n
Ex Libris
C. K. OGDEN
J. K.HABERFIELD
TO
R. HASSELL J I*
COMMENTARIES
ON THE
iatos of
FOUR BOOKS.
BY
Sir WILLIAM BLACKSTONE, Knt.
ONE OF THE JUSTICES OF HIS MAJESTY'S
COURT OF COMMON PLEAS.
THE FIFTEENTH EDITION,
WITH THE LAST CORRECTIONS OF THE AUTHOR;
AND WITH NOTES AND ADDITIONS
By EDWARD CHRISTIAN, Efq.
BARRISTER AT LAW,
THE DOWNING PROFESSOR OF THE LAWS OF ENGLAND,
AND CHIEF JUSTICE OF THE ISLE OF ELY.
LONDON:
PRINTED BY A. STRAHAN,
I.AW-PRINTEa TO THE KING'S MOST EXCELLENT MAJESTY,
FOR T. CADELL AXD W. DAVIES, IN THE STRAND.
1809.
Staclc
Annex
k
The Queen's Moji Excellent Majejiy,
THE FOLLOWING VIEW
OF THE LAWS AND CONSTITUTION
OF ENGLAND,
THE IMPROVEMENT AND PROTECTION OF WHICH
HAVE DISTINGUISHED THE REIGN
OF HER MAJESTY'S ROYAL CONSORT,
IS,
WITH ALL GRATITUDE AND HUMILITY,
MOST RESPECTFULLY INSCRIBED
BY HER DUTIFUL
AND MOST OBEDIENT
SERVANT,
WILLIAM BLACKSTONE.
A 3
PREFACE.
ollowing sheets contain the substance of
a course of lectures on the laws of England,
which were read by the author in the university
of OXFORD. His original plan took its rise in
the year 1753: and notwithstanding the novelty
of such an attempt in this age and country , and
the prejudices usually conceived against any in-
novations in the established mode of education, be
bad the satisfaction to Jind (and he acknowledges
it with a mixture of pride and gratitude) that
his endeavours were encouraged and patronized
by those, both in the university dnd out of it,
whose good opinion and esteem he was principally
desirous to obtain.
The death of Mr. VINER in 1756, and
his ample benefaction to the university for pro-
moting the study of the law, produced about two
years afterwards a regular and public establish-
ment of what the author had privately under-
taken. The knowledge of our laws and constitu-
tion, was adopted as a liberal science by general
academical authority ; competent endowments were
A 4 decreed
viii PREFACE.
decreed for the support of a lecturer, and the per-
petual encouragement of students ; and the com-
piler of the ensuing Commentaries had the honour
to be elected the first Vinerian professor.
In this situation he was led, both by duty and
inclination, to investigate the elements of the
law, and the grounds of our civil polity, 'with
greater assiduity and attention than many have
thought it necessary to do. And yet all, who
of late years have attended the public admi-
nistration of justice ', must be sensible that a mas-
terly acquaintance 'with the general spirit of
laws and the principles of universal jurispru-
dence^ combined with an accurate knowledge of
our own municipal constitutions, their original,
reason^ and history, hath given a beauty and
energy to many modern judicial decisions, with
which our ancestors were wholly unacquainted.
Jf t in the pursuit of these inquiries, the author
hath been able to rectify any errors which either
himself or others may have heretofore imbibed y his
pains will be sufficiently answered: and, if in some
points he is still mistaken, the candid and judicious
reader will make due allowances for the aifficulties
of a search so new, so extensive, and so laborious.
2 Nov. 1765.
POSTSCRIPT.
NOTWITHSTANDING the diffidence expressed in
the foregoing Preface, no sooner was the work .
completed, but many of its positions 'were vehe-
mently attacked by zealots of all (even oppo-
site) denominations, religious as 'well as civil ;
by some with a greater, by others 'with a less
degree of acrimony. To such of these ani-
madverters as have fallen within the author's
notice (for he doubts not but some have escaped
it) he owes at least this obligation; that they
have occasioned him from time to time to revise
his work, in respect to the particulars objected
to ; to retract or expunge from it what appeared
to be really erroneous ; to amend or supply it
when inaccurate or defective ; to illustrate and
explain it when obscure. But, where he thought
the objections ill-founded, he hath lefty and shall
leave, the book to defend itself: being fully of
opinion, that if his principles be false and his
doctrines unwarrantable, no apology from him-
self can make them right ; if founded in truth
and rectitude, no censure from others can make
them wrong.
ADVERTISEMENT
TO
THIS EDITION.
JL HE difcharge of a duty fimilar to that to which
the world is indebted for the Commentaries on the
Laws of England, led the Editor to prefume, that
in the courfe of his refearches he might be able to
colleft fome obfervations which might be ufeful to the
Public, and at the fame time it fuggefted the propriety
of his exertions to contribute to the further improve-
ment of that valuable production.
The extenfive fale of the preceding Editions has
abundantly proved that the defign meets with general
approbation.
No alteration has been made in the Author's text ;
but the principal changes, which either the legiflature
or the decifions of the courts have introduced into
the law fince the laft corrections of the Author, are
fpecified and explained by the Editor in the notes. *
The Commentaries on the Laws of England form
an efiential part of every Gentleman's library : the
beautiful and lucid arrangement, the purity of the
language, the claffic elegance of the quotations and
* The Editor's notes are feparated from the Text and notes of
the Author, by a line, and are referred to by figures, thus (i ) ; and
the pages of the former editions are preferved in the margin.
allufions,
ADVERTISEMENT. xi
allufions, the clear and intelligible explanation of
every fubject, muft always yield the reader as much
pleafure as improvement; and wherever any confti-
tutional or legal queftion is agitated, they are the firft,
and, in general, the bed authority referred to. What
Pliny has faid of another eminent profeflbr of Law
may juftly be applied to Sir William Blackftone ;
Quarn peritus ille et privati juris et publici ! Quantum
rerum, quantum exemplorum 9 quantum antiquitatis
tenet ! Nihil eft quod difcere velis, quod ille docere
nonpoteft. Mihi certe, quoties aliquid abditum quaro,
ille thefaurus eft. Plin. Epift. i. 22.
In order to add to the utility of the Commentaries,
as a book of general reference, the Editor has an-
nexed fuch exceptions and particular inftances as
he thought would render the information (till fuller
and more complete. Where he has prefumed to
queftion any of the learned Commentator's doctrines,
he has affigned his reafons for his doubt or diflent ;
but where he has difcovered any inaccuracy arifmg
merely from inadvertence, he has dated it without
fcruple or ceremony. We mould expect more than
human excellence, if we imagined that a work, com-
prifing almoft the whole fyftem of Englifh jurifpru-
dence, could be entirely free from miftakes. But
it is a matter of great concern to the Profeffion and
to the Public at large, that, in an Author fo univerfally
read, fo defervedly admired, and in whom fuch con-
fidence is repofed, every fubjecl: fhould be reviewed
with fcrupulous and critical precifion. It has been,
and
xii ADVERTISEMENT.
and it will continue to be, the Editor's peculiar ftudy
and ambition to advance this learned performance to
as great a degree of accuracy and perfection as his
attention and ability can effect ; and he will always
be grateful for any correction of his own errors, or
for any ufeful remarks which may not have occurred
to him in his Examination of the Commentaries.
To prevent any unfounded animadverfions, the
Editor, or he ought rather perhaps to call himfelf the
Annotator, wifhes the purchafers of this Work to be
informed, that he holds himfelf refponfible for the
utility and accuracy of the Notes in every Edition to
which his name is prefixed ; but that, with regard
to every other circumftance attending the publication,
he has no direction or control whatever.
Though the Notes in this Edition have been con-
fiderably extended, yet there are fome important fub-
jects, which the Author has either entirely omitted, or
too concifely touched upon ; the Editor is therefore
preparing to publifh feparately fuch additions as thefe
deficiencies in the Commentaries feem to require.
The profeffional reader ought to be apprized, that
the Editor in the Notes has frequently referred to
Annotators and the Authors of Law Treatifes in pre-
ference to original cafes, thofe learned writers in the
places cited having generally collected all the original
authorities, which would be too numerous to be intro-
duced into a note to the Commentaries.
EDWARD CHRISTIAN.
LINCOLN'S INN, -* {
March I, 1809.
( xiii )
CONTENTS.
^,
INTRODUCTION.
Of the STUDY, NATURE, and EXTENT
of the LAWS of ENGLAND.
SECT. I.
On the STUDY of the LAW. Page 3
SECT. II.
Of the NATURE of LAWS in general. 38
SECT. III.
Of the LAWS of ENGLAND. 63
SECT. IV.
Of the COUNTRIES fubjeft to the LAWS of
ENGLAND. 93
x iv CONTENTS.
BOOK I.
Of the RIGHTS of PERSONS.
CHAP. I.
Of the abfolute RIGHTS of INDIVIDUALS. Page 121
CHAP. II.
/
Of the PARLIAMENT. 146
CHAP. III.
Of the KING, and his TITLE. 190
CHAP. IV.
Of the KING'J royal FAMILY. 2 1 9
CHAP. V.
Of the COUNCILS belonging to the KING. 227
CHAP. VI.
Of the KING'* DUTIES. 233
CHAP. VII.
Of the KING'J PREROGATIVE. 237
CONTENTS; xv
CHAP. VIII.
Of the KING'* REVENUE. Page 281
CHAP. IX.
Of fubordinate MAGISTRATES. 338
CHAP. x.
Of the PEOPLE, whether ALIENS, DENIZENS,
or NATIVES. 365
CHAP. XI.
Of the CLERGY. 376
CHAP. XII.
Of the CIVIL STATE. 396
CHAP. XIII.
Of the MILITARY and MARITIME STATES. 408
CHAP. XIV.
Of MASTER and SERVANT. 422
CHAP. XV.
Of HUSBAND and WIFE. 433
xvi CONTENTS,
CHAP. XVI.
Of PARENT and CHILD. Page 446
CHAP. XVII.
Of GUARDIAN and WARD. 460
CHAP. XVIII.
Of CORPORATIONS. 467
INTRO-
INTRODUCTION.
OF THE
STUDY, NATURE, AND EXTENT
OP THE
LAWS OF ENGLAND.
VOL, I. B
INTRODUCTION.
SECTION THE FIR&T.
ON THE STUDY OF THE LAW.'
MR. VICE-CHANCELLOR, AND GENTLEMEN OF
THE UNIVERSITY.
HPHE general expectation of fo numerous and refpeft-
able an audience, the novelty, and (I may add) the
importance of the duty required from thjs chair, muft
unavoidably be productive of great diffidence and appre-
henfions in him, who has the honour to be placed in it.
He muft be fenfible how much will depend upon his con-
duct in the infancy of a ftudy, which is now firft adopted
by public academical authority ; which has generally been
reputed (however unjuftly) of a dry and unfruitful nature ;
and of which the theoretical, elementary parts have hitherto
received a very moderate mare of cultivation. He cannot
but reflect, that, if either his plan of inftruction be crude and
injudicious, or the execution of it lame and fuperficial, it will
caft a damp upon the farther progrefs of this mod ufeful and
moft rational branch of learning; and may defeat, for a time,
* Read in Oxford gt the opening of the Vinerian ledures; 25 O<S. 1758.
B 2 the
4 On the STUDY INTROD.
the public-fpirited defign of our wife and munificent benefac-
tor. And this he muft more efpecially dread, when he feels
by experience how unequal his abilities are (unaffifted by pre-
ceding examples) to complete, in the manner he could wifli,
fo extenfive and arduous a tafkj fmce he freely confefles, that
his former more private attempts have fallen very Ihort of
his own ideas of perfection. And yet the candour he has
already experienced, and this laft tranfcendant markof regard,
his prefent nomination by the free and unanimous fuffrage
of a great and learned univerfity, (an honour to be ever re-
membered with the deepeft and mod affectionate gratitude,)
thefe teftimonies of your public judgment muft entirely
fuperfede his own, and forbid him to believe himfelf totally
inefficient for the labour at leaft of this employment. One
thing he will venture to hope for, and it certainly {hall be his
conftant aim, by diligence and attention to atone for his other
defects; efteeming that the beft return, which he can pofiibly
make for your favourable opinion of his capacity, will be his
unwearied endeavours in fome little degree to deferve it.
THE fcience thus committed to his charge to be cultivated,
methodized, and explained in a courfe of academical lectures,
is that of the laws and conftitution of our own country : a
fpecies of knowledge in which the gentlemen of England
have been more remarkably deficient than thofe of all Europe
befides. In moft of the nations on the continent, where the
civil or imperial law under different modifications is clofely
interwoven with the municipal laws of the land, no gentle-
man, or at leaft no fcholar, thinks his education is completed,
till he has attended a courfe or two of lectures, both upon
the inftitutes of Juftinian and the local conftitutions of his
native foil, under the very eminent profeflbrs that abound in
their feveral univerfities. And in the northern parts of our
own ifland, where alfo the municipal laws are frequently
connected with the civil, it is difficult to meet with a perfon
of liberal education, who is deftitute of a competent know-
ledge in that fcience, which is to be the guardian of his na-
tural rights and the rule of his civil conduct.
NOR
i. of the LAW. 5
NOR have the imperial laws been totally neglected even
in the Englifli nation. A general acquaintance with their
decifions has ever been defervedly confidered as no fmall ac-
complifliment of a gentleman ; and a fafhion has prevailed,
efpecially of late, to tranfport the growing hopes of this
ifland to foreign univerfities, in Switzerland, Germany, and
Holland ; which, though infinitely inferior to our own in
every other confideration, have been looked upon as better
nurferies of the civil, or (which is nearly the fame) of their
own municipal law. In the mean time it has been the pecu-
liar lot of our admirable fyftem of laws, to be neglected, and
even unknown, by all but one practical profeffion ; though
built upon the foundeft foundations, and approved by the
experience of ages.
FAR be it from me to derogate from the ftudy of the civil
law, confidered apart from any binding authority as a collec-
tion of written reafon. No man is more thoroughly per-
fuaded of the general excellence of its rules, and the usual
equity of its decifions, nor is better convinced of its ufe as
well as ornament to the fcholar, the divine, the ftatefman,
and even the common lawyer. But we muft not carry our
veneration fo far as to facrifice our Alfred and Edward to
the manes of Theodofius and Juftinian : we muft not prefer
the edict of the prsetor, or the refcript of the Roman em-
peror, to our own immemorial cuftoms, or the fanctions of
an Englifh parliament; unlefs we can alfo prefer the defpotic
monarchy of Rome and Byzantium, for whofe meridians the
former were calculated, to the free conftitution of Britain,
which the latter are adapted to perpetuate.
WITHOUT detracting therefore from the real merit which
abounds in the imperial law, I hope I may have leave to
aflert, that if an Englifhman muft be ignorant of either the
one or the other, he had better be a ftranger to the Roman
than the Englim inftitutions. For I think it an undeniable
pofition, that a competent knowledge of the laws of that fo-
B 3 ciety
5 On the STUDY INTROD.
ciety in which we live, is the proper accompliftiment of every
[ 6 ] gentleman and fcholar ; an highly ufeful, I had almoft faid
effential, part of liberal and polite education. And in this
I am warranted by the example of ancient Rome j where,
as Cicero informs us % the very boys were obliged to learn
the twelve tables by heart, as a carmen neceffarium or indif-
penfable leflbn, to imprint on their tender minds an early
knowle'dge of the laws and conftitution of their country.
BUT as the long and univerfal neglect of this ftudy, with
us in England, feems in fome degree to call in queftion the
truth of this evident pofition, it mall therefore be the bufi-
nefs of this introductory difcourfe, in the firft place, to de-
monftrate the utility of fome general acquaintance with the
municipal law of the land, by pointing out its particular
ufes in all confiderable fituations of life. Some conje&ures
will then be offered with regard to the caufes of neglecting
this ufeful ftudy : to which will be fubjoined a few reflec-
tions on the peculiar propriety of reviving it in our own
univerfities.
AND, firft, to demonftrate the utility of fome acquaint-
ance with the laws of the land, let us only refleft a moment
on the fingular frame and polity of that land, which is go-
verned by this fyftem of laws. A land, perhaps, the only one
in the univerfe, in which political or civil liberty is the very
end and fcope of the conftitution. b This liberty, rightly un-
derftood, confifts in the power (i) of doing whatever the laws
permit ; which is only to be effected by a general conformity
of all orders and degrees to thofe equitable rules of action,
* De Legg. 2. 23. libet, nljt quid -vi, out jure frobibetur.
. h Montefq. Eff. L. I. II. c. 5. Inf. I. 3. I.
c Facultas ejus, quod caique facere
( i ) See the Editor's reafons for his difapprobation of this de-
finition of liberty in the note to p. 126.
by
i. tf the IMW. 6
by which the meaneft individual is protected from the infults
and oppreflion of the greateft. As therefore every fubjeft is
interefted in the prefervation of the laws, it is incumbent
upon every man to be acquainted with thofe, at leaft, with
which he is immediately concerned j left he incur the cen-
fure, as well as inconvenience, of living in fociety without
knowing the obligations which it lays him under. And thus
much may fuffice for perfons of inferior condition, who have [ 7 3
neither time nor capacity to enlarge their views beyond that
contracted fphere, in which they are appointed to move. But
thofe on whom nature and fortune have beftowed more abi-
lities and greater leifure, cannot be fo eafily excufed. Thefe
advantages are given them, not for the benefit of themfelves
only, but alfo of the public ; and yet they cannot, in any
fcene of life, difcharge properly their duty either to the pub-
lic or themfelves, without fome degree of knowledge in the
laws. To evince this the more clearly, it may not be amifs
to defcend to a few particulars.
LET us therefore begin with our gentlemen of independ-
ent eftates and fortune, the moft ufeful as well as confider-
able body of men in the nation j whom even to fuppofe igno-
rant in this branch of learning is treated by Mr. Locke d ,
as a ftrange abfurdity. It is their landed property, with its
long and voluminous train of defcents and conveyances, fet-
tlements, entails, and incumbrances, that forms the moft
intricate and moft extenfive object of legal knowledge. The
thorough comprehenfion of thefe, in all their minute dif-
tin&ions, is perhaps too laborious a tafk for any but a lawyer
by profeffion ; yet ftill the underftanding of a few leading
principles, relating to eftates and conveyancing, may form
fome check and guard upon a gentleman's inferior agents,
and preferve him at leaft from very grofs and notorious im-
pofition.
d Education, 187.
B 4 AGAIN,
7 On ihe STUDY INTROD.
AGAIN, the policy of all laws has made fome forms necef-
fary in the wording of laft wills and teftaments, and more
with regard to their atteftation. An ignorance in thefe mufl
always be of dangerous confequence, to fuch as by choice or
neceffity compile their own teftaments without any technical
affiftance. Thofe who have attended the courts of juftice
are the beft witnefles of the confufion and diftrefles that are
hereby occafioned in families; and of the difficulties that arife
in difcerning the true meaning of the teftator, or fometimes
in difcovering any meaning at all: fo that in the end his eftate
[ 8 ] may often be vefted quite contrary to thefe his enigmatical
intentions, becaufe perhaps he has omitted one or two for-
mal words, which are neceflary to afcertain the fenfe with
indifputable legal precifion, or has executed his will in the
prefence of fewer witnefles than the law requires.
BUT to proceed from private concerns to thofe of a more
public consideration. All gentlemen of fortune are, in con-
fequence of their property, liable to be called upon to efta-
blifh the rights, to eftimate the injuries, to weigh the accuf-
ations, and fometimes to difpofe of the lives of their fellow-
fubjects, by ferving upon juries. In this fituation they have
frequently a right to decide, and that upon their oaths, quef-
tions of nice importance, in the folution of which fome legal
fldll is requifite; efpecially where the law and the fat, as it
often happens, are intimately blended together. And the
general incapacity even of our beft juries, to do this with
any tolerable propriety, has greatly debafed their authority;
and has unavoidably thrown more power into the hands of
the judges, to direct, control, and even reverfe their ver-
dicts, than perhaps the conftitution intended.
BUT it is not as a juror only that the Englifh gentleman
is called upon to determine queftions of right, and diftribute
juftice to his fellow-fubje6ls: it is principally with this order
of men that the commiflion of the peace is filled. And here
a very
i. of the LAW. 8
a very ample field is open for a gentleman to exert his
talents by maintaining good order in his neighbourhood ;
by puniihing the diflblute and idle ; by prote&ing the peace-
able and induftrious ; and above all, by healing petty differ-
ences, and preventing vexatious profecutions. But, in order
to attain thefe defirable ends, it is neceflary that the magif-
trate fhould underftand his bufinefs ; and have not only the
will, but the power alfo (under which muft be included the
knowledge,) of adminiftering legal and effectual juftice.
Elfe, when he has miftaken his authority, through paffion,
through ignorance, or abfurdity, he will be the objeft of
contempt from his inferiors, and of cenfure from thofe to
whom he is accountable for his conduct.
YET farther ; mod gentlemen of confiderable property, at
fome period or other in their lives, are ambitious of repre-
fenting their country in parliament ; and thofe, who are am-
bitious of receiving fo high a truft, would alfo do well to
remember its nature and importance. They are not thus
honourably diftinguifhed from the reft of their fellow-fubjects,
merely that they may privilege their perfons, their eftates,
or their domeftics ; that they may lift under party banners ;
may grant or withhold fupplies ; may vote with or vote againft
a popular or unpopular adminiftration ; but upon confeder-
ations far more interefting and important. They are the
guardians of the Englifh conftitution ; the makers, repealers,
and interpreters of the Englifh laws ; delegated to watch,
to check, and to avert every dangerous innovation, to pro-
pofe, to adopt, and to cherifh any folid and well-weighed
improvement ; bound by every tie of nature, of honour, and
of religion, to tranfmit that conftitution and thofe laws
to their pofterity, amended if poffible, at leaft without any
derogation. And how unbecoming muft it appear in a mem-
ber of the legiflature to vote for a new law, who is utterly
ignorant of the old ! what kind of interpretation can he be
enabled to give, who is a ftranger to the text upon which he
comments !
INDEED
9 On the STUDY INTROD.
INDEED it is perfectly amazing that there fhould be no
other ftate of life, no other occupation, art, or fcience, in
which fome method of inftruction is not looked upon as re-
quifite, except only the fcience of legiflation, the nobleft and
moft difficult of any. Apprenticefhips are held neceflary to
almoft every art, commercial or mechanical : a long courfe
of reading and ftudy muft form the divine, the phyfician,
and the practical profeflbr of the laws : but every man of
fuperior fortune thinks himfelf born a legiflator. Yet Tully
L Io J was of a different opinion : " It is neceflary (fays he e ) for a
" fenator to be thoroughly acquainted with the conftitu-
" tion ; and this (he declares) is a knowledge of the moft
" extenfive nature j a matter of fcience, of diligence, of
*< reflection ; without which no fenator can poffibly be fit
for his office."
THE mifchiefs that have arifen to the public from inconfi-
derate alterations in our laws, are too obvious to be called
in queftion : and how far they have been owing to the de-
fective education of our fenators, is a point well worthy the
public attention. The common law of England has fared
like other venerable edifices of antiquity, which rafh and un-
experienced workmen have ventured to new-drefs and refine,
with all the rage of modern improvement. Hence frequently
its fymmetry has been deftroyed, its proportions diftorted,
and its majeftic fimplicity changed for fpecious embellifh-
ments and fantaftic novelties. For, to fay the truth, almoft
all the perplexed queftions, almoft all the niceties, intrica-
fies and delays, (which have fometimes difgraced the Eng-
lifh, as well as other courts of juftice,) owe their original not
to the common law itfelf, but to innovations that have
been made in it by acts of parliament ; *' overladen (as fir
" Edward Coke exprefles it f ) with provifoes and additions,
" and many times on a fudden penned or corrected by men
e De Legg. 3. 1 8. ft fenatori ne- gentiac, memoriae eft: Jinc quo fara-
cejjarium nojft rempullicam ; iJque late tus ejfe fenator nullo fafio fotejl,
patct : genvt bee omne fcicntiae, dili- ' Z Rep. pref.
"Of
i. / ffoLAW. 10
ft of none, or Very little judgment in law." This great and
well-experienced judge declares, that in all his time he never
knew two queftions made upon rights merely depending
upon the common law ; and warmly laments the confufion
introduced by ill-judging and unlearned legiflators. " But
" if," he fubjoins, " acts of parliament were after the old
" fafhion penned, by fuch only as perfectly knew what the
" common law was before the making of any act of parlia-
" ment concerning that matter, as alfo how far forth former
" flatutes had provided remedy for former mifchiefs, and
" defects difcovered by experience } then mould very few
" queftions in law arife, and the learned mould not fo often [ II
" and fo much perplex their heads to make atonement and
" peace, by conftruction of law, between infenfible and dif-
" agreeing words, fentences, and provifoes, as they now do."
And if this inconvenience was fo heavily felt in the reign of
Queen Elizabeth, you may judge how the evil is increafed
in later times, when the ftatute-book is fwelled to ten times
a larger bulk ; unlefs it mould be found, that the penners
of our modem ftatutes have proportionably better informed
themfelves in the knowledge of the common law.
WHAT is faid of our gentlemen in general, and the pro-
priety of their application to the ftudy of the laws of their
country, will hold equally ftrong or ftill ftronger with re-
gard to the nobility of this realm, except only in the article
of ferving upon juries. But, inftead of this, they have feverai
peculiar provinces of far greater confequence and concern ;
being not only by birth hereditary counsellors of the crown,
and judges upon their honour of the lives of their brother-
peers, but alfo arbiters of the property of all their fellow-
fubjects, and that in the laft refort. In this their judicial
capacity they are bound to decide the niceft and mod critical
points of the law : to examine and correct fuch errors as
have efcaped the moft experienced fages of the profeffion,
the lord keeper and the judges of the courts of Weftminfter.
Their fentence is final, decifive, irrevocable ; no appeal, no
correction
ii On the STUDY INTROD.
correction, not even a review can be had : and to their de-
termination, whatever it be, the inferior courts of juftice
muft conform j otherwife the rule of property would no
longer be uniform and fteady.
SHOULD a judge in the moft fubordinate jurisdiction be
deficient in the knowledge of the law, it would reflect infi-
nite contempt upon himfelf, and difgrace upon thofe who
employ him. And yet the confequence of his ignorance is
comparatively very trifling and fmall : his judgment may be
examined, and his errors rectified by other courts. But
how much more ferious and affecting is the cafe of a fupe-
[ 12 ] rior judge, if without any {kill in the laws he will boldly
venture to decide a queftion upon which the welfare and
fubfiftence of whole families may depend ! where the chance
of his judging right or wrong, is barely equal ; and where,
if he chances to judge wrong, he does an injury of the moft
alarming nature, an injury without poflibility of redrefs.
YET, \ait as this truft is, it can no where be fo properly
repofed, as in the noble hands where our excellent confti-
tution has placed it ; and therefore placed it, becaufe, from
the independence of their fortune and the dignity of their
ftation, they are prefumed to employ that leifure which is
the confequence of both, in attaining a more extenfive know-
ledge of the laws than perfons of inferior rank ; and becaufe
the founders of our polity relied upon that delicacy of fenti-
ment, fo peculiar to noble birth ; which, as on one hand
it will prevent either intereft or affection from interfering
in queftions of right, fo on the other it will bind a peer in
honour, an obligation which the law efteems equal to an-
other's oath, to be mafter of thofe points upon which it is
THE Roman pandects will furnifh us with a piece of his-
tory not unapplicable to our prefent purpofe. Servius Sul-
picius, a gentleman of the patrician order, and a celebrated
orator,
i. of the LAW. 12
orator, had occafion to take the opinion of Quintus Mutius
Scaevola, the then oracle of the Roman law ; but, for want
of fome knowledge in that fcience, could not fo much as
underftand even the technical terms, which his friend was
obliged to make ufe of. Upon which Mutius Scaevola could
not forbear to upbraid him with this memorable reproofs,
ft that it was a fhame for a patrician, a nobleman, and an
" orator of caufes, to be ignorant of that law in which he
" was fo peculiarly concerned." This reproach made fo
deep an impreflion on Sulpicius, that he immediately applied
himfelf to the ftudy of the law ; wherein he arrived to that [13
proficiency, that he left behind him about an hundred and
fourfcore volumes of his own compiling upon the fubjeft ;
and became, in the opinion of Cicero h , a much more com-
plete lawyer than even Mutius Scaevola himfelf.
I WOULD not be thought to recommend to our Englifli no-
bility and gentry, to become as great lawyers as Sulpicius ;
though he, together with this character, fuftained likewife
that of an excellent orator, a firm patriot, and a wife, inde-
fatigable fenator : but the inference which arifes from the
ftory is this, that ignorance of the laws of the land hath ever
been efteemed diflionourable in thofe, who are entrufted by
their country to maintain, to adminifter, and to amend them.
BUT furely there is little occafion to enforce this argu-
ment any farther to perfons of rank and diftinftion, if we
of this place may be allowed to form a general judgment
from thofe who are under our infpecYion : happy that vhile
we lay down the rule, we can alfo produce the example.
You will therefore permit your profeflbr to indulge both a
public and private fatisfaclion, by bearing this open tefti-
mony ; that, in the infancy of thefe ftudies among us, they
were favoured with the moft diligent attendance, and pur-
fued with the moft unwearied application, by thofe of the
e Ff.i.t.z. 43, Turfe e/e fatricio, ei nobili, et caufas tranti, jut In quo
verfarttur ignorari, " Brut, 41.
nobleft
13 On the STUDY INTROD.
nobleft birth and moil ample patrimony ; fome of whom
are (till the ornaments of this feat of learning ; and others
at a greater diftance continue doing honour to its inftitu-
tions, by comparing our polity and laws with thofe of other
kingdoms abroad, or exerting their fenatorial abilities in the
councils of the nation at home.
NOR will fome degree of legal knowledge be found in the
leaft fuperfluous to perfons of inferior rank : especially thofe
of the learned profeflions. The clergy, in particular, befides
the common obligations they are under in proportion to their
rank and fortune, have alfo abundant reafon, confidered
merely as clergymen, to be acquainted with many branches
of the law, which are almoft peculiar and appropriated to
themfelves alone. Such are the laws relating to adyowfons,
inftitutions, and inductions ; to fimony, and fimoniacal con-
tracts ; to uniformity, refidence, and pluralities j to tithes,
and other ecclefiaftical dues ; to marriages, (more efpecially
of late,) and to a variety of other fubjects, which are con-
iigned to the care of their order by the provifions of parti-
cular ftatutes. To underftand thefe aright, to difcern what
is warranted or enjoined, and what is forbidden by law, de-
mands a fort of legal apprehenfion ; which is no otherwife
to be acquired, than by ufe, and a familiar acquaintance
with legal writers.
FOR the gentlemen of the faculty of phyfic, I muft frankly
own that I fee no fpecial reafon, why they in particular
fhould apply themfelves to the ftudy of the Jaw, unlefs in
common with other gentlemen, and to complete the cha-
racter of general and extenfite knowledge ; a character
which their profeflion, beyond others, has remarkably de-
ferved. They will give me leave, however, to fugged, and
that not ludicroufly, that it might frequently be of ufe to
families upon fudden emergencies, if the phyfician were ac-
quainted with the doctrine of laft wills and teftaments, at
leaft fo far as relates to the formal part of their execution.
i. of the LAW. 14
BUT thofe gentlemen who intend to profefs the civil and
ecclefiaftical laws, in the fpiritual and maritime courts of
this kingdom, are of all men (next to common lawyers) the
molt indifpenfably obliged to apply themfelves ferioufly to
the ftudy of our municipal laws. For the civil and canon
laws, confidered with refpecl: to any intrinfic obligation, have
no force or authority in this kingdom ; they are no more
binding in England than our laws are binding at Rome.
But as far as thefe foreign laws, on account of fome pecu-
liar propriety, have in fome particular cafes, and in fome
particular courts, been introduced and allowed by our laws,
fo far they oblige, and no farther; their authority being
wholly founded upon that permiffion and adoption. In
which we are not fingular in our notions : for even in Hoi- [ 15
land, where the imperial law is much cultivated, and its de-
cifions pretty generally followed, we are informed by Van
Leeuwen', that " it receives its force from cuftom and the
" confent of the people either tacitly or exprefsly given : for
" otherwife (he adds) we mould no more be bound by this
" law, than by that of the Almains, the Franks, the Saxons,
" the Goths, the Vandals, and other of the ancient nations."
Wherefore, in all points in which the different fyftems depart
from each other, the law of the land takes place of the law
of Rome, whether ancient or modern, imperial or pontifical.
And, in thofe of our Englifh courts, wherein a reception has
been allowed to the civil and canon laws, if either they ex-
ceed the bounds of that reception, by extending themfelves
to other matters than are permitted to them ; or if fuch
courts proceed according to the decifions of thofe laws, in
cafes wherein it is controlled by the law of the land, the
common law in either inftance both may, and frequently
does, prohibit and annul their proceedings k : and it will not
be a fufficient excufe for them to tell the king's courts at
Weftminfter, that their practice is warranted by the laws
1 Dcdicatio ttrporit juris chili*. k Hale Hift. C. L. c. 2. Selden in
Mdit. 1663. Flelam. 5 Rep. Caudroy's cafe, a Inrt.
599-
of .
15 On the STUDY INTROD.
of Juftinian or Gregory, or is conformable to the decrees of
the Rota, or imperial chamber. For which reafon it becomes
highly neceflary for every civilian and canonift, that would
act with fafety as a judge, or with prudence and reputation
as an advocate, to know in what cafes and how far the Eng-
lifh laws have given fanction to the Roman; in what points
the latter are rejected ; and where they are both fo intermix-
ed and blended together as to form certain fupplemental parts
of the common law of England, diftinguimed by the titles of
the king's maritime, the king's military, and the king's eccle-
fiaflical law. The propriety of which inquiry the univerfity
of Oxford has for more than a century fo thoroughly feen,
that in her ftatutes l {he appoints, that one of the three quef-
tions to be annually difcufied at the act by the jurift-incep-
tors (hall relate to the common law ; fubjoining this reafon,
[ 163 " 9 u * a j tir * s civilis Jlttdiofos decet haud imperitos effe juris muni-
st cipalisy et differentia* exteri patriique juris not as habere"
And the ftatutes m of the univerfity of Cambridge fpeak ex-
prefsly to the fame effect.
FROM the general ufe and neceffity of fome acquaintance
with the common law, the inference was extremely eafy
with regard to the propriety of the prefent inftitution, in a
place to which gentlemen of all ranks and degrees refort, as
the fountain of all ufeful knowledge. But how it has come
to pafs that a defign of this fort has never before taken place
in the univerfity, and the reafon why the ftudy of our laws
has in general fallen into difufe, I mall previously proceed to
inquire.
SIR John Fortefque, in his panegyric Crt the laws of Eng-
land, (which was written in the reign of Henry the Sixth,)
puts n a very obvious queftion in the mouth of the young
Tit. VII. Sect. a. 2. f atria, ct differentia* exteri patriique
m Defter legum max a duftorutit juris nofcat. Stat. Eliz. R. c, 14, Ccnvel.
dablt operam legibus Angliue, vt nan fit Injtitut. pro'imio,
imperitut ear urn legum guat babet fua * c, 47.
prince,
r. of the LAW. 16
prince, whom he is exhorting to apply himfelf to that branch
of learning : " why the laws of England, being fo good,
" fo fruitful, and fo commodious, are not taught in the uni-
verfities, as the civil and canon laws are ?" In anfwer to
which he gives what feems, with due deference be it fpoken,
a very jejune and unfatisfactory reafon ; being, in (hort, that
" as the proceedings at common law were in his time car-
" ried on in three different tongues, the Englim, the Latin,
" and the French, that fcience muft be neceflarily taught
" in thofe three feveral languages j but that in the univerfi-
" ties all fciences were taught in the Latin tongue only ;"
and therefore he concludes, " that they could not be conve-
" niently taught or ftudied in our univerfities." But with-
out attempting to examine ferioufly the validity of this reafon,
(the very (hadow of which by the wifdom of our late con-
ftitutions is entirely taken away,) we perhaps may find out
a better, or at leaft a more plaufible account, why the ftudy
of the municipal laws has been banifhed from thefe feats
of fcience, than what the learned chancellor thought it
prudent to give to his royal pupil.
THAT ancient collection of unwritten maxims and cuf-
toms, which is called the common law, however compounded,
or from whatever fountains derived, had fubfifted imme-
morially in this kingdom ; and, though fomewhat altered and
impaired by the violence of the times, had in great meafure
weathered the rude fhock of the Norman conqueft. This
had endeared it to the people in general, as well becaufe it's
decifions were univerfally known, as becaufe it was found
to be excellently adapted to the genius of the Englim nation.
In the knowledge of this law confided great part of the learn-
ing of thofe dark ages ; it was then taught, fays Mr. Selden p ,
in the monafteries, in the univerfities y and in the families of
the principal nobility. The clergy in particular, as they then
engrofled almoft every other branch of learning, fo (like their
c. 48, P in Flttam. 7. 7.
VOL. I. C prede-
17 On the STUDY INTROD.
predecefTors the Britifli Druids q ) they were peculiarly re-
markable for their proficiency in the ftudy of the law. .N/-
lus clericus mft caujidicus^ is the character given of them foon
after the conqueft by William of Malmefbury 1 ". The judges
therefore were ufually created out of the facred order % as
was likewife the cafe among the Normans c ; and all the in-
ferior offices were fupplied by the lower clergy, which has
occalioned their fucceflbrs to be denominated clerks to this
day.
BUT the common law of England, being not committed
to writing, but only handed down by tradition, ufe, and ex-
perience, was not fo heartily relifhed by the foreign clergy ;
who came over hither in (hoals, during the reign of the con-
queror and his two fons, and were utter ftrangers to our
conftitution as well as our language. And an accident
which foon after happened, had nearly completed it's ruin.
A copy of Juftinian's pande&s, being newly u difcovered at
C 18 ] Amalfi, foon brought the civil law into vogue all over the
weft of Europe, where before it was quite laid afide w and in
a manner forgotten ; though fome traces of it's authority re-
mained in Italy 1 and the eaftern provinces of the empire y .
This now became in a particular manner the favourite of
the popifh clergy, who borrowed the method and many of
the maxims of the canon law from this original. The ftudy
of it was introduced into feveral univerfities abroad, particu-
larly that of Bologna j where exercifes were performed, lec-
tures read, and degrees conferred in this faculty, as in other
branches of fcience : and many nations on the continent, juft
then beginning to recover from the convulsions confequent
4 Czfar de bello Gal. 6. 12. dignlttz In faiaBe tglifci ; lej allez, Its
r De gejl. reg. I. 4, fri
Dugdale Orig. juriJ. c. 8.
1 Le, ju^ts font fages ferfonne, et
autentiquct, fuonc let arcbe<vefijuts,
catbt-
draulx, et Us autrcs fer/onnts qui ont
evefquci, let cbanolna des cglife*
cvnvcntaulx, et let guu-veratxrs
flij'et, &c. Grand Coujlumier, cb. 9.
Clrc.A.D. 1130.
LL. Wif.gotb. ^. i. 9.
Capitular. Hludov. Pit. 4. IO2.
Selden in Fletam. j, 5.
% upon
i. oftbeLAw. iB
upon the overthrow of the Roman empire, and fettling by
degrees into peaceable forms of government, adopted the
civil law, (being the beft written fyftem then extant,) as the
bafis of their feveral conftitutions ; blending and interweav-
ing it among their own feodal cuftoms, in fome places with
a more extenfive, in others a more confined authority 2 .
NOR was it long before the prevailing mode of the times
reached England. For Theobald, a Norman abbot, being
elected to the fee of Canterbury 1 , and extremely addicted to
this new ftudy, brought over with him in his retinue many
learned proficients therein ; and among the reft Roger fir-
named Vacarius, whom he placed in the Univerfity of Ox-
ford b , to teach it to the people of this country. But it did
not meet with the fame eafy reception in England, where a
mild and rational fyftem of laws had been long eftablimed,
as it did upon the continent ; and though the monkifh clergy
(devoted to the will of a foreign primate) received it with
eagernefs and zeal, yet the laity, who were more interefted
to preferve the old conftitution, and had already feverely felt
the e-ffet of many Norman innovations, continued wedded
to the ufe of the common law. King Stephen immediately
publifhed a proclamation , forbidding the ftudy of the laws, [ 19 ]
then newly imported from Italy ; which was treated by the
monks d as a piece of impiety, and thougli it might prevent
the introduction of the civil law procefs into our courts of
juftice, yet did not hinder the clergy from reading and
teaching it in their own fchools and monafteries.
FROM this time the nation feems to have been divided into
two parties; the bifhops and clergy, many of them foreigners,
z Domat's treatife of law, c . 1 8. 9. c Rog. Bacon, eitat. fer Selden In
Epijlol. Innocent IV. in M. Paris ad Flctam. 7. 6. In Fortefc. c. 33. & 8 Rep.
x4.-D.Uj4. I'ref.
a A.D. 1138. <J Joan. Sariflnuiens. Polytrat. 8.
5 Gervaf. Dorobern. Ai. Pgntlf. 22.
Cantuar. col. 1665.
C 2 who
ip On the STUDY INT ROD.
who applied themfelves wholly to the iludy of the civil and
canon laws, which now came to be infeparably interwoven
with each other ; and the nobility and laity, who adhered
with equal pertinacity to the old common law : both of them
reciprocally jealous of what they were unacquainted with,
and neither of them perhaps allowing the oppofite fyftem
that real merit which is abundantly to be found in each (2).
This appears, on the one hand, from the fpleen with which
the monadic writers 6 fpeak of our municipal laws upon all
occafions ; and on the other, from the firm temper which the
nobility (hewed at the famous parliament of Merton : when
the prelates endeavoured to procure an act, to declare all
baftards legitimate in cafe the parents intermarried at any
time afterwards; alleging this only reafon, becaufe holy
church (that is, the canon law) declared fuch children legi-
timate : but " all the earls and barons (fays the parliament
" roll*) with one voice anfwered, that they would not change
" the laws of England, which had hitherto been ufed and
" approved." And we find the fame jealoufy prevailing
above a century afterwards *, when the nobility declared
with a kind of prophetic fpirit, " that the realm of England
" hath never been unto this hour, neither by the confent of
<f our lord the king and the lords of parliament ihall it ever
[ 20 ] " be, ruled or governed by the civil law h ." And of this
' Joan. Sarilburiens. Polycrat. 5. 16. gliat mufare, quai bucufqut ufttatae
Poly dor. Virgil. Hift.l.f). funt et approbatae.
f Slat. Merton. 4O Hen. III. c. 9. *' U Ric. II.
t omnes comitet et barones una voce h Selden. Jan, Anglof. /. 2. 43<
reffcM/erunt, quod nolunt leges An- in Fortefc. c. 33.
( 2 ) Though the civil laws, in matters of contract and the gene-
ral commerce of life, may be founded in principles of natural and
univerfal juftice, yet the arbitrary and defpotic maxims which re-
commended it as a favourite to the pope and Romifh clergy
rendered it defervedly odious to the people of England. Quod
principi placuit legis halet vigor em (Inft. I. 2. 6.), the magna chart a
of the civil law, could never be reconciled with the judicium pa-
rlum vel lex terra.
temper
i. of the LAW. 20
temper between the clergy and laity many more inftances
might be given.
WHILE things were in this fituation, the clergy, finding
it impoffible to root out the municipal law, began to with-
draw themfelves by degrees from the temporal courts ; and
to that end, very early in the reign of King Henry the third,
epifcopal conftitutions were publiftied 1 , forbidding all eccle-
fiaftics to appear as advocates inforo faeculari : nor did they
long continue to act as judges there, not caring to take the
oath of office which was then found neceflary to be admini-
ftered, that they fhould in all things determine according to
the law and cuftom of this realm k ; though they ftill kept
pofieffion r of the high office of chancellor ; an office then
of little juridical power j and afterwards as it's bufinefs in-
creafed by degrees, they modelled the procefs of the court
at their own difcretion.
BUT wherever they retired, and wherever their authority
extended, they carried with them the fame zeal to introduce
the rules of the civil, in exclufion of the municipal law. This
appears in a particular manner from the fpiritual courts of
all denominations, from the chancellor's courts in both our
univerfities, and from the high court of chancery before men-
tioned ; in all of which the proceedings are to this day in a
courfe much conformed to the civil law: for which no toler-
able reafon can be affigned, unlefs that thefe courts were
all under the immediate direction of the popifh ecclefiaftics,
among whom it was a point of religion to exclude the muni-
cipal law; Pope Innocent the fourth having forbidden ' the
very reading of it by the clergy, becaufe its decifions were not
founded on the imperial conftitutions, but merely on the cuf-
toms of the laity. And if it be confidered, that our univer-
fities began about that period to receive their prefent form of
1 Spelman. Condi. A. D. 1417. k Selden in Fletam. 9. 3.
Wilkins, vol. I, p. 574. 599. ' M. Paris ad A. D. 1454.
C 3 fcholaftic
20 On the STUDY INTROD.
fcholaftic difcipline : that they were then, and continued to
be till the time of the reformation, entirely under the influ-
ence of the popifti clergy; (Sir John Mafon the firft proteft-
ant, being alfo the firft lay, chancellor of Oxford;) this will
lead us to perceive the reafon, why the iludy of the Roman
laws was in thofe days of bigotry" 1 purfued with fuch alacrity
in thefe feats of learning : and why the common law was
entirely defpifed, and efteemed little better than heretical.
AND, fince the reformation, many caufes have confpired
to prevent its becoming a part of academical education. As,
firft, long ufage and eftablifhed cuftom ; which^ as in every
thing elfe, fo efpecially in the forms of fcholaftic exercife,
have juftly great weight and authority. Secondly, the real
intrinfic merit of the civil law, confidered upon the footing
of reafon and not of obligation, which was well known to
the inftru&ors of our youth ; and their total ignorance of the
merit of the common law, though it's equal at leaft, and per-
haps an improvement on the other. But the principal rea-
fon of all, that has hindered the introduction of this branch
of learning, is, that the ftudy of the common law, being ba-
nifhed from hence in the times of popery, has fallen into a
m There cannot be a ftronger inftance " j"Jlw> 3* fapientem ; fecundo, quod
of the abftird and fuperftitious venera- " contra ad-verfarium aflutum 13* faga-
tion that was paid to thefe laws, than " cem ; tertio, quod in caufa defperata :
that the moft learned writers of the " fed beatijjima virgo, contra judicem
times thought they could npt form A per- " fafientijimum, Dominuat ; centra
feel character even of the blefFed virgin, " adverfarium callidijfiaium, dyabo-
without making lier a civilian and a " turn ; in caufa nojlra defperata ; fen.
carionift ; which Albertus Magnus, the " tentiam optatam obtinuit" To which
renowned dominican doftor of the thir- an eminent francilcan, two centuries
teenth century, thus proves in his Summa afterwards, BernarcJinus de Bufti, (Ma-
de laudilms cbr'ifliferae -virginii (di-vi- riale, part 4. feral. 9.) very gravely fub-
num magis qtiam bumanum opus) joins this note : " Nee "videtur incon-
qu. 23. 5. " Item quod jura dvilia, " gruum mulicrei lalere peritiam ju-
c' 15* leges, ?5* dccreta fciiiit in fummo, " ris. Legitur enhn de uxore Joannis
" probatur hoc modo ; fapicntta advo- " Andreac gloffatoris, quod tantam
" cati manifejlatur in tribus ; unum, " peritiam in utroque jure babuit, tit
" quod obtineat omnia contra judicem " publicc in fibolis legire aufafit.
quite
K of the LAW. 21
quite different channel, and has hitherto been wholly culti-
vated in another place. But as the long ufage and eftablifhed
cuftom, of ignorance of the laws of the land, begin now to
be thought unreafonable ; and as by thefe means the merit
of thofe laws will probably be more generally known ; we [ 22 ]
may hope that the method of ftudying them will foon revert
to its ancient courfe, and the foundations at leaft of that
fcience will be laid in the two univerfities ; without being
exclufively confined to the channel which it fell into at the
times I have juft been defcribing.
FOR, being then entirely abandoned by the clergy, a few
ftragglers excepted, the ftudy and practice of it devolved of
courfe into the hands of laymen : who entertained upon their
parts a moft hearty averfion to the civil law", and made no
fcruple to profefs their contempt, nay even their ignorance
of it, in the mod public manner. But ftill as the balance
of learning was greatly on the fide of the clergy, and as the
common law was no longer taught^ as formerly, in any part
of the kingdom, it muft have been fubjected to many incon-
veniences, and perhaps would have been gradually loft and
overrun by the civil, (a fufpicion well juftified from the fre-
quent tranfcripts of Juftinian to be met with in Bratton and
Fleta,) had it not been for a peculiar incident, which hap-
pened at a very critical time, and contributed greatly to its
fupport.
n Fortefc- de laud. LL. c, 15. prejudice of more antient ones was pro-
This remarkably appeared in the hibited. But Skipwith the king's fer-
cafe of the abbot of Torum, M. az jeant, and afterwards chief baron of the
Edw.III. 24. who had caufed a cer- Exchequer, declares them to be flat
tain prior to be fummoned to anfwer at nonfenfe : " in ceux parelx, contra in-
Avignon for erecting an oratory contra " hibitionem novi operis ny ad fas en-
*nbititianem novi oferis ; by which words " tendment :" and juftice Schardelow
Mr. Selden (in Flet. 8. 5.) very juftly mends the matter but little by inform-
underftands to be meant the title de now ing him, that they fignify a reftitution in
operis nuntiationc both in the civil and tbelrla-w: forwhich reafon he very fagely
canon laws, (Ff. 39. i. C. 8. n. and relblvesto pay no fort of regard to then^
Decretal, not Extrav. 5. 31.) whereby Ceo n\J} que an rejlitution en leur ley,
the eredion of any new buildings in " fur que a ceo navemut regard, &c."
C 4 THE
22 On the STUDY INTROD*
THE incident which I mean was the fixing the court of
common pleas, the grand tribunal for difputes of property,
to be held in one certain fpot; that the feat of ordinary juftice
might be permanent and notorious to all the nation. For-
merly that, in conju&ion with all the other fuperior courts,
[ 23 ] was held before the king's capital judiciary of England, in
the aula regts, or fuch of his palaces wherein his royal perfon
refided ; and removed with his houfehold from one end of
the kingdom to the other. This was found to occafion great
inconvenience to the fuitors ; to remedy which it was made
an article of the great charter of liberties, both that of King
John and King Henry the third p , that ' common pleas fhould
" no longer follow the king's court, but be held in fome
" certain place:" in confequence of which they have ever
Cnce been held (a few neceflary removals in times of the
plague excepted) in the palace of Weftminfter only. This
brought together the profeflbrs of the municipal law, who
before were difperfed about the kingdom, and formed them
into an aggregate body ; whereby a fociety was eftablifhed of
perfons, who, (as Spelman q obferves,) addicting themfelves
wholly to the ftudy of the laws of the land, and no longer
confidering it as a mere fubordinate fcience, for the amufe-
ment of leifure hours, foon raifed thofe laws to that pitch of
perfection, which they fuddenly attained under the aufpices
of our Englifh Juftinian, king Edward the firft.
IN confequence of this lucky aflemblage, they naturally
fell into a kind of collegiate order; and, being excluded from
Oxford and Cambridge, found it neceflary to eftablifh a new
univerfity of their own. This they did by purchafing at va-
rious times certain houfes (now called the inns of court and
of chancery) between the city of Weftminfter, the place of
holding the king's courts, and the city of London, for ad-
vantage of ready accefs to the one, and plenty of provifions
in the other r . Here exercifes were performed, lectures
p ( xx. q Gh/ar. 334. ' Fortefc. c. 4 8.
read,
i. of ihe LAW. 23
read, and degrees were at length conferred in the common
law, as at other univerfities in the canon and civil. The de-
grees were thofe of barrifters (firft ftiled apprentices s from
apprendre, to learn) who anfwered to our bachelors : as the 24 ]
ft ate and degree of a ferjeant *, fervientis ad legem, did to that
of doctor.
THE crown feems to have foon taken under its protection
this infant feminary of common law ; and the more effectu-
ally to fofter and cherifti it, king Henry the third, in the nine-
teenth year of his reign, iffued out an order directed to the
mayor and meriffs of London, commanding that no regent
of any law fchools 'within that city fliould for the future teach
law therein ". The word, law, or Ieges y being a general term,
may create fome doubt at this diftance of time, whether the
teaching of the civil law, or the common, or both, is hereby
reftrained. But in either cafe it tends to the fame end. If
the civil law only is prohibited, (which is Mr. Selden's w opi-
nion,) it is then a retaliation upon the clergy, who had ex-
s Apprentices or barrifters feem to being called to account for his ereat
have been firft appointed by an ordi- knavery and malpractices, claimed the
nance of king Edward the firft in par- benefit of his orders or clergy, which till
liament, in the aoth year of his reign, then remained an entire fecret; and to
(Spelm. Glojf. 37. Dugdale, Orig. that end voluit ligamenta coifae fuae
Jurid. 55.) fol-vcre ut palam tnonjlraret fe tonfuram
' The firft mention which I have met babere clericaltm ; fed non eft per-
wilh in our law hooks of ferjeants or mijjus. Satelles vero eum arrlfieni,
counters, is in the ftatute of Weftm. I. non per coifae ligamina fed per guttur
3 Ed. I. c. 29. and in Horn's Mirror, eum apprebendens, traxit ad carcerem.
c.i. 10. c. z. 5. 0.3. I. in the And hence firH.Spelman conjectures
fame reign. But M. Paris, in his life of (Gloffar. 335.) that coifs were intro-
John II. abbot of St. Albans, which he duced to hide the tonfure of fuch rene-
wrote in 1255, 30 Hen. III. fpeaks of gade clerks as were ftill tempted to
advocates at the common law, or count- remain in the fecular courts in the
ors, (quot band narratores -vulgariter quality of advocates or judges, notwith-
afptllamus] as of an order of men well (landing their prohibition by canon,
known. And we have an example of the u Ne aliquit fcbolas ngens de leglbvs
antiquity of the coif in the fame author's in eadem ci-vitate dc cattero ibidem leges
hiftory of England, A. D. 1259, in the doccat.
cafe of one William de Bufly, who w in Flet. 8. 2.
eluded
14 On the STUDY INT ROD,
eluded the common law from their feats of learning. If the
municipal law be alfo excluded in the reftrittion, (as Sir Ed-
ward Coke x underftands it, and which the words feem to
import,) then the intention is evidently this ; by preventing
private teachers within the walls of the city, to collet!: all the
common lawyers into the one public univerfity, which was
newly inftituted in the fuburbs.
[ 25 ] IN this juridical univerfity (for fuch it is infifted to have
been by Fortefcue * and fir Edward Coke *) there are two
forts of collegiate houfes j one called inns of chancery, in
which the younger ftudents of the law were ufually placed,
" learning and ftudying," fays Fortefcue a , " the originals, and
" as it were the elements of the law ; who, profiting therein
" as they grew to ripenefs, fo were they admitted into the
" greater inns of the fame ftudy, called- the inns of court."
And in thefe inns of both kinds, he goes on to tell us, the
knights and barons, with other grandees and noblemen of the
realm, did ufe to place their children, though they did not
defire to have them thoroughly learned in the law, or to get
their living by its practice : and that in his time there were
about two thoufand ftudents at thefe feveral inns, all of whom
he informs*us were filii nobilium y or gentlemen born.
HENCE it is evident, that (though under the influence of
the monks our univerfities neglected this ftudy, yet) in the
time of Henry the fixth it was thought highly neceflary, and
was the univerfal practice, for the young nobility and gentry
to be inftructed in the originals and elements of the laws.
But by degrees this cuftom has fallen into difufe ; fo that in
the reign of queen Elizabeth fir Edward Coke b does not
reckon above a thoufand ftudents, and the number at prefent
is very confiderably lefs. Which feems principally owing
to thefe reafons : firft, becaufe the inns of chancery being
x ^ Inft. proem. z 3 Rep. pref. " 3 Rep. pref.
i. of the LAW. 25
now almoft totally filled by the inferior branch of the pro-
feflion, are neither commodious nor proper for the refort of
gentlemen of any rank or figure ; fo that there are very
rarely (3) any young ftudents entered at the inns of chancery ;
fecondly, becaufe in the inns of court all forts of regimen
and academical fuperintendence, either with regard to morals
or ftudies, are found impracticable, and therefore entirely
neglected : laftly, becaufe perfons of birth and fortune, after
having finifhed their ufual courfes at the univerfities, have
feldom leifure or refolution fufficient to enter upon a new [ 26 ]
fcheme of ftudy at a new place of inftruction. Wherefore
few gentlemen now refort to the inns of court, but fuch for
whom the knowledge of practice is abfolutely neceflary ;
fuch I mean as are intended for the profeffion : the reft of
our gentry (not to fay our nobility alfo) having ufually re-
tired to their eftates, or vifited foreign kingdoms, or entered
upon public life, without any inftruction in the laws of the
land, and indeed with hardly any opportunity of gaining
inftruction, unlefs it can be afforded them in thefe feats of
learning.
AND that thefe are the proper places for affording affift-
ances of this kind to gentlemen of all ftations and degrees,
cannot (I think) with any colour of reafon be denied. For
not one of the objections which are made to the inns of
( 3 ) The inns of court are, the Inner Temple, Middle Temple,
Lincoln's Inn, and Gray's Inn, from which focieties alone
ftudents are called to the bar. The inns of chancery are, Clifford's
Inn, Clement's Inn, Lion's Inn, New Inn, Furnival's Inn,
Thavies's Inn, Staple's Inn, and Barnard's Inn. Thefe are fubor-
dinate to the inns of court ; the three firft belong to the Inner
Temple, the fourth to the Middle Temple, the two next to
Lincoln's Inn, and the two laft to Gray's Inn. (Dug. Orig. Jurid.
320. & paffim.} Gentlemen are never entered at prefent in the
inns of chancery with an intention of being called to the bar, for
admiffion there would now be of no avail with regard to the time
and attendance required by the inns of court.
court
a6 On the STUDY INTROD,
court and chancery, and which I have juft now enumerated,
will hold with regard to the univerfities. Gentlemen may
here affociate with gentlemen of their own rank and degree.
Nor are their conduct and ftudies left entirely to their own
difcretion: but regulated by a difcipline fo wife and exact,
yet fo liberal, fo fenfible, and manly, that their conformity
to its rules (which does at prefent fo much honour to our
youth) is not more the effect of conftraint than of their own
inclinations and choice. Neither need they apprehend too
long an avocation hereby from their private concerns and
amufements, or (what is a more noble object) the fervice of
their friends and their country. This ftudy will go hand in
hand with their other purfuits : it will obftruct none of them 9
it will ornament and affift them all.
BUT if, upon the whole, there are any ftill wedded to mo-
naftic prejudice, that can entertain a doubt how far this ftudy
is properly and regularly academical, fuch perfons I am afraid
either have not confidered the conftitution and defign of an
univerfity, or elfe think very meanly of it. It muft be a de-
plorable narrownefs of mind, that would confine thefe feats
of inftruction to the limited views of one or two learned
profeflions. To the praife of this age be it fpoken, a more
27 ] open and generous way of thinking begins now univerfally
to prevail. The attainment of liberal and genteel accom-
plifhments, though not of the intellectual fort, has been
thought by our wifeft and moft affectionate patrons c , and
very lately by the whole univerfity d , no fmall improvement
of our ancient plan of education : and therefore I may fafely
c Lord chancellor Clarendon, in his d By accepting in full convocation
dialogue of education, among his tradts, the remainder of Lord Clarendon's
p. 3*J. appears to have been very foli- hiftory from his noble defendants, on
citous, that it might be made " a part condition to apply the profits arifmg
of the ornamenl of our learned aca- from its publication to the eftnblifliment
demies to teach the qualities of of a manege in the uuiverfity.
riding, dancing, and fencing, at thofe
hours when more ferious exercifes
fhould be intermitted."
affirm
i. of the LAW. 27
affirm that nothing (how unufual foever) is, under due regu-
lations, improper to be taught in this place, which is proper
for a gentleman to learn. But that a fcience, which diftin-
guifhes the criterions of right and wrong j which teaches to
eftablifh the one, and prevent, punifti, or redrefs the other ;
which employs in its theory the nobleft faculties of the foul,
and exerts in its practice the cardinal virtues of the heart ;
a fcience, which is univerfal in its ufe and extent, accommo-
dated to each individual, yet comprehending the whole com-
munity ; that a fcience like this mould ever have been deemed
unneceflary to be ftudied in an univerfity, is matter of afto-
nifhment and concern. Surely, if it were not before an ob-
ject of academical knowledge, it was high time to make it
one : and to thofe who can doubt of the propriety of its re-
ception among us, (if any fuch there be,) we may return an
anfwer in their own way, that ethics are confefledly a branch
of academical learning ; and Ariftotle himfelf has faid, fpeak-
ing of the laws of his own country, that jurifprudence, or
the knowledge of thofe laws, is the principal and moft per-
fect branch of ethics 6 .
FROM a thorough conviction of this truth, our munificent
benefactor, Mr. VINER, having employed above half a cen-
tury in amaffing materials for new modelling and rendering
more commodious the rude ftudy of the laws of the land, con-
figned both the plan and execution of thefe his public-fpirited [ 28 ]
defigns to the wifdom of his parent univerfity. Refolving to
dedicate his learned labours " to the benefit of pofterity and
" the perpetual fervice of his country f ," he was fenfible he
could not perform his refolution in a better and more effec-
tual manner, than by extending to the youth of this place,
thofe afliftances of which he fo well remembered and fo
heartily regretted the want. And the fenfe which the uni-
verfity has entertained of this ample and moft ufeful bene-
e TsXt/a (tiaX/ra ttgtrti, eri >ns ft- f See the preface to the eighteenth
>./{ a/prut wins tfi, Ethic, ad volume of his abridgment.
Nicomach. /.j. c. 3.
fadion,
8 On the STUDY INTROD.
faction, muft appear, beyond a doubt, from their gratitude
in receiving it with all poflible marks of efteem 6 ; from
their alacrity and unexampled difpatch in carrying it into
execution h ; and, above all, from the laws and conftitutions
by which they have effectually guarded it from the neglet
and abufe to which fuch inftitutions are liable '. We have
B Mr. Viner is enrolled among the a THAT a profeflbrfhip of the laws
public benefadors of the univerfity by of England be eftablifhed, with a falary
decree of convocation. of two hundred pounds per annum ; the
h Mr. Viner died June 5, 1756. His profeflbr to be elected by convocation,
efteds were collected and fettled, near and to be at the time of his eledion at
a volume of his work printed, almoft lead a mafter of arts or bachelor of civil
the whole difpofed of, and the accounts law in the univerfity of Oxford, of ten
made up in a year and a half from his years Handing from his matriculation ;
deceafe, by the very diligent and worthy and alfo a barrider at law of four years
adminiftrators with the will annexed, {landing at the bar.
(Dr. Weft and Dr. Good of Magdalene, '3. THAT fuch profeffor (by himfelf,
Dr. Whalley of Oriel, Mr. Buckler of or by deputy to be previoufly approved
All Souls, and Mr. Betts of Univerfity by convocation) do read one folemn
college,) to whom that care was confign- public ledure on the laws of England,
ed by the univerfity. Another half year and in the Englifh language, in every
was employed in confidering and fettling academical term, nt certain ftated times
a plan of the propofed inftitution, and previous to the commencement of the
in framing the ftatutes thereupon, which common law term; or forfeit twenty
\fere finally confirmed by convocation pounds for every omiflion to Mr. Vi-
on the 3d of July 1758. The profeffor ner's general fund ; and alfo (by him-
was elefted on the aoth of Odober fol- felf, or by deputy to he approved, if
lowing, and two fcholars on the fuc- occafional, by the vice-chancellor and
ceeding day. And , laftly,it was agreed prodors ; or, if permanent, both the
at the annual audit in 1761, to eftablifh caufe and the deputy to be annually ap-
afellowfhip; and a fellow was accord- proved by convocation) do yearly read
ingiy eleded in January following. one complete courfe of ledures on the
The refidue of this fund, arilin^ from Luvs of England, and in the Englilh Ian.
the fale of Mr. Viner's abridgment, will guage, -confiding of fixty ledures at the
probably be fufficient hereafter to found leall; to be read during the univerfity
another fellowfhip and fcholarfhip, or term time, with fuch proper intervals
three more fcholarfhips, as fhall be that not more than four ledures may
thought mod expedient. fall within any fingle week : that the
1 THE ftatutes are in fubftance as profefTor do give a month's notice cf
follows. . the time when the courfe is to begin,
I. THAT the accounts (f tl is Kne- and to read gratis to the fcholnrs of Mr.
fadion be feparately kept, and annually Viner's foundation ; but may demand of
audited by the delegates of accounts other auditors fuch gratuity as fhall be
and profeffor, and afterwards reported fettled from time to time by decree of
to convocation. convocation ; and that for every of the
laid
of the LAW.
28
feen an univerfal emulation, who beft fhould underftand, or
moft faithfully purfue, the defigns of our generous patron : C 2 9
faid fixty lectures omitted, the profeflbr,
on complaint made to the vice-chancel-
lor within the year, do forfeit forty mil-
lings te Mr. Viner's general fund ; the
proof of having performed his duty to
lie upon the faid profeflbr.
4. THAT every profeflbr do continue
in his office during life, unless in cafe of
fuch mifbehaviour as (hall amount to
bannition by the untverfity ftatutes ; or
unlefs he deferts the profefiion of the
law by betaking himfelf to another pro-
feilion; or unlefs after one admonition
by the vice-chancellor and proctors for
notorious neglect, he is guilty of another
flagrant omillion ; in any of which cafes
he (hall be deprived by the vice-chancel-
lor, with confent of the houfe of con-
vocation.
5. THAT fuch a number of fellovv-
fliips with a (Upend of fifty pounds per
annum, and fcholarfliip, with a ftipend
of thirty pounds, be eftablithed, as the
convocation mail from time to time
ordain, according to the ftate of Mr.
Viner's revenues.
6. THAT every fellow be elected by
convocation, and at the time of eledtion
be unmarried, and at lead a mafter of
arts or bachelor of civil law, and a
member of Ibme college or hall in the
univerfity of Oxford ; the fcholars of this
foundation, or fuch as have been fcholars,
(if qualified and approved of by convo-
cation,) to have the preference : that if
not a barrifter when chofen, he be called
to the bar within one year after his
election ; but do refide in the umverfity
two months in every year, or in cafe of
non-refidence do forfeit the ftipend of
that year to Mr. Viner's general fund.
7. THAT every fcholar be elected by
convocation, and at the time of election
be unmarried, and a member of fome
college or hall in the univerfity of Ox-
ford, who (hall have been matriculated
twenty-four calendar months at the leaft ;
that he do take the degree of bachelor of
civil law with all convenient speed (either
proceeding in arts or otherwife) ; and
previous to his taking the fame, between
the fecond and eighth year from his
matriculation, be bound to attend two
courfes of the profeflbr 's lectures, to be
certified under the profeflTor's hand ; and
within one year after taking the fame to
be called to the bar; that he do annually
refide fix months till he is of four years
ftanding, and four months from that
time till he is mafter of arts or bachelor
of civil law ; after which he be bound
to refide two months in every year; or,
in cafe of non-refidence, do forfeit the
ftipend of that year to Mr. Viner's
general fund.
8. THAT the icholarfliips do become
void in cafe of non-attendance on the
profeflbr, or not taking the degree of
bachelor of civil law, being duly adtno-
nilhed fo- to do by the 'vice-chancellor
and proctors ; and that both fellowftiips
and fcholarfhips do expire at the end of
ten years after each refpective election;
and become void in cafe of grofs mif-
behaviour, non-refidence for two years
together, marriage, not being called to
the bar within the time before limited,
(being duly admouifhed fo to be by the
vice-chancellor and proctors,) or defert-
ing the profeflion of the law by following
any other profeflion : and that in any of
thefe cafes the vice-chancellor, with con-
fent of convocation, do declare the place
actually void.
9. THAT in cafe of any vacancy of
the profeflbrfliip, fellowftiips, or fcho-
larfhips,
29 On the STUDY INTROD.
and with pleafure we recoiled, that thofe who are moft
[ 30 ] diftinguiftied by their quality, their fortune, their ftation,
their learning, or their experience, have appeared the moft
zealous to promote the fuccefs of Mr. Viner's eftablifh-
ment.
THE advantages that might refult to the fcience of the
law itfelf, when a little more attended to in the feats of
knowledge, perhaps would be very confiderable. The lei-
fure and abilities of the learned in thefe retirements might
either fuggeft expedients, or execute thofe dictated by wifer
heads k , for improving it's method, retrenching it's fuper-
fluities, and reconciling the little contrarieties, which the
practice of many centuries will neceflarily create in any hu-
man fyftem; a talk, which thofe, who are deeply employed
in bufinefs and the more active fcenes of the profeffion,,can
hardly condefcend to engage in. And as to the intereft, or
(which is the fame) the reputation of the univerfities them-
felves, I may venture to pronounce, that if ever this ftudy
(hould arrive to any tolerable perfection either here or at
Cambridge, the nobility and gentry of this kingdom would
not fliorten their refidence upon this account, nor perhaps
entertain a worfe opinion of the benefits of academical edu-
cation. Neither mould it be confidered as a matter of light
importance, that while we thus extend the pomoeria of uni-
verfity learning, and adopt a new tribe of citizens within
foil thefe philofophical walls, we intereft a very numerous, and
very powerful profeffion in the prefervation of our rights and
revenues.
larfliips, the profits of the current year tcltil. And that before any con vocaticn
be rateably divided between the prede- fliall be held for fuch ele&ion, or for any
ce(Tor,or his representatives, and the fuc- other matter relating to Mr.Vincr's he-
ceflbr; and that a new election be had nefaclion, ten days' public notice be given
within one month afterwards, unlefs by to each college and hall of the convoca-
that means the time of election (hall fall tion, and the caufe of convoking it.
within any vacation, in which cafe it be k See Lord Bacon's propofals and
deferred to the firft week in the next full offer of a digeft.
FOR
i. of the LAW. 3*
FOR ! I think it pad difpute that thofe gentlemen, who
refort to the inns of court with a view to purfue the pro-
feffion, will find it expedient (whenever it is practicable) to
lay the previous foundations of this, as well as every other
fcience in one of our learned univerfities. We may appeal
to the experience of every fenfible lawyer, whether any thing
can be more hazardous or difcouraging than the ufual en-
trance on the ftudy of the law. A raw and unexperienced
youth, in the moft dangerous feafon of life, is tranfplanted
on a fudden into the midft of allurements to pleafure, with-
out any reftraint or check but what his own prudence can
fuggeft ; with no public direction in what courfe to purfue
his inquiries ; no private affiftance to remove the diftrefles
and difficulties which will always embarrafs a beginner. In
this fituation he is expected to fequefter himfelf from the
world, and by a tedious lonely procefs to extract the theory
of law from a mafs of undigefted learning ; or elfe by an
afliduous attendance ont he courts to pick up theory and
practice together, fufficient to qualify him for the ordinary
run of bufmefs. How little therefore is it to be wondered at
that we hear of fo frequent mifcarriages ; that fo many gen-
tlemen of bright imaginations grow weary of fo unpromifing a
fearch 1 , and addict themfelves wholly to amufements, or other
lefs innocent purfuits; and that fo many perfons of moderate
capacity confufe themfelves at firft fetting out, and continue
ever dark and puzzled during the remainder of their
lives !
THE evident want of tome affiftance in the rudiments of
legal knowledge has given birth to a practice, which, if ever
it had grown to be general, muft have proved of extremely
1 Sir Henry Spelman, in the preface " femque Unguant peregrlnam, dia-
to his Gloflary, has given us a very lively " leffuat barbaram, metbodum incon-
pifture of his own diftrefs upon this OC- cinnam, molem non ingentem folum
cafion. " Emijtt me mater Londiitum t " fed perf etuis lumcrit fujliitendam,
" juris noftri cape/tndi gratia; cujus " excuiit mili (fateor) animus" &c.
" cum vejtibulum falutajfcm, reperif-
VOL. I. D pernicious
32 On the STUDY INTROD.
pernicious confequence. I mean the cuftom by ibme fo very
warmly recommended, of dropping all liberal education, as of
no ufe to ftudents in the law : and placing them, in it's
(lead, at the defk of fome fkilful attorney , in order to
initiate them early in all the depths of practice, and render
them rhore dexterous in the mechanical part of bufinefs. A
few inftances of particular perfons (men of excellent learn-
ing, and unblemifhed integrity) who, in fpite of this method
of education, have (hone in the foremoft ranks of the bar,
have afforded fome kind of fanction to this illiberal path to
the profeffion, and biafied many parents, of fhort-fighted
judgment, in it's favour : not confidering that there are fome
geniufes, formed to overcome all difadvantages, and that
from fuch particular inftances no general rules can be formed ;
nor obferving, that thofe very perfons have frequently re-
commended, by the moft forcible of all examples, the dif-
pofal of their own offspring, a very different foundation of
legal ftudies, a regular academical education. Perhaps too,
in return, I could now direft their eyes to our principal feats
of juftice, and fuggeft a few hints in favour of univerfity
learning" 1 : but in thefe all who hear me, I know, have al-
ready prevented me.
MAKING therefore due allowance for one or two mining
exceptions, experience may teach us to foretell that a lawyer
thus educated to the bar, in fubfervience to attornies and
folicitors", will find, he has begun at the wrong end. If
practice be the whole he is taught, practice muft alfo be the
m The four higheft judicial offices Church; and the fourth, a fellow of
were at that time filled by gentlemen, Trinity college, Cambridge (4).
two of whom had been fellows of All " See Rennet's Life of Somner,
Souls college ; another, ftudent of Chrift p. 67.
(4) The firft two were, Lord Northington and Lord Chief
Juftice Willes ; the third, Lord Mansfield ; and the fourth, Sir
Thomas Clarke, Mafter of the Rolls.
whole
i. of the LAW. 31
whole he will ever know j if he be uninftrufted in the ele-
ments and firft principles upon which the rule of practice is
founded, the leaft variation from eftablifhed precedents will
totally diftraft and bewilder him : ita lex fcripta eft is the
utmoft his knowledge will arrive at : he muft never afpire
to form, and feldom expert to comprehend, any arguments
drawn a> priori, from the fpirit of the laws, and the natural
foundations of juftice.
