 burg, Arch- treasurer of the holy Roman empire, and electors of Han- 
 over. Since the peace of 1815, George IV. was elevated to the rank of 
 king of Hanover. The arms of England, Scotland, and Ireland, are 
 borne by William IV. quarterly, to which is added an escutcheon of the 
 royal arms of Hanover, surmounted by a regal crown. 
 
 Although nothing of the duchy of Aquitaine now remains to our mon- 
 archs but the name, yet at their coronation one of the officers of the crown 
 stands upon the right side of the throne, holding a ducal cap and sword of 
 state, in memory of the conquest of that duchy. 
 
 The titles of the heir-apparent to the throne are Prince of Wales, Duke of 
 Cornwall and Rothsay, Earl of Chester, Electoral Prince of Brunswick and 
 Lunenburg, Earl of Carrick, Baron of Renfrew, Lord of the Isles, Great 
 Steward of Scotland, and Captain- General of the Artillery Company.* 
 
 COUNCILS. 
 
 In order to assist his majesty in the discharge of the duties of his office, 
 the maintenance of his dignity, and the exertion of his just prerogative, 
 several councils have been appointed for the king to advise with. 
 
 First. The high court of parliament, which is the great council of the 
 nation, and of which we have already treated. 
 
 * Blackstone's Commentaries, — Custancc on the Constitution. 
 
130 COUNCILS. 
 
 Second. The peers of the realm are, by their birth-right, Iiereditary 
 councillors of the crown, and the king may at any time call them together 
 to give him their advice in all matters of importance to the realm, either 
 during the sitting of parliament, or when there has been no parliament in 
 being, which, says Blackstone, has been their principal use. The law 
 maintains that peers are created for two reasons: 1. ad consulendum, as 
 councillors ; 2. ad defendendum regem, for tlie king's defence : on which 
 account in law they are entitled to certain great and high privileges, even 
 when no parliament is sitting ; because it contemplates that they are al- 
 ways assisting the king with their council for the public good, or preserving 
 the realm in safety by their prowess and valour. As hereditary councillors, 
 they enjoy the privilege of being exempt from arrest for debt, because the 
 law supposes that the peers are always engaged in the king's service, either 
 in council or war. Any peer, in his character of an hereditary councillor 
 of the crown, can demand an audience of the king, to lay before him, with 
 decency and respect, such matters as he shall consider of importance to 
 the state. 
 
 Third. A third council is the judges of the courts of law, but only in 
 legal cases. 
 
 Fourth. But the king's principal council is his Priv^ Council, which, 
 by way of eminence, is generally called ihe Council ; and this, according to 
 Sir E. Coke, is a noble, honourable, and reverend assembly of the king, 
 and such as he wills to be of his privy council in the king's court or 
 palace. The king's will is the sole constituent of a privy councillor, which 
 also regulates their number, which anciently was only twelve ; afterwards, 
 the number was so considerably increased, that it Avas found to be inconve- 
 nient for secrecy and despatch, and therefore Charles II. in tlie year 1679, 
 limited its number to thirty, whereof fifteen were to be the principal of- 
 ficers of state, who should be councillors virtute officii, and the other fifteen 
 were composed of ten lords and five commoners of the king's choosing. 
 But at present the number is indefinite. The lord president of the coun- 
 cil has precedence next after the lord chancellor and lord treasurer. The 
 Cabinet Council consists of the king's ministers for the time being, and 
 who are summoned to consult on the important and arduous discharge of 
 the executive government. 
 
 Privy Councillors are made by the king's nomination, without either 
 patent or grant, and on taking the necessary oaths, they become immedi- 
 ately councillors, during the lifetime of the king who appoints them, but 
 subject to removal at his discretion. Any natural-bom subject of England 
 is capable of being a member, after taking the oaths, <mdi formerly the test 
 for the church's security. 
 
 The oath of oflfice, which consists of seven articles, distinctly points out 
 a privy councillor's duties, — 1. To advise the king according to the best 
 
COUNCILS. 151 
 
 of his cunning and discretion. 2. To advise for the king's honour, and 
 good of the public, without partiality, through affection, love, meed, 
 doubt, or fear. 3. To keep the king's council secret. 4. To avoid cor- 
 ruption. 5. To help and strengthen the execution of what shall be there 
 resolved. 6. To withstand all persons who would attempt the contrary ; 
 and lastly, in general, to observe, keep, and do all that a good and true 
 councillor ought to do to his sovereign lord. 
 
 The pojver of the Privy Council is to inquire into all offences against 
 the government, and to commit the offenders to safe custody, in order to 
 take their trial in some of the courts of law. But their jurisdiction does 
 not extend to the punishment of the culprit, but merely to make inquiry, 
 and he is entitled to his habeas corpus. In plantation and admiralty 
 causes which arise without the jurisdiction of the kingdom, and in matters 
 of lunacy or idiocy, being a special flower of the prerogative, although 
 they may eventually involve questions of extensive property, the privy 
 council still continues to have cognizance, being the court of appeal in 
 such cases, or rather the appeal lies to the king's majesty himself in 
 council. Whenever questions arise between two provinces in America, or 
 elsewhere, concerning the extent of their charters, or the like, the king in 
 council exercises original jurisdiction, on the principles of the feudal sove- 
 reignty. And, likewise, when any person claims an island or a province 
 in the nature of feudal principality, by grant from the king or his ances- 
 tors, the determination of that right belongs to his majesty in council ; and 
 from all the dominions of the crown, excepting Great Britain and Ireland^ 
 an appellate jurisdiction in the last resort is vested in the privy council, 
 which usually exercises its judicial authority in a committee of the whole 
 council, who hear the allegations and proofs, and afterwards make their 
 report to his majesty in council, by whom the judgment is finally given. 
 
 Abstracted from their honorary precedence, the privileges of privy 
 councillors consist principally in the security which the law has given them 
 against attempts and conspiracies to destroy their lives. By statute 3d 
 Hen. VII. c. 14, if any of the king's servants, of his household, conspire or 
 imagine to take away the life of a privy councillor, it is felony, even al- 
 tliough no attempt be made. But the statute 9th Anne, c. 16, goes far- 
 ther, and enacts, that if " any person shall unlawfully attempt to kill, as- 
 sault, strike, or wound any privy councillor in the execution of his office, 
 shall be a felon, without benefit of clergy." This statute was made in 
 consequence of the daring attempt of the Sieur Guiscard to stab Mr Bar- 
 ley with a pen-knife, when under examination by the privy council. 
 
 Privy councillors have honorary precedence next after knights of the 
 garter. The dissolution of the privy council depends entirely on the king's 
 pleasure, and he may, whenever he thinks proper, discharge any particu- 
 lar member, or the whole council, and appoint another. Formerly it was 
 
152 OF COURTS IN GENERAL. 
 
 dissolved, ipso f ado, on the king's demise, as deriving its wliole authority 
 from him. But now, to prevent the inconvenience arising from there not 
 being any council in being at a new accession, it was enacted, 6th Anne, 
 that the privy council shall continue for six months after the demise of the 
 crown, unless sooner determined by the successor. 
 
 Such, says a late writer, are the duties and privileges of the privy 
 council ; and whoever duly reflects, that, upon their wisdom, diligence, 
 and integrity, the interests and happiness of the whole kingdom very much 
 depend, will see the propriety of our public petition, " that God would be 
 pleased to bless the lords of the council, and all the nobility, with grace, 
 wisdom, and understanding." * 
 
 OF COURTS IN GENERAL. 
 
 The wrongs and injuries which men commit upon each other are vari- 
 ous and grievous, even in the most civilized states ; and these would be still 
 more numerous, were it not for the salutary restraints of human laws. 
 Such wrongs and injuries are either of a civil or of a criminal nature. 
 Under the former description may be reckoned any species of trespass, 
 nuisance, waste, subtraction, or disturbance, and likewise all kinds of in- 
 juries proceeding from, or affecting, the crown. 
 
 Under the latter are comprised all oflTences against God and religion ; 
 against the law of nations; against public justice; against the public peace; 
 against public trade ; against the public health and economy ; against the 
 persons, habitations, and property of individuals. Our limits will not ad- 
 mit of treating specifically of these several denominations of civil and cri- 
 minal offences. But this is the less necessary, inasmuch as every descrip- 
 tion and modification of offence is a breach of one or other of the Ten 
 Commandments ; which teach us our duty towards God, and our duty to- 
 wards our neighbour. We have no occasion to refer to law-books to as- 
 certain 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 wit- 
 ness. And if any man will but do unto others upon all occasions as he 
 would they should do unto him under similar circumstances, he will never 
 suffer any thing from the laws of England, which are constantly stretched 
 forth to protect him. It is sufficient then to remark, that "the law is not 
 made for a righteous man, but for the lawless and disobedient ;" that is, 
 only such are amenable to its tribunals, and liable to its penalties. " It 
 
 * Blackstone's Commentaries, — distance on the Constitution. 
 
'OF COURTS IN GENERAL, 153 
 
 must needs be that offences must come." There will always be the of- 
 fenders and the offended : but it is the voice of reason as well as of revela- 
 tion, that no man ought to decide in his own cause ; and it is the language 
 of the inspired volume, that " if one man sin against another, the judge 
 shall judge him." Every well-regulat«d government has its courts of law, 
 in which persons duly qualified and authorized preside, for the administra- 
 tion of justice. The institution is of divine appointment ; " Judges and 
 officers shalt thou make thee in ail thy gates, which the Lord thy God 
 giveth thee, throughout thy tribes : and they shall judge the people with 
 just judgment." (Deut. xvi. 18.) 
 
 A court is defined to be " a place where justice is judicially administer- 
 ed." The king is the sole executer of the laws, and it follows, that all 
 the courts of justice within the realm derive their power and authority 
 from him alone ; his consent to their existence being at all times either 
 expressed or implied. The law always contemplates the king's presence, 
 in all his courts, by a sort of fiction, but as that is in fact impossible, he 
 is represented there by his judges, whose power is merely an emanation of 
 the royal prerogative. 
 
 For the more speedy, universal, and impartial administration of justice 
 between subject and subject, the law has appointed a prodigious variety of 
 courts, some with a more limited, others with a more extensive jurisdic- 
 tion ; some constituted to inquire only ; others to hear and determine ; 
 some to determine in the first instance ; others upon appeal and by way 
 of review : all these in their turns will be noticed and described in their 
 respective places ; and I shall here only mention one distinction that runs 
 through them all : that is, that some of them are courts of record and 
 others ?ioi of record. A court of record is that where the acts, and judi- 
 cial proceedings are enrolled in parchment, for a perpetual memorial and 
 testimony. These rolls are called the records of the court, and are of 
 such high and supereminent authority that their truth is not to be called 
 in question. But if there appear any mistake of the clerk in making up 
 such record, the court will direct him to amend it. 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 discretionary power over the liberty and fortunes 
 of his fellow subjects. The courts-baron in every manor, and other in- 
 ferior jurisdictions, where the proceedings are not recorded or enrolled, 
 are courts nol of record. But as well their existence as the truth of the 
 matters therein contained, shall, if disputed, be tried and determined by a 
 jury. These courts cannot hold pleas of matters cognizable by the com- 
 mon law, unless they be under the value of 40*., nor of any forcible in- 
 jury whatsoever ; because they have not any process to arrest the defen- 
 dant's person. 
 
 u 
 
i54» OF COURTS IN GENERAL. 
 
 In every court there must be at least three constituted parts. The 
 Plaintiff, who complains of an injury done ; the Defendant, who is called 
 upon to make satisfaction for the injury ; and the judicial power which is 
 to examine into the fact, determine the law arising upon it, to ascertain 
 whether any injury has been done, and by its officers to apply the remedy. 
 In the higher courts the usual assistants are attorneys, and advocates, or 
 counsel. 
 
 An attorney at 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 at- 
 torney, 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 j and admit the best plea in his behalf 
 that any one in court can suggest. No one can practise as an attorney 
 in any court, but in that of which he is sworn an attorney j and as he en- 
 joys many privileges in that court, so he is also peculiarly subject to the 
 censure and animadversion of its judges. To enable an attorney to prac- 
 tise in the court of chancery, it is necessary that he be admitted a solicitor 
 therein. And none can act as attorneys at the quarter sessions, but such 
 as have been regularly admitted into some superior court of record : and 
 attorneys are subjected to various other regulations, by different statutes. 
 So early as the reign of Henry IV. (4. c. 18.) it was enacted, that all at- 
 torneys should be examined by the judges, and none be admitted but such 
 as were virtuous, learned, and sworn to do their duty. 
 
 Advocates, or, as they are commonly called, counsel^ are of two degrees, 
 barristers and sergeants. 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 six- 
 teen years' standing ; at which time they may be called to the honourable 
 state and degree of sergeants. Sergeants at law are bound by a solemn 
 oath to do their duty to their clients with fidelity and discretion. 
 
 His majesty's two principal counsel, are the attorney-general and solici- 
 tor-general, who may be either barristers or sergeants. The king's coun- 
 sel cannot be employed in any cause against the crown, without special 
 license ; hence they cannot publicly plead in court for a prisoner, or a de- 
 fendant in a criminal prosecution, without license, but which is never re- 
 fused. In obtaining it, however, an expense of nine pounds is incurred. 
 
 A custom has of late years prevailed, of granting letters patent of pre- 
 cedence to such barristers as the crown thinks proper to honour with that 
 mark of distinction ; whereby they are entitled to such rank and pre-audi- 
 ence as are assigned in their respective patents : sometimes next after the 
 
COURTS OF LAW AND EQUITY. 155 
 
 king's attorney-general, but usually next after his majesty's counsel then 
 being. These (as well as the queen's attorney and solicitor-general) 
 rank promiscuously with the king's counsel, and together with them sit 
 within the bar of the respective courts : but receive no salaries and are 
 not sworn ; and therefore are at liberty to be retained in causes against 
 the crown. All other sergeants and barristers indiscriminately (except in 
 the court of common pleas, when only sergeants are admitted) may take 
 upon them the protection and defence of any suitors, whether plaintiff or 
 defendant ; who are therefore called their clients, like the dependants before 
 the ancient Roman orators. These indeed practised gratis for honour 
 merely, or at most for the sake of gaining influence : and so likewise it is 
 established with us, that a counsel can maintain no action for his fees ; 
 which are given as a mere gratuity and not as a salary or hire, and which 
 a counsellor cannot demand without injuring his reputation ; the same is 
 also laid down with regard to the advocates in the civil law, whose ho?io- 
 r avium or gratuity was directed by a decree of the Senate not to exceed 
 in any case ten thousand sesterces, or about eighty pounds of English 
 money. And in order to encourage due freedom of speech in the lawful 
 defence of their clients, and at the same time to give a check to the un- 
 seemly licentiousness of venal and illiberal men, (some of whom, who would 
 prostitute their talents and acquirements to any cause, will insinuate them- 
 selves into the most honourable professions,) 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 cause in hand, and 
 suggested in their client's instructions, although it should prove alto- 
 gether a groundless reflection on another's reputation. But if they 
 should mention an untruth of their own invention, the injured party 
 may bring his action. By the statute of 3 Edward I., counsel may be 
 punished for collusion and deceit, with imprisonment 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 un- 
 heard of in these kingdoms. Indeed tlie wisdom and integrity of the British 
 courts are justly proverbial.* 
 
 COURTS OF COMMON LAW AND EQUITY. 
 
 Piepoudre The lowest, and at the same time the most expeditious 
 
 court of justice, known in England, is the court of piepoudre, so called 
 from the dusty feet of the suitors. It is a court of record, incident to 
 
 * GiisUuice, — Blackstonc. 
 
156 
 
 COURTS OF COMMON 
 
 every fair and market ; of which the steward of him who owns or has the 
 toll of the market, is the judge ; and its jurisdiction extends to administer 
 justice for all commercial injuries done in that very fair or market, and 
 not in any preceding one. So that the injury must be done, complained 
 of, heard, and determined, within the compass of one and the same day, 
 unless the fair continues longer. This court has cognizance of all matters 
 of contract that can possibly arise within the precincts of that fair or mar- 
 ket ; and the plaintiff must make oath that the cause of an action arose 
 there. From this court a writ of error lies, in the nature of an appeal to 
 the courts of Westminster, which are bound to issue writs of execution, 
 in aid of its process, after judgment, where the person or effects of the de- 
 fendant are not within the limits of this inferior jurisdiction. 
 
 The Court Baron, is a court incident to every manor in the king- 
 dom, to be holden by the steward within the manor. This court baron is 
 of a double nature ; one is a customary court, appertaining entirely to 
 the copyholders, in which their estates are transferred by surrender and 
 admittance, and other matters transacted relative to their tenures only. 
 The other is a court of law, and it is the court of the barons, by which 
 name the freeholders were sometimes anciently called : for that is held be- 
 fore the freeholders, who owe suit and service to the manor, the steward 
 being rather the registrar than the judge. 
 
 A Hundred Court is only a large court baron, being held for all 
 tlie inhabitants of a particular hundred, instead of a manor. The free 
 suitors are here also the judges, and the steward the registrar, as in the 
 case of a court baron. It is not a court of record ; but resembles the 
 former in all points, except that in point of territoiy it is of a greater 
 jurisdiction. But these courts are fallen into disuse with regard to the 
 trial of actions, because the causes are liable to be removed to the super- 
 ior court, and may also be reviewed by writ of false judgment. 
 
 The County Court is incident to the jurisdiction of the sheriff. It 
 is not a court of record, but may hold pleas of debt or damages under the 
 value of 40*. But as proceedings in these courts, are removable into the 
 king's superior courts, and as a writ of false judgment may be had, in 
 nature of a writ of error, bringing actions into this court has fallen into 
 disuse. 
 
 Common Pleas. — This court is sometimes called in law, the court of 
 common bench. The distribution of common justice between man and 
 man was thrown into so provident an order, that the great judicial officers 
 were made to form a check upon each other, the court of chancery issu- 
 ing all original writs under the great seal to the other courts ; the com- 
 mon pleas being allowed to determine all causes between private subjects, 
 the exchequer managing the king's revenue, and the court of king's bench 
 retaining all the jurisdiction which was not cantoned out to other courts, 
 
LAW AND EQUITY. 157 
 
 and particularly the superintendance of all the rest, by way of appeal, 
 and the sole cognizance of pleas of the crown, or criminal cases. For 
 pleas, or suits, are regularly divided into two sorts ; pleas of the crown, 
 which comprehend all criminal misdemeanors wherein the king, on behalf 
 of the public, is plaintiff — and commo7i pleas, which include all civil actions 
 depending between subject and subject. The former of these were the 
 proper object of the jurisdiction of the court of king's bench, the latter of 
 the court of common pleas ; which is a court of record, and is styled the 
 lock and key of the common law ; for herein only can real actions which 
 concern the right of freehold or the reality, be originally brought ; and 
 all other, or personal pleas, between man and man, are likewise here de- 
 termined J though in most of them the king's bench has also a concurrent 
 authority. The judges of this court are at present four in number, one 
 chief, and three puisne (pronounced puny) justices created, by the king's 
 letters patent, who sit every day in the four terms to hear and determine 
 all matters of law arising in civil causes, whether real, personal, or mixed 
 and compounded of both. Of these it takes cognizance, as well originally, 
 as upon removal from the inferior courts before mentioned. But a writ 
 of error in the nature of an appeal, lies from this court into the court of 
 king's bench. 
 
 Court op King's Bench. — This court is so called because the king 
 used to sit there in person, and the style of the court is still coram ipso 
 rege. It is the supreme court of common law in the kingdom ; consisting 
 of a chief justice and three puisne justices, who are by their office the 
 sovereign conservators of the peace, and supreme coroners of the land. 
 Yet, though the king himself used to sit in this court, and still is supposed 
 to do so, he did not determine any cause or motion, but by the mouth of 
 his judges, to whom he has committed his whole judicial authority. 
 
 The jurisdiction of this court is very high, and transcendent. It keeps 
 all inferior jurisdictions within the bounds of their authority, and may 
 either remove their proceedings to be determined here, or prohibit their 
 progress below. It superintends all civil corporations in the kingdom. 
 It commands magistrates and others to do what their duty requires, in 
 any case where there is no other specific remedy. It protects the liberty 
 of the subject, by speedy and summary interposition. It takes cognizance 
 of both criminal and civil causes j the former in what is called the crown- 
 side, or crown-office, the latter in the plea-side of the court. 
 
 For this court is likewise a court of appeal, into which may be remov- 
 ed, by writ of error, all determinations of the court of common pleas, and 
 of all inferior courts of record in England ; and to which, till lately, a writ 
 of error lay also from the court of king's bench in Ireland. Yet even 
 this so high and honourable court is not the dernier resort of the subject ; 
 for if he be not satisfied with any determination here, he may remove it 
 
158 
 
 COURTS OF COMMON 
 
 by writ of error into the house of lords, or the court of exchequer cham- 
 ber, as the case may happen, according to the nature of the suit, and the 
 manner in which it has been prosecuted. 
 
 The Court op Exchequer is inferior in rank, not only to the court 
 of king's bench, but to the common pleas also. It is a court, both of law 
 and equity, and is principally intended to order the revenues of the crown, 
 and to recover the king's debts and duties. Its name of exchequer, 
 (scaccarium,) arises from the chequered cloth, resembling a chess board, 
 which covers the table there j and on which, when certain of the king's 
 accounts are made up, the sums are marked afid scored with counters. It 
 consists of two divisions j the receipt of the exchequer, which manages the 
 royal revenue, and the court or judicial part of it, which is again sub- 
 divided 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 ones. Its primary and original business is to call the king's debt- 
 ors to account, by bill filed by the attorney-general ; and to recover any 
 lands, tenements, or hereditaments, any goods, chattels, or other profits or 
 benefits, belonging to the crown. For as all the oflficers and ministers of 
 this court have, like those of other superior courts, the privilege of suing 
 and being sued only in their own court, so also the king's debtors and 
 fai'mers, and all accomptants of the exchequer, are privileged to sue and 
 implead all manner of persons, in the same court of equity that they 
 themselves are called into : they have likewise the privilege to sue and im- 
 plead one another, or any stranger, in the same kind of common law ac- 
 tions (where the personality is concerned) as are prosecuted in the court 
 of common pleas. On the equity side of this court, the clergy have long 
 been used to exhibit their bills for non-payment of their tithes, in which case 
 the surmise of being the king's debtor is not a fiction, the clergy being 
 bound to pay him their first fruits and annual tenths. But the chancery 
 has of late years obtained a large share of this business. An appeal from 
 the equity side of this court lies 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 the determination there had, there lies, 
 in the last resort, a writ of error to the house of lords. 
 
 The High Court op Chancery is the last and most important 
 court in matters of civil property, of any of the king's supreme and 
 original courts of justice. The office of chancellor, or lord keeper, is at 
 present created by the mere delivery of the king's great seal into his cus- 
 tody : whereby he becomes, without writ or patent, an officer of the great- 
 est weight and power of any now subsisting in the kingdom j and superior 
 in point of precedency to every temporal lord. He is a privy councillor 
 by his office, and prolocutor of the house of lords by prescription. The 
 
LAW AND EQUITY. 159 
 
 appointment of all the justices of the peace throughout the kingdom be- 
 longs to him. Formerly he was usually an ecclesiastic, and presiding over 
 the royal chapel, he became keeper of the king's conscience, visitor, in the 
 king's right, of all hospitals and colleges of the king's foundation, and 
 patron of all the king's livings under the value of twenty marks per annum 
 in the king's books. He is the general guardian of all infants, idiots, and 
 lunatics, and has the general superintendence of all charitable uses in the 
 kingdom. And all this, over and above the vast and extensive jurisdiction 
 which he exercises in his judicial capacity in the court of chancery ; where- 
 in, as in the exchequer, there are two distinct tribunals, the one ordinary, 
 being a court of common law, and the other extraordinary, being a court 
 of equity. 
 
 The ordinary legal court is much more ancient than the court of equity. 
 Its jurisdiction is to hold plea upon a scire facias, to repeal and cancel 
 (hence the name cancellarius,) the king's letters patent, when made against 
 law, or upon untrue suggestions: and to hold pleas of petitions, mofi- 
 strans de droit, traverses of offices, and the like ; when he has been ad- 
 vised to do any act, or is put in possession of any lands or goods, in pre- 
 judice of a subject's right. On proof of which, as the king can do no 
 wrong, nor can he be supposed to intend to do any wrong, the law does 
 not question but that he will immediately redress the injury, and refers 
 that conscientious task to the chancellor, the keeper of his conscience. This 
 court also holds pleas of all personal actions, when any officer or minister 
 of the court is a party. It might likewise hold pleas of partitions of lands 
 in coparcenary and of dower, when any ward of the crown was concerned 
 in interest, so long as the military tenures subsisted ; and it may also do 
 so now of the tithes of forest lands, when granted by the king, and claimed 
 by a stranger against the grantee of the crown ; and of executions on 
 statutes, or recognizances in nature thereof. But if any cause comes to 
 issue in this court, that is, if any fact is disputed between the parties, the 
 chancellor cannot try it, having no power to summon a jury, but must 
 deliver the record propria manu into the court of king's bench, where it 
 shall be tried by the country, and judgment shall be there given thereon. 
 And when judgment is given in chancery upon demurrer or the like, a 
 writ of error, in nature of an appeal, lies out of this ordinary court into 
 the court of king's bench ; for which reason very little is usually done on 
 the common law side of the court. 
 
 In this ordinary or legal court is also kept the officiu a justiciar, out of 
 which issue all original writs that pass under the great seal, all commis- 
 sions of charitable uses, sewers, bankruptcy, idiocy, lunacy, and tlie like; 
 and for which it is always open to the subject, who may there at any time 
 demand and have, ex debilo justicice, any writ that his occasions may call 
 for. These writs and their returns, were, according to the simplicity of 
 
160 
 
 COURTS OF COMMON 
 
 ancient times, originally kept in a hamper, in ha?iaperio, and the others 
 which relate solely to the crown, were preserved in a little sack or bag, 
 2w parva baga ; hence arises the distinction of the hanaper and petty bag 
 offices, which botli belong to the common law court in chancery. 
 
 But the extraordinary court, or court of equity, is now become the 
 court of the greatest judicial consequence. This distinction between law 
 and equity, as administered in different courts, is not at present known, 
 nor seems ever to have been known in any other country at any time. The 
 reason and necessities of mankind, arising from the great change in pro- 
 perty by the extension of trade and the abolition of military tenures, co- 
 operated in enabling many great men who have presided in chancery, to 
 build a system of jurisprudence and jurisdiction upon broad and rational 
 foundations. And the power and business of this court have now increas- 
 ed to an amazing degree. 
 
 From the court of equity in chancery, as from the other superior courts, 
 an appeal lies to the house of peers. But there are these differences be- 
 tween appeals from a court of equity, and writs of error from a court of 
 law : 1st, That the former may be brought upon any interlocutory mat- 
 ter, the latter upon nothing but only a definitive judgment : 2d, That on 
 writs of error the house of lords pronounces the judgment ; on appeals 
 it gives direction to the courts below to rectify its own decree. 
 
 Court of Exchequer Chamber. — This court has no original juris- 
 diction, but is simply a court of appeal, to correct the errors of other 
 jurisdictions. It was first erected in the reign of Edward III. to deter- 
 mine causes upon writs of error from the common law side of the court of 
 exchequer. It consists of the lord chancellor and lord treasurer, associat- 
 ing with themselves, the justices of the king's bench and common pleas. 
 In imitation of which a second court of exchequer chamber was erected by 
 statute in the twenty-seventh year of the reign of Elizabeth, consisting of 
 the justices of the common pleas, and the barons of the exchequer, before 
 whom writs of error may be brought to reverse judgments in certain sorts 
 originally begun in the court of king's bench. Also into the court of ex- 
 chequer chamber (which then consists of all the judges of the three superior 
 courts, and sometimes the lord chancellor also), such causes are occa- 
 sionally adjourned from the other courts, as the judges upon argument 
 find to be of great weight and difficulty, before any judgment is given 
 upon them in the court below. From all branches of this court of exchequer 
 chamber, a writ of error lies to the house of peers. 
 
 The House of Peers is the supreme court of judicature of the king- 
 dom, having at present no original jurisdiction over causes, but only upon 
 appeals and writs of error, to rectify any injustice or mistake of the law 
 committed by the courts below, and is in all causes the last resort, from 
 whose judgment no further appeal is permitted j but every subordinate 
 
LAW AND EQUITY. 161 
 
 tribunal must conform to their determinations, the law reposing an entire 
 confidence in the honour and conscience of the noble persons who compose 
 this important assembly, that they will make themselves masters of those 
 questions upon which they undertake to decide, and in all dubious cases 
 refer themselves to the opinions of the judges, who are summoned by writ 
 to advise them : since upon their decision all property must finally depend. 
 
 The Courts of Assize and Nisi Prius are derived out of, and 
 act as collateral auxiliaries to, the foregoing courts. They are composed 
 of two or more commissioners, who are twice in every year sent by the 
 king's special commission all round the kingdom, (except London and 
 Middlesex, where courts of nisi prius are holden in and after every term, 
 before the chief or other judge of the several superior courts, and except 
 the four northern counties, where the assizes are holden only once a-year,) 
 to try by a jury of the respective counties the truth of siich matters of 
 fact as are there under dispute in the courts of Westminster Hall. The 
 judges usually make their circuits in the respective vacations after Hilary 
 and Trinity terms. 
 
 The judges upon their circuits sit by virtue of five several authorities. 
 1st, The commission of the peace. 2d, A commission of oyer and terminer. 
 3d, A commission of general Jail delivery. 4th, A commission of assize 
 directed to the justices and sergeants therein named, to take, together with 
 their associates, assizes in the several counties ; that is, to take the verdict 
 of a peculiar species of jury, called an assize, and summoned for the trial 
 oi landed disputes. 5th, The last is that of ?iisi prius, which is a conse- 
 quence of the commission of assize, being annexed to the office of those 
 justices by statute, and it empowers them to try all questions of fact issuing 
 out of the courts at Westminster, that are then ripe for trial by jury. 
 These, by the course of the courts, are usually appointed to be tried at 
 Westminster, in some Easter or Michaelmas term, by a jury returned from 
 the county wherein the cause of action arises, but with this proviso, 7iisi 
 prius ; that is, ludess before the day prefixed, the judges of assize come 
 into the county in question. This they are sure to do in the vacations 
 preceding Easter and Michaelmas term, which saves much expense and 
 trouble. 
 
 ECCLESIASTICAL, MILITARY, AND MARITIME COURTS. 
 
 Besides the several courts just named, in which all injuries are redressed, 
 that fall under the cognizance of the common law of England, or that 
 spirit of equity which ought to be its constant attendant, there still remain 
 some other courts of a jurisprudence equally public and general, whicli 
 
 X 
 
162 ECCLESIASTICAL, MILITARY, 
 
 take cognizance of other species of injuries of an ecclesiastical, military, 
 and maritime nature. 
 
 In briefly recounting the various species of ecclesiastical courts, or, as 
 they are often styled, courts christian, we shall begin with the lowest, and 
 ascend gradually to the supreme court of appeal. 
 
 The Archdeacon's Court is the most inferior court in the whole 
 ecclesiastical polity. In the archdeacon's absence, it is held before a judge 
 of his own appointment, who is called his official ; and its jurisdiction is 
 sometimes in concurrence with, sometimes in exclusion of, the bishop's court 
 of the diocese. i\n appeal, however, lies from this court to that of the 
 bishop. 
 
 The Consistory Court of every diocesan bishop is held in their 
 several cathedrals, for the trial of all ecclesiastical causes arising within 
 their respective dioceses. The bishop's chancellor or his commissary, is 
 the judge ; and from his sentence an appeal lies to the archbishop of each 
 province respectively. 
 
 The Court of Arches is a court of appeal belonging to the arch- 
 bishop of Canterbury, and the judge is called the dean of the arches ; be- 
 cause he anciently held his court in the church of St Mary le bow, thougli 
 all the principal spiritual courts are now holden at doctor's commons. 
 His proper jurisdiction is only over the thirteen peculiar parishes belong- 
 ing to the archbishop in London ; but the office of dean of the arches, 
 having been for a long time united with that of the archbishop's principal 
 official, he now, in right of the last mentioned office, (as does also the 
 principal official of the archbishop of York,) receives and determines ap- 
 peals from the sentences of all inferior ecclesiastical courts within the pro- 
 vince. And from him an appeal lies to the king in chancery, that is, to a 
 court of delegates appointed under the king's great seal, as supreme head 
 of the English church. 
 
 The Court of Peculiars is a branch of, and annexed to, the court 
 of arches. It has a jurisdiction over all those parishes dispersed througli 
 the province of Canterbury in the midst of other dioceses, which are ex- 
 empt from the ordinary jurisdiction, and subject to the metropolitan only. 
 All ecclesiastical causes, arising within these peculiar or exempt jurisdic- 
 tions, are originally cognizable by this court, from which an appeal lies to 
 the king in chancery. 
 
 The Prerogative Court is established for the trial of all testamen- 
 tary causes, where the deceased has left bona notabilia within two differ- 
 ent dioceses. In which case the probate of wills belongs to the archbishop 
 of the province, by way of special prerogative. And all causes relating 
 to the wills, administrations, or legacies of such persons, are originally 
 cognizable in this court, before a judge appointed by the archbishop, 
 called the judge of the prerogative court, from wliom an appeal lies to 
 
AND MARITIME COURTS. 163 
 
 the king in chancery. The granting of letters of administration, in 
 the event of a person dying intestate, and the probates of Will, has 
 ever belonged to bishops, not only in England but in all countries 
 wherever Christianity has been established j nor is there any other court 
 in which wills can be regularly proved, except in some particular boroughs 
 where the chief magistrate may do it by prescription. Our reason for 
 intrusting this power to bishops was, that whatever was given to pious uses 
 might be faithfully applied ; and those wills where such charities are 
 given, are called by the canonists privileged wills ; for by the canon law, 
 what would annul another will, has no effect on these. In former times 
 Ordinaries had the power of applying some part of the goods of a person 
 dying intestate to pious uses, especially if he were a clergyman ; and by 
 the statute of Edward II., " the profits of the lands of idiots, if there be 
 any at the time of their deaths remaining, more than was necessary for the 
 use of them and their families, shall be distributed for their souls, by the 
 advice of the Ordinary." 
 
 The great Court of Appeal in all ecclesiastical causes, viz. 
 the court of delegates appointed by the king's commission under his 
 great seal, and issuing out of chancery, to represent his royal person, and 
 hear all appeals made to him by virtue of 25 Henry VIII. This commis- 
 sion is frequently filled with lords spiritual and temporal, and always with 
 judges of the courts at Westminster and doctors of the civil law. But in 
 case the king himself be a party in any of these suits, the appeal does not 
 then lie to him in chancery, which would be absurd, but by statute 24 Henry 
 VIII. to all the bishops of the realm, assembled in the upper house of 
 convocation. 
 
 A commission of review is sometimes granted in extraordinary cases, to 
 revise the sentence of the court of delegates, when it is apprehended they 
 have been led into a material error. But it is not a matter of right which 
 the subject may demand, ex dehitojusticice, but entirely a matter of favour, 
 and which has been accordingly often denied. 
 
 These are now the principal courts of ecclesiastical jurisdiction, none of 
 which are allowed to be courts of record. 
 
 Courts Military. — The only court of this nature known to, and 
 established by the permanent laws of the land, is the court of chivalry^ 
 formerly held before the lord high constable and earl marshall of England 
 jointly. The statute of 13 Richard II. gave this court the cognizance of 
 contracts and other matters touching deeds of arms and war, as well out of 
 the realm as within it. And from its sentences an appeal lies immediately 
 to the king in person ; but is now grown almost entirely out of use, on 
 account of the feebleness of its jurisdiction, and want of power to enforce 
 its judgments ; as it can neither fine nor imprison, noly being a court of 
 record. 
 
16* MARITIME COURTS. 
 
 The Maritime Courts, or such as have power and jurisdiction to 
 determine all maritime injuries, arising upon the seas, or in parts out of the 
 reach of the common law, are only the court of admiralty and its courts 
 of appeal. The court of admiralty is held before the lor^ high admiral of 
 England or his deputy, who is called the judge of the court. Its proceed- 
 ings are according to the method of the civil law, like those of the ecclesi- 
 astical courts ; upon which account it is usually held at the same place with 
 the superior ecclesiastical courts at doctors' commons in London. It is not 
 a court of record any more than the spiritual courts. An appeal always 
 lies in ordinary course from the sentences of the admiralty judge to the 
 king in chancery. But it is expressly declared by statute, that upon ap- 
 peal made to the chancery, the sentence definitive of the delegates ap- 
 pointed by the commission shall be final. 
 
 Appeals from the courts of vice-admiralty in America, and our other 
 plantations and settlements, may be brought before the courts of admiralty 
 in England, as being a branch of the admiral's jurisdiction, though they 
 may also be brought before the king in council. But in case of prize- vessels 
 taken in time of war, in any part of the world, and condemned in any 
 courts of admiralty or vice-admiralty as lawful prize, the appeal lies to 
 certain commissioners of appeals, consisting chiefly of the privy council, 
 and not to judges delegates. The original court, to which this court is 
 permitted in England, is the court of admiralty ; and the court of appeal 
 is in effect the king's privy council, the members of which are in conse- 
 quence of treaties, commissioned under the great seal for this purpose. 
 
 To the crown of Great Britain belongs the dominion of all the narrow 
 seas which surround the island, by ancient and immemorial right, and of 
 which it has kept possession in all past times. Mr Selden makes it ap- 
 pear, that before the invasion of Julius Caesar, the aboriginal inhabitants 
 possessed this right, and after their subjugation, the Romans held it by the 
 right of conquest. On the expulsion of the Romans, the Saxon conquer- 
 ors claimed, and held the sovereignty of the surrounding narrow seas ; and 
 king Edgar, among his royal titles, styled himself " sovereign of the nar- 
 row seas." The claim of sovereignty was continued by the Norman 
 conqueror ; and under that more rigorous dynasty, the Swedes, Danes, 
 Hanse Towns, Dutch, Zealanders, &c., were compelled to ask permission 
 and to take licenses for fishing in the British seas ; and as a token of the 
 British sovereignty, were obliged to lower their top-sails when passing a 
 British ship of war, in conformity with an ordinance made by king John 
 at Hastings in Sussex. 
 
165 
 
 COURTS OF SPECIAL JURISDICTION. 
 
 In the two preceding sections, we have considered the several courts 
 whose jurisdiction is public and general ; and are so contrived that some or 
 other of them may administer redress to every possible injury that can 
 arise in the kingdom at large. There yet remains certain others, confined 
 to particular spots, or instituted only for the redress of particular injuries, 
 and whose jurisdiction is private and special. 
 
 These are, I. The Forest Courts, instituted for the government of 
 the king's forests in different parts of the kingdom, and for the punishment 
 of all injuries done to the king's deer or venison, to the vert or green- 
 sward, and to the covert in which such deer are lodged. These are the 
 courts of attachments, of regard, of sjve-hi mote, and of justice-seat. But 
 since the era of the Revolution in 1688, the forest laws have fallen into 
 total disuse, to the great advantage of the subject. 
 
 II. A second species of private courts, is that of commissioners of sewers. 
 This is a temporary tribunal, erected by virtue of a commission under the 
 great seal ; which formerly used to be granted pro re naia, at the pleasure 
 of the crown : but now at the discretion and nomination of the lord chan- 
 cellor, lord treasurer, and chief justices, pursuant to the statute 23 Henry 
 VIII. Their jurisdiction is to overlook the repairs of sea banks and 
 sea walls ; and the cleansing of rivers, public streams, ditches, and other 
 conduits, whereby any waters are carried off; and is confined to sucli 
 county or particular district, as the commission shall expressly name. The 
 commissioners are a court of record, and may fine and imprison for con- 
 tempts ; and in the execution of their duty, may proceed by jury or upon 
 their own view, and may take order for the removal of any annoyances, 
 or for the safeguard or conservation of the sewers within their commission, 
 either according to the laws and customs of Romney-marsh or otherwise 
 at their own discretion. They may also assess such rates, or scots, upon 
 the owners of lands within their district, as they shall judge necessary : and 
 if any person refuses to pay them, the commissioners may levy the same by 
 distress of his goods and chattels; or they may, by statute 23 Henry 
 VIIL, sell his freehold lands in order to pay such scots or assessments. 
 But their conduct is under the control of the court of king's bench, 
 which will prevent or punish any illegal or tyrannical proceedings. 
 
 III. The court of policies of assurance, when subsisting, is erected in 
 pursuance of the statute 43 Elizabeth, which enables the lord chancellor to 
 grant yearly a standing commission to the judge of the admiralty, tlie re- 
 corder of London, two doctors of the civil law, two common lawyers, and 
 eight merchants ; any three of which, one being a civilian or a barrister, 
 
166 
 
 COURTS OF SPECIAL JURISDICTION. 
 
 are thereby, and by statute 1 3 and 14 Char. II. empowered to determine 
 in a summary way, all causes concerning policies of assurance in London, 
 with an appeal (by way of bill) to the court of chancery. But the juris- 
 diction being somewhat defective, as extending only to London, and to no 
 other assurances but those on merchandise, and to suits brought by the 
 insured only, and not by the insurers, no such commission has of late 
 years been issued ; but insurance causes are now usually determined by the 
 verdict of a jury of merchants, and the opinion of the judges in case of 
 any legal doubts ; whereby the decision is more speedy, satisfactory, and 
 final. 
 
 IV. The court of Marchalsea and the Palace Court at West- 
 minster, though two distinct courts, are frequently confounded together. 
 These courts have jurisdiction to hold plea of all manner of personal ac- 
 tions whatsoever, which shall arise between any parties within twelve miles 
 of his Majesty's palace at Whitehall, and are now held once a-week in the 
 borough of Southwark, and a writ of error lies from thence to the court 
 of king's bench. But if the cause is of any considerable consequence, it 
 is usually removed on its first commencement, together with the custody 
 of the defendant, either into the king's bench or common pleas, by a writ 
 of habeas corpus cum causa ; but the inferior business of the court has of 
 late years been much reduced by the new courts of conscience erected in 
 the environs of London. 
 
 V. Another species of private courts of a limited though extensive jur- 
 isdiction, are those of the principality of Wales. By several statutes of 
 Henry VIII., courts-baron, hundred, and the county courts are establish- 
 ed there, the same as in England. A session is also to be held once in 
 every year, in each county, by judges appointed by the king, called the 
 great sessions of the several counties in Wales ; in which all pleas of real 
 and personal actions shall be held, with the same form of process, and in as 
 ample a manner as in the court of common pleas at Westminster j and 
 writs of error shall lie from judgments therein (it being a court of record), 
 to the court of king's bench at Westminster. 
 
 VI. The court of the duchy chamber of Lancaster is another special 
 jurisdiction, held before the chancellor of that duchy or his deputy, con- 
 cerning all matters of equity relating to lands holden of the king in right 
 of the duchy of Lancaster ; which is a thing very different from a county 
 palatine, (which has its separate chancery for sealing of writs and the like,) 
 and comprises much territory which lies at a vast distance from it, parti- 
 cularly a very large district surrounded by the city of Westminster. Tht 
 proceedings in this court are the same as on the equity side in the courts 
 of exchequer and chancery, so that it seems not to be a court of record ; 
 and indeed it has been holden that these courts have a concurrent jurisdic- 
 tion with the duchy court, and may take cognizance of the same causes. 
 
COURTS OF SPECIAL JURISDICTION. 167 
 
 VII. There are a species of private courts which are of a limited local 
 jurisdiction, and have at the same time an exclusive cognizance of pleas, in 
 matters both of law and equity, as tliose which appertain to the counties 
 palatine of Chester, Lancaster, and Durham, and the royal franchise of 
 Ely. In all these, as in the principality of Wales, the king's ordinary writs, 
 issuing under the great seal out of chancery, do not run ; that is, they are 
 of no force. For originally all jura I'egalia having been granted to the 
 lords of these counties palatine, they liad of course tlie sole administration 
 of justice, by their own judges appointed by themselves and not by the 
 crown. It would therefore be incongruous for the king to send his writ 
 to direct the judge of another prince's court in what manner to administer 
 justice between the suitors. But when Henry VIII. abridged the privi- 
 leges and franchises of these county palatines, it was enacted by statute 27 
 Henry VIII. tliat all writs and processes should be made in the king's 
 name, but should be witnessed in the name of the owner of the franchise. 
 Wherefore, all writs whereon actions are founded, and which have current 
 authority in the counties palatine, must be under the seal of the respective 
 franchises j tlie two former of which are now united to the crown, and the 
 two latter under the government of their several bishops. And the judges of 
 assize who sit therein, hold their seat by virtue of a special commission 
 from the owners of the several francliises, and under the seal thereof, and 
 not by the usual commission under the great seal of England. Hither al- 
 so may be referred the courts of the cinque ports, or five most important 
 havens, as they were formerly esteemed ; viz. Dover, Sandwich, Romney, 
 Hastings, and Hytlie, to whicli Winchelsea and Rye have been since added ; 
 which have also similar franchises in many respects with the counties pal- 
 atine, and particularly an exclusive jurisdiction before the mayor and jurats 
 of the ports, within which exclusive jurisdiction the king's writ does not 
 run. A writ of error lies from the mayor and jurats of each port, to the 
 lord warden of the cinque ports in his court of Shepway, and from the 
 court of Shepway to the king's bench. And a writ of error lies also from 
 all the other jurisdictions to the same supreme court of judicature, as an 
 ensign of superiority reserved by the crown at the original creation of the 
 franchises. And all prerogative writs, such as habeas corpus, prohibition, 
 certiorari, and mandamus, may issue for the same reason to all these ex- 
 empt jurisdictions ; because the privilege, that the king's writ runs not, 
 must be intended between party and party, for there can be no such privi- 
 lege against the king. 
 
 VIII. The Stannary Courts in Devonshire and Cornwall for tlie ad- 
 ministration of justice among the tinners, are also courts of record, but of 
 the same private and exclusive nature. They are held before the lord 
 Warden and his substitutes, in virtue of a privilege granted to the workers 
 in the tin mines there, to sue and be sued only in their own courts, that 
 
168 COURTS OF SPECIAL JURISDICTION. 
 
 they may not be drawn from their business, which is highly profitable to 
 the public, by attending their lawsuits in other courts. What relates to 
 our present purpose is only this, that all tinners and labourers, in and about 
 the stannaries, shall, during the time of their working therein bona Jide, 
 be privileged from suits of other courts, and be only impleaded in the Stan- 
 nary court in all matters, excepting pleas of land, life, and member. No 
 writ of error lies here to any court in Westminster hall. But an appeal 
 lies here from the steward of the court, to the under warden, and from him 
 to the lord warden, and thence to the privy council of the prince of Wales, 
 as duke of Cornwall, when he hath had livery or investiture of the same. 
 And from thence the appeal lies to the king himself in the last resort. 
 
 I X . The several courts of justice within the city of London, and other cities, 
 boroughs, and corporations throughout the kingdom, held by prescription, 
 charter, or act of parliament, are also of the same private and limited 
 species. It would exceed the limits of this work to enter into a particular 
 detail of these, and to examine into the nature and extent of their several 
 jurisdictions. 
 
 But there is one species of courts constituted by act of parliament in the 
 city of London, and other trading and populous districts, which diifers so 
 much in its proceedings from the course of the common law, that it de- 
 serves a more particular consideration. We mean the Courts of Re- 
 quests, or courts of conscience, for the recovery of small debts. In these 
 courts, two aldermen and four commoners sit twice a week, to hear all 
 causes of debt not exceeding the value of forty shillings ; which they ex- 
 amine in a summary way, by the oath of the parties, or other witnesses 
 and make such order therein, as is consonant to equity and good conscience. 
 The time and expense of obtaining this summary redress, are very incon- 
 siderable, which make it a great benefit to trade ; and in consequence, 
 several trading towns, and other districts, have obtained acts of parliament 
 for establishing courts of conscience upon nearly the same plan as that in 
 tlie city of London. 
 
 X. There is yet another species of private courts, which must not be 
 omitted in this notice, viz. the chancellor's courts in the two universities of 
 Oxford and Cambridge ; which two learned bodies enjoy the sole jurisdic- 
 tion, in exclusion of the king's courts, over all civil actions and suits 
 whatsoever when a scholar or privileged person is one of the parties, 
 excepting in such cases where the right of freehold is concerned. So far 
 as the privilege relates to civil causes, it is exercised at Oxford in the 
 chancellor's court ; the judge of which is the vice-chancellor, his deputy, 
 or assessor ; from whose sentence an appeal lies to delegates appointed by 
 the Congregation ; from thence to other delegates of the house of Con- 
 vocation, and if they all three concur in the same sentence, it is final ; at 
 least by the statutes of the university, according to the rule of the civil 
 
COURTS OF SPECIAL JURISDICTION. 169 
 
 law. But if there be any discordance or variation in any of the three 
 sentences, an appeal lies in the last resort, to judges delegates appointed 
 by the crown, under the great seal in chancery. 
 
 Doctors Commons — This college of civilians is established for the 
 study of the civil law, in which, courts are kept for the trial of civil and 
 ecclesiastical causes, under the archbishop of Canterbury and the bishop 
 of London, as in the court of arches and the prerogative court. There 
 are also offices in which wills are deposited and searched, and a court of 
 faculties and dispensations. The name of commons is given to this college, 
 from the circumstance of the civilians commoning together as in other 
 colleges. This edifice is situated in Great Knight Rider Street, near the 
 college of arms, on the south side of St Paul's Cathedral. The old build- 
 ing which stood in this place was purchased for the residence of the ci- 
 vilians and canonists, by Henry Harvey, doctor of the civil and canon law, 
 and dean of the arches. But this edifice being destroyed by the general 
 devastation in 1666, they removed to Easter House, in the Strand, where 
 the civilians had their chambers and offices, and their courts were held in 
 the hall. But some years after, the commons being rebuilt in a more 
 convenient and elegant manner than before, the civilians returned thither. 
 The causes of which the civil or ecclesiastical law do, or may, take cog- 
 nizance, are, blasphemy, apostasy, heresy, ordinations, institutions to 
 benefices, celebration of divine service, matrimony, divorces, bastardy, 
 tithes, oblations, obventions, mortuaries, dilapidations, reparations of 
 churches, probates of wills, administrations, simony, incest, fornication, 
 adultery, pensions, procurations, commutation of penance, right of pews, 
 and others of the same kind. Those who practise in these courts are 
 divided into two classes, advocates and proctors. The advocates are such 
 as have taken the degree of doctor of civil law, and are retained as coun- 
 sellors and pleaders. These must first, upon their petition to the arch- 
 bishop, obtain his fiat, and thus they are admitted by the judge to practise. 
 The following is their mode of admission : Two senior advocates in their 
 scarlet robes, with the mace carried before them, conduct the doctor up 
 the court with three reverences, and present him with a short Latin speech, 
 together with the archbishop's rescript. Then, having taken the oaths, 
 the judge admits him, and assigns him a place or seat in the court, which 
 he is always to keep when he pleads. Both the judge and advocate, if of 
 Oxford, wear in court scarlet robes, and hoods lined with taflfeta ; but if 
 of Cambridge, white minever, and round black velvet caps. The proctors 
 or procurators exhibit their proxies for their clients, and make themselves 
 parties for them, and draw and give pleas, or libels and allegations in their 
 behalf, produce witnesses, prepare causes for sentence, and attend the ad- 
 vocates with the proceedings. These are also admitted by the archbishop's 
 fiat, and introduced by two senior proctors. They wear black robes and 
 
 Y 
 
170 COURTS OF SPECIAL JURISDICTION. 
 
 hoods, lined with fur. The terms for the pleading and ending of causes 
 in the civil courts, are but slightly different from the term times of the 
 common law. The order as to the time of the sitting of the several 
 courts, is as follows. The court of arches having the pre-eminence, sits 
 first in the morning, the court of admiralty sits in the afternoon in the 
 same day, and the prerogative court also sits in the afternoon. 
 
 Insolvent Debtors' Court. — The defective state of the law re- 
 specting the issuing of mesne process^ and the frequency of insolvency acts, 
 rendered some such court as this necessary. It was established about the 
 year 1814, as an experiment for five years, being chiefly founded on the 
 cessio bonorum principle of the law of Scotland -, a debtor is entitled to 
 petition for his discharge out of prison, after an imprisonment of three 
 months, on condition of surrendermg all his effects for the use of his cre- 
 ditors. This discharge, if it should not be conditional, on the ground of 
 extravagance, or fraud having been committed by the debtor, releases the 
 person ; but any property that can be traced to him, although it may 
 have been subsequently acquired, is liable for the payment of his debts ; 
 the person is for ever released, but property never, so long as any debts 
 remain unsatisfied, where there is an unconditional discharge. 
 
 The acts constituting the insolvent debtors' court, contain the regula- 
 tions for its guidance, and appoint a commissioner to carry them into 
 effect. The construction to be put upon these laws is left to his sole dis- 
 cretion ; there is no intervention of a jury ; and thus the court partakes 
 of the mingled principles of law and equity, having specific regulations to 
 enforce, at the same time possessing a large discretionary power. 
 
 How far the principle of releasing the person, and fixing the property 
 of a debtor, have answered the expectations of the supporters of this change 
 in the practice of the common law, we shall not pretend to decide, in an 
 impartial matter-of-fact work like the present ; but to assist in others 
 coming to a conclusion, on what so materially affects credit and the in- 
 terests of trade in general, the following facts may not be unacceptable ; 
 they are drawn from the Commons' report on the subject, which the house 
 ordered to be printed a very short time after the constitution of the court. 
 Feb. 1st, 1816, there had been presented 7,509 insolvent debtors' peti- 
 tions ; of these 1,419 Avere withdrawn in consequence of the 54 Geo. III., 
 so that 6,090 petitions remained ; of that number 5,511 had been heard, 
 determined, and discharges ordered. There were 186 petitions remanded, 
 and 393 not finally determined, which made up the 6,090 petitions. 
 
 The amount of debts in the schedule withdrawn, was . . £1,132,171 
 
 Ditto of the petitions remanded ...... 220,699 
 
 Total gross amount of the schedule of all the petitions presented , 5,598,674 
 
 On the other side of the statement we find, that assigning of the effects cf 
 500, out of the 5,511 debtors, had been appointed ; and that the assignees. 
 
COURTS OF SPECIAL JURISDICTION. 171 
 
 in fifteen of these cases, had made returns to the court. The gross amount 
 of their returns was £l,499, 4s. 
 
 According to returns made in the house of commons, founded on the 
 above, and subsequent returns to March, 1817, there had been about nine 
 thousand persons liberated, whose debts amounted to nearly nine millions ; 
 and the average dividend resulting from the property given up to the cre- 
 ditors, was a quarter of a farthing, and half a farthing in the pound » 
 Mr Alderman Waithman, arguing from what had passed, declared, that by 
 the time this act expired, there would be liberated 14,000 persons, and 
 fifteen millions of debts. In the course of the examinations which took 
 place before the house of commons, the imperfect state of the laws affect- 
 ing debtor and creditor was made still more manifest, as will appear from 
 the following singular document, extracted from the evidence of Mr Clark, 
 at that time clerk of the insolvent debtors' court, " showing how a debtor 
 may harass a creditor," and sold among the prisoners at sixpence each. 
 
 " When arrested and held to bail, and after being served with a declara- 
 tion, you may plead a general issue, which brings you to trial sooner 
 than any plea that you can put in ; but if you want to vex your plaintiff, 
 put in a special plea ; and if in custody, get your attorney to plead in 
 your name, which will cost you £l, 1*. and your plaintiff £l, lOs. as 
 expenses. If you do not mean to tiy the cause, you have no occasion to 
 do so till your plaintiff gets judgment against you ; he must, in the term 
 after you put in a special plea, send in what is termed the paper book, 
 which you must return with 7^. 6c?., otherwise you will not put him to 
 half the expenses. When he proceeds and has received a final judgment 
 against you, get your attorney to search the office appointed for that pur- 
 pose in the temple, and when he finds that judgment is actually signed, he 
 must give notice to the plaintiff's attorney, to attend the master to tax his 
 costs, at which time your attorney must have a writ of error ready, and give 
 it to the plaintiff's attorney before the master, which puts him to a very 
 great expense, as he will have the same charges to go over again. The 
 writ of error will cost you £4, 4.?. ; if you want to be farther troublesome 
 to your plaintiff, make your writ of error returnable in parliament, which 
 costs you £8, 8^. and your plaintiff £l 00. Should he have courage to 
 follow you through all your proceedings, then file a bill in the exchequer, 
 which will cost him five or six pounds more, and if he answers it, it will 
 cost him £80 more ; after this you may file a bill in chancery, which 
 will cost about £lO, and if he does not answer this bill, you will get an 
 injunction, and at the same time an attachment from the court against 
 him, and may take his body for contempt of court in not answering your 
 last bill J you may file your bill in the court of chancery instead of the 
 exchequer, only the latter costs you the least. If you are at any time 
 served with a copy of a writ, take no farther notice of it than by keeping 
 
172 COURTS OF SPECIAL JURISDICTION. 
 
 it : when you are declared against, do not fail to put in a special plea 
 immediately, and most likely you will hear no more of the business, as 
 your plaintiff will probably not like to incur any further expense, after 
 having been at so much." 
 
 DEFENDANT'S COSTS. PLAINTIFF'S COSTS. 
 
 Common Plea, . . .£036 Answer to special plea, . £30 
 
 Special do 110 Do. to writ of error, . 100 
 
 Paper book, . . . 7 6 Do. to bill in exchequer, 84 
 
 Writ of error, . . .440 Do. do. in chancery, 100 
 
 Do. returnable in parliament, 8 8 
 Filing bill in exchequer, . 6 6 
 
 Do. in chancery, . . . 10 
 
 £30 10 £314) 
 
 Thus debtors have the legal means of harassing their creditors, without 
 putting themselves to a tenth part of the expenses to which they subject 
 the plaintiff, whose property they have previously run through or 
 squandered ! 
 
 Manner of making a Judge. — The judges must be selected from 
 the sergeants at law, and the manner in which they are created merits 
 notice. The lord chancellor, having taken his seat in the court where 
 the vacancy is to be filled up, bringing with him the letters patent of 
 creation, causes the sergeant elect to be introduced, to whom in open 
 court his lordship notifies the king's pleasure, and afterwards directs the 
 patent to be publicly read. When this has been done, the master of the 
 rolls reads to the new judge the oath he is to take, which states, that he 
 shall indifferently administer justice to all men, as well foes as friends, that 
 shall have any suit or plea before him ; and this he sliall not forbear to do, 
 though the king by his letters, or by express word of mouth, should com- 
 mand the contrary ; and that from time to time he shall not receive any 
 fee or pension, or living of any man, but of the king only ; nor any gift, 
 reward, or bribe, of any man having suit or plea before him, saving meat 
 and drink, which shall be of no great value. The oath having been ad- 
 ministered, the lord chancellor delivers to the new judge the letters patent 
 of his creation ; and the lord chief justice of the court assigns to him a 
 place on the bench, where he is then placed, and which he is enjoined to 
 keep. 
 
 Inns of Court. — It may not be improper to notice the institutions 
 in which the professors of the law are supposed to be bred ; but they are 
 now only nominally what they were formerly in reality. Instead of any 
 public *' moots," exercises and duties, to be observed by students pre- 
 viously to their being privileged to be called to the bar, they have now 
 only to eat a certain number of dinners, during the terms of three or five 
 years, in one of the Inns of Court, the expense of which, together with a 
 
COURTS OF SPECIAL JURISDICTION. 173 
 
 species of fine, amounts to about £130. After having undergone this 
 probationary requisite, the students are qualified for admission to the bar, 
 if they can persuade members of the society to move that they be called, 
 even though the party so recommended had never once seen a law book. 
 There is seldom any objection to the call ; it is not however always a 
 matter of course. The celebrated Horne Tooke, who studied for the 
 pulpit, the parliament, and the bar, found himself baffled in each of those 
 pursuits ; the motion that he be called to the bar, after he had regularly 
 gone his terms, was negatived by a majority of one ! But although much 
 pleasantry has been occasioned by the practice of thus eating the way to 
 the bar, it must not be presumed that no preparatory study is pursued. 
 Public courses of study were found inefficacious, and were abandoned ; 
 but all those who have risen to celebrity as lawyers, laid the foundation 
 of their greatness by sheer hard study. The young men not only apply 
 themselves to courses of law reading, but come into the practice of the 
 laws, and the application of their own researches, by being articled as 
 pupils to leading special pleaders, counsel, &c. Two or three hundred 
 guineas are frequently paid for permission to study in the office of a spe- 
 cial pleader, or barrister of high consideration and great practice. The study 
 of the law is a certain road to greatness in the state. The method which 
 lawyers are obliged to pursue in all their studies and pleadings, gives 
 them advantages in public speaking both in parliament and at the bar, 
 over every body else ; hence may be traced the amazing success and cele- 
 brity that often attends them in life, humble individuals rising to be the 
 first law officers and ministers of the crown. 
 
 As a member of the law is obliged to belong to an Inn of court, and as 
 the students and practitioners generally reside in chambers in some of the 
 inns, those courts have become famous for the production of men of learn- 
 ing. The Inns of court are governed by masters, principals, benchers, 
 stewards, &c. They have not any judicial authority over their members. 
 For lighter offences, persons are only excluded, or not allowed to eat at 
 the common table with the rest ; and for greater, they lose their chambers ; 
 and when once expelled from one society, they are never received by any 
 of the rest. As the societies are not incorporated, they have neither lands 
 nor revenues, nor any thing for defraying the charges of the house, but 
 what is paid for admissions, and other dues for the chambers. The 
 members may be divided into benchers, outer barristers, inner barristers, 
 and students. The benchers are the seniors who have the government 
 of the whole house ; and out of these is annually chosen a treasurer, who 
 receives, disburses, and accounts for all the money belonging to the house. 
 
 The Temple. — There are four principal inns of court, the Inner and 
 Middle Temples, Lincoln's Inn, and Gray's Inn. The Temple is so 
 called, because it was anciently the dvvelling-house of the Knights Tern- 
 
174 COURTS OF SPECIAL JURISDICTION. 
 
 plars. At the suppression of that order, it ^vas purchased by the profes- 
 sors of the common law, and converted into Inns. They are called the 
 Inner and Middle Temple, in relation to Essex house, which also belonged 
 to the Templars, and is called the Outer Temple, because situated without 
 Temple Bar. The king's treasure was kept in the Middle Temple, during 
 the time of the Templars. The master of the Temple was the chief offi- 
 cer, and was summoned to parliament in the 47, Henry III., and from him 
 the chief master of the Temple church is called " the Master of the 
 Temple." 
 
 The Inner Temple is situated in the east of Middle Temple-gate, 
 and has a cloister, a large garden, and spacious walks. The society 
 consists of benchers, barristers, and students; the former of whom, as 
 governors at commons, have their table at the upper end of the hall, and 
 the barristers and students in the middle. 
 
 The Middle Temple is joined to the Inner Temple on the west, 
 and is thus denominated in consequence of its having been the middle or 
 central part of the ancient Temple or priory of Knights Templars. 
 
 Lincoln's Inn is situated on the west side of Chancery Lane, where 
 the houses of the bishop of Chester and the Black Friars formerly stood j 
 the latter was erected about the year 1222, and the former about 1226 ; 
 but both of them falling into the possession of Henry Lacey, earl of Lin- 
 coln, he built in their place a stately mansion for his city residence. It 
 afterwards reverted to the bishopric of Chichester, and was demised by 
 Robert Sherbourn, bishop of that see, to Mr William Selliard, a student, 
 for a term of years ; after the expiration of which, Dr Richard Sampson, 
 his successor, in the year 1536, passed the inheritance thereof to the said 
 Selliard and Eustace his brother ; and the latter, in 1579, conveyed the 
 house and gardens in feu to Richard Kingsmill and the rest of the benchers. 
 
 Gray's Inn lies on the north side of Holbom, near the bars, and is so 
 called in consequence of having been formerly the residence of the ancient 
 and noble family of Gray of Wilton, who demised it in the reign of Edward 
 III. to several students of the law. It is, like the other inns of court, 
 inhabited by barristers and students of the law, and also by many gentle- 
 men of independent fortune, who may choose it as an agreeable retire- 
 ment, or for the pleasure of the walks. The chief ornament of this inn 
 is its spacious garden, which is open to the well-dressed part of the 
 public every day. 
 
 Besides these principal inns of court, there are two Serjeants' Inns> 
 the one in Fleet Street, and the other in Chancery Lane. 
 
 The Inns of Chancery were probably so called because they were 
 anciently inhabited by such clerks as chiefly studied the forming of writs, 
 which regularly belonged to the Cursitors, who are officers of chancery. 
 The first of these is Thavie's Inn, begun in the reign of Edward III., 
 
PROCEEDINGS IN COURTS OF LAW. 175 
 
 and since purchased by the society of Lincoln's Inn ; Clement's Inn j 
 Clifford's Inn, formerly the dwelling-house of lord Clifford ; Staple Inn, 
 belonging to the merchants of the staple ; Lion's Inn, anciently a com- 
 mon inn with the sign of the lion ; Furnival's Inn, now handsomely 
 rebuilt, and Barnard's Inn. These were considered as only preparatory 
 schools for younger students ; and many were entered here before they 
 were admitted into the inns of court. They are now chiefly occupied by 
 attorneys and solicitors. They belong, however, to some of the inns of 
 court, who formerly sent barristers annually to read to them.* 
 
 PROCEEDINGS IN COURTS OF LAW. 
 
 Having before given a brief sketch of the different Courts of Law in 
 England, it will be proper to take a succinct view of the method of pro- 
 ceeding therein, both in civil actions and criminal cases. The following 
 observations will be restricted to the forms observed in the courts of gener- 
 al jurisdiction ; for if there be any peculiarities in conducting the business 
 in the inferior courts, they being of a local nature, are consequently of 
 little interest or importance to the public. But in general trials are con- 
 ducted much the same in the lower courts as before the superior tribunals. 
 And we shall here give some observations on, 
 
 I. Trials in Civil Actions. — II. Courts of Equity. — III. Punishments. 
 — IV. Homicide. — V. Courts of Criminal Jurisdiction. — VI. Proceedings 
 in Criminal cases. 
 
 I. Trials in civil actions. — The commencement of a civil suit is 
 the orighial writ. When a person has received an injury, and is deter- 
 mined on seeking the remedy provided by law, he sues out from the court 
 of chancery an original, or the writ, which is applicable to his particular 
 case. This is directed to the sheriff, requiring him to command the of- 
 fender to do justice to the party complaining, or to appear in court to 
 answer the accusation against him. The sheriff is bound to make a re- 
 turn of the writ, and this should be done on the following term : but as the 
 law allows the defendant 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 by giving the party notice, by 
 summons to obey the original writ. If the defendant disobey this warning, 
 a pone is issued out, or writ of attachment, so called from the words of the 
 
 * Blackstone, Custance, Leigh's Picture of London. 
 
176 PROCEEDINGS IN COURTS OF LAW. 
 
 nrit, "pone per vadium et salvos plegios''^ — "put by gage and safe 
 pledges, A. B., the defendant, &c." — If he neglect to appear after at- 
 tachment, he is farther compelled by writ of distringas, commanding the 
 slieriff to distrain the defendant of his goods if he do not appear. And 
 if he have no goods, then a writ of capias 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 plaintiff s plea. If after repeated writs of ca- 
 pias and proclamation made, the defendant do not appear and cannot be 
 found, an outlawry takes place. Such outlawry is putting the man out of 
 the protection of the law, and is attended by a 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 ajffidavit, that the 
 cause of action amounts to £10 and upwards, then he may arrest the de- 
 fendant. An arrest must be by corporeal seizing or touching the de- 
 fendant's body J but the bailiff cannot enter his house by violence, but must 
 watch his opportunity to take him. When the defendant is regularly ar- 
 rested, he must either go to prison or safe custody, or put in special bail 
 to the sheriff as security for his appearance. This appearance is effected 
 by putting in bail to the action. These bails, who must be at least two in 
 number, must enter into a recognizance in a sum equal, or sometimes 
 double, to that to which the plaintiff has sworn : 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 the process follows the pleadings ; that is, the plaintiff states a de- 
 claration of his case, to which the defendant must in a reasonable time 
 make his defence or put in a plea, otherwise the plaintiff will at once re- 
 cover 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 action. 
 
 The fourth stage of the action is the issue, which is the end of all the 
 proceedings ; and is either on a matter of law or matter of fact. The 
 former is called a demurrer; which confesses the facts to be true, but de- 
 nies that any injury is thereby done to the plaintiff. The latter, or an 
 issue of fact, is when 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 us to the trial in open court. 
 
 A trial, then, or probation, is the mode which the law of the land lias 
 settled for a criterion of truth and falsehood. 
 
PROCEEDINGS IN COURTS OF LAW. 177 
 
 In civil cases the law acknowledges seven special trials ; viz. 1 by re- 
 cord ; 2. by inspection ; 3. by certificate ; 4. by witnesses j 5. by wager of 
 battel ; 6. by wager of law ; and 7. by jury. 
 
 1. A trial by record, is when a matter of record is pleaded in any ac- 
 tion ; 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 earl, whether baron or no baron, shall 
 be tried by the king's patent only, which is matter of record. 
 
 2. Trial by inspection, is when the point or issue is the object of sense j 
 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 circumstance relative to a particular day past, may be 
 tried by inspection of the almanac by the court. Thus, an appeal upon a 
 writ of error was once made from an inferior court, at Lynn Regis, assign- 
 ing the error to be, that the judgment was given on a Sunday: it appear- 
 ing to have been the 26th February, in the 26th year of the reign of 
 queen Elizabeth. Upon inspecting the almanacs of that year the fact was 
 found to be so ; and the judgment was reversed accordingly. 
 
 3. The trial by certificate is alloAved in such cases when the evidence of 
 the person certifying is the only proper criterion of the point in dispute. 
 As if A. B. asserts that he was at Jamaica at such a time, the court may 
 determine tlie fact upon a certificate under the hand and seal of the gover- 
 nor of that island. 
 
 4. The trial by witnesses, without the intervention of a jury, is the only 
 method of trial known to the civil law, in which the judge is left to form 
 his sentence in his own breast upon the credit of the witnesses examined. 
 But it is very rarely used in the law of England, which prefers the trial 
 by jury before it in all cases. 
 
 5. 6. The trial by wager of battel, and by wager of law, are both now 
 quite out of use, and therefore need only be mentioned. 
 
 7. Trial by jury having been already detailed, page 51, need not be 
 Iiere repeated, but merely to supply what was then omitted. The evi- 
 dence having been gone through on both sides, the judge proceeds to sum 
 up the whole to the jury, in presence of the parties, their counsel, and 
 all others, in open court. In doing which his lordship observes wlierein 
 the main question or principal issue lies ; states what evidence has been 
 adduced in it, 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 suflfered to speak to either of the parties, or 
 
 z 
 
178 PROCEEDINGS IN COURTS OF LAW. 
 
 their agents ; nor to receive any fresh evidence in private, nor cast lots 
 for whom they shall decide ; as any of these circumstances would invalidate 
 their verdict. And to avoid intemperance, or unnecessary 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 to be threatened 
 or imprisoned ; yet the judges are not bound to wait for their decision, but 
 may take them from town to town, through the circuit, in a cart, until 
 tliey can make up their minds. 
 
 When the jury are agreed, they return back to the bar j and before the 
 verdict is delivered, the plaintiff is bound to appear in court by himself, or 
 his attorney, or counsel, in order to answer the amercement to which he 
 is lij^ble if he fail in his suit. If the plaintiff do not appear, he is said to 
 be non-suit, and no verdict can be given ; and therefore 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 non-suited. Whereupon the action is end- 
 ed, and the defendant shall recover his costs. The reason of this practice 
 is, because after a non-suit, the plaintiff may commence an action again ; 
 but after a verdict and judgment against him, he cannot attack the defen- 
 dant again upon the same grounds. 
 
 A verdict means to speak truly, by which 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 
 advice of the court thereon, concluding conditionally, that if upon the 
 whole of the matter, the court shall be of opinion that they find for him ; if 
 otherwise, then they find for the defendant. A special case is another species 
 of verdict, when the jury find generally for the plaintiff, subject to the opin- 
 ion 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 finished, and the jury is to be discharged. 
 
 T\\e judgment of the court follows the verdict of the jury, but it may 
 be suspended and finally arrested, for it cannot be entered till the next term 
 after trial had, and that upon notice to the other party ; so that if any de- 
 fect of justice happened at the trial through surprise, inadvertency, or 
 misconduct, the party may have sufficient relief in the court above, by ob- 
 taining a new trial ; which is always granted, when the reasons for apply- 
 ing for one are sufficiently weighty. 
 
 An-ests of judgment arise from intrinsic causes appearing on the face 
 of the record. Of this kind are, first, when the declaration varies totally 
 from the original writ ; secondly, when the verdict differs materially from 
 the pleadings or issue tliereon ; or, thirdly, if the case laid in the de- 
 claration, be not sufficient in point of law on which to found an action. 
 
mmmm 
 
 PROCEEDINGS IN COURTS OF LAW. 179 
 
 If, by some of these means, judgment is not arrested within the first four 
 days of the next term after the trial, it is then to be entered on the roll or 
 record. But when judgment is arrested, each party pays his own costs. 
 
 Judgments are not the judge's determinations, but the sentence of the 
 law^ and are of four sorts ; first, when the facts are confessed by the part- 
 ies themselves, and the law is determined by the court : as in the case of judg- 
 ment on demurrer ; secondly, when the law is admitted by the parties, but 
 the facts disputed : as in the case of judgment on a verdict ; thirdly, when 
 both the law and the facts arising thereon are admitted by the defendant : 
 which is the case of judgment by confession or default ; or, lastly, when 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 on a non-suit^ or retraxit. 
 
 The consequence of judgment is execution^ which will follow immediately, 
 unless tlie party condemned thinks himself unjustly aggrieved by any of 
 these proceedings ; and then he has his remedy to reverse them by several 
 writs in the nature of appeals. 
 
 The principal method of redress in wrong judgment, 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 proceedings of a court of re- 
 cord, lies, in the last resort, to the house of Lords, whose decision cannot 
 be reversed, or even reviewed. When judgment has not been suspended, 
 superseded, nor reversed, execution follows, or the law is put in force, ac- 
 cording to the nature of the action. The different writs of execution must 
 be sued out within a year and a day after judgment is entered : otherwise 
 the court concludes that the judgment is satisfied and extinct ; yet the de- 
 fendant may be compelled to show cause why the judgment should not be 
 revived, &c. 
 
 II. Courts op Equity — Although there is some difference witli 
 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. 
 
 Equily^ in its true and genuine import, is the soul and spirit of all law. 
 Positive law is construed, and rational law is made by it. Nothing more 
 is intended by equity than the sound interpretation of the law : the words 
 of the law itself may, and often are too general, too special, or otherwise 
 defective. In such cases, it is the province of equity to expound their 
 true meaning. However the courts of law and of equity may differ in 
 their outward forms, they rest upon the same substantial foundation. 
 Their proceedings are dissimilar in their mode of proof, the mode of trial, 
 and the mode of relief But the essential difference between them consists 
 in the different modes of administering justice in each. 
 
 With respect to the mode of proo/': where facts, or their leading circum- 
 stances, depend only on the knowledge of the party, a court of equity ap- 
 
180 PROCEEDINGS IN COURTS OF LAW. 
 
 plies itself to his conscience ; and purges him upon oath 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 interrogato- 
 ries, 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 tlie spot ; if in cases 
 arising in England the witnesses are abroad, or soon to leave the kingdom ; 
 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 instances, 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 be had in courts of equity than can 
 be obtained in courts of law, 
 
 A suit in Chancery commences by preferring a bill to the lord chancellor 
 in the style of a petition, *♦ humbly complaining, showeth to your lordship, 
 your orator A. B. that," &c. setting forth the circumstances of the case at 
 length, as some fraud, trust, or hardship ; "in tender consideration where- 
 of, and for that your orator is wholly without remedy at the common law :" 
 relief is therefore prayed for at the chancellor's hand, and also a process of 
 subpoena against the defendant to compel him to answer upon oath, to all 
 matter charged in the bill, &c. The bill preferred must be signed by 
 counsel as a certificate of 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 the forfeiture of £lOO ; 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 ?ion est inventus, that is, was not found, 
 then an attachrnent with proclamations issues, — which enjoins the sheriff 
 to cause proclamations to be made throughout the county, to summon 
 the defendant upon his allegiance, personally to appear and answer. If 
 this writ should also be returned with a non est i?ivejitus, 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 these, 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 sends a sergeant at arms in quest of him. And if he 
 elude the search of the sergeant also, then a sequestration issues to seize 
 
PROCEEDINGS IN COURTS OF LAW. 181 
 
 all his personal estate, and the profits of his real, and to detain them, sub- 
 ject 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 ac- 
 cordingly. And thus much if the defendant abscond. But if the defendant 
 be taken in any stage of the process, he is transmitted to the Fleet, or other 
 prison, till he put in his appearance, or answer, or perform whatever else 
 this process is issued to enforce. He must also clear his contempts by 
 paying the costs which the plaintiff has thereby incurred. 
 
 If the defendant should be a body corporate, the process is by distringas 
 to distrain them of then* goods and chattels, rents and profits, till they shall 
 obey the summons or directions of the court. But if the defendant should 
 be a peer of the realm, the lord chancellor sends a copy of the bill together 
 with a letter missive to him, requesting his appearance. If he neglect to 
 appear, he may be served with a subpoeiia ; 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 commons, 
 except only that the lord chancellor does not send his letter missive to him. 
 Should the defendant appear regularly and take a copy of the bill, he is 
 then to demur, plead, or ansrver. 
 
 A demurrer in equity is nearly of the same nature 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 demurrer be overruled, 
 the defendant is ordered to answer. A plea may be either to the jurisdic- 
 tion, showing that the court has no cognizance of the cause ; or to the per- 
 son, showing some disability in the plaintiff; as by outlawry, excommunica- 
 tion, and the like ; or it is in bar, showing some matter, whereof the plain- 
 tiff can demand no relief. Ao answer in equity courts is the most usual 
 defence that is made to the plaintiff's bill. It is given in on the oath of 
 a commoner, or the honour of a peer or peeress. But when these are 
 amicable defendants, their answer is usually taken without oath, by the 
 plaintiff's consent. If the defendant live within twenty miles of London, 
 his answer must be obtained by swearing him before one of the masters of 
 the court ; if he reside farther off, there may be a commission to take his 
 answer in the country, where the commissioners administer to him the usual 
 oath. The answer being tlien sealed up, is carried by one of the com- 
 missioners up to the court, or is sent by a messenger, who swears he re- 
 ceived 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 de- 
 fendant be compelled to put in a more satisfactory one. In his answer the 
 defendant may pray to be dismissed the court ; but if he have any relief to 
 
182 PROCEEDINGS IN COURTS OF LAW. 
 
 pray against the plaintiff, he must do it by an original bill of his own, call- 
 ed 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 defendant is obliged to answer afresh to such amended bill. 
 
 If the plaintiff now find sufiicient matter confessed in the defendant's 
 answer on which to ground a decree, he may proceed to the hearing of the 
 cause, upon bill and answer only ; — but in that case, he must take the de- 
 fendant's answer to be true in every point. Should this not be the case, 
 the plaintiff is then to reply generally to the answer, averring his bill to be 
 true, certain, and sufficient, and the defendant's answer to be the reverse j 
 which he is ready to prove as the court shall award. Upon which the de- 
 fendant rejoins, averring the like on his side, which is joining issue upon 
 the disputed facts. The next step is to prove these facts ; which is done 
 by examining witnesses, and taking tlieir depositions in writing. The 
 witnesses near London are examined at an office appointed, and those in 
 the country by commissioners. Wlien all the witnesses are examined, the 
 depositions may be published. A fter which they are open for the inspec- 
 tion 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, either before 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 arrival cf causes depending before each. The decrees of the 
 master of the rolls are valid, but subject to be discharged or altered by the 
 chancellor, 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 counsel, the plaintiff's bill is first opened, 
 and the defendant's also by the junior counsel on each side. After which 
 the plaintiff's leading counsel states the case, the matters in issue, and the 
 points of equity thereon arising. Then such depositions as are called for 
 by the plaintiff are read by one of the six clerks ; and the plaintiff may al- 
 so read any part of the defendant's answer, and after this, the rest of his 
 counsel proceed to make their observations and arguments. The defen- 
 dant'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 conscience. If either party 
 think himself injured by the decree, he may petition the court for a re- 
 hearing ; but the petition must be signed Jr^- two respectable counsel, cer- 
 tifying that it is their opinion, that the cause is proper to be reheard. But 
 after the decree is once signed and enrolled, it cannot be reheard or recti- 
 fied, 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 appear- 
 ing upon the face of the decree ; or by special leave of the court, upon 
 
PROCEEDINGS IN COURTS OF LAW. 183 
 
 oath made of the discovery of new matters or evidence which could not be 
 possibly had or used at the time when the decree passed. But the der- 
 nier 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 new evidence is admitted in the house of lords, 
 upon any account. 
 
 III. Punishment.— It may not be uninteresting now to inquire into 
 the nature of crimes and their punishment. In the preceding article, 
 those offences have been considered which arise between man and man : 
 we shall now consider the criminal law or pleas of the crown. The king 
 is the proper prosecutor for every offence, because as he is the sovereign 
 and head of all estates and classes in the nation, he is supposed to be per- 
 sonally injured when any of the great family of which he is the head and 
 father personally suffers. 
 
 A crime is an act either committed or omitted in breach of a public law, 
 which either forbids or commands it. 
 
 A misdemeanor is a term of a milder import, and signifies any indictable 
 offence which does not amount to felony ; such as perjury, battery, libels, 
 conspiracies, &c. 
 
 Laws are necessarily enacted for the good government and security of 
 the state, and for the punishment of those who commit any crime ; and as 
 the king enacts these laws by the advice and consent of his great council, 
 the three estates of parliament, it follows as a matter of course, that he is 
 armed with the power of enforcing them. "• He beareth not the sword in 
 vain ; for he is the minister of God, a revenger to execute wrath upon him 
 that doeth evil." Rom. xiii. 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. But there is no law, human or divine, 
 which empowers private individuals or parties, being subjects, to assume at 
 their own hands the right of executing justice, either " between plea and 
 plea, or stroke and stroke," inasmuch as the divine right of demanding blood 
 for blood was conferred by God on Noah, as the universal sovereign and his 
 sons : and from them naturally descending, as an undoubted prerogative 
 of their crown, on all sovereign princes, and who have in consequence ex- 
 ercised this right in all ages, both civilized and barbarous, to the entire 
 prevention of the 'people assuming to themselves the privilege of avenging 
 their own quarrels, far less of executing public justice, and which in no age 
 or country has ever been disputed. 
 
 Human punishment may be considered with regard to its power, end, 
 and measure. 
 
 With respect to the power or right of the sovereign to inflict punish- 
 ment ; every one must at once see the mischief that would arise, if men were 
 
184 PROCEEDINGS IN COURTS OF LAW. 
 
 allowed to redress their own grievances. But no man being a proper judge in 
 his own case, the power of enacting punishment is, with the strictest justice 
 and the unerring wisdom of God, transferred from individuals to the sove- 
 reign authority. This power was conferred on Adam at his creation, but 
 more distinctly on Noah after the flood. We find Noah exercising the 
 fatherly or sovereign authority over his wicked son : " and he said. Cursed 
 be Canaan, a servant of servants shaU he be unto his brethren." But his 
 dutiful and obedient children he blessed : " and he said, Blessed be the Lord 
 God of Shem ; and Canaan shall be his servant. God shall enlarge 
 Japhethjand Canaan shall be his servant."* Here we see the univer- 
 sal sovereign exercising the supreme authority, cursing Ham or Canaan for 
 his irreverence and impiety, and blessing the other two for their respectful 
 and dutiful conduct. — God said to Noali and his sons, *' Whoso sheddeth 
 man's blood, by man shall his blood be shed." f From the general import of 
 these words, and because Noah's sons were joined with him in this commis- 
 sion it has been attempted to be explained away, that this command was 
 given to mankind in general, and not to the sovereign in particular ; which 
 makes nonsense of a very solemn and important divine gift : for in that case, 
 any one of Noah's sons had the power of life and death over their father 
 and sovereign, as well as he over them, which would be complete confusion ; 
 there could not then be any judge, because every man would be a judge over 
 his judge ! It was a command of obedience to the sons, that was to extend 
 to all generations to the end of the world, and had respect to Noah's sons 
 when they themselves should become sovereigns, in the course of succession 
 to their father's power and authority ; whereas, had the commission been 
 given to Noah alone, without associating his sons with him, it might have 
 been construed into a particular grant to Iiim alone, and not to be descendible 
 to other governors after him j therefore the commission is in general terms, 
 " by man shall his blood be shed,'' that is, by such men, to the end of the 
 world, who shall be justly vested with sovereign authority. These men, 
 Shem, Ham, and Japheth, were well certified of their father's authority 
 over them ; it was no new thing to them, it had been established from tlie be- 
 ginning, as well by the positive institution of God, as by the dictates of na- 
 ture : and, therefore, it being manifest that Noah had no superior but God 
 only, his authority must have been supreme and absolute over his sons, who 
 were his subjects ; and it must follow that the power of life and death was to 
 be executed by Noah over his sons and their children after them, who all 
 constituted his subjects ; and whoever inherited his power and authority, in- 
 herited likewise the power of life and death conferred on him by God him- 
 self, and which through him is inherent in every lawful sovereign, to the 
 end of the world. And the words of the Mosaical law are very emphatical 
 
 * Genesis ix. 25, 26, 27. t Ibid, ix. 6. 
 
PROCEEDINGS IN COURTS OF LAW. 185 
 
 in prohibiting the pardon of murderers : " Moreover, ye shall take no satis- 
 faction for the life of a murderer who is guilty of death, but he shall surely 
 be put to death ; for the land cannot be cleansed of the blood that is shed 
 therein, but by the blood of him that shed it."* 
 
 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 of the legislature of every country. 
 And it is in vain for any criminal to say, that this or that penalty is too 
 severe for his crime ; for it is a maxim of the constitution, that every man 
 consents expressly or impliedly to all the acts of the legislature. The 
 criminal code is, therefore, a constituent part of that original contract into 
 which every man enters when he first becomes a member of society ; it 
 was intended, and continued to contribute to his personal safety and happi- 
 ness, till his own folly brought down its terrible vengeance on 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 alone vengeance 
 belongeth ; " vengeance is mine, I will repay, saith the Lord." Neither is it 
 awarded to make an atonement. For every wilful violation of human laws 
 that are contrary to revelation, is a breach of the moral law ; and no 
 human suffering can remove the guilt of the offender, or make whole the 
 law which he has broken. Suffering is the effect of transgression, and it 
 is absolutely impossible that an effect should destroy the cause which pro- 
 duced it : for instance, no length of confinement of a debtor, 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. "Therefore," says St Paul, " by the deeds of the law there 
 shall no flesh be justified in his sight ; for by the law is the knowledge of 
 sin. But now the righteousness of God without the law is manifested, being 
 witnessed by the law and the prophets ; even the righteousness of God, 
 which is by faith of Jesus Christ unto all and upon all them that believe, 
 for there is no difference ; for all have sinned and come short of the glory 
 of God. Being justified freely by his grace through the redemption that 
 is in Christ Jesus ; whom God has set forth to be a propitiation through 
 faith in his blood, to declare his righteousness for the remission of sins that 
 are past, through the forbearance of God."f 
 
 The sole design, then, of the legislature in enacting punishments is to 
 prevent in others the commission of the same crimes in future. This is ef- 
 fected in three ways ; either by amendment of the offender himself, in suffer- 
 ing corporeal punishments, such as exile, fines, imprisonment, and the like ; 
 or by deterring of others by the dread of example, which gives rise to all 
 open and ignominious punishments ; or by depriving the criminal of the 
 
 * ?Tumbcrs xxxv. 31, 33. t Uoinaiis iii. 20—25. 
 
 2 A 
 
186 PROCEEDINGS IN COURTS OF LAW. 
 
 power of doing farther mischief, which is accomplislied either by death, 
 perpetual imprisonment, or banishment for life. The measure of human 
 punishments must be left to the wisdom and discretion of the legislature, 
 to enact such penalties as are warranted by the laws of nature and of 
 society. They should be such as seem best adapted to answer the end of 
 prevention, and not of a vindictive nature. Tlie 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 would award a strong man to 
 strike a weak man who had struck him : again, in some cases it would be 
 inadequate to the offence ; as if a man were sentenced to lose one of his eyes, 
 who had put out his neighbour's only eye. In other instances it is impossi- 
 ble to apply it ; as in the case of theft, defamation, forgery, &c. 
 
 There are, however, some general principles to be regarded in allotting a 
 punishment which shall be adequate to the offence. It is necessary to at- 
 tend to the object of an injury ; to the violence of passion or temptation 
 under which it was committed, to the age, education, 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 the measure of 
 punishment. As therefore punishments are 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 happiness, 
 and which a man has the most frequent and easy opportunities of commit- 
 ting. Hence, it is in more cases capital for a servant to rob his master 
 than for a stranger. 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. — Unreasonable 
 severity in the punishment of crimes, is thought by many wise and good 
 men to defeat its own end. They are of opinion that crimes are more 
 effectually prevented by the certainty than by the severity of the punish- 
 ment ; because, when the severity of tlie law is very great, their execution 
 is hindered by public humanity. A feeling man will decline to prosecute, 
 when he thinks the conviction would be followed by excessive punishment ; 
 and a merciful prince, influenced by similar motives, will be often constrain- 
 ed to pardon the criminal, or dispense with a part of the sentence of the law. 
 
 IV. Homicide — It does not fall within the limits of this work to give 
 a specification of all the crimes of which the fallen nature of man is 
 guilty, and for which the laws of every well-governed realm has provided 
 just and salutary punishments. The greatest crime that can possibly be 
 committed against the persons of any of the king's liege subjects, is the 
 wilful taking away of that life which is the immediate gift of God. No 
 man has even the authority to destroy his own life, much less has he the 
 privilege of depriving his neighbour of his : except under certain circum- 
 stances ; when he is either permitted or commanded to do so, by tlie laws 
 
PROCEEDINGS IN COURTS OF LAW. 187 
 
 of nature or of revelation. But as the best action may be debased by 
 the unworthy motives from which it originated ; so even the killing of a 
 fellow creature may be altogether an innocent act, if there be a total 
 absence of all malicious intention or premeditated design. And in such 
 cases, under the Jewish dispensation, the divine law provided an expiation. 
 " If one be found slain in the land which the Lord thy God giveth thee to 
 possess it, lying in the field, and it be not known unto thee who hath 
 slain him. Then thy elders and thy judges shall come forth, and they 
 shall measure unto thee the cities which are round about him that is 
 slain : and it shall be, that the city which is next unto the slain man, even 
 the elders of that city shall take an heifer that hath not been wrought 
 with, and which hath not drawn in the yoke : and the elders of that city 
 shall bring down the heifer into a rough valley, which is neither eared 
 nor sown, and shall strike off the heifer's neck there in the valley : and 
 the priests, the sons of Levi,' sliall come near : (for them the Lord thy 
 God hath chosen to minister unto him, and to bless in the name 
 of the Lord :) and by their word shall every controversy and every 
 stroke be tried : and all the elders of that city that are next unto the 
 slain man, shall wash their hands over the heifer that is beheaded in 
 the valley : and they shall answer and say, our hands have not shed this 
 blood, neither hath our eyes seen it : be merciful, O Lord, unto thy people 
 Israel, whom thou hast redeemed, and lay not innocent blood unto thy 
 people of Israel's charge. And the blood shall be forgiven them."* 
 
 The laws of England, therefore, with their usual regard to reason and 
 revelation, very properly contemplate homicide in three points of view ; 
 1. Justifiable : 2. excusable : and 3. felonious. 
 
 1 . Justifiable homicide is of various kinds ; it may be such as arises 
 from some unavoidable necessity^ without the consent of the will of the 
 perpetrator, who is therefore without any blame : as, when the law 
 requires"\{, one, by virtue of his office, puts another to death, who had 
 forfeited his life by the laws and verdict of his country. This is an act 
 not only of necessity but of duty : and is therefore not only justifiable but 
 commendable when the law requires it. But the law must require it, other- 
 wise it is neither justifiable nor commendable : therefore, wantonly to kill the 
 greatest malefactor, an attainted or outlawed felon or traitor, with de- 
 liberation, uncompelled and extra-judicially, is murder. And further, if 
 judgment of death be given by a judge unauthorized by a lawful commis- 
 sion, and execution be done accordingly, the judge is guilty of murder. 
 And on this account, although Sir Matthew Hale accepted the place of a 
 judge of the common pleas under Cromwell's government, yet he declined 
 to sit on the crown side at the assizes and try cases of life and death. 
 
 * Dent. xxi. 1—8. 
 
188 PROCEEDINGS IN COURTS OF LAW. 
 
 And his reason was, that, Cromwell being a usurper, he could not give a 
 valid commission ; and, therefore, executions under his authority were cases 
 of murder : but as disputes concerning civil property must be decided in 
 tlie worst of times, he acted as a judge in civil cases during the whole of 
 the usurpation. Also judgment, when legal, must be executed by the 
 proper officer or his appointed deputy ; and if another person do it of his 
 own accord, even though it be the judge himself, it is held to be murder. 
 And farther, it must be done agreeably to the sentence of the court ; 
 for if an executioner beheads one who is adjudged to be hanged, or 
 vice versa, it is murder j because he is merely ministerial, and therefore 
 only justified when he acts under the authority and compulsion of the law. 
 Again, homicide is justifiable when it is committed to advance the pubfic jus- 
 tice ; as when an ofiicer in the execution of his office, either in a civil or a 
 criminal case, kills a man who resists him. So, fikewise, if a man is killed in 
 attempting to commit a robbery, or in breaking open a house in the night- 
 time, the slayer only commits a justifiable homicide, and the law considers 
 that he has done a commendable rather than a blamable act. Indeed it 
 is a constitutional maxim that one may lawfully kill anotlier who forcibly 
 attempts to commit any crime that is punishable with death. The law 
 justifies a woman who kills one in an attempt to ravish her ; also a husband 
 or father, if he kills a man who attempts to commit a rape on his wife or 
 daughter, but not if he detects them in adultery by tlie female's consent, 
 because the first is forcible and felonious, but the latter is not. 
 
 2. Excusable homicide is of two sorts j either by misadventure or upon 
 a principle of self defence. Homicide by misadventure, is when one in 
 doing a lawful act kills another without any intention of hurting him. 
 As if a parent or a master or an officer, in moderately correcting a child, 
 apprentice, or soldier, should happen to occasion his death, it is only a 
 misadventure, because moderate correction is a lawful act. 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 tlie least, according to circumstances. A 
 tilt or tournament, the martial diversion of our warlike ancestors, was an 
 unlawful act ; and so are boxing and fencing, the succeeding amusements 
 of their posterity ; and therefore, in the former case if a knight, or in the 
 latter a pugilist or fencer, should kill his antagonist, such killing is felony 
 or manslaughter. But if the king either command or permit such di- 
 version, it is then only a misdemeanour, because the act is lawful. To 
 whip another's horse whereby he runs over a child and kills him, is held 
 to be an accident in the rider, because he had not done any unlawful 
 act ; but it is manslaughter in the person who whipped the horse, be- 
 cause the whipping was a trespass and at best a piece of idleness of inevi- 
 tably dangerous consequence. And, in general, it is manslaughter and 
 
PROCEEDINGS IN COURTS OF LAW. 189 
 
 not misadventure only, if death ensues in consequence of any idle, dan- 
 gerous, and unlawful sports, such as shooting or casting stones in a town j 
 jbecause these are unlawful acts. 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 in law is termed chance 
 medley, or a casual affray. But if both parties be actually combating 
 at the time the mortal stroke is given, then the slayer is guilty of man- 
 slaughter ; but if the slayer has not begun the fight, or, having begun, 
 endeavours to decline any further struggle, but afterwards being closely 
 pressed by his antagonist, kills him to avoid his own destruction, this 
 homicide is excusable by self-defence. The law requires in this case that 
 the slayer should have retreated as far as he conveniently or safely can, 
 to avoid the violence of the assault, before he turns upon his assailant. 
 To constitute a homicide in self-defence, therefore, it must appear that 
 the slayer had no other possible means of saving his own life but by 
 killing his antagonist. 
 
 3. Felonious homicide is the killing of any human creature without 
 justification or excuse ; which may be done either by destroying ones self 
 or another person. 
 
 k.felo de se, or self-murderer, is one who deliberately puts an end to 
 his own life, or commits any unlawful act which may occasion his own 
 death : as if, in maliciously shooting at another person, the gun bursts and 
 kills himself. Suicide admits of accessories ; as if one persuades another 
 to kill himself, and he does so, the adviser is guilty of murder. 
 
 Wilful, deliberate suicide, is the most heinous crime which a man can 
 commit : for no man has a right to anticipate the call of God, or to be- 
 reave the public of a member by destroying himself. Every person who 
 knowingly and wilfully destroys his own life is guilty of murder ; for God 
 only who gave us our life has a right to take it away ; and by conse- 
 quence, every man who offers violence to his own life, manifestly invades 
 the prerogatives and usurps the rights and authority of God. And the 
 same rebellious act by which he invades the prerogatives of the Almighty, 
 instantly cuts him off from all possibility of repentance, and hurries him 
 uncalled before his offended Creator and Judge. 
 
 " Dreadful attempt! 
 
 Just rushing from self- slaughter, in a rage 
 To rush into the presence of our Judge ; 
 As if we challenged him to do his worst, 
 And matter'd not his wrath.'' Blair^s Grave. 
 
 Men of loose principles have always entertained false notions of liberty, 
 honour, and courage. We learn, both from the laws of God and man, 
 that suicide is an abhorred practice, and whatever pretensions it makes to 
 honour and courage, it is but cowardice, fear, and the mark of a poor spii-it 
 
190 PROCEEDINGS IN COURTS OF LAW- 
 
 that sinks under the common calamities and ills of this life : a deed to be ab- 
 horred and condemned with all our zeal ; to be guarded against with our 
 utmost care, reason, and religion, by walking in all the commandments of 
 God blameless, and pouring out our prayers for his preventing and restrain- 
 ing grace, that his fear may ever be before us, and that we may never be 
 tempted above what we are able to bear, nor that such a dreadful impiety may 
 ever overcome us. A Christian who believes that the wrath of God is reveal- 
 ed against all unrighteousness ; that without repentance no sins will be for- 
 given ; that after death there can be no repentance : that such a man — pro- 
 fessing the faith of Christ crucified, and having covenanted with God in 
 baptism to take up the cross and bear it, if need be, unto death — should, in 
 the impatience of his soul when pressed by some calamity, deliberately 
 choose to throw off his burden by committing a sin of which he knows 
 he can never repent, but must venture the consequences to all eternity, 
 is what nobody could believe, if its too frequent practice did not convince 
 us that such desperate madness may be committed. When a man falls 
 into this melancholy resolution, he yields to his unrestrained passions ; so 
 that when great accidents happen, or " evil days come," he has no stay 
 or support, and his pride will not submit to bear the loss nor fall from 
 his former condition, but he abandons himself to despair of God's mercy, 
 which is of itself a great crime : but neither poverty nor bodily afflictions, 
 are so hard to bear as the shame, reproach, and infamy of so woeful a death 
 is to surviving relations, who are tormented with perplexing doubts and 
 fears concerning the future condition of the suicide. 
 
 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 has annexed such pun- 
 ishment to this horrid crime as the nature of the case admits. To affect the 
 former, therefore, the law directed that the dead body should have an igno- 
 minious burial, by being interred in the king's highway with a stake 
 driven through it : by a recent act, however, of the legislature, this part 
 of the punishment is now repealed. And with respect to his property : 
 all his goods and chattels shall be forfeited to the king. The end and in- 
 tention of the law in inflicting this degradation and confiscation, so well 
 calculated to restrain a man who regards his own character or the in- 
 terests of his family, from committing so dreadful a crime, is almost 
 wholly defeated by the too common practice of coroners' juries in return- 
 ing verdicts of lunacy ; when perhaps the evidence may be far from justi- 
 fying such a decision. Before a jury gives a verdict of lunacy, they 
 should well consider, whether, if the deceased had in the same frame of 
 mind killed another person instead of himself, the evidence before them 
 would have obliged them to acquit him of nilful murder. It is indeed a 
 common notion, that none but a madman would destroy himself; but 
 surely this sort of reasoning is very absurd : for is not the drunkard mad, 
 
PROCEEDINGS IN COURTS OF LAW. 191 
 
 who wastes his time and property wholly stupifying his senses and enervat- 
 ing his body, and thereby commits a sort 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 also 
 mad, who, in defiance of the plainest and most frequently repeated com- 
 mand of the Almighty, and under the denunciation of a curse, defiles his 
 neighbour's bed, notwithstanding the alarming menace, " that whore- 
 mongers and adulterers God will judge ?" Yet who ever thinks of ex- 
 cusing or extenuating either on the score of insanity ? A mistaken ten- 
 derness for the relatives of the suicide, and an unwillingness to deprive 
 them of his property by their verdict, frequently, no doubt, bias both the 
 coroner and the jury. But they have nothing to do with consequences, 
 and no consideration ought to come in competition with the solemn obli- 
 gation of their oath ; which requires the jury to give a verdict according 
 to tlie evidence. 
 
 The other species of criminal homicide, is that of kiUing another 
 person, which is divided into mcmslmighter and murder. 
 
 Manslaughter is defined to be " the unlawful killing of another without 
 malice eitlier expressed or implied : which may be either voluntarily, on a 
 sudden heat ; or involuntarily, but in the commission of an unlawful act." 
 
 If on a sudden quarrel two persons fight, and one of them kills the 
 other ; or if on such an occasion they go out into the field and fight, this 
 being one continued act, the killing is voluntary manslaughter. But if 
 in either case there be suflficient cooling time, for the passions to subside, 
 and reason to interpose, and the person provoked afterwards kills his ad- 
 versary, then he is guilty of murder. If two men deliberately agree to 
 fight for a wager, and one of them kills the other, it is murder ; because 
 the act of going out to fight for a wager, is in itself unlawful. Yet, in con- 
 tempt of all law, the debasing custom of pugilism is daily practised. 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 the minute details, give a la- 
 mentable proof of the vitiated taste of the public, and thus prostitute the 
 liberty of the press to the inj ury of public morals. Pugilism is a science 
 which might have been very suitable in a Roman amphitheatre before 
 heathen spectators, but is inconsistent with Christian morality. The laws 
 are sufficient to restrain these offenders, were there not a culpable remiss- 
 ness in enforcing them. In the year 1808, the magistrates of the county 
 of Cambridge very laudably passed certain resolutions at the Christmas 
 sessions to prevent prize fighting ; and Mr Justice Grose, in his charge 
 to the grand jury the following Lent assizes, highly commended their 
 conduct, and called upon the public in general to assist their endeavours : 
 and farther observed, that if after such notice any person should abet 
 
192 PROCEEDINGS IN COURTS OF LAW. 
 
 such practices, they would on conviction be liable to twelve months' im- 
 prisonment. 
 
 Involuntary manslaughter differs from homicide excusable by misad- 
 venture. The latter always happens in consequence of a lawful act ; but 
 the former, in the commission of one tliat is unlawful. The crime of 
 manslaughter amounts to felony, and the offender is punished by fine and 
 forfeiture of all his goods and chattels. 
 
 The legal definition of the horrid crime of mvrdcr is, " when a person 
 of sound memory and discretion, unlawfully killeth any reasonable crea- 
 ture in being, and under the king's peace, with malice aforethought, 
 either expressed or implied." 
 
 Unlawful killing may take place by poisoning, 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 
 neither strike a blow nor primarily intend the death of another ; as if 
 a parish officer should shift a pauper from parish to parish, till he dies 
 from want of food and proper care. But to constitute any killing, mur- 
 der, 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 dis- 
 tinguishes murder from all other killing, is that the killing must be com- 
 mitted with malice aforethought ; and this in law may either be express 
 or implied. Besides, those who entice others to drinking or other ex- 
 cesses which bring on diseases, and, by weakening the body, not only de- 
 prive them of health, the most valuable comfort of life, but by these means 
 hasten their death, cannot hope that God will hold them guiltless of blood. 
 When a person does an act, in itself lawful, but in an unlawful manner, 
 and without due caution and circumspection, as when a workman flings 
 down a stone or piece of timber into the street, and a man is thereby 
 killed, it may be either misadventure, manslaughter, or murder, according 
 to tlie circumstances under which the original act was done ; if it were 
 in a country village, where there are few passengers, and he calls out to all 
 people to have a care, it is only a misadventure ; but if it were in Lon- 
 don, or any other populous town, where people are continually passing, 
 it is manslaughter, even although he does give warning ; and if he knows 
 of people passing, and gives no warning at all, then it is murder, being 
 esteemed malice against all mankind. And whoever excites or prompts 
 another to such a pitch of anger and revenge, or blows the coals 
 of dissension between others, should it end in murder, cannot be free 
 of that commandment which says, thou shalt not kill. 
 
 " First, envy, eldest born of hell, imbrued 
 Her hands in blood, and taught the sons of men 
 To make a death which natui e never made 
 And God abhorr'd •, with violence rude to break 
 The thread of life ere half its length was run, 
 
PROCEEDINGS IN COURTS OF LAW. 193 
 
 And rob a wretched brother of his being. 
 With joy ambition saw, and soon improved 
 The execrable deed. 'Twas not enough 
 By subtle fraud to snatch a single life ; 
 Puny impiety ! whole kingdoms fell 
 To sate the lust of power : more horrid still, 
 The foulest stain and scandal of our nature, 
 Became its boast. One murder made a villain ; 
 Millions a hero." 
 
 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 accomplish his diabolical pur- 
 pose. Our Saviour and his apostles expressly applies the sixth com- 
 mandment to our words and secret intentions^ and to the several degrees 
 of causeless anger which break out into contumelious and reproachful 
 language : and St John assures us that whosoever hateth his brother is a 
 murderer, and " ye know," says he, " that a murderer hath no eternal life 
 abiding in him." But above all, our Saviour said, that " whosoever is angry 
 with his brother without a cause, shall be in danger of the judgment ; and 
 whosoever shall say to his brother Raca, shall be in danger of the council ; 
 but whosoever shall say. Thou fool, shall be in danger of hell fire."* 
 
 Deliberate duelling is an open breach of this commandment, and falls 
 under the description of express malice. And the law of England has 
 justly fixed the crime and punishment of murder on both the principals 
 and accessories of this unchristian practice : for the plea of self-preserva- 
 tion is utterly foreign to the conditions and circumstances of the man who 
 formally either gives or accepts a challenge ; and he adds to the sin of at- 
 tempting to take away his neighbour's life, by throwing himself into the 
 utmost peril of losing his own — both body and soul. For those wlio are 
 killed in such engagements, go into the intermediate state, not only void 
 of charity, but enflamed with malice and revenge, or at least with anger 
 and fury j and when these qualities are the last possessors of their souls, 
 with what society of spirits are they qualified to associate in the next 
 world ? But the same firmness and integrity, on the trial of a duelist, which 
 so eminently distinguish an English jury upon all other occasions, would 
 soon put a stop to this violation of all law, human and divine. Perhaps it 
 will be asked, what are men of honour to do, if they must not appeal to 
 arms ? The answer is obvious, if one gentleman have offended another — 
 he cannot give a more indisputable proof of genuine courage, than by 
 making a frank acknowledgment of his fault, and asking forgiveness of 
 the injured party ; and, on the other hand, if he has received an affront, 
 he ought as freely to forgive as he hopes to be forgiven of God. Still, it 
 may be urged that a naval or military oflScer, at least, must not decline a 
 
 * St Matt. V. 22. 
 2 B 
 
194 PROCEEDINGS IN COURTS OF LAW. 
 
 challenge, if he would maintain the character of a man of courage. But 
 it is 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 preserve their 
 honour j since the king has expressly forbidden any military man, on pain 
 of being cashiered, if an officer, and of suffering corporeal punishment, if 
 a non-commissioned officer or private soldier. Nor ought any officer or 
 soldier to upbraid another for refusing a challenge, when his majesty de- 
 clares that he considers such as having only acted in obedience to his royal 
 orders, and fully acquits him of any disgrace that may be attached to his 
 conduct.* 
 
 It is also murder by express malice, if a master or teacher, on 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 malignity of heart. Or if a master refuses an apprentice 
 necessary food or sustenance, or treats him witli such continued harshness 
 and severity as occasions his death, the law will apply malice, and the 
 offence will be murder. Implied malice is when one man wilfully poisons 
 another. In this case the law presumes that such a deliberate 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, kills liim in the 
 execution of his office, the law will imply malice, and consider the slayer 
 guilty of murder. If even on a sudden provocation one man beats an- 
 other in a cruel and unusual manner, so that he dies, although he did not in- 
 tend l)is death ; yet he is guilty of murder by express malice, that is, by an 
 express evil design. As when a park keeper tied a boy that was stealing 
 wood to a horse's tail and dragged him along the park, when a master 
 corrected his servant with an iron bar, and a schoolmaster stamped on his 
 scholar's belly, so that each of the sufferers died : these were justly held to be 
 murders ; because the correction being excessive, it must have proceeded 
 from a bad heart, and was equivalent to a deliberate act of slaughter. 
 
 To dismember, maim, or deface our neighbour's person must also be con- 
 sidered as a breach of this commandment, if wilfully committed. The 
 judgment of God has abundantly declared the guilt of such practices in 
 one of the slightest of these instances, the case of a bond-servant or slave ; 
 if the master had the cruelty to strike out a tooth, its penalty was the ser- 
 vant's emancipation from slavery. Besides, these outrages may have a na- 
 tural tendency to the death of the party, which frequently foUows, or to dis- 
 able the sufferer from afterwards gaining his bread, which eventually may 
 prove a more lingering and tormenting death. The late lord Ellenborough, 
 lord chief justice of the king's bench, introduced a bill into parliament in 
 the year 1803, in order to prevent this crime^ and which received the royal 
 
 * Art of War, sec. vii. 
 
PROCEEDINGS IN COURTS OF LAW. 195 
 
 assent on the 24th June that year ; it is the 57 of George III. as follows : 
 "An act for the further prevention of malicious shooting, and attempting 
 to discharge loaded fire-arms, stabbing, cutting, wounding, poisoning, and 
 the malicious using of means to procure the miscarriage of women ; and 
 also the malicious setting fire to buildings : and also for repealing the act 
 of king James I. entituled, ' an act to prevent the destroying and murder- 
 ing of bastard children,' and to make provisions in lieu thereof. 
 
 " I. Whereas, divers cruel and barbarous murders have been of late bar- 
 barously and wickedly committed in divers parts of England and Ireland, 
 upon the persons of divers of his majesty's subjects, either with an intent 
 to murder, or rob, or to maim, disfigure, or disable, or to do other grievous 
 bodily harm to such subjects : and, whereas, the provisions now by law 
 made for the prevention of such offences, have been found ineffectual for 
 that purpose : and whereas, certain other heinous offences committed, with 
 intent to destroy the lives of his majesty's subjects by poison, or with intent 
 to procure the miscarriage of women, or with intent by burning to destroy 
 or injure the buildings and other property of his majesty's subjects, or to 
 prejudice persons who have become insurers of, or upon the same, have 
 been of late also frequently committed, but no adequate means have been 
 hitherto provided for the prevention and punishment of such offences : Be it 
 therefore enacted, &c.. That if any person or persons shall, in either Eng- 
 land or Ireland, wilfully, maliciously, and unlawfully shoot at any of his 
 majesty's subjects, or shall wilfully, maliciously, and unlawfully present, 
 point, or level any kind of loaded fire-arms at any of his majesty's subjects, 
 and attempt by drawing a trigger, or in any other manner, to discharge 
 the same at his or their persons, or shall wilfully, &c. stab or cut any of 
 his majesty's subjects, with intent in so doing, or by means thereof, to mur- 
 der or rob, or to maim, disfigure, or disable such of his majesty's subjects 
 with intent to obstruct, resist, or prevent the lawful apprehension of sucli 
 persons, or his, her, or their accomplices, for any offences for which they 
 may be liable to be apprehended : or shall wilfully, &c. administer or cause 
 to be administered any deadly poison, or other noxious and destructive 
 substance or thing, with intent to murder, or to cause and procure tlie 
 miscarriage of any woman then being quick with child ; or shall wilfully, 
 &c. set fire to any house, bam, granary, hop-oast, malt-house, stable, 
 coach-house, out-house, mill, warehouse, or shop, which shall then be in 
 the possession of the person himself, or of any other person or body cor- 
 porate, with intention to injure or defraud any person or body corporate j 
 that then and in any such case, the persons so offending, their counsellors, 
 aiders, and abettors, knowing of and privy to such offence, shall be de- 
 clared felons, and shall suffer death without benefit of clergy.* Provided 
 
 * Benefit of clergy has been since that time aboUshed. 
 
196 PROCEEDINGS IN COURTS OF LAW. 
 
 that in case it shall appear on their trial, that such acts of stabbing or 
 cutting were committed under such circumstances as that, if death had 
 ensued thereupon, the same would not in law have amounted to the crime 
 of murder, that then and in every such case, such persons shall be deemed 
 and taken to be not guilty of the felonies whereof they shall be so indicted, 
 but be thereof acquitted. 
 
 " II. If any person or persons shall wilfully and maliciously administer 
 any medicine, drug, or other substance or thing whatsoever, or employ 
 or cause to be employed any instrument or means whatsoever, with intent 
 thereby to cause or procure the miscarriage of any woman not proved to 
 be quick with child at the time ; such persons, their counsellors, aiders, 
 and abettors, knowing of and privy to such offence, shall be declared guilty 
 of felony, and shall be liable to be fined, imprisoned, set in the pillory, 
 publicly or privately whipt, or to suffer one or more of said punishments, 
 or to be transported for any term not exceeding fourteen years, at the dis- 
 cretion of the court. 
 
 " III. The two acts for preventing the murdering of bastards in England 
 and Ireland are hereby repealed ; and women charged with the murder of 
 any issue of their bodies, male or female, which if born alive would be by 
 law bastard, shall proceed and be governed by the like rults of evidence 
 and presumption as in trials for murder. 
 
 " IV. Provided always, that women acquitted of such murder, but who 
 by secret burying, or otherwise, endeavour to conceal the birth, the court 
 shall adjudge such prisoner to be committed to the common jail or house 
 of correction, for any time not exceeding two years." 
 
 Tlie benefit of lord EUenborough's act was extended to Scotland, as his 
 statute comprehended only England and Ireland. The act for Scotland is 6 
 George IV. cap. 126, and was passed on the 5th July, 1825. After recit- 
 ing the preamble of the preceding act, and reciting the same list of crimes, it 
 states, that, on conviction of any of the crimes recited in lord Ellen- 
 borough's act, " they shall be held guilty of a capital crime, and receive 
 sentence of death accordingly." 
 
 " II. If any person in Scotland shall maliciously, &c. throw or otiierwise 
 apply to any of his majesty's subjects, any sulphuric acid or other corrosive 
 substance, calculated by external application to burn or injure the human 
 frame, with intent either to murder or maim, or disfigure, or disable, or 
 with the intent to do some grievous bodily harm to any of his majesty's 
 subjects, and where in consequence any person shall be maimed, disfigured, 
 or disabled, or receive grievous bodily harm ; on lawful conviction, such 
 person shall be held guilty of a capital crime, and receive sentence of death 
 accordingly. Provided that, if it appear on the trial that, if under the 
 circumstances of the case, death had ensued, the acts done would not have 
 amounted to the crime of murder, the prisoner shall not be held guilty of 
 
PROCEEDINGS IN COURTS OF LAW. 197 
 
 a capital crime. And provided also, that notliing in this or any other 
 statute enacting a capital punishment shall be held to affect the power of 
 the public prosecutor to restrict the pains of law." 
 
 Formerly the punishment of murder and manslaughter were one and 
 the same, both having the benefit of clergy ; so that none but unlearned 
 persons were put to death for this enormous crime : but now the benefit of 
 clergy is taken away from all murderers, &c. ;* and every person being con- 
 victed of murder, or of being accessory, before the fact, to murder, shall 
 suffer death as a felon ; and every accessory, to murder, after the fact, is 
 liable to transportation for life, or imprisonment with hard labour, at the dis- 
 cretion of the court. In atrocious cases it was frequently usual for the court 
 to direct the murderer, after execution, to be hung upon a gibbet, in 
 chains, near the place where the fact was committed ; but this was no part 
 of the legal judgment. This was quite contrary to the express command 
 of the Mosaical law, which says, " the body of a malefactor shall not re- 
 main all night upon the tree, but thou shalt in anywise bury him that day, 
 that the land be not defiled ;"-|- but it seems to have been borrowed from 
 the civil law, which, besides the terror of the example, gives also another 
 reason for this practice, viz. that it is a comfortable sight to the relations 
 and friends of the deceased. It is now however enacted, that the judge 
 shall pronounce sentence immediately after conviction, unless he sees cause 
 to postpone it, and shall in passing sentence direct him to be executed on the 
 next day but one (unless the same shall be Sunday, and then on the Mon- 
 day following), and that his body be delivered to be dissected and anato- 
 mized ; and that the judge may direct his body to be afterwards hung in 
 chains, but in nowise to be buried without dissection. And during the 
 short but awful interval between sentence and execution, the prisoner shall 
 be kept alone, and sustained with only bread and water. But a power 
 was allowed to the judge, on good and sufficient cause, to respite the exe- 
 cution, and relax the other restraints of this act. A late act, however, 
 has now altered this practice in some respects, and the sentence expresses 
 " that the body of the offender shall be dissected or hung in chains, 
 whichsoever of the two the court shall order." 
 
 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 suflScient to prove 
 the murder. A person convicted of petit treason, is sentenced to be 
 drawn upon a hurdle, hanged, and dissected. 
 
 Forcible abduction and marriage, which is vulgarly called stealing an 
 heiress, is an offence against the female part of his majesty's subjects. It 
 
 * 9 Geo. IV. 31. t Deut. xxi. 23. 
 
198 PROCEEDINGS IN COURTS OF LAW. 
 
 is now enacted, that if any woman having an interest in real or personal 
 estate, or being an heiress presumptive, or next of kin to any person 
 having such interest, shall be taken away or detained against her will by 
 any person from motives of lucre and with intent to marry or defile her, or 
 to cause her to be married or defiled by any other person ; every such of- 
 fender and his abettors shall be guilty of felony, and is liable to transport- 
 ation for life or for years, or imprisonment with or without hard labour.* 
 
 An inferior degree of the same, but not attended with force, is when 
 any person takes away an unmarried girl, being under the age of sixteen 
 years, out of her parents' possession, or any other persons having the law- 
 ful charge of her, and against their will ; such offender is guilty of a mis- 
 demeanor and liable to a discretionary punishment by fine and imprison- 
 ment. By the new marriage act,f if the parties contract marriage, such 
 marriage is not void ; but the party concerned in procuring it forfeits all 
 interest in the property thereby obtained, and effectual means are provided 
 for securing the property to the issue, under the directions of either the 
 courts of chancery or of the exchequer. 
 
 Courts op Criminal Jurisdiction The criminal law of Eng- 
 land is not vindictive, but, on the contrary, merciful. It acts with a 
 promptitude on conviction that is calculated to exhibit an awful example 
 and strike terror into offenders : but it at the same time manifests great 
 tenderness and compassion, by providing 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 persons whom there is good 
 ground for suspecting of future misconduct, to give, by some 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 shown. 
 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 be- 
 fore the proper tribunal. 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 kingdom : 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 op 
 
 * 9 Geo. iv. c. 31. t 4 Geo. iv. c. 76. 
 
PROCEEDINGS IN COURTS OF LAW. l99 
 
 PARLIAMENT. This court is supreme, not only in making, but also in 
 executing laws. In it the greatest offenders, whether peers or commoners 
 may, and frequently have been prosecuted and punished by trial on impeach- 
 ment : which is a presentment to the house of Lords by the Commons of 
 Great Britain in parliament assembled ; as they are the most solemn grand 
 jury in the nation. 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 misdemeanours. The king's ministers being responsible to 
 parliament unquestionably exposes them to party caprice and revenge, and 
 subjects them to the liability of being harassed with expensive and vexatious 
 impeachments. On the other hand, there would be considerable danger of 
 their screening themselves from just prosecution and merited punishment, by 
 pleading a pardon under the great seal, did not the law wisely prevent 
 such an abuse of the royal prerogative. The king cannot put a stop 
 to tlie lords' proceedings to try the articles of impeachment exhibited by 
 the commons, it being enacted that no pardon under the great seal shall 
 be pleadable to an impeachment by the commons of Great Britain in par- 
 liament* 
 
 The most public criminal court 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 for the occasion : and it is 
 necessary to bestow it 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 treason, felony, or mis- 
 prision of treason, the king creates a lord high steward pro hac vice, by 
 commission under the great seal which recites the indictment so found, 
 and gives his grace power to receive and try it. He then directs a pre- 
 cept to a sergeant at arms to summon the lords to attend and try the in- 
 dicted peer. Every lord present shall vote in the trial of such peer, first 
 taking the oaths of allegiance and supremacy, and subscribing the declar- 
 ation against popery. But a majority of twelve is required to convict a 
 peer. In the court of the lord high steward, which is held in the recess of 
 parliament, he is the sole judge in matters of law, as the lords' triers are 
 in matters of fact ; and as they must not interfere with him in regulating 
 the proceedings of the court, so he has no right to intermix with them in 
 giving any vote upon the trial. 
 
 It has been a point of controversy whether the bishops, being the first 
 estate of parliament, have any right to sit in the court of the lord high 
 steward to try indictments of treason and misprision. Some incline to 
 
 * 12—13. Wil. iii. c. 2. 
 
'^00 PROCEEDINGS IN COURTS OF LAW. 
 
 imagine that tliey are included under the general words of the statute, 
 " all peers who have a right to sit and vote in parliament ;" but 
 though bishops are clearly lords of parliament, yet their blood not being 
 ennobled, they are not universally allowed to be peers with the temporal 
 nobility. However, there is no instance on record of their ever Iiaving 
 sat on trials for capital offences, even upon impeachments or indictments 
 in full parliament, much less in the court of the lord steward ; they usu- 
 ally withdraw voluntarily, but enter a protest declaring their right to 
 stay. In the Constitutions of Clarendon, made in the reign of Henry II., 
 the bishops are expressly excused rather than excluded, from sitting and 
 voting in trials which concern life and limb ; and archbishop Becket's 
 quarrel with Henry was not on account of being excepted, but because he 
 compelled the bishops to attend at all. The determination, however, of 
 the house of lords in the earl of Danby's case, 15th May, 1679, that the 
 lords spiritual have a right to stay and sit in court in capital cases, till the 
 court proceeds to the vote of " guilty or not guilty," which is quite conso- 
 nant to the Clarendon Constitutions, and has ever since been adhered to. 
 
 Another public criminal court, is the court of King's Bench, which is 
 divided into a crown side, and a plea side,— which on the crown side takes 
 cognizance of all criminal causes, from high treason, down to the most 
 trivial misdemeanor, or breach of the peace. Indictments from all the 
 inferior courts may be removed into this court by writ of certiorari, and 
 tried either at bar or at nisi prins, by a jury of the county. All informa- 
 tions filed in the court of king's bench, and all indictments removed there 
 by certiorari, if not tried at the bar of the court, which rarely happens, 
 must be tried at the assizes by writ of nisi prius. The judges of this court 
 are the supreme coroners of the kingdom, and in virtue of that dignity re- 
 versed the return of the coroner's jury in the case of the policeman, Ro- 
 bert Cully, who was killed in the Calthorpe street riot. They are also 
 sovereign justices of oyer and terminer, and of gaol delivery. Into this 
 court also has reverted all that was good and salutary of the jurisdiction 
 of the court of star chamber, which was a court of very ancient origin, 
 consisting of lords spiritual and temporal, lay privy councillors, together 
 with two judges of the courts of common law, without the intervention of 
 any jury. Their jurisdiction extended legally over riots, perjury, misbe- 
 haviour of sheriifs, and other notorious misdemeanors, contrary to the 
 laws of the land. It was finally abolished by Charles I., to the general 
 joy of the whole nation. 
 
 The high court of Admiralty held before the lord high admiral of Eng- 
 land, or his deputy, styled the judge of the admiralty, is not only a court 
 of civil, but also of criminal jurisdiction. It has cognizance of all crimes 
 and offences committed on the seas, or on the coasts, out of the body or 
 extent of any English county. But, as this court proceeded without jury, 
 
PROCEEDINGS IN COURTS OF LAW. 201 
 
 the caprice of the judge was apt to be guilty of arbitrary and oppressive 
 conduct, aud it was deternnined that offences should be tried by commis- 
 sioners of oyer and terminer under the king's great seal, the admiral or 
 his deputy, and three or four more — the indictment being first found by a 
 grand jury, and" afterwards tried by a petit jury. 
 
 These four courts may be lield in any part of the kingdom, and their 
 jurisdiction extends over crimes that arise from one end of it to the other. 
 There are also courts of a general nature, and universally diffused over 
 the nation, but of a local jurisdiction and confined to particular districts. 
 
 The courts of Oyer and Terminer, and general gaol delivery, which are 
 held before the king's commissioners ; among whom are generally the two 
 judges of the courts at Westminister. These courts are held twice a-year 
 in every county in the kingdom, except the four northern ones, where they 
 sit only once a-year. But in London and Middlesex they are open eight 
 times a-year. The commission of general gaol delivery empowers the 
 judges to deliver every prisoner who shall be in the gaol when they arrive, 
 for whatever crimes committed ; so that one way or other the gaols are in 
 general cleared, and all offenders tried, punished, or delivered, twice in every 
 year : a constitution of singular use and excellence. The justices of the 
 peace, wherein tlie assizes are held, are all bound by law to attend there 
 on pain of being fined, and to assist the judges in such matters as lie within 
 their knowledge and jurisdiction. No man can sit as a judge of assize in 
 his native county, although he may act therein as a commissioner of oyer 
 and terminer and gaol delivery. 
 
 The court of general quarter sessions of the peace must be held in every 
 county, once in every quarter of a-year j that is, the first week after 
 Michaelmas- day — the first week after ^he Epiphany — the first week after 
 the close of Easter — and in the week after tlie translation of St Thomas 
 the martyr, or 7th July. It must be held before two or more justices of 
 the peace, one of whom must be of the quorum. Its jurisdiction extends 
 to the trying and determining all felonies and trespasses whatsoever. The 
 justices, however, seldom or ever try any greater offences than larcenies -, 
 murders, and otiier capital felonies, they usually remit to the assizes for 
 more solemn trial. The records or rolls of the sessions are committed to 
 the custody of a special officer, called the custos rotulorum, who is always a 
 justice of the quorum, and a man of integrity and honour. He is the princi- 
 pal civil, as the lord lieutenant is the principal military oflicer in the 
 county, and is nominated by the king's sign manual. To him belongs the 
 appointment of the clerk of the peace, which office he is prohibited from 
 selling for money. 
 
 In most corporation towns there are quarter sessions held before justices 
 of their own, within their respective limits ; besides these there are occa- 
 sional petty sessions, holden both in towns and counties, in the intervals of 
 
 2 c 
 
202 PROCEEDINGS IN COURTS OF LAW. 
 
 the quarter sessions, for the despatch of business of inferior moment ; such 
 as the licensing of ale-houses and the like. 
 
 The Sheriff's Tourn^ or rotation, is a court of record, held twice every 
 year, before the sheriff in different parts of the county, within a month 
 after Easter and Michaelmas ; being indeed only the turn of the sheriff to 
 keep a court-leet in each respective hundred. This is therefore the great 
 court-leet of the county, as the county-court is the court-baron ; for it 
 was taken out of this, for the sheriff's ease. 
 
 The next court to be noticed is the court-leet or view of franh-pledge ; 
 •which is a court of record, held once a-year, and not oftener, within a 
 particular hundred, lordship, or manor, before the steward 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 preservation of 
 the peace, and the chastisement of those who disturbed it. All the free- 
 holders of the district are obliged to attend this court, if required, each 
 freeholder being considered by the wise system of the great Alfred as 
 pledges for each other's good behaviour. But persons under twelve and 
 above sixty years old, peers, clergymen, women, and the king's tenants in 
 ancient demesne, are excused from attendance there ; all others being bound 
 to attend on the jury, if required, and make their due presentments 
 Anciently it was customary to summon all the king's subjects, as they re- 
 spectively grew to years of discretion and strength, to come to the court- 
 leet, and there take the oath of allegiance to the king. But this court 
 has gradually degenerated into little more than a name. 
 
 The coroner's court is also 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 ; and he is only entitled to do this on view of the body. 
 
 The court of the clerk of the market is incident to every fair and market 
 in the kingdom, to punish misdemeanors therein, as the court o{ piepoudre 
 is to determine all disputes concerning property. Its jurisdiction is prin- 
 cipally the recognizance of weights and measures, whether they be the true 
 standard or not ; which standard was formerly committed to the custody of 
 the bishop of the diocese, who appointed a clerk (or clergyman) under him 
 as inspector ; and hence, the officer, though now always a layman, is 
 called clerk of the market. 
 
 Besides these there are several other courts of a private or special cri- 
 minal jurisdiction. 
 
 The court of the lord steward, treasurer or comptroller of the king's 
 household, instituted by Henry VIII. to inquire of felony by any of the 
 king's sworn servants under the degree of a lord, in confederating, 
 compassing, conspiring, and imagining the death or destruction of the 
 king or any of his privy council. The inquiry must be made by a jury 
 of twelve sober and discreet men of the king's household. 
 
PROCEEDINGS IN COURTS OF LAW. 203 
 
 The court of the steward of the Marshalsea, erected by Henry VIII., 
 which inquires into and punishes all treasons, murders, manslaughters, 
 bloodshed, &c., within two hundred feet from the gate of any of the king's 
 palaces, or houses where the royal person shall abide. The proceedings 
 are by jury of the officers and sworn servants of the household : part of the 
 punishment is to cut off the hand. 
 
 Lastly, there are the criminal courts of the lord high stewards of the two 
 universities of Oxford and Cambridge, which have jurisdiction over their 
 respective members under a trial by jury. It has authority to determine all 
 causes of property wherein a privileged person is one of the parties. A bill 
 of indictment must first be found by a grand jury, and then the cognizance 
 claimed. The high steward issues one precept to the sheriff of the county, 
 who, thereupon, returns a panel of eighteen freeholders j and another pre- 
 cept to the bedels of the university, who also return a panel of eighteen 
 matriculated laymen ; and by a jury formed of one-half of each of these, 
 the indictment is tried in the guildhall of the cities of Oxford or Cambridge. 
 And if it be necessary to award execution, in consequence of finding 
 the party guilty, the sheriff of the county must execute the university pro- 
 cess, to wliich he is annually bound by oath. 
 
 Proceedings in Criminal Cases. — The proceedings in the courts 
 of criminal jurisdiction are two-fold ; summary, and regular. 
 
 By a summary proceeding is meant the condemning or acquitting of an 
 accused person, by judges appointed by statute, who are thereby empower- 
 ed 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 deter- 
 mined by the commissioners of excise, or by justices of the peace. Again, 
 the magistrates have the power to punish in a summary way, according to 
 act of parliament, all persons guilty of swearing, drunkenness, &c. To 
 avoid, however, the abuse of this authority as much as possible, the law has 
 made it indispensably necessary that the party accused should be sum- 
 moned to appear before the magistrates previous to any trial of the fact, 
 in order that he may be heard in his own defence. Lastly, if a contempt 
 be committed in any of the courts, the offender may instantly be appre- 
 hended and imprisoned at the discretion of the judge, without any fur- 
 ther proof or examination. 
 
 But the regular and orderly method of proceeding is, by arrest in the 
 first place : which 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 
 apprehended unless he is charged with such a crime as will, at least, jus- 
 tify his being held 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 
 
204. PROCEEDINGS IN COURTS OF LAW. 
 
 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 a?ii/ justice for the county, or specially 
 before him by whom the warrant is granted. In the latter case it is called 
 a special warrant. A warrant from the chief or other justice of the 
 king's bench extends all over the kingdom, and is not dated from any 
 county, but merely dated England. But the warrant of a justice of the 
 peace for one county, must be backed by a justice in another, before it can 
 be executed there. And now, any warrant for apprehending an English 
 offender wlio may have escaped into Scotland, or vice versa, may be endors- 
 ed and executed by the local magistrates, and tlie offender conveyed back 
 to that part of the united kingdom where the offence was committed. 
 
 In the year 1766, the house of commons declared, by a vote of the 
 house, that the issuing of general warrants to apprehend all persons sus- 
 pected of being guilty of the crime specified therein, without specially 
 naming such persons, was illegal. Before that period, it had been the 
 uniform practice of the secretaries of state, from tlie time of the 
 Revolution, to adopt this method on particular occasions, without having, 
 in any instance, been censured, until the 30th April, 1763, when John 
 Wilkes was apprehended on this authority. Wilkes commenced an action 
 in the 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, 
 Wilkes obtained a verdict. His lordship pronounced tlie warrant under 
 which Mr Wilkes had been arrested, to be unconslitntiojial, illegal, and 
 absolutely void. A decision so favourable to the liberties of the subject, 
 rendered chief justice Pratt extremely popular, and he not only received 
 marks of public favour from various parts of the kingdom, but his majesty 
 George III., who was always a promoter of the civil and religious liberties 
 of his country, signified his royal approbation of his conduct by creating him 
 a peer of Great Britain, by the style and title of earl of Camden. 
 
 But arrests may be executed by officers without a warrant. A justice of 
 the peace may apprehend any one committing a breach of the peace in liis 
 presence. The sheriff, too, and the coroner, may apprehend any felon 
 within the county without a warrant. The constable has likewise great 
 authority in criminal cases ; 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 other- 
 wise taken. But should the constable be killed in attempting to arrest a 
 felon, it is murder in all concerned. If an officer arrest a felon under a 
 warrant, it must be in all respects good, otherwise it is not murder if the con- 
 stable is killed in its execution. Watchmen may, by virtue of their office, ar- 
 rest all offenders, and especially night-walkers, and commit them to custody 
 
PROCEEDINGS IN COURTS OF LAW. 205 
 
 until the morning*. When a felony has been actually committed, a private 
 person acting with a good intention, and upon such information as 
 amounts to a reasonable and probable ground of suspicion, is justified in 
 apprehending the suspected person without a warrant, in order to carry 
 him before a magistrate. * But where a private person had delivered 
 another into the custody of a constable, on a suspicion which afterwards 
 appeared to be unfounded, it was held that the person so arrested might 
 maintain an action of trespass for an assault and false imprisonment 
 against such private person, although a felony had actually been com- 
 mitted.f 
 
 As an encouragement to any man to make exertion for the apprehen- 
 sion 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 entitled to the horses, furniture, arms, money, and 
 other goods taken upon the person of the robber ; with a reservation, 
 however, of the right of any person from whom the same may have been 
 stolen. And by various statutes, such persons as apprehend and convict 
 felons guilty of burglary, house-breaking, horse-stealing, and those who. 
 are found at large during the term for which they were ordered to be 
 transported, shall be exempt from serving all parish offices, and shall re- 
 ceive specific sums of money, from ^10 to £40, according to circum- 
 stances. And now, if any offender has escaped from Ireland into England 
 or Scotland, or vice versa, he may be apprehended by a warrant indorsed 
 by a justice of the peace of the county or jurisdiction within which the 
 offender shall be found ; and he may be conveyed to that part of the united 
 kingdom, in which the warrant is issued and the offence is charged to have 
 been committed. 
 
 When an offender is arrested, he is taken before a magistrate, who takes 
 down in writing the prisoner's examination, and the information of those 
 who bring him. If the suspicion entertained against him 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 appearance to answer the charge brought against him. He 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 persons accused of treason and murder cannot be 
 bailed, — nor in cases where bills of indictment have been found for man- 
 slaughter, — nor such as, having been committed 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 excommunicated persons, — nor in many other cases of a doubtful 
 
 * 7 & 8 Geo IV., c. 29. t Professor Christian's Notes. 
 
206 PROCEEDINGS IN COURTS OF LAW. 
 
 nature. If it is not a bailable offence, or the parly cannot find sufficient 
 security, he is to be committed to the county gaol, by the justices' mittimus, 
 or warrant under his hand and seal, narrating the cause of his committal, 
 to be kept in safe custody until delivered by due course of law. By the 
 late statute of 7 George IV., the law on the subject of bails is entirely 
 changed ; that statute provides, that if a charge of felony before one or 
 more justices be supported by positive and creditable evidence of the fact, 
 or of evidence which, if not explained or contradicted, shall, in the opinion 
 of the justice, or justices, raise a strong presumption of the guilt of the 
 accused party, the person shall be committed for trial ; but if there be only 
 one justice present and the whole evidence does not raise a strong pre- 
 sumption of guilt, nor warrant the dismissal of the charge, the prisoner is 
 to be remanded till he can be taken before two justices. If the prisoner be 
 brought before two or more justices, either in the first instance or after 
 having been remanded, and the evidence in support of the charge shall, in 
 their opinion, not be such as to raise a strong presumption of guilt, but if, 
 nevertheless, there appears sufficient ground for a judicial inquiry, such 
 justices may admit the prisoner to bail. Since this statute was passed, 
 therefore, a single justice cannot, under any circumstances, take bail upon 
 a charge of felony ; he must either dismiss the charge or commit the pri- 
 soner, if there be positive evidence, or a strong presumption of guilt ; and 
 if there is not a strong presumption of guilt, but he thinks that he ought 
 not to dismiss the charge, he must remand the prisoner till he can be 
 brought before two justices. 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 j for both the common law and 
 the preceding act require him to admit all persons to bail whose offences 
 are within the provisions of the act. Nevertheless, to prevent any magis- 
 trate from taking either excessive or insufficient bail, he is liable in either 
 case to be fined, whenever he forgets the duties of his office, and is influ- 
 enced by his own feelings, instead of being guided by the principles of rea- 
 son, justice, and humanity. 
 
 This commitment is not intended as a punishment, but only as an indis- 
 pensable 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 his safe custody, and the gaoler's responsibility. 
 He should not be unnecessarily loaded with irons, nor suffer any other 
 hardship than what is absolutely inseparable from the loss of his personal 
 liberty. The law considers every man as innocent till a jury of his coun- 
 trymen have declared him to be guilty. Within the last century 
 several statutes have regulated the management of gaols, so that acts of 
 oppression are of very rare occurrence, and, when they do occur, are 
 more frequently the consequence of tlie prisoner's turbulence and ill be- 
 
PROCEEDINGS IN COURTS OF LAW. «07 
 
 haviour, than in any disposition to tyranny or oppression on the part of 
 the gaoler. And a humane and conscientious gaoler will guard against 
 having his feelings hardened by daily witnessing so many objects of mis- 
 ery ; and, whilst he diligently attends to his charge to keep his prisoners 
 safely, he will bear in mind that they may possibly be clear of the crimes 
 laid to their charge. He will not needlessly thrust them into the inner 
 prison, nor make their feet fast in the stocks, like the gaoler of Philippi ; 
 but will show a compassionate regard to their persons. He will pour " wine 
 and oil" into the wounds of their guilty conscience; and when the magistrates 
 send to let the prisoners go, he will suffer them to depart and go in peace, 
 without exacting from them more fees than what are just and equitable. 
 
 Prosecution is the next step towards the punishment of offenders, and 
 that is either upon a previous finding of the fact by an inquest or grand 
 jury, or without such previous finding. The former is either by present- 
 ment or indictment. 
 
 A presentment, generally taken, is a very comprehensive term, includ- 
 ing not only presentments properly so called, but also inquisitions of office, 
 and indictments by a grand jury. A presentment, properly speaking, is 
 the notice taken by a grand jury of any offence from their own knowledge 
 or observation, without any bill of indictment laid before them, at the suit 
 of the king ; such as the presentment of a nuisance and the like, upon 
 which the officer of the court must afterwards frame an indictment before 
 the party prosecuted can be put to answer it. 
 
 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. To this end the sheriff of every county is bound to return to every 
 session of the peace, and every commission of oyer and terminer^ and of 
 general gaol-delivery, twenty -four good and lawful men of the county, to 
 inquire, present, do, and execute all those things, which on the part of the 
 king, shall be then and there commanded them. As many as appear upon 
 this panel are sworn upon the grand jury, to the amount of twelve at least, 
 and not more than twenty-three, that twelve may be a majority. The 
 grand jury are previously instructed in the articles of their inquiry, by a 
 charge from the judge who presides on the bench. They then withdraw to sit 
 and receive indictments, which are preferred to them in the name of the 
 king, but at the suit of any private prosecutor ; and they are to hear 
 evidence only on behalf of the prosecutor : because the finding of an in- 
 dictment is only in the nature of an inquiry, or accusation, which is after- 
 wards to be tried and determined : and the grand jury are only to inquire, 
 upon their oaths, whether there be a suflBcient cause to call upon the party 
 to answer it. The grand jury ought not to be assisted by the depositions 
 taken before the magistrate, except when these depositions could be read 
 in evidence to the petit jury. 
 
208 PROCEEDINGS IN COURTS OF LAW. 
 
 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 
 vexation and danger which might be the effect of malice or tyranny, or both 
 combined. In order to oblige these important juries to a more conscien- 
 tious discharge of this two-fold duty, the following oath is appointed to be 
 taken, both by the foreman and every other member of the grand inquest : 
 
 " You shall diligently inquire, and true presentment make of all such 
 
 articles, matters, and things, as shall be given you in charge. And of all 
 other matters and things, as shall come to your own knowledge, touching 
 this present service. The king's counsel, 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 all things you shall present the 
 truth, the whole truth, and nothing but the truth, to the best of your 
 knowledge — so help you God." 
 
 After hearing the evidence, if the grand jury think the accusation 
 groundless, they indorse the bill with the words " not a true bill," or " not 
 found," and the party is discharged accordingly. But if the grand jury are 
 satisfied of the truth of the accusation, they then indorse the bill " 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 in- 
 habitants, that no man can be convicted of any capital offence, at the suit of 
 the king, 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 tlie 
 first place, assent to his accusation ; and afterwards, upon his trial, the whole 
 petit jury must agree in finding him guilty. The indictment being found, 
 is delivered publicly into court, and the clerk of the assize reads aloud 
 " A true bill against A. B. for felony," &c. ; or vice versa, if no bill 
 has been found. Formerly, it was necessary that an indictment should 
 have a precise and suflScient certainty, specifying the Christian name, sur- 
 name, and addition of the estate and degree, mystery and craft, town, or 
 place, and the county of the offender, in order to identify his person. But 
 by the act 26th May, 1826, for improving the administration of criminal 
 justice in England, it has been enacted " that no indictment or information 
 shall be abated by reason of any dilatory plea of misnomer, or want of ad- 
 dition, or of wrong addition of the party offering such plea, if the court 
 shall be satisfied by affidavit or otherwise, of the truth of such plea : but, 
 in such case, the court shall forthwith cause the indictment or informa- 
 tion to be amended according to the truth, and shall call upon such party 
 to plead thereto, and shall proceed, as if no such dilatory plea had been 
 pleaded,"* And to ascertain clearly the time and place, it was formerly 
 
 * 7 Geo. IV. c. 64, s. 19. 
 
PROCEEDINGS IN COURTS OF LAW. 209 
 
 necessary to state the day and township wherein the fact was committed ; 
 but the statute just quoted provides, that a mistake in any of these par- 
 ticulars shall not stay or reverse the judgment. The offence itself mu5t 
 be clearly stated, and in some crimes particular words of art must be 
 introduced, to express the exact idea which the law entertains of the of- 
 fence. Thus, in treason, the facts must be laid to be done " trea- 
 sonably, and against his allegiance," otherwise the indictment is void. 
 Also, in indictments for murder, it is necessary to say that the party 
 " murdered," not " killed," the deceased. It was also formerly essential to 
 a. good indictment that the value of the thing, or instrument of the offence, 
 be expressed. This was necessary in larcenies, to ascertain whether it were 
 grand or petit larceny, and whether the criminal was entitled to the 
 benefit of clergy. But benefit of clergy, and the distinction between grand 
 and petit larceny being now abolished, this reason no longer exists : never- 
 theless, on other grounds, it is still necessary that the thing stolen should 
 be stated to be of some value. But there is a method of proceeding, at 
 the suit of the king, without a previous indictment or presentment by the 
 grand jury, and that is by way of information. 
 
 Informatiojis are of two sorts ; first, those that are partly at the suit of 
 the king, and partly of the subject • and secondly, those that are in the 
 name of the king alone. The former are usually brought upon penal 
 statutes, which inflict a penalty on the offender : one part to the use of 
 the king, and the other to the informer. Informations that are 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- gen- 
 eral ; secondly, those in which he is the nominal prosecutor : yet it is on 
 the accusation of some private person or common informer. These infor- 
 mations are filed by the king's coroner and attorney in the court of king's 
 bench. The objects of the king's own prosecutions are properly such 
 enormous misdemeanors, as tend directly to disturb and endanger his go- 
 vernment, or to molest and affront him in the discharge of the regular 
 duties of the crown. In such cases the crown immediately prosecutes 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 object of these in- 
 formations, filed by the master of the crown ofllce, upon the complaint or 
 relation of a private person, are any gross misdemeanors, riots, batteries, 
 libels, and other immoralities of an atrocious kind, not tending peculiarly 
 to disturb the government, but which, on account of their enormity or 
 dangerous example, deserve the most public censure. When an informa- 
 tion is filed in either of these ways, it must be tried by a petit jury of the 
 county where the transaction took place 5 and if the defendant be found 
 guilty, the court of king's bench must be resorted to for his punishment. 
 
 If an information or an indictment for a misdemeanor, removed into the 
 
 2 D 
 
210 PROCEEDINGS IN COURTS OF LAW. 
 
 court of king's bench by certiorari, be not of such importance as to be 
 tried at the bar of the court, it is sent down by writ of nisi prius into the 
 county where the crime is charged to have been committed ; and it is there 
 tried either by a common or a special jury, like a record in a civil action : 
 and if the defendant is found guilty, he must afterwards receive judgment 
 from the court of king's bench. But when an indictment for treason or 
 felony is removed by certiorari, the party pleading the record is sent down 
 by nisi prius to be tried ; the judges of nisi prius may, upon that record, 
 proceed to trial, judgment, and execution, as if they were justices of gaol- 
 delivery.* 
 
 A writ of quo warranto is another species of information, usually prac- 
 tised to try the civil rights of such as have intruded into any office or 
 franchise ; but an information in the nature of a 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. 
 
 We will now inquire into the manner of issuing process, after finding 
 indictment to bring in the accused to answer it, if he has been previously 
 in custody j but if he should be at large, having Jied 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 penal statute, is a 
 writ of venire facias, which is a 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 injinite shall be issued from time 
 to time, till he make his appearance. But if he has no lands, the sheriff shall 
 be commanded, by writ of capias, to take his body and have him present at 
 the next assizes. If he cannot be taken on 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. After all these 
 several writs have been issued, and the offender absconds, he may be ex- 
 acted, proclaimed, or required to surrender at five county courts : and if 
 he 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 incapable of taking any of its benefits, either by bringing 
 actions or otherwise. His life, however, is still under the protection of 
 the law, although anciently an outlawed felon might be knocked on the head 
 by any one that should meet him ; yet now it is holden that no man is en- 
 titled to kill him wantonly, unless in the endeavour to apprehend him ; 
 otherwise it is murder. The execution of a malefactor, even although 
 condemned to death by the law, by an unauthorized person, is murder, al- 
 though justifiable when the law requires it. And further, if judgment of 
 
 * Piofessor Christian. 
 
PROCEEDINGS IN COURTS OF LAW. 211 
 
 death be given by a judge not authorized by lawful commission, and exe- 
 cution be done accordingly, the judge is guilty of murder. And upon 
 this account Sir Matthew Hale, though he accepted the place of a judge 
 under Cromwell's government, yet declined to sit on the crown side at the 
 assizes, and try prisoners : having the strongest objections to the usurper's 
 authority to grant a commission. 
 
 Outlawries on indictments for misdemeanors, are punished like out- 
 lawries on civil actions, with forfeiture of goods and chattels. But an 
 outlawry in treason or felony amounts to a conviction and attainder of the 
 offence charged in the indictment, as much as if the criminal had been 
 found guilty by a petit jury. An outlawry may be reversed by a writ of 
 error ; for if a single point be omitted or misconducted, the whole out- 
 lawry is illegal. On a reversal, the accused party is allowed to plead to 
 the indictment, and defend himself against it. 
 
 Writs of certiorari facias are writs usually had before trial, after the 
 indictment is found, to certify and remove it, with all the proceedings 
 thereon, from any inferior court of jurisdiction, into the court of king's 
 bench, which is the sovereign ordinary court of justice in criminal causes. 
 This may be done when it is surmised that a partial or insufficient trial 
 will probably be had in the court below. Indictments found by the grand 
 jury against a peer, or privileged person of the universities, must, in con- 
 sequence of a writ of certiorari, be certified and transmitted into the court 
 of parliament, or to the courts established by law in the universities, as 
 the case may be, to be there respectively tried and condemned. Upon the 
 appearance of the offender in court, he is immediately to be arraigned on 
 the indictment ; that is, he is to be called to the bar of the court, to an- 
 swer to the charge brought against him ; 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. The prisoner is called upon at the bar to hold up 
 his right hand, in order that by this act he may own himself to be of that 
 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 act of holding up the right hand was both a significant and important 
 ceremony for those who upon conviction might have been punished with 
 death, except for the benefit of clergy, now wholly abolished. Laymen 
 could only once avail themselves of the benefit of clergy ; and when con- 
 victed, instead of being executed, they were burned on the brawn of the 
 thumb ; the holding up his hand, therefore, was to show the court whe- 
 ther he had ever been convicted before of any clergyable offence. The 
 indictment is then to be distinctly read to the prisoner in the English 
 tongue, that he may fully understand the charge that is brought against 
 him. He is then asked whether he is guilty or not guilty. 
 
 When arraigned, a prisoner either stands mute or confesses the fact, or 
 
212 PROCEEDINGS IN COURTS OF LAW. 
 
 pleads to the indictment. He is understood, in law, to stand mute when 
 he either makes no answer at all, answers foreign to the purpose, or 
 having pleaded guilty, he refuses to put himself upon his country. If he 
 say nothing, a jury is to inquire whether he is obstinately 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 not yet been decided whether sen- 
 tence of death can be passed against such a person. But if he be found 
 obstinately mute, 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 if he had been convicted by a verdict or confession of the crime. 
 The English judgment of penance or peine forte et dure, was, that the 
 prisoner be remanded to the prison from whence he came, and put into a 
 low dark chamber, and there be laid on his back on the bare floor, naked, 
 unless where decency forbids j and that there be placed upon his body as 
 great a weight of iron as his body can bear : and more, that he have no 
 sustenance, save only, on the first day, three morsels of the worst bread, 
 and on the second day, three draughts of standing water, that should be 
 nearest to the prison door : and in this situation this should be his daily 
 diet alternately, till he died. Several persons have had resolution and 
 j)atience to undergo so terrible a death, in order to benefit their heirs, by 
 preventing a forfeiture of their estates, which would have been the conse- 
 quence of conviction by a verdict. Of this there is a memorable story of 
 an ancestor of an ancient family in the north of England, who, in a fit of 
 jealousy, killed his wife and his children, whicli were at home : and pro- 
 ceeding with an intent to destroy his only remaining child, an infant nursed 
 at a farm house at some distance, he was intercepted by a storm of thunder 
 and lightning. This interruption gave time for conscience to resume its 
 empire in his breast. He desisted from his purpose, and having surren- 
 dered himself to justice, in order to secure his estates to this child, he had 
 the resolution to die under the dreadful judgment of peine forte et dure. 
 
 This dreadful punishment is now, however, wholly abolished. It was 
 lately enacted that if any person being arraigned for high treason, felony, 
 piracy, or misdemeanor, shall stand mute of malice, or will not answer 
 directly to the indictment or information, the court may order the proper 
 officer to enter a plea of " not guilty'' on behalf of such person ; and such 
 plea shall have the same force as if actually pleaded by the party himself ;* 
 which is a much more satisfactory method of dealing with such cases to 
 tlie public mind, and obviously operates much more powerfully ; as an ex- 
 ample, that a prisoner should suflTer punishment, after a public manifesta- 
 tion of his guilt by evidence, than that he should be punished so cruelly 
 only upon presumption of guilt, arising from his obstinate silence. 
 
 * 7 and 8 Geo. lV.,c. 28. 
 
PROCEEDINGS IN COURTS OF LAW. 21.3 
 
 If the prisoner confess the crime charged in the indictment, the court 
 has nothing farther to do than to>pronounce judgment. From a conscious- 
 ness of guilt, and perhaps contrition of heart, a prisoner will plead guilty, 
 to avoid adding to his crime by telling a falsehood. In a moral point of 
 view, such a frame of mind is praiseworthy : but neither the law of na- 
 ture nor of the land requires a man voluntarily to subject himself to hu- 
 man punishment, by confessing his sins to his fellow creatures, every man 
 being deemed innocent in the eye of the law till he has been proved to be 
 guilty, to the satisfaction of twelve of his equals ; and it is the duty of the 
 prosecutor to substantiate his guilt by credible evidence. In a legal sense, 
 a prisoner may plead tiot guilty with the greatest propriety before a hu- 
 man tribunal : and which may be done consistently with sincere repentance 
 and humble confession to Almighty God. After conviction, however, if 
 lie be really guilty, and truly penitent, he will also make an unreserved 
 acknowledgment to man. 
 
 It may not be uninteresting to notice a popular error respecting turning 
 Icing's evidence, by one of the accomplices in any crime. It is too gener- 
 ally believed, that an accomplice, who voluntarily offers to give evidence 
 against his companions, is entitled to a pardon. This, however, 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 pre- 
 varication and fraud, by intimating, at least, that he himself shall not be 
 prosecuted. In the case of Mrs Rudd, it was laid down by lord Mansfield, 
 that no authority is given to a justice of peace to pardon an offender, and 
 to tell him that he shall be a witness, at all events, against others. But 
 when the evidence appears insufficient to convict* two or more without 
 the testimony of one of them, the magistrate may encourage a hope, that 
 he who will behave fairly, and disclose the whole truth, and bring the others 
 to justice, shall himself escape punishment. But this discretionary power 
 is founded in practice only, and cannot control the authority of the court 
 of gaol-delivery, and exempt, at all events, the accomplice from being pro- 
 secuted. A motion is always made to the judge for leave to admit an ac- 
 complice to be a witness, and unless he should see some particular reason 
 for a contrary conduct, he will prefer the one to whom this particular en- 
 couragement has been given by the justice of peace. This admission to 
 be a witness amounts only to a promise of a recommendation to mercy, 
 upon condition that the accomplice makes a full and fair disclosure of all 
 tlie circumstances of tlie crime for wliicli the other prisoners are tried, and 
 in which he has been concerned in concert with them. On his failure he 
 forfeits all claim to protection. On a trial, some years ago, at York, be- 
 fore Mr Justice Buller, the accomplice, who was admitted a witness, de- 
 nied his evidence, and all that he had before confessed, on which the 
 prisoner was acquitted : but the judge ordered an indictment to be pre- 
 
214 PROCEEDINGS IN COURTS OF LAW 
 
 ferred against this accomplice for the same crime, and on his confession 
 and other circumstances, he was convicted and executed.* But those ac- 
 complices have a rigid to pardon, who turn king's evidence on the faith 
 of the king's special proclamation. 
 
 When the prisoner neither stands mute nor confesses the fact, lie is 
 then said to plead, or make his defence on the arraignment. This is done 
 either by 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 when an indictment is taken before a court 
 that cannot take cognizance of the offence. As if a man be indicted for 
 a rape at the sheriff's tourn, or for treason at the quarter sessions : in this 
 and similar 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 prisoner joins issue 
 on some point of law in the indictment, by which he asserts that the fact, 
 as stated, is not felony, treason, or whatever the crime is said to be. But 
 this plea is seldom used, because the same advantage may be taken in 
 arrest of judgment, on conviction. A plea in abatement is principally for 
 a misnomer, 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 tliat 
 he is not an esquire, but a gentleman. But this is a mere delay, which 
 avails the prisoner but little, as a new bill of indictment may be framed, 
 corresponding to the name and degree which he has avowed belong to 
 him. But this plea has been entirely done away with by statute.f 
 
 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 prisoner 
 ought not to put himself upon his trial for the crime with which he is 
 charged. Special pleas in bar are of four kinds : 
 
 1st, The plea of di former acquittal. It being an universal maxim in 
 English law, that no man shall be brought into jeopardy of his life more 
 than once for the same crime. 2nd, A former conviction for the same 
 identical crime is a second plea in bar, although no judgment was ever 
 given, or perhaps ever will be, which is a good plea in bar to an indict- 
 ment : but it must be observed, that both these pleas in bar must be on a 
 prosecution for the same identical act and crime, 3rd, A former attainder 
 is a good plea in bar, whether it be for the same or another felony. For 
 whenever 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 prisoner is dead in law by the first attainder, Iiis blood is 
 
 * 7 Geo. IV., r. 64. f Professor Christian's Notes. 
 
PROCEEDINGS IN COURTS OF LAW. 215 
 
 already attainted, and he lias forfeited all that he had. But to this general 
 rule there are exceptions. 4th, The last plea in bar to be mentioned is a 
 pardon^ which at once destroys the end and design of an indictment, by re- 
 mitting 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 attainder : for the blood once 
 corrupted by an attainder, cannot be again restored but by an act of par- 
 liament. 
 
 But the only plea on which the prisoner can receive his final judgment 
 of death is the general issue, or plea of not gidlly. 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 according- 
 ly. 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 the 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 send thee a good deliver- 
 ance :" a petition expressive of the law's compassion, which would rather 
 that the prisoner's innocence might appear, than that his conviction and 
 punishment should be the result of the trial. But if the prisoner refuse 
 to put himself on his trial in the usual form, his obstinacy is construed into 
 a confession of his guilt, and he is convicted of the felony, &c. accord- 
 ingly. 
 
 The prisoner having been arraigned, and no other plea in bar of farther 
 proceedings established, he must take his trial on the general issue or plea 
 of " not guilty," or, in other words, the indictment must be submitted to 
 the impartial examination and decision of a jury. We are now, then, ad- 
 vanced to a very important and a most interesting stage of the business. 
 To behold a fellow subject, and what may perhaps come closer home, a 
 fellow sinner, accused by twelve of the first men in the county of a crime, 
 which, if proved in his presence, will deprive him either of his property, his 
 liberty, or his life, or perhaps of them all ; to see the king, emphatically 
 called the father of his people, represented by the judge, arrayed with the 
 robes, and surrounded with the insignia of his oflfice, sitting to distribute 
 justice with an impartial hand ; to mark the alternate forebodings of a 
 crowded and anxious audience ; to notice the patient attention of the jury 
 to all the evidence in favour of as well as against the prisoner ; how eagerly 
 they drink in every syllable of his defence, and with what caution and 
 tenderness they return their verdict ; to observe the trembling anxiety 
 with which the unhappy prisoner waits for the dreadful words that are to 
 pronounce his guilt and his doom, or the elating sentence which is to send 
 
216 PROCEEDINGS IN COURTS OF LAW. 
 
 him guiltless from the bar — is a scene at once so solemn and affecting, 
 that no humane person can survey it without the most lively emotions. 
 
 In the superstitious age of our Saxon ancestors, several very exception- 
 able modes of trial Avere ignorantly had recourse to, in order to ascertain 
 the guilt or innocence of the accused, it being a general opinion at that 
 time that the Almighty would always miraculously interpose to save the 
 innocent. This absurd and presumptuous notion, however, of the im- 
 mediate interference of divine Providence, in deciding the guilt or in- 
 nocence of any by ordeals^ or their trials by Jlre and water, and after- 
 wards by the trial of battel, was at length expelled from the minds of the 
 English, who, as they became more enlightened, adopted the superior 
 mode of trial by jury. The two former were of Saxon, the latter of Nor- 
 man institution. The trial by battel, although in desuetude, was not 
 abolished till the 22nd June, 1819, when an act was passed making it 
 " unlawful for any person, at any time after the passing of this act, to 
 commence, take, or sue appeal of treason, murder, felony, or other of- 
 fence, against any other person whatsoever, but that all sucli appeals shall 
 from henceforth be utterly abolished."* The last instance where this ap-, 
 peal to trial by battel was tendered, was a short time before, and which in- 
 deed occasioned the repeal act just quoted, in an appeal of murder. Ash- 
 ford V. Thornton. And the last time that trial by battel was actually 
 awarded, was in the case of Lord Rae and Mr Ramsay. The king, by 
 his commission, appointed a constable of England to preside at the trial, 
 who proclaimed a day for the duel, commanding the combatants to appear 
 with a spear, a long sword, a short sword, and a dagger ; but the com- 
 bat was prorogued to a farther day, before which the king revoked the 
 commission.f 
 
 The form and manner of waging battel upon appeals, were much the 
 same as upon a writ of right ; only the oaths of the combatants are more 
 striking. The appellee, when appealed of felony, pleads not guilty, and 
 throws down his glove, declaring he would defend the same by his body : 
 the appellant takes up the glove, and replies, that he is ready to make 
 good the appeal, body for body ; upon which the appellee took the book in 
 his right hand, and in his left the right hand of his antagonist, swearing 
 as follows : " Hear this, man, whom I hold by the hand, who callest 
 thyself John, by the name of baptism, that I, who call myself Thomas, by 
 the name of baptism, did not feloniously murder thy father, William by 
 name, nor am any way guilty of the said felony ; so help me God, and 
 the saints : and this I will defend against thee by my body, as this court 
 shall award." To which the appellant replied, holding the bible and 
 his antagonist's hand in the same manner as the other : " Hear this, 
 
 * 69th Geo. III., c, 46. f Professor Christian's Notes. 
 
PROCEEDINGS IN COURTS OF LAW. 217 
 
 O man, whom I hold by the hand, who callest thyself Thomas, by the 
 name of baptism, that thou art perjured ; and therefore perjured, be- 
 cause that thou feloniously didst murder my father, William by name ; so 
 help me God, and the saints : and this I will prove against thee by my 
 body, as this court shall award." The battel was then fought with the 
 same weapons, viz., batons ; the same solemnity, and the same oaths 
 against amulets and sorcery, that were used in the civil combat ; and if 
 the appellee be so far vanquished, that he cannot or will not fight any 
 longer, he was then adjudged to be hanged immediately; and then, as well 
 as if he had been killed in battel, the divine determination was deemed to have 
 been in favour of the truth, and his blood was attainted accordingly. But 
 if he killed the appellant, or could maintain the fight from sun rising till 
 the stars appeared in the evening, he was then acquitted. Likewise, if 
 the appellant became recreant, and pronounced the horrible word of craveti, 
 he lost his liberam legem^ and became infamous, in consequence the appellee 
 recovered his damages, and was for ever acquitted, not only of the appeal, 
 but of all indictments likewise for the same offence. 
 
 The origin of the trial by jury, which is now such an essential part of 
 our constitution, is unquestionably very ancient, and derived, according to 
 some authors, from those barbarous tribes which every where invaded the 
 Roman provinces, and carried along with them their natural love of free- 
 dom. Mr Hume, however, is of opinion that the first lineaments of the 
 English jury originated in the inventive and sagacious mind of the great 
 Alfred. The division of all England by this extraordinary prince into 
 counties, hundreds, 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 his neighbour's good behaviour : and the method which 
 it adopted for the decision of all causes, *' deserves," says Hume, " to be 
 noted as being the origin of juries." Certain it is, that in flowing down 
 to us, it met with many checks and interruptions. But it is generally 
 allowed, that it broke through all impediments, 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 
 swelling from that period to its present height, and by overflowing our 
 happy country, has, under the good providence of God, rendered it the 
 fertile, the happy, and the envied land of freedom. 
 
 In the reign of George IV., various new regulations were made re- 
 specting the qualification of jurors : but as that act will be found in the 
 legal history of that prince hereafter, it need not be here more parti- 
 cularly noticed. Since the abolition of the superstitious modes of deci- 
 sion, the only forms of trials in criminal cases in England has been by tlie 
 peers in the high court of parliament, and the trials of commoners by 
 
 2 E 
 
218 PROCEEDINGS IN COURTS OF LAW. 
 
 jury. This latter form is indeed extended even to the nobility in all 
 criminal cases ; treason, felony, and misprision of treason only excepted. 
 There is a very important advantage in the English trial by jury in crimi- 
 nal cases J 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 presentment, and a subsequent trial by jury be- 
 tween the liberty of the subject and the prerogative of the crown. In short, 
 no man can be 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 petty jury pronounce him guilty. Thus the subject is, as it were, 
 hermetically sealed and guarded against arbitrary power, on the -one liand, 
 and the insidious machinations of private revenge on the other. 
 
 But it is now 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 sheriflf of the county is to return a panel of jurors, 
 who must be indiscriminately taken, and freeholders of the county in 
 which the crime was committed. When the trial is called on, the jurors 
 are to be sworn as they appear, to the number of twelve, unless they are 
 challenged by the party. Persons indicted for smaller misdemeanors, after 
 having pleaded not guilty, may traverse the indictment. In which case 
 they usually give security to appear at the next session or assize, and then 
 and there to try the traverse, giving notice to the prosecutor of the same. 
 By the traverse act,* where a defendant has been in custody, or held to 
 bail for a misdemeanor twenty days before the sessions of the peace, of oyer 
 and terminer, or of gaol-delivery, at which the indictment was found, the 
 defendant shall plead, and the trial shall take place at such sessions, unless 
 a certiorari be delivered before the jury are sworn. And if a defendant, 
 indicted for a misdemeanor at any of these sessions, not having been in 
 custody, or held to bail twenty days before the session at which the in- 
 dictment was found, but who shall have been in custody, or held to bail to 
 appear at some subsequent session, or shall have received notice of such 
 indictment having been found twenty days before such subsequent session, 
 he shall plead and be tried, unless a certiorari is delivered before the jury 
 are sworn. 
 
 All persons, however, indicted for high treason and misprision of trea- 
 son, shall not only have a copy of the indictment, but a list of all tlie wit- 
 nesses to be produced against them, with their professions and places of 
 abode, delivered to them, ten clear days, exclusive of the days of delivery 
 
 * 60 Geo. III. and 1 Geo. IV. 
 
PROCEEDINGS IN COURTS OF LAW. 219 
 
 and the day of trial, and of the intervening Sundays previous to the trial, 
 and in the presence of two witnesses, that they may be properly prepared 
 to make their challenges and defence, and to bring forward anything which 
 may destroy the credibility of any of the witnesses, — a striking instance of 
 the fatherly care of the sovereign, by consenting to laws which preserve the 
 life, liberty, and property of the subject from any unjust exercise of his 
 power. 
 
 Challenges may be made either by the king or the prisoner, and against 
 either an individual juror or the whole array, for the very same reasons as 
 in civil causes : and it will be seen that it is not without reason that the 
 laws of England are so celebrated for their tenderness and compassion to 
 the prisoner ; for he is allowed, in all capital cases, peremptorily to challenge 
 a certain number of jurors, without assigning any cause whatever, that he 
 may not be tried by any one man against whom he may have conceived a 
 prejudice ; besides, were he obliged to state the cause of his challenge, 
 and the court not allow the juror to be set aside, he might feel resentment 
 against the prisoner. This privilege of peremptory challenges, granted to 
 the prisoner, was formerly denied to the king, who must assign a reason 
 for his challenge.* This statute was repealed in 1825, by an act here- 
 after quoted ,f but similar provisions were re-enacted. 
 
 It is evident, however, that this great indulgence affords the prisoner 
 an opportunity of challenging every juror till it were impossible to try 
 him. To remedy this inconvenience, the law formerly fixed the number 
 of thirty -five : that is one short of three juries ; but now the number is 
 reduced to twenty,;}: beyond which no prisoner is allowed to challenge; be- 
 cause if he did it, the conclusion is that he has no intention to be tried at 
 all: in which case it was considered that the prisoner stood mute, and 
 sentence passed as if convicted on his own confession. If, from any cause, 
 a sufficient 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 ver- 
 dict to give, according to their evidence." Before a juryman is sworn, 
 he is desired '' to look at the prisoner ;" not for the gratification of 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 possible, consis- 
 tently with his solemn oath, if any doubt of his guilt should arise in his 
 mind. 
 
 When the jury is sworn, if it be a cause of any consequence, the indict- 
 ment is usually opened, and the evidence marshalled, examined, and en- 
 
 * 33 Edw. I. t 6 Geo. IV., c. 50. X Ibid 
 
220 PROCEEDINGS IN COURTS OF LAW. 
 
 forced, by the counsel for tlie crown or prosecution. But it is a settled rule 
 at common law, that no counsel sliall be allowed to aprisoner upon his trial 
 on the general issue, in any capital crime, unless some point of law shall 
 arise, proper to be debated. A rule, however it may be palliated under 
 cover of that noble declaration of the law, when rightly understood, that 
 the judge shall be counsel for the prisoner, that is, shall see that the pro- 
 ceedings against him are legal, and strictly legal, — which seems to be 
 inconsistent with that humanity and compassion with which the law of Eng- 
 land treats unfortunate prisoners. For on what face of reason can that 
 assistance be denied to save a man's life, which is freely allowed for every 
 petty trespass ? But the judges themselves are sensible of this defect, and 
 never scruple to allow a prisoner counsel to instruct him what questions 
 to ask, or even to ask questions himself respecting matters of fact. The 
 maxim that the judge is counsel for the prisoner signifies nothing more 
 than that the judge shall take care that the prisoner shall not suffer from 
 the want of counsel. The judge is counsel only for public justice, and to 
 promote that object alone, all his inquiries and attention ought to be di- 
 rected. On a trial for the murder of a male child, the counsel for the 
 prosecution concluded his case without asking the sex of the child, and the 
 judge would not permit him afterwards to call a witness to prove it, but 
 in consequence of the omission he directed the jury to acquit the pri- 
 soner. But to the honour of that judge it ought to be stated, he after- 
 wards declared in private his regret for having done so.* 
 
 It is very extraordinary, says professor Christian, that the law of Eng- 
 land should have denied the assistance of counsel when it is most wanted, 
 that is, to defend the life, the honour, and all the property of an indivi- 
 dual. It is the extension of that maxim of natural equity, that every one 
 shall be heard in his own cause, that warrants the admission of hired ad- 
 vocates in courts of justice ; for there is much greater inequalities in the 
 powers of explanation and persuasion in the natural state of the human 
 mind than when it is improved by education and experience. Among 
 professional men of established character, the difference in their skill and 
 management is generally so inconsiderable, that the decision of the cause 
 depends only on the superiority of the justice in the respective cases of 
 the litigating parties. Hence the practice of an advocate is absolutely 
 necessary to the administration of substantial justice. An honourable 
 barrister will never wilfully mistate law or facts within Iiis own knowledge, 
 but he is justified in urging any argument, whatever may be his own 
 opinion of its solidity or justice, which he thinks will promote his client's 
 interest : for reasoning in courts of justice, and in the ordinary affairs of 
 life, seldom admits of geometrical demonstration ; but it not unfrequently 
 
 * Pioftsior Chiislian. 
 
PROCEEDINGS IN COURTS OF LAW. 221 
 
 happens, tliat the same argument which appears sophistry to one, is sound 
 logic in the mind of another ; and daily experience proves, that the opinions 
 of a judge and an advocate are often diametrically opposite. Many cir- 
 cumstances may occur, which will justify or compel an individual member 
 of the profession to refuse to undertake the defence of a particular client ; 
 but a cause can hardly be conceived to be so bad which ought to be re- 
 jected by the whole bar : for such refusal would excite so strong a prejudice 
 against the prisoner as to render him in a great degree condemned before 
 his trial. Let the circumstances against a prisoner be ever so atrocious, 
 it is still his advocate's duty to see that his client is convicted according to 
 those rules and forms which the wisdom of the legislature has established 
 as the best protection of the liberty and the security of the subject. But 
 the conduct of counsel in the prosecution of criminals, ought to be very 
 different from that which is required of them in civil actions, or when they 
 are engaged on the side of a prisoner: in the latter case, they are their 
 client's advocates only, and speak but by his instruction and permission j 
 in the former, they are the advocates of public justice, or, to speak more 
 professionally, they are the king's advocates, who in all criminal prosecu- 
 tions appears both as the protector and the avenger of his people ; and 
 both the king and the country must be better satisfied with the acquittal 
 of the innocent, than with the conviction of the guilty. Hence, in all 
 criminal prosecutions, especially where the prisoner can have no counsel 
 to plead for him, a barrister is as much bound to disclose all those cir- 
 cumstances to the jury which are favourable to the prisoner, and to reason 
 upon them as fully, as those which are likely to support the prosecution.* 
 In cases of high treason, petit treason, and misprision of treason, Uvo 
 lawful witnesses are required to convict a prisoner, unless he shall willing- 
 ly, and without violence, confess the same. In prosecutions for high trea- 
 son, 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 instances, 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 suf- 
 ficient to prove the crime charged, according to the requisition of the 
 statute ; but in almost every other accusation, one positive witness is suf- 
 ficient. It was an ancient and commonly received practice, that as coun- 
 sel was not allowed to any prisoner accused of a capital crime, so neither 
 should he be suffered to exculpate himself by the testimony of any wit- 
 nesses. The courts, however, grew so heartily ashamed of so unreason- 
 able and oppressive a doctrine, that a practice was gradually introduced of 
 examining witnesses for the prisoners, but not upon oath; still the jury 
 
 * Professor Christian's Notes. 
 
223 PROCEEDINGS IN COURTS OF LAW. 
 
 gave less credit to the prisoner's evidence than to that produced by the 
 crown. Against this unreasonable and tyrannical practice, Sir Edward 
 Coke very justly protests, declaring that he never read in any act of par- 
 liament, book-case, or record, that in criminal cases the party accused 
 should not have witnesses sworn for him. The house of commons were so 
 sensible of tliis absurdity, that in the bill for abolishing hostilities between 
 England and Scotland,* where felonies committed by Englishmen in Scot- 
 land were ordered to be tried in one of the three northern counties, they 
 insisted on a clause, and carried it too, against the efforts, both of the 
 crown and the house of lords, in opposition to the practice of the courts 
 in England, and the express law of Scotland, " that in all such trials for 
 the better discovery of the truth, and the better information of the con- 
 sciences of the jury and justices, there shall be allowed to the party ar- 
 raigned the benefit of such credible witnesses, to be examined upon oath, 
 as can be produced, for his clearing and justification." At length the same 
 measure of justice was established throughout all the realm, in cases of 
 treason, within the act :f and it was afterwards declared, that in all cases 
 of treason and felony, all witnesses for the prisoner should be examined 
 upon oath, in like manner as the witnesses againd him.:j: 
 
 In consequence of the life of the late king George III. having been 
 attempted in the theatre, by a maniac shooting at him, it was enacted, 
 " that in all cases of high treason, when the overt act shall be assassina- 
 tion, or killing of the king, or any direct attempt against his life ; the per- 
 sons charged with such an 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 respect, and upon the like evidence, as if such 
 person or persons stood charged with murder." § 
 
 Likewise, in indictments for perjury, //wo witnesses are required to con- 
 vict the accused. Although the mere similitude of the hand-writing in two 
 papers, shown to a jury, without other concurrent testimony, is not evi- 
 dence that both were written by the same person ; yet the testimony of 
 witnesses, well acquainted with the party's hand- writing, is evidence in all 
 cases, to be left to a jury, if the papers were left in the prisoner's custody. 
 All presumptive evidence of felony is to be admitted with caution ; for 
 the law holds that it is better that ten guilty should escape, than tijat one 
 innocent person should suffer punishment. 
 
 The evidence for this being gone through, the prisoner is then called 
 upon for his defence, and permitted to bring forward such witnesses as he 
 pleases, in his own favour. The judge now sums up the whole evidence, 
 and makes suitable remarks on it to the jury, by pointing out the law of 
 
 * 4 James I., c. 1. f 7 W. & M., c. 3. j 1 Anne, c. 9. 
 
 § 39 and 40 George III., c. 93. 
 
PROCEEDINGS IN COURTS OF LAW. 223 
 
 the case, showing wliere the evidence is to the purpose, and where it is de- 
 fective, and uniformly instructing them, that if any doubl of the prisoner's 
 guilt rests upon their minds, they are bound in mercy to acquit him: it 
 being tlie very essence of English liberty to protect the subject against foul 
 charges in the criminal courts of justice. The jury then retire to con- 
 sider their verdict, whicli they must give in open court, not iirivalclij to 
 the judge, as sometimes happens in civil causes. 
 
 When the evidence on both sides is closed, the jury cannot be discharg- 
 ed unless in cases of evident necessity, till they have given in tlieir verdict : 
 and no verdict can be given unless the whole of the jury are agreed. The 
 unanimity of twelve men is the peculiar characteristic of an English jury : 
 but a regulation so repugnant to all experience of human conduct, pas- 
 sions, and understandings, could hardly, in any age, liave been introduced 
 into practice by a deliberate act of the legislature. It has been such, that 
 as no effective verdict could originally be given by fewer than twelve 
 jurors, altliough more were present, so afterwards wrhen only twelve were 
 sworn, tlieir unanimity became indispensable. 
 
 If the jury, therefore, find the prisoner not guilty, he is then for ever 
 quit and discharged of the accusation, except he be appealed of felony 
 within the time limited by law. And upon his acquittal or discharge for 
 want of prosecution, he shall be immediately set at large without payment 
 of any fee to the gaoler. But if the jury find him guilty, he is then said 
 to be convicted of the crime whereof he stands indicted. Which conviction 
 may accrue two ways : either by confessing the offence and pleading guilty, 
 or by his being found so by the jury. 
 
 The act of George IV., hereafter given, repealed all the old statutes 
 wliich allowed compensation to the prosecutor for his reasonable expenses, 
 and if poor, for his loss of time, out of the county stock, if he petitioned 
 the judge for that purpose; and introduces various new provisions re- 
 specting the costs of criminal prosecutions. By its 22nd section the court 
 is em.powered in all prosecutions for felony, to order payment to the prose- 
 cutor of the costs of preferring the indictment, and payment to the prose- 
 cutor and witnesses of such sum as may seem sufficient to reimburse them 
 for the expenses incurred in attending before the examining magistrate and 
 the grand jury, and in otherwise carrying on the prosecution, and also to 
 compensate them for their trouble and loss of time therein. The court 
 are also empowered to grant costs and remuneration for loss of time, 
 though no bill of indictment is preferred, if the parties have hojiajide, ap- 
 peared in court in obedience to a subpoena or recognizance. The court 
 are also empowered to grant the expenses of prosecutors and witnesses in 
 prosecutions for certain misdemeanors. On conviction of larceny in par- 
 ticular, the prosecutor is entitled to restitution of goods. And it is now 
 usual for the court, on the conviction of a felon, to order immediate re- 
 
224 PROCEEDINGS IN COURTS OF LAW. 
 
 stitution of such goods as are brouglit into court to be made to the several 
 prosecutors; or else the party may peaceably retake his goods wherever 
 he happens to find them, unless a new property be fairly acquired in them. 
 The owner of stolen goods, who has prosecuted the thief to conviction, can- 
 not recover the value of his goods from a person who has purchased and 
 sold them again : even with notice of the theft, before conviction. And 
 if the owner loses them by a fraud, and not by a felony, and afterwards 
 convicts the offender, he is not entitled to restitution, or to retain them 
 against a person : as a pawn-broker, who has fairly acquired a new right 
 of property in them. 
 
 It sometimes happens, when the jury find the prisoner guilti/, that they 
 recommend him to mercy. But that the king may exercise this bright 
 jewel of the crown with judgment and discretion, juries so recommending, 
 Iiave been required to state their reasons : which, however, by no means 
 insures to the prisoner even the mitigation of punishment, much less a 
 pardon. For although the jury who tried colonel Despard accompanied 
 their verdict with the following words, *' My lord, we do most earnestly 
 recommend the prisoner to mercy, on account of the high testimonials to 
 his former good character and eminent services ;" nevertheless, he was 
 executed, with all the accomplices of his guilt. Let no man, therefore, 
 presume to transgress the law, and "lay the flattering unction to his 
 soul " that his former good conduct will either extenuate his guilt or allevi- 
 ate his punishment. 
 
 After trial and conviction, the judgment of the court regularly follows, 
 unless suspended or arrested by some intervening circumstance, of which the 
 principal formerly was the benefit of clergy. But that absurd ex- 
 ception being now entirely abolislied,* it is only here inserted as a matter 
 of curiosity and history. 
 
 Benefit of clergy originated from a constitution of the pope, "• that 
 no man should accuse the priests of holy church before a secular judge." 
 This privilege was at length claimed by the popish clergy, as a divine right 
 to which they were entitled, founding such an unreasonable exemption on 
 a ridiculous perversion of that text of scripture, " touch not mine anoint- 
 ed, and do my prophets no harm'^\ The blind submission which Christian 
 princes paid in the dark ages to the authority of the church, only increas- 
 ed the monstrous pretensions and the grasping ambition 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 
 tlieir order. Whatever they touched, was, by a sort of magic, turned into 
 gold : and as their power increased, they multiplied their privileges in pro- 
 portion. By their canons, therefore, and constitutions, they endeavoured 
 
 * 7 and 8 Geo. I V., c. 2S. f 1 Cliroii. xvi. 22. 
 
PROCKEDINTGS IN COURTS OF LAW. 225 
 
 at, and, when tliey met with easy princes, tliey obtained vast extension of 
 these ; as well in regard of the crimes themselves, of wliicli the list became 
 quite universal, as of the persons exempted, among wliom were at length 
 comprehended not only every little subordinate officer belonging to the 
 churcli or clergy, but even many wlio were altogether laymen. 
 
 In England, although the pope's usurpations were many and intolerable, 
 till Henry VIII. entirely exterminated his supremacy, yet a total exemption 
 of the clergy could never be thoroughly effected, and the privilege was ex- 
 ercised with great uncertainty until the reign of Henry VI., a weak tliough 
 pious prince; wlien it was finally settled, that tlie prisoner should be first 
 arraigned before the secular judge, and miglit eitlier then claim his bene- 
 fit of clergy by way of declinatory plea, or afler conviction in arrest of 
 judgment. 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 and superstition, a much wider and more comprehensive 
 criterion was established : tlie ability to read being a mark of great eru- 
 dition; the man thus qualified was accounted a clerk or clericus, althougli 
 neither in holy orders nor having the clerical tonsure, and was allowed the 
 benefit of clergy. The bishop might, if he chose, claim any man wlio was 
 condemned to death by the civil judge, as a clerk, if he could read ; but 
 if neither the bishop would demand liim, nor the prisoner could read, then 
 he was executed. At length, however, by the extension of learning through 
 the means of printing, it was discovered that fully as many laymen as 
 clergymen could read, and in consequence enjoyed the benefit of clergy, 
 whicli could not fail to excite the jealousy of the tonsured gentlemen, lest 
 the sacredness of their order should be profaned by too great an assimi- 
 lation of their privileges with the laity. A further distinction, therefore, 
 was made in favour of the clergy, which was, that a layman should not 
 be entitled to the benefit of clergy more than once ;* whereas a clerk in 
 holy orders might enjoy the priviligimn clericale a second time, and oftener. 
 And in order to distinguish the person of a layman from that of a clergy- 
 man, tlie former when admitted to this privilege was burnt witli a hot iron 
 in the brawn of the left thumb, by the gaoler in open court. It is im- 
 possible not to remark, that this privilege whicii the popish clergy claimed, 
 is an irrefragable proof that the charges of all historians of tlie wickedness 
 of their lives before the Reformation, and their shameless dissolution of 
 morals, were perfectly true, and not the least over-drawn. 
 
 Formerly, the laity after burning, and the clergy witliout it, were dis- 
 charged from tlie civil courts, and given over to the bishop's jurisdiction, 
 where he was purged by a mock trial of twelve clerks before the bisliop 
 himself, or his deputy : when the party himself was required to make 
 
 * 4 Henry VII., c. 13. 
 2 F 
 
926 PROCEEDINGS IN COURTS OF LAW. 
 
 oath of his own innocence, next the twelve compurgators swore that they 
 believed he spoke the truth, then witnesses were examined upon oath, but 
 only on behalf of the prisoner : and lastly, the jury were to bring in their 
 verdict, upon oath, which usually acquitted the prisoner ! When the 
 blessed Reformation was fully established, this complication of perjury and 
 subornation of perjury, in the solemn farce of a mock trial — the judge, 
 compurgators, witnesses, and jury, being all partakers in tlie prisoner's guilt, 
 was entirely abolished by act of parliament.* The wisdom of the English 
 legislature afterwards discovered, that as learning was no extenuation, nei- 
 ther was ignorance any aggravation of guilt. It was therefore enacted,f 
 that the benefit of clergy should be extended to all who were entitled to 
 ask it, without requiring them to read by way of conditional merit ; so 
 that when such persons were asked by the court what they had to say, why 
 judgment of death should not be pronounced against them, they were told 
 to kneel down and pray the benefit of the statute. And for many years 
 before the repeal of these statutes, burning in the hand or cheek was ex- 
 changed for fine, imprisonment, whipping, &c., at the discretion of the 
 court. But now tlie privilegium clericale having been entirely abolished 
 in the reign of George IV., it is unnecessary to add anything farther on 
 the subject. 
 
 Judgment. — After conviction, by the verdict of the jury in the 
 criminal's presence, upon a capital charge, the judge either immediately 
 or soon after asks the prisoner whether he has anything to say in arrest 
 of judgment ; that is, whether lie can show any cause why the sentence of 
 the law should not be passed upon him. The prisoner is not allowed to 
 avail himself of this clemency of the law by making exceptions to the in- 
 dictment ; but if his objections prove valid, the whole proceedings shall be 
 set aside : but he may be again indicted, or he may plead a pardon in 
 arrest of judgment, which saves the attainder and corruption of blood ; 
 but this is not the case unless the pardon be pleaded before sentence is pro- 
 nounced : and the blood being once corrupted, it can only be restored by 
 an act of parliament. 
 
 Failing all the prisoner's ingenuity to arrest judgment, the judge is 
 then to pronounce the sentence of the law which has been annexed to the 
 crime. Of these, some are capital, which extend to the offender's life, 
 and consist generally, in being hanged by the neck till dead : though in 
 very atrocious crimes, other circumstances of pain, terror, or disgrace, 
 were superadded. The sentence now^ in all cases of treason, is decreed % 
 to be, that the persons convicted shall be drawn on a hurdle to the place of 
 execution, and there hanged till he is dead ; that afterwards he shall be be- 
 headed, and the body divided into four quarters, which are to be at the king's 
 
 * 18 Eliz., c. 7. t 5 Anne, c. 6. | 64 Geo. III., c. 146. 
 
PROCEEDINGS IN COURTS OF LAW. 227 
 
 disposal. This statute also provides that the king may, by warrant under 
 his sign manual, direct, that the traitor shall not be drawn or hanged, but 
 beheaded alive, and may order in what manner the body, head, and quar- 
 ters, are to be disposed of. In Thistlewood's case, and those who were 
 executed with him in 1820 for high treason, in being concerned in the 
 Cato street conspiracy, it is remarkable that the drawing and quartering 
 only were remitted. Formerly, traitors were embowelled alive, and quar- 
 tered : and in cases of treason, committed by a female, her sentence was 
 to be burned alive ; but now they are to be drawn to the place of execu- 
 tion and hanged by the neck till dead. 
 
 It is one of the excellencies of the British 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 passions, and might in some cases withhold deserv- 
 ed punishments through a mistaken tenderness, and in others inflict inor- 
 dinate penalties from anger or revenge. Nor are discretionary fines, which 
 in some cases courts are allowed to adjudge, any exception to the general 
 rule ; for the nature of the punishment is fixed and determinate, although 
 the duration and quantity of it must frequently vary, according to circum- 
 stances. The discretion of the judges is regulated by law ; the bill of 
 rights declaring that excessive fines ought not to be imposed, nor cruel, 
 nor unusual punishments inflicted ; and the same statute further declares, 
 that all grants and promises of fines and forfeitures of particular persons 
 before conviction are illegal and avoid. 
 
 The sentence of death is the most terrible and highest judgment of the law 
 of England, and when it is pronounced, the immediate and inseparable 
 consequence is attainder ; the law now sets a note of infamy upon him, 
 and puts him out of its protection : he is then called attaint, attinctus, 
 stained, or blackened ; he is no longer of any credit or reputation ; he 
 cannot be a witness in any court, neither is he capable of performing the 
 functions of another man : for by an anticipation of his punishment, he is 
 already dead in law. When judgment is once pronounced, both law and 
 fact conspire to prove him completely guilty, and there is not the most re- 
 mote possibility left of any thing being said in his favour. On judgment, 
 therefore, of death, and not before, the attainder of a criminal commences, 
 or upon such circumstances as are equivalent to judgment of death : as 
 outlawry on a capital crime for absconding or fleeing from justice, which 
 is a tacit confession of guilt : and therefore a man is said to be attainted 
 either upon judgment of outlawry, or of death, for treason or felony. The 
 consequences of attainder are forfeiture and corruption of blood. For- 
 feiture is two-fold, — of real and personal estates. By attainder in high 
 treason, a man forfeits to the king all his lands and tenements of inheri- 
 tance Avhich he possessed at the time the treason was committed. This for- 
 feiture destroys all intermediate sales and incumbrances, but not those con- 
 
«^» PROCEEDINGS IN COURTS OF LAW. 
 
 tracted before the fact ; and therefore a wife's jointure is not affected by her 
 husband's treason. At the time of the union, the crime of treason in Scot- 
 land was, in many respects, by the Scottish law, different from that of 
 treason in England, and particularly in its consequence of forfeitures of en^ 
 tailed estates, which was more peculiarly English ; yet it appeared neces- 
 sary that a crime so nearly affecting government should both in its essence 
 and consequences be put upon the same footing in both parts of the united 
 kingdom. In new-modelling these laws, the Scottish nation and the 
 English house of commons struggled hard, partly to attain and partly to 
 acquire a total immunity from forfeiture and corruption of blood, which 
 the house of lords as firmly resisted. At length a compromise was agreed 
 to, wliich was established by statute, that the same crimes, and no other, 
 should be treason in Scotland which are so in England, and that the 
 English forfeitures and corruption of blood should take place in Scotland 
 till tlie death of the royal exile, then claiming the throne, and then cease 
 throughout the whole of Great Britain ; tlie lords artfully proposed this 
 temporary clause, in hopes, it is said, that the prudence of succeeding 
 parliaments would make it perpetual : which was indeed partly done * in 
 the year preceding the unsuccessful attempt of the gallant Charles Edward 
 to recover the throne of his ancestors. This statute was afterwards re- 
 pealed r-j- so that the law of forfeiture in cases of high treason, is now the 
 same as it was by the common law, or as it stood prior to the seventh year 
 of the reign of queen Anne. 
 
 In petit treason and felony, the offender also forfeits all his chattel in- 
 terests absolutely, and the profits of all his freehold 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 forfeitures of goods and 
 chattels is incurred in every one of the higher kinds of offences ; in high 
 treason, misprision of treason, petit treason, felonies of all sorts, suicide, 
 petit larceny, standing mute, &c. There is a difference between the for- 
 feiture 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, ; but that of goods and chattels has not, so that a 
 man forfeits those only which he possesses at the time of conviction. 
 
 Another immediate consequence of attainder is the corruption of blood 
 both upwards and downwards : so that an attainted person can neither in- 
 herit lands or other heredittaments from his ancestors, retain those he is 
 already in possession of, nor transmit by descent to any heir ; but the same 
 shall escheat to the lord of the fee, subject to the king's superior right of 
 forfeiture ; and the person attainted shall also obstruct all descents to his 
 
 * 17 Geo. II., c. 39. t 39 Geo. III., c. 93. 
 
PROCEEDINGS IN COURTS OF LAW. 229 
 
 posterity, wherever they are obliged to derive a title through him to a re- 
 moter ancestor. 
 
 Reversal op Judgment — After judgment has been awarded, it 
 may yet be reversed, and all its consequences set aside in two ways, either 
 by falsifying 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 judg- 
 ment whatever is given by persons who had not a good authority to pro- 
 ceed against the person condemned, it is void : 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 proceedings 
 will be ipso facto void, if any of the other twelve should act without the 
 interposition of either A. or B. Formerly judgments might be reversed 
 by writ of error ^ which lies from all inferior courts lo the king's bench, 
 and thence to the house of lords. A writ of error might have been 
 brought for gross mistakes in the judgment or other parts of the record : 
 as if a man found guilty of perjury should receive the judgment of felony, 
 so also for less palpable blunders, as the want of the proper addition to 
 the defendant's name in the indictment, and for any other similar clause. 
 But by a late statute,* it has been enacted that no judgment upon any in- 
 dictment or information for any felony or misdemeanor, whether after ver- 
 dict or outlawry, or by confession, default, or otherwise, shall be stayed or 
 reversed for want of the averment of any matter unnecessary to be proved, 
 nor for the omission of the words " as appears by the record," or of the 
 words " with force of arms," or " against the peace," nor for the inser- 
 tion of the words, '•' against the form of the statute," instead of the words 
 " against the form of the statutes," or vice versa^ nor for that any per- 
 son mentioned in the indictment, or information is designated by a name 
 of office or other descriptive appellation, instead of his proper name, nor 
 for omitting to state the time at which the offence was committed ; in any 
 case where time is not of the essence of the offence, nor for stating the 
 time imperfectly, nor for stating the offence to have been committed on a 
 day subsequent to the commencement of the prosecution, or on an impossible 
 day, or on a day that never happened ; nor for want of a proper or per- 
 fect venue, where the court shall appear by the record to have had juris- 
 diction over the offence. By the 21st section, it is provided that no judg- 
 ment after verdict upon any indictment or information, for any felony or 
 misdemeanor, shall be stayed or reversed for want of a siiniliter, nor by 
 reason that the jury process has been awarded to a wrong officer, upon an 
 insufficient suggestion, nor for any misdescription of the officer returning 
 such process, or of any of the jurors, nor because any person has served 
 
 * 7 Geo. IV., c. 64. 
 
230 PROCEEDINGS IN COURTS OF LAW. 
 
 upon the jury who has not been returned as a juror by the proper of- 
 ficer. 
 
 Reprieve, or Pardon — The only remaining ways of avoiding the exe- 
 cution of the judgment, are by a reprieve or pardon. A reprieve, from 
 reprejidre, to take back, is the withdrawal of a sentence for an interval of 
 time, whereby the execution is suspended, and may be granted at the will 
 of the judge, either before or after judgment. The judge frequently ex- 
 ercises this power whenever he is either dissatisfied with the verdict, or 
 considers the evidence suspicious, or whenever such favourable circum- 
 stances in the prisoner's case and character appear, as induces him to 
 apply to the king, either for an absolute or a conditional pardon. A woman 
 capitally convicted, and pleading pregnancy, will be respited till delivered, 
 although it is not a bar to judgment. This is a mercy dictated by the law 
 of nature ; and therefore no part of the popish persecution in the reign of 
 queen Mary has been more justly detested than the inhuman cruelty which 
 was exercised in the island of Guernsey, of burning a woman big with 
 child : and when, through the violence of the flames, the infant sprang 
 forth at the stake, and was preserved by the bystandeBs, after some deli- 
 beration of the priests who assisted at the sacrifice, it was again cast into 
 the fire as a young heretic ! Such is papal Rome ; a barbarity which 
 they never learned from pagan Rome, whose laws in respect of pregnant 
 women were the same as our own. In case this plea, however, is made in 
 stay of execution, the judge must direct a jury of twelve matrons or dis- 
 creet women to inquire into the fact ; and if they return a verdict quick 
 ivith child, execution shall be staid generally till the next session, and so 
 from session to session till she is either delivered, or proves, by the course 
 of nature, not to have been with child at all ; but a verdict simply of with 
 child is not sufl[icient unless it is alive in the Avomb. 
 
 The law likewise requires a reprieve when theoflfender becomes noncorn- 
 pos, between the judgment and the execution ; because with its usual lenity 
 it argues that perhaps the convict might have offered some reason to have 
 staid the execution of the judgment, had he been in his right mind. Or the 
 oflTender may plead in bar of execution, either the king's pardon or an act 
 of grace. If neither pregnancy, insanity, nor any other plea will avail to 
 avoid the judgment and stay the consequent execution, the last and surest 
 resort is tlie king's most gracious pardon. The king, in his coronation 
 oath, promises to administer justice in mercy, and it is an act of his go- 
 vernment which is entirely and peculiarly personal, and his own. He per- 
 sonally condemns no man, that disgracious task he leaves to his deputies 
 to perform ; but to wield the sceptre of mercy is his own gracious act. 
 This is a right inherent in the crov/n, Jure divino, and it has been declared 
 in pailiament * " tliat no other person hath the power to pardon or remit 
 
 * 27 Henry VIII., c. 24. 
 
PROCEEDINGS IN COURTS OF LAW. 231 
 
 any treason or felonies whatsoever : but that the king hath the whole and 
 sole power thereof, united and knit to the imperial crown of this realm," 
 
 This attribute of mercy is one of the great advantages and blessings of 
 monarchy in general, above any other form of government j that there is a 
 supreme governor who has it in his power to extend mercy wherever he 
 thinks it is deserved : who holds, as it were, a court of equity in his own 
 breast, to soften the rigour of the general laws, in such criminal cases as 
 merit an exemption from punishment. According to some enthusiastic 
 theorists, pardon should be excluded in a perfect legislation, where punish- 
 ments are mild but certain ; because, say they, the clemency of the prince 
 seems a tacit disapprobation of the law. But the exclusion of pardons must 
 necessarily introduce a very dangerous power in the judge or jury, that of 
 construing the criminal law by the spirit instead of the letter : or else it 
 must be holden, what no man will seriously avow, that the situation or cir- 
 cumstances of the offender (though they make no alteration in the essence 
 of the crime), ought to make no distinction in the punishment. In demo- 
 cratic or republican governments, this point of pardon can nowhere sub- 
 sist : for in such, no one is acknowledged higher than the judge who ad- 
 ministers the law ; and it would be impolitic for the power of judging and 
 of pardoning also, to centre in one and the same person. This, says 
 Montesquieu,* would oblige him very often to contradict himself: to make 
 and unmake his own decisions ; it would tend to confound all ideas of 
 right and wrong among the mass of the people : as they would find it 
 difficult to distinguish whether a prisoner were discharged by his inno- 
 cence, or obtained a pardon through favour. Formerly in Holland, when 
 there was no Stadtholder, there was no power of pardoning offenders, so 
 it was all judgment and no mercy. But in monarchies, the king acts in a 
 superior sphere, and though he regulates the whole government as the 
 first mover, yet he never appears in any of its disagreeable or invidious 
 parts. Whenever the nation sees him personally engaged, it is al\^ays in 
 works of legislation, magnificence, or mercy and compassion. To him, 
 therefore, the people look up as the gracious fountain of mercy and 
 bounty ; and these constant acts of goodness coming immediately from his 
 own hand, endear the sovereign to his people as their father and protec- 
 tor, and contribute more than any thing to root in their hearts that filial 
 affection and personal loyalty, which are the marks of a religious and 
 obedient people, and the sure establishment of a paternal monarch. 
 
 With respect to the objects of pardon, the king may pardon all offences 
 merely against the crown, or the public generally, with some exceptions to 
 this general rule : as, for instance, to preserve the liberty of the subject, 
 the committing any man to prison out of the realm, is, by the Habeas 
 
 * Spirit of Laws, b. vi. c. 5. 
 
232 PROCEEDINGS IN COURTS OF LAW. 
 
 Corpus act * made a prenumirc, and unpardonable even by tlie king Iiiiri- 
 self ; neitlier can the king pardon where private justice is principally con- 
 cerned. There is also a restriction of a peculiar nature that afiects tlie 
 prerogative of pardoning in cases of parliamentary impeachments: viz., 
 that the king's pardon cannot be pleaded to any such impeachment, so as 
 to impede tlie inquiry and stop tlie prosecution of great and notorious of- 
 fenders. Therefore, when in the reign of Charles II., the earl of Danby 
 was impeached of high treason by the house of commons, and pleaded the 
 king's pardon in bar of the same, tlie commons alleged " that there was 
 no precedent that ever any pardon was granted to any persons impeached 
 by the commons of high treason or other crimes, depending the ivipeacli- 
 incnt^''' and thereupon resolved *' tliat the pardon so pleaded was illegal and 
 void, and ouglit not to be allowed in bar of the impeaclmient of tlie com- 
 mons of England ;" for which resolution they assigned this reason to the 
 house of lords, " that the setting up a pardon to be a bar of an impeach- 
 ment defeats the whole use and effect of impeachments ; for should this 
 point be admitted, qr stand doubted, it would totally discourage the ex- 
 hibiting any for the future ; whereby the chief institution for the preser- 
 vation of government would be destroyed. Soon after tlie Revolution, 
 the commons renewed the same claim, and voted that a pardon is not 
 pleadable in bar of an impeachment." And at length it was enacted,f 
 that no pardon under the great seal of England shall be pleadable to an 
 impeachment by the commons in parliament. But after the impeachment 
 has been solemnly heard and determined, the king's royal grace is then no 
 farther restrained : for after the impeachment and attainder of the six 
 lords in 1715, three of them were from time to time reprieved by the 
 crown, and at length received the benefit of the king's most gracious par- 
 don. 
 
 After the lords have delivered their sentence of guilty, it is in the 
 power of the commons to pardon the impeached convict, by refusing to 
 demand judgment against him ; for no judgment can be pronounced by 
 the lords till it is demanded by the commons. It was formerly a matter of 
 doubt whether or not a dissolution of parliament abated an impeachment. 
 But after a very full and learned discussion of the question in the im- 
 peachment of Warren Hastings, it was decided by a very large majority 
 in both liouses, that the dissolution did 7iot abate the impeachment. In- 
 deed, it is obvious that were a dissolution of parliament to render an im- 
 peacliment by the commons of England void, a corrupt minister would al- 
 ways resort to this measure to shelter himself from the violence of the 
 storm that had gathered round him, and which he plainly saw would event- 
 ually burst over his head and overwhelm him with disgrace and ruin. 
 
 * 31 Car, II., v.. 2. f 12 & 13 W. and M., c. 2. 
 
PROCEEDINGS IN COURTS OF LAW. 233 
 
 A pardon must be under the great seal of England. If there be any 
 suppression of the truth, or suggestion of falsehood in a charter of par- 
 don, the validity of );he whole is destroyed ; because it is to be inferred, that 
 the king has been deceived on the subject, otherwise he would not have 
 granted the pardon. As general records in pardons have but a very im- 
 perfect effect, it is necessary that the conviction and attainder be particu 
 larly specified. So also in cases of treason or murder, no pardon shall be 
 allowed, unless the defence be accurately described therein. And in mur- 
 der, it must be clearly expressed whether the crime was committed by 
 lying in wait, assault, or malice prepense. By the recent statute to which 
 we have so frequently appealed,* it is declared, that when the king shall 
 be pleased to extend mercy to any offender convicted of any felony punish- 
 able with death or otherwise, and by warrant under the sign-manual, 
 countersigned by one of the principal secretaries of state, shall grant to 
 such offender either a free or conditional pardon ; the discharge of such 
 offender out of custody, in the case of a free pardon, and the performance 
 of the condition in the case of a conditional pardon, shall have the effect 
 of a pardon under the great seal, as to the felony for which such pardon 
 shall be so granted. This statute also contains an express condition, that 
 neither a free nor a conditional pardon shall prevent or mitigate the 
 punishment to which the offender might otherwise be lawfully sentenced on 
 a subsequent conviction for any felony committed after the granting of such 
 pardon. 
 
 A pardon may be conditional; that is, the king may extend his mercy on 
 what terms he pleases, and may annex to his bounty a condition either 
 precedent or subsequent, on the performance of whicii the validity of the 
 pardon will depend ; which prerogative is daily exerted in the pardon of 
 felons, on condition of their being confined to hard labour for a stated 
 time, or of transportation to some foreign country for life, or a term of 
 years. The punishment of transportation was first resorted to in England 
 in the year 1597, being the thirty-ninth year of the reign of Elizabeth. 
 The king's pardon by charter must be specially pleaded at a proper time, 
 that is either upon arraignment or in arrest of judgment, or in bar of exe- 
 cution. The necessary effect of the king's pardon is to make the offender 
 a new man, by acquitting him of all corporal penalties and forfeitures, the 
 consequences of his crime, and to give him a new credit and capacity. 
 Attainder corrupts the blood, and if the pardon is not granted before that 
 takes place, the polluted stream can only be purified by an act of parlia- 
 ment. But if the attainted person have a son and who has no elder brother 
 living born before the attainder, that son may inherit his father's proper- 
 ty ; yet if he had been born prior to the grant of the pardon, he never 
 
 * 7 & 8 Geo. IV. c. 28 
 2 G 
 
^34 PROCEEDINGS IN COURTS OF LAW. 
 
 could liave inherited at all, and the land will escheat pro defectu hoeredis. 
 Yet if an attainted person receives the king's pardon, and afterwards has 
 a son, that son may be heir to his father, because the father being made a 
 new man, might transmit new inheritable blood. 
 
 Execution. — We are now called on to witness a most affecting scene ; 
 the humiliating and terrible completion of a capital offender's punishment. 
 Execution, in all cases, as well capital as otherwise, must be performed by 
 the legal officer, the sheriff, or his deputy : whose warrant was anciently 
 by precept, under the judge's hand and seal, as it is still practised in the 
 court of the lord liigh steward on the execution of a peer ; though in the 
 court of the peers in parliament, it is done by writ from the king. It 
 was afterwards established, that in case of life, the judge may command 
 execution to be done without any writ. And the usage now is for the judge 
 to sign tlie calendar or list of all the prisoner's names, with their separate 
 judgments in the margin, which is left with the sheriff. As for a capital 
 felony, it is written opposite to the prisoner's name, " let him be hanged 
 by the neck." Formerly, in the days of Latin and abbreviation, the Avrit- 
 ing was " sus per coll,^' for " suspeiidatur per collum.'''' And these words 
 are the sheriff's only warrant for so important an act as to deprive a fellow 
 creature of life. It may afford matter of speculation, that in civil causes 
 there should be such a variety of writs of execution to recover a trifling debt 
 issued in the king's name, and under the seal of the court, without which 
 the sheriff cannot legally stir one step, and yet that the execution of a man 
 should depend on a marginal note. In a note on this place, professor Chris- 
 ticin says, though it be true that a marginal note of a calendar signed by the 
 judge, is the only warrant that the sheriff has for the execution of a con- 
 vict ; yet it is made with more caution and solemnity than is represented by 
 the learned commentator. At the end of the assizes, tlie clerk of the as- 
 size makes out four lists of all the prisoners, with separate columns, con- 
 taining their crimes, verdicts, and sentences, leaving a blank column, in 
 which, if the judge has reason to vary the course of the law, he writes op- 
 posite the names of the capital convicts, to he reprieved, respited^ trans- 
 ported, &c. These four calendars, being first carefully compared together 
 by the judge and the clerk of assize, are signed by them, and one is given 
 to the sheriff, one to the gaoler, and the judge and clerk of assize each keep 
 another. If the sheriff does not afterwards receive a special order from 
 the judge, he executes the judgment of the law in the usual manner, 
 agreeably to the directions of his calendar. In every county this impor- 
 tant subject is settled with great deliberation by the judge and the clerk of 
 assize, before the judge leaves the assize town ; but probably in different 
 counties with some slight variation : as in Lancashire, where no calendar 
 is left with the gaoler, but one is sent to the secretary of state. If the 
 judge thinks it proper to reprieve a capital convict, he sends a memorial 
 
PROCEEDINGS IN COURTS OF LAW. 235 
 
 or certificate to the kings most excellent majesixj^ directed to the secretary 
 of state's office, stating that from favourable circumstances appearing at 
 the trial, he recommends him to his majesty's mercy, and to a pardon on 
 condition of transportation or some other punishment : which recommend- 
 ation is always attended to. 
 
 On receipt of this warrant, the sheriff is to do execution on the criminal 
 within a convenient time ; which in the country is also left at large. A 
 more becoming and solemn exactness is, however, used in London, both 
 as to the warrant itself and its execution; for the recorder, after reporting 
 to the king in person the case of the several prisoners, and receiving his 
 royal pleasure that the law must take its course, issues his warrant to tlie 
 sheriffs, directing them to do execution on the day and at the place as- 
 signed : of which the following is a copy : — 
 
 JVarrant of execution on judgynent of death, at the general gaol- delivery ^ in 
 London and Middlesex. 
 
 London T To the sheriff of London, and to the sheriff of the county of Middlesex, 
 
 MiddLsex. 5 ^"^ ^ ^^® keeper of his majesty's gaol of Newgate 
 
 Whereas, at the session of gaol-delivery of Newgate, for the city of London and county 
 of Middlesex, holden at Justice- Hall, in the Old Bailey, on the nineteenth day of October 
 last, Patrick Mahony, Roger Jones, Charles King, and Mary Smith, received sentence of 
 death, for the respective oflences in their severfj indictments mentioned : Now, it is here- 
 by ORDERED, that execution of the said sentence be made and done upon them, the said 
 Patrick Mahony and Roger Jones, on Wednesday, the ninth day of this instant month of 
 November, at the usual place of execution. And it is his majesty's command, that execu- 
 tion of the said sentence upon them, the said Charles King and Mary Smith, be respited, 
 until his majesty's pleasure touching them be fiirther known. 
 
 GivEK under my hand and seal this fourth day of November, one thousand eight huu- 
 dred and thirty three, 
 
 JAMES EYRE, Recorder, L.S. 
 
 In the court of king's bench, if the prisoner be tried at the bar, or 
 brought there by habeas corpus, a rule is made for his execution, either 
 specifying the time and place, or leaving it to the sheriff's discretion. 
 And throughout the kingdom, in cases of murder, the judge in his sen- 
 tence shall direct execution to be done on the next day but one after sen- 
 tence passed. It has been held, however, by a majority of the judges, 
 that the statute * enacting this course is merely directory as to the time of 
 execution ; and that notwithstanding the statute, the judge may order a 
 prisoner convicted of murder to be executed immediately, or at any other 
 time within forty-eight hours, as in other cases of capital convictions. The 
 time and place of execution are not part of the judgment by any law, as 
 has been held by the twelve judges. It has been well observed, that it is 
 of great importance that the punishment should follow the crime as early 
 as possible, that the prospect of gratification or advantage whicli tempted 
 
 * 25 Geo. II., c. 37. 
 
236 PROCEEDINGS IN COURTS OF LAW. 
 
 the coTfimission of the crime, should instantly awake the attendant idea of 
 punishment. Delay of execution only serves to separate these ideas : and 
 then the execution itself affects the minds of the spectators rather as a 
 terrible sight, than as the necessary consequence of transgression. 
 
 The sheriff cannot alter the manner of the execution by substituting 
 one mode of death for another, without being himself guilty of felony. 
 But the king can change one mode of death for another ; because this pre- 
 rogative being founded in mercy, and immemoriably exercised by the 
 crown, is part of the common law. For in every instance, these exchanges 
 have been for more merciful kinds of death. It is observable that when 
 lord Stafford was executed for the popish plot in the reign of Charles II., 
 the three sheriffs of London having received the king's writ for beheading 
 him, petitioned the house of lords for a command or order from their 
 lordsliips how the said judgment should be executed ; for having been pro- 
 secuted by impeachment, they entertained a notion, (which is said to have 
 been countenanced by lord Russell,) that the king could not pardon any part 
 of the sentence. The lords resolved that the sheriff's scruples were unne- 
 cessary, and declared tliat the king's writ ought to be obeyed. Disap- 
 pointed of raising a flame in that assembly, they immediately signified to 
 the house of commons, by one of the members, that they were not satisfied 
 as to the power of the said writ. That house took two days to consider of 
 it, and then sullenly resolved that the house was content that the sheriffs do 
 execute lord Stafford, by severing his head from his body. It is further 
 related, that when the same lord Russell was liimself afterwards condemned 
 for higli treason upon indictment, the king, while he remitted tlie igno- 
 minious part of the sentence, sarcastically observed, that " his lordship 
 would now find that he was possessed of that prerogative, which in the case 
 of lord Stafford he had denied him." 
 
 A common opinion prevails, that if after hanging the usual time, a 
 person should be cut down, and revive by any means, tlie law has no longer 
 any demand on him, but this is a great mistake : for as he was sentenced to 
 be hanged by the neck till he was dead, the former was not an execution of 
 the sentence : and, therefore, the sheriff at his peril must hang liim again 
 till the law's extent be fulfilled ; for if a false tenderness were indulged in 
 such cases, a multitude of collusions might ensue. 
 
 We have now attended the unhappy criminal, from his first apprehen- 
 sion by the constable, tlirough all the stages of his trial to his final execu- 
 tion. How happily might not the felon have lived in society, had he not 
 broken God's holy laws and commandments, and wilfully violated those 
 wise and equitable human laws which are grounded on the ten command- 
 ments, and which merely required his obedience, in return for the constant 
 protection whicli they aflforded him against the oppressions of others. We 
 have seen how surely and closely punishment treads on the heels of transgres- 
 
THE RISE, PROGRESS, &c. 237 
 
 sion ; we have seen that the English code of criminal justice is not a sys- 
 tem of relentless cruelty, but of wisdom and compassion ; we have ob- 
 served with what care and jealousy the laws watch over the life, the liberty, 
 and (he property even of the meanest subject ; we have seen that the 
 guilty often escape the vengeance of the law through the most trifling 
 circumstance j and that the wise institution of a grand as well as a petit 
 jury, almost to a certainty secures an innocent man from punishment ; we 
 have admired that clemency of the law which even after judgment creates 
 a per ad venture that the criminal may yet escape with his life ; we have be- 
 held how the royal prerogative of pardon is calculated to soften the rigour 
 of the law, when its strict execution would be too severe : and we con- 
 template with satisfaction and gratitude, that it cannot fail to be exercised 
 upon all suitable occasions, whilst God himself keeps the hearts of kings in 
 his own hand.* 
 
 THE RISE, PROGRESS, AND GRADUAL IMPROVEMENT 
 OP THE LAWS OF ENGLAND. 
 
 What is at present proposed is only to mark out some outlines of 
 English juridical history, by taking a chronological view of the state of 
 the laws, and their successive mutations at different periods of time ; and 
 the several periods under which they will be considered are the following 
 six : — 
 
 I. From the earliest times to the Norman conquest. 
 
 II. From the Norman conquest to the reign of Edward I. 
 
 III. From thence to the Reformation. 
 
 IV. From the Reformation to the Restoration of king Charles II. 
 
 V. From thence to the Revolution, 1688. 
 
 VI. From thence to the present times. 
 
 I. And first, with regard to the ancient Britons, the aborigines of our 
 island, we have so little handed down to us concerning them with any 
 tolerable certainty, that our inquiries must necessarily be both fruitless and 
 defective. However, from the account which Caesar has handed down in 
 his commentaries of the tenets and ancient discipline of the ancient Druids 
 in Gaul, in whom centered all the learning of these western parts, and 
 who were, as he tells us, sent over to Britain (that is, to the island of 
 Mona or Anglesey,) to be instructed ; we may collect a few points which 
 bear a great affinity and resemblance to some of tlie modern doctrines of 
 
 * Blackstone's Commentaries, with professor Christian's Notes — Custance on the Con- 
 stitution—Statutes at large. 
 
238 RISE, PROGRESS, AND IMPROVEMENT 
 
 the English law. Particularly, the very notion itself of an oral unwritten 
 law, delivered down from age to age by custom and tradition merely, 
 seems to have been derived from Druid ical practice, who never committed 
 any of their instructions to writing, unquestionably from the want of 
 letters, since it is remarkable that in all the antiquities (unquestionably 
 British) which modern industry has discovered, there is not the least trace 
 of any character or letter in any of them to be found. The partible 
 quality, also, of lands, by the custom of gravel-kind, which still obtains in 
 many parts of England, and universally prevailed all over Wales till the 
 reign of Henry VIII., is undoubtedly of British original. So likewise is 
 the ancient division of the goods of an intestate between his widow and 
 children, or next of kin ; which has since been revived by the statute of 
 distributions. And we may also mention an instance of a slighter nature, 
 mentioned under the head of treason, where the same custom has con- 
 tinued since Caesar's time, although it has now been altered by statute, 30 
 Geo. III., that of burning a woman guilty of the crime of petty treason by 
 killing her husband. The law now determines by the above statute that 
 women guilty of petit treason shall no longer be sentenced to be burnt, 
 but that in all such cases they shall be subject besides to the same judg- 
 ment with regard to dissection and the time of execution, as is customary 
 in cases of murder. 
 
 The great variety of nations that successively broke in upon and de- 
 stroyed both the British inhabitants and constitution, — the Romans, the 
 Picts, and after them the various clans of Saxons and Danes, — must neces- 
 sarily have caused great confusion and uncertainty in the laws and antiquities 
 of the kingdom, as they were very soon incorporated and blended together, 
 and therefore we may suppose materially communicated to each other their 
 respective usages in regard to the rights of property and the punisliment 
 of crimes.* So that it is morally impossible to trace out with any degree 
 of accuracy when the several mutations of the common law were made, or 
 what was the respective original of those several customs we at present 
 use, by any chemical resolution of them to their first and component prin- 
 ciples. We can seldom pronounce with certainty, that iJiis custom was 
 derived from the Britons ; that that was left behind by the Romans ; that 
 this was a necessary precaution against the Picts ; or that that was intro- 
 duced by the Saxons, discontinued by the Danes, and afterwards restored 
 by the Normans. 
 
 Wherever this can be done, it is matter of great curiosity, and perhaps 
 of some use ; but this can very rarely be the case, not only from the rea- 
 son above mentioned, but also from many others. First, from the nature 
 of traditional laws in general, which being accommodated to the exigencies 
 
 * Halliim's Hist. c. L. 62 
 
OF THE LAW OF ENGLAND. 239 
 
 of the times, suffer by degrees insensible variations in practice :* so that 
 tliough, upon comparison, we plainly discern the alteration of the law from 
 what it was five hundred years ago, yet it is impossible to define the pre- 
 cise period in which that alteration accrued, any more than we can discern 
 the changes that the bed of a river undergoes which gradually and imper- 
 ceptibly varies its shores by continual decreases and alluvions. Secondly, 
 this becomes impractible, from the antiquity of the kingdom and its go- 
 vernment : which, although it had never been disturbed by foreign inva- 
 sions, would alone make it impossible to search out the original of its laws, 
 unless we had as effectual monuments thereof as the Jews had by the 
 hands of Moses.f Thirdly, this uncertainty of the true origin of particu- 
 lar customs must also in part have arisen from the means wliereby Chris- 
 tianity was propagated among the Saxon inhabitants of England, by learn- 
 ed foreigners, brought over from Rome and other countries, who un- 
 doubtedly introduced many of their own national customs, and probably 
 prevailed on the state to abrogate such usages as were inconsistent with 
 our holy religion, and to introduce many others that were more in con- 
 formity witJi its precepts. And this may have been partly the cause, that 
 we not only find some rules of the Mosaical, but also of the imperial and 
 pontifical laws, blended with and adopted into our system. 
 
 A further reason may also be given for the great variety, and of course 
 the uncertain original, of many ancient established customs ; even after 
 the Saxon government Avas firmly established in England, viz. — the sub- 
 division of the kingdom into a heptarchy, consisting of seven independent 
 kingdoms, peopled and governed by different clans and colonies. This 
 must necessarily create an infinite diversity of laws : even though all those 
 colonies of Jutes, Angles, Anglo-Saxons and the like, originally sprang 
 from the same mother country, the great northern hive, which poured 
 forth its warlike progeny, and swarmed all over Europe in the sixth and 
 seventh centuries. This multiplicity of laws will necessarily be the case in 
 some degree, where any kingdom is cantoned out into any provincial es- 
 tablishments, and not under one common dispensation of laws, though 
 under the same sovereign power. Much more will it happen where seven 
 unconnected states are to form their own constitution and superstructure 
 of government, though they all begin to build upon the same or similar 
 foundations. 
 
 When, therefore, the West Saxons had swallowed up all the rest, and 
 king Alfred succeeded to the monarchy of England, whereof his grand- 
 father Egbert was the founder, his mighty genius prompted him to under- 
 take a magnificent and necessary work, which he is said to have executed 
 in as masterly a mannner : no less than to new-model the constitution — to 
 
 * Hallam's Hist. r. 57. f Hail.tm. 
 
2^0 RISE, PROGRESS, AND IMPROVEMENT 
 
 rebuild it on a plan that should endure for ages, and out of its old and 
 discordant materials, which were heaped on each other in vast and rude 
 irregularity, to form one uniform and well connected whole. This he 
 effected by reducing the whole kingdom under one regular and gradual 
 subordination of government, wherein each man was answerable to his im- 
 mediate superior for his own conduct and that of his immediate neigh- 
 bours ; for to him we owe that master-piece of judicial polity, the sub- 
 division of England into tithings and hundreds, if not into counties : all 
 under the influence and administration of one sovereign, the king, in 
 whom, as in a general reservoir, all the executive authority of the law was 
 lodged, and from whom justice was dispensed to every part of the nation 
 by distinct, yet communicating ducts and channels ; which wise institution 
 has been preserved for upwards of a thousand years, from Alfred's time to 
 the present. He also, like another Theodosius, collected the various cus- 
 toms that he found dispersed in the kingdom, and reduced and digested 
 them into one uniform system or code of laws, in his som-bec, or liherju- 
 dicialis. This he compiled for the use of the court-baron, Iiundred, and 
 county court, the court-leet and sheriff's tourn ; tribunals which he estab- 
 lished for the trial of all causes, civil and criminal, in the very districts 
 wherein the complaint arose; all of them subject, however, to be inspect- 
 ed, controlled, and kept within the bounds of the universal or common law, 
 by the king's own courts : which were then itinerant, being kept in the 
 king's palace, and removing with his household in those royal progresses 
 which he continually made from one end of the kingdom to the other. 
 
 The Danish invasion and conquest, whicii introduced new foreign cus- 
 toms, was a severe blow to this noble fabric : but a plan so excellently con- 
 certed could never be long thrown aside, so that upon the expulsion of 
 these intruders, the English returned to their ancient laws: retaining, how- 
 ever, some few of the customs, of their late visitants, which were denomin- 
 ated Dane-lage: as those compiled by Alfred was called the West-Saxon- 
 lage ; and the local constitutions of the ancient kingdom of Mercia, which 
 obtained in the counties nearest to Wales, and probably abounded with 
 many British customs, were called the Merceu-lage. And these three 
 laws were, about the beginning of the eleventh century, in use in different 
 counties of the realm j the provincial polity of counties and their subdi- 
 visions having never been altered or discontinued through all the shocks 
 and mutations of government, from its first institution : though the laws 
 and customs therein used, have (as we shall see) often suffered consider- 
 able changes. 
 
 For king Edgar, (who, besides his military merit as founder of the 
 English navy, was also a most excellent civil governor,) observing the ill 
 effects of three distinct bodies of laws prevailing at once in separate parts 
 of his dominions, projected and began what his grandson, Edward the 
 
OF THE LAW OF ENGLAND. 241 
 
 Confessor, afterwards completed : viz. — one uniform digest or body of laws 
 to be observed througliout the v/hole kingdom, being probably no more 
 than a revival of king Alfred's code, with some improvements suggested 
 by necessity and experience ; particularly the incorporation of some of the 
 Britisli or rather Mercian customs, and also such of the Danish as were 
 reasonable and approved, into the West-Saxon-lage^ which was still the 
 fundamental code of the whole. And this appears to be the best support- 
 ed and most plausible conjecture, (for certainty cannot be expected) of 
 the rise and original of that admirable system of maxims and unwritten 
 customs which is now known by the name of the common law, as ex- 
 tending its authority universally over all the realm, and which is doubtless 
 of Saxon parentage. 
 
 Among the most remarkable of the Saxon laws, we may reckon, 1st, 
 The constitution of parliaments, or rather general assemblies of the bishops 
 and wisest men in the nation ; " king Alfred obtained for a perpetual 
 usage that these councils should meet twice in the year, or oftener, if need 
 be, to treat of the government of God's people : how they sliould keep 
 themselves from sin, should live in quiet, and should receive right ;"* the 
 Wittena-gemotte of the ancient Germans, which was not yet reduced to 
 the forms and distinctions of our modern parliament, without whose con- 
 currence, however, no new law could be made, or old one altered. 2nd, 
 The election of their magistrates by the people. But that of all sub- 
 ordinate magistrates, their military officers or heretocks, their sheriffs, 
 their conservators of the peace, their coroners, their portereves, (since 
 changed into mayors and bailiffs,) and even their tything men and house- 
 liolders at the leet, continued, some till the Norman conquest, others for 
 two centuries after, and some remain to this day. 3. The descent of the 
 crown, when once a royal family was established, upon nearly the same 
 hereditary principles on which it has ever since continued : only that per- 
 Iiaps in cases of minority, the next of kin of full age would ascend the 
 throne as king, and not as protector, though after his death, the crown 
 immediately reverted back to the heir. 4. The great paucity of capital 
 punishments for the first offence : even the most notorious offenders being 
 allowed to commute it for a fine or iveregild, or in default of payment, 
 perpetual bondage ; to which the benefit of clergy afterwards in some 
 measure succeeded. 5. The prevalence of certain customs, as heriots 
 and military services, in proportion to every man's land, which much re- 
 sembled the feudal constitution ; but yet were exempt from all its rigorous 
 hardships ; and which may be well enough accounted for by supposing 
 them to be brought from the continent by the first Saxon invaders, in the 
 
 * Blackstone, Vol. I., 147. 
 2 H 
 
243 RISE, PROGRESS, AND IMPROVEMENT 
 
 primitive moderation and simplicity of the feudal law, before it got into 
 the hands of the Norman jurists, who extracted the most slavish doctrines 
 and oppressive consequences out of what was originally intended as a law 
 of liberty. 6. That those estates were liable to forfeiture for treason, 
 but that the doctrine of escheats and corruption of blood for felony, or 
 any other cause, was utterly unknown amongst them. 7. The descent of 
 their lands to all the males equally, without any right of primogeniture ; 
 a custom which obtained among the Britons, was agreeable to the Roman 
 law, and continued among the Saxons till the Norman conquest : though 
 really inconvenient, and more especially destructive to ancient families : 
 which are necessary to be supported in monarchies, in order to form and 
 keep up a nobility or intermediate state between the prince and the common 
 people. 8. The courts of justice consisted principally of the county courts, 
 and in cases of weight and nicety the king's court held before himself in 
 person, at the time of his parliaments ; which were usually holden in dif- 
 ferent places, according to the place where he kept the three great festi- 
 vals of Christmas, Easter, and Whitsuntide. An institution which was 
 adopted by king Alonzo VII. of Castile, about a century after the con- 
 quest : who at the same three great feasts, was in the habit of assembling 
 his nobility and prelates in his court : who there heard and decided all 
 controversies, and then having received his instructions departed home.* 
 These county courts, however, differed from the modern ones, in that the 
 ecclesiastical and civil jurisdiction were blended together : the bishop and 
 the ealdorman or sheriff sitting in the same county court ; and also that 
 the decisions and proceedings therein were much more simple and unem- 
 barrassed : an advantage which will always attend the infancy of any 
 laws, but wear off as they gradually advance to antiquity. 9. Trials 
 among a people which had a very strong tincture of superstition were 
 permitted to be by ordeal, by the corsned or morsel of execration, or by 
 wager of law with compurgators, if the party chose it ; but frequently 
 they were also by jury ; for whether their juries consisted of precisely 
 twelve men or not, or were bound to a strict unanimity, yet the general 
 constitution of this admirable criterion of truth, and most important guar- 
 dian both of public and private liberty, we owe to our Saxon ancestors. In 
 this state stood the general frame of our polity at the time of the Norman 
 invasion ; when the second period of the legal history of England com- 
 mences. 
 
 II. This important event wrought as great an alteration in the laws of 
 England as it did in the ancient line of her kings : and though the alteration of 
 the former was effected rather by the consent of the people than by any 
 right of conquest, yet that consent seems to have been partly extorted by 
 
 * Modern Un. Hist. xx. 114. 
 
OF THE LAW OF ENGLAND. 243 
 
 fear, and partly given without any apprehension of tlie consequences which 
 afterwards ensued. 
 
 1. Among the first of these alterations, we may reckon the separation of 
 the ecclesiastical courts from the civil, which was effected in order to ingra- 
 tiate the new king with the popish clergy, who, for some time before, had 
 been endeavouring, all over Europe, to exempt themselves from the secu- 
 lar power ; and with whose demands the conqueror, like a politic prince, 
 thought it prudent to comply, by reason that their reputed sanctity had a 
 great influence over tlie minds of the people, and because all the little 
 learning of the times was engrossed into their hands, which made them 
 necessary men, and by all means to be gained over to his interest. And 
 this was the more easily efTected, because the disposal of all the episcopal 
 sees being then in the breast of the king, he had taken care to fill them 
 with Italian and Norman prelates. 
 
 2. Another violent alteration of the English constitution, consisted in the 
 depopulation of whole counties for the purposes of the king's royal diversion, 
 and subjecting both them and all the ancient forests of the kingdom to the 
 unreasonable severities of forest laws imported from the continent, whereby 
 the slaughter of a beast was made nearly as penal as the death of a man. 
 In the Saxon times, though no man was allowed to kill or chase the king's 
 deer, yet he might start any game, pursue, and kill it on his own estate. 
 But the rigour of these new constitutions vested the sole property of all 
 the game in England in the king alone ; and no man was allowed to dis- 
 turb any fovA of the air, or any beast of the field, of such kinds as were 
 specially reserved for the amusement of the sovereign, without express 
 license from the king by a grant of a chase or free warren j and 
 those franchises were granted as much with a view to preserve the breed 
 of animals as to indulge the subject. From a similar principle to which, 
 though the forest laws are now mitigated, and by degrees grown entirely 
 obsolete, yet from this root has sprung a bastard slip, known by the name 
 of the game laws, now arrived to, and wantoning in, its highest vigour, 
 both founded on the same notions of permanent property in wild creatures, 
 and both productive of the same tyranny to the commons; but with this 
 difference, that the forest laws established only one mighty hunter through- 
 out the whole realm, whereas the game laws have raised up a little Nimrod 
 in every manor. And in one respect the ancient law was much less un- 
 reasonable than the modern j for the king's grantee of a chase or free 
 warren might kill game in any part of his franchise, but now though a free- 
 holder of less than £lOO per annum is forbidden to kill a partridge upon 
 his own estate, yet nobody else (not even the lord of the manor, unless lie 
 has a grant of free warren) can do it without committing a trespass, and 
 subjecting himself to an action. 
 
 n. A third alteration of the English laws was by narrowing the remedial 
 
244 RISE, PROGRESS, AND IMPROVEMENT 
 
 influence of the county courts, the great seats of Saxon justice, and ex- 
 tending the original jurisdiction of tlie king's justiciars to all kinds of 
 causes, arising in all parts of the kingdom. To this end, the aula regis, 
 with all its multifarious authority, was erected ; and a capital justiciary 
 appointed, with powers so large and boundless, that he became at length 
 a tyrant to the people, and even formidable to the crown itself. The con- 
 stitution of this court, and the judges themselves who presided there, were 
 imported from the duchy of Normandy ; and the natural consequence was 
 an ordination, that all proceedings in the king's courts should be carried 
 on in the Norman, instead of the English language, — a provision the more 
 necessary, because none of his Norman justiciaries understood English j 
 but it was as evident a badge of slavery as ever was imposed on a con- 
 quered people. This lasted till king Edward III. obtained a double victory 
 over the armies of France in their own country, and their language in the 
 courts of law at home. But there was one mischief too deeply rooted 
 thereby, and which king Edward's caution came too late to eradicate. In- 
 stead of the plain and easy method of determining suits in the county courts, 
 the chicanes and subtleties of Norman jurisprudence had taken possession 
 of the king's courts, to which every cause of consequence was drawn. 
 Indeed, that age, and those immediately succeeding it, were the era of 
 refinement and subtlety. There is an active principle in the human soul, 
 that will ever be exerting its faculties to the utmost stretch in whatever 
 employment, by the accidents of time or place, the general plan of educa- 
 tion, or customs and manners of the age and country, it may happen to 
 find itself engaged. The northern conquerors of Europe were then emerg- 
 ing from the grossest ignorance in point of literature ; and those who had 
 leisure to cultivate its progress, were such only as were cloistered in mo- 
 nasteries, the rest being all either soldiers or peasants. And, unfortunately, 
 the first rudiments of science which they imbibed, were those of Aristotle's 
 philosophy, conveyed through the medium of his Arabian commentators, 
 which were brought from the east by the Saracens into Palestine and 
 Spain, and translated into barbarous Latin. So that, though the materials 
 upon which they were naturally employed in the infancy of a rising state, 
 were those of the noblest kind, — the establishment of religion, and the re- 
 gulations of civil polity, — yet having only such tools to work with, their 
 execution was trifling and flimsy. Both the divinity and the law of those 
 times were, therefore, frittered into logical distinctions, and drawn up into 
 metaphysical subtleties, with a most amazingly artificial skill, but which 
 serves no other purpose than to show the vast powers of the human in- 
 tellect, however vainly or preposterously employed. Hence law in parti- 
 cular, whicli (being intended for universal reception) ouglit to be a plain 
 rule of action, became a science of the greatest intricacy j especially when 
 blended with the new refinements engrafted upon feudal property ; which 
 
OF THE LAW OF ENGLAND. 245 
 
 refinements were from time to time gradually introduced by tlie Norman 
 practitioners, with a view to supersede (as tliey in a great measure did) 
 the more homely but more intelligible maxims of distributive justice among 
 the Saxons. And to say the truth, these scholastic reformers have trauvs- 
 mitted their dialect and finesse to posterity, so interwoven in the body of 
 our legal polity, that they cannot be taken out without a manifest injury 
 to the substance. Statute after statute has in later times been made, to 
 pare off these troublesome excrescences, and restore the common law to its 
 pristine simplicity and vigour ; and the endeavour has greatly succeeded ; 
 but still the scars are deep and visible ; and the liberality of our modern 
 courts of justice is frequently obliged to have recourse to unaccountable 
 fictions and circuities, in order to recover that equitable and substantial 
 justice, which, for a long time, was totally buried under the narrow rules 
 and fanciful niceties of metaphysical and Norman jurisprudence. 
 
 4. A fourth innovation was the introduction of the trial by combat, for 
 the decision of all civil and criminal questions of fact in the last resort. 
 This was the immemorial practice of all the northern nations, but was 
 first reduced to regular and stated forms among the Burgundi, about the 
 close of the fifth century ; and from them it passed to other nations, par- 
 ticularly the Franks and the Normans, which last had the honour to esta- 
 blish it here, though clearly an unchristian, as well as a most uncertain, 
 method of trial. But it was a sufl[icient recommendation of it to the Con- 
 queror and his warlike countrymen, that it was the usage of their native 
 duchy of Normandy. , 
 
 5. But the last and most important alteration, both in the civil and 
 military polity of England, was the engrafting on all landed estates, a few 
 only excepted, the fiction of feudal tenure ; which drew after it a nume- 
 rous and oppressive train of servile fruits and appendages ; such as aids, 
 reliefs, primer seisins, wardships, marriages, escheats, and fines for aliena- 
 tions ; the genuine consequences of the maxim, that all the lands in Eng- 
 land were derived from, and holden either mediately or immediately of, 
 tlie crown. 
 
 At this period, the nation seems to have groaned under as absolute a 
 slavery, as was in the power of a warlike, an ambitious, and a politic prince 
 to create. Men's consciences were enslaved by four ecclesiastics, devoted 
 to a foreign power, and unconnected with the civil state under which they 
 lived, who imported from Rome, for the Jirst time, the whole fan-ago of 
 superstitious novelties, which had been engendered by the blindness and 
 corruption of the times, between the first mission of Augustin the monk, and 
 the Norman conquest; such as the doctrines of purgatory, communion 
 in one kind, and the worship of saints and images, not forgetting the uni- 
 versal supremacy and dogmatical infallibility of the holi/ see. The laws 
 too, as well as the prayers, were administered in an unknown tongue. 
 
246 RISE, PROGRESS, AND IMPROVEMENT 
 
 The ancient trial by jury gave way to the impious decision by battel. The 
 forest laws totally restrained all rural pleasures and manly recreations. 
 And in cities and towns the case was no better ; all companies being 
 obliged to disperse, and fires and candles to be extinguished by eight o'clock 
 at night, at the sound of the melancholy curfew^ which " toU'd the knell of 
 parting day." The ultimate property of all lands, and a considerable share 
 of the profits even, were vested in the king, or by him granted out to liis 
 Norman favourites, who, by a gradual progression of slavery, were abso- 
 lute vassals to the crown, and as absolute tyrants to the commons. Un- 
 heard of forfeitures, talliages, aids, and fines, were arbitrarily extracted 
 from the pillaged landholders, in pursuance of the new system of tenure. 
 And to crown all, as a consequence of the tenure by knight-service, the 
 king had always ready at his command an army of sixty thousand knights 
 or milites; who were bound upon pain of the confiscation of their estates, 
 to attend him in time of invasion, or to quell any domestic insurrection. 
 Trade or foreign mercliandise, such as it then was, was carried on by the 
 Jews and Lombards, and the very name of an English fleet, which king 
 Edgar had rendered so formidable, was utterly unknown to Europe; the 
 nation consisting wholly of the Romish clergy, who were besides the law- 
 yers ; the barons or great lords of the land ; the knights or soldiery, who 
 were the subordinate landholders ; and the burghers or inferior tradesmen, 
 who, from their insignificance, happily retained in their soccage and bur- 
 gage tenures, some points of their ancient freedom. All the rest were 
 villeins t)v bondsmen. 
 
 From so complete and well concerted a scheme of servility, it has cost 
 our ancestors the work of generations to redeem themselves and their pos- 
 terity, and secure to us that state of liberty which we now enjoy, and 
 which therefore is not to be looked upon merely as encroachments on the 
 crown, and infringements on the prerogative ; but as, in general, a gradual 
 restoration by royal grace, and concession of that ancient constitution 
 whereof the Anglo-Saxons had been unjustly deprived, partly by the po- 
 licy and partly by the violence of the Norman arms. How that restoration 
 has, in a long series of years, been step by step effected, I now proceed 
 to inquire. 
 
 William Rufus proceeded on his father's plan, and, in some points, ex- 
 tended it, particularly with regard to the forest laws. But his brother and 
 successor Henry I. found it expedient, when he first came to the crown, to 
 ingratiate himself with the people by restoring, as the monkish historians 
 relate, the laws of king Edward the confessor. The ground whereof is 
 this : that by charter he gave up the great grievances of marriage, ward, 
 and relief, the beneficial pecuniary fru'iLs of his feudal tenures : but re- 
 served the tenures tliemselves for the same military purposes that induced 
 his father to introduce them. He also abolished the obnoxious curfew; 
 
OF THE LAW OF ENGLAND. 24.7 
 
 for though it is mentioned in the law a full century afterwards, yet it is 
 rather spoken of as a known time of night, than as a still subsisting custom. 
 A code of laws in his name is extant, consisting partly of those of the 
 Confessor, but with great additions and alterations of his own ; and chiefly 
 calculated for the regulation of the county courts. It contains some di- 
 rections as to crimes and their punishments, and, in this code, theft was 
 made a capital crime : a few things relating to estates, particularly regu- 
 lating the descent of lands, were inserted in this code. The descent of lands 
 by the Saxon law being equally to all the sons, by the feudal or Norman 
 to the eldest only, king Henry here moderated the difTerence, directing the 
 eldest son to have only the principal estate, " primum patris feuditm ;" the 
 rest of his estates, if he had any others, being equally divided among them 
 all. On the other hand, he gave up to the clergy the free election of 
 bishops and mitred abbots ; reserving, however, those ensigns of patronage, 
 conge d'elij'e, custody of the temporalities when vacant, and homage upon 
 their restitution. He lastly united again for a time the civil and ecclesiasti- 
 cal courts, which union was soon dissolved by the Romish clergy of Norman 
 extraction ; and upon that final dissolution, the cognizance of testamentary 
 causes seems to have been first given to the ecclesiastical court. The rest 
 remained as in his father's time j from whence we may easily perceive how 
 far short this was of a thorough restitution of king Edward's or the 
 Saxon laws. 
 
 The usurper Stephen, as the manner of usurpers is, promised much at 
 his accession, especially with respect to redressing the grievances of the 
 forest laws, but performed no great matter in that or any other point. It 
 is from his reign, however, that we are to date the introduction of the 
 Roman civil and canon laws into the realm of England ; and at the same 
 time, the absurd and pernicious doctrine of appeal to the court of Rome 
 was, during this usurpation, first imported as a branch of the canon law. 
 