NOR is this all ; for, (as few perfons of birth or fortune, [ 33 ]
or even of fcholaftic education, will fubmit to the drudgery
of fervitude, and the manual labour of copying the trafli of ah
office,) fhould this infatuation prevail to any confiderable de-
gree, we muft rarely expect to fee a gentleman of diftinfton
or learning at the bar. And what the confequence may be,
to have the interpretation and enforcement of the laws
(which include the entire difpofal of our properties, liberties,
and lives) fall wholly into the hands of obfcure or illiterate
men, is matter of very public concern (5).
Ff. 40. 9. 12.
(5 ) The learning, which of late years has diftinguifhed the bar,
leaves little reafon to apprehend that fuch will fpeedily be the
degraded ftate of the laws of England. Our author's labours and
example have contributed in no inconfiderable degree to refcue the
profeffion from the reproaches of Lord Bolingbroke, whofe fenti-
ments upon the education of a barrifter, correspond fo fully with
thofe of the learned judge, that they deferve to be annexed to this
elegant diflertation on the ftudy of the law.
" I might inftance (fays he), in other profeffions, the obligation
men lie under of applying to certain parts of hiftory ; and I can
hardly forbear doing it in that of the law, ink's nature the nobleft
and mod beneficial to mankind ; in it's abufe and debafement the
moft fordid and the moft pernicious. A lawyer now is nothing
more, I fpeak of ninety-nine in a hundred at leaft, to ufe fome of
Tully's words, nifi leguleius quldem cautus, et acuttts prxco afiionum,
cantor formularum, aucept fyllabarum. But there have been lawyers
D 2 that
33 On the STUDY INTROD.
THE inconveniences here pointed out can never be effec-
tually prevented, but by making academical education a pre-
vious ftep to the profeffion of the common law, and at the
fame time making the rudiments of the law a part of acade-
mical education. For fciences are of a fociable difpofition,
and flourim beft in the neighbourhood of each other : nor
is there any branch of learning but may be helped and im-
proved by affiftances drawn from other arts. If, therefore,
the ftudent in our laws hath formed both his fentiments and
ftyle, by perufal and imitation of the pureft claflical writers,
among whom the hiftorians and orators will beft deferve his
regard ; if he can reafon with precifion, and feparate argu-
ment from fallacy, by the clear fimple rules of pure unfo-
phifticated logic ; if he can fix his attention, and fteadily
purfue truth through any the mod intricate dedufrion, by
the ufe of mathematical demonftrations ; if he has en-
larged his conceptions of nature and art, by a view of the
feveral branches of genuine experimental philofophy j if he
that were orators, philofophers, hiftorians i there have been Bacons
and Clarendons* There will be none fuch any more, till in
fome better age true ambition, or the love of fame, prevails over
avarice ; and till men find leifure and encouragement to prepare
themfelves for the exercife of this profeffion, by climbing up to
the vantage ground, fo my lord Bacon calls it, of fcience, inftead
of grovelling all their lives below, in a mean but gainful applica-
tion to all the little arts of chicane. Till this happen, the profef-
fion of the law will fcarce deferve to be ranked among the learned
profeffions ; and whenever it happens, one of the vantage grounds
to which men muft climb is metaphyfical, and the other hiftorical
knowledge.
" They muft pry into the fecret recefles of the human heart, and
become well acquainted with the whole moral world, that they may
difcover the abftraft reafon of all laws ; and they muft trace the
laws of particular ftates, efpecially of their own, from the firft
rough fketches, to the more perfect draughts ; from the firft caufes
or occafions that produced them, through all the effects, good and
bad, that they produced," ( Stud, of Hift. p. 353. quarto edition. )
has
r. of the LAW, 33
has imprefled on his mind the found maxims of the law of
nature, the beft and moft authentic foundation of human
laws ; if, laftly, he has contemplated thofe maxims reduced
to a practical fyftem in the laws of imperial Rome j if he
has done this or any part of it, (though all may be eafily
done under as able inftru&ors as ever graced any feats of
learning,) a fludent thus qualified may enter upon the ftudy
of the law with incredible advantage and reputation. And
if, at the conclufion, or during the acquifition of thefe ac- [ 34
complifliments, he will afford himfelf here a year or two's
farther leifure, to lay the foundation of his future labours in
a folid fcientifical method, without thirfting too early to
attend that practice which it was impoffible he mould rightly
comprehend, he will afterwards proceed with the greateft
eafe, and will unfold the moft intricate points with an in-
tuitive rapidity and clearnefs.
I SHALL not infift upon fuch motives as might be drawn
from principles of ceconomy, and are applicable to particulars
only : I reafon upon more general topics. And therefore
to the qualities of the head, which I have juft enumerated,
I cannot but add thofe of the heart 5 affectionate loyalty to
the king, a zeal for liberty and the conftitution, a fenfe of
real honour, and well-grounded principles of religion ; as
neceflary to form a truly valuable Englifh lawyer, a Hyde,
a Hale, or a Talbot. And, whatever the ignorance of
fome, or unkindnefs of others, may have heretofore untruly
fuggefted, experience will warrant us to affirm, that thefe
endowments of loyalty and public fpirit, of honour and
religion, are no where to be found in more high perfection
than in the two univerfities of this kingdom.
BEFORE I conclude, it may perhaps be expected, that I lay
before you a Ihort and general account of the method I propofe
to follow, in endeavouring to execute the truft you have
been pleafed to repofe in my hands. And in thefe folemn
lectures, which are ordained to be read at the entrance of
every term, (more perhaps to do public honour to this laud*-
D 3 able
34 On the STUDY INTROD.
able inftitution, than for the private inftruHon of indivi-
duals 1 *,) I prefume it will beft anfwer the intent of our bene-
fa&or and the expectation of this learned body, if I attempt
to illuftrate at times fuch detached titles of the law, as are
the moft eafy to be underftood, and moil capable of hif-
torical or critical ornament. But in reading the complete
courfe, which is annually configned to my care, a more regu-
C 35 3 lar method will be necefiary ; and till a better is propofed, I
(hall take the liberty to follow the faie that I have already
fubmitted to the public q . To fill up and finifh that outline
with propriety and corre&ness, and to render the whole in-
telligible to the uninformed minds of beginners, (whom we
are too apt to fuppofe acquainted with terms and ideas which
they never had opportunity to learn,) this muft be my ardent
endeavour, though by no means my promife, to accomplifh.
You will permit me, however, very briefly to defcribe, rather
what I conceive an academical expounder of the laws mould
do, than what I have ever known to be done.
HE fhould confider his courfe as a general map of the
law, marking out the fhape of the country, its connexions
and boundaries, its greater divifions and principal cities :
it is not his bufmefs to] defcribe minutely the fubordinate
limits, or to fix the longitude and latitude of every inconfi-
derable hamlet. His attention (hould be engaged, like that
of the readers in Fortefcue's inns of chancery, " in tracing
lt out the originals, and, as it were, the elements of the law."
For if, as Juftinian r has obferved, the tender underftanding
P See Lowth S Oratio Crtwiana, -via ftngula tradantur ; alioqui, ft Jiatim
p. 365. ab irtitio rudem adbuc et infirmum
'> The analyfis of the laws of England, animum Jiudioft mutiitudine at -varie-
firft publilhed A. D. 1 756, and exhibiting tate rerun onera-viatui, duorum alterum,
the order and principal divifiors cf the out deferiorem Jludiorum, tfficifinus,
enfuing COMMENTARIES; which were out cum magno labore,faepe etiam cum
originally fubmitted to the univerfity in a dijpdcntia (qiiae plerumque juvenes aver-
privatc courfe of leclures,^. D. 1753. tit), feriut ad id ferducemus, ad quotf,
r Incipientibus noliis ttcfonert: jura leviere -via dufius, fine magno laborc,
fiofuli Romani, ita -videntiir tradi puffe et fine ulla dijfidentia maturius ferduci
commodij/ime, ft prime lev! ac fimplul fotuiffet. Inf. 1. I. 2.
of
I. of the LAW. 35
of the ftudent be loaded at the firft with a multitude and
variety of matter, it will either occafion him to defert his
ftudics, or will carry him heavily through them, with much
labour, delay, and defpondence. Thefe originals mould be
traced to their fountains, as well as our diftance will permit ;
to the cuftoms of the Britons and Germans, as recorded by
Caefar and Tacitus ; to the codes of the northern nations
on the continent, and more efpecially to thofe of our own
Saxon princes j to the rules of the Roman law either left
here in the days of Papinian, or imported by Vacarius and
his followers : but above all, to that ineftimable refervoir of
legal antiquities and learning, the feodal law, or, as Spel- [ 36
man 3 has entitled it, the law of nations in our weftern orb.
Thefe primary rules and fundamental principles mould be
weighed and compared with the precepts of the law of na-
ture, and the practice of other countries ; mould be explain-
ed by reafons, illuftrated by examples, and confirmed by
undoubted authorities ; their hiftory mould be deduced, their
changes and revolutions obferved, and it mould be fhewn
how far they are connected with, or have at any time been
affected by, the civil tranfadlions of the kingdom.
A PLAN of this nature, if executed with care and ability,
cannot fail of adminiftering a moft ufeful and rational en-
tertainment to ftudents of all ranks and profeflions ; and yet
it muft be confefled that the ftudy of the laws is not merely
a matter of amufement : for as a very judicious writer 1 has
obferved upon a fimilar occafion, the learner " will be con-
" fiderably difappointed, if he looks for entertainment with-
" out the expenfe of attention." An attention, however,
not greater than is ufually beftowed in maftering the rudi-
ments of other fciences, or fometimes in purfuing a favourite
recreation or exercife. And this attention is not equally
neceflary to be exerted by every ftudent upon every pcca-
Of parliaments, 57. l Dr. Taylor's pref. to Elem. of Civil Law.
D 4 fion;
36 On the STUDY INTROD.
fion. Some branches of the law, as the formal procefs of
civil fuits, and the fubtile diftinftions incident to landed pro-
perty, which are the moft difficult to be thoroughly under-
ftood, are the lead worth the pains of underftanding, except
to fuch gentlemen as intend to purfue the profeflion. To
others I may venture to apply, with a flight alteration, the
words of Sir John Fortefcue", when firft his royal pupil
determines to engage in this ftudy. It will not be necef-
" fary for a gentleman, as fuch, to examine with a clofe ap-
f( plication the critical niceties of the law. It will fully
" be fufficient, and he may well enough be denominated a
" lawyer, if under the inftru&ion of a mailer he traces up
I 37 ] " ^ e P r i nc ipl es an d grounds of the law, even to their ori-
" ginal elements. Therefore in a very fhort period, and
" with very little labour, he may be fufficiently informed in
" the laws of his country, if he will but apply his mind in
" good earneft to receive and apprehend them. For though
" fuch knowledge as is necefiary for a judge is hardly to
" be acquired by the lucubrations of twenty years, yet
" with a genius of tolerable perfpicacity, that knowledge
" which is fit for a perfon of birth or condition, may be
" learned in a fingle year, without negle&mg his other im-
provements."
To the few therefore (the very few I am perfuaded) that
entertain fuch unworthy notions of an univerfity, as to fup-
pofe it intended for mere diffipation of thought ; to fuch as
mean only to while away the aukward interval from childhood
to twenty-one, between the reftraints of the fchool and the
licentioufnefs of politer life, in a calm middle ftate of men-
tal and of moral inactivity ; to thefe Mr. Viner gives no
invitation to an entertainment which they never can relifh.
But to the long and illuftrious train of noble and ingenuous
youth, who are not more diftinguiflied among us by their
birth and pofleffions, than by the regularity of their conduct
and their thirft after ufeful knowlege, to thefe our benefac-
u De laud, Leg, c. 8.
tor
i. of the LAW. 37
tor has confecrated the fruits of a long and laborious life,
worn out in the duties of his calling ; and will joyfully re-
flecl: (if fuch reflections can be now the employment of his
thoughts) that he could not more effectually have benefited
pofterity, or contributed to the fervice of the public, than by
founding an inftitution which may inftruft the rifing gene-
ration in the wifdom of our civil polity, and infpire them
with a defire to be ftill better acquainted with the laws and
conftitution of their country (6).
(6) It is remarkable that the celebrated hiftorian Mr. Gibbon,
animadverting freely upon the lectures and inftitutions of Oxford,
fpeaks only of the Vinerian profeflbrfhip with refpeft ; for, after
noticing the eftablifhment of the riding-fchool, he adds, " the
" Vinerian profefibrmip is of far more ferious importance. The
laws of this country are the firft fcience of an Englifhman
of rank and fortune, who is called to be a magiftrate, and may
hope to be a legislator. This judicious inftitution was coldly
entertained by the graver doctors, who complained (I have
heard the complaint) that it would take the young people from
their books ; but Mr. Viner's benefaction is not unprofitable,
" fince it has at leafl produced the excellent commentaries of Sir
" William Blackftone." Gltton's Life, p. 53. And in another
part, having Hated his inducements for beftowing attention upon
new publications of merit, he tells us, " a more refpe&able mo-
" tive may be afligned for the third perufal of Blackftone's Com-
" mentaries ; and a copious and critical abftraft of that Englifh
<l work was my firft ferious production in my native language."
p; 141. Such, it may be obferved, are even the remote confe-
quences of every liberal and literary inftitution, that Viner's
Abridgment may have contributed in no inconfiderable degree to
the elegance and perfpicuity of the Decline and Fall of the Roman
Empire.
38 Of the NATURE of INTROD.
SECTION THE SECOND.
OF THE NATURE OF LAWS IN GENERAL.
T AW, in its moft general and comprehenfive fenfe, fig-
-^ nifies a rule of a&ion ; and is applied indiscriminately
to all kinds of a&ion, whether animate or inanimate,
rational or irrational. Thus we fay, the laws of motion, of
gravitation, of optics, or mechanics, as well as the laws of
nature and of nations. And it is that rule of action which
is prefcribed by fome fuperior, and which the inferior is
bound to obey.
THUS, when the Supreme Being formed the univerfe, and
created matter out of nothing, he imprefled certain princi-
ples upon that matter, from which it can never depart, and
without which it would ceafe to be. When he put that
matter into motion, he eftablifhed certain laws of motion,
to which all moveable bodies muft conform. And to de-
fcend from the greateft operations to the fmalleft, when a
workman forms a clock, or other piece of mechanifm, he
eftablifhes, at his own pleafure, certain arbitrary laws for its
direction ; as that the hand (hall defcribe a given fpace in a
given time , to which law as long as the work conforms, fo
long it continues in perfection, and anfwers the end of its
formation.
IF we farther advance, from mere inactive matter to ve-
getable and animal life, we (hall find them ftill governed by
laws ; more numerous indeed, but equally fixed and inva-
riable. The whole progrefs of plants, from the feed to the
root, and from thence to the feed again; the method of
[ 39 ] animal nutrition, digeftion, fecretion, and all other branches
of vital ceconomy; are not left to chance, or the will of the
creature itfelf, but are performed in a wondrous involuntary
manner*
a. LAWS in generoj* 39
manner, and guided by unerring rules laid down by the
great Creator.
THIS then is the general fignification of law, a rule of
a&ion dictated by fome fuperior being : and in thofe crea-
tures that have neither the power to think nor to will, fuch
laws muft be invariably obeyed, fo long as the creature itfelf
fubfifts, for it's exiftence depends on that obedience. But
laws, in their more confined fenfe (i), and in which it is our
( i ) This perhaps is the only fenfe in which the word latv can
be ftri&ly ufed ; for in all cafes were it is not applied to human
conduft, it may be confidered as a metaphor ; and in every inftance
a more appropriate term may be found. When it is ufed to ex-
prefs the operations of the Deity or Creator, it comprehends ideaa
very different from thofe which are included in it's fignification
when it is applied to man, or his other creatures. The volitions
of the Almighty are his laws, he had only to will ymtrQca $oj KM
syEVETo. When we apply the word law to motion, matter, or
the works of nature or of art, we fliall find in every cafe, that with
equal or greater propriety and perfpicuity, we might have ufed
the words quality, property, or peculiarity. We fay that it is a law
of motion, that a body put in motion in vacua muft for ever go
forward in a ftraight line with the fame velocity ; that it is a law of
nature, that particles of matter mall attract each other with a force
that varies inverfely as the fquare of the diftance from each other;
and mathematicians fay, that a feries of numbers obferves a certain
law, when each fubfequent term bears a certain relation or propor-
tion to the preceding term ; but in all thefe inftances we might as
well have ufed the word property or quality, it being as much the
property of all matter to move in a ftraight line, or to gravitate, as
it is to be folid or extended ; and when we fay that it is the law of
a feries that each term is the fquare or fquare-root of the preced-
ing term, we mean nothing more than that fuch is it's property or
peculiarity. And the word law is ufed in this fenfe in thofe cafes
only which are fan&ioned by ufage ; as it would be thought a harm
expreflion to fay, that it is a law that fnow mould be white, or that
fire mould burn. When a mechanic forms a clock, he eftablifhes
a model of it either in fad or in his mind, according to his plea-
fure ;
39 Of the NATURE of INT ROD,
prefent bufinefs to confider them, denote the rules, not of
action in general, but of human aftion or conduct ; that is,
the precepts by which man, the nobleft of all fublunary
beings, a creature endowed with both reafon and free-will,
is commanded to make ufe of thofe faculties in the general
regulation of his behaviour.
MAN, confideredas a creature, muft necefiarily be fubjecl:
to the laws of his Creator, for he is entirely a dependent
being. A being, independent of any other, has no rule to
purfue, but fuch as he prefcribes to himfelf ; but a ftate of
dependence will inevitably oblige the inferior to take the will
of him, on whom he depends, as the rule of his conduct :
not indeed in every particular, but in all thofe points wherein
his dependence confifts. This principle therefore has more
or lefs extent and effect, in proportion as the fuperiority of
the one and the dependence of the other is greater or lefs
abfolute or limited. And confequently, as man depends
absolutely upon his Maker for every thing, it is neceflary
that he fhould in all points conform to his Maker's will.
THIS will of his Maker is called the law of nature. For
as God, when he created matter, and endued it with a prin-
ciple of mobility, eftablifhed certain rules for the perpetual
fure ; but if he fhould refolve that the wheels of his clock fhould
move contrary to the ufual rotation of fimilar pieces of mechanifm,
we could hardly with any propriety eftablifhed by ufage apply the
term law to his fcheme. When law is applied to any other object
than man, it ceafes to contain two of it's eflential ingredient ideas,
viz. difobedience and punifhment.
Hooker, in the beginning of his Ecclefiaftical Polity, like the
learned judge, has with incomparable eloquence interpreted law in
its moft general and compreheniive fenfe. And moft writers who
treat law as a fcience, begin with fuch an explanation. But the
Editor, though it may feem prefumptuous to queftion fuch autho-
rity, has thought it his duty to fuggeft thefe few observations upon
the fignification of the word law,
direction
a. LAWS in general. 39
dire&ion of that motion } fo, when he created man, and
endued him with free-will to conduct himfelf in all parts of
life, he laid down certain immutable laws of human nature, [ 40 ]
whereby that free-will is in fome "degree regulated and re-
{trained, and gave him alfo the faculty of reafon to difcover
the purport of thofe laws.
CONSIDERING the Creator only as a being of infinite power,
he was able unqueftionably to have prefcribed whatever laws
he pleafed to his creature, man, however unjuft or fevere.
But as he is alfo a being of infinite tvi/dom, he has laid down
only fuch laws as were founded in thofe relations of juftice,
that exifted in the nature of things antecedent to any pofitive
precept. Thefe are the eternal, immutable laws of good and
evil, to which the Creator himfelf in all his difpenfations con-
forms ; and which he has enabled human reafon to difcover,
fo far as they are neceffary for the conduct: of human adtions.
Such among others are thefe principles : that we fhould live
honeftly (2), mould hurt nobody, and mould render to every
one his due ; to which three general precepts Juftinian a has
reduced the whole doctrine of law.
Jurh praecepta funt laec, lonefle r utvere ) alttrum tion /aedere, fuum cuiqui
trlbuere. Inf. I. 1.3.
(2) It is rather remarkable that both Harris, in his tranflation
of Juftinian' s Inftitutes, and the learned Commentator, whofe
profound learning and elegant tafte in the claflics no one will
queftion, {hould render in Englifh, honejte vivere, to live honeftly.
The language of the Inftitutes is far too pure to admit of that in-
terpretation ; and befides, our idea of honefty is fully conveyed by
the words fuum cuique trlbuere. I mould prefume to think that
honejte vivere fignifies to live honourably, or with decorum, or
lienfeance ; and that this precept was intended to comprize that
clafs of duties, of which the violations are ruinous to fociety,
not by immediate but remote confequences, as drunkennefs, de-
bauchery, profanenefs, extravagance, gaming, &c.
BUT
4O Of the NATURE of INTROD.
BUT if the difcovery of thefe firft principles of the law of
nature depended only upon the due exertion of right reafon,
and could not otherwife be obtained than by a chain of me-
taphyfical difquifitions, mankind would have wanted fome
inducement to have quickened their inquiries, and the greater
part of the world would have refted content in mental in-
dolence, and ignorance, it's infeparable companion. As
therefore the Creator is a being, not only of infinite poiuer
and 'wifdom^ but alfo of infinite goodnefs, he has been pleafed
fo to contrive the conftitution and frame of humanity, that
we fhould want no other prompter to inquire after and pur-
fue the rule of right, but only our own felf-love, that uni~
verfal principle of action. For he has fo intimately con-
nected, fo infeparably interwoven the laws of eternal juftice
with the happinefs of each individual, that the latter cannot
be attained but by obferving the former : and, if the former
be punctually obeyed, it cannot but induce the latter. In
confequence of which mutual connexion of juftice and hu-
C 41 ] man felicity, he has not perplexed the law of nature with a
multitude of abftracted rules and precepts, referring merely
to the fitnefs or unfitnefs of things, as fome have vainly fur-
mifed j but has gracioufly reduced the rule of obedience to
this one paternal precept, " that man fhould purfue his own
" true and fubftantial happinefs." This is the foundation
of what we call ethics, or natural law. For the feveral
articles into which it is branched in our fyftems amount to
no more than demonftrating, that this or that action tends
to man's real happinefs, and therefore very juftly concluding
that the performance of it is a part of the law of nature ; or,
on the other hand, that this or that action is deftructive of
man's real happinefs, and therefore that the law of nature
forbids it.
THIS law of nature being coeval with mankind, and
dilated by God himfelf, is of courfe fuperior in obligation
to any other. It is binding over all the globe, in all countries,
and
2. LAWS in general. 41
and at all times : no human laws are of any validity, if
contrary to this (3 ) ; and fuch of them as are valid derive all
their force and all their authority, mediately or immediately,
from this original.
BUT in order to apply this to the particular exigencies of
each individual, it is ftill neceflary to have recourfe to rea-
fon : whofe office it is to difcover, as was before obferved,
what the law of nature directs in every circumftance of
life j by confidering what method will tend the moft effec-
tually to our awn fubftantial happinefs. And if our reafon
were always, as in our firft anceftor before his tranfgreflion,
clear and perfect, unruffled by paflions, unclouded by preju-
dice, unimpaired by difeafe or intemperance, the talk would
( 3 ) Lord Chief Juftice Hobart has alfo advanced, that even an
ad of parliament, made againft natural juftice, as to make a man a
judge in his own caufe, is void in itfelf, for jura naturatfunt immuta-
bil'ta, and they are leges legum. ( Hob. 87. ) With deference to thefe
high authorities, I mould conceive that in no cafe whatever can a
judge oppofe his own opinion and Authority to the clear will and
declaration of the legiflature. His province is to interpret and
obey the mandates of the fupreme power of the ftate. And if an
aft of parliament, if we could fuppofe fuch a cafe, mould, like the
edift of Herod, command all the children under a certain age to
be ilain, the judge ought to refign his office rather than be auxi-
liary to its execution ; but it eould only be declared void by the
fame legiflative power by which it was ordained. If the judicial
power were competent to decide that an aft of parliament was void
becaufe it was contrary to natural juftice, upon an appeal to the
Houfe of Lords this inconfiftency would be the confequence, that
as judges they muft declare void what as legislators they had
enafted mould be valid.
The learned judge himfelf declares in p. 91, " if the parliament
" will pofitively enaft a thing to be done which is unreafonable, I
" know of no power in the ordinary forms of the conilitution that
" is vetted with authority to control it." What has been done by
parliament can only be undone by parliament.
be
4i Of the NATURE of INTROD.
be pleafant and eafy ; we fhould need no other guide but
this. But every man now finds the contrary in his own
experience ; that his reafon is corrupt, and his underftand-
ing full of ignorance and error.
THIS has given manifold occafion for the benign interpo-
Ction of divine providence ; which, in compaffion to the
frailty, the imperfection, and the blindnefs of human reafon,
C 42 ] hath been pleafed, at fundry times and in divers manners,
to difcover and enforce it's laws by an immediate and direct
revelation. The doctrines thus delivered we call the reveal-
ed or divine law, and they are to be found only in the holy
fcriptures. Thefe precepts, when revealed, are found upon
comparifon to be really a part of the original law of nature,
as they tend in all their confequences to man's felicity. But
we are not from thence to conclude that the knowledge of
thefe truths was attainable by reafon, in its prefent corrupted
ftate; fince we find that, until they were revealed, they
were hid from the wifdom of ages. As then the moral pre-
cepts of this law are indeed of the fame original with thofe
of the law of nature, fo their intrinfic obligation is of equal
ftrength and perpetuity. Yet undoubtedly the revealed law
is of infinitely more authenticity than that moral fyftem
which is framed by ethical writers, and denominated the
natural law. Becaufe one is the law of nature, exprefsly
declared fo to be by God himfelf j the other is only what,
by the afliftance of human reafon, we imagine to be that law.
If we could be as certain of the latter as we are of the
former, both would have an equal authority : but, till then,
they can never be put in any competition together.
thefe two foundations, the law of nature and the
law of revelation, depend all human laws ; that is to fay, no
human laws mould be fuffered to contradict thefe. There
are, it is true, a great number of indifferent points, in which
both the divine law and the natural leave a man at his own
liberty ; but which are found neceflary for the benefit of
fociety to be re fir allied within certain limits* And herein it
is
2. LAWS in general. 42
Is that human laws have their greateft force and efficacy ;
for with regard to fuch points as are not indifferent, human
laws are only declaratory of, and act in fubordination to, the
former. To inftance in the cafe of murder ; this is exprefsly
forbidden by the divine, and demonftrably by the natural
law; and from thefe prohibitions arifes the true unlawful-
nefs of this crime. Thofe human laws that annex a pu-
nifhment to it, do not at all increafe its moral guilt, or fuper-
acld any frefh obligation in foro confcienttae to abftain from [ 43 ]
its perpetration. Nay, if any human law fliould allow or
enjoin us to commit it, we are bound to tranfgrefs that hu-
man law, or elfe we muft offend both the natural and the
divine. But with regard to matters that are in themfelves
indifferent, and are not commanded or forbidden by thofe
fuperior taws ; fuch, for inftance, as exporting of wool into
foreign countries , here the inferior legiflature has fcope and
opportunity to interpofe, and to make that action unlawful
which before was not fo.
IF man were to live in a flate of nature, unconnected
with other individuals, there would be no occafion for any
other laws, than the law .of nature (4), and the law of God.
Neither could any other law poflibly exift ; for a law always
fuppofes fome fuperior who is to make it j and in a ftate of
(4) The law of nature, or morality, which teachea the duty to-
wards one's neighbour, would fcarce be wanted in a folitary ftate,
where man is unconne&ed with man. A ftate of nature, to which
the laws of nature or of morals more particularly refer, muft fig-
nify the ftate of men when they aflbciate together previous to, or
independent of, the inftitutions of regular government. The
ideal equality of men in fuch a ftate no more precludes the idea
of a law, than the fuppofed equality of fubjetts in a republic.
The fuperior, who would prefcribe and enforce the law in a ftate
of nature, would be the collective force of the wife and good, as
the fuperior in a perfect republic is a majority of the people, or the
power to which the majority delegate their authority.
VOL. I. E nature
43 OftbeNATVKZof INTROD.
nature we are all equal, without any other fuperior but him
who is the author of our being. But man was formed for
fociety ; and, as is demonftrated by the writers on this fub-
je& b, is neither capable of living alone, nor indeed has the
courage to do it. However, as it is impoflible for the whole
race of mankind to be united in one great fociety, they muft
neceflarily divide into many ; and form feparate dates,
commonwealths, and nations, entirely independent of each
other, and yet liable to a mutual intercourfe. Hence arifes
a third kind of law to regulate this mutual intercourfe,
called " the law of nations : which, as none of thefe
ftates will acknowledge a fuperiority in the other, cannot be
dictated by any j but depends entirely upon the rules of
natural law, or upon mutual compacts, treaties, leagues,
and agreements between thefe feveral communities : in the
conftru&ion alfo of which compacts, we have no other rule
to refort to, but the law of nature ; being the only one to
which all the communities are equally fubjecl : and therefore
the civil law* very juftly obferves, that quod naturalis ratio
inter omnes homines ccnjlituit t vocutur jus gentium.
C 44 ] THUS much I thought it neceflary to premife concerning
the law of nature, the revealed law, and the law of nations,
before I proceeded to treat more fully of the principal fub-
jec"l of this fetion, municipal or civil law ; that is, the rule
by which particular diftricts, communities, or nations are
governed ; being thus defined by Juftinian d , "Jus civile eft
" quod quifque ftbi populus conjlituit" I call it municipal law,
in compliance with common fpeech ; for though, flriclly,
that expreflion denotes the particular cuftoms of one fingle
municipium or free town, yet it may with fufficient propriety
be applied to any one (late or nation, which is governed by
the fame laws and cuftoms.
MUNICIPAL law, thus underftood, is properly defined to
be " a rule of civil conduct prefcribed by the fupreme
b Puffendorff, /. 7. c. i. compared with e ff. 1.1.9.
Barbeyrac's commentary. " //?. j. a. i,
power
2. LAWS in general. 44.
" power in a ftate, commanding what is right, and pro*
" hibiting what is wrong (5)." Let us endeavour to
(5 ) Though the learned Judge treats this as a favourite defini-
tion, yet when it is examined, it will not perhaps appear fo fatis-
faftory, as the definition of civil or municipal law, or the law of
the land, cited above from Juftinian's Inftitutes ; viz. Quodquifque
populus ipfejibijus conjlituit, id ipjius proprium civitatit ejl t vocaturque
jus civile, quaji jus proprium ipjius civitatis.
A municipal law is completely expreflied by the firft branch of
the definition " A rule of civil conduct prefcribed by the fu-
" preme power in a ftate." And the latter branch, " commanding
" what is right and prohibiting what is wrong," muft either be
fuperfluous or convey a defective idea of a municipal law ; for if
right and wrong are referred to the municipal law itfelf, then
whatever it commands is right, and what it prohibits is wrong,
and the claufe would be infignificant tautology. But if right
and wrong are to be referred to the law of nature, then the defini-
tion will become deficient or erroneous ; for though the municipal
law may feldom or never command what is wrong, yet in ten
thoufand inftances it forbids what is right. It forbids an unqua-
lified perfon to kill a hare or a partridge ; it forbids a man to ex-
ercife a trade without having ferved feven years as an apprentice ;
it forbids a man to keep a horfe or a fervant without paying the
tax. Now all thefe ads were perfectly right before the prohibition
of the municipal law. The latter claufe of this definition feems
to have been taken from Cicero's definition of a law of nature,
though perhaps it is there free from the objeftions here fuggefted,
Lex eflfumma ratio infita a natura qu<e jubet ea, qua facienda funt t
prohibetque contraria. Cic. de Leg. lib. i. c. 6.
The defcription of law given by Demofthenes is perhaps the
mod perfect and fatisfaftory that can either be found or con-
ceived : Oi 5i vofjMi TO 3txao xal TO xaXov x* TO <n>fA<pffoy |3ot/XowflM t
xal Taro ^nrao-i* x.a.1 l7r&v tyfsS*!, xotwv TSTO
wiriv ITOV K%\ ojuotov* x*I TT' s'r* vi^or, y wavraj
5i TroXXa., xal /xXcr9', CT* waj Ifl va/xo?, ttf>!/^a /xtv xal ^*gov Stwy,
doy/x* 5' avSjwVwv <p{ovp.OT, E7raop9wju Jt TWV Ixafftwy, x olxuffiutf
ciy.oi.plnpa.Tw, iroXtu; 5s (rvy$yx.y xojvri* xaS' rjv 9raer irjocnjxH ^rf TO?? !
in v6>M. " The defign and objel of laws is to afcertain what
" is juil, honourable, and expedient ; and when that is difcovered,
2 "it
44 Of the NATURE of INTROD.
explain Its feveral properties, as they arife out of this
definition.
AND, firft, it is a rule: not a tranfient fudden order
from a fuperior to or concerning a particular perfon ; but
fomething permanent, uniform, and univerfal. Therefore
a particular aft of the legiflature to confifcate the goods of
Titius, or to attaint him of high treafon, does not enter
into the idea of a municipal law j for the operation of this
act is fpent upon Titius only, and has no relation to the
community in general ; it is rather a fentence than a law.
But an aft to declare that the crime of which Titius is ac-
cufed mall be deemed high treafon ; this has permanency,
uniformity, and universality, and therefore is properly a rule .
It is alfo called a rule, to diftinguifli it from advice or coun-
fel) which we are at liberty to follow or not, as we fee
proper, and to judge upon the reafonablenefs or unreafon-
ablenefs of the thing advifed : whereas our obedience to the
law depends not upon our approbation, but upon the maker's
will. Counfel is only matter of perfuafion, law is matter of
injunction ; counfel ads only upon the willing, law upon
the unwilling alfo.
C 45 3 ^ T * s a ^ ca ^ e ^ a ru ? e > to diftinguim it from a cotnpaft or
agreement ; for a compact is a promife proceedingyrowz us,
law is a command directed to us. The language of a compat
is, " I will, or will not, do this ;" that of a law is, " thou
" malt, or {halt not do it." It is true there is an obligation
" it is proclaimed as a general ordinance, equal and impartial
" to all. This is the origin of law, which, for various reafons,
" all are under an obligation to obey, but efpecially becaufe
" all law is the invention and gift of Heaven, the fentiment
" of wife men, the correftion of every offence, and the ge-
" neral compad of the ftate ; to live in conformity with which
" is the duty of every individual in fociety." Orat. i. cont.
Ar'ijlogit.
which
2. LAWS in general. 45
which a compact carries with it, equal in point of confcience
to that of a law j but then the original of the obligation is
different. In compacts we ourfelves determine and promife
what (hall be done, before we are obliged to do it ; in laws,
we are obliged to aft without ourfelves determining or pro-
mifing any thing at all. Upon thefe accounts law is denned
to be a rule."
MUNICIPAL law is alfo " a rule of civil conduft" This
diftinguimes municipal law from the natural, or revealed ;
the former of which is the rule of moral conduct, and the
latter not only the rule of moral conduct, but alfo the rule of
faith. Thefe regard man as a creature, and point out his
duty to God, to himfelf, and to his neighbour, confidered in
the light of an individual. But municipal or civil law re-
gards him alfo as a citizen, and bound to other duties towards
his neighbour, thanthofe of mere nature and religion: duties,
which he has engaged in by enjoying the benefits of the
common union; and which amount to no more, than that
he do contribute, on his part, to the fubfiftence and peace of
the fociety.
IT is likewife a rule prefcribed" Becaufe a bare refolu-
tion, confined in the breaft of the legiflator, without mani-
fefting itfelf by fome external fign, can never be properly a
law. It is requifite that this refolution be notified to the
people who are to obey it. But the manner in which this
notification is to be made, is matter of very great indifference.
It may be notified by univerfal tradition and long practice,
which fuppofes a previous publication, and is the cafe of the
common law of England. It may be notified, vivd vote,
by officers appointed for that purpofe, as is done with regard
to proclamations, and fuch acts of parliament as are appointed
to be publicly read in churches and other aflemblies. It 46 ]
may laflly be notified by writing, printing, or the like ;
which is the general courfe taken with all our acts of Parlia-
E 3 ment.
46 Of the NATURE *f INTROD.
ment. Yet, whatever way is made ufe of, it is incumbent
on the promulgators to do it in the moft public and perfpi-
cuous manner; not like Caligula, who (according to Dio
Caflius) wrote his laws in a very fmall character, and hung
them up on high pillars, the more effectually to enfnare
the people. There is ftill a more unreafonable method than
this, which is called making of laws e x pojlfafto : when after
an aHon (indifferent in itfelf) is committed, the legiflator
then for the firft time declares it to have been a crime, and
inflicts a punifliment upon the perfon who has committed it.
Here it is impoflible that the party could forefee that an aclion,
innocent when it was done, mould be afterwards converted
to guilt by a fubfequent law : he had therefore no caufe to
abftain from it ; and all punifhment for not abilaining muft
of confequence be cruel and unjuft. e All laws fhould be
therefore made to commence infuturo, and be notified before
their commencement ; which is implied in the term " pre-
" fcribed" But when this rule is in the ufual manner noti-
fied, or prefcribed, it is then the fubjecYs bufinefs to be
thoroughly acquainted therewith ; for if ignorance of what
he might know were admitted as a legitimate excufe, the
laws would be of no effeft, but might always be eluded
with impunity.
e Such laws among the Romans were " duotiecim tabulae, legei fri-vatii lomi-
denominated priviltgia (6), or private " nitus irrogari ; id tnim eft frivilegium.
laws, of which Cicero (de leg. 5. 19. " Nemo unquam lulit : n'tbil efl crudt-
and in his oration pro domo, 17.) thus " Hut, nibil femiciafius, niliil quod m'mut
fpeaks: " Vetant leges facratac, -vetant " baec civitai ftrrc foffit."
(6) An ex poJlfaSo law may be either of a public or of a private
nature ; and when we fpeak generally of an ex fofl faffo law, we
perhaps always mean a law which comprehends the whole commu-
nity. The Roman privilegia feem to correfpond to our bills of
attainder, and bills of pains and penalties, which, though in their
nature they are ex po/i faSo laws, yet are feldom called fo.
BUT
a. LAWS in general. 46
BUT farther : municipal law is " a rule of civil conduct
*' prescribed by the fupreme power tn a Jtnte." For legiflature,
as was before obferved, is the greateft act of fuperiority that
can be exercifed by one being over another. Wherefore it is
requifite to the very eflence of a law, that it be made by the
fupreme power. Sovereignty and legiflature are indeed con-
vertible terms ; one cannot fubfift without the other.
THIS will naturally lead us into a fhort inquiry concerning [ 47 ]
the nature of fociety, and civil government ; and the natural,
inherent right that belongs to the fovereignty of a ftate,
wherever that fovereignty be lodged, of making and en-
forcing laws.
THE only true and natural foundations of fociety are the
wants and the fears of individuals. Not that we can believe,
with fome theoretical writers, that there ever was a time when
there was no fuch thing as fociety, either natural or civil ; and
that, from the impulfe of reafon, and through a fenfe of their
wants and weakneffes, individuals met together in a large
plain, entered into an original contract, and chofe the tailed
man prefent to be their governor. This notion, of an ac-
tually exifting unconnected ftate of nature, is too wild to be
ferioufly admitted ; and befides it is plainly contradictory to
the revealed accounts of the primitive origin of mankind, and
their prefervation two thoufand years afterwards ; both which
were effected by the means of fingle families. Thefe formed
the firft natural fociety, among themfelves -, which, every day
extending its limits, laid the firft though imperfect rudiments
of civil or political fociety : and when it grew too large to fub-
fift with convenience in that paftoral ftate, wherein the pa-
triarchs appear to have lived, it neceflarily fubdivided itfelf by
various migrations into more. Afterwards, as agriculture in-
creafed, which employs and can maintain a much greater num-
ber of hands, migrations became lefs frequent : and various
tribes, which had formerly feparated, reunited again ; fome-
times by compulfion and conqueft, iometimes by accident,
4 and
47 Of the NATURE of INTROD.
and fometimes perhaps by compact. But though fociety had
not its formal beginning from any convention of individuals,
actuated by their wants and their fears : yet it is thefenfe of
their weaknefs and imperfection that keeps mankind together,
that demonftrates the neceflity of this union : and that there-
fore is the folid and natural foundation, as well as the ce-
ment, of civil fociety. And this is what we mean by the
original contract of fociety ; which, though perhaps in no
inftance it has ever been formally exprefled at the firft infti-
tution of a ftate ; yet in nature and reafon muft always be
[ 48 ] underftood and implied, in the very act of aflbciating
together : namely, that the whole mould protect all its parts,
and that every part mould pay obedience to the will of the
whole, or, in other words, that the community mould guard
the rights of each individual member, and that (in return
for this protection) each individual mould fubmit to the
laws of the community ; without which fubmiflion of all
it was impoflible that protection could be certainly extended
to any.
FOR when civil fociety is once formed, government at the
fame time refults of courfe, as neceflary to preferve and to
keep that fociety in order. Unlefs fome fuperior be confti-
tuted, whofe commands and decifions all the members are
bound to obey, they would ftill remain as in a ftate of na-
ture, without any judge upon earth to define their feveral
rights, and redrefs their feveral wrongs. But, as all the
members which compofe this fociety were naturally equal,
it may be afked, in whofe hands are the reins of government
to be entrufted ? To this the general anfwer is eafy ; but
the application of it to particular cafes has occafioned one
half of thofe mifchiefs, which are apt to proceed from mif-
guided political zeal. In general, all mankind will agree
that government mould be repofed in fuch perfons, in whom
thofe qualities are moft likely to be found, the perfection
of which is among the attributes of him who is emphatically
ftyled the Supreme Being ; the three grand requifites, I mean,
of
2. LAWS in general. 48
of wifdom, of goodnefs, and of power : wifdom to difcern
the real intereft of the community , goodnefs to endeavour
always to purfue that real intereft ; and ftrength, or power,
to carry this knowledge and intention into action. Thefe
are the natural foundations of Sovereignty, and thefe are the
requisites that ought to be found in every well-conftituted
frame of government.
How the feveral forms of government we now fee in the
world at firft actually began, is matter of great uncertainty,
and has occafioned infinite difputes. It is not my bufmefs
or intention to enter into any of them. However they be-
gan, or by what right foever they fubfift, there is and muft
be in all of them a fupreme, irrefiftible, abfolute, uncontrolled
authority, in which the jura fumma imperil, or the rights of
fovereignty refide. And this authority is placed in thofe
hands, wherein (according to the opinion of the founders of
fuch refpective ftates, either exprefsly given, or collected
from their tacit approbation,) the qualities requifite for
fupremacy, wifdom, goodnefs, and power, are the mod
likely to be found.
THE political writers of antiquity will not allow more
than three regular forms of government ; the firft, when the
fovereign power is lodged in an aggregate afTembly, confiding
of all the free members of a community, which is called a
democracy ; the fecond, when it is lodged in a council, com-
pofed of felect members, and then it is ftyled an ariftocracy ,
the laft, when it is entrufted in the hands of a fingle perfon,
and then it takes the name of a monarchy. All other fpecies
of government, they fay, are either corruptions of, or redu-
cible to, thefe three.
BY the fovereign power, as was before obferved, is meant
the making of laws ; for wherever that power refides, all
others muft conform to, and be directed by it, whatever ap-
pearance the outward form and adminiftration of the govern-
ment
49 Of *h* NATURE of INT ROD.
ment may put on. For it is at any time in the option of the
legiflature to alter that form and adminiftration by a new
edicl: or rule, and to put the execution of the laws into
whatever hands it pleafes ; by conflicting one, or a few, or
many executive magiftrates : and all the other powers of the
ftate mufl obey the legiflative power in the difcharge of their
feveral functions, or elfe the conftitution is at an end.
IN a democracy, where the right of making laws refides
in the people at large, public virtue, or goodnefs of inten-
tion, is more likely to be found, than either of the other
qualities of government. Popular aflemblies are frequently
foolifh in their contrivance, and weak in their execution ;
but generally mean to do the thing that is right and juft,
and have always a degree of patriotifm or public fpirit. In
[ 50 ] ariflocracies there is more wifdom to be found than in the
other frames of government ; being compofed, or intended
to be compofed, of the mod experienced citizens: but there
is lefs honefty than in a republic, and lefs ftrength than in
a monarchy. A monarchy is, indeed, the mofl powerful of
any ; for by the entire conjunction of the legiflative and
executive powers, all the finews of government are knit to-
gether, and united in the hand of the prince j but then there
is imminent danger of his employing that ftrength to impro-
vident or oppreflive purpofes.
THUS thefe three fpecies of government have, all of them,
their feveral perfections and imperfections. Democracies
are ufually the beft calculated to direct the end of the law ;
ariftocracies to invent the means by which that end (hall be
obtained ; and monarchies to carry thofe means into execu-
tion. And the antients, as was obferved, had in general no
idea of any other permanent form of government but thefe
three : for though Cicero f declares himielf of opinion, " effe
" optime conjlitutam rempublicam^ quae ex tribus generibus /'////,
*' rega/i t Optimo, et popular^ Jit modice confufa ;" yet Tacitus
f In his fragments dt rep. 1. 2.
treats
a. LAWS in general. $a
treats this notion of a mixed government, formed out of
them all, and partaking of the advantages of each, as a
vifionary whim, and one that, if effected, could never be
lading or fecure 8 .
BUT, happily for us of this ifland, the Britifh conftitution
has long remained, and I truft will long continue, a {landing
exception to the truth of this obfervation. For, as with us
the executive power of the laws is lodged in a (ingle perfon,
they have all the advantages of flrength and difpatch, that
are to be found in the moft abfolute monarchy : and as the
legiflature of the kingdom is entrufted to three diftinft
powers, entirely independent of each other ; firft, the king ;
fecondly, the lords fpiritual and temporal, which is an arif-
tocratical aflembly of perfons fele&ed for their piety, their
birth, their wifdom, their valour, or their property ; and
thirdly, the houfe of commons, freely chofen by the people
from among themfelves, which makes it a kind of demo-
cracy ; as this aggregate body, actuated by different fprings,
and attentive to different interests, compofes the Britifh par-
liament, and has the fupreme difpofal of every thing; there
can no inconvenience be attempted by either of the three
branches, but will be wilhftood by one of the other two ;
each branch being armed with a negative power, fufficient
to repel any innovation which it ftiall think inexpedient or
dangerous.
HERE then is lodged the fovereignty of the Britifh con-
ftitution ; and lodged as beneficially as is poflible for fociety.
For in no other fhape could we be fo certain of finding the
three great qualities of government fo well and fo happily
united. If the fupreme power were lodged in any one of
the three branches feparately, we muft be expoied to the in-
conveniences of either abfolute monarchy, ariflocracy, or de-
* " Cunfias nationes et urbts, popu- " licae fjrma laudari faclliut quam
" AM, aut primores, out Jinguli regunt : " e*vcnirt, vet, fi evenit, baud diuiurna
delefia ex tit et conJtiMa rtlfut- e/efetefl." Ann, L e,.
mocracy ;
5* Of the NATURE of INTROD*
mocracy ; and fo want two of the three principal ingredients
of good polity, either virtue, wifdom, or power. If it were
lodged in any two of the branches : for inftance, in the
king and houfe of lords ; our laws might be providently
made, and well executed, but they might not always have
the good of the people in view : if lodged in the king and
commons, we mould want that circumfpection and media-
tory caution, which the wifdom of the peers is to afford : if
the fupreme rights of legiflature were lodged in the two
houfes only, and the king had no negative upon their pro-
ceedings, they might be tempted to encroach upon the royal
prerogative, or perhaps to abolifh the kingly office, and
thereby weaken (if not totally deftroy) the ftrength of the
executive power. But the conftitutional government of this
ifland is fo admirably tempered and compounded, that nothing
can endanger or hurt it, but deftroying the equilibrium of
power between one branch of the legiflature and the reft.
For if ever it mould happen that the independence of any
one of the three mould be loft, or that it mould become fub-
fervient to the views of either of the other two, there would
foon be an end of our conftitution. The legiflature would
[ 52 ] be changed from that, which (upon the fuppofition of an
original contract, either actual or implied) is prefumed to
have been originally fet up by the general confent and funda-
mental act of the fociety : and fuch a change, however ef-
fected, is according to Mr. Locke h (who perhaps carries his
theory too far) at once an entire diflblution of the bands of
government ; and the people are thereby reduced to a ftate
of anarchy, with liberty to conftitute to thernfelves a new
legiflative power.
HAVING thus curforily confidered the three ufual fpecies
of government, and our own fmgular conftitution, felected
and compounded from them all, I proceed to obferve, that,
as the power of making laws conftitutes the fupreme autho-
h On government, part. 21. 312.
rity,
2. LAWS in general. 52
rity, fo wherever the fupreme authority in any ftate refides,
it is the right of that authority to make laws ; that is, in the
words of our definition, to prefcribe the rule of civil aftion.
And this may be difcovared from the very end and inftitu-
tion of civil ftates. For a ftate is a collective body, compofed
of a multitude of individuals, united for their fafety and con-
venience, and intending to at together as one man. If it
therefore is to acl: as one man, it ought to a& by one uniform
will. But, inafmuch as political communities are made up
of many natural perfons, each of whom has his particular
will and inclination, thefe feveral wills cannot by any natural
union be joined together, or tempered and difpofed into a
lafting harmony, fo as to conftitute and produce that one
uniform will of the whole. It can therefore be no otherwife
produced than by a political union ; by the confent of
all perfons to fubmit their own private wills to the will of
one man, or of one or more aflemblies of men, to whom the
fupreme authority is entrufted : and this will of that one man,
or affemblage of men, is in different ftates, according to their
different conftitutions, underftood to be law.
THUS far as to the right of the fupreme power to make
laws j but farther, it is it's duty likewife. For, fince the re-
fpeclive members are bound to conform themfelves to the [ 53 ]
will of the ftate, it is expedient that they receive directions
from the ftate declaratory of that it's will. But, as it is
impoflible, in fo great a multitude, to give injunctions to
every particular man, relative to each particular action, it is
therefore incumbent on the ftate to eftabliih general rules,
for the perpetual information and direction of all perfons in
all points, whether of poiitive or negative duty. And this,
in order that every man may know what to look upon as his
own, what as another's ; what abfolute and what relative du-
ties are required at his hands j what is to be efteemed honeft,
dimoneft, or indifferent ; what degree every man retains of
his natural liberty ; what he has given up as the price of the
benefits of fociety ; and after what manner each perfon is to
moderate
53 Of the NATURE of INTROD.
moderate the ufe and exercife of thofe rights which the ftate
afligns him, in order to promote and fecure the public
tranquillity.
FROM what has been advanced, the truth of the former
branch of our definition is (I truft) fufficiently evident ; that
" municipal law is a rule of civil conducl prefer ibed by the fu-
" prerne power in ajiate" I proceed now to the latter branch
of it; that it is a rule fo prescribed, " commanding what is
t( right, and prohibiting what is wrong."
Now, in order to do this completely, it is firft of all ne-
ceflary that the boundaries of right and wrong be eftablifhed
and afcertained by law. And when this is once done, it
will follow of courfe that it is likewife the bufinefs of the
law, confidered as a rule of civil conduct, to enforce thefe
rights, and to reftrain or redrefs thefe wrongs. It remains,
therefore, only to confider in what manner the law is faid
to afcertain the boundaries of right and wrong ; and the
methods which it takes to command the one and prohibit
the other.
FOR this purpofe every law may be faid to confift of feveral
parts : one, declaratory ; whereby the rights to be obferved,
and the wrongs to be efchewed, are clearly defined and laid
C 54 ] down : another, direclory , whereby the fubjedl is inftrudted
and enjoined to obferve thofe rights, and to abftain from the
commiflion cf thofe wrongs : a third, remedial; whereby a
method is pointed out to recover a man's private rights, or
redrefs his private wrongs : to which maybe added a fourth,
ufually termed the fancJion t or vindicatory branch of the law ;
whereby it is fignified what evil or penalty {hall be incurred
by fuch as commit any public wrongs, and tranfgrefs or
neglect: their duty.
WITH regard to the firft of thefe, the declaratory part of
the municipal law, this depends not fo much upon the law
of
2. LAWS in general. 54
of revelation or of nature, as upon the wifdom and will of
the legiflator. This doctrine, which before was flightly
touched, deferves a more particular explication. Thofe
rights then which God and nature have eftablished, and are
therefore called natural rights, fuch as are life and liberty,
need not the aid of human laws to be more effectually in-
verted in every man than they are j neither do they receive
any additional ftrength when declared by the municipal laws
to be inviolable. On the contrary, no human legiflature
has power to abridge or deflroy them, unlefs the owner
{hall himfelf commit fome act that amounts to a forfeiture.
Neither do divine or natural duties (fuch as, for inftance,
the wormip of God, the maintenance of children, and the
like) receive any ftronger fandtion from being alfo declared
to be duties by the law of the land. The cafe is the fame
as to crimes and mifdemefnors, that are forbidden by the
fuperior laws, and therefore ftyled mala in fe, fuch as mur-
der, theft, and perjury j which contract no additional tur-
pitude from being declared unlawful by the inferior legifla-
ture. For that legiflature in all thefe cafes acts only, as
was before obferved, in fubordination to the great lawgiver,
tranfcribing and publifliing his precepts. So that, upon the
whole, the declaratory part of the municipal law has no force
or operation at all, with regard to actions that are naturally
and intrinfically right or wrong.
BUT, with regard to things in themfelves indifferent, the [ 55
cafe is entirely altered. Thefe become either right or wrong,
juft or unjuft, duties or mifdemefnors, according as the mu-
nicipal legiflator fees proper, for promoting the welfare of
the fociety, and more effectually carrying on the purpofes of
civil life. Thus our own common law has declared, that
the goods of the wife do inftantly upon marriage become the
property and right of the hufband ; and our ftatute law has
declared all monopolies a public offence ; yet that right
and this offence have no foundation in nature ; but are
merely created by the law, for the purpofes of civil fociety.
And,
55 Of 'the NATURE of INTR.CD.
And fometimes, where the thing itfelf has its rife from the
law of nature, the particular circumftances and mode of
doing it become right or wrong, as the laws of the land
ihall direct. Thus, for inftance, in civil duties ; obedience
to fuperiors is the doctrine of revealed as well as natural reli-
gion ; but who thole fuperiors mall be, and in what circum-
ftances, or to what degrees they (hall be obeyed, it is the
province of human laws to determine. And fo, as to inju-
ries or crimes, it muft be left to our own legiflature to
decide, in what cafes the feizing another's cattle fhall amount
to a trefpafs or a theft ; and where it fhall be a juftifiable
action, as when a landlord takes them by way of diftrefs
for rent.
THUS much for the declaratory part of the municipal law;
and the directory (lands much upon the fame footing ; for this
virtually includes the former, the declaration being ufually
collected from the direction. The law that fays, " thou
" (halt not fteal," implies a declaration that dealing is a
crime. And we have feen ' that, in things naturally indif-
ferent, the very eflence of right and wrong depends upon the
direction of the laws to do or to omit them.
THE remedial part of the law is fo neceflary a confequence
of the former two, that laws muft be very vague and im-
[ c6 ] perfect without it. For in vain would rights be declared, in
vain directed to be obferved, if there were no method of
recovering and aflerting thofe rights, when wrongfully with-
held or invaded. This is what we mean properly, when we
fpeak of the protection of the law. When, for inftance, the
declaratory part of the law has faid, " that the field or inhe-
" ritance, which belonged to Titius's father, is vefted by his
" death in Titius :" and the directory part has " forbidden
<{ any one to enter on another's property, without the leave
" of the owner :" if Gaius, after this, will prefume to take
pofleffion of the land, the remedial part of the law will then
See page 43.
interpofe
2. LAWS in general* 56
interpofe it's office ; will make Gaius reftore the pofleffion to
Titius, and alfo pay him damages for the invafion.
WITH regard to the fanEiion of laws, or the evil that
may attend the breach of public duties ; it is obferved, that
human legiflators have for the moft part chofen to make the
fanction of their laws rather vindicatory than remuneratory t or
to confift rather in punifhments, than in actual particular
rewards. Becaufe, in the firft place, the quiet enjoyment
and protection of all our civil rights and liberties, which are
the fure and general confequence of obedience to the muni-
cipal law, are in themfelves the beft and moft valuable of all
rewards. Becaufe alfo, were the exercife of every virtue to
be enforced by the propofal of particular rewards, it were
impoflible for any ftate to furnifh (lock enough for fo profufe
a bounty. And farther, becaufe the dread of evil is a much
more forcible principle of human action than the profpect
of good k . For which reafons, though a prudent beftowing
of rewards is fometimes of exquifite ufe, yet we find that
thofe civil laws, which enforce and enjoin our duty, do fel-
dom, if ever, propofe any privilege or gift to fuch as obey
the law ; but do conftantly come armed with a penalty de-
nounced againft tranfgreflbrs, either exprefsly defining the
nature and quantity of the punifhment, or elfe leaving it to
the difcretion of the judges, and thofe who are entrufted
with the care of putting the laws in execution.
OF all the parts of a law the moft effectual is the vindi- [ 57 ]
catoryi, For it is but loft labour to fay, " do this, or avoid
" that," unlefs we alfo declare, this (hall be the confe-
" quence of your non-compliance." We muft therefore
obferve, that the main ftrength and force of a law confifts in
the penalty annexed to it. Herein is to be found the prin-
cipal obligation of human laws.
, k Locke, Hum. Und, b. a, c at.
VOL. I. F LEGIS-
57 Of the NATURE of INTROD.
LEGISLATORS and their laws are faid to compel and oblige ;
not that by any natural violence they fo conftrain a man, as
to render it impoflible for him to act otherwife than as they
diredt, which is the ftridt fenfe of obligation j but becaufe,
by declaring and exhibiting a penalty againft offenders, they
bring it to pafs that no man can eafily choofe to tranfgrefs
the law, fince, by reafon of the impending correction, com-
pliance is in a high degree preferable to difobedience. And,
even where rewards are propofed as well as punifhments
threatened, the obligation of the law feems chiefly to con-
fift in the penalty: for rewards, in their nature, can only per-
fuade and allure; nothing is compulfory but punifhment.
IT is true, it hath been holden, and very juftly, by the
principal of our, ethical writers, that human laws are bind-
ing upon men's confciences. But if that were the only or
moft forcible obligation, the good only would regard the laws,
and the bad would fet them at defiance. And, true as this
principle is, it muft ftillbe underftood with fome reftriclion.
It holds, I apprehend, as to rights ,- and that, when the law-
has determined the field to belong to Titius, it is matter of
confcience no longer to withhold or to invade it. So alfo
in regard to natural duties, and fuch offences as are mala in
fe : here we are bound in confcience, becaufe we are bound
by Superior laws, before thofe human laws were in being, to
perform the one, and abftain from the other. But in relation
to thofe laws which en.]o'm only pofttive duties, and forbid only
fuch things as are not mala infe, but mala prohibita merely,
[ r8 1 w i tnout an y intermixture of moral guilt, annexing a pe-
nalty to non-compliance ', here I apprehend confcience is
no farther concerned, than by directing a fubmiflion to the
penalty, in cafe of our breach of thofe laws : for otherwife
the multitude of penal laws in a ftate would not only be
looked upon as an impolitic, but would alfo be a very
wicked thing ; if every fuch law were a fnare for the con-
fcience of the fubjeft. But in thefe cafes the alternative is
1 ee Vol. II. page 4ZO.
offered
3, LAWS in general. 58
offered to every Riani f * either abftain frqn} {his, or fubmit fo
" fuch a penalty j" and his confcience will be clear,
ever fide of the alternative be Chinks proper to
Thus, by the ftatutes for preferving game, a penalty is
denounced againft every unqualified perfon that kills a hare,
and againft every perfon who pofieffes a partridge in Auguft.
And fo, too, by other ftatutes, pecuniary penalties are in-
flicted for exercifing trades without ferving an apprentice-
fhip thereto, for not burying the dead in woollen, for not
performing the ftatute-work on the public roads, and for
innumerable other pofitive mifdemefnors. Now thefe prohi-
bitory laws do not make the tranfgreffion a moral offence,
or fin : the only obligation in confcience is to fubmit to the
penalty, if levied. It muft however be obferved, that we
are here fpeaking of laws that are fimply and purely penal,
where the thing forbidden or enjoined is wholly a matter of
indifference, and where the penalty inflicted is an adequate
compenfation for the civil inconvenience fuppofed to arife
from the offence (7). But, where difobedience to the law
(7) This is a doctrine to which the Editor cannot fubfcrihe.
It is an important queftion, and deferves a more extenfiye difcuf-
fion than can conveniently be introduced into a npte. The folu-
tion of it may not only affect the quiet of the minds of confcien-
tious men, but may be the foundation of arguments and deciiions
in every branch of the law. To form a true judgment upon this
fubject, it is neceflary to take into confideration the nature of moral
and pofitive laws. The principle of both is the fame, viz. utility,
or the general happinefs and true interefts of mankind.
Atque ipfa util'itas jufti prope mater et aqui.
But the neceffity of one fet of laws is feen prior to experience ;
of the other, pofterior. A moral rule is fuch, that every man's
reafon (if not perverted) di&ates it to him as foon as he afibciates
with other men. It is univerfal, and muft be the fame in every
part of the world. Do not kill, do not fteal, do not violate promifes.
muft be equally obligatory in England, Lapland, Kamtfchatka,
and New Holland. But a pofitive law is difcovered by experience
F 2 to
59 Of the NATURE of
" commanding what is right, and prohibiting What is
" wrong :" in the explication of which I have endeavoured
to interweave a few ufeful principles concerning the nature
of civil government, and the obligation of human laws. Be-
fore I conclude this fedlion, it may not be amifs to add a
few obfervations concerning the interpretation of laws.
WHEN any doubt arofe upon the conftruftion of the
Roman laws, the ufage was to ftate the cafe to the emperor in
writing, and take his opinion upon it. This was certainly
a bad metnod of interpretation. To interrogate the legifla-
ture to decide particular difputes, is not only endlefs, but
affords great room for partiality and oppreflion. The an-
fwers of the emperor were called his refcriptSj and thefe had
in fucceeding cafes the force of perpetual laws ; though they
ought to be carefully diftinguifhed^ by every rational civi-
lian, from thofe general conltitutions which had only the
nature of things for their guide. The emperor Ma'crirtus,
as his hiftorian CapitolinUs informs us, had once refolved to
abolifh thefe refcripts, and retain only the general edidls j
he could not bear that the hafty and crude anfwers of fuch
princes as Commodus and Caracalla fhould be reverenced as
laws. But Juftinian thought otherwife ", and he has pre-
ferved them all. In like manner the canon laws, or decretal
epiftles of the popes, are all of them refcripts in the ftrifteft
n Injt. I. 2. 6.
them is frequently difficult or impracticable ; or, as the author of
the Doftor and Student has exprefied it with beautiful fimplicity,
*' In every law pofitive well made, is fomewhat of the law of
" reafon and of the law of God ; and to difcern the law of God
" and the law of reafon from the law pofitive, is very hard."
I Dial. c. 4.
An eloquent modern divine has alfo laid, ". Let the great general
" duty of fubmiflion to civil authority be engraven on our hearts,
" wrought into the very habit of the mind, and made a part of
** our elementary morality." Hall's Sermon, Oft. 1803.
fenfe.
2. LAWS in general. 5<)
fenfe. Contrary to all true forms of reafoning, they argue
from particulars to generals.
THE faireft and moft rational method to interpret the will
of the legiflator, is by exploring his intentions at the time
when the law was made, byjigns the moft natural and pro-
bable. And thefe figns are either the words, the context, the
fubjedt-matter, the effects and confequence, or the fpiiit and
reafon of the law. Let us take a fhort view of them all.
1. WORDS are generally to be underftood in their ufual
and moft known fignification ; not fo much regarding the
propriety of grammar, as their general and popular ufe. [ 60 ]
Thus the law mentioned by Puffendorf , which forbad a
layman to lay hands on a prieft, was adjudged to extend to
him who had hurt a prieft with a weapon. Again, terms
of art, or technical terms, muft be taken according to the
acceptation of the learned in each art, trade, and fcience.
So in the act of fettlement, where the crown of England is
limited " to the Princefs Sophia, and the heirs of her body,
" being proteftants," it becomes neceflary to call in the
afliftance of lawyers, to afcertain the precife idea of the
words " heirs of her body" which in a legal fenfe comprize
only certain of her lineal defcendants.
2. IF words happen to be ftill dubious, we may eftablim
their meaning from the context ; with which it may be of
fingular ufe to compare a word or a fentence, whenever they
are ambiguous, equivocal, or intricate. Thus the proeme,
or preamble, is often called in to help the conftrudtion of
an act of parliament. Of the fame nature and ufe is the
comparifon of a law with other laws, that are made by the
fame legiflator, that have fome affinity with the fubjedt, or
that exprefsly relate to the fame point (8). Thus, when the
L. of N. and N. j. 22. 3.
(8) It is an eftablifhed rule of conftruction that ftatutes in part
materidy or upon the fame fubject, muft be conftrued with a refer-
ence to each other ; that is, that what is clear in one ftatute, mall
F 4 be
60 Of the NATURE of INTROD.
law of England declares murder to be felony without benefit
of clergy, we muft refort to the fame law of England to learn
what the benefit of clergy is : and when the common law
cenfures fimoniacal contra&s, it affords great light to the
fubjecT: to confider what the canon law has adjudged to be
fimony.
3. As to ti\& fubjeEl-matter, words are always to be under-
ftood as having a regard thereto; for that is always fup-
pofed to be in the eye of the legiflator, and all his expreflions
directed to that end. Thus, when a law of our Edward III.
forbids all ecclefiaftical perfons to purchase proviftons at Rome,
it might feem to prohibit the buying of grain and other vic-
tual ; but when we confider that the ftatute was made to
reprefs the ufurpations of the papal fee, and that the nomi-
be called in aid to explain what is obfcure and ambiguous in an-
other. Thus the laft qualification aft to kill game (22 & 23
Car. 2. c. 25.) enacts, " that every perfon not having lands and tene-
" ments, or fome other eflate of inheritance, of the clear yearly
" value of ioo/. or for life, or having leafe or leafes of ninety-nine
" years of the clear yearly value of i$ol." (except certain per-
fons), fhall not be allowed to kill game. Upon this ftatute a doubt
arofe, whether the words or for life fhould be referred to the ioo/.
or to the i$ol. per annum. The Court of King's Bench having
looked into the former qualification acts, and having found that it
was clear by the firft qualification ad (13 R. i. ft. i. c. 13.) that
a layman fltould have 40^. a year, and a prieft io/. a year, and
that by the i Ja. c. 27. the qualifications were clearly an eftate of
inheritance of io/. a year, and an eftate for life of 3oA a year,
they prefumed that it ftill was the intention of the legiflature to
make the yearly value of an eftate for life greater than that of an
eftate of inheritance, though the fame proportions were not pre-
ferved ; and thereupon decided, that clergymen, and all others
poffefled of a life eftate only, muft have i5o/. a year to be qualified
to kill game. Loivndes v. Lewis, E. T> 22 Geo. 3.
The fame rule to difcover the intention of a teftator is applied to
wills, viz. the whole of a will fhall be taken under confideration,
in order to decipher the meaning of an obfcure paflage in it.
nations
2. LAWS in general. 60
nations to benefices by the pope were called provifons, we
{hall fee that the reftraint is intended to be laid upon fuch
provifions only.
4. As to the effeEls and confequence, the rule is, that where
words bear either none, or a very abfurd fignification, if lite-
rally underftood, we muft a little deviate from the received
fenfe of them. Therefore the Bolognian law, mentioned by
Puffendorf p , which enacted, " that whoever drew blood in
" the ftreets fhould be punifhed with the utmoft feverity,"
was held after a long debate not to extend to the furgeon
who opened the vein of a perfon that fell down in the ftreet
with a fit.
5. BUT, laftly, the moft univerfal and effectual way of
difcovering the true meaning of a law, when the words are
dubious, is by confidering the reafon and fpirit of it ; or the
caufe which moved the legiflator to enact it. For when
this reafon ceafes, the law itfelf ought likewife to ceafe with
it. An inftance of this is given in a cafe put by Cicero, or
whoever was the author of the treatife infcribed to Heren-
nius q . There was a law, that thofe who in a ftorm forfook
the fhip, fhould forfeit all property therein ; and that the
{hip and lading fiiould belong entirely to thofe who ftaid in
it. In a dangerous tempeft all the mariners forfook the fhip,
except only one fick paflenger, who by reafon of his difeafe
was unable to get out and efcape. By chance the fhip came
fafe to port. The fick man kept pofiefiion, and claimed the
benefit of the law. Now here all the learned agree, that the
fick man is not within the reafon of the law; for the reafon of
making it was, to give encouragement to fuch as fhould
venture their lives to fave the veflel : but this is a merit
which he could never pretend to, who neither ftaid in the
fhip upon that account, nor contributed any thing to its
prefervation (9).
p /. 5. c. ij. 8. i /. i. c. ii.
(9) See a very fenfible chapter upon the interpretation of laws
in general, in Rutherforth's Inftitutes of Natural Law, b. 2. c. 7.
and Domat. on the interpretation of Laws.
FROM
61 Of the NATURE of LAWS. INTROD.
FROM this method of interpreting laws, by the reafon of
them, arifes what we call equity ,- which is thus defined by
Grotius r , " the correction of that, wherein the law (by
L 2 J reafon of its univerfality) is deficient." For, fince in laws
all cafes cannot be forefeen or exprefled, it is neceflary that
when the general decrees of the law come to be applied to
particular cafes, there mould be fomewhere a power vefted
of defining thofe circumftances which (had they been fore-
feen) the legiflator himfelf would have exprefled. And
thefe are the cafes which, according to Grotius, " lex non
" exaEle definit,fed arbitrio boni viri permittit (10)."
EQUITY thus depending, eflentially, upon the particular
circumftances of each individual cafe, there can be no efta-
blifhed rules and fixed precepts of equity laid down, without
deftroying its very eflence, and reducing it to a pofitive law.
And, on the other hand, the liberty of confidering all cafes
in an equitable light muft not be indulged too far, left thereby
we deftroy all law, and leave the decifion of every queftion
entirely in the bread of the judge. And law, without
equity, though hard and difagreeable, is much more de-
firable for the public good, than equity without law : which
would make every judge a legiflator, and introduce moft infi-
nite confufion j as there would then be almoft as many dif-
ferent rules of action laid down in our courts, as there are
differences of capacity and fentiment in the human mind.
r de aequitate, 3.
( 10) The only equity, according to this defcription, which exifts
in our government, either refides in the king, who can prevent the
fummumjus from becoming fumma injuria, by an abfolute or a con-
ditional pardon, or in juries, who determine whether any, or to
what extent, damages mall be rendered. But equity, as here ex-
plained, is by no means applicable to the court of chancery ; for
the learned Judge has elfewhere truly faid, that " the fyftem of our
" courts of equity is a laboured connected fyftem, governed by
" eftablimed rules, and bound down by precedents, from which
" they do not depart, although the reafon of fome of them may
" perhaps be liable to objeftion." 3 Vol. 432.
SECTION THE THIRD.
OF THE LAWS OF ENGLAND.
HPHE municipal law of England, or the rule of civil
-* conduct prefcribed to the inhabitants of this kingdom,
may with fufncient propriety be divided into two kinds : the
lex non fcripta y the unwritten or common law ; and the /etc
fcripta, the written or ftatute law.
THE lex non fcripta, or unwritten law, includes not only
general cujioms, or the common law properly fo called ; but
alfo the particular cu/ioms of certain parts of the kingdom ;
and likewife thofe particular !aivs y that are by cuftom ob-
ferved only in certain courts and jurifdi&ions.
WHEN I call thefe parts of our law leges non fcrlptae t I
would not be underftood as if all thofe laws were at prefent
merely oral, or communicated from the former ages to the
prefent folely by word of mouth. It is true indeed that, in
tne profound ignorance of letters which formerly overfpread
the whole weftern world, all laws were entirely traditional,
for this plain reafon, becaufe the nations among which they
prevailed had but little idea of writing. Thus the Britifh as
well as the Gallic Druids committed all their laws as well as
learning to memory a ; and it is faid of the primitive Saxons
here, as well as their brethren on the continent, that leges
fola memoria et ufu retinelant b . But with us, at prefent, the
monuments and evidences of our legal cuftoms are contained
in the records of the feveral courts of juftice, in books of
Caef. de S. G. lit. 6. c. 13. b Spelm. Gl. 36*.
reports
64 Of the LAWS INTROD,
reports and judicial decifions, and in the treatifes of learned
fages of the profeflion, preferved and handed down to us
from the times of higheft antiquity. However, I therefore
tf yle thefe parts of our law leges non fcriptae, becaufe their
original inftitution and authority are not fet down in writing,
as as of parliament are, but they receive their binding
power, and the force of laws, by Jong and immemorial
ufage, and by their univerfal reception throughout the king-
dom. In like manner as Aulus Gellius defines the jus non
fcriptum to be that which is "tacito et illiterate bominum
" confenfu et moribus exprejjitm"
OUR antient lawyers, and particularly Fortefcue c , infift
with abundance of warmth that thefe cufloms are as old as
the primitive Britons, and continued down, through the
feveral mutations of government and inhabitants, to the pre-
fent time, unchanged and unadulterated. This may be the
cafe as to fome ; but in general, as Mr. Selden in his notes
obferves, this aflertion muft be underftood with many grains
of allowance ; and ought only to fignify, as the truth feems
to be, that there never was any formal exchange of one fyftem
of laws for another ; though doubtlefs, by the intermixture
of adventitiouc nations, the Romans, the Picls, the Saxons,
the Danes, and the Normans, they muft have infenfibly intro-
duced and incorporated many of their own cuftoms with thofe
that were before eftabliftied : thereby in all probability im-
proving the texture and wifdom of the whole by the accumu-
lated wifdom of divers particular countries. Our laws, faith
Lord Bacon d , are mixed as our language : and as our language
is fo much the richer, the laws are the more complete.
AND indeed our antiquaries and early hiftorians do all
pofitively aflure us, that our body of laws is of this com-
pounded nature. For they tell us, that in the time of Alfred
the local cuftoms of the feveral provinces of the kingdom
were grown fo various, that he found it expedient to compile
his dome-bookj or liber judicialis, for the general ufe of the
c e , 1 7. d See his>ropofals for a digeft.
whole
3. of ENGLAND. 65
whole kingdom. This book is faid to have been extant fo
late as the reign of king Edward the fourth, but is now un-
fortunately loft. It contained, we may probably fuppofe,
the principal maxims of the common law, the penalties for
mifdemefnors, and the forms of judicial proceedings. Thus
much may at leaft be collected from that injunction to ob-
ferve it, which we find in the laws of king Edward the elder,
the fon of Alfred e . " Omnibus qui reipublicae praefunt etiam
" atque etiam mando, ut omnibus aequos fe praebeant judices,
" perinde ac injudiciali libro (Saxonice, bom boc) fcriptum ha-
" betur ; nee quicquam formident quin jus commune ', (Saxonict,
" jiolcnihce) audafter libereque dicant."
BUT the irruption and eftablifhment of the Danes in Eng-
land, which followed foon after, introduced new cuftoms,
and caufed this code of Alfred in many provinces to fall into
difufe j or at leaft to be mixed and debafed with other laws
of a coarfer alloy. So that about the beginning of the
eleventh century there were three principal fyftems of laws
prevailing in different diftriclis. i. The Mercen-Lage, or
Mercian laws, which were obferved in many of the midland
counties, and thofe bordering on the principality of Wales,
the retreat of the ancient Britons ; and therefore very pro-
bably intermixed with the Britifti or Druidical cuftoms.
2. The WeJl-Saxon-Lage, or laws of the Weft Saxons,
which obtained in the counties to the fouth and weft of the
ifland, from Kent to Devonfliire. Thefe were probably
much the fame with the laws of Alfred above mentioned,
being the municipal law of the far moft confiderable part of
his dominions, and particularly including Berkfhire, the feat
of his peculiar refidence. 3. The Dane-Lage, or Danifh
( law, the very name of which fpeaks its original and com-
pofition. This was principally maintained in the reft of the
midland counties, and alfo on the eaftern coaft, the part
moft expofed to the vifits of that piratical people. As for
the -very northern provinces, they were at that time under a
diftincT; government f .
OUT
66 Of the LAWS INTROD.
OUT of thefe three laws Roger Hoyeden and Ranulphus
Ceftrenfis h inform us, king Edward the confeflbr extracted
one uniform law or digeft of laws, to be obferved throu.gh-
out the whole kingdom ; though Hoveden and the author
of an old manufcript chronicle ' affure us likewife, that this
work was projected and begun by his grandfather king
Edgar. And indeed a general digeft of the fame nature
has been conftantly found expedient, and therefore put in
practice by other great nations, which were formed from an
aflemblage of little provinces governed by peculiar cuftoms.
As in Portugal, under king Edward, about the beginning of
the fifteenth century k : in Spain, under Alonzo X., who
about the year 1250 executed the plan of his father St. Fer-
dinand, and collected all the provincial cuftoms into one
uniform law, in the celebrated code entitled las partidas } :
and in Sweden, about the fame aera ; when a univerfal body
of common law was compiled out of the particular cuftoms
eftablifhed by the laghman of every province, and entitled
the land's lagh, being analogous to the common law of
England m .
BOTH thefe undertakings of king Edgar and Edward the
confeflbr, feem to have been no more than a new edition, or
frefh promulgation of Alfred's code or dome-book, with
fuch additions and improvements as the experience of a
century and a half had fuggefted. For Alfred is generally
ftyled by the fame hiftorians the legum ^nglicanarum conditor,
as Edward the confeflbr is the reftitutor. Thefe however are
the laws which our hiftorians fo often mention under the name
of the laws of Edward the confeflbr j which our anceftors
ftruggled fo hardly to maintain under the firft princes of the
Norman line j and which fubfequent princes fo frequently
promifed to keep and reftore, as the moft popular act they
could do, when prefled by foreign emergencies or domeftic
difcontents. Thefe are the laws that fo vigoroufly with-
e in Hen. II. k Mod. Un. Hift. xxii. 135.
h in Ed-ui. Cenfe/or. l Ibid. xx. an.
1 in Seld. ad aJmer. 6. m Ibid, xxxiii. 31. 58.
ftood
3 of ENGLAND. 67
ftood the repeated attacks of the civil law ; which eftablifhe4
in the twelfth century a new Roman empire over moft of
the dates of the continent : ftates that have Joft, and per-
haps upon that account, their political liberties j while the
free conftitution of England, perhaps upon the fame ac-
count, has been rather improved than debafed. Thefe, in
fhort, are the laws which gave rife and original to that col-
lection of maxims and cuftoms which is now known by the
name of the common law. A name either given to it, in
contradiftinclion to other laws, as the itatute law, the civil
law, the law merchant, and the like } or more probably, as
a law common to all the realm, the jus commune oxfolcright
mentioned by king Edward the elder, after the abolition of
the feveral provincial cuftoms and particular laws before
mentioned.
BUT though this is the moft likely foundation of this col-
lection of maxims and cuftoms, yet the maxims and cuftoms
fo collected, are of higher antiquity than memory or hiftory
can reach (1)5 nothing being more difficult than to afcertairi
the precife beginning and firft fpring of an antient and long-
eftabliftied cuftom. Whence it is that in our law the good-
nefs of a cuftom depends upon its having been ufed time
out of mind, or in the folemnity of our legal phrafe, time
whereof the memory of man runneth not to the contrary (2).
This it is that gives it it's weight and authority : and of this
nature are the maxims and cuftoms wlijch compofe the com-
mon law, or lex tionfcripta, of this kingdom.
THIS unwritten or common law is properly diftinguifh-
able into three kinds: i. General cuftoms ; which are the
universal rule of the whole kingdom, and form the common
law, in its ftricter and more ufual fignilication. 2, Parti-
( I ) What Lord Hale fays is undoubtedly true, that " the ori-
" ginal of the common law is as undUcoverable as the head of the
Nile." Hift. Com. Law, 55.
(z) See note 10, p. 76.
cular
67 Of the LAWS INT ROD*
cular cuftoms ; which for the moft part aftecl: only the in-
habitants of particular diftricts. 3. Certain particular laws,;
which by cuftom are adopted and ufed by fome particular
courts, of pretty general and extenfive jurifdiclion.
68 ] I. As to general cuftoms, or the common law, properly
fo called ; this is that law by which proceedings and deter-
minations in the king's ordinary courts of juftice are guided
and directed. This, for the moft part, fettles the courfe in
which lands defcend by inheritance ; the manner and form
of acquiring and transferring property ; the folemnities and
obligation of contracts ; the rules of expounding wills, deeds,
and a&s of parliament ; the refpetive remedies of civil
injuries ; the feveral fpecies of temporal offences, with the
manner and degree of punifhment ; and an infinite number
of minuter particulars, which diffufe themfelves as exten-
fively as the ordinary diftribution of common juftice requires.
Thus, for example, that there mall be four fuperior courts of
record, the chancery, the king's bench, the common pleas,
and the exchequer; that the eldeft fon alone is heir to his
anceftor ; that property may be acquired and transferred
by writing ; that a deed is of no validity unlefs fealed and
delivered ; that wills (hall be conftrued more favourably,
and deeds more ftriUy ; that money lent upon bond is re-
coverable by action of debt ; that breaking the public peace
is an offence, and punifhable by fine and imprifonment : .
all thefe are dotrines that are not fet down in any written
ftatute or ordinance, but depend merely upon immemorial
ufage, that is, upon common law, for their fupport.
SOME have divided the common law into two principal
grounds or foundations; i. Eftablifhed cuftoms; fuch as
that, where there are three brothers, the eldeft brother {hall
be heir to the fecond, in exclufion of the youngeft ; and
2. Eftablifhed rules and maxims : as, " that the king can do
" no wrong, that no man mall be bound to accufe him-
" felf," and the like. But I take thefe to be one and the
fame thing. For the authority of thefe maxims refts entirely
upon general reception and ufage : and the only method
of
3 of ENGLAND. 68
of proving, that this or that maxim is a rule of the common
law, is by (hewing that it hath been always the cuftom to
obferve it.
BUT here a very natural, and very material, queflion arifes l [
how are thefe cuftoms or maxims to be known, and by whom
is their validity to be determined ? The anfwer is, by the
judges in the feveral courts of juftice. They are the depofit-
aries of the laws, the living oracles, who muft decide in all
cafes of doubt, and who are bound by an oath to decide ac-
cording to the law of the land. Their knowledge of that law
is derived from experience and ftudy ; from the " -viginti an-
" norum lucubration^;? which Fortefcue 11 mentions; and
from being long perfonally accuftomed to the judicial deci-
fions of their predeceflbrs. And indeed thefe judicial decifioris
are the principal and moft authoritative evidence that can .
be given of the exiftence of fuch a cuftom as {hall form
a part of the common law. The judgment itfelf, and all the
proceedings previous thereto, are carefully regiftered and pre-
ferved, under the name of records^ in public repofitaries fet
apart for that particular purpofe ; and to them frequent re-
courfe is had, when any critical queftion arifes, in the deter-
mination of which former precedents may give light or afiift-
ance. And therefore, even fo early as the conqueft, we find
the <f praeteritorum metnoria eventorum" reckoned up as one of
the chief qualifications of thofe, who were held to be " legibus
" patriae optime injlituti " For it is an eftablifhed rule to
abide by former precedents, where the fame points come again
in litigation : as well to keep the fcale of juftice even and
fteady, and not liable to waver with every new judge's opi-
nion ; as alfo becaufe the law in that cafe being folemnly
declared and determined, what before was uncertain, and per-
haps indifferent, is now become a permanent rule, which it
is not in the breaft of any fubfequent judge to alter or vary
from, according to his private fentiments : he being fworn to
determine, not according to his own private judgment, but
n cap, 8. Seld. review of Tith. c. 8.
VOL. I. G according
69 Of the LAWS INTROD.
according to the known laws and cuftoms of the land : not
delegated to pronounce a new law, but to maintain and ex-
pound the old one. Yet this rule admits of exception, where
the former determination is moft evidently contrary to reafon -,
much more if it be clearly contrary to the divine law. But
even in fuch cafes the fubfequent judges do not pretend to
make a new law, but to vindicate the old one from mifre-
prefentation. For if it be found that the former decifion is
manifeflly abfurd or unjuft (3), it is declared not that fuch
a fentence was bad /a-w, but that it was not law, that is, that
it is not the eftablifhed cuftom of the realm, as has been erro-
neoufly determined. And hence it is that our lawyers are
with juftice fo copious in their encomiums on the reafon of the
common law ; that they tell us, that the law is the perfection
of reafon, that it always intends to conform thereto, and that
what is not reafon is not law. Not that the particular rea-
fon of every rule in the law can at this diftance of time be
always precifely affigned ; but it is fufficient that there be
nothing in the rule flatly contradictory to reafon, and then the
( 3 ) But it cannot be diffembled that both in our law, and in all
other laws, there are decifions drawn from eftablifhed principles
and maxims, which are good law, though fuch decifions may be
both manifeflly abfurd and unjuft. But notwithstanding this, they
muft be religioufly adhered to by the judges in all courts, who are
not to affume the characters of legiflators. It is their province
jus dicere, and not jus dare. Lord Coke, in his enthufiaftic fondnefs
for the common law, goes farther than the learned Commentator ;
he lays down, that argumentum ab inconvenient! plurimum valet in
lege, becaufe nihil quod ejl inconvenient efl licitum. Mr. Hargrave's
note upon this is well conceived and expreft : " Arguments from
" inconvenience certainly deferve the greateft attention, and,
" where the weight of other reafqning is nearly on an equipoife,
" ought to turn the fcale. But if the rule of law is clear and
" explicit, it is in vain to infift upon inconveniences ; nor can it be
" true that nothing, which is inconvenient, is lawful, for that
" fuppofes in thofe who make laws a perfeftion, which the mofl
" exalted human wifdom is incapable of attaining, and would be
" an invincible argument againft ever changing the law." Harg.
Co. Liu. 66.
law
3- /ENGLAND. 79
law will prefume it to be well founded ''. And it hath been
an antient obfervation in the laws of England, that whenever
a (landing rule of law, of which the reafon perhaps could
not be remembered or difcerned, hath been wantonly broken
in upon by ftatutes or new refolutions, the wifdom of the
rule hath in the end appeared from the inconveniences that
have followed the innovation.
THE doctrine of the law then is this : that precedents and
rules muft be followed, unlefs flatly abfurd or unjuft (4) : for
though their reafon be not obvious at firft view, yet we owe
fuch a deference to former times as not to fuppofe that they
acted wholly without confideration. To illuftrate this doctrine
by examples. It has been determined, time out of mind, that
a brother of the half blood mail never fucceed as heir to the
> Herein agreeing with the civil law, " eorum, quac conjiituuntur, inquiri
Ff. I. 3. ao. 21. " Non omnium, quae " nan ofortet : alioquin multa ex bit)
" a major ibus noftrii ccnjlituta funt t " quae certa funt, fubvertuntur"
" ratio reddl potejt. Et idea rationts
(4) Precedents and rules muft be followed even when they are
flatly abfurd and unjuft, if they are agreeable to antient principles.
If an aft of parliament had been brought in at the clofe of a feffion,
and paffed on the laft day, which made an innocent aft criminal,
or even a capital crime ; and if no day was fixed for the commence-
ment of its operation, it had the fame efficacy as if it had been
pafled on the firft day of the feffion, and all who, during a long
feffion, had been doing an aft, which at the time was legal and
inofFenfive, were liable to fuffer the punimment prefcribed by the
ftatute. (4 Injl. 25. 4 Te rm Rep. 660.) This was both flatly
abfurd and unjuft : but it was the clear law of England, and could
only be abrogated by the united authority of the king, lords, and
commons, in parliament afiembled ; who by the 33 Geo. III. c. 13.
enafted, that when the operation of an aft of parliament is not
direfted to commence from any time fpecified within it, the clerk
of the parliaments mail endorfe upon it the day upon which it
receives the royal aflent, and that day (hall be the date of its
commencement. Many other fimilar inftances might be adduced.
It is therefore juftly faid in the civil law, that non omnium, qua
a majoribus conjlituta funt, ratio reddi poteft ; et idea ratlones eorum
qu/e conftituuntur inquiri non ofortet, alioquin multa ex his qua certa
funt fubvertuntur. Domat. 8.
G i eftate
7 Of Me LAWS INTROD.
eftate of his half brother, but it {hall rather efcheat to the
king, or other fuperior lord. Now this is a pofitive law,
fixed and eftablifhed by cuftom, which cuftom is evidenced
by judicial decifions ; and therefore can never be departed
from by any modern judge without a breach of his oath, and
the law. For herein there is nothing repugnant to natural
juftice (5) j though the artificial reafon of it, drawn from the
feodal law, may not be quite obvious to every body. And
therefore, though a modern judge, on account of a fuppofed
hardfhip upon the half brother, might wifti it had been other-
wife fettled, yet it is not in his power to alter it. But if any
court were now to determine, that an elder brother of the
half blood might enter upon and feize any lands that were pur-
chafed by his younger brother, no fubfequent judges would
fcruple to declare that fuch prior determination was unjuft,
was unreafonable, and therefore was not law. So that the
laiv, and the opinion of the judge, are not always convertible
terms, or one and the fame thing ; fince it fometimes may
happen that the judge may mi/lake the law. Upon the whole,
however, we may take it as a general rule, " that the deci-
" fions of courts of juftice are the evidence of what is
" common law :" in the fame manner as, in the civil law,
what the emperor had once determined was to ferve for a
guide for the future q .
THE decifions therefore of courts are neld in the nigheft
regard, and are not only preferved as authentic records in the
1 " Si imfenalts majejtas caufam " full neftro imfffio funt,fciant bane
" cignitionaliter etcaminavcrit, et far- " ej/e legcm, lion folum llli caufae fro
" tibus, cominus conjlitutis fcntentiam " qua frodufia eft, fed et in omnibus
" dixrrit, omnes omnino judices, qui " Jimilibut" C. 1.14. 12.
(5) But it is certainly repugnant to natural reafon, where a
father leaves two fons by two different mothers, and dies inteftate,
and a large ettate defcends to his eldeft fon, who dies a minor or
inteftate, that this eftate mould go to the lord of the manor or to
the king, rather than to the younger fon. When any fuch cafe of
great notoriety occurs, this law will probably then appear fo abfurd
and unreafonable, that it will not be fuffered to remain long after-
wards a reproach to our fyftem of jurifprudence. See vol. ii. p. 23 1 .
* treafuries
3. of ENGLAND. 71
treafuries of the feveral courts, but are handed out to public
view in the numerous volumes of reports which furnifti the
lawyer's library. Thefe reports are hiftories of the feveral
cafes, with a Ihort fummary of the proceedings, which are
preferved at large in the record ; the arguments on both fides
and the reafons the court gave for it's judgment; taken
down in fhort notes by perfons prefent at the determination.
And thefe ferve as indexes to, and alfo to explain, the re-
cords ; which always, in matters of confequence and nicety,
the judges direct to be fearched. The reports are extant in
a regular feries from the reign of king Edward the fecond
inclufive ; and from his time to that of Henry the eighth
were taken by the prothonotaries, or chief fcribes of the C 7 2 3
court, at the expence of the crown, and publifhed annually
whence they are known under the denomination of the year-
books. And it is much to be wifhed that this beneficial cuftom
had, under proper regulation, been continued to this day :
for, though king James the firft at the inftance of lord Bacon
appointed two reporters r with a handfome ftipend for this
purpofe, yet that wife inftitution was foon neglected, and
from the reign of Henry the eighth to the prefent time this
talk has been executed by many private and contemporary
hands ; who, fometimes through hafte and inaccuracy, fome-
times through miftake and want of fkill, have publifhed very
crude and imperfect (perhaps contradictory) accounts of one
and the fame determination. Some of the moft valuable of
the antient reports are thofe publiftied by lord chief juftice
Coke ; a man of infinite learning in his profefEon, though
not a little infected with the pedantry and quaintnefs of the
times he lived in, which appear ftrongly in all his works.
However, his writings are fo highly efteemed, that they are
generally cited without the author's name ",
r Pat. 15 Jac. Z.f. 18. 17 Rym. 16. authors. The reports of judge Crokeare
s His reports, for inftance, are llyled, alfo cited in a peculiar manner, by the
xar' t%o%iv the reports ; and in quoting name of thofe princes in whofe reigns
them we ufually fay, I or a Rep. not the cafe reported in his three volumes
I or 2 Coke's Rep. as in citing other were determined; viz, queen Elizabeth,
G 3 king
72 Of the LAWS INTROD.
BESIDES thefe reporters, there are alfo other authors, to
"whom great veneration and refpeft is paid by the ftudents
of the common law. Such are Glanvil and Bra&on,
Britton and Fleta, Hengham and Littleton, Statham,
Brooke, Fitzherbert, and Staundforde, with fome others of
antient date ; whofe treatifes are cited as authority, and are
evidence that cafes have formerly happened in which fuch
and fuch points were determined, which are now become
fettled and firft principles. One of the laft of thefe methodi-
cal writers in point of time, whofe works are of any intrinfic
authority in the courts of juftice, and do not entirely depend
r -- -j on the ftrength of their quotations from older authors, is the
fame learned judge we have juft mentioned, fir Edward
Coke ; who hath written four volumes of inftitutes, as he
is pleafed to call them, though they have little of the inftitu-
tional method to warrant fuch a title. The firft volume is a
very extenfive comment upon a little excellent treatife of te-
nures, compiled by judge Littleton, in the reign of Edward
the fourth. This comment is a rich mine of valuable com-
mon law learning, collected and heaped together from the
antient reports and year-books, but greatly defective in me-
thod s . The fecond volume is a comment upon many old
ats of parliament, without any fyftematical order; the third,
a more methodical treatife of the pleas of the crown ; and
the fourth, an account of the feveral fpecies of courts l .
AND thus much for the firft ground and chief corner ftone
of the laws of England, which is general immemorial cuftom
or common law, from time to time declared in the decisions
of the courts of juftice ; which decifions are preferved among
our public records, explained in our reports, and digefted
king James, and king Charles the firft ; without any author's name. An hono-
as well as by the number of each vo- rary diftindlion, which, we obferved, is
lume. For fometimes we call them 1,2, paid to the works of no other writer ;
and 3 Cro. but more commonly Cro. the generality of reports and other tradls
Eliz. Cro. Jar. and Cro. Car. being quoted in the name of the compiler,
s It is ufually cited either by the as a Ventris, 4Lonard, i Siderfin, and
name of Co. Litt. or as i Inft. the like.
Thefe are cited as a, 3, or 4 Inft,
for
3' /ENGLAND. 73
for general ufe in the authoritative writings of the venerable
fages of the law.
THE Roman law, as practifed in the times of it's liberty,
paid alfo a great regard to cuftom ; but not fo much as our
law : it only then adopting it, when the written law was
deficient; though the reafons alleged in the digeft" will
fully juftify our practice, in making it of equal authority
with, when it is not contradicted by, the written law.
" For fince," fays Julianus, " the written law binds us for
" no other reafon but becaufe it is approved by the judgment
" of the people, therefore thofe laws which the people have
" approved without writing ought alfo to bind every body.
" For where is the difference, whether the people declare
" their aflent to a law by fuffrage or by a Uniform courfe of
" acting accordingly ?" Thus did they reafon while Rome
had fome remains of her freedom ; but when the imperial ty-
ranny came to be fully eftablifhed, the civil laws fpeak a very
different language. " Quod principi placuit (6) legis habet vigo-
" rem, cumpopulus ei y et in eum omne fiwmimperlum etpotejlatem
" conferat" fays Ulpian w . " Imperator folus et conditor et inter-
" pres legis exiftimatur" fays the code x . And again, "facri-
u Ff. i. 3. 31. w Ff. i. 4. i. * C. 1. 14. la*
(6) This is the fir ft fentence of the definition of a conftitution
in the beginning of the Inftitutes. It ought to be cited at length,
that it may receive the execration it deferves. It is no wonder
from this fpecimen, that the civil law fhould have experienced
fuch protection and patronage from all the defpotic governments
of Europe, and fuch oppofition and deteftation from the fturdy
Englifti barons.
CONSTITUTIO.
Sed et quod principi placuit, legis habet vigor em : quum lege regia,
qu<e de ejus imperio lata ejl> populus ei, et in eum omne imperium fuum
et potcftatem concedat. Quodcunquc ergo imperator per epiftolatn con-
Jlituit ; vel cognofcens decrevit, vel edifto prtcepit, legem ejje conftat ;
h<ecfunt, qux conftitutiones appellantur. Plane ex bit qu&dam funt
fierfonales, quit nee ad exemplum trahuntur, quoniam non hoc princefs
vult, nam quod alicui ob merilum induljit, velji quam pcenam irrogavit,
vel Ji cut fine exemplo fubvenit, perfonam non tranfgreditur. Alia:
autem, quum generates Jint, omnesprocul dubio tenent. Inft, I. 2. 6.
G 4 legii
74 Of the LAWS INTROD.
< legii injlar eft refcripto principis obviari V And indeed it
is one of the chara&eriftic marks of Englifh liberty, that our
common law depends upon cuftom ; which carries this in-
ternal evidence of freedom along with it, that it probably wa
introduced by the voluntary confent of the people (7).
y c. i. a. j.
(7) Lord chief juftice Wilmot has faid, " the ftatute law
" is the will of the legiflature in writing ; the common law is
" nothing elfe but ftatutes worn out by time. All our law began by
" confent of the legiflature, and whether it is now law by ufage
" or writing is the fame thing. ( 2 Wtlf. 348. ) And ftatute law
" and common law both originally flowed from the fame foun-
" tain." (/. 350. ) And to the fame effect lord Hale declares,
that many of thofe things that we now take for common law,
f were undoubtedly afts of parliament, though not now to be
" found of record." (Hi/I. Com. Law, 66.) Though this is the
probable origin of the greateft part of the common law, yet much
of it certainly has been introduced by ufage, even of modern date,
which general convenience has adopted. As in the civil law, fine
fcr'tpto jus venity quod ufus approbavit, nam diuturni mores confenfu
utentlum comprobatt legem imitantur. ( Inft. I. 2.9.) Of this nature
in this country is the law of the road, viz. that horfes and carriages
mould refpeftively keep the left fide of the road, and confequently
in meeting mould pafs each other on the whip-hand. This law has
not been ena&ed by ftatute, and is fo modern, that perhaps this
is the firft time that it has been noticed in a book of law. But
general convenience difcovered the neceffity of it, and the judges
have fo far confirmed^, as to declare frequently at nifi prius, that
he who difregards this falutary rule is anfwerable in damages for all
the confequences. The aftion, in which this rule is applied, viz.
for negligently driving a carriage, by which any one is injured, is
as antient as the common law ; but the uniform determination of
the judges, that the non-obfervance of this rule is negligence, is
of modern date.
It is now decided, that, where an injury is done by a man's
driving his carriage on the wrong fide of the road, the action
muft be trefpafs vi et arm'ts. Lord Ellenborough and the court
laid down generally, that, where there is an immediate injury from
an immediate ad of force, the proper remedy is trefpafs, and wil-
fulnefs is not neceflary to conftitute trefpafs. 3 Eaft, 593.
When
3. tf ENGLAND. 74
II. THE fecond branch of the unwritten laws of England
are particular cuftoms, or laws which aflfeft only the inha-
bitants of particular diftricls.
THESE particular cuftoms, or fome of them, are without
doubt the remains of that multitude of local cuftoms before
mentioned, out of which the common law, as it now ftands,
was collected at firft by king Alfred, and afterwards by king
Edgar and Edward the confeflbr ; each diftricl: mutually fa-
crificing fome of its own fpecial ufages, in order that the
whole kingdom might enjoy the benefit of one uniform and
univerfal fyftem of laws. But for reafons that have been
now long forgotten, particular counties, cities, towns, ma-
nors, and lordfhips, were very early indulged with the privi-
lege of abiding by their own cuftoms, in contradiftinclion to
the reft of the nation at large : which privilege is confirmed
to them by feveral a&s of parliament z .
SUCH is the cuftom of gavelkind in Kent and fome other
parts of the kingdom (though perhaps it was alfo general till
the Norman conqueft), which ordains, among other things, [ 75 ]
that not the eldeft fon only of the father {hall fucceed to his
inheritance, but all the fons alike : and that, though the an-
ceftor be attainted and hanged, yet the heir fhall fucceed to
his eftate, without any efcheat to the lord. Such is the
cuftom that prevails in divers antient boroughs, and therefore
called borough-englifh, that the youngeft fon fhall inherit
the eftate, in preference to all his elder brothers. Such is
the cuftom in other boroughs that a widow fhall be entitled,
for her dower, to all her hufband's lands ; whereas at the
common law fhe fhall be endowed of one third part only. '
Such alfo are the fpecial and particular cuftoms of manors,
of which every one has more or lefs, and which bind all the
copyhold and cuftomary tenants that hold of the faid ma*
z Mag. Cart. 9 Hen. III. c. 9 (l. ., c. i, and a Hen, IV, c. i.
i Edw. III. ft. a. c . 9. 14 Edw. III.
When two carriages meet, the impaft is a reciprocal aft of
force ; but the force of that only is wrongful, which is on the
wrong fide of the way.
nors.
75 Of the LAWS INT ROD.
nors. Such likewife is the cuftom of holding divers inferior
courts, with power of trying caufes, in cities and trading
towns, the right of holding which, when no royal grant can
be (hewn, depends entirely upon immemorial and eftablifhed
ufage. Such, lallly, are many particular cuftoms within the
city of London, with regard to trade, apprentices, widows,
orphans, and a variety of other matters. All thefe are con-
trary to the general law of the land, and are good only by
fpecial ufage : though the cuftoms of London are alfo con-
firmed by aft of parliament a .
To this head may moft properly be referred a particular
fyftem of cuftoms ufed only among one fet of the king's
fubje&s, called the cuftom of merchants, or lex mercatoria :
which, however different from the general rules of the com-
mon law, is yet engrafted into it, and made a part of it b ;
being allowed, for the benefit of trade, to be of the utmoft
validity in all commercial tranfaftions : for it is a maxim of
law, that " cuilibet in fua arte credendum eft." (8)
THE rules relating to particular cuftoms regard either the
proof of their exiftence ; their legality when proved ; or their
8 Rep. 116. Cro. Car. 374. b Winch. 24.
( 8 ) The lex mercatoria, or the cuftom of merchants, like the
lex et confuetudo parliament^ defcribes only a great divifion of the
law of England. The laws relating to bills of exchange, infurance,
and all mercantile contracts, are as much the general law of
the land, as the laws relating to marriage or murder. But the
expreffion has frequently led merchants to fuppofe, that all their
new fafhions and devices immediately become the law of the land :
a notion which, perhaps, has been too much encouraged by the
courts. Merchants ought to take their law from the courts, and
not the courts from merchants : and when the law is found incon-
venient for the purpofes of extended commerce, application ought
to be made to parliament for redrefs. This is agreeable to the
opinion of Mr. Juftice Fofter, who maintains, that " the cullom
" of merchants is the general law of the kingdom, and therefore
" ought not to be left to a jury after it has been fettled by judicial
"determinations." 2 Bur. 1226.
ufual
3. of ENGLAND. fj
ufual method of allowance. And firft we will confider the
rules of proof.
As to gavelkind, and borough-englifh, the law takes par- [ 76 ]
ticular notice of them c , and there is no occafion to prove that
fuch cuftoms actually exift, but only that the lands in quef-
tion are fubjet thereto. All other private cuftoms muft be
particularly pleaded d , and as well the exiftence of fuch cuf-
toms muft be (hewn, as that the thing in difpute is within
the cuftom alleged. The trial in both cafes (both to fhew
the exiftence of the cuftom, as, " that in the manor of Dale
" lands mall defcend only to the heirs male, and never to
" the heirs female ;" and alfo to fhew, " that the lands in
" queftion are within that manor") is by a jury of twelve
men, and not by the judges; except the fame particular
cuftom has been before tried, determined, and recorded in
the fame court e .
THE cuftoms of London differ from all others in point of
trial : for, if the exiftence of the cuftom be brought in quef-
tion, it fhall not be tried by a jury, but by certificate from
the lord mayor and aldermen by the mouth (9) of their re-
corder f ; unlefs it be fuch a cuftom as the corporation is itfelf
interefted in, as a right of taking toll, sV. for then the law
permits them not to certify on their own behalf *.
c Co. Litt. 175. f Cro. Car. 516.
d Litt. 465. * Hob. 85.
e Dr. & St. 1. 10.
(9) Sir James Burrow has reported the mode by which the
recorder certifies the cuftom with fuch a degree of accuracy, as to
fpecify which of his four gowns he mail wear upon the occafion.
(i Bur. 248.) When a cuftom has been once certified by the
recorder, the judges will take notice of it, and will not fuffer
it to be certified a fecond time. (Doug. 365.) Lord Mansfield
nonfuited the plaintiff in an aftion brought againft the defendant
on the cuftom of London, for calling the plaintiff a whore, the
plaintiff not being able to prove the cuftom of inflicting a corporal
punifhment, by carting women of that defcription. But in the
city court fuch an action is maintained, becaufe they take notice
of their own cuftoms without proof. Ib.
WHEN
76 Of the LAWS INTROD.
WHEN a cuftom is actually proved to exift, the next in-
quiry is into the legality of it ; for, if it is not a good cuftom,
it ought to be no longer ufed ; " Mains ufus abolendtts eft"
is an eftablimed maxim of the law b . To make a particular
cuftom good, the following are neceflary requisites ;
T. THAT it have been ufed fo long, that the memory of
man runneth not to the contrary. So that if any one can
(hew the beginning of it (10), it is no good cuftom. For
which reafon no cuftom can prevail againft an exprefs at of
C 77 ] parliament (i i) ; fince the ftatute itfelf is a proof of a time
when fuch a cuftom did not exift \
2. IT muft have been continued. Any interruption would
caufe a temporary ceafing : the revival gives it a new begin-
ning, which will be within time of memory, and thereupon
the cuftom will be void. But this muft be underftood with
regard to an interruption of the right ; for an interruption of
the poffeffion only, for ten or twenty years, will not deftroy the
cuftom k . As if the inhabitants of a parifh have a cuftomary
right of watering their cattle at a certain pool, the cuftom is
not deftroyed, though they do not ufe it for ten years j it only
becomes more difficult to prove : but if the right be any how
discontinued for a day, the cuftom is quite at an end,
h Litt. aia. 4 Inft, 174. ' Co. Litt. 113. k Ibid. 114.
( I o) If any one can fhew the beginning of it within legal memory,
that is within any time fince the firft year of the reign of Richard
the firft, it is not a good cuftom.
( 1 1 ) Therefore a cuftom that every pound of butter fold in a
certain market mould weigh 1 8 ounces is bad, becaufe it is directly
contrary to the 13 & 14 Car. II. c. 26. which directs, that every
pound, throughout the kingdom, (hall contain 16 ounces. (3 T.
R. 271.) But there could be no doubt, I conceive, but it
would be a good cuftom to fell lumps of butter containing 18
ounces ; for if it is lawful to fell a pound, it muft be fo to fell a
pound and any aliquot part of one. The inconvenience and
deception arife from calling that a pound in one place which is not
a pound in another,
3- IT
3. of ENGLAND. 77
3. IT muft have been peaceable, and acquiefced in; not
fubjeft to contention and difpute k . For as cuftoms owe
their original to common confent, their being immemorially
difputed, either at law or otherwife, is a proof that fuch
confent was wanting.
4. CUSTOMS muft be reafonable l ; or rather, taken nega-
tively, they muft not be unreafonable. Which is not always,
as fir Edward Coke fays m , to be underftood of every unlearn-
ed man's reafon, but of artificial and legal reafon, warranted
by authority of law. Upon which account a cuftom may be
good, though the particular reafon of it cannot be afligned ;
for it fufficeth, if no good legal reafon can be afligned againft
it. Thus a cuftom in a parifli that no man mall put his
beafts into the common till the third of October, would be
good ; and yet it would be hard to (hew the reafon why that
day in particular is fixed upon, rather than the day before or
after. But a cuftom, that no cattle fhall be put in till the
lord of the manor has firft put in his, is unreafonable, and
therefore bad : for peradventure the lord will never put in
his ; and then the tenants will lofe all their profits n .
5. CUSTOMS ought to be certain. A cuftom, that lands
fhall defcend to the moft worthy of the owner's blood, is
void j for how mail this worth be determined ? but a cuftom
to defcend to the next male of the blood, exclufive of females,
is certain, and therefore good . A cuftom to pay two pence
an acre in lieu of tithes is good ; but to pay fometimes two
pence and fometimes three pence, as the occupier of the land
pleafes, is bad for its uncertainty. Yet a cuftom, to pay a
year's improved value for a fine on a copyhold eftate is good ;
though the value is a thing uncertain : for the value may at
any time be afcertained -, and the maxim of law is id certum
eft, quod certum reddi potejl (12).
k Co. Litt. 114. B Co. Copyti. 33.
Litt. zia. i Roll. Abn 565.
m 1 Inft. (n.
( 12) A cuftom, that poor houfekeepers fhall carry away rotten
wood in a chafe is bad, being too vague and uncertain. 2 T. R. 758.
6. CUSTOMS,
78 Of the LAWS INT ROD.
6. CUSTOMS, though eftabliftied by confent, muft be
(when eftabliftied) compulfory , and not left to the option of
every man, whether he will ufe them or 'no. Therefore a
cuftom, that all the inhabitants fhall be rated toward the
maintenance of a bridge, will be good ; but a cuftom that
every man is to contribute thereto at his own pleafure, is
idle and abfurd, and indeed no cuftom at all.
7. LASTLY, cuftoms muft be conftflent with each other ;
one cuftom cannot be fet up in oppofition to another. For if
both are really cuftoms, then both are of equal antiquity,
and both eftablifhed by mutual confent : which to fay of
contradictory cuftoms is abfurd. Therefore, if one man
prefcribes that by cuftom he has a right to have windows
looking into another's garden ; the other cannot claim a
right by cuftom to ftop up or obftrucT: thofe windows : for
thefe two contradictory cuftoms cannot both be good, nor
both ftand together. He ought rather to deny the exiftence
of the former cuftom p .
NEXT, as to the allowance of fpecial cuftoms. Cuftoms, in
derogation of the common law, muft be conftrued ftric~lly (13).
Thus, by the cuftom of gavelkind, an infant of fifteen years
may by one fpecies of conveyance (called a deed of feoffment)
convey away his lands in fee fimple, or for ever. Yet this
cuftom does not impower him to ufe any other conveyance,
or even to leafe them for feven years : for the cuftom muft be
ftriclly purfued q . And, moreover, all fpecial cuftoms muft
P 9 Rep. 58. i Co. Cop. 33.
(13) This rule is founded upon the confideration, that a variety
of cuftoms in different places upon the fame fubjeft is a general
inconvenience ; the courts therefore will not admit fuch cuftoms
but upon the cleared proof. So where there is a cuftom that
lands (hall defcend to the eldeft fifter, the courts will not extend
this cuftom to the eldeft niece, or to any other eldeft female relation,
but upon the fame authority by which the cuftom between fitters
is fupported. I T. R* 466.
fubmit
3. gf ENGLAND. 79
fubmit to the king's prerogative. Therefore, if the king
purchafes lands of the nature of gavelkind, where all the fons
inherit equally ; yet, upon the king's demife, his eldeft fon
{hall fucceed to thofe lands alone 1 ". And thus much for the
fecond part of the leges nonfcriptae, or thofe particular cuf-
toms which affet particular perfons or diftrits only.
III. THE third branch of them are thofe peculiar laws
which by cuftom are adopted and ufed only in certain pecu-
liar courts and jurifdidions. And by thefe I underftand the
civil and canon laws.
IT may feem a little improper at firft view to rank thefe laws
under the head of leges nonfcriptae, or unwritten laws, feeing
they are fet forth by authority in their pandects, their codes,
and their inftitutions j their councils, decrees, and decretals ;
and enforced by an immenfe number of expofitions, decifions,
and treatifes of the learned in both branches of the law. But
I do this, after the example of fir Matthew Hale % becaufe
it is moft plain, that it is not on account of their being writ-
ten laws, that either the canon law, or the civil law, have
any obligation within this kingdom : neither do their force
and efficacy depend upon their own intrinfic authority ; which
is the cafe of our written laws, or afts of parliament. They
bind not the fubjefts of England, becaufe their materials were
colletled from popes or emperors, were digefted by Juftinian,
or declared to be authentic by Gregory. Thefe confiderations
give them no authority here : for the legiflature of England
doth not, nor ever did, recognize any foreign power as fu-
perior or equal to it in this kingdom j or as having the right
to give law to any, the meaneft of its fubje&s. But all the
ftrength that either the papal or imperial laws have obtained [ 80 ]
in this realm (or indeed in any other kingdom in Europe) is
only becaufe they have been admitted and received by imme-
morial ufage and cuftom in fome particular cafes, and fome
particular courts j and then they form a branch of the leges
nonfcriptae y or cuftomary laws ; or elfe, becaufe they are in
fome other cafes introduced by confent of parliament, and
Co. Litt. ij. Hift. C. L. c. a.
then
8o Of the LAWS INTROD.
then they owe their validity to the leges fcriptae, or ftatute
law. This is exprefsly declared in thofe remarkable words of
the ftatute 25 Hen. VIII. c. 21. addreffed to the king's royal
majefty. " This your grace's realm, recognizing no fu-
" perior under God but only your grace, hath been and is
" free from fubjeftion to any man's laws, but only to fuch
" as hare been devifed, made, and ordained within this realm
" for the wealth of the fame ; or to fuch other as, by fuffer-
" ance of your grace and your progenitors, the people of
" this your realm have taken at their free liberty, by their
" own confent, to be ufed among them ; and have bound
" theml'elves by long ufe and cuftom to the obfervance of
" the fame ; not as to the obfervance of the laws of any
" foreign prince, potentate, or prelate ; but as to the
" cujlomed and antient laws of this realm, originally efta-
" blifhed as laws of the fame, by the faid fufferance, con-
" fents, and cuftom ; and none otherwife."
BY the civil law, abfolutely taken, is generally underftood
the civil or municipal law of the Roman empire, as com-
prized in the inftitutes, the code, and the digeft of the Em-
peror Juftinian, and the novel conftitutionsof himfelf and fome
of his fucceflbrs. Of which, as there will frequently be oc-
cafion to cite them, by way of illuftrating our own laws, it
may not be amifs to give a fhort and general account.
THE Roman law (founded firft upon the regal conftitu-
tions of their antient kings, next upon the twelve tables of
the decemviri, then Upon the laws or ftatutes enacted by the
fenate or people, the edicts of the praetor, and the refponfapru-
dentum, or opinions of learned lawyers, and laftly upon the
[ 8 1 ] imperial decrees, or conftitutions of fucceffive emperors) had
grown to fo great a bulk, or, as Livy exprefles it*, " tarn itn-
" menfus aliarum fuper alias acervatarum legtim cumulus" that
they were computed to be many camels' load by an author
who preceded Juftinian u . This was in part remedied by the
* /. 3- f34' U Taylor's elements of civil law, 17.
collections
3- of ENGLAND. 81
collections of three private lawyers, Gregorius, Hermogenes,
and Papirius ; and then by the emperor Theodofius the
younger, by whofe orders a code was compiled, A. D. 438,
being a methodical collection of all the imperial confutations
then in force : which Theodofian code was the only book of
civil law received as authentic in the weftern part of Europe,
till many centuries after ; and to this it is probable that the
Franks and Goths might frequently pay fome regard, in
framing legal conftitutions for their newly erected kingdoms.
For Juftinian commanded only in the eaftern remains of the
empire ; and it was under his aufpices, that the prefent body
of civil law was compiled and finifhed by Tribonian and other
lawyers, about the year 533.
THIS confifts of, i. The inftitutes, which contain the
elements or firft principles of the Roman law, in four books.
2. The digefts, or pandects, in fifty books, containing the
opinions and writings of eminent lawyers, digefted in a fyf-
tematical method. 3. A new code, or collection of imperial
conftitutions, in twelve books ; the lapfe of a whole century
having rendered the former code, of Theodafius, imperfect.
4. The novels, or new conftitutions, pofterior in time to the
other books, and amounting to a fupplement to the code ; con-
taining new decrees of fucceflive emperors, as newqueftions
happened to arife. Thefe form the body of Roman law, or
corpus juris civilisy as publifhed about the time of Juftinian ;
which however fell foon into neglect and oblivion, till about
the year 1 1 30, when a copy of the digefts was found at Amalfi
in Italy : which accident, concurring with the policy of the
Roman ecclefiaftics w , fuddenly gave new vogue and autho-
rity to the civil law, introduced it into feveral nations, and
occafioned that mighty inundation of voluminous comments, [ 82 ]
with which this fyftem of law, more than any other, is now
loaded (14).
w See I. page 1 8.
( 14) See a full, lucid, and elegant account of the civil law in
Giannone's Hiftory of Naples, in lib. 3. c. 3. which he thus
concludes :
VOL. I. H " E vedi
82 Of the LAWS INTROD.
THE canon law Is a body of Roman ecclefiaflical law, re-
lative to fuch matters as that church either has or pretends to
have, the proper jurifdi&ion over. This is compiled from the
opinions of the antient Latin fathers, the decrees of general
councils, and the decretal epiftles and bulls of the holy fee.
All which lay in the fame diforder and confufion as the Ro-
man civil law : till about the year 1151, one Gratian, an
Italian monk, animated by the difcovery of Juftinian's pan-
dects, reduced the ecclefiaflical conftitutions alfo into fome
method, in three books ; which he entitled concordia difcor-
dantium canonum, but which are generally known by the name
of dccretum Gratiani. Thefe reached as low as the time of
pope Alexander III. The fubfequent papal decrees, to the
pontificate of Gregory IX., were published in much the fame
method, under the aufpices of that pope, about the year 1230,
in five books ; entitled decretalia Gregorii noni. A fixth book
was added by Boniface VIII. about the year 1298, which is
called fextus decretalium. The Clementine conftitutions, or
decrees of Clement V., were in like manner authenticated in
13 1 7 by his fucceflbr John XXII. ; who alfo publifhed twenty
conftitutions of his own, called the extravagantes Joannis : all
which in fome meafure anfwer to the novels of the civil law.
To thefe have been fmce added fome decrees of later popes,
in five books, called extravagantes communes. And all thefe
together, Gratian's decree, Gregory's decretals, the fixth de-
cretal, the Clementine conftitutions, and the extravagants of
" E vedi in tanto le ftrane vicende delle mondane cofe :
" quefta grand* opera di Giufliniano con tanta cura, e ftudio
" compilata, che per tutti i fecoli avrebbe dovuto correre gloriofa,
" e immortale, appena mancato il fuo Autore, che refto anch'ella
" per lo fpazio di cinque fecoli fepolta in tenebre denfiffime, ed in
" una profonda oblivione ; riforta poi in Occidente a tempi di
" Lottario, fu cosl avventurofa, che alzo i vanni e la fama fopra
" tutte 1'altre Provincie del Mondo, ne trovo Nazione alcuna
" culta, o barbara che fofle, che in fomma ftima, e venerazione
u non 1'avefle, e che non la preferiffc alle medefime loro proprie
' e coftumi."
John
3' of ENGLAND. 82
John and his fuccefibrs, form the corpus juris canonici, or
body of the Roman canon law.
BESIDES thefe pontifical collections, which during the
times of popery were received as authentic in this ifland as
well as in other parts of Chriftendom, there is alfo a kind of
national canon law, compofed of legatine and provincial con-
ftitutions, and adapted only to the exigencies of this church
and kingdom. The legatine conftitutions were ecclefiaftical [ 83 ]
laws, enacted in national fynods, held under the cardinals t
Otho and Othobon, legates from pope Gregory IX. and pope
Clement IV. in the reign of king Henry III. about the years
1 220 and 1268. The provincial conftitutions are principally
the decrees of provincial fynods, held under divers arch-
bimops of Canterbury, from Stephen Langton in the reign
of Henry III. to Henry Chichele in the reign of Henry V. ;
and adopted alfo by the province of York x in the reign
of Henry VI. At the dawn of the reformation, in the reign
of king Henry VIII. it was enacted in parliament y that a re-
view mould be had of the canon law ; and, till fuch review
(hould be made, all canons, conftitutions, ordinances, and
fynodals provincial, being then already made, and not re-
pugnant to the law of the land or the king's prerogative,
fliould ftill be ufed and executed. And as no fuch review
has yet been perfected, upon this ftatute now depends the
authority of the canon law in England.
As for the canons enacted by the clergy under James I.
in the year 1603, and never confirmed in parliament, it has
been folemnly adjudged, upon the principles of law and the
conftitution, that where* they are not merely declaratory of
the antient canon law, but are introductory of new regula-
tions, they do not bind the laity z whatever regard the
clergy may think proper to pay them (15).
,* Burn's eccl. law, pref.viii. and confirmed by I Eliz. c. I.
y Statute 25 Hen. VIII. 0.19.; revived z Stra. 1057.
(15) Lord Hardwicke cites the opinion of Lord Holt, and de-
clares it is not denied by any one, that it is very plain all the clergy
H 2 are
83 Of the LAWS INTROD.
THERE are four fpecies of courts, in which the civil and
canon laws are permitted (under different reftridtions) to be
ufed. i. The courts of the archbifhops and bifhops, and
their derivative officers, ufually called, in our law, courts
chriftian, curiae chrijlianitatisy or the ecclefiaftical courts.
2. The military courts. 3. The courts of admiralty.
4. The courts of the two univerfities. In all, their recep-
tion in general, and the different degrees of that reception,
are grounded entirely upon cuftom j corroborated in the lat-
84 ] ter inftance by act of parliament, ratifying thofe charters
which confirm the cuftomary law of the univerfities. The
more minute confideration of thefe will fall properly under
that part of thefe commentaries which treats of the jurifdic-
tion of courts. It will fuffice at prefent to remark a few par-
ticulars relative to them all, which may ferve to inculcate
more ftrongly the do&rine laid down concerning them a .
I. AND, firft, the courts of common law have the fuper-
intendency over thefe courts ; to keep them within their
jurifdi&ions, to determine wherein they exceed them, to
reftrain and prohibit fuch excefs, and (in cafe of contumacy)
to punim the officer who executes, and in fome cafe the judge
who enforces, the fentence fo declared to be illegal.
2. THE common law has referved to itfelf the expofition
of all fuch acts of parliament as concern either the extent
of thefe courts, or the matters depending before them. And,
* Hale I lift. c. a.
are bound by the canons confirmed by the king only, but they
muft be confirmed by the parliament to bind the laity. ( 2 All. 605. )
Hence it has been decided, that if the Archbifhop of Canterbury
grants a difptnfation to hold two livings diflant from each other
more than thirty miles, no advantage can be taken of it by lapfe
or otherwife in the temporal courts, for the reftridlion to thirty
miles was introduced by a canon made fince the 25 Henry VIII.
2 BL Rep. 968.
therefore,
3 of ENGLAND* 84
therefore, if thefe courts either refufe to allow thefe afts of
parliament, or will expound them in any other fenfe than
what the common law puts upon them, the king's courts at
Weftminfter will grant prohibitions to reftrain and controul
them.
3. AN appeal lies from all thefe courts to the king, in the
laft refort : which proves that the jurifdi&ion exercifed in
them is derived from the crown of England, and not from
any foreign potentate, or intrinfic authority of their own.
And, from thefe three ftrorig marks and enfigns of fuperio-
rity, it appears beyond a doubt, that the civil and canon laws,
though admitted in fome cafes by cuftom in fome courts, are
only fubordinate, and leges fub graviori lege : and that, thus
admitted, reftrained, altered, new-modelled, and amended,
they are by no means with us a diftint independent fpecies
of laws, but are inferior branches of the cuflomary or un-
written laws of England, properly called the king's eccle-
fiaftical, the king's military, the king's maritime, or the king's
academical laws.
LET us next proceed to the leges fcriptae, the written laws [ 85 ]
'of the kingdom ; which are ftatutes, ats, or edicts, made by
the king's majefty, by and with the advice and confent of
the lords fpiritual and temporal, and commons, in parliament
aflembled b . The oldeft of thefe now extant, and printed in
our ftatute books, is the famous magna charta, as confirmed
in parliament 9 Hen. III. : though doubtlefs there were many
ats before that time, the records of which are now loft, and
the determinations of them perhaps at prefent currently re-
ceived for the maxims ^f the old common law.
THE manner of making thefe ftatutes will be better con-
fidered hereafter, when we examine the conftitution of par-
liaments. At prefent we will only take notice of the different
h 8 Rep. 2c.
H 3 kinds
85 Of the LAWS INTROD.
kinds of ftatutes ; and of forne general rules with regard to
their conftructions c .
FIRST, as to their feveral kinds. Statutes are either gene-
ral orfpecia/, public or private. A general or public at is an
univerfal rule, that regards the whole community ; and of
[ 86 ] this tne courts of law are bound to take notice judicially and
ex officio ; without the flatute being particularly pleaded, or
formally fet forth by the party who claims an advantage under
it. Special or private ats are rather exceptions than rules,
being thofe which only operate upon particular perfons, and
private concerns : fuch as the Romans entitled fenatus decreta^
in contradiftin&ion to the fenat&s confulta, which regarded
the 1 whole community d : and of thefe (which are not pro-
mulgated with the fame notoriety as the former) the judges
are not bound to take notice, unlefs they be formally fhewn
and pleaded. Thus, to {hew the diftin&ion, the ftatute
13 Eliz. c. 10. to prevent fpiritual perfons from making leafes
for longer terms than twenty-one years, or three lives, is
c The method of citing thefe acls of fume of our old ftatutes by their initial
parliament is various. Many of our an- words, as the ftatutes of yuia emftorej,
tient ftatutes are called after the name of nnd that of circumfpcfie agatis. But
the place were the parliament was held the mod ufual method of citing them,
that made them; as the ftatutes of Mer- efpecially fince the time of Edward the
ton and Marleberge, of Weftminfter, fecond, is by naming the year of the
Gloucefter, and Winchefter. Others king's reign in which the ftatute was
are denominated entirely from their fub- made, together with the chapter or
jedt; as the ftatutes of Wales and Ire- particular aft, according to its numeral
land, the articuli cleri, and the praeroga- order, as, 9 Geo. II. c. 4. For all the
tiva rcg'u. Some are diftinguiftied by acls of one feffion of parliament taken
their initial words, a method of citing together make properly but one ftatute ;
veryantient; being ufed by th Jews in and therefore when two fedions have
denominating the books of the peitta- been held in one year, we ufually men-
teuch ; by the chriftian church in diftin- lion ftat. I. or a. Thus the bill of
guiftiing their hymns and divine offices; rights is cited, as i W. & M. ft. a. c. 2.
by the Romanifts in defcribing their pa- fignifying that it is the fecond chapter
pal bulls; and in Ihort by the whole or act, of the fecond ftatute, or the laws
body of antient civilians and canonills, made in the fecond feflion of parliament
among whom this method of citation ge- in the firft year of king William and
nerally prevailed, not only with regard queen Mary,
to chapters, but inferior fections allb; in * Gravin, Orig. i.. 24.
imitation of all which, we Hill call
a public
3 of ENGLAND. 86
a public ad : it being a rule prefcribed to the whole body of
fpiritual perfons in the nation : but an aft to enable the
bifliop of Chefter to make a leafe to A. B. for fixty years, is
an exception to this rule ; it concerns only the parties and
the bifhop's fucceflbrs ; and is therefore a private aft.
STATUTES alfo are either declaratory of the common law,
or remedial of fome defect s therein ( 1 6). Declaratory, where
the old cuftora of the kingdom is almoft fallen into difufe, or
become difputable ; in which cafe the parliament has thought
proper, in perpetwim rei teJUmonium, and for avoiding all
doubts and difficulties, to declare what the common law is
and ever hath been. Thus the ftatute of treafons, 25 Edw.
III. cap. 2. doth not make any new fpecies of treafons j but
only, for the benefit of the fubjeft, declares and enumerates
thofe feveral kinds of offence which before were treafon at
the common law. Remedial ftatutes are thofe which are
made to fupply fuch defefts, and abridge fuch fuperfluities,
in the common law, as arife either from the general imperfec-
tion of all human laws, from change of time and circum-
ftances, from the miftakes and unadvifed determinations of
unlearned (or even learned) judges, or from any other caufe
whatfoever. And this being done, either by enlarging the
common law where it was too narrow and circumfcribed, or
by reftraining it where it was too lax and luxuriant, hath oc-
cafioned another fubordinate divifion of remedial afts of par-
liament into enlarging and retraining ftatutes. To inftance
again in the cafe of treafon. Clipping the current coin of
the kingdom was an offence not fufficiently guarded againft
by the common law : therefore it was thought expedient
by ftatute 5 Eliz. c. 1 1 . to make it high treafon, which it was
not at the common law ; fo that this was an enlarging fta-
( 1 6) This divifion is generally exprefledby declaratory ftatutes,
and ftatutes introdu&ory of a new law. Remedial ftatutes are
generally mentioned in contradifthaion to penal ftatutes. See
note 19. p. 88.
H 4 tute.
87 Of the LAWS INTROD.
tute (17). At common law alfo fpiritual corporations might
leafe out their eftates for any term of years, till prevented
by the ftatute 13 Eliz. before mentioned : this was therefore
a re/training ftatute.
SECONDLY, the rules to be obferved with regard to the
conftru&ion of ftatutes are principally thefe which follow :
I. THERE are three points to be confidered in the con-
ftruftion of all remedial ftatutes ; the old law ; the mifchief,
and the remedy : that is, how the common law flood at the
making of the ae~l ; what the mifchief was, for which the
common law did not provide ; and what remedy the parlia-
ment have provided to cure this mifchief. And it is the bufi-
nefs of the judges fo to conftrue the ad, as to fupprefs the
mifchief and advance the remedy e . Let us inftance again in
the fame reftraining ftatute of 13 Eliz. c. 10. By the com-
mon law, ecclefiaftical corporations might let as long leafes
as they thought proper : the mifchief was, that they let long
and unreafonable leafes, to the impoverifhment of their fuc-
'ceflbrs : the remedy applied by the ftatute was by making
void all leafes by ecclefiaftical bodies for longer terms than
three lives or twenty-one years. Now in the conftrutlion of
8 Rep. 7. Co. Litt. 11.42.
(17) This ftatute againft clipping the coin hardly correfponds
with the general notion either of a remedial or an enlarging ftatute.
In ordinary legal language, remedial ftatutes are contradiftinguimed
to penal ftatutes. An. enlarging or an enabling ftatute is one
which increafes, not reftrains, the power of aftion ; as the 32 Hen.
VIII. c. 28. which gave bifhops and all other fole ecclefiaftical
corporations, except parfons and vicars, a power of making leafes,
which they did not poflefs before, is always called an enabling
ftatute. The 13 Eliz. c. 10. which afterwards limited the power
of fpiritual perfons to make leafes, 'is on the contrary ftyled a
reftraining or difabling ftatute. See this fully explained by the
learned Commentator, 2 Vol. p. 319.
this
3* tf ENGLAND. 87
this flatute it is held, that leafes, though for a longer time,
if made by a bifhop, are not void during the bifhop's con-
tinuance in his fee ; or, if made by a dean and chapter, they
are not void during the continuance of the dean ; for the
a& was made for the benefit and protection of the fucceffor f .
The mifchief is therefore fufficiently fupprefled by vacating
them after the determination of the intereft of the grantors ;
but the leafes, during their continuance, being not within the [ 88
mifchief, are not within the remedy.
2. A STATUTE, which treats of things or perfons of an
inferior rank, cannot, by any general -words be extended to
thofe of a fuperior. So a ftatute, treating of <f cleans, pre-
" bendaries, parfons, vicars, and others having fpiritual pro-
" motion" is held not to extend to bifhops, though they
have fpiritual promotion ; deans being the higheft perfons
named (18), and bifhops being of a ftill higher order 6 .
3. PENAL ftatutes muft be conftrued ftridlly. Thus the
ftatute i Edw. VI. c. 12. having enacted that thofe who are
convi&ed of dealing horfes mould not have the benefit of
clergy, the judges conceived that this did not extend to him
that fliould Heal but one horfe (19), and therefore procured
f Co.Litt. 45. 3 Rep. 6c. 10 Rep. 58. e * Rep. 46.
( 1 8 ) This, conftru&ion muft be prefumed to be moft conformable
to the intention of the legiflature.
(19) Lord Hale thinks, that the fcruple of the judges did not
merely depend upon the words being in the plural number, becaufe
no doubt had ever occurred refpefting former ftatutea in the
plural number ; as, for inftance, it was ena&ed by the 32 Hen.
VIII. c. i. that no perfon convicted of burning any dwelling-houfes
fhould be admitted to clergy. But the reafon of the difficulty in
this cafe was, becaufe the ftatute of 37 Hen. VIII. c. 8. was
exprefsly penned in the fingular number ; If any man do Jleal any
horfe, mare, orjUly; and then this ftatute thus varying the number,
and at the fame time exprefsly repealing all other exclufionsof clergy
introduced fince the beginning of the reign of Hen. VIII., it raifed
a doubt whether it were not intended by the legiflature to reftore
clergy
88 Of the LAWS INTROU.
a new aft for that purpofe in the following year h . And, to
come nearer our own times, by the flatute 14 Geo. II. c. 6.
dealing fheep, or other cattle^ was made felony without benefit
of clergy. But thefe general words, " or other cattle," being
looked upon as much too loofe to create a capital offence,
the aft was held to extend to nothing but mere flieep. And
therefore, in the next feflions, it was found neceffary to make
another ftatute, 15 Geo. II. c. 34. extending the former to
bulls, cows, oxen, fleers, bullocks, heifers, calves, and lambs,
by name.
4. STATUTES againft frauds (20) are to be liberally and be-
neficially expounded. This may feem a contradiction to the
h 2 & 3 Ed. VI. c. 33. Bac. Elem. c. iz.
clergy where only one horfe was ftolen, 2 H. P. C. 365. And it
has lince been decided that where ftatutes ufe the plural number,
a fingle inftance in fuch cafes will be comprehended ; as the ftatute
2 Geo. II. c. 25. f. 3. enads that it fhall be felony to fteal any
bank notes t and it has been adjudged to be felony to fteal one bank
note. Leach I. HaJJel's Cafe.
(20) Thefe are generally called remedial ftatutes. And it is
a fundamental rule of conftru&ion, that penal ftatutes fhall be
conftrued ftriftly, and remedial ftatutes fhall be conftrued libe-
rally. It was one of the laws of the twelve tables of Rome, that
whenever there was a queftion between liberty and flavery, the
prefumption mould be on the fide of liberty. This excellent
principle our law has adopted in the conftru&ion of penal ftatutes :,
for whenever any ambiguity arifes in a ftatute introducing a new
penalty or punifhment, the decilion fhall be on the fide of lenity
and mercy ; or in favour of natural right and liberty : or, in other
words, the decifion fhall be according to the ftrift letter in favour
of the fubjet. And though the judges in fuch cafes may fre-
quently raife and folve difficulties contrary to the intention of the
legiflature, yet no further inconvenience can refult, than that the
law remains as it was before the ftatute. And it is more confo-
nant to principles of liberty, that the judge mould acquit whom
the legiflature intended to punifh, than that he fhould punifh whom
the legiflature intended to difcharge with impunity. But remedial
1 1 ftatutes
3- of ENGLAND. 88
laft rule ; mod ftatutes againft frauds being in their confe-
quences penal. But this difference is here to be taken :
where the flatute a&s upon the offender, and infli&s a pe-
nalty, as the pillory or a fine, it is then to be taken ftriUy :
but when the ftatutes a& upon the offence, by fetting afide
the fraudulent tranfaftion (21), here it is to be conftrued
liberally. Upon this footing the ftatute of 13 Eliz. c. 5.
which avoids all gifts of goods, &c. made to defraud cre-
ditors find others, was held to extend by the general words [ 89 ]
to a gift made to defraud the queen of a forfeiture >.
5. ONE part of the ftatute muft be fo conftrued by another,
that the whole may (if poffible) ftand : ut res magis valeaty
quam pereat. As if land be vefted in the king and his heirs
by adl of parliament, faving the right of A ; and A has at
that time a leafe of it for three years : here A mall hold it
for his term of three years, and afterwards it {hall go to the
1 3 Rep. 8*.
ftatutes muft be conftrued according to the fpirit : for, in giving
relief againft fraud, or in the furtherance and extenfion of natural
right and juftice, the judge may fafely go even beyond that which
exifted in the minds of thofe who framed the law.
(21) And therefore it has been held, that the fame words in a
ftatute will bear different interpretations, according to the nature
of the fuit or profecution inftituted upon them. As by the 9 Ann.
c. 14. the ftatute againft gaming ; if any perfon {hall lofe at any
time or fitting xol. and mall pay it to the winner, he may recover
it back within three months ; and if the lofer does not within that
time, any other perfon may fue for it, and treble the value befides.
So where an action was brought to recover back fourteen guineas,
which had been won and paid after a continuance at play, except
an interruption during dinner, the court held the ftatute was
remedial, as far as it prevented the effe&s of gaming, without
infli&ing a penalty, and therefore, in this a&ion, they confidered it
one time or fitting ; but they faid, if an a&ion had been brought by
a common informer for the penalty, they would have conftrued it
ftridly in favour of the defendant, and would have held, that the
money had been loft at two fittings. ^ Bl. Rep. 1226.
king.
89 Of the LAWS INTROD.
king. For this interpretation furnifhes matter for every
claufe of the ftatute to work and operate upon. But,
6. A SAVING, totally repugnant to the body of the ac"t, is
void. If therefore an at of parliament vefts land in the
king and his heirs, faving the right of all perfons whatfoever ;
or vefts the land of A in the king, faving the right of A : in
either of thefe cafes the faving is totally repugnant to the
body of the ftatute, and (if good) would render the ftatute
of no effecT: or operation ; and therefore the faving is void,
and the land vefts abfolutely in the king k .
*
7. WHERE the common law and a ftatute differ, the com-
mon law gives place to the ftatute ; and an old ftatute
x gives place to a new one. And this upon a general prin-
ciple of univerfal law, that " leges pojleriores priores contra-
" rias abrogant .'' confonant to which, it was laid down by a
law of the twelve tables at Rome, that <l quod populus pojire-
ft mum jit/fit, id jus ratum efto" But this is to be under-
ftood only when the latter ftatute is couched in negative
terms, or where it's matter is fo clearly repugnant, that it
neceflarily implies a negative. As, if a former adl fays, that
a juror upon fuch a trial fhall have twenty pounds a-year ;
and a new ftatute afterwards enacts, that he fhall have twenty
marks : here the latter ftatute, though it does not exprefs, yet
neceffarily implies a negative, and virtually repeals the former.
For if twenty marks be made a qualification fufficient, the
former ftatute which requires twenty pounds is at an end *.
C 9 ] But if both ats be merely affirmative, and the fubftance
fuch that both may ftand together,, here the latter does
not repeal the former, but they fliall both have a con-
current efficacy. If by a former law an offence be indift-
able at the quarter-feffions, and the latter law makes the fame
offence indictable at the affizes : here the jurifdiction of
the feflions is not taken away, but both have a concurrent
jurifdiction, and the offender may be profecuted at either :
k I Rep. 47. ' Jenk. Cent. %. 73.
nttlefs
3- of ENGLAND. 90
unlefs the new ftatute fubjoins exprefs negative words,
as, that the offence fhall be indictable at the aflizes, and not
elfe-where m .
8. IF a ftatute, that repeals another, is itfelf repealed af-
terwards, the firft ftatute is hereby revived, without any
formal words for that purpofe. So, when the ftatutes of 26
and 35 Henry VIII., declaring the king to be the fupreme head
of the church, were repealed by a ftatute i and 2 Philip and
Mary, and this latter ftatete was afterwards repealed by an
al of j Eliz., there needed not any exprefs words of revival
in queen Elizabeth's ftatute, but thefe acts of king Henry
were impliedly and virtually revived n .
9. ACTS of parliament derogatory from the power of fub-
fequent parliaments bind not. So the ftatute 1 1. Hen. VII.
c. i. which directs that no perfon, for aflifting a king de
foffo, fhall be attainted of treafon by at of parliament or
otherwife, is held to be good only as to common profecutions
for high treafon ; but will not reftrairi or clog any parlia-
mentary attainder. Becaufe the legiflature, being in truth
the fovereign power, is always of equal, always of abfolute,
authority : it acknowledges no fuperior upon earth, which
the prior legiflature muft have been, if its ordinances eould
bind a fubfequent parliament. And upon the fame principle
Cicero, in his letters to Atticus, treats with a proper con-
tempt thefe reftraining claufes, which endeavoured to tie up
thp hands of fucceeding legiflatures. " When you repeal the
" law itfelf," fays he, " you at the fame time repeal the pro- [ 91
<{ hibitory claufe, which guards againft fuch repeal p ."
10. LASTLY, acts of parliament that are impoffible to be
performed are of no validity ; and if there arife out of them
collaterally any abfurd confequences, manifeftly contradictory
to common reafon, they are, with regard to thofe collateral
' n 1 1 Rep. 63 . P Cum lex al'rcgatur, illud iffum
"4 Inft. 325. abrogatur, quo non earn abrogari ofor-
Hid. 43. teat, I. 3. cf. 23.
confequences^
gi Of the LAWS INTROD.
confequences, void (22). I lay down the rule with thefe
reftriftions ; though I know it is generally laid down more
largely, that a&s of parliament contrary to reafon are void.
But if the parliament will pofitively enal a thing to be done
which is unreafonable, I know of no power in the ordinary
forms of the conftitution, that is vefted with authority to
control it : and the examples ufually alleged in fupport of
this fenfe of the rule do none of them prove, that where the
main objeft of a ftatute is unreafonable, the judges are at
liberty to rejet it ; for that were to fet the judicial power
above that of the legiflature, which would be fubverfive of all
government. But where fome collateral matter arifes out of
the general words, and happens to be unreafonable ; there
the judges are in decency to conclude that this confequence
was not forefeen by the parliament , and therefore they are
at liberty to expound the ftatute by equity, and only quoad
hoc difregard it. Thus, if an at of parliament gives a man
power to try all caufes that arife within his manor of Dale ;
yet if a caufe mould arife in which he himfelf is party, the
acl: is conftrued not to extend to that, becaufe it is unreafon-
able that any man mould determine his own quarrel* 1 . But,
if we could conceive it poffible for the parliament to enat,
that he fliould try as well his own caufes as thofe of other
perfons, there is no court that has power to defeat the intent
of the legiflature, when couched in fuch evident and exprefs
words as leave no doubt whether it was the intent of the
legiflature or no.
8 Rep. 118.
(22) If an adt of parliament is clearly and unequivocally ex-
prefled, with all deference to the learned Commentator, I conceive
it is neither void in it's dire6t nor collateral confequences, however
abfurd and unreafonable they may appear. If the expreflion will
admit of doubt, it will not then be prefumed that that conftruction
can be agreeable to the intention of the legiflature, the confe-
quences of which are unreafonable ; but where the fignification of
a ftatute is manifeft, no authority lefs than that of parliament can
reftrain it's operation.
THESE
,3 of ENGLAND. 91
THESE are the feveral grounds of the laws of England :
over and above which, equity is alfo frequently called in to
afiift, to moderate, and to explain them. What equity is, [ 92 ]
and how impoflible in it's very eflence to be reduced to ftated
rules, hath been fhewn in the preceding fedHon. I {hall
therefore only add, that (befides the liberality of fentiment
with which our common law judges interpret acts of parlia-
ment, and fuch rules of the unwritten law as are not of a
pofitive kind) there are alfo peculiar courts of equity efta-
blimed for the benefit of the fubjedt ; to detect latent frauds
and concealments, which the procefs of the courts of law is
not adapted to reach ; to enforce the execution of fuch matters
of truft and confidence as are binding in confcience, though
not cognizable in a court of law ; to deliver from fuch dan-
gers as are owing to misfortune or overfight ; and to give a
more fpecific relief, and more adapted to the circum fiances of
the cafe, than can always be obtained by the generality of the
rules of the pofitive or common law. This is the bufinefs of
our courts of equity, which however are only converfant in
matters of property. For the freedom of our conftilution
will not permit, that in criminal cafes a power mould be
lodged in any judge, to conftrue the law otherwife than ac-
cording to the letter. This caution, while it admirably pro-
teds the public liberty, can never bear hard upon individuals.
A man cannot fuffer more punifhment than the law afligns,
but he may fuffer lefs. The laws cannot be reftrained by
partiality to inflict a penalty beyond what the letter will
warrant ; but, in cafes where the letter induces any apparent
hardlhip, the crown has the power to pardon.
C 93 3
SECTION THE FOURTH.
OF THE COUNTRIES SUBJECT TO THE
LAWS OF ENGLAND.
'T'HE kingdom of England, over which our municipal
laws have jurifdi&ion, includes not, by the common
law, either Wales, Scotland, or Ireland, or any other part of
the king's dominions, except the territory of England only.
And yet the civil laws and local cuftoms of this territory do
how obtain, in part or in all, with more or lefs reftri&ions,
in thefe and many other adjacent countries : of which it will
be proper firft to take a review, before we confidcr the king-
dom of England itfelf, the original and proper fubjeft of
thefe laws.
WALES had continued independent of England, uncon-
quered and uncultivated, in the primitive paftoral flate which
Caefar and Tacitus afcribe to Britain in general, for many
centuries : even from the time of the hoftile invafions of the
Saxons, when the antient and chriftian inhabitants of the
ifland retired to thofe natural intrenchments, for protec-
tion from their pagan vifitants. But when thefe invaders
themfelves were converted to chriftianity, and fettled into
regular and potent governments, this retreat of the antient
Britons grew every day narrower ; they were over-run by
little and little, gradually driven from one faftnefs to another,
and by repeated lofles abridged of their wild independence.
Very early in our hiftory we find their princes doing homage
to the crown of England ; till at length in the reign of
Edward the firft, who may juftly be ftyled the conqueror of
9 Wales,
4 OftkeCowNTKiEsfubjefl, &c. 94
Wales, the line of their antient princes was abolifhed, and the
king of England's eldefl fon became, as a matter of courfe ( i ),
their titular prince; the territory of Wales being then en-
tirely re-annexed (by a kind of feodal refumption) to the do-
minion of the crown of England a ; or, as the ftatute (2) of
Rhudlan b exprefies it, '* terra Walliae cum incolis fuis t prius
*' regi jure feodali fubjeEla t (of which homage was the fign,)
" jam in proprietatit dominium totaliter et cum integritate con-
" verfa ejl t et coronae regni Angliae tanquam pars corporis ejuf-
" dem annexa et unita," By the ftatute alfo of Wales c very
material alterations were made in divers parts of their laws,
fo as to reduce them nearer to the Englifh ftandard, efpecially
in the forms of their judicial proceedings : but they ftill
retained very much of their original polity ; particularly their
rule of inheritance, viz. that their lands were divided equally
among all the iffue male, and did not defcend to the eldeft
fon alone. By other fubfequent ftatutes their provincial im-
munities were ftill farther abridged : but the finifhing ftroke
1 Vaugh-400. b toEdw. I. c izEdw. I.
1 I ) It cannot be faid that the king's eldeft fon became prince
of Wales by any neceffary or natural confequence : but for the
origin and creation of his title, fee p. 224.
(2 ) The learned Judge nas made a miftake in referring to the
ftatute, which is called the ftatute of Rutland, in the 10 Ed. I.
which does not at all relate to Wales. But the ftatute of Rutland,
a it is called in Vaughan (p. 430. ) is the fame as the Statutum Wallit.