 By the time of Henry II., if not earlier, the charter of Henry I. seems 
 to have been forgotten ; for we find the claim of marriage, ward, and re- 
 lief, then flourishing in full vigour. The right of primogeniture seems 
 also to have tacitly revived, being, as all God's institutions undoubtedly 
 are, found more convenient for the public than the parcelling of estates 
 into a multitude of minute subdivisions. However, in this prince's reign 
 much was done to methodize the laws, and reduce them into a regular 
 order j as appears from that excellent treatise of Glanvil, which, though 
 some of it be now antiquated and altered, yet, when compared with the 
 code of Henry I., it carries a manifest superiority. Throughout his reign 
 tlie important struggle between the laws of England and of Rome was con- 
 tinued, and which will be more fully noticed under our notice of "The Su- 
 preme Head of the Church ;" the former supported by the strength of the 
 temporal nobility, when endeavoured to be supplanted in favour of the latter 
 
248 RISE, PROGRESS, AND IMPROVExMENT 
 
 by the popish clergy : wliich dispute was kept on foot till the reign of Edward 
 I., when the laws of England, under the new discipline introduced by that 
 skilful commander, obtained a complete and permanent victory. In the 
 reign of Henry II., there are four things which particularly merit the at- 
 tention of a legal antiquarian. 1 . The constitutions of the parliament at 
 Clarendon in the year 1164, whereby the king checked the power of the 
 pope and his clergy, and greatly narrowed the total exemption which they 
 claimed from the secular jurisdiction ; though his further progress was 
 unhappily stopped by the fatal event of the disputes between him and arch- 
 bishop Becket. 2. The institution of the office of justices in eyre, m iti~ 
 nere; the king having divided the kingdom into six circuits (a little differ- 
 ent from the present), and commissioned these newly created judges to 
 administer justice and try writs of assize in the several counties. Tiiese 
 remedies are said to have been then first invented ; before which time all 
 causes were usually terminated in the county courts, according to the Saxon 
 custom ; or before the king's judiciaries in the aula regis, in pursuance of 
 the Norman regulations. The latter of which tribunals, travelling about 
 with the king's person, occasioned intolerable expense and delay to the 
 suitors ; and the former, however suitable for little debts and minute ac- 
 tions, where procrastination is a very great evil, were now become liable to 
 too much ignorance of the law, and too much partiality as to facts, to 
 determine matters of considerable moment. 3. The introduction and es- 
 tablishment of the grand assize, or trial by special kind of jury in a writ of 
 right, at the option of the tenant or defendant, instead of the barbarous 
 and Norman trial by battel. 4. To this time must also be referred the 
 introduction of escuage, or pecuniary commutation for personal military 
 service ; which, in process of time, was the parent of the ancient subsidies 
 granted to the crown by parliament, and the land-tax of later times. 
 
 Richard I., a brave and magnanimous prince, was a sportsman as well 
 as a soldier, and therefore enforced the forest laws with considerable ri- 
 gour, which occasioned many discontents among his people ; though, 
 according to Matthew Paris, he repealed the penalties of castration, loss 
 of eyes, and cutting off the hands and feet, before inflicted on such as 
 transgressed in hunting, probably finding that their severity prevented pro- 
 secutions. While abroad, he also composed a body of naval laws at the isle 
 of Oleron, which are still extant, and of high authority ; for in his time it 
 was again discovered, that, being insular, we were naturally a maritime 
 power. But with regard to civil proceedings, we find nothing very re- 
 markable in this reign, except a few regulations regarding the Jews, and 
 tlie justices in eyre, — this king's thoughts being chiefly taken up by the 
 absurd popish knight-errantry of a crusade against the Saracens in the 
 Holy Land. 
 
 In king John's time, and that of his son Henry III., the rigours of the 
 
OF THE LAW OF ENGLAND. 249 
 
 feudal tenures and the forest laws were so warmly kept up, that they oc- 
 casioned many insurrections of the barons or principal feudatories ; which 
 at last had this eifect, that king John first, and afterwards his son, con • 
 sen ted to the two famous charters of English liberties, magna charta and 
 carta deforesta. Of these, the latter was well calculated to redress many 
 grievances and encroachments of the crown in the exercise of forest law ; 
 and the former confirmed many liberties of the church, and redressed many 
 grievances incident to feudal tenures, of no small moment at the time, 
 though now, unless considered attentively and with retrospect, they seem 
 but of trifling concern. But besides these feudal provisions, care was also 
 taken therein to protect the subject against other oppressions, then fre- 
 quently arising from unreasonable amercements, from illegal distresses, or 
 other process for debts or services due to the crown, and from the tyran- 
 nical abuse of the prerogative of purveyance and pre-emption. It fixed 
 the forfeiture of lands for felony in the same manner as it still remains ; 
 prohibited, for the future, grants of exclusive fisheries, and the erection 
 of new bridges, so as to oppress the neighbourhood. With respect to pri- 
 vate rights, it established the testamentary power of the subject over part 
 of his personal estate, the rest being distributed among his wife and chil- 
 dren ; it laid down the law of dower as it has ever since continued ; and 
 prohibited the appeals of women, unless for the death of their husbands. 
 In matters of public police and national concern, it enjoined an uniformity 
 of weights and measures ; gave new encouragement to commerce, by the 
 protection of foreign mercliants j and forbade the alienation of lands in 
 mortmain. With regard to the administration of justice, besides prohibit- 
 ing all denials or delays of it, it fixed the court of common pleas at West- 
 minster, that the suitors might no longer be harassed by following the 
 king's person in all his progresses ; and at the same time brought the trial 
 of issues home to the very doors of the freeholders, by directing assizes to 
 be taken in the proper counties, and establishing annual circuits ; it also 
 corrected some abuses then incident to the trials by wager of law and of 
 battel ; directed the regular awarding of inquest for life or member ; pro- 
 hibited the king's inferior ministers from holding pleas of the crown, or 
 trying any criminal charge, whereby many forfeitures might otherwise have 
 unjustly accrued to the exchequer ; and regulated the time and place of 
 holding the inferior tribunals of justice, the county-court, sherifF-tourn, 
 and court-leet. It confirmed and established the liberties of the city of 
 London, and all other cities, boroughs, towns, and ports of the kingdom ; 
 and, lastly (which alone would have merited the title that it bears of the 
 Great Charter), it protected every individual of the nation in the free enjoy- 
 ment of his life, liberty, and property, unless the same should be declared 
 forfeited by the judgment of his peers, or the law of the land. We beg to 
 direct the attention of our readers to magna charta itself, a translation 
 
 2 1 
 
250 RISE, PROGRESS, AND IMPROVEMENT 
 
 of which we have given, page 33, with a few explanatory remarks pre- 
 ceding it. 
 
 By means of the rebellion of the barons, and the struggles in which the 
 king and the nation were engaged, the pope contrived to gain a still 
 greater ascendancy in England than he had ever enjoyed before, which 
 continued through the long reign of his son Henry III., in the beginning of 
 whose reign the old Saxon trial by ordeal was also totally abolished : and we 
 may by this time perceive in Bracton's treatise, a still farther improve- 
 ment in the method and regularity of the common law, especially in point 
 of pleadings.* Nor must it be forgotten, that the first traces which re- 
 main of the separation of the greater barons from the less, in the consti- 
 tution of parliaments, are found in the great charter of king John, though 
 omitted in that of Henry III., and that towards the end of the latter of 
 these reigns, we find thejirst record of any writ for summoning knights^ 
 citizens J and burgesses ^ to parliament. And here we conclude the second 
 period of English legal history. 
 
 III. The third period commences with the reign of Edward I., who has 
 justly been styled the English Justinian; for, in his time, the law received so 
 sudden a perfection, that Sir Matthew Hale does not scruple to affirm, that 
 more was done in tlie first thirteen years of the reign of that monarch to 
 settle and establish the distributive justice of the kingdom, than in all 
 the ages since that put together, until Sir Matthew's own time, f 
 
 It would be endless to enumerate all the particulars of these regulations : 
 but the principal may be reduced under the following general heads : — 
 1. He established, confirmed, and settled the great charter and charter of 
 forests. 2. He gave a mortal wound to the encroachments of the pope and 
 his clergy, by limiting and establishing the bounds of ecclesiastical jurisdic- 
 tion ; and by obliging the ordinary, to whom all the goods of intestates at 
 that time belonged, to discharge the debts of the deceased. 3. He defined 
 the limits of the several temporal courts of the highest jurisdiction — those 
 of the king's bench, common pleas, and exchequer, so as they might not 
 interfere with each other's proper business ; to do which they must now 
 have recourse to a fiction, very necessary and beneficial in the present en- 
 larged state of property. 4. He settled the boundaries of the inferior 
 courts in counties, hundreds, and manors ; confining them to causes of no 
 great amount, according to their primitive institution, though of considera- 
 bly greater than, by the alteration of the value of money, they are nowr 
 permitted to determine. 5. He secured the property of the subject, by 
 abolishing all arbitrary taxes and talliages, levied without consent of tlie 
 national council. 6. He guarded the common justice of the kingdom from 
 abuses, by giving up the royal prerogative of sending mandates to interfere 
 
 * Hallam's History, c. 156. - t Hallam's History. 
 
OF THE LA.W OF ENGLAND. 251 
 
 in private causes. 7. He settled the form, solemnities, and effect of fines, 
 levied in the court of common pleas, though the thing in itself was of 
 Saxon original. 8. He first established a repository for the public records 
 of the kingdom, few of which are of more ancient date than the reign of 
 his father ; and those were by him collected. 9. He improved upon the 
 laws of king Alfred, by the great and orderly method of watch and ward, 
 for preserving the public peace and preventing robberies, established by the 
 statute of Winchester. 10. He settled and reformed many abuses incident 
 to tenures, and removed some restraints on the alienation of landed pro- 
 perty by the statute of gw2a emp/ore.?. 11. He instituted a speedier way 
 for the recovery of debts, by granting execution, not only upon goods and 
 chattels, but also upon lands, by writ of eligit, which was of signal benefit 
 to a trading people ; and upon the same commercial ideas, he allowed the 
 charging of lands in a statute-merchant, to pay debts contracted in trade, 
 contrary to all feudal principles. 12. He effectually provided for the re- 
 covery of advowsons, as temporal rights in which, before, the law was 
 extremely deficient. 13. He also closed the greiat gulf in which all the 
 landed property in the kingdom was in danger of being swallowed, by his 
 reiterated statutes of mortmain, most admirably adapted to meet the frauds 
 that had then been devised, though afterwards contrived to be evaded by 
 the invention of uses. 14. He established a new limitation of property by 
 the creation of estates-tail ; concerning the good policy of which, however, 
 modern times have entertained a very different opinion. 15. He reduced 
 all Wales, not only to the subjection of the crown, but, in a great measure, 
 to the laws of England (which was thoroughly completed in the reign of 
 Henry VIII.), and he seems to have entertained the same design on Scot- 
 land, so as to have formed an entire and complete union of the island of 
 Great Britain. 
 
 This catalogue might be continued much farther j but, on the whole, 
 we may observe, that the very scheme and model of the administration of 
 common justice between party and party, was entirely settled by this king; 
 and has continued nearly the same, in all succeeding ages, to this day, 
 abating some few alterations which the humour or necessity of subsequent 
 times has occasioned.* The forms of writ by which actions are com- 
 menced, were perfected in his reign, and established as models for posterity. 
 The pleadings consequent upon the writs, were then short, nervous, and 
 perspicuous; not intricate, verbose, nor formal. The legal treatises written 
 in his time, as Britton, Fleta, Hengham, and the rest, are, for the most 
 part, law at this day ; or at least were so till the alteration of tenures took 
 place. And, to conclude, it is from this period, from the exact observa- 
 tion of magna charta, rather than from its making or renewal in the days 
 
 * Hallam's History. 
 
252 RISE, PROGRESS, AND IMPROVEMENT 
 
 of his grandfather and father, that the liberty of Englishmen began again 
 to rear its head ; though the weight of the military tenures hung heavily 
 upon it for many ages afterwards. 
 
 A better proof of the excellence of his institutions cannot be given, than 
 that from this time to that of Henry VIII., there happened very few 
 alterations in the legal forms of procedures, and these but very inconsider 
 able. As to matter of S7ibstance, the old Gothic powers of electing the 
 principal subordinate magistrates, the sheriffs, and conservators of the 
 peace, were taken from the people in the reigns of Edward II. and Edward 
 III., and, instead of the latter, justices of the peace were established. Also, 
 in the reign of Edward III. parliament is supposed most probably to have 
 assumed its present form, by a separation of the commons from the lords. 
 The statute for defining and ascertaining treasons was one of the first pro- 
 ductions of this new-modelled assembly, and the translation of the law 
 proceedings from French into Latin, another. Much also was done under 
 the auspices of this magnanimous prince, for establishing our domestic 
 manufactures, by prohibiting the exportation of English wool, and the 
 importation or the wearing of foreign cloths and furs ; and by encouraging 
 cloth workers from other countries to settle here. Nor was the legislature 
 inattentive to many other branches of commerce, or indeed to commerce in 
 general : for, in particular, it enlarged the credit of the merchant, by in- 
 troducing the statute-staple, whereby he might more readily pledge his 
 lands for the security of his mercantile debts. And as personal property 
 now grew, by the extension of trade, to be much more considerable than 
 formerly, care was taken, in case of intestacies, to appoint administrators, 
 particularly nominated by the law, to distribute that personal property 
 among the creditors and kindred of the deceased, which before had been 
 usually applied, by the ordinary's officers, to uses then denominated pious. 
 The statutes also oi prcemunire for effectually depressing the pope's civil 
 power, were the work of this and the subsequent reign. And the esta- 
 blishment of a laborious parochial clergy, by the endowment of vicarages 
 out of the overgrown possessions of the monasteries, added lustre to the 
 close of the fourteenth century, though the seeds of the general reforma- 
 tion which were thereby first sown in the kingdom, were almost overwhelmed 
 by the spirit of persecution, introduced into the laws of the land by the 
 influence of the regular (or monkish) clergy. 
 
 From this time to that of Henry VIII., the civil wars and disputed titles 
 to the crown, gave no leisure for further juridical improvements ; " nam 
 silent leges inter arma."" And yet it is to these very disputes and usurpa- 
 tions that we owe the happy loss of all the dominions of the crown in 
 France, which had the beneficial effect of turning the minds of subsequent 
 princes entirely to domestic concerns. To these, likewise, we owe the 
 method of barring entails by the fiction of common recoveries, invented 
 
OF THE LAW OF ENGLAND. 253 
 
 originally by the Romish clergy, to evade the statutes of mortmain, but 
 introduced under Edward IV. for the purpose of unfettering estates, and 
 making them more liable to forfeiture ; while, on the other hand, the 
 owners endeavoured to protect them by the universal establishment of iises, 
 — another of the popish inventions. 
 
 In the reign of Henry VII., his ministers, if not the king himself, were 
 more industrious in hunting out prosecutions upon old and forgotten penal 
 laws, in order to extort money from the subject, than in framing any new 
 beneficial regulations. For the distinguishing character of this reign was 
 that of amassing treasure in the king's coffers, by every means that could 
 be devised ; and almost every alteration in the laws, however salutary or 
 otherwise in their future consequences, had this and this only for their great 
 and immediate object. To this end the court of star-chamber was new-mo- 
 delled, and armed with powers the most dangerous and unconstitutional, 
 over both the persons and properties of the subject. Informations 
 were allowed to be received in lieu of indictments, at the assizes and sessions 
 of the peace, in order to multiply fines and pecuniary penalties. The sta- 
 tute of fines for landed property was craftily and covertly contrived to fa- 
 cilitate the destruction of entails, and make the owners of real estates more 
 capable to forfeit as well as to aliene. The benefit of clergy, which so 
 often intervened to stop attainders and save the inheritance, was now al- 
 lowed only once to lay oflTenders, who only could have inlieritances to lose. 
 A writ of capias was permitted in all actions on the case, and the defen- 
 dant might, in consequence, be outlawed; because, after such outlawry, 
 the goods became the property of the crown. In short, there is hardly a 
 statute in this reign, introductive of a new or modifying the old, but what 
 either directly or obliquely tended to the emolument of the exchequer. 
 
 IV. This brings us to the fourth period of the legal history of England, 
 viz. the Reformation of religion under Henry VIII. and his children, which, 
 in ecclesiastical matters, opens up an entirely new scene : the usurped 
 power of the pope being now, it is devoutly to be hoped, routed and de- 
 stroyed (unless the Roman Catholic relief bill of 1829 may pave the way 
 for his encroachments), all.his connexions with this island cut off, the crown 
 restored to its supremacy over the clergy and their causes, and tlie patro- 
 nage of bishoprics being once more indisputably vested in the king. And 
 if at this time the spiritual courts had been re-united to the civil, we 
 should have seen the old Saxon constitution, with regard to ecclesiastical 
 polity, completely restored.* 
 
 With regard also to our civil polity : the statute of wills, and the statute 
 of uses, both passed in the reign of this prince, made a great alteration as 
 to property ; the former allowing the devise of real estates by will, which 
 
 * See Art. Supremucy of the Croivn, 
 
254 RISE, PROGRESS, AND IMPROVEMENT 
 
 before was in general forbidden ; the latter, by endeavouring to destroy 
 the intricate nicety of uses, though the narrowness and pedantry of the 
 courts of common law prevented this statute from having its full beneficial 
 effect. And thence the courts of equity assumed a jurisdiction dictated 
 by common justice and common sense, which, however arbitrarily exercised, 
 or productive of jealousies in its infancy, has at length been matured into 
 a most elegant system of rational jurisprudence; the principles of which, 
 notwithstanding their difference of forms, are now equally adopted by the 
 courts both of law and equity. From the statute of uses, and another sta- 
 tute of the same antiquity (which protected estates for years from being 
 destroyed by the reversioner), a remarkable alteration took place in the 
 mode of conveyancing, the ancient assurance by feoffment, and living upon 
 the land being now very seldom practised ; since the more easy and more 
 private invention of transferring property, by secret conveyances, to uses 
 and long terms of years, being now continually created in mortgages and 
 family settlements, which may be moulded to a thousand useful purposes 
 by the ingenuity of an able artist. 
 
 The further attacks, in this reign, upon tlie immunity of estates-tail, 
 which reduced them to little more than the conditional fees at the com- 
 mon law before the passing of the statute de donis, the establishment of re- 
 cognizances in the nature of a statute-staple for facilitating the raising of 
 money upon landed security, and the introduction of the bankrupt laws, 
 as well for the punishment of the fraudulent, as the relief of the unfortu- 
 nate trader, — all these were capital alterations of our legal polity, and 
 highly convenient to that character which the English began about this 
 time to re-assume of a great commercial people. The incorporation of 
 Wales with England, and the more uniform administration of justice, by 
 destroying some counties palatine, and abridging the unreasonable privi- 
 leges of such as remained, added dignity and strength to the monarchy, 
 and, together with the numerous improvements before observed, and the 
 redress of many grievances and oppressions which had been introduced by 
 his father, will ever make the reign of Henry VIII. a very distinguished 
 era in the annals of juridical history. 
 
 It must, however, be remarked, that the royal prerogative was then, but 
 particularly in his latter years, strained to a very tyrannical and oppressive 
 height ; and what was the worst circumstance, its encroachments were es- 
 tablished by law, under the sanction of parliament, one of which passed a 
 statute enacting, that the king's proclamations should have the force of 
 acts of parliament ; and others concurred in the following heap of wild 
 and new-fangled treasons, invented in this reign : the offence of clipping 
 money ; breaking prison, or rescue, when the prisoner is committed for 
 treason ; burning houses to extort money ; stealing cattle by Welshmen ; 
 counterfeiting foreign coin ; wilful poisoning ; execrations against the king. 
 
OF THE LAW OF ENGLAND. 255 
 
 calling him opprobrious names by public writing ; counterfeiting the sign 
 manual or signet ; refusing to abjure the pope ; deflowering, or marrying 
 without the royal license, any of the king's children, sisters, aunts, nephews, 
 or nieces j bare solicitation of the chastity of the queen or princesses, or ad- 
 vances made by themselves ; marrying with the king, by a woman not a 
 virgin, without previously discovering to him such her unchaste life ; 
 judging or believing (manifested by any overt act) the king to have been 
 lawfully married to Anne of Cleves j derogating from the king's royal 
 style and title ; impugning his supremacy j and assembling riotously to 
 the number of twelve, and not dispersing on proclamation ; all which new- 
 fangled treasons were, however, totally abrogated by the statute of Mary,* 
 which once more reduced all treasons to the standard of the statute of 
 25 Edward III., since which time, though the legislature has been more 
 cautious in creating new offences of this kind, yet the number is very con- 
 siderably increased. Happily for the nation, his arbitrary reign was suc- 
 ceeded by the minority of- an amiable prince, during the short sunshine of 
 whose reign, great part of these extravagant laws were repealed. And to 
 do justice to the shorter and inglorious reign of bloody Mary, many salu- 
 tary and popular laws were made in civil matters under her administration, 
 — perhaps the better to reconcile the people to the persecuting measures 
 which she was induced to pursue for the re-establishment of religious slavery ; 
 the well- concerted schemes for effecting which, were, through the good 
 providence of God, defeated by her seasonable death, and the happy ac- 
 cession of Elizabeth. 
 
 The religious liberties of the nation being, by that happy event, esta- 
 blished — we sincerely hope on an eternal basis — though obliged, in their 
 infancy, to be guarded against papists and other non-conformists by laws 
 of too sanguinary a nature ; the forest laws having fallen into disuse, and 
 the administration of civil rights in the courts of justice being carried on 
 in a regular course, according to the wise institutions of king Edward I., 
 without any material innovations, all the principal grievances introduced 
 by the Norman conquest, seem to have been gradually shaken off, and the 
 Saxon constitution restored, with considerable improvements ; except only 
 in the continuation of the military tenures, and a few other points, which 
 still armed the crown with a prerogative that might be oppressive and dan- 
 gerous. It is also to be remarked, that the spirit of enriching the clergy, 
 and endowing religious houses, had, through its former abuse, gone to 
 such a contrary extreme, and the princes of the house of Tudor, and their 
 favourites, had fallen with such avidity upon the spoils of the church, that 
 a decent and honourable maintenance was wanting to many of the bishops 
 and clergy. This produced the restraining statutes, to prevent the aliena- 
 
 * Mary 1. c. 1. 
 
356 RISE, PROGRESS, AND IMPROVEMENT 
 
 tion of lands and tithes belonging to the church and universities. The 
 number of indigent persons being also increased, by withdrawing the alms 
 of the monasteries, a plan was formed in the reign of queen Elizabeth, 
 more humane and beneficial than even the feeding and clothing of millions, 
 by affording them the means, with their own industry, of feeding and 
 clothing themselves. And the further any subsequent plans for maintaining 
 the poor have departed from this institution, the more impracticable and 
 even pernicious their attempts have proved.* 
 
 Considering the reign of queen Elizabeth in an enlarged and political 
 view, we have no reason to regret many subsequent alterations in the pon- 
 stitution. For though, in general, she was a wise and excellent princess, 
 and loved her people ; though, in her time, trade flourished, riches in- 
 creased, the laws were duly administered, the nation was respected abroad, 
 and the people happy at home ; yet the increase of the power of the star- 
 chamber, and the erection of the high commission court in matters eccle- 
 siastical, were the work of her reign. She also kept her parliament at a 
 very awful distance ; and, in many instances, she carried the prerogative 
 as high as any of her most arbitrary predecessors. It is true she very sel- 
 dom exercised this prerogative so as to oppress individuals, but still she 
 possessed the power to exert it ; and therefore the felicity of her reign de- 
 pended more on her want of opportunity, than the want of either the power 
 or the inclination to play the tyrant. This is a high encomium on her 
 merit, but, at the same time, it is sufficient to show, that hers were not 
 those golden days of genuine liberty that we have been taught to believe. 
 
 The great revolutions that had happened both in manners and property, 
 had paved the way, by imperceptible yet sure degrees, for as great a revo- 
 lution in government ; yet, while that revolution was effecting, the crown 
 became more arbitrary than ever, by the progress of those very means 
 which afterwards contributed to reduce its power. It is obvious to every 
 observer, that, till the close of the Lancastrian civil wars, the property and 
 the power of the nation were chiefly divided between the king, the nobility, 
 and the clergy. The commons were generally in a state of great igno- 
 rance : before the extension of trade, their personal wealth was compara- 
 tively small J and the nature of their landed property was such as kept 
 them in continual dependence upon their feudal lord, who was usually 
 some powerful baron, some opulent abbot, or sometimes the king himself. 
 Though a notion of general liberty strongly pervaded and animated the 
 whole constitution, yet the particular and personal independence which we 
 now enjoy, was little regarded or thought of, and even to assert them, was 
 treated as sedition, if not rebellion. 
 
 But when, by the invention of printing, learning and the progress of 
 
 * For a full account of this institution, see article on Poor Laws. 
 
OF THE LAW OF ENGLAND. 257 
 
 rdiigious reformation began to be universally disseminated ; when trade 
 and navigation were suddenly carried to an amazing extent, by the use of 
 the compass and the consequent discoveries of the Indies, — men's minds, 
 being enlightened by science, and enlarged by observation and travel, began 
 to entertain juster ideas of their own weight in society, and of their rights 
 and privileges. An inundation of wealth flowed in upon the mercantile 
 and middling ranks ; while the two first estates of the kingdom, the nobi- 
 lity and clergy, which had formerly balanced the prerogative, were 
 greatly weakened and impoverished. The popish clergy, detected in 
 their frauds and abuses, exposed to the resentment of the populace, and 
 stripped of their lands and revenues, stood trembling for their very existence. 
 The nobles, enervated by the refinements of luxury (which are too apt to 
 be introduced by knowledge, foreign travel, and the progress of the politer 
 arts), and fired with disdain at being rivalled in magnificence by the opulent 
 citizens, fell into enormous expenses ; to gratify which, they were permit- 
 ted, by the policy of the times, to dissipate their overgrown estates, and 
 alienate their ancient patrimonies. This gradually reduced their power 
 and their influence within the bounds of moderation ; while, by the spoils 
 of the monasteries and the great increase of the customs, they grew rich, 
 independent, and haughty ; but the commons were not yet sensible of the 
 strength they had acquired through this silent change, which had gradually 
 taken place. Intent on acquiring new riches, and happy in being freed 
 from the insolence and tyranny of the orders more immediately above them, 
 they never dreamt of opposing the prerogative, much less of taking the 
 lead in opposition. The latter years, therefore, of Henry VIII., were the 
 times of the greatest despotism that had ever been known in this island 
 since the death of William the Conqueror. 
 
 Queen Elizabeth, and the intermediate princes of the house of Tudor, 
 had almost the same legal powers, and sometimes exerted them as roughly 
 as their father Henry VIII. But the critical situation of that princess 
 with regard to her legitimacy, her religion, her enmity with Spain, and 
 her jealousy of her cousin the queen of Scots, occasioned greater caution 
 in her conduct. She herself, or, at all events, her able advisers, had suffi- 
 cient penetration to discern how the power of the kingdom had gradually 
 shifted its channel, and wisdom enough not to provoke the commons to 
 discover and feel their strength. She therefore threw a veil over the 
 odious part of the prerogative, which was never wantonly drawn aside 
 except to answer some important purpose ; and though the royal treasury 
 no longer overflowed with the wealth of the clergy, which had been all 
 granted out and had contributed to enrich the people, she asked for sup- 
 plies with such moderation, and managed them with so much economy, 
 that the commons were happy in obliging her. Such, in short, were her 
 circumstances, her necessities, and her wisdom, that never did a prince be- 
 
 2 K 
 
258 RISE, PROGRESS, AND IMPROVEMENT 
 
 fore her, so long and so entirely, for the space of nearly half a century, 
 reign in the affections of her people. 
 
 James I., on his accession, neither added nor exercised any new degree 
 of royal power. The imprudent and sometimes unreasonable exertion of 
 the ancient and undoubted prerogatives of the crown, upon trivial and un- 
 important occasions, and the imprudent talking of prerogatives which 
 other princes before and since have silently exercised^ and also claiming an 
 absolute power which he had not the inclination to practise, together with the 
 religious fanaticism which began to work in his reign, roused the people 
 to resist the imputation of arbitrary power and that moderate authority 
 without which he could never have carried on his government, and they 
 gained some victories over the crown in cases of concealments, monopolies, 
 and the dispensing power. In the mean time, very little was done for the 
 improvement of private justice, except the abolition of sanctuaries, and the 
 extension of the bankrupt laws, the limitation of suits and actions, and the 
 regulating of informations upon penal statutes. 
 
 The unfortunate Charles I. had been educated in higher notions of the 
 royal prerogative than were agreeable to the popular notion then fast gain- 
 ing ground, and he began his reign in conformity. His parliaments refus- 
 ing to grant supplies, he was compelled to exert the obsolete prerogatives 
 of the crown in order to raise money for carrying on a war in which he 
 found himself involved at his succession. He, however, consented to the 
 petition of right which was expressly enacted to abolish several of the pre- 
 rogatives, which he had carried higher than his predecessors, owing to the 
 difficulties in which the refusal of the commons to grant supplies had com- 
 pelled him, for the ordinary expenses of the government, to resort, such as 
 the levies of tonnage and poundage, ship money,* and some others, all 
 which the king redressed in a constitutional way in parliament, before the 
 rebellion broke out, by the several statutes for triennial parliaments j for 
 abolishing the star-chamber and high commission courts ; for ascertaining 
 the extent of the forests and forest laws ; for renouncing ship money and 
 other exactions ; and for giving up the prerogative of knighting the king's 
 
 * Ship money was an imposition, charged upon the ports, towns, cities, boroughs, and 
 counties of'England, by writs commonly called ship-writs, under the great seal of England, 
 in the years 1635 and 1636, for providing and furnishing certain ships for the king's ser- 
 vice ; and for which they were allowed to compound for an equivalent in money, which was 
 in fact all that the king wanted, to which shift he was driven by the commons refusing to 
 vote supplies. In order to give this unusual mode of raising money a legal qualification, 
 Charles required the opinions of the twelve judges, who solemnly decided that it was legal 
 and constitutional. Those who had before complied with this unconstitutional requisition as 
 &free gift, or benevolence, to assist the king in his distress, now refused to grant it as a 
 matter of right, which might become a permanent assessment and a grievous burden on the 
 nation. It was accordingly moved in parliament, and the king consented to the act, de- 
 claring "it to be contrary to the laws and statutes of this realm, the petition of right, and 
 liberty of the subject."— 17 Char. I., c. 14. 
 
OF THE LAW OF ENGLAND. 259 
 
 tenants in capite, in consequence of their feudal tenures : these concessions 
 stimulated the people to demand more and greater concessions, rather 
 than satisfied them ; and as the king found that there was a point at which 
 concession must stop, the people became irritable, and being wrought on 
 by the arts of the king's enemies, they believed him to be insincere — a 
 great misfortune for a magnanimous prince ; he was, besides, betrayed by 
 his councillors and ministers ; and the parliamentary leaders joining the 
 military, which was in a state of open rebellion against the crown, and in- 
 flamed with religious animosity and fanaticism, overturned both the esta- 
 blished church and the monarchy, and, after a mock trial, murdered their 
 amiable and unfortunate king. 
 
 V. It is unnecessary to revert to the period of the commonwealth which 
 followed the grand rebellion, because nothing was done in ameliorating the 
 feudal tenures till the restoration of Charles II., immediately on which, the 
 principal remaining grievance — the doctrine and consequences of military 
 tenures — was taken away and abolished, except in the instance of corrup- 
 tion of inheritable blood on the attainder of treason and felony, by the act 
 12 Car. II. c. 24, — " Whereas, &c. 1. That the courts of wards and 
 liveries, and all wardships, liveries, primer seisins, and ousterlemains, va- 
 lues and forfeitures of marriage by reason of any tenure of the king's 
 majesty, or of any other by knights-service, and all mean rates, and all 
 other gifts, grants, charges incident or arising for, or by reason of, ward- 
 ships, &c., be taken away and discharged. And that all fines for aliena- 
 tions, seizures, and pardons for alienations, tenure by homage, and all 
 charges incident or arising for or by reason of wardship, livery, primer 
 seisin, or ousterlemain, or tenure by knights-service, escuage, &c., and all 
 other charges incident thereto, be likewise taken away and discharged. 
 And that all tenures by knights-service of the king, or of any other per- 
 son, and by knights-service i?i capite, and by soccage in capite of the king, 
 and the fruits and consequents thereof, be taken away and discharged. 
 And all tenures of any honours, manors, lands, tenements, or heredita- 
 ments, or any estate of any inheritance at the common law, held either of 
 the king, or of any other person, or bodies politic or corporate, are 
 hereby enacted to be turned into free and common soccage. 2. And that 
 the same shall for ever hereafter stand and be discharged of all tenure by ho- 
 mage, escuage, voyages royal, and charges for the same, wardships incident 
 to tenure by knights- service, and values and forfeitures of marriage, and 
 all other charges incident to tenure by knights-service, &c., and that all 
 conveyances and devises of any manors, lands, tenements, and heredita- 
 ments, shall be expounded to be of such effect as if the same manors, lands, 
 tenements, and hereditaments had been then held and continued to be 
 holden in free and common soccage only. 11. Provided that neither this 
 act, nor any thing therein contained, shall infringe or hurt any titJe of ho- 
 
260 RISE, PROGRESS, AND IMPROVEMENT 
 
 nour, feudal or other, by which any person hath or may have riglit to sit 
 in the lords' house of parliament, as to his or their title of honour or sit- 
 ting in parliament, and the privilege belonging to them as peers. 12. His 
 majesty is therefore graciously pleased that it may be enacted, that 
 from henceforth no sum or sums of money or other thing shall be taken, 
 raised, taxed, rated, imposed, paid, or levied for, or in regard of any pro- 
 vision, carriages, or purveyance for his majesty, his heirs, or successors. 
 14. No pre-emption shall be allowed or claimed in behalf of his majesty, 
 or any of his heirs or successors, or of any of the queens of England, or of 
 any of the children of the royal family for the time being, in market or 
 out of market ; but that it be for ever hereafter free to all and any of his 
 majesty's subjects to sell, dispose, or employ his said goods to any other 
 person or persons as himself listeth, any pretence of making provision or 
 purveyance of victual, carriages, or other things for their majesties, &c., 
 or any pretence of pre-emption in their or any of their behalfs notwith- 
 standing." 
 
 Charles II. not only restored the English church and monarchy, but, by 
 a concurrence of happy circumstances, English liberty was completely es- 
 tablished upon a firm basis for the first time since its total abolition by 
 William the Conqueror. For not only all these slavish tenures, with all their 
 oppressive appendages, the badge of foreign dominion, were removed from 
 encumbering the estates of the subject ; but he also conferred an addition- 
 al security to the person of the subject from imprisonment, by that great 
 bulwark of the constitution, the habeas corpus act. These two statutes, 
 with respect of properties and persons, form a second magna charta, inore 
 beneficial and effectual than that of Runnimede. King John's unwilling- 
 ly conceded act, merely pruned some of the luxuriances of the feudal sys- 
 tem J but king Charles's willingly bestowed charter, extirpated all the slavery 
 and bondage of the Norman conqueror : the former only relieved the 
 nobility, and was of no service to the great mass of the people ; but the 
 latter made the people essentially free and independent, and they are in- 
 debted for this, to the patriotic act of a native prince, of a family that it 
 has been too much the custom to revile. Magna Charta only declared in 
 general terms, that no man shall be imprisoned contrary to law ; but the 
 habeas corpus act, points out the effectual means, as well to release him- 
 self, as to punish all those who shall thus unconstitutionally misuse him. 
 
 To these may be added the statutes * for holding triennial parliaments ; 
 the test and corporation acts, which secured both civil and religious liberty ; 
 the abolition of the writ, de hceretico comburendo ; f the statutes of frauds 
 and perjuries — a great and necessary security to private property ; the 
 statute for the distribution of the estates of intestates, and that of amend- 
 
 * 16 Car. II., c. 1. f 29 Car. II., 10.— 29 Car. II., 3. 
 
OF THE LAW OF ENGLAND. 261 
 
 ments and jeofails, which cut off those superfluous niceties which had so 
 long disgraced the courts of law, together with many other wholesome acts 
 that were passed in this reign, for the benefit of navigation, and the im- 
 provement of foreign commerce ;* and, when we likewise consider the free- 
 dom from taxes and armies which the subject then enjoyed, the whole will be 
 sufficient to demonstrate this truth, " that the constitution of England had 
 arrived to its full vigour, and the true balance between liberty and prero- 
 gative, was happily established by law, in the reign of king Charles II." 
 And what, says Blackstone, seems incontestible, is this, that by the law, 
 after the habeas corpus act was passed in the year 1679, and that for licensing 
 the press had expired, the people had as large a share of real liberty, as is 
 consistent with a state of society ; and sufficient power residing in their 
 own hands, to assert and preserve that liberty, if invaded by the royal pre- 
 rogative. For which it is only necessary to appeal to the memorable ca- 
 tastrophe of the following reign ; for when king Charles's deluded bro- 
 ther attempted to enslave the nation, by introducing popery and arbitrary 
 power, he found it impossible. James attempted to supersede the laws by 
 his royal proclamation, which he commanded his bishops to require their 
 clergy to read from their pulpits. Against which, seven bishops peti- 
 tioned the king, as being unconstitutional and illegal, whereupon he commit- 
 ed them to the Tower, and they were afterwards tried on a charge of se- 
 dition : they were honourably acquitted, and to them is the nation indebted 
 for the preservation of our liberties. Several other arbitrary acts, with the 
 avowed intention of restoring the pope's supremacy, precipitated the Re- 
 volution ; and the kingdom being invaded by a foreign force, under his son- 
 in-law the prince of Orange, James abdicated the throne of his ancestors, 
 and in a convention of the three estates of the realm, it was declared to be 
 
 VACANT. 
 
 VI. From the Revolution in 1688, to the present time. In 
 which period many important laws have been both enacted and repealed : as 
 the Bill of Rights, already given ; the Toleration Act, which will be more 
 particularly noticed under the article on the Dissenters ; the Act of Settle- 
 ment, with its conditions; and the following Act of Union between the king- 
 doms of England and Scotland. 
 
 * 22 & 23 Car. IL, Citp. 10. 
 
863 RISE, PROGRESS, AND IMPROVEMExNT 
 
 ARTICLES OF UNION BETWEEN THE KINGDOMS OF 
 ENGLAND AND SCOTLAND, 
 
 Ratified at London on the 22nd January, in the year 1707. 
 
 Most Gracious Sovereign, — Whereas, articles of Union were agreed on, the 22nd day 
 of Januar}', in the fifth year of your majesty's reign, by the commissioners nominated on 
 behalf of the kingdom of England under your majesty's great seal of England, bearing date 
 at Westminster, the 10th of April, then last past, in pursuance of an act of parliament 
 made in England in the third year of your majesty's reign, and the commissioners nominat- 
 ed on behalf of the kingdom of Scotland, under your majesty's great seal of Scotland, bearing 
 date the 27th day of February, in the fourth year of 50ur majesty's reign, in pursuance of 
 the 4ith act of the 3d session of the present parliament of Scotland, to treat of, and concerning 
 an union of the said kingdoms : and whereas, an act hath passed in the parliament of Scotland, 
 at Edinburgh, the 16th day of January, in the fifth year of your majesty's reign ; where- 
 in it is mentioned, that the estates of parliament considering the said articles of union of the 
 two kingdoms, had agreed to, and approved of, the said articles of union, with some additions 
 and explanations ; and that your majesty, with the advice and consent of the estates of parlia- 
 ment, for establishing the protestant religion, and presbyterian church government within 
 the kingdom of Scotland, had passed in the same session of parliament, an act intituled " An 
 act for the securing of the protestant religion and presbyterian church government," which 
 by the tenor thereof was appointed to be inserted in any act ratifying the treaty, and ex- 
 pressly declared to be a fundamental and essential condition of the said treaty of Union, in all 
 time coming ; the tenor of which articles, as ratified and approved of, with additions and ex- 
 planations by the said act of parliament of Scotland, follows : — 
 
 Article I. That the two kingdoms of England and Scotland shall, upon the first day of 
 May, which shall be in the year 1707, and for ever after, be united into one kingdom, by the 
 name of Great Britain, and that the ensigns armorial of the said united kingdom, be such 
 as her majesty shall appoint, and the crosses of St George and St Andrew be conjoined in 
 such manner as her majesty shall think fit ; and used in all flags, banners, standards, and 
 ensigns, both at sea and land. 
 
 II. That the succession of the monarchy to the united kingdom of Great Britain, and 
 of the dominions thereunto belonging, after her most sacred majesty, and in default of issue 
 of her majesty, be, remain, and continue to the most excellent princess Sophia, electress 
 and duchess-dowager of Hanover, and the heirs of her body being protestants, upon whom 
 the crown of England is settled by an act of parliament, made in England in the 12th year 
 of the reign of his late majesty king William III., entituled " An act for the further limi- 
 tation of the Crown, and better securing the rights and liberties of the subject :" and that all 
 papists, and persons marrjing papists, shall be excluded from, and for ever incapable to in- 
 herit, possess, or enjoy the imperial crown of Great Britain, and the dominions thereunto be- 
 longing, or any part thereof; and in every such case the crown and government, shall from 
 time to time descend to, and be enjoyed by, such persons, being protestants, as should have in- 
 herited and enjoyed in case such papist, or person marrying a papist, was naturally dead, ac- 
 cording to the provision for the descent of the crown of England, made by another act of par- 
 liament in England, in the first year of the reign of their late majesties, king William and 
 queen Mary, intituled " An Act declaring the rights and liberties of the subject, and settling 
 tlie succession of the crown. " 
 
 III. That the united kingdom of Great Britain, be represented by one and the same 
 parliament, to be stiled the parliament of Great Britain. 
 
 IV. Provides for the full freedom and intercourse of trade and navigation, with a com- 
 munication of all other rights, privileges, and advantages which do or may belong to the sub- 
 jects of either kingdom ; except where it is otherwise expressly agreed in these articles. 
 
 V. That all ships or vessels belonging to her majesty's subjects of Scotland, at the time of 
 ratifying the treaty of union of the two kingdoms in the parliament of Scotland, be deemed 
 and pass as ships of the build of Great Britain. 
 
OF THE LAW OF ENGLAND. 263 
 
 VL That all parts of the united kingdom for ever, from and after the union, shall have 
 the same allowances, encouragements, and drawbaclis, and be under the same prohibitions, 
 resti-ictions, and regulations of trade, and liable to the same customs, and duties on import and 
 export; excepting the private rights of individuals in particular cases of either kingdom. 
 Scottish cattle carried into England, shall not be liable to any other duties, either on public or 
 private account, than those duties to which the cattle of England are, or shall ever be liable 
 within the said kingdom. 
 
 Vn. That all pai-tsof the united kingdom, be for ever liable to the same excises upon all 
 exciseable liquors, excepting only in the article of beer or ale. 
 
 VIII. That from and after the union, all foreign salt which shall be imported into Scot- 
 land, shall be charged at the importation there, with the same duties as the like salt is now 
 charged with being imported into England, and to be levied and secured in the same man- 
 ner. But Scotland shall, for the space of seven years from the said union, be exempted from 
 paying in Scotland, for salt made there, the duty or excise for salt now made in England. 
 
 IX. That whensoever the sum of £1,997,763 : 8 : 41 shall be enacted by the parliament 
 of Great Britain, to be raised in that part of the united kingdom now called England, on 
 land and other things usually charged in acts of parliament there, for granting an aid to the 
 crown by a land tax, that part of the united kingdom now called Scotland, shall be charged 
 by the same act, with a further sum of £48,000, free of all charges, as the quota for 
 Scotland to such tax ; and so proportionally for any greater or lesser sum. 
 
 X. That Scotland shall not be charged with the then existing duties on stamped paper, 
 vellum, and parchment. 
 
 XI. That Scotland shall not be charged with the then existing duties on windows and 
 lights. 
 
 XII. That Scotland shall not be charged with the duties then charged in England on coals, 
 culm, and cinders. 
 
 XIII. That Scotland shall not be charged with the duties then charged in England on 
 malt. 
 
 XIV. Provides, that there sliall be no further exemption insisted upon for any part of the 
 united kingdom, but that the consideration of any exemptions shall be left to the determina- 
 tion of the parliament of Great Britain. 
 
 XV. Provides equivalents for any losses which private persons may sustain by reducing 
 the coin of Scotland to the standard value of the coin of England : for the capital stock of the 
 African and India company of Scotland. That all public debts of the kingdom of Scotland, 
 as shall be adjusted by this present parliament, shall be paid. And that £2000 per annum, 
 for the space of seven years, shall be applied towards encouraging and promoting the manu- 
 facture of coarse wool within those shires that produce the wool-, and afterwards the same 
 shall be wholly applied towards the encouraging and promoting the fisheries, and such other 
 manufactures and improvements in Scotland as may most conduce to the general good of 
 the united kingdom. 
 
 XVI. That from and after the union, the coin shall be of the same standard value, 
 throughout the united kingdom, as now in England, and a mint shall be continued in Scot- 
 land under the same rules as the mint in England. 
 
 XVII. That the same weights and measures shall be used throughout the united king- 
 dom as are now established in England ; and standard weights and measures shall be kept by 
 those boroughs in Scotland, to whom the keeping standards of weights and measures now in 
 use there, does of special right belong. 
 
 XVIII. That the laws concerning the regulation of trade, customs, and such excises to 
 which Scotland is by virtue of this treaty to be liable, be the same in Scotland, from and after 
 the union, as in England. 
 
 XIX. That the court of session or college of justice, do after the union, remain in all 
 time coming within Scotland, as it is now constituted by the laws of that kingdom, and with 
 the same authority and privileges as before the union ; subject, nevertheless, to such regulations, 
 for the better administration of justice, as shall be made by the parliament of Great Britain; 
 and that hereafter none shall be named by her majesty to be ordinary lords of session, but 
 such who have served in tiie college of justice, as advocates, or principal clerks of session, for 
 
264 RISE, PROGRESS, AND IMPROVEMENT 
 
 the space of five years ; or as writers to the signet for the space of ten years. All admiralty 
 jurisdictions be under the lord high admiral, or commissioners for the admiralty of Great 
 Britain, for the time being; and the court of admiralty now established in Scotland be con- 
 tinued. And all other courts now in being within the kingdom of Scotland do remain, but 
 subject to alterations by the parliament of Great Britain ; and that all inferior courts within 
 the said limits do remain subordinate as they now are, to the supreme courts of justice with- 
 in the same, in all time coming ; and that no causes in Scotland be cognisable by the courts 
 of chancery, queen's bench, common pleas, or any other court in Westminster hall ; and 
 that the said courts, or any other of the like nature, after the union, shall have no power to 
 cognosce, review, or alter the sentences of the judicatures within Scotland, or stop the execu- 
 tion of the same ; and that there be a court of exchequer in Scotland, for deciding questions 
 concerning the revenues of customs and excises there, having the same power as the court of 
 ■ exchequer in England ; and that after the union, the queen's majesty, and her rojal succes- 
 sors, may continue a privy council in Scotland, for preserving of public peace and order, until 
 the parliament of Great Britain shall think fit to alter it. 
 
 XX. That all heritable offices, superiorities, heritable jurisdictions, offices for life, and jur- 
 isdictions for life,- be reserved to the owners thereof as rights of property. 
 
 XXI. That the rights and privileges of royal burghs in Scotland, as they now are, do re- 
 main entire after the union. 
 
 XXII. That by virtue of this treaty, of the peers of Scotland at the time of the union, 
 sixteen shall be the number to sit and vote in the house of lords, and forty-five the number 
 of the representatives of Scotland in the house of commons of the parliament of Great Bri- 
 tain. 
 
 XXIII. That the sixteen peers of Scotland shall have all the privileges of parliament 
 which the peers of England now have, and particularly the right of sitting upon the trial of 
 peers; and tliat all peers of Scotland and their successors to their honours and dignities, shall 
 after the union be peers of Great Britain, and have rank and precedency next and imme- 
 diately after the peers of the like orders and degrees in England, at the time of tlie union, and 
 before all peers of Great Britain of the like orders and degrees who may be created after the 
 union. 
 
 XXI V. That there be one great seal for the united kingdom of Great Britain, which 
 shall be difterent from the great seal now used in either kingdom : and the said seal, and all 
 of them, and the keepers of them, shall be subject to such regulations as the parliament of 
 Great Britain shall hereafter make. And that the cro\vn, sceptre, and sword of state, the re- 
 cords of parliament, and all other records, rolls, and registers whatsoever, both public and 
 private, general and particular, and warrants thereof, continue to be kept as they are 
 within that part of the united kingdom called Scotland : and that they shall remain in all 
 time coming. 
 
 XXV. That all laws and statutes in either kingdom, so far as they are contrary to, or in- 
 consistent with the terms of these articles or any of them, shall cease and become void. Thai 
 the commissioners for the treaty of union shall not treat of or concerning any alteration of 
 the worship, discipline, and government of the church of the kingdom of Scotland, as now by 
 law established : and it being reasonable and necessary that the true protestant religion, as 
 presently professed within this kingdom, with the worship, discipline, and government of 
 this church (of Scotland), should be effectually and unalterably secured : therefore, her 
 majesty, with the advice and consent of the said estates of parliament, doth hereby confirm 
 and establish the said true protestant religion, and the worship, discipline, and government 
 of the church of Scotland, to continue without any alteration, to the people of this land in all 
 succeeding generations ; and her majesty expressly provides and declares, that the true pro- 
 testant religion contained in the Confession of Faith, with the form and purity of worship at 
 present in use within that church by kirk sessions, presbyteries, provincial synods, and general 
 assemblies, all established by stat. W. and M. 5, and that the said presbyterian government 
 shall be the only government of the church within the kingdom of Scotland. And her 
 majesty statutes and ordains, that in all time coming, no professors, &c., or others bearing of- 
 fice in any university, college, or school, be capable to be admitted, or allowed to continue 
 in the exercise of their said functions, but such as shall own and acknowledge the civil go- 
 
OP THE LAW OF ENGLAND. 265 
 
 vernnient in manner prescribed by the acts of parliament : as, also, that before or at thtir 
 admissions, they do, and shall acknowledge, and profess, and shall subscribe to, the foresaid 
 Confession of Faith, as the confession of their faith, aj*l that they will practise and conform 
 themselves to the worship presently in use in this church, and submit themselves to the dis- 
 cipline and government thereof, and never endeavour, directly or indirectly, the prejudice 
 or subversion of the same ; and that before the respective presbyteries of their bounds, by 
 whatsoever gift, presentation, or provision they may be thereto provided. And her ma- 
 jesty expressly declares and statutes, that none of the subjects of the kingdom of Scotland 
 shall be liable to, but all and every one of them for ever free of any oatli, test, or subscription 
 , within this kingdom, contrary to, or inconsistent with the aforesaid true protestant religion 
 and presbyterian church government, worship, and discipline, as above established ; and that 
 the same, within the bounds of this church and kingdom, shall never be imposed or required 
 of them in any sort. And, lastly, that after the decease of her present majesty, the sovereign 
 succeeding to her in the royal government of the kingdom of Great Britain, shall in all time 
 coming, at his, or her accession to the throne, swear and subscribe, that they shall inviolably 
 maintain and preserve the aforesaid settlement of the true protestant religion with the go- 
 vernment, worship, discipline, rights, and privileges of this church (of Scotland), as above es- 
 tablished by the laws of this kingdom, in prosecution of the claim of right. 
 
 That the commissioners shall not treat of, or concerning any alteration of the liturgy, 
 rites, ceremonies, discipline, or government of the church, as by law established within this 
 realm (of England). And whereas, it is reasonable and necessary, that the true protestant re- 
 ligion professed and established by law in the church of England, and the doctrine, worship, 
 discipline, and government thereof, should be effectually and unalterably secured ; be it en- 
 acted, &c. that the act 13 Eliz. entituled " An act for the ministers of the church to be of sound 
 religion ;" and also the act 13 Car. II., entituled *« An act for the uniformity of the pub- 
 lic prayers, and administration of the sacraments and other rites and ceremonies, and for esta- 
 blishing the form of making, ordaining, and consecrating bishops, priests, and deacons, in the 
 church of England:" and all and singular other acts of parliament now in force, for the es- 
 tablishment and preservation of the church of England, and the doctrine, worship, discipline, 
 and government thereof, shall remain and be in full force for ever. 
 
 And be it further enacted, that after the demise of her majesty, the sovereign next suc- 
 ceeding to her majesty in the royal government of the united kingdom of Great Britain, and 
 so for ever after, any king or queen succeeding and coming to the ro^al government of the 
 kingdom of Great Britain, at his or her coronation, shall, in the presence of all persons who 
 shall be attending, assisting, or otherwise then and there present, take and subscribe an oath, 
 to maintain and preserve inviolably the said settlement of the church of England, and the 
 doctrine, worship, discipline, and government thereof, as by law established within the king- 
 dom of England and Ireland, the dominion of Wales, and town of Berwick-upon-Tweed, 
 and the territories thereunto belonging. 
 
 And be it further enacted, that the act of parliament of Scotland, as before mentioned, 
 for establishing the protestant religion and presbyterian church government within tha^ 
 kingdom, entituled, " An act for securing the protestant religion and presbyterian church 
 government," and every clause, matter, and thing in the said articles and act contained, shall 
 be for ever ratified, approved, and confirmed. 
 
 And it is hereby further enacted by the authority aforesaid, that the act passed in this 
 present session of parliament, entituled " An act for securing the church of England as by 
 law established," and all and every the matters and things therein contained, and also the 
 act of the parliament of Scotland, intituled "An act for securing the protestant religion and 
 presbyterian church government," be, and shall for ever be held and adjudged to be, and ob- 
 served as fundamental and essential conditions of the said union •, and shall in all time com- 
 ing be fciken to be, and are hereby declared to be, essential and fundamental parts of the said 
 articles and union: and the said articles of union so as aforesaid, ratified, approved, and con- 
 firmed by act of parliament of Scotland, and by this present act, and the said ait passed in 
 this present session of parliament, intituled " An act for securing the church of England as 
 by law established," and also the said act passed in the parliament of Scotland, entituled " An 
 act for securing the protestant religion and presb} terian church government," arehirtb} 
 
 2L 
 
266 RisE^ PROGRESS AND IMPROVEMENT 
 
 enacted and ordained to be, and continue in all times coming, the complete and entire union 
 of the two kingdoms of England and Scotland. 
 
 Several of these acts have more clearly and emphatically asserted our 
 liberties ; have regulated the succession of the crown by parliament, as the 
 exigences of religious and civil freedom have required ; have pronounced 
 the king's dispensing powers to be illegal ; have indulged tender consciences 
 with every religious liberty, consistent with the safety of the state ; have 
 established septennial elections of members to serve in parliament ; have 
 excluded certain officers from the house of commons ; have restrained the 
 king's pardon from obstructing the parliamentary impeachments of corrupt 
 ministers j have imparted to all the lords, the right of trying their fellow 
 peers j have regulated .trials for high treason j have afforded our posteri- 
 ty a hope that corruption of blood may one day be abolished and forgot- 
 ten ; have, by the king's desire, set bounds to the civil list, and 
 placed the administration of that revenue in hands that are accountable to 
 parliament ; and have, by the like desire, made the judges completely in- 
 dependent of the king, his ministers, and his successors. Yet though these 
 provisions have nominally and in appearance, conceded too much of the 
 prerogative, and reduced the strength of the executive power to a much 
 lower ebb than in any of the preceding periods ; if, on the other hand, we 
 throw into the opposite scale, what the immoderate reduction of the an- 
 cient prerogative of the crown has rendered necessary, the vast acquisition 
 of force arising from the riot act, and the indispensable expedience of a 
 standing army ; and the vast acquisition of personal attachment, arising 
 from the magnitude of the national debt ; and the manner of levying those 
 millions which are annually appropriated to pay the interest, we shall find 
 that the crown has gradually, and imperceptibly gained almost as much 
 influence as it has apparently lost in prerogative. 
 
 It is impossible, within our limits, to enter into minute particulars, and 
 therefore we can only notice alterations of moment in the administration 
 of private justice during this period ; which are, the solemn recognition of 
 the law of nations, with respect to the rights of ambassadors : for the 
 amendment of the law, the cutting off by statute of a vast number of ex- 
 crescences, that in process of time had sprung out of its practical part : the 
 prostitution of corporate rights by the improvement in writs of mandamus, 
 and informations in the nature of a quo warranto: the regulation of trials 
 by jury, and admitting witnesses for prisoners on oath : the further re- 
 straints upon alienation of laws in mortmain : the annihilation of the ter- 
 rible judgment oi peine jort et dure : the extension of benefit of clergy, by 
 abolishing the pedantic criterion of reading : the counterbalance to this 
 mercy, by the vast increase of capital punishment : the new and effectual 
 methods for the speedy recovery of rents: the improvements that have 
 
OF THE LAW OF ENGLAND. 267 
 
 been made in ejectments, for the trying of titles : the introduction and es- 
 tablishment of paper credit, by indorsements upon bills and notes, which 
 have shown the legal possibility and convenience of which our ancestors 
 so long doubted, of assigning a chose in acliofi : the translation of all legal 
 proceedings into the English language : the erection of courts of con- 
 science for recovering small debts, and the reformation of country courts : 
 the great system of marine jurisprudence have been laid, by clearly develop- 
 ing the principles on which policies of insurance are founded, and by happi- 
 ly applying those principles to particular cases : and lastly, the liberality of 
 sentiment, which has now taken possession of our courts of common law 
 and induced them to adopt, wherever the facts can be clearly ascertained, 
 the same principles of redress as have prevailed in the courts of equity, from 
 tlie time that lord Nottingham presided there : and this, not only where 
 specially empowered by particular statutes, (as in the case of bonds, mort- 
 gages, and set offs,) but by extending the remedial influence of the equit- 
 able writ of trespass on the case, according to its primitive institution by 
 king Edward I., to almost every instance of injustice, not remedied by any 
 other process. 
 
 In the reign of George III. the severe laws against the members of the 
 church of Rome, were considerably softened, and some of them entirely 
 repealed, and the full toleration of religious worship to every denomina- 
 tion of Christians was secured : the total abolition of the slave trade, char- 
 acterise that prince's reign, as the era of practical liberality and freedom. In 
 this reign, the act for the union of Great Britain and Ireland was passed 
 on the 2d July, 1800, and is as follows : — 
 
 I. The united kingdom shall be represented by one parliament, sfjled "the parliament 
 of the united kingdom of Great Britain and Ireland," from and after 1st January, 1801; and 
 the royal style and titles belonging to the imperial crown of such united kingdom and its de- 
 pendencies, and the ensigns, armorial flags and banners thereof, shall be such as his majesty, 
 by roj'al proclamation, under the great seal of the united kingdom, shall appoint. 
 
 II. The succession to the crown of the united kingdom, and the dominions thereunto be- 
 longing, shall continue, as settled by the existing laws, and the terms of union between Eng- 
 land and Scotland. 
 
 III. The said united kingdom shall be represented in one and the same parliament, to 
 be styled *' the parliament of the united kingdom of Great Britain and Ireland." 
 
 IV. Four lords spiritual of Ireland, by rotation of sessions, and twenty-eight lords tempo- 
 nil of Ireland, elected for life by the peers of Ireland, shall be the number to sit and vote on the 
 part of Ireland, in the house of lords ; and one hundred commoners shall be the number to sit 
 and vote on the part of Ireland, in the house of commons of the united kingdom. * The 
 lords of parliament, on the part of Ireland, sliall have the same privileges as the lords on 
 the part of Great Britain : and the lords spiritual of Ireland shall have rank next after the 
 lords spiritual of the same rank of Great Britain, and shall enjoy the same privileges (ex- 
 cept those depending upon sitting in the house of lords) ; and the temporal peers of Ireland, 
 at the time of the union, shall have rank next after the peers of the like rank in Great Bri- 
 tain, and all peerages of Ireland, and of the united kingdom, created after the union, shall have 
 rank according to creation : and all the peerages of Great Britain and of Ireland shall, iii 
 
 * For the present number of the Members, see the Reform Bill for Ireland. 
 
268 RISE, PROGRESS, AND IMPROVEMENT 
 
 ali other respects, be considered as peerages of the united kingdom : and the peers of Ireland 
 sliall enjoy all privileges, except those depending upon sitting in the house of lords. 
 
 v. The churches of England and Ireland, as now by law established, shall be united into 
 one protestant episcopal church, called the united church of England and Ireland, and 
 the doctrine, worship, discipline, and government of which united church, shall remain in full 
 force for ever, and be as now by law established ; for the church of England, and its continu- 
 ance shall be deemed an essential and fundamental part of the union ; and in like manner, 
 the doctrine, &c. of the church of Scotland, shall remain as now by law and by the acts of 
 union established. 
 
 VI. His majesty's subjects of Great Britain and Ireland, shall, from the 1st January, 1801, 
 be entitled to the same privileges, and be on the same footing, as to encouragements and 
 bounties on the same articles, being the growth, produce, or manufacture of either countr}', 
 and generally in respect of trade and navigation in all ports and places in the united kingdom 
 and its dependencies ; and in all treaties made by his majesty with any foreign power, his 
 subjects of Ireland shall have the same privileges, and be on the same footing as those 
 of Great Britain, 
 
 After 1st January, 1801, all prohibitions and bounties on the export of articles, the pro- 
 duce or manufacture of either country to the other shall cease, and they shall henceforth be 
 m exported without duties or bounties on export. 
 
 All articles, the produce or manufacture of either country, (with enumerated excep- 
 tions,) shall from thenceforth be imported into each country, from the other, free from duty, 
 other than countervailing duties, or such as may be imposed hereafter by parliament ; and 
 for twenty years from the union, certain enumerated articles shall be subject on import to 
 duties. 
 
 Calicoes and muslins, shall on import from either country to the other, be liable to pre_ 
 sent duties till 5th January, 1808, when they shall be decreased in equal annual proportions, 
 till they stand at 10 per cent., from 5th January, 1816, to 5th January, 1821; and cotton yarn 
 and twist shall, on like import, be subject to present duties till January, 1808, after which, 
 tlie latter shall be annually, in like manner, reduced, so that all duties may cease from Janu- 
 stry, 1816. 
 
 Articles, the growth, S«5. of either country, which are subject to internal duty, or to duty 
 on the materials of which they are composed, may be made subject, on import from each 
 country to the other, to a reasonable countervailing duty, in respect of the above mentioned 
 duty ; and on export, a drawback shall be given equal in amount to the countervailing duty 
 w!i5ch was paid on importation : and in like manner, the united parliament may impose any 
 new or additional countervailing duties, or take offer diminish the existing ones, as may ap- 
 pear on the like principle, just, in respect of any additional internal dut}-, or of any 
 abatement of duty ; and, when any such new duty is imposed on the above import, a draw- 
 back, equal to it in amount, shall be given in like manner, on the export of every such ar- 
 ticle, from one country to the other. 
 
 All articles, the growth, &c. of either country, when exported through the other, shall 
 in all cases be exported subject to the same charges, as if exported directly from the coun- 
 try of which they were the growth. 
 
 All duty on import of foreign or colonial goods into either country shall, on export to the 
 other, either be drawn back on the amount (if any is retained) placed to the credit of the 
 country to which they shall be exported, so long as the expenditure of the united kingdom is 
 defrayed by proportionable contributions; but all existing duties, bounties, or prohibitions on 
 corn, meal, malt, flour, or biscuit, may be regulated, varied, or repealed, as parliament shall 
 deem expedient. * 
 
 VII. The interest of the sinking fund, for the reduction of the debt of either kingdom, 
 shall continue to be defrayed separately. For the space of twenty yeare after the union 
 sliall take place, the contribution of Great Britain and Ireland, respective!} , towards the ex- 
 penditure of the united kingdom, in each year, shall be defra} ed in the proportion of fifteen 
 parts for Great Britain, and two parts for Ireland : at the expiration of twenty years, the 
 
 * 3D & 40 Geo. Ill, c. 67 
 
OF THE LAW OF ENGLAND. 269 
 
 future expenditure shall be defrayed in such proportions as the parliament of Great Britain 
 shall deem just and equitable. 
 
 VIIL All laws in force at the union, and all courts of jurisdiction, within the respective 
 kingdoms, shall remain subject to such alterations as may appear proper to the united par- 
 liament. All appeals shall be finally decided by the peers of the united kingdom. There 
 shall remain in Ireland an instance court of admiralty, and appeals therefrom shall be to the 
 delegates in chancery there : all laws contrary to the provisions enacted for carrying these 
 articles into effect, are repealed. 
 
 The great seal of Ireland may, if his majesty think fit, be used in like manner after 
 as before the union, except when it is otherwise provided by the above articles, within Ire- 
 land ; and his majesty ma) , so long as he sees fit, continue the privy council of Ireland for 
 that part of the united kingdom. 
 
 Since the passing of this act, accordingly, Ireland has stood in precisely 
 the same situation as Scotland, forming an integral part of the dominions 
 of the crown, and is represented in the parliament of the united kingdom : 
 all acts, therefore, which have been passed since the 40 George III. of the 
 Irish parliament, which are of a general nature, or on subjects which ap- 
 ply equally to the whole of the kingdom, are held, in practice, to extend 
 to,, and include Ireland, in cases even where Ireland is not expressly named, 
 if the provisions are such as can be carried into execution in Ireland. But 
 in cases where the subject does not apply to Ireland, or where an express 
 exception is made in the act that it shall not extend to Ireland, or where, 
 by the context of the act, and the limitation of the mode of recovering pe- 
 nalties, &c., to the courts of Great Britain or England only, it appears that 
 Ireland was not in the contemplation of the legislature, such acts cannot, 
 witli propriety, be held to extend to Ireland ; and these observations seen: 
 to apply, in an equal degree, to Scotland. In fact, it is to be lamented, 
 that sufficient care is not always taken in the acts which are introduced 
 into parliament, originally with a view to England only, either to extend 
 their operation explicitly to Scotland or Ireland, where it may be expedient 
 so to do ; or, on the other hand, to except Scotland and Ireland where the 
 general words of the act might be understood to extend to those parts of 
 the united kingdom, although no such intention was really entertained by 
 the framer of the act. 
 
 The political frenzy of the period induced the king's government to pass 
 a bill through both houses of parliament, in order and for the immediate 
 purpose of excluding Home Tooke from the house of commons, and pro- 
 spectively, all persons in holy orders ; by which measure the clergy of the 
 three established churches have no member to advocate their peculiar in- 
 terests in the lower house. The members for the two universities of Cam- 
 bridge and Oxford may be said to be their only representatives : it was at- 
 tempted at the passing of the Reform Bill for Scotland, to give tlie Scot- 
 tish universities one or more representatives, but, from the opposition the 
 proposal met with, it was dropt. On the twenty-third of June, 1801, there- 
 fore, it was enacted, that, from that date, no person having been ordained to 
 
270 RISE, PROGRESS, AND IMPROVEMENT 
 
 the office of priest or deacon in England, or being a minister of the church 
 of Scotland, is, or shall be capable of being elected to serve in parliament 
 as a member of the house of commons j and if, in future, any person hav- 
 ing been ordained to the office of priest or deacon, or being a minister of 
 the church of Scotland, shall be elected, their election and return shall be 
 void. And farther, if any member of the house of commons sliall, after 
 his election and return, be ordained to the office of a priest or deacon, or 
 become a minister of the church of Scotland, then his seat shall imme- 
 diately become void : and if any such person shall, in any of the aforesaid 
 cases, presume to sit and vote as a member of the house of commons, he 
 shall forfeit the sum of five hundred pounds for every day that he sits and 
 votes : and any person who chooses to sue for the same in any of Ijie 
 courts in Westminster, may recover the penalty with full costs of suit. 
 And every person against whom the penalties shall have been recovered, 
 shall be from tlienceforth incapable of taking, holding, or enjoying any 
 benefice, living or promotion ecclesiastical, or any office of honour or pro- 
 fit under his majesty, or his heirs and successors. The prosecution, how- 
 ever, is limited to the space of twelve calendar months, beyond which no 
 prosecution can lay againj^t offenders. The act determines what shall be 
 prima facie evidence of the ministerial character, by enacting, that the 
 simple fact of tlie celebration of divine service according to the liturgy of 
 the church of England, or in the extempore manner of worship of the 
 Scottish establishment, in any church or chapel consecrated or set apart 
 for public worship, shall be deemed and taken to foe prima facie evidence 
 of the fact of such person having been ordained to the office of a priest or 
 deacon of the church of England, or of his being a minister of the church 
 of Scotland within the intent and meaning of the act.* 
 
 In 1805, an act was passed for more effectually carrying into effect the 
 gracious act of queen Anne, for the augmentation of the maintenance of 
 tlie poor clergy, by empowering the respective bishops of every diocese, 
 and the guardians of spiritualities, sede vacante, from time to time as they 
 shall see occasion, and as may best serve the purposes of the bounty to the 
 poor clergy, to inform themselves of the clear improved yearly value of 
 such benefices as were returned into the exchequer, to certify with all con- 
 venient speed to the governors of queen A nne's bounty for the augmentation 
 and maintenance of the poor clergy ; and the act authorises and empowers 
 the said governors to act upon, and be guided by such new certificates of tlie 
 value and other circumstances, as fully and effectually as they are, by the 
 act of queen Anne, enabled to do with respect to such livings as were not 
 certified into the exchequer. The act provides, tliut such certificates, so 
 far as relates to first fruits and tenths, shall not be affected or altered in 
 
 *41 George III. c. 63. 
 
OF THE LAW OF ENGLAND. 271 
 
 any manner whatsoever. And in order to facilitate the intentions of all 
 such persons as may be disposed to contribute to the augmentation of such 
 livings and curacies as are within the meaning of the laws now in force re- 
 specting queen Anne's bounty, notwithstanding the statute of mortmain, 
 it is declared to be lawful for any person having in his, her, or their own 
 right, any money, goods, chattels, or other personal effects, to give, or 
 grant, or vest, at their will and pleasure, in the governors of queen Anne's 
 bounty, and their successors, to be by them disposed of according to law, 
 all or any part of such money, goods, chattels, or other personal effects, 
 without any deeds or enrolment. 
 
 In this long and glorious reign, members of the house of commons who 
 were bankrupts, were declared ineligible to sit and vote in that house, it 
 being thought necessary for preserving the dignity and independence of 
 that honourable house, that members of the house of commons who be- 
 come bankrupts and do not pay their debts in full, shall not retain their 
 seats: that from the twenty-third day of July, 1812, whenever a commission 
 of bankruptcy shall issue and be awarded against any member of the house 
 of commons, and he shall be found and declared bankrupt under the same, 
 such member shall remain twelve calendar months from the date of the 
 commission utterly incapable of sitting and voting in the house of commons, 
 unless the commission be superseded or the debts paid, of such creditors as 
 prove on his estate within that period j provided, however, if the bankrupt 
 should dispute any of the debts, and, within the aforesaid period, shall 
 enter into bond for the disputed sums, with two sufficient securities to pay 
 such sums of money as shall be recovered in any action, or suit in law or 
 equity, this shall be considered as paid or satisfied, for the purposes of the 
 act, so as to enable him to sit again. If the commission shall not be super- 
 seded within twelve months, nor the debts paid, then, immediately after the 
 expiration of the twelve months, the major part of the commissioners shall 
 certify the same to the speaker of the house of commons of the united 
 kingdom, and the bankrupt's election is then to be declared void, and no- 
 tice thereof inserted in the London gazette, and fourteen days afterwards, 
 the speaker must issue his warrant to the clerk of the crown to make out 
 a new writ for electing another member in the bankrupt's room.* 
 
 The laws respecting dissenters were considerably altered ; and several 
 acts passed in the reign of Charles II., relating " to non-conformists and 
 conventicles, and refusing to take oaths," were repealed, and other regula- 
 tions adopted, which will be more particularly noticed under the head 
 *' Dissenters."f An act was also passed in this reign for better regulat- 
 ing and preserving parish and other registers of births, baptisms, mar- 
 riages, and burials in England ; for facilitating the proofs of pedigrees of 
 
 * 52 George lU. c, lU. f 52 George IIL, 155. 
 
272 RISE, PROGRESS, AND IMPROVEMENT 
 
 persons claiming to be entitled to real or personal estates ;* this also will 
 be noticed in another place, and need not, therefore, be here farther en- 
 larged on. Appeals of murder, treason, felony, or other offences, with 
 the senseless and brutal wager of battel, which originated in a barbarous 
 age, and from a superstitous idea that the God of justice would grant 
 victory to the innocent, although he might be the weakest, were entirely 
 abolished in 1819 by an act of parliament, f Corruption of blood was 
 taken away by this benevolent monarch, by an act passed, 1814, when it 
 was enacted, that from July of that year, no attainder for felony, for the 
 time to come, shall take place, save and except in cases of the crime of high 
 treason, or of the crimes of petit treason, or murder, or of abetting, pro- 
 curing, or counselling the same, shall extend to the disinheriting any heir, 
 nor to the prejudice of the right or title of any person or persons, other 
 than the right or title of the offenders, during their natural lives only ; 
 and that it shall be lawful for any person, to whom the right or interest 'Of 
 any lands, tenements, or hereditaments, after the death of any such offen- 
 der, should, or might have appertained, as if no such offender had been, to 
 enter into the same. | 
 
 The barbarous and cruel punishment for higli treason was modified, and 
 its cruelties removed in 1814, by an act of the legislature ; formerly, as the 
 law stood, the sentence or judgment awarded against persons convicted of 
 high treason, was, that they should be drawn on a hurdle to the place of 
 execution, and there be hanged by the neck, but that they should be taken 
 down before they were dead, and while still alive, their bowels were torn 
 out and burned before their faces, and afterwards they were beheaded, their 
 bodies divided into four quarters, and their heads and quarters being at the 
 king's disposal, were stuck up in some public place of sucli towns as his 
 majesty might direct : this latter part of the sentence had long fallen into dis- 
 use, the king always remitting it ; but the refinement of modern manners re- 
 quired that this relic of the olden time should be entirely expunged from the 
 statute book : accordingly, it was enacted, that in all cases of high treason, 
 the sentence or judgment, from and after the passing of this act, shall 
 be, that the person guilty of treason, shall be drawn on a hurdle to the 
 place of execution, and be there hanged by the neck, until such person be 
 dead : and afterwards the head shall be severed from the body of such per- 
 son, the body divided into four quarters, and to be disposed of as his ma- 
 jesty and his successors shall think fit. The statute further provides, that 
 in case his majesty or his successors shall so think fit, he may by warrant, 
 under his sign manual, countersigned by one of the principal secretaries 
 of state, declare his will and pleasure, that such traitor shall not be drawn 
 on a hurdle to the place of execution, nor hanged by the neck ; but that 
 
 * 52 George III. 146. \m George III. c. 46. % 54 George III. c. 145. 
 
OF THE LAW OF ENGLAND, 273 
 
 instead thereof, the head shall be there severed from the body whilst he is 
 alive; and in such warrant, may direct and order how, and in what man- 
 ner the body, head, and quarters shall be disposed of : and which it is the 
 sheriff's duty to execute accordingly. * 
 
 Besides improvements in the criminal law, this reign was signalized by 
 the encouragement of learning and science, and the legislature secured the 
 copies, and copy-right of printed books, to their authors and assigns, and 
 repealed all former acts, which imposed a penalty, for not delivering copies 
 of such works printed on the finest paper, to the stationers' company, for 
 the various libraries which were intitled to receive them. In place of the 
 old regulations, which made it imperative to deliver eleven copies, the act 
 directs, that, 
 
 I. Eleven printed copies of the whole book, and of every volume thereof, upon the paper 
 upon which the largest number or impression of such book shall be printed for sale, together 
 with all maps «nd prints belonging thereto, which shall be printed and published, on de- 
 mand thereof being made in writing to, or left at the place of abode of the publisher 
 thereof, at any time within twelve months next after the publication thereof, under 
 the himd of the warehouse-keeper of the company of Stationers, or the librarian, or other 
 person thereto authorised by the persons, or body politic and corporate, proprietors or 
 managers of the libraries following : viz., the British Museum, Sion College, the Bodleian 
 library at Oxford, the public library at Cambridge, the library of the Faculty of 
 Advocates at Edinburgh, the libraries of the four universities of Scotland, Trinity Col- 
 lege library, and the King's Inns library at Dublin, or so many of such eleven copies, as 
 shall be respectively demanded, on behalf of such libraries respectively, shall be delivered by 
 the publishers thereof respectively, within one month after demand made thereof in writing, 
 as aforesaid to the warehouse-keeper of the said company of Stationers, for the time being ; 
 which copies, the said warehouse-keeper is hereby required to receive, at the hall of the said 
 company, for the use of the library for which such demand shall be made, within twelve 
 months, as aforesaid : and the said warehouse-keeper, is hereby required, within one month 
 after any such book or volume shall be so delivered to him, to deliver the same for the use of 
 such library. And if any publisher, or the warehouse-Keeper of the said company of Sta- 
 tioners, shall not observe the directions of this act therein, that then he and they, so making 
 default in not delivering or receiving the said eleven copies as aforesaid, shall forfeit, besides 
 the value of the said printed copies, the sum of five pounds for each, copy not so delivered or 
 received, together with the full costs of suit, the same to be recovered by the persons, body 
 politic or corporate, proprietors, or managers of the librarj-, for the use whereof such copies 
 ought to have been delivered or received : for which penalties and value, such parties are 
 now hereby authorised to sue by action of debt or other proper action in any court of record 
 in the united kingdom. 
 
 III. These libraries are not entitled to demand copies of a second or any subsequent edi- 
 tion of a book, unless such edition contains either alterations or additions ; but additions 
 printed in an uniform manner with the first edition, may be demanded. 
 
 IV. In order to afford further encouragement to literature, that from the passing of this 
 act, the author of any printed work, or his assigns, shall have the sole liberty of printing and 
 reprinting such books for the full term of twenty-eight years, to commence from the day of 
 first publishing the same : and also, if the author be living at the end of that period, for the re- 
 sidue of his natural life. And if any bookseller, &c. in any part of the British dominions, shall, 
 within the terms and times limited by this act, print, reprint, or import, witliout obtaining 
 the consent of the author or proprietors of the copy-right in writing, or shall sell, publish, or 
 expose for sale, any such book or books, without consent as aforesaid, they shall be liable to 
 
 *54 George III., c. 146. 
 2M 
 
274 RISE, PROGRESS, AND IMPROVEMENT 
 
 a special action on the case, at the suit of the author or proprietors of the copy- right, in any 
 court of record in that part of the British dominions where the oflence shall have been conv- 
 mitted, recover such damages as the jury on the trial shall give, or assess, together with 
 double costs of suit; and all offenders shall also forfeit such book or books, and all and every 
 sheet, being part of such book or books, and shall deliver the Siime to the author or his as- 
 signs, who are bound forthwith to reduce such books or sheets into waste paper. 
 
 V. The publisher of every book, demandable under this act, shall, within one calendar 
 month after the day, in which any such book shall be fir.-t sold, published, or advertised for 
 sale, within the bills of mortality, or within three months, in any other part of the united 
 kingdom, enter the title to the copy of every such book, and the name and place of abode of 
 the publisher, in the register book of the company of Stationers in London, as has been 
 hitherto the custom, and deliver one copy on the best paper for the use of the British Muse- 
 um. The Stationers' company are bound to- keep such register at all times in their hall ; and 
 for every register they are entitled to the sum of two shillings, and no more. They are 
 also obliged, at all reasonable and convenient times, to allow the said register to be inspected 
 by any one, for which inspection the warehouse-keeper is entitled to a fee of one shilling, and 
 and a farther sum of one shilling, if he grants a certificate under his hand of the entry. 
 In the case of magazines, reviews, or other periodical publications, it shall be sufficient to 
 make entry in the company's register book within one month after the publication of the 
 first number or volume. 
 
 VI. and VII. The warehouse-keeper of the Stationers' company is required, at an inter- 
 val not exceeding three months, to transmit lists of such twoks as have been entered at the 
 hall during each interval, to the librarians of the before mentioned establishments, and call on 
 the publishei-s for the copies. But publishers may deliver to the different libraries such books 
 as may be demanded of them, whose receipt shall be as effectual as if delivered at the com- 
 pany's hall. 
 
 VIII. IX. and X. The authors, or their assigns, of books that were already published before 
 the passing of this act, were entitled to the benefit of an extension of the time from fourteen 
 years, the former period of copy-right, to twenty-eight years, the present period ; and authors 
 living at the end of twenty-eight years, were entitled to have the sole right of publiaition during 
 all the days of their natural life. The time of actions for recovery of damages was limited 
 to twelve months after the commission of the offence, otherwise It is void, and of no effect. * 
 
 Some new regulations were enacted respecting that most admirable insti- 
 tution, the Coroner's Inquest, in the election of coroners for counties ; as the 
 best institution, in the hands of fallible men, are liable through time to fall 
 into disorder, and require improvement. The act accordingly directs, that 
 
 On any election of a coroner for any county in England and Wales, the sheriff shall liold 
 his county court for such election, at the most usual place of elections of coroners, Avithin such 
 county, for the last forty years, and shall there proceed to election at the next county court, 
 unless the same fall out to be held within six days after the receipt of the writ de coronatore 
 eligendoi on the same day, and then shall adjourn the court to some convenient daj , not 
 exceeding fourteen days, giving ten days' notice of the time and place of election ; and if the 
 election is not determined, on the view, with consent of the freeholders there present, and if 
 a poll is demanded, then the sheriff, or in his absence the under sheriff with his deputie?, 
 shall forthwith take the same in some public place, commencing on the day when demand- 
 ed, and proceeding therein from day to day (except Sunday), till finished, but not for more 
 than ten days at most (except Sunday), keeping the same open for seven hours a day, be- 
 tween nine o'clock a. m., and five o'clock p. M., and such sherilf, &c., shall appoint a con- 
 venient number of clerks for taking the poll in his presence, who, before they begin to take 
 the poll, shall be sworn by the sheriff, truly and indifferently, to take the same, and to set 
 down the names of each freeholder, and the place of his abode and freehold, and the name of 
 its occupier, and for whom he shall poll ; and to poll no freeholder who is not sworn, if so re- 
 
 * 54 George III., c. 6G. 
 
OF THE LAW OF ENGLAND. 275 
 
 quired by any candidate ; the clerk shall take the poll in the presence of the sherifl", who shall 
 appoint for each candidate a person nominated to him by the latter, to be inspector of the 
 poll clerks, and every freeholder, before polling, shall, if required by any candidate, take the 
 
 following oath, to be administered either by the sheriff, under sheriff, or sworn poll clerk: 
 
 ' You swear (or, being a quaker, solemnly affirm) that you are a freeholder of the county of 
 
 , and have a freehold estate consisting of , l}ing at , within the said county, and 
 
 that freehold estate has not been granted to ) ou fraudulently, on purpose to qualify you to 
 
 give your vote at this election, and that the place of your abode is at (specifjing street or 
 
 place), that you are twenty-one years old as you believe, and that you have not been before poll- 
 ed at this election.' — And every freeholder and other person, taking such oath or affirmation, 
 ■who shall thereby commit wilful perjury, and be convicted thereof, and any person who 
 shall suborn any freeholder to take such oath, whereby he shall commit such perjury, shall 
 be liable for their respective offences to the penalties as heretofore. No trustees or mort- 
 gagees are allowed any vote at such elections, in right of their trust or mortgage, unless 
 they are in actual possession, or receipt of the rents or profits of the estate, but the mortgager 
 and cestuique trust in possession may vote for the same, notwithstanding any mortgage or 
 trust ; and all conveyances whatsoever, in order to multiply voices, or split the interest in any 
 houses or lands among several persons, to enable them to vote at elections for a county coro- 
 ner, are void. All the reasonable expenses incurred by the sheriff in providing poll books, 
 booths, and clerks, for taking the poll at any such election, shall be paid by the candidates, 
 in equal proportions, and the clerk shall not be paid more than one guinea per day. * 
 
 In the year 1819, Sir Robert Peel brought in a bill, and which finally 
 passed both houses, and received the royal assent on the 2nd July, for con- 
 tinuing the restrictions contained in several acts of parliament, on pay- 
 ments in cash by the bank of England, until the first day of May, 1823, 
 and to provide for the gradual resumption of cash payments : and at the 
 same time to permit the exportation of silver and gold. 
 
 L That the several provisions of certain acts,f shall be further continued, until the 1st 
 May, 1823 : ^ and that after that date, the restrictions on payments in cash, shall finally 
 cease and determine. 
 
 IL That on, or after 1st February, 1820, and before the 1st October of the same year, 
 whenever any person shall tender to the governor and company of the bank of England, any 
 notes of the said bank, pa^'able on demand, amounting to not less tlian the value of sixty 
 ounces of gold, calculated after the rate of four pounds one shilling for every ounce of gold, 
 and shall require standard gold for such notes, the goveinor and company of the bank of 
 England shall, upon demand, pay to the tenderer of such notes, such quantity of gold, of the 
 fineness declared to be the standard of the lawful gold coin of the realm, the same having 
 been first assayed, and stamped at the mint in London, as shall be equal to amount of the 
 notes, at the rate aforesaid, of four pounds one shilling per ounce. 
 
 III. Between the first day of October, 1820, and the first of May, 1821, such payments as 
 above, shall be made in gold, of the standard fineness, calculated after the rate of three 
 pounds nineteen shillings and sixpence per ounce, having been first stamped and assayed at 
 his majesty's mint. 
 
 IV. Between the first of May, 1821, and the 1st May, 1823, such payments shall be made 
 in gold, calculated after the rate of three pounds seventeen shillings and tenpence half-penny 
 per ounce, stamped and assayed at the mint. 
 
 V. But between the first day of February, and the first day of October, 1820, the bank of 
 England may make payments, at any rate less than four pounds one shilling, but not less 
 than three pounds nineteen shillings and sixpence per ounce : and between the first day of 
 October, 1820, and the first of May, 1821, the bank may pay at a less rate than throe pounds 
 
 * 58 George III. c. 95. t 37 Gee IIL c. 45.-37 Geo. III. c. 91. 
 
 t Amended by 38 Geo. III. c. 1. — 43 Geo. III. c. 18. also c. 23. 
 
276 RISE, PROGRESS, AND IMPROVEMENT 
 
 nineteen shillings nnd sixpence, but not less than three pounds seventeen shillings and tenpence 
 half-penny, provided that the governor and company shall give three dajs' notice in the 
 London Gazette, of their intention to make such payment after such rates, specifying the 
 rates at which such pay merit shall be made. 
 
 VI. The governor and company of the Bank of England shall not be required or com- 
 pelled to pay, or deliver any such gold, except in ingots or bars, of the weight of sixty ounces 
 each, assayed and stamped as aforesaid. 
 
 VII. It shall, and may be lawful for the governor and company of the bank of Eng- 
 land to pay any fraction less than forty shillings, of any sum so demanded, above the value 
 of sixty ounces, in the lawful silver coin of the realm. 
 
 VIII. After the first day of May, 1822, the bank of England, if they shall think fit, may 
 pay or exchange the lawful coin of the realm, for any of their own notes, payable on demand. 
 
 IX. From the passing of this act, till the fti-st day of May, 1823, the governor and com- 
 pany of the bank of England shall deliver, weekly, a true and perfect account in writing, of 
 the average amount of all promissory notes and bills of the said bank, which shall be in cir- 
 culation during the week, to one of the clerks of his majesty's privy council; and, besides, they 
 shall publish in the London Gazette, an account of the average number of promissory notes 
 and bills quarterly, within one week, next after the end of each quarter respectively. 
 
 X. And as the laws in force against melting and exporting the gold and silver coin of the 
 realm have been found to be inefl'ectual, and it is expedient that the traffic in gold and 
 silver bullion should be unrestrained : this act renders it lawful for any person to export gold 
 or silver coin beyond seas, to melt the same, and to manufacture, or export, or othei-wise 
 dispose of it, without any restriction, forfeiture, pain, penalty, incapacity, or disability 
 whatever. 
 
 XI. To remove all doubts respecting ancient stiitutes against melting and exporting gold 
 or silver coin, this clause repeals them all, except only so far as relates to any suit, action, or 
 information, which might have been pending at the passing of this act. * 
 
 XIL Repeals several acts against clipping and counterfeiting the coin of the kingdom, 
 and the stiitute requiring the oath of the exporter, that no part of the molten gold or silver 
 was part of the coin of the realm, and some others, or the captain, that he did not knowing- 
 ly receive such molten coin on board his vessel for exportation. 
 
 XI IL Provided always, that nothing in this act contained, shall either extend, or be con- 
 strued to extend, to repeal, or alter, any acts, or parts of any acts in force in Great Britain 
 and Ireland, so far as the same relates to the prevention, detection, or punishment of clip- 
 ping, washing, rounding, filing, impairing, diminishing, falsifying, scaling, or lightening 
 of the lawful coin of the realm •, or to the inflicting any pain, penalty, or forfeiture on any 
 persons guilty of such ofiences, or guilty of buying or selling, or knowingly having in their 
 custody, any clippings or filings of such coin-, and that from, and after the passing of this 
 act, before any persons shall transport, or cause to be transported, any molten silver whatever, 
 oath shall be made before the wardens of the company of Goldsmiths in London, or one of 
 them, by the owner of such molten silver, and likewise by one credible witness,lhat the same 
 is lawful silver, and that no part thereof was, before the same was molten, clippings of the 
 current coin of this realm, which oath one or more of the said wardens are bound to admin- 
 fister, instead of the former oath ; and that after the passing of this act, before any persons 
 shall ship, or cause to be shipped, any molten silver, or bullion, oath shall be made before the 
 court of the lord mayor, and aldermen of London, by the owner of such molten bullion, and 
 by two or more credible witnesses, that no part of such molten bullion was, before melting, 
 clippings of the coin of this realm : and all the powers, autliorities, rules, regulations, and 
 provisions in former acts, shall continue in force, with relation to the clipping of the coin of 
 the realm, and with relation to the exportation of any molten silver, or bulljon whatsoever, 
 which, before the melting thereof, was clippings of the coin of the realm, and in all other re^ 
 spects whatever, except only so far as the same is expressly repealed or altered by this act. f 
 
 * 9 Ed. IIL— 17 Ed. III. c. 1.— 27 Ed. III. c. 14.-38 Ed. III. c. 2.-5 Rich. II. c. 2.-17 Rich. 
 II. c. 1.— 2 Hen. IV. c. 5.-2 Hen. VI. c. 6.-4 Hen. VII. c. 23.— 13 & 14 Car. II. c. 31.-6 & 7 
 W. & M. c. 17.-7 & 8 W. & M. c. 19. 
 t59 Geo. III. c. 49. 
 
OF THE LAW OF ENGLAND. 277 
 
 Many people liave been of opinion, tliat this act has not been beneficial 
 to the trade and commerce of the kingdom ; and the attempt to extend its 
 operation to Scotland, was resisted with unexampled unanimity ; — petitions 
 poured in from every town and village in the kingdom, and the late Sir 
 Walter Scott, wrote violent philippics against the measure under the 
 fictitious name of Malachi Malagrowther ; and parliament, yielding to the 
 expressed wishes of the people of Scotland of all shades of politics and re- 
 ligion, confined the operation of the bill to the realm of England. On 
 the same day, 2nd July, 1819, the royal assent was given to a bill to 
 amend the laws respecting the settlement of the poor, so far at least as re- 
 gards renting of tenements, on account of the disputes and controversies 
 which daily occurred respecting the settlement of the poor, and the rent- 
 ing of tenements. It was in consequence enacted, that no person shall 
 acquire a settlement in any parish or township in England, maintainmg its 
 own poor, by reason of tlieir dwelling and renting for forty days in any 
 tenement, unless it sliall consist of a house or building within such parish 
 or township, or of both, honajide, hired by such person at, and for the sum 
 of ten pounds a year at the least, for the term of one whole year ; nor un- 
 less such house or building shall be held, and such land occupied, and rent 
 for the same actually paid for the term of one whole year ^t the least, by 
 the person liiring the same ; nor unless the whole of such land shall be si- 
 tuate within the same parish or township, as the house wherein the person 
 hiring such land shall dwell and inhabit. 
 
 On the 29th July, 1812, an act was passed, which shall be more parti- 
 cularly mentioned hereafter, under our historical account of the Dissenters, 
 to repeal certain acts and amend others, relating to religious worship and 
 assemblies, and persons teaching and preaching therein. There is an ex- 
 press proviso in the act, for the ecclesiastical jurisdiction of the church of 
 England, providing, that the act shall neither be construed in any way, to 
 affect the celebration of divine service according to its rites and ceremonies, 
 by its own ministers, and in its own places of worship, nor the jurisdiction 
 of the archbishops and bishops, or other persons exercising lawful authority 
 in the established church of England and Ireland. But it expressly enacts, 
 that nothing in the act shall extend, or be construed to extend to the peo- 
 ple usually called Quakers, or to their religious assemblies.* 
 
 Disturbances, — arising out of political differences of sentiment, and the 
 public and private distresses, owing to the violent and extensive clianges 
 which had taken place subsequent to the battle of Waterloo, and the re- 
 storation of the French monarchy, — were frequent in various manufactur- 
 ing districts, and led to m.any breaches of the peace, and in more than 
 one instance, to meetings in arms for the overthrow of the government, and 
 
 * 52 Geo. III., c. 155, 
 
278 RISE, PROGRESS, AND IMPROVEMENT 
 
 to the secret drilling or training to anns, in the manufacturing districts. 
 In consequence of these unlawful transactions, parliament passed an act in 
 tlie last year of the reign of George III., for the suppression and preven- 
 tion of such meetings, on the 11th December, 1819 : — 
 
 I. Whereas, in some parts of the united kingdom, men, clandestinely and unlawfully as- 
 sembled, have practised military training and exercise, to the great terror and alarm of liis 
 majesty's peaceable and loyal subjects, and the imminent danger of the public peace : be it 
 therefore enacted, that all meetings and assemblies of persons, for the purpose of training or 
 drilling, or of being trained or drilled, to the use of arms, or for the purpose of practising 
 military exercise, movements, or evolutions, without any lawful authority from his majesty, 
 &c. for so doing, are hereby prohibited, as dangerous to the peace and security of his majes- 
 ty's liege subjects and his government ; and any person who shall be present, or attend such 
 meetings or assemblies, for the practice of military exercise, movements, or evolutions, or who 
 shall train any other person to the use of arms, or who shall aid or assist them therein, on 
 lugal conviction, shall be liable to transportation for any term not exceeding seven years, or 
 to imprisonment, not exceeding two years, at the discretion of the court. 
 
 I I. Any justice of the peace, or any constable or peace officer, or any other person acting 
 in their aid or assistance, may disperse such unlawful meeting or assembly, and arrest 
 and detain any pei-son present at, or aiding or assisting or abetting such meeting or assem- 
 bly. And the justice of peace before whom such ofiender shall be brought, shall commit 
 him to prison for trial, unless sufficient bail be given for his appearance at the next assizes, 
 or general or quarter sessions of the peace, to answer to any indictment that may be prefer- 
 red against him in England and Ireland: and in Scotland, every such person shall be arrest • 
 ed and dealt with according to the law and practice of that part of the united kingdom, as 
 in the case of a bailable offence. 
 
 III. The sheriffs depute and their substitutes, stewards depute and their substitutes, 
 justices of the peace, magistrates of ro3al burghs, and all other inferior judges and magis- 
 trates, and also all high and petty constables, or other peace officers, of any count} , stewartry, 
 city, or town, within that part of the united kingdom called Scotland, shall have such and 
 the same powers and authorities for putting this present act in execution, within Scotland, 
 as justices of the peace, and other magistrates, peace officers, and constables, respectively, have 
 by virtjie of this act, witliin other parts pf the united kingdom. 
 
 IV. Offenders may be prosecuted by indictment, or otherwise, for any offence within the 
 intent and meaning of this act, as if it had never been passed, if previously indicted. 
 
 V. Any action or suit brought or commenced against any justice of the peace, con- 
 stable, peace officer, or other persons in England or Ireland, for any thing done or acted in 
 pursuance of this act, must be commenced within six calendar months next, after the fact 
 committed, and not afterwards; and the venue in every such action or suit, must be laid in 
 the proper oounty, where the fact was committed, and not elsewhere ; and in every such suit 
 the defendants may plead the general issue, and produce this act, and the special matter, in 
 evidence at any trial : and if such action or suit shall be commenced after the limited time, 
 or the venue be laid in other place than as aforesaid, then the jury shall find a verdict for 
 the defendants .- and in such case, or if the jury find a verdict for the defendants upon 
 the merits, or if the plaintiff is nonsuited or discontinue his action after appearance, 
 or if upon demurrer, judgment shall be given against the plaintiff, the defendant shcUl have 
 double costs, which they may recover in the same manner, as any defendant can by law in 
 other cases. 
 
 VI. Every action or suit which shall be brought against any person in Scotland, for any 
 thing done or acted in pursuance of this act, shall also be commenced witliin six months 
 after the commission of the fact, and not afterwards, and shall be commenced in the court of 
 session : and here also the defendants may pliad the authority of this act, and produce it in 
 evidence : and any suit commenced in the court of session after the limited time, shall be 
 dismissed ; and if the defendants shall be assoilzied, or the pursuer shall sutler the action to tall 
 asleep, or if a decision is pronounced against the pursuer upon the relevancy, the defend- 
 
OF THE LAW OF EKGLAND. 279 
 
 anls shall have triple costs, or expenses, which he may recover in the same way as in other 
 cases. 
 
 VI J. The act provides, that no person shall be prosecuted by virtue of this act, for any 
 thing committed contrary to its provisions, unless such prosecution shall be commenced with- 
 in six calendar months after the commission of the offence. * 
 
 Much about the same time, also, an act was passed, authorizing justices 
 of the peace, in the disturbed counties in Great Britain, to seize and de- 
 tain arms, when collected and kept for purposes dangerous to the public 
 peace : but as this act was only intended for a temporary purpose, and 
 expired on the 25th March, 1822, it is not necessary to detail its provi- 
 sions. 
 
 After a reign of sixty years, George III. was gathered to his fa- 
 thers, " and his son reigned in his stead." During the reign of George III. 
 much was done for the amelioration of the laws, affecting all classes of Ins 
 majesty's subjects, both in a political and religious point of view ; but in 
 the reign of his successor, George IV., the most fundamental legal changes 
 were effected, in decided improvement of the laws, and in some of the 
 barbarous customs, which being introduced in times of ignorance and 
 superstition, had become obsolete in practice, although they still continued 
 to hold their place in the statute book. The long and profound peace 
 which succeeded the conclusion of the war with the emperor Napoleon, 
 gave time and leisure for the examination and improvement of the statute 
 laws of the kingdom, and for the introduction of some fundamental changes, 
 the propriety and utility of which, men in this happy region of freedom 
 and unshackled thought, may be permitted to doubt. 
 
 We therefore propose to enumerate the statutes referred to, in their 
 order, giving the more important ones at full length. 
 
 In the first year of this sovereign's reign, an act was passed to prevent delay in the ad- 
 ministration of justice, in cases of misdemeanor, on the 23d December, 1819, which was 
 rendered necessary, because formerly, defendants prosecuted in the courts of king's bench, in 
 Westminster, and Dublin, and in the sessions of the peace, and of Oyer and Terminer, great 
 sessions, and of gaol delivery in England and Ireland, had an opportunity of postponing their 
 trials to a distant period, by means of imparlances in these several courts, and the time al- 
 lowed them in consequence. By this act, therefore, the defendant is prohibited from im- 
 parling to another term, but is required to plead or demur, within four days from the time 
 of appearance ; and in default of such pleading or demurring, within four days, judgment 
 may be entered against the defendant for want of a plea.f An act was passed, for more 
 effectually preventing seditious meetings and assemblies, on the 24th December, 1819, on ac- 
 count of the assembling of large concourses of people, in various parts of the kingdom, under 
 pretext of deliberating on public grievances, and of agreeing on petitions, complaints, re- 
 monstrances, declarations, resolutions, or addresses, in a manner, manifestly tending to pra- 
 duce confusion and Ciilamities in tie nation : it was therefore enacted, that not more than 
 fifty persons, except in the case of county meetings lawfully convened, shall be permitted to 
 meet, unless in separate parishes, or townships, and where persons calling the meeting, 
 usuall} inhabit, and with notice to a justice of the peace, previously given by seven house- 
 
 * 60 Geo. III. & 1 Gej. IV., c. 1. 1 1 Geo. IV., c 4. 
 
280 RISE, PROGRESS, AND IMPROVEMENT 
 
 holders, subscribed with their names, places of abode, and designations, under a penalty of 
 fine and imprisonment, not exceeding twelve calendar months, at the discretion of the court. 
 And if persons attending such meetings, refuse to depart after proclamation made, they shall 
 upon conviction be guilty of felony, and liable to transportation for seven years. Justices of 
 the peace, are to make proclamation in a loud voice, commanding the meeting to disperse : 
 " Our sovereign lord the king, chargeth, and commandeth all persons here assembled, im- 
 mediately to disperse themselves, and peaceably to depart to their habitations, or their lawful 
 busdness: God save the king." And if after such proclamation twelve men remain to- 
 gether, and refuse to disperse by the space of half an hour, they shall be guilty of felony and 
 liable to transportation for seven years. 
 
 On account of the increase of blasphemous and seditious libels, an act was passed on the 
 30th of December, 1819,* for their more effectual punishment : in any case in which ver- 
 dict or judgment by default shall be had against any person for composing, printing, or 
 publishing any blasphemous or siditious libel tending to bring into hatred or contempt 
 his majesty's or his regent's persons, or the government and constitution of the united king- 
 dom, or either house of parliament; or to excite his majestj's subjects to attempt the altera- 
 tion of any matter in church or state, otherwise than by lawful means. It shaU be lawful to 
 seize and carry off all the copies of such libel whosesoever possession they may be in ; and in 
 case of refusal to admit the officers, they may enter by force; and, in the event of a second 
 offence, the offender may be transported for any length of time that the court shall appointf 
 In connexion with this, an act was at the same time passed for regulating the newspaper 
 stamps, and for restraining the abuses arising from the publication of blasphemous and sedi- 
 tious libels, t 
 
 In the beginning of the reign of George IV., as is usually and annually done, an act was 
 passed for punishing mutiny and desertion in the army; and, as the articles of war are not 
 generally kno^vn, we shall here transcribe it. 
 
 If any person who is or shall be commissioned, or in pay as an officer, or listed as a non- 
 commissioned officer or soldier, shall at any time begin, excite, cause, or join in any mutiny 
 or sedition in his majesty's land or sea forces, or shall not use his utmost endeavours to sup- 
 press the same, or without delay give notice thereof to his commanding officer ; or shall mis- 
 behave himself before the enemy ; or shall shamefully abandon or deliver up any garrison, 
 fortress, post, or guard committed to his charge; or shall compel the governor or command- 
 ing officer of any such to deliver it up to the enemy or to abandon the same; or shall induce 
 others to misbehave before the enemy, &c.; or shall leave his post before he is relieved, or 
 shall be found sleeping on his post; or shall hold correspondence with, or give advice or in- 
 telligence to any rebel or enemy, either by letters, messages, signs, or tokens in any manner 
 or way whatsoever; or shall treat or enter into any terms with such rebel or enemy without 
 his majesty's license, or the general or commander-in-chief's license ; or shall strike, or use 
 any violence against his superior officer, being in the execution of his office ; or shall disobey 
 any lawful command of his superior officer, — every person so offending in any of the above 
 mentioned matters, whether within or without the realm, on lander sea, shall sriffer death, 
 or such other punishment as a court martial shall inflict. 
 
 In all trials by courts martial, every member, before any proceedings be had, shall take 
 the following oaths upon the holy evangelists, before the judge advocate or his deputy : 
 
 »' You shall well and truly try and determine according to your evidence in the matter 
 now before you. So help you God." 
 
 ♦' I, , do swear that I will duly administer justice according to the rules and 
 
 articles for the better government of his majesty's forces, and according to an act of parliament 
 now in force for the punishment of mutiny and desertion, and other crimes therein men- 
 tioned, — without partiality, favour, or affection: and if any doubt shall arise, which is not 
 explained by the said articles or act of parliament, according to my conscience, the best of 
 my understanding, and the custom of war in the like cases: and I further swear, that I will 
 not divulge the sentence of the court until it shall be approved by his majesty, or by some 
 person duly authorized by him ; neither will I> upon any account, at any time whatsoever, 
 
 * 60 Geo. III. & 1 Geo. IV., c. 6. t 60 Geo. III. & I Geo. IV., c 8. t Ibid, c 9, 
 
OF THE LAW OF ENGLAND. 281 
 
 disclose or discover the vote or opinion of any particular member of the court martial, un- 
 less required to give evidence thereof as a witness, by a court of justice or a court martial, in 
 a due course of law. So help me God." 
 
 And so soon as the said oaths shall have been administered to the respective members, the 
 president of the court is hereby authorized and required to administer to the judge advocate, 
 or the person officiating as such, an oath in the following words : 
 
 " I, , do swear that 1 will not, upon any account, at any time whatsoever, dis- 
 close or discover the vote or opinion of any particular member of the court martial, unless 
 required to give evidence thereof as a witness, by a court of justice or a court martial, in a 
 due course of law. So help me God." 
 
 And no sentence of death shall be given against any oflender in such case, by any general 
 court martial, unless nine officers present shall concur therein : except such general court 
 martial shall be holden in any place beyond the seas out of his majesty's dominions, or out 
 of any of the settlements belonging to the united company of merchants of England trading 
 to the East Indies, or in his majesty's colony of the Bermuda Isles, or in Africa, or in New 
 South Wales : and in all cases when a court martial shall consist of more officers than thir- 
 teen, and also in any of the aforesaid places and settlements, when the same shall consist of a 
 lesser number of officers, then such judgment shall pass by the concurrence of two thirds at 
 least of the officers present ; and no proceeding or trial shall be had upon any offence but be- 
 tween the hours of eight of the clock in the morning and four in the afternoon, except in 
 Gises which require an immediate example. Al! witnesses duly summoned by the judge ad- 
 vocate, or his deputy, during their necessary attendance in such courts, both in going to and 
 returning from the same, shall be privileged from arrest, in the same manner as witnesses 
 attending any of his majesty's courts of law ; and if any such witness shall be unduly ar- 
 rested, the court out of which the process issued, shall discharge such arrest; or if that court 
 is not sitting, then the judge of the king's bench in London, or Dublin, or court of session 
 in Scotland, or the courts of law in the East or West Indies, or elsewhere, shall discharge 
 the arrest. And all witnesses, duly summoned, who refuse or neglect to attend on courts 
 martial, shall be liable to attachment in the court of king's bench in London, or Dublin, or 
 court of session, sheriffs, or stewards depute, or their substitutes, within their several shires 
 or stewartries in Scotland, or the courts of law bejond the seas. 
 
 XXXIII. Every judge advocate or his deputy is required to transmit, with as much ex- 
 pedition as the opportunity of time and place will permit, the original proceedings and sen- 
 tence of such court martial, to the judge advocate general in London; in whose office they 
 are to be carefully kept and preserved, that copies may be obtained by persons having a right 
 thereto. 
 
 XLIX. Constables, and other chief officers in Ireland, sliall quarter and billet the officers 
 and soldiei's in inns, &c., taking care not to billet less than two men in any one house. And 
 if any constable, &c., shall presume to quarter or billet any officer or soldier in any house not 
 within the meaning of this act, without the consent of its owner or occupier, such owner or 
 occupier shall have his remedy at law. Any military officer using threats or menaces to in- 
 duce any constable to act in contravention of this act, on conviction, shall be deemed and taken 
 to be ipso facto cashiered, and utterly disabled to have or hold any military employment 
 whatsoever. 
 
 LXVII. Officers receiving pay or subsistence money, either for a whole regiment or 
 particular troops or companies, shall setUe every four days, or before the troops quit their 
 quarters, the just demands of all persons keeping inns, or other places where soldiers are 
 quartered ; and if any officer shall not satisfy, content, and pay the same, on complaint and 
 oath made by two witnesses at the next quarter sessions, the secretary at war in England, or 
 the secretary in Ireland, are required and authorized to give orders to the agent of the troop 
 w company, to pay and satisfy the said sums, and to charge the same against such officer. 
 
 The next two sections provides for the ordinary and extraordinary providing of carriages 
 for the forces marching in England and Ireland. In cases of emergency, justices may be 
 required to issue warrants for providing saddle horses and four wheel carriages let to hire, 
 and also vessels; and officers demanding them, are to pay for their hire such sums as the 
 justices shall direct. The constable shall give a receipt without a stamp, and order the horses, 
 
 2 N 
 
282 RISE, PROGRESS, AND IMPROVEMENT 
 
 &c. to be provided ; and milibiry oflicers may convey on these, arms, clothes, accoutrements, 
 baggage, equipage, officers, soldiers, servants, women, children, and other persons. There 
 is also a clause for the relief of such men as too hastily enlist themselves ; they shall be at 
 liberty to declare their dissent to such enlisting before a magistrate within four dajs, but not 
 sooner than twenty-four hours.* 
 
 An act was passed on the 15th J uly, 1820, repealing the public and private whipping of 
 women, and, instead of that relic of barbarism, was substituted for female oftenders, impri- 
 sonment or solitary confinement.f And, at the same time, an act for the better administra- 
 tion of justice in the court of exchequer chamber in Ireland.:): On the 21th July, 1820, 
 was passed the act which reduced the duties on distillation in Scotland, and for the belter 
 prevention of private distillation-, and which it is to be feared has greatly increased the 
 amount of public and private crime, by encouraging intemperance and idleness, y 
 
 On the 7tli May, 1831, an act received the royal assent for making further provision for 
 the gradual resumption of payments in cash by the bank of England, by an extension of the 
 act already recited, page 275, for the payment of notes in gold bars or ingots, authorizing 
 the btink of England to pay their own notes, or any other debt, on demand, in the current and 
 lawful coin of the realm, § The bearers of such notes are not entitled to demand ingots or 
 bars of gold. But pei-sons not offered to be paid in coin, are not deprived of their right to 
 demand ingots. This act also repeals that part of the former relating to the exportation of 
 molten gold. The bank of England have an option, when their notes are offered for ex- 
 change, of pa}ing either in one pound notes or in coin, as they shall think fit. A similar act 
 was also extended to Ireland.^ 
 
 On the 7th Maj-, the African company wholly ceased and determined, and no longer con- 
 tinued to be a body corporate or politic; and, by act of parliament, all grants made to them 
 were declared void, and they were divested of all forts, castles, buildings, possessions, or 
 estates which they formerly held on the gold coast of Africa, and the same shall henceforth 
 be fully and absolutely vested in his majesty, his heirs, and successors for ever. ** 
 
 The better regulation of the attendance of jurors at the assizes was enacted on the 8th J une, 
 1821. That from henceforth in any county in England and Wales, and the counties pala- 
 tine of Chester, Durham, or Lancaster, the sherili' or other officer to whom belongs the 
 return of the venire facias juralores, shall summon and impannel not more than one hundred 
 and forty-four jurors, or such lesser number as the judge shall think fit, to direct, to serve 
 indiscriminately on the civil and criminal side; which jurors shall be divided equally into 
 sets, the first set shall attend and serve for so many days at the beginning of each assize, and 
 the second set shall attend and serve for the residue of the assize. The summons for the 
 attendance must be endorsed on the back for which set the juror is summoned.f f The pro- 
 ceedings in the civil side of the court of king's bench, and also in the court of common pleas, 
 and in the pleas or common law side of the court of exchequer in Ireland, were newly re- 
 gulated by act of parliament, 15th June, 1821 t^t a"d, at the same time, the office of clerk 
 of assize, or nisi prius, or judges registrar in Ireland, were also regulated. It was enacted, 
 on the 10th July, 1821, that from that date any person rescuing, or aiding and assisting in 
 rescuing, persons charged with felony, shall be themselves guilty of felony, and liable to im- 
 prisonment for any term not less than one year, and not exceeding three years, or to be 
 transported for seven years, at the discretion of the court. Assaulting, beating, or wound- 
 ing any constable, &c. in order to obstruct or prevent apprehension, they shall be kept to hard 
 labour for any term not exceeding two years, and not less than six months. || II 
 
 An act, to amend certain provisions of a previous act, §§ for preventing clandestine mar- 
 riages, was passed on the 22nd July, 1822, and caused considerable confusion and discussion. 
 All that part of the statute of George II., which related to any subsequent marriage, 
 was repealed ; but all marriages, solemnized by license before this date, if not otherwise invalid, 
 were recognised as good and valid to all intents and purposes ; but this act did not renderany 
 marriage valid, which had been declared by competent authority to be invalid. It was de- 
 clared that this act should not affect or prejudice the rightand interest which any person may 
 
 • 1 Geo. IV., c. 19. + 1 Geo. IV., c. 57. X l^id, c. 68. || Ibid, c. 74. ^ 59 Geo. IIL, c 49. 
 H 1 & 2 Geo. IV., c. 26. ** 1 «& 2 Geo. IV., c. 28. +t 1 & 2 Geo. IV., e. 46. JJ 1 & 2 Geo. IV., c. 53. 
 il li 1 & 2 Geo. IV,, c. 88. §§ 26 Geo. II., c. 33. 
 
OF THE LAW OF ENGLAND. 283 
 
 have in titles of honour or of property, on the ground of former invalidity. The eighth 
 section provides, that no license for any marriage, after the 1st September, 1822, shall be 
 granted by any person having authority to grant licenses, until the parties make oath, that 
 they are respectively, or that each of them believes the other to be of the full age of twenty- 
 one years or upwards ; and if both parties are under the age of twenty-one years, whether 
 they are either a widower or widow respectively, then each shall make oath accordingly, 
 both as respects themselves, and of their belief respecting the opposite party ; and both par- 
 ties are to make oath, that the consent of«parents, or guardians, have been signitied. And 
 if either or both of the parties, shall be twenty-one years of age, the license shall not be 
 granted, until the parties shall have proJuced extracts from the registers of their baptism, if 
 such register be in England, and can be found : which extracts must be proved to be cor- 
 rect, by the oath of some other party. But if the register cannot be found, still the license 
 cannot be granted, unless the fact sliall be proved to the satisfaction of the party granting the 
 license, by some other person making oath, that he believes the parties to be of full age, and 
 stating the grounds of his belief. To all which the consent of guardians in writing, attest- 
 ed by two witnesses was required, whose oath was also farther necessary to prove the hand- 
 writing, and the right of the parent, or guardian, to give such consent. The fourteenth sec- 
 tion authorized the archbishops of^Canterbury and York, and the several other bishops, 
 within their respective dioceses, only to grant licenses. One of the parties must be resident 
 within the diocese of the bishop who grants the license, proved and certified by all the oaths 
 and formalities, as before mentioned. * This clause was repealed the following year, on the 
 7th March, 1833 ; and all marriages, solemnized in consequence of a license, granted sub- 
 sequent to the passing of the aforesaid act, by any body corporate, or person, or their surro^ 
 gate, contrary to the meaning of the aforesaid act, were held and declared to be valid ; and 
 the parties irregularly granting the licenses, were relieved from pains and penalties. Be- 
 fore the publication of banns, it was required by the act, that the parties made affidavits 
 in writing, of their names, ages, and places of residence, and delivered these to the minis- 
 ter, under a heavy penalty ; and besides, before the banns could be published, to affix the 
 names and surnames, and places of residence of the parties, with all the particulars already 
 specified, on the church doors, to remain until the three Sundays of publishing the banns 
 were expired. The church-wardens were obliged to preserve the affidavits in a chest, to 
 be provided for the purpose ; false names, however, did not void or invalidate the marriage ; 
 the act farther required, where no license was granted, that banns should be published on 
 three several Sundays f This absurd act created (as may easily be supposed from some of 
 its provisions,) the utmost confusion and inconvenience, and its tendency was much more 
 likely to encourage illegitimate intercourse, and contempt for the holy estate of matrimony, 
 than to induce the youth of either sex to enter into those sacred vows that bind society to- 
 gether, and man to leave father and mother, and cleave unto his wife, agreeably to the di- 
 vine institution, in the state of man's innocency in paradise. 
 
 The inconvenience of the preceding act was so great, that the whole kingdom of England 
 (to which only it was confined) made an unanimous call on the legislature for its repeal, 
 and accordingly on the 26th March, 1823, in addition to the 14th section already noticed, as 
 repealed, ^ the 8th and 26th, were by this act totally repealed, and licenses were per- 
 mitted to be granted by the same persons, and in the same manner as formerly, in the case 
 of minors, with the same consent, and banns to be published as heretofore ; without any of 
 the unpleasant machinery of oaths, and fixing on the church doors, as were enacted the pre- 
 vious year. A farther amendment was foimd necessary, to be made on the 18th July, 
 1S23, and 17th May, 1824, which greatly improved the act which caused so much confu- 
 sion. II 
 
 This year, on the 17th June, an act was passed to enlarge the powers of justices of the 
 peace, in hearing and determining complaints, between masters and servants, and between 
 masters, apprentices, artificers, and others; which authorized any master or mistress, 
 their stewards, manager's, or agents, to complain against any apprentice on oath, to any jus- 
 tice of the peace of the county or place for any misdemeanor, misconduct; or ill behaviour 
 
 * 4 Geo. IV. c. 5. +3 Geo. IV., c. 75. t 4 Geo. IV., c. 5. 
 
 II 4 Geo. IV., c. 17.— 4 Geo. IV,, c. 76.-5 Geo. IV., c. 32. 
 
284 RISE, PROGRESS, AND IMPROVEMENT 
 
 on the part of his apprentice ; or if he absconds, the justice of the peace is cinpowcrtd, upon 
 complaint on oath, being made to him, to issue a warrant for his apprehension : and, the 
 said justice can hear and determine the same complaint, and punish the ofi'ender, by abating 
 the whole, or any part ot his, or her wages, or by commitment to the house of correction, to 
 be held to hard labour for a reasonable time, not exceeding three months. * 
 
 On the 27th June, 1823, a new act was passed for the registry of vessels, wherein a 
 number of preceding acts were repealed, and their provisions were consolidated into one act ; 
 and it was declared, that no ship or vessel having a deck, or being of the burden of fifteen 
 tons or up^vards, shall be entitled to any of the advantages or privileges of a British ship, un- 
 til the persons claiming property in her, shall have caused the same to be registered, and 
 have obtained a certificate of the registry, from the persons impowered to give it; and in 
 case such vessel, shall exercise any of the privileges of a British ship, the same shall be sub- 
 ject to forfeiture. This act was again partially repealed, and the same, and some other pro- 
 visions enacted by a subsequent act. f 
 
 The laws respecting the interment of persons committing suicide, were partially altered; 
 formerly ^felo de se, or self murderer, was buried in a cross road, with a stake driven through 
 his body ; but now by this act, the coroner is empowered to direct his remains to be privately 
 interred in the church yard, and, without any stake driven through his body. But the 
 act prohibits the performance of aU Christian rites, that is, the solemn burial service to be 
 said at such funerals. | 
 
 The sum of £50,000, was voted by the commons, on the 18th July, 1823, for building 
 additional places of worship in the Highlands and Islands of Scotland, because, in various 
 parts of the country, the parishes are so extensive, that it was found impossible lor many oi 
 the inhabitants to attend divine service at the parish church, or for the minister to visit the 
 more distant parts. § 
 
 A. bill passed both houses of parliament, and received the royal sanction, on the 17th June, 
 1824, for ascertaining, establishing, and regulating uniformity in the weights and measures, 
 and which came into operation all over the three kingdoms, on the 1st May, 1825. The 
 distance between the centres of the two points in the gold studs, in the straight brass rod, 
 kept by the clerk of the house of commons, when at the temperature of 62 degrees, by V&r- 
 enheit's thermometer, is declared to be the genuine standard of the imperial }ard measure, 
 and the only standard measure of extension whatsoever, by which measures, whether hneal, 
 superficial or solid, shall be derived, computed, and ascertained. One third part of the said 
 brass rod, to be a foot, the twelfth part of such foot an inch ; the pole or perch, shall contain 
 five such yards and a half in length ; the furlong, two hundred and twenty; and the miJe, 
 one thousand seven hundred and sixty such yards. All superficial measure, shall be com- 
 puted and ascertained by the same standard jard, or by certain parts, multiples, or pro- 
 portions thereof : the rood of land, shall contain one liiousand two hundred and ten square 
 yards, of the imperial standard : an acre of land, shall contain four thousand eight hun- 
 dred and forty such square yards. The standard brass weight of one pound Troy weight, 
 made in the year 1758, now in the custody of the clerk of the house of commons, is defined 
 to be the standard measure of weight. The standard measure of capacity, both for liquids 
 and for dry goods, that are not measured by a heaped measure, shall be the gallon, contain- 
 ing ten pounds of avoirdupois weight of distilled water, weighed in air, at the temperature of 
 62 degrees, of Farenheit's thermometer, the barometer being at 30 inches, and which is de- 
 clared to be the unit, and only standard measure of capacity, by which wine, beer, ale, 
 spirits, and all sorts of liquids and dry goods, not measured by heaped measure, sliall be de- 
 rived, computed, and ascertained ; of which the quart shall be one fourth, the pint one eightli; 
 two such gallons shall be a peck, and eight such gallons shall be a bushel, and eight such 
 bushels shall be a quarter of com, or other dry goods, not measured by heaped measure ; 
 coals, culm, lime, fish, potatoes, or fruit, and all other things sold by heaped measure, shall 
 be measured by the aforesaid bushel, containing eighty-four pounds avoirdupois, as before, 
 the same being made round, with a plain and even bottom, and nineteen inches and a half, 
 from outside to outside. In heaped measure, the heap to be in tlie shape of a cone, of the 
 
 4 Geo. IV., c. 34. t 4 Geo. IV., c. 41.— C Geo. IV., c lie 
 
 % 4 Geo. IV., c. 52, ? 4 Geo. IV., c. 79. 
 
OF THE LAW OF ENGLAND. 285 
 
 height of at least six inches ^ three such bushels shall be a sack, and twelve such sacks a 
 chcildron of coals. * 
 
 Mr Joseph Hume introduced a bill into parliament for the repeal of all the luws relative 
 to the combination of workmen, and which finally pi^ed on the 21st June, 1824. This act 
 repealed some acts partially and others entirely, from 33 Edward I. to the 57 George I II. ; to- 
 gether with all other laws, statutes, and enactments now in force throughout any part of the 
 united kingdom relative to combination, to obtain an advance of wages, or to lessen or alter 
 the hours or duration of tlie time of working, or to decrease the quantity of work, or to re- 
 gulate or control the mode of carrying on any manufacture, trade, or business, or its man- 
 agement ; relative to combinations, to lower tlie rate of wages, or to increase or alter the 
 hours or duration of the time of working, or to increase the quantity of vrork, or to regulate 
 or control the mode of carrying on any manufacture, &c, ; relative also to fixing the amount 
 of the wages of labour, or to oblige workmen, not hired, to enter into work : together with 
 any other enactment, enforcing or extending the application of anj' of the aforesaid acts or 
 enactments, are by this act repealed. This act exempts workmen from punishment under 
 the statute law who enter into combinations ; and masters offending, in like manner, are 
 also protected from proseculion.f At the same time an act was passed consolidating and 
 amending the laws relative to the arbitration of disputes betwixt workmen and their mas- 
 ters:^ and also to repeal the laws previously in force for prohibiting artificers from going 
 abroad, so that an artisan is now free to carry his industry to any part of the globe where he 
 chooses. !| 
 
 Parliament were not inattentive to the gradual increase of public opinion on the traffic in 
 slaves, between the great slave mart, Africa, and our West Indian colonies; and accordingly 
 an act passed both houses, and received the royal assent on 24th June, 1824, repealing all 
 acts relating to the slave trade, and tlie exportation and importation of slaves into any of our 
 colonies : the purchase, sale, or contract for slaves was declared to be illegal, making loans 
 or guarantees —the shipping of goods for their purchase, and the serving on board vessels for 
 any such purpose, or insuring vessels or slaves, were declared to be unlawful, and under a 
 penalty of £100 for each slave. Dealing in slaves on the high seas to be deemed pirac)', 
 and the penalty of death awaided on conviction. Nothing, however, in this act interferes 
 witli the owners of slaves already domesticated in our colonies, who may be employed on the 
 high seas, or any where else at their masters' option. This act embodies the treaty between 
 Great Britain and Portugal, signed at Vienna, 22d January, 1815, for the suppression of 
 the ^ave trade, by the Portuguese to the north of the equator, signed by the late lord 
 Castlereagh and the viscount Palmella ; a treaty with the court of Spain, signed at INladj id, 
 23d September, 1817; also a treaty with the king of tlie Netherlands, for preventing their 
 subjects engaging in any traffic in slaves, signed at the Hague, 4th May, 1818 ; besides ad- 
 ditional articles, notes, and instructions entered into with all these powers. The act allows a 
 bounty of £10 for every man, woman, and child slave found on board any captured slave 
 ship after condemnation, to be paid out of the consolidated fund.§ 
 
 On the 10th June, 1825, an act passed through parliament to enable the lords of the trea- 
 sury to purchase from Jolin, duke of Athole, the right of sovereignty, which that nobleman 
 held as heir of the seventh earl of Derby, who was king of Man, and to annex the same to 
 the imperial crown for ever.^ The law of Scotland regarding leasing-making, sediiiwi and 
 blasphemy, which were subject to a very severe penalty, has been assimilated to the law of 
 England ; and, therefore, for the first offijnce, under any of these heads, the offender is liable 
 to fine or imprisonment at the discretion of the court; for the second, both fine and impri- 
 sonment, or to be banished from the king's dominions, at discretion ; and if the offender wIk) 
 lias been sentenced to banish himself out of the king's dominions, shall be found at large 
 forty days afterwards, he may then be trajisported for fourteen years,** 
 
 An act w~ds passed this year for the more easy recover} of small debts in Scotland, em- 
 powering justices of the peace to hear and determine causes and complaints under five 
 pounds. The act enjoins that a copy of the complaint, warrant, citation, and amount of 
 debt shall be delivered at same time to the defender ;;ersona%, or left at his dwelling place ; 
 
 * 5 Geo. IV., c. 74. t 5 G«o. IV., c. 95. * Do. c. 96. || 5 Geo. IV., c. 97. 
 
 & 5 Geo. IV. c. 113. 1[ 6 Geo. IV. c. 34. *• Geo. IV. c. 47. 
 
286 RISE, PROGRESS, AxND IMPROVEMENT 
 
 if not cited personally he must be cited personally a second time, with the words de noro, 
 acided : and in the event of tlie defender not appearing in court, he is held as acknowledg- 
 ing the debt or justice of the demand. Constables must cite witnesses, whose attendance 
 may be compelled under a penalty not exceeding twenty shillings. No procurator, solicitor, 
 writer, or attorney is allowed to appear as agent either for plaintiff or defendant, but both 
 parties must plead their own causes viva voce, and upon oath, if so required. Athough the 
 non-appearance of the defender is held as confessing the debt, yet he may send an excuse by 
 any member of his family, which, if it appears reasonable to the court, the jus- 
 tices may adjourn the cause to the following court day. And the court may hear either 
 party by a member of either of their families, or by any person, not being a legal practi- 
 tioner, holding a written mandatory from them, if the court thinks fit. After judgment, or 
 decree is pronounced, a warrant for execution is granted, which cannot be enforced till after 
 the expiry of ten free days from the date of pronouncing the decree ; the charge to be 
 given by the constable or peace officer, either personally or by leaving the same at his 
 dwelling-house. But this act does not extend to any debt where the titles of lands, or heredi- 
 taments, wills, testaments, or marriage contracts, are involved, although the debt may not 
 amount to five pounds : nor to any debt or thing won by gaming, betting, or play of any 
 kind, or any demand for spirituous liquors.* 
 
 The laws relative to qualification and summoning of jurors, and the formation of juries in 
 England and Wales, being both numerous and complicated, it was found expedient to con- 
 solidate and simplify them. Accordingly a bill was introduced into parliament, and finally 
 received the royal sanction on the 22d June, 1825, which enacted, that any man between the 
 ages of twenty-one and sixty years, who, either in his own name or in trust, is seised of 
 certain hereditaments, whether of freehold, copyhold, or customary tenure, shall be quali- 
 fied and liable to serve in juries for the trial of all issues joined in any of the king's courts of 
 record at Westminster, in the superior courts of the three counties palatine, in all courts of 
 assize, nisi prius, oyer and terminer, and gaol-delivery, in the counties in which they respec- 
 tively reside — both as grand and petty jurors. No alien, nor man attainted of treason or 
 felony, or convicted of any infamous crime, unless he has received a free pardon, nor any 
 man under outlawry or excommunication, is qualified to serve on any jury. The proper 
 officers must summon the jurors ten days before attendance is required ; and for special 
 juries, three da)s. When a jury have not given their verdict, other twelve may be sworn 
 for other issues, that no time may be lost: and, if not objected to, the same jury may try 
 several issues in succession without being redrawn. Any man returned as a juror, may be 
 challenged and set aside if he has not the qualification required by law, and he must be 
 discharged if the court be satisfied of the fact ; but no person arraigned for murder is ad- 
 mitted to any peremptory challenge above the number of twenty. No man o^in be again 
 returned as a juror, who has served at nisi prius, or gaol- delivery, in the county of Middle- 
 sex in either of the two terms next immediately preceding, or in the other counties, &c., 
 who has served within one year preceding. No sheriff or other officer can, under any pre- 
 tence whatever, take or receive any money or reward to excuse a man from serving or from 
 being summoned to serve on juries.f 
 
 The provisions of the late act,t repealijig all the laws relative to tlie combination of work- 
 men, not having been found effectual, — such combinations being injurious to trade and com- 
 merce, and highly prejudicial to the peace and prosperity of the kingdom,— it was found ne- 
 cessary to make farther provision, as well for the security and personal freedom of the 
 individual workmen in the disposal of their skill and labour, as for the security of the persons 
 and properly of their masters and employers, and therefore the former act was repealed. It 
 is now enacted, that if any person, by violence to the persons or property, or by threats or inti- 
 midation, or any manner of molesUition or obstruction, shall force, or endeavour to force, any 
 journeyman, &c., to depart from his hiring, employment, or work, before the same shall be 
 finished, or prevent any journeyman, &c., from hiring himself to, or from accepting work, 
 &c., from any person ; or if any person use or employ violence to another's person or pro- 
 perty, or by threats, molestation, or any obstruction, force or induce any person to belong to 
 
 *fi Geo. IV. c. 48. t 6 Geo. IV. c. 50. j 5 Geo. IV. c. 95. 
 
OF THE LAW OF ENGLAND. 287 
 
 any club or association, or contribute to any common fund, or to pay any fine or penalty for 
 not belonging to such club, or for his not having complied, or refusing to comply, with any 
 rules, orders, resolutions, or regulations made to obtain an advance, or to reduce the rate of 
 wages, or to lessen or alter the hours of working, or to decrease or alter the quantity of 
 work, or to regulate the mode of carrying on any manufacture, &c., or its management : or 
 if any person shall by violence to the person or property of another, or by threats, intimida- 
 tion, molestation, or obstruction, force, or endeavour to force, any manufacturer, &c., to make 
 any alteration in his mode of regulating, managing, conducting, or carrying on such manu- 
 facture, Ssc. ; or to limit the number of his apprentices, journeymen, workmen, or servants : 
 every pei-son so offending, aiding, abetting, or assisting, on conviction, shall be imprisoned, 
 and may be kept to hard labour for any time not exceeding three calendar months. But 
 this act is not meant to interfere with regular meetings for the purpose of settling rates of 
 wages to be received, or the hours of labour to be employed by the persons meeting. The 
 act also very properly debars a master in any particular trade or manufacture, Stc., from 
 acting as a justice of the peace in any case where the offence is charged to have been 
 committed under this act.* 
 
 The laws received a more extensive reformation during the short reign of George IV. 
 than any previous age had experienced; for much of which we are indebted to tlie en- 
 lightened exertions of Sir Robert Peel ; his acts relate chiefly to offences against individuals, 
 and to the administration of the criminal law generally: in connexion with this, lord Lans- 
 doAvne introduced a law, which relates chiefly to offences against the person, and which will 
 be afterwards narrated in its proper place. And as the following act is of considerable im- 
 portance, as making such fundamental changes and improvements in the administi-ation of 
 criminal justice in England, we shall give it entire, divested however of its technicalities. 
 It was passed, and bears date, 26th May, 1826. 
 
 L Whereas, it is expedient to define under what circumstances persons may be admitted 
 to bail in cases of felony ; and to make better provision for taking examinations, informa- 
 tions, bailments, and recognizances, and returning the same to the proper tribunals : and, 
 whereas, the technical strictness of criminal proceedings might in many cases be relaxed, so 
 as to insure the punishment of the guilty, without depriving the accused of any just means 
 of defence ; and the administration of justice in that part of the united kingdom called 
 England, might in otlier respects be rendered more effectual. Be it therefore enacted, Stc., 
 that when any person shall be taken on a charge of felony, or suspicion of it, before one or 
 more justices of the peace, and the charge supported by positive and credible evidence ot 
 the fact, or by such evidence as creates a strong presumption of guilt ; such person shall be 
 committed to prison by such justices in manner herein described : but if there be only one 
 justice present, and if the evidence be such as neither to raise a presumption of guilt, nor to 
 warrant a dismissal of the charge, such justice shall detain the accused party, until he or she 
 can be taken before two or more justices ; and if the evidence given before them shall not, 
 in their opinion, be such as to raise a strong presumption of guilt, nor to require committal, 
 but yet, notwithstanding, it shall appear to them that there is good ground for judicial in- 
 quiry, then the accused person shall be admitted to bail. 
 
 II. And before the justices of the peace shall admit to bail, or commit to prison any 
 person arrested for felony, or, on suspicion of it, shall take the examination of such person, 
 and the information on oath of those acquainted with the facts and circumstances of the 
 case, and shall put as much thereof as is material in writing : and the two justices shall cer- 
 tify such bailment in writing, and shall have authority to bind all who know or declare any 
 thing respecting the felony, to appear at the next court of 03 er and terminer, &c., where the 
 trial is to be, to prosecute and give evidence accordingly. The justices shall subscribe and 
 deliver the examinations into court. 
 
 III. The third section is a repetition nearly of the former, respecting the duty of justices 
 on charges of misdemeanor. 
 
 IV. Relates to the duty of the coroner, who, on any inquisition where any person shall be 
 indicted for manslaughter, or murder, or the accessories, shall put the material parts of the 
 
 * 6 Geo. IV. c. 129. 
 
288 RISE, PROGRESS, AND IMPROVEMENT 
 
 evidence in writing ; and has authority to bind all persons by recogniz.inces who have given 
 evidence, to prosecute. 
 
 V. Any justice or coroner offending in any thing contrary to the true intent and meaning 
 of these provisions, shall on a summary proof be fined. 
 
 VI. Those provisions relating to justices and coroners shall be applicable, not only to the 
 counties at large, but to all other jurisdictions. 
 
 VII. This provides for all felonies with and without benefit of clergy, but as a subse- 
 quent act wholly abolished this privilege, the clause is rendered unnecessary.* 
 
 VIII. And with regard to clergyable offences, if any person shall be indicted of any 
 felony, which entitles the offender to the benefit of clergy, and on arraignment such person 
 shall confess the felon)', or stand mute of malice, or will not answer directly to the charge, 
 or shall peremptorily challenge above the number of twenty jurj'men, or shall be outlawed 
 upon such indictment, then the offender and accessories shall be deemed and taken to be 
 convicted of the felony ; and the couit shall award such judgment as if he had been con- 
 victed by verdict. 
 
 IX. If any person shall counsel, procure, or command, any other person to commit any 
 felony, whether at common law, or by virtue of any statutes, the counsellor shall be deemed 
 guilty of felony, and may be indicted or convicted either as an accessory before the fact to the 
 principal felony, or after the conviction of the principtd felon, maybe indicted and convicted 
 of a substantive felony, whether the principal shall or shall not have been convicted or amen- 
 able to justice, and may be punished in the same manner as any accessory convicted as such 
 before the fact ; and the accessory's ofience may be inquired of, tried, determined, and pun- 
 ished by any court having jurisdiction to try the principal felon, wherever the offence may 
 have been committed : if the principal felony shall have been committed in one county, and 
 the accessory's offence in another, the accessory's offence may be tried in either of such 
 counties. 
 
 X. Contains provisions to the same effect as the preceding section. 
 
 XI. If any principal offender shall be in any wise convicted of any felony, he shall be 
 proceeded against, either before or after the fact, in the same manner as if the principal 
 felon had been duly attainted, even although the principal should die, or be admitted to 
 benefit of clergy, f or pardonetl, or otherwise delivered before attainder : and the accessory 
 shall suffer the same punishment, as, if convicted, he should have suffered, if the principal 
 had been attainted. 
 
 XII. Provides for the trial of oflences committed on the boundaries of counties, which 
 may be tried in either county. 
 
 XIII. Offences committed on any person, or property in any coach, waggon, cart, or 
 other carriage employed in any journey ; or on board of any vessel employed on any voyage, 
 navigable river, canal, or inland navigation, may be dealt with, inquired of, tried, deter- 
 mined, and punished in any county through any part whereof such of the above vehicles 
 shall have passed in the course of the journey or voyage : and in all cases where the side, 
 centre, or other part of any highway. So;., or canal, &c., shall constitute the boundary of any 
 two counties, such felony may be tried and determined in either of the said cx)unties, in the 
 same manner as if it had actually been committed in such county. 
 
 XIV. In any indictment of information for any felony, &c., wherein it shall be neces- 
 sary to state the ownership of any property, whether real or personal, which belongs or is in 
 the possession of more than one person ; whether they be partners in trade, joint tenants, 
 parceners, or tenants in common ; it shall be sufficient to ruime one of such persons, and to 
 state that the pioperty belongs to him, and any others as the case may be; and the above 
 description is sufficient for indictments or informations, and the meaning of this provision 
 extends to all joint-stock companies and trustees. 
 
 XV. In any indictment or information for a felony, &c., committed in or upon any bridge, 
 court, gaol, house of correction, infirmary, asylum, or other building erected or maintained 
 in whole or in part at the expense of any county, riding, or division, or on or with respect to 
 any goods, chattels, &c., provided at their expense, and to be used in repairs or alterations of 
 any of these public institutions; it shall be sufficient to state that such property, real or per- 
 
 7 & 8 Geo. IV., c. 28. • i Benefit of clergy is now abolished. 
 
OF THE LAW OF ENGLAND. 289 
 
 Ronal, belongs to tlie inhabitants of such county, &c., without specifying the names of any of 
 the inhabitants. 
 
 XVL In any indictment for felony on any workhouse, poorhouse, or goods, 8sc. pro- 
 vided for the use of the poor of any parishes, townships, hamlets, or places ; or to be used in 
 any workhouse, or poorhouse, or to the master or mistress, or servants of the same, it shall 
 be sufficient to state such property to belong to the overseers of the poor for the time being, 
 without specifying all or any of their names : and in felonies on materials, tools, or imple- 
 ments for altering or repairing the highways within any parish, &c. otherwise th.in by the 
 the trustees or commissioners of any turnpike road ; it shall be sufficient to aver, that such 
 things are the property of the surveyore of the highwjiy for the time being, and it is not ne- 
 cessary to specify any of their names. 
 
 XVII. With respect to any indictment or information for felony or misdemeanor, com- 
 mitted on any house, turnpike or other property of any description, belonging to any turn- 
 pike road, it is sufficient to state that such property belongs to the trustees or commissioners 
 for the time being, without specifying their names. 
 
 XVIIL Any indictment, &c. for felony, &c. committed on any sewer, or other matter 
 within or under the view, cognizance, or management of any commissioners of sewere, it is 
 sufficient to state that such property belongs to the trustees or commissioners for the time be- 
 ing, without specifying their names. 
 
 XIX. No indictment or information shall be abated by reason of any dilatory plea of mis- 
 nomer or want of addition, or of wrong addition of the party ollering such plea, if the court 
 shall be satisfied by affidavit or otherwise of the truth of such plea ; but in such case the 
 court shall forthwith cause the indictment or indictments to be amended according to the 
 truth, and shall call upon such party to plead thereto, and shall proceed as if no such dila- 
 tory plea had been advanced. 
 
 XX. No judgment upon any indictment or information for any felony or misdemeanor, 
 whether after verdict or outlawry, or by confession, default, or otherwise, shall be stayed or 
 reversed for want of the averment of any matter necessary to be proved, nor for the 
 omission of the words, " as appears by the record ;" or of the words, " with force and arms-," 
 or of the words, " against the peace ;" nor for the insertion of the words, *' against the form 
 of the statute ;" instead of the words, *' against the form of the statutes,'' or vice versa ; nor for 
 that any person or persons mentioned in the indictment or information, is or are designated 
 by a name of office, or other desciiptive appellation, instead of his, her, or their proper 
 names; nor for omitting to state the time at which the offence was committed, in any case 
 where time is not of the essence of the offence ; nor for stating the time imperfectly, nor for 
 stating the offence to have been committed on a day subsequent to the finding of the indict- 
 ment or exhibiting the information, or on an impossible day, or on a day that never hap- 
 pened ; nor for want of a proper and perfect venue, when the court shall appear by the in- 
 dictment or information to have had jurisdiction over the ofience. 
 
 XXI. No verdict after judgment for any felony, &c. shall be stayed or reversed for want 
 of a similiter, nor by reason that the jury process has been awarded to a wrong officer, upon 
 an insufficient suggestion ; nor for any misnomer or misdescription of the officer returning 
 such process, or of any of the jurors ; nor because any person has served on the jurj' who has 
 not been returned as a juror by the sheriff or other officer; and that where the offence 
 charged has been created by any statute, or subjected to a greater degree of punishment, the 
 indictment shall, after verdict, be held sufficient to warrant the punishment prescribed b} 
 the statute, if it describe the offence in the words of the statute. 
 
 XXIL The court before which any pereon shall be prosecuted or tried for any felony, is 
 hereby authorized and empowered, at the request of the prosecutor, or of any other person 
 who shall appear on recognizance or subpoena, to prosecute, or give evidence against any per- 
 son accused of felony, to order payment to the prosecutor of the costs and expenses incurred 
 by the prosecutor •, as also such sums of money as the court shall think reasonable and suffi- 
 cient to reimburse the prosecutor and witnesses, for the expenses tliey have severally incurrefl 
 in attending before the magistrates and grand jury, or in otherwise carrying on such pro- 
 secution ; and also a compensation for their trouble and loss of time. It shall be still lawful 
 for the court, when, in tlie opinion of the court, any pereon shall have attended in obedience 
 of any such recognizance or subpoena — even although no indictment had been preferred— 
 
 20 
 
390 RISE, PROGRESS, AND IMPROVEMENT 
 
 to order payment to such person of such sum of money as the court shall think I'easonabl*, 
 for reimbursing their expenses and loss of time. And the expenses and remuneration shall 
 be ascertained by the magistrates' certificate, granted before the trial, &c. 
 
 XXIII. Many individuals having heretofore been deterred by the expense from pro- 
 secuting persons guilty of misdemeanors, who consequently escape the punishment due to 
 their oflences; for remedy it is enacted, that when any prosecutor or other person shall ap- 
 pear before any court on recognizance, or subpoena, either to prosecute or give evidence 
 against any person indicted of any assault, with intent to commit felony; of any riot, of any 
 misdemeanor, for receiving stolen property, knowing the same to have been stolen property, 
 of any assault upon a peace officer in the execution of his duty, or upon any person in aid 
 of such officer, of any neglect or breach of duty as a peace officer, of any assault committed 
 in pursuance of any conspiracy to raise the rate of wages, of knowingly and designedly ol)- 
 taining any property by false pretences, of wilful and indecent exposure of the person, of 
 wilful and corrupt perjury, or its subornation •, every such court is hereby authorized and 
 empowered to order payment of the costs and expenses of the prosecutor and witnesses, to- 
 gether with a compensation for trouble and loss of time, and this even if there should not 
 iiave been a bill of indictment preferred. 
 
 XXIV. The officer of the court, shall forthwith make out and deliver an order to the pro- 
 secutor, on payment of the sum of one shilling for the prosecutor and sixpence for each other 
 person, on the treasurer of the county, riding or division, in which the oflence shall either 
 have been, or supposed to have been committed ; who is hereby authorized on sight of such 
 order, forthwith to pay it. 
 
 XXV. And, as felonies and misdemeanors may be committed in liberties, franchises, 
 cities, towns and places, which do not contribute to the paj ment of any county rate ; but 
 some of which raise a rate, in the nature of a county rate ; therefore, such costs and expenses, 
 shall be paid out of the rate raised by these places, in the nature of a county rate; or out of 
 any fund applicable to similar purposes. 
 
 XXVI. For the better regulation of costs and expenses, it shall be lawful for the justices 
 of the peace to establish, and from time to time to alter such regulations, as to the rate of any 
 costs and expenses, to be afterwards allowed ; and which regulatiojis, having received the ap- 
 probation and signature of one justice of gaol-delivery, or of great sessions for the count} ; 
 shall be binding on all persons in it whatsoever. 
 
 XXVII. The judge of the court of admiralty, in all similar cases of felony committed on 
 the high seas, is empowered to order the assistant to the counsel for the aflkirs of the admi- 
 ralty and navy, to pay such costs, expenses, and compensation to prosecutors and witnesses ; 
 in like manner as other courts may order the treasurer of the county to pay the same. 
 
 XXVIII. When any persons shall appear to any court of oyer and terminer, &c,, to 
 have been active in the apprehension of any person charged with murder, or with feloni- 
 ously, and maliciously shooting at, or with stabbing, cutting, or poisoning, or administering 
 any thing to procure miscarriage, oi' with rape, or with burglary, or felonious house-break- 
 ing, or with robbery on the person, or with arson, or with horse-stealing, bullock-stealing, 
 sheep-stealing, or their accessories: the court is authorized and empowered to order the 
 sherifTof the county, &c,, to pay to such assistant such sum of money, as the court shall 
 deem a reasonable and sufficient compensation for expense, exertions, and loss of time. 
 
 XXIX. Every order for payment in the above cases, shall be made out, and delivered to 
 the proper officer of court, on being paid five shillings; and the sherifl is authorized upon 
 sight of such order, to pay the same, who may claim repayment of the same from the trea- 
 sury. 
 
 XXX. If any man shall happen to be killed, in endeavouring to apprehend any criminal, 
 the court, before whom the criminal shall be tried, shall order the sheriff of the county 
 to pay to the widow of the man so killed, or to his children, or to his father and mother, as 
 the case may be, such sum of money as the court in its discretion shall think fit. 
 
 XXXI. The practice of indiscriminately estreating recognizances, for the appearance of 
 piosecutors, or evidence, having been found frequently productive of hardship ; it is there- 
 fore enacted, that in any case where persons bound by recognizimce, shall therein make de- 
 fault •, the officer who makes out the eslreaty, is required to make out a list in writing, speci- 
 
OF THE LAW OF ENGLAND. 291 
 
 fyhig the name of every person making default, and the nature of the oflence, with the 
 residence, trade, profession, or calling of both the person and his sureties, distinguishing the 
 principal from the sureties, stating the cause (if known),' why such persons have not ap- 
 peared, and whether by their non-appearance the ends of justice have been defeated or de- 
 layed ; and, before recognizances are estreated to lay such list before one of the justices of 
 the superior courts of record, who are respectively authorized and required to examine the 
 list, and make such order, touching the estreating or putting in process any such recog- 
 niz:mce, as shall appear to them respectively to be just. And it shall not be lawful for the 
 officer of any court to estreat or put in process any such recognizance without the written or- 
 der of the justice, recorder, corporate officer, chairman, or justices of the peace, before whom 
 respectively such lists shall have been laid. 
 
 XXXII. Repeals either partially or entirely, all acts relating to this subject, from the 
 reign of Edward L, to the date of this act, except so far as any of the said acts relate to 
 Scotland or Ireland, or repeal the whole or any part of any other acts, and except as to of- 
 fences committed before the passing of this act.* 
 
 On the I2th April, 1827, parliament regulated the mode of payment of bills of exchange 
 arid promissory notes which may fall due on Good-friday, or on Christmas day, so that if 
 bills or notes are dishonoured on the day preceding either of these two days, it is not necessary 
 for the holders to give notice of the dishonour until the day after Good-friday and Christmas 
 day, and if Christmas day should fall on a Monday, although bills are in consequence payable 
 on the preceding Saturday, yet notice of their dishonour is not to be given till Tuesday, be- 
 ing the day after Christmas day, on the 25th December, which notice is valid to all intents and 
 purposes. And in all cases where bills and promissory notes fall due on any day appointed by 
 his majesty's proclamation for a day of solemn fast or thanksgiving, the same shall be pay- 
 able on the day next preceding, and in case of non-payment, may l;e noted and protested on 
 such preceding day; but it is not necessary for the holders to give notice of the dishonour 
 until the day next after such fast or thanksgiving day, nor till the Tuesday after, if the fast or 
 thanksgiving day be appointed on a Monday. And from the date of this act, Good-friday, 
 Christmas day, and every fast and thanksgiving day appointed by the king, shall be treated 
 and considered for all purposes whatsoever, as regards bills and promissory notes as the Lord's 
 day, commonly called Sunda\. But it is expressly provided that no part of this act shall ex- 
 tend to Scotland, f 
 
 Many dangerous accidents, and even the loss of life having occurred, not only to trespass- 
 ers, but even to the innocent, through the setting of spring-guns, traps, Sfc, this same par- 
 liament enacted, that from the 28th May, 1827, whosoever shall set, or cause to be set, any 
 spring-gun, man-trap, or other engine calculated to destroy human life, or inflict any grie- 
 vous bodily harm on trespassers, shall be guilty of a misdemeanor. But this prohibition 
 does not extend to traps, &c., for the intention of destroying vermin. If any pereon coming 
 into possession, shall allow traps, &c., to remain, though set up by his predecessor, shall be 
 considered as guilty as if he had set them up himself. But spring-guns, &c., set in a dwell- 
 ing-house for its protection are lawful, and do not come wifjiin the meaning of this act. 
 Those setting spring-guns previous to the passing of this act were not liable to any punish- 
 ment, and it is excepted from extending to Scotland, t 
 
 The frequent occurrence of cases of fraudulent bankruptcies in Scotland, occasioned the 
 passing of an act, giving the court of justiciary jurisdiction to try them : Accordingly, after 
 the 28th May, 1827, it is lawful to prosecute all persons accused of fraudulent bankruptcy in 
 Scotland, before the high court or any circuit court of justiciary by indictment or criminal 
 fitters, and according to the same forms and course of proceedings as is usual in other oflences 
 J rosecuted before the said courts •, and the judges are authorized and empowered to try all 
 
 * 3 Ed, I., c. 5—17 Hen. V.— 9 Hen. V., c. 1.— IS Hen. VI., c. 12.— 23 Hen. VI., c. 9—1 Rich. IH. c. .^ 
 3 Hen. VlT.,c. 3.-25 Hen. Vin.,c.3.— 32 Hen. VIII., c. 3.— 2&3 Ed. VI., c. 24.— 5 & 6. Ed. VI., c. ic 
 1 & 2 P. & M. c. 13.— 2 & 3 P.& M, c. 10.— 4 W. M. c. 8.— 10 & 11. W. III. c 23.-1 Anne. c. 9. Vulgo. 
 5 Anne c. 31.— 6 Geo I. c. 23.-25 Geo. 11- c. 36 — 27 Geo. IL c. 3.— isGeo. III.c. 19.— 43 Geo. III. c. 59. 
 43 Geo. III., c. 113 — 56 Geo. III., c. 73.-58 Geo. III., c. 70.— 59 Geo. III., c. 27.-59 Geo. III., c. P(i. 
 1 Geo. IV., c. 102.— 3 Geo. IV., c. 38.-3 Geo. IV., c. 126.-6 Geo. IV., c. 56. 
 
 + 7 & 8 Geo. IV., p. 15. J 7 & 8 Geo. IV., c. 18. 
 
292 RISE, PROGRESS, AND IMPROVEMENT 
 
 cases of fraudulent bankruptcy, and to inflict such punishment as is competent for tliose 
 judges to award against persons convicted of the said crime. The act also enables trustees 
 or any creditor whose claim has been received and duly ranked, with the concurrence of the 
 lord advocate, to prosecute in either of these courts, without prejudicing the public prose- 
 cutor's title. * 
 
 The next act we shall have to notice, is the repeal of various statutes relating to larceny, 
 and their consolidation into one general act. Larceny or theft is distinguished by the law into 
 two sorts ; the one is called simple larceny, or plain theft unaccompanied with any other 
 atrocious circumstance, and the other is mixed or compound larceny, in which is also includ- 
 ed, the aggravation of taking from one's house or person. Formerly, the stealing of goods 
 above the value of twelve pence, was called grand larceny, and of that value or under, petit 
 larceny, but the act to be recited abolished this distinction. Larceny, implies a taKing any 
 thing away without the owner's consent ; and it is now fully established, that in all cases 
 where horses and carriages are hired and never returned, if the jury are of opinion from the 
 circumstances, that the persons to whom they are delivered intended at the time of hiring 
 never to restore them, or that the intention to steal them or convert them to their own use 
 existed in their minds at the time they gained possession, they are guilty of felony. And 
 when a person hires a horse for a particular time, or to go a specific journey, and, after comply- 
 ing with the terms of the special agreement, sellsit ; his possession being then unsupported by 
 any privity of contract, or consent of the owner, he is held to be guilty of felony. And it is 
 now also generally held, that if the possession of property is obtained by any contrivance a »t- 
 imo furandi, as by pretending to find a valuable ring, cutting cards, or laying wagers, or 
 1>y undertaking to exchange a note into cash, or gold into silver, it amounts to felony. But 
 nhen the sale of a horse or any other article is complete, and possession delivered to the 
 bu} er, who rides away with the horse, or carries ofl" the article, without paying for it, no 
 felony is committed. For in that aise, both the property and possession is parted with, and 
 the owner is defrauded, not of the horse or article, but only of its price, and he has his re- 
 medy by an action to recover it. It is now stated as the resuli of all preceding cases, that if 
 a person obtain the goods of another by a lawful delivery without fraud, though he after- 
 wards convert them, it is not felony: but if such delivery be oI)tained by any fraud or false- 
 hood, and with an intent to steal, though under pretence of hiring, or even of purchase, (if 
 in the latter case, it was not intended to give credit,) the delivery in tact, by the owner, 
 will not pass the legal possession, so as to save the party from the guilt of felony. But if the 
 property were intended to pass by the delivery, there can be no felonious taking. 
 
 If a purse is tied to the pocket by a string, or goods to a counter in a shop, and the purse 
 is taken out of the pocket, or the goods from the counter, yet the larceny is not complete, if 
 the string remain unbroken. But where a man snatched an ear-ring from a lady's titr, and 
 afterwards dropt it in her hair, it was held to be a sufficient carrying away to constitute a 
 robbery. The removal of a parcel from one end of a waggon to the other, with an intent to 
 steal, amounts to a larceny : but in a case where a bale of goods was raised, and placed upon 
 its end, in a perpendicular posture, this was not thought to be a sufficient carrying away, 
 there not having been a complete removal from the space it before occupied. And also when 
 a man was stopped and ordered by the prisoner to put a parcel down upon the ground, which 
 he was carrying, but which the prisoner did not afterwards take up ; this was not held to be 
 a sufficient carrying away, to complete the crime of robber)'. In another case, in which the 
 prisoner had lifted a bag from the bottom of the boot of a coach, but was detected before he 
 got it out; it did not appear thattit was entirely removed from the space it at first occupied 
 in the boot, but the raising it from the bottom, had completely removed each part of it from 
 the space which that specific part had previously occupied. The judges held this to be u 
 complete aportation, or carrying away, f 
 
 The various enactments in the reign of George III., have made the most essential and 
 fundamental alterations in the law, respecting the subjects of the benefit of clergy, larceny, 
 and other offences connected therewith, but particularly an act passed 21st June, IS27; the 
 preamble to which announces, that " it is expedient to repeal various statutes now in force in 
 
 * 7 & 8 Geo, IV., c. 20. t Professor Christian's notes on Blackstoae, 
 
OF THE LAW OF ENGLAND. 293 
 
 that part of the united kingdom called England, relative to the benefit of clergy ; and it js 
 also expedient to repeal various statutes relative to larceny, and other offences of stealinij, 
 and to burglary, i-ubbery, and threats for the purpose of robbery, or of extortion, and to 
 embezzlement, false pretences, and the receipt of stolen property, in order that the provi- 
 sions contained in those statutes may be amended, and consolidated into one act ; and it is 
 also expedient with the same views to repeal various statutes, relative to malicious injuries 
 to property ; and also, with the same view to repeal various statutes relative to remedies 
 against the hundred," Therefore, all statutes creating subjects of larcenj-, which did not 
 exist at common law, from the 9th Henry IIL, to the 7th George IV., c. 69, are repealed, 
 except such as relate to the post office, or to any other branch of the public revenue, or lo 
 the public stores, bank of England, or the south sea company.* 
 
 And on the same date, another act was passed, for consolidating and amending tlie laws 
 in England, relative to larceny and other offences connected therewith. The preamble to 
 which states, that " various statutes now in force in that part of the miited kingdom called 
 England, relative to larceny and other offences of stealing, and to burglary, robbery, and 
 threats for the purpose of robbery or of extortion, and to embezzlement, false pretences, 
 and the receipt of stolen property, are by an act of the present session of parliament, repealed 
 from and after the ■ — day of June, in the present year, exceptias to offences committed before, 
 or upon that day, and it is expedient that the provisions contained in these various statutes, 
 should be amended, and consolidated into this act, and to take effect at the same time as the 
 said repealing act." 
 
 The IL section abolishes the distinction between grand and petit larcenj ; and every 
 larceny, whatever be the value of the property stolen, shall be deemed to be of the same 
 nature, and subject to tlie same incidents, in all respects, as grand larceny was in times past. 
 ilL Any person convicted of any felony, hereby made punishable like simple larceny, 
 shall be liable, at the discretion of the court, to be transported for seven years, or to be im- 
 prisoned for any term not exceeding two years ; and, if a male, in addition to be whipt, 
 either publicly or privately, one, two, or three times, at the discretion of the court. IV. 
 If the sentence is imprisonment, then solitary confinement, or hard labour, may be 
 superadded. V. Stealing any tally, order, or other security, entitling any person or body 
 corporate to any share oi interest in the funds, whether of this kingdom, or of Great Bri- 
 tjiin or Ireland, or any foreign state, or any body corporate, companj-, or societ} , or to any 
 deposit in any savings bank, or any debenture, deed, bond, bill, note, warrant, order, or other 
 security whatsoever, subjects the offender to the guilt of felony, and to the same punishment 
 as the stealing under like circumstances of any goods. VI. If any person rob any other 
 person of any chattel, money, or valuable security, as above described, he shall suffer death 
 as a felon. Assault with intent to commit robbery, and demands accompanied with menaces 
 or force, are felony; and offenders may be transported for life, or for any term not less than 
 seven years, or may be imprisoned for not less than four years; and, if a male, to be once, 
 twice, orthrfee times, either publicly or privately, whipt, in addition to the imprisonment. VII. 
 Every person accusing, or threatening to accuse, another person of an infamous crime, with 
 the view or intention of extorting gain from him, and who, by intimidation, does extort money, 
 or any other thing, shall be deemed guilty of robbery, indicted and punished accordingly. 
 VIII. The sending of letters threatening to accuse any party of an infamous crime, with 
 the intention of extorting money, &c., subjects the offender to the guilt of felony, and, on 
 conviction, to be transported for life, or to imprisonment for four years, and to be whipt. IX. 
 Defines every attempt, endeavour, solicitation, persuasion, promise, or threat, to move or 
 induce any person to the commission or permission of an infamous crime, shall be deemed 
 such, within the meaning of this act. X. Sacjilege, that is, breaking into and entering any 
 church or chapel, and stealing and after\vards breaking out, subjects the party to the guilt 
 and penalty of felony, that is, death. XI. Every person convicted of burglary, shall sufl'er 
 death as a felon, whether the offender breaks into the house, or, having been in, breaks out 
 of it in the night-time. XII. An offender breaking into a house and stealing to any value, 
 and putting any inhabitant in fear ; or stealing privately to the value of five pounds, shall in 
 either case suffer death as a felon. XIII. But no building shall be deemed part of a dwell- 
 
 ♦ 7 & 8 Geo. IV., c. 2f. 
 
294 RISE, PROGRESS, AND IMPROVEMENT 
 
 iiig-house, even although in the samecurtillage, unless there be a communication between such 
 building and the dwelling-house, either immediate or by means of a covered and enclosed 
 passage, leading from one to the other. XIV. A robbery in any building within the same 
 curtillage as the Itouse, but not privileged as part of the house, subjects the offender to trans- 
 portation for not less than seven years, or to imprisonment not beyond four years, with whip- 
 ping additional. XV. Robbery in a shop or warehouse subjects the offender to any of the 
 punishments before mentioned. XVI. Stealing to the value of ten shillings any article of 
 silk, linen, woollen, cotton, during any stage or progress of manufacture, subjects the offender 
 to the before mentioned punishments. XVII. Stealing goods from a vessel of any descrip- 
 tion, in any port, river, canal, or creek, dock, wharf, or quay, subjects the offenders to the 
 above punishments. XVIII. Any person that shall plunder or steal any part of any ship 
 or vessel in distress, wrecked or stranded, or any goods or merchandise belonging to such 
 vessel, shall suffer death as a felon : but if articles of small value be stolen, without cir- 
 cumstances of cruelty, outrage, or violence, the offender shall only be punished as for simple 
 larceny. XIX. Shipwrecked goods, found in the possession of any one who cannot give a 
 satisfactory account of them, shall be forthwith, by order of a justice, delivered to their 
 rightful owner, and the offender shall forfeit and pay, over and above the value of the goods, 
 a sum not exceeding twenty pounds. XX. Shipwrecked goods exposed for sjde, may be 
 seized, and the offender fined as above. XXI. Stealing records, or other proceedings of 
 any description whatever, from a court of justice, subjects the oflender to transportation for 
 seven years, or such other fine ar>d imprisonment as the court may award. XXII, To 
 steal, destroy, or conceal, either during the life or after the death of any testator or testatrix, 
 any will, codicil, or other testamentary instrument, whether relating to real or personal 
 estate, or to both, is a misdemeanor, and punishable as in the last section. XXIII. To 
 steal any writings or title deeds relating to a real estate, is a misdemeanor punishable as 
 before. XXIV. These provisions, as to wills and writings, shall not lessen any remedy 
 which the aggrieved party had previous to the passing of this act. XXV. Stealing horses, 
 cattle, or sheep, either for the carcase or the skin, is felony, and punishable with death. 
 XXVI. Unlawfully to course, hunt, snare, carry away, kill or wound deer in any inclosure, 
 is felony, and punishable as simple larceny ; but unlawfully hunting, &c., in uninclosed ground 
 is liable to a fine not exceeding fifty pounds, XXVII. Venison or snares found in the pos- 
 session of any suspected person, for which he cannot satisfactorily account, shall subject him to 
 the forfeitand payment of a sum not exceeding twenty pounds. XXVIII, Setting engines for 
 taking deer, or pulling down park fences, shall subject the offender to pay a sum not exceeding 
 twenty pounds. XXIX. Deer keepers, Sic., may seize the guns of offenders, who do not de- 
 liver up the same on demand : and resistance to deer keepers, &c., in the execution of their 
 duty, is felony, and punishable as simple larceny. XXX. Unlawfully killing hares or 
 rabbits, in the night-time, in any warren or ground lawfully used for their breeding, whe- 
 ther it be enclosed or open, is a misdemeanor, and punishable accordingly ; and if done in 
 the day-time, shall forfeit five pounds. XXXI. Stealing dogs, beasts, or birds, ordinarily 
 kept in confinement, and not subjects of larceny, subjects the offender for the first time to 
 forfeit, besides the value of the animal, a sum not exceeding twenty pounds j for a second 
 oflence the party is liable to be put to hard labour in the house of correction, or the common 
 gaol for any term not exceeding twelve months; and, if a male, he may be twice publicly 
 whipt. XXXII, If any dog or beast, or their skins, birds or their plumage, are found in the 
 potse^ion or the premises of any person, he is liable to the same forfeitures and punishments 
 as before stated. XXXI II. Unlawfully and wilfully killing, wounding, or taking any house 
 dove or pigeon, shall, over and above the value of the bird, pay any sum not exceeding two 
 pounds. XXXIV. Unlawfully taking or destroying any fish in any water which is situated 
 in the land belonging to any house of which the owner has a right of fishing, is a misde- 
 meanor, and punishable accordingly : or in any private fishery elsewhere, the offender, be- 
 sides the value of the fish, shall pay a fine not exceeding five pounds : but this does not ex- 
 tend to anglers in the day-time. XXXV, The owner of the ground is authorized to seize 
 the tackle of the oflender ; but, on the seizure of his tackle, an angler in the day-time is ex- 
 empt from the penalty. XXXVI. Stealing oysters or oyster brood from any oyster bed, 
 laying, or fishery, being the property of any person, and sufficiently marked or known, is 
 
OF THE LAW OF ENGLAND. 293 
 
 larceny, and punishable accordingly; dredging for oysters within the limits of any oyster 
 fishery is a misdemeanor punishable by fine or imprisonment, or both, at the discretion of 
 the court. XXXVII. To steal, or to sever with the intent to steal, the ore of any metal, or 
 any lapis calaminaris, manganese, or mandate, or any wad, black cawke, or black lead, or 
 any coal or cannel coal, from any mine, bed, or vein thereof, respectively, is felony, and on 
 conviction to be punished as in the case of simple larceny. XXXVIII. To steal, cut, break, 
 root up, or otherwise damage, with intent to steal the whole or any part of any tree, sapling, 
 shrub, or underwood, growing in any park, orchard, garden, or pleasure ground, if the 
 vjUue exceed one pound, is felony, and punishable as simple larceny: and if the wood, as 
 mentioned, be growing in any other situation, if the value stolen amount to five pounds, it is 
 felony, and punishable as simple larceny. XXXIX. But if the damage to a tree, &c., with 
 intent to steal, in any situation whatever, be to the amount of a shilling, the offender is 
 liable to a fine not exceeding five pounds, and to pay the amount of damage ; a second of- 
 fence subjects the offender to be committed to the common gaol, or the house of correction, 
 for twelve months with hard labour and whipping, at the discretion of the justices ; and con- 
 viction of a third similar offence is felony, and punishable as in simple larceny. XL. To 
 steal any live or dead fence, wooden fence, stile, or gate, subjects the offender to a fine not 
 exceeding five pounds, for a first offence, besides the value destroyed or stolen ; for a second, 
 hard labour in the gaol or house of correction for one year, and, if a male, to be whipt. 
 XLI. Any part of a tree, shrub, &c., fence, or paling, Sic., found in the possession of any 
 suspected person, who cannot give a satisfactory account for its possession, subjects the 
 offender to a fine of two pounds besides the value of the stolen property. XLI I. To steal 
 plants, roots, fruits, or vegetable productions in a garden, subjects the offender to hard labour 
 in the gaol or house of correction, for six months, or else to pay a fine not exceeding twenty 
 pounds, besides the value stolen or destroyed, for the first offence ; the second is felonj', and 
 punishable as simple larceny. XL II I. To steal, &c., any cultivated root or plant used 
 for food, medicine, distilling, dyeing, or for the course of any manufacture, and grow- 
 ing in any field, not a garden, or orchard, or nursery ground, subjects the offender to hard 
 labour for one month in the gaol or house of correction, or else to pay a fine of twenty shil- 
 lings, for the first offence, besides the value of the articles stolen or injured; and for the second, 
 to six months hard labour, and if a male, to be whipt. XLI V. If any person steal, rip, 
 cut, or break with intent to steal, any glass or wood work belonging to any building whatso- 
 ever, or any lead, iron, copper, brass, or other metal, or any utensil, or fixture, whether 
 made of metal or other material respectively, fixed in or to any building whatsoever, or any 
 thing made of metal, fixed on any land being private property, or for a fence to a dwelling- 
 house, garden, or area, or in any square, street, or other place dedicated to public use or orna- 
 ment ; every such offendei is guilty of felony, punishable as simple larceny. XL V. Tenants 
 and lodgers stealing any property from houses or apartments let to them, are guilty of felon}, 
 and punishable as in simple larceny. XLVI. Clerks and servants stealing their masters' 
 property, are liable to transportation for fourteen years, or to imprisonment for three years, 
 and if a male, to be three times publicly whipt. XL VI I. Clerks and servants who have 
 received any money, &c., on their masters' account, and afterwards embezzle it, are guilty of 
 felonious stealing, and liable to any of the punishments last mentioned. XLVI 1 1. Distinct 
 acts of embezzlement may be charged in the same indictment. XL IX. Agents, merchants, 
 brokers, &c., embezzling money, or valuable security, goods of any kind intrusted to their 
 care, safe custody, or for any special purpose, are guilty of a misdemeanor, and liable to any 
 of the punishments last mentioned. L. The last section, however, does not affect trustees, 
 mortgagees, nor bankers receiving money due on securities, or disposing of securities, &c., over 
 which they have a lien, and to the extent of that lien. LI. Factors, agents, &c., pledging 
 for their own use any goods or documents, &c., relating to goods intrusted to them for the pur- 
 poses of sale, are guilty of a misdemeanor and liable to transportation for fourteen years, or to 
 fine and imprisonment ; but this does not extend to cases where the pledge does not exceed the 
 amount of any lien which the factor may have over the articles pledged. LI I. These pro- 
 visions regarding agents, did not lessen any remedy which the aggrieved party had, previous 
 to passing the act. LI 1 1. To obviate the subtle distinction between larceny and fraud,, 
 it is enacted, that any person obtaining under false pretences from any other person, either 
 
906 
 
 RISE, PROGRESS, AND IMPROVEMENT 
 
 money, chattels, or valuable securities, with intent to cheat or defraud, is guilty of a mistle- 
 meanor, and liable to be transported for seven years, or to fine and imprisonment at dis- 
 cretion. LI V. Any persons receiving mone}-, chattels, or valuable securities, knowing the 
 same to have been feloniously stolen or taken, is guilty of felony, and may be indicted as an 
 accessory after the fact, or for a substantive felony ; and the receiver, whether the principal 
 has, or has not been convicted, is liable to transportation for fourteen years, or to three yeai-s' 
 imprisonment, and if a male, to be three times whipt. LV. When the original offender is 
 guilty of a misdemeanor only, the receivers can only be prosecuted for a misdemeanor. 
 LVI. All receivers may be tried where the principal is triable, or where the property is 
 found in their possession, as well as where they received the stolen goods. L VII. The owner 
 of stolen property, prosecuting the thief or receiver to conviction, shall have restitution of his 
 property : except any valuable security shall have been, bonajide, paid or discharged by some 
 person, or body corporate, liable for its payment ; or if a negotiable instrument shall have 
 been, bona fide, transferred for a just consideration without a reasonable cause to suspect that 
 the same had been stolen, &c., in which case the court shall not award restitution. LVIll, 
 Every person taking money or reward, directly or indirectly, under pretence of assisting in the 
 recovery of stolen goods, &c., without bringing the ofi'ender to trial, is guilty of felony, and 
 liable to be transported for life, ar to be imprisoned for four years, and if a male, to be three 
 limes publicly whipt LIX. Any person that publicly advertises a reward for the return of 
 any stolen or lost property, and promises a rcAvard and that no questions shall be asked, and 
 without seizing and making inquiry after the person producing such property, shall forfeit 
 the sum of fifty pounds for every otlence, with full costs of suit to any person who will pro- 
 secute. LX. Receivers of stolen property, when the original offence is punishable on sum- 
 mary conviction, is liable to the same punishment as the original offender. LXl. Every 
 principal in the second degree, and every accessory before the fact, shall be punishable with 
 death or otherwise, in the same manner as the principal in the first degree : and every ac- 
 cessory after the fact, (except only a receiver of stolen property,) is liable to two years' im- 
 prisonment : and abettors, &c., in misdemeanors, may be indicted and punished as princi- 
 pals. LXII. Abettors in offences punishable on summary conviction, are liable to the same 
 |)enalties as the principal offenders. LXII I. A person found in the act of committing any 
 offence, may be apprehended without a warrant, either by a peace officer, or the owner of 
 the property, or his servant: and if any credible witness shall prove upon oath before a jus- 
 tice, a reasonable cause to suspect that any person has in his possession, or on his premises, 
 any stolen property whatever, the justice shall grant a search-warrant, as in the case of stolen 
 goods : and any person to whom goods or property are offered for sale, if he has a reasonable 
 cause of suspicion, is authorized to apprehend the person offering the goods, and carry him 
 before a justice. LXIV. The prosecution for every offence punishable on summary con- 
 viction, shall be commenced within three calendar months after commission, and not other- 
 wise. LX V. When any person is charged on the oath of a credible witness, for any offence 
 punishable on summary conviction, the justice may summon him to appear, which if he 
 jieglect, the justice may proceed to hear and determine the case, ex parte, or issue a warrant 
 for his-apprehension. LXVI. Every sum of money forfeited for the value of stolen or in- 
 jured property, &c., shall be paid to the aggrieved party if known, and if he is unknown, it 
 shall be applied in the same manner as a penalty : and penalties imposed by justices of the 
 peace, shall be paid to the overseers of the poor. LXVII. If a convicted person refuses, or 
 is unable to pay, the justice may commit him for any term not exceeding two calendar 
 months, where the amount with costs does not exceed five pounds : not exceeding ten pounds, 
 for four calendar months : and in any other case, not exceeding six montlis ; but on payment 
 of fine and costs, the imprisonment to cease. LXVII I. A justice may, if he think fit, dis- 
 charge the offender for a first offence, upon his making satisfaction to the aggrieved party. 
 LXIX. But his majesty may extend his pardon for the non-payment of the fine. LXX. A 
 summary conviction, is a bar to any other proceeding for the same cause. LXXI. The 
 justice before whom any person shall be convicted of any offence against this act, may cause 
 the conviction to be diviwn up in the following form of words, or any other form of words, 
 to the same effect, as the case shall require : videlicet, 
 " Be it remembered, that on the . . day of . . . , in the year of our Lord, . . , 
 
OF THE LAW OF ENGLAND. 297 
 
 at . . . , in the county of . . . for riding, division, liberty, city, &c., as i/te caie 
 may be], A. O. is convicted before me, J. P., one of his majesty's justices of the peace 
 for the said county, [or riding, division, liberty, city, &c., as the case may be] : for that the 
 said A. O. did [specify the offence^ and the time, and place, when and where the same was 
 committed, as the case may be ; and, on a second conviction, state the first conviction'] •, and I 
 tlie said J. P. adjudge the said A. O. for his said offence, to be imprisoned in the . . . 
 [or to be imprisoned in the ... , and then kept to hard labour], for the space of 
 
 . . . , [or, I adjudge the said A. O., for his said offence, to forfeit and pay . . . ] 
 {here state the penalty actually imposed, or state the penalty, and also the amount of the arti- 
 cles stolen, or the amount of the injury done, as the case may be], and also to pay the sum of 
 
 . . . for costs, and, in default of immediate payment of the said sums, to be impri- 
 soned in the . . . , [or to be imprisoned in the . . . , and then kept to hard labour,] 
 for the space of ... , unless the said sums shall be sooner paid ; [or, and I order that 
 the said sums shall be paid by the said A. O., on, or before the . . day of ... ]•, 
 and I direct, that the said sum of . . . [that is, the penalty only] shall be paid to . . . . 
 of . . . aforesaid, in which the said offence was committed, to be by him applied, accord- 
 ing to the directions of the statute, in that case made and provided ; or that the said sum of 
 
 . . . , [that is, the valv£ of the articles stolen, or the amount oftlie injury done], shall be 
 paid to C. D., [the jyarty aggrieved, unless he is unknown, or has been examined in proof of 
 the offence, in which case state that fact, and dispose of the whole, like the penalty, as before]'. 
 and I order that the said sum of . . . , for costs, shall be paid to .... , [the com- 
 plainant]. Given under my hand and seal, the day and year first above mentioned." 
 
 LXXI L The offender may, in all cases where the fine exceeds five pounds, appeal to the next 
 court of general or quarter sessions, which shall be holden within twelve days of his conviction, 
 LXXI 1 1. But no adjudication or conviction made on appeal, shall be quashed for wantof form, 
 or removed by certiorari, or otherwise, into any of his majesty's superior court»of record. 
 LXXI V. Every justice must transmit convictions to the next court of general or quarter ses- 
 sions for the county, &c., to be kept by the proper officer, among the records of the court, which 
 shall be sufiicient evidence to prove a former conviction. LXXV. All actions and prosecutions 
 for any thing done in pursuance of this act, must be laid and tried in the county where the 
 fact was committed, and within six calendar months after its commission: notice in writ- 
 ing of such action, must be given the defendant, one calendar month before commence- 
 ment : the defendant may plead the general issue : no plaintiff can recover, if the defend- 
 ant make such amends or restitution before the action is commenced, or if he has paid a 
 sufficient sum into court : and if a verdict pass for the defendant, or the plaintiff be non- 
 suited or discontinue the action after issue is joined, or if upon demurrer judgment shall be 
 given against the plaintiff, the defendant shall recover his full costs, as between attorney and 
 client, and have the same remedy as any defendant hath by law in other cases : and, though 
 a verdict shall be given for the plaintiff in any such action, he shall not have costs against 
 the defendant, unless the judge shall certify his approbation of the action, and the verdict 
 obtained. LXXVL This act does not extend to either Scotland or Ireland, except in two 
 cases : that is, if any person, having stolen or feloniously taken any chattel, money, valuable 
 security, or other property whatsoever, in any one part of the united kingdom, and shall af- 
 tervrards have the same property In his possession in any other part of the united kingdom, 
 he may be dealt with, indicted, tried, and punished for larceny or theft, in that part of the 
 united kingdom where the property shall be found in his possession, in the same manner as 
 if he had actually stolen or taken it in that part : and if any person in any one part of the 
 united kingdom shall receive or have any chattel, money, valuable security, or other proper- 
 ty whatsoever, which shall have been stolen or otherwise feloniously taken, he may be dealt 
 with, indicted, tried, and punished for such offence, in that part of the imited kingdom where 
 he shall receive the property, in the same manner as if it had been originally stolen or taken 
 in that part. LXXV 1 1. Any felony or misdemeanor punishable under this act, committed 
 within the jurisdiction of the admiralty of England, shall be dealt with, inquired of, tried, 
 and determined, in the same manner as any other felony or misdemeanor, committed with- 
 in that jurisdiction.* 
 
 * 7 & 8 Geo. IV., c. 29. 
 
 2 i* 
 
^98 RISE, PROGRESS, AND IMPROVEMENT 
 
 Although we have placed the preceding act before tiiat which we are now about to quote, 
 on account of its consolidating and amending all the acls on larceny and the benefit of cler- 
 gy, which the act immediately before it * had repealed ; yet, in the order of the statute book, 
 the act of 21st June, 1827, for further improving the administration of justice in criminal 
 cases, stands before it. The last cited act owes its existence to Sir Robert Peel, and relates 
 almost entirely to offences against the property of individuals, and to the administration of 
 the criminal law generally. At a future stage of this article, we will give lord Lansdowne's 
 act, which relates to offences against the person, and is intended to amend lord Ellenborough's 
 act, which we have already given in its chronological order, in the reign of George 1 1 1, f The 
 preamble of this act narrates generally, that some of the forms attending trials for criminal 
 offences in Enghuid, frequently impede the due administration of justice ; the legislature, 
 therefore, considered it necessary and expedient to abolish these unnecessary forms and also 
 the benefit of clergy, and to make better provision for the punishment of oflenders in certain 
 cases. Any person, not having the privilege of peerage, being arraigned on any indictment 
 for treason, felony, or piracy, and pleading " not guilty;" such a plea, without any other form, 
 shall put the prisoner on his trial by jury. If the prisoner shall stand mute of malice, or 
 will not answer directly to the indictment or information, the court shall order the proper 
 officer to enter a plea of *' not guilty " in the prisoner's behalf, which shall be as effectual as 
 if he had, himself,' pleaded not guilt)'. If the prisoner challenge, peremptorily, a greater 
 number of the jury than he is entitled by law to challenge, tlie challenges beyond the legal 
 number is void, and his trial shall proceed as if no challenge had been made. No attainder 
 for another crime shall be pleadable in bar of any indictment, unless the attainder be 
 for the same offence as that charged in the indictment. In an indictment for trear 
 son, or felony, the jury shall not be charged to inquire concerning his lands, tenements, or 
 goods, nor whether he fled for such treason or felony. The sixth section of this important 
 act enacts, that benefit of clergy, with respect to persons convicted of felony, shall be abolisli- 
 ed; but that nothing in this act shall prevent the joinder in any indictment of any counts 
 which might have been joined before the passing of this act. No person convicted of felony 
 shall suffer death, unless it be for some felony which was before excluded from the benefit of 
 clergy, or which shall be made punishable with death by some future statute. Every per- 
 son convicted of any felony, not punishable with death, shall be punished as the statutes re- 
 lating to such felony shall direct, and when no punishment has or hereafter may be specially 
 provided, they shall be punished under this act, and liable at the discretion of the court to 
 ,be transported for seven years, or imprisoned for two years ; and if a male, to be three times 
 publicly or privately whipped ; and, besides, the court may sentence the offender to be impri- 
 soned and kept to hard labour in the common gaol or house of correction, and if necessary, 
 the court may order solitary confinement as part of the sentence. If a person already im- 
 prisoned for another crime, is convicted of felony, the court may award imprisonment a 
 second time, to commence after the expiration of the first period; and if under sentence of 
 transportation, the court may pass sentence of transportation for the subsequent ofl'ence, to 
 commence from the expiration of the first period ; although the aggregate term of imprisouo 
 ment or transportation, respectively, may exceed the term for which either of those punish- 
 ments could otherwise be awarded. If any person shall be convicted of any felony, not 
 punishable with death, which has been committed after a previous conviction for felony, he 
 shall, on a subsequent conviction, be liable, at the discretion of the court, to be transported for 
 life, or for any term not less than seven years, or be imprisoned for any term not exceeding 
 four years, and if a male, to be three times whipped in addition : and it shall be sufficient in 
 any subsequent indictment to state generally, that the offender was at a certain time and place 
 convicted of felony, without otherwise describing it, on a certificate containing the substance 
 and effect, by the clerk of the court where the conviction took place : which clerk shall be 
 guilty of felony, if he gives a false certificate, and liable to transportation for seven years. All 
 offences prosecuted in the high court of admiralty of England, for every first and subsequent 
 conviction, are subject to the same punishment, whether of death or otherwise, as if such of- 
 fences had been committed on land. When the king's majesty shall be pleased to extend 
 
 • 7 & 8 Geo. IV., c. 27. t 43 Geo. III., c. 58. 
 
OF THE LAW OF ENGLAND. 299 
 
 Jiis ro}al meix;} to any offender convicted of a felony, punishable with death or otherwise, and, 
 by warrant under his royal sign manual, countersigned by one of his principal secretaries of 
 state, shall grant to such offender, either a free or a conditional pardon ; his discharge out of 
 custody in the former case, or his performance of the conditions in the latter, shall have tlie 
 elfect of a pardon under the great seal ; but this pardon does not affect the offender, nor hin- 
 der his punishment, for any subsequent felony or offence. Whenever this statute or any 
 other relating to any offence, whether punishable upon indictment or summary conviction, 
 in describing or referring to the offence, or the subject-matter, on, or with respect to which 
 it shall be committed, or the offender or party affected, or intended to be affected, by the of- 
 fence, hath used or shall use words importing the singular number, or the masculine gender 
 only ; yet the statute shall be understood to include several mattei-s as well us one matter, and 
 several persons as well as one person, and females as well as males, and bodies corporate as 
 well as individuals, unless it be otherwise specially provided, or there be something in the 
 subject or context repugnant to such construction ; and wherever any forfeiture or penalty is 
 pajable to a party aggrieved, it shall be pajable to a body corporate in every case where such 
 body shall be the party aggrieved. But nothing in the act shall extend to Scotland or Ire- 
 land. * ^ 
 
 In consequence of the repeal of so many acts relative to malicious injuries done to pro- 
 perty, it became necessary to consolidate the laws and make an enactment which should 
 embody the whole into one act, to take effect at the same time, as the said repealing 
 act: accordingly, unlawfully or maliciously to set fire to any church or chapel, or to any 
 duly registered or recorded dissenting chapel, or to any house, stable, coach-house, out- 
 house, warehouse, office, shop, mill, malt-house, hop-oast, bam, or granary, or to any build- 
 ing used for any trade or manufacture, whether the same shall be in the possession of the 
 offender or of any other person, with intent to injure or defraud any person, is felony, and 
 the oflTender shall suffer death. Maliciously to cut, break, or destroy, or damage, with 
 intent to destroy, or to render useless, any goods or articles of silk, woollen, linen, or cotton, 
 or of any one or more of those materials mixed with each other, or with any other material, 
 or any frame-work, knitted piece, stocking, hose, or lace, respectively being in the loom or 
 frame, or on any machine or engine, or on the rack or tenters, or in any stage, process, or 
 progress of manufacture, or any warp or shute of silk, woollen, linen, or cotton, whether 
 mixed or singly, or any loom, frame, machine, engine, rack, tackle, or implement, whether 
 fixed or movable, prepared for or employed in carding, spinning, throwing, weaving, fril- 
 ing, shearing, or otherwise manufacturing or preparing such goods or articles; or shall forci- 
 bly enter into any house, shop, building, or place, with intent to commit any of the offences 
 aforesaid, is felony, and liable to transportation for life, or not less than seven years, or four 
 years' imprisonment, and to be three times whipped. To cut, break, or destroy, or damage, 
 with intent to destroy or render useless, any threshing machine, or machine or engine, whe- 
 ther fixed or movable, prepared for or employed in any manufacture whatsoever, is felony, 
 and liable to transportation for seven years, or to imprisonment for two years ; and, if a male, 
 to be three times whipped. To set fire to a coal mine is felony, punishable with death. To 
 drown any mine or to fill up any shaft, air-way, water-way, drain, pit, level, or shaft, be- 
 longing to any mine, is felony, liable to seven years' transportation, or two years' imprisonment, 
 with wliipping if a male : but this does not implicate any owner in working another shaft or 
 mine. To destroy any engine or steam engine, staith, building, or erection used in conducting 
 the business of any mine, or any bridge, waggon-way, or trunk for conveying minerals from 
 any mine, whether they be completed or in an unfinished state, is felony. Rioters demolish- 
 ing or destroying any building, machinery, or materials as before mentioned, are guilty of 
 felony, and the offenders shall suffer death. Maliciously to set fire to, or otherwise cast away 
 or destroy, any ship or vessel, whether complete or in an unfinished state, so as to prejudice 
 any owner or part owner, or the goods on board, or the freight, or the imderwriters, is felony, 
 and punishable with death. To damage or destroy a ship or vessel, otherwise than by fire, is 
 felony, and liable to transportation for seven years, or two years' imprisonment with whip- 
 ping. To exhibit any false light or signal, with intent to bring a ship into danger, or to 
 cause her to be wrecked, or by force to impede any person endeavouring to siivc his life from 
 
 * 7 & 8 Geo. IV., c. 28. 
 
300 RISE, PROGRESS, AND IMPROVEMENT 
 
 any wreck, &c. , is felony, and liable to death. To break or cut down any sea- bank or wall, 
 or the bank or wall of any river, canal, or marsh, which may ocaision the overfloAv or damage 
 of any lands, or even to endanger their overflow or damage ; or to throw down, level, or other- 
 wise destroy any lock, sluice, floodgate, or other work on any navigable river or canal, is 
 felony and liable to transportation for life, or imprisonment for four )ears, and if a male, to 
 be whipt. To cut off, draw up, or remove any piles, chalk, or other materials fixed in the 
 ground, and used for securing any sea-bank or wall, or that of any river, canal, or marsh ; 
 to draw up any floodgate, or to do any other injury or mischief to any navigable river or 
 canal, so i\s to injure its navigation, is felony, and liable to transportation for seven years, or 
 to two years' imprisonment, with whipping. To pull down or injure a public bridge, or to 
 render it impassable or dangerous, is felony, and liable to transportation for life, or to four 
 years' imprisonment, and whipping. To throw down, level, or otherwise destroy, in whole or 
 in part, any turnpike -gate, wall, chain, rail, post, bar, or other fence belonging to a turnpike- 
 gate, &c., or any house, building, or weighing engine belonging to it, &c., is a misdemeanor, 
 and punishable accordingly. To break down or destroy the dam of any fish pond, or water 
 which is private propertj-, or where there is any private right of fishery, with intent to de- 
 stroy the fish, or to put lime or any other noxious material into such pond, &c., intending to 
 destroy the fish, is a misdemeanor, liable to seven years' transportation, or to two years' im- 
 prisonment, and whipping. To kill, maim, or wound any cattle, is felony, liable to transpor- 
 tation for life, or to four years' imprisonment, and whipping. To set fire to any stack of com, 
 grain, pulse, straw, hay, or wood, is felony, and liable to death. To set fire to any crop of 
 corn, grain, or pulse, whether standing or cut down, or to any part of a wood, coppice, or 
 plantation of trees, or to any heath, gorse, furze, or fern, wheresoever the sjime may be 
 growing, is felony, and liable to transportation for seven years, or to two years' imprison- 
 ment, and whipping. To destroy hop binds growing on poles, is felony, and liable to trans- 
 portation for life, or to four years' imprisonment, and whipping. To cut, break, bark, root up, 
 or otherwise destroy or damage the whole or any part of any tree, sapling, or shrub, or any 
 underwood, respectively growing in any park, pleasure ground, garden, orchard, or avenue, 
 or in any ground adjoining or belonging to any dwelling-house, if the injury exceed one 
 pound in value, is felony, and the offender is liable to seven years' transporUition, or to two years' 
 imprisonment, and whipping: the like injuries done to trees, &c., growing in any other si- 
 tuation, if exceeding the amount of five pounds, are felony, and the oftender is liable as before. 
 To damage, as before, wheresoever the trees, &c., are growing, to the value of one shilling, 
 on conviction before a justice of the peace, the offender shall forfeit and pay, for the first of- 
 fence, over and above the amount of the injury done, any sum not exceeding five pounds; 
 and every offender, for a second offence, shall be committed to the common gaol, or house of 
 correction, to be kept at hard lalxjur, not exceeding twelve months ; a third ofl'ence is 
 felony. To destroy or damage, with intent to damage, any plant, root, fruit, or vegetable 
 production, growing in any garden, orchard, nursery ground, hot house, green house, or con- 
 servator)', subjects the offender to a summary punishment — to be committed to the common 
 gaol, or house of correction, and kept to hard labour for any term, not exceeding six calendar 
 months, or else to forfeit and pay, over and above the amount of the injury done, sucii 
 sum of money, not exceeding twenty pounds, as to the justice shall seem meet ; but a second 
 offence, is felony. Maliciously destioying or damaging, with intent to destroy any cultivated 
 root or plant, used for the food of man or beast, or for medicine, or for distilling, or for dye- 
 ing, or for any manufacture, and growing in any land, either open or enclosed, not being a 
 garden, orchard, or nursery ground, subjects the offender, on conviction before a justice of the 
 peace, to be imprisoned only in the common gaol or house of correction, or to be imprisoned 
 and kept to hard labour for any term not exceeding one month, or else to forfeit and pay 
 for the injury done, a sum of money not exceeding twenty shillings, and failing payment 
 and costs, shall be committed as aforesaid ; a second ofl'ence subjects the offender to hard la- 
 bour and whipping. Maliciously cutting, breaking, or throwing down any wall, stile, or 
 gate, or part thereof, subjects the oflender for the first offence, to forfeit and pay, besides the 
 value of the thing injured, a fine not exceeding five pounds ; for the second to imprisonment 
 and hard labour for two calendar months. Any person wilfully or maliciously committing 
 any damage, or injury, or spoiling nnj real or personal property whatsoever, either public or 
 
OF THE LAW OF ENGLAND. 301 
 
 private, for -,\hlch no remedy or punishment has been provided, shall forfeit and pay such 
 fine as shall appear to the justices to be a reasonable compensation for the damage, not ex- 
 ceeding the sum of five pounds; in the case of private propertj', the fine is to be paid to the 
 injured party, except when the party has been examined in proof of the offence : and in such 
 cjise, and in the case of public property, or where any public right is concerned, the money 
 shall be applied as is hereafter directed : if the offender does not immediately pay the fine, 
 the justice may commit him to gaol and hard labour, not exceeding two months, unless the 
 fine be sooner paid. This act, however, does not extend to any case where the injury is not 
 done maliciously and wilfull}', as in hunting, fishing, &c. Malice against the owner of pro- 
 perty, is not essential to any offence under this act. Every principal in the second degree, 
 and every accessory before the fact, shall be punishable with death, or otherwise, in the same 
 manner as the first principal ; every accessory after the fact, is liable to two years' imprison- 
 ment, and aiders, abettors, and counsellors, are liable to be indicted and punished, as princi- 
 pal offenders. The court may order for all offences witlu'n this act, hard labour or solitary 
 confinement, at their discretion. Persons detected in the act of committing any of these of- 
 fences, may be immediately apprehended by any peace officer, by the owner of the property, or 
 by his servants, without a warrant, and taken before a justice of the peace.' The prosecu- 
 tion for any of these ofiences must be commenced within three calendar months after the 
 commission, and not afterwards. When any person shall be charged on the oath of a credi- 
 bhi witness, before any justice of the peace, with any of these offences, he may summon the 
 oflender, and if he does not appear at the time and place appointed accordingly, the justice 
 may either proceed to hear and determine the case, ex parte, or issue his warrant for appre- 
 hending the offender, and bringing him before himself or some other justice, when the 
 case shall be heard and determined. An}- person who shall aid, abet, counsel, or procure the 
 commission of any of these offences, shall be liable for every first, second, or subsequent of- 
 fence, to the same forfeiture and punishment as the principal oflender. All forfeitures for 
 the amount of any injury, shall be paid to the party aggrieved, if known, except when the 
 part} has been examined in proof of the injury, in which case, and when the injured party 
 is unknown, it shall be applied in the same manner as a penalty: and all penalties by any 
 justice of the peace, shall be paid to some one of the overseers of the poor, or to some other 
 officer of the parish, township, or place in which the offence shall have been committed, for 
 the use of the general rate of the county, riding, or division in which such paiish or town- 
 ship is situated. In every case of a summary conviction, where the forfeit or pe:i;ilty shall not 
 be immediately paid after conviction, the justice may commit the oflender to the common 
 gaol or house of correction, to be simply imprisoned, or to be kept to hard labour, in addi- 
 tion, according to the discretion of the justice, for any term not exceeding two calendar 
 months, where the penalty or forfeiture with costs does not exceed five pounds, for any term 
 not exceeding four calendar months, where the sum does not exceed ten pounds; and not ex- 
 ceeding six calendar months in any other case : in each of the aforesjiid cases, the commit is 
 to be determined, on pa} ment of the amount and costs. J ustices may discharge otienders on 
 a first conviction, if they think fit, on satisfaction of the injured party for damages and costs. 
 The king's pardon releases the oflender from imprisonment, for non-payment of fines anil 
 penalties to any party, other than the crown. A summary conviction is a complete bar to 
 any other proceedings for the same cause. Offenders, who may think themselves aggrieved 
 by the forfeiture or penalty being greater than is warranted by this act, may appeal to the 
 next court of general or quarter sessions, which shall be holden in not less than twelve da} s 
 after conviction, for the same county, &c., provided that the offender gives the complainant a 
 notice in writing of such appeal, and its ciiuse, within three days after conviction, and seven clear 
 da}s at least, before the^sessions, and besides, shall either remain in custody till the sessions, 
 or enter into recognizances to appear and abide the judgment of the court, which shall hear 
 and determine the appeal, and make such order therein, with, or without costs, as to the court 
 shall seem meet : and in case oi the dismissal of the appeal, or affirmance of the conviction, 
 shall adjudge the oflender to be punished according to the conviction, to pay che costs, and if 
 necessar}', to issue process for enforcing the judgment. No such conviction or adjudication. 
 made on appeal, shall be quashed for want of form, nor be removed by certiorari, or other- 
 wise, into any of his majest}'s superior courts of record : and no warrant of commitmen't, 
 
302 RISE, PROGRESS, AND IMPROVEMENT 
 
 sh.'ill be void from any defect in it. Every justice of the peace, shall transmit all convictions 
 to the next court of general or quarter sessions, for the same county, &c., whicii shall be kept 
 among the records of the court, a copy of which, properly certified, shall be a sufficient evi- 
 dence in a subsequent offence, to prove a former conviction. All actions and prosecutions 
 against oflenders, must be laid and tried in the county where the fact was committed, and 
 must be commenced within six calendar months after the fact, and not otherwise : notice in 
 writing must be given the offender, at least one calendar month before the commencement of 
 liie action : the defendant may plead the general issue, and give this act, and the special mat- 
 ter in evidence at such trial : and if the defendant tender sufficient satisfaction before the 
 action, or if he pay a sufficient sum into court, after the action has been brought, no plain- 
 tiff shall recover damages : if the defendant have a verdict, or the plaintiff is nonsuited, or 
 discontinue the action after joining issue, or upon demurrer, or otherwise, judgment shall be 
 given against the plaintiff, the defendant shall recover costs. The provisions of this act are 
 entirely confined to the realm of England, and do not extend to either Scothmd or Ireland : 
 but they comprehend all felonies or misdemeanors committed at sea, within the jurisdiction 
 of the high court of admiralty.* 
 
 The fundamental alterations in the laws respecting property, which have just been detail- 
 ed, required also Some amendment in the statutes respecting remedies against the hundred, 
 for damages occasioned by riotous and tumultuous assemblages of people ; an act was ac- 
 cordingly passed on the 21st June, 1827, for amending and consolidating the laws into one 
 act, and all preceding acts relating to the hundred, were at the same time repealed. Besides, it 
 was enacted, that if any clmrch or chapel, or any duly registered and recorded chapel, for the 
 religious worship of persons dissenting from the united churches of England and Ireland, or 
 any house, stable, coach-house, out-house, warehouse, office, shop, mill, malthouse, hop-oast, 
 barn or granary, or any building or erection, used in carrying on any trade or manufacture, 
 or branch thereof, or any machinery, whether fixed or movable, prepared for, or employed 
 in any manufacture, or in any branch thereof, or any steam engine, or other engine, for 
 sinking, draining, or working any mine, or any staith, building, or erection, used in conduct- 
 ing the business of any mine, or any bridge, waggon way, or trunk, for conve)ing minerals 
 from any mine, shall be feloniously demolished, pulled down or destroyed wholly, or in part, 
 by any persons riotously and tumultuously assembled together •, in any such case, the inhabi- 
 tants of the hundred, wapentiike, ward, or other district in the nature of a hundred, by 
 whatever name it shall be denominated, in which any of the said offences shall be commit- 
 ted, shaH be liable to yield full compensation to the person or persons damnified by the of- 
 fence, not only for the damage so done to any of the subjects herein before enumerated, 
 but also for any damage which may at tlie same time be done by any such oflenders, to any 
 fixture, furniture, or goods whatever, in any such church, chapel, house, or other of the 
 buildings or erections aforesaid. This act is however confined to the kingdom of England, 
 and does not extend to either ScoUand or Ireland, f 
 
 We have now arrived at that period of our legal history, where it had 
 been determined by the government to alter the whole of the fundamental 
 laws of the kingdom, in so far as they affected the political state of the 
 Roman catholic portion of our fellow subjects ; the first step towards 
 which, was the repeal of the act of Charles II., commonly known by the 
 name of the Test Act, J which was passed in the year 1673. By this 
 statute, all officers, civil and military, are directed to take the oaths, and 
 make the declaration against transubstantiation, either in the court of 
 king's bench or chancery, the next term, or at the next quarter sessions, 
 or (by subsequent statutes,) within six months after their admission : and 
 also within the same time, to receive the sacrament of the Lord's supper, 
 
 « 7 & 8 Geo. IV., c. 30. f 7 & 8 Geo. IV., c. 31. f 25 Car. II., c. 2. 
 
OF THE LAW OF ENGLAND. . 303 
 
 according to the usage of the cliurch of England, in some public churcli, 
 immediately after divine service or sermon, and to deliver into court a cer- 
 tificate thereof, signed by the minister and church-wardens, and also to 
 prove the same by two credible witnesses upon forfeiture of £500, and 
 disability to hold the same office. Besides this penalty, if, without taking 
 the sacramental qualification within the time prescribed by the act, a per- 
 son continued to occupy a civil office, or to hold a military commission, 
 and was lawfully convicted, then lie was disabled from thenceforth for ever 
 from bringing ,any action in course of law, from prosecuiting any suit in 
 any court of equity, from being guardian of any child, or executor, or ad- 
 ministrator of any person, as well as from receiving any legacy.* The 
 corporation act was at the same time repealed, vyhich prevented any person 
 from being legally elected to any office, relating to the government of any 
 city or corporation, unless, within a twelvemonth before, he had received the 
 sacrament of the Lord's supper, according to the rites of the church of 
 England, and which also enjoined him to take the oaths of allegiance and su 
 premacy when he took the oath of office, otherwise his election was void. 
 
 The word test signifies proof or trial, being derived from testis^ a wit- 
 ness. The test act was established with a view to exclude Roman catho- 
 lics only from any share in the government, but it also operated to the ex- 
 clusion of English protestant dissenters generally. By the corporation act, 
 all non-conformists were turned out of every department of the magistracy 
 at once, and rendered incapable of serving their country in the offices of 
 common councilmen, burgesses, or bailiffs of any corporation. It was 
 passed at a period of great heat and violence, the year after the Restora- 
 tion J and it paved the way for the act of uniformity, which soon after 
 passed. The king, his ministers, and the majority of both houses, dis- 
 liked the presbyterians, whom they considered as the authors of the late re- 
 bellion. Great power still remained in their hands, for, during the pro 
 tectorate, they had been appointed magistrates in all the country towns. 
 It appeared to the government and parliament to be dangerous to leave 
 power in such hands : it was therefore judged expedient to regulate the 
 corporations, and to expel those magistrates, whose principles were inimi- 
 cal to the civil and ecclesiastical constitution of the kingdom. In this the 
 corporation act originated. At first, the sacramental clause was intended 
 to operate solely against the Romanists ; for, by dispossessing the presby^ 
 terians, the other provisions of the statute had established the influence of 
 the crown in all the corporations of the kingdom ; because the parliament 
 was apprehensive, that in the next reign, under the influence of a popish 
 king, all the corporation offices would be filled with Romanists. Besides, 
 before the passing of the act of uniformity, those who were afterwards 
 
 * 13 Car. II., c. 2. 
 
304 RISE, PROGRESS, AND IMPROVEMENT 
 
 called dissenters, were then within the inclosure of the churcli, and conse- 
 quently participated in her sacraments, so that the sacramental clause must 
 therefore have been intended as a guard against the Romanists, to whom 
 it most effectually applied, and not against those who were afterwards called 
 dissenters, on whom, before the act of uniformity was passed, it could not 
 operate, because they then communicated with tlie established church. It 
 must also be allowed, that the original design of the test, was not so much 
 to exclude the protestant dissenters as the Romanists. It was brought in 
 under the well-founded apprehension of popery, and a popish successor to 
 Charles II. ; and when it was observed, during the debate in the commons, 
 that it was drawn in such a manner as to comprehend the protestant dis- 
 senters, the court endeavoured to avail themselves of that circumstance to 
 defeat the bill : but the dissenting members declared, that they would ra- 
 ther confide in the justice and generosity of parliament, to pass some fu- 
 ture bill in their favour, than be the occasion of retarding or defeating the 
 security, which the present bill was calculated to afford to the liberties of 
 their country. Their patriotism produced soon afterwards a bill for their 
 relief from the penal laws, but the prorogation of parliament prevented its 
 passing. Nevertheless, a bill passed the house annually, to indemnify dis- 
 senting members, who had either neglected, or conscientiously declined 
 taking the sacrament, so that, in effect, the test witli respect to them was 
 a dead letter. The particular test of receiving the sacrament, according 
 to the rites of the church of England, was calculated to exclude the pa- 
 pists, rather than the protestant dissenters ; as it was not an uncommon 
 thing for the latter at that time, to receive the sacrament occasionally in 
 the church of England, in order to express their charity towards it, as a 
 part of the church of Christ. If it had been the design of the legislature 
 to exclude all from civil offices but those who have a real affection for the 
 constitution and the worship of the church, it is apprehended they would 
 have appointed the test to have been a stated and constant conformity to its 
 religious services, and not merely once taking the sacrament at churcli. 
 
 The disqualifying laws just mentioned, having been frequently the sub- 
 ject of pubUc discussion, and although now altogether set to rest by their 
 repeal, it may not be altogether uninteresting to state some of the argu- 
 ments for and against their repeal, which have been urged from time to 
 time, in as concise a manner as possible. The general principles advanced, 
 then, are as follow : — Every man has an undoubted right to judge for 
 himself in matters of religion ; nor should any mark of infamy, or any civil 
 penalty be attached to the exercise of this right : — Every man has a right 
 to the common privileges of the society in which he lives ; and among 
 these privileges, a capacity in law for serving his sovereign and country, 
 is one of the most valuable, distinguishing a legal capacity of service from 
 a right to an actual appointment, which depends upon the choice of his 
 
OF THE LAW OF ENGLAND. 305 
 
 sovereign, or of liis fellow subjects ; and this capacity of serving Hie state, 
 is a right of such high estimation, and of such transcendent value, the ex- 
 clusion from it is deemed a proper punishment for some of the greatest 
 crimes : — Actions, and not opinions, political or religious, are the proper 
 objects of human authority and cognizance : — No man who does not for- 
 feit that capacity of serving his sovereign and country, which is his natu- 
 ral right, as well as the honours and emoluments which may happen to be 
 connected with it, by overt acts, ought to be deprived of them ; and dis- 
 abilities which are not thus incurred, are unjust penalties, implying both 
 disgrace and privation : — Punishment, without the previous proof of guilt, 
 cannot be denied to be an injury ; and injuries inflicted on account of re- 
 ligion, are undoubtedly persecutions : — The ends of civil society can never 
 justify any abridgment of natural rights, that is not essential to these ends : 
 — The institutions of religion, and the ordinances of civil government, are 
 distinct in their origin and objects, in the sanctions that enforce them, and 
 the mode in which they are administered : — The institution of the Lord's 
 supper, being wholly of a religious nature, and appointed merely as a 
 memorial of his death, is improperly applied to the secular ends of civil 
 society : and if it be so applied, it is not only an improper, but in many 
 cases an insufficient test of the principles and character of those to whom 
 it is administered. Such are some of the leading principles which have 
 been the subjects of discussion in the debates that have occurred, both 
 among writers and among our legislators, in considering the expediency 
 of repealing the Test Act. Many of these arguments apply equally to the 
 Romanist and to the protestant dissenters, but we shall chiefly restrict our- 
 selves to the pleas of tlie dissenters. They repeatedly urged, that being 
 well affected to the sovereign and to the established government, and 
 ready to take the oaths required by law, and to give the fullest proof of 
 loyalty, they thought their scruples to receive the sacrament after the man- 
 ner, either of the church of England, or of any other church, as a qualifica- 
 tion for an office, ought not to have incapacitated them to hold public em- 
 ployments, either civil or military : they also alleged, that the occasional 
 communicating as a qualification for a place, cannot in the nature of things 
 imply, that those who thus receive it, mean to declare their full and entire 
 approbation of the whole constitution and frame of the established church. 
 Some men may be compelled by their necessities, or under the allurement 
 of secular advantages, to do what they would not do, if they were left to 
 their own free choice ; others, perhaps, may comply with the sacramental 
 test who are not even Christians, and who therefore cannot be supposed to 
 wish well to Christianity itself, or to any national establishment of it what- 
 soever. Hence they were led to think it could not be any real or eflfectual 
 security to the church of England. Conceiving that they had a right, as 
 men, to think for themselves in matters of religion, and that this right is 
 
 22 
 
306 RISE, PROGRESS, AND IMPROVEMENT 
 
 prescribed and sanctioned by the A uthor of Christianity : and that they had 
 a right, as subjects, to a common chance with their fellow subjects, for 
 offices of a civil and military trust, if their sovereign or fellow citizens should 
 have thought them worthy of confidence : they could not bring themselves 
 to the opinion, that any of the ends or objects of civil society require, that 
 these rights should be superseded, and they should have been excluded 
 from the service of the state. Their advocates pleaded on their behalf, 
 that the continuance of those acts which they said invaded their rights, is 
 so far from being necessary to the well-being of the state, or to the estab- 
 lishment of the national church, that they were actually pernicious both to 
 the state and to the church, and therefore they contended that they ought 
 to be repealed. Their inutility was shown by referring to the higher trust 
 of legislative authority, to which dissenters were always admitted without 
 hesitation or reserve. It was contended that an exciseman did not sustain 
 a more important office, neither was it requisite that he .should make a 
 profession of his Christian faith, more than a member of the houses of 
 commons or peers. The principles of the dissenters, their attachment to 
 the constitution, and their zeal in its support, have been sufficiently mani- 
 fested, in a variety of instances, ever since the Revolution, and that, there- 
 fore, the exclusion from their service of the public was neither necessary 
 nor beneficial to the state : and that the continuance of their disabilities 
 was unnecessary for the safety and honour of the church. An ecclesiastic 
 cal establishment requires a legal provision for its ministers, but it does not 
 require for its laity, any exclusive privilege or right to civil and military 
 trusts. The establishment of the church of England consisted, they said, 
 in her tithes, her prebendaries, her deaneries, and her bishoprics. These 
 constituted her establishment before the corporation and test acts had any 
 existence, and in the event of a repeal they would still continue to consti- 
 tute her establishment. There were no such acts in Scotland where there 
 is an establishment. In Ireland these acts liad been repealed, and yet the 
 established church of Ireland remained. There were no such acts in Hol- 
 land, Russia, Prussia, Germany, &c. Upon an appeal to history, it has 
 been argued that the civil government maintained itself in former timep, 
 when uncojinecled with the church. In this connexion we may refer to 
 the speech of Mr Fox, an able advocate for the repeal of the disabling 
 statutes; who maintained that no human government had any right to 
 inquire into men's private opinions, to presume that it knows them, or to 
 act on that presumption. " Men," said he, " should be tried for their 
 actions, and not for their opinions. If this was true with respect to poli- 
 tical, it was, he said, more peculiarly so with regard to religious opinions. 
 In the position that men's actions, and not their opinions, were the pro- 
 per objects of legislation, he contended that he was supported by the gen- 
 eral tenor of the laws of the land. History, however, afforded one ex- 
 
OF THE LAW OF ENGLAND. 307 
 
 ception in the case of the Roman catholics. The Roman catholics, or 
 rather the papists, as they were then properly denominated, had been then 
 supposed by our ancestors to entertain opinions that might lead to mis- 
 chief in the state. But it was their acknowledging a foreign authority 
 paramount to that of the crown, and not their opinions which justly 
 alarmed our ancestors : their political opinions, therefore, which they at- 
 tached to their religious creed, were dreaded and justly dreaded, as ini- 
 mical to the constitution. Laws were, therefore, enacted to guard against 
 tlie pernicious tendency of their political opinions : and the principle thus 
 adopted," continued Mr Fox, " if not founded on justice, was at least 
 followed up with consistency. Their influence in the state was feared, and 
 they were not only restricted from holding offices of power or trust, but 
 rendered incapable of purchasing lands, or acquiring influence of any 
 kind." 
 
 On the other hand, Mr Pitt admitted as a general principle, that the 
 religious opinions of any set of men were not to be restrained or limited, 
 unless they should be found likely to prove the source of inconvenience to 
 the state : nor ought the civil magistrate, in any other point of view, to 
 interfere with them ; but he maintained that when religious opinions are 
 such as may produce a civil inconvenience, the government has a right to 
 guard against the probability of that civil inconvenience being produced ; 
 nor ought they to wait till, by being carried into action, the inconvenience 
 has actually arisen. It was not, therefore, on the ground, that the dis- 
 senters would do any thing to affect the civil government of the country, 
 that they had been excluded from civil offices ; but that if they had any 
 additional degree of power in their hands, they might use it to affect not 
 only the civil government, but the established church. He also contended 
 that an established church is necessary to the civil government of a country ; 
 and, of course, that a settled provision for its ministers is requisite ; and, 
 also, consequently, that it was highly improper, and even dangerous to its 
 safety, to distribute its offices and emoluments among men who were hos- 
 tile to its government, its discipline, and its principles, however respectable 
 their characters might otherwise be in private life. He maintained that 
 this prohibition from office was neither meant by the legislature, nor in 
 fact did it operate, as any degradation, disgrace, or punishment on dis- 
 senters. These laws existed for many years, with great advantage, as a 
 guard and fence to the established church, and few or no prosecutions for 
 their breach have ever been attempted : it had been long the custom to 
 pass an annual iJidemnity act to protect all dissenter's who entered parlia- 
 ment, or who accepted offices from the pains and penalties of tlie test and 
 corporation acts, and in corporate towns, and many public offices, tlie 
 obligation to qualify was, in fact, considered as a kind of dead letter, long 
 before the act was repealed, and an informer would have been thought an 
 
308 RISE, PROGRESS, AND IMPROVEMENT 
 
 odious cliaracter. And tlie fourth section of the twenty-fifth arlicie of 
 the union between the kingdoms of England and Scotland expressly stipu 
 lates, that no test whatever sliall be exacted from the native subjects of 
 Scotland, members of" the true protestant presbyterian establisliment of that 
 kingdom — " and further, her majesty, with advice aforesaid, expressly 
 declares, and statutes, that none of the subjects of this kingdom shall be 
 liable to, but all and any one of Ihemfor ever free from, any oath, test, or 
 subscription fvithin this kingdom, contrary to, or inconsistent with, the 
 foresaid true protestant religion and presbyterian church government, wor- 
 ship, and discipline, as above establisl^ed, and that the same within tlie 
 bounds of this church and kingdom, shall never be imposed upon, or re- 
 quired of them in any sort." 
 
 An act for repealing so much of sevenil acts, as imposes the necessity of receiving the sa- 
 crament of the Lord's supper as a qualification for certain offices and emplo) ments, repeals 13 
 Car. II., c. 2., the 25 Car. II., c. 2., and the 16 Geo. II., c. 30; so much of them, at least, 
 as imposes the necessity of receiving the sacrament according to the rites of the church of Eng- 
 land. 1 1. And whereas, the proteslJint episcopal church of England and Ireland, and the doc- 
 trineand discipline thereof, and the protestant presbyterian church of Scotland, and its doctrine, 
 discipline, and government, are by the laws of this realm, severally established, permanent- 
 ly, and inviolably ; and whereas, it is just and fitting, that on tlie repeal of such parts of the 
 said acts as impose the necessity of taking the sacrament of the Lord's supper, according to 
 the rites and usage of the church of England, as a qualificjition for office, a declaration to the 
 following eilect should be substituted in lieu thereof: be it therefore enacted, that every 
 person who shall hereafter be placed, elected, or chosen, in, or to, the office of mayor, alder- 
 man, recorder, bailitf, town-clerk, or common council-man, or in, or to any office of magis- 
 tracy, or place, trust, or employment relating to the government of any city, corporation, 
 borough, or cinque port, witliin Engl.an^ and Wales, or Berwick-upon-Tweed ; shall, witli- 
 in one calendar month, next before, or upon his admission into imy of the aforesjiid offices, 
 or trusts, make, and subscribe the declaration following: — 
 
 *' I, A. B., do solemnly, and sincerely, in the presence of God, profess, testify, and declare, 
 upon the true faith of a Christian, that I will never exercise any power, authoiity, or influ- 
 ence, which I may possess by virtue of the office of . . . .to injure, or weaken tlie pro- 
 testant church, as it is by law established in England, or to disturb the said church, or tiie 
 bishops and clergy of the Sfiid church, in the possession of any rights, or privileges, to which 
 such church, or the said bishops and clergy, are, or may be, by law, entitled." 
 
 III. The said declaration shall be made and subscribed as aforesaid, in the presence 
 of such person, or persons, respectively, who by the charters or usiiges of the said respective 
 cities, corporations, boroughs, and cinque ports, ought to administer the oath, for due execu- 
 tion of the said offices, or places, respectively, and in default of such in the presence of twa 
 justices of tlie peace of the said cities, corporations, boroughs, and cinque ports, if such there 
 be, or otherwise in the presence of two justices of the peace, of the respective counties, &c., 
 wherein they are situated : which said declaration shall either be entered in a book, roll, or 
 other record of the city, &c. IV. If any person placed, elected, or chosen, into any of the 
 aforesaid offices or places, shall omit, or neglect to make and subscribe the said declaration, 
 in manner above mentioned, such placing, election, or choice, shall be void ; and it shall 
 not be lawful for such person to do any act in the execution of the office, or place, into 
 which he shall be chosen, elected, or placed. V. Every person who shall hereafter be ad 
 mitted into any office or employment, or who sliall accept from his majesty, his heirs and 
 successoi's, any patent, grant, or commission, and who by his admittiince into such office, 
 &c. , or acceptance of the same, oi- by the receipt of any pay, salary, fee, or wages, by reason 
 thereof, would by the laws in force immediately before the passing of this act have been 
 required to take the sacrament of the Lord's supper, in the church of England, shall, within 
 
OF THE LAW OF ENGLAND. 309 
 
 six calendar montlis after his admission to such office, &c., or his acceptance of such patent, 
 &c., make and subscribe the aforesaid declaration, or in default thereof, his appointment, 
 &c , shall be wholly void. VL The aforesaid declaration shall be made and subscribed, in 
 his majesty's high court of chancery, or in the court of king's bench, or at the quarter ses- 
 sions of the county, &c., where the person resides : and the court in which such declarations 
 shall be made and subscribed, shall cause the same to be preserved among the records of 
 the said court. VII. Provided, always, that no naval officer below the rank of rear-admi- 
 ral, and no military officer below the rank of major-general in the army, or colonel in the 
 militia, shall be required to make, or subscribe, the said declaration, in respect of his naval 
 or military commission : and that no commissioner of customs, excise, stamps, or taxes, or 
 any person, holding any of the offices, concerned in the collection, management, or receipt 
 of the revenues, which are subject to the said commissioners, or of the post-master general, 
 shall be required to make, or subscribe the said declaration, in respect of their said offices, 
 or appointments : provided, also, that nothing herein contained, shall extend to require any 
 naval, or military ofllcer, or other person, as aforesaid, upon whom any office, place, com- 
 mission, appointment, or promotion, shall be conferred, during his absence from England, 
 or within three months previous to his departure from thence, to make and subscribe the 
 said declaration, until after his return to England, or within six months after. VIII. All 
 persons now in the actual possession of any office, command, place, trust, service, or employ- 
 ment, or in the receipt of any pay, salary, fee, or wages, in respect of, or as a qualification 
 for which, by virtue of, or under any of the previous acts, they respectively ought to have 
 heretofore taken, or ought hereafter to receive, the said sacrament of the Lord's supper, shall 
 be, and are hereby confirmed in the possession and enjoyment of their said several offices, 
 commands, places, trusts, services, employments, pay, salary, fees, and wages, respectively, 
 notwithstanding their omission or neglect to take, or receive, the sacrament of the Lord's 
 supper, and are hereby indemnified, freed, and discharged from all incapacities, disabilities, 
 forfeitures, and penalties whatsoever, already incurred, or which they may hereafter incur, in 
 consequence of neglect or omission, and that no election of, or act done, or to be done, by 
 any such persons, or under their authority, and not yet avoided, shall be hereafter questioned, 
 or avoided, by reason of any such omission, or neglect; but that every such election and act 
 shall be as good, valid, and effectual, as if they had duly received the sjicrament of the Lord's 
 supper. IX. Provided, nevertheless, that no act done in the execution of any of the cor- 
 porate, or other offices, places, trusts, or commissions, by any person omitting, or neglecting, 
 shall, by reason thereof, be either void, or voidable, as to the rights of any othei- person not 
 privy to such omission or neglect, or render him liable to any action or indictment* 
 
 The following act was introduced into parliament by the marquis of Lansdowne, and relates 
 to offences against the ;)t'rso7j, being a continuation of the improvements in the administra- 
 tion of the criminal law of the kingdom, generally accomplished by Sir Robert Peel's acts, 
 which related principally to offences against the properli/ of individuals. The first section 
 repeals the whole or parts, of between fifty and sixty acts of parliament passed from the 
 9 Henry III. to the 3 George IV. The second section blots the crime of petit treason en- 
 tirely from the statute book. Petit treason was either when a servant killed his master, a 
 wife her husband, or an ecclesiJistical person his bishop, to whom he owed faith and obedience. 
 These crimes, especially the second instance, have in almost all ages and countries, 
 been distinguished from the ordinary crime of murder. With regard to the different 
 kinds of criminal homicide, murder, and manslaughter, the law is left pretty much in the 
 same state as it was before; f but one or two alterations have been introduced. The act of 
 Henry VIII. provided that a subject of the king who committed murder in a foreign state, 
 might be tried in any county which the king should appoint ; but in this ciise, an exam- 
 ination of the accused party must first have taken place before the king's counsel, or three of 
 them. I This was after^vards extended to accessories before the fact; but the seventh section 
 of lord Lansdowne's act, directs justices of the peace to proceed against the offender, as if the 
 murder had been committed within his ordinary jurisdiction. The trial is to take place in 
 the ordinary way by a jury of the county, and persons entitled to the benefit of peerage, ar« 
 
 • 9 Geo. IV., c. 17. f 33 Geo. HI, c. 23. M3 Geo. III., c 113. 
 
310 RISE, PROGRESS, AND IMPROVEMENT 
 
 to be dealt with as heretofore. The crime of accessory after the fact to murder, instead of 
 being a capital felony, with benefit of clerg)', as formerly, is now punishable by transporta- 
 tion for life, or imprisonment, with or without hard labour. An aggravated case, in which 
 one Howard attempted murder by means of a blunt weapon, induced the legislature to ex- 
 tend the principle of lord Ellenborough's act, far be}ond its original limits. The case al- 
 luded to could not be dealt with as a capital offence, although the circumstances were ex- 
 ceedingly aggravated and monstrous under which it was committed ; because lord Ellen- 
 borough's act includes * only cases of shooting or attempting to shoot, and stabbing, and cut- 
 ting, the latter of which can only be applied to sharp weapons, and it was therefore deemed 
 necessary to bring such cases as Howard's •within the operation of lord Ellenborough's statute, 
 an omission which this act remedies. 
 
 The eleventh and twelfth sections of the present act, are substituted for that part of lord 
 Ellenborough's act, which related to the offences of stabbing, cutting, shooting, &c., with 
 intent to murder, maim, disfigure, or disable any person, or with intent to resist or prevent 
 the lawful apprehension of the party himself, or any of his accomplices : to which is added, 
 to ivound in any way, which, it is apprehended, will include weapons of all descriptions, whe- 
 ther they be sharp or blunt. If, however, this statute is acted upon to the letter, the conse- 
 quences will be sweeping indeed : for every aggravated assault on a constable, when the man 
 of authority gets a broken head, a circumstance of frequent occurrence in ale-house squab- 
 bles, will become a capital felony, not only on the person actually inflicting the blow, but on 
 all present who may aid and abet the resistance, or the prevention of his lawful apprehension. 
 In cases where several persons are indicted for assaulting a constable, it generally happens 
 that only one or two actually struck the prosecutor, but that the rest were present and join- 
 ing in the affray : and it is frequently a difficult matter for a jurj' to decide when a great num- 
 ber of persons have been assembled together, whether some of those who are indicted were 
 actually engaged in resisting the constable, or merely lookers-on enjoying the row, or oven 
 taking tlie constable's part: this has always afforded a fair opportunity for a spiteful neigh- 
 bour, and, it may be added too, for ill-natured justices of the peace, who are desirous of bring- 
 ing their victim within the clutches of the law, to attempt the conviction of an innocent 
 man : and there is little doubt that imprisonment is frequently awarded to those who have 
 had no share in the breach of the peace. And under this statute, should blood be drawn, an 
 indictment containing four or five counts, gravely stating, that A. B., the principal offender, 
 with a certain weapon, to wit, an iron poker of the value of sixpence, inflicted severe wounds 
 of the length of two inches, and depth of half an inch, fii-st w ith inttnt to murder, then to 
 maim, then to disfigure and disable, and lastly with intent to resist and prevent the lawful 
 apprehension of the said A. B. •, and further stating, that C. D. and a dozen others were pre- 
 sent, counselling, aiding, abetting, comforting, assisting, and maintaining the said A. B., 
 the aforesaid felony to do and commit : on which indictment if the jury are convinced that 
 any of the persons were present, aiding, or abetting the principal offender in resisting his 
 lawful apprehension, they cannot conscientiously do otherwise, than find such pei-sons guilty 
 of a crime which the law declares to be a capital ftlony. In cases of this kind, a line might 
 with propriety be drawn between cases where there is express malice, and those where the 
 law only implies malice, and that at least the jury might be enabled by their verdict to find 
 all, or any of the defendants guilty of a misdemeanor only, so as to bring them -within the 
 operation of a subsequent section of the act, which makes a person assaulting with intent to 
 resist or prevent the lawful apprehension or detention of the party assaulting, or of any other 
 person, liable to imprisonment for two years, and to be fined. 
 
 At the suggestion of lord Tenterden a clause was inserted in the house of lords, which en- 
 ables the jury on an indictment for an attempt to commit murder, except in cases of an at- 
 tempt to poison, to find by their vcidict, that by his own voluntary act, the principal desisted 
 from carrying his purpose into fall effect : in which case punishment of death should not be 
 awarded, but the offender, his counsellors, aiders, and abettors, be deemed guilty of felony, 
 and liable to two yeJirs' imprisonment : this provision was however rejected by the commons. 
 Tlie clause which relates to the offence of administering drugs, with intent to procure the mis- 
 
 • 43 Geo. Ill , c. 58. 
 
OF THE LAW OF ENGLAND. 311 
 
 carriage of women, either quick, or not quick with child, is a simple re-enactment of the 
 first two sections of lord Ellenborough's act in a more concise form : by it, when a mother 
 was indicted for the murder of her bastard child, and was acquitted for the murder, the jury 
 might still find that she was delivered of a bastard child and endeavoured to conceal its 
 birth, for which she might be punished by two years' imprisonment. By the present act, a 
 woman though acquitted of the murder, may still be found guilty under the same indict- 
 ment for the concealment, or may be indicted at once for the concealment as a substantive 
 ofience, and punished as heretofore. There Avas an absurdity in indicting a person for mur- 
 der, when the prosecutor might be satisfied from the evidence within his own reach, that the 
 child had never been bom alive. It is remarkable, that by the omission of the words, 
 •* which if born alive, would have been a bastard," married women may be indicted for 
 concealing the birth of their legitimate children, or found guilty of concealment under an 
 indictment for murder, whereas, before, if a married woman was acquitted of the murder, 
 she could not have been found guilty of the concealment. 
 
 Considerable alterations are made in this act, with regard to the forcible abduction of wo- 
 men, with the view of gaining possession of their property.* In order to make the ofl^ence 
 complete, under the former statutes relating to this offence, a marriage must have taken 
 place, and both the abduction and the marriage must have been in England. But by the 
 present act, taking or detaining any woman who has, or expects to have, any real or person- 
 al property, from motives of lucre, wU/i intent to marry or defile her, or cause her to be 
 married or defiled by any other person, is felony, and the party is liable to transportation for 
 life. The unlawful abduction from her parents or temporary guardian, of any girl under 
 the age of sixteen, is punishable by fine and imprisonment; a clause called for by the aggra- 
 vated case of Wakefield, who carried off Miss Turner from school. Some important altera- 
 tions were made with respect to bigamy : as the law formerly stood, a person whose consort 
 had been abroad for seven years, though known to be living, or if a divorce a mensa et thoro 
 only had taken place, might marry again with impunity : by this act, ignorance of the above 
 consort's being alive, is necessary to make such second marriage lawful. 
 
 The remaining sections of the act relate principally to assaults on 
 different persons, either privileged from their office, or to whom public 
 policy makes it necessary to give special protection, and to convictions 
 before magistrates. It was enacted so far back as the reign of Edward 
 III., that to arrest a clergyman, in a church, or churchyard, while attend- 
 ing divine service, subjected the party to imprisonment and ransom at 
 the king's will, and to give satisfaction to the clergyman. The object 
 which the legislature had in view, was to deter any one from interfering 
 with the decent and reverent performance of public religious duties ; for 
 it seems it was ineffectual as a protection to the clergyman himself, in as 
 much as the arrest, if not made on a Sunday, was deemed good in law. 
 Considering, however, that witnesses or other persons attending to give evi- 
 dence, or otherwise connected with a cause in a court of law, are privi- 
 leged from arrest, while going to, attending on, and returning from court ; 
 it would seem that, by the modified protection granted to clergymen, en- 
 gaged in the particular service of God, compared with that granted to those 
 engaged in promoting the administration of justice, disrespect rather than 
 reverence is shown to that holy service. Very few instances, except dur- 
 ing the heat of the grand rebellion, of arrests attempted upon clergymen, 
 while engaged in the performance of divine service, have ever occurred ; 
 
 * II Hen. v., c. 32 ; 39 Eliz., c. 9 ; and 1 Geo. IV., c. 115. 
 
312 RISE, PROGRESS, AxVD IMPROVEMENT 
 
 but now, since lord Lansdowne's act has come into operation, instances of 
 this offence will be more frequent, as it is only now a simple misdemeanor. 
 Tlie statute * which made it a capital felony to assault, strike, or wound 
 a privy counsellor, in the execution of his office, is re-enacted. This act 
 introduces an important alteration in the administration of justice, with 
 respect to assaults, and it will be a considerable benefit to the public; that 
 prosecutions for trifling assaults, in which the prosecutor is frequently as 
 guilty as the defendant, be banished from the courts of quarter sessions, 
 though the change adds to the already exorbitant powers of justices of the 
 peace : scarcely a fiftieth part of assault cases that come before magistrates 
 in their private houses, were ever brought before a court : in many in- 
 stances, the quarrel was settled before the sessions; in others, the magis- 
 trates bound over the offender to keep the peace, and dismissed the 
 complaint ; and in those only where the intervention of a jury was absolutely 
 requisite, or where the private resentment of the magistrate, or of an in- 
 fluential neighbour, called for a public exposure, were the most extreme 
 measures resorted to. f 
 
 The act itself commences with expressing the expediency of repealing various statutes 
 then in force, in that part of the united kingdom called England, relative to oflences against 
 the pel-son, for the purpose of amending and consolidating their provisions into one act: it 
 therefore repeals, either partially or entirely, all the acts in the statute book relating lo 
 oflences against the perosn, from tlie 9 Henry III., c. 25, to the 3 George IV., c. 114. 
 II. Petit treason, in both principals and accessories, shall be deemed no greater ofl'ence than 
 murder, and to be dealt with accordingly. III. Murderers and accessories, before the fact, 
 shall'suffer death as felons ; accessories, after the fact, to be transported for life, or imprison- 
 ed, with or without hard labour, not exceeding four years. IV. Murderers shall be executed 
 on the day next but one, after that on which the sentence shall be passed, unless it happen to 
 be a Sunday, and in that case on the Monday following, and their bodies either to be dissected 
 or hung in chains, at the discretion of the court. V. When the court orders dissection, and 
 if the murderer is to be executed within Middlesex, or the city of London, his body is imme- 
 diately to be conveyed, by the sherift' or his officers, to the surgeons' hall, or wherever the 
 surgeons' company shall appoint, for dissection; and if executed elsewhere, the murderer's 
 body shall be delivered to such surgeon, for dissection, as the court shall appoint. VI. After 
 judgment, every murderer shall be coi.fined, in some safe place within the prison, apart from 
 all other prisoners, and fed with bread and water onlj', and with no other food, or liquor, 
 except in case of receiving the sacrament, or in case of any sickness or wound, in which the 
 surgeon of the prison may order other necessaries to be administered ; and no person, but the 
 gaoler and his servants, and the chaplain and surgeon of the prison, shall have access to any 
 such convict, without the permission, in writing, of the judge who tried him, or the sherifl", 
 or his deputy ; provided, that in the case of a respite, the judge, in writing, may relax all 
 these restraints and regulations, during the period of the respite. VII. British subjects 
 charged, in England, with any murder committed out of the kingdom, either as principals, 
 or as accessories, either before, or after the fact ; any justice of the peace of the county or 
 place, where the parties so charged shall be, may take cognizance of the offence, and proceed 
 as if the murder had been committed within the limits of his ordinary jurisdiction : persons 
 entitled to the privilege of peerage, guilty as aforesaid, shall be tried by their peers. 
 VIII. In the event of any person dying in England, who shall have been feloniously 
 stricken, poisoned, or otherwise hurt upon sea, or at any place out of England, or d^ing out 
 
 • £ Anne, c. 1 6, t Law Magazine or Quarterly Review of Jmisprudeuce for 1828, Vol. I . p. 119- 
 
OF THE LAW OF ENGLAND. 313 
 
 of England, who had been feloniously stricken, or poisoned, &c., in England, or upon the 
 sea, every such offence, whether it amount to murder, or manslaughter, or to bein^ ac- 
 cessory, before, or after the fact, may be dealt with, inquired of, tried, determined, and 
 punished in the county or place in England, where the death from such causes shall happen. 
 IX. Every person convicted of manslaughter shall be liable, at the discretion of the court, 
 to be transported for life, or for fourteen years, or to be imprisoned, with or without hard 
 labour, for four years. X. No punishment, or forfeiture, shall, however, be incurred by any 
 person who shall kill another by misfortune, or in his own defence, or in any manner with- 
 out felony. XL If any person, unlawfully, and maliciously, shall either administer, or 
 attempt to administer, to any person, or cause the same to be taken by any person, any poi- 
 son, or other destructive thing, or shall unlawfully, and maliciously attempt to drown, suffo- 
 cate, or strangle any person, or shoot at any person, or by drawing a trigger, or in any other 
 manner attempt to discharge any kind of loaded arms at any person, or shall stab, cut, or 
 wound any person, with intent, in any of these cases, to murder such person ; any such of- 
 fender, with all counsellors, aiders, or abettors, shall be guilty of felony, and shall suffer 
 death. XII. If any person shall, milawfully and maliciously, shoot at any person, or by 
 drawing a trigger, or in any other manner attempt to discharge any loaded arms at any 
 person, or to stab, cut, or wound any person, with intent, in either case, to maim, disfigure, 
 or disable such person, or do him some other grievous bodily harm, or with intent to resist, 
 or prevent the offending party's lawful apprehension, or detainder, or that of any of his ac- 
 complices, any such offender, with all his counsellors, aiders, or abettors, shall be guilty of 
 felony, and suffer death accordingly ; provided, however, that if it appear on the trial that, 
 if death had ensued in consequence of any of these offences, the same would not have amount, 
 ed to the crime of murder, he shall be acquitted of felony. XIII. If any person, with in- 
 tent to procure the miscarriage of any woman, then being quick with child, shall unlawfully 
 and maliciously administer to her, or cause her to take any poison or other noxious thing, 
 or shall use any instrument, or other means whatever, with the like intent, every offender, 
 with their counsellors, aiders, or abettors shall be guilty of felon}', and suffer death as a 
 felon : and any person guilty, as above, of administering poison, &c., to a woman who is 
 not quick with child, with the rx)unsellors, &c., are guilty of felony, and shall be transported 
 for fourteen years, or be imprisoned, with or without hard labour, for three years, and if 
 a male, to be whipped three times. XIV. Ifany woman is delivered ofa child, and by secret 
 burying, or otherwise disposing of the dead body, shall endeavour to conceal its birth, she 
 shall be guilty of a misdemeanor, and liable to be imprisoned, with or without hard labour, 
 for two years ; and it shall not be necessary to prove whether the child died before, at, or after 
 the birth ; provided that, if the mother is acquitted of the murder of her child, and, in 
 case it appears in evidence, the jury shall find that she was delivered of a child, and that she 
 endeavoured, by secret burying, or otherwise, to conceal its birth ; and, on conviction, the 
 court may pass such sentence, as if she had been indicted for concealment. XV. Every 
 person convicted of the abominable crime of sodomy, committed either with mankind or 
 any other animal, shall suffer death as a felon. XVI. Every person convicted of the crime 
 of rape, shall suffer death as a felon. XVII. If any person carnally know and abuse any 
 girl under ten years of age, he shall be guilty of felony, and suffer death as a felon : and 
 ifany person carnally know and abuse a girl above ten, and under twelve years of age, he 
 sliall be guilty of a misdemeanor, and liable to imprisonment, with or without hard labour, 
 for such term as the court shall award. XVIII. And, whereas, on trials for the crimes of 
 sodomy and rape, and of carnally abusing girls under the ages before mentioned, offenders 
 frequendy escape on account of the difficulty of the proof which has been required of the 
 completion of these several crimes; for remedy, it is now enacted, that it shall not be 
 necessary, in any of those cases, to prove the actual emission of seed, in order to constitute a 
 carnal knowledge, but that it shall be deemed complete upon proof of penetration only. 
 XIX. If any woman shall have any interest, whether legal or equitable, present or future, 
 absolute, conditional, or contingent, in any real or personal estate, or shall be an heiress 
 presumptive, or next of kin, to any one having such interest; and ifany person, for motives 
 of lucre, take a^vay, or detain such woman, against her will, with intent to marry or defile 
 her, or to cause her to be manied or defiled by any other person, such offender, with his 
 
 2 H 
 
3U RISE, PROGRESS, AND IMPROVEMENT 
 
 counsellors, aiders, and abettors, shall be guilty of felony, and liable to transportation for Hf«, 
 or to imprisonment, with or without hard labour, for any term not exceeding four years. 
 XX. Any person unlawfully taking, or causing to be taken, any unmarried girl, under the 
 age of sixteen years, out of the possession, or against the will of her father, or mother, or of 
 any other person having the lawful care or charge of her, he shall be guilty of a misdemeanor, 
 and liable to suffer such, punishment, by fine, or imprisonment, or both, as the court 
 shall award. XXI. Any person, maliciously, either by force or fraud, leading, taking, de- 
 coying, enticing away, or detaining any child, under the age of ten years, with intent to 
 deprive the parents, or any other person having lawful charge, or possession of such child, 
 or with intent to steal any article upon, or about the person of such child, to whomsoever the 
 article may belong ; or if any person, with the aforesaid intention, shall receive, or harbour 
 any child, knowing the same to have been led, taken, decoyed, or enticed away, or de- 
 tained by force or fmud, and all the counsellors, aiders, or abettors, shall be guilty of felony, 
 and liable to be transported for seven years, or to be imprisoned, with or without hard labour, 
 for two years, and if a male, to be whipped : but tliis act does not extend to the father of an 
 illegitimate child, or having any right to the possession of sucli child, taking such child out 
 of the possession of the mother. XXII. If any married person shall marry any other 
 person, during the life of the former husband or wife, whether the second marriage shall have 
 taken place in England, or elsewhere, the offender, and the counsellors, &c., are guilty of 
 felony, and liable to transportation for seven years, or to imprisonment, with or without hard 
 labour, for two years ; and the offence may be dealt with, tried, &c., in the county where 
 the offender sliall be apprehended : provided alwajs, that notiiing herein contained shall 
 extend to any second marriage contracted out of England, by any other than a subject of his 
 majesty, or to any person marrying a second time, whose husband or wife shall have been con- 
 tinually absent from such person for the space of seven years then last past, and shall not have 
 been known by such person to have been living within that time, or shall extend to any person, 
 who at the time of such second marriage, shall have been divorced from the bond of the first 
 marriage, or to any person whose former marriage shall have been declared void by the sentence 
 of any court of competent jurisdiction. XXIII. To arrest a clergyman upon any civil pro- 
 cess while he is performing divine service, or knowing that he is either going to, or return- 
 ing from the performance of divine service, is a misdemeanor, to be punished by fine or im- 
 prisonment, or both. XXIV. To assault and strike, or wound any magistrate, officer, or 
 other person whatsoever, lawfully autliorized on account of tlie exercise of his duty in, or con- 
 cerning the preservation of any vessel in distress, or of any vessel, goods or effects, wrecked, 
 stranded, or cast on shore, tr lying under water, subjects the offender to seven years' trans- 
 portation, or imprisonment, with or without hard kbour, for such term as the court shall 
 award. XXV. When any person shall be charged with, and convicted of, any of the follow- 
 ing offences as misdemeanors : — of assault with intent to commit felony; of assault upon any 
 peace officer, or revenue officer in the due execution of his duty, or any of his assistants ; or 
 of an assault with intent to resist, or prevent the lawful apprehension, &c., of any criminal ; 
 or of an assault in pursuance of any cxinspiracy to raise the rate of wages ; in any such cases, the 
 court may sentence the offender to be imprisoned, with or without hard labour, for any term 
 not exceeding two years, and may also, if tlie court thinks fit, fine, and require sureties to 
 keep the peace from the offender. XXVI. Any person unlawfully and forcibly hindering 
 any seaman, keelman, or caster, from working at, or exercising his lawful trade, business, 
 or occupation, or shall beat, wound, or use any other violence to any person, with the inten- 
 tion to deter or hinder him from selling or buying any wheat or other grain, flour, meal or 
 malt, in any market or other place, or shall beat, wound, or use any other violence to any 
 person having the care or charge of grain, &c., whilst on its way to, or from any city, market 
 town, or other place, with intent to stop the conveyance of the same ; on conviction before two 
 justices of the peace, such offender shall be imprisoned, and kept to hard labour, for any term not 
 exceeding three calendar months. XXVII. In order that a summary power for punishing 
 persons for common assaults and batteries be provided, it is enacted, that where any person 
 shall unlawfully assault, or beat any other person, it shall be lawful for two justices of the peace, 
 upon complaint of the party aggrieved, to hear and determine the offence, and the offender 
 on conviction shall forfeit, and p<iy such fine as shall appear to them to be meet, not ex- 
 
OF THE LAW OF ENGLAND. 315 
 
 ceeding with costs, the sum of five pounds, to be paid to the overseers of the poor. And if 
 the fine with costs, shall not be immediately paid, the offender shall be committed, for any 
 term not exceeding two calendar months, unless the fine and costs be sooner paid : but if the 
 justices shall deem the assault, &c., not to be proved, or to have been justified, or of so trifling 
 a nature as not to merit any punishment, and shall dismiss the complaint accordingly, they 
 shall forthwith deliver a certificate under their hands to the alleged offender, stating the fact 
 of such dismissal. XXVIII. Such certificate or conviction, shall bar ail other proceeding?, 
 civil or criminal, for the same cause. XXIX. But whenever the justices shall find such 
 assault or battery to have been accompanied by any attempt to commit felony, or shall be of 
 opinion, that the offence is a fit subject for a prosecution, by indictment, they shall abstain 
 from any adjudication thereon, but deal with the case in the same manner as before the 
 passing of this act. Justices of the peace are not authorized by this act, to hear and deter- 
 mine any case of assault or robbery, where any question shall arise as to the title to any lands, 
 tenements, or hereditaments, or to any interest therein, or accruing therefrom, or as to any 
 bankruptcy or insolvency, or any execution under the process of any court of justice. 
 
 XXX. If any master of a merchant vessel shall, during his being abroad, force any man on 
 shore, or wilfully leave him behind in any of his majesty's colonies, or elsewhere, or refuse 
 to bring home with him again, all such of the men as he carried out with him, as are in a 
 condition to return when he shall be ready to proceed on his homeward bound voyage, he 
 shall be guilty of a misdemeanor, and on conviction, shall be imprisoned for such term as the 
 court shall award ; such oflences may be prosecuted by indictment, or by information at the 
 suit of the attorney-general, in the court of king's bench, and it may be alleged in the in- 
 dictment, or information, to have been committed at Westminster, in the county of Mid- 
 dlesex : and this act authorizes the court to issue one or more commissions, if necessary, for 
 the examination of witnesses abroad, whose depositions shall be received in evidence. 
 
 XXXI. Every accessory before the fact, to any of the felonies punishable under this act, for 
 whom no punishment has been herein before provided, shall be liable at the discretion of 
 the court, to be transported for fourteen years, or to be imprisoned, with or without hard 
 labour, for three years, and every accessory after the fact, shall be liable to imprisonment, 
 
 . except in cases of murder,.) with or without hard labour, for two years : and counsellors, 
 aiders, and abettors, in any misdemeanor, are liable to be punished as principal offenders. 
 
 XXXII. All the indictable offences mentioned in this act, which shall be committed with- 
 in the jurisdiction of the admiralty of England, shall be deemed to be offences of the same 
 nature, and liable to the same punishments as if they had been committed upon the land 
 in England, and may be dealt with, inquired of, tried, and determined in the same manner 
 as any other offences committed within the same jurisdiction, but nothing herein contained, 
 shall alter, or affect any of his majesty's land or naval forces. XXXIII. And, for the 
 more effectual prosecution of oflences punishable upon summary conviction, by virtue of this 
 act, be it enacted, that where any person shall be charged on the oath of a credible witness 
 before any justice of the peace, with any such offence, he may summon the offender to ap- 
 pear before any two justices of the peace, at' a time and place to be named in the sum- 
 mons, and if he shall not appear accordingly, then the justices may either proceed to hear, 
 and determine the case ex parte, or may issue their warrant for his apprehension, and bring- 
 ing him before them, or the justice if he thinks fit, may issue his warrant in the first instance, 
 without any summons. XXXIV. The punishm.ent of any offence, punishable on sum- 
 mary conviction, by virtue of this act, shall be commenced within three calendar months after 
 the commission of the offence, and not otherwise. XXXV. Contains the form of convic- 
 tion. XXXVI. No conviction shall be quashed for want of form, or be removed, by certio- 
 rari or otherwise, into any of his majesty's superior courts of record ; and no warrant of com- 
 mitments shall be held void by reason of any defect therein, provided that it be therein al- 
 leged, that the party has been convicted, and that by a good and valid conviction to sustain 
 the same. XXXVII. None of the provisions of this act, shall affect or alter any ect, so 
 far as it relates to the crime of high treason, or to any branch of the public revenue, or 
 any act for the prevention of smuggling, or any part of the act passed in the sixth year of 
 
 • 9 Geo. IV., c. 31. 
 
316 RISE, PROGRESS, AND IMPROVEMENT 
 
 this reign, entituled, " an act to repeal the laws relating to the combination of workmen, and 
 to make other provisions in lieu thereof." XXXVIII. And finally, nothing in this act 
 shall extend^to either Scotland or Ireland. * 
 
 On the 27th June, 1828, an act was passed for amending the law of 
 evidence, in the case of the Quakers or Friends, and the Moravians or 
 (Jnitas Fratrum, whose members have always refused to take oaths, mis- 
 taking our Saviour's injunction against prqfa?ie stveariiig, as if prohibiting 
 oaths before magistrates, " for confirmation, and as an end of strife," wliich 
 never could be his meaning, as he himself took an oath before Pilate, when 
 he was " adjured by the living God," when he answered immediately, and to 
 the point, although he had been silent before to their interrogatories. An oath 
 is either an affirmation or a denial of any thing, before one or more persons, 
 •who have authority to administer it, for the discovery and advancement of 
 truth and right, calling God to witness that the testimony is true : it is 
 therefore called sacramentum, a holy bond or tie : it is in law called a cor- 
 poral oath, because when the witness swears, he lays his right hand on tlie 
 holy evangelists, or New Testament. There are several sorts of oaths in 
 the English law, viz, juramentum promissionis, where oath is made either 
 to do, or not to do such a thing; juramentum purgationis, when a person 
 is charged with any matter by bill in cliancery, See.; juramentum probationis, 
 where any one is produced as a witness to prove or disprove any thing: 
 and juramentum triationis, when persons are sworn to try an issue, &c. 
 All oaths must be lawful, and allowed by the common law, or by some 
 statute; if they are administered by persons in a private capacity, or not 
 duly authorized, they are coram nonjudice, and void : and the administra- 
 tors are guilty of a high contempt, for doing it without lawful warrant, and 
 punishable by fine and imprisonment. Formerly, one who was to testify 
 on behalf of a felon, or person indicted of treason, or other capital offence, 
 upon an indictment at the king's suit, could not be examined on his oalh for 
 the prisoner and against the king, though he might be examined without 
 oath; but now witnesses on behalf of the prisoner f upon indictment are 
 to be sworn to depose the truth, in the same manner as witnesses for the 
 king ; and if convicted of wilful perjury, shall suffer the punishment inflict- 
 ed for such offences. The evidence for the defendant in an appeal, 
 whether capital or not, or on indictment or information for a misdemeanor, 
 before this statute, was to be on oath. A witness in any cause may have 
 two oaths given him, one to speak the truth to such things as the court 
 shall ask concerning himself, or other things which are not evidence in the 
 cause; the other to give testimony in the cause in which he is produced 
 as a witness. If oath be made against oath in a cause, it is non liquet to 
 the court, that is, it is uncertain to the court whicli of their oaths is the 
 true one : and in which case the court will assume the truth of lliat oatli 
 
 * 9 Geo. IV. c. 31. f I Anne, II., 9. 
 
OF THE LAW OF ENGLAND. 317 
 
 which is to affirm the verdict, judgment, &c., as it tends to the expediting 
 of justice. A voluntary oath by the consent and agreement of the parties 
 themselves is lawful, as well as a compulsatory oath by a magistrate, and 
 in such case, if it is for the performance of a spiritual thing, the party failing 
 is suable in the ecclesiastical court, pro loesione Jldei ; if a temporal thing, 
 I he party failing may be punished in Banco Begis^ i. e. the king's bench. 
 
 By the common law, officers of justice are bound to take an oath foi 
 the due execution of justice. Though, if the promissory oaths of officers 
 are broken, they are not punisliable as perjuries, like the breaches of as- 
 sertory oaths; but their offences ought to be punished with a severe fine. 
 At the end of a legal oath, it was anciently added, " So help me God at his 
 holy dome.f" or judgment ; and our ancestors believed that a man could not 
 be so wicked as to call God to witness any thing which was not true, but 
 that if any one should be perjured, he must continually expect that God 
 would be the revenger: and probably from that opinion the purgatmis of 
 criminals by their own oaths, and for great offences, by the oaths of otliers, 
 were allowed. All official people under the government, peers, and mem- 
 bers of the house of commons, ecclesiastical persons, members of colleges, 
 schoolmasters, preachers, sergeants at law, counsellors, attorneys, solicitors, 
 advocates, proctors, &c. — are enjoined to take the oath of allegiance: and 
 persons neglecting or refusing, are declared incapable of executing their 
 offices and employments, disabled to sue in law and equity, to be guardian, 
 executor, &c., or to receive any legacy or deed of gift, to be in any office, 
 &c., and besides to forfeit five hundred pounds ; but this does not ex- 
 tend to constables, and other parish officers, nor to bailiffs of manors. 
 Ecclesiastical persons are required to take the oath of supremacy, a 
 neglect or refusal of which, renders them liable to the pains and penalties 
 of a prcemunire. As administered for upwards of six hundred years, the 
 oath of allegiance contained a promise, " to be true and faithful to the king 
 and his heirs, and truth and faith to bear of life, and limb, and terrene 
 honour, and not to know or hear of any ill or damage intended him, with- 
 out defending him therefrom." Upon which Sir Matthew Hale remarks, 
 that it was short and plain, not entangled with long and intricate clauses 
 or declarations, and yet is comprehensive of the whole duty from the sub- 
 ject to his sovereign. But at the Revolution, the terms of this oath were 
 changed, and the present form was introduced by the convention parlia- 
 ment, which is more general and indeterminate than the former; the sub- 
 ject only promising in general terms, " that he will be faithful, and bear 
 true allegiance to the king," without mentioning his " heirs," or his own 
 title de jure, or specifying in the least wherein that allegiance consists. 
 The oath of supremacy, is principally calculated as a renunciation of the 
 pope's pretended and usurped authority; and the oath oi abjuration, as in- 
 troduced in the reign of William of Orange, and afterwards regulated by 
 
318 RISE, PROGRESS, AND IMPROVEMENT 
 
 George III,, very amply supplies the loose and general texture of the 
 oath of allegiance : it recognises his majesty's title derived under the act 
 of settlement; it engages to support him to the utmost of the juror's power, 
 promises to disclose all traitorous conspiracies against him; and expressly 
 renounces any claim of the descendants of the illustrious house of Stewart, 
 in the direct line, in as clear and explicit terms as the English language 
 can furnish. This oath must be taken by all persons in oflSce, trust, or 
 employment; and may be tendered by two justices of the peace, to any 
 person whom they shall suspect of disaffection. The oath of allegiance 
 may be tendered to all persons above the age of twelve years, whether 
 natives, denizens, or aliens. Persons of eighteen years of age, refusing to 
 take the new oaths of allegiance, being tendered by the proper magistrate, 
 are subject to the penalties of a prcurnunire : and all sergeants, counsellors, 
 proctors, attorneys, and all officers of court practising without having 
 taken the oath of allegiance, are guilty of a prcemunirey whether the oaths 
 have been tendered to them or not. Oaths must be taken in the very words 
 prescribed in the acts, and cannot be qualified; but Quakers and Mora- 
 vians have, on account of their religious opinions, been excused from tak- 
 ing those oaths which have been justly imposed on all others, his majesty's 
 subjects, in all ages : and on making and subscribing the declaration of 
 fidelity, were not liable to the penalties enforced against others who re- 
 fused to take the oaths : but on neglecting or refusing to subscribe the de- 
 claration of fidelity, they were disabled from voting at the election of 
 members of parliament. When an oath is required, Quakers are permitted 
 to make a solemn affirmation or declaration, declaring in the presence of 
 God, the witness of the truth, &c., which is a piece of solemn mockery, for 
 an affirmation in the presence of God is an oath, let them qualify it in any 
 way they like. But they are incapable of giving evidence in a criminaJ 
 cause, serving on juries, or bearing any office in the government, unless 
 they are sworn like other protestants ; on the affirmation of a Quaker, the 
 court will not grant an attachment for non-performance of an award, nor 
 security for the peace, nor a rule for an information. But a rule to show 
 cause why an appointment of overseers should not be quashed, being served 
 by a Quaker, was made absolute on his affirmation, this not being considered 
 as a criminal prosecution, though on the crown side, and the rule in the 
 king's name.* An affirmation was allowed in all cases, (except criminal,) 
 where by any act of parliament an oath is required, though no provision 
 be therein made for admitting a Quaker to make his affirmation. A 
 Quaker who has served an apprenticeship of seven years, is entitled to be 
 admitted to the freedom of a corporation as well as any other person, and 
 his solemn affirmation is equivalent to taking the usual oaths.f That 
 
 * By Stat. 22 Geo. II. c. 46. f 7 & 8 WiU. III. c. 34. 
 
OF THE LAW OF ENGLAND. 319 
 
 clause of the statute wliich provides that no Quaker, by virtue of that 
 act, shall have any office or place of profit in the government, does not 
 extend to the freedom of a corporation.* 
 
 It being deemed expedient, therefore, by the legislature, that Quakers 
 and Moravians should be allowed to give their evidence, upon their solemn 
 affirmation, in all criminal, as well as civil cases ; and that in prosecutions 
 for forgery, the party interested should be rendered a competent witness ; 
 it was accordingly enacted — 
 
 That whenever the members of either of these two sects should be required to give evi- 
 dence, in any case whatsoever, criminal or civil, they shall, instead of taking the oath in the 
 usual form, be permitted to make their solemn affirmation or declaration, in the following 
 words: — " I, A. B., do solemnly, sincerely, and truly, declare and affirm," which affirma- 
 tion or declaration shall be of the same force and effect in all courts of justice or other places, 
 where, by law, an oath is required, as if they had taken an oath in the usual form ; and on 
 conviction of having wilfully, falsely, and corruptly affirmed or declared any matter or thing 
 which, if the same had been sworn in the usual form, would have amounted to wilful and 
 corrupt perjury, such offender shall be subject to the same pains, penalties, and forfeitures, 
 as other persons convicted of wilful and corrupt perjury are subject to. On any prosecu- 
 tion by indictment or information, either by common or statute law, against any person for 
 forging any deed, writing, instrument, or other matter whatsoever, or for uttering or dis- 
 posing of them, knowing them to be forged; or for being accessory, either before or after the 
 fact, or for aiding, abetting, or counselling the commission of any such offence ; if the same 
 be a misdemeanor, the party whose name has been forged shall be deemed a competent wit- 
 ness in support of any such prosecution, notwithstanding his actual or supposed interest in 
 the article forged. It being expedient to remove all doubts respecting the civil rights of 
 persons convicted of felonies, not capital, who have undergone the punishment to which they 
 were adjudged, it is now enacted that when the offender shall be convicted of any felony, not 
 punishable with death, and shall endure the punishment to which he is sentenced; such 
 punishment shall have the same effects and consequences as a pardon under the great seal, as 
 far as regards the felony of which he was convicted : but this privilege does not extend to the 
 prevention or mitigation of any punishment or conviction for any future and distinct felony. 
 This act further restores the competency of such offenders as were formerly rendered incapa- 
 ble of giving evidence, after conviction for certain misdemeanors; so that now, nothing but 
 perjury or subornation of perjury, can render any party an incompetent witness, after he has 
 undergone his punishment.f 
 
 The laws of England have been the established laws of Ireland, ever 
 since the reign of king John, who, in the twelfth year of his reign, went 
 over into Ireland, and carried along with him many able sages of the law, 
 and then, by his letters patent, in right of the dominion of conquest, is said 
 to have ordained and established that Ireland should be governed by the 
 laws of England; but at the time of its conquest by Henry II. the Irish 
 were governed by what they denominated the Brehon law, which was so 
 called from the title of their judges, who were styled Brehons :\ but for 
 more particular information we must refer to our notice of Ireland gene- 
 rally. As the operation of the acts for making such changes on the fun- 
 damental laws of England were excepted asi to Ireland, it was therefore 
 necessary to pass acts regulating the laws in that kingdom, and placing 
 
 * Tomlin's Law Dictionary. \ 9 Geo. IV. c. 32, \ Tomlin's Law Dictionary. 
 
S20 RISE, PROGRESS, AND IMPROVEMENT 
 
 tliem on a similar footing, or as nearly so as the natural disposition and 
 circumstances of the people would admit of. In consequence, an act 
 passed through the legislature and received the king's sanction on the 15th 
 July, 1828, for amending the laws in force in Ireland, relating to the 
 punishment of felony, and to bail in cases of felony, and to examinations, 
 informations, and other proceedings, previous to trial for criminal offences, 
 and to larceny and other offences of stealing, and to burglary, robbery, 
 and threats for the purpose of robbery or extortion, and to the embezzle- 
 ment of property, and to the obtaining of property by false pretences, and 
 to the receipt of stolen property, and to malicious injuries to property, and 
 the benefit of clergy, and for repealing all the acts relating to them, in 
 the Irish and British parliament, from the 9 Henry III. to the 7 and 8 
 George IV. c. 32,* and at same time, an act was passed for improving the 
 administration of criminal justice in Ireland, defining under what circum- 
 stances persons in that kingdom may be admitted to bail in cases of felony : 
 and making better provisions for taking examinations, informations, bail- 
 ments, recognizances, and returning the same to the proper tribunals, re- 
 taining, in some instances, the technical strictures of criminal proceedings, 
 so as to insure the punishment of the guilty without depriving the accused 
 of any just means of defence ; abolishing the benefit of clergy, and some 
 matters of form which impeded the due administration of justice ; and mak- 
 ing better provisions for the offenders in certain cases.f Also, an act for 
 consolidating and amending the laws in Ireland, relative to larceny and 
 other offences connected therewith, and placing them on the same footing 
 as in England. J At the same time, the law respecting malicious injuries 
 to property, whose operation was at first confined to England, was, with 
 some modifications, extended to Ireland. § 
 
 We are now arrived at that period of our legal history which was de- 
 nominated by Sir Robert Peel, " a breaking in upon the Constitution of 
 1688 :" but previous to reciting the "act for the relief of his majesty's Ro- 
 man catholic subjects," which, by the king's consent and authority, became 
 law on the I3th April, 1829, and which entirely changed the religious cha- 
 racter of the British government, that the wisdom of our ancestors, at the Re- 
 volution, had determined should be for ever protestant, — we will take a short 
 review of the laws affecting the Roman catholic subjects of Great Britain. 
 
 " As to papists," says judge Blackstone, *' what has been said of the 
 protestant dissenters, would hold equally strong for a toleration of them ; 
 provided their separation was founded only upon difference of opinion in 
 religion ; and their principles did not also extend to a subversion of the 
 civil government. If once they could be brought to renounce the supre- 
 macy of the pope, they might quietly enjoy their seven sacraments, their 
 
 * 9 Geo. IV. c. 53. t 9 Geo. 1 V. c. 51. | 9 Geo. IV. c. 55. § 9 Geo. IV. c 5G. 
 
OF THE LAW OF ENGLAND. 321 
 
 purgatory, and their auricular confession, their worship of relics and 
 images, nay, even their transubstantiation. But while they acknowledge 
 a foreign power, superior to the sovereignty of the kingdom, they cannot 
 complain if the laws of that kingdom will not treat them upon the footing 
 of good subjects."* 
 
 By various statutes, if any English priest of the church of Rome, born 
 in the dominions of the crown of England, came to England from beyond 
 the seas, or tarried in England three days without conforming to the 
 established church, he was guilty of high treason ; and they likewise in- 
 curred the same guilt, if they were reconciled to the see of Rome, or pro- 
 cured the reconciliation of others. They were totally disabled from giving 
 their children any education in their own religion. If they educated their 
 children at home, for maintaining the schoolmaster, if he did not repair to 
 church, or was not allowed by the bishop of the diocese, they were liable to 
 forfeit 10/. per month, and the schoolmaster to forfeit 40j. per day : if they 
 sent their children to any school of their own persuasion abroad, they were 
 liable to forfeit 1 00/. and the children so sent, were disabled from inheriting, 
 purchasing, or enjoying any lands, profits, goods, debts, duties, legacies, 
 or sums of money. Saying mass was punishable by a forfeiture of 200 
 marks, and hearing it, by 100 marks. 
 
 Till the 35th year of the reign of Elizabeth all non-conformists were con- 
 sidered as recusants, and were all equally subject to the penalties. In that 
 year the first penal statute was made against popish recusants, by that name, 
 and as distinguished from other recusants, and which gave rise to the distinc- 
 tion between protestant and popish recusants ; but the act of toleration re- 
 lieved the protestant dissenters from all the penalties of recusancy. f From 
 that statute also arose the distinction between papists or persons professing 
 the popish religion in general, popish recusants, and popish recusants 
 convict. Notwithstanding the frequent mention in the statutes of papists, 
 neither the statutes themselves nor the cases adjudged upon them, present 
 a clear notion of the acts or circumstances that, in the eye of the law, con- 
 stituted a papist. When a person of that description absented himself from 
 church, he came under the legal description of a popish recusant; when he 
 was convicted in a court of law, of absenting himself from church, he was 
 termed a popish recusant convict : to this must be added the constructive 
 recusancy, incurred by a refusal to take the oath of supremacy. By the 
 statutes against recusancy, popish recusants convict were punishable by the 
 censures of the church, and by a fine of 20/. for every month during which 
 they absented themselves from church : they were disabled from holding 
 offices or employments : from keeping arms in tlieir houses : from main- 
 taining actions or suits at law or in equity : from being executors or 
 
 * Comm. B. IV. c. 4. f 35 Eiiz. r. 2. 
 
 2 s 
 
322 RISE, PROGRESS, AND IMPROVEMENT 
 
 guardians : from presenting to advowsons : from practising iu law or 
 physic : from holding offices, civil or military : they were subject to the 
 penalties attending excommunications : were not permitted to travel five 
 miles from home, unless by license, on pain of forfeiting all their goods : and 
 might not appear at court, under a penalty of 100/. A married woman, 
 when convicted of recusancy, was liable to forfeit two-thirds of her dower 
 or jointure : she could not be an executrix or administratrix to her hus- 
 band, nor have any part of his goods ; and, during her marriage, she 
 might be kept in prison, unless her husband redeemed her, at the rate of 
 10/. per month, or the third part of his lands. Popish recusants convict, 
 were, within three months after conviction, either to submit, and renounce 
 their religious opinions, or if required by four justices, to abjure the realm : 
 and if they did not depart, or if they returned without license, they were 
 guilty of felony, and suffered death as felons. 
 
 It must be premised, that the Roman catholics made no objections to 
 the oath of allegiance, or the oath of abjuration. * By the statute of 
 Elizabeth, f the persons mentioned in it were compellable to take the oath 
 of supremacy contained in that act : that oath, with the oaths of allegiance 
 and obedience, were repealed after the Revolution, and new oaths of su- 
 premacy and allegiance were prescribed to be taken in their stead. J By 
 the oath of supremacy, persons are made to swear, that " no foreign prince, 
 person, prelate, state, or potentate, hath, or ought to have any jurisdiction, 
 power, supremacy, pre-eminence, or authority, ecclesiastical or spiritual, 
 within the realm." It might be tendered to any person, by any two jus- 
 tices of the peace; and persons refusing the oath so tendered, were adjudg- 
 ed to be popish recusants convict, to be proceeded against, and to forfeit 
 as such : this was called constructive recusancy. It was not the offence of 
 recusancy itself, whicli, as already observed, consisted in the party absent- 
 ing himself from church ; it was the offence of not taking the oaths of su- 
 premacy, and the other prescribed oaths, the refusal of which, was placed 
 on the same footing as a legal conviction on the statutes of recusancy, and 
 subjected the refusing party to the penalties of those statutes. This was 
 the most severe of all the laws against the papists. The punishment of 
 recusancy was penal in the extreme; and persons objecting to the oath in 
 question, might be subjected to all the penalties of recusancy, merely by 
 refusing the oath wlien tendered to them. It added to the penal nature of 
 these laws, that the oath in question might be tendered, at the mere will of 
 two justices of the peace, witL»out any previous information or complaint be- 
 fore a magistrate, or any other person. By refusing the oath of supremacy, 
 when tendered, they were restrained from practising the law as advocates, 
 barristers, solicitors, attorneys, notaries, or proctors; and from voting at 
 
 *1 Geo. I., c. 13.^-6 Geo. III., c. 53. tlEiiz.,c. 3. | 3 James I., c. 4. 
 
OF THE LAW OF ENGLAND. 323 
 
 elections. All members of either house of parliament were required * before 
 taking their seats, to make the declaration against popery, by which they de- 
 clared their disbelief of the doctrine of transubstantiation, and their belief 
 that the invocation of saints, and the sacrifice of tlie mass, are idolatrous. 
 After the Revolution, it was enacted, t that a person educated in the 
 popish religion, or professing the same, who did not in six months after 
 the age of sixteen take the oaths of allegiance and supremacy, and subscribe 
 the declaration against transubstantiation, &c., should, in respect of him- 
 self only, but not of his heirs or posterity, be disabled to inherit, or take 
 any lands by descent, devise, or limitation, in possession, reversion, or re- 
 mainder; and that, during his life, till he took the oaths and subscribed 
 the declaration against popery, his next of kin, who was a protestant, should 
 enjoy the lands, without accounting for the profits; and he should be in- 
 capable of purchasing; and that all estates, terms, interest, or profits out 
 of lands, made, done or suffered to his use, or in trust for him, should be 
 void. Papists were disabled from presenting to advowsons, and other ec- 
 clesiastical benefices, and to hospitals and other charitable establishments. 
 By annual acts of the legislature, papists of the age of eighteen years, and 
 not having taken the oaths of allegiance and supremacy, were subjected to 
 the burden of the double land tax. They were required to register their 
 names and estates in the manner there directed, | and under penalties, and 
 by several subsequent statutes, an obligation of inrolling their deeds and 
 wills, was imposed on them. ^ Such, at the accession of the house of 
 Brunswick, were the penal laws against Roman catholics. 
 
 The above brief summary of the laws against papists, is cited from the 
 publication of a Roman catholic, and in consequence, we have taken it in 
 preference to that by judge Blackstone, with which, however, it does not 
 exactly agree. These laws, however, w^re seldom exerted to their utmost 
 rigour. They are rather to be accounted for from their history, and the 
 urgency of the times which produced them, than to be approved of as a stand- 
 ing system of law. The restless machinations of the Jesuits during the 
 reign of Elizabeth, the turbulence and uneasiness of the papists under the 
 reformed religious establishment, and tlie boldness of their hopes and wishes 
 for the succession of the queen of Scots, obliged the government and par- 
 liament to counteract so dangerous a spirit by laws of great, and, at that 
 time, of necessary severity. The gunpowder treason in tlie succeeding 
 reign, struck a panic into James I. and the whole nation, which operated 
 in different ways: it occasioned the enacting of new laws against the 
 papists, but his natural clemency and goodness of heart, prevented him 
 from putting them in execution. The guilty intrigues of the papists, and 
 
 * 30 Char. IL, c. 2. t H & 12 Will. II!., c. 4. 
 
 I 1 Geo. I., c. 55. § Tomlin's Law Die, art. Papists. 
 
324 RISE, PROGRESS, AND IMPROVEMENT 
 
 their horrid massacre of upwards of an hundred and fifty-four thousand 
 protestants in cold blood, in Ireland, in the reign of Charles I., the prospect 
 of a popish successor to the crown, in that of Charles II., the assassination 
 plot in the reign of king William, and the avowed claim of the true heir, 
 in the right line of the house of Stewart, who Avas a Roman catholic in that 
 and the subsequent reign, will acount for the extension of these penalties, 
 at those several periods of our history. 
 
 The most effectual relief was afforded to the members * of the Latin 
 church in these kingdoms, and many of the restrictions and penalties above 
 enumerated, were removed from those who were willing to comply with the 
 requisitions of that statute, which are — 
 
 ITiat they must appear at some of the courts at Westminster, or at the quarter sessions, 
 held for the county, city, or place where they reside, and there make and subscribe a declara- 
 tion, that they profess the Roman catholic religion, and also an oath, the substance of which 
 is, that they duly take the oath of allegiance to his majesty, abjuration ef the pretender, re- 
 nunciation of the pope's civil power, and abhorrence of the doctrines of destroying and not 
 keeping faith with heretics, and deposing and murdering princes excommunicated by the 
 see of Rome -,1 in respect of them, the statute is repealed so far only as it disjibles them 
 from purchasing, or inheriting, or authorizes the apprehension or prosecution of the popish 
 clergy, or subjects either them or any teachers of }outh to perpetual imprisonment. The 
 officer of court was obliged to give a certi^cate to every Roman catholic who duly took the 
 oath, and transmit a list to the privy council, of all persons who had thus qualified them- 
 selves within the year, in his respective county. The statute then provided, that a Roman 
 catholic thus qualified, should not be prosecuted under any statute, for not repairing to a 
 parish church, nor prosecuted for being a papist, nor for attending or performing mass 
 or other ceremonies of the church of Rome ; provided that no place shall be allowed for an 
 assembly to celebrate such worship, until it was certified to the sessions; nor could any min- 
 ister officiate in it, until his name and description were recorded there : and they were also 
 prohibited from having their doors locked or barred during the time of meeting or divine 
 woi-ship. If any Romanist was elected constable, churchwarden, overseer, or into any paro- 
 chial office, he might have executed the same by deputy, to be approved, as if he were to act 
 for himself as principal. Every minister who qualified, was exempt from serving on juries, 
 or from being elected to any parochial office. Any person who disturbed their congrega- 
 tions was bound over to the next sessions, and on conviction forfeited twenty pounds. But 
 Roman catholic clergy were prohibited from officiating in any place of worship having a 
 steeple and a bell, or at any funeral in a churchyard, or from wearing the habits of his order, 
 except in places allowed by the statute, or in a private house, where there were not more 
 than five persons, besides tiie family. They were not exempted from the payment of tithes, 
 or other dues to the church, nor were the statutes concerning marriages aifected by this statute, 
 nor any law respecting the succession to the crown. No religious order was allowed to be 
 established, and every endowment of schools or colleges by a Romanist, still continued to be 
 considered superstitious and unlawful. They were not to be summoned to take the oath of 
 supremacy, nor the declaration against transubstantiation. Neither when qualified, were they 
 removable from London and Westminster: qualified peers were not punishable for coming 
 into the palace of the king or queen : no papists whatever were any longer obliged to register 
 their names and estates, or enroll their deeds and wills : and any one who had qualified 
 was permitted to act as a barrister, attorney, and notary. 
 
 The Irish parliament pzissed various statutes for the relief of the papists 
 in that kingdom, the last and most efTectual of which, J enacted — 
 
 *31 Geo. III.c. 32. f 11 & 12 Will. 111. | 33 Geo. III. c 21. 
 
OF THE LAW OF ENGLAND. 325 
 
 That no subject being a papist, or married to one, or educating his children as such, 
 taking the oaths required, should be liable to any penalty or disability, or to any law for 
 limiting, charging, or discovering their estates, or touching the acquiring of property, or 
 securities affecting it, save such as protestants are liable to : and all such parts of oaths re- 
 quired to be taken at voting, or to qualify for voting for members of parliament, as deny the 
 so being a papist, should not be required to be taken by any voter, neither were they required 
 before voting, to take the oaths of allegiance and abjuration. On taking the oaths, and an 
 additional oath required by this act, papists might hold, exercise, and enjoy all civil and 
 military offices, or places of trust and profit, under his majesty in Ireland, and any office or 
 place of trust, and be members of any lay corporation, without taking the oaths, &c., with 
 certain exceptions. 
 
 Afterwards an academy was established by act of parliament,* at Maynooth, 
 for their education, and has been ever since supported by annual grants of 
 money from parliament. By which it appears, that of late years, previous to 
 the year 1829, the members of the Roman catholic church enjoyed as full 
 and free a religious toleration, as any protestant communion whatever, with 
 which however they were not satisfied, but were desirous of being admitted to 
 seats in parliament, to legislate for protestant churches, which they consider 
 as heretics, and to possess those places of trust and emolument from which the 
 Britisli and Irish parliaments had expressly excluded them; the arguments 
 which they themselves and their advocates advanced, were, that the char- 
 acter of popery was now entirely changed, that they had abjured those 
 principles with which they had been accused, of not keeping faith with 
 heretics: of putting sovereign princes, excommunicated by the pope, to 
 death : of bearing any faith or allegiance to the pope inconsistent with their 
 duty to their protestant sovereign: of any desire to overturn the established 
 churches of England, Ireland, or of Scotland : but that their chief desire 
 was to live in the utmost charity and brotherly love with their protestant 
 brethren. That it would be an additional bond of union and strength to the 
 empire, and relieve the nation from the burden of so large a standing army 
 in time of peace, as the disturbed and discontented state of Ireland required, 
 which discontent being fostered and kept alive by a feeling of religious in- 
 feriority, the repeal of the few remaining disabilities would entirely remove 
 and obliterate. That this emancipation was not sought for in a religious 
 point of view, but in a political : that if the bill passed, the Romanists will 
 be more likely to be converted to protestantism than they are at present. 
 
 On the other side it was argued by the opponents of the measure, that 
 religion embraced the tvhole of the question ; that it is a violation of the 
 coronation oath, which requires the king to do his utmost to maintain the 
 legally established protestant religion : that if the admission into parliament 
 were a question merely of civil polity, it would still be unjust to give to the 
 subjects of a foreign power, who are only half subjects of the king, and 
 therefore not our fellofv subjects, equal political privileges with their pro- 
 
 * 35 Geo. III., c. 21. 
 
326 RISE, PROGRESS, AND IMPROVEMENT 
 
 testant fellow countrymen. That protestants and papists can never be fel- 
 low subjects in this our protestant country. Though they may be nominally 
 united in office, they must ever be divided in principle, and by many 
 irreconcilable interests : that it was a breaking in upon the constitution : 
 that it was once our boast and our happiness, and the ground of our 
 prosperity, that the law of England was, in its foundation and its practice, 
 eminently in accordance with the law of God. We have been accustomed 
 to say, " what nation is there so great, that hath God so nigh unto them, 
 as the Lord our God is in all things that we pray unto him for ?" But if 
 popery be admitted into the constitution of England and papists into her 
 highest councils, by such advancement of popery, and union with her idol- 
 atry, we recognize the worship, not of one God, but of many, not of one 
 Saviour, but of many : that we interfere not with the worship of the Ro- 
 manists, they are as secure as ourselves in life, limb, property, and religion, 
 and we only refuse the political power of injuring ourselves, and of assail- 
 ing our worship, to a band of theologians , who declare us to be pestilent 
 heretics, and who are bound to extirpate our faith : that his majesty's 
 right to the crown, resting solely on the act of settlement, which itself rests 
 on the revolution of 1688, and which was on essentially protestant prin- 
 ciples, destroys the very foundation of his title ; "and now," says Faber, 
 in bitter sarcasm, " all this process must clearly strengthen, in a most 
 marvellous degree, the acquired rights of the house of Brunswick, and 
 must for ever put an extinguisher upon the hopes of every descendant of 
 king Charles I.! Surrounded by his faithful papists, who will religiously 
 use their political power solely to maintain a protestant king against a 
 popish claimant, and solely to uphold a notorious protestant heresy against 
 the undoubted mother and mistress of all churches ; what can his gracious 
 majesty have to fear ? As the parliament of old used to tell king Charles 
 I. with abundant sincerity, they will indisputably make him the most glo- 
 rious monarch that ever sat on the throne of England ! " "A glance," said 
 Mr Croly, " at the British history, since the Reformation, must show that 
 every reign which attempted to bring back popery, or even to give it that 
 share of power which could in any degree prejudice protestantism, has been 
 marked by signal misfortune. It is a striking circumstance that almost 
 every reign of this popish tendency has been followed by one purely pro- 
 testant ; and as if to make the source of the national peril plain to all eyes, 
 those alternate reigns have not offered a stronger contrast in their prin- 
 ciples than in their public fortunes. Let the rank of England be what it 
 might under the protestant sovereign, it always sank under the popish : 
 let its loss of honour or of power be what it might under the popish sove- 
 reign, it always recovered and more than recovered under the protestant : 
 was distinguislied by sudden success, public renovation, and increased 
 stability to the freedom and fortunes of the empire : — viewing, therefore, 
 
OF THE LAW OF ENGLAND. 327 
 
 what has been the unbroken course of providence, with this highly favoured 
 country, for near three centuries past ; nothing but tlie most wilful scepti- 
 cism can doubt that the patronage of popery by the British people or the 
 British legislature, would be followed by some tremendous national inflic- 
 tion, compelling us either to descend from the heights of prosperity and 
 glory on which we stand, and retrace our steps to misery and shame, 
 or else abandoning us to that final ruin which would leave England like 
 Judea, a fearful example of the despised long-suffering of God, and the 
 madness of closing our eyes on his bounties, his visitations, and his pal- 
 pable WILL."* 
 
 " In order," says Blackstone, *' to secure the established church against 
 perils from non-conformists of all denominations, Jews, Turks, infidels, 
 papists, and sectaries, there were two bulwarks erected, called the Corpo- 
 ratioji and Test acts.^^\ These two bulwarks, as we have seen, were 
 removed, preparatory to the introduction of the following act, for the 
 relief of his majesty's Roman catholic subjects, which passed both houses 
 by large majorities, and finally was made law by the king's signature, on 
 the 13 th April, 1829. 
 
 I. Whereas by various acts of parliament, certain restraints and disabilities are imposed 
 on the Roman catholic subjects of his majesty, to which other subjects of his majesty are 
 not liable : and, whereas, it is expedient that such restraints and disabilities shall be from 
 henceforth discontinued: and, whereas, by various acts, certain oaths and certain declarations, 
 commonly called the declaration against transubstantiation, and the invocation of saints, and 
 the sacrifice of the mass, as practised in the church of Rome, are, or may be required to be 
 taken, made, and subscribed by the subjects of his majesty, as qualifications for sitting or 
 voting in parliament, and for the enjoyment of certain offices, franchises, and civil rights : 
 be it enacted, that all such parts of the said acts as require the said declarations, or either of 
 them, to be made or subscribed by any of his majesty's subjects, as a qualification for sitting 
 and voting in parliament, or for the exercise and enjoyment of any oflSce, franchise, or civil 
 right, be, and the same are (save as hereinafter provided and excepted) hereby repealed. 
 
 II. It shall be lawful for any person professing the Roman catholic religion, being a peer, 
 or who shall, after the commencement of this act, be returned as a member of the house of 
 commons, to sit and vote in either house of parliament respectively, being, in all other 
 respects, duly qualified to sit and vote therein, upon taking and subscribing the following 
 oath, instead of the oaths of allegiance, supremacy, and abjuration. 
 
 I, A. B., do sincerely promi.se and swear that 1 will be faithful, and bear true allegiance 
 
 to his majesty, king , and will defend him, to the utmost of my power, against 
 
 all conspiracies and attempts whatever, which shall be made against his person, crown, or 
 dignity ; and I will do my utmost endeavour to disclose and make known to his majesty, 
 his heirs and successors, all treasons and traitorous conspiracies which may be formed against 
 him or them ; and I do faithfully promise to maintain, support, and defend, to the utmost 
 of my power, the succession of the crown, which succession is, and stands limited to the 
 princess Sophia, electress of Hanover, and the heirs of her body, being protestants : hereby 
 utterly renouncing and abjuring any obedience or allegiance unto any other person claim- 
 ing or pretending a right to the crown of this realm ; and I do further declare, that it is not 
 an article of my faith, and that I do renounce, reject, and abjure the opinion that princes 
 excommunicated or deprived by the pope, or any authority of the see of Rome, may be 
 
 * Tracts and Speeches in different parts of the kingdom, during the discussion of the bill. 
 t Comm. vol. iv. p. 58. 
 
328 RISE, PROGRESS, AND IMPROVEMENT 
 
 deposed or murdered by their subjects, or by any person whatsoever; and I do declare, that 
 I do not believe that the pope of Rome, or any foreign prince, prelate, person, state, or po- 
 tentate hath, or ought to have any temporal or civil jurisdiction, power, superiority, or pre- 
 eminence, directly or indirectly, within this realm. I do swear that I will defend, to the utmost 
 of my power, the settlement of property within this realm, as established by the laws ; and 
 I do hereby disclaim, disavow, and solemnly abjure any intention to subvert the present 
 church establishment, as settled by law, within this realm ; and I do solemnly swear that I 
 will never exercise any privilege, to which I am, or may become entitled, to disturb or 
 weaken the protestant religion or protestant government in the united kingdom ;r'and I do, 
 solemnly, in the presence of God, profess, testify, and declare that I do make this declaration, 
 and every part thereof, in the plain or ordinary sense of the words of this oath, without any 
 evasion, equivocation, or mental reservation whatsoever. So help me God, 
 
 III. Provides that the name of the reigning sovereign, for the time being, shall be used 
 in the oath, .with proper words of reference thereto. 
 
 IV. No peer nor person professing the Roman catholic religion is capable of sitting and 
 voting in either house of parliament, unless he shall first take and subscribe the above oath, 
 before the same persons, at the same times and places, and in the same manner as the former 
 oaths were required to be taken and subscribed ; and any person professing the Roman ca- 
 tholic religion, who shall sit and vote in either house of parliament, without having first 
 taken and subscribed the above oath, shall be subject to the same pains, penalties, forfeitures, 
 and disabilities to which parties neglecting the former oaths were subject. 
 
 V. Persons professing the Roman catholic religion may rote at elections of members to 
 serve in parliament, and also of representative peers of Scotland and Ireland, and to be elected, 
 such representative peers being, in all other respects, duly qualifitid upon taking and sub- 
 scribing the foregoing oath. 
 
 VI. The aforesaid oath is to be administered to every Roman catholic, to enable them to 
 vote in the same manner, at the same time, and by the same officers as the former oaths 
 were ; and wherever a certificate was formerly necessary, the same is still required. 
 
 VII. Persons administering oaths at elections are themselves required to take an oath in 
 addition, for the due administration of the above oath, and for duly granting certificates. 
 
 VIII. Such part of the act of the parliament of Scotland,* for preventing the growth of 
 popery, is hereby repealed, being inexpedient ; and Roman catholics may elect, or be elected 
 for any county or district of burghs in Scotland. 
 
 IX. No priest or person in holy orders, in the church of Rome, is capable of being 
 elected.to serve in parliament, as a member of the house of commons. 
 
 X. Persons professing the religion of Rome may hold, exercise, and enjoy, all civil and 
 military offices, and places of trust or profit, and may exercise any other franchise, or civil 
 right, with certain exceptions. 
 
 XI. Nothing in this act shall exempt any Roman catholic from the necessity of taking 
 any oaths, or making any declarations, not mentioned in this act, which may be required to 
 be taken. i 
 
 XII. Nothing herein contained shall extend, or be construed to extend, to enable any 
 person or persons professing the Roman Catliolic religion, to hold or exercise the office of 
 guardians and justices of the united kingdom, or of regent of the miited kingdom, under 
 whatever name, style, or title, such office may be constituted ; nor to enable any person, 
 otherwise than he is now by law enabled, to hold or enjoy the office of lord high chancellor, 
 lord keeper, or lord commissioner, or keeper of the great seal of England, or of Ireland ; or 
 the office of lord lieutenant, or lord deputy, or other chief governor of Ireland ; or his ma- 
 jesty's commissioner to the general assembly of the church of Scotland. 
 
 XI II. This act does not alter any of the provisions of the act f for consolidating and 
 amending the laws regulating the levy and application of church rates and parish cesses, the 
 election of church wardens, and the maintenance of parish clerks in Ireland. 
 
 XIV. Roman catholics may be members of any lay body corporate, and hold any dvil 
 office, place of trust, or profit, therein, and do any corporate act, or vote in any corporate 
 election, or other proceeding, upon taking and subscribing the above oath. 
 
 * 1 Will, III, c. 3. +7 Geo. IV. c. 7*i. 
 
OF THE LAW OF ENGLAND. 329 
 
 XV. Nothing in this act shall authorize or empower any of his majesty's Roman catholic 
 subjects, being members of any lay body corporate, to vote, or in any manner, to join in the 
 presentation, or election, of any person, to any ecclesiastical benefice whatsoever, or to 
 any office or place belonging to, or connected with, the united church of England and Ireland, 
 or the church of Scotland, being in the gift, patronage, or disposal, of such lay corporate body. 
 
 XVL Nothing in this act shall be construed to enable any persons, otherwise than as they 
 are now by law enabled to hold, enjoy or exercise any office, place, or dignity, of, in, or be- 
 longing to, the united church of England and Ireland, or the church of Scotland, or any 
 place or office whatever, in, or belonging to, any of the ecclesiastical courts of judicature of 
 England and Ireland respectively, or any court of appeal from, or review of, the sentences 
 of such courts, or of, in, or belonging to, the commissary court of Edinburgh, or of, in, or 
 belonging to, any cathedral, or collegiate, or ecclesiastical establishment, or foundation : or 
 any office or place whatever, of, in, or belonging to, any of the universities of this realm, or 
 any office or place whatever, and by whatever name the same shall be called, of, in, or be- 
 longing to, any of the colleges or halls of the said universities, or the colleges of Eton, West- 
 minster, or Winchester, or any college or school within this realm : or to repeal, abrogate, 
 or in any manner to interfere with any local statute, ordinance, or rule, which is, or shall 
 be, established by competent authority, within any university, college, hall, or school, by 
 which Roman catholics shall be prevented from being admitted thereto, or from residing or 
 taking degrees therein : provided that nothing herein contained shall enable any person, 
 otherwise than as he is now by law enabled, to exercise any right of presentation, to any 
 ecclesiastical benefice whatsoever, or to repeal, vary, or alter, in any manner, the laws now 
 in force, in respect to the right of presentation to any ecclesiastical benefice. 
 
 XVII. Whenever any right of presentation to any ecclesiastical benefice shall belong to 
 any office in the gift or appointment of his majesty, his heirs, or successors, and such office 
 shall be held by a Roman catholic, the right of presentation shall devolve upon, and be 
 exercised by, the archbishop of Canterbury, for the time being. 
 
 XVIII. No Roman catholic shall, either directly or indirectly, advise his majesty, 
 regent, &c , or the lord lieutenant, &c., of Ireland, touching or concerning the appointment 
 or disposal of any office or preferment, in the united churches of England and Ireland, or 
 the cliurch of Scotland, and offenders, when duly convicted, shall be guilty of a high mis- 
 demeanor, and disabled for ever from holding any office, civil or military, under the crown. 
 
 XIX. After the commencement of this act, any Roman catholic who shall be placed, 
 elected, or chosen, to the office of mayor, provost, alderman, recorder, bailiff; town-clerk, 
 magistrate, counsellor, or common-councilman, &c., of any city, corporation, borough, burgh, 
 or district, within the united kingdom of Great Britain and Ireland, shall, within one calen- 
 dar month, next before, or upon his admission, subscribe the oath hereinbefore appointed 
 and set forth, in the presence of the proper officer. 
 
 XX. Every Roman catholic who shall be appointed to any office or trust under Iiis 
 majesty, &c., shall, within three calendar months, take the before mentioned oath, before he 
 presumes to exercise or enjoy it. 
 
 XXI. Roman catholics appointed to offices, and neglecting to take the oath, shall forfeit, 
 to the king, the sum of two hundred pounds, and lose the place beside. 
 
 XXII. Military and naval persons are to take the oaths at the same time and in the same 
 manner as formerly required. 
 
 XXIII. No oaths are required of Roman catholics for enabling them to hold real or per- 
 sonal property, other than is taken by other subjects : and that the oath herein appointed and 
 set forth, being taking and subscribed in any of the courts, shall be of the same force and 
 eft'ect to all intents and purposes as, and shall stand in the place of, all oaths and declarations 
 required or prescribed by any law now in force for the relief of his majesty's Roman catholic 
 subjects from any disabilities, incapacities, or penalties : and the proper officer of any of his 
 majesty's courts, in which any person professing the Roman catholic religion shall demand 
 to take and subscribe the oath herein appointed and set fortli, is hereby authorized and 
 required to administer the said oath to such person: and such officer shall make, sign, and 
 deliver, a certificate of such oath having been duly taken and subscribed as often as the same 
 shall be demanded of him, upon payment of one shilling : and such certificate sliall be 
 
 2 T 
 
330 RISE, PROGRESS, AND IMPROVEMENT 
 
 sufficient evidence of the person therein named, having duly tak^n and subscribed such 
 oath. 
 
 XXIV. And, whereas, tlie protestant episcopal church of England and Ireland, and the 
 doctrine, discipline, and government thereof, and likewise the protestant presbyterian churclx 
 of Scotland, and the doctrine, discipline, and government thereof, are, by the respective acts 
 of Union of England and Scotland, and of Great Britain and Ireland, established perma- 
 nently and inviolably : and, whereas, the right and title of archbishops to their respective 
 provinces, of bishops to their sees, and of deans to their deaneries, as well in England as in 
 Ireland, have been settled and established by law: if any person, therefore, after the com- 
 mencement of this act, other than the person thereunto authorized by law, shall assume or 
 use the name, style, or title of archbishop of any province, bishop of any bishopric, or 
 dean of any deanery, in England or Ireland, he shall, for every such offence, forfeit and 
 pay the sum of one hundred pounds. 
 
 XXV. If any judicial or civil officers, or mayors, provosts, &c., of cities or boroughs shall 
 be present at, or attend, any place or public meeting for religious worship, either in England, 
 Ireland, or Scotland, other than the respective established churches of these kingdoms, in the 
 robe, gown, or other peculiar habit of his office, or its ensign, or insignia, or any part thereof, 
 shall forfeit and pay, for every offence, one hundred pounds. 
 
 XXVI. If any Roman catholic ecclesiastic, or any member of any of their orders, com- 
 munities, or societies, shall exercise any of the rites and ceremonies of the Roman catholic 
 religion, or wear the habits of his order, save within their own usual pliices of worship, or in 
 private houses, he shall forfeit the sum of fifty pounds. 
 
 XXVII. Nothing in this act shall, in any manner, repeal or alter any of the provisions 
 of the act * relating to burials in suppressed monasteries, %bc. 
 
 XXVIII. And whereas, Jesuits and members of other religious orders, communities, or 
 societies of the church of Rome, bound by monastic or religious vows, are resident within 
 the united kingdom: and it is expedient to make provision for the gradual suppression and 
 final prohibition of tlie same therein : every Jesuit, therefore, or member of other religious 
 orders, who, at the commencement of this act, were within the kingdom, were required, 
 within six months, to deliver a notice or statement to the clerk of the peace, Sic., to be kept 
 among the records of the county, a copy of which to be transmitted to the lord lieutenant or 
 chief secretary of state ; and offenders shall forfeit fifty poimds for every month of his residence 
 without having delivered such notice. 
 
 XXIX. All Jesuits or members of other orders who shall come into this realm, after the 
 passing of this act, shall be guilty of a misdemeanor, and be banished the kingdom for life. 
 
 XXX. Jesuits who are natural born subjects, residing out of the realm, may return and 
 be registered. 
 
 XXXI. Any one of his majesty's principal secretaries of state, being a protestant, may 
 grant licenses to Jesuits, &c., to come into the kingdom, and remain for such time as the 
 secretary shall think proper: and if he see cause, he may revoke the same before expiry of 
 the time. 
 
 XXXII. Accounts of all such licenses shall be laid before parliament, as shall have been 
 granted within twelve months preceding. 
 
 XXXII I. To admit persons or to administer vows to them, binding them to monastic 
 ordei-s, the party shall be guilty of a misdemeanor in England, and in Scotland be punished 
 by fine and imprisonment. 
 
 XXXIV. And any person so admitted a Jesuit or member of a religious order, shall be 
 guilty of a misdemeanor, and banished the kingdom for life. 
 
 XXXV. XXXVI. And any person sentenced to be banished, and not leaving the 
 kingdom, shall be sent out by force ; and if at large after three months, may be trans- 
 ported for life, 
 
 XXXVII. Nothing in this act shall affect female societies, bound by religious vows. 
 
 XXXVIII. XXXIX. XL. All penalties imposed by this act, by the attorney general in 
 EnglaTjd and Ireland and the advocate general in the court of exchequer in Scotland. This 
 
 « 5 Geo. IV., c. 25. 
 
OF THE LAW OF ENGLAND, 331 
 
 Rct * might have been repealed, altered, or amended, during the session of that parliament* 
 and it commenced ten days after enactment. 
 
 A bill was carried at same time, disfranchising the forty shilling free- 
 holders of Irelandjf but the subsequent bill for Reform of parliament has 
 rendered it a dead letter. The act for consolidating and amending the 
 laws of England, relative to offences against the person, commonly called 
 lord Lansdowne's act, was extended to Ireland on the 4th June, 18294 
 And on the same date, an act for the more effectual punishment of at- 
 tempts to murder, in certain cases, in Scotland, passed both houses : the 
 provisions of which are as follow : — 
 
 That the act § which made provision for the further prevention of malicious shooting and 
 attempting to discharge loaded firearms, stabbing, cutting, wounding, poisoning, and dis- 
 abling his majesty's subjects, did not extend to the punishment of cases of attempts to murder 
 by means of suffocation, strangulation, and drowning, and it being expedient that a suitable 
 punishment should attach to such crimes; that act is hereby repealed, and its provisions re- 
 enacted and united with this act. I L Therefore, if any person within Scotland, wilfully, ma- 
 liciously, and unlawfully, shoot at any of his majesty's subjects, or present, point, or level, any 
 kind of loaded firearms, at any one, and attempt,^ by drawing a trigger, or in any other 
 manner, to discharge the same at or against their persons : or shall stab or cut any person, 
 with intent, in so doing or by means thereof, to murder or maim, disfigure or disable any 
 person, or with intent to do some other grievous bodily harm to any person : or shall, wil- 
 fully, maliciously, and unlawfully administer, or cause to be administered, to any person, any 
 deadly poison or other noxious or destructive substance or thing, with intent, by means 
 thereof, to murder or disable any person, or to do them some grievous bodily harm : or shall, 
 wilfully, &c., attempt to suffocate, or strangle, or drown any person, or with the intent to 
 murder or disable them, or to do them some grievous bodily harm : such actor, or art and 
 part of one or more of these offences, shall be held guilty of a capital crime and receive sentence 
 of death. IIL And if any person in Scotland shall maliciously, &c., throw at, or otherwise 
 apply to, any person, any sulphuric acid, or other corrosive substance, calculated by external 
 application to bum or injure the human frame, with intent, by so doing, to murder, maim, 
 disfigure, or disable any person, or to do them some other grievous bodily harm, and when 
 any person, accordingly, shall be maimed, disfigured, disabled, or receive other grievous 
 bodily harm, the actor, or art and part, shall be held guilty of a capital crime, and receive sen- 
 tence of death accordingly. || 
 
 We have now brought the legal transactions of the reign of the fourth 
 George to a termination. And we have seen that in his reign the most 
 extensive and fundamental changes have been made in the criminal law, 
 whereby it has been greatly improved and extended, both for the benefit of 
 the subject and the better administration of justice. King George IV. died 
 at Windsor, on tlie 26th of June, 1830, in the eleventh year of his reign, 
 and the sixty-fourth of his age. He was succeeded by his third brother, 
 his royal higlmess the duke of Clarence, under the style and title of William 
 IV. Soon after his accession to the throne, he granted the reform of 
 parliament, and other bills for the reform of the boroughs of England and 
 
 * 10 Geo. IV. c. 7. f 10 Geo. IV. c. 8. \ 10 Geo. IV. c 34. § 6 Goo. IV. c. 120. 
 
 II 10 Goo. (.-. 38. 
 
332 RISE, PROGRESS, AND IMPROVEMENT 
 
 Ireland, and the burghs of Scotland: all which we sincerely hope may 
 tend to the happiness and prosperity of the people of Great Britain and 
 Ireland. 
 
 The dreadful scourge of the Asiatic cholera having desolated the three 
 kingdoms in the year 1832, and carried dismay and death into almost every 
 family, acts * were passed authorizing energetic measures of precaution to 
 prevent its spreading, and to alleviate the distress of those who were at- 
 tacked by it. In May, 1832, an act was passed for consolidating and 
 amending the laws against offences relating to the coin, wherein the coun- 
 terfeiting of gold or silver coin, or the colouring pieces of metal, with the in- 
 tent to make them pass for coin, subjects the party to transportation for life : 
 impairing, diminishing, or lightening gold or silver coin, and passing them 
 for full value, is liable to fourteen years' transportation : buying, selling, 
 or importing counterfeit coin, is transportation for life : making, mend- 
 ing, or having in possession any coining tools, is transportation for life.f 
 
 There were no other acts passed of such a nature, in this reign, as to 
 require notice here, and we therefore Iiasten to produce the following im- 
 portant act which passed both houses after a long and protracted debate, 
 and received the royal assent on the 7th June, 1832 
 
 AN ACT TO AMEND THE REPRESENTATION OF THE PEOPLE OF 
 ENGLAND AND WALES. 
 
 'Whereas it is expedient to take effectual measures for correcting divers abuses tliat have 
 long prevailed in the choice of members to serve in the commons house of parliament, to de- 
 prive many inconsiderable places of the right of returning members, to grant such privileges 
 to large, populous, and wealthy towns, to increase the number of the knights of the shire, to 
 extend the elective franchise to many of his majesty's subjects, who have not heretofore en- 
 joyed the same, and to diminish the expense of elections ;' be it therefore enacted by the 
 king's most excellent majesty, by and with the advice and consent of the lords spiritual and 
 temporal, and commons in this present parliament assembled, and by the authority of the 
 same ; that each of the boroughs enumerated in the schedule marked (A), to this act an- 
 nexed, that is to say. Old Sarum, 'Newtown, St MichaeVs or Midshall, Gatton, Brambevy 
 Bossiney, Dunwich, Ludgershall, St Mawes, Heeralston, West Looe, St Germains, Newport, 
 Blechingly, Aldborough, Camelford, Hindon, East Looe, Corfe Castle, Great Bedwin, Yar- 
 mouth, Queenborough, Castle Rising, East Grinstead, Higham Ferrers, Wendover, Weobly, 
 Winchelsea, Tregony, Haslemere, Saltash, Orford, Callington, Newton, Ilchester, Borough- 
 bridge, Stockbridge, New Romney, Hedon, Plymplon, Seaford, Heytesbury, Steyning, Whil- 
 church, Wootlon Basset, Downton, Fowey, Milbourne Port, Aldburgh, Minehead Bishops Castle, 
 Okehampton, Appleby, Loslwithiel, Brackley, and Amer.sham, shall from, and after the end of 
 this present parliament, cease to return any member or members to serve in parliament. 
 
 II. And be it enacted, that each of the boroughs enumerated in the schedule marked ( B), 
 that is to sa\ , Petersfield, Ashburton, Eye, Westbury, Wareham, Midhurst, Woodstock, Wil- 
 ton, Malmsbury, Liskeard, Reigate, Hylhe, Droittvich, Lyme Regis, Launceston, Shaftesbury. 
 Thirsk, Chiistchurch, Horsham, Great Grimsby, Calne, Arundel, St Ives, Rye, Clitheroe, 
 Morpeth, Helston, Northallerton, Wallingford, and Dartmouth, shall fiom and after the entl 
 of this present parliament, return one member and no more, to serve in parliament. 
 
 ill. Each of the places named in schedule (C), that is to say, Manchester, Birmingham* 
 
 * 2 Will. 1V„ c. 10 & 11. +2 Will. IV,, c. 34. 
 
OF THE LAW OF ENGLAND. 333 
 
 Leeds, Greenwich, Sheffield, Sunderland, Davenport, Wolverhampton, Tower Hamlets, Fins- 
 bury, Mary-le-Bone, Lambeth, Bolton, Bradford, Blackburn, Brighton, Halifax, Maccles- 
 field, Oldham, Stockport, Stoke-upon-Trent, and Stroud, shall for the purposes of this act be 
 a borough, and shall as such, include the place, or places, respectively, which shall be com- 
 prehended within tlie boundaries of such borough, as shall be settled and described by an 
 act to be passed for that purpose in this present parliament, which act shall be deemed and 
 taken to be part of this act, as full}', and effectually, as if the same were incorporated here- 
 with, and that each of the said boroughs shall, from and after the end of this present par- 
 liament, return two members to serve in parliament. 
 
 IV. Each of the places named in schedule D, that is to say, Ashton-under-Line, Bury, 
 Chatham, Chellenham, Dudley, Frame, Gateshead, Huddersfield, Kidderminster, Kendal, 
 Rochdale, Salford, South Shields, Tynemouth, Wakefield, Walsall, Wanington, Whitby, 
 Whitehaven, and Merthyr-Tidvill, shall be a borough, and shall include the place, or places, 
 respectively, which shall be comprehended within the boundaries of such borough : and that 
 each of the said boroughs, shall return one member to serve in parliament. 
 
 V. The borough of new Shoreham shall include the whole of the Rape of Bramber, in the 
 county of Sussex, save and except such parts of the Rape as shall be included in the borough 
 of Horsham ; and that the borough of Cricklade shall include the hundreds and divisions of 
 Highworth, Cricklade, Staple, Kingsbridge, and Malmsbury, in the county of Wilts, save 
 and except, such parts of the said hundred of Malmsbury, as shall be included in the bor- 
 ough of Malmsbury : and that the borough of Aylesbury shall include the three hundreds of 
 As'lesburj', in the county of Buckingham : and that the borough of East Retford shall in- 
 clude the hundred of Basset Law, in the county of Nottingham, and all places locally situate 
 within the outside boundary, or limit, of the hundred of Basset Law, or surrounded by such 
 boundary, and by any part of the counties of Lincoln or York. 
 
 VI. The borough of Weymouth, and Melcombe- Regis, shall return two members, and 
 no more, to serve in parliament, and the borough of Penryn shall include the town of Fal- 
 mouth, and the borough of Sandwich shall include the parishes of Deal and Walmer. 
 
 VII. Every city and borough in England which now returns a member, or members to 
 serve in parliament, and every place sharing in the election therewith, (except the several 
 boroughs enumerated in schedule A, and except the several boroughs of New Shoreham, 
 Cricklade, Aylesbury, and East Retford) shall, and each of the said boroughs of Penryn and 
 Sandwich also shall, include the place or places respectively, which shall be comprehended 
 within the boundaries of any such city, borough, or place, as such boundaries shall be settled 
 and described. 
 
 VIII. Each of the places named in the fii-st column of schedule E, shall have a share in 
 the election of a member to serve in all future parliaments for the shire, iovm, or borough, 
 which is mentioned in conjunction therewith, and named in the second column of the said 
 schedule E. 
 
 IX. Each of the places named in the first column of the said schedule E, and each of the 
 shire towns, or boroughs named in the second column, and the borough of Brecon shall in- 
 clude the place or places respectively, which shall be comprehended within the boundaries, 
 of each of the said places, shire towns, or boroughs respectively. 
 
 X. Each of the towns of Swansea, Loughor, Neath, Aberavon, and Ken-fig, shall include 
 the place or places respectively, which shall be comprehended virithin the boundaries of each 
 of the said towns: and that the said five towns, so included as aforesaid, shall be one 
 borough, and shall, as such borough, return one member to serve in parliament; and that 
 the Portreeve of Swansea shall be the returning officer for the said borough ; and that no 
 person by reason of any right accruing in any of the said five towns, shall have any vote in 
 the election of a member to serve in any future parliament for the borough of Cardiff. 
 
 XI. The persons respectively described in schedules C and D, shall be the retunn'ng offi- 
 cers at all elections of a member or members to serve in parliament for the boroughs in con- 
 junction with which such pei-sons are respectively mentioned in the said schedules C and D : 
 and, that, for those boroughs, in the said schedules, for which no persons are mentioned in 
 such schedules, as returning officers, the sheriff for the lime being of the county, in which 
 such boroughs are respectively situate, siiuU witliin two months after the passing of this act. 
 
334 RISE, PROGRESS, AND IMPROVEMENT 
 
 and in every succeeding respective year in the month of March, by writing under his hand 
 to be delivered to the clerk of the peace, of the county, within one week, and to be b} such 
 clerk of the peace, filed and preserved with the records of his office, nominate and appoirt 
 for each of such boroughs a fit person, being resident therein, to be, and such person so 
 nominated and appointed, shall accordingly be, the returning officer for each of such bor- 
 oughs respectively, until the nomination be made in the succeeding March; and, in the 
 event of the death of any such person, or of his becoming incapable to act by reason of sickness, 
 or other sufficient impediment, the sheriff for the time being shall, on notice thereof, forth- 
 with nominate and appoint in his stead a fit person, being so resident as aforesaid, to be, and 
 such person so nominated and appointed shall accordingly be, the returning officer for such 
 borough, for the remainder of the then current year : and no person, having been so nominated 
 und appointed as returning officer for any borough, shall, after the expiration of his office, be 
 compellable at any time thereafter, to serve again in the said office for the said borough; 
 provided always, that no person being in holy orders, nor any churchwarden, or overseer of 
 the poor, within any such borough, shall be nominated or appointed as such returning officer 
 for the same : and that no person, nominated or appointed as returning officer for any bo- 
 rough, now sending or hereafter to send members to parliament, shall be appointed a churcli- 
 warden or overseer of the poor therein, during the time for which he shall be such returning 
 officer: provided, also, that no person, qualified to be elected to serve as a member in parlia- 
 ment, shall be compellable to serve as a returning officer for any borough, for which be shall 
 have been nominated and appointed by the sheriff as aforesaid, if within one week after he 
 shall have received notice of his nomination and appointment as returning officer, he shall 
 make oath of such qualification before any justice of the peace, and shall forthwith notify the 
 same to the sheriff: provided, also, that in case his majesty shall be pleased to grant his 
 royal charier of incorporation to any of the boroughs, named in the said schedules, C and D, 
 which are not now incorporated, and shall, by such charter, give power to elect a mayor or 
 other chief municipal officer, for any such borough, then, and in every such case, such ma} or, 
 &c., for the time being, shall be the only returning officer for such boiough, and the pro- 
 visions herein before contained, with regard to the nomination and appointment of a return- 
 ing officer for such borough, shall thenceforth cease and determine. 
 
 XII. In all future parliaments, there shall be six knights of the shire instead of four, to 
 serve for the county of York, that is to say, two knights for each of the three ridings of the s£ud 
 county, to be elected in the same manner, and by the same classes and description of voters, 
 and in respect of the same several rights of voting, as if each of the three ridings were a 
 separate county ; and that the courts for the election of knights of the shire, for the North 
 Riding of the said county, shall be holden at the city of York, for the West Riding of the 
 said county, shall be holden at Wakefield, and for the East Riding, at Beverly. 
 
 XIII. In all future parliaments, tliere shall be four knights of the shire instead of two, to 
 serve for the county of Lincoln ; two for the parts of Lindesey, in the said county, and two 
 for the parts of Kesteven and Holland, in the same county : and that such four km'ghts shall 
 be chosen in the same manner, and by the same classes and descriptions of voters, and in 
 respect of the same several rights of voting, as if the said parts of Lindesey, and of Kesteven, 
 and Holland, were separate counties : and that the court for the election of the knights 
 of the shire, for the parts of Lindesey, shall be holden in the city of Lincoln, and for the 
 parts of Kesteven and Holland, at Sleaford. 
 
 XIV. Each of tlie counties enumerated in schedule F, shall be divided into two divisions, 
 which divisions shall be settled and described by an act passed for that purpose, in this present 
 parliament, which act, when passed, shall be deemed and taken to be part of this act; and 
 that, in all future parliaments, there shall be four knights of theshire instead of two, to serve 
 for each of the said counties, that is to say, two knights of the shire for each division of the 
 said counties : and that such knights shall be chosen in the same manner, and by the came 
 classes and descriptions of voters, and in respect of the same several rights of voting, as if each 
 of the said divisions were a separate county : and that the courts for the elections of the 
 knights of the shires, for each division of the said counties, shall be holden at the place to be 
 named for that purpose, in the act so to be passed as aforesaid, for settling and describing the 
 divisions of the said countie?. 
 
OF THE LAW OF ENGLAND. 335 
 
 XV. In all future parliaments there shall be three knights of the shire instead of two, to 
 serve for each of tlie counties enumerated in schedule F 2, and two knights of the shire in- 
 stead of one, to serve for each of the counties of Carmarthen, Denbigh, and Glamorgan. 
 
 XVI. The isle of Wight in the county of Southampton shall be a county of itself, separate 
 and apart from the county of Southampton, and shall return one knight of the shire, to serve 
 in every future parliament : and that such knight shall be chosen by the same classes and 
 descriptions of voters, and in respect of the same several rights of voting as the same classts 
 and descriptions of voters, and in respect of the same several rights of voting, as any knight 
 of the shire that shall be chosen in any county of England : and that all elections for the said 
 county of the isle of Wight, shall be holden at the town of Newport, in the isle of Wight, and 
 the sheriff of the isle of Wight or his deputy shall be the returning officer at such elections. 
 
 XVII. For the purpose of electing a knight or knights of the shire, to serve in any future 
 pailiament, the east riding of the county of York, the north riding of the county of York, 
 the pans of Lindesey, in the county of Lincoln, and the several counties at large, enumerated 
 in the second column of schedule G, shall respectively include the several cities and towns 
 and counties of the same, which are respectively mentioned in conjunction with such ridings, 
 parts, and counties at large, and named in the first column of the said schedule G. 
 
 XVIII. No person shall be entitled to vote in the election of a km'ght or knights of the 
 shire, to serve in any future parliament, or in the election of a member or members, to serve 
 in any future parliament for any city or town, being a county of itself, in respect of any 
 freehold lands or tenements whereof such person may be seised for his own life or the life of 
 another, or for any lives whatsoever, except such persons shall be in the actual and bona fide 
 occupation of such lands or tenements, or except the same shall have come to such person by 
 marriage, marriage settlement, devise, or promotion to any benefice or to any office, or 
 except the same shall be of the clear yearly value of not less than ten pounds above all rents 
 and charges payable out of, or in respect of the same : any statute or usage to the contrary 
 notwithstanding : provided always that nothing in this act contained shall prevent any person 
 seised for his own life, or for the life of another, or for any lives whatsoever, of any freehold 
 land or tenements in respect of which he now has, or but for the passing of this act he might 
 acquire, the right of voting in such respective elections, from retaining or acquiring, so long 
 as he shall be so seised of the same lands or tenements, such right of voting in respect 
 thereof, if duly registered according to the provisions hereinafter contained. 
 
 XIX. Every male person of full age, and not subject to any legal incapacitj, who shall be 
 seised at law, or in equity of any lands or tenements of copyhold, or any other tenure except 
 freehold, for his own life, or for the life of another, or for any lives whatsoever, or for any 
 larger estate, of the clear yearly value of not less than ten pounds, over and above all rents 
 and charges payable out of or in respect of the same, shall be entitled to vote in the election 
 of a knight or knights of the shire, to serve in any future parliament, for the county or for 
 the riding, parts or divisions of the county in which such lands or tenements shall be respec- 
 tively situate. 
 
 XX. Every male person of full age, and not subject to any legal incapacity, who shall be 
 entitled, either as lessee or assignee to any lands or tenements, whether of freehold or an} other 
 tenure whatever, for the unexpired residue, whatever it may be, of any term originally 
 created, for a period of not less than sixty years (whether determinable for a life or lives, 
 or not) of the clear )'early value, of not less than ten pounds, over and above all rents and 
 charges, payable out of, or in respect of the same, or for the unexpired residue, whatever it 
 may be, of any term originally created, for a period of not less than twenty years (whether 
 determinable on a life or lives, or not) of the clear yearly value of not less than fifty pounds, 
 over and above all rents and cliarges, payable out of, or in respect of the same, or who shall 
 occupy, as tenant, any lands or tenements for which he shall be, bona fide, liable to 
 a yearly rent of not less than fifty pounds, shall be entitled to vote in the election of a knight 
 or knights of the shire, to vote in any future parliament for the county, or for the riding, 
 parts, or division, in which such lands or tenements shall be respectively situate : provided, 
 always, that no person, being only a sub-lessee, or the assignee of any underlease, shall have a 
 right to vote in such election, in respect of any such term of sixty years or twenty years, as 
 aforesaid, unless he shall be in the actual occupation of the premises. 
 
336 RISE, PROGRESS, AND IMPROVEMENT 
 
 XXI. No public or parliamentary tax, nor any church rate, county rate, or parochial rate, 
 shall be deemed to be any charge payable out of, or in respect of, any lands or tenements 
 within the meaning jef this act. 
 
 XXII. In order to entitle any person to vote in the election of a knight of the shire or other 
 member, to serve in any future parliament, in respect of any messuages, lands, or tenements, 
 whether freehold or otherwise, it shall not be necessary that the same shall be assessed to the 
 land tax : any statute to the contrary notwithstanding. 
 
 XXIII. No person shall be allowed to have any vote in the election of a knight or knights 
 of the shire, for, or by reason of any trust, estate, or mortgage, unless such trustee or mort- 
 gagee be in actual possession or receipt of the rents or profits of the same estate, but that the 
 mortgagor or cestuique trust in possession, shall and may vote for the same estate notwith- 
 standing such mortgage or trust. 
 
 XXIV. Notwithstanding any thing hereinbefore contained, no person shall be entitled 
 to vote in the election of knights of the shire, to serve in any future parliament, in respect of 
 his estate or interest as a freeholder in any house, warehouse, counting-house, shop, or other 
 building occupied by himself, or in any land occupied by himself, together with any house, 
 warehouse, counting-house, shop, or other building, such house, warehouse, counting-house, 
 shop, or other building", being separately or jointly with the land so occupied therewith, of 
 such value as would, according to the provisions hereinafter contained, confer on him the 
 right of voting for any city or borough, whether he shall or shall not Iiave actually acquired 
 the right to vote for such city or borough, in respect thereof. 
 
 XXV. Notwithstanding any thing hereinbefore contained, no person shall be entitled to 
 vote in the election of a knight or knights of the shire, to serve in any future parliament, in 
 respect of his estate or interest, as a copyholder or customary tenant, or tenant in ancient 
 demesne, holding by copy of court roll, or as such lessee or assignee, or as such tenant and 
 occupier as aforesaid in any house, warehouse, counting-house, shop, or other building or in 
 any land occupied together witli a house, &c., either separately or jointly with the land so 
 occupied therewith, of such value as would, according to the provisions hereinafter contained, 
 confer on him or any other person the right of voting for any city or borough, whether he 
 or any other person shall or shall not have actually acquired the right to vote for such city or 
 borough in respect thereof. 
 
 XXVI. Notwithstanding any thing hereinbefore contained, no person shall be entitled to 
 vote in the election of a knight or knights of the shire, in any future parliament, unless he 
 shall have been duly registered according to tlie provisions hereinafter contained : and that 
 no person shall be registered, in any year, in respect of his estate or interest in any lands or 
 tenements, as freeholder, copyholder, customary tenant, or tenant in ancient demesne, unless 
 he shall have been in the actual possession thereof, or in the receipt of the rents and profits 
 thereof, for his own use, for six calendar months at least, next previous to the last day of 
 July in such year, which said period of six calendar months shall be sufficient, any statute to 
 the contrary notwitlistanding : and that no person shall be so registered in any year, in 
 respect of any lands or tenements held by him, as such lessee or assignee, or as such occupier 
 or tenant as aforesaid, unless he shall have been in the actual possession thereof, or in the 
 receipt of the rents and profits thereof, for his own use, as the case may require, for twelve 
 calendar months next previous to the last day of July in such year: provided, always, that 
 when any lands or tenements, which would otherwise entitle the owner, holder, or occupier 
 thereof to vote in any such election, shall come to any person, at any time, within such 
 respective periods of six or twelve calendar months, by descent, succession, marriage, mar- 
 riage settlement, devise or promotion to any benefice in a church, or by promotion to any 
 office, such person shall be entitled, in respect thereof, to have his name inserted as a voter 
 in the election of a knight or knights of the shire, in the lists then next to be made, by virtue 
 of this act hereinafter mentioned, and upon his being duly registered according to the pro- 
 visions hereinafter contained, to vote in such election. 
 
 XXVII. In every city or borough which shall return a member or members, to serve in 
 any future parliament, any male person of full age, and not subject to any legal incapacity, 
 who shall occupy, within such city or borough, or within any place sharing in the election 
 for such city or borough, as owner or tenant, any house, warehouse, counting-house, shop, 
 
OF THE LAW OF ENGDAND. 33T 
 
 or other building, being either separately or jointly with any land, within such city, borough, 
 or place occupied therewith, by him as owner, or occupied therewith by him as tenant, under 
 the same landlord, of the clear yearly value of not less than ten pounds, shall, if duly regis- 
 tered according to the provisions hereinafter contained, be entitled to vote in the electian of 
 a member or members, to serve in any future parliament for such city or borough: provided, 
 always, that no such person shall be so registered, in any year, unless he shall have oc- 
 cupied such premises as aforesaid for twelve calendar months, next previous to the Ihst day 
 of July in such year, nor unless such person, where such premises are situate in any parish 
 or township in which there shall be a rate for the relief of the poor, shall have been rated in 
 respect of such premises to all rates for the relief of the poor in such parish or township, 
 made during the time of such his occupation so required as aforesaid, nor unless such pereon 
 shall have paid, on or before the twentieth day of July in such year, all the poors' rates and 
 assessed taxes which shall have become pa}able from him, in respect of such premises pre- 
 viously to the sixth day of April then next preceding : provided, also, that no such person shall 
 be so registered in any year unless he shall have resided for six calendar months next previcus 
 to the last day of July in such year, within the city or borough, or within the place sharing in 
 the election for the city or borough, in respect of which city, borough, or place respectively, - 
 he shall be entitled to vote, or within seven statute miles thereof, or of any part thereof. 
 
 XXVIII. The premises, in respect of the occupation of which any person sliall be 
 entitled to be registered in any year, and to vote in the election for any city or borough as 
 aforesaid, shall not be required to be the same premises, but may be difl'erent premises, 
 occupied in immediate succession by such person during the twelve calendar months next 
 previous to the last day of July in such year, such person having paid, on or before the 20th 
 day of July in such year, all the poors' rates and assessed taxes which shall, previously to the 
 sixth day of April then next preceding, have become payable from him, in respect of all 
 such premises so occupied by him in succession. 
 
 XXIX. Where any premises as aforesaid, in any such city or borough, or in any place 
 sharing in the election therewith, shall be jointly occupied by more persons than one, as 
 owners or tenants, each of such joint occupiers shall, subject to the conditions hereinbefore 
 contained as to persons occupying premises in any such city, borough, or place, be entitled 
 to vote in the election for such city or borough, in respect of the premises so jointly occupied, 
 in case the clear yearly value of such premises shall be of an amount which, when divided 
 by the number of such occupiers, shall give a sum of not less than ten pounds for each and 
 every such occupier, but not otherwise. 
 
 XXX. In every city or borough which shall return a member or members, to serve in 
 any future parliament, and in every place sharing in the election for such city or borough, it 
 shall be lawful for any person occupy ing any house, warehouse, counting-house, house, shop, 
 or other building, either separately or jointly with any land occupied therewith, by him as 
 owner or as tenant, under the same landlord, in any parish or township in which there shall 
 be a rate for the relief of the poor, to claim to be rated to the relief of the poor in respect of 
 such premises, whether the landlord shall or shall not be liable to be rated to the relief of the 
 poor in respect thereof; and upon such occupier so claiming, and actually paying or tender- 
 ing the full amount of the rate or rates, if any, then due in respect of such premises, the 
 overseers of the parish or township in which such premises are situate, are hereby required 
 to put the name of such occupier upon the rate for the time being : and in case such over- 
 seers shall neglect or refuse so to do, such occupier shall, nevertheless, for the purposes of 
 this act, be deemed to have been rated to the relief of the poor in respect of such premises, 
 from the period at which the rate shall have been made, in respect of which he shall have so 
 claimed to be rated as aforesaid : provided always, that when, by virtue of any act of parlia- 
 ment, the landlord shall be liable to the payment of the rate for the relief of the poor, in 
 respect of any premises occupied by his tenant, nothing herein contained shall be deemed 
 to vary or discharge the liability of such landlord : but that in case the tenant who shall have 
 been rated for such premises, in consequence of any such claim as aforesaid, shall make 
 default in the payment of the poors' rate, due in respect thereof, such landlord shall be, and 
 remain, liable for the payment thereof, in the same manner as if he alone had been rated in 
 respect of the premises so occupied by his tenant. 
 
 2 u 
 
338 RISE, PROGRESS, AND IMPROVEMENT 
 
 XXXI. In any city or to^vn being a county of itself, in the election for which freeholders 
 or burgage tenants, either with or without any superadded qualification, now have a right to 
 vote, every such freeholder or burgage tenant shall be entitled to vote in the election of a 
 member or members to serve in all future parliaments for such city or town, provided he 
 shall be duly registered according to the provisions hereinafter contained ; but no such 
 person shall be so registered in any year, in respect of any freehold or burgage tenement, 
 unless he shall have been in the actual possession thereof, or in the receipt of the rents and 
 profits thereof for his own use for twelve calendar months next previous to the last day of 
 July in such year, (except when the same shall have come to him at any time within 
 fcuch twelve months, by descent, succession, marriage, marriage settlement, devise, or pio- 
 molion to any benefice in a church, or to any office,) nor unless he shall have resided for 
 six calendar months next previous to the last day of July in such year, within such city or 
 town, or within seven statute miles thereof, or of any part thereof: provided always, that 
 nothing in this enactment shall' be deemed to vary or abridge the provisions hereinbefore 
 made, relative to the right of voting for any city or town being a county of itself, in respect 
 of any freehold for life or lives: provided also, that every freehold or burgage tenement 
 which may be situate without the present limits of any such city or town being a county of 
 itself, but within the limits of such city or town, as the same shall be settled and described 
 by the act to be passed for that purpose, as hereinbefore mentioned, shall confer the right 
 of voting in the election of a member or members to serve in any future parliament for 
 such city or town, in the same manner as if such freehold or burgage tenement were situate 
 within the present limit thereof. 
 
 XXXII. Every person who would have been entitled to vote in the election of a member 
 or members to serve in any future parliament, for any city or borough not included in 
 schedule A, eitlier as burgess or freeman, or in the city of London as a freeman and livery- 
 man, if this act had not been passed, shall be entitled to vote in such election, provided such 
 person shall be duly registered according to the provisions hereinafter contained; but no 
 such person shall be so registered in any year, unless he shall, on the last day of July in such 
 year, be qualified in such manner as would entitle him then to vote if such day were the day 
 of election, and this act had not been passed, nor unless where he shall be a burgess or fret - 
 man, or freeman and livery-man of any city or borough, he shall have resided for six calendar 
 months next previous to the last day of July in such year, within such city or boiough, or 
 withm seven statute miles from the place where the poll for such city or borough shall here- 
 tofore have been taken, nor unless where he shall be a burgess and freeman of any place 
 sharing in the election for any city or borough, he shall have resided for six calendar months 
 next previous to the last day of July in such year, within such respective place so sharing as 
 aforesaid, or within seven statute miles of the place mentioned in conjunction with such re- 
 spective place so sharing as aforesaid, and named in the second column of schedule E 2 : 
 provided always, that no person who shall have been elected, made, or admitted a burgess 
 or freeman since the first day of March, 1831, otherwise than in respect of birth or servi- 
 tude, or who shall hereafter be elected, made, or admitted a burgess or freeman otherwise 
 than in respect of birth or servitude, shall be entitled to vote as such in any such election 
 for any city or borough as aforesaid, or to be so registered as aforesaid : provided also, that 
 no person shall be so entitled as a burgess or freeman, in respect of birth, unless his right be 
 originally derived from or through some person who was a burgess or freeman, or entitled 
 to be admitted a burgess or freeman previously to the first day of March, 1831, or from or 
 through some person who since that time shall have become, or shall hereafter become, a 
 burgess or freeman in respect of servitude : provided also, that every person who would have 
 been entitled, if this act had not been passed, to vote as a burgess and freeman of Swansea, 
 loughor, Neath, Aberavon, or Ken-fig, in the election of a member to serve in any futuie 
 parliament for the borough of CardilT, shall cease to vote in such election ; and shall, instead 
 thereof, be entitled to vote as such burgess or freeman in the election of a member to serve 
 in all future parliaments for the borough composed of the towns of Swansea, Loughor, 
 Neath, Aberavon, ajid Ken-fig, subject ahvays to the provisions hereinbefore contained 
 with regard to a burges»or freeman of any place sharing in the election for any city or 
 borough. 
 
OF THE LAW OF ENGLAND. 339 
 
 XXXI IL No person shall be entitled to vote in the election of a member or members to 
 serve in any future parliament for any city or borough, save and except in respect of some 
 right conferred by this act, or as a burgess or freeman, or as a freeman and livery-man, or 
 in the case of a city or town being a county of itself, as a freeholder or burgage tenant, as 
 hereinbefore mentioned : provided always, that every person now having a right to vote in 
 the election for any city or borough, (except those enumerated in schedule A,) in virtue ot 
 any other qualification than as a burgess or freeman, or as a freeman and livery-man, or, in 
 the case of a city or town being a county of itself, as a freeholder or burgage tenant, as be- 
 fore mentioned, shall retain such right of voting so long as he shall be qualified as an elector, 
 according to the usages and customs of such city or borough, or any law now in force ; and 
 such person shall be entitled to vote in the election of a member or members to serve in any 
 future parliament for such city or borough, if duly registered according to the provisions 
 hereinafter contained ; but that no such person shall be so registered in any year, unless he 
 shall, on the last day of July in such year, be qualified {is such elector in such manner as 
 would entitle him then to vote if such day were the day of election, and this act had not 
 been passed, nor unless such person, when his qualification shall be in any city or borough, 
 shall have resided for six calendar months next pi-evious to tlie last day of July in such 
 year, within such city or borough, or within seven statute miles from the place where the 
 poll for such city or borough shall heretofore have been taken, nor unless such person, when 
 his qualification shall be within any place sharing in the election for any city or borough, 
 shall have resided for six calendar months next previous to the last day of July in such 
 place, within such respective place so sharing as aforesaid, or within seven statute miles of 
 the place mentioned in conjunction with such respective place so sharing as aforesaid, and 
 named in the second column of schedule E 2 : provided nevertheless, that every such per- 
 son shall for ever cease to enjoy such right of voting for any such city or borough as afore- 
 said, if his name shall have been omitted for two successive years from the register of such 
 voters for such city or borough hereinafter directed to be made, unless he shall have been 
 so omitted in consequence of his having received parochial relief within twelve calendar 
 months next previous to the last day of July in any year, or in consequence of his absence 
 on the naval or military service of his majesty. 
 
 XXX iV. Every person now having a right to vote for the borough of New Shorcham, 
 or of Cricklade, Aylesbury, or East Retford, respectively, in respect of any freehold, where- 
 soever the same may be situate, shall retain such right of voting, subject always to the same 
 provisions as are hereinbefore mentioned with regard to persons whose right of voting for 
 any borough is saved and reserved by this act ; save and except that such persons now having 
 a right to vote for the borough of New Shoreham, Cricklade, Ajlesbury, or East Retford, 
 respectivelj', shall not be registered in any year, unless they shall have resided for six calen- 
 dar months next previous to the last day of July in such year, within either of these above 
 mentioned boroughs respectively, as defined by this act, or within seven statute miles of 
 such respective borough, or of any part thereof; and that for the purpose of the registra- 
 tion hereinafter required, of all persons now having a right to vote for the borough of 
 New Shoreham, in respect of any freehold that may be situate in the borough of Horsham, 
 or for the borough of Cricklade, in respect of any freehold which may be situate in the 
 borough of Malmsbury, as such boroughs of Horsham or Malmsbury may respectively be 
 defined by the act to be passed for that purpose, shall be inserted in the list of voters herein- 
 after directed to be made by the overseers of that parish or township within the borough of 
 New Shoreham, or the borough of Cricklade, respectively, as defined by this act, which shall 
 be next adjoining to the parish or township in which such freehold shall respectively be 
 situate ; and if the parish or township in which any such freehold shall be situate, shall ad- 
 join two or more parishes or townships within either of the said boroughs of New Shoreham or 
 Cricklade, the persons so having a right to vote in respect of such freehold, shall be inserted 
 in the list of voters to be made by the ovei*seers of the least populous of such adjoining 
 parishes or townships, according to the last census for the time being. 
 
 XXXV. Provided nevertheless, that notwithstanding any thing hereinbefore contained, 
 no pei-son shall be entitled to vote in the election of a member or members to serve in any 
 future parliaments for any city or borough, (other than a city or town being a county of 
 
34.0 RISE, PROGRESS, AND IMPROVEMENT 
 
 itself in the election for which freeholders or burgage tenants have a right to vote as before 
 mentioned) in respect of any estate or interest in any burgage tenement or freehold which 
 shall have been acquired by such person since the first day of March, 1831, unless the same 
 shall have come or been acquired by such person since that day, and previous to the passing 
 of this act, by descent, succession, marriage, marriage settlement, devise, or promotion to any 
 benefice in a church, or by promotion to any office. 
 
 XXXVI. No person shall be entitled to be registered, in any year, as a voter in the 
 election of a member or members, to serve in any future parliament for any city or borough, 
 who shall, within twelve calendar months next previous to the last day of July in such year, 
 have received parochial relief or other alms, which, by the law of parliament, now disqualify 
 from voting in the election of members to serve in parliament. 
 
 XXX VIJ. And whereas it is expedient to form a register of all persons entitled to vote 
 in the election of a knight or kru'ghts of the shire, to serve in any future parliament, and 
 that, for the purpose of forming such register, the overseers of every parish and township 
 should annually make out lists in the manner hereinbefore mentioned ; be it therefore enacted, 
 that the overseers of the poor of every parish and township shall, on tlie twentieth day of J une 
 in the present and in every succeeding year, cause to be fixed on or near the doors of all ttie 
 churches and chapels witliin such parish or township, or if there be no chuich or chapel there- 
 in, then to be fixed in some public and conspicuous station, within the same respectively, a 
 notice according to the form numbered I., in schedule H, requiring all persons who may be 
 entitled to vote in the election of a knight or knights of the shire, to serve in any future 
 parliament, in respect of any property situate wholly or in part in such parish or township, 
 to deliver or transmit to the said overseers, on or before the twenty-ninth July, in the present 
 and every succeeding year, a notice of their claim as such voters, according to the form num- 
 bered II. schedule H, or to the like eflect: provided always, that after the formation of the 
 register to be made in each year, as hereinafter mentioned, no person, whose name shall be 
 upon such register for the time being, shall be required thereafter to make any such claim 
 as aforesaid, so long as he shall retain the siime qualification, and continue in the same place 
 of abode described in such register. 
 
 XXX VI i I. The overseers of the poor of every parish and township shall, on or before 
 the last day of J uly in the present year, make out, or ciuse to be made out, according to the 
 form numbered III. in schedule H, an alphabetical list of all persons who shall claim as afore- 
 said, to be inserted in such list as voters in the election of a knight or knights of the shire, to 
 stJi-ve for the county, riding, parts, or division of the county wherein such parish or town- 
 ship lies, in respect of any lands or tenements situate wholly or in part within such parish or 
 township : and that the said overseers shall, on or before the last day of July in every suc- 
 ceeding year, make out, or cause to be made out, a like list, containing the names of all 
 persons who shfUl be upon the register for the time being as such voters, and also the names 
 of all persons who shall claim , as aforesaid, to be inserted in such last mentioned lists as voters : 
 and in every list so to be made by the overseers, the christian name and surname of every 
 person shall be written at full length, toi^ether with the place of his abode, the nature of his 
 qualification, and the local or other description of such lands or tenements, as the same are 
 respectively set forth in his claim to vote, and the name of the occupying tenant, if stated in 
 such claim : and the said overseers, if they shall have reasonable cause to believe that any 
 person so claiming, or whose names shall appear in the register for the time teing, is not 
 entitled to vote in the election of a knight or knights of the shire, for the county, riding, 
 parts, or division of a county, in which their parish or township is situate, shall have 
 power to add the words, "objected to," opposite the name of every such person, on the 
 margin of such list ; and the said overseers sliall sign such list, and shall cause a sufiicimt 
 number of copies of such list to be written or printed, and to be fixed on or ntar the doore of 
 all the churches and chapels within their parish or township, or if there be no church or 
 chapel, then to be fixed upon some public and conspicuous situation, within the same 
 respectively, on the two Sundays next after such list shall have been made : and the said 
 overseers shall likewise keep a true copy of such list, to be perused by any person without 
 payment of any fee, at all reasonable hours during the two first weeks after such list shall have 
 been niadtj : provided, always, that any precinct or place, whether extra parochial, or other-. 
 
OF THE LAW OF ENGLAND. 341 
 
 wise, which shall have no overseers of the poor, shall, for the purpose ol making out such list, 
 be deemed to be within the parish or township adjoining thereto, such parish or township 
 being situate within the same county, riding, parts, or division of a county, as such precinct or 
 place : and if such precinct or place shall adjoin two or more parishes or townships, so situate 
 as aforesaid, it shall be deemed to be within the least populous of these parishes or townships, 
 according to the last census for the time being : and the overseers of the poor of any such 
 parish or township shall insert, in the list for their respective parish or township, the names 
 of all persons who slxall claim as aforesaid, to be inserted therein as voters in the election of 
 a knight or knights of the shire, to sei-ve for the county, riding, part, or division of a county 
 iji which such precinct or place as.aforesaid lies, in respect of any lands or tenements situate 
 wholly or in part within such precinct or place. 
 
 XXXIX. Every person who shall be upon the register, for the time being, of voters for 
 any county, riding, parts, or division of a county, or who shall have claimed to be inserted in 
 any list for the then current year of voters, for any county, riding, or parts, or division of a 
 county, may object to any person, as not having been entitled, on the last day of July then 
 next preceding, to have his name inserted in any list of voters for such county, &c. , so to be 
 made out as aforesaid : and every person so objecting, (save and except overseers objecting 
 in the manner before mentioned,) shall, on or before the twenty- fifth day of August in the 
 present and in every succeeding year, give, or cause to be given, a notice in writing, accord- 
 ing to the form numbered IV. in schedule H, or to the like effect, to theoverseers who shall 
 have made out the list in which the name of the person so objected to shall have been insert- 
 ed : and the person so objecting shall, also, on or before the twenty-fifth day of August, in 
 the present and in every succeeding year, give to the person objected to, or leave at his place 
 of abode, as described in such list, or personally deliver to his tenant in occupation of the 
 premises described in such list, a notice in writing, according to the form numbered V. in 
 schedule H, or to the like efiect ; and the overseers shall include the names of persons so 
 objected to in a list, according to the form numbered VI. in schedule H, and shall cause copies of 
 such list to be fixed on or near the doors of all the churches or chapels within their parish or 
 township, or in some public and conspicuous situation within the same respectively, on the 
 two Sunda) s next preceding the fifteenth day of September, in the present and in every suc- 
 ceeding year : and the overseers shall likewise keep a copy of the names of all the persons so 
 objected to, to be perused by any person, without pa)ment of any fee, at all reasonable hours 
 during the ten days next preceding the said fifteenth day of September, in the present and 
 every succeeding year. 
 
 XL. On the twenty-ninth day of August, in the present and every succeeding year, the 
 overseers of every parish and township shall deliver lists of voters, together with a written state- 
 ment of the number of persons objected to by the overseers and by other persons, to the high 
 constable of the hundred or other like district in which such parish or township is situate ; and 
 such high constable shall forthwith deliver all such lists, together with such statements, us 
 aforesaid, to the clerk of the peace of the county, riding, or parts, who shall forthwith make 
 out an abstract of the number of persons objected to by the overseers and by other persons in 
 each parish and township, and transmit the same to the barristers appointed, as hereinafter 
 mentioned, to revise such lists, in order that the said barristers may fix proper times and 
 places for holding their courts for the revision of the said lists. 
 
 XLI. The lord chief justice for the court of king's bench, for the time being, shall, in 
 the month of July or August in the present and in every succeeding year, nominate and 
 appoint for Middlesex, and the senior judge, for the time being, in the commission of assize 
 for every other county, shall, when travelling the summer circuit, in the present and in every 
 succeeding year, nominate and appoint, for every such county or for each of the parts, ridings, 
 or divisions of such counties, barristers to revise the list of voters in the election of knights of 
 the shire : and such barristers so appointed, shall give public notice, as well by advertise- 
 ment by some of the newspapers circulating within the county, &c., as also, by a notice to 
 be fixed in some public and conspicuous situation, at the principal place of election for the 
 county, &c., (such last mentioned notice to be given three days, at the least, before the com- 
 mencement of their circuit,) that he or they will make a circuit of the county, riding, parts, 
 or division for which he or they shall be appointed, and of the several times or places at 
 
342 RISE, PROGRESS, AND IMPROVEMENT 
 
 which he or they will hold courts for that purpose, such terms being between the fifteenth 
 day of September inclusive, and the twenty-fifth day of October inclusive, in the present 
 and every succeeding year, and they shull hold open courts for that purpose, at the times and 
 places so to be announced ; and where two or more barristers shall be appointed for the same 
 county, &c., they shall attend at the same places together, but shall sit apart from each 
 other, and hold separate courts at the same time for the dispatch of business ; provided always, 
 that no member of parliament, nor any person holding any office or place of profit under the 
 crown, shall be appointed such barrister, and that no barrister, appointed as aforesaid, shall be 
 eligible to serve in parliament for eighteen months from the time of such his appointment. 
 
 XLII. The clerk of the peace shall, at the opening of the first court to be held by every 
 such barrister, for any county, riding, parts, or division of a county, produce, or cause to be 
 produced belore him, the several lists of voters for such county, &c., which shall have been 
 delivered to such clerk of the peace, by the high constables : and the overseers of every 
 parish and township, who shall have made out the list of voters, shall attend the court to be 
 held by every such barrister, at the place appointed for revising the lists relating to such 
 parish and township respectively, and also shall deliver"to such barrister, a copy of the list of 
 the persons objected to ; and the said overseers shall answer, upon oath, all such questions as 
 such barrister may put to any of them, touching any matter necessary for revising the list 
 of voters : and any such barrister shall retain, on the list of the voters, the names of all 
 persons to whom no objection shall have been made by the overseers or by any other person : 
 and he shall also retain, on the list of voters, the name of any person who shall have been 
 objected to by any person other than the overseers, unless the party so objecting shall appear 
 by himself or by some one on his behalf, in support of such objection : and when the name of 
 any person, inserted in the list of voters, shall have been objected to by the overseers, or by 
 any other person, and such person, so objecting, shall appear by himself or by some one on 
 his behalf in support of such objection, every such barrister shall require it to be proved that 
 the person so objected to was entitled, on the last day of July then next preceding, to have 
 his name inserted in the list of voters in respect of the qualification described in sucli list; 
 and in case the same shall not be proved to the satisfaction of such barrister, or in c^se it 
 shall be proved that such person was then incapacitated, by any law or statute, from voting 
 in the election of members to serve in parliament, such ban ister shall expunge the name of 
 any such person from the said lists ; and he shall also expunge from the said lists the name 
 of every person who shall be proved to him to be dead •, and shall correct any mistake which 
 shall be proved to him to have been made in any of the said lists, as to any of the particulars 
 by this act required to be inserted in such lists; and when the christian name of any person, 
 his place of abode, or the nature of his qualification, or the local or other description of 
 his property, or the name of the tenant in occupation thereof, as the same respectively are 
 required to be inserted in any such list, shall be wholly omitted therefrom, such barrister 
 shall expunge the name of every such person from every such list, unless the matter or 
 matters so omitted be supplied to the satisfaction of such barrister, before he shall have 
 completed the revision of such list, in which case he shall then and there insert the same in 
 such list, except in case of his death or of his being objected to on the margin of the list by 
 the overseers as aforesaid, or in case of any such omissions as last mentioned, unless such 
 notice as is hereinbefore required in that behalf shall have been given to the overseers, nor 
 unless such notice as is required in that behalf shall have been given to such person, or left 
 at his place of ^bode, or delivered to his tenant. 
 
 XLIII. Provided also, that if it shall happen that any person who shall have given to the 
 overseers of any parish or township, due notice of his claim to have his name inserted in the 
 list of voters in the election of knights of the shire shall have been omitted by such over- 
 seers from such list, it shall be lawful for the barrister, upon the revision of such list, to 
 insert therein the name of the person so omitted, in case it shall be proved to the satisfaction 
 of such barrister, that such person gave due notice of such his claim to the said overseers, 
 and that he was entitled, on the last day of July then next preceding, to be inserted in the 
 list of voters in the election of knights of the shire for the county, riding, parts, or division 
 wherein the parish or township of such overseers may be situate, in respect of any lands oi 
 tenements within such parish or township. 
 
OF THE LAW OF ENGLAND. 343 
 
 XLI V. The overseers of the poor of every parish and township, either wholly or in part 
 situate within any city, or borough, or place sharing in the election for any city or borou«Th, 
 which shall return a member or members to serve in any future parliament, shall, on or 
 before the last day of July, in the present and in each succeeding year, make out, or cause 
 to be made out, according to the form numbered I. in schedule I, an alphabetical list of all 
 persons who may be entitled to vote in the election of members to serve in any future parlia- 
 ment for such city or borough, in respect of the occupation of premises of the ckar yearly 
 value of not less than ten pounds, situate wholly or in part within such parish or township, 
 and another alphabetical list, according to the form numbered IL in the said schedule I, of 
 all other persons (except freemen) who may be entitled to vote in the election for such city 
 or borough, by virtue of any other right whatsoever : and in each of the said lists the 
 christian name and surname of any person shall be written at full length, together with the 
 nature of his qualification ; and when any person shall be entitled to vote in respect of any 
 property, then the name of the street, lane, or other description of the place where such 
 property may be situate shall be specified in the list: and when any person shall be entitled 
 to vote otherwise than in respect of any property, then the name of the street, lane, or other 
 description of the place of such person's abode, shall be specified in the list : and the over- 
 seers shall sign each of such lists, and shall cause a sufficient number of copies of such lists to 
 be printed, and to be fixed on or near the doors of all the churches and chapels in their 
 several parishes and townships, and if there be no church or chapel therein, then to be fixed 
 up in some public conspicuous situation within the same respectively, on the two Sundays 
 next after such lists shall have been made ; and the said overeeers shall likewise keep true 
 copies of such lists, to be perused by any person, without payment of any fee, at all reason- 
 able hours during the two first weeks after such list shall have been made. 
 
 XLV. Every precinct or place, whether extra parochial, or othei'wise, having no over- 
 seers of the poor, which now is or hereafter may be within any city, or borough, or place 
 sharing in the election for any city or borough, shall, for the purpose of making out thelist 
 of voters for such city or borough, be deemed to be within the parish or township adjoining 
 thereto, and situate wholly or partly within such city, or borough, or place sharing in the 
 election therewith : and if such precinct or place shall adjoin two or more parishes or town- 
 ships so situate, it shall be deemed to be within the least populous of such parishes or town- 
 ships, according to the last census for the time being : and the overseers of such parish or 
 township shall insert in the list, for their respective parish or township, the names of all 
 persons who may be entitled to vote in the election of members to serve in any future par- 
 liament, for any such city or borough, in respect of any property, occupied by such persons, 
 within such city or borough, or within any place sharing in the election therewith, such 
 property being situate wholly or in part within such precinct or place as aforesaid. 
 
 XLVL The town clerk of every city or borough shall, on or before the last day of July 
 in the present and in each succeeding year, make out, or cause to be made out, according to 
 the form numbered III. of schedule I, an alphabetical list of all the freemen of such city or 
 borough who may be entitled to vote in the election of members, to serve in any future 
 parliament, together with the respective places of their abode : and the town clerks of any 
 place sharing in the election for any city or borough shall, at the respective-times aforesaid, 
 make out, or cause to be made out, a like list of all the freemen of such place who ma) be 
 entitled to vote in the election of members to serve in any future parliament, for such city or 
 borough : and every such town clerk shall cause a copy of every such list to be fixed on or 
 near the door of the town hall, or in some public and conspicuous situation within such 
 respective city, borough, or place as aforesaid, on the two Sundays next after; such list to be 
 perused by any person, without pa}ment of any fee, at all reasonable hours during the two 
 first weeks after such list shall have been made : provided always, that when there shall be 
 no town clerk for such city, borough, or place, or when the town clerk shall be dead or inca- 
 pable of acting, all matters by this act required to be done, by and with regard to the to«ii 
 clerk, shall be done by and with regard to the person executing duties similar to those of the 
 town clerk, and if there be no such person, then, by and with regard to tlie chief civil officer 
 of such borough or place. 
 
 XLVn. Every person whose name shall have been omitted in any such list of voters for 
 
344 RISE, PROGRESS, AND IMPROVEMENT 
 
 any city or borough so to be made out, as before mentioned, and who shall claim to have his 
 name inserted therein, as having been entitled on the last day of July then next preceding, 
 shall, on or before the twenty-fifth day of August in the present, and in every succeeding 
 year, give, or cause to be given, a notice in writing, according to the form numbered IV. in 
 schedule I ; or to the like effect, to the overseers of that parish or township, in the list 
 whereof he shall claim to have his name inserted ; or if he sliall claim as a freeman of any 
 city or borough, or place sharing in the election therewith, then to the to\Tn clerk of such 
 city, borough, or place : and any person whose name shall have been inserted in any list 
 of voters for any city or borough, may object to any other person, as not having been entitled 
 on the last day of July then next preceding, to have his name inserted in any list of voters 
 for the same city or borough ; and every person so objecting, shall, on or before the twewty- 
 fiftii day of August in the present, and in every succeeding year, give, or cause to be given, 
 a notice in writing, according to the form numbered V. in the said schedule 1 ; or to the like 
 effect, to the overseers, who shall have made out the list in which the name of the person so 
 objected to shall have been inserted ; or if the person objected to shall have been inserted in 
 the list of freemen of any city, borough, or place, as aforesaid, then to the town clerk of 
 such city, borough, or place ; and the overseers shall include the names of all persons so 
 claiming, as aforesaid, in a list, according to the form numbered VI. in schedule I ; and the 
 names of all persons so objected to, as aforesaid, in a list, according to tlie form numbered 
 VII. in schedule I ; and shall cause copies of two such lists to be fixed on or near the doors of 
 all the churches and chapels within their parish or township, or in some public and con- 
 spicuous situation within the same, respectively, on the two Sundays next preceding the 
 fifteenth day of September in the present, and in every succeeding year ; and every town- 
 clerk shall include the names of all persons so claiming as freemen in a list, according to 
 the form numbered VIII. in schedule I; and the names of all persons so objected to as freemen 
 in a list, according to the form numbered IX. in schedule 1 •, and shall cause copies of such 
 two lists to be fixed on or near the door of the town hall, or in some public and conspicuous 
 situation within his respective city, borough, or place, as aforesaid, on the two Sunda3S 
 hereinbefore mentioned .in the present, and in every succeeding year ; and the overseers 
 and town clerks shall likewise keep a copy of the names of all persons so claiming, as afore- 
 said ; and also a copy of the mimes of all persons so objected to, as aforesaid ; to be perused 
 by any person, without payment of any fee, at all reasonable hours, during the ten days next 
 preceding the said fifteenth day of September in the present, and in every succeeding 
 year ; and shall deliver a copy of each such list to an}- person requiring the same, on pay- 
 ment of one shilling for each copy. 
 
 XL VIII. For providing a list of such of the freemen of the city of London as are livery- 
 men of the several companies entitled to vote in the election of members to serve in any 
 future parliament for the city of London, the returning officers of the said city shall, on or 
 before the last day of July in the present, and in each succeeding year, issue precepts to the 
 clerks of the said livery companies, requiring them forthwith to make out, or cause to be 
 made out, at the expense of the respective companies, an alphabetical list, according to the 
 form in the schedule K, of the freemen of London, being livery-men of the said respective 
 companies, and entitled to vote in such election; and every such clerk shall sign such list, 
 and transmit the same, with two printed copies thereof, to such returning ofiicers, who shall 
 forthwith fix one such copy in the Guildhall, and one in the Royal Exchange of the said city, 
 there to remain fourteen days in the present and in every subsequent year; and the clerks 
 of the said livery companies shall cause a sufficient number of such lists of freemen and 
 livery-men of their respective companies to be printed, at the expense of the respective 
 companies, and shall keep the same to be perused, without payment of any fee, at all rea- 
 sonable hours during the two first weeks after such lists shall have been printed ; and every 
 person whose name shall have been omitted in any such list of freemen and livery-men, and 
 who shall claim to have his name inserted therein, as having been entitled on the last day 
 of July then next preceding, shall, on or before the twenty-fifth day of August in the pre- 
 sent and every succeeding year, give, or cause to be given, a notice in writing, according to 
 the form numbered I. in schedule K, or to the like eflect, to the returning officers, and to 
 the derk of that company in the list whereof he shall claim to have his name inserted ; and 
 
OF THE LAW OF ENGLAND. 345 
 
 the returning officer shall include the names of all persons so claiming, as aforesjiitl, in a list, 
 according to the form numbered U. in schedule K, and shall cause such last mentioned list 
 to be fixed in the Guildhall and lloycd Exchange of the said city, on the two Mondays next 
 preceding the fifteenth day of September in the present and in every succeeding year ; and the 
 said returning officers and clerks of the said companies shall likewise keep a copy of the names 
 of ail the persons so claiming, as aforesaid, to be perused by any pei-son, without payment 
 of any fee, at all reasonable hours, during the ten days next preceding the said fifteenth day 
 of September in the present and every succeeding year ; and any person who sKall object 
 to any other person, as not having been entitled on the last day of July then next preceding 
 to have his name inserted in any such livery list, shall, on or before the twenty-fifth day of 
 August in the present and every succeeding year, give to such other person, or leave at liis 
 usual place of abode, a notice in writing, according to the form numbered III. in schedule K, 
 or to the like effect; and in tlie city of London the returning officers shall take the poll or 
 votes of such freemen of the said city, being livery-men of the several companies as are en- 
 titled to vote at such election in the Guildhall of the said city; and the said returning officers 
 shall not be required to provide any booth or compartments, but shall appoint, or take one 
 poll for the whole number of such livery-men at the same place. 
 
 XLIX. The lord chief justice of the court of King's Bench for the time being, shall, in 
 the month of July or August in the present and every succeeding year, nominate and ap- 
 point so many barristers as the said lord chief justice shall deem necessary, to revise the re- 
 spective lists of voters for the city of London and Westminster, and for the several boroughs 
 in the county of Middlesex ; and the senior judge for the time being in the commission of 
 assize for every other county, when travelling the summer circuit in the present and every suc- 
 ceeding year, shall nominate and appoint so many barristers as the said judge shall deem 
 )iecessary, to revise the respective lists of voters, as well for the several cities and boroughs 
 in every such county, as for every city and town, and county of a city and town, next ad- 
 joining to any such county; and the town and county of the town of Kingston-upon-HuU, 
 shall for this purpose be considered as next adjoining to the county of York ; and tlie town 
 and county of a town of Newcastle-upon-Tyne, as next adjoining to tlie county of Northum- 
 berland ; and the city and county of the city of Bristol, as next adjoining to the county of 
 Somerset; and the said lord chief justice and judge, respectively, shall have power to 
 nominate and appoint one or more barristers to revise tlie lists for the same city or borough, 
 or other place as aforesaid, or one barrister only, to revise the lists for several cities, boroughs, 
 and other places, as aforesaid : provided always, that no member of parliament, nor any 
 person holding any place of profit under the crown, shall be appointed such barrister as 
 aforesaid ; and that no barrister so appointed as aforesaid, shall be eligible to serve in par- 
 liament for eighteen months from the time of his appointment for any city, borough, or 
 other, place, as aforesaid, for which he shall be so appointed: provided also, that nothing 
 herein contained shall prevent the same barrister from being appointed to revise the lists 
 for two or more counties, ridings, parts, or divisions, or for any county, riding, part, or 
 division, and any one or more of the cities and boroughs therein. 
 
 L. The barristers so appointed to revise the lists of voters for any city or borough, shall 
 hold open courts for that purpose within such city or borough, and also within every place 
 sharing in the election for such city or borough, at some time between the fifteenth day of 
 September, inclusive, and the twenty-fifth day of November, inclusive, in the present and 
 in every succeeding year, having first given three clear daj s' notice of the holding of such 
 court or courts, to be fixed on all the doors of churches and chapels >vithin such city, 
 borough, or place, respectively ; or if there be no church or chapel therein, then to be fixed 
 in some conspicuous public situation within the same, respectively : and the overseers and 
 town clerks, who shall have made out lists of voters,*^ aforesaid ; and in the case of the city 
 of London, the returning officer or officers of the said city shall, at the opening of the fii-st 
 court to be held by every such barrister for revising such lists, produce their respective lists 
 before him ; and the said overseers and town clerks shall also deliver to such barrister a 
 copy of the lists of the persons objected lo, so made out by them, as aforesaid ; and the clerks 
 of the several livery companies of the city of London, and the town clerk of any other city 
 or borough, or place sharing in the election therewith, and the several ovei-seei-s within every 
 
 2 X 
 
346 RISE, PROGRESS, AND IMPROVEMENT 
 
 city, borough, or place, as aforesaid, shall attend the court to be held by every such bar- 
 rister, for any such city, borough, or place, as aforesaid, and shall answer upon oath all 
 such questions as such barrister may put to them, or any of them, touching any matter 
 necessciry for revising the list of voters ; and every such barrister shall insert in such Jist 
 the name of every person who shall be proved, to his satisfaction, to have been entitled 
 on the Jast day of July then next preceding to have his name inserted in any such list of 
 votei-s for such city or borough ; and such barrister shall retain, on the list of voters for such 
 city cr borough, the names of all persons to whom no objection shall have been made, in the 
 manner hereinbefore mentioned ; and he shall also retain on the said list the name of every 
 person who shall have been objected to by any person, unless the pai ty so objecting shall 
 appear by himself, or by some one on his behalf, in support of such objection ; and when the 
 name of any person inserted in the list of voters for such city or borough shall have been 
 objected to, in the manner hereinbefore mentioned, and the person so objecting shall appear 
 by himself, or by some one on his behalf, in support of such objection, every such barrister 
 shall require it to be proved that the person so objected to was entitled on the last day of July 
 then next preceding to have his name inserted in the list of voters for such city or borough, 
 in respect of the qualification described in such list ; and in case the same shall not be 
 proved to the satisfaction of such barrister, or in aise it shall be proved that such person 
 was then incapacitated by any law or statute from voting in the election of members to serve 
 in parliament, such barrister shall expunge the name of any such person from the said 
 list, and he shall also expunge from the said list the name of any person who shall be 
 proved to him to be dead, and shall correct any mistake which shall be proved to him to 
 have been made in any of the said list, as to any of the particulars by this act required to 
 be inserted in such lists ; and where the christian name, or the place of abode, or the natuie 
 of the qualification, or the local description of the property of any person who shall be in- 
 cluded in any such list, shall be wholly omitted in such list in any case, where the same is 
 by this act directed to be specified therein, such barrister shall expunge the name of every 
 such person from such list, unless the matter or matters so omitted be supplied to the satis- 
 faction of such barrister, before he shall have completed the revision of such list, in which 
 case he shall then and there insert the same in such list: provided always, that no person's 
 name shall be inserted by such barrister in any such list for any city or borough, or shall be 
 expunged therefrom, except in the case of death, or of such omission or omissions as herein- 
 before last mentioned, unless such notice shall have been given, as is hereinbefore required, 
 in each of the said cases. 
 
 LI. The overseers of any parish or township shall, for their assistance in making out 
 the lists, in pursuance of this act, (upon request made by them, or any of them, at .'my 
 reasonable time between the first day of June and the l.'ist day of July in the present and in 
 every succeeding year, to any assessor or collector of ttixes, or to any other officer having the 
 custody of any duplicate or tax assessment for such parish or township,) have free liberty to 
 inspect any such duplicate or tax assessment, and to extract from them such particulars as 
 may appear to such overseers to be necessary ; and any barrister appointed under this act 
 shall have power to require any assessor, collector of taxes, or other officer having the custody 
 of any duplicate or tax assessment, or any overseers having the custody of any poors' rate, to 
 produce the same, respectively, before him, at any court to be held by him, for the purpose 
 of assisting him in revising the lists to be by him revised, in pursuance of this act. 
 
 Lll. Every barrister holding any court under this act, as aforesaid, shall have power to 
 adjourn the same from time to time, and from any one place to any other place or places 
 within the same county, riding, parts, or division, or within the same city or borough, or 
 within any place sharing in the election for such city or borough, but so as that no such ad- 
 journed court shall beheld after the twenty-fifth day of October in any year; and every 
 such barrister shall have power to administer an oath (or in the case of a quaker or Moravian, 
 an affirmation,) to all persons making objection to the insertion or the admission of any 
 name in any of such lists, as aforesaid, and to all persons objected to, or claiming to be in- 
 serted in fvny of such lists, or claiming to have any mistake corrected, or any omission sup- 
 plied in any of such lists, and to all witnesses who maybe tendered on either side ; and that, 
 if any person taking an} oath, or making any affirmation under this act, sliall willfully swear 
 
OF THE LAW OF ENGLAND. 347 
 
 or affirm falsely, siich person shall be deemed guilty of perjury, and shall be punished ac- 
 cordingly; and that, at the holding of such respective courts, the parties shall not be attended 
 by counsel ; and that every such barrister shall, upon the hearing in open court, finally de- 
 termine upon the validity of such claims and objections, and shall for that purpose have the 
 same powers, and proceed in the same manner (except where otherwise directed by this act,) 
 as the returning officer of any county, city, or borough, according to the laws and usages 
 now observed at elections ; and such barrister shall, in open court, write his initials against 
 the names respectively struck out or inserted, and against any part of the said lists in which 
 any mistake shall have been corrected, or any omission supplied, and shall sign his name to 
 every page of the several lists so settled. 
 
 LIII. Notwithstanding any thing hereinbefore contained, if it shall be made to appear to 
 the lord chief-justice or judge, who shall have appointed any barristers under this act, to re- 
 vise the list of voters, that by reason of the death, illness, or absence of any such barrister or 
 barristei's, or by reason of the insufficiency of the number of such barristers, or from any 
 other cause, such lists cannot be revised within the period directed by this act, it shall be 
 lawful for such chief-justice or judge, and he is hereby required, to appoint one or more bar- 
 risters to act in the place of, or in addition to, the barrister originally appointed-, and such 
 barristers so subsequently appointed, shall have the same powers and authorities, in every 
 respect, as if they had been originally appointed by such chief-justice or judge. 
 
 LIV. The lists of voters for each county, riding, parts, or division of each county, so 
 signed, as aforesaid, by any such barrister, shall be forthwith transmitted by him to the 
 clerk of the peace of the county, riding, or part for which such barrister shall have been 
 appointed ; and the clerk of the peace shall keep the said lists among the records of the ses- 
 sions, arranged with every hundred in alphabetical order, and with every parish and town- 
 ship within such hundred likewise in alphabetical order, and in every parish and township 
 within such hundred likewise in alphabetical order, and shall forthwith cause the said lists 
 to be fairly and truly copied in the same order in a book, to be by him provided for that 
 purpose, and shall prefix to every name so copied out its proper number, beginning the num- 
 bers from the first name, and continuing them in a regular series down to the last name, 
 and shall complete and deliver such book on or before the last day of October in the present 
 and in every succeeding year, to the sheriff of the county, or his under-sheriff, who shall 
 safely keep the same, and shall, at the expiration of his office, deliver over the same to his 
 succeeding sheriff or his under-sheriff; and tlie list of voters for each city or borough, so 
 signed, as aforesaid, by such barrister, shall be forthwith delivered by him to the returning 
 officer for such city or borough, who shall safely keep the same, and shall cause the said lists 
 to be fairly and truly copied in a book, to be by him provided for that purpose, with every 
 name therein numbered, according to the directions aforesaid, and shall cause such book to 
 be completed on or before tlie last day of October in the present and every succeeding year, 
 and shall deliver over such book, together with the lists, at the expimtion of his office, to the 
 pei-son succeeding him in such office ; and every such book to be so completed on or before 
 the last day of October in the present year, shall be deemed the register of the electors to 
 vote, after the end of this present parliament, in the choice of a member or members to 
 serve in parliament for the county, riding, parts, or division of a county, city, or borough to 
 which such register shall relate, at any election which may take place after the said last day 
 of October in the present, and before the first day of November in the year one thousand 
 eight hundred and thirty-three •, and every such book, to be so completed on or before the 
 last day of October in the year one thousand eight hundred and thirty-three, and in every 
 succeeding year, shall be the register of electors to vote at any election which shall take 
 place between the first day of November inclusive, in the year wherein such respective 
 register shall have been made, and the first day of November in the succeeding year. 
 
 LV. The overseers of any parish and township shall cause to be written, or printed, copies 
 of the lists, so by them to be made in the present and in every succeeding year, and shall 
 deliver such copies to all persons appl}ing for the same, on payment of a reasonable price for 
 each copy •, and the monies arising from the sale thereof, shall be accounted for by the said 
 overseers, and applied to the same purposes as monies collected for the relief of the poor; 
 and the clerks of the peace shall cause to be written, or printed, copies of the registers of the 
 
34iS RISE, PROGRESS, AND IMPROVEMENT 
 
 elections for their respective counties, ridings, parts, or divisions of their respective counties ; 
 and the returning officer of any city or borough, shall aiuse to be written, or printed, copies 
 of the registers of the electors for such city or borough ; and every such cleik of the peace, 
 and every such returning officer, shall deliver such respective copies to all persons applying 
 for the same, on payment of a reasonable price for each copy ; and the monies arising from 
 the sale of all such copies, shall be accounted for to the treasurer of the county, riding, or 
 parts. 
 
 LVI. For the purpose of defraying the expenses to be incurred by the ovei'seers of the 
 poor, and by the clerk of the peace, in carrying into effect the several provisions of this act, 
 as far as relates tp the electors of any county, riding, parts, or division of a county, every 
 person upon giving notice of his claim as such elector to the overseers, as hereinbefore men- 
 tioned, shall pay, or cause to be paid to the said overseer, the sum of one shilling; and such 
 notice of claim shall not be deemed valid until such sum shall have been paid ; and the over- 
 seers of each parish or township shall add all monies so received by them to the money col- 
 lected, or to be collected, for Llie relief of the poor in such parish or township; and such 
 monies so added, shall be applicable to the same purposes as monies collected for the relief 
 ot the poor; and that for the purpose of defraying the expenses to be incurred by the return- 
 ing officer of any city and borough, and by the overseers of the several parishes and town- 
 ships in every cit}', borough, and place sharing in the election therewith, in carrying into 
 ellect the provisions of this act, so far as relates to the electors for such city or borough ; 
 every such elector, whose name shall be upon the register of voters for such city or borough 
 for the time being, shall be liable to the payment of one shilling annuallj-, which sum shall 
 be levied and collected from each elector, in addition to, and as a part of, the money payable 
 by him, as his contribution to the rate for the relief of the poor ; and such sum shall be 
 applicable to the same purposes as money collected for the relief of the poor ; and the 
 expenses incurred by the overseers of any parish or township in making out, priiiting, and 
 publishing the several lists and notices directed by this act, and all other expenses incurred 
 by them in airrying into effect the provisions of this act, shall be defrayed out of the money 
 collected, or to be collected, for the relief of the poor in such parish or township ; and 
 all expenses incurred by the returning officer of any city or borough, in causing the lists of 
 the electors for such city or borough to be copied out and made into a register, and in causing 
 copies of such register to be written or printed, shall be defrayed by the overseer of the poor 
 of the several parishes and townships within such city, borough, or place sharing in the elec- 
 tion therewith, out of the money collected or to be collected for the relief of the poor in such 
 parishes or to^vnship3; and all expenses incurred by the clerk of the peace of any county, 
 riding, or parts, in (siusing the lists of the electors for such county, riding, parts, or for any 
 division of such county, to be copied out and made into a register, and in causing copies of 
 such register to be written or printed, and in otherwise carrying into effect the provisions 
 of this act, shall be defrayed by the treasurer of such county, riding, or parts, out of any 
 public money in his hands, and he shall be allowed all such payments in his accounts : pro- 
 vided always, that no expenses incurred by any clerk of the peace under this act shall be so 
 defrayed, unless the account shall be laid before the justices of the peace at the next quarter 
 sessions after such expenses shall have been incurred and allowed by the court. 
 
 LVII. Evei7 barrister appointed to revise any lists of voters under this act, shall be paid 
 at the rate of five guineas for every day that he shall be so employed, over and above his 
 travelling and other expenses ; and every such barrister, after tlie termination of his last 
 sitting, shall lay, or cause to be laid before the lords commissioners of his majesty's treasury 
 for the time being, a statement of the number of days during which he shall have been so 
 employed, and an account of the travelling and other expenses incurred by him in respect 
 of such employment ; and the said lords commissioners shall make an order for the amount 
 to be paid to such barrister. 
 
 LVI 1 1. In all elections, whatever, of members to serve in any future parliament, no 
 inquiry shall be permitted at the time of polling, as to the right of any person to vote, except 
 only as follows : that is to say, that the returning officer or his respective deputy shall, if 
 required, on behali of any candidate, put to any voter, at the time of tendering his vote and 
 not afterwards, the following questions, or any of them, and no other : — 
 
OF THE LAW OF ENGLAND. 349 
 
 1st, Are you the same person whose name appears as A. B., on the register of voters 
 now in foi-ce for the county of [or for the , riding, parts, or divi- 
 sion, &c,, or for the city, &c., as the case may he^ 1 
 
 2nd, Have you already voted, eitlier here or elsewhere, at this election for the county 
 
 of [or for the , riding, parts, or division of the county of , 
 
 or for the city or borough of , as the case may be] ? 
 
 3rd, Hare you the same qualification for which your name was originally inserted in 
 
 the register of voters, now in force for the county of, &c., [or for the , riding, 
 
 &c., or for the city, &c., as the case viny be, specifying, in each case, the particulars of the 
 qunlijication as described in the register} ? 
 
 And if any person shall wilfully make a false answer to any of the questions aforesaid, he 
 shall he deemed guilty of an indictable misdemeanor, and shall be punished accordingly : 
 and the returning officer or his deputy, or a commissioner or commissioners, to be for that 
 purpose by him or them appointed, shall, (if required on behalf of any candidate at the time 
 aforesaid), administer an oath, (or in case of a Quaker or a Moravian, an affirmation,) la 
 any voter in the following form : (that is to say,) 
 
 '* You do swear, (^or being a Quaker or Moravian, do njjlrm,) that you are the same 
 person whose name appears as A. B., in the register of voters, now in force for tha 
 
 county of [or for the , riding, parts, or division of the county of 
 
 , or for the city or borough of , as the case may be] and that you 
 
 have not before voted, either here or elsewhere, at the present election for the said 
 county, [or for the said riding, parts, or division of the said county, or for the said citii 
 or borougii, as the case may be]. So help you god." 
 
 And no elector shall hereafter, at any such election, be required to take any oath or affir- 
 mation, except as aforesaid, either in proof of his freehold or of his residence, age, or other 
 qualification, or right to rote, any law or statute, local or general, to the contrary notwith- 
 standing, and no person claiming to vote at any such election, shall be excluded from 
 voting thereat, except by reason of its appearing to the returning officer or his respective 
 deputy, upon putting such questions as aforesaid, or any of them, that the person so claiming 
 to vote is not the same person whose name appears at such register aforesaid, or that he has 
 previously voted at the same election, or that he has not the same qualification for which his 
 name was originally inserted in such register, or except by reason of such person refusing to 
 take the said oath, or make the said affirmation, or to take or make the oath or affirmation 
 against bribery, or any other oath or affirmation now required by law, and not hereby dis- 
 pensed with : and no scrutiny shall hereafter be allowed by or before any returning officer, 
 with regard to any votes given or tendered at any election of a member or members, to serve 
 in any future parliament : any law, statute, or usage to the contrary notwithstanding. 
 
 LIX. Provided always, that any person, whose name shall have been omitted from any 
 register of voters, in consequence of the decision of the barrister who shall have revised the 
 lists from which such register shall have been formed, may tender his vote at any election 
 at which such register shall be in force, stating, at the same time, the name or names of tlie 
 candidate or candidates for whom he tenders such vote, and the returning officer or his deputy 
 shall enter upon the poll book any vote so tendered, distinguishing the same from the votes 
 admitted and allowed at such election. 
 
 LX. Provided also, that upon petition to the house of commons, complaining of an undue 
 election or return of any member or members to serve in parliament, any petitioner or any 
 person defending such election or return, shall be at liberty to impeach the correctness ot 
 the register of voters, in force at the time of such election, by proving that in consequence or 
 the decision of the barrister who shall have revised the lists of voters, from Avhich such register 
 shall have been formed, the name of any person who voted at such election was improperly 
 inserted or retained in such register, or the name of any person who tendered his vote at such 
 election improperly omitted from such register : and the select committee appointed for the 
 trial of such petition shall alter the poll taken at such election, according to the truth of the 
 case, and shall report their determination thereupon to tlie house, and the house shall there^ 
 upon carry such dtlermination into effect, and the return shall be amended or the election 
 
350 RISE, PROGRESS, AND IMPROVEMENT 
 
 declared void, as the case may be, and the register corrected accordinglj-, or such otlier order 
 shall be made as to the house shall seem proper. 
 
 LXI. The sherifls of Yorkshire and Lincolnshire, and the sheriffs of the counties divided 
 by this act, shall duly cause proclamation to be made of the several days fixed for the election 
 of a knight or knights of the shire for the several ridings, parts, and divisions of their re- 
 spective counties, and shall preside at the election, by themselves or their lawful deputies. 
 
 LXI I. At every contested election of a knight or knights, to serve in any future parlia- 
 ment, for any county, riding, parts, or division of a county, the polling shall commence at 
 nine o'clock of the forenoon of the next day but two after the day fixed for election, unless sucli 
 next day but two shall be Saturday or Sunday, and thenpn the Monday following at the princi- 
 pal place of election, and also at the several places to be appointed as hereinafter directed for 
 taking polls : and such polling shall continue for two days only, such two days being succes- 
 sive days : (that is to say,) for seven hours on the first day of polling, and for eight hours on 
 the second day of polling : and no poll shall be kept open later than four o'clock in the after- 
 noon of the second day : any statute to the contrary notwithstanding. 
 
 LXIII. The respective counties in England and Wales, and the respective ridings, parts, 
 and divisions of counties shall be divided into convenient districts for polling, and in each 
 district shall be appointed a convenient place for taking the poll at all elections of a knight 
 or knights of the shire, to serve in any future parliament, and such districts and places for 
 taking the poll shall be settled and appointed by the act to be passed in this present parlia- 
 ment, for the purpose of settling and describing the divisions of the counties enumerated in 
 schedule F : provided that no county, nor any riding, parts, or division shall have more than 
 lifteen districts and respective places appointed for fciking the poll for such county, riding, 
 parts, or division. 
 
 LXI V. At every contested election for any county, riding, parts, or division of a county 
 the sherifli under-sherifij or sheriff's deputy shall, if required thereto, by or on behalf of any 
 Cimdidate, on the day fixed for the election, and if not so required, may, if it shall appear to 
 him expedient, cause to be erected a reasonable number of booths, for taking the poll at 
 the principal place of election, and also at each of the polling places, so to be appointed 
 as aforesiiid, and shall cause to be affixed on tlie most conspicuous part of the said booths, the 
 names of the several parishes, townships, and places for which such booth is respectively 
 allotted : and no person shall be admitted to vote at any such election, in respect of any pro- 
 perty situate in any parish, township, or place, except at the booth, allotted for such parish, 
 township, or place, and if no booth shall be allotted for the same, then, at any of tlie booths 
 of the same district : and in case any parish, township, or place shall happen not to be in- 
 cluded in any of the districts to be appointed, the votes in respect of property situate in any 
 parish, township, or place so omitted, shall be taken at the principal place of election for the 
 county or riding, parts or division of the county, as the case may be. 
 
 LXV. The sheriff shall have power to appoint deputies to preside, and clerks to take the 
 poll at the principal places of election, and also at the several places appointed for taking the 
 poll for any county, riding, parts, or division of a county, and the poll clerks employed at 
 those several places shall, at the close of each da)'s poll, enclose and seal their several books, 
 and shall publicly deliver them, so enclosed and sealed, to the sheriff, under-sheriff, or sheriff 
 deputy, presiding at such poll, who shall give a receipt for the same, and shall, on the com- 
 mencement of the poll on the second day, deliver them back, so enclosed and sealed, to the 
 persons from whom he shall have received them; and on the final close of the poll, every 
 such deputy, who shall have received any such poll books, shall forthwith deliver or transmit 
 the same, so enclosed and sealed, to the sheritl or his under-sheritt) who shall receive and 
 keep all the poll books unopened until the re-assembling of the court on the day next but one 
 after the close of the poll, unless such next day but one shall be Sunday, and then on the 
 Monday following, when he shall openly break the seals thereon, and cast up the number of 
 voles as they appear on the said several books, and shall opeidy declare tlie state of the poll, 
 and shall make proclamation of the member or members chosen, not later than two o'clock 
 in the afternoon of tlie said day. 
 
 LXVI. In all matters relative to the election of a knight or knights of the shire, to sei~ve 
 in any future parliament fcr any county, riding, parts, or division of a county, the slieriflof 
 
OF THE LAW OF ENGLAND. 351 
 
 the county, his under-sheriff, or any lawful deputy of such sheriff, shall have power to act in 
 all places having any exclusive jurisdiction or privilege whatsoever, in the same manner as 
 such sheriff, under sheriff, or deputy may act within any part of such sheriff's ordinary 
 jurisdiction. 
 
 LXVII. At every contested election of a member or members, to serve in any future par- 
 liament for any city or borough in England, except the borough of Monmouth, the poll 
 shall commence on the day fixed for the election, or on the day next following, or at the latest 
 on the third day, unless any of the said days shall be Saturday or Sunday, and then on the 
 Monda}' following, the particular day for the commencement of the poll to be fixed by the 
 returning officer : and such polling shall continue for two days onlj', such days being suc- 
 cessive da}s, (that is to say,) for seven hours on the first day of polling, and for eight 
 hours on the second day of polling : and that the poll shall, on no account, be kept open later 
 than four o'clock in the afternoon of such second day : any statute to the contrary notwith- 
 standing. 
 
 LXVII I. At every contested election for a member or members, to serve in any future 
 parliament for any city or borough in England, except the borough of Monmouth, there- 
 turning officer shall, if required thereto by, or on behalf of, any candidate on the day fixed 
 for the election, and if not required, may, if it shall appear to him expedient, cause to be 
 erected, for taking the poll at such election, different booths for different parishes, districts, 
 or parts of such city or borough, which booths may be situated either in one place or in 
 several places ; and shall be so divided and allotted into compartments, as to the returning 
 officer shall seem most convenient, so that no greater number than six hundred shall be 
 required to poll at any one compartment : and the returning officer shall appoint a clerk to 
 take the poll at each compartment, and shall cause to be affixed on the most conspicuous 
 parts of the said booths, the names of the several parishes, districts, and parts for which such 
 booth is respectively allotted : and no person shall be admitted to vote at any such election, 
 except at the booth allotted for the parish, district, or part wherein the property may be 
 situate in respect of which he claims to votej or in case he does not claim to vote in respect of 
 property, then wherein his place of abode as described in the register may be : but in case 
 no booth shall happen to be provided for any particular parish, district, or part, as aforesaid, 
 the votes of persons voting in respect of property situate in any parish, district, or part so 
 omitted, or having their place of abode therein, may be taken at any of the said booths, and 
 the votes of freemen, residing out of the limits of the city or borough, may be taken at any 
 of the said booths, and public notice of the situation, division, and allotment of the different 
 booths shall be given two days before the commencement of the poll, by the returning officer : 
 and in case the booths shall be situated in different places, the returning officer may appoint 
 a deputy to preside at each place : and at every such election, the poll clerks, at the close of 
 each day's poll, shall enclose and seal their several poll books, and shall publicly deliver them, 
 so enclosed and sealed, to the retuniing officer or his deputy, who shall give a receipt for the 
 same, and shall, on the commencement of the poll on the second day, deliver them back, so 
 enclosed and sealed, to the persons from whom he shall have received them: and every 
 deputy, so receiving any such poll books, on the final close of the poll, shall forthwith deliver 
 or transmit the same, so inclosed and sealed, to the returning officer, who shall receive and 
 keep all the poll books unopened until the following day, unless such day be Sunday, and then 
 till the Monday following, when he shall openly break the seals thereon, and cast up the 
 number of votes as they appear on the said several books, and shall openly declare the state 
 of the poll, and make proclamation of the member or members chosen, not later than two 
 o'clock in the afternoon of the said day : provided always, that the returning officer or his 
 lawful deputy may, if he think fit, declare the final state of the poll, and proceed to make 
 the return immediately after the^oU shall have been closed: provided also, that no nomina- 
 tion shall be made, or election holden, of any member for any city or borough in any church, 
 chapel, or other place of public worship. 
 
 LXIX. Provided always, that so far as relates to the several boroughs of Ncav Shoreham, 
 Cricklade, Aylesbury, and East Retford, as defined by this act, the said several boroughs 
 shall be divided into convenient districts for polling, and there shall be appointed in each 
 district, a convenient place for taking the poll at all elections of members, to serve in any 
 
352 RISE, PROGRESS, AND IMPROVEMENT 
 
 future parliament, for each of the said boroughs, which districts and places for taking the 
 poll shall be settled and appointed by an act to be passed in this present parliament. 
 
 LXX. Nothing in this act contained shall prevent any sheriff or other returning officer, 
 or the lawful deputy of any returning officer, from closing the poll previous to the time fixed 
 by this act, in any case when the same might have been lawfully closed before the passing of 
 this act: and when the proceedings at any. election shall be interrupted or obstructed by 
 any riot or open violence, the sherilf, or other returning officer, or the lawful deputy of any 
 returning officer, shall not, for such cause, finally close the poll, but, in case the proceedings 
 shall be so interrupted or obstructed at any particular polling place or places, shall adjourn 
 the poll at such place or places only until the following day, and, if necessary, shall further 
 adjourn the same until such interruption or obstruction shall have ceased, when the returning 
 officer or his deputy shall again proceed to take the poll at such place or places : and any day 
 whereon the poll shall have been so adjourned shall not, as to such place or places, be reckoned 
 one of the two days of polling at such election, within the meaning of this act : and wherever 
 the poll shall have been so adjourned by any deputy of any sherifl'or other returning officer, 
 such deputy shall forthwith give notice of such adjournment to the sheriff or retuniing officer, 
 who shall not finally declare the state of the poll, or make proclamation of the member or 
 members chosen, until the poll so adjourned, at such place or places as aforesaid, shall have 
 been finally closed, and delivered or transmitted to such sherifi' or other returning officer: 
 any thing hereinbefore contained to the contrary notwithstanding. 
 
 LXXI. From and after the end of this present parliament, all booths erected for the con- 
 venience of taking polls shall be erected at the joint and equal expense of the several candi- 
 dates, and the same shall be erected by contract with the candidates, if they shall think fit 
 to make such contract, or if they shall not make such contract, then the same shall be erected 
 by the sheriff or other returning officer, at the expense of the several candidates as aforesaid, 
 subject to such limitation as is hereinbefore next mentioned ; (that is to say,) that the expense 
 to be incurred for the booth or booths to be erected at the principal place of election for any 
 county, riding, parts, or division of a county, or at any of the polling places so to be appointed 
 as aforesaid, shall not exceed the sum of forty pounds, in respect of any one such principal 
 place of election, or any one such polling place : and that the expense to be incurred for any 
 booth or booths to be erected for any parish, district, or part of any city or borough shall not 
 exceed the sum of twentj -five pounds in respect of one such parish, district, or part ; and 
 that all deputies appointed by (he sheriff or other returning officer, shall be paid each two 
 guineas by the day, and all (;lerks employed in taking the poll, shall be paid each one guinea 
 by the day, at the expense of the candidates at such election : provided always, that if any 
 person shall be proposed without his consent, then the person so proposing him shall be liable 
 to defray his share of the s:iid expenses in the like manner as if he had been a candidate: 
 provided also, that the sheriff or returning officer may, if he shall thiidc fit, instead of erect- 
 ing such booth or booths as aforesaid, procure, or hire, and use any houses or other buildings 
 for the purpose of taking the poll therein, subject, alwajs, to the same regulations, provi- 
 sions, and limitations of expense as are hereinbefore mentioned with I'egard to booths for 
 taking the poll. 
 
 LXXII. The sherifi' or other returning officer shall, before the day fixed for the election, 
 cause to be made, for Ihe use of each booth or other polling place at such election, a true copy 
 of the register of voters, and shall, under his hand, certify every such copy to be true. 
 
 LXXIII. Every deputy of a sheriff or other returning officer, shall have the same power 
 of administei-ing the oaths and affirmations required bylaw, and of appointing commissionei^ 
 for administering such oaths and affirmations as may, bylaw, be administered by commis- 
 sioners, as the-sheriff or other returning officer has by virtue of this or any other act, and 
 subject to the same regulations and provisions in every other respect, as such sheriff or other 
 returning officer. 
 
 LXXIV. From and after the end of this present parliament, every person who shall 
 have a right to vote in the election of a member for the borough of Monmouth, in respect 
 of the towns of Newport or Usk, shall give his vote at Newport or Usk respectively, before 
 the deputy for each of such towns, whom tlie returning officer of the borough of Monmouth 
 is hereby authorized and rt quired to appoint ; and every pereon who sliall have a right to vote 
 
OF THE LAW OF ENGLAND. 353 
 
 in the election of a member for any shire-town or borough, in respect of any place named in the 
 iirst column of schedule E, shall give his vote at such place before the deputy for such place, 
 whom the returning officer of the shire-town or borough, is hereby authorized and required 
 to appoint : and any person who shall have a right to vote in the election of a member for 
 the borough composed of the towns of Swansea, Loughor, Neath, Aberavon, and Ken-fig, 
 shall give his vote at the town in respect of which he shall be entitled to vote, (that is to say,) 
 at Swansea, before the portreeve of Swansea, and at each of the other towns before the deputy 
 of such town, whom the said portreeve is hereby authorized and required to appoint : and at 
 every contested election for the borough of Monmouth, or for any shire, town, or borough 
 named in the second column of the said schedule E, or for the borough composed of the said 
 five towns, or for the borough of Brecon, the polling shall commence on tlie day next after 
 the day fixed for the respective election, unless such next day should be Saturday or Sunday, 
 and then on the Monday following, as well at Monmouth as at Newport and Usk respec- 
 tively, and as well at the shire-town or borough, as at each of the places sharing in the 
 election thex-ewith respectively, and as well at Swansea as at each of the four other towns 
 respectively: and such polling shall continue for two days only, such two days being succes- 
 sive days, (that is to say,) for seven hours on the first day of polling, and for eight hours on 
 tlie second day of polling, and that the poll shall, on no account, be kept open later than four 
 o'clock in the afternoon of such second day : and the returning officer of the borough of 
 Monmouth shall give to the deputies for Newport and Usk respectively, and the returning 
 officer of any shire-town or borough named in the second column of the said schedule E, 
 shall give to the deputy for each of the places sharing in the election for such shire-town or 
 borough, notice of the day fixed for such respective election, and shall, before the day fixed 
 for such respective election, cause to be made and to be delivered, to every such deputy, a 
 true copy of the register of voters for the borough of Monmouth, or for such shire-town or 
 borough, as the case may be, and shall, under his hand, certify every such copy to be true : 
 and the portreeve of the town of Swansea shall give notice of the day of election to the deputy 
 for each of the towns of Loughor, Neath, Aberavon, and Ken-fig, and shall, in like manner, 
 cause to be made and delivered to every such deputy, a true and certified copy of the re- 
 gister of voters for the borough composed of the said five towns ; and the rerpective deputies for 
 Newport and Usk, and for the respective places named in the first column of the said sche- 
 dule E, as well as for the towns of Loughor, Neath, Aberavon, and Ken-fig, shall respec- 
 tively take and conduct the poll, and deliver and transmit the poll books in the same maimer 
 as the deputies of the returning officers of the cities and boroughs in England are hereinbe- 
 fore directed to do, and shall have the same powers and perform the same duties, in every 
 respect, as are respectively conferred and imposed on the said deputies by this act : provided 
 always, that where there shall be a mayor, portreeve, or other chief municipal officer in any 
 town or place for which the returning officer or the portreeve of Swansea is required to ap- 
 point a deputy as aforesaid, sucli returning officer or the portreeve of Swansea, as the case 
 may be, is hereby required to appoint such chief municipal officer for the time being, to be 
 such deputy for such town or place. 
 
 LXX V. All laws, statutes, and usages now in force respecting the election of members to 
 serve in parliament, for that part of the united kingdom called England and Wales, shall be 
 and remain, and are hereby declared to be and remain, in full force, and shall apply to the 
 election of members to serve in parliament for all tlie counties, ridings, parts, and divisions 
 of counties, cities, and boroughs hereby empowered to return members, as fully and eflectu- 
 ally as if the same respectively had heretofore returned members, except so far as any of the 
 said laws, statutes, or usages are repealed or altered by this act, or are inconsistent with the 
 provisions thereof. 
 
 LXXVL If any sheriff; returning officer, barrister, overseer, or any person whatsoever, 
 shall wilfully contravene or disobey the provisions of this act or any of them, with respect to 
 any matter or thing which such sheriff, returning officer, barrister, overseer, or otlier person is 
 hereby required to do, he shall, for such his ofTence, be liable to be sued in an action of debt 
 in any of his majesty's courts of record at Westminster, for the penal sum of five hundred 
 pounds, and the jury before whom such action slaall be tried, may find their verdict for the 
 full sum of five hundred pounds, or for any less sum which the said juiy shall think it jast 
 
 2 Y 
 
354 RISE, PROGRESS, AND IMPROVEMENT 
 
 that he should pay for such his offence : and the defendant in such action, being convicted 
 shall pay such penal sum so awarded, with full costs of suit, to the party who may sue for 
 the same : provided always, that no such action shall be brought except by a person being 
 an elector, or claiming to be an elector, or a candidate, or a member actually returned or 
 other party aggrieved : provided also, that the remedy hereby given against the returning 
 officer shall not be construed to supersede any remedy or action against him, according to the 
 law now in force. 
 
 LXXVII. All writs to be issued for the election of Members, to serve in all future par- 
 liaments, and all mandates, precepts, instruments, proceedings, and notices consequent upon 
 such writs, shall be, and the same are, hereby authorized to be framed and expressed in such 
 manner and form, as may be necessary for the carrying the provisions of this act into 
 effect. 
 
 LXXVIII. Provided always, that nothing in this act contained shall extend to, or in any 
 wise affect, the election of members to serve in parliament, for the universities of Oxford or 
 Cambridge, or shall entitle any person to vote in the election of members to serve in parlia- 
 ment for the city of Oxford or town of Cambridge, in respect of the occupation of any 
 chambers or premises in any of the colleges or halls of the universities of Oxford or 
 Cambridge. 
 
 LXXIX. Throughout this act, wherever the words "city or borough," "cities or 
 boroughs," may occur, those words shall be construed to include, except there be something 
 in the subject or context manifestly repugnant to such construction, all towns corporate, 
 cinque ports, districts, or places within England and Wales which shall be entitled, after 
 this act shall have passed, to return a member or members to serve in parliament, other 
 than counties at large, and ridings, parts, and divisions of counties at large, and shall also 
 include the town of Berwick-upon-Tweed ; and the words " returning officer," shall apply 
 to every person or persons to whom, by virtue of his or their office, either under the pre- 
 sent act, or under any former law, custom, or statute, the execution of any writ or precept 
 doth or shall belong for the election of a member or members to serve in parliament, by 
 whatever name or title such person or persons maybe called; and the words "parish or 
 township," shall extend to every parish, township, ville, hamlet, district, or place maintain- 
 ing its own poor ; and the words " overseers of the poor," shall extend to all persons who, by 
 virtue of any office or appointment shall execute the duties of overseers of the poor, by 
 whatever name or title such persons may be called, and in whatsoever manner they may be 
 appointed, and that all matters by this act directed to be done by the overseers of a parish or 
 township may be lawfully done by the major part of such overseers, and that wherever any 
 notice is by this act required to be given to the overseers of any parish or to\vnship, it shall 
 be sufficient if such notice shall be delivered to any one of such overseers, or shall be left at 
 his place of abode, or at his office or other place for transacting parochial business, or shall 
 be sent by the post, addressed by a sufficient direction to the overseers of the particular parish 
 or township, or to any one of them, either by their or his christian name and surname, or by 
 their or his name of office ; and that all provisions in this act, relative to any matters to be 
 done by or with regard to justices of the peace for counties, or sessions of the peace for 
 CO vm ties, or clerks of the peace for counties, or treasurers of counties, shall extend to the 
 justices, sessions, clerks of the peace, and treasurers of the several ridings of Yorkshire, and 
 parts of Lincolnshire ; and that the clerk of the peace for the time being for the borough of 
 Newport, in the isle of Wight, shall, for the purposes of this act, be deemed and taken to 
 be the clerk of the peace for the county of the isle of Wight; and that all the said respective 
 justices, sessions, and clerks of the peace, shall have power to do the several matters required 
 by this act, as well within places of exclusive jurisdiction as without ; and that no misnomer, 
 or inaccurate description of any person or place named or described in any schedule to this 
 act annexed, or in any list or register of voters, or in any notice required by this act, shall 
 in anywise prevent or abridge the operation of this act, with respect to such person or place, 
 provided that sueh person or place shall be so designated in such schedule, list, register, or 
 notice, as to be commonly understood. 
 
 LXXX. And whereas it may happen that the act or acts for settling the boundaries of 
 citieSj boroughs, and other places, and the divisions of counties, as hereinbefore mentioned, 
 
OF THE LAW OF ENGLAND. 365 
 
 may not be passed within such time as will allow the several proYiaions of this act relative to 
 the lists of voters, within such respective boundaries and divisions, and the various notices 
 and proceedings preparatory to and connected with such lists, to be carried into eflFect within 
 the several periods in the present year, hereinbefore specified and limited in that behalf; 
 and it is, therefore, expedient in such event as aforesaid, to appoint other periods for the 
 purposes aforesaid ; be it therefore enacted, that if the act or acts for settling the boundaries 
 and divisions hereinbefore mentioned, shall not be passed before the twentieth day of June 
 in the present year, then, and in such case, the notice hereinbefore required to be given on 
 the said twentieth day of June, shall not be given on that day, and the lists of voters, and 
 the notices and other proceedings preparatory to and connected with such lists shall not be 
 made out, given, or had upon or within the several days or times in the present year, herein- 
 before specified in that behalf ; but if the act or acts for settling the boundaries of cities, 
 boroughs, and other places, and the divisions of counties, as hereinbefore mentioned, shall 
 be passed in the present year subsequently to the twentieth day of June, then, and in such 
 case, his majesty shall, by an order made with the advice of his most honourable privy 
 council, appoint in lieu of the day for the present year hereinbefore specified in that behalf, 
 a certain other day, before or upon which the respective lists of voters shall be made out, 
 and shall also appoint, in lieu of the several days and times for the present year, hereinbefore 
 specified or limited in that behalf, certain other days and times upon or within which all 
 notices, claims, objections, and other matters whatsoever by this act required to be given, 
 delivered, transmitted, done, or performed in relation to such lists, either before or aftei the 
 making out of such lists, shall be respectively given, delivered, transmitted, done, and per- 
 formed ; and his majesty shall also, by such order, appoint, in lieu of the period for the pre- 
 sent year, hereinbefore limited in that behalf, a certain other period for the revision of the 
 respective lists of voters by the barristers, and shall also appoint, within what time, in lieu 
 of the time for the present year, hereinbefore limited in that behalf, such respective lists 
 shall be copied out into books, and, when necessary, delivered to the sheriff" or under-sheriff", 
 and from what day, in lieu of the day for the present year hereinbefore specified in that be- 
 half, such respective books shall begin to be in force as the registers of voters; and his 
 majesty may also, by such order in council, appoint any days and times for doing the several 
 other matters required or authorized by this act, in lieu of the several days and times for the 
 present year hereinbefore specified ; and all days and times so appointed by his majesty, as 
 aforesaid, shall be deemed to be of the same force and efl'ect as if they had in every instance 
 been mentioned in this act, in lieu of the days and times for the present year hereinbefore 
 specified in that behalf: provided always, that nothing herein contained shall authorize his 
 majesty to appoint any days or times in lieu of the days and times mentioned in this act, 
 except for the purpose of carrying into effect the first registration of voters under this act-: 
 provided also, that no person shall be entitled to be included in such first registration of 
 voters, unless he would have been entitled on the last day of July in the present year to have 
 his name inserted in some list of voters, if such list had been made out on the said last day 
 of July. 
 
 LXXXI. Provided always, that if a dissolution of the present parliament shall take place 
 after the passing of this act, and after the passing of the act or acts for settling the boundaries 
 of cities, boroughs, and other places, and the divisions of counties, as hereinbefore men- 
 tioned, but before the day at and from which the registers of voters to be first made by virtue 
 of this act shall begin to be in force, in such case such persons only shall be entitled to vote 
 in the election of members to serve in a new parliament for any county, riding, parts, or 
 division of a county, or for any city or borough as would be entitled to be inserted in the re- 
 spective lists of voters for the same directed to be made under this act, if the day of election 
 had been the day for making out such respective lists; and such persons shall be entitled to 
 vote in such election, although they may not have been registered according to the provisions 
 of this act, any thing herein contained notwithstanding ; and the polling at such election for 
 any county, riding, parts, or division of a county, may be continued for fifteen days, and the 
 polling at such election for any city or borough may be continued for eight daj«, any thing 
 herein contained notwithstanding. 
 
 LXXXI I. Provided also, that if a dissolution of tlie present pailiament shall take plac^ 
 
350 
 
 RISE, PROGRESS, AND IMPROVEMENT 
 
 after the passing of this act, and before the passing of the act or acts for settling respectively 
 tlie boundaries of cities, boroughs, and other places, and the divisions of counties as herein- 
 before mentioned, then, and in such case, the election of members to serve in a new parlia- 
 ment shall, both as to the persons entitled to vote and otherwise, be regulated according to 
 the provisions of this act, save and except as hereinbefore mentioned ; (that is to say,) that 
 as to the several counties enumerated in schedule F, all persons entitled by virtue of this 
 act, in respect of property therein, to vote in the election of knights of the shire, sliall be en- 
 titled to vote for four knights of the shire to serve in such new parliament for each of the 
 said counties, and not for two knights to serve for any division of the said counties ; and that 
 as to the several boroughs enumerated in schedules C and D, each of the said boroughs shall, 
 for the purpose of electing a member or members to serve in such new parliament, be 
 deemed to include such places as are specified and described in conjunction with the name 
 of each of the said boroughs in schedule L ; and that as to the several cities and boroughs in 
 England and Wales, not included in schedule A, and now returning a member or members 
 to serve in parliament, and the places sharing in the election for such cities and boroughs, 
 each of such cities, boroughs, and places respectively, shall, for the purpose of electing a 
 member or members to serve in such new parliament as aforesaid, be deemed to be com- 
 prehended within the same limits as before the passing of this act, and not otherwise ; and 
 tliat no place named in the first column of schedule E, which before the passing of this act 
 did not share in the election of a member for any shire, town, or borough named in the 
 second column of the said schedule E, shall share in the election of a member for any shire, 
 town, or borough to serve in such new parliament, any thing hereinbefore contained to the 
 contrary notwithstjmding ; and that the borough composed of Swansea, Louglior, Neath, 
 Aberavon, and Ken-fig shall not return a member to serve in such new parliament, but 
 sliall, instead thereof, share in the election of a member to serve in such new parliament for 
 the borough of Cardiff, anything hereinbefore contained to the contrary notwithstanding; 
 and that in the event of such dissolution of parliament so taking place as last aforesaid, such 
 persons only shall be entitled to vote in the election of members to serve in such new par- 
 liament as aforesaid, for the counties, ridings, parts, cities, and boroughs, which, in such 
 event, shall return members to serve in such new parliament as would be entitled to be 
 inserted in the respective list of voters directed to be made under this act, if the day of 
 election had been the day for making out such respective lists; and such persons shall be 
 entitled to vote in such election, although they may not be registered according to the pro- 
 visions of this act, any thing hereinbefore contained to the contrary notwithstanding ; and 
 the polling for such election for any county, or for any riding of Yorkshire, or parts of Lin- 
 colnshire, may be continued for fifteen days, and the polling at such election for any city oe 
 borough may be continued for eight days, any thing hereinbefore contained to the contraiy 
 notwithstanding. 
 
 SCHEDULES TO WHICH THE FOREGOING ACT REFERS. 
 
 SCHEDULE A. 
 
 Boroughs. 
 
 County. 
 
 Borouglis. 
 
 County. 
 
 Old Sarum 
 
 Wiltshire 
 
 West Looe 
 
 Cornwall 
 
 Newtown 
 
 Isle of Wight 
 
 St Germains 
 
 Cornwall 
 
 St Michaels, or Mids- 
 
 
 Newport 
 
 Cornwall 
 
 hall 
 
 Cornwall 
 
 Blechingly 
 
 Surrey 
 
 Gatton 
 
 Surrey 
 
 Aldborough 
 Camelford 
 
 Yorkshire 
 
 Bramber 
 
 Sussex 
 
 Cornwall 
 
 Bossiney 
 
 Cornwall 
 
 Hindon 
 
 Wiltshire 
 
 Dumvich 
 
 Suflblk 
 
 East Looe 
 
 Cornwall 
 
 Ludgershall 
 
 Wiltshire 
 
 Corfe Castle 
 
 Dorsetshire 
 
 St Mawes 
 
 Cornwall 
 
 Great Bedwin 
 
 Wiltshire 
 
 Beeralston 
 
 Devonshire 
 
 Yarmouth 
 
 Hampshire 
 
OF THE LAW OF ENGLAND. 
 
 357 
 
 Boroughs, 
 
 County- 
 
 Boroughs. 
 
 County. 
 
 Queenborough 
 
 Kent 
 
 Plympton 
 
 Devonshire 
 
 CasUe Rising 
 
 Norfolk 
 
 Seaford 
 
 Sussex 
 
 East Grlnstead 
 
 Sussex 
 
 Heytesbury 
 
 Wiltshire 
 
 Higham Ferrers 
 
 Northamptonshire 
 
 Steyning 
 
 Sussex 
 
 Wendover 
 
 Buckinghamshire 
 
 Whitchurch 
 
 Hampshire 
 
 Weobly 
 
 Herefordshire 
 
 Wooton Basset 
 
 Wiltshire 
 
 Winchelsea 
 
 Sussex 
 
 Downton 
 
 Wiltshire 
 
 Trigony 
 
 Cornwall 
 
 Fowey 
 
 Cornwall 
 
 Haslemere 
 
 Surrey 
 
 Milboume Port 
 
 Somersetshire 
 
 Saltash 
 
 Cornwall 
 
 Aldburgh 
 
 Suffolk 
 
 Orford 
 
 Suffolk 
 
 Minehead 
 
 Somersetshire 
 
 Callington 
 
 Cornwall 
 
 Bishop's Castle 
 
 Shropshire 
 
 Newton 
 
 Lancashire 
 
 Okehampton 
 
 Devonshire 
 
 Ilchester 
 
 Somersetshire 
 
 Appleby 
 
 Westmoreland 
 
 Boroughbridge 
 
 Yorkshire 
 
 Lostwitheli 
 
 Cornwall 
 
 Stockbridge 
 
 Hampshire 
 
 Brackley 
 
 N or th am ptonshi re 
 
 New Romney 
 
 Kent 
 
 Amersham 
 
 Buckinghamshire 
 
 Hedon 
 
 Yorkshire 
 
 
 
 SCHEDULE B. 
 
 Boroughs. 
 
 County. 
 
 Boroughs. 
 
 County. 
 
 Petersfield 
 
 Hampshire 
 
 Reigate 
 
 Surrey 
 
 Ashburton 
 
 Devonshire 
 
 Hythe 
 
 Kent 
 
 Wcstbury 
 
 Suffolk 
 
 Droitwitch 
 
 Worcestershire 
 
 Wiltshire 
 
 Lyme Regis 
 
 Dorsetshire 
 
 Wareham 
 
 Doi-setshire 
 
 Launceston 
 
 Cornwall 
 
 Shaftesbury 
 
 Dorsetshire 
 
 Calne 
 
 Wiltshire 
 
 Thirsk 
 
 Yorkshire 
 
 Arundel 
 
 Sussex 
 
 Christchurch 
 
 Hampshire 
 
 St Ives 
 
 Cornwall 
 
 Horsham 
 
 Sussex 
 
 Rye 
 
 Sussex 
 
 Gi'eat Grimsby 
 
 Lincolnshire 
 
 Clitheroe 
 
 Lancashire 
 
 Midhurst 
 
 Sussex 
 
 Morpeth 
 
 Northumberland 
 
 Woodstock 
 
 Oxfordshire 
 
 Hilston 
 
 Cornwall 
 
 Wilton 
 
 Wiltshire 
 
 North Allerton 
 
 Yorkshire 
 
 Malmesbury 
 
 Wiltshire 
 
 Wallingford 
 
 Berkshire 
 
 Liskeard 
 
 Cornwall 
 
 Dartmouth 
 
 Devonshire 
 
 SCHEDULE C. 
 
 Principal places to be 
 Boroughs. 
 
 Counties. 
 
 Returning Officers. 
 
 Manchester 
 
 Lancashire' 
 
 The boroughreeve and constables of 
 Manchester 
 
 Birmingham 
 
 Warwickshire 
 
 The two bailiffs of Birmingham 
 
 Leeds 
 
 Yorkshire 
 
 The mayor of Leeds 
 
 Greenwich 
 
 Kent 
 
 
 Sheffield 
 
 Yorkshire 
 
 The master cutler 
 
 Sunderland 
 
 Durham 
 
 
 Devonport 
 
 Devonshire 
 
 
 Wolverhampton 
 
 Staffordshire 
 
 Constable of the manor of the deanery 
 of Wolverhampton 
 
 Tower Hamlets 
 
 Middlesex 
 
 
 Finsbury 
 
 Middlesex 
 
 
 Mary-le-bone 
 
 Middlesex 
 
 
 Lambeth 
 Bolton 
 
 Surrey 
 Lancashire 
 
 The boroughreeves of Great and Little 
 Bolton 
 
 Bradford 
 
 Yorkshire 
 
 
3^8 
 
 RISE, PROGRESS, AND IMPROVEMENT 
 
 Principal places to be 
 Boroughs. 
 
 Counties, 
 
 Returning Officers. 
 
 Blackburn 
 
 Brighton 
 
 Halifax 
 
 Macclesfield 
 
 Oldham 
 
 Stockport 
 
 Stoke- upon- Trent 
 
 Stroud 
 
 Lancashire 
 
 Sussex 
 
 Yorkshire 
 
 Cheshire 
 
 Lancashire 
 
 Cheshire 
 
 Staffordshire 
 
 Gloucestershire 
 
 The mayor of Macclesfield 
 The mayor of Stockport 
 
 
 SCHEDULE D. 
 
 Principal places to be 
 Boroughs. 
 
 Counties. 
 
 Returning Officers. 
 
 Ashton-under-Line 
 
 Lancashire 
 
 Mayor of Ashton-under-Line 
 
 Bury 
 
 Lancashire 
 
 
 Chatham 
 
 Kent 
 
 
 Cheltenham 
 
 Gloucestershire 
 
 
 Dudley 
 
 Worcestershire 
 
 
 Frome 
 
 Somersetshire 
 
 
 Gateshead 
 
 Durham 
 
 
 Hudderefield 
 
 Yorkshire 
 
 
 Kidderminster 
 
 Worcestershire 
 
 The high bailiff of Kidderminster 
 
 Kendal 
 
 Westmoreland 
 
 The mayor of Kendal 
 
 Rochdale 
 
 Lancashire 
 
 
 Sal ford 
 
 Lancashire 
 
 The boroughreeve of Salford 
 
 South Shields 
 
 Durham 
 
 
 Tynemouth 
 Wakefield 
 
 Northumberland 
 
 
 Yorkshire 
 
 
 Wallsall 
 
 Staffordshire 
 
 The mayor of Wallsall 
 
 Warrington 
 
 Lancashire 
 
 
 Whitby 
 
 Yorkshire 
 
 
 Whitehaven 
 
 Cumberland 
 
 
 Merthvr Tydvil 
 
 Glamorganshire 
 
 
 SCHEDULE E. 
 
 Places sharing in the election of Members. 
 
 Shire-towns, or princi- 
 pal boroughs. 
 
 County. 
 
 Amlwch 
 
 "^ 
 
 
 
 
 Holyhead 
 
 
 sharing with 
 
 Beaumaris 
 
 Anglesey 
 
 Lllangefni 
 
 > 
 
 
 
 
 Aberystwith 
 
 ~i 
 
 
 
 
 Lampeter 
 
 5- 
 
 sharing with 
 
 Cardigan 
 
 
 Ad par 
 
 > 
 
 
 
 
 Llanelly 
 
 
 sharing with 
 
 Caermarthen 
 
 Caermarthenshire 
 
 Pwlheli 
 
 \ 
 
 
 
 
 Nevin 
 
 1 
 
 
 
 
 Conway 
 
 y 
 
 sharing with 
 
 Caernarvon 
 
 Caernarvonshire 
 
 Bangor 
 
 J 
 
 
 
 
 Criccieth 
 
 J 
 
 
 
 
 Ruthin 
 
 J 
 
 
 
 
 Holt 
 
 4 
 
 sharing with 
 
 Denbigh 
 
 Denbighshire 
 
 Town of Wrexham 
 
 3 
 
 
 
 
 Rhyddlan 
 
 1 
 
 
 
 
 Overton 
 
 
 
 
 
 Caerwis 
 
 
 
 
 
 Caergwrby 
 
 
 sharing with 
 
 Hint 
 
 Flintshire 
 
 St Asaph 
 
 1 
 
 
 
 1 
 
 Holywell 
 
 1 
 
 
 
 
 Mold 
 
 J 
 
 
 
 
 Cowbridge 
 Llantrissent 
 
 i 
 
 sharing with 
 
 Cardiff 
 
 Glamorganshire 
 
OF THE LAW OF ENGLAND. 
 
 359 
 
 Places sharing in the election of Members. 
 
 Shire, town, or princi- 
 pal borough. 
 
 County. 
 
 Llanidloes -n 
 
 Welsh Pool 1 
 
 Machynllith > sharing with 
 
 Llanfyllin | 
 
 Newtown -^ 
 
 Montgomery 
 Haverford west 
 
 Montgomeryshire 
 
 Pembrokeshire 
 Pembrokeshire 
 
 Radnorshire 
 
 Tenby ^ 
 
 Wiston J ■ sharing with 
 
 Town of Milford 3 
 
 Knighton -v 
 
 Rhayder 1 
 
 Kevinleece > sharing with 
 
 Knucklas \ 
 
 Town of Presteigne -' 
 
 Pembroke 
 Radnor 
 
 SCHEDULE E 2. 
 
 Places sharing in the election of Members. 
 
 Places therein from which the seven miles 
 are to be calculated. 
 
 Newport 
 
 The market-place 
 The town-hall 
 
 Usk 
 
 Aberystwith 
 
 The bridge over the Rheidal 
 
 Lampeter 
 
 The parish church 
 
 Ad par 
 Pwlheli 
 
 Bridge over the Teivi 
 
 The guildhall 
 
 Nevin 
 
 The parish church 
 
 Conway 
 
 The parish church 
 
 Criccieth 
 
 The castle 
 
 Ruthin 
 
 The parish church called St Peter's 
 
 Holt 
 
 The parish church 
 
 Rhyddlan 
 
 The parish church 
 
 Overton 
 
 The parish church 
 
 Caerwis 
 
 The parish church 
 
 Caergwrby 
 
 The parish church of Hope 
 
 Cowbridge 
 
 The town-hall 
 
 Llantrissent 
 
 The town-hall 
 
 Tenby 
 
 The parish church 
 
 Wiston 
 
 The parish church 
 
 Knighton 
 
 The parish church 
 
 Rhayder 
 
 The market-place 
 
 Kevinleece 
 
 The parish church 
 
 Knucklas 
 
 The site of the ancient castle of Cnweglas 
 
 Swansea 
 
 The town-hall 
 
 Loughor 
 
 The parish church 
 
 Neath 
 
 The town-hall 
 
 Aberavon 
 
 The bridge over the Avon 
 
 Ken-fig 
 
 The parish church of Lower Ken-fig 
 
 SCHEDULE F. 
 
 COUNTIES TO BE DIVIDED. 
 
 Cheshire 
 
 Gloucestershire 
 
 Northumberland 
 
 Suffolk 
 
 Cornwall 
 
 Kent 
 
 Northamptonshire 
 
 Surrey 
 
 Cumberland 
 
 Hampshire 
 
 Nottinghamshire 
 
 Sussex 
 
 Derbyshire 
 
 Lancashire 
 
 Shropshire 
 
 Warwickshire 
 
 Devonshire 
 
 Leicestershire 
 
 Somersetshire 
 
 Wiltshire 
 
 Durham 
 
 Norfolk 
 
 Staflbrdshire 
 
 Worcestershire 
 
 Essex 
 
 
 
 
360 
 
 RISE, PROGRESS, AND IMPROVEMENT 
 
 SCHEDULE F 2. 
 
 COUNTIES TO RETURN THREE MEMBERS EACH. 
 
 Berkshire 
 
 Buckinghamshire 
 
 Cambridgeshire 
 
 Dorsetshire 
 Herefordshire 
 
 Hertfordshire 
 Oxfordshire 
 
 SCHEDULE G. 
 
 Cities and towns and counties thereof. 
 
 Counties at large, in which cities and towns 
 and counties thereof are to be included. 
 
 Caermailhen 
 
 Caer mar thenshi re 
 
 Canterbury 
 
 Kent 
 
 Chester 
 
 Cheshire 
 
 Coventry 
 
 Warwickshire 
 
 Gloucester 
 
 Gloucestershire 
 
 Kingston-upon-Huli 
 
 East Riding of Yorkshire 
 
 Lincoln 
 
 Ports of Lindesey, Lincolnshire 
 
 London 
 
 Middlesex 
 
 Newcastle-upon-Tyne 
 
 Northumberland 
 
 Poole 
 
 Dorsetshire 
 
 Worcester 
 
 Worcestershire 
 
 York and Ainsty 
 
 North Riding of Yorkshire 
 
 Southampton 
 
 Hampshire 
 
 SCHEDULE H. 
 FORMS of LISTS and NOTICES applicable to counties. 
 No. I. Notice of the making out of the lists to be given by the overseers. 
 We hereby give notice, that we shall, on or before the last day of July in this year, make 
 out a list of all persons entitled to vote in the election of a knight or knights of the shire for 
 the county of [or for the riding, parts, or division of the 
 
 county of as the case may be,] in respect of property situate wholly or in 
 
 part within this parish [or township ; and all persons so entitled, are hereby required to de- 
 liver or transmit to us, on or before the twentieth day of July in this year, a claim in writ- 
 ing, containing their christian name and surname, their place of abode, the nature of tlieir 
 qualification, and the name of the street, lane, or other like place wherein the property, in 
 respect of which they claim tO vote, is situated ; and if the property be not situated in any 
 street, lane, or other like place, then such claim must describe the property by the name by 
 which it is usually known, or by the name of the tenant occupying the same ; and each of 
 such persons so claiming, must also, at the same time, pay to us the sum of one shilling. 
 Persons omitting to deliver or transmit such claim, or to make such payment, will be ex- 
 cluded from the register of voters for this county, [or riding, parts, or division, as the case 
 may be.] [In subsequent years, after one thousand eight hundred and thirty -two, add the 
 following words, " But persons whose names are now on the register are not required to make 
 a fresh claim, so long as they retain the same qualification, and continue in the same place 
 of alKxJe as described in the register."] 
 
 (Signed) A. B.") Overseers of the 
 C. D. >■ township or 
 E. F.J parish. 
 
 No. II. Notice of claim to be given to the overseers. 
 
 I hereby give you noUce, that I claim to be inserted in the list of voters for the county of 
 [or for the riding, parts, or division of the county of 
 
 as the case may be], and that the particulars of my place of abode 
 and qualification are stated below. Dated the day of 
 
 in the year . (Signed) JOHN ADAMS. 
 
 Place of abode, Cheapside, London. 
 Nature of qualification, freehold house, [or warehouse, stable, land, field, annuity, rent 
 charge, &c, as the case may be, giving such a description of the property as may serve to 
 
OF THE LAW OF ENGLAND. 
 
 361 
 
 identify it.] When situate in this parish [or township] King Street. If the property be not 
 situate in any street, lane, or other like place, then say, " name of the property, Highfield 
 farm," or "name of the occupying tenant, John Edwards." 
 
 No. III. 
 County of to wit, [or ^ The LI ST of persons entitled to vote in the 
 
 riding, parts, or division of the county of J election of a knight [or knights] of the shire 
 as the case may he.1 ^ ^^ the county of [or for 
 
 the riding, parts, or division of a county of as the case may he], 
 
 in respect of property situate within the parish of [or township, as the 
 
 case may be. ] 
 
 Christian name and 
 
 surname of each voter 
 
 at full length. 
 
 Place of abode. 
 
 Nature of qualification. 
 
 Street, lane, or other 
 like place in this parish 
 [or township] where 
 the property is situate, 
 or name of the pro- 
 perty, or name of the 
 tenant. 
 
 Adams, John 
 Alley, James 
 
 Ball, William 
 
 Boyce, Henry 
 
 Cheapside, London 
 
 LongJane in this 
 parish 
 
 Market Street, Lan- 
 caster 
 
 Church Street in 
 this parish 
 
 Freehold house 
 Copyhold field 
 
 Lease of warehouse 
 
 for years 
 Fifty acres of land 
 
 as occupier 
 
 King Street 
 John Edwards, ten- 
 ant 
 Duke Street 
 
 Highfield farm 
 
 (Signed) A. B.l Overseers of 
 C. D. > parish or 
 E. F.J township. 
 
 No, IV. NOTICE of OBJECTION to be given to the overseers. 
 
 To the overseers of the parish of - [or township, as the case may be. 
 
 I hereby give you notice, that I object to the name of William Ball being retained in the 
 list of voters for the county of [or for the riding, parts, or 
 
 division of the county of ]. Dated the day of 
 
 in the year . (Signed) A. B. of [place of abode]. 
 
 No. V. NOTICE of OBJECTION to parties inserted in the list. 
 To Mr William Ball. 
 
 I hereby give you notice, that I object to 3 our name being retained in the list of voters 
 for the county of [or for the riding, parts, or division of the 
 
 county of ], and that you will be required to prove your qualification at 
 
 the time of the revising of the said list. Dated the day of 
 
 in the year . (Signed) A. B. [jjlace of abode]. 
 
 No. VI. LIST of PERSONS objected to, to be published by the overseers. 
 
 The following persons have been objected to, as not being entitled to have their names re- 
 tained in the list of voters for the county of [or for the riding, 
 parts, or division of the county of ]. 
 
 Christian name and 
 surname of each per- 
 son objected to. 
 
 Place of abode. 
 
 Nature of the supposed 
 qualification. 
 
 Street, lane, or other 
 like place in this parish 
 
 [or township] where 
 the property is situate, 
 
 or name of the pro- 
 perty, or name of the 
 tenant. 
 
 Alley, James 
 Ball, William 
 
 Longlane in this 
 parish 
 
 Market Street, Lan- 
 caster 
 
 Copyhold field 
 
 Lease of warehouse 
 for years 
 
 John Edwards, ten- 
 ant 
 Duke Street 
 
 1 
 
 (Signed) 
 
 2 Z 
 
 B.) Overseers of the parish 
 of [or t(nvn- 
 
 ship, as the case may be]. 
 
 :. D. J. 
 
 i. F.3 
 
362 
 
 RISE, PROGRESS, AND IMPROVEMENT 
 
 SCHEDULE I. 
 
 FORMS of LISTS and NOTICES applicable to cities and boroughs. 
 
 No. I. The LIST of persons entitled to vote in the election of a member [or members] 
 for the city [or borough] of in respect of property occupied within the parish 
 
 [or township] of by virtue of an act passed in the second year of the reign 
 
 of king "William the Fourth, intituled, " An act to amend the representation of tlie people 
 in England and Wales." 
 
 Christian name and surname of 
 each voter at full length. 
 
 Nature of qualification. 
 
 Street, lane, or other place in 
 
 this parish where the property 
 
 is situate. 
 
 Ashton, John 
 Atkinson, William 
 Bates, Thomas 
 Bull, Thomas 
 
 House 
 Warehouse 
 Shop 
 Counting-house 
 
 Church Street 
 
 Bolt Court, Fleet Street 
 
 Castle Street 
 
 Lord Street 
 
 (Signed) A. B.") Overseers of the 
 C. D. J- said parish [or 
 E. F.J township]. 
 
 No. II. The LIST of all persons (not being freemen) entitled to vote in the election of 
 a member [or members] for the city [or borough] of in respect of any 
 
 rights other than those conferred by an act passed in the second year of king William the 
 Fourth, intituled, " An act to amend the representation of the people in England and 
 Wales." 
 
 Christian name and snmame of 
 each voter at full length. 
 
 Nature of qualification. 
 
 Street, lane, or other place in 
 
 this parish where tlie property 
 
 is situate. 
 
 // the right of voting floes not 
 
 depend on property, then state 
 
 the place of abode. 
 
 \ 
 
 
 
 (Signed) A. B."^ Overseers of the parish of 
 
 C. D. > [or township] within the said city 
 E. F. 3 [or borough]. 
 
 No. III. The LIST of the freemen of the city [or borough] of [or of 
 
 being a place sharing in the election with the city [or borough] of 
 \ entitled to vote in the election of a member [or members] for 
 the said city [or 
 
 Christian name and surname of each freeman 
 at full length. 
 
 Place of his abode. 
 
 • 
 
 
 (Signed) 
 
 - D V Town clerk of the city 
 3 [or borough or place]. 
 
OF THE LAW OF ENGLAND. 
 
 363 
 
 No. IV. NOTICE of CLAIM. 
 
 To the overseers of the parish [or township] of or to the town clerk of 
 
 the city [or borough] of or otherwise, as the case may be]. 
 
 I hereby give you notice, that I claim to have my name inserted in the list made by you 
 of persons entitled to vote in the election of a member [or members] for the city [or borough"! 
 of and that my qualification consists of a house in Duke Street in your 
 
 parish, or otherwise, [as the case may be] ; [and in case of a freeman, say, and that my 
 qualification is as a freeman of and that I reside in Lord Street in 
 
 this city or borough]. Dated the day of one thousand eight 
 
 hundred and thirty 
 
 (Signed) JOHN ALLEN, [place of abode]. 
 
 No. V. NOTICE of OBJECTION. 
 
 To the overseers of the parish [or township] of [or to the town clerk 
 
 of the city [or borough] of or otherwise, as the case viay be]. 
 
 I hereby give you notice, that I object to the name of Thomas Bates being retained in the 
 list of persons entitled to vote in the election of a memiier [or members] for the city [or 
 borough] of and that I shall bring forward such objection at the time of 
 
 the revising of such list. Dated the day of in the year 
 
 (Signed) A. B. [place of abode]. 
 
 No. VI. LIST of CLAIMANTS to be published by the overseers. 
 
 The following persons claim to have their names inserted in the list of persons entitled to 
 vote in the election of a member [or members] for the city [or borough] of 
 
 Christian name and surname of 
 each claimant at full length. 
 
 Nature of qualification. 
 
 Street, lane, or other place in 
 
 this parish where the pro- 
 
 perty is situate. 
 
 If the right does not depend on 
 
 _ property, ttate the place of 
 
 abode. 
 
 Allen, John 
 
 House 
 
 Duke Stre^et 
 
 (Signed) 
 
 . D.f O 
 1. F.5 
 
 verseers of, &c. 
 
 No. VII. LIST of PERSONS objected to, to be published by the overseers. 
 
 The following persons have been objected to, as not being entitled to have their names 
 retained in the list of persons qualified to vote in the election of a member [or members] for 
 the city [or borough] of 
 
 Christian name and surname of 
 each person objected to. 
 
 Nature of the supposed quali. 
 ficatioQ. 
 
 Street, lane, or other place iu 
 this parish where the- pro- 
 perty is situate. 
 If the rtght does not depend on 
 property, state the place of 
 abode. 
 
 Bates, Thomas 
 
 Shop 
 
 CasUe Street 
 
 (Signed) A. B."^ 
 
 C. D. > Overseers of, &c 
 E. F.3 
 No. VIII. LIST of CLAIMANTS to be published by the town clerks. 
 The following persons claim to have their names inserted in the list of freemen of the 
 city [or borough] of [or of being a place sharing 
 
 in the election with the city [or borough] of ], entitled to vote in the 
 
 eiecUon of a member [or members] for the said city [or borough]. 
 
364 
 
 RISE, PROGRESS, AND IMPROVEMENT 
 
 Christian name and surname of each claimant 
 at full length. 
 
 Place of his abode. 
 
 
 - 
 
 (Signed) 
 
 A. B 
 
 }To\vn clerk of the said city 
 [or borough or place]. 
 
 No. IX. The LIST of persons objected to, to be published by the town cLtRKS. 
 
 The following persons have been objected to,^ having no right to be retained on the list 
 of the freemen of the city [or borough] of [or of being 
 
 a place sharing in the election with the city [or borough] of ], entitled 
 
 to vote in the election of a member [or members] for the said [city or borough]. 
 
 Christian name and surname of each person 
 objected to. 
 
 Place of his abode. 
 
 
 
 (Signed) A. bJ^^T^'u*"'^ f the said city 
 ^ ° ' 5 [or borough or place]. 
 
 SCHEDULE K.* 
 
 A LIST of such of the freemen of London as are liverymen of the company of 
 entitled to vote in the election of members for the city of London. 
 
 Christian name and surname of the voter at 
 
 full length. 
 
 Street, lane, or other description of his place 
 of abode. 
 
 • 
 
 
 (Signed) A. B., Clerk. 
 
 No. I. NOTICE of CLAIM to be given to the returning officer or officers of the 
 CITY of London, and to the clerks of the respective livery companies. 
 
 To the returning officer or officers of the city of London, [or to the clerk of the company 
 of _ ]. 
 
 I hereby give you notice, that I claim to have my name inserted in the list made by the 
 clerk of the company of [or in case of notice to the clerk ^ say, made by 
 
 you,] of the liverymen of the said company, [or in case of notice to the clerk, say, of the livery- 
 men of the company of ], entitled to vote in the election of members for 
 the city of London. Dated the day of 
 
 u ^f Place of abode. 
 
 ' ' "'^Name of Compan}]. 
 
 No. II. LIST of CLAIMANTS to be published by the returning officer or officers oi" the 
 CITY of London 
 
OF THE LAW OF ENGLAND. 
 
 36: 
 
 The following persons claim to have their names inserted in the list of persons entitled to 
 vote as freemen of the city of London, and liverymen of the several companies, being speci- 
 ^ ' - the election of members for the city of London. 
 
 fied 
 
 Christian uaine and surname of clairasmts at full 
 length. 
 
 Place of abode. 
 
 
 
 No. IIL MOTICE of OBJECTION to parties inserted in the list of the livery. 
 
 To Mr William Baker, 
 I hereby give you notice, that I object to your name being retained in the list of persons 
 entitled to vote as freemen of the city of London, and liverymen of the company of 
 
 in the election of members for the said cit}', and that I shall bring forward such 
 objection at the time of revising the said lists. Dated the day of 
 
 (Signed) A. B., [Place of abode]. 
 
 SCHEDULE L. 
 
 Borouglis. 
 
 Ashton-under-Line, 
 
 Birmingham. 
 
 Blackburn. 
 ' Bolton. 
 
 Bradford. 
 Brighthelmston, 
 Bury. 
 Ciiatham. 
 
 Cheltenham. 
 Davenport. 
 Dudley. 
 Finsbury. 
 
 Frome. 
 
 Gateshead. 
 
 Temporary Contents, and Boundary. 
 
 The division of the parish of Ashton-under-Line, called the town's 
 division. 
 
 Parishes of Birmingham and Edgbarton, and townships of 
 Bordesley, L-'ritend, and Duddiston, with Nechels. 
 
 Township of Blackburn. 
 
 Townships of Great Bolton, Haulgh, and Little Bolton, except 
 the detached part of the township of Little Bolton, which lies to the 
 north of the tovyn of Bolton. 
 
 Township of Bradford. 
 
 Parishes of Brighthelmston and Hore. 
 
 Township of Bury. 
 
 From the easternmost point at which the boundary of the city of 
 Rochester meets the right bank of the river Medway, southward 
 along the boundary of the city of Rochester to the boundary stone of 
 the said city marked 5 ; thence in a straight line to the windmill in 
 the parish of Chatham, on the top of Chatham hill ; thence in a 
 straight line to the oil windmill in the parish of Gillingham, be- 
 tween the village of Gillingham and the fortifications ; thence in a 
 straight line through Gillingham fort to the right bank of the river 
 Medway ; thence along the right bank of the river Medway to the 
 point first described. 
 
 Parish of Cheltenham. 
 
 Parish of Stoke Damervill; and township of east Stonehouse, 
 
 Parish of Dudley. 
 
 Parishes of St Giles in the Fields; St George, Bloomsbury; St 
 George the Martyr; St Andrew above bars; St Luke-, St! 
 Sepulchres, except so much as is in the city of London ; St James, j 
 Clerkenwell, except so much as is locally in the parish of Hornsey ; 
 ecclesiastical districts of Trinity ; St Paul and St Mary, in the parish 
 of St Mary, Islington; Liberties of SaflVon Hill, Hatton Garden, j 
 and Ely Rents ; Ely Place ; the Rolls ; Glasshouse Yard ; precinct | 
 of the Charter house ; Lincoln's Inn ; Gray's Inn ; so much of Fur- 
 nival's Inn and Staples Inn as is not within the city of London. 
 
 Town of Frome, as within the limits now assigned to the town of 
 Frome by the trustees, under the provisions of an act passed in the 
 first and second year of his present majesty, intituled " An act for 
 better repaiiing and improving several roads leaduig to and from 
 the town of Frome, in the county of Somerset." 
 
 Parish of Gateshead. 
 
366 
 
 RISE, PROGRESS, AND IMPROVEMENT 
 
 Boroughs. 
 
 Greenwich. 
 
 Halifax. 
 Hudders field. 
 Kendal. 
 
 Kidderminster. 
 Lambeth. 
 
 Leeds. 
 
 Macclesfield. 
 
 Manchester. 
 
 Mary-le-bone. 
 
 Merthyr Tydvil. 
 
 Oldham. 
 
 Rochdale. 
 
 Salford. 
 Sheffield. 
 
 South Shields. 
 
 Stockport. 
 
 Stoke- upon- Trent. 
 
 Stroud. 
 
 Sunderland. 
 
 Tower Hamlets. 
 
 Tynemouth. 
 
 Wakefield. 
 Walsall. 
 
 Warrington. 
 Whitehaven. 
 Whitby. 
 Wolverhampton. 
 
 Temporary Contents, and Boundary. 
 
 Parishes of St Paul and St Nicolas, Deptford, and so much of the 
 parishes of Greenwich, Charlton, and Woolwich, as lie between the 
 Thames and the Dover road. 
 
 Township of Halifax. 
 
 Township of Huddersfield. 
 
 Townships of Kendal and Kirkland, all such parts of the township 
 of Nethergaveship as adjoin the township of Kendal. 
 
 Borough of Kidderminster. 
 
 Parishes of St Mary, Newington; St Giles, Cumberwell, except 
 the manor and hamlet of Dulwich ; precinct of the Palace ; and so 
 much of the parish of Lambeth as is north of the ecclesiastical 
 division of Brixton. 
 
 Borough of Leeds. 
 
 Borough of Macclesfield. 
 
 Townships of Manchester, Chorlton Row, Ardwich, Hulme, 
 Beswick, Chatham, Bradford, Newton, and Harpur Hey. 
 
 Parishes of St Mary-le-bone and Paddington, and so much of the 
 parish of St Pancras as is south of the Regent's Canal. 
 
 Parishes of-Merthyr Tydvil and Alerdwn. 
 
 Township of Oldham. 
 
 Town of Rochdale, aswitliin the provisions of an act passed in the 
 sixth year of his late majesty, intituled " An act for lighting and 
 regulating the town of Rochdale, in the county palatine of Lancas- 
 ter." 
 
 Townships of Salford, Pendleton, and Broughton. 
 
 Townships of Sheffield, AtterclifTe-cum-Darnall, Brightside, 
 Burlow, and Nether Hallam. 
 
 Townships of South Shields and Westoe. 
 
 Borough of Stockport •, liamlets of Bricksway and Edgeley. 
 
 Townships of Tunstall, Barslem, Hanley, Shelton, PenkhuU 
 with Boothen, Lane End, Long^on, Fenton Vivian, Fenton Cul- 
 vert, hamlet of Sneyd, and ville of Rushton Grange. 
 
 Parishes of Stroud, Bisley, Painswick, Pitchcomb, Randwick, 
 Stonehouse, Eastington, Leonard Stanlej-, except Lorridges farm; 
 King's Stanley, Rodborough, . Minchinhampton, Woodchester, 
 Avening, Horsley. 
 
 Parish of Sunderland ; townships of Bishop Wearmouth, Bishop 
 Wearmouth Panns, Monk Wearmouth, Monk Wearmouth Shore, 
 and Southwick. 
 
 Liberties of the Tower, and tower division of Ossulston Hundred, I 
 except the parishes of St John, Hackney, St Mary Stratford-le- 
 Bow, and St Leonard Bromley. 
 
 Townships of Tynemouth, North Shields, Chirton, Preston, and 
 CuUercoats. 
 
 Township of Wakefield. 
 
 Borough of Walsall, except the parts detached from the borough 
 of Walsall. ^ ^ 
 
 Township of Warrington. 
 
 Township of Whitehaven. 
 
 Township of Whitby. 
 
 Townships of Wolverhampton, Bilston, W^idnesfield, and Willen- 
 hall, and parish of Sedgeley. 
 
 Soon after the act to amend the representation of the people in England 
 and Wales received the royal assent, a bill was introduced to amend tlie 
 representation of the people of Scotland, which finally passed, and re- 
 ceived its completion by the king, on the 17th July, 1832. Since the 
 union of the two kingdoms, when the representation of the kingdom of 
 Scotland was settled, as it was supposed at that time definitively, the pri- 
 vilege of electing the members of parliament was exclusively confined to 
 the magistrates and members of the town councils of the different burghs, 
 
OF THE LAW OF ENGLAND. 367 
 
 and the freeholders of the counties. When the system of burgh election 
 was instituted, the artificers belonging to the seven incorporated trades 
 each chose a representative, as a burgh councillor, who were sup- 
 posed to represent the great mass of the people, and the provost and 
 baillies the upper classes, in these burghs ; by which means it was in- 
 tended that these delegates of the people should elect a member to serve 
 in parliament, agreeable to the wishes of their own constituents. From 
 the change that took place in the nature of society, the civic councillors 
 ceased to be the representatives of any class of their fellow townsmen 
 but the members of their own incorporation, who were comparatively 
 few in number ; and, consequently, their election of members of parlia- 
 ment was less the act of the people than of these corporations. The new 
 act, however, set aside the powers of the corporations, and conferred the 
 elective franchise in the burghs on every male of full age, not legally in- 
 capacitated, who pays a rent of £10, and has qualified, by paying the 
 assessed taxes on or before the 20th of July in all future years. 
 
 AN ACT TO AMEND THE REPRESENTATION OF THE PEOPLE 
 IN SCOTLAND. 
 
 Whereas the laws which regulate the election of members to serve in the commons 
 house of parliament for Scotland are defective, whereby great inconveniences and abuses 
 have been occasioned: and whereas it is expedient, and would be for the evident utility of 
 the subjects within Scotland, that those defects should be remedied, and especially that mem- 
 bers should be provided for places hitherto unrepresented, and the right of election ex- 
 tended to persons of property and intelligence, and that the mode of conducting elections 
 sliould be better regulated and ordered : be it therefore enacted by the king's most excellait 
 majesty, by, and with the advice and consent of the lords spiritual and temporal, and com- 
 mons, in this present parliament assembled, and by the authority of the same, that from 
 and after the end of this present parliament, and in all future parliaments to be assembled, 
 there shall be fifty-three representatives returned for Scotland to the commons house of par- 
 liament, of whom thirty shall be for the several or conjoined shires or stewartries hereinafter 
 enumerated, and twenty-three for the several cities, burghs, and towns, or districts of cities, 
 burghs, and towns, hereinafter enumerated or described. 
 
 II. And be it enacted, that after the end of this present parliament , the burghs of Peebles 
 and Selkirk shall no longer form parts of the district to which they now belong, or be en- 
 titled to contribute with any other burghs in the election of any member of parliament, but 
 shall, in the matter of elections, be held to be parts of the counties of Peebles and Selkirk 
 respectively ; and in like manner that the burgh of Rothesay, in the county of Bute, shall 
 no longer form part of the district to which it now belongs, but be held, in the matter of 
 elections, to be part of the county of Bute. 
 
 III. Of the thirty members hereafter to be returned to parliament by the separate or 
 combined shires of Scotland, one shall always be returned by each of the separate shires, or 
 parts of shires, enumerated in the schedule (A.) hereunto annexed, and one by each two of 
 the combined shires or parts of shires enumerated and described in schedule (B.): provided 
 always, that all properties lying locally within the limits of any county or shire, though 
 hitherto constituting part of some other county, shall, for the purposes of this act, be held to 
 be part of the county within which they are locally included. 
 
 IV. Of the twenty-three members to be returned for the several or combined cities, 
 burghs, and towns of Scotland, two shall alwa}S be returned by each of the separate cities, 
 burghs, and towns enumerated and described in schedule (C), one by each of the separate 
 
368 RISE, PROGRESS, AND IMPROVEMENT 
 
 cities, burghs, and towns enumerated and described in schedule (D.), and one by each of 
 the districts or sets of cities, burghs, and towns enunaerated and described in schedule (E.). 
 V. The limits and boundaries of all the cities, burghs, and towns enumerated in any cf 
 the above-mentioned schedules, shall, for the purposes of this act, be taken and held to be ac- 
 cording to the description and specification of such limits and boundaries set forth and con- 
 tained in schedule (M.); and all the properties within the boundaries therein specified shall 
 hereafter, for the purposes of this act, be parts of the said cities, burghs, and towns, and not 
 of the adjoining or of any other county : provided always, that tlie following rules shall be 
 obsei'ved in the construction of the several descriptions of boundaries contained in the said 
 schedule (M.); that is to say, — 1. That the words "Northward," ** Southward," "East- 
 ward," " Westward," shall respectively be understood to denote only the general direction 
 in which any boundary proceeds from the point last described, and not that such boundary 
 shall continue to proceed throughout in the same direction to tlie point next described :— 
 2. That when any road is mentioned merely by the name of the place to which such road 
 leads, the principal road thither from the city, burgh, or town, of which the boundary is in 
 course of description shall be miderstood: — 3. That whenever a line is said to be drawn 
 from, to, through, or in the direction of, or any distance to be measured from or to, an ob- 
 ject, such line shall, in the absence of any direction to the contrary, be understood to be 
 drawn from, to, through, or in the direction of, or such distance to be measured from or to, 
 the centre of such object, as nearly as the centre thereof can be ascertained :— 4. That every 
 building through which or through any part whereof any boundary hereby established shall 
 pass, shall be considered as within such boundary : provided always, that if the boundaiies 
 of any two or more of the cities, burghs, and towns, whereof the boundaries are hereby de- 
 scribed, shall pass through the same building, or any part thereof, such building shall be 
 considered as within that one of such two or more of the said cities, burghs, and towns, which 
 was before the passing of this act entitled to return members or a member to serve in par- 
 liament ; or if neither or more than one of such two or more of the said cities, burghs, and 
 towns shall have been so entitled, then within that one of them whereof the area as hereby 
 established is the smallest : — 5. That whenever any boundary by this act established is said 
 to pass, or any distance to be measured, along any street, road, lane, or loaning; or up, 
 down, or along any river, stream, canal, or bum ; the middle (as nearly as the same can be 
 ascertained) of such street, road, lane, loaning, river, stream, canal, or bum, shall be under- 
 stood : — 6. That the middle of any street, road, or lane shall be understood as the middle of 
 the carriage-way along the same : — 7. That when any boundary by this act established is 
 said to proceed, or any distance to be measured, along a street, road, or lane, or up, down, or 
 along a river, from or to an object, such boundary shall be understood to proceed, or such 
 distance to be measured (as the case may be), from or to that point in the middle of such 
 road, lane, or river, from which the shortest line would be drawn to the centre of such ob- 
 ject, as nearly as the centre thereof can be ascertained : — 8. That the point at which any 
 wall, march, boundary, street, road, lane, loaning, avenue, railway, walk, path, river, 
 stream, canal, or burn is said to meet, join, cross, reach, or leave any march, boundary, 
 street, road, lane, loaning, avenue, railway, walk, river, stream, canal, or burn, shall be un- 
 derstood as that point at which a line passing along the middle of the march, boundary, &c., 
 80 met, joined, crossed, reached, or left, would be intersected by a line drawn along the mid- 
 dle of the wall, march, boundary, &c., so meeting, joining, crossing, reaching, or leaving, if 
 such line were prolonged sufficiently far ; and that the point at which any bum or river joins 
 any firth or the sea, shall be undtrstood as that point at which a line passing along the low- 
 water mark of such firth or the sea would be cut by a line to be drawn along the middle of 
 such burn or river, if such line were prolonged sufficiently far ; and that the point at which 
 a bum or feeder joins a loch shall be understood as that point at which a line drawn along the 
 shore of such loch would be cut by a line drawn thereto along the middle of such burn or 
 feeder : — 9. That when a line is said to be drawn to a road, lane, river, stream, or canal, such 
 line shall be considered as prolonged to the middle of such road, lane, river, stream, or 
 Gtnal: — 10. That the words "sea" and " shore" shall be understood the low-water mark : — ■ 
 11. That if any deficiency shall be found to exist in the line of any boundary described in 
 the said schedule to this act annexed, by reason of the intervention of any space between any 
 
OF THE LAW OF ENGLAND. 369 
 
 two immediately consecutive points, such deficiency shall be supplied by a straight line to be 
 drawn from the one to the other of such two immediately consecutive points. 
 
 VI. From and after the passing of this act, no person shall acquire, by succession, pur- 
 chase, gift, or otherwise, the right of voting for a member of parliament, either in shires, 
 or in dties, burghs, or towns, except by one or other of the qualifications hereinafter pre- 
 scribed and directed : provided always, that all persons who at the passing of this act shall 
 be lawfully on the roll of freeholders of any shire in Scotland, or who shall then be entitled 
 to be put on such roll, or who shall, previous to the first day of March, 1831, have become 
 the owners or superiors of lands affording the qualification for being so enrolled, shall, so 
 long as they retain the necessary qualification on which they are now enrolled, or are en- 
 titled to be enrolled, as aforesaid, be entitled to be registered and to vote as hereinafter di- 
 rected in the election of a member for such shire. 
 
 VII. From and after the passing of this act, every person, not subject to any legal inca- 
 pacity, shall be entitled to be registered as hereinafter directed, and thereafter to vote at any 
 election for a shire in Scotland, who, when the sheriff proceeds to consider his claim for re- 
 gistration, in the present or in any future year, shall have been, for a period of not less than 
 six calendar months next previous to the last day of August in the present or the last day of 
 July in any future year, the owner (whether he has made up his titles, or is infeft, or not,) of 
 any lands, houses, feu duties, or other heritable subjects, (except debts heritably secured,) with- 
 in the said shire ; provided the subject or subjects on which he so claims shall be of the yearly 
 value of ten pounds, and shall actually yield or be capable of yielding that value to the claim- 
 ant, after deducting any feu duty, ground annual, or other consideration which he may be 
 bound to pay or to give or account for as a condition of his right, provided he be, by himself, 
 his tenants, vassals, or others, in possession of the said subjects, and be either himself in the 
 actual occupation or in receipt of the profits and issues thereof to the extent above mention- 
 ed : provided alwajs, that where the whole profits and issuesof any such subject do not arise 
 annually, but at longer intervals, the worth and amount of such occasional profits shall be 
 taken into computation in estimating the annual value : provided also, tliat where any pro- 
 perty which would entitle* the owner to be registered and to vote as above, shall come to any 
 person, within the said period of six months, by inheritance, marriage, marriage settlement, 
 or mortis causa disposition, or by appointment to any place or office, such person shall be en- 
 titled to be registered on the first occasion of making up the list of voters, as hereinafter 
 provided, next following such succession -or acquisition. 
 
 VIII. In elections for shires, where two or more persons are interested in any subject to 
 which a right of voting is for the first time attached by this act, as life-renter and as fiar, 
 the right of voting shall be in the life-renter, and not in the fiar ; and all co-proprietors or 
 joint owners shall be entitled each to vote in respect of their joint property within the shire, 
 provided the share of interest of each joint owner so claiming on such property is of the 
 yearly value of ten pounds, as above specified, but not otherwise: provided also, that hus- 
 bands shall be entitled to vote in respect of property belonging to their wives, or owned or 
 possessed by such husbands after the death of their wives by the courtesy of Scotland. 
 
 IX. Tenants in lands, houses, or other heritable subjects shall also be entitled to be re- 
 gistered, and to vote at elections for the shires in which the said heritable subjects are situ- 
 ated, provided each tenant (whether joint or several) when the sheriff proceeds to consider 
 his claim for registration, shall, for a period of not less than twelve months next prcAnous to 
 the last day of August in the present or the last day of July in any future year, have held 
 such subjects or tenements, whether in his personal possession or not, imder a lease or leases, 
 missive of lease, or other written title, for a period of not less than fifty-seven years (exclu- 
 sive of breaks), at the option of the landlord, or for the lifetime of the said tenant, where 
 the clear yearly value of such tenant's interest, after paying the rent and any other consid- 
 eration due by him for his said right, is not less than ten pounds, or for a period of not less 
 than nineteen years, where the clear yearly value of such tenant's interest is not less than 
 fifty pounds, or where such tenant shall, for the foresaid period of twelve months, have been 
 in the actual personal occupancy of any such subject, where the yearly rent is not less than 
 fifty pounds, or where the tenant, whatever the rent may be, has truly paid for his interest 
 in such subject, a price, grassum, or consideration of not less than three hundred pounds: 
 
 3 A 
 
370 RISE, PROGRESS, AND IMPROVEMENT 
 
 provided always, that where, in any of these cases, the rent is payable in wliole or in part in 
 grain, the value shall be estimated according to the average fiarsof the counties in which the 
 heritable subjects are situated for the three preceding years, and where piyable in any other 
 species of produce, according to the average market prices of the neighbourhood for the 
 same period ; and the said values being once so fixed at the time of registering or refusing 
 to register shall be held as settled for the whole period of the lease : provided also, that where 
 the right to any such lease as would entitle the tenant to be registered and to vote, as herein- 
 before provided, shall come to any person, within the preceding twelve calendar months 
 above specified, by inheritance, marriage, marriage settlement, or mortis causa disposition, 
 such person shall be entitled to be registered, on the first occasion of making up the lists of 
 voters, as hereinafter provided, next following such succession or acquisition : provided also, 
 that no sub-tenant or assignee to any sub-lease for fifty-seven or nineteen years, shall be en- 
 titled to be registered or to vote in respect of his interest under such lease, unless he sliall be 
 . in the actual occupation of the premises thereby set. 
 
 X. From and after the end of this present parliament, the members who are to be re- 
 turned to serve in any future parliament for any single city, town, or burgh on which the 
 right of returning a member or members is by this act conferred, shall no longer be elected 
 by the town councils of such cities, burghs, or towns, but directly by the several individuals 
 on whom the right of electing such members to serve in parliament is by this act confericd ; 
 and where the election is by districts or sets of cities, burghs, or towns conjoined, the right 
 of electing shall no longer be in the town councils or corporations of the said cities, burghs, 
 or towns, or in delegates appointed by them, but in the individual voters on whom the right 
 of election is by this act conferred ; and the member to serve in parliament for any such dis- 
 trict shall be returned according to the majority of individual votes given in the whole 
 district. 
 
 XI. Every person, not subject to any legal incapacity, shall be entitled to be registered as 
 hereinafter directed, and to vote at elections for any of the cities, burghs, or towns, or dis- 
 tricts of cities, burghs, or towns, hereinbefore mentioned, who, when the sheriff proceeds to 
 consider his claim for registration, shall hjive been, for a period of not less than twelve 
 ciilendar months next previous to the last day of August in the present or the last day of 
 July in any future year, in the occupancy, either as proprietor, tenant, or life-renter, of any 
 house, warehouse, counting-house, shop, or other building within the limits of such city, 
 burgh, or town, which, either separately or jointly with any other house, warehouse, count-, 
 ing-house, shop, or other building within the same limits, or with any land owned and 
 occupied by him, or occupied under the same landlord, and also situate within the same 
 limits, shall be of the yearly value of ten pounds : provided alwajs, that the claimant shall 
 have paid, on or before the twentieth day of August in the present, or the twentieth day of 
 July in any future year, all assessed taxes which shall have become payable by him in 
 respect of such premises previously to the sixth day of April then next preceding : provided 
 also, that no such person shall be entitled to be registered or to vote in the present or any 
 future year unless he shall have resided for six calendar months next previous to the last day 
 of August in the present or the last day of July in any future year within such city, burgh, 
 or town, or within seven statute miles of some part thereof: provided also, that persons so 
 resident shall be entitled to be registered and to vote if they are the true owners of such 
 premises as are hereinbefore mentioned, within such city, burgh, or town, of the yearly- 
 value of ten pounds or upwards, although they should not occupy any premises within its 
 limits, or although the premises actually occupied by them should be of less yearly value 
 than ten pounds; and that the husbands of such owners shall be entitled to vote, either in 
 the lifetime of their wives, or after their death, if then holding such property by the cour- 
 tesy of Scotland : provided also, that no person shall be entitled to be registered or to vote 
 for any city, burgh, or town, who shall have been in the receipt of parochial relief within 
 twelve calendar months next previous to the last day of August in the year 1832, or next 
 previous to the last day of July in any succeeding year. 
 
 XII. The premises in respect of which any person shall be deemed entitled to be regis- 
 tered, and to vote in the election for any city, burgh, or town, or district, shall not be 
 required to have been the same premises for the whole twelve months of his occupancy, but 
 
OF THE LAW OF ENGLAND. 371 
 
 may be difl'erent premises, but always of the requisite value, occupied in succession by such 
 person ; provided always, that such person shall have paid all the assessed taxes legally 
 exigible from him in j'espect of all such premises ; and that where such premises shall be of 
 the yearly value of twenty pounds or upwards, and shall be jointly occupied by more than 
 one person, each of such joint occupiers shall be entitled to be registered and to vote, provided 
 his share and interest in the same shall be of the yearly value of ten pounds or upwards. 
 
 XI I L On or before the twentieth day of August, in the present year, every person 
 claiming a right to vote, under any of the qualifications hereinbefore specified, at any election 
 of a member to serve in parliament for any county in Scotland, shall give in a claim, sub- 
 scribed by himself or his agent, to the schoolmaster of that parish of the county within which 
 the property, or the greater part of it, on which he claims is situate, or in case of the inca- 
 pacity of such schoolmaster, or of the office being vacant, to any person actually officiating 
 as such schoolmaster, or to the schoolmaster of the next adjoining parish whose residence is 
 nearest to the vacant school, which claim shall be in the form of the first part of the schedule 
 F, printed copies of which forms or schedules, with the necessary blanks therein, to be filled 
 up by the claimant, every sherifl' clerk is hereby required to provide, and to furnish to the 
 schoolmasters of the different parishes within his county as speedily as possible after the 
 passing of this act, which several schoolmasters shall funn'sh copies of the same to all appli- 
 cants, upon payment of the sum of sixpence only for each copy ; upon which copies all the 
 claims to be given in shall be engrossed by the said claimant ; and each such schoolmaster, 
 upon receiving back such claim, filled up and subscribed as above directed, shall immediately 
 mark upon it the time of its being so lodged and presented, by filling up and subscribing 
 the printed form at the bottom, and forming the second part of the said schedule F ; and 
 each such schoolmaster shall, immediately after the said twentieth day of August, make up 
 an alphabetical list of the names, designations, and places of abode of all the persons within 
 his parish for whom such claims shall have been presented, and shall cause a copy of such 
 list to be affixed to the door of the church of such parish on or before the twenty-fourth day 
 of August in the present year, and shall annex to each list so affixed a notice of the times 
 when and the places where the sheriff shall begin to examine the claims to which no objec- 
 tions shall have been lodged, and also a distinct notice to all persons who may have claimed 
 to be registered for the county, and intend to object to the registration of any of the persons 
 named in the said list, to give in a note of their objections to the said schoolmaster on or 
 oefore the fifth day of September next ensuing ; which note of objections shall be signed by 
 the person for whom it is presented, or by an agent on his behalf, and shall be in the form 
 of the fii-st part of the schedule H ; and printed copies of such forms or schedules shall be 
 provided by each sheriff clerk, and distributed to the several schoolmasters, by whom they 
 shall be furnished to any person applying, upon payment of the sum of sixpence only for 
 each copy ; and upon these copies all the objections shall be engrossed by the objectors ; and 
 each such schoolmaster shall, on receiving back the same, filled up and subscribed as above, 
 mark thereon the true date of its being so lodged and received, by filling up and subscribing 
 the second part of the said schedule H ; and every such objector shall, within two days after 
 lodging such objection, give notice to the party to whose title he objects, by delivering to 
 him, or forwarding to his dwelling-house, or transmitting to him or his known agent through 
 the post-office, a copy of the said objection so given in; and proof of such notice having 
 been given shall be" made to the sheriff before he enters on the consideration of any such 
 objection ; and no claims or objections as above shall be received by any schoolmaster after 
 the expiration of the time hereinbefore allowed and appointed for the giving in of such 
 claims and objections respectively ; and each such schoolmaster shall, on or before the eighth 
 day of September in this present year, deliver or transmit to the sheriff clerk of the county 
 the whole claims and objections so received by him, together with a copy or duplicate of the 
 alphabetical list of claimants affixed by him to the church door of his parish; and it shall 
 be competent to any such claimant who may conceive that his ri^ht to be registered is estab- 
 lished by a written title, at any time after giving in his claim, and previous to the tenth 
 day of September in this present year, to deliver or transmit to the sheriff clerk any such 
 title, or extract thereof, as he may wish so to deliver, for which the said sheriff clerk shall 
 be bound to grant his receipt : provided always, that the parishes of Tulliallan, Culross, and 
 
372 RISE, PROGRESS, AND IMPROVEMENT 
 
 Logie in the county of Perth, and the parish of Alva in the county of Stirling, shall, for 
 the purposes of this act, be held to form parts of the county of Clackmannan ; and the 
 parishes of Muokhart and Fossoway in the county of Perth, shall, for the purposes of this 
 act, be held to form parts of the county of Kinross ; and all claims and objections and titles 
 relating to properties situate in any of these parishes, shall be delivered or transmitted to 
 the sheriff clerks of Clackmannan and Kinross respectively; and that all claims, objections, 
 and titles relating to properties in the several districts of Orkney and Shetland shall be 
 delivered or transmitted to the sheriff clerks of Orkney and of Shetland respectively. 
 
 XIV. Each sheriff shall, between the twelfth day of September and the fifteenth day of 
 October in the present year, examine and decide upon the merits of all claims for registra- 
 tion within his county; and for this purpose the sheriffs of the counties of Aberdeen, 
 Ayr, Argyle, Fife, Inverness, Lanark, Forfar, Perth, Renfrew, and Ross and Cromarty 
 shall hold open couils during this period, at not less than three several towns or places in 
 their said counties, including therein such towns or other places where the sheriffs or their 
 substitutes have been in use to hold their ordinary courts, where there are such places ; and 
 the sheriffs in all the other counties shall hold open courts at not less than two several places, 
 which places shall be so selected as to be most convenient for the claimants in the different 
 districts of the said counties ; and each sheriff shall, on or before the fifteenth day of August 
 in the present year, deliver to the sheriff clerk a written notice of the days, within the 
 period above mentioned, on which he is to hold his courts for the purpose of such registra- 
 tions at each of the said places in the county, copies of which notice shall be transmitted by 
 the sheriff clerks to each of the town clerks and parish schoolmasters in the county on or 
 before the eighteenth day of the said month of August. 
 
 XV. On or before the said twentieth day of August in this present year every person 
 claiming a right to vote for a member or members to serve in parliament for any city, 
 burgh, or town, or district of cities, burghs, or towns, in Scotland, shall give in a claim sub- 
 scribed by himself or his agent, and accompanied by such written title as he may choose to 
 produce, to the town clerk of the city, burgh, or town within which the premises in respect 
 of which he so claims are situate, provided there be at the time a town clerk appointed and 
 officiating for such town, which claim shall be in all respects in the same form as is herein- 
 before directed, as to claims to vote for a county, and shall be issued, received back, marked, 
 and entered in a book or register by the town clerk on the same terms, and in the same 
 manner in all respects as the claims for county votes are hereinbefore directed to be issued, 
 received back, marked, and entered by the several parish schoolmasters and sheriff clerks of 
 each county : provided always, tliat where the limits of any city, burgh, or town, as described 
 in the schedule M, shall include the whole or part of any other burgh or town, the whole 
 claims arising within such limits shall be given in to the clerk of the principal city, burgh, 
 or town specified and described in such schedule, and not to the clerks of any of the subordi- 
 nate burghs or towns partly or wholly included within the said limits ; provided also, that 
 where there is no town clerk in any such burgh or town, the claims made in respect of 
 properties situate in such burgh or town shall be given in to a person resident within such 
 burgh or to\vn, to be nominated by the sheriff of the county within fifteen dajs after the 
 passing of this act. 
 
 XVI. Each town clerk shall prepare an alphabetical list of the names, designations, and 
 places of abode of all the persons within the city, burgh, or town of which he is clerk for 
 whom such claim shall have been presented, and shall, on or before the twenty-sixth day of 
 August in this present year, cause a copy of such part of such list as includes the claimants 
 within each parish to be affixed on or near the door of the church of every such parish 
 within such burgh or town, annexing to each such list a notice to persons intending to 
 object, to give in their objections to the said town clerk on or before the tenth day of Sep- 
 tember next ensuing, and also a notice of the time when and place where the sheriff of the 
 county Avithin which such city, burgh, or town may be situate, will begin to examine the 
 claims to which no objections shall be lodged ; and all such objections shall be framed in the 
 same terms, and issued and received back by the said town clerk, in all respects, on the 
 same considerations and in the same way and manner as is hereinbefore provided as to the 
 objections against claims of registration for the county so to be issued and dealt with by the 
 
OF THE LAW OF ENGLAND. 373 
 
 schoolmasters in such county ; and the same notices shall be given by the parties objecting 
 to the party objected to as is provided in regard to such claims for the county ; and no town 
 clerk shall receive any claim or objection after the expiration of the time before allowed and 
 appointed for giving in such claims and objections respectively. 
 
 XVII. Upon the twelfth day of September in this present year, each sherift" derk and 
 each town clerk of any city, burgh, or town within any one county, or any two counties or 
 parts of counties united for the purposes of this act, shall lay before the sherift' the several 
 claims and objections which have been received by any of the said clerks, together with the 
 titles or documents which may have been lodged along with any of those claims ; and the 
 said sheriff shall forthwith proceed to examine the claims to which no objections have been 
 lodged, and which have been supported by production of a written title, in the order, as 
 nearly as possible, in which they were presented ; and whenever he is satisfied that the title 
 so produced does of itself afford prima facie evidence of the validity of the claim, he shall 
 write upon the claim the word " admit," and mark the same with his initials, and forthwith 
 return the said claim to the sheriff clerk, or the town clerk, by whom it was presented, 
 which several clerks shall then enter the claimant in the books or registers of qualified voters 
 to be kept by them for the county, and for the several burghs within the county respectively, 
 in the alphabetical order of the voters' names, the names of the county voters in each parish 
 being entered in a separate alphabetical series, and in the form of the schedule G ; and the 
 said sheriff" clerk and town clerk shall there sign each entry with their initials, and each 
 page of the register with their names, and shall furnish a signed copy of such entry to each 
 voter, or to any person Avho may require it, upon payment of the sum of sixpence only for 
 each such copy; and immediately after all the claims of this description which appear 
 sufficiently established have been admitted, the sheriff" shall proceed to the consideration of 
 the other claims to which no objections have been given in, but which have either not been 
 accompanied by any written title, or where the titles produced do not appear to him to afford 
 prima facie evidence in their favour, and that in the order of the dates on which they were 
 severally presented, and shall summarily inquire into and examine the evidence by which 
 the parties, or their agents, may then be prepared to support them, by the examination of 
 written documents, witnesses, or oath or declaration of parties, or otherwise, as the case may 
 require or admit of; and when the said sheiiff'is satisfied that any claimant has made out a 
 prima facie case in support of his claim, he shall write upon it the word " admit," and mark 
 it with his initials, and return it to the sheriff" clerk, or the several town clerks as herein- 
 before provided, who shall thereupon enter the claimant in the register, in the same manner, 
 and to the same eff'ect, as is above provided as to admitted claims of the first description; 
 but when the sheriff^ is not satisfied that there is prima facie evidence to support any such 
 claim, he shall write upon it the word "reject," and mark it witti his initials as above, and 
 return the same to the said clerks, to be kept by them till applied for by the parlies present- 
 ing the same or their agents, to whom, upon such application, they shall be forthwith de- 
 livered. 
 
 XVI II. When the sheriff" has in manner aforesaid gone through and disposed of all the 
 claims to which no objections are off'ered, he shall proceed to consider and hear the parties 
 or their agents upon the several claims to which objections are lodged, and that in the order 
 of the dates of presenting the said claims, and shall hear and receive all competent evidence 
 which either party may produce in support of his claim or objection respectively ; and where 
 he is satisfied that the claim is well founded, he shall write on it the word " admit," authen- 
 ticated as above, and return it to the clerk for registration, as in the other cases of admis- 
 sion already provided for; and where he is satisfied that it is not well founded, he shall 
 mark it with the word " reject," and deal with it in other respects as with the rejected 
 claims herein already provided for : provided always, that in all cases where no party shall 
 appear to support a claim to which objections have been lodged, it shall be rejected upon 
 the sheriff being satisfied that a prima facie case has been made out in support of the ob- 
 jection ; and where no party shall appear to maintain his objection, the claim to which it 
 applies shall be dealt with as if no objection had been lodged against it, and shall be admit- 
 ted if the sheriff* is satisfied that a prima facie case has been made out in support of it. 
 
 XIX. No written pleadings shall in any case be allowed in support of claims or objeo- 
 
374 RISE, PROGRESS, AND IMPROVEMENT 
 
 tions; but when the sheriff shall reject any claim to which no objection has been offered, 
 and when he shall hear parties upon any claim to which any objection has been offered, he 
 shall make a note of the statement of fact, and of the pleas founded on it, and of the names 
 of the witnesses, and shall affix his signature to the deeds, writings, and other documents 
 produced by the parties in support of such claim or objection ; and it shall not be competent 
 to support any appeal upon any ground of fact or of law not set forth in such note of the sheriff, 
 or to produce any witnesses not named in the said note, or any deeds, writings, or other do- 
 cuments to which the signature of the said sheriff is not affixed. 
 
 XX. On or before the fifteenth day of October in the present year, each sheriff clerk 
 shall complete his alphabetical lists or registers of votei-s for the county : provided always, 
 that on or before the said fifteenth day of October, each sherifi' clerk, being the keeper of 
 the roll of freeholders for the county of which he is clerk, shall transfer the names of all the 
 freeholders standing on such roll after the passing of this act to the said lists or registers of 
 voters, without requiring any claim to be presented on behalf of such freeholdei-s ; and if 
 any election shall take place for such county before the said register shall be corrected at 
 the next yearly revisal, as hereinafter provided, the votes at this first election shall be tak- 
 en according to this first alphabetical register, an authenticated copy or copies of which 
 shall accordingly be sent for this purpose to each of the polling places appointed for the 
 county : provided always, that at all future elections which shall take place after the yearly 
 correction of such registers, the votes shall be tiiken according to the last completed register, 
 as hereinafter mentioned. 
 
 XXI. On or before the twelfth day of October in the present year, each town clerk shall 
 complete his alphabetical list or register of votes for the city, burgh, or town of which he is 
 clerk; and that wherever such city, burgh, or town is one of a district contributing with 
 other burghs for the return of a member to parliament, and is not the buigh at which the 
 writ is to be proclaimed and the election held, the town clerk shall, within three dajs after 
 the said twelfth day of October, make up and transmit an authenticated copy or duplicate 
 of such list or register to the town clerk of the city, burgh, or town at which it is herein- 
 after provided that the election shall take place •, and the town clerk of the sjiid principal or 
 returning burgh, after having received such duplicates from the other burghs of the district, 
 shall forthwith combine and reduce the whole into one list or register of voters for the whole 
 district, those for each burgh being always kept together, to be kept by him in the said 
 principal burgh, for the purpose of reference and inspection ; and if any election shall take 
 place for such district before the said registers shall be corrected at the next yearly revisal, 
 as hereinafter provided, the votes at such election shall be taken in each burgh according to 
 their first alphabetiad registers for such burghs, the originals or authenticated copies of 
 which shall accordingly be sent to each of tlie polling places that may be appointed in each 
 such burgh ; provided always, that in all future elections the votes shall be taken according 
 to the last completed and corrected register, as htreinafter enacted. 
 
 XXII. Each sheriff' shall once every jear after the present year, examine and correct his 
 said registers ; and each sheriff clerk and town clerk within the county shall for this purpose, 
 in the month of June, and between the tenth and twentieth da}s thereof in every such 
 future year, give public notice, by advertisements affixed to the church doors of all the 
 country, burgh, and town churches within the shire respectively, and also, if they sliall see 
 cause, by advertisement in the newspaper of greatest reputed circulation in the shire, to all 
 persons intending to claim to be registered, or to object to the title of any voter already on 
 the register, to give in tlieir several claims, titles, and objections to the schoolmastere and 
 town clerks, as such claims, titles, and objections respectively are by this act directed or 
 authorized to be given in, and that in the forms already provided by schedules F and H, on 
 or before the twentieth day of July then next ensuing, after which no such claims or objec- 
 tions shall be received ; and when the new claims are so given in, the schoolmasters and the 
 sheriff and the sherifl' clerk, and several town clerks, within each county, shall deal with and 
 dispose of them in the same oider and manner, both as to publication of the claims aiul 
 notices to objectors, and as to the periods or intervals at which they shall severally be re- 
 ceived, notified, and disposed of, as is above provided with regard to the first or original 
 claims for registration under this act; that is to say, that in so far as relates to claimants for 
 
OF THE LAW OF ENGLAND. 375 
 
 counties, the several schiiolmastei-s shall affix the lists of such new cluimniits, with the 
 notices hereinbefore directed, to the church doors, on or before the twenty-fourth day of 
 July in each such year; that all objections to such claims shall be given in to such school- 
 masters on or before the fifth day of August theretifter; that the claims and objections shall 
 be delivered or transmitted to the sheriff clerks on or before the eighth day of the said 
 month of August in each such year, the claimants being at liberty to lodge their written 
 titles with the sheriff clerk at any time previous to the tenth day of the said month ; and that 
 the whole claims, objections, and titles shall be laid before the sheriff on or before the twelfth 
 day of tliat month, who shall decide upon their merits between that day and the fifteenth 
 day of September tliereafter ; and that, in so far as regards claimants in burghs, the several 
 town clerkrs shall affix the lists of new claimants, with the notices hereinbefore directed, to 
 the church doors of their burghs, on or before the twenty-sixth day of July in each sucli 
 year ; that the objections to such claims shall be given in on or before the tenth day of 
 August thereafter ; and that the whole claims, objections, and titles shall be laid before the 
 sheriff on or before the twelfth day of the said month of August, who shall examine aiid 
 decide upon the same on or before the fifteenth day of September in each such year ; the 
 said sheriffs always proceeding to three or to two several places, as above provided, in their 
 several counties, and notifying to the sheriff clerk, on or before the fifteenth day of July in 
 each such year, the daj s at which they are to hold tlieir courts at each of the said places, of 
 which days written notice shall be given by the sheriff clerks to each town clerk and parish 
 schoolmaster in the county, on or before tlie eighteenth day of July in each such year : 
 provided alwajs, that the sheriffs shall upon this occasion correct any mistakes or omissions 
 which may be pointed out or discovered in the registers in the name, residence, or condition, 
 of any person already registered or otherwise ; and each sherifi' clerk shall for this purpose 
 be obliged to keep a correct copy of the register for the county at some convenient place in 
 the head burgh of the shire (the town of Lerwick in Shetland being held for this purpose 
 the head burgh for that part of the county), and each town clerk shall keep a copy of the 
 register for his burgh at some convenient place in the said burgh ; which several registers 
 shall, for a period often days next after the twentieth day of June in each year, be open to 
 the inspection of all persons who may desire to see the same, without payment of any fee for 
 such inspection ; and each sheriff shall, on or before the fifteenth day of September yearly, 
 have his said registers finally corrected and completed, and arranged as above directed, in the 
 alphabetical order of the voters' names, with the several columns of particulars thereto an- 
 nexed, as in schedule G ; and after the said fifteenth day of September no change shall 
 be made by any sheriff on his registers for that year, except only in consequence of the 
 judgment of one or other of the courts of review hereinafter provided •, provided always, 
 that in case any of the dajs hereinbefore mentioned shall happen to be a Sunday or other 
 holiday, on which no business is usually transacted, then and in that case the several acts and 
 proceedings appointed to take place on such days shall take place on the day next ensuing. 
 
 XXIIL The sherifl's judgments, granting or refusing registration, shall, so long as 
 they remain unaltered, be conclusive of the rights of parties claiming or objecting as above, 
 but it shall be competent to any party, considering himself aggrieved by any such judg- 
 ment, to appeal and apply for an alteration thereof, he always giving notice in writing to 
 the sheriff clerk or town clerk, and to the opposite party, where the claim has been disputed, 
 of such his intention to appeal, within five da}S after the judgment complained of, and 
 producing evidence of such notice to the judge of appeal before entering on its merits. 
 
 XXIV. And in order that the greater number of appeals which may be expected to be 
 given in after the first general registration under this act may be more easily and expedi- 
 tiously disposed of, the sheriffs of Elgin and Nairn, Inverness, and Orkney and Shetland shall 
 form a court of review for deciding upon all such appeals as may be taken from the judg- 
 ments pronounced in this present year on any such claim for registration, under this act, by 
 the sheriffs of any of these three counties, or by the sherifis of the counties of Caithness, 
 Sutherland, Ross and Cromarty, and Banff"; and the sheriffs of Aberdeen, Argyle and 
 Perth shall form a court of review for deciding upon all such appeals as may be taken from 
 the judgments pronounced in this present year on any such claim for registration, under this 
 act, by the sheriffs of any of these three counties, or by the sheriffs of the counties of Forfar, 
 
376 RISE, PROGRESS, AND IMPROVEMENT 
 
 Kincardine, or Fife; and the sheriffs of Lanark, Ayr, and Stirh'ng shall form a court 
 of review for deciding upon all such appeals as may betaken from the judgments pro- 
 nounced in this present year on any such claim for registration, under this act, by the 
 sheriffs of any of these three counties, or by the sheriffs of the counties of Dumbarton, 
 Kinross, and Clackmannan and Bute ; and the sheriffs of Renfrew, Kirkcudbright, and 
 Dumfries shall form a court of review for deciding on all such appeals as may be taken 
 from the judgments pronounced in this present year on any such claim for registration, under 
 this act, by the sheriffs of any of these three counties, or by the sheriffs of the counties of 
 Peebles, Selkirk, and "Wigton-, and the sheriffs of Edinburgh, Linlithgow, and Berwick 
 shall form a court of review for deciding upon such appeals as may be taken from the judg- 
 ments pronounced in this present year on any such claim for registration, mider this act, by 
 the sheriffs of any of these three counties, or by sheriffs of the counties of Roxburgh and 
 Haddington ; and each three of the sheriffs above named, as joint judges of appeal for the 
 counties hereinabove specified, shall, within eight days after the said first registers shall be 
 completed as hereinbefore provided, proceed upon a circuit into the district as to which they 
 are hereby constituted judges of appeal, and shall repair successively to the county town, 
 and to at least one other towia in each of the counties, in each such district, (excepting always 
 combined counties, which shall for this purpose be held but as one coimty, and excepting also 
 the comity of Orkney and Shetland, for which the court of review shall be held only at 
 Kirkwall in Orkney,) and shall there hear and determine on all such appeals, notice having 
 been given by advertisements in the newspapers of the different places at which they are 
 successively to hold their courts, and of the days respectively on which their said courts are 
 to be opened in each place; and in case of the necessary absence of any of the three sheriffs 
 hereinbefore mentioned, the remaining two shall be a quorum for judging in such appeals ; 
 but in case of their differing in opinion, they shall be obliged to refer the case for the judg- 
 ment of the sheriff who shall be absent ; and in the event of any of the sheriffs herein 
 named as judges of appeal being Incapacitated or dying, and no successor being appointed, 
 after the passing of this act, and before the time arrives for holding the courts of appeal 
 hereinbefore directed, the lord president of the court of session shall appoint some other 
 sheriff to act in his place, who shall act and proceed accordingly ; and no written pleadings 
 shall be allowed before such courts of review, nor any record be made up of their proceed- 
 ings, and no written sentence shall be pronounced, except by one of the said sheriffs writing 
 the word " admit" or "reject," (as the case may be,) on the claim in dispute, and by 
 him and the other sheriffs subscribing their names to the word so written : provided always, 
 that it shall be competent for such sheriffs, acting as judges of appeal, to find the appellant 
 liable in costs when they affirm the judgment appealed from, and to modify and decern 
 for the same ; on which decerniture the respondent shall be entitled to enforce payment as of 
 an ordinary debt, within the county where the disputed claim was presented ; and the judg- 
 ments of such sheriffs on all such appeals shall be pronounced on or before the twentj-fifth 
 day of November in this present year, and shall be final and conclusive to all intents and 
 purposes, and not liable to any process of review •, and shall, whenever they vary or reverse the 
 judgment complained of, be, upon their production subscribed as above, a warrant for the 
 sheriff who made up the register to alter and correct his registei-s in conformity thereto, 
 and he shall so alter and correct them accordingly, and shall have the said registers completed 
 with such corrections on or before the thirtieth day of November in this present year. 
 
 XXV. Whenever any party shall be dissatisfied with any judgment of a sheriff, admit- 
 ting or refusing registmtion, or expunging or refusing to expunge any names already on his 
 register, at any of the amiual registrations and corrections hereinbefore directed to be held 
 in any future year, it shall be competent for any such part)', wherever the county of such 
 sheriff is within any circuit of the court of justiciary, to appeal from such judgment to the 
 sheriffs liable in attendance at such circuit for the district within which such county is situ- 
 ate, which sheriffs, or some three of their number, shall remain at, or return to the circuit 
 town of such district after the autumnal circuit in each such year, and there begin to hold 
 their court for disposing of such appeals on some day between the fifteenth and twenty-fifth 
 days of September in each such year, of which day notice shall, one week before, be given 
 by advertisement in the newspaper of grcaiest circulation within such county, and the Kiid 
 
OF THE LAW OF ENGLAND. 377 
 
 sherifTs shall there finally determine all such appeals on or before the twentieth day of Octo- 
 ber thereafter ; the sheriffdom of Orkney and Shetland being always held for this purpose 
 to be within the district of Inverness, and the sheriff, when present, being entitled to act as 
 a judge of appeal : provided always, that where the sheriffs liable in attendance at any such 
 circuit are fewer than three, or where any of them is unavoidably prevented from attending 
 by sickness or other accidental cause, the judge or judges at the said autumnal circuit shall 
 nominate and appoint one or more other sheriffs, or advocates of not less than four years' 
 standing, to act along with the attending sheriffs, so as that there shall always be three judges 
 in such court of review ; and with regard to the judgments pronounced in such annual re- 
 gistrations by the sheriffs of the counties of Edinburgh, Haddington, or Linlithgow, re- 
 spectively, the appeal shall be to the sheriffs of the three said counties jointly, and they are 
 hereby required to hold a court for this purpose at'Edinburgh, at some time previously an- 
 nounced, between the fifteenth and twenty-fifth days of September in each year, and finally 
 to determine on all appeals on or before the twentieth day of October thereafter : provided 
 ahvays, that, in the event of the sickness or unavoidable absence of any of the said three 
 sheriffs, it shall be competent to the lord president of the court of session, on the application 
 ol any of the said sheriffs, to appoint some other sheriff, or advocate of four years' standing, 
 to act and officiate in place of the sheriff so incapacitated ; and the judgments of the said 
 courts of review shall in all cases be final and conclusive, and liable to no process of review, 
 and shall, whenever they reverse or vary the judgments of the sheriff appealed from, be 
 warrants to him to alter and correct his registers in conformity thereto, and he shall, on such 
 judgments being made known to him by the parties, alter and correct such registers accord- 
 ingly : provided always, that no alteration of the sherift's judgments, either by the courts of 
 review above named, or by any other judges of appeal, shall afliect the merits of any election 
 actually completed and carried through before the date of such alteration, except in so far as 
 effect may be given to such alteration by any committee of the commons house of parlia- 
 ment to which a petition against such election may be referred ; provided also, that nothing 
 herein contained shall be held to limit or restrain the powers of such committee to take into 
 consideration the validity of any vote or claim for registration admitted or rejected by the 
 sheriff of the judges of appeal, and to alter the register, poll, or return accordingly, in so far 
 as concerns the election petitioned against: provided also, tliat in all proceedings before such 
 committee for determining the validity of any election for Scotland, all deeds, instruments, 
 extracts, or other writings, which are probative by the law of Scotland, shall be deemed and 
 taken to be probative, and shall be received in evidence by such committee, without proof of 
 the execution, signing, or examination thereof, in the same manner as such deeds, instru- 
 ments, extracts, or other writings are now admitted in courts of law and equity in Scotland. 
 XXV L In all elections, after the end of this present parliament, every qualified person 
 whose name shall appear in the last corrected register, and none other, shall be entitled to 
 vote ; and it shall not be competent to inquire on that occasion into any other facts except those 
 of the party tendering the vote being truly the individual mentioned in the said register, of 
 his being still possessed of the qualification there recorded, on his own account, and not in 
 trust for or at the pleasure of any other person, and of his not having previously voted at that 
 election : provided alwa)s, that the inquiry into these facts shall, on this occasion, be confined 
 to the putting to the person so tendering his vote, if the sherift' shall be required so to do on 
 behalf of any candidate, an oath, or if he be a Quaker or Moravian, a solemn afiirmation, in 
 the form of the schedule I ; and it shall not be competent at any such poll or election to 
 put to any registered voter any other oath or affirmation whatsoever, except only an oath or 
 affirmation against bribery, which, if required on the part of any candidate, shall then be 
 put by the sheriff in the form of schedule K: provided alwa}S, that any person who has 
 claimed to be registered, but whose claim has been rejected by the sheriff or court of review, 
 may, notwithstanding, tender his vote at any election where such register is in force, and tlie 
 sheriff or his substitute shall enter any vote so tendered, with the name of the person for 
 whom it is given, distinguishing the same from the votes given by persons on the register, 
 so that it may be in the power of any election committee to give effect to such vote in decid- 
 ing upon the validity of any disputed election ; but no scrutiny shall be allowed by or before 
 any returning officer with regard to any votes given or tendered at any such election. 
 
 3B 
 
378 RISE, PROGRESS, AND IMPROVEMENT 
 
 XXVII. Within three months after the passing of this act, each sheriff shall divide his 
 county into convenient districts for polling, following, as nearly as possible, the boundaries of 
 parishes, baronies, or other known subdivisions, and shall appoint a particular polling place 
 for each such district, which place shall be selected so as to be most accessible to the voters 
 in the district ; and such polling places shall in no case be more in number than fifteen for 
 any one county, and shall be so arranged as that no more than six hundred pereons or there- 
 abouts shall poll at any election at any one place ; and each town clerk shall, in like manner, 
 appoint one polling place in every city, burgh, or town of which he is clerk, in which the 
 number of voters does not exceed six hundred or thereabouts, and shall, wherever the num- 
 ber of registered voters in any such city, burgh, or town shall exceed six hundred or there- 
 by, divide the said city, burgh, or town into convenient districts, and appoint a convenient 
 polling place in each such district, so as that no more than about six hundred persons shall 
 poll at any election at any such place •, and each sheriff clerk shall, within fourteen days after 
 the sheriff has so divided his county into districts for polling, make up a distinct list of the 
 said districts and the polling place appointed in each, and shall cause copies of the said lists 
 to be affixed to the doors of all the country parish churches in his county •, and each town 
 clerk shall, within the same period, affix lists of the polling place or polling places within his 
 burgh to all the church doors within the same ; and every voter shall poll at the polling place 
 of the district within which the premises, or any part of them, in respect of which he claims 
 to vote, may be situate, except only where such polling place shall be in an island distant 
 more than ten miles from the mainland of any county, in which case the voters not resident 
 in such island may poll at the polling place for the district in which tlie county town is in- 
 cluded : provided always, that with respect to the contiguous burghs of Anstruther East, 
 Anstruther West, and Kilrenny, the town clerk of Anstruther East shall appoint one poll- 
 ing place within tlie said burgh of Anstruther East for the whole of the said three burghs, 
 which place shall be notified in manner herein provided, and all the voters in the said three 
 burghs shall poll at the polling place so appointed •, and at any contested election, the sheriff 
 shall, if required by any of the candidates, direct two or more booths, or halls, rooms, or 
 other places for polling, to be provided at each polling place ; and all polls shall be taken, 
 both at elections for shires, and for cities, burghs, and towns, under the superintendence of 
 the sheriff, or of a substitute or substitutes named by him, which substitutes tlie sheriff i» 
 hereby empowered to name at his own discretion, without observing the forms necessary in 
 the appointment of ordinary substitutes receiving salaries; and each substitute so superin- 
 tending a polling place shall have the assistance of a clerk or of clerks, to be appointed by 
 the sheriff, with the concurrence of the candidates, if they can agree, and by the sheritf 
 clerk of the county in case of their not agreeing ; and each poll clerk shall have with him ;it 
 the polling place an authenticated copy of the register of that district of the shire, or of the 
 city, burgh, or town, or cities, burghs, or towns, attached to each such polling place entitled 
 to share in the election within the said shire, as the case may be, alphabetically arranged as 
 herein directed, according to which copy the votes shall be taken. 
 
 XXVIII. Writs for the election of members to serve for shires, or for any city, burgh, 
 or town entitled to send a member or members for itself, shall be directed as heretofore to 
 the sheriff of the shire ; and where the election is for a district of cities, burghs, or towns, 
 a writ shall be directed to the sheriff specified in schedule L, and shall be proclaimed jis 
 hereinafter directed, at the town specified in the said schedule L for each of the said dis- 
 tricts respectively ; and each sheriff shall endorse on the back of the writ the day on which he 
 received it, and shall within three days thereafter announce a day or days, which day or da}s 
 shall (except only in the case of Orkney, as hereinafter provided) not be less than ten nor more 
 than sixteen days after that on which the writ was received, for the election or elections 
 within his shire, and shall give due intimation thereof by printed or written notices affixtd 
 on the doors of all the parish churches (except as hereinafter excepted) within the county, 
 when the election is for a county, and of all the parish churches in the city, burgh, or town, 
 or cities, burghs, or towns, when the election is for a town or district of towns, and also, 
 where he thinks this expedient, by advertisement in the newspaper or newspapers of great, 
 est circulation in the county or district. 
 
 XXIX. On the day named by the sheriff for the election for the shire, the sheriff shall 
 
OF THE LAW OF ENGLAND. 379 
 
 repair to the market cross, or some other convenient and open place in or immediately 
 adjoining the county town, and shall there publicly proclaim the writ by reading it ; pro- 
 vided always, that the writ for the united counties of Clackmannan and Kinross shall be pro- 
 claimed at the town of Dollar ; and that the writ for the united counties of Elgin and Nairn 
 shall be proclaimed at the town of Forres ; and that the writ for the united counties of Ross 
 and Cromarty shall be proclaimed at the tewn of Dingwall ; and if no more than one candi- 
 date shall at the time of such proclamation be proposed for the choice of the electors, he 
 shall, upon a show of hands, forthwith declare the person so put in nomination to be duly 
 elected: but if more candidates shall be proposed, and a poll is demanded, the proceedings 
 shall be adjourned for a period to be named by the sheriff, but not exceeding two free days, 
 exclusive of Saturdays and Sundays, and the polling shall commence at the places previously 
 intimated, at nine of the clock of the day that shall be named. 
 
 XXX. Where the election shall be for any city, burgh, or town, or district of cities, 
 burghs, or towns, the sheriff to whom, as hereinbefore directed, the writ shall have been 
 addressed, shall, on the day and hour previously named by him for such election, repair to 
 the market cross, or some other convenient and open place in or immediately adjoining any 
 town or burgh sending a member by itself, or that town of any district at which, as here- 
 inbefore directed, the writ for the whole district is to be proclaimed, and shall there pub- 
 licly proclaim the writ by reading it ; and if no more candidates shall be proposed for the 
 choice of the electors than there are vacancies to be filled up, he shall declare the person or 
 persons put in nomination to be duly elected, on a show of hands ; it being always competent 
 for any registered voter residing, or having his qualification in any other city, burgh, or 
 town of the district, to repair to the place where the writ is thus proclaimed, and to put 
 any person in nomination, provided that voter shall first satisfy the sheriff that he is truly 
 registered, by producing an extract of his registration, and by taking, if required, the oath 
 in schedule I ; but if more candidates shall be proposed than there are vacancies to be 
 filled up, and a poll shall be demanded, the proceedings shall be adjourned for not more 
 than three free days, exclusive of Saturdays and Sundays: provided alwa)S, that in the dis- 
 trict including the town of Kirkwall in Orkney the adjournment may be made for any peri- 
 od not exceeding seven free days; and the sheriff who proclaimed the writ, having thus fixed 
 one particular day on which the polls are to take place in all the burghs of the district, shall 
 forthwith send a written notice to each sheriff within whose shire any city, burgh, or town 
 of the district is situate, that a poll has been demanded, and also of the day on which it is to 
 begin ; and each such sherifi' shall accordingly appoint such a number of substitutes and 
 clerks as may be necessary to assist or officiate as before provided at each of the polling places 
 provided in any of the cities, burghs, or towns of such districts within his county ; and the 
 polling shall begin at each such polling place at nine of the clock of the day so appointed, 
 and shall proceed thereafter as hereinafter provided. 
 
 XXXI. And in respect of the remote situation of certain parts of the county of Orkney 
 and Shetland, and the occasional difficulty of communication therewith, the sheriff of Ork- 
 ney to whom the writ for the election of a member for the said county shall be addressed at 
 Kirkwall, shall, within twenty-four hours after receiving the same, issue a precept to the 
 sheriff substitute in Shetland, fixing a day for the election for the said county, Avhich day 
 shall not be less than twelve nor more than sixteen days after that on which the writ was 
 received, and shall forward or transmit the said precept, with the least possible delay, di- 
 rectly to the said sheriff substitute in Shetland, who, immediately on receipt thereof, shall 
 announce the day of election by notices on the church doors ; and if on the day of election 
 more candidates than one shall be put in nomination, and a poll shall be demanded, the 
 sheriff shall then adjourn the proceedings for a period of not less than ten, or more than four- 
 teen days, and shall within twenty-four hours despatch notice of this adjournment to the 
 sheriff substitute of Shetland, as in the case above provided for; and the polling shall com- 
 mence accordingly at the different polling places in both pails of the county on the day to 
 which the proceedings are adjourned, and shall proceed as hereinafter directed, as in other 
 cases of polling. 
 