Mr. Barrington, in his Obfervations on the Antient Statutes,
(p. 74.) tells us, that the Statutum Wallix bears date apud Rothela-
num, what is now called Rhuydland in Flintfhire. Though Edward
fays, that terra Wallie prius regi jure feodali fubjefta, yet Mr.
Barrington affures us, that the feudal law was then unknown in
Wales, and that " there are at prefent in North Wales, and it
*' is believed in South Wales, no copyhold tenures, and fcarcely
" an inftance of what we call manerial rights ; but the property
" is entirely free and allodial. Edward, however, was a conqueror,
" and he had a right to make ufe of his own words in the preamble
" to his law." It. 75.
VOL. I. I to
94 Of the COUNTRIES fubjefl to INTROD.
to their independency was given by the ftatute 27 Hen. VIII.
c. 26. which at the fame time gave the utmoft advancement
to their civil profperity, by admitting them to a thorough
communication of laws with the fubjefts of England. Thus
were this brave people gradually conquered into the enjoy-
ment of true liberty ; being infenfibly put upon the fame
footing, and made fellow-citizens with their conquerors. A
generous method of triumph, which the republic of Rome
praclifed with great fuccefs, till (he reduced all Italy to her
obedience, by admitting the vanquifhed ftates to partake of
the Roman privileges.
IT is enafted by this ftatute 27 Hen. VIII. i. That the
dominion of Wales mall be for ever united to the kingdom
of England. 2. That all Welftimen born {hall have the fame
liberties as other the king's fubjects. 3. That lands in Wales
(hall be inheritable according to the Englim tenures and rules
of defcent. 4. That the laws of England, and no other, (hall
C 95 ] be ufed in Wales : befides many other regulations of the police
of the principality. And the ftatute of 34 & 35 Hen. VIII.
c. 26". confirms the fame, adds further regulations, divides it
into twelve mires (3), and, in fhort, reduces it into the fame
order in which it ftands at this day ; differing from the king-
dom of England in only a few particulars, and thofe too of
the nature of privileges, (fuch as having courts within itfelf,
independent of the procefs of Weftminfter-hall), and fome
other immaterial peculiarities, hardly more than are to be
found in many counties of England itfelf.
THE kingdom of Scotland, notwithftanding the union of
the crowns on the acceflion of their king James VI. to that
of England, continued an entirely feparate and diftin& king-
(3) ^y this union of Wales with England, tvrenty-feven mem-
bers were added to the Enghfh houfe of commons. By the 27
Hen. VIII. c. 26. the county of Monmouth (which till that time
had been part of Wales) was enabled to fend two members to
parliament ; but the other counties and towns in Wales reprefented
in parliament had the privilege granted of returning one only.
dom
4 the LAWS of ENGLAND. 95
dom for above a century more, though an union had been
long projected ; which was judged' to be the more eafy to
be done, as both kingdoms were antiently under the fame go-
vernment, and ftill retained a very great refemblance, though
far from an identity in their laws. By an aft of parliament
i Jac. I. c. i. it is declared that thefe two mighty, famous,
and antient kingdoms were formerly one. And fir Edward
Coke obferves d , how marvellous a conformity there was, not
only in the religion and language of the two nations, but alfo
in their antient laws, the defcent of the crown, their parlia-
ments, their titles of nobility, their officers of ftate and of
juftice, their writs, their cuftoms, and even the language of
their laws. Upon which account he fuppofes the common
law of each to have been originally the fame ; efpecially as
their moft antient and authentic book, called regiam majefta-
tern, and containing the rules of their antient common Jaw, is
extremely fimilar to that of Glanvil, which contains the prin-
ciples of ours, as it ftood in the reign of Henry II. And the
many diverfities fubfiRing between the two laws at prefent,
may be well enough accounted for, from a diverfity of prac-
tice in two large and uncommunicating jurifdi&ions, and
from the ats of two diftindT: and independent parliaments,
which have in many points altered and abrogated the old
common law of both kingdoms (4).
* 4 Inft. 345.
(4) The laws in Scotland concerning the tenures of land, and
of confequence the conftitution of parliaments and the royal pre-
rogatives, were founded upon the fame feudal principles as the
laws refpefting the fubje&s in England. It is faid, that the feu-
dal polity was eitablifhed firft in England; and was afterwards
introduced into Scotland in imitation of the Englifh government.
But it continued in its original form much longer in Scotland
than it did in England, and the changes in the Scotch govern-
ment, probably owing to the circumftance that they are more
recent, are far more diftinftly marked and defined than they are in
the hiftory of the Englifh conftitution. And perhaps the progrefs
of the Scotch parliaments affords a clearer elucidation of the
I 2 obfcure
96 Of the COUNTRIES fubjeR to INTROD*
HOWEVER, fir Edward Coke, and the politicians of that
time, conceived great difficulties in carrying on the projected
union : but thefe were at length overcome, and the great
obfcure and ambiguous points in the hiftory of the representation
and conftitution of our country, than any arguments or authorities
that have yet been adduced. But a particular difcuflion of this
fubjeft would far exceed the limits of a note, and will be referred
for a future occafion. But for an account of the parliament of
Scotland before the Union, and of the laws relative to the election
of the reprefentative peers and commoners of Scotland, I fhall refer
the ftudious reader 'to Mr. Wight's valuable Inquiry into the Rife
and Progrefs of Parliaments chiejly in Scotland. (Quarto ed. ) It is
fuppofed, that we owe the lower houfe of parliament in England
to the accidental circumftance that the barons and the reprefenta-
tives of the counties and boroughs had not a room large enough
to contain them all ; but in Scotland, the three eftates afiembled
always in one houfe, had one common prefident, and deliberated
jointly upon all matters that came before them, whether of a
judicial or of a legiflative nature. (Wight, 82.) In England the
lords fpiritual were always ftyled one of the three eftates of the
realm ; but there is no authority that they ever voted in .a body
diftinft from the lords temporal. In the Scotch parliament the three
eftates were, I . The bifliops, abbots, and other prelates who had a
feat in parliament, as in England, on account of their benefices, or
rather lands, which they held in capite, i. e. immediately of the
crown: 2. The barons and the commifiioners of (hires, who were
the reprefentatives of the fmaller barons, or the free tenants of the
king : 3. The burgefies, or the reprefentatives of the royal
boroughs. Craig afiures us, nihil ratum ejfe, nihil legis vim habere,
nifi quod omnium trium ordinum confenfu conjunSo conftitutum ejl ; ita
tamen ut unius cujufque or dims per fe major pars confentiens pro toto
ordine fufficiat. Scio hodie controverti, an duo ordines diffentiente
tertio, quaji major pars leges condere pojjint ; cujus partcm negantem
boni omnss, et quicunque de hoc re fcripferunt perfmacijjime luentur,
alioqui duo ordines in everfionem tertii pojjint confentire. (De Feudis,
lib. I. Dieg. 7. f. li.) But fome writers have fince prefumed to
controvert this doarine. ( Wight, 83.) It is ftrange that a great
fundamental point, which was likely to occur frequently, mould
remain a fubjeft of doubt and controverfy. But we mould now
be inclined to think, that a majority of one of the eftates could
17 not
4- the LAWS of ENGLAND. 96
work was happily effected in 1707, dAnne; when twenty-
five articles of union were agreed to by the parliaments of
both nations ; the purport of the moft confiderable being as
follows :
1. THAT on the firft of May, 1707, and for ever after,
the kingdoms of England and Scotland fhall be united into
one kingdom, by the name of Great Britain.
2. THE fucceflion to the monarchy of Great Britain (hall
be the fame as was before fettled with regard to that of
England.
3. THE united kingdom (hall be reprefented by one par-
liament.
4. THERE fhall be a communication of all rights and pri-
vileges between the fubjedls of both kingdoms, except where
it is otherwife agreed.
9. WHEN England raifes 2,ooo,ooo/. ($) by a land tax*
Scotland fhall raife 48,ooo/.
1 6, 17. THE ftandards of the coin, of weights, and of
meafures, fhall be reduced to thofe of England, throughout
the united kingdoms.
not have refilled a majority of each of the other two, as it cannot
eafily be fuppofed, that a majority of the fpiritual lords would
have confentedto thofe ilatutes, which, from the year 1587 to the
year 1690, were enacted for their impoverifhment, and finally for
their annihilation. At the time of the union, the Scotch parlia-
ment confifted only of the other two eftates. With regard to laws
concerning contracts and commerce, and perhaps alfo crimes, th
law of Scotland is in a great degree conformable to the civil law ;
and this, probably, was owing to their frequent alliances and con-
nections with France and the continent, where the civil law chiefly
prevailed.
(5) Accurately, 1,997, 7637. 8j. ^\d. the fum raifed by a land-
tax of 4>r. in the pound.
13 1 8. THE
96 Of the COUNT R IE s fubjeft to INTROD.
1 8. THE laws relating to trade, cuftoms, and the excife,
fhall be the fame in Scotland as in England. But all the other
laws of Scotland fhall remain in force: though alterable
by the parliament of Great Britain. Yet with this cau-
tion : that laws relating to public policy are alterable at the
discretion of the parliament ; laws relating to private right
are not to be altered but for the evident utility of the people
of Scotland.
[ 97 3 22. SIXTEEN peers are to be chofen toreprefent the peer-
age of Scotland in parliament, and forty-five members to
fit in the houfe of commons (6).
(6) By the 25th article it is agreed, that all laws and ftatutes
in either kingdom, fo far as they are contrary to thefe articles, (hall
ceafe and become void. From the time of Edward IV. till the reign
of Ch. II. both inclufive, our kings ufed frequently to grant, by
their charter only, a right to unreprefented towns of fending mem-
bers to parliament. The laft time this prerogative was exercifed,
was in the 29 Ch. II. who gave this privilege to Newark, and it is
remarkable, that it was alfo the firft time that the legality of this
power was queftioned in the houfe of commons ; but it was then
acknowledged by a majority of 1 25 to 73. ( Comm. Jour. 2 1 March,
1676-7.) But notwithftanding it is a general rule in our law, that
the king can never be deprived of his prerogatives, but by the clear
and exprefs words of an aft of parliament ; yet it has been thought,
from this laft article in the aft of union, that this prerogative of the
crown is virtually abrogated, as the exercife of it would necefla-
rily deftroy the proportion of the reprefentatives for the two king-
doms. (See I Doug. EL Cafes, 70. The Preface to Glanv. Rep. and
Simeon's Law of Ele3. 91 . ) It was alfo agreed, that the mode of
the eleftion of the peers and commons mould be fettled by an aft
parted in the parliament of Scotland, which was afterwards recited,
ratified, and made part of the aft of union. And by that ftatute
it was enafted, that of the 45 commoners, 30 fhould be elefted
by the mires, and 15 by the boroughs ; that the city of Edinburgh
mould eleft one, and that the other royal boroughs mould be
divided into fourteen diftrifts, and that each diftrift mould return
one. It was alfo provided, that no perfon mould eleft or be lefted
4. the LAWS of ENGLAND. 97
23. THE fixteen peers of Scotland (hall have all privileges
of parliament ; and all peers of Scotland fliall be peers of
Great Britain, and rank next after thofe of the fame degree
at the time of the union, and (hall have all privileges of
peers, except fitting in the houfe of lords, and voting on the
trial of a peer (7).
one of the 45, but who would have been capable of electing, or
of being elected, a reprefentative of a fliire or a borough to the
parliament of Scotland. Hence the eldeft fon of any Scotch peer
cannot be elefted one of the 45 reprefentatives ; for by the law of
Scotland, prior to the union, the eldeft fon of a Scotch peer was
incapable of fitting in the Scotch parliament. ( Wight, 269. ) There
feems to be no fatisfaftory reafon for this reftuiftion, which would
not equally extend to the exclufion of all the other fons of a peer.
Neither can fuch eldeft fon be entitled to be enrolled and vote as a
freeholder for any commiffioner of a {hire, though otherwife qua-
lified, as was lately determined by the houfe of lords in the cafe of
lord Daer, March 26, 1793. But the eldeft fops of Scotch peers
may reprefent any place in England, as many do. (2 Hatf. Prec.
12.) The two ftatutes, 9 Ann. c. 5. and 33 Geo. II. c. 20.
requiring knights of mires and members for boroughs to have
refpeftively 6oo/. and 3oo/. a-year, are exprefsly confined to
England. But a commiflioner of a fliire muft be a freeholder, and
it is a general rule that none can be elected, but thofe who can
cleft. (Wight, 289.) And till the contrary was determined by a
committee of the houfe of commons in the cafe of Wigtown in
1775, ( 2 Doug. 1 8 1.) it was fuppofed that it was neceflary that
every reprefentative of a borough fliould be admitted a burgefs of
one of the boroughs which he reprefented. ( Wight, 404. ) It ftill
holds generally true in (hires in Scotland, that the qualifications of
the ele&ors and elefted are the fame ; or that eligibility and a
right to eleft are convertible terms. Upon fome future occafion I
(hall endeavour to prove, that, in the origin of reprefentation, they
were univerfally the fame in England.
(7) Since the union, the following orders have been made in the
houfe of lords refpefting the peerage of Scotland. Queen Anne,
in the feventh year of her reign, had created James duke of
Queenfberry duke of Dover, with remainder in tail to his fecond
I 4 fon,
97 OftheCoiwrmzs/ulyeflto IN TROD.
THESE are the principal of the twenty-five articles of
union, which are ratified and confirmed by the ftatute 5 Ann.
c. &. in which ftatute there are alfo two a&s of parliament
fon, then earl of Sol way in Scotland; and upon the 21 ft of
January 1708-9, it was refolved by the lords, that a peer of
Scotland claiming to fit in the houfe of peers by virtue of a patent
paffed under the great feal of Great Britain, and who now fits in
the parliament of Great Britain, had no right to vote in the election
of the fixteen peers who are to reprefent the peers of Scotland in
parliament.
The duke of Hamilton having been created duke of Brandon,
it was. refolved by the lords on the 2oth of December 171 1, that no
patent of honour granted to any peer of Great Britain, who was
a peer of Scotland at the time of the union, mould entitle him to
fit in parliament. Notwithftanding this refolution gave great of-
fence to the Scotch peerage, and to the queen and her miniftry,
yet a few years afterwards, when the duke of Dover died, leaving
the earl of Solway, the next in remainder, an infant, who, upon
his coming of age, petitioned the king for a writ of fummons
as duke of Dover; the queftion was again argued on the i8th
of December 1719, and the claim as before difallowed. (See the
argument, i P. IVmt. 582.) But in i78z the duke of Hamilton
claimed to fit as duke of Brandon, and the queftion being referred
to the judges, they were unanimoufly of opinion, that the peers of
Scotland are not difabled from receiving, fubfequently to the union,
a patent of peerage of Great Britain, with all the privileges ufually
incident thereto. Upon which the lords certified to the king,
that the writ of fummons ought to be allowed to the duke of
Brandon, who now enjoys a feat as a Britifli peer. (6th June 1782.)
But there never was any objection to an Englifli peer's taking a
Scotch peerage by defcent ; and therefore, before the laft decifion,
when it was wifhed to confer an Englifli title upon a noble family
of Scotland, the eldeft fon of the Scotch peer was created in his
father's life-time an Englifli peer, and this creation was not affeft-
ed by the annexation by inheritance of the Scotch peerage.
On the 1 3th February 1787, it was refolved, that the earl of
Abercorn and the duke of Queenfberry, who had been chofen of
the number of the 16 peers of Scotland, having been created
peers
4- the LAWS of ENGLAND. 97
recited ; the one of Scotland, whereby the church of Scot-
land and alfo the four univerfities of that kingdom are efta-
blifhed for ever, and all fucceeding fovereigns are to take an
oath invariably to maintain the fame ; the other of England,
5 Ann. c. 6. whereby the a&s of uniformity of 13 Eliz. and
1 3 Car. II. (except as the fame had been altered by parlia-
ment at that time) and all other ab then in force for the
prefervation of the church of England, are declared perpe-
tual ; and it is ftipulated that every fubfequent king and
queen fhall take an oath inviolably to maintain the fame
within England, Ireland, Wales, and the town of Berwick-
upon-Tweed. And it is enated, that thefe two afts " fhall
" for ever be obferved as fundamental and eflential condi-
" tions of the union."
UPON thefe articles and aft of union, it is to be obferved,
i. That the two kingdoms are now Co infeparably united, that
nothing can ever difunite them again ; except the mutual con-
fent of both, or the fuccefsful refiftance of either, upon appre-
hending an infringement of thofe points ; which, when they
were feparate and independent nations, it was mutually ftipu-
lated mould be " fundamental and eflential conditions of the
peers of Great Britain, thereby ceafed to fit in that houfe as
reprefentatives of the peerage. See the argument in Ann. Reg. for
1787, p. 95. At the election occafioned by the laft refolution,
the dukes of Queenfberry and Gordon had given their votes as
peers of Scotland, contrary to the refolution of 1709; in confe-
quence of which it was refolved, i8th May 1797, that a copy of
that refolution fhould be tranfmitted to the lord regifter of Scot-
land as a rule for his future proceeding in cafes of ele&ion.
The duke of Queenfberry and marquis of Abercorn had ten-
dered their votes at the laft general election, and their votes were
reje&ed ; but notwithstanding the former refolutions, on 23d May
1793, it was refolved, that if duly tendered they ought to have
been counted.
" union."
98 Of the COUNTRIES fubjett to INTROD.
" union e . w 2. That whatever elfe may be deemed " fun-
" damental and efiential conditions," the prefervation of the
two churches of England and Scotland, in the fame ftate that
they were in at the time of the union, and the maintenance of
the ats of uniformity which eftablifh our common prayer,
are exprefsly declared fo to be. 3. That therefore any alter-
ation in the conftitution of either of 'thofe churches, or in
the liturgy of the church of England, (unlefs with the confent
of the refpe&ive churches, collectively or reprefentatively
given,) would be an infringement of thefe " fundamental
" and eflential conditions," and greatly endanger the union.
4. That the municipal laws of Scotland are ordained to be
ftill obferved in that part of the ifland, unlefs altered by
parliament ; and, as the parliament has not yet thought
proper, except in a few inftances, to alter them, they ftill
e It may juftly be doubted, whether To illuftrate this matter a little far-
even fuch an infringement (though a ther ; an a<3 of parliament to repeal or
manifeft breach of good faith, unlefs done alter the aft of uniformity in Englsnd,
upon the moft prefling neceflity) would or to eftablith epifcopacy in Scotland,
of itfelf diflblre the union ; for the bare would doubtlefs in point of authority be
idea of a ftate, without a power fome- fufficiently valid and binding ; and, not-
where vefted to alter every part of it's vvithftanding fuch an aft, the union
laws, is the height of political abfurdity. would continue unbroken. Nay, each
The truth feems to be, that in fuch an of thefe meafures might be fafely and ho-
incorporate union (which is well diftin- nourably purfued, if refpedtively agree-
guithed by a very learned prelate from able to the fentiments of the Englifh
zfoedcratc alliance, where fuch an in- church, or the kirk in Scotland. But
fringement would certainly refcind the it fhould feem neither prudent, nor per-
compaft) the two contracting ftates are haps confident with good faith, to ven-
totally annihilated, without any power ture upon either of thofe fteps, by a fpon-
of a revival ; and a third arifes from their taneous exertion of the inherent powers
conjunction, in which all the rights of of parliament, or at the inftance of mere
fovereiirnty, and particularly that of le- individuals. So facred indeed are the
giflation, muft of neceflity refide. (See laws above mentioned (for protecting
Warburton's alliance, 195.) But the each church and the Englifh liturgy)
wanton or imprudent exertion of this efteemed, that in the regency afts both
right would probably raife avery alarm- of 1751 and 1765 the regents are ex-
ing ferment in the minds of individuals ; prefsly difabled from afTenting to the
and therefore it is hinted above that fuch repeal or alteration of either thefe, or
an attempt might endanger (though by the aft of fettlement.
no means deflroy) the union.
(with
4 *h* LAWS of ENGLAND. 98
(with regard to the particulars unaltered) continue in full
force. Wherefore the municipal or common laws of Eng-
land are, generally fpeaking, of no force or validity in Scot-
land (8) ; and of confequence, in the enfuing commentaries,
we fhall have very little occafion to mention, any farther than
fometimes by way of illuftration, the municipal laws of that
part of the united kingdoms.
THE town of Berwick-upon-Tweed was originally part of [ 99 !I
the kingdom of Scotland ; and, as fuch, was for a time reduced
by king Edward I. into the pofleffion of the crown of Eng-
land : and during fuch it's fubjeftion, it received from that
prince a charter, which (after it's fubfequent ceffion by Ed-
ward Balliol, to be for ever united to the crown and realm
of England) was confirmed by king Edward III., with fome
additions ; particularly, that it mould be governed by the
laws and ufages which it enjoyed during the time of king
Alexander, that is, before its reduction by Edward I. Its
conftitution was new-modelled, and put upon an Englim
footing by a charter of king James I. ; and all it's liberties,
franchifes, and cuftoms were confirmed in parliament by
the ftatutes 22 Ed. IV. c. 8. and 2 Jac. I. c. 28. Though
therefore it hath fome local peculiarities, derived from the
antient law of Scotland f , yet it is clearly part of the realm
of England, being reprefented by burgefles in the houfe of
commons, and bound by all acts of the Britifh parliament,
whether fpecially named or otherwife. And therefore it w;\s
(perhaps fuperfluoufly) declared by ftatute 20 Geo. II. c. 42 ,
that where England only is mentioned in any act of parlia-
ment, the fame notwithstanding hath and fliall be deemed to
f Hale Hift. C. L. 183. i Sid. 382. 462. a Show. 365.
(8) A&s of parliament in general paffed fince the union, extend
to Scotland : but where a ftatute is not applicable to Scotland, and
where Scotland is not intended to be included, the method is to
declare by provifo that it does not extend to Scotland. 3 Burr. 853.
comprehend
99 Of tf }e COUNTRIES fubjeft to INTROD*
comprehend the dominion of Wales and town of Berwick-
upon-Tweed. And though certain of the king's writs or
procefies of the courts of Weftminfter do not ufually run into
Berwick, any more than the principality of Wales, yet it hath
been folemnly adjudged g that all prerogative writs (as thofe
of mandamus , prohibition, habeas corpus ', certwrari^ &c.} may
iflue to Berwick, as well as to every other of the dominions
of the crown of England, and that indictments and other
local matters arifing in the town of Berwick may be tried by
a jury of the county of Northumberland (9).
As to Ireland, that is ftill a diftinct kingdom ; though a
dependent fubordinate kingdom. It was only entitled the
dominion or lordfhip of Ireland h , and the king's ftyle was no
100 ] other than dominus Hiberniae, lord of Ireland, till the thirty-
third year of king Henry the eighth ; when he affumed (10)
the title of king, which is recognized by an act of parliament
35 Hen. VIII. c. 3. But, as Scotland and England are now
one and the fame kingdom, and yet differ in their municipal
laws ; fo England and Ireland are, on the other hand, dif-
tint kingdoms, and yet in general agree in their laws. The
inhabitants of Ireland are, for the moft part, defcended
from the Englifh, who planted it as a kind of colony, after
the conqueft of it by king Henry the fecond : and the laws
of England were then received and fworn to by the Irifh
Cro. Jac. 543. a Rol. Abr. 292. h Stat. Hiberniae, 14 Hen. III.
Stat. ii Geo. I. 0.4. 4 Burr. 834.
(9) See the cafe of the King v. Cowle, in 2 Burr. 834. in
which Lord Mansfield feems to have collected and methodized all
the learning refpefting the conititution of the town of Berwick-
upon-Tweed.
( 10) The title of king was conferred upon him and his fuccefibrs
by a ftatute pafled in Ireland exprefsly for that purpofe, and it was
made treafon for any inhabitant of Ireland to deny it. 33 Hen. FIJI.
t. i. Ir't/b Stat.
nation,
4 the LAWS of ENGLAND. 100
nation, affembled at the council of Lifmore'. And as Ire-
land, thus conquered, planted, and governed, ftill continues
in a (late of dependence, it muft neceflarily conform to, and
be obliged by, fuch laws as the fuperior ftate thinks proper
to prefcribe.
AT the time of this conqueft the Irifli were governed by
what they called the Brehon law, fo ftyled from the Irifh.
name of judges, who were denominated Brehons k . But
king John in the twelfth year of his reign went into Ireland,
and carried over with him many able fages of the law ; and
there by his letters patent, in right of the dominion of con-
queft, is faid to have ordained and eftablifhed that Ireland
fhould be governed by the laws of England l : which letters
patent fir Edward Coke m apprehends to have been there
confirmed in parliament. But to this ordinance many of
the Irifh were averfe to conform, and ftill ftuck to their
Brehon law : fo that both Henry the third n and Edward the
firft were obliged to renew the injunction ; and at length in
a parliament holden at Kilkenny, 40 Edw. III. under Lionel
duke of Clarence, the then lieutenant of Ireland, the Brehon
law was formally abolifhed, it being unanimoufly declared
to be indeed no law, but a lewd cuftom crept in of later
times. And yet, even in the reign of queen Elizabeth, the [ 101 ]
wild natives ftill kept and preferved their Brehon law; which
is defcribed p to have been " a rule of right unwritten, but
" delivered by tradition from one to another, in which often-
" times there appeared great (hew of equity in determining
" the right between party and party, but in many things
' Pryn. on 4 Inft. 149. utuntur Hybernici Deo dctcftabilet ex-
k 4 '"ft- 358. Etim. Spenfer's ftate ijlunt, et omni juri Ji/onant, adco quod
of Ireland, p. 1513. edit. Hughes. leges cenferi non debeant ; noti, et con-
' Vaugh. 294. a Pryn. Rec. 85. ftlio nojlro fat'it videtur expedient, eif-
7 Rep. Z3. ' dem utcndas conccdcrc leget Anglicanat.
m i Inft. 141. 3 Pryn. Rec. izi8.
" A.R. 30. i Rym. Ftcd. 44Z. P Edm. Speuler, ibid.
" A. X. S> fro eo quodlcget quibu,
" repugnant
ioi Of the COUNTRIES fubjeft to INTROD.
" repugnant quite both to God's laws and man's." The
latter part of this chara&er alone is afcribed to it, by the
laws before cited of Edward the firft and his grandfon.
BUT as Ireland was a diilintl dominion, and had parlia-
ments of its own, it is to be obferved, that though the im-
memorial cuftoms, or common law of England, were made
the rule of juftice in Ireland alfo, yet no ab of the Englifh
parliament, fince the twelfth of king John, extended into
that kingdom ; unlefs it were fpecially named, or included
under general words, fuch as, " within any of the king's
" dominions." And this is particularly exprefied, and the
reafon given in the year-books q : " a tax granted by the par-
" liament of England (hall not bind thofe of Ireland, becaufe
*< they are not fummoned to our parliament :" and again,
* Ireland hath a parliament of it's own, and maketh and
<{ altereth laws ; and our ftatutes do not bind them, becaufe
** they do not fend knights to our parliament ; but their
" perfons are the king's fubjets, like as the inhabitants of
'* Calais, Gafcoigne, and Guienne, while they continued
<f under the king's fubje&ion." The general run of laws,
enacted by the fuperior ftate, are fuppofed to be calculated
for it's own internal government, and do not extend to it's
diftant dependent countries , which, bearing no part in the
legiflature, are not therefore in it's ordinary and daily con-
templation. But, when the fovereign legiflative power fees
it neceflary to extend it's care to any of it's fubordinate
dominions, and mentions them exprefsly by name or includes
them under general words, there can be no doubt but then
they are bound by it's laws r .
[ 102 ] THE original method of paffing ftatutes in Ireland was
nearly the fame as in England, the chief governor holding
parliaments at his pleafure, which ena&ed fuch laws as they
thought proper *. But an ill ufe being made of this liberty,
20 Hen. VI. 8. a Ric. III. 11. IrHh Statute, n Eliz. ftat. 3.
' Year-book i Hen. VII. 3. 7 Rep. aa. c. 8.
Calvin's cafe.
1 6 particularly
4- the LAWS of ENGLAND. 102
particularly by lord Gormanftown, deputy-lieutenant in the
reign of Edward IV. l , a fet ,of flatutes were there enacted in
the 10 Hen. VII. (fir Edward Poynings being then lord de-
puty, whence they are called Poynings' laws) one of which u ,
in order to re drain the power as well of the deputy as the
Irifh parliament, provides, i. That before any parliament be
fummoned or holden, the chief governor and council of Ire-
land mall certify to the king under the great feal of Ireland
the confederations and caufes thereof, and the articles of the
acts propofed to be pafled therein. 2. That after the king,
in his council of England, (hall have confidered, approved,
or altered the faid acts or any of them, and certified them
back under the great feal of England, and mall have given
licence to fummon and hold a parliament, then the fame
mail be fummoned and held ; and therein the faid acts fo
certified, and no other, (hall be propofed, received, or reject-
ed. But as this precluded any law from being propofed,
but fuch as were pre-conceived before the parliament was in
being, which occafioned many inconveniences and made fre-
quent diflblutions neceflary, it was provided by the ftatute of
Philip and Mary before cited,* that any new propofitions
might be certified to England in the ufual forms, even after
the fummons and during the feffion of parliament. By this
means however there was nothing left to the parliament in
Ireland, but a bare negative or power of rejecting, not of
propofing or altering any law. But the ufage now is, that
bills are often framed in either houfe, under the denomina-
tion of " heads for a bill or bills :"-and in that fhapethey are
offered to the confideration of the lord lieutenant and privy
council : who upon fuch parliamentary intimation, or other-
wife upon the application of private perfons, receive and
tranfmit fuch heads, or reject them without any tranfmiflion, [103
to England. And with regard to Poynings' law in parti-
cular, it cannot be repealed or fufpended, unlefs the bill for
* Iriih Stat. 10 Hen. VII. c. 23. M. c. 4.
u Cap. 4. expounded by 3 & 4 Ph. & * 4 Inft. 35 >
that
103 f f ^ f C UNTRIES fubjeft Is INTROD.
that purpofe, before it be certified to England, be approved
by both houfes* (12).
x Irilh Stat. 1 1 Eliz. ftat. 3. c. 38.
(12) The hiftory of the proceedings of the Irifh parliament
pubiifhed by lord Mountmorres, is a very valuable acceffion to
conftitutional learning. It is a publication which, befides being
immediately ufeful to Ireland, affords much important information
to thofe who are defirous of having a well-grounded and an
accurate knowledge of the Englifh conftitution : for the public
proceedings of the neighbouring kingdoms of Scotland and Ireland
furnifh ftrong arguments from analogy, when difficult queftion*
arife refpefting the Englifh conftitution ; and they are fometimes
irrefragable evidence of antient principles which were once common
to them all.
Lord Mountmorres obferves upon the ftatute referred to by the
learned Judge, that to repeal Poynings' law it required the confent
of the greater number of the lords and commons, which, if it meant
any thing, muft fignify a majority, not of thofe who happened to
be prefent but, of the whole number fummoned to parliament ; and
that the requifition in that fenfe was ftridly complied with in 1782,
when Poynings' law was repealed, I Vol. p. 53.
I mall here take the liberty to fubjoin an extract from what
lord Mountmorres calls *' a fhort view of the former, and of the
" prefent method of paffing laws and of holding parliaments in
" Ireland," as it contains a clearer and more authentic account
than I could elfewhere colleft.
" Before a parliament was held, it was expedient, antecedent
" to one thoufand feven hundred and eighty-two, that the lord
" lieutenant and council mould fend over an important bill as a
" reafon for fummoning that affembly. This always created violent
" difputes, and it was conftantly rejected ; as a money-bill, which
" originated in the council, was contrary to a known maxim, that
the commons hold the purfe of the nation ; and as all grants
*' originate from them, fince, in early times, they were ufed to
*' confult with their conftituents upon the mode, duration, and
' quantum of the fupply.
" Propofitions for laws, or heads of bills, as they are called,
* originated indifferently in either houfe. After two readings and
" a committal, they were fent by the council to England, and were
fub-
4 the LAWS of ENGLAND. 103
BUT the Irifti narion, being excluded from the benefit of
the Englifh ftatutes, were deprived of many good and pro-
fitable laws, made for the improvement of the common law ;
and, the meafure of juftice in both kingdoms becoming
" fubmitted, ufually by the Englifh privy council, to the attorney
** and folicitor general ; and from thence they were returned to the
" council of Ireland, from whence they were fent to the commons,
" if they originated there, (if not, to the lords,) and after three
" readings they were fent up to the houfe of lords, where they went
" through the fame ftages ; and then the lord -lieutenant gave the
" royal afient in the fame form which is obferved in Great Britain.
" In all thefe ftages in England and Ireland, it is to be remem-
" bered, that any bill was liable to be reje&ed, amended, or altered ;
" but that when they had paffed the great feal of England, no
" alteration could be made by the Irifh parliament.
" At prefent, by the chief baron Yelverton's law, it is not
" necefiary for the council to certify a bill under the great feal of
" Ireland, as a reafon for fummoning a parliament, but it is
" ordered to be convoked by proclamation from the crown, as it
*' is fummoned in England.
" Touching bills, they now originate in either houfe, and go
" from one to the other, as they do in England ; after which they
*' are depofited in the lords' office, when the clerk of the crown
" takes a copy of them, and this parchment is attefted to be a
" true copy, by the great feal of Ireland on the left fide of the
" inftrument. Thus they are fent to England by the Irifh coun-
" cil, and if they are approved of by the king, this tranfmifs, or
" copy, comes back with the great feal of England on the right
fide, with a comimflion to the lord-lieutenant to give the royal
affent. All bills, except money bills, remain in the lords' office ;
but bills of fupply are fent back to the houfe of commons to be
prefented by the fpeaker at the bar of the lords for the royal
affent. Hence it is manifeft, that no alteration can now be made
in bills, except in parliament, as the record, or original roll,
remains in the lords' office till it obtains the royal aflent.
" Of the rejection of bills, or not returning them from England,
it is faid there are very few inftances of fuch a refufal by the
crown fince one thoufand feven hundred and eighty-two ;
though, doubtlefs, the royal negative in both kingdoms is as
clear a privilege as any other prerogative." i Vol. 57.
VOL. I. K thence
103 Of the CovxtmES fubjefl to INTROD
thence no longer uniform, it was therefore enacted, by an-
other of Poynings' laws y , that all acls of parliament, before
made in England, fhould be of force within the realm of
Ireland 2 . But, by the fame rule, that no laws made in Eng-
land, between king John's time and Poynings' law, were then
binding in Ireland, it follows that no acts of the Englifh par-
liament made fince the 10 Hen. VII. do now bind the people
of Ireland, unlefs fpecially named or included under general
words 1 . And on the other hand it is equally clear, that
where Ireland is particularly named, or is included under'ge-
neral words, they are bound by fuch acts of parliament. For
this follows from the very nature and conftitution of a de-
pendent ftate : dependence being very little elfe, but an ob-
ligation to conform to the will or law of that fuperior perfon
or ftate, upon which the inferior depends. The original and
true ground of this fuperiority, in the prefent cafe, is what
we ufually call, though fomewhat improperly, the right of
conqueft j a right allowed by the law of nations, if not by
that of nature ; but which in reafon and civil policy can
mean nothing more, than that, in order to put an end to
hoftilities, a compact is either exprefsly or tacitly made be-
tween the conqueror and the conquered, that if they will
acknowledge the victor for their mailer, he will treat them
for the future as fubjects, and not as enemies b .
BUT this ftate of dependence being almoft forgotten, and
ready to be difputed by the Irifh nation, it became neceffary
fome years ago to declare how that matter really ftood : and
therefore by flat. 6 Geo. I. c. 5. it is declared, that the king-
dom of Ireland ought to be fubordinate to, and dependent
[ 104] upon, the imperial crown of Great Britain, as being infeparably
united thereto ; and that the king's majefty, with the confent
of the lords and commons of Great Britain in parliament,
hath power to make laws to bind the people of Ireland (13).
* cap. 22. a 12 Rep. ii 2.
z 4 Inft. 3.5 1. b Puff. L. of N. viii. 6. 24.
(13) Prynne, in his learned argument, has enumerated feveral
ftatues made in England from the time of king John, by which
Ireland
4 the LAWS ^ENGLAND. 104
THUS we fee how extenfively the laws of Ireland commu-
nicate with thofe of England j and indeed fuch communi-
cation is highly neceffary, as the ultimate refort from the
courts of juftice in Ireland is, as in Wales, to thofe in Eng-
land : a writ of error (in the nature of an appeal) lying from
the king's bench in Ireland to the king's bench in England ,
as the appeal from the chancery in Ireland lies immediately
to the houfe of lords here : it being exprefsly declared, by
the fame ftatute, 6 Geo. I. c. 5. that the peers of Ireland
have no jurifdiUon to affirm or reverfe any judgments or de-
crees whatfoever (14). The propriety and even neceffity, in
all inferior dominions, of this conftitution, " that, though
c This was law in the time of Hen, intitled diverjify of courts, c. bank le
VIII. ; as appears by the ancient book, roy.
Ireland was bound. (8 St. Tr. 343.) That was an argument to
prove that Lord Connor Maguire, baron of Imiefkillin in Ireland,
who had committed treafon in that country, by being the prin-
cipal contriver and inftigator of the Irifli rebellion and maffacre in
the time of Car. I. and who had been brought to England againfl
his will, could be lawfully tried for it in the king's bench at Weft-
minfter, by a Middlefex jury, and be oufted of his trial by his peers
in Ireland, by force of the ftatute of 35 Hen. VIII. c. 2.
The prifoner having pleaded to the jurifdidtion, the court, after
hearing this argument, over-ruled the plea, and the decifion was
approved of by a refolution of the two houfes of parliament, and
lord Maguire was found guilty, and was afterwards executed at
Tyburn as a traitor.
( 14) By an ad patted in the 22 Geo. III. c. 53. the ftatute of
Geo. I. is fimply repealed. But as the ftatute of Geo. I. was
thought to be merely declaratory of the former law, the repeal
of it could produce no further operation than to render the law
in fome degree iefs clear than that ftatute had made it. Therefore,
to produce the intended effect, it required another ftatute, which
was pafled in the 23 Geo. III. c. 28. which exprefsly declared,
that in all cafes whatever the people of Ireland fhould be bound
only by laws enacted by his majefty and the parliament of that
kingdom : and that no appeal or writ of error from any court in
Ireland fhould for the future be brought into any of the courts in
England.
K 2 "juftice
104 OftheCowiKiEsfubjefito INTROD.
" juftice be in general adminiftered by courts of their
own, yet that the appeal in the laft refort ought to
" be to the courts of the fuperior ftate," is founded upon
thefe tworeafons. I. Becaufe otherwife the law, appointed
or permitted to fuch inferior dominion, might be infenfibly
changed within itfelf, without the aflent of the fuperior.
2. Becaufe otherwife judgments might be given to the dif-
advantage or diminution of the fuperiority ; or to make the
dependence to be only of the perfon of the king, and not of
the crown of England" 1 (15).
" Vaugh.402.
(15) The following ftatement of that great and moft important
event, the union of Great Britain and Ireland, is extracted from
the 39 & 40 Geo. III. c. 67.
In purfuance of his Majefty's moft gracious recommendation to
the two houfes of parliament in Great Britain and Ireland refpec-
tively, to confider of fuch meafures as might beft tend to ftrengthen
and confolidate the connection between the two kingdoms, the
two houfes of parliament in each country refolved, that, in order
to promote and fecure the effential interefts of Great Britain and
Ireland, and to confolidate the ftrength, power, and refources of
the Britifh Empire, it was advifeable to concur in fuch meafures
as fhould beft tend to unite the two kingdoms into one kingdom,
on fuch terms and conditions as fliould be eftablifhed by the acts
of the refpective parliaments in the two countries. And, in fur-
therance of that refolution, the two houfes of each parliament
agreed upon eight articles, which, by an addrefs of the refpe&ive
houfes of parliament, were laid before his Majefty for his confider-
ation ; and his Majefty having approved of the fame, and having
recommended it to his Parliaments in Great Britain and Ireland to
give full effect to them, they were ratified by an aft paffed in the
parliament of Great Britain on the 2d of July 1 8oc.
Art. I. That the kingdoms of Great Britain and Ireland (hall
on the firft day of January 1801, and for ever after, be united
into one kingdom, by the name of The United Kingdom of Great
Britain and Ireland ; and that the royal ftyle and titles of the
imperial crown, and the enfigns, armorial flags, and banners, mall
be fuch as fliould be appointed by his Majefty's royal proclam-
ation-
Art.
4. the LAWS of ENGLAND. 105
WITH regard to the other adjacent iflands which are fub-
jeft to the crown of Great Britain, fome of them (as the ifle
Art. II. That the fucceffion to the imperial crown fhall continue
fettled in the fame manner as the fucceffion to the crown of Great
Britain and Ireland ftood before limited.
Art. III. That there (hall be one parliament, ftyled, The Par-
liament of the United* Kingdom of Great Britain and Ireland.
Art. IV. That four lords fpiritual of Ireland, by rotation of
feffions, and 28 lords temporal of Ireland, elected for life by the
Peers of Ireland, fhall fit in the Houfe of Lords ; and 100 com-
moners, two for each county, two for the city of Dublin, and two
for the city of Cork, one for Trinity College, and one for each of
the 3 1 moft confiderable cities and boroughs, fhall be the number
to fit in the Houfe of Commons on the part of Ireland.
That queftions refpecting the rotation or election of the fpiritual
or temporal peers fhall be decided by the Houfe of Lords, and
in the cafe of an equality of votes in the election of a temporal
peer, the clerk of the parliament fhall determine the election by
drawing one of the names from a glafs.
That a peer of Ireland, not elected one of the 28, may fit in
the Houfe of Commons ; but whilft he continues a member of the
Houfe of Commons, he fhall not be entitled to the privilege of
peerage, nor capable of being elected one of the 28, nor of voting
at fuch election, and he fhall be fued and indicted for any offence as
a commoner.
That as often as three of the peerages of Ireland, exifting at the
time of the Union, fhall become extinct, the king may create one
peer of Ireland ; and when the peers of Ireland are reduced to i oo
by extinction, or otherwife, exclufive of thofe who fhall hold any
peerage of Great Britain fubfifting at the time of the Union, or
created of the united kingdom fince the Union, the king may then
create one peer of Ireland for every peerage that becomes extinct,
or as often as any one of them is created a peer of the united
kingdom, fo that the king may always keep up the number of
100 Irifh peers, over and above thofe who have an hereditary feat
in the Houfe of Lords.
That queftions refpecting the election of the members of the
Houfe of Commons returned for Ireland, fhall be tried in the fame
manner, as queftions refpecting the elections for places in Great
Britain, fubject to fuch particular regulations as the parliament
afterwards fhall deem expedient.
K 3 That
105 Of the COUNTRIES fubjett to INTROD,
of Wight, of Portland, of Thanet, &c.) are comprized
within fome neighbouring county, and are therefore to be
That the qualifications by property of the representatives in
Ireland, fhall be the fame refpeftively as thofe for counties, cities,
and boroughs in England, unlefs fome other provifion be afterwards
made.
Until an aft fhall be pafled in the parliament of the united king-
dom, providing in what cafes perfons holding offices and places of
profit under the crown of Ireland, fhall be incapable of fitting in
the Houfe of Commons, not more than 20 fuch perfons fhall be
capable of fitting ; and if more than 20 fuch perfons fhall be
returned from Ireland, then the feats of thofe above 20 fhall be
vacated, who have laft accepted their offices or places.
That all the lords of parliament on the part of Ireland, fpiritual
and temporal, fitting in the Houfe of Lords, fhall have the fame
rights and privileges refpe&ively as the peers of Great Britain ;
and that all the lords fpiritual and temporal of Ireland fhall have
rauk and precedency next and immediately after all the perfons
holding peerages of the like order and degree in Great Britain,
fubfifting at the time of the Union ; and that all peerages hereafter
created of Ireland, or of the united kingdom, of the fame degree,
fhall have precedency according to the dates of their creations ;
and that all the peers of Ireland, except thofe who are members
of the Houfe of Commons, fhall have all the privileges of peers
as fully as the peers of Great Britain, the right and privileges
of fitting in the Houfe of Lords, and upon the trial of peers, only
excepted.
Art. V. That the churches of England and Ireland be united
into one proteftant epifcopal church, to be called The United
Church of England and Ireland ; that the do&rine and worfhip
fhall be the fame ; and that the continuance and prefervation of the
united church as the eftablifhed church of England and Ireland,
fhall be deemed an effential and fundamental part of the Union ;
and that, in like manner, the church of Scotland fhall remain the
fame as is now eftablifhed by law, and by the afts of union of
England ^nd Scotland.
Art. VI. The fubjefts of Great Britain and Ireland fhall be
entitled to the fame privileges with regard to trade and navigation,
and alfo in refpeft of all treaties with foreign powers.
That all prohibitions and bounties upon the importation of
merchandize from one country to the other fhall ceafe.
But
4 THl the LAWS of ENQLAND. IQ
looked upon as annexed to the mother ifland, and part of the
kingdom of England. But there are others which require a
more particular confideration.
AND, firft, the ifle pf Man is a diftind territory from Eng-
land, and is not governed by our laws : neither doth any at
of parliament extend to it, unlefs it be particularly named
But that the importation of certain articles therein enumerated
fhall be fubject to fuch countervailing duties as are fpecified in the
aft.
Art. VII. The finking funds, and the intereft of the national
debt, of each country, fhall be defrayed by each feparately. And,
for the fpace of 20 years after the Union, the contribution of
Great Britain and Ireland towards the public expenditure in each
year, fhall be in the proportion of fifteen to two, fubject to future
regulations.
Art. VIII. All the laws and courts of each kingdom fhall
remain the fame as they are now eftablifhed, fubject to fuch alter-
ations by the united parliament as circumftances may require : but
that all writs of error and appeal fhall be decided by the Houfe of
Lords of the united kingdom, except appeals from the court of
admiralty in Ireland, which mail be decided by a court of delegates
appointed by the court of chancery in Ireland.
The ftatute then recites an act pafled in the parliament of
Ireland, by which the rotation of the four fpiritual lords for each
feffions is fixed ; and it alfo directs the time and mode of electing the
28 temporal peers for life ; and it provides that 64 county mem-
bers fhall be elected, two for each county, two for the city of Dublin,
two for the city of Cork, one for Trinity College, Dublin, and one
for each of 3 1 cities and towns which are there fpecified, which are
the only places in Ireland to be reprefented in future. One of the
two members of each of thofe places was chofen by lot, unlefs the
other withdrew his name to fit in the firft parliament, but at the
next elections, one member only will be returned.
An Irifh peer is now entitled to every privilege, except that of
fitting in the Houfe of Lords ; unlefs he choofes to waive it, in
order to fit in the Houfe of Commons ; and therefore Irifh peers,
who are not members of the Houfe of Commons, are entitled to
the letter miffive from the court of chancery, when a bill is filed
againft them. 8 Vef. Jun. 60 1.
K 4 therein ;
105 Of the COUNTRIES fubjeft to INTROD,
therein ; and then an aft of parliament is binding there e . It
was formerly a fubordinate feudatory kingdom, fubjeft to the
kings of Norway ; then to king John and Henry III. of Eng-
land ; afterward to the kings of Scotland ; and then again to
the crown of England : and at length we find king Henry IV.
claiming the ifland by right of conqueft, and difpofing of it
to the earl of Northumberland ; upon whofe attainder it was
granted (by the name of the lordfhip of Man) to fir John
de Stanley by letters patent 7 Henry IV. f In his lineal de-
fcendants it continued for eight generations, till the death of
Ferdinando earl of Derby, A. D. 1594 : when a controverfy
arofe concerning the inheritance thereof, between his daugh-
ters and William his furviving brother ; upon which, and a
doubt that was ftarted concerning the Validity of the original
patent g , the ifland was feized into the queen's hands, and
afterwards various grants were made of it by king James the
firft j all which being expired or furrendered, it was granted
afrefh in 7 Jac. I. to William earl of Derby, and the heirs
male of his body, with remainder to his heirs general ; which
grant was the next year confirmed by aft of parliament, with
a reftraint of the power of alienation by the faid earl and his
iflue male. On the death of James earl of Derby, A. D.
1735, the male line of earl William failing, the duke of
Atholl fucceeded to the ifland as heir general by a female
branch. In the mean time, though the title of king had
long been difufed, the earls of Derby, as lords of Man, had
maintained a fort of royal authority therein ; by aflenting or
1 06 ] diflenting to laws, and exercifmg an appellate jurifdiftion.
Yet, though no Englifh writ, or procefs from the courts of
Weftminfter, was of any authority in Man, an appeal lay
from a decree of the lord of the ifland to the king of Great
Britain in council h . But the diftinft jurifdiction of this little
fubordinate royalty being found inconvenient for the purpofes
of public juftice, and for the revenue, (it affording a com-
modious afylum for debtors, outlaws, and fmugglers,) autho-
rity was given to the treafury by ftatute 12 Geo. I. c. 28. to
purchafe the interefl of the then proprietors for the ufe of the
- 4 Inft. 884. % And.n6. B Camden, Eli/. A, D. 1594.
f SeHen, tit. lion. i. 3. *> i P. Wras. 329.
crown :
4- the LAWS of ENGLAND, 106
crown : which purchafe was at length completed in the year
1765, and confirmed by ftatutes 5 Geo. III. c. 26. and 39.
(15), whereby the whole ifland and all its dependencies fo
granted as aforefaid, (except the landed property of the
Atholl family, their manerial rights and emoluments, and
the patronage of the bifhoprick ' and other ecclefiaftical
benefices,) are unalienably vefted in the crown, and fub-
je&ed to the regulations of the Britifti excife and cuftoms.
THE iflands of Jerfey, Guernfey, Sark, Alderney, and
their appendages, were parcel of the duchy of Normandy,
and were united to the crown of England by the firft princes
of the Norman line. They are governed by their own laws,
which are for the moil part the ducal cuftoms of Normandy,
being collected in an antient book of very great authority,
entitled, le grand coujlumier. The king's writ, or procefs
from the courts of Weftminfter, is there of no force ; but
his commiflion is. They are not bound by common ats of
our parliaments, unlefs particularly named k . All caufes
are originally determined by their own officers, the bailiffs
and jurats of the iflands ; but an appeal lies from them to
the king and council, in the laft refort.
BESIDES thefe adjacent iflands, our more diftant plant-
ations in America and elfewhere, are alfo in fome refpects
fubjecl: to the Englifli laws. Plantations or colonies, in dif-
tant countries, are either fuch where the lands are claimed [107
1 The bifhoprick of Man or Sodor, nexed to that of York, by ftatute 33
or Sotlor and Man, was formerly within Hen. VIII. 3. 31.
the province of Canterbury, but an- k 4 Inft. 386.
(15) c. 26. is called the vefting ac>, and c. 39. the regulating
aft.
It ftill affords the fame protection and afylum for debtors and
outlaws, as before the purchafe of it by the crown of England.
The revenue only has been regarded by the legiflature in the fub-
fequent ftatutes. The internal laws of the ifland, with refpeft to
debtors and outlaws, ftill remain unaltered.
by
IPf Of the CouNTRiEs/#/Vtf to INTROD.
by right of occupancy only, by finding them defart and
uncultivated, and peopling them from theNmother-country ;
or where, when already cultivated, they have been either
gained by conqueft, or ceded to us by treaties. And both
thefe rights are founded upon the law of nature, or at lead
upon that of nations. But there is a difference between thefe
two fpecies of colonies, with refpecl: to the laws by which
they are bound. For it hath been held l , that if an uninha-
bited country be difcovered and planted by Englifh fubjets,
all the Englifh laws then in being, which are the birth-right
of every fubjecl m , are immediately there in force. But
this mufl be underftood with very many and very great
reflrictions. Such colonifts carry with them only fo much
of the Englifh law, as is applicable to their own fituation
and the condition of an infant colony ; fuch, for inftance, as
the general rules of inheritance, and of protection from per-
fonal injuries. The artificial refinements and diftinftions in-
cident to the property of a great and commercial people, the
laws of police and revenue, (fuch efpecially as are enforced
by penalties,) the mode of maintenance for the eftablifhed
clergy, the jurifdi&ion of fpiritual courts, and a multitude
of other provifions, are neither necefTary nor convenient for
them, and therefore are not in force. What fhall be ad-
mitted and what rejected, at what times, and under what
reflriUons, mufl, in cafe of difpute, be decided in the firft
inftance by their own provincial judicature, fubjet to the re-
vifion and control of the king in council: the whole of their
conflitution being alfo liable to be new-modelled and reform-
ed by the general fuperintending power of the legiflature in
the mother-country. But in conquered or ceded countries,
that have already laws of their own, the king may indeed alter
and change thofe Iaws(i6)j but, till he does actually change
'' Salk. 411. 666. m z P. Wms. 75.
. .
( 16) See an elaborate and learned argument by lord Mansfield,
to prove the king's legislative authority by his prerogative alone
over a ceded conquered country. Coivp. 204.
them
4. the LAWS of ENOLAND. IP;
them the antient laws of the country remain, unlefs fuch as
are againft the law of God, as in the cafe of an infidel coun-
try". Our American plantations are principally of this latter
fort, being obtained in the laft century either by right of con-
queft and driving out the natives (with what natural juftice C
I {hall not at prefent inquire), or by treaties. And therefore
the common law of England, as fuch, has no allowance or
authority there ; they being no part of the mother-country,
but, diftinft (though dependent) dominions. They are fub-
jec~fc, however, to the control of the parliament ; though
(like Ireland, Man, and the reft) not bound by any ats of
parliament, unlefs particularly named.
WITH refpect to their interior polity, our colonies are
properly of three forts. i. Provincial eftabliftiments, the
conftitutions of which depend on the refpe&ive commiflions
iflued by the crown to the governors, and the inftrutions
which ufually accompany thofe commiflions j under the
authority of which, provincial aflemblies are conftituted,
with the power of making local ordinances, not repugnant to
the laws of England. 2. Proprietary governments, granted
out by the crown to individuals, in the nature of feudatory
principalities, with all the inferior regalities, and fubordinate
powers of legiflation, which formerly belonged to the owners
of counties palatine : yet ftill with thefe exprefs conditions,
that the ends for which the grant was made be fubjiantially
purfued, and that nothing be attempted which may derogate
from the fovereignty of the mother-country. 3. Charter
governments, in the nature of civil corporations, with the
power of making bye-laws for their own interior regulation,
not contrary to the laws of England ; and with fuch rights
and authorities as are fpecially given them in their feveral
charters of incorporation. The form of government in moft
of them is borrowed from that of England. They have a
governor named by the king, (or in fome proprietary colo-
nies by the proprietor,) who is his reprefentative or deputy.
n 7 Rep. 17. Calvin's cafe. Show. Parl. C. 31.
They
io8 Of the COUNTRIES fubjeft to INTROD.
They have courts of juftice of their own, from whofe deci-
fions an appeal lies to the king and council here in England.
Their general aflemblies, which are their houfe of commons,
together with their council of Hate, being their upper houfe,
with the concurrence of the king, or his reprefentative the
governor, make laws fuited to their own emergencies. But
it is particularly declared by ftatute 7 & 8 W. IJI. c. 22. that
[ 109 ] all laws, bye-laws, ufages, and cuftoms, which (hall be in
practice in any of the plantations, repugnant to any law
made or to be made in this kingdom relative to the faid
plantation, fhall be utterly void and of none effedt. And,
becaufe feveral of the colonies had claimed a fole and exclu-
five right of impofing taxes upon themfelves, the ftatute
6 Geo. III. c. 12. exprefsly declares, that all his majefty's
colonies and plantations in America have been, are, and of
right ought to be, fubordinate to and dependent upon the
imperial crown and parliament of Great Britain ; who have
full power and authority to make laws and ftatutes of fuffi-
cient validity to bind the colonies and people of America,
fubje&s of the crown of Great Britain, in all cafes whatfo-
ever. And this authority has been fince very forcibly exem-
plified, and carried into aft, by the ftatute 7 Geo. III. c. 59.
for fufpending the legiflation of New- York ; and by feveral
fubfequent ftatutes (17).
THESE are the feveral parts of the dominions of the crown
of Great Britain, in which the municipal laws of England are
(17) By 22 Geo. III. 0.46. hismajefty was empowered to con-
clude a truce or peace with the colonies or plantations in America,
and by his letters patent to fufpend or repeal any afts of parliament
which related to thofe colonies. And by the firft article of the
definitive treaty of peace and friendmip between his Britannic ma-
jefty and the United States of America, figned at Paris the 3d day
of September 1783, his Britannic majefty acknowledges the United
States of America to be free, fovereign and independent ftates.
(Ann. Regift. 1783, State Papers. } And 23 Geo. III. c. 39. gives
his majefty certain powers for the better carrying on trade and
commerce between England and the United States.
not
4 the LAWS of ENGLAND. 109
not of force or authority, merely as the municipal lawsof Eng-
land. Molt of them have probably copied the fpirit of their
own law from this original ; but then it receives its obligation,
and authoritative force, from being the law of the country.
As to any foreign dominions which may belong to the per-
fon of the king by hereditary defcent, by purchafe or other
acquifition, as the territory of Hanover, and his majefty's
other property in Germany ; [as thefe do not in any wife ap-
pertain to the crown of thefe kingdoms, they are entirely
unconneled with the laws of England, and do not communi-
cate with this nation in any refpet whatfoever. The Eng-
lifh legiflature had wifely remarked the inconveniences that
had formerly refulted from dominions on the continent of
Europe j from the Norman territory which William the con-
queror brought with him, and held in conjun&ion with the [ nc
Englifh throne ; and from Anjou, and it's appendages, which
fell to Henry the fecond by hereditary defcent. They had
feen the nation engaged for near four hundred years together
in ruinous wars for defence of thefe foreign dominions ; till,
happily for this country, they were loft under the reign of
Henry the Sixth. They obferved that, from that time, the
maritime interefts of England were better underftood and
more clofely purfued : that, in confequence of this attention,
the nation, as foon as fhe had refted from her civil wars,
began at this period to flourish all at once ; and became much
more confiderable in Europe than when her princes were
poflefied of a larger territory, and her counfels diftradted
by foreign interefts. This experience and thefe confider-
ations gave birth to a conditional claufe in the act of fettle-
ment, which veiled the crown in his prefent majefty's
illuftrious houfe, " that in cafe the crown and imperial dig-
" nity of this realm {hall hereafter come to any perfon not
" being a native of this kingdom of England, this nation mall
" 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 confent of parliament."
Stat. i& 13 Will. III. c.3
WE
i io Of the COUNTRIES fubjefi to INTROD.
WE come now to confider the kingdom of England in par-
ticular, the direct and immediate fubjedt of thofe laws, con-
cerning which we are to treat in the enfuing commentaries.
And this comprehends not only Wales and Berwick, of which
enough has been already faid, but alfo part of the fea. The
main or high feas are part of the realm of England, for
thereon our courts of admiralty have juridifction, as will be
(hewn hereafter ; but they are not fubjeft to the common
law p . This main fea begins at the low-water-mark. But
between the high-water-mark and the low-water-mark,
where the fea ebbs and flows, the common law and the ad-
miralty have divifum imperiutn, and alternate jurifdi&ion ; one
upon the water, when it is full fea ; and the other upon
land, when it is an ebb q .
THE territory of England is liable to two divifions : the
one ecclefiaftical, the other civil.
HI j I. THE ecclefiaftical divifion is, primarily, into two pro-
vinces, thofe of Canterbury and York. A province is the
circuit of an archbifhop's jurifdi&ion. Each province con-
tains divers diocefes, or fees of fuffragan biihops ; whereof
Canterbury includes twenty one, and York three: befides
the bifhoprick of the ifle of Man, which was annexed to the
province of York by king Henry VIII. Every diocefe is
divided into archdeaconries, whereof there are fixty in all ;
each archdeaconry into rural deaneries, which are the circuit
of the archdeacon's and rural dean's jurifdi&ion, of whom
hereafter ; and every deanery is divided into two parifhes r .
A PARISH is that circuit of ground which is committed to
the charge of one parfon, or vicar, or other minifter having
cure of fouls therein. Thefe diftri&s are computed to be
near ten thoufand in number 5 . How antient the divifion
of parifhes is, may at preient be difficult to afcertain ; for
it feems to be agreed on ail hands, that in the early ages
of chriftianity in this ifland, parifhes were unknown, or
P Co. Liu. 260. r Co, Litt. 94.
Finch. L. ;8. s CamdenV Britannhi,
at
4. *fo LAWS of ENGLAND. 1 1 1
at lead fignified the fame that a diocefe does now (18). There
was then no appropriation of ecclefiaftical dues to any parti-
cular church ; but every man was at liberty to contribute his
tithes to whatever prieft or church he pleafed, provided only
that he did it to fome ; or if he made no fpecial appointment
or appropriation thereof, they were paid into the hands of
the bifhop, whofe duty it was to diftribute them among the
clergy, and for other pious purpofgs, according to his own
difcretion*.
MR. CAMDEN U fays, England was divided into parifhes by
archbiftiop Honorius about the year 630. Sir Henry Hobart w
lays it down, that parifhes were firft erefted by the council [
of Lateran, which was held^. D. 1179. Each widely dif-
fering from the other, and both of them perhaps from the
truth ; which will probably be found in the medium between
the two extremes. For Mr. Selden has clearly fhewn x , that
the clergy lived in common without any divifion of parifhes,
long after the time mentioned by Camden. And it appears
from the Saxon laws, that parifhes were in being long before
the date of that council of Lateran, to which they are afcribed
by Hobart.
WE find the diftin&ion of parifhes, nay even of mother-
churches, fo early as in the laws of king Edgar, about the
year 970. Before that time the confecration of tithes was in
general arbitrary ,- that is, every man paid his own (as was
before obferved) to what church or parifh he pleafed. But
this being liable to be attended with either fraud, or at leaft
* Seld. of Tith. 9. 4. a fnft. 646. w Hoh. 296.
Hob. 296. x Of Tithes, c. 9.
u In his Britannia.
(18) When the dioichia, or the diftrift over which the bifhop
exercifed his fpiritual fun&ions, was divided into lefler portions for
the fuperintendence of his clergy, a word of fimilar import was
adopted, paroichla. And in antient times, Mr. Selden thinks, the
words were ufed indifcriminately. Vol. 2. Burn. EC. L. 59.
caprice,
ii2 Of the COUNTRIES fubjeft to INT ROD.
caprice, in the perfons paying ; and with either jealoufies or
mean compliances in fuch as were competitors for receiving
them ; it was now ordered by the law of king Edgar y , that
" dentur omnes decimae pritnariae ecclefiae ad quam parochia per-
" tinet" However, if any thane, or great lord, had a church,
within his own demefnes, diftindt from the mother-church,
in the nature of a private chapel, then, provided fuch church
had a ccemetery or confecrated place of burial belonging to
it, he might allot one-third of his tithes for the maintenance
of the officiating minifter : but, if it had no ccemetery, the
thane muft himfelf have maintained his chaplain by fome
other means ; for in fuch cafe all his tithes were ordained to
be paid to the pritnariae eccleftae or mother-church z .
THIS proves that the kingdom was then generally divided
into parimes ; which divifion happened probably not all at
once, but by degrees. For it feems pretty clear and cer-
tain, that the boundaries of parimes were originally afcer-
tained by thofe of a manor or manors : fince it very feldom
113 ] happens that a manor extends itfelf over more parimes than
one, though there are often many manors in one parim (19).
The lords, as chriftianity fpread itfelf, began to build
churches upon their own demefnes, or wafles, to accommo-
date their tenants in one or two adjoining lordfhips ; and, in
order to have divine fervice regularly performed therein,
obliged all their tenants to appropriate their tithes to the
maintenance of the one officiating minifter, inftead of leaving
them at liberty to diftribute them among the clergy of the
diocefe in general ; and this tra& of land, the tithes whereof
were fo appropriated, formed a diftint parim. Which will
well enough account for the frequent intermixture of parimes
one with another. For if a lord had a parcel of land de-
y Sc-ld. of Tith. c. I. Canute, c. II. about the year 1030.
z Ibid. c.Z. See alfo the laws of king.
(19) But at prefent the boundaries of the one afford no evidence
or inference whatever of the boundaries of the other.
tached
5 4 the LAWS of ENGLAND. 113
lached from the main of his eftate, but not fufficient to form
a parifli of itfelf, it was natural for him to endow his newly
ere&ed church with the tithes of thofe disjointed lands; efpe-
ciaUy if no church was then built in any lordlhip adjoining
Jo thofe out-lying parcels.
THUS parimes were gradually formed, and parim churches
endowed with the tithes that arofe within the circuit afligned.
But fome lands, either becaufe they were in the hands of
irreligious and careless owners, or were fituate in forefts and
defart .places, or for other now unfearchable reafons, were
never united to any parim, and therefore continue to this day
extraparochial ; and their tithes are now by immemorial
cuflom payable to the king inftead of the bifhop, in truft and
confidence that he will diftribute them for the general good
of the church*: yet extraparochial waftes and marm-lands,
when improved and drained, are by the ftatute 1 7 Geo. IL
c. 37. to be aflefied to all parochial rates in the parim next
adjoining. And thus much for the ecclefiaftical divifion of
.his kingdom.
2. THE civil divifion of the territory of England is into [114
Bounties, of thofe counties into hundreds, of thofe hundreds
Into tithings or towns. Which divifion, as it now (lands,
feems to owe its original to king Alfred : who, to prevent the
rapines and diforders which formerly prevailed in the realm,
militated tithings ; fo called from the Saxon, becaufe ten
freeholders with their families compofed one. Thefeall dwelt
together, and were fureties or free pledges to the king for the
good behaviour of each other ; and if any offence was com-
mitted in their diftrift, they were bound to have the offender
forthcoming b . And therefore antiently no man was fuf-
fered to abide in England above forty days, unlefs he were
* 1 Inft. 647. 2 Rep. 44. Cro. " per quam omnei fatu frmijimo fufli-
EHt.51*. nentur : quae hoc modo fcbat, quod
b Flit. \. 47. This the laws of king /* dsctnnali fdejuffivnt drbebant t/e
Edward the confeHbr, c. ao. very juftly " uni-verfi, bV*
infilled, " famma ft maxima ffuritas,
VOL. I. L enrolled
1 14 Of the COUNTRIES fubjett to INTROD.
enrolled in fome tithings or decennary c . One of the principal
inhabitants of the tithing is annually appointed to prefide over
the reft, being called the tithing man, the headborough,
(words which fpeak their own etymology,) and in fome
countries the borfliolder, or borough's ealder, being fuppofed
the difcreeteft man in the borough, town, or tithing d .
TITHINGS, towns, or vills (20), are of the fame fignification
in law ; and are faid to have had, each of them, originally a
church and celebration of divine fervice, facraments, and
-burials e : though that feems to be rather an ecclefiaftical,
than a civil diftinction. The word toivn or vill is indeed,
by the alteration of times and language, now become a ge-
nerical term, comprehending under it the feveral fpecies of
cities, boroughs, and common towns. A city is a town in-
corporated, which is or hath been the fee of a bifhop : and
thouglVthe bifhoprick be diflblved, as at Weftminfter (2 1 ), yet
c Mirr. c.i. 3. c I Inft. IIJ.
" Finch. L. 8.
(20) In the 13 and 14 Car. II. c. 12. which provides, that when
a parifh is fo large that it cannot have the benefit of the overfeers
and provifion for the poor appointed by the 43 Eliz. c. 2., two
overfeers may be appointed for every townfliip or village in fuch
parifh. In this ftatute the words town/lip and -village have always
been thought fynonimous. But it has been held that wherever
there is a conftable there is a townfhip. ( I T. R. 376.) Parifhes
in fome counties, as in part of Bedfordfhire, are divided into tith-
ings. (2*Luderj y 51 1.)
(21) Weftminfter was one of the new bifhopricks created by
Henry VIII. out of the revenues of the diflblved monafteries.
(2 Sum, E. L. 78.) Thomas Thirlby was the only bifhop that ever
filled that fee: (God<w. Com. de Pr&f. 570.) he furrendered the
bifhoprick to Ed. VI. 30 March 1550, and on the fame day it was
diflblved and added again to the bifhoprick of London. ( Rym. Foed.
15 to m.p .222. ) Queen Mary afterwards filled the church with Be-
nediftine monks ; and Eliz., by authority of parliament, turned it into
a collegiate church fubje& to a dean ; but it retained the name of
city,
4- the LAWS of ENGLAND. 114
ftill it remaineth a city f . A borough is now underftood to
be a town, either corporate or not, that fendeth burgefles to
parliament 5 . Other towns there are, to the number, fir
Edward Coke fays h , of 8803, which are neither cities nor
f Co. Litt. 109. h I Inft. 116.
E Litt. 164.
city, not perhaps becaufe it had been a bifhop's fee, but becaufe, in
the letters patent ere&ing it into a bifhoprick, king Henry declared
volumus itaque et per pr&fentes ordinamus quod ecclejia cathedralis et
fedes epifcopalis, ac quod tola villa nojlra Wejlmonajleriifit dvitas, ip-
Jamque civitatem W ejlmonajlerii vocari et nominari volumus et decer-
nlmus. There was a fimilar claufe in favour of the other five new
created cities, viz. Chefter, Peterborough, Oxford, Gloucefter, and
Briftol. The charter for Chefter is in Gibs. Cod. 1449. ; and that for
Oxford in Rym. Foed. 14 torn. 754. Lord Coke feems anxious to
rank Cambridge among the cities, becaufe he finds it called d-vitas
in an antient record, which he " thought it good to mention in re-
" membrance of his love and duty, alms matri academia: Canta-
" brigitt. (Co. Lift, leg.) The late learned Vinerian profeflbr
of Oxford has produced a decifive authority that cities and bifhops'
fees had not originally any neceffary connection with each other.
It is that of Ingulphus, who relates that at the great council
aflembled 1072, to fettle the claim of precedence between the two
archbifhops, it was decreed that bifhops' fees mould be transferred
from towns to cities, (i Woodd. 302.) In Wil. Malm. Scrip, Ang.
p. 14. it is concejfum eft epifcopis de villis tranjire in civitates.
The accidental coincidence of the fame (or nearly the fame)
number of bifhops and cities would naturally produce the fuppo-
fition that they were connefted together as a neceffary caufe and
effect. It is certainly (as Mr. Wooddefon obferves) a ftrong con-
firmation of this authority, that the fame diftin&ion is not paid to
bifhops' fees in Ireland. Mr. Hargrave, in his notes to Co. Litt.
no. proves, that, although Weftminfter is a city, and has fent
citizens to parliament fince the time of Ed. VI., it never was in-
corporated ; and this is a ftriking inftance in contradiction to the
learned opinion there referred to, viz. that the king could not
grant within time of memory to any place the right of fending
members to parliament without firft creating that place a cor-
poration,
L 2 boroughs;
ii4 Of ^ 3e COUNT R i ES fubjefl to INTROD,
boroughs ; fome of which have the privileges of markets, anil
others not j but both are equally towns in law. To feveral
of thefe towns there are fmall appendages belonging, called
i j ( ^ hamlets, which are taken notice of in the ftatute of Exeter j ,
which makes frequent mention of entire vills, demi-vills,
and hamlets. Entire vills fir Henry Spelman * conjectures
to have confided of ten freemen or frank-pledges, demi-vills
of five, and hamlets of lefs than five. Thefe little collec-
tions of houfes are fometimes under the fame adminiftratton
as the town itfelf, fometimes governed by feparate officers ;
in which laft cafe they are, to fome purpofes in law, looked
upon as diftincl: townfhips. Thefe towns, as was before
hinted, contained each originally but one parifh, and one
tithing , though many of them now, by the increafe of inha-
bitants, are divided into feveral parifhes and tithings ; and,
ibmetimee, where there is but one parifh there are two or
more vills or tithings.
As ten families of freeholders made up a town or tithing,
fo ten tithings compofed a fuperior divifion, called a hun-
dred, as confiding of ten times ten families. The hundred
is governed by an high con (table or bailiff, and formerly there
was regularly held in it the hundred court for the trial of
caufes, though now fallen into difufe. In fome of the
more northern counties thefe hundreds are called wapen-
takes 1 (22).
THE fubdivifions of hundreds into tithings feems to be molt
peculiarly the invention of Alfred : the inditution of hun-
1 14 Edw. I. ' Seld. in fertef;. c. 24.
" GlofT. 274.
(22) Et quod Angl'i vacant hundredum, comitatus Torkjbire,
Lincoln/hire, Nottinghatn/irire, Leicefterjblrey et Northampton/hire,
-vacant ivapentacbium. (LI. Edw. c. 33.) And it proceeds to ex-
plain why they are called fo, viz. becaufe the people at a public
meeting confirmed their union with the governor by touching hi*
weapon or lance.
dredc
4. the LAWS of ENGLAND. 115
dreds themfelves he rather introduced than invented. For
they feem to have obtained in Denmark m : and we find that
in France a regulation of this fort was made about two hun-
dred years before ; fet on foot by Clotharius and Childebert,
with a view of obliging each diftrift to anfwer for the rob-
beries committed in its own divifion. Thefe divifions were,
in that country, as well military as civil -, and each contained
a hundred freemen, who were fubjecT: to an officer called the
ctntenarius , a number of which centenani were themfelves
fubjecl: to a fuperior officer called the count or comes". And [ 1 16
indeed fomething like this inftitution of hundreds may be
traced back as far as the antient Germans, from whom were
derived both the Franks who became mailers of Gaul, and
the Saxons who fettled in England : for both the thing and
the name, as a territorial aflemblage of perfons, from which
aftewards the territory itfelf might probably receive it's
denomination, were well known to that warlike people.
* ( Centeni ex Jingu/is pagis funt idque ipfum inter fuos vocantur ;
*' et quod primo numerus fuity jam nomen et honor ejl"
AN indefinite number of thefe hundreds make up a county
or mire. Shire is a Saxon word fignifying a divifion j but a
county, comitatus, is plainly derived from comes t the count
of the Franks ; that is, the earl, or alderman (as the Saxons
called him) of the (hire, to whom the government of it was
intruded. This he ufually exercifed by his deputy, ftill
called in Latin vice-comes^ and in Englifh, the fheriff, fhrieve,
or (hire-reeve, fignifying the officer of the (hire ; upon whom,
by procefs of time, the civil adminiftration of it is now totally
devolved. In fome counties there is an intermediate divi-
fion, between the (hire and the hundreds, as lathes in Kent,
and rapes in Sufiex, each of them containing about three or
four hundreds apiece. Thefe had formerly their lathe-reeves
and rape-reeves, acting in fubordination to the (hire-reeve.
Where a county is divided into three of thefe intermediate
jurisdictions, they are called trithings p , which were an-
ra Sold, tit.of honour, a. 5. 3, Tacit, de morib. German. 6.
f Montefy. Sp, L. 30. 17. P LL. E<ha. e. 34.
L 3 tiently
n6 Of the COUNTRIES fubjett to INTROD.
tiently governed by a tri thing-reeve. Thefe trithings ftill
fubfift in the large county of York, where by an eafy cor-
ruption they are denominated ridings ; the north, the eaft,
and the weft-riding. The number of counties in England
and Wales have been different at different times : at prefent
they are forty in England, and twelve in Wales.
THREE of thefe counties, Chefter, Durham, and Lancaf-
ter, are called counties palatine. The two former are fuch
by prefcription, or immemorial cuftom ; or, at lead, as old
C JI 7 3 as the Norman conqueft q : the latter was created by king
Edward III. in favour of Henry Plantagenet, firft earl and
then duke of Lancafter r ; whole heirefs being married to
John of Gant the king's fon, the franchife was greatly
enlarged and confirmed in parliament % to honour John of
Gant himfelf, whom, on the death of his father-in-law, the
king had alfo created duke of Lancafter l . Counties palatine
are fo called a palatio; becaufe the owners thereof (the earl of
Chefter, the bifhop of Durham, and the duke of Lancafter,)
had in thofe counties jura regalia, as fully as the king hath
in his palace ; regalem poteftatem in omnibus y as Bracton
expreffes it u . They might pardon treafons, murders, and
' felonies : they appointed all judges and juftices of the peace ;
all writs and indictments ran in their names, as in other
counties in the king's ; and all offences were faid to be done
againft their peace} and not, as in other places, contra pacem
domini regis w . And indeed by the antient law, in all peculiar
jurisdictions, offences were faid to be done againft his peace
in whofe court they were tried : in a court-leet, contra pacem
domini ; in the court of a corporation, contra pacem lallivorum;
in the fheriff's court or tourn, contra pacem vice-comitis*.
Thefe palatine privileges (fo fimilar to the regal independent
jurisdictions ufurped by the great barons on the continent,
during the weak and infant ftate of the firft feodal kingdoms
i Seld. tit. hon. a. J. 8. * P a t. 51 Edvu. III. m. 33. Plowd.
r Pat. 25 Edtv. III. f. I. m. 18. 215. 7 Rym.138.
Seld. ibid. Sandford's gen. hift. iia. /. 3. <-. 8. 4.
4 Inft. 104. * 4 Inft. 204.
' Ca,t. 36 Ed-w. III. n.<). * Seld. in King. magn. c. 3.
in
4 ^e LAWS of ENGLAND. 117,
in Europe y ) were in all probability originally granted to the
counties of Chefter and Durham, becaufe they bordered upon
inimical countries, Wales and Scotland ; in order that the
inhabitants, having juftice adminiftered at home, might not
be obliged to go out of the country, and leave it open to the
enemy's incurfions; and that the owners, being encouraged
by fo large an authority, might be the more watchful in it's
defence. And upon this account alfo there were formerly
two other counties palatine, Pembrokefhire and Hexhamfhire ; [ 1 1 8
the latter now united with Northumberland ; but thefe were
abolifhed by parliament, the former in 27 Hen. VIII., the
latter in i4Eliz. And in 27 Hen. VIII., likewife, the
powers before mentioned of owners of counties palatine were
abridged; the reafon for their continuance in a manner ceafing ;
though ftill all writs are witnefied in their names, and all for-
feitures for treafon by the common law accrue to them z .
OF thefe three, the county of Durham is now the only,
one remaining in the hands of aiubject. For the earldom
of Chefter, as Camden teftifies, was united to the crown by
Henry III., and has ever fince given title to the king's eldeft
fon. And the county palatine, or duchy, of Lancafter, was
the property of Henry Bolingbroke, the fon of John of Ganl,
at the time when he wrefted the crown from king Richard II.,
and aflumed the title of king Henry IV. But he was too .
prudent to fuffer this to be united to the crown ; left, if he
loft one, he fhould lofe the other alfo. For, as Plowden a and
fir Edward Coke b obferve, " he knew he had the duchy of
" Lancafter by fure and indefeafible title, but that his title to
" the crown was not fo aflured : for that after the deceafe of
" Richard II., the right of the crown was in the heir of.
" Lionel duke of Clarence, fecond fon of Edward III. j John
" of Gant, father to this Henry IV., being but the fourth
" fon." And therefore he procured an a<St of parliament, in
the firft year of his reign, ordaining that the duchy of Lan-
y Robartfon, Ch.V. i. 60. 215.
z 4 Inft. 305. " 4 Inft. aoj.
L 4 carter,
i 1 8 Of the COUNTRIES fubjeft to INTROD*-
carter, and all other his hereditary eftates, with all their roy-
alties, and franchifes, fliould remam to him and his heirs for
ever; and (hould remain, defcend, be adminiftered, and
governed, in like manner as if he never had attained the regal
dignity ; and thus they defcended to his fon and grandfon,
Henry V. and Henry VI., many new territories and privileges
being annexed to the duchy by the former c . Henry VI. being
attainted in i Edw. IV., this duchy was declared in parlia-
ment to have become forfeited to the crown d , and at the
fame time an aft was made to incorporate the duchy of Lan-
[119] cafter, to continue the county palatine (which might otherwife
have determined by the attainder e ) and to make the fame
parcel of the duchy : and, farther, to veft the whole in king
Edward IV. and his heirs, kings of England, for ever ; but
under a feparate guiding and governance from the other in-
heritances of the crown. And in i Hen. VII. another at
was made, to refume fuch part of the duchy lands as had
been difmembered from it in the reign of Edward IV., and
to veft the inheritance of the whole in the king and his heirs
for ever, as amply and largely, and in like manner, form and
condition, feparate from the crown of England and pofleffion
of the fame, as the three Henries and Edward IV., or any of
them, had and held the fame f .
c Patl.%Hcn. V.n. 30. 3 Hen. V. attainder of the pretended prince of
. 15. Wales. But it istobfervable, that in the
- i Ventr. 155. fame ad the duchy of Cornwall is alfo
Ibid. 157. veiled in king Henry VII. and his heirs ;
f Some have entertained an opinion which could never be intended in any
(Plowd. 220, i, 2. Lamb. Arcbdon, event to be feparated from the inherit-
233. 4 Inft. 206.) thit by this act the ance of the crown. And indeed it
right of the duchy vefted only in the na- feeras to have been underflood very early
tural, and not in the political perfon of after the ftatute of Henry VII., that the
king Henry VII., as formerly in that of duchy of I.ancafter was by no means
Henry IV.; and was defcendable Vo his thereby made a feparate inheritance from
natural heirs, independent of the fuccef- the reft of the royal patrimony; fince it
lion to the crown. And, if this notion defcended with the crown to the half-
were well founded, it might have be- blood in the inftances of queen Mary and
come a very curious queftion at the time queen Elizabeth : which it could not
of the revolution in 1688, in whom the have done, as the eilate of a mere duke
right of the duchy remained after king of Lancafter, in the common courfc oi
James's abdication, 4iiI previous to the legal clefcent. The belter opinion their
fen
4* the LAWS of ENGLAND. 119
THE ifle of Ely is not a county palatine, though fometimes
erroneoufly called fo, but only a royal franchife : the bifhop
having by grant of king Henry the firft,ywro regalia within
the ifle of Ely; whereby he exercifes a jurisdiction over all
caufes, as well criminal as civile (23).
fore fems to be that of thofe judges, Edward IV. ; fepjrate from the other
ulio held (Plowd. an.) that notwith- pofleflions of the crown in order and
(landing the ftatute of Hen. VII. (which government, but united in point of in-
was only an acl of refutnptton) the duchy heritance .
dill remained as eftabliftied by the at of 4
(23) In Pigge v. Gardner, i Lev. 208. it was decided that
the court of the royal franchife of the ifle of Ely was a fuperior
court, and had cognizance of all perfonal a&ions, though the
caufe of the action did not arife within the jurifdiction of the
court. In the fame term afterwards the court of king's bench
held that the court of the bifhop of Durham was alfo a fuperior
court, i Saunders, 73.
In the arguments in the cafe of Grant v. Bagge, 3 Eaft, 128.,
there is a full hiftorical account of the conftitution of the court of
Ely ; but the court, in giving judgment, does not appear to have
adverted to the true fignification of a royal franchife ; for every
franchife muft be prefumed to have its origin from a royal grant,
but a royal franchife is one which has jura regalia t or a palatinate
jurifdiction.
Ely, though frequently called a county palatine, yet could not,
in Uriel: propriety, be denominated one, becaufe the divifion of
counties was more antient than the grant of the jurisdiction,
which was given to a part only of the county of Cambridge.
But before the 27 Hen. VIII. c. 24. the ftatute for recontinuing
liberties of the crown, the bifhop of Ely had all the powers and
authority of a lord of a county palatine, and in that ftatute he is
named before the bifhop of Durham and the archbifhop of York,
the latter claiming the authority of a county palatine, in Hexam-
Ihire, which, by 14 Eliz. c. 14., was made part of the county of
Northumberland. The court of king's bench, in the cafe of
Grant v. Bagge, held, that if a writ in any action was directed
immediately to the chief bailiff of the ifle of Ely, and if he obeyed
the mandate of the writ by executing it within the jurisdiction of
the ifle, he was fubjed to an aftion of trefpafs. Many learned
120 Of the COUNTRIES fubjett to, &c. INTROD.
THERE are alfo counties corporate ; which are certain cities
and towns, fome with more, fome with lefs territory annexed
to them ; to which out of fpecial grace and favour the kings
of England have granted the privilege to be counties of them-
felves, and not to be comprifed in any other county 5 but to
be governed by their own (heriffs and other magiftrates, fo
that no officers of the county at large have any power to in-
termeddle therein. Such are London, York, Briftol, Nor-
wich, Coventry, and many others (24). And thus much of
the countries fubject to the laws of England.
men of the profeflion were of a different opinion, and if it had
been a material objed to the lord or the officers of the franchife,
a writ of error would have been brought.
( 24) 3 Geo. I. c. 5. for the regulation of the office of fheriffs,
enumerates twelve cities, and five towns, which are counties of
themfelves, and which have confequently their own fheriffs. The
cities are, London, Chefter, Briftol, Coventry, Canterbury,
Exeter, Gloucefter, Litchfield, Lincoln, Norwich, Worcefter,
York. The towns are, Kingfton-upon-Hull, Nottingham, New-
caftle-upon-Tyne, Pool, Southampton.
COMMENTARIES
ON THE
LAWS OF ENGLAND.
BOOK THE FIRST.
OF THE RIGHTS OF PERSONS.
CHAPTER THE FIRST.
OF THE ABSOLUTE RIGHTS OF
INDIVIDUALS.
TTHE obje&s of the laws of England are fo very nu-
merous and extenfive, that in order to confider them
with any tolerable eafe and perfpicuity, it will be necefiary
to diftribute them methodically, under proper and diftinft
heads ; avoiding as much as poffible divifions too large and
comprehenfive on the one hand, and too trifling and minute
on the other; both of which are equally productive of con-
fufion.
Now,
i $2 The RIGHTS BOOK I.
Now, as municipal law is a rule of civil conduct:, com-
manding what is right, and prohibiting what is wrong , or
as Cicero *, and after him our Bracton b , have exprefled it,
faticJio jufta, jubens hone/fa et prohibens contraria ; it follows,
that the primary and principal objects of the law are RIGHTS
and WRONGS. In the profecution therefore of thefe com-
mentaries, I (hall follow this very fimple and obvious divi-
fion ; and {hall in the firft place confider the rights that are
commanded, and fecondly the wrongs that are forbidden, by
the laws of England.
RIGHTS are however liable to another fubdivifion ; being
either, firft, thofe which concern and are annexed to the
perfons of men, and are then called jura perfonarum or the
rights of perfons ; or they are, fecondly, fuch as a man may
acquire over external objects, or things unconnected with hi;>
perfon, which are ftyled jura rerum or the rights of things.
Wrongs alfo are divifible into, firft, private wrongs, which,
being an infringement merely of particular rights, concern
individuals only, and are called civil injuries ; and fecondly,
public wrongs, which being a breach of general and public
rights, affect the whole community, and are called crimes
and mifdemefnors.
THE objects of the laws of England falling into this four-
fold divifion, the p'refent commentaries will therefore confift
of the four following parts : i. The rights of perfons ; with
the means whereby fuch rights may be either acquired or
loft : 2. The rights of things : with the means alfo of acquiring
and lofmg them. 3. Private wrongs, or civil injuries ; with
the means of redrefling them by law. 4. Public -wrongs, or
crimes and mifdemefnors ; with the means of prevention and
punifliment (i).
11 Philipp.. k /.i. e. 3.
(i) Thediftinaion between private -wrongs and public wrongs is
more intelligible, and more accurately limited by the nature of the
fubje&s, than the diftinftion between the rights of things, and the
rights of perfons : for all rights whatever mull be the rights of
I 8 certain
Ch. i. of PERSONS. 12.2
WE are now, firft, to confider the rights of perfons ; with
the means of acquiring and lofing them.
Now the rights of perfons that are commanded to be ob- [ 123
ferved by the municipal law are of two forts : firft, fuch as
are due from every citizen, which are ufually called civil
duties ; and, fecondly, fuch as belong to him, which is the
more popular acceptation o'f rights or jura. Both may in-
deed be comprized in this latter divifion , for, as all focial
duties are of a relative nature, at the fame time that they are
due from one man, or fet of men, they mufl alfo be due to
another. But I apprehend it will be more clear and eafy, to
confider many of them as duties required from, rather than
as rights belonging to, particular perfons. Thus, for in-
ftance, allegiance is ufually, and therefore moft eafily, con-
fidered as the duty of the people, and protection as the duty
of the magiflrate ; and yet they are, reciprocally, the rights as
certain perfons to certain things. Every right is annexed to a
certain character or relation, which each individual bears in fociety.
The rights of kings, lords, judges, hufbands, fathers, heirs,
purchafers, and occupants are all dependent upon the refpeftive
characters of the claimants. Thefe rights might again be divided
into rights to poflefs certain things, and the rights to do certain
aftions. This latter clafs of rights conftitute powers and authority.
But the diftin Aion of rights of perfons and rights of things in the
firft two volumes of the Commentaries, feems to have no other
difference than the antithefis of the expreflion, and that too retting
upon a folecifm ; for the expreflion, rights of things, or a right
of a. horfe, is contrary to the idiom of the Englifh language : we
fay, invariably, a right to a thing. The diftin&ion intended by
the learned judge in the firft two volumes appears, in a great
degree, to be that of the rights of perfons in public ftations, and
the rights of perfons in private relations. But as the order of
legal fubjefts is, in a great meafure, arbitrary, and does not admit
of that mathematical arrangement, where one propofition gene-
rates another, it perhaps would be difficult to difcover any method
more fatisfa&ory than that which the learned Judge has purfued,
and which was firft fuggefted by lord C. J. Hale. See Halt's
Analyfis of the Law.
well
123 The RIGHTS BOOK I.
well as duties of each other. Allegiance is the right of the
magiftrate, and protection the right of the people.
PERSONS alfo are divided by the law into either natural
perfons or artificial. Natural perfons are fuch as the God of
nature formed us ; artificial are fuch as are created and de-
vifed by human laws for the purpofes of fociety and govern-
ment, which are called corporations or bodies politic.
THE rights of perfons confidered in their natural capacities
are alfo of two forts, abfolute and relative. Abfolute, which
are fuch as appertain and belong to particular men, merely
as individuals or fingle perfons : relative, which are incident
to them as members of fociety, and Handing in various re-
lations to each other. The firft, that is, abfolute rights, will
be the fubject of the prefent chapter.
BY the abfolute rights of individuals we mean thofe which
are fo in their primary and ftritteft fenfe ; fuch as would
belong to their perfons merely in a ftate of nature, and which
every man is entitled to enjoy, whether out of fociety or in it.
But with regard to the abfolute duties, which man is bound
124 ] to perform, confidered as a mere individual, it is not to be
expected that any human municipal law fhould at all explain
or enforce them. For the end and intent of fuch laws being
only to regulate the behaviour of mankind, as they are mem-
bers of fociety, and ftand in various relations to each other,
they have confequently no concern with any other but focial
or relative duties. Let a man therefore be ever fo aban-
doned in his principles or vicious in his practice, provided
he keeps his wickednefs to himfelf, and does not offend
againft the rules of public decency, he is out of the reach of
human laws. But if he makes his vices public, though they
be fuch as feem principally to affect himfelf, (as drunkennefs,
or the like,) they then become, by the bad example they fet,
of pernicious effects to fociety ; and therefore it is then the
bufinefs of human laws to correct them. Here the circum-
ftance of publication is what alters the nature of the cafe.
1 6 Public
Ch. i. of PERSONS. 124
Public fobriety is a relative duty, and therefore enjoined by
our laws ; private fobriety is an abfolute duty, which, whe-
ther it be performed or not, human tribunals can never
know : and therefore they can never enforce it by any civil
fanclion (2). But with refpet to rights, the cafe is different.
Human laws define and enforce as well thofe rights which
belong to a man confidered as an individual, as thofe which
belong to him confidered as related to others.
FOR the principal aim of fociety is to protect individuals in
the enjoyment of thofe abfolute rights, which were vefted in
them by the immutable laws of nature ; but which could not
be preferred in peace without that mutual affiftance and in-
tercourfe which is gained by the inftitution of friendly and
focial communities. Hence it follows, that the firft and pri-
mary end of human laws is to maintain and regulate thefe
abfolute rights of individuals. Such rights as are focial and
relative refult from, and are pofterior to, the formation of
ftates and focieties : fo that to maintain and regulate thefe, is
clearly a fubfequent confideration. And therefore the prin-
cipal view of human law is, or ought always to be, to ex-
plain, protect, and enforce fuch rights as are abfolute, which
in themfelves are few and fimple ; and then fuch rights as [ 125 ]
are relative, which, arifing from a variety of connexions, will
be far more numerous and more complicated. Thefe will take
up a greater fpace in any code of laws, and hence may ap-
pear to be more attended to, though in reality they are not,
than the rights of the former kind. Let us therefore proceed
( 2 ) This diftin&ion feems to convey a doftrine that can hardly
bear examination, or be reconciled with found law and morality.
The circumftance of publication as evidence of mamelefs profligacy
and hardened depravity, may alter the nature of the punifliment,
but cannot alter the intrinfic criminality of the vicious aft. What-
ever is pernicious to fociety as an example, muft neceffarily be
vicious and deftru&ive in itfelf. What is ruinous and criminal to
repeat and follow, muft alfo be ruinous and criminal to commence.
Human laws prohibit every where the guilty aftion, but punifli-
ment can only be the confequence of detection.
to
125 , The RIGHTS BOOK I.
to examine how far all laws ought, and how far the laws of
England actually do, take notice of thefe abfolute rights, and
provide for their lading fecurity.
THE abfolute rights of man, confidered as a free agent,
endowed with difcernment to know good from evil, and with
power of choofing thofe meafures which appear to him to be
moft defirable, are ufually fummed up in one general appel-
lation, and denominated the natural liberty of mankind.
. This natural liberty confifts properly in a power of adling as
one thinks fit, without any reftraint or controul, unlefs by
the law of nature j being a right inherent in us by birth,
and one of the gifts of God to man at his creation, when he
endued him with the faculty of free-will. But every man,
when he enters into fociety, gives up a part of his natural
liberty as the price of fo valuable a purchafe ; and in con-
fideration of receiving the advantages of mutual commerce,
obliges himfelf to conform to thofe laws, which the commu-
nity has thought proper to eftablifh. And this fpecies of
legal obedience and conformity is infinitely more defirable
than that wild and favage liberty which is facrificed to obtain
it. For no man that confiders a moment would wifh to re-
tain the abfolute and uncontrolled power of doing whatever
he pleafes : the confequence of which is, that every other
man would alfo have the fame power ; and then there would
be no fecurity to individuals in any of the enjoyments of life.
Political therefore, or civil liberty, which is that of a member
of fociety, is no other than natural liberty fo far reftrained
by human laws (and no farther) as is necefiary and expedient
for the general advantage of the public c . Hence we may
collect that the law, which reftrains a man from doing mif-
126 ] chief to his fellow-citizens, though it diminiflies the natural,
increafes the civil liberty of mankind } but that every wanton
and caufelefs reftraint of the will of the fubjeft, whether
pra&ifed by a monarch, a nobility, or a popular aflembly, is
a degree of tyranny : nay, that even laws themfelves, whe-
' fjeullas ejus, qutil cuijue factn lilet t nifi quiJ jure probitttur. Infl. I, 3. I.
ther
Ch. K </PERSONS. 126
ther made with or without our confent, if they regulate and
conftrain our conduct in matters of mere indifference, with-
out any good end in view, are regulations deftructive of li-
berty : whereas, if any public advantage can arife from ob-
ferving fuch precepts, the control of our private inclinations,
in one or two particular points, will conduce to preferve our
general freedom in others of more importance ; by fup-
porting that (late of fociety, which alone can fecure our inde-
pendence. Thus the ftatute of king Edward IV. d , which
forbad the fine gentlemen of thofe times (under the degree
of a lord) to wear pikes upon their fhoes or boots of more
than two inches in length, was a law that favoured of oppref-
fion ; becaufe, however ridiculous the fafhion then in ufe
might appear, the reftraining it by pecuniary penalties could
ferve no purpofe of common utility. But the ftatute of king
Charles II. e , which prefcribes a thing feemingly as indif-
ferent, (a drefs for the dead, who are all ordered to be
buried in woollen,) is a law confident with public liberty ;
for it encourages the ftaple trade, on which in great meafure
depends the univerfal good of the nation. So that laws,
when prudently framed, are by no means fubverfive but
rather introduftive of liberty ; for (as Mr. Locke has well
observed f ) where there is no law there is no freedom. But
then, on the other hand, that conftitution or frame of go-
vernment, that fyftem of laws, is alone calculated to main-
tain civil liberty, which leaves the fubjet entire matter of
his own conduct, except in thofe points wherein the public
good requires fome direction or reftraint (3).
d 3 Edvv. IV. c. 5. f on Gov. p. a. 57.
e 30 Carll. ft. i. c. 3.
(3) This feftion is one of the very few intelligible descriptions
of liberty, which have hitherto been communicated to the world.
Though declamation and eloquence in all ages have exhaufted their
ftores upon this favourite theme, yet reafon has made fo little pro-
grefs in ascertaining the nature and boundaries of liberty, that
there are very few authors indeed, either of this or of any other
country, which can furnifh the tludious and ferious reader with
VOL. I. M a clear
ia6 The RIGHTS BOOK I
THE idea and practice of this political or civil liberty flou-
rifh in their higheil vigour in thefe kingdoms, where it falls
[127 ] little (hort of perfection, and can only be loft or deftroyed by
a clear and confident account of this idol of mankind. Thoufands
worfhip it, and are even ready to offer their blood as a facrifice to
it, under the form of a tree, a cap, or a cockade. Thefe foolifh
fyrobols, with various watchwords of fedition equally unmeaning,
may inflame the paflions of the vulgar for a time, when pra&ifed
upon by all the artifices of defigning and wicked men, and may
fupprefs the voice of reafwn and fobriety, but the confequences are
too terrible to lafl long. Anarchy muft reform itfelf, or in a
country where every crime is committed, and where neither life,
perfon, nor property is fecure, in fuch a war of all againft all, each
individual for his own fake will foon demand a truce, and offer
articles of capitulation.
This fubjeft deferves a difcuflion much more extenfive than the
limits of a note will admit, in which it would not be difficult to
prove that Englifhmen at prefent pofTefs every fpecies of liberty in
a higher degree than ever was enjoyed in any other country, and
even in a degree unknown to their anceftors. But I mall here
briefly fubjoin the different notions conveyed by the word liberty,
which even by the mod eminent writers and orators are generally
confounded together.
The libertas qutdlibet faciendi, or the liberty of doing every thing
which 3 man's paflions urge him to attempt, or his ftrength en-
ables him to effect, is favage ferocity ; it is the liberty of a tiger,
and not the liberty of a man.
" Moral or natural liberty (in the words of Burlamaqni, ch. ,3.
*' f. 15.) is the right which nature gives to all mankind of dif-
" pofing of their perfons and property after the manner they judge
" moft confonant to their happinefs, on condition of their acting
*' within the limits of the law of nature, and that they do not any
*' way abufe it to the prejudice of any other men."
This is frequently confounded, and even by the learned Judge in
this very feftion, with favage liberty.
Civil liberty is well defined by our author to be " that of a
' member of fociety, and is no other than natural liberty fo far re-
*' (trained by human laws (and no farther) as is neceffary and ex-
" pedient for the general advantage of the public."
Mr. P*by
Ch. i. {/PERSONS. 127
the folly or demerits of it's owner ; the legiflature, and of
courfe the laws of England, being peculiarly adapted to the
preservation of this ineftimable blefling even in the meaneft
Mr. Paley begins his excellent chapter upon civil liberty with
the following definition : " Civil liberty is the not being reftrained
" by any law, but what conduces in a greater degree to the
4< public welfare." B. vi. c. 5.
The archbifhop of York has defined " civil or legal liberty to
" be that which confifts in a freedom from all reftraints except
" fuch as eftablifhed law impofes for the good of the community,
" to which the partial good of each individual is obliged to give
" place." (A fermon preached Feb. 21, 1777, p. 19.)
AH thefe three definitions of civil liberty are clear, diftind, and
rational, and it is probable they were intended to convey exaftly
the fame ideas ; but I am inclined to think that the definition
given by the learned Judge is the moft perfeft, as there are many
reftraints by natural law, which, though the eftablifhed law does
not enforce, yet it does not vacate and remove.
In the definition of civil liberty it ought to be understood, or
rather expreffed, that the reftraints introduced by the law mould
be equal to all, or as much fo as the nature of things will admit.
Political liberty may be defined to be the fecurity with which*
from the conftitution, form, and nature of the eftablifhed govern-
ment, the fubje&s enjoy civil liberty. No ideas or definitions are
more diftinguifhable than thofe of civil and political liberty ; yet
they are generally confounded ; and the latter cannot yet claim an
appropriate name. The learned Judge ufes political and civil
liberty indiscriminately ; but it would perhaps be convenient uni-
formly to ufe thofe terms in the refpeftive fenfes here fuggefted,
or to have fome fixed fpecific denominations of ideas, which in
their nature are fo widely different. The laft fpecies of liberty has
probably more than the reft engaged the attention of mankind,
and particularly the people of England. Civil liberty, which is
nothing more than the impartial adminiftration of equal and expe-
dient laws, they have long enjoyed nearly to as great an extent as
can be expected under any human eftablifhment.
But fome who are zealous to perpetuate thefe ineftimable bleffings
of civil liberty, fancy that our political liberty may be augmented
by reforms, or what they deem improvements in the conftitution
M2 of
12; W }e R IGHTS BOOK I;
fubje. Very differently from the modern conftitutions of
other flates on the continent of Europe, and from the genius
of the imperial law ; which in general are calculated to veft an
of the government. Men of fuch opinions and difpofitions there
will be, and perhaps it is to be wifhed that there mould be, in all
times. But before any ferious experiment is made, we ought to
be convinced by little lefs than mathematical demontlration, that
we mail not facrifice fubftance to form, the end to the means, or
exchange prefent pofleflion for future profpe&s. It is true, that
civil liberty may exift in perfection under an abfolute monarch,
according to the well-known verfe :
Fallitur egregie quifquis fub principe credit
Servitium. Nunquam libertas gratior extat
Quamfub rege pio. CLAUD.
But what fecurity can the fubje&s have for the virtues of his fuc-
ceffor ? Civil liberty can only be fecure where the king has no
power to do wrong, yet all the prerogatives to do good. Under
fuch a king, with two houfes of parliament, the people of England
have a firm reliance that they will retain and tranfmit the bleflings
of civil and political liberty to the lateft pofterity.
There is another common notion of liberty, which is nothing
more than a freedom from confinement. This is a part of civil
-liberty, but it being the moft important part, as a man in a gaol
can have the exercife and enjoyment of a few rights, it is xo? E| o^v
called liberty.
But where imprifonment is neceflary for the ends of public
juftice, or the fafety of the community, it is perfectly confident
with civil liberty. For Mr. Paley has well obferved, that " it is
" not the rigour, but the inexpediency of laws and ads of autho-
" rity, which makes them tyrannical." (B. vi. .5.)
This is agreeable to that notion of civil liberty entertained by
Tacitus, one who was well acquainted with the principles of hu-
man nature and human governments, when he fays, Gothones reg-
nantur paulo jam adduflius, quam cxtera Germanorum gentes, nondum
lamenfupra libertatem. De Mor. Germ. c. 43.
It is very furprifing that the learned Commentator mould cite
with approbation (p. 6. and 125.) and that Montefquieu mould
adopt (b. xi. c. 13.) that abfurd definition of liberty given in Juf-
tinian's Inftitutes : Facultas ejus t quad ruique facere libel, ni/i quid
Gh. i. of PERSONS. 127-
arbitrary and defpotic power of controlling the alions of the,
fubject, in the prince, or in a few grandees. And this fpirit
of liberty is fo deeply implanted in our conftitution, and
rooted even in our very foil, that a flave or a negro, the mo-
ment he lands in England, falls under the protection of the
vi, out jure prohibetur. In every country, and under all circum-
ftances, the fubjects poflefs the liberty defcribed by this definition.
When an innocent negro is feized and claimed, or is driven to his
daily toil by a mercilefs matter, he ftill retains this fpecies of liberty,
or that little power of a&ion, of which force and barbarous laws
have not bereft him. But we muft not have recourfe to a fyftem
of laws, in which it is a fundamental principle, quod prtnc'ipi placuit,
legis habet vigorem, for correft notions of liberty.
So far the Editor thought it proper to fuggtft to the ftudent
the different fignifications of the word liberty ; a word which it is
of the utmoft importance to mankind that they mould clearly
comprehend : for though a genuine fpirit of liberty is the nobleft
principle that can animate the heart of man, yet liberty, in all
times, has been the clamour of men of profligate lives and defpe-
rate fortunes : Falfo libertatls oocabulum obtendi ab its, qul privatim
degeneres, in publicum exitiofi, nihtl fpel y riiji per difcordias, habeant;
(Tac. II. Ann. c. 17. ) The firft fentence of Hooker's Eccle-
iiatlical Polity contains no lefs truth and eloquence : " He that
*' goeth about to perfuade a multitude, that they are not fo well
" governed as they ought to be, mall never want attentive and
" favourable hearers."
This fubjeft might be elucidated by various inilances, particularly
from the laws and conftilution of this country ; and the Editor
cannot but cherifh even a confident hope, that they who acquire the
moft intimate acquaintance with thofe laws and that conftitution,
will always be the moft convinced, that to be free, is to live in a
country where the laws aie juft, expedient, and impartially admi-
niftered, and where the fubjefts have perfeft fecurity that they will
ever continue fo ; and, allowing for ome flight and perhaps
inevitable imperfections, that to be free, is to be born and to
live under the Englifh conftitution. Hanc retltiete y qu<sfo, Quirites,
quam vobts, tanquam bereditatem, ma/ores veftri reliquerunt. Cic^
4 Phil.
M 3 laws,
127 The RIGHTS BOOK L
laws, and fo far becomes a free man % ; though the matter's
right to his fervice may poffibly ftill continue (4).
THE abfolute rights of every Englifhman, (which, taken in
a political and extenfive fenfe, are ufually called their liber-
ties,) as they are founded on nature and reafon, fo they are
coeval with our form of government ; though fubjeft at times
to fluctuate and change : their eftablimment (excellent as it
is) being ftill human. At fome times we have feen them de-
prefled by overbearing and tyrannical princes ; at others fo
luxuriant as even to tend to anarchy, a worfe ftate than ty-
ranny itfelf, as any government is better than none at all (5).
But the vigour of our free conftitution has always delivered
the nation from thefe embarraflments : and, as foon as the
convulfions confequent on the ftruggle have been over, the
balance of our rights and liberties has fettled to its proper
level ; and their fundamental articles have been from time to
time aflerted in parliament, as often as they were thought to-
be in danger.
c Salk. 666. See ch. 14.
(4) It is not to the foil or to the air of England that negroes
are indebted for their liberty, but to the efficacy of the writ of
habeas corpus^ which can only be executed by the fheriff in an
Englifti county 1 do not fee how the mailer's right to the fer-
vice can poffibly continue ; it can only arife from a contract, which
the negro in a ftate of flavery is incapable of entering into with his
mafter. See page 425.
( 5 ) Lord Camden concluded his judgment in the cafe of general
warrants in the fame words : " One word more for ourfelves ; we
" are no advocates for libels ; all governments mutt fet their faces
" againft them, and whenever they come before us and a jury, we
" (hall fet our faces againft them; and if juries do not prevent
" them, they may prove fatal to liberty, deftroy government, and
" introduce anarchy ? but tyranny is better than anarchy, and the
" worft government better than none at all." 2 Wilf. 292,
FIRST,
Ch. i. /PERSOKS. 127
FIRST, by the great charter of liberties, which was ob-
tained, fword in hand, from king John, and afterwards, with
fome alterations, confirmed in parliament by king Henry the
third, his fon. Which charter contained very few new-
grants : but, as fir Edward Coke h obferves, was for the mod
part declaratory of the principal grounds of the fundamental
laws of England (6). Afterwards by the ftatute called an- [
firmatio cartarum ', whereby the great charter is directed to be
allowed as the common law ; all judgments contrary to it are
declared void ; copies of it are ordered to be fent to all cathe-
dral churches, and read twice a year to the people ; and fen-
tence of excommunication is directed to be as conftantly
denounced againft all thofe that by word, deed, or counfef,
a& contrary thereto, or in any degree infringe it. Next, by a
multitude of fubfequent corroborating ftatutes, (fir Edward
Coke, I think, reckons thirty-two k ,) from the firft Edward
to Henry the fourth. Then, after a long interval, by the
petition of right ,- which was a parliamentary declaration of
the liberties of the people, aflented to by king Charles the firft
in the beginning of his reign. Which was clofely followed by
the ftill more ample concefiions made by that unhappy prince
to his parliament, before the fatal rupture between them ;
and by the many falutary laws, particularly the habeas corpus
aft, pafled under Charles the fecond. To thefe fucceeded the
bill of rights, or declaration delivered by the lords and com-
mons to the prince and princefs of Orange 13 February i68ff-,
and afterwards enafted in parliament when they became king
and queen : which declaration concludes in thefe remarkable
words ; " and they do claim, demand, and infift upon, all
" and Gngular the premifes, as their undoubted rights and
* liberties." And the al of parliament itfelf 'recognizes
<c all and fingularthe rights and liberties aflerted and claimed
h a Inft. proem. k 1 Inft. pt^em.
1 25 Edw. I. ' i W. & ,VT. ft. a. c. 2.
(6) See a fuller account of Magna Charta, 4 vol. p. 4^4.
M 4 in
128 The RIGHTS BOOK h
" in the faid declaration to be the true, antient, and in-
" dubitable rights of the people of this kingdom." Laftly,
thefe liberties were again aflerted at the commencement of
the prefent century, in the aft of fettlement m , whereby the
crown was limited to his prefent majefty's illuftrious houfe :
and fome new provifions were added, at the fame fortunate
era, for better fecuring our religion, laws, and liberties ;
which the ftatute declares to be the birthright of the peo-
" pie of England," according to the antient dotrine of the
common law ".
[ 129 ] THUS much for the declaration of our rights and liber-
ties. The rights themfelves, thus defined by thefe feveral
ftatutes, confift in a number of private immunities ; which
will appear, from what has been premifed, to be indeed no
other, than either that reftduum of natural liberty, which is
not required by the laws of fociety to be facrificed to public
convenience ; or elfe thofe civil privileges, which fociety hath
engaged to provide, in lieu of the natural liberties fo given
up by individuals. Thefe therefore were formerly, either by
inheritance or purchafe, the rights of all mankind ; but, in
moft other countries of the world being now more or lefs
debafed and deftroyed, they at prefent may be faid to remain,
in a peculiar and emphatical manner, the rights of the peo-
ple of England. And thefe may be reduced to three prin-
cipal or primary articles ; the right of perfonal fecurity, the
right of perfonal liberty, and the right of private property ;
becaufe, as there is no other known method of compulfion,
or of abridging man's natural free will, but by an infringe-
ment or diminution of one or other of thefe important rights,
the preservation of thefe, inviolate, may juftly be faid to
include the prefervation of our civil immunities in their
largeft and moft extenfive fenfe.
I. THE right of perfonal fecurity confifts in a perfon's
legal and uninterrupted enjoyment of his life, his limbs, his
body, his health, and his reputation.
111 i* & 13 W. ill. i. a. Flowd. 55.
i. Ln i
Ch. i. gf PERSONS. 129
i. LIFE is the immediate gift of God, a right inherent by
nature in every individual ; and it begins in contemplation of
law as foon as an infant is able to ftir in the mother's womb.
For if a woman is quick with child, and, by a potion or
otherwife, killeth it in her womb 5 or if any one beat her,
whereby the child dieth in her body, and flie is delivered of
a dead child ; this, though not murder (7), was by the antient
law homicide or manflaughter . But the modern law doth
not look upon this offence in quite fo atrocious a light (8), [130
but merely as a heinous mifdemefnor P.
" Si all juts mulierem fregnantem animatum,facit bomicidium," Brjctoi),
fercufferit, vel ei venenum dcderit, per I. 3. e. 21.
quod fecerit abortivam : ft puerfrtrium p 3 Inft. JO.
jam formatum fuerit, et maxime ft fuerit
( 7 ) The diftin&ion between murder and manflaughter or felo-
nious homicide, in the time of Bra&on, was in a great degree
nominal. The punifhment of both was the fame ; for murder as
well as manflaughter, by the common law, had the benefit of
clergy. Fofl. 302.
(8) But if the child be born alive, and afterwards die in confe-
quence of the potion or beating, it will be murder (3 Injl. 50.
i P. Wms. 245.) ; and of courfe thofe who, with a wicked intent,
adminiftered the potion, or advifed the woman to take it, will be
accefiaries before the faft, and fubjeft to the fame punifhment as
the principal.
And now by the 43 Geo. III. c. 58. if any perfon mail wilfully
and malicioufly adminifter to, or caufe to be adminiftered to, or
taken by, any woman then quick with child any noxious and
deftru&ive fubftance, with intent thereby to procure the mifcarriage
of her child, fuch perfon, and all who counfel, aid, and abet, fhall
be guilty of felony without benefit of clergy.
So it is now punifliable with death to attempt by adminiftering
drugs to deftroy a living infant in venire fa mere, though it may in
no degree be injured.
And by the fame ftatute it is ena&ed, that where any medicines
fhall be fo adminiftered, or any inflrument or other means fhall be
ufed to caufe an abortion, and the woman fhall not be, or fhall not
be proved to be, at the time quick with child, then fuch offenders
fhall be guilty of felony, and fhall be liable to be fined, imprifoned,
18 fet
i jo The RIGHTS BOOK 1.
AN infant in vtntre fa mere, or in the mother's womb, is
fuppofed in law to be born for many purpofes. It is capable
of having a legacy, or a furrender of a copyhold eftate made
to it. It may have a guardian afligned to it q ; and it is
enabled to have an eftate limited to its ufe, and to take
afterwards by fuch limitation, as if it were then actually
born r (9). And in this point the civil law agrees with ours*.
2. A MAN'S limbs (by which for the prefent we only un-
derftand thofe members which may be ufeful to him in fight,
and the lofs of which alone amounts to mayhem by the
common law) are alfo the gift of the wife Creator, to enable
* Stat. 11 Car. II. C. 24. telliguntiir in rcrutn natura ejfc, cum de
r Stat. 10 & II W. 3. c. l6. eorum commodo agatur. Ff. I. 5. 26.
Qui in utcrofunt, injure civili in-
fet in the pillory, or whipped, or to one or more of thefe punifh-
ments ; or to be tranfported for any time not exceeding 1 4 years,
at the difcretion of the court.
The law of England now is not much diflimilar to the Jewifh
law.
If men ftrive and hurt a woman with ehild, fo that her fruit
depart from her, and yet no mifchief follow ; he (hall be furely
punimed, according as the woman's hufband will lay upon him ;
and he (hall pay as the judges determine.
And if any mifchief follow, then thou malt give life for life.
Exod. xxi. v. 22.
(9) It may have a diftributive mare of inteftate property even
with the half blood (i Vef. 81.) : it is capable of taking a devifc
of land (2 Atk. 117. i Freem. 244. 293.) : it takes, under a mar-
riage fettlement, a provifion made for children living at the death of
the father. ( i Ves. 85. ) And it has lately been decided, that mar-
riage and the birth of a poithumous child, amount to a revocation
of a will executed previous ^to the marriage. (5 T. R. 49.) So in
executory devifes it is coniidered as a life in being. ( 7 T. R. too. )
See 2 vol. 174. n. qf It takes land by defcent, though, in that
cafe, the prefumptive heir may enter and receive the profits for his
own ufe till the birth of the child (3 Wilf. 526.), which feems to
be the only interelt it lofeby it'o fituation. See alfo z vol. 169.
him
Ch. i. ^PERSONS. 136
him to protect himfelf from external injuries in a flate of
nature. To thefe therefore he has a natural inherent right ;
and they cannot be wantonly deftroyed or difabled without a
manifeft breach of civil liberty.
BOTH the life and limbs of a man are of fuch high value,
in the eflimation of the law of England, that it pardons even
homicide if committed fe defendendo, or in order to preferve
them. For whatever is done by a man, to fave either life or
member, is looked upon as done upon the higheft neceflity
and compulfion. Therefore if a man through fear of death
or mayhem is prevailed upon to execute a deed, or do any
other legal aft ; thefe, though accompanied with all other
the requifite folemnities, may be afterwards avoided, if
forced upon him by a well-grounded apprehenfion of lofing
his life, or even his limbs, in cafe of his non-compliance *.
And the fame is alfo a fufficient excufe for the commiflion of
many mifdemefnors, as will appear in the fourth book. The
conftraint a man is under in thefe circumftances is called in
law durefs, from the Latin dttrities, of which there are two
forts, durefs of imprisonment, where a man actually lofes his [ 131
liberty, of which we fhall prefently fpeak ; and durefs per
minas, where the hardihip is only threatened and impending,
which is that we are now difcourfing of. Durefs per minas
is either for fear of lofs of life, or elfe for fear of mayhem, or
lofs of limb. And this fear muft be upon fufficient reafon ;
* non," as Bra&on exprefles it, "fufpicio eujujlibet vani et
*' meticuloji hominis, fed tails qui poffit cadere in virum conjlan-
" tern } talis enim debet ejje metus > qui in fe continent vitae peri"
" culum t out carports cruciatum"." A fear of battery, or
being beaten, though never fo well grounded, is no durefs ;
neither is the fear of having one's houfe burned, or one's
goods taken away and deftroyed; becaufe in thefe cafes,
(hould the threat be performed, a man may have fatisfaclion
by recovering equivalent damages" : but no fuitable atone-
ment can be made for the lofs of life, or limb (10). And
f ^ Inft. 483. " /. . .j. w * Inft. 483.
(,io) See 4 vol. 30.
n the
131 The RIGHTS BOOK I.
the indulgence {hewn to a man under this, the principal,
fort of durefs, the fear of lofing his life or limbs, agrees alfo
with that maxim of the civil law ; ignofcitur ei qui fanguinem
fuum qualiter qualiter redemptum voluit*.
THE law not only regards life and member, and protects
every man in the enjoyment of them, but alfo furnifhes him
with every thing neceflary for their fupport. For there is no
man fo indigent or wretched, but he may demand a fupply
fufficient for all the neceffaries of life from the more opulent
part of the community, by means of the feveral ftatutes
enacted for the relief of the poor, of which in their proper
places. A humane provifion ; yet, though dictated by the
principles of fociety, difcountenanced by the Roman laws.
For the edicts of the emperor Conftantine commanding the
public to maintain the children of thofe who were unable to
provide for them, in order to prevent the murder and expo-
fure of infants, an inftitution founded on the fame principle
as our foundling hofpitale, though comprifed in the Theodo-
fian code*, were rejected in Juftinian's collection.
[ 132 ] THESE rights, of life and member, can only be determined
by the death of the perfon j which was formerly accounted
to be either a civil or natural death. The civil death com-
menced, if any man was banifhed or abjured the realm 2 by
the procefs of the common law, or entered into religion ;
that is, went into a monaftery, and became there a monk pro-
fefled : in which cafes he was abfolutely dead in law, and his
next heir mould have his eftate. For fuch banifhed man was
entirely cut off from fociety j and fuch a monk, upon his pro-
feflion, renounced folemnly all fecular concerns ; and befides,
as the popifti clergy claimed an exemption from the duties of
civil life and the commands of the temporal magiftrate, the
genius of the Englifh laws would not fuffer thofe perfons to
enjoy the benefits of fociety, who fecluded themfelves from it,
and refufed to fubmit to it's regulations*. A monk wasrthere-
x Ff. 48. 41. 1. law, /. a. t. 41. deftit effe miUtfeculi, qui
y 1. II. .47. fa&ut eft miles Cbrifi, nee tentftciwn
z Co. Litt. 133. fertinet ad turn gut nan debit gtrcre
This was alfo a rule in the feodal efficium,
fore
Ch. i. of PERSONS. 132
fore accounted civiliter mortuus, and when he entered into re-
ligion might, like other dying men, make his teftament and
executors ; or, if he made none, the ordinary might grant ad-
miniftration to his next of kin, as if he were actually dead in-
tcftate. And fuch executors and adminiftrators had the fame
power, and might bring the fame actions for debts, due to the
religious, and were liable to the fame actions for thofe due
from him, as if he were naturally deceafed b . Nay, fo far has
this principle been carried, that when one was bound in a bond
to an abbot and his fucceflbrs, and afterwards made his exe-
cutors, and profefled himfelf a monk of the fame abbey, and
in procefs of time was himfelf made abbot thereof ; here the
law gave him, in the capacity of abbot, an action of debt
againft his own executors to recover the money due . In (hort,
a monk or religious was fo effectually dead in law, that a leafe
made even to a third perfon, during the life (generally) of one
who afterwards became a monk, determined by fuch his en-
try into religion : for which reafon leafes, and other convey-
ances for life, were ufually made to have and to hold for the
term of one's natural life*. But, even in the times of popery,
the law of England took no cognizance of profeflion in any [ 133
foreign country, becaufe the fact could not be tried in our
courts e ; and therefore, fince the reformation, this difability is
held to be abolifhed f : as is alfo the difability of banifliment,
confequent upon abjuration, by ftatute 21 Jac. I. c. 28. (ir)
6 Litt. 200. e Co. Lilt. 134.
c Co. Litt. 133. f i Salk. i6a.
d 7. Rep. 48. Co. Litt. 131.
( 1 1 ) One fpecies of civil death may ftill exift in this country ;
that is, where a man by act of parliament is attainted of treafon or
felony, and faving his life, is banifhed for ever : this lord Coke
declares to be a civil death. But he fays, a temporary exile is
not a civil death. Co. Litt. 133. And for the fame reafon where
a man receives judgment of death, and afterwards leaves the king-
dom for life, upon a conditional pardon, this feems to amount to
a civil death : this practice did not exift in the time of lord Coke,
who fays, that a man can only lofe his country by authority of
parliament. Ib,
THIS
133 The RIGHTS BOOK!,
THIS natural life, being, as was before obferved, the im-
mediate donation of the great Creator, cannot legally be dif-
pofed of or deftroyed by any individual, neither by the perfoa
himfelf, nor by any other of his fellow-creatures, merely upon
their own authority. Yet neverthelefs it may, by the divine
permifiion, be frequently forfeited for the breach of thofe laws
of fociety, which are enforced by the fanction of capital pu-
nifhments; of the nature, reftrictions, expedience, and le-
gality of which, we may hereafter more conveniently inquire
in the concluding book of thefe commentaries. At prefent, I
(hall only obferve, that whenever the conftitution of a ftate vefts
in any man, or body of men, a power of deftroying at plea-
fure, without the direction of laws, the lives or members of
the fubject, fuch conftitution is in the higheft degree tyran-
nical : and that whenever any laws direct fuch deftruction for
light and trivial caufes, fuch laws are likewife tyrannical,
though in an inferior degree j becaufe here the fubject is
aware of the danger he is expofed to, and may by prudent
caution provide againft it. The ftatute law of England does
therefore very feldom, and the common law does never, in-
flict any punifhment extending to life or limb, unlefs upon the
higheft neceflity (12): and the conftitution is an utter ftranger
to any arbitrary power of killing or maiming the fubject wi'th-
out the exprefs warrant of law. " Nullus liber homo" fays the
great charter g , " aliquo modo deftruatur, ni/i per legale judi-
" cium parium fuorum, aut per legem terrae" Which words,
" aliquo modo deftruatur" according to fir Edward Coke h ,
include a prohibition not only of killing and maiming, but alfo
of torturing (to which our laws are ftrangers), and of every
oppreffion by colour of an illegal authority. And it is
8 c. 29. " a Inft. 48.
(12) This is a compliment which, I fear, the common law
does not deferve ; for although it did not punim with death any
perfon who could read, even for any number of murders or other
felonies, yet it inflifted death upon every felon who could not
read, though his crime was the ftealing only of twelve-pence far-
thing.
enacted
Ch. i. tf PERSONS. 133
enafted by the ftatute 5 Ed. III. c. 9. that no man (hall be
forejudged of life or limb, contrary to the great charter and [ 134 ]
the law of the land : and again, by ftatute 28 Ed. III. c. 3.
that no man fhall be put to death, without being brought to
anfwer by due procefs of law.
3. BESIDES thofe limbs and members that may be necef-
fary to a man, in order to defend himfelf or annoy his ene-
my, the reft of his perfon or body is alfo entitled, by the
fame natural right, to fecurity from the corporal infults of
menaces, aflfaults, beating, and wounding ; though fuch in-
fults amount not to deftru&ion of life or member.
4. THE prefervation of a man's health from fuch practices
as may prejudice or annoy it ; and,
5. THE fecurity of his reputation or good name from the
arts of detraction and flander, are rights to which every man
is entitled, by reafon and natural juftice ; fince without thefe
it is impoflible to have the perfect enjoyment of any other ad-
vantage or right. But thefe three laft articles (being of much
lefs importance than thofe which have gone before, and thofe
which are yet to come) it will fuffice to have barely men-
tioned among the rights of perfons ; referring the more mi-
nute difcuffion of their feveral branches, to thofe parts of our
commentaries which treat of the infringement of thefe rights,
under the head of perfonal wrongs.
II. NEXT to perfonal fecurity, the law of England regards,
afferts, and preferves the perfonal liberty of individuals. This
perfonal liberty confifts jn the power of loco-motion, of
changing fituation, or removing one's perfon to whatsoever
place one's own inclination may direct ; without imprifon-
ment or reftraint, unlefs by due courfe of law. Concerning
which we may make the fame obfervations as upon the pre-
ceding article ; that it is a right ftridtly natural ; that the
laws of England have never abridged it without fufficient
caufe j and, that in this kingdom it cannot ever be abridged
at the mere difcretion of the magiftrate, without the explicit
permiflion
134
The RIGHTS BOOK I.
permifiion of the laws. Here again the language of the great
C .'35 ] charter' is, that no freeman {hall be taken or imprifoned,
but by the lawful judgment of his equals, or by the law of
the land. And many fubfequent old ftatutes * exprefsly di-
rect, that no man fhall be taken or imprifoned by fuggeftion
or petition to the king or his council, unlefs it be by legal
indictment, or the procefs of the common law. By the pe-
tition of right, 3 Car. I., it is enacted, that no freeman (hall
be imprifoned or detained without caufe (hewn, to which he
may make anfwer according to law. By 16 Car. I. c. 10. if
any perfon be reftrained of his liberty by order or decree of
any illegal court, or by command of the king's majefty in
perfon, or by warrant of the council-board, or of any of the
privy council ; he fhall, upon demand of his counfel, have
a writ of habeas corpus^ to bring his body before the court of
king's bench or common pleas ; who fhall determine whether
the caufe of his commitment be juft, and thereupon do as to
juftice fhall appertain. And by 31 Car. II. c. 2. commonly
called the habeas corpus aEt y the methods of obtaining this
writ are fo plainly pointed out and enforced, that, fo long
as this ftatute remains unimpeached, no fubjedt of England
can be long detained in prifon, except in thofe cafes in
which the law requires and juftifies fuch detainer. And,
left this aft fhould be evaded by demanding unreafonable
bail, or fureties for the prifoner's appearance, it is de-
clared by i W. & M. ft. 2. c. 2. that exceflive bail ought
not to be required.
OF great importance to the public is the preservation of this
perfonal liberty : for if once it were left in the power of any,
the higheft, magiftrate to imprifon arbitrarily whomever he or
his officers thought proper, (as in France it is daily pradtifed
by the crown k ,) there would foon be an end of all other rights
' c. 29. tration of Cardinal Fleury, above 54,000
' 5 Edw. II. c. 9. 5 Edw. III. ft. 5. lettret de cadet were iflued, upon the
C. 4. 28 Edw. HI. c. 3. fingle ground of the famous bull /-
k I have been aflured upon good au- gcnitus. -
ihority, that, during the mild admintf-
and
Ch. i. 0f PERSONS. 135
and immunities. Some have thought, that unjuft attacks,
even upon life, or property, at the arbitrary will of the magif-
trate, are lefs dangerous to the commonwealth than fuch as [ 136 ]
are made upon the perfonal liberty of the fubjedt. To be-
reave a man of life, or by violence to confifcate his eftate,
without accufation or trial, would be fo grofs and notorious
an aft of defpotifm, as muft at once convey the alarm of
tyranny throughout the whole kingdom : but confinement of
the perfon, by fecretly hurrying him to gaol, where his fuf-
ferings are unknown or forgotten, is a lefs public, a lefs
ftriking, and therefore a more dangerous engine of arbitrary
government. And yet fometimes, when the ftate is in real
danger, even this may be a neceffary meafure. But the hap-
pinefs of our conftitution is, that it is not left to the execu-
tive power to determine when the danger of the ftate is fo
great, as to render this meafure expedient : for it is the par-
liament only, or legiflative power, that, whenever it fees pro-
per, can authorize the crown, by fufpending the habeas corpus
at for a fhort and limited time, to imprifon fufpecled per-
fons without giving any reafon for fo doing ; as the fenate of
Rome was wont to have recourfe to a dictator, a magiftrate
of abfolute authority, when they judged the republic in any
imminent danger. The decree of the fenate, which ufually
preceded the nomination of this magiftrate, " dent operam
" conful(S) ne quid refpublica detrimenti capiat" was called the
fenatus confultum ultimae necejjitatis. In like manner this ex-
periment ought only to be tried in cafes of extreme emer-
gency ; and in thefe the nation parts with its liberty for a
while, in order to preferve it for ever.
THE confinement of the perfon, in any wife, is an impri-
fonment. So that the keeping a man againft his will in a
private houfe, putting him in the flocks, arrefting or for-
cibly detaining him in the ftreet, is an imprifonment 1 . And
the law fo much difcourages unlawful confinement, that if a
man is under durefs of 'imprifonment , which we before explained
to mean a compulfion by an illegal reftraint of liberty, until
1 alnft.589-
VOL. I. N he
1 3$ The RIGHTS BOOK I.
he feals a bond or the like; he may allege this durefs,
and avoid the extorted bond. But if a man be lawfully im-
f 137 ~\ P r ^ onet ^> an ^ e i tner to procure his difcharge, or on any other
fair account, feals a bond or a deed, this is not by durefs of
imprifonment, and he is not at liberty to avoid it m . To make
imprifonment lawful, it muft either be by procefs from the
courts of judicature, or by warrant from fome legal officer
having authority to commit to prifon ; which warrant muft
be in writing, under the hand and feal of the magiftrate,
and exprefs the caufes of the commitment in order to be
examined into (if necefiary) upon a habeas corpus. If there
be no caufe exprefled, the gaoler is not bound to detain the
prifoner". For the law judges in this refpedt, faith fir
Edward Coke, like Feftus the Roman governor ; that it is
unreafonable to fend a prifoner, and not to fignify withal
the crimes alleged againft him.
A NATURAL and regular confequence of this perfonal
liberty is, that every Englishman may claim a right to abide
in his own country fo long as he pleafes ; and not to be
driven from it unlefs by the fentence of the law. The king
indeed, by his royal prerogative, may iflue out his writ tie exeat
regno (13), and prohibit any of his fubjets from going into
foreign parts without licence . This may be neceflary for
the public fervice and fafeguard of the commonwealth. But
no power on earth, except the authority of parliament, can
fend any fubjecl: of England out of the land againft his will ;
no, not even a criminal. For exile, and tranfportation, are
punifhments at prefent unknown to the common law ; and,
whenever the latter is now infli&ed, it is either by the choice
of the criminal himfelf to efcape a capital punifhment, or elfe
by the exprefs direction of fome modern act of parliament (14).
m 2 Inft. 482. n Ibid. 52, 53. F. N. B. 85.
(13) See p. 266.
( 14 It is faid that exile was firtl introduced as a punifhment by
the legiflature in the 39th year of Eliz. when a ftatute enaded that
" fuch
Ch. i. 2fPfjippN$, 137
To this purpofe the great charter p declares, that no freeman
(hall be banifhed, unlefs by the judgment of his peers, or by the
law of the land. And by the habeas corpus ad, 3 1 Car. II. c. 2.
(that fecond magna carta, and ftable bulwark of our liberties)
it is enacted, that no fubjeft of this realm, who is an inhabi-
tant of England, Wales, or Berwick, mail be fent prifoner into
Scotland, Ireland, Jerfey, Guernfey, or places beyond the
feas ; (where they cannot have the full benefit and protec- [
tion of the common law ;) but that all fuch imprifonments
mall be illegal j that the perfon who mall dare to commit
another contrary to this law, (hall be difabled from bearing
any office, mall incur the penalty of a praemunire, and be in-
capable of receiving the king's pardon : and the party fuffer-
ing mall alfo have his private ation againft the perfon com-
mitting, and all his aiders, advifers, and abettors, and mail
recover treble cofts ; befides his damages, which no jury
(hall affefs at lefs than five hundred pounds.
THE law is in this refpedl: fo benignly and liberally con-
ftrued for the benefit of the fubjecT:, that, though -within the
p c. 29.
" fuch rogues as were dangerous to the inferior people fhould be
" banifhed the realm ;" (39 Eliz. c. 4. See Barr. Ant. Stat. 269.)
and that the firft ftatute in which the word tranfportation is ufed is
the 1 8 C. II. c. 3. which gives a power to the judges at their dif-
cretion either to execute or tranfport to America for life the Mofs-
troopers of Cumberland and Northumberland, (2 Woodd. 498.)
a law which very unneceflarily was continued till the 31 Geo. II.
c. 42. and then made perpetual. This perhaps is the only inftance
in which the legiflature has extended the term of tranfportation be-
yond fourteen years. But to perfons capitally convi&ed the king
frequently offers a pardon upon condition of their being tranfported
for life. Many have at firft rejected this gracious offer, and there
have been one or two inftances of perfons fo defperate as to perfift
in the refufal, and who in confequence fuffered the execution of
their fentence. Where a pardon is granted upon condition of
tranfportation, and no term is fpecified, in that cafe the offender
fliall be tranfported for 14 years. 4 Geo. I. c. 1 1.
N 2 realm.
138 The RIGHTS BOOK L
realm the king may command the attendance and fervice of
all his liegemen, yet he cannot fend any man out of the
realm, even upon the public fervice ; excepting failors and
foldiers, the nature of whofe employment neceflarily implies
an exception : he cannot even conftitute a man lord deputy
or lieutenant of Ireland againft his will, nor make him a fo-
reign ambaflador \ For this might in reality be no more
than an honourable exile.
III. THE third abfolute right, inherent in every Englim-
man, is that of property : which confifts in the free ufe, en-
joyment, and difpofal of all his acquifitions, without any con-
trol or diminution, fave only by the laws of the land. The
original of private property is probably founded in nature, as
will be more fully explained in the fecond book of the enfuing
commentaries : but certainly the modifications under which
we at prefent find it, the method of conferving it in the pre-
fent owner, and of tranflating it from man to man, are en-
tirely derived from fociety ; and are fome of thofe civil ad-
vantages, in exchange for which every individual has refigned
a part of his natural liberty. The laws of England are there-
fore, in point of honour and juftice, extremely watchful in
ascertaining and protecting this right. Upon this principle the
great charter r has declared that no freeman fhall be difleifed,
or divefted, of his freehold, or of his liberties, or free cuf-
toms, but by the judgment of his peers, or by the law of the
[ 139 ] land. And by a variety of antient ftatutes 8 it is enacted,
that no man's lands or goods fhall be feifed into the king's
hands, againft the great charter, and the law of the land ;
and that no man (hall be difinherited, nor put out of his
franchifes or freehold, ulefs he be duly brought to anfwer,
and be forejudged by courfe of law ; and if any thing be done
to the contrary, it (hall be redrefled, and holden for none.
So great moreover is the regard of the law for private
property, that it will not authorize the leaft violation of
it j no, not even for the general good of the whole com-
a Inft. 46. 5 Edw. HI. c. 9. aj Edw. III. ft. 5.
r c.9. C.4. *8 Edw, III. c.J.
munity,
Ch. i. gf PERSONS. 139
munity. If a new road, for inftance, were to be made
through the grounds of a private perfon, it might perhaps
be extenfively beneficial to the public ; but the law permits
no man, or fet of men, to do this without confent of the
owner of the land. In vain may it be urged, that the good
of the individual ought to yield to that of the community ;
for it would be dangerous to allow any private man, or even
any public tribunal, to be the judge of this common good,
and to decide whether it be expedient or no. Befides, the
public good is in nothing more eflentially interefted, than in
the protection of every individual's private rights, as model-
led by the municipal law. In this and fimilar cafes the legif-
lature alone can, and indeed frequently does, interpofe, and
compel the individual to acquiefce. But how does it inter-
pofe and compel ? Not by abfolutely dripping the fubjedl of
his property in an arbitrary manner ; but by giving him a full
indemnification and equivalent for the injury thereby fuf-
tained. The public is now confidered as an individual,
treating with an individual for an exchange. All that the
legiflature does, is to oblige the owner to alienate his poflef-
fions for a reafonable price ; and even this is an exertion of
power, which the legiflature indulges with caution, and
which nothing but the legiflature can perform (15).
(15) But by the laft highway aft (13 Geo. III. c. 78.) two
juftices may either widen or divert any highway through or over
any perfon's foil, even without his confent, fo that the new way (hall
not be more than thirty feet wide, and that they pull down no
building, nor take away the ground of any garden, park, or yard.
But the furveyor {hall offer the owner of the foil, over which the
new way is carried, a. reafonable compenfation, which if he refufes
to accept, the juftices mall certify their proceedings to fome ge-
neral quarter feffions; and the furveyor (hall give fourteen days' no-
tice to the owner of s the foil of an intention to apply to the feffions ;
and the juftices of the feffions mail impanel a jury, who (hall aflefs
the damages which the owner of the foil has fuftained, provided
that they do not amount to more than forty years' purchafe. And
the owner of the foil mall ftill be entitled to all the mines within
the foil, which can be got without breaking the furface of the
highway.
N 3 NOR
140 The RIGHTS Booit I.
NOR is this the only inftance in which the law of the land
has poftponed even public neceffity to the facred and invio-
lable rights of private property. For no fubjeft of Englarid
can be conftrained to pay any aids or taxes, even for the de-
fence of the realm or the fupport of government, but fuch as
are impofed by his own confent, or that of his reprefent-
atives in parliament. By the ftatute 25 Edw. I. c. 5. and 6.
it is provided, that the king fhall not take any aids or tafks,
but by the common aflent of the realm. And what that
common aflent is, is more fully explained by 34 Edw. I. ft. 4.
c.i. which * enacts, that no talliage or aid fhall be taken
without the aflent of the archbifhops, bifhops, earls, barons,
knights, burgefles, and other freemen of the land : and again,
by 14 Edw. III. ft. 2. c.i. the prelates, earls, barons, and
commons, citizens, burgefles, and merchants fhall not be
charged to make any aid, if it be not by the common aflent
of the great men and commons in parliament. And as this
fundamental law had been fhamefully evaded under many
fucceeding princes, by compulfive loans, and benevolences
extorted without a real and voluntary confent, it was made
an article in the petition of right 3 Car. I., that no man fhall
be compelled to yield any gift, loan, or benevolence, tax, or
fuch like charge, without common confent by at of parlia-
ment. And laftly, by the ftatute i W. & M. ft. 2. c. 2.
it is declared, that levying money for or to the ufe of the
crown, by pretence of prerogative, without grant of parlia-
ment ; or for longer time, or in other manner, than the fame
is or fhall be granted ; is illegal.
IN the three preceding articles we have taken a fhort view
of the principal abfolute rights which appertain to every Eng-
lifhman. But in vain would thefe rights be declared, af-
certained, and protected by the dead letter of the laws, if the
141 1 conftitution had provided no other method to fecure their
* See the introduftion to the great nothing more than a fort of tranflation
Charted, (edit, Oxon.) fub anno 1297 ; into Latin of the confirmatio cartarum,
wherein it is (hewn that this ftatute de 25 Edw. I., which was originally pub-
talliagio nan concedendo, fuppofed to lifhed in the Norman language,
have been made in 34 Edw. I., is in reality
Ch. i. of PERSONS. 141
actual enjoyment. It has therefore eftablifhed certain other
auxiliary fubordinate rights of the fubjedt, which ferve prin-
cipally as outworks or barriers, to protect and maintain in-
violate the three great and primary rights, of perfonal fecu-
rity, perfonal liberty, and private property. Thefe are,
1 . THE conftitution, powers, and privileges of parliament,
of which I fhall treat at large in the enfuing chapter.
2. THE limitation of the king's prerogative, by bounds, fo
certain and notorious, that it is impoffible he fhould either
miftake or legally exceed them without the confent of the
people. Of this alfo I (hall treat in it's proper place. The
former of thefe keeps the legiflative power in due health and
vigour, fo as to make it improbable that laws ftiould be en-
acted deftructive of general liberty : the latter is a guard upon
the executive power, by reftraining it from acting either
beyond or in contradiction to the laws, that are framed and
eftablifhed by the other.
3. A THIRD fubordinate right of every Englifhman is that
of applying to the courts of juftice for redrefs of injuries.
Since the law is in England the fupreme arbiter of every man's
life, liberty, and property, courts of juftice muft at all times
be open to the fubject, and the law be duly adminiftered
therein. The emphatical words of magna cart a u , fpoken in
the perfon of the king, who in judgment of law (fays fir Ed-
ward Coke w ) is ever prefent and repeating them in all his
courts, are thefe , nulli vendemus, nulli negabimusy out differe-
mus reflum vel jujlitiam : " and therefore every fubject," con-
tinues the fame learned author, " for injury done to him in
" bonisy in terris y vel perfona, by any other fubject, be he
" ecclefiaftical or temporal, without any exception, may take
" his remedy by the courfe of the law, and have juftice and
" right for the injury done to him, freely without fale, fully
" without any denial, and fpeedily without delay." It were
endlefs to enumerate all the affirmative acts of parliament,
" c.a 9 . alnft.jj.
N 4 wherein
142 The RIGHTS BOOK L
wherein juftice is dire&ed to be done according to the law of
the land : and what that law is, every fubjeft knows, or may
know if he pleafes ; for it depends not upon the arbitrary
will of any judge, but is permanent, fixed, and unchangeable
unlefs by authority of parliament. I fhall however juft men-
tion a few negative ftatutes, whereby abufes, perverfions, or
delays of juftice, efpecially by the prerogative, are reftrained.
It is ordained by magna carta x , that no freeman (hall be out-
lawed, that is, put out of the protection and benefit of the
laws, but according to the law of the land. By 2 Edw. III.
c. 8. and n Ric. II. c. 10. it is enacted, that no commands
or letters (hall be fent under the great feal, or the little feal,
the fignet, or privy feal, in difturbance of the law j or to
difturb or delay common right ; and, though fuch command-
ments (hould come, the judges fhall not ceafe to do right ;
which is alfo made a part of their oath by ftatute 18 Ed. III.
ft. 4. And by i W. & M. ft. 2. c. 2. it is declared, that the
pretended power of fufpending, or difpenfing with laws, or
the execution of laws, by regal authority, without confent of
parliament, is illegal.
NOT only the fubftantial part, or judicial decifions, of the
law, but alfo the formal part or method of proceeding, can-
not be altered but by parliament : for, if once thofe outworks
were demolifhed, there would be an inlet to all manner of in-
novation in the body of the law itfelf. The king, it is true,
may erecl: new courts of juftice ; but then they muft proceed
according to the old eftablifhed forms of the common law. For
which reafon it is declared in the ftatute 1 6 Car. I. c. 10.
upon the diflblution of the court of ftarchamber, that neither
his majefty, nor his privy council, have any jurifdi&ion,
power, or authority by Englifh bill, petition, articles, libel,
(which were the courfe of proceeding in the ftarchamber,
borrowed from the civil law,) or by any other arbitrary way
whatfoever, to examine, or draw into queftion, determine, or
difpofe of the lands or goods of any fubjefts of this kingdom j
* c. 39.
but
Ch.i. 0/ 1 PERSONS. 142
but that the fame ought to be tried and determined in the
ordinary courts of juftice, and by courfe of law.
4. IF there (hould happen any uncommon injury, or in- [ 143 1
fringement of the rights before mentioned, which the ordi-
nary courfe of law is too defective to reach, there ftill re-
mains a fourth t fubordinate right, appertaining to every indi-
vidual, namely, the right of petitioning the king, or either
houfe of parliament, for the redrefs of grievances. In Ruffia
we are told y that the czar Peter eftablifhed a law, that no
fubjedt might petition the throne, till he had firft petitioned
two different minifters of ftate. In cafe he obtained juftice
from neither, he might then prefent a third petition to the
prince; but upon pain of death if found to be in the wrong.
The confequence of which was, that no one dared to offer
fuch third petition ; and grievances feldom falling under the
notice of the fovereign, he had little opportunity to redrefs
them. The reftridions, for fome there are, which are laid
upon petitioning in England, are of a nature extremely dif-
ferent ; and while they promote the fpirit of peace, they are
no check upon that of liberty. Care only muft be taken, left,
under the pretence of petitioning, the fubject be guilty of any
riot or tumult ; as happened in the opening of the memorable
parliament in 1640 : and, to prevent this, it is provided by
the ftatute 13 Car. II. ft. i. c. 5. that no petition to the King,
or either houfe of parliament, for any alteration in church
or ftate, {hall be figned by above twenty perfons, unlefs the
matter thereof be approved by three juftices of the peace, or
the major part of the grand jury (16), in the country ; and
in London by the lord mayor, aldermen, and common coun-
r Montefq. Sp. L. xii. a6.
( 1 6) Either at the affizes or quarter feffions. The punifliment
for offending againft this aft not to exceed a fine of ioo/. and im-
prifonment for three months. Upon the trial of lord George
Gordon, lord Mansfield and the court declared, that they were
clearly of opinion that this ftatiite was not in any degree affected
by the bill of rights, i W. fc? M . Jl. 2. c. 2. Doug. 571 .
cil;
143 The RIGHTS BOOK I.
cil : nor (hall any petition be prefented by more than ten per-
fons at a time. But, under thefe regulations, it is declared
by the ftatute i W. & M. ft. 2. c. 2. that the fubject hath a
right to petition ; and that all commitments and profecutions
for fuch petitioning are illegal.
5. THE fifth and laft auxiliary right of the fubject, that I
(hall at prefent mention, is that of having arms for their de-
fence, fuitable to their condition and degree, and fuch as are
144 ] allowed by law. Which is alfo declared by the fame ftatute
i W. & M. ft. 2. c. 2. and it is indeed a public allowance
under due reftrictions, of the natural right of refiftance and
felf-prefervation, when the fanctions of fociety and laws are
found inefficient to reftrain the violence of oppreflion.
IN thefe feveral articles confift the rights, or, as they are
frequently termed, the liberties of Engliflimen : liberties,
more generally talked of than thoroughly underftood ; and
yet highly neceflary to be perfectly known and confidered by
every man of rank or property, left his ignorance of the
points whereon they are founded mould hurry him into fac-
tion and licentioufnefs on the one hand, or a pufillanimous
indifference and criminal fubmiflion on the other. And we
have feen that thefe rights confift, primarily, in the free en-
joyment of perfonal fecurity, of perfonal liberty, and of pri-
vate property. So long as thefe remain inviolate, the fubject
is perfectly free ; for every fpecies of compulfive tyranny
and oppreffion muft act in oppofition to one or other of thefe
rights, having no other object upon which it can^poflibly be
employed. To preferve thefe from violation, it is neceflary
that the conftitution of parliament be fupported in it's full
vigour j and limits, certainly known, be fet to the royal pre-
rogative. And, laftly, to vindicate thefe rights, when actually
violated or attacked, the fubjects of England are entitled,
in the firft place, to the regular adminiftration and free
eourfe of juftice in the courts of law ; next, to the right of
petitioning the king and parliament for redrefs of grievances ;
and, laftly, to the right of having and ufmg arms for felf-
preferv-
Ch.i. of PERSONS. 144
prefervation and defence. And all thefe rights and liberties
it is our birthright to enjoy entire -, unlefs where the laws of
our country have laid them under neceflary reftraints
Reftraints in themfelves fo gentle and moderate, as will appear
upon farther inquiry, that no man of fenfe or probity would
wifh to fee them flackened. For all of us have it in our
choice to do every thing that a good man would defire to do ;
and are reftrained from nothing, but what would be perni-
cious either to ourfelves or our fellow-citizens. So that this
review of our fituation may fully juftify the obfervation of a [
learned French author, who indeed generally both thought
and wrote in the fpirit of genuine freedom 2 ; and who hath
not fcrupled to profefs, even in the very bofom of his native
country, that the Englifh is the only nation in the world
where political or civil liberty is the direct end of it's con-
ftitution. Recommending therefore to the ftudents in our
laws a farther and more accurate fearch into this extenfive
and important title, I fhall clofe my remarks upon it with
the expiring wifli of the famous father Paul to his country,
" ESTO PERPETUA !"
z Montefq. Sp. L. xi. 5.