 XXXn. No poll at any election, either for a county or a city, burgh, or town, or district 
 of cities, burghs, or towns, shall be directed to begin on a Saturday, or shall be kept open for 
 
380 RISE, PROGRESS, AND IMPROVEMENT 
 
 more than two consecutive dnys, and that only between the hours of nine in the morning 
 and four in the afternoon for the first day, and between the hours of eight in the morning 
 and four of the afternoon for the second day : provided always, that the poll at any one 
 place may be closed before the termination of the said two days, if all tlie candidates or their 
 agents and the sheriff shall agree in so closing it : provided also, that where the proceedings 
 at any election shall be obstructed by any riot or open violence, the sheriff or his substitute 
 at the place where the riot has occurred, may adjourn the poll at that place to the following 
 day or some other convenient time, and if necessary may repeat such adjournment till such 
 obstruction may have ceased, he always giving notice to the sheriff who is to make the return 
 of such adjournment having been made •, and any day where the poll shall have been so 
 adjourned at any polling places shall not be reckoned one of the two days of polling within 
 the meaning of this act, nor shall the state of the poll be finally declared, nor the result of 
 the election proclaimed, until the poll so interrupted shall be closed and transmitted, as here- 
 inbefore provided, to the sheriff who is to make the return ; and each sheriff in charge of 
 each polling place shall take care that the attending clerk at the place has with him a certi- 
 fied copy of the aforesaid alphabetical register, and shall receive the votes of all persons then 
 qualified to vote according to the provisions of this act, and shall record and progressively 
 number each vote for each candidate in a poll book, and he and the clerk shall subscribe 
 their names to each page of the said book before making or allowing to be made any entry 
 in the succeeding page ; and the poll book or books shall at the close of the first day's polling 
 be publicly sealed up by the said acting sheriff and poll clerk, and be taken charge of by the 
 said sheriff, and on the commencement of the poll of the second day he shall publicly break 
 the seals, and then proceed as formerly ; and immediately after the poll at his polling place 
 is finally closed, the officiating sheriff shall forthwith seal up and transmit or deliver the said 
 poll books to the sheriff acting as the returning officer for the shire. 
 
 XXXIII. The sheriff to whom the said poll boolis have been transmitted or delivered, 
 shall on the day next but one after the close of the poll (unless such day shall be Sunday, 
 and then on the Monday following), openly break the seals of the said poll boolcs, and cast 
 up the number of votes as they appear on the said several books, and shall openly declare 
 the state and result of the poll, and make proclamation of the member or members chosen, 
 not later than two of the clock of the afternoon of the said day, and shall forthwith make a 
 return in the form presently used (as nearly as may be), in terms of the writ, under his 
 hand and seal, to the clerk of the crown in England ; and if the votes shall be equal, he shall 
 make a double return. 
 
 XXXIV. Where the election is for one city, burgh, or town sending a member or two 
 members by itself, or for a district of towns lying wholly within one shire, the said poll 
 books shall be transmitted to and the return made by the sheriff of the shire within which 
 such city, burgh, or town, or district shall be situate ; and whei'e the election shall be for a 
 district or set of burghs or towns lying in different shires, the said poll books shall be sever- 
 ally transmitted in the first instance to the sheriffs of the several shires within which any of 
 the said burghs or towns shall be situate, and tliereafter the other sheriffs shall transmit the 
 said poll books to the sheriff, to whom, as herein provided, the writ shall have been directed, 
 by whom the votes shall be summed up, and the result declared, and the return of the per- 
 son or pei-sons duly elected shall be made, as above, to the clerk of the crown in EngJand. 
 
 XXXV. No person not now on the roll of freeholders shall be admitted to claim or to 
 vote at the election for any shire in respect of any subject situate within the limits of any 
 city, burgh, or to%yn entitled to send or to contribute towards sending a member to parlia- 
 ment ; nor shall any person be admitted to claim or to vote in the election for any city, 
 town, or burgh in respect of any subject not situate within the limits of the said city, town, 
 or burgh. 
 
 XXXVI. No sheriff shall be entitled, from and after the passing of this act, to vote at 
 any election for any member of parliament to be holden within the county or combined 
 counties of which he shall be sheriff; and no sheriff substitute, and no sheriff clerk or 
 deputy sheriff clerk, shall be entitled, from and after the passing of this act, to vote or to be 
 elected at any election for a member to serve in parliament for the shire of which lie is the 
 sheriff substitute or sherifl" clerk ; and no town clerk or depute town derk shall be entitled 
 
OF THE LAW OF ENGLAND. 381 
 
 to vote or to be elected for the city, burgh, town, or district in which he is such clerk 5 and 
 no sheriff' substitute, sheriff derk, or town clerk shall, after the passing of this act, directly 
 or indirectly, act as an agent for any candidate in any matter connected with or preparatory 
 to any election for the county or burgh respectively in which such persons shall be respec- 
 tively sheriff substitute, sheriff clerk, or town clerk. 
 
 XXX VIL From and after the end of this present parliament, the eldest sons of Scotch 
 peers shall be entitled to be registered and to vote at all elections for members of parliament 
 for Scotland, and shall also be entitled, though not so registered, to be elected to serve as 
 such members for any county, city, burgh, or town, or district of burghs, in Scotland ; and 
 after the end of this present parliament, no member for any county in Scotland shall be 
 required to be qualified as an elector, or to hold any superiority within such county. 
 
 XXXVI II. If any sheriff, sheriff substitute, sheriff clerk, town clerk, or any person 
 whatsoever, shall vnlfully contravene or disobey the provisions of this act, or any of them, 
 with respect to any matter or thing which such sheriff, sheriff substitute, sheriff clerk, town 
 clerk, or other person is hereby required to do, he shall for such his offence be liable to be 
 sued in the court of session by any registered voter, candidate, member actually returned, 
 or other party aggrieved, for the penal sum of five hundred pounds ; and the jury before 
 whom such action shall be tried may find their verdict for the full sum of five hundred 
 pounds, or for any less sum which the said jury shall think it just that such party defender 
 should pay to such party pursuer ; and the defender in such action being convicted shall 
 pay such penal sum so awarded, with full costs of suit, to the party who may sue for the 
 same, without prejudice, however, to the right of any party aggrieved by the misconduct of 
 any sheriff as returning officer to recover such damages for a false return as he may be en- 
 titled to at common law, or by virtue of any statute now in force : provided always, that every 
 such action shall be raised within four calendar months next after the cause of action has 
 arisen, and that notice in writing shall be given to the defender at least one month before 
 the raising of any such action, signed by the party raising such action, or his agent, and 
 setting forth the place of abode of the party signing the same : provided also, that any such 
 defender against whom any judgment shall have been recovered, in any such action, shall be 
 allowed to plead such judgment as a bar to any other action which may be brought against 
 him for the same matter or thing, and such other action being thereupon dismissed, such 
 defender shall recover his full costs thereof. 
 
 XXXIX. Every person claiming to be registered, shall, at the time of making such 
 claim, pay a fee of two shillings for the use of the sheriff clerk, or to the town clerk receiv- 
 ing such claim ; out of which monies the said clerks respectively shall be obliged to provide 
 all the books, and to perform all the clerk's business necessary for making up the registers, 
 and making copies thereof for the different polling places in the shire or burgh. 
 
 XL. The monies which are now in use to be allowed to the sheriffs in their accounts with 
 tlie exchequer for executing writs for elections, shall continue to be allowed to them on such 
 accounts ; and all halls, rooms, booths, or other places hired, constructed, or prepared 
 for taking the polls, shall be so hired, constructed, or prepared by contract with the can- 
 didates, or, if they cannot agree, by the sheriff clerk, at their joint and equal expense: pro- 
 vided always, that the expense of such hiring or construction at any one polling place for a 
 county shall not exceed the sum of thirty pounds, nor the sum of twenty pounds at any one 
 polling place in any city, burgh, or town ; and the candidates shall further be bound to pay 
 and contribute among them to each poll clerk one guinea per day ; and, in like manner, to 
 contribute and pay a certain fee to each sheriff or sheriff substitute for superintending the 
 polls, the amount of which fee shall in no case exceed the sum of three guineas per day for 
 each such sheriff or substitute ; and the candidates, in all cases where a poll has been de- 
 manded, shall, in like manner, be bound to defray the necessary expenses incurred by the 
 sheriff or sheriflF clerks, or town clerks, in the transmission of precepts, intimations, poll 
 books, or other communications required or enjoined by this act ; and if any person shall be 
 proposed as a candidate without his consent, the pei-sonso proposing him shall be liable to 
 defray his share of all these expenses, in like manner as if he had been a candidate hijn- 
 self. 
 
 XLI. Each sheriff shall be entitled to make a charge for the time and labour employed 
 
382 RISE, PROGRESS, AND IMPROVEMENT 
 
 in investigating and disposing of the claims and objections above specified, either originally 
 m his own county, or there or elsewhere, as a judge of appeal, which charge shall not be 
 more than five guineas for every period of eight hours employed by him or by any assistant 
 sheriif or advocate to be appointed in the manner by this act authorized and directed, ex- 
 clusively, in any such investigations, over and above his or their reasonable travelling ex- 
 penses; and which charge shall be audited and examined in the exchequer, and allowed in 
 whole or in part, as may seem just, in the same manner as other charges hitherto included 
 in the annual accounts of such sheriffs, the said charge to be always stated in exchequer as 
 soon as conveniently may be after the duty is performed, and to be there audited and allowed 
 at the first settlement of each sherifl^s accounts which shall thereafter take place : provided 
 always, that no charge shall, in any case, be allowed for a greater number of hours so em- 
 ployed by such sheriff and by such assistants in originally deciding on the claims in any one 
 county, than thirty periods of eight hours for each such sheriffand assistant respectively. 
 
 XLII. When any sheriff who is hereinbefore required to examine and decide on the 
 claims for registration within his county, or to whom any writ for election is directed, shall 
 be incapacitated from acting by sickness or unavoidable absence, one of his ordinary substi- 
 tutes may act in his stead, provided he hold a substitution specially authorizing him to do so: 
 provided also, that if the sheriffs of the counties of Edinburgh, Lanark, Fife, Forfar, 
 Aberdeen, Perth, Ayr, Inverness, or Renfrew, or Orkney in Shetland, or any of them, 
 shall, after the passing of this act, represent to the lord president of the court of session, that, 
 by reason of the great number of claims of registration presented or likely to be presented 
 in such counties, it will be impracticable for them, without assistance, to dispose of such 
 claims within the period limited by this act; then, and in that case, it shall be competent to 
 the said lord president, being satisfied of the correctness of such representation, and he is 
 hereby required to nominate and appoint one or more other sheriffs or advocates of at least 
 four years' standing, to assist in disposing of the said claims within the said counties, or any 
 of them; and all judgments pronounced by the said assistant sheriffs or advocates shall be 
 liable to be appealed from, as if they had been pronounced by the sheriff' of the county. 
 
 XLIII. The notices required by this act to be given at church doors shall not be neces- 
 sary at any of the churches in the islands of North Uist, South Uist, Barra, Harris, or Eig, 
 in the county of Inverness, nor at any of the churches in the island of Lewis in the county 
 of Ross, nor at any of the churclies in the islands of Tiree, Coil, or Gigha, in the county of 
 Argyle, nor ai any of the churches in the county of Orkney and Shetland, except such as 
 are in what is called the mainland of Orkney and Shetland respectively. 
 
 XL IV. The assessment, collection, and management of the money termed the "rogue 
 money," which is now vested in certain meetings of the freeholders, shall be transferred to 
 the commissioners of supply at their ordinary stated meetings, and they shall be bound to 
 collect and apply it for the same purposes as heretofore. 
 
 XLV. All powers, duties, and functions now vested in or exigible from any meeting of 
 freeholders, by any law or statute in force at the dissolution of this present parliament, shall 
 thereafter be transferred to and vested in the said commissioners of supply, who shall exer- 
 cise and discharge the same at their regular meetings as fully and effectually as the said 
 meetings of freeholders might previously have exercised or discharged them. 
 
 XL VI. The word " sheriff" shall be held to include the word " Stewart;" and the words 
 "sheriff substitute" shall be held to include the words " Stewart substitute;" and the 
 words " shire" or "county" shall be held to include the word " stewartry ; " and the words 
 "sheriff clerk" shall be held to include the words " Stewart clerk," and " sheriff clerk de- 
 pute, and " Stewart clerk depute ;" and the words " town clerk" shall be held to include the 
 words "town clerk depute :-" provided also, that no misnomer or inaccurate description of 
 any person or place in any writing made in the form of any schedule to this act annexed, or 
 in any list or register or notice made under authority of this act, shall in any way prevent 
 or abridge the operation of this act, provided that such person or place shall be so designated 
 in such writing, list, register, or notice, as to be commonly understood : provided also, that 
 no appeal shall be competent to any sheriff or Stewart from any thing vyhich may be done by 
 their substitutes in the execution of this act. 
 
 XI^VII. All laws, statutes, and usages now in force respecting the right of electing the 
 
OF THE LAW OF ENGLAND. 
 
 383 
 
 qualifications of eIectoi"S, and the actual election of members to serve in parliament for that 
 part of Great Britain called Scotland, shall be and the same are hereby repealed in so far as 
 they are inconsistent or at variance with the provisions of this act : provided always, that 
 the same shall be in force in all other respects whatsoever. 
 
 XLVIII. If a dissolution of the present parliament shall take place after the passing of 
 this act, but before the first day of December in the present year, in such case such persons 
 only shall be entitled to vote in the election of members to serve in a new parliament for 
 any county, city, burgh, or town, or district of cities, burghs, and towns, as would have been 
 entitled to be inserted in the respective lists of voters for the same directed to be made under 
 this act if the day of election had been the day for making out such respective lists, and all 
 persons shall be entitled to vote in such election although they may not be registered accord- 
 ing to the provisions of this act, any thing herein contained notwithstanding; and the poll- 
 ing at such election for any county may be continued for fifteen days, and the polling at 
 such election for any city, burgh, or town, or district of cities, burghs, or towns, may be con- 
 tinued for eight days, any thing herein contained notwithstanding. 
 
 SCHEDULES TO WHICH THE PRECEDING ACT REFERS. 
 
 SCHEDULE A. 
 
 Aberdeen 
 Argyle 
 Ayr" 
 Banff- 
 Bute 
 Berwick 
 Caithness 
 Dumbarton 
 Dumfries 
 Edinburgh 
 Fife 
 Forfar 
 Haddington 
 Inverness 
 Kincardine 
 Kircudbright 
 
 COUNTIES TO RETURN ONE MEMBER EACH. 
 
 Lanark 
 
 Linlithgow 
 
 Orkney and Shetland 
 
 Peebles 
 
 Perth, exclusive of the parishes of Tulli- 
 allan, Culross, MuckJiart, Logie, and 
 Fossaway, annexed to Kinross and 
 Clackmannan by schedule B. 
 
 Renfrew 
 
 Roxburgh 
 
 Selkirk 
 
 Stirling, exclusive of the parish of Alva, 
 annexed to Kinross, &c. by schedule B. 
 
 Sutherland 
 
 Wigton 
 
 SCHEDULE B. 
 
 COMBINED COUNTIES, EACH TWO TO RETURN ONE MKMBER. 
 
 Elgin and Nairn. 
 
 Ross and Cromarty. 
 
 Clackmannan and Kinross, together with that part of Perthshire which constitutes the parish- 
 es of Tulliallan, Culross, and Muckhart, and the Perthshire portions of the parishes of 
 Logie and Fossaway, and that part of the shire of Stirling which constitutes the parish of 
 Alva. 
 
 Edinburgh 
 
 SCHEDULE C. 
 
 TOWNS TO RETURN TWO MEMBERS EACH. 
 
 I Glasgow 
 
 Aberdeen 
 
 Paisley 
 
 Dundee 
 
 SCHEDULE D. 
 
 TOWNS 10 RETURN ONE MEMBER EACH. 
 
 Greenock 
 Perth , 
 
384 
 
 RISE, PROGRESS, AND IMPROVEMENT 
 
 SCHEDULE E. 
 
 COMBINED BURGHS AND TOWNS, EACH SET OR DISTRICT JOINTLY TO RETURN 
 ONE MEMBER. 
 
 Kirkwall 
 Wick . , 
 Dornock 
 Dingwall 
 Tain . 
 Cromarty 
 
 Fortrose 
 Inverness 
 Nairn . 
 Forres 
 
 Elgin . 
 
 Cullen 
 
 Banff . 
 
 Inverury 
 
 Kintore 
 
 Peterhead 
 
 Inverbervie . 
 Montrose 
 Aberbrothwick 
 Brechin . . 
 Forfar . . 
 
 Cupar 
 
 St Andrews . . 
 Anstruther Easter 
 Anstruther Wester 
 
 Crail 
 
 Kilrenny . . . 
 Pittenweem . . . 
 
 Dysart . . 
 Kirkaldy . 
 Kinghorn . 
 Burntisland 
 
 Inverkeithing 
 Dunfermline 
 Queensferry 
 Culross . . 
 Stirling . , 
 
 Jointly. 
 
 Jointly. 
 
 Jointly. 
 
 Jointly, 
 
 Jointly. 
 
 Jointly. 
 
 Jointly. 
 
 J 
 
 Renfrew . . 
 Rutherglen . 
 Dumbarton . 
 Kilmarnock 
 Port Glasgow 
 
 Haddington . 
 Dunbar . . 
 North Berwick 
 Lauder . . . 
 Jedburgh . . 
 
 Leith . . 
 
 Portobello 
 
 Musselburgh 
 
 Linlithgow 
 Lanark . 
 Falkirk . . 
 Airdrie . . 
 Hamilton 
 
 Ayr. . . . 
 Irvine . . . 
 Campbelltown 
 Inverary . . 
 01)an . . . 
 
 Dumfries 
 Sanquhar . . 
 Annan . . 
 Lochmaben . 
 Kirkcudbx'ight 
 
 Wigton . . . 
 New Galloway 
 Stranraer . . 
 Whithorn 
 
 9. 
 
 10. 
 
 n. 
 
 12. 
 
 13. 
 
 14. 
 
 } 
 
 } 
 
 Jiinll}'. 
 
 1^ Joint'y. 
 
 Join ly. 
 
 Jointly. 
 
 ► Jointly, 
 
 JoinUy. 
 
 Jointly. 
 
 SCHEDULE F. (Part First.) 
 
 shire or town of I, A. B. [designatioii] hereby claim to be en- 
 
 rolled as a voter in the county [or town] of as proprietor [tenant or occupant] of the 
 
 lands [or houses, feu duties, et celera,] of in the parish [or town] of 
 
 and county of ; and in cases within burgh in support of my claim I produce 
 
 herewith a [disposition, seisin, lease, et cetera, of date, et cetera, as the case may be.] 
 (date.) (Signed) A. R. 
 
 SCHEDULE F. (Part Second.) 
 
 No. lodged with me C. D. schoolmaster of or town clerk of 
 
 in shire, this day of (together with the dispo- 
 
 sition, seisin, lease, et cetera, above written in cases of claims within burghs.) 
 
 (Signed) C. D, 
 
OF THE LAW OF ENGLAND. 
 SCHEDULE G. (No. 1.) for Counties. 
 
 FORM OF REGISTER BOOK TO BE KEPT BY SHERIFF CLERK. 
 
 385 
 
 No. 
 
 Date of 
 Regis- 
 tering. 
 
 Name. 
 
 Calling. 
 
 Proprietor 
 or Tenant. 
 
 Description 
 
 of Property, 
 
 Laud, House, 
 
 Feu Duty, 
 
 &c. 
 
 Name of Place, 
 
 Village, Farm, 
 
 &c. 
 
 County. 
 
 
 
 
 
 
 
 
 
 SCHEDULE G. (No. 2.) for Towns. 
 
 FORM OF REGISTER TO BE KEPT BY TOWN CLERK. 
 
 No. 
 
 Date. 
 
 Najne. 
 
 Calling. 
 
 Proprietor 
 or Tenant. 
 
 House, Ware- 
 house, Shop, 
 &c. 
 
 Street, Lane, 
 or other Place 
 of Residence. 
 
 Parish. 
 
 
 
 1 
 
 
 
 
 
 i 
 
 3C 
 
386 
 
 RISE, PROGRESS, AND IMPROVEMENT 
 
 SCHEDULE H. Part First. 
 
 Shire or town of I, E. F., object to the 
 
 claim of A. B. to be admitted [or to continue on the roll] as a voter for the shire or town of 
 on the following ground ; [here may he stated shortly the ground^ 
 as that property or occupancy not of sufficient value; that the party is not or has ceased to be 
 proprietor, tenant, or occujxint ; that he has not paid taxes ; that he is personally disqualified, 
 as being a minor, a fatuous person, an officer of tlie revenue, et cetera;} and I crave to be 
 heard on the said objection before the sheriff". 
 
 (Bale.) (Signed) E. F. 
 
 SCHEDULE H. Part Second. 
 
 Objections to No. 
 G. H., schoolmaster or town clerk, this 
 
 day of 
 
 (Signed) 
 
 lodged with me, 
 G. H. 
 
 SCHEDULE L 
 
 I, j4. B., do solemnly swear [or affirm] tliat I am the individual described in the register 
 for as J. B. of [here insert description in the same words as 
 
 Contained in the register'^ ; that I am still the proprietor [or occupant] of the property for 
 which 1 am so registered, and hold the same for my own benefit, and not in trust for or at 
 the pleasure of any other person ; and that I have not already voted at this election. 
 
 SCHEDULE K 
 
 I, A. E., do solemnly swear {or affirm) that I have not received, or had, by myself or any 
 person for my use or benefit, any sum or sums of money, office, place, or employment, gift 
 or reward, or any promise or security for any money, office, or gift, in order to give my vote 
 at this election. 
 
 SCHEDULE L. 
 
 Towns where the Writ for Districts is 
 to be proclaimed. 
 
 SherifFs to whom the Writ is to 
 be addressed. 
 
 Leith, for the district to which it belongs .... 
 Wick, for the district to which it belongs . . . 
 Inverness, for the district to which it belongs . . 
 Elgin, for the district to which it belongs .... 
 Montrose, for the district to which it belongs . , 
 Saint Andrews, for the district to which it belongs 
 Kirkaldy, for the district to which it belongs . . 
 Stiriing, for the district to which it belongs . . . 
 Kilmarnock, for the district to which it belongs . 
 Haddington, for the district to which it belongs . . 
 Dumfries, for the district to which it belongs . . 
 Wigton, for the disirict to which it belongs . . . 
 Ayr, for the district to which it belongs .... 
 Falkirk, for the district to which it belongs . . . 
 
 Sheriff" of Edinburgh. 
 Sheriff' of Caithness. 
 Sheriff' of Inverness. 
 Sheriff" of Elgin and Moray. 
 Sheriff' of Forfar. 
 Sheriff" of Fife. 
 Sheriff" of Fife. 
 Sheriff" of Stiriing. 
 Sheriff of Ayr. 
 Sheriff of Haddington. 
 Sheriff" of Dumfries. 
 Sheriff" of Wigton. 
 Sheriff of Ayr. 
 Sheriff of Stirling. 
 
 SCHEDULE M. 
 
 TOWNS TO RETURN TWO MEMBERS EACH. 
 
 Edinburgh. — From a point on the road from Leith to Queensferry which is distant four 
 hundred yards, measured along such road, to the west of the point at which the same meets 
 the Inverleith road at the house called Golden Acre, in a straight line to the north-western 
 comer of the enclosure of John Watson's institution ; thence in a straight line to the second 
 stone bridge, marked No, 2, on the Union canal ; thence in a straight line to the point at 
 which the western wall of the enclosure of the lunatic asylum at Morningside meets the 
 Jordan or Pow burn; thence down the Jordan or Pow burn to a point which is distant one 
 
, OF THE LAW OF ENGLAND. 387 
 
 hundred and fifty yards, measured along such bum, below the arch over the same on the 
 Carlisle road ; thence in a straight line to the summit of Arthur's seat ; thence in a straight 
 line to the point at which the Feeder enters the western side of Lochend loch ; thence in a 
 straight line to the point at which Pilrig street joins Leith walJi ; thence along Pilrig street 
 and the Bonnington road to the point at which the latter meets the road from Leith to 
 Queensferry ; thence along the road from Leith to Queensferry to the point first described. 
 Glasgow. — From the point, on the west of the town, at which the river Kelvin joins the 
 river Clyde, up the river Kelvin to a point which is distant one hundred and fifty yards, 
 measured along the river Kelvin, above the point at which the same is met by the Park 
 wall which comes down thereto from Woodside road ; thence in a straight line to a point on 
 the Great canal which is distant one hundred yards, measured along the Great canal, below 
 Derry bridge ; thence along the Great canal and the Cut of Junction to the bridge over the 
 Cut of Junction on the Stirling road ; thence, eastward, along the Low Garngad road to a 
 point which is distant one hundred and fifty yards, measured along the Low Garngad road, 
 to the east of the bridge over the Grimston bum ; thence in a straight line to a point on the 
 road to Edinburgh by Airdrie which is distant one hundred yards, measured along the said 
 road to Edinburgh, to the east of the point at which the same is joined by the road to Edin- 
 burgh through the village of Westmuir ; thence in a straight line to the point at which the 
 river Clyde is joined by Harvie's dyke ; thence down the river Clyde to the point at which 
 the same is joined by the Polmadie burn ; thence up the Polmadie burn to the point at 
 which the same is joined by the Little Govan bum ; thence up the Little Govan bum to 
 the point at which the same is divided into two branches in coming down from Govan Hill ; 
 thence in a straight line to the eastern extremity of the Butterbiggins road ; thence along 
 the Butterbiggins road, and in a line in continuation of the direction thereof, ^^o the Kin- 
 ninghouse burn ; thence in a straight line to the Shiels Bridge over the Paisley and Ardros- 
 san Canal ; thence in a straight line to the point at which the river CI}de is joined by the 
 Plantation burn ; thence down the river Clyde to the point first described. 
 
 TOWNS TO RETURN ONE MEMBER EACH. 
 
 Aberdeen, — From the point, on the northwest of the town, at which the Scatter burn 
 joins the river Don, down the river Don to the point at which the same joins the sea ; thence 
 along the sea shore to the point at which the river Dee joins the sea ; thence up the river 
 Dee to a point Avhich is distant one hundred yards, measured along the river Dee, above the 
 bridge of Dee; thence in a straight line to the point at which the March between the 
 parishes of Old Machar and Banchory Davenick crosses the Old Dee-side road ; thence, 
 northward, along the march between the parishes of Old Machar and Banchory Davenick, 
 and Old Machar and Newhills, to the point first described. 
 
 PaisleT/,— From the summit of Byres Hill, on the northeast of the town, in a straight 
 line to the point near Knock Hill at which the Renfrew road is joined by a road from 
 Glasgow; thence in a straight line to the summit of Knock Hill; thence in a straight line 
 to the northern gable of the Moss tollhouse on the Greenock road ; thence in a straight line 
 in the direction of the chimney of Linwood cotton mill to the point at which such straight 
 line cuts the Candren bum ; thence up the Candren bum to the point at which the same is 
 joined by the Braidiland burn, at the bridge over the same on the Johnstone road ; thence 
 up the Braidiland burn to a point at which is distant five hundred yards, measured along 
 the Braidiland burn, above the said bridge ; thence in a straight line to Meikleridge bridge 
 over the Candren bum ; thence in a straight line to the point at which the Old Neilston road 
 leaves the New Neilston road ; thence in a straight line to the summit of Dykebar Hill ; 
 thence in a straight line to a point which is one hundred yards due northeast of the summit 
 of Bathgo Hill ; thence in a straight line to the point fii-st described. 
 
 Dundee. — From the point, on the east of the town, at which the shore of the firth of Tay 
 would be cut by a straight line to be drawn from the tower (in Fife) of Mr Dalgleish of 
 Scotscraig, to the point at which the Stobsmuir road is joined by the old road by Stobsmuir 
 
388 RISE, PROGRESS, AND IMPROVEMENT 
 
 and Clepington and the old Craigie road, in a straight line to the said point at which the 
 Stobsmuir road is joined by the old road by Stobsmuir and Clepington and the old Craigie 
 road ; thence, vrestward, along the old road by Stobsmuir and Clepington to the point called 
 King's Ci'oss, at which the several boundaries of the parishes of Dundee, Strathmartin, and 
 Liff meet ; thence in a straight line to a point on the LifFroad, which is distant twelve hun- 
 dred yards, measured along the Liff road, to the west of the point at which the Newtyle 
 road leaves the same ; thence in a straight line drawn due soutli to the shore of the firth of 
 Tay ; thence along the shore of the firth of Tay to the point first described. 
 
 Greenock.' From the point, on the west of the town, at which the shore of the firth of 
 
 Clyde is met by the march between the parishes of Greenock and Innerkip, up the said 
 march to that point thereof which is nearest to the southern point of the ridge of Bow Hill ; 
 thence in a straight line to the said point on Bow Hill ; thence in a straight line to the 
 southern end of the upper east reservoir for supplying Greenock with water; thence in a 
 straight line in the direction of the highest projecting point of Knocknair Hill, to the point 
 near Woodhead quarry, at which such straight line cuts the easternmost of the two rivulets 
 which form the Lady burn ; thence down such rivulet and the Lady bum to the point at 
 which the same joins the firth of Clyde j thence along the shore of the firth of Clyde to the 
 point first described. 
 
 Perth. — From the north-western comer of the North Inch, on the right bank of the river 
 Tay, in a straight line to the bridge on the mill lead at the Boot of Balhousie ; thence in a 
 straight line to the bridge on the Glasgow road over the Scouring burn ; thence in a straight 
 line to the southern comer of the water reservoir of the Depot ; thence in a straight line to 
 the southern corner of the Friarton Pier on the river Tay ; thence across the river Tay, 
 passing to the south of the Friarton island, to the point at which the same is met by the 
 boundary of the respective parishes of Kinfauns and Kinnoul ; thence, northward, along the 
 boundary of the parish of Kinfauns to the point at which the several boundaries of the pro- 
 perties of Kinfauns, Kinnoul, and Bamhill meet ; thence in a straight line to the north- 
 eastern corner of lord Kinnoul's lodge, at the gate of approach to Kinnoul hill ; thence in a 
 straight line to the north-eastern comer of the enclosure of the lunatic asylum ; thence in a 
 straight line to the point at which the Annatty bum crosses the Blairgowrie road; thence 
 down the Annatty burn to the point at which the same joins the river Tay; thence in a 
 straight line to the place first described. 
 
 DISTRICTS TO RETURN ONE MEMBER EACH. 
 1.— WICK DISTRICT. 
 
 Cromarty. — From Samuel's Well, on the southwest of tlie town, in a straight line to the 
 point at which the southem angle of the glebe meets the Inverness road ; thence along the 
 Inverness road to the point at which the same is met by the Den road ; thence in a straight 
 line to the Coal Heugh well ; thence in a straight line in the direction of Clachmalloch Rock 
 to the point at which such straight line cuts the shore of the Cromarty firth ; thence along 
 the shoje of the Cromarty firth to that point thereof which is nearest to Samuel's Well ; 
 thence in a straight line to Samuel's Well. 
 
 Dingwall. — From a point on the shore of the Cromarty firth which is distant one hundred 
 yards, measured along the shore, to the south of the mouth of the canal, in a straight line 
 to a point on the Invemess road which is distant five hundred yards, measured along tlie 
 Inverness road, from the point, near the school-house, at which the same is joined by ano- 
 ther road ; thence in a straight line to a point on the Knockbain burn, which is distant four 
 hundred and fifty yards, measured along the Knockbain bum, to the west of the point at 
 which the same meets the main street of Dingwall ; thence in a straight line to a point on 
 the Drynie road which is distant one hundred yards, measured along the Drynie road, from 
 the point at which the same leaves the new Strathpeffer road ; thence in a straight line, 
 di-awn due east, to the shore of the Cromarty firth ; thence along the shore of the Cromarty 
 firth to the point first described. 
 
 Z)omoc/i.— From the rock called Craig Carnaig, in a straight line to St Michael's Well, 
 
OF THE LAW OF ENGLAND. 889 
 
 close by the road to the Little Ferry ; thence in a straight line to the point at which the 
 road to the mound of Fleet leaves the road to Bonar bridge ; thence in a straight line to the 
 point at which the Black burn joins the Dornoch firth ; thence along the shore of the Dor- 
 noch firth to Craig Carnaig. 
 
 Kirkwall. — From a point on the sea shore which is distant five hundred yards, measured 
 along the shore, to the northeast of the nortli-eastern angle of Cromwell's Fort, ia a 
 straight line to a point on the Carness road which is distant seven hundred yards, measured 
 along the Carness road, to the east of the point at which the same leaves the Birston road ; 
 thence in a straight line to a point on the Holm road, which is distant three hundred yards, 
 measured along the Holm road, to the south of the point at which the same leaves the Deer- 
 ness road ; thence in a straight line to a point on the Scapa road which is distant four hun- 
 dred yards, measured along the Scapa road, to the south of the point at which the same 
 leaves the Stromness road ; thence in a straight line to the western end of the Air Embank- 
 ment ; thence along the Air Embankment, and along the sea shore, to the point first 
 described. 
 
 Tain. — From St Mary's Well, on the northwest of the town, in a straight line through 
 the Raven's Well to a point five hundred yards beyond the same ; thence in a straight line, 
 drawn due southeast, to the Scotsburn road ; thence in a straight line, drawn due east, to 
 the Inverness road ; thence in a straight line, drawn due northeast, to the river of Tain ; 
 thence down the river of Tain to tlie point at which the same joins the sea ; thence along 
 the sea shore to St Mary's Well. 
 
 Wick. — From the point, on the northeast of the town, at which the Papigoe burn joins 
 the sea, in a straight line to a point on the Huna road which is distant two hundred and 
 fifty yards, measured along the Huna road, to the north of the point at which the same 
 leaves the Kettleburn road ; thence in a straight line to the north-western corner of the 
 Glebe •, thence in a straight line to the point at which the Leutskerry burn joins the river 
 Wick •, thence up the Leutskerry burn to the point at whiph the same meets the Thurso 
 road ; thence in a straight line to the point at which the Inverness road would be cut by a 
 straight line to be drawn thereto due west from the rock called " The Old Man of Wick ;" 
 thence in a straight line to the Old Man of Wick ; thence along the sea shore to the point 
 first described. 
 
 2. — INVERNESS DISTRICT. 
 
 Forres. — From Sueno's Stone, on the northeast of the town, in a straight line to the point 
 at which two roads meet at the north-eastern corner of that part of the property of the burgh 
 of Forres which is called "TheCluny Hills;" thence, southward, along the boundary of 
 the property of the burgh to the point at which the same meets the Rafford road ; thence in 
 a straight line to a point on the Altyre road which is distant fifty yards, measured along the 
 Altyre road, to the south of the point at which the same leaves a road to the mills of Burds- 
 yards ; thence in a straight line to a point on the Nairn road which is distant five hundred 
 yards, measured along the Nairn road, to the west of the bridge of Forres ; thence in a 
 straight line to a point on the burn of Forres, which is distant four hundred yards, measured 
 along the burn of Forres, below the Lee bridge ; thence in a straight line to Sueno's Stone. 
 
 Fortrose From a point on the shore of the Moray firth, which is distant two hundred 
 
 3ards, measured along the shore, to the west of the pier of Fortrose, in a straight line to St 
 Boniface's Well *, thence in a straight line to the point at which the Rosemarkie bum would 
 be cut by a straight line to be drawn thereto due northeast from St Boniface's Well ; thence 
 in a straight line to the rock caUed the Lady's Bathing House; thence along the shore of tlie 
 Moray firth to the point first described. 
 
 Inverness. — From the Clachnaharry pier in a straight line to the point at which the 
 Caledonian canal would be cut by a straight line to be drawn from the Clachnaharry pier 
 to the southern extremity of the Upper Ness island ; thence in a straight line to a point 
 which is two hundred and fifty yards due west of the point at which the Altna Skiah burn 
 joins the river Ness ; thence in a straight line to the point at which the Altna Skiah burn 
 
•^t»0 RISE, PROGRESS, AND IMPROVEMENT 
 
 joins the river Ness ; thence up the Altna Skiah bum to a point which is distant three hun- 
 dred and fifty yards, measured along the Altna Skiah burn, above the bridge over the same 
 on the road to Fort Augustus ; thence in a straight line to the point at which the road from 
 Muirfield to King's mills leaves the old Edinburgh road ; thence in a straight line, drawn 
 due north, to the Nairn road ; thence in a straight line to that point on the shore of the 
 Moray firth wliich is due north of the northern angle of Cromwell's Fort ; thence along 
 the shore of the Moray firth to the Clacbnaharry pier. 
 
 Nairn — From the point, on the northwest of the town, at which the Western march of 
 the ToAvn's Links meets the shore of the Moray firth, in a straight line to a point on the 
 Inverness road which is distant one hundred yards, measured along the Inverness road, to 
 the south of the point at which the road to the Grove leaves the same •, thence in a straight 
 line to the sluice of the mill dam of the Nairn mills ; thence in a straight line to a point on 
 the Forres road which is distant six hundred jards, measured along the Forres road, from 
 the Bridge of Nairn ; thence in a straight line, drawn due north to the shore of the Moray 
 firth ; thence along the shore of the Moray firth to the point first described. 
 
 3.— ELGIN DISTRICT. 
 
 Eanf.'— From the rocks on the west of the to^vn, called The Little Tumblers, in a straight 
 line, drawn due south, to a point on the Gallow Hill, eight hundred and fifty yards distant ; 
 thence in a straight line to the point at which the CoUeonard road leaves the Sandyhills 
 road ; thence in a straight line to the bridge over the river Dovern leading from the town 
 of Banfi'to Macduff; thence up the river Dovern to a point which is distant two hundred 
 yards, measured along the river Dovern, above the said bridge ; thence in a straight line to 
 a point on the road from Macduff to Aberdeen which is distant two hundred yards, measured 
 along such road, to the south of the point at which the same is crossed by the De^iiill 
 road ; thence in a straight line to the mineral well of Tarlair ; thence along the shore of the 
 Moray firth to the Little Tumblers first described. 
 
 Cullen. — From the bridge over the burn of CuUen, on the Fochabers road, in a straight 
 iiiie to the point at which Slack's road meets the Seafield road ; thence in a straight line to 
 the point at which the Deskford road leaves the Banff road ; thence in a straight line to the 
 point at which the Loggie road would be cut by a straight line to be drawn thereto due south 
 from the rock called the Maiden Paps; thence in a straight line to the Maiden Paps ; thence 
 along the sea shore to the point at which the same meets the burn of Cullen ; thence up the 
 burn of Cullen to the bridge over the same on the Fochabers road. 
 
 Elgin.' — From the bridge on the Fochabers road over the Ta)ack burn, up the Tayack 
 burn, to the point at which the same would be cut by a straight line to be drawn thereto 
 due east from Palmer Cross bridge; tlience in a straight line to Palmer Cross bridge; 
 thence in a straight line to the point at which the river Lossie would be cut by a straight 
 line to be drawn from Palmer Cross bridge to Sheriff Mill bridge; thence down the river 
 Lossie to the bridge over the same on the road from Old Mills to Quarry Wood; thence 
 along the road from Old Mills to Quarry Wood, to the point at which the same joins the 
 road by Morristown to Lossiemouth ; thence down the road by Morristown to Lossiemouth, 
 to the point at which the same meets (at the cross of Bishop Mill) another road to Lossie- 
 mouth ; thence in a straight line to the bridge first described. 
 
 Inverury. — From the bridge over the river Ury at the mill of Keith-hall, in a straight 
 line through the fifteentli mile stone on the Aberdeen road, to a point four hundred yards 
 beyond the same ; thence in a straight line to the point at which the road to Howford leaves 
 the Huntly road; thence in a stnught line to the Upper Ford of Howford, on the river 
 Ury ; thence down the river Ury to the bridge first described. 
 
 Kintore. — From the point, on the southeast of the town, at which the bum of Tuach 
 joins the river Don, up the burn of Tuach to the point at which the same is joined by the 
 Torry burn ; thence up the Torry burn to the bridge over the same on the Aberdeen 
 road ; thence in a straight line to the point at which the Hallforest road leaves the road 
 to the Sheepcotes; tlience in a straight line to the bridge over the Aberdeenshire canal 
 
OF THE LAW OF ENGLAND. 391 
 
 near the farm of Tilty, thence in a straight h'ne to the point of the island in the lands of 
 Balbithan, near the glebe; thence along the river Don, taking the northermost branch 
 thereof at the points at which the same is divided into two branches, to tiie point first 
 described. 
 
 Pelei-head. — From the north-western angle of the Salmon House at the mouth of the 
 river Ugie, and on the northwest of the town, in a straight line to the point near Clarke 
 Hill, at which the Old Kinmundy road is joined by a road leading therefrom into the 
 Auchtygall road ; thence along the road so leading into the Auchtygall road to the point 
 at which the same joins the Auchtygall road ; thence eastward, along the Auchtygall road, 
 and in a line in continuation of the direction thereof, to the sea shore ; thence along the sea 
 shore to tliat point thereof which is nearest to the point first described ; thence in a straight 
 line to the point first described. 
 
 4. — MONTROSE DISTRICT. 
 
 Aberbrothwick. — From the point at which the sea shore would be cut by a straight line to be 
 drawn from the Bell Rock light-house to the point, near Timmer Green, at which the road 
 to Hospital Field leaves the Arbirlot road, along the said straight line to the said point at 
 which the road to Hospital Field leaves the Arbirlot road; thence, northward, along the 
 Arbirlot road to the point at which the same is met by a road leading thereto from the 
 Forfar road which is distant one hundred and fifty yards along the Forfar road to the 
 north of the first mile stone from Aberbrothwick, at the old toll house; thence in a straight 
 line to the bridge over the Feeder of the Tarry burn on the INIontrose i-oad ; thence along 
 the said Feeder to the point at which the same reaches the spring at Old Tarry ; thence 
 down the Tarry burn to the point at which the same joins the sea ; thence along the sea 
 shore to the point first described. 
 
 Brechin. — From the point, on the south of the town, at which the Skinner's burn joins 
 the South Esk river, down the South Esk river to the West Den of Leuchland ; thence 
 up the hollow of the West Den of Leuchland, and up Barrie's burn, to the point, near the 
 source of Barrie's bum, at which the several boundaries of the properties of Caldhame, 
 Pitforthie, and Unthank meet; thence in a straight line, in a westerly direction, to the 
 point at which the several boundaries of the properties of Maisondieu and Cookston, and 
 Mr Mitchell's land meet; thence in a southwest direction, along the boundary of the 
 Maisondieu property to the point at which the same meets the Menmuir road ; thence in 
 a straight line to the westermost point at which the Skinner's burn crosses the Forfar 
 road ; thence down the Skinner's burn to the point first described. 
 
 Forfar. — From the Inch-ma-coble Stone, on the southern bank of the Loch of Forfar, in 
 a straight line to the point at which the Orchard loan joins the Perth road ; thence in a 
 straight line through the point at which the Westfield loan joins the Dundee road to the 
 Balminshanner march ; thence in a straight line to the Blind Well at the junction of the 
 road from Forfar to Lower with the Old Kirk road from Lower ; thence in a straight line 
 to the spring on the Arbroath road at the junction of the boundaries of Pitruchie and the 
 poor's ground ; thence in a straight line to the point at which the old road to Brechin leaves 
 the east road to Carseburn : thence in a straight line to the point at which the west road to 
 Carseburn leaves the Hassockwell road ; thence in a straight line to the point at which the 
 new Kirriemuir road leaves the new Brechin road ; thence in a straight line to the Inch-roa- 
 coble Stone. 
 
 Inverbervie. ^Yrom. the point, on the east of the town, at which the Bervie bum joins the 
 sea, up the Bervie burn to the point at which the same is met by the boundary of the parish 
 of Arbuthnot; thence, southward, along the boundary of the parish of Arbuthiiot to the 
 point (near Dendodrum) at which the same meets the boundary which separates the town 
 lands from the property of Mr Farquhar ; thence in a straight line to the point at which 
 the several boundaries of the Glebe land , the land of the Town's Muir, and the property of 
 Mr Farquhar, meet ; thence in a straight line through the south-western corner of the old 
 castle of Hall Green to the sea shore ; thence along the sea shore to the point first described. 
 
 Montrose.— 'Yiom. the point, on the northeast of the town, at which the town's loaning 
 
392 RISE, PROGRESS, AND IMPROVEMENT 
 
 meets the sea shore, westward, along the town's loaning, and in a line in continuation of the 
 direction thereof, to the point at which such line cuts the Laurencekirk road ; thence in a 
 straight line to the bridge over the burn of Tayock on the Brechin road; thence down the 
 channel of the bum of Tayock at low water to the point at which the same joins the south 
 Esk river; thence down the south Esk river, including the Rossie Island, to the point at 
 which the same river joins the sea ; thence along the sea shore to the point first described. 
 
 O. — ST ANDREWS DISTRICT. 
 
 Easter Anstruther. — From the point at which the Dreel burn joins the Firth of Forth, 
 up the Dreel bum to the point at which the mill dam of the mill of Anstruther branches 
 off; thence in a straight line in the direction of the spire of Kilrenny church to the point at 
 which such straight line cuts the Cunzie burn ; thence in a straight line to the point at 
 which the road leading to St Andrews (being the march between the lands of Renny Hill 
 and the barony of Anstruther) leaves the turnpike road to Upper Kih'enny ; thence in a 
 straight line to the point at which the Cellardj ke burn enters the Firth of Forth ; thence 
 along the shore of the Firth of Forth to the point first described. 
 
 Wester Anstruther. — From the rock called tlie Cuniger Stone in a straight line to the 
 point at which the Dreel bum crosses the road from Pittenweem to Grangemuir farm ; 
 thence down the Dreel bum to the point at which the same joins the Firth of Forth ; thence 
 along the shore of the Firth of Forth to the Cuniger Stone. 
 
 Crail.< — From a point on the shore of the Firth of Forth which is distant five hundred 
 yards (measured along the shore) to the southwest of the Almond Rocks, in a straight line, 
 drawn due northwest, to the point at which such straight line cuts the road to Anstruther 
 and Kilrenny ; thence in a straight line to the point at which the St Andrews' road would 
 be cut by a straight line to be drawn thereto from North Ber^vick Law through the point last 
 described ; thence in a straight line to a point on the Craighead road, which is distant five 
 hundred yards (measured along the Craighead road) to the northeast of the bridge on the 
 same, over the Lammas Green burn ; thence in a straight line in the direction of the north- 
 eastermost point of the Rome Rocks until it meets the shore of the Firth of Forth ; thence 
 along the shore of the Firth of Forth to the point first described, 
 
 Cupar. — From a point on the southern branch of the river Eden which is distant four 
 hundred jards (measured along such river) below the new bridge, in a straight line, through 
 a point on the Dundee road which is distant two hundred and fifty yards (measured along 
 the Dundee road) to the east of the mile stone marked miles from Cupar and twenty-two 
 miles from Pettycur, to a point two hundred and fifty yards distant from the said point on 
 the Dundee road ; thence in a straight line to the north-western comer of the garden wall of 
 Dalziel lodge on the old Dundee road ; thence in a straight line to the bridge over the St 
 Mary's burn on the Newburgh road ; thence in a straight line to the point at which the 
 Ferrybank road would be cut by a straight line to be drawn from the Hopetoun monument 
 to the winter or byewater sluice at the westem end of Anderson s spinning mills ; thence in 
 a straight line to the said sluice ; thence in a straight line to the mile stone on the Edin- 
 burgh road marked one mile from Cupar and twenty-one miles from Pettycur; thence in a 
 straight line to the point first described. 
 
 Kilrenny. — From the point at which the Cellardykes burn joins the Firth of Forth in a 
 straight line to the point at which the road leading to St Andrews (being the march between 
 the lands of Rennyhill and the barony of Anstruther) leaves the turnpike road from Anstru- 
 ther to upper Kilrenny ; thence in a straight line to the Skeith stone ; thence in a straight 
 line to the point at which the Gelly bum meets the well of Spa burn ; thence in a straight 
 line to a point on the Crail road which is distant four hundred yards (measured along the 
 Crail road) to the fiortheast of the bridge on the same over the Gelly bum; thence in a 
 straight line to a point on the Gelly burn which is distant three hundred yards (measured 
 along the Gelly burn) below the said bridge on the Crail road; thence down the Gelly bum 
 to the point at which the same joins the Firth of Forth ; thence along the shore of the Firth 
 of Forth to the point first described. 
 
 Pittenweem.'— From, a point on the south v/est cf the town, on the sea shore, distant from 
 
OF THE LAW OF ENGLAND. 393 
 
 the Sandy Craig six hundred j'ards (measured westwards along the sea shore,) in a straight 
 line drawn to a point on the Mires or Dreel bum six hundred yards (measured up the course 
 thereof) above the point where it is crossed by tiie road to Carnbee and St Andrews ; thence 
 down the Mires or Dreel burn to the point at which the same crosses the road to Grange- 
 muir farm •, thence in a straight line to the rock called the Cuniger Stone; thence along the 
 shore of the Firth of Forth to the point first described. 
 
 St Andrews — From tlie point at which the Swilkin bum joins the sea, up the Swilkin 
 bum, to a point which is distant three hundred yards (measured along the Swilkin bum) 
 above the bridge over the same on the Cupar road ; thence in a straight line through a 
 point on the Kinghom road, which is distant four hundred yards (measured along the 
 Kinghorn road) from the point at which the same leaves Argyle street, to the point at 
 which such straight line cuts the Kinness burn ; thence in a straight line to the bridge over 
 the St Nicholas burn on the Crail road ; thence in a straight line, drawn due east, to the 
 sea shore; thence along the sea shore to the point first described. 
 
 6.— KIRKALDY DISTRICT. 
 
 Burntisland — From the northern extremity of the dam dyke of the Sea mills, in a 
 straight line, drawn due north, to the road from Aberdour to Kirkaldy ; thence in a straight 
 line to a point on the road from Aberdour to Kirkaldy, which is distant three hundred 
 yards (measured along such road) to the east of the point at which the same is met by the 
 road from Burntisland to Kinross ; thence in a straight line, in the direction of the eastem 
 extremity of Inchkeith, to the point at which such straight line cuts the shore of the Firth 
 of Forth; thence along the shore of the Firth of Forth to the point first described. 
 
 Di/sart.— From the point, on the south of Pathhead, at which the East bum joins the 
 Firth of Forth, up the East burn to that point thereof which is nearest to the eastem angle 
 of the engine house of the Dunnikier colliery ; thence in a straight line to the point at 
 which the road from Parkhead to Mitchelston's farm meets the road from Gallatown to 
 Duimikier ; thence in a straight line to a point on the Cupar road, which is distant three 
 hundred and fifty yards (measured along the Cupar road) to the northwest of the point 
 (in the street of Gallatown) at which the road from Gallatown to West Wemyss leaves the 
 same ; thence in a straight line to the cliff above the Pissing Mare well ; thence along the 
 shore of the Firth of Forth to the point first described, 
 
 Kinghorn.' — From the rock called Hoch-ma-toch, in a straight line to the point at which 
 the road to Kirkaldy from Burntisland joins the road to Kirkaldy from Pettjcur ; thence in 
 a straight line to the outlet from the loch of Kinghorn called the Gullet Sluice; thence in 
 a straight line to the rock on the shore of the Firth of Forth above the Well of Spa ; 
 thence in a straight line to the Well of Spa ; thence along the shore of the Firth of Forth to 
 the rock Hoch-ma-toch. 
 
 Kirkaldyj — From the point, on the northeast of the town, at which the East bum joins 
 the Firth of Forth, up the East burn to that point thereof which is nearest to the eastem 
 angle of the engine house of the Dunnikier colliery ; thence in a straight line, in the direc- 
 tion of the spire of Abbotshall church, to the point at which such straight line cuts a road 
 from Kirkaldy to Raith and Auchtertool ; thence along the said road to Raith and Auchter- 
 tool, to the point (opposite Raith gate) at which the same is joined by the road from West 
 Bridge to Auchtertool; thence in a straight line to the western comer of the old quarry 
 above the West mills of Linktown, and on the left bank of the West bum ; thence in a 
 straight line to a point on the Kinghorn road, which is distant five hundred yards 
 (mecisured along the Kinghorn road) to the south of the point (in West Bridge Town) at 
 which the Queensferry road leaves the same ; thence in a straight line, in the direction of 
 North Berwick Law, to the point at which such straight line cuts the shore of the Firth of 
 Forth ; thence along the shore of the Firth of Forth to the point first described. 
 
 7. STIRLING DISTRICT. 
 
 Cw/ross.— From the point, close to the shore, at which the Dean bum crosses the high 
 
 3 I) 
 
394 RISE, PROGRESS, AND IMPROVEMENT 
 
 roud to Kincardine, up the Dean bum to that point thereof which is nearest the ruins of 
 the old church ; thence in a straight line to the point at which the road to Dunfermline by 
 the Abbey lodge leaves the road fiom Culross church to Kincardine ; thence along the said 
 road to Dunfermline, to a point which is distant seven hundred yards (measured along such 
 road) from the point last described ; thence in a straight line, through the stone which marks 
 the eastern extremity of the royalty of the burgh, to the shore of tlie Firth of Forth ; ttience 
 along the shore of the Firth of Forth to the point first described. 
 
 Dunfermline. — From the point on the south of the town, near the southern end of St 
 Leonards, at which the Queensferry road leaves the Burntisland road, in a straight line 
 to the head of the mill dam of the Brucefield spinning mills-, thence in a straight line to 
 the point at which the Townhill road is joined by a road from Headwell ; thence in a 
 straight line to a point on the Crieff road, which is distant one hundred and fifty yards 
 (measured along the Crieff road) to the north of the bridge on the same over the Blair 
 Castle or Broomliill burn; thence in a straight line to the bridge over the Baldridge burn 
 at Blackburn ; thence in a straight line to the point at which the Elgin railway crosses the 
 Carnackroad; thence in a straight line to Urquhart bridge on the Stirling road; thence 
 in a straight line to the bridge over the Spittal burn, on the Limekilns road ; thence in a 
 straight line to the point first described". 
 
 Inverkeit/dng — From the point, on the west of the town, at which the Seggs bum joins 
 the sea, up the Seggs burn to a point which is distant one hundred yards (measured along 
 the Seggs bum) above the bridge over the same on the Queensferry road : thence in a 
 straight line to a point on the Dunfermline road, which is distant three hundred jards 
 (measured along the Dunfermline road) from the point at which the same leaves the High 
 street of Inverkeithing ; thence in a straight line to tlie bridge over the Inverkeithing bum 
 on the Perth road; thence in a straight line through the Flagstaff near the East Ness to 
 the sea shore ; thence along the sea shore to the point first described. 
 
 Qtieensferry. — From a point on the shore of the Firth of Forth, which is distant three 
 hundred yards (measured along the shore) to the east of the Newhalls pier, in a straight 
 line, in a southerly direction, drawn from the eastern extremit)' of Inch Garvie, through the 
 point last described, to a point which is one hundred yards beyond the middle of the Edin- 
 burgh road; thence in a straight line to the south-eastern coiner of the reservoir; thence in 
 a straight line to the Dovecote Park well; thence in a straight line to the point at which 
 the Echland bum crosses the road to Echland and Linlithgow ; thence down the Echland 
 bum, to the point at which the same joins the Firth of Forth ; thence along the shore of 
 the Firth of Forth to the point first described. 
 
 Stirling. — From the point, on the east of the town, at which the Town bum joins the 
 river Forth, up the river Forth to the point at which the same is joined by the Kildean 
 bum ; thence up the Kildean burn, to the point at which the same reaches the dam of 
 the Kildean mill ; thence in a straight line to the point opposite the lodge of Christian 
 Bank, at which the road to Touch and Gartur leaves the road to Murray's Hall ; thenee in 
 a straight line to the point at which the road from Cambusbarron to St Ninians is joined by 
 a road from Newhouse and Torbrecks ; thence in a straight line to a point on the old Glas- 
 gow road, which is distant five hundred jards (measured along the Glasgow road) to the 
 south of the point at which the Glasgow road leaves the Edinburgh road ; thence in a 
 straight line to a point on the Edinburgh road, which is distant five hundred yards 
 (measured along the Edinburgh road) to the southeast of the point at which the same 
 leaves the Glasgow road ; thence in a straight line, in the direction of Cambuskenneth 
 abbey, to the point at which such straight line cuts the Pelstream ; thence along the Pel- 
 stream, and along the continuation thereof, called the Town burn, to a point which is distant 
 five hundred yards (measured along the Town burn) to the south of the bridge over the 
 same at Hadaway's carpet factory ; thence in a straight line to the point first described. 
 
 8.— KILMARNOCK DISTRICT. 
 
 Diimbarion. — From the point, on the southeast of the town, at which the Gruggies 
 burn joins the Firth of Clvde, up the Gruggies burn to the bridge on tlie road from Dum- 
 
OF THE LAW OF ENGLAND. 395 
 
 b.Mtoii to Glasgow; thence in a straight line, drawn due northeast, to the road from Bar 
 toll to Glasgow; thence, northward, along the road from Bar toll to Glasgow to the point 
 at which the same meets the Bonhill road; thence, northward, along the Bonhiil road to 
 a point which is distant two hundred yards (measured along the Bonhill road) from the 
 point last described ; thence, westward, in a straight line to a point on the Helensburgh 
 road which is distant two hundred and fifty jards (measured along the Helensburgh road) 
 from the point at which the same leaves the Luss road ; thence in a straight line, drawn due 
 southwest, to the shore of the Firth of Clyde ; thence along the shore of the Firth of Clyde 
 to the point first described. 
 
 Kilmarnock. — From the point, on the south of the town, at which Kilmarnock water 
 joins the river Irvine, in a straight line to a point on the Irvine road which is distant 
 three hundred and fifty yards (measured along the Irvine road) to the west of the point at 
 which the same leaves Grange street ; thence in a straight line to the point at which the 
 road to Hill Head leaves the Kilmaurs road; thence in a straight line, through the 
 summit of the Bonfire knowe, to the Kilmarnock water ; thence in a straight line to the 
 bridge over the Mill burn on the Mauchline road; thence down the Mill bum to the 
 point at which the same joins the river Irvine ; thence in a straight line to the Bell's Land 
 bridge on the road from Riccarton to Galston ; thence in a straight line to the point called 
 Witch Knowe, at which two roads meet ; thence in a straight line to the bridge over the 
 Maxholm burn on the Air road ; thence down the Maxholm bum to the point at which 
 the same joins the river Irvine ; thence down the river Irvine to the point first described. 
 
 Renfrew.' — From the Milbum bridge over the Pudzeoch bum on the Glasgow road, in 
 a straight line to a point up the Pudzeoch burn which is distant three hundred yards in a 
 straight line from the said bridge; thence in a straight line to a point on the Greenock 
 road which is distant two hundred and fifty yards (measured along the Greenock road) 
 from the point at which the same leaves the Paisley road ; thence in a straight line to a 
 point on the river Clyde, which is distant three hundred yards (measured along the river 
 Clyde) below the point at which the same is joined by the Canal ; thence along the river 
 Clyde to the point at which the same is joined by the Canal ; thence along the Canal to the 
 point at which the same is joined by the Pudzeoch burn ; thence along the Pudzeoch bum 
 to the bridge aforesaid. 
 
 Rut herglen— From the point at which the river Clyde is joined by the Polmadie bum, 
 up the river Clyde, to Dalmarnock bridge ; thence in a straight line through the point at 
 whi(!h the road from Dalmamock bridge to Muirkirk leaves the road from Dalmarnock 
 bridge to Hamilton, to the point at which such straight line reaches the southern road 
 from Rutherglen to Hamilton; thence in a straight line to a point in the Castlemilk road 
 which is distant seven hundred yards (measured along the Castlemilk road) from the point 
 at which the same joins the main street of Rutherglen; thence in a straight line to a point 
 on the Newhouse road, which is distant three hundred yards (measured along the New- 
 house road) from the point at which the same leaves the Hangingshaws road ; thence in 
 a straight line to the bridge over the Polmadie bum on the Glasgow road; thence down 
 the Polm^adie burn to the point first described. 
 
 Port Glasgow. — From the point on the shore, west of the town, where Devols bum en- 
 ters the Firth of Clyde, up the said burn to the waterfall in Devols glen ; thence in a 
 straight line to a point in the Mill Dam bum which is one thousand yards, measured along 
 the same, above the point where it enters the Cl}de; thence in a straight line to a point on 
 the boundary between the parishes of Port Glasgow and Kilmalcolm which is distant eight 
 hundred yards, measured along the said boundary, from the point where it meets the Clyde : 
 thence down the said boundary to its termination on the shore ; thence west along the shore 
 to the point first described. 
 
 9. HADDINGTON DISTRICT. 
 
 North Bcn(7C/t.— From the Yellow Craig in a straight line to the point rU which the 
 
396 RISE, PROGRESS, AND IMPROVEMENT 
 
 Dunbar road would be cut by a straiglit line to be drawn thereto from the Isle of May 
 lighthouse through the Yellow Craig; thence in a straight line to a point two hundred 
 yards to the south of the middle of the Edinburgh road in the direction of a line drawn from 
 the westermost point of Craig Leith through the eastermost point of the rock called 
 Craig-in- Touch or Powart rock; thence in a straight line, in the direction of the said 
 eastermost point of the rock called Craig-in- Touch or Powart rock, to the point at which 
 such straight line cuts the shore of the Firth of Forth ; thence along the shore of the Firth 
 of Forth to the Yellow Craig. 
 
 Dunbar. — From the point on the southeast of the town at which the eastern boundary 
 of the town land meets the sea coast, along the eastern boundary of the town land, to the 
 point at which the same meets the Berwick road ; thence in a straight line, in the direction 
 of the Hopetoun monument near Haddington, to the point at which such straight line cuts 
 the road from Bowerhouse to Belhaven •, thence along the road from Bowerhouse to Belhaven, 
 to the point at which the same meets the Belhaven burn ; thence down the Belhaven bum 
 to the point at which the same reaches the sea ; thence along the sea coast to tlie point first 
 described. 
 
 Haddington.'^From a point on the Dimbar road, which is distant two hundred yards, 
 (measured along the Dunbar road) to the east of the point at which the Athelstonford road 
 leaves the same, in a straight line to the north-eastern comer of the burial ground of St 
 Martin's chapel ; thence along the lane which leads to St Martin's chapel from the More- 
 liam road, to the point at which such lane joins the Moreham road ; thence in a straight line 
 to a point on the Gifford road, which is distant two hundred yards (measured along the 
 Giflbrd road) to the south of the point at which the same leaves the Moreham road ; thence 
 in a straight line to the point at which the river Tyne would be cut by a straight line to be 
 drawn from the point last described to the northern end of Waterloo bridge ; thence up the 
 river Tyne to the Burgh milldam ; thence in a straight line to a point on the Pencaitland 
 road, which is distant five hundred jards (measured along the Pencaitland road) to the west 
 of the point at which the same leaves the High street of Haddington ; thence in a straight 
 line to the north-western comer of the premises of Bellevue, the westermost of the Gallow 
 Green feus ; thence in a straight line to the point at which the road from Whisky row, 
 by the eastern side of the glebe, is met by a cross road leading therefrom by Goatfield to the 
 Athelstonford road ; thence along the said cross road to the point at which the same joins 
 the Athelstonford road ; thence in a straight line to the point first described. 
 
 Jedburgh. — From the flour mill bridge over the river Jed, on the northeast of the town, 
 in a straight line to the point at which the footpath from Timpen Dean joins the Totches 
 Baulk road ; thence westward, along the Totches Baulk road to the point at which the same 
 meets the Tudhope Loaning ; thence in a straight line to a point on the Hawick road, 
 which is distant three hundred yards (measured along the Hawick road) to the southwi-st 
 of the north-western angle of the enclosure of the castle; thence in a straight line to the 
 Inchbonnie or second bridge over the river Jed ; thence in a straight line to the point at 
 which the new road to Oxnam joins the old road to Oxnam; thence in a straight line to tlie 
 said flour mill bridge. 
 
 Lauder. — From a point on the Kelso road which is distant six hundred yards (measured 
 along the Kelso road) from the church of Lauder, in a straight line to a point on the 
 Lauder burn, which is distant three hundred and fifty yards (measured along the Lauder 
 burn) below the bridge over the same on the road to Woodhead and Gattonside; thence up 
 the Lauder burn to the said bridge ; thence in a straight line to a point on the Washing 
 bum, which is distant two hundred yards (measured along the AVashing bum) above the 
 bridge over the same on the Edinburgh road ; thence down the Washing burn to the 
 point at which the same meets the park wall of Thirlestane ; thence eastward, along the 
 park wall of Thij'lestane to the point at which the same reaches the Kelso road ; thence 
 along the Kelso road to the point first described. 
 
OF THE LAW OF ENGLAND. 397 
 
 10. — LEITH DISTRICT. 
 
 Leitk.— From the point at which the shore of the Firth of Forth would be cut by a 
 straight line to be drawn thereto from the spire of the Tron church in Edinburgh through 
 the point at which the Feeder joins the western side of Lochend loch, in a straight line^to 
 the said point at which the Feeder joins the western side of Lochend loch ; thence in a 
 straight line to the point at whicli Pilrig street joins Leith walk ; thence along Pilrig 
 street and the Bonnington road to the point at which the latter joins the Queensferry road ; 
 thence westward, along the Queensferry road to a point which is distant four hundred yards 
 (measured along the Queensferry road) to the west of the point at which the same meets 
 the Inverleith road at the house called Golden Acre ; thence in a straight line to the point 
 at which the Wardie burn joins the Firth of Forth ; thence along the shore of the Firth of 
 Forth to the point first described. 
 
 Musselburgh — From the point at which the Magdalene burn joins the Firth of Forth, 
 up the Magdalene burn to a point which is distant fifty yards (measured along the Mag- 
 dalene burn) above Magdalene bridge-, thence in a straight line, in the direction of the 
 spire of Inveresk church, to the point at which such straight line cuts the river Esk; thence 
 in a straight line to a point in the road from Newbigging to Inveresk, which is distant two 
 hundred yards (measured along such road) to the south of the point (in the street of New- 
 ^J&oJ"g) at which the same leaves the road from Newbigging to Haddington and Preston- 
 pans; thence in a straight line through the seventh mile stone on the road from Edinburgh 
 to Haddington, to the Ravenshaugh burn ; thence down the Ravenshaugh burn to the 
 point at which the same joins the Firth of Forth ; thence along the shore of the Firth of 
 Forth to the point first described. 
 
 Portobello. — From the fountain of Saltpans on the Musselburgh road, southward, in a 
 straight line (in the direction of a straight line drawn from the east end of Inchkeith) to a 
 point one hundred and fifty yards distant ; thence in a straight line, in the direction of 
 Nelson's monument on the Calton hill, to the point at which such strjyght line cuts the 
 Duddingston road ; thence northward, along the Duddingston road, to the point at which 
 the same meets the Edinburgh road ; thence in a straight line to the point at which the 
 shore of the Firth of Forth would be cut by a straight line to be dmwii thereto from the 
 summit of Arthur's Seat through the point last described, thence along the shore of the 
 Firth of Forth to the point first described. 
 
 11 FALKIRK DISTRICT. 
 
 Airdrie. — From the bridge over the South Bum on the Glasgow road, along the South 
 Bum, to a point which is distant five hundred yards (measured along the South Burn) to 
 the east of the said bridge ; thence in a straight line to a point on the Gartlee road, which 
 is distant five hundred yards (measured along the Gartlee road) to the south of the point 
 at which the same meets Graham street; thence in a straight line to a point on the high 
 road from Carlisle to Stirling, which is distant one hundred yards (measured along such 
 road) to the south of the point at which the same meets the Edinburgh road ; thence along 
 the said road to Stirling, to the bridge on the same over the north burn; thence in a 
 straight line to a point on the. road from North Bridge street to New Monkland church, 
 which is distant fi.ve hundred yards (measured along such road) to the north of the bridge 
 on the same over the North Burn ; thence in a straight line to the bridge over the railway 
 on the Kirkintilloch road near Windhall; thence in a straight line to the bridge first 
 described. 
 
 Falkirk. — From a point on the Edinburgh road which is distant four hundred yards 
 (measured along the Edinburgh road) to the east of the bridge on the same over the East 
 or Meadow or Lady's Mill burn, in a straight line to the bridge on the Grangemouth road 
 over the same burn ; thence along the said burn, to the point at which tJie same passes un- 
 der the Forth and Clyde canal ; thence, eastward, along the Forth and Cljde canal to the 
 point at wiiich the same meets the road to Dakkrse Hi use j thence, northward, jdong the 
 
398 RISE, PROGRESS, AND IMPROVEMENT 
 
 road to Dalderse House tea point which is distant three hundred yards (measured along the 
 road to Dalderse House) from the point last described ; thence in a straight line to a point 
 on the Alloa and Canon road, which is distant two hundred yards (measured along the 
 Alloa and Carron road; from tlie point at which the same meets St David's lane ; thence 
 along the Alloa and Carron road to the point at which the same meets St David's lane; 
 thence along the road to Burnhouse to the point at which tlie same meets the West burn ; 
 thence in a straight line to the twenty-fourth mile stone on the Stirling road ; thence in a 
 straight line to a point on the road by Burnhead and Gartcows to South Bantaskine, which 
 is distant one hundred 3ards (measured along such road) to the southwest of the point at 
 which the same is met by the West bum; thence in a straight line to the south-eastern 
 corner of the Parkfoot washijig green ; thence in a straight line to the point first described. 
 
 Hamilton. — From Covan burn bridge, on the road to Lanark, in a straight line to the 
 point in the lower park wall of Hamilton palace, where it meets the great south avenue of 
 the said palace ; thence, westward, along the said wall to a point in the same six hundred 
 yards beyond the intersection of the Cambuslang and Glasgow road within the said wall; 
 thence in a straight line to the bridge on the said road over Wellhall burn •, thence up the 
 said bum to the point where it is met by the march fence between the burgh and the lands 
 of Over Auchingraymont ; thence southward along the said fence to the point where it 
 meets the road to Earnock ; thence in a straight line, through a point on the road to Strath- 
 aven, which is five hundred and twenty yards (measured along the said road) south of the 
 Butterbum bridge, continued until it meets the upper park wall of Hamilton palace; 
 thence, eastward, along the said park wall to the point where it meets the Covan burn ; 
 thence down the same to the point first described. 
 
 Lanark. — From a point on the river Cljde which is distant one hundred and fifty jards 
 (measured along the river Clyde) below the bridge over the same on the southern branch 
 of the Glasgow road, in a straight line to a point on the old road to Carluke, which is distant 
 one hundred and fifty yards (measured along such old road) from the point at which the 
 same leaves the Glasgow road; thence in a straight line to the point, near Mansfield, at 
 which the Jerviswood road leaves the northern Edinburgh road ; thence in a straight line 
 to a point on the southern Edinburgh road which is distant one hundred yards (measured 
 along such road) to the east of the eastern corner of Brown's square; thence in a straight 
 line to the centre of the ruins of the parish church ; thence in a straight line to a point on 
 the river Clyde which is distant seven hundred and fifty jards (measured along the river 
 Clyde) above the bridge over the same on the southern branch of the Glasgow road ; thence 
 down the river Clyde to the point first described. 
 
 Linlithgow. — From a point on the Union canal which is distant one hundred and fifty 
 yards (measured along the Union canal) to the northeast of the Aqueduct over the Edin- 
 burgh road, in a straight line to the point at which tlie burn joins the eastern end of Lin- 
 lithgow loch ; thence along the southern shore of Linlithgow loch to the point at which the 
 same is joined by the burn which runs therefrom across the Borrowstownness road ; thence 
 along the last mentioned burn to the bridge over the same on the Borrowstownness road : 
 thence in a straight line to a point on the Falkirk road which is distant one hundred and 
 fifty )ards (measured along the Falkirk road) from the point at which the Torphichen road 
 leaves the same ; thence in a straight line to the bridge marked No. 45, over the Union 
 canal on the Bathgate road ; thence in a straight line to the Aqueduct over the Edinburgh 
 road ; thence along the Union canal to the point first described. 
 
 12.— AYR DISTRICT. 
 
 ilyr.— From the end of the mill-dam dyke on the right bank of the river Ayr, and on 
 the east of the town, in a straight line to the Hawkhill bridge ; thence along the road which 
 passes the south-eastern side of the Newton muir, and in a line in continuation of the di- 
 rection of such road, to the Half-mile bum ; thence down the Half-mile burn to the point at 
 which the same joins the Firth of Clyde ; thence along the shore of the Firth of Clyde to the 
 point at which the same is met by the road which runs thereto from the Holmstone toll 
 bar, past tlie race course, and between the lands of Blackburn and Seafield ; thence along 
 
OF THE LAW OF ENGLAND. 399 
 
 the road last described to a point which is distant two hundred and sixty yards (measured 
 along the same) to the east of the point at which the same crosses the old Ma)bole road ; 
 thence in a straight line to the point first described. 
 
 Campbell town. — From the point, on tlie southeast of the town, at which the Kilkerran 
 bum joins the sea, up the Kilkerran burn to the point at which the same coming down 
 from Bengoillan nearly forms a right angle in turning towards the sea ; tJience in a straight 
 line to the summit of the hill called Barley Bannocks ; thence in a right line to the bridge 
 over the Witch burn on the Southend road ; thence in a straight line to the point at which 
 ilie road to Knockscalbert leaves the Inverary west road; thence in a straight line to the 
 first point of the rock on Balligieggan hill; thence in a straight line in the direction of the 
 summit of the island of Avarr, to the point at which such straight line cuts the Baraskomil 
 bum ; thence down the Baraskomil burn to the point at which the same joins the sea ; thence 
 along the sea shore to the point first described. 
 
 Inverarjj. — From the western angle of Point House, on the west of the toAvn, in a straight 
 line to a point which is distant three hundred yards due north of the same; thence in a 
 straight line to the point at which the Dalmally road meets the upper or great avenue to 
 Inverary castle; thence in a straight line to a point on the shore of Loch Fine, which is dis- 
 tant one hundred and fifty yards (measured along the shore) to the east of the north end of 
 the Pier ; thence along the shore of Loch Fine to that point thereof which is nearest to the 
 point first described ; thence in a straight line to the point first described. 
 
 Irvine. — From the flagstaff near the junction of the river Irvine with the sea (about one 
 hundred yards south of the point where the Pier Head leaves (he shore) in a straight line, 
 through the stone at the western corner of the march fence of the minister's glebe, to the 
 river Anwick : thence up the river Anwick to a point which is distant two hundred 
 and ninety.five jards (measured along the river Anwick) above the bridge over the same 
 on the Kilmarnock road ,• thence in a straight line, in the north-westerly direction, to the 
 point at which the burn called " The Minister's Cast" makes an angle in turning to the 
 west ; thence down The Minister's Cast to the point at which the same joins the river Ir- 
 vine ; thence down the river Ii-vine to that point thereof which is nearest to tlie flagstaff 
 aforesaid ; thence in a straight line to the flagstaff" aforesaid. 
 
 Oban. — The space on the main-land included within a circle described with a radius of 
 one half mile from the point as a centre where the street leading to the old Inverary road 
 meets the street along the share. 
 
 13. — DUMFRIES DISTRICT. 
 
 Annan. — From the point, on the north of the town, at which the Galla Bank bum joins 
 the river Annan, in a straight line to a point on the Preslonfield road which is distant one 
 hundi-ed yards (measured along the Prestonfield road) from the point at which the sjime 
 leaves the Prestonhall road ; thence in a straight line to the point near New Dyke at which 
 the Langholm road leaves the Carlisle road ; thence in a straight line through the Blindpeat 
 well to (he river Annan ; thence up the river Annan to (he point first described. 
 
 Dumfries. — From the point, on the north of the town, at which the townhead branch of 
 the Edinburgh road joins the English street branch of the same road, in a straight line to 
 the bridge over the Maryholm burn on the Lincluden road ; thence in a straight line to a 
 point on the Terregles road, which is distant five hundred yards (measured along Terre- 
 gles street and the Terregles road) from the point at which Terregles street meets Galloway 
 street ; thence in a straight line to the point at which the Castle Douglas road leaves the 
 Dalbeaty road; thence in a straight line to the point at which the left bank of the river 
 Nith is cut by a straight line drawn thereto due west from the Maiden's Bower Craig ; 
 thence along the last mentioned straight line to the point at which the same cuts the Caer- 
 laverock road ; thence in a straight line to the point at which the road to Gill brae leaves 
 the road to Gallside; thence in a straight line to a point which is distant one hundred yards 
 due east from the point first described ; thence in a straight line to the point first described. 
 
 Kirkcudbright.— Yvom. the point, on the west of the town, at which the river Dee would 
 be cut by a line to be drawn thereto parallel to the High Street leading from the Market 
 
-400 RISE, PROGRESS, AND IMPROVEMENT 
 
 cross to Bar HilJ, from tlie point at which the new road to St Mary's Tsle leaves the road 
 to Duiidrennan ; thence in a straight line to a point wliich is four hundred yards beyond the 
 same; thence in a straight line to a point which is seven hundred yards due east of the 
 northern extremity of the Stirling Acres Embankment; thence in a straight line to the 
 northern extremity of the Stirling Acres Embankment ; thence down the river Dee to the 
 point first described. 
 
 Lochmaben. — From the point, on the northeast of tlie town, near Bogle-hole, at which a 
 bum crosses the road to the bridge on Kennal water, in a straight line to a point on the 
 bank of the Castle loch which is distant five hundred jards in a straight line to the south- 
 east of the summit of the knoll of the old castle •, thi nee in a straight line to the summit of the 
 knoll of the old castle; thence in a straight line to a point on the Dumfries road which is 
 distant five hundred yards (measured along the Dumfries road) to the west of the Town 
 house ; thence in a straight line to a point which is four hundred yards due west of the point 
 first described ; thence in a straight line to the point first described. 
 
 Sanquhar. — From the point, on the south of the town, at which the Town-fit burn joins 
 the river Nith, up the Town -fit burn to a point which is distant two hundred and fifty yards 
 (measured along such burn) to the north of the point at which the same crosses the Dum- 
 fries road ; thence in a straight line to the bridge over the Crawick burn on the Whitehill 
 road ; thence down the Crawick burn to the point at which the same joins the river Nith ; 
 thence along the river Nith to the point first described. 
 
 14. WIGTON PISTRICT. 
 
 New Galloway. — From a point on the road to Kells church, which is distant five hundred 
 yards (measured along such road) to the north of the north-western comerof the Towti house, 
 in a straight line drawn due erist to a point three hundred yards distant ; thence in a straight 
 line to a point which is distant three hundred yards due west from a point on the Kirkcud- 
 bright road, which is distant four hundred yards (measured along the Kirkcudbright road) 
 to the south of the Town house ; thence in a straight line, through the said point on the 
 Kirkcudbright road, to a point which is distant three hundred yards due west therefrom ; 
 thence in a straight line to a point which is distant three hundred yards due west from 
 the point first described; thence in a straight line to the point first described. 
 
 Stranraer. — From that point on the shore of Loch Ryan which is due northeast of the 
 point at which the two roads from Stranraer to Leswalt meet, in a straight line, through the 
 point at which such two roads meet, to a point seven hundred yards beyond the same ; thence 
 in a straight line to the point at which the road from the church to Portpatrick meets the 
 road from the meeting-house to Portpatrick ; thence in a straight lijse to a point on the Dum- 
 fries road which is distant seven hundred jards (measured along the Dumfries road) from 
 the point at which the same is met by the road from the meeting-house to Portpatrick ; 
 thence in a straight line, drawn due northeast, to the shore of Loch Rjan; thence along 
 the shore of Loch Ryan to the point first described. 
 
 Whithorn. — From a point on the PortwiJliam road, which is distant two hundred yards 
 (measured along the Portwilliam road) to the west of the point at which the same leaves 
 the Wigton road, in a straight line to a point on the Glasserton road, which is distant five 
 hundred yards (measured along the Glasserton road) from the point at which the Isle of 
 Whithorn road leaves the same; thence in a straight line to a point on the Isle of Whit- 
 hom road, which is distant five hundred yards (measured along the Isle of Whithorn road) 
 from the point at which the same leaves the Glasserton road ; thence in a straight line to a 
 point on the road or street called the Raw, leading in a southeasterly direction from the 
 Town House, five hundred yards distant therefrom (measured along the said road) ; thence 
 in a straight line to a point on the Garlieston road, which is distant two hundred yards 
 (measured along the Garlieston road) from the point at which the same leaves the Wigton 
 road ; thence in a straight line to the point first described. 
 
 Wigton. — From a point on the sea shore, on the northeast of the town, which is distant 
 four hundred yards (measured along the shore) to the north of the point at which the Croft- 
 en- Reich burn joins the sea, in a straight line to the point at Trammond ford, at which 
 
OF THE LAW OF ENGLAND. 401 
 
 the Glenluce road meets a road to Bladeiioch; thence in a straight line to a point on the 
 Bladenoch water, which is distant one hundred yards (measured along the Bladenoch 
 water) above Bladenoch bridge ; thence down the Bladenoch water to the point at which 
 Uie same joins the sea ; thence along the sea shore to the point first described. 
 
 We now proceed to lay before the reader a copy of the Irish Reform 
 Bill, which received the royal assent on tlie 7(.h August, 1832. 
 
 AN ACT TO AMEND THE REPKESENTATION OF THE PEOPLE OF IRELAND. 
 
 Whereas it is expedient to extend the elective franchise to many of his majesty's subjects 
 in Ireland who have not heretofore enjoyed the same, and to increase the number of re- 
 presentatives for certain cities and boroughs in that part of the united kingdom, and to 
 diminish the expenses of elections therein ; be it therefore enacted by the king's most ex- 
 cellent majesty, by and with the advice and consent of the lords spiritual and temporal, and 
 commons, in this present parliament assembled, and by the authority of the same, that,, in 
 addition to the persons now by law qualified to vote at the election of knights of the shiie 
 for the several counties in Ireland, every male person of full age, and not subject to any 
 legal incapacity, who shall be entitled, either as lessee or assignee, to any lands or tene- 
 ments, whether of freehold or of any other tenure whatever, for the unexpired residue, 
 whatever it may be, of any term originally created for a period of not less than sixty years, 
 whether determinable on a life or lives or not, and having a beneficial interest therein of 
 the clear yearly value of not less than ten pounds over and above all rent and charges, or 
 for the unexpired residue, whatever it may be, of any term originally created for a period 
 of not less than fourteen years, whether determinable on a life or lives or not, and having a 
 beneficial interest therein of the clear yearly value of not less than twenty pounds over v.nd 
 above all rent and charges, or for the unexpired residue, whatever it may be, of any term 
 originally created for a period of not less than twenty years, and having a beneficial interest 
 therein of the clear yearly value of not less than ten pounds over and above all rent and 
 charges, shall be entitled to vote in the election of a knight or knights of the shire for the 
 county in which such lands or tenements shall respectively be situate : provided always, that 
 110 person, being such lessee or assignee of such term of twenty years, and no person, being 
 only a sub-lessee, or the assignee of any underlease, shall have a right to vote in respect of 
 any such term of sixty years, or fourteen or twenty years, as aforesaid, unless he shall be in 
 the actual occupation of the premises; and provided also, that any renewal or new lease of 
 the same premises, for the same rent and for a term not less than such original term, shall ibr 
 the purposes of this act be deemed to be a continuance of the same qaulification as aforesaid. 
 
 II. And be it enacted, that every male person of full age, and not subject to any legal in- 
 capacity, who shall be seised at law or in equity of any lands or tenements of copyhold tenure, 
 for his life, or for the life of another, or for any livts whatsoever, or for any larger estate, of 
 the clear yearly value of not less than ten pounds over and above all rents and charges pay- 
 able out of or in respect of the same, shall be entitled to vote in the election of a knight or 
 knights of the shire to serve in any future parliament for the county in which such lands or 
 tenements shall be respectively situate. 
 
 III. Nothing in this act contained shall take away or in any manner affect the rights of 
 voting for knights of the shire at present enjoyed by or which may hereafter accrue to any 
 person by virtue of any law now in force, except so far as herein specially provided. 
 
 I V. Notwithstanding any thing herein contained, no person shall be entitled to vote in 
 the election of a knight or knights of the shire to serve in any future parliament in respect 
 of his estate or interest in any house, warehouse, counting-house, or shop occupied by him- 
 self, or in any land occupied by himself together with any house, warehouse, counting-house, 
 or shop, such house, warehouse, counting-house, or shop being, either separately, or jointly 
 with the land so occupied therewith, of such value as would, according to tlie provisions 
 hereinafter contained, confer on him ihe right of voting for any city, town, or borough, 
 
 3 E 
 
402 RISE, PROGRESS. AND IMPROVEMENT 
 
 whether he shall or shall not have actually acquired the right to vote for sudi city, town, or 
 borough in respect thereof. 
 
 V. In everj city or towii, being a county of a city or county of a towii by itself, and which 
 shall return a member or members to serve in any future parliament, in addition to the 
 persons now by law qualiiied to vote at the election of such member or members, every 
 male person of full age, and not subject to any legal incapacity, who shall be seised at law 
 or in equity of any freehold estate in any lands or tenements within such city or town, and 
 shall be in the actual occupation thereof, and who shall have a beneficial interest therein of 
 the clear yearly value of ten pounds at the least above all rent and charges payable out of tlie 
 same, or who shall hold as lessee or assignee any lands or tenements within such city or town, 
 for such term, of such value, and subject to such provisions as would under this act, if such 
 lands or tenements were situate in a county at large without the limits of such city or town, 
 entitle such person to register his vote for such county, or who shall hold and occupy within 
 such city or town, as tenant or owner, any house, warehouse, counting-house, or shop, which, 
 either separately, or jointly with any land within such city or town occupied therewith by 
 him as tenant under the same landlord, or occupied therewith by him as owner, shall be 
 6ona ./irfe of the clear yearly value of not less than ten pounds, shall, if duly registered ac- 
 cording to the provisions of this act, be entitled to vote in tlie election of a member or mem- 
 bers to serve. in any future parliament for such city or town : provided alwajs, that no such 
 occupier as last above mentioned shall be admitted to be registered under this act, unless he 
 shall have occupied such premises as aforesaid for six calendar months next previous to the 
 time of his registry, nor unless such occupier shall have paid or discharged all such grand 
 jury and municipal cesses, rates, and taxes, if any, as shall have become legally due and paj- 
 able by him in respect of such premises, over and above and except one half year's amount 
 of such cesses, rates, and taxes aforesaid. 
 
 VI. From and after the commencement of this act no person, save as herein is provided, 
 shall be registered or admitted to vote as a freeholder at any election of any member or mem- 
 bers to serve in any future parliament for any county of a city or count.} of a town in Ireland, 
 unless such person shall have an estate of freehold in lands, tenements, or hereditaments, in 
 such county of a city or county of a town, of the clear yearly value often pounds at the least 
 above all charges, any law or statute to the contrary notwithstanding : provided alwajs, that 
 nothing in this act contained shall prevent any person now being a forty-shilling freeholder 
 entitled to register as such from retaining (so long as he shall continue to be seised of the 
 same lands or tenements) the right of voting in such election in respect thereof, if duly re- 
 gistered according to the provisions of this act. 
 
 VI I. At all elections of a member or members to serve in any future parliament for any 
 city, town, or borough in Ireland, not being a county in itself, every male person of full 
 age, and not subject to any legal incapacity, and duly registered according to the provisions 
 of this act, who shall hold and occupy within such city, town, or borough, as tenant or owner, 
 any house, warehouse, counting-house, or shop, which, either separately, or jointly with any 
 land within such citj', town, or borough occupied therewith by him as tenant under the 
 Scime landlord, or occupied therewith by him as owner, shall be bonajide of the clear yearly 
 value of not less than ten pounds, shall be entitled to vote in the choice of a member or mem- 
 bers to serve in any future parliament for such city, &c. : provided always, that no such 
 occupier as last aforesaid shall be admitted to be registered under this act, unless he shall 
 have occupied such premises asaforestiid for six calendar months next previous to the time 
 of registry, nor unless such occupier shall have paid or discharged all such grand jury and 
 municipal cesses, rates, and taxes, if any, as shall have become legally due and payable by 
 him in respect of such premises, over and above and except one half ) ear's amount of such 
 cesses, rates, and taxes aforesaid. 
 
 VIII. Provided nevertheless, that notwithstanding any thing hereinbefore contained, no 
 person shall be entitled to vote in the election of a member or members to serve in any 
 future parliament, for any city or town, or county of a city or town, in respect of any estate 
 or interest in any tVeehold under the yearly value of ten pounds, which shall have been ac- 
 quired by such person since the first day of March, 1831, unless the same shall have come 
 to or been acquired by such person since that day, and previously to the passing of this act, 
 
OF THE LAW OF ENGLAND. 403 
 
 by descent, succession, marriage, marriage settlement, devise, or promotion to any benefice 
 in a cliurch, or by promotion to any office. 
 
 IX. Provided always, that all freemen, freeholders, and persons who by reason of any 
 coiporate or other right are now by law entitled to vote at the election of a member or mem- 
 bers to serve in parliament for any city, town, or borough, and all persons who, by reason 
 of birth, marriage, or service, or of any statute now in force, shall be at any time hereafter 
 admitted to their freedom in any city, town, or borough sending a member or members to 
 parliament, shall, after such registration as is directed by this act, but so long only as they 
 shall reside within the said city, town, or boiough, or within seven statute miles of the usual 
 place of election therein, have and enjoy such right of voting as fully and in like manner as 
 if this act had not been passed : provided further, that no persons who since the thirtieth 
 day of March in the j ear 1831, have been or hereafter shall be admitted as honorary free- 
 men shall be entitled, by virtue of such admission, to vote or register as freemen under this 
 act. 
 
 X. No public or parliamentary tax, county, church, or parish cess or rate, or any cess or 
 rate upon any townland, or division of any parish, barony, or half barony, shall be deemed 
 a charge payable out of any estate or tenement within the meaning of this act. 
 
 XL The city of Limerick, the city of Waterford, the borough of Belfast, the county of 
 the town of Galway, and the university of Dublin, shall each respectively return one mem- 
 ber to serve in each future parliament, in addition to the member which each of the said 
 places is now by law entitled to return. 
 
 XI I. Each of the cities, towns, and boroughs returning a member or members to serve 
 in parliament, shall, for the purposes of this act, include the place or places respectively 
 which shall be comprehended within the boundaries of each of the said cities, towns, and 
 boroughs respectively, as such boundaries shall be settled by an act to be passed for that 
 pur^jose in tliis present parliament, which act, when passed, shall be deemed and taken to 
 be part of this act as fully and effectually as if the same were incorporated herewith: pro- 
 vided always, that until the passing of said last mentioned act all such cities, towns, and 
 boroughs shall, for tlie purposes of this act, be deemed and taken to be comprehended 
 within the same limits and boundaries as before the passing of this act. 
 
 XIII. No person shall be admitted to vote at any election of a member or members to 
 serve in any future parliament for any county, city, town, or borough in Ireland, the 
 university of Dublin excepted, unless such person shall have been qualified as aforesaid, and 
 duly registered under this act ; aiad no pei-son shall be so registered in respect of any lands, 
 tenements, or hereditaments, unless he shall have been in the actual possession thereof, or 
 in receipt of the rents, issues, or profits thereof, for his own use, as the case may require, for 
 six calendar months next previous to his registry under this act : provided always, that when 
 any lands, tenements, or hereditaments, which would otherwise entitle the owner, holder, or 
 possessor thereof to vote in any such election, shall come to any person, at any time within 
 six months next before such registry, by descent, succession, marriage settlement, devise, or 
 promotion to any benefice or office, such person shall be entitled, in respect thereof, to be 
 registered as a voter at the registry for such couiaty, city, town, and borough respectively 
 then next to be had by virtue of this act. 
 
 XIV. And further, after the commencement of this act a special session, for the purpose 
 of registering votes for each county, city, town, and borough in Ireland having the right to 
 send a member or members to parliament (the borough of the university of Dublin only 
 excepted), shall be holden in each such county by and before the assistant barrister or chair- 
 man of such county, and in each such city, town, and borough respectively by and before 
 the assistant barristers in the schedule A hereunto annexed mentioned, on such day or 
 days and at such places respectively as the lord lieutenant or other chief governor of Ireland 
 shall appoint ; and the clerk of the peace in and for each such county, city, town, and 
 borough, or his deputy, shall, thirty days at the least before the day respectively so appointed, 
 cause to be posted, in conspicuous places within each such count)-, &c. respectivel.v, notices 
 that such session for the purposes of registering the names of voters under this act for such 
 county, &c., will be held on the dajs and at the places so appointed, and that applications 
 for that purpose will be then and there taken into consideration. 
 
^^^ RISE, PROGRESS, AND IMPROVEMENT 
 
 XV. Every person intending to apply at such session to be registered as a voter for any 
 count)', city, town, or borougii, siiall, twenty clear days at the least before the first liay ap- 
 pointed for holding such sessions respectively, give or cause to be given a notice in writing 
 of such his intention to the clerk of tlie peace, or his deputy, acting for such county, &c., or 
 to the high constable of the barony within which the property to be registered is situate; 
 and the high constable shall, without delay, tiansmit all notices so given to him to the clerk 
 of the peace ; and such person so intending to register shall, in such notice, state his name 
 and residence, the right in respect of which he fntends to apply, and the nature of the quali- 
 fication relied upon by him as entitling him to be so registered ; and such clerk of the peace, 
 or his deputy, shall thereupon enter all such notices according to the order in which he shall 
 receive them, and shall, ten days at least before the day appointed for holding such session, 
 cause alphabetical lists of such voters to be printed and circulated, and to be posted in con- 
 spicuous places throughout such county, SiC. ; and no such list shall be liable to any stamp 
 duty. 
 
 XVI. At such special session the clerk of the peace, or his deputy, shall call the names of 
 the persons contained in such list in alphabetical order, and shall again, twice at the least 
 during such sessions, call over the names of all such persons as did not appear upon such first 
 calling, and that each claimant's case shall be heard in the order of his appearance ; and each 
 person so called shall produce in open court the deed, lease, or instrument, if an\', duly 
 stamped, by virtue of which he shall claim a right to be registered, or shall, by his own 
 oath, or otherwise, as the assistant barrister shall require, sufiiciently account for the non- 
 production thereof-, or if he shall not claim by virtue of a deed, lease, or instrument, or is 
 disabled from producing such deed, &c., then such person shall otherwise establish his right 
 to be registered as such voter, pursuant to his said notice, according to the provisions of this 
 act; and such person, if claiming as a freeholder, or leaseholder, or householder, shall also 
 make it appear that the property in respect of which he seeks to be so registered is of the 
 value and nature by this act prescribed, and tiiat he is otherwise duly qualified to be regis- 
 tered, according to the provisions of this act : provided always, that no person shall be bound 
 to produce the title deeds of any landlord under whom he may hold or derive, or make 
 pi oof of such title, and that possession and perception of rent shall be deemed jnbna facie 
 evidence of sucli landlord's title. 
 
 XVII. The assistant barrister orchairnfian shall inspect and examine every deed, lease, 
 or instrument so produced, and shall investigate the claim made thereunder, or otherwise, 
 to be registered, and shall determine upon the validity or invalidity of such claim, and shall 
 and may examine and inquire, as well by the oaths of the claimants as by any other evi- 
 dence ollered in support of or in opposition to such claim, whether such claimant is or is not 
 to be registered as a voter for the county, &c. to which his claim shall relate, and in case of 
 any claim in respect of the freehold, leasehold, or household property, whether the same be 
 of the value and natuie respectivel} hereby prescribed and required, and shall also inquire, 
 by anj- of the means aforesaid, as he shall think fit, into the truth of the several particulans 
 required by the provisions of this act, or required to be stated in any oath by such claimant 
 hereinalter prescribed to be taken for such registry. 
 
 XVIII. Provided always, that no person shall be received as the opposer of any claimant 
 to register at such sessions who shall not be himself either a registered voter for such countj, 
 cit}', town, or borough, or a person who has served a notice to register as a voter at the same 
 sessions, or some counsel, attorney, or agent duly authorized by such voter or claimant to ap- 
 pear for him or on his behalf. 
 
 XIX. If such assistant barrister or chairman shall deem such claimant to be entitled 
 under this act, to be registered as a voter for the county, cit} , town, or borough to which his 
 claim shall relate, and not be subject to any legal disqualifiaition, such barrister or chairman 
 shall so declare and adjudge ; and the person so declared entitled shall verify his title by affi- 
 davit, and shall take and subscribe (as the case may be) the oath stated in the schedule C 
 instead of any oath or oaths which by the law now in being he would be liable to take or 
 subscribe. 
 
 XX. Every such affidavit shall be signed by the barrister or chairman before whom the 
 same shall be taken, andghall be by him delivered to the clerk of the peace, or his deputy, 
 
OF THE LAW OF ENGLAND. 405 
 
 as the case may be, to be filed and kept amongst the records of the county, city, town, or 
 borough ; and such barrister is liereby required to take care that such oaths shall be agree- 
 able to the form hereby prescribed, or as near thereto as may be; and no objection, in point 
 of form, shall at any time hereafter be allowed to any such oath, when signed. 
 
 XXL In case it shall appear to such barrister or chairman that any person claiming to 
 be registered as a voter for any county, city, town, or borough is not entitled so to be regis- 
 tered, such barrister or chairman shall refuse to permit such person to be registered, and 
 shall make an order accordingly ; and when such refusal shall be on the ground of insuf- 
 ficiency of value, the order of refusal shall state such insufficiency as the ground of such 
 order, or otherwise shall state the objection by reason whereof the claimant has been ad- 
 judged not to be entitled to be registered : provided always, that such order shall be without 
 prejudice to any future application to be registered, which the person so rejected shall think 
 fit to make at any subsequent general quarter sessions of the peace. 
 
 XX IL Provided alwa}S, that a certifiaite of registry made pur.-uant to the laws in force 
 in Ireland, previous to the passing of this act, shall be deemed and taken to be prima facie 
 evidence of the right to be registered ; and that any person, having given notice of his in- 
 tention to register as by this act required, shall, upon producing or causing to be produced 
 such certificate at the session for that purpose to be held, be entitled and admitted to register 
 his vote and obtain his certificate under this act, without further proof or oath, unless cause 
 to the contrary shall appear, and without any fee or charge ; and in cases where a certi- 
 ficate of registry shall not be produced, or in case it shall appear expedient, it shall be law- 
 ful for the assistant barrister or chairman presiding at the sessions to be holden for the pur- 
 pose of registering votes under this act to refer to any original affidavit or affirmation, or 
 transcript or record thereof, or any entry thereof in the book or books, which, by virtue of 
 the laws now in force in Ireland, the clerks of the peace or town clerks tiiroughout Ireland 
 are authorized or required to make or keep ; and in case the said assistant barrister or chair- 
 man shall be satisfied, on inspection thereof, that such affirmations or affidavits or entries are 
 correct. It shall not be necessary for him further to inquire into the right of voting claimed 
 tJiereunder, but he shall and may direct and allow the same to be registered, and the claim- 
 ant to have his certificate under this act, without oath or further proof, unless cause to the 
 contrary shall appear, and without any fee or charge. 
 
 XXIII. Provided always, that all forty shilling freeholders and five pound householders 
 claiming a right to be registered under this act shall appear in person before the assistant 
 barrister at the sessions, to be examined on oath by such barrister touching such thtir claim 
 to be registered, and they shall, if required by such barrister, make proof of the nature and 
 sufficiency of their qualification to be so registered, and shall upon such proof being made, 
 and also proof of identity, be admitted or rejected accordingly. 
 
 XXI V. If any person against whose claim any such order shall be made on the ground 
 of insufficiency of value shall deem himself aggrieved thereby, it shall be lawful for such 
 person to appeal therefrom to the judges of assize at the next assizes for the count\, citj, 
 town, or place within which the property in right whereof such person claims to register 
 such vote shall be situate ; and such judges of assize, or one of them, are and is hereb} em- 
 powered and required to try and inquire by the verdict of a jury whether such pioperty is 
 of the annual value within the meaning of this act at which the claimant seeks to register 
 such vote ; and such jury shall be returned by the same officer and in the same mamier in 
 which juries are now returned in cases of appeal from the decrees of assistimt barristers on 
 civil bills ; and if such jury shall give a verdict in favour of tlie claim to register, and the 
 judge before whom the same shall be tried shall consider such claim to be in other respects 
 well founded, the order so complained of shall be thereupon reversed, and the claimant be 
 declared and adjudged entitled to be registered as a voter under this act ; and such adjudi- 
 cation shall have the same efiect to all intents and purposes as if the same had been made by 
 such assistant barrister or chairman at the sessions aforesaid. 
 
 XXV. Where any person, against whose claim to register as a voter at elections for any 
 county, city, or town or place, any order shall be made by the assistant barrister or chair- 
 man on any other ground than insufficiency of value, shall consider himself aggrieved by 
 such order, it shall be lawful for such person to appeal from such ojder to the judges of as- 
 
406 RISE, PROGRESS, AND IMPROVEMENT 
 
 size at the next assizes to be holden for the same county, city, town, or place •, and such judges 
 of assize, or one of them, shall have power, on motion, to review such order, and either to 
 affirm or reverse the same, as shall be fit, and thereupon to adjudicate; and which adjudi- 
 cation shall have the same effect, to all intents and purposes, as if it had been made by such 
 assistant barrister or chairman at the sessions aforesaid. 
 
 XXVI. In every case in which an order of an assistant barrister or chairman shall upon 
 appeal be reversed, the judge before whom the same shall have been heard shall thereupon 
 cause such oath to be taken and subscribed, and such certificate to be given, and shall sign 
 the same respectively, in like manner as the assistant barrister is hereinbefore required to 
 do, and shall cause such acts to be performed by the clerk of the peace or his deputy, and 
 such proceedings to be had, as hereinbefore directed and required when any voter is regis- 
 tered at any sessions before the assistant barrister or chairman ; and such oath and certifi- 
 cate, and such acts and pioceedings, shall be of the like eflect as if they had been taken, 
 subscribed, given, performed, and had before the assistant barrister or chairman. 
 
 XXVII. After the determination of the session hereby directed to be first holden for the 
 registry of voters for counties, cities, towns, and boroughs, it shall be lawful for any person 
 claiming a right so to be registered to apply for that purpose at any sessions of the peace or 
 adjournment thereof to be held by and before the assistant barrister or chairman of the pro- 
 per county, and by and before the assistant barrister or chairman by the said schedule A 
 authorized to register voters for such city, &c. , upon giving to the cleik of the peace a no- 
 tice of his intention so to do, in the form herein provided, twenty clear da}S at the least 
 before the day appointed for the holding of such general or quarter session, and if within a 
 county at large, in the division within which the freehold or leasehold interest intended to 
 be registered shall be situate ; and the clerk of the peace or his deputy shall in such aise 
 proceed in all respects in the same manner as hereinbefore prescribed with relation to appli- 
 cations for registering voters at the first session for that purpose, hereby directed; and the 
 assistant banister of such county, or cJiairman, is hereby authorized and icquired to he^r 
 and determine such applications at such general or quarter sessions, and at the commence- 
 ment of such sessions, and before any other business, civil or criminal, in the same maimer 
 in all respects as is hereinbefore provided with respect to applications to register at the ses- 
 sions for that purpose to be first holden under this act ; and thereupon the same proceedings 
 shall and may be had, the like orders made, the like oaths taken, the like certificates grant- 
 ed, the like rights and powers of appeal enjoyed and exercised, and the like rules and regu- 
 lations, enactments and things, observed, performed, and followed, as if sucJi appli(uition 
 had been made at the first session for registering votes directed to be Iicld under this act : 
 provided always, that a certificate of a former registry under this act shall be deemed and 
 taken to be prima facie evidence of the right of voting ; and that any person, having given 
 notice of his intention to register anew under this act, shall, upon producing or causing to be 
 produced such former certificate at the sessions for that purpose to be held, be entitled and 
 admitted to register his vote, and to obtain a new certificate under this act, without further 
 proof or oath, unless cause to the contrary shall appear, and shall by virtue of such new cer- 
 tificate be entitled to vote at any election or elections to be held within eight } ears next after 
 the obtaining of such new certificate. 
 
 XXVIII. Upon any person being under this act declared entitled to be registered as a 
 voter, the clerk of the peace or his deputy shall, upon payment to him of the sum of one 
 shilling, give to the person so declared entitled a certificiite on parchment, signed b} such 
 clerk of the peace or his deputy, as also by the barrister, chairman, or judge, declaring sucli 
 right, that such person has been registered as a voter for such count}-, cit}', town, or bor- 
 ough, and the character and right in which he has been so registered, and the date of such 
 registry as aforesaid, and shall then and there make an entry of such certificate at the foot of 
 the voter's affidavit of registry, and sign his name to such entry ; and which certificate shall 
 be the proper evidence of the right of the person named therein to vote : provided alwajs, 
 that in the absence of such certificate, the voter shall be entitled to refer to his original affi- 
 davit of registry, with the entry thereon, in tlie hands of the deputy clerk of the peace, and 
 which original affidavit such deputy is required immediately to produce to the returning 
 officer or his deputy. 
 
OF THE LAW OF ENGLAND. 407 
 
 XXIX. Every pei-son who shall duly register as a voter within this act at the first ses- 
 sion for registering his vote witliin this act shall be thereupon forthwith entitled to vote at 
 any election to be held in and for the county, city, town, or borough for which such voter 
 shall be registered ; and that any person who shall at any time after such first session duly 
 register his vote according to the provisions of this act shall be entitled to vote at any 
 election to be held by virtue of any writ tested six calendar months at least after such 
 registry. 
 
 XXX. And further, that the clerk of the peace, at every election of a member to serve in 
 parliament for any county, city, town, or borough, shall appoint, or in failure thereof the 
 returning officer or officers shall appoint, a deputy clerk of ihe peace, and likewise an assist- 
 ant to such deputy, to be present in each booth or place of polling, who shall take with him 
 Into such place of polling all the original affidavits and affirmations which have been made 
 by the persons capable of voting in such place of polling respectively, any act to the contrary 
 notwithstanding ; which affidavits or affirmations the clerk of the peace is hereby required 
 to have arranged alphabetically in separate parcels, (one or more for each letter of the alpha- 
 bet,) and indorsed with the names of the persons by whom the same were respectively 
 made, and also with the number of the entr}- of affidavit or affirmation in the registry book; 
 and that in those cjiscs wherein a certificate of registry shall not be produced by the person 
 tendering his vote or offering to poll, such deputy shall, on the demand of the person offer- 
 ing to poll, produce the original affidavit or affirmation of the registry of such person; and 
 that such deputy clerk of the peace shall be entitled to receive the sum of ten shillings, and 
 no more, for each day of his attendance, any act to the contrary notwithstanding ; and such 
 assistant to such deputy shall be entitled to receive tlie sum of five shillings for each day of 
 his attendance ; and that if such deputy, or such assistant to such deputy, shall alter, deface, 
 destroy, or lose any affidavit or affirmation of registry committed to his care, he shall forfeit 
 the sum often pounds for every such offence to any person suing for the same, by action of 
 debt, at any general quarter sessions of the peace. 
 
 XXXI. No person shall be admitted to vote at any election of a member or members to 
 serve in any future parliament, by virtue of any registry under this act, unless he shall have 
 registered within eight yeai-s next before suuh election. 
 
 XXXII. No registry hereafter to be made shall be valid unless made conformably to the 
 provisions of this act. 
 
 XXXIII. In case any exigency shall render it necessary for any assistant barrister or 
 chairman to adjourn any session for the registry of votes so appointed to be holden, or in case 
 he shall be so directed by the lord lieutenant, it shall be lawful for him to adjourn and con- 
 tinue the same, as circumstances may require, either to the same place, or to such other 
 place or places as the lord lieutenant shall direct. 
 
 XXXIV. Any person registering under this act shall be exempted from the payment of 
 any fee whatever for filing the certificate or other duty in respect of such registry, save only 
 such fee of one shilling to the clerk of the peace as by this act is provided. 
 
 XXXV. And further, that the clerk of the peace for each county, city, town, and bor- 
 ough returning a member or members to parliament shall, under the direction and with 
 the advice of the chairman or barrister, as the case may be, on or before the first day of 
 February in each and every year, examine, correct, and make out complete alphabetical 
 lists of the registered voters in each county, &c., in which he hag acted in making such re- 
 gistry as aforesaid, with the dates of their registries respectively annexed, and shall, at the 
 expense of such county, &c., respectively, on or before the said first day of February in each 
 year, cause such lists to be printed, and posted in some conspicuous places in the counties, 
 cities, towns, and boroughs to which such lists respectively relate, and shall also deliver to any 
 person applying for the same a copy of each such printed list, upon being paid one shilling 
 for each such copy. 
 
 XXXVI. The expenses of printing the notices and postings hereby directed shall be de- 
 frayed by the clerk of the peace in such county, city, and town respectively ; and the grand 
 jury of each such county, &c., as the case may be, are hereby required, at the next assizes or 
 presenting term after such notices and postings, to present to be levied off their respective 
 counties in the same manner as other sums are authorized to be presented by such grand 
 
408 RISE, PROGRESS, AND IMPROVEMENT 
 
 juries, all such sums as shall have been necessarily disbursed by such clerks of the peace re- 
 spectively, which sums shall be paid to such clerks of the peace. 
 
 XXXVII. No barrister or chairman shall be eligible to serve in parliament for any 
 county, city, town, or borough sending a member or members to parliament, in which he 
 shall have exercised jurisdiction under this act as such barrister or chairman, for seven years 
 after he shall have exercised such jurisdiction. 
 
 XXXVIII. Each riding in the county of Cork shall be deemed to be a county for the 
 purpose of registry under this act. 
 
 XXXIX. If any person shall refuse to be sworn or to give evidence before any judge, 
 barrister, chairman, or jury, upon the i)ivestigation of any claim to register under this act as 
 aforesaid, without sufficient lawful excuse to be allowed by such judge, &c., it shall be law- 
 ful for such judge, &c., to order such person to pay a fine not exceeding ten pounds, to be 
 applied to the use of the infirmary of the county, city, or town respectively, or such charit- 
 able institution as the judge, chairman, or barrister shall think fit, or in default thereof to 
 commit such person to the gaol of the said county, city, or town respectively for any term 
 not exceeding two calendar months. 
 
 XL. If any person shall forge or counterfeit the signature of any judge, chairman, bar- 
 rister, or clerk of the peace to any order, certificate, or instrument in writing purporting to 
 be an order or certificate within this act, or the signature of any person to any «iath or affir- 
 mation within this act, or shall knowingly utter or publish as true and genuine any such 
 forged or counterfeited order, certificate, instrument, writing, oath, or affirmation, every 
 person so offending shall be deemed guilty of felony, and shall be liable, at the discretion of 
 the court before which he shall be tried, to be transported beyond the seas for the term of 
 seven years, or to be imprisoned, with or without hard labour, for any terra not exceeding 
 three yeare. 
 
 XLI. In every case where an oath is by this act, required to be tiiken, every person, be- 
 ing a Moravian or Quaker, may make affirmation in the form prescribed hereby for each 
 such oath respectively, and that all provisions herein contained relative to any oath shall re- 
 gpectively extend and apply to every such affirmation. 
 
 XL II. If any person shall, in any oath or affirmation to be tJiken under this act, wilfully 
 and corruptly swear or affirm falsely, such person shall be deemed guilty of perjury, and be 
 liable to the same pains, penalties, and punishments as any pei'son is now liable to for wilful 
 and corrupt perjury. 
 
 XLI 1 1. The sherift' of each county, city, and town in Ireland, or his under sheriff, and 
 also the clerk of the peace or his deputy, and town clerks, for each such county, &c., or his 
 deputy, and the high constable of the baron^y in which each and every such court of sessions 
 as by this act is directed shall be held, and such number of other constables as the assistant 
 barrister or chairman shall deem sufficient, shall attend the court from day to day during the 
 continuance of such sessions ; and every clerk of the peace and town clerk, or deputy, as the 
 case may be, attending any such sessions, shall take with him and from day to day attend 
 with such original affidavits or affirmations, and all and every such book and registry-, as 
 under and by virtue of the laws now in force in Ireland, or under this act, such clerk of the 
 peace or town clerk, or his deputy, is required to keep or to attend with and produce ai any 
 election or place of polling in Ireland. 
 
 XLI V. In the county of Dublin all voters to be registered under this act shall be regis- 
 tered before the chairman of the sessions of that county, and in the city of Dublin before the 
 said chairman, who shall for such purpose hold a session four times in each year, at such 
 times and places as the lord lieutenant or other chief governor or governors of Ireland shall 
 appoint, and that such registry shall be conducted in the same manner in all respects as be- 
 fore the assistant barrister in any other county, city, or town ; and such chairman shall have, 
 exeicise, perform, and discharge every power, jurisdiction, right, authority, duty, and func- 
 tion hereby vested in or given to any such assistant barrister ; and in an} case where an 
 appeal is hereby allowed from the order of an assistant barrister to the judge of assize the 
 like power of appeal from any order of such chairman shall and maj , in the case of any 
 voter in the county of Dul)lin and city of Dublin respectively, be enjoyed and had to a judge 
 of an) of his majesty's superior law courts of record in Dublin at nisi jmus, at the sittings 
 
OF THE LAW OF ENGLAND. 409 
 
 for the city of Dublin next after such order made, and the judge to which any such appeu'i 
 shaJl be made shall proceed with respect tliereto in the same manner as any judge of assize 
 is hereby authorized or required to proceed. 
 
 XLV. Every session to be held for registering voters within this act shall be deemed a 
 court of record ; and that it shall be lawful for every barrister or chairman before whom such 
 court shall be held, from time to time as there shall be occasion, to fine the clerk of the 
 peace or his deputy, the town clerk or his deputy, or the sub-sherifl" of the county, city, or 
 town for which the said court shall be held, and any high or other constable, who shall re- 
 8i)ectively be guilty of any breach of duty in the execution of this act, in any sum not ex- 
 ceeding five pounds, and, at his discretion, to fine in any sum not exceeding forty shillings, 
 or to commit to prison for any time not exceeding a fortnight, any person wliatsoever who 
 shall disturb the court so to be held by him for registering voters as aforesaid, or who shall 
 be guilty of any other contempt of the said court. 
 
 XLV I. Provided always, that it shall be lawful for any freeholder who may be entitled 
 by law to register a freehold in any county, county of a city, or county of a town in Ireland, 
 of the annual value of not less than fifty pounds, and for every clergjman who claims to vote 
 as a freeholder in right of his benefice, to register such freehold either at the special or any 
 general quarter sessions to be holden under this act, or to register such freehold by taking 
 and subscribing the proper oath by the annexed schedule prescribed, in any of the superior 
 courts of record in Dublin, or before a judge at the assizes, in the manner now by law 
 authorized; and the said oath shall be subscribed by one of the judges of the court before 
 whom the same was taken, and being delivered to the clerk of the peace, shall be signed by 
 him, and kept amongst the records of the proper county ; and each such freeholder shall be 
 thereupon entitled, upon payment of the fee of one shilling, to receive, at any quarter ses- 
 sions of the peace for the division of the county in which his freehold shall be situate, a cer- 
 tificate of his registry as a voter for such county, &c., respectively; which certificate shall 
 be in the form by this act prescribed, and shall be signed by the assistant barrister and clerk 
 of the peace, or his deputy, and shall be of equal validity with any certificate to be granted 
 under this act, and subject to the same provisions. 
 
 XLVIL No person shall be allowed to have any vote at any election of a member or 
 members to serve in parliament for or by reason of any trust estate or mortgage, unless 
 such trustee or mortgagee be in actual receipt of the rents and profits of the same estate, but 
 that the cestuique trust or mortgagor in possession shall and may register and vote for the 
 same estate, notwithstanding such trust or mortgage. 
 
 XLVIII. After the end of the present parliament all booths erected for the convenience 
 of taking polls shall be erected at the joint and equal expense of the several candidates, and 
 the same shall be erected by contract with the candidates if they shall think fit to make 
 such contract, or if they shall not make such contract, then the same shall be erected by the 
 sheriff or other returning officer or ofiicers, at the expense of the several candidates as afore- 
 said ; and the deputies appointed by the said sheriff or other returning officer or ofiicers 
 shall be paid each two guineas by the day, and the clerks employed in taking the polls shall 
 be paid each one guinea by the day, at the expense of the candidates at such election : pro- 
 vided ahva)S, that if any person shall be proposed without his consent, then that the person 
 so proposing him shall deposit or give security in a sufficient sum to defraj' his share of the 
 said expenses in like manner as if he had been a candidate. 
 
 XLIX. The sheriff" or other returning officer shall, before the day fixed for the election, 
 cause to be made, for the use of each booth at such election, a true copy of the register of 
 voters, and shall under his hand certify every such copy to be true. 
 
 L. Every deputy of a sheriff" or other returning officer shall have the same power of ad- 
 ministering the oaths and affirmations required by law as the sheriff" or other returning offi- 
 cer has by virtue of this or any other act, and subject to the same regulations and provisions 
 in every respect as such sheriff or other returning officer ; and that such oaths shall be 
 agreeable to the forms by law required, or as near tliereto as may be. 
 
 LI. And further, whenever, in any one barony or half barony of the county, or in any 
 county of a city or county of a town, or in any borough, the number of registered voters ap- 
 pearing by the books of the clerk of the peace capable of voting at any election for the same 
 
 3 F 
 
4*10 RISE, PROGRESS, AND IMPROVEMENT 
 
 shall exceed six hundred voters, it shall and may be lawful for (he returning officer or offi- 
 cers, and he and they are hereby required, to provide two or more polling places for such 
 barony or half barony, or for such county of a city or county of a town, or borough, and to 
 make such a division or divisions of the voters, according to the first letters of tlieir names, 
 that it shall not be necessary for more than six hundred voters to poll in any one place of 
 polling, but so as not to divide the names beginning with the same letter of the alphabet ; 
 and that it shall and may be lawful for the returning officer or officers, and he and tiiey are 
 hereby required, to provide as many new places of polling as may be necessary for the pur- 
 pose, and to appoint as many additional deputies and poll clerks as shall be necessary to take 
 the poll in such additional places of polling, not exceeding one deputy and one poll clerk for 
 each such place of polling ; and provided always, that in case the number of voters in any 
 two or more baronies or half baronies in any county shall not exceed the number of six hun- 
 dred voters, it shall be lawful for the returning officer or officers, and he and they are here- 
 by required, to provide that the poll for such baronies and half baronies shall be taken in one 
 place of polling only. 
 
 LI I. And further, that from and after the passing of this act every poll which shall be 
 demanded at any election of a member or members to serve in parliament for any county, 
 city, town, or borough in Ireland shall commence on the day upon which the same shall be 
 demanded, or upon the next day after (unless such day shall happen to be a Sunday, Christ- 
 mas day, or Good Friday, and in such case on the day next after), and shall be duly and 
 regularly proceeded in from day to day for so many hours of each polling day as the re- 
 turning officer or officers are now by law directed to keep the poll open in counties at large 
 (Sunday, Christmas day, and Good Friday excepted), until the same shall be finished, but 
 so that no poll shall continue more than five days at the most (Sunday, Christmas day, and 
 Good Friday always excepted) ; and if such poll shall continue until the fifth day, then the 
 same shall be finally closed at or before the hour of five o'clock in the afternoon of the same 
 day ; and the returning officer shall immediately after the final close of the poll declare the 
 name or names of the person or persons having the majority of votes in such poll, and shall 
 forthwith make a return of such person or persons. 
 
 LI 1 1. Provided alwa)S that it shall and may be lawful for the returning officer at any 
 such election, and he is hereby required, on any day during such election after the first day 
 of polling, to close finally the poll in any booth or place of polling in which no more than 
 twenty persons have polled during that day: provided alwa)S, that in case it shall appear 
 to the returning officer, upon the evidence of two or more credible persons, taken upon oath, 
 and which oath the returning officer is hereby empowered to administer, that any persons 
 intending to offer themselves to poll in such booth or place of polling have been prevented 
 by force or violence from coming to the same for the purpose of polling on that day, that 
 then and in such case it shall be lawful to and for the returning officer to keep such booth 
 or place of polling open for another day, and so on from day to day, if such force or violence 
 be repeated, and be found to have taken place upon such evidence as aforesaid, to the satis- 
 faction of the returning officer, and for such purpose to delay the final close of the poll and 
 the return so long as may be necessary. 
 
 LI V. The certificate by this act directed, or in default of its production the original affi- 
 davit of registry, shall be conclusive of the right of voting of the person named therein; 
 and that the returning officer or his deputy, upon the production of such certificate or affi- 
 davit by such person, and upon his taking the oaths hereinafter mentioned, if n quired so 
 to do, shall admit such person to vote without any other oath or examination, and shall in- 
 dorse the initials of his name thereon, with the day and year when the same was produced ; 
 and that no inquiry whatever as to the right of voting of such persons shall be permitted to 
 be made, nor shall any scrutiny be allowed ; save only that the sheriff", returning officer, or 
 his deput)', shall, if required by any candidate or his agent, and he is hereby authorized so 
 to do, immediately before the polling of any voter, administer to such voter the oath in the 
 schedule B to this act annexed ; and provided also, that the oath against bribery may be 
 administered, at the desire of any candidate, to any person tendering his vote, in like man- 
 ner as the &Hme might be administered before the passing of this act; and provided alwa\s, 
 that if such person so tendering his vote shall appear by such certificate to have before voted 
 
OF THE LAW OF liMGLAND. 411 
 
 at such election, or shall refuse to take the said oaths or either of them when req^uired so to 
 do, the sherifli returning officer, or his deputy shall reject such vote. 
 
 L V. AH laws, statutes, and usages now in force respecting elections of members to serve 
 in parliament for any county, city, town, or borough in Ireland shall, save so far as they are 
 respectively repealed or altered by this act, remain and they are hereby re-enacted and de- 
 clared to be in full force; and all elections for any member or members to serve in this 
 present parliament, to be hereafter had, shall be held and made as if this act had not been 
 
 LVI. Provided always, that if a dissolution of this present parliament shall take place 
 after the passing of this act, and before the termination of the special sessions for any county, 
 city, or town, to be first holden under the provisions of this act, in such case such persons 
 only shall be entitled to vote at the election of members to serve in a new parliament for 
 such county, city, or town, as would have been entitled to register their votes under this act, 
 if the day of election had been the day for such registry, and such persons shall be entitled to 
 vote in such election although they may not be registered according to the provision of this 
 act, any thing herein contained notwithstanding. 
 
 LVI I. If any sheriiF, clerk of the peace, town clerk, returning ofiicer, or other person 
 shall wilfully contravene or disobey any provisions of this act, he shall for each such ofi'ence 
 be liable to be sued for the sum of one hundred pounds, to be recovered by action of debt or 
 information, in the name of his majesty's attorney general or any other person, in any of 
 his majesty's superior couits of record at Dublin ; and the jury may in any such action find 
 a verdict for the sum of one hundred pounds, or for any sum not less than ten pounds, as 
 they shall think just j and the defendant against whom such verdict shall be found shall pay 
 the amount thereof, with full costs of suit, to the use of his majesty or of the person suing. 
 
 LVIII. Nothing herein contained shall in anywise prejudice or aifeet the right of any 
 party grieved by any such misconduct of any sheriiT, returning ofiicer, or other pereon, to 
 recover in an action on the case for a false return, or such other action as such person may 
 by law be then entitled to maintain. 
 
 LIX. If any person, at the time of any election being in the enjoyment of any oflice dis- 
 qualif}ing him from voting at such election, or being otherwise disqualified, or having 
 ceased to be qualified, shall notwithstanding presume to vote at such election, such person 
 shall forfeit to his majesty a sum of one hundred pounds, and shall be liable to all penalties, 
 forfeitures, and provisions to which he would have been subject for such offence by any law 
 in force at the time of committing the same; and in case of a petition to the house of com- 
 mons for altering the return, or setting aside the election at which such person shall have 
 voted, his vote shall be struck off" by the committee, with such costs as to them shall seem 
 meet, to be paid by him to the petitioner. 
 
 LX. In addition to the persons now qualified to vote at the election of a member to serve 
 in parliament for the university of Dublin, every person, being of the age of twenty-one 
 years, who has obtained or hereafter shall obtain the degree of master of arts, or any higher 
 degree, or a scholarship or fellowship in the said university, and whose name shall be upon 
 the boolis of the said university, shall be entitled to vote at any election of a member or 
 members to serve in any future parliament for the said university, so long as the name of 
 such person shall be kept and continue to be kept on the books of the said university as a 
 member thereof, subject however, and according to the rules and statutes of the said uni- 
 versity : provided always, that no person shall be entitled to vote at any election of a member 
 or members to serve in any future parliament for the said university by reason of any de- 
 gree of a purely honorary nature. 
 
 LXI. Every person who now is a master or bachelor of arts, or of any higher degree, or 
 who has been a scholar or fellow of the said university, and who shall have voluntarily re- 
 moved his name from the books of the said university, shall be entitled, within six months 
 after the passing of this act, and not after, to replace the same thereon, upon paj miait of 
 the sum of two pounds ; and every person whose name shall be continued upon the said 
 boolcs, for the purpose of entitling him to vote at the election of members to serve in parlia- 
 ment for the said university, shall be liable to pay to the said college an Jinnual sum ot one 
 pound, and no more ; and that upon the refusal of any such person to pay the annual sum 
 
^•la RISE, PROGRESS, AND IMPROVEMENT 
 
 of one pound, within one month after the same shall have been demanded, his name shall 
 be removed from said books, and shall not be again replaced thereon. 
 
 LXII. The words "city, town, or borough," used in this act, shall be construed to in- 
 clude all places, whether corporate or othervvMse, entitled to send a member or members to 
 parliament ; and the words " returning officer," used in this act, shall be construed to 
 include every person by his office entitled to preside at the election of a member or mem- 
 bers to serve in parliament, and to include several persons so entitled. 
 
 LXIII. No clergyman shall be permitted to vote as such at any election of a member or 
 members to serve in any future parliament, unless his name shall have been duly registered 
 as a freeholder under this act. 
 
 LXI V. And be it declared and enacted, that every person entitled to two or more free- 
 hold estates or interests in any county, county of a city, or county of a town in Ireland, the 
 annual value whereof shall in the aggregate amount to ten pounds, according to the mode ot 
 valuing freeholds by this act prescribed for the qualification of electors, and who shall in all 
 other respects be duly qualified, shall be admitted to register and vote according to the pro- 
 visions of this act, as if said separate freehold were one freehold, although no one of such 
 freehold estates may be of such annual value of ten pounds, according to such mode of 
 valuation. 
 
 LXV. And whereas by an act passed in the first year of his late majesty's reign,* in- 
 tituled *« An act for the better regulation of polls, and for making further provision touching 
 the election of members to serve in parliament for Ireland," it is enacted, that if any per- 
 son shall vote at any election by virtue of the registry of an alleged freehold under a lease 
 of lands and tenements for a life or lives made by the lessor, who had not at the time of 
 making the same a freehold estate therein, or under a lease of lands or tenements for a life 
 or lives, which lease is to end and determine on some such covenant or condition that a free- 
 hold estate has not been demised by the same, or under a lease of lands or tenements for a 
 life or lives, or a certain number of years, which life or lives is or are dead, or under a lease 
 of lands or tenements for a life or lives, which lease has expired or been surrendered, after 
 due notice not to vote by virtue of any such registry shall have been given to such person 
 by auy candidate, or by any inspector of any candidate, and which notice every candidate 
 and inspector is thereby authorized and empowered to give such person at any time before 
 or during such election, or in the place of polling, such person, on being convicted thereof, 
 shall forfeit to any person who shall sue for the sum of twenty pounds, to be recovered by 
 him or them, with treble costs of suit, by action of debt, at any general quarter sessions of 
 the peace, or at any assizes that may be held for the county in which such election shall have 
 taken place: and whereas by an act passed in the fourth year of his late majesty's reign,f 
 intituled " An act to consolidate and amend the several acts then in force, so far as the same 
 relate to the election and return of members to serve in parliament for counties of cities 
 and counties of towns in Ireland," a similar provision is made with reference to such counties 
 of cities and counties of to^vns : and whereas the giving of such cautionary notices by can- 
 didates and inspectors, at and during the time of an election, and in the place of polling, has 
 been productive in many cases of vexatious delays and inconvenience to voters, and is inex- 
 pedient and unnecessary ; be it therefore enacted, that from and after the passing of this act 
 so much of the said recited acts of the first and of the fourth year of his late majesty's reign 
 as authorizes and empowers every candidate and inspector to give such cautionary notices to 
 voters at any time before or during the elections in Ireland, or in the place of polling at 
 such elections, and as renders it necessary that such notices shall have been so given to any 
 person voting by virtue of the registry of the said therein recited alleged freeholds, in order 
 to such person being or becoming subject to and incurring the penalties thereby imposed, 
 shall be and are hereby repealed : provided always, that nothing herein contained shall 
 exempt or be construed to exempt from such penalties any person who at the election of any 
 member or members to serve in parliament for any county, or county of a city, or county of 
 a town in Ireland, shall vote by virtue of the registry of such alleged freehold as aforesaid ; 
 but such person, on being convicted thereof, notwithstanding the want of such notice by any 
 
 • 1 Gto. IV., c. 11 + 4 Geo. IV. c. 55. 
 
OF THE LAW OF ENGLAND. 413 
 
 candidate or inspector, shall forfeit to any person or persons who shall sue for the same the 
 said sum of twenty pounds, to be recovered by him or them, with treble costs of suit, by 
 proceeding in the nature of civil bill, at any general quarter sessions of the peace that may 
 be held for the county, or county of the city, or county of the town in which such election 
 shall have taken place, or by action of debt in any of his majesty's courts of record in 
 Ireland. 
 
 LXVI. The lord lieutenant or other chief governor or governors of Ireland shall be and 
 are hereby authoiized, by warrant under his or their hand, to appoint, for the duty of pre- 
 siding at the special sessions to be fii-st held for registering voters under this act, in any 
 county, city, town, or borough, or in any two or more of such counties, cities, towns, or 
 boroughs, any barrister or barristers of not less than six years' standing at the Irish bar to 
 be assistant to or deputies of the assistant barrister or chairman ; and when two or more bar- 
 risters shall be appointed for the same county, riding, city, town, or borough, they shall at- 
 tend at the same place together, but shall sit apart from each other, and hold separate courts 
 at the same time for the dispatch of business; and all the powers, duties, rights, and pri- 
 vileges given or imposed by this act to or upon any assistant barrister or chairman, are, and 
 shall be, by virtue of such warrant, given to and imposed upon sucli assistants or deputies ; 
 and all acts to be done by such deputies or assistants shall be of the same efficacy in law 
 as if done by the assistant barrister or chairman upon whom such duties would have other- 
 wise devolved under this act. 
 
 LXVII. And further, every barrister appointed to preside at any special sessions under 
 this act (such barrister not being an assistant barrister or chairman) shall be paid at the rate 
 of five guineas for every day that he shall be so employed, over and above his travelling 
 and other expenses ; and every such barrister, after the termination of his last sitting, shall 
 lay or cause to be laid before the lord lieutenant or other chief governor or governors of 
 Ireland, a statement of the number of days during which he shall have been employed, and 
 an account of the travelling and other expenses incurred by him in respect of such emploj- 
 ment ; and such lord lieutenant or other chief governor or governors shall make an order for 
 the amount to be paid to such barrister out of the consolidated fund •, and in order to provide 
 a remuneration for the assistant barristers or chairman for the additional labour imposed on 
 them by this act, it shall and may be lawful for the said lord lieutenant or other chief gover- 
 nor or governoi-s to direct that the said assistant barristers and chairman shall be paid, in 
 addition to the salaries now by them receivable, such yearly sum, not exceeding in any case 
 the sum of one hundred pounds, at the discretion of the said lord lieutenant, &c., as he or 
 they shall by warrant under his or their hand direct, such additional salaries to be pa}able 
 at the same time and in the same manner as the salaries of the said assistant barristers are 
 now payable. 
 
 LXVII I. Provided always, that in order to enable the chairman of the sessions for the 
 county of Dublin to discharge the duties imposed on him by this act, with regard to the 
 registry of voters in and for the city of Dublin, at such sessions as are to be iiolden for that 
 purpose after the first or special sessions for registering voters, it shall and may be lawful for 
 the chairman of the sessions of the county of Dublin to discharge the duties of such suljse- 
 quent registries in and for the city of Dublin by a sufficient deputy, to be appointed by such 
 chairman for that purpose, and which deputy shall be a barrister of six years' stiinding at 
 the least at the Irish bar, and shall be approved of by the lord lieutenant or other chief 
 governor or governors of Ireland; and all the powers, duties, rights, and privileges given 
 or imposed by this act upon such chainnan respecting such registries, are and shall be, by 
 virtue of such appointment and approbation as aforesaid, given to and imposed on such de- 
 puty; and all acts done by such deputy, respecting such registries in and for the said 
 city of Dublin, shall be of the same efficacy in law as if done by the said chairman himself; 
 and such deputy shall, at the end of each sessions, be paid and remunerated in the same 
 manner, and at the same rate, as any other deputy appointed to register votes under this 
 act 
 
 LXIX. And further, this act may be amended, altered, or repealed b} any act or acts 
 to be passed in this present session of parliament. 
 
4U 
 
 RISE, PROGRESS, AND IMPROVEMENT 
 
 SCHEDULES TO WHICH THE FOREGOING ACT REFERS 
 
 SCHEDULE A. 
 
 LKT OF ASSISTANT BARRISTERS AND CHAIR3IAN BEFORE WHOJVI SESSIONS FOR REGISTKIUNG 
 VOTES IN EACH CITY, TOWN, OR BOROUGH ARE TO BE HELD. 
 
 SESSIONS FOR 
 
 BEFORE 
 
 Armagh borough .... 
 
 Assistant ban-ister of Armagh county. 
 
 Athlone borough 
 
 
 
 Assistant barrister of Westmeath county. 
 
 Baiidon Bridge borough 
 
 . 
 
 
 Assistant barrister of west riding of Cork countj'. 
 
 Biilfiist borough . . 
 
 
 
 Assistiint barrister of Antrim county. 
 
 Carlow borough . . 
 
 
 
 As?ist:int barrister of Carlow. 
 
 Carrickfergus borough 
 
 
 
 Assistant barrister of Antrim count}-. 
 
 Cashel borough . . 
 
 
 
 Assistant barrister of Tippeiriry county. 
 
 Clonmel borough 
 
 
 
 Assistant barrister of Tippeiar)' county. 
 
 Coleraine borough . 
 
 
 
 Assistiint barrister of Londomlerr} county. 
 
 Cork city . . . . 
 
 
 
 Assistant barrister of east riding of Cork 'county. 
 
 Downpatrick borough 
 
 
 
 Assistant barrister of Down county. 
 
 Drogheda borough . 
 
 
 
 Assistant barrister of Louth county. 
 
 Dublin city .... 
 
 
 
 Cliairman of sessions of county of Dublin. 
 
 Dundalk borough . . 
 
 
 
 Assistant barrister of Louth county. 
 
 Dungannon borough 
 
 
 
 Assistant barrister of Tyrone county. 
 
 Duugarvan borough 
 
 
 
 Assistant barrister of Waterford county. 
 
 Eimis borough . . 
 Enniskillen borough 
 
 
 
 Assistant barrister of Clare county. 
 
 
 
 Assistant barrister of Fermanagh county. 
 
 Galway town . . . 
 
 
 
 Assistant barrister of Galway county. 
 
 Kilkenny city . . . 
 
 
 
 Assistant barrister of Kilkenn) county. 
 
 Kinsale boj-ough . . 
 
 
 
 Assistant biirrister of east i iding of Cork county. 
 
 Limerick city . . . 
 
 
 
 Assistant barrister of Limerick count} . 
 
 Lisburn borough . . 
 
 
 
 Assistant barrister of Antrim county. 
 
 Londonderry city 
 
 
 
 Assistant barrister of Londonderry county. 
 
 Mallow town . . . 
 
 
 
 Assistant barrister of east riding of Cork coun! \ . 
 
 Newry borough . . 
 
 
 
 Assistant banister of Down count}'. 
 
 Portarlington borough 
 
 
 
 Assistant barrister of Queen's county. 
 
 Ross (New) borough 
 
 
 
 Assistant banister of Wexford county. 
 
 Sligo borough . . . 
 
 
 
 Assistant barrister of Sligo count} . 
 
 Tralee borough . . 
 
 
 
 Assistant barrister of Kerry county. 
 
 Waterford city , . 
 
 
 
 Assistant barjister of Waterford county. 
 
 Wexford borough . 
 
 
 
 Assistant barrister of Wexford. 
 
 Youghal borough . . 
 
 
 Assistant barrister of east riding of Cork county. 
 
 SCHEDULE B. 
 
 OATH TO BE TAKEN-BY VOTERS AT POLLING, BEFORE RETURNING OFFICER, SHERIFF, OR HIS 
 DEPUTIES, IF REQUIRED ON BEHALF OF ANY CANDIDATE. 
 
 I, A. B., do swear, [or, being a Quaker, do affirm,] that I am the same [J. B.] whose nainn 
 appears registered in the certificate or affidavit now produced ; and that my qualification as 
 such registered voter still continues ; and that I have not before voted at this election ; and 
 [in the case of householders in cities, towns, and boroughs,] that not more than one half year's 
 grand jury or municipal cesses, rates, or taxes are now due or pajable by me in respect of 
 the premises in this certificate mentioned. 
 
 SCHEDULE C. (No. L) 
 
 FORiM OF NOTICE FOR HOLDING THE FIRST SESSION FOR REGISTERING VOTERS 
 UNDER THIS ACT. 
 
 County, ") 
 
 City, I 
 
 Town, f of [as the case may be.] 
 
 or I 
 
 Borough, J 
 
 Notice is herel>y given, that a session for the purpose of registering the names of persons 
 
OF THE LAW OF ENGLAND. 
 
 415 
 
 entitled to vote at the election of members [or a member] to serve in parliament for the 
 county of [or the city of or the county 
 
 of tiie town of or the borough of as the case 
 
 maij be,] pursuant to an act passed in the second and third years of the reign of king William 
 the Fourtli, will be holden at in the said county of 
 
 [o»- city of or the county of the town of or 
 
 borough of as the case may be,] on the day of next, 
 
 by and before the assistant barrister of the county of [or before the 
 
 chairman, or barrister, as the case may be,] at which time and place applications of persona 
 claiming to be entitled to vote at such elections will be received and taken into considera- 
 tion. 
 
 Dated this day of 
 
 Clerk of the peace of the said county 
 or [or county of the 
 
 city, or county of the town.] 
 
 SCHEDULE C. (No. 2.) 
 
 FORM OF NOTICE TO BE GIVEN OF APPLICATION TO BE REGISTERED AS A VOTER FOR A 
 COUNTY, CITV, TOWN, OR BOROUGH. 
 
 Sir, 
 Take notice, that it is my intention to apply to be registered as a person entitled to vote 
 at elections of a member or members to serve in parliament for the county of 
 [or for the city, town, or borough] of and the particulars of my cLiim 
 
 are as follows: 
 
 Name, description, 
 
 and residence of 
 
 applicant. 
 
 In what right 
 claiming. 
 
 Desmption of property, 
 
 if the same be in respect of property, 
 
 with name of 
 
 barony, townland, parish, street, 
 
 or denommation, 
 
 or place where situate. 
 
 Yearly value 
 
 to be 
 
 registered, 
 
 1 
 
 X. Y. of 
 
 Yeoman, &c. 
 
 Freeholder. 
 
 Leaseholder. 
 
 Householder 
 
 Freeman. 
 
 Rent-charge. 
 
 
 
4*18 RISE, PROGRESS, AND IMPROVEMENT 
 
 SCHEDULE C. (No. 3.) 
 
 LIST OF APPLICATIONS TO BE ENTERED BY THE CLERK OF THE PEACE. 
 
 No. 
 
 Name, description, 
 
 and 
 
 residence of applicant. 
 
 Description of property, 
 
 with name of townland, parish, 
 
 street, &c., 
 
 and right in which registry 
 
 is claimed. 
 
 Yearly value 
 
 to be 
 
 registered. 
 
 
 
 
 1 
 
 SCHEDULE C. (No. 4.) 
 
 OATH OF FREEHOLDERS REGISTERING A FREEHOLD OF THE VALUE OF TWENTY POUNDS OB 
 UPWARDS, NOT ARISING FROM A RENT-CHARGE, IN ANY COUNTY, CITY, OR TOWN. 
 
 I, A. B., of in the county [or of in the city, town, or borough of 
 
 ] Esquire, clerk, [or as the description is,] do swear, that I am a freeiiolder in the 
 county, city, or town of and that I have now a freehold therein, arising from a 
 
 house [or houses, lands, or both, or other hereditaments, as the case may be,\ l}ing and being 
 at [naming the street or place where such house or houses or other heredita?nents 
 
 shall be situate or arise] in the county [city or town] of of the clear yearly value 
 
 of fifty pounds, or twenty pounds, [as the case may be,] at the least, above all rent and 
 charges payable out of the same, except only public or parliamentary taxes, county, church, 
 or parish cesses or rates ; and that the said freehold does not arise from a rent-charge ; and 
 that I have not accepted or procured the said freehold fraudulently, nor in exchange for any 
 freehold in any other county, city, town, or borough. So help me God. 
 
 SCHEDULE C. (No. 5.) 
 
 OATH TO BE TAKEN BY RENT-CHARGER IN ANY COUNTY, CITY, OR TOWN. 
 
 I, A. E., of in the county [or city or town] of Esquire, [or as the 
 
 description is,] do swear, that I am a freeholder in the county of the cily [or town] of 
 
 and «hat I have a freehold therein of the clear yearly value of twenty pounds at the 
 least above all charges payable out of the same, consisting of a rent-charge, granted by deed 
 or instrument bearing date the day of in the year by A. B. of 
 
 on the lands of [naming the lands, hotise or houses, or other here- 
 
 ditaments mentioned in such deed] in the county, city [or town] of ; and that I 
 
OF THE LAW OF ENGLAND. 417 
 
 am in the possession thereof to the clear amount of twenty pounds yearly, and am entitled 
 to receive the same as it becomes due, to and for my own sole use and benefit; and that I 
 have not procured or accepted the same fraudulently, nor in exchange for a freehold in any 
 other county [city or town]. So help me God. 
 
 SCHEDULE C. (No. 6.) 
 
 OATH OF FREEHOLDER REGISTERING A FREEHOLD OF THE ANNUAL VALUE OF TEN 
 POUNDS IN ANY COUNTY, CITY, OR TOWN. 
 
 I, JB. F., of in the county [city or town] of yeoman, [or as the 
 
 (-ase may he,] do swear, that I am a freeholder of the county [county of the city or the 
 town] of and that I have a freehold therein arising from a house [or houses, 
 
 land, or both, as the case may be,] of the clear yearly value of ten pounds above all rent and 
 charges payable out of the same, except only public or parliamentary taxes, county, parish, 
 or church cesses or rates, and cesses on any townland or division of any parish or baronj , 
 lying and being at [naming the townland or townlands or other denomina- 
 
 tions by which the place is generally knoion, and the barony or baronies, or the parish, and 
 street or streets of the county, city, or toion, as the case may be, wherein it is situate,] in the 
 county [city or town] of ; and that the said freehold does not arise from a rent- 
 
 charge, and that the same arises by virtue of the deed, lease, or instrument bearing date 
 the day of in the year [or otherwise stating the nature of the 
 
 title, as the case may be] ; and that I am in the actual occupation thereof by residing thereon, 
 [or by tilling or by grazing, or by both tilling and grazing, as the case may be] ; [and where 
 the freehold is held by any deed, lease, or instrument, adding these words, and that the free- 
 hold is not let or agreed to be let to the person or persons who executed the said deed or in- 
 strument, or to the heirs or assigns of such person or persons, or to any one in trust for him, 
 her, or them, nor do 1 intend to let the same or any part thereof to such person or persons, 
 or any of them, and that I have not agreed to let it for the term for which 1 hold it] ; and 
 that I have not procured or accepted tlie said freehold fraudulently, nor in exchange for a 
 freehold in any other county, city, or town. So help me God. 
 
 SCHEDULE C. (No. 7.) 
 
 OATH OF LEASEHOLDER REGISTERING A LEASEHOLD IN ANY COUNTY, CITY, OR TOWN. 
 
 I, E. F., of in the county [or city or town] of farmer [or as the 
 
 case may be], do swear that I do now hold the lands of [or as the case may be, describing the 
 tenement], situate, lying, and being at under a lease, [deed or instrument, 
 
 as the case may be,] bearing date the day of in the year 
 
 by and between ; and that such leasehold is now of the clear yearly valua 
 
 of twenty pounds [or ten pounds, as the case may be,] over and above all rent and charges 
 payable out of the same, except only public or parliamentary taxes, county, church, or 
 parish cesses or rates, and cesses upon any townland or division of any parish or barony ; 
 and that the said leasehold does not arise from a rent-charge ; and that I have not accepted 
 or procured the said leasehold fraudulently, nor in excliange for any freehold or leasehold 
 in any other county, city, or town, [a7id if the said lea.^eholder be the lessee or assignee of a 
 derivative term, or under lease,] that I am in the actual occupation thereof. 
 
 So help me God. 
 
 SCHEDULE C. (No. 8.) 
 
 OATH TO BE TAKEN BY HOUSEHOLDERS REGISTERING AS VOTERS IN ANY CITY, TOWN, 
 OR BOROUGH. 
 
 I. E. F., of in the city [town or borough] of merchant, [or, ^c, 
 
 as the case may be,] do swear, that 1 am, and have been for six calendar months last past, 
 in possession and actual occupation of the house, warehouse, &c. [describing the premises] 
 
 3 o 
 
418 
 
 RISE, PROGRESS, AND IMPROVEMENT 
 
 situate at in the said city [town or borough] ; and that the said premises are 
 
 bona fide of the clear yearly value of not less than ten pounds [or five pounds, us the case 
 may be] ; and that not more than one half year's grand jury or municipal cesses, rates, or 
 taxes are now due or payable by me in respect to the said premises or any part thereof. 
 
 So help me God. 
 
 SCHEDULE C. (No. 9.) 
 
 OATH TO BE TAKEN BY RESIDENT FREEMEN AND FORTY-SHILLING FREEHOLDERS WHOSE 
 BIGHTS ARE SAVED. 
 
 I, ^. B., of in the city [or town or borough] of merchant [ovy 
 
 SfC. as the case may he], do swear, that I am a freeman or other corporate officer [as the case 
 may be] of the said city, [town or borough,] having a right to vote at elections, for the ssiid 
 city [&c.] of [or that I am a registered forty-shilling freeholder having a right 
 
 to vote at elections for the said city, &c. of as the case may be] ; and tliat I am, 
 
 and for the last six months have been, a resident within the said city [&c.] of or 
 
 within seven statute miles of the usual place of election in the said city [town or borough, as 
 the case may be. ] So help me God. 
 
 SCHEDULE D. (No. L) 
 
 CERTIFICATE OF RENT-CHARGER, FREEHOLDER, OR LEASEHOLDER, 
 
 County, -j 
 
 City, 
 
 Town, V of \as the case may be,] 
 
 or 
 Borough J 
 
 This is to certify, that A. B., of in this county, [city or town, as the case may 
 
 be,] clerk, [merchant, gentleman, farmer, yeoman, &c. as the case may be,] was this day 
 duly registered before me as a voter for tliis [county, &c. as the case may be,] in right of a 
 rent-charge freehold [or leasehold, as the case may be] of the yearly value of fifty pounds, or 
 twenty pounds, or ten pounds, or [as the case may be,] situate at [describing the townland 
 andjAace, &c.] in this county, [city, &c] 
 
 O. judge, chairman, or assistant barrister. 
 O. clerk of the peace. 
 Certificate, No. [&c.] 
 
 SCHEDULE D. (No. 2.) 
 
 CERTIFICATE OF HOUSEHOLDER. 
 
 City, ^ 
 
 '^^or^' [^^ >s </<e cose way 6e.] 
 
 BoroughJ 
 
 This is to certify, that A. B., of in this was this day duly regis- 
 
 tered before me as a voter for this city [town or borough, as the case may be] in right of his 
 house, &c. situate at [describing the place and situation.] Dated this day\of 
 
 O. judge, chairman, assistant barrister, or barrister, &c. 
 O. clerk of the peace. 
 Certificate, No. [&c.] 
 
 City, 
 Town 
 
 SCHEDULE D. (No. 3.) 
 
 CERTIFICATE OF FREEMEN, &C. 
 
 or [ 
 
 Borough) 
 
 This is to certify, that A. B., of 
 
 [as the case may be] 
 
 this 
 
 yeoman [or as the case 
 
OF THE LAW OF ENGLAND. 410 
 
 may be] was this day duly registered before me as a voter for tiiis city [town or borough, 
 us the case may 6(?], in right of his being a resident freeman [or resident forty-shillipg free- 
 holder, an the case viay be]. Dated this day of at 
 
 O. judge, chairman, assistant barrister, or barrister, &c. 
 
 O. clerk of the peace. 
 Certificate, No. '[&c.] 
 
 On the 11th July, 1832, parliament prepared and passed an act which 
 received the royal assent on the above date, for abolishing the punishment 
 of death in certain cases, and substituting a lesser in place of it.* By the 
 act for consolidating and amending the laws in England relative to larceny, 
 and other offences connected therewith, it is among other things enacted, 
 that if any person shall steal in any dwelling-house any chattel, money, or 
 valuable security, to the value in whole of five pounds or more, every such 
 offender, being convicted thereof, shall suffer death as a felon ; and, by the 
 same act, whoever shall steal any horse, mare, gelding, colt, or filly, or any 
 bull, cow, ox, heifer, or calf, or any ram, ewe, sheep, or lamb, or shall 
 wilfully kill any of such cattle with intent to steal the carcass or skin, or 
 any part of the cattle so killed, every such offender shall be guilty of 
 felony, and suffer death as a felon on conviction.t And by another act for 
 consolidating and amending the laws in Ireland relative to larceny and 
 other offences, it is among other things enacted, that if any person shall 
 steal any of the articles above enumerated, on conviction shall suffer death 
 as a felon. It being, therefore, deemed expedient that a milder punish- 
 ment than that of death should be inflicted for any of these offences, so 
 much of the said acts which inflicted the penalty of death for any of the 
 before named felonies were repealed ; and, in place thereof, from and after 
 the 11th July, 1832, any person convicted of any of the above named 
 felonies, or of counselling, aiding, or abetting their commission, shall be 
 transported beyond seas for life. This act expressly prohibits the governors 
 or lieutenant-governors of any colony from giving any pardon or ticket of 
 leave to any person transported, or who shall receive a pardon on condition 
 of transportation, or any order or permission to suspend or remit the 
 labour of any such person, except in cases of illness, until such person, if 
 transported for seven years, shall have served four ; if transported for 
 fourteen years, shall have served six ; or if transported for life, shall have 
 served eight years of labour. It also determines that no person shall be 
 capable of acquiring or holding any property, or of bringing any action 
 for the recovery of any property, until such person shall have duly ob- 
 tained a pardon from the governor or lieutenant-governor of the colony or 
 settlement in which he or she shall have been confined : provided that no- 
 thing in the act, however, shall in any manner affect his majesty's royal 
 prerogative of mercy. J 
 
 * 7 and 8 Geo. IV., c. 29. f 9 Geo. IV., c. 65. | 2 and 3 Will. IV., c. 63. 
 
420 RISE, PROGRESS, AND IMPROVEMENT 
 
 The municipal law of England is divided into two kinds — the unwritten 
 or common law, and the written or statute law. The unwritten law in- 
 cludes not OY\\j general customs, or the common law, properly so called j 
 but also the particular customs of certain parts of the kingdom; and like- 
 wise those particular laws that are by custom observed only in certain 
 courts and jurisdictions. Lord chief justice Wilmot has said, that " the 
 statute law is the will of the legislature in writing; the common law is no- 
 thing else but statutes worn out by time. All our law began by consent 
 of the legislature, and whether it is now law by usage or writing is the 
 same thing. Both statute law and common law originally flowed from 
 the same fountain" — that is, from the sovereign, with consent and advice 
 of his parliament. And lord Hale declares to the same eflTect, " that many 
 of those things that we now take for common law, were undoubtedly acts 
 of parliament, though not now to be found on record."* Though this is 
 undoubtedly the origin of the greatest part of the common law, yet much 
 of it certainly has been introduced by usage, even of modern date, which 
 general convenience has adopted. Such for instance is the law of the road, 
 that horses and carriages should invariably keep the left side of the road, 
 and consequently in meeting should pass each other on the whip hand. 
 This law has not been enacted by statute, and is so modern that professor 
 Christian is the first who has mentioned it in a book of law. But general 
 convenience discovered its necessity, and the judges have so far confirmed it, 
 as to declare frequently at nisi prius, that whoever disregards this salutary 
 rule, is answerable in damages for all the consequences. The laws relat- 
 ing to bills of exchange, insurance, and all mercantile contracts, are as 
 much the general law of the land, as those relating to marriage, or mur- 
 der. And, in consequence, merchants have frequently imagined that all 
 their new fashions and devices immediately become tlie law of tlie land, 
 which is a mistake : merchants ought to take tlieir law from the courts, 
 and not the courts from merchants. 
 
 The written laws of the kingdom are statutes, acts, or edicts, made by 
 the king's majesty, by and with the consent of the three estates of parlia- 
 ment, — the lords spiritual and temporal, and commons in parliament as- 
 sembled; of which Magna Charta is the oldest now extant, as confirmed 
 in parliament, 9 Hen. III., though doubtless there were many acts before 
 that time, the records of which are now lost, and their determinations are 
 at present, perhaps, currently received for the maxims of the old common 
 law. 
 
 Statutes are either general or special, public or private. A gener- 
 al or public act is an universal rule, that regards the whole community : 
 and of which the courts of law are bound to take notice judicially and ex 
 officio : without the statute being particularly pleaded, or formally set 
 
 * Hist. Com. Ijaw. 
 
 V 
 
OF THE LAW OF ENGLAND. 421 
 
 forth by the party who claims an advantage under it. Special or private 
 acts are rather exceptions than rules, being those which only operate up- 
 on particular persons and private concerns : and of these (which are not 
 promulgated with the same notoriety as the former) the judges are not 
 bound to take notice, unless they be formally shown and pleaded.* For 
 instance, the statute to prevent spiritual persons from making leases for 
 longer terms than twenty-one years, is a puNic act : because it is a rule 
 prescribed to the whole body of spiritual persons in the nation : but an act 
 for any particular bishop to make a lease to A. B. for sixty years, is an 
 exception to this rule; it concerns only the parties and that particular 
 bishop's successors : and is therefore a private act. Statutes are also 
 either declaratory of the common law, or remedial of some of its defects, 
 and are therefore generally mentioned in contradistinction to penal statutes; 
 declaratory, where the old custom of the kingdom is almost fallen into 
 disuse or become disputable; remedial, those 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, from the mistakes and unadvised deter- 
 minations of judges, or from any other cause whatsoever. And to ac- 
 complish this, the common law must be enlarged where it was too cir- 
 cumscribed, or restrained where it was too lax and luxuriant; which has 
 given rise to another subordinate division of remedial acts, called enlarg- 
 ing and restraining statutes. 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 : that is, 
 how the common law stood at the making of the act; what the mischief 
 was for which the common law did not provide; and what remedy the par- 
 liament may have already provided. 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 
 otliers having spiritual promotions^ is held not to extend to bishops. 
 With respect to penal statutes, they must be construed strictly^ though 
 the statutes against frauds are to be liberally and beneficially expounded. 
 The reason of this difference is, because the former statutes act upon the 
 offender, whereas the latter upon the offence : 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 superseded by a new one. But 
 if a statute which repeals another be itself repealed, the first statute is 
 thereby revived without any formal words for that purpose. 
 
 Many places besides the realm of England are subject to its laws. Wales 
 continued for many centuries independent of England ; it was subdued 
 
 * 13 Eiiz., c. 10. 
 
422 RISE, PROGRESS, AND IMPROVEMENT 
 
 and divided among the conquerors by William I. ; it was completely an- 
 nexed to the crown of England by Edward I. in 1203; but, till the reign 
 of Henry VIII. it was governed by its own laws. In the year 1535 an 
 act of parliament declared that the dominion of Wales shall be for ever 
 united to the kingdom of England : that all Welshmen 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 none other, shall be used in Whales : with many 
 other provisions with regard to the regulation of the police of this ancient 
 principality. This union sent twenty-seven Welsh members into the Eng- 
 lish house of commons, which continued till the late reform bill altered the 
 whole constitution. 
 
 On the death of Alexander III., a disputed succession to the crown of 
 Scotland, gave Edward I. a pretence for meddling in its affairs, and partly 
 by treachery, and partly by force of arms, he reduced that kingdom for a 
 short time to the dominion of the laws of England. He carried the crown 
 and regalia to England, with all its public records, the latter of which were 
 lost in conveying them back to Scotland by sea, in 1660, in the reign of 
 Charles II. Notwithstanding the happy accession of James I., Scotland 
 continued for more than a century a separate and independent kingdom, 
 although formed by nature to be but one people. Sir Edward Coke ob- 
 serves how marvellous a conformity there was, not only in the religion and 
 language of the two nations, but also in their ancient laws, the descent of 
 their crowns, their parliaments, their titles of nobility, their officers of state 
 and of justice, their writs, their customs, and even the language of their 
 laws. Upon which account he supposes the common law of each to have 
 been originally the same; especially as the most ancient and authentic book 
 called Megia Majestas, containing the most ancient common law of Scot- 
 land, is extremely similar to that of Glanvil, which contains the principles 
 of the English common law, as it stood in the reign of Henry II. And 
 the many diversities subsisting between the two laws at present, may be 
 easily accounted for, from a diversity of practice, in two large jurisdic- 
 tions, which had no communication with each other, and from the acts of 
 two distinct and independent parliaments, which have in many points al- 
 tered and abrogated the old common law of both kingdoms. 
 
 The municipal or common laws of England are, generally speaking, of 
 no force or validity in Scotland; because, by the act of union, her own 
 municipal laws were ordained to be observed, unless altered by parliament. 
 The town of Berwick-upon-Tweed was originally part of the realm of 
 Scotland, and, as such, was for a time reduced by king Edward I. into 
 the possession of the crown of England; during which subjection, it re- 
 ceived from that prince a charter which was confirmed by king Edward 
 III. with some additions after it was ceded by Edward Baliol, to be for 
 
OF THE LAW OF ENGLAND. 423 
 
 ever united to the crown and realm of England; and it was particularly 
 granted that it should be governed by the laws and usages which it enjoyed 
 during the time of king Alexander III., before its reduction. James I. 
 new-modelled its constitution, and granted a new charter, putting it upon 
 an English footing. Though it has, therefore, some local peculiarities, 
 derived fr'^m the ancient laws of Scotland, yet, it is now clearly part of 
 the realm of England, being represented by burgesses in the house of com- 
 mons, and bound by all the acts of the British parliament, whether speci- 
 ally named or otherwise. 
 
 Ireland, originally called lerni, Hibernia, and also Scotia, was formerly 
 governed by its own kings, till it was conquered by Henry II. It was de- 
 nominated the lordship or dominion of Ireland, and the king was simply 
 styled dominus Hihernice^ lord of Ireland, till the 33d year of the reign 
 of Henry VIII., when he assumed the title of king. Henry II. planted 
 an English colony in it, from whom a great proportion of the present in- 
 habitants are descended, and the laws of England were then received and 
 sworn to by the Irish nation assembled at the council of Lismore; and, al- 
 though Ireland continued from that time to the reign of George III. a 
 distinct kingdom, still it remained in a state of dependence on England, 
 and necessarily conformed to, and was bound by, such laws as the superior 
 state thought proper to prescribe or sanction. At the time of its conquest, 
 Ireland was governed by the Brehon law, so styled from the name of the 
 Irish judges, who were called Brehons : to which the Irish clung tena- 
 ciously till Edward III. entirely abolished it by an act of parliament holden 
 at Kilkenny, which unanimously declared it to be " no law but a lewd cus- 
 tom crept in of later times." The delay occasioned by sending over acts 
 of the Irish parliament to the British ministry before they could pass into 
 a law, created much inconvenience, which evil with some others, turned the 
 attention of the English cabinet to a union of the two kingdoms, the arti- 
 cles of which have been already given, p. 267. This great political measure 
 was completed on the 2d 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 em- 
 pire. 
 
 The Isle of Man was formerly a distinct territory from England, and 
 was not governed by its laws, neither, unless particularly named, did an 
 act of parliament extend to it. It was anciently a subordinate feudatory 
 kingdom, subject to the crown of Norway ; then to king John and Henry 
 
 III. of England, and afterwards to the kings of Scotland, whicli is the 
 reason that the bishop of Sodor and Man has not a seat in the house of 
 lords; it afterwards fell to the crown of England; and at length Henry 
 
 IV. claimed the island in right of conquest, and conferred it on the earl of 
 Northumberland; upon whose attainder it was granted under the title of 
 
424 RISE, PROGRESS, AND IMPROVEMENT 
 
 the lordship of Man, by letters patent, Ttli of Henry IV., to Sir John 
 de Stanley. It continued in his lineal descendents for eight generations, till 
 the death of Ferdinand, earl of Derby, in 1594, wlien a controversy, con- 
 cerning its inheritance, arose between his daughters and William his surviv- 
 ing brother : upon which, and a doubt which was started concerning the 
 validity of the original patent, the island was seised into queen Elizabeth's 
 •hands. James I. granted it to several individuals; all of which having 
 either expired or being surrendered, it was granted by James I. to Wil- 
 liam, earl of Derby, and the heirs male of his body, with remainder to his 
 heirs general. On the death of James, earl of Derby, in 1735, the male 
 line of William failing, the duke of Athol succeeded to the island, as heir 
 general, by a female brancli. In the mean time, though the title of king 
 had long been disused, the earls of Derby, as lords of Man, had always 
 maintained a sovereign authority, by assenting or dissenting to laws, and 
 exercising an apellate jurisdiction. Tliough no English writ or process 
 from Westminster was of any authority in Man; yet, an appeal lay from 
 the lord of the island to the king of Great Britain in council. But the 
 distinct jurisdiction of this little subordinate royalty being found inconve- 
 nient for the purposes of public justice, and for the revenue,* authoiity was 
 given to the treasury to purchase the interest of the then proprietor, for 
 the use of the crown, in order to break up the asylum which it afforded 
 for debtors, outlaws, and smugglers. This purchase was completed in 
 the year 1765, and confirmed by parliament,f after which the wliole island 
 and all its dependencies were inalienably vested in the crown, and sub- 
 jected to the regulations of the British excise and customs. The landed 
 property, however, of the Athol family, their manorial rights and emolu- 
 ments, with the patronage of the bishopric, and other ecclesiastical benefi- 
 ces, were excepted. 
 
 The islands of Jersey, Guernsey, Sark, Aldemey, and their appendages, 
 were parcel of the duchy of Normandy, and were united to the crown of Eng- 
 land by the first princes of the Norman line. They are governed by their 
 own laws, which are chiefly the ducal customs of Normandy, as contained 
 in an ancient book of great authority called Le Grand Coustumier. Writs 
 from the courts of Westminster are of no force there: but the king's com- 
 mission is : they are not bound by acts of parliament, unless particu- 
 larly named therein. All causes are originally determined by their own 
 oflQcers, the bailiffs, and jurats of the islands; but an appeal lies from them 
 to the king in council in the last resort. 
 
 Besides these islands, the colonies in more distant countries are also in 
 
 some respect subject to the English laws. In colonies where the lands are 
 
 claimed by right of occupancy, when found desert and uncultivated, and 
 
 thereafter peopled from the mother country, then the English laws, being the 
 
 * 12 Geo. I., c. 8. t 5 Geo. III., c. 26. 
 
OF thp: law of England. 425 
 
 natural birthright of the people, are establislied; but when already peo- 
 pled and cultivated, and gained by conquest or ceded by treaty from 
 other European nations, then the laws of the kingdom which originally 
 held the sovereignty are respected, and so many of the English laws only 
 are introduced as are applicable to the situation and condition of the new 
 colony. Lord Mansfield has proved by learned arguments that the king 
 can change those laws, as circumstances require, and that he has a legis- 
 lative authority by his prerogative alone over a ceded or conquered coun- 
 try. The American and West India colonies are principally of the latter 
 sort, and being no part of the mother country, but distinct, although de- 
 pendent dominions, the common law of England, as such, has no allowance 
 or authority there; they are subject, however, to the control of parliament, 
 though they are not bound by any acts of parliament, unless particularly 
 named. With respect to their interior polity, they are principally of three 
 sorts. I. Provincial establishments, the constitutions of which depend on 
 the respective commissions issued by the crown to the governors, and the 
 instructions which usually accompany those commissions : under the au- 
 thority of which, provincial assemblies are constituted, with the power 
 granted to them by the crown of making local ordinances, not repugnant 
 to the laws of England. II. Proprietory governments, granted out by 
 the crown to individuals, in the nature of feudatory principalities, with 
 all the inferior regalities, and subordinate powers of legislation, which for- 
 merly belonged to the owners of counties palatine : yet, still with these 
 express conditions, that the ends for which the grant was made be substan- 
 tially pursued, and that nothing be attempted which may derogate from 
 the king's right of sovereignty. III. Charter governments, in the nature 
 of civil corporations, with the power of making bye-laws for their own in- 
 terior regulation, not contrary to the laws of England ; and with such 
 rights and authorities as are specially given them in their several charters 
 of incorporation. The form of government in most of them is borrowed 
 from the mother country. They have a governor named by the king — 
 in some proprietory colonies by the proprietor — who is his representative 
 or deputy. They have their own courts of justice, from whose decisions 
 an appeal lies to the king in council. Their general assemblies, which are 
 their house of commons, with their council of state, which is their upper 
 house or house of peers, with the concurrence of the governor, who is the 
 king's representative, make laws suited to their own emergencies.* But it 
 is particularly declared, that all laws, bye-laws, usages, and customs, in 
 practice, in any of the colonies which are repugnant to any law, made or 
 to be made in England, relative to the said colonies, shall be utterly void 
 and of none effect. And, because several of the colonies had claimed a 
 sole and exclusive right of imposing taxes upon themselves, an act of par- 
 
 *7&8 Will. IIL.c. 22. 
 3 H 
 
^26 RISE, PROGRESS, AND IMPROVEMENT 
 
 liament * expressly declared that all his majesty's colonies in America have 
 been, are, and of right ought to be, subordinate to and dependent on the 
 imperial crown of Great Britain; which has full power and authority to 
 make laws and statutes of sufficient validity to bind the colonies and peo- 
 ple of America, subjects of the crown of Great Britain in all cases whatso- 
 ever. This authority was very forcibly exemplified and enforced by the 
 statute f for suspending the legislature of New York, and by several subse- 
 quent statutes. By another actij: George III. was empowered to conclude 
 a truce or treaty with the American colonies, and by his letters patent to 
 suspend or repeal any acts of parliament which related to those colonies. 
 And by the first act of the definitive treaty of peace and friendship between 
 » his Britannic majesty and the United States of America, signed at Paris, 
 September 3, 1783, his Britannic majesty acknowledges the United States 
 of America to be free, sovereign, and independent states. 
 
 The kingdom of Hanover and his majesty's other property in Germany, 
 being entirely unconnected with the laws of England, do not communicate 
 with this nation in any respect whatever. The English legislature had 
 wisely remarked the inconveniences which Iiad formerly resulted from the 
 continental territories which the princes of the Norman line brought with 
 them, and from Anjou and its appendages which fell to Henry II. by 
 hereditary descent, and engaged England in foreign wars for nearly 
 four hundred years, till, happily for the peace and prosperity of the nation, 
 they were lost in the reign of Henry VI. From that time, they observed 
 that our maritime interests were better understood, and more closely pur- 
 sued; and, in consequence of resting from civil wars and being removed 
 from continental politics, the nation began to flourish and become more 
 considerable in Europe, than when her princes possessed continental terri- 
 tories, and her councils were distracted by foreign interests. In conse- 
 quence of this experience and these considerations, a clause was wisely in- 
 serted in the act of settlement, § which provided, " that in case the crown 
 and imperial dignity of this realm, shall hereafter come to any person 
 not being a native of this kingdom of England, this nation shall not be 
 obliged to engage in any war for the defence of any dominions or territories 
 which do not belong to the crown of England, without consent of parliament." 
 
 The main or high seas are part of the realm of England, and on which 
 the courts of admiralty have jurisdiction, but they are not subject to the 
 common law. The main sea begins at low water mark; but, between 
 the high water 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; and the other upon land when it is ebb. 
 
 The territory of England is liable to two divisions, the one ecclesi- 
 astical, the other civil. 
 *6Geo. III.,c. 1'^.— t7Geo. in.,c.69.— J 22 Geo. III.,c. 46.— § l2&13Wil. III., c. 3. 
 
OP THE LAW OF ENGLAND. 427 
 
 I. The ECCLESIASTICAL is primarily divided into two provinces, Canter- 
 bury and York. A province is the circuit of an archbishop's jurisdiction. 
 Eacli province contains several dioceses or sees of suffragan bishops : Canter- 
 bury containing twenty-one, and York three, besides the bishopric of Man, 
 wliich was annexed to the province of York by Henry VIII. Again, every 
 diocese is divided into archdeaconries, whereof in all there are sixty; each 
 archdeaconry into rural deaneries, which are the circuit of the arch-deacons 
 and rural deans' jurisdictions; and every deanery is divided into parishes. 
 
 II. The CIVIL division of the territory of England is into counties, hun- 
 dreds, tithings, or towns, which division, as it now stands, seems to owe 
 its original to Alfred : who, to prevent the rapines and disorders which 
 formerly prevailed in the realm, instituted tithings ; so called from the 
 Saxon, because ten freeholders with their families composed one. These 
 all dwelt together, and were sureties or free pledges to the king for the 
 good behaviour of each other. One of tlie principal inhabitants of the 
 tithing is annually appointed to preside over the rest, and is called the 
 tithing man, the headborough, and in some countries the borsholder, or 
 boroughs-elder. 
 
 Tithings, towns, or vills, are of the same signification in law. A city 
 is a town incorporated, which is or has been the see of a bishop. A 
 horough is a town, either corporate or not, tliat sends burgesses to parlia- 
 ment. As ten families of freemen composed a town or tithing, so ten 
 tithings or ten times ten families composed a superior division, called a 
 hundred. The hundred is governed by a high constable or bailiff. In 
 some of the more northern counties these hundreds are called wapentakes^ 
 because the people at a public meeting confirmed their union with the 
 governor by taking or touching his weapon or lance. 
 
 A county or shire is composed of an indefinite number of these hun- 
 dreds. Shire is a Saxon word signifying a division : but a county, comi- 
 tatus, is evidently derived from comes, the count of the Franks; that is, 
 the earl or alderman of the shire, to whose government it was intrusted. 
 This he usually exercised by his deputy, still called in Latin vice-comes, and 
 in English, the sheriff, shrieve, or shire-reeve, signifying the officer of the 
 shire, upon whom its civil administration is now entirely devolved. In 
 some counties there are intermediate divisions between the shire and the 
 hundreds, as lathes in Kent, and rapes in Sussex, each of them contain- 
 ing about three or four hundreds. These had formerly lathe-reeves and 
 rape-reeves, acting in subordination to the shire-reeve. Where a county 
 is divided into three of these intermediate jurisdictions, they are called 
 trith'mgs; and which were anciently governed by a trithing-reeve. These 
 still subsist in the extensive county of York, where by an easy corruption 
 they are called ridings. 
 
 There are forty counties in England, and twelve in Wales. Three of 
 these, Chester, Durham, and Lancaster, are called counties palatine, so 
 
428 RISE, PROGKESS, AND IMPROVEMENT, &c. 
 
 called a palatio, because their owners, the earl of Chester, the bishop of 
 Durham, and the duke of Lancaster, had in those counties jura regalia^ 
 as fully as the king has in his palaces. They might pardon treasons, mur- 
 ders, and felonies; they appoint all judges and justices of the peace, all 
 writs and indictments run in their names, as they do in the king's in other 
 counties J and all offences are said to be done against their peace. These 
 palatine privileges were in all probability originally granted to the coun- 
 ties of Chester and Durham, because they bordered upon enemies' coun- 
 tries, in order that the inhabitants might have justice administered at 
 home, and not be obliged to go out of the county and leave it open to the 
 enemies' incursions. Lancaster was created such by Edward III., in fa- 
 vour of Henry Plantagenet, first earl, and afterwards duke, of Lancaster. 
 Of these, the county of Durham is the only one now remaining in the 
 hands of a subject; for the earldom of Chester Wcis united to the crown 
 by Henry III., and has ever since given a title to the king's eldest son* 
 The county palatine of Lancaster was the property of Henry Bolingbroke, 
 the son of John of Gaunt, at the time when he usurped the crown of 
 Richard II. and assumed the title of Henry IV. But he was too prudent 
 to suffer this to be united to the crown, knowing the insufficiency of his 
 title, lest if lie lost the one he might lose the other also : for he knew that 
 he possessed the duchy of Lancaster by sure and indefeasible title, but that 
 his title to the crown was entirely usurped : for, after the decease of 
 Richard II. the right of the crown was in the heir of Lionel, duke of 
 Clarence, second son of Edward III., whereas John of Gaunt, father to 
 this Henry IV., was but the fourth son. And, therefore, in the first 
 year of his usurpation he procured an act of parliament, ordering that the 
 duchy of Lancaster and all other his hereditary estates, with all their royalties 
 and franchises, should remain to him and his heirs for ever; and should re- 
 main, descend, be administered, and governed, in like manner, as if he never 
 had attained tlie regal dignity. Consequently they descended to his son 
 and grandson, Henry V. and Henry VI., and the former added many new 
 privileges and territories to the duchy. When the house of York asserted 
 their just rights and recovered the throne, this duchy was declared by par- 
 liament to be forfeited to the crown, and at the same time it was incor- 
 porated, and ordained to continue as a county palatine, and also to make 
 it parcel of the duchy : and farther, Edward IV. vested the whole in him- 
 self and his heirs, liings of England for ever, but under a separate guid- 
 ing and government from the other inheritances of the crown. 
 
 The isle of Ely is not a county palatine, though sometimes erroneously 
 called so, but is only a royal franchise : the bishop of Ely having, by a 
 grant of king Henry I., jura regalia within the isle of Ely, whereby he 
 exercises a jurisdiction over all causes, both criminal and civil. 
 
 There are also counties corporate; which are certain cities, some with 
 more, some with less territory annexed to them : there are twelve cities^ Lon- 
 
COURTS OF LAW IN SCOTLAND. 429 
 
 don, Chester, Bristol, Coventry, Canterbury, Exeter, Gloucester, Litchfield, 
 Lincoln, Norwich, Worcester, and York; and five ^o/vw5, Kingston-upon- 
 Hull, Nottingham, Newcastle-upon-Tyne, Pool, and Southampton. Out of 
 special grace and favour, the kings of England have at different times 
 granted the privilege to these cities and towns to be counties of themselves, 
 and not to be comprised in the counties by which they are surrounded, but 
 to be governed by their own sheriffs and other magistrates, so that no offi- 
 cers of the county at large have any power to intermeddle therein.* 
 
 COURTS OF LAW IN SCOTLAND. 
 
 College of Justice. — Though the first institution of the College of 
 Justice is generally attributed to king James V., yet, in all probability, 
 his grand-uncle John, duke of Albany, who was regent of the kingdom 
 during that monarch's minority, was its original projector and founder. 
 Sir George Mackenzie informs us, that the duke of Albany formed the 
 intended court on the model of the parliament of Paris; and accordingly 
 applied to his kinsman. Pope Clement VII., for a bull, empowering him 
 to tax the Scottish bishoprics for the support of his intended institution. 
 This was warmly opposed by the clergy, which occasioned considerable 
 delay; but in the end, the wishes of Albany and the young king, who had 
 assumed the reins of administration, prevailed at Rome, and the Pope 
 issued a bull on the 15th September, 1531, authorizing a contribution to 
 be raised from the Scottish bishoprics and monastic institutions, of ten 
 thousand golden ducats of the chamber (ducatorum auri de camera)^ for 
 the maintenance of the senators. The bull also provided that one half of 
 the senators should be ecclesiastical dignitaries, and the other laymen. 
 
 After providing for the maintenance of the ecclesiastical and lay dig- 
 nitaries of this court, an act of parliament was passed on the 17th May, 
 1532, in the following terms: " Item, anent the second article concern- 
 ing the ordour of justice, because our soverane is maist desyrous to have 
 ane permanent ordour of justice, for the universale wele of all his lieges, 
 and therefoir tends to institute ane college of cunning and wise men, baith 
 of spiritual and temporal estate, for the doing and administracioun of jus- 
 tice in all civil actions, and therfoir thinks to be chosin certane persones 
 maist convenient and quaiifiet therfor, to the nowmer of thirteen persones, 
 half spiritual, half temporal, with ane president : The whilk persones sail 
 be auctorizat in this present parliament to sytt and decyde upon all ac- 
 
 * Blackstone's Commentaries on the laws of England, Professor Christian's edition, with 
 his Notes, 1830— Statutes at large— Law Magazine— Tomlin's and Jacob's Law Dictionaries 
 —Jeremy Bentham's Rationale of Judicial Evidence— Cabinet Lawyer— Dalton's Office 
 of SherifFs— .Dawson on the Origin of Laws— Burns' Ecclesiastical Law. 
 
430 COURTS OF LAW IN SCOTLAND. 
 
 tiouns civile, and nane uthers to have voit with thaim, on to the tyme that 
 the said college may be institute at mare laisare : and thir persouns to be 
 sworn to minister justice equally to all persouns in sic causis as sail happen 
 to com befor them, with sic uthir rewlis and statuts as sail pleise the king's 
 grace to mak and geif to them for ordouring of the samin. The three 
 estatis of this present parliament thinks this artikle well consavit. And 
 therfor the king's grace, with avise and consent of the said three estatis, 
 ordainis the samin to have effect in all points, and now ratifyes and con- 
 firmis the samin ; and has chosen thir persouns underwritten to the eflFect for- 
 said, quhais processes, sentences, and decretis saU have the samin strength, 
 force, and effect as the decretis of the lordis of sessioun had in all tyme 
 bygane : Providing alwayis that my lord chancellor being present in this 
 town or uthir place, he sail have voit and be principale of the said coun- 
 sell, and sic uthir lordis as sail pleise the king's grace to enjoin to thaim 
 of his gret counsell, to have voit siclik to the nomer of three or four." 
 
 Agreeably to this act, the court commenced its sittings on the 27th day 
 of May, 1532, in presence of the king, and all the nobility and great offi- 
 cers of his court. Except in cases of war and pestilence, the court has 
 regularly continued to sit ever since. During the usurpation of Cromwell, 
 the functions of the judges were entirely superseded, and in place of this 
 court, a set of commissioners for the administration of justice to the 
 people of Scotland, was appointed by that military chieftain, and which 
 interruption lasted from the year 1650, to the year 1661, when the resto- 
 ration of the legitimate sovereign authority was naturally followed by the 
 restitution of ancient laws and salutary usages. The judges of the Col- 
 lege of Justice consisted of the lord chancellor, the lord president, four- 
 teen ordinary lords or senators, and an indefinite number of supernumerary 
 judges, called extraordinary lords. We shall now make some general ob- 
 servations regarding some of the more important of these offices, the qua- 
 lifications necessary for filling them, and the honours, distmctions, and 
 remuneration with which their services have been rewarded. 
 
 The Lord Chancellor. — This great officer of state is. supposed to 
 have derived his appropriate title from the Latin verb cancellare, it being 
 his supereminent prerogative to alter or cancel any writ presented to the 
 great seal, containing clauses, objectionable or prejudicial to the common- 
 wealth. In Scotland, this office is of very high antiquity, and so early as 
 the reign of Malcolm II., the chancellor had obtained precedency of all 
 other officers of state. The mere delivery of the great seal constitutes 
 the chancellor in England ; but in Scotland, the office was usually con- 
 ferred by a commission under the great seal, containing a warrant also 
 for appending the privy seal to the gift, the great seal being in the cus- 
 tody of the chancellor himself Latterly, the office was conferred for hfe. 
 Tlie absolute rank of the lord chancellor does not appear to have been 
 
COURTS OF LAW IN SCOTLAND. 431 
 
 fixed, until James VI. directed that Sir John Maitland of Thirlstane, who 
 then held the great seal, should have the first place and rank in the nation, 
 ratione officii. In 1626, Charles I. directed that the archbishop of St 
 Andrews, as primate and metropolitan of the kingdom, should take prece- 
 dence of the lord chancellor in council, and at all public meetings. It 
 does not appear, however, that archbishop Spottiswood, then primate, was 
 ever able to enforce this order during the lifetime of the earl of Kinnoul, 
 who then, and for a few years afterwards, held the great seal. On the 
 death of the earl of Kinnoul, archbishop Spottiswood was appointed lord 
 chancellor of the kingdom, being the first and only instance since the 
 Reformation, of a churchman, holding that high office : he held the office 
 till the beginning of the grand rebellion, when the episcopal order were 
 excommunicated by the famous assembly which m.et at Glasgow in 1638; 
 when, justly fearing personal violence, he fled to England, and died at Lon- 
 don : he was interred in Westminster abbey by order of his affectionate 
 master, and of course, while he held the seals, the point of precedency 
 could not form any point of dispute. After the restoration, the order of pre- 
 cedence of 1626 was renewed in favour of archbishop Sharpe, who being 
 less scrupulous or more successful than his predecessor, assumed the pre- 
 cedence, so much to the chagrin of lord Glencairn, the lord chancellor, 
 that the degradation was supposed to have hastened his death. The 
 twenty- fourth article of union provides, that there should in future be only 
 one great seal for the united kingdom of Great Britain, but that a seal 
 should be kept and used in Scotland, in all things relating to private rights 
 and grants which had usually passed the great seal of Scotland. The 
 last lord chancellor of Scotland was James Ogilvie, earl of Seafield, who, 
 after the Union, was re-appointed lord chancellor of that part of Great 
 Britain commonly called Scotland, an office which seemed incompatible 
 with that of lord Somers, then lord chancellor of Great Britain. His 
 lordship, however, took his seat, as head of the College of Justice, and 
 asserted his right of presiding and signing the interlocutors of the court 
 in virtue of his anomalous dignity, long after he had been appointed lord 
 chief baron of the Scottish court of exchequer, and after the keeping of 
 the seal directed to be used in place of the great seal, had been entrusted 
 to another nobleman. 
 
 Lord President In the papal bull for the institution of the Col- 
 lege of Justice, it is not specified whether the lord president shall be chosen 
 from the spiritual or temporal side of the bench ; but it seems clear from 
 the bull of approbation granted by pope Paul III., that it was intended 
 that that office should be held by a bishop : till the Reformation this rule 
 held, and the four first presidents of the court were the abbot of Canibus- 
 kenneth, who happened to be a bishop, and the bishops of Orkney, Ross, 
 and Brechin. By the act, 1579, however, this rule was abrogated, and 
 
*32 COURTS OF LAW IN SCOTLAND. 
 
 that part of the institution whicli bore that tlie president sliould be elected 
 from the spiritual side and be a prelate, was dispensed with, it being at the 
 same time declared, that the president should be possessed of the same 
 quahfications as the ordinary lords. 
 
 The first president and the other lords were appointed directly by the 
 king and three estates, but by whom his three immediate successors were 
 nominated, does not appear, although I think it most likely to have been 
 by royal authority. In 1567, when Sir James Balfour was elected, ex- 
 press mention is made of the votes of the lords in the abstract of the act of 
 his admission. In 1579, however, an act was passed by which the choice 
 of president was confided to the " hail senators ;" and, accordingly, on the 
 death of the lord president Provand, we find that the lords of the spiritual 
 side, having chosen lord Urquhart, one of the temporal, and those of the 
 temporal side, the parson of Menmure, one of the spiritual lords, the two 
 candidates were removed, and the choice fell upon lord Urquhart. This 
 form of election was kept up so late as 1633, when the lords, after receiv- 
 ing a iMter from Charles I. recommending Sir Robert Spottiswood " as 
 a persone for his suflficience and experience able ^to bear that charge,'* 
 then vacant by the decease of Sir James Skene, appointed Sir Robert 
 Spottiswood, second son of the archbishop of St Andrews, and Sir Alexan- 
 der Seaton of Kilcreuch, to be proposed as candidates ; as in the former 
 case they retired, and the lords elected Sir Robert Spottiswood, who was 
 afterwards basely murdered by the dominant party for his steady attachment 
 to his sovereign. 
 
 By the advice of parliament, Charles I. nominated in November, 1641, 
 fifteen judges ,• but as no notice was taken of the oflSce of president, the 
 lords declared, that for the future, their president should only be elected 
 for one session, and to the commencement of the next, and that the first 
 act of any session should be the changing of the former president and the 
 election of his successor. This plan continued to be the rule till Oliver 
 Cromwell suppressed the court in 1550. On the restoration of Charles II., 
 Sir John Gilmour was appointed constant president of the session, during 
 the chancellor's absence, directly by the king, and since that period the 
 crown has uninterruptedly exercised the right of patronage. 
 
 In point of precedency, it was settled by act of parliament in 1661, that 
 the lord president, as an oflficer of state, should take rank before the lord 
 clerk-register, lord advocate, and treasurer-depute. 
 
 The lord president's salary, as one of the fifteen ordinary senators, was 
 the same as that of his brethren ; but in respect of the dignity of his office, 
 a pension from the crown was added, which gradually increased in amount 
 in proportion as the coin was depreciated, and the manner of living altered. 
 In the time of Sir George Lockhart this addition amounted to £700 per 
 annum. In 1708, the lord president's salary am.ounted to £1000, and 
 
COURTS OF LAW IN SCOTLAND. 433 
 
 was again increased in 1758 to £1300. In 1786 it was augmented to 
 £2000, in 1799 to £3000, and in 1810 it was raised to £4300, at which 
 it has ever since continued. 
 
 For many years the lords presidents possessed a rent-free house, which 
 privilege they acquired in tlie year 1676, when, in consideration of his 
 eminent services to his fellow citizens, the incorporation of the city of 
 Edinburgh became bound to pay the house rent of Sir James Dalrymple 
 of Stair, then president, and that of all his successors in all time coming. 
 Lord President Forbes of Culloden renounced this privilege, and it lias 
 not been resumed by any of his successors. 
 
 Lord Justice Clerk. — Originally, this officer was one of the four- 
 teen ordinary lords of session, and although he had presided as the clerk 
 or deputy of the grand justiciary, who was generally one of the great no- 
 bility, from the first institution of the court, yet he had no pre-eminence. 
 But in the year 1808, when the court of session was separated into two 
 divisions by the act 48 George III., cap. 151, it was declared, that the 
 lord justice clerk should preside in the second division of the court j and, 
 in consequence, he now takes rank immediately next after the lord presi- 
 dent. The salary attached to his office is £4000. All criminal cases are 
 tried by him as the presiding judge, and he travels the circuits in the 
 same manner as the other judges. 
 
 Ordinary Lords By the original constitution of the court, the 
 
 College of Justice consisted of fourteen senators and a president, and 
 this number, through the long lapse of nearly three hundred years, and 
 amid all the changes which have taken place in the constitution and juris- 
 diction of the court, continued unaltered, until it was at length reduced 
 to thirteen (including the president) by act of parliament, 1 1 George IV. 
 and 1 William IV. cap. 69. 
 
 The distinction of spiritual and temporal judges, provided by the bull 
 of institution, was long carefully preserved ; a churchman being always 
 appointed when a vacancy happened on the spiritual side of the bench, 
 and a layman when the deficiency happened in the temporal estate. But 
 at length this distinction was ordered to "be suppressed and forgotten," 
 by act of parliament, 1640, cap. 27, by which the judges were ordained 
 to be wholly temporal. 
 
 The first appointment of the senators of the College of Justice was 
 made by their founder, James V., with the advice of the three estates of 
 parliament ; but their successors, for upwards of one hundred years, were 
 appointed directly by the crown: till in the year 1641, during the grand 
 rebellion, Charles I. was forced to concede that valuable privilege, and to 
 declare that he would nominate the judges with the advice and approba- 
 tion of the estates, if the vacancy should occur during the sitting of par- 
 liament, and during its intervals, by the advice and approbation of the 
 
 3 I 
 
*34. COURTS OF LAW IN SCOTLAND. 
 
 majority of the senators themselves. To parliament, however, was reserv- 
 ed the power of confirming these appointments, or rescinding them alto- 
 gether. At the Restoration, the crown resumed this branch of its prero- 
 gative, which had been wrenched from it during the turbulent period of 
 the civil war in the reign of the first Charles. The estates declaring it to 
 be an inherent privilege of the crown, and an undoubted part of the 
 royal prerogative, to have the sole nomination of the lords of session, as 
 in the former time^ preceding the year 1637. At the Revolution, the 
 whole of the judges were nominated by the crown ; but this exercise of 
 the prerogative occasioned violent debates in parliament, and serious tu- 
 mults out of doors, it being contended, that although the king had the 
 power to nominate a single judge, who must be tried and found qua- 
 lified by the others before he could be admitted, yet his prerogative did 
 not extend to the supplying a total vacancy, when no such test of in- 
 dividual fitness could be applied. 
 
 In the original act of institution, no provision was made to secure the 
 senators against the influence of the crown, by declaring their places per- 
 manent during their life or good behaviour. And for many years, their 
 political conduct does not appear to have afforded any just grounds of 
 dismissal. In 1641, when the triumph of rebellion enabled the chiefs of 
 the Covenanters to dictate to their sovereign, they decreed that the ofli- 
 cers of state and judges should be elected by consent of the estates, and 
 that their commission should be ad vilam aut culpam. This ordinance, 
 (for the decrees of the parliaments during tlie usurpation were not called 
 acts, but ordinances^) was rescinded with many others at the Restoration, 
 and a new commission was granted by Charles II. to the exclusion 
 of several individuals who had been appointed judges for life by the 
 estates. In 1681, a new commission was granted, in which the names of 
 Sir James Dalrymple of Stair, then lord president, and of two other judges, 
 were omitted, and their places supplied by others. At the accession of 
 James VII., a new commission was again issued ; and, having been dis- 
 pleased with the parliamentary conduct of Sir Alexander Seton of Pit- 
 medden, he displaced that judge by a letter to the court, in the following 
 terms : " For reasons known to ourself, we have thought fit to remove 
 Sir Alexander Seton from being one of the senators of the College of 
 Justice. We do duly authorize and require you to cause make the neces- 
 sary intimation thereof to all concerned." Shortly afterwards, two judges 
 (lords Edmonstone and Harcarse) were deprived, in consequence, as was 
 generally supposed, of a vote given on the bench against the king's wishes ; 
 the letter on that occasion also bearing that they had been removed for 
 reasons known to the king, and signifying his royal pleasure that they 
 might no more be admitted. There can be no doubt that the political 
 subserviency which disgraced the court, during the period which intervened 
 
a,.>^ S't'^M 
 
 COURTS OF LAW IN SCOTLAND. 435 
 
 between the Restoration and the Revolution, was chiefly to be attributed 
 to the debasing dependence to which this right of removal on the part of 
 the crown reduced the senators. " The changing of the nature of the 
 judges' gifts ad vitam aid culpam, and giving them commissions ad bene 
 placitum, to dispose them to compliance with arbitrary courses, and turn- 
 ing them out of their offices when they did not comply," was accordingly 
 assigned as one of the reasons for declaring the throne vacant in 
 1689 ; and since that time, the senators of the College of Justice have 
 uniformly held their places during life or good behaviour. 
 
 As formerly noticed, the senators were to be cunning and wise men, 
 but of this qualification the king was to be the sole judge ; and it appears 
 from the earliest admissions of the senators, that simply on the pre- 
 sentation of the king's letter and taking the oath de Jideli admi7iistraiione, 
 the new judge was admitted without farther question. The first restric- 
 tion on the power of presentation, arose in consequence of the change of 
 the national religion. By the act 1567, it was provided, that " nae man- 
 ner of persone nor personis be ressaifit in ony tyme heerefter to beer pub- 
 lict office removabill of judgement, within this realme, but sic as professes 
 thepuretie of religioun and doctrine now presentlie establischeit." In 
 1579, on a complaint that "the king elects and chooses young men 
 without gravity, knowledge, or experience, not having sufficient living 
 of their own, and that some of them by themselves, their wives, or servants, 
 takes buddes, bribes, goods, and gear, so that justice in effect is bought and 
 sold," it was enacted, that the king should nominate as a senator in future 
 " a man that fears God, of good literature, understanding of the laws, 
 of good fame, having sufficient living of his own, and who can make good 
 expedition and despatch of matters concerning the laws of the realm.'' 
 Those nominated were to be tried by the other judges, and if found dis- 
 qualified might be rejected, they continuing to present, until an individual 
 sufficiently qualified appeared. The nomination of John Lindsay, parson 
 of Menmure, was made in terms of this statute, and he was accordingly 
 tried before being admitted. In 1384, an act was passed prohibiting all 
 employed in the ministry from being judges ; but an exception was made 
 in favour of Robert Pont, presbyterian minister of the West Kirk, who, 
 by compromise with the General Assembly, was allowed to continue as 
 one of the judges. 
 
 On the first August, 1590, when Archibald Douglas, younger of Whit- 
 tingham, was admitted a senator, the court directed trial to be taken of his 
 qualifications in the following manner: " The said Archibald, three days 
 togidder, sail pass and ische in company with the ordinar lordis, reporters 
 of interlocutors, in the utter tolbooth ; and the said Archibald, all the 
 samyn three days, sail mak report, in presens of the hail lordis of all 
 allegeances, of all answers, duplies, &c., had and proponit be the parties 
 
AS« COURTS OF LAW IN SCOTLAND. 
 
 and procuratouris in the utter house, and all the space, the said Archibald 
 to gif his opinion, in the first place, upon ilk questione, and interlocutor ; 
 and thir three days being expirit, ordanis the said Archibald to sit in 
 the inner house, and all the space to be heard to reason on ilk actioun 
 and cause whilk sail happen to be callit during the time ; and the said sax 
 dayes being bypast and all finissit, the lordis immediately thereafter sail pas 
 to voting and consultation among themselves, and give answer to the 
 king's magesty within written." 
 
 In 1592, it was enacted, that " nane sail be ressavit to ane place of ane 
 senator in the College of Justice, except he be sufficiently tryit and 
 knawin be his hieness and the haill lordis of session : that the said per- 
 soun sail have in yearly rent, properlie belonging to himself, the soume of 
 one thousan merkes usual monie of this realme, or els twentie chaders of 
 victuall : and, that his experience, qualitie, and conversation may be the 
 better tryit, that he be of the age of twentie-five years at tlie least com- 
 plete in all time coming." 
 
 Two years afterwards, an act of sederunt was passed by king James 
 VI., with consent of the court, having for its object the prevention of 
 two crying evils connected with tlie presentation of the judges of the su- 
 preme court. The first of these was an abuse which had gradually crept 
 in, of senators anxious to retire from the toils of office resigning their 
 places into the king's hand, in favour of a person named in the deed of 
 demission. This transfer of tlie judicial office was afterwards ratified by 
 the king, through the influence of some favourite at court ; and the sena- 
 tors, overawed by the royal mandate, never ventured to dispute the ad- 
 mission of an individual so presented. It was now attempted to remedy 
 this abuse by the act 26th June, 1593, by which it was declared, that in 
 future, no resignation in favor em should be accepted of, nor any presenta- 
 tion proceeding thereon be admitted by the court ; and tliat all admis- 
 sions of this nature which might occur hereafter should be null and 
 void. 
 
 At the same time the crown consented to some additional restrictions 
 on its presentations. The vacancy was not to be filled up until twenty 
 days after it had occurred, in order to afford sufficient time for a judicious 
 selection, and to disappoint the importunate solicitations of rapacious cour- 
 tiers : and secondly, the king was to present at least three persons to the 
 court, out of whom they were to select the individual who was, in their 
 estimation, best qualified to fill the vacant situation. This act appears to 
 have come first into operation in filling up the vacancy occasioned by 
 the death of David Macgill, of Cranstoun-riddle, lord advocate ; and 
 the manner in which the right of election was managed, is not a little sin- 
 gular and interesting. King James himself came to the court, and in his 
 usual good-natured manner hai'angued the judges on the affection which 
 
COURTS OF LAW IN SCOTLAND. 437 
 
 he had always felt towards the College of Justice, and the many honours 
 and dignities which he had conferred upon the senators, more particularly 
 the lately conferred privilege of electing their fellow judges. He then 
 presented Mr Peter RoUock, bishop of Dunkeld ; David Macgill, eldest 
 son of the deceased, and John Preston of Fenton ; all sufficiently quali- 
 fied for the vacant office. Further, in order to ensure the election of the 
 best qualified individual, the senators were sworn, that, according to the 
 best of their knowledge and conscience, they should choose the most 
 worthy person to fill the vacant office. On this occasion, the vote by bal- 
 lot was adopted. The record expressly bears " that the said senatouris 
 being ilk ane of them solemnly sworne to the effect as said is, conjectis 
 in piletmi nomhiibiis, electit and chosit the said Maister John Preston as 
 maist qualifiet to occupie y® rowme in sessioun." 
 
 In 1605, James VI. further limited the number of persons from among 
 whom the judges of the supreme court were to be elected. Those now 
 declared qualified to be received as senators were, first, six advocates, 
 who were to be selected by the court from the ancient, wise and learned 
 advocates, " wha hes given best proof of their wisdome, learning, honesty, 
 and good beliaviour in the exercise of their procuration," under the title 
 of Elected, and which number the court were required to keep up : se- 
 condly, the principal clerks of session, having served two years in office : 
 thirdly, peers of parliament, or their sons : and lastly, knights possessing 
 a free revenue of £2000 Scots, yearly. The intrant-judges were further 
 to swear, that they had neither directly nor indirectly procured their pre- 
 sentations, nor the resignations of their predecessors, by any sinister means, 
 " for gold, or silver, or any other good deed and promise thereof :" and 
 instant deprivation and the punishment of perjury were denounced against 
 the guilty. 
 
 At the same time the judges were directed to prescribe a certain form of 
 trial of " the sufficiency and literature in learning and knowledge" of all 
 those aspiring to the rank of senators. They accordingly determined 
 that in the first place, the chancellor, or in his absence, the president, 
 should assign to the candidate one or more texts of the civil or canon law, 
 on which he should discourse in Latin before their lordships in the inner 
 house on the third day after, and for such space as they should enjoin. 
 Secondly, the chancellor or president was directed to call, in presence of 
 the candidate, any of the controverted actions then in dependence, which 
 was to be fully pleaded before him. After the removal of parties, the 
 candidate was then to resume the state of the process, narrating, in 
 their due order, the various pleas, objections, and replies which he had 
 just heard debated. He was then to deliver his own opinion on these va- 
 rious points, and on the action generally, it being incumbent on him, in 
 doing so, to declare the reasons of his judgment. The court were then to 
 
438 COURTS OF LAW IN SCOTLAND. 
 
 take his presentation into consideration, and admit or reject the candidate 
 according as he had sustained the prescribed trial. 
 
 On the 17th February, 1649, the estates drew up an ordinance, that no 
 person maligjiant and disaflfected to the work of Reformation and the Co- 
 venants, that is, those who stood for episcopacy and the king, or against 
 whom there existed any just grounds of suspicion of such disajBPection, 
 nor any person given to drunkenness, swearing, uncleanness, or any 
 other scandalous offence, should thenceforward be chosen as a judge. 
 
 At the Restoration it was declared, that the admission of senators should 
 in future be in conformity with the laws and acts of parliament before 1640. 
 These were, however, frequently disregarded ; and Sir George Mackenzie 
 says, seats on the bench were given solely with regard to the political 
 influence of those who obtained them. The judges then admitted were 
 not subjected to any trial, but were required to take the oaths of alle- 
 giance and dejideii administralione, and to subscribe an acknowledgment 
 of the royal prerogative, which had been agreed to by the estates of parlia- 
 ment. On the admission of Sir David Nevoy of Reidie, on the 26 th June, 
 1661, the court, while they admitted Sir David without trial or exa- 
 mination, on the ground that he had been nominated by the king in place 
 of the viscount Oxford, who had been named in the general appointment, 
 but who had never accepted, resolved, that in future, persons appointed 
 as judges should be tried and examined by the lords, and give proof of 
 their " literature and knowledge of the laws and practick of this 
 kingdom, conform to the ancient customes and acts of parliament maid 
 thereaneiit." 
 
 In June, 1662, when Sir James Dundas of Amiston was appointed, 
 instead of subjecting the candidate to the trial anciently prescribed, the 
 court simply deputed two of their number to confer with Sir James, and 
 to examine him privately " anent his literature and knowledge of the laws 
 and practick of this kingdom, conforme to act of parliament." On the 
 following day the committee returned a favourable verdict, and he was 
 admitted accordingly. 
 
 This mode of private examination was not calculated to satisfy the pub- 
 lic as to the legal qualifications of the men selected to be the supreme 
 judges of the land, and it afterwards degenerated into a mere form. 
 The candidate retired with two judges, who, after a few minutes' conver- 
 sation, returned and reported him fully qualified for the vacant oflSce. 
 The temptation which this laxity offered to ministerial corruption to fill 
 the bench with their own political friends, was abused by the unprincipled 
 Lauderdale, who in two years appointed four of his own creatures, who 
 had not so much as studied law. The complaints of the people, and 
 the remonstrances of the duke of Hamilton and his party, who even intro- 
 duced a bill on the subject into the committee of Articles, at length 
 
COURTS OF LAW IN SCOTLAND. 439 
 
 procured redress. The king, with laudable attention to the purity of the 
 bench, addressed a letter to the court, requiring them, with all possible 
 speed, to present to his majesty the mode of trial they should think 
 best fitted for proving the qualifications and sufficiency of those nominated. 
 A committee was immediately appointed, and the result, which we owe 
 to the patriotism of Charles II., was the act of sederunt of thirty-first 
 July, 1674, and which still continues to regulate the admission of the 
 College of Justice. By this act it is provided, that when any new lords of 
 session shall be presented by his majesty for trial of their qualifications, 
 they shall sit three days beside the ordinary in the outer house, and shall 
 have inspection of such processes as are carried to interlocutor, and shall 
 make report of the points taken to interlocutor, in presence of the whole 
 lords. As also for completing their trial, they shall sit one day in the 
 inner house, and after any dispute is brought to a period, and the lords 
 are to advise the same in order to the pronouncing their interlocutor, 
 they shall resume the dispute, and first give their opinion thereanent in 
 presence of the whole lords. 
 
 It was enacted in the nineteenth article of the treaty of union, " that 
 hereafter none shall be named ordinary lords of session, but such who have 
 served in the College of Justice as advocates or principal clerks of session, 
 for the space of five years, with this provision, that no writers to the 
 signet be capable to be admitted a lord of the session, unless he undergo 
 a private and public trial on the civil law before the Faculty of Advocates, 
 and be found by them qualified for the same office, two years before 
 he be named a lord of session, yet so as the qualifications made, or to 
 be made for capacitating persons to be named ordinary lords of session, 
 may be altered by the Parliament of Great Britain." Neither of the lat- 
 ter clauses of this article have ever been acted upon. No alterations in 
 the qualifications of senators has been made by parliament, nor since the 
 Union has any writer to the signet aspired to the bench. 
 
 In 1721, the court exercised its discretionary power in rejecting the 
 nominee of the crown ; this appears to have been the first instance in 
 which they exhibited such a symptom of independence, and it is cer- 
 tainly a solitary one. In exercising this delicate privilege in the case of 
 Mr Patrick Haldane, the court objected on the ground that he was not 
 qualified in terms of the act of Union, which requires five years' practice 
 as an advocate in the College of Justice ; on which consideration the 
 court held themselves entitled to decide on this objection, and accordingly 
 refused to put Mr Haldane on the customary trial of his legal qualifica- 
 tions. Mr Haldane immediately appealed to the house of lords, who, on 
 an ex parte statement, reversed the interlocutor of the court, and ordered 
 their lordships to proceed with his trial. On motion for the application 
 of this judgment, a new objection was taken to Mr Haldane's moral char- 
 
4t4fO COURTS OF LAW IN SCOTLAND. 
 
 acter, and a proof being allowed, the court was nearly divided as to its 
 effect. Seven ordinary lords voted for his rejection, and lord president 
 Dalrymple intimated his adhesion to their opinion. Six ordinary lords 
 voted for Mr Haldane's being admitted to trial, and as they were joined 
 by two extraordinary lords, they would thus have constituted a majority 
 of one. The right of the extraordinary lords to vote in a question of this 
 nature being questioned, and there bemg evidently no manner of settling 
 the dispute, the whole affair was referred to the king. Of this reference 
 no notice appears to have been taken, but Mr Haldane's appointment was 
 withdrawn, and an act of parliament, 10 Geo. I. c. 19, was passed, abo- 
 lishing the office of extraordinary lords, and in the matter of admission 
 of judges, the powers of the court were limited to the mere form of certi- 
 fying to the crown any objection which they might have to the candidate's 
 qualifications, in order that the royal pleasure might be known thereupon ; 
 and if after this the king should declare his pleasure that the person so 
 objected to should be admitted, the court were directed " forthwith to 
 admit and receive him accordingly." 
 
 It has been already mentioned, that some months previous to the insti- 
 tution of the College of Justice, ten thousand golden ducats were levied 
 from the ecclesiastical estate by the bull of pope Clement VII. for the sup- 
 port of the senators. From the taxed roll of the contributions still pre- 
 served in the books of sederunt, the sum levied appears to have amounted 
 to £1423, 18*. Scots ; but was so reluctantly paid, that the yearly salary 
 of the judges in 1549 amounted only to £40 Scots, or £3, 6s. Sd. ster- 
 ling. In 1563, they received from queen Mary £1600 Scots, an- 
 nually, out of the quot silver, a revenue raised by the crown arising from 
 the fees for the confirmations of wills, whicli had formerly been enjoyed by 
 the bishops. In 1610, when king James restored the episcopal order to 
 their rights and privileges, the quot silver reverted to them for the origi- 
 nal purpose, and in place of the quot silver, James conferred on the 
 judges the sum of £10,000 Scots, paid out of the customs. In 1633, 
 the revenue of the College of Justice was still farther increased by a tax 
 of ten shillings Scots, then imposed upon every pound land of old extent 
 yearly for four years, the produce of which the senators were directed to 
 lay out on heritable or other security, and to divide the interest among 
 themselves in the same manner as the sums they already possessed. After 
 the Restoration, parliament voted the sum of £l 2,000, which, with the 
 yearly sum of £10,000 Scots, paid by the king out of the exchequer, 
 afforded their lordships a salary of £200, sterling, each. 
 
 Shortly after the Union, queen Anne raised the judges' salary to £500. 
 In 1758, their incontes were augmented to £700, and in 1786, to £l000. 
 In 1799, they received a further augmentation of £280, and in 1810, 
 their lordships' salaries were placed on their present footing, viz. to the 
 
COURTS OF LAW IN SCOTLAND. 441 
 
 commissioners of justiciary who travel the circuits, £2600, and to the 
 other judges £2000, per annum. 
 
 Extraordinary Lords — In the original act of institution it was 
 declared, " that sic uther lords as sail pleise the kingis grace to enjoine 
 to thame of his grit counsell, to have vote siclik to the nowmer of thre 
 or foure." This power of nominating additional, or, as they were termed, 
 extraordinary lords, was speedily abused by the crown ; seven, and some- 
 times more noblemen being often added to the ordinary judges, and fre- 
 quently appointed for the trial of particular causes. In 1555, the evil 
 had become so great as to excite the complaints of the senators them- 
 selves, who entreated Mary of Lorraine, then regent, to reduce the super- 
 numerary lords to the original number of three or four, and to order their 
 constant attendance at the advising of all cases, and not merely at those of 
 themselves or their friends. The number was accordingly gradually reduced, 
 and at length king James VI., by a letter to the court dated 28th March, 
 1017, promised that there should in future be only four ; but the other 
 evil complained of was never remedied, the extraordinary lords attending 
 the court only at such times as they themselves thought proper. There 
 was no check on the choice of the crown in their nomination, as the qua- 
 lifications required by statute of the ordinary senators, were not held to 
 extend to them. Even when bestowed, the office was in the highest de- 
 gree dependent on the crown, as the extraordinary lords were removable 
 by the mere will of the sovereign, with or without cause assigned. It 
 should not therefore excite astonishment, that as the science of law be- 
 came more and more difficult, the incongruity of allowing individuals, 
 altogether ignorant of its intricacies and its " glorious uncertainties," to 
 decide such important causes as came before the supreme court, should 
 have awakened the attention of lawyers ; more especially as the presence 
 of the extraordinary lords, generally, proceeded either from political sub- 
 serviency or personal motives. This part of the constitution of the 
 court of session at length yielded to the enlightened influence of the 
 times, and the voice of public opinion. Accordingly, the statute of George I. 
 c. 19, enacted that any vacancy which should thereafter occur among the 
 extraordinary lords was not to be filled up. This useless and pernicious 
 office expired with John Hay, marquis of Tweeddale, who died on the 
 9th December, 1762. The extraordinary lords derived no emolument 
 from their appointments j their advantages consisted in the opportunity 
 afforded them of obliging themselves and their friends at the expense of 
 justice and judgment, when these stood in their way.* 
 
 Court op Session Of the many alterations which, through suc- 
 cessive revolutions, must of course have taken place in the public ad- 
 ministration of justice in Scotland, none, perhaps, has been so radical or 
 
 * Halgand Brunton's Historical Account of the Senators of the College of Justice. 
 
 3 K 
 
442 COURTS OF LAW IN SCOTLAND. 
 
 so permanent in its influence as that which was occasioned by tfie introduc- 
 tion of the feudal system. 
 
 The sovereign was, and still continues to be, the great source and 
 fountain of all justice. Under him, when the feudal system was in full 
 operation, the barons who followed him to the field were vested with 
 subordinate jurisdictions, assigned them by their sovereign, as the reward 
 of their military services. The magistrates of towns possessed a similar 
 territorial jurisdiction within their respective burghs, wliich, in course 
 of time, became gradually more distinct and separate from that enjoyed 
 by the baronial courts. 
 
 Besides these, early acts of parliament mention frequently other juris- 
 dictions ; and, as far back as our authorities reach, we find the king's 
 chamberlain, the justiciar or justice-general, and sheriffs ranked among 
 the ordinary judges of the land. The progressive steps by which a cause 
 arrived at the court of last resort, were these : if it originated in the burgh 
 courts, an appeal lay to the chamberlain-eyre, and from that to the 
 court of four burrows. If again it originated in the burgh courts, an 
 appeal lay first to the sheriff, then to the justiciar, and lastly to the par- 
 liament. The reason why an appeal was competent to the parliament in 
 the latter case, and not in the former, is ingeniously given. " The bishops, 
 barons, and freeholders composed the high court of parliament ; originally 
 the burrows had no place in that assembly." Tlie miria quatuor hur- 
 gorum was an earlier institution than the representation of burghs in 
 parliament. Now trial by peers was a fundamental principle in the law 
 of Scotland, as well as of England j therefore it was natural to appeal to 
 parliament in causes concerning the barons, but not the burghs; for they 
 had no peers there. In the court of four burghs were their peers; and, 
 therefore, it was their court of last resort.* 
 
 The ancient supreme judicatories were " the court of four burrows," 
 and the high court of parliament ; the former judging in those questions 
 which had originated in the burgh courts, the latter again in those which 
 had been moved before any other of the ordinary judges. These two 
 supreme judicatories would seem to have acted not only as courts of re- 
 view, but sometimes as courts of the first instance. More lately, recourse 
 from the ordinary judges could be had only to the king in council, who 
 exercised a supreme and cumulative original jurisdiction in cases com- 
 petent before the other courts. This system was found to be extremely 
 inconvenient ; it not only imposed an insupportable burden on the king, 
 but was also insufficient for the public service. To remedy this, an act 
 was passed in 1425, which ordained that the lord chancellor, with certain 
 discreet persons of the three estates to be nominated by the king, shall 
 
 * Arnol's History of Edinburgh, p. 467. 
 
COURTS OF LAW IN SCOTLAND. 443 
 
 thenceforward sit three times in the year, where the king chose to ap- 
 point, to know, conclude, and finally determine all and sundry complaints, 
 causes, and quarrels that may be determined before the king and his 
 council. By a subsequent statute of James II. the jurisdiction of this 
 court is explained, and in some points considerably enlarged. It would, 
 however, appear from this last act that its jurisdiction was never privative, 
 but merely cumulative with that enjoyed with the judges ordinary, for it 
 expressly leaves the parties complaining at full freedom to follow their 
 actions before the said lords or their ordinary judge. 
 
 Thus constituted, the court of session does not seem to have answered 
 the expectations of its framers. It laboured under many inconveniences ; 
 its time and place of meeting depended on the will of the sovereign ; in 
 this respect it was little better than the court of the king and council, 
 whose inconveniences it was intended to remedy. But this was not the 
 worst ; the judges of which it was composed were so exceedingly fluc- 
 tuating, changing by rotation every forty days, that regularity or con- 
 sistency of decision was impossible. The evil was still farther increased 
 by the rotation not coming round to them again, " perad venture for seven 
 years." They were, besides, to officiate purely " of their own benevolence,'* 
 and at " their own costs ;" and it cannot surprise any one that, under such 
 circumstances, these judges were exceedingly negligent. 
 
 A court like this was not destined to be permanent. Accordingly in a 
 few years its jurisdiction, though not expressly abolished, was entirely 
 altered. The act of 1469, ordained that a party complaining in any part 
 of the realm should first complain to his judge ordinary of temporal 
 lands, as justices, sheriffs, stewards, baillies or barons, provost or baillies of 
 burghs, at whose hands, if he received justice, he was to remain content ; 
 but if the judge ordinary " failzies him," and will not administer justice, 
 then he might appeal to the king and his council. Not the slightest men- 
 tion of the court of session is once made throughout the whole of this act, 
 neither as a court of first instance nor as a court of review ; but the 
 king's own jurisdiction is expressly reserved in these words : "it shall be 
 lawful to the king's highness to take decision of any matter that comes be- 
 fore him at his pleasure, (empleasance,) like as it was wont to be of 
 before." This exception gives to the omission of the court of session a 
 more peremptory and decisive character j and seems again, by its extinc- 
 tion, to have thrown the burden of judicial business on the king and 
 council. For their own relief they enacted in the parliament of 1487, 
 *-'that all civil actions, questions, and pleas whatsoever, should be deter- 
 mined and decided before their judge ordinary, so that no actions, &c., 
 should come before the king and council, except such as pertained espe- 
 cially to the sovereign, actions and complaints made by kirkmen, widows, 
 orphans, pupils, and strangers of other realms, and complaints on officei-s 
 
*4»4 COURTS OF LAW Ix\ SCOTLAND. 
 
 for neglect of their several duties." This act was only temporary till the 
 meeting of the next parliament ; and king James III. dying soon after, it 
 was not productive of any good. The king and council were still bur- 
 dened with the load of judicial business ; and to relieve them an act was 
 passed in the beginning of the sixth parliament of James IV., by which a 
 new court was constituted, styled the " Daillie Council." 
 
 This court was to be chosen by the king, and to sit in Edinburgh, or 
 wherever the king should reside, and was to liave the same power as the 
 lords of session. 
 
 The constitution of this court was defective ; its jurisdiction was too 
 confined. Lord Stair considers that it was merely a court of first instance, 
 having no authority as a court of review, and the great weight of appeals 
 fell on the justiciaries, or the chamberlain and his court of four burrows. 
 The '' Daillie Council" does not appear to have been more successful or 
 of longer duration than its predecessor, nor during the period of its brief 
 existence does it appear to have been productive of any very beneficial 
 eflfects to the country. 
 
 Two attempts to create such a court as might be calculated to advance 
 the ready administration of justice had now failed ; but the matter was of 
 too great importance to be dropped solely on that account. The diflSculties 
 of the undertaking only encouraged each successive king to attempt a 
 task in which his predecessor had been foiled, and complete success was 
 reserved for the efforts of a sovereign who was then under age. 
 
 We have, in the beginning of this article, given an historical account of the 
 court of session, as originally instituted by king James V., on the model, as 
 we are informed by the celebrated Sir George Mackenzie, of the parliament 
 of Paris, as a supreme court under the dignified and imposing title of 
 the College of Justice. We, therefore, refer to it for such par- 
 ticulars as we do not think necessary to repeat in this place. This court 
 did not labour under the disadvantages which destroyed the utility of tiie 
 institutions just described. The number of its judges were expressly 
 fixed. It was to consist of " fourteen persons, one half spiritual" — that is, 
 of bisliops ; " one half temporal, with a president — cunning and wise men, 
 most convenient and qualified for the administration of justice." Of these, 
 any ten, with the president, were a quorum ; but besides these judges, the 
 sovereign reserved to himself the right of appointing extraordinary lords, 
 as already described. Its jurisdiction was more extensive than either of 
 the former had been ; its judges were authorized " to sit and decide upon 
 all actions civil, and none others to have vote with them." 
 
 The place and periods of its meetings were also determined, and full 
 power granted to its members " to advise, counsel, and conclude upon such 
 rules, statutes, and ordinances as shall be thought by them expedient to 
 be kept and observed in their manner and order of proceeding at all times." 
 
COURTS OF LAW IN SCOTLAND. 445 
 
 Considering the character of the times, the constitution of this court 
 must be allowed to have been wonderfully perfect. It continued long to 
 answer every purpose for which it was intended, under the regulations 
 from time to time established by the judges under the title of acts of sederunt. 
 Nevertheless it was not entirely free from defect. The sovereign's privi- 
 lege of nominating extraordinary judges, generally ignorant both of the 
 law and its fundamental principles, and also of judicial proceedings, could 
 not but lead to abuse. It presented too strong a temptation not to be per- 
 verted to purposes purely political ; and the effects of this perversion 
 were more than once severely felt, and as severely remonstrated against, 
 before the crown would yield up a source of influence so extremely power- 
 ful. It was at length, however, enacted, " that whenever the places of 
 the then present four extraordinary lords should become vacant, no 
 nomination should be made to supply the vacancy ;" since which enact- 
 ment, the court of session has consisted only of the fourteen ordinary lords 
 and their president. 
 
 Besides these, several other alterations on the original constitution of the 
 court were, in the course of time, discovered to be necessary. The change 
 in the religious sentiments of the nation was inimical to the original plan 
 of the court, when one half were to be bishops or other spiritual persons. 
 In order, therefore, to remove churchmen entirely from the court, the fol- 
 lowing act passed in the parliament of 1584, in the reign of James I. : 
 " The king's majesty, and his three estates assembled in this present par- 
 liament, earnestly desirous that all his loving and gude subjects shall be 
 faithfully instructed in the doctrine of their salvation, and that the minis- 
 ters of God's word and sacraments may the better attend upon their own 
 charges and vocation, therefore statutes and ordains that none of the said 
 ministers shall in any ways accept, use, or administer any place of judica- 
 tion in either civil or criminal causes, neither to be of the college of jus- 
 tice, commissioners, advocates, court-clerks, or notaries in any matters, 
 (the making of testaments only excepted,) under the pain of deprivation 
 from their benefices, livings, and functions." During Cromwell's usurpa- 
 tion this exclusion was extended to all clergymen generally ; but the act only 
 contemplated the prelates. Although this act, as well as all the other 
 acts of the rebellious parliaments, was rescinded, yet it has been acted upon 
 in spirit ever since, and no clergyman has since the Restoration been a 
 member of the college of justice. 
 
 The court still meets in the original session house, and which was early 
 divided into the outer and inner house. With the exception of the lord 
 president, the ordinary lords sat alternately in the outer house, each for 
 the space of a week, hearing and determining in the first instance such 
 causes as were brought before the court. In their character of weekly 
 ordinaries, it was impossible for the judges to bring many of the causes 
 
^^^ COURTS OF LAW IN SCOTLAND. 
 
 thus brought before them to a conclusion, till long after their week was 
 expired. The court framed many regulations, to afford them opportuni- 
 ties of bringing up their arrears, by assigning them certain hours for 
 sitting at the side bars in the outer house. 
 
 While the ordinary for the week was occupied in the outer house, the 
 lord president, with the other ordinary lords, were equally occupied in the 
 inner house. There they occasionally determined certain special causes 
 in the first instance, which, on account of their extreme importance, or 
 the necessity of despatch, were intrusted to the decision of the whole 
 court. But they were chiefly occupied in reviewing the judgments of the 
 weekly ordinaries, which either plaintiff or defendant were entitled to 
 bring by a reclaiming petition, if dissatisfied, before the whole judges. 
 This privilege of petitioning was, however, limited by the rules of the 
 court to a certain definite period, beyond which the decrees of the weekly 
 ordinaries became final, and by a sort of fiction of law were regarded as 
 decrees pronounced by the statutory quorum of the judges in the inner 
 house. Lord Bankton observes, that " this court is justly admired for 
 its contrivance, in order to despatch of business, and at the same time with 
 great solemnity and deliberation. It is, in effect, fourteen superior co- 
 ordinate courts all in one ; because the sentence of each of the ordinaries 
 is, after extract, equal to that of the whole. And the whole lords, in 
 prcesentia^ may be regarded as a court of appeal, where the judgments of 
 the respective ordinaries may be summarily, before extract, reviewed, and, 
 if wrong, reversed." 
 
 Besides these weekly ordinaries, there were certain others appointed to 
 attend in the outer house, both by express statute and by act of sederunt. 
 These were the ordinaries upon witnesses, the ordinaries upon concluded 
 causes, and the ordinaries on the bills. In the course of practice, the duty 
 of the latter was soon united with that of the weekly ordinary in the outer 
 house. Their different duties and powers, and the order of rotation in 
 which they should succeed each other, were repeatedly the subject of re- 
 gulation by acts of sederunt ; but the whole system has lately undergone 
 a radical change. Under the system just described, modified as it was by 
 different acts of the legislature, as well as by various acts of sederunt 
 passed by the judges themselves, the administration of justice in Scotland 
 was carried on, for nearly three centuries, with very considerable success. 
 The decisions of the judges, regularly collected by the reporters, gave the 
 laws a more consistent and unvarying interpretation, as well as diffused 
 their knowledge more widely over all classes of the people. These cer- 
 tainly were inestimable benefits. But commerce growing more extended, 
 the laws became, of course, more multifarious and involved ; litigation in- 
 creased ; and the college of justice began to lose its reputation for celerity 
 of decision. 
 
COURTS OF LAW IN SCOTLAND. 447 
 
 The constitution of the court was not calculated to carry through a 
 multiplicity of business with despatch. This was rendered impracticable 
 by a variety of circumstances. The lord ordinary discussed all causes 
 put in the roll, during the week that he sat in judgment. These causes 
 were seldom determined upon a single hearing, and the judge had a power 
 of altering his own sentence as often as he inclined. Each of the lords 
 came once or oftener in the week, to the outer house, to hear pleadings, 
 or give judgment upon those causes which came first before him when 
 lie sat as lord ordinary ; and, upon which, niany written cases, or repre- 
 sentations, as they were called, might have been laid before him. If 
 the parties did not acquiesce in the lord ordinary's judgment, which, in 
 matters of any importance was always the case, application was made for 
 altering the sentence, by a printed petition presented before the whole of 
 the lords. Besides petitions, various printed papers were produced, under 
 the titles of state, case, proof, information, answers, replies, and duplies j 
 yet, notwithstanding these voluminous papers, the lords often heard 
 pleadings in the same cause, and these commonly very prolix, often taking 
 up the court a whole week, sometimes three weeks. Considering the 
 copiousness of the printed papers which were laid before the judges, to 
 have both these and pleadings in the same cause, was apprehended to be, 
 in general, superfluous, and to be a great waste of time.* It has been 
 calculated that, throughout the whole year, each ordinary could not allot 
 more than sixty-four hours in court to the duties of his department in the 
 outer house ; and as all the causes which came before the court of session 
 having, with a few immaterial exceptions, to pass, in the first instance, 
 through the hands of the lords ordinary, this short space of time was far 
 from being adequate. Besides, each individual judge, to follow the same 
 calculation, having in the course of the year to read and consider not less 
 than thirty thousand quarto pages of letter-press for the duties of the 
 inner house, and nearly one half of that number for those of the outer 
 house, it was totally impossible for him to do justice to the causes before 
 him, and, at the same time, to surmount so insuperable a barrier in the 
 way of despatch. 
 
 But there was another evil of equal magnitude, even after the cause had 
 at last found its way into the inner house, arising from the number of 
 judges on the bench. The difference of opinion, which could not fail to 
 arise from the different views of the case that suggested themselves to the 
 minds of so many judges, often gave rise to discussions, the result of 
 which retarded the progress of the cause. Few pleas could be brought 
 before the court without plausibility enough to secure the vote of one or 
 more of the judges; which fanned the flame of litigation in the breasts of 
 
 * A mot's Hisloiy of Edinburgh, p. 478. 
 
448 COURTS OF LAW IN SCOTLAND. 
 
 the parties. Among so many discordant decisions, too, the grounds of the 
 judgment could not always be traced j and it was often difficult to decide 
 what had actually been the law of the case. As the court was one both of 
 law and equity, it necessarily happened, that it decided sometimes on the 
 principles of the one, sometimes of the other; and as, when no invariable 
 rule is observed, different men must frequently conceive different notions 
 of the importance of a point of form, it happened that the appointed forms 
 of proceedings before the court, were sometimes adhered to, and sometimes 
 not ; so that in a case where there was any discrepancy between law, 
 equity, and form, it was impossible to pronounce beforehand, with a high 
 degree of probability, upon the decision of the court. There were still 
 other circumstances which conspired to increase their latitude in giving 
 judgment, and to render the issue of trials before them more uncertain. 
 By the Scots law, acts of parliament may go into desuetude; so that, in 
 bringing an action upon a statute, it comes sometimes to be debated, 
 "whether the act libelled be in force or not. Nay, it came frequently to 
 be a matter of question, whether certain British statutes extended to 
 Scotland. If there were two or more points in a cause, sometimes the 
 court decided the controversy by one general vote upon the matter at 
 issue. At others, they would have as many votes upon the cause, as there 
 were points and branches in it ; so that a person might convince ei^ht 
 Jicdffes out of eleven^ that his antagonist's claim was ill founded, and yet 
 that claim be sustained.* This uncertainty was a pregnant source of 
 delay, which was the less easy to be corrected, as it originated with the 
 judges themselves. The inevitable result was the daily increase of arrears; 
 and each returning session only loaded the judges' tables with a greater 
 mass of papers. 
 
 Such evils and inconveniences had long called for redress, and different 
 plans had been proposed ineffectually ; but at last, in the year 1806, 
 during Mr Fox's administration, the legislature turned their most serious 
 attention to the subject, and lord Grenville submitted a series of resolu- 
 tions to the house of lords, as an avowed preliminary to bringing in a bill 
 for remodelling the courts of justice in Scotland. These resolutions were 
 circulated among the public with the most solicitous care ; ministers were 
 anxious to collect the sense of the country, and, therefore, did not pre- 
 cipitate the measure. Their plan was not entirely free from objection; 
 but in the midst of their deliberations ministers found it expedient to re- 
 sign. Their successors showed no inclination to oppose this measure, and 
 as the house of lords had pledged themselves to take the subject into their 
 consideration, the new ministers, in the first session after their accession 
 to office, passed an act, differing indeed in many essentials from the resolu- 
 
 * Arnot's History of Edinburgh, p, 477. 
 
COURTS OF LAW IN SCOTLAND. 449 
 
 tions originally submitted, but at the same time agreeing with them in 
 others of almost equal importance. 
 
 One of the grand leading features of the original plan was the division 
 of the court into such number of separate chambers as might be found 
 convenient ; each to act as a distinct court. Besides these, a new court 
 of review was to have been erected, from which alone appeals should be 
 competent to the house of peers; but the statute just mentioned, while it 
 adopts the principle of splitting the court, rejects the suggestion of a new 
 court of review. In this particular, the departure from the original re- 
 solutions of the house of lords is perhaps an improvement. There were 
 already too many stages through which a cause might be carried by suc- 
 cessive appeals. To multiply these would have encouraged rather than 
 repressed the spirit of litigation, and would have added to that very delay 
 which it was so much the object of reform to do away. 
 
 There was another very radical difference between the two schemes. 
 The view of the original projectors was to introduce the form of trial by 
 jury in many of the cases brought before the court of session, which might 
 have been done in several instances with a beneficial effect. The act in 
 question merely appointed commissioners, who were to report on various 
 matters relative to the procedure before the court ; and among others, 
 *' in what cases, and in what manner and form, it appears to them that 
 jury trial could be most usefully established in that court ;" but the 
 public has not yet been informed whether any report was ever made. 
 The plan carried into effect has been productive of great benefit. It 
 speedily cleared the tables of the court of that continually accumulating 
 mass of cases which created so much delay even in the most trifling ques- 
 tions, and often occasioned the most serious distress in those where more 
 important interests were at stake. 
 
 This plan, important in its results as it proved to be, was not less 
 simple in its conception. It was nothing more indeed than separating the 
 whole judges already on the bench into two divisions, forming two totally 
 distinct courts, with co-extensive powers, privileges, and jurisdictions. 
 The first division was composed of seven of the ordinary lords of session, 
 and the lord president of the whole court. The lord justice clerk, and 
 the remaining six ordinary lords of session, formed the second division. 
 The lord president, and the lord justice clerk, when present, preside over 
 their respective divisions ; when these chiefs were absent, the judges of 
 each division were empowered to appoint one of their own number to pre- 
 side ^ro tempore. 
 
 For the routine of judicial business, four judges in each division were 
 declared to be a quorum ; but in framing acts of sederunt the same 
 forms and requisites were necessary as before. They, of course, could 
 only be passed " by the whole court, or a quorum thereof consisting of 
 
 3 L 
 
^30 COURTS OF LAW IN SCOTLAND. 
 
 nine of the judges." With few exceptions, the new courts exercised the 
 same duties, powers, and functions, in all respects, as had formerly been 
 exercised under the old form of the court. As the number of the inner 
 chambers was doubled, the number of the officiating judges in the outer 
 house was increased in a like proportion. Two of the ordinary judges 
 (excluding the lord president and the lord justice clerk,) were appointed 
 to officiate each week, one for each division, " for hearing causes in the 
 rolls of suspensions, advocations, regulations, and ordinary actions ;' ' and 
 two others, in the same manner, officiated in the bill chamber during the 
 time of session. 
 
 Such is a brief outline of the principal features of that act, which made 
 the first great step towards a reform in the constitution of our superior 
 court It contained besides, as has already been mentioned, a clause re- 
 serving to his majesty the nomination and appointment of certain persons 
 " to make inquiries into the form of process in the court of session, and 
 to report on various matters therein particularly set forth." His majesty 
 was graciously pleased to appoint certain commissioners ; inquiries were 
 made, and reports on some of the points, at least, have been submitted to 
 the public. In consequence of these reports another act was passed,* 
 chiefly indeed for the purpose of abridging the form of extracting decrees, 
 but into which also some farther alterations on the form of the court were 
 contrived to be introduced. 
 
 Notwithstanding the great relief affi^rded to the judges, it had been 
 found, by the division of the court into two chambers, that it was still too 
 much for one judge to be burdened with the business of both the inner 
 and the outer house; and that it was next to impossible that he could give 
 that despatch which was so extremely desirable ; and, at the same time, 
 affi^rd such a strict attention to the whole cases before him as was indis- 
 pensable for the proper discharge of his duty. The new act, therefore, on 
 the narrative that " it would facilitate the despatch of business in the court 
 of session, if the duty of the outer house were done by a certain number 
 of the ordinary judges officiating there in a more permanent manner than 
 the present weekly rotation among the whole," enacted " that the three 
 junior ordinary judges of the first division of the court of session, and the 
 two junior ordinary judges of the second division, shall be relieved from 
 attendance in the inner house, and shall, after the passing of this act, 
 not sit therein, but shall sit as lords ordinary in the outer house, to per- 
 form the business of the outer house. Although this regulation extended 
 to the duty of administering oaths and examining witnesses, it did not ex- 
 tend to the bill chamber ; tlie business in which was ordered to be done as 
 before, by the whole ordinary lords in rotation. 
 
 * 59 Geo. III. 
 
COURTS OF LAW IN SCOTLAND. 451 
 
 As it was conjectured, however, that some, if not all, of the five theb 
 existing junior judges who were affected by this new regulation, might 
 object to its extension to them, out of delicacy its operation was deferred, 
 and the course of rotation appointed to remain as it then existed, until 
 either by their own consent, or the appointment of new judges, the re- 
 quisite number should be obtained "for carrying the said system into 
 execution." So soon as this should take place, the quorum of both the 
 inner chambers was to be reduced to three, and the remaining judges were 
 immediately to be " relieved from attendance in the outer house, and from 
 performing the duties of lords ordinary therein." This improvement on 
 the form of the court was not, however, immediately carried into effect. 
 As had been anticipated, few of the judges who had been appointed prior 
 to the passing of the act were inclined to banish themselves permanently 
 to the outer house j and a great length of time might have elapsed be- 
 fore the new system could have been introduced, had not a melancholy 
 fatality deprived the bench, within a very short period, of some of its 
 brightest ornaments, and thus made room for the requisite number of new 
 appointments. Every thing was now ready for the change, but it was dis- 
 covered that there were still a few alterations that could be made with 
 good effect. The act just recited did not go into such detail as was con- 
 sidered necessary, and another act was passed for the purpose of finally 
 setting the matter to rest. 
 
 By the provisions of this latter act, the whole business of the five junior 
 judges, and their different departments, are distinctly determined. The 
 junior of the three ordinary judges of the first division, who by the former 
 act had been ordered to sit permanently in the outer house, is appointed 
 to " officiate exclusively as lord ordinary on the bills, and perform the 
 whole business of the bill chamber in time of session.'^ To him all remits 
 by either division of the court of session to a lord ordinary, in matters 
 relating to sequestration or bankruptcy, and in such other matters as to 
 either division shall seem proper, are thenceforward to be made. But in 
 all these cases, in order to keep the business of the two divisions separate 
 and distinct, and to prevent questions originating in one division from 
 being carried into the other-^a circumstance which would occasion inex- 
 tricable confusion, besides the greatest delay and expense — it is enacted, 
 that " where any application in the bill chamber shall be made to the said 
 last appointed or junior ordinary judge of the first division, the party com- 
 plaining, or making the application, shall notify to such judge the division 
 of the court to which such application shall be understood to belong ;" 
 and it shall be " competent to either party, who shall be dissatisfied with 
 any interlocutor pronounced by such lord ordinary, to reclaim to such 
 division so notified ; and, in cases of remits, it shall only be competent to 
 reclaim to that division of the court by which the remit shall have been 
 
452 COURTS OF LAW IN SCOTLAND. 
 
 made ;" '*■ and in cases where such last appointed or junior judge shall 
 think fit to take any cause to report, such report shall be made to the 
 division or court to which, in the event of reclaiming, the party or parties, 
 is or are hereafter directed and appointed to reclaim." 
 
 The other four junior judges are appointed to officiate as permanent 
 lords ordinary, *' for hearing and determining causes in the rolls of sus- 
 pensions, advocations, regulations, and ordinary actions ;" they are to 
 " sit in the outer house weekly by rotation, in such manner as that a 
 judge or ordinary of the first division shall officiate the first week, a judge 
 or ordinary of the second division the second week, a judge or ordinary 
 of the first division the third week, and a judge or ordinary of the second 
 division the fourth week ; and so alternately thereafter a judge of the one 
 division following a judge of the other, as ordinary in the outer house." 
 
 All these junior judges, as well as the lord ordinary on the bills, as the 
 four permanent outer-house judges, are appointed to sit and officiate in 
 their respective departments, " according to the rules and forms of pro- 
 ceeding at present established, or which shall be established, by any act or 
 acts of sederunt of the whole court of session, or a quorum thereof." 
 
 The act of which we have now given an account, contains, besides 
 ample provisions against any inconvenience that might arise from the 
 death, resignation, or absence of any of the judges ; it regulates the man- 
 ner in which the processes pending before any of the lords ordinary, un- 
 der the old system, should be brought to a conclusion ; it also points out 
 the remedy, where either of the divisions may happen to be reduced to a 
 number less than the quorum ; and lays down a fixed rule of proceeding 
 in cases where the voices in either division are equal. 
 
 Such, then, is the history of the court of session, which has, since its 
 original institution, undergone such numerous and fundamental alterations, 
 that it can hardly be now recognized as the same institution. It may, how- 
 ever, with great safety be averred, that most of the alterations have been 
 decidedly improvements, especially those of a later date.* 
 
 Jurisdiction op the Court of Session. — The court of session, 
 as originally instituted by king James I., in the year 1425, was vested 
 with a jurisdiction in all cases which had formerly been competent before 
 the king and his council. It appears, however, never to have had cog- 
 nizance in any question concerning fee or heritage. Its authority in these 
 cases was expressly excluded by act of parliament,f and its judicial powers 
 confined almost entirely to cases of obligation, contract, and debt. In 
 matters of heritage the daily council viBs not more enlarged. According 
 to our best authorities, this court continued to exercise the same limited 
 jurisdiction with the session which had preceded it. The act which in- 
 
 * Ivory's Forms of Process. f 1457, c. GO. 
 
COURTS OF LAW IN SCOTLAND. 453 
 
 slituted the (kiily council assigns it a jurisdiction in all civil causes and 
 complaints daily, as they shall happen to occur.* But we have the 
 authority of Erskine for stating, that this did not extend to questions re- 
 garding heritage, which at that time seem to have been competent only 
 before the justiciar. " The civil jurisdiction vested in it was extremely 
 limited, and it was perhaps considered as too heavy a burthen for the 
 justiciar of Scotland to be charged with the supreme jurisdiction, not only 
 in criminal but in all civil matters concerning heritable rights." And Mr 
 Hume, an author of considerable weight, in his learned work, says, " the 
 commissions of these judicatures, (the session and daily council,) besides 
 being imperfect and ineffectual in other respects, were very limited as to 
 the description of causes which they included ; and, in particular, that 
 they did not attribute to the new judges the cognizance of any claim or 
 matter of heritable ri^ht.^^\ Neither court possessed any considerable 
 powers of review over the decisions of inferior judicatories. On the con- 
 trary, both of them seem, in most respects, to have enjoyed only a 
 cumulative jurisdiction with the judges ordinary. 
 
 The court of session, when reformed by James V., received a jurisdic- 
 tion much more extensive than had belonged to either of the prior institu- 
 tions. The same extensive jurisdiction still remains with it under its pre- 
 sent form. 
 
 Its judicial authority, in one or other of its capacities, either as a court 
 of the first or second instance, is universal in civil matters ; and in a few 
 instances extends even to cases which, at first sight, might appear to be- 
 long more peculiarly to the criminal court. As a court of the first in- 
 stance, it enjoys both an exclusive and cumulative jurisdiction ; and, with 
 the exceptions immediately to be noticed, it is, under one or other of these 
 jurisdictions, entitled to judge primarily in all civil cases. Where the action 
 is one of uncommon importance or intricacy, the lords of session exercise 
 a peculiar jurisdiction, to the exclusion of all inferior judges. Among 
 actions of this nature, says Erskine, are to be considered " declarators of 
 property in heritage, and other competitions of heritable rights ; restitu- 
 tions of minors ; provings of the tenour ; cessiones honorum ; reduc- 
 tions of decrees and deeds, and all other rescissory actions, judicial sales 
 of the estates of minors and bankrupts, &c." 
 
 In the other civil causes which it is entitled to decide in the first in- 
 stance, this court only possesses a cumulative jurisdiction with the judge 
 ordinary. But there is a considerable set of actions which do not fall un- 
 der the jurisdiction of the court of session, as a court of original resort; 
 but must, in the first instance, pass through some of the inferior courts. 
 Some of the most important of these are: 1. Causes proceeding on brieves 
 
 lii03, c. 58. t Trial of Crimes, vol. i. p. 6. 
 
^•S* COURTS OF LAW IN SCOTLAND. 
 
 issued forth of chancery ; such as brieves for serving of heirs, or tutors of 
 law, or relicts to terces, brieves of idiotcy for cognoscing furiosity or 
 fatuity, &c * The reason is, that these brieves can only be directed to, 
 and served by, the inferior judges. 2. Maritime and consistorial causesj 
 these being competent, in the first instance, only in the courts of the 
 admiral and commissary. 3. All causes not exceeding the value of ,£25 
 sterling, which must be carried on, in the first instance, before the inferior 
 judges, in the manner directed, and with the exceptions specified in the 
 act of Charles II., entitled " an act concerning the regulation of the judi- 
 catories."! Besides these, there are several other cases in which the 
 primary jurisdiction of the court of session is expressly excluded by 
 statute. Such are the causes proper to the court of freeholders, to the 
 lord lyon court, &c. As a court of review, its jurisdiction is even still 
 more unlimited than as a court of the first instance. In this character 
 the sentences of almost every inferior court may be brought before them, 
 either by way of advocation, suspension, or reduction. There are, in- 
 deed, a very few cases withdrawn by special statute from the operation of 
 this power of review, but the number is extremely circumscribed. For- 
 merly, even the interlocutory judgments of the inferior courts might have 
 been submitted by advocation to the review of the lords of session ; but 
 this was a source of the greatest delay and expense, and the evil was very 
 properly remedied in a late act of parliament,;}: [which, among other altera- 
 tions with respect to the form of procedure before the court of session, 
 declared " that no action can be removed from the inferior court, before 
 which it originated, till final judgment shall have been pronounced ;" 
 except on one or other certain specified grounds. 1. " Incompetency, 
 including defect of jurisdiction, personal objection to the judgment, and 
 privilege of party. 2. Contingency. 3. Legal objection with respect to 
 the mode of proof, or with respect to some change of possession, or to an 
 interim decree for partial payment ; provided that, in the cases under this 
 third head, leave is given by the inferior judges." There is another 
 limitation of this power of review in cases of advocation. § By the act of 
 Charles II. the lords of session are expressly discharged from granting 
 letters of advocation in any action for sums below 200 merks, (£ll , 2s. 2fd. 
 sterling,) " intended or to be intended before any competent inferior 
 judicatory." This limitation has since been extended to actions for sums 
 below £l2.|| Besides the authority which the court of session thus pos- 
 sesses over the sentences of inferior judicatories, it exercises also, in several 
 cases, a power of reconsidering, on special grounds, the judgments pro- 
 nounced by itself. In consequence of this, it may reverse " not only in- 
 
 * Stair, bookiv. f 1672, c. 16. \ 50 Geo. III., c. 11?. 
 