146 The RIGHTS BOOK L
CHAPTER THE SECOND.
OF THE PARLIAMENT.
TT7E are next to treat of the rights and duties of perfons,
as they are members of fociety, and ftand in various
relations to each other. Thefe relations are either public or
private : and we will firft confider thofe that are public.
THE mod univerfal public relation, by which men are
connected together, is that of government j namely, as
governors and governed, or, in other ^words, as magiftrates
and people. Of magiftrates fome alfo are fupretne, in whom
the fovereign power of the ftate refides; others mefubordinate,
deriving all their authority from the fupreme magiftrate,
accountable to him for their conduct, and acting in an inferior
fecondary fphere.
IN all tyrannical governments the fupreme magiftracy, or
the right both of making and of enforcing the laws, is vefted
in one and the fame man, or one and the fame body of men ;
and wherever thefe two powers are united together, there can
be no public liberty. The magiftrate may enact tyrannical
laws, and execute them in a tyrannical manner, fince he is
poflefled, in quality of difpenfer of juftice, with all the power
which he as legiflator thinks proper to give himfelf. But,
where the legiflative and executive authority are in diftinct
hands, the former will take care not to entruft the latter with
fo large a power as may tend to the fubverfion of it's own
independence, and therewith of the liberty of the fubjcct.
With us therefore in England this fupreme power is divided
into
Ch.2. of PERSONS. 147
into two branches; the one legiflative, to wit, the parliament,
confiding of king, lords, and commons ; the other executive,
confifting of the king alone. It will be the bufinefs of this
chapter to confider the Britifh parliament ; in which the
legiflative power, and (of courfe) the fupreme and abfolute
authority of the ftate, is vefted by our.conftitution.
THE original or firft inftitution of parliament is one of
thofe matters which lie fo far hidden in the dark ages of
antiquity, that the tracing of it out is a thing equally difficult
and uncertain. The word, parliament, itfelf, (parlement or
colloquium, as fome of our hiftorians tranflate it,) is compara-
tively of modern date ; derived from the French, and fignify-
ing an aflembly that met and conferred together. It was firft
applied to general aflemblies of the ftates under Louis VII.
in France, about the middle of the twelfth century* (i). But
Mod. Un. Hift. xiiii. 307. The the preamble to the ftatute of Weftm. i.
firft mention of it in our ftatute kw is in 3 Edw. I. A. D. \^^^.
( I ) The word parliamentum was not ufed in England till the
reign of Hen. III. (Pryn. on 4 Inft. 2.) Sir Henry Spelmaninhis
Gloffary (voc. Parl.) fays, Joannes rex hand dicam parliamentum,
nam hoc nomen non turn emicuit, fed communis concilii regni formam
et coaSionem perfpicuam dedlt.
It was from the ufe of the word parliamentum that Prynne dif-
covered lord Coke's manufcript, Modus tenendi parliamentum tempore
regis Edwardiiflii regis Etheldredi, &c. to be fpurious. Lord Coke
fet a high value upon it, and has affured us, " that certain it is,
" this modus was rehearfed and declared before the conqueror at the
" conqueft, and by him approved." (4 Injl. 12.) But for many
reigns after this word was introduced, it was indifcriminately ap-
plied to a feffion and to the duration of the writ of fummons ; we
now confine it to the latter, viz. to the period between the meeting
after the return of the writ of fummons and the diffolution. Ety-
mology is not always frivolous pedantry ; it fometimes may afford
an ufeful comment upon the original fignification of a word. No
inconfiderable pains have been beftowed by learned men in analyfing
the word parliament ; though the following fpecimens will ferve
rather to amufe than to inftrud : " The word parliament," faith
one,
i 4 ; The RlGHTS BooK !
it is certain that, long before the introduction of the Norman
language into England, all matters of importance were
debated and fettled in the great councils of the realm. A
practice, which feems to have been univerfal among the
northern nations, particularly the Germans b - t and carried
b De minaribut rtbut principct eonfultaut, de majoribus omnet. Tac. de mar.
Germ. c. II.
one, " is compounded of parium lamentum ; becaufe (as he thinks)
" the peers of the realm did at thefe aflemblies lament and com-
" plain each to the other of the enormities of the country, and
" thereupon provided redrefs for the fame." (Lamb. Arch. 235.)
Whitelocke, in his notes (174.) declares, " that this derivation of
" parliament is a fad etymology." Lord Coke and many others
fay, that, " it is called parliament, becaufe every member of that
" court fhould fincerely and difcreetly parler la ment, fpeak his mind
" for the general good of the commonwealth." (Co. Lit. no.)
Mr. Lambard informs us, that " Lawrence Vallo mifliketh this
" derivation." ( Arch. 236. ) And Lawrence Vallo is not fingular ;
for Mr. Harrington aflures us, that " lord Coke's etymology of the
** word parliament from fpeaking one's mind has been long ex-
" ploded. If one might prefume (adds he) to fubftitute another
" in it's room after fo many guefles by others, I mould fuppofe
" it was a compound of the two Celtic words parley and ment, or
" mend. Both thefe words are to be found in Bullet's Celtic Dic-
" tionary publiflied at Befancon in 1754. 3d vol. fol. He renders
"parley by the French infinitive parler ; and we ufe the word in
" England as a fubftantive, viz. parley ; ment or mend is rendered
" quantlte, abondance. The word parliament therefore being re-
" folved into its conftituent fyllables, may not improperly be faid
" to fignify what the Indians of North America call a Great
Talk." (Ant. Stat. 48. ) I fhall leave it to -the reader to de-
termine which of thefe derivations is moft defcriptive of a parlia-
ment ; and perhaps after fo much recondite learning it may ap-
pear prefumptuous in me to obferve, that parliament imported
originally nothing more than a council or conference ; and that
ment in parliament has no more fignification than it has in impeach-
ment, engagement, imprifonment, hereditament, and a thoufand
others of the fame nature, though the civilians have adopted a fimilar
derivation, viz. teftament from tejlarl mentem. Tay. Civ. Law. 70.
by
Ch.2. of PERSONS, 147
by them into all the countries of Europe, which they overran
at the diffolution of the Roman empire. Relics of which
conftitution, under various modifications and changes, are
ftill to be met with in the diets of Poland, Germany, and
Sweden, and the aflembly of the eftates in France c : for what
is there now called the parliament is only the fupreme court
of juftice, confifting of the peers, certain dignified ecclefiaftics
and judges j which neither is in practice, nor is fuppofed to
be in theory, a general council of the realm.
WITH us in England this general council hath been held
immemorially, under the feveral names of mychel-fynoth or
great council, mickel-gemote, or great meeting, and more
frequently ivittena-gemote, or the meeting of wife men. It was [ 148
alfo ftyled in Latin, commune concilium regni, magnum conci-
lium regisy curia magnet, conventus magnatum vel procerum,
ajfifa generalisy and fometimes communitas regni Angliae d . We
have inftances of its meeting to order the affairs of the king-
dom, to make new laws, and to amend the old, or, as Fleta e
expreffes it, novis injuriis emerfis nova conftituere remedia"
fo early as the reign of Ina king of the Weft Saxons, Offa
king of the Mercians, and Ethelbert king of Kent, in the
feveral realms of the heptarchy. And, after their union, the
Mirror f informs us, that king Alfred obtained for a perpetual
ufage, that thefe councils mould meet twice in the year,
or oftener, if need be, to treat of the government of God's
people ; how they mould keep themfelves from fin, mould
live in quiet, and mould receive right. Our fucceeding
Saxon and Danifh monarchs held frequent councils of this
fort, as appears from their refpe&ive codes of laws ; the
titles whereof ufually fpeak them to be enaled, either by the
king with the advice of his wittena-gemote, or wife men, as,
" haec funt injlituta^ quae Edgarus rex conjtlio fapientum fuorum
" injlituit *" or to be enated by thofe fages with the adyice
c Thefe were aflembled for the Lift d Glanvil. /. 13. f. 32. I. 9. e.'io
time, A. D. 1561. (See Whitelocke of Pref. 9 Rep. 2 lull. 526.
parl. c. 72.) or according to Robertfon, c /. z. c.i.
4. D. 1614- (Hift. Ch. V. i. 369.) ' c. i. 3-
Of
148 The RIGHTS BOOK I.
6f the king, " haec funt- judicia, quae fapientes conftlio regis
" Etheljlani mftituerunt ; or laftly, to be enacted by them
both together, as " haec funt in/tit utiones, quas rex Edmundus
" et epifcopi fu^ cum fapientibus fuis inftituerunt "
THERE is alfo no doubt but thefe great councils were
occafionally held under the firft princes of the Norman line;
Glanvil, who wrote in the reign of Henry the fecond,
fpeaking of the particular amount of an amercement in the
(herifPs court, fays, it had never been yet afcertained by the
general aflife, or aflembly, but was left to the cuftom of
particular counties E . Here the general aflife is fpoken of as
a meeting well known, and its ftatutes or decifions are put
[ 149 ] in a manifeft contradiftindlion to cuftom, or the common
law. And in Edward the third's time an aft of parlia-
ment, made in the reign of William the conqueror, was
pleaded in the cafe of the abbey of St. Edrhund's-bury, and
judicially allowed by the court h .
HENCE, it indifputably appears, that parliaments, or
general councils, are coeval with the kingdom itfelf. How
thofe parliaments were conftituted 'and compofed, is another
queftion, which has been matter of great difpute among our
learned antiquaries ; and particularly, whether the commons
were fummoned at all ; or if fummoned, at what period
they began to form a diftindt aflembly. But it is not my
intention here to enter into controverfies of this fort. I
hold it fufficient that it is generally agreed, that in the main
the conftitution of parliament, as it now ftands, was marked
out fo long ago as the feventeenth year of king John, A. D.
1215, in the great charter granted by that prince ; wherein
he promifes to fummon all archbifhops, bifhops, abbots,
earls, and greater barons, perfonally ; and all other tenants,
in chief under the crown, by the fheriff and bailiffs ; to meet
B Quanta eje debeat per nullum ajjl- dcbctur, 1. 9. c. IO.
fam gencralem determinatum cjt, fed " Year-book, II Edvv. III. 60.
fro confuttudint fingulorum (omifaluum
at
Ch. 2. of PERSONS. 149
at a certain place, with forty days' notice, to aflefs aids and
fcutages when necefiary. And this conftitution has fub-
fifted in fa& at leaft from the year 1266, 49 Hen. HI., there
being Hill extant writs of that date, to fummon knights, citi-
zens, and burgefies to parliament (2). I proceed therefore to
mquire wherein confifts this conftitution of parliament, as
it now (lands, and has flood for the fpaceof at leaft five hun-
dred years. And in the profecution of this inquiry, I fhall
confider, firft, the manner and time of it's aflembling : fe-
condly, it's conftituent parts : thirdly, the laws and cuftoms
relating to parliament, confidered as one aggregate body :
fourthly and fifthly, the laws and cuftoms relating to each
houfe feparately and diftinlly taken : fixthly, the methods
of proceeding, and of making ftatutes, in both houfes : and
laftly, the manner of the parliament's adjournment, proro-
gation, and diflblution.
I. As to the manner and time of aflembling. Theparlia-
ment is regularly to be fummoned by the king's writ or letter,
iffued out of chancery by advice of the privy council, at leaft
forty days before it begins to fit (3). It is a branch of the royal
prerogative, that no parliament can be convened by it's own
authority, or by the authority of any, except the king alone.
And this prerogative is founded upon very good reafon. For,
fuppofing it had a right to meet fpontaneoufly, without being
(2) The origin and progrefs of parliaments and our conftitution
will be difcufled at large in the fupplemental volume.
( 3 ) This is a provifion of the magna charta of king John : facie-
mus fummoneri, ff<r. ad certum diem, fcilicet ad termlnum quadraginta
dierum ad minus et ad certum locum. (Black. Mag. Ch. Joh. 14.)
It is enforced by 7 & 8 W. III. c. 25. which enafts, that there (hall
be forty days between the tefte and the return of the writ of fum-
mons : and this time is by the uniform practice fince the union ex-
tended to fifty days. ( 2 Hatf. 235. ) This practice was introduced
by the 22d article of the ak of union, which required that time
. between the tefte and the return of the writ of fummons for th
firft parliament of Great Britain.
VCXL. I. O called
150 The RIGHTS BOOK I.
called together, it is impoflible to conceive that all the mem-
bers, and each of the houfes, would agree unanimoufly upon
the proper time and place of meeting -, and if half of the
members met, and half abfented themfelves, who (hall deter-
mine which is really the legiflative body, the part aflembled,
or that which flays away ? It is therefore neceflary that the
parliament mould be called together at a determinate time
and place ; and highly becoming it's dignity and independ-
ence, that it (hould be called together by none but one of
it's own conftituent parts ; and, of the three conftituent
parts, this office can only appertain to the king : as he is a
fingle perfon, whofe will may be uniform and fteady ; the
firft perfon in the nation, being fuperior to both houfes in
dignity ; and the only branch of the legiflature that has a
feparate exiftence, and is capable of performing any aft at a
time when no parliament is in being '. Nor is it an exception
to this rule that, by fome modern ftatutes, on the demife
of a king or queen, if there be then no parliament in being,
the laft parliament revives, and it is to fit again for fix
months, unlefs diflblved by the fucceflbr : for this revived
parliament muft have been originally fummoned by the
crown (4).
151 ] IT is true, that by a ftatute, 16 Car. I. c. i. it was enact-
ed, that, if the king neglected to call a parliament for three
years, the peers might aflemble and iflue out writs for
choofing one ; and, in cafe of negleft of the peers, the con-
ftituents might meet and eler. one themfelves. But this, if
' By motives fomewhat fimilar to which their hiftorians have affigned
thefe the republic of Venice was alu- thefe, as the principal reafons. i. The
ated, when towards the end of the fe- propriety of having the executive power
venth century it abolifhed the tribunes a part of the legiflative, or fenate ; to
of the people, who were annually chofen which the former annual magiftrates
by the feveral diftrifts of the Venetian were not admitted, i. The neceffity of
territory, and conftituted a doge in their having a fingle perfon to convoke the
(lead; in whom the executive power great council when feparatecf. (Mod.
of the (late at prefent refides. For Un. Hilt, xxvii. 35.)
(4) See page 188.
Ch. 2. of PERSONS. 151
erer put in practice, would have been liable to all the incon-
veniences I have juft now ftated : and the act itfelf was
cfteemed fo highly detrimental and injurious to the royal
prerogative, that it was repealed by flatute 16 Car. II. c. i.
From thence therefore no precedent can be drawn.
IT is alfo true, that the convention-parliament, which
reftored king Charles the fecond, met above a month before
his return ; the lords by their own authority, and the com-
mons in purfuance of writs iflued in the name of the keepers
of the liberty of England by authority of parliament : and
that the faid parliament fat till the twenty-ninth of December,
full feven months after the reftoration ; and enacted many
laws, feveral of which are ftill in force. But this was for the
neceflity of the thing, which fuperfedes all law ; for if they
had not fo met, it was morally impoflible that the kingdom
fhould have been fettled in peace. And the firft thing done
after the king's return was to pafs an act declaring this to be
a good parliament, notwithftanding the defect of the king's
writs '. So that, as the royal prerogative was chiefly wound-
ed by their fo meeting, and as the king himfelf, who alone
had a right to object, con fen ted to wave the object ion i
this cannot be drawn into an example in prejudice of the
rights of the crown. Befides, we mould alfo remember, that
it was at that time a great doubt among the lawyers k , whe-
ther even this healing act made it a good parliament ; and
held by very many in the negative : though it feems to have
been too nice a fcruple (5). And yet, out of abundant cau-
tion, it was thought necefiary to confirm it's acts in the next
parliament, by ftatute 13 Car. II. c. 7. & c. 14.
' Stat. it Car. II. c. i. k i Sid. i.
(5) William Drake, a merchant of London, was impeached
for writing a pamphlet, intitled, The Long Parliament revived, in
which he maintained, that there could be no legiflative authority
till that was legally and regularly diflblved by the king and the
two houfes of parliament, according to the 16 Car. I. c. 7. Com.
Journ. 20 Nov. 1660.
02 IT
152 The RIGHTS BOOK I.
IT is likewife true, that at the time of the revolution,
A.D. 1688, the lords and commons, by their own authority,
and upon the fummons of the prince of Orange, (afterwards
king William,) met in a convention, and therein difpofed of
the crown and kingdom. But it muft be remembered, that
this aflembling was upon a like principle of neceflity as at the
reftoration -, that is, upon a full convi&ion that king James
the fecond had abdicated the government, and that the throne
was thereby vacant: which fuppofition of the individual
members was confirmed by their concurrent refolution, when
they actually came together. And, in fuch a cafe as the
palpable vacancy of a throne, it follows ex necejjltate ra,
that the form of the royal writs muft be laid afide, otherwife
no parliament can ever meet again. For, let us put another
poffible cafe, and fuppofe, for the fake of argument, that the
whole royal line fhould at any time fail and become extinft,
which would indifputably vacate the throne : in this fitua-
tion it feems reafonable to prefume, that the body of the
nation, confifting of lords and commons, would have a right
to meet and fettle the government ; otherwife there muft be
no government at all. And upon this and no other principle
did the convention in 1688 aflemble. The vacancy of the
throne was precedent to their meeting without any royal
fummons, not a confequence of it. They did not aflemble
without writ, and then make the throne vacant ; but, the
throne being previoufly vacant by the king's abdication, they
aflembled without writ, as they muft do if they aflembled at
all. Had the throne been full, their meeting would not have
been regular ; but as it was really empty, fuch meeting be-
came abfolutely neceflary. And accordingly it is declared
by ftatute I W. & M. ft. i. c. I. that this convention was
really the two houfes of parliament, notwithstanding the
want of writs or other defects of form. So that, notwith-
ftanding thefe two capital exceptions, which were juftifiable
only on a principle of neceflity, (and each of which, by the
way, induced a revolution in the government,) the rule laid
down is in general certain, that the king, only, can convoke
a parliament.
Ch. 2. of PERSONS. 153
AND this by the antient (latutes of the realm ' he is bound
to do every year, or oftener, if need be. Not that he is, or
ever was, obliged by thefe ftatutes to call a new parliament
every year ; but only to permit a parliament to fit annually
for the redrefs of grievances, and difpatch of bufmefs, if need
be (6). Thefe laft words are fo loofe and vague, that fuch of
1 4 Edward III. c. 14. 36 Edw. III. c. 10.
(6) Mr. Granville Sharp, in a treatife publimed fome years ago,
argued ingenioufly againft this conftru&iou of the 4 Edw. III., and
maintained, that the words, if need be, referred only to the preced-
ing word oftener. 'So that the true fignification was, that a par-
liament mould be held once every year at all events ; and if there
mould be any need to hold it oftener, then more than once. (See
his Declaration, &c. p. 166. ) The cotemporary records of parlia-
ment, in fome of which it is fo exprefled without any ambiguity,
prove beyond all controverfy that this is the true conftru&ion. In
antient times many favourite laws were frequently re-ena&ed.
In the 50 Edw. III. it is exprefsly and absolutely declared, that a
parliament mould be held once a year. (Rot. Par. No. 186. ) In^
the i R. II. we find again another petition from the commons,
that a parliament mould be held once a year at the leaft : " Que
" plefe a n re Jit S r de tenir parlement un foetz par an au meynz, et
" ceo en lieu convenable." The king's anfwer is, " As to that
" parliament mall be held every year, let the ftatutes thereupon,
" be kept and preferved ; but as to the place where the parliament
mail be held, the king will therein do his pleafure." (Rot.
Parl. No. 95.) And, in the next year the king declared he had
fummoned the parliament, becaufe it was ordained that parliament
mould be held once a year. ( Rot. Parl. 2 R. II. No. 4. )
But I can by no means agree with Mr. Sharp, and thofe who
contend that it is the meaning of thefe records and ftatutes that
there mould be an election every year. The word parliament at
that time did not neceffarily include any fuch idea ; for it is every
where applied to a feffion without any diftinftion, whether it was
held after a prorogation or a difTolution. ( Rot. Parl. pajjim. ) It
is true that for fome time after the houfe of commons was regu-
larly eftablimed diffolutions were frequent; for at that time the
de&ors were few, and a feat in parliament was confidered rather a
O 3 burden
'53
The RIGHTS BOOK I.
our monarchs as were inclined to govern without parlia-
ments, neglected the convoking them fometimes for a very
confiderable period, under pretence that there was no need
of them. But to remedy this, by the ftatute 16 Car. II. c. i.
it is enacted, that the fitting and holding of parliaments fhall
not be intermitted above three years at the moil. And by the
ftatute i W. & M. ft. 2. c. 2. it is declared to be one of the
rights of the people, that for redrefs of all grievances, and
for the amending, (lengthening and preferring the laws,
parliaments ought to be held frequently. And this indefinite
frequency is again reduced to a certainty by ftatute 6 W. & M.
c. 2. which ena&s, as the ftatute of Charles the fecond had
burden to be avoided than a diftin&ion to be folicited ; and the
members were not enabled to recover their wages till the king had
difcharged them from farther attendance, by putting an end to the
parliament. In the firft reigns after the reprefentation of the com-
mons was eftablifhed, the duration and intermiffions of parliaments
were fhort ; but for feveral reigns preceding the revolution, both
had become extended to fuch a length, that it became necefiary
for the parliament to interpofe it's authority, and fix fome limits
to it's own exiftence.
In the following reigns, the longeft durations and intermiffioni
were nearly as follows :
Duration. Intermifiion.
Hen. VIII. 6 years. . 6 years.
Edw. VI. 4
Eliz. - ii 4
Ja. I. - 9 - 6
Ch. I. - 8 . . 12
Ch.II. 17 4
See the printed Report of the Committee to examine Precedents
in Impeachments, 19 April 1791. (p. 16. et feq.} In Ireland
there was no regular meeting of the parliament from 1666 till
1692 ; and from the reign of Queen Anne in 1703, it aflembled
only once in two years, till 1783 ; fince which time it has fat every
year as in England. (Lord Mountmor. 419.)
done
Ch. 2. of PERSONS. 153
done before, that a new parliament (hall be called within
three years 1 " after the determination of the former (7).
II. THE conftituent parts of a parliament are the next
objects of our inquiry. And thefe are the king's majefty>
fitting there in his royal political capacity, and the three
eftates of the realm ; the lords fpiritual, the lords temporal,
(who fit, together with the king, in one houfe,) and the com-
mons, who fit by themfelves in another. And the king and
thefe three eftates, together, form the great corporation or
body politic of the kingdom ", of which the king is faid to
be caputy priticipiutn, et finis. For upon their coming together
the king meets them, either in perfon or by reprefentation ;
without which there can be no beginning of a parliament o :
and he alfo has alone the power of diflblving them.
IT is highly neceflary for preferving the balance of the [ 154
conltitution, that the executive power mould be a branch,
though not the whole, of the legiflative. The total union
m This is the fame period, that is " 4 Inft. i,a. Stat. I Eli. c. 3. Hal
allowed in Sweden for intermitting their of Parl. i.
general diets, or parliamentary aflern- 4 Inft. 6.
blies. Mod. Un. Hilt, xxxiii. 15.
(7) This part of the ftatute 6 W. & M. c. 2. confirms the fta-
tute 1 6 Car. II. c. I. in declaring, that there "fhall not be a longer
interval than three years after a difiblution : but ' the 16 Car. II.
feems to be more extenfive in it's operation, by providing that
there fhall not be an intermiffion of more than three years after
any fitting of parliament, which will extend alfo to a prorogation.
But as the mutiny aft, and the land-tax and malt-tax afts are puffed
for one year only, thefe two ftatutes are now of little avail, for the
parliament muft neceffarily be fummoned for the difpatch of bufi-
nefs once every year. In antient times, efpecially before the abo-
lition of the feudal tenures at the reftoration of Ch. II. our kings
had fuch a revenue, independent of parliament, that they were
enabled to reign many years together without the affiftance of
parliament, and in defiance of the ftatutes mentioned in the pre-
ceding note.
04 of
'54
The RIGHTS BOOK. I.
of them, we have feen, would be productive of tyranny ; the
total disjunction of them, for the prefent, would in the end
produce the fame effefts, by caufing that union againft which
it feems to provide. The legiflative would foon become ty-
rannical, by making continual encroachments, and gradually
afiuming to itfelf the rights of the executive power. Thus
the long parliament of Charles the firft, while it aled in a
conftitutional manner with the royal concurrence, redrefled
many heavy grievances, and eftabliftied many falutary laws.
But when the two houfes aflumed the power of legiflation, in
exclufion of the royal authority, they foon after aflumed like
wife the reins of adminiftration; and, in confequence of thefe
united powers, overturned both church and (late, and efta-
bliflied a worfeopprefllon than any they pretended to remedy.
To hinder, therefore, any fuch encroachments, the king is
himfelf a part of the parliament : and, as this is the reafon of
his being fo, very properly therefore the fhare of legiflation,
which the conftitution has placed in the crown, confifts in
the power of rejeEling rather than refolding ; this being fuffi-
cient to anfwer the end propofed. For we may apply to the
royal negative in this inftance, what Cicero obferves of the
negative of the Roman tribunes, that the crown has not any
power of doing wrong, but merely of preventing wrong from
being done p . The crown cannot begin of itfelf any alter-
ations in the prefent eftabliftied law ; but it may approve or
difapprove of the alterations fuggefted and confented to by
the two houfes. The legiflative therefore cannot abridge
the executive power of any rights which it now has by law,
without its own confent ; fince the law muft perpetually
ftand as it now does, unlefs all the powers will agree to
alter it. And herein indeed confifts the true excellence of
the Englifh government, that all the parts of it form a mutual
L *55 1 check upon each other. In the legiflature, the people are a
check upon the nobility, and the nobility a check upon the
people ; by the mutual privilege of rejecting what the other
P Sulla trtlunii plekit faa fege injuriac facttadae paicflatem aJtmit, auxili*
rrt-.di relifuH. Dt LL $ . 9.
has
Ch. 2. cf PERSONS. 155
has refolved : while the king is a check upon both, which
preferves the executive power from encroachments. And
this very executive power is again checked and kept within
due bounds by the two houfes, through the privilege they
have of inquiring into, impeaching, and punifhing the con-
duel: (not indeed of the king q , which would deftroy his
conflitutional independence ; but, which is more beneficial to
the public,) of his evil and pernicious counfellors. Thus every
branch of our civil polity fupports and is fupported, regu-
lates and is regulated, by the reft : for the two houfes natu-
rally drawing in two directions of oppofite intereft, and the
prerogative in another ftill different from them both, they
mutually keep each other from exceeding their proper limits ;
while the whole is prevented from feparation, and artificially
connected together by the mixed nature of the crown, which '
is a part of the legiflative, and the fole executive magiftrate.
Like three diftintr. powers in mechanics, they jointly impel
the machine of government in a direction different from
what either, acting by itfelf, would have done ; but at the
fame time in a direction partaking of each, and formed out
of all ; a direction which conftitutes the true line of the
liberty and happinefs of the community.
LET us now confider thefe conftituent parts of the fovereign
power, or parliament, each in a feparate view. The king's
majefty will be the fubjet of the next, and many fubfequent
chapters, to which we muft at prefent refer.
THE next in order are the fpiritual lords. Thefe confift of
two archbifhops, and twenty-four bifhops ; and at the diflb-
lution of monafteries by Henry VIII., confifted likewife of
twenty-fix mitred abbots, and two priors r : a very confiderable
body, and in thofe times equal in number to the temporal
nobility 5 (8). And thefe hold, or are fuppofed to hold, certain
1 -Stat.izCar.il. .30. ' Co.Litt. 97.
r Seld. tit. hon. 2. J. 27.
(8) In the place referred to, lord Coke fays there were
twenty- feven abbots and two priors, and he is there filent rc-
fpefting
156 The RIGHTS BOOK I.
antient baronies under the king : for William the conqueror
thought proper to change the fpiritual tenure of frank-
almoign or free alms, under which the bifhops held their lands
during the Saxon government, into the feodal or Norman
tenure by barony ; which fubjeted their eftates to all civil
charges and aflefiments, from which they were before
exempt*: and, in right of fuccefiion to thofe baronies, which
were unalienable from their refpecHve dignities, the bifliops
and abbots were allowed their feats in the houfe of lords 1 . But
though thefe lords fpiritual are in the eye of the law a diftinft
eflate from the lords temporal, and are fo diftinguiflied in
moft of our ats of parliament, yet in practice they are ufually
blended together under the one name of the lords ; they inter-
mix in their votes ; and the majority of fuch intermixture
joins both eftates. And from this want of a feparate aflembly
and feparate negative of the prelates, fome writers have
argued" very cogently, that the lords fpiritual and temporal are
now in reality only one eft ate w : which is unqueftionably true
in every effectual fenfe, though the antient diftin&ion between
them ftill nominally continues. For if a bill fhould pafs
their houfe, there is no doubt of its validity, though every
lord fpiritual mould vote againft it ; of which Selden x , and
Gilb. Hift. Exch. 55. Spelm. W. I. * Baronage, p. i. c. 6. The afl of
39 1 - uniformity, I Eliz. c. 2. was pafled with
Glanv. 7. i. Co. Liu. 97. Sheld. the diflent of all the bifhops : (Gibf.
tit. hon. a. 5. 19. codex, 286.) and therefore the ftyle of
u Whitelocke on Parliam. c. 73. lor ds fpiritual is omitted throughout the
Warburt. Alliance, b. a. 0.3. whole (9).
w Dyer, 60.
fpe&ing the number of the temporal peers ; but in the firft page
of the 4th Inftitute, he tells us that their number, when he is then
writing, is 106, and the number of the commons 493.
(9) No rational or antient principle can perhaps be fuggefted
why the bifhops mould not have exactly the fame legiflative
functions as the other peers of parliament ; the ftyle of the houfe
of lords, viz. the lords fpiritual and temporal, was probably in-
tended as a compliment to the bifhops, to exprefs the precedence
which they are entitled to before all the temporal barons, which
1 6 originally
Ch. 2. f PERSONS. 156
fir Edward Coke y , give many inftances : as, on the other
hand, I prefume it would be equally good, if the lords
temporal prefent were inferior to the bifhops in number, and
every one of thofe temporal lords gave his vote to rejet the
bill ; though fir Edward Coke feenis to doubt 2 whether this
would not be an ordinance, rather than an aft, of parliament.
THE lords temporal confift of all the peers of the realm [ 157
(the bimops not being in ftri&nefs held to be fuch, but
merely lords of parliament a ) by whatever title of nobility
diftinguifhed ; dukes, marquifles, earls, vifcounts, or barons ;
of which dignities we fhall fpeak more hereafter. Some of
thefe fit by defcent, as do all antient peers ; fome by creation,
as do all new-made ones ; others, fince the union with Scot-
land, by election, which is the cafe of the fixteen peers, who
reprefent the body of the Scots nobility. Their number is
indefinite, and may be increafed at will by the power of the
crown ; and once, in the reign of queen Anne, there was an
* 1 1nft. 585, 6, 7. See Keilw.i84.; in no bifhops were fummoned, till after
where it is holden by the judges, 7 Hen. the repeal of the ftatute 16 Car. I. t.Vf.
V1IL, that the king may hold a parlia- by ftatute 13 Car. H. ft. I. c.a.
ment without any fpiritual lords. This z 4 Inft. 25.
was alfo exemplified in fat in the two * Staunford, P.C. 153.
firft parliaments of Charles II.; where-
originally was the only character that gave a claim to a feat in the
houfe of lords. Unlefs precedents could be found to the contrary,
there feems to be no reafon to doubt, but that any aft at this day
would be valid, though all the temporal lords or all the fpiritual
lords were abfent.
In the i Eliz. c. 2. the ftyle of the parliament is, the lords and
commons in parliament affembled ; but there is the fame ftyle ufed
alfo in i Eliz. c. n. a revenue act. Lord Mountmorris informs
us, that on the i8th Feb. 1641, a motion was made in the Irifti
houfe of Lords, " That as all the bimops were againft a reprefent-
" ation againft certain grievances, the lords fpiritual mould not be
" named : upon which the judges were confulted ; and their opi-
" nion was, that in any act or order which patted, it muft be en-
" tered by the lords fpiritual and temporal." i Vol. 344.
inftance
157
RIGHTS BOOK I
inftance of creating no lefs than twelve together ; in con-
templation of which, in the reign of king George the firft, a
bill paired the houfe of lords, and was countenanced by the
then miniftry, for limiting the number of the peerage. This
was thought by fome to promife a great acquifition to the
conftitution, by reftraining the prerogative from gaining the
afcendant in that auguft aflembly, by pouring in at pleafure
an unlimited number of new-created lords. But the bill was
ill-relifhed and mifcarried in the houfe of commons, whofe
leading members were then defirous to keep the avenues to
the other houfe as open and eafy as poflible.
THE diftin&ion of rank and honour is neceffary in every
well-governed ftate ; in order to reward fuch as are eminent
for their fervices to the public, in a manner the mod defirable
to individuals, and yet without burden to the commu-
nity; exciting thereby an ambitious yet laudable ardor,
and generous emulation in others. And emulation, or
virtuous ambition, is a fpring of alion, which, however
dangerous or invidious in a mere republic or under a defpotic
fway, will certainly be attended with good effects under a
free monarchy j where, without deftroying it's exiftence,
it's excefies may be continually retrained by that fuperior
power from which all honour is derived. Such a fpirit,
when nationally diftufed, gives life and vigour to the com-
munity ; it lets all the wheels of government in motion ,
[ 158 ] which, under a wife regulator, may be directed to any bene-
ficial purpofe ; and thereby every individual may be made
fubfervient to the public good, while he principally means to-
promote his own particular views. A body of nobility is
alfo more peculiarly neceflary in our mixed and compounded
conftitution, in order to fupport the rights of both the crown
and the people, by forming a barrier to withftand the
encroachments of both. It creates and preferves that gradual
fcale of dignity which proceeds from the peafant to the
prince ; rifing like a pyramid from a broad foundation, and
diminifhing to a point as it rifes. It is this afcending and
contracting proportion that adds liability to any government ;
1 7 for
Ch. 2. of PERSONS. 158
for when the departure is fudden from one extreme to an-
other, we may pronounce that ftate to be precarious. The no-
bility therefore are the pillars, which are reared from among
the people, more immediately to fupport the throne ; and, if
that falls, they muft alfo be buried under it's ruins. Accord-
ingly, when in the laft century the commons had deter-
mined to extirpate monarchy, they alfo voted the houfe of
lords to be ufelefs and dangerous. And fince titles of no-
bility are thus expedient in the ftate, it is alfo expedient that
their owners mould form an independent and feparate branch
of the legiflature. If they were confounded with the mafs
of the people, and like them had only a vote in electing re-
prefentatives, their privileges would foon be borne down and
overwhelmed by the popular torrent, which would effectually
level all diftin&ions. It is therefore highly neceflary that
the body of nobles fhould have a diftinft affembly, diftinft
deliberations, and diftinct powers from the commons.
THE commons corifift of all fuch men of property in the
kingdom (10), as have not feats in the houfe of lords; every
one of which has a voice in parliament, either perfonally or
by his reprefentatives. In a free ftate every man, who is
fuppofed a free agent, ought to be in fome meafure his
own governor ; and therefore a branch at leaft of the legif-
lative power fhould refide in the whole body of the people.
And this power, when the territories of the ftate are fmall and
it's citizens eafily known, fhould be exercifed by the people
in their aggregate or collective capacity, as was wifely or- [ 159 ]
dained in the petty republics of Greece, and the firft rudi-
ments of the Roman ftate. But this will be highly incon-
venient, when the public territory is extended to any confi-
(10) The word commons, in it's prefent ordinary fignification,
comprifes all the people who are under the rank of peers, without
any regard to property ; but, in it's original fignification, it was
confined to thofe only who had a right to fit, or had a right to
Tote for reprefentatives in the houfe of commons.
derable
, 5 9 The RIGHTS BOOK I.
of citizens M ncreaied.
war, aD the bnrgbers of loir
free citizens of Rome, and each had a rote in
the
= 7 ..,. Pfc-pey--
". r * ". -: . T ~ ~. - ~~~ . ': '. ~-~
In fo large a ftate as
bat the people
it is impraai-
ehofa,byaun-
.
- - . . . . -' ^ - . V i : - - -
. ." ' '.'. ,~ '.'. : ' '- '- ~. ' ~. ' .'. ' . '. ' ' "
i_. ii_. *, g r I ^ .
."'" .-"..-: 7T". T'.-r . ...... '.'-....-.'
gei^ciioienbythe.eTcantflepan.orfoppoM
t of the nation; Men in die feme manner as die burghers
' of Sweden are choien by die corporate towns,
fending foar, as London does with us, other ckies
two, a^fc4ne only one". Tbenwaberof Engfift reprdent-
acres is 513, and Scots 45 ; in all 55!. And every mem-
and mwed,ferr for the whole reahn. For die end of his
i-nniMj, thidMr b not panknbr, bnt general : not barely to
_ ~ *^r^ , j*~ .< <,, i .^
aorancagv MS oonnjcnents, MB tne amm^m weattn; to aamc
h majefty(a appears from the writ of fminiDom') de cvm~
** mmm euffcfuper mjfUJM ymUmfJUm *r+as a trrgentihu, re-
be is n
nrfnkwith, or take the
iijkm any pafucvbr point, nnlefs
or prwknt fo to do.
Ciobl TgBarethccoiitirfntpartsof a parEunent ; the long,
theiob^rk^a^tep^,andihecwn m or. Pam,of
wnidb each <b Decenary, tine the content of ail three b re-
'4. 14-
Gh. 2. of PERSONS. 160
quired to make any new law that (hall bind the fubje&.
Whatever is ena&ed for law by one, or by two only, of the
three is no ftatute ; and to it no regard is due, unlefs in mat-
ters relating to their own privileges. For though, in the
times of madnefs and anarchy, the commons once pafled a
vote d , " that whatever is enacted or declared for law by the
" commons in parliament aflembled hath the force of law j
4< and all the people of this nation are concluded thereby,
" although the confent and concurrence of the king orhoufe
' of peers be not had thereto (i i) :" yet, when the conftitu-
tion was reftored in all it's forms, it was particularly en-
acted by ftatute 13 Car. II. c. i. that if any perfon (hall
malicioufly or advifedly affirm, that both or either of the
houfes of parliament have any legiflative authority without
the king, fuch perfon (hall incur all the penalties of zprat-
munire.
III. WE are next to examine the laws and cuftoms relat-
ing to parliament, thus united together and confidered as one
aggregate body.
THE power and jurisdiction of parliament, fays fir Ed-
ward Coke % is fo tranfcendant and abfolute, that it cannot
be confined, either for caufes or perfons, within any bounds.
And of this high court, he adds, it may be truly faid, "Ji anti-
" q uitatem fpt3es, eft vftuftiffima ; Ji dignitatem, eft bonoratiffi-
" ma ; Ji jur ifdiliorum t eft capaci/Jima" It hath fovereign and
uncontrollable authority in the making, confirming, enlarging,
reftraining, abrogating, repealing, reviving, and expounding
of laws, concerning matters of all poffible denominations,
ecclefiaftical or temporal, civil, military, maritime, or crimi-
nal : this being the place where that abfolute defpotic power,
which muft in all governments refide fomewhere, is intrufted
* 4 Jan. 1648. 4ln(t36.
( 1 1 ) This was a natural prologue to the tragical drama which
was performed o the 3oth of the fame momth.
!6o The RIGHTS BOOK I.
by the conflitution of thefe kingdoms. All mifchiefs and
161 ] grievances, operations and remedies, that tranfcend the ordi-
nary courfe of the laws, are within the reach of this extraor-
dinary tribunal. It can regulate or new-model the fucceflion
to the crown ; as was done in the reign of Henry VIII. and
William III. It can alter the eftablifhed religion of the land ;
as was done in a variety of inftances, in the reigns of king
Henry VIII. and his three children. It can change and create
afrefh even the conftitution of the kingdom and of parlia-
ments themfelves ; as was done by the a& of union, and the
feveral ftatutes for triennial and feptennial elections. It can,
in fliort, do every thing that is not naturally impoffible ;
and therefore fome have not fcrupled to call it's power, by a
figure rather too bold, the omnipotence of parliament (12).
True it is, that what the parliament doth, no authority upon
earth can undo. So that it is a matter mod eflential to the
liberties of this kingdom, that fuch members be delegated
to this important truft, as are moft eminent for their probity,
their fortitude, and their knowledge j for it was a known
apophthegm of the great lord treafurer Burleigh, " that Eng-
" land could never be ruined but by a parliament ;" and, as
fir Matthew Hale obferves f , this being the higheft and
greateft court, over which none other can have jurifdiUon
in the kingdom, if by any means a mifgovernment fhould
any way fall upon it, the fubjecls of this kingdom are left
without all manner of remedy. To the fame purpofe the
f Of parliaments, 49.
(12) De Lolme has improved upon this, and has, I think, un-
warrantably aflerted, that " it is a fundamental principle with the
" Englifti lawyers, that parliament can do every thing but make
" a woman a man, and a man a woman." (P. 134.) The omni-
potence of parliament fignifies nothing more than the fupreme
fovereign power of the ftate, or a power of aftion uncontrolled by
any fuperior. In this fenfe, the king in the exercife of his
prerogatives, and the houfe of lords in the interpretation of laws,
are alb omnipotent ; that is, free from the control of any fuperior
provided by the conftitution.
prefident
Ch. 2. of PERSONS. 161
prefident Montefquieu, though I truft too haftily, prefages K ,
that as Rome, Sparta, and Carthage have loft their liberty
and periflied, fo the conftitution of England will in time
lofe it's liberty, will perifh : it will perifti whenever the
legiflative power mall become more corrupt than the
executive.
IT muft be owned that Mr. Locke h , and other theoretical
writers, have held, that ' there remains ftill inherent in the
" people a fupreme power to remove or alter the legiflative,
" when they find the legiflative al contrary to the truft re-
" pofed in them : for when fuch truft is abufed, it is thereby
" forfeited, and devolves to thofe who gave it." But how- _
ever juft this conclufion may be in theory, we cannot prac*'-
tically adopt it, nor take any legal fteps for carrying it into [162]
execution, under any difpenfation of government at prefent
actually exifting. For this devolution of power, to the
people at large, includes in it a diflblution of the whole form
of government eftablifhed by that people ; reduces all the
members to their original ftate of equality ; and, by annihi-
lating the fovereign power, repeals all pofitive laws whatfo-
ever before enacted. No human laws will therefore fuppofe
a cafe, which at once muft deftroy all law, and compel men
to build afrefli upon a new foundation ; nor will they make
provifion for fo defperate an event, as muft render all legal
provifions ineffectual '. So long therefore as the Englifii
conftitution lafts, we may venture to affirm, that the power
of parliament is abfolute and without control.
IN order to prevent the mifchiefs that might arife, by
placing this extenfive authority in hands that are either inca-
pable, or elfe improper to manage it, it is provided by the
cuftom and law of parliament \ that no one (hall fit or vote
in either houfe, unlefs he be twenty-one years of age. This
is alfo exprefsly declared by ftatute 7 & 8 W. III. c. 25. with
regard to the houfe of commons \ doubts having arifen, from
Sp. L. 1 1. 6. ' See page 244.
* On Gov. p. , 149, a;, J Whitelocke, c. 5. 4 Inft, 47
VOL. I. P fome
1 62 The RIGHTS BOOK I.
fome contradictory adjudications, whether or no a minor was
incapacitated from fitting in that houfe k (i3). It is alfo
enacted by ftatute 7 Jac. I. c. 6. that no member be permitted
to enter into the houfe of commons, till he hath taken the
oath of allegiance before the lord-ileward or his deputy (14):
and by 30 Car. II. ft. 2. and i Geo. I. c. 13. (15) that no mem-
ber {hall vote or fit in either houfe, till he hath in the pre-
fence of the houfe taken the oath of allegiance, fupremacy, and
abjuration, and fubfcribed and repeated the declaration againft
tranfubftantiation, and invocation of faints, and the facrifice
of the mafs. Aliens, unlefs naturalized, were likewife by
the law of parliament incapable to ferve therein l : and now
it is enacted by ftatute 12 & 13 W. III. c. 2. that no alien,
even though he be naturalized, (hall be capable of being a
member of either houfe of parliament. And there are not
[ 163 ] only thefe {landing incapacities ; but if any perfon is made a
peer by the king, or elected to ferve in the houfe of commons
by the people, yet may the refpeclive houfes upon complaint
of any crime in fuch perfon, and proof thereof, adjudge him
k Com. Journ. 16 Dec. 1690. ' Com. Journ. 10 M*r. 1613. 18 Feb. 1625-
(13) According to antient principles, minors, unlefs actually
knighted, muft have been difqualified ; for, in general, no one
was capable of performing the feudal fervices till he had attained
the age of twenty-one. And one of the moil important of thefe
fervices was, attendance on the lord's court. But if the king had
conferred the honour of knighthood upon a minor, then it was
held that the imbecility of minority ceafed. See note to p. 68.
zd vol.
(14) On the firft day of the meeting of every new parliament,
the lord-fteward of his majefty's houfehold attends in a room ad-
joining to the houfe of commons, and adminillers an oath to the
members prefent ; and he then executes a commiflion or deput-
ation empowering any one or more of a great number of members
fpecified in it, to adminifter the oath to others. Cwft. Journ.
(15) The oath of abjuration was altered by 6 Geo. III. c. 53.
upon the death of the Pretender.
difabled
Ch. 2. of PERSONS. 163
difabled and incapable to fit as a member m : and this by the
law and cuftom of parliament (16).
m Whitelocke of parl. c. 101. See 14 Feb. 1580. ai Jan. 16*8. 9 Nov.
Lords' Journ. 3 May i6zo. 13 May ai Jan. 1640. 6 Mar. 1676. 6 Mar.
1614. 36 May 17*5. Com. Journ. 1711. 17 Feb. 1769.
( 16) This fentence was not in the firft edition, but was added,
no doubt, by the learned Judge, with an allufion to the Middlefex
election. The circumftances of that cafe were briefly thefe:
On the 19 Jan. 1764, Mr. Wilkes was expelled the houfe of com-
mons, for being the author of a paper called the North Briton,
No. 45. At the next election, in 1768, he was elected for the
county of Middlefex; and on 3 Feb. 1769, it was refolved that
John Wilkes, efq. having publiflied feveral libels fpecified in the
Journals, be expelled this houfe : and, a new writ having been or-
dered for the county of Middlefex, Mr. Wilkes was re-elected
without oppofition ; and on the 17 Feb. 1769, it was refolved,
that " John Wilkes, efq. having been in this feffion of parlia-
" ment expelled this houfe, was and is incapable of being elected
" a member to ferve in this prefent parliament ;" and the election
was declared void, and a new writ ordered. He was a fecond
time re-elected without oppofition; and on 17 March 1769, the
houfe again declared the election void, and ordered a new writ. At
the next election, Mr. Luttrel, who had vacated his feat by accept-
ing the Chiltern Hundreds, offered himfelf a candidate againft
Mr. Wilkes. Mr. Wilkes had 1 143 votes, and Mr. Luttrel 296.
Mr. Wilkes was again returned by the meriff. On the 15 April
1769, the houfe refolved, that Mr. Luttrel ought to have been
returned, and ordered the return to be amended. On the 29
April, a petition was prefented by certain freeholders of Mid-
dlefex, againft the return of Mr. Luttrel ; and on the 8 May, the
houfe refolved that Mr. Luttrel was duly elected. On the
3 May 1783, it was refolved, that the refolution of the 17 Feb.
1769, (hould be expunged from the Journals of the houfe, as be-
ing fubverfive of the rights of the whole body of electors of this
kingdom. And at the fame time it was ordered, that all the
declarations, orders, and refolutions refpecting the election of
John Wilkes, efq. mould be expunged. The hiftory of Eng-
land furnifhes many inftances of important conftitutional quef-
tions that have deeply agitated the minds of the people of this
P 2 country,
1 63 The RIGHTS BOOK I.
FOR, as every court of juftice hath laws and cuftoms for
it's dire&ion, fome the civil and canon, fome the common
law, others their own peculiar laws and cuftoms, fo the high
court of parliament hath alfo it's own peculiar law, called
the lex et confuetudo parliamenti ; a law which fir Edward Coke n
obferves is, " ab omnibus quaerenda* a multis Ignorata (17),
" a panels cognita" It will not therefore be expected that
we mould enter into the examination of this law, with any de-
gree of minutenefs : fince, as the fame learned author aflures
us , it is much better to be learned out of the rolls of parlia-
ment, and other records, and by precedents, and continual
experience, than can be exprefied by any one man. It will
be fufficient to obferve, that the whole of the law and cuflom
of parliament has it's original from this one maxim, " that
" whatever matter arifes concerning either houfe of parlia-
ment, ought to be examined, difcufled, and adjudged in
n I Inft. ii. 4lnft. 50.
country, which can raife little or no doubts in the minds of thofe
who view them at a diftance uninfluenced by interefl or paffion.
It might perhaps be a violent meafure in the houfe of commons to
expel a member for the libels which he had published : but that
the fubfequent proceedings were agreeable to the law of parlia-
ment, that is, to the law of the land, the authorities here referred
to by the learned Judge, 1 conceive, do moft unanfwerably prove.
It is fuppofed that the refolution of the 17 Feb. 1769, was con-
fidered fee be fubverfive of the rights of electors, becaufe it
affigned expulfion alone, without ftating the criminality of the
member to be the caufe of his incapacity during that parliament.
But as his offences were particularly defcribed in the refolution by
which he was expelled on the 3d of the fame month, no one
could poffibly doubt but the latter refolution had as clear a re-
ference to the former, as if it had been repeated in it word for
word.
(17) Lord Holt has obferved, that " as to what my lord Coke
" fays, that the lex parliamenti ejl a multis ignorata, is only becaufe
" they will not apply themfelves to underftand it." 2 Ld.
Ray. 11-14.
that
Ch. 2. of PERSONS. 163
that houfe to which it relates, and not elfewhere P."
Hence, for inftance, the lords will not fuffer the commons to
interfere in fettling the election of a peer of Scotland ; the
commons will not allow the lords to judge of the election of
aburgefs; nor will either houfe permit the fubordinate
courts of law to examine the merits of either cafe. But the
maxims upon which they proceed, together with the method
of proceeding, reft entirely in the bread of the parliament
itfelf ; and are not defined and afcertained by any particular
ftatedlaws(i8).
THE privileges of parliament are likewife very large and [ 1 64
indefinite. And therefore when in 3 1 Hen. VI. the houfe of
lords propounded a queftion to the judges concerning them,
the chief juftice, fir John Fortefcue, in the name of his
brethren, declared, " that they ought not to make anfwer
to that queftion ; for it hath not been ufed aforetime that
P 4 Inft. 15.
_ .
(18) This fentence feems to imply a difcretionary power in the
two houfes of parliament, which furely is repugnant to the fpirit
of our conftitution. The law of parliament is part of the general
law of the land, and muft be difcovered and conftrued like all
other laws. The members of the refpe&ive houfes of parliament
are in moft inftances the judges of that law ; and like the judges of
the realm, when they are deciding upon pad laws, they are under
the moft facred obligation to enquire and decide what the law
actually is, and not what, in their will and pleafure, or even in their
reafon and wifdom, it ought to be. When they are declaring
what is the law of parliament, their character is totally different
from that with which, as legiflators, they are inverted when they
are framing new laws ; and they ought never to forget the admo-
nition of that great and patriotic chief juftice lord Holt, viz. "that
" the authority of parliament is from the law, and as it is circum-
" fcribed by law, fo it may be exceeded ; and if they do exceed
" thofe legal bounds and authority, their acts are wrongful, and
" cannot be juftified any more than the acts of private men."
I Salk. 505.
P 3 the
164 The RIGHTS BOOK I.
" the juftices fhould in any wife determine the privileges of
" the high court of parliament. For it is fo high and mighty
" in it's nature, that it may make law : and that which is
" law, it may make no law : and the determination and
knowledge of that privilege belongs to the lords of parlia-
ment, and not to the juftices q ." Privilege of parliament
was principally eftablifhed, in order to protect it's members
not only from being molefted by their fellow-fubjects, but
alfo more efpecially from being opprefled by the power of the
crown. If therefore all the privileges of parliament were
once to be fet down and afcertained, and no privilege to be
allowed but what was fo defined and determined, it were
eafy for the executive power to devife fome new cafe, not
within the line of privilege, and under pretence thereof to
harafs any refractory member and violate the freedom of
parliament. The dignity and independence of the two houfes
are therefore in great meafure preferved by keeping their
privileges indefinite (19). Some however of the more noto-
rious privileges of the members of either houfe are, privilege
of fpeech, of perfon, of their domeftics, and of their lands and
i Scld. Baronarce, part r. c. 4.
(19) In the obfervations above, upon the privileges of parlia-
ment, the Editor is obliged to differ from the learned Judge ; he
cannot but think that clearnefs and certainty are eflentially necef-
fary to the liberty of Englifhmen. Myftery and ignorance are the
natural parents of fuperftition and flavery. How can rights and
privileges be claimed and afferted, unlefs they are afcertained and
defined ? The privileges of parliament, like the prerogatives of
the crown, are the rights and privileges of the people. They
ought all to be limited by thofe boundaries which afford the greateft
mare of fecurity to the fubject and conftituent, who may be
equally injured by their extenfion as their diminution. The
privileges of the two houfes ought certainly to be fuch as will beft
preferve the dignity and independence of their debates and couiv-
cils without endangering the general liberty. But if they are left
uncertain and indefinite, may it not be replied with equal force,
that under the pretence thereof the refraftory members may harafs
the executive power, and violate the freedom of the people ?
goods
Ch. 2. 0/"PR80NS. 164
goods (20). As to the firft, privilege of fpeech, it is declared
by the ftatute i W. & M. ft. 2. c. 2. as one of the liberties of
the people, " that the freedom of fpeech, and debates, and
" proceedings in parliament, ought not to be impeached or
" queftioned in any court or place out of parliament." And
this freedom of fpeech is particularly demanded of the king
in perfon, by the fpeaker of the houfe of commons, at the
opening of every new parliament. So likewife are the other
privileges, of perfons, fervants, lands, and goods ; which are
immunities as antient as Edward the confeflbr, in whofe
laws r we find this precept, " adfynodos venientibus,Jtvefummo-
" nitiftnt,five per fe quid agendum habuerint,ftt fumina pax :" [ 165 ]
and fo too, in the old Gothic conftitutions, " extenditur haec
" pax etfecuritas ad quatuordectm dies t convocato regni fenatu 8 ."
This included formerly not only privilege from illegal
violence, but alfo from legal arrefts, and feizures by procefs
from the courts of law. And ftill to afiault by violence a
member of either houfe, or his menial fervant, is a high
contempt of Parliament, and there punifhed with the utmoft
feverity. It has likewife peculiar penalties annexed to it in
the courts of law, by the ftatutes 5 Hen. IV. c. 6. and
1 1 Hen. VI. c. 1 1. Neither can any member of either houfe
be arrefted and taken into cuftody, unlefs for fome indictable
offence, without a breach of the privilege of parliament.
BUT all other privileges which derogate from the common
law in matters of civil right, are now at an end, fave only
as to the freedom of the member's perfon j which in a peer
(by the privilege of peerage) is for ever facred and invio-
lable ; and in a commoner (by the privilege of parliament)
for forty days after every prorogation, and forty days before
the next appointed meeting l : which is now in effect as long
as the parliament fubfifts, it feldom being prorogued for more
T cap. 3. * Steirnh. de jure Gotb. 1. 3. c. 3. ' a Lev. 72.
(20) The privileges of domeftics, lands, and goods, are taken
away by 10 Geo. III. c. 50. (See p. 165.)
P 4 than
165 The RIGHTS BOOK I.
than fourfcore days at a time (21). As to all other privileges,
which obftruft the ordinary courfe of juftice, they were
reftrained by the ftatutes 12 W. III. c. 3., 2 & 3 Ann. c. 18.,
and ii Geo. II. c. 24. and are now totally abolifhed by
ftatute 10 Geo. III. c. 50., which enafts, that any fuit may at
any time be brought againft any peer or member of parlia-
ment, their fervants, or any other perfon entitled to privilege
of parliament ; which (hall not be impeached or delayed by
pretence of any fuch privilege ; except that the perfon of a
member of the houfe of commons fhall not thereby be fub-
jeed to any arreft of imprifonment. Likewife, for the bene-
fit of commerce, it is provided by ftatute 4 Geo. III. .33.
that any trader, having privilege of parliament, may be ferved
with legal procefs for any juft debt to the amount of ioo/.
and unlefs he make fatisfaftion within two months, it {hall
1 66 ] be deemed an a& of bankruptcy ; and that commiflions of
bankrupt may be iflued againft fuch privileged traders, in
like manner as againft any other.
THE only way by which courts of juftice could antiently
take cognizance of privilege of parliament was by writ of
privilege, in the nature of a fuperfedeas, to deliver the party
out of cuftody when arrefted in a civil fuit ". For when a
letter was written by the fpeaker to the judges, to flay
proceedings againft a privileged perfon, they rejected it as
contrary to their oath of office v . But fince the ftatute
12 W. III. c. 3. which enafts that no privileged perfon fhall
be fubjecT: to arreft or imprifonment, it hath been held that
u Dyer, 59. 4 Pryn. Srtv. Part. 757. v L atcb. 4 g ( Nojr< g 3<
( 21 ) It does not appear that the privilege from arreft is limited
to any precife time after a diflblution ; but it has been determined
by all the judges that it extends to a convenient time. ( Col. Pit's
cafe, 2 Str. 988.) Prynne is of opinion that it continued for the
number of days the member received wages after a diflblution,
which were in proportion to the diftance between his home and the
place where the parliament was held. 4 Parl Writs, 68.
fuch
Ch. 2. of PERSONS. 166
fuch arreft is irregular ab initio, and that the party may be
difcharged upon motion w . It is to be obferved, that there
is no precedent of any fuch writ of privilege, but only in
civil fuits ; and that the ftatute of I Jac. I. c. 13. and that
of king William (which remedy fome inconveniences arifing
from privilege of parliament) fpeak only of civil actions.
And therefore the claim of privilege hath been ufually
guarded with an exception as to the cafe of indictable
crimes x ; or as it hath been frequently exprefled, of treafon,
felony, and breach (or furety of the peace y . WTiereby
it feems to have been underftood that no privilege was al-
lowable to the members, their families, or fervants, in any
crime whatfoever : for all crimes are treated by the law as
being contra pacem domini regis. And inftances have not been
wanting, wherein privileged perfons have been convicted of
mifdemefnors, and committed, or profecuted to outlawry,
even in the middle of a feffion 2 ; which proceeding has after-
wards received the fandtion and approbation of parliament a .
To which may be added, that a few years ago, the cafe of
writing and publifhing feditious libels was refolved by both
houfes b not to be entitled to privilege (22) ; and that the [ 167 ]
reafons upon which that cafe proceeded c , extended equally to
every indictable offence. So that the chief, if not the only
privilege of parliament, in fuch cafes, feems to be the right
of receiving immediate information of the imprifonment or
detention of any member, with the reafon for which he is
detained: a practice that is daily ufed upon the flighteft
military accufations, preparatory to a trial by a court mar-
w Stra. 989. Lord Raym. 1461.
* Com. Journ. 17 Aug. 1641. * Com. Journ. 16 May 1726.
y 4 Inft. 25. Com. Journ. ao May b Com. Journ. 24 Nov., Lord's Journ,
1675. 29 Nov. 1763.
z Micb. 1 6 Ed-w. IF. in SeaccL e Lords' Proteft, ibid.
(22) The contrary had been determined a fliort time before in
the cafe of Mr. Wilkes by the unanimous judgment of lord Cam-
den and the court of common pleas. ^ Wilf. 251.
tialj
167 The RIGHTS BOOK I.
tial d 5 and which is recognized by the feveral temporary fta-
tutes for fufpending the habeas corpus aft c ; whereby it is
provided, that no member of either houfe fhall be detained
till the matter of which he (lands fufpected be firft com-
municated to the houfe of which he is a member, and the
confent of the faid houfe obtained for his commitment or
detaining. But yet the ufage has uniformly been, ever fince
the revolution, that the communication has been fubfequent
to the arreft.
THESE are the general heads of the laws and cuftoms re-
lating to parliament, confidered as one aggregate body. We
will next proceed to
IV. THE laws and cuftorns relating to the houfe of lords
in particular. Thefe, if we exclude their judicial capacity,
which will be more properly treated of in the third and fourth
books of thefe commentaries, will take up but little of our
time.
ONE very antient privilege is that declared by the charter
of the forest f , confirmed in parliament 9 Hen. III. j viz.
that every lord fpiritual or temporal fummoned to parliament,
and pafling through the king's forefts, may, both in going
and returning, kill one or two of the king's deer without
warrant j in view of the forefter if he be prefent, or on
blowing a horn if he be abfent : that he may not feem to
take the king's venifon by ftealth.
[ 1 68 ] IN the next place they have a right to be attended, and
conftantly are, by the judges of the court of king's bench
and common pleas, and fuch of the barons of the exchequer
as are of the degree of the coif, or have been made ferjeants
at law j as likewife by the king's learned counfel, being fer-
jeants, and by the mafters of the court of chancery ; for their
advice in point of law, and for the greater dignity of their
proceedings. The fecretaries of ft ate, with the attorney and
* Com. Journ. 70 Apr. 1762. f c. n.
* Particularly 17 G. II. C. 6,
folicitor-
Ch. 2. of PERSONS. 168
folicitor-general, were alfo ufed to attend the houfe of peers,
and have to this day (together with the judges, &c.) their
regular writs of fummons iffued out at the beginning of
every parliament 8 , ad traElandum et confilium impendendum,
though not ad confentiendum -, but, whenever of late years
they have been members of the houfe of commons h , their
attendance here hath fallen into difufe (23).
ANOTHER privilege is, that every peer, by licence ob-
tained from the king (24), may make another lord of parlia-
ment his proxy, to vote for him in his abfence '. A privilege,
8 Stat. 31 Hen. VIII. c. 10. Smith's h Sec Com. Journ. n Apr. 1614.
commonw. b. a. c. 3. Moor. 551. 4 Inft. 8 Feb. 1620. 10 Feb. 1625. 4 Inft. 48.
4. Hale of Parl. 140. ' Seld. baronage, p. I. c. i.
( 23 ) On account of this attendance there are feveral refolutions
before the reftoration, declaring the attorney -general incapable of
fitting among the commons. Sir Heneage Finch, member for the
univerfity of Oxford, afterwards lord Nottingham and chancellor,
was the firft attorney -general who enjoyed that privilege. Sim. 28.
(24) This licence has long ceafed in Ireland ; but the proxies in
the Englim houfe of lords are ftill entered in Latin ex licentid regit .
this created a doubt in Nov. 1788, whether the proxies in that par-
liament were legal on account of the king's illnefs ? ( I Ld. Mount.
342.) But this I conceive is now fo much a mere form, that the
licence may be prefumed. Proxies cannot be ufed in a committee.
(Ib. 106.) A proxy cannot fign a proteft in England, but he
could in Ireland. (2 Ib. 191.)
The order that no lord mould have more than two proxies was
made 2 Car. I., becaufe the duke of Buckingham had nolefs than
fourteen, (j Rvjb<w. 269.)
A fimilar order was made in Ireland during lord Stafford's lieu-
tenancy to correft a like abufe.
There is an inftance in Wight, 50, where a proxy is called litera
attornat&s ad parliamentum^ which it is in effect. The peer who has
the proxy is always called in Latin procurator. If a peer, after
appointing a proxy, appeared perfonally in parliament, his proxy is
revoked and annulled. ($ InJI. 13.) By the orders of the houfe,
no proxy mall vote upon a queftion of guilty or not guilty ; and a
fpiritual lord mall only be a proxy for a fpiritual lord, and a tem-
poral lord for a temporal. Two or more peers may be proxy to
1 68 We RIGHTS BOOK I.
which a member of the other houfe can by no means have, as
he is himfelf but a proxy for a multitude of other people k .
EACH peer has alfo a right, by leave of the houfe, when a
vote pafles contrary to his fentiments, to enter his diflent on
the journals of the houfe, with the reafons for fuch diflent ;
which is ufually ftyledhis proteft (25).
ALL bills likewife, that may in their confequences any
way affect the right of the peerage, are by the cuftom of
parliament to have their firft rife and beginning in the houfe
of peers, and to fuffer no changes or amendments in the
houfe of commons.
THERE is alfo one ftatute peculiarly relative to the houfe
of lords, 6 Ann. c. 23. which regulates the election of the
fixteen reprefentative peers of North Britain, in confequence
[ 169 ] of the twenty- fecond and twenty-third articles of the union ;
and for that purpofe prefcribes the oaths, fsfc. to be taken
by the electors , directs the mode of ballotting ; prohibits
the peers electing from being attended in an unufual man-
ner; and exprefsly provides, that no other matter {hall be
treated of in that afTembly, fave only the election, on pain of
incurring a praemunire.
V. THE peculiar laws and cuftoms of the houfe of
commons relate principally to the railing of taxes, and the
elections of members to ferve in parliament.
k 4 Inft. iz.
one abfent peer ; but lord Coke is of opinion (4 Inft. 12.) that
they cannot vote unlefs they all concur, i Woodd. 41.
In antient times a commoner might have acted as the proxy of a
peer in the houfe of lords. See the memorable cafe of fir Thomas
Hafey, clerk, related p. 175. n. 37. poft.
( 25 ) Lord Clarendon relates, that the firft inftances of protefts
with reafons in England were in 1641, before which time they
ufually only fet down their names as diflentient to a vote : the firft
regular proteft in Ireland was in 1662. (i Ld. Mountm. 402.)
FIRST,
Ch. 2. gf PERSONS. 169
FIRST, with regard to taxes : it is the antient indifputable
privilege and right of the houfe of commons, that all grants
of fubfidies or parliamentary aids do begin in their houfe,
and are firft beftowed by them l ; although their grants are
not effectual to all intents and purpofes, until they have the
aflent of the other two branches of the legiflature. The
general reafon given for this exclufive privilege of the houfe
of commons, is, that the fupplies are raifed upon the body of
the people, and therefore it is proper that they alone fhould
have the right of taxing themfelves. This reafon would be
unanfwerable, if the commons taxed none but themfelves :
but it is notorious that a very large {hare of property is in
the pofleffion of the houfe of lords : that this property is
equally taxable, and taxed, as the property of the commons ;
and therefore the commons not being the fole perfons taxed,
this cannot be the reafon of their having the fole right of
raifing and modelling the fupply. The true reafon, arifing
from the fpirit of our conftitution, feems to be this. The
lords being a permanent hereditary body, created at pleafure
by the king, are fuppofed more liable to be influenced by
the crown, and when once influenced to continue fo, than
the commons, who are a temporary elective body, freely
nominated by the people. It would therefore be extremely
dangerous to give the lords any power of framing new
taxes for the fubjedt ; it is fufficient that they have a power
of rejecting, if they think the commons top lavifti or impro-
vident in their grants. But fo unreafonably jealous are the [ 170 ]
commons of this valuable privilege, that herein they will not -
fuffer the other houfe to exert any power but that of reject-
ing ; they will not permit the leaft alteration or amendment
to be made by the lords to the mode of taxing the people by
a money bill ; under which appellation are included all
bills, by which money is directed to be raifed upon the fub-
jet, for any purpofe or in any fhape whatfoever ; either for
the exigencies of government, and collected from the king-
dom in general, as the land-tax j or for private benefit, and
collected
170 The RIGHTS BOOK!.
collefted in any particular diftrift, as by turnpikes, parifh
rates, and the like (26). Yet fir Matthew Hale m mentions
one cafe, founded on the practice of parliament in the reign
of Henry VI. n , wherein he thinks the lords may alter a
money bill : and that is, if the commons grant a tax, as that
of tonnage and poundage, for four years ,- and the lords alter
it to a lefs time, as for two years ; here, he fays, the bill need
not be fent back to the commons for their concurrence, but
may receive the royal afient without further ceremony ; for
the alteration of the lords is confiftent with the grant of the
commons. But fuch an experiment will hardly be repeated
by the lords, under the prefent improved idea of the privilege
of the houfe of commons, and, in any cafe where a money
bill is remanded to the commons, all amendments in the
mode of taxation are fure to be reje&ed.
NEXT with regard to the elections of knights, citizens,
and burgefles ; we may obferve, that herein confifts the
exercife of the democratical part of our conftitution : for in
a democracy there can be no exercife of Sovereignty but by
fuffrage, which is the declaration of the people's will. In all
m On parliaments, 65, 66. fee the anfwer to this cafe by fir He-
" Year -book. 33 Hen. VF. 17. But ueage Finch. Co. Journ. it Apr. 1671.
(26) This rule is now extended to all bills for canals, paving,
provifion for the poor, and to every bill in which tolls, rates, or
duties are ordered to be collected ; and alfo to all bills in which pe-
cuniary penalties and fines are impofed for offences. (3 Hatf. no.)
But it mould feem it is carried beyond its original fpirit and intent,
when the money raifed is not granted to the crown.
Upon the application of this rule, there have been many warm
contefts between the lords and commons, in which the latter feem
always to have prevailed. See many conferences colle&ed by Mr.
Hatfell, in his Appendix to the 3d vol.
In Appendix D, the conference of 20 and 22 April, 1671, the
general queftion is debated with infinite ability on both fides, but
particularly on the part of the commons in an argument drawn up
by fir Heneage Finch, then attorney-general.
democracies
Ch. 2. of PERSONS. 170
democracies therefore it is of the utmoft importance to
regulate by whom, and in what manner, the fuffrages are to
be given. And the Athenians were fo juftly jealous of this
prerogative, that a ftranger, who interfered in the aflemblies
of the people, was punifhed by their laws with death:
becaufe fuch a man was efteemed guilty of high treafon, by
ufurping thofe. rights of fovereignty, to which he had no [ 171
title. In England, where the people do not debate in a
collective body, but by reprefentation, the exercife of this
fovereignty confifts in the choice of reprefentatives. The
laws have therefore very ftrictly guarded againft ufurpation
or abufe of this power, by many falutary provifions, which
may be reduced to thefe three points, i . The qualifications
of the electors. 2. The qualifications of the elected. 3. The
proceedings at elections.
i. As to the qualifications of the electors. The true
reafon of requiring any qualification, with regard to property,
in voters, is to exclude fuch perfons as are in fo mean a fitu-
ation that they are efteemed to have no will of their own. If
thefe perfons had votes, they would be tempted to difpofe of
them under fome undue influence or other. This would
give a great, an artful, or a wealthy man, a larger (hare in
elections than is confident with general liberty. If it were
probable that every man would give his vote freely and
without influence of any kind, then, upon the true theory
and genuine principles of liberty, every member of the com-
munity, however poor, mould have a vote in electing thofe
delegates, to whofe charge is committed the difpofal of his
property, his liberty, and his life. But, fince that can hardly
be expected in perfons of indigent fortunes, or fuch as
are under the immediate dominion of others, all popular
ftates have been obliged to eftablifh certain qualifications ;
whereby fome who are fufpected to have no will of their
own, are excluded from voting, in order to fet other indi-
viduals, whofe wills may be fuppofed independent, more
thoroughly upon a level with each other.
AND this conftitution of fuffrages is framed upon a wifer
principle, with us, than either of the methods of voting, by
171 The RIGHTS BOOK I.
centuries or by tribes, among the Romans. In the method
by centuries, instituted by Servius Tullius, it was principally
property, and not numbers, that turned the fcale : in the
method by tribes, gradually introduced by the tribunes of the
people, numbers only were regarded, and property entirely
overlooked. Hence the laws paffed by the former method had
[ 172 ] ufually too great a tendency to aggrandize the patricians or
rich nobles -, and thofe of the latter had too much of a level-
ling principle. Our conftitution fleers between the two
extremes. Only fuch are entirely excluded, as can have no
will of their own : there is hardly a free agent to be found,
who is not entitled to a vote in fome place or other in the
kingdom. Nor is comparative wealth, or property, entirely
disregarded in elections ; for though the richeft man has only
one vote at one place, yet if his property be at all diffufed,
he has probably a right to vote at more places than one, and
therefore has many reprefentatives. This is the fpirit of our
conftitution : not that I afiert it is in fat quite fo perfect n
as I have here endeavoured to defcribe it j for, if any alter-
ation might be wifhed or fuggefted in the prefent frame of
parliaments, it mould be in favour of a more complete repre-
fentation of the people.
BUT to return to our qualifications ; and firft thofe of
electors for knights of the (hire. i. By ftatute 8 ,Hen. VI.
c. 7. and 10 Hen. VI. c. 2. (amended (27) by 14 Geo. III.
n The candid and intelligent reader time and a loofe ftate of national morals
will apply this obfervation to many other have too great a tendency to produce,
parts of the work before him, wherein The incurvations of practice are then
the conlVuution of our laws and govern- the mod notorious when compared with
ment are reprefented as nearly approach- the rectitude of the rule ; and to eluci-
ing to perfection; without defcendingto date the clearnefs of the fpring, conveys
the invidious talk of pointing out fuch the ftrongeft fatire on thofe who have
deviations and corruptions, as length of polluted or difturbed it.
( 27 ) The 14 Geo. III. c. 58. made the refidence of the ekaors
and the elected in their refpeftive counties, cities, and boroughs no
longer neceflary. It had been required from both by feveral
ftatutes, i Hen. V.c.i. 8 Hen, VI, c. 7. and 23 Hen. VI. c. 14.
Yet
Ch. 2. 0f PERSONS. 172
c. 58.) the knights of the {hire (hall be chofen of people
whereof every man {hall have freehold to the value of forty
{hillings by the year within the county ; which (by fubfequent
ftatutes) is to be clear of all charges and deductions except
parliamentary and parochial taxes (28). The knights of mires
are the representatives of the landholders, or landed intereft of
the kingdom : their electors muft therefore have eftates in
lands or tenements, within the county reprefented : thefe
eftates muft be freehold, that is, for term of life at leaft : be-
caufe beneficial leafes for long terms of years were not in ufe
at the making of thefe ftatutes, and copyholders were then
little better than villeins, abfolutely dependent upon their
lords : this freehold muft be of forty millings annual value :
becaufe that fum would then, with proper induftry, furnifh
all the neceflaries of life, and render the freeholder, if he [ 173 ]
Yet in the year 1620, it was determined by the houfe of com-
mons, that thefe ftatutes were only directory and not conclufory,
and the high ftieriff of Leicefterfhire was cenfured for not return-
ing one, who had a majority of votes, becaufe he was not refident
within the county.
The houfe declared him to be duly elected, and ordered the re-
turn to be amended. I Com. Journ. 515.
(28) The voter's evidence of the value muft be received at the
poll ; but it is not conclufive, and may be contradicted by other evi-
dence, upon a fcrutiny, or before a committee. The 7 & 8 W. III.
c. 25. exprefsly declares, that public taxes are not to be deemed
charges payable out of the eftate ; and therefore one would think
that the plain and obvious conftruftion would be, that wherever a
freeholder has an eftate which would yield him 40*. before thefe
taxes are paid, or for which he would receive a rent of 40*. if he
paid the taxes himfelf, he would have a right to vote ; yet a com-
mittee has decided, that when a tenant paid a rent lefs than 40*.
but paid parochial taxes, which added to the rent amounted to
more than 40*. the landlord had no right to vote. 2 Lud. 475.
Two committees have held that the intereft of a mortgage is a
charge, which if it reduces the value under 40^. takes away the
vote, though there is an intermediate decifion of a committee, in
which the contrary was, held. Jb. 467.
VOL. I. Q pleafed,
J73 The RIGHTS BOOK I.
pleafed, an independent man. For bifhop Fleetwood, in his
cbronicum preciofum, written at the beginning of the prefent cen-
tury, has fully proved forty {hillings in the reign of Henry VI.
to have been equal to twelve pounds per annum in the reign
of queen Anne ; and, as the value of money is very confider-
ably lowered fince the bifhop wrote, I think we may fairly
conclude, from this and other circumftances, that what was
equivalent to twelve pounds in his days is equivalent to twenty
at prefent. The other lefs important qualifications of the
electors for counties in England and Wales may be collected
from the ftatutes cited in the margin ; which direct, 2. That
no perfon under twenty-one years of age fhall be capable of
voting for any member. This extends to all forts of mem-
bers, as well for boroughs as counties ; as does alfo the next,
viz. 3. That no perfon convicted of perjury, or fubornation
of perjury, fhall be capable of voting in any election. 4. That
no perfon fhall vote in right of any freehold, granted to him
fraudulently to qualify him to vote. Fraudulent grants are
fuch as contain an agreement to re-convey, or to defeat the
eftate granted ; which agreements are made void, and the
eftate is abfolutely vefted in the perfon to whom it is fo
granted (29). And to guard the better againft fuch frauds,
it is farther provided, 5. That every voter fhall have been in
the actual pofleffion, or receipt of the profits, of his freehold
to his own ufe for twelve calendar months before ; except it
came to him by defcent, marriage fettlement, will, or pro-
motion to a benefice or office. 6. That no perfon fhall vote
in refpeft of an annuity or rent-charge, unlefs regiftered with
the clerk of the peace twelve calendar months before (30).
7 & 8 W. Hire. 15. 10 Ann. c. 23. a Geo.II. c. ai. 18 Gco.II. c. 18.
31 Geo. II. c. 14. 3 Geo. III. c. 44.
- (29) And every perfon, who (hall prepare or execute fuch con-
veyance, or who fhall give his vote under it, fhall forfeit 4O/.
\QAnn. c. 23. / I.
(30) It muft be an annuity or rent-charge iffuing out of a free-
hold eftate: and if it accrues or devolves by operation of law
within
Ch. a. of PERSONS.
7. That in mortgaged or truft eftates, the perfon in poffeffion
under the above-mentioned reftri&ions, {hall have the vote.
8. That only one perfon {hall be admitted to vote for any one
houfe or tenement, to prevent the fplitting of freeholds (31).
within a year of the election, a certificate of it muft be entered
with the clerk of the peace before the firft day of the election.
3 Geo. III. c. 24. Heyw. 145.
(31) This is true only when a freehold eftate is fplit and divided
by the grantor in order to multiply votes and for election purpofes.
It would be highly unreafonable and abfurd to fuppofe (though it
has been fo contended) that it extends to every cafe, where a perfon
fairly and without any particular view to an election purchafes a
part of a greater eftate. It is part of the freeholder's oath that the
eftate has not been granted to him fraudulently, on purpofe to qua-
lify him to give his vote. The one vote, I prefume, was intended
for the part retained by the grantor, for if the whole had been
granted out thus fraudulently, no vote at all could have been given
for it. See this fubject treated fully in Mr. Heywood's Law of
Elect. 99. It cannot, I mould think, be confidered a fraudulent
grant under any ftatute, if a perfon mould purchafe an eftate merely
for the fake of the vote, if he buys it absolutely and without any
refervation, or fecret agreement between the grantor and himfelf.
But it never has been fuppofed that this ftatute extends to cafes
which arife from operation of law, as devifes, defcents, &c. ad if
an eftate mould defcend to any number of females, the hufband of
each would have a right to vote, if his intereft amounted to 40*.
a year.
A hufband may vote for his wife's right of dower from her for-
mer hufband's eftate, without an actual affignment of it by metes
and bounds. 20 Geo. III. c. 17. /. 12.
But it has been determined that a member of a corporation ag-
gregate cannot vote in right of an eftate belonging to the corpora-
tion. Heyw. 71.
Two more votes may be given fucceffively for the fame eftate
or intereft at the fame election ; as where a freeholder votes and
dies, his heir or devifee may afterwards vote at the fame election.
And it feems to be generally true, that where no length of poffef
fion is required by any act of parliament, the elector may be ad
mitted to vote, though his right accrued fmce the commencement
of the election, i Doug. 272. 2 Lud. 427.
Q 2 9. That
173 The RIGHTS BOOK I.
9. That no eftate (hall qualify a voter, unlefs the eftate has
been aflefled to fome land-tax aid, at leaft twelve months be-
C l?4 ] fore the ele&ion (32). 10. That no tenant by copy of court
roll fhall be permitted to vote as a freeholder. Thus much
for the electors in counties (33).
As for the electors of citizens and burgeffes, thefe are
fuppofed to be the mercantile part or trading intereft of this
(32) This is altered by 20 Geo. III. c. 17. The eftate fhall be
aflefled to the land-tax fix months before the election, either in the
name of the voter or his tenant ; but if he has acquired it by mar-
riage, defcent, or other operation of law, in that cafe it muft have
been aflefled to the land-tax within two years before the election,
either in the name of the predeceflbr, or perfon through whom the
voter derives his title, or in the name of the tenant of fuch perfon.
And to remove a doubt which had arifen upon the conftruction
of 20 Geo. III. c. 17. the 30 Geo. III. c. 35. exprefsly declares,
that it is fufficient if either the name of the proprietor, or of the
occupier, be fpecified in the affeffment.
This requifite of afleffment was intended to prevent fraud and
confufion, by having a ready proof of the exiftence of the eftate
of the voter, and fome meafure of its value ; but it is itfelf per-
haps a greater evil than it was intended to remove ; for an omiffion
or irregularity in the afleffment operates as a disfranchifement.
Every freeholder, who wifhes to preferve the important privilege
of voting, muft carefully examine every year the afleffment, when
it is ftuck upon the church-door, to fee that he is duly affeffed :
and if he is not, he may appeal to the commiflioners, and he may
any time afterwards apply to the clerk of the peace, and upon pay-
ment of is. may examine the duplicate returned to the feffion ; but
it feems that he is then too late to correct an error, unlefs he has
previoufly appealed to the ccmmiflioners ; but from the judgment
of the commiflioners an appeal lies to the next quarter feffions.
(33) By 22 Geo. III. c. 41. no perfon employed in managing
or collecting the duties of excife, cuftoms, ftamps, fait, windows,
or houfes, or the revenue of the poft-office, fhall vote at any elec-
tion, and if fuch perfon prefumes to vote, he fhall forfeit zoo/.
This act doea not extend to freehold offices granted by letters
patent.
kingdom.
Ch. 2. ^PERSONS, 174
kingdom. But as trade is of a fluctuating nature, and feldom
long fixed in a place, it was formerly left to the crown to
fummon, pro re nata y the moft flourifhing towns to fend re-
prefentatives to parliament. So that as towns increafed in
trade, and grew populous, they were admitted to a mare in the
legiflature. But the misfortune is, that the deferted boroughs
continued to be fummoned, as well as thofe to whom their
trade and inhabitants were transferred ; except a few which
petitioned to be eafed of the expence, then ufual, of main-
taining their members : four millings a-day being allowed
for a knight of the mire, and two (hillings for a citizen or
burgefs ; which was the rate of wages eftablifhed in the reign
of Edward IIJ, q (34). Hence the members for boroughs now
o 4 Inft. 16.
(34) Lord Coke, in the page referred to by the learned Judge,
fays, that this rate of wages hath been time out of mind, and that
it is expreffed in many records ; and for example, refers to one
in the 46 Ed. III. here this allowance is made to one of the
knights for the county of Middlefex. But Mr. Prynne's fourth
Regifter of Parliamentary Writs is confined altnoft entirely to the
inveftigation of the fubject, and contains a very particular chro-
nological hiftory of the writ de expenfis militum, civium, et lurgen-
Jium, which was framed to enforce the payment of thefe wages.
Mr. Prynne is of opinion that thefe wages had no other origin than
that principle of natural equity and juftice, qui fentit commodum,
debetf entire et onus. (p-5)
I fhall endeavour to prove, upon a future occafion, that repre-
fentation at the firft was nothing more than the attendance of a part
of a number, who were individually bound to attend, and where
the attendance of the reft was difpenfed with ; and as all were
under the fame obligation to render this fervice, and it was left
to themfelves to determine which of them mould undertake it,
it became equitable that all mould contribute to the expence and
inconvenience incurred. And what Mr. Prynne informs us is
remarkable : " that the firft writs of this kind extant in our re-
" cords are coeval with our king's firft writs of fummons to
" eleft and fend knights, citizens, and burgefies, to parliament,
Q 3 " both
1 74 The RIGHTS BOOK I.
bear above a quadruple proportion to thofe for counties, and
the number of parliament men is increafed fince Fortefcue's
" both of them being firft invented, iffued, and recorded toge-
" ther in 49 Henry III. before which there are no memorials nor
" evidences of either of thofe writs in our hiftorians or records."
(p. 2.) The firft writs direct the fheriff to levy from the com-
munity, i. e. the electors of the country, and to pay the knights,
rationabiles exfenfas fuas in veniendo ad diflum parliamentum, ibidem
morandoy et exinde ad propria redeundo. And when the writs of
fummons were renewed in the 23d of Edw. I. thefe writs iffued
again in the fame form at the end of the parliament, and were con-
tinued in the fame manner till the 16 Edw. II. when Mr. Prynne
finds the " memorable writs" which firft reduced the expences of
the reprefentatives to a certain fum by the day, viz. qs. a day for
every knight, and is. for every citizen and burgefs ; and they
fpecified alfo the number of days for which this allowance was to be
made, being more or lefs according to the diftance between the place
of meeting in parliament and the member's refidence. When this
fum was firft afcertained in the writ, the parliament was held at
York, and therefore the members for Yorkfhire were only allowed
their wages for the number of days the parliament actually fat,
being fuppofed to incur no expence in returning to their refpective
homes ; but at the fame time, the members for the diftant coun-
ties had a proportionate allowance in addition. Though from this
time the number of days and a certain fum are fpecifically ex-
preffed in the writ, yet Mr. Prynne finds a few inftances after this,
where the allowance is a lefs fum ; and in one, where one of the
county members had but $s. a day, becaufe he was not, in fact, a
knight. But with thofe few exceptions, the fum and form con-
tinued with little or no variation. Mr. Prynne -conjectures, with
great appearance of reafon, that the members at that time enjoyed
the privilege of parliament only for the number of days for
which they were allowed wages, that being confidered a fuf-
ficient time for their return to their refpective dwellings, (p. 68.)
But this allowance, from its nature and origin, did not preclude
any other fpecific engagement or contract between the member and
his conftituents; and the editor of Glanville's Reports has given in
the preface, p. 23, the copy of a curious agreement between
John Strange the member for Dunwich and his electors, in the
3 Edw.
Ch. s. of PERSONS. 1^4
time, in the reign of Henry the fixth, from 300 to upwards of
500, exclufive of thofe for Scotland. The univerfities were in
3 Edwr. IV. 1463, in which the member covenants, " whether the
" parliament hold long time or fhort, or whether it fortune to be
" prorogued, that he will take for his wages only a cade and half
" a barrel of herrings, to be delivered by Chriftmas."
In Scotland the representation of the mires was introduced or
confirmed by the authority of the legiflature, in the feventh par-
liament of James I. anno 1427, and there it is at the fame time ex-
prefsly provided, that lt the commiffaries fall have coftage of them
" of ilk fchire, that awe compeirance in parliament." Murray's
Stat.
As the peers of parliament, who fat in their own right, were
not benefited by this reprefentation, it was not reafonable that
they mould contribute any thing to the expences of the knights
of the mire ; but by 12 Ric. II. c. 12. it was enafted, that lords
and fpiritual perfons who purchafed lands which were contribu-
tory to the expences of the knight, mould contribute in refpect of
fuch lands.
It is faid that Andrew Marvell, who was member for Hull
in the parliament after the Reftoration, was the laft perfon in
this country that received wages from his eonftituents. Two mil-
lings a day, the allowance to a burgefs, was fo confiderable a fum
in antient times, that there are many inftances where boroughs
petitioned to be excufed from fending members to parliament, re-
prefenting that they were engaged in building bridges or other
public works, and therefore unable to bear fuch an extraordinary
expence. (Pryn. on 4 Injl. 32.) And it is fomewhat remarkable,
that from the 33 Edw. III. and uniformly through the fire fucceed-
ing reigns, the fheriff of Lancafhire returned, nonfunt aliquot clvi-
tatss feu burgl Infra comltatcm Lancajlrie, de qulbus altqul elves vel
burgenfes ad diSum parllamentum venire debent feufolent, nee poffunt
proptsr eorum debllltatem & paupertatem. But from thefe exemp-
tions in antient times, and the new creations by the king's char-
ter, which commenced in the reign of Edw. IV. (who in the ijth
year of his reign granted to the borough of Wenlock the right of
fending one burgefs to parliament,) (Sim. 97.) the number of the
members of the houfe of commons perpetually varied till the
29 Car. II. who in that year granted, by his charter, to Newark,
Q 4 the
174 The RIGHTS BOOK!.
general not empowered to fend burgefles to parliament;
though once, in 28 Edw. I., when a parliament was fummoned,
to confider of the king's right to Scotland, there were iflued
writs which required the univerfity of Oxford to fend up four
or five, and that of Cambridge two or three, of their mod dif-
creet and learned lawyers for that purpofe q . But it was king
James the firft who indulged them with the permanent privi-
lege to fend conftantly two of their own body ; to ferve for
f Prynne Parl. Writs, 1.345.
the privilege of fending reprefentatives to parliament, which was
the laft time that this prerogative of the crown was exercifed.
( l Dougl. EL 99.) Since the beginning of the reign of Hen. VIII.
the number of the reprefentatives of the commons is nearly
doubled ; for in his firft parliament the houfe confifted only of 298
members : it does not appear that any place has loft its right of
fending reprefentatives fince that time ; and 260 have fince been
added by aft of parliament, or by the king's charter either cre-
ating new or reviving old boroughs. The legiflature added 27 for
Wales by 27 Hen. VIII. c. 26. ; 4 for the county and city of Chef-
ter by 34 Hen. VIII. c. 13. ; 4 for the county and city of Dur-
ham by 25 Car. II. c. 9". ; and 45 for Scotland by the aft of union ;
in all 80; and 1 80 have been added by charter : Hen. VIII. cre-
ated or reftored by charter - 4 See Pref. to Glanv. Rep.
Edw. VI. . 48
Mary ... - 21
Elizabeth 60
Ja.1. --- -27
Ch.I. - - - 18
1 80
Parliament has created 80
In the firft parliament of Hen. VIII. 298
By the union with Ireland - 100
In all 658 the prefent number.
In the firft parliament of Ja. I. the members of the upper houfe
were 78, of the lower 470. 5 Parl. Hi/I. 1 1.
thofe
Ch. 2. of PERSONS. 174
thofe fludents, who, though ufeful members of the commu-
nity, were neither concerned in the landed nor the trading in-
tereft ; and to protect in the legiflature the rights of the repub-
lic of letters. The right of election in boroughs is various,
depending entirely on the feveral charters, cuftoms, and confti-
tutions of the refpeUve places, which has occafioned infinite
difputes; though now by ftatute 2 Geo. II. c. 24. the right of [ 175 ]
voting for the future fhall be allowed according to the laft de-
termination of the houfe of commons concerning it (35). And
(35) That ftatute was merely retrofpective, or only made the
laft determination of the right prior to the ftatute conclufive, with-
out having any influence over decifions fubfequent to the ^ Geo. II.
And this provifion was omitted in Mr. Grenville's excellent aft,
fo that the fame queftion, refpecting the right of election in
fome places, was tried over again every new parliament : but to
fupply this defect, it was enacted by the 28 Geo. III. c. 52. that
whenever a committee mail be of opinion that the merits of a
petition depend upon a queftion refpecting the right of election,
or the appointment of the returning officer, they mall require the
counfel of the refpective parties, to deliver a ftatement of the right
for which they contend, and the committee {hall then report
to the houfe thofe ftatements with their judgment thereupon ;
and if no perfon petition within a twelvemonth, or within four-
teen days after the commencement of the next feffion, to oppofe
fuch judgment, it is final and conclufive for ever. But if fuch a
petition be prefented, then, before the day appointed for the
confederation of it, any other perfon, upon his petition, may be
admitted to defend the judgment ; and a fecond committee fhall be
appointed exactly in the fame manner as the firft, and the decifion
of that committee puts an end to all future litigation upon the
point in queftion.
The 28 Geo. III. c. 52. requires, that the fpaceof 14 days fhall
intervene between the day of prefenting the petition and the day
appointed for the confideration of it ; and this had been conftrued
to extend to petitions which are renewed in every fubfequent
feflions : the 34 Geo. III. c. 83. therefore provides, that every
fuch renewed petition fhall be prefented within fourteen days after
the commencement of the fubfequent feflions, but that the hearing
of
1^5 Tb* RIGHTS Book I.
by ftatute 3 Geo. III. c. 1 5. no freeman of any city or borough
(other than fuch as claim by birth, marriage, or fervitude)
fhall be entitled to vote therein, unlefs he hath been admitted
to his freedom twelve calendar months before (36).
of it may be appointed on any day beyond fourteen days after it
is fo prefented.
(36) This is called the Durham aft, and it was occafioned by
the corporation of Durham having, upon the eve of an eleftion,
in order to ferve one of the candidates, admitted 215 honorary
freemen. Some corporations have the power of admitting hono-
rary freemen, viz. perfons who, without any previous claim or
pretenfion, are admitted to all the franchifes of the corporation.
The Durham aft is confined to perfons of that defcription folely.
It has frequently been contended, that if honorary freemen are
created for the occafwn, that is, merely for an eleftion purpofe,
it is a fraud upon the rights of eleftion ; and that by the common
law, as in other cafes of fraud, the admiflion and all the confe-
quences would be null and void ; that within the year, by the
ftatute, fraud was prefumed ; but that after that time, the ftatute
left the necefiity of proving it upon thofe who imputed it. But in
the Bedford cafe (2 Doug. 91.), the committee were clearly of
opinion, that the objeftion of occafionality did not lie againft
freemen made above a year before the eleftion.
No length of poffeflion is required from voters in burgage-
tenure boroughs. There are about twenty-nine burgage-tenure
boroughs in England. ( i Doug. 224.) In thefe the right of vot-
ing is annexed to fome tenement, houfe, or fpot of ground, upon
which a houfe*in ancient times has flood. Any number of thefe
burgage-tenure eflates may be purchafed by one perfon ; which,
at any time before a contefted eleftion, may be conveyed to fo
many of his frienda, who would each in confequence have a right
to vote.
By the 26 Geo. III. c. ico. it is enafted, that in boroughs
where the houfeholders or inhabitants of any defcription claim to
eleft, no perfon fhall have a right to vote as fuch inhabitant, unlefs
he has actually been refident in the borough fix months previous
to the day on which he tenders his vote.
2. NEXT,
Ch. 2. of PS&.80W*. 175
2. NEXT, as to the qualifications of petfons to be de&td
members of the houfe of commons. Some of thefe depend
upon the law and cuftom of parliament, declared by the houfe
of commons r ; others upon certain ftatutes. And from thefe
it appears, i. That they muft not be aliens born % or minors l .
2. That they muft not be any of the twelve judges", becaufe
they fit in the lords' houfe ; nor of the clergy w , for they fit
in the convocation (37) ; nor perfons attainted of treafon or
* 4 Inih 47, 48. Comm. Jourtt. 9 Nov. 1605.
See pag. 162. w Gomm. Journ. 13 Oft. 1553. 8 Feb.
' Ibid. 1620. I? Jan. 1661.
(37) It was decided by a committee of the houfe of commons
in the cafe of Newport in 1785, that a gentleman who had been
regularly admitted to deacon's orders, was capable of being a mem-
ber of that houfe. ( See 2 Lud. 269. ) Many of the arguments in
that cafe may be urged with equal force for the admiflion and ex-
clufion of a perfon in prieft's orders. The chief authorities for the
exclufion of the clergy are the entries in the commons' journals re-
ferred to by the learned judge in the notes ; in the firft two of which
this reafon is afligned, viz. that the perfons returned being clerks,
they have or might have a voice in the houfe of convocation. And
lord Coke alfo fays (4 Injl. 47. ), that " none of the clergy, though
" they be of the loweft order, are eligible, becaufe they are of an-
*' other body, viz. of the convocation ;" and he refers to the firft
entry in the commons' journals. Befides thefe authorities, there are
canons of the church which prohibit the clergy from voluntarily
relinqui/bing the office of a deacon or mlni/ler, and from ufmg them-
felves in the courie of their lives as laymen, and from exerciftng fecu-
larjurifdiftions. (i Gibf. Cod. 180. 184.) Mr. Wooddefon has ob-
ferved that the argument from the convocation ought not to be urged
againft the unbeneficed clergy, as none but the beneficed clergy voted
for the proctors or reprefentatives in convocation. ( I Wood. 47. )
This reafon for difqualifying the inferior clergy from fitting
in the houfe of commons, would extend to the exclufion of the
bifhop from the houfe of lords. It happens not unfrequently that
a peerage defcends to a clergyman in prieft's orders : and it has
never been fuppofed that this facred character, although he fliould
retain a benefice, would difable him from taking his feat in the
upper
175 The RIGHTS BOOK I,
felony*, for they are unfit to fit any where. 3. That flieriffs of
counties, and mayors and bailiffs of boroughs, are not eligible
x Com. Journ. 21 Jan. 1580. 4 Inft. 47.
upper houfe. And the argument is ftronger when we confider
that, in the origin of our parliaments, the qualifications of the mem-
bers of the two houfes were precifely the fame, viz. land held in
capite of the king. Until the Reformation, 29 of the regular clergy,
abbots and priors, who were dead in law to mod other purpofes,
had feats in the houfe of lords, in confequence of the lands which
they held of the crown. In Scotland the barons and commiffioners
of fliires fat together and conftituted one eftate. It would have
been unaccountable if holy orders by the common law had excluded
one part of that eftate from parliament and not the other ; but
both in Scotland and Ireland the clergy were declared ineligible
by ftatute ; which affords an inference that, without the autho-
rity of an aft of parliament, they would of common right have
participated this privilege with other fubjefts. ( Wight, 293. i Ld.
Mountm. 50.) The argument drawn from the fitting in the con-
vocation has been called a new pretence in the time of queen Mary,
in order to expel fome proteftant clergy from the houfe. (Hody,
Conv. 429.) There is a memorable inftance in the time of
Richard II. of a clergyman who fignalized himfelf in the houfe of
commons ; he is called fir Thomas Haxey, clerk ; he brought in a
bill, which pafled the commons, to leffen the expences of the king,
and to remove bifhops and ladies from the court ; for which the
commons were obliged to make conceffions, and to furrender the
author of the bill to the king ; and he was afterwards condemned
by the parliament to die as a traitor, but his life was fpared at the
interceffion of the bifhops becaufe he was a clergyman. ( Rot. Par!.
20 R. 2. N 1 6. and 23.) Theboldnefs of his conduct proves that
he had no fufpicion that his title to a feat in parliament could
be queftioned. With regard to the canons, they feem to have as
little weight as the argument drawn from the convocation ; for
they prove nothing by proving too much ; for thefe canons, if
available, would alfo preclude the clergy from acting in the com-
miffion of the peace, a fecular jurifdiftion which they have long
exercifed. If the clergy were eligible prior to, or independent of
the canons, then the validity of them may be juftly queftioned,
even of thofe made antecedent to 25 Henry VII I. ( fee ante, p. 83. )
for
Ch. i. of PERSONS. 175
in their refpe&ive jurifdi&ions, as being returning officers y ;
but that the fheriffs of one county are eligible to be knights of
y Bro. Air. t. parliament, 7. Com. 24 Mar. 1620. 2. 4. 15 Jun. 17 Nov.
Journ. 25 June, 1604. 14 Apr. 1614. 1685. Hal. of parl. 114.
for perfons who were eligible might in all cafes, and may (till in fome,
be compelled to ferve in parliament againft their confent (i Doug.
EL Cafes, 284. ) ; and no fet of men ought to be allowed to difable
themfelves and deprive their country of their fer vices by any laws
of their own, which are not exprefsly confirmed by the authority
of the legiflature. The objection to a clergyman's eligibility does
not feem to be much ftronger even when he is beneficed ; for, from
the refidence enforced by the fpiritual judge, the 9th ch. of the
articuli cler'i 9 Ed. II. exempts and privileges thofe who are en-
gaged in the fervice of the king and commonwealth ; nee debet did
tenders in prejudicium ecclejlajllcte libertatis, quod pro rege et republica
necejjarium invenitur ; which Lord Coke declares is worthy to be
written in letters of gold. (2 Injl. 625.) An attendance in parlia-
ment is pre-eminently pro rege et republica necejjarium^ With regard
to the refidence required by the 21 Hen. VIII. c. 13. I conceive
that important rights and franchifes are not loft or deftroyed merely
becaufe they become in fome degree inconfiftent with the provifions
of a new ftatute, which is entirely filent refpe&ing them; if
that were the cafe, the beneficed clergy have alfo loft their capacity
to fit in the convocation ; for though the ftatute makes exception
in fome cafes of abfence, as upon pilgrimages and the king's fer-
vice abroad, yet there is no exception for attendance upon the
convocation. But even when the clergy were permitted to tax
themfelves in convocation, that circumftance was very inadequate
to bar them from electing or being elected to parliament. Tax-
ation is certainly an important branch of legiflation ; yet it is far
from the whole concern of that power which fuperintends and
protefts our lives, liberty, and property. When the clergy ceafed
to tax themfelves, the reafon for their fharing in the rights and
privileges of reprefentation was ftrengthened, but not created.
After the clergy granted the laft fubfidy in convocation in 1663,
and were afterwards taxed in parliament, as if this alone had
precluded them from a fhare of parliamentary reprefentation, they
tendered their votes in right of their glebes at county elections,
which have ever fince been received with tacit approbation. But
the
175 The RIGHTS BOOK I.
another 11 (38). 4. That, iq ftriclnefs, all members ought to
have been inhabitants of the places for which they are chofen a :
z 4 Inft. 48. Whitelocke of parl. ch. Stat. i Hen. V. p. i. 43 Hen. VI.
99, 100, 101. c. 15.
the capacity to cleft and to be ele&ed being originally the fame,
when you take away an obftru&ion from the one, you remove it
alfo from the other, unlefs fome exprefs law has fuperinduced a
farther impediment : but I apprehend that the reafon that the
clergy, having no other lands than their glebes, never voted nor
were ele&ed in antient times, did not in any degree depend either
upon taxation or the convocation ; but that it was owing folely to
the tenure of their glebe land, viz. frankalmoign, which exempted
them from attendance on the courts of the king, lords, and flieriffs
(2 Bl. 101.); and even if they held other lands, holy orders ex-
empted them by the common law from fecular fervices and tem-
poral offices; and this was confirmed by magna charta and the
ftatute of Marlbridge. ( 2 Injl. 3. & 121.) This was an exemption,
and not an exclufion : but what are now important rights, were
originally confidered duties and burdens : it is not therefore ftrange,
that the clergy mould avail themfelves of this privilege till the dif-
ufer became regarded as an incapacity. Their glebe lands are, no
doubt, freeholds under the 8 Hen. VI. c. 7. ; and when they were
admitted to vote for reprefentatives in right of thefe freeholds, it
followed as a confequence, that they were alfo eligible to reprefent,
unlefs fome better authority can be produced for their exclufion
than merely difufe, or their having a voice in the convocation,
where they no longer tax themfelves, or their being prohibited by
canons, which in other inftances are difregarded, and which pro-
bably could never be thought to be obligatory upon the parliament,
This was the note in the two preceding editions : but fmce the
publication of the laft, Mr. John Home Tooke, a gentleman who
had taken prieft's orders early in life, but who had long ceafed to
officiate, or even to appear as a clergyman, was returned for Old
Sarum. No petition being prefented within the time limited by
Grenville's aft, one of the members moved that a committee might
be appointed to fearch for precedents refpedling the eligibility of
the clergy into the houfe of commons.
The committee afterwards reported, that there are few inftances
with particular additions till the 8 Hen. IV., for then the pradice
of
Ch. 2. of PERSONS. 175
but this, having been long disregarded, was at length entirely
repealed by ftatute 14 Geo. III. c. 58. 5. That np. perfons
of returning citizens and burgefles by indentures annexed to the
writ firft prevailed, yet they find five, with the addition of clericut.
The committee ttate alfo. that no fuch name as fir Thomas
Haxey exifts in the returns of 20 Ric. II. which are perfect and
extant in the Tower ; and they ftate theinftances referred to above
by the learned Judge.
The rolls of parliament cited in this note, ftate that the king
demanded, Le noun de cellui, qu'i ballla as d'it% communes la dite
bille. But it certainly appears by the following record in Rymer's
Fadera, torn. vii. p. 844. that he was not a member of the houfe
of commons, but the proxy of the earl of Nottingham in the houfe
of lords ; at that time, commoners might aft as the proxies of
peers. Thomas comes Marefcallus et Nottingham^, Capitaneus villa
regis Calejji, qut in obfequio regis in partibus Picarditt fuper falvd
cujlodid ejufdem villa moratur, habet Hteras regis de generali attor-
natu,fub nominibus Willidmi Bagot chevalier, et Thomte Haxey clerici,
per unum annum duraturas.
Tejle rege apud Calefium tertio die Oftobris. Cancellarius recepit
attornatum.
Although from this record it is manifeft that Haxey was not a
member of the houfe of commons, yet his cafe furnifhes this ob-
fervation, viz. that if any prohibition in the canon law would have
prevented him from being a reprefentative of a county or a
borough in the houfe of commons, the fame prohibition would
have prevented him from exercifing the lay functions of a temporal
peer in the houfe of lords.
When the queftion of the eligibility of the clergy was difcufled
in the houfe of commons, it was propofed by the prime minifter,
that a bill mould be brought in to declare the clergy ineligible,
and by that means to remove all doubts and queftions in future.
But ftill the debate was continued in both houfes, whether this
ftatute would be declaratory of what was the law, or introductory
of a new law. Thofe who maintained the ineligibility of the
clergy drew their arguments chiefly from the canon law ; the op-
pofite party, particularly lord Thurlow, adopted moft of the
arguments in this note : fandioned by the approbation of that
learned
'75
The RIGHTS BOOK I.
concerned in the management of any duties or taxes created
fince 1692, except the commiflioners of the treafury b , nor
any of the officers following , viz. commiflioners of prizes,
tranfports, fickand wounded, wine licences, navy, and victual-
ling ; fecretaries or receivers of prizes ; comptrollers of the
army accounts ; agents for regiments -, governors of plant-
ations and their deputies ; officers of Minorca or Gibraltar ;
officers of the excife and cuftoms ; clerks or deputies in the
h Stat. 5 & 6 W. & M. c. 7. 12 & 13 W. HI. c. 10. 6 Ann. c. 7.
c Stat. ii & 12 W. HI. c. 2. 15 Geo. II. c. 22.
learned and venerable peer, the Editor with proud fatisfa&ion re-
annexes it to the works of fir William Blackftone.
But the moft ftrenuous advocates for the admiffibility of the
clergy by the common law, will not neceflarily object to their ex-
clufion by an aft of the legiflature. They were fo excluded from
the parliaments of Scotland and Ireland. And perhaps it may be
juftly obferved, that found policy and the moft important interefts
of fociety require, that the ambition of a clergyman mould be con-
fined to his own profeflion, and that piety and learning mould be his
fureft recommendation to advancement.
By the 41 Geo. III. 0.73., intituled, an aft to remove doubts
refpe&ing the eligibility of perfons in holy orders to fit in the
houfe of commons, it was declared and enafted, that no perfon hav-
ing been ordained to the office of prieft or deacon, is or (hall be
capable of being elected to ferve in parliament as a member of the
houfe of commons ; and if any fuch perfon mail fit in the houfe,
he mall forfeit 5<DO/. a day, and be incapable of holding any pre-
ferment or office under his majefty. But the ftatute was not to
extend to the members of the houfe during that parliament.
(38) Two decifiona of committees are agreeable to what is ad-
vanced in the text. In the firft it was determined that the fheriff
of Berkmire could not be elected for Abingdon, a borough within
that county (i Doug. 419.) : in the fecond, that the fheriff of
Hampfhire could be elected for the town of Southampton within
that county, becaufe Southampton is a county of itfelf, and is as
independent of Hampfhire as. of any other county. 4 Doug. 87.
feveral
Ch. 2. of PERSONS. 176
feveral offices of the treafury, exchequer, navy, vi&ualling,
admiralty, pay of the army or navy, fecretaries of ftate, fait,
(lamps, appeals, wine licences, hackney coaches, hawkers
and pedlars,) nor any perfons that hold any nevr office under
the crown created fince 1 705 d , are capable of being elected or
fitting as members (39). 6. That no perfon having a penfion
under the crown during pleafure, or for any term of years, is
capable of being elected or fitting e . 7 . That if any member
accepts an office under the crown, except an officer in the
army or navy accepting a new commiffion, his feat is void ;
but fuch member is capable of being re-ele&ed f . 8. That all
d Stat. 6 Ann. c. 7. e Sut. 6 Ann. 0.7. i Ceo. 0.56. f Stat. 6 Ann. c. 7.
(39) All the perfons enumerated above are utterly incapable of
fitting in the houfe of commons, whilft they continue in their re-
fpedlive filiations ; and amongft thefe are all perfons who accept
from the crown any office created fince 1705. But by the z6th
fe&ion of the fame aft, 6 Ann. c. 7. if. any member (hall accept of
any office of profit from the crown, his election or feat becomes
void, but he may be re-elefted. This means an office of profit,
which was in exiftence prior to 1705.
The office or truft of a member of parliament cannot be refigned,
and every member is compellable to difcharge the duties of it,
unlefs he can mew fuch a caufe, as the houfe in its difcretion will
think a fufficient excufe for his non-attendance upon a call of the
houfe. The only way therefore of vacating a feat, is by accept-
ing a fituation, in confequence of which the law declares his feat
vacant. So where members wifh to vacate their feats and retire
from parliament, it is now ufual for the crown to grant them the
office of the ftewardfhip of the Chiltern Hundreds. Mr. Hatfell
obferves, that " the practice of accepting this nominal office,
" which began, he believes, only about the year 1750, has been
" now fo long acquiefced in, from its convenience to all parties,
" that it would be ridiculous to ftate any doubt about the legality
" of its proceedings; otherwife (he believes) it would be found
" very difficult, from the form of thefe appointments, to (hew
" that it is an office of profit under the crown." (2 Hatf. 41.)
But Mr. Hatfell himfelf raifes a doubt, which I do not think he
removes ; for furely no ufage fince 1750, or no ufage whatever, can
countervail the clear and exprefs words of an aft of parliament.
VOL. I. R knights
176 The RIGHTS BOOK!.
knights of the (hires fhall be actual knights, or fuch notable
efquires and gentlemen as have eftates fufEcient to be
knights (40), and by no means of the degree of yeomen g . This
is reduced to a flill greater certainty, by ordaining, 9. That
every knight of a (hire (hall have a clear eftate of freehold or
copyhold (41), to the value of fix hundred pounds per annum,
and every citizen and burgefs to the value of three hundred
pounds ; except f he eldeft fons of peers, and of perfons qua-
lified to be knights of (hires, and except the members for the
two univerfities h : which fomewhat balances the afcendant
which the boroughs have gained over the counties, by obliging
the trading intereft to make choice of landed men : and of
this qualification the member muft make oath, and give in the
particulars in writing, at the time of his taking his feat 1 (42).
But, fubject to thefe (landing reftridtions and difqualifications,
every fubject of the realm is eligible of common right: though
there are inftances, wherein perfons in particular circum-
ftances have forfeited that common right, and have been
declared ineligible for that parliament by a vote of the houfe of
* Stat. 23 Hen. VI. c. 15. h Stat. 9 Ann. c. 5. ' Stat. 33 Geo. II. c.2o.
(40) This, by the ftatute de militibus, i Ed. II. was 2O/.
a-year, and put in force againft thofe who had, 4O/. a-year till
1 6 Car. I. c. 1 6. See p. 404.
(41) Or mortgage, if the mortgagee has been feven years in
poffeffion.
(42) By 22 Geo. III. 0.45. no conjtraaor with the officers
of government, or with any other perfon for the fervice of the
public, fhall be capable of being elefted, or of fitting in the houfe,
as long as he holds any fuch contrad, or derives any benefit from
it. But this does not extend to contracts with corporations, or
with companies, which then confifted of ten partners, or to any
perfon to whom the intereft of fuch a contract fhall accrue by
marriage or operation of law for the firft twelve months. And if
any perfon difqualified by fuch a contract fhall fit in the houfe, he
(hall forfeit 500!. for every day ; and if any perfon who engages in
a contract with government, admits any member of parliament to
a (hare of it, he fhall forfeit 5oo/. to the profecutor.
commons,
Ch. 2. of PERSONS. 176
commons ', or for ever by an at of the legiflature k . But
it was an unconftitutional prohibition which was grounded on
an ordinance of the houfe of lords l t and inferted in the king's
writs, for the parliament holden at Coventry, 6 Hen. IV.
that no apprentice or other man of the law fhould be elected [ *77 ]
a knight of the (hire therein m : in return for which, our law
books and hiftorians n have branded this parliament with the
name of parliamentum indoEtum, or the lack-learning parlia-
ment ; and fir Edward Coke obferves with fome fpleen , that
there never was a good law made thereat.
3. THE third point, regarding elections, is the method of
proceeding therein. This is alfo regulated by the law of par-
liament, and the feveral ftatutes referred to in the margin 1 * :
all which I {hall blend together, and extraft out of them a
fummary account of the method of proceeding to elections.
As foon as the parliament is fummoned, the lord chancellor
(or if a vacancy happens during the fitting of parliament, the
fpeaker, by order of the houfe ; and without fuch order,
if a vacancy happens by death, or the member's becoming a
peer (44), in the time of a recefs for upward of twenty days)
' See page 163. & M. c. zo. 7 W. HI. c. 4. 7 & 8 W.
k Stat. jGeo. I. c. 28. III. c. 7. and 0.25. 10 & n W. III.
1 4 Inft. 10. 48. Pryn. plea for lords, c. 7. la & 13 W. III. c. 10. 6 Ann.
379. z Whitelocke, 359. 368. c. 23. 9 Ann. c. 5. to Ana. c. 19. and
m Pryn. on 4 Inft. i ?. c. 33. a Geo. II. c. 24. 8 Geo. II. c. 30.
n Walfing.^.D. 1405. 8 Geo. II. c. 18. 19 Geo. II. c. 8.
4 Inft. 48. 10 Geo. 1 1 1. c. 16. n Geo. III. &4Z.
P 7 Hen. IV. c. 15. 8 Hen. VI. 0.7. 14 Geo. III. c. 15. ij Geo. III. 0.36.
23 Hen. VI. c.i 4. i W. & M. ft. i. 28 Geo. III. c. 52.
c.i. 2W.&M.ft. i. c.7. 5&6W.
(44) With regard to a vacancy by death or a peerage during
a recefs, the 24 Geo. III. f. 2. c. 26. which repeals the former
ftatutes upon this fubjeft, provides, that if during any recefs any
two members give notice to the fpeaker by a certificate under their
hands, that there is a vacancy by death, or that a writ of fummons
has iffued under the great feal to call up any member to the
houfe of lords, the fpeaker (hall forthwith give notice of it to be
R 2 inferted
177 Tbt RIGHTS BOOK I.
fends his warrant to the clerk of the crown in chancery ;
who thereupon iffues out writs to the fheriff of every county,
for the election of all the members to ferve for that county,
and every city and borough therein. Within three days (45)
after the receipt of this writ, the fheriff is to fend his precept,
under his feal, to the proper returning officers of the cities
and boroughs, commanding them to elet their members :
and the faid returning officers are to proceed to elelion within
eight days from the receipt of the precept, giving four days'
notice of the fame q ; and to return the perfons chofen, toge-
ther with the precept, to the fheriff.
BUT elections of knights of the (hire mud be proceeded to
by the fheriffs themfelves in perfon, at the next county court
C '78 ] that (hall happen after the delivery of the writ. The county
Court is a court held every month or oftener by the {heriff,
intended to try little caufes not exceeding the value of forty
i In the borough of New Shorelum n Geo. III. c. 55. the eledtion muft be
in Suffer, wherein certain freeholders of within tivelve days, with eight days' no-^
the county are entitled to vote by iiatute lice of the fame.
inferted in the Gazette ; and at the end of fourteen days after fuch
infertion, he fhall iffue his warrant to the clerk of the crown, com-
manding him to make out a new writ for the eledion of another
member. But this fhall not extend to any cafe where there is a
petition depending concerning fuch vacant feat, or where the writ
for the election of the member fo vacating had not been returned
fifteen days before the end of the laft fitting of the houfe, or where
the new writ cannot iffue before the next meeting of the houfe for
the difpatch of bufmefs. And to prevent any impediment in the
execution of this ad by the fpeaker's abfence from the kingdom,
or by the vacancy of his feat, at the beginning of every .parliament
he fhall appoint any number of members from three to feven in-
clufive, and fhall publifh the appointment in the Gazette. Thefe
members, in the abfence of the fpeaker, fhall have the fame
authority as is given to him by this ftatute. Thefe are the only
cafes provided for by ad of parliament ; fo for any other fpecies
of vacancy no writ can iffue during a recefs.
(45) The officer of the cinque ports has fix days by 10 &"i i
W. III. c. 7.
fhillings,
Ch. 2. of PERSONS. 178
(hillings, in what part of the county he pleafes to appoint for
that purpofe : but for the ele&ion of knights of the fhire it
muft be held at the moft ufual place. If the county court
falls upon the day of delivering the writ, or within fix days
after, the fheriff may adjourn the court and election to fome
other convenient time, not longer than fixteen days, nor
Ihorter than ten j but he cannot alter the place, without the
confent of all the candidates ; and, in all fuch cafes, ten days*
public notice muft be given of the time and place of the
election (46).
AND, as it is effential to the very being of parliament, that
elections fhould be abfolutely free, therefore all undue influ-
ences upon the electors are illegal, and ftrongly prohibited (47).
(46) This is altered by 25 Geo. III. c. 84. which enads, that
in every county, the fheriff having indorfcd on the back of the
writ the day en which he receives it, (hall, within two days after
the receipt thereof, caufe proclamation to be made at the place
where the enfuing election ought by law to be held, of a fpecial
county court to be there held, for the purpofe of fuch election
only, on any day, Sunday excepted, not later from the day of mak-
ing fuch proclamation than the i6th day, nor fooner than the loth ;
and that he mall proceed in fuch election at fuch fpecial county
court in the fame manner as if the faid election had been held at
a county court, or at an adjourned county court, according to the
former laws. And by the 33 Geo. III. c. 64. the proclamation
muft be made at the ufual place between the hours of eight o'clock
in the morning and four in the afternoon, from the 25th of October
to the 25th of March ; and in the reft of the year between eight
in the morning and fix in the afternoon.
(47) In fupport of this principle the 3 Ed. I. c. 5. is generally
cited : Et pur ceo que elections dement ejlres /ranches, le rot defende
fur fa grew forfeiture, que nul haut homme n'autre per polar des armes,
ne per menaces, ne dlflourbe de falre franche eleftlon. The principle
is good, and ought to be applied to all elections ; but the elections
which the legiflature had then in contemplation, were thofe of the
fheriff, coroner, &c. ; for the houfe of commons, and of courfe
elections of it's members, had not then exiftence. And as it would
be repugnant to this principle and to found policy, it is decided,
R 3 that
178 The RIGHTS BOOK I-
For Mr. Locke r ranks it among thofe breaches of truft in the
executive magiftrate, which according to his notions amount
to a diflblution of the government, " if he employs the force,
" treafure, and offices of the fociety to corrupt the reprefent-
" atives, or openly to pre-engage the electors, and prescribe
" what manner of perfons (hall be chofen. For thus to re-
" gulate candidates and electors, and new -model the ways
of election, what is it (fays he) but to cut up the government
" by the roots, and poifon the very fountain of public fecu-
" rity?" As foon therefore as the time and place of election,
either in counties or boroughs, are fixed, all foldiers quar-
tered in the place are to remove, at leaft one day before the
election, to the diftance of two miles or more ; and not to re-
turn till one day after the poll is ended. Riots likewife have
been frequently determined to make an election void. By
vote alfo of the houfe of commons, to whom alone belongs
the power of determining contefted elections, no lord of
parliament, or lord lieutenant of a county, hath any right to
interfere in the election of commoners ; and, by ftatute, the
lord warden of the cinque ports fhall not recommend any
C *79 ] members there. If any officer of the excife, cuftoms, (lamps,
or certain other branches of the revenue, prefume to inter-
meddle in elections, by perfuading any voter, or difluading
him, he forfeits lool. and is difabled to hold any office.
THUS are the electors of one branch of the legiflature fe-
cured from any undue influence from either of the other
two, and from all external violence and compulfion. But the
greateft danger is that in which themfelves co-operate, by
the infamous practice of bribery and corruption. To prevent
which it is enacted, that no candidate fhall, after the date
(ufually called the tefte) of the writs (48), or after the va-
r On Gov. p. 2. aza.
that a wager between two electors upon the fuccefs of their re-
fpe&ive candidates is illegal and void. For, if it were permitted,
it would manifeftly corrupt the freedom of elections, i T. R. 55.
(48) Or after the ordering of the writs : that is, after the fign-
ng of the warrant to the chancellor for ifluing the writs. Sim. 1 65.
cancy,
Ch. 2. of PERSONS. 175
cancy, give any money or entertainment to his eleftors, or
promife to give any, either to particular perfons, or to the
place in general, in order to his being elecled : on pain of
being incapable to ferve for that place in parliament (49).
(49) This incapacity arifes from the 7 W. III. c. 4. commonly-
called the Treating Act, which enacts, that the candidate offending
againft that ftatute Jball be difabled and incapacitated upon fuch elec-
tion. The obvious meaning of thefe words and of the reft of the
ftatute is,, that treating vacates that election only, and that the
candidate is no way difqualified from being re-elected, and fitting
upon a fecond return. See the fecond cafe of Norwich, 1787,
3 Lud. 455. Though the contrary was determined in the cafe of
Honiton, 1782, ib. 162.
But after the general election in 1 796, the return of one of the
members for the borough of Southwark was declared void by a
committee, becaufe it was proved that he had treated during the
election. Upon that vacancy he offered himfelf again a candidate,
and having a majority of votes was returned as duly elected ; but
upon the petition of the other candidate, the next committee deter-
mined that the fitting member was ineligible, and that the petitioner
ought to hare been returned. And he took his feat accordingly.
It has been fuppofed, that the payment of travelling expences,
and a compenfation for lofs of time, were not treating or bribery
within this or any other ftatute : and a bill paffed the houfe of
commons to fubject fuch cafes to the penalties impofed by ^ Geo. II.
c. 24. upon perfons guilty of bribery. But this bill was rejected
in the houfe of lords by the oppofition of Lord Mansfield, who ftre-
nuoufly maintained that the bill was fuperfluous ; that fuch con-
duct, by the laws in being, was clearly illegal, and fubject, in a
court of law, to the penalties of bribery. (2 Lud. 67. ) Indeed
it is fo repugnant both to the letter and fpirit of thefe ftatutes,
that it is furprifmg that fuch a notion and practice mould ever
have prevailed. It is certainly to be regretted that any elector
mould be prevented by his poverty from exercifing a valuable pri-
vilege ; but it probably would be a much greater injury to the
country at large if it were deprived of the fervices of all gentlemen
of moderate fortune, by the legalizing of fuch a practice, even
with the moft equitable reftrictions, not to mention the door that
it might open to the groffeft impurity and corruption.
R 4 But
179 The RIGHTS BOOK I.
And if any money, gift, office, employment, or reward be
given or promifed to be given to any voter, at any time, in
order to influence him to give or withhold his vote, as well
he that takes as he that offers fuch bribe, forfeits 5oo/., and
is for ever difabled from voting and holding any office in any
corporation ; unlefs, before covi&ion, he will difcover fome
other offender of the fame kind, and then he is indemnified
for his own offence * (50). The firft inftance that occurs, of
1 In like manner the Julian law de lions; but if the peribn guilty convifl-
amlitu inflicted fines and infamy upon ed another offender, he was reftoied to
all who were guilty of corruption at elec- his credit again. Ff, 48. 14. I.
But Lord Ellenborough and Mr. Baron Thompfon have held at
Nifi Prius, that a reafonable compenfation for the lofs of time and
travelling expences is not illegal. 2 Pecl<w. 182.
In the feflions of 1806, Mr. Tierney brought in a bill to prevent
the candidates from conveying the eledlors at their expence. That
excellent bill was oppofed by Mr. Fox, who argued that it would
be injurious to the popular part of the government by reducing the
number of electors.
But furely the popular part of the government fuftains an infi-
nitely greater lofs from the diminution of the number of the elegi-
ble ; for many, by the prefent practice, are totally precluded from
ferving their country in parliament, whom the refident electors,
thofe who are befl acquainted with their merits, would think the
fitted objefts of their choice.
If an innkeeper furnifhes provifions to the voters, contrary to
the 7 W. Ill c. 4. though at the exprefs requeft or order of one of
the candidates, he cannot afterwards maintain an action againft that
candidate, as courts of juftice will not enforce the performance of a
contract made in direct violation of the general law of the country.
I Bof. & Pull. 264.
(50) This is ena&ed by 2 Geo. II. c. 24. explained and enlarged
by 9 Geo. II. c. 38. and 1 6 Geo. II. c. n. ; but thefe ftatutes do
not create any incapacity of fitting in the houfe, that depends
folely upon the treating aft mentioned in the preceding note.
It has been held that it is bribery if a candidate gives an
elcftor money to vote for him, though he afterwards votes for
another
Ch. 2. of PERSONS. 179
election bribery, was fo early as 13 EHz. when one Thomas
Longe (being a fimple man and of fmall capacity to ferve in
parliament) acknowledged that he had given the returning
officer and others of the borough for which he was chofen
four pounds to be returned member, and was for that premium
elected. But for this offence the borough was amerced (51),
the member was removed, and the officer fined and impri-
another ( 3 Burr. 1235) : and there can be no doubt, but it would
alfo be bribery in the voter ; for the words of the ftatute clearly
make the offence mutual. And it has been decided that fuch
vote will not be available to the perfon to whom it may after-
wards be given gratuitoufly ; for the elector fwears he has re-
ceived no money, gift, or reward, in order to give his vote ; and
an election ought not to depend upon a vote fo contaminated with
perjury, bribery, and treachery ; and the voter's previous con-
duct muft raife a ftrong fufpicion that he gives his vote rather
from the inducement of a higher bribe, than from the convic-
tion of his confcience. But the propriety of this decifion has
been queftioned by refpe&able authority. (2 Boug. 416.) An
inftance is given in 4 Doug. 366. of an action in which twenty-
two penalties, n,ooo/., were recovered againft one defendant.
But befides the penalties impofed by the legislature, bribery is a
crime at common law, and punifliable by indictment or Inform-
ation, though the court of king's bench will not in ordinary cafes
grant an information within two years, the time within which
an action may be brought for the penalties under the ftatute.
(3 Burr. 1335. I359-) But this rule does not affect a profecution
by an indictment, or by an information by the attorney-general,
who in one cafe was ordered by the houfe to profecute two gen-
tlemen who had procured themfelves to be returned by bribery ;
they were convicted, and fentenced by the court of king's bench
to pay each a fine of 1000 marks, and to be imprifoned fix months.
4 Doug. 292.
In an action for bribery, a perfon may be a witnefs to prove the
bribery, although he admits that he intends to avail himfelf of the
conviction in that action to protect himfelf as the firft difcoverer,
in an action brought againft him for the fame offence. 4 Eq/l, 1 80.
(51 ) Lord Mansfield obferved upon this, that there could be no
fine fet in the houfe of commons ; it muft have been in the ftar-
chamber
179 The RIGHTS BOOK. I.
foned '. But, as this pra&ice hath fmce taken much deeper
and more univerfal root, it hath occafioned the making of
thefe wholefome ftatutes ; to complete the efficacy of which,
there is nothing wanting but refolution and integrity to put
them in ftrict execution.
[ 1 80 1 UNDUE influence being thus (I wi(h the depravity of man-
kind would permit me to fay, effectually) guarded againft,
the election is to be proceeded to on the day appointed ; the
{heriff or other returning officer firft taking an oath againft
bribery, and for the due execution of his office. The can-
didates likewife, if required (52), muft fwear to their quali-
fication ; and the electors in counties to theirs ; and the
electors both in counties and boroughs are alfo compellable
to take the oath of abjuration and that againft bribery and
corruption. And it might not be amifs, if the members
elected were bound to take the latter oath, as well as the
former: which in all probability would be much more
effectual, than adminiftering it only to the electors (53).
'4111(1.23. HaleofParl.ua. Com. Journ. 10 and n May, 1.571.
chamber ( 3 Burr. 1336. ); but the journals of the commons on the
day referred to by the learned judge exprefsly ftate, that it is or-
dered by this houfe that a fine of 2O/. be aflefied upon the cor-
poration for their f aid lewd and JIanderous attempt.
(52) If any candidate, upon a reafonable requeft from another
candidate, or by two of the electors, either at the election, or at
any time before the return of the writ, {hall refufe to fwear to his
qualification, his elefiion (hall be void. (9 Ann. c. 5.)
( 53 ) All electors are compellable, before they vote, to take the
oaths of allegiance and fupremacy, 7 & 8 W. III. c. 27. But as
thefe oaths were frequently required from the electors by one of
the candidates for the purpofe of delay, it was ena&ed by the
34 G. III. c. 73. that, when a poll is demanded at any eleftion, the
returning officer may, at the requefl of any candidate, appoint two
perfons, (or a fufficient number,) at proper places, to adminifter
the oaths of allegiance and fupremacy, the declaration of fidelity,
the oath of abjuration, and the declaration or affirmation of the
effect thereof, to each eleftor before he tenders his vote. The
42 Geo.
Ch. 2. ^PERSONS. 180
THE ele&ion being clofed, the returning officer in boroughs
returns his precept to the fheriff, with the perfons elected by
the majority ; and the fheriff 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 meet-
ing, if it be a new parliament, or within fourteen days after
42 Geo. III. c. 62. empowers thefe perfons to adminifter all the
oaths, and to take all the affirmations in the cafe of quakers, re-
quired by any law or ftatute, and to certify the names of the electors
who have taken fuch oaths or made fuch affirmations. The expence
thereby incurred is to be borne equally by all the candidates. And
by the 25 Geo. III. c. 84. all electors for cities and boroughs fhall
fwear to their name, addition, or profeffion, and place of abode
and alfo, like freeholders in counties, that they believe they are of
the age of 21, and that they have not been polled before at that
election. And 'by the fame ftatute it is enacted, that if a poll is
demanded at any election for any county or place in England or
Wales, it mall commence either that day, or at the fartheft upon
the next, and fhall be continued from day to day (Sundays ex-
cepted ) until it be finifhed ; and it mall be kept open feven hours
at the leaft each day, between eight in the morning and eight at
night; but if it mould be continued till the I5th day, then the
returning officer {hall clofe the poll at or before three in the after-
noon, and mail immediately, or on the next day, publicly declare
the names of the perfons who have a majority of votes ; and he
fhall forthwith make a return accordingly, unlefs a fcrutiny is de-
manded by any candidate, or by two or more of the electors, and
he mall deem it neceflary to grant the fame, in which cafe it mail
be lawful for him to proceed thereupon ; but fo as that, in all cafes
of a general election, if he has the return of the writ, he fhall
caufe a return of the members to be filed in the crown office on or
before the day on which the writ is returnable. If he is a return-
ing officer acting under a precept, he fhall make a return of the
members at leaft fix days before the day of the return of the
writ : but if it is not a general election, then, in cafe of a fcru-
tiny, a return of the member fhall be made within 30 days after
the clofe of the poll. Upon a fcrutiny, the returning officer can-
not compel any witnefs to be fworn, though the ftatute gives him
power to adminifter an oath to thofe who confent to take it.
ii the
180 The RIGHTS BOOK I.
the election, if it be an occafional vacancy ; and this under
penalty of 5oo/. If the fheriff does not return fuch knights
only as are duly elected, he forfeits, by the old ftatutes of
Henry VI., ioo/. ; and the returning officer in boroughs for a
like falfe return 4o/. ; and they are befides liable to an aUon,
in which double damages (hall be recovered, by the later
ftatutes of king William : and any perfon bribing the return-
ing officer (haU alfo forfeit 3oo/. But the members returned
by him are the fitting members, until the houfe of commons,
upon petition, (hnll adjudge the return to be falfe and illegal.
The form and manner of proceeding upon fuch petition are
now regulated by ftatute (54) 10 Geo. III. c. 16. (amended by
(54) This ftatute is better known by the name of Grenville's
aft, and it has juftly conferred immortal honour upon it's author.
The feleft committees appointed purfuant to this ftatute, have exa-
mined and decided the important rights of eleftion with a degree of
purity and judicial difcrimination highly honourable to themfelves ;
and which were ftill more fatisfaftory to the public, from the re-
colleftion of the very different manner in which thefe queftions,
prior to 1770, had been treated by the houfe at large.
But this aft has been much improved by 25 Geo. III. c. 84.
and 28 Geo. III. c. 52. By thefe ftatutes any perfon may prefent
a petition complaining of an undue eleftion ; but one fubfcriber of
the petition muft enter into a recognizance, himfelf in 2oo/. withtwo
furetiesin ioo/. each, to appear and fupport his petition ; and then
the houfe {hall appoint fome day beyond 14 days after the com-
mencement of the feflion, or the return of the writ, and ftiall give
notice to the petitioners and the fitting members to attend the bar
of the houfe on that day by themfelves, their counfel or agents ; this
day, however, may be altered, but notice flrall be given of the new
day appointed. On the day fixed, if ioo members do not attend,
the houfe mall adjourn from day to day, except over Sundays, and
for any number of days over Chriftmasday, Whitfunday, and
Good Friday ; and when ioo or more members are prefent, the
houfe ftiall proceed to no other bufinefs except fwearing in members,
receiving reports from committees, amending a return, or attend-
ing his majefty or commiflioners in the houfe of lords. And by the
32 Geo. III. c. i. the houfe is enabled to receive a meffage from the
lords,
Ch. 2. of PEHSONS. 180
1 1 Geo. III. c. 42. and made perpetual by 14 Geo. III. c. 15.)
which directs the method of choofing by lot a felet committee
lords, and to proceed to any bufinefs that may be neceflary for the
profecution of an impeachment on the days appointed for the trial.
Then the names of all the members belonging to the houfe are put
into fix boxes or glaffes in equal numbers, and the clerk (hall draw
a name from each of the glaffes in rotation, which name mall be
read by the fpeaker, and if the perfon is prefent, and not difqua-
lified, it is put down : and in this manner they proceed, till forty -
nine fuch names are collected. But befides thefe forty-nine, each
party mail feleft, out of the whole number prefent, one perfon, who
(hall be the nominee of that party. Members who have voted at
that election, or who are petitioners, or are petitioned againft,
cannot ferve ; and perfons who are fixty years of age, or who have
ferved before, are excufed if they require it ; and others who can
mew any material reafon, may alfo be excufed by the indulgence of
the houfe. After 49 names are fo drawn, lifts of them mall be
given to the refpeftive parties, who (hall withdraw, and fhall.alter-
nately ftrikeoff one (the petitioners beginning:) till they are reduced
to 13; and thefe 13, with the two nominees, conftitute the feleft
committee. If there are three parties, they {hall alternately ftrike
off one ; and in that cafe the 1 3 (hall choofe the two nominees.
The members of the committee mail then be ordered by the
houfe to meet within 24 hours, and they cannot adjourn for more
than 24 hours, except over Sunday, Chriftmasday, and Good
Friday, without leave of the houfe ; and no member of the com-
mittee (hall abfent himfelf without the permiffion of the houfe.
The committee (hall not in any cafe proceed to bufinefs with fewer
than 1 3 members ; and they are diffolved if for three fucceffive days
of fitting their number is lefs than that, unlefs they have fat 14
days, and then they may proceed, though reduced to 12 j and
if 25 days, to 1 1 ; and they continue to fit notwithftanding a pro-
rogation of the parliament. All the fifteen members of the com-
mittee take a folemn oath in the houfe, that they will give a true
judgment according to the evidence, and every queftion is deter-
mined by a majority.
The committee may fend for witnefles and examine them upon
oath, a power which the houfe of commons does not poffefs ; and
9 if
i8o The RIGHTS BOOK I.
of fifteen members, who are fworn well and truly to try the
fame, and a true judgment to give according to the evidence.
And this abftraft of the proceedings at elections of knights,
f_ l8i ] citizens, and burgefles, concludes our enquiries into the laws
and cuftoms more peculiarly relative to the houfe of commons.
. VI. I PROCEED now, fixthly, to the method of making laws ;
which is much the fame in both houfes: and I (hall touch it
very briefly, beginning in the houfe of commons. But firft I
muft premife, that for difpatchof bufmefs each houfe of par-
liament has it's fpeaker. The fpeaker of the houfe of lords,
whofe office is to prefide there, and manage the formality of
the bufmefs, is the lord chancellor, or keeper of the king's
great feal, or any other appointed by the king's commiffion :
and, if none be fo appointed, the houfe of lords (it is faid)
may elect (55). The fpeaker of the houfe of commons is
chofen by the houfe (56) ; but muft be approved by the
if they report that the petition or defence is frivolous or vexatious,
the party aggrieved (hall recover cofts. For their mode of report-
ing the right of election, fee note (35), p. 174.
By the 1 1 Geo. III. c. 52. if 100 or more members are prefent,
but if, upon the drawing by lot, 49 not fet afide nor excufed can-
not be completed, the houfe {hall then adjourn, as if 100 had not
attended. And to prevent the public bufmefs being delayed by
the want of a fufficient attendance to form a feleft committee, the
36 Geo. III. c. 59. has provided, that when a fufficient number of
members are not prefent for that purpofe, the houfe, before they
adjourn, may proceed to the order for the call of the houfe, if it
has been previoufly fixed for that day, or they may adjourn fuch
call, or they may order it to be called on any future day, and may
make fuch order relative thereto as they think fit for enforcing
a fufficient attendance of the members.
Thefe are the principal provifions of this excellent ftatute under
it's prefent improved ftate.
(55) Such an inftance in the Irim houfe of lords is mentioned
by Lord Mountmorres, 2 Vol. 108.
(56) Mr. Hume is miflaken, who fays that Peter de la Mere,
chofen in the firft parliament of Ric, II. was the firft fpeaker of the
commons
Ch. 2. of PERSONS. 181
king (57). And herein the ufage of the two houfes differs, that
the fpeaker of the houfe of commons cannot give his opinion
commons (3 Vol. 3.) ; for we find in the rolls of parliament, (51
Ed. III. N 87.) that fir Thomas Hungerford, chivalier, qui avoit
les parolles des communes en cejt parlement, addrefled the king in the
name of the commons, in that jubilee year, to pray that he would
pardon feveral perfons who had been convifted in impeachments.
By the 30 Geo. III. c. 10. the falary of the fpeaker of the houfe
of commons, including his fees and former allowances, is fixed at
the clear yearly fum of 6boo/. And by the fame ftatute he is dif-
qualified from holding any office of profit under the crown during
pleafure.
(57) Sir Edward Coke, upon being elefted fpeaker in 1592, in
his addrefs to the throne, declared, " this is only as yet a nomin-
" ation, and no ele&ion, until your majefty giveth allowance and ap-
" probation." (2 Hatf. 154.) But the houfe of commons at prefent
would fcarce admit their fpeaker to hold fuch language. Till fir
Fletcher Norton was elefted fpeaker, 2 9th Nov. 1774, every gentle-
man who was propofed to fill that honourable office, affefted great
modefty, and if elefted, was almoft forced into the chair, and at the
fame time he requefted permiflion to plead, in another place,, his ex-
cufes and inability to difcharge the office, which he ufed to do upon
being prefented to the king. But fir Fletcher Norton was the firft
who difregarded this ceremony both in the one houfe and in the other.
His fuccefibrs, Mr. Cornewall and Mr. Addington, requefted to
make excufes to the throne, but were refufed by the houfe, though
Mr. Addington, in the beginning of the prefent parliament, 26th
Nov. 1790, followed the example of fir Fletcher Norton, and in-
timated no wi(h to be excufed. ( See i Woodd. 59. ) Sir John Cuft
was the laft fpeaker who addreffed the throne in the language of
diffidence, of which the following fentence may ferve as a fpeci-
men : " I can now be an humble fuitor to your majefty, that you
*' would give your faithful commons an opportunity of rectifying
" this the only inadvertent ftep which they can ever take, and be
" gracioufly pleafed to direft them to prefent fome other to your
" majefty, whom they may not hereafter be forryto have chofen,
" nor your majefty to have approved." (6 Nov. 1761.) The
chancellor ufed to reply in a handfome fpeech of compliment and
encouragement ; but now he fhortly informs the commons that his
majefty
181 The RIGHTS BOOK I.
or argue any queftion in the houfe ; but the fpeaker of the
houfe of lords, if a lord of parliament, may. In each houfe
the aft of the majority (58) binds the whole ; and this ma-
majefly approves of their fpeaker, who claims the antient privi-
leges of the commons, and then they return to their own houfe.
Some fpeakers upon this occafion have acquired great honour
and diftin&ion, particularly Thomas Nevile, germanus frater domini
JBurgavenny, qui eltflus prolocutor per communes facree regite inajejlati
ejl prafentatus, et it a egregie, eleganter, prudenter, ft diferte in ne-
gotio Jibi commijfo fe gejfit, ut omnium prafentium plavfu et latitia,
maximam Jibi laudem comfaravit, citjus laudi facra regia majejlas
non modicum eximium honoris cumulum adjecit : natn, prafentibus ft
videntibus dominis fpiritualibus et temporalibus et regni communilus,
eum equitis aurati honor e' et dignitate ad laudem Dei et fanfti Georgii
injignivit, quod nemini mortalium per ulla ante fatcula contigiffe audi-
vimus. 6 Hen. VIII. I Lords' Journ. -20.
(58) In the houfe of commons the fpeaker never votes but
when there is an equality without his cafting vote, which in that
cafe creates a majority ; but the fpeaker of the houfe of lords has
no cafting vote, but his vote is counted with the reft of the houfe ;
and in the cafe of an equality, the non-contents or negative voices
have the fame effeft and operation as if they were in faft a majo-
rity. (Lords' Journ. 25 June, 1661.) Lord Mountmorres fays,
that the houfe of lords in Ireland obferved the fame rule, and that
in cafes of equality, fe mpe r prafumitur pro negante. ( I Vol. IOJ. )
Hence the order in putting the queftion in appeals and writs of
error is this, " Is it your lordfhips' pleafure that this decree or
" judgment (hall be reverfed ?" for if the votes are equal, the
judgment of the court below is affirmed. (Ib. i Vol. 8r.) Here it
may not be improper to obferve that there is no cafting voice in
courts of juftice ; but in the fuperior courts, if the judges are equally
divided, there is no decifion, and the caufe is continued in court till
a majority concur. At the feflions the juftices, in cafe of equality,
ought to refpite the matter till the next feffions : but if they are
equal one day, and the matter is duly brought before them on an-
other day in the fame feflions, and if there is then an inequality, it
will amount to a judgment : for all the time of the feflions is con-
fidered but as one day. A cafting vote fometimes fignifies the fingle
vote of a perfon, who never votes but in the cafe of an equality ;
fome-
Ch. 2. of PERSONS. 181
jority is declared by votes openly and publicly given : not as
at Venice, and many other fenatorial afiemblies, privately or
by ballot. This latter method may be ferviceable, to prevent
intrigues and unconftitutional combinations ; but it is im-
poflible to be pra&ifed with us ; at leaft in the houfe of
commons, where every member's conducl is fubjeft to the
future cenfure of his conftituents, and therefore mould be
openly fubmitted to their infpe&ion.
To bring a bill into the houfe, if the relief fought by it is
of a private nature, it is firft neceffary to prefer a petition ;
which muft be prefented by a member, and ufually fets forth
the grievance defired to be remedied. This petition (when
founded on fats that may be in their nature difputed) is refer-
red to a committee of members, who examine the matter alleg-
ed, and accordingly report it to the houfe; and then (or other-
wife, upon the mere petition) leave is given to bring in the bill.
In public matters the bill is brought in upon motion made to
the houfe, without any petition at all. Formerly, all bills
were drawn in the form of petitions (^9), which were entered
fometimes the double vote of a perfon, who firft votes with the reft,
and then, upon an equality, creates a majority by giving a fecond vote.
A cafting vote neither exifts in corporations nor elfewhere, un-
lefs it is exprefsly given by ftatute or charter, or, what is equiva-
lent, exifts by immemorial ufage ; and in fuch cafes it cannot be
created by a bye-law. 6 T. R. 732.
( jo,) The commons for near two centuries continued the ftyle of
very humble petitioners. Their petitions frequently began with
" your poor commons beg and pray," and concluded with " for
" God's fake, and as an aft of charity :" Vot poveres communes
prlent et fupplient, pur Dieu et en oevre de charite. (Rot. Parl.
paflim. ) It appears that prior to the reign of Hen. V. it had been
the practice of the kings to add and enact more than the commons
petitioned for. In confequence of this there is a very memorable
petition from the commons in 2 Hen. V. which ftates, that it is the
liberty and freedom of the commons that there mould be no ftatute
without their affent, confidering that they have ever been as well
affenters as petitioners, and therefore they pray that forthefuture there
may be no additions to or diminutions of their petitions. And in an-
fwer to this the king granted that from henceforth they fhould be
VOL. I. S bound
1 82 The RIGHTS BOOK I.
upon the parliament tolls with the king's anfwer thereunto
fubjoined ; not in any fettled form of words, but as the cir-
cumftances of the cafe required l : and at the end of each
parliament the judges drew them into the form of a ftatute,
which was entered on the Jlatute rolls. In the reign of
Henry V., to prevent miflakes and abufes, the ftatutes were
drawn up by the judges before the end of the parliament ;
and, in the reign of Henry VI., bills in the form of acts,
according to the modern cuftom, were firft introduced.
THE perfons directed to bring in the bill, prefent it in a
competent time to the houfe, drawn out on paper, with a
multitude of blanks, or void fpaces, where any thing occurs
that is dubious, or neceflary to be fettled by the parliament
itfelf; (fuch efpecially as the precife date of times, the
nature and quantities of penalties, or of any fums of money to
be raifed j) being indeed only the fkeleton of the bill. In the
houfe of lords, if the bill begins there, it is (when of a private
nature) referred to two of the judges, to examine and report
the (late of the fa&s alleged, to fee that all neceiTary parties
confent, and to fettle all points of technical propriety. This
is read a firft time, and at a convenient diftance a fecond
time j and after each reading the fpeaker opens to the houfe
the fubftance of the bill, and puts the queftion, whether it
(hall proceed any farther ? The introduction of the bill may
be originally oppofed, as the bill itfelf may at either of tlie
readings ; and, if the oppofition fucceeds, the bill muft be
' See among numberlefs inftances, the articuli cleri, 9 Edw. II.
bound in no inftance without their aflent, faving his royal preroga-
tive to grant or deny what he pleafed of their petitions. (Ruff.