 § 1663, c. 9. II 20 Geo. II., c. 43. 
 
COURTS OF LAW IN SCOTLAND. 455 
 
 terlocutory sentences, upon a reclaiming bill by the party aggrieved, but 
 definitive (after sentence pronounced and even extracted) by way of sus- 
 pension or reduction."* Till very lately, however, when any interlocutor 
 of a lord ordinary had, through inadvertency, been allowed to become 
 final, it was incompetent for the inner house to review it upon petition. 
 From this incompetency, unavoidable indeed in principle, serious incon- 
 venience was found to result. A late statute, therefore, provided a re- 
 medy.-j- '* That if the reclaiming or representing days against an inter- 
 locutor of a lord ordinary shall, from mistake or inadvertency, have ex- 
 pired, it shall be competent, with the leave of the lord ordinary," to sub- 
 mit the interlocutor to the review of the inner house, by petition ; but the 
 petitioner must pay the expenses previously incurred by the other party. 
 
 The criminal matters in which this court possesses a jurisdiction are not 
 numerous ; and are chiefly limited to cases which, on account of the mode 
 of procedure requisite to be followed, or their connexion with some civil 
 suit previously in dependence, fall more regularly to be discussed in the 
 civil than in the criminal court. Mr Erskine classes them under three 
 heads : 1 . When the case is made competent before the session by express 
 statute ; as in contraventions of law-burrows ; in deforcement and breacli 
 of arrestment ; fraudulent bankruptcy ; wrongous imprisonment, &c. 
 2. Where the crime is necessarily connected with a civil question depend- 
 ing in court ; as in the crimes of falsehood or usury, when either of these 
 is made the ground of an action of reduction. In the crime of forgery, 
 the court of session has sometimes even an exclusive jurisdiction; as, when 
 the summary proceedings of the justiciary are inconsistent with the evi- 
 dence to be adduced. 3. Where the action, though founded on criminal 
 facts, is pursued only ad civilem effectum ; as in actions of scandal or 
 verbal injury, where damages to the private party only are claimed ; in 
 hdXi^x^ pendente lite,X when urged to the effect only of making the aggres- 
 sor lose his cause. This last class of causes, however, seem more strictly 
 to belong to the proper civil jurisdiction of the court ; for notwithstanding 
 the action ad civilem effectum, the criminal court may also interpose ad 
 Tnndictam publicam. It may here be remarked in passing, that in all 
 criminal cases competent before the court of session, they can inflict only 
 the lighter degrees of corporal punishment. If the crime demand the 
 higher penalties of death or demembration, the case must be remitted to 
 the justiciary, as the only competent judicature. Before the union of the 
 two kingdoms, the jurisdiction of the court of session was supreme in de* 
 gree, as it was universal in extent ; for though it has, no doubt, been 
 maintained that even before that event its decrees were subject to the re- 
 view of the parliament of Scotland, the assertion does not appear to be 
 
 ♦ Erskine, book i. f 48 Geo. III.,c. 151. j 1394, c, 219. 
 
*56 COURTS OF LAW IN SCOTLAND. 
 
 borne out by any satisfactory evidence. Stair warmly espoused the 
 supremacy of the court ; and his argument, founded directly on acts 
 of parliament, is really unanswerable. Bankton decidedly lays down the 
 same opinion. And though Erskine delivers his sentiments in more 
 guarded language, he evidently leans to the same side. The question is 
 now merely one of curiosity ; for it is agreed by all, tliat, since the union, 
 the judgments of the court of session are subject to the review of the 
 British house of peers. Though its jurisdiction is thus, in reality, no 
 longer supreme, yet the court of session still retains, in general, the title 
 which custom had stamped upon it — of the supreme civil judicature of 
 Scotland ; but the fastidious acknowledge it only under the appellation of 
 one of the superior courts. 
 
 The lords of session act not only as a court of law, but also, ex nohili 
 officio, as a court of equity. Some of our most eminent authorities have 
 supposed this nohile offi^ium to be inherent in the supreme judicature of 
 every state, and as such of course in our court of session. But it does not 
 seem necessary to lay down a position so general. A more natural 
 explanation of the power assumed by the court under this imposing title, 
 may perhaps be founded on the statute* authorizing the lords " to mak 
 sic acts, statutes, nmd ordinances, as they sail think expedient for ordour- 
 ing of process and haistie expedition of justice." Under this statute, the 
 court has been led by gradual steps to assume an authority, which it is 
 likely was neither originally inherent in it, nor even perhaps intended ever 
 to belong to it. In consequence, however, of the benefit arising from the 
 moderate and judicious manner in which this usurped power has ever been 
 exercised, it was probably so long overlooked by those who might have 
 checked it, that at last it has become so sanctioned by usage, as almost to 
 be considered as a necessary branch of the constitution of the court. 
 .Whatever was the origin of this nohile officium, as it is called, or on 
 whatever authority it rests, in virtue of it the court have always considered 
 themselves as entitled to interpose when necessary, in abating the rigour 
 of the common law, interpreting and modifying it often according to the 
 more delicate and gentle maxims of equity. They also frequently supply 
 defects in the ordinary forms of diligence, and interpose in a variety of 
 other points, necessary for the public good. Under this nohile officium, 
 likewise, may be classed the ministerial powers exercised by the court, in 
 virtue of which, upon any vacancy occurring in the offices of commissariats, 
 sheriffships, &c., by the death or incapacity of the former incumbents, they 
 appoint certain persons to officiate in the interim, under their special 
 commission, until the vacancy be regularly supplied in the proper course. 
 
 * 1540, c. 93. 
 
COURTS OF LAW IN SCOTLAND. 457 
 
 It has already been observed, that this court by its institution, was em- 
 powered to lay down such regulations for the form of its own proceedings 
 as should appear best calculated for the speedy promotion of justice. 
 This original power was ratified by a statute* in rather more broad and 
 comprehensive terms. The court was pleased to give this power a pretty 
 comprehensive interpretation; and many of their ordinances came in course 
 of time to involve matters of right, which had not the smallest connexion 
 with the rules of judicial procedure. In consequence of the universal 
 acquiescence with which they were received, some of these have become 
 part of the common law, without any aid from parliamentary authority ; 
 while others, being expressly ratified by the legislature, have found their 
 way into the statute law. As to that portion of these ordinances which 
 still remains unratified, it may generally be laid down, that so far as they 
 regard only the forms of procedure before the court, they have of them- 
 selves all the authority of acts of parliament; but in so far as they exceed 
 this their proper province, and intrude upon other matters, they are 
 chiefly to be considered as a public notification of what the judges appre- 
 hend to be the law of Scotland, and of what, as such, they are determined 
 to observe for the future, as rules of judgment.f 
 
 Members op the College of Justice. — It is not now very easy 
 to decide who were the original members of the college of justice. Their 
 number has been considerably increased since its original institution by 
 James V. ; and it is a fact which does not admit of dispute, that this 
 increase has been entirely owing to custom, and not to legislative enact- 
 ments. At its first establishment, from the terms of the act of institution 
 it may be conjectured, that the only persons then ranked among its mem- 
 bers were the judges or senators (as they were then called) of which the 
 court was composed, and to them alone were the privileges granted. 
 And though advocates, writers to the signet, clerks of court, &c., are 
 repeatedly mentioned, yet not one sentence is to be met with which could 
 justify the supposition, that they were likewise included under the appella- 
 tion of the college of justice. No contradiction is furnished to this con- 
 jecture by the early ratifications of the institution. For the manner in 
 which the college is spoken of in these acts, is so vague, that it is impos- 
 sible to draw any inference from them, either as to the number or the 
 privileges of its members. In the course of time, other classes of persons 
 than mere judges claimed to be included in the privileged class, and their 
 claims were duly allowed. So early "as the year 1555, the lords of coun- 
 cil and session, taking various circumstances into consideration, for which, 
 to quote their own wordsjt " thae suld be preferrit the uthers prelatis of 
 
 * 1540, c. 93. f Ivory's Forms of Process. t Act of Sederunt, May II, 1555. 
 
 3 M 
 
4*58 COURTS OF LAW IN SCOTLAND. 
 
 the realme, according to the institution of the college of justice, and suld 
 half haistie expeditioun of their caussis in the Setterday's table j therefoir, 
 hes statute and ordainit, that in all tymes cuming, there be ane table made 
 separetelie be itself, for all the lords of sessioun^ their scribis, advocatis, 
 and members of courts An act of parliament, passed a few months 
 afterwards, conferred a much more valuable privilege on the same classes 
 of persons mentioned in the above act of sederunt. It declares " that na 
 advocation of causes be taken be the lords fra the judge ordinar, except 
 it be, &c., the causes of the lords of council^ and tJieir advocates, scribes, 
 and members.''^* From the concurrent testimony, therefore, of these two 
 documents, it may be fairly laid down that in the year 1555 at least, if 
 not before, the advocates, scribes, and some other members of court, had 
 begun to be classed along with the lords of session as members of the 
 college of justice. They are not, indeed, expressly recognized as possessing 
 that character either in the act of sederunt, or the act of parliament ; but, 
 from the reasons assigned in the former for conferring this privilege, and 
 its striking coincidence, both in language and purpose, witli the latter, it 
 is evident that if the privilege was not then conferred upon them precisely 
 as members themselves, it must at least have been so on account of some 
 intimate connexion supposed to exist between them and another class of 
 persons, who, out of all dispute, were allowed to be members of the college. 
 This latter supposition is perhaps the more probable of the two, and the 
 connexion between the classes of privileged persons is sufficiently intimate, 
 not only to account for their being included under similar privileges, but 
 still farther for their being ultimately recognized under the same appella- 
 tion, and acknowledged as members of the same body. But if the con- 
 nexion between the senators of the college of justice and the various 
 members of court was so intimate in the year 1555, as to produce the 
 effects stated, it is not wonderful that the very effects thus produced were, 
 in their turn, the causes of effects still more extensive. The privileged 
 classes were now more closely linked together, and more nearly assimilated 
 by the very privileges which they enjoyed in common. They were for- 
 merly connected in their professional pursuits, and now one common 
 interest still more attached and united them. The members of court had 
 long been ranked by the public as subordinate members of the same insti- 
 tution whose senators had been erected into a college. The legislature 
 had begun by conferring the same common privileges upon all ; and, 
 following the universally received language of common conversation, they 
 soon ended in recognizing them under the same common appellation. 
 Accordingly, the very next acts of parliament, which mention the college 
 
 * 1555, c. 39. 
 
COURTS OF LAW IN SCOTLAND. 45» 
 
 of justice, describe it in such a manner as evidently implies that its members 
 were not limited to the judges that sat on the bench. The act, in particular, 
 of 1594,* expressly mentions " the lords of the session, ordinar, or extra- 
 ordinar, advocates, clerkes, writters, their servandes, or ony uiher mem- 
 ber of the colledge of justice." But though, from the above enumeration, 
 it was no longer so doubtful a matter as formerly, who were the members 
 of the college of justice, still the point was not just altogether settled. The 
 ambiguous words, ony uther member, still remained to be cleared. And 
 it was not till the year 1697, that any thing farther was done towards 
 obviating this difficulty. A dispute having then occurred between the 
 college and the magistrates of Edinburgh, respecting the number of privi- 
 leged persons, an act of declarator was raised by the former, which pro- 
 duced a long and spirited discussion ; and a judgment was eventually 
 pronounced which removed every shadow of doubt. The judgment 
 is recorded in the books of sederunt, and its authority never having been 
 called in question, it has long been considered as part of the common law. 
 
 The following persons are declared, by this important judgment, to be 
 the privileged members of this very numerous college : — 
 
 The lords of session ; 
 
 Advocates ; 
 
 Clerks of session ; 
 
 Clerks of the bills ; 
 
 Writers to the signet ; 
 
 Deputies of the clerks of session, who serve in the outer house ; and 
 
 Their substitutes for registrations, being one in each clerk's office ; 
 
 The three deputes of the clerks of bills ; 
 
 The clerks of exchequer ; 
 
 The directors of the chancellary ; their depute ; and two clerks thereof ; 
 
 The writer to the privy seal ; and his depute ; 
 
 The clerks of general registers of seisins and hornings ; 
 
 The macers of the session ; 
 
 The keeper of the minute book ; 
 
 The keeper of the rolls of the inner and outer house. 
 
 But comprehensive as this list is, the privileges are not confined solel) 
 to them ; the following personages are included : — 
 
 One actual servant of each lord of the session ; 
 
 One servant of each advocate ; 
 
 Four extractors in each of the three clerks' offices of the session ; 
 
 Two servants employed by the clerk of the register in keeping tlje 
 public registers ; and 
 
 * c. 20. 
 
4*56 COURTS OF LAW IN SCOTLAND. 
 
 the realme, according to the institution of the college of justice, and suld 
 half haistie expeditioun of their caussis in the Setterday's table; therefoir, 
 hes statute and ordainit, that in all tymes cuming, there be ane table made 
 separetelie be itself, for all the lords of sessioun, their scribis, advocatis, 
 and members of court.^'' An act of parliament, passed a few months 
 afterwards, conferred a much more valuable privilege on the same classes 
 of persons mentioned in the above act of sederunt. It declares " that na 
 advocation of causes be taken be the lords fra the judge ordinar, except 
 it be, &c., the causes of the lords of council, and tlieir advocates, scribes, 
 and members.''^* From the concurrent testimony, therefore, of these two 
 documents, it may be fairly laid down that in the year 1555 at least, if 
 not before, the advocates, scribes, and some other members of court, had 
 begun to be classed along with the lords of session as members of the 
 college of justice. They are not, indeed, expressly recognized as possessing 
 that character either in the act of sederunt, or the act of parliament ; but, 
 from the reasons assigned in the former for conferring this privilege, and 
 its striking coincidence, both in language and purpose, witli the latter, it 
 is evident that if the privilege was not then conferred upon them precisely 
 as members themselves, it must at least have been so on account of some 
 intimate connexion supposed to exist between them and another class of 
 persons, who, out of all dispute, were allowed to be members of the college. 
 This latter supposition is perhaps the more probable of the two, and the 
 connexion between the classes of privileged persons is sufficiently intimate, 
 not only to account for their being included under similar privileges, but 
 still farther for their being ultimately recognized under the same appella- 
 tion, and acknowledged as members of the same body. But if the con- 
 nexion between the senators of the college of justice and the various 
 members of court was so intimate in the year 1555, as to produce the 
 effects stated, it is not wonderful that the very effects thus produced were, 
 in their turn, the causes of effects still more extensive. The privileged 
 classes were now more closely linked together, and more nearly assimilated 
 by the very privileges which they enjoyed in common. They were for- 
 merly connected in their professional pursuits, and now one common 
 interest still more attached and united them. The members of court had 
 long been ranked by the public as subordinate members of the same insti- 
 tution whose senators had been erected into a college. The legislature 
 had begun by conferring the same common privileges upon all ; and, 
 following the universally received language of common conversation, they 
 soon ended in recognizing them under the same common appellation. 
 Accordingly, the very next acts of parliament, which mention the college 
 
 * 1555, c. 39. 
 
COURTS OF LAW IN SCOTLAND. 45§ 
 
 of justice, describe it in such a manner as evidently implies that its members 
 were not limited to the judges that sat on the bench. The act, in particular, 
 of 1594,* expressly mentions " the lords of the session, ordinar, or extra- 
 ordinar, advocates, clerkes, writters, their servandes, or ony uther mem- 
 ber of the colledge of justice." But though, from the above enumeration, 
 it was no longer so doubtful a matter as formerly, who were the members 
 of the college of justice, still the point was not just altogether settled. The 
 ambiguous words, ony uther member^ still remained to be cleared. And 
 it was not till the year 1697, that any thing farther was done towards 
 obviating this difficulty. A dispute having then occurred between the 
 college and the magistrates of Edinburgh, respecting the number of privi- 
 leged persons, an act of declarator was raised by the former, which pro- 
 duced a long and spirited discussion ; and a judgment was eventually 
 pronounced which removed every shadow of doubt. The judgment 
 is recorded in the books of sederunt, and its authority never having been 
 called in question, it has long been considered as part of the common law. 
 
 The following persons are declared, by this important judgment, to be 
 the privileged members of this very numerous college : — 
 
 The lords of session ; 
 
 Advocates ; 
 
 Clerks of session j 
 
 Clerks of the bills ; 
 
 Writers to the signet ; 
 
 Deputies of the clerks of session, who serve in the outer house ; and 
 
 Their substitutes for registrations, being one in each clerk's office ; 
 
 The three deputes of the clerks of bills ; 
 
 The clerks of exchequer ; 
 
 The directors of the chancellary ; their depute ; and two clerks thereof ; 
 
 The writer to the privy seal ; and his depute ; 
 
 The clerks of general registers of seisins and homings ; 
 
 The macers of the session ; 
 
 The keeper of the minute book ; 
 
 The keeper of the rolls of the inner and outer house. 
 
 But comprehensive as this list is, the privileges are not confined solel} 
 to them ; the following personages are included : — 
 
 One actual servant of each lord of the session j 
 
 One servant of each advocate ; 
 
 Four extractors in each of the three clerks' offices of the session ; 
 
 Two servants employed by the clerk of the register in keeping the 
 public registers ; and 
 
 * c. 20. 
 
4t«0 COURTS OF LAW IN SCOTLAND. 
 
 The librarian of the advocates' library. 
 
 And by the act of queen Anne,* the privileges have been farther 
 extended to 
 
 The barons, and other members of tlie Scots court of exchequer. f 
 
 The Lords »of Session. — It has been already observed, that the 
 fifteen ordinary lords who compose the court of session are now distributed 
 into two divisions, forming two separate and distinct courts. On its first 
 institution, it was a fundamental part of its constitution, that one-half of 
 the judges should be prelates, the other laymen. But this fundamental 
 principle was gradually altered, and one of the articles in the treaty of 
 union has rendered it impossible for any churchman, at least as such, to 
 sit on the bench in the character of a judge. The 19th art. of Union 
 declares, that no person can be eligible to the situation of a judge, except 
 he has served in the college of justice as an advocate or principal clerk of 
 session for five years, or as a writer to the signet for ten years. On their 
 appointment to the bench, the judges generally take a title from their 
 estates ; but sometimes they retain their own surnames : the lord president 
 and lord justice clerk are always designated by their offices. The two 
 latter also, from their superior dignity, have of course the precedence of 
 the others ; the only distinction between the other judges, with respect to 
 each other, arises from the priority of their admissions. It is agreeably to 
 these rules of precedence, and not from any regard to title, birth, or office 
 in the state, that the lords of session take their places on the bencli. When 
 once appointed, the judges continue throughout all their different depart- 
 ments, to officiate in the same division to which they were first nominated. 
 The junior judge of the first division, who officiates in the bill-chamber for 
 both divisions, is promoted, on the occurrence of a vacancy in his division, 
 to the outer house, and from thence in process of time he is translated to 
 the corresponding chamber in the inner house. The steps are exactly 
 similar by which the outer house ordinaries of the second division reach 
 the inner house, with this exception, that they are never called on to 
 officiate in the bill chamber.;} 
 
 The Advocates Judge Bankton was of opinion, " that of old we 
 
 had no advocates licensed by public authority." On the institution of the 
 college of justice, however, a certain number of persons were authorized 
 by special statute to practise before the court. But the business of the 
 court, and the endowments of the lawyers, in those days, must have been 
 extremely limited, since the number of advocates was expressly restricted 
 to ten ; and even that number, small as it now appears, it was found 
 
 * 6 Anne, c. 26. t Ivor) 's Forms of Process. Beveridge's do 
 
 J Ivor}'s Forms of Piocess. Beveridge's do. 
 
COURTS OF LAW IN SCOTLAND. 461 
 
 impossible, at the date of the statute, to fill up with persons properly quali- 
 fied for the office. This statutory restriction does not seem, however, to 
 have remained long in force. The number of advocates soon increased, and 
 the roll of the faculty contains at present upwards of three hundred names. 
 At first there does not appear to have been any peculiar form neces- 
 sary for the admission of an advocate ; the only requisite then was, that 
 he should be a man " of best name, knowledge, and experience, and be 
 received with advice of the lords." So late as the middle of the sixteenth 
 century, advocates were received by the court without almost any ex- 
 amination. Gentlemen training for the bar, used merely to attend the 
 lawyers in practice for a year or two in the capacity of their first servants 
 or clerks, which was^synonimous with the agents of the present day. And 
 when in this employment they had acquired some slight experience in the 
 management of processes, they applied to the court, setting forth their 
 services, and, on producing certificates of their honesty and abilities, 
 were immediately admitted. Afterwards, however, none were admitted 
 " but such as had spent many years in the study of the laws, either at 
 home or abroad ;"* and were, upon trial, found qualified either in the 
 civil law, or in the municipal laws of Scotland. The ordinary, and, 
 strange as it may seem, the most honourable course of entry, was by an 
 examination on the civil law ; for conducting which, certain regulations 
 were laid down, and examinations appointed by the faculty of advocates, 
 under the sanction of the court. But if the intrant preferred to be 
 passed on a trial of his proficiency in the municipal laws of his own 
 country, he was admitted by the lords themselves after an examination in 
 prcesentia ; but this was styled the extraordinary form of admission, and 
 for which double fees were paid. The present form of admission is re- 
 gulated by act of sederunt.f There is now no alternative course to be 
 pursued ; "a proficiency not only in the civil law, but also in the munici- 
 pal law and practice of Scotland," being declared indispensable. The in- 
 trant must present a petition to the court, stating his desire to be entered 
 an advocate, and his readiness to undergo the customary trial. The 
 court remits him to the dean of faculty, and he again to private examina- 
 tors. On satisfying them that he has attained the age of twenty years 
 complete, they proceed to examine him on the civil law. If they find him 
 qualified on this trial, they report him to the dean and faculty ; and on 
 the expiration of one whole year, but not sooner, he is then examined on 
 the municipal law. The intrant having acquitted himself in this also io 
 their satisfaction, they recommend him to the dean, who assigns him some 
 title in the civil law for his public trial. Upon this title he is ordered to 
 compose a thesis, which he must defend publicly. The dean then assigns 
 
 ♦ SpoUiswood's Forms of Process, pp. 50 and 43. t 28tli Februar} , 1750. 
 
4»64 COURTS OF LAW IN SCOTLAND. 
 
 The duty of writers to the signet is to prepare the warrants of all 
 charters of lands flowing from the crown; all summonses for citing parties 
 to appear in the court of session; all diligences of the law for affecting the 
 person or estate of a debtor, or for compelling implement of the decrees of 
 the supreme court. They have further the privilege of acting as agents 
 or attorneys in conducting causes before the court of session. After ten 
 years' service, and certain probationary examinations on civil law, they 
 may be appointed judges of the court of session. They are also eligible 
 to several other important offices connected with the court of session, and 
 they are the only persons entitled to act as clerks to services before the 
 sheriff of Edinburgh on special commission — a privilege which they for- 
 merly possessed in services before the macers — but which are now abolished. 
 
 The society is now under the keeper of his majesty's signet, who usually 
 acts by a deputy keeper; and the affairs of the body are conducted by his 
 deputy and certain commissioners named by the keeper, from the mem- 
 bers, with power to them to make bye-laws for the admission of members, 
 and the regulation of their conduct. By the bye-laws at present in force, 
 a person, before applying to be taken on indenture by a writer to the 
 signet, must be at least fifteen years of age, and must have attended one 
 of the universities for two years, of which evidence must be produced 
 along with his petition. The indenture continues for five years ; the 
 maximwn apprentice fee is £210, besides which there are paid £20 to the 
 widow's fund, £50 to the library, and other smaller fees. One year must 
 intervene, after the expiry of the indenture, before he can be admitted as a 
 member of the society; and he must have attended three classes of law, inde- 
 pendently of his previous attendance at the university for two years. The 
 candidate being admitted to his trials, is first examined on his knowledge 
 of Scots law by three private examiners; and, at the distance of three 
 months, he is examined in the society's hall by the public examiners, in 
 the presence of the commissioners, as to In's knowledge of conveyancing. 
 The dues of his admission are about £50, with some trifling perquisites to 
 the officers and gown-keepers^ besides a stamp on the commission.* 
 
 Solicitors. — By a crown charter, which the solicitors obtained in the 
 year 1795, they are now entered into a body corporate, by the name of 
 " the society of solicitors before the court of session, high court of justici- 
 ary, and commission of tiends." No person can be admitted into this 
 society till he has first served as clerk or apprentice either to a solicitor or 
 writer to the signet for the space of five years, or acted in the capacity of 
 advocate's second clerk for the same length of time. After this, if he has 
 attained the age of twenty-one years complete, be of good moral character, 
 and properly qualified for the duties of the office, he is reported to the 
 
 * Bell's Dictionary of the Law of Scotland. 
 
COURTS OF LAW IN SCOTLAND. 465 
 
 court by certain examinators appointed for that purpose ; and, on taking 
 the usual oaths, his name is " entered in the sederunt book."* 
 
 Clerks op Session and other Officers op Court. — There are 
 six principal clerks of session, and six assistant clerks or closet-keepers, as 
 they are sometimes called. They are appointed by the king, and admitted 
 by the lords, after a probationary trial, and they must be either advocates 
 or writers to the signet of three years' standing; this appointment dis- 
 qualifies them from practising as advocates or agents before the court of 
 session. Their duty is to attend the judges in the inner house, and, under 
 their direction, to write out the judgments or interlocutors, or other 
 orders pronounced by the court, and to keep the books of sederunt. 
 Three of the principal clerks attend each division of the court. The de- 
 pute clerks officiate in the outer house before the lords ordinary, whose 
 judgments or interlocutors they write oiit. The six principal clerks 
 nominate their deputies jointly, the senior clerk having the casting vote in 
 case of equality. Each principal, and each depute clerk, has a distinct 
 apartment or closet, as it is called, in the register office, in which he 
 keeps the processes to which he is clerk. The duty of taking charge of 
 the outer house processes, of transmitting to the judges for consideration, 
 and of attending at the closets of the depute clerks to lend out the pro- 
 cesses to the agents for the parties, is discharged by the six assistant clerks 
 or closet-keepers, who also attend in the outer house while the court is 
 sitting, and assist the depute clerks in writing out the interlocutors of the 
 diflferent lords ordinary. The principal clerks have also assistants, who 
 officiate at their apartments in the register office, and take charge of the 
 processes depending before the inner house. Neither the principal nor 
 depute clerks are entitled to fees, but they have fixed salaries; the former 
 £1000 per annum each, and the latter £400. The assistants' emoluments 
 are derived from small fees which they exact for lending out and receiving 
 back processes, for lodging papers, &c.f 
 
 The keeper of the minute book holds his commission from the king. 
 His duty is to make up a short minute of the different protestations, acts, 
 and decrees pronounced in court, distinctly noticing the names and de- 
 signations of the parties. The minute book was ordered to be printed by 
 act of sederunt. 
 
 There are three keepers of the rolls; one for each division of the inner 
 house, and one for the outer. Before the court was divided, there was 
 only one keeper of the rolls for the inner house; whose office at one time 
 was in the appointment of the chancellor of Scotland. After the union, 
 this office was bestowed "on the person serving the lord president, for 
 the time being, as his clerk." Clerks to the presidents of each division 
 
 * Ivory's Forms of Process. f Bell's Law Dictionary. 
 
 3 N 
 
466 COURTS OF LAW IN SCOTLAND. 
 
 are still respectively keepers of the rolls of their several divisions, so long 
 only as they shall continue as clerks to the presidents. The keeper of the 
 outer house rolls is appointed by the lords of session. His commission is 
 usually granted ad vitam aut culpam ; one solitary instance only having 
 occurred of an appointment during pleasure. 
 
 Auditor of the Court op Session, is an officer appointed by the 
 crown, to whom either of the divisions, or any lord ordinary, may remit 
 to tax the costs of a suit in which expenses are found due. A special 
 remit of the particular account to be taxed is necessary; and the auditor 
 returns a report to the judge or court making the remit, who thereupon 
 pronounces decree for the amount of the taxed account. If either party 
 considers himself aggrieved by the auditor's report, it is competent for him 
 to state his objections to the court or judge, by whom they will be sum- 
 marily and finally disposed of. This office is one of very recent institu- 
 tion ; the first appointment was on 6th February, 1806; his fees are settled 
 by act of parliament. Ivory says " his appointment seems to be vested 
 in the court." Bell says " the nomination is vested in the crown," and 
 is held ad vitam aut culpam.* 
 
 Collector of the Fee Fund, is an officer still more recently 
 appointed. His province is chiefly to collect the dues of court, as fixed 
 by act of parliament ; to keep regular and distinct books of his receipts, 
 and to lodge the amount regularly, at least once a-week, either in the 
 bank of Scotland, or royal bank of Scotland. He is appointed by the 
 lord president, holds his office ad vitam aut culpam, and receives as a 
 remuneration for his trouble four per cent, on the dues received by him. 
 The money thus levied constitutes what the act calls a fee fund, and it is 
 from this fund that the salaries of the different officers of court are mostly 
 paid. 
 
 Macers, are the proper servants in the court of session. They are four 
 in number ; three of whom are nominated by the crown, and the other by 
 the family of Moncrief of Readie, who have long held the office of here- 
 ditary macer before the lords of session, and have always been allowed 
 to fill it by deputy. The macers are supreme judges in the service of all 
 brieves from chancery : but in cases of the smallest intricacy, the judges 
 appoint one of their own number to sit with them as assessors. It is more 
 particularly their business to call the causes pending before the court, in 
 the course of the diflFerent rolls ; to put the immediate orders of the lords 
 in execution, and keep order in the court. 
 
 The two keepers of the parliament house are appointed by the lords of 
 session and the magistrates of Edinburgh alternately. The mode of their 
 
 * Bell's Dictionary— Ivory's Forms. 
 
COURTS OF LAW IN SCOTLAND. 467 
 
 appointment was settled by contract between these parties, and is particu- 
 larly noticed in the books of sederunt.* 
 
 Privileges op the College op Justice — It has already been 
 observed, that whatever may originally have been the extent of the college 
 of justice, its privileges were conferred on the judges alone. These 
 privileges were valuable in the highest degree, exempting them " fra all 
 paying of taxes, contributions, and uther extraordinare chairges, to be 
 uplifted in ony times cumming, and fra the bearing of ony office or chairge 
 within burgh, or without, but gif it be their awin free will and consent."! 
 These were repeatedly ratified by act of parliament, and their number 
 increased by the addition of others little inferior in importance to those 
 originally conferred. Nor were the other branches of the college of 
 justice long excluded from participating in some measure with the lords 
 in the enjoyment of these privileges. For instance, the exemption from 
 the inferior courts was granted not only to the lords of counsel, but also 
 to their advocates, scribes, and members : besides several exemptions no 
 less extensive in their application. It was not, however, till the reign of 
 Charles II. " that the whole privileges, liberties, and immunities granted 
 and belonging to the ordinary lords and senators of the college of justice" 
 were extended to the '' advocates, clerks, writers to the signet, and 
 remanent members of the said college." 
 
 This act having so considerably enlarged the number of the privileged 
 class, it became in proportion an object of interest to ascertain what the 
 privileges actually were to which they were entitled. The college accord- 
 ingly seized the opportunity of a dispute between that body and the 
 corporation of Edinburgh, with regard to the liability of the former to 
 pay some of the town dues, to settle the question for ever in their own 
 favour. An action of declarator at the instance of the college was raised 
 and tried of course before themselves, when, as might be expected of 
 judges deciding their own cause, they pronounced a judgment, which, 
 besides establishing decidedly who were the privileged persons, also 
 finally and peremptorily settled what those privileges were: viz. the 
 members of the college are exempted from watching and warding j from 
 payment of tithes, or as it is called, annuity for ministers' stipends ; from 
 all the city imposts on goods carried to or from the city ; and from the 
 civil jurisdiction of the magistrates. 
 
 The last exemption extends likewise to all inferior jurisdictions. But 
 in the case of the city of Edinburgh, the peculiarity is, that the magi- 
 strates must at once sustain the declinature of their jurisdiction " without 
 obliging the party to raise an advocation, which is the method with 
 
 * Ivory's Forms of Process. Beveridge's do. Bell's Diet. f Act 1537, c 68. 
 
468 COURTS OF LAW IN SCOTLAND. 
 
 respect to others."* It may be proper to mention another privilege which 
 they possess, which is, that when any tax or cess is imposed, to which by 
 act of parliament the privileged class are subjected, the court have the 
 right of nominating certain members of the faculty of advocates and of the 
 society of writers to the signet, to meet with the stent masters appointed by 
 the magistrates, who take care that the privileged class shall not be 
 burdened beyond their just proportions. 
 
 More than a century elapsed before the magistrates of Edinburgh had 
 the courage to question the privileges of the college : but a poor's rate 
 having been projected, and an attempt also made to subject the privileged 
 to a proportional share of its burden along with the other inhabitants, 
 another question of liability arose, which being tried before the privileged 
 court, was of course decided in their own favour.f The whole privileges 
 enjoyed by the college were ratified by the treaty of Union ; but modem 
 acts of parliament have not always been so tender of their privileges as 
 their own acts of sederunt ; and Mr Ivory says, '* that their value has at 
 last become more nominal than real. "J 
 
 High Court op Justiciary — This court is composed of five of the 
 lords of session added to the lord justice-general and justice-clerk, of whom 
 the former, and in his absence, the lord justice-clerk, is the president. 
 The constitution of this court was settled by the act 1672, c. 16. At first 
 the judges were named for life, but afterwards they seem to have been 
 removable at the pleasure of the crown ; but the claim of right asserted 
 *' that the changing the nature of the judges' gifts, ad vitam aut culpam^ 
 into commissions durante bene placito, is contrary to law ;" and by the 
 commission in 1690, the crown did not reserve any such power. The quorum 
 of this court consists of three judges ; and no appeal lies from its decisions, 
 whether interlocutory or final, to the house of lords or any other court. 
 
 The court of justiciary had anciently justice ayres or circuits, for dis- 
 tributing justice in different parts of the kingdom, but these have fallen 
 into disuse; and in 1748, § it was enacted that circuit courts should be held 
 regularly twice a-year, on which footing they continued till the year 1828, 
 when an act of parliament ordered " an additional circuit court to be 
 held at Glasgow, for trying criminal causes during the recess of the court 
 of session in the end of December and beginning of January yearly." || 
 The act of 1672, divides the kingdom into three districts: the circuit 
 courts of the southern district are directed to be held at Jedburgh, Dum- 
 fries, and Ayr : the western at Stirling, Inverary, and Glasgow ; and the 
 northern at Perth, Aberdeen, and Inverness. The court must remain 
 
 * Bankton, B. IV. t Morrison's Diet. } Ivory's Forms of Process. 
 
 § 20 Geo. II. c. 43. || 9 Geo. IV. c. 29. 
 
COURTS OF LAW IN SCOTLAND. 469 
 
 at each place not less than three days ; and no business begun at either 
 of the places must be left unfinished. The spring circuit must be held 
 between the 12 th March and the 12 th May, and the autumnal in the 
 time of harvest. One judge may proceed to business in the absence of 
 his colleague, and when necessary, the circuit court may certify a case 
 commenced before it to the whole court of justiciary for consideration. 
 With regard to presentments and informations in order for trial before 
 the circuit courts, it is enacted,* that the sheriffs, magistrates of burghs, 
 justices of the peace, and other inferior judges, shall hold courts at their 
 usual places of sitting, on the 22d February and 2 2d July, yearly, to 
 receive information of criminal matters to be tried at the ensuing circuit, 
 and to transmit written abstracts of the accusations offered before them, 
 and the evidence by which they are supported, to the lord advocate, 
 and his deputies, forty days at least before the sittings of the respective 
 circuit courts, so that indictments may be raised in due time. This duty 
 has, however, in practice devolved on the sheriff, who is bound to make 
 immediate inquiry into the circumstances of every crime committed 
 within his sheriffdom, as soon as his fiscal or the injured party shall lay a 
 complaint before him, so that in general the offender is in custody or 
 under bail, and the precognition duly transmitted to the lord advocate, 
 before the days mentioned in the statute.f The jurisdiction act allows an 
 appeal to be taken to the circuit court of justiciary : 1st, In criminal 
 cases, against the judgment of an inferior judge, inferring neither .death 
 nor demembration ; and 2d, in civil cases, when the subject does not 
 exceed £12 sterling, (which is now extended to £25.)$ These appeals 
 must be lodged with the clerk of the inferior court within ten days after 
 the judgment has been pronounced : and the adverse party, or his agent, 
 and the inferior judge himself (where the appeal contains any conclusion 
 against him), must be served with a copy of the appeal fifteen days at 
 least before the sitting of the circuit court. But no such appeal is com- 
 petent, except a final decree of the inferior court. The circuit judges 
 must proceed in these causes summarily, and their decision is declared 
 final. In diflficult cases, however, they may report their proceedings to 
 the court of session or of justiciary, as the cause happens to be civil or 
 criminal. The jury court may hold sittings twice a-year, if necessary, at 
 the different circuit towns where the circuit court of justiciary meets, 
 twenty-one days' notice of such sittings being given by intimation on the 
 walls of the outer parliament house, and in the lobby of the court of 
 exchequer, and also on the door of the court-house of the circuit town, 
 
 * 8 Anne, c. 16. f 20 Geo. II., c.4S. | 54 Geo. III., c 67. 
 
470 COURTS OF LAW IN SCOTLAND. 
 
 and the door of the sheriff's court, in the other county towns of the 
 circuit.* 
 
 Jury Court. — This court was established in 1816, for the trial of 
 civil causes by jury.f Mr Ivory asserts, that " trial by jury was at one 
 time universally established in this country, and even prevailed in the courts 
 of civil judicature." " Our ancestors," he continues, " probably received it 
 at the same time, and from the same source, as their neighbours in England ; 
 and traces of it being to be found in the laws of all those nations which 
 adopted the feudal system, as in Germany, France, Italy, it is not unlikely 
 that all may have derived it from the same common origin." It must how- 
 ever be extremely difficult, if not altogether impossible, to discover. It has 
 been by some traced back to the classical times of the Greeks and Romans; 
 and in the judicial institutions of both x\thens and Rome, there is certainly 
 a very strong analogy, if not absolutely a perfect similarity, to the jury of 
 the present day. Dr Pettingal, whom Sir William Blackstone, a very 
 competent judge, characterizes as a learned writer, has written an essay 
 for the express purpose of establishing the classical origin of juries. And 
 so many and powerful are the resemblances which he points out between 
 them, the liKotarxi of the Greeks, and the judices selecti of the Romans^ 
 that one is almost tempted to acquiesce in his conclusions. 
 
 Among the Athenians there was the same relative connexion between 
 the Agp^jwj/, or presiding magistrate and the AtKotarui, that at present subsists 
 between our judges and jury. The ^iKxarxt " were chosen out of all the 
 different ranks of the people." " In order to prevent all suspicion of 
 corruption, they were chosen by lot. They tried all the principal causes, 
 and the majority carried the question. They were increased in number, 
 according to the importance of the cause. When they were impannelled, 
 they were enclosed by a rope, to prevent all attempts of corruption. 
 They were sworn on every cause to do justice, and determine according 
 to law ; and in matters before them, were allowed to follow their own 
 knowledge of the fact, and not always to be guided by evidence." " The 
 verdict was taken by the arclion or president of the court by ballot, and 
 declared by him ; after which they received their pay, because they con- 
 sisted, for the most part, of the common people.''^ 
 
 In the Roman courts, the prcetor, or qucesitor, or judex questionis, 
 (for all these names apply to the presiding magistrate under different 
 circumstances) exercised judicial functions nearly analogous to the 
 Athenian arclion. The judices selecti^ likewise, or jurati homines y 
 seem to have possessed much in common with the uv\ig ^(Kxarai, " and 
 were summoned by the prcetor to give tlieir verdict in criminal matters, 
 
 * BeU's Law Dictionary. Hume's Commentary, vol. IL f Bell's Diet. \ Pettinga], p. 69. 
 
COURTS OF LAW IN SCOTLAND. 471 
 
 in the same manner as our juries."* They were first returned by the 
 prmtor ; de decuria senatoria conscrihuntur. Then their names were 
 drawn by lot, till a certain number were completed : in urnam sortito 
 mittuntur, ut de plurihus necessarius numerus conjici posset. Then 
 the parties were allowed their challenges j next they struck what in Eng- 
 hnd is called a tales ; and, lastly, the judges fjudicesj, like our jury, 
 were sworn.f 
 
 Judging from the strength of these analogies, and combining them at 
 the same time with the other probabilities which are pointed out in Dr 
 Pettingal's essay, the conclusion at which he arrives, must be acknow- 
 ledged to be, at least, plausible, " that the hKocarn^iou of the Greeks, the 
 judicium of the Romans, and ihejury of the Saxons and English, were 
 in principle, intention, and effect, the same ; and that the English ^'e^r?/ 
 was an imitation of the Roma.n judiciu7ny brought into their northern 
 conquests, as the Judicium andjudices of the Romans were a transcript of 
 the hjcctffTYiQfou, or trial by jury among the Greeks." 
 
 But there are writers, on the other hand, who reject this hypothesis ; 
 and who, deducing the trial by jury from the natural progression of the 
 feudal system, maintain that there is good reason to believe that it arose 
 from the general situation of the Gothic nations.:}: In support of their 
 argument, these refer to the very early and universal establishment of this 
 form of trial among all those northern nations where feudal manners were 
 purest and most deeply rooted. Professor Millar of Glasgow, says, that 
 " every feudal superior was the natural judge of his own tenants and 
 vassals;" and so long, of course, " as his military retainers held their 
 benefices precariously, and when the other members of his barony were 
 either bondmen or merely tenants at will, he found himself under no re- 
 straint in deciding their differences, and in punishing their offences." 
 But in disputes among the superiors themselves, the rule of decision was 
 extremely different. " There was here no single person possessed of suf- 
 ficient authority to terminate the difference. The parties being independ- 
 ent of each other in point of property, and therefore masters of their own 
 conduct, were under no necessity, in a matter of that kind, of submitting 
 to the orders of any individual. They acted in the same manner with 
 respect to the exercise of their civil rights, as with relation to peace and 
 war. In both cases they considered themselves as free men, subject to no 
 restraints but such as arose from the nature of their confederacy, or were 
 imposed by their common consent."|| In this situation, the establishment 
 of tithings, hundreds, and shires which had primarily been intended for 
 the mutual defence of the inhabitants, was likewise rendered subservient 
 
 * Kennet's Rom. Ant. cited by Ivory. t Blackstone. 
 
 \ Millar's Historical View of the English Government. II Ibid, cited by Ivory. 
 
4i72 COURTS OF LAW IN SCOTLAND. 
 
 towards composing the animosities and differences among their own mem- 
 bers. " Roused by the danger of a quarrel which might be fatal to their 
 union, and which might render them an easy prey to their neiglibours, 
 they readily interposed, with all their influence, to reconcile the parties, 
 and to obsenethe rules of justice. A judicial power was thus gradually 
 assumed, by every tithing over the allodial or independent proprietors of 
 which it was composed. The hundred, in like manner, came to exercise 
 a power of determining the differences between the members of the several 
 tithings within the bounds of that larger district; as the meetings of the 
 shire established a similar jurisdiction over the different hundreds com- 
 prehended in that extensive territory. It is probable that every kind of 
 lawsuit was at first determined in full assembly, and by a plurality of 
 voices; but in the larger meetings of the hundred and tlie shire, it would 
 seem that when the authority of those tribunals had been confirmed by 
 custom, and their duty had become somewhat burdensome by the increase 
 of business, convenience introduced a practice of selecting a c^r^^m ?iu7n- 
 her of their members to assist their president in the determination of each 
 particular cause. Hence the origin of juries."* This appears to us to 
 be purely hypothetical, and by no means clear. Hume, also, in his history 
 of England, attempts to account for the origin of juries in a similar man- 
 ner, but he attributes the whole system of tithings, hundreds, and shires to 
 the inventive mind of the great Alfred; who, " that he might render the 
 execution of justice strict and regular," he says, " divided all England 
 into counties, these again he subdivided into Iiundreds, and the hundreds 
 into tithings;" '* nothing could be more popular and liberal than his plan 
 for ihe administration of justice. The borsholder summoned together his 
 whole decennary to assist him in deciding any lesser difference which oc- 
 curred among the members of this small community. In affairs of greater 
 moment, in appeals from the decennary, or in controversies arising be- 
 tween members of different decennaries, the cause was brouglit before the 
 hundred, which consisted of ten decennaries, or a hundred families of 
 freemen, and which was regularly assembled once in four weeks for the 
 decision of causes : their method of decision deserves io be noticed, as 
 heing the origin of juries ; an institution admirable in itself, and best 
 calculated for the preservation of liberty and the administration of justice 
 that ever was devised by the wit of man. Twelve freeholders were chosen, 
 who having sworn together with the hundreder, or presiding magistrate of 
 the division, to administer impartial justice, proceeded to the examination 
 of that cause which was to be submitted to their jurisdiction."f But 
 while it is thus attempted to account for the introduction of jury trials in 
 all those disputes which occurred between allodial and independent pro- 
 
 * Millar. t Hume's England. 
 
COURTS OF 1>AW IN SCOTLAND. 473 
 
 prietors, the same principle of explanation does not apply ^ith reference to 
 the disputes of their subordinate retainers. Another assumption, there- 
 fore, becomes necessarj to render the theory complete, and the ingenious 
 professor thus explains it : " In the progress of improrement,'* says he, 
 " the advancement of the vassals and peasants to greater security and free- 
 dom, and the separation of the trading people from the class of husband- 
 men, could not fail to limit the authority of the superior, and more 
 especially to affect the state of his jurisdiction. He was accordingly 
 obliged to relax his claim to their obedience, and to distribute justice 
 among them with greater moderation and circumspection. The retainers 
 of every feudal superior were bound not only to the performance of mili- 
 tary or other services, but also to assist him in maintaining good order and 
 tranquillity within his barony ; and, therefore, when any of them com- 
 plained of injustice from another, or was accused of a crime, the baron 
 found it expedient, instead of deciding by virtue of his own authority, to 
 call a number of his other vassals, and to proceed with their advice and 
 concurrence in trying the cause. This expedient was the most equitable 
 for the person concerned in the trial, as well as the best calculated for 
 giving weight to the decision. The assessors of the judges were the 
 •pares curios^ men of the same rank with one another, and with the par- 
 ties ; they were chosen occasionally, and varied in each cause, to avoid 
 burdening any individual more than his just proportion ; and they were 
 commonly selected from the neighbourhood of the place where the ac- 
 cusation or dispute had taken its rise, that from their private knowledge 
 they might be enabled to form a better judgment of the facts in question. 
 — Thus," concludes the professor, " the trial by inquest or jury, which had 
 formerly taken place in the tribunals of the shire and of the hundred, was 
 introduced into those of dk feudal barony."* 
 
 But from whatever source the trial by jury may Iiave sprung, whether 
 it originated with the Greeks, was copied by the Romans, and by them 
 introduced into their province of Britain, and thence adopted by oar an- 
 cestors, when the Romans abandoned the island, and which appears to us 
 to be the most rational mode of accounting for it, or whether it was the 
 natural offspring of the feudal system, there cannot be any doubt of its 
 early existence throughout the whole of these islands. As to England, 
 lord Somers has remarked, " of what date juries be, is the same as to say, 
 when was England first inhabited — altogether uncertain. But that this 
 antiquity here in England runs to and beyond the Norman conquest, 
 among the Danes, the Saxons, and the Britons, is most certain."f In 
 Scotland, again, as far back as the year 842, we find recorded among the 
 laws of Kenneth Macalpin the following remarkable evidence of the use 
 
 * 31illar, vol. i. p. 327—329. f A Guide to English Juries, 1682. 
 
 3 O 
 
4*74 COURTS OF LAW IN SCOTLAND. 
 
 of jury trial even at that time: " Capitalium insimulatos scptem 
 spectatafide viri, autnovem, undecim, tredecim, quindecim,aut numcro 
 majori, modo is impar fuerit^ ex sententia judicanto.''^ It is not 
 likely that this should have been the first enactment on the subject of 
 juries. The earlier juries seem to have had many features of distinction 
 from those of more modern date. Agreeably to the theory of professor 
 Millar, they were the freeholders, or those who owed suit in the respective 
 courts of the different jurisdictions. It may be observed, with reference 
 to these older juries, that " ilk soytour, before he is admitted and receaved 
 be the judge, sould be examinat in thrie courtes, gif he can mak recorde 
 of the courte fof ane proces deduced in courte^J or reporte ane suf- 
 ficient warde (interloquitor) or domeanent wardes or exceptiouns asked in 
 courte, or may or can not doe the samine." They also exercised in their 
 own persons the double character of witnesses and assessors; indeed it is 
 extremely questionable whether originally they were entitled to receive the 
 extraneous testimony of witnesses at all, or to decide upon any other evi- 
 dence than their own private knowledge. " The assize passand fordward, 
 to tak inquisition of the maiter; either the richt of the pairties is well 
 knawn to the assissours, or some of them hes knawledge thereof, and 
 some are ignorant, or all ignorant. Gif nane of them knawes the trueth, 
 and in the court testifies the samine be their grite eath, other persons sail 
 be chosen in their plaice, untill sic men be chosen quha knaws the veritie. 
 Bot gif some of thame knawes the trueth, and some knawes nocht, they 
 quha are ignorant being repelled, others sail be admitted be the court, 
 untill twelve men be found all agreeand togedder. All the assissours sail 
 sweare, that in that raaiter or debait vpon the decission quhere they are 
 chosen, they sail nocht laine nor conceale the trueth wiltingelie, nor na 
 falset say. It is requaired of thame quha sweares, to the eflfect they may 
 have knawledge of the maiter quhilk is in questione, tliat tliey knaw the 
 ueritie, he si^ht, or he hearing of themselves^ or he narration of their 
 fathers, or he sic sure tokens and arguments, to the quhilk they will 
 give, or may give, als grate faith as to their awin proper [doings or 
 sayings J y The following passages show that evidence by the extraneous 
 testimony of witnesses, and other proof, was at least in some cases cus- 
 tomary : " All friemen may prove his debt to the valoure of fourtie shil- 
 lings, by two witnesses quha heard and saw the samine, and swa be diverse 
 witness, according to the quantitie of the debt. Ane debt may not be 
 utherwise proven, bot be ane letter obligatour, or be confession of the 
 debtour in the courte before the justiciar or the schirriff. It is utherwise 
 before uther judges. And it is to be noted, that quhen the pairtie hes 
 named ane certain nomber of witnes, he may not thereafter eike nor paire 
 the number of the witnes.'* In their sentence they were altogether inde- 
 pendent of the judge ; they had even the power of removing him out of 
 
COURTS OF LAW IN SCOTLAND. 475 
 
 court altogether, " vntilltlie judgment be discussed by the soy tours of the 
 courte." It was indeed necessary that he should be present when sentence 
 was given, ** because it is trew that na judgement or sentence can be pro- 
 nunced except the judge be sittand in court." But the sentence itself 
 was entirely the suitor's own ; it was pronounced in their name, and by the 
 voice of one of their number j it " was not merely a verdict making way 
 for sentence by the judge, but was the interloquitor or judgment of court 
 on the whole matter referred." The judge's province seems only to have 
 been to preside in court, and " informe the soytours, gif they be ignorant 
 of the law, anent wardes (interloquitors) or decreits." By an old act " it 
 is statute that na man suld thoill judgement, or be judged be ane man of 
 an inferiour estaite, than his awen peir ; that is, an earle, be earles ; ane 
 baron, be barons ; ane vavassour, be vavassours ; ane burges, be burgesses. 
 Bot ane man of inferiour estaite may be judged be men of griter estaite." 
 The trial per pares ^ or by jury, continued to prevail in the whole civil 
 courts in Scotland, down to the institution of the old court of " the ses- 
 sion." We find traces of it in the burgh courts, where the assize was com- 
 posed of burgesses, or " the wyse and gude men of the burgh ;" in the 
 guild courts, where the brethren of the guild constituted a sort of assize ; 
 in the respective courts of the baron, the sheriff, the justiciar, the chamber- 
 lain, &c., in all of which the different classes of suitors or freeholders were 
 bound to give attendance. 
 
 After the establishment of " the session," 1425, and more especially 
 after the introduction of the more recent court of " the daily council " in 
 1503, jury trial in civil cases seems to have fallen into disuse. These 
 courts, indeed, were not a soil where it could at all be expected to prosper. 
 They had no class of persons who were properly analogous to the body of 
 suitors. " The commissioners were, indeed, part of the king's feudal 
 court of the parliament ; but they were delegated and detached from itj 
 they were assissours of his court ; but when separately constituted, they 
 sat in the character oi judges solely; they had no retainers of suit ; and, 
 according to the analogy and principle of the feudal judicature, the 
 materials of an inquest, as distinguished from a judge^ did not exist in 
 their courts."* Still, however, there are to be met with, even in these 
 courts, occasional instances of trial by jury; and in the more ancient and 
 ordinary jurisdictions of the county it undoubtedly kept its ground, and 
 continued to flourish in full perfection. It appears that, at a very early 
 period, trial by assize was quite common ; but that its existence in the 
 other courts was recognized and sanctioned by the judgments both of the 
 session and daily council. Spottiswood, in his Practics, quotes from a 
 " book of decreets and acts," beginning 17th May, 1469, and ending 
 22d May, 1470. He says, " in those days all acts of spoliation, intrusion, 
 * Ivory's Forms of Process, 275. 
 
^^^ COURTS OF LAW IN SCOTLAND. 
 
 and others of that nature, were precognosced by an inquest of twelve men 
 best knowing the land, whose declaration being presented to the judges 
 thereafter, they used to determine, as they did in the action betwixt Nicol 
 Forman of Hutton against George Kerr of Samuelston, anent the occupa- 
 tion of certain lands, which the said Nicol alleged to belong to him in pro- 
 perty. The parties, of their own consent, named twelve gentlemen ; 
 these promised to inform and give counsel to the lords in the said matter, 
 who being sworn, &c., and removed, returning gave their deliverance this 
 way : * We decree and deliver after our knowledge and understanding, 
 that in no time bygone we ever heard that the laird of Samuelston had 
 possession of the said lands, with manor, pasture, &c., or possessed before 
 the last year, and that Nicol and his predecessors have ever been in peace- 
 able possession of these lands, while the last year, &c. ;' after which deliver- 
 ance, the lords decerned Samuelston to desist therefrom in time coming." 
 
 It was not until the erection of the college of justice, and the establish- 
 ment of the present " council and session," that jury trials seem to have 
 materially suffered. Then, indeed, when the civil jurisdiction of the 
 .fusticiar was annihilated, the mode of procedure, which had been customary 
 in his court, was also laid aside. The new tribunal of the " council and 
 session" was a total stranger to juries; it has even been conjectured that 
 it was " made to consist of fifteen ordinary judges, the usual number of 
 jurymen in Scotland, with a view to supersede the use of jury trials."* 
 Whether the learned professor's imagination be correct or not, it is certain 
 that the example spread downwards ; and the gradual change which took 
 place " will not be surprising," says lord Kames, " when it is considered that 
 an appetite for power, as well as for imitating the manners of our superiors, 
 do not forsake us when we are made judges." But, perhaps a more sub- 
 stantial reason for the gradual disuse of jury trials in the inferior judica- 
 tures, is, that there could be no appeal to the court of session from any de- 
 cision proceeding on a verdict. According to the established law, a 
 judgment of fact pronounced by one assize could not be competently re- 
 versed, except by another ; and as, after the subversion of the justiciar, 
 there was no superior court of assize where this could be effected, the only 
 way of rendering an appeal competent was to drop the jury altogether. 
 The disuse of juries in the inferior courts was, however, extremely gradual. 
 Lord Kames, in his law tracts, refers " to a book of the sheriff's court of 
 Orkney, beginning 3d July, 1602, and ending 29th August, 1604," 
 which he discovered among the public records. " All the processes en- 
 grossed in this book, civil as well as criminal, are tried by juries." His 
 lordship also mentions " a book of the baron court of Crainshaw," in 
 which numerous instances of jury trial occur so late as 1632. It is pro- 
 
 * Milliti's IJistorical View. 
 
COURTS OF LAW IN SCOTLAND. 477 
 
 bable, were fartlier search to be instituted into similar sources, that addi- 
 tional discoveries might yet be made, and of a still more modern date. 
 Even after the disuse of juries had gone its utmost length in the civil 
 courts, there still remained a few peculiar cases of a civil character which 
 could only be disposed of by their verdict. Thus, " in all cases by which 
 the character of heir in land is determined — in all cases by which a person 
 of full age is deprived of his right of acting, and declared incapable from 
 furiosity or fatuity — in ascertaining the widow's rights to the lands of her 
 husband, when there has been no settlement — and in striking the fiars of 
 the different counties" — the verdict of a jury still continued to be indis- 
 pensable. With these exceptions, however, trial by jury in civil matters 
 fell into such utter and complete neglect, that, in the process of time, it 
 came almost to be a question whether it had ever existed in Scotland 
 at all. 
 
 The system of judicial procedure, which sprang up in the court of ses- 
 sion on the ruins of trial by jury, has, of course, like every other system 
 of an equally wide sphere of application, numerous defects ; and among 
 these the three following have always been placed in the most prominent 
 situation, viz. : the abuse of taking proofs by commission, and reducing 
 them to writing ; the great delay unavoidably arising out of the form of 
 process ; and the frequent uncertainty of the ground of decision, from 
 there not being a sufficient separation in the judgment, between the law 
 and the fact j both being disposed of at once, and on a complicated and 
 cumulo view of the whole case. 
 
 Some have maintained that these evils are not necessarily inherent in 
 the system itself ; and may, in a great measure, be corrected, without any 
 radical or essential change in the constitution of the court. Others, again, 
 have thought that they are not so easily to be eradicated j and various 
 plans have been, at different times, proposed, to effect the necessary re- 
 form. Among the rest, the revival of jury trial has been repeatedly 
 brought forward. It was, in particular, strongly urged by the late lord 
 Swinton, in a very elaborate and valuable pamphlet published in 1789. It 
 was again more recently proposed by lord Grenville, in his speech, in 1807, 
 on the proposal for a reform in the court of session j and it has, at length, 
 been actually carried into practice, under an act of parliament.* The 
 change that has thus been effected, does not carry back the trial by jury 
 to i\\Q same high ground where it once stood. It does not restore it in 
 every case, and under every jurisdiction ; and that it does not, is perhaps 
 to be considered as a real improvement. It was a mere partial experi- 
 ment; the act passed on 2d May, 1815,t being only to be in force for 
 seven years, in order to discover how far jury trial, in civil cases, may 
 
 *55 Geo. III., c. 42. t 55 Geo. III., c. 42. 
 
478 
 
 COURTS OF LAW IN SCOTLAND. 
 
 Egain be introduced in this country with advantage; and its operation was 
 confined to such cases " wherein matters of fact are to be proved," as the 
 judge admiral, the lords ordinary in the outer-house, or the judges of 
 either of the inner chambers of the court of session may think it expedi- 
 ent to have investigated in this manner. It was likewise declared " lawful 
 for the house of lords, in remitting to the court of session any cause whicii 
 is now, or shall hereafter come before the said house by appeal from the 
 said court of session, to instruct the division of the said court of session 
 to which the cause is remitted, to order and direct such issue or issues as 
 the said house of lords shall think fit, to be transmitted for the purpose of 
 being tried by a jury." So that the jury court, properly speaking, is to 
 be deemed not so much a separate and independent judicature, as a sort 
 of permanent commission for leading and deciding on those proofs, which 
 used formerly to be taken by a private commission, and reported to the 
 respective courts in writing. 
 
 The judges of the jury court are three in number; consisting of " one 
 chief judge, and two other judges, called ' the lords commissioners of the 
 jury court in civil causes,' and hold their offices ad vitam, if the present, 
 or any other act under which they shall be commissioners shall so long 
 continue, or ad culpam.^''^ Originally their appointment was by com- 
 mission under the great seal. *' In case of future vacancies, the same are 
 ordered to be filled up by a letter from his majesty, his heirs, and suc- 
 cessors, directed to the president and senators of the college of justice/'f 
 And it is enacted, " that the persons so to be nominated shall be senators 
 of the college of justice, or barons of the court of exchequer in Scotland; 
 and that they shall be, at the time of their nomination, qualified to be 
 senators of the college of justice."^ In everything relating to the jury, 
 as well as the mode of trial, the constitution and practice of this court were 
 framed as nearly on the English model as the principles and tenets of 
 Scottish law would permit. The most prominent feature of resemblance 
 is the number of jurors, and the unanimity required in their verdict. 
 Why an even number, such as twelve, should have been fixed upon, or 
 why it should have been deemed necessary that these twelve should agree 
 in their opinion, is not at first sight apparent ; and there is some- 
 thing so extremely absurd in the very idea of a compulsatory agreement, 
 that we may well conclude with professor Christian, the learned com- 
 mentator on Sir William Blackstone, that " the unanimity of twelve 
 men, so repugnant to all experience of human conduct, passions, and 
 understandings, could hardly in any age have been introduced into 
 practice by a deliberate act of the legislature. "§ It is not improbable, 
 that both the requisite of unanimity, and the limitation in the number 
 
 ♦ 55 Geo. I II., c. 42, § 10. f Ibid. % Ibid. ? Black. Comm. iii. 370, note 2a 
 
COURTS OF LAW IN SCOTLAND. 4,79 
 
 of jurors, are both to be traced to the same source. A writer of con- 
 siderable pretensions, who flourished towards the close of the seven- 
 teenth century, has, with the utmost gravity and seriousness, attempted 
 to explain the difficulty in this way : " In analogy," says he, " of late 
 the jury is reduced to the number of twelve, like as the prophets were 
 twelve, to foretell the truth ; the apostles twelve, to preach the truth ; 
 the discoverers twelve, sent into Canaan, to seek and report the truth ; 
 and the stones twelve, that the heavenly Hierusalem is built on : — and as 
 the judges were twelve anciently, to try and determine matters of law ; 
 and always .when there is any waging of law, there must be twelve to swear 
 in it: and also, as for matters of state, there were formerly twelve 
 counsellors of state. And any thing now, which any jury can be said to 
 do, must have the joint consent of twelve, else it is in construction of law, 
 not the doing of the jury, but of private persons, and void."* The true 
 explanation, however, appears to be, that although, by the original con- 
 stitution of the courts of assize, and so long as the proper feudal suitors 
 continued to be the assizers, a majority was in the general case entitled to 
 decide ; yet it was always under this qualification, that there should be 
 twelve at least to concur in the verdict. In every case, therefore, " if 
 twelve only appeared, it followed as a necessary consequence, that to act 
 with effect, they must have been unanimous. And as less than twelve, if 
 twelve or more were present, could pronounce no effective verdict, when 
 twelve only were sworn, their unanimity became indispensable." " The 
 grand assize^'' says professor Christian, " might have consisted of more 
 than twelve, yet the verdict must have been given by twelve or more ; and 
 if twelve did not agree, the assize was afforced, that is, others were added, 
 till twelve did concur. This, however, was a majority, and not unanimity. 
 K grand jury may consist of any number from twelve to twenty- three 
 inclusive, but a presentment must not be made by less than twelve. The 
 same is also true of an inquisition before the coroner. In the high court 
 of parliament, and the court of the lord high steward, a peer may be con- 
 victed by the greater number ; yet there can be no conviction, unless the 
 greater number consists at least of twelve. Under a commission of lunacy, 
 the jury is seventeen, but twelve must join in the verdict. A jury upon 
 a writ of inquiry may be more than twelve."f The same train of illustration 
 may be followed out in the law authorities of Scotland. Thus we have 
 the afTorcement of the assize, the requisite of " twelve at the least being 
 of ane mind and concord." 
 
 The unanimous verdict of twelve^ seems to have prevailed at one time 
 in this country, as well as in England. In the books of the Regiam 
 
 * Lord Somers' Guide to Eng, Juries. Professor Chiisti.m's Notes to Black. Comm. 
 
480 COURTS OF LAW IN SCOTLAND. 
 
 Majestatem, and otlier ancient authorities, there occur frequent proofs of 
 this. Thus it is declared, that " twelve loyall men, neighbours, or of the 
 court, quha sail sweare the grite eath, in presence of the pairties, that 
 they sail declare quhilk of them hes best richt in their petition." — " Gif 
 some says for ane pairty, and some for ane other, others sail be admitted, 
 vntill twelve at the least be found of ane mind and concord, for either of 
 the pairties." Likewise, under the briefs of Mortancestrie, &c. the assize 
 was usually of twelve, " all agreeand togedder?'' But Glassford seems 
 to think, that this may have chiefly been in those forms of proceeding 
 which our ancestors borrowed from the English. Generally speaking, 
 however, the practice in this country was rather indeterminate. From 
 the old law of Kenneth Macalpine, the assize might consist of " novem^ 
 undecim^ tredecim, quindecim, aut numero majori modo is impar 
 fucrit :'' and hence, we may conclude, a verdict by majority was the 
 consequence. The recognition of minority was by eight. In some of tlie 
 briefs still issuable from chancery, the number of tlie inquest is specified; 
 in others it is left indefinite. By a retour of service in 1271, from the 
 sheriffdom of Dumbarton, on a brief of chancery, it appears that the 
 inquest was composed of sixteen persons. In criminal pursuits, the 
 number of assizers varied in ancient times from nine to seventeen.* The 
 assize for trial of wilful error of assizers, was twenty-five. The burgesses, 
 who, from twelve to sixteen in number formed, with the chamberlain, tlie 
 ancient court of the four burghs, may also be considered in truth an assizG 
 And the number appointed by the act of 1303, -j- to " be set upon the falsing 
 of dooms" before the parliament, was from thirty to forty.J The usual 
 number, however, seems to have been finally fixed at fifteen, which is the 
 number of the assize in the present court of justiciary. It is likewise tlie 
 number in serving all the modern briefs. § Erskine says, that in the 
 serving of heirs, " the inquest hath always consisted of an odd number, 
 that an equality of voices might not make the verdict doubtful, sometimes 
 seventeen, sometimes thirteen ; but it appears that, by tlie later practice, 
 the number has been fixed to fifteen, as far back as Craig's time." That 
 a verdict by majority, came latterly to be the custom, appears from a 
 passage in Balfour ; where it is said to have been expressly decided, " that 
 " gif the persounis of inquest beis discrepant, contraire unto uther, and 
 equally divydit in their deliverance and determinatioun, except only the chan- 
 cillar and odd man of the inquiest, quha refusis to give his vote, alledgand 
 that nane of the saidis pairties hes justly decernit in the maiter, and that 
 he in his conscience is not perswadit nor inclynit to ather of tlieir 
 deliverances j in this cais he may be chargit and compellit be the lordis 
 
 * Hume, Trial for Crimes. f Ch. 95. 
 
 \ Glassford. § liook III. 
 
COURTS OF LAW IN SCOTLAND. 481 
 
 letteris, to deliver with the ane half of the assise, or with the uther, nol» 
 withstanding his alledgeance foirsaid."* 
 
 There are differences of opinion among legal men respecting the merits 
 of trial by jury. While some bestow the most animated eulogies on that 
 system, others again allege, that it is attended with some disadvantages ; 
 but it is evident that its superiority is great ; and the late lord Meadow- 
 bank has stated some of the principal advantages attending that system to 
 be, 1. " That the parole evidence of facts is taken in the presence of those 
 who decide on it ; and that the trouble and expense of much discussion in 
 review, is saved to the country; and at the same time sufficient satisfaction 
 given to the parties and the public, as to the due consideration of causes. 
 2. That practitioners are under the necessity of preparing causes, where 
 fact is concerned, for being decided at one trial; and the facilities of 
 reconsideration are in a great measure cut off. 3. That an intercourse 
 is created between courts of justice and persons of ability in the agricultural, 
 manufacturing, and commercial lines of life, from which great benefits 
 have been derived in England, both to the improvement of the law, and 
 better administration of justice, in the adaptation of practice to the existing 
 state of aifairs, and in producing a general knowledge throughout the 
 country of that practice, and satisfaction with, and confidence in, the 
 exertions of the judges for the discharge of their duty." " It was mainly 
 by this means, that Lord Mansfield was enabled to create a law-merchant 
 for an age of advanced civilization ; and to bequeath to his country that 
 great production of his unrivalled talents as a judge and a master in the 
 science of jurisprudence." To these advantages it may be added, that in 
 no way so well as by jury trial, is that way to be attained between the law 
 and the fact, which is so necessary to the precision and distinctness of the 
 judgment, and which goes so far to fix legal precedents on a sound, 
 uniform, and settled basis. It has also been urged that juries are, even in 
 themselves, better qualified to decide on questions of fact and evidence, 
 than judges who have made the law their study. But to this conclusion 
 it is difidcult to assent. And neither does there appear in civil matters 
 any good reason for that extreme jealousy of permanent judges, which is 
 harboured by many, and which is very strongly portrayed in the following 
 quaint and amusing quotation : " If judges had power of both determining 
 the matter of fact, and also the matter of law, as must, if there were no 
 juries, their latitude of erring, &c., must then be the greater, and their 
 doing wrong or mischief might be the more, inasmuch as they might wrong 
 one then in both the fact and law ; and their encouragement so to do 
 would be improved, since then it must be harder to detect them, as 
 whether erred in the fact, or in the law, or partly in both, like as it is easier 
 
 * Balfour, p. 288. 
 3 P 
 
^-SS COURTS OF LAW IN SCOTLAND. 
 
 seeking in a bush than a wood ; and as it is said, occasio facit fureni^ 
 opportunity makes many a whore. But were judges presumed saints, 
 and never so upright, &c., yet who can imagine, but at a trial, where 
 witnesses are all examined, and evidence all given, the jury being so 
 many persons, and probably knowing something of the matter before, they 
 may, all assisting one another, better observe, remember, and judge upon 
 the whole matter, than any one or two, &c. others, though called judges ? 
 Certainly one may do more with help than without : so the proverb is, 
 Ne Hercules quidem contra duos; oculi plus oculo vident . Two to 
 one is odds at foot-ball ; and the fewer may the more easily deceive, or 
 be deceived. It's natural for man to err. None's without faults ; and 
 the surest foot may slip."* 
 
 Several acts of sederunt were passed, and a code of regulations were 
 framed, detailing the forms of procedure in this court in conformity 
 with the statute of 2d May, 1815 ; and agreeably to these the business 
 was conducted until the 19th May, 1819, when the act was passed 
 to amend an act for facilitating the administration of justice in Scotland, 
 by extending the trial by jury to civil causes ;f which having been attended 
 with beneficial effects to the administration of justice : and it being found 
 expedient that further provision should be made to extend and regulate 
 trial by jury in civil causes, and that the said act should be in part altered 
 and amended, and the court to be thereby created made a permanent part 
 of the judicial establishment of Scotland. Be it therefore enacted, that in 
 all processes raised in the outer house of the court of session by ordinary 
 action, or otherwise, on account of injuries to the person, whether real 
 or verbal, as assault or battery, libel or defamation, or on account of any 
 injuries to movables, or to lands, where the title is not in question ; or on 
 account of breach of promise of marriage, seduction or adultery, or any 
 action founded on delinquency, or quasi delinquency of any kind, when 
 the conclusion shall be for damages or expenses only ; the lord ordinary 
 of the outer house, before whom such processes shall be enrolled, do 
 remit, and is hereby authorized and required, after defences are lodged, 
 to remit, the whole process and productions forthwith to the jury court in 
 civil causes ; which last mentioned court is authorized and required, 
 according to rules and regulations which the said court and the court of 
 session are hereinafter empowered to make, to settle an issue or issues, 
 and to try the same by a jury to be summoned and impannelled under the 
 provisions now in force, or hereinafter enacted for that purpose. The 
 36th section of the act declared, J that the jury court in civil causes. 
 
 * Guide to English Juries, by Lord Somers. Ivory's Forms of Process, 8ic. vol. 
 t 55 Geo. III., c. 42. | 69 Geo. III., c. 35. sec. 1. 
 
COURTS OF JU AW IN SCOTLAND. 483 
 
 witli all the officers belonging thereto, and the lord chief commissioner 
 thereof, slmll remain in all time coming a part of the judicial establish- 
 ment of Scotland, and of the college of justice therein, subject to such 
 regulations, for the better administration of justice, as may hereafter be 
 made by parliament.* In addition to declaring the jury court permanent^ 
 the act also appointed additional clerks, and amply provided for the 
 erection of buildings for its accommodation. 
 
 The court of session passed several acts of sederunt on this occasion. 
 " The lords of council and session, and the lords commissioners of the 
 jury court, being regularly and duly assembled, and having taken into 
 consideration the act of sederunt relating to the trial of civil causes by 
 iury, passed on the 9th December 1815— the rules and orders of the jury 
 court, made in pursuance of the 29th section of the said act of sederunt — 
 the acts of sederunt of the 10th February 1816, 6th March 1817, 9th 
 July 1817, 13th January 1819, 30th November 1819, and 19th February 
 1820, together with all the appendices thereto ; found it expedient to 
 repeal the same ; and they accordingly did by act of sederunt of date the 
 3d July 1823, repeal them in all their parts and promsions ^ and did 
 substitute the regulations therein specified, and the practical forms there- 
 unto annexed in appendix in tlieir stead." 
 
 On the 5th July 1825, the sphere of action of the jury court was still 
 farther enlarged, by the passing of an act for the better regulation of the 
 forms of process in the courts of law in Scotland.f By the 28th section 
 of which it is enacted, that the following actions, whether originating in 
 the court of session, or in the court of admiralty, shall be held as causes 
 appropriate to the jury court ; and for the purpose of being discussed 
 and determined in that court, shall be remitted at once to that court, in 
 the following manner : — All actions on account of injury to the person, 
 whether real or verbal, as assault and battery, libel or defamation : all 
 actions on account of any injury to movables, injury to land, where the 
 title is not in question : all actions on account of breach of promise of 
 marriage, seduction, or adulteiy : all actions founded on delinquency, or 
 quasi delinquency of any kind, where the conclusion shall be for damages 
 only, or expenses: all actions on the responsibility of shipmasters and 
 owners, carriers by land or water, innkeepers or stablers, for the safe 
 custody of goods or commodities, horses, money, clothes, jewels, and other 
 articles ; and, in general, all actions grounded on the principle of the 
 edict, Nautce^ caupones^ stahularii ; all actions brought for nuisance j 
 all actions for reduction on the head of furiosity and idiocy, facility and 
 lesion, or on force and fear; all actions on policies of insurance, whether 
 
 * 59 Geo. 111., cap. 35- sic 36. f 6 Geo. IV,, c. 120. 
 
484 
 
 COURTS OF LAW IN SCOTLAND. 
 
 for maritime, fire, or life insurance ; all actions on charter parties and 
 bills of lading ; all actions for freight ; all actions on contracts for the 
 carriage of goods by land or water ; all actions for the wages of masters 
 and mariners of ships or vessels. 
 
 By the original jury court act of 1815, and even by that of 1819, a 
 process could not be remitted to the jury court, until not only appearance 
 was made for the defender, but also defences lodged. The act of 1819 
 bears, that " the lord ordinary of the outer house, before whom such 
 processes shall be enrolled, is authorized and required, after defences 
 are lodged, to remit the whole process and productions forthwith to the 
 jury court." But as in the class of causes, the record was, by the last 
 statute,* and the corresponding acts of sederunt, appointed to be prepared 
 in the jury court for trial or decision, in a similar manner with the 
 record in ordinary processes in the court of session, it became no longer 
 necessary that the defences should be previously lodged in the court of 
 session : and it was declared sufficient that appearance shall he made. 
 When any of these causes was called in the course of the regulation roll, it 
 was accordingly enacted :f 1. " That if no appearance shall be made when 
 the cause is called, decree shall be pronounced in absence, according to 
 the present practice : but, 2. If appearance shall he made for the 
 defender, or as soon as the defender shall be reponed against the decree 
 in absence, the lord ordinary shall forthwith remit the cause to the jury 
 court." In the case, therefore, of appearance made when the cause is 
 called, the interlocutor to be pronounced will be a simple remit to the 
 jury court, conceived in these or similar terms: — 
 
 " The lord ordinary remits this cause to the jury courts 
 The process will be forthwith transmitted to the clerks of that court by 
 the clerk to the process in the court of session, and the proceedings 
 thereafter go on before the jury court ; for it is provided by the act of 
 sederunt regarding the jury court, *' that from and after the 11th day of 
 November 1825, in every case sent to the jury court, the process with all 
 the productions and proceedings in the clerk's hands, and the receipts of 
 such parts thereof as may be borrowed, shall be held and taken from the 
 date of such interlocutor, to be subject to the order, and to be under the 
 direction and authority of the jury court, and shall be forthwith trans- 
 mitted to the jury court officer, by the clerk of session or admiralty, as 
 the case may be. "J And farther, " that the rules as to borrowing and 
 returning processes, shall take place in the jury court as in the court of 
 session." § 
 
 * 6 Geo. IV., c. 120. t Sec. 29. 1 Sec. 62. S Sec. 45. 
 
COURTS OF LAW IN SCOTLAND. 485 
 
 If no appearance is made, and decree in absence is pronounced, the 
 interlocutor is : — 
 
 " Decerns against the defender in absence, conform to the conclusions 
 of the libel." 
 
 The statute enjoins the lord ordinary and the court to dispose of the 
 point of expenses at same time with the merits ; but expenses being 
 concluded for in the summons, are necessarily carried by the general 
 interlocutor ; and any special finding on this head is not only unnecessary, 
 but may occasion trouble and delay in modifying the expenses. The 
 pursuer having obtained decreet in absence, or in respect of no defences, 
 should forthwith lodge his account of expenses in process, and get the 
 same taxed by the auditor. Monday is the day usually set apart by the 
 auditor for taxing accounts of expenses in decrees in absence. It is 
 enacted, " that it shall not be lawful to extract any decree for the random 
 sum of expenses concluded for in the summons."* But a report upon 
 the pursuer's account of expenses by the auditor, shall be a sufficient 
 warrant and authority to the extractor to fill up the amount of expenses 
 to be awarded against the defenders in the extracted decree, without the 
 said report being brought under the consideration of the lord ordinary, 
 unless by his own direction or that of the auditor, or on the motion of any 
 party interested. 
 
 The statute did not empower the lord ordinary to review his judg- 
 ment : but in this case the act of sederunt declared, " that a party wishing 
 to be reponed against a decree in absence, may apply to the inner house, 
 by a short note, accompanied with the defences, or other paper required 
 by the state of the process, merely setting forth the interlocutor or decreet 
 in absence, when the court shall repone him on payment of the previous 
 costs, and shall remit the cause to the ordinary, to be prepared and 
 proceeded in as accords."! And again : " Whereas it is enacted by 
 section 29 of the statute, that if decree in absence has been pronounced 
 in the actions enumerated in section 28, as soon as the defender shall be 
 reponed, the lord ordinary shall forthwith remit the cause to the jury 
 court : but as no provision has been made for reponing in the outer house 
 a defender against a decree in absence, it is hereby enacted and declared, 
 that when a defender has been reponed upon presenting a note to the inner 
 house, and the cause has been remitted back to the lord ordinary, the lord 
 ordinary shall then remit the cause to the jury court."t 
 
 At this stage, therefore, all the jury court processes, enumerated and 
 comprehended under this head, were necessarily remitted by the lord ordi- 
 nary to the jury court without farther discussion in the court of session.-^ 
 
 » 1 & 2 Geo. 1 V. , c. 33. t Act of Sederunt, sect. 5. 
 
 \ Act of Scd. sect, 66. § Bcveiidgc's Forms of Process, vol. i. p. 28G, el seq. 
 
48(f COURTS OF LAW IN SCOTLAND. 
 
 The jury court was composed of a lord chief commissioner, legally 
 qualified to hold the office of a senator of the college of justice, and of 
 two other judges or commissioners, who were at the same time judges 
 of the court of session j* and by the statute, the king could appoint 
 two judges of the court of session, to be additional commissioners of the 
 jury court, should any considerable increase of business have arisen in it. 
 The court had, besides, a suitable establishment of clerks and other officers, 
 calculated for the discharge of the duties devolved upon it. There were 
 three clerks, appointed by the king, who were either advocates or writers 
 to the signet of three years' standing. The lord chief commissioner was 
 also empowered to appoint a clerk during his pleasure, wlio kept the rolls 
 of court, and performed the other duties connected tlierewith : and the 
 king might, if necessary, have appointed a fourth clerk, and three assistant 
 clerks or closet keepers. There were four principal clerks, and two 
 assistant clerks connected with this court, besides the lord chief commis- 
 sioner's clerk. The principal clerk's duty was to prepare and adjust the 
 issues with the counsel and agents for the parties, and to make the pre- 
 parations necessary for trial ; and one at least of the principal clerks 
 attended each sitting of the court. There were no fees exigible by the 
 clerks of the jury court : the principal clerks had fixed salaries of £600, 
 and the assistants, of £'300, per annum.f 
 
 But the act which established the jury court as a trial, extended only 
 to the year 1830 ; and therefore a new act was passed, uniting the jury 
 court with the ordinary jurisdiction of the court of session, with which it 
 is now permanently united: the following is the preamble and extract 
 from the act, so far as it respects the jury court : — 
 
 Whereas, an act was passed in the reign of his majesty George IIL, " extending the 
 trial by jury to civil causes ;"|^ by which act certain commissioners were appointed for the 
 trial of such causes, and certain regulations made in regard to such trials -. and whereas 
 another act was passed, for still farther " extending the trial by jury to civil causes :"§ and 
 whereas another act was passed in the reign of his late majesty George IV., •' for better 
 j-egulating the forms of processes, "|| &c., by which last act certain provisions were made 
 relative to the constitution of the jury court, and which provisions are declared to continue 
 and be in force until the thirtieth day of June 1830, and from thence to the end of the next 
 session of parliament; and it is further provided by the said last recited act, that it should 
 be lawful for his majesty to appoint such persons as he should think fit, to make all inquiries 
 as they should be directed by instructions from his majesty into the forms of proceedings in 
 trials of civil causes by jury in Scotland, and to report whether these forms may be im- 
 proved, and at what time, and in what manner, the union of the benefit of jui-y trials in civil 
 causes with the jurisdiction of the court of session, may be best accomplished : and whereas, 
 pursuant to the said last recited act, his late majesty did, by an instrument under his ro3aJ 
 sign manual, appoint certain persons to make the inquiries, &c., as more particularly 
 specified in instructions annexed to the said instrument: and whereas the said comnu'ssionens 
 made a report upon the subject matters, which report has been laid before botli houses of 
 
 * 6 Geo, I V. c. 120. f Bell's Law Diet, Ivory and Bereridge's Forms of Process. 
 
 % 55 Geo. 111., c. i2. § 59 Geo, III., c. 35. || 6 Geo. IV., c, 120. 
 
COURTS OF LAW IN SCOTLAND. 487 
 
 parliament: and whereas it is expedient, that the said recited acts sliould be alteretl, 
 amended, and continued in certain parts, and that provision should be made for uniting the 
 benefits of jury trial in civil causes with the ordinary jurisdiction of the court of session : 
 and that in so doing, advantage should be taken of the knowledge and experience of the 
 present lord chief commissioner and of the other lords commissioners of the jury court ; and 
 whereas it is also expedient that certain other* alterations and reductions should take place 
 in the judicial establishments of Scotland, be it enacted, that from and after the fifth day o( 
 October next, (1830,) the jurisdiction for trial by jury in civil causes, shall be united with 
 and form part of the ordinary administration of justice in the court of session : and the trial 
 of causes by jury shall take place in the court of session, as hereinafter directed. 
 
 I L From and after such union, all causes and issues, which, if they had occurred before 
 the passing of this act, must have been tried in the jury court, shall be tried by jury in the 
 court of session. 
 
 III. From the period of the union, the lords president of the two divisions shall respec- 
 tively try by juries all issues arising out of causes depending in these divisions ; and may 
 otherwise respectively discharge all duties. previously assigned to the lord chief commissioner: 
 it shall continue to be competent to the said lord commissioner to perform all such duties: 
 and farther, that for the space of three years from and after the time when such union shall 
 take place, there shall be present and form a component part of the court, upon all occasions 
 when either of the lords president shall respectively try by jury any issue arising out of a 
 civil rause, either the lord chief commissioner of the jury court, or one of the judges of the 
 court of session, who at the time of the union shall have held the office of one of the lords 
 commissioners of the jury court. 
 
 IX. Trials by jury may proceed at all such times, as well during session as in the 
 vacation, as the division of the court before which the cause stands enrolled shall appoint : 
 and all causes remaining untried, and entered as ready for trial at the termination of the 
 winter or summer sessions, or at the commencement of the Christmas recess, shall be tried 
 at sittings of the court to be held immediately after these periods respectively, excepting 
 only such causes as on the motion of any party, the court may think fit to postpone. 
 
 XL All causes or issues appointed to be tried before every circuit court, shall and may 
 be so tried before one or more of the judges of the court of justiciary when upon circuit : 
 and at all trials before any circuit court, the jury shall be taken from the lists prepared for 
 the trial of criminal oflences : provided always, that it shall be competent to either division 
 of the court of session, if in their judgment it shall be considered necessary, to direct any 
 causes or issues to be tried by any other judge or judges of the court of session at any circuit 
 town ; and if necessary for the trial of the same, to cause jurymen to be summoned in the 
 manner provided by the before cited acts. 
 
 XVII. In the event of the death or resignation of the lord commissioner, or of any of 
 the other lords commissioners of the jury court, no successor shall be appointed to any such 
 judge or judges, as commissioner of the jury court. 
 
 XVIII. From and after the termination of the present existing interest in the office of 
 lord justice general, that office shall devolve upon, and remain united with, the office of lord 
 president of the court of session, who shall perform the duties thereof as presiding judge in 
 the court of justiciary •, and the salary attached to the office of lord justice general shall cease. 
 
 XIX. When the office of lord justice general shall have devolved upon the lord president 
 of the court of session, and when he shall deem it expedient to be present at any circuit 
 court, it shall be lawful for him to despatch business in such court, whether any other judge 
 or judges of the court of justiciary be or be not present. 
 
 XX. When vacancies shall occur among tlie permanent lords ordinary of the court of 
 session, whether by death, resignation, or removal into one of the divisions of the court of 
 session, such vacancies shall not be filled up until the number of permanent lords ordinary 
 
 * See court of admiralty. 
 
*8d COURTS OF LAW IN SCOTLAND. 
 
 shall be reduced to five, so that the total number of judges composing tlie court of session, 
 including the lord president and the lord justice clerk, shall be limited to thirteen.* 
 
 The Teind Court — At the Reformation, the rapacity of the nobles 
 and barons, (or freeholders,) left the reformed clergy entirely destitute ; 
 and several expedients were tried for providing them with stipends, but 
 which having all failed, a commission of parliament was appointed in 
 1617, to plant churches, and modify stipends out of the tithes of every 
 parish within the kingdom. Other commissions were afterwards granted, 
 with powers to unite or disjoin parishes, to value and sell tithes.f The 
 act of 1617, c. 3, proceeds on the narrative, " that there be divers kirks 
 within this kingdom not planted (provided) with ministers, wherethrow 
 ignorance and atheisme abound among the people ; and that many of 
 those that are planted have no sufficient living or maintenance appointed 
 to them, whereby the ministers are kept in poverty and contempt, and 
 cannot fruitfully travel in their charges :" therefore certain commissioners 
 were named, with power, " out of the teinds of every parochin (pai*ish) 
 to appoint and assign at their discretion, ane perpetual local stipend to tlie 
 ministers present and to come." The commissioners consisted of eiglit 
 prelates, eight nobles, eight barons or freeholders, and eight burgesses, in 
 all thirty-two J five of each of the estates were requisite to form a quorum.^ 
 The last commission was authorized by act 1693, c. 23; and by an act in 
 1707, c. 9, its powers were transferred to the judges of the court of 
 session, who, since that time, have continued to exercise the powers thus 
 conferred on them as a parliamentary commission, under the name of the 
 
 TEIND COURT, or, the COMMISSION FOR PLANTATION OF KIRKS AND 
 VALUATION OF TEINDS.§ 
 
 Before the reformation, the clergy of Scotland had acquired a very large 
 and extensive property in land, by donations, legacies, and mortifications 
 made by laymen to monasteries, abbeys, and other religious houses. The 
 tithes and patronages of many churches, had also been conferred on these 
 several religious institutions. 
 
 At the reformation, the temporalities of such benefices as had not 
 been feued out in virtue of the statute of 1503, c. 91, and subsequent 
 acts, were annexed to the crown by the act 1587, c. 29. Nevertheless 
 many of these lands and estates thus annexed were conferred by king 
 James VI., on deserving public servants, and also on his favourites. 
 Under most of these grants were comprehended the tithes and patronages; 
 and the grantees, thus acquiring rights to the tithes by a written titles 
 were sometimes called lords of erection^ but more commonly, titulars of 
 the tithes. It became necessary, however, to make a legal provision for 
 
 * 1 William IV., cap. 69, dated 23 July, 1830. + Bell's Law Diet. 
 
 \ Sir J. Connel on Tithes, vol. i. p. 111. § Bell's Law Diet. 
 
COURTS OF LAW IN SCOTLAND. 489 
 
 the protestant ministers: and accordingly, in 1561, it was ordained by an 
 act of council, that the third of all benefices should be applied to the 
 maintenance of the ministers in tlie first place, and the residue to the 
 support of the queen's household establishment : which assumption of the 
 thirds of the benefices, was ratified by act of parliament in 1567, c. 10. 
 A commission, under the name of the commission of parliament for 
 modifying stipends to ministers, was accordingly granted by the crown, 
 in 1561, to several of the nobility and superintendents. This commission 
 met annually in the month of November, at Edinburgh, and continued to 
 act until the bishops were restored in the year 1606. On their taking 
 possession of the full powers of the episcopal office, a new commission was 
 granted by statute 1617, c. 3, to eight bishops, eight lords, eight barons, 
 and eight burgesses of the three estates of parliament, to take cognizance 
 of the following particulars : — 
 
 I. To modify a particular stipend ovi of Die tithes, to all ministers of churches not already 
 provided with stipends; and also the ministers of such churches whose stipends did not 
 amount to five hundred merks Scots in money, or five chalders of victual, (as the minimum^) 
 besides manse and glebe. 
 
 II. To unite two or more parishes into one, provided the tithes of one of such parishes 
 were not sufficient to pay the stipend, in which case the patrons were to have the right of 
 presentation alternately. 
 
 in. When the tithes of the parish did not amount to five hundred merks, and where an 
 union was inconvenient, to modify the whole tithes of the parish to the minister, besides 
 manse and glebe. 
 
 IV. In making these provisions, to pay no regard to tacksmen, patrons, or others pre- 
 tending right to the tithes: but as a recompense to the tacksman for the loss occasioned by 
 such modification, to grant them a prorogation of their tacks. 
 
 V. The maximum of stipend to be so provided, was limited to one thousand merks Scots, 
 or ten chalders of victual, £65:ll:lsrf. sterling. 
 
 This commission was only to remain in force till Lammas, that is, 
 August 1618 ; and in its execution, the commissioners were empowered 
 to summon titulars of the tithes, as also patrons, tacksmen, and all 
 others pretending to have right thereto, to compel them to produce and 
 submit their title deeds and writings to their inspection and judgment ; 
 and whose sentence was declared to be final. 
 
 Another commission was granted by statute 1621, c. 5, with similar 
 powers to the last, but limited in duration to the tenth of January 1622. 
 And farther, with power also to divide parishes when too large : but 
 with this proviso, that the consent of the patron, tacksmen, and other 
 parties having interest, should be had, both to the separating and dividing 
 of parishes. 
 
 On his accession to the throne, Charles I. revoked all the grants of 
 church lands which had been in some cases inconsiderately granted away 
 by his father James VI. ; and in 1626, he directed a summons of reduction 
 of these grants to be legally executed. In consequence of the grantees 
 applying to the king for confirmation, he instituted several commissions 
 
 3 Q 
 
490 COURTS OF LAW IN SCOTLAND, 
 
 for settling these rather intricate affairs ; and the several parties interested 
 also submitted their respective rights to his majesty, on which, in 1628 
 and 1629, the king pronounced four several decreets-arhitral, which 
 were afterwards recorded in parliament, and greatly facilitated their 
 arrangement. In 1627, the commission of surrenders and teinds, was 
 granted under tlie great seal, to certain clergy, nobility, and barons, who 
 were empowered to treat with the proprietors, concerning the erection 
 and temporalities of henefices^ teinds^ parsonage and vicarage, and 
 certain other matters and things, which his majesty alleged were the 
 property of the crown or principality, and had been unlawfully acquired 
 and possessed by his subjects." This commission was renewed, with slight 
 variations on the 9th July and 16th November 1630, and 7th January 
 1631. Under the king's warrant, these commissioners gave directions, 
 in 1627, to the several presbyteries, to make choice of the most fit and 
 indifferent persons within their respective presbyteries to be sub-commis- 
 sioners for trying the valuation of tithes upon the report of these nomina- 
 tions, by the several presbyteries, commissions were issued by the general 
 commission to the persons so named, and the powers granted to these 
 sub-commissioners, were : — 
 
 I. To try and inform themselves, by all lawful means and ways, of the 
 true worth of the lands of each parish in stock and teind, where the land 
 hath been bruicked in stock and teind in time bygone, and what the lands 
 pay at present — what they have paid in time bygone — and what they may 
 pay of constant rent of stock and teind in time coming ; and that they 
 report to ihe general commission the just and true worth thereof, in con- 
 stant rent to their judgment. 
 
 II. And also to inform themselves, by all lawful means, of the constant 
 rent and worth of the teinds, both great and small, when the teinds have 
 been drawn severally from the stock hy the titular, or his tacksman, not 
 being heritors for the space of seven years, within fifteen years preceding 
 the date of the commission. 
 
 III. They were also empowered, in case the heritor should desire if, 
 to try the rent of the land, along with the teind, according to the true 
 and constant rent of the land. 
 
 Under this sub-commission, and these excellent regulations, a vast 
 number of parishes were valued ; and the reports of the most of these 
 valuations by the sub- commissioners were confirmed and approved of by 
 the general commission, and on the rule of payment of the teind (tithe) 
 where they are extant at this day. By the statute 1633, c. 15, it is 
 ordained, " that his majesty shall have an annuity of six per cent, out of 
 all the teinds of the kingdom, excepting, 
 
 1 . The teinds then paid to the bishops j 
 
COURTS OF LAW IN SCOTLAND. 49l 
 
 9. Teinds paid to ministers, in name of stipend, for servinp^ the 
 cure ; 
 
 3. And to colleges, hospitals, and other pious uses.* 
 
 This annuity was granted by king Charles I. to James Livingston, a 
 groom of the bedchamber, in security for a sum of £ 10,000 sterling, and 
 which right was afterwards acquired by the earl of Loudon. King Charles 
 L stopped by warrant the levying of these annuities under this grant, 
 since which time the liing''s annuity has not been levied. The proprietors 
 and tenants of land in Scotland, have great reason to regard the memory 
 of Charles I. with great thankfulness for the wise regulations which he 
 adopted for the easy method of paying the established ministers their legal 
 tithes ; and the clergy of the present day are amply provided for, and 
 saved from all angry collision with the occupiers of the soil. 
 
 It is ordained by the act of parliament 1633, c. 17, " That in time 
 coming, there shall he no teind sheaves, or other teinds, parsonage or 
 vicarage, led and drawn, or led within the 'kingdom : but that each 
 heritor or liferenter of lands shall have the leading and drawing of their 
 own teind, the same being first truly and lawfully valued, and the paying 
 therefor the price specified in the act, in case they be willing to pay for 
 the same : or otherwise, paying therefor the rate of the teind settled by 
 the act." And it is thereby also declared, " that the just and true rate of 
 teinds is, and shall be, the fifth part of the constant rent which such land 
 payeth in stock and teind, where the same are yaluedjointlg : and where 
 the teinds are valued apart and severally, that the just rate thereof is, and 
 shall be, such as the same is already, or shall be hereafter, valued and 
 proved, before the said commissioners and sub- commissioners, deducting 
 the fifth part thereof for the ease of the heritors." " Reserving always 
 to such as shall find themselves enormously hurt by the leading of the said 
 valuations, to pursue for rectifying of the same, before the commissioners 
 appointed by his majesty and estates for that effect." And it is farther 
 declared, " That the price of all teinds which may he sold, consisting 
 either in money, victual, or other bodies of goods, is and shall be ruled 
 and estimated according to nine years' purchase ; the prices of victual, and 
 other bodies of goods, whereof the teind consists, being reducted in money, 
 according to the worth and price of the victual and goods in each part of 
 the county to which the same is and shall be prized and estimated by his 
 majesty's commissioners appointed, or to be appointed to that effect." 
 
 The act, cap. 9, of the same parliament, was in unison with the fore- 
 going, and the commissioners were thereby empowered: — 
 
 " To prosecute and follow forth the valuation of whatsoever teinds, parsonage, or vicarage, 
 OS wera then unvalued. To receive the reports of the sub-commissioners appointed withio 
 
 * Stair, B. II. tit. 8. sec. 13. 
 
4^92 COURTS OF LAW IN SCOTLAND. 
 
 ilk ))resbytery, of the valuation of whatsoever teinds led and deduced before tliem, accoiding 
 to the tenor of the sulj-commissioners' decreet to that effect : and to allow or disallow the 
 same, according as the same shall be found agreeable or disagreeable, from the tenor of their 
 sub-commissions. 
 
 " The commissioners are also empowered to rectify whatsoever valuations, led or to be led, 
 to the enorm prejudice of the titulars, and to the hurt and detriment of the kirk, and pre- 
 judice of the minister's maintenance and provision, or of his majesty's annuity. 
 
 " And to set down the prices of saleable teinds, according to the worth thereof, in each 
 part of the county where the same grew and are bred. 
 
 " And also to set down such good and ample security, as may stand by law, both for the 
 buyers of teinds, to the effect the titulars may be fully denuded in their favour; and also for 
 security to the titulars and sellers of the price due, to be paid to them for the said teinds. 
 
 " And also to set down the security in favour of the titular and of the ministers, so far as 
 concerns the maintenance assigned to them, for good, thankful, and timeous payment of the 
 rate of teind, where the same are not, or cannot be sold. 
 
 " And to discuss and determine all questions which may arise betwixt the titulars and 
 heritors, anent the price of teinds, according to the nature and quality of the rights to be 
 sold, whether the same be heritable or temporary, and to proportionate the price accordingly. 
 
 •' And also to divide the price of teinds betwixt heritors and liferenters thereof; and 
 betwixt titulars, tacksmen, and others, who have several and distinct rights to the said teinds 
 saleable, according to the qualities of their rights. 
 
 " And also to cause the titulars who sell the teinds to exhibit their rights and titles to the 
 effect that they may be lawfully denuded thereof, in favour of the said heritors and liferenters 
 respectively, without prejudice to his majesty's annuity ; and to decide and determine in all 
 other points which may concern the leading and drawing of teinds, and buying of the same, 
 or payment of the rate thereof. 
 
 *' And it is also provided, that the vicarages of each kirk, being a several benefice and 
 title fi-om the pursuer, shall be severally valued." 
 
 They were besides empowered to modify competent stipends to 
 ministers out of the tithes not under eiglit chalders of victual, or 800 
 uierks Scots money, unless when, upon special reason given, the commis- 
 sioners should, in their discretion adjudge a less sum : and to divide and 
 unite parishes, &c. 
 
 These commissions were followed in succession by others, all directed 
 towards the same object, and evincing the strongest desire on the part of 
 the crown for the comfort and respectability of the parochial clergy. By 
 the statute 1661, c. 61, it was declared, that all valuations, acts and 
 decrees, concluded by virtue of any commission granted by the *' pretended 
 parliaments of 1640, 1641, and downwards to the Restoration, should 
 stand valid, notwithstanding the general and rescissory acts," passed in 
 that parliament, excepting such decrees and sentences in favour of minis- 
 ters for their stipends, or for dividing, uniting, annexing or building of 
 kirks, as might be found to have been "• unjust or exhorbitant ;" the 
 determination of which was referred (o the commissioners, who were 
 empowered to annul or alter such decrees, conform to the laws and 
 practice preceding 1649. 
 
 The price payable to titulars by heritors for the teinds of their lands 
 was fixed, by previous commissions, at nine years' purchase of the free 
 teind j but no rule had been laid down as to the price to be paid to patrons. 
 
COURTS OF LAW IN SCOTLAND. 4t93 
 
 By the act 1690, c. 23, however, all teinds not before that time lieritably 
 disponed, are declared to belong to the patron of the parish, but subject 
 always to tacks formerly granted and prorogations thereof, as also to 
 ministers' stipends and all other burdens to which the teinds were formerly 
 subjected. And the patron is obliged to sell each heritor the tithes of his 
 lands at six years' purchase, according as the same shall be valued by the 
 commissioners. And this benefit of the act was by a subsequent statute, 
 1693, c. 25, extended to the patrons of all patronages and other benefices 
 without exception. 
 
 At the Revolution, prelacy, and " all superiority of any ofliicer in the 
 church above presbyters," was abolished; and in the following year, 1689, 
 the presbyterian form of church government was established, " as being 
 more agreeable to the inclinations of the people :"* at which time the 
 teinds belonging to the bishops reverted to the crown, jure cor once ^ and 
 consequently the tithes and other property of the bishops are not saleable; 
 but leases of them are from time to time granted by the crown to indivi- 
 duals, upon payment of a suitable sum as a grassum, or fine, at the end 
 of every nineteen or twenty-one years, and a small yearly teind, tack-duly, 
 or rent. 
 
 The power of all these commissions was vested by queen Anne in the 
 lords of session as the high commission of teinds, by the following act, 
 which was partly occasioned by the destruction by fire of a considerable 
 portion of the warrants of decrees, and other records of the various teind 
 commissions. The act notices this circumstance in the preamble, and in 
 the sequel provides for supplying the defect thus occasioned : — 
 
 An act nnent plantation of kirks and valuation of teinds, 21st February, 1707. 
 
 Our sovereign lady and the estates of parliament, considering the great prejudice that 
 does redound to this nation from the want of an established and fixed judicature, which may 
 cognosce and determine in such causes and things as by former parliaments were referred to 
 their commission for plantation of kirks and valuation of teinds, and through the loss of the 
 registers of that court, which were burnt in the late fire that happened in this place, there- 
 fore her majesty and the said estates, do hereby empower, authorize, and appoint the lords 
 of council and session, to judge, cognosce, and determine, in all affairs and causes whatsoever, 
 which by the laws and acts of parliament of this kingdom, were formerly referred to, and 
 did pertain and belong to the jurisdiction and cognizance of the commissions formerly 
 appointed for that effect, as fully and freely in all respects as the said lords do, or may do, in 
 other civil causes. 
 
 And particularly, but without prejudice to the generality foresaid, to determine in all valua- 
 tions and sales of teinds, to grant augmentations of ministers' stipends, prorogations of tacks of 
 teinds, to disjoin too large parishes, to erect and build new churches, to annex and dismember 
 churches as they shall think fit, conform to the rules laid down, and powers granted by the 19th 
 act of the parliament 1633, the 23d and 30th acts of the parliament 1690, and the 24th act of the 
 parliament 1693, in so far as the same stand unrepealed. The transporting of kirks, disjoining 
 of too large paroches,or erecting and building of new kirks, being always with the consent of the 
 heritors, of three parts out of four at least of the valuation of the paroch, whereof the kirk is 
 
 * Connd on Tithes. 
 
494 COURTS OF LAW IN SCOTLAND. 
 
 craved to be transported, or the paroch to be disjoined, and new kirks to be erected and built, 
 the minister in the meantime to serve the cure in the present kirk of the paroch. 
 
 And for that effect, appoint the said lords to meet and sit each Wednesday in the after- 
 noon, during the time of session, and to call and discuss the causes summarily, conform to 
 a roll to be made up and kept of the same. 
 
 And for supplying the lost registers of that court, her majesty and the said estates, do 
 hereby appoint and ordain, that any authentic extracts from the said records be brought in, 
 and being presented to the said lords, be recorded in a particular register : and that the 
 said extracts so brought in be kept by the said lord clerk-register and his deputes, clerks to 
 be appointed by him, for that effect, as their warrants, which shall be held and repute as 
 valid and authentic as the principal warrants themselves, if the same were yet extant-, and 
 the lord register and his deputies are ordained to give a new extract gratis, to any person 
 that shall give in an old extract, immediately upon delivery thereof • and that extracts from 
 these new records, shall make tlie like faith in judgment and outwith the same, as the 
 extracts from the old registers of the commission were wont to do, before the same were burnt. 
 
 And further, empowering the said lords, upon such evidence and adminicles as they 
 shall see cause to make up the tenor of such decree in manner above mentioned, whereof 
 extracts are amissing, and the registers lost in the said fire : declaring hereby that the lord 
 register and his deputes to be appointed by him, as said is, shall have the sole and only power 
 and privilege of raising and subscribing of the summonses and diligences relating to the atlairs 
 above written, the same always bearing her majesty's common signet as formerlj-. 
 
 And also declares, that the macers of privy council, who by their gifts did attend and 
 officiate before the said commission of parliament, shall continue to attend and officiate 
 before the said lords of session in the manner committed to them by this act, as they were in 
 use to do before the commission, and none else. 
 
 And lastly, it is hereby declared, that this present act and commission, shall be subject, 
 nevertheless to such regulations and alterations as shall be made by the parliament of 
 Great Britain. 
 
 On tlie 30th June, 1808, the following act passed the imperial parlia- 
 ment, for defining and regulating the powers of the commission of teinds, 
 in augmenting and modifying the stipends of the clergy of Scotland, whicli 
 made several important alterations. 
 
 I. Whereas, by an act of the parliament of Scotland, in tlie year 1707, entitled, Act 
 anent plantation of kirks and valuation of teinds, her majesty queen Amie, and the estates 
 of parliament, empowered, authorized, and appointed, the lords of council and session, to 
 judge, cognosce, and determine, in all affairs and causes which by the laws and acts of the 
 parliament of Scotland, had been referred and did pertain and belong to the jurisdiction and 
 cognizance of commissioners formerly appointed for that effect, as fully and freely in all 
 respects, as the said lords did or might do in other civil causes : and certain powers men- 
 tioned therein, were particularly granted by the said act : and it was thereby declared, that 
 the said act and commission should be subject nevertheless, to such regulations and alterations 
 as should be made by the parliament of Great Britain. And whereas it is expedient, that 
 the powers of the said lords of council and session, as commissioners aforesaid, should in some 
 respects be defined and regulated, may it therefore please your majesty, that it may be 
 enacted, and be it enacted by the king's most excellent majesty, by and with the advice and 
 consent of the lords spiritual and temporal, and commons, in this present parliament 
 assembled, and by the authority of the same, that from and after the pcissing of this act, it 
 shall not be competent to the said lords of session and council, as commissioners aforesjiid, 
 except as after specified, to augment or modify any stipend which shall have been aug- 
 mented or modified prior to the passing of this act, until the expiration of fifteen years 
 from and after the date of the last final decreet of modification of such stipend. 
 
 II. No stipend which shall be augmented or modified by a decree after the passing of 
 this act, shall be again augmented or modified until the expiration of twenty years from and 
 
COURTS OF LAW IN SCOTLAND. 495 
 
 after the date of such decree of modification thereof; nor shall any such stipend be aug- 
 mented or modified at any future period, until the expiration oi twenty years from and after 
 the date of the last decree of modification thereof respectively. 
 
 in. Provided always, that in all processes of augmentation or modification, in which the 
 days of compearance had elapsed, and which shall have been called in court prior to the 
 I2th day of March 1S08, and which shall continue to depend before the said lords of council 
 and session as commissioners aforesaid, at or after the passing of this act, it shall be compe- 
 tent to the pursuer either to suspend the same until fifteen years shah have elapsed from the 
 date of the last preceding decree of modification, or to prosecute the same to a conclusion 
 forthwith : and that it shall be competent to the said lords of council and session, as com- 
 missioners aforesaid, either to grant or to refuse an augmentation in any such cases, or to 
 pronounce, or to refuse to pronounce, a decree of modification therein; provided always, 
 that if the stipend, or any such depending case, shall be augmented or modified by a decree, 
 after the passing of this act, the same shall not be again augmented or modified until the 
 expiration of twenty years from and after the date of such decree of modification thereof : 
 nor shall any such stipend be augmented or modified at any future period until the expira- 
 tion of twenty years from and after the date of the last decree of modification thereof 
 respectively. 
 
 IV. Provided farther, that this act shall not be deemed or taken to extend to any case, 
 where a decree of modification has been pronounced prior to the passing of this act, and 
 now depends either upon a petition to the commissioners, or an appeal to the house of lords. 
 
 V. Provided, that in the case last mentioned, no such stipend can be again augmented for 
 fifteen years after the date of the modification. 
 
 VI. And in case of the said stipend being augmented at the expiration of the said fifteen 
 years, it shall not be afterwards augmented or modified for twenty years. 
 
 VII. The commissioners may, in every case, refuse to augment or modify any stipend, 
 either on account of there being no legal fund of augmentation, or on account of the cir- 
 cumstances of the case : and it shall be competent for any party to propone all relevant 
 objections in any case whatsoever where an augmentation or modification shall be applied 
 for, and which objections shall be determined by the said lords of council and session as 
 commissioners, as heretofore. 
 
 VIII. Every stipend augmented hereafter, shall be wholly modified in grain or victual, 
 even although part of it shall have been previously modified in money, or though part of 
 the teinds shall be money teind, unless when it shall appear necessary, on account of the state 
 of the teinds, or on account of the interest of the benefice, or on account of the nature of the 
 articles other than grain or victual, which have been in use to be delivered in kind as 
 victual, that a part of the stipend should be modified, not in grain or victual, but in money, 
 or such other articles as have been in use to be delivered. 
 
 IX. In case of every decree of modification, it shall and may be competent for the said 
 lords of council and session, to convert the said money stipend or money teind into grain or 
 victual, according to the tiar prices of the kind or description of grain or victual into which 
 the same shall have been converted according to an average for seven years preceding tho 
 date of the modification. 
 
 X. Where the parish shall not be altogether in the same county, or where no fiars appli- 
 cable to the kind of grain modified shall be struck, the average of the said seven years shall 
 be taken from the fiar prices of two or more of the adjoining counties, t 
 
 XI. No minister shall hereafter receive any part of his stipend in grain, but the value 
 thereof shall be paid to him in money, according to the fiar prices for that year for which it 
 is payable. 
 
 XII. Where no fiar prices shall have been struck for the county, or where the parish is 
 situated in more than one county, the commissioners may direct the stipend to be paid 
 according to the fiar prices of any two or more adjoining counties. 
 
 XIII. Provided that whore there shall be different rates of annual fiar prices for any 
 county or stewartry struck in virtue of authority from the sheriff^ or steward, the said 
 
4»96 COURTS OF LAW IN SCOTLAND. 
 
 conversion from money into victual, and from grain or victual into monej', shall be made 
 according to the highest annual fiar prices. 
 
 XIV. Any heritor may still, as heretofore, surrender his valued teind, instead of 
 subjecting his lands to the stipend located upon them. 
 
 XV. The commissioners of teinds, nine being a quorum, shall meet at ten o'clock, upon 
 the second Wednesday which shall happen after the meeting of the court of session for 
 despatch of business in November and May, in every year respectively : and once a^fortnight, 
 on Wednesday, during the sitting of the court of session, and at such other times, and on 
 such other days, in the months of December, January, and March, not being any of the 
 days upon which the court of session meets, as the said lords of council and session shall find 
 necessary or proper for executing the powers committed to them by this act. 
 
 XVI. The said commissioners may make rules and regulations for abridging the forms 
 and expenses of citing heritors and others, and for executing the business committed to them 
 with as much expedition, and as little expense, as possible. 
 
 XVII. And in order to guard against collusion, and also in order that no processes of 
 augmentation or for modification of stipends, shall be raised on the ground of alleged 
 collusion, every minister insisting in the process of augmentation, besides citing the heritors, 
 shall also cite the moderator and clerk of his presbytery, and furnish them. with a statement 
 of the amount of his present stipend, and the addition to it which he means to crave, in 
 order that the presbytery, if they shall judge it proper, may appear as parties to the process ; 
 and in the event of the presbytery entering no appearance, the minister shall forthwith 
 transmit to the moderator or clerk of his presbytery, a certified copy of the interlocutor 
 pronounced by the court : and it shall be competent to the presbytery, within five months 
 after such interlocutor, to enter an appearance and to show, if they shall see cause, that the 
 decree of modification pronounced is collusive and prejudicial to the benefice : provided that 
 if the presbytery shall enter an appearance in such process, it shall be competent to the court 
 to subject the minister insisting in such process, in the whole, or any part of the expenses of 
 process incurred by the presbytery. 
 
 XVIII. And further, all the powers given and granted by the said in part recited act, to 
 the commissioners thereby appointed, shall remain and continue in force, and receive such 
 and the like eflect as they do at present, excepting in so far as they are altered or repealed 
 by this act.* 
 
 The sixteenth section of the foregoing act empowers the lords of council 
 and session " to make rules and regulations for abridging the forms and 
 expense," &c.j and in conformity they passed an act of sederunt of 5th 
 July, 1809, of which the following is an abstract, containing many useful 
 regulations still in force, for the use of the teind court. By all former 
 acts, a power of making rules by acts of sederunt, was vested in the court 
 of session, many of which remain in force, but the whole proceedings are 
 now regulated by the following : — 
 
 The lords, &c., do enact, Imo, that from and after the 12th day of July, 1S09, it shall not 
 be necessary for the pursuer of any process of augmentation, modification, and locality, to 
 cite the titular or tacksman of the teinds, or heritors, liferenters, or other intromitters with 
 the teinds, in the manner or upon the inducicn heretofore required : but that as soon as a 
 summons of augmentation, modification, and locality, is raised and signeted, it shall be 
 competent to the pursuer to cause cite the titulars and tacksmen of the teinds, heritors, and 
 liferenters, and all others having or pretending to have interest in the teinds of the parish, 
 by the precentor giving public notice from his desk, immediately before the congregation is 
 dismissed from the forenoon service, that the minister of the parish has raised a summons 
 of augmentation of his stipend, which will be called in court on Wednesday, being the 
 day of next to come, not being less than six weeks after the date of the first 
 
 * 48 Geo. III.,c. 138. 
 
COURTS OF LAW IN SCOTLAND. ' 497 
 
 notice; and that this notice shall be repeated for three several Sundays, at the time above 
 mentioned, and a certificate by the precentor, that such public notice has been given upon 
 three several days in presence of two of the parishioners, who shall subscribe as witnesses, 
 shall be forthwith transmitted by him to the pursuer's agent. A notice in writing, in like 
 terms, shall also be affixed to the most patent door of the church by a messenger at arms, 
 or a constable, on the same day when the first notice is given from the precentor's desk, and 
 such messenger or constable shall retain a certificate subscribed by himself and two witnesses, 
 that such notice has been affixed by him. The pursuer shall also cause notice to be inserted 
 three several days in the Edinburgh Evening Courant, the Caledonian Mercury, and Edin- 
 burgh Advertiser, that he h>:s raised a summons of augmentation, modification, and locality, 
 which will be called in court on Wednesday, being the day of , not being 
 
 less than six weeks from the date of the first advertisement. 
 
 The 7node of citation and iuducice above mentioned, shall be deemed sufficient, although one 
 or more of the defenders shall be a pupil or minor, or out of the Jcingdom, at the time such 
 citation shall he given. 
 
 When it is necessary to call the officers of state for his majesty's interest, it shall be done 
 in the manner that has hitherto been in use, upon the induciod of six weeks. 
 
 And it is further enacted, that it shall be a sufficient citation to the moderator and clerk 
 of the presbj tery, that the pursuer himself shall write to the said moderator and clerk, in 
 terms of the 17th section of the statute, provided always that such letters shall be inserted in 
 the presbytery record one month before the summons is called in court ; and such certificate 
 by the precentor of the parish, and messenger or constable, with the notices in the newspapers 
 above mentioned, execution of citation to the officers of state, and certificate from the 
 presbytery clerk, that the pursuer has written to the moderator and clerk of presbytery in 
 terms of the statute, and that the letters are recorded in the presbytery books, shall be held 
 as sufficient citation to all parties. 
 
 When any of the defenders die during the dependance of the process, his heir may be 
 called by a diligence in the manner and upon the inducia hitherto used ; but such diligence 
 may be executed either by a messenger at arms or by a constable ; and when it is necessary to 
 waken a process, it must be done by asummonsof wakening, in which all parties having inte- 
 rest must be called in the same manner and on the same inducice, as in the original process. 
 
 2ndo, The pursuer of any process of augmentation, shall as soon as the summons is signeted, 
 lodge with the clerk of court a note, stating the amount of the stipend, distinguishing how 
 much is paid in money, and how much in victual, and in what species of victual, and the 
 measure by which it is paid ; and also stating the amount of the communion elements. The 
 pursuer must also, at the same time, produce a rental of the parish, distinguishing the rent 
 of each heritor. 
 
 ^lio, As soon as the summons is called in court, the pursuer may enrol it, and all concerned 
 will be allowed to see the summons and writings therewith produced, in the clerk's hands, 
 for fourteen days. After the elapse of the term allowed for seeing, the pursuer may enrol 
 the cause, virhen a proof will be allowed of the rental of minors' lands ; and the heritors, 
 who are major, will be held as confessed upon the rental, unless one or more of them shall 
 take a day to depone, in which case a day shall be assigned to the whole heritors who ai-e 
 major, to depone on the rental : and one act and commission shall be extracted for the 
 whole, upon which any of the heritors or their factors may depone, and upon which a proof 
 of the rent of minors' lands may be led : such act and commission to be extracted at the 
 expense of the heritors deponing: but the rental of minors' lands inay be proved by a certificate 
 thereof under the hand of any one of the tutors or curators of such minor, or of their factor, 
 without the necessity of extracting any act and commission. 
 
 4:to, When the day assigned for deponing and proving, shall have elapsed, the pursuer 
 may again enrol the cause, and pray that the term may be circumduced, and that a remit 
 shall be made to an ordinary to prepare a scheme of the rental, either according to the rental 
 which the minister gave out along with his summons, if there has been no proof, or according 
 to the proof which has been led, and the certificates of rentals and decrees of valuation 
 produced. 
 
 3 11 
 
^98 COURTS OF LAW IN SCOTLAND. 
 
 5/0, When the scheme of the proven rental is prepared, the cause niaj be eiiroHed, in 
 order that parties may be heard upon the merits. When the court grants an augmentation, 
 the cause will be remitted to an ordinary, to prepare a locality, and to report. The pursuer 
 of the augmentation may, immediately after such remit, enrol the cause before the lord 
 ordinary, and crave his lordship to ordain the heritors to produce their rights to their teinds, 
 if they have any, in the hands of the clerk, within a time to be specified in the interlocutor, 
 not being less than three months from the date thereof: with certification, that after the 
 elapse of that time, a remit shall be made to the clerk to prepare a scheme of locality, eillier 
 according to the proven rental, in case no rights are produced, or according to the rights 
 and interests which are produced by the heritors : and that this scheme so prepared shall 
 immediately be approved by the lord ordinary, and aflerwards by the courts as an interim 
 scheme, according to which the minister's stipend shall be paid, aye and until a final locality 
 shall be settled, and the minister furnished by the common agent with an extracted decree 
 at the expense of the heritore, for which he is entitled to take credit in his account. The 
 lord ordinary shall at the same time ordain the heritors or their agents, to meet for the 
 j>urpose of naming a person to be suggested to the lord ordinary as common agent far 
 suggesting the locality. A short notice of this interlocutor shall be inserted in the Edin- 
 burgh livening Courant, Caledonian Mercury, and Advertiser, tlve expense thereof to be 
 paid by the common agent out of the general fund. 
 
 Gto, And in order to enable the court to oirry the said act into execution, the sherifi' and 
 Stewart clerk of every sheriffdom and stewartry is hereby required within three months from 
 the date hereof, to transmit to the teind clerk a certificate of the fiarsfor the last seven years, 
 distinguishing the fiju-s of each year: and every sheriff and Stewart clerk is farther required 
 to transmit to the teind clerk a certificate of the fiars of every year in all time coming, witiiin 
 fourteen days after they shall have been struck, as they shall be answerable. 
 
 In processes of augmentation, modification, and LOCALITY 
 
 OF STIPEND — In the teind court, all summonses and diligences, cum 
 processu, are signed by the clerk of that court, and not by a writer to the 
 signet; but they must pass the signet. The summons of augmentation 
 consists of two branches ; the first directed to ascertaining the suitable 
 quantum of stipend to be paid to the minister; the other, the shares or 
 proportions thereof, which shall be paid out of each heritor's tithes. The 
 summons also concludes for a suitable sum for communion-element money, 
 which is modified at same time with the stipend, and varies according to 
 the circumstances of the parish; being in general £8 : 6 : 8<:?., or £lO 
 sterling, and in some extraordinary cases even more. Formerly the 
 summons was issued blank, and only filled up when it was about to be 
 filed in court. But the act of sederunt of 12th November 1825, enacts, 
 " that no summons shall hereafter be issued blank, but shall be fully 
 libelled before it passes the signet : and that the pursuer shall also state, 
 as accurately as he can in the summons, the number of inhabitants, the 
 precise extent of the parish, and other circumstances on which he founds, 
 in support of his claim. 
 
 Stipend. — Formerly the stipend consisted partly in money, and partly 
 in victual delivered in kind. If the teinds of the several heritors happened 
 to be valued partly in both, the augmentation was sometimes so granted 
 as to exhaust the whole valued victual, and then a certain sum in money 
 
COURTS OF LAW IN SCOTLAND. 4Jn) 
 
 %vas added to complete the amount. Bui by the act, already cited p. 493, 
 it will be seen in what manner the stipend is at present paid. 
 
 The strong desire which well disposed men have to avoid altercation, 
 and personal disputes, was thought sometimes to operate too much with a 
 minister when seeking an augmentation: and in consequence, compromises, 
 and dividing of differences adverse to the interests of the succeeding 
 incumbents at least, frequently followed. To check this, the 17th section 
 of the same act* gives directions for citing the moderator and clerk of the 
 presbytery of the bounds, and directs the minister to transmit to them a 
 certified copy of the interlocutor of augmentation. 
 
 It was long a debateable point, whether after a regular decree of 
 modification had been granted and extracted, it was afterwards competent 
 to raise a new process, libelling a change of times and circumstances, and 
 crave an augmentation. When its competency was at last declared, as 
 well as that the judgments of the teind court were subject, like those of 
 the court of session, to reviero, hy appeal to the house of peers, — the 
 frequent applications at short intervals, to augment stipends, rendered 
 some limitation necessary; accordingly the first section of the above act, 
 provided a remedy. And by the seventh section, the commissioners may in 
 every case refuse to augment or modify any stipend, either on account of 
 there being no legal fund of augmentation, or of the circumstances of the 
 case. The expense of the process of augmentation is always borne by the 
 minister himself, unless the circumstances are very special indeed, whether 
 the heritors oppose the augmentation or not. But the heritors pay their 
 own counsel and agent, and are at the sole expense of the after process 
 of locality. Formerly, when the adjustment of the final scheme of 
 locality was very long protracted, it was usual for the minister, at his own 
 expense, to extract his decree of modification, and to compel the payment 
 of his augmented stipend, by charging a few of the larger heritors, who 
 from the extent of their free teind, could neither object to this, nor suspend 
 the charge, unless upon consignation. But one of the excellent regula- 
 tions enacted by the act of sederunt already cited,-|- authorizes the common 
 agent to furnish the minister with an interim decreet of locality, at the 
 common expense. 
 
 Ministerial jurisdiction of the court in regard of small 
 STIPENDS — By recent statutes,^ a ministerial jurisdiction was conferred 
 on the teind court. By the first, it was statuted and ordained, and declared, 
 that all heritors and liferenters of lands in Scotland, should be entitled to 
 have the teinds or tithes of their lands valued at certain fixed rates, to be 
 paid for the same in all time coming : and whereas, in many parishes in 
 
 • 4vi Geo. III., c. 138. f 5th July, 1809. \ 50 Geo. III., r. 84. •, 5 Geo IV., c. 72. 
 
5Q0 COURTS OF LAW IN SCOTLAND. 
 
 Scotland, where the stipends of tlie parochial ministers are payable out of 
 the tithes, i7i consequence of the depreciation of the value of money ^ 
 the stipends of such parochial ministers have become inadequate to their 
 support and maintenance : and on account of the valuation of tithes which 
 has taken place, no funds exist out of which future augmentations of such 
 stipends can be granted. And whereas in several parishes where the 
 stipends of the parochial ministers are payable out of funds and revenues 
 separate and distinct from the teinds, such stipends have also become 
 inadequate to the support and maintenance of the ministers thereof, and 
 no funds exist out of which such stipends can be augmented : and whereas 
 it is expedient, that means should be provided for augmenting the stipends 
 of each of such ministers as aforesaid, to a yearly amount or value of one 
 hundred and fifty pounds sterling^ and it appears that an annual sum 
 not exceeding ten thousand pounds sterling^ will be sufficient to carry 
 these purposes into effect : it is therefore enacted, that from and after the 
 passing of this act, there shall in every year, be set apart and appropriated 
 in the hands of his majesty's receiver- general and paymaster in Scotland, 
 out of the public revenues and money received and collected by him, an 
 annual sum, not exceeding in the whole the sum of £10,000, to answer 
 the purposes of this act. And by section second, the clerks of the different 
 presbyteries are enjoined to make up accounts of the different parishes 
 within each presbytery, the stipends of which parishes do not extend in 
 their yearly amount or value to the sum of £150 sterling, and whicli 
 cannot be augmented to that extent under the laws at present in force, 
 either by reason of the teinds of such parishes being already exhausted, or 
 for want of other funds, out of which such augmentation could be made ; 
 or where, from the small amount or value of the unexhausted teinds, it has 
 been deemed inexpedient to bring actions of augmentation : which accounts 
 shall specify the amount of each such stipend in money, grain, or other 
 articles, in which the same is payable, and the rate at which such grain or 
 other articles, if not in use to be paid in kind, are convertible into money; 
 and if in use to be paid in hind^ the value thereof, on an average of the last 
 nine years preceding the passing of this act : and the period when such 
 stipend was last augmented : and if any unexliausted teind remains, speci- 
 fying the amount or value thereof as far as the same can be ascertained. 
 The court were thereby directed to take these accounts into considera- 
 tion, in order to certify such cases as required to have the stipend made up 
 to £150, out of the said sum of £10,000 a-year, set apart for that pur- 
 pose ; and the requisite schedules were directed to be recorded in the 
 exchequer, in order to precepts being issued by the barons of exchequer, 
 addressed to the receiver- general, for payment to the several ministers of 
 tlie requisite sums to make each of their stipends up to ^150 a-year. 
 
COURTS OF LAW IN SCOTLAND. 60! 
 
 besides the sum payable to them in name of communion elements, payable 
 out of the teinds. Under this act of parliament, the small stipends have now 
 been nearly all provided for. But it appearing on investigation, that many 
 ministers, whose stipends were of small amount, were without either a 
 manse or a glebe, and the low price of grain having also caused the average 
 conversion to fall below the sum reported at making up the small stipends, 
 the sum of £2000 was voted* to be annually paid out of the exchequer, 
 for making up the stipends to the sura of £l50 per annum, so that no 
 established minister in Scotland can have less than £l50 per annum. 
 And besides, should the stipends be diminished £5 per annum, below the 
 sum guaranteed by law, the fourth section of the act provides for their 
 being made up by the exchequer. 
 
 The Jbnn of application to the teind court is exceedingly simple. It 
 must be intimated to the agents for the officers of state in the matter of 
 tithes. When to make up the stipend to £l50, it is done by a minute in 
 the name of one or more ministers claiming to have their stipends made 
 up to £150, accompanied by certificates from the presbytery clerk, given 
 in and enrolled before the junior lord ordinary. This minute is allowed 
 to be seen, and at the next calling, in the course of the lord ordinary's 
 hand-roll, if no objections are stated on the part of the officers of state, a 
 remit is made to the teind clerk, to prepare a schedule : after which the 
 case is again put on the lord ordinary's hand-roll, and the schedule allowed 
 to be seen. If no objections are offered, the lord ordinary approves of 
 the schedule. The minute is then enrolled in the inner house teind roll, 
 and the proceedings resumed before the whole lords sitting in judgment in 
 their ministerial capacity, and the lord ordinary's report approved of. 
 After this, extracts of the schedules are transmitted to the exchequer. 
 
 In the case of the manse and glebe, the application is in the form of a 
 printed petition to the whole lords, detailing the circumstances and history 
 of the parish. This petition is either appointed to be answered, and if no 
 objection be made, the petition is de piano granted. In order to defray 
 the expenses, one shilling in the pound is directed to be kept off the first 
 year's payment. 
 
 The process of augmentation, when the minister insists on it merely to 
 exhaust the teinds, so as to entitle him to claim for the deficiency in the 
 exchequer, will be libelled and conducted in all points precisely as if there 
 were abundance of free teinds in the parish to pay him an adequate 
 stipend. But as soon as the cause comes duly prepared to the augmenta- 
 tion roll for debate, decree for the whole teinds of the parish will terminate 
 the suit, unless, indeed, the heritors whose teinds are not valued, persist in 
 having the ceremony of a locality gone through. If the whole teinds are 
 
 * 5 Geo. iy.,c,72. 
 
5^ COURTS OF LAW IN SCOTLAND. 
 
 valued, and thoir amount agreed on arid specified in the scheme of tlie 
 proven rental, the minister, without abiding a decree of locality, may 
 terminate the proceedings as to him, and follow out his application for 
 relief under the acts referred to touching small stipends, as soon as he has 
 got his decree of augmentation. The only consequence of the heritors 
 demanding a process of locality, will be to saddle them with its expense, 
 instead of their allowing him to extract his decree of modification at his 
 own expense. 
 
 In any process of transportation, annexation, disjunction, and erection, 
 the patron or the presbytery may insist as pursuers or plaintiffs ; but no 
 heritor or body of heritors can do so, unless possessed of lands to the 
 extent of three parts in four of the valued rent of the parish. The 
 defenders are all persons having a real interest in the process, viz., the 
 titular, the patron, the heritors, the liferenters, the presbytery within 
 whose bounds the parishes lie : leaving out, of course, the parties at 
 whose instance the process is insisted on. I have dwelt longer on the 
 constitution and forms in this court, than may perhaps be thought 
 necessary; but to the country ministers and the country heritors, such 
 information as is here given may, it is hoped, be acceptable.* 
 
 The supreme consistorial, or commissary court. — The term 
 consistorial courts is now applied to the commissary court, which was 
 substituted in place of the bishop's court ; and the bishop's court 
 derived its title from the courts held by the Roman emperors.f The 
 commissaries or officials, were anciently the delegates of the clergy, for 
 judging in those questions which fell within the ecclesiastical jurisdiction ; 
 which the clergy anciently established, not only in questions of tithes, 
 patronage, scandal, breach of vows, and other ecclesiastical matters, but in 
 all other cases which were by any means analogous to them. And being 
 early intrusted with the administration of certain legacies, they gradually 
 assumed the exclusive right of proving or confirming testaments, and of 
 naming administrators for managing the movable estates of such as died 
 intestate. The bishops judged not only in cases of adultery and divorce, 
 because in the church of Rome marriage is called a sacrament ; but in 
 the restitution of dowers, because they were given in the view of marriage : 
 and by the regiam majestatem it is declared, that debates concerning 
 marriage, testaments, advocation of ku-ks, and rights of patronage, also all 
 cases of bastardy, and all controversies in which an oath intervened; 
 because an oath is an act of religious worship addressed to the Deity, 
 should belong to the ecclesiastical courts. In consequence of this extensive 
 jurisdiction, the clergy were too much called off from their sacred 
 
 * Bell's Law Dictionary. Sir J. Conncl on Tithes. Bcvcridge's Forms of Process. 
 f Bell's Law Dictionary. 
 
COURTS OF LAW IN SCOTLAND. 503 
 
 functions J they therefore committed the judicial part to their vicars, wlio 
 were called officials, or commissaries. Hence the commissaiy court is 
 called the bishop's court, or the curia christianitatis ; and it is sometimes 
 called the consistorial court, a word used to denote the court in which the 
 Roman emperors sat with their councils, the comites consistoriani, either 
 for the determination of private causes, or for consultation on public 
 affairs, and afterwards transferred to the courts held by churchmen, and 
 which gave the title of the sacred consistory/ to the conclave of cardinals. 
 At the Reformation, all episcopal jurisdiction exercised under the 
 authority of the Roman pontiff was abolished by an act of the estates in 
 1560, which was afterwards ratified by queen Mary,* The queen made a 
 new nomination of commissaries, one in every diocese, who were to act 
 under the royal authority, and immediately erected a new commissary 
 court at Edinburgh, by a grant dated 8th February, 1563. It has a 
 double jurisdiction, one diocesan, which it exercises over the special 
 territory contained in the grant, viz., the counties of Edinburgh, Hadding- 
 ton, Linlithgow, Peebles, and a part of Stirlingshire, although in practice 
 this diocese is confined to the three Lothians. The other jurisdiction is 
 u?iiversal, by which it confirms the testaments of all who die in Scotland 
 without a fixed domicile, and reduces the decreets of inferior commissaries. 
 There was but one commissary in each diocese, until the erection of the 
 commissary court of Edinburgh, after which inferior commissaries were 
 established under a commission from James VI., in most of the principal 
 towns in Scotland. 
 
 Upon the establishment of episcopacy, the bishops were restored to the 
 nomination of their commissaries by act of parliament 1609, c. 6, and the 
 right of naming the four commissaries of Edinburgh was given to the two 
 archbishops of St Andrews and Glasgow, each of whom was to name two. 
 After the erection of the see of Edinburgh, the archbishop of St Andrews' 
 right of nominating two of the commissaries was transferred to the bishop 
 of Edinburgh, subject, liowever, to the archbishop's approval. But since 
 the revolution, the nomination of all the commissaries has reverted to the 
 crown, there being no legal successors to the bishops; and since that time 
 the commissaries have invariably been laymen. Although the court of 
 session is the king's great consistory, yet it has no inherent jurisdiction in 
 consistorial causes in the first instance; it only judges in the way of advo- 
 cation. Neither does it give sentence in any consistorial cause brought 
 before it by advocation, but remits it to the commissaries with instructions 
 how to proceed : and after the commissaries have delivered judgment, and 
 the decree is extracted, they have no power of review, except upon a remit 
 from the court of session. 
 
 * Act 1567, c. 2. 
 
504 COURTS OF LAW IN SCOTLAND. 
 
 At the Restoration, it was judged necessary that the commissary court 
 should be reinstated in their ancient rights and forms, as during the 
 usurpation of Oliver Cromwell, they had suffered very considerable inno- 
 vation. In consequence, they received a new set of instructions by his 
 majesty king Charles II., on the 21st January 1666, as follows: — 
 
 1. You are to decide in causes concerning benefices, teinds, scandal, confirmation of 
 testaments, all causes testamentary, and all causes wherein oath is required, if the same 
 exceed not forty pounds, and in all other causes where parties submit themselves to your 
 jurisdiction. 2. In cases of declarator of nullity of marriages, divorces, bastardy, or adher- 
 ence, where the same has any connexion with the lawfulness of marriage, or adultery ; all 
 whicli belong to the commissaries of Edinburgh privative'; but when the adherence is pur- 
 sued on account of malicious desertion only, and where there is no question of the nullity or 
 lawfulness of the marriage, the inferior commissaries may decide. 3. That in processes for 
 res leves not exceeding forty pounds, there be two diets of citation : and the defender's oath, 
 if instantly offered, shall be taken. If the defender desire to see, a short time shall be given. 
 If the claim be referred to his oath, and he appear not to be warned pro tertio, and cited 
 personally, to be holden as confest. If the claim be small, and neither referred to oath, nor 
 instantly verified, he is to get a short time to answer verba; and if -convened as representing 
 any other person, as executor, intromittor, &c., you are to assign a term to qualify, and give 
 in his defences in writing. 4. The same methods must be observed in arduis, and that the 
 dispute be in writing, as the difficulty of the case requires. 6. The clerk shall have one 
 book for all the ordinary diets and acts, and another for acts of litis-conlestiition, wherein 
 shall be summarily set down the substance of the libels, allegeances, and litis-contestations 
 thereon : which record shall be sufficient, without necessity of either extract or register, or 
 extracting an act of litis-con testation ad longum, except the parties desire a long extract of 
 the same. 6. That your clerks keep a register of all decreets, and those within forty pounds 
 be curtly recorded. 7. After litis-contestation, the party cannot pass from his compearance, 
 but all such acts and decreets shall he parte comparente. 8. That jour summons be execute 
 by a sufficient man before two witnesses, and questioning the same shall not stop the prin- 
 cipal cause: and if any of your executions be found false and unproven, the contrivers and 
 abettors thereof, depending on your court, shall be declared incapable of trust thereafter, 
 and farther punished according to their accession thereto. 9. You may summon witnesses 
 to compear, under such pecunial fines, as you may think fit; and, on contempt, your officers 
 are to uplift those fines, and poind therefor, the half thereof to jour own use, and the other 
 to the poor ; and to fine them in greater sums on the second summons, or to raise letters of 
 homing, as you think fit : and that j ou be still present at examining of witnesses, so jour 
 procurators shall not persist to make frivolous allegeances, under pain of deprivation. IL 
 At advising, you are not to consult or suffer any procurator to be present. 12. You shall decern 
 liberal expenses, and ordain execution therefor, as for the principal sum. 13. You may 
 direct your precepts to your own officers, messengers, or any other officer in your bounds: 
 and on their deforcement, you may judge thereon, and inflict the ordinary punishment of 
 deforcers, excepting escheat, which must be sued for before the judge competejit. 14. If 
 temporal judges cognosce in causes belonging to you, you may direct precepts inhibiting 
 them. 15. You shall give forth inhibition of great and small teinds, on sight of the parties' 
 title allenarly. 16. If reduction be intended before the commissaries of Edinburgh, of any 
 of jour decreets, you may not the less cause your sentence to be executed : and if not pursued 
 within year and day, the party being of age and in the kingdom, your decreet stands 
 unreduceable. 17. You and your clerk must live within the commissariat, under pain of 
 deprivation, except, on grave occasions, you have liberty from the bishop. 18. You shall 
 have a register of all the testaments j ou confirm, and shall yearly give authentic doubles 
 thereof to the bishop. 19. The clerk at compting on the first day of May and November 
 yearly, shall depone to the bishop, that all the testaments confirmed are booked in the books 
 then produced. 20. You shall give forth no precepts in matters above forty pounds, till the 
 
COURTS OF LAW IN SCOTLAND. 505 
 
 decreet be extracted. 2L On your being sick or declined, tlie bishop is to depute another 
 in your room. 22. You must find caution to compear the first day of May and November 
 yearly, and compt with the bishop or his quote-master for the quote and contribution money 
 to the commissaries of Edinburgh, under pain of five hundred pounds toties quoties. 23. If 
 your clerk confirm testaments which are not booked and compted for to the bishop, your 
 office vaiks ipso facto. 24. Your bishop's license must be had to admit your procurators, 
 who with yourselves, are to wear gowns : but you may create your own officers. 25. That 
 of the profits of summonses, sentences, and other writs, with the seal and signet, two 
 parts to be the commissaries', and the third the clerk's, he furnishing paper, wax, ink, and 
 chamber. 
 
 All matrimonial cases, such as actions of declarator of marriage, legiti- 
 macy, nearness of kin, adherence, divorce, bastardy, &c., belong to the 
 private jurisdiction of the commissaries. In questions of bastardy, their 
 jurisdiction is limited to the life of the alleged bastard. An action for 
 having it declared that one deceased was a bastard, and that his estate is 
 fallen to the king, like all other declarators of escheat, must be pursued 
 before the court of session. All testamentary cases, making up titles to 
 personal estates of defuncts by confirmation, questions concerning execu- 
 tory, and division thereof, constitutions of the debts of deceased persons, 
 separation a mensa et thoro, &c., belong to the diocesan jurisdiction. In 
 causes having only a remote resemblance to consistorial causes, the juris- 
 diction of the commissaries is cumulative with other judges ordinary : 
 such as in actions of benefices, tithes or teinds, applications for inspecting 
 or sealing up the writings of persons deceased : or actions brought by 
 their creditors or legatees against the executors. But when a privileged 
 creditor brings an action purely to constitute his debt, without a conclusion 
 for payment, such an action is deemed purely consistorial, and must be 
 brought before the commissaries ^nw^« instantia. Questions of scandal, 
 or verbal injuries, have been always looked upon as consistorial ; and, so, 
 proper to the cognizance of the commissaries : and in all instructions 
 given from time to time by the crown to these judges, actions of scandal 
 are also mentioned as falling under their jurisdiction. 
 
 For many years past, the commissaries of Edinburgh have been mem- 
 bers of the faculty of advocates, and appointed by the crown ad mtam 
 aut culpam, and the office has always been esteemed honourable. The 
 crown always appoints the principal commissary clerk ad mtam aut 
 culpam, that is for life or good behaviour. The principal clerk appoints 
 his deputy clerk, who is always appointed during his own life, having no 
 reference to the life of his principal. He is appointed in his commissior 
 extractor of court, with powers to name a substitute under him. Both 
 principal and depute clerks sign summonses, testaments- dative, extracts, and 
 other deeds of court. The crown also appoints the fiscal of court ad mtam 
 aut culpam, whose office is to give concurrence in actions where the 
 same is deemed necessary. The faculty of advocates, and the society of 
 
 3 s 
 
606 COURTS OF^AAW IN SCOTLAND. 
 
 solicitors, are the practitioners of court. The commissaries appoint their 
 own macer. His duty is to execute edicts and summonses of court; call 
 the rolls in court after the clerks; take charge of the gowns; attend the 
 office; and execute the commands of the commissaries' clerks, and other 
 members of court. The officers of court reside, some within the city, and 
 others througliout the commissariat ; they are never admitted but upon 
 petition, and must find caution (that is, security) for their faithful ad- 
 ministration. 
 
 The court has two seals or signets, one larger and the other smaller, 
 on which are engraven the crown and thistle, with the motto, nemo me 
 impune lacesset ; and in the circumscription, sig. officii commissariatiis 
 Edinhurgens. All consistorial summonses, acts, and diligences therein, 
 and testaments-dative, &c., are signeted with the large seal, and the 
 repositories of dying and deceased persons are sealed up with the smaller 
 one. 
 
 The actions competent to this court may be divided into three classes : 
 1. Consistorial causes privative to the commissaries, such as declarators 
 of marriage, nullity of marriage, adherence, divorce, desertion, bastardy, 
 separation, and aliment, and the confirmation of testaments. 2. Of 
 actions that have a resemblance to consistorial causes, such as scandal and 
 defamation, actions against the executor confirmed, cognition, &c.; and, 
 3. Of actions wherein the commissaries have only a cumulative juris- 
 diction. 
 
 Though the decisions of the commissaries were always subject to 
 review in the court of session, still considering the vast importance and 
 delicacy of consistorial questions, it was long thought satisfactory that the 
 accurate and deliberate preparation of such cases was obtained at a moderate 
 expense, in a court not distracted by the multifarious business of the com- 
 mon law courts, and whose judges consequently became peculiarly qualified 
 for their important trust. Of late years, however, it has been thought 
 expedient to transfer the consistorial cases to other courts. In the reign 
 of George IV.* the first step towards this design was by suppressing the 
 district commissaries, transferring their jurisdiction to the sheriffs of 
 counties, and permitting no appeal from them unless directly to the court 
 of session. In the present reign,f tiie jurisdiction which the commissaries 
 of Edinburgh possessed within their own peculiar district, has now been 
 restricted to the county of Edinburgh; and on the death of the present 
 judges, this restricted portion is to be transferred to the sheriff of Edin- 
 burgh : while that which extended to Linlithgow and Haddington, has 
 been already transferred to the sheriffs of these counties respectively. In 
 
 * 4 Geo, IV,, c. 97. I 1 Wm. IV., c 69. 
 
COURTS OF LAW IN SCOTLAND. 607 
 
 the mean time, the commissary court at Edinburgh is the commune forum 
 for the confirmation of testaments of persons dying furth of Scotland; 
 and at its final dissolution, at the death of the present judges, the sheriff 
 court of Edinburgh becomes the common court. No part of the provincial 
 duty was difllicult, or very unlike the ordinary business of a sheriff's 
 court; but whether the transference of the privative jurisdiction which the 
 commissaries exercised over Scotland, in the great consistorial questions, 
 to the court of session, be any improvement, must be left to the test of 
 experience.* Till the passing of the recent statute, the court of session 
 
 * The transference of the privative jurisdiction of the commissaries of Edinburgh to the 
 supreme court, being attended with some disadvantages, Mr Lothian has the following 
 remarks on their removal : — 
 
 1. That to secure one of the advantages which was enjoyed in the consistorial court where 
 there were no vacations, the powers of the court of session, when not sitting, should in all 
 consistorial questions, be vested in the lord ordinary. We do not say this, merely because 
 It is required for the peace of mind of the litigant, whose rank and fortune are probably 
 dependant on the issue of the suit, but because very serious and irreparable injury may 
 result from the death of either parti/ during the vacations of that court. If the pui"suer of a 
 divorce die before sentence, the guilty party has saved every legal or conventional right. 
 If the defender dies before sentence, the claims of the next of kin, notwithstanding of the 
 adultery, are good against the innocent pursuer. It is sufficient, in both of these events, 
 that there was no divorce. It cannot be pronounced after the death of either party. 
 
 2. The court of session should not be limited in the power of granting commissions for 
 taking proofs to the commissaries alone, while they remain in office. It was usual for the 
 commissaries to grant commissions to qualified individuals resident in remote districts or 
 abroad, where the poverty of the party, indisposition of witnesses, or any sufficient cause, 
 called for it. When the proof is not sent to a jury, it is now, however, enacted, *' that the 
 remit shall be made to tlie commissary court of Edinburgh, which court, or any judge 
 thereof, shall take such proof."' 
 
 3. It is declared, that the jurisdiction of the commissaries, beyond that possessed by sheriffs 
 being commissaries in the different counties, has entirely ceased, *' save and except such as 
 may regard the granting of confirmation o£ testaments of persons dying furth of Scotland." 
 But it is equally necessary to grant to them, or to some other court in Scotland, jurisdiction in 
 regard to testaments of persons happening not to '* die furth of Scotland," and yef 7iot having 
 any fixed domicile within it; for example, travelling merchants, soldiers, or foreigners in 
 IScotland on a visit. Jn regard of these very ordinary cases, by an error in the act, the 
 commune forum is abolished. 
 
 4. In regard to the preliminary action of adherence to found a divorce, the commissaries 
 of Edinburgh, till their offices become vacant, and after that, the court of the sheriff of 
 Edinburgh, should be declared the commune forum for citing parties, who, in violation of 
 their conjugal duties, have absconded and gone abroad. As the action of adherence is not 
 made competent in the court of session, and the commune forum, as to this particular, has 
 not been reserved to the commissaries, we do not see, till the act is amended, how a divorce 
 on the head of wilful desertion, where the party has fled out of Scotland, can at present be 
 obtained. This certainly was not intended ; and no one can reflect on the circumstances 
 which generally give rise to the action of adherence, without wishing that this error may be 
 speedily corrected. 
 
 5. The act seems to have put an end to a form of process, by which a man, doubtful of 
 the legal import of his own conduct towards a woman, was enabled at once to bring it under 
 the judgment of the commissaries. We allude to the action of declarator oi freedom and 
 putting to silence, which was often the only mode left to check reports industriously circulated 
 by a woman and her friends, in the hope of ultimately founding a claim of habit and repute. 
 This action is not yet made competent to the court of session, while the clause in the statute 
 which declares, " that the commissary court of Edinburgh shall possess and exercise the same 
 and no other jurisdiction in the sheriffdom of Edinburgh, than that possessed and exercised 
 by sheriffs, being commissaries, in other sheriffdoms in Scotland," Avhich plainly excludes it 
 from the court of the commissaries of Edinburgh, it not being competent in any sheriffdom. 
 
 6. It is declared by the statute, that actions of aliment are competent to the sheriff courts. 
 If interim aliment be meant, it was unnecessary to insert any sych provision in the statute, 
 because the judge ordinary alwa) s had the power of adjudging such aliment On the other 
 hand, if permanent aliment be meant, it is obvious the sheriffs can only award it on finding 
 
508 COURTS OF LAW IN SCOTLAND. 
 
 had no jurisdiction, ^n;wa instantia, in such causes. It only judged of 
 tliem by advocation, and remitted with instructions. But now a clause 
 enacts, " that all actions of declarator of marriage, and of nullity of 
 marriage, and all actions of declarator of legitimacy and of bastardy, and 
 all actions of divorce, and all actions of separation, a mensa et thoro, 
 shall be competent to be brought and insisted on only before the court of 
 session." The same act declares actions for aliment to be competent to 
 the sheriff's court.* As this act does not include the process of adherence 
 necessary to found the action of divorce, it remains with the commissaries 
 of Edinburgh, against parties domiciled within tlieir resti'icted territory^ 
 until their offices become vacant ; after which it passes to the sheriff of 
 Edinburgh. The sheriffs of counties are now competent to try actions of 
 adherence against parties resident within tlieir territory. f 
 
 The High Court of Admiralty The lord high admiral of 
 
 Scotland had anciently very extensive powers and jurisdiction, both in a 
 judicative and a political capacity, and which were exercised by a person 
 designed the judge of the high court of admiralty. He was the king's 
 lieutenant and justice-general upon the high seas, and the coast and 
 kingdom : in this court, all treaties of commerce with foreign countries 
 were recorded ; all embargoes, in time of war, were laid on by its 
 authority ; and all letters of marque and reprisal were issued under its 
 seal. It had likewise a radical privative jurisdiction in all maritime and 
 mercantile affairs, both civil and criminal. Some doubts, however, 
 having arisen, with respect to the jurisdiction of this court, its limits and 
 extent were at length fixed and ascertained by the following statute : — \ 
 
 that either marriage or good ground for separation has been proved : but these questions 
 are, by the same statute, declared to be exclusively competent in the court of session, thus 
 leaving the powers of the judges ordinary in alimentary questions exactly where they were : 
 while a woman in the lower ranks, seeking a separation and separate aliment on the ground 
 of maltreatment, has lost the benefit of the commissary court. 
 
 7. It is a grave question too, whether, since the law of Scotland holds marriage to be 
 contracted by express or constructive consent, it be just to deprive the poorer classes of the 
 means which they have hitherto enjoyed, of judicially establishing that such consent has 
 been interchanged. It would be better to abolish the law altogether, under the proflered 
 protection of which, a woman may be induced to surrender herself to a consensual contract, 
 than to put that protection beyond her reach by interposing a tedious and expensive lawsuit. 
 But this is an evil which applies to all the cases now transferred to the court of session; and 
 will be felt where the policy of rendering justice accessil)le to the poor is indisputable: for 
 example, in the case of a poor woman suing for declarator of marriage celebrated in the 
 faceof the church. 
 
 The whole of these errors might have been avoided, and the full benefit of the statute 
 attained, namely, the prevention of reiterated appeals, simply by adopting tlie sugireslion of 
 the parliamentary commissioners in their third report for 1818, which was to allow only one 
 appeal, and that' directly from the commissary court to the inner house of either division 
 of the court of session, passing over the bill chamber and outer house altogether.^ 
 
 * ! Wil. IV., c. no, sec. o3. + 4 Geo. TV., c. 97. 
 
 \ 1681, cap. 16. 
 
 § Boyd's Judicial Proceedings, IVIr Lothian's Law Practice and .Styks Peculiar to 
 Consistorial Actions, &c., 1830. Reil's Law Dictionary. 
 
COURTS OF LAW IN SCOTLAND. 509 
 
 Our sovereign lord, considering that the clearing and establishing the jurisdiction of the 
 high admiral of this kingdom will greatly tend to the advancement and encouragement of 
 trade and navigation: therefore his majesty, with advice and consent of the estates of 
 parliament, doth ratify and approve the fifteenth act of the twelfth parliament of king 
 James VL, in the whole heads, clauses, and articles of the same : and decerns and declares 
 the high court of admiralty to be a sovereign judicature in itself, and of its own nature to 
 import summary execution. And statutes and declares, that the said high admiral, as he 
 is his majesty's lieutenant and justice- general upon the seas, and in all ports, harbours, or 
 creeks of the same, and upon fresh waters, or navigable rivers below the first bridges, or 
 within the floodmarks, so far as the same do, or can at any time extend ; so the said high 
 admiral hath the sole privilege and jurisdiction in all maritime and seafaring causes, foreign 
 and domestic, whether civil or criminal, whatever, within this realm, and over all persons, 
 as they are concerned in the same. And prohibits and discharges all other judges to meddle 
 with the decision of any of the said causes in the first instance, except the great admiral 
 and his deputes allenarly. And statutes, ordains, and declares, that it is the privilege of the 
 said high admiral to cause parties to become enacted and find caution, not only for com- 
 pearance, but for performance of the acts and sentences of his court ; and that he may 
 punish all breakers of his arrestments, and resisters of his officers in the execution of his 
 precepts, and apply the fines and ameicements to his own use, conform to the laws of the 
 kingdom. And further statutes and declares, that the high court of admiralty is a supreme 
 court; and that the decreets and acts of all other inferior courts of admiralty are subject to 
 the review and reduction of the said high court of admiralty. And for the more ready and 
 quick despatch of justice in maritime and seafaring causes, foreign and domCvStic, whether 
 civil or criminal, within this realm, and over all persons, in so far as they are concerned in 
 the same, both to natives and strangers : our sovereign lord, with advice and consent foresaid, 
 prohibits and discharges all advocations in the aforesaid causes, from the said court of 
 admiralty to the lords of session, or to any other judges whatsoever, in all time coming; 
 and that no suspension, or other stop to the execution of the decreets or acts of the court of 
 admiralty be passed by the lords of session, at any time hereafter, except by the whole lords 
 ill presentia in time of session, and by three of the said lords in time of vaaition, met 
 together to that effect ; and that if any suspensions or stops shall happen to be passed in 
 manner foresaid, the same be summarily discussed upon a bill, and be privileged and 
 exeemed from the ordinary course of the roU ; and if, upon discussing thereof, the same shall 
 be found to have been unjustly and maliciously raised, that the said high court of admiralty 
 ma)^, upon the application made by the parties concerned, modify and decern the damages 
 they have sustained by the said suspensions and stops of execution of their acts and decreets, 
 atlour the expense of plea before the lords of session, which is to be modified by the said 
 lords of session. As also his majesty, with the advice and consent foresaid, statutes and 
 ordains, that it shall be lawful and competent to the said court of admiralty to review their 
 own decreets and sentences, if there be just occasion for the same. And his majesty, with 
 the advice and consent aforesaid, decerns and declares, that it is the sole right and privilege 
 of the high admiral and his deputes, the judges of the high court of admiralty, to grant 
 passes and safe conducts to all ships ; and inhibits and discharges all others to grant the same, 
 as they will be answerable upon their highest peril. And his majesty, with advice and 
 consent aforesaid, casses, annuls, and rescinds, all and whatsoever laws, acts of parliament, 
 or customs, contrary to, or ai)3wise inconsistent with this present act. 
 
 From this period down to the Union, the judge of admiralty exercised 
 
 all the above recited powers and jurisdictions : and as the preservation 
 
 of the rights and jurisdictions of the court affected the trade and commerce 
 
 of the nation, an act in tlie reign of queen Anne, provided. 
 
 That all admiralty jurisdiction shall be under the lord high admiral, or commissioners 
 for the admiralty of Great Britain ; and the court of admiralty now established in Scotland 
 shall be continued ; and all reviews, reductions, or suspensions of the sentences in maritime 
 
510 COURTS OF LAW IN SCOTLAND. 
 
 causes competent to the jurisdiction of that court, shall remain in the same manner as now 
 in Scotland, until the parliament of Great Britain shall make such regulations as shall be 
 judged expedient for the whole united kingdom : so as there be alwajs continued in Scot- 
 land a court of admiralt}' such as in England, for determination of all maritime cases, 
 relative to private rights in Scotland, competent to the jurisdiction of the admiralty court, 
 subject nevertheless to such alterations as shall be made by the parliament of Great 
 Britain.* 
 
 The jurisdictioa and privileges formerly competent to this court, have 
 been, since the Union, exercised by a lord high admiral, or vice admiral, 
 appointed by his majesty, and who again grants commissions to inferior 
 admirals during pleasure. By the above cited act of 1681, the juris- 
 diction of the high court of admiralty extends to all maritime causes; 
 and so comprehends questions of charter party, freight, salvages, wrecks, 
 bottomries, policies of insurance, and in general all contracts concerning 
 the lading or unlading of ships, or any otiier matter to be performed 
 within the verge of the admiral's jurisdiction. And all actions for delivery 
 of goods sent on ship board, or for recovering their value, or where the 
 subject of tlie suit consists of gooda transported by sea from one port to 
 another. All these causes are privative to the admiralty court, and must 
 be brought before it prima instantia. TIius, though the court of 
 session may review the admiral's decrees by suspension, it cannot carry a 
 maritime action from him by advocation; and even when causes depending 
 before inferior admirals are brought by advocation before the court of 
 session, they generally remit them to the high admiral, who is declared 
 by tlie statute sole judge in the first instance. 
 
 This court has power not only to review and reduce the decrees and 
 sentences of inferior admirals, but likewise its own. And there is frequently 
 occasion for the high admiral to review his own decrees: because defenders 
 are often decerned in terms of the libel, for failing to find caution, de 
 judicio sisti et judicatum solvi : and it is highly expedient that the 
 court of admiralty should be vested with power to exact such caution, 
 because frequently strangers are cited before it, who might by withdraw- 
 ing out of the kingdom, render its jurisdiction ineffectual, unless caution 
 (security) was found. It is therefore the uniform custom of this court to 
 ordain defenders, in causes purely maritime, to find security accordingly; 
 and upon their failing to do so, to decern in terms of the libel. The 
 defender may be compelled either to find such security, or to go to prison 
 upon the pursuer's application, even before the action is called in court : 
 the pursuer deponing that he has just reason to suspect that the defender 
 is about to leave the kingdom, and in meditatione fugce. And on the 
 other hand, the pursuer must find security for the defender's expenses 
 and damages (if insisted for) in the event he shall be found entitled thereto. 
 
 * 5 Anne, cap. 8. 
 
COURTS OF LAW IN SCOTLAND. 511 
 
 It was also peculiar to this court, for libels to contain different conclusions. 
 For instance, they might contain a constitution of the debt against the 
 common debtor, and a forthcoming against the person in whose hands 
 arrestments have been used; or a constitution of the debt, and a sale by 
 auction of the vessel arrested. Judgments pronounced upon such actions 
 have been repeatedly affirmed by the court of session. 
 
 This court was also competent in mercantile matters, but had no priva- 
 tive jurisdiction therein, nor was entitled to exact security from the parties, 
 as in maritime cases. Thus the high court of admiralty had a cumulative 
 jurisdiction in the first instance with the court of session, between mer- 
 chants and others beyond seas, and between them and persons in Scotland, 
 arising from contracts, or otherwise relating to commerce; and actions 
 upon bills of exchange, from time immemorial, have been found competent 
 to the high court of admiralty, as being in re mercatoria; but deputy 
 admirals had no jurisdiction in cases merely mercantile. In a case which 
 depended before the court of session, on 17th July 1506, the competency 
 of the admiral's arrestment, founded upon an inland bill, having been 
 objected to, the lords by a solemn decision sustained the arrestment. 
 
 The lord high admiral of Scotland held his office from the crown, 
 during his majesty's pleasure, and had the appointment of the officers, 
 judge, clerk, and all the subordinate admirals in Scotland. 
 
 The procurator-fiscal of court held his office by gift from the judge- 
 admiral, and enjoyed it ad vitam aut culpam. His duty was to give his 
 concurrence in all actions before the court when necessary. 
 
 The faculty of advocates were entitled to plead and practise before this 
 court, as well as the procurators belonging to it. 
 
 The principal clerk of court, who is the extractor, held his office from 
 the high admiral, and enjoyed it ad vitam aut culpam. The depute 
 clerk held his commission from the principal, and the office depended 
 upon the principal's life. 
 
 The macers of court were appointed by the judge-admiral. Their 
 duty was to execute summonses and warrants of court; or when the 
 party was at a distance, to grant concurrence to messengers at arms to 
 do so. 
 
 The British arms and an anchor were engraven on the seal ; with the 
 motto, Horn soit qui mal y pense : and in the circumscription, Sigillum 
 Admiralitatis Scoticc.^ 
 
 In the present reign the court of admiralty in Scotland has been entirely 
 abolished, and its jurisdiction transferred to the court of session, by " An 
 act for uniting the benefits of jury trial in civil causes with the ordinary 
 
 * Bell's Law Dictionary. Boyd's Proceedings before the Inferior Courts in Scotland. 
 
512 COURTS OF LAW IN SCOTLAND. 
 
 jurisdiction of the court of session, and for making certain other alterations 
 and reductions in the judicial establishments of Scotland,"* as follows : — 
 
 XXL And whereas all maritime causes may now be brought by revicAvs before the court 
 of session, and many causes formerly heard and determined by the high court of admiralty 
 are now remitted to the jury court : and whereas the court of justiciary holds a cumulative 
 jurisdiction with the high court of admiralty as to all crimes competent to be tried by the 
 In'gh court of admiralty : and whereas it has become unnecessary and inexpedient to main- 
 tain any separate court for maritime or admiralty causes; be it therefore enacted, that the 
 high court of admiralty be abolished, and that hereafter the court of session shall hold and 
 exercise original j urisdiction in all maritime civil causes and proceedings, of the same nature 
 and extent in all respects as that held and exercised in regard to such causes by the high 
 court of admiralty before the passing of this act: and all applications of a summary nature 
 connected with such causes, may be made to the lords ordinary on the bills: provided always 
 that all such causes, not exceeding the value of twenty-five pounds sterling, shall be instituted 
 and carried on, in the first instance, before an inferior court, in the manner directed, and 
 with the exceptions specified in an act of parliament of Scx)tland passed in the }"ear sixteen 
 hundred and seventy-two, intituled An Act concerning the regulation of the Judicatories. 
 
 Sheriff's Court. — Like most of our other offices of jurisdiction, 
 that of sheriff had formerly been hereditary in the great families of the 
 nobility, and the jurisdiction of the sheriff seems anciently to have been 
 very extensive, but the establishment of the court of session naturally 
 drew to it the more important feudal questions. The office of sheriff, in 
 Scotland, differs very essentially from the same office in England. By 
 statute,f after tlie attempt of Prince Charles Edward on the British crown, 
 tlie hereditary jurisdictions of the Scottish nobility were resumed, and 
 annexed to the crown. The crown being the fountain of justice, and by 
 the fundamental principles of the British constitution, the king has alone 
 the right of creating courts of judicature. 
 
 The king, therefore, is sheriff- in-chief over every county, and appoints 
 a deputy. The sheriff depute is the magistrate, or judge ordinary con- 
 stituted by the crown over a particular shire or county. The office is of 
 considerable antiquity, and from the nature and extent of the jurisdiction 
 attached to it, and the numerous and important duties falling to be 
 discharged by it, the legislature has wisely provided;}; that there shall be 
 one sheriff depute, or steward depute, in each county or stewartry, to be 
 appointed by the king, who must be an advocate of three years' standing, 
 and who is likewise very properly declared incapable of acting as an 
 advocate in any case brought from the county of which he is the sheriff 
 depute. These deputes are each authorized to name one or more sub- 
 stitutes, either over the whole shire, or within a particular district of it, 
 for whom the depute is responsible ; and they may not only hold courts at 
 their chief burghs or county towns, but itinerant courts, when or where 
 they please, or where they shall be directed by his majesty, on previously 
 publishing notice at the several parish churches within the district where 
 
 * 1 Wil. IV., c, 69, sec. xxi, f 20 Geo. IL, c. 43. | Ibid. 
 
COURTS OF LAW IN SCOTLAND. 513 
 
 they intend to hold their court. Every deputy is bound to reside personally 
 within his county or stewartry for at least four months in the year. All 
 the sheriff deputes who were appointed by the act in 1756, or should 
 afterwards be appointed, are to hold their offices ad vitam aut culpam : 
 but for malversation, or misbehaviour in his office, a sheriff depute may 
 be deposed by the court of session, at the suit either of the king^s advocate, 
 or of any four freeholders, who before the passing of the reform bill were 
 entitled to vote in the election of a member of parliament for the county : 
 or in the event of delinquency being charged and established against 
 him in parliament, an address founded on it, to the king, by either house, 
 would of course produce his removal from office.* 
 
 No sheriff, or stewart depute or substitute, can be steward, chamber- 
 lain, or commissioner, in any subject whatsoever, nor collector of the 
 cess, neither can he exercise nor act in the service, employnient, or office 
 of any such, under the penalty of an ipso facto forfeiture of his office of 
 sheriff. 
 
 The sheriff's jurisdiction, both civil and criminal, was anciently nearly 
 as ample within his own territory as that of the supreme courts of session 
 and justiciary was over the whole kingdom : for he received in his court 
 the four pleas of the crown, viz , murder, robbery, rape, and fire-raising, 
 when authorized by the justiciary; and he judged in declarators of pro- 
 perty, or pleas of right, and in other questions of the greatest importance: 
 and even after his jurisdiction came to be more limited, it retained for a 
 considerable time this supreme mark; that it received causes from the 
 baron-courts of subject-superiors to the sheriff court. And to this day 
 the sheriff judges in all actions upon contracts or other personal obli- 
 gations to the greatest extent, whether the suit be brought against the 
 debtor himself or his representative, in forthcomings, in poindings of the 
 ground, in mails and duties, and in all possessory actions, as removings, 
 rejections, spulzies, &c. : in all brieves issuing from the chancery, as of 
 inquest, terce, division, tutors, &c., and even in adjudications of landed 
 estates, when proceeding on the renunciation of the apparent heir, but in 
 no other adjudications, except perhaps adjudications in implement. His 
 present criminal jurisdiction extends to certain capital crimes, as theft, 
 and even murder, though it be one of the pleas of the crown j and he is 
 competent to most questions of public police, and has a cumulative juris- 
 diction with justices of the peace in all riots and breaches of the peace. 
 
 In the reign of George IV.,f it was enacted, that from and after the 
 1st January 1824, the sheriffs or Stewarts depute of the respective 
 counties in Scotland, (excepting Edinburgh, Haddington, and Linlithgow, 
 
 * 21 Geo. II„ c. 19. t 4 Geo. IV., c. ^. 
 
 St 
 
614 COURTS OF LAW IN SCOTLAND. 
 
 which sheriffdoms shall be and remain, the commissariot of Edinburgh, as 
 provided for by the same act) shall fill the office of commissary and sheriff 
 substitutes within their respective shires, and shall exercise within their 
 respective commissariots, the power and authority exercised by the former 
 inferior commissioners, with certain exceptions provided by the act. By 
 another act, 20th May 1825,* it is enacted, that from and after the 
 passing of this act, it shall be lawful for any sheriff in Scotland, within 
 his county, to hear, try, and determine all civil causes and complaints, 
 that may be completely brought before him, wherein the debt or demand 
 shall not exceed the value of eight pounds sterling, exclusive of expenses 
 and fees of extract, in a summary way. 
 
 Sheriff's Duties and Jurisdiction in Criminal Matters. — 
 Sheriffs are bound to attend the judges of justiciary when on their circuit 
 ayres : and since the new regulation of their courts, they relieve justices 
 of the peace of a great part of the criminal business, judicial as well as 
 ministerial and magisterial, which devolves on their brethren in England. 
 
 The old method of taking up dittayf by the stress and Porteous rolls,t 
 was abolished in the reign of queen Anne; and the act§ directs, that after 
 the Ist May, 1710, the sheriffs, magistrates of burghs, and other inferior 
 judges, shall upon the 22d day of February and 22d day of July, annually, 
 hold courts at their usual places of sitting, there to receive information of 
 matters criminal to be tried at the ensuing circuits. And these magi- 
 strates are bound to transmit written abstracts of the accusations offered 
 to them at their respective courts, forty days at least before the sitting of 
 the respective circuit courts, to the lord justice-clerk and his deputies, 
 containing the material circumstances of the several charges, and of the 
 evidence by which they are supported, so as indictments may be prepared 
 in due time, and in proper form, for the trial of the persons accused. 
 This statute farther commits the making of presentments to the justices 
 of the peace assembled in quarter sessions, or in two meetings to be 
 held by them for that special purpose, on the days already mentioned. 
 But in practice this duty has devolved upon the sheriff, whose office 
 was new-modelled in 1748, on a plan which affords far better security 
 than formerly for his skill and diligence in such matters ; and imposes on 
 
 * 6 Geo. IV., c 24. 
 
 f Bittay, is a technical term in criminal law, signifying the matter of charge, or ground 
 of indictment against a person accused of a crime. The manner of taking up dittay, as it 
 was termed, or obtaining information and presentments of crime, in order to trial, has 
 undergone various changes. — BelVs Law Diet. 
 
 ^ Porteous Roll. — This was a roll of the names of offenders, which, by the old practice 
 of the justiciary court was prepared by the justice-clerk from the informations of crimes 
 furnished to him or his deputies, by die local authorities in the different districts compre- 
 hended within the circuits. The justice-clerk seems also to have prepared the indictments, 
 and to have taken the other steps necessary for bringing offenders to justice. — BelTs Law 
 Diet. 
 
 § 8 Anne, c. 16. 
 
COURTS OF LAW IN SCOTLAND. 515 
 
 him the obligation of making immediate inquiry into the nature and 
 circumstances of every crime committed in his sheriffdom, as soon as his 
 fiscal or the party injured shall prefer any complaint to him. Hence it 
 generally happens, that the offender has been arrested or held to bail, and 
 the whole precognition* finished and transmitted to his majesty's advocate, 
 who is now the proper ofllcer for receiving it, before the statutable day for 
 the presentment of crimes. 
 
 For illustrating with greater effect the sheriff's jurisdiction in criminal 
 matters, we shall here briefly advert to the exclusive jurisdiction of the 
 court of justiciary. This results, in some instances, from the nature of 
 certain crimes: for example, in the case of treason, for which the lord 
 advocate alone can prosecute: all prosecutions of justices of the peace, 
 sheriffs, magistrates of burghs, other inferior judges or officers, for negli- 
 gence, corruption, or malversation in office, to which may be added pro- 
 secutions for deforcement of messengers. In other cases, this exclusive 
 prerogative is the creature of statute; such as the crime of sorning,\ 
 or extorting meat and drink from others by force or menaces; the crime 
 of notour adultery ;:{: that of assaulting ministers for causes pertaining to 
 their clerical functions; that of blasphemy, or denying the doctrine of the 
 holy trinity; that of clandestine marriage, if the celebrator is to suffer 
 banishment, or corporal pains; that of seducing artificers to go abroad ;§ 
 and, in general, that under all statutes inflicting the doom of trans- 
 portation, which is not within the commission of the sheriff, or other 
 inferior judges: while this affords a ground for the like interference as to 
 simple banishment from Scotland. This catalogue is still augmented by 
 that of incest; the cursing or beating of parents; the attempt to kill a 
 minister, or rob his house; the fighting a duel;|| the invading (assaulting) 
 of a privy counsellor; the new felonies created by the riot act;^[ the enlisting 
 of soldiers to serve in a foreign state, all which are peculiar to the justi- 
 ciary. Besides all those offences against the officers of the revenue acting 
 
 * Precognition is an examination by the judge ordinary or justices of the peace where 
 any crime has been committed, in order that the facts connected with the otTence may be 
 ascertained, and full and perfect information given to the public prosecutor, to enable him 
 to prepare the libel or indictment, and carry on the prosecution. In this investigation, the 
 A\itnesses are not usually put upon oath, and they must be examined separately ; nor is the 
 accused, nor any person in his behalf, admitted to be present when the precognition is taken. 
 Those who know any thing of the fact may be compelled to come forward : and for this 
 purpose the judge grants a warrant to summon them, which, should they disobey, will be 
 followed by a warrant of imprisonment until they comply. The precognition must be taken 
 prior to the execution of the criminal letters ; for, after that, communications between the 
 prosecutor and the witnesses are improper. — Hell's Law Vict. 
 
 t By statute, 1581, c. 105.; 1661, c. 21; 1695, c. 251. 
 
 \ Notour adultei-y. — The lav> of Scotland makes a distinction between simple and notour 
 adultery. The latter is, where issue is procreated between the adulterers ; where they are 
 known to live together at bed and board ; or where they give scandal to the church, and are 
 excommunicated for their obstinacy. By act of parliament, 1651, c. 20, notour adultery was 
 punished by the loss of moveables; and by a posterior statute, 1563, c. 74, it was rendered 
 capital. The punishment of simple adultery is arbitrary. — EeWs Laiv Did. 
 
 § 5 Geo. I., c. 27. || 1600, c. 12. f Ist Geo. I, c. 5. 
 
516 COURTS OF LAW IN SCOTLAND. 
 
 in their duty, i/vhich the statutes of later times have raised to the rank of 
 felony, and punished with death. In like manner, it is only to the lords 
 of justiciary, and never to any inferior judge, that the court of session 
 remit in cases of forgery or falsehood j and in ancient practice, the four 
 •pleas of the crown^ murder, robbery, rape, fire-raising : of the two 
 former of which the sheriff is now deemed competent. This court too 
 may appoint a sheriff depute, in the event of a vacancy, pro tempore^ for 
 the purpose of executing the Porteous rolls; and in virtue of their nolnle 
 ojicium, they assign aliment to prisoners; visit and approve of new gaols; 
 assign particular places of keeping for prisoners, such as the caslle of 
 Edinburgh; liberate those whose lives are in danger from confinement : 
 it authorizes, too, the edictal citation of vagabond or lawless and desperate 
 persons, who have no established dwelling-place; and, in certain instances, 
 reviews the sentences of inferior judges. 
 
 The lords of justiciary can also take special cognizance of malversations 
 of public officers : they may summarily infiict a suitable censure on mes- 
 sengers and macers for negligence, extortion, or any other abuse in the 
 citation of pannels,* witnesses, or assizers ; or in the taking and conveying 
 prisoners on their warrants : on gaolers, for cruelties or oppression towards 
 prisoners for crimes : on the magistrates of burghs, for the escape of 
 such prisoners, or the insufficiency or unwholesomeness of tlieir gaols : on 
 sheriffs, for failure to attend the judges on their circuits, or inaccuracy in 
 the execution of the Porteous rolls, or of warrants for the conveyance of 
 criminals, or the like :f on the clerks of the court of justiciary, for 
 exacting improper fees, or for gross omissions, blunders, or falsehoods in 
 the act of their official duty. 
 
 At the same time it may not be uninteresting here to notice, that there 
 
 * Patinel, in Scotch law, means the accused person in a criminal action from the time of 
 his appearance. — EeWs Law Diet. 
 
 Panel, in English law, is used more particularly for a schedule or roll containing the 
 names of such jurors as the sheriff returns to pass upon any trial ; and the impannelliiig a 
 jury is the entering their names by the sherift" into a panel or little schedule of parchment — 
 Tomliri's Law Diet. 
 
 t More particularly in regard to sheriffs, the judge on the southern circuit, in May, 
 1728, deprived the steward-substitute of Kirkcudbright of his office, and declared him 
 incapable of holding it for the future, for an irregularity in the execution of the citation of 
 the pannels in the Porteous roll. Again, in tlie spring of 1744, the sheriff-depute of 
 Wigton having failed to attend the judges on their circuit, was ordered before the court at 
 Edinburgh, and publicly reprimanded. Also in the spring of 1777, the judges on the 
 northern circuit reported to the court, that the sheriff' of Sutherland had failed to attend 
 them, or to offer any excuse for his absence, for which he was reprimanded. Nay, on the 
 2d May, 1720, the judges on the western circuit found the sheriff' of Wigton liable in a fine, 
 and in damages to the party aggrieved, for the execution of an unjust and oppressive sen- 
 tence; though, from the more recent judgment in the case of John Gray, sheriff'-depute 
 of Wigton, on the complaint of James Mackie, for refusing to receive or transmit the 
 pi'csentment of a criminal at his instimce, it is to be inferred, that the sheriff is now entitled 
 to the benefit of a trial in such cases, by an assize summoned on a libelled charge in common 
 course. In short, all magistrates and public officere of every degree, are under the cog- 
 niziuice of the court of justiciary, not only for ordinary transgressions, but also for such as 
 those into which they may have inadvertently fallen in their official capacity. 
 
COURTS OF LAW IN SCOTLAND. 517 
 
 are certain privileges which attach to particular classes. For instance, 
 Scottish peers, by the treaty of Union, enjoy all the privileges of British 
 peers, except that of sitting in the house of lords in their own right, and 
 especially the privilege of being tried as peers of Great Britain; conse- 
 quently the rule in such cases is as follows : for high treason, petty 
 treason, or misprision of treason, also for murder or any other felony, 
 they are subject only to the judgment of their own order, assembled in the 
 court of the lord high steward of Great Britain j towards which trial a 
 bill must be found in terms of the statute* by a grand jury of twelve 
 men, who may be commoners, and before a special commission, which shall 
 issue for that purpose. This privilege is inherent in all the individuals of 
 the Scottish peerage, equally as in the sixteen peers who represent that 
 order in the house of lords : and even for those members of the peerage, 
 such as females, minors, and formerly papists,! who cannot be elected as 
 representative peers. On the other hand, for all offences of a lower 
 degree, the Scottish peers, like the British, are answerable in the ordinary 
 courts of justice ; and it is said also, that they are liable to attachment for 
 such contempts of court as are of a high degree. For instance, James 
 earl of Roseberry was outlawed in the court of justiciary on a libelj for 
 deforcement.^ And, in 1740, the earl of Morton was tried there on the 
 
 * 6 Anne, c. 23. 
 
 f There is now, since passing " the Relief Bill," no distinction nnade between Protestant 
 and Roman Catholic nobility. 
 
 t Libel, is used in Scotch law in different significations : it is applied to the form of the 
 complaint, or the ground of the charge, on which either a civil or criminal prosecution takes 
 place. It is also applied to scandal reduced into writing. 
 
 Crimbial libel, whether in the form of an indictment or of criminal letters, is in a syllogistic 
 form, in which the major proposition states the crime by its appellation, or by description, 
 and that it is severely punishable. The minor proposition avers that the pannel has been 
 guilty of this crime, and states the particulars of the deed which he has done. The conclu' 
 sion is, that on conviction the pannel ought to suffer the pains of law. 
 
 In a civil action. — In the supreme civil court the libel is contained in letters passing under 
 the signet, called a summons, which runs in the king's name, and is addressed to messengers 
 at arms or sheriffs in that part. The pursuer's (or plaintiti''s) title to insist in the action is 
 stated ; the ground of his action, and the conclusions by which justice is to be done to him, 
 are put in the form in which the judgment is to be pronounced; and the whole closes witli 
 an order on the messenger to cite the defender to appear in court, and hear decree given 
 against him, in terms of the conclusions of the libel, or to show cause on the contrary. Where 
 the summons is raised in an inferior cx)urt, it does not run in the king's name, but in the 
 judge's, and is directed to the officers of court, who by the will of the summons are ordered 
 to cite the defender to appear, that he may hear decree given against him. 
 
 Libel. — Scandal reduced into writing and published or circulated, is of all others the most 
 public and permanent, and ought therefore to be punished with greater severity than where 
 the scandal is merely spoken ; the animus injurandi is likewise more clearly proved. This 
 offence may be the foundation of a criminal prosecution, or of a civil action for reparation, or 
 of a combination of both actions. The offence consists either in turning the person into 
 ridicule, or in blackening his moral character ; and the punishment will be proportioned to 
 the nature of the offence, and the malignity of the disposition which the offender may have 
 discovered. — -Beirs Law Diet. 
 
 § Deforcement, is an act of contempt for the law, consisting of a violent opposition and 
 hinderance to an officer of the law in the execution of his official duty. He must be a 
 lawful officer, either a messenger-at-arms, or other officer to Avhom the execution of the 
 diligence or other warrant or order may be legally intrusted, and the resistance must bo 
 offered to him while engaged either in the formal execution of the official act, or after he 
 lias assurned the official character, and is in immediate preparation (m actu proximo) io 
 
518 COURTS OF LAW IN SCOTLAND 
 
 same libel with other persons of lower rank, for the crimes of assault, 
 oppression, and wrongous imprisonment.* 
 
 enter on the formah'ties. The officer must notify who he is, and the purpose of his errand ; 
 and, if required, he must exhibit his warrant, although he need not part with it. A mes- 
 senger.at-arms must also exhibit his blazon, and an inferior officer his baton or other badge 
 of office ; and in the attempt to execute his duty, he must have been himself proceeding in 
 every other respect in a lawful manner. The obstruction offered must relate to the duty in 
 which the officer is engaged ; and it must be such an act of violence astc create either an 
 actual impediment, or to excite a well grounded alarm for his personal safety. It must be 
 an actual hinderance ; for if the officer proceed and accomplish his object, the ofl'ence will 
 amount to no more than an attempt to deforce, or an assault. All parties concerned in the 
 rt-sistance, whether the party against whom the proceeding is directed, or others, are guilty 
 of the deforcement. 
 
 The statutes relating to the punishment of this offence, are 15S1, c. 118, which provides 
 that those convicted be punished by escheat of movables, the creditor being preferable for 
 his debt, expenses and damages ; 1587, c. 84, which provides that persons guilty of deforcement 
 be prosecuted either civilly or criminally at the option of tlie pursuer, and that their lives and 
 goods be at the king's will ; and 1592, c, 150, which makes deforcing an officer of the law, 
 or molesting him to the eifusion of his blood, punishable by forfeiture of movables, one 
 half to the king and the other to the pursuer. It does not appear, however, that under these 
 statutes, any thing more than an arbitrary punishment has ever been inflicted. The ordi- 
 nary punishment is fine and imprisonment, accompanied with damages to the private party. 
 It might be inferred from the terms of the act 1592, c. 150, that the deforcement must be 
 accompanied with effusion of the officers blood, before it can be the ground of a prosecution 
 ad criminalem effectum ; but Hume makes it appear that this is not necessary. 
 
 The (»mpetent prosecutors for deforcement are either, Isf, the lord advocate; or, 2d, the 
 messenger and the lord l}on, even without the concurrence of the party employer ; or, 3d, 
 the party employer. The competent court is either the courts of justiciary or of session •, and 
 of course inferior courts may also protect their officers from injury in the execution of their 
 duty. The statutes referred to, recognize the jurisdiction of the court of session in cases of 
 deforcement : but according to the present practice, when the action is brought into that 
 court, the conclusion is not for the statutory pains, but merely a civil action for pajment of 
 the debt, witli interest, damages, and expenses : although were an aggravated case to occur 
 before the cx)urt of session, the court might no doubt remit it to the lord advocate, with a 
 view to his instituting proceedings ad vindictam publicam. 
 
 The emplo) er of the officer who has been deforced cannot be a witness even in a prosecu- 
 tion by tlie public prosecutor, unless he discharge his interest in the escheat, and for the 
 recovery of his debt ; and if the private party or the officer prosecute, no near relation of 
 either seems to be admissible as a witness, even although such pei-son may have been a 
 sul>scribing witness to the execution of deforcement. It is tlierefore the duty of a messenger 
 who anticipates resistajice, to select witnesses who may be exposed to no such objections. It 
 would appear, that altltough the defender be assoilzied (acquitted) in the criminal process, 
 yet he may be pursued criminally, and the fact of the deforcement referred to his oath. 
 
 The deforcement or forcible resistance of revenue officers in the execution of their official 
 duty, or such resistance offered to any of his majesty's naval or military forces, or to any 
 other person or persons acting in aid of the revenue officers, is a capital crime. And when 
 a person has been killed in the execution of his duty, if any individual shall be charged oji 
 oath before a justice of the peace or other competent person, with having been concerned in 
 the resistance which led to the death, his majesty's counsel may issue an order on the person 
 60 cliarged, to surrender himself within sixty daj s ; and if, after due publiaition of this 
 order, in the manner pointed out by tlie act, he fail to do so, " he shall then be adjudged, 
 decerned, and taken to be convicted of a capital crime, and shall suffer the pain of death and 
 confiscation of movables, as in the case of a person found guilty of a capital crime, and 
 under sentencefor the same ; and it shall be lawful for the court of justiciary, or the lords of 
 justiciary, in their circuits in Scotland, to award execution against such offender, in such 
 manner as if he had been found guilty and condemned in the said court of justiciary, or 
 circuit courts respectively.'' — (52 Geo. III. c 143.) — EeWs Imw Diet. 
 
 * Wrongous imprisonment, is committed under the statute of 1701, c. 6, by a judge or 
 magistrate granting a warrant for commitment, in order to trial, without cause expressed, 
 and on information not subscribed by the informer : by officers of the law receiving or de- 
 taining prisoners on such warmnts — refusing to the prisoner a copy of the warrant of com- 
 mitment — detaining him in close confinement above eight dajs after such commitmeiit. — 
 not duly releasing him on bail, where he is committed in order to trial for a bailable offence 
 — or transporting persons beyond seas, without their own consent, or on a lawful sentence. 
 Other species of wrongous imprisonment, not falling underthe statute, are punished arbi- 
 trarily at common law. The statutory punishment is a pecuniary fine, and payment of a 
 
COURTS OF LAW IN SCOTLAND. 519 
 
 The sheriff has always had a principal charge in matters relative to the 
 conservation of the peace, and the execution of the laws within his 
 sheriffdom. With the foregoing exceptions, his jurisdiction reaches all 
 transgressions against either our common or ancient statutory law, espe- 
 cially those punishable by arbitrary pains : all offences against the public 
 peace, such as assault, affray, mobbing, having unlawful weapons, hame- 
 sucken,* incendiary letters, or violent threats of any sort. He executes 
 the laws against profanity, lewdness, and excessive drinking; against 
 Egyptians! ^^^ sorners,$ vagabonds and sturdy beggars, § resetters of 
 thieves or stolen goods, and keepers of loose and disorderly houses : those 
 against destroyers of trees, and breakers of yards, cunningaries,|| and 
 dovecots ; and those against the users of false weights, forestallers, 
 engrossers, and others of that description. He is competent in a trial of 
 falsehood, to inflict an arbitrary punishment; of usury, so far as it relates 
 to the treble penalties; of fraud, swindling, and breach of trust; of perjury, 
 and subornation of perjury; of breaking prison, and the deforcement of 
 his own officers, or those of the other inferior magistrates of the county; 
 of bribery; or that kind of calumny which is the ground of a proper 
 criminal action : at least there seems to be no sufficient reason for his not 
 judging on those charges, as he certainly may of all malversations by the 
 
 sum of money per diem to the prisoner, both in proportion to his rank, and, moreover, 
 incapacity for public trust. This act has been extended to private offenders also ; and the 
 penalties (which cannot be modified) may be sued for before the court of session, which has 
 the sole cognizance of this crime. The right to prosecute under the statute prescribes in 
 three years. Wrongous imprisonment founds also a civil action at common law for damages, 
 at the instance of the injured party, against the magistrate or officer of the law, or other 
 person who has done the wrong. — Bellas Law Diet. 
 
 * Hamesucken, is the offence of feloniously beating or assaulting a person in his own house 
 or dwelling place. In this sense, the house must be the place where the person resides. 
 Unless it be adjoining to the house, a shop is not reckoned a man's dwelling house; but the 
 garden of the house, or a court in front of it, will be held to be part of the house. A hired 
 apartment in a lodging house will also be held, quoad hoc, to constitute a man's house, even 
 although the assault be committed by the owner of the house; but an inn, or a friend's 
 house, at which a person occasionally resides, is not in this sense a man's own house. Neither 
 is a theatre to this effect counted an actor's dwelling place. A ship, which is the proper 
 residence of the master or crew, is considered as a dwelling place. And aiming a blow, or 
 offering to strike, though a blow be not actually given, has been held to infer the crime of 
 hamesucken. This crime is punishable capitally. — Bell's Laiv Diet. 
 
 t Egyptians, gypsies. They are punishable in Scotland as rogues and vagabonds. 
 
 \ Sorners. A person is guilty of soming who takes meat and drink from others by force 
 or menaces, without pajing for it. This practice had formerly prevailed to such an extent 
 in Scotland, that the most rigorous measures were necessary for its suppression, in so much 
 that in the reign of Robert XL, the offence was punishable with death ; and at all times 
 with the severest penalties. — Bell's Law Diet. 
 
 § Vagabonds and sturdy beggars, were at one period classed as necessary, i. e. involuntary 
 sei-vanis, such as indigent children, colliers, salters, and workmen who refused to serve at 
 the legal rates. Various severe enactments were passed against them, under the descriptions 
 of beggars, fortune-tellers, jugglers, minstrels, &c., and in some cases providing even capital 
 punishments. The act 1698, c. 21, ratified all the preceding acts against them, besides there 
 were two more modern acts, 4 Geo. I., c. 11, and 9 Geo. II., c. 5, which imposes penalties. 
 But now, vagrants are seldom taken up, or punished, unless where police regulations are 
 enforced ; or where they are entering a parish in the face of an advertised prohibition, or 
 where they are committing, or in the habit and repute of committing petty delinquencies. — 
 ReWs Law Diet. 
 
 y Cunningaries, rabbit \\'arrens. 
 
620 COURTS OF LAW IN SCOTLAND 
 
 officers, clerks, or other members of his own court in their official 
 capacity. To this list may be added the crimes of bigamy; of clandestine 
 marriage, when prosecuted for the pecuniary penalties ; and simple 
 adultery.* The sheriff's powers likewise extend to the crime of rebellion, 
 if there are no aggravating circumstances to incur transportation ; of 
 intrusion into churches; to the offence which is constituted by the episcopal 
 clergy in Scotland neglecting to comply with the prescriptions of the 
 toleration act,f and other relative acts of a later date. 
 
 His powers in cases inferring a capital punishment, are admitted by the 
 infliction of such severe penalties against the gypsies, and which are 
 committed to all inferior magistrates for execution : also in the crime of 
 hamesucken; and in the two first of the four pleas of the crown, viz.^ 
 murder and robbery. In regard to murder, it was anciently a fixed rule, 
 that if the murderer were taken red-handy or instanter, the sheriflF should 
 see justice done on him " witliin that sunned' or within twenty-four 
 hours after the deed : but the period of doing justice on the offender, 
 was, long since, enlarged from one sun to three; and the statute of 1(395, 
 c. 4, provided generally with respect to " all capital crimes, wherein infe- 
 rior criminal courts were hitherto restricted to try and execute within three 
 suns, that this time shall hereafter be restricted to the trial and sentence 
 only, but not to the time of execution, which is wisely left to the discretion 
 of the judge, not exceeding nine days after sentence." That exception 
 was also obviated by a later statute, J which debars any capital sentence 
 from being put in execution, for thirty days, after date, if given south 
 of the Forth, and {or forty days, if given north of that river; nevertheless 
 the trial might be carried through within three suns, although the man- 
 ners and practice of later times have prevented so much precipitancy. 
 
 In cases of robbery, the exclusive right of the court of justiciary relates 
 only to a proper robbery, or the taking of property by means of violence 
 and fear, applied to the person of the possessor. The sheriff is a com- 
 petent judge in the trial for theft accompanied by violence of other sorts, 
 as by breaking into shops or houses, forcing open repositories, or picking 
 locks. It has always been allowed, that if a thief were taken with the 
 fang, or with the booty on him, the sheriff might and ought to try and 
 do justice on him immediately, although the injured party did not insist; 
 and the same was held to be law in the case of a common or reputed 
 thief. At least the sheriff's jurisdiction has been sustained over a common 
 thief, though neither taken with the fang, nor accused at the instance of 
 
 * For this last crime, the sheriff of Mid Lothian sentenced John Hudd to be flogged and 
 banished the county, in March 1749. 
 
 t Having their chapels licensed, and taking the oaths to government. 
 \ 11 Geo. I., c. 26. 
 
COURTS OF LAW IN SCOTLAND. 521 
 
 the party injured, but of the procurator-fiscal alone; and there are several 
 instances of the trial and capital conviction of a thief in the sheriff's court, 
 on indictment for his majesty's interest.* 
 
 Sheriff's civil jurisdiction. — In civil matters his jurisdiction is 
 also very extensive, and in some respects supreme, before the institution 
 of the court of session, when various causes which formerly came under 
 his cognizance were gradually appropriated to that court, on account of 
 their intricacy or importance. 
 
 In general, the sheriff judges in all personal actions upon contract, 
 bond, bill, obligation, paction, verbal promise, or otherwise, to the greatest 
 extent, whether against the debtor himself or his representatives, in actions 
 of rent, forthcoming, multiplepoinding,f poinding of the ground, $ adjudih 
 cations of land, when they proceed on the renunciation of the apparent 
 heir, and adjudications in implement; likewise in all possessory actions, 
 such as removings, ejections, spulzies, &c.;^ and in short, in all civil 
 
 * On 31st September, 1746, the sheriff of Mid Lothian passed sentence of death on Walter 
 Stewart and three others, on their conviction of theft and housebreaking; the sheriff of 
 Renfrewshire also sentenced Robert Lysle for theft in November 1753, which judgment was 
 affirmed on trial by suspension. In January 1753, the sheriff of Forfarshire condemned a 
 man to suffer death for housebreaking, which was also affirmed on a trial by suspension. 
 
 t Mulliplepoinding, means double poinding, or double distress, and gives name to an 
 action which may be brought by a person possessed of money or effects which are claimed 
 by different persons pretending right thereto. Thus, where money due by a debtor has been 
 arrested in his hands by the creditors of his creditor, or when the rents of an estate are 
 claimed by different claimants on the estate, the arrester in either of those cases, may raise 
 an action of multiplepoinding, calling the diflerent parties who claim the fund in viedio^ 
 and all others, to settle their respective claims judicially ; and also to have it found, that 
 (whoever may be entitled to the fund) the arrestee is liable only " in one single payment." 
 
 This action may be raised by the arrestee, or by the person on whom the claim is made ; 
 but it may also be raised in his name by any of the parties interested in the competition, 
 without his consent, or even against it : and every person interested, though not made a party 
 to it originally, may, in the course of that action, produce an interest in it, and plead the 
 grounds on which he conceives himself to be entitled to a preference, and this is allowed in 
 order to prevent a multiplicity of lawsuits. 
 
 The conclusions of the actions are, 1. That the raiser shall be liable in once and single 
 payment. 2. That the parties may debate their respective claims, and he who has the best 
 right to the subject in medio, may be preferred; and that the raiser shall be entitled to the 
 expenses of raising the action and bringing the parties into court. 
 
 A decree in this action secures the raiser of the process, and enables him to pay with 
 safety : it also settles the rights of the parties in competition : but it does not secure the 
 person preferred against the claim of one who may have a preferable title, and who has not 
 been made a party to the action of multiplepoinding. — BeWs Law Diet. 
 
 ^ Poinding is the Scotch law diligence, whereby the property of the debtor's moveables is 
 transferred to the creditor using the diligence. Poinding is either r^a^ or ;?ersonaZ ,- real 
 poinding, or poinding of the ground, proceeds on debts which are debita fundi, and it affects 
 the movables on the land to which the debt attaches; personal jminding, on the other hand, 
 is used by the creditors in ordinary personal obligations, and affects the debtor's movable 
 goods. There is a third description of attachment, which has also been termed poinding, 
 whereby cattle found trespassing on the grounds of another, are detained until the owner of 
 the cattle make satisfaction for the injury. — Hell. 
 
 % Spulzie, corresponding to ejection and intrusion in heritage, may be defined the taking 
 away of movable goods in the possession of another, against the declared will of the person, 
 or without the order of the law. In consequence of this unlawful act, an action lies not only 
 for restoring the goods, but for ail the profits which it was possible foi- the owner to have 
 made of the goods, as these profits shall be proved bv his oath in litem, and which the sheriff 
 may administer. This action must be brought within three years, in order to entitle the 
 pursuer to the violent profits, and will be avoided by any probable ground of excuse, or by the 
 spoliator's voluntary restitution de recenti. But an action for recovery of the goods citrried 
 
 3 u 
 
522 COURTS OF LAW IN SCOTLAND. ' 
 
 matters which are not by special law or custom appropriated to other 
 courts. He is also competent to authenticate tutorial and curatorial 
 inventories, and to seal and inspect the repositories of dying persons : to 
 processes of cognition of debts and payments, and to the registration not 
 only of bonds, contracts, or other deeds which bear a clause of registration 
 in the books of any competent judge, but of protests on bills. 
 
 Besides the class of personal and other actions alluded to, the following 
 diversity of suits and proceedings merit more particular notice. 
 
 I. A PETITORY ACTION OF MAILS AND DUTIES, IS Competent iiot Only to a proprietor who 
 has a feudal right perfected by sasine, but to a simple disponee or assignee, because a right 
 to the rents is included virtually under a disposition of the lands, and consequently to an 
 adjudger, and adjudication being a judicial disposition. And because ihe pursuer in Ihis 
 action founds upon right, not upon possession, he ought not only to make the possessors of the 
 ground, but the proprietors or liferenters, who are in the civil possession, and from whom 
 the natural possessors derive their right, parties to the suit: and he must support his claim 
 by titles of property, or diligences, prefenible to those in the person of his competitors. It 
 is directed against the tenants and natural possessors of lands, for payment of the rent re- 
 maining due by them for past crops, and for the full rent of the land in all time coming. 
 
 IL A POSSESSORY ACTION OP MAILS AND DUTIES. — It is Sufficient for the pursuer in this 
 action to call the natural possessors as defenders, and in questions with tenants deriving right 
 from himself, it is unnecessary to produce any other title than his own or his predecessor's 
 sasine (sfeising) : but if a third party should appear in the process, invested with a sasine, to 
 defend the possession of the present possessors, it will be incumbent upon the pursuer to 
 show that he himself, his predecessors, and authors, have been in possession of the rents for 
 seven years immediately preceding, upon a sasine or lease, and that thereby he has the benefit 
 of a possessory judgment upon such sasine or lease ; which judgment has this effect, that a 
 person though claiming under a right preferable to that of the possessor, cannot attain the 
 possession until he shall, in a former process of reduction, got his competitor's title declared 
 void. In both these actions, the quinquennial prescription* forms an exception in favour 
 of tenants, who are not liable for arrears of rent after five years from the date of their 
 removal from the lands. 
 
 III. An action of poinding the ground. — Any person having a debt secured on land, 
 or as it is called a debitum fundi, whether the security be constituted by law or paction, has 
 a right of action, of poinding the ground, or distraining the stock, crop, and goods on the 
 burdened land, to recover his payment, even though the original debtor should have been 
 divested of the property in favour of a singular successor, after granting such security. It 
 is therefore competent to an annual-renter, for the arrears of interest due upon his infeftmerit; 
 to a superior for his feu duties- and in general to all creditors in debts, which make a real 
 burden upon the lands. It is however incumbent on the pursuer of such actions, not only 
 to make the tenants and possessors parties thereto, but also the proprietor who has interest, 
 to show cause why the diligencef ought not to proceed. Where, then, the lands are held in 
 wadset, it is the v»adsetter,| who as proprietor ad interim, must be called, and not the 
 
 off illegally, and for ordinary damages, may be brought at any time within forty years, not 
 against the spoliator alone, but against all abettors, who are liable singnli in solidum, and 
 against his heirs, who are liable in violent profits also, if litis-contestation took place with 
 the ancestor. The spulzied properly may be evicted from bona Jtde purchasers, for spulzie 
 inurit labem realem. — HeWs Law Diet. 
 
 * Introduced bv the act 1C96, c. 9. 
 
 t Diligence. — This term is used in three different and unconnected meanings : 1. It is with pro- 
 priety used to express the nature and extent of the diligence and attention incumbent on the parties 
 to a contract, with regard to the case of the subject matter of the contract. 2. It means the warrants 
 issued by courts for enforcing the attendance nf witnesses, or the production of writings. And, .•?. 
 The terra is applied generally to the process of law, by which persons, lands, or effects, are attached 
 in execution, or in security for Apht.— Bell's Law Diet. 
 
 t Wad4et, JVadsettc:— 'Wadset is the conreyance of lands in pledge or in satisfaction of a debt or 
 
COURTS OF LAW IN SCOTLAND. 523 
 
 reverser. When decree is obtained in this action, and letters of poinding raised thereon, it 
 is unnecessary to give the tenants a previous charge, because nothing is decreed against 
 them ; neither is it necessary to charge the proprietor's apparent heir to enter, because it is 
 not the object of the action to make him personally liable, the lands and not the heir being 
 principally considered. The defenders not being made parties, as debtors to the pursuer 
 but as having interest in the lands aflected by the diligence, the letters of poinding raised 
 thereon are eflectual for recovering payment, not only of the interest due at issuing the 
 letters, but thereatter as long as the pui-suer is alive, though both the proprietors and the 
 natural possessors cited in the action as defenders, should be dead or removed from the lands. 
 Nothing, however, am be poinded upon such diligence, but what belongs either to the pro- 
 prietor of the ground or his tenants : goods, therefore, brought upon the lands by strangers 
 are not subject to it. 
 
 IV. Anciently, when a lease was about to expire, the owner of the ground verbally 
 intimated to the tenant to remove at the next term of Whitsunday; and previous to that 
 term he appeared before the tenant's door witli a wand in his hand, which he broke, as a 
 symbol of the dissolution of the tacit relocation betwixt them. If the tenant did not remove 
 voluntaril}, the landlord expelled him, on the second day after the term brevi manu, or at 
 least laid out some of his goods to complete the solemnity of removing. Hence arose many 
 quarrels, violences, and breaches of the peace, to remedy which a special form of warning 
 was enacted,* and the whole order of removing must be used forty dajs before Whitsunday, 
 though the term of the ish should be Martinmas or Candlemas ; because as W^hitsunday 
 then was, and still is, the ordinary term of entry over the greatest part of Scotland, tenants 
 would not otherwise have had a reasonable time to provide themselves in another farm. The 
 forty days are so computed as not to include the term day, nor the day on which the warning 
 is issued ; and by act of parliament,! the legal term of removing is declared to be the 
 fifteenth day of INIaj'. The ceremony proceeds on the landlord's precept, which must be 
 executed against the tenant personally, or at his dwelling place : also on the grounds of the 
 lands, and published at the parish church, by reading the same audibly at the most patent 
 door, immediately after the morning service. But by an act of sederunt of the lords of 
 council and session,]: it is declared that it shall be lawful to any heritor in his option, either 
 to use the order prescribed by the above act (1555,) and thereupon to pursue a removing 
 and ejection, or to bring his action of removing before the judge ordinary: and such action 
 being called before the ordinary at least forty days before the term of Whitsunday in the 
 jear in which the tenant's lease expires; and when the action is called in absence, decree of 
 removing is immediately pronounced: but if appearance be made for the tenant, he will 
 be heard in defence, but he must, ante omnia, find security for the violent profits. When 
 decree is pronounced and becomes final, a precept will be issued, on which, within fort)-eight 
 hours, the tenant may be removed. A landlord's title to prosecute a removal, whether 
 good or bad, cannot be questioned by the tenant who derives his right from him : but if 
 the proprietor is to insist against tenants or possessors who derive their right from others, 
 sasine is a necessary title in removing, unless the pui-suer's right is founded on the terce or 
 courtesy, these being legal rights perfected without sasine. A sasine is of itself a sufficient 
 title for removing possessors who cannot show a better ; but if the defenders have a real right 
 in the lands, the sasine is not held as sufficient, without producing the relative charter; and 
 the pursuer must stand infeft, not only before the action of removing is commenced, but 
 also before the date of the precept of warning. Nevertheless, Mr Erskine is of opinion, 
 that a bare disposition to land carrying an express right to mails and duties, entitles the 
 disponee to remove tenants as a necessary consequence. In either case, a co-proprietor, or 
 one who has only a joint interest in a landed estate, pro indiviso, cannot individually remove 
 tenants, as in the case of joint purchasers, co-heiresses, and of a widow entitled to a terce. 
 The tacksman of a colliery may be summarily sued to remove without any previous warning. 
 
 obligation, witli a reserved power to the debtor to recover his lands, on payment or performance. 
 During the enforcement of the laws against usury, a wadset was the usual expedient fallen upon by 
 a party wishing to borrow. The lender was called the wadsetter, and the borrower the reverser.— 
 Bel'. 
 * 1555, c. 39. +1690,0.39. J 14th Deoember, it56. 
 
524 COURTS OF LAW IN SCOTLAND. 
 
 The rules laid down by the act of sederunt, are so simple and complete, that they answer 
 ail the purposes of the old regulations, and will on that account be adopted in all removings 
 where there is no obligation in the lease requiring the tenant to remove, in which case the 
 act provides a remedy for enforcing the removing, equally simple and certain in the intima- 
 tion which it gives to the tenant. It declares that an heritor, where the tenant is bound by 
 the lease to remove, may raise letters of horning* on the tack (lease) ; and having charged 
 the tenant on these letters/or<^ dai/s preceding the term of Whitsunday in the same year in 
 which he is to remove, the sheriff on production of the tack and liorning, must eject the 
 tenant within six days after the term of removal. The act of sederunt further declares, 
 that where a tack is assigned, and the assignation not intimated by an instrument, or when 
 the lands are sublet in whole or in part to subtenants, the execution of such horning, or 
 where process of removing and decreet is obtained, or where warning in terms of the act of 
 1555, is used against the principal or original tacksman, the same shall be effectual against 
 the assignees or subtenants : nor is the effect of a warning lost either by the death of the 
 landlord or tenant. The statute expresses, " lands, mills, fishings, and possessions whatso- 
 ever;" and it has been found, that a warning to remove from fishings, must be given within 
 the same period as for lanis; hut it is not applicable to houses, though in the country, it 
 being sufficient if the warning is given forty days before the Ui, whether Whitsunday or 
 Martinmas; but if any portion of land id attached to the house, the warning mu^t be pre- 
 cisely in terms of the statute. 
 
 An act of parliamentf ordains, " that all tenants and cottars, shall preserve and secure 
 all growing wood and planting that is upon the ground they possess : that none of it shall be 
 cut, broken, or pulled up by the roots, or the bark peeled off any tree, and that under the 
 pain to be exacted by their master allenarly, of ten pounds Scots for each tree within ten 
 yeai-s old, and twenty pounds Scots for each tree that is above that age : the tenant being 
 huld liable for his wife, children, and servants, or any other within his family that shall 
 contravene this act:" therefore an action is competent before the judge ordinary for thest; 
 penalties, if incurred. And the following provisions of a previous statute merit attention, 
 and may be enforced by the sheriff: " that hereafter no pei"Son whatever shall cut, break, 
 or pull up any tree, or peel the bark off any tree, under the pain of ten pounds Scots for 
 each tree within ten years old, and twenty pounds Scots for each tree above that age: and 
 that the havers and users of the timber of any tree that shall be so cut, broken, or pulled up, 
 sliall be liable to the same penalt}', except he can produce the person from whom he got it ; 
 and if the person that sliall be so convicted, be unable to pay the fine, then he shall be de- 
 cerned to work a day for each half merk contained in the said fine, to the heritor whose 
 planting shall be so cut or broken :"— " and that no person shall break down or fill up any 
 ditch, hedge, or dyke, whereby ground is enclosed ; and shall not leap, or sutler their horses, 
 nolt, or sheep, to go over any ditch, hedge, or dyke, under the pain of ten pounds Scots, 
 toties quolks, the half thereof to be applied to the heritor, and the other half for the mend- 
 ing and repairing of bridges and highways within the parish, at the sight of the sheriff, 
 stewai-d, or justice of peace, before whom the contraveners shall be pursued."* • Farther, 
 «* all liferenters, cottars, and other possessors of lands or houses, shall cause herd their horses, 
 
 * Letters of horning, are letters running in the king's name, and passing his signet. They are 
 directed to messengers at arms as shenffu in tliat part, who are ordered to charge tlie person against 
 whom the letters are directed, to pay or perform in terms of the will of the letters, which must be 
 consistent with the warrant <in wliich the letters proceed. The warrant on whicii letters of horning 
 proceed, is either the decree of the cimrt of session, or of magistrates of burghs, shi>rift3, stewards, 
 admirals, commissaries, or the commission of tithes, and in some cases of justices of the peace. But 
 where the decree of an inferior court is the warrant, a bill must be presentt;d to the bill chamber of 
 the court of session, stating the nature of the decree, and terms of the decerniture, and praying war- 
 rant for letters of homing and poinding, which is always granted, so that, properly speaking, these 
 letters pa.^s on the warrants of the court of session only. By special s-tatute, letters of horning are 
 authorized to pass on bills of exchange, the protests on which have been recorded in any competent 
 court. These letters narrate the ground of debt, and the terms of the decree, by which the judge 
 firders payment or performance to be made; and in the will the officers are ordered to command and 
 charge the debtor to pay or perform in terms of i\u\ warrant stated in the recital, within fifteen days, 
 except the debtor resides within Orl;niy or Zetland, in which case the days of charge are forty days. 
 But under the acts of I6S1, c. 20, and 3 ii'H, c. 30, horjiings on.Hiils of dxchat.ge may proceed on a charge 
 of six days. — Bell. 
 
 T 1G98, r. 1(5. : 1(58:), c. 39. 
 
COURTS OF LAW IN SCOTLAND. 625 
 
 iiolt, slieop, swine, and goats, the whole year, as well in winter as in summer, and in the 
 night time shall cause keep the same in houses, folds, or enclosures, that they might not eat 
 or destroy their neighbours' grounds, woods, hedges, or planting: certifying such as contra- 
 vene, that they shall pay half a merk, loties quoties, for every beast they have going on their 
 neighbours' grounds, by and attour the damage done to the grass or planting: and declaring 
 that it shall be lawful for the heritor or possessor of the ground to detain the said beasts until 
 he be paid of the said half merk for each beast found upon the ground, and of his expenses 
 in keeping the same."* It is therefore customary for the sufTerer to prosecute the owner of 
 the cattle for the penalties and damages. The possessor of the ground on which the cattle 
 were seized might, by the most ancient practice carry them ott" brevi vianu, without a sentence, 
 to any house or field belonging to himself, and detain them for twenty- four hours. If within 
 that space the owner did not appear and claim them, the seizer might insist on a valuation 
 by the stated baronial appraisers, of the damage done, including the maintenance of the 
 cattle, and might retain one or more in proportion to the appraisement, restoring the rest 
 to the owner. The poinder or seizer must enclose and feed the cattle, and besides give the 
 owner due notice, otherwise he incurs the pains of a spulzie. 
 
 When lands are astricted or thirled to a particular mill, to which the possessor must carry 
 the grain produced on the astricted lands to be ground, on payment of such duties as are 
 either expressed or implied in the constitution of the right, the mill is called the dominant 
 tenement, and the astricted lands the servient : or the lands are called the thirl or the sucken, 
 and the persons subjected to this thirl or sucken, the suckeners. When the suckeners abstract 
 or withdraw their grain from the mill, its proprietor, or his tenant, have action against 
 them for the value of the abstracted multures, including sequels or servants* dues, in which 
 action the tenants guilty of the abstraction must not only be called as defenders, but also the 
 proprietor of the astricted lands (if he is not also the proprietor of the mill and thirlage) for 
 his interest; because, if he is not made a party, the decree will not bar him from an im- 
 munity from the thirlage by prescription. 
 
 Besides the tenant's personal obligation in a lease, the landlord has in security for his rent, 
 a real right in the fruits of the ground, and in the cattle either reared on it, or purchased 
 by the tenant. The com or other crops are hypothecated for the rent of the year in which 
 they were grown, and the cattle for every year successively, which last right subsists for three 
 months after the last conventional term of payment ; and when the cattle have been carried 
 off before Candlemas and Lammas respectivel) , the landlord must bring his action against 
 the poinder before the expiry of three months, in order to preserve his claim. This right 
 too, entitles the landlord to recover all corns carried oft" from the tenant, either by legal 
 diligence or voluntary purchase, and even from a purchaser in a public market, if there is 
 ground to suspect colfusion ; only the crop of the present year cannot be hypothecated for the 
 rent of the last year ; but all the com on the farm at the time, may be retained as a security 
 for the rent of the current crop. Accordingly, when a creditor poinds a tenant's eflfects, 
 before the term for payment of his rent, he must either consign or find security for, the 
 rent of the current year : but if after the term, it is obligatory either to pay the rent, or 
 leave untouched corn for its value. At the same time, if the landlord suspects either the 
 tenant's circumstances or his management, he may by sequestration make his right, which 
 was before general upon the whole stock, special upon any individual ; thus imposing a legal 
 nexus against the sale or transference of any part, and when the term of payment arrives, a 
 warrant to sell will be obtained for recovery of the rent. All these objects are accomplished 
 by a petition or summary application, expressive of the special facts of the case, with the 
 appropriate conclusion. 
 
 Where lands are sublet, the right of hypothec will be affected by the subtenant's situation. 
 For instance, if there has been a power in the lease to sublet, or if the landlord has known 
 and consented either tacitly or by agreement to the sublease, payment by the subtenant to 
 the principal, will exempt his crop from his landlord's claim. A similar hypothec exists 
 over furniture for house rents, the goods in shops, instrumentsof manufiicture, &c., in mills, 
 
 « Jumes VII., c. 11. 
 
526 COURTS OF LAW IN SCOTLAND. 
 
 warehouses, and the like, and which, though necessaril} general, may also be made special 
 by a sequestration, although it cannot any way affect purchasers in a shop whilst it is kept 
 open. 
 
 On application to the sheriff, he can stop by interdict any one from encroaching on the 
 property of another in any shape, till the matter has been judicially inquired into ; and if it 
 shall appear from a visitation by the judge, or the report of surveyois or inspectors named 
 for the purpose, that an encroachment has been made, the sheriff may ordain such to be 
 removed or remedied, and prohibit or discharge the aggressor from a repetition. 
 
 By the edict nauice, caupones, slabularii, of the ll^oman praetor, which with some small 
 variation is adopted by the law of Scotland, an obligation is induced by a traveller's enter- 
 ing into an inn, ship, or stable, and there depositing his goods, or putting up his horses, 
 by which the iinikeeper, shipmaster, or stabler, is bound to preserve for the owner whatever 
 is intrusted to his care. It extends to vintners in burghs, householders who take in lodgers, 
 carriers, and to proprietors of stage coaches. This obligation is the creature of the law ilself ; 
 for the bare act of receiving the goods, without any covenant or agreement, lays them under 
 it ; but it is limited to what is done in the ship, inn, or stable; for if the goods be stolen or 
 damaged, after they are carried off from thence, and so no longer under the depositary's eye, 
 he is no farther liable. The action is usually laid for the restitution or paj ment of tlie 
 value, as it may be established by the pursuer's oath in litem, with damages and expenses. 
 
 The law holds that a perpetujd obligation exists on parents to maintain and educate their 
 children, and reciprocally on children to maintain their indigent parents. A similar obliga- 
 tion extends to the eldest son, who, as representing the father, must aliment his younger 
 brothers and sisters ; and it is even extended to grandsons and vice versa. These obligations 
 may be enforced by an ordinary action at common law. 
 
 Collation is the act of throwing into one mass, divisible among those concerned, either the 
 heritable or movable estates of the deceased, and takes place either in settling betwixt the 
 heir and the executors, or amongst jounger children. In the first case, the right takes 
 place only where the heir, by seniority or sex, excludes others who are equally near in 
 relationship from the heritage; for instance, where the eldest son is heir, and the jounger 
 sons are executors, or where a son is heir and his sisters the executrixes : the same rule holds 
 also in collateral succession. Hut where the heir is the nearest relation to the deceased, he 
 is both heir and executor ; as where there is the eldest son and grandchildren, or his nephews 
 or nieces, the eldest son is both heir and executor, for there is no right of represent/ilioii in 
 movable succession, and therefore the children do not succeed to their parents' shares. It 
 is then in the former case where the heir and executore are of equal relationship to the 
 deceased, that collation can take place; and it consists in the heir's blending his heritage 
 with the movable succession, (a privilege conferred upon him by law), and sharing both 
 estates equally with the executors. For the accomplishment of this object, when the 
 intended heir raises a sort of declaratory action, which is competent before the sheriff, for 
 ascertaining that he is entitled to collate; for exhibition of all grounds of debt and security 
 of the executory funds, for a statement of the intromissions and a general accompting. Mr 
 Erskine is of opinion, that a grandson ought to possess all his father's privileges in this 
 respect, and consequently the right of collation with his uncles ; but by a case decided in 
 1787, it has been found otherwise. Again, collation amongst the younger children lakes 
 place only according to the legilim ; and when it falls to be divided amongst the children, if 
 any of them during the lifetime of their father, or by his bonds of provision, has drawn a 
 share of his effects, it must be accounted for before that child can claim any portion of the 
 legilim, unless the father's purpose of bestowing that provision upon the child as a precipuum, 
 is demonstrable. A similar description of action is necessary for effecting this end, at the 
 instance of the party claiming the benefit against the others. 
 
 By lawj the heir and executor are liable to the creditors of the defunct in pajment of his 
 just debts; but the executor is bound to relieve the heir of the personal debts, in so far us 
 the executory or movable estate extends ; and should the executor have paid an heritable 
 debt, he has the like relief against the heir. Hence actions on these heads occasionally occur, 
 
COURTS OF LAW IN SCOTLAND. 527 
 
 and which may be brought, before making payment. This reciprocal relief is not affected by 
 the settlement containing a clause burthening the heir or executor with debts, such being 
 understood not to confound or alter the rights of heir or executor. Where an heir intromits 
 with the movable estate of the ancestor, without making up a right by confirmation upon 
 inventory, he is said to incur a passive title of vitious intromission, (the intromission with 
 the heritage or rents thereof, being termed gestio pru hcerede), the effect of which is to render 
 him liable for the debts of the ancestor universally ; and its consequences are extended to 
 every intromission, though he be a stranger merely : however, it is put an end to by recent 
 confirmation, inferring an intention to account, which removes the vitiosity, and saves him 
 from being liable beyond the amount of his intromissions. This right is only competent to 
 creditois, and not to the heirs of the deceased, nor to legatees. Actions of this sort are not 
 infrequent before the sheriff. 
 
 An account of the office of commissary, with which the sheriffs are now vested, will be 
 found under the title Cojnmissary Court. 
 
 Sheriff's ministerial duties — By virtue of their ministerial 
 prerogative, it is the duty of sheriffs to execute all writs issued by the 
 court of exchequer, to levy for the king's use, the escheats of those who 
 are denounced rebels, and the blanch and feu rents, casualties of supe- 
 riority, and other duties payable to the crown, for which they must 
 account in exchequer,* and in general to attend to all matters in which 
 the interest of the crown is concerned within their county ; they return 
 juries for the trial of causes before the justiciary and exchequer, and also 
 for civil causes before the jury court. Since the Union, writs for the 
 election of members of parliament are directed to the sheriffs, and in which 
 they are obliged to return the member's name elected, to the crown 
 office, whence they issued. It is likewise their duty to strike the fiars 
 annually ; that is, they fix the prices of grslin of the growth of the several 
 counties, for the preceding crop in the month of February by a jury, and 
 which become the regulating and legal prices by which a variety of cove- 
 nants and transactions are governed. 
 
 All sherifTs, by themselves or their deputies, and other officers and 
 subjects in Scotland, are by actf obliged to be obedient to, and attendant 
 upon the court of exchequer, and are subject to such penalties for neglect 
 of duty, or for any contempt or disobedience, as may be imposed by the 
 court. And the same act empowers the barons to take and pass the 
 accounts of all sheriffs and other officers in Scotland, who have the 
 execution of any process issuing out of the said courts, for the levying of 
 any money for the crown, and to charge and discliarge them in such 
 manner as the said sheriffs and officers, before the Union, were used to 
 be charged and discharged. Of the various exchequer writs, which fall 
 to be executed by sheriffs, the writ of extent, by which debts to the 
 crown are made effectual, merits the most especial consideration, from its 
 having only been introduced into Scotland at the Union, and by which 
 
 * Act 1663, c. 15. t 6 Anne, c. 20. 
 
528 COURTS OF LAW IN SCOTLAND. 
 
 the personal estate of a debtor is often carried off to tlie material disap- 
 pointment of his other lawful creditors. By the treaty of Union tlie 
 English revenue laws were extended to Scotland. In consequence, the 
 court of exchequer was then instituted,* and the forms of recognizance 
 and other securities for the crown debts, and of suits and prosecutions 
 therein directed to be regulated according to the English form. His 
 majesty's prerogative entitles him in Scotland, at common law, to the 
 same preference over the execution of the subject as in England, wherever 
 they stand in equal degree, and therefore the king's execution carries all 
 property of which his majesty's debtor is not at the time completely 
 divested by voluntary conveyance, or against which execution by a subject 
 has not been so completed as to transfer the property: but by statu te,f this 
 general rule was so far restricted that, " if any suit be commenced or 
 taken, or any process hereafter awarded for the king, for recovering of 
 any of the king's debts, then the same suit and process shall be preferred 
 before any person or persons, and the king shall have first execution 
 against any defendants, and for his said effects, before any other person; 
 so always that the Mng'^s said suit be taken and commenced, or a 
 process he awarded for tlie said debt at the suit of the king, before 
 judgment be given for the said person or persons:'''' consequently, a 
 judgment obtained by the subject in a court of law, before the suit of the 
 crown is commenced, or process for the crown debt be awarded, was de- 
 clared to be exclusive of the crown. When there are more extents than 
 one for different duties, they are ranked according to their testes. Under 
 debts to the crown are to be classed not only taxes, including arrears, but 
 penalties, double duties, and engagements of security for collectors : but 
 in this latter case the remedy is an extent in aid, which cannot be taken 
 out against the surety while the principal is solvent. The excise statutes 
 provide in certain cases that the materials and utensils employed in manu- 
 factures, shall be charged with the duties, into whose hands soever they 
 may have come, or by whatever conveyance : and in such cases, the effects 
 remain under a lien to the crown, even after assignment or execution, 
 and independently entirely of priority in proceedings j and the lien even 
 covers double duties, when they are made the penalty for being in arrear. 
 This prerogative is so broad, that debts due by tlie debtors of the debtor, 
 and even by those who are indebted to them, may be taken under it : and 
 even a debtor to the crown who has a debt due to him by another, may, 
 by extent, gain for himself a preference over the other creditors of his 
 debtor, although the crown is in no danger from his own insolvency. But 
 the statute of Anne before noticed, makes an exception of real estates in 
 
 * 5 Anne, c. 2G. f 23 Henry VI IL c. 39. 
 
COURTS OF LAW IN SCOTLAND. 529 
 
 Scotland, in these terms : " Provided that no debt to the crown in Scot- 
 land shall affect any real estate in Scotland, further or otherwise than 
 sucli real estate may be subject thereto by the laws of Scotland ; and the 
 laws of Scotland shall in all such cases hold place," and " the validity and 
 preference of the title of the crown to any honours, manors, lands, or 
 hereditaments, or to casualties belonging to the crown, shall continue to 
 be tried in the court of session by the law and practice of Scotland, and 
 not otherwise." The legitimate inference then is, that the crown's pre- 
 ference does not operate against lands, nor against all the proper heritable 
 estate, rents, annuities, &c., which by the law of Scotland are adjudgable. 
 And it may be held as fixed, that the crown can attain no preference 
 over the heritable estate by any sort of diligence, more than a subject, 
 and will be excluded from ranking on the heritable estate altogether, unless 
 proper diligence for attaching that estate is used. Hence it is a governing 
 principle, that the crown has no preference after a complete transfer and 
 divestment of the property, whether voluntary or judicial; unless in the 
 particular cases of excise liens on the materials and utensils, under special 
 statutes. Again, respecting the king's preference to the hypothec of the 
 landlord for rent, it may be considered as fixed, that this general right of 
 the landlord, however preferable to the diligence of subjects, is of no avail 
 against the crown, and that even after sequestration of a tenant's effects, 
 and a warrant of sale, the proceedings on the part of the crown create a 
 preference over the effects still unsold; nay the court of exchequer has 
 carried this a little farther, and held that the crown has a preference even 
 after the goods have been sold. 
 
 Sheriffs to strike the fiars. — The sheriffs and stewards in their 
 respective jurisdictions have been in the practice for time immemorial 
 to strike the fiars in February : that is, to fix the price of grain for the 
 preceding crop, by which all bargains are regulated, where parties have 
 not fixed any price, or who have expressly referred to the fiars price. 
 The object is to ascertain the correct medium price; and the mode of 
 procedure is regulated by a very special and explicit act of sederunt of 
 the court of session, in these terms : — 
 
 21st December, 1728. — The lords of council and session considering that the use of the 
 sheriff's fiars is to liquidate the price of victual in divers processes that come before them 
 and the subordinate judicatories, and that there is a general complaint that the said fiars are 
 struck and given out by the sheriffs without due care and inquiry into the current and jast 
 prices ; and that when some sheriffs proceed in striking the fiars by way of inquest, yet they 
 get not suflicient evidence to the jury, and that other sheriffs proceed arbitrarily and without 
 any inquest, and some of them entirely neglect to strike fiars, which creates great uncertainty, 
 and much delay and expense in the administration of justice: therefore the said lords do 
 hereby appoint and require the sheriffs of Scotland, and their deputies, yearly, betwixt the 
 4th and 20th February, to summon before them a competent number of persons living 
 within the sheriffdom, who have knowledge and experience of the prices and trade of 
 victual in those bounds, and from them to choose fifteen men, whereof not fewer than eight 
 
 3 X 
 
530 COURTS OF LAW IN SCOTLAND. 
 
 shall be liciitore, to pass upon the inquest, and return their verdict on the evidence under* 
 written, or their own proper knowledge, concerning the fiars of the pi-eceding crops of every 
 kind of victual of the product of that sherifldom, and the said sherifis and their deputes shall, 
 at the same time and place unto which the jury is called, also summon the properest witnesses, 
 and adduce them and all other good evidence before the said jury, concerning the prices at 
 which the several sorts of victual have been bought and sold, especially since the 1st Novem- 
 ber immediately preceding, until that day ; and also concerning the other good grounds and 
 arguments from whence it may rationally be concluded, by men of skill and experience, what 
 ought to be established as the just fiar prices for the said crop; for any person then present, 
 may in open court and not otherwise, and observing due order and respect, oiler information 
 to the jury concerning the premises, and concerning the evidence adduced, or that might be 
 adduced before them ; and if it appear to the sheriff and his deputes, or to the jury, that 
 the adducing of proper evidence has been any way disappointed, or that the evidence ad- 
 duced is defective, the said sheriff or his deputes shall adjourn the jury till a certiiin and 
 proper day, that sufficient evidence may then be laid before them ; and the jury being duly 
 sworn before tlie evidence be entered upon, when the same is concluded, the said jury shall 
 be, and remain enclosed, till they have finished their verdict, which they return signed by 
 their chancellor and clerk, to the sheriff or his deputes, at the time and place fixed for that 
 purpose by the said sherifi' or his deputes where the jury was enclosed; and the said sheri/T 
 or his deputes shall, on or before the 1st day of March, pronounce and give forth sentence 
 according to the said verdict, determining and fixing the fiars prices for the crop preceding 
 of each kind of victual of the protluct of the sheriffdom. And larther, in such shires where 
 the use and custom has been, or where it now may be found needful and convenient to strike 
 diderent fiars, according to the diflerent qualities of the several sorts of victual, the said use, 
 which experience has shown to be good and profitable, shall be continued, or introduced by 
 the several sherill's respectively ; and the said different fiars shall be fixed and determined as 
 the other fiars in manner above mentioned; all which fiars the said sheriff or his deputes 
 shall forthwith record in their books, and their clerks shall give extracts thereof to any 
 person who asks the same, and that for payment of seven shillings Scots money, and no more. 
 And the said lords of council and session, that the administration of justice in the court of 
 session, and subordinate courts, may no longer sutler by the negligence and defects above 
 mentioned, do hereby appoint and strictly require the sheriffs and their deputes and clerks, 
 punctually to observe the premises, and that the same be also observed by the stewards of 
 Kirkcudbright and of Orkney and Zetland, and their deputes and clerks : and that the said 
 sheriffs and stewards and their deputes and clerks, do begin the observation thereof in Feb- 
 ruary next, as they regard and will be answerable for the due execution of their offices. 
 
 Sheriff to read riot act. — Another branch of the sheriff's 
 ministerial duties, is to read the riot act :* this duty is also imposed on 
 justices of the peace and other magistrates. The act provides, that if any 
 twelve persons are unlawfully assembled to the disturbance of the peace, 
 and the sheriff, under sheriff, a justice of the peace, or head officer of a 
 town, shall command them to disperse, and they contemn his orders, and 
 continue for one hour afterwards, the offenders shall suffer death. A 
 constable or peace officer is not vested with this power. The act specifies 
 a form of proclamation, but as it may be made in words " like in effect," 
 any general command is held sufficient; such as, " Our sovereign lord the 
 king chargeth and commandeth all persons being assembled, immediately 
 to disperse themselves, and peaceably depart to their habitations, or to 
 their lawful business, upon the pains contained in the act made in the first 
 
 * 1 Geo. I., c. 5. 
 
COURTS OF LAW IN SCOTLAND. 531 
 
 year of king George I. for preventing tumult and riotous assemblies." 
 God save the King. 
 
 If the persons so unlawfully assembled do not disperse within the hour, 
 any justice, sheriff, mayor, &c., may seize such persons, and carry them 
 before a justice of the peace, and are empowered to command all his 
 majesty's subjects of age and ability to assist. It is a sufficient ground 
 for the interposition of the magistrates, that such features of force, 
 agitation, and disorder, as amount to a disturbance of the public peace, 
 appear in the assembly; and should they proceed to any invasion of 
 property or person, they may be forcibly resisted, suppressed, and taken 
 on the spot, even by the individuals assailed and their assistants, without 
 reading the act or allowing any interval of time; or should the reading of 
 the proclamation be opposed by force, the opposer shall suffer death; and 
 all persons to whom such proclamation ought to have heen made^ know- 
 ing of such obstruction and not dispersing, shall also suffer deatli. Officers 
 and their assistants killing any of the mob in the prosecution of the means 
 to suppress the riot, are indemnified: and if any person so riotously 
 assembled, begin to pull down any building, he is liable to suffer death; 
 though it has been found that destroying the exterior ornaments, or even 
 forcing open doors or windows to get access, does not of itself constitute 
 the crime. The county, city, or burgh, where such disorders sliall hap- 
 pen, are made answerable for the damages sustained by the owners. 
 
 Summary — The office and duty of a sheriff may be summed up with 
 tlie descriptive characteristics given by Skene, in his exposition of legal 
 technicalities. That learned antiquarian quaintly states : " and to the 
 effect they may the better exerce their office, and do justice to every 
 person as effeirs, they sud be good, sufficient, and qualified men, as is 
 statute be king David II., 6th November 1357. In ilk schireffdome they 
 sud doe justice to the kinge's lieges, hauld courtes in lauchfull time, and 
 continew the samine according to law, swa as that actiones and process 
 begun and intented before them sail na waies be delayed throw their 
 negligence, fraude, or malice:* and sud doe justice and full law als weil 
 to puire as to rich, under all paine and charge that may follow. And in 
 brief, all scliireffes and uther ordinar judges, their deputes, and clerkes,f 
 suld knawe, and understand the lawes of this realme and actes of parlia- 
 ment,$ quhairof the execution is committed to their charge, quhilk they 
 sud cause be execute without delay. And sud not only be qualified in 
 judgment and knowledge to minister justice, but also sud have sufficiently 
 of their owen in landes, gudes, and gear, quharin they may be punished, 
 being found culpable in execution of their office."^ 
 
 * SUituto, Robert HI. f James I. c. 45. % James VI., c. 124. § James I., o. 0. 
 
S32 COURTS OF LAW IN SCOTLAND. 
 
 Burgh courts. — Burgh courts are possessed of certain jurisdic- 
 tions by common law as well as by statute. At common law, the 
 magistrates of a burgh are held to possess the same power within their 
 territory as the sheriff within his county. Their criminal jurisdiction 
 extends to petty riots, but none have jurisdiction in blood-wits, except 
 those of Edinburgh, Stirling, and Perth. The provost of Edinburgh is 
 named in all commissions of the peace. The lord provost, magistrates, 
 and town council of Edinburgh, before the late burgh reform had, and 
 indeed still continue to possess, many valuable powers, privileges, and 
 immunities, conferred on them at different times, and by successive sove- 
 reigns. They are judges competent in all personal actions upon contract, 
 bond, bill, obligation, paction, verbal promise, or otherwise, to the greatest 
 extent, whether the process be brought against the debtor himself or his 
 representatives in actions of rent, forthcoming, multiplepoinding, and 
 others of a similar nature. They are competent to the authenticating of 
 tutorial and curatorial inventories, in processes of cognition of debt and 
 payment, and to the registration not only of bonds, contracts, or other 
 deeds which bear a clause of registration in the books df any judge com- 
 petent, but of protests upon bills. They are also competent judges in 
 possessory actions, as removings within burgh, spuilzies, ejections, &c., 
 and in all brieves issuing out of the court of chancery directed to the 
 judge ordinary ; and they have cumulative jurisdiction with the high- 
 admiral, in maritime questions within the port of Leith. Their private 
 jurisdiction as bailies of a royal burgh, is to judge upon the application 
 of indigent prisoners for the benefit of the act of grace, also of prisoners 
 for liberation on account of sickness; in an arrestment of strangers, till 
 they find security for meat, drink, and clothes, furnished to them by the 
 inhabitants of the burgh; and in all matters of police within the burgh. 
 They also exercise a summary civil jurisdiction to the liighest amount, 
 in actions at the instance of drovers, or the like, against butchers, for 
 payment of tiie price of cattle bought at the House of Muir, or West 
 Port for ready money. But this action is only competent when brought 
 within forty-eight days after the sale. And by special statute a power is 
 given them to value and sell ruinous houses, when the proprietors refuse 
 to rebuild or repair them. In virtue of the foresaid royal grants they 
 held justice of peace courts, and judged in all matters within the city and 
 liberties competent to the county justices of the peace.* 
 
 * View of the Office of Sheriff in Scotland, by Robert Clark,— Boyd's Judicial Pro- 
 ceedings before the High Court of Admiralty, the Supreme Commissary Court, and the 
 Sheriff, Bailie, Dean of Guild, Justices of Peace, Baron, and Small Debt Courts in Scot- 
 land, by A. Frazer, S. S. C— Bell's Law Dictionary. — Drummond's Proceedings. 
 
COURTS OF LAW IN SCOTLAND. 533 
 
 The magistrates, &c. of a burgh were formerly elected according to 
 the particular set or act of that burgh, but their election is now regulated 
 by the following act, entituled 
 
 AN ACT TO ALTER AND AMEND THE LAWS FOR THE ELECTION OF THE 
 MAGISTRATES AND COUNCILS OF THE ROYAL BURGHS IN SC0TLAND.-[2SfA 
 August, 1833.] 
 
 Whereas the right of electing the common councils and magistrates of the royal burghs 
 of Scotland appears to have been originally in certain large classes of the inhabitants of such 
 burghs, by the abrogation of which ancient and wholesome usage much loss, inconvenience, 
 and discontent have been occasioned, and still exist ; for redress and prevention whereof, it 
 is expedient that an immediate remedy be applied, and that the close system of election now 
 practised in these burghs should be forthwith abolished, and their ancient free constitutions 
 substantially restored ; be it therefore enacted by the king's most excellent majesty, by and 
 with the advice £md consent of the lords spiritual and temporal, and commons, in this pre- 
 sent parliament assembled, and by the authority of the same, that from and after the period 
 when this act shall ccme into operation, the right of electing the town councils in all such 
 burghs respectively (except in those contained in schedule F,) shall be in and belong to all 
 such persons, and to such only, (except as hereinafter excepted,) as are or shall be qualified, 
 as owners or occupants of premises within the royalty, whether original or extended, of any 
 such burgh, to vote in the election of a member of parliament for such burgh, by virtue of 
 an act passed in the second and third year of the reign of his majesty king William the 
 Fourth, intituled " An act to amend the representation of the people in Scotland," and as 
 are duly registered as such voters in the registers by the said recited act appointed to be kept, 
 and also in all such persons who are possessed of the qualification described in the said re- 
 cited act, in respect of the property or occupancy of any house or other subject therein de- 
 scribed of the value thereby required, within the royalty of any royal burgh not now entitled 
 to send members to parliament : provided always, that all such electors who may be quali- 
 fied as hereinbefore provided shall have resided for six calendar months next previous to 
 the last day of June in this and all future years within the royalty of such burgh, or within 
 seven statute miles of some part thereof: provided also, that no person shall be entitled to 
 vote who has been in the receipt of parochial relief, or who has been a pensioner of any cor- 
 poration, within twelve months of any such annual election, or for any burgh of which he 
 may have been town clerk at the time of such election, or at making up the list or roll of 
 electors with a view to such election. 
 
 IL Every person claiming to be entitled to vote in the election of the council of any 
 ro3al burgh not now entitled to send members to parliament, shall, on or before the twen- 
 tieth day of September in the present, and the twenty-first day of July in any succeeding 
 year, give in his claim, subscribed by himself or his agent, to the town clerk of such burgh, 
 such claim being in the form, as nearly as may be, of the first part of schedule A, together 
 with any written title or other evidence he may choose to produce along with such claim ; 
 and such town clerk, immediately on receiving such claim, shall mark upon it the date 
 when it was delivered to him, by filling up, as nearly as may be, the form of the second 
 part of the said schedule A, and within four days after the last day for receiving such claims, 
 and after consulting with the provost or chief magistrate of such burgh, shall give or cause 
 to be given intimation of all such claims, by affixing on the church doors of the several 
 parishes within the royalty of such burgh, fourteen days at least before the time when such 
 claims are intended to be taken into consideration, a written or printed list of all such 
 claimants, together with a notice specifying the place where, and the day and the hour at 
 which, such claims are to be considered ; and the said notice shall also bear that any objec- 
 tion to such claims will be at the same time taken into consideration, provided such objec- 
 tions shall be lodged with the town clerk, and intimated to the party objected to, by either 
 delivering a copy of the objection to him personally, or leaving the same at his dwelling- 
 house, or transmitting it to him by post, seven days previous to the day appointed for con- 
 sidering the same, and deciding upon such claims (all such objections being signed by the 
 party objecting or his agent, and being drawn up, as nearly as may be, in the form of the 
 
534 COURTS OF LAW IN SCOTLAND. 
 
 schedule B ;) and the persons claiming, and the persons objecting to such claim, shall have 
 access to see such claims and objections in the town clerk's office at all seasonable houi:s, 
 without payment of any fee for such inspection, and to obtain extracts therefrom, paying for 
 any copy or extract of the same at the rate of sixpence for every seventy -two words : pro- 
 vided always, that every such chief magistrate shall be obliged, within fourda)S after the 
 said twenty-first day of July, to fix on and communicate to the town clerk a day for taking 
 such claims and objections into consideration, which day shall not be less than twejity or 
 more than twenty-five days after the said twentieth day of September in the present and 
 the said twenty-first day of July in all future years, 
 
 in. The provost or chief magistrate, or in case of his absence or disability, the senior 
 magistrate capable of attending in each such burgh, shall, if required by any three or more 
 persons claiming or objecting as aforesaid, previous to the day appointed for the considera- 
 tion of such claims and objections, make choice of and appoint a person of the profession of 
 the law to be an assessor or assistant to him in the decision thereof, such assessor being 
 always an advocate, or a writer to the signet, or a solicitor of supreme courts, or a procura- 
 tor in the inferior courts, of not less than three years' standing respectively ; and such pro- 
 vost or chief or senior magistrate and assessor shall, at the hour appointed, proceed to con- 
 sider the claims and objections lodged, and shall hear the parties or their agents thereupon, 
 and receive all competent evidence which either party may produce in support of his claim 
 or objection respectively, but no written pleadings shall be admitted, nor any record kept 
 of the proceedings, except that the magistrate or assessor shall make a note of the witnesses 
 who may be examined, and authenticate by his signature any document or written evidence 
 which may be produced ; and no other witnesses shall be examined, and no other documents 
 produced, in any court of review, than those so noted and authenticated ; and, where satis- 
 fied that the claim is good, the said magistrate shall write thereon tlie word "admit," and 
 sign his name thereto, and, where satisfied that the claim is bad, he shall write thereon the 
 word " reject," and sign his name thereto ; and, where the claim shall be sustaii ed, the 
 claimant's name shall be enrolled or entered by the town clerk of such burgh in the list or 
 roll of electors to be kept for such burgh in maimer hereinafter directed. 
 
 IV. The respective town clerks of each royal burgh sliall, on or before the twentieth day 
 of October in the present and on or before the sixteenth day of September in all future 
 years, make up and complete a list or roll of persons entitled to vote in the election of the 
 common council of such burgh in manner following ; videlicet, the town clerk of each burgh 
 which, in virtue of the said recited act, sends either severally, or in combination with any 
 other burgh or burghs, a member or members to parliament, shall make up and complete 
 such list by transferring from the parliamentary register for such Jmrgh to such list or roll 
 the names of all the voters contained in such register entitled to vote in tlie election of a mem- 
 ber of parliament as are so registered in respect of properties situated within the royidty, 
 whether original or extended, of such burgh, without requiring any claim, or admitting any 
 objection against the persons so registered ; and the respective town clerks of such of the 
 royal burghs as do not now send or contribute to send a member to parliament, shall, in like 
 manner, make up a complete list or roll of all the persons, qualified in manner aforesaid, 
 who shall have been admitted as electors by the chief or senior magistrates of such burghs 
 respectively in manner hereinbefore directed. 
 
 V. Each town clerk shall, in every succeeding year, keep his list or roll of electors in the 
 town clerk's office, or other place appointed for keeping the records of such burgh, accessible, 
 without fees, at all seasonable hours, from the first to the tenth day of August; and within 
 five days after the last of these da}S any person intending to object to the continuance of any 
 name on the said list or roll in any burgh not contained in the said recited act, shall be 
 bound to give in his objections to such town clerk, in the same way and manner, and to be 
 disposed of by such town clerk and provost or chief or senior magistrate and assessor in all 
 respects, as objections against original claims are hereinbefore and after directed to be dig- 
 posed of; and earh town clerk in such burghs shall, on or before the tenth day of September 
 in each such year, proceed to correct and complete such list or roll of electors by removing 
 therefrom all the names to which such objections shall have been sustained, and also tl»e 
 names of any persons wb(j may be known to have died since such list or roll was last com- 
 
COURTS OF LAW IN SCOTLAND. 535 
 
 jtleted, and shall also insert in such list or roll the names of any persons who shall respectively 
 have been admitted as electors by the provost or chief or senior magistrate of such burghs 
 respectively, in manner hereinbefore directed ; and each town clerk in the burghs contained 
 in the said recited act shall, in like manner, correct and complete his list of electors, on or 
 before the sixteenth day of September, by removing therefrom the names of such as may 
 have died, and adding the names of those who may have been inserted in the register ap- 
 pointed by the said recited act since it was made up in the previous year, in respect of pre- 
 mises situate within the royalty of any such burgh ; and all persons interested shall be en- 
 titled to extracts from the said lists, paying the town clerk for every extract at the rate of 
 sixpence for every seventy-two words contained therein. 
 
 VL If either party shall be dissatisfied with the decision of the provost or chief magis- 
 trate and assessor, admitting or rejecting any claimant for the right of electing councillors, 
 in any burgh not contained in the said recited act, it shall be competent to such party, with- 
 in two dajs of the date of the decision, but not thereafter, to appeal to the court of review 
 appointed by the said recited act for deciding upon appeals as to the registration of voters 
 for members of parliament for the district within which such burgh may be situate, the 
 appellant always giving notice, within the time above specified, to the town clerk of such 
 burgh and to the opposite party, of such appeal, the notice to the said party being either de- 
 livered personally, left at his dwelling place, or transmitted through the post office, and pro- 
 ducing to the court of appeal evidence of such notice before such appeal shall be heard ; and 
 to shall be competent for such court of appeal, if it shall affirm the judgment appealed from, 
 to find expenses due by the appellant, and to decern for the same •, and upon production of 
 the judgment of such court, or an extract thereof, to the town clerk, keeper of the list or 
 roll of electors of such burgh, such town clerk shall forthwith, where necessary, alter and 
 correct such list or roll in accordance with the judgment of such court; and the sherifls act- 
 ing in such courts of appeal shall always proceed to the consideration of appeals under this 
 act immediately after they have disposed of all the appeals under the said recited act, and 
 shall be entitled to add the periods of time during which they may be exclusively occupied 
 with the said appeals under this act to the periods occupied with the said other appeals, and 
 to make the same charges for the time so occupied in their accounts in exchequer as is by 
 the said recited act provided as to the said other appeals. 
 
 VIL The several burghs contained in the schedule marked C to this act annexed shall 
 be divided into wards or districts, which, together with the number of councillors to be 
 chosen by each such ward or district shall be fixed and ascertained by the commission- 
 ers named and appointed by his majesty to inquire into and report upon the condition of 
 the several burghs and towns of Scotland by virtue of a commission dated on the fifteenth 
 day of July in the present year; and such commissioners shall have regard to its being the 
 purport and meaning of this act that the number of wards shall be such that each ward 
 shall, at the first election to be made under this act, choose, as nearly as may be, the num- 
 ber of six councillors, and at the subsequent annual elections in each succeeding year the 
 number of two councillors ; and the said commissioners shall, upon such division being made 
 and completed, report the same to his majesty's privy council, who shall cause such report to 
 be published by royal proclamation in the gazette ; and the number and limits of such dis- 
 tricts, and the number of councillors to be elected by each such district, being so fixed, re- 
 poi ted, and published, shall be held and taken to be a part of this act, in the same manner 
 and to the same effect as if the same were particularly set forth and enacted herein. 
 
 VIIL With and under the exceptions hereinafter provided, upon the first Tuesday of 
 November next the electors qualified and entered in the list or roll made up as aforesaid 
 shall, in each of the said royal burghs not contained in schedule F, choose from among such 
 of their own number as either reside within the boundaries assigned to such burgh by tlie 
 said recited act, or as may carry on business or reside within the royalty thereof, such a 
 number of councillors as by the set or usage of each burgh respectively at present consti- 
 tutes the common council of such burgh, or where such number admits of variation, then 
 the smallest number which may by the existing set and usage constitute a full council in 
 any such burgh, in manner following ; that is to say, in all such burghs as are contained in 
 the said schedule C, and divided into wards or districts as aforesaid, the qualified electors of 
 
536 COURTS OF LAW IN SCOTLAND. 
 
 ear'.h district wliose names shall be in the said h'st or roll of such electors shall, at some place 
 or places to be appointed for each such ward or district, of which intimation shall be made 
 by notice affixed on the church doors of the several parishes of such burgh ten days at least 
 previous to such election, proceed to elect, from and among the persons contained in the list 
 or roll of the whole electors for such burgh, as many councillors for such burgh, being either 
 resident or personally carrying on business as hereinbefore provided, as shall, by the report 
 of the commissionei-s aforesaid, and the proclamation thereof aforesaid, have been fixed and 
 ascertained as the number of councillors to be elected in each such ward, by open poll, to be 
 taken in the presence of the provost or chief or senior magistrate of such burgh, or of a legal 
 substitute or substitutes to be appointed by him to officiate and preside at the polling place or 
 polling places in each such ward or district, from among the persons of the law described and 
 qualified as aforesaid in relation to the assessor to be appointed by any chief magistrate, to judge 
 of the claims of enrolment to be made as aforesaid ; and the town clerks of such burghs, or the 
 persons who may be appointed by the provost or chief magistrate thereof to officiate as poll 
 clerks in the several wards thereof, which persons such provost or chief magistrate is here- 
 by authorized to appoint, shall each have with him a certified copy of that part of the fore- 
 said list or roll which contains the names of the voters qualified in respect of property situate 
 In each such district, according to which the votes shall be taken ; and it shall not be com- 
 petent at such poll to inquire into any other facts but the identity of the party tendering a 
 vote and the person mentioned in the list or roll, his siill holding the qualification there 
 mentioned, and his not having previously voted at the same election ; all which facts it shall 
 only be competent to prove by the oath of the party so tendering his vote, if required by 
 any other voter on the list or roll; and no other oath shall be put at such election ex- 
 cept only an oath against bribery, which, if required by any voter on the roll, shall also be 
 put by the magistrate or substitute at each polling place ; which two oaths shall be put in 
 the form of schedules D and E; and each poll clerk shall enter each vote for each pei"son 
 proposed in a poll book, and the provost or chief magistrate or substitute presiding at such 
 election, and the clerk or person taking the poll, shall subscribe their names to each page of 
 such book before any entry shall be made in the succeeding page. 
 
 IX. No poll by this act authorized shall be kept open for more than one day, and that 
 only between the hours of eight in the morning and four in the afternoon, it being compe- 
 tent to the town clerk to appoint as many polling places in each Avard, and as many booths or 
 divisions at each polling place, as may be necessary for completing the said elections within 
 the said period. 
 
 X. At all such elections of councillors for the burghs contained in the said schedule C 
 the poll books for the several wards or districts of the said burghs shall, at the close of the 
 poll, be sealed up by the persons who shall have presided at the elections of the several A%'a,rds 
 and taken the polls thereat, and shall be transmitted to the provost or chief or senior magis- 
 trate, who, on the next lawful day after the receipt of the same, between the hours of twelve 
 and two, and within the town house or other public building of such burgh, shall openly 
 break the seals, and with the assistance of the town clerk, and such other persons as he may 
 think fit to employ, shall cast up the votes given, and shall declare upon whom the election 
 has fallen by the majority of votes (making a double return in any case where the votes 
 shall be equal), and shall forthwith give, or cause to be given, notice in writing to the seve- 
 ral persons elected of such their election, and require them severally to appear in the town 
 hall, or other public room aforesaid, on the second lawful da} after such election, when they 
 shall severally declare whether they accept or decline accepting the office of councillor ; and 
 if any such person shall be found to have been elected by more than one of the said wards or 
 districts, he shall thereupon declare for ■which ward he intends to serve; and wherever this 
 shall occur, or where there shall be a double return for any ward, or where any pei*son 
 elected shall decline accepting, then and in all such cases the presiding magistrate shall im- 
 mediately appoint a new election of a councillor or councillors in place of him or them so 
 chosen elsewhere and so declining, at the distance of not more than four nor less than two 
 days, and affix notices of the day so appointed on the church doors of the burgh ; and such 
 election shall be proceeded in, in all respects in the same manner in which the first election in 
 the said wards or districts, and the t;»king the poll, casting up the votes, and declaring the 
 
COURTS OF LAW IN SCOTLAND. 537 
 
 result, is liereinbefore directed to proceed, until the council of such burgh shall be com 
 pleted. 
 
 XL Upon the said first Tuesday of November next, the qualified electors of all the said 
 royal burghs, not contained in the said schedules C or F, shall assemble in the town hall or 
 other public room of such burgh, and choose from among their own number such and the 
 like number of councillors, being resident or personally carrying on business, as hereinbe- 
 fore provide<l, as by the set or usage of such burghs respectively at present constitutes the 
 common council of such burgh, or, where this is variable, the smallest number constituting 
 a full council, and shall declare their votes by a list containing the names of the persons for 
 whom each elector respectively intends to vote, which several lists shall be signed by each such 
 elector respectively, and shall be openly given in by each elector to the town clerk of such burgh 
 on the day of election ; and such town clerk, together with the provost or chief or senior at- 
 tending magistrate of the burgh, who shall preside at such election, no other inquiry being 
 permitted, or other oath allowed to be tendered than as hereinafter provided as to the burghs 
 ■ in schedule C, shall publicly cast up the number of votes, and shall declare upon whom the elec- 
 tion has fallen by the majority of votes •, and the provost or chief or senior magistrate shall forth- 
 with give or cause to be given notice in writing to the several councillors elected of such their 
 election, and call upon them severally to appear in the town hall or other public room afore- 
 said on the second lawful day after such election, when they shall severally declare whether 
 they accept or decline accepting the office of councillor ; and if any such person so elected 
 Ehall decline to accept, or in case there shall be an equality of votes in favour of two or more 
 persons the whole of whom c mnot be received as councillors, a new election shall immedi- 
 ately thereafter take place for the vacant place or places of the councillor or councillors so 
 declining to accept, or elected by equal numbers, to be intimated as hereinbefore provided as 
 to the burghs in schedule C, and to proceed in the same manner in all respects in which the 
 election for councillors is hereinbefore directed to proceed, until the council of such burgh 
 shall be completed. 
 
 Xn. Nothing in this act contained shall be held to afiect or apply to the several burghs 
 contained in schedule F to this act annexed; but the election of councillors and magistrates 
 in all the burghs contained in the said schedule F shall proceed and be conducted in the way 
 and manner hitherto practised in such burghs, and as if this act had not been passed. 
 
 XIIL In all the cases of election hereinbefore directed, if any person elected as council- 
 lor shall fail to attend on the day appointed for declaring his acceptance, he shall be held to 
 have declined accepting the said office, unless he then transmit to the meeting a sufficient 
 written explanation, signed by himself or his agent, of the cause of his absence, and inti- 
 mating his acceptance. 
 
 XIV. No person shall be entitled to be received and inducted as councillor who shall not, 
 previous to such induction, be entered a burgess of the burgh for which he is so elected, 
 wherever there is any body of burgesses in any such burgh ; and each such person so elected 
 shall produce, when he declares his acceptance, the evidence of his being such burgess; and 
 his omission so to do shall be held to vacate his election in the same manner as if he had de- 
 clined to accept : provided always, that no merely honorary burgess shall be entitled to be 
 so inducted, and that any person so elected shall be forthwith entitled to be entered as a bur- 
 gess on payment of the ordinary fees. 
 
 XV. Upon the first Tuesday of November one thousand eight hundred and thirty-four, 
 and in every succeeding year, the electors in such burghs shall in like manner, videlicet, the 
 burghs contained in the said schedule C in their several wards or districts, and the other 
 burghs at their general meetings, assemble and elect, in manner hereinbefore prescribed in 
 relation to the first election under this act, one third part, or as nearly as may be one third 
 part, of the council of such burghs, in the place of the third thereof who shall, as herein- 
 after directed, go annually out of office, the wards or districts into which the burghs con- 
 tained in the said schedule C are divided then electing such number of councillors as by the 
 said royal commission such wards or districts shall be directed to elect at such annual elec- 
 tions subsequent to the first election. 
 
 XVL Upon the said first Tuesday of November in the year one thousand eight hun- 
 <<red and thirty-four, and in every succeeding year, one third, or a number as near as may 
 
 3 T 
 
53^ COURTS OF LAW IN SCOTLAND. 
 
 be to one third, of the whole couucil of each such burgh, shall go out of office ; and in the 
 said year one thousand eight hundred and thirty-four the third who shall go out shall consist 
 of the councillors who had the smallest number of votes at the election of councillors in this 
 present year; and in the succeeding year, one thousand eight hundred and thirty-five, 
 the third of the councillors first elected under this act who shall go out shall consist of the 
 councillors who at such first election under this act had the next smallest number of votes, 
 (the majority of the council always determining, where the votes for any such persons shall 
 have been equal, who shall be the persons to retire,) and thereafter the third of the coun- 
 cillors so annually going out of office shall always consist of the councillors who have been 
 longest in office : provided always, that any councillors so going out of office shall be Ciipa- 
 ble of being immediately re-elected. 
 
 XVIL The councillors of all such burghs not contained in schedule F to this act an- 
 nexed respectively so elected and accepting shall, upon the third lawful day after the elec- 
 tion of the whole number of sucli councillors in the present year, assemble in the town hall 
 or other usual public place of meeting within such burgh, and shall there by a plurality 
 of voices (the councillor who had the greatest number of votes at the election of council- 
 lors having a casting or double vote in case of equality), elect from among their own number 
 a provost or chief magistrate, the number of baillies fixed by the set or usage of sucli burgh, 
 a treasurer, and other usual and ordinary office bearers now existing in the council by the 
 set or usage of each such burgh, and shall also elect the managere of any cliaritable or other 
 public institution existing in or connected with such burgh, the appointment of the mana- 
 gers to which is at present vested in the magistrates and town council of such burgh. 
 
 XVIIL With and under the exception hereinafter enacted, upon the completion of the 
 first election of councillors, magistrates, and office bearers to be made in all the royal burghs 
 in Scotland under the provisions of this act, and not sooner, the provost, magistrates, office 
 bearers, and other councillors now in office in such burghs respectively shall go out, and 
 their Avhole powers, duties, and functions shall cease and determine, except only where any 
 of the said persons shall have been again elected under the provisions of this act. 
 
 XIX. Except as hereinafter excepted, the offices and titles of deacon, and of convener 
 find dean of guild, and of old provost and old baillie, as official and constituent members of 
 any town council, shall, after the completion of the first elections under the provisions of 
 this act, cease and determine, and no distinction shall afterwards be kept up or recognized 
 between trades baillies and merchant baillies, or tmdes councillors and merchant councillors, 
 in any such council : provided always, that (except as hereinafter excepted) the duties and 
 functions heretofore performed by the dean of guild in such council, or in an}- dean of guild 
 court of such burgh, shall, in all the burghs where there now is such an officer, be performed 
 by a member of the council to be elected, in manner hereinbefore provided, by the majority 
 of councillors. 
 
 XX. Where any trust, management, or direction is by the terms of any public or 
 local act, or of any charter or deed of foundation, or other deed, conferred on any 
 members of the council under the denomination of old provost, old baillie, or old dean 
 of guild, or of merchant or trades baillies or merchant or trades councillors, respect- 
 ively, the town councils to be named and elected in terms of tiiis act shall, immediately 
 after their own acceptance and induction into office, nominate and elect from their own 
 body such a number of persons to be such trustees, managers, or directors as are by such 
 acts, charters, or deeds appointed to those offices under the said denominations ; and the 
 whole powers and functions now belonging to the said offices of trustees, managers, or di- 
 rectors shall belong to and be as fully vested in the persons so elected as if they had possessed 
 the denominations used in the said acts, charters, or deeds. 
 
 XXI. Nothing herein contained shall be held or construed to impair the right of any 
 craft, trade, convenery of trades, or guildry, or merchants house or trades house, or other 
 such corporation, severally to elect their own deacons or deacon convener, or dean of guild 
 or directors, or other lawful officers, for the management of the affairs of such crafts, trades, 
 conveneries of trades, or guildries, merchants or trades houses, or other such corporations; 
 but that, on the contrar}, the said several bodies shall, from and after the passing of this act, 
 be in all cases entitled to the free election in such form as shall be regulated by tliem of the 
 
COURTS OF LAW IN SCOTLAND. 539 
 
 siiid several office bearers, and other necessary officers for the managenrent of their aflfairs, 
 without any interference or control whatsoever on the part of the town council or any mem- 
 ber thereof. 
 
 XXIL From and after the time when this act comes into operation the persons elected 
 (or to be elected) as hereinbefore provided to the offices of dean of guild and deacon con- 
 vener, or convener of trades, by the convenery and guild brethren respectively in the city 
 of Edinburgh, and to the offices of dean of guild and deacon convener by the merchants 
 house and trades house respectively in the city of Glasgow, shall, in virtue of their said elec- 
 tions by the said guild brethren, convenery, merchants house, and trades house respectively, 
 be constituent members of the town councils of the said cities, and shall enjoy all the powers, 
 and perform all the functions now enjoyed or performed by such office bearers in these 
 cities; and in like manner the persons elected (or to be elected ) to the offices of deans of 
 guild by the several guildries of the city of Aberdeen and the towns of Dundee and Perth 
 shall, in virtue of such their elections, be constituent members of the town councils of the 
 said city and burghs respectively, and shall as such enjoy all the powers and perform all the 
 functions now exercised or enjoyed by the existing deans of guild in the said city and burghs 
 respectively; and the registered electors, qualified as hereinbefore provided, in the said 
 cities and burghs of Edinburgh, Glasgow, Aberdeen, Dundee, and Perth shall, in Novem- 
 ber in the present year and in all future years, elect only such a number of councillors as, 
 with the addition of the said deans of guild and conveners to be so elected as aforesaid, make 
 up the number of councillors now existing in the said several cities and burghs ; and the 
 councillors so elected in the said cities and burghs of Edinburgh, Glasgow, Aberdeen, 
 Dundee, and Perth shall not, at the subsequent election of magistrates and office bearers, 
 elect any other persons to fill the offices or perform the functions of deans of guild or con- 
 veners, but these offices shall be held and exercised, in the said councils and olhenvise, by 
 the persons so elected as aforesaid in the said cities and burghs of Edinburgh, Glasgow, 
 Aberdeen, Dundee, and Perth respectively, and by no other persons. 
 
 XXIII. Where any trust, management, or direction of any charitable or other institu- 
 tions is vested in any number of deacons, or in a deacon convener, or convener of trades, or 
 in any dean of guild, or other office bearers elected or hereafter to be elected by the several 
 crafts, trades, guildries, or merchants, or trades houses, then and in all such cases the per- 
 sons so elected as such deacons, conveners, deans of guild, or other officers shall always be 
 and continue trustees and managers of such charities or institutions, whether such persons 
 shall hereafter be members of council or not ; and the town councils shall in no such case 
 have power to elect from their own body any other trustees or managers in place of such 
 deacons, conveners, deans of guild, or other officers : provided always, that in any burgh in 
 which trades councillors or merchant councillors are or may be ex officio trustees or direct- 
 ors of any such institutions or charities, the convenery or tra'es house and the guildry or 
 merchants house in such burghs shall elect an equal number from their own bodies re- 
 spectively to be such trustees or directors, anything herein contained to the contrary not- 
 withstanding. 
 
 XXIV. When any magistrate or office bearer (other than the provost or chief magis- 
 trate and treasurer) shall be in the third of the council going out of office, tlie place of such 
 magistrate or office bearer shall be supplied by election by the council as soon as the full 
 number thereof shall have been completed by the annual election of the third then hereby 
 directed to take place, the said election to be made by plurality of voices, and the chief or 
 senior attending magistrate to have a double or casting voice in case of equality : provided 
 always, that the provost or chief magistrate and the treasurer shall always remain in office 
 for the period of three years, and that they, as well as all the other magistrates or office 
 bearers, shall at all times be capable of being re-elected. 
 
 XXV. If any vacancy shall in the course of the year occur in the council or magistracy 
 or office bearers of any such burgh by death, disability, or resignation, the same shall be 
 filled up ad interim by the remaining members of the council, by election, as hereinbefore 
 provided, at a meeting to be called on five days' notice by the town clerk, by intimation in 
 writing to each of such remaining members of the council ; but any councillor, magistrate, 
 or office bearer so elected ad interim shall go out of office on the first Tuesday of November 
 
540 COURTS OF LAW IN SCOTLAND. 
 
 Jiext ensuing his election, and the vacancy thereby occurring shall be supplied at the nexi 
 annual election of councillors and magistrates or office bearers in such burgh ; provided that 
 if the vacancy shall have occurred in any burgh contained in the said schedule C, such 
 vacancy shall at such annual election be supplied by the ward of such burgh by which the 
 councillor who had died or resigned, or been disabled, had been elected, and which shall in 
 this case elect an additional councillor, unless the party so dying or disabled would then have 
 gone out of office as one of the third hereby directed to retire. 
 
 XXVL Any person elected and accepting the office of councillor, magistrate, or other 
 office bearer in any town council, under the provisions of this act, may resign his said office 
 at any time, upon giving not less than three weeks' notice of such his intention by a written 
 intimation to the town clerk or chief or senior magistrate ; and in the event of such, re- 
 signation being intimated as to be made at the period of the annual retirement of one-third 
 of the council, such additional number of councillors shall then be elected as may be neces- 
 sary to complete the council : provided always, that no fine or other penalty shall be exigible 
 from any person either declining to accept after his election or subsequently resigning his 
 
 XXVIL Where any rojal burgh shall, in consequence of the decision of a court of law 
 or otherwise, be without any legal council or magistracy at the time when this act comes 
 into operation, or at any future time, all the functions directed by this act to be performed 
 by the existing magistrates or councils shall be performed by one or more of the managers, 
 who may, by any lawful appointment, be then in the actual administration of the SL&'ahs of 
 any such burgh. 
 
 XXV I IL No councillor, nor the partner in business of any councillor, shall be capable 
 of holding the office of town clerk in any such burgh ; and no town clerk shall, during 
 the period he shall hold that office, interfere directly or indirectly in Uie election of the 
 magistrates or town council of any such burgh. 
 
 XXIX. All the notices or intimations hereby directed or required to be given or made 
 in any such burgh of any meetings or proceedings to be held or liad in the matter of the 
 elections of or respecting such burgh, shall, where not directed to be otherwise given, be 
 given or made by the respective town clerks thereof. 
 
 XXX. The several persons officiating at elections as substitutes for the provosts or chief 
 magistrates in the several wards or districts into which the burghs contained in the said 
 schedule C shall be divided (not being the town clerks of such buighs), shall be entitled to 
 receive a sum not exceeding three pounds three shillings for each day they shall respectively 
 be so employed, the poll clerks officiating at such elections being each entitled to the sum of 
 one pound one shilling for each day, and the several persons who shall be appointed to assist 
 the provost or chief magistrate of any of the royal burghs as assessors in disposing of claims 
 and objections as aforesaid (not being the town clerks of such burghs) shall be paid a like 
 sum, not exceeding three pounds three shillings, each day such persons shall be so employed ; 
 which sum, together with all the other expenses attending sucli elections, or the making up 
 of the lists or rolls of electors, giving notices at the church doors, and providing copies of the 
 said rolls, or parts thereof, for the purposes of election, shall be defrayed from the common 
 good or other means or revenues of such burghs respectively. 
 
 XXXI. The magistrates and coiuicil and office bearers to be elected under the pro- 
 visions of this act, shall, in all respects, stand in relation to the administration of the aflairs 
 and property of such burghs, or of property under the care and management of such burghs, 
 in the same situation in whicli the magistrates and council and office bearers of such burghs 
 did stand previous to the passing of this act ; and the magistrates and council and office 
 bearers to be elected imder the provisions of this act, shall have such and the like jurisdic- 
 tion, and the same rights and powers of administration of the property and aflairs of the 
 burgh, and of making all usual and necessary appointments, as heretofore lawfully belonged 
 to and was exercised by their predecessors in office ; any thing in the set, usage, or custom 
 of any such burgh to the contrary notmthstanding. 
 
 XXXII. The existing magistrates and council in all royal burghs shall, on or before the 
 fifteenth day of October in the present and in all future years, make up a distinct 
 tOate of their affairs, subscribed by the chief or senior magistrate, town clerk, and treasurer^ 
 
COURTS OF LAW IN SCOTLAND. 641 
 
 containing an account of all the funds, properties, and revenues in their administration, and 
 of all their transactions in relation to such funds, properties, and revenues since they came 
 into office ; which amount shall be brought down as nearly as may be to the said fifteenth 
 day of October, and shall be kept in the town clerk's or treasurer's office, for the inspection 
 of any of the registered electors, from the said fifteenth day of October down till the time of 
 the election ; and a full and distinct abstract of the said account, with a balance sheet, con- 
 taining all necessary particulars, shall be printed and published by the said magistrates on 
 or before the twentieth day of the said month of October. 
 
 XXXI IL No councillor or magistrate elected and accepting under the provisions of this 
 act, shall incur by such election or acceptance any other responsibility for the debts of the 
 burgh, or the acts of his predecessors in office, than might have attached to him as a burgess 
 or inhabitant, independently of such election. 
 
 XXXIV. If any magistrate, councillor, town clerk, sheriff, or other person shall wilfully 
 contravene or disobey the provisions of this act, he shall be liable to be sued for such offence 
 in the court of session by any person aggrieved for the penal sum of three hundred pounds ; 
 which sum, or any smaller sum which may be assessed by the jury in any such action, the 
 defender, upon conviction, shall pay to the pursuer with full costs of suit: provided always, 
 that every such action shall be raised within four calendar months after the cause of action 
 shall have arisen, and that notice in writing shall be given to the defender at least one calen- 
 dar month before raising the same : provided also, that any such defender against whom 
 judgment shall have been once recovered in such action shall be entitled to plead such judg- 
 ment as a bar to any other action which may be brought against him for the same matter 
 or thing ; and such other action being thereupon dismissed, such defender shall recover his 
 full costs of suit. 
 
 XXXV. No misnomer or inaccurate description of any pereon or place in any writing 
 made in the form of any schedule to this act annexed, or in any list or register or notice, or 
 other writing, made under authority of this act, shall in any way prevent or abridge the 
 operation of this act ; provided that such person or place shall be so designated in such 
 writing, list, register, or notice as to be commonly understood. 
 
 XXXVI. All laws, statutes, and usages now in force respecting the royal burghs in that 
 part of Great Britain called Scotland, shall be and the same are hereby repealed in so far 
 as they are inconsistent or at variance with the provisions of this act, but in all other re- 
 spects the same shall remain in full force and effect : provided always, that the oath termed 
 ».he burgher oath shall in no case hereafter be required to be taken in any burgh. 
 
 XXXVII. No irregularity or nullity in the election of any councillor or magistrate shall 
 in any case, after the passing of this act, annul or affect the election of other councillors or 
 magistrates not liable to the same grounds of objection, but those particular elections only in 
 which such irregularity or nullity shall have occurred. 
 
 XXXVIII. This act maybe repealed, altered, or amended by any act or acts to be 
 passed in the present session of parliament. 
 
 SCHEDULES TO WHICH THE FOREGOING ACT REFERS. 
 
 SCHEDULE A. (Part 1.^ 
 
 City [or burgh] of 
 I A. B. [insert designation] hereby claim to be enrolled as a voter for the town councillors 
 of the said city [or burgh] in respect of my interest in the house, shop, et ce^ffra, situated in 
 [here insert the situation of the premises, described by the street^ number, jmrish, or other 
 locality'] ; and [in cases ivhere the claimant chooses to make such production] in support of my 
 rlaim I produce herewith a [disposition, seisin, lease, et cetera, dated, et cetera, as the case 
 may be.] 
 
 [Date.] (Signed) A. B. 
 
542 COURTS OF LAW IN SCOTLAND. 
 
 SCHEDULE A. (Part 2.) 
 
 Number lodged with me C. D., town clerk of tliis day 
 
 together with the disposition, seisin, lease, et eelera^ above 
 written [in cases where any such documents are lodged.] 
 
 (Signed) C. D. 
 
 SCHEDULE B. 
 City [or burgh] of 
 I A. B. \or we C. D., E. F., et cetera,] object to the claim of A. B. to be admitted [or to 
 (wntinue on the roll] as a voter for councillors in the city [or burgh] of on 
 
 the following ground [here may be stated shortly the grounds, as that jrroperty or occupancy 
 not of sufficient value, that the party is not or has ceased to be proprietor, tenant, or occupant, 
 or is personally disqualified, as being a minor, a fatuous j)erson, et cetera] ,• and I crave to be 
 heard on the said objection or objections before the chief magistrate or assessor. 
 
 [Date.] (Signed) A. Ti. 
 
 SCHEDULE C. 
 
 Edinburgh. J Perth. 
 
 Glasgow. J Dunfermline. 
 
 Aberdeen. j Dumfries. 
 
 Dundee. J Inverness. 
 
 SCHEDULE D. 
 
 I A. B. do solemnly swear [or affirm], that I am the individual described in the list or 
 roll for the city [or burgh] of as A. B. of 
 
 [here insert description in the same words as contained in the roll] ; 
 that I am still the proprietor [or occupant] of the property for which I am so enrolled, and 
 hold the same for my own benefit, and not in trust for, or at the pleasure of, any other per- 
 son ; and that I have not already voted at this election. 
 
 SCHEDULE E. 
 
 I A. B. do solemnly swear [or affirm], that I have not received or had, by myself or any 
 person for my use or benefit, any sum or sums of money, office, place, or emplo} ment, gift, 
 or reward, or any promise or security for any money, office, or gift, in order to give my 
 vote at this election. 
 
 SCHEDULE F. 
 
 Dornoch. 
 New Galloway. 
 Culross. 
 Lochmaben. 
 Bervic. 
 
 Wester Anstrutlici 
 Kilrenny. 
 Kinghorn. 
 K into re. 
 
 Dean qv guild court, — Gild is an old Saxon word signifying 
 fraternity. The dean of guild was instituted after the example of certain 
 cities in France and Flanders, where bourses were constituted. Bourse 
 signifies an exchange, or " that place where merchants most do congre- 
 gate," for negotiating and transacting business. According to an old 
 law, power was conferred on the dean of guild to judge in mercantile 
 and maritime cases within the burgh; but it is long since he has exercised 
 that branch of jurisdiction. His proper duty now is to take care that 
 buildings within the burgh are sufficient; that they are erected agreeably 
 to law, and neither encroach on private or public property. He may 
 
COURTS OF LAW IN SCOTLAND. 543 
 
 order insufficient buildings to be taken down. Though a magistrate of 
 a royal burgh, his jurisdiction is unconnected with the bailie court. His 
 judgments are liable to review in the court of session. 
 
 Justice op peace court. — Justices of the peace are persons 
 appointed by royal commission to keep good order and tranquillity within 
 a certain district. In England they were appointed by the crown as early 
 as the second year of Edward III., but in Scotland they were not appointed 
 before the year 1609. An attempt was made in 1587, to introduce the 
 office into Scotland ; but the state of manners at that time was not such 
 as to promise success to a regulation of this nature, and it required repeated 
 legislative acts to lay the foundation of this valuable system : nor does this 
 appear to have been fully accomplished until the usurpation of Oliver 
 Cromwell : after which Charles II. consented to an act* which prescribed 
 these rules which in a great measure have ever since regulated this 
 important branch of public police. It empowered them to proceed against 
 ail persons committing riots and breaches of the peace under the degree 
 of noblemen, prelates, counsellors, and senators of the college of justice; 
 and if any of the offenders being charged to appear before the said justices 
 shall disobey, the summons being indorsed, the lawful citation verified, 
 and the fact proven, the justices are to punish and fine the party not 
 appearing, according to the quality of the crime and the estate of the 
 offender. And for the clearer determination of the order to be observed 
 by justices in the deduction of any such processes, it is by the last men- 
 tioned statute enacted, " that it shall be lawful to the said justices, when- 
 soever they have any occasion to move any action against parties for 
 committing any like fact or riot, to refer the first summons to the parties' 
 oaths of verity, failing of other lawful probation, who being personally 
 summoned by that first citation, shall be holden as confessed, and decreet 
 to be pronounced against him, conform to the libel and summons; and if he 
 be not personally summoned by the first citation, the said justices shall be 
 holden to cause summon him of new again by a second summons at his 
 dwelling house, which two citations shall be as sufficient to infer decreet 
 and sentence upon the libel against him, as if he were apprehended per- 
 sonally : and which sentence given after the manner and form of probation 
 above written, his majesty with the advice and consent of his estates of 
 parliament, authorizes and sustains as good and lawful in themselves." 
 They are also to give order for repairing highways, to punish those who 
 straiten them, and to execute the laws against beggars, vagrants, swearers, 
 and other disorderly persons. The same act also authorized them to judge 
 in the ordinary hire and wages of labourers, workmen, and servants; and 
 
 * 1661, c. 38. 
 
64.* COURTS OF LAW IN SCOTLAND. 
 
 in case they refuse to serve upon the price set down by them, the justice* 
 are empowered to imprison and punish them at their discretion ; and to 
 compel their masters or employers to pay their wages. By the articles of 
 Union the laws for regulating the trade, customs, and excise, are declared 
 to be the same in Scotland as in England. And accordingly, in Scotland, 
 justices of the peace are vested with the same powers as those in England in 
 customs and excise affairs * And the same powers were given to justices 
 of the peace in Scotland, which had formerly been enjoyed by justices of 
 the peace in England, in relation to, and for the preservation of the peace, 
 leaving the trials and judgment by the forms and customs of the Scottish 
 courts of law. This act removed certain restrictions in regard of the 
 persons subject to the jurisdiction of justices of the peace, and in regard 
 to the time within which they were at liberty to actj and placed them on 
 the same footing in these respects with justices of the peace in England. 
 
 No particular qualification in rank or property, is required in Scotland, 
 to act as a justice of the peace : whoever is named in the commission may 
 accept and act. Before acting, however, it is necessary to take the oatli 
 de fideh administratione, in the above terms. The oath of allegiance, 
 of assurance, of abjuration, and of supremacy, must also be taken by the 
 justices before they enter upon their office. 
 
 The general jurisdiction of justices of the peace relates only to the 
 preservation of the peace. They are expressly intrusted with the execu- 
 tion of several penal statutes concerning rural economy, such as those 
 relating to planting, enclosing, and the like; and various ministerial duties 
 connected with the regulation of the highways are likewise committed to 
 them. They also judge in many important questions connected with the 
 revenue of customs and excise, and other branches of the revenue; and by 
 special enactments in several statutes, certain ministerial or judicial powers 
 are conferred on justices: but it may be generally stated, that no justice 
 can act with safety in virtue of statutory powers, without having the par- 
 ticular act conferring these powers before him. 
 
 The civil jurisdiction of justices of the peace in Scotland has been 
 greatly enlarged by the small debt acts. Justices of the peace judge in 
 questions of aliment to natural children, as being in some degree connected 
 with the public peace; and also by usage, resting partly on statute, they 
 judge in questions concerning servants' wages. With these exceptions, 
 however, they seem to have no civil jurisdiction, except under special 
 statutes. They have a statutory jurisdiction with regard to the expense 
 of march fences and the straightening of marches, and also (although that 
 is not so clear) with regard to the damage done by cattle who have tres- 
 
 * 6 Anne, c. 6. 
 
COURTS OF LAW IN SCOTLAND. o45 
 
 passed, and have been poinded, hrevi manu, on the grounds of another 
 person. It is still more doubtful whether justices can judge competently 
 in an action embracing a civil claim for damages, for injury done by the 
 offender, as well as a conclusion for fine or imprisonment in a libel at the 
 instance of the public prosecutor, and the private party for an assault. 
 Under the small debt acts, a person who has been injured by an assault or 
 otherwise, may sue before the justices for reparation or damages from the 
 person who has injured him, as a mere civil debt, provided he limits his 
 claim to the value of £5. But there is an obvious and broad distinction 
 between such a claim of debt under those statutes, and an action concluding 
 for fine or imprisonment against the offender, on account of his offence 
 against the public peace, and at the same time for civil reparation to the 
 injured party. In such mixed actions their jurisdiction may be warranted 
 in some instances by custom, but it seems hardly reconcilable with sound 
 legal principles. 
 
 Although, generally speaking, justices cannot act in cases in which 
 they are personally interested, they may act in all questions concerning the 
 poor, vagrants, highways, or other laws respecting parochial rates, though 
 liable themselves in the burdens imposed for these objects. A justice of 
 the peace may also commit a person who assaults him or violently inter- 
 rupts him in the execution of his office, until the offender find security to 
 keep the peace. But justices cannot act in the determination of any 
 appeal to the quarter sessions from any thing relating to the parish or 
 place in which they are subject to those rates.* By special enactments, 
 commissioners of excise and customs, and others connected with those 
 branches of the revenue, cannot act as justices of the peace; and similar 
 exceptions apply to officers of the army, and to coal masters, in questions 
 relating to soldiers and colliers. 
 
 Unless authorized by special statute, justices cannot exercise any judi- 
 cial or coercive power as justices, beyond their own county. But they 
 may perform ministerial acts, such as receiving the statements of a person 
 who has been robbed or assaulted; and they may also exercise voluntary 
 jurisdiction beyond their territory, such as taking afl[idavits in general, 
 taking the judicial ratification of married women, and the like. Justices 
 are liable to criminal prosecution before the court of justiciary; and in 
 like manner to civil actions of damages before the civil court, on account 
 of oppression or injustice, or other illegal proceedings in their official 
 capacity. But in such cases they are leniently dealt with, and laige 
 allowances are made for errors and defects in judgment and capacity, 
 where it appears that they were acting hona fide for the public good. 
 
 * If) Geo. II., c IS. 
 3 Z 
 
546 
 
 COURTS OF LAW IN SCOTLAND, 
 
 And by special statute it is provided, that in actions against any justice 
 of the peace in Great Britain or Ireland, (which statute includes Scotland), 
 for any summary conviction under any act of parliament, or for any thing 
 done by him towards carrying such conviction into effect, if the conviction 
 shall be quashed, the plaintiff (besides any penalty levied) shall recover only 
 twopence without costs, unless malice and want of probable cause be 
 expressly alleged; and that the damages, penalty, or costs, shall not be 
 recovered, if the plaintiff be found guilty of the offence, and the punish- 
 ment undergone did not exceed that assigned by law.* Justices of the 
 peace, however, ought to act with exceeding caution in every thing 
 relating to the personal liberty of the subject; for, in such cases, the plea 
 of good intention will not justify an illegal act. This is particularly the 
 case under the liberation statute of 1701, whereby justices and other judges 
 are subjected to penalties for error, whatever their intentions may have 
 been. 
 
 A justice of the peace receives no pecuniary recompense; but he will 
 be reimbursed by the sheriff of the county for any pecuniary advances 
 properly made for the public in the execution of his office : such disburse- 
 ments being either presented in exchequer, or repaid from the county 
 rogue money. A commission of the peace may be recalled at any time 
 by the king, and it falls by the demise of the crown; by statute,t however, 
 it is continued for six months longer, unless the successor should recall it. 
 The clerk of the justices, or of the quarter sessions, is named by the secre- 
 tary of state. The books in which their proceedings are recorded are 
 kept by the clerk. 
 
 Tlie fiscal is an officer who gives his instance or concurrence to the 
 steps necessary to be taken for the apprehension and prosecution of 
 delinquents : and this officer is also appointed collector of tlie fines 
 and penalties which the justices of the peace have the power to impose. 
 The procurators of the sheriff's court practise before the justices, (except 
 under the small debt act), and the warrants of the justices are executed by 
 -constables, who are officers appointed by the justices of the peace. 
 
 In the Scottish commission there is not a custos rotulorum as in Eng- 
 land; and the quorum^ or a certain number of justices with superior 
 powerS;, on account of their superior knowledge, formerly named by the 
 English commissions, has never been introduced into the Scottish ones. 
 
 Although justices of the peace are not invested by their constitution 
 witli any civil jurisdiction, yet in the county of Edinburgh and some other 
 places they had been, past all memory, in the practice of determining small 
 claims not exceeding £40 Scots, or £3 : 6 : ^d. Sterling. If not directly 
 
 * 43 Geo. III., c. 131. f 1 Anne, c. 8. 
 
COURTS OF LAW IN SCOTLAND. 547 
 
 sanctioned, this was not discountenanced by the supreme court, there 
 appearing a strong necessity that some remedy should be applied to relieve 
 the expense of litigation in the courts of common law. The proceedings, 
 i o avoid expense and delay, were quite summary. There was no libel, 
 but merely a charge, by a messenger, for the defender to appear the fol- 
 lowing day. As the necessity and advantage of this court became more 
 apparent, subsequent enactments conferred on it more power and juris- 
 diction. The small debt act* conferred a summary civil jurisdiction on 
 the justices of the peace, in small causes, where the debt does not exceed 
 £5, exclusive of expenses. The cause may be heard before any two or 
 more justices of the peace, within their respective counties, and decided 
 agreeably to equity and a good conscience. The decrees of the Justices 
 under the small debt act, may be enforced by poinding or summary 
 imprisonment. But the provisions of this act have been repealed by a 
 recent act, and which is inserted in page 285, which took place on the 
 1st January 1826,f in which similar provisions are enacted, providing that 
 the decrees of the justices shall be final, and not subject to review by 
 advocation or suspension, nor to reduction, except on the ground of malice 
 and oppression on the part of the justices ; which action must be brought 
 within one year from the date of the justices' decree. By a previous 
 statute,]: a peculiar and summary jurisdiction in small causes, where the 
 debt does not exceed £8 Sterling, exclusive of expenses and fees of extract, 
 is conferred on sheriffs in Scotland. Both in the principle and details, 
 this statute resembles that in regard to small debts recoverable before 
 justices of the peace. No procurator is allowed, without the special leave 
 of the sheriff to plead viva voce for the parties, nor without his leave are 
 the pleadings reduceable to writing. The sheriff's decrees, like those of 
 the justices, are not subject to review nor reduction, except on the ground 
 of malice or oppression. In ordinary cases the parties must appear before 
 the sheriff, and be heard plead their own cause. § 
 
 Baron court. — In its more ordinary acceptation, the title of baron is 
 the degree of nobility next to a viscount. But anciently, in Scotland, all 
 those vassals who held their lands immediately of the crown, were termed 
 barons. When titles of nobility were conferred on these barons, they were 
 called the greater harons^ but both the greater and the proprietary barons 
 sat indiscriminately in the Scottish parliament until 1427, when by the act 
 of that year, II the attendance of the lesser barons was dispensed with, on 
 condition of their sending representatives from each county, to be called 
 commissioners of the shire. Subsequent acts^j renewed their leave of 
 
 * 39 & 40 Geo. III., c. 46. f 6 Geo. IV., c. 48. \ 6 Geo. IV., c. 24. 
 
 § Boyd's Judicial Proceedings. — Bell's Law Dictionary. — Hutchison's Justice of Peace, 
 ij C. 102. ^ 1467, c. 75-, 150b, c. 78. 
 
548 
 
 COURTS OF LAW IN SCOTLAND. 
 
 absence, and extended the privilege to all barons whose valuation is under 
 1 00 merks new extent. Leave of absence at that time was a privilege enjoyed 
 by the lesser barons, but it was optional to use it; and at last, from their 
 almost total failure to attend, an opinion prevailed that they had no right 
 to sit in parliament, unless when elected as commissioners of shires. 
 When, however, a seat in parliament became an object of ambition, it was 
 necessary to settle this question; and the plan of representation was intro- 
 duced* on which the election law of Scotland was founded up to the 
 period when the reform of parliament billf entirely changed the law. 
 
 But although every person holding of the crown came under one or 
 other of the above denominations of greater or lesser barons; yet to con- 
 stitute a baron in the strict sense of the word, his lands must have been 
 erected, or at least confirmed by the king, in liheram haroniam : and 
 such a baron had a jurisdiction both civil and criminal, which he might 
 have exercised either in his own person or by his bailie. But this juris- 
 diction was reduced J to tlie right of recovering from his vassals and tenants 
 the feu duties and rents of the land, and compelling them to perform the 
 services to which they may be bound, and to the right of deciding in civil 
 questions where the debt or damage does not exceed 40^., and beyond this 
 his civil jurisdiction cannot be prorogated. The baron's criminal jurisdic- 
 tion extended anciently to all crimes except treason and the four pleas of the 
 crown; but by the same statute it is now limited to assaults, batteries, and 
 smaller offences, which may be punished by a fine not exceeding 206'., &c. 
 When a fine is inflicted, it is to be recovered by poinding, or, in default 
 of goods, by one month's imprisonment at farthest. But this jurisdiction 
 is encumbered with so many regulations and restrictions, that the baron 
 seldom or never exercises it. No future charter of the creation of a 
 barony shall convey any higher jurisdiction, than for recovering the rents 
 of lands, multures, and mill services.^ An exception has however been 
 made by a late statute, || by which the king is authorized to erect free and 
 independent burghs of barony in those parts of the sea coast in which the 
 fisheries are carried on : in such burghs, the magistrates are to exercise 
 the power of justices cumulatively with the justices of the county.^ 
 
 King's advocate — Or lord Advocate, as he is commonly called, is 
 nearly the same in Scotland as the attorney general in England; and his 
 business is to pursue and defend in all causes wherein the king has an 
 interest. His office is very honourable, and he is in virtue of it styled 
 mi/ lord. He is allowed to sit within the bar of the court of session 
 covered, where only the peers of the realm are allowed to sit.** His 
 
 * 1587, c, 114 ; 1661, c. 35; 1681, c. 21. f 1 Will. IV., c. 65. 
 
 \ 20 Geo. II., c. 43. § 20 Geo. II. || 35 Geo. III., c. 122. 
 
 If Bell's Law Diet- -Boyd's Proceed! rigs.— Wight's Origin of Parliaments, chiefly Scottish. 
 ** Beatson's Political Index, III. 118. 
 
COURTS OF LAW IN SCOTLAND. 549 
 
 majesty's advocate was also anciently a lord of session : all complaints of 
 a criminal nature before the court of session, must have the instance or 
 concurrence of the lord advocate. He may decline to prosecute; but it 
 has been found that he cannot refuse to give a private complainer his con- 
 currence, which infers no personal responsibility.* 
 
 " Albeit," says the learned and celebrated Sir George Mackenzie, lord 
 advocate during the reigns of Charles II. and James II., " the king's 
 advocate be the pursuer in most cases, yet he uses ordinarily to constitute 
 a depute, who should produce a written warrant under his own hand, else 
 he cannot be admitted; and this depute cannot desert a diet, though his 
 procurancy do not instruct him with a particular power to that effect." 
 His majesty's advocate does not usually prosecute for treason, without a 
 special warrant under his majesty's hand, or a particular order from the 
 privy council, which he usually produces ante omnia, and which is marked 
 by tlie clerk. The lord advocate claims to examine parties and witnesses 
 before the process be intented, under pretext that he may thereby know how 
 to frame the indictment exactly, and that he may not vex parties, should 
 he not find ground for the prosecution : *' but," continues Sir George, 
 " many learned lawyers have always thought this a dangerous procedure, 
 for his majesty's advocate is still a party interested, and, as such, should 
 not be allowed to deal with the witnesses, because he may thereby extract 
 from them what otherwise they would not have deponed at that time. 
 And as it was found that he ought not to make the roll of assizers, because 
 he is too closely interested, much less should he, for the same reason, be 
 
 * Beveridjje's Forms of Process, 1. 50. — Forbes, in his Journal of the Session, foh'o, 
 Edinburgh, 1714, Preface, p. xxv., says, " Sir Thomas Hope of Kerse, admitted a lord of 
 session, 19th Jul)-, 1642, and made justice-general, 27th of that month, was second son to Sir 
 Thomas Hope of Craighall, advocate to king Charles I., before whose time the king's advo- 
 cates used to plead uncovered. But he having two of his own sons on the bench, viz. Sir 
 John, his eldest son, and this Sir Thomas, the lords indulged him with the privilege of 
 pleading with his hat on, which his successors in office have ever since enjoyed. " This 
 statement of the origin of the privilege, which has been copied into several succeeding pub- 
 lications, turns out to be erroneous. Sir Thomas Hope was appointed advocate to Charles I., 
 in 1626, jointly with the former king's advocate. Sir William Oliphant, who died J3th April, 
 1628, aged 77, when Sir Thomas became sole advocate. By act of sederunt of 12th July, 
 1626, liberty was granted to Sir Thomas Hope, king's advocate, to plead with his hat on. 
 This act of sederunt is not extant, the book of that period being lost ; but it is referred to in 
 an act of sederunt of 2d June, 1649, granting to Sir Thomas Nicolson, king's advocate, the 
 same privileges as were granted to umquhile Sir '1 homas Hope, particularly " that he might 
 have the liberty of pleading with his hat on, as was granted to the said umquhile Sir Tho- 
 mas, conform to act of sederunt of 12th July, 1626." Sir John Hope of Craighall, eldest 
 son of Sir Thomas, was appointed a lord of session, 21st July, 1632, six years after the grant, 
 and Sir Thomas Hope of Kerse, second son of Sir Thomas, was nominated a lord of session 
 by act of parliament, 13th November, 1641, nine years later, proving the statement of the 
 origin of the privilege in Forbes' Journal to be "incorrect. Sir Thomas Hope continued 
 king's advocate till his death, 1st November, 1646 ; his second son, Sir Thomas, a lord of 
 session and justice-general, predeceased him, having " deceissit in Edinburgh, within his 
 awin dwelling-hous, 23d August, 1643;" and his youngest son, Sir James Hope of Hope- 
 toun, was appointed a lord of session, 12th March, 1649, twenty-eight months after the death 
 of his father. 
 
550 COURTS OF LAW IN SCOTLAND. 
 
 allowed to examine the witnesses, especially since that privilege is denied 
 to the defender's advocate."* 
 
 The office of macei of the court of session has been past all memory 
 hereditarily vested in the family of Moncrieff of Readin, who discharges 
 the duty by deputy, and Mr Moncrieff of course has the privilege of 
 appointing his own deputy. In 1692, however, the lord advocate of that 
 day. Sir James Stuart, baronet, disputed that privilege, which being 
 carried before the court of session, the lords, by several votes, found the 
 following points: " Imo, that John Adams' (the private party) right being 
 now ended and transacted, the king's advocate could not insist for the 
 king's interest; without a special warrant from his majesty, there being 
 only two cases wherein he could quarrel (dispute) the subject's right, either 
 by giving liis concourse to actions of one subject against another, or 
 Avhere he had a mandate from the king to that effect : otherwise he might 
 vex all the lieges with processes, and open their charter chests."f 
 
 The king's advocate, and some of the vassals of the abbacy of Scoon, 
 pursued a declarator against lord viscount Stormont, alleging that altliough 
 he had a right to their feu duties till redeemed, yet he had no right to exact 
 the services in their charters of harriage and carriage or the like, but the 
 same belonged to the king their superior. It was asserted that it could be 
 no process at the instance of the king's advocate, because lie cannot pursue 
 the king's vassals without a special mandate and warrant from his majesty, 
 else he might vex all the suhjects : to this it was replied, that it is only 
 in reductions and improbations that the king's advocate requires a special 
 warrant. Sundry of the lords were clear to sustain the process, but others 
 thought it mali exempli, a bad example, that such unfavourable pursuits 
 should be encouraged, (for they found that the king's advocate cannot 
 insist alone,) and they refused process, till the titles of tlie vassals were 
 given out to be seen in communi forma.\ 
 
 Stair says, that in contraventions, the king's advocate must concur for 
 the king's interest, but he cannot insist alone, as when the private party 
 hath discharged the deeds, even after the intenting of the cause. <§> Reduc- 
 tions with improbations must proceed at the instance of the king's advocate, 
 and for the king's interest ; and therefore it must proceed upon a bill. 
 The reason of the advocate's concourse is, because the improbation is 
 criminal, if the writ be produced; and the lords' decreet of improbation is 
 the chief ground of capital punishment for forgery.|| The king's advocate 
 can prosecute for usury, without the concurrence of the party; but if he 
 does concur, then the party is entitled to restitution of the interest over the 
 legal rate which he may have paid.^ 
 
 * Sir George Mackenzie's Works, 11.228. + FounUiinhall's Decisions, 1.553. 
 
 t Ibid., I. 761. § Stair's Institutes, 69. \\ Ibid. 619. ^ Ibid. 13H. 
 
COURTS OF LAW IN SCOTLAND. 551 
 
 It was at no period of time competent by the law of Scotland, for any 
 private person, other than the party himself who had suffered damage in 
 his person, estate, or reputation, or, in case of his death, his next of kin, 
 to prosecute crimes, however atrocious, the crime of high treason only 
 excepted; and this rule obtains at this day in treason itself. On the other 
 hand, his majesty's advocate, who in this question represents the com 
 munity, has authority from the sovereign, who, inherently possessing the 
 executive power of the state, sues every criminal without the concurrence, 
 or even contrary to the will, of the injured party. But his power of 
 prosecuting criminals extends no farther than the puhlica vindicta, or the 
 satisfaction of public justice is concerned : the private party has a right 
 of action against the offender for reparation of the injury : in which 
 action, however, though it be pursued merely ad civilem effectum, the 
 king's advocate must concur, because it arises from a criminal cause; 
 and a sum is, by the decree proceeding upon it, awarded to the pursuer 
 in name of damage, as a sort of compensation for the wrong done to him, 
 proportioned to the enormity of the offence, though in fact he should 
 have suffered no pecuniary loss.* 
 
 Hume says, that in popular actions, as in many others relative to 
 crimes, the law of Scotland has departed from the Roman law, which 
 invited every citizen to prosecute for any offence that could be considered 
 as injurious to the public. With a wiser and more salutary policy, and 
 one which is far more suitable to our frame of government and state of 
 society, our law has confined this important privilege to two descriptions 
 of character — the party injured by any offence, and his majesty's advo- 
 cate, who prosecutes for the public interest, and in the name of his 
 majesty, as guardian and administrator for all his people, of the laws 
 which secure their tranquillity and welfare. This has been so long the 
 settled maxim, that it may almost seem strange we should have a judg- 
 ment to cite in its confirmation, within the later periods of our practice. 
 In the trial, however, of one Crosbie, which took place on the 20th 
 August, 1616, for sundry acts of stealing cattle, where the private accuser 
 seems to have insisted for injuries done to others, as well as for his own : 
 " The justice finds nae proces at thir instance, for ony crime committit 
 and done to uthirs, except either the persones, owners of the goods 
 stowin (stolen), or the king's advocat war present, and insistit in the 
 pirsute of the pannel therefor." 
 
 There are two titles of prosecution acknowledged in the law of Scot- 
 land: 1. The private party injured may prosecute with the lord advocate's 
 concurrence, which concurrence or agreement his lordship cannot with- 
 
 * Erskine's Institutes, B. IV., tit. 4. sec. 2 
 
552 COURTS OF LAW IN SCOTLAND, 
 
 hold; he is obliged to give it: and, 2. That of the lord advocate, wlio 
 prosecutes in the king's name. Private prosecution is not now of fre- 
 quent occurrence, which Mr H'ume says " is one symptom of the more 
 vigorous and wholesome administration of the laws in our times :" yet, 
 without doubt, private prosecution was the original, and for a long time 
 the ordinary course of trial, for most crimes that concerned individuals. 
 It is to be noted that the title of the private party embraces in every 
 instance the full pains of law — not only the private interest of damages 
 (solatium) and expenses, but the same high and personal conclusions of 
 corporeal or other chastisement, wherein the lord advocate for his majesty's 
 interest might insist. Thus, in cases of homicide, an indictment at the 
 wife's instance, or the kinsmen of the deceased, is as good towards inflicting 
 the highest vengeance of the law on the body of the culprit, if he is found 
 to be a murderer, as it is in the case of culpable homicide for recovery 
 of the assythment. or pecuniary consideration, which is then due to the 
 kindred. In this case, " The bairnis, als weil bastardis, being maill or 
 femaill, as the bairnis lauchfullie gottin, sould be participant of the 
 assythment decernit and adjudgit for their father's slauchter : bot the 
 samin sould not be dividit equallie amangis thame, because the lauchfull 
 bairn sould hae twise als meickle as the bastard, or utherwayes at the 
 discretion of the judge."* The true and obvious ground, therefore, of 
 sustaining this private action, or instance as it is called in the law of 
 Scotland, is the consideration of the just and natural resentment of the 
 sufferer (with which the interest of civil order coincides), impelling him to 
 seek the satisfaction of his wrong in the humiliation and punishment of 
 the wrongdoer, to the degree which the law allows; a feeling which must 
 be accounted blameless, when restrained within these limits, and applied in 
 bringing the transgressor to a public and solemn trial for his crime. This 
 point was the subject of an argument, in the trial of the notorious colonel 
 Charteris for rape or attempt to ravish; where the action had been raised 
 by the woman's husband, with concourse of the lord advocate, and this 
 concourse was withdrawn at the diet of compearance. The court sustained 
 process, and " repel what is objected to the competency, and find the 
 libel relevant to infer the pains of law." 
 
 To support his instance^ the individual complainer must be able, 
 therefore, to show some substantial and peculiar interest in the issue of the 
 trial; an interest arising out of some injury which he, beyond others, has 
 suffered on the occasion libelled, and at which he is entitled to feel more 
 than the ordinary indignation with which his fellow citizens will regard it. 
 It is not sufficient, therefore, that he has some feeble and remote concern 
 
 * Balfour's Practicks, p. 516. 
 
COURTS OF LAW IN SCOTLAND. 553 
 
 in the issue, or one of a general nature, in common with a wliole neigli- 
 bourhood, or with all of the sam« order or class of society. It does not 
 belong, for instance, to every minister of the church of Scotland, though 
 interested certainly in guarding the purity, and maintaining the privileges 
 of his own order, to prosecute for the celebration of clandestine marriage, 
 or for intrusion into kirks by deposed or unqualified persons. In like 
 manner, the keeping of a house of harbourage for thieves and vagabonds, 
 is certainly a nuisance to the whole neighbourhood ; yet it belongs to the 
 procurator-fiscal only, or to him who can show a special damage, and not 
 to every heritor or inhabitant of that district, to insist for the punishment 
 of the master of such a house. Again, let us suppose that the sittings of 
 a court of justice are interrupted by a mob; or that a riot happens on 
 occasion of the settlement of a minister, whereby the peace of the parish is 
 disturbed, the ordination hindered, and the congregation deprived for a 
 time of the regular performance of religious worship; still it cannot be 
 maintained, that every litigant in the one case, how urgent soever his cause, 
 or every member of the congregation in the other case, or even every heritor 
 of the parish, can stand forth as avenger of this public wrong, and prose- 
 cute for the ordinary pains of riot, or the insulting of clergymen or judges. 
 But the patron of the parish has a good title to do so, because he has been 
 peculiarly injured by this resistance of his lawful right. This indeed is 
 not a fictitious, but a real case, and one which received judgment accord- 
 ingly, in the case of Gillies, Gray, and others, in the year 1751. The 
 prosecution was for certain riots, on occasion of the settlement of a minister 
 in the burgh of Lanark, at the instance of Lockhart of Lee, as patron of 
 the parish, and of certain other persons as heritors for themselves, " and 
 in behalf of the other heritors, elders, and christian people of the parish.'* 
 The court sustained the patron's title, but repelled that of the other 
 individuals. 
 
 Under modification the practice of the law of Scotland sustains the 
 title of a private complainer, in respect of injuries of almost every kind. 
 Whether it be the injury of bodily pain, or disability, as in the case of 
 battery and mutilation ; or of insult and fear of mischief, as in the case of 
 attempt to ravish, or a threatening letter, or challenge to fight; or of 
 putting one in danger, as by malicious information of a crime; or of the 
 loss of liberty, as by wrongous imprisonment; or of the loss of domestic 
 comfort, as in the case of adultery; or of fame and respect, as in the 
 slandering of a judge; or of a violation of one's natural sentiments of 
 affection, as by raising the dead body of one's child from the grave; or of 
 patrimonial loss, either done or intended, as by theft, forgery, deforcement, 
 perjury, or subornation in any civil process (and this whether the prose- 
 cutor have won or lost his cause) ; or of loss and disappointment of any 
 
 4 A 
 
^54 COURTS OF LAW IN SCOTLAND, 
 
 sort, as in the case of bribery in opposition to one's interest, as candidate 
 at an election : all these are such wrongs as bestow a title on the sufferer, 
 to accuse and bring the author of his injury to justice. Either th« 
 cornplainer seeks some immediate reparation from the wrongdoer; or he 
 has suffered some harm from him; or he has had a criminal attempt 
 directed against him, for which he may justly feel resentment, and seek an 
 atonement, in the humiliation and disgrace of the offender. Besides, in all 
 these instances, the sufferer has the farther substantial interest of deterring 
 the transgressor, by means of the due chastisement, from the repetition of 
 similar aggressions against him for the future; and of thus regaining his 
 peace of mind, and opinion of security in the enjoyment of his riglits. 
 With respect also to the application of the private prosecution, the law of 
 Scotland seems to know no distinction between the more atrocious and the 
 lower wrongs. If the wrong be one of that degree, for which the lord 
 advocate in liis majesty's name, and for the public interest, might insist in 
 a criminal court, the same regard is due to the just complaint of the 
 immediate sufferer on the occasion. In certain cases, the law of Scotland 
 allows a right of prosecution to the kindred of the injured party; for 
 there are injuries so atrocious and extreme, that the distress and disturb- 
 ance, as well as the other evil consequences attending them, affect not only 
 the immediate sufferer, but also those who are nearly allied to him ; so 
 that, in truth, on those occasions they prosecute for an injury done to 
 themselves. On this ground, the near kinsmen of a person murdered have 
 a right to bring the murderer to justice, it being clear that the chief 
 sufferer cannot himself do it. In cases of rape, or attempt to ravish, the 
 husband or the father is allowed to avenge the injury offered to his wife 
 or daughter, more especially as the female may be averse to prosecute in 
 her own person. Thus, in the case of Clieyne and Bowman, an action for 
 a rape was sustained at the instance of the woman's father, though it was 
 objected that she herself, being of perfect age, did not join in the prose- 
 cution. In another case of rape, the stepfather insisted in his own name, 
 and for the woman and her mother. Colonel Charteris was sent to an 
 assize, and damages recovered, although the lord advocate had withdrawn 
 his concourse. A tutor, likewise, who has the care and custody of the 
 person of his ward, may prosecute for the infringement of his right, and 
 the injury done to himself, as well as her, by rape, forcible marriage, or 
 violent abduction of her person. 
 
 It is, however, only to crimes of a personal and very atrocious nature, 
 that the law listens to this call for vengeance on the part of the kindred of 
 the deceased; because wrongs of a lower degree, or only of a patrimonial 
 nature, do not excite the same lively interest or distress in the kindred of 
 the sufferer. With him, therefore, the right of prosecution expires. 
 
COURTS OF LAW IN SCOTLAND. 555 
 
 So far, indeed, as his heir or executor has any patrimonial interest on 
 such an occasion, as for damages or recovery of the stolen goods, or im- 
 probation of the forged writing, the civil court will receive his process; 
 but an action concluding for corporal pains, or even a fine or escheat of 
 goods, on account of an ordinary assault, or the like, committed on tlie 
 deceased, it is at least more doubtful whether the kinsman can insist for 
 the lord advocate's concourse; because the pain and distress were personal 
 to the deceased, and his kindred are not supposed to be so deeply affected 
 by the wrong on such occasions. A private prosecutor's action or libel 
 cannot be raised at his own pleasure, but must be raised with the concourse 
 of his majesty's advocate, for his majesty's interest; and truly receives his 
 concourse by the king's advocate's subscription of the bill for the criminal 
 letters, or of some one authorized by him. This practice is grounded on 
 two considerations : first, his majesty's interest in the fines, forfeitures, 
 and confiscations that accrue from convictions; and his majesty's interest 
 is thus guarded against any collusive dealings between the private accuser 
 and the offender: and next, that far superior interest which the king 
 has in the execution of his laws, and especially in the due and equal 
 distribution of criminal justice to all his subjects; in which view it is fit the 
 lord advocate be informed of any libel when it is raised; that he may learn 
 the nature of the charge, and watch over the conduct and progress of the 
 trial, so that the ends of public justice may be fulfilled, and the king suffer 
 no prejudice, by private hands assuming this interesting discipline. This 
 concourse, therefore, is necessary alike to every libel in the court of justi- 
 ciary, whether it conclude for the full pains of law, or only for a pecuniary 
 reparation to the party; for still the interest of public justice is concerned 
 in tlie issue, and the pannel is so far punished and corrected, as he is made 
 liable in those patrimonial consequences of his wrong. Indeed, to such a 
 length is this notion carried, that the lord advocate must concur in the 
 ordinary civil action even of reduction and improbation, as it is called, 
 though only laid by fiction upon criminal grounds. 
 
 " But is it therefore our law," asks Mr Hume, " that the lord advo- 
 cate has the interest of the individual absolutely in his hands, and by 
 refusing his concourse may at his pleasure suppress the private instance, 
 and protect the transgressor from the just consequences of his crime ? I 
 know not whether the rule on this head is so far peremptory as to deprive 
 the lord advocate of all exercise of his judgment on such occasions, and 
 constrain him absolutely to lend his name to every libel, how absurd and 
 incompetent soever, which any individual shall lay before him. For what 
 if his concourse be asked to a charge of witchcraft, which a statute has 
 expunged from the list of crimes; or of treason, for which no private party 
 can prosecute; or of murder, at the instance of some stranger, who does 
 
556 COURTS OF LAW IN SCOTLAND. 
 
 not even allege that he is any ways related to the deceased?" Mr Hume 
 thinks it is hardly to be imagined, that he is obliged to degrade his office, 
 and give trouble to the court, by lending his name, in limine even, to 
 such strange proceedings. On the other side, certainly the lord advocate 
 is not the absolute and unaccountable judge on such occasions, but is 
 subject to the control or direction of the court, who will oblige him to 
 produce, and justify the ground of his refusal to concur. Nay, more; 
 except in such extraordinary situations as those above supposed, he shall 
 not even be allowed to engage in any inquiry concerning the merits of the 
 case, the propriety of the prosecution, the form of the action, the sufficiency 
 of the title, or the like, but shall be ordained to comply straightway, leaving 
 their discussion for the proper place and season, after the libel shall be in 
 court. Such an order was given accordingly, on occasion of the only 
 complaint of this sort that appears on record. In 1633, Sir Thomas 
 Hope, lord advocate at that time, had refused his concourse to certain 
 actions, as in his opinion prejudicial to the interests of the crown. This 
 being complained of to the court of session, " they ordain the advocate to 
 subscrive the said bills, it being warranted by the general order and 
 practique hitherto observed in this judicatorie; but declaring at the same 
 time, that his majesty's advocate is noways thereby debarred from com- 
 pearing for his majesty's particular right and interest, to defend and oppose 
 against the said pursuits." If, therefore, this was thought a competent and 
 lawful course in the civil court, and with respect to a process of an arti- 
 ficial character, it may reasonably be inferred that the court of justiciary 
 would not decline to interfere in the case of a proper criminal process 
 before themselves ; and accordingly Mackenzie in his observations on the 
 statute 1587, c. 76, goes so far as to say, " as parties may pursue crimes 
 without concourse of the king's advocate, so by this act, the king may 
 pursue without an informer, ad vind. puhlicam.^^ And although it does 
 not amount to a judgment on the point, yet it is a confirmation of the right 
 of the individual to force the reception of his complaint, that in the case 
 of colonel Charteris, where the lord advocate's concourse was formally 
 withdrawn at the calling of the libel, still, after a full argument, the trial 
 went on at the instance of the private complainer. In the case, which 
 sometimes happens, of mutual libels being raised by the private parties 
 against each other, on the same or partly the same facts, the lord advocate 
 may, and indeed must give his concourse to the action of either party. 
 
 Another peculiarity of a prosecution at a private instance, is, that before 
 entering into the relevancy of the charge, or opening up the case on his 
 own part, the pannel, if he has any faith in such a remedy, may call on the 
 prosecutor to swear the libel as it is styled : that is, to give his oath of 
 calumny to the justice and sufficiency, in his opinion, of the grounds of 
 
COURTS OF LAW IN SCOTLAND. 557 
 
 his accusation : a security which the law of Scotland has very properly 
 provided, in addition to all others, and in limine of the process, that the 
 pannel shall not suffer the anxiety and humiliation of being sent, even to 
 an assize, unless on a charge which the prosecutor will publicly confirm 
 with his oath, as founded in truth and justice. If the prosecutor decline 
 to swear, the court will desert the diet of his libel. As every one is left to 
 the free exercise of his own will, respecting the raising of a criminal process, 
 80 he is at liberty, after raising it, to debar himself by a written discharge 
 or disclamation, as it is called, from insisting in that process, or even, if 
 the expressions are broad enough, from raising any such complaint on 
 the same ground for the future.* 
 
 The king's advocate cannot prosecute any action at the king's instance, 
 tending to challenge the right of any of his majesty's subjects, without a 
 special mandate to that effect; though he may give his concourse to a 
 process brought by one subject against another. In reductions of grants 
 from the crown, custom has required a special warrant under the sign 
 manual; yet it has been found that the king's advocate, without any special 
 warrant, may insist in a declarator of the boundaries of the king's forest, 
 because this is only protecting the rights of the crown from encroachments, 
 and not cutting down the right of private parties.f 
 
 The office of lord advocate, who is the public accuser, and insists in 
 the king's name and for his interest, in the execution of the laws, and for 
 the tranquillity and welfare of his people, though it probably existed at an 
 earlier period, is not much noticed before the beginning of the 16th 
 century ; and according to the common account it was raised to its present 
 high privilege with respect of the prosecution of crimes by the statute 
 1587, c. 77, which declares, " that the thesaurer and advocate persew 
 slaughters, and utheris crimes, althoucht the pairties be silent, or wald 
 utherwayis privily agree." But that this is not quite accurate, may be 
 inferred from an older statute,:^: which fixes the penalties of calumnious 
 prosecution, and provides particularly for the case of a process at the 
 instance of the lord advocate only : " and gif the kinge's majestie's advo- 
 cat be onlie persewer, his informer to pay the paine foirsaid." It is 
 obvious, with respect to crimes of a public nature, such as treason, sedition, 
 blasphemy, and several others, for which no private individual ever had a 
 right to prosecute, that there must always have been some regular course 
 of complaint, wherein such offenders might be brought to justice. And 
 further, with respect to crimes injurious to individuals, if they were also 
 of a nature interesting to the public, the king seems always to have been 
 a competent accuser. The title of the act 1436, c. 140, is, " trespassours 
 
 * Hume on Crimes, vol. ii. f Brown's Synopsis, vol. ii. 1187. | 1579, c. 78. 
 
568 COURTS OF LAW IN SCOTLAND. 
 
 may be accused at the king's instance allenarly;" and the statute itself 
 ordains generally, " that all maires and serjeandes arreist at the schirrifli's 
 bidding, albeit that nae pairtie follower be, all trespassours^ and that the 
 said schirriffe follow the said trespassours in the hinge's name, gif nae 
 pairtie foUoweris appearis." And again, the statute 1424, c. 20, entitled, 
 of mureburning^ after fixing the penalty of the trespass, has this express 
 provision : " and gif the lord of the land raises not sick pair, nor punishes 
 not sick trespassoures, as is befoir said, tlie justice-clerk, be (by) the 
 indictment, sail gar sick trespassoures be corrected befoir the justice, and 
 punished as said is." Which words show the course in which this sort of 
 business was then prepared, and wliich, according to the whole series of the 
 Scottish statutes of the fifteenth and part of the sixteenth century, appears 
 to have been : that, after information had been taken in the several counties 
 under the brieve of dittay, the justice-clerk at the command of the justiciar, 
 made up from these materials what was then called the Porteous roll and 
 traistis ; that is, a roll of the names of the delinquents, and a file of the 
 suitable indictments against them. And it lay with the same oflScer to 
 expedite the necessary precepts towards the trial of those charges, and to 
 issue his orders to the crowner^ to arrest the delinquents and lay them in 
 ward, or take surety for their appearance. In performing this service 
 the justice-clerk acted substantially for his majesty's interest, and for the 
 benefit of public justice and example. In framing his indictment, he 
 neither inserted the name of his majesty, nor of the lord advocate, nor 
 of any other person as accuser, which continued to be the style down to 
 the end even of the 17th century. In the indictment of Arnott and 
 other rebels taken at Pentland in 1666, the style was : " Ye and ilk ane 
 of you are indicted and accused; for that albeit by the common law," &c. 
 And in another case, in 1681, the earl of Argyle's indictment was, 
 *' You are indicted and accused, that albeit by the common law," &c. 
 Both of these were cases of very great importance, and were tried with 
 more than usual solemnity. Nevertheless, in all such cliarges, after they 
 were brought into court, it was the lord advocate's duty to insist in, and 
 bring them to an issue : on which account, even in the oldest books of 
 adjournal, he is marked in the par tibus, as counsel for the crown, '* for 
 the persewar advocatus.^^ In effect, therefore, though not set down as 
 such, in gremio of the charge, the lord advocate was prosecutor for his 
 majesty's interest, and was master of the instance^ which he miglit desert, 
 restrict, or bring to an issue, as he saw cause. And, on the whole, Mr 
 
 * The office of coroner, though now unknown to the law of Scotland, was formerly of some 
 Importance in it. One principal part of his duty seems to have been, by arrestment of the 
 person, effects, or otherwise, to secure the appearnuce of otfenders for triaJ, and this he did by 
 precept from the justice-clerk. — Hume, ii. p. 24. 
 
COURTS OF LAW IN SCOTLAND. 559 
 
 Hume thinks it probable, that the act of James VI.,* which allows the 
 lord advocate to pursue, though the parties themselves " be silent or wald 
 utherways agree," is to be understood of that form of prosecution only, 
 wherein the individual must have insisted ; namely, by summons or criminal 
 letters, bearing the name of a complainer, and citing the accused to a 
 particular day of trial. That statute, however, certainly added to the 
 advocate's consequence, who now openly sustains the person of his majesty, 
 and wields the law in this interesting department; and it is said that soon 
 after the passing of the above act, in the trial of Arnott of Woodmiln, in the 
 year 1598, he was marked for the first time in the record under the title of 
 lord advocate^ which title he has ever since retained. 
 
 The right of prosecution was vested alike in the office of treasurer, as 
 well as of the lord advocate, by the fore-mentioned statute of James VI., 
 for it was one of the objects of that statute to secure his majesty's interest 
 in the fines, confiscations, and forfeitures occurring on those occasions, 
 against the collusive dealings of the pannels and private accusers, to the 
 disappointment alike of the royal revenue, and the interest of public 
 justice. But Mr Hume thinks there is not any precedent on record of a 
 prosecution at the treasurer's instance. Neither does this high privilege 
 belong to his majesty's solicitor-general, nor to any other of his law officers, 
 jure officii ; though there is nothing to hinder his majesty, at least when 
 there is no lord advocate, from throwing such a power into the commission 
 of the solicitor-general, or authorizing that officer, or perhaps any other 
 lawyer, by a special letter, to pursue and insist against criminals in like 
 manner as the lord advocate may do. In fact this was done in 1713, in 
 consequence of the death of Sir James Stuart, then lord advocate. It 
 appears that the office of lord advocate has been vested at the same time 
 in a plurality of persons; for, in the trial of John Young, Sir William 
 Oliphant and Mr Thomas Hope are both marked in the record, as 
 " advocates to our soveraine lord." 
 
 After what has been said regarding the offences for which the lord 
 advocate may prosecute, it is almost unnecessary to add that his privilege 
 is hardly subject to any limitation. For all those crimes which are properly 
 of a public nature, such as treason, sedition, blasphemy, riot, incest, being 
 an Egyptian, harbouring of thieves, smuggling, forestalling, and tlie like, 
 he is the only prosecutor; because the reasons for vindicating these wrongs 
 are of a general and an extensive kind, wherein all the lieges have indeed 
 a certain interest, but as members only of society, and not one of them 
 more than another. As to those ofTences, whether high or low, for which 
 the injured party may also prosecute, and whether he be, or be not disposed 
 
 * 1587, c. 77. 
 
560 COURTS OF LAW IN SCOTLAND. 
 
 to concur in doing so: still the lord advocate has a right by the act 1587, 
 to complain of them in his majesty's name, as guardian of his laws and of 
 his people's morals, and to insist for the due chastisement of the offender.* 
 
 The lord advocate, therefore, is the public prosecutor for crimes, all 
 over Scotland; and, in one sense, independent of the party injured, and it 
 is absolutely under his own management and disposal, as to the seasons 
 and occasions when, and the mode wherein, or the effect to which he shall 
 use his power. In none of these points can any individual, not even the 
 supreme court itself, pretend in any way to control or superintend him : 
 indeed, to allow of the court's interference, would be in reality to make 
 the judges prosecutors, (contrary to every idea of justice,) who ought to be 
 pure, and ignorant of all previous impressions of the case. But if the 
 lord advocate is deficient of the due discharge of the duties of his office, 
 the proper channel for redress is by petition to his majesty in council, at 
 whose pleasure the office is held, and who will order an inquiry into the 
 grounds of such complaint. 
 
 The lord advocate is also master of his instance, so that even after he 
 has brought his libel into court, it rests entirely with his own discretion, 
 to what extent or effect he will insist against the culprit ; and he may 
 freely, at any stage of the process, before a verdict is returned, nay after 
 it has been returned, but before judgment has been pronounced, restrict 
 his libel to an arbitrary punishment in the clearest case, even that of a 
 capital crime. Established practice surrounds the lord advocate with 
 peculiar and great privileges : he is not required to find security for 
 reporting or insisting on his criminal letters; nor can he be called on to 
 take his oath of calumny; nor, in the case of a verdict of acquittal, is he 
 liable in any of the statutory penalties, for rash and calumnious accusa- 
 tion. Nevertheless, that the subjects may not be altogether deprived of 
 security against such wrongs or the means of reparation, the statute 
 1579, c. 78, has expressly ordered, that in cases where the king's advocate 
 alone prosecutes, the statutory penalties shall be paid by his informer; 
 which infers the necessity of the king's advocate to name his informer, 
 that the injured party may have access to him for the recovery of 
 damages.f 
 
 To enable the lord advocate to discharge the duties of so important 
 and laborious an office, he is empowered to name deputies to act in his 
 name during his absence. These are the solicitor- general, and three 
 advocates-depute, to which a fourth has been added to attend the winter 
 circuit at Glasgow. His lordship is responsible for their proceedings, 
 but in all cases of difficulty they are regulated by his advice. The 
 
 * Hume on Crimes, if. f Ibid. ii. chap. v. 
 
COURTS OF LAW IN SCOTLAND. 661 
 
 deputies may prosecute in any court in the kingdom, and are not liable 
 for expenses, as they act in the name and on behalf of the crown, which, 
 by the law of Scotland, neither pays nor claims expenses in any criminal 
 case whatever. These public officers generally prosecute before the high 
 court of justiciary, the powers of which extend all over the kingdom, 
 and whose circuits travel twice a-year through its most populous counties. 
 When a crime has been committed in any county or burgh of Scotland, 
 such as murder, robbery, rape, fire-raising, housebreaking, theft, &c., 
 information is immediately lodged by the injured party, witli the procurator- 
 fiscal of the burgh, county, or district where he resides, who makes out a 
 written complaint, which must be signed by the informer in terms of the 
 act of 1701. And in no case can any magistrate commit a prisoner 
 without this signature; and, as mentioned above, if the accusation be 
 groundless or malicious, the informer becomes liable for the whole damages. 
 Should a magistrate commit without that signature, or just grounds, he 
 himself becomes liable for the penalties. This committal, in the first 
 instance, is for further examination, in order to give the injured party 
 time to collect his evidence. It has been decided, that this commitment 
 cannot legally extend beyond seventeen days, without subjecting the parties 
 occasioning it to damages and expenses. When the evidence has been 
 collected, it is reduced to writing, for the purpose of submitting it to the 
 crown counsel, and, if necessary, as serving for their brief on the trial. 
 This duty devolves on the procurator- fiscal, in the presence of the sheriff, 
 magistrate, or justice, before whom the prisoner is taken ; and they are 
 responsible for its accuracy. This is called a precognition^ and if there 
 appear sufficient grounds for committal, the sheriff, &c., grants a warrant 
 accordingly. Immediately on its signature, the prisoner may apply for 
 bail, if it is a bailable ofTence: by statute* the justice must determine 
 within twenty-four hours whether it is a bailable oflfence, and also fix the 
 amount of the bail. 
 
 After commitment, the precognition is immediately forwarded to the 
 crown counsel in Edinburgh, and laid before the advocate-depute for the 
 circuit where the crime was committed : if the case is clear, he decides 
 himself on the prosecution; but if it is of importance, or is attended with 
 difficulties, he takes the opinion of the senior law officers of the crown; 
 when, in either case, an order is immediately given to detain the prisoner 
 for indictment, or forthwith to set him at liberty. If the crown counsel 
 order the prisoner to be discharged, he is set at liberty so far as the 
 commitment by the crown is concerned. But the injured party may pro- 
 secute at his own instance and risk of damages with the lord advocate's 
 
 * 39 Geo. III., c. 49. 
 4 B 
 
5ff» COURTS OF LAW IN SCOTLAND. 
 
 eoncourse, which the court will compel him to grant, but which in practice, 
 however, is never refused. 
 
 If the crown counsel find that there is sufficient ground for prosecution, 
 but that the case would terminate in a fine or short imprisonment, it is 
 remitted for trial to the inferior judge before whom the proceedings 
 originated. But if the crime appear to be more serious, and the evidence 
 complete, the crown counsel direct the accused to be detained for indict- 
 ment j and generally the same counsel who gives this direction, is obliged 
 to prepare the indictment, attend, and conduct the trial himself. The 
 crown counsel are paid fixed salaries, and have no interest whatever in 
 increasing the number of prosecutions, but, on the contrary they thereby 
 augment their own trouble. If they decline to prosecute when there is 
 good evidence, their professional character suffers an irreparable injury, 
 should the private party prosecute to a successful issue. 
 
 The advocates-depute are generally men about tliirty years of age : 
 the immense increase of criminal business, compared with the small amount 
 of their salaries, rendering it impossible to find senior practitioners of any 
 eminence, who will undertake the oflice. It has not, however, been found, 
 that this department of the public business has been either negligently or 
 unsuccessfully conducted; and the greatest lawyers of whom Scotland can 
 boast, have begun their career, and been trained in this school. 
 
 When the case is to be prosecuted by the crown, the proceedings are 
 prepared and the trial is conducted at Edinburgh; and, if the case occurs 
 in the high court, it is under the immediate directions of the lord advocate. 
 If it is on the circuit, the indictment is prepared by the advocate-depute 
 who has been appointed for that circuit. In the indictment the same 
 minute and scrupulous accuracy is required wliich is exacted in an English 
 prosecution; and many particulars must be added for the prisoner's 
 information, which in their practice are not essential. In particular, not 
 only the specific offence itself charged, but the mode in which it was 
 committed, must be recounted with scrupulous accuracy; the place where 
 the crime was committed must be correctly described by Its name, parish, 
 and county; all articles to be used in evidence, must be minutely and 
 accurately described, and submitted to the prisoner's inspection previous 
 to his trial; and a list of witnesses must be annexed to the indictment, 
 containing an accurate description of every witness, by his name, profes- 
 sion, place of residence, parish, and county. The smallest error in any of 
 these particulars, will exclude the prosecutor from the benefit of that 
 article, or witness, at the trial. A copy of the indictment must be delivered 
 to the prisoner by an oflficer, containing all these particulars, fifteen free 
 days at least before his trial, with a list of the assize, and of the witnesses 
 who are to be adduced against him. If there is any variation, except an 
 
COURTS OF LAW IN SCOTLAND. 563 
 
 unimportant clerical error, between the copy delivered to the prisoner, and 
 the record copy of the indictment and list of witnesses, it casts the indict- 
 ment. Before the prisoner can be called on to plead to the indictment, 
 the prosecutor must produce written evidence of its delivery to the prisoner, 
 with the list of witnesses and assize, by a written statement signed by the 
 messenger and witnesses, or " execution," as it is technically called, setting 
 forth the delivery of these important documents. This writ must be 
 scrupulously accurate, and the least error in it entitles the prisoner to 
 postpone his trial, and exposes the officer to the risk of censure or depri- 
 vation of office. If a witness declares in court that his name, surname, 
 profession, place of residence, parish, or county, vary in the slightest 
 degree from the description contained in the indictment, it excludes his 
 testimony on that trial.* 
 
 The witnesses are not examined in Scotland in presence of each other, 
 as is done in England. As soon as the trial commences, the witnesses are 
 enclosed by themselves in a separate apartment; and it is sufficient to cast 
 a witness, if he has heard any part of the evidence given by any other wit- 
 ness, or has had any communication with the prosecutor subsequent to his 
 citation. .The rule invariably followed in Scotland, of compelling the 
 prosecutor to close his evidence before the proof in exculpation begins, 
 gives the prisoner a greater advantage than is enjoyed in the English courts; 
 because he has the benefit of knowing the evidence against him, whilst the 
 prosecutor is almost always ignorant of the line of defence which he may 
 adopt, and cannot produce farther evidence to counteract his defence. 
 
 The assize consists of forty-five persons, or three juries, summoned 
 regularly in rotation, by the sheriffs of the counties. From this list the 
 jury is selected by ballot; each prisoner having a peremptory challenge to 
 the extent of five, and of any number, if he can show cause for their 
 rejection. Prisoners are allowed counsel; and if they are too poor to 
 retain them themselves, counsel are assigned them by the court, which 
 duty no advocate is permitted to decline. If none are present, then the 
 sheriffs of counties, who must be there, are obliged by the court to act as 
 counsel. For many years the immortal author of Waverley, who was 
 slieriff- depute of Selkirk, was regularly nominated to that office at the 
 Jedburgh circuit; and his unrivalled talents, which have established a new 
 era in fictitious writing, and astonished the whole world, were often 
 gratuitously and successfully exerted in the defence of the humblest and 
 most destitute prisoners.f From the great competition at the bar, this 
 duty seldom devolves on the sheriffs, as many young advocates travel the 
 circuit, at a heavy expense to themselves, for the purpose of acquiring 
 information and distinction in their profession. 
 
 * AHiion's Practi^'e, Prefaco. + Ibid. 
 
564 COiniTS OF LAW IN SCOTLAND. 
 
 It is a rule of Scottish evidence, that the prisoner can only be convicted 
 on the testimony of two witnesses, or of one witness, supported by such a 
 chain of circumstantial evidence, as is obviously equal in amount to the 
 evidence of another. In purely circumstantial evidence, a much clearer 
 chain of circumstances is requisite to convict in Scotland, than is considered 
 essential in England. 
 
 On the conclusion of the evidence on both sides, the jury are addressed 
 by the crown counsel, and also by the counsel for the prisoner, who is 
 always entitled to the last word. The prosecutor is never allowed to reply ; 
 but whether in arguing points of law to the judge, or matter of evidence 
 to the jury, the prisoner's counsel is heard last in defence, which gives 
 him an immense advantage, and the legal subtilties of his counsel frequently 
 so embarrass the minds of the jury, as induces them to return a verdict of 
 NOT PROVEN. If the jury cannot agree on their verdict before the court 
 adjourns, their verdict, which is usually oral, must be reduced to writing, 
 and delivered to the court sealed, and no explanation or amendment can 
 be admitted after it is opened. And if it does not in every respect tally 
 with the indictment, the whole proceedings are null, and the prisoner 
 entitled to an acquittal ; and in practice this occurs so frequently, that a 
 written verdict is considered by the bar as affording no inconsiderable 
 chance of a technical error, and consequently of the prisoner's escape. 
 But whether the prisoner escape by this technical informality, or be duly 
 acquitted, the benefit is the same to him: he can never be again tried or 
 imprisoned for the same offence, not even by an alteration in the mode or 
 name of charging the offence.* 
 
 Previous to moving for sentence, the king's advocate has the privilege 
 of " restricting the libel," to any punishment short of death, or of entering 
 a writing upon the record, which disables the judge from pronouncing a 
 capital sentence. This important privilege is not confined to the lord 
 advocate and his deputies, but is enjoyed also by private prosecutors, 
 when pursuing with the advocate's concourse. It is thought that this 
 necessary and important power is most appropriately intrusted to the king's 
 advocate, whose knowledge of the case is more minute and circumstantial 
 than that of the presiding judge — is acquainted with the comparative 
 atrocity of all the cases from the same district — with whose duties, as 
 acting for the crown, this power seems to be more consonant, — and who 
 holds a situation more amenable to the bar of public opinion, and against 
 whom public censure or complaint may more fearlessly be directed. This 
 is a power which can only be exercised in favour of the prisoner; it can 
 only be abused on the side of mercy, but cannot become an instrument of 
 oppression. 
 
 * Alison's Prarlice. 
 
COURTS OF LAW IN SCOTLAND. 565 
 
 In practice, however, many important cases occur, in which, though 
 there may be reason to hope that the life of the prisoner will ultimately be 
 saved, the lord advocate feels that it is beyond the proper line of his duty 
 to restrict the libel, or when he feels that the act of mercy would come 
 with more grace from the crown. In which case the royal mercy is still 
 open to the unfortunate criminal; and in such case the presiding judge 
 never fails to transmit such an account of the trial as ensures a conditional 
 pardon. From the extent to which the lord advocate carries this power 
 of restricting the libel, sentence of death is seldom pronounced without its 
 being carried into execution. And accordingly the effect of a sentence of 
 death on the audience, and the criminals themselves, is greater than those 
 accustomed to the practice of other countries would imagine. Never- 
 theless, there are not, on an average, more than eight or ten persons 
 executed annually in the whole kingdom. 
 
 It has recently been enacted,* that no capital sentence shall be carried 
 into execution in less than fifteen days from its date on the south side of 
 tlie Forth, or twenty days if on the north side of that river; which affords 
 time for the wretched criminal to make his peace with God, whose laws he 
 has violated; and instances frequently occur, in which the prisoner, frou) 
 the opportunity afforded him during that melancholy interval of collecting 
 evidence in support of his petition for the royal mercy, is saved from an 
 ignominious death, from which he would have no other chance of escape. 
 
 In Scotland, prisoners have the power of forcing on their trials; and 
 consequently shortening the duration of their confinement. When com- 
 mitted to gaol, the act of 1701, which is the Scottish Habeas Corpus act, 
 ordains that he shall be furnished with a copy of the warrant for his being 
 committed, and the petition on which it was granted. Which documents 
 acquaint him with his accuser; the grounds of the charge preferred against 
 him; and, besides, the means of establishing his innocence. But if he is 
 desirous of forcing on his trial after being committed, the same statute 
 entitles him to take out letters of intimation against both his accuser and 
 the lord advocate. The purport of these letters is to demand that his 
 trial shall take place within the period fixed by the act of 1701; under 
 certification, that if it be not done, he shall be set at liberty. This 
 proceeding costs about two guineas, but is seldom exacted from indigent 
 prisoners. On the execution of these letters, the lord advocate is obliged 
 to indict the prisoner within sixty days, and to bring the trial to a conclu- 
 sion within forty days thereafter. This obliges the trial to be conducted 
 at Edinburgh, in the intervals of the circuits. If the lord advocate neglect 
 to serve the indictment at the expiration of the sixty, or the trial be not 
 
 * 1 W,il. lV.,c. 37. 
 
566 COURTS OF LAW IN SCOTLAND. 
 
 concluded before the expiration of the hundred days, then the prisoner 
 must instantly be set at liberty, under the penalties of wrongous imprison- 
 ment to the party. These the act 1701 declares to be, for a nobleman, 
 i:ilOO Scots; for a landed gentleman, £6Q: 13 :4)d.; for a burgess, or 
 other gentleman, £33 : 6 : Sd.; and for inferior persons, £6 : 13 : 4id., for 
 each day that he is wrongfully detained. The magistrate or gaoler who 
 fail instantly to obey the provisions of the act, subject themselves to the 
 above penalties. Having in this manner obtained his liberty, the prisoner 
 can no longer be apprehended by any magistrate's warrant, and can only 
 be again imprisoned upon criminal letters issuing from the high court of 
 justiciary, and especially delivered to himself. These letters contain a full 
 indictment, with a list of jury and witnesses ; and the statute is express, 
 that unless the object of these criminal letters is brought to trial within 
 forty days after his apprehension, he shall be at liberty, and he for ever 
 free from all prosecution for the offence, at the instance of the king's 
 advocate, or any other party. If the prisoner has not availed himself of 
 the provisions of the act 1701, the lord advocate, or any of his deputies 
 may, on the trial, move the court to desert the diet, pro loco et tempore, 
 that is, to postpone the trial to a subsequent day. On sufficient cause 
 shown, such as the absence of a material witness, the court will grant the 
 indulgence, and recommit the prisoner; and on a similar application, and 
 for similar cause shown, will allow the prisoner the same indulgence. 
 The court shows a laudable jealousy of the lord advocate's motives, and 
 on the least indication of oppression will compel him to proceed with the 
 trial; and in default of his doing so, will desert the diet simpliciter against 
 the prisoner, and ordain him to be set at liberty. 
 
 The lord advocate cannot imprison any person at his own discretion, or 
 detain him in prison till he obtain his liberation under the act 1701. He 
 has no power, as lord advocate, to imprison any person whatever. He 
 can only present a petition to a magistrate, praying for a warrant of com- 
 mitment; a power which he shares with every individual in the kingdom; 
 and the committal, in the first instance, can only be for examination; and 
 if the prisoner is detained under that warrant more than a reasonable time, 
 say eight or ten days, both the magistrate and private informer are liable 
 in damages. After examination, the magistrate can alone commit the 
 prisoner for trial; and if he should do so without sufficient reason, he acts 
 at his highest peril, and subjects himself in damages to the injured party, 
 whether the application for imprisonment was made by a private prosecutor, 
 the procurator fiscal, or the lord advocate.* It has also been decided, 
 that a prosecution cannot be suspended over the head of a pannel for an 
 indefinite time; and it is a mistake to imagine that the act 1701 affords no 
 
 * Hume oji Crimes — Alison's Praclict of the Criminal Liov of Scotland, 
 
LIEUTENANT AND PARLIAMENT OF lUELAND. 567 
 
 means of forcing on a trial, except to those who are actually in prison. 
 If he has once been committed to stand trial, he becomes entitled to the 
 whole benefit of the act of parliament, of which he cannot be deprived, 
 either by finding bail, or by the prosecutor consenting to his liberation. 
 
 Such is a brief outline of the law and practice of Scotland, and of the 
 powers of the lord advocate, — powers almost unlimited. He represents the 
 king's person; he wields all the power and prerogatives of the crown, without 
 any other control than that of public opinion ; he is the minister of the 
 crown for Scotland, and the greatest personage in the kingdom, and in 
 some respects superior to the court before which he pleads, having the gentle 
 prerogative of mercy within his own breast, by the power of " restricting 
 the libel," a power which the court does not possess, in such cases wliere, 
 from his intimate knowledge of circumstances, he judges it proper to save tlie 
 prisoner from the penalty of death : 
 
 O it is excellent 
 
 To have a giant's strength ; but it is tyrannous 
 To use it like a giant." 
 
 Notwithstanding such transcendent powers, there are scarcely any instances 
 on record, of any lord advocate having abused them for the purposes of 
 cruelty or oppression, but on the contrary, this peculiar prerogative has 
 always been exerted on the side of mercy.* 
 
 LORD LIEUTENANT AND PARLIAMENT OF IRELAND. 
 
 It is matter of dispute whether Ireland became subject to the crown ol 
 England by cession or by conquest; perhaps in reality by both : however, 
 since the armed interference of Henry II., the kings of England have 
 been acknowledged as sovereigns of Ireland, and have intrusted its ad- 
 ministration to the hands of viceroys. At first they were styled keepers 
 or wardens of Ireland, afterwards justices or deputies, and now lord 
 lieutenants; and in their absence, the temporary governors are called lords 
 justices. The power of the lord lieutenants is ample and royal: they 
 were vested with power to make war; to conclude peace; to bestow all 
 offices and preferments, except a few; to pardon all crimes, except that 
 of high treason; to confer the honour of knighthood; and no viceroy in 
 Europe comes so near the state and majesty of a king, in jurisdiction, 
 authority, train, fortune, and provision, as the lord lieutenant of Ireland. 
 
 * Bell's Dictionarj— Hume on Crimes — Fountainhall's Decisions— Sir Gto. M'Ken- 
 zie's Works — Alison's Practice of the Criminal Law of Scotland — Brown's Synopsis — 
 Darling's Practice — Beveridge's do. 
 
568 LORD LIEUTENANT AND 
 
 He is assisted with a privy council formed in the same manner as that of 
 England, consisting of the lord high chancellor, and others of the nobility, 
 bishops, judges, and gentry. When any nobleman enters on this high 
 office, the king's letters patent appointing him are publicly read, after 
 which he takes a solemn oath, in a set form of words before the chancellor, 
 when the sword, which is to be borne before him, is delivered into his 
 hand; and then he is placed in a chair of state, being attended by the lord 
 chancellor, the members of the privy council, the peers of the kingdom, 
 with a king at arms, a sergeant at arms, and other officers of state. 
 
 Assemblies of the prelates, nobles, and commons, were at several times 
 convened as colonial parliaments, or representatives of the English in 
 Ireland; but the first which was regularly and formally assembled in 
 Ireland was in the year 1295, in the reign of Edward I., under Sir John 
 Wogan, the chief governor, in consequence of an invasion from Scotland 
 under the illustrious prince Edward Bruce. Besides summoning the 
 temporal and spiritual lords, the writs to the sheriffs directed them to 
 return two knights for each county and each liberty, or privileged district 
 included in a county. But their transactions clearly exhibit the incom- 
 plete character of these parliaments, as legislative bodies, at that period. 
 First principles were acted upon in the most simple way possible, each 
 community granting subsidies for itself. And as the counties, cities, and 
 boroughs had then the option of electing two, three, or four representatives, 
 it shows that their functions were confined merely to counsel; and also 
 that the general parliament of that day was no more than a meeting called 
 by the king for the purpose of granting him a subsidy. The word parlia- 
 ment, in the common acceptance, meant the aula regis, or king's high 
 court of justice, where his ordinances and decrees, which are now called 
 statutes, were enrolled, and consisted of his greater barons, including the 
 archbishops, bishops, and such of the abbots and priors, as possessed 
 baronial authority in their respective liberties.* 
 
 An entry in the Black Book of the church of the Holy Trinity, Dublin, 
 of the year 1297, shows that the component parts of that parliament con- 
 sisted of archbishops, bishops, abbots, and priors, " whose presence seemed 
 to be necessary," earls, and the restW the optimates of the land, that is, 
 two knights elected in county court, summoned by the sheriflTs, and two 
 knights elected in the courts of the various liberties, summoned by their 
 seneschals; but no writs were directed to the cities and boroughs.f From 
 the reign of Edward II. till that of Henry VI., there are no acts of par- 
 liament recorded in the statute books; but it appears that parliaments 
 were held in the seventh, eighth, tenth, and twenty-fifth years of his reign, 
 
 * Sir William Betham's Dignities, &c., of Parliament, i. 280, \ Ibid. p. 261. 
 
PARLIAMENT OF IRELAND, 569 
 
 under three different chief governors; and from the twenty -eighth year of 
 Iiis reign, they were summoned almost every year under the duke of 
 York, who was lord lieutenant for ten years. Eight parliaments were 
 summoned during the short reign of Edward IV. During that reign a 
 law was passed, which enjoined the residence of the clergy, under the penalty 
 of forfeiture of tlieir benefices for a year's absence, and taking away the 
 benefit of the king's license; also an act prohibiting appeals to England. 
 This last act was prejudicial to the rights of the crown, and perhaps gave 
 rise to that famous law of Sir Edward Poynings, in tlie reign of Henry 
 VII. In the tenth year of this monarch, a number of laws were passed 
 of great importance; the chief of which were that which authorized the 
 treasurer to create delegates, and gave the oflEicers of the treasury the 
 same powers as those in England ; the statute which adopted all the laws 
 of England, antecedent to that period; and lastly, the famous act, em- 
 phatically called Poyning''s law, which regulated the mode of summoning 
 parliaments, and of passing laws. Till this period, laws were passed, and 
 the lord lieutenants gave the royal assent from their own power and 
 authority, in the same manner as the king did in England; but this power 
 having been abused in the disputes between the rival houses of York and 
 Lancaster, particularly by Richard duke of York, it was enacted by 
 Poyning's law that no parliament should be held in Ireland, till the chief 
 governor and council should previously certify to the king the causes and 
 considerations for holding the same ; or, in other words, all the acts which 
 were intended to be passed in the ensuing session of parliament. This 
 law appears to have been rigidly enforced in subsequent parliaments, till the 
 28th and 33d of Henry VIII., when two parliaments were held and con- 
 firmed, notwithstanding the prescriptions of Poyning's law had not been 
 observed. In the latter years of this monarch's reign, and in the fourth of 
 Philip and Mary, an act was passed explanatory of Poyning's law, by 
 which the lord lieutenant and council were permitted to certify to the 
 king, while the parliament was sitting, such provisions as they might deem 
 expedient to be formed into laws during the session of parliament. In the 
 beginning of the reign of Elizabeth, parliaments were repeatedly held, 
 wherein the ecclesiastical jurisdiction of the crown was re-established, and 
 all the acts restoring popery were repealed. Poyning's law was by some 
 considered as the sacred palladium of the English government, and which 
 it was almost sacrilegious to touch ; and to propose its repeal was considered 
 as a political profanation. 
 
 In early times the lord lieutenant gave the royal assent, as the king 
 does in England, without any communication with him, or any parti- 
 cular license. In the reign of Henry VII. it was provided, that all 
 the bills should be previously sent by the lord lieutenant and council to 
 
 4 c 
 
570 LORD LIEUTENANT AND 
 
 England, which were intended to be passed in any parliament, as a reason 
 for holding the same. The extreme inconvenience of this necessary pre- 
 liminary caused two temporary suspensions of this law in the reign of 
 Henry VIII.; and in that of Philip and Mary, propositions for laws or 
 heads of bills, might be transmitted from the council during the sitting of 
 parliament. Till 1782, the practice grounded on these two laws was, 
 that the council sent over a money bill every new parliament, as a reason 
 for its convention, and also such propositions as were made to them from 
 the two houses, while the legislature was sitting, for acts of parliament. 
 But in consequence of a law passed in the said year, no bill could afterwards 
 be transmitted from the council before the meeting of parliament. Latterly, 
 bills passed in Ireland as they do in England, and the lord lieutenant was 
 empowered by commission to give the royal assent similar to the mode in 
 England, when the king does not give it in person. 
 
 Propositions for laws, or heads of bills, originated indifferently in either 
 housa After two readings and a committal, they were sent by the council 
 to England, and were usually submitted by the English privy council 
 to the attorney and solicitor- general : they were then returned to the council 
 of Ireland, who sent them to the commons, if they originated there (if 
 not, to the lords); and after three readings they were sent up to the house 
 of lords, where they went through the same stages; and then tlie lord lieu- 
 tenant gave the royal assent in the same form which is observed in the 
 imperial parliament. In all these stages in England and Ireland, any bill 
 was liable to be rejected, amended, or altered; but when they had passed 
 the great seal of England, no alteration could be made by the Irisli 
 parliament. 
 
 Latterly, Irish parliaments were convoked by proclamation from the 
 crown. Bills originated in either house, and went from one to the other, 
 as they do in the imperial parliament; after which they were deposited in 
 the lords' office, when the clerk of the crown took a copy of them on 
 parchment, which was attested to be a true copy by the great seal of Ire- 
 land on the left side of the instrument. The Irish council then transmitted 
 them to England; and if they were approved of by the king, the copy was 
 returned to Ireland, with the great seal of England on the right side, 
 with a commission to the lord lieutenant to give the royal assent. There 
 are very few instances of the crown having refused Irish bills, or of their 
 not being returned, since the year 1782; but, nevertheless, the royal prero- 
 gative in negativing a bill in Ireland, was as clear a right as it is at this 
 moment in England; and although the crown has seldom exercised this 
 ungracious prerogative, it by no means follows that it either does not 
 possess it, or that it has fallen into disuse.* 
 
 * Lord Mountmorres' History of the Irish Parliament. 
 
PARLIAMENT OF IRELAND. 571 
 
 In the reign of queen Elizabeth, the Irish parliament was more nearly 
 modelled on that of England than it had hitherto been ; and the following 
 account is left by Mr Hooker, of a parliament held by Sir Henry Sidney, 
 her deputy : " On the first day of which parliament, the lord deputy, 
 representing her majesty's person, was conducted and attended in a most 
 honourable manner into Christ's church, and from thence into the parlia- 
 ment house, where he sat under the cloth of estate, being apparelled in 
 princely robes of crimson velvet, doubled or lined with ermine. And then 
 and there, the lord chancellor made a very eloquent oration, declaring 
 what the law wasj of what great effect and value ; how the common society 
 of men was thereby maintained, and each man in his degree conserved, 
 as well the inferior as the superior, the subject as the prince ; and how 
 careful all good commonwealths in the elder ages had been in this respect, 
 which, considering the time, state, and necessity of the commonwealth, did 
 from time to time ordain and establish most wholesome laws, either of 
 their own devices, or drawn from some other commonwealth ; and by these 
 means have prospered and continued. And likewise how the queen's most 
 excellent majesty, as a most natural mother over her children, and as a 
 most vigilant princess over her subjects, hath been always, and now at 
 present is, very careful, studious, and diligent in this behalf, having caused 
 this present parliament to be assembled, and by the counsel and advice of 
 you her nobility, and you her knights and burgesses, such good laws, 
 orders, and ordinances may be decreed, as may be to the honour of 
 Almighty God, the preservation of her majesty, and of her imperial crown 
 of this realm; for which they were not only to be most thankful, but also 
 to do their duties in this behalf." 
 
 On the 2nd of July, 1800, the kingdom of Ireland was united to Great 
 Britain by a formal act of the legislature, by which the kingdom of Ireland 
 is now represented in the imperial parliament of Great Britain. By the 
 articles of Union (for which see page 267), one hundred members were 
 to represent the commons of Ireland in the parliament of the united 
 kingdom; but as the reform bill has entirely altered the representation, we 
 refer to p. 401, for the particulars. Four lords spiritual, or bishops, by 
 rotation of sessions, and twenty-eight lords temporal, elected for life, sit 
 and vote in the imperial house of peers, on the part of Ireland. That 
 kingdom now forms an integral part of the British dominions ; and all the 
 acts of the imperial parliament include Ireland, unless otherwise expressed 
 in the act. 
 
572 CORPORATIONS. 
 
 CORPORATIONS. 
 
 All personal rights die with the person; but there are rights, wliich 
 for the benefit of society, require to be continued when the person in whom 
 they were first invested has become a clod of the valley. Yet as the formal 
 revival and recognition of these rights in a succession of persons, would 
 always be inconvenient 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 are called bodies politic, bodies corporate, or corporations, and 
 are qualified to take, grant, &c. The advantages which are thus derived 
 to the interests of religion, learning and commerce, have been found by 
 experience to be very great. Tlie introduction of corporations into Europe 
 seems to have been effected by Lewis le Gros, who erected the French 
 boroughs into corporations, with the view of relieving the people from the 
 feudal slavery, and of affording them protection, by means of certain privi- 
 leges and a separate jurisdiction. It appears from Doomsday-book, that 
 the greatest boroughs in England at the time of the conquest, were little 
 more than country villages, whose inhabitants were only a number of low 
 dependant tradesmen, living without any incorporation or particular civil 
 tie. 
 
 I To show the advantages of these incorporations, let us consider the 
 case of a college in any of the universities founded ad studendum et 
 orandum, for the encouragement and support of religion and learning. 
 If this were a mere voluntary assembly, the individuals of which it is com- 
 posed might indeed read, pray, study, and perform scholastic exercises 
 together, so long as they should agree to do so ; but they could neitlier 
 frame nor receive any laws or rules for their conduct; none at least which 
 could have any binding force, for want of a coercive power to create a 
 sufidcient obligation. Neither could they be capable of retaining any 
 privileges or immunities; for in the event of such privileges being attacked, 
 which of all this unconnected assembly has the right or ability to defend 
 them ? And when they are dispersed by death or otherwise, how shall 
 they transfer these advantages to another set of students equally uncon- 
 nected as themselves ? The case is the same also in respect of holding 
 estates or other property, if land be granted for the purposes of religion 
 or learning to twenty individuals not incorporated, there is no legal way of 
 continuing or transmitting the property to any other persons for the same 
 purposes, but by endless conveyances from one to another, as often as the 
 parties are changed. But when they are consolidated, and united into a 
 
CORPORATIONS. 573 
 
 forporation, they and their successors for ever are considered in law only 
 as one person, who never dies : as one person, they have but one will, 
 which is collected from the sense of the majority of the individuals : this 
 individual may establish rules and orders for the regulation of the whole, 
 which are a sort of municipal law for this little commonwealth j or rules and 
 statutes may be imposed on it at its creation, which then take the place of 
 natural laws : the privileges and immunities, the estates and possessions of 
 the corporation, when once they are vested in them, will remain for ever 
 invested, without any new conveyance to new successions; for all the 
 individual members that have existed from the foundation to the present 
 time, or shall hereafter exist, are but one person in law, a person who 
 never dies. In the same manner as the Thames, the Clyde, or the Forth, 
 are the same rivers still, although the parts which compose them have 
 been changing every instant from their first creation, ages ago. 
 
 These political constitutions seem to have been originally invented by 
 the Romans; and Plutarch informs us that they were introduced by one 
 of their early kings, Numa; who, on his accession to the throne, finding 
 that the city was torn to pieces by the two rival factions of the Sabines 
 and Romans, conceived the politic idea of subdividing these two into many 
 smaller ones, by instituting separate societies of every manual trade and 
 profession. They were afterwards held in much consideration by the civil 
 law, in which they were called universitates, as forming one whole out of 
 many individuals; or collegia, from their being gathered together : they 
 were also adopted by the canon law, for the maintenance of ecclesiastical 
 discipline; and from them our spiritual corporations are derived. But 
 our laws have considerably refined and improved upon the invention, 
 according to the usual genius of the English nation, particularly by the 
 invention of corporations sole, that is, consisting of one person only, of 
 which refinement the Roman lawyers had no notion whatever; their maxim 
 being, that three persons made a corporation ; though they held that if a 
 a corporation consisting originally of three persons should be reduced to 
 one, it may still subsist as, and be called, a corporation. 
 
 The law of England recognises two sorts of corporations, viz. aggregate 
 and sole. 
 
 A corporation aggregate, consists of many persons 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 church. 
 
 A corporation sole, consists of a single person and his oflScial successors 
 in some particular station, who are incorporated by law in order to give 
 them some legal advantages, particularly that of perpetuity, which in their 
 natural persons they could not have. In this sense, the king is a corpo- 
 
674 CORPORATIONS. 
 
 ration sole : so is a bishop j so are some deans and prebendaries, distinct 
 from their several chapters; and so is every parson and vicar. 
 
 The wisdom of the law is manifest in making a parson or vicar a body 
 corporate, because originally the freehold of the churchyard, parsonage 
 house, or manse as it is called in Scotland, the glebe, and the tithes, were 
 vested in the parish clergymen, as a temporal recompense for their spiritual 
 services to the people, and with the intent that the same emoluments should 
 for ever afterwards continue as a recompense to their successors. And 
 had not the law prevented it by this fiction, the freehold would have 
 descended to the heirs of the clergy instead of to their successors, and they 
 would have been liable for their debts and incumbrances; or at best tiieir 
 heirs might have been compellable, at considerable trouble and expense, to 
 convey these rights to the succeeding incumbent. The law, therefore, 
 has wisely ordained, that the parson or parish minister shall never die, any 
 more than the king, by making both him and his successors a corporation; 
 by which means all the original rights of the parsonage are preserved entir© 
 to his successor; for the present incumbent or minister, and his predecessor 
 who lived seven centuries ago, are in law one and the same person; and 
 what was given to the one was given to the other also. 
 
 Bodies corporate are again divided into ecclesiastical and lay, which 
 may be either sols or aggregate. 
 
 Ecclesiastical corporations, are when the members that cbmpose them 
 are entirely spiritual persons; such as bishops, certain deans and preben- 
 daries; all archdeacons, parsons, and vicars; these are sole corporations. 
 Deans and chapters at present, and in popish times, priors and convents, 
 abbots and monks, and the like, are corporations aggregate. These 
 corporations were instituted for promoting religion and perpetuating its 
 benefits in the world. 
 
 Other lay corporations have been erected for the good government of a 
 town or particular district, as a mayor or commonalty, bailiff, and burgesses, 
 or the like : some for the advancement and regulation of manufactures 
 and commerce; as the trading companies of London and other towns; and 
 some for the better carrying on of special purposes, as church wardens, 
 for the conservation of the goods of the parish ; the college of physicians, 
 and company of surgeons, in London, for improving the medical science; 
 the royal society, for the advancement of natural knowledge ; and the 
 society of antiquaries, for the study of antiquities. The eleemosynary sort, 
 are such as are constituted for the perpetual distribution of the free alms 
 or bounty of their founder, to such persons as he has directed. Of this 
 kind are all hospitals for the maintenance of the poor, sick, and impotent; 
 and all colleges, both in and without the two universities of Oxford and 
 Cambridge; which colleges are founded for two purposes: 1. For the 
 
CORPORATIONS. 575 
 
 promotion of piety and learning by proper regulations and ordinances; 2. 
 For imparting assistance to the members of those bodies, in order to enable 
 them to prosecute their devotion and studies with greater ease and assiduity. 
 And all these eleemosynary corporations are strictly speaking lay^ and 
 not ecclesiastical, even although they be composed of ecclesiastical persons, 
 and although in some things they partake of the nature, privileges, and 
 restrictions of ecclesiastical bodies. 
 
 Having now pointed out the several species of corporations, we will 
 consider, I. How corporations in general may be created. II. What are 
 their powers. And, III. How they may be dissolved. 
 
 I. Corporations may be created either by common law, by prescription, 
 or by act of parliament. But as the king's consent is absolutely neces- 
 sary, any 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. The king's implied consent is to be found in 
 corporations which exist by force of the common law, to which former 
 kings are supposed to have given their consent; common law being nothing 
 else than custom arising from the universal agreement of the whole com- 
 munity. Of this sort are, by a fiction of law, the king himself, all bishops, 
 parsons, vicars, church wardens, and some others; who have ever been 
 held in common law (as far as law books can show) to have been corpora- 
 tions virtute officii; and this corporation is so inseparably annexed to 
 their offices, that we cannot frame a complete legal idea of any of those 
 persons, but we must have an idea of a corporation, capable of transmitting 
 his rights to his successors at the same time. Another method of impli- 
 cation, whereby the king's consent is presumed, is as to all corporations 
 by prescription, such as the city of London, and many others, which have 
 existed as corporations beyond the memory of man; and therefore are 
 considered in law to be well created. For although the members thereof 
 can show no legal charter of incorporation, yet in cases of such high anti- 
 quity, the law presumes that there once was one, and that by variety of 
 accidents, which the lapse of time may produce, the charter has been lost 
 or destroyed. The methods by which the king's consent is expressly given, 
 are either by act of parliament or charter. Corporations may certainly 
 be created by act of parliament, for to that the king's consent is absolutely 
 necessary to make an act; but it is to be observed, that most of those 
 statutes which are usually cited, as having created incorporations, either 
 confirm such as have before been created by the king; as in the case of 
 the college of physicians, created by charter in the tenth year of the reign 
 of Henry VIII., which charter was afterwards confirmed by act of parlia- 
 ment; or they recognise the king's right to erect a corporation infuturoy 
 with such and such powers, as in the case of the bank of England, and the 
 
S7G CORPORATIONS. 
 
 society of the British fishery, so that in fact the king is the creator by 
 means of his royal prerogative. All other methods, therefore, by which 
 corporations exist, by common law, by prescription, and by act of parlia- 
 ment, are for the most part reduceable to this of the king's letters patent, 
 or charter of incorporation. The king's creation may be performed by 
 the words, creamus, erigimus^ fundamus^ incorporamus , or such like. 
 Nay, it is even held, that if the king grants to a set of men to have a 
 " mercantile meeting or assembly," it is alone sufficient to incorporate and 
 establish them for ever. The king may grant the power of erecting cor- 
 porations to a subject ; that is, he may permit the subject to name the 
 persons and powers of the corporation at his pleasure; but it is in reality 
 the king who erects, and the subject is but his instrument; for though 
 none but the king alone can make a corporation, yet he who acts by the 
 instrumentality of another is himself the operator. In this manner, the 
 chancellor of the university of Oxford has power by charter to erect cor- 
 porations, and has actually often exerted it in the erection of several 
 matriculated companies of tradesmen subservient to the students, which 
 incorporations are at present subsisting, nevertheless it is still the king 
 who in reality erects, only using the instrumentality of the chancellor. 
 
 IT. When a corporation is erected, it is necessary that a name be given to 
 it; and by that name alone it must sue and be sued, and do all legal acts. 
 When a corporation is once formed and named, it acquires various powers, 
 rights, capacities, or incapacities; some of which are incident to all corpo- 
 rations, such as the right of electing members to keep up perpetual suc- 
 cession, which is the very end and design of its incorporation ; and therefore 
 all aggregate corporations have a necessarily implied power in electing 
 members in the place of those who die or are removed ; the power of doing 
 all such legal acts as natural persons may perform; to sue and be sued, 
 implead or be impleaded, grant or receive by its corporate name, the same 
 as an individual person; of purchasing lands and holding them for them- 
 selves and successors; of having a common seal, the affixing of which 
 makes one joint assent of the whole community : for a corporation being 
 an invisible body, cannot manifest its intention by any personal act or oral 
 discourse, it otherwise acts and speaks only by its common seal; for 
 though the particular members may express their private consents to any 
 acts by words, or signing their names, yet these do not bind the corpora- 
 tion; it is the affixing of the common seal, and that only, which unites the 
 several assents of the individuals composing the community, and makes a 
 joint assent of the whole ; and of making bye-laws for the better govern- 
 ment of the society; which laws, however, must not be contrary to the 
 laws of the land, otherwise they are void. But no trading company in 
 Great Britain is allowed to make bye-laws, wTiich in any wise aflfect the 
 
CORPORATIONS. 577 
 
 king's prerogative, or the common profit of the people, under a penalty ok* 
 forty pounds, unless they be approved of by the chancellor, treasurer, and 
 chief justices, or the judges of assize in tiieir circuits; and even though 
 they be so approved, still if contrary to law they are void. These powers 
 are inseparably incident to all aggregate corporations; for although two 
 of them may be practised by a corporation sole, yet they are very unne- 
 cessary, viz to have a corporate seal to testify his sole assent, and to make 
 statutes for his own government. There are certain disabilities attached 
 to aggregate corporations. They cannot commit treason or any other 
 olfence, in their corporate capacity, though they may as individual 
 members. 
 
 Corporations have a capacity to purchase lands for themselves and 
 successors; but they are excepted out of the statute of wills; so a devise of 
 lands to a corporation is not good, except it be for charitable uses. And 
 even their privilege of purchasing from any living granter is much abridged 
 by several statutes; so that before they can exert that capacity with which 
 they are invested by the common law, a corporation, either lay or eccle- 
 siastical, must have a license to purchase from the king. 
 
 The particular duty of a corporation, is to act up to the end or design, 
 whatever it be, for which it was created. 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 and abuses that may 
 arise in any corporation, whether sole or aggregate, and to rectify their 
 irregularities or misconduct. Formerly the pope, but now the king, is the 
 le^al visitor of the archbishops of Canterbury and York; the archbishop has 
 the charge of all the bishops in his province; and the bishops superintend 
 all deans and chapters, parsons, vicars, and all other spiritual corporations 
 in their respective dioceses. The founders, their heirs or assigns, are the 
 visitors of all lai/ corporations, whether civil or eleemosynary. 
 
 By the founder of a corporation, in the strict and original sense of the 
 term, the law understands to be the king, who alone can incorporate a 
 sjciety; so that in civil corporations, there is no other founder than the 
 king. But in the case of eleemosynary foundations, such as colleges and 
 hospitals, where there is an endowment of land, 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 alone all misbehaviours of this kind of corporations 
 are inquired into and redressed. It is not, however, customary in pro- 
 fessional language, 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. 
 
 III. How a corporation may be dissolved. Any particular member of 
 
 4 D 
 
578 CORPORATIONS. 
 
 a corporation may be disfranchised, or be deprived of his place in it, by 
 acting contrary to the laws of the society, or the laws of the land, or he 
 may voluntarily resign his rights and privileges. But the body politic 
 itself may also be dissolved in several ways, which dissolution is its civil 
 death; and when it becomes defunct, their lands and tenements revert to 
 the person or his heirs who originally granted them to the corporation, 
 because the law annexes a condition to every such grant, that if the cor- 
 poration shall be dissolved, the granter shall have his lands again, on 
 account of the failure of the cause of the grant. The grant continues 
 indeed only during the existence of the corporation, which maij endure 
 for ever, but when that life is determined by the dissolution of the body 
 politic, the granter takes it back by reversion, as in the case of any other 
 grant for life. 
 
 Corporations may be dissolved by act of parliament, which is boundless 
 in its operations; by the natural death of all its members, in cases of 
 aggregate corporations; by surrender of their franchises into the king's 
 hands; and by forfeiture of their charters, through negligence or abuse of 
 tlieir privileges ; in which case the law judges that the body politic has 
 broken the conditions on which it was incorporated, and therefore the 
 incorporation is void. In the abuse of its franchise, a writ quo warranto 
 is granted to inquire by what warrant the members now exercise their 
 corporate power, having forfeited it by such and such proceedings. When 
 a corporation is dissolved, the endowment reverts to the heirs of the patron 
 who endowed it. By such dissolution its debts, either to or by it, are 
 totally extinguished, and its members are neither individually nor collec- 
 tively accountable for them. 
 
 When king Charles II. enforced the law, by issuing the writ of quo 
 warranto against the city of London, the other corporations throughout 
 the kingdom surrendered their charters into the king's hands. He after- 
 wards restored their charters under certain conditions. But after the 
 Revolution, the statute 2 W. and M. reversed the judgment against the 
 city of London, and enacted, that its franchises shall never more be for- 
 feited for any cause whatever.* And because, by the common law, 
 corporations were dissolved, in case the mayor or head officer was not 
 duly elected on the day appointed in the charter, or by the custom estab- 
 lished by prescription, it is now provided that in future no corporation 
 shall be dissolved upon that account; and ample directions are given for 
 appointing a new officer, in case there be no election, or a void one made 
 upon the charter or prescriptive day. 
 
 On the 13th April, 1829, a bill passed both houses, after violent 
 
 * Cuslance on the Constitution. 
 
CORPORATIONS. 579 
 
 debates, and received the king's consent, for admitting Roman Catholics 
 into all the lay corporations in the kingdom, but reserved from the righ* 
 of interference with the ecclesiastical incorporations * 
 
 The parliament which met at London, 8th May, 1661, enacted for the 
 protection of the corporations, from the Roman Catholics and noncon- 
 formists becoming predominant in them, a law generally known as the 
 corporation act. It is entitled " an act for the well governing and regulating 
 corporations," and enacts, — 
 
 *' that within the several cities, corporations, boroughs, cinque ports, and other port towns 
 within the kingdom of England, dominion of Wales, and town of Berwick on Tweed, all 
 mayors, aldermen, recorders, bailiffs, town clerks, common council men, and other persons 
 bearing any office or offices of magistracy, or places of trust, or other employment, relating 
 to or concerning the government of the said respective cities, corporations, and boroughs and 
 cinque ports, and their membei-s, and other port towns, shall take the oaths of allegiance and 
 supremacy, and this oath following : 
 
 " I, A. B do declare and believe, that it is not lawful upon any pretence whatsoever, to 
 take arms against the king ; and that I do abhor that traitorous position of taking arms by 
 his authority against his person, or against tliose that are commissioned by him. 
 
 " They shall also subscribe the following declaration: 
 
 "1, A. B. do declare that there lies no obligation upon me from the solemn league and 
 covenant; and that the same was an unlawful oath imposed on the subject against the lav/e 
 and liberties of the kingdom. 
 
 •* Provided also, and be it enacted by the authority aforesaid, that no person shall be 
 hereafter elected or chosen into any of the offices or places aforesaid, that shall not have 
 within one year next before such election or choice taken the sacrament of the lord's supper 
 according to the rites of the church of England j and that every person so elected shall take 
 the aforesaid oaths, and subscribe the said declaration, at the same time when the oath for 
 the due execution of the said places and offices shall be respectively administered." 
 
 This act excluded the dissenters in England from filling public oflSces 
 either under the government or in boroughs, unless they had, within the 
 compass of a year, taken the sacrament according to the rites of the church 
 of England. Of this the dissenters loudly complained. But they always 
 complied with the act; and communicated at their parish churches previous 
 to entering into oflice. This they continued to do for many years, but 
 in consequence of the dislike which conscientious men would naturally 
 feel at communicating with a church from which they had dissented because 
 they had conceived that it was not a true church, the act was so often 
 evaded altogether, that, in the liberal opinions of the age, an act of indem- 
 nity was annually passed to save those from the penalties of the act who 
 had either neglected or refused to communicate at the parish church. So 
 that in effect this act lay almost a dead letter, and no one had of late 
 years been in any way incommoded by it. Many attempts, however, were 
 made to procure its repeal, at different times, especially in 1787, when it 
 was warmly agitated in the house of commons, and pamphlets and other 
 
 ,„*. ^? ^.^''- iJ-' ^ ^"•' ^^^- '4, 15 J for Relief of his Majesty's Roman Catholic Subjects : 
 13th April, 1829. See p. 328. 
 
580 CORPORATIONS. 
 
 publications issued in abundance from the press on both sides of the ques- 
 tion. In this debate Lord North contended that the test acts were and 
 ought to be carried into execution, though he observed, " tliere were in- 
 stances in which persons had introduced themselves into corporations without 
 taking the test, because they relied on the annual indemnity act, which saved 
 them." This sort of merdal fraud^'' continued his lordship, " did not 
 recommend these persons to the indulgence of the legislature : it was an 
 evasion and an abuse of an act of parliament, which solemnly and sub- 
 stantially required that the test should be given fairly and truly." 
 
 The tirst or corporation act, 13 Car. II., was passed, as we have said, 
 in 1661, and its design was merely to prevent the adherents of Cromweirs 
 government from getting possession of the corporations in the boroughs, 
 and thereby to endanger the monarchy by their plotting to restore the repub 
 lican commonwealth which had just then been subverted. Commissioners 
 were appointed under the act to administer the oaths which it prescribes. 
 The act of uniformity had not been at that time passed, and the dissenters 
 made then little or no scruple of communicating either with each other or 
 with the established church. It had been the custom among the earliest 
 puritans to " communicate with the church in word and sacraments," 
 during the 6rst part of the grand rebellion, when the presbyterians gained 
 an ephemeral establishment in England. The independents did not object 
 to communicate occasionally with the presbyterians, and to receive their 
 members to communicate in return; and it is very remarkable, that out 
 of fifty-six presbyterian members in the house of commons when the bill 
 was passed, only two of them made objections to receiving the sacrament 
 according to the rites of the established church, when it was administered 
 " to see whether they were all protestants." And even the Roman 
 catholics communicated with the protestant episcopal church of England^ 
 in the earlier part of queen Elizabeth's reign, till they were commanded to 
 abstain by a bull of pope Clement VIII. 
 
 The second of the statutes affecting protestant dissenters is the test act^ 
 by which they were excluded from places of civil and military trust and 
 offices. This act was passed in 1672, and was the 25th of Charles II.; 
 it was entitled " An act for preventing danger which may happen from 
 popish recusants." It provided that any person admitted into office, or 
 receiving pay from his majesty, or holding any command or place of trust 
 under him, or in his household, shall, within three months (but three was 
 afterwards extended to six months) receive the sacrament according to the 
 usage of the church of England, and produce a certificate thereof, under 
 the penalty of incapacity for the office, and avoidance of the appointment; 
 and (in case of acting without compliance) of being subject on conviction, 
 to disability for serving in any court of justice, from acting as a guardian. 
 
CORPORATIONS. 581 
 
 executor, or administrator, or receiving a legacy or gift, or bearing any 
 office in England or Wales; and also to the paynnent of a fine of .£500, 
 the whole of which went to the informer. 
 
 It is obvious that this act was intended to operate against the Roman 
 catholics, and had no reference to the protestant nonconformists; neither 
 did it exclude them from seats in parliament. The statute, 30 Charles II., 
 which was passed five years afterwards, in some degree furnishes a clue to 
 the feeling which dictated the test act. It recites that the previous act 
 " had not the desired effect, by reason of the free access which popish 
 recusants have had to his majesty," and extends the exclusion to members 
 of parliament, but in such a way as not to include the protestant dissenters 
 in its operation. It entirely omitted the sacramental test, and prescribed 
 a declaration against popery, to be signed as the qualification for filling a 
 seat in parliament, and also for acting as a sworn servant of his majesty, 
 which last provision was afterwards repealed, so that the act operated only 
 to the exclusion of the Romanists from parliament. It may be farther 
 added, that a bill for the express exemption of the protestant dissenters 
 from the operation of the test laws, whom the act of uniformity, 14 of 
 Charles II., had thrown into a separate body, passed the commons and 
 was entertained by the peers in the same session in which the test act was 
 passed; and a motion for incapacitating them to sit as members of parlia- 
 ment, was lost by a considerable majority. The house of commons have 
 repeatedly in strong terms disavowed the application of these laws to them, 
 as " grievous to the subject," and " dangerous to the peace of the king- 
 dom." Occasional conformity for the sake of place and power, continued 
 to be very usual, and a comprehension of all sects and parties under the 
 wings of the church, was even contemplated by the nonconformists at one 
 time. The question of the lawfulness or duty of such a conformity was 
 much canvassed, and many arguments were advanced to avoid the sin of 
 schism in all matters not deemed to be essential. At a meeting of the 
 nonconformist ministers in 1666, after the act of uniformity was passed, 
 it was agreed that communion with the established church of England, 
 was in itself lawful and good; and the practice of occasional conformity 
 was so frequent, that in 1711, the spirit of the laws of Charles II. was 
 enforced by an act requiring not merely the taking of the sacrament, but 
 perfect and entire conformity to the establishment. This act was however 
 repealed in 1718, and the practice was in effect regulated by a provision 
 against any officers of corporations taking their insignia of office to non- 
 conformist places of worship. 
 
 The corporation act, the test act, and the act of uniformity, were all 
 passed for the protection and legal fences of the church of England, and 
 were rendered necessary by the apprehensions on the score of popery. 
 
682 MILITARY AND MARITIME STATES. 
 
 which was at that time meeting with great encouragement at courL; and 
 also from the specimen of the moderation of the assembly of divines who 
 met at Westminster, and who at first pretended only to moderate the 
 episcopacy a little, to reform the liturgy, and give ease to tender con- 
 sciences, but who ended their work by tearing the church of England up 
 by the roots, banishing her prelates, and prohibiting the use of the liturgy 
 entirely, under very heavy penalties: therefore these acts were passed soon 
 after the Restoration as her legal fences. During the administration 
 of the duke of Wellington, these legal fences were removed by an act* 
 which passed both houses of parliament, and received the royal assent on 
 the 9th May, 1828. This act repealed the test and corporation acts. 
 After which it was not necessary for dissenters to receive the sacrament 
 according to the rites of the church of England. They became eligible 
 also to enter the corporations. This act will be found at page 308. It 
 was a preparatory measure to enable the administration to repeal all the 
 acts which affected the Roman catholics, and which took place the following 
 year, on the 13th Apiil, 1829.t 
 
 MILITARY AND MARITIME STATES. 
 
 The military state includes the whole of the soldiery; or such persons 
 as are peculiarly appointed among the rest of the people, for the safeguard 
 and defence of the realm. 
 
 Almost every page of iiistory is polluted with blood. '^ Whence come 
 wars and fightings ? Come they not hence, even of your lusts, that war 
 in your members ?" Pride, lust, and envy, have in all ages conspired 
 against the peace of society, and disturbed the repose of mankind. These 
 vicious passions have at all times been the cause of that " distress of 
 nations," which is the necessary consequence of all wars and tumults. 
 Self-preservation, however, being the first law of nature, those peaceable 
 nations which are exposed to the rapacity of neighbouring powers of a 
 more warlike or turbulent character, have found it necessary for their 
 own safety to assume a warlike position. 
 
 It is extremely dangerous, in a land of liberty, to make the profession 
 of arms a distinct order, because in free states, the profession of a soldier, 
 taken singly and merely as such, is justly an object of jealousy. The laws 
 and constitution of these kingdoms know no such state as that of a per- 
 petual standing soldiery, bred up to no other profession than that of war. 
 
 * 9 Geo. IV, c. 17. 
 
 f 10 Geo. IV., c. 7. — Statutes at Large — Rlackslone's Commentaries, with Professor 
 Christian's Notes — Custance on the Constitution 
 
MILITARY AND MARITIME STATES'. 583 
 
 It was not till the reign of Henry VII. that the kings of England had 
 even so much as a guard about their persons; and it was not till after the 
 Revolution in 1688, that a perpetual standing army was kept up, rendered 
 necessary by the wars into which that event plunged England. 
 
 At his coronation, Henry VII. instituted, partly from pomp, but chiefly 
 from personal vanity, a band of fifty archers, who were termed yeomen of 
 the guard. Henry was quite conscious that his title was questionable. 
 Aware that an appearance so novel, and to which Englishmen were so 
 unaccustomed, might naturally impress his subjects with the idea that he 
 entertained a jealousy of their loyalty, and lest they might imagine that this 
 force was raised to intimidate them, he declared the institution to be per- 
 petual; and accordingly they form a part of the " pomp and circumstance" 
 of the court of St James to this day, and are still habited in the original 
 uniform of the days of Henry VII. Our Scottish monarchs were not 
 long in copying this piece of royal state and parade, and accordingly a 
 body of yeomen were soon after embodied at Holyroodhouse by James V. 
 
 It seems universally agreed by all historians, that king Alfred first 
 settled a national militia in England, and made all the subjects of his 
 dominions soldiers, by a prudent discipline : but we are unfortunately left 
 in the dark as to the particulars of this his so celebrated regulation. 
 Under the Saxon monarchs of England, as appears from the laws of 
 Edward the Confessor, the military array of England was under the 
 command of dukes, that is leaders, or heretochs, who were constituted 
 through every province and county in the kingdom; being elected from 
 the principal nobility, and such as were remarkable for their wisdom, 
 fidelity, and courage. Their power was almost unlimited, and their duties 
 were, to lead and regulate the armies of England. On account of this 
 great power and important trust, these leaders were generally elected by 
 tlie Wittenagemot, or great council of the nation, agreeable to the ancient 
 Saxon constitution, which was extremely jealous of intrusting power to 
 those who might abuse it for the oppression of the people. This custom 
 was common too among the Germans, from whom our Saxon ancestors 
 sprang, who had their military leaders, as well as kings; the former pos- 
 sessing an independent power over the military, as the kings exercised an 
 absolute authority over the civil state. The leaders, or dukes, were 
 elective, the kings hereditary. In the succession of their kings the right 
 of primogeniture was adhered to, but in choosing the commanders of 
 armies, courage, experience, and warlike merits, were the criterions. 
 This unlimited power conferred on the military leaders, though intended 
 for the benefit of the people, was highly detrimental to the prerogatives 
 of the crown, which we have already shown, is more beneficial to the 
 subjects when strong, than when in any way diminished by the encroach- 
 
584 
 
 MILITARY AND MARITIME STATES. 
 
 ment of the people or any inferior power. In the reign of Edmund 
 Ironside, Edric, duke or heretoch of Mercia, by the unlimited nature of 
 liis command in the king's army, and by his own repeated treacheries, at 
 last enabled Canute the Dane to usurp the crown of Englanl. 
 
 Upon the Norman Conquest, the feudal law was introduced here in all 
 its rigour, the whple of which is built on a military plan. All the lands 
 in the kingdom were divided into what were called knights' fees, con- 
 sisting of sixty thousand. A knight or soldier, miles, was bound to 
 attend the king in his wars for forty days in a year, in which space of 
 time, before war was reduced to a science, the campaign was generally 
 finished, and a kingdom either conquered or victorious ; by which 
 sagacious plan, William the Conqueror Iiad an army of sixty thousand 
 men, without any expense, constantly ready at his command, and he com- 
 manded, under very severe penalties for neglect, the personal service of all 
 knights and others. This personal service in process of time degenerated 
 into pecuniary commutations or aids, and at last the military part of the 
 feudal system was abolished at the Restoration by the statute 12 Char. IT. 
 But although in the feudal times there was not a standing army for the 
 suppression of internal insurrection, or the defence of the kingdom against 
 external invaders, yet we are not to imagine that the kingdom was left 
 wholly without defence. Besides those who by tlieir military tenures 
 were bound to perform forty days' service in the field, there were first the 
 assize of arms, enacted by Henry II., and afterwards the statute of Win- 
 chester under Edward I., which obliged every man, according to his estate 
 and degree, to provide a determinate quantity of such arms as were then 
 in use, in order to keep the peace; and constables were appointed in every 
 hundred, by the Winchester statute, to see that such arms were provided. 
 These weapons were changed in conformity with the change introduced 
 by the use of gunpowder, by the statute of Philip and Mary, and other 
 arms of more modern invention substituted; but both these were again 
 repealed by James I. During the continuance of the two former statutes, 
 it was usual for the sovereigns to issue commissions of array, and to send 
 into every county, officers in whom they could repose confidence, to 
 muster and set the inhabitants of every district into military array. The 
 form of this commission of array was settled in parliament in the reign of 
 Henry IV., when at the same time it was provided, that no man should 
 be compelled to go out of the kingdom at any rate, nor even out of his 
 county, but in cases of urgent necessity; nor should provide substitutes, 
 but by consent of parliament. Every man was obliged, according to liis 
 estate and degree, to provide a determinate quantity of sucli arms as were 
 then' in use, in order to keep tlie peace. About the reign of Henry 
 VIII. and his children, lord lieutenants began to be introduced as standirg 
 
MILITARY AND MARITIME STATES. 585 
 
 representatives of tlie crown to keep the counties in military order. In 
 the reign of bloody Mary, they are spoken of as known and regular 
 officers, though they could not have been many years in use; and 
 Camden mentions them in the reign of Elizabeth as extraordinary 
 magistrates, that were constituted only in times of difficulty and danger. 
 
 Military affairs continued in this state till the repeal of the statutes of 
 armour by James I. Afterwards, when king Charles I. was under the 
 necessity of raising armies for the suppression of the rebellion in Scotland, 
 he issued commissions of lieutenancy, and exercised those military powers 
 wliich, from immemorial usage, as well as natural right, had been the 
 prerogative of the crown. But the long parliament, stepping beyond the 
 line of their duty and allegiance, disputed this undoubted prerogative, 
 alleging that it merely rested on immemorial usage. Great heats and 
 animosities were displayed in debating this unconstitutional question. The 
 decision of this against the king, became at last the immediate cause of 
 the fatal rupture between that patriotic prince and his rebel 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 after the happy Restoration, when the nation was delivered 
 from the cruel military bondage of Oliver Cromwell, the parliament 
 recognized the sole right of the king to govern and command the military 
 state, by the following statute : " Forasmuch as within all his majesty's 
 realms and dominions, the sole supreme government, command, and dis- 
 position of the militia, and of all forces by sea and land, and of all forts 
 and places of strength, is, and by the laws of England ever was, the 
 undoubted right of his majesty and his royal predecessors, kings and 
 queens of England, and that both or either of tlie houses of parliament 
 cannot nor ought to pretend to the same ; nor can, nor lawfully may 
 raise or levy any war, ofTensive or defensive, against his majesty, his heirs 
 or lawful successors ; and yet the contrary thereof hath of late years been 
 practised, almost to the ruin and destruction of this kingdom; and, during 
 the late usurped government, many evil and rebellious principles have been 
 instilled into the minds of the people of tliis kingdom, which, unless prevented, 
 may break forth to the disturbance of the peace and quiet thereof."* 
 
 Soon after the restoration of Charles II., when the military tenures 
 were abolished, it was thought proper to ascertain the power of the 
 militia, to recognize the sole right of the crown to govern and command 
 them, and to put the whole into a more regular method of military 
 subordination; and the order, in which the militia now srfands by law, is 
 principally built upon the statutes which were then enacted ; the general 
 
 * 13 Ch. II. c. 6. 
 
 4 B 
 
686 MILITARY AND MARITIME STATES. 
 
 scheme of which is to discipline a certain number of the inhabitants of 
 every county, chosen by lot for three years, and officered by the lord 
 lieutenant, the deputy-lieutenant, and other principal landholders, under 
 a commission from the crown. They cannot be compelled to march out 
 of their counties, unless in cases of invasion or actual rebellion, nor in any 
 case to march out of the kingdom. They are to be exercised at stated 
 times, and their discipline in general is liberal and easy; but when drawn 
 out into actual service, they are subject, like regular troops, to the rigours 
 of martial law, which is absolutely necessary for the preservation of dis- 
 cipline. This is the constitutional security which the British laws have 
 provided for the public peace, and for protecting the realm against foreign 
 or domestic violence; and which the statutes declare are essentially neces- 
 sary for the safety and prosperity of the kingdom. 
 
 But when the nation was engaged in war, more veteran and better 
 disciplined troops were esteemed necessary, than could be expected from a 
 mere militia; and therefore at such times more vigorous methods were 
 adopted for the raising of armies and the due regulation and discipline of 
 the soldiery, which are merely to be viewed as temporary exCTescences 
 arising out of the violence of men's passions, rather than as a permanent 
 and perpetual law of the kingdom; because martial law is built upon no 
 settled principles, but is entirely arbitrary in its decisions, and is, as Sir 
 Matthew Hale observes, in truth and reality no law, but something per- 
 mitted rather than enacted as law. Order and discipline in the army is of 
 absolute necessity. Martial law, therefore, ought not to be permitted in 
 time of peace, when the king's courts are open for every one to receive 
 justice according to tlie known laws of the land. And it is upon record, 
 that Thomas, earl of Lancaster, being convicted by martial law at Ponte- 
 fract, in the fifteenth year of the reign of Edward II., his attainder was 
 reversed by Edward III., and his corruption of blood restored, on account 
 of the illegality of martial law in the time of peace. And the law estab- 
 lishes that if a lieutenant or other officer that hath a commission of martial 
 authority, doth in time of peace hang, or otherwise execute any man, by 
 colour of martial law, it is murder^ for it is against magna charta. 
 And the petition of right enacts, that no soldiers shall be quartered on the 
 subject without his own consent; and that no commission shall issue to 
 proceed within this land according to martial law. And although after 
 the Restoration king Charles II. maintained five thousand regular troops 
 for guards and garrisons, which the disturbed state of Scotland required; 
 and king James II. by degrees increased this army to thirty thousand, 
 and all paid out of his own civil list; yet it was made one of the articles 
 of the bill of rights, that the raising or keeping a standing army within 
 
MILITARY AND MARITIME STATES. 587 
 
 the kingdom in time of peace, unless with consent of parliament, is against 
 law. 
 
 It has also for many yeara past been annually judged necessary for the 
 safety of the kingdom, the defence of the possessions of the crown, and 
 the preservation of the balance of power in Europe, to maintdn a standing 
 body of troops even in time of peace, under the command and at the entire 
 disposal of the crown; but who are ipso facto disbanded at the expiration 
 of every year, unless continued by parliament. This plan of keeping a 
 standing army in time of peace was first introduced by Charles VII. of 
 France about the year 1445, and has since become absolutely necessary, 
 from the military attitude of other powers. " To prevent," says Montes- 
 quieu, " the executive power from being able to oppress, it is requisite 
 that armies with which it is intrusted should consist of the people, and have 
 the same spirit with the people, as was the case at Rome, till Marius new- 
 modelled the legions, by enlisting the Italian rabble, and laid the foundation 
 of all the military tyranny that ensued." According to these principles, then, 
 nothing ought to be more guarded against in a free state, than making 
 the military power, when such a one is necessary to be kept afoot, a body 
 too distinct from the people. It should therefore, like our own, be a 
 body entirely composed of natural born subjects; and to be enlisted for a 
 limited time. 
 
 To keep this body of troops in order, an annual act of parliament 
 likewise passes, " to punish mutiny and desertion, and for the better 
 payment of the army and their quarters." This regulates the manner in 
 which they are to be dispersed among the several innkeepers and victuallers 
 throughout the kingdom, and establishes a law martial for their govern- 
 ment. By this, among other things, it is enacted, that if any officer or 
 soldier shall excite, or join any mutiny, or knowing of it, shall not give 
 notice to the commanding officer; or shall desert, or list into any other 
 regiment, or sleep upon his post, or leave it before he is relieved, op hold 
 correspondence with a rebel or enemy, or strike or use violence to his 
 superior officer, or shall disobey his lawful commands; such offender shall 
 suffer such punishment as a court martial shall inflict, though it extend to 
 death itself. Although the strictest discipline and most exact regulations 
 be not only expedient, but absolutely necessary, during the time of actual 
 war, yet in times of profound peace the severity of military discipline 
 may, in some measure, be relaxed without much public inconvenience. 
 Upon this principle desertion in time of war is made felony without benefit 
 of clergy, and the offence is tryable by a jury, and before the judges of 
 the common law; yet by the militia laws a much lighter punishment is 
 inflicted for desertion during peace. If in a court martial the charge 
 of desertion is proved, the court must pass the sentence of death; they 
 
588 MILITARY AND MARITIME STATES. 
 
 liave no alternative. But to avoid this, and to give the deserter the 
 lighter punishment, the offence is called " being absent without leave," 
 which is a milder way of expressing this most shameful crime, and which, 
 if proved, subjects the deserter to an arbitrary punishment at the discretion 
 of the court. By the ancient Roman law, desertion in time of war was 
 punished with death, but more mildly in tranquil times. But our mutiny 
 act makes no such distinction; for any of the faults above mentioned are 
 equally at all times punishable with death itself, if a court martial shall 
 think proper. This discretionary power of a court martial is guided by 
 the directions of the crown, which, with regard to military offences, has 
 almost an absolute legislative power. " His majesty (says the act) may 
 form articles of war and constitute courts-martial, with power to try any 
 crime by such articles, and inflict such penalties as the articles direct." 
 
 One of the greatest advantages of our law is, that not only the crimes 
 themselves which it punishes, but also the penalties which it inflicts, are 
 ascertained and notorious. Nothing is left to arbitrary discretion. By his 
 judges the king dispenses what he himself, with the advice of parliament, 
 has previously ordained. How much, therefore, is it to be regretted, that 
 a body of men, whose courage and bravery have so frequently preserved 
 the liberties of their country, should be reduced by their military discipline 
 to a state of servitude in the midst of a nation of freemen; for Sir Edward 
 Coke says, that it is one of the genuine marks of servitude, to have the 
 law, which is our rule of action, either concealed or precarious. Neither 
 is this state of servitude altogether consistent witli the maxims of the 
 sound policy observed by other free nations. For the greater the general 
 liberty is, that any state enjoys, the more cautious has it usually been in 
 introducing slavery in any particular order or profession. These men, as 
 Montesquieu observes, seeing the liberty which others possess, and from 
 which they themselves are excluded, are apt to live in a state of perpetual 
 envy and hatred towards the rest of the community, and to indulge a 
 malignant pleasure in contributing to destroy tliose privileges which they 
 cannot themselves enjoy. 
 
 This annual act places soldiers in a worse condition than that of any other 
 subjects; but the humanity of our legislature has, in some cases, put them 
 in a mucli better. By 43 Elizabeth, a weekly allowance is to be raised in 
 every county for the relief of sick, hurt, and maimed soldiers, and the royal 
 hospital at Chelsea is established for such as are worn out in the service. 
 By several statutes, which have been enacted, oflicers and soldiers are at 
 liberty to use any trade or occupation they are fit for, in any town in the 
 kingdom, (except the two universities,) notwithstanding any statutes, 
 custom, or charter to the contrary. And soldiers in actual military service 
 may make nuncupative wills, and dispose of their goods, wages, and other 
 
MILITARY AND MARITIME STATES. 589 
 
 personal cliattels, without tliose forms, solemnities, and expenses, which the 
 law requires in other cases. Our law does not indeed extend this privi- 
 lege so far as the civil law, which carried it to an extreme bordering upon 
 the ridiculous; for if a soldier in the article of death, wrote anything in 
 bloody letters on his shield, or scratched with his sword, in the dust or 
 sand, it was held valid as a good military testament. 
 
 The maritime state is nearly allied to the former, though much more 
 agreeable to the principles of our free constitution. The royal navy of 
 England has ever been its best defence and ornament ; its ancient and 
 natural strength; the floating bulwark of the island; an army, from which, 
 however strong and powerful, no danger to liberty can be apprehended, 
 and accordingly it has ever been assiduously cultivated, even from the 
 earliest ages. " According to the Welsh Triads," says Southey, " the 
 earliest name by which Britain was known was Clas Merddiu^ the sea- 
 defended spot: such an appellation may seem to have been prophetic. 
 But the sea defends no people who cannot defend themselves : and it was 
 with this feeling, that Wordsworth, the great poet of his age, poured 
 forth a lofty strain, when looking from a valley near Dover, towards the 
 coast of France, and the span of waters which separated us from our then 
 most formidable neighbour. Napoleon Buonaparte : he said, 
 
 ' Even so does God protect us, if we be 
 Virtuous and wise ! Winds blow, and waters roll, 
 Strength to the brave, and power, and Deity ; 
 Yet in themselves are nothing ! One decree 
 Spake laws to them, and said, that by the soul 
 Only, the nations shall be great and free.' 
 
 With all the ports of the continent in his possession, and all its navies at 
 his command, that narrow channel, that ' span of waters,' was found 
 impassable by the most ambitious, the most powerful, the most enterpris- 
 ing, and the most inveterate enemy with whom this nation was ever 
 engaged in war." Great Britain had manfully won and victoriously 
 maintained the dominion of the sea, and to so much perfection was our 
 naval reputation arrived in the twelfth century, that the code of maritime 
 laws, called the laws of Oleron, as compiled by Richard I. at that island 
 on his way to Palestine, have been received by all the nations of Europe 
 as the ground of all their marine constitutions. 
 
 Many laws have been made for the supply of the royal navy with seamen, 
 for their regulation when on board, and to confer privileges and rewards 
 on them during and after their service;* some of which are as follow : — 
 
 1. Officers are to cause public worship, according to the liturgy of the church of England, 
 to be solemnly performed in their ships, and to take care that prayers and preaching, by the 
 chaplains, be performed diligently, and that the Lord's day be observed. '^. Poi-sons guilty 
 
 * 13 Car. II., c. 9. 22 Geo. II., c. 2?2. 19 Geo. III., c. 17. 
 
590 MILITARY AND JMAlilTIME STATES. 
 
 of profane oaths, cursing, drunkenness, uncleanness, &c., to be punislied as a court mai tial 
 thinks fit. 3. If any person shall give or hold intelligence to or with the enemy without leave, 
 he shall suffer death. 4. If any letter or message from an enemy be conveyed to any in the 
 fleet, and he shall not in twelve hours acquaint his superior officer with it, or if the superior 
 officer, being acquainted therewith, shall not reveal it to the commander-in-chief, the oftender 
 shall suffer death, or such punishment as a court martial shall impose. 6. Spies and persons 
 endeavouring to corrupt any one in the fleet, shall sufler death, or such punishment as a 
 court-martial shall impose. 6. No person shall relieve an enemy with money, victuals, or 
 ammunition, on like penalty. 7. All papers taken on Iward a prize shall be sent to the 
 court of admiralty, &c., on penalty of forfeiting the share of the prize, and such punishment 
 as a court martial shall impose. 8. No person shall take out of any prize any money or goods, 
 unless for better securing the same, or for the necessary use of any of his majesty's ships, 
 before the prize shall be condemned, upon penalty of forfeiting his share, and such punish- 
 ment as shall be imposed by a court martial. 9. No person on board a prize shall be stripped 
 of his clothes, pillaged, beaten, or ill-trejited, on pain of such punishment as a court martial 
 shall impose. 10. Every commander, who, upon signal or order for fight, or sight of any 
 ship which it may be his duty to engage, or who, upon likelihood of engJigement, shall not 
 make necessary preparation.^ for fight, and ciicourage the inferior officers and men to fight, 
 shall sufler death, or such punishment as a court martial shall deem him to deserve. And 
 if any person shall treacherously or cowardly yield or cry for quarter, he shall suffer death. 
 II. Every person who shall not obey the ordere of his superior officer in time of action, to 
 the best of his power, sliall sutler death, or such punishment as a court martial shall deem 
 him to deserve. 12. Every person who, in time of action, shall withdraw or keep back, or 
 not come into the fight, or do his utmost to take or destroy any ship which it shall be his 
 duty to engage, and to assist every ship of his majesty or his allies, which it shall be his 
 duty to assist, shall suffer death. 13. Every person who through cowardice, &c., shall for- 
 be«'ir to pursue the chase of an enemy, or shall not assist or relieve a known friend in view 
 to the utmost of his power, shall suffer death. 14. If any person shall delay or disc-ourage 
 any action or service commanded, upon pretence of arrears of wages, or otherwise, he shall 
 suffer death, or such punishment as a court martial shall deem him to deserve, 15. Every 
 person who shall desert to the enemy, or run away with any ship, ordnance, &c. , to the 
 weakening of the service, or yield up the same cowardly or treacherously to the enemy, shall 
 suffer death. \Q. Every person who shall desert, or entice others to do so, shall suffer death, 
 or such punishment as a court martial shall think fit. If any commanding officer siudl 
 receive a deserter, after discovering him to be such, and shall not with speed give notice to 
 the captain of the ship to which he belongs ; or if the ship is at a considerable distance, to 
 the secretary of the admiralty or commander-in-chief, he shall be cashiered. 17. Officers 
 or seamen of ships appointed for convoy of merchant ships, or of any other, shall diligently 
 attend upon that charge according to their instructions ; and whosoever shall not faithfully 
 perform their duty, and defend the ships in their convoy, or refuse to fight in their defence, 
 or run away cowardly, and submit the ships in their convoy to hazard, or exact any reward 
 for convoying any ship, or misuse the master or mariners, shall make reparation of damages 
 as the court of admiralty shall adjudge, and be punished criminally by death, or other punish, 
 ment, as shall be adjudged by a court martial. 18. If any officer shall receive or permit to 
 be received on board, any goods or merchandise, other than for the sole use of the ship, 
 except gold, silver, or jewels, and except goods belonging to any ship which may be ship- 
 wrecked, or in danger thereof, in order to the preserving them for the owners, and except 
 goods ordered to be received by the lord high admiral, 8jc., he shall be cashiered and rendered 
 incapable of farther service. 19. Any person making, or endeavouring to make any mutinous 
 assembly, shall suffer death. Any person uttering words of sedition or mutiny, shall suffer 
 death, or such punishment as a court martial shall deem him to deserve. If any officer, 
 mariner, or soldier, in or belonging to the fleet, shfill behave himself with contempt to his 
 superior officer, being in the execution of his ojjlce, he shall be punished according to (he 
 nature of his offence by the judgment of a court martial. 20. Any person concealing any 
 traitorous or mutinous practice or design, shall sufler deuth^ or such punishment as a court 
 
JMILITARY AND MAUITIME STATES. 591 
 
 martial shall think fit. Any person concealing any traitorous or mutinous words, or any 
 woids, practice, or design, tending to the hinderance of the service, and not forthwith 
 revealing the same to the commanding officer, or being present at any mutiny or sedition, 
 shall not use his utmost endeavours to suppress the same, shall be punished as a court martial 
 thinks he deserves. 21 . Any person finding cause of complaint of the unwholesomeness of 
 victuals, or upon other just ground, shall quietly make the same known to his superior, who as 
 far as he is able, shall cause the same to be presently remedied j and no person upon any such 
 or other pretence shall attempt to stir up any disturbance, upon pain of such punishment as a 
 court martial shall think fit to inflict. 22. Any person striking any his superior officer, or 
 drawing or ottering to draw or lift up any weapon against him, being in the execution of his 
 office, shall suflfer death. And any person presuming to quarrel with any his superior officer, 
 being in the execution of his office, ov disobejing any lawful command of any his superior 
 officer, shall sutler death, or such other punishment as shall be inflicted upon him by a court 
 martial. 23. Any person quarrelling or fighting with any other person in the fleet, or using 
 reproachful or provoking speeches oi- gestures, shall sutTer such punishment as a court martial 
 shall impose. 24. There shall be no wasteful expense, or embezzlement of any powder, shot, 
 &c., upon penalty of such punishment as by a court martial shall be found just. 25. Every 
 pereon buming or setting fire to any magazine or store of powder, ship, &c., or furniture 
 thereunto beienging, not then appertaining to an enemy, shall sufler death. 26. Care is to 
 be taken, that through wilfulness or negligence no ship be stranded, run upon rocks or sands, 
 or split or hazarded, upon pain of death, or such punishment as a court martial shall deem 
 the ofleiice to deserve. 27. No person shall sleep upon his watch, or negligently perform 
 his duty, or forsake his station, njion pain of death, or such punishment, &c. 28. Murder; 
 29. Buogery or sodomy; 30. And robbery, shall be punished with death, or otherwise, &c. 
 31. Every person knowingly making or signing, or commanding, counselling, or procuring 
 the making or signing any false muster, shall be cashiered, and rendered incapable of farther 
 employment. 32. Provost marshal refusing to apprehend or receive any criminal, or suffer- 
 ing him to escape, shall suffer such punishment as a court martial shall deem him to deserve. 
 And all others shall do their endeavours to detect and apprehend all offenders, upon pain of 
 being punished by a court martial. 33. If any flag officer, captain, commander, or lieu- 
 tenant, shall behave in a scandalous, infamous, cruel, oppressive, or fraudulent manner, 
 unbecoming his character, he shall be dismissed. 34. Every person in actual service and 
 full pay, guilty of mutiny, desertion, or disobedience, in any part of his majesty's service on 
 shore when on actual service, relative to the fleet, shall be liable to be tried by a court martial, 
 and suffer the like punishment as if the offence had been committed at sea. 35. Every 
 person in active service and full pay, committing upon shore, in any place out of his majest} 's 
 domitu'ons, any crime punishable by these articles, shall be liable to be tried and punished, 
 as if ihe crime had been committed at sea. 36. All other crimes not capital, not mentioned 
 in this act, shall be punished according to the laws and customs used at sea. No person to 
 be imprisoned longer than two years. Court martial not to try any offence (except the 5th, 
 S4th, and 35th articles) not committed upon the main sea, or in any great rivers beneath the 
 bridges, or in any haven, &c., within the jurisdiction of the admiralty, or by persons in 
 actual service and full pay, except such persons and offences, as in the 5th article, nor to try a 
 land officer or soldier on board a transport ship. The lord high admiral, &c. may grant com- 
 missions to any officer commanding in chief in any fleet, &c, to call courts martial, consisting 
 of commanders and captains. And if the commander-in-chief shall die or be removed, the 
 officer next in command may call courts martial. No commander-in-chief of a fleet, &c., 
 of more than five ships, shall preside at any court martial in foreign parts, but the officer 
 next in command shall preside. If a commander-in-chief shall detach any part of his fleet, 
 &C., he may empower the chief commander of the detachment to hold courts martial during 
 the separate service. If five or more ships shall meet in foreign parts, the senior officer may 
 hold courts martial and preside thereat. When it is improper for the officer next to the 
 commander-in-chief to hold or preside at a court martial, the third officer in command may 
 be empowered to preside, &c. No court martial shall consist of more than thirteen, or less 
 than Jive persons. When there shall not be less than three, and yet not so many as five, of 
 
592 MILITARY AND MARITIME STATES. 
 
 the degree of a post captain or superior rank, the officer who is to preside may call to his 
 assistance as many commanders under the degree of a post capiain, as, together witli the 
 post captains shall make up the number five, to hold the court martial After trial begun, 
 no member of a court martial shall go on shore, until sentence, except in case of sickness, 
 upon pain of being cashiered. Proceedings skill not be delayed, if a sufficient number 
 rrfmain to compose the court, wliich shall sit from day to day (except Sunda}s) till sentence 
 be given. The judge, advocate, and all officers constituting a court martial, shall be upon 
 oath. Persons refusing to give evidence shall be imprisoned. Sentence of death within the 
 narrow seas (except in case of mutiny) shall not be put in execution till a report be made to 
 the lord high admiral, &c. Sentence of death bejond the narrow seas shall not be put in 
 execution but by order of the commander-in-chief of the fleet, &c. Sentence of deatli in 
 an}' squadron detached from the fleet, shall not be put in execution (except in case of mutiny) 
 but by order of the commander of the fleet, or lord high admiral, &c. And sentence of 
 death passed in a court martial held by the senior officers of five or more ships met in foreign 
 parts (except in case of mutiny) shall not be put in execution but by order of the lord higli 
 admiral, &c. 
 
 The royal navy of Great Britain is now in a very flourishing condition, 
 having been diligently maintained in preceding reigns as the natural 
 strength of the kingdom. Anciently there were tliree or four admirals 
 appointed for the British seas, all of whom held their office during the 
 king's pleasure, and each of them having particular limits under his 
 government ; £is the admirals of the fleet commanded all the ships from 
 the mouth of the Thames northward, southward, and westward. Besides 
 these, there were admirals of the Cinque Ports : sometimes one admiral 
 lias commanded to the north, south, and west, at once; but the title of 
 admiral of England was not customary till the reign of Henry IV., when 
 tlie king's brother had that title bestowed on him. In former times, before 
 the word admiral was introduced, the supreme naval officer was called 
 custos maris, or the king's lieutenant-general of Ihe sea. 
 
 Of the rank of admiral there are three degrees : viz. admiral, vice- 
 admiral, and rear- admiral. Each of these degrees, consists of three divi- 
 sions, each having a different coloured flag; hence all admirals assume 
 the common title of flag officer, and take rank and command in the fol- 
 lowing order : admirals of the red, of the white, and of the blue squadrons, 
 and each bears their respective flags at the main top gallant mast head ; 
 vice-admirals of each of the flags, bearing their respective flags at the 
 fore top gallant mast head; and the rear-admirals, bearing their respective 
 flags at the mizen top gallant mast head. 
 
 The admiral of the fleet is a mere honorary distinction, which gives no 
 command. It is sometimes conferred, but not always, on the senior 
 admiral on the list of naval officers. If he should happen to serve afloat, 
 he is entitled to bear the union flag at the main top gallant mast head, 
 which the present king, who was at that time duke of Clarence and admi- 
 ral of the fleet, did, when he escorted Louis XVItl. across the channel 
 in 1814, to take possession of the throne of France. 
 
MILITARY AND MARITIME STATES. 593 
 
 The lord high admiral of England is an ancient officer of high rank in 
 tlie state, in whom not only the government of the navy is vested, but 
 who, long before any regular navy existed in England, presided over a 
 sovereign court, with authority to hear and determine all causes relating 
 to the sea, and to take cognizance of all offences committed thereon. 
 The origin of this dignitary is uncertain : it is generally supposed that 
 the title and office were first instituted by Edward I., about the year 1286, 
 but it would seem that it was merely honorary. From the 34th year of 
 Eidward TL, however, there is a regular succession of admirals held by 
 many illustrious names in English chivalry. In 1632, the office of high 
 admiral was for the first time put in commission, all the great officers of 
 state being the commissioners. During the usurpation of Cromwell, a 
 committee of parliament acted as commissioners. At the Restoration, in 
 1660, his royal highness James duke of York, was appointed lord high 
 admiral of England. In 1684, however, Charles II. deprived the duke 
 of York of this command, and managed the affairs of the admiralty by 
 his great officers of state until his death. King James II. upon his 
 accession declared himself lord high admiral and lord general ; and he 
 conducted the affairs of the admiralty during his whole reign with the 
 assistance of Mr Secretary Pepys. At the Revolution, William and 
 Mary put the admiralty again in commission. In 1707, queen Anne 
 appointed her own husband, prince George of Denmark, high admiral of 
 Great Britain, in consequence of the union of the two crowns, with a 
 council to assist him; and at his death the queen took the office into her 
 own hands, Mr Burchett doing the duties as her deputy. Since that 
 time, the office of lord admiral has been executed by lords commissioners 
 of the admiralty, till May, 1827, when George IV. appointed his then 
 royal highness the duke of Clarence lord high admiral, with a council of 
 four officers to assist him. In which office he acted to the great satisfac- 
 tion of the navy at large, until he solicited his late majesty to be permit- 
 ted to resign his high office in 1828, when it was again put in commission. 
 
 The droits of admiralty consist of flotsome, jetsorae, lagon, treasure, 
 deodands, derelicts, found within the jurisdiction of the high admiral; all 
 goods picked up at sea; all fines, forfeitures, ransoms, recognizances, and 
 pecuniary punishments; all sturgeons, whales, porpusses, dolphins, rigs, 
 and grampusses, and all such large fishes; all ships and goods of the 
 enemy coming into creek, road, or port, by stress of weather, mistake, or 
 ignorance of the war; all ships seized at sea, salvage, &c.; together with 
 his shares of prizes, which shares were afterwards called tenths. All 
 prizes are now wholly given up by the crown to the captors, and such 
 share of the droits as from circumstances may be thought proper. The 
 lord high admiral also claimed, and enjoyed as his due, the cast sliips; 
 
 4 P 
 
594 MILITARY AND MARITIME STATES. 
 
 and the subordinate ofEcers of the navy, as their perquisites, all other 
 decayed and unserviceable stores. 
 
 Though by the act of William and Mary, the lords commissioners are 
 vested with all and singular authorities, jurisdictions and powers, which 
 have been and are vested, settled, and placed, in the lord high admiral of 
 England for the time being, to all intents and purposes, as if the said 
 commissioners were lord high admiral of England; yet there is this re- 
 markable difference in the two patents by which they are constituted, 
 that the patent of the lord high admiral mentions very little of the military 
 part of his office, but chiefly details his judicial duties as a magistrate, 
 ivhilst on the contrary the patent to the lords commissioners of the 
 admiralty is very particular in directing them to govern the affairs of the 
 navy, and is wholly silent as to their judicial powers. 
 
 These powers, as expressed in the patent to the earl of Pembroke in 
 1701, are, the power to act by deputy; to take cognizance of all causes, 
 civil and maritime, within his jurisdiction; to arrest goods and persons; 
 to preserve public streams, ports, rivers, fresh waters and creeks whatso- 
 ever within his jurisdiction, as well for the preservation of the ships as of 
 the fishes; to reform too straight nets, and unlawful engines, and punish 
 offenders; to arrest sliips, mariners, pilots, masters, gunners, bombardiers, 
 and any other persons whatsoever, able and fit for the service of the 
 ships, as often as occasion shall require, and wheresoever they shall be 
 met with; to appoint vice-admirals, judges, and other of^cers, durante 
 bene placito; to remove, suspend, or expel them, and put others in their 
 places, as he shall see occasion ; to take cognizance of civil and maritime 
 laws, and of death, murder, and maim. 
 
 The office of his majesty's ordnance is kept within the Tower of 
 London. This office has always been one of the greatest importance, as 
 being the only standing and grand national magazine for all the munitions 
 of war, both for the military and naval service, and which superintends, 
 orders, and disposes, the principal magazine in the Tower, as well as at 
 Woolwich, Chatham, Portsmouth, Plymouth, Edinburgh Castle, and every- 
 where else. Immense quantities of gunpowder, full accoutrements for 
 horse and foot, with ordnance, shot, and other stores in proportion, as 
 well for the naval as the military service, are kept in this royal depot, depo- 
 sited separately in their several storehouses with great order and care, for 
 their preservation and more speedy despatch in their delivery. It is under 
 the government in chief of the master-general of the ordnance, who is 
 generally a person of great eminence and integrity. The other officers 
 are a lieutenant general, a surveyor, clerk of the ordnance, keeper of the 
 stores, clerk of the deliveries, and the treasurer and paymaster, who all 
 hold their places by patent under the great seal. 
 
MILITARY AND MARITIME STATES. 595 
 
 The duties of the lieutenant-general are to receive all significations, 
 orders, &c., from the master at the board; to see them duly executed; 
 to make orders, as the king's service shall require, for things of such 
 importance as do not require the king's warrant, or the warrants of the 
 lords of the admiralty. Formerly the master-general's oflSce was more of 
 a sinecure, but of late years he is obliged to be constant in his attendance 
 with the other principal officers, if any business requires their presence. 
 The lieutenant-general of the ordnance gives orders for the firing of 
 salutes upon birthdays and other festivals, and also superintends the 
 artillery and all its equipages. 
 
 The surveyor's charge is to survey all his majesty's ordnance, stores 
 and munitions of war in the storekeeper's custody, which he is to arrange 
 in such a manner as shall be for their preservation and safety, ready view, 
 and easy accompt; to allow all bills of debts, and to keep check upon the 
 work of artificers and labourers; to inspect the quality and state of all 
 provisions, that they be good and serviceable, and duly proved with the 
 assistance of the other officers and the proof-masters, and if necessary 
 that they be branded with the king's mark- 
 
 The clerk of the ordnance is to record all orders and instructions for 
 the government of the office, likewise all patents and grants, and the 
 names of all the officers, clerks, artificers, attendants, gunners, labourers, 
 and others who enjoy the said grants, or any other fees from the king 
 for the same; to draw all estimates for provisions, supplies, &c.; and all 
 letters, instructions, commissions, deputations, and contracts for his 
 majesty's service; to make all bills of impost, and debentures for the 
 payment of the respective artificers and creditors of the office for work 
 done or provisions received; and quarter books for the salaries, allow- 
 ances, and wages of all officers, clerks, and other servants belonging to 
 the office; and also to keep journals and ledgers of the receipts and 
 returns of all his majesty's stores; that nothing be bought, borrowed, 
 given, received, lent, or employed, without a regular record thereof, to 
 serve as a check between the two accountants of the office, the one for 
 money, the other for stores. 
 
 Under the charge and custody of the storekeeper are placed all the 
 king's ordnance, munitions, and stores belonging to the office. It is his 
 duty to give legal security for their safe- keeping; to make just and true 
 returns from time to time; to reject all provisions whatsoever that are 
 manifestly unserviceable, or before they have been inspected by the sur- 
 veyor; not to issue any proportion of ordnance, munition, and stores, 
 except the same be agreed upon, and signed by the proper officers, 
 according to the master-general of the ordnance's signification and appoint- 
 ment, warranted by his majesty's sign manual, or six members of the privy 
 
596 ALIENS, DENIZENS, AND NATIVES. 
 
 council, or the lords of the admiralty, if the stores be for the use of the 
 royal navy; not to receive back any stores formerly issued, until they have 
 been reviewed by the surveyor, and registered by the clerks of the ord- 
 nance; to ascertain that all his majesty's storehouses be in good and 
 sujficient repair and accommodation; and the stores kept in such order 
 and lustre as is fit for his majesty's honour and service.* 
 
 ALIENS, DENIZENS, AND NATIVES. 
 
 Under the name of the people, is included every individual from the 
 Iiighest to the lowest subject in the realm : princes, nobility, clergy, 
 magistrates, gentry, and commonalty, all united, compose what is called 
 the people. " The first and most obvious division," says Sir William 
 Blackstone, " of the people, therefore, is into aliens and natural born 
 subjects." The latter are such as are born within the dominions of the 
 British crown; that is, within the allegiance of the king; and the former, 
 or aliens, are such as have been born in the dominions of other sovereigns, 
 and whose allegiance are therefore due to them. Every subject owes 
 allegiance to the king; it is the tie or ligamen^ which binds the subject to 
 the sovereign, and is the return for that protection which the king affords 
 to him. The substantial part, or thing itself, is founded in reason, the 
 divine law, and the nature of government; but its name and form have 
 descended to us from our feudal ancestors. Under the feudal system every 
 owner of lands held them in subjection to the crown originally, or to some 
 inferior lord, who had obtained of the crown, from whom or his ancestors 
 the tenant or vassal had received them. This produced a natural trust or 
 confidence between the lord and the vassal, that the former should protect 
 the latter in the enjoyment of the land or teiTitory which he had granted 
 l»im, and the vassal on the other hand reciprocally engaged to be faithful 
 to his lord or superior, and to defend him against all his enemies. The 
 vassal's obligation was called his ^c^^Zi^o^, or fealty; and the feudal law 
 required all tenants to take an oath of fealty or fidelity to their landlords, 
 which ran in nearly the same language as our ancient oatli of fealty to the 
 crown, professing, " that he did become his man from that day forth, of 
 life and limb and earthly honour:" except that in the usual oath of fealty 
 a saving or exception of the faith due to a superior lord by name, under 
 whom the landlord himself was perhaps only a tenant or vassal But 
 when the acknowledgment was made to the absolute superior himself, who 
 was vassal to no man, that is the king, it was no longer called the oath of 
 
 * Blackstone's Commentaries— Custance on the Constitution — Chamberlayne's Anglia 
 Notitia—htsiUxtes at Large. 
 
ALIENS, DENIZENS, AND NATIVES. 597 
 
 fealty, but of allegiance; and therein the tenant swore to bear faith to his 
 sovereign lord, in opposition to all men, contra omnes homines jidelitatem 
 fecit; without any saving clause or mental reservation whatever. We have 
 formerly mentioned, that it is " the grand and fundamental maxim of the 
 feudal tenure, that all lands were originally granted out by the sovereign, 
 and are therefore holden, either mediately or immediately of the crown." 
 Land held by this exalted species of tenure was called a liege fee ; the 
 vassals were designated liege men; and the sovereign the liege lord. 
 When sovereign princes did homage to each other for lands held under 
 their respective sovereignties, as the kings of Scotland frequently did for 
 lands held by them as proprietors in England, they were always careful to 
 make a distinction between simple and liege homage. Simple homage 
 was merely an acknowledgment of tenure ; and liege homage, which 
 included the submission and fealty before mentioned, and the services to 
 which that oath bound the recipient. In the year 1329, when Edward III. 
 of England did homage to Philip VI. of France, for his ducal dominions 
 in that kingdom, the nature of the homage was warmly disputed. Philip 
 naturally enough demanded liege, and the king of England proffered 
 simple, homage. But as it became a settled principle in England, that 
 all the lands in the kingdom are holden of the king as their sovereign and 
 lord paramount, the oath of fealty, therefore, could alone be taken to 
 inferior lords, and the oath of allegiance was confined to the person of the 
 king alone. By an easy analogy the term of allegiance was gradually 
 brought to signify all other engagements which subjects owe to their 
 prince, as well as mere territorial duties ; and the oath of allegiance 
 contained for upwards of six hundred years, a promise " to be true and 
 faithful to the king and his heirs, and truth and faith to bear of life and 
 limb and terrene honour, and not to know or hear of any ill or damage 
 intended him without defending therefrom." These were the exact words 
 also of the oath of allegiance in Scotland, and the clause in italics was the 
 cause of the adherence of the official men and the bishops to the house of 
 Stuart at the Revolution in 1688. Sir Matthew Hale remarks, that this 
 oath was short and plain, not entangled with long and intricate clauses or 
 declarations, and clearly comprehends the whole duty of a subject to his 
 sovereign. At the Revolution the oath of allegiance was altered, the 
 subject simply swearing, " that he will be faithful, and bear true allegiance 
 to the king;" this form was introduced by the convention parliament, and 
 is more general and indeterminate than the former, as it neither binds to 
 continue their fidelity to the heir, nor in any manner specifies in what 
 that allegiance consists. The oath of supremacy is principally intended as 
 a renunciation of the pope's pretended authority, as no crown can be 
 supreme which has a superior, and it is well known that the pope pretended 
 
598 ALIENS, DENIZENS, AND NATIVES. 
 
 to be lord of lords, and king of kings. The oath of abjuration was 
 introduced in the last year of the reign of William III., and was intended 
 to supply the loose and general texture of the oath of allegiance : it runs, 
 "I, A. B., do truly and sincerely acknowledge, profess, testify, and 
 declare, in my conscience before God and the world, that our sovereign 
 lord, king William, is lawful and rightful king of this realm, and all 
 other his majesty's dominions and countries thereunto belonging. And I 
 do solemnly and sincerely declare, that I do believe in my conscience, 
 that the person pretended to be the prince of Wales, during the life of the 
 late king James, and since his decease pretending to be and taking upon 
 himself the style and title of king of England, by the name of James III., 
 hath not any right or title whatsoever to the crown of this realm, or any 
 other the dominions thereunto belonging : and I do renounce, refuse, and 
 abjure any allegiance or obedience to him. And I do swear, that I will 
 bear faith and true allegiance to his majesty king William, and him will 
 defend to the utmost of my power, against all traitorous conspiracies and 
 attempts whatsoever which shall be made against his person, crown, or 
 dignity. And I will do my best endeavour to disclose and make known 
 to his majesty and his successors all treasons and traitorous conspiracies, 
 which I shall know to be against him or any of them. And I do faithfully 
 promise, to the utmost of my power, to support and maintain, and defend 
 the limitation and succession of the crown, against him the said James 
 and all other persons whatsoever, as the same is and stands limited to his 
 majesty during his majesty's life, and after his majesty's decease to the 
 princess Anne of Denmark, and the heirs of her body, being protestants; 
 and for default of such issue, to the heirs of the body of his majesty, 
 being protestants : and as the same by another act is, and stands limited 
 after the decease of his majesty and the princess Anne of Denmark, and 
 for default of issue of said princess and of his majesty respectively, to the 
 princess Sophia, electress and duchess dowager of Hanover, and the heirs 
 of her body, being protestants. And all these things I do sincerely and 
 plainly acknowledge and swear, according to these express words by me 
 spoken, and according to the plain and common sense and understanding 
 of the same words, without any equivocation, mental evasion, or secret 
 reservation whatsoever. And I do make tliis recognition, acknowledgment, 
 abjuration, renunciation, and promise, heartily, willingly, and truly, upon 
 the true faith of a Christian."* This oath might now with great propriety 
 be laid aside, since that illustrious line of princes, against which it was 
 intended to operate, are long since become extinct. It must be taken by 
 all persons in any office, trust, or employment, and may be tendered by 
 
 * Statute 13 Will. III., c. 6. 
 
ALIENS, DENIZENS, AND NATIVES. 599 
 
 two justices of the peace to any person whom they may suspect of dis- 
 afTection to government. The oath of allegiance may be tendered to any 
 one above the age of twelve years, whether natives, denizens, or aliens. 
 
 But besides these express engagements, there is also an implied, original, 
 and virtual allegiance, which every subject owes to his sovereign, ante- 
 cedently and independently of all express promise or oath, even although 
 the subject should never swear allegiance in form. For, as the king, by 
 descent of the crown, is fully invested with all the rights, and is himself 
 bound to perform all the duties of the sovereignty, before his coronation, 
 and even although he never were crowned; so is the subject bound to his 
 prince, by an intrinsic allegiance before the superinduction of those exter- 
 nal bonds of oaths, homage, and fealty, which were merely instituted to 
 remind the subject of this his previous and bounden duty, and for the 
 better securing its performance. The^formal profession, or oath of sub- 
 jection, therefore, is nothing more than a verbal declaration of what was 
 previously implied in law. On this subject Sir Edward Coke has the 
 following just and emphatic remark : " that all subjects are equally 
 bounden to their allegiance, as if they had taken the oath; because it is 
 written by the finger of the law in their hearts, and the taking of the 
 corporal oath is but an outward declaration of the same."* The sanction 
 of an oath, it is true, in case of the violation of the duty, accumulates 
 greater guilt, by superadding treason; but it does not increase the civil 
 obligation to loyalty, it only strengthens the social tie by uniting it with 
 religion. 
 
 Allegiance, whether expressed or implied, is, however, distinguished by 
 the law into two sorts or species, the one natural, the other local; the 
 former being also perpetual, whereas the latter is only temporary. That 
 which is natural is due irrespectively from all men born within the king's 
 dominions immediately on their birth, because the moment they are born 
 they are under the king's protection, and that too at a period when from 
 their tender age they cannot protect themselves. Natural allegiance, 
 therefore, becomes on the part of the subject a debt of gratitude, which 
 can neither be forfeited, cancelled, nor altered by any change of time, 
 place, or circumstances whatever, unless by the united concurrence of the 
 legislature, A British subject removing to France, America, or China, 
 still owes the same allegiance to the king of Great Britain, as if he were 
 never to leave the kingdom, and that too were he to be absent for any 
 number of years. It is a principle of universal law, that the natural 
 born subject of one prince, cannot put off or discharge his natural alle- 
 giance to his sovereign by any act of his own, no, not even by swearing 
 
 * 2 Inst. 121. 
 
600 ALIENS, DENIZENS, AND NATIVES. 
 
 allegiance to another; for the natural allegiance was intrinsic and primi- 
 tive, and antecedent to the other, and canno>t be divested without the 
 concurrent act and consent of that prince to whom it was first due. It is 
 true, that the natural born subject of one prince, to whom he owes alle- 
 giance, may be entangled by subjecting himself absolutely by oaths to 
 another; but the subjection to these straits and difficulties, that is, of 
 serving two masters, being his own act, it is unreasonable that he should 
 be able at pleasure, by any such voluntary act of his own, to throw off 
 his allegiance, and unloose the bands which connect him with his natural 
 sovei'eign. The legal maxim, nemo potest exuere patriam^ compre- 
 hends the whole doctrine of natural allegiance. This is exemplified in 
 the case of a Mr Eneas Macdonald, who was a native of Great Britain, 
 but from his earliest infancy had received his education in France, had 
 enjoyed for many years a profitable employment in that kingdom, and had 
 even accepted a commission in the French king's army. Acting under 
 that commission, he was taken in arms serving against the king of Eng- 
 land, for which he was indicted and convicted of high treason; but received 
 a pardon on the condition that he should leave the kingdom, and reside 
 abroad during all the days of his natural life.* 
 
 Local allegiance is what is due by an alien, or a native of a foreign 
 country, being a stranger born, during the time, and no longer, that he 
 continues within the king's dominion and protection. This allegiance 
 naturally ceases the moment that the alien removes to another state or 
 kingdom. It has, however, been laid down by all the judges of England, 
 that " if an alien, seeking the protection of the crown, and having a 
 family and effects here, should, during a war with his native country, go 
 thither, and there adhere to the king's enemies for purposes of hostility^ 
 he may be dealt with as a traitor."-]- Our natural allegiance is, therefore, 
 perpetual, but the local allegiance of an alien, with tlie above exception, 
 is merely temporary; and that for this reason, evidently founded on the 
 nature of government, allegiance being a debt due from the subject, upon 
 an implied contract with the prince, that so long as the latter affords 
 protection, the former must yield an implicit obedience. As, therefore, tlie 
 prince is always under a constant tie to protect his natural born subjects 
 at all times, and in all countries, for this reason their allegiance due to 
 him, " not only for wrath, but also for conscience' sake," is equally 
 universal and permanent. But, on the other hand, as the prince affords 
 his protection to an alien only during his residence in this realm, an alien's 
 allegiance is consequently confined (in point of time at least) to the 
 duration of his residence; and (in point of locality) to the dominions of 
 
 * Sir M. Foster, 59. f Foster, 185. 
 
ALIENS, DENIZENS, AND NATIVES. 601 
 
 the British empire. From these considerations Sir Matthew Hale deduces 
 this consequence : " that though there should be an usurper of the crown, 
 yet while he is in full possession of the sovereignty, it is treason for any 
 subject to practise any thing against his crown and dignity; and, therefore, 
 although the true prince should regain his sovereignty, attempts formerly 
 made against the usurper (unless these have been made in defence or aid 
 of the rightful king) have always been punished with death, on account of 
 that temporary allegiance which was due to the usurper as king de facto. 
 And after king Edward IV., of the house of York, recovered the crown, 
 which had been usurped by three successive sovereigns of the house of 
 Lancaster, treasons committed against Henry VI., the last usurper of that 
 line, were capitally punished ; though Henry himself had been declared by 
 parliament an usurper." 
 
 This oath of allegiance, or rather the allegiance itself, is held not only 
 applicable to the political capacity of the king, or regal office, but also to 
 his natural person, or blood royal. For the misapplication of their 
 allegiance to the crown or regal capacity, exclusive of the person of the 
 king, the Spensers were banished in the reign of Edward II. Hence 
 arose that principle of personal attachment and affectionate loyalty, which 
 induced our forefathers on various occasions, but especially in the case of 
 the princes of the house of Stuart, to hazard all that was dear to them — 
 life, fortune, and family — in defence and support of their liege lord and 
 sovereign. I have no doubt but the same principle would actuate their 
 sons, were it God's will that their loyalty to the house of Brunswick should 
 be tried in the same fiery furnace. 
 
 This allegiance, therefore, both expressed and implied, is the peremp- 
 tory duty of all the king's subjects, divided however into the natural dis- 
 tinctions of local and temporary, or universal and perpetual. Their rights 
 are also distinguished by the same criterions of time and locality, natural 
 born subjects having a great variety of rights, which they acquire by their 
 birth, and can neither forfeit by distance, place, nor time, except by their 
 own misconduct in the breach of any known law. Aliens are in some 
 degree in the same position, though their rights are mucii more circum- 
 scribed, being acquired only by their residence within the king's dominions, 
 and of which they are deprived whenever they withdraw from his protection. 
 I will endeavour to point out some of the principal lines whereby they are 
 distinguished from native subjects, descending to farther particulars as 
 they come in course. 
 
 An alien born may purchase lands or other estates, but not for his own 
 use; for the king is thereupon entitled (o them. A woman alien can- 
 not be endowed, unless she marries by the king's license; in which case 
 she may be endowed : neither can a husband alien be a tenant by courtesy, 
 
 4 G 
 
602 ALIENS, DENIZENS, AND NATIVES. 
 
 that is, hold an estate in right of his wife. If an ah'en could acquire a 
 permanent property in lands, he must owe an allegiance, equally permanent 
 as that property, to the king of Great Britain, and which would of course 
 be inconsistent with the allegiance which he owes to his own natural liege 
 lord; and besides, in process of time, the nation might become subject to 
 foreign influence, and of course liable to many inconveniences. Among 
 other reasons which might be given for the constitution of this point, it 
 seems to have been intended by way of punishment for the alien's pre- 
 sumption in attempting to procure any landed property, that by the civil 
 law such contracts were made void. For the vender is not affected by it, 
 he having resigned his right, and received an equivalent in exchange. 
 Nevertheless, an alien may acquire a property in goods, money, and other 
 personal estate, or may hire a house for his habitation; because personal 
 estate is of a transitory and movable nature; and besides, this indulgence 
 to strangers is necessary for the advancement of trade and commerce. 
 Aliens may trade as freely as other people, only they were subject to 
 certain higher duties at the customhouse, but which were removed by the 
 24 George III. There were also some obsolete statutes of Henry VIII., 
 which prohibited alien artificers from working for themselves in this 
 kingdom; but it is generally held that they were virtually repealed by 
 statute 5 Elizabeth, c. 7. But Mr Hargrave says, that the statute 32 of 
 Henry VIII. is still unrepealed, notwithstanding its apparent opposition 
 to good policy and the improved spirit of commerce and the age in whicli 
 we live.* An alien may bring an action concerning personal property; 
 may make a will, and dispose of his personal estate in Great Britain; but 
 it is not so in France, when on the death of an alien, the king is entitled 
 to claim and take possession of all his property, by the droit d^auhainc, 
 or jus alhmatus^ unless indeed the alien enjoyed any peculiar exception. 
 But when these rights of an alien are mentioned, it must be borne in mind 
 that it is only friendly aliens, that is, the natives of those countries which 
 are in peace and amity with ourselves, who are entitled to these privileges. 
 Aliens, or natives of foreign countries at war with ourselves, have no such 
 rights and privileges during the continuance of the war, unless by the 
 king's special favour. But an alien enemy could sue in our courts on a 
 ransom bill, before all ransoms of captured ships were prohibited by statute 
 22 Geo. III., c. 2.; and Lord Mansfield, in a case of that kind, declared 
 from the bench, that " it was sound policy as well as good morality, to 
 keep faith with an enemy in time of war. This is a contract which arises 
 out of a state of hostility, and is to be governed by the law of nations and 
 the eternal rules of justice."f 
 
 * Coke. Litt. 2. n. 7. f Doug. 625. 
 
ALIENS, DENIZENS, AND NATIVES. 603 
 
 When it is said, that an alien is one that is born out of the king's domi- 
 nions or allegiance, it must be understood with some degree of restriction. 
 Before the Restoration, the common law, with a very few exceptions, made 
 every man born out of the kingdom an alien, so that after that happy 
 event, when the throne and the altar were restored, a particular act of 
 parliament became necessary " for the naturalization of children of his 
 majesty's English subjects, born in foreign countries during the late 
 troubles."* This maxim of the common law proceeded on the general 
 principle that every man owes a natural allegiance to the sovereign under 
 whose protection he is born, and that he cannot owe two such allegiances, 
 or serve two masters at once. The children of the king's ambassadors 
 born abroad were always held to be the king's natural subjects, because 
 the father, tliough residing in a foreign country, owes not even a local 
 allegiance to the prince to whom he is sent, but is the representative of 
 his own sovereign, who owes allegiance to no man. So also with regard 
 to his son ; he was supposed by a sort of fiction to be born under the king 
 of Great Britain's allegiance, represented by his father the ambassador. 
 In the same sense the children of other British subjects who are born under 
 the roof of the British ambassador, are, to all intents and purposes, British 
 subjects, and not the subjects of that sovereign in whose dominions they 
 are born. It is, therefore, very customary for our countrywomen residing 
 abroad, to repair for their accouchement to the house of his majesty's 
 ambassador, which preserves their rights as British subjects. To en- 
 courage foreign commerce, it was enactedf that all children born abroad, 
 provided both their parents were at the time of the birth in allegiance to 
 tlie king, and the mother had passed the sea by her husband's consent, 
 might inherit as if they had been born in England; and it has accordingly 
 been so adjudged in behalf of merchants. But by several statutes of more 
 modern date, these restrictions have been still farther taken off, so that all 
 children born abroad in foreign countries, vihose fathers (or grandfathers 
 by the father's side) were natural born subjects, are now esteemed natural 
 born subjects themselves. Unless indeed these said ancestors were attainted 
 or banished beyond sea for high treason, or were at the birth of such 
 children in the service of a prince at enmity with the crown of Great 
 Britain. All these exceptions to the common law, however, are in cases 
 where the father or grandfather is a natural born subject; but there is no 
 provision made for the children who have been born abroad, of a mother 
 a natural born British subject who has married a foreigner. And in the 
 case of the count Duroure, who was a Frenchman, and had married an 
 Englishwoman, by whom he had a son bom in France, it was decided that 
 
 ' * Statute 29 Car. II., c. 6. t 25 Edward III., st. 2. 
 
fi04 ALIENS, DENIZENS, AND NATIVES. 
 
 the son could not inherit his mother's lands in England, because he was 
 to all intents and purposes an alien. Yet the grandchildren of such male 
 ancestors are not privileged in respect of the alien's duty, except they be 
 protestants, and actually reside within the realm; neither are they enabled 
 to claim any estate or interest, unless the claim is made within five years 
 after the same shall accrue. 
 
 The children of aliens born in Great Britain are, generally speaking, 
 esteemed natural born subjects, and entitled to all the privileges of such, 
 unless the alien parents are acting in the realm as enemies. In this par- 
 ticular the constitution of France differs from ours ; for by their jus 
 alhinatus in that kingdom, a child born of foreign parents is an alien, 
 
 A DENIZEN is an alien born, who has obtained, ex donatione leg'iSy 
 letters patent from the king io make him a British subject, a high and 
 incommunicable branch of the royal prerogative. A denizen is, therefore, 
 a sort of middle state between an alien and a natural born subject, and 
 partakes of both their natures. He may either purchase lands at his 
 discretion, or succeed to them by will or devise, neither of which an alien 
 can do, but he cannot take by inheritance, which a natural born subject 
 can do; for the denizen's parent, through whom he must claim, being an 
 alien, had consequently no inheritable blood, and therefore "could not con- 
 vey any to his son. And upon a like defect of hereditary blood, a denizen's 
 issue born before denization, cannot inherit his real property, but his 
 issue born after may. A denizen is not excused from paying the alien's 
 duty, and some other mercantile burdens. All denizens are absolutely 
 barred the privilege of being either members of the privy council, or of the 
 great council of the nation — parliament — and that too either of the house 
 of peers or commons. Neither can they enjoy any office of civil or military 
 trust, nor be capable of accepting any grant of lands from the crown. 
 Natural born subjects may devise a title by descent, through their parents 
 or any ancestor, though they may have been aliens. But by a subsequent 
 statute,* the following restriction has been superadded : that no natural 
 born subject shall devise a title through an alien parent or ancestor, unless 
 he be born at the time of liis ancestor s death, who dies seised of the estate 
 which he claims by descent. With this exception, that if a descent shall be 
 cast upon the daughter of an alien, it shall be divested in favour of an 
 after born son ; and in case of an after born daughter or daughters only, 
 all the sisters shall be co-parceners. 
 
 Naturalization can only be performed by act of parliament, for 
 the act of naturalization puts the alien in exactly the same state as if he 
 had been born under the king's allegiance, with this exception, that he, 
 
 ♦ 11 & 12 W. and M., c. 6, 25 Geo. II., c. 39. 
 
ALIENS, DENIZENS, AND NATIVES. 605 
 
 as well as a denizen, is incapable of being a member of the privy council 
 or parliament, or of holding offices, grants, &c. This restriction was 
 found necessary by our ancestors after the Revolution, arising out of a 
 jealousy of the partiality which the prince of Orange so glaringly showed 
 towards his Dutch favourites, on whom he bestowed titles, and would have 
 bestowed all the crown lands in the kingdom, had not the parliament 
 remonstrated with him in a way not to be misunderstood.* Without this 
 disabling clause, no bill of naturalization can be received ; nor without a 
 clause disabling the person from obtaining any immunity in trade thereby 
 in any foreign country, unless he shall reside in Great Britain for seven 
 years next after the commencement of the session in which he has been 
 naturalized. Neither can any person be naturalized or restored in blood, 
 unless he has received tlie sacrament of the Lord's supper within one month 
 before the bringing in of the bill; and unless he also takes the oaths of 
 allegiance and supremacy in the presence of the parliament. But in the 
 cases of foreign princes and princesses, these provisions have usually been 
 dispensed with by special acts of parliament, previous to the introduction 
 of bills for their naturalization. 
 
 These are the principal distinctions between aliens, denizens, and natives, 
 and which parliament has frequently endeavoured to set aside since the 
 Revolution by one general act of naturalization in favour of all foreign 
 protestants. It was attempted in the reign of queen Anne. But after 
 three years' experience of its inexpediency, it was repealed, with the 
 exception of the clause which has just been mentioned for naturalizing the 
 children of British parents born abroad. Every foreign seaman who serves 
 for two years in time of war on board a British man of war is, by virtue 
 of the king's proclamation, ipso facto naturalized, under the restrictions, 
 however, of the statute of 12 Wil. III., already noticed; and all foreign 
 protestants and Jews, after a residence of seven years in any of the Ame- 
 rican colonies, without having been absent for more than two months at a 
 time, and also all foreign protestants who have served two years there in a 
 military capacity, or have been employed for three years in the whale 
 fishery, without afterwards absenting themselves from the king's dominions 
 for more than one year, and none of them falling within the incapacities 
 already mentioned, shall on taking the oaths of allegiance and abjuration,f 
 or, in some particular cases, an affirmation to the same effect, be natu- 
 ralized to all intents and purposes, as if they had been natural born subjects 
 of the British crown. Except as to sitting in parliament, holding offices, 
 and receiving grants of land, &c. from the crown. They are therefore 
 admissible to all the other privileges to which protestants or Jews born in 
 
 * 12 Wil. III. t 4 Geo. II., c. 21. 
 
606 THE CLERGY. 
 
 this kingdom are entitled. The famous Jew bill in the year 1753, was 
 the subject of very high debates, but which was carried,* and enabled all 
 Jews to prefer bills of naturalization in parliament without receiving the 
 sacrament of the Lord's supper according to the rites of the church of 
 England, which had been ordained by the statute passed in their favour 
 by James I. This statute, however, was only in force a few months, 
 and was repealed the following year: " that the above mentioned act, and 
 the several matters and things therein contained, shall be, and is, and are 
 hereby repealed and made void to all intents and purposes whatsoever."f 
 
 THE CLERGY. 
 
 The people, whether aliens, denizens, or natural born subjects, are 
 divisible into two kinds, clergy and laity. Aliens and denizens have been 
 already discussed. The following section will be devoted to tlie clergy, 
 comprehending all persons in holy orders, and in ecclesiastical offices. 
 The lay part of his majesty's subjects, or such of the people as are not 
 comprehended under the denomination of the clergy, are divided into 
 the distinct states of the civil, the military, and the maritime, have been 
 already described, and we therefore refer to them merely in this place. 
 
 This venerable body of men, being separate and set apart from the rest 
 of the people, in order to attend more closely to the service of Almighty 
 God, have in consequence considerable privileges allowed them by the 
 municipal laws of these kingdoms, which formerly were much greater, 
 but which were greatly abridged at the Reformation, on account of the 
 abominable abuses which had crept into the whole body of the Romish 
 clergy. The laws having exempted them from almost every personal duty 
 and obligation, they attempted to relieve themselves from every secular 
 tie. In reflecting on this most absurd abuse of their reasonable privileges, 
 Sir Edward Coke observes, '^ that as the overflowing of waters doth many 
 times make the river to lose its proper channel, so in times past ecclesias- 
 tical persons, seeking to extend their liberties beyond their true bounds, 
 either lost or enjoyed not those which of right belonged to them."J The 
 personal exemptions which the Romish clergy enjoyed, still for the most 
 part continue to be enjoyed by their protestant successors. A clergyman 
 in any part of Great Britain, cannot be compelled to serve on a jury, 
 nor to appear at a court leet, or view of Frankpledge in England or 
 
 * 26 Geo. ll.,c. 26. 
 
 t 27 Geo. II., c. I — Blackstone's Commentaries, with Professor Christian's Notes, &c. 
 Statutes at Large 
 \ 2 Inst. 4. 
 
THE CLERGY. 607 
 
 Ireland, which ahnost every other person in these two kingdoms is obliged 
 to do : but if a layman should be summoned on a jury, and before the 
 trial takes place he should take holy orders, he must notwithstanding 
 appear at the trial and be sworn. A clergyman cannot be chosen to any 
 temporal office, such ss bailiff, reeve, constable, or the like, in regard of 
 his own continual attendance on his sacred functions. He is privileged 
 from being arrested for civil suits during his performance of divine service, 
 that is for a reasonable time, eundo, redeundo, et morando, in going, 
 returning, and remaining to perform divine service. Also in cases of 
 felony, a clerk in orders, that is a clergyman, could have had the benefit of 
 clergy, without being branded in the hand, and that too more than oncej 
 in both which particulars he was distinguished from a layman. This was a 
 peculiar privilege of the clergy of the church of England, that sentence 
 could never be passed on them for any number of manslaughters, bigamies, 
 simple larcenies, or other clergyable offences; but a layman, even a peer, 
 might have been ousted of clergy, and subjected to the sentence of death on 
 a second conviction for a clergyable offence; for if a layman had once been 
 convicted of manslaughter, he might for bigamy, or any other felony within 
 the benefit of clergy afterwards suffer death, on production of the previous 
 conviction, although any of these crimes for the first offence would not 
 subject a man to the punishment of death. But for the honour of that 
 numerous class of his majesty's subjects, there has never almost been an 
 instance in which they have had occasion to claim the benefit of this 
 privilege. 
 
 Benefit of dergy, privile^ium clericale, being now wholly abolished,* 
 the law on the subject is of little more use now than as a matter of history 
 or curiosity. It had its origin in the pious regard paid by Christian 
 princes to the church in its infant state, and the ill use which the Romish 
 clergy made of that piety. The exemptions which their piety induced 
 them to make, were principally of two kinds : 1 . Exemption of places 
 consecrated to religious duties from criminal arrests, which was the 
 foundation of sanctuaries. 2. Exemptions of the persons of the clergy 
 from criminal process before a secular judge, in a few particular cases, 
 which was the true original and meaning of the benefit of clergy. " The 
 wisdom of the English legislature having, in the course of a long and 
 laborious process, extracted by a noble alchymy rich medicines out of 
 poisonous ingredients ; and converted by gradual mutations, what was at 
 first an unreasonable exemption of particular popish ecclesiastics, into a 
 merciful mitigation of the general law, with respect to capital punishment." 
 But as the clergy have their privileges, so also they have many disabilities, 
 
 * 7 & 8 Geo. IV., c. 28. 
 
608 THE CLERGY. 
 
 on account of their spiritual avocations. The clergy are incapable of 
 sitting in the house of commons, because they sit in the convocation, whicli 
 is in fact part and parcel of the parliament. A committee of the house of 
 commons in 1785, decided that a gentleman, who had been regularly 
 admitted to deacon's orders, was incapable of being a member of that house. 
 Many of the arguments in that case might with equal force be urged for the 
 admission or exclusion of a person in priesVs orders. The chief authorities 
 for the exclusion of the clergy, are certain entries in the journals of the 
 house of commons, where it is urged that persons returned being clerks, 
 they either have or might have a voice in the house of convocation. Lord 
 Coke says, " that none of the clergy, though they be of the lowest order, 
 are eligible, because they are of another body, that is, of the convocation;" 
 and he refers* to an entry in the commons' journals. But besides these 
 authorities, there are canons of the church which prohibit the clergy from 
 voluntarily relinquishing the office of a deacon or ininister, from using 
 themselves in the course of their lives as laymen, and from exercising 
 secular jurisdictions. Mr Woodesdon has observed,-}- that the arguments 
 from the convocation ought not to be urged against unbenejiced clergymen, 
 as they can neither sit in the convocation, nor vote for the proctors or 
 representatives in convocation. 
 
 The same reason for disqualifying the inferior clergy from sitting in the 
 house of commons, were it good, might be applied for the exclusion of 
 the bishops from the house of lords, because they sit of right in, and form 
 the upper house of convocation, to which they are summoned by the king's 
 writ, and are not elected like the members of the lower house of convoca- 
 tion. It frequently happens that a lay peerage descends to a clergyman 
 in priest's orders : but it has never been supposed, even although he should 
 obtain a benefice, that his sacred character would disable him from taking 
 his seat in the house of peers. Until the Reformation, twenty-nine of the 
 regular clergy, abbots and priors, who were dead in law to most other 
 purposes, had seats in the house of lords in consequence of the lands which 
 they held in capite of the crown. In Scotland, the three estates sat and 
 voted together in one chamber. It would have been unaccountable, if by 
 the common law holy orders had excluded one of these estates from parlia- 
 ment, and not the others ; but both in Scotland and Ireland, the clergy 
 were declared to be ineligible by statute; by which we may clearly infer, 
 that without the authority of an act of parliament, the clergy would of 
 common right have participated in this privilege with other subjects. Mr 
 Hody very justly calls the argument drawn from the convocation a new 
 pretence^ which was resorted to in the time of queen Mary of bloody 
 memory,! ^" order to exclude some protestant clergy from the house of 
 * 4 Inst. 47. t 1 Gibs. Cod. 180. 184. ^ Wight, 293. Lord Mountm. 60. 
 
THE CLERGY. 609 
 
 commons. In the time of Richard II., there is a remarkable instance of 
 a clergyman, who signalized himself in the house of commons:* he is 
 called Sir Thomas Haxey, clerk. He introduced a bill, which passed the 
 commons, to lessen the king's expenses, and to remove bishops and ladies 
 from his court, for which the commons were obliged to make concessions, 
 and to surrender the author of the bill to the king. He was tried by par- 
 liament, and condemned to die as a traitor; but his life was spared by the 
 intercession of the bishops, because he was a clergyman. His boldness, 
 however, shows that he had no suspicion that his title to a seat in parlia- 
 ment could be questioned. As little weight is due to the arguments drawn 
 from the canons as to those from the convocation; for by proving too 
 much they prove nothing; for were these available, the canons would also 
 preclude the clergy from acting in the commission of the peace, a secular 
 jurisdiction which they have long exercised. If the clergy were eligible 
 prior to the enactment of the canons, or independent of their authority, 
 then the validity of those made antecedent to the 25th Henry VIII. may 
 be justly questioned; for eligible persons might in all cases, and may still 
 in some, be compelled to serve in parliament against their own consent; 
 and no set of men ought to be alloAved to disable themselves, and deprive 
 their country of their services by any laws of their own making, which are 
 not expressly confirmed by the king's authority. The objection to a 
 clergyman's eligibility does not seem to be much stronger, even when he 
 is beneficed; for from the residence enforced by the spiritual judge, the 
 ninth chapter of the articuli clerici exempts and privileges those who are 
 engaged in the service of the king and commonwealth; '' nee debet did 
 tender e in prejudicium ecclesiasticce lihertatis, quod pro rege etrepuh- 
 lica necessarium invenitur; whatever is found to be necessary for the 
 king and the commonwealth, ought not to be held prejudicial to ecclesias- 
 tical liberty : a declaration which lord Coke says ought to be written in 
 letters of gold. An attendance in parliament is pre-eminently '^ pro rege 
 et republica necessarium, necessary for the king and commonwealth," 
 and the presence of the clergy there would prevent many prejudices and 
 false statements regarding the church from going abroad through the 
 medium of the speeches of honourable members, which are made sometimes 
 in ignorance, and not infrequently from malice prepense. The late Mr 
 Canning, for instance, accused the church of England of holding the 
 doctrine of consuhstantiation, and there being no one to contradict such a 
 libel on the church, it went abroad to the world as doctrine of that church. 
 Whereas consubstantiation and transuhstantiation being suhstantially 
 the same thing, every member of the house of commons, at the time 
 
 * Councils and Convocations, 429. 
 4 H 
 
610 THE CLERGY. 
 
 when that memorable speech was made, had taken the oath against it, and 
 sworn that they did not believe one word of any such doctrine. Had a 
 clergyman been eligible to sit in parliament, and been present, his contra- 
 diction of this dogmatic assertion would have placed the " bane and 
 antidote" before the public at the same time, and prevented the ill effects 
 of such a speech on the public mind. 
 
 With regard to the residence required by the statute of Henry VIII.,* 
 Professor Christian is of opinion that important rights and franchises are 
 not lost or destroyed, merely because they become in some degree incon- 
 sistent with the provisions of a new statute, which is entirely silent respect- 
 ing them. If tliat were the case, the beneficed clergy must have also lost 
 their capacity to sit in convocation; for though the statute makes excep- 
 tions in cases of absence, as formerly, on pilgrimages and the king's service 
 abroad, yet there is no exception for attendance on the convocation. But 
 even at the time when the clergy taxed themselves in convocation, that 
 circumstance was not adequate to bar them from electing, or being elected 
 to parliament. Taxation is certainly an important branch of legislation, 
 yet it is far from being the whole concern of that power which superintends 
 and protects our lives, our liberties, and our property. When the clergy 
 ceased to tax themselves, the reason for their sharing in the rights and 
 privileges of representation was strengthened, hut not created. After 
 the clergy, in their convocation, granted the last subsidy in 1663, and 
 were afterwards taxed in parliament, as if this alone had precluded them 
 from a share of parliamentary representation, they tendered their votes at 
 county elections in right of their glebes, which have ever since be«i 
 received with tacit approbation. But the capacity to elect and to be elected 
 being originally the same, when you take away an obstruction from the 
 one, you remove it from the other also, unless some express law has super- 
 induced a further impediment. But the learned professor apprehends that 
 the reason why the clergy, having no other lands than their glebes, never 
 voted nor were elected in ancient times, did not in any degree depend 
 either on taxation or the convocation; but that it was owing entirely to 
 the tenure of their glebe lands, viz. frankalmoign^ which exempted them 
 from attendance on the courts of the king, the lords, or the sheriffs; and 
 even if they held other lands, holy orders exempted them by the common 
 law from secular services and temporal ofRces : this privilege was con- 
 firmed by magna charta and the statute of Marlbridge. This was an 
 exemption, but not an exclusion. But what have now become important 
 rights, were originally considered burdensome duties. It is not strange, 
 therefore, that the clergy should avail themselves of this privilege, till the 
 disuse became regarded as an incapacity.! These glebe lands are their 
 * Stat. 21, c. 13. f 8 Henry VI., c. 7. 
 
THE CLERGY. 611 
 
 freeholds. When they were admitted to vote in right of these freeholds, 
 it followed as a consequence, that they were also eligible to represent, 
 unless some better authority can be produced for their exclusion, than 
 merely disuse, or their having a voice in the convocation, where they no 
 longer tax themselves, or their being prohibited by canons which in other 
 instances are disregarded, and which probably could never be esteemed 
 obligatory on parliament. 
 
 Mr Home Tooke, a gentleman who had taken priest's orders early in 
 life, but who had long ceased to officiate, or even to appear as a clergy- 
 man, was returned for Old Sarum. No petition having been presented 
 within the time limited by Grenville's act, one of the members moved for 
 the appointment of a committee to search for precedents respecting the 
 eligibility of the clergy to sit in the house of commons. This committee 
 afterwards reported, that there are few instances with particular additions 
 till the 8th of Henry IV., for then the practice of returning citizens and 
 burgesses by indentures annexed to the writ first prevailed, yet they find 
 five, with the addition of clericus. The committee state also, that no 
 such name as Sir Thomas Haxey, formerly mentioned, exists in the 
 returns of the 20th Richard 11., which are perfect and extant in the 
 Tower. It appears, however, by a record in Mymer's Fcedera* that 
 Sir Thomas Haxey was not a member of the house of commons, but the 
 earl of Nottingham's proxy in the house of lords. At that period, 
 namely, in the reign of Richard II., commoners might act in the absence 
 of peers, as their proxies. Although it is manifest from this record, that 
 Haxey was not a member of the house of commons, yet the inference 
 from the case is plain, that if any prohibition in the canon law would have 
 prevented him from representing a county or borough in the house of 
 commons, the same obstacle would have prevented him from exercising 
 the lay functions of a temporal peer in the house of lords. 
 
 When the question of the eligibility of the clergy to sit in the lower 
 house of parliament was discussed in the commons, the prime minister 
 proposed that a bill should be brought in to declare the clergy ineligible, 
 by which means all doubts and questions might for the future be removed. 
 The debate in both houses went chiefly on the point, whether this statute 
 would be declaratory of what was already the law, or introductory of a 
 new one. Tliose who maintained the clergy's ineligibility, argued chiefly 
 from the canon law; but the opposite party, particularly lord chancellor 
 Thurlow, adopted most of the arguments which we have just enumerated 
 as the sentiments of the learned editor of Sir William Blackstone's com- 
 mentaries. By an actf to remove doubts respecting the eligibility of 
 
 * Tom. VII. p. 844. \ 41 Geo. III., c 73. 
 
«12 THE CLERGY. 
 
 persons in holy orders to sit in the house of commons, it was declared and 
 enacted, that no person having been ordained to the office of a priest or 
 «leacon, is or shall be capable of being elected to serve in parliament as a 
 .nember of the house of commons; and if any such person shall sit in the 
 house, he shall forfeit £500 a-day, and be incapable of holding any pre- 
 ferment or office under his majesty. But the statute was not to extend 
 to the members of the house during the continuance of that parliament. 
 Formerly the clergy were excluded from the parliaments of Scotland and 
 Ireland, and now by this statute they are excluded from the commons' 
 house of the imperial parliament of Great Britain. 
 
 Although the clergy have some privileges peculiar to their sacred 
 office, yet they are not without their disabilities also, on account of their 
 spiritual functions. From what we have said above, they are incapable of 
 sitting in the house of commons,* and they are not in general allowed to 
 take any lands or tenements to farm, under a penalty of ten pounds 
 a-month, and a total avoidance of the lease j but by a subsequent actf 
 passed for the purpose of consolidating and amending the existing laws 
 relative to spiritual persons, this clause has been repealed. The second 
 section of the act forbids all spiritual persons from occupying and culti- 
 vating any lands exceeding in the whole eighty acres, without his bishop's 
 consent, under a penalty of £40 per acre. By the third clause they are 
 equally forbidden to engage in any trade or dealing for gain, under the 
 penalty of forfeiting the goods thus trafficked in. All spiritual persons 
 engaged in keeping schools, and giving instruction for profit and reward, 
 are however exempted from the operation of this clause; neither does it 
 extend to goods bought or resold for domestic purposes, provided the same 
 were originally purchased bona fide for absolute use. But they are not 
 to sell their produce in any market or place of public sale. They cannot 
 keep any tanhouse or brewhouse, under a penalty of ten pounds per 
 month. This singular prohibition against a tanhouse, probably originated 
 in some practice peculiar to the times when the act was passed. A 
 clergyman cannot engage in any manner of trade, nor sell any merchandise 
 whatever, under the penalty of forfeiting treble the value. But though a 
 clergyman is subject to penalties for trading, yet his contracts are valid, 
 and he is liable to be made a bankrupt. 
 
 In the frame and constitution of ecclesiastical polity there are several 
 ranks and degrees, which shall be considered in their respective order, merely 
 as they are taken notice of in the secular laws of England, without inter- 
 meddling with the canons and constitutions, in this place at least, by which 
 the clergy have bound themselves. When we come to treat of the convo- 
 
 * 21 Henry VIII., c. 13. \ 67 Geo. III., c. 99. 
 
THE CLERGY. 613 
 
 cation of the church of England, an^ the general assembly of the church 
 of Scotland, we will add such farther particulars regarding each as do not 
 fall within the scope of this article. Meantime we will consider each 
 division of this important portion of the people^ in three points of view; 
 1. The method of their appointment; 2. Their rights and duties; and, 
 3. The manner wherein their character or oflSlce may cease. 
 
 I. An archbishop or bishop is elected by the chapter of his cathedral church, by virtue 
 of a license from the crowTi. In very early times, election was the usual mode of elevation 
 to the episcopal chair, throughout all Christendom, which was promiscuously performed by 
 the laity as well as the clergy, till in time it became tumultuous, and the emperors and other 
 sovereigns of the respective kingdoms of Europe, took the appointment in some degree into 
 their own hands, by reserving to themselves the right of confirming these elections, and of 
 granting investiture of the temporalities which soon began to be universally annexed to this 
 spiritual dignity. The elected bishop could neither be consecrated, nor receive any secular 
 profits, without having previous confirmation and investiture. Pope Adrian I., and the 
 council of Lateran, in the year 773, acknowledged this right to be vested in the emperor 
 Charlemagne, and it was universally exercised by all other Christian princes : but the policy 
 of Rome began by degrees to exclude the laity from any share in these elections, and to 
 confine them wholly to the clergy, and which at length they completely effected. The laity 
 yielded their privilege the more readily, that they soon practically discovered that it was a 
 right of very little consequence, so long as the crown or the pope was in possession of an 
 absolute negative, which was in fact equivalent to a direct right of nomination. Hence the 
 right of appointing to bishoprics is said to have been in the crown of England, as well as the 
 other kingdoms of Europe, even in the Saxon times ; because the rights of confirmation and 
 investiture were in effect, though not formally, a right of complete donation.* But when 
 by length of time the custom of making elections by the clergy alone was fully established, 
 the popes began to except against the usual method of granting these investitures, which 
 was per annidum et baculum, by the prince delivering to the prelate elect a ring and pastoral 
 staff, or crosier. Pretending that this was an encroachment on the church's authority, and 
 an attempt to confer a spiritual jurisdiction by these symbols, pope Hildebrand, commonly 
 called Gregory VII., towards the close of the eleventh century, published a bull of excom- 
 munication against all princes who should dare to confer investitures, and all prelates who 
 should venture to receive them. This was a bold and effectual step towards effecting the 
 plan then adopted by the Roman see, of rendering the clergy entirely independent of the 
 civil authority; and long and eager were the contests occasioned by this unjustifiable claim 
 of the pope. But at length, when the emperor Henry V. agreed to remove all suspicion of 
 encroachment on the spiritual character, by conferring investitures in his dominions for the 
 futui-e per sceptrum, and not as formerly, ;;er annulum et baculum ; and when the kings of 
 England and France consented to alter the forms in their kingdoms, and receive only homage 
 from the bishops for their temporalities, instead of investing them with the ring and crosier, 
 the court of Rome found it prudent to suspend its other pretensions till a more convenient 
 season. 
 
 This concession was obtained from Henry I. of England, glad to compound his rights 
 with that obstinate and arrogant prelate, archbishop Anselm, in the year 1107; but about 
 a century afterwards, in order to obtain the protection of the pope against the rebellion of 
 his discontented barons, king John was also prevailed on to concede to all the monasteries 
 and cathedral churches in the kingdom, the free right of electing their prelates, whether 
 they were abbots or bishops, reserving to the crown only the custody of the temporalities 
 during the vacancy. On the refusal of the form of granting a license to elect, (which is the 
 original of the conge (C elite,) the electors might proceed without it; the crown claiming the 
 
 * S eld en. 
 
614 THE CLERGY. 
 
 right of subsequent approbation, trhich was pot to be denied without a reasonable and just 
 cause. King John expressly recognized this grant in his famous Great Charier, to which 
 we refer our reader, and was re-established by Edward III.* 
 
 But on the suppression of the pope's supremacy at the Reformation by Henry VIII. ,t 
 the ancient right of nomination was in effect restored to the crown. It was enacted that at 
 every future avoidance of a bishopric, the king may send his usual license to the dean and 
 chapter to proceed to election. This statute was afterwards repealed by Edward VI., and 
 it was then enacted, that all bishoprics should be donative as formerly. The statute of 
 Edward VI. states in the preamble, that these elections are in very deed no elections; but 
 only by a writ of conge d'elire, have colours, shadows, or pretences of election. This is 
 certainly good common sense ; for the permission to elect, where a power of rejection does 
 not exist, can hardly be reconciled with freedom of election. This statute was ag lin repealed 
 by Mary. The bishoprics of the new foundation were always donative, and all the Irish 
 bishoprics are so. If the dean and chapter delay their election above twelve days, the 
 nomination devolves on the king, who may by letters patent appoint such persons as he 
 pleases. The election or nomination of a bishop must be signified by the king's letters 
 patent to the archbishop of the province; but if it be of an archbishop, it must be signified 
 to the other archbishop and two other bishops, or to four bishops, requiring them to confirm, 
 invest, and consecrate the person so elected ; which they are bound to perform immediately, 
 and without any application to the see of Rome. After which tlie bishop elect shall sue the 
 king for his temporalities, shall make oath to the king and to none other, and shall take 
 restitution of his secular possessions out of tJie king's hands only. It is a prevailing vulgar 
 error, that, before accepting the bishopric which is offered to him, every bishop affects a 
 maiden coyness, and answers 710I0 episcopari. The bishops do not give any such answer at 
 present, and it is more than probable that they never did at any time in this country. And 
 if any such dean and chapter do not elect in the manner appointed in the act, or if the 
 archbishop or bishop should refuse to confirm, invest, and consecrate such bishop elect, they 
 shall incur all the penalties of a premunire. In the form of consecrating bishops, it is directed 
 and confirmed by various statutes since the Reformation, that at his consecration a bishop 
 must be full thirty years of age. But in popish times there do not seem to have been any 
 such restrictions ; for all history is full of instances of bishops and archbishops being appointed 
 by the plenitude of the pope's power even in infancy. The archbishopric of St Andrews 
 was held by an illegitimate son of James IV., who, doffing the episcopal robe, and encased 
 in armour, was killed ^t the early age of eighteen years, fighting side by side with his royal 
 father at Flodden Field. 
 
 The church of England is governed by two archbishops and twenty-four bishojw, besides 
 the bishop of Sodor and Man, who is not a lord of parliament. The church of Ireland is 
 governed by four archbishops, and formerly eighteen bishops : but a recent act of parliament 
 has reduced the whole number of archbishops and bishops to eleven. An archbishop is the 
 chief bishop of the province. Next under the king he has supreme power, authority, and 
 jurisdiction, in all causes and things ecclesiastical. In Italy the title of an archbishop is merely 
 a title of honour; he has the precedence of, but no power or authority over other bishops. 
 Metropolitan is a title given to the bishop of the chief city of a province. He is also styled 
 primate, because he is primus, or first in the province. A patriarch is the chief bishop over 
 several kingdoms or provinces, as an archbishop is of several dioceses. J 
 
 An archbishop is the chief of the clergy in a whole province ; and has the inspection of the 
 bishops of that province, as well as of the inferior clergy, and may deprive them for notorious 
 causes. In the eleventh year of William III., the bishop of St David's was deprived for 
 simony and other offences, in a court held at Lambeth before the archbishop of Canterbury, 
 who called six other bishops to his assistance. The bishop of St David's appealed to the 
 delegates, who afiirmed the archbishop's sentence; and after several fruitless applications to 
 the court of king's bench and the house of lords, he was at last obliged to submit to the 
 archbishop's judgment. In his own diocese the archbishop exercises episcopal jurisdiction, 
 
 * Statute 52. c. 6. f 26 Henry VIII., c. 20. X Burns' Ecclesiastical Law. 
 
THE CLERGY. 615 
 
 "IS the other bishops do in theirs; and he exercises archi episcopal authority in his pro- 
 vince. In his official capacity as an archbishop, on receipt of the king's writ, he calls the 
 bishops and clergy of his province to meet in convocation ; but as the law stands, he cannot 
 assemble them without the king's writ. All appeals are made to him from inferior juris- 
 dictions within his province ; and as an appeal lies from the bishops in person to the arch- 
 bishop in person, so it also lies from the consistory couit of each dio«^ese to his archiepiscopal 
 court. During the vacancy of any see in his province, he is the guardian of its spiritualities, 
 and the king of its temporalities ; and he executes all ecclesiastical jurisdiction in such vacant 
 diocese. During the va«incy of an archiepiscopal see, the dean and chapter are its spiritual 
 guardians, ever since the office of prior of Canterbury was abolished at the Reformation. 
 The archbishop is entitled to present by lapse to all the ecclesiastical livings in the disposal 
 of his diocesan bishops, if they have not presented within six months. And the archbishop 
 has a customary prei'ogative, when he consecrates a bishop, to name a clerk or chaplain of 
 his own to be provided tor by such sufl'ragan bishop. In lieu of which it is now customary 
 for the bishop to make 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 arch- 
 bishop himself shall choose, which is therefore called his ojition ; which is only binding on 
 the bishop himself who grants it, but not on his successors. The consequence, therefore, is, 
 that the archbishop can never have more than one option at once from the same diocese. 
 These options become the private patronage of the archbishop, and on his death are trans- 
 mitted to his personal representatives, and not to his official successors. The archbishop 
 may direct by his will to whom his executors shall present on a vacancy ; which direction is 
 obligatory on his executors to observe, according to a decision of the house of lords.* If a 
 bishop dies during the vacancy of any benefice within his patronage, the presentation devolves 
 to the crown ; and likewise if a bishop dies after an option becomes vacant, and before the 
 archbishop or his executors has presented, and the clerk is instituted, the crown, pro hac vice, 
 will be entitled to present to that dignity or benefice. For the bishop's grant of the option 
 to the archbishop has no efficacy beyond the bishop's life. The archbishop's prerogative 
 itself, seems to have been derived from the legatine powers formerly in popish times 
 annexed by the popes to the metropolitan of Canterbury.f And we may add, that the papal 
 claim itself (like most others of that encroaching see) was probably set up in imitation of 
 the imperial prerogative prima, or prijnarice preces, whereby the emperor exercises from 
 time immemorial a right of naming to the first prebend that becomes vacant after his 
 accession in every church throughout the empire. A right that was also exercised by the 
 crown of England in the reign of Edward I., and which probably gave rise to the rojal 
 corodies. 
 
 The archbishop of Canterbury is primate and metropolitan of all England, and has under 
 him in his province twenty-one bishops, viz. Rochester, London, Winchester, Norwich, 
 Lincoln, Ely, Chichester, Salisbury, Exeter, Bath and Wells, Worcester, Coventry and Litch- 
 field, Hereford, Llandaffe, St. David's, Bangor, and St. Asaph. These were founded before 
 the Reformation; after that era Henry Vlll. founded the following, Gloucester, Bristol, 
 Peterborough, and Oxford. Under the archbishop of York are four bishops : viz. Chester, 
 Durham, Carlisle, and Sodor and Man. The four archbishops of Ireland, are Armagh, 
 who is primate of all Ireland ; Dublin, primate of Ireland ; Cashel, primate of Munster; 
 and Tuam, primate of Connaught. They have two concurrent jurisdictions : one as ordinary 
 or bishop within his own diocese; the other as superintendent over all the bishops within his 
 province, to correct and supply their defects.j 
 
 It is likewise the privilege by custom, for the archbishop of Canterbury to crown the 
 kings and queens of Great Britain ; and it was the privilege of the archbishop of St Andrews 
 to crown the kings and queens of Scotland. It is said that the archbishop of York has the 
 privilege of crowning the queen consort, and to be her perpetual chaplain. § The archbishop 
 of Canterbury has also the power of granting dispensations in any case not contrary to the 
 
 * Burns' Ecc. Law. f Sherlock of Options. t Burns' Eccl. Law. § Ibid. p. 178. 
 
fll6 THE CLERGY. 
 
 Holy Scriptures and the law of God, which were formerly granted by the pope,* and which 
 is the foundation of his granting special licenses to marry at any time or place, to hold two 
 livings, and the like. And on this also is founded the right he exercises of conferring 
 degrees in prejudice of the two universities. When the dominion of the pope was overturned 
 in this country, this prerogative of dispensing with the canons of the church was transferred 
 by that statute to the archbishop of Canterbury, in all cases in which dispensations were 
 accustomed to be obtained at Rome; but in unaccustomed cases the matter is always referred 
 to the king in council. The pope took upon him to dispense with every ecclesiastical canon 
 and ordinance. But in some of the cases where the archbishop alone has authority to 
 dispense, his dispensation with the canon, such as to hold two livings, must be confirmed 
 under the great seal. But although the archbishop can confer all the degrees which are 
 taken in the universities, yet the graduates of the two universities, by various acts of parlia- 
 ment and other regulations, are entitled to many privileges which are not extended to what 
 is called a. Lambeth degree: as, for instance, those degrees which are a qualification for 
 a dispensation to hold two livings, are confined by 31 Henry VIIL, c. 13, to the two 
 ' universities. 
 
 Besides the administration of certain holy ordinances peculiar to that sacred order, the 
 power of an archbishop principally consists in inspecting the manners of the people and 
 clergy, and punishing them by ecclesiastical censures in order to their reformation. For this 
 purpose he has several courts under him, and may visit at pleasure any part of his province. 
 He appoints his chancellor to hold his courts for him, and to assist him in matters of eccle- 
 siastical law, who, as well as all other ecclesiastical officers if lay or married, must be a 
 doctor of the civil law in some university. It is also the business of a bishop to institute, 
 and to direct induction to all ecclesiastical livings in his diocese. 
 
 Archbishoprics and bishoprics may become void by death, deprivation for any very gross 
 or notorious crime, and also by resignation. All resignations must be made to some superior. 
 Therefore a bishop must resign to his metropolitan, or archbishop of his province ; but the 
 archbishop can resign to none but the king himself. An archbishop has the titles and styles 
 of Grace, and Most Reverend Father in God by Divine jrrovidence ; the bishops those of 
 Lord, and Right Reverend Father in God by Divine permission. Archbishops are enthroned, 
 and bishops are installed. 
 
 II. A dean and chapter are the bishop's council, to assist him with their advice in affairs 
 of religion, and also in the temporal affairs of his see. When the rest of the clergy were 
 settled in the several parishes, the dean and chapter were reserved for the celebration of 
 divine service in the bishop's own cathedral. The chief of those who presided over the 
 rest, obtained the name of decanus or dean, being probably at first appointed to superintend 
 ten canons or prebendaries, that is, clergymen. 
 
 All the ancient deans are elected by the chapter, by conge d'elire from the king, and 
 letters missive of recommendation, in the same manner as the bishops ; but in those chapters 
 that were founded by Henry V 111., out of the spoils of the dissolved monasteries, the deanery 
 is donative, and the installation is merely by the king's letters patent. The chapter, con- 
 sisting of canons or prebendaries, are sometimes appointed by the king, sometimes by the 
 bishop, and sometimes they are elected by each other. The new deans and chapters which 
 Henry VIII. added to the old bishoprics, are eight, viz. Canterbur)', Norwich, Winchester, 
 Durham, Ely, Rochester, Worcester, and Carlisle. That blufl" monarch founded five new 
 bishoprics, with new deans and chapters, out of the lands of the suppressed monasteries, 
 viz. Peterborough, Chester, Gloucester, Bristol, and Oxford. He also founded a bishopric 
 at Westminster, and Thomas Thirlby was the only bishop that ever filled that see. He 
 surrendered the bishopric to Edward VI., 30th March, 1550 ; and on the same day it was 
 dissolved, and re-annexed to the see of London. Queen Mary afterwards filled the church 
 with Benedictine monks ; and Elizabeth, with the concurrence of parliament, turned it into 
 a collegiate church subject to a dean. 
 
 As before observed, the dean and chapter are the nominal electors of a bishop, The 
 
 * 25 Henry VII I., c. 21. 
 
THE CLERGY. fil7 
 
 bishop is their ordinary and immediate superior; and, generally speaking, has the power of 
 visiting them, and checking any irregularities into which they may fall. They had also a 
 check on the bishop at common law, for till the statute 32 Henry VIH. the bishop's grant 
 or lease would not have bound his successors unless confirmed by the dean and chapter. 
 
 Deaneries and prebends may become void, like a bishopric, by death, deprivation, or by 
 resignation to either the king or the bishop. And it may be once for all observed, that if 
 a dean or prebendary, or other spiritual person, be made a bishop, all the preferments of 
 which he was before possessed become void, and the king may present to them in right of 
 his prerogative rojal. They are not void by the election, but only by the consecration. 
 
 Every diocese in England is divided into archdeaconries. There are sixty altogether; 
 and again each archdeaconry is subdivided into deaneries. Deaneries are again parted into 
 parishes, towns, and hamlets. The divisions into parishes were not done at first, but a con- 
 siderable time after the introduction of Christianity. For many centuries after Christ, every 
 bishop was universal incumbent of his diocese, and which was originally called a parish. 
 He lived at the mother church or cathedral, and all his clergy lived in common with him. 
 Although the bishop sent out clergy to reside constantly in newly erected stations, yet he 
 still reserved a certain number in his cathedral to counsel and assist him. Tliese were 
 afterwards named deans and prebendaries, or canons. 
 
 In their original institution archdeacons had no relation to the diocese. They were chosen 
 by the bishop to have the charge of the deacons, who are the lowest order in the church. 
 By degrees this office became universal, and they began to share with the bishop in his 
 authority. Their proper business was to attend the bishop at the altar, to direct the deacons 
 and other inferior officers in their several duties, for the due performance of divine service. 
 They attended the bishop at ordinations, and assisted him in managing the revenues of the 
 church ; but did not possess any of that jurisdiction either in the cathedral or the diocese, 
 with which they are now invested. The council of Laodicea, in the year 360, ordained that 
 no bishops should be placed in country villages, but only itinerant or visiting presbyters. 
 The archdeacon being always near to the bishop, was frequently employed by him in visiting 
 the clergy of his diocese, and in the despatch of other matters relating to the episcopal cure ; 
 so that, by the beginning of the seventh century, the archdeacon seems to have been fully 
 possessed of the chief care and inspection of the diocese, in subordination to the bishop. The 
 canon law styles the archdeacon the bishop^s eye. In the bishop's absence he has power to 
 hold visitations, and, under the bishop, power to examine candidates for holy orders. He 
 also gives institution and induction to benefices. He excommunicates, imposes penances, 
 suspends, corrects, inspects and reforms irregularities and abuses among the clergy. He has 
 the charge of the parochial churches within the diocese. In short, he supplies the bishop's 
 absence, and is his vicegerent. 
 
 The institution of deaneries is something analogous to the division of the civil government 
 into hundreds, tithings, and frank pledges. Bearing some resemblance to this, every bishop 
 divided his diocese into deaneries, each of which contained a district of ten parish churches. 
 Over every such deanerj', or decennery, the bishop appointed a dean. In England there 
 are four sorts of deans and deaneries. The first is a dean who has a chapter consisting of 
 prebendaries or canons subordinate to the bishop. The dean and his chapter are the bishop's 
 councillors both in the spiritual and temporal affairs of his diocese. This council became 
 necessary after the subdivision of parishes, when the whole body of his clergy were dispersed 
 throughout his diocese. This council was instituted to assist the bishop, that the burden of 
 the whole church and its government might not lie entirely on the bishop's shoulders. The 
 faecond is a dean without a chapter. He is presentative, and has cure of souls. He has 
 a court, and holds jurisdiction, but is not subject to the bishop's visitation. The third dean 
 is also ecclesiastical. His deanery is donative, but he has no cure of souls. He has a 
 court, and holds plea and jurisdiction within his peculiar, of all ecclesiastical matters and 
 things. The fourth are the rural deans. They have no absolute judicial power, but are to 
 order the ecclesiastical aflairs within their deanery and precinct under the bishop's or arcti- 
 deacon's directions, and in many cases act as the bishop's substitutes. All the ancient deans 
 were elected by the chapter, by covge d' elire from the king, accompanied by letters missive 
 
 4 I 
 
618 THE CLERGY. 
 
 of recommendation, in the same manner as {he bishops. Those which have bnen erected 
 since the Reformation are donative, and possession is given by letters patent from the 
 crown. 
 
 After the bishops dispersed the body of their clergy to the care of parochial churches, they 
 reserved a college of priests for counsel and assistance to themselves, and for the constant 
 celebration of divine service at the cathedral church of the diocese. Among these the tenth 
 pei-son had an inspecting or pi-esiding power, till in time the dean swallowed up the office of 
 all the inferior, and in subordination to the bishop became governor of the whole society. 
 The dean had authority over all the canons, presbyters, and vicars. He gave them posses- 
 sion when instituted by the bishop. He inspected their discharge of the cure of souls. He 
 convened and presided in chapters, and heard and determined causes, f Je visited all churches 
 within the limits of his jurisdiction once in three years. Men of this dignity were called 
 archipresbj/ters, because they had a superintendence or primacy over all their college of 
 priests. The title of dean is a title of dignity. The canons require deans to reside at their 
 cathedral churches fourscore and ten days at the least, corijunctim or divisi?n, in every year 
 at least. And while there he is to preach the word of God, and keep good hospitality, unless 
 lie is otherwise hindered by good and weighty reasons known to, and allowed by, the bishop. 
 A dean and chapter is a body corporate spiritual. They were originally selected by the 
 bishop as his council, but they derive their corporate capacity from the crown. By degrees 
 their dependance on and relation to the bishop gradually diminished, till at last the bishop 
 has little more power left to him than that of visiting them, and he scarcely nominates the 
 one half of them.* 
 
 III. An archdeacon has an ecclesiastical jurisdiction immediately subordinate to the 
 bishop, throughout the whole of his diocese, or in some particular part of it. He is usually 
 appointed by the bishop himself, and has an authority which was originally derived from 
 the bishop, but is now independent and distinct from his.f He therefore visits the clergy, 
 and has his separate court fur punishment of offenders by spiritual censures, and for hearing 
 all other causes of ecclesiastical cognizance, 
 
 IV. Rural deans are very ancient officers in the church, but are now almost grown out 
 of use, though their deaneries still subsist as an ecclesiastical division of the diocese, or 
 archdeaconr)'. They seem to have been the bishop's deputies, planted all round his diocese, 
 for the better inspection of the parochial clergy, to inquire into and report dilapidations, and 
 to examine candidates for confirmation, and were armed in minuter matters with an inferior 
 degree of judicial and coercive authority. 
 
 V. The next, and indeed the most numerous, order of men, in the system of ecclesiastical 
 polity, are the parsons and vicars of churches. In treating of whom it will be necessary to 
 mark out the distinction between them ; to observe the method by which one may become 
 a parson or vicar; briefly notice their rights and duties; and lastly, show how one may cease 
 to be either. § 
 
 A paison, persona ecclesicb, is one that has full possession of all the rights of a parochial 
 church. He is culled parson, persona, because by his person the church is represented; and 
 he is himself a corporation sole, in order to defend and protect the rights of the church whicli 
 he personates by a perpetual succession. He is sometimes called the rector or governor of 
 the church; but the appellation of parson (however it may be depreciated by familiar, 
 clownish, and indiscriminate use) is the most legal, and most honourable title that a parish 
 priest can enjoy; because, says bir Edward Coke, such a one, and he only, is said, mcem seu 
 fsrsonam ecclesiee gerere. A parson has during his life the freehold in himself of the 
 parsonage house, the glebe, the tithes, and other dues. But these are sometimes approjrrinted; 
 that is to say, the benefice is perpetually annexed to some spiritual corporation, either sole 
 or aggregate, being the patron of the living, which the law esteems equally capable of 
 providing for the service of the church as any single private gentleman. This contrivance 
 seems to have sprung from the policy of the monastic orders, who have never been deficient 
 
 * Rums' Eccl. Law. f Ibid. 
 
 § Rlackstone's Commentary, Christian's Edition. 
 
THE CLERGY. fil9 
 
 io subtile inventions for the increase of their own power and emoluments. At the first 
 establishment of pai^ochial clergy, the tithes were distributed between the bishop and the 
 incumbent. But when tlie bishops' sees became otherwise endowed, the bishops were 
 prohibited from demanding their usual share of the tithes, and hence it was inferred by the 
 monasteries, that a small part was sufficient for the officiating priest, and that the principal 
 part of the tithes should be appropriated to the use of their fraternities, subject to the burden 
 of repairing the church and providing for its constant supply ; the endowment of which 
 was construed to be a work of the most exalted piety. And therefore they begged, and 
 bought for masses and obits and sometimes for money, all the advowsons within their 
 reach, and then appropriated the benefices to the use of their own corporations. But it was 
 necessary, in order to complete such appropriation effectually, to obtain the king's license 
 and the bishop's consent \ because some time or other either the king or the bishop might 
 have an interest by lapse in the presentation to the benefice, which can never happen if it 
 be appropriated to the use of a corporation, which never dies ; and also because the law 
 reposes a confidence in them, that they will not consent to anything prejudicial to the interests 
 of the church. The patron's consent is also necessarily implied; because, as wjis before 
 observed, appropriation can be originally made to none, but to such spiritual corporation 
 as is also the patron of the church. The whole being indeed nothing else, but an allowance 
 for the patrons to retain the tithes and glebe in their own hands, without presenting any 
 clerk, they themselves undertaking to provide for the church. AVhen the appropriation is 
 thus made, the appropriators and their successoj-s are perpetual parsons of the church, and 
 must sue and be sued, in all matters concerning the rights of the church, by the name of 
 parsons. 
 
 This appropi'iation may be severed, and the church become disappropriate, two ways : as 
 first, if the patron or appropriator presents a clerk, who is instituted or inducted to the 
 parsonage ; for the incumbent to be instituted and inducted, is to all intents and purposes a 
 complete parson ; and the appropriation, being once severed, can never again be reunited, 
 unless by a repetition of the same solemnities. And when the clerk so presented is distinct 
 from the vicar, the rectory, thus vested in him, becomes what is called a sinecure; because 
 he has no cure of souls, having a vicar under him to whom that cure is committed. Pro- 
 fessor Christian is of opinion, that the appropriator cannot create a sinecure rector. But if 
 he should either by design or mistake present his clerk to the parsonage, it is held that the 
 vicarage will ever afterwards be dissolved, and the incumhent will be entitled to all the tithes 
 and dues of the church as rector. Wherever a rector and vicar are presented and instituted 
 to the same benefice, the rector is excused all duty, and has what is properly called a sinecure. 
 But where there is only one incumbent, the benefice is not in law a sinecure, though there 
 should be neither a church nor any inhabitants within the parish. Also if the corporation 
 which has the.appropriation is dissolved, the parsonage becomes disappropriate at common 
 law, because the perpetuity of person is gone, which is necessary to support the appropriation. 
 
 In this manner were most, if not all of the appropriations at present existing, originally 
 made ; being annexed to bishoprics, prebends, religious houses, nay even to nunneries and 
 certain military orders, all of which were spiritual corporations. And although, subject to 
 the same conditions, appropriations may be made at the present day, ) et it surely may be 
 questioned whether such a power any longer exists. It cannot be supposed that at this day, 
 the inhabitiints of a parish, who had been accustomed to pay their tithes to their officiating 
 minister, could be compelled to transfer them to an ecclesiastical corporation, to which 
 they might perhaps be perfect strangers. Appropriations are said to have originated from 
 an opinion eagerly inculcated by the monks, that tithes and oblations, though payable 
 to some church, yet were an arbitrary donation, which might be given, as a reward for 
 religious services to any person from whom he received those services. Till the monks 
 got complete possession of the revenues of the church, they spared no pains to recom- 
 mend themselves as the most deserving objects of the gratitude and benefaction of the 
 parish.* There probably have been no new appropriations, since the dissolution of the 
 
 * Burnsi' Iscc, Law. 
 
630 tHE CLERGY. 
 
 monasteries by Henry VI II.* At which time the appropriations of the several parsonages 
 which belonged to those respective religious houses (amounting to more than one-third of 
 all the parishes in England) would have been by the rules of the common law disappro- 
 priated, had not a clause in these statutes intervened to give them to the king in as ample a 
 manner as the abbots, &c., formerly held the same at the time of their dissolution. Although 
 this was far from being defensible, it was not without a precedent. The same thing was 
 done in former reigns, when the alien priories, that is, such as were filled by foreigners only, 
 were dissolved and given to the crown. From these two roots have sprung all the lay appro- 
 priations of secular parsonages which we now see in the kingdom. Having been granted 
 out after the Reformation by the crown; and Sir Henry Spelman says, " these are now 
 called impropriations, as being improperly in the hands of laymen." 
 
 These appropriating corporations, or religious houses, were wont to depute one of their 
 own body to perform divine service, and administer the sacraments, in those parishes in 
 which the society or corporation was the parson. This officiating minister was in reality no 
 more than a curate, deputy, or vicegerent of the appropriator, and therefore was called 
 vicarius or vicar. His stipend was at the discretion of the appropriator, who was however 
 bound of common right to find somebody to be responsible to him for the temporalities, and 
 to the bishop for the spiritualities, f But this was done in so scandalous a manner, and the 
 parishes suffered so much by the appropriators' (that is the monks') neglect, that the legis- 
 lature was forced to interpose. Accordingly it was enacted,* that in all appropriations 
 of churches, the diocesan bishop shall ordain (in proportion to the value of the church) a 
 competent sum to be distributed among the poor parishioners annually ; and that the vicarage 
 shall be sufficiently endowed. It seems the parishes were frequently sufferers, not only by 
 the want of divine service, but also by withholding those alms which had formerly been col- 
 lected for the poor ; and therefore in this act a pension is directed to be distributed among 
 the poor parocJhians, as well as a sufficient stipend to the vicar. But being liable to removal 
 at the pleasure of the appropriator, he was not likely to insist too rigidly on the legal suffi- 
 ciency of the stipend; and therefore by a later statute§ it is ordained, that the vicar shall 
 be a secular person, not a member of any religious house; that he shall be viciir perpetual, 
 and not removable at the caprice of the monastery ; that he shall be canonically instituted and 
 inducted, and be sufficiently endowed, at the discretion of the bishop for these three express 
 purposes : " to do divine service, to teach the people, and to keep hospitality." The endow- 
 ments in consequence of these statutes, have usually been by a portion of the glebe or land 
 belonging to the parsonage, and a particular share of the tithes which the appropi'iators found 
 it most troublesome to collect, and which are therefore generally called privy or small tithes, the 
 greater or praedial tithes being still reserved to their own use. || But one and the same rule 
 was not observed in the endowment of all vicarages : hence some are more liberally, and 
 some more scantily endowed ; and hence the tithes of many things, as wood in particular, 
 are in some parishes rectorial, and in others are vicarial tithes. 
 
 From this act we may date the establishment of vicarages.^ Before this time the 
 vicar in general was nothing more than a temporary curate, and when the church was 
 appropriated to a monastery, he was generally one of their own body, that is, one of the 
 regular clergy. The monks, who lived secundum regulas, that is, according to the rules 
 of their respective houses or societies, were denominated regular clergy, in contradistinction 
 to the parochial clergy, who performed their ministry in the world, in seculo, and who from 
 thence were called secular clergy. All the tithes or dues of the church, of right belonged to 
 the rector, or to the appropriator or impropriator, who have the same rights as the rector ; 
 and the vicar is only entitled to that portion which is expressed in his endowment, or what 
 his predecessors have enjoyed by immemorial prescription, which is equivalent to a grant 
 or endowment. And where there is an endowment, he may in general recover all that is 
 contained in it; and he may still retain what he and his predecessors have enjoyed by pre- 
 scription, though not expressed in it ; for such a prescription amounts to evidence of another 
 
 * 27 and .31 Henry VIII. f Selden on Tithes. X 15 Richard II., c. 6, 
 
 § Henry IV., c. 1. || See article Tithes. ^ Henry IV. 
 
THE CLERGY. 621 
 
 consistent endowment. Lord Eldon has declared, that if a vicar enjoys property not men- 
 tioned in an endowment, and has never within the time of memory possessed what is expressly 
 contained in it, a jury might presume that he had the former in lieu of the latter. These 
 endowments frequently invest the vicar with some part of the great tithes; therefore the 
 words rectorial and vicarial tithes have no definite signification. But great and small tithes 
 are technical terms, and which are, or ought to be, accurately defined and distinguished by 
 the law. 
 
 The distinction, therefore, of a parson and a vicar is this. The parson has, for the most 
 part, the whole right to all the ecclesiastical dues in his parish ; but a vicar has generally an 
 appropriator over him, entitled to the best part of the profits, to whom he is in efl'ect perpetual 
 curate, with a standing salary. At the dissolution of the monasteries, all these appropriations 
 were transferred to the crown, and were by the king granted out to different families, and 
 are now called impropriations. In some appropriated churches, no perpetual vicar has 
 ever been endowed ; in which case the officiating minister is appointed by the appropriator 
 and is called a perpetual curate. In some places the vicarage has been considerably 
 augmented by a large share of the praedial tithes, and was greatly assisted by the statute 29 
 Charles II., enacted in favour of poor vicars and curates, which rendered such temporary 
 augmentations as were made by the appropriators perpetual. 
 
 The method of becoming a parson or vicar is much the same. To both four requisites 
 are equally necessary : holy orders, presentation, institution, and induction.* By common 
 law, a deacon of any age might be instituted and inducted to a parsonage or vicarage. 
 It was ordained in the reign of Elizabeth, that no person under twenty-three years of age, 
 and in deacon's orders, should be presented to any benefice with cure; and if he were 
 not ordained priest within one year after his induction, he should he ipso facto deprived. 
 Now by statutef no person is capable of being admitted to any benefice, unless he has been 
 first ordained a priest, and then in the language of the law he is a clerk in Qrders •, and he 
 cannot take the order of priesthood till he be full four and twenty years of age. But if he 
 obtain orders, by money or corrupt practices, (which seems to be the true, though not the 
 common notion of simony,) the person giving such orders forfeits L.40, and the person 
 receiving, L.lO, and is incapable of any ecclesiastical preferment for seven years afterwards. 
 
 Any clerk may be presented to a parsonage or vicarage, so ma}' also a layman, but he must 
 take priest's orders before his admission :| that is, the patron, to whom the advowson of the 
 church belongs, may offer his clerk to the bishop of the diocese to be instituted. But when a 
 clerk is presented, the bishop may refuse him on many accounts: as, 1. If the pation is ex- 
 communicated, and remains in contempt forty days. Or, 2. if the clerk be unfit, which un- 
 fitness is of several kinds. First, with regard to his person ; as if he be a bastard, an outlaw, 
 an excommunicate, an alien, under age, and the like. Next with regard to his faith or 
 morals; as for any particular heresy, or vice that is malum in se. If the bishop alleges 
 only in generals, as that he is an inveterate schismatic, or objects a fault that is malum pro- 
 hibitum merely, as haunting taverns, playing at unlawful games, or the like ; it is not good 
 cause of refusal. Or, lastly, the clerk may be unfit to discharge the pastoral ofiice for want 
 of learning. In any of which cases the bishop may refuse the clerk. In case the refusal is 
 for heresy, schism, inability of learning, or other matter of ecclesiastical cognizance, then 
 the bishop must give notice to the patron of such cause of refusal, who, being usually a lay- 
 man, is not supposed to have knowledge of it, else he cannot present by lapse ; but if the 
 cause be temporal, then he is not bound to give notice. 
 
 If a patron brings an action at law against the bishop for refusing his clerk, the bishop 
 must assign the cause. If the cause be of a temporal nature, and the fact admitted, the 
 judges of the king's court must determine its validity, or whether it be a sufficient cause of 
 refusal ; but if the fact be denied, it must be determined by a jury. If the cause be of a 
 spiritual nature, (as heresy,) the fact, if denied, shall also be determined by a jury. If 
 the fact be admitted or found, the court upon consultation and advice of learned divines shall 
 
 * Sec Alt. United Church of England and Ireland, post. 
 
 t 13 and 11 Charics U., c. 4. j Burns' Ecc. Law. 
 
622 THE CLERGY. 
 
 decide Its sufficiency. If the cause be want of learning, the bishop need not specify in what 
 points the clerk is deficient, but only allege that he is deficient, because the examination of 
 the fitness of a person presented to a benefice belongs to the ecclesiastical judge. But because 
 it would be nugatory in this case to demand the reason of refusal from the ordinary, if the 
 patron were bound to abide by his determination, who has already pronounced his clerk to 
 be unfit; therefore if the bishop returns the clerk as deficient in literature, the court shall 
 write to the metropolitan to re-examine him, and certify his qualifications; and the arch- 
 bishop's certificate is final. 
 
 If the bishop makes no objections, but admits the patron's presentation, the clerk so 
 admitted, is next to be instituted, which is a kind of investiture of the spiritual part of the 
 benefice; for by institution, the care of the souls of the parish is committed to the clerk's 
 charge. At his institution, the vicar, if required by the bishop, took an oath of perpetual 
 residence ; but this is not now required. When the bishop is also the patron, and confers 
 the living, the presentation and institution are one and tlie same act, and are called a colla- 
 tion to a benefice. By institution or collation the church is full, so that there can be no fresh 
 presentation till a new vacancy, at least in the case of a common patron; but the church is 
 not full against the king till induction. Nay, even if a clerk is instituted upon the king's 
 presentation, the crown may revoke it before induction, and present another clerk. Upon 
 institution also, the clerk may enter on the parsonage house and glebe, and take the tithes ; 
 but he cannot grant or let them, or bring an action for them, till after induction. And 
 when a clerk is presented, instituted, and inducted into a rectorj', he is then, and not before, 
 in full and complete possession, and is called in l^w persona im]^rsonala, or parson imparsonee. 
 
 A parson or vicar's right to the tithes and ecclesiastical dues, will be described under the 
 head of tithes. The duties laid on him by statute are so numerous, that they cannot be 
 recited here. I shall only mention the article of residence, on the supposition of which 
 the law styles every parochial minister an incumbent A clergyman willingly absenting 
 himself from his benefice for one month together, or for two montlis in the year, incurs a 
 penalty of five pounds: ill health, or inevitable absence, is however an exception to the 
 penalties. The bishop, in his court, may compel the residence of all clergy who liave 
 the cure of souls within his diocese. This extends to all archdeaconries, deaneries, and 
 dignities in cathedral and collegiate churches. Those who. have two benefices or dignities, 
 upon each of which residence is required, must reside upon one or the other. Chaplains 
 to the king or others, are however exempted during their attendance in the household ; and 
 also all heads of houses, magistrates, and professors in the universities, and all students under 
 thirty years of age, residing there bona fide for studj'. The king can give a license to his 
 chaplains for nonresidence, even whilst they do not attend his household ; but noblemen's 
 chaplains are only excused during their actual attendance on their lords or ladies. Legal 
 residence is not only in the parish, but also in the parsonage house, if there be one ; for it 
 has been resolved that residence is intended not only for serving the cure and for hospitality, 
 but also for maintaining the house, that the successor may also keep hospitality there. And 
 if there be no parsonage house, then the incumbent is bound to hire one, in the same or some 
 neighbouring parish. An act of parliament* provides for raising money on ecclesiastiad 
 benefices, to be paid off annually by decreasing instalments, and to be expended in rebuilding 
 or repairing the houses belonging to such benefices. This act enables the incumbent, when 
 there is no parsonage house, or where it is so ruinous as not to be repaired with one year's 
 income of the living, to borrow, with the consent of the patron and bishop, upon mortgage 
 of the living, a sum not exceeding two years' clear value, to be laid out in repairs, building, 
 or the purchase of a house. 
 
 We have seen that there is but one way of becoming a parson or vicar; but there are 
 many ways of ceasing to be one. 1. By death. 2. By cession, in taking another benefice ; 
 for by statute* if any one having a benefice of L.8 per annum, or upwards, according to the 
 present valuation in the king's books, accepts any other, the first shall be adjudged void, 
 unless he ol)tains ,'i dispensation, which none is entitled to have but the king's chaplain, and 
 
 * 17 Geo. 111., c. 53. 
 
THE CLERGY. 823 
 
 others therein mentioned, lliu brethren and sons of lords and knights, and doctors and 
 i).u;heIor8 of divinity and law admitted by tlie universities ; and a vacancy thus mode for 
 want cf a tlispcnsation is willed a cession. In the case of a cession under the statute, the 
 (;hurch is so far void upon institution to the second living, that the patron may take notico 
 of it, and present if he pletises; but there is great reason to think, that lapse will not incur 
 from the time of institution against the patron, unless notice be given him ; but lapse will 
 Incur from the time of induclion without notice, 3. By consecration ; for, as wjis before 
 mentioned, when a clerk is promoted to a bishopric, all his other preferments are void from 
 the moment of his consecration. But there is a method by the favour of the crown, of 
 holding sucli living in commendam. Commcrula^ or ecclesia commendalu, is a living com- 
 nunided by the crown to the care of a clerk, to hold till a proper pastor is provided for it. 
 'I'liis ma}' bo temporary, for one, two, or three years, or perpetual ; being a kind of disptn- 
 Kition to avoid the vaccincy of the living, and is called a commenda rctinere. These com- 
 mendams arc now seldom or never granted to any but bishops, and In that case the bishop 
 is made commendatory of the IjenefKX', while he continues bishop of such a diocese only, as 
 the object is to make it an addition to a small bishopric. It would be unreasonable to 
 grant it to a bishop for his life, who might afterwards be translated to one of the richest 
 sees. There is also a commenda rccipere, which is to take a benefice de novo, in the bishop's 
 own gift, or the gift of some other patron consenting to the same; and this is the same to 
 him as institution and ijuludion are to another clergyman. 4. By resignation. This is 
 of no avail, till accepted by the bishop, into whose hands the resignation must be made. 
 But it seems to be clear, that the bishop may refuse to Jiccept a resignation, upon a sufficient 
 cjiuse for his refusal. Whether he can, merely at his will and pleasure, refuse to awept 
 a resignation, without any «iuse, and who shall finally judge of the sufficiency of the cause, 
 and l)y what mode he may be cximpelled to accept, arc questions undecided. 5. By depri- 
 vation. Either, first, by sentence jhjclaratory in the ecclesiastical court, for fit and sufficient 
 cjiuses allowed by the common law ; such us attainder of treason or felony, or conviction of 
 other infamous crimes in the king's courts : for heresy, infidelity, gross immonility, and such 
 like. Or, secondly, in pursuance of divera penal statutes, which declare the benefice void; 
 for some nonfeasance or neglect, or else some malfeasjince or crime; as, for simony, for 
 maintaining any do<;trine derogatory of the king's supremacy, or of the thirtj-m'ne articles, 
 or of the book of common praycjr. For neglecting after institution to read the liturgy and 
 articles in the church, or to make the declarations against popery, or Uike the abjuration oath. 
 For using any other form of prayer than the liturgy of the church of England; or for 
 absenting himself sixty days in one year from a benefice belonging to a popish patron, to 
 which the clerk was presented by either of the universities. In all which and similar cases, 
 the benefice is ipso facto void, without any formal sentence of deprivation. 
 
 VI, A curate, though in full priest's orders, is the lowest degree in the church. He is 
 in the same state that a vi(^r formerly was, an ofTiciating temporary minister, instead of 
 the proper incumbent. There are also what are Killed perpeliiat curacies, where all the 
 tithes are appropriated, and no vicfiragc endowed, but instead the perpetual curate is ap- 
 pointed by the appropriator. With regard to the other species of curates, they are the 
 objects of some particular stJitutes, which ordain, that such as serve a church during its 
 vacancy, shall be i)aid such stipend .'is the bishop thinks reasonable, out of the profits of the 
 v.'iamcy. If that be not sufiicicnt, by the successor, within fourteen days after he tiikes 
 possession. Likewise, if any rector or vicxir nominates a curate to the bishop for license to 
 serve the cure in his absence, the bishop shall settle his stipend under his hand and seal, 
 not exceeding L.50 per annum, nor less than L.20; and on failure of paj ment may sequester 
 the profits of the benefice. 
 
 The act of George III. has made such considerable alterations in the law respecting 
 curates, that it may be proper to repeat some of its provisions. 
 
 When any person becomes incumbent of a benefice, and does not reside upon it, (unless 
 he has a legal exemption from residence, or a license to reside out of the parish, or the houae 
 
 • 21 Henry VIII. 
 
624 THE CLERGY. 
 
 of residence), the bishop shall appoint a salary to the licensed curate, not less than L.80 per 
 annum, or the annual value ot the benefice, if the gross value does not amount to that sum ; 
 nor less than L.lOO per annum, or the whole value, if the gross value does not amount to 
 L.lOO per annum, and the population amounts to or exceeds 300 ; nor less than L 120 per 
 annum, or the whole value where the gross value does not amount to L.120 per annum, and 
 the population amounts to or exceeds 500; nor less than L.150 per annum, or the whol ' 
 value as above, if it does not amount to L.159 per annum, and the population amounts to or 
 exceeds 1000. Where the actual annual value of any benefice exceeds L.400, the bishop 
 may assign L.lOO per annum to Ihe curate, though the population do not amount to 300; 
 and where the income exceeds L.400, and the population does not amount to, or exceed 500, 
 a farther provision of L.50 per annum. In all cases of nonresidence from sickness, age, or 
 other unavoidable causes, the bishop may fix smaller salaries at his discretion. The salar\ 
 of a curate who serves interchangeably with his incumbent at different benefices belonging 
 to the same incumbent, shall not exceed that allowed under the act for the largest of these 
 benefices, nor be less for that of the smallest. All contracts between incumbents and curates 
 in fraud or derogation of this act are void ab initio. Where the curate's salary is equal to 
 the gross value of the benefice, it is to be subject to all deductions, for charges and outgoings 
 legally affecting it, and to any loss or diminution of it not arising from default of the incum- 
 bent. And in all such cases the incumbent may deduct any sum expended in repairing the 
 chancel, or house of residence with its appurtenances, and not exceeding one- fourth of the 
 salary. When the incumbent is nonresident for four months in the year, the bishop may 
 allot the house of residence to the curate during the time he shall serve the cure, or during 
 the incumbent's nonresidence. Or if the curate be assigned a siilary not less than the gross 
 annual value of the benefice, and lives in the house of residence, he shall then pay all the 
 taxes and parish assessments of the house during his residence. On three months' notice 
 from the bishop, the curate must deliver up possession of the house of residence to the 
 incumbent, under a penalty of 405, for each day of wrongful possession ; and in the event of 
 a vacancy, he is to quit the same within three months after the appointment of the new 
 incumbent, on his requiring him so to do, with one month's notice to quit. Lastly, when- 
 ever the ecclesiastical duties of a benefice are inadequately performed, or the incumbent 
 neglects to appoint a curate during his nonresidence, the bishop is empowered to license and 
 appoint a curate with a salar}'. 
 
 VII. Churchwardens are the guardians or keepers of the church, and representatives of 
 the body of the parish. They are sometimes appointed by the minister, sometimes by the 
 parish, and sometimes by both together, as custom directs. They are taken, in favour of 
 the church, to be for some purposes a kind of corporation at the common law ; that is, they 
 nre enabled by that name to have a property in goods and chattels, and to bring actions for 
 them, for the use and profit of the parish. Yet they may not waste the church goods, but 
 may be removed by the parish, and then called to account by action at common laAv ; but 
 there is no method of calling them to account, but by first removing them ; for none but 
 their successors can legally do it. As to lands or other real property, as the cliurch, church- 
 yard, &c,, they have no sort of interest therein : but if any damage is done thereto, the 
 parson only or vicar shall have the action. Their office also is to repair the church, and 
 make rates and levies for that purpose ; but these are recoverable only in the ecclesiastical 
 court. They are also joined with the overseers in the care and maintenance of the poor. 
 They are to levy a shilling forfeiture on all such as do not repair to church on Sundays and 
 holydays ; and are empowered to keep all persons orderly while there. To which end it has 
 been held, that a churchwarden may justify the pulling off' a man's hat, Avithout being 
 guilty of either an assault or trespass. There are also a multitude of other petty parochial 
 powers committed to their charge by several acts of parliament. 
 
 Parish clerks and sextons are also regarded by the common law as persons who have 
 freeholds in their offices ; and therefore, though they may be punished, yet they cannot be 
 deprived, by ecclesiastical censures. Formerly the parish clerk was frequently in holy 
 orders, and some are so to this day. He is generally appointed by the incumbent, but by 
 custom may be chosen by the inhabitants; and if such custom appears, the court of king's 
 
RELATIONS IN PRIVATE LIFE. 625 
 
 bench will grant a mandamus to the archdeacon to swear him in, for the establishment of 
 the custom turns it into a temporal or civil right.* 
 
 RELATIONS IN PRIVATE LIFE. 
 
 The principal relations in private life consist of, I. Husband and wife; 
 II. Parent and child; III. Guardian and ward; IV. Master and servant. 
 
 I. Husband and wife. — That the holy estate of matrimony wat 
 instituted by God himself, is evident from the two first chapters in the 
 Bible. Man was created on the sixth day in the image of God ; or as the 
 apostle explains these words, in " righteousness and true holiness,"f ant! 
 " renewed in knowledge, after the image of him that created him.''t 
 Immediately after the creation, and as it would appear, on the same day, 
 God who alone could confer it, gave him dominion over every living 
 creature, and over all the earth, commanding him to subdue it, and to 
 increase and multiply in it. But for Adam there was not a help, meet for 
 him. God took one of Adam's ribs and made of it a woman, which is an 
 evident token of her natural dependance and subjection to him. Her 
 Creator brought her unto Adam, a just precedent for the universal 
 practice of the woman's father or nearest of kin giving her away. It is 
 also another symptom of her natural inferii)rity. On this occasion Adam 
 exercised his right of sovereignty, by naming her both Eve and woman^ 
 because she was bone of his bone, and flesh of his flesh. In virtue of his 
 universal dominion and sovereignty, he enacted that statute, which has 
 ever since been recognized and obeyed in all countries both civilized and 
 barbarous : " Therefore shall a man leave his father and his mother, and 
 shall cleave unto his wife, and they shall be one flesh."^ This statute was 
 confirmed by our blessed Lord, repeating the identical words.]! After the 
 unfortunate transaction between Eve and the serpent, the Almighty again 
 renewed Adam's charter. " Unto the woman he said, I will greatly 
 multiply thy sorrow and thy conception : in sorrow thou shalt bring forth 
 children, and thy desire shall be to thy husband, and he shall rule over 
 thee."" This divine institution has accordingly been observed in every 
 country, and in every country there has been some religious way of entering 
 into this holy estate. The church of Scotland acknowledges that " mar- 
 riage was ordained for the mutual help of husband and wife; for the 
 increase of mankind with a legitimate issue, and of the church with an 
 holy seed ; and for preventing of uncleanness."^ And the church of 
 
 * Blackstone's Commentaries, with Professor Christian's Notes. — Burns' Ecclesiastical 
 Law. — Gibson's Codex. — Tomline's Law Diet. — Bell's ditto, 
 
 f Eph. iv. 24. t Col. iii. 10. § Gen. ii. 24. 1| Matth. xix. 5. Mark x. 7. 
 ^ Confession of Faith, xxiv. sec. 2. Eph. v. 31, 
 
 4 K 
 
*2* RELATIONS IN PRIVATE LIFE. 
 
 England says it " is an honourable estate, instituted of God in the time of 
 man's innocency, signifying unto us the mystical union that is betwixt 
 Christ and his church : which holy estate Christ adorned and beautified 
 with his presence and first miracle that he wrought in Cana of Galilee; 
 and is commended of St Paul to be honourable among all menj and 
 therefore is not by any to be enterprised, nor taken in hand, unadvisedly, 
 lightly, or wantonly, to satisfy men's carnal lusts and appetites, like brute 
 beasts that have no understanding; but reverently, discreetly, advisedly, 
 soberly, and in the fear of God ; duly considering the causes for which 
 matrimony was ordained. First, It was ordained for the procreation of 
 children, to be brought up in the fear and nurture of the Lord, and to 
 the praise of his holy name. Secondly, It was ordained for a remedy 
 against sin, and to avoid fornication; that such persons as have not the 
 gift of continency might marry, and keep themselves undefiled members of 
 Christ's body. Tliirdly, It was ordained for the mutual society, help, 
 and comfort, that the one ought to have of the other, both in prosperity 
 and adversity.* " Marriage," says the apostle, " is honourable in all, 
 and the bed undefiled; but whoremongers and adulterers God will jodge.^f 
 Eve received her life from Adam, as the church did from Christ. She 
 was taken out of Adam's side when he was in a deep sleep. After 
 Christ was dead, the sacraments of water and Mood flowed out of his 
 side, that is, baptism, whereby we are born again unto Christ, and the 
 sacrament of his blood, whereby we are nourished unto eternal life. 
 ** What therefore God hath joined together, let not man put asunder/':| 
 " Nevertheless, to avoid fornication, let every man have his own wife, 
 and let every woman have her own husband. Let the husband render 
 unto the wife due benevolence ; and likewise also the wife unto the hus- 
 band. The wife hath not power of her own body, but the husband : 
 and likewise also the husband hath not power of his own body, but the 
 wife."«^ *' And unto the married I command, yet not I, but the Lord, 
 let not the wife depart from her husband ; but, and if she depart, 
 let her remain unmarried, or be reconciled to her husband : and let not 
 the husband put away his wife. But to the rest speak I, not the Lord : 
 if any brother hath a wife that believeth not, and she be pleased to dwell 
 with him, let him not put her away. And the woman that hath an 
 husband that believeth not, and if he be pleased to dwell with her, let her not 
 leave him. For the unbelieving husband is sanctified by the wife, and the 
 unbelieving wife is sanctified by the husband, else were your children 
 unclean : but now are they holy. But if the unbelieving depart, let him 
 depart. A brother or a sister is not under bondage in such cases : but 
 
 * The Form of Solemnization of Marriage, Book of Common Prayer. 
 
 \ Heb. xiii. 4. \ Mark x. 9. \ 1 Cor. Vii. 2—4. 
 
RELATIONS IN PRIVATE LIFE. fiSl 
 
 God hath called us to peace. For what knowest thou, O wife, whether 
 thou shalt save thy husband, or how knowest thou, O man, whether thou 
 shalt save thy wife."* " Wives submit yourselves unto your own husbands, 
 as unto the Lord. For the husband is the head of the wife, even as Christ 
 is the head of the church, and he is the Saviour of the body. Therefore 
 as the church is subject unto Christ, so let the wives be to their own 
 husbands in everything. Husbands love your wives, even as Christ also 
 loved the church, and gave himself for it; that he might sanctify and cleanse 
 it with the washing of water by the word ; that he might present it unto 
 himself a glorious church, not having spot, or wrinkle, or any such thing; 
 but that it should be holy, and without blemish. So ought men to love 
 their wives as their own bodies : he that loveth his wife loveth himself. 
 For no man ever yet hated his own flesh; but nourisheth and cherisheth 
 it, even as the Lord the church : for we are members of his body, of his 
 flesh, and of his bones. For this cause shall a man leave his father and 
 mother, and shall be joined unto his wife, and they two shall be one flesh. 
 This is a great mystery : but I speak concerning Christ and the church. 
 Nevertheless, let every one of you in particular so love his wife even as 
 himself; and the wife see that she reverence her husband."f " The wife 
 is bound by the law as long as her husband liveth; but if her husband be 
 dead, she is at liberty to be married to whom she will; only in the Lord. 
 But she is happier if she so abide, after my judgment : and I think also 
 that I have the Spirit of God."t 
 
 In what follows, I shall in the first place inquire how marriage may be 
 contracted or made ; and shall next point out the manner in which it 
 may be dissolved; and, lastly, shall take a view of the legal eff^ects and 
 consequences of marriage. 
 
 I. Our law considers marriage in no other ligh-t than as a civil contract. 
 The holiness of the matrimonial state is left entirely to the ecclesiastical 
 law. And taking it in this civil light, the law treats it as it does all other 
 contracts. It allows it to be good and valid in all cases, where the parties, 
 at the time of making it, were, in the first place, willing to contract; 
 secondly, able to contract; and lastly, actually did contract, in the proper 
 forms and solemnities required by law. 
 
 All persons in general are able to contract themselves in marriage, unless 
 they labour under some particular disabilities and incapacities. And 
 what those are, 1 shall now point out. 
 
 These disabilities are of two sorts: first, such as are canonical, and 
 therefore sufficient by the ecclesiastical laws to avoid the marriage in the 
 spiritual court ; but in law these only make the marriage voidable, and 
 
 * 1 Cor. vii. 10—16. + Eph. v. 22—33. t 1 Cor. vii. 39, 40. 
 
628 
 
 RELATIONS IN PRIVATE LIFE. 
 
 not ipso facto Toid, until sentence of nullity be pronounced. In order to 
 <a regular marriage in England, the banns must first be published during 
 divine service by the minister of the parish or parishes where the parties 
 dwell. Whoever has any objection against a marriage must make appli- 
 cation to the bishop, who, if he see cause, may send an inliibitioii to the 
 parish minister, forbidding him to proceed. But if no such inhibition be 
 sent, the minister may marry them at any lawful time or place. At the 
 time of marriage, however, when the minister pronounces these words : 
 *' If any one know any just cause or impediment why these parties should 
 not be joined together in holy matrimony, ye are to declare, or else for ever 
 hold your peace." Then the rubric directs, that if any one " declare any 
 objection or impediment, and give security to the persons to be married, 
 to the full damages they will sustain by not being married, that he shall 
 prove his allegation," &c, then the marriage shall be deferred till the 
 cause be determined, or the parties agreed. 
 
 Lawful impediments are three. 1. Precontract, when one or both 
 parties are before married, or are pre-engaged to another person by a 
 solemn mutual promise made in the presence of witnesses, and a suit is 
 hereupon commenced in some ecclesiastical court. If satisfactorily proved, 
 precontract dissolves marriage with any other person, even though it may 
 have been consummated; by statute 2 Edw. VI. 2. Affinity or con- 
 sanguinity. To know who are too near of kin to marry together, the 
 following table of degrees, set forth by authority in 1563, will sufficiently 
 <lemonstrate. 
 
 A TABLE of KINDRED and ArFiNiTY, wherein whosoever are related are forbidden in 
 Scripture, and by our Laws, to marry together. 
 
 A Man may not marry his 
 
 1 Grand mo I her. 
 
 2 Grmdfather s Wife. 
 
 3 Wife's Grandmother. 
 
 4 Father's Sisttr. 
 
 5 Mother's Sister. 
 
 6 Father's Brother's Wife. 
 
 7 Mother's Brother's Wife. 
 
 8 Wife's Father's Sister. 
 
 9 Wife's Mother's Sister. 
 
 10 Mother. 
 
 11 Stepmother. 
 
 12 Wife's Mother. 
 
 13 Daughter. 
 
 14 Wife's Daughter. 
 
 15 Son's Wife. 
 
 16 Sister. 
 
 17 Wife's Sister. 
 
 18 Brother's Wife. 
 
 19 Son's Daughter. 
 
 A Woma7i viay not marry with her 
 
 1 Grandfather. 
 
 2 Grandmother's Husband. 
 
 3 Husband's Grandfather. 
 
 4 Father's Brother. 
 
 5 Mother's Brother. 
 
 6 Father's Sister's Husband. 
 
 7 Mother's Sister's Husband. 
 
 8 Husband's Father's Brother. 
 
 9 Husband's Mother's Brother. 
 
 10 Father. 
 
 11 Stepfather. 
 
 12 Husband's Father. 
 
 13 Son. 
 
 14 Husband's Son. 
 
 15 Daughter's Husband. 
 
 16 Brother. 
 
 17 Husband's Brother. 
 
 18 Sister's Husband. 
 
 19 Son's Son. 
 
RELATIONS IN PRIVATE LIFE. 629 
 
 A Man may not marry his 
 
 20 Daughter's Daughter. 
 
 21 Son's Son's Wife. 
 
 22 Daughter's Son's Wife. 
 
 23 Wife's Son's Daughter. 
 
 24 Wife's Daughter's Daughter. 
 
 25 Brother's Daughter. 
 
 26 Sister's Daughter. 
 
 27 Brother's Son's Wife. 
 
 28 Sisters Son's Wife. 
 
 29 Wife's Brother's Daughter. 
 
 30 Wife's Sister's Daughter. 
 
 A Woraan may not marry willt 'ler 
 
 20 Daughter's Son. 
 
 21 Son's Daughter's Husband. 
 
 22 Daughter's Daughter's Husband. 
 
 23 Husband's Son's Son. 
 
 24 Husband's Daughter's Son. 
 
 25 Brother's Son. 
 
 26 Sister's Son. 
 
 27 Brotner's Daughter's Husband 
 
 28 Sister's Daughter's Husband. 
 
 29 Husband's Brother's Son. 
 
 30 Husband's Sister's Son. 
 
 In the course of nature it is scarcely possible that any one should ever 
 marry his issue in the fourth deg^ree. Between collaterals, all who are in 
 the fourth, or any collateral degree, are permitted to marry. A husband 
 is related to all the consanguinet of his wife, and mce versa, the wife to 
 those of her husband. The husband and wife being considered as one 
 flesh, those who are related to the one by blood, are related to the other 
 by affinity.* Therefore; after his wife's death, a man cannot marry her 
 sister, aunt, or niece. But the relations by affinity of the husband are not 
 at all related to those of the wife. Two brothers therefore may marry two 
 sisters, or a father and son may marry a mother and her daughter. 
 
 3. Some particular corporeal infirmities, also, disable parties from mar- 
 riage. But such marriages not being void ah initio, but only voidable by 
 sentence of separation, they are esteemed valid to all civil purposes, unless 
 such separation is actually made during the life of tlie parties. For, after 
 the death of either of them, the courts of common law will not suffer the 
 spiritual courts to declare such marriages to have been void; because 
 such declaration cannot now tend to the reformation of the parties. 
 
 4. Another legal disability is want of age in either or both of the con- 
 tracting parties. This is sufficient to set aside all other contracts, on account 
 of the imbecility of judgment in the contracting parties; a fortiori, therefore 
 it ought to avoid this, the most important contract of any. 5. Want of 
 the consent of parents or guardians is also a legal incapacity, if either of 
 the parties be under twenty- one years of age. The church and the state 
 both combine to punish the clergyman who should marry, after banns 
 being published, any parties under that age, without having the express 
 consent of parents or guardians. By the sixty second canon of the church 
 of England, the bishop is authorized to suspend him from officiating for 
 three years. And by several acts of parliament, penalties of one hundred 
 pounds are laid on any clergyman who marries a couple either without 
 publication of banns, (which are intended to give notice to parents and 
 
 * Gibson's Codex. 
 
«30 RELATIONS IN PRIVATE LIFE. 
 
 guardians,) or witliout a license, to obtain which the consent of parents 
 or guardians must be sworn to. And by the statute 26 Geo. II. it is 
 enacted that all marriages celebrated by license, (for banns suppose notice,) 
 where either of the parties is under twenty-one, (and not being a widow 
 or widower, who are supposed to be emancipated from paternal control,) 
 without the father's consent, or, if he be not living, of the mother, or 
 guardian, shall be absolutely void. 
 
 5. Want of reason is a most powerful incapacity, for without a com- 
 petent share of it, as no other, so neither can the matrimonial contract 
 be valid, idiots or people without due reason being always considered 
 as minors, and therefore taken under the special protection of the law. 
 And it is provided by act of parliament, 15 Geo. II., that the marriage 
 of lunatics and persons under frenzies, (if declared lunatics under a com- 
 mission, or committed to the care of trustees by any act of parliament,) 
 before they are pronounced to be of sound mind by the lord chancellor or 
 the majority of such trustees, shall be totally void. Lastly, the parties 
 must not only be willing and able to contract, but must actually contract 
 themselves in due form of law, to make it a good civil marriage. In Eng- 
 land no marriage is at present valid, unless it be celebrated in some parish 
 church or public chapel, except a dispensation be procured from the arch- 
 bishop of Canterbury. It must also be preceded either by the publication 
 of the banns by the parish minister in the middle of the public service in the 
 forenoon, or by license from the spiritual judge. And it is also indispens- 
 able, that the marriage ceremony be performed by a person in holy orders. 
 " As the law now stands, therefore, we may upon the whole collect, that, 
 by the temporal law, no marriage is ipso facto void, that is celebrated by 
 a person in holy orders, — in a parish church or public chapel, or elsewhere 
 by a special dispensation, — in pursuance of banns or a license — between 
 single persons, — consenting, — of sound mind, — and of the age of twenty- 
 one years. And no marriage is voidable, that is, can be dissolved by the 
 ecclesiastical law, after the death of either of the parties; nor during their 
 lives, unless for the canonical impediments of precontract, (if that still 
 exists) — of consanguinity, or relation by blood — of affinity or relation by 
 marriage — or coporeal imbecility, if it subsisted previous to the marriage.* 
 
 The Confession of Faith of the church of Scotland, chap. xxiv. sec. 4, 
 says, " Marriage ought not to be within the degrees of consanguinity or 
 affinity forbidden in the word; nor can such incestuous marriages ever be 
 made lawful by any law of men, or consent of parties, so as those persons 
 may live together as man and wife. The man may not marry one of his 
 wife's kindred nearer in blood than he may of his own, nor the woman of 
 her husband's kindred nearer of blood than her own." 
 * Blackstone's Commentaries. 
 
RELATIONS IN PRIVATE LIFE. 631 
 
 Cousins-german are not forbid to marry by any law of God or man, 
 except the pope's canon law, which is happily not now in force as to this 
 particular, being for ever broken up by the 32 of Henry VIII. And if 
 cousins-german are not prohibited, then they who are more remotely 
 related cannot be under any restraint, notwithstanding that by the same 
 popish canon law, not only real relations were prohibited from contracting 
 marriage, but also imaginary ones. For instance, according to the 
 absurd canons of the papists, any man and woman that had stood as 
 sureties for the same child, or had at its baptism laid their hands on it, in 
 order to take it out of the font when it was dipped, if such were the 
 custom, were prohibited from marrying together. Nay, to such an extreme 
 did papists carry this absurdity, that the prohibition extended to the person 
 who baptized, to his sons and daughters, and to the father and mother of 
 the person who was baptized. For by popish casuistry it was pretended 
 that by this means a spiritual affinity was contracted. Very little regard 
 is to be paid to this popish law, and by none other is the marriage oi 
 cousins-german prohibited. It will be remembered in the interesting 
 story of Tobit, in the apocryphal part of the Bible, that the angel which 
 accompanied his son Tobias, said to him, " Brother, to-day we shall lodge 
 with Raguel, who is thy cousin : he also hath one only daughter, named 
 Sara. I will speak for her, that she may be given thee for a wife : for to 
 thee doth the right of her appertain, seeing thou only art of her kindred; 
 and the maid is fair and wise. Now, therefore, hear me, and I will speak 
 to her father; and when we return from Rages, we will celebrate the mar- 
 riage : for I know tliat Raguel cannot marry her unto another according 
 to the law of Moses,* but he shall be guilty of death, because the right of 
 inheritance doth rather appertain unto thee than to any other."f 
 
 Before any can be lawfully married in England, the banns are directed 
 to be published on three several Sundays. This care of the clmrch to 
 prevent clandestine marriages, is as old as Christianity itself. Tertullian 
 tells us, that in his time all marriages were accounted clandestine that 
 were not published beforehand in the church. The design of these banns 
 is, that the church may be satisfied that there is no lawful impediment 
 why the parties may not be joined together in matrimony. Some parish 
 officers have presumed to forbid banns, because the parties have been 
 poor, and therefore likely to create a charge to the parish ; or because 
 the man has not been an inhabitant, according to the laws made for the 
 settlement of the poor. But no person has authority to forbid the min- 
 ister to proceed in publishing the banns, but the bishop only. If indeed 
 the minister is satisfied that any of the before mentioned impediments 
 
 * Numb, xxvii. 8. xxxvi. f Tobit vi. 10, 11, \%. 
 
632 RELATIONS IN PRIVATE LIFE. 
 
 exist, he ought in reason to forbear publication. If he proceed, under 
 this knowledge, to marry the parties, he is liable to censure, if his know- 
 ledge of the impediment can be proved. But the minister is not at liberty 
 to stop his proceeding, because any captious or malicious person, without 
 just reason or authority, takes upon him to forbid him. Poverty is no 
 more an impediment to marriage than riches. The kingdom can no more 
 subsist without the poor than without the rich. And there can be no 
 reason to doubt, but that banns may be published, and marriage solemnized, 
 betwixt two persons that reside or sojourn within a parish, though they 
 be not fixed inhabitants. For sucli persons, though strangers to the rest 
 of the parish, are parishioners as to the minister ; who is to visit them if 
 they are sick, to give them the sacraments while living, and bury them 
 when dead. And on their part, they are to perform the duty of 
 parishioners to him ; that is, to pay tithes and ofiferings, if there are any 
 to be demanded. They are parishioners in all respects, except only, that 
 if they fall into poverty, they do not enjoy the benefits of the poor laws. 
 Neither does the law say, that any man is made liable to be kept by a 
 parish, because he was married in it by banns : nor does it appear that 
 these temporal laws, relating to the poor, were intended to alter the laws 
 of the church, which both by custom and canon has all along permitted 
 and required persons to have the banns published, and the marriage 
 celebrated, where the parties dwell, or arc commorant. And the rubric 
 before the ofliice of matrimony is to the same purpose: ** if they dwell in 
 diverse parishes," — " si incolunt in dwersis paroiciis^'' says the old Latin 
 translation; " si vwunt^'' says the new; but in publishing the banns, the 
 minister may cautiously say, " N of this parish sojourner.^'' 
 
 Some clergymen have been summoned and corrected in the spiritual 
 courts for solemnizing marriages in churches where the banns were not 
 asked, and to which the parties married did not belong as parishioners; 
 although they had a certificate of the banns being published, under the 
 hand of the minister or ministers to whose parishes they belonged. This 
 was forbid by ancient canons, as well as by the sixty-second canon of 
 the church of England. The license of the curate, however, to whose 
 parish the parties belonged, was sufficient; at same time the curate must 
 do more than certify the publication of banns; he must expressly, under 
 his hand, give the parties leave to be married in another parish church, 
 and also to the curate of that other church to marry them. And indeed, 
 by the constitution of archbishop Peckham, the curate of any parish may 
 license his parishioners to communicate in another parish church. 
 
 By both ancient and modern canons, it was well provided that marriages 
 should be celebrated in facie ecclesice, in the face of the church, that is, 
 in time of divine service ; but this practice is, as if by universal consent, 
 
RELATIONS IN PRIVATE LIFE. 633 
 
 laid aside. Yet in matrimonial cases tried before the consistory court, 
 the judge asks whether, during the time the marriage in question was 
 solemnized, the church doors were open. It was an ancient and very good 
 custom, and which still generally prevails in England, that marriages should 
 not be celebrated in any other church than that to which the woman belongs 
 as a parishioner; and therefore the ecclesiastical law allows a fee to the 
 clergyman of that church, whether she be married there or not. And this 
 fee was expressly reserved for him by the words of the license, according 
 to the old form; but it is said that this has been refused in the temporal 
 courts, because it is generally claimed by virtue of the canon law, which 
 is now abrogated; whereas, were it demanded as due by prescription, or 
 immemorial custom, within such a parish or diocese, it is reasonable to 
 suppose that the temporal courts would allow of this plea; for custom is 
 common law. 
 
 The canons of the church of England do not allow any marriages to be 
 celebrated in private houses, but only in the parish church, and that too 
 only between the hours of eight and twelve in the forenoon. In Scotland 
 marriages take place almost invariably in private houses, and at any hour 
 of the day. The church of England allows none but a lawful minister to 
 tie the bonds of matrimony. Because marriage is the bond and foundation 
 of all society, and it ought therefore to be made sacred, and adopted 
 into religion, it being the interest of mankind that it should be kept 
 inviolable. Above all, because God himself married the first man and 
 woman, and blessed them, and made a covenant with them; and the lawful 
 minister is God's representative or ambassador, to take securities, and bless 
 the parties in God's name. The church allows of no clandestine marriages, 
 and for the better security against such, she orders that all marriages 
 shall be celebrated in the daytime, for those who mean honestly and 
 honourably need not be ashamed and fly the light. And because most 
 people are more serious in the morning, it is appointed by the sixty-second 
 canon that all marriages shall, as already noticed, be solemnized between 
 the hours of eight and twelve; and formerly it was required that the bride 
 and bridegroom should both be fasting when they made this religious vow 
 in the presence of God, by which means they were preserved from being 
 incapacitated by drink from making a wise and voluntary choice. And 
 that this rite might be still more solemn, it is expressly required in England 
 that all marriages be celebrated in the church, the place of God's especial 
 preiLence, before whom they make this religious covenant at his holy altar. 
 It is also enjoined to be celebrated in the presence of their friends and 
 neighbours, who ought to attend on this solemnity to testify their consent, 
 and to join with the minister for a blessing on the parties. And lastly, 
 I may briefly observe, that the bridegroom and bride, being thus attended 
 
 4 L 
 
634 RELATIONS IN PRIVATE LIFE. 
 
 to the church, are there to stand at the altar, the man on the right hand, 
 and the woman on the leftj which position is expressly so ordered in the 
 Latin and Greek churches. But among the Jews, the woman stands on 
 the right hand of her intended husband, in allusion to that place of the 
 Psalms, " At thy right hand did stand the queen in a vesture of gold," 
 &c.* Yet, since the right hand is the most honourable place, it is in all 
 Christian churches assigned to the man, as being the head of the wife. And 
 since matrimony has been throughout the whole world reputed a religious 
 act, it is very fit that it should have a peculiar office for its performance. 
 The Greek church has three several offices; one at tlie espousals^ another 
 at the actual marriage^ which is called the coronation, and the third 
 office is for those who are married a second time. In England the marriage 
 rite is composed with peculiar judgment and piety, and all along instructs 
 those who are to be joined by it in the several parts of their duty; and as it 
 may be interesting to many, I will here add a brief description. 
 
 To prevent the vain and loose mirth too frequent at such solemnities, 
 the office of matrimony begins with a grave and awful preface, which 
 represents the sacred action to which the parties are preparing themselves, 
 to be of so divine an original, of so high a nature, and of such infinite 
 importance to all mankind, that they are not only vain and imprudent, but 
 even impious and void of shame, who will not lay aside all levity and 
 indecorum, and be serious and composed on so just and solemn an occasion. 
 And to prevent any misfortune, into whicli the two parties might either 
 inconsiderately or rashly run by this marriage, the minister charges all 
 who are present, '* if they know any just cause or impediment why they 
 may not be lawfully joined together, they do now disclose it," before the 
 holy bond be tied, since afterwards they cannot be heard to the benefit of 
 either party. But though others are at first charged to discover all known 
 impediments, as being most likely to reveal them, yet the minister before 
 he proceeds to the solemnization, charges the parties themselves, as being 
 most concerned, to reveal them, as they shall answer at tlie great day of 
 judgment ; since if there shall appear any just objection against their 
 marriage afterwards, they must necessarily either live in a state of perpetual 
 sin, or be separated by an eternal divorce. The impediments which they 
 are so solemnly charged to reveal, are those already enumerated. 
 
 If the congregation present allege none of these impediments, and none 
 be confessed by the parties themselves, the officiating minister proceeds to 
 the solemnization of the marriage; which being a formal compact, the 
 mutual consent of the parties is first asked, because their consent is so 
 essential, that the marriage is not good without it. For this reason 
 Rebekah's friends asked her consent before giving her to Isaac.f 
 * Psalm xlv. 10. f Geii. xxiv. 58. 
 
RELATIONS IN PRIVATE LIFE. 635 
 
 And in the firmest kind of matrimony among the ancient Romans, the 
 parties mutually asked each others' consent, which being so important 
 and universal a custom, was for that reason adopted into the office for 
 matrimony in all Christian countries; with this only difference, that the 
 priest asks the question, that so the declaration may be the more solemn, 
 as being made in God's presence, and to his deputed minister. And 
 that the parties may the better know what they are about to promise, 
 the priest enumerates the duties which in God's word they are commanded 
 to perform, viz. 
 
 The man must first promise to love his wife as God expressly com- 
 mands,* which stands in the first place, because if he has this true 
 affection for his wife, he will perform towards her all other duties with 
 ease and delight It being no burden to render good offices to those whom 
 we sincerely love. Secondly^ That he will comfort her, which God also 
 requires,f where the husband is enjoined to cherish his wife, that is, to 
 support her under all those infirmities and sorrows to which her tender 
 sex is liable. Thirdly, That he will honour her, which is also directly 
 commanded. $ Although the wife is the weaker vessel, yet she must 
 not be despised for those infirmities which God, for good and wise 
 purposes, has annexed to her constitution. She should rather be 
 respected for her usefulness, and her ready desire to add to her husband's 
 comfort. Fourthly, He must keep her in sickness and in health, 
 which, according to St Paul, is to nourish,^ or to afford her all neces- 
 saries in every condition. And lastly, he must be faithful to her bed, and 
 forsaking all others, keep himself only to her so long as tliey both 
 sJiall live, which corresponds with the words of prophets and apostles. || 
 This excellent sentence is placed in the marriage office to prevent those 
 three mischievous destroyers of marriage, adultery, polygamy, and divorce. 
 
 There is no difference in the duties, nor consequently in the terms of 
 the covenant between the man and his wife; only that the wife is obliged 
 to ohey and serve her husband, a duty frequently commanded by God 
 himself in the New Testament.TJ Besides, the rules of society make it 
 necessary, for equality breeds contention. It is therefore necessary that one 
 of the parties should be superior, otherwise there would be a perpetual 
 strife for dominion. Wherefore the laws of God, and the wisdom of all 
 nations, have given the superiority to the husband. Amongst the ancient 
 Romans, the law obliged the wife to be subject to her husband, and call 
 him lord. They had a peculiar magistrate to take care that the husbands 
 did not abuse this power, but that they ruled over their wives with 
 
 * Eph. V. 25, t ver. 29. . i Pet. iii. 7. « Eph. v. 29. 
 
 II Mai. 11. 15, 16. 1 Cor. vii. 10. ' 
 
 'i Eph. V. 22, 24. Colos. iii. 18. Tit. ii. 5. 1 Pet iii. 1, 5. 
 
636 RELATIONS IN PRIVATE LIFE. 
 
 gentleness and tenderness. Consequently women not only may, but it is 
 their bounden duty to pay aU that obedience which the gospel requires 
 of them. In Britain at least, they have no reason to complain with 
 Medea, " that they are sold for slaves with their own money;"* because 
 in the obedience required of them in the gospel there is really no slavery. 
 It ought to spring from their love to their husbands, and be paid in respect 
 of the dignity of the nobler sex, and in requital for that protection which 
 the weaker vessel both needs and enjoys in the holy estate of matrimony; 
 but above all, it ought to proceed from the love and fear of God, who has 
 enjoined it. In this observance the obedient wife finds it to be her interest 
 as well as her duty, because she thereby gains so much more love and 
 respect from her husband, that he cannot deny her any lawful and 
 reasonable request. It is not only an impious contempt of divine authority, 
 but egregious pride and folly, for any woman to refuse either to promise 
 or to pay to her husband this generous obedience, which is her great 
 privilege, if she has wisdom to understand, or skill to manage it right. 
 
 The two parties having given their consent to have each other, and 
 promised to the minister that they will each observe those sacred laws of 
 matrimony which God hath ordained, they proceed directly to the mutual 
 stipulation or covenant, which is introduced with two very significant cere- 
 monies. First, the father or friends giving the woman in marriage. The 
 antiquity of such rite is evident from the phrase so often used in Scripture, 
 of giving a daughter to wife ; and its universality appears from its 
 being used both by heathens and Christians in all ages. The reason for its 
 use seems to be, 1^^, Because the weaker sex is always supposed to be 
 under the tuition of a father or guardian, whose consent is necessary to 
 make the act valid. 2c?, This declares that the parents and friends agree 
 to this marriage, and that the father doth emancipate his daughter, and 
 make her free to engage in her own name. 3(Z, This shows that the 
 woman does not seek a husband, but \s given to one by her friends, and 
 follows their commands, rather than her own inclinations. Among the 
 nuptial rites of the ancient Romans, the bride was taken by a sort of 
 violence from her mother's knees ; and when she came to her husband's 
 house, she was not to go in willingly, but was to be carried in by force, 
 which, like the English ceremony of giving away, was very suitable to 
 the modesty of the female sex. 
 
 The other ceremony is the joining of hands^ which naturally signifies 
 contracting friendship and the making of covenants, and has been univer- 
 sally used among heathens, Jews, and Christians, in the sacred covenant 
 of marriage. The father delivers up his daughter to the priest; as it were 
 
 * Eurip. in Medea. 
 
RELATIONS IN PRIVATE LIFE. 637- 
 
 into God's disposal ; and he again, in God's presence. Joins their right 
 hands. Our right hand being generally used in plighting our faith to any 
 person. Having thus delivered them into each other's hands and power,* 
 the minister causes them to make this mutual stipulation or engagement, 
 than which nothing can be more strict or solemn. When in the former 
 part of the ceremony he asked the parties their consent, they in the 
 future tense promised to take each other in marriage. That was no more 
 than espousals, which in former times was a different office entirely from 
 that of matrimony, and might be done some weeks or even months before. 
 But as men of loose morals were frequently apt to cast off their spouses 
 before the completion of marriage, both the espousals and marriage were 
 put into one office: only in the espousals the parties say, / will take, &c.; 
 whereas in the marriage they say, / do take, &c. Each party first naming 
 themselves, to show that it is their own voluntary act, and then specifying 
 the other they have chosen, and declaring before Almighty God, that they 
 do " take each other for husband and wife," and that in the nature of the 
 firmest settlements, " to have and hold." These are words of such import- 
 ance, that no conveyance of an estate can be made without them, and 
 therefore they ought not to be omitted in this solemn act, because the man 
 and woman are now to put themselves into the power and possession of 
 each other : so that after this stipulation, in the solemn language of scrip- 
 ture, " the wife hath not power of her own body, but the husband; and 
 likewise the husband hath not power of his own body, but the wife."f 
 And to take away all exceptions that might be pretended for divorce, they 
 solemnly promise to each other *' from this day forward," during the 
 whole term of their lives : and that whether they " prove better or worse," 
 in respect of their mind or manners; or " richer or poorer," in respect 
 of their estate; or whether they be " healthy or sickly," in respect of their 
 body : and withal they promise to pay those duties to each other, which 
 has been already shown are necessary and indispensable. And for the 
 confirmation of this solemn vow and engagement, they *' plight their troth" 
 to each other; that is, they lay their truth to pledge, and in God's presence 
 engage their honesty and fidelity for their performance of it. 
 
 But besides the invisible pledge of our truth, the man is also to give a 
 visible pledge, viz. a ring. It was in ancient times a seal by which all 
 orders were signed, and all choice things secured. J Its delivery was a 
 sign that the party to whom it was given, was admitted into the nearest 
 friendship and highest trust. ;{: Hence it became a token of love,$ and was 
 used in matrimony, not only among the Jews and Gentiles, but among the 
 Christians also in tlie primitive and purest times, who gave their spouses 
 
 * 1 Cor. vii. 4. t Ibid. 
 
 I Gen. xxviii, 18.— Esth. iii. \(\ 12 Mace. vi. IS.^Gen, xli. 42.— Luke xv. 22. 
 
638 RELATIONS IN PRIVATE LIFE. 
 
 a ring at the time of marriage, to declare them worthy of the government 
 of their family; and in consequence rings have been ever since used in mar- 
 riage in all civilized countries. The ring's signification may be considered 
 two ways: 1. By way of allusion ; 2. By way of institution. The first 
 sort of remarks, are those which are its more remote significations; viz. As 
 to its matter, which is gold; the purest, the noblest, and the most durable 
 of all metals, to intimate the generous, sincere, and unceasing affection 
 which ought to subsist between married persons. 2. Its form, being round, 
 is the most perfect of all figures, and the most proper to imply union, and 
 that conjugal love which must never have an end. And 3. it is placed on 
 the fourth finger of the left hand, which the pagan Romans, among whom 
 it was customary, usually denominated the ring-finger. The ancients 
 generally affirmed their belief that a considerable vein ran from the heart 
 to this finger ; which for that reason ought, they said, to bear the pledge 
 of love. And although Dr Brown, in his " Vulgar Errors," will not 
 admit this, yet the connexion of this finger with the heart has been main- 
 tained by very eminent authors, both ancient and modern, both Gentiles 
 and Christians, physicians and divines. However the dispute may be 
 settled, the moral ought to be retained, that by this ring the husband 
 expresses the dearest love to his wife, which ought to reach her Iieart, 
 and engage her warmest affection in return. But these are merely 
 allegorical significations: the church has nobler intentions in this insti- 
 tution. Accordingly the ring is intended " to be a token and pledge of the 
 covenant made between them," as is manifest from the words spoken at its 
 delivery, and from the words of the prayer following. For it was customary 
 in all covenants to appoint some durable thing to commemorate it; such as 
 Lahan's heap;* Joshua^ s stone pillar ;'\ and the money given in bargains 
 as earnest or pledge. Hence the ring in marriage, which is a visible and 
 lasting token of a solemn covenant, the sight of which ought to remind 
 the parties of their mutual promises and vows. 
 
 Before the ring is placed on the woman's finger, the husband gives it 
 to the minister, who returns it to him, to be bestowed upon his wife. 
 Hereby intimating that it is our duty to offer up all that we have to God 
 in the first place, as the true proprietor, before we use them ourselves, 
 and to receive them as from his hand to be employed towards his glory. 
 When the husband delivers the ring to his wife, he addresses himself to her, 
 and declares audibly, with this ring I thee wed ; that is, this is a pledge 
 of that covenant of matrimony which I now make with thee. TVith my 
 body I thee worship — whereby he acknowledges that he owes her respect 
 or worship — and with all my worldly goods I thee endow^ in the 
 
 * Gen. xxxi. 62. f Josh. xxiv. 26, 27. 
 
RELATIONS IN PRIVATE LIFE. »39 
 
 name of the Father^ and of the Son, and of the Holy Ghost. Thus 
 giving her an interest in his estate, and sealing the whole by calling the 
 Holy Trinity to witness liis vow, and thus turning his promise into a most 
 solemn and sacred oath. 
 
 The minister, who is God's representative, having ordered this marriage 
 in all things agreeable to his Master's laws, sets His seal to it, by declaring 
 in our Saviour's own words, " Those whom God has joined together, let 
 no man put asunder."* In conclusion, the minister pronounces a solemn 
 benediction upon the parties in the name of the blessed Trinity. 
 
 The obedience which God has enjoined the wife, is not merely for tlie 
 husband's gratification, but for a higher and nobler end; and in return for 
 the honour with which he is invested, the fulfilment of corresponding duties 
 is incumbent upon him. In every country, but especially in Christian 
 countries, the laws affecting man and wife accurately set forth the oflSces of 
 Christ and his church. The wife upon her marriage, loses her own name 
 by its being absorbed into that of her husband; so the church is no longer 
 sin and folly, but righteousness and wisdom in Christ. The wife, however 
 mean her born condition, becomes equal in rank, even to be by marriage 
 the partner of a throne : the poor mortal, dying church, shall sit upon 
 Christ's throne, and be, as He is, a sovereign and a priest. The wife, 
 whatever may be the amount of her debts, is not answerable, but the 
 husband must defray them all. In like manner, the church, who was 
 ruined, and had nothing wherewith to pay, has had every obligation dis- 
 charged by the wealth and love of the Lord Jesus. 
 
 The line, then, of the husband's duty towards his wife, is according to 
 that which the Lord pursues towards his spouse the church. In the parallel 
 passage in his epistle to the Colossians, the apostle says, " Husbands love 
 your wives, and be not bitter against them." Although he told the wives 
 to " submit," he does not order the husband to '' rule." Directions are 
 seldom given to urge us to do that which we are naturally inclined to do, 
 and all mankind have the love of power. Whenever a direction is given 
 for any duty, we may rest assured that it is a warning to us that we are 
 naturally disposed to violate it. As therefore a dislike to submit to her 
 husband, is natural for a wife, so is it also natural for a husband's love to 
 diminish towards his wife. The definition of what God means by love, U 
 given in the first epistle addressed to the Corinthians, the parts of which 
 that are principally applicable to the present case are, that it " suffereth 
 long, and is kind — is not easily provoked, thinketh no evil — beareth all 
 things — hopeth all things — endureth all things." Oh how genuine afi^ec- 
 tion frames excuses for its object ! How it puts the most favourable 
 
 * Matth. xix. 6. 
 
fi4)0 RELATIONS IN PRIVATE LIFE. 
 
 construction upon actions! How reluctant it is to impute unworthy 
 motives I Yet the apostle's injunction implies that husbands are tempted 
 even to be " bitter." But what can they have to bear from their wives, 
 in comparison to what Christ has to bear from them ? If Christ were not 
 " to suffer long and be kind," what must become of all husbands from the 
 days of Adam down to the day of judgment? If Christ were " easily 
 provoked," where would any one be at the present moment ? Where 
 could love for their wives be manifested in these particulars, if their lives 
 were one unceasing round of tenderness and affection ? How would this 
 earth prove itself the universal abode of sin and misery, and evil, if, in any 
 one relationship of life, nothing were to arise to disturb its joys ? Wherein 
 could they testify love, if they found nothing to cross their wills ? And, 
 above all, where could the long-suffering of Christ towards his church be 
 manifested by husbands, if they met with nothing to call it forth ? 
 
 I cannot avoid inserting here the touching appeal which Mr Jay puis 
 into the lips of married women to their husbands : " Honour us ; deal 
 kindly with us. From many of the opportunities and means by which you 
 procure favourable notice, we are excluded. Doomed to the shades, few 
 of the high places of the earth are open to us. Alternately we are adored 
 and oppressed. From our slaves, you become our tyrants. You feel our 
 beauty, and avail yourselves of our weakness. You complain of our 
 inferiority, but none of your behaviour bids us rise. Sensibility has given 
 us a thousand feelings, which nature has kindly denied to you. Always 
 under restraint, we have little liberty of choice. Providence seems to have 
 been more attentive to enable us to confer happiness than to enjoy it. 
 Every condition has for us fresh mortifications ; every relation, new sor- 
 rows. We enter social bonds ; it is a system of perpetual sacrifice. We 
 cannot give life to others without hazarding our own. We have sufferings 
 which you do not share, cannot share. If spared, years and decay invade 
 our charms, and much of the ardour produced by attraction departs with 
 it. We may die. The grave covers us, and we are soon forgotten : soon 
 are the days of your mourning ended, soon is our loss repaired : dismissed 
 even from your speech, our name is to be heard no more ; a successor 
 may dislike it. Our children, after having a mother by nature, may fall 
 under the control of a mother by affinity, and be mortified by distinctions 
 made between them and her own offspring. Though the duties which 
 we have discharged invariably, be the most important and necessary, they 
 do not shine J they are too common to strike; they procure no celebrity : 
 the wife, the mother, fills no historic page. Our privations, our confine- 
 ment, our wearisome days, our interrupted, our sleepless nights, — the 
 hours we have hung in anxious watching over your sick and dying offspring 
 — But we forbear." 
 
RELATIONS IN PRIVATE LIFE: 641 
 
 At the risk of being tedious, I must now notice the unnatural prohibition 
 of marriage in the church of Rome, which the apostle calls a " departing 
 from the faith — forbidding to marry."* Bellarmine, in his disputations, 
 endeavours to make the celibacy of the clergy to be jure dwino : but if 
 not so, yet he endeavours to prove tliat it has been enjoined by canons of 
 as great antiquity as the apostles' times. A manifest absurdity, but which 
 we shall not tire our readers' patience by disproving. The English and 
 Scottish clergy struggled long and vigorously against this antichristian law 
 of the pope, and in spite of all the laws and canons continued to marry, 
 till Anselm, archbishop of Canterbury, a Burgundian by birth, a powerful 
 and factious prelate, held a synod or national council at Westminster, in 
 the year 1030, and there procured a severe canon against the marriage 
 of the clergy. But the inferior clergy universally resisted, and refused to 
 repudiate their wives and take concubines in their place. In consequence 
 of this firmness in the English clergy, he convoked a second council, where 
 he enacted still more severe canons against the married clergy, in the 
 presence of the king and all his nobility, which he most rigorously enforced, 
 but still was unable to effect his purpose. William Corboyl, one of his 
 successors in the see of Canterbury, followed Anselm's system, and was 
 canonized as a saint at Rome. In 1126, he summoned a synod at West- 
 minster, to make new canons against the married clergy, in which John 
 de Creraa, the pope's legate made a most elaborate speech in favour of 
 celibacy and chastity, and in which he inveighed against the married 
 clergy with great bitterness. This same John de Crema was, however, 
 found in bed with a concubine that very night. Up to the period of the 
 Reformation, the married clergy were persecuted by their Roman task- 
 masters, and lay under this bondage for upwards of three hundred years^ 
 But although the pope would not permit the clergy to marry, yet they 
 were not forbidden to keep concubines, provided it was not done publiclj 
 nor witli scanda], ^^uhlice nee cum scandalo ; nor were they allowed open 
 or avowed access, puhlicum accessum. For which purpose, there is 
 extant a canon passed in 1222, in a council held under Stephen Langton, 
 at Oxford. And it appears by the centum gravaminay that were pre- 
 sented to the pope in the year 1521, by the German princes, that it was 
 one of the grievances of that nation, that the pope permitted the clergy, 
 both regular and secular, to live publicly with their harlots, and beget 
 children. And that in most places the Romish bishops and their officials, 
 not only tolerated concubinage upon the payment of fines, among the 
 more dissolute sort of monks, but also exacted it of the most continent. 
 Alleging that if they did not keep a concubine they might, for it was 
 
 * 1 Tim. iv. 1, 3. 
 4M 
 
642 RELATIONS IN PRIVATE LIFE. 
 
 in their choice whether they would or not. So upon the whole, it appears 
 that the church of Rome allowed their clergy to keep a concubine privately, 
 if without scandal; but forbids them to marry, under pain of deprivation, 
 as being a sin against the Holy Ghost.* 
 
 In Henry VIII.'s time, and subsequently, various acts of parliament on 
 the subject of the marriage of the clergy were enacted. In his 3 1 st year 
 an act was passed, " whereby it was made felony for a priest carnally to 
 use a woman to whom he had been married or contracted j or even if he 
 kept company or familiarity with her. If any priest kept a concubine, 
 as by paying for her board, maintaining her with money or other gifts, 
 or means to the evil example of others, he should forfeit all his goods, 
 chattels, and spiritual promotions, and be put in prison for the first offence, 
 and the second offence to be felony.'' But this act appearing too severe, 
 was next year considerably mitigated. The act in the 31st Henry VIII., 
 commonly called the " act of the six bloody articles," by the third article 
 of which it was declared " that priests after they have received holy orders 
 might not marry, and to affirm the contrary thereof was declared to be 
 heresy and treason;'''' but this bloody act was repealed. By act of parlia- 
 liament Edward VI. declared " all laws, statutes, canons, ordinances, and 
 constitutions made against the marriage of priests to be mill and void ; 
 that the marriage of priests is lawful, and their children legitimate; that 
 they were entitled to endow their wives, and to be tenants by the courtesy." 
 On her accession Mary repealed this law, which repeal Elizabeth continued 
 all her reign, till king James's accession, when he revived and made the above 
 law of Edward VI. perpetual. It appears, therefore, that all acts of par- 
 liament, canons, constitutions, &c., that restrain the marriage of the clergy, 
 or that render their children illegitimate, are altogether null and void. 
 But that the canons and acts of parliament which punish their incontinency 
 stand in full force. The Westminster Confession of Faith fully acknow- 
 ledges the right of the clergy to lawful wedlock. The church of England 
 does the same. Her thirty-second article says, " bishops, priests, and 
 deacons, are not commanded by God's laws, either to vow the estate of 
 single life, or to abstain from marriage; therefore it is lawful for them, as 
 for all other Christian men, to marry at their own discretion, as they 
 shall judge the same to serve better to godliness." 
 
 II. The next point for consideration, is the manner in which marriages 
 may be dissolved ; which is either by death or divorce. There are two 
 kinds of divorce ; the one total, the other partial. The one is, a vinculo 
 matrimonii, the other is merely a mensa et tlioro. The total divorce, 
 a vinculo matrimonii, must be from some of the canonical causes of im- 
 
 * .Tohnson's Vade Mecum. Bums' Eccl. Law. 
 
RELATIONS IN PRIVATE LIFE. . 643 
 
 pediment aiready mentioned, where the marriage is declared null, as 
 having been absolutely unlawful ah initio. 
 
 Divorce a mensa et thoro^ is where the marriage is just and lawful ah 
 initio^ and therefore the law is tender of dissolving it. But from some 
 supervenient cause, it becomes improper or impossible for the parties to 
 live together. 
 
 In case of divorce a mensa et thoroy the law allows alimony to the wife. 
 It is that allowance which is made to a woman for her support out of 
 the husband's estate ; and which is settled at the discretion of the eccle- 
 siastical judge, on due consideration of all the circumstances in the case. 
 It is generally proportioned to the rank and quality of the parties; but in 
 case of elopement the law allows her no alimony. 
 
 III. The legal consequences of making or dissolving marriages , natu- 
 rally follow what has already been said. 
 
 By marriage, the husband and wife become in law one person. That is, 
 the very being or legal existence of the woman is suspended during the 
 marriage, or at least is incorporated and consolidated into that of the 
 husband. For this reason a man cannot grant anything to his wife, or 
 enter into covenant with her. The grant would be to suppose that she 
 had a separate existence. To covenant with her, would only be to 
 covenant with himself; and therefore it is also generally true, that all 
 compacts made between husband and wife, when single, are voided by the 
 intermarriage. A woman, indeed, may be her husband's attorney; for 
 that implies no separation from, but is rather a representation of, her lord. 
 And a husband may also bequeath anything to his wife by will; because 
 that cannot take effect till the convention is determined by his death. The 
 husband is bound to provide his wife with necessaries by law, as much as 
 himself. If she contracts debts for them, he is obliged to pay them. But 
 for anything besides necessaries, he is not chargeable. Also if a wife 
 elopes, the husband is not chargeable even for necessaries; at least if the 
 person who furnishes them is sufficiently apprized of her elopement. If 
 the wife be indebted before marriage, the husband is bound afterwards to 
 pay the debt; for he has adopted her and her circumstances together. If 
 the wife be injured in her person or her property, she cannot bring an 
 action for redress, without her husband's concurrence, and in his name as 
 well as her own. Neither can she be sued, without making the husband a 
 defendant. There is indeed one case where the wife can sue and be sued 
 as dkfeme sole^ or single woman, mz. where the husband has abjured the 
 realm, or is banished, because in either of these cases he is considered dead 
 in law. And the husband being thus disabled to sue for or defend the wife, 
 it would be most unreasonable if she were allowed no remedy, or could 
 make no defence at all. It is true, that in criminal prosecutions, the wife 
 
644 RELATIONS IN PRIVATE LIFE. 
 
 may be indited and punished separately, for the union is only a civil union. 
 But in trials of any sort, they are not allowed to be evidence for, or 
 against each other. Partly because it is impossible that their testimony 
 should be indifferent, but principally because of their union of person. 
 But where the offence is directly against the person of the wife, this rule 
 has usually been dispensed with. And therefore, agreeable to the statute 
 3 Henry VII., c. 2, in case a woman be forcibly taken away and married, 
 she may be a witness against her husband, in order to convict him of 
 felony. Because under such circumstances, she cannot with propriety be 
 considered his wife, since the main ingredient, lier own consen% was 
 wanting to the contract. There is also another maxim of law, that no 
 man shall take advantage of his own wrong; which he would do, if by 
 forcibly marrying a woman, he could prevent her from being an evidence, 
 who is perhaps the only witness to that very fact. 
 
 In the ciml law the husband and the wife are considered as two distinct 
 persons, and may have separate estates, contracts, debts, and injuries. 
 And therefore, in our ecclesiastical courts, a woman may sue and be sued 
 without her husband. 
 
 But, though our law in general considers man and wife as one person, 
 yet there are some instances, in which she is separately considered, as 
 inferior to him, and acting by his compulsion. And therefore all deeds 
 executed, and acts done, by her, during her coverture, are void. Except 
 it be a fine, or the like matter of record, in which case she must be solely 
 and secretly examined, to learn if her act was voluntary. She cannot by 
 will devise lands to lier husband, unless under special circumstances j for 
 at the time of making it she is supposed to be under his coercion. And 
 in some felonies, and other inferior crimes, committed by her, through 
 constraint of her husband, the law excuses her. But this excuse does not 
 extend to treason or murder. 
 
 These are the chief legal effects of marriage during the coverture. Upon 
 which we may observe, that even the disabilities, under which the wife lies, 
 are, for the most part, intended for her protection and benefit.* 
 
 By the law of England, marriage is both a civil and a religious contract. 
 It is the conjunction of one man with one woman in a constant society 
 and agreement of living together, until the contract is dissolved by death, 
 or breach of faith. It is one of the rights of human nature, instituted in 
 a state of innocency, and for the preservation of chastity. By the laws of 
 England nothing more is requisite to a complete marriage, than a full, 
 free, and mutual consent between the parties, provided they are not dis- 
 
 * Blackstone's Commentaries.- — Clergyman's Vade-mecum. — Dregge's Counsellor.-^ 
 Wheat)}' on the Common Prayer. — Burns' Ecclesiastical Law. — Social Duties. 
 
RELATIONS IN PRIVATE LIFE. fi4i5 
 
 abled from entering into that state by their near relation to each other, 
 infancy, precontract, or impotency.* 
 
 By the law of Scotland, marriage is a civil contract between a man and 
 a woman, whereby they unite themselves for life in a domestic society, for 
 the mutual solace and comfort of each otherj and having in view chiefly 
 the propagation of the species and the rearing of a family. This contract 
 is indissoluble, except by the death of one or other, or both of the parties; 
 or by divorce, founded on adultery or desertion. Impotency, or a natural 
 incapacity on either side for procreation, being not so much a ground for 
 divorce, as an essential nullity, in respect of which the contract may be 
 declared to have been Toid from the first.f 
 
 To constitute a valid marriage in Scotland, the parties must have 
 arrived at the age of puberty. That is, the male must be fourteen, and 
 the female twelve years of age, before they are held legally capable of 
 giving consent. After that age, parties may validly intermarry, provided 
 there is no legal disqualification. In order to constitute a legal marriage 
 in Scotland, the consent of parents or curators is not necessary. A regular 
 marriage is performed by a minister, in the presence of witnesses, and is 
 preceded by the publication of banns. Clandestine marriage is also cele- 
 brated by a minister, and is equally effectual as a regular marriage. The 
 minister and the parties are however both liable to penalties ; the minister 
 to banishment, and the parties themselves to fine and imprisonment. 
 Marriage in Scotland being merely a civil contract, may be completed by 
 consent alone, solemnly and deliberately given before witnesses, even 
 without carnal knowledge; consensus non concuhitus facit matrimonium^ 
 being a maxim of Scottish law. A promise or engagement to marry, 
 followed by cohabitation, constitutes marriage. A promise or engagement 
 to marry, however formal, where no carnal knowledge has taken place, 
 may be retracted ; but the party withdrawing is liable in damages for 
 breach of promise. Mr Erskine says : " It is not necessary that marriage 
 be celebrated by a clergyman. The consent of parties may be declared 
 before any magistrate, or simply before witnesses. When the order of 
 the church is observed, the marriage is called regular; when otherwise, 
 clandestine. Towards a regular marriage, the church requires procla- 
 mation of banns in the churches where the bride and bridegrooih reside. 
 Formerly, not only bishops, but presbyteries, assumed a power of dispens 
 ing with proclamation of banns on extraordinary occasions : but this has 
 not been exercised since the Revolution."J 
 
 As a marriage may be thus constituted by a promise followed by a 
 copula^ it may be acknowledged by writing, or to the midwife who 
 
 * Tomlinc's Law Diet. f Bell's Law Diet. X Erskiiie's Principles, pp. 62— -Ci. 
 
646 RELATIONS IN PRIVATE LIFE. 
 
 delivered, or to the minister who christened the child born in such cohabi- 
 tation. But for the purpose of ascertaining the status^ the written 
 acknowledgment must be produced and acted on, during the life of both 
 parties. The production of the written acknowledgment after the man's 
 death will not do. It will not give the woman the character of a widow 
 Marriage may be inferred from cohabitation ; from the parties living 
 together at bed and board; and from being habit and repute husband and 
 wife. Generally speaking, the exchange of mutual consent in the presence 
 of witnesses, or cohabitation, or habit and repute, may be proved by 
 parole evidence. If carnal knowledge has not followed a promise of 
 marriage, it can be competently proved, in the ordinary case, only by 
 writing, or the oath of parties. 
 
 The disqualifications, according to the law of Scotland, are of two 
 sorts. Either such as that no marriage can take place where they exist; 
 or such as afford grounds for dissolving the marriage. 1. Pupillarity, 
 since a person before arriving at the age of puberty is not legally capable 
 of giving consent. 2. Defect of judgment, idiocy, &c. 3. I m potency, 
 4. A previous marriage which still subsists. 5. By the act 1600, c. 20, 
 a marriage between a divorced person and his or her paramour, mentioned 
 as such in the decree of divorce, is declared illegal.* Propinquity within 
 the forbidden degrees, is a ground for dissolving marriage. The act 
 1547, c. 15, adopts the Jewish law, and declares that marriage shall be 
 as free as God has permitted it.f 
 
 II. Parent and Child. — The next, and most universal relation in 
 nature, and immediately derived from the preceding state of husband and 
 wife, is that subsisting between parent and child. 
 
 There are two sorts of children : legitimate and illegitimate. 
 
 I. A legitimate or lawful child, is he that is born in lawful wedlock, or 
 
 * Divorce is a judicial dissolution of the conjugal society while both the parties are living. 
 They are then at liberty to intermarry with others. By the law of Scotland, a divorce may 
 be obtained on the ground of adultery, and also of wilful desertion. N either of these grounds 
 dissolves a marriage ipso jure. The marriage subsists, notwithstanding the adultery or deser- 
 tion, unless a process of divorce is instituted. If the party injured by adultery continue the 
 matrimonial connexion after knowledge of the crime, it is held to be an irrevoc;il)le forgive- 
 ness of the oflence. An act of adultery so overlooked cannot afterwards be the grounds of a 
 divorce. When the divorce proceeds on wilful desertion, the act* requires that the offending 
 party sh;ill have abandoned the conjugal society for four consecutive )ears, maliciously and 
 without just cause. After such desertion, if he or she disregards the admonition of the 
 church to adhere, a decree of divorce may be pronounced. The action of divorce proceeds 
 before the commissaries of Edinburgh, and the pursuer must make oath that the action is 
 not collusive. In divorce, on the grounds of desertion, the offending husband is bound to 
 restore the dower, and to fulfil to the wife all her legal or conventional provisions. The 
 offending wife forfeits her dower and all her legal and conventional rights.f Marriages 
 contracted between the adulterer and the person with whom he or she is declared to have 
 committed the crime, are declared to be null and unlawful, and the issue of such marriages 
 to be incapable of succeeding to their parents.]: 
 
 t Bells Law Diet. — Erskine's Principles of the Law of Scotland. 
 
 » 1578, c. 55. + Act 1600, c 20. X Bell's Law Diet. 
 
RELATIONS IN PRIVATE LIFE. 64,7 
 
 within a competent time afterwards. In this article we shall inquire into, 
 1. The legal duties of parents to their legitimate children. 2. Their 
 power over them. 3. The duties of such children to their parents. 
 
 1. The duties of parents to their legitimate children, principally consist 
 in their maintenance, their protection, and their education. 
 
 The duty of parents to provide for the maintenance of their children 
 is a principle not only of natural law, but is of divine authority, for the 
 apostle assures us, that the man who neglects this natural duty " is worse 
 than an infidel, and has denied the faith." And our blessed Lord, in his 
 sermon on the mount, after assuring us of our heavenly Father's ears 
 being ever open to our prayers, bidding us only «sA:, and we shall receive; 
 seek, and we shall find; knock, and it shall be opened unto us ; says, 
 " Or what man is there of you, whom if his son ask bread, will he give 
 him a stone? Or if he ask a fish, will he give him a serpent? If ye 
 then, being evil, know how io give good gifts unto your children, how 
 much more shall your Father which is in heaven give good things to them 
 that ask him ?" 
 
 It is a principle of law, that there is an obligation on every man to 
 provide for those descended from his loins ; and I will now show how this 
 obligation is to be performed, according to several statutes for that purpose. 
 The father and mother, grandfather and grandmother, of poor impotent 
 persons, shall maintain them at their own charges, if of sufficient ability, 
 according as the quarter sessions shall direct. If a parent runs away, 
 and leaves his children, the churchwardens and overseers of the parish 
 shall seize his rents, goods, and chattels, and dispose of them towards the 
 relief of the deserted children. According to the interpretation which the 
 courts of law have made upon these statutes, if a mother or grandmother 
 marries again, and before such second marriage, was of sufficient ability to 
 keep the child, the second husband shall be charged to maintain it. Because 
 this being one of the wife's debts when single, which it has been before 
 explained, the husband is obliged to take upon himself, this also, like others, 
 falls to the new husband's charge. But at her death, the relation being 
 dissolved, the husband is under no farther obligation to maintain these 
 children. 
 
 No person is, however, bound to provide a maintenance for his issue, 
 unless where the children are impotent and unable to work, either through 
 infancy, disease, or accident. And even then he is only obliged to find their 
 with necessaries, the penalty on refusal being no more than twenty shillings 
 a-month. 
 
 The law has made no provision to prevent parents from disinheriting 
 their children by will. It leaves every man's property in his own disposal, 
 upon a principle of liberty in this, as well as every other action. Heirs 
 
648 RELATIONS IN PRIVATE LIFE. 
 
 however, and children, are favourites of our courts of justice, and cannot 
 be disinherited by any dubious or ambiguous words. The law requires the 
 utmost certainty of the testator's intentions to take away the right of an 
 heir before it be admitted. The transition is natural and easy from the 
 duty of maintenance to that of protection. This is also a natural duty, 
 but is rather permitted than enjoined by our municipal laws; nature working 
 in this respect so strongly, as to need rather a check than to require a 
 spur. A parent may maintain and uphold his children in their lawsuits, 
 without being guilty of the legal crime of maintaining quarrels; and he 
 may also justify an assault and battery in defence of the persons of his 
 children. 
 
 The last duty of parents to their children, is that of giving them an edu- 
 cation suitable to their station in life. This duty is pointed out not only by 
 reason, but chiefly by revelation, and is of the greatest importance of any. 
 God himself was pleased to commend Abraham, " because," said He, " I 
 know him, that he will command his children and his household after him, 
 and they shall keep the way of the Lord to do justice and judgment."* 
 The wise king of Israel recommends the fathers of his day, and though 
 dead, he yet speaks to us, " train up a cliild in the way he should go, and 
 when he is old, he will not depart from it."f The wise son of Sirach also 
 says, that " a horse not broken becometh headstrong, and a child left to 
 himself will be wilful."t " Hast thou children ? instruct them, and bow 
 down their neck from their youth. "§ But, above all, " the illustrious 
 apostle of the Gentiles commands his Colossian converts, " Fathers, provoke 
 not your children to anger, lest they be discouraged."|l *' And ye, fathers, 
 provoke not your children to wrath ; but bring them up in the nurture 
 and admonition of the Lord."lJ It is not, however, for a moment to be 
 supposed that children owe no duties towards their parents. On the con- 
 trary, the Scriptures are express in enjoining submission and obedience on 
 the child. " Honour thy father and thy mother, that thy days may be 
 long in the land which the Lord thy God giveth thee."** This, which is 
 the fifth commandment in the decalogue, is by an apostle called the first 
 commandment with promise. " And he that smiteth his father or his 
 mother, or he that curseth his father or his mother, shall surely be put to 
 death."ff The father stands to his young child in the place of God; as 
 the author of its existence, the giver and preserver of its life. The mother 
 stands as the church, which is the mother of us all, to whom the instruction 
 in all godliness and righteousness of her Lord's children is intrusted. Thus 
 the parents' faith becomes in a great degree the faith of the child. Say 
 to yourself, although the extent of my dominion is the smallest upon earth, 
 
 * Gen. xviii. 19. f Prov. xxii. 6. \ Eccles. xxx. 8. § Ibid. vii. 23. 
 
 Jl Coles, iii. 21. 11 Eph. vi. 4. ** Exod. xx. 12. ft Exod. xxi. 15, 17. 
 
RELATIONS IN PRIVATE LIFE. 64t9 
 
 why is Uie authority given me the mo&t extensive out of heaven ? Within 
 my own family, there is no one who can, none who should dispute this 
 with me ; and of those around my dwelling, from the highest authority in 
 the state, to my next door neighbour, there is none disposed to interfere. 
 Above myself upon earth there is none; and to myself I sometimes feel as 
 though in this matter, I were only next under God. True, as it regards 
 mankind in general, whatever be your station, high or low, as parents, 
 unquestionably you are next under God. High and ennobling dignity, 
 joined to an awful responsibility I In early times, and even down to the 
 establishment of Christianity by Constantine, the father had power of life 
 and death over his children, as well as indeed over all the other members 
 of his family.* 
 
 There is no dictate of nature more impressed upon us in Scripture, 
 than the obedience of children to their parents, as witness the Scriptures 
 already quoted. And it is remarkable, that in the first command with 
 promise, a blessing is added, " that it may be well with thee, and that 
 thou may est live long upon the earth." In this command, our duty to 
 our governors both in church and state is contained. The one is our 
 spiritual, and the other our political fathers ; and our rebelling against 
 them, and taking the sword, will cause us to perish with the sword, and 
 so shorten our days. God promises that upon our obedience it shall be 
 well with us ; and He expresses his own authority over us, by the obe- 
 dience we owe to our natural fathers. " If I be a father, where is mine 
 honour ?"f Children owe honour and obedience to the mother, but in 
 subordination to the father, so that if their commands should interfere, 
 those of the father must be obeyed. It cannot be supposed that her power 
 over her children can be equal to the father's, from the dominion and rule 
 which God gave to the husband over the wife, noticed in the last article, 
 on husbands and wives. Unquestionably the mother possesses a power and 
 authority over her children, but the supreme power belongs only to the 
 father, for he commands both mother and children. Therefore, when God 
 asserts his supreme authority over the children of men, he always calls him- 
 self our Father^ but never our mother. The church, which is subordinate to 
 him, is in this sense our mother, ^he Westminster Confession of Faith, 
 which is the standard of doctrine and discipline of the establishment of 
 Scotland, says in explanation of the fifth commandment, that " hj father 
 and mother^ are meant not only natural parents, but all superiors in age 
 and gifts, and especially such as, by God's ordinance, are over us in the 
 place of authority, whether in family, church, or commonwealth. Superiors 
 are styled fatlier and mother, both to teach them ,in all duties towards 
 
 * Social Duties. f Mai. i. 6. 
 
650 RELATIONS IN PRIVATE LIFE. 
 
 their inferiors, like natural parents, to express love and tenderness towards 
 them according to their several relations, and to work inferiors to a greater 
 willingness and cheerfulness in performing their duties to their superiors 
 as to their parents." And again, " the reason annexed to the fifth com- 
 mandment, is an express promise of long life and prosperity, as far as it 
 shall serve for God's glory and their own good, to all such as keep this 
 commandment."* And that it relates to our spiritual and political, as 
 well as to our fathers after the flesh, is the common and received opinion 
 of the whole Christian church. In explaining this commandment, the 
 church of England teaches; in the question concerning our duty towards 
 our neighbour in her catechism, that to " honour thy father and thy 
 mother," is, '* to honour and obey the king, and all that are put in 
 authority under him. To submit ourselves to all our governors, teachers, 
 spiritual pastors, and masters. To order ourselves lowly and reverently 
 to all our betters." Under which commandment the whole economy of 
 government, from the highest to the lowest, is included, and deduced from 
 it. Overall, in his Convocation-book,f more largely explains and asserts 
 it, when he says, " that it is generally agreed upon, that obedience to 
 kings and civil magistrates is prescribed to all subjects in the fifth com- 
 mandment, where we are enjoined to honour our parents. Whereby it 
 followeth, that subjection of inferiors unto their kings and governors, is 
 grounded upon the very law of nature; and consequently, that the sentences 
 of death, awarded by God himself, against such as showed themselves 
 disobedient and incorrigible to their parents, or cursed them, or struck 
 them, were likewise due unto those who committed any such offences 
 against their kings and rulers, being the heads and fathers of their common- 
 wealths and kingdoms." 
 
 In difTerent ages and nations, the supreme power has been called by 
 different names, such as king, emperor, governor, protector, patriarch, 
 captain, judge, &c. Every one bearing any of these titles took the 
 name oi father of his country. By any or all of these names the su- 
 preme power was meant ; which having been originally lodged by God 
 in Adam, he may be called by any or all of these titles, though that of 
 father was the most ancient, and includes all the rest. Dr Overall, before 
 cited, says that the reason why Adam's power is called patriarchal, regal, 
 or imperial is, because it had no superior authority or power over or above 
 it on earth. That he had the power of life and death over his children, is 
 evident from the case of Cain. From Adam all mankind have deduced 
 their authority over their wives and children. Judah commanded his 
 daughter-in-law, Tamar, to be burnt, for having played the harlot ; but 
 
 I 
 
 * Westminster Confession, 291—302. f P- 25. 
 
RELATIONS IN PRIVATE LIFE. 651 
 
 when he found that it was by himself, he forgave herj which showed that 
 he had absolute sovereign power in his own family, for no one pretended 
 to a right to punish him for his share of her crime. The mother's power 
 over the children was not co-ordinate or equal, but subordinate to the 
 father's. Although the mother is joined with the father in the thirteenth 
 chapter of the prophecy of Zechariah, yet it is to express the prophet's 
 greater abhorrence of the sin of blasphemy in the son, and to show that 
 her love and compassion as a mother, must yield to her duty and regard 
 to God. But suppose that she should, from her tenderness to the son of 
 her womb, have refused to have joined in " thrusting him through," that 
 would not have taken away the father's power to have done it by himself. 
 Or suppose again, that the father should have pardoned and acquitted him 
 for the sin of blasphemy, the mother could neither have condemned nor 
 executed him against the father's authority. Another proof from our 
 own experience still further shows, that the laws of our own and all other 
 countries show that the mother's authority over her children is subordinate 
 to the father's. In the cases of government, titles, and property, all 
 these immediately, on the death of the father, descend to his eldest son, or 
 at all events to his nearest heir, but do not devolve on the mother as his 
 survivor. The queen, from being the king's consort and superior to her 
 son, immediately on the king's death sinks down into the queen-dowager, 
 and becomes subject to her son. In the descent of private inheritances 
 and titles, the mother has a dowry, but the title or estate descends to her 
 son, who then becomes her superior, and the head of his father's house. 
 This has been the custom of the whole earth from the beginning of the 
 world, both civilized and barbarian. What has always been, and whose 
 beginning we know not, must have been from the beginning, and therefore 
 must be of God's appointment. Every husband and father derives his 
 power and authority over his wife and children by lineal succession from 
 Adam, on whom it was originally conferred by God himself.* The priest- 
 hood as well as the civil government was annexed to the primogeniture or 
 the eldest son, and was exercised by the first-born till God took the Levites 
 for his priests. " And I, behold I have taken the Levites from among 
 the children of Israel, instead of all the Jirst-horn that openeth the matrice 
 among the children of Israel, therefore the Levites shall be mine, because 
 all the first-born are mine."-]- The same is again repeated, " and I have 
 taken the Levites for all the Jirst-horn of Israel.''^: And to impress more 
 strongly and decisively the dignity of the first-born. He sanctified the 
 firstlings of beasts to be sacrificed unto himself. Even from the beginning 
 of the world, from the first institutions of sacrifices, they were not to 
 
 * Gen. iii, 16. + Num. iii. 12, 13. t Ib'fl. viii. 18. 
 
^5^ HtlAHtanS I5r PRIVATE LIFE. 
 
 tak6 frdm (h6 flocks and herds indiscriminately, but the firsth'ngs only. 
 And we find that Abel observed this, by sacrificing the firstlings of his 
 flock.* Under the law, whatever ^7*5^ opened the womb, whether of man 
 or beast, was holy unto the Lord.f 
 
 The word birthright, or first-born, is always used to express great 
 dignity. Thus king David, who wa,s the eighth and youngest son, is called 
 the first -born t Ephraim also is called the first-horn, and set before his 
 elder brother Manasseh.§ Reuben was rejected from the dignity of the 
 primogeflittifeJ, on account of having defiled his father's bed by lying vrith 
 his father s concubines.fl Simeon and Levi were also rejected on account 
 of their cruel massacre of the Sichemites, in the matter of their sister 
 Dinah's ravishment ; and Judah, the fourth son, was preferred to the 
 rights and piritileges of the first-born. The dominion over his father's 
 house and descendants was given to him, and thus expressed : " Judah^ 
 thou art he whom thy brethren shall praise: thy hand shall be in the neck of 
 
 thine enemies : thy father^ s children sluitl horv down before thee : 
 
 the sceptre shall not depart from Judah, nor a lawgiver from between his 
 feet, until Shiloh come, and unto him shall the gathering of the people 
 be."1[ Joseph's blessing follows afterwards, according to the order of 
 his birthright. To him was given what Jacob had " taken from the 
 Amorite with his sword and with his bow," as an act of special favour for 
 his wonderful preservation and support of his father and all his brethren 
 for so itiariy years in the land of Egypt. The blessings pronounced on 
 his Sons by Jacob, in the forty-ninth chapter of Genesis, were not applicable 
 to the time in which they were spoken, but were prophetical. He gave 
 the dominion to Judah, which his three elder brothers had forfeited, with 
 a prophetical announcement that through his family our Saviour should 
 come. The sceptre here alluded to, was given to Judah in David of that 
 tribe, and ordained to continue in the hereditary succession of the eldest 
 son. Hence our Saviour, who came of the tribe of Judah, is called the 
 Son of David. This was the dominion which was to endure for ever in 
 the person of our blessed Lord, our elder brother. Mr Poole, a most 
 learned dissenter, in his synopsis says, there were three prerogatives of the 
 primogeniture — the priesthood ; the dominion, or civil governmelit j and 
 the double portion. At first, these prerogatives were united in the first- 
 born son, but God was afterwards pleased to divide them. The priesthood 
 was given to Levi, instead of the first-born.** And the dominion, or civil 
 government, was given to Judahf f for the reasons already given. Although 
 
 * Gen. iv. 4. f Fxod. xiii. 2. Num. iii. 13. ; Ps. Ixxxix. 27. 
 
 ^ Jer. xxxi. 9. || Gen. xlix. 4. 1 Chion. v. 1. ^ Gen. xlix. 8, UK 
 
 ** Num. iii. 12, ++ 1 Chron. xxviii. 4. 
 
RELATIONS IN PRIVATE LIFE. 653 
 
 God may alter his own institutions, yet we must not alter what he has 
 appointed. 
 
 2. The power of parents over their children is derived from their duty, 
 which has already been considered. This authority being conferred, partly 
 to enable the parent more eifectually to perform his duty, and partly as a 
 recompense for his care and trouble in the faithful discharge of it. He 
 may lawfully correct his child, being under age, in a reasonable manner; 
 because this is for the benefit of his education. The consent or concur- 
 rence of the parent to the marriage of his child, being under age, was also 
 directed by our ancient law to be obtained. But now it is absolutely 
 necessary^ because without the parent's consent the contract of minors is 
 void. A father has no more power over a son's estate^ than as his trustee 
 or guardian ; for though he may receive the profits during the child's 
 minority, yet he must account for them when he comes of age. He may 
 indeed have the benefit of his children's labour while they live with him, 
 and are maintained by him ; but this is no more than he is entitled to from 
 his apprentices or servants. A father's legal power over the persons of 
 his children ceases at the age of twenty-one. As before observed, a 
 mother is not entitled to power, but only to reverence and respect. At 
 twenty one, being the legal years of discretion, they are enfranchised, and 
 the empire of the father, or other guardian, gives place to that of reason. 
 Yet, till that age arrives, this paternal empire continues even after the 
 death of the father, for he may by his will appoint a guardian to his 
 children. He may also, during his own life, delegate a part of his parental 
 authority to the tutor or schoolmaster of his child, who is then in loco 
 parentis, and has such a portion of the parent's power committed to his 
 charge, viz. that of restraint and correction, as may be necessary to answer 
 the purposes for which he is employed. 
 
 3. The duties of children to their parents arise from a principle of 
 natural justice and retribution. For to those who gave us existence, we 
 naturally owe subjection and obedience during our minority, and honour 
 and reverence ever after. They who protected the weakness of our 
 infancy, are entitled to our protection in the infirmity of their age. They 
 who by sustenance and education have enabled their offspring to prosper, 
 ought in return to be supported by that offspring, in case they stand in 
 need of assistance. Upon this principle proceed all the duties of children 
 to their parents which are enjoined by positive laws. 
 
 It is the duty of children to pay all external honour, civility, and respect, 
 to their parents. " Hearken," says Solomon, " unto thy father that 
 begat thee, and despise not thy mother when she is old." Let such as 
 neglect these and similar exhortations of the wise man, dread his threaten - 
 ings, that " the eye which mocketh at his father, and despiseth to obey 
 
654 RELATIONS IN PRIVATE LIFK 
 
 his mother, the ravens of the valley shall pick it out, and the young eagles 
 shall eat it.'* But if parents, through fondness or want of judgment, 
 take off the restraints, and remove the barriers, which keep their children 
 in due and salutary subjection to their authority, they may have cause 
 to repent of their folly. If there happen to be no miscarriage, it is not 
 owing to their own discretion, but to the grace of God working in their 
 children's hearts. Children ought not to pry into their parents* infirmities 
 and failings, but endeavour to conceal them, and suppress even the thought 
 of them in their own hearts. Let them never forget, that when Noah 
 '* planted a vineyard, and drank of the wine, and was drunken j and he 
 was uncovered within his tent : and Ham, the father of Canaan, saw the 
 nakedness of his father, and told his two brethren without;" a curse was 
 pronounced upon Ham, which has ever since apparently stuck to his 
 descendants, the poor Africans, to this day. And our fathers' nakedness 
 may be exposed by speaking of, or exposing their sins, weaknesses, or 
 infirmities. And that children may the better discharge this part of their 
 duty, as it is partly in the parents' power, so should it be their earnest 
 endeavour to set them the best example, and not to offend any of these 
 little ones. Our Saviour assures us " it were better that a millstone were 
 hanged about a man's neck, and he were drowned in the depth of the 
 sea,"* than that he should offend his children. By offence is here meant, 
 the setting them a bad example. Because, as precept is ever of less im- 
 portance than example, they are much more apt to follow a bad example 
 than to be led and governed by a good precept. 
 
 II. We are next to consider the case of illegitimate children or 
 bastards. And, 1. Who are illegitimate. 2. The legal duties of the 
 parents towards a natural child. 3. The rights and incapacities attending 
 such children. 
 
 1. An illegitimate child, is one that is not only begotten, but born out 
 of lawful matrimony. Against which God's law is express, " Thou sludt 
 not commit adultery.^'' The civil and canon law do not allow a child 
 to remain illegitimate, if the parents afterwards intermarry. All children, 
 therefore, who are born before matrimony, are illegitimate by the law 
 of England. In Scotland, the subsequent intermarriage of the parents, 
 provided neither of the parties have made an intermediate marriage, renders 
 the children previously born legitimate, and capable of inheriting. But in 
 England it is only those born in lawful marriage that are legitimate, those 
 born before, even although the parents do afterwards marry, are illegiti- 
 mate. A recent case in point is the Berkeley peerage, the present earl 
 being the fifth son of the same parents. 
 
 * Matt, xviii. 
 
RELATIONS IN PRIVATE LIFE. 
 
 655 
 
 2. The duty of parents to their natural children, hy law, is principally 
 that of maintenance. Nevertheless, the duty of education and religious 
 instruction, is by no means to be neglected. 
 
 3, I proceed next to the rights and incapacities which appertain to an 
 illegitimate child. The rights are very few, being only such as he can 
 acquire by his own genius and industry. He cannot inherit anything, 
 being looked upon as the son of nobody, and is in law sometimes called 
 
 jilius nullius, and sometimes filius populi. Yet he may gain a sirname 
 by reputation, though he has none by inheritance, and ought to take his 
 mother's name. All legitimate children have their primary settlement in 
 their father's parish, but a natural child in the parish where he was born, 
 for he has in law no father. Natural children, born in any licensed hospital 
 for pregnant women, are settled in the parishes to which the mothers 
 belong. The incapacity of an illegitimate child consists principally in 
 this, that he cannot be any one's heir, neither can he have any heirs, but 
 only of his own body. Being nobody's son, nullius Jilius, he is therefore 
 of kin to nobody, and has no ancestor from whom any inheritable blood 
 can be derived. The king's transcendent power can make a natural child 
 legitimate and capable of inheriting, by an act of parliament, as has been 
 frequently done. In former times, the unmarried clergy of the Romish 
 church procured letters of legitimation for their bastards, which by courtesy 
 were called nephews and nieces^ in order that they might inherit their 
 private property. Bastardy incapacitates a man from taking holy orders.* 
 
 Ill, Guardian and Ward. — The next general private relation 
 remaining to be discussed, is that of guardian and ward. A relationship 
 which bears a strong resemblance to the last, and indeed is plainly derived 
 out of it. The guardian being only a temporary parent, that is, for so long 
 a time as the ward is an infant, or under age. In examining this species 
 of relationship, I shall first consider the different kinds of guardians. How 
 they are appointed, and their power and duty. Next the different ages of 
 persons, as defined by the law. And lastly, the privileges and disabilities of 
 an infant, or one under age and subject to guardianship. 
 
 Of the different species of guardians, the first are such hy nature ; viz. 
 the father, and in some peculiar cases, the mother of the child. If an 
 estate be left to an infant, the father, by common law, is the guardian, 
 and must account to his child for the profits. And with regard to 
 daughters, it seems that the father might by deed or will assign a guardian 
 to any female child under the age of sixteen; and if none be so assigned, 
 the mother shall in this case be the guardian. There are also guardians 
 for nurture, which of course, are the father or mother, till the infant 
 
 * Blackstone.— Social Duties.— View of the Times. 
 
656 RELATIONS IN PRIVATE LIFE. 
 
 attains the age of fourteen years. In default of father or mother, the 
 ordinary usually assigns some discreet person to take care of the infant's 
 personal estate, and provide for his maintenance and education. Next are 
 guardians m soccage, who are also called guardians hy the common lan\ 
 These take place only when the minor is entitled to some estate in land, 
 and then, by the common law, the guardianship devolves on his next of 
 kin to whom the inheritance cannot possibly descend. Such as in the case 
 of the estate descending from the father, then his uncle by the mother's 
 side, who cannot possibly inherit this estate, shall be the guardian. Because 
 the law judges it improper to trust the person of an infant in his hands 
 wlw may by possibility become his heir, that there may be no temptation, 
 nor even suspicion of the kind, for him to abuse his trust. These guardians 
 in soccage, like those for nurture, continue only till the minor is fourteen 
 years of age. For then in both cases he is presumed to have discretion, so 
 far at least as to choose his own guardian. This he may do, unless one 
 has been appointed by his father till he has attained the age of twenty -one. 
 These are called guardians hy statute, or testamentary guardians. There 
 are also ^special guardians hy custom of London and other places, but they 
 are particular exceptions, and do not fall under the general law. 
 
 The power and reciprocal duty of a guardian and ward, are the same, 
 pro tempore, as that of a father and child, and therefore need not be here 
 repeated. But this only may be added, that the guardian, when the ward 
 comes of age, is bound to render him an account of every transaction 
 entered into on his behalf, and must answer for all the losses incurred by 
 wilful default or negligence. In order, therefore, to prevent disagree- 
 able contests with young gentlemen, it has become a practice for many 
 guardians, especially of large estates, to indemnify themselves, by applying 
 to the court of chancery, acting under its direction, and accounting 
 annually before the officers of that court. For by the right conferred on 
 him by the crown, the lord chancellor is the general and supreme guardian 
 of all infants, as well as idiots and lunatics. That is, of all such persons as 
 have not sufficient discretion to manage their own concerns. In case, 
 tlierefore, any guardian abuses his trust, the court will check and punish 
 him; nay, will sometimes proceed to his removal, and will appoint another 
 in his stead. 
 
 I will next consider the ward or person within age, for whose assistance 
 and support these guardians are constituted by law, or who it is that is 
 said to be within age. The ages of males and females are different, for 
 diflferent purposes. A male at twehe years old may take the oath of 
 allegiance. At fourteen he is at the years of discretion, and therefore may 
 consent or disagree to marriage, may choose his guardian, and if his 
 discretion be actually proved, may make his testament of his personal 
 
RELATIONS IN PRIVATE LIFE. 657 
 
 estate^ At seventeen he may be an executor. At twenty-one he is at his 
 own disposal, and may alien liis lands, goods, and chattels. A female 
 also at seven years, may be given in marriage. At nine she is entitled to 
 dower. At twelve she is at years of maturity, and therefore may consent 
 or disagree to marriage, and if proved to have sufficient discretion, may 
 bequeath her personal estate. At four teen she is at years of /^t^^/ discretion, 
 and may choose a guardian. At seventeen she may be an executrix. 
 And at twenty-one she may dispose of herself and lands. So that full age 
 in male or female is twenty-one years. Which age is completed on the 
 day preceding the anniversary of a person's birth, who till that time is an 
 infant, and so styled in law. 
 
 Infants have different privileges, and various disabilities. But their very 
 disabilities are privileges, in order to secure them from hurting themselves 
 by their own improvident acts. An infant cannot be sued but under the 
 protection, and joining the name of his guardian; for he is to defend him 
 against all attacks, as well by law as otherwise. But he may sue either by 
 his guardian, or prochein amy, his next friend who is not his guardian. 
 This prochien amy may be any person who will undertake the infant's 
 cause; and it frequently happens, that an infant, by his prochien amy, 
 institutes a suit in equity against his fraudulent guardian. In criminal 
 cases, an infant of the age o{ fourteen years may be capitally punished for 
 any capital offence; but under the age of seven he cannoi. The period 
 between seven 2lw^ fourteen is subject to much uncertainty; for the infant 
 shall, generally speaking, be judged prima facia, innocent. Yet if he was 
 doll capax, and could discern between good and evil at the time of the 
 offence committed, he may be convicted, and undergo judgment and exe- 
 cution of death, although he may not have attained to years of puberty or 
 discretion. Sir Matthew Hale gives two instances: one of a girl of thirteen, 
 w!io was burned for killing her mistress. Another of a boy still younger, 
 that killed his companion and hid himself, who was hanged; for it appeared 
 by his hiding that he knew he had done wrong, and could discern between 
 good and evil. In such cases the maxim of the law is, that malitia 
 supplet (Etatem. So in much more modern times, a boy who was ten 
 years old, and guilty of a heinous murder, was held a proper subject for 
 capital punishment, by the opinion of the judges. Two or three years 
 ago, a boy who murdered another boy in a coppice near Chatham, was 
 hanged for the murder, though he was under fourteen years. 
 
 With regard to estates and civil property, an infant has many privileges. 
 This may be said in general, that an infant shall lose nothing by non- 
 claim, or neglect of demanding his rights, nor shall any other ladies or 
 negligence be imputed to an infant, except in some very particular cases. 
 
 It is true \\\ general, that an infant can neither aliene his lands, nor do 
 
 4 o 
 
658 RELATIONS IN PRIVATE LIFE. 
 
 any legal act, nor make a deed, nor indeed any manner of contract that 
 will bind him. As legal trustees, or mortgagees, they are enabled to 
 convey, under the direction of the court of chancery or exchequer, or 
 other court of equity, the estate they hold in trust or mortgage, to such 
 person as the court shall appoint. It is also generally true, that an infant 
 can do no legal act. Yet, an infant who has an advowson or patronage 
 of a church, may present to the benefice when it becomes void. For the 
 law in this case dispenses with one rule, in order to maintain others of far 
 greater consequence. It permits an infant also to purchase lands, but his 
 purchase is incomplete. When he comes to age, he may either agree 
 or disagree to it, as he thinks prudent or proper, without alleging any 
 reason, and so may his heirs after him, if he dies without having completed 
 his agreement. He may, in some cases, bind himself apprentice, by deed 
 indented, or indentures, for seven years ; and he may by deed or will, 
 appoint a guardian to his children, if he has any. Lastly, it is generally 
 true, that an infant can make no other contract that will bind him. Yet he 
 may bind himself to pay for necessary meat, drink, apparel, physic, and 
 such other necessaries. Likewise for his good teaching and instruction, 
 whereby he may profit himself afterwards.* 
 
 IV. Master and Servant — In discussing the relation of master 
 and servant, I shall first consider the several sorts of servants, and how 
 this relation is created and destroyed ; secondly, the effect of this relation 
 with regard to the parties themselves ; and lastly, its effect with regard to 
 other persons. 
 
 I. The first description of servants which are acknowledged by our 
 laws, are menial servants, so called from being intra moenia, or domestics. 
 The contract between them and their masters arises from hiring. If the 
 hiring be general, without any particular time limited, the law construes 
 it to be hiring for a year. Upon a principle of natural equity, that the 
 servant shall serve, and the master maintain him, throughout all the 
 revolutions of the respective seasons ; as well when there is work to be 
 done, as when there is not. But the contract may be made for any larger 
 or smaller term. 
 
 Another species of servants are called apprentices, from apprendre, 
 to learn. They are usually bound for a term of years, by deed indented, 
 or indentures, to serve their masters, and be maintained and instructed by 
 them. This is usually done to persons of trade, in order to learn their 
 art or mystery ; but it may be done to husbandmen, nay to gentlemen and 
 others. And children of poor persons may be apprenticed out by the 
 overseers, with consent of two justices, till twenty-one years of age, to 
 
 * Blackstonc's Commentaries. 
 
RELATIONS IN PRIVATE LIFE. «5» 
 
 such persons as are thought fitting, who are also compellable to take them 
 Apprentices to trades may be discharged on reasonable cause, either at 
 their own or their masters' request, at the quarter sessions, or by one 
 justice, with appeal to the sessions. By the equity of the statute, they 
 may, if they think it reasonable, direct restitution of a proportion of the 
 money given with the apprentice ; and parish apprentices may be dis- 
 charged in the same manner by two justices. 
 
 A third species of servants are labourers, who are only hired by the day 
 or the week, and do not live intra moenia, as part of the family. Concerning 
 whom good regulations have been made in various acts of parliament: 1. 
 Directing that all persons who have no visible effects may be compelled 
 to work. 2. Defining how long they must continue at work in summer 
 and winter. 3. Punishing those who leave or desert their work. 4. 
 Empowering the justices at the sessions, or the sheriff of the county, to 
 settle their wages. And, 5. Inflicting penalties on such as either give, 
 or exact, more wages than are so settled. 
 
 There is a fourth species of servants, if they may be so called, being 
 rather in a superior or ministerial capacity; such as stewards, factors, 
 and bailiffs, whom the law considers as servants pro tempore. 
 
 II. The manner in which this relation, of service, affects either the 
 master or servant. And first, by hiring and service for a year, or ap- 
 prenticeship under indenture, a person gains a settlement in that parish 
 wherein he has served forty days. In the next place, persons serving an 
 apprenticeship of seven years to any trade, have an exclusive right to 
 exercise that trade in any part of England. 
 
 A master is permitted by the law to correct his apprentice for negligence 
 or other misbehaviour, so it be done with moderation ; though if the 
 master or his wife beat any other servant of full age, it is a good cause 
 of departure. But if any servant, workman, or labourer, assaults his 
 master or his wife, he shall suffer one year's imprisonment, and other 
 open corporal punishment, not extending to life or limb. By service all 
 servants and labourers, except apprentices, become entitled to wages: 
 according to their agreement, if menial servants; or according to the 
 appointment of the sheriff or county quarter sessions, if labourers or 
 servants in husbandry. 
 
 III. Let us inquire how strangers may be affected by the relation of 
 master and servant, or how a master may conduct himself towards others 
 on behalf of his servant, and what a servant may do on behalf of his 
 master. 
 
 In the first place, then, the master may maintain^ that is, abet and 
 assist, his servant in any action at law against a stranger. Whereas, in 
 general, it is an offence against public justice to encourage suits and 
 
fi60 RELATIONS IN PRIVATE LIFE. 
 
 animosities, by helping to bear their expense, and is called in law, main- 
 tenance. A master may also bring an action against any man for beating 
 or maiming his servant. But in such case he must assign, as a reason for 
 so doing, his own damage by the loss of his service ; and this loss must be 
 proved upon trial. A master may likewise justify an assault in defence 
 of his servant, and a servant in defence of his master. The master, because 
 he has an interest in his servant — the servant, because it is part of his 
 duty, for which he receives his tvages, to stand by and defend his master. 
 
 All those things which a servant may do on behalf of his master, seem 
 naturally to proceed on this principle, that the master is answerable for 
 his servant's acts, if done by his command either expressly given or implied; 
 for what he does by the agency of others, he is held to have done himself. 
 Therefore, if the servant commit any trespass by his master's command or 
 encouragement, the guilt lays on the master, who will also suffer the 
 punishment due. But the servant is not thereby excused. For as he is a 
 reasonable being, and accountable to God for his conduct, he is to obey 
 his master only in all his lawful commands. If an innkeeper's servant rob 
 his guests, the master is bound to restitution, as there is a confidence 
 reposed in him, that he will take care to provide honest servants, his 
 negligence is a kind of implied consent to the robbery. So likewise, if a 
 waiter at a tavern sells a man bad wine, whereby his health is injured, he 
 may bring an action against tlie master. Although the master did not 
 expressly order the servant to sell it to that person in particular, yet his 
 permitting him to draw and sell it at all, is, by implication, a general 
 command. 
 
 In the same manner, whatever a servant is permitted to do in the usual 
 course of his business, is equivalent to a general command. If I pay 
 money to a banker's servant, the banker is answerable for it. But if I 
 pay it to a clergyman's or physician's servant, who does not usually receive 
 money for his master, and he embezzles it, I must pay it over again. If 
 a steward lets a lease of a farm, without the owner's knowledge, the owner 
 must fulfill the bargain, for this is the steward's business. A wife, a friend, 
 a relation, who transact business for a man, are quoad hoc his servants; 
 and the principal must answer for their conduct. For the law implies, that 
 they act under a general command; and without such a doctrine as this, 
 no mutual intercourse between man and man could subsist with any tolerable 
 convenience. If I usually deal with a tradesman by myself, or constantly 
 pay him ready money, I am not answerable for what my servant takes 
 upon trust; for here is no implied order for the tradesman to trust my 
 servant. But if I usually send him upon credit, or sometimes upon credit, 
 and sometimes with ready money, I am answerable for all that he takes 
 
UNITED CHURCH OF ENGLAND AND IRELAND.' 661 
 
 up. For the tradesman cannot possibly distinguish when he comes by my 
 orders, and when upon his own authority. 
 
 Lastly, if a servant by his own negligence, does any damage to a stranger, 
 the master must answer for his neglect. If a blacksmith's servant lame a 
 horse while he is shoeing him, an action lies against the master, and not 
 against the servant. But in these cases the damage must be done while 
 he is actually employed in the master's service, otherwise the servant shall 
 answer for his own misbehaviour.* 
 
 THE UNITED CHURCH OF ENGLAND AND IRELAND. 
 
 The British constitution is composed of two distinct establishments. 
 The one civil and the other ecclesiastical. Of the civil establishment we 
 have already given copious details ; and we now proceed to explain the 
 ecclesiastical branch. Of the latter there are three established churches; 
 the churches of England and Ireland, which the 5th article of the Union 
 declares to be for ever united, and the church of Scotland, of which we 
 propose to treat separately. These ecclesiastical establishments, but 
 especially the former, are so closely interwoven with the state, that the 
 destruction of either must prove alike fatal to both. The connexion of 
 the church with the state, is not designed to make the church political, 
 but to preserve the state religious. 
 
 The government of the united church of England and Ireland is epis- 
 copal. She considers that a hierarchy in the church, like monarchy in 
 the state, preserves a due gradation of rank and authority, and con- 
 duces to order and peace. That the episcopal government preserves the 
 purity of the faith. That the authority of a bishop keeps heresy in awe, 
 or speedily checks its progress. That ecclesiastical, like republican equality, 
 obviously leads to contention and confusion. The clergy are the whole 
 body of clerks or ecclesiastics, who are taken out from among the people 
 as the Lord's lot or share, as the tribe of Levi was in Judea, and are 
 separated from the noise and bustle of the world, that they may have 
 leisure to spend their time in the duties of the Christian religion. The 
 preservation of both the civil and religious establishment is, therefore, the 
 interest of every member of the community, and the especial duty of those 
 to whose superintending care the general welfare is intrusted. But these 
 establishments, though all persons have a common interest in their pre- 
 servation, differ much in respect of the claims which they severally possess. 
 The civil establishment has a legal title to duty and submission from every 
 
 * Blackstoue's Coinmcnlaries. 
 
662 UNITED CHURCH OF ENGLAND AND IRELAND. 
 
 subject in the realm. Disaffection towards this part of the constitution, 
 when manifested by outward acts, is a crime punishable by the severest pen- 
 alties of the law. In return for the protection afforded by the civil govern- 
 ment, the obligation of allegiance is contracted; an obligation which nothing 
 can discharge, but the payment of the great debt of nature — which can- 
 not be superseded by change of residence, or by the formation of new 
 engagements — and which binds every one to whom it attaches, without 
 exception, to submission, fidelity, and even to active exertion, whenever 
 his exertions are wanted for the protection of his lawful government, or 
 the security of his native soil. In a word, allegiance to the civil govern- 
 ment is the positive and permanent duty of every person, whom birth has 
 placed in a state of subjection to that government. To insinuate, there- 
 fore, that any one is deficient in a sense of this duty, or reluctant in its 
 performance, is to cast a reproach upon him of the most disgraceful 
 nature. But the case is very different with regard to the ecclesiastical 
 part of the constitution. Tiie law of the land leaves every one at liberty 
 to separate from the established church, without being subject to any 
 kind of penalty, censure, or reproach. That church has indeed high and 
 transcendent claims, but they are not of a temporal nature, nor are they 
 supported by temporal sanctions. Considered merely as a national esta- 
 blishment — as a part of the constitution — it claims only to be entitled to 
 provision for its worship and its ministers, and to protection against all 
 other religious professions. This is the extent of its engagement with the 
 civil magistrate ; who, on his part, on entering into such an engagement, 
 has no other object but to keep alive a sense of religion, with a view to the 
 well-being of society. Beyond this the province of the civil magistrate 
 does not extend. It is his duty to support a religious establishment, in 
 order to preserve his people from the fatal effects of irreligion. An 
 established church carries religion to the most remote comer of the land. 
 It carries it into the palace of the monarch, and tlie cottage of the peasant. 
 The land pays the expense, and the poor man enjoys the benefit without 
 money and without price- But it is also his duty to remember, and in 
 this country he does remember, that religion is a concern between God 
 and the soul, in which he is not made an arbiter; and that it does not 
 belong to human authority to judge for man in such matters, or to restrain 
 him from worshipping God according to the dictates of his own conscience. 
 But the established church of England possesses a far higher character 
 than that of an establishment. A character which seems to be entirely 
 overlooked by those persons who separate from her communion, who 
 frequently explain and attempt to justify their separation, on the ground 
 that they vindicate their religious freedom by dissenting from a church, 
 which, being established by the authority of tlie civil magistrate, presumes. 
 
UNITED CHURCH OF ENGLAND AND IRELAND. 663 
 
 as they say, under that authority, to prescribe a common standard of faith 
 and worship. Whilst, however, to such persons the established church 
 appears only as a temporal institution, as a mere creature of the state, 
 she is essentially a spiritual society, and as such, she claims to be a part 
 of that kingdom, which its founder and sovereign declared to be " not of 
 this world." To be a genuine branch of that church, which for ages 
 after its institution subsisted independently of the civil power, and which 
 has the assurance of its divine Master and Head, " that the gates of hell 
 shall not prevail against it.'* It is in this character, that is to say, as a 
 church and not as an establishment, that she offers herself as a guide to 
 faith and worship. She claims, for that purpose, the authority of a 
 spiritual commission from Christ himself. Her alliance with the state is 
 purely incidental. That alliance is, indeed, marked by internal symbols 
 of an imposing nature. It invests her superior clergy with rank and 
 dignity. It seats her bishops among the peers of the realm. It allots 
 the most durable and magnificent edifices to the celebration of her worship. 
 It binds the very soil to furnish a provision for her clergy. It not only 
 endows her with revenues, but invests her with temporal authority in her 
 ecclesiastical courts. But these are merely adventitious circumstances, 
 indicative indeed of her character as an establishment , but wholly inde- 
 pendent of her character as a church. They may cease to exist, nay, her 
 alliance with the state may be entirely dissolved, while her faith and wor- 
 ship, her ordinances and discipline, which are her essentials as a church, 
 will undergo no change. Such was the case at the time of the grand 
 rebellion under Cromwell, when the church establishment was overthrown, 
 but the church itself continued to exercise, as before, all her spiritual 
 functions, though under circumstances of great embarrassment, and after 
 a while she was reunited to the state, and was again invested with secular 
 appendages. An exact model of what she was, during this period of 
 separation, and of what she would again be, were such a separation to 
 occur, may be seen at the present day in the episcopal churches of Scot- 
 land and North America. Each of which acts under the same authority, 
 professes the same faith, maintains the same discipline, and observes the 
 same liturgical forms, as the established church of England. 
 
 When, therefore, the established church promulgates a rule of faith 
 and worship, it is to be remembered that she acts, not in her temporal 
 and incidental character, as an establishment, but in her spiritual, appro- 
 priate, and permanent character, as a church. In which character she 
 claims to be a divinely appointed guide, duly authorized by virtue of an 
 apostolical commission, to show to the people of this land " the way to 
 salvation." Surely then, it behoves those who separate from her com- 
 munion, to examine well the grounds on which such a claim is founded. 
 
664 UNITI^D CHURCH OF ENGLAND AND IRELAND. 
 
 For if the church be really a divine institution, separation from it cannot 
 fail to involve an awful responsibility. The freedom allowed, by law, in 
 this country, to every one to worship God according to the dictates of his 
 conscience, can extend no farther than freedom from human control, in 
 the choice and exercise of religion. But wliilst in religious worship man 
 is, and ought to be, unrestrained by man, yet he is bound, in this respect, 
 as in every other, to obey God. It is his duty to worship God, as God 
 has appointed to be worshipped. Conscience, instead of finding an excuse 
 for disobedience to the divine will, is itself subject to that will, and must 
 be informed and regulated by it. If, therefore, God has instituted a 
 church, in the which it is his pleasure to be worshipped, it cannot be a 
 matter of indifference whether a man worship in that church, or wander 
 from it.* 
 
 It may not, therefore, be uninteresting to recapitulate, as briefly as 
 possible, the first introduction of Christianity into England; and at same 
 time to show the origin, corruption, and reformation of its church. 
 
 It is allowed on all hands, that Christianity was received in England 
 during the lives of the apostles. Eusebius says, that " some of the 
 apostles passed over the ocean to those which are called the British islands." 
 In another place, the same author affirms, that " some of the apostles 
 preached the gospel in the British islands." Theodoret, another ancient 
 and learned author, says, that " St Paul brought salvation to the islands 
 that lay in the ocean." That Britain is meant by this expression, seems 
 clear, from his having mentioned Spain and Gaul in connexion with it. 
 The latter being only divided from the " islands that lie in the ocean" by 
 a narrow channel. He also says, that St Paul, after his release at Rome, 
 carried the light of the gospel to other nations." Again, that " St Paul, 
 after his imprisonment, preached the gospel in the Western parts." Here 
 the British islands are to be understood. This assertion is corroborated 
 by the testimony of Clemens Romanus, who says that " St Paul preached 
 righteousness through the whole world, and in so doing went to the utmost 
 bounds of the West." At the time when Clement flourished, *' whose 
 name is written in the book of life,"f Britain was undoubtedly the " utmost 
 bounds of the West." It is called " ultimam occidentis insulam^" by 
 all the ancient Roman writers. In fixing the boundaries of the gospel, 
 Arnobius mentions the Indies as the eastern, and Britain as the extreme 
 western boundaries. Gildas, the oldest British historian, affirms, " on 
 sure grounds and certain knowledge," that St Paul constituted the church 
 in Britain " in the time of Tiberius Cesar." The emperor Tiberius died 
 in the year of Christ 39, according to Cardinal Baronius, the great 
 
 * Claims of the Established Church. \ Phil. iv. 3. 
 
UNITED CHURCH OP ENGLAND AND IRELAND. 665 
 
 Roman chronologer. In another place Gildas also says, that " the gospel 
 was received here before the fatal defeat of the Britons by Suetonius 
 Paulinus." This defeat happened in the seventh year of the emperor 
 Nero. St Paul being then at liberty after his imprisonment at Rome, had 
 sufficient time and convenience to have settled a church in Britain. In 
 one of his epistles, St Jerome says, that " France, and Britain, and Africa, 
 and Persia, and the East, and India, and all barbarous nations, adore one 
 Christ, and observe one rule of truth." Venantius, in his Life of St 
 Martin, says, 
 
 St Paul did pass the seas, where isle 
 Makes ships in harbour stand, 
 Arriving on the British coast, 
 And cape of Thule land. 
 
 It appears, then, that the Christian faith v^^as introduced, and a church 
 planted in South Britain, now called England, by St Paul, the great 
 apostle of the Gentiles. It is unreasonable to suppose that he would 
 settle a different order of church government in Britain than he had 
 established everywhere else. We have Jerome's testimony, that every 
 country observed the same rule of truth. All the churches planted by 
 the apostles were in full communion with each other. All " continued 
 steadfastly in the apostles' doctrine and fellowship, and in breaking of 
 bread, and in prayers." While the Roman empire stood, the intercourse 
 between every part of it was easy and frequent, and therefore any difference 
 in doctrine or discipline could be easily ascertained. But we read of none. 
 We must conclude, therefore, that the government of the British churches 
 would be the same as the churches of all other countries, with whom they 
 were in full communion. " This government," says Dr Lloyd, a learned 
 antiquary, " was unquestionably a diocesan episcopacy, not only in name, 
 but in authority, the same as is now in these kingdoms."* We see, then, 
 that a branch of the Christian church was introduced into Britain by the 
 apostle Paul. Bishops descending from him sat in some of the earliest 
 councils. At the council of Aries, in France, in the year 3 14, Restitutus, 
 bishop of London, with two other bishops, sat and subscribed the canons. 
 This council was held soon after the tenth general persecution, and before 
 there could be any of those temptations of secular greatness, which are 
 said to have introduced corruptions, and altered the primitive government 
 of the church. There were some British bishops* present at the council 
 of Sardica, in the year 347, and also at the council of Ariminum. 
 
 After the final departure of the Romans, the ancient British were 
 reduced to great distress by their warlike neighbours in the north. They 
 
 * Dr Lloyd's Historical Account of Churcli Government, as it was in Great Britain and 
 Ireland, when they first received the Christian religion. 
 
 4 P 
 
666 UNITED CHURCH OF ENGLAND AND IRELAND. 
 
 imprudently invited the Saxons into the kingdom to assist them. The 
 Saxons were heathens. They drove back the Picts, but they made them- 
 selves masters of the country of their allies. They massacred the greater 
 part of the Britons, and the survivors took shelter in Wales. The Britons 
 in Wales continued Christians, and their church was in a very flourishing 
 condition in the year 596. In that year, Gregory the Great, bishop of 
 Rome, sent Augustine and forty monks into Kent, for the purpose of 
 converting the Saxons, who were pagans, to the Christian faith. The 
 constant hostilities which the Saxons maintained against the Britons, would 
 create an aversion to receiving Christianity from them. Ethelbert, king 
 of Kent, had married Bertha, daughter of Caribert, king of Paris, and a 
 Christian ; so that Augustine did not experience so much difficulty as 
 might have been expected. Ethelbert, well disposed himself towards 
 Christianity, assigned the missionaries a habitation in the isle of Thanet. 
 This favourable reception encouraged Augustine to preach the gospel to 
 the Saxons, which he and his successors did with such success that the 
 greater part of the Saxons were converted in the course of seventy years. 
 Augustine went over into France, and received consecration from the 
 archbishop of Aries. Gregory had appointed him archbishop of Canter- 
 bury, when he despatched him from Rome. At this time, the British 
 church was confined to Wales. x\ugustine proposed to the British bishops 
 that they should acknowledge the Roman pontiff as their head : this they 
 peremptorily declined to do. The British church maintained its inde- 
 pendence on Rome for many years. For 1100 years the British bishops 
 were elected and consecrated by their own bishops, without any connexion 
 with Rome or Canterbury. " Always," says Giraldus Cambrensis, " until 
 the full conquest of Wales by Henry I., the bishops of Wales consecrated 
 the archbishop of St David's, and he likewise was consecrated by the other 
 bishops his suffragans, without professing any manner of subjection to 
 any other church." There was no difference in faith, in doctrine, or in 
 discipline, between the British and the Saxon churches, their dispute was 
 solely about the supremacy of the bishop of Rome. Parsons, the Jesuit, 
 allows, " that the faith which St Austin brought, and that which the 
 Britons had before, must needs be one and the self-same in all material 
 and substantial points." When Henry I. subdued Wales to the dominion 
 of the crown of England, he also subjected the ancient British church to 
 the supremacy of Home. From this time the British merged into the 
 Anglo-Saxon church, and remained in subjection to Rome till the Re- 
 formation. If the Saxons had happily received their Christianity from the 
 Britons, the Romish slavery might have been avoided. 
 
 Ethelbert endowed the see of Canterbury with large revenues. He 
 likewise established the dioceses of Rochester and London. The other 
 
UNITED CHURCH OF ENGLAND AND IRELAND. 667 
 
 kings of the heptarchy followed his example, and erected bishoprics equal 
 in extent with their kingdoms. This in some measure accounts for the 
 unequal size of the dioceses, which were of the same extent as the domi- 
 nions of their respective kings. The bishops became their councillors, 
 and were always summoned to take part in the national councils. This 
 18 the origin of the connexion between church and state, and of the 
 infusion of a Christian spirit into the legislature. For many years this 
 connexion subsisted with much harmony. But after the moral world 
 was subdued, and the papal tyranny completely established, the popes 
 soon discovered, that to secure their own dominion, it was necessary to 
 sever the alliance which had hitherto subsisted between the church and the 
 state. They represented the church as independent, and its head to be 
 the pope. His creatures struggled hard to maintain this disunion, but 
 many and severe were the repulses the papal power met with in England, 
 and many laws were enacted to restrain his usurped power. His usur- 
 pations were continued till the year 1535, a period of 940 years, when 
 the clergy, the monarch, and the people, could bear his tyranny no longer. 
 Henry VIII. threw off the yoke, declared that the pope was not the head 
 of the church of England, but that the king, as in times past, was supreme 
 governor over all persons, and in all causes, ecclesiastical as well as civil. 
 This was the first step towards a reformation. The bishops Oranmer, 
 Ridley, Latimer, and others, are not i\\e founders of the church of England ; 
 they are only her reformers. They corrected all the errors in doctrine, 
 which during an usurpation of nine centuries the church had imbibed from 
 popery. They condemned the doctrine of transubstantiation, the worship 
 of saints and images, communion in one kind, and the constrained celibacy 
 of the clergy. They thus restored the church to its original state of 
 purity and perfection. " They did not," says Mr Hook, " attempt to 
 make a new, their object was to reform, the church. They stripped 
 their venerable mother of the meretricious gear in which superstition had 
 arrayed her, and left Iier in that plain and decorous attire with which, in 
 the simple dignity of a matron, she had been adorned by apostolic hands."* 
 The church of England can trace her origin up through the apostles to 
 our Saviour himself. To use the words of Mr Palmer, " the orthodox 
 and undoubted bishops of Great Britain and Ireland are the only persons 
 who in any manner, whether by ordination or possession, can prove their 
 descent from the ancient saints and bishops of these isles. It is a positive 
 fact, that they, and they alone, can trace their ordinations from Peter and 
 Paul through Patrick, x\ugustine, Theodore, Colman, Columba, David, 
 Cuthbert, Chad, Anselm, Osmund, and all the other worthies of our 
 church. "t 
 
 * Hook's Serm. on the Church. f Olivines Liturgise, ii. p. 25-L 
 
668 UNITED CHURCH OF ENGLAND AND IRELAND. 
 
 At the Reformation, therefore, the church of England returned to the 
 state of purity which she enjoyed previous to the usurpation of the bishop 
 of Rome. There was no new church formed, the reformers restored the 
 old one, swept and garnished from the rubbish of Roman superstition. 
 The church did not introduce a new religion, she only revived the old. 
 It has been frequently asked .where the protestant religion was before the 
 Reformation, and it has been as appropriately answered, in the Bible, 
 where it is now, and where alone all true religion is to be found. The 
 protestant church of England is more ancient than the modern church of 
 Rome, and their accusing the church of England of being heretics is a 
 bold and groundless charge, which she justly despises and protests against. 
 For " after the way which they call heresy," the church of England 
 *' worships the God of our fathers, believing all things which are written in 
 his holy word." 
 
 The essentials of faith, distinctly considered, are most advantageously 
 taught, and most securely preserved, in the form of creeds. Such forms 
 are calculated not only to inculcate a knowledge of the faith, by exhibiting 
 in one point of view its leading and fundamental articles, but also to mark 
 the important boundary between fundamental doctrines and such as are 
 not fundamental. They serve, moreover, as standing records of primitive 
 doctrine, to guard the pure faith from adulteration. Still following the 
 example of the primitive church, the church of England has in this manner 
 declared its faith, by the adoption of three creeds; which she receives and 
 teaches on the sole authority of the word of God. Though successively 
 introduced, these creeds were all in general use in the primitive church, 
 and two of them were meant to counteract certain alarming corruptions 
 of the Christian doctrine. In which point of view it cannot be denied, 
 that they are now to the full as necessary as ever. 
 
 Besides the adoption of creeds, for the inculcation and preservation of 
 its fundamental doctrines, the church of England has also deemed it ne- 
 cessary to frame articles of religion, upon points both fundamental and not 
 fundamental. And she pursues with regard to these different classes of 
 doctrine, a course which corresponds precisely with their respective im- 
 portance. It is peculiar to fundamental doctrines, that a belief in them is 
 essential to salvation. It is therefore of the first importance not merely 
 to teach these doctrines systematically as fundamental articles of the 
 Christian faith, (which is the object in the creeds,) but also by a more 
 precise exposition than creeds are calculated to convey, to guard them 
 against error: — for, in such cases, error is heresy. The church has 
 endeavoured to effect this object by the articles, which explain its doctrines 
 on fundamental points, in terms so clear and explicit, as to be susceptible 
 of no latitude of construction, and to leave no room for difference of 
 
UNITED CHURCH OF ENGLAND AND IRELAND. 669 
 
 opinion. It is also the effect of such precision to bar the door against 
 controversy. No controversy upon fundamental points can possibly arise 
 among those who conscientiously sign the thirty-nine articles. But non- 
 fundamental doctrines are of a subordinate importance. They are not 
 among the essentials of the Christian faith. Differences of opinion, with 
 regard to these, though liable to the imputation of error, do not authorize 
 the charge of heresy. In the exposition of these doctrines, therefore, the 
 church of England, instead of employing the same precision of language, 
 as in the other case, declares its faith in terms which do not preclude a 
 difference of construction, and confines itself as nearly as possible to the 
 general language of Scripture. By pursuing sucli a course, it enables 
 persons, who differ from each other in their views upon such subjects, 
 alike to subscribe these articles. It seems indeed to have been the anxious 
 wish of those eminent divines and reformers who framed the articles, that 
 none who agree with the church in fundamentals should be kept out of its 
 communion by differences upon points of minor importance. But the 
 generality of expression thus employed, with regard to such points, left 
 the subject open to controversy. In order, however, to guard against 
 such a result, an express declaration has been prefixed to the articles in 
 the form of a preamble. It states that they were agreed upon for the 
 " avoiding of diversities of opinion, and for the establishing of consent, 
 touching true religion."* 
 
 " Confessions of faith are necessary. They ought never to be ambiguous; 
 but also they ought not to be too minute, and still less ought they to 
 maintain the uncharitable and exclusive spirit of a party. The church of 
 England asserted in her articles the great truths of religion, and bore her 
 testimony against the popish and other leading errors of the day. But 
 she hears no name, and above all, she is not actuated, in such her code 
 of doctrine, by the partial spirit of any sect. She asserts the truth as slie 
 holds it, — such as men of very various views in matters of detail, and in 
 modes of explanation may entertain, without disturbing the public peace 
 and the church's unity. The church is the spouse of Christ, his mystical 
 body ; and every sound branch of it is the common and impartial parent 
 of Christians, not the fondling or fosterer of a party. This character of 
 perfect impartiality, belongs remarkably to the church of England. She 
 has opened her arms as wide as the character of a faithful witness of the 
 truth permits, in order to embrace all who, with many differences of 
 sentiment, agree in the essential truths of sound religion."f 
 
 It is not, however, so much to the Articles as to the Liturgy, that the 
 members of the church of England in general are' to look for an exposi- 
 
 * Claims of the EslaWishcd Cliurch. f Dr Walker's Life of Archbishop Whitgift. 
 
670 UNITED CHURCH OF ENGLAND AND IRELAND. 
 
 tion of its doctrines- The former, important as is their object, are of 
 limited application, being intended only for the consideration of the com- 
 paratively few, who in different situations may be called upon to subscribe 
 them. But the liturgy is intended for general use. Its creeds are to be 
 repeated by ex)ery member of the church. All its mernbers are required 
 regularly to join in its forms of worship, and to participate in all its 
 ordinances. In the liturgy, then, whatever the church deems it necessary 
 for a Christian to believe or to practise, is to be found incorporated with 
 its congregational services, and familiarized in its forms of devotion. In 
 short, it is to the liturgy of the reformed church, that its members are 
 chiefly to look for its interpretation of Scripture upon all points of vital 
 importance. The great pains taken by the reformers in framing and 
 revising the liturgy, were proportioned to the vast importance of the 
 object. This work engaged the assiduous attention of successive com- 
 mittees of bishops and other learned divines for many years, who, taking 
 the Scriptures for their guide, and the primitive church for their model, 
 carefully retained the services which had been in use in the church, and 
 rejected the superstitions which had been superadded thereto by the church 
 of Rome. After undergoing many revisions, the Book of Common 
 Prayer, in its present form, was the result of the labours of these pious 
 and learned men, and its production is to be considered as the deliberate 
 act of the church in its collective capacity; as upon its completion, it 
 received the unanimous sanction, and indeed the actual signature of both 
 houses of convocation. 
 
 The prayers of the church of England are generally of great antiquity. 
 Many of them are copied literally from the oldest liturgies, and the rest are 
 formed upon their model. And it is worthy of remark, that the collects, 
 (prayers,) with their epistles and gospels, are proved from many concurrent 
 testimonies, to have been used on the same Sundays and holidays to which 
 they are now appropriated, for above thirteen hundred years. The Te 
 Beum and other hymns are of no less ancient usage. That wliich is called 
 the Apostles' Creed, if it was not drawn up by tlie apostles themselves, 
 seems, the greatest part at least, to have been extant in their times j for 
 most of its articles are to be found in the epistles of Ignatius, a disciple of St 
 John. This is mentioned simply, because if antiquity be ever allowed to 
 set the stamp of authority, it must be more particularly in the institutions 
 of religion. In which the nearer we can approach to the days of the 
 apostles, the better we may hope to retain the pure and uncorrupted 
 ordinances of the church of Christ.* 
 
 The Liturgy, or Common Prayer of the Church of England, as the 
 
 * Claims of the Established Church, 
 
UNITED CHURCH OF ENGLAND AND IRELAND. 671 
 
 sacred echo of the Holy Scriptures, repeats all the truths of revelation. 
 In it the people confess that there is no health in them, and pray that they 
 may be restored to spiritual health. They are assured that the Almighty 
 desireth not the death of a sinner, but rather that he may turn from his 
 wickedness and live. They are taught that God has given his ministers 
 power to declare, that He pardoneth all that truly repent, and unfeignedly 
 believe his holy word. In it they acknowledge God to be the Lord, 
 the Father of an infinite majesty; the honourable, true, and only Sonj 
 and also the Holy Ghost, the Comforter. By it they pray to God to help 
 his servants whom he hath redeemed. He is there owned to be the Author 
 of peace, and that in the knowledge of him standeth our eternal life. He 
 is petitioned to send down upon us the healthful Spirit of his grace, and 
 to pour upon us the continual dew of his blessing. They declare that from 
 him all holy desires, all good counsels, and all just works do proceed. 
 By it they implore deliverance from all dangers, ghostly and bodily. They 
 entreat salvation by the means of his appointment; and they beseech him 
 to hear them, and to bestow all things that be needful both for their souls 
 and bodies. By the liturgy they praise him for the noble works which he 
 did in old time. They declare that they put their whole trust and con- 
 fidence in his mercy. They beg that he will make his ways known unto 
 all men; and that he will lead all who call themselves Christians into the 
 way of truth. In it he is thanked for his loving-kindness, and blessed for 
 creation and preservation, but above all for redemption, and for the means 
 of grace. He is besought to give us such a sense of all his mercies that 
 we may be unfeignedly thankful, and shew forth his praise not only with 
 our lips, but in our lives. And finally, by the liturgy they give glory to 
 the Father, Son, and Holy Ghost, for all the hopes entertained, for all the 
 blessings enjoyed, and for all the wonders that have been wrought on our 
 account.* 
 
 But, to use the language of the pious Mr T. G. Taylor, it is not for 
 its antiquity alone that I respect and venerate the public worship of the 
 church. I am struck with its excellence; I admire the beauty, the order, 
 the fitness of the whole service ; and to me it appears to bear internal 
 marks of its divine original ; for it approaches nearest to the sublime 
 simplicity and inspiration of Scripture. I know not any human composi- 
 tion which in chastity, in grandeur, in energy, in sublimity of thought, in 
 simplicity of expression, can be compared to the established liturgy of the 
 church of England. There is in its prayers such chastened and sober 
 dignity, such unaffected humility, such a sanctity befitting the temple of 
 God, such fire of devotion, such inspiration of faith, hope, and charity, 
 
 * Writer in the Edinburgh Ecclesiastical Journal, vol. ii. p. 13. 
 
673 UNITED CHURCH OF ENGLAND AND IRELAND. 
 
 such conciseness and yet such fulness, that nothing short of inspiration has' 
 ever attained to so near a resemblance of that perfect form of prayer, which 
 our divine Master has left us for our use, and for our pattern. But I had 
 rather speak on the authority of others than oflPer opinions of my own. 
 Though all churches in the world, says Dr Comber in his History of 
 Liturgies, have and ever had forms of prayer, yet none was ever blessed 
 with so comprehensive, so exact, and so inoffensive a composure as ours; 
 which is so judiciously contrived, that the wisest may exercise at once their 
 knowledge and their devotion ; and yet so plain, that the most ignorant 
 may pray with understanding. So full, that nothing is omitted which is 
 fit to be asked in public; and so particular, that it compriseth most things 
 which we would ask in private; and yet so short, as not to tire any that 
 hath true devotion. Its doctrine is pure and primitive; its ceremonies so 
 few and innocent, that most of the Christian world agree in them. Its 
 method is exact and natural, its language significant and perspicuous; 
 most of the words and phrases being taken out of the Holy Scriptures, 
 and the rest are the expressions of the first and purest ages; so that who- 
 ever takes exception at these, must quarrel with the language of the Holy 
 Ghost, and fall out with the church in her greatest innocence. In the opinion 
 of the most impartial and excellent Grotius, (who was no member of, nor 
 had any obligation to that church,) the English liturgy comes so near the 
 primitive pattern, that none of the reformed churches can compare with it. 
 Many well meaning people, from ignorance, imagine that the church 
 of England rests wholly on the outward forms of religion, and entirely 
 throws off all inspiration of the Holy Spirit. I will therefore briefly state 
 what sort of inspiration she allows and prays for. She constantly teaches 
 that all the saving graces are wrought in our hearts by the inspiration of 
 the Holy Ghost. So much so, that of ourselves we are not able so much 
 as to think a good thought. That this inspiration is as necessary to our 
 bringing forth good works, as the influence of the sun is, in producing 
 the fruits of the earth. That whatever may bear the appearance of good 
 works in us, which is not wrought by this inspiration, is neither good nor 
 acceptable to God. *' Works done before tlie grace of Christ and the 
 inspiration of his Spirit, are not pleasant to God — yea rather for that 
 they are not done as God hath willed and commanded them."* The first 
 question demanded by the bishop in the ordering of deacons, is. Do you 
 trust that you are inwardly moved by the Holy Ghost, to take upon you 
 this office ? The same is demanded in the ordination of priests and 
 bishops ; and in consecrating a bishop, the officiating bishop says, " Re- 
 ceive the Holy Ghost for the office and work of a bishop in the church of 
 God." To specify every place where the inspiration of the Holy Spirit 
 
 * Art. xiii. 
 
UNITED CHURCH OF ENGLAND AND IRELAND. 673 
 
 is witnessed and prayed for, would require the whole liturgy to be tran- 
 scribed. The whole of which shows the doctrine of the church of England 
 to be, that the inward is the soul of religion, without which the outward 
 form is but a dead carcase, and is offensive to God. In the exhortation 
 before the communion, she earnestly inculcates upon all her members, 
 that if they be not thus spiritually prepared, all the outward ordinances 
 will avail nothing : " for otherwise the receiving of the holy communion 
 doth nothing else but increase your condemnation." It is certain that set 
 forms of prayer were commanded, and even dictated by God to his ancient 
 people the Jews, were enjoined by our Saviour himself, were practised by 
 the apostles and the primitive church, some of whose liturgies are still 
 extant. The inspired author of the Apocalypse asserts that the cliurch 
 triumphant " rest not day and night to give glory, and honour, and thanks, 
 to him that sat on the throne," by a set form of words, the noise of whose 
 voices was " as it were the voice of a great multitude, and as the voice of 
 many waters, and as the voice of mighty thunderings." 
 
 The doctrine of the church of England is in all respects catholic and 
 orthodox. The Nicene or Constantinopolitan creed is inserted into the 
 most solemn office of her liturgy. What the four first general councils 
 adjudged to be heresy, she holds to be so also. Besides the creeds, which 
 every man repeats, the clergy subscribe the Thirty-nine Articles of 
 Religion. As Bishop Jewell's Apology is justly esteemed an authority, I 
 here transcribe his chapter " containing the doctrine received in the church 
 of England." 
 
 " 1. We believe that there is one certain nature and divine power, which we call God, 
 That this is distinguished into three equal Persons, the Father, Son, and Holy Ghost ; 
 all of the same power, of the same majesty, of the same eternity, of the same divinity, and 
 of the same substance. And although these three persons are so distinguished, that the 
 Father is not the Son, nor the Son the Holy Ghost or the Father, yet there is but One God. 
 That this One God created heaven and earth, and whatever is contained within the cir- 
 cumference of the heavens. 
 
 " 2. We believe that Jesus Christ, the only Son of the eternal Father, as it had been 
 decreed before the beginning of all things, when the fulness of time came, took our flesh 
 and perfect human nature of that blessed and pure Virgin, that he might reveal to men 
 that hidden and secret will of his Father, which was concealed from all former ages and 
 generations. And that in this human body he might jfinish the mystery of our redemption, 
 and might nail our sins to his cross, and the obligation which lay against us. 
 
 " 3. For we believe that for our sakes he died, was buried, descended into hell, and the 
 third day by a divine power returned to life, and arose, and after forty clays, in the sight of 
 his disciples, ascended into heaven, that he might fill all thiiios, and that the very body in 
 which he was born, in which he conversed, in which he was di spised, in which he had suf- 
 fered most grievous torments, and a most direful death, in which he rose and now ascended 
 to the right hand of his Father, was placed above all principalities and power, and every 
 name which is mentioned, not only in this world, but in that wliich is to come, in majesty 
 and glory. And we believe that he doth now sit there, and shall sit there till all things are 
 fu Hilled. And although the majesty and divinity of Christ is diflused everywhere, yet his 
 body ought to be in one place. We believe that although Christ added majesty to his body, 
 
 4 Q 
 
674 UNITED CHURCH OF ENGLAND AND IRELAND. 
 
 yet he took not from it the nature of a body. Nor is Christ to be so asserted to be God, 
 that we should deny him to be man also. 
 
 " 4. And from thence we believe Christ shall return to exercise a general judgment, as 
 well upon those he shall then find alive, as upon all that are then dead. 
 
 " 5. We believe that the Holy Ghost, who is the Third Person in the Holy Trinity, is 
 true God, not made, nor created, nor begotten, but proceeding from both, that is, from the 
 Father and the Son, in a way neither known to mortals, nor possible to be expressed by 
 them. We believe that it is he who softens the hardness of man's heart, when he is received 
 into their hearts by the saving preaching of the gospel, or by any other way whatsoever: 
 that it is he who enlightens them, and leads them to the knowledge of God, into all the 
 ways of truth, into a perfect newness of h'fe, and a perpetual hope of salvation. 
 
 " 6. We believe that there is one church of God. That it is not confined as it was hereto- 
 fore to the Jewish people in one angle or kingdom, but that it is catholic and universal, and 
 so diffused or spread over the face of the whole earth, that there is no nation which can 
 justly complain that it is excluded, and cannot bo admitted into the church and people of 
 God. That this church is the kingdom, the body, and spouse of Christ. That Christ is the 
 only prince of this kingdom. And that there is in the church divers orders of ministers. 
 That there are some who are deacons, others who are presbi/ters, and others who are bishops, 
 to whom the instruction of the people, and the care and management of religion is commit- 
 ted. And yet there neither is, nor is it possible there should be, any one man who has the 
 care of this whole catholic church, for Christ is ever present with his church, and needs not 
 a vicar, or sole and perfect successor. And that no mortal man can in his mind contain all 
 the body of the universal church, that is, all the parts of the earth, much less can he reduce 
 them into an exact order, and rightly and prudently administer its affairs. That * the 
 apostles,' as St Cyprian saith, ' were all of equal power and authority, and that all the rest 
 were what St Peter was. That it was said to all alike. Feed : to all, Teach ye the gospel.' 
 And that as St Jerome saith, ' all bishops, wheresoever they are settled, whether it be at 
 Rome or Eugubium, at Constantinople or Rhegiura, they are of equal worth, and of the 
 same priesthood.' And as St Cyprian saith, ' there is but one episcopacy, and each of 
 them hath a perfect and entire share of it.' And that according to the judgment and 
 sentence of the council of Nice, the bishop of Rome hath no more authority in the church 
 than the other patriarchs of Alexandria and Antioch. That the bishop of Rome who now 
 endeavours to draw all the ecclesiastical authority to himself alone, if he doth not his duty, 
 that is, if he doth not administer the sacraments, if he doth not instruct the people, ad- 
 monish and teach, he is not to be called a bishop, or indeed a presbyter. For as St Augustine 
 saith, ' bishop is the name of a work or office, and not a title of honour :' so that he that 
 would usurp an unprofitfible pre-eminence in the church is no bishop. But then that the 
 bishop of Home or any other person should be the head of the whole church, or an universal 
 bishop, is no more possible, than that he should be the bridegroom, the light, the salvation, 
 and the life of the church. These are the privileges and titles of Christ alone, and do 
 properly a;id only belong to him. But the bishop of Rome, because he now desires to be so 
 called, and usurps a power which belongs not to him, besides that he acts directly against the 
 ancient councils and the fathers, if he dares believe St Gregory, one of his own predecessors, 
 he has taken upon him an arrogant, profane, sacrilegious, antichristian title. He is therefore 
 the king of pride, Lucifer, one that sets himself above his brethren, who has denied the faith, 
 and is thereby become the forerunner of antichrist. 
 
 " 7. We say that a minister ought to have a lawful call, and be duly and orderly pre- 
 ferred in the church of God, and that no man ought at his own will and pleasure to intrude 
 into the sacred ministry. 
 
 " 8. We say that Christ has given to his ministers the power of binding and loosing, of 
 opening and shutting. And we say that the power of loosing consists in this, that the 
 minister, by the preaching of the gospel offers to dejected minds and true penitents, through 
 the merits of Christ, absolution ; and doth assure them of a certain remission of their sins^ 
 and the hopes of eternal salvation. Or secondly, reconciles, restores, and receives into the 
 congregation and unity of the fuithful, those penitents, who by any grievous scandal, or known 
 
UNITED CHURCH OF ENGLAND AND IRELAND. C76 
 
 and public offence, have offended the minds of their brethren, and in a sort alienated and 
 sepai^ted themselves from the common society of the church and the body of Christ. And 
 we say the minister doth exercise the power of binding or shutting, when he shutteth the 
 gate of the kingdom of heaven against unbelievers and obstinate persons, and denounceth to 
 thsm the vengeance of God and eternal punishment ; or excludeth out of the bosom of the 
 church, those that are publicly excommunicated. And that God himself doth so far approve 
 whatever sentence his ministers shall so give, that whatsoever is either loosed or bound by 
 their ministry here on earth, he will in like manner bind or loose, and confirm in heaven. 
 The key with which these ministers do shut or open the kingdom of heaven, we say with 
 St Chrysostom, is ' the knowledge of the Scripture :' with TertuUian, is the ' interpreta- 
 tion of the law-,' and with Eusebius, is the ' word of God,' We say the disciples of Christ 
 received this power from him, not that they might hear the private confessions of the people, 
 and catch their whispering murmurs, as the popish priests everywhere now do, but that they 
 might go and preach and publish the gospel, that so they might be a savour of life unto life 
 to them that did believe, and that they might also be a savour of death unto death to those 
 that did not believe : that the minds of the pious who were affrighted with the sense of their 
 former ill lives and errors, after they beheld the light of the gospel and believed in Christ, 
 might be opened by the word of God, as doors are with a key. And that the wicked and 
 stubborn, who would not believe and return into the way, might be left shut up and locked, 
 and as St Paul expresses it, might • wax worse and worse.' This we take to be the mean- 
 ing of the keys ; and that in this manner the consciences of men are either bound or loosed. 
 We say that the priest is a judge, but then we say that he hath not the right of any 
 dominion. 
 
 ** 9. We say marriage is honourable and holy in all degrees of men; in patriarchs, in 
 prophets, in apostles, in holy martyrs, in the ministers of the churches, and in the bishops 
 And we say as Sozomon did of Spiridion, and Nazianzen of his own father, * that a pious 
 and industrious bishop is nothing the worse for being married, but rather much the better, 
 and more useful in his ministry.' And we say that the law, which by force taketh away 
 this liberty from men, and ties them to a single life against their wills, is as St Paul styles 
 it, the doctrine of devils. 
 
 " 10. We receive and embrace all the canonical Scriptures both of the Old and New 
 Testament. We give our gracious God most hearty thanks, that he hath set up this light 
 for us, upon which we ever fix our eyes, lest by any human fraud, or the snares of the 
 devil, we should be seduced to errors or fables. We own them to be the heavenly voices by 
 which God hath revealed and made known his will to us. In them only can the mind of 
 man acquiesce. In them all that is necessary for our salvation is abundantly and plainly 
 contained. They are the very might and power of God unto salvation. They are the 
 foundations of the apostles and prophets, upon which the church of God is built. They are 
 the most certain and infallible rule by which the church may be reduced, if she happen to 
 stagger, slip, or err ; by which all ecclesiastical doctrines ought to be tried. No law, no 
 tradition, no custom, is to be received or continued, if it be contrary to Scripture. No, 
 not though St Paul himself, or an angel from heaven, should come and teach otherwise. 
 
 " 11. We receive also and allow the sacraments of the church. That is, the sacred signs 
 and ceremonies which Christ commanded us to use, that he might by them represent to our 
 eyes the mysteries of our salvation, and most strongly confirm the faith we have in his blood, 
 and seal his grace in our hearts. We call ihem figures, signs, types, antitypes, forms, seals, 
 prints or signets, similitudes, examples, images, remembrances, and memorials. Nor do we 
 doubt, with all the ancient fathers, to call them a kind of visible words, the signets of righte- 
 ousness, and the symbols of grace. We clearly affirm, that in the sacrament of the Lord's 
 supper, the body and blood of our Lord is truly exhibited to believers. That is, the enlivening 
 flesh of the Son of God ; the bread that comes from above, the nourishment of immortality, 
 the grace, the truth, and the life. That it is the communion of the body and blood of 
 Christ, by the participation of which we are quickened, strengthened, and fed to immor- 
 tality, and by which we are conjoined, united, and incorporated with Christ, that we may 
 remain in him and he in us. 
 
676 UNITED CHURCH OF ENGLAND AND IRELAND. 
 
 " 12. We ackno;yleclge that there are two sacraments, properly so called — Baptism and 
 the Supper of the Lord. For so many we see delivered tous, and consecrated by Christ. 
 
 " 13. And we say, that baptism is the sacrament of the remission of sins, and of that 
 washing which we have in the blood of Christ ; and that none are to be denied that sacra- 
 ment who will profess the faith of Christ; no, not the infants of Christians, beaiuse they arc 
 born in sin, and belong to the people of God. 
 
 " 14. We say that the eucharist is the sacrament or visible symbol of the body and blood 
 of Christ, in which his death and resurrection, and what he did in his human body, is, in a 
 manner represented to our eyes, that we may give him thanlts for his death and our deliver- 
 ance by it; and that by frequenting thp sacrament we may often renew the remembrance 
 of it, and that by the body and blood of Christ we may be nourished into the hope of the 
 resurrection and of eternal life ; that we may be assured that the body and blood of Christ 
 hath the siime eflect in the feeding of our souls, which the bread and wine have in repairing 
 the decays of our bodies. 
 
 '* 15. We say the bread and vAne are the holy and heavenly mysteries of the body and 
 blood of Christ ; and that in them, Christ himself, the true bread of eternal life, is so ex- 
 hibited to us as present, that we do by faith truly take his body and blood ; and yet at same 
 time we speak not this so as if we thought the nature of the bread and wine were totally 
 changed and abolished, as many in tJie last ages have dreamt, and as jet could never agree 
 among themselves about this dream. For neither did Christ ever design that the wheaten 
 bread should change its nature, and assume a new kind of divinity, but rather that it might 
 change us. For what can be more perspicuous, than what Christ said not only after the 
 consecration, but after the finishing of the communion: I will drink no more of the fruit of 
 the vine. It is certain the fruit of the vine is wine and not blood. And yet when we speak 
 thus, we do not so depress the esteem of the Lord's supper as to teach that it is a mere cold 
 ceremony, and that nothing is done in it. We assert that Christ in his sacraments doth 
 exhibit himself truly present in baptism^ that we may put him on ; in his supper, that we 
 may eat him by faith and in the spirit, and that by his cross and blood we may have life 
 eternal. This we say is not slightly and coldly, but' really and truly done : for although we 
 do not touch Christ with our teeth and lips, yet we hold and press him by faith, mind, and 
 spirit. Neither is that faith vain which embraces Christ, nor that participation cold, which 
 is perceived by the mind. So is Christ himself entirely offered and given to us in these 
 mjsteries, as much as is possible, that we may truly know that we are flesh of his flesh, and 
 bone of his bone. That he dwells in us, and we in him. 
 
 " 16. And therefore, in the celebration of these mysteries, before we come to receive the 
 holy communion, the people are fitly admonished to lift up their hearts ; and that they should 
 direct their minds to heaven ; for there he is, by whom we are to be fed and live. 
 
 " 17. But then as to the fairs and sales of masses, and the carrying about and adoring the 
 bread, and a number of such-like idolatrous and blasphemous follies, which none of them 
 dare affirm to have been delivered to us by Christ or his apostles, our church will not endure 
 them. Origen saith, * Christ is the priest, and the propitiation, and the sacrifice ; and this 
 propitiation comes to every one by the way of faith ;' and therefore, agreeably hereunto, we 
 say that the sacraments do not profit the living without faith, and much less the dead. As 
 to purgatory, though it is not a very late invention, yet it is nothing but a silly old wives' story. 
 
 " 18. We know that St Augustine grievously complained of the vast number of imper- 
 tinent ceremonies in his time ; and therefore we have cut off a great many of tliem, because 
 we know they were aftlictive to the consciences of men, and burdensome to the church of 
 God. Yet we still retain, and religiously use, not only all those which we know were 
 delivered to the church by the apostles, but some others which we saw might be borne without 
 inconvenience ; because, as St Paul commands, we desire all things in the religious assem- 
 blies should be done decently and in order. As to all those which were very superstitious or 
 base, or ridiculous, or contrary to the Scriptures, or did not seem to befit sober men, an 
 infinite number ot which are still to be found amongst papists, we have rejected all these, 
 without excepting any one of them, because we would not have the service of God any longer 
 contaminated with such fooleries. 
 
UNITED CHURCH OF ENGLAND AND IRELAND. 677 
 
 "19. We pray ("as it is fit we should) in that tongue our people do all understand, that 
 tlie people, as St Paul admonisheth, maj- reap a common advantage by the common prayers. 
 
 " 20. We have no mediator and intercessor by whom we approach to God the Father, but 
 Jesus Christ, in whose name only all things are obtained. 
 
 " 21. We say that man is born and does live in sin ; and that no man can truly say his 
 heart is clean. That the most holy man is an unprofitable servant. That the law of God 
 is perfect, and requires of us a full and perfect obedience ; and that we cannot in any way 
 keep it perfectly in this life. That there is no mortal who can be justified in the sight of 
 God by his o\>ti deserts ; and therefore our only refuge and safety is in the mercy of God 
 the Father by Jesus Christ ; and in the assuring ourselves that he is the propitiation for our 
 sins, by whose blood all our stains are washed out. That he has pacified things by the blood 
 of his cross. That he, by that only sacrifice which he once offered upon the cross, hath per- 
 fected all things; and therefore, when he breathed out his soul, said. It is finished ; as if 
 by these words he would signify, Now the price is paid for the sins of mankind. 
 
 " 22. Now if there be any who think not that this sacrifice is sufiicient, let them go and 
 find out a better : but as for us, because we know this is the only sacrifice, we are contented 
 with it alone, nor do we expect any other. 
 
 3. Though we say there is no trust to be put in the merits of our works and actions, 
 and place all the hopes and reason of our salvation only in Christ ; yet we do not therefore 
 say that men should live loosely and dissolutely, as if baptism and faith were sufficient for a 
 Christian, and there were nothing more required. The true faith is a living faith, and 
 cannot be idle ; therefore we teach the people that God hath not called us to luxury and 
 disorder, but, as St Paul saith, ' unto good works, that we might walk in them.' ' That 
 God hath delivered us from the power of darkness, that we might serve the living God.' 
 That we should root up all the relics of sin. That we ' should work out our salvation with 
 fear and trembling;' that it might appear that the spirit of satisfaction was in us, and that 
 Christ himself dwelleth in our hearts by faith. 
 
 " 24. To conclude. We believe that this body of ours in which we live, though after 
 death it turns to dust, yet in the last day it shall return to life again, by the Spirit of Christ 
 that dwelleth in us. That then, whatever we suffer for Christ in the interim, he will wipe 
 away all tears from our eyes ; and that then, through him, we shall enjoy everlasting life, 
 and be always with him in glory. Amen."* 
 
 For the first six or seven centuries, the parochia was the diocese or 
 episcopal district; and the bishop and his clergy lived together at the 
 cathedral church. The tithes and oblations were all paid to the bishop, 
 who maintained the inferior clergy, repaired and ornamented the church, 
 and maintained hospitality. This collegiate life was common not only in 
 the British church from the first, before the introduction of popery, but 
 also in the Saxon church. The division of dioceses into rural parishes 
 was not the work of one day, or of one particular act. Several causes 
 and persons contributed to the rise of parochial churches. The bishops 
 sent out their clergy to preach to the people as they saw occasion. But 
 after the inhabitants had generally embraced Christianity, this itinerancy 
 was found to be inconvenient. The people required the constant offices 
 of the church, and knew not to whom to resort for spiritual offices and 
 directions ; and the distance of the cathedral church prevented their 
 attendance. Sometimes they gave encouragement for clergymen to settle 
 
 * Bishop Jewell's Apology of the Church of England. 
 
678 UNITED CHURCH OF ENGLAND AND IRELAND. 
 
 among them, who with their assistance erected a church and an adjoining 
 manse. Sometimes kings erected chapels at their country seats, for the 
 convenience of their court and retinue, which were the original of royal 
 free clmpels. Frequently the bishops, in commiseration of the ignorance 
 of remote country places, erected churches to preserve Christianity among 
 them. But the most frequent, and indeed standing method of erecting 
 churches, depended on the piety of the nobility and landed proprietors. 
 These founded churches on their estates in the country, for the service of 
 their families and tenants. This, therefore, is the primary and only 
 foundation of the patronage of laymen. This made the bounds of a parisii 
 commensurate with the extent of a manor or estate. This divided the 
 several portions of the same church, according to the separate interests oi 
 the several lords. And this distinct property of lords and tenants, by 
 degrees allotted new parochial bounds by adding new auxiliary churches. 
 In this arrangement the king presented to all the churches which he had 
 built and endowed : the bishop to his, and the lay lords to those which 
 they had erected j and which has continued hereditarily ever since to the 
 heirs and successors of each. 
 
 This arrangement of parishes did not however in any way interfere with 
 the spiritual or temporal rights of the bishop. He still had the proper 
 cure of souls within his own diocese, and a title to all the ecclesiastical 
 revenues. It was by his authority that parish churches were erected, and 
 ministers appointed for them, as his helpers and assistants. To prevent 
 any recess from his jurisdiction, or independency of the parish ministers, 
 the most solemn reservations were made to him and his successors. No 
 church, when built, could be employed for public worship, till the bishop 
 had first consecrated it. No priest could officiate or reside there, without 
 the bishop's delegation. There were as many acknowledgments of right 
 and respect paid to the head of the diocese, as the feudal customs demanded 
 for the head of the state. As the tenants did suit and service at the lord's 
 court, which was at his own residence, so the clergy of the diocese were 
 cited to render an account of their stewardship at the cathedral church. 
 For it is the heart of the diocese, the bishop's chair. Each inferior 
 tenant on admission took an oath of fidelity to his prime lord. Every 
 presbyter gained admission to his church with an obligation of obedience 
 to his bishop. The tenant paid rent to his lord for quiet possession. 
 The presbyter made return of some part of the parochial profits to his 
 bishop, for the secure enjoyment of the remainder. No tenant could desert 
 his holding, or substitute another in it, without his lord's acceptance and 
 consent. The parish priest could not forsake his charge, nor appoint 
 another to succeed him in it, without the bishop's express leave and 
 authority. On the death of a feudatory tenant, the custody of the lands 
 
UNITED CHURCH OB' ENGLAND AND IRELAND. 679 
 
 reverted to his lord, till an heir was instated in it. The custody of all 
 vacant benefices likewise reverted to the bishop, who received their mean 
 prcjfits till a successor was appointed and settled. In many other forms 
 and customs of dependency and subjugation, the parochial clergy were 
 accountable to the bishop, in the same manner as the lay tenants were to 
 their feudal lordsj so that during all this first institution of parishes, neither 
 tithes, glebes, or oblations, were diverted into lay hands. These were 
 never applied to secular uses, but the bishops and clergy held the absolute 
 property and entire disposal of them, for their own support.* 
 
 In the Liturgy every clergyman who ofiiciates in a church, whether he 
 be the incumbent or his substitute, is called a curate. But those in par- 
 ticular who are employed by the incumbent of a church as substitutes, are 
 known by the name of curates. They oflSlciate in his stead, where the 
 incumbent is either old or infirm, or unable to accomplish the whole of 
 tiie sacred offices of the church. In cases of pluralities, a curate or sub- 
 stitute is absolutely required. The curate is to be licensed and admitted 
 by the bishop of the diocese, who usually appoints his salary. In which 
 case, if he is not paid, he has his remedy in the ecclesiastical court, by a 
 sequestration of part of the profits of the benefice. But if he serves by 
 an agreement with the incumbent without the bishop's license, then he 
 must prove his agreement at common law. Curates who serve a church 
 during its vacancy, sliall be paid such stipend as the bishop shall think 
 reasonable out of the profits of the vacancy. If that should not be suf- 
 ficient, the successor must pay the difference within fourteen days after 
 taking possession.f The bishop may appoint a salary to a curate of ,£75 
 per annum, with the use of the parsonage house, or an allowance for it, 
 when the rector or vicar does not personally reside.:}: Churches aug- 
 mented by queen Anne's bounty, shall be deemed benefices presentive, and 
 the officiating curate may have a like stipend. § Bishops may license curates 
 employed, though the incumbent has not nominated him. He may also 
 revoke any license, subject however to an appeal to the archbishop.] | By 
 a subsequent act, the bishops are empowered to license curates, and to 
 assign them salaries, in no case less than .£80 per annum, and increasing 
 upwards to JB150, according to the population of the parish. The curate 
 is also entitled to the parsonage house, when his principal does not reside. 
 He cannot quit his curacy without giving three months' notice to the 
 incumbent and the bishop.^ 
 
 One person cannot be curate in two churches at one and the same time: 
 unless it be easily in his power to read both the morning and evening 
 service at both churches. He cannot serve one cure on one Sunday, and 
 
 * Burn's Ecd. Law. f 28 Henry VI IL, c. H. \ 36 Geo. IIL, c, 83 
 
 § 36 Geo in., c. 83. (J Ibid. H 57 Geo. III., c. 99. 
 
680 UNITED CHURCH OF ENGLAND AND IRELAND. 
 
 another on the next. He must not neglect to read the morning and evening 
 service at his church every Lord's day. A curate who is engaged by the 
 incumbent, and has not been instituted and inducted by the bishop, may 
 be removed at pleasure by either the incumbent or the bishop. A per- 
 petual curate, who is instituted and inducted by the bishop, cannot be 
 removed. If a bishop ordain any person not provided with some ecclesias- 
 tical preferment, he must support him till he prefer him to a living. But 
 fellows, chaplains of colleges, and masters of arts of five years' standing, 
 who live in the university at their own expense, are excepted from this 
 rule.* The bishops require a title before they confer orders. A title 
 means the promise of some ecclesiastical preferment, or a certificate from 
 some rector or vicar, promising to employ the candidate, for orders bona 
 jide as a curate. At same time he is bound to grant the candidate a 
 certain allowance till he obtain some ecclesiastical preferment, or shall be 
 removed for some fault. 
 
 There are four things necessary to be observed, before any one can become a parson or 
 vicar. I. Holy orders. II. Presentation. III. Institution. IV. Induction. 
 
 I. Holy Orders. " Orders are not to be accounted for a sacrament of the gospel ; as not 
 having the like nature of sacraments with baptism and the Lord's supper ; for that they 
 have not any visible sign or ceremony ordained of God."t The church of England declares, 
 " that it is evident unto all men diligently reading tlie holy Scriptures^and ancient authors, 
 that from the apostles' times there have been three orders of ministers in Christ's church, 
 BisHoi'S, Priests, and Deacons. "Which offices were evermore held in such reverend 
 estimation, that no man might presume to execute any of them, except he were 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, were approved and admitted thereunto by lawful 
 authority. And therefore to the intent that these orders may be continued and reverently 
 used and esteemed in the united church of England and Ireland, no man shall be accounted 
 or taken to be a lawful bishop, priest, or deacon, in the united church of England and Ireland, 
 or suffered to execute any of the said functions, except he be called, tried, examined, and 
 admitted thereunto, according to the form hereafter following, or hath had formerly episcopnl 
 consecration or ordination."! Besides this peremptory decision of the church itself, the 
 legislature has also enacted, *' that no man can be a lawful priest or deacon, unless he be 
 ordained by a bishop. "§ The celebrated Act of Uniformity also declares, " that no person 
 is capable of being admitted to any parsonage or vicarage, benefice, or other ecclesiastical 
 promotion, preferment, or dignity whatsoever, unless such person have episcopal ordination ; 
 and if any shall presume to be admitted, not having such ordination, or shall presume to 
 administer the sacrament of the Lords supper, not being so ordained, he shall forfeit 
 £100. "(I 
 
 The person to be admitted to holy orders, is first examined by the archbishop or bishop, 
 whether he thinks or is persuaded that he is truly called, according to the will of Christ and 
 the due order of tlie church of England. When the archdeacon presents the candidate, the 
 bishop says : " fcike heed that the persons whom j ou present unto us, be apt and meet, for 
 their learning and godly conversation, to exercise their ministry duly to the honour of God 
 and the edifying of his church." To which the person presenting replies: " I have on- 
 quired of them, and also examined them, and think them so to be." But before admission 
 to holy orders the candidate must subscribe the three following articles. 
 
 * Canons, .%;! of 1603. f 35th Article of Religion. 
 
 \ Preface to the Oulinr.tioi) Service. § 13 Eliz. || 11 Charks 11. 
 
UNITED CHURCH OF ENGLAND AND IRELAND. 681 
 
 I. That the king's majestj', under God, is the only supreme governor of this realm, and 
 of all other his highness's dominions and countries, as well in spiritual and ecclesiastical 
 things or causes as temporal •, and that no foreign prince, person, prelate, state, or potentate, 
 hath or ought to have, any jurisdiction, power, superiority, pre-eminence, or authority, 
 ecclesiastical or spiritual, within his majesty's said dominions, realms, and countries. 
 
 II. That the Book of Common Prayer, and of ordering of bishops, priestg, and deacons, 
 containeth in it nothing contrary to the word of God, and that it may lawfully so be used ; 
 and that he himself will use the form in the said book prescribed in public prayer and 
 administration of the sacraments, and none other, 
 
 III. That he alloweth the book of Articles of Religion, agreed upon by the archbishops 
 and bishops of both provinces, and the whole clergy, in the convocation holden at London in 
 the year of our Lord God 1562 ; and that he acknowledgeth all and every the articles therein 
 contained, being in number nine and thirty, besides the Ratification, to be agreeable to the 
 word of God. 
 
 To these three articles whosoever will subscribe, he shall, for the avoiding of all ambiguities, 
 subscribe in this order and form of Avords, setting down both his Christian and surname, 
 viz. " J, N. N. do willingly and ex animo subscribe to these three articles above mentioned, 
 and to all things that are contained in them." And if any bishop shall ordain any as is 
 aforesaid, except he first have subscribed in manner and form as here we have appointed, 
 he shall be suspended from giving of orders for the space of twelve months.* 
 
 The form and manner of making Deacons. — On the day appointed, after morning 
 prayer is ended, there shall be a sermon, declaring the duties, &c. of deacons. First, the 
 archdeacon or his deputy shall present unto the bishop (sitting in his cliair near to the holy 
 table) such as desire to be ordained deacons, (each of them being decently habited,) saying 
 these words : 
 
 Reverend Father in God, I present unto you these persons present to be admitted deacons. 
 
 The Bishop. Take heed that the persons whom ye present unto us, be apt and meet for 
 their learning and godly conversation to exercise their ministry duly, to the honour to God, 
 and the edifying of his church. 
 
 Answer. I have enquired of them, and also examined them, and think them so to be. 
 
 Bishop. Brethren,t if there be any of you who knoweth any impediment or notable crime 
 in any of the persons presented to be ordered deacons, for the which he ought not to be ad- 
 mitted to that office, let him come forth in the name of God and show what the crime or 
 impediment is. 
 
 If any great crime or impediment be objected, the bishop shall surcease from ordering 
 that person, until such time as the party accused shall be found dear of that crime. 
 
 Here the preceding oath is administered. 
 
 The bishop then aslcs the candidate: Will you reverently obey your ordinary (bishop) 
 and other chief ministers of the church, and them to whqm the charge or government over 
 you is committed, following with a glad mind and will their godly admonitions. 
 
 Answer. I will endeavour myself, the Lord being my helper. 
 
 The bishop then reads this exhortation :> — It appertaineth to the office of a deacon in the 
 church where he shall be appointed to serve, to assist the pi'iest in divine service, and specially 
 when he ministereth the holy communion, and to help in the distribution thereof; and to read 
 the Holy Scriptures and homilies in the church, and to instruct the youth in the catechism ; 
 in the absence of the priest to baptize infants, and to preach if he be admitted thereto by 
 the bishop. And furthermore, it is his office, when provision is so made, to search for the 
 sick, poor, and impotent people of the parish ; to intimate their estates, names, and places 
 where they dwell unto the curate, that by his exhortation they may be relieved with the 
 alms of the parishioners or others. 
 
 Then the bishop laying his hands severally upon the head of every one of them, humbly 
 kneeling before him, shall say : 
 
 Bishop. Take thou authority to execute the office of a deacon in the church of God com- 
 
 * (:!ibson, tit. vi. cap. 7. f This is addressed to the congregation then present. 
 
 4 R 
 
682 UNITED CHURCH OF ENGLAND AND IRELAND. 
 
 mitted uiito thee. In the name of the Father, and of the Son, and of the Holy Ghost. 
 Amen. 
 
 Then shall the bishop deliver to every one of them the New Testament, saying : 
 
 Take thou authority to read the gospel in the church of God, and to preach the same, if 
 thou be thereto licensed by the bishop himself. 
 
 And here it must be declared unto the deacon, that he must continue in the office of a 
 deacon a whole year (except for reasonable causes it shall otherwise seem good unto the 
 bishop) to the intent he may be perfect, and well expert in the things appertaining to the 
 ecclesiastical administration. In executing whereof, if he be found faithful and diligent, 
 he may be admitted by his diocesan to the order of priesthood, at the time appointed by the 
 canon ; or else on uigent occasion, upon some other Sunday or holiday in the face of the 
 church. 
 
 The canons of 1603, drawn up in the reign of James I., prohibit anyone from being made 
 a deacon and a priest on the same day. 
 
 In the form for ordaining priests, the next higher degree, the questions and answers are 
 the same as are put to deacons. After prayer, and Veni Creator, or ** Come, Holy Ghost, 
 our souls inspire," the bishop repeats a prayer of thanksgiving for the benefits conferred by 
 the Christian ministry : after which 
 
 The bishop with the priests present shall lay their hands severally upon thp head of every 
 one that receiveth the order of priesthood, the receivers humbly kneeling on their knees, 
 and the bishop sa} ing : 
 
 Receive the Holy Ghost for the office and work of a priest in the church of God now 
 committed unto thee by the imposition of our hands. Whose sins thou dost forgive, they 
 are forgiven ; and whose sins thou dost retain, they are retained. And be thou a faithful 
 dispenser of the word of God and of his holy sacraments. In the name of the Father, and 
 of the Son, and of the Holy Ghost. Amen. 
 
 Then the bishop shall deliver to every one of them kneeling, the Bible, into his hand, 
 saying ; 
 
 Take thou authority to preach the word of God, and to minister the holy sacraments in 
 the congregation* when thou shalt be lawfully called tliereto.f 
 
 At every ordination the Lord's supper is always administered to the candidates, and to 
 such of the laity as choose to communicate. 
 
 The statute of provisorsj: regulated that archbishops and bishops should be elected by the 
 deans and chapters of their sees. 
 
 Our lord the king hath ordered and established, that the free elections of archbishops, 
 bishops, and all other dignities and benefices elective in England, shall hold from henceforth 
 in the same manner as they were granted by the king's progenitors, and the ancestors of other 
 lords, founders of the said dignities and benefices. 
 
 The bishoprics of England were all of the king's foundation •, he is therefore in right 
 thereof the patron of them all. They were originally donative, and. were bestowed per 
 iraditionem annuli et baculi, till the reign of king John, when they became elective. The 
 ancient laws and canons of the church admit of no consecration of a bishop by a less number 
 than three bishops. After election and confirmation, but not before, the bishop is invested 
 with a right to exercise all spiritual jurisdiction. The dignities of which a bishop was pos- 
 sessed before his election, do not become void till after his consecration, or when translated 
 from one see to another, after confirmation. Every bishop, either on his creation or his 
 translation, is bound immediately after confirmation, to make a legal conveyance to the 
 archbishop, of the next avoidance of any dignity or benefice belonging to his see as the 
 archbishop shall choose. This is therefore called an option.^ 
 
 Every man who is to be ordained or consecrated a bishop, shall be full thirty years of age. 
 The consecration of a bishop must alwa}s be performed on some Sunday or holiday. II 
 
 Form of Consecration of a Bishop. — After the gospel, the Nicene creed, and the 
 
 * Congregation here means the church. f Ordination Service. 
 
 I 25 Edward III., S 3. § Gibson's Codex Juris Ecclesiastici Anglicanl. 
 
 l| Preface to Ordination Service. 
 
UNITED CHURCH OF ENGLAND AND IRELAND. 683 
 
 sermon are ended, the elected bishop (vested with his rotchet) shall be presented by two 
 bishops unto the archbishop of that province, (or to some other bishop appointed by lawful 
 commission,) the archbishop sitting in his chair near the holy table (or altar,) and the bishops 
 that present him, saying :* 
 
 Most reverend father in God, we present unto you this godly and well learned man, to be 
 ordained and consecrated bishop. 
 
 Then shall the archbishop demand the king's mandate for the consecration, and cause it 
 to be read, and the oath touching the acknowledgment of the king's supremacy shall be 
 ministered to the person elected, as it is set down before in the form for the ordering of 
 deacons. And then shall also be ministered unto them the oath of due obedience to the 
 archbishop, as foUoweth : 
 
 In the name of God. Amen. I, N., chosen bishop of the church and see of N., do 
 profess and promise all due reverence and obedience to the archbisliop, and to the metro- 
 politan church of N. and to their successors. So help me God through Jesus Christ. 
 
 An archbishop does not take this oath. At the Reformation this oath was substituted in 
 place of that taken to the pope, which bound them to the most implicit obedience to the see 
 of Rome. When Cranmer was consecrated to the see of Canterbury, he entered a solemn 
 protest, in which he disclaimed all such clauses in the oath to the pope as might interfere 
 with his duty to God and the king; all such, likewise, as might be interpreted as restraints 
 upon him from endeavouring a reformation in the church of England .f 
 
 The archbishop then asks. Are you persuaded, that you are truly called according to the 
 will of our Lord Jesus Christ, and the order of this realm ? 
 
 Answer. I am so persuaded. 
 
 Archbishop. Are you persuaded that the Holy Scriptures contain sufficiently all doctrine 
 required of necessity for eternal salvation through faith in Jesus Christ? And are you 
 determined out of the same Holy Scriptures to instruct the people committed to your charge : 
 and to teach or maintain nothing as required of necessity to eternal salvation, but that which 
 you shall be persuaded may be concluded and proved from the same ? 
 
 Answer. I am persuaded and determined by God's grace. 
 
 Archbishop. Will you then faithfully exercise yourself in the same Holy Scriptures, and 
 call upon God by prayer for the true understanding of the same; so as you may be able by 
 them to teach and exhort with wholesome doctrine, and to withstand and convince the gain- 
 sayers ? 
 
 Answer. I will do so, by the help of God. 
 
 Archbishop. Are j ou ready with all faithful diligence to banish and drive away all erroneous 
 and strange doctrine contrary to God's word ; and both privately and openly to call uponi 
 and encourage others to the same ? 
 
 Answer. 1 am ready, the Lord being my helper. 
 
 Archbishop. Will you deny all ungodliness and worldly lusts, and live soberly, righteously, 
 and godly, in this present world; that you may show yourself in all things an example of 
 good works mito others, that the adversary may be ashamed, having nothing to say against 
 you ? 
 
 Ansu<er. I will do so, the Lord being my helper. 
 
 Archbishop. Will you maintain and set forward, as much as shall lie in you, quietness, 
 love, and peace, among all men; and such as be unquiet, disobedient, and criminous within 
 your diocese, correct and punish,! according to such authority as you have by God's word, 
 and as to you shall be committed by the ordinance of this realm ? 
 
 Ansiver. 1 will do so, by the help of God. 
 
 Archbishop. Will you be faithful in ordaining, sending, or laying hands upon others! 
 
 Answer. I will so be, by the help of God. 
 
 Archbisliop. Will jou show yourself gentle, and be merciful for Christ's sake to poor and 
 needy people, and to all strangers destitute of help ? 
 
 Answer. 1 will so show myself, by God's help. 
 
 * Rubric. f Gibson's Codex. % Titus i. 13; ii. 15- 
 
684 UNITED CHURCH OF ENGLAND AND IRELAND. 
 
 Then shall the bishop elect put on the rest of the episcopal habit. 
 
 Then the archbishop and bishops present shall lay their hands upon the head of the 
 elected bishop, kneeling before them upon his knees ; the archbishop saying, 
 
 Receive the Holy Ghost for the office and work of a bishop in the church of God, now 
 committed unto thee by the imposition of our hands. In the name of the Father, and the 
 Son, and the Holy Ghost. Amen. And remember that thou stir up the grace of God which 
 is given thee by the imposition of our hands. For God has not given us the spirit of fear, 
 but of power, and love, and soberness. 
 
 After which is sung the Veni Creator, or *« Come, Holy Ghost, Creator, come*," and the 
 prayer that God may grant him grace to preach the gospel willingly, and to use his autho- 
 rity wisely, is repeated. 
 
 Then the archbishop shall deliver him the Bible, saying: Give heed unto reading, 
 exhortation, and doctrine. Think upon the things contained in this book. Be diligent in 
 them, that the increase coming thereby may be manifest unto all men. Take heed unto 
 thyself and unto doctrine, and be diligent in doing them; for by so doing, thou shalt 
 both save thyself, and them that hear thee. Be to the flock of Christ a shepherd, not a 
 wolf ; feed them, devour them not. Hold up the weak, heal the sick, bind up the broken, 
 bring again the outcasts, seek the lost. Be so merciful, that jou be not too remiss-, so 
 minister discipline, that you forget not mercy: that when the Chief Shepherd shall ap- 
 pear, you may receive the never-fading crown of glory, through Jesus Christ our Lord. 
 Amen.* 
 
 Then the archbishop shall proceed in the communion service ; with whom, the new- 
 consecrated bishop, with others, shall also communicate. 
 
 II. The next requisite we mentioned was presentation. The king is patron paramount 
 of all the benefices in England. In virtue of which, the right and care of filling all such 
 churches as are not regularly filled by other patrons, belongs to the crown. On the same 
 principle the king presents to all dignities and benefices in the gift of the bishops during the 
 vacancy of the sees.f No person can accept a bishopric in Ireland until he has resigned all 
 the preferments which he held in England, j An alien who is in priest's orders may be 
 presented to a living in England. A layman or a deacon may be presented, but before he 
 is inducted he must be ordained a priest. No patron can present himself. He offers himself 
 to the bishop, and prays to be admitted ; or he may make over the right to present to some 
 other temporality. Presentation may be made either in word or writing. If by w^ord, the 
 patron must declare it in the presence of the bishop. If by writing, it is not a deed, but a 
 letter missive, in form following : 
 
 To the right reverend Father in God, R. lord bishop of (or in his absence 
 
 to his vicar-general in spirituals, or to any other having, or who shall have, sufficient autho- 
 rity in his behalf,) I, Sir W. P., baronet, true and undoubted patron of the rectory of the 
 parish church of (or of the vicarage of ) in the county of 
 
 and in your diocese of now vacant by the death (or resignation, removal, or other- 
 
 wise) of A. B., the last incumbent there, do present unto you C. D., clerk, master of arts, 
 humbly requesting that you will be pleased to admit the said C. D., to the said church, and 
 to institute and cause him to be inducted into the same, with all its rights, members, and 
 appurtenances, and to do and execute all other things in this behalf which shall belong to 
 your episcopal office. In witness whereof, I have hereunto set my hand and seal, the 
 day of in the year 
 
 As before mentioned, in the original settlement of the church of England, the bishops 
 had their clergy under their own immediate care. And that on the lords of manors building 
 and endowing churches, the bishops suffered the patrons to nominate persons for them, pro- 
 vided the bishops were satisfied of their fitness. The right of patronage, therefore, is really 
 but a limited trust, and the bishops are still in law the judges of the fitness of the clergy to be 
 employed in the several parts of their dioceses. The patrons never had the absolute disposal 
 of benefices upon their own terms. If they did not present Jit persons within the limited 
 
 * Ordination Service. \ Gibson's Codex. t ibid. 
 
UNITED CHURCH OF ENGLAND AND IRELAND. 685 
 
 time, then the bishop was bound to provide for them. The examination of the abilities and 
 sufliciency of the. persons presented, belongs to the bishop. He is the ecclesiastical judge, 
 and may and ought to refuse the person presented if he be not fit. The 39th canon directs, 
 that " no bishop shall institute any to a benefice who hath been ordained by any other bishop, 
 except he first show unto him his letters of orders, and bring him a sufficient testimony of 
 his former good life and behaviour; and shall appear upon due examination to be worthy 
 of his ministry." 
 
 in. We proceed now to the next requisite, which is Institution. Its form is, that the 
 minister kneels down before the bishop, whilst he reads the words of institution out of a 
 written instrument with the seal episcopal appendant. During the ceremony, the clerk or 
 minister holds the seal in his hand. The oaths against simony, of allegiance, of canonical 
 obedience, of residence, are then administered to the minister. He must also subscribe the 
 three articles already given, page 6SI. Every dean, canon, and prebendary of any cathe- 
 dral, or collegiate church, and every parson, vicar, curate, lecturer, and every other person 
 in holy orders, who shall be incumbent, or have possession of any deanery, living, &c., shall 
 in the presence of the bishop, at or before his admission to be incumbent, or have possession 
 aforesaid, subscribe the declaration or acknowledgment following: " I, A. B., do declare 
 that I will conform to the liturgy of the church of England, as it is now by law established."* 
 The bishop then executes and delivers to the party instituted, a written mandate to the 
 archdeacon, or other proper person, to induct him. By institution the cure of souls is com- 
 mitted to the minister. Presentation gives him a right ad rem, and institution or collation 
 gives him a right i/i re. In consequence, he may enter into the glebe, and take the tithes ; 
 but till he is inducted he can neither grant nor sue for them.f 
 
 IV. Induction is the last requisite. Induction vests the incumbent with full possession of 
 the whole profits belonging to the church. Accordingly the inductor usually takes the clerk 
 (minister) by the hand, and la)S it upon the key, or upon the ring of the church door. If 
 the key cannot be had, and there is no ring on the door, or if the church be ruinous, then on 
 any part of the wall of the church or churchyard, and sa)s, " By virtue of this mandate, I 
 do induct you into the real, actual, and corporal possession of this church of C, with all the 
 rights, profits, and appurtenances thereto belonging." After which the inductor opens the 
 door, and puts the person inducted into the church. The bell is then tolled, to make his 
 induction public, and known to the parishioners. The clergyman who inducts then indorses 
 a certificate of the induction on the archdeacon's mandate, and those present sign as witnesses. 
 Induction gives corporal possession. By it the minister is seised of the temporalities of the 
 church. He has power to grant them, or to sue for them. He is unexceptionably entitled 
 to plead that he is parson imparsonee. By induction the church is full, not only againat a 
 common person, but also against the king. The church is completely full, and the minister 
 is complete incumbent or possessor. This is compared to livery and seisin in common law, by 
 which possession is given to temporal estates, t 
 
 By the Act of Uniformity, any person inducted to any ecclesiastical benefice, is obliged 
 within two months after induction, openly, publicly, and solemnly, to read the morning 
 and evening prayers in the church or chapel to which he has been inducted. After which, 
 he shall openly and publicly, before the congregation, declare his unfeigned assent and con- 
 sent to the use of all things therein contained and prescribed, in these words and no other: 
 " I, A. B., do here declare my unfeigned assent and consent to all and everything contained 
 and prescribed in and by the book intituled. The Book of Common Prayer, and adminis- 
 tration of the Sacraments, and other Rites and Ceremonies of the Church, according to the 
 use of the church of England ; together with the Psalter or Psalms of David, pointed as 
 they are to be sung or said in churches •, and the form or manner of making, ordaining, or 
 consecrating of bishops, priests, and deacons." The penalty of neglect, or refusal to comply, 
 is deprivation ipso facto. He must also publicly read the Thirty-nine Articles of Religion, 
 otherwise he " shall be upon every such default ipso facto deprived." He must also within 
 three months, publicly and openly, upon some Lord's day, read the bishop's certificate of his 
 
 * Act of Uniformil} . \ Gibson's Codex, t Ibid. 
 
686 UNITED CHURCH OF ENGLAND AND IRELAND. 
 
 having subscribed the declaration of conformity to the Liturgy of the church of England, 
 as it is now by law established. Finally, within six months after his admission, he must 
 take the oaths of allegiance, supremacy, and abjuration, in one of the courts at Westminster, 
 or at the general quarter sessions of the peace. This must be done under pain of incapaci- 
 tation to hold the benefice, of being disabled to sue in any action, to be guardian, or executor, 
 or administrator, or capable of any legacy or deed of gift, or to bear any office, or to vote at 
 any election for members of parliament, and of forfeiting £5C0.* 
 
 The Convocation of the church of England, is much the same as the 
 general assembly of the church of Scotland; with this difference, that as 
 in England and Ireland, there are two houses of parliament, so there are 
 two houses of convocation; whereas in Scotland, there having been only 
 one house of parliament, there is accordingly but one house or chamber 
 of the general assembly. In Saxon times, all bishops and abbots sat and 
 voted as such in the state councils or parliaments, and not on account of 
 their tenures. After the conquest, the abbots sat in parliament, not as 
 abbots, but in virtue of their tenures as barons. But the bishops sat there 
 in a double capacity, j/ir5#, as bishops, as they had formerly done in Saxon 
 times, and secondly, as barons. That they sat there not only in virtue 
 of their baronies, but also as bishops, appears evident from this fact, that 
 during the vacancy of any bishopric, the custos spiritualium, or guardian 
 of the spiritualities of the vacant bishoprics, was summoned to sit in par- 
 liament in place of the bishop. And when any bishop was absent from 
 the kingdom, his vicar-general was summoned to represent him in parlia- 
 ment. These remarks are alike applicable to the general assembly of 
 Scotland before the Reformation. 
 
 The body spiritual is a distinct estate by itself, and is the first estate of 
 parliament. It is more distinct from the other two estates of parliament, 
 than they are from each other. The other two are both comprehended 
 under one denomination of temporality, and compose its several parts, 
 whereas the spirituality is of an entirely different nature, and is incom- 
 municable with the other two. Formerly tliis was more apparent, because 
 the spiritual body was not taxable by the king and parliament, but was 
 taxed by themselves in convocation. Tlie possessions of the church being 
 reckoned God's patrimony, as being dedicated to Him and His church; 
 and therefore no temporal power could dispose of it, under peril of sacri- 
 lege. This mode of taxing the clergy of England was always observed till 
 the grand rebellion and destruction of the constitution under Cromwell. 
 After the Restoration, and before the old established usages could be 
 resumed, the mode of taxation during the usurpation was continued, till 
 the government could be restored to its former course. Accordingly, in 
 the first act of parliament after the Restoration, which imposed taxes on 
 
 * 1 Geo. II., c. 13. 9 Geo. II., c. 26. Burn's Eccl. Law. 
 
UNITED CHURCH OF ENGLAND AND IRELAND. 687 
 
 the clergy in common with the laity, there is an express proviso, saving 
 to the clergy tlieir ancient right of taxing themselves in convocation. 
 From this precedent, however, the custom has ever since prevailed, and 
 the clergy are now taxed in the same manner as the laity. 
 
 The persons of the clergy have always been esteemed so sacred, that it 
 any were guilty of a capital crime, or deserved a personal disgrace or 
 punishment, care was taken by his spiritual superiors to preserve the 
 official character from sharing in the disgrace, by having the person pre- 
 viously degraded, and so delivered up as a laymari to the hrachium 
 seculare, or secular arm, to be tried as a layman for his offences. The 
 church of England claims no sanctuary for her guilty children as the 
 church of Rome does. Though the exemption of clergymen from the 
 secular power, even in secular causes, was an unreasonable and unjust 
 usurpation of the church of Rome; yet with regard to religion in general, 
 Christianity requires that its ministers should be so far exempted from 
 public contempt, that when they suffer for personal crimes, their punish- 
 ment should only he personal^ but that ihe'ir profession should not suffer 
 with them. However, while the law stood as just stated, no clergyman 
 could be tried by laymen, till after he was degraded by his spiritual supe- 
 riors, and reduced to the character of a layman. 
 
 For some of the first reigns after the conquest, and during the reigns 
 of most of the Anglo-Saxon kings, parliaments and synods, or convocations 
 of the church, were so much alike, that some of those which have been 
 called parliaments, might as well have been called synods or ecclesiastical 
 convocations. Those especially which were called by the authority of the 
 pope or the archbishop of Canterbury. Before the conquest, though the 
 king himself with all his nobility were present in the ecclesiastical councils, 
 and the ecclesiastical laws of England were for the most part enacted in 
 the king's name, yet the archbishop of Canterbury had the power of 
 himself, without any particular license from the king or the pope. He 
 repeatedly assumed the power of calling councils of the clergy and nobility, 
 and of making canons- But the conqueror deprived the archbishop of 
 the power of making canons, or enacting or decreeing any thing, without 
 the king's special license and approbation.* 
 
 The convocation is divided into the upper and the lower house, the 
 members of which sit in different chambers, and conduct their debates 
 much in the same manner as the two houses of parliament. The lower 
 house, which consists of the inferior clergy, choose one of their own number 
 to be their prolocutor, who communicates the result of their debates to the 
 upper house, which consists entirely of the bishops. The whole number 
 
 * Hody's History of English Councils and Convocations. 
 
688 UNITED CHURCH OF ENGLAND AND IRELAND. 
 
 of the convocation of the province of Canterbury at this time, is one hun- 
 dred and sixty-six J viz. twenty-two in the upper house, and one hundred 
 and forty-four in the lower. Before the dissolution of the monasteries the 
 number was much greater, and the upper house contained more members 
 than the lower. 
 
 A convocation may be considered in a double sense. Either in itself, 
 as it is a synod, and called by the archbishop's mandate, or, as it is in 
 the strictest sense, a part of the parliament, and summoned by the king's 
 writ directed to each particular bishop. In this latter case it is a convo- 
 cation not merely of the province of Canterbury but also of the province 
 of York; and they are all commanded to meet together at the same time 
 and place as the parliament; but as it is summoned by the archbishop, it 
 is only a provincial convocation. The king sends his writ to the arch- 
 bishops of the two provinces of Canterbury and York, commanding them 
 to summon all the bishops of their provinces to meet in convocation, at a 
 certain time and place, and to command the bishops to summon all their 
 deans, archdeacons, chapters, and clergy, to meet at a certain time. For 
 several ages, the great council, Witena Gemot, or parliament of England, 
 are scarcely distinguishable from synods or convocations.* 
 
 It is unquestionable that the bishop of every diocese had the power in 
 every Christian country to convene the clergy of his diocese, and in a 
 common synod or council to transact with them such affairs as related to 
 the government and discipline of the churches under his care. These 
 synods were as old as the first settlement of Christianity; and amidst all 
 the changes and revolutions of the state continued to be held till the reign 
 of Henry VIII. What every bishop did in his diocese, the archbishop 
 did in his province. He first called together the bishops, and afterwards 
 as many of the parochial clergy as he thought needful. In these diocesan 
 and provincial synods nothing but the spiritual affairs of the church were 
 transacted. In these particulars there was no difference between the 
 customs of the English church and those of all other Cliristian countries. 
 
 After the papal authority was firmly fixed, legates from Rome, sometimes 
 with and sometimes against the royal license, summoned larger councils, 
 consisting of the bishops and prelates of the whole realm. These were 
 properly national councils held for some special design, which either the 
 king, the pope, or both, had to promote by them. The first national 
 council held in England was that of Heriedford, (Hertford), in 673 ; and 
 the last was held by cardinal Pole in 1555. Although national councils 
 are not now called together, yet on emergencies the provincial synods of 
 Canterbury and York act by mutual correspondence and joint consent. 
 
 * Body's History of English Councils and Convocations. 
 
UNITED CHURCH OF ENGLAND AND IRELAND. ^£^9 
 
 Besides these national councils, there were two other assemblies of the 
 clergy. In these the clergy were convened not only for the spiritual 
 affairs of the church, but for the good and benefit of the realm, and to 
 act as members of the state as well as of the church. The reason of this 
 is obvious. When the Christian faith was. thoroughly planted in England, 
 and the piety of the nobility and gentry had liberally endowed the bishops 
 and clergy with temporal lands and possessions, not only the general 
 opinion of their prudence and piety drew the most eminent of the clergy 
 into the public councils, but the interest which the clergy themselves had 
 in the state, made it expedient to do so, and to commit the direction and 
 management of affairs to them. Hence the bishops first, and afterwards 
 the other prelates (abbots and priors) were very early brought into the 
 great council of the nation or parliament, and thus became a constant and 
 established part of them. In time, however, the king began to think it 
 reasonable that the clergy should bear a part of the public burdens. 
 Accordingly the Saxon monarchs, under whom the church was most 
 free, subjected their lands to the threefold burden of castles, bridges, and 
 expeditions. The granting of aids in these cases, brought on assemblies 
 of the clergy, which were afterwards distinguished by the name of con- 
 vocations.* 
 
 In the Saxon times the lords spiritual held by frankalmoigne, but 
 William the Conqueror turned their tenures into baronies, which obliged 
 them to furnish soldiers, or pay escuage instead. Their attendance in 
 parliament then became compulsatory ; of which they complained, and 
 which was the cause of the grand quarrel between Thomas a Becket and 
 Henry II. The clergy had been exempted from most of the charges 
 assessed on the laity. In order to bring them under the same obligation, 
 after many disputes it was at last agreed that the pope should tax the 
 clergy for the use of the king. The bishops were also prevailed upon on 
 extraordinary occasions, to compel their clergy to grant a subsidy to the 
 king, under the name of a benevolence. These concessions were sometimes 
 made by the bishops in the name of their clergy. But the most common 
 way was for every bishop to hold a meeting of the clergy of his diocese, 
 and agree with them what to do. First they empowered tlieir bishops, 
 afterwards their archdeacons, and finally proctors chosen by themselves 
 for that purpose, to make the concession for them.f Edward I. deter- 
 mined to stand on a less precarious footing with the spiritual estate, and 
 he altered the convocation to nearly its present establishment. He not 
 only called the bishops, whom as barons he had a right to summon, but 
 the rest of the clergy, that he might obtain their consent to the taxes and 
 
 * Wake's State of the Church. t Ibid. 
 
690 UNITED CHURCH OF ENiGLA-ND AND IRELAND. 
 
 assessments made on them. But the clergy, foreseeing they would be 
 taxed, pretended that they could not meet under a temporal authority 
 to make any laws or canons for the government of the church. The 
 bishops entered keenly into this dispute, not only because they objected 
 to the taxation of the clergy, but to their having any interest in the 
 making of ecclesiastical canons, which were formerly made by the bishops 
 alone. The archbishops and bishops threatened to excommunicate the 
 king. But the king and the temporal estate, displeased at their objecting 
 to bear the public burdens, outlawed the clergy, and seised their posses- 
 sions into the king's hand. This humbled the clergy, and they consented 
 to meet. To take away all pretence of a temporal authority, the 
 archbishops were commanded to summon the bishops, deans, archdeacons, 
 colleges, and the whole clergy of their provinces. Hence they met by the 
 ai;chbishop's authority. The bishops and clergy came to convocation by 
 virtue of the archbishop's summons, esteeming it to be in his power 
 whether he would obey the king's writ or not, of which they were exceed- 
 ingly jealous. From henceforth the clergy composed two synods under 
 the summons of their respective archbishops, where they sat and made 
 canons by which each province was bound, and gave aids and taxes to the 
 king. The clergy of Canterbury and York assembled, each in their own 
 province, and were formed in the nature of a parliament. The archbishop 
 sat as king. The bishops sat in the upper house as his peers; the deans, 
 archdeacons, and the proctor for the cliapter, represented the burgesses; 
 and the two proctors for the clergy, the knights of the shire. And so this 
 body became an ecclesiastical parliament, to make laws, and to tax the 
 possessions of the church.* The clergy were drawn to parliament against 
 their own inclinations. But although they thus sat as a parliament, and 
 made laws for the church, yet they did not make a part of the parliament 
 properly so called. Even the convocation-tax on themselves, did not bind 
 as a law till it had passed both houses of parliament. f 
 
 The convocation stood in this manner up to the 25th of Henry VIII., 
 when the act of submission was passed, whicli enacts that the clergy, 
 " submitting themselves to the king's majesty, have promised, in verba 
 sace)'dotii, that they will never from henceforth presume to attempt, allege, 
 claim, or put in ure, enact, promulge, or execute any new canons, constitu- 
 tions, ordinances, provincial or other, in the convocation, unless the king's 
 most royal assent and license may to them be had," &c. After this it was 
 determined, 1. That a convocation cannot assemble without the king's 
 assent. 2. That after assembling, they cannot constitute canons without 
 the king's license. 3. Neither after canons are duly enacted, can they be 
 
 * Burn's Eccl. Law. f Kennel's Eccl. Syn. 
 
UNITED CHURCH OF ENGLAND AND IRELAND. 691 
 
 executed without the royal assent. 4. After the royal assent, they cannot 
 execute any, but within these four limitations : — that they be not against 
 the king's prerogative ; nor against the common law ; nor against any 
 statute law; nor against any custom of the realm. , 
 
 Whenever a new parliament is called, writs are issued by the crown to ' 
 the two archbishops to call a provincial synod; the first to meet at London, 
 the other at York. As before mentioned, the clergy taxed themselves, 
 up to the time of the long parliament. After the Restoration, arch- 
 bishop Shelden made a private agreement with lord chancellor Clarendon, 
 that the clergy should silently waive the privilege of taxing their own body. 
 This has made convocations unnecessary to the crown, and inconsiderable 
 in themselves. In lieu of this, the clergy were granted the privilege of 
 voting at county elections as freeholders. From that time, 1664, neither 
 synod has passed any synodical act. They were regularly summoned, but 
 rarely met, and never in full solemnity. In the reign of king James II., 
 the writs issued out, of course, but the members did not meet. In 1689, 
 a convocation was not only called, but began to sit in due form; but arch- 
 bishop Sancroft refused to transfer his allegiance, and therefore was in- 
 capacitated from sitting. Since 1700, the convocation of the clergy has 
 been solemnly opened at the meeting of every parliament, and the clergy 
 of the lower house have been permitted to constitute themselves, and to 
 choose a prolocutor. And now it seems to be grarited on all hands, that 
 they are of right to be assembled concurrently with parliaments, and may 
 act and proceed as provincial councils, when his majesty in his royal wisdom 
 shall deem it expedient.* 
 
 There is a difference in the customs of parliament and of the convoca- 
 tion. It is but one session of the former, if they meet daily for three or 
 more months; but every day's meeting and sitting is, in the language of 
 the convocation, a distinct session. A prorogation of parliament breaks 
 dff all business, so that every thing must begin de novo next session. 
 But by a continuation of the convocation, all business remains in the same 
 state, and may be resumed where they left off the preceding session. 
 Parliament is prorogued^ but convocation is continued. 
 
 Writs are issued to all the bishops to come to parliament ; prcemu- 
 nientes, that is, " warning him to bring with him the deans and arch- 
 deacons within his diocese, one proctor for each chapter, and two for the 
 clergy of his diocese." An English synod or convocation as it now stands 
 for the province of Canterbury, consists of the archbishop, who is the 
 president (or moderator), twenty-one bishops, twenty-two deans, fifty-three 
 archdeacons, forty-four proctors or representatives for the diocesan clergy, 
 
 * Johnson's Vademecum, 152. 
 
692 UNITED CHURCH OF ENGLAND AND IRELAND. 
 
 and twenty-four proctors of the chapters. The members of the convo- 
 cation enjoy the same privilege of freedom from arrest as the members of 
 the liouse of commons. It is enacted, " that the clergy called to convoca- 
 tion by the king's writ, together with their servants and families, shall 
 fully use and enjoy such liberty, or defence, in coming, tarrying, and 
 returning, as the great men, or commonalty of the realm do, or ought to 
 enjoy."* This act has always been so understood, that proctors chosen 
 by the provincial writ have been as safe from arrest, as if they had been 
 chosen by virtue of the prcemunientes.f 
 
 Reference is frequently made to our Lord's words : M^ kingdom is 
 not of this world. From the context, however, it cannot be made to 
 say anything either for or against an establishment. Pilate was made 
 to believe that Christ claimed the rank and title of a temporal prince, 
 and as such was an enemy to Cesar. To ascertain the truth of this 
 accusation Pilate demanded of our Lord, Art thou the Tiing of the 
 Jews ? Our blessed Lord admitted the fact : Thou say est that I am 
 a king. But to undeceive the Roman governor as to the nature of his 
 kingship, he added : My kingdom is not of this world : if my kingdom 
 were of this world, then would my servants fight, that I should not 
 he delivered to the Jews : hut now my kingdom is not from hence : 
 that is, mine is a spiritual kingdom, altogether different from Cesar's. 
 His kingdom is of this world, mine is not of this world, and therefore my 
 sovereignty cannot interfere with his rights. Asa proof of which, I have 
 not commanded my servants to fight for me, which, had my kingdom been 
 a temporal one, I should certainly have done. Here, however, was an 
 opportunity for condemning an establishment, had it been improper. 
 Among the Jews, the church and state were very closely united. The 
 Jewish church was as much established in Palestine, and that by God's 
 own authority, as the Christian church is in Great Britain. There is no 
 established church in America. In the cities and towns of that country, 
 where religion is regarded as a luxury, churches and chapels abound. 
 But in the rural districts, the population is either utterly destitute of 
 pastoral supervision, or depends for the sacraments and for spiritual 
 education on the visits, few and far between, of some chance missionary. 
 Where there is no national establishment, those who require instruction 
 must have none at all. And therefore, whether we look at the fact with 
 the eye of a legislator or of a Christian, the circumstance of stationing a 
 man of education, respectability, and religion, in each parish, where the 
 inhabitants are too poor to support, or too ignorant to desire, an instructor, 
 is an advantage to the country, which will only then be properly appre- 
 
 * 8 Henry VL, c. 1. f Johnson's Vademecurn, 159. 
 
UNITED CHURCH OF ENGLAND AND IRELAND. 693 
 
 (Mated when it is lost. Again, the position of the higher ecclesiastics, as 
 tlie compeers of the royal and the great, gives to English society that 
 moral tone which is the glory of the country. By intercourse with the 
 good, the irreligious learn to respect virtue, and their children are brought 
 up in the nurture and admonition of the Lord. Religion is thrust as it 
 were into every man's face, inquiry is courted, and inquiry leads to sobriety 
 and conviction.* 
 
 We conclude this subject in the words of a learned and pious writer : 
 " That every church hath power to decree rites and ceremonies, will not 
 now, and could not at any time be questioned, by any sound and sober 
 Christian, so that there be nothing decreed contrary to Scripture, and so 
 that all things he done decently and in order. This power the church 
 of England asserts and claims in her twentieth article. That she has 
 exercised it in conformity with Scripture, and made all her arrangements 
 in conformity with St Paul's injunctions, she not only believes, but has 
 proved as often as the truth has been questioned. The liturgy we can 
 examine. We can learn its import, and prepare ourselves for its use — 
 prepare ourselves so as to add the spirit of prayer to the form which we 
 know. The united church of England and Ireland claims to be a part of 
 the catholic church, or spouse of Christ, the mould in which the heirs of 
 immortality are begotten, nurtured, and prepared for their heavenly 
 inheritance. It is a remarkable fact, well worthy of the most serious 
 reflection, that the church of England, reformed by the most sober-minded, 
 learned, and judicious divines of that most remarkable age, stands now as 
 she stood then, the same in doctrine and discipline — the acknowledged 
 bulwark of pure, true, and undefiled religion, against popery, fanaticism, 
 and all the various degrees of infidelity; — which unity of faith and disci- 
 pline cannot be predicated of any other church of the reformation which 
 we knoAv ; while of most of them, the direct contrary must with equal 
 grief and indignation be acknowledged."f 
 
 The church of England, and indeed the whole of the Western church, 
 was crucified, like her divine head, between the usurpation of the popes 
 and the king. The contest between these rival powers, raged fiercely 
 from the grand usurpation of pope Hildebrand up to the reign of Henry 
 VIII. For several hundred years the Anglo Saxon church and state 
 made their respective laws in perfect concord; and there cannot be shown 
 one single Saxon law that is in contradiction to the canons of the church. 
 It was William the Conqueror who first invaded the rights and liberties of 
 the English people, and that first broke in upon the freedom of the Eng- 
 lish church. He would not suflfer the primate in a convocation to enact 
 
 » Hook on Establishments. \ Bishop Walker's Life of Archbishop Whitgift. 
 
694 UNITED CHURCH OF ENGLAND AND IRELAND. 
 
 any canon, of which he himself did not first approve, neither would he 
 suffer any bishop to censure, or inflict any ecclesiastical penances upon 
 any of his ministers or courtiers. And what is very remarkable, although 
 he pretended to be a true and zealous son of the church of Rome, yet he 
 would allow none in his dominions to acknowledge any pope without his 
 consent. " Thus," says Eadmer, " all divine as well as human affairs 
 were governed by his beck." Rome's encroachments, however, were not 
 all accomplished in one day. The pope's supremacy in England fluctuated 
 according to the weakness, the necessities, or the superstitious devotion, of 
 her sovereigns. Henry I. yielded to the pope the patronage and donation 
 of his bishoprics and all other ecclesiastical benefices. Stephen granted 
 that the clergy might appeal to Rome, which in effect yielded the whole 
 dispute. Henry II. conceded to the clergy the right of exemption from 
 the secular power, so that a clergyman, as such, could not be tried by a 
 lay judge, but only by his spiritual peers. The turbulence of Thomas a 
 Becket occasioned the famous constitutions of Clarendon to be drawn up, 
 wliich considerably curbed the pope's supremacy. A dispute between 
 king John and Innocent III. about the investiture of tlie archbishop of 
 Canterbury, so incensed that haughty pontiff that he laid the whole king- 
 dom under an interdict for six years. During all that time, the ordinances 
 and the sacraments of the church were suspended, and the whole kingdom 
 was without any religion whatever. This claim, and most tyrannical exer- 
 cise of an ecclesiastical jurisdiction by a foreign potentate, was productive 
 of such ruinous effects, that the king and the temporal estates were roused, 
 and even the spiritual estate took part with their sovereign, and joined 
 vigorously in resisting this foreign usurpation. Accordingly severe laws 
 were enacted by Edward I., II., and III., Richard II. and Henry IV. 
 Yet notwithstanding these efforts at resisting the papal supremacy, partly 
 by sufferance, partly by negligence, the whole nation being popish, and 
 held under a devotional slavery, there was not any successful opposition 
 exerted till the reign of Henry VIII. In his reign the parliament com- 
 plained of appeals to Rome, " in cases of matrimony, divorces, titlies, &c. 
 to the great inquietation, vexation, and trouble, costs, and charges, of the 
 king's highness and many of his subjects," &c. And in the next session, 
 they further complain, " that the subjects of this realm have been greatly 
 decayed and impoverished, by intolerable exactions of great sums of money, 
 claimed and taken out of this realm by the bishops of Rome, as well in 
 pensions, census, Peter-pence, procurations, provisions, delegacies, re- 
 scripts in causes of contention, and appeals, as also for dispensations, 
 licenses, faculties, &c., who assumed a power to dispense with a11 human 
 laws, uses, and customs of all realms." 
 
 A short time before Henry's breach with Rome, and before there was 
 
UNITED CHURCH OF ENGLAND AND IRELAND. 695 
 
 any word of a Reformation, but while the whole kingdom was in ful' 
 communion with the pope, the convocation, 22 Henry VI II., fully acknow- 
 ledged and recognized him " to be supreme head on earth of the church 
 within his own dominions." This monstrous title naturally roused the 
 king's ambition and avarice, and in consequence, one fine morning, in the 
 26 th year of his reign, the old Defender of the Faith appointed Cromwell 
 his vicegerent in all ecclesiastical affairs. But the church so detested this 
 novel and monstrous office, that it was never revived; it was beheaded 
 with its first possessor. Henry fortified his headship, which he founded 
 on the declaration of the popish convocation, with an act of parliament, to 
 the astonishment of all Christendom; — " Albeit the king's majesty justly 
 and rightly is, and ought to be, the supreme head of tlie church of Eng- 
 land, and is so recognized by the clergy of this realm in their convocations; 
 yet nevertheless, for corroboration and confirmation thereof, and for increase 
 of virtue in Christ's religion, witliin this realm of England, and to repress 
 and extirpate all errors, heresies, and other enormities and abuses heretofore 
 used in the same, it is enacted by authority of this present parliament, that 
 the king our sovereign lord, his heirs and successors, kings of this realm, 
 shall be taken, accepted, and reputed, the only supreme head on earth of 
 the church of England, called Anglicana Ecclesia, and shall have and 
 enjoy, annexed to the imperial crown of this realm, as well the tille and 
 style thereof, as all honours, dignities, and pre-eminences, jurisdictions, 
 privileges, authorities, immunities, profits, and commodities, to the same 
 dignity of the supreme head of the church, belonging and appertaining; 
 and that our said sovereign lord, his heirs and successors, kings of this 
 realm, shall have full power and authority, from time to time, to visit, 
 repress, redress, reform, order, correct, restrain, and amend, all such 
 errors, heresies, abuses, offences, contempts, and enormities, whatsoever 
 they be, which by any manner of spiritual authority, or jurisdiction, ought 
 or may lawfully be reformed, repressed, ordered, redressed, corrected, 
 restrained, or amended, most to the pleasure of Almighty God, the increase 
 of virtue in Christ's religion, and for the conservation of the peace, unity, 
 and tranquillity, of this realm, any usage, custom, foreign laws, foreign 
 authority, prescription, or any thing or things to the contrary thereof 
 notwithstanding."* In consequence of this act, both houses petitioned the 
 king to tender an oath for the exclusion of the long usurped power of the 
 pope, the preamble of which was, ''I, A. B,, having now tlie veil of 
 darkness of the usurped power of the see of Rome, clearly taken away 
 from mine eyes, do utterly testify," &c. 
 
 The church of England concurs with that of Scotland, in maintaining 
 
 * 26 Hen. VIII., cap 1. 
 
696 UNITED CHURCH OF ENGLAND AND IRELAND. 
 
 that " there is no other head of the church but the Lord Jesus Christ."* 
 For the first three hundred years after Christ, tliere was no regal, and for 
 six hundred years there was no pontifical headship, in the sense at least in 
 which it is now understood. During all that time the church was distinct 
 from, and independent of both the crown and the pope. The supremacy 
 of the crown is entirely of a temporal nature, and is confined to the civil 
 government of both clergy and laity. This state of subjection to the civil 
 power — " the powers that be" — existed from the first. The apostle 
 commands ** every soul to be subject to the king as supreme ^ Our 
 Saviour himself, the divine and only Head of the church, set us an 
 example of submission to the imperial supremacy. He suffered under 
 Pontius Pilate. He acknowledged the civil authority of that unjust judge, 
 but at the same time reminded him that he received his power from God. 
 There is not one word in Scripture which exempts the clergy from the 
 sword of the prince, even in heathen times, far less now when he is a 
 member of the church. There is not a word in Scripture which either 
 confers or permits a spiritual supremacy, either in the pope or any other 
 ecclesiastical person. By degrees the pope usurped a jurisdiction superior 
 not only to his own canon law, but also to the municipal law of all king- 
 doms. In England this was exerted so tyrannously, trampling on the just 
 rights of the prince, the people, and the church, that it could be borne no 
 longer. Henry VIII. had the courage to shake it off, and suppressed the 
 pope's power in England for ever. To unrivet those usurpations on the 
 ecclesiastical and even on the civil state, under the vague pretence, in 
 ordine ad spiritualia, the oath of the king's supremacy was framed. It 
 was the severest blow which the religion of Rome ever received. It laid 
 the axe to the root of popery, for the supremacy is the real pivot on 
 which popery hinges. As it has been since modified, the oath is as follows: 
 ♦' I, A. B. do swear that I do from my heart abhor, detest, and abjure as 
 impious and heretical, that damnable doctrine and position, that princes 
 excommunicated or deprived by the pope or any authority of the see of 
 Rome, may be deposed or murdered by their subjects, or any other what- 
 soever. And I do declare that no foreign prince, person, prelate, state, 
 or potentate hath, or ought to have any jurisdiction, power, superiority, 
 pre-eminence, or authority ecclesiastical or spiritual witliin this realm. 
 So help me God." 
 
 The consequence to the church, of Henry's breach with Rome was 
 merely a change of masters. He threw oflf nothing of popery but the 
 foundation of its whole power — the supremacy. He did not restore the 
 church to her freedom; he assumed the same supremacy which the pope 
 
 * Westminster Confession of Faith, cii. xxx. 
 
UNITED CHURCH OF ENGLAND AND IRELAND. ^9^ 
 
 had exercised. In all other respects he lived and died a zealous papist. 
 The public worship continued as formerly in an unknown tongue. Image 
 worship, invocation of saints and the Virgin Mary, and prayers for the 
 dead, were still retained. The doctrines of purgatory, transubstantiation, 
 and works of supererogation, were still maintained, and the seven sacraments 
 were solemnized as heretofore. Whoever opposed, wrote, or spoke against 
 his supremacy or these doctrines, suffered death as heretics. This statute 
 was executed with unrelenting severity, and many both of the clergy and 
 laity were burnt at the stake. Nothing was more common than to see a 
 staunch Romanist, for denying the king's supremacy, and a zealous pro- 
 testant, for non-compliance with the ceremonies, chained together, back to 
 back, and burnt alive at the same stake. The supremacy, as claimed by 
 Henry, was a stumbiingblock to many pious clergymen. He assumed 
 that same spiritual power which the pope had usurped and exercised. 
 But the supremacy which reverted to him on the abolition of popery, was 
 not that exorbitant lawless power which the pope had exercised, but only 
 the ancient legal authority and jurisdiction in matters ecclesiastical, which 
 the kings of England had exercised over the clergy, from the first intro- 
 duction of Christianity into the kingdom. Henry considered himself plainly 
 as a pope in his own dominions. This assumption was opposed by the 
 protestant bishops, and therefore the first parliament of Elizabeth altered 
 the style to •' supreme governor." This is a distinction without much 
 difference : but the act expressly confined the supremacy of the crown to 
 the temporal and civil government of the clergy. The supremacy of the 
 crown, therefore, is now entirely of a temporal nature, and confined to 
 civil affairs in the persons of both the clergy and laity. This matter is 
 settled by the Thirty-nine Articles, and removes all doubts as to the nature 
 of the supremacy. It extends over all men, both spiritual and temporal, 
 in so far only as the civil sword reaches to the persons of ecclesiastics. It 
 can reach no farther than this world. The power of the keys, which was 
 committed to the church alone, and is to be exercised by the church alone, 
 reaches to the world to come. The two powers are therefore essentially 
 and decidedly distinct and separate, and held by separate persons, as the 
 Articles of Religion distinctly show. 
 
 " The kinf^'s majesty hath ihe chief power in this realm of England, and other his domi- 
 nions, unto whom the chief government of all estates of this realm, whether they be eccle- 
 siastical or civil, in all causes doth appertain; and it is not, nor ought to be, subject to any 
 foreign jurisdiction. 
 
 " Where we attribute to the king's majesty the chief government, by which titles we 
 understand the minds of some slanderous folks to be oflended ; we give not to our princes tha 
 ministering either of God's word, or of the sacraments, the which thing the injunctions also 
 lately set forth by Elizabeth our queen do most plainly testifj ; but that only prerogative, 
 which we see to have been given always to all godly princes in Holy Scripture, by God him- 
 self j that is, that they should rule all states and degrees committed to their charge by God, 
 
 4 T 
 
698 UNITED CHURCH OF ENGLAND AND IRELAND. 
 
 whether they be ecclesiastical or temporal, and restrain with the civil sword the stubborn 
 and evil-doers. The bishop of Rome hath no jurisdiction in this realm of England.' * 
 
 The supremacy is also settled and determined by the canons of Ihc 
 church; that is, the fundamental laws as agreed upon in both houses of 
 convocation, and assented to by the king in the same manner as an act of 
 parliament. The first canon says : — 
 
 " As our duty to the king's most excellent majesty requireth, we first decree and ordain, 
 that the archbishop from time to time, all bishops, deans, archdeacons, parsons, vicars, and 
 all other ecclesiastiad persons, shall faithfully keep and observe, and as much as in them 
 lieth shall cause to be observed and kept of others, all and singular laws and stiilufes made 
 for restoring to the croAvn of this kingdom the ancient jurisdiction over the stiite ecclesiastical, 
 and abolishing of all foreign power repugnant to the same. Furthermore, all ecclesiastical 
 persons having cure of souls, and all other preachers, and readers of divinity lectures, shaU 
 to the utmost of their wit, knowledge, and learning, purely and sincerely (without any colour 
 of dissimulation) teach, manifest, open, and declare, four times every year at the least, in 
 their sermons and other collations and lectures, that all usurped and foreign power (foras- 
 much as the same halh no establishment nor good ground by the law of God) is for most just 
 causes taken away and abolished, and that therefore no manner of obedience or subjection 
 within his majesty's realms and dominions is due unto any such foreign power; but that the 
 king's power within his realms of England, Scotland, and Ireland, and all other his domin- 
 ions ar.d countries, is the highest power under God, to whom all men, as well inhabitants 
 as bom within the same, do by God's laws owe most loyalty and obedience, afore and above 
 all other powers and potentates in the earth, "f 
 
 •* No person shall be received into the ministry, nor admitted to any ecclesiastical function, 
 except he shall first subscribe (amongst othei-s) to this article following : That the king's 
 majesty under God is the only supreme governor of this realm, and of all others his high- 
 ness 's dominions and countries, as well in all spiritual or ecclesiastical things or cause?, as 
 temporal ; and that no foreign prince, person, prelate, state, or potentate, hath or ought to 
 have any jurisdiction, power, superiority, pre-eminence, or authority, ecclesiastical or spiritUKl, 
 witliin his majesty's said realms, dominions, and countries."^ 
 
 Sir Edward Coke says that the act of Elizabeth was an act of restitution 
 of the ancient jurisdiction ecclesiastical, which always belonged of right to 
 the crown of England. It was not introductory of a new, but declaratory of 
 the old, and that which was, or of right ought to be, by the fundamental 
 laws of this realm, parcel of the king's jurisdiction. By which laws the 
 king, as supreme head, had full and entire power in all causes ecclesiastical 
 as well as temporal. As in temporal causes, the king doth judge by his 
 judges, in the courts of justice, by the temporal laws of England ; so in 
 causes ecclesiastical, they are to be determined by the judges thereof, 
 according to the king's ecclesiastical laws. By a solemn decision of all 
 the judges, it was found that the kingdom of England is an absolute empire 
 and monarchy, consisting of one head — the king — and of a body politic, 
 made up of many well agreeing members. All which the laws divide into 
 two several parts, — the clergy and the laity, and both of them imme- 
 diately under God subject and obedient to the head. The kingly head 
 
 * 37th Article of Religion. f Canon 1. 1663. * Canon 5(5. 
 
UNITED CHUllCH OF ENGLAND AND IRELAND. 699 
 
 of this united body politic is furnished with prerogative and jurisdiction to 
 render justice and right to every part and member of this body, of what 
 estate or degree soever ; otherways he would not be at the head of the 
 whole.* 
 
 The church of England is governed by two archbishops, and twenty-four 
 bishops, and has twenty-six deans and chapters, sixty archdeacons, five 
 hundred and forty-four prebendaries, and about nine thousand seven 
 hundred rectors or vicars, many of whom have at least one curate, and 
 many of them more, as it is physically impossible for one man to do the 
 whole official duties of a parish in the more populous towns. The arch- 
 bishops assist at the coronation of our monarchs, the archbishop of Canter- 
 bury places the crown on the king's, and York on the queen consort's 
 head. The archbishops are the chief of the clergy in their provinces, and 
 they have besides, their own dioceses wherein they exercise episcopal juris- 
 diction. They consecrate bishops, and receive appeals from inferior 
 jurisdictions within their provinces, besides a number of other duties. 
 They are the guardians of the spiritualities, as the king is of the tempo- 
 ralities of every bisliopric during its vacancy. The archbishop of Canter- 
 bury has also the power of granting dispensations in any case not contrary 
 to the Holy Scriptures and the law of God, where the pope used formerly 
 to grant them. This is the foundation of his granting special licenses to 
 marry at any time or place, to hold two livings, and the like. On this 
 is also founded the right he exercises of conferring degrees, in prejudice 
 of the two universities. The archbishops and bishops also confirm young 
 people in their several dioceses, consecrate churches and burial grounds, 
 and ordain priests and deacons, and are obliged to visit every parish church 
 in their diocese every three years. They also give institution, and direct 
 induction to all ecclesiastical livings in their dioceses. 
 
 Rectors or vicars, are the parish ministers, and are so called on account 
 of the peculiar nature of the tithes. There is also another description of 
 ministers termed perpetual curates, whose stipends are of course inferior to 
 that of the rectors and vicars, although many of these have benefices which 
 are not worth £80 per annum. All these ecclesiastics, either themselves, 
 or by curate, if they are obliged to employ one, regularly perform divine 
 service in the parish churches, at least once, and in many cases, as in large 
 cities and towns, three times every Sunday, and on all the other days set 
 apart for public worship by the church of .England. They also celebrate 
 marriages and baptisms both in public and private, and church women after 
 childbirth, visit the sick, administer the holy communion on the first Sunday 
 of every month, and on other days, and also to the sick at their own 
 
 * Tomliu's Law Diet. 
 
700 DISSENTERS. 
 
 liouses. They likewise perform the last duties of the church to the dead, 
 by reading the burial service at funerals in the churchyard.* 
 
 DISSENTERS. 
 
 The reading so large a portion daily of the Sacred Scriptures in the 
 established church of England, is alone so great a blessing, as in the judg- 
 ment of many, much more than counterbalances all the imperfections, 
 real or supposed, with which the national church is accused. Another 
 obvious advantage is the perpetuity of her creed and liturgy. The articles 
 remain the same compendium of scriptural truth, the homilies the same 
 deposite 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 as they were in any former times, and will be for all 
 future generations. It is therefore devoutly to be wished that they may 
 remain immovably fixed to enlighten and comfort the people of that 
 favoured land, till time shall be swallowed up in eternity. In a country, 
 however, where the right of private judgment is so fully recognised, it 
 cannot be expected that unanimity in religious opinions should exist. In 
 its principles the church of England is perfectly tolerant. She not only 
 appoints large portions of the Scripture to be read in her public worship, 
 but she directs her members " to read, mark, learn, and inwardly digest" 
 them. There has been no mental slavery in England since the Reforma- 
 tion; therefore men reading the Scriptures judge for themselves. Hence 
 there will necessarily be a diversity of private opinions respecting both 
 doctrine and discipline. 
 
 The laws of England, therefore, consider all denominations of Christians 
 who differ from the established church in doctrine and discipline as dis- 
 senters. These generally dissent from the established church both in 
 the mode of worship and in government. The first time we read of 
 dissenters in England, was in the reign of queen Elizabeth. Evans says, 
 that '* on account of the extraordinary purity which they proposed in 
 religious worship and conduct, they were reproached with the name of 
 puritans.'''' That queen had no great favour for the puritans. She was 
 of opinion that there was very little difference in their sentiments and 
 
 * Claims of the Established Church. — Lloyd's Historical Account of Church Government 
 as it was in Great Britain and Ireland when they first received the Christian Religion. — 
 W. F. Hooke on the Establishment— Bishop Walker's Life of Archbishop Whitgift.— 
 Jewel's Apology of the Church of England. — Burn's Ecclesiastical Law.— Blackstone's 
 Commentaries. — Tomlin's Law Dictionary. — Gibson's Codex Juris Ecclesiastici Anglicani. 
 — Ordination Service. — Hody's History of English Councils and Convocations — Wake's 
 
 State of the Church.— Rennet's Ecclesiastical Synods Johnson's Vademecum — Statutes 
 
 at Large. 
 
DISSENTERS. 701 
 
 practices towards the civil government between them and the Jesuits, and 
 in consequence she inflicted severe penalties upon them for nonconfor- 
 mity. Many of the authors of that period assert, that the puritans were 
 a sect founded by the Jesuits; many of them, they said, were actually 
 concealed Jesuits, for the purpose of sowing divisions in the church of 
 England. The puritans opposed the decent, sober ceremonies of the 
 established church, and made strenuous efforts to procure their total 
 abolition. To this, queen Elizabeth would never agree. This dispute 
 generated a great deal of disturbance and clamour on the part of the 
 puritans, and severe measures to compel conformity, on the part of the 
 crown. Their opposition to government occasioned harsh measures to be 
 resorted to against them, and severe acts of parliament to be passed. The 
 greater the severity of government, the deeper the prejudice of these men 
 took root, and their peculiar opinions increased, in proportion as they 
 were watched and controlled. " They were called puritans," says Dr 
 Hurd, " because they aimed at a purer reformation, but the worst of all 
 was, they wanted to reform the church without reforming themselves." 
 Elizabeth entertained a most thorough hatred at the puritans, and showed 
 little mercy towards them. Grindall, archbishop of Canterbury, a man of 
 great moderation, used all his influence with the queen to soften the rigour 
 of the act of uniformity, but she was inexorable. She inherited all her 
 father's tyrannical temper. She fined and imprisoned these puritans; and 
 even executed such of them as denied her supremacy, as traitors. The 
 first congregation which met separate from the church of England was at 
 Ryegate in Surrey, in the year 1558. They took the new order of church 
 government, then recently established by John Calvin at Geneva, for their 
 model, as all the numerous sects of dissenters have done. It is somewhat 
 curious that no sect of dissenters has chosen the episcopal form of govern- 
 ment, but all have followed the presbyterian model, having parity among 
 ministers as the fundamental principle of their government. 
 
 The rise and increase of the puritans alarmed queen Elizabeth, and she 
 enacted several laws against them, and more were added by her successors. 
 She usually dictated to her parliaments, which merely registered her will 
 without much debate or consultation. " Every person not having reason- 
 able excuse, shall resort to their parish church or chapel, on every Sunday 
 and holiday, on pain of punishment by the censures of the church, or of 
 forfeiting for every offence twelve pence."* " Every person above the 
 age of sixteen, who shall not repair to some church, shall forfeit for every 
 month twenty pounds. And if he shall forbear for a whole year, he shall 
 be bound to good behaviour till he conform. Any person keeping a 
 
 * 1 Eliz. c. 8. 14. 
 
702 DISSENTERS. 
 
 schoolmaster who shall not repair to church or be allowed by the bishop, 
 the keeper shall forfeit ten pounds a-month, and the schoolmaster be 
 imprisoned for one year."* " Every offender, having been once con- 
 victed, shall, without any other indictment or conviction, pay half-yearly 
 into the exchequer £20 for every month afterwards until he conform; 
 which if he neglected, the queen miglit seize all his goods, and two parts 
 of his lands, if he had any."f 
 
 At a convocation of the church, held the 26th of March, 1565, the 
 necessity and propriety of the uniform use of clerical habits were pressed. 
 Those agreeing were required to subscribe volo, and dissentients to write 
 nolo. Out of about one hundred puritan clergy present, sixty-one wrote 
 volo, but the remainder declined, exclaiming, " we shall be killed in our 
 souls for this pollution." These by order of the queen were suspended, 
 and warned that a failure in compliance within three months would subject 
 them to deprivation. It is to be remarked, that the puritans, up to this 
 period, had not separated from the church, and their Iiistorian Neale says, 
 that " the puritans were at a loss how to behave, being unwilling to 
 separate from a church where the word and sacraments were truly 
 administered, though defiled with some popish superstitions. But," 
 continues the same author, " at length, after waiting about eight weeks 
 to see if the queen would have compassion, several of the deprived ministers 
 held a solemn conference with their friends, in which, after prayer and a 
 serious debate about the lawfulness and necessity of separating from the 
 established church, they came to this conclusion; that since they could not 
 have the word of God preached nor tlie sacraments administered without 
 idolatrous gear, (meaning the clerical habits,) and since there had been a 
 separate congregation in London, and another in Geneva, in queen Mary's 
 time, which used a book and order of preaching, administration of the sa- 
 craments and discipline, of which the great Mr Calvin had approved, and 
 which was free from the superstitions of the English service; that therefore 
 it was their duty, in their present circumstances, to break off" from the 
 public churches, and to assemble as they had opportunity in private houses, 
 or elsewhere, to worship God in a manner that might not offend against 
 the light of their consciences.":}: It is sinful terms of communion that 
 can alone justify separation from a true church, and the puritans, in the 
 commencement of their schism, acknowledged the church of England to 
 be a true church. But the puritans being determined to separate from the 
 church, made the wearing the clerical habits a sufficient cause. " It 
 was," says Neale, " the compelling these things (the clerical habits) by 
 law that made them separate."^ After separation, there seems to have 
 
 » 23 Eliz. c. 1. t 29 Eliz. c. 6. \ Neale's Hist, of the Puritans, vol. i. 229. h Ibid. 
 
DISSENTERS. ^03 
 
 been no bond of union nor authority lodged anywhere. A contention 
 raged as fiercely among themselves about the use of the Liturgy, as it had 
 before been esteemed an intolerable grievance to wear a surplice. After 
 much debate, it was determined to adopt the service-book of Geneva 
 compiled by Calvin, but which was eventually laid aside for extemporary 
 prayers. 
 
 On the 20th November, 1572, a number of the separated puritan 
 divines assembled at the village of Wandsworth near London, and consti- 
 tuted themselves into a presbytery. These were afterwards joined by 
 several others. They likewise chose eight lay elders, and added them to 
 this court to compose a government. The queen getting notice of this 
 new government, and yielding to her cherished dislike of the sect, issued 
 a royal proclamation for putting the act of uniformity in strict execution. 
 She also commanded an act of parliament to be passed, enacting that " if 
 any person refusing to repair to church, shall be present at any assembly, 
 meeting, or conventicle, under pretence of any exercise of religion, he 
 shall be imprisoned till he conform, and if he shall not conform in three 
 months, he shall abjure the realm; which if he shall refuse to do, or, after 
 abjuration shall not go, or shall return without license, he shall be guilty 
 of felony without benefit of clergy. And whether he shall abjure or not, 
 he shall forfeit his goods, and shall forfeit his lands during life." 
 
 Neale, their historian and eulogist, in speaking of their. general prin- 
 ciples, says, " that they were not enemies to either the name or functions 
 of a bishop, provided he was no more than a stated president of the college 
 of presbyters in his diocese, and managed its affairs with their assistance. 
 They did not object to set forms of prayer, provided a latitude was allowed 
 to the ministers to alter or vary some expressions, and to use a form of 
 their own conception before and after sermon : neither did they object to 
 such decent and distinct habits for the clergy as were not derived from 
 popery. But, upon the whole, they were the most resolved protestants in 
 the nation, zealous Calvinists, warm and affectionate preachers, and deter- 
 mined enemies to popery, and to everything that had a tendency that 
 way." Readily admitting the truth of Mr Neale's words, yet it seems 
 strange that men professing attachment to episcopacy, should, for the 
 unimportant matter of harmless articles of dress, have broke into an open 
 schism, and established an ecclesiastical discipline in direct opposition to 
 that to which they declared they Iiad no objection, and to a church wherein 
 they also declared that " the word and sacraments were truly administered." 
 But it is to be feared that schisms and divisions in the church are derived 
 from the same source as " wars and fightings"* in the body politic. 
 
 * James iv. 1. 
 
704 DISSENTERS. 
 
 On the accession of the illustrious house of Stuart, the puritans formed 
 the most unbounded expectations of relief and support from the new king, 
 who was known to be of a gentle and mild disposition. They met James 
 on his progress to London, and presented the millenary petition. It was 
 so called from its being said to have been signed by one thousand persons : 
 but in fact there were no more than eight hundred names affixed to it. 
 In this petition, they embodied all their former grievances, with many new 
 objections to the Liturgy, and the whole doctrine and discipline of the 
 established church. Their petition gave great offence to the two univer- 
 sities. They resented the attempt of the puritans to forestall the opinions 
 of the sovereign, and prejudice him against the indigenous church, of 
 which he was become the civil governor. They passed resolutions accord- 
 ingly, depriving such of the puritan clergy as held university degrees, of 
 their honorary titles. The petitioners, however, gained nothing by this 
 petition. James was a mild and tolerant monarch, and, willing to show 
 his moderation, issued a proclamation " toucliing a meeting for the hear- 
 ing, and for the determining things pretended to be amiss in the church." 
 This meeting or conference took place at Hampton Court, the 14th, ICth, 
 and 18th January, 1604. Reynolds, a man of good sense and learning, 
 with four other divines, attended on the side of the puritans. All the 
 bishops attended on the other side. This conference, as might be expected, 
 ended unsatisfactorily to all parties, and its conclusions were rejected by 
 the puritans. Neither party had any very clear notions of wliat is now 
 called toleration. The puritans would yield nothing, but claimed every- 
 thing. They claimed especially to be exempted from the use of habits 
 and ceremonies. With this the king would not comply. The conference 
 was followed by a proclamation from the crown, for enforcing conformity. 
 And fierce debates ensued among those puritans tliemselves, who still 
 nominally adhered to the church, and enjoyed livings, whether they should 
 continue in it or entirely separate from it. An act of parliament was 
 framed, to which James gave his consent, that " no recusant, in not 
 repairing to church, being convicted thereof, shall enjoy any public office, 
 or shall practise law or physic, or be executor, administrator, or guardian. 
 And if any person shall send their children over seas for education, they 
 shall forfeit £lOO, such child be disabled to inherit or take any benefit by 
 gift, conveyance, or devise."* 
 
 The above regards all protestant dissenters in general, but there are 
 certain other statutes which concern their teachers only. No one can take 
 upon himself to teach or preach, without taking tlie oath of allegiance, 
 and the declaration against transubstantiation. And if any person sliall 
 
 * 3 James I. 
 
DISSENTERS. 705 
 
 ake upon Jiim to preach, or teach in any meeting in other manner than 
 according to the practice of the church of England, he shall be liable to a 
 penalty of £20.* No person shall presume to consecrate and administer 
 the sacrament before he be ordained priest according to the form and 
 manner of the church of England.f Besides these general laws, there are 
 two statutes which affect quakers in particular. If any person shall refuse 
 to take the oaths of allegiance and supremacy duly tendered, he shall 
 incur a premunire. $ And if any person shall maintain that the taking 
 of an oath is unlawful, and shall refuse an oath duly tendered, he shall 
 incur a penalty of £5 for the first offence, £lO for the second, and be 
 transported for the third.§ But by the act of toleration, they shall not 
 incur any of these penalties, on their qualifying in the same manner as 
 other dissenters, except that, instead of the oaths at sessions, they make 
 and subscribe a declaration of fidelity, and subscribe a profession of their 
 Christian belief. The Baptists are exempted from signing the 27th article 
 of religion, relating to infant baptism, in order to conciliate their scruples 
 on that head; in other respects they qualify the same as all other dissenting 
 teachers. 
 
 Besides exemption from penalties, dissenters are, by the act of toleration, 
 entitled to certain privileges. They shall not be prosecuted in any eccle- 
 siastical court, for, or by reason of their not conforming to the church of 
 England. But this does not exempt them from paying tithes, or other 
 parochial duties, or any duties to the church or minister, nor from any 
 prosecution for the same. If any dissenter, on being appointed to the 
 ofllce of high constable, petit constable, churchwarden, overseer of the 
 poor, or any other parochial or ward office, should scruple to execute these 
 offices on account of the oaths, he may execute them by deputy, provided 
 that he takes the oaths, and is otherwise approved of. Every minister, 
 preacher, or teacher who has taken the oaths, and subscribed the decla- 
 ration against popery, is exempted from serving upon a jury, or the office 
 of a churchwarden or overseer of the poor, or any other parochial or ward 
 office. But the act does not extend to quaker preachers, or teachers, for 
 they are neither in " holy orders, nor pretended holy orders." 
 
 The laws enacted during the reign of queen Elizabeth were very severe; 
 they are now however mitigated by the act of toleration. But the ne- 
 cessity of supporting an established religion, whose tenets are friendly to 
 the constitution of the state, has been felt in every period of British 
 fiistory. In 1643, an ordinance |! of the long parliament enjoined that the 
 
 * 22 Char. IT. f 14 Char. II. X 5 Elizabeth. § 13 and 14 Char. II. 
 
 II The decrees of the parliament, during all the period which it possessed the supreme 
 power, were called ordinances, being enacted and enforced by the authority of the com- 
 mons alone; ih contradistinction to an act of parliament, which is enacted by the king, 
 ^vith the advice of the three estates of parb'ament; the lords spiritual and temporal, and iha 
 tionimnns, 
 
 4 u 
 
706 DISSENTERS. 
 
 Solemn League and Covenant should be taken throughout England and 
 Wales. This covenant binds to the extirpation of episcopacy. Those 
 who refused to take the covenant were disabled by other ordinances from 
 being of the common council, from filling any office of trust in the city of 
 London, and from practising in any of the courts of law. On the 10th 
 June, 1643, the archbishop of Canterbury was suspended, his temporalities 
 sequestered, and afterwards he was himself put to death. The Directory 
 was ordered to be used in place of the Book of Common Prayer^ and 
 severe penalties were imposed on those who used the latter, even in private. 
 The bishops were abolished, and their lands settled in trustees and sold. 
 Classical presbyteries, and congregational elderships, were established in 
 their place. These again very soon &ank before the rising star of the 
 independents, supported by the favour of Oliver Cromwell. 
 
 By the above mentioned acts, and also the Act of Uniformity, all dissen- 
 ters were liable to certain penalties, from which, however, the toleration 
 act has happily relieved them. This act was confirmed by tlie 10th of 
 queen Anne. The toleration act exempts all dissenters from all penal 
 laws relating to religion. But the members of the church of Rome, as 
 well as those who denied the Holy Trinity, were excepted. All other 
 denominations were freely at liberty to act as their consciences directed 
 them in the matter of religious worship. The act itself is as follows : — 
 
 I. Forasmuch as some ease to scrupulous consciences in the exercise of religion, may bo 
 an eflVctual means to unite their majesty's protestant subjects in interest and affection. II. 
 That none of the acts below,* shall be construed to extend to any persons dissenting from the 
 church of England, that shall take the oaths of allegiance and supremacy, and shall make 
 and subscribe the declaration against popery, which oaths and declaration the justices of the 
 peace, at the general sessions of the peace, are hereby required to tender and administer. 
 No one shall give or pay above the sum of sixpence, nor that more than once, for his or 
 tlieir entry, and for making and subscribing the said oaths and declaration, nor above a 
 further sum of sixpence for a certificate. III. AH persons prosecuted or convicted under 
 the former statutes are hereby discharged. IV. Every person taking the oaths and making 
 the declarations, shall be free from all pains, penalties, and forfeitures enacted by 35 Eliz. 
 c. 1. and 22 Char. II. c. 1, and from all prosecution in any ecclesiasticjil court. V. Provided 
 that, if any assembly of persons dissenting from the church of England shall be held with 
 the doors locked, barred, or bolted, during any time of the meeting, every person attending 
 such meeting shall be liable to all the pains and penalties as before, VI. Nothing in this 
 act shall exempt any person from paying tithes or other parochial duties, or any other duties 
 to the church or minister, nor from any prosecution for the same. VII. Every dissenter 
 chosen to any office, and scrupling to take the oaths, shall be allowed to serve by deputy, 
 provided the deputy takes the oaths- VIII. No dissenter in holy orders, or pretended holy 
 orders, nor any preacher or teacher of any congregation of dissenting protestints, that shall 
 take the oaths and make the declaration, and shall also declare his approbation of and sub- 
 scribe the Articles of Religion, except the .34th, 35th, and 36th, and these words of the 20th 
 article, " the church hath power to decree rites or ceremonies, and authority in Controver- 
 sies of faith," shall be liable to any pains or penalties. IX. Provides that those taking the 
 
 • 23 Eliz: c. 1. ^g Eliz; c.'6.'i' EHz. c. 2. 3 Jam. I . c, 4. 3 Jam. T. c. 5. 25 Chai. 1 1, c. 2. 
 aOUhar. II. c. 1. 
 
DISSENTERS. 707 
 
 oaths, Sue., shall be recorded, and shall not preach with locked doors, &c. X. Makes an 
 exception in favour of Baptist teachers or preachers from signing a part of the 27th article 
 touching infant baptism. XI. Persons in holy orders or pretended holy orders complying 
 as above, are exempted from serving on any jury, and from being chosen or appointed to 
 bear the offices of churchwarden, overseer of the poor, or any other parochial or ward office, 
 or other office in any hundred or shire, city, town, parish, division, or wapontake- XII. 
 Justices of the peace may tender the oaths to any dissenter, and may commit him on refusal, 
 without bail or mainprize. XIII. Every person shall make and subscribe the aforesaid, 
 and also this declaration of fidelity :— I, A. B., do sincerely promise and solemnly declare 
 before God and the world, that I will be true and faithful to king William and queen Mary ; 
 and I do solemnly profess and declare, that I do from my heart abhor, detest, and renounce, 
 as impious and heretical, that damnable doctrine and position, " that princes excommuni- 
 cated or deprived by the pope, or any authority of the see pf Rome, may be deposed or 
 murdered by their subjects, or any other whatsoever. And 1 do declare that no foreign 
 prince, person, prelate, state, or potentate, hath or ought to have, any power, jurisdiction, 
 superiorit)', pre-eminence, or authority ecclesiastical or spiritual within this realm." And 
 shall subscribe a profession of their Christian belief in these words: — " I, A. B., profess 
 faith in God the Father, and in Jesus Christ his eternal Son, the true God, and in the Holy 
 Spirit, one God blessed for evermore; and do acknowledge the Holy Scriptures of the Qld 
 and New Testament to be given by divine inspiration :" which declaration and subscription 
 shall be recorded at the quarter sessions, which shall exempt the parties from pains and 
 penalties against popish recusants or protestant noncoziformisLs. XIV. If any person refuse 
 to take the oaths, &c., he shall not be admitted to make and subscribe the declarations, either 
 before or after conviction of popish recusancy, unless he can within thirty-one days produce 
 tAvo sufficient protestant witnesses, to testify upon oath that they believe him to be a pro- 
 testant dissenter. XV. That until such certificates are produced, the justice of the peace is 
 required to take a recognisance with two sureties in the sum of fifty pounds, to be levied on 
 his goods and chattels, &c., failing which to be committed to prison till he produce such 
 certificates and witnesses. XVI. All the laws made and provided for the frequenting of 
 divine service on the Lord's day, commonly called Sunday, shall be still in force, and executed 
 against all persons that offend against the said laws, except such person come to some con- 
 gregation or assembly of religious worship allowed or permitted by this act. XVII. 
 Neither this act, nor any clause, article, or thing therein contained, shall extend, or be 
 construed to extend to give any ease, benefit, or advantage to any papist or popish recusant 
 whatsoever, or any person who shall deny in his preaching or writing the doctrine of the 
 blessed Trinity. XVIII. If any person at any time shall willingly and of purpose, mali- 
 ciously or contemptuously, come into any cathedral or parish church, chapel, or other congre- 
 gation permitted by this act, and disquiet or disturb the same, or misuse any teacher or 
 preacher, such person shall find two sureties to be bound by recognisance in fifty pounds ; 
 and upon conviction shall suffer the pain and penalty of twenty pounds. XIX. No congre- 
 gation or assembly for religious worship shall be permitted, until the place be certified to 
 the bishop of the diocese, or to the archdeacon, or to the justices of the peace at the general 
 quarter sessions, in which such meeting shall be held and registered in the said bishop's or 
 archdeacon's court, or quarter sessions, for which he shall pay sixpence.* 
 
 It was believed for many years that the toleration act only suspended 
 the penalties, but did not take away the crime of nonconformity. It was 
 supposed that a dissenter could be fined for refusing to serve a civil office, 
 and at the same time incur all the penalties of the test and corporation 
 acts, if lie took upon him any such office, without taking the sacrament 
 according to the form and?custom of the church of England. About the 
 
 * 1 Willi;tm and Mar^ , c. 18. 
 
708 DISSENTERS. 
 
 year 1762 Allan 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. 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, v/ho had given 
 judgment for the defendant. The house ordered the 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, except the baron Perrot, were of opinion, " that the corpo- 
 ration 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 church, abolishing the crime 
 as well as the penalty of non-conformity, allowing and protecting the 
 dissenting worship; and therefore that the defendant may plead this dis- 
 ability in bar of the present action." The whole of the judges' arguments 
 were summed up by the learned lord Mansfield, and upon this ground 
 the house of lords affirmed the judgment of the commissioners' delegates. 
 
 Ever since the toleration act was 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 for the church of 
 England, and resolution to support it, to add, that they will maintain the 
 toleration inviolable. 
 
 A protestant dissenter might sit in either house of parliament, being 
 duly qualified, and taking the oaths. Roman Catholics did not enjoy 
 altogether the same privileges as other dissenters. They could not sit in 
 either house of parliament, the declaration against transubstantiation 
 proving an effectual barrier. But all the severe restrictions to which they 
 were formerly exposed, were removed by what may be called their tolera- 
 tion act. It placed them under the same protection as protestant dis- 
 senters, whilst it left them equally under the disabilities of the corporation 
 and test acts. In the reign of George IV. an act was passed, abrogating 
 the test and corporation laws. By a subsequent act, the act of 30 Char. 
 II., against transubstantiation, invocation of saints, and the sacrifice of the 
 mass was repealed, and every office under the crown laid open to all 
 irrespectively, except that Roman Catholics are disabled from being lord 
 chancellor of England or Ireland, or lord lieutenant of the latter kingdom.* 
 
 The dissenters are now a numerous and very respectable body, the 
 greatest proportion of whom are methodists of the Wesleyan and Whitfield 
 connexion, although there are many other denominations, deriving their 
 
 * 31 Geo. III., which see p. 327. 
 
 I 
 
CHURCH OF SCOTLAND. 70» 
 
 names from their various tenets. The descendants of the puritans are 
 now distinguished by the several denominations of presbyterians, inde- 
 pendents, and baptists. Each have a separate society in London, for the 
 support of the poor ministers of their several denominations. Many of 
 the chapels belonging to the presbyterians have fallen into the hands of 
 the Unitarians, who are also a numerous body. Many of the laity, how- 
 ever, who had joined dissenting bodies from the want of church accom- 
 modation in their own parishes, returned to the church when the new 
 churches were built in the more populous places, by parliamentary grants.* 
 
 THE ESTABLISHED CHURCH OF SCOTLAND. 
 
 It is now impossible to ascertain by whom, or by what means the 
 Christian church was first planted in Scotland. It is certain that it was 
 very early introduced. In our sketch of the church of England, we have 
 shown that St Paul planted the church there, while the Roman armies 
 were still in Britain. The Romans never subdued Scotland, but they 
 penetrated a considerable way into it. It is more than probable, it is 
 almost certain, that Christian teachers would follow in the rear of their 
 armies. TertuUian, an ancient father, in his book against the Jews, 
 which he wrote about the year 200, expressly mentions, " that the parts 
 of Britain which had been inaccessible to the Romans, were subdued to 
 Christ." The church must therefore have been planted here before the 
 time of TertuUian. Had there been only a few individuals who had been 
 converted to the Christian faith, it is scarcely probable that TertuUian 
 would have asserted that the kingdom was " subdued to Christ." In 
 those early days, Christianity was propagated with a rapidity of which we 
 have now no conception. It is natural to suppose that it would require a 
 number of years to convert a barbarous nation from gross idolatry to the 
 worship of the true God. This appears, however, by TertuUian's account, 
 to have been accomplished before the end of the second century. Dr 
 Lloyd, a learned antiquary, on the authority of Bede, whom he quotes, 
 says, that " the Scottish Picts who inhabited that part of Scotland, which 
 was next to the Britons, received the Christian faith at their hands. Bede 
 tells us, that in the year 412, St Ninian, a Briton, was the author of their 
 (the Scots) conversion, and that at his preaching they left the error of 
 idolatry, and received the belief of the truth. There is no reason to doubt, 
 that the religion which he planted then among the Picts was the same that 
 
 * Neale's History of the Puritans. — Burn's Ecclesiastical Liaw. — Tomlin's Law Dic- 
 tionary,. — Appendix to Dr Furneaux's Letters to Mr Justice Blackstorie.— Statutes at 
 Liirge. 
 
710 CHURCH OF SCOTLAND. 
 
 was establislied at Rome itself, and in the civilized Britain, and in all other 
 provinces of the empire."* This conversion happened while Britain was 
 still under the Roman government, and long before popery was known. 
 Ninian was ordained a bishop by Martin, bishop of Tours, in France. 
 He erected a church at Whitehorn, in Galloway, which from its being 
 built of white stone, was called the Candida casa, or the white chapel. 
 " There," says Lloyd, on the authority of Bede, " living near the Picts, 
 he was often conversant witli them, and so had opportunity to go in unto 
 their country : when having made a general conversion of that people, he 
 did all the other parts of an apostle ; he consecrated bishops among them; 
 he ordained priests, and divided their country into parishes : and so having 
 formed and settled their church, he died about eighteen years after their 
 conversion."f That division of the kingdom which lies north of the 
 Grampian hills, continued in idolatry long after Ninian had settled the 
 church in the southern division. Columba, a presbyter, has the honour 
 of planting the church north of these hills. He, with twelve companions, 
 settled in Hyona, about the year 563. About that time the monastic 
 •!ife came into fashion in Europe. By patience and perseverance Columba 
 succeeded in converting Bridei, a prince of a powerful clan. By his 
 authority his people became nominal Christians, and Christianity gra- 
 dually spread through all the northern parts. He erected monasteries in 
 different parts of the country, which became the nurseries of religion and 
 learning. In fact, they were the schools and universities of those ages. 
 The bishops were chosen from among those monks, and generally resided 
 in these monasteries, and sent their clergy to officiate in sacred things at 
 different parts of the district. The origin of small parishes, and of the 
 first settlement of stated parochial ministers, were exactly the same in 
 Scotland, as we have already described, under the Church of England. 
 Patronage became an hereditary right in the same manner. It is therefore 
 unnecessary to repeat it here. 
 
 It is certain there were monks and secular priests, who were called 
 Culdees, not only among the Scots, but also among the Britons and Irish. 
 Sibbald says they were originally the clerks or clergy who landed at St 
 Andrews with St Regulus, whom the old register of St Andrews calls a 
 bishop. He says they formed his chapter, and lived in cells, hence their 
 name of Culdees.| " The convents of these Culdees," says Goodall, 
 " constituted the chapter, and had the election of the bishops in the 
 several places where bishops were established. At St A ndrews they con- 
 tinued to elect the bishops, till, in the year 1140, a priory was erected 
 there, and filled with canons regular, who after that seem to have joined 
 
 * Lloyd's Historical Account, f Ibid. \ Sibbald's History of Fife, p. 69. 
 
CHURCH OF SCOTLAND. 711 
 
 with tlie Culdees in the elections of bishops until the year 1273; about 
 this time the canons jostled the Culdees entirely out of their right." Mr 
 Pinkerton, a learned antiquary, speaking of the Culdees, says: " It is 
 clear, from ancient charters, that far from being enemies to episcopacy, 
 they were the very men who chose the bishops. Doubtless, he who 
 expects to find in Scotland matters not to be found in any neighbouring 
 country, only shows his own credulity; and that, from the fourth century, 
 every christian country had its bishops is too well known to be insisted on. 
 When St Martin first brought monks into Europe, about the year 380, 
 their rigid life acquired them high esteem. In short, the bishops were 
 chiefly chosen from their (the Culdees') order : and afterwards usurping the 
 rights of the people, they began to choose the bishops from among them- 
 selves. Hence, in the middle ages, almost every monastery had its bishop, 
 almost every bishopric its monastery."* 
 
 " The Culdees were not confined to the priory of St Andrews, but were 
 scattered over the country : and these places which are designed Kils^ as 
 Kihienie, were their seats. They were wherever a monastery or priory 
 came to be built afterwards ; yea, in the cathedrals were some of them, as 
 at Abernethy, Dunkeld, and Brechin. They lived at first upon the labour 
 of their hands, and the oblations on the altar ; afterwards donations were 
 made to them."f 
 
 Spottiswood says, that Congallus, on his succession to the throne, 
 *' considering that the contempt of ministers ever breedeth contempt of 
 religion, did carefully provide for their necessities, appointing to them 
 mansion places at their churches where they served, and with a compe- 
 tent portion of land thereto adjoining, and declaring the tenth of all corns, 
 fruits, herbs, and flocks, which did either produce or nourish — to appertain 
 properly to the church." This is the commencement of the tithes or tiends 
 of Scotland, but which were commuted in the stormy reign of Charles I. 
 into an assessment on the land, payable, not in the first instance as formerly 
 by the tenant, but by the proprietor. The favour shown to the Scottish 
 church by its " nursing fathers," soon excited the pope's avarice and am- 
 bition. He accordingly despatched emissaries to take advantage of this 
 new opening for his universal dominion.. For several centuries the Scot- 
 tish ecclesiastical history is wrapped up in all the contradictions and uncer- 
 tainties of monkish traditions. We meet with little very interesting down 
 to the era of the Reformation, except the unceasing efforts of the See 
 of Rome to maintain its supremacy, and the unspeakable injury done to 
 the church, by compelling the bishops to repair to Rome for consecration, 
 and thereby to leave their flocks without a shepherd. TIjese venerable 
 
 i 'iiikerton's Enquiry, vol. ii. p. G. c. 1. f Sir R. Sibbald's Hist, of Fife, pp. 72, 73. 
 
712 CHURCH OF SCOTLAND. 
 
 fathers were frequently detained there for years, on some imaginary dispute. 
 There they frequently remained so long before these disputes were settled, 
 or before the pope would consecrate them, that death surprised them either 
 in Rome itself, or on their journey homewards. This occasioned a new 
 election of a bishop, a new journey to Rome, and new delays, vexations, 
 and disputes. All these circumstances, however, added prodigiously to the 
 pride, power, and wealtlj, of the Roman pontiff. But the vacant diocese 
 in the mean time was left without a governor, and both the clergy and 
 the people were left entirely without oversight or control. 
 
 The opinions of Wickliffe were extensively adopted in England, and even 
 found their way into Scotland, where those who embraced them were called 
 the " Lollards of Kyle." But the reformed doctrines were not preaclied 
 openly by any person of eminence before the year 1524, when Patrick 
 Hamilton, abbot of Ferme, publicly promulgated doctrines inimical to 
 those of the Latin church. In the year 1542, the parliament enacted, in 
 opposition to the protest of the spiritual estate, " that it should be lawful 
 for all our sovereign lady's lieges, to have the holy writ of the Old and 
 New Testaments in the vulgar tongue, of a good and true translation, with- 
 out incurring any crime for hearing or reading the same." The reformed 
 doctrmes continued to gain proselytes, particularly through the exertions 
 of John Knox, until they were embraced by the greater portion of the na- 
 tion, including some of the principal nobles and gentlemen. These entered 
 into a bond, whereby they renounced the doctrines and authority of the 
 church of Rome, and engaged to maintain and promote the doctrines then 
 promulgated. In the year 1558, the reformers assumed the designation 
 of the Congregation, and decreed "that in all parishes the curates 
 should be instructed to read the common prayers and lessons of the Old 
 and New Testament on Sundays and other festival days, according to the 
 form set forth in the Book of Common Prayer." French troops were 
 brought into the country, for the purpose of suppressing the Reformation 
 and enslaving the kingdom. These were expelled by the assistance of 
 queen Elizabeth. A parliament, or rather a convention of the three Estates, 
 for the queen never ratified it, was called in the year 1560, winch for ever 
 abolished the pope's power and authority in Scotland, and prohibited the 
 exercise of the religion of Rome under pain of death. The Estates also 
 ratified and approved the Confession of Faith drawn up by Knox. 
 
 In the course of the same year, the First Book of Discipline was 
 drawn up, approved, and subscribed, by the privy council. Knox and his 
 coadjutors also settled the government of the church, by superintendents, 
 parochial ministers, and readers, and divided the whole kingdom into dio- 
 ceses. Spottiswood says, "the superintendents held their office during 
 life, and their power was episcopal." Mr Erskine of Dun, one of their 
 
 I 
 
CHURCH OF SCOTLAND. 713 
 
 number, says, " I understand that a bischope or superintendent to be but 
 ane office, for where khe ane is the uther is." This government continued 
 from 1560 to 1572, when a General Assembly, which met at Leith, drew 
 up a concordat, in which it was agreed, " that those who had the old 
 prelatical power were also to have the old prelatical names and titles of 
 archbishops and bishops," and accordingly all the vacant sees were filled up. 
 This order continued till the year 1575, when Mr Andrew Melville, in 
 the General Assembly of that year, " propounded a question touching the 
 lawfulness of the episcopal function." From that period the controversy 
 between the episcopalians and presbyterians continued with much bitterness 
 and exasperation on both sides, till the year 1580. In that year, the As- 
 sembly passed an act, declaring " the office of a bishop, as it is now used, 
 and commonly taken within this realm, hath no sure warrant, authority, 
 nor good ground, out of the book and scriptures of God, but is brought in 
 by the folly and corruption of men's invention, to the great overthrow of 
 the true kirk of God." They threatened the bishops with excommunication 
 if they did not instantly resign their offices. This act was passed in the 
 assembly which met in July; at that period the General Assembly met twice 
 every year, and at the second or October meeting, the Assembly appointed 
 a committee to erect a presbyterian government. Calderwood says, " it 
 was thought meet that the clerk of register be requested to concur with 
 Robert Pont and some others, or any three or four of them, to devise a 
 plot of the presbyteries and constitution of the same as seemelh best in their 
 judgments, to be reported again to the next General Assembly." The or- 
 der, " to devise a plot of the presbyteries," was given by the Assembly in 
 1580. But it was the latter end of May, 1581, before the presbytery of 
 Edinburgh was erected. It was the first in Scotland, and consisted of 
 sixteen ministers of the city and adjacent parishes, and of some barons and 
 gentlemen out of each as lay-elders.* The presbyterian form of govern- 
 ment did not, however, acquire a legal establishment till the year 1592. 
 James VI. assented that year to an act, declaring, " that the act of parlia- 
 ment made in the year 1584 against the discipline of the kirk, and liberly 
 thereof, should be abrogated and annulled, and a ratification granted of 
 the discipline whereof they were then in practice." As soon as the pres- 
 byterian government was thus established, a commission drew up the Se- 
 cond Book of Discipline, in accordance with the change in the go- 
 vernment. " Though," says Willison, " the civil powers after the year 
 1560 were favourable to the Reformation ; yet our reformers had great 
 and long struggling with many who were addicted to prelacy and several 
 
 * Colder wood's History. 
 4 X 
 
714 CHURCH OF SCOTLAND. 
 
 popish errors and superstitions : but it pleased the Lord so far to counte- 
 nance and help them, that a national covenant was framed and entered into 
 for the support of the Reformation. This covenant was at first subscribed 
 by the king and his household, in the year 1580, and afterwards, by per- 
 sons of all ranks in the year 1581, and again by all sorts of persons in the 
 year 1590 ; and afterwards presbyterian government, and all the pieces 
 of reformation then attained unto, were solemnly ratified by the king and 
 parliament in the year 1592."* "But these bright times did not long 
 continue j clouds did soon arise." The presbyterian establishment con- 
 tinued no longer than eight years, for, in the year 1600, James restored the 
 old titular bishops to the government of the church, and to their political 
 station, as one of the three estates of the realm. For the complete accom- 
 plishment of his designs of re-establishing episcopacy, James convoked 
 several assemblies, but especially that at Glasgow in the year 1610, wherein 
 it was agreed to recognise a regular episcopacy. For that purpose, three 
 of the titular bishops proceeded to London, and received consecration 
 from the hands of the English bishops appointed for that purpose by the 
 king. On their return they consecrated their brethren, which order con- 
 tinued till the celebrated assembly, which met at Glasgow in the reign of 
 Charles I., anno 1638. 
 
 That assembly condemned and annulled the decisions of six general 
 assemblies, together with the court of High Commission, the Book of 
 Common Prayer, the Book of Canons, and the Book of Ordination. They 
 next deposed the bishops, " declared them infamous," and excommunicated 
 them, and " declared them to be of those whom Christ commandeth to be 
 holden by all and every one of the faithful as ethnics and publicans." This 
 excommunication has never been rescinded. At this time also the solemn 
 league and covenant was adopted as the national bond of union, and 
 imposed as the terms of admission to the Lord's supper. By this covenant, 
 those who sign it, solemnly swear " to endewcour the extirpation of popery 
 and prelacy.^'' In the year 1641, the presbyterian became again the 
 ecclesiastical government established by law. " Accordingly, the solemn 
 league and covenant was again agreed upon, and sworn, in the year 1643, 
 for maintaining, advancing, and carrying on the work of reformation in 
 the three kingdoms. In this covenant, all ranks engaging bound them- 
 selves to personal reformation, and in their several stations to endeavour 
 national reformation, to preserve the protestaut religion, abolish popery, 
 prelacy, superstition, schism, profaneness, and whatsoever shall be found 
 contrary to sound doctrine, and the power of godliness. "f The present 
 Confession of Faith was drawn up and agreed upon by the assembly of 
 
 * WilHson's Teslimonj-, &c., p. 5. t Test. , p. 9. 
 
CHURCH OF SCOTLAND. 715 
 
 divines which met at Westminster, together with the^Larger and Shorter 
 Catechisms, the Directory for worship, with a Directory for church govern- 
 ment, church censures, and ordination of ministers. In the year 1649, 
 the parliament passed an act abolishing patronage, and vested in the 
 people the right of electing their own ministers. During the protectorate, 
 the divine right of presbytery was crushed under the iron hoof of Crom- 
 welFs dragoons. He suffered neither general assemblies, nor synods to 
 meet, and even forcibly dissolved one assembly, and drove the ministers 
 out of the city, " after he had invaded and oppressed the country with an 
 army of sectaries." " The crowning of Charles II.," says Willison, " drew 
 down the wrath of the sectarian army upon us, who invaded the land, shed 
 much blood, conquered us, and kept us in bondage ten years. During 
 which time, a sinful toleration of sectarian errors was granted by Cromwell 
 and his council in Scotland." * 
 
 On the restoration of Charles II., in 1660, he summoned a parliament, 
 which " razed the late glorious work of the Reformation, and all its carved 
 work broke down with hammers as it were, all at once."t The parlia- 
 ment, by the Act Rescissory, annulled all the parliaments from 1640 to 
 1661, asserted the king's supremacy in all causes civil and ecclesiastical, 
 and declared all meetings and assemblies, leagues and covenants, without 
 the king's authority, to be unlawful. In particular, they declared tlie so- 
 lemn league and covenant to be unlawful, and absolved all men from all iia 
 obligations, and commanded that instrument to be burnt by the common 
 hangman, as it had been in London. Presbytery, together with all that 
 had been done in the late period, was overthrown with marks of the greatest 
 indignity. Diocesan bishops were restored to their dignities and jurisdic- 
 tions. And the act of 1592, and all other laws which ascribed ecclesiastical 
 power to the presbyterian courts, were repealed. The king by proclama- 
 tion declared Iiis royal pleasure in restoring the government of the church, 
 by archbishops and bishops, as it stood in the year 1637. Accordingly, 
 Mr James Sharpe and other three ministers went to London, and were 
 first ordained deacons, next priests, and afterwards consecrated bishops. 
 On their return they consecrated others to the vacant bishoprics, and they 
 all took their seats in parliament as one of its estates, the old line of bishops 
 having all died out. 
 
 The ejected ministers began to preach to those who still adhered to pres- 
 bytery, at first in private houses, but afterwards, as their followers increased, 
 they preached in the open air. By an act 1670, these meetings were dis- 
 charged as seditious assemblies and conventicles, under penalties which 
 gradually increased, until at last the punishment of death and confiscation 
 
 Test., p. 12. f Willison. 
 
716 CHURCH OF SCOTLAND. 
 
 Was denounced. The government enacted a toleration for these ministere 
 and their hearers, or an indulgence as it was called, to some of the pres- 
 byterian ministers to preach in vacant churches, under certain limitations; 
 such as their being confined within their own parishes, and not encourag- 
 ing those of other parishes to resort to them, forbearing to lecture before 
 sermon, not preaching in churchyards, and not admitting unindulged mi- 
 nisters to assist them. This toleration was cheerfully accepted by most of 
 the presbyterians; but a party, known by the name of Covenanters, rejected 
 and refused any toleration from a " magistrate, as a sinful encroachment 
 upon Christ's headship over the church." Some of them ** condeinned 
 the indulged so far, as to preach up a separation from them ; upon whicli 
 followed very sad and mournful divisions among the people of God^ even 
 Avhile under violent persecution, the fruits whereof continue to this day.*' 
 These covenanters, after undergoing a bitter persecution, were at last 
 driven to take up arms against the government and in self-defence, but 
 they were deficient in unanimity of purpose, and notwithstanding some 
 slight successes at their first rising, they were totally defeated and dispersed 
 at Both well Bridge. 
 
 On his accession, James II., by virtue of his prerogative royal, dis- 
 pensed with laws at his own pleasure, and particularly suspended all the 
 penal laws against Roman catholics. By proclamation, 1687, he suspended 
 all the penal laws against presbyterian non-conformists, and gave liberty 
 to all his subjects to meet and serve God in their own way and manner, 
 either publicly or privately. Enjoining them merely, to take care that 
 nothing be taught or preached that might anywise tend to alienate the 
 hearts of his people from him or his government. This toleration was 
 generally accepted, and the presbyterian ministers who were abroad re- 
 turned home, and erected meeting-houses. It however made a schism in 
 that body, and it is in the present day gravely stated, that "it is deeply 
 to be lamented that most of the presbyterian ministers in Scotland accepted 
 of it, and some of them sent an address to the king, thanking him in their 
 own name and that of their brethren, for his gracious and surprising 
 favour, and promising an entire loyalty in doctrine and practice." * 
 
 On the Revolution which took place in 1688, the presbyterians in the 
 five associated shires rose en masse, and " rabbled " out the clergy from 
 their houses and livings, and reduced them to beggary and want. In April 
 1689, a convention of estates met at Edinburgh, and declared in their 
 Bill of Rights, " that prelacy, and the superiority of any office in the 
 church above presbyters, is, and hath been, a great and insupportable 
 grievance and trouble to this nation, and contrary to the inclinations of 
 
 * Test. Ass. Syn. of Orig. Seceders, p. 35. 
 
CHURCH OF SCOTLAND. 717 
 
 the generality of the people ever since the Reformation, (they having re- 
 formed from popery by presbyters,) and therefore ought to be abolished." 
 Accordingly episcopacy, which had been forced upon the people at the 
 point of the sword, during the evil days of Charles II., was formally 
 abolished by act of parliament in July 1689, and all acts and statutes 
 formerly passed in its favour were rescinded. The greater part of the 
 episcopal clergy were immediately ousted from their livings, and in April 
 1690, all the surviving presbyterian ministers were restored to the vacant 
 parishes. The same parliament repealed the act for the king's supre- 
 macy in ecclesiastical causes, also those against conventicles and non- 
 conformity, and for subjecting persons to penalties for subscribing the 
 solemn league and covenant. In the session of June 1690, the West- 
 minster Confession of Faith was read before parliament, and ratified. 
 Presbyterian government and discipline was at the same time established, 
 and all the acts made against it were formally repealed. The five articles 
 of Perth were also repealed. The General Assembly was appointed to 
 meet for the first time under the new establishment in October 1690. At 
 this meeting lord Carmichael was the royal commissioner. He presented 
 William's letter to the Assembly, " expressing his affection for them, but 
 pressed calmness and moderation in their proceedings in very strong terms, 
 yea told them, that his authority should never be a tool to their irregular 
 passions." 
 
 The presbyterian establishment is governed by kirk sessions, presbyteries, 
 synods, and general assemblies. The form of worship is extemporary, 
 " the ministers being the mouths of the people unto God." And the Di- 
 rectory asserts " that the liturgy hath been a great means to make and 
 increase an idle and unedifying ministry, which contented itself with set 
 forms, made to their hands by others, without putting forth themselves to 
 exercise the gift of prayer, with which our Lord Jesus Christ pleaseth to 
 furnish all his servants whom he calls to that office." And " the spirit of 
 prayer is given unto all the children of God in some measure, for enabling 
 of their hearts to conceive, and their tongues to express, convenient de- 
 sires unto God." The Confession of Faith maintains, that " by the decree 
 of God, for the manifestation of his glory, some men and angels are pre- 
 destinated unto everlasting life, and others foreordained to everlasting death. 
 These angels and men, thus predestinated and foreordained, are particularly 
 and unchangeably designed, and their number is so certain and definite, 
 that it cannot be either increased or diminished." — " Neither are any other 
 redeemed by Christ, effectually called, justified, adopted, sanctified, and 
 saved, but the elect only."—" They whom God has accepted in his Be- 
 loved, effectually called, and sanctified by his Spirit, can neither totally nor 
 finally fall away from the state of grace, but shall certainly persevere therein 
 
718 CHURCH OF SCOTLAND. 
 
 to the end, and be eternally saved." The 25th article of the treaty of 
 union gave the presbyterian establishment a degree of security which it did 
 not before possess. It removed much of that jealousy with which it viewed 
 its predecessor, the humbled episcopal church. When a bill was brought into 
 the Scottish parliament, to grant the episcopalians a toleration, and relieve 
 them of the persecution they then sustained, the presbytery of Edinburgh 
 presented so violent a remonstrance that the bill was withdrawn. In their 
 remonstrance the Assembly declared, *' that to grant any toleration to those 
 of the episcopal way was to establish iniquity by law." 
 
 In our account of the united church of England and Ireland, we have shown that persons 
 presented to a benefice are tried, ordained, admitted and inducted by a bishop. In the 
 establishment of Scotland, the same processes are performed by a college of presbyters, acting 
 by their moderator. In both cases tlie idea of an establishment implies that in the admission 
 of its ministers, the civil and ecclesiastical laws should concur. Principal Hill has arranged 
 this information under four heads, and whose respectable authority we here chiefly follow : 
 I. Trial of qualifications. II. Presentation. III. The call, or voice of the people. IV. 
 The deed of the presbytery. 
 
 1. Trial of qualifications — The laws of the state require that the candidate shall take 
 the oath of allegiance. The ecclesiastical laws require the presbytery to try, examine, and 
 finally decide, regarding his doctrine, literature, and moral character. On any of these 
 points no appeal is permitted from an ecclesiastical to a civil court. The previous education, 
 amount of testimonials from professors in any of the universities, the nature of the exercises 
 for trial, and several other minor requisites for a license, are all fixed by standing laws. 
 After a full course of philosophy in one of the universities, and the study of divinity for the 
 prescribed time, a student may be proposed to a presbytery for trial. Previous to which, 
 however, the consent of the synod must be obtained. Should any report unfavourable to 
 the student's character be communicated to the synod by any presbytery within its jurisdic- 
 tion, his trials cannot proceed till inquiry is made. A student suffering oppression or injus- 
 tice in his trials from the presbytery, has the right of appeal to the synod, and eventually 
 to the general assembly. Licenses to preach granted by English dissenting classes, or by 
 any foreign Christian communities, are not recognised by the Scottish establishment. "The 
 general assembly did, and hereby do, enact and prohibit all persons educated or residing 
 within the bounds of this church, from going out of its bounds to obtain licenses to preach; 
 and prohibit all preachers, licensed by this church, from going without its bounds to obtain 
 ordination, unless they are called to a particular congregation in another country. And 
 enacts, that licenses obtained in this manner shall not be received, or have any effect in this 
 church ; and such preachers as contravene this act, shall forfeit the license formerly given 
 them, and be no longer entitled to the pi-ivileges which belong to a preacher of the gospel in 
 this church."* 
 
 By act of assembly t no person can be licensed, ordained, or admitted, respectively, unless 
 they subscribe the following formula, by which they testify their attachment to the doctrine, 
 worship, discipline, and government of the established church : " I do hereby declare, that 
 I do sincerely own and believe the whole doctrine contained in the Confession of Faith, 
 approven by the general assemblies of this national church, and ratified by the law in the 
 year 1690, and frequently confirmed by divers acts of parliament since that time, to be the 
 truths of God; and I do own the same as the confession of my faith. As likewise I do 
 own the purity of worship presently authorized and practised in this church ; and also the 
 presbjterian government and discipline, now so happily established therein : which doctrine, 
 worship, and church government, I am persuaded are founded upon the word of God, and 
 agreeable thereto. And I promise, that, through the grace of God, I shall firmly and 
 
 * Act ix. General Assembly 1779. + Act x. Assembly 17 H. 
 
CHURCH OF SCOTLAND. "719 
 
 constantly adhere to the same ; and to the utmost of my power, shall in my station, assert, 
 maintain, and defend the said doctrine, worship, discipline, and government of this church , 
 by kirk sessions, presbyteries, provincial synods, and general assemblies: and that I shall in 
 my practice conform myself to the said worship, and submit to the said discipline and govern- 
 ment, and never endeavour, directly or indirectly, the prejudice or subversion of the same. 
 And I do promise that I shall follow no divisive courses from the present establishment in 
 this church ; renouncing all doctrines, tenets, and opinions whatsoever contrary to, or incon- 
 sistent with, the said doctrine, worship, discipline, and government of this church." 
 
 In this early stage, candidates are denominated probationers. They are un^er the 
 inspection, and in some respects subject to the orders of the presbytery within which they 
 reside. During the period of their probation they are not authorized to administer the 
 sacraments, but are licensed to preach. A title is not necessary, as in England, before 
 obtaining orders. A probationer, therefore, remains without any regular employment or 
 fixed charge, until he receive a presentation. But he mny assist any settled minister who 
 is disabled by age or sickness. W hen he is presented by a patron to a charge, he undergoes 
 a second trial, and again subscribes the above formula, If the presbytery declare him to be 
 unqualified either in doctrine, literature, or moral character, his presentation is void. But 
 the synod or assembly may reverse this decision on appeal, and then the presentation is good. 
 II. Presentation. — The assembly of the year 1565, expressed their opinion on this head 
 to queen Mary, as follows: " Our mind is, not that her majesty, or any other patron, should 
 be defrauded of their just patronages; but we mean, whensoever her majesty, or any other 
 patron, do present any person unto a benefice, that the person presented should be tried and 
 examined by the judgment of learned men of the church, such as are the present super* 
 intendents; and as the presentation unto the benefice appertains unto the patron, so the 
 collation, by law and reason, belongs unto the church ; and the church should not be de- 
 frauded of her collation, no more than the patrons of their presentation ; for otherwise, if it 
 be lawful to the patrons to present whom they please, without trial or examination, what 
 can abide in the church but mere ignorance?" An act of parliament in 1567, ordains that 
 " the presentation of laik patronages alwaies (shall be) reserved to the just and ancient 
 patrones ; and that the patroun present ane qualified persoun within sex monthes to the 
 superintendent of thay partis quhair the benefice lyes."* The act which established the 
 presb} terian government in 1592, ordains that all the presentations to benefices, which had up 
 to that date been executed by the bishops, were to be devoted to the presbyteries ; who were 
 " bound and astricted to receive and admit quhatsumever qualified minister was presented be 
 his majestie or laick patrones."t 
 
 At the Revolution, when the presbyterian government was again established, an act of 
 parliament constituted the heritors and kirk session of every parish patrons, j: This act was 
 repealed by the following act; *' Whereas by the ancient laws and customs of that part of 
 Great Britain called Scotland, the presenting of ministers did of right belong to the patrons 
 untiljby the late act of William and Mary concerning patronages^ the presentation was taken 
 from the patrons and given to the heritors and elders of the respective parishes ; and in place 
 of the right of presentation, the heritors and liferenters of every parish were to pay to the 
 respective patrons a small and inconsiderable sum of money, for which the patrons were to 
 renounce tneir presentation in all time thereafter, &c. And whereas that way of calling 
 ministers has proved inconvenient, and has not only occasioned great heats and divisions 
 among those who by the aforesaid act were entitled and authorized to call ministers, but 
 likewise -has been a great hardship upon the patrons, whose predecessors had founded and 
 endowed those churches, and who have not received payment or satisfaction for their right of 
 patronage from the aforesaid heritors or liferenters of the respective parishes, nor have 
 granted renunciations of their said rights on that account. Therefore the aforesaid act 
 concerning patronages is repealed and made void ; and that in all time coming the right of 
 all and every patron to the presentation of ministers to churches and benefices, and the dis- 
 posing of vacant stipends for pious uses within the parishes, be restored, settled, and con- 
 
 * Act 1667, c. 7. t Act 1592, c. 114. t Act 1690, c. 23. 
 
720 CHURCH OF SCOTLAND. 
 
 firmed to them ; and that from and after the 1st of May 1712, it shall and may be lawful 
 for her majesty, her heirs and successors, and for every other person who has a right to any 
 patronage (who have not made and subscribed a formal renunciation thereof under their 
 hands) to present a qualified minister to any church whereof they are patrons which shall 
 happen to be vacant ; and the presbytery of their respective bounds shall and is iiereby 
 obliged to receive and admit in the same manner such qualified person or minister as shall 
 be presented by the respective patrons, as the persons or ministers presented before the 
 making of this act ought to have been admitted."* One of tlie sections of this act provided, 
 *' that in case the patron of any church shall neglect, or refuse to present a qualified min- 
 ister to such church that shall at any time be vacant, for the space of six months after such 
 vacancy shall happen, the right of presentation shall accrue and belong from that time to the 
 presbytery of the bounds where such church is, who are to present a qualified person for 
 that vacajicy, tanquam jure devoluto. " 
 
 This act of the legislature was complained of as a grievance and a direct invasion of the 
 privileges of the establishment. The general assembly made many inetiectual eflbrts to 
 obtain its repeal, during the greater part of the eighteenth century. In their annual in- 
 structions to the commission of assembly, they directed that body which acts in the interval, 
 to seize every favourable opportunity of making due application to the king and parliament 
 for redress. On this subject parliament has ever been inexorable. But an act wag passed 
 by the General Assembly in 1834, bestowing upon the heads of families in a parish the right 
 oi rejecting a presentee, without assigning any reason. This important act does away with 
 much that was objectionable in the act of queen Anne. Lord Moncrief had the honour of 
 introducing it, which he did by stilting that it was a fundamental law of the church, tliat no 
 minister should be intruded upon a parish conlmry to the will of the congregation. His 
 motion was as follows : " That the General Assembly do declare, that it is a fundamental law 
 of this church, that no pastor shall be intruded on any congregation contrary to the will of 
 the people • and that, in order to carry this principle into full effect, the presbyteries of the 
 church shall be instructed, that if in moderating a call to a vacant pastoral cliarge, the major 
 part of the male heads of families, members of the vacant congregation, and in full commu- 
 nion with the church, shall disapprove of the person in whose favour the call is proposed to 
 be moderated in, such disapproval shall be deemed sufficient ground for the presbj tery re- 
 jecting such person, and that he shall be rejected accordingly, and due notice thereof forth- 
 with given to all concerned ; but that, if the major part of the said heads of families sJiall not 
 disapprove of such person to be their pastor, the presbytery shall proceed with the settlement 
 according to the rules of the church ; and further declare, that no person shall be held to be en- 
 titled to disapprove, as aforesaid, who shall refuse, if required, solemnly to declare, in presence 
 of the presbyteries, that he is actuated by no factious or malicious motive, but solely by a 
 conscientious regard to the spiritual interests of himself or congregation. ' This motion 
 was carried by 184 against 138, and has now become the law of the cimrch. 
 
 A series of regulations for giving etiect to this decision was afterwards moved in the As- 
 sembly, and were in substance as follows : " The persons entitled to object to a presentee 
 are the male heads of families in full communion with the church. The presentee having 
 preached at least once before the congregation, the said communicants, on the day appointed 
 for moderating the call, may allege special objections to his morals or doctrine, or his suffi- 
 ciency and fitness for the particular charge ; and these must be substantiated in the usual 
 way to the satisfaction of the church courts. Secondly, the said communicants may express 
 * dissent ' without reason given, either viva voce or in writing: if the dissentients are less 
 than one-half of the qualified communicants, their opposition is no bar to the appointment of 
 the presentee : if they form an apparent majority, the presbytery is to adjourn proceedings 
 to a second meeting, at the distance of ten days, and in the interval, if they see proper, or 
 are requested, may appoint him to preach again to the congregation. At the adjourned 
 meeting, former dissents may be withdrawn, but no new ones can be tendered without rea- 
 sons given, and in this case the presbj tery decides on their competence. If the dissentients 
 
 * 12 Anne, c. 12. 
 
CHURCH OF SCOTLAND. 721 
 
 then persist in their dissents, and are found to be a majority of the congregation, the presen- 
 tation falls to the ground ; but at the demand of the patron, or presentee, or any member of 
 the presbytery, any or all of the dissentients may be cited to appear at a third meeting, ten 
 days from the second, and purge themselves of impure motives, by declarujff. that they 
 are not actuated by private malice, but by a conscientious regard to the spiritual interests of 
 themselves or the congregation. Any person so cited, neglecting to make the declaration, 
 is struck off the list of dissentients. When the patron names a second presentee, the same 
 proceedings are repeated : and if he and the parishioners cannot come to an understanding 
 within the usual period of six months, the jus devolutum of the presbytery comes into ope- 
 ration. Against the presentee named by it no dissent without reason given is avaikible, but 
 the presentation is conducted in the old form. A roll of the qualified communicants is to 
 be kept by the session clerk, and revised annually in November after the sacrament." 
 
 III. The Call, or Voice of the People. — The general assembly of 1834, as we have 
 seen in the foregoing section, passed an act conferring on the heads of families the right of 
 rejecting a presentee without assigning any reason. Up to this period, the power of parish- 
 ioners regarding the settlement of their miiuster was merely nominal, for although the for- 
 mality of " a call " was regularly gone through, it could be considered in no other light than 
 a formality, so long as the power of rejection was withheld from them. The order of making 
 a call has not been altered by the recent enactment, and is as follows : Before undergoing his 
 second trial, a probationer if presented is appointed by the presbytery to preach in the parish 
 church, on a day at least ten days afterwards. On which day, the presbytery assemble at the 
 church of the parish to be filled, whether the presentee be an ordained minister or a proba- 
 tioner. One of their number, by appointment, then preaches a sermon suitable to the occasion. 
 The people are then informed that the probationer or minister has been presented by the 
 patron. They are next asked to subscribe a paper named a call. This call is an invita- 
 tion to the presentee to become their minister, and a promise of subjection in the Lord. 
 This is a custom commensurate with the presbyterian government. It is meant to be an 
 encouragement for the labours of their future minister, by an expression of the approbation 
 of the people. One of the legal steps, therefore, in the settlement of a minister, is a sentence 
 of the presbytery sustaining the call. 
 
 The constitution of the establishment provides another method for making the voice of 
 the people legally known in the admission of their minister. This is by conferring the 
 righ': on the parishioners of appearing as the presentee's accusers. They may at any time 
 during his trials, give a written accusation to the presbytery, charging him with immorality 
 of conduct, or of unsoundness of doctrine. When this accusation is presented , the parishioners 
 bind themselves to prove it, under pain of ecclesiastical censures. This is a bar to the 
 settlement till the accusation be discussed. After the trials of the presentee are finished, 
 a paper called an edict is read from the pulpit, summoning all who have any objections to 
 the life or doctrine of the presentee to appear on the day appointed for his ordination. The 
 day of ordination is appointed at not less than ten days from the day on which the edict was 
 read ; when those preferring charges may state their objections orally, w^ithout the formality 
 of writing. If the charge is frivolous, the presbytery will disregard it ; and as proof must 
 be instantly produced, the edict does not afford any occasion of vexatious delay. This txhibits 
 the jealousy with which the constitution watches over the qualifications of candidates, and 
 furnishes a lesson of circumspection to all who direct their views to the ministry. 
 
 IV. Deed op the Presbytery On the day appointed for the ordination, the presbjtery 
 
 again meets at the church to be filled, to complete the settlement of the presentee, provided 
 no bar has arisen in consequence of the edict. After an appropriate sermon, one of the 
 members of presbytery, who has been appointed for the duty, asks at the probationer the 
 following questions : 
 
 "1. Do you believe the Scriptures of the Old and New Testament to be the word of 
 God, and the only rule of faith and manners? 2. Do you sincerely own and believe tlie 
 whole doctrine contained in the Confession of Faith, approven by the general assemblies of 
 this church, and mtified by law in the year 1690, to be founded upon the word of God ? 
 And do you acknowledge the same as the confession of your faith j and will you firmly and 
 
 4 Y 
 
722 CHURCH OF SCOTLAM D. 
 
 constantly aJhere thereto, and to the utmost of your power assert, maintain, and defend the 
 same, and the purity of worship as presently practised in this national church, and asseried 
 in the 15th act of assembly 1707 ? 3. Do you disown all Popish, Arian, Sociiu'an, ArminiaTr, 
 Bourignian, and other doctrines and opinions whatsoever, contrary to, and inconsistent with, 
 the foresaid confession of faith ? 4. Are you persuaded that the presbyterian goverimient 
 and discipline of this church, are founded on the word of God, and agreeable thereto ? And 
 do you promise to submit to the said government and discipline, and to concur with the 
 same; and never endeavour, directly nor indirectly, the ^prejudice or subversion thereof, 
 but, to the utmost of your power, in your station, to maintain, support, and defend, the sfiid 
 discipliiw and presbyterian government, by kirk-sessions, presbyteries, provincial synods, 
 and general assemblies, during all the days of your life ? 5. Do you promise to submit 
 yourself willingly and humbly, in the spirit of meekness, unto the admonitions of the brethren 
 of this presbytery, and to be subject to them, and all other presbyteries and superior judi- 
 catures of this church, where God in his providence shall cast your lot; and that according 
 to your power you shall maintain the unity and peace of this church against error and schism, 
 notwithstanding of whatsoever trouble or persecution may arise ; and that you shall follow 
 no divisive courses from the present established doctrine, worship, discipline, and goveni- 
 ment of this church? 6. Are not zeal for the honour of God, love to Jesus Christ, and 
 desire of saving souls, your great motives and chief inducements to enter into the functions 
 of the holy ministry, and not worldly designs and interest ? 7. Have jou used any undue 
 methods, either by yourself or others, in procuring this call? 8. Do you engage, in the 
 strength of Jesus Christ our Lord and Master, to rule well your own family, to live a holy 
 and circumspect life, and faithfully, diligently, and cheerfull}', to discharge all the parts of 
 the ministerial work, to the edification of the body of Christ ? 9. Do you accept of and 
 close with the call to be pastor of this parish, and promise through grace, to perform all the 
 duties of a faithful minister of the gospel among this people ?" These questions were decreed 
 to be asked of candidates by the general assembly of 1711, and correspond with the general 
 instructions annexed to the Confession of Faith.* The nature of the questions clearly 
 indicate the answers, which having been made to the satisfaction of the presbytery, they 
 proceed to his ordination. This is done by prayer and imposition of hands. The directory 
 appfunts the parish to observe a solemn fast; that they may the more earnestly join in 
 prayer for a blessing upon the ordinance. After the foregoing questions have been asked, 
 and the answers giVen : the minister who presides is directed " to demand of the people con- 
 cerning their willingness to receive and acknowledge him (the presentee) as the minister of 
 Christ ; and to obey and submit unto him, as having rule over them in the Lord ; and to 
 maintain, encourage, and assist him in all the parts of his office. Which being mutually 
 promised by the people, the presbytery, or the ministers sent from them for ordination, 
 shall solemnly set him apart to the office and work of the ministry, by laying their hands on 
 him, which is to be accompanied with a short prayer or blessing to this effect: 
 
 " Thankfully acknowledging the great mercy of God in sending Jesus Christ for the 
 redemption of his people; and for his ascension to the right hand of God the Father, and 
 hence pouring out his Spirit and giving gifts to men, apostles, evangelists, prophets, pas- 
 tors, and teachers ; for the gathering and building up of his church; and for fitting and 
 inclining this man to this great work : (Here let them impose hands on his head) to entreat 
 him to fit him with his Holy Spirit to give him (who in his name we thus set apart to this 
 holy service) to fulfil the work of his ministry in all things, that he may both save himself 
 and his people committed to his charge."f 
 
 After the imposition of hands, the presiding minister, in the name of the presbytery, re- 
 ceives and admits the newly made minister to be the minister of the vacant parish. By this 
 admission the presbytery, in execution of the office committed to them as a branch of the 
 established church, constitute a connexion between him and the inhabitants of that parish. 
 This deed gives him a legal title to the emoluments provided by law. While he holds this 
 
 * Hill's View of the Constitution, &c. t Directory. 
 
CHURCH OF SCOTLAND. 723 
 
 living he is iiiaipable of taking any other charge witii cure of souls. Death, resignation, 
 deposition, or tiunslation, can alone dissolve this connexion. The former procedure relates 
 to piobationers ; in a case of translation, when the minister has already been ordained, it is 
 not competent to repeat the ordination. He is, however, in the face of his new congregation, 
 to give his consent and adhesion to the declarations, promises, and engagements, made at his 
 ordination. He is then received and admitted minister of the parish.* 
 
 In the Directory, the presiding minister is instructed to exhort the minister, briefly, " to 
 consider of the greatness of his office and work, the danger of negligence both to himself and 
 people, the blessing which will .iccompany his faithfulness, in this life and that to come; 
 and withal, exhort the people to carry themselves to him, as to their minister in the Lord, 
 according to their solemn promise made before. And so, by prayer, commending both him 
 and his flock to the grace of God, after singing of a psalm, let the assembly be dismissed 
 with a blessing, 
 
 " If a minister be designed to a congregation, who hath been formerly ordained presbyter 
 according to the form of ordination which hath been in the church of England, which we 
 hold for substance to be valid, and not to be disclaimed by any who have received it : then 
 there being a cautious proceeding in matters of examination, let him be admitted without 
 any new ordination." The Directory ordains — "that preaching presbyters, orderly asso- 
 ciated, either in cities or neighbouring villages, are those to whom the imposition of hands 
 doth appertain, for those congregations within their bounds respectively. In extraordinary 
 cases something extraordinary may be done, until a settled order may be had, yet keeping as 
 near as may be to the rule. There is at this time (1648) as we humbly conceive, an extra- 
 ordinary occasion for a way of ordination for the present supply of ministers." The Di- 
 rectory also provides, in addition to his other qualifications, that when he applies to the 
 presbytery for a license, he produce testimonials of his having signed the covenant of the 
 three kingdoms 
 
 Government. — The constitution of the Scottish establishment is com- 
 posed of four distinct courts rising progressively. These are, I. the Kirk 
 Session; II. the Presbytery; III. the Synod; IV. the General Assembly. 
 
 I. The Kirk Session. — This is the lowest court or judicatory. Its 
 constituent members are the minister, who is by custom officially the mo- 
 derator, or president, and lay elders. Elders are chosen by the session. 
 After their election, the minister reads their names from the pulpit, from 
 a paper called an edict ; at the same time he appoints a day, at the dis- 
 tance of not less than ten days, for their admission. If no objections are 
 offered on that day by any of the congregation, or if those that are offered 
 are found to be frivolous, the minister proceeds, in the face of the con- 
 gregation to admit the new elders. They are placed in a pew opposite the 
 pulpit ; the minister offers up a prayer, followed by an exhortation to 
 them. He then addresses the congregation, recommending the new office- 
 bearers to their respectful attention. At the time of their admission, the 
 minister calls on them to declare explicitly their assent to all that is con- 
 tained in the Confession of Faith. He asks the same formula of questions 
 at the elder, as are asked at the probationer on his ordination. The mi- 
 nister does not lay on hands on the elder, but he descends from the pulpit 
 and shakes hands with him. All the elders already made do the same, 
 
 * Hill's View of the Constitution ot the Church of Scotland. 
 
724 CHURCH OF SCOTLAND. 
 
 which completes the ceremony. The session is legally convened, when 
 summoned by the minister from the pulpit, or when personally cited. But 
 it cannot exercise any judicial authority, unless the minister of the parish 
 or some other minister, acting either in his name or by appointment of the 
 presbytery, constitutes the meeting by prayer, and presides during its 
 deliberations. His business is to assist the minister in overseeing and cor- 
 recting the manners of the people. They catechise the youth and visit 
 the sick. They distribute the elements to the communicants. They have 
 a vote in all business which may come before the parish session. One of 
 the session is chosen by their brethren to attend with the minister at the 
 presbytery and the synod. And in all matters of government and disci- 
 pline they have an equal vote with the minister. Every parish is divided 
 into districts, in each of which there is an elder to oversee it. The session 
 meets once a-week, but its jurisdiction does not extend beyond its own 
 parish. The minister, who is perpetual moderator, can summon a session 
 when he pleases; in which, however, he has no negative voice. If absent 
 the elders can meet without him about the affairs of the poor. But in 
 matters of scandal, they must apply to the presbytery to send a minister 
 to hold a session, or wait the return of their own minister. The kirk 
 session can judge in matters of lesser scandal, such as fornication; but the 
 greater, such as adultery, must be remitted to the presbytery. They sus- 
 pend from the Lord's supper. They provide all the necessaries for the 
 communion. They collect, keep, and distribute the poor's money. They 
 keep a register of births and marriages, and another of their own pro- 
 ceedings, which they must lay before the presbytery. Appeals lie from 
 them in all cases to their own presbytery. No parish has less than two or 
 three, and in Edinburgh each parish has twelve, elders, except St Cuth- 
 bert's, which from its immense population has upwards of fifty. The elders 
 are grave, sober, and orthodox members, chosen from the heads of families, 
 who solemnly engage to use their utmost endeavours to suppress vice and 
 to cherish piety and virtue. 
 
 II. Presbyteries. — The kingdom of Scotland is divided into seventy- 
 eight presbyteries. The number of parishes composing a presbytery is 
 indefinite. It consists of all the ministers within a certain district, and one 
 ruling elder from each parish, who represents that parish. In some of the 
 populous districts there are thirty ministers in a presbytery. In some 
 remote situations, where the parishes are of great extent, there are not 
 more than four. Professors of divinity, in any university within the bounds 
 of tlie presbytery, if they be ministers, are ex officio members. In popu- 
 lous places presbyteries meet once a-month. Those in remote districts 
 seldom meet above four or five times a-year. Tliey meet generally in the 
 principal town within the presbytery, and it is generally designated by the 
 
CHURCH OF SCOTLAND. 725 
 
 name of that town. They choose a moderator half yearly. He must be 
 a minister, but is merely a primus inter pares. When urgent business 
 requires it, the moderator can summon a meeting of presbytery between 
 the regular times of meeting. This is called a pro re nata meeting. The 
 adjacent presbyteries usually send commissioners to each other, who mav 
 vote in the presbytery to which they are sent. By this means they can ask 
 advice of each other in difficult cases, and report their own determinations 
 in parallel ones. At ordinary meetings there is always a sermon : and the 
 meeting is constituted by prayer. The roll of the members' names is then 
 called, and the absentees marked, who must account for their absence. 
 Presbyteries have no jurisdiction beyond their own bounds. They de- 
 termine appeals from kirk sessions, but cannot try anything in the first 
 instance which is cognizable by the kirk sessions. They compose all dif- 
 ferences between ministers and people, for which purpose they can hold 
 presbyterial visitation of parishes. Tliey inquire into repairs of churches, 
 and see that glebes and manses suffer no dilapidation. They appoint 
 schools in all parishes, and the schoolmasters are subject to their censure 
 and examination. They only can inflict the greater excommunication. 
 They license probationers, ordain ministers, suspend and depose them; 
 in short, determine all ecclesiastical matters within their bounds. An 
 appeal lies in all cases from the presbyteries to the synod. It is begun, 
 adjourned, and dissolved, by prayer.* 
 
 The supreme power of the presbyterian church is, under Christ, radi- 
 cally and originally in the presbyteries. General assemblies possess power 
 only derivatively, and as they represent all the presbyteries. A presbytery 
 is one of the most specific, essential, and indispensable parts of the presby- 
 terian constitution. Provincial synods can only meet twice, and the Ge- 
 neral Assembly now only once a-year. The commission of the General 
 Assembly is liable to interruption. The sudden dissolution of an assembly 
 may prevent its very existence. This dissolution happened in 1692, by 
 royal authority, and of course no commission was appointed that year. 
 But a presbytery is a constant current court. They meet when they choose. 
 They sit as long as they like. They adjourn to any place, at any time, 
 how long, how short time soever they themselves choose. They have all 
 the substantial power of government and discipline. They have really a 
 legislative power. They can make acts to bind themselves and all within 
 their bounds. They have a large share of the executive also. They can 
 examine, ordain, admit, suspend, and depose ministers. They can cite, 
 judge, absolve, condemn, excommunicate, their people. And if the Ge- 
 neral Assembly should enact any law, of which a majority of the presby- 
 
 * Chambcila} lie's Present State of Great Britain. 
 
726 CHURCH OF SCOTLAND. 
 
 teries disapprove, it would not be obligatory. In support of this we cite 
 the act commonly called the " Barrier Act."* 
 
 " The General Assembly, taking into their consideration the overture 
 and act made in the last assembly concerning innovations, and having 
 heard the report of the several commissioners from presbyteries, to whom 
 the consideration of the same was recommended, in order to its being more 
 ripely advised and determined in this assembly, and considering the frequent 
 practice of former assemblies of this churchy and that it will mightily con- 
 duce to the exact obedience of the acts of assemblies, that general assem- 
 blies be very deliberate in making of the same, and that the whole church 
 have a previous knowledge thereof, and their opinion be had therein, and 
 for preventing any sudden alteration, or innovation, or other prejudice of 
 the church, in either doctrine, or worship, or discipline, or government 
 thereof, now happily established : do therefore appoint, enact, and declare, 
 that before any general assembly to this church shall pass any acts wliich 
 are to be binding rules and constitutions to the church, the same acts be 
 first proposed as overtures to the Assembly, and being by them passed as 
 such, be remitted to the consideration of the several presbyteries of this 
 church, and their opinions and consent reported by their commissioners to 
 the next general assembly following, who may then pass the same in acts, 
 if the more general opinion of the church, tlius had, agree thereto." 
 
 III. The Synod. — The synods are composed of several adjacent pres- 
 byteries. From three to eight presbyteries, according to local arrange- 
 ment, may compose a provincial synod. Of these superior courts there 
 are in all fifteen. The synod meets twice a-year, at the principal town 
 within its bounds. The meeting is opened by a sermon, preached by the 
 preceding moderator, whose name and text are registered. The members 
 of the synod are the same that compose the presbyteries. Every minister 
 of all the presbyteries within the bounds of the synod, is a member of that 
 court, and the same lay elder who last represented the kirk session in the 
 presbytery is its representative in the synod. By this arrangement the 
 number of ministers and elders may be equal. They choose a moderator, 
 who must be a minister, at every half-yearly meeting of the court, who is 
 their president, but has no negative. The synod sends to and receives 
 correspondents from neighbouring synods, in the same manner as the 
 presbyteries do. The correspondents are one minister and one elder, who 
 are entitled to sit, deliberate, and vote with the original members. Appeals 
 lie to the synod from the presbyteries in all cases whatsoever. If the 
 plurality of the presbyteries desire it, the moderator must call a pro re 
 nata or intermediate meeting of synod. Presbyteries are subject to the 
 
 * 9 Act oi" Assem. 10U7. 
 
CHURCH OF SCOTLAND. 727 
 
 privy censures of the synods, as ministers are to those of the presbyteries. 
 At every ordinary session a diet is appointed, in which (when necessary j 
 these privy censures are administered. A synod has its own clerk and 
 officers. All the acts of the synods are subject to the review of the ge- 
 neral assembly; for which reason they keep exact registers of all their 
 proceedings. The synod is itself a court of review over the two inferior 
 judicatories.* 
 
 The General Assembly — This is the court of last resort, to which 
 appeals lie from all the provincial synods. An appeal may rise progres- 
 sively from a kirk session, through the presbytery and the synod, to the 
 assembly general. The sentence of this court is, however, final. When a 
 party conceives that the judgment of an inferior court is unjust or erro- 
 neous, he is entitled to seek redress by appealing to the court immediately 
 above it. The appeal, if regularly conducted, stops the final execution of 
 judgment. It brings the whole proceedings of that court under review, 
 and sists the members at the bar of the superior court. The courts ap- 
 pealed from are not entitled to deliberate and vote in the review of their 
 own judgment. They are called to state, in such a manner as they think 
 proper, the reasons on which their judgment proceeded. The sentence 
 appealed from is commonly defended before the superior court, both by the 
 appellant and also by the members who pronounced it. If the inferior 
 court has acted according to the best of its members' judgment, and with 
 a good intention, they incur no blame, even if their sentence should be 
 reversed. They are answerable to the superior court for every part of 
 their conduct in the business reviewed, and if deserving, they are censured. 
 
 There were 936 beneficed ministers before the recent act of Assembly 
 admitted the ministers of chapels of ease to seats in the courts. All these 
 now possess ecclesiastical authority, and personally attend the presbyteries 
 and synods. But they sit in the supreme court of assembly, by represen- 
 tation. The representation of the presbyteries is in proportion to the 
 number of parishes within each presbytery. This was settled soon after 
 the revolution, by act of assembly : 
 
 " That all presbyteries consisting of twelve parishes, or under tliat 
 number, shall send in two ministers and one ruling elder ; that all presby- 
 teries consisting of eighteen parishes, or under that number, but above 
 twelve, shall send in three ministers and one ruling elder : that all presby- 
 teries consisting of twenty-four parishes, or under that number, shall send 
 in four ministers and two ruling elders ; and that presbyteries consisting 
 of above twenty-four parishes, shall send five ministers and two ruling 
 elders : that collegiate kirks, where there use to be two or more ministers, 
 
 * Chamberlayne's Present State of Great Britain. Dr Hill's Constitution. 
 
738 
 
 CHURCH OF SCOTLAND. 
 
 are, so far as concerns the design of this act, understood to be as many 
 distinct parishes ; and that no persons are to be admitted members of as- 
 semblies, but such as are either ministers or ruling elders." 
 
 The number of ministers in the city of Edinburgh increased after 
 the passing of the above act. A special act was therefore made to meet 
 the case.* " That each presbytery whose number doth exceed thirty 
 ministerial charges, shall send to the General Assembly six ministers and 
 three ruling elders." The sixty-six royal burghs of Scotland are repre- 
 sented by sixty-seven ruling elders. Edinburgh sends two, and each of the 
 other burghs one ruling elder. There are five universities, each of which 
 is represented by one of its own members, who may be either a minister 
 or an elder. At present, therefore, the establishment is represented as 
 follows : 
 
 200 ministers representing presbyteries. 
 89 lay elders do. do. 
 
 67 lay elders representing royal burghs. 
 5 ministers or elders representing universities. 
 361 members of Assembly. 
 " The General Assembly," says Dr Hill, '* so reputable from the number 
 and the description of the persons who compose it, is honoured with a 
 representation of the sovereign by the lord higli commissioner, whose pre- 
 sence is the gracious pledge of protection and countenance to the estab- 
 lished church, and the symbol of that sanction which the civil authority of 
 the state is ready to give to its legal acts. The church of Scotland claims 
 the right of meeting in a general assembly as well as in inferior courts, by 
 its own appointment ; but it also recognises the right of the supreme ma- 
 gistrate to call synods and to be present at them ; and the two rights are 
 easily reconciled, when there subsists between the church and tlie state that 
 good understanding which the true friends of both will always study to 
 cultivate." The establishment repudiates the idea of the king's supremacy 
 in theory^ but submits to it in fact. The king neither claims nor exer- 
 cises any other supremacy over the church of England, than he quietly 
 exercises over that of Scotland. He sends no royal commissioner to the 
 convocation, but the General Assembly can neither meet nor deliberate 
 without the presence of that functionary. When presbyterian government 
 was for a short time established in 1592, the act of parliament of that year 
 declares, " that it shall be lawful for the kirk and ministers, every year at 
 the least, and oftener^ro re nata, as occasion and necessity shall require, 
 to hold and keep general assemblies." The act of parliament which re- 
 stored presbytery after the revolution,! " appoints the first meeting of the 
 
 * 6 of Assembly, 1712. f June 7, 1690. 
 
CHURCH OF SCOTLAND. 729 
 
 General Assembly of this church, as above established, to be at Edinburgh 
 the third Tuesday of October next to come, in this instant year 1690.'' 
 By authority of these acts of parliament, the Assembly meets now once 
 a-year, in May. In the earlier periods of our history subsequent to the 
 Reformation, the Assembly met twice a-year, in May and October. It 
 never met, however, without the royal authority. To preserve this su- 
 premacy and authority, a commissioner was always appointed to represent 
 the sovereign. 
 
 The Assembly always meets on a Thursday, on which day a moderator 
 is chosen, who is now always a minister, but laymen have been moderators. 
 The celebrated George Buchanan was once moderator of Assembly. It 
 has a respectable establishment of clerks and officers, and its sittings con- 
 tinue ten days. The times for the election of members, and the forms of 
 the instruments of their election, which are called their commissions, are 
 precisely regulated by acts of Assembly. A strict conformity is indispen- 
 sable. On the evening preceding the meeting of Assembly, the commis- 
 sions are lodged with the clerks, who prepare from them a roll of the x\s- 
 sembly. An informality in the commission will prevent the member from 
 taking his seat. On the first day of the meeting, the lord commissioner 
 holds a levee at Holyrood house, after which he goes in state to the ancient 
 cathedral church of St Giles. The moderator of the last Assembly preaches 
 a sermon before his grace. After which, his grace proceeds in state to 
 the assembly house, and takes his seat on a throne. It is to be remarked 
 that the commissioner, as his sovereign's representative, has, during his 
 office, ducal rank, is styled grace^ and takes precedence for the time being 
 of all other noblemen. The moderator of the last Assembly opens the 
 present one with a prayer. The clerks read the roll of the names of mem- 
 bers. Last of all, a new moderator is chosen, who immediately takes his 
 seat a little lower than the throne, as president. His grace exhibits his 
 majesty's commission, and a letter from the king to the Assembly. The 
 principal clerk reads both the commission and letter, and a vote of the 
 house orders them to be recorded. The commissioner then makes a speech 
 from the throne, to which the moderator replies. The court is now con- 
 stituted. A committee is next appointed, to prepare an answer to the 
 king's letter, and an address, if the " signs of the times " require it. An- 
 other committee is appointed to examine commissions. The whole house 
 is divided into two great committees^one the committee on bills, and the 
 other on overtures. As we mentioned before, the convocation, like the 
 English parliament, sits in two houses. The Assembly general, which 
 was common both to popish and episcopalian times, follow the plan of the 
 parliament, and sit in one house. In the Scottish parliament there were 
 the lords of the articles, to prepare bills for debate ; corresponding to thi» 
 
 4 z 
 
'^^0 CHURCH OF SCOTLAND. 
 
 institution, the Assembly has its committees of bills and overtures. On 
 Friday, the session is entirely occupied in calling over the names on the 
 committees, and, by two members selected by the moderator, reciting 
 extempore prayers. These two committees hold their first meeting on the 
 evening of Friday, the second on the evening of Saturday, and the third 
 on the evening of Monday. All the business of the Assembly must come 
 through them. All bills from the inferior courts are submitted to the 
 committee on bills. All overtures or propositions, from synods, presby- 
 teries, or' individual ministers, for any new law, repeal of an old, or for 
 the regulation or exercise of ecclesiastical authority, are presented to the 
 committee on overtures. Either committee may refuse to transmit what 
 is laid before them to tlie Assembly. But they cannot absolutely exclude 
 a bill or overture : it Can be introduced under the form of a protest. On 
 Friday, ministers are selected to preach before his grace on the two fol- 
 lowing Sundays. On Saturday, the letter to the king, and the address, 
 if any, is brought up, passes through the committee of overtures, and 
 forms the commencement of their report. The second part of their report 
 is the objections, if any, to the commissions, presented by that committee. 
 This occupies the Assembly's attention, and must be discussed before they 
 can enter on any other business. After the objections to commissions have 
 been discussed, the Assembly receives other parts of the report of the 
 committee on overtures, and also that on bills. They then proceed to 
 make such arrangements as the nature and extent of these two reports 
 render expedient. This is done on Saturday, if there is timej if not, on 
 Monday. 
 
 On Monday, after all these preliminaries, the business of the Assembly 
 commences. In discussing which, the forms necessary in all great meet- 
 ings are adopted, and which, supported by the authority of the moderator, 
 and the general good feeling of the house, is generally sufficient to pre- 
 serve decorum and order. The sense of the house on a division is collected 
 by one of the clerks calling the names on the roll. The votes are then 
 marked by the clerk as they are given, under the inspection of the mode- 
 rator. 
 When the Assembly judge private causes,counsel are heard at the bar; but 
 when discussing overtures, which are matters purely of internal regulation, 
 counsel are not allowed to speak. Questions discussed in an ecclesiastical 
 court are generally more of a local than of a general interest. Still it does 
 sometimes happen, that discussions in the Assembly are of such a general 
 nature as to excite considerable public interest among all classes of the 
 community. The Assembly generally sits about ten days. When its busi- 
 ness is finished, the moderator usually addresses himself to his grace tlie 
 commissioner, in a speech, embracing the affairs that have been discussed, 
 
CHURCH OF SCOTLAND. 731 
 
 and the topics of prominent interest of the day, and the subjects of religious 
 joy or despondency of the times. He then nominally dissolves the As- 
 sembly, in the name of the Lord Jesus, the King and Head of his church. 
 At this name the members all make an obeisance. He then names a cer- 
 tain day, in the month of May in the following year, for the next assembly 
 to meet. After all these formalities are concluded, his grace the lord 
 commissioner rises, and in his majesty's name really dissolves the As- 
 sembly, and appoints the same day named by the moderator for the next 
 assembly to convocate. The Assembly makes no obeisance when they are 
 dissolved in the king's name. The moderator then prays, and the Assembly 
 sing a psalm; after which the moderator pronounces a blessing, and they 
 depart. 
 
 I will now notice the distribution and exercise of the judicial, legislative, 
 and executive powers. In all spiritual societies there is a judicial power 
 exercised in the infliction and removal of censures. On this point the Con- 
 fession of Faith is very decided. " To these officers (the ministers) the 
 keys of the kingdom of heaven are committed, by virtue whereof they have 
 power respectively to retain and remit sins, to shut that kingdom against 
 the impenitent, both by the word and censures ; and to open it unto peni- 
 tent sinners, by the ministry of the gospel and by absolution from censures, 
 as occasion shall require."* By the presbyterian constitution, however, 
 this power is not intrusted to the minister of a parish in his individual 
 capacity. It is only when he sits as moderator of his parish session, and 
 in concurrence with his lay elders, that he can rebuke, suspend, or ex- 
 communicate. The minister's immediate superior is the presbytery. That 
 court can, at any time, inquire in what manner he performs his official 
 duties. It exercises a censorial inspection over his whole conduct, and 
 complaints against him must be brought before it. Should he be deposed, 
 its sentence deprives him of all right to the stipend, and renders his parish 
 vacant. This is the effect of the connexion between church and state. 
 
 Each of the courts have the right of making laws obligatory within 
 their own jurisdiction. But the General Assembly alone possesses the 
 power of legislating for the whole establishment. This privilege is, how- 
 ever, not altogether supreme, as by the Barrier Act, already cited, the 
 presbyteries possess a controlling power. The Barrier Act has the effect 
 of preventing hasty legislation, an evil always to be deprecated. Espe- 
 cially as, in the space of ten days, it is hardly possible to give that mature 
 consideration to any subject which its importance may require. *' At the 
 same time," says Dr Hill, "it must be acknowledged, that the operation 
 of the Barrier Act tends to produce great tardiness in the legislation of 
 
 • Conf. of Faith, cxxx. sec. 2. 
 
732 CHURCH OF SCOTLAND. 
 
 the church. For some presbyteries neglect to send any opinion ; others 
 disapprove ; others propose alterations ; so that many years sometimes 
 elapse before the consent of forty presbyteries can be obtained to the whole 
 complex proposition that was transmitted to them."* As a remedy for 
 this, the Assembly generally passes an " interim act," which temporary 
 law is, however, binding on the whole till the meeting of the next assembly. 
 This interim law rouses presbyteries to consider the overtures more ex- 
 peditiously. Sometimes these interims, by tacit acquiescence, acquire tjic 
 authority of standing laws. 
 
 All the inferior courts exercise an executive power in tlie ordinary 
 discharge of their duty. In the trial of candidates for the ministry, pres- 
 byteries are the especial executive officers of the establishment. But the 
 supreme executive power lies in the General Assembly, which, in concur- 
 rence with the state,-]- gave the inferior courts also an executive power. 
 In virtue of this power, the Assembly issues peremptory mandates ; sum- 
 mons both individuals and inferior courts to its bar ; sends precise orders 
 to inferior courts, directing, assisting, or restraining them in the discharge 
 of their functions. The decisions of the Assembly are the common law of 
 the establishment. *' The existence of this authority is essential to the 
 unity and vigour of our political system. Without it the Church of Scot- 
 land would soon lose its glory, and separate into a number of petty inde- 
 pendent jurisdictions, scattered over the districts of the country, unequal 
 to their own defence, and insufficient for the purposes of an ecclesiastical 
 establishment." The settlement of vacant parishes has chiefly called for 
 the executive powers of the Assembly. Its vigour in this particular occa- 
 sioned a secession from its communion in the beginning of the last century. 
 When a presbytery, from any cause, delays or refuses to settle a minister, 
 complaint is made to the Assembly. If it is satisfied that the presbytery 
 has not acted right, it peremptorily enjoins them to proceed, with all speed, 
 to admit the presentee. Should the presbytery still demur, the Assembly 
 appoints certain days for meeting, prescribes the whole course of proce- 
 dure, and constitutes the presbytery the Assembly's ministerial officers for 
 that particular case. The presbytery is not allowed to exercise its own 
 judgment, but are required implicitly to obey the instructions of the As- 
 sembly. 
 
 It is impossible, however, for a court which only meets once a-year, 
 and then only for ten days, to exercise its executive power all the year 
 round. Therefore, before dissolution, it appoints a commission. This 
 commission consists of thirty-one members, whereof twenty-one must be 
 ministers, the remainder lay elders. They choose their own moderator. They 
 
 Hill's View of the Constitution. f Act of Parliament 1592, c. 114. 
 
 I 
 
CHURCH OF SCOTLAND. 733 
 
 have the power of an assembly in all matters referred to them from it. 
 Strictly speaking, they can only act by recommendation of the Assembly. 
 But that recommendation usually includes a clause, empowering them to 
 act in anything that may be for the general good of the church. Among 
 other things the annual instructions are, " to advert to the interest of the 
 church on every occasion, that the church, and present establishment 
 thereof, do not suffer or sustain any prejudice which they can prevent, 
 as they shall be answerable." The commission is responsible -to the next 
 General Assembly, they therefore keep a register of their proceedings. 
 
 We sum up this delineation of the constitution in the words of professor 
 Hill, to whom we have been chiefly indebted for this sketch. " The judi- 
 cial power ascends through all the courts, terminating in the General 
 Assembly: the legislative both originates and ends there, with this restric- 
 tion upon the exercise of it, that without the concurrence of a majority of 
 presbyteries, the General Assembly cannot enact any law : the supreme 
 executive is lodged in the General Assembly, whose orders direct and 
 control the inferior branches, until the whole body declare that they are 
 illegal. In this distribution of power, there is a sufficient energy and 
 vigour for the despatch of business : there is a tardiness only with regard 
 to that which, of all things, requires the most deliberation, the enactment 
 of permanent laws ; and there is a provision made for the constitutional 
 operation of that jealousy, natural and proper in all republics, by which 
 the rights and liberties of the inferior branches are defended against 
 encroachment, and the General Assembly, however respectable by the de- 
 scription of its members, and the various offices assigned to it, is effec- 
 tually restrained from making innovations."* 
 
 The established ministers of Scotland are individually styled reverend; 
 a presbytery, the reverend presbytery; a synod, the very reverend synod; 
 and the supreme court is styled the venerable Assembly. In the Assem- 
 bly, his majesty is represented by a nobleman, who is styled grace. He is 
 received and attended with royal honours. He takes precedence of all 
 other noblemen for the time being. The keys of the city are always given 
 into his custody, by the lord provost.of Edinburgh, on his knee ; to whom 
 his grace returns them, accompanied with a speech. He holds a levee, 
 Avhich is attended by all the nobility and gentry in Edinburgh, by all the 
 magistrates, naval and military officers, and the members of Assembly. 
 He is attended by a military escort, and the streets are lined with military 
 when he proceeds in state to church and to open the Assembly. For this 
 pageantry, his grace the commissioner is paid £2000 by the exchequer 
 in Scotland : and I have Mr Joseph Hume, M. P. for Middlesex's letter, 
 
 * Hill's View ef the Constitution. 
 
734 THE SECESSION. 
 
 dated 26th February, 1830, stating that he is paid £1000 further on his 
 return to London. It requires a further sum, of about £1000, to pay the 
 purse-bearer, clerks, pages, and other expenses incident to the respecta- 
 bility and efficiency of this ancient court. Besides these expenses, his 
 majesty is pleased to place £1000, from the privy purse, at the disposal 
 of the x\ssembly, for promoting education in the highlands and islands. 
 
 THE SECESSION. 
 
 At the Revolution, the presbyterian religion was established in Scot- 
 land, on the basis of the "inclinations of the people." Patronage was 
 abolished in 1649, and again revived in 1662. In 1688 it was again 
 abolished, and continued in abeyance till the year 1712, when the act of 
 queen Anne, already given, was passed, which restored patronage. When 
 this bill was before parliament, the commission of Assembly declared pa- 
 tronage to be " contrary to the presbyterian constitution solemnly ratified 
 by acts of parliament of both kingdoms, and calculated inevitably to ob- 
 struct the work of tlie gospel, and create great disorder and disquiet in 
 this church and land." " In fact, the large share of patronage possessed 
 by the crown in Scotland, serves for the same purpose as the supremacy 
 which it enjoys in England does."* Patronage and toleration were loudly 
 complained of as being " the floodgates of error and corruption." Strong 
 remonstrances were accordingly made both to parliament and the General 
 Assembly. By a tacit compromise, the people and the patron united 
 their claims for a number of years, but it gradually became common to 
 accept of a presentation. The General Assembly also showed an inclination 
 to support the patron. In consequence, violent settlements were made 
 sometimes by the presbyteries, and at others, by committees appointed by 
 the commission of Assembly. 
 
 Ever since the Revolution, it has been the fruitful parent of schism and 
 division in Scotland. Mr Glass, minister of Tealing, contended, in 1727, 
 not only against patronage, but also against all civil establishments. The 
 presbytery of Dundee cited him to answer for his heterodoxy, in April, 
 1728. In his defence, he maintained, *' that a churcli might be perse- 
 cuted or tolerated according to the will of princes, and that all those bear- 
 ing the name of christian ministers, who accepted of civil emoluments from 
 the state, .were unacquainted with the gospel, and enemies to Christ's 
 kingdom." Were such doctrines to be established, the presbytery feared 
 the crown might sequestrate their livings. The presbytery deposed Mr 
 
 * Tost. Associate Synod of Original Seceders. 
 
THE SECESSION. 735 
 
 Glass from the ministry. From this sentence, Mr Glass appealed to the 
 synod. He defended his opinions in that court with great ability. The 
 synod confirmed the sentence of the presbytery, " deposed him from the 
 ministry, prohibited and discharged him from exercising the same, or any 
 part thereof, in all time coming, under pain of the highest censures of the 
 church." Mr Glass disregarded the primary deposition by the presbytery. 
 He continued to exercise his functions as formerly; and, as might be ex- 
 pected from the nature of presbyterian government, from this last sentence 
 he appealed to the General Assembly. In the interim, he was compelled 
 to vacate his parish. Yet he continued to exercise his ministerial office, 
 to those who adhered to him. His popularity was great. The reputation 
 of persecution engaged tlie sympathies of the people in his favour. In the 
 course of a few years, his followers increasing, he erected a chapel in 
 Dundee. On the 12th March, 1730, the commission of the General As- 
 sembly confirmed the synod's sentence of deposition. In the Assembly of 
 1731, an attempt was made to restore Mr Glass. They annexed a con- 
 dition, however, which no doubt influenced Mr Glass in rejecting the offer. 
 The Assembly " did take off the sentence of deposition, passed by the 
 commission, 12th March, 17 30, against Mr John Glass, then minister at 
 Tealing, for independent principles, and did restore him to the character 
 and exercise of a minister of the gospel of Christ; but declared, notwith- 
 standing, that he is not to be esteemed a minister of the established church 
 of Scotland, or capable to be called or settled tlaerein, until he shall re- 
 nounce the principles embraced and avowed by him, that are inconsistent 
 with the constitution of this church." This condition merely served as a 
 salvo for the Assembly's intolerance. Mr Glass paid no attention to it, 
 but continued his separation. He made frequent tours through the king- 
 dom, preaching in all the principal towns. He erected meeting-houses 
 wherever he found a competent number of persons who adopted his pecu- 
 liar tenets. Dundee continued to be the principal scene of his labours. 
 He was joined by several ministers ; and as their acknowledged chief, he 
 drew up a system for their regulation. 
 
 In 1731, an overture was transmitted to the presbyteries, in terms of 
 the Barrier Act, "concerning the method of planting vacant churches :" a 
 kind of supplement to the law of patronage. This act lodged the sole 
 power of election in a meeting of protestant elders and heritors. This act 
 made no exception of the episcopalian heritors, so that when they were 
 most numerous in a parish, they had it in their power to present. This 
 was naturally considered a grievance. To enforce these settlements, the 
 Assembly had recourse to very despotic measures. That court denied 
 dissenters the right of exercising the ordinary methods of expressing their 
 dissent. In consequence, the only method left for complaint was from the 
 
736 THE SECESSION. 
 
 pulpit. When the Assembly met in May, 1732, it was found that eighteen 
 presbyteries had made no return : twelve were in favour of the act, with 
 some amendments ; six were absolutely favourable ; and thirty-one were 
 decidedly opposed to it. At the same time, two remonstrances were pre- 
 sented against the overture. These the Assembly refused to receive, and, 
 notwithstanding that the returns from the presbyteries were unfavourable, 
 Enacted the above as a standing law. 
 
 In this state of general dissatisfaction and excitement, the synod of Perth 
 and Stirling met at Stirling, in October, 1732, and Mr Ebenezer Erskine, 
 minister of that town, was appointed to preach. In his sermon, he in- 
 veighed against the defections of the times ; and, in particular, animad- 
 verted severely on the late act of Assembly, and on the violent settlements 
 of ministers. For these freedoms, the synod adjudged him to be rebuked, 
 from which sentence Mr Erskine protested and appealed to the General 
 Assembly. Twelve of the ministers of this synod adhered to Mr Erskine's 
 protest. The Assembly which met in 1733 approved of the sentence of the 
 synod, and ordered the rebuke and admonition to be pronounced. Against 
 this Mr Erskine again protested, asserting his liberty to preach the same 
 truths, and to testify against the same or the like defections, upon all 
 proper occasions. Three of his brethren, Messrs Moncrief, minister of 
 Abernethy, Wilson of Perth, and Fisher of Kinclaven, united with him 
 in his refusal of submitting to be rebuked, as an undue restraint on minis- 
 terial freedom. These presented a protest to the Assembly, but which 
 that court refused to receive. The brethren then laid it on the table, and 
 retired, where it lay unobserved for some time. A minister accidentally 
 took up the paper, read it, and called the attention of the court to its 
 contents. It was declared to be an insult to the court, and the offenders 
 were cited to appear at the bar the following day. On their attendance 
 at the bar, a committee was appointed to communicate with them. The 
 committee reported : that the four brethren continued fully resolved to 
 adliere to their paper and protest. When placed at the bar, the As- 
 sembly passed the following sentence, without permitting the brethren to 
 speak : 
 
 " The General Assembly ordains, that the four brethren, aforesaid, ap- 
 pear before the commission in August next, and there show their sorrow 
 for their conduct and misbehaviour in offering to protest, and in giving 
 in to this Assembly the paper by them subscribed j and that they then 
 retract the same. And in case they do not appear before the said com- 
 mission in August, and there show their sorrow, and retract, as said is : 
 the commission is hereby empowered and appointed to suspend the said 
 brethren, or such of them as shall not obey, from the exercise of their 
 ministry. And further, in case the said brethren shall be suspended by 
 
THE SECESSION. 737 
 
 the said commission, and that they shall act contrary to the said sentence 
 of suspension, the commission is hereby empowered and appointed^ at their 
 meeting in November, or any subsequent meeting, to proceed to a higher 
 censure against the said four brethren, or such of them as shall continue 
 to offend by transgressing this act. And the General Assembly do appoint 
 the several presbyteries of which the said brethren are members, to report 
 to the commission in August, and subsequent meetings of it, their conduct 
 and behaviour with respect to this act." 
 
 Against this sentence, the four brethren requested leave to read the fol- 
 lowing complaint and declaration, but which the Assembly peremptorily 
 refusing, they laid it on the table, and left the bar. 
 
 " In regard the venerable Assembly have come to a positive sentence, 
 without hearing our defences ; and have appointed the commission to 
 execute their sentence in August, in case we do not retract what we have 
 done : we cannot but complain of this uncommon procedure; and- declare 
 that we are not at liberty to take this affair to an avisandumr* 
 
 No change having taken place in the resolution of the four brethren, 
 the commission suspended them in August. Representations from several 
 presbyteries, kirk sessions, and town councils, were offered to the cam- 
 mission, praying them to delay sentence. The commission would not suffer 
 any of these representations to be read. The moderator read the sentence, 
 not in the name and by the authority of Jesus Christ, but in that of the 
 Assembly: that the commission did suspend the four ^protesting brethren 
 from the exercise of the ministerial function, and all the parts thereof. 
 Against this sentence, the brethren protested by a written document, as 
 foUov^s : — *' We hereby adhere to the protestations taken by us before this 
 court, for ourselves j and in name of all the ministers, elders, and mem- 
 bers of the Church of Scotland, and of all and every one of our respective 
 congregations, adhering to us : Bearing that this sentence is in itself null 
 and void ; and that it shall be lawful and warrantable for us to exercise 
 our ministry as hitherto we have done, and as if no such censure had been 
 inflicted : and that if, in consequence of this sentence, any minister or 
 probationer shall exercise any part of our pastoral 7vork, the same shall 
 be held and reputed as a violent intrusion upon our ministerial labours." 
 
 When the commission met again, in November, 1773, the four brethren 
 appeared at the bar, and protested that they still adhered to their former 
 declarations. A committee appointed to interrogate them reported, that 
 the brethren " had exercised all the parts of their ministerial office, as if 
 they had been under no such censure," and that " they had declared their 
 resolution to continue of the same mind as formerly." At this period 
 
 * Under consideration. 
 5 A 
 
738 THE SECESSION. 
 
 the four brethren were joined by Mr Ralph Erskine. The commission 
 determined to proceed to the higher censure. This was only carried by 
 the casting vote of Mr Gowdie, the moderator. Many synods, presby- 
 teries, kirk sessions, and magistrates, petitioned for delay, at least till the 
 following March, as authorized by the Assembly, but without effect. The 
 commission pronounced the following sentence : that they " did and hereby 
 do loose the relation of Mr Ebenezer Erskine, minister at Stirling, Mr 
 William Wilson, of Perth, Mr Alexander Moncrief, of Abernethy, and 
 Mr James Fisher, at Kinclaven, to their respective charges ; and do de- 
 clare them no longer ministers of this church : and do hereby prohibit all 
 ministers of this church to employ them, or any of them, in any ministerial 
 function. x\nd the commission do declare their churches vacant from 
 and after this sentence." 
 
 "As the judicatories," says Willison, " at this time seemed to act with 
 much heat and severity, in order to support and screw up their authority; 
 so we must own, that the four brethren seemed to show no little humour 
 and stiffness in opposing their authority and despising their sentences : for 
 they would give no ear to their friends, who dealt with them to show some 
 subjection to the judicatories, as to their fathers and superiors ; and al- 
 though they were just now abusing their church power, and unwarrantably 
 provoking their children, yet some regard is to be shown to their autliority, 
 even when so doing, as we do to our natural parents, though correcting us 
 in an arbitrary way. As to Mr Erskine, though he was contending for 
 the truth, many of his friends wished that he had not used such asperity 
 and tartness of expression about the ministers and judicatories of the church 
 as he did; and many of the leading men in the judicatories said, this was the 
 only thing they quarrelled in his sermon ; but Mr Erskine would make no 
 acknowledgment or submission of any sort, though even Mr Wilson and 
 Mr Moncrief said, in their reasons of dissent, that they did not pretend 
 to justify Ms modes of expression in that sermon. We do not see that 
 it would have been any loss to the truth the four brethren appeared for, 
 that they had all showed more respect to the supreme authority of the 
 church in their conduct than they did ; particularly, though they had 
 forboin to protest, as they did in express words, against the sentence of 
 the Assembly as unjust, and against any censure they should inflict on 
 them diS null and void in itself: and if, upon their being suspended, any 
 minister or probationer should preach in their parishes, the same should be 
 held as an intrusion upon their charges. And as they protested, so they 
 submitted not to the sentence for one day."* 
 
 On the sentence being pronounced, the associated brethren, who were 
 
 * "Willison's Testimony, pp. 78, 79. 
 
 \ 
 
THE SECESSION. 739 
 
 now by new adhesions increased to seven, protested that, notwithstanding 
 this sentence, their pastoral relation should be held and reputed firm and 
 valid: and "that, notwithstanding our being cast out from ministerial 
 communion with the established church of Scotland, we still hold commu- 
 nion with all and every one who desire, with us, to adhere to the princi- 
 ples of the true presbyterian covenanted Church of Scotland, in her doc- 
 trine, worship, government, and discipline : and particularly with every 
 one who are groaning under the evils, and who are affected with the 
 grievances we have been complaining of; who are, in their several spheres, 
 wrestling against the same. But in regard that the prevailing party in this 
 established church, who have now cast us out from ministerial communion 
 with them, are now carrying on a course of defection from our reformed 
 and covenanted principles ; and, particularly, are suppressing ministerial 
 freedom and faithfulness, in testifying against the present backslidings of 
 the church, and inflicting censures on ministers for witnessing, by protes- 
 tations and otherwise, against the same : Therefore we do, for these and 
 many other weighty reasons, to be laid open in due time, protest that we 
 are obliged to mahe a SECESSION from them ; and that we can have 
 no ministerial communion with them, till they see their sins and mistakes, 
 and amend them. And in like manner we do protest, that it shall be lawful 
 and warrantable for us to exercise the keys of doctrine, discipline, and 
 government, according to the Word of God, and Confession of Faith, and 
 the principles and constitutions of the covenanted Church of Scotland; as 
 if no such censure had been passed upon us : upon all which we take 
 instruments.* And we hereby appeal unto the first free, faithful, and 
 reforming General Assembly of the Church of Scotland." Signed by the 
 four brethren. 
 
 The conduct of the commission of Assembly seems to have been suffi- 
 ciently arbitrary. The whole establishment appeared at this time to sym- 
 pathise with the four bretliren. The presbyteries generally sent up re- 
 presentatives to the Assembly of 1734, sufficiently willing to censure the 
 party and despotic proceedings of their commission, and to restore the four 
 brethren to their charges ; but this was rendered impossible. On the 6th 
 of December, 1733, the seven associated brethren met at a place called 
 Gairney-bridge, near Kinross, and constituted themselves into a separate 
 presbytery. They spent the preceding day in fasting and prayer. They 
 assumed the name of the Associate Presbytery. Among other 
 reasons, they assigned the following for this important step:^ — " That they 
 might be in a condition and capacity to exercise all the parts of their pas - 
 
 ♦ Instrument is a technical term, signifying the payment of a fee ("say one shiHing) tc 
 the clerk of Aj;sembly, for receiving a process and recording it, or any paper, protest, or dis- 
 sent, with which it is accompanied. 
 
740 THE SECESSION. 
 
 toral office ; that tliey might have a more special claim to the promise of 
 the divine presence among them ; that they might maintain proper order 
 among themselves, distinguishing themselves from those of tlie sectarian 
 and independent way; that they might be in a better capacity for afford- 
 ing help and relief to the oppressed heritage of God through the land ; 
 and that they might endeavour to lift up 2l judicial as well as a doctrinal 
 testimony for Scotland's covenanted Reformation; and against the present 
 declinings and backslidings from the same." In March, 1734, the asso- 
 ciated brethren published a testimony, with a review of a narrative of the 
 proceedings against them, published by the commission of Assembly. In 
 reviewing this document, they say : "Our ordination vows and engage- 
 ments oblige us to the several steps we have taken. We are indeed bound 
 at our ordination, to subject ourselves unto the judicatories of the church; 
 but it is not an absolute subjection that we engage unto; it is not a blind 
 and implicit obedience that we bind ourselves unto, but a subjection in 
 the Lord ; a subjection qualified and limited by the word of God, and 
 the received and known principles of this church. The obligation of our 
 ordination vows, to maintain communion with the established church, is 
 subordinate to their obligation, by these vows, for maintaining the Refor- 
 mation principles ; so that the same vows, which did formerly bind us to 
 communion with the established church, do now bind us to secession from 
 her. Our submission to judicatories is according to the Word of God ; 
 and our received and approved standards of doctrine, worship, govern- 
 ment, and discipline : these are the only terms of ministerial communion 
 amongst us ; and we refuse that we have broken through any of them. 
 We have continued in ministerial communion with what is reckoned the 
 established church, till the prevailing party have declared that they will 
 not allow us any longer ministerial communion with them. The prevailing 
 party have now declared, that they will allow none to continue in minis- 
 terial communion with them, who shall testify, either doctrinally from the 
 pulpit, or by protestation in the supreme judicatory, against their sinful 
 and unwarrantable proceedings. We have made a secession from the pre- 
 vailing party, who are carrying on the course of defection. Our secession 
 is not from the Church of Scotland : we own her doctrine, contained in 
 her Confession of Faith ; we observe the received and approved unifor- 
 mity of worship ; we adhere unto her presbyterian government and disci- 
 pline, according unto the word of God, and our solemn covenant engage- 
 ments; and we have not been convicted of anything in doctrine or practice 
 to the contrary." 
 
 The establishment now became alarmed at the effects of the General 
 Assembly's arbitrary proceedings. The schism was evidently widening, 
 and presented a very threatening aspect. The presbyteries therefore sent 
 
THE SECESSION. 741 
 
 up, says Willison, " pious and experienced ministers, with sincere inten- 
 tions, to have matters settled upon a better footing if possible. Now it 
 would have extremely strengthened their hands, in their good designs to 
 redress grievances and advance reformation, if the four brethren had 
 tabled (laid) their complaint before them, and represented what they 
 would have the Assembly to do to satisfy them j but this they declined to 
 do, though they were all in the town at the time."* The Assembly of 
 1734 repealed several obnoxious acts of Assembly, " because they were 
 found hurtful to this church." They reversed the settlement of a minister 
 who had been forcibly placed at Auchtermuchty by the commission. They 
 declared the sentences of the commission to be reversible. They reviewed 
 and contracted the powers of that court of delegates, and prohibited it 
 from forcibly settling a presentee, where the local synod or presbytery op- 
 posed it. They empowered the commission to address the king and par- 
 liament for relief from patronage. They empowered the synod of Perth 
 and Stirling to restore the four ejected brethren to their charges, and the 
 communion of the church. And they enacted, " that due and regular 
 ministerial freedom is still left entire to all ministers." In July of the 
 same year, the synod " did take off the sentences pronounced by the com- 
 mission of the General Assembly of 1733, against the foresaid four bre- 
 thren, declaring the same of no force or effect for the future :" and so 
 *' did unite and restore them to ministerial communion with this church, 
 to their several charges, and to the exercise of all parts of the ministerial 
 function therein." 
 
 A door was now opened for the seceders to have returned to commu- 
 nion with their established brethren. They debated the subject accordingly. 
 The result was, " that though they owned some parts of grounds of their 
 secession to be removed, by the repeal of the foresaid acts, 1730 and 1732, 
 yet they found the 'principal ground of it remaining, unremoved, yea 
 rather aggravated by the Assembly, 1734. So that they could not accede 
 to the judicatories in a consistency with, or without falling from, the testi- 
 mony they had given."f In their " Reasons of Non-accession," published 
 in May, 1735, they say : " When matters were come to such a pass that 
 we were excluded from keeping up a proper testimony against the defec- 
 tions and backslidings of the prevailing party, in a way of ministerial 
 communion with them ; we judged it our necessary duty, for this and 
 other reasons, to make a secession from the judicatories of the estah- 
 lished church : and since the Lord, in his adorable providence, permitted 
 the judicatories to thrust us out at a time when a course of defection was 
 carried on with a high hand ; it will therefore be necessary, for the vindi- 
 cation of our present conduct, to inquire if the Assembly, 1734, have at 
 * Willison's Testimony, &o., p. 81. f Reasons of Non-accession. 
 
742 THE SECESSION. 
 
 least so far removed the grounds of our secession, that we may, in a con- 
 sistency with the testimony we have emitted, accede unto the judicatories 
 of the church, and join in ministerial communion with them." 
 
 At same time with their reasons for non-accession, the seceders made 
 some proposals for the removal of some of those difficulties which stood 
 in the way of their reunion. Not, however, as being all that they wanted, 
 but " if they were done, we might have the comfortable prospect of a 
 pleasant and desirable unity and harmony with our brethren ; in con- 
 curring with them, according to our weak measure, in all other necessary 
 steps towards a further reformation." The substance of their proposals 
 was as follows: — " That there should be a seasonable warning against the 
 infidelity and gross errors prevailing ; a proper assertion of the truth, in 
 opposition to Mr Simson's Arian heresy; and express condemnation of his 
 other gross and dangerous errors; an inflicting of the highest censure of 
 the church upon William Nimmo, for the bold and daring attack upon the 
 whole of divine revelation, if found proven against him ; and an inflicting 
 of the same censure on Mr Campbell, and Mr Wallace, one of the minis- 
 ters of Edinburgh, for gross and pernicious errors vented by them, upon 
 these errors being found proven against them; that the act of Assembly, 
 1733, concerning Mr Erskine and his three brethren, should be declared 
 rescinded; — and all that had followed thereupon declared null and void in 
 itself ; and the ministers enjoined to' give faithful warning against the 
 prevailing corruptions of the times: that the act of Assembly, 1733, 
 concerning some brethren in the presbytery of Dunfermline, should be 
 also rescinded; and ministers declared at freedom to dispense sealing or- 
 dinances to such as could not submit to the ministry of intruders; that 
 the acceptance of presentations should be declared contrary to the princi- 
 ples of this church ; probationers accepting of them to be deprived of their 
 license; ministers, for such a transgression, to be suspended, and, if tena- 
 ciously adhering, deposed ; and an act passed against any settlement, in 
 time coming, without the call and consent of the majority of the congre- 
 gation, who are admitted to full communion with the church in all her 
 sealing ordinances: that all presbyteries should be strictly enjoined to use 
 due caution and tenderness in the licensing of young men; and an act be 
 passed against the dangerous innovation both in the method and strain of 
 preaching; and that, in the grounds of a national fast, there should be an 
 acknowledgment of the great guilt of this land ; and in having gone on 
 into such a course of backsliding, contrary to the word of God, and to the 
 obligations those lands are under to promote reformation, by our cove- 
 nants, national and solemn league ; with a full and particular enumeration 
 of the steps of defection made in our day."* 
 
 * Reasons of Non-acctssioii, p. 50. 
 
THE SECESSION. 743 
 
 The seceders thought, at the end of two years, that they had still grounds 
 of complaint. Forcible settlements still continued. Mr Campbell was dis- 
 missed from the bar of Assembly without censure, although In's published 
 opinions were erroneous. They therefore resolved to act in a judicial ca- 
 pacity. They determined to administer divine ordinances to such as should 
 apply for them. They agreed to settle their terms of fellowship, and assert 
 the genuine principles and attainments of the Church of Scotland. For 
 which purpose, in 1736, they published a judicial testimony; likewise an en- 
 largement of their former testimony on the doctrine of grace, in which they 
 explained and vindicated the difference between the law and the gospel, and 
 the motives and grounds of evangelical obedience. This was in opposition 
 to the acts of the General Assembly respecting the Marrow of Modern 
 Divinity, and the legal strain of preaching that had become common. They 
 also renewed and swore to the solemn league and covenant. They, at 
 same time, emitted a declaration of their principles respecting the civil 
 government. Many of those who recognised the covenant as a fundamental 
 principle, had not only refused to communicate with the establishment, but 
 to acknowledge the civil government, or to obey the magistrates. These 
 people continued some time without ministers. They were at last joined 
 by Mr Macmillan, a minister of the establishment. The associate pres- 
 bytery accordingly condemned tlieir principles. Mr Nairn, one of the 
 seceders, dissented from this position, and defended the principles of the 
 covenanters, because the magistrates were deficient of those qualities 
 required by the covenant. He asserted that none but a covenanted pres- 
 byterian could be the lawful sovereign of this realm. He accordingly 
 separated from the seceders ; and, joining Mr Macmillan, these two con- 
 stituted the Reformed Presbytery. 
 
 The seceding brethren were much displeased at the transactions of tlie 
 General Assembly, respecting some professors who had taught and pub- 
 lished doctrines inconsistent with the Confession of Faith. " They took 
 occasion," says Willison, " to carry their secession and separation to very 
 great heights by licensing preachers, invading parishes, and preaching up 
 separation everywhere, not sparing their best friends, nor those who dis- 
 sented from the evils of the time, but charging the whole ministry with 
 very black things." For these causes, and also the testimony so often 
 cited, the Assembly cited the seceding bretliren to appear at their bar, in 
 1739. Accordingly, the whole eight brethren appeared in the capacity 
 of a constituted court, headed by their moderator. But instead of answer- 
 ing to their indictment, the associate synod, by the ministry of their mo- 
 derator, read an act of their own court. This act condemned the courts 
 of the establishment, as not being lawful courts of Christ. Their mode- 
 rator then, in the name of the secession presbytery, declined the authority 
 
744 THE SECESSION. 
 
 and jurisdiction of the General Assembly. They then withdrew from the 
 bar, and the breach became irreconcilable. The Assembly then enacted, 
 *' that for their declinature, contempt, and schismatical courses, &c., they 
 deserve deposition." But to give them time for reflection, and to return 
 to their duty, they forbore for one year ; and accordingly cited them to 
 the bar of the Assembly of 1740. This citation the brethren held in 
 due contempt. The Assembly of 1740 therefore deposed the whole 
 eight brethren, in these words : They depose them from the office of 
 the holy ministry^ prohibiting them to exercise the same within this 
 church* 
 
 The secession from the establishment had now become so considerable, 
 that, before the year 1745, so many presbyteries had been constituted, in 
 different parts of the country, that they were enabled to form a supreme 
 court, or synod. The secession was now called the Associate Synod. 
 But with their success, " the leaven of prejudice and suspicion insinuated 
 itself, soured their minds, and fomented any difference of sentiment which 
 at first existed among them."-]- The period was now arrived when the 
 seceders were to be divided into burghers and antiburghers. In 1745, 
 the question of the lawfulness of burgess oaths was debated in the synod. 
 The clause under debate was : " Here I protest, before God and your 
 lordships, that I profess, and allow with my heart, the true religion pre- 
 sently (at present) professed within this realm, and authorized by the laws 
 thereof : I shall abide thereat, and defend the same to my life's end ; re- 
 nouncing the Roman religion called papistry." The two Erskines, Fisher, 
 and others, contended that it was the religion itself, and not its maladmi- 
 nistration, to which they were required to swear : that they had not set 
 up a new religion, but clave closely to what they had previously professed: 
 that since they had solemnly approved of the doctrine, worship, discipline, 
 and government ; since they had solemnly declared their adherence to the 
 Westminster Confession : that by their ordination vows they had sworn to 
 that very religion, doctrine, worship, discipline, and government, professed 
 and established in the realm : that although they had objected to the man- 
 ner in which the true religion is at present professed and settled : that 
 though they had testified against the corruptions both in church and state : 
 yet they had, but two years before, judicially declared the established re- 
 ligion to be the true religion itself They had solemnly thanked God, 
 " that our religion has such security by the present civil government as 
 no nation on earth enjoys the like." Therefore " the synod could not, 
 without the most glaring self-contradiction, prohibit the swearing of the 
 above clause, as in itself sinful for a seceder." On the other hand, Messrs 
 
 * Willison's Ttstimony, pp. 91, 92. \ Willison's Testimony, p. 68. 
 
THE SEChJSSION. 745 
 
 Moncrief, Mair, Gibb, and others, contended that this oath, being admi- 
 nistered for the security of the establishment, was to be understood in the 
 sense of the imposers. That the true religion^ to which it referred, must 
 mean the corruptions in its administration, from which they had seceded. 
 That it not only contemplated the corruptions in the state religion, but in 
 the state itself j which, by consequence, implied a departure from the 
 whole of their testimony. In fact, it gave up the whole cause of their 
 secession. And therefore the words " true religion, presently (at present) 
 professed and authorized," might be applied indifferently to a true and 
 a false religion. The synod of 1746 came to this decision : that " those of 
 the secession cannot, with safety of conscience and without sin, swear any 
 burgess oath with the said religious clause, while matters with reference 
 to the profession and settlement of religion continue in such circumstances 
 as the present." The minority on this question protested against this 
 decision. The bitter waters of controversy were now let loose, and violently 
 agitated the whole body. In the synod of 1747, it was proposed, that 
 the condemnatory decision of the former synod should, neither then nor 
 afterwards, be a term of ministerial and christian communion ; and that 
 this question be referred to presbyteries and kirk sessions. This question 
 was considered disorderly. Members protested against it accordingly; but 
 as the protesters did not vote, the motion was carried. Those members 
 who supported the original decision subscribed a declaration and protest; 
 in which they maintained, " that, as the meeting had materially dropped 
 the whole testimony, the lawful authority and power of the associate synod 
 is devolved on a constituted meeting of those ministers and elders who had 
 protested against the late vote, and such as should join them." The synod 
 was now divided into two separate and hostile bodies. Each division as- 
 serted that it was the majority ; and each laid claim to the title and powers 
 of the supreme court. The two divisions now constituted two distinct 
 sy nodical courts. That which defended the burgess oath passed an act 
 annulling their opponents' synod. Those who condemned the oath erected 
 themselves into a synod, and excommunicated their antagonists. The two 
 parties were denominated Burghers and Antiburghers. The latter 
 were the most numerous. The former again £, lit into two parties, in the 
 year 1799, and were denominated the Old Light and the New Light 
 Burghers. These, however, effected an union together in the year 
 1819. This union was not effected with unanimity. Nine ministers pro- 
 tested against the Basis of Union, and formed a separate synod, under the 
 denomination of the Associate Synod. 
 
 At the period of these secessions, the General Assembly seems to have 
 been strongly influenced by the lust of power. It had screwed up its 
 authority to a pitch of despotism which drove many from the established 
 
 5 B 
 
746 THE SECESSION. 
 
 communion. Ever since the ordinance of parliament which gave the right, 
 popular election has always been a favourite measure in Scotland. To 
 enforce the legal presentations of patrons, the General Assembly had exer- 
 cised its executive powers with considerable energy. Presentees were 
 usually denominated " intruders." One of those violent settlements, in the 
 year 1752, occasioned another secession from the establishment. A Mr 
 Andrew Richardson was presented to the church and parish of In verkei th- 
 ing, in the presbytery of Dunfermline. The parishioners objected vehe- 
 mently, and appealed to the General Assembly then sitting. That court 
 ordered the presbytery peremptorily to induct Mr Richardson. Every mi- 
 nister within the presbytery was ordered to attend and witness the execu- 
 tion of their sentence. Mr Thomas Gillespie, minister of Carnock, and five 
 other ministers, refused to obey the Assembly's mandate. They sympathised 
 with the parishioners in their desire to elect a minister more agreeable 
 ** to the inclinations of the people " than Mr Richardson appears to have 
 been. The Assembly summoned the whole presbytery of Dunfermline to 
 their bar. At the bar, Mr Gillespie and his five associates acknowledged 
 their disobedience to the Assembly's mandate. In vindication, they stated 
 their objections to intrusions and violent settlements. They reminded the 
 Assembly, that that court itself, in 1736, had declared: *' that it is, and 
 has been ever since the Reformation, the principles of this church, that no 
 minister shall be intruded into any parish, contrary to the will of the 
 congregation ; and therefore it is seriously recommended to all judica- 
 tories of this church, to have a due regard to the said principles, in 
 planting vacant congregations, so as none be intruded into such parishes, 
 as they regard the glory of God and the edification of the body of 
 Christ." This appeal to their own decisions only inflamed the already 
 irritable feelings of the Assembly. They deposed Mr Gillespie from his 
 office of the ministry, and loosed his connexion with his parishioners. 
 Willing, as they said, to mix mercy with judgment, the Assembly only 
 suspended the other five from the exercise of the judicial part of their 
 office. Mr Gillespie was alone violently thrust out of his parish, and 
 degraded from his office. The manner and indecent haste of their pro- 
 ceedings were very remarkable. The Assembly issued their mandate for 
 the ordination and induction of Mr Richardson, on Monday. The day 
 for his induction was Thursday, at eleven o'clock. On Friday, every 
 member of the presbytery was summoned to appear at the bar of the 
 Assembly; and, on Saturday, Mr Gillespie was deposed. These energetic 
 measures only occupied the short space of one week. This -indecent haste 
 in so solemn an affair, gave offence to many, and occasioned the establish- 
 ment of the Relief Synod. Such wanton despotism is inseparable from 
 collective bodies of men. Professor Hill says, that the government of the 
 
THE SECESSION. 747 
 
 Church of Scotland is republican. The tyranny and injustice which were 
 practised against Mr Gillespie is inseparable from republican governments. 
 It cannot be otherwise. The odium of a guilty deed is divided among 
 many. Every individual member shifts it off his own shoulders, and thinks, 
 because others were concerned, that therefore he is less guilty. Bodies of 
 men are incapable of mercy. They never pardon. A sentence once passed 
 is irreversible. Therefore governments, where there is only judgment 
 without mercy, cannot be from God. He is essentially merciful ; and 
 his representative, and individual judge or governor, has the principle of 
 mercy within his own breast. Mr Gillespie would never have sustained 
 such a severe and unjust sentence from an individual judge, as a repub- 
 lican court inflicted. That judgment, which was never reversed, occasioned 
 a schism from their body which in a few years mightily increased. Al- 
 tliough deprived of the temporalities, Mr Gillespie considered that his spi- 
 ritual relation still continued. He accordingly preached in the open air to 
 his late parishioners. Persecution added a sanctity to his name, and a 
 popularity to his cause, which he had never before enjoyed. He was con- 
 sidered the champion of the people's rights. In a short time his followers 
 built a chapel in Dunfermline. In the course of a few years he was joined 
 by Mr Thomas Boston, late minister of Oxnam, in Roxburghshire. The 
 General Assembly declared Mr Boston incapable of being again received 
 into the establishment, or even of preaching in a parish church; and dis- 
 charged all ministers under their jurisdiction from holding ministerial 
 communion with him. These two original pillars were soon after joined 
 by a Mr Collier, an English dissenter. These three, with some lay elders, 
 constituted themselves a presbytery at Colinsburgh, in the county of Fife. 
 A trifling circumstance gave rise to their name. Some inhabitants of 
 Colinsburgh solicited them for relief irom the burden of patronage. They 
 therefore denominated themselves the Presbytery of Relief ; which, when 
 their numbers increased, was afterwards changed into the Relief Synod. 
 
 Independency has never flourished much in Scotland. This system was 
 first introduced in England, about the year 1580. Robert Brown has the 
 equivocal honour of being its founder. Hence his followers were first 
 called Brownists. They have had various names : Brownists, Barrowists, 
 Congregationalists ; but they are now generally known by the name of 
 Independents. They became very numerous in England. Neale says, 
 that in their articles of faith they did not differ much from the Church 
 of England, but were very rigid and narrow in points of discipline. They 
 were the most tolerant in their principles of all the sects. Cromwell in- 
 troduced their system into Scotland. Their number was greatly increased 
 some years, by a Mr Haldane sending out itinerant lay preachers. These 
 erected tabernacles in different parts of the country, which settled down 
 
749 POOR LAWS. 
 
 into independent congregations. They have since split into several inde- 
 pendent denominations, at variance with the parent stock. In the time of 
 Oliver Cromwell, a Baptist meeting was established in Edinburgh. But 
 with that exception there are no traces of them in Scotland till the year 
 1765. In that year, Mr Carmichael and Mr Maclean formed a congre- 
 gation, and there are now several Baptist congregations. Neale says, that 
 the first Baptist congregation which assembled in England, was in 1640; 
 when a few individuals, dissatisfied with the lawfulness of infant baptism, 
 assembled in London. They chose a Mr Jesse for their minister, who 
 founded that denomination. There are many other minor seceders and 
 dissenters in Scotland, but we have only mentioned the most prominent. 
 
 The seceders are not dissenters from the Scottish establishment. They 
 allege, that they maintain the doctrine, discipline, and mode of worship, in 
 greater purity. They seceded from it, on account of the maladministra- 
 tion of all these ; and they object especially to the system of patronage. 
 Wlien the maladministration is corrected, they are ready to unite with the 
 establishment. They avow the necessity of popular election in the choice 
 of a minister. On this point, however, there is a division among them ; 
 some contending that only heads of families, who are communicants, are 
 privileged to vote ; others, again, that all of full age, both men and wo- 
 men, are entitled.* 
 
 POOR LAWS 
 
 The law of England recognises three descriptions of poor. 1. Poor 
 by impotency and defect. These consist of the aged or decrepid, father* 
 less or motherless ; poor under sickness, idiots, lunatics, lame, blind, &c. 
 2. Poor by casualty. Housekeepers, decayed or ruined by unavoidable 
 misfortunes ; poor persons, overcharged witli children; disabled labourers. 
 —These are to be set to work, if they be able; if they are unable to work, 
 they are to be relieved with money — 3. Poor by prodigality and de- 
 hauchery, commonly called thriftless poor. These are idle, slothful per- 
 sons, pilferers, vagabonds, strumpets, &c. These are to be sent to the 
 house of correction, and to be put to hard labour, to maintain themselves; 
 or work is to be provided for them, that they do not perish for want. If 
 these become impotent by sickness, or if their work will not maintain them, 
 there must be an allowance by the overseers of the poor for their support. 
 
 The law not only regards life and member, and protects every man in 
 
 ^rJ^f T'''""] Tr-^''' ^ "''P^'^y ^^'^^^ Secession Testimony, in the three periods of (he 
 O SnnlS :.Sli iv-n"^? ^^ ^''''* Testimony .-Testimony of the Assod.te Svnod of 
 HgoTwoTd D^^cd " '^^^^ History of the Puritans.- Adams' Re- 
 
i 
 
 POOR LAWS. 74 {I 
 
 the enjoyment of them ; but also furnishes him with everything necessary 
 for their support. For there is no man so indigent or wretched, but he may 
 demand a supply, sufficient for all the necessities of life, from tlie more 
 opulent part of the community, by means of several statutes enacted for 
 relief of the poor. Till the time of Henry VIII., the poor of England 
 subsisted entirely by private benevolence. In Ireland, the poor have not 
 to this day any relief for their wretchedness, but private charity alone. By 
 ancient statutes, the poor were directed to remain in the cities and towns 
 where they were born, or wherein they had dwelt for three years. This 
 seems to have been the origin of parish settlements. After the dissolution 
 of the religious houses, in the reign of Henry VIIT., the idle who would not, 
 and the indigent, infirm, and aged, who could not work, were exceedingly 
 numerous. Before the Reformation, the monasteries were their principal 
 resource. These frequently supported and fed a number of idle and indo- 
 lent poor. This inconvenience was quickly felt throughout the kingdom. 
 Abundance of statutes were made by Henry and his children, to provide 
 for the poor and impotent. These poor were principally of two sorts : 
 the sick and impotent — the idle and sturdy. The former could not, and 
 the latter would not work. To provide for these in the metropolis, Ed- 
 ward VI. founded Christ's and St Thomas's hospitals, for the relief of the 
 impotent through infancy or sickness ; and bridewell, for the punishment 
 and employment of the vigorous and idle. These were insufficient for the 
 poor of the whole kingdom. After many fruitless experiments, overseers 
 of the poor were appointed in every parish.* Their office and duty were 
 cliiefly these: 1. to raise competent sums for the necessary relief of the 
 poor, impotent, old, blind, and such other being poor and not able to 
 work, and them only; 2. to provide work for such as are able and cannot 
 otherwise get employment. By virtue of this statute, the overseers ary 
 nominated annually, in Easter week, or within a month after. 
 
 After the Restoration, a different plan was adopted, which has rendered 
 tire employment of the poor more difficult, by authorizing the subdivision 
 of parishes, has greatly increased the number of the poor, by confining 
 them to their respective districts ; and has given birth to the intricacy of 
 the poor laws, by multiplying and rendering more easy the methods of 
 gaining settlements. In consequence, innumerable and expensive lawsuits 
 are annually entered into, between contending parishes, respecting settle -^ 
 ments and removals. A legal settlement was declared f to be gained by 
 birth, inhabitancy, apprenticeship, or service for forty days; within which 
 periods, all intruders were removable from any parish, by two justices of 
 the peace, unless they settled in a tenement of the annual value of £lO, 
 
 * 43 Eliz. c. 2. f 13 and 14 Char. II. c. 12. 
 
750 POOR LAWS. 
 
 The frauds naturally following this provision, produced a subsequent sta- 
 tute,* which required a written notice, to be given to the parish officers, 
 before a settlement could be gained by so short a residence. Subsequent 
 provisions allowed other notorious circumstances to be equivalent to a 
 written notice. These circumstances have again, from time to time, been 
 altered, enlarged, or restrained, whenever experience of new inconvenience 
 suggested the necessity of a remedy. The system of certificates was in- 
 vented, by way of counterpoise, to restrain a man and his family from 
 acquiring a new settlement by any length of residence whatever. By the 
 statute of Charles II., f all persons who are likely to become chargeable, 
 unless they settle upon a tenement of the yearly value of £10, may be 
 removed to the places where they are legally settled. This statute was an 
 infringement of the liberty of the subject, as nothing can be more cruel and 
 impolitic than to prevent a person from residing in that situation where, 
 by his industry and occupation, he can best procure a competent provision 
 for himself and family. To alleviate this hardship and inconvenience, an- 
 other statute J provided, that the major part of the churchwardens and 
 overseers of any parish or township, shall grant a certificate, under their 
 hands and seals, attested by two witnesses, and allowed and subscribed by 
 two justices, acknowledging the person and his family therein specified to 
 have a legal settlement in their parish or township, and shall direct to some 
 particular parish or township. Such person having delivered this certifi- 
 cate to the parish officers where it is directed, then neither he nor his 
 family are removable from thence till they are actually chargeable. But, 
 3s the object of the certificate was to prevent him from bringing any 
 encumbrance upon the parish where he is thus permitted to reside, he is 
 restrained from gaining a settlement where he lives under the protection 
 of the certificate, by any means whatever, except by renting a tenement of 
 the yearly value of ^eiO, and by a residence in the parish for forty days, 
 or by executing an annual office. But besides these two cases mentioned 
 in the act, it has been held, that a certificate person may gain a settlement 
 by residing upon, or having in the parish where he resides, any estate 
 whatever of his own, provided, if it has been actually purchased by him, 
 he has hona fide paid £30 for it. But the object of granting certificates 
 is now extinguished, by an enactment,^ that no person shall be removed 
 by an order of removal till he becomes actually chargeable. Every un- 
 married woman who is pregnant shall be deemed actually chargeable, and 
 also all persons convicted of any felony, and rogues, vagabonds, and idle or 
 disorderly persons, and persons of evil fame, or reputed thieves, not giving 
 a satisfactory account of themselves, may be removed, as if they were 
 
 * 1 Jam. II I. c. 17. 1 13 and 14, c. 12. t « and 9 Will. III. c. 30. ■S 35 Geo. III. c. 101. 
 
POOR LAWS. 751 
 
 actually chargeable. And when a pauper is ordered to be removed by an 
 order of removal, or by a vagrant pass in case of the sickness of the pau- 
 per, the justices making such an order may direct its execution to be sus- 
 pended : and in the case of an order of removal, the expenses of the main- 
 tenance of the pauper during such suspension shall be borne by tha parish 
 to which the order of removal shall be made. And if an unmarried wo- 
 man is delivered of a child during such suspension, it shall be settled in tlie 
 parish which at the time of the birth was the mother's legal settlement * 
 
 There are several descriptions of persons who are incapable of gaining 
 any settlement by any acts of their own. The first is that of married wo- 
 men, who during their marriage state cannot acquire any settlement by 
 any act of their own. The next description is infants under seven years 
 of age. Attainted persons are incapable of acquiring a settlement. A 
 deserter from the army or navy cannot do any act which will entitle him 
 to a settlement. Soldiers, while quartered in a&y place, cannot acquire a 
 settlement there by hiring and service. 
 
 It remains now to show by what methods a settlement may be gained : 
 viz. I. by birth; II. by parentage, being the settlement of either the fatlier 
 or mother; III. by marriage ; IV. by forty days' residence and notice ; 
 V. renting for a year a tenement of the annual value of £10; VI. by be- 
 ing charged to and paying the public taxes and levies of the parish ; VIL 
 executing any parochial ofEce ; VIII. by hiring and service : IX. by ap- 
 prenticeship ; X. by estate. 
 
 It will be observed, that the first three are cases where settlements may 
 rather be said to be communicated than gained by the parties : the rest are 
 cases of settlements gained by the immediate act of the parties themselves. 
 The following act is of some importance, and therefore necessary to be 
 noticed here. The preamble recites, that divers local acts of parliament 
 having lately passed, containing enactments relative to the maintenance 
 and regulations of the poor, varying the general law with respect of parti- 
 cular districts, parishes, townships, or hamlets, and being expedient that 
 some of such enactments should be repealed, &c., it is enacted, 
 
 I. That all enactments and provisions contained in any act or acts of parliament since the 
 commencement of the reign of his lale majesty George I., whereby any alteiation is made 
 in respect of gaining or not gaining a settlement within any particular district, parish, town- 
 ship, or hamlet, shall be and the same are hereby repealed; and that all and every person 
 shall be deemed and taken to have acquired and to acquire a settlement in every such dis- 
 trict, parish, township, or hamlet, by any ways and means he, she, or they would or might 
 do, in case such act or acts, or any of them, had not been made and passed ; and notwith- 
 stiinding the same or any of them are or was in force and operation. 
 
 II. No person shall be deemed or taken to acquire any settlement in any district, parish, 
 
 * Professor Christian's Notes on Blackstone. 
 
752 POOR LAWS. 
 
 &c., by reason of such person being born of the body of any mother actually confined as a 
 prisoner within the walls of any prison, or any house licensed for the I'eception of pregnant 
 women, in pursuance of an act made and passed in the 13th year of his present majesty's 
 reign, for the better regulation of lying-in hospitals and other places appropriated for the 
 charitable reception of pregnant women, in which any such prison or house shall be situated. 
 
 III. That whensoever any person shall be born of the body of any poor person, in any 
 house of industry or house for the reception and care of the poor of any district, &c. , which 
 shall be locally situated in such parish, &c., not contributing to such expense, such person 
 shall, so far as regards the settlement of such person, be deemed and taken to be bom in the 
 district, &c., by whom the mother of such person was sent to, and on whose account the 
 mother ol such person was received and maintained in such house. 
 
 IV. No person shall be deemed or taken to gain any settlement by reason of any resi- 
 dence within any parish, &c., while he, she, or they shall be detained or confined as a pri- 
 soner within any such parish, &c., on any civil process, or for any contempt whatsoever. 
 
 V. No gatekeeper or tollkeeper of any turnpike road or navigation, or person renting the 
 tolls, and residing in any tollhouse of any turnpike road or navigation, shall thereby gain any 
 settlement in any parish, &c. 
 
 VI. No person or pereons shall gain any settlement in any parish, &c., by reason of any 
 residence in any house or other dwelling place provided for the residence of such person or 
 persons, by any charitable institution, while such person or persons shall be supported and 
 maintained at the expense of such charitable institution, as an object or objects of such 
 charity.* 
 
 By another statute it is enacted, that every house and building which shall be purchased 
 or hired under its authority, shall in all questions relative to the settlement of persons Iwrii 
 or lodged therein, be deemed and taken to be part of the parish on behalf of which the same 
 shall be purchased or hired, and by which the same shall be used as a poorhouse or work- 
 house, f 
 
 Settlement by Birth. — "By 13 Geo. II. c. 29, for confirming and 
 enlarging the powers given by charter to the governors and guardians of 
 tlie hospital for the maintenance and education of exposed and deserted 
 young children, it is provided, that no child, nurse, or servant, received or 
 employed in such hospital, shall, by virtue thereof, gain any settlement in 
 the parish where such hospital shall be situated, and consequently, the 
 settlement of foundlings is not different from that of all other persons ; 
 that is, if they are legitimate children they shall follow their father's settle- 
 ment, if known; if not, then their mother's settlement. If neitlier of these 
 is known, or if they are bastards, they shall be settled where they were 
 born; if that cannot be known which is properly the case of a foundling, 
 this seems to fall under the general rule^ that every person shall be main- 
 tained and provided for in the place where he happens to be, until a 
 settlement can be found; for, in a Christian civilized country, no person 
 ought to be suffered to perish merely for want of necessaries." Only in 
 the present case, the act takes such children of the parish, and leaves them 
 to the provision of the hospital. A bastard child is prima facie settled 
 where born ; because a bastard must from necessity gain a settlement in 
 its place of birth, for having no father in the eye of the law it cannot be 
 
 * 5i Geo. III. c. 170. f 59 Geo. III. c. 12. 
 
POOR LAWS. ' 763 
 
 Otherwise provided for, except a reputed father can be found. But to this 
 general rule there are several exceptions. If a woman come into a place 
 by privity and collusion of the officers where she belongs, and there is de- 
 livered of a bastard, it gains no settlement, notwithstanding its birth. If a 
 bastard is born under an order of removal, and before the mother can be 
 sent to her place of settlement, the child gains no settlement where so born, 
 but at the mother's settlement. A child born in the house of correction or 
 of industry takes its mother's settlement. 
 
 Legitimate children's birth does not entitle them to a settlement, except 
 where tliat of their father and mother is unknown, and then only till it is 
 known. Formerly it was held, that a child shall continue with its parents 
 as a nurse child, until it shall be eight years of age, during which time it 
 shall not be deemed capable of gaining a settlement in its own right ; but 
 by the later resolutions it seems to be agreed, that a legitimate child shall 
 necessarily follow its parent's settlement as a nurse child, or as part of the 
 family, only until it shall be seven years of age; and that after that age it 
 shall not be removed as part of the father's family, but with an adjudica- 
 tion of the place of its own last legal settlement, as being deemed capable 
 at that age of having gained a settlement for itself. The precise time 
 when any one may have acquired a settlement in his own right, is at the 
 age of seven years and forty days ; for a child of seven years of age may 
 be bound apprentice to a shipwright, fisherman, owner of a ship, or other 
 person using the trade of^the seas;* and by the vagrant actf a vagrant's 
 child of that age may by the justices be put out an apprentice ; and as 
 soon as he shall have resided and lodged in a parish for forty days under 
 the indenture, he will have thereby gained a settlement. 
 
 By Apprenticeship. — By the statute:}; " If any person shall be bound 
 an apprentice by indenture, and inhabit in any town or parish, such bind- 
 ing and inhabitation shall be adjudged a good settlement, though no such 
 notice in writing be delivered and published." Being bound an apprentice 
 gives the servant and apprentice a settlement without notice, in that place 
 where they serve the last forty days. This is meant to encourage industry 
 and application to trades and reputable service. 
 
 By Service.— By a clause in the act § it is enacted, that " If any 
 unmarried person, not having child or children, shall be lawfully hired 
 mto any parish or town for one year, such service shall be adjudged and 
 deemed a good settlement therein, though no such notice in writing be 
 delivered and published." And further, " Whereas some doubts having 
 arisen touching the settlement of unmarried persons not having child or 
 children, lawfully hired into any parish or town for one year, it is enacted 
 
 * 5 Eiiz, c. 5, s. \t. ^ 17 Geo. II. i 3 W. and M. c. 8. § 3 W. and M. 
 
 6 c 
 
754 POOR LAWS. 
 
 and declared, that no such person so liired as aforesaid, shall be adjudged 
 or deemed to have a good settlement in any such parish or township, 
 unless such person shall continue and abide in the same service during the 
 space of one whole year."* Being Iiired for a year when unmarried and 
 childless, and serving a year in the same service, gains a settlement. But 
 soldiers, seamen, or any artificer employed in the king's service, are ex- 
 pressly prevented from a settlement till after they have been discharged 
 from the king's service. The settlement of a servant and apprentice is 
 where they last reside forty days in their master's employment ; and where 
 they do not reside forty days successively at one place, but alternately in 
 two or more parishes, and more than forty days upon the whole in each in 
 the course of a year, the settlement is in that parish in which tliey sleep 
 the last night. 
 
 By Marriage. — The wife takes her husband's settlement. But it 
 has hitherto been rather doubtful, wliat shall be deemed a sufficient mar- 
 riage, so as that a woman shall gain a settlement thereby; and the courts 
 having always been favourable in admitting marriages, although not strictly 
 solemnized according to the laws of the church ; now, however, a great 
 distinction is made between marriages solemnized before tlie 25th of March, 
 1754, and after that time, for, by the said statute, it is enactedf that after 
 25th March, 1754, all marriages (except in Scotland, and except the mar- 
 riages of Jews and Quakers, where both the parties are Jews or Quakers 
 respectively) which shall be solemnized without license or publication of 
 banns, or in any other place than a church or public chapel, (unless by 
 special license from the archbishop of Canterbury,) or without the consent 
 of parents or guardians, (where either of the parties, not being a widower 
 or widow, is under the age of twenty-one,) shall be null and void to all 
 intents and purposes whatsoever. It is a good general rule, that a woman 
 marrying a husband who has a known settlement, shall follow the hus- 
 band's ; and it appears to be agreed, that a wife cannot gain a separate 
 and distinct settlement from her husband, during their marriage j neither 
 does a woman, marrying a husband who has no known settlement, lose 
 her former settlement which she possessed before her marriage. A woman, 
 marrying a foreigner who dies, must be sent to the place of her own 
 settlement before marriage. A woman, marrying a man who is settled 
 in another parish, changes her own settlement, the law not permitting the 
 separation of man and wife. But if the man has no settlement, hers is 
 suspended during his life, if he remains in England, and is able to maintain 
 her; but in his absence, or after his death, or during his inability, the wife 
 and her children may be removed to her maiden settlement, but it seems 
 
 * 8 and 9 W. and M. c. 30. f 26 Geo>II, c. 33. 
 
POOR LAWS. 756 
 
 fully determined that they cannot be separated or removed from the 
 husband. 
 
 By Notice. — For a stranger to gain a settlement in a parish, he is 
 required to give a written notice to a churchwarden, which notice must 
 be publicly read in the church next Sunday after. If after this publication 
 he is allowed to reside forty days within the parish, he then acquires a legal 
 right of settlement. It is the overseer's business to prevent this, by eject- 
 ing him, if necessary, before he resides the proper time. After all, this 
 kind of settlement, by continuing forty days, after publication of a written 
 notice, is very seldom obtained, and the design of the acts * is not so much 
 for the gaming of settlements as for preventing them, by persons coming 
 clandestinely into a parish; for the giving and publishing a notice makes 
 ejectment compulsatory on the parish. But if a person's situation is such, 
 that it is doubtful whether he is actually removable or not, he shall, by 
 giving notice, compel the parish either to allow him an uncontested settle- 
 ment, by suffering him to remain forty days, or by removing him to try 
 the right. But it is now enacted ,f that no person in future shall gain a 
 settlement by such notice. 
 
 By Parish Rates. — '' If.any person who shall come to inhabit in any 
 town or parish shall be charged with, and pay his share towards, the public 
 taxes or levies of the said town 'or parish, he shall be adjudged to have a 
 legal settlement in the same, though no notice in writing has been delivered 
 and published.''^ But by a subsequent statute,^ " no person after the 22d 
 June, 1795, who shall come into any parish, township, or place, shall 
 gain any settlement therein, by being charged with, or paying, his share 
 towards the public taxes or levies of such places, for and on account of, or 
 in respect of any tenement not being of the yearly value of JBIO." The 
 tenement must consist of a house, or building, or land, within the parish, 
 or both hona fide liired by him at £lO for the term of one whole year. 
 The rent must be paid by the person hiring, and the whole of the land, as 
 well as the house, must be situate within the same parish or township; and 
 unless the whole of the rent has been actually paid, the tenant does not 
 gain a settlement. 
 
 By serving a Parish Office. " But if any person shall come to 
 inhabit in any town or parish, shall for himself and on his own account 
 execute any public annual office or charge in the said town or parish dur- 
 ing one whole year, he shall be adjudged to have a legal settlement in the 
 same, though no such notice in writing be delivered and published." j] Exe- 
 cuting by legal appointment any parochial office, for a whole year in the 
 
 ♦3 W. and M.c. ll,s. 3, 5. t 35 Geo. III. c. 101. :[ 3 W. and M. c. 11, s. 6. 
 
 § 35 Geo. ill. c. 101. || 3 W. c. 11 s. 6. 
 
756 POOR LAWS. 
 
 parish, as ehurchwarden, &c., is equivalent to notice^ and gains a settle- 
 ment, if coupled with forty days' residence. 
 
 By Renting L.lO per Year. — "On complaint within forty days, 
 after any person shall come to settle in any tenement under ten pounds a- 
 year, two justices may remove him to where he was last legally settled for 
 forty days."* " No person who shall come into any parish by certificate, 
 shall be adjudged by any act whatsoever, to have gained a legal settlement 
 in such parish, unless he shall really and hona fide take a lease of a tene- 
 ment of the yearly value of ten pounds, or shall execute an annual office 
 in such parish." Renting a tenement of the annual rent of ten pounds^ 
 and residing forty days in the parish, gains a settlement without notice, 
 upon the principle of having sufficient substance to gain credit for such a 
 house. And it is not necessary that the renting should be for a yearj if 
 the annual value of ten pounds be taken for two months or forty days 
 only, it is sufficient to gain a settlement. Neither is it necessary that there 
 should be a house on the premises, the renting of after-grass or pasturage 
 will be sufficient. On the 2d July, 1819, the following act passed both 
 houses, to amend the laws respecting the settlement of the poor so far as 
 regards renting tenements : " Whereas many disputes and controversies 
 have arisen respecting the settling of poor people in parishes in England 
 by the renting of tenements, be it enacted, &c., that from and after the 
 passing of this act, no person shall acquire a settlement in any parish or 
 township maintaining its own poor in England, by or by reason of his or 
 her dwelling for forty days in any tenement rented by such person, unless 
 such tenement shall consist of a house or building, or of land, within such 
 parish or township, or of both hona fide hired by such person, at and for 
 the sum ef ten pounds a-year at the least, for the term of one whole year; 
 nor unless such house or building shall be held, and such land occupied, 
 and the rent for the same actually paid, for the term of one whole year 
 at the least, by the person hiring themj nor unless the whole of such land 
 shall be situate within the same parish or township as the house wherein 
 the person hiring such land shall dwell and inhabit." f 
 
 By Estate. — If a person possesses a freehold, and residing on it forty 
 days, although under ten pounds a-year, he cannot be removed from it. 
 And the courts have decided, that where a person has an estate for life, 
 or an estate of inheritance of his own, and residing therein forty days, 
 however small the value may be, in case it be acquired by act of law or of 
 a third person, as by descent, gift, devise, &c., it is a sufficient settlement; 
 but if a man acquire it by his own act, as by purchase, then, unless the 
 consideration advanced be hona fide thirty pounds, it is no settlement for any 
 
 * 13 and 14 Char. II. c. 12. f 59 Geo. Ill c. 50. 
 
POOR LAWS. 757 
 
 longer time than the person shall inhabit it. He cannot be removed from 
 his own property, but he cannot acquire a permanent and lasting settle- 
 ment by any trifling or fraudulent purchase. 
 
 Removals. — The law is equally explicit regarding removals as it is on 
 the right of settlements, but the ingenuity of lawyers and the blunders of 
 ignorant overseers have raised an infinite number of difficulties, and occa- 
 sioned an enormous waste of parish funds, which have given plentiful 
 occupation to the judges and juries of the court of King's Bench. The 
 statute of Charles II., which has been so repeatedly quoted, is the founda- 
 tion on which all orders of removal are or ought to be established. It is 
 as follows : " Whereas, by reason of some defects in the law, poor people 
 are not restrained from going from one parish to another, and therefore 
 endeavour to settle themselves in those parishes where there is the best 
 stock, the largest commons or wastes to build cottages, and the most for 
 them to burn and destroy, and when they have consumed it, then remove 
 to another parish, and at last become rogues and vagabonds; it is enacted, 
 that it shall be lawful, upon complaint made by the churchwardens or over- 
 seers of the poor of any parish, to any justice of the peace, within forty days 
 after any such person coming so to settle in any tenement under the yearly 
 value of ten pounds, for any two justices of the peace, of the division where 
 any person that is likely to become chargeable to the parish shall come to 
 inhabit, by their warrant to remove and convey such person to such parish 
 where he was last legally settled, unless he give sufficient security for the 
 discharge of the said parish, to be allowed by the said justices."* " And 
 if such person shall refuse to go, or shall not remain in such parish where 
 he ought to be settled, but shall return of his own accord to the parish from 
 whence he was removed, one justice may send him to the house of correc- 
 tion, there to be punished as a vagabond."f There is, however, a power 
 of appealing against an order of removal : " All persons who think them- 
 selves aggrieved by any such judgment of the said two justices, may ap- 
 peal to the justices of the peace of the said county at their next quarter 
 sessions, who shall do them justice according to the merits of their cause.":[: 
 And " the appeal against any order of removal of any person, shall be had, 
 prosecuted, and determined, at the general or quarter sessions of the peace 
 for the county, division, or riding, wherein the parish, township, or place, 
 from which such poor person shall be removed, doth lie, and not elsewhere." § 
 All persons not settled as above may be removed to their own parishes, 
 by two justices of the peace, on the overseer's complaint, if they shall judge 
 them likely to become chargeable to the parish into which they have in- 
 truded, unless they are in a way of gaining a legal settlement, as by annual 
 
 ♦ 13, 14 Char. II. c. 12. f 17 Geo. II. x 13. 14 Char. II. § 8 and 9 W. and M. 
 
758 POOR LAWS. 
 
 rent of ten pounds, or by service, because in either of these cases they are 
 not removable. And in all other cases, if the parisii to which they belong 
 will grant them a certificate, acknowledging them to be their own parish- 
 ioners, they cannot be removed merely because they are likely to become 
 chargeable, but only when they become actually chargeable. But such 
 certificated persons cannot gain a settlement by any of the foregoing means, 
 unless by renting a tenement of ten pounds per annum, or by serving an 
 annual office in the parish ; neither can an apprentice or servant to such 
 certificated person gain a settlement by serving them.* 
 
 Of the Poor's Rate — " The churchwardens and overseers of the 
 poor of every parish, or the greater part of them, shall raise weekly, or 
 otherwise, (by taxation of every inhabitant, parson, vicar, and other, and 
 of every occupier of land, houses, tithes impropriate, propriatory of tithes, 
 coal mines, or saleable underwoods in the said parish,) a convenient stock 
 of flax, hemp, wool, thread, iron, and other ware, and stuff to set the poor 
 on work, and also competent sums for the necessary relief of the lame, 
 impotent, old, blind, and such other among them, being poor, as are not 
 able to work, and also for putting out poor children appro ntices."f *' The 
 churchwardens and overseers shall cause public notice to be given, in the 
 church, of every rate for the relief of the poor allowed by the justices, the 
 next Sunday after such allowance ; and no rate shall be reputed sufficient 
 to be collected, till after such notice given.":}: Some parishes are rated on 
 valuations taken in the reign of Charles I., when the value of property was 
 very different from what it is at present, and therefore a rate of five, ten, 
 or twelve shillings in the pound, for the maintenance of the poor, is not 
 really so great as it appears, as the rate is calculated on the valued rent, 
 and not on the actual value at present. The rate, however, when once 
 made and duly published, may be levied by distress, against which the law 
 allows an appeal. And it is reasonable that the party should be heard in 
 his own defence before the justices, and not be left to the private resent- 
 ment of the parish officers, who may sell a man's goods without sufficient 
 cause. The oath of refusal must be made before the justices, showing 
 cause wliy a distress should not be granted, such as that the rate was not 
 regularly allowed, or was not published in the churcli, or that notice of 
 appeal had not been given, or that neither demand nor refusal had been 
 made, and such like. When a worthless husband deserts his wife or family, 
 they are immediately provided for by the parish, and a reward advertised 
 for the apprehension of the fugitive, whose goods and chattels are forfeited 
 to the parish ; and if the family thus deserted have any legal claims, the 
 
 * Burn's Justice, Art. Poor.— Blackstone's Commentary.— Professor Christian's Notes, 
 t ^ ElJz. I 17 Geo. II. c. 3. 
 
POOR LAWS. 759 
 
 parish, by prosecuting the party, may be relieved from the burden of main- 
 taining them, and the overseers are made accountable to the justices at the 
 quarter sessions for all such money as they shall in this way receive."* 
 
 The law declares parents and children mutually liable for support. The 
 father and grandfather, mother and grandmother, and the children of every 
 poor, old, blind, lame, and impotent person, or other persons not able to 
 work, being of a sufficient ability, shall, at their own charges, relieve and 
 maintain every such poor person in that manner and according to that rate, 
 as by the justices of that county, where such sufficient persons dwell in 
 their sessions, shall be assessed on pain of twenty shillings a-month ; which 
 penalty shall.go to tlie poor of the same parish, and be levied by some or one 
 of the churchwardens or overseers, by warrant from two justices, by dis- 
 tress ; or in defect thereof, any two such justices may commit the offender 
 to the common jail, there to remain, without bail or mainprise, till the 
 said forfeiture shall be paid."f 
 
 Every individual who has a settlement enjoys it in his own independent 
 right, — it is his estate, his birthright, — and he can apply for relief in his 
 extremity to the parish, which has no option. It is bound to relieve his 
 wants. He demands a right, he does not beg a charity; and, certain of 
 never being reduced to absolute want, an Englishman is always the most 
 independent, open, generous, and sincere character. When the horrors 
 of poverty, the desertion of wives, and the cruelties of brutal husbands and 
 unfeeling parents, are considered, how amiable and compassionate does the 
 law of England appear, which provides a refuge and maintenance for the 
 wretched and houseless poor! We have divine authority that "the poor 
 shall never cease out of the land.'' Paupers are not suffered to remain for 
 years unprovided for by the parish ; the law compels the overseers of the 
 parish, if the pauper is not admitted into the workhouse, to pay the weekly 
 aliment in advance. The overseers may erect cottages on wastes or com- 
 mons for the residence of the impotent poor, by an agreement with the 
 lord of the manor. They may contract with any one for the keeping, 
 maintaining, and employing the poor ; and if any pauper shall refuse to 
 work, he shall be put out of the parish books, and declared not to be en- 
 titled to relief.;): 
 
 The report, however, of the select committee of the house of commons, 
 in 1817, gives the following alarming prediction of the effects of the sys- 
 tem of parochial relief to that order of society by whom the rates are con- 
 tributed: "Your committee feel it their imperious duty to state to the 
 house their opinion, that unless some efficacious check be interposed there 
 is every reason to think that the amount of tlie assessment will continue, 
 
 * 5 Geo. II. c. 8. t43Eliz. c. 2. j9Geo. II. c. 2. 
 
760 POOR LAWS. 
 
 as it has done, to increase till, at a period more or less remote, according 
 to the progress the evil has already made in different places, it shall have 
 absorbed the profits of the property on Avhich the rate may have been as- 
 sessed, producing thereby the neglect and ruin of the land, and the waste 
 or removal of other property, lo the utter subversion of that happy order 
 of society so long upheld in these kingdoms." 
 
 In Scotland, the poor laws and their administration stand on a different 
 footing from that which they have obtained in England. In Scotland, the 
 poor laws are not carried into effect by churchwardens and overseers; but 
 by every person of landed property, or of certain professional influence in 
 the country, on whom the law calls to take his individual share in main- 
 taining the system, and in carrying it into successful operation. All the 
 clergy and elders of the different parishes, every landowner throughout the 
 kingdom, however small the size or value of his property may be; and tlie 
 magistrates of cities, acting in the capacity of country landowners, are the 
 persons to whom the administration of the funds are intrusted, and to 
 whom it is left in every parish and town to determine whether there shall 
 be an assessment or not, and its amount. 
 
 The act of 1579 * is the foundation of the Scottish poor laws, and then 
 first introduced the measure of a compulsatory assessment for assisting the 
 impotent poor, and at the same time provided for the suppression of va- 
 grancy. As far back as 1424, acts had been passed for the relief of the 
 poor, which consisted simply of permission to beg, and furnishing them 
 with badges for that purpose, while sturdy beggars and disorderly persons 
 were peremptorily prohibited from begging. A subsequent statute limited 
 the begging badges to ** cruikit folke, seik folke, impotent folke, and weik 
 folke;" and, later still, these same were again confined to beg within the 
 parishes in which they were born. These restrictions were found necessary 
 to prevent the evasion of the laws against vagrants, from wliom the country 
 suffered severely, especially during years of scarcity, who, in 1698, Fletcher 
 of Saltoun says, amounted to 200,000. The cliaracteristic feature of the 
 Scottish system is, and always has been, to support the poor by collections 
 at the church doors, and other funds voluntarily raised, and to shun assess- 
 ment as a great and increasing evil.f The collection and management of 
 the poor's funds is placed in the heritors and kirk session ; and although 
 the judge ordinary is to see the law executed, yet he cannot, in the first 
 instance, modify an aliment to the pauper ; he can only remit to the heri- 
 tors and kirk session to modify one. According to a judicial determination 
 reported by Kilherran : " The heritors have a joint right and power with 
 the kirk session in the administration, management, and distribution of all 
 
 * ^' 74. f IMone} penny. 
 
POOR LAWS. 761 
 
 and every of the funds belonging to the poor of the parish, as well collec- 
 tions as sums mortified for the use of the poor and money stocked out 
 upon interest ; and have a right to be present and join with the session, 
 in their administration, distribution, and employment of such sums, witli- 
 out prejudice to the kirk session to proceed in their ordinary acts of admi- 
 nistration, and application of their collections to their ordinary and inci- 
 dental charities, though the heritors be not present nor attend."* 
 
 It is necessary in Scotland, as well as in England, to entitle poor persons 
 to parochial relief, that they have a settlement, which can only be ac- 
 quired in one of the four following ways: I. by Residence; II. Marriage; 
 III. Parentage; IV. Birth. 
 
 I. Residence. — There is scarcely any restriction as to the persons who 
 may acquire a settlement by residence; and foreigners are equally entitled 
 to obtain this privilege as natives. Three years' residence in any parish is 
 a legal settlement; but when a pauper has resided three years in another 
 parish, it is the parish within which he has resided for the last three years 
 preceding his application for charity, which is bound to support him. 
 Mere residence is sufficient to obtain a settlement, without any of the ac- 
 companying requisites which are necessary by the law of England ; such 
 as possession of a house or estate, hiring and service, &c. Where a set- 
 tlement has once been obtained, it is not lost by mere lapse of time and 
 intermission of residence, unless a new settlement has been acquired. But 
 so soon as a new settlement, by residence, is acquired, the parish of the 
 former settlement is completely liberated. This will hold although the new 
 settlement were in England. One Brown, having acquired a settlement in 
 a Scottish parish, removed to England with his wife and family, and after 
 living there for three years, he deserted them. In an action for aliment, 
 at the instance of the wife and children, the court decided that the Scottish 
 settlement was lost ; and it was only on the ground that by their residence 
 in England they had not acquired a legal settlement there, that they ulti- 
 mately obtained a settlement in the Scottish parish where they liad last 
 resided for three years. 
 
 II. Marriage — On her marriage, a woman immediately obtains her 
 husband's settlement. Her maiden settlement is in consequence suspended, 
 and does not revive by the husband's desertion. A widow continues to 
 hold her husband's settlement, until she acquires a new one by residence as 
 a widow, or by a second marriage. When divorced, a woman loses her 
 husband's settlement, and her maiden one revives. A settlement acquired 
 by marriage, does not entitle her legitimate children by a former marriage 
 to her new settlement, although it acquires this privilege for her illegitimate 
 children. 
 
 * Bell's Law Diet. Art. Poor. 
 5 D 
 
762 POOR LAWS. 
 
 III. Parentage Legitimate children follow their father's settlement, 
 
 illegitimate children that of their mother, even where the father is known, 
 as the law holds the father of a bastard to be uncertain. The derivation 
 settlement of parentage ceases on the child's acquiring a settlement of his 
 own by residence, or in the case of a daughter, by marriage, and it can 
 never be revived. 
 
 IV. Birth. — When a pauper has no settlement, he is entitled to be 
 supported by the parish where he was born. But they cannot have recourse 
 on the parish of their birth if they have acquired a settlement by residence, 
 or during the subsistence of a settlement by marriage or by parentage. 
 
 The recent act, for the amendment and better administration of the laws 
 relating to the poor in England and Wales, has entirely altered the poor 
 laws, and placed them on a new footing. The act is as follows : — 
 
 I. Whereas it is expedient to alter and amend the laws relating to the relief of poor per- 
 sons in England and Wales : Be it therefore enacted by the king's most excellent majesty, 
 by and with the advice, &c., That it shall be lawful for his m.ijesty, his heirs, and successors, 
 by warrant under the royal sign manual, to appoint three fit persons, as commissioners, to 
 carry this act into execution, and also from time to time, at pleasure, to remove any of the 
 commissioners for tiie time being, and upon every or any vacancy in the said number of 
 commissioners, either by removal, or death, or otherwise, to appoint some other fit person to 
 the office ; and until such appointment, it shall be lawful for the surviving or continuing 
 commissioners to act as if no such vacancy had occurred. 
 
 II. The commissioners shall be styled, "the poor law commissioners for England and 
 Wales ;" any two of whom may sit as a board with power to summon and examine witnesses, 
 and call for production of papers on oath; but they are not entitled to inquire into any title. 
 
 III. They shall have a common seal. Rules, &c., purporting to be sealed with such seal, 
 to be received as evidence. 
 
 IV. They must record their proceedings. 
 
 V. They must make a general report to the secretary of state yearly, and also report to 
 the secretary of state when required. 
 
 VII. They have power to appoint assistant commissioners, and to remove the same. But 
 they cannot appoint more than nine assistants without consent of the treasury. 
 
 VIII. Commissioners, while such, cannot sit in parliament. 
 
 IX. Empowered to appoint their own secretary, assistant secretary or secretaries, clerks, 
 and other officers. 
 
 X. No commissioner to be appointed for a longer period than five years. 
 
 XI. Every commissioner and assistant commissioner shall take the following oath ; — " I, 
 A, B., do swear, that I will faithfully, impartially, and honestly, according to the best of 
 my skill and judgment, execute and fulfil all the powers and duties of a commissioner (or 
 assistant commissioner), under an act passed in the fifth year of the reign of king William 
 the fourth, intituled," &c. Names of commissioners and their assistants to be published in 
 the gazette, and notification sent to the clerks of the peace, and published in every county. 
 
 XII. Commissioners may delegate powers to assistant commissioners, and also revoke 
 them. Assistant commissioners may summon persons, and examine them upon ofilh. 
 
 XIII. Persons giving false evidence to be guilty of perjury, refusing to attend when 
 summoned, guilty of a misdemeanour. 
 
 XIV. Reasonable expenses of witnesses to be paid to them out of the poor's rates of the 
 parish interested. 
 
 XV. Commissioners have the control of the administration of relief to the poor. They 
 are also to make rules and regulations for the management of the poor and administration 
 of the laws for their relief. They may also suspend or alter these rules. 
 
POOR LAWS. 763 
 
 XVI. Forty days before general rules can come into operation, they must be submitted 
 to one of the secretaries of state. If, during the forty days, these rules be allowed by the king 
 in council, they can come into operation. If the secretary of slate should afterwards disallow 
 them, they shall cease to operate, but transactions in virtue of them previously are valid. 
 
 XVII. Allgeneral rules shall be submitted to parliament, by one of the secretaries of state. 
 
 XVIII. A printed copy of every rule must be sent to the overseers of each parish before 
 they can come into operation. Every owner of property, or his agent, and rate payers, shall 
 at all times have free access to these rules free of all charge. Any overseer, obstructing or 
 neglecting to give them publicity, is liable to a penalty, not exceeding ten pounds nor less 
 than forty shillings. The disallowance or withdrawal of any rule to be publicly notified. 
 
 XIX. Inmates of workhouses are not obliged to attend any religious sei-vice contrary to 
 their religious principles. 
 
 XX. The orders of assistant commissioner are not of force till they have been approved 
 and sealed by one of the commissionei's. 
 
 XXI. The commissioners are invested with the control of those acts for borrowing money, 
 and all acts relating to the building, repairing, 8tc, of workhouses. Commissioners are 
 entitled to attend local boards and vestries, but not to order the building or hiring of work- 
 houses, except under limitations. 
 
 XXII. Prohibited from making additions or alterations to the rules contained in the 
 schedule to 22 Geo. III. c. 83, or in any other act, until coniirmed by commissioners. 
 
 XXIII. Commissioners are empowered to order workhouses to be built, hired, altered, 
 or enlarged, with consent of a majority of the rate payers and owners of property who are 
 entitled to vote in any parish. 
 
 XXIV. For the repayment of money borrowed for the purpose of building workhouses, 
 the overseers are empowered to charge the future poor rates of the parish with the amount, 
 provided it does not exceed one year's amount of poor rates. 
 
 XXV. The commissioners are empowered to order workhouses to be altered or enlarged 
 wiUiout the consent of the rate payers. The overseers are required to assess, raise, and levy, 
 the necessary money, provided the principal sum does not exceed fifty pounds. 
 
 XXVI. Commissioners are empowered to unite parishes; but, notwithstanding, each 
 parish to be chargeable for the expense of its own poor. 
 
 XXVII. Under this union, any two justices may order out-door relief to aged and infirm 
 persons wholly unable to work. 
 
 XXVIII. When an union of parishes is proposed, commissioners are to inquire the ex- 
 pense of poor belonging to each parish for the three years preceding. The several parishes 
 included in such union shall, from the time of the union, contribute to a common fund for 
 purchasing, hiring, providing, altering, or enlarging, any workhouse, &c., for the relief of 
 the poor of such parishes. 
 
 XXIX. Commissioners are to make inquiry of the visitors, directors, &c., of such unions 
 as had been effected under the 22 Geo. III. c. 83, whether the poor have been relieved in 
 or out of the union, and how the expense has been paid. 
 
 XXX. The averages to be taken in the mean time from the parliamentary returns of the 
 actual expense of the poor of each parish. 
 
 XXXI. Repeals part of the 22 Geo. III. c. 83, s. 5. and 56 Geo. III. c. 129, part of 
 s. 1, and of 22 Geo. III. c. 83, s. 29. 
 
 XXXII. Commissioners have power to dissolve, add to, or take from, any union; to make 
 such rules as may be adapted to such altered state ; provided the rights and interests of pa- 
 rishes, and claims on these, be ascertained and secured. No such dissolutions or alterations 
 of parishes shall prejudice, vary, or affect the rights or interests of third parties; nor shall 
 they take place unless a majority of two-thirds of the guardians of such union shall concur. 
 
 XXXIII. For the purpose of settlement, such parishes constituting an union shall be 
 considered as one parish. 
 
 XXXIV. For tlie purpose of rating, an union shall be considered as one parish, provided 
 the guardians agree and the commissioners consent. Such agreement and consent to be 
 lodged with the clerk of the peace. 
 
764 POOR LAWS. 
 
 XXXV. The guardians shall ascertain and assess the value of the rateable property in 
 such unions. Rates grounded on such assessment are to be allowed as poor rates. 
 
 XXXVI. The expenditure for the poor of such unions to be in common. 
 
 XXXVII. No union shall be formed without the previous consent of the commissioners, 
 testified under their hand and seal. 
 
 XXXVIII. In every union, a board of guardians shall be constituted and chosen, by 
 whom the workhouse shall be governed, and the relief of the poor administered. The guar- 
 dians shall be elected by the rate payers and owners of property in the united parishes. 
 
 XXXIX. The regulation is similar for single parishes. 
 
 XL. Owners as well as occupiers are entitled to vote at elections of guardians. Votes are 
 to be taken in writing. Votes may be taken by proxy. No rate payer is entitled to vote 
 unless he has paid rates for one year. 
 
 XLI. Elections of guardians, visitors, and other officers, under the act 22 Geo. III. 
 c. 83, or any local act, are to be made according to the provisions of this act. 
 
 XLII. The commissioners may make rules and regulations for any present or future 
 workhouses. They may vary by-laws already in force or to be hereafter made. Rules which 
 aft'ect more than one union are to be considered as general rules. 
 
 XLIII. Justices are empowered to see by-laws enforced, and to visit workhouses, in pur- 
 suance of the act 30 Geo. III. c. 49. But where the commissioners' rules are not in force, 
 justices, parish clergymen, &c., are not restrained from visiting, examining, and certifying 
 the state of the poor therein. 
 
 XLIV. Buildings taken for workhouses are to be within the jurisdiction of the borough, 
 &c., to which they belong, although the parish may not be within the jurisdiction of the 
 borough. 
 
 XLV. No lunatic, insane person, or dangerous idiot, is to be detained in ar.y workhouse 
 more than fourteen days. 
 
 XLVI. Commissioners may direct overseers and guardians to appoint paid officers for 
 parishes or unions. They may fix their duties, mode of appointment, dismissal, the security 
 required, and regulate their salaries. 
 
 XLVI I. Overseers are directed to pass quarterly accounts. Balances maybe recovered 
 in the same maimer as penalties and forfeitures. But no such proceeding shall exonerate 
 or discharge the liability of the surety. 
 
 XLVIII. Masters of workhouses and parish officers are placed under the orders of the 
 board of guardians, and are removable by them. 
 
 XLIX. No contract shall be valid unless it be conformable to the rules laid down by 
 the commissioners. 
 
 L. Repeals the 45 Geo. III. c. 54, respecting contracts. 
 
 LI. The penalty imposed by 53 Geo. III. c. 177, on persons having the management of 
 the poor being concerned in any contract, is extended to persons appointed under this act. 
 
 LII. Commissioners are to regulate the relief to able-bodied paupers and their families 
 out of the workhouse. Whatever relief overseers or guardians may give contrarj to such 
 orders is declared to be unlawful and invalid, and shall be disallowed. Under special cir- 
 cumstances, guardians may delay the operation, and report to the commissionei-s. If the 
 commissioners disapprove of delay, they may fix a day from which all such relief shaU be 
 disallowed. In cases of emergency, guardians may grant relief in food, temporary lodging, 
 or medicine, but must report to the commissioners within fifteen days, when such relief 
 shall be lawful. 
 
 LIII. Repeals 36 Geo. III. c. 23. 55 Geo. III. c. 137, s. 3 and 4>, and 69 Geo. III. c. 12, 
 s. 2 and 5. 
 
 LIV. The ordering, giving, and directing of all relief to the poor of any parish shall be 
 under the government and control of any guardians of the poor. Any justice may give order 
 for medical relief in dangerous illness. 
 
 L V. Masters of workhouses and overseers shall keep a register of the name of every poor 
 person in the receipt of relief out of the workhouse. 
 
 L VI. All relief given to the wife, or children under the age of sixteen, shall be considered 
 
POOR LAWS. 
 
 765 
 
 as given to the husband. All relief given to children under sixteen of any widow shall be 
 considered as given to the widow. 
 
 LVII. Every man who shall marry a woman, having a child or children before mar- 
 riage, whether such children be legitimate or otherwise, shall be liable to maintain them as 
 part of his family. 
 
 LVIII. Such relief as the commissioners may direct to be given to any poor person above 
 the age of twenty-one, or to his wife, or to any part of his family under the age of sixteen, 
 they may direct to be considered as a loan. 
 
 LIX. Justices are empowered to summon any labourer, and to attach his wages in the 
 hand of his employer for the recovery of such loans. Any master or employer neglecting 
 or refusing to pay the guardian the balance of wages, justices may enforce such employer, 
 by penalties. 
 
 LX. Repeals so much of the 43 Geo. III. c. 47, as requires relief to be gixen to wives 
 and families of substitutes, hired men, or volunteers of militia. 
 
 LXI. Justices are required and empowered to certify that the commissioners' rules have 
 been complied with in binding poor children apprentices. 
 
 LXII. Owners of property and rate payers are empowered to raise money on security of 
 rates, for the purposes of defraying the expenses of emigration. 
 
 LXI 1 1. The commissioners are empowered to make advances of money from exchequer 
 bills to guardians, for purchasing, building, altering, or enlarging, any workhouses, or for 
 purchasing land whereon to build the same, upon the security of the poor rates. 
 
 LXI V. No settlement shall hereafter be acquired by hiring and service, or by residence 
 under the same, or by serving an office. 
 
 LXV. No person, under any contract of hiring and service not completed at the time of 
 the passing of this act, shall acquire or be deemed to have acquired any settlement by reason 
 of such hiring and service, or of any residence under the same. 
 
 LXVI. No settlement shall be acquired or completed by occupying a tenement, unless 
 the person occupying the same shall have been assessed to the poor's rate, and shall have 
 paid the same for one year. 
 
 LXVI I. No settlement shall be acquired by being apprenticed in the sea service, or to 
 a householder exercising the trade of the seas as a fisherman or otherwise, nor by any per- 
 son now being such an apprentice in respect to such an apprenticeship. 
 
 LXVIII. No person shall retain any settlement, gained by virtue of any possession of any 
 estate or interest in any parish, for any longer time than such person shall inhabit, within 
 ten miles thereof. In case such person shall cease to inhabit within such distance, and be- 
 come chargeable, he shall be removed to the parish wherein he may have previously been 
 legally settled. 
 
 LXIX. Repeals so much of any act of parliament which enables any single woman to 
 charge any person with having gotten her with any child of which she shall be then preg- 
 nant, or as renders any such person liable to be apprehended or committed, or required to 
 give security, on any such charge, or as enables the mother of any bastard children to charge 
 or affiliate any such child or children on any person as the reputed or putative father thereof, 
 or as enables any guardian to charge or make complaint against any putative father, and to 
 require him to be charged with or contribute to the expenses attending the birth, sustenta- 
 tion, or maintenance, of any such child or children. Also repeals so much of any act as 
 renders an unmarried woman with child liable, as such, to be summoned, examined, or re- 
 moved, or as renders the mother of any bastard liable, as such, to be imprisoned or otherwise 
 punished, so far as respects any child which shall be likely to be bom a bastard. 
 
 LXX. Securities and recognizances to indemnify any parish for child or children likely 
 to be bom bastards, whereof any single woman shall be pregnant at the time of passing this 
 act, are declared to be null and void. Persons in custody for not giving security, &c., to be 
 discharged. 
 
 LXXI. Every child which shall be born a bastard after the passing of this act, shall have 
 and follow the settlement of the mother until such child shall attain the age of sixteen, or 
 shall acquire a settlement in its own right. Such mother, so long as she shall be unmarried 
 
766 POOR LAWS. 
 
 or a widow, shall be bound to maintain such child, as a part of her family, until such child 
 shall attain the age of sixteen. Ail relief granted to such child while under the age of six- 
 teen shall be considered as granted to such mother, provided that such liability of such mother 
 shall cease on the marriage of such child, if a female. 
 
 LXXIl. When the mother of a bastard child is really unable to maintain it, the guar- 
 dians of the parish or union may apply to the general quarter sessions, for an order on the 
 putative father, to reimburse the parish or union for its support. No money, however, is 
 to be applied to the relief of the mother. 
 
 LXXIII. Fourteen days' notice must be given to the putative father. If the court grants 
 the application, the costs may be calculated from the birth of the bastard cliild, if within six 
 months. 
 
 LXXI V. If the putative father or his attorney does not appear, the court may give judg- 
 ment nevertheless. 
 
 LXXV. If suspicion arise that the putative father intends to abscond, he may be required 
 to enter into a recognizance for his appearance. 
 
 LXXVI. When the putative father falls into arrear, he may be proceeded against by 
 distress or attachment of wages. 
 
 LXXV 1 1. Persons employed in the administration of the poor laws are not to funiish 
 goods or provisions for their own profit in parochial relief, under a penalty of five pounds. 
 
 LXXVI II. Sums payable by father, grandfather, grandmother, child or children, of any 
 poor person, for the relief of poor persons, shall be recoverable in like mamier as penaltiea 
 and forfeitures are recoverable under the provisions of this act. 
 
 LXXIX. No poor person shall be removed or removable till after notice of his being 
 chargeable has been sent to the parish to which the order of removal is directed. If the 
 parish agree to receive such poor person, it may then be lawful to remove him; but not in 
 case he should appeal. 
 
 LXXX. In case of appeal, the overseers are entitled to have free access to the person to 
 be removed, for the purpose of examining him touching his settlement. 
 
 LXXXI. Grounds of appeal must be stated in the notice, and sent to the respondent 
 parish, and the appellant parish shall not be heard in support of such appeal, unless the 
 notice is regularly given. 
 
 LXXXI I. The parish which loses the appeal to pay such costs as the court shall direct. 
 
 LXXXI 1 1. The party making frivolous and vexatious grounds of appeal, shall pay the 
 whole or part of the costs incurred by the other party in disputing them. 
 
 LXXXI V. The parish to which the poor person shall be finally adjudged to belong, shall 
 be liable to pay the cost and expense of their relief and maintenance. 
 
 LXXXV. The commissioners may require trustees of rates on property for the relief of 
 the poor, to produce true and detailed accounts in writing ; which accounts, or a copy, shall 
 be open for the inspection of the owners of property and rate payers. 
 
 LXXX VI. Advertisements in the gazette and local newspapers are not liable to stamp duty. 
 
 LXXXVII. Bonds and securities made pursuant to the act 22 Geo. III. c. b3, and 
 assignments thereof, are exempted from stamp duty. 
 
 LXXXVIII. All letters to and from the board of commissioners to be free of post-ige, 
 if marked on the corners with the words, " Office of poor law commissioners pursuant to act 
 of parliament, passed in the fifth year of the reign of his majesty king William the fourth." 
 Letters transmitted under these covers, which do not relate solely to the business of this act, 
 to be transmitted to the post office to be charged with postage. 
 
 LXXXIX. All payments, charges, and allowances, made by the overseers or guardians 
 contrary to the provisions of this act, or at variance with any of its rules, orders, or regula- 
 tions, shall be illegal. 
 
 XC, A summons left at the usual or last known place of abode shall be sufficient. 
 
 XCI. Repeals so much of the act 6 Geo. IV. c. 80, as relates to the prohibition of spiri- 
 tuous liquors in workhouses, 
 
 XCIl. Persons introducing spirituous liquors into workhouses are liable to a penalty not 
 exceeding ten pounds. 
 
POOR LAWS. 767 
 
 XCIII. Masters of workhouses allowing the use of spirituous liquors, inflicting corporeal 
 punishment, or otherwise ill using any adult person, or guilty of any other misbehaviour or 
 misconduct themselves towards any poor person in the workhouse, on conviction, shall pay 
 any sum not exceeding twenty pounds, as the justices shall direct. And justices may order 
 salaries, &c., to be stopped till such penalties are paid. 
 
 XCIV. The two preceding clauses are to be hung up in a conspicuous place in each 
 workhouse, andrenewed when soiled. 
 
 XCV, Overseers or their assistants disobeying guardians are liable to a penalty not ex- 
 ceeding five pounds. 
 
 XC VI. No overseer, &c., shall be liable to any penalty or prosecution for disobeying illegal 
 orders. 
 
 XCVII. Overseers, &c., purloining, embezzling, ■wilfully wasting, or misapplying, any 
 of the monies, goods, or chattels, belonging to any parish or union, shall be liable to a penalty 
 not exceeding twenty pounds, and forfeit treble the amount so embezzled, &c. 
 
 XC VIII. Every person wilfully disobeying the rules, orders, and regulations, or are guilty 
 of contempt of the board of commissioners, shall forfeit and pay a sum not exceeding five 
 pounds for the first offence, any sum not exceeding twenty nor less than five pounds for the 
 second offence, and for the third and every subsequent offence he shall be indicted for a mis- 
 demeanour, and, on conviction, pay not less than twenty pounds, and suffer imprisonment 
 with or without hard labour 
 
 XCIX. All fines and forfeitures are leviable by distress and sale, and when recovered 
 shall be applied for the use of the parish or union where the offences were committed. 
 
 C. Owners and rate payers are declared to be competent witnesses in proceedings for the 
 recovery of penalties, Sjc. 
 
 CI. Justices may in all cases proceed by summons for the recovery of penalties. 
 
 CII. Want of form in the proceedings shall not be deemed unlawful in recovering damages 
 by distress, nor shall the party distraining be deemed a trespasser ab initio on account of any 
 irregularity which shall happen in making the distress ; but the person aggrieved may 
 recover full satisfaction in an action on the case. But no plaintiff shall recover for irregu- 
 larity, if tender of amends be made. 
 
 CI 11. Aggrieved parties may appeal to the quarter sessions against any order or convic- 
 tion of parties, within four calendar months after cause of complaint. 
 
 CIV. No action or suit shall be commenced against any commissioner, &c., until twenty- 
 one da) s' notice has been given in writing to the party to be prosecuted. In such action, 
 the defendant may plead the genei'al issue. 
 
 CV. The commissioners' rules, &c., may be removed by certiorari to the court of King's 
 Bench, but they shall continue in force until they are declared to be illegal. 
 
 CVI. Notice, in writing, must be left at the office of the commissioners, ten days before 
 application be made for a writ of certiorari. 
 
 CVI I. Previous to issuing a writ of certiorari, the parties applying for it must enter into 
 recognizance with sufficient sureties in the sum of fifty pounds. If the rule, &c., be declared 
 legal, the commissioners shall be entitled to costs. 
 
 CVIII. If rules are quashed, the same shall be notified to parishes or unions to which 
 such rules have been directed. 
 
 CIX. This clause relates to the interpretation of the words: "auditor," " general rule," 
 *' guardian," "justiceor justices of the peace," "oath," "orders and regulations," "officer," 
 " overseer," " owner," " rack rent," " parish," *' person," " poor," " poor laws " or " laws 
 for the relief of the poor," "poor rate," "general quarter sessions," "union," "united 
 workhouse," " vestry," "workhouse." In describing any person or party, matter or thing, 
 whenever the word importing the singular number, or the masculine gender, only is used 
 the same shall be understood to include, and shall be applied to several persons or parties, 
 and females as well as males, and several matters or things, respectively, unless there be 
 something in the subject or context repugnant to such construction. 
 
 ex. Provides for the alteration, amendment, or repeal, of this act in the session wherein 
 it was made. 
 
768 TITHES. 
 
 TITHES. 
 
 On this subject we will be extremely brief. From the beginning of the 
 world, God himself consecrated a seventh of our timei for the purposes of 
 rest and worship. For the support of his worship, it was also necessary 
 to consecrate a portion of our worldly substance. In the first act of public 
 worship which we find recorded in holy scripture, Cain and Abel each 
 brought a portion of their wealth, as an oflTering to God. Our time is 
 uniformly the same in all nations and climates, and therefore the law which 
 claims a seventh is clearly laid down : JRememher that thou keep holy 
 the Sdbhath day. But our substance varies, according to the circum- 
 stances of time and place, of wealth and ability, of soil and climate, of 
 manners and customs ; and all these, again, are subject to innumerable 
 changes and revolutions. All these circumstances cause a vast variety in 
 proportioning the part to be separated to the support of God's worship ; 
 and therefore God, of his infinite mercy and goodness, charged mankind 
 with the general duty only of setting apart for his worship such a propor- 
 tion of our substance as may be sufficient for its support. Abraham, on his 
 return from the conquest of the four kings, paid a tithe of all that he had 
 to Melchizedek, the priest of the Most High God. When Jacob avouched 
 the Lord Jehovah to be his God at Bethel, he bound himself to pay tithes' 
 " And this stone which I have set for a pillar shall be God's house, and of 
 all that thou shalt give me / will surely give the tenth unto thee ;'''* 
 which shows that the worship of God, and the payment of tithes for the 
 support of that worship, invariably went together. Under the law, tithes 
 were part of the offerings unto the Lord, and they are called his inlieri- 
 tance : " But the tithes of the children of Israel, which they offer as an 
 heave- offering unto the Lord ^ I have given to the Levites to inherit; 
 therefore I have said unto them, among the children of Israel they shall 
 have no inheritance."-]- " The priests, the Levites, and all the tribe of 
 Levi, shall have no part nor inheritance with Israel ; they shall eat the 
 offerings ("tithes) of the Lord made by fire, a?id his inheritance. '^X Among 
 the heathen, the same thing was done for the support of their idol wor- 
 shippers. Mr Selden, a great lawyer in the time of Oliver Cromwell, and 
 a decided enemy of the church, shows that the Syrians, Phenicians, Ara- 
 bians, Ethiopians, Greeks, Romans, and almost all other nations, paid tithes 
 and offerings to the priests of their false deities. This knowledge they 
 could only have acquired by traditionary accounts, floating down the 
 stream of time, from the first institution of revealed religion in our great 
 
 * Gen. xxviii. 22. f Num. xviii. 24. | Deut xviii. 1. 
 
TITHES. "^^^ 
 
 ancestor. And therefore we must conclude, that the payment of sonne 
 portion of our substance was appointed of God. Whatever we possess is 
 his gift. God reserved tlie tenth of our substance as a tribute to liiuiself, 
 and an acknowledgment of his sovereignty and dominion. The payment 
 of tithes is part of the worship of God, and as we cannot pay them imme- 
 diately to God, he has ordained tijat we shall pay them mediately to his 
 ministers, who are his ambassadors and earthly representatives. As before 
 mentioned, he has reserved a seventh of our time^ tliat is Sunday, for his 
 worship, and a portion of our substance for the maintenance of those who 
 " serve at the altar." And therefore God called the tithes, wliich the eleven 
 tribes paid to the tribe of Levi, his inheritance. The tribe of Levi 
 had no other inheritance or property wliatever but the tithes. When the 
 Jews began to murmur against the payment of tithes, and to withhold 
 them, he sent the prophet Malachi to tell them that tliey had rolled him: 
 '' Will a man rob God ? yet ye have robbed me. Ye say, wherein have 
 ye robbed me ? in tithes and offerings. Ye are accursed with a 
 curse, /br?/5 have robbed me, even this whole nation."* 
 
 In the times of the apostles, and during the first ages of Christianity, 
 many that were possessors of lands and houses sold them, and laid the 
 price at the apostles' feet. And to the end of the fourth century, the 
 devotion of the people was so great that their offerings and oblations con- 
 siderably exceeded what the tenth would have been, had they paid a regular 
 tithe. The general duty of providing a maintenance for the christian 
 ministry, is most strictly enjoined in the New Testament. When Christ 
 sent forth his apostles and disciples to preach the gospel, he commanded 
 them to take " no money in their purses, nor scrip," that is, provision, 
 " neither two coats, nor shoes, nor yet staves, for the workman is worthy 
 of his meat."f And to these repeated commands of our Saviour, St Paul 
 adds both reasoning and command. " For it is written in the law of 
 Moses, Thou shalt not muzzle the ox that treadeth out the corn. Dotli 
 God take care for oxen ? or saith he it altogether for our (the ministry's) 
 sakes? For our sakes, no doubt, this is written; that he that ploweth 
 should plow in hope, and that he that thrasheth in hope should be partaker 
 of his hope. If -rtQ have sown unto you spiritual things, is it a great 
 thing if we (the ministers) shall reap your carnal things? If others (the 
 heathen priests) be partakers of this power over you, are not we rather ? 
 Do ye not know, that they which minister about holy things, live of the 
 things of the temple, and they that wait at the altar are partakers with the 
 altar ? Even so hath the Lord ordained, that they which preach tlie 
 gospel, should live of the gospel.":j: In these commands, tithes are not 
 
 * M.il. iii. 8, 9. f Matt. x. 10. X 1 Cor. ix. 9—11. 
 
 5 E 
 
770 TITHES. 
 
 mentioned; only the general duty of maintaining the ministers of religion. 
 The evangelical or gospel ministry is after the order of Melchizedek. They 
 claim tithes, or a maintenance in some shape, as their right, and as being 
 due to that order which is a superior and a more exalted priesthood than 
 that of Levi. Our Saviour was of the tribe of Judah, and therefore did 
 not belong to the order of the Levitical priesthood. Of Judah, " Moses 
 spake nothing concerning the priesthood."* But Christ was a priest after 
 the order of Melchizedek, to whom faithful Abraham paid tithes long before 
 Levi was born. ''And as I may so say, Levi also, who received tithes, 
 payed tithes in Abraham. For he was yet in the loins of his father when 
 Melchizedek met him."f The ministers of the gospel have therefore a divine 
 right to a maintenance. To the Jews a tenth part was set apart by God 
 himself, as his inheritance, and therefore the Jewish church possessed 
 tithes by divine right. The christian ministry have an equally divine right 
 to a sufficient maintenance to support them in such a manner as may best 
 operate to the glory of God and the salvation of men. Although a tenth 
 is not specified in the New Testament, yet, as the christian church followed 
 the Jewish in its order, all christian nations have followed it also in appro- 
 priating a tenth of the produce of the soil as God's inheritance. But it 
 does not signify what name we give it, or in what shape we pay it, it still 
 remains God's inheritance. It is all one whether it is a tithe taken in kind, 
 or a stipend paid in money, or an offering at the church doors, or in seat 
 rents. In all these cases the object is the same — the glory of God and the 
 salvation of men. We are thereby paying tribute to God, " according as 
 we are disposed in our heart, not grudgingly or of necessity, for God 
 loveth a cheerful giver." 
 
 Mr Selden himself acknowledges, "that before the end of the fourth 
 century, it became the usual phrase, to offer tithes, because they were 
 paid in the offerings of the faithful, who thought themselves obliged, in 
 the making of these offerings, to give every year unto the churches of 
 which they were members, tithes, or greater parts, of their annual increase, 
 for the support of God's worship in them.":}: Before the end of the fifth 
 century, the only obligation on the people to maintain their offerings were 
 the admonitions of conscience. After the inroads of the barbarians on 
 the Roman empire, this part of the worship of God was much neglected. 
 And therefore synods and general councils resorted to the spiritual sword 
 to enforce the payment. In the year 585, the council of Alascon made a 
 solemn decree, enjoining the whole kingdom of France " to pay the tithes 
 of their fruits to holy places, under the anathema, that "if any one shall 
 be contumacious to these our most wholesome orders, let him be for ever 
 
 * Heb. vii. U. f Heb. vii. 9, 10. t Hist, of Tithes, c 5„ 
 
TITHES. 771 
 
 separated from the communion of the church." A similar canon was made 
 at Seville, in the year 590, for the kingdom of Spain, enjoining the pay- 
 ment of " tithes of all cattle, fruits, and labour of men;" and decreed that 
 whoever subtracted the tithes should be accounted " a robber of God, and 
 a thief, and that the curse which God inflicted on Cain, who did not divide 
 aright unto God his portion, be heaped upon him." To the same purpose, 
 the council of Friuli, in 791, ordained tithes to be paid in Italy. About 
 the middle of the eighth century, Egbert, archbishop of York, made a 
 canon for his province,* ordaining the payment of tithes, and commanding 
 his clergy to teach the people how to perform that act of worship. In the 
 year 784^ a general council of the whole kingdom, held at Calcleuth, or- 
 dained the payment of tithes. The 17th canon of which says : " Where- 
 fore, with earnest beseeching we enjoin, that all do carefully endeavour to 
 pay tithes of all that they do possess, (because they are the peculiar pro- 
 perty of the Lord our God,) and maintain themselves and give alms of the 
 other nine parts."f In the year 794, Oifa, king of Mercia, gave the tithes 
 of all his kingdom to the church. This establishment did not extend 
 beyond the kingdom of Mercia. But Ethelwolf, who succeeded Egbert, 
 under whom tiie heptarchy was united into one kingdom, enlarged Offa's 
 gift to the whole realm of England. On this gift the civil right of tithes 
 in England is founded. Ethelwolf held a parliament at Wilton, in the year 
 854, at the feast of Easter, and, with the full consent of his parliament, 
 gave for ever to God and his church the tithe of all goods, and the tenth 
 of all the lands of the kingdom, free from all secular service, taxations, 
 and impositions, whatsoever. This being the grand civil charter by which 
 the church in England holds the tithes, I here give it at length as recorded 
 by Malhew Paris : 
 
 " I, Ethelwolf, by the grace of God, king of the West Saxons, in the holy and most so- 
 lemn feast of Easter, for the health of my soul, and the prosperity of my kingdom, and all 
 the people by Almighty God committed to my charge, have, with my bishops, earls and all 
 other my nobles, brought to pass this wholesome counsel, that I have not only given the 
 tenth parts of the land through my kingdom to the holy churches, but also have granted to 
 our ministers placed in them to enjoy them in perpetual liberty, so that this grant shall 
 remain firm and immutable, freed from all royal services, and from all other secular service 
 whatsoever, And it hath pleased Elstan, bishop of Sherburn, and Swithen, bishop of Win- 
 chester, and the rest of the chief men, to give their consent hereto. This we have done for 
 the honour of our Lord Jesus Christ, and of the blessed Virgin Mary, and of all the saints, 
 and for the reverence which we bear to the feast of Easter, that almighty God may vouchsafe 
 to be propitious to us, and to our posterity. This charter was written in the year of the 
 inairnation of our Lord Jesus Christ, 854, in the second indiction, on Easter day, in our 
 palace called Wilton, Whosoever shall augment this our donation, may God augment to him 
 his prosperous days ; but if any one shall presume to diminish or change it, let him know 
 
 * The province of York at that time extended from the river Humber to the firths of 
 Forth and Clj de. f Cited by Seldon and Prideaux. 
 
772 TITHES. 
 
 that he must give an account hereof before the judgment seat of Christ, unless in the interim 
 he doth make amends by giving satisfaction for the same. 
 
 + I, Ethelwolf, the liing, + I, Elstan, bisliop, + I, Swithin, bishop, + I, Wulf- 
 LOK, abbot, 4. I, Werford, abbot, -f- 1, Etherid, and I, Alfred, the king's sons, have 
 given our consent hereto." 
 
 This charter was tendered by the king, on his knees at the altar, in the 
 presence and with the consent of the estates of the kingdom, under heavy 
 curses and imprecations on himself and any of his successors who sliould 
 either alienate or encroach on this inheritance given to God. Many acts 
 of subsequent parliaments have confirmed and guaranteed this charter. 
 At that period, the sole right of property in all the lands in the kingdom 
 was vested in the sovereign; so that Ethelwolf gave what was, strictly and 
 legally speaking, his o\%n property to the church for ever. All the lands 
 in the kingdom came into the possession of tlieir present owners, burdened 
 by the payment of tithes. The tenth, being unalienable, cannot be sold; 
 but the other nine parts may change hands as often as necessary. In the 
 purchase of land, the buyer only bargains for nine parts ; tl'.e tenth he 
 does not purchase nor pay for. It remains with its never-ceasing pro- 
 prietor — the church. It is therefore evident, that the church has an 
 unalienable right to tithes. Tliey are her estate, guaranteed by the most 
 solemn compacts of princes and parliaments. No iran in the kingdom can 
 show title deeds so old as Ethelwolf, for his nine parts of the land. But 
 the foregoing is the church's title deeds for her tenth. The revenues of 
 the Church of England have been much exaggerated. They are far from 
 being immoderate, even were they in all cases fully paid. But the clergy 
 seldom, if ever, obtain the full amount of their due. In almost every case 
 they are obliged to sacrifice a great portion of their just rights for the 
 preservation of peace and charity. In England, the clergy are subject to 
 the same imposts and public burdens as the laity. They pay the poor rates 
 the same as the laity. The poor rates are the birthright— the freehold 
 estate of the poor. The tithes are the freehold of the clergy, and open to 
 be acquired by all ranks in the kingdom. The poor and the clergy are 
 both merely liferenters : yet the title of the poor reaches no farther back 
 than the 45th of Elizabeth, whereas that of the clergy to the reign of 
 Ethelwolf, in the year 854. 
 
 By Blackstone, tithes are called, " a species of incorporeal heredita- 
 ments." They are defined to be a tenth part of the increase yearly arising 
 and renewing from the profits of lands, the stock upon lands, and the per- 
 sonal industry of the inhabitants. The first species being usually called 
 prcBdml. The praedial tithes consist of corn, hay, grass, hops, fruit, herbs, 
 and wood, including tithe for the agistment of cattle. The second species 
 is called mixed. It consists of wool, calves, lambs, pigs, chickens, milk, 
 
TITHES. 773 
 
 eggs, and other natural products, but matured and preserved in part by 
 the care of man. The third species of tithe is usually called personal. 
 li is such as springs from manual occupations, as trade, fisheries, and the 
 like. The first two species must be paid in gross; of the third, only the 
 tenth part of the clear or nett gains or profits are due. Tithes are divided 
 into great and small. Great tithes are those of corn, peas, beans, hay, 
 wood, &c. Small tithes comprehend all the other species of praedial tithes, 
 together with those called personal or mixed. The distinction of great 
 and small tithes depends on the nature and quality of the thing, and not 
 upon the place or mode of cultivation, or the quantity produced, or the 
 use to which it is applied. The only criterion for determining what are 
 great, or small, or vicarial tithes, is by endowment or prescription. When 
 endowment is pleaded, it must be produced. Prescription is founded on a 
 supposed endowment, which has been lost. In some parishes, grass, hayj 
 and wood, are great tithes, whereas in others they are small tithes, according 
 to prescription, which has been founded on an endowment, or such usage 
 as presupposes an endowment. 
 
 Great tithes are commonly cdXXe^ parsonage tithes, being payable to the 
 parson or rector. Small tithes, being in general payable to the vicar, are 
 usually called vicarial tithes. Prima facie, the rector is entitled to all 
 the tithes of the parish, and nothing can he presumed in the vicar's favour 
 without endowment or prescription. As a general rule, tithe ought to 
 be paid as soon as the tenth part can be severed from the whole, unless 
 there be any custom to the contrary, as often as a renovation or fresh crop 
 is severed from the same land in the course of the year. The titheholder, 
 or his deputy, has a right to see that the same is fairly set forth from the 
 other nine parts, before any particle of those nine parts is removed from 
 the field. In general, tithes are to be paid for anything that yields an annual 
 increase, as corn, hay, fruit, cattle, poultry, and the like; but not for any- 
 thing that is of the substance of the earth, or is not of annual increase. 
 Under this last head is comprehended stone, lime, coal, ores, and the like. 
 No tithe is to be paid for creatures that are of a wild nature, as deer, 
 hawks, &c., whose increase is not natural, but casual; but tithes may be 
 paid for deer and rabbits, if such has been the custom. 
 
 There are two methods by which lands and their occupiers may be ex- 
 empted from the payment of tithes : first, by real composition ; secondly, 
 by custom or prescription. 
 
 I. A real composition is when an agreement is made between the 
 owner of the lands and the parson or vicar, with the consent of the bishop 
 or patron, that such lands for the future shall be discharged from pay- 
 ment of tithes, by reason of some land, or other real recompense, given 
 to the parson in lieu and satisfaction thereof. These real compositions 
 
774 TITHES. 
 
 have ever been held and allowed in England to be a good discharge of tlie 
 payment of tithes. Hence have arisen all such compositions as exist at this 
 time by form of the common law. By this means the possessions of the 
 church were daily diminished. To obviate this, the disabling statute was 
 passed in the reign of Elizabeth,* which prevents, among other spiritual 
 persons, all parsons and vicars from making any conveyances of the estates 
 of their churches for more than three lives, or twenty-one years. By virtue 
 of this statute therefore, no real composition, made since the 13th of queen 
 Elizabeth, is good for any longer period than three lives, or twenty-one 
 years, even although it should be made with the consent of the patron and 
 ordinary. This statute has effectually demolished this kind of traffic; 
 such compositions being now rarely heard of, unless by authority of par- 
 liament. A composition established even by act of parliament, if made 
 since the disabling statute of Elizabeth, and confirmed by a decree of a 
 court of equity, though good for the life of the incumbent, is not binding 
 on his successor. If the successor continues to receive the next payment 
 due after the death of his predecessor, he is accountable to the executors 
 only for such portion of it as the value of the tithes, if paid in kind, ac- 
 cruing due between the last composition received by the late incumbent 
 and his death, would have amounted to, and not pro rata according to the 
 time which had run before his death from the last payment. Neither is 
 the succeeding incumbent bound by a lease made conformable and prior to 
 the disabling statute, but such lease is entirely void at the decease of the 
 parson or vicar who made it. 
 
 II. A discharge hy custom or prescription is, when time out of mind, 
 such persons or such lands have been either partially or totally discharged 
 from the payment of tithes. This immemorial usage is binding upon 
 parties. It is in its nature an evidence of universal consent and acquies- 
 cence, and with reason supposes a red composition to have been formerly 
 made. Tliis custom is either de modo decimandi, or else de non deci- 
 mando. A modus decimandi, called shortly a inodus, is a composition 
 for tithes in kind within a certain district. By this modus a layman is 
 discharged from rendering his tithes, on his paying to the parson, in lieu 
 thereof, what the local custom of that place directs. This is sometimes a 
 pecuniary compensation, as twopence an acre for the tithe of land. Some- 
 times it is a compensation in work and labour, as that the parson shall 
 only have the twelfth cock of hay, and not the tenth, in consideration of 
 the owner's making it for him. Sometimes, in lieu of a large quantity of 
 crude and imperfect tithe, the parson shall have a less quantity, when ar- 
 rived to a greater maturity, as a couple of fowls in lieu of tithe eggs, and the 
 
 * 13 Eliz. c. 10. 
 
TITHES. 
 
 775 
 
 like. A prescription de non decimando is a claim to be entirely discharged 
 of tithes, and to pay no compensation in lieu of them. Thus the king, 
 by his prerogative, is discharged from all tithes. So a vicar shall pay no 
 tithes io the rector, nor the rector to the vicar. The manner or form of 
 setting out for payment of tithes, is generally governed by the custom of 
 the place. In a special case it was held, that a farmer may cut down a 
 field in portions most convenient for himself, provided it be not done 
 vexatiously, and with a design to trouble tlie clergyman. He must not, 
 however, proceed to carry away such separate cuttings before he has set out 
 the tithe of all the cuttings. It is a general rule, that a farmer may not 
 at his pleasure tithe, and carry part of a field of corn before the whole has 
 been tithed, and then proceed to another field, so as to oblige tlie parson 
 to come to the field at another time to take his tithe. But still there is 
 no rule of law which obliges a farmer (all fraud and vexation apart) to 
 tithe and carry the whole of that part of the field lying in one parish before 
 tithing any part of the same field in another parish ; and this without 
 previous notice of his intention to carry such part. The general rule, that 
 the farmer must not carry part of the crop of a field of corn before the 
 whole has been tithed, must be understood with all necessary exceptions of 
 partial ripeness, and whether the neglect of taking the advantage of which 
 would be prejudicial to the crop. The parson, vicar, improprietor or 
 farmer, cannot come himself and set forth his tithes without the license and 
 consent of the owner. If lie tithe of his own head the corn or hay of any 
 land holden within his parish, and carry it away, he is a trespasser, and an 
 action will lie against him for it. But every person is bound, of common 
 right, to cut down and set out the tithes of his own lands. That it may 
 be done faithfully and without fraud, the laws of the church entitle the 
 parson to have notice given him. It was enacted in the reign of Edward 
 VI., that at all times whensoever, and as often as any praedial tithes shall 
 be due, at the tithing of the same it shall be lawful to any party to whom 
 any of the said tithes ought to be paid, or his deputy or servant, to view 
 and see their said tithes justly and truly set forth and severed from the 
 nine parts. It has been held in law, that the parishioner must have his 
 nine parts a reasonable time in the field for the parson to compare the 
 tithe with them. It has been also held, that if the parisliioner reaps one 
 land, and in coming back along the same land to reap the next, throws 
 out the tithe of the first, and shocks his nine sheaves, he does not give a 
 suflficient time for the parson to compare. But if, after due notice, the 
 tithe owner does not come in convenient time, it is his own fault, and he 
 will lose the benefit of making the comparison. The care of the tithes, as 
 to waste or spoiling, after severance, rests upon the parson, and not upon 
 the owner or occupier of the land. The parson is by law at his peril to 
 
776 TITHES. 
 
 take notice of the tithes being set out. It has been declared, that although 
 the parishioners ought de jure to reap the corn, yet they are not bound 
 to guard the parson's tithes. After the tithes are set forth, he may, of 
 common right, come himself, or send his servants, and spread abroad, dry, 
 and stack, his corn, hay, or the like, in any convenient place or places 
 upon the ground where the same grew, till it be sufficiently withered and 
 fit to be carried into the barn. But he must not take a longer time for so 
 doing than is " convenient and necessary." By the statute of Edward VI. 
 " It shall be lawful quietly to take and carry the same away. And if any 
 person carry away his corn or hay, or his other prsedial tithes, before the 
 tithe thereof be set forth, or willingly withdraw his tithes of the same, or 
 of such other things whereof prsedial tithes ought to be paid; and if any 
 person do stop or let (hinder) the parson, vicar, proprietor, owner, or 
 other their deputies or farmers, to view, take, and carry away their tithes, 
 as is above said, he shall forfeit double value with costs, to be recovered in 
 the ecclesiastical courts." The parson may carry his tithes from the 
 ground where they grew, either by the common way, or any such way as the 
 owner of the land uses to carry away his nine parts. If, after he has duly 
 set forth his tithes, the owner of the soil will stop up the ways, and not 
 suffer the parson to carry away his tithes, or to spread, dry, and stack 
 them upon the land, this is no good setting forth of his tithes, without 
 fraud, within the statute. In consequence, the parson may have an action 
 upon the said statute, and may recover treble the value ; or he may have 
 an action upon the case for such disturbance; or he may, if he will, break 
 open the gate or fence which hinders him, and carry away his tithes. But 
 in this he must be cautious, that he commit no riot, nor break any gate, 
 rails, locks, or hedges, more than he necessarily must for his passage. When 
 he comes with his carts, wains, or other carriages, to carry away his tithes, 
 he must not suffer his horses or oxen to eat and depasture the grass growing 
 or cut. But if his cattle do in their passage, against the driver's will, here 
 and there snatch some of the grass, this is excusable. If tithes set forth 
 remain too long upon the land, the owner of the soil may distrain them as 
 damage feasant. If he be sued for them in order to justify, he must set 
 forth how long they had remained before he took them. AVhen they shall 
 be said to remain too long is tryable by a jury. An action upon the case 
 will lie against the parson for his negligence in this behalf. No action, 
 however, in such a case will lie, unless the parishioner has duly set forth 
 his tithes, and has also given notice to the parson that they are so set forth. 
 The period of the establishment of tithes, or teinds, in Scotland, is in- 
 volved in some degree of uncertainty. Spottiswood asserts, that Convallus 
 appomted tithes to be paid universally in his reign, which was in the sixth 
 century; while Craig affirms, that teinds were introduced onlv a short time 
 
TITHES. 777 
 
 before the Lateran council, in 1179. The history of Scottish tithes, or 
 teinds, is naturally divided into three periods : I. Preceding the Reforma* 
 tion; II. Between the Reformation and the introduction of valuation and 
 sales; III. The period subsequent to the commencement of valuation and 
 sales. 
 
 I. Personal teinds were unknown in Scotland. Teinds were altogether 
 prcedial^ affecting the fruits of the land, and are either natural or indus- 
 trial. Industrial teinds correspond to the mixed tithes in England. Till 
 the teinds were regulated by the valued rental, there was hardly any tithing 
 of natural fruits. Prsedial tithes, therefore, of industrial fruits, have all 
 along constituted the whole teinds leviable by the church of Scotland. There 
 have been, however, some local and consuetudinary exceptions. They 
 consisted of the tenth of all profit produced by the application of industry 
 to land. Glebes, temple lands, lands belonging to the religious orders, 
 were excepted j and also lands, the proprietors of which have acquired 
 their teinds originally from churchmen. They were leviable without any 
 deduction, i^ropter curam et culturam^ in favour of the possessor. They 
 were of two kinds, parsonage and vicarage. The parsonage teinds were 
 due exclusively to the parson, or others having right to the parochial 
 benefice, and were leviable from corn alone, at the terms of Whitsunday 
 and Michaelmas. Vicarage teinds were paid to the vicar, if originally 
 appointed by the patron ; yet where he was not, they also went to the 
 incumbent, who might make what agreement he pleased with curates or 
 assistants of his own appointment. The vicarage teinds were drawn from 
 all the minor fruits, such as cattle, fowls, eggs, milk, hay, lint, fishings, &c. 
 These were not levied according to a certain fixed rule, as the parsonage 
 teinds were, but according to the usage of every individual benefice or 
 parish. Before the Reformation, the churcli enjoyed tithes or teinds de 
 jure communi, and had besides extensive landed property. But the teinds 
 were by degrees almost entirely carried away from their proper destination : 
 1. by the consecration of tithes to other churches or churchmen uncon- 
 nected with the lands ; 2. by papal exemptions ; 3. by infeudation of tithes 
 to laymen. The useful and laborious parochial clergy were reduced to a 
 state of comparative indigence. It frequently happened that, in the va- 
 cancy of parochial charges, the patrons appropriated great part of its tithes 
 to some favourite monastery. The right of presentation was likewise fre- 
 quently conveyed away to monasteries, making them the perpetual bene- 
 ficiary of the church annexed. To the very, great injury of religion, the 
 pope usurped the patronage of all those parishes where no one else could 
 show a valid right of presentation. He naturally threw as much power 
 into the hands of religious bodies, exempted their land from tithes, and 
 thus directly robbed the parochial clergy of their just rights. Patrons fre- 
 
 5 F 
 
778 TITHES. 
 
 quently made grants of the tithes to needy laymen. The religious houses 
 also sold the tithes to the crown or other laymen. Leases were also granted 
 of the tithes at a low rate, on payment of a fine. Various measures were, 
 at different times, ineffectually adopted to check this systematic spoliation 
 of the parochial clergy. 
 
 II. At the Reformation, the crown became the proprietor of all the 
 church lands, either by resignation or confiscation, especially of those be. 
 longing to the religious houses. On the death or dispersion of the abbols 
 and priors, the crown appointed lay commendators for life. The monas- 
 teries and priories were then turned into temporal lordships. These men 
 were styled '^ Lords of erection," or " Titulars of the tithes," into whose 
 hands the possessions of the church were permanently transferred. At the 
 same time, the crown assumed the place of the pope, and became patron 
 of every regular parochial charge to the patronage of which no subject 
 could show a good title. The lords of the new erection continued to 
 exercise the rights which their predecessors, the abbots, had formerly exer- 
 cised. They presented ministers to parishes, and assigned such stipends as 
 they chose. In 1587, a check was put to the practice of erections, and 
 all church lands were, by act of parliament, unalienably annexed to the 
 crown. The following exceptions were made: 1. the temporal lordships 
 erected by the crown prior to the date of the act; 2. lands made over to 
 hospitals, schools, and universities, and not diverted from their original 
 uses ; 3. benefices which, before the Reformation, had been retained by 
 the original lay patrons; 4. The manses and glebes of the popish church- 
 men which were not annexed, and were reserved for their protestant 
 successors. This did not altogether prevent new erections. On the resto- 
 ration of the bishops, the annexation of their benefices and those of their 
 chapters were rescinded by acts of parliament.* It appears, that after the 
 Reformation the whole teinds of the country belonged either to the crown^ 
 to the lords of erection, called titulars y to the patrons^ or to the feuars 
 from the church. The whole rights of the church were thus transferred to, 
 and vested in, these several parties. 
 
 III. The teind w^as originally made by drawing it. That is, the bene- 
 ficiary carried off every tenth sheaf from the ground. It became a frequent 
 custom to commute the tithes, either for a certain yearly tack duty, or a 
 certain number of rental holls, to which both parties were, under certain 
 limitations, bound permanently to adhere. It frequently happened, that 
 the beneficiary vexatiously delayed to draw his teind, for the purpose of 
 making better terms with the occupier in any agreement for a commuta- 
 tion. Parliament attempted various remedies, all of which were inoperative, 
 
 * 1606, c 2, 1617, c. 2. 
 
TITHES. 779 
 
 Charles I. therefore, soon after his accession, revoked all grants of churcli 
 lands, or of tithes, made by James VI. to the prejudice of the crown. It 
 was determined, year after year, to reduce all the erections, both those 
 before and those after the act of annexation : 1. the titulars were required 
 to yield the superiority of the church lands to the crown, when a certain 
 annuity should be paid out of the tithes to the crown ; 2. the titulars 
 (beneficiaries) were required to sell the tithes to the proprietor, at a fixed 
 number of years' purchase. Tithes set aside yearly for the support of the 
 clergy, universities, schools, and hospitals, should be valued at the suit of 
 the proprietor, who should have the entire management of the crop, stock, 
 and tithe, on payment either of the price or of the valued yearly duty. 
 
 In 1628, all the parties interested entered into four submissions, refer- 
 ring to the king himself as arbiter. The lords of erection, with their 
 tacksmen and the landlords, signed the first and fourth; the bishops and 
 clergy signed the second; and the commissioners of several royal burghs 
 signed the third. On the 2d September, 1629, the king pronounced sepa- 
 rate decrees- arbitral. The first and fourth declare the king's right to the 
 superiorities of erection, resigned to him by their submission. He agreed 
 to give a thousand merks to the lords of erection, as the purchase money 
 of each yearly chalder of feu-farm; or each a hundred merks of yearly 
 feu-duty, or other rent of superiority. After deducting an equivalent to 
 the blench -duties, the feu-duties were to be retained until payment. There 
 remained the other important provision, viz., the power given to the heritor 
 to have his teinds valued, and his yearly charge permanently fixed, and 
 also to bring an action of sale against the titular or his tacksman. The 
 rule fixed for the first was, that where on the one hand the teind was of 
 necessity united with his other stock in one common valuation, the yearly 
 duty payable by the heritor to the titular or beneficiary should be one- fifth 
 of that whole annual valuation of the rent of stock and tithe together. 
 This fifth was deemed a reasonable surrogatum, in place of a tenth of the 
 whole increase. On the other hand, where the tithe was drawn every harvest 
 by the titular, and its value thus admitted yearly of a proof separate from 
 that of the stock, the commissioners appointed for the valuation of the 
 teinds were to bring proof of its amount, and take its value communibus 
 annis. The proprietor was to pay this value annually to him who had 
 the right to the teind. From which was to be deducted a fifth, called the 
 king's case, because granted in his awards as an allowance of abatement 
 to the proprietor. Where the teinds, though drawn ipsa corpora, had 
 been mixed with others so as to prevent discrimination, or where the titular 
 was not a party, their value was to be taken at one-fourth of the valued 
 rent of the heritor's stock. Respecting the second the rule was, that when 
 the seller, e.g. the titular had an heritable and unburdened right to his 
 
780 TITHES. 
 
 tithes, he should be obliged to sell for nine years' purcliase. Where the 
 teinds were enjoyed by tacksmen, or when the purchaser himself was 
 tacksman, the commissioners should allow a deduction, regulated by the 
 endurance of the tack (lease). This was so arranged that while the titular 
 or other seller received his purchase money at the expiration of the lease, 
 the tacksman, whether the purchaser or a third party, retained in the one 
 case, and drew in the other, the interest of the price during the currency. 
 The grain, in which teinds have been already valued, must be valued at 
 the medium fiars for seven years preceding. The king's decrees -arbitral 
 on the other submissions were much to the same effect, except that the 
 king's power of valuation extended to those of the bishops' tithes which 
 they did not actually possess by rental bolls, or drawn tithe, but which were 
 in lease or other use of payment. In 1627, Charles I. appointed com- 
 missioners to fix the royal annuity. In order that the decrees arbitral in 
 the valuation of tithes might be executed under the authority of a proper 
 court, a commissioner was appointed * with power generally to value and 
 sell tithes, and approve the valuation of these subcommissioners. Valua- 
 tions were carried on for a long time under it. Part of the records were 
 carried off by Cromwell, and others were lost by fire in 1700. The com- 
 mission was renewed in 1707 to the judges of the court of session. They 
 approved of the valuation of the subcommissioners ; but which may be 
 derelinquished by the voluntary introduction of a different amount^ but 
 not mode, of payment to the minister or titular. A decree of the high 
 commission cannot be derelinquished. 
 
 The teinds vested in lay patrons are in a different situation from those 
 vested in the titulars. When they were deprived of the right of presenta- 
 tion,f all those tithes of the parish which had not previously been disposed 
 of were bestowed on them as an equivalent. When their right of presen- 
 tation was restoredjt their right to these teinds was confirmed. They 
 were burdened, however, " always with the minister's stipend, tacks, and 
 prorogation already granted of said teinds, and of such augmentations of 
 stipend, future prorogations, and erections of new kirks, as shall be found 
 just and expedient, providing the said patrons, getting right to the teinds 
 by virtue of this present act, and who had no right thereto before, shall be, 
 like as they are hereby obliged to sell to each heritor the teinds of his own 
 lands at the rate of six years' purchase, as the same shall be valued by a 
 commission for valuation of teinds." By this act, the heritor is in all cases 
 entitled to have his teinds valued. He buys them from the titular at nine 
 years' purchase, and from the patron at six years' purchase. This last 
 privilege belongs to the heritor alone. There are certain teinds, however, 
 
 • By act 1633, c. 19. f Act 164Q, c 39, X Act 1690, c. 23. 
 
TITHES. 781 
 
 which, though they may be valued, can never be bought by either the heritor 
 or feuar of the titheable lands.* These are : 1. teinds which have either 
 been allocated to or belonging to nninisters j 2. teinds granted to colleges 
 or schools; 3. teinds, formerly belonging to bishops, which, on the abolition 
 of episcopacy as an establishment merged in the crown; 4. teinds which 
 the heritor is bound to pay to a former heritor or titular, his superior. 
 
 As to the mode in which the established clergy of Scotland are provided 
 for out of the tithes, it » may be observed, that there were formerly two 
 descriptions of clergymen; the first, those of the bishops' mensal churches, 
 and depended sometimes on the bishops, sometimes on the crown, but since 
 the Revolution have permanent stipends modified by the commissioners, 
 from the bishops' — now the king's — tithes. The stipends of the second, 
 since their original appointment, had never been given out, and therefore 
 they remained the proprietors of the full tithe. It was given to the pa- 
 tron f as a solatium for his loss of presentation, burdened with a stated 
 provision out of these tithes for the parish minister. Every parochial mi- 
 nister in Scotland is therefore in fact a stipendiary either from the crown, 
 the titular, or the patron. 
 
 * By act 1690, c. 30. f Act 1649, c, 39. 
 
 I Prideaux on Tithes.^ — Blackstone's Commentaries. — Selden on Tithes. — Sir S. Degges' 
 Parson's Councillor. — Johnson's Clergyman's Vade-mecum. — Gibson's Codex — Watson's 
 Clergyman's Liaw. — Sir John Connell on Tithes. — Bell's Law Dictionary. — Erskine's In- 
 siitutes,— Statutes at Large. 
 
 r" 
 
INDEX. 
 
 plead 
 
 Abduction, forcible 
 Aberbrothwick parliamentary boundaries 
 Aberdeen parliamentary boundaries . 
 Abjuration, oath of 
 Actions, trials in civil 
 Acquittal, plea of a former . 
 Admiral, mnks of . 
 Adijiiralty, court of, England 
 Do., high seas subject to 
 Do., droits of 
 Do., high court of, Scotland 
 Do., jurisdiction of, do. 
 Do. advocates entitled to 
 before .... 
 
 Advocate 
 
 Do. king's or lord . 
 Do. depute . . . , 
 Do. GUI not imprison at his 
 discretion 
 Affinity, table of 
 African company ceased . 
 Airdrie parliamentary boundaries 
 Alderney, isle of . . . 
 Aliens, denizens, and natives 
 Alien may purchase lands 
 Allegiance, natural 
 Do., local 
 
 Do., oath of, when it may 
 tJiken 
 Annan parliamentary boundaries 
 Anstruther easier, parliamentary 
 daries 
 Do. wester, parliamentary 
 daries .... 
 Appeal, the great court of . 
 Apprentices .... 
 Archdeaconries, number of 
 Archdeacon's court . . v 
 Arches, the court of . 
 Army, standing 
 Arrest .... 
 Assize, circuits of, England 
 Assurance, the court of policies of 
 Attainder, judgment of . 
 Attorney .... 
 
 Do. General . 
 Auditor of court of session . 
 Ayr Pailiamentary boundaries 
 
 Bailable offences 
 Bttilifls or sheriff-officers 
 
 be 
 
 boun- 
 boun- 
 
 Page 
 
 197 
 391 
 387 
 698 
 175 
 214 
 693 
 164 
 426 
 59:i 
 
 608 
 609 
 
 611 
 164 
 
 648 
 562 
 
 566 
 628 
 282 
 397 
 424 
 696 
 601 
 699 
 600 
 
 656 
 899 
 
 392 
 
 392 
 163 
 658 
 427 
 162 
 162 
 687 
 2('3 
 18 
 165 
 227 
 151. 
 154 
 466 
 398 
 
 206 
 20 
 
 Banff parliamentary boundaries . . 390 
 
 Bank of England ciish pajments . 275 
 
 Bankrupts ineligible to sit in parliament 271 
 
 Banns 631 
 
 Baron court ..... 547 
 
 Do. criminal jurisdiction . 648 
 
 Do. privileges . . . 548 
 
 Bastards 654 
 
 Berwick on Tweed .... 421 
 
 Bill of Rights . .... 43 
 
 Birthright 662 
 
 Bishops, form of making . . . 683 
 Do. rights of . . , 678 
 Do. consecration of . , . 683 
 Do. sit in parliament . 689 
 Bishopricks endowed .... 666 
 Blasphemous and seditious libels . 280 
 Boundaries of towns returning two mem- 
 bers 386 
 
 Do. returning one do. . . 387 
 
 Do. of combined districts . . 3S8 
 
 Brechin parliamentary boundaries . 391 
 
 Britons, ancient 237 
 
 Burgh courts 632 
 
 Do. elections, act to alter and amend 633 
 
 Do., claim of voter at .641 
 
 Do., objection to voter at 642 
 
 Burntisland parliamentary boundaries 393 
 
 Cambridge, chancellor's court of . 168 
 Campbelltown parliamentary boundaries 399 
 Canterbury, an ecclesiastical province 427 
 
 Cash pa) ments 282 
 
 Chancellor, the lord — Scotland . 430 
 Chancery, high court of . . .169 
 Do., the inns of . . . 174 
 Do , bill in .... 180 
 Chester, a county palatine . . 427 
 Child, illegitimate .... 654 
 Do. rights and incapacities of . 656 
 Children, duties of, to parents . . 653 
 Chivalry, court of . . . . 163 
 Cholera morbus act . . . . 332 
 Church of England, government of . 699 
 Do., the united, of England and Ire- 
 land 661 
 
 Do., doctrine of the ... 673 
 Do., of England, convocation of . 686 
 Do., the established, of Scotland . 709 
 
 Clergy, the 606 
 
 Do., benefit of, abolished . . 607 
 Do. disqualified to sit in parliament 608 
 Do. ii.capable of entering into traffic 612 
 
784 
 
 INDEX. 
 
 Clergj', how elpcted, duties, &c. . 
 Do., benefit of ... . 
 Do., excluded from house of commons 
 Clerks of court of session . 
 Clerk of the market court . 
 College of justice .... 
 Do., privileges of . 
 Do., members of . . . 
 Colonies, British .... 
 
 Combination act repealed 
 Commissary court .... 
 Do. , instructions of 
 
 Do,, jurisdiction of . 
 
 Commissioners of setvi'm' court 
 Common law and equity courts . 
 
 Common law 
 
 Do. pleas court .... 
 Commons, electors of . . . 
 Do., determine contested elections 
 Do., house of, speaker of . 
 Do., by whom chosen . 
 Do., oath of allegiance, when taken 
 Do., house of, laws and customs pe- 
 culiar to 
 
 Confession of faith .... 
 
 Consistory court 
 
 Constable, office of . 
 Do. of England 
 Do. lord high, of Scotland 
 Do. who liable to hold office 
 Do. Oath of .... 
 
 Convention of estates .... 
 
 Convention of estates — Scotland 
 
 Copy rights secured .... 
 
 Coronation oath .... 
 
 Coroners ...... 
 
 Do,, by whom elected 
 
 Do., duty of .... 
 
 Do., punishment for neglect of duty 
 
 Do., court 
 
 Do. inquests improved 
 Corporations 
 Do., 
 Do., 
 Do., 
 Do., 
 Do., 
 Do., 
 
 Council, privy 
 
 Do., power of .... 
 Do. do., privileges of , 
 Do, do,, dissolution of . 
 Councillors, privy, duties of 
 Counties, English, number of 
 
 Do., palatine .... 
 Do , corporate .... 
 
 Do., court 
 
 Courts, in general .... 
 (Jrail parliamentary boundaries 
 Criminal jurisdiction, courts of . 
 
 Do. cases, proceedings in . 
 Cromarty parliamentary boundaries . 
 Crown, descent of . . . 121- 
 CuUen parliamentary boundaries 
 ■* Culross parliamentary boundaries . 
 Cupar parliamentary boundaries 
 Curate .... 
 
 aggregate . 
 
 sole 
 
 ecclesiastical 
 
 how created . 
 
 duty of 
 
 how dissolved . 
 
 Pane 
 
 613 
 
 224 
 269 
 465 
 202 
 429 
 467 
 457 
 424 
 285 
 502 
 604 
 605 
 165 
 155 
 420 
 156 
 96 
 99 
 1(H» 
 103 
 104 
 
 96 
 
 715 
 
 162 
 
 14 
 
 14 
 
 15 
 
 16 
 
 17 
 
 716 
 
 111 
 
 273 
 
 140 
 
 23 
 
 23 
 
 23 
 
 25 
 
 202 
 
 274 
 
 6:2 
 
 673 
 
 673 
 
 574 
 
 675 
 
 677 
 
 677 
 
 150 
 
 151 
 
 151 
 
 151 
 
 151 
 
 427 
 
 18 
 
 428 
 
 156 
 
 152 
 
 392 
 
 198 
 
 203 
 
 388 
 
 -127 
 
 390 
 
 393 
 
 392 
 
 679 
 
 D 
 
 Pace 
 
 Danes 238 
 
 Deacons, form of making . . 6S1 
 
 Death, punishment of, restricted . 419 
 
 Deforcement 617 
 
 Denizen 604 
 
 Dissenters, acts against, repealed , 271 
 
 Diligence 5-12 
 
 Dingwall parliamentary boundaries . 388 
 
 Discretion, years of . . . 656 
 
 Discipline, first book of . . . 712 
 
 Do., second do 713 
 
 Divorce . . ... 64(> 
 
 Doctors commons .... 169 
 
 Dooms-day book .... 3 
 
 Dornoch parliamentary boundaries . 388 
 
 Drilling and training . . . 278 
 
 Duelling 193 
 
 Dumbarton parliamentary boundaries ^4 
 
 Dumfries parliamentary boundaries . 399 
 
 Dunbar parliamentary boundaries . 3y6 
 
 Dundee parliamentary boundaries . 387 
 
 Dunfermline parliamentary boundaries 394 
 
 Durham, a county palatine . . 427 
 
 Dysart parliamentary boundaries . 393 
 
 E 
 
 Ecclesiastical, military, and maritime 
 
 courts ..... 161 
 Edinburgh parliamentary boundaries . 386 
 
 Education 648 
 
 Ekclors, qualifications of . . .96 
 Elgin parliamentary boundaries . 390 
 EUenborough's, lord, act . . .195 
 
 Ely, isle of 428 
 
 England, civil division of . . . 427 
 
 Epi^copacy restored . . . 715 
 
 Equity, courts of ... . 179 
 
 Estates, convention of . . . Ill 
 
 Evidence in a jury trial ... 65 
 
 Do., who are admitted to give . 66 
 
 Evidence, king's .... 213 
 
 Exchange, bills of . . . . 291 
 
 Exchequer, court of . . . .168 
 
 Do. chamber, court of . . 1()0 
 
 Execution of criminal . . . . 234 
 
 Do., warrant of . . . 236 
 
 Falkirk pariiamentary boundaries , .S97 
 
 Fealty, oath of .... 59J 
 
 Fee fund, collector of . . . . 466 
 
 Felon, reward for convicting a . . 2(15 
 
 Felo de sc, a ]Si) 
 
 Females, when of age . . . 657 
 
 Feudal system . . . . • 2—25 
 
 Do., when introduced . 3 
 
 Fiars, sheriff to strike . . . . 529 
 
 Fiscal of J. P. court . . . 64'3 
 
 Fleet, admiral of the . . . .692 
 
 Forests courts 165 
 
 Forfar pariiamentary boundaries . 391 
 
INDEX. 
 
 785 
 
 Forres parliamentary boundaries 
 Fortrose parliamentary boundaries . 
 Frankalmoign tenure 
 Frankpledge, court of . . . 
 Freeman's oath .... 
 
 Glasgow parliamentary boundaries 
 Government execution 
 
 Gray's Inn 
 
 Greenock parliamentary boundaries 
 Guardian and ward 
 Guernse} , isle of . . . 
 Guild, dean of, court 
 
 H 
 
 Habeas Corpus .... 
 
 Do. act (Scottish) 
 
 Haddington parliamentary boundaries 
 Hamesucken 
 Hamilton parliamentary boundaries 
 Hampton court conference 
 Hanover, kingdom of . 
 Heirs, obligations of 
 History, legal 
 
 Holy ordeis .... 
 Homage of vassals to their lords 
 
 Do. to the king 
 Homicide .... 
 
 Do. justifiable 
 
 Do. excusable 
 
 Do. felonious . 
 Home Tooke 
 
 House of commons, laws of . 
 Householder's oath 
 
 Do. certificate . 
 
 Hundred court . 
 Husband and wife . 
 
 page 
 
 m9 
 
 7 
 
 202 
 
 418 
 
 387 
 84 
 174 
 3S8 
 635 
 424 
 542 
 
 49 
 565 
 396 
 .>19 
 
 704 
 426 
 526 
 237 
 680 
 10 
 10 
 186 
 187 
 
 im 
 
 189 
 611 
 96 
 417 
 418 
 156 
 625 
 
 Indictment, nature of an . . . 207 
 
 Do., by whom prepared . 662 
 
 Individual absolute rights . . .112 
 
 Infants 657 
 
 Informatiens 209 
 
 Illegitimate children ... 654 
 Imprisonment, wrongous . . 518, 666 
 
 Injuries to property . , . 299 
 
 Inns of court 172 
 
 Inquests, coroners' .... 274 
 
 Insolvent debtors' petitions . . 170 
 
 Insolvent debtors' costs . . . 172 
 
 Insolvent debtors' court . . . 170 
 
 Intimation, letters of . . . 555 
 
 Inverary parliamentary boundaries . 399 
 
 Inverbervie parliamentary boundaries 391 
 
 Inverkeithing parliamentary boundaries 394 
 
 Inverness parliamentary boundaries 389 
 
 Inverury parliamentary boundaries . 390 
 
 Investiture 613 
 
 Ireland governed by English law . 319 
 
 Irish 40s. freeholders disfranchised 
 Irvine parliamentary boundaries 
 
 Page 
 
 331 
 . 399 
 
 Jailors, penalty on, for selling liquors 
 
 in prison . ... 21 
 
 Jedburgh parliamentary boundaries . 396 
 
 Jersey, isle of 424 
 
 Jews' bill .606 
 
 Judge, manner of making a . 172 
 
 Judges, king's legal councillors . . 150 
 
 Judgments ..... 178 
 
 Judgment, reversal of ... 229 
 
 Jurisdiction, courts of special . . 165 
 
 Do. plea of . . . .214 
 
 Jurors, by whom returned . . 52 
 
 Do. challenging of ... 63 
 
 Do. who are qualified to act as . 53 
 
 Do. oath of 208 
 
 Jury, origin of trial by . . . 278 
 Jury court, Scotland .... 470 
 Do. form of procedure . 482 
 Do. powers of, enlarged . . 483 
 Do. act, uniting with court of ses- 
 sion 486 
 
 Jury, trial by 51 
 
 Do. in civil causes ... 62 
 
 Do. verdict of . . . .57 
 Do. proceedings in a criminal trial 
 
 by 218 
 
 Do. , sittings of a . . . 207 
 Justice clerk, lord, of Scotland . 433 
 
 Justice, preventive .... 19b 
 Justices of peace jurisdiction extended in 
 
 small debt cases . . . 544 
 Do. liable to prosecution for 
 
 illegal proceedings . . 545 
 
 Do. receive no pecuniary 
 
 recompense .... 546 
 Do. by whom appointed 21 
 
 Do. duty of their office . 22 
 
 Do. cannot act in personal 
 
 cases 645 
 
 Do. cannot act beyond their 
 
 own county .... 545 
 
 Justiciary, grand, of England . . 17 
 
 Do. assize .... 667 
 
 Do. high court of . . . 468 
 
 Do. appeal to . . . . 469 
 
 K 
 
 Kilmarnock parliamentary boundaries 395 
 
 Kilrenny parliamentary boundaries . 392 
 
 Kindred, table of . . . . C28 
 
 King, Egbert, first, of England . . 121 
 
 Kinghorn parliamentary boundaries 393 
 
 Kings of England, historical view of . 121 
 duties and preroga- 
 
 Do. 
 
 tives 
 Do. 
 Do. 
 Do. 
 Do. 
 
 h 
 
 can do no wron' 
 prerogatives . 
 perfection . 
 perpetuity . 
 5 G 
 
 139 
 
 . 14^ 
 
 1!3, 148 
 
 . 144 
 
 145 
 
786 
 
 INDEX. 
 
 Kings of England, proclamations 
 
 Do. titles . 
 
 King's advocate 
 King's councils 
 King's bench, court of 
 Kintore parliamentary boundaries 
 Kirkaldy parliamentary boundaries . 3yiJ 
 Kirkcudbright parliamentary boundaries 399 
 Kirks, plantiition of ... 493 
 
 Kirkwall parb'amentary boundaries . 389 
 Knighthood, origin of . . . ] 1 
 
 Do. ceremony of . . .12 
 
 Page 
 
 147 
 
 140 
 648 
 149 
 167 
 390 
 393 
 
 Labourers .... 
 Lanark parliamentary boundaries 
 Lancaster, the court of the duchy of 
 
 Do. a county palatine 
 Larceny, in Ireland 
 Lauder parliamentary boundaries 
 Laws of England, rise and progress 
 Law, written .... 
 Do. of the road 
 Do. courts, in Scotland 
 League and covenant 
 Leaseholders' oath, Ireland 
 Leith parliamentary boundaries 
 
 Libel 
 
 Do. may be restricted 
 
 Do. swearing the 
 
 Lieutenant, lord, of Ireland 
 
 Lieutenants, general, duties of . 
 
 Legitimate children 
 
 Lincoln's inn .... 
 
 Linlithgow parliamentary boundaries 
 
 Liturgy 
 
 Locality ..... 
 
 Lochmaben parliamentary boundaries 
 
 Lords, house of, speaker of 
 
 Lords of the articles . 
 
 Lords lieutenants first appointed 
 
 Lords, extraordinary, Scotland . 
 
 M 
 
 Macers 
 
 Magistrates, privileges . 
 ]Magna Charta .... 
 
 Do. translation of . 
 
 INIaintenance .... 
 Males, when of age 
 Malice, express .... 
 Man, isle of ... , 
 
 Do. annexed to the crown 
 Manslaughter . 
 
 Do. involuntary 
 
 Marshalsea, the court of . 
 Mareschal of England 
 Maritime courts 
 Marriage act 
 Do law of 
 
 impediments to 
 ceremony of 
 duties of 
 clandestine 
 
 Do. 
 Do. 
 Do. 
 Do. 
 
 659 
 398 
 166 
 427 
 419 
 396 
 237 
 420 
 420 
 45i9 
 706 
 417 
 397 
 617 
 5&1 
 656 
 667 
 695 
 646 
 174 
 398 
 6J9 
 498 
 400 
 100 
 111 
 18 
 441 
 
 466 
 532 
 
 26 
 33 
 047 
 C56 
 193 
 423 
 285 
 191 
 192 
 166 
 17 
 164 
 282 
 627 
 628 
 636 
 639 
 664 
 
 Page 
 
 Marriage, disqualifications to . , 646 
 
 Master and servant .... 658 
 Do. act to settle disputes 
 
 between .... 283 
 
 Majiiooth college .... 325 
 
 Military and maritime states . . 582 
 
 Military services .... 7 
 
 Do. law 70 
 
 Do. and maritime courts . . 161 
 
 Do. courts 163 
 
 Militia, origin of ... . ^^3 
 
 Misdemeanour 183 
 
 Montrose parliamentary boundaries . 391 
 
 Mothers' authority .... 649 
 
 Musselburgh parliamentary boundaries 397 
 
 Mutiny act 282 
 
 N 
 
 Nairn parliamentary boundaries . 390 
 
 Naturalization 604 
 
 Navy, act to regulate the . . 589 
 
 New Galloway parliamentary boundaries 400 
 
 Nisi prius, court of . . . . 161 
 
 Norman conquest .... 242 
 North Berwick parliamentary boun 
 
 daries 
 
 Oath of fealty .... 
 
 Do. coronation 
 
 Do. judicial .... 
 
 Do. of supremacy . 
 
 Do. taken by justices of peace . 
 
 Do. of abjuration . 
 
 Do. of allegiance 
 
 Do. to whom tendered . 
 
 Do. administered on trial by jury 
 Oban parliamentary boundaries 
 Ordinary, lords, Scotland . 
 Outlawries punished 
 Oxford's, the chancellor of, court 
 Oyer and terminer courts 
 
 Paisley parliamentary boundaries 
 
 Palace court .... 
 
 Palatine counties . 
 
 Palatine, courts of the, counties 
 
 Pardon .... 
 Do. may be conditional . 
 
 Papists, laws affecting 
 
 Parent and child 
 
 Do. duties of . 
 
 Parishes, origin of . 
 
 Pariiament, ancient, of Scotland 
 
 Parliament of Ireland 
 
 Pariiament, British . 
 
 Do. first institution of 
 Do. when summoned 
 Do. first estate of 
 Do. second do. of . 
 Do. third do. of . 
 
 395 
 
 5 
 140 
 316, 386 
 317 
 644 
 69vS 
 697 
 699 
 66 
 399 
 433 
 211 
 16S 
 201 
 
 387 
 
 166 
 
 427 
 
 167 
 
 230 
 
 233 
 
 320 
 
 646 
 
 648 
 
 678 
 
 108 
 
 567 
 
 81 
 
 86 
 
 , 98 
 
 90 
 
 90 
 
 91 
 
 86 
 
INDEX. 
 
 78T 
 
 Page 
 
 Parliament, privileges of . . .95 
 
 Do assembling of . . 103 
 
 Do. mode of procedure in . 105 
 
 Do. adjournment of . . 100 
 
 Do. prorogation of . . . 100 
 
 Do. dissolution of . . 101 
 
 Patronage, foundation of . . . 678 
 
 Peace, justice of, court . , . 643 
 
 Do. who are quali fied to act as 544 
 
 Do. jurisdiction of . . 544 
 
 Peculiars, the court of . . . 162 
 
 Peers, hereditary king's councillors . 150 
 
 Peers may vote by proxy ... 96 
 
 Penance, judgment of . . . 212 
 
 Perth parliamentary boundaries . . 388 
 
 Peterhead parliamentary boundaries 391 
 
 Piepoudre court 155 
 
 Pleas 176 
 
 Political meetings put down . . 278 
 
 Port Glasgow parliamentary boundaries 395 
 
 Portobello parliamentary boundaries . 397 
 
 Pittenweem parliamentary boundaries 392 
 
 PrsBmunire, offence of ... 79 
 
 Prerogative, the court of . . . 162 
 
 President, lord, of Scotland . . 431 
 
 Do. do., his salary 432 
 
 Prisoner, poor, allowed counsel . . 563 
 
 Do. may force on his trial . 563 
 
 Process 210 
 
 Punishment 227 
 
 Puritans 701 
 
 Quakers' affiiTnation 
 Queen, prerogatives of the 
 Queensferry parliamentary boundaries 
 
 Queen dowager 
 
 Quo warranto, writ of . . 
 
 R 
 
 Recto B 
 Reform bill, 
 
 Do. 
 
 Do. 
 
 Do. 
 
 Do. 
 
 Do. 
 
 Do. 
 
 Do. 
 
 Do. 
 
 Do. 
 
 Do. 
 
 Do. 
 
 Do. 
 Reform bill, 
 
 Do. 
 
 Do. 
 
 Do. 
 
 Do. 
 
 Do. 
 
 Do. 
 
 Do. 
 
 Do. 
 
 Do. 
 
 Do. 
 
 England 
 schedule A 
 
 do. B 
 
 do. 
 
 do. 
 
 do. 
 
 do. 
 
 do. 
 
 C 
 D 
 
 E2 
 F 
 
 do. F2 
 do. H 
 
 I . 
 K 
 L. 
 
 do. 
 
 do. 
 
 do. 
 Scotland 
 schedule A 
 
 do. B. 
 
 do. 
 
 do. 
 
 do. 
 
 C . 
 
 D 
 
 E. 
 
 do. F 
 do. G. 
 
 do. 
 do. 
 do. 
 
 318 
 116 
 394 
 117 
 210 
 
 619 
 332 
 366 
 357 
 357 
 358 
 358 
 359 
 359 
 360 
 360 
 362 
 364 
 365 
 367 
 383 
 3S3 
 3S3 
 3^3 
 384 
 384 
 385 
 386 
 386 
 386 
 
 Page 
 
 Reform bill, schedule L . . 386 
 
 Do. do. M . . . 386 
 
 Reform bill, Ireland .... 401 
 
 Do. schedule A . . 414 
 
 Do. do. B . . . 414 
 
 Do. do. C [No. 1.] . 414 
 
 Do. do. C[No. 2.] . 415 
 
 Do. do. C [No. 3.] . 416 
 
 Do. do. C[No. 4.] . 416 
 
 Do. do. C[No. 5.] . 416 
 
 Do. do. C [No. 6.] . 417 
 
 Do. do. C [No. 7. "J . 417 
 
 Do. do. C [No. 8.] . 417 
 
 Do. do. C [No. 9.] . 418 
 
 Do. do. D . . . 418 
 
 Reformation 667 
 
 Regalia of Scotland carried to England 422 
 
 Relations in private life . . . 625 
 
 Registry of vessels' act ... 284 
 
 Religion, articles of . . , 697 
 
 Renfrew parliamentary boundaries . 395 
 
 Reprieve, or pardon .... 230 
 
 Requests, the court of . . . 168 
 Revolution, 1688 . . . .87 
 Rights, bill of. . . . 43,120 
 
 Rights, absolute, of individuals . . 112 
 
 Riot act 68 
 
 Do. penalties inflicted by . . 531 
 
 Riots 61 
 
 Do. defined by Sir N. Tindal . . 61 
 
 Do. suppression of, by military . 67 
 Do. may be restrained by justices of the 
 
 peace 68 
 
 Robbery 293 
 
 Rutherglen parliamentary boundaries 395 
 
 St Andrews parliamentary boundaries 393 
 Sanquhar parliamentary boundaries . 400 
 
 Sark, isleof 424 
 
 Scotland, origin and descent of the royal 
 
 family of .... 127- 
 
 -139 
 
 Senators of college of justice . 
 
 433 
 
 Seneschal, office of . . . 
 
 17 
 
 Serjeants' inns .... 
 
 174 
 
 Servant and master .... 
 
 658 
 
 Session, court of . . . 
 
 441 
 
 Do. do. divided 
 
 449 
 
 Do. do. jurisdiction of 
 
 452 
 
 Do. do. lords of . . . 
 
 460 
 
 Do. do. advocates of . 
 
 460 
 
 Sheriffs of England .... 
 
 19 
 
 Sheritls' town 
 
 202 
 
 Sheriff court— Scotland 
 
 512 
 
 Do. jurisdiction of 
 
 613 
 
 Sheriff deputes 
 
 514 
 
 Do. their jurisdiction in crimi- 
 
 
 nal matters .... 
 
 515 
 
 Do. civil jurisdiction of 
 
 521 
 
 Do. ministerial duties 
 
 527 
 
 Do. strike the flars 
 
 529 
 
 Do. to read riot act 
 
 530 
 
 Shire, origin of 
 
 427 
 
 Signet, writers to the . . . 
 
 463 
 
 Soccage tenure 
 
 8 
 
 Solicitors of court of session 
 
 464 
 
788 
 
 INDEX. 
 
 Pa?e 
 
 Stannary courts 167 
 
 tatute law, what it is . . . 420 
 
 Stranraer parliamentary boundaries . 400 
 
 Steward, lord high .... 1.''9 
 
 Steward, lord, court of the . . . 202 
 
 Stipend . . . . . . 498 
 
 Stirling parliamentary boundaries .' 394 
 
 Submission, act of . . . > . 690 
 
 Surveyors of highways ... 22 
 
 Tain parliamentary boundaries . 
 Temple, the . 
 
 Do. inner and middle . 
 Tenures, lay . 
 Test act .... 302, 
 
 Do, repealed ... 
 Tiend court, ministerial jurisdiction 
 Tiends, act anent valuation of 
 
 Do. act augmenting 
 
 Do. process of augmentation of 
 
 Tithings 
 
 Titles of honour ... 
 Toleration act . 
 Treason, iietit 
 Treason, defined 
 
 Do. petit .... 
 
 Do. misprision of 
 
 Do. do. judgment of 
 
 . 389 
 
 173 
 
 • . 174 
 
 6 
 
 679, 6S0 
 
 327 
 
 of 
 
 499 
 
 493 
 
 494 
 
 49S 
 
 471 
 
 149 
 
 7C6 
 
 197 
 
 68 
 
 60 
 
 61 
 
 61 
 
 U V 
 
 PjKP 
 
 Universities, lord steward of . . 2(t3 
 
 Union of Great Britain and Ireland 267 
 
 Union, articles of . ... 2G-^ 
 
 Vagabonds . . . . . 519 
 
 Vassals and lord 4 
 
 Verdict 58-1. 
 
 Do. of a jury . . . . 67 
 
 Vipar ...... 620 
 
 Villains in doomsday book ... 9 
 
 Do. may purchase their freedom 10 
 
 W 
 
 Wales, subject to the law of England 421 
 
 Do. court of the principality of 166 
 
 Weights and measui'es regulated . 284 
 
 Whithorn parliamentary boundaries 400 
 
 Wick parliamentary boundaries . . 389 
 
 Wigton parliamentary boundaries . 400 
 
 Witnesses, examination of . . . 663 
 
 Wood, growing, secured . . . 624 
 
 Writ, quo warranto .... 210 
 
 Writ, certiorari facias . . . 211 
 
 Yeomen of the guards . . . 583 
 
 York, an ecclesiastical province 427 
 
 THE END. 
 
 GLASGOW: 
 
 PRINTED BY GECRGE BliOOKMAN. 
 
14 DAY USE 
 
 RETURN TO DESK FROM WHICH BORROWED 
 LOAN DEPT. 
 
 This book is due on the last date stamped below, or 
 
 on the date to which renewed. 
 
 Renewed books are subjea to immediate recall. 
 
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 REC'D LD 
 
 
 MAY 1 1959 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 T,T>9iA e;n«i q'c;s General Library 
 
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