Pref. xv. Rot. Parl. 2 Hen. V. N 2 2. ) It was long after their cre-
ation, or rather feparation from the barons, before the houfe of com-
mons were confcious of their own ftrength and dignity : and fuch was
their modefty and diffidence, that they ufed to requeft the lords to
fend them fome of their members to inftruA them in their duty, "on
" account of the arduoufnefs of their charge, and the feeblenefs of
" their own powers and underftandings:" pur Parduite de lour
charge, et lefeoblefee de lour polart ft fens. ( Rot. Parl. I Ric. II . N 4.)
dropped
Ch. 2. of PERSONS. i8e
dropped for that fefllon: as it muft alfo, if oppofed with
fuccefs in any of the fubfequent ftages.
AFTER the fecond reading it is committed, that is, referred
to a committee, which is either fele&ed by the houfe in
matters of fmall importance, or elfe, upon a bill of confe-
quence, the houfe refolves itfelf into a committee of the whole
houfe. A committee of the whole houfe is compofed of every
member ; and, to form it, the fpeaker quits the chair, (another
member being appointed chairman,) and may fit and debate
as a private member. In thefe committees the bill is debated
claufe by claufe, amendments made, the blanks filled up, and
fometimes the bill entirely new-modelled. After it has gone
through the committee, the chairman reports it to the houfe [ 1 83 3
with fuch amendments as the committee have made \ and
then the houfe re-confiders the whole bill again, and the
queftion is repeatedly put upon every claufe and amendment.
When the houfe hath agreed or difagreed to the amendments
of the committee, and fometimes added new amendments of
it's qwn, the bill is then ordered to be engrofled, or written
in a ftrong grofs hand, on one or more long rolls (or preffes)
of parchment fewed together. When this is finifhed, it is
read a third time, and amendments are fometimes then made to
it ; and if a new claufe be added, it is done by tacking a feparate
piece of parchment on the bill, which is called a ryder u . The
fpeaker then again opens the contents ; and holding it up in
his hands, puts the queftion, whether the bill {hall pafs ? If
this is agreed to, the title to it is then fettled ; which ufed to
be a general one for all the afts pafled in the feflion, till in
the firft year of Henry VIII. diftindt titles were introduced
for each chapter. After this, one of the members is directed
to carry it to the lords, and defire their concurrence ; who,
attended by feveral more, carries it to the bar of the houfe
of peers, and there delivers it to their fpeaker, who comes
down from his woolfack to receive it.
IT there panes through the fame forms as in the othef
houfe, (except engroffing, which is already done,) and, if
Noy, 8 4 .
S 2 rejeSed,
183 The RIGHTS , BOOK I.
reje&ed, no more notice is taken, but it pafles fub ftlentio,
to prevent unbecoming altercations. But if it is agreed to,
the lords fend a mefiage by two matters in chancery (or upon
matters of high dignity or importance, by two of the judges)
that they have agreed to the fame : and the bill remains with
the lords, if they have made no amendment to it. But if any
amendments are made, fuch amendments are fent down with
the bill, to receive the concurrence of the commons. If the
commons difagrce to the amendments, a conference ufually
follows between members deputed from each houfe ; who for
the moft part fettle and adjuft the difference: but, if both
houfes remain inflexible, the bill is dropped. If the com-
mons agree to the amendments, the bill is fent back to the
lords by one of the members, with a meflage to acquaint them
1 84 ] therewith. The fame forms are obferved, mutatis mutandis,
when the bill begins in the houfe of lords. But, when an ac~t
of grace or pardon is pafled, it is firft figned by his majefty,
and then read once only in each of the houfes, without any
new engroffing or amendment w . And when both houfes
have done with any bill, it always is depofited in the houfe
of peers, to wait the royal aflent ; except in the cafe of a
bill of fupply, which after receiving the concurrence of the
lords is fent back to the houfe of commons. x
THE royal aflent may be given in two ways : i . In perfon ;
when the king comes to the houfe of peers, in his crown and
royal robes, and fending for the commons to the bar, the titles
of all the bills that have pafled both houfes are read j and the
king's anfwer is declared by the clerk of the parliament in Nor-
i-French (60) : a badge, it muft be owned, (now the only
man-J
w D'ewes's Jcurn. 20. 73. Com. Journ. * Com. Journ. 24 July 1660.
I? June 1747-
(60) Until the reign of Richard III. almoft all the ftatutes are
either in French or Latin, but generally in French. I have never
feen any reafon afligned for this change in the language of the
ftatutes. Richard being an ufurper, probably thought that it would
procure him a degree of popularity to give the people ftatutes in
their
Ch. 2. of PERSONS. 184
one remaining,) cf conqueft ; and which one could with to
fee fall into total oblivion, unlefs it be referved as a folemn
memento to remind us that our liberties are mortal, having
once been deftroyed by a foreign force. . If the king confents
to a public bill, the clerk ufually declares, " le royle veut t the
" king wills it fo to be ;" if to a private bill, "foitfait comme
" il eft deftrcy be it as it is defired." If the king refufes his
aflent, it is in the gentle language of " le roy s'avifera (61),
" the king will advife upon it." When a bill of fupply is patted,
it is carried up and prefented to the king by the fpeaker of the
houfe of commons y ; and the royal affent is thus exprefled,
" le roy remerciefes loyal fubj efts, accept e leur benevolence, et
" nujji le veut, the king thanks his loyal fubje&s, accepts
" their benevolence, and wills it fo to be." In cafe of an
* Rot. Parl. 9 Hen. IF. in Pryn. 4 Inft. 30. ji.
their own language, which had hitherto been as illegible as the
laws of Caligula. But the general anfwers of the king to the bills
were fo well underftood, that a change in them was of no import-
ance to the people, and only defirable for the fake of confifteney. '
( 6 1 ) The words le roy s'avifera correfpond to the phrafe for-
merly ufed by courts of juftice, when they required time to con-
fider of their judgment, viz. curia advlfare vult. And there can
be little doubt but originally thefe words implied a ferious intent
to take the fubjedl under confideration, and they only became in
effeft a negative, when the bill or petition was annulled by a dif-
folution, before the king communicated the refult of his delibera-
tion ; for in the rolls of parliament the king fometimes anfwers,
that the petition is unreafonable, and cannot be granted; fome-
times he anfwers, that he and his council will confider of it ; as in
37 Ed. III. N 33. Quant aut cejle article, il demands grand avifc*
merit, et partant le roife ent avlfera par fan confe'd.
This prerogative of rejecting bills was exercifed to fuch an ex-
tent in ancient times, that D'ewes informs us, that queen Eli-
zabeth, at the clofe of one feffion, gave her affent to 24 public
and 19 private bills ; and at the fame time rejected 48, which had 1 '
paffed the two houfes of parliament. ( Journ. 596. ) But the laflf
time it was exerted was in the year 1692 by William III., who
at lirll refufed his aflent to the bill for triennial parliaments, but
was prevailed upon to permit it to be enacted two years after-
wards. Be Lolnu, 404.
83 aft
184 The RIGHTS BOOK I.
aft of grace, which originally proceeds from the crown, and
has the royal afient in the firft ftage of it, the clerk of the
parliament thus pronounces the gratitude of the fubjeft;
" let prelatSyfeignsurSy et commons, en ce prefent parliament af-
'* fembleesy au nom de touts vous autres fubjeft s> remercient tres
185 ] humblement wire majefte, et prient a Dieu vous donner en
if fante bone vie et longue ; the prelates, lords, and commons,
" in this prefent parliament aflembled, in the name of all
" your other fubjefts, moft humbly thank your majefty, and
' pray to God to grant you in health and wealth long to
live*." 2. By the ftatute 33 Hen. VIII. c. 21. the king
may give his aflent by letters patent under his great feal,
(igned with his hand, and notified in his abfence to both
houfes aflembled together in the high houfe. And, when
the bill has received the royal aflent in either of thefe ways,
it is then, and not before, a ftatute or aft of parliament.
THIS ftatute or aft is placed among the records of the
kingdom ; there needing no formal promulgation to give it
the force of a law, as was neceflary by the civil law with
regard to the emperor's edifts ; becaufe every man in England
is, in judgment of law, party to the making of an aft of par-
liament, being prefent thereat by his reprefentatives. How-
ever, a copy thereof is ufually printed at the king's prefs for
the information of the whole land. And formerly, before
the invention of printing, it was ufed to be publifhed by the
(heriff of every county ; the king's writ being fent to him at
the end of every feflion, together with a tranfcript of all the
afts made at that feflion, commanding him, " utJJatuta illa y
*' et omnes articulos in eifdem contentos, injingulis locis ubi expe-
rt dire viderit, publics proclamari^ et jirmiter teneri et obfervari
" faciat" And the ufag.e was to proclaim them at his county
court, and there to keep them, that whoever would might
read or take copies thereof ; which cuftom continued till the
reign of Henry the feventh a .
AN aft of parliament, thus made, is the exercife of the
higheft authority that this kingdom acknowledges upon earth.
z D'ewes's Journ. 3$, 3 lull. 41. 4 Inll. 26.
It
Ch. 2. ^PERSONS. i5
It hath power to bind every fubjecl in the land, and th do-
minions thereunto belonging ; nay, even the king himfelf,
if particularly named therein. And it cannot be altered,
amended, difpenfed with, fufpended, or repealed, but in tne [ 1 86 ]
fame forms and by the fame authority of parliament : for it is
a maxim in law, that it requires the fame ftrength to diflblve
as to create an obligation. It is true it was formerly held
that the king might in many cafes difpenfe with penal fta-
tutes b : but now by ftatute i W. & M. ft. 2. c. 2. it is de-
clared, that the fufpending or difpenfing with laws by regal
authority, without confent of parliament, is illegal.
VII. TflfiRE remains only, in the feventh and laft place,
to add a word or two concerning the manner in which par-
liaments may be adjourned, prorogued, or diflblved.
AN adjournment is no more than a continuance of the
feffion from one day to another, as the word itfelf fignifies :
and this is done by the authority of each- houfe feparately
every day ; and fometimes for a fortnight or a month together,
as at Chriftmas or Eafter, or upon other particular occafions.
But the adjournment of one houfe is no adjournment of the
other c . It hath alfo been ufual, when his majefty hath figni-
fied his pleafure that both or either of the houfes mould ad-
journ themfelves to a certain day, to obey the king's pleafure
(o fignified, and to adjourn accordingly d . Otherwife, befides
the indecorum of a refufal, a prorogation would afluredly
follow : which would often be very inconvenient to both
public and private bufiriefs. For prorogation puts an end to
the feffion ; and then fuch bills as are only begun and not
perfected, muft be refumed de now (if at all) in a fubfequent
feffion : whereas, after an adjournment, all things continue
in the fame ftate as at the time of the adjournment made, and
may be proceeded on without any frefli commencement.
tfinck L. 81. 134. Bacon. Elem. 18 Dec. 1631. n JuL 1615- 13 Sept
ij 1660. AS J"l. '667. 4 Aug. 16*5.
c 4 Inff. aS. 14 Feb. 1631. 21 Jun. 171*. & &P-
Coin. Jaam. fag!*': e.g. n Jun. 1717- 3 Feb. 1741. TO Dec. tJ4S-
tJ7. 5 April 1604. 4 Jun. 14 Not. ai May 1768.
84 A PRO-
1 87 The RIGHTS BOOK I.
A PROROGATION is the continuance of the parliament
from one feflion to another, as an adjournment is the conti-
nuation of the feflion from day to day. This is done by the
royal authority, exprefled either by the lord chancellor in his
majefty's prefence, or by commiflk>n from the crown^ or
frequently by proclamation (62). Both houfes are neceflarily
prorogued at the fame time ; it not being a prorogation of
the houfe of lords, or commons, but of the parliament. The
feffion is never underftood to be at an end until a proroga-
tion j though, unlefs fome aft be pafled or fome judgment
given in parliament, it is in truth no feflion at all 6 (63). And
e 4 Inft. 28. Hale of parl. 38. Hut. 61.
( 62 ) At the beginning of a new parliament, when it is not in-
tended that the parliament mould meet at the return of the writ of
fammons for the difpatch of bufinefs, the pra&ice is, to prorogue it
by a writ of prorogation, as the parliament in 1790 was prorogued
twice by a writ ; Comm. Journ. 26th Nov. 1790 ; and the firft par-
liament in this reign was prorogued by four writs. Ib. 3 Nov.
1761. On the day upon which the writ of fummons is returnable,
the members of the houfe of commons who attend, do not enter
their own houfe, or wait for a meflage from the lords, but go im-
mediately up to the houfe of lords, where the chancellor reads the
writ of prorogation. Ib. And when it is intended that they mould
meet upon the day to which the parliament is prorogued for dif-
patch of bufinefs, notice is given by a proclamation.
( 63 ) Mr. Hatfell mentions one great inconvenience which he
apprehends might arife from this rule : The 6 Ann. c. 7. f. 6.
provides, that upon the death of the king, if there is no parliament
in being that has met and fat, then the laft preceding parliament mall
immediately convene and fit, as if the faid parliament had never
been diffolved. He fays, the conftru&ion of the words has met and
fat, has always been underftood to be a parliament of which a feffion
has been held. ( 2 HatJ. 219.) This is a conftru&ion to which I
cannot accede. The word feffion has a legal and technical fignifi-
cation ; we know its properties and confequences, but there is no
reafon that we fliould annex them all to the popular word Jit. The
objeft of the ftatute was probably this, viz. if the king mould die
after the iffuing the writs for a new parliament during a general
election, that the kingdom mould not continue HI a ftate of ferment
and confufion, but that the old parliament mould immediately revive
and
Ch. 2. of PERSONS. 187
formerly the ufage was, for the "king to give the royal aflent
to all fuch bills as he approved, at the end of every fefiion,
and then to prorogue the parliament ; though fometimes only
for a day or two f j after which all bufinefs then depending
in the houfes was to be begun again. Which cuftom obtained
fo ftrongly, that it once became a queftion *, whether giving
the royal aflent to a fingle bill did not of courfe put an end to
the feffiort. And, though it was then refolved in the negative,
yet the notion was fo deeply rooted, that the ftatute i Car. I.
c. 7. was pafied to declare, that the king's aflent to that and
fome other acts fhould not put an end to the feffion; and, even
fo late as the reign of Charles II., we find a provifo frequently
tacked to a bill h , that his majefty's aflent thereto fhould not
f Com. Journ. ai Oft. 1553. " Stat. ia Car. II. c. i. aa & 23
8 Ibid, ai Nov. 1554. Car. II. c. i.
and convene. It never could be the intention of the legiflature,
that, after the members of a new parliament had qualified them-
felves, and had been fitting perhaps for many weeks, this parlia-
ment upon the death of the king mould be fent home, and the
members of the old parliament mould be collected, merely becaufe
the new parliament had not paffed a bill. I conceive it would be
fufficient to fatisfy the provifion of this ftatute, that fuch a num-
ber of members had met, and had taken the oaths, as aftually to con-
flitute a houfe in each houfe of parliament. To fit in this cafe muft
be equivalent to take their feats, which is its fignification in the
fame fentence, viz. to convene and fit, otherwife the new king would
be compelled to make a feffion, by affenting to a bill before he
prorogued or diffolved them. But to guard againft any inconveni-
ence, which might eventually arife from the uncertainty of thefe
words, that part of the ftatute 6 Ann. c. 7. is repealed by the
37 Geo. III. c. 127. which enafts, that in cafe of the demife of
his majefty between the diffolution of the parliament and the day
appointed by the writs of fummons, then the laft preceding par-
liament mail immediately convene and fit, and continue for fix
months, unlefs fooner prorogued or diffolved by the new king ;
but if the king dies on the day appointed for affembling the new
parliament, or at any time after fuch day, and before fuch new
parliament fhall have met and fat, then the new parliament in like
manner fhall meet and fit for the fpace of fix months, unlefs fooner
prorogued or diffolved.
determine
1 87 The RIGHTS BOOK I.
determine the feflion of parliament. But it now feems to be
allowed, that a prorogation maft be exprefsly made, in order
to determine the feffion. And, if at the time of an a&uai
rebellion, or imminent danger of invafion, the parliament fhall
be feparated by adjournment or prorogation, the king is em-
powered* to call them together by proclamation, withfourteen
days' notice of the time appointed for their re-affembling (64).
1 Stat. 30 Geo. II. c. a5.
(64) This was provided by a claufe in feveral militia afts, but
that provrfion is materially altered by the 26 Geo. III. c. 107. It
has been held that after a prorogation, except under the circum-
ftances and in the manner defcribed in that ftatute, the king cannot
fummon a parliament before the day to which it was laft prorogued.
And it is underftood, that when a parliament is prorogued to a
certain day, they do not meet on that day, unlefs it be particularly
declared by the proclamation that gives notice of the prorogation,
that they mall meet for the difpatch of bufmefs ; and when it has
not been prorogued by fuch a proclamation, and it is intended
that parliament fhall aftually fit, it is the eftablifhed practice to
iflue a proclamation to give notice that it is for the difpatch of
bufinefs ; and this proclamation, unlefs upon fome urgent occafion,
bears date atleaft forty days before the meeting. (2 Half. 239.)
But by 26 Geo. III. c. 107. f. 95. in all cafes of aftual invafion,
or imminent danger of it, and in cafes of rebellion or infurre&ion,
the king having firft communicated the occafion to parliament, if
fitting, and if no parliament be fitting, having notified the occafion
by proclamation, may order the militia to be called out and em-
bodied. And whenever this is done, if the parliament be adjourned
or prorogued, he fhall convene them within fourteen days.
Purfuant to this ftatute the parliament met on the I3th Dec.
1792; but now in all cafes it is enafted by the 37 Geo. III.
c. 127. that whenever his majefty is pleafed to iffue his proclama-
tion, giving notice of his intention that parliament fhall meet for
the difpatch of bufinefs on any day not lefs than fourteen days
from the date of the proclamation, the parliament fhall thereby
ftand prorogued to that day, notwithflanding any previous pro-
rogation to a longer day.
By the 39 & 40 Geo. III. c. 14. in all cafes where both
houfes of parliament fhall ftand adjourned for more than fourteen
day,
Ch. 2. </ PERSONS. 188
A DISSOLUTION is the civil death of the parliament i and
this may be effe&ed three ways : i. By the king's will, ex-
prefled either in perfon or by representation. For, as the
king has the fole right of convening the parliament, fo alfo
it is a branch of the royal prerogative, that he may (when-
ever he pleafes) prorogue the parliament for a time, or put
a final period to it's exiftence. If nothing had a right to pro-
rogue or diflblve a parliament but itfelf, it might happen to
become perpetual. And this would be extremely dangerous,
if at any time it mould attempt to encroach upon the execu-
tive power : as was fatally experienced by the unfortunate
king Charles the firft j who, having unadvifedly pafled an acl:
to continue the parliament then in being till fuch time as it
ihould pleafe to diflblve itfelf, at laft fell a facrifice to that
inordinate power, which he himfelf had confented to give
them. It is therefore extremely neceflary that the crown
fhould be empowered to regulate the duration of thefe afiem-
blies, under the limitations which the Engliih conftitution
has prefcribed : fo that, on the one hand, they may fre-
quently and regularly come together for the difpatch of
bufinefs, and redrefs of grievances ; and may not, on the
other, even with the confent of the crown, be continued to
an inconvenient or unconftitutional length (65).
2. A PARLIAMENT may be diffolved by the demife of the
crown. This diflblution formerly happened immediately
upon the death of the reigning fovereign: for he being con-
days, the king may iflue a proclamation, declaring that the par-
liament mall meet on a day, being not lefs than fourteen days
from the date of fuch proclamation, and the two houfe? of par-
liament mail ftand adjourned to the day and place declared in
fuch proclamation. And the orders, which (hall be appointed
for the day of adjournment, or for any day fubfequtntf thereto,
except fuch as mall be fpecially appointed for particular dap,
mail be deemed to be appointed for the day of adjournment fixed
in the proclamation.
(65) A parliament may be diflblved by proclamation, as i^ was
sjuring the rccefs in 1806.
fidered
i88 The RIGHTS BOOK I.
fidered in law as the head of the parliament, (caput, prlnci-
pium, et finis J) that failing, the whole body was held to be
extinct. But the calling a new parliament immediately on 1
the inauguration of the fucceflbr being found inconvenient,
and dangers being apprehended from having no parliament
in being in cafe of a difputed fucceflion, it was enacted by
the ftatutes 7 & 8 W. III. c. 15. and 6 Ann. c. 7. that the
parliament in being fhall continue for fix months after the
death of any king or queen, unlefs fooner prorogued or dif-
folved by the fucceflbr : that, if the parliament be, at the
time of the king's death, feparated by adjournment or proro-
gation, it (hall notwithftanding aflemble immediately : and
that, if no parliament is then in being, the members of the
laft parliament fhall aflemble, and be again a parliament.
[ 189 ] 3. LASTLY, a parliament may be diflblved or expire by
length of time. For if either the legiflative body were per-
petual ; or might laft for the life of the prince who convened
them, as formerly ; and were fo to be fupplied, by occafion-
ally filling the vacancies with new reprefentatives ; in thefe
cafes, if it were once corrupted, the evil would be paft all
remedy : but when different bodies fucceed each other, if
the people fee caufe to difapprove of the prefent, they may
rectify it's faults in the next. A legiflative aflembly alfo,
which is fure to be feparated again, (whereby it's members
will themfelves become private men, and fubject to the full
extent of the laws which they have enacted for others,) will
think themfelves bound, in intereft as well as duty, to make
only fuch laws as are good. The utmoft extent of time that
the fame parliament was allowed to fit, by the ftatute 6 W.
& M. c. 2. was three years j after the expiration of which,
reckoning from the return of the firft fummons, the parlia-
ment was to have no longer continuance. But by the ftatute
I Geo. I. ft. 2. c. 38. (in order, profefledly, to prevent the
great and continued expences of frequent elections, and the
violent heats and animofities confequent thereupon, and for
the peace and fecurity of the government then juft recover-
ing from the late rebellion) this term was prolonged to/even
years :
Ch. 2. of PERSONS. 189
years : and, what alone is an infBmce of the vaft authority
of parliament, the very fame houfe, that was chofen for three
years, enacted it's own continuance for feven (66). So that,
as our conftitution now (lands, the parliament muft expire,
or die a natural death, at the end of every feventh year ; if
not fooner diflblved by the royal prerogative.
(66) This has been thought by many an unconftitutional exer-
tion of their authority ; and the reafon given is, that thofe who
had a power delegated to them for three years only, could have
no right to extend that term to feven years. But this has always
appeared to me to be a fallacious mode of confidering the fubjeft.
Before the triennial aft, 6 W. & M. the duration of parliament was
only limited by the pleafure or death of the king ; and it never can
be fuppofed that the next, or any fucceeding parliament, had not
the power of repealing the triennial aft ; and if that had been
done, then, as before, they might have fat feventeen or feventy
years. It is certainly true, that the fimple repeal of a former fta-
tute would have extended their continuance much beyond what
was done by the feptennial aft.
>9Q The RIGHTS BOOK I.
CHAPTER THE THIRD.
OP THE KING, AND HIS TITLE.
HPHE fupreme executive power of thefe kingdoms is
-** vefted by our laws in a fmgle perfon, the king or
queen , for ft matters not to which fex the crown defcends :
but the perfon entitled to it, whether male or female, is im-
mediately invefted with all the enfigns, rights, and preroga-
tives of fovereign power ; as is declared by ftatute t Mar.
ft. 3. c. i.
IN difcourfing of the royal rights and authority, I (hall
confider the king under fix diftinft views : I. With regard
to his title. 2. His royal family. 3. His councils. 4. His
duties. 5. His prerogative. 6. His revenue. And firft,
with regard to his title.
THE executive power of the Englifh nation being vefted
in a fingle perfon, by the general confent of the people, the
evidence of which general confent is long and immemorial
ufage, it became neceflary to the freedom and peace of the
ftate, that a rule mould be laid down, uniform, univerfal,
and permanent ; in order to mark out with precifion, who
is that fingle perfon, to whom are committed (in fub-
fervience to the law of the land) the care and protection of
the community ; and to whom, in return, the duty and al-
legiance of every individual are due. It is of the higheft
importance to the public tranquillity, and to the confciences
15 of
Ch. 3. tf PERSONS. 191
of private men, iha? this rule ffcpuld t>e clear and indif-
putable ; and our conftitution has npt left us in the dark upon
this material occafion. It will therefore be the endeavour
of this chapter to trace out the conftitutional doctrine of the
royal fucceffion, with that freedom and regard to truth, yet
mixed with that reverence and refpect, which the principles
of liberty and the dignity of the fubject require.
THE grand fundamental maxim upon which the jus co-
ronaey or right of fucceffion to the throne of thefe kingdoms,
depends, I take to be this : " that the crown is, by common
" law and conftitutional cuftom, hereditary ; and this in a
'* manner peculiar to itfelf : but that the right of inheritance
" may from time to time be changed or limited by act of
" parliament ; under which limitations the crown ftill con-
" tinues hereditary." And this propofition it will be the
bufmefs of this chapter to prove, in all it's branches ; firft,
that the crown is hereditary ; fecondly, that it is hereditary
in a manner peculiar to itfelf ; thirdly, that this inheritance
is fubjedt to limitation by parliament ; laftly, that when it is
fo limited, it is hereditary in the new proprietor.
i. FIRST, it is in general hereditary or defcendible to
the next heir, on the death or demife of the laft proprietor.
All regal governments muft be either hereditary or elective :
and, as I believe there is no inftance wherein the crown of
England has ever been afierted to be elective, except by the
regicides at the infamous and unparalleled trial of king
Charles I., it muft of confequence be hereditary. Yet while
I affert an hereditary, I by no means intend a jure divlno title
to the throne. Such a title may be allowed to have fub-
fifted under the theocratic eftablifhments of the children of
Ifrael in Paleftine j but it never yet fubfifted in any other
country j fave only fo far as kingdoms, like other human fa-
bricks, are fubject to the general and ordinary difpenfations
of Providence. Nor indeed have zjure divino and an hereditary
right any necefiary connection with each other ; as fome have
very weakly imagined. The titles of David and Jehu were
equally
192 The RIGHTS BOOK I.
equally jure divitw, as thofe of either Solomon or Ahab ; and
1 yet David flew the fons of his predecefibr, and Jehu his pre-
deceflbr himfelf. And when our kings have the fame warrant
as they had, whether it be to fit upon the throne of their fa-
thers, or to deftroy the houfe of the preceding fovereign, they
will then, and not before, poffefs the crown of England by
a right like theirs, immediately derived from heaven. The
hereditary right which the laws of England acknowledge,
owes it's origin to the founders of our conftitution, and to
them only. It has no relation to, nor depends upon, the
civil laws of the Jews, the Greeks, the Romans, or any
other nation upon earth : the municipal laws of one fociety
having no connection with, or influence upon, the funda-
mental polity of another. The founders of our Englifh mo-
narchy might perhaps, if they had thought proper, have made
it an elective monarchy : but they rather chofe, and upon good
reafon, to eftablifh originally a fucceflion by inheritance. This
has been acquiefced in by general confent ; and ripened by
degrees into common law : the very fame title that every
private man has to his own eftate. Lands are not naturally
defcendible any more than thrones : but the law has thought
proper, for the benefit and peace of the public, to eftablifh
hereditary fucceffion in the one as well as the other.
IT muft be owned, an elective monarchy feems to be the
moil obvious, and beft fuited of any to the rational prin-
ciples of government, and the freedom of human nature : and
accordingly we find from hiftory that, in the infancy and
firft rudiments of almoft every ftate, the leader, chief ma-
giftrate, or prince, hath ufually been elective. And, if the
individuals who compofe that ftate could always continue true
to firft principles, uninfluenced by paflion or prejudice, un-
affailed by corruption, and unawed by violence, elective fuc-
ceffion were as much to be defired in a kingdom, as in other
inferior communities. The beft, the wifeft, and the braveft
man would then be fure of receiving that crown, which his
endowments have merited ; and the fenfe of an unbiaffed ma-
jority would be dutifully acquiefced in by the few who were
16 of
Ch. 3. of PERSONS. 193
of different opinions. But hiftory^and obfervation will inform
us, that elections of every kind (in the prefent ftate of human
nature) are too frequently brought about by influence, partia-
lity, and artifice : and, even where the cafe is otherwife, thefe
practices will be often fufpected, and as conftantly charged
upon the fuccefsful, by a fplenetic difappointed minority.
This is an evil to which all focieties are liable ; as well thofe
of a private and domeftic kind, as the great community of the
public, which regulates and includes the reft. But in the
former there is this advantage ; that fuch fufpicions, if falfe,
proceed no fartherthan jealoufies and murmurs, which time
will effectually fupprefs ; and, if true, the injuftice may be
remedied by legal means, by an appeal to thofe tribunals to
which every member of fociety has (by becoming fuch)
virtually engaged to fubmit. Whereas in the great and
independent fociety, which every nation compofes, there is
no fuperior to refort to but the law of nature ; no method to
redrefs the infringements of that law but the actual exertion of
private force. As therefore between two nations, complain-
ing of mutual injuries, the quarrel can only be decided by the
law of arms ; fo in one and the fame nation, when the fun-
damental principles of their common union are fuppofed to be
invaded, and more efpecially when the appointment of their
chief magiftrate is alleged to be unduly made, the only tribunal
to which the complainants can appeal, is that of the God of
battles j the only procefs by which the appeal can be carried
on is that of a civil and inteftine war. An hereditary fuc-
ceffion to the crown is therefore now eftabliihed, in this and
inoft other countries, in order to prevent that periodical blood-
fhed and mifery, which the hiftory of antient imperial Rome
and the more modern experience of Poland and Germany,
may {hew us are the confequences of elective kingdoms.
2. BUT, fecondly, as to the particular mode of inherit-
ance, it in general correfponds with the feodal path of de-
fcents, chalked out by the common law in the fucceffion to
landed eflates j yet with one or two material exceptions.
Like eftates, the crown will dcfcend lineally to the iffue of the
VOL. I. T reigning
193 The RIGHTS BOOK J.
reigning monarch ; as it did from king John to Richard II.,
194 ] through a regular pedigree of fix lineal generations. As in
common defcents, the preference of males to females, and the
right of primogeniture among the males, are ftri&ly adhered
to. Thus Edward V. fucceeded to the crown in preference to
Richard his younger brother, and Elizabeth his eldeft fitter.
Like lands or tenements, the crown, on failure of the male
line, defcends to the ifiue female ; according to the antient
Britifh cuftom remarked by Tacitus 3 : " folent foeminarum
" duflu bellare, et fexum in imperils non difcernere" Thus
Mary I. fucceeded to Edward VI., and the line of Margaret
queen of Scots, the daughter of Henry VII., fucceeded on
failure of the line of Henry VIII. his fon. But, among the
females, the crown defcends by right of primogeniture to the
eldeft daughter only and her iffue; and not, as in common
inheritances, to all the daughters at once; the evident neceflity
of a fole fucceflion to the throne having occafioned the royal
law of defcents to depart from the common law in this
refpeft ; and therefore queen Mary, on the death of her brother,
fucceeded to the crown alone, and not in partnerfhip with
her fifter Elizabeth. Again ; the do&rine of reprefentation
prevails in the defcent of the crown, as it does in other inhe-
ritances ; whereby the lineal defcendants of any perfon de-
ceafed ftand in the fame place as their anceftor, if living,
w.ould have done. Thus Richard II. fucceeded his grandfather
Edward III., in right of his father the black prince ; to the
exclufion of all his uncles, his grandfather's younger children.
Laftly, on failure of lineal defcendants, the crown goes to the
next collateral relations of the late king ; provided they are
lineally defcended from the blood-royal, that is, from that royal
ftock which originally acquired the crown. Thus Henry I.
fucceeded to William II., John to Richard I., and James I.
to Elizabeth ; being all derived from the conqueror, who was
then the only regal ftock. But herein there is no objection
(as in the cafe of common defcents) to the fucceflion of a
brother, an uncle, or other collateral relation, of the half 'blood ;
that is, where the relationfhip proceeds not from the fame
* Ji vit. Agricetar.
ecuptt
eh. 3. 0f PERSONS. 194
; . \
couple of anceftors (which conftitutes a kinfman of the whole
blood) but from a Jingle anceftor only ; as when two perfons
are derived from the fame father, and not from the fame
mother, or vice verfa : provided only, that the one anceftor, [ 195 ]
from whom both are descended, be that from whofe veins the
blood-royal is communicated to each. Thus Mary I. inherited
to Edward VI., and Elizabeth inherited to Mary ; all children
of the fame father, king Henry VIII., but all by different
mothers. The reafon of which diverfity, between royal and
common defcents, will be better underftood hereafter, when
we examine the nature of inheritances in general.
3. THE doftrine of hereditary right does by no means im-
ply an indefeajible right to the throne. No man will, I think,
a'flert this, that has confidered our laws, conftitution, and
hiftory, without prejudice, and with any degree of attention.
It is unqueftionably in the bread o the fupreme legiflative
authority of this kingdom, the king and both houfes of par-
liament, to defeat this hereditary right ; and, by particular
entails, limitations, and provifions, to exclude the immediate
heir, and veft the inheritance in any one elfe. This is ftrictly
confonant to our laws and conftitution-j as may be gathered
from the expreflion fo frequently ufed in our ftatute book,
of " the king's majefty, his heirs and fucceflbrs." In which
we may obferve, that as the word " heirs" neceflarily im-
plies an inheritance or hereditary right, generally fubfifting
in the royal perfon ; fo the word " fucceffors," diftin&ly
taken, muft imply that this inheritance may fometimes be
broken through j or, that there may be a fucceffbr, without
being the heir, of the king. And this is fo extremely reafon-
able, that without fuch a power, lodged fomewhere, our polity
would be very defective. For, let us barely fuppofe fo melan-
choly a cafe, as that the heir apparent fhould be a lunatic,
an idiot, or otherwife incapable of reigning ; how miferable
would the condition of the nation be, if he were alfo inca-
pable of being fet afide ! It is therefore necefiary that this
power fhould be lodged fomewhere : and yet the inheritance
and regal dignity would be very precarious indeed, if this
power were exprefsly and avowedly lodged in the hands of the
T 2 fubieft
i 95 The RIOHTS BOOK I.
fubject only, to be exerted whenever prejudice, caprice, or
difcontent fhould happen to take the lead. Confequentiy it
can no where be fo properly lodged as in the two houfes of
[ 196 ] parliament, by and with the confent of the reigning king ;
who, it is not to be fuppofed, will agree to any thing impro-
perly prejudicial to the rights of his own descendants. And
therefore in the king, lords, and commons, in parliament
aflembled, our laws have exprefsly lodged it.
4. BUT, fourthly ; however the crown may be limited or
transferred, it dill retains it's defcendible quality, and be-
comes hereditary in the wearer of it. And hence in our law
the king is faid never to die, in his political capacity , though,
in common with other men, he is fubjec~l to mortality in his
natural: becaufe immediately upon the natural death of Henry,
William, or Edward, the king furvives in his fucceflbr.
For the right of the crown vefts, eo injlanti, upon his heir ;
either the haeres natus y if the courfe of defcent remains un-
impeached, or the haeres faEl us ,if the inheritance be under any
particular fettlement. So that there can be no interregnum (i);
but, as fir Matthew Hale b obferves, the right of Sovereignty
is fully invefted in the fucceflbr by the very defcent of the
crown. And therefore, however acquired, it becomes in him
abfolutely hereditary, unlefs by the rules of the limitation it
is otherwife ordered and determined. In the fame manner
as landed eftates, to continue our former comparifon, are by
the law hereditary, or defcendible to the heirs of the owner ;
but ftill there exifts a power, by which the property of thofe
lands may be transferred to another perfon. If this transfer
be made (imply and abfolutely, the lands will be hereditary
in the pew owner, and defcend to his heir at law ; but if the
transfer be clogged with any limitations, conditions, or en-
" iHift. P. C.6i.
( i) Hence the ftatutes paffed in the firft year after the reftor-
ation of Car. II. are always called the afts in the twelfth year of
his reign : and all the other legal proceedings of that reign are
reckoned from the year 1648, and not from the year 1660.
1 6 tails,
Ch. 3. of PERSONS. 1 96
tails, the lands mult defcend in that channel, fo limited and
prefcribed, and no other.
IN thefe four points confifts, as I take it, the conftitutionai
notion of hereditary right to the throne ; which will be ftill
farther elucidated, and made clear beyond all difpute, from
a (hort hiftorical view of the fucceflions to the crown of Eng-
land, the doctrines of our antient lawyers, and the feveral
ats of parliament that have from time to time been made,
to create, to declare, to confirm, to limit, or to bar the
hereditary title to the throne. And in the purfuit of this [ 197 ]
inquiry we (hall find, that from the days of Egbert, the firft
fole monarch of this kingdom, even to the prefent, the four
cardinal maxims above-mentioned have ever been held the
conftitutionai canons of fucceflion. It is true, the fucceffion,
through fraud, or force, or fometimes through neceffity, when
in hoftile times the crown defcended on a minor or the like,
has been very frequently fufpended; but has generally at
laft returned back into the old hereditary channel, though
fometimes a very confiderable period has intervened. And,
even in thofe inftances where the fucceffion has been vio-
lated, the crown has ever been looked upon as hereditary in
the wearer of it. Of which the ufurpers themfelves were
fo fenfible, that they for the moft part endeavoured to vamp
up fome feeble {hew of a title by defcent, in order to amufe
the people while they gained the pofleflion of the kingdom.
And, when pofleflion was once gained, they confidered it as
the purchafe or acquifition of a new eftate of inheritance,
and tranfmitted or endeavoured to tranfmit it to their own
pofterity, by a kind of hereditary right of ufurpation.
KING Egbert, about the year 800, found himfelf in pof-
feflion of the throne of the weft Saxons, by a long and un-
difturbed defcent from his anceftors of above three hundred
years. How his anceftors acquired their title, whether by
force, by fraud, by contract, or by election, it matters not
much to enquire \ and is indeed a point of fuch high an-
tiquity, as muft tender all inquiries at beft but plaufible
T 3 guefles.
197 The RIGHTS BOOK!.
guefles. His right muft be fuppofed indifputably good,
becaufe we know no better. The other kingdoms of the
heptarchy he acquired, fome by -confent, but mod by a
voluntary fubmiflion. And it is an eftablifhed maxim in
civil polity, and the law of nations, that when one country is
united to another in fuch a manner, as that one keeps it's
government and ftates, and the other lofes them ; the latter
entirely aflimilates with or is melted down in the former, and
muft adopt it's laws and cufhoms c . And in purfuance of this
maxim there hath ever been, fince the union of the heptarchy
[ 198 ] in king Egbert, a general acquiefcence under the hereditary
monarchy of the weft Saxons, through all the united
kingdoms.
FROM Egbert to the death of Edmund Ironfide, a period
of above two hundred years, the crown defcended regularly,
through a fucceflion of fifteen princes, without any deviation
or interruption : fave only that the fons of king Ethelwolf
fucceeded to each other in the kingdom, without regard to
the children of the elder branches, according to the rule of
fucceflion prefcribed by their father, and confirmed by the
wittena-gemote, in the heat of the Daniih invafions : and
alfo that king Edred, the uncle of Edwy, mounted the throne
for about nine years, in the right of his nephew a minor, the
times being very troublefome and dangerous. But this was
with a view to preferve, and not to deftroy, the fucceflion ;
and accordingly Edwy fucceeded him.
KING Edmund Ironfide was obliged, by the hoftile irrup-
tion of the Danes, at firft to divide his kingdom with Canute
king of Denmark ; and Canute, after his death, feized the
whole of it, Edmund's fon being driven into foreign coun-
tries. Here the fucceflion was fufpended by actual force, and
a new family introduced upon the throne : in whom however
this new-acquired throne continued hereditary for three reigns \
when, upon the death of Hardiknute, the antient Saxon line
was reftored in the perfon of Edward the confeflbr.'
Puff. L. of N, and N. b. 8. c. l. 6.
HE
Ch, 3. ^PERSONS. 198
\
HE was not indeed the true heir to the crown, being the
younger brother of king Edmund Ironfide, who had a fon
Edward, firnamed (from his exile) the outlaw, ftill living.
But this fon was then in Hungary ; and, the Englifh having
juft fhaken off the Danifh yoke, it was necefiary that fome-
body on the fpot fhould mount the throne ; and the confeflbr
was the next of the royal line then in England. On his
deceafe without iflue, Harold II. ufurped the throne ; and
almoft at the fame inftant came on the Norman invafion : the
right to the crown being all the time in Edgar, firnamed
Atheling, (which fignifies in the Saxon language illujlrious,
or of royal blood,) who was the fon of Edward the outlaw,
and grandfon of Edmund Ironfide ; or, as Matthew Paris a
well exprefies the fenfe of our old conftitution, Edmundus [ 199 J
" autem /atusferreum, rex naturalis de ftirpe regum, genuit
" Ednuardum : et Ednuardus genuit Edgarum, cui de jure debe-
ft batur regnum Angloruin"
WILLIAM the Norman claimed the crown by virtue of a,
pretended grant from king Edward the confeflbr ; a grant
which, if real, was in itfelf utterly invalid; becaufe it was
made, as Harold well obferved in his reply to William's de-
mand e , " abfque generali fenatus, et populi conventu et ediElo ;"
which alfo very plainly implies, that it then was generally
underftood that the king, with confent of the general council,
might difpofe of the crown and change the line of fucceflion.
William's title however was altogether as good as H.arold's>
he being a mere private fubjeft, and an utter ftranger to the
royal blood. Edgar Atheling's undoubted right was over-
whelmed by the violence of the times ; though frequently
afierted by the Englifh nobility after the conqueft, till fuch
time as he died without iflue <: but all their attempts proved
unfuccefsful, and only ferved the more firmly to eltabliih
the crown in the family which had newly acquired it.
THIS conqueft then by William of Normandy was, like
that of Canute before, a forcible transfer of the crown of
* A. D. 1066. William of Maln.lb. /. 7. , 4J
T 4 England
1 99 The RIGHTS BOOK!.
England into a new family ; but, the crown being fo tranf-
ferred, all the inherent properties of the crown were with it
transferred alfo. For, the vidtory obtained at Mailings not
being f a victory over the nation collectively, but only over
the perfon of Harold, the only right that the conqueror
could pretend to acquire thereby, was the right to poflefs the
crown of England, not to alter the nature of the government.
And therefore as the Englifli laws ftill remained in force,
he muft neceflarily take the crown fubjecl: to thofe laws, and
with all it's inherent properties ; the firft and principal of
which was it's defcendibility. Here then we muft drop our
race of Saxon kings, at leaft for a while, and derive our
defcents from William the conqueror as from a new ftock,
who acquired by right of war (fuch as it is, yet ftill the der-
[ 2do ] nier refort of kings) a ftrong and undifputed title to the in-
heritable crown of England.
ACCORDINGLY it defcended from him to his fons Wil-
liam II. and Henry I. Robert, it muft be owned, his eldeft
fon, was kept out of pofleflion by the arts and violence of his
brethren ; who perhaps might proceed upon a notion, which
prevailed for fome time in the law of defcents, (though never
adopted as the rule of public fuccefiions 8 ,) that when the eldeft
fon was already provided for, (as Robert was conftituted duke
of Normandy by his father's will,) in fuch a cafe the next
brother was entitled to enjoy the reft of their father's inhe-
ritance. But, as he died without iflue, Henry at laft had a
good title to the throne, whatever he might have at firft.
STEPHEN of Blois, who iucceeded him, was indeed the
grandfon of the conqueror, by Adelicia his daughter, and
claimed the throne by a feeble kind of hereditary right : not
as being the neareft of the male line, but as the neareft male
of the blood royal, excepting his elder brother Theobald ;
who was earl of Blois, and therefore feems to have waived,
as he certainly never infifted on, fo troublefome and preca-
f Hale, Hift. C. L. c. 5, Seld. review <* Sec Lord Ly ttleton's life of Hen. II.
of tithes, c. 8. Vol. I. p. 467.
rious
Ch. 3. of PERSONS. 200
\
rious a claim. The real right was in the emprefe Matilda or
Maud, the daughter of Henry I. ; the rule of fucceffion being
(where women are admitted at all) that the daughter of a fon
fhall be preferred to the fon of a daughter. So that Stephen
was little better than a mere ufurper ; and therefore he rather
ehofe to rely on a title by election h , while the emprefs
Maud did not fail to affert her hereditary right by the fword ;
which difpute was attended with various fuccefs, and ended
at laft in the compromife made at Wallingford, that Stephen
fhould keep the crown, but that Henry the fon of Maud
fliould fucceed him ; as he afterwards accordingly did.
HENRY, the fecond of that name, was (next after his mo-
ther Matilda) the undoubted heir of William the conqueror ;
but he had alfo another connexion in blood, which endeared
him ftill farther to the Englifli. He was lineally defcended [ 201 3
from Edmund Ironfide, the laft of the Saxon race of here-
ditary kings. For Edward the outlaw, the fon of Edmund
Ironfide, had (befides Edgar Atheling, who died without
iflue) a daughter Margaret, who was married to Malcolm
king of Scotland ; and in her the Saxon hereditary right
refided. By Malcolm fhe had feveral children, and among
the reft Matilda the wife of Henry I., who by him had the
emprefs Maud, the mother of Henry II. Upon which account
the Saxon line is in our hiftories frequently faid to have been
reftored in his perfon : though in reality that right fubfifted
in the fans of Malcolm by queen Margaret ; king Henry's beft
title being as heir to the conqueror.
'."...' '. ':.; ",\. '.'. '} ' ':> :':.: lltift 1 -. ' '
FROM Henry II. the crown defcended to his eldeft fou
Richard I., who dying childlefs, the right vetted in his nephew
Arthur, the fon of Geoffrey his next brother : but John, the
youngeft fon of king Henry, feized the throne ; claiming,
as appears from his charters, the crown by hereditary right l :
that is to fay, he was next of kin to the deceafed king, being
h Ego Stefbanvs Dei gratia affenju Neubr. 711.)
" cleri et fofuli in regem Anglorum elec~ * " Regni Angliae ; quod nokit jure
u tut,&c"(Cart.A.D.\iT,(>. Ric.de " tomfetit bacreditariv" Splm. Uifi.
Haguftald. 314. Hearne ad CM. R. Jot. afud Wilkuis, 354-
his
sai The RIGHTS BOOK I.
his furviving brother : whereas Arthur was removed one
degree farther, being his brother's fon, though by right of
reprefentation he ftood in the place of his father Geoffrey.
And however flimfy this title, and thofe of William Rufus
and Stephen of Blois, may appear at this diftance to us, after
the law of defcents hath now been fettled for fo many centu-
ries, they were fufficient to puzzle the underftandings of
our brave, but unlettered anceftors. Nor indeed can we
wonder at the number of partizans, who efpoufed the pre-
tenfions of king John in particular ; -fince even in the reign
of his father king Henry II., it was a point undetermined ' ;
whether, even in common inheritances, the child of an elder
brother mould fucceed to the land in right of reprefentation,
or the younger furviving brother in right of proximity ot
blood. Nor is it to this day decided in the collateral fuccef-
fion to the fiefs of the empire, whether the order of the
flocks, or the proximity of degree, (hall take place k . How-
202 ] ever, on the death of Arthur and his fifter Eleanor without
iflue, a clear and indifputable title veiled in Henry III. the
fon of John : and from him to Richard the fecond, a fuccef-
fion of fix generations, the crown defcended in the true
hereditary line. Under one of which race of princes l we
find it declared in parliament, " that the law of the crown
< of England is, and always hath been, that the children
" of the king of England, whether born in England or elfe-
" where, ought to bear the inheritance after the death of
their anceftors. Which law our fovereign lord the king,
" the prelates, earls, and barons, and other great men, toge-
" ther with all the commons in parliament aflembled, do
" approve and affirm for ever."
UPON Richard the fecond's refignation of the crown, he
having no children, the right refulted to the iflue of his grand-
father Edward III. That king had many children, befides
his eldeft, Edward the black prince of Wales, the father of
Richard II. : but to avoid confufion I (hall only mention
1 Glanv. /. 7. c. 3. Stat. aj Edw. III. ft. ^.
"Mod. Un. Hift. xxx. $.
three ;
Ch. 3. of PERSONS. 202
three j William his iecond ion, who died without iflue ;
Lionel, duke of Clarence, his third fon j and John of Gant,
duke of Lancafter, his fourth. By the rules of fucceffion
therefore the pofterity of Lionel duke of Clarence were en-
titled to the throne upon the refignation of king Richard ;
and had accordingly been declared by the king, many years
before, the prefumptive heirs of the crown : which declar-
ation was alfo confirmed in parliament m . But Henry duke
of Lancafter, the fon of John of Gant, having then a large
army in the kingdom, the pretence of railing which was
to recover his patrimony from the king, and to redrefs the
grievances of the fubjeft, it was impoffible for any other title
to be aflerted with any fafety \ and he became king under
the title of Henry IV. But, as fir Matthew Hale remarks n ,
though the people unjuftly affifted Henry IV. in his ufurp-
ation of the crown, yet he was not admitted thereto, until he
had declared that he claimed, not as a conqueror, (which he
very much inclined to do ,) but as a fucceflbr, defcended by
right line of the blood royal j as appears from the rolls of
parliament in thofe times. And in order to this he fet up a
fhew of two titles : the one upon the pretence of being the
firft of the blood royal in the entire male line, whereas the r 203 ]
duke of Clarence left only one daughter, Philippa ; from
which female branch, by a marriage with Edmond Mortimer
earl of March, the houfe of York defcended ; the other, by
reviving an exploded rumour, firft propagated by John of
Gant, that Edmond earl of Lancafter (to whom Henry's
mother was heirefs) was in reality the elder brother of king
Edward I. ; though his parents, on account of his perfonal
deformity, had impofed him on the world for the younger ;
and therefore Henry would be entitled to the crown, either
as fucceflbr to Richard II., in cafe the entire male line was
allowed a preference to the female, or, even prior to that
unfortunate prince, if the crown could defcend through a
female, while an entire male line was exifting.
m Sandford's general hift. Z4&. Seld. tit. Hon. i. 3.
r Hift. C.L. c.j.
HOWEVER,
203 TAe RIGHTS BOOK I.
HOWEVER, as in Edward the third's time we find the par-
liament approving and affirming the law of the crown, as be-
fore ftated, fo in the reign of Henry IV. they actually exerted
their right of new-fettling the fucceffion to the crown. And
this was done by the ftatute 7 Hen. IV. c. 2. whereby it is
ena&ed, that the inheritance of the crown and realms of
" England and France, and all other the king's dominions,
'* fhall bey?/ and remain p in the perfon of our fovcreign lord
" the king, and in the heirs of his body ifluing ;" and prince
Henry is declared heir apparent to the crown, to hold to him
and the heirs of his body ifluing, with remainder to lord
Thomas, lord John, and lord Humphry, the king's fons, and
the heirs of their bodies refpeUvely : which is indeed nothing
more than the law would have done before, provided Henry
the fourth had been a rightful king. It however ferves to
fliew that it was then generally underftood, that the king
and parliament had a right to new-model and regulate the
fucceffion to the crown : and we may alfo obferve, with what
caution and delicacy the parliament then avoided declaring
any fentiment of Henry's original title. However, fir Edward
Coke more than once exprefsly declares q , that at the time of
L 204 ~] paffing this act the right of the crown was in the defcent from
Philippa, daughter and heir of Lionel duke of Clarence.
NEVERTHELESS the crown defcended regularly from
Henry IV. to his fon and grandfon Henry V. and VI. ; in the
latter of whofe reigns the houfe of York aflerted their dormant
title ; and, after embruing the kingdom in blood and confufion
for feven years together, at laft eftablifhed it in the perfon of
Edward IV. At his acceffion to the throne, after a breach
of the fucceffion that continued for three defcents, and above
threefcore years, the diftinftion of a king dejure and a king
de fafto began to be firft taken ; in order to indemnify fuch
as had fubmitted to the late eftablifhment, and to provide for
the peace of the kingdom by confirming all honours conferred
and all a&s done, by thofe who were now called the ufurpers,
* fat myt tt democrat. * 4 Inft. 37. aoj.
not
Ch. 3- ^/PERSONS. 204
not tending to the difherifon of the rightful heir. In ftatute
i Ed w. IV. c. i . the three Henries are ftiled, " late kings of
" England fucceffively in dede, and not of ryght." And, in all
the charters which I have met with of king Edward, where-
ever he has occafion to fpeak of any of the line of Lancafter,
he calls them " nuper de faEto t et non de jure t reges Angliae"
EDWARD IV. left two fons and a daughter 5 the eldeft of
which fons, king Edward V., enjoyed the regal dignity for a
very fhort time, and was then depofed by Richard his unna-
tural uncle, who immediately ufurped the royal dignity ;
having previoufly infinuated to the populace a fufpicion of
baftardy in the children of Edward IV., to make a mew of
fome hereditary title : after which he is generally believed to
have murdered his two nephews, upon whofe death the right
of the crown devolved to their fifter Elizabeth.
THE tyrannical reign of king Richard III. gave occafion to
Henry earl of Richmond to aflert his title to the crown. A,
title the moft remote and unaccountable that was ever fet up,
and which nothing could have given fuccefs to, but the uni-
verfal deteftation of the then ufurper Richard. For, befides
that he claimed under a defcent from John of Gant, whofe
title was now exploded, the claim (fuch as it was) was throtgh
John earl of Somerfet, a baftard fon, begotten by John of
Gant upon Catherine Swinford. It is true, that by an a& [ -205
of parliament, 20 Ric. II., this fon was, with others, legiti-
mated and made inheritable to all lands, offices and dignities,
as if he had been born in wedlock : but ftill with an exprefs
refervation of the crown, " excepta dignitate regali r ."
NOTWITHSTANDING all this, immediately after the battle
of Bofworth-field, he affumed the regal dignity ; the right
of the crown then being, as fir Edward Coke exprefsly de-
clares % in Elizabeth, eldeft daughter of Edward IV. : and
his pofleffion was eftablifhed by parliament, holden the firft
year of his reign. In the aft for which purpofe, the parlia-
s Ibid.tf.
ment
205
The RIGHTS BOOK I.
ment feems to have copied the caution of their predeceflbrs in
the reign of Henry IV. : and therefore (as lord Bacon, the
hiftorian of this reign, obferves) carefully avoided any recog-
nition of Henry VII.'s right, which indeed was none at all ;
and the king would not have it by way of new law or ordi-
nance, whereby a right might feem to be created and conferred
upon him ; and therefore a middle way was rather chofen,
by way (as the noble hiftorian expreffes it) of eftabli/hment,
and that under covert and indifferent words, " that the in-
" heritance of the crown fhould reft, remain^ and abide in
" king Henry VII. and the heirs of his body:" thereby pro-
viding for the future, and at the fame time acknowledging his
prefent pofieflion ; but not determining either way, whether
that pofieflion was de jure or de faElo merely. However, he
foon after married Elizabeth of York, the undoubted heirefs
of the conqueror, and thereby gained (as fir Edward Coke
declares l ) by much his beft title to the crown. Whereupon
the act made in his favour was fo much difregarded, that it
never was printed in our ftatute books.
HENRY the eighth, the iffue of this marriage, fucceeded to
the crown by clear indifputable hereditary right, and tranf-
mitted it to his three children in fucceflive order. But in
his reign we at feveral times find the parliament bufy in re-
P 206 1 g u l atin g th e fucceffiori to the kingdom. And, firft, by fta-
tute 25 Henry VIII. c. 1 2. which recites the mifchiefs which
have and may enfue by difputed titles, becaufe no perfect and
fubftantial provifion hath been made by law concerning the
fucceflion ; and then enafts, that the crown mall be entailed
to his majefty, and the fons or heirs male of his body , and
in default of fuch fons to the lady Elizabeth (who is declared
to be the king's eldeft iflue female, in exclufion of the lady
Mary, on account of her fuppofed illegitimacy by the divorce
of her mother queen Catherine) and to the lady Elizabeth's
heirs of her body ; and fo on from iflue female to iflue female,
and the heirs of their bodies, by courfe of inheritance accord-
ing to their ages, as the crown of England hath been accuflomed
and
Ch.3 of PERSONS. 206
and ought to go, in cafe where there be heirs female of the
fame : and in default of iffiie female, then to the king's right
heirs for ever. This fingle ftatute is an ample proof of all
the four pofitions we at firft fet out with.
BUT upon the king's divorce from Ann Boleyn, this ftatute
was, with regard to the fettlement of the crown, repealed
by ftatute 28 Hen. VIII. c. 7. wherein the lady Elizabeth is
alfo, as well as the lady Mary, baftardized, and the crown
fettled on the king's children by queen Jane Seymour, and
his future wives ; and, in defect of fuch children, then with
this remarkable remainder, to fuch perfons as the king by
letters patent, or laft will and teftamenr, (hould limit and
appoint the fame. A vaft power ; but, notwithftanding, as
it was regularly vefted in him by the fupreme legiflative
authority, it was therefore indifputably valid. But this power
was never carried into execution ; for by ftatute 35 Hen. VIII.
c. i. the king's two daughters are legitimated again, and the
crown is limited to prince Edward by name, after that to the
lady Mary, and then to the lady Elizabeth, and the heirs of
their refpedHve bodies ; which fucceffion took effect accord-
ingly, being indeed no other than the ufual courfe of the
law, with regard to the defcent of the crown.
BUT left there fhould remain any doubt in the minds of
the people, through this jumble of acts for limiting the fuc-
ceffion, by ftatute i Mar. ft. 2. c. i. queen Mary's heredi-
tary right to the throne is acknowledged and recognized in [ 207 ]
thefe words : " the crown of thefe realms is moft lawfully,
" juftly, and rightly defcended and come to the queen's
" highnefs that now is, being the very, true, and undoubted
" heir and inheritrix thereof." And again, upon the queen's
marriage with Philip of Spain, in the ftatute which fettles
the preliminaries of that match *, the hereditary right to
the crown is thus aflerted and declared : " as touching the
" right of the queen's inheritance in the realm and domi-
1 i Mar. ft, . c. a,
" nions
207 The RIGHTS BOOK I.
" nions of England, the children, whether male or female,
" fhall fucceed in them, according to the known laws, fta-
" tutes, and cuftoms of the fame." Which determination of
the parliament, that the fuccefllony2>a// continue in the ufual
courfe, feems tacitly to imply a power of new-modelling and
altering it, in cafe the legiflature had thought proper.
ON queen Elizabeth's acceffion, her right is recognized in
ftiil ftronger terms than her fitter's ; the parliament acknow-
ledging ", " that the queen's highnefs is, and in every deed
" and of moft mere right ought to be, by the laws of God,
" and the laws and ftatutes of this realm, our moft lawful
" and rightful fovereign liege lady and queen ; and that
" her highnefs is rightly, lineally, and lawfully defcended
and come of the blood royal of this realm of England ;
" in and to whofe princely perfon, and to the heirs of her
body lawfully to be begotten, after her, the imperial
" crown and dignity of this realm doth belong." And in
the fame reign, by ftatute 13 Eliz. c. I. we find the right
of parliament to direct the fucceffion of the crown aflerted in
the moft explicit words. " If any perfon fhall hold, affirm,
" or maintain, that the common laws of this realm, not
" altered by parliament, ought not to direct the right of the
" crown of England ; or that the queen's majefty, with and
" by the authority of parliament, is not able to make laws
" and ftatutes of fufficient force and validity, to limit and
" bind the crown of this realm, and the defcent, limitation,
" inheritance, and government thereof j fuch perfon, fo
" holding, affirming, or maintaining, fhall, during the life
[ 208 ] of the queen, be guilty of high treafon ; and after her
" deceafe fhall be guilty of a mifdemefnor, and forfeit his
" goods and chattels."
ON the death of queen Elizabeth, without iflue, the line of
Henry VIII. became extinct. It therefore became necefiary
to recur to the other iuoie of Henry VII. by Elizabeth of
York his queen ; whofe eldeft daughter Margaret having
u Stat. i Eliz. c. 3.
&&.-* married
Ch.3 tf PERSONS. 208
married James IV. king of Scotland, king James the fixth of
Scotland, and of England the firft, was the lineal defcendant
from that alliance. So that in his perfon, as clearly as in
Henry VIII., centered all the claims of different competitors,
from the conqueft downwards, he being indifputably the
lineal heir of the conqueror. And, what is ftill more re-
markable, in his perfon alfo centered the right of the Saxon
monarchs which had been fufpended from the conqueft till
his acceflion. For, as was formerly obferved, Margaret,
the fifter of Edgar Atheling, the daughter of Edward the
out-law, and grand-daughter of king Edmund Ironfide, was
the perfon in whom the hereditary right of the Saxon
kings, fuppofing it not aboliihed by the conqueft, refided.
She married Malcolm king of Scotland ; and Henry II., by
a defcent from Matilda their daughter, is generally called
the reftorer of the Saxon line. But it muft be remembered,
that Malcolm by his Saxon queen had fons as well as
daughters : and that the royal family of Scotland from that
time downwards were the offspring of Malcolm and Mar-
garet. Of this royal family king James the firft was the
direft lineal heir, and therefore united in his perfon every
poffible claim by hereditary right to the Englifh as well as
Scottifh throne, being the heir both of Egbert and William
the conqueror.
AND it is no wonder that a prince of more learning than
wifdom, who could deduce an hereditary title for more than
eight hundred years, mould eafily be taught by the flatterers
of the times, to believe there was fomething divine in this
right, and that the finger of Providence was vifible in it's
prefervation. Whereas, though a wife inftitution, it was
clearly a human inftitution ; and the right inherent in him
no natural, but a pofitive right. And in this and no other
light was it taken by the Englifh parliament (2) ; who by
(2) It is difficult to fay in what light it was confidered by that
parliament, which, in the preamble to the ftatute, declares with
naufeous pedantry, that " upon the knees of tbeir hearts they
VOL. I. U " agnif
209 The RIGHTS BOOK I.
ftatute i Jac. I. c. i. did " recognize and acknowledge, that
immediately upon the diflblution and deceafe of Elizabeth
" late queen of England, the imperial crown thereof did by
" inherent birthright, and lawful and undoubted fucceflion,
< defcend and come to his moft excellent majefty, as being
" lineally, juftly, and lawfully, next and fole heir of the
" blood royal of this realm." Not a word here of any
right immediately derived from heaven : which, if it exifted
any where, muft be fought for among the aborigines of the
ifland, the ancient Britons ; among whofe princes indeed
fome have gone to fearch it for him w .
BUT wild and abfurd as the doctrine of divine right mod
undoubtedly is, it is ftill more aftonifhing, that when fo
many human hereditary rights had centered in this king, his
fon and heir king Charles the firft mould be told by thofe in-
famous judges who pronounced his unparalleled fentence,
that he was an elective prince j elected by his people, and
therefore accountable to them, in his own proper perfon, for
his conduct. The confufion, inftability, and madnefs, which
followed the fatal cataftrophe of that pious and unfortunate
prince, will be a (landing argument in favour of hereditary
monarchy to all future ages, as they proved at laft to the
then deluded people : who, in order to recover that peace and
happinefs which for twenty years together they had loft, in a
folemn parliamentary convention of the eftates reftored the
right heir of the crown. And in the proclamation for that
purpofe, which was drawn up and attended by both houfes *,
they declared, " that, according to their duty and allegi-
" ance, they did heartily, joyfully, and unanimoufly . ac-
w Elizabeth of York, the mother of Gladys only fifter to Lewellin ap Jor-
queen Margaret of Scotland, washeirefs werth the great, had the true rigt the
of the houfe of Mortimer. And Mr. principality of WaLs. Hift. Eiig. iii.
Carte ohferves, that the houfe of Mor- 705.
timer, in virtue of it's defcent from x Com. Journ. 8 May, 1660.
" agnife their conftant faith, obedience, and loyalty to his majefty
' and his royal progeny."
" knowledge
Ch.3 ^PERSONS. 209
" knowledge and proclaim, that immediately upon the
" deceafe of our late fovereign lord king Charles, the im- [210]
" perial crown of thefe realms did by inherent birthright
" and lawful and undoubted fucceflion defcend and come to
" his moft excellent majefty Charles the fecond, as being
t: lineally, juftly, and lawfully, next heir of the blood royal
*' of this realm : and thereunto they moft humbly and faith-
" fully did fubmit and oblige themfelves, their heirs, and
" pofterity for ever."
THUS I think it clearly appears, from the higheft authority
this nation is acquainted with, that the crown of England
hath ever been an hereditary crown j though fubject to limit-
ations by parliament. The remainder of this chapter will
confift principally of thofe inftances, wherein the parliament
has aflerted or exercifed this right of altering and limiting
the fucceffion ; a right which, we have feen, was before ex-
ercifed and aflerted in the reigns of Henry IV., Henry VII.,
Henry VIII., queen Mary, and queen Elizabeth.
THE firft inftance, in point of time, is the famous bill of
exclufion, which raifed fuch a ferment in the latter end of the
reign of king Charles the fecond. It is well known that the
purport of this bill was to have fet afide the king's brother
and prefumptive heir, the duke of York, from the fucceflion,
on the fcore of his being a papift ; that it pafled the houfe of
commons, but was rejected by the lords ; the king having
alfo declared beforehand, that he never would be brought to
confent to it. And from this tranfaftion we may collecl: two
things : i.That the crown was univerfally acknowledged to
be hereditary; and the inheritance indefeafible unlefs by
parliament : elfe it had been needlefs to prefer fuch a bill.
2. That the parliament had a power to have defeated the
inheritance : elfe fuch a bill had been ineffectual. The com-
mons acknowledged the hereditary right then fubfifting ; and
the lords did not difpute the power, but merely the propriety
of an exclufion. However, as the bill took no effet, king
James the fecond fucceeded to the throne of his anceftors :
Ua an4
aid The RIGHTS BOOK 1.
and might have enjoyed it during the remainder of his life,
but for his own infatuated conduct, which (with other con-
curring circumftances) brought on the revolution in 1688.
211 3 THE true ground and principle upon which that memo-
fable event proceeded, was an entirely new cafe in politics,
which had never before happened in our hiftory ; the abdi-
cation of the reigning monarch, and the vacancy of the throne
thereupon. It was not a defeazance of the right of fuccef-
fion, and a new limitation of the crown, by the king and both
houfes of parliament ; it was the act of the nation alone, upon
a conviction that there was no king in being. For in a full
aflembly of the lords and commons, met in a convention upon
the fuppofition of this vacancy, both houfes y came to this
refolution : " that king James the fecond, having endeavoured
" to Subvert the conftitution of the kingdom, by breaking
* f the original contract between king and people ; and, by
the advice of jefuits and other wicked perfons, having
" violated the fundamental laws ; and having withdrawn
" himfelf out of this kingdom ; has abdicated the government,
" and that the throne is thereby vacant." Thus ended at
once, by this fudden and unexpected vacancy of the throne,
the old line of fucceflion ; which from the conqueft had
lafted above fix hundred years, and from the union of the
heptarchy in king Egbert almoft nine hundred. The facts
themfelves thus appealed to, the king's endeavour to fubvert
the conftitution by breaking the original contract,lns violation
of the fundamental laws, and his withdrawing himfelf out of
the kingdom, were evident and notorious; and the confe-
quences drawn from thefe facts (namely, that they amounted
to an abdication of the government; which abdication did not
affect only the perfon of the king himfelf, but alfo all his heirs,
and rendered the throne absolutely and completely vacant)
it belonged to our anceftors to determine (3). For when-
* Com. Journ. 7 Feb. 1688.
( 3 ) The convention in Scotland drew the fame conclufion, viz.
the vacancy of the throne, from premifes and in language much
Ch, 3. *f PERSONS, an
ever a queftion arifes between the fociety at large and any
magiftrate vefted with powers originally delegated by that
fociety, it muft be decided by the voice of the fociety itfelf :
there is not upon earth any other tribunal to refort to. And
that thefe confequences were fairly deduced from thefe facts,
our anceftors have folemnly determined, in a full parliament-
ary convention reprefenting the whole fociety. The reafons
upon which they decided may be found at large in the pan- C 212
Jiamentary proceedings of the times ; and may be matter of
inftruclive amufement for us to contemplate, as a fpecula-
tive point of hiftory. But care muft be taken not to carry
this inquiry farther, than merely for inftruclion or amufe-
ment. The idea, that the consciences of pofterity were con-
cerned in the rectitude of their anceftors* decifions, gave
birth to thofe dangerous political heretics, which fo long dif-
trafted the ftate, but at length are all happily extinguilhed.
I therefore rather chufe to confider this great political mea.
fure upon the folid footing of authority, than to reafon in
it's favour from it's juftice, moderation, or expedience : be-
caufe that might imply a right of diflenting or revolting from
it, in cafe we fhould think it to have been unjuft,oppreflive,
or inexpedient. Whereas, our anceftors having moft indif-
putably a competent jurifdiction to decide this great and im-
portant queftion, and having in fact decided it, it is now be-
come our duty at this diftance of time to acquiefce in their
more bold and intelligible. The myftery of the declaration of the
Englifh convention, betrays that timidity which it was intended to
conceal. " The eftates of the kingdom of Scotland find and declare,
" that king James feventh, being a profefled papift, did aflame the
" royal power, and acted as a king, without ever taking the oath
" required by law ; and had, by the advice of evil and wicked
* counfellors, invaded the fundamental conftitution of this king-
4 dom, and altered it from a legal and limited monarchy to an* ar-
bitrary defpotic power ; and had governed the fame to the fub-
verfion of the. proteftant religion and violation of the laws and
liberties of the nation, inverting all the ends of government,
< whereby he hzdforfaultedthe crown, and the throne was become
<f vacant." TynJaLvi, Fol. Cant, of Rapin,
U 3 deter*
ft 1 2 The RIGHTS BOOK I.
determination, being born under that eftablifhment which
was built upon this foundation, and obliged by every tie,
religious as well as civil, to maintain it.
BUT, while we reft this fundamental tranfalion, in point
of authority, upon grounds the leaft liable to cavil, we are
bound both in juftice and gratitude to add, that it was con-
ducted with a temper and moderation which' naturally arofe
from it's equity ; that, however it might in fome refpedts go
beyond the letter of our antient laws, (the reafon of which
will more fully appear hereafter z ,) it was agreeable to the
fpirit of our conftitution, and the rights of human nature ,
and that though in other points (owing to the peculiar circum-
ftances of things and perfons) it was not altogether fo perfect
as might have been wifhed, yet from thence a new sera com-
menced, in which the bounds of prerogative and liberty have
been better defined, the principles of government more tho-
roughly examined and underftood, and the rights of the fub-
ject more explicitly guarded by legal provifions, than in any
t other period of the Englifh hiftory. In particular it is worthy
[ 213 ] obfervation that the convention, in this their judgment,
avoided with great wifdom the wild extremes into which the
vifionary theories of fome zealous republicans would have
led them. They held that this mifcondudl of king James
amounted to an endeavour to fubvert the conftitution ; and
not to an actual fubverfion, or total diflblution, of the govern-
ment, according to the principles of Mr. Locke a : which
would have reduced the fociety almoft to a ftate of nature ;
would have levelled all diftinctions of honour, rank, offices,
and property j would have annihilated the fovereign power,
and in confequence have repealed all pofitive laws ; and would
have left the people at liberty to have erected a new fyftem of
ftate upon a new foundation of polity. They therefore very
prudently voted it to amount to no more than an abdication
of the government, and a confequent vacancy of the throne j
whereby the government was allowed to fubfift, though the
executive magiftrate was gone, and the kingly office to re-
z See chap. 7. On Gov. p. a. c. 19.
main.
Ch.3 of PERSONS.
main, though king James was no longer king b . And thus
the conftitution was kept entire j which upon every found
principle of government muft otherwife have fallen to pieces,
had fo principal and conftituent a part as the royal authority
been abolifhed, or even fufpended.
THIS fmgle poftulatum, the vacancy of the throne, being
once eftablifhed, the reft that was then done followed almoft
of courfe. For, if the throne be at any time vacant ; (which
may happen by other means befides that of abdication ; as if
all the blood royal mould fail, without any fucceflbr appointed
by parliament ;) if, I fay, a vacancy by any means whatsoever
fhould happen, the right of difpofing of this vacancy feems
naturally to refult to the lords and commons, the truftees
and reprefentatives of the nation (4). For there are no other
hands in which it can fo properly be intruded ; and there is
a neceflity of it's being intruded fomewhere, elfe the whole
frame of government muft be diflblved and perifli. The
lords and commons having therefore determined this main
fundamental article, that there, was a vacancy of the throne,
they proceeded to fill up that vacancy in fuch manner as they
judged the moft proper. And this was done by their declar- [ 214 ]
ation of 1 2 February 1688 c , in the following manner : " that
" William and Mary, prince and princefs of Orange, be,
" and be declared king and queen, to hold the crown and
" royal dignity during their lives, and the life of the fur-
b Law of forfeit. 118, 119. c Corn. Journ. iz Feb. 1688.
(4) The preamble to the bill of rights exprefsly declares, that
" the lords fpiritual and temporal, and commons, aflembled at
" Weftminfter, lawfully, fully, and freely reprefent all the eftates
" of the people of this realm." The lords are not lefs the truftees
and guardians of their country, than the members of the houfe of
commons. It was juftly faid, when the royal prerogatives were
fufpended during his majefty's illnefs, that the two houfes of
" parliament were the organs by which the people exprefled their
will."
U 4 '* vivor
The RIGHTS BOOK I,
Tivor of them ; and that the fole and full exercife of the
' regal power be only in, and executed by, the faid prince
of Orange, in the names of the faid prince and princefs,
'* during their joint lives : and after their deceafes the faid
ft crown and royal dignity to be to the heirs of the body of
the faid princefs ; and for default of fuch iflue to the
** princefs Anne of Denmark and the heirs of her body ;
" and for default of fuch iflue to the heirs of the body of th
<* faid prince of Orange."
PERHAPS, upon the principles before eftablimed, the con-
vention might (if they pleafed) have vefted the regal dignity
in a family entirely new, and ftrangers to the royal blood ;
but they were too well acquainted with the benefits of here-
ditary fucceflion, and the influence which it has by cuftom
over the minds of the people, to depart any farther from the
antient line than temporary neceflity and felf-prefervation
required. They therefore fettled the crown, firft on king
William and queen Mary, king James's eldeft daughter, for
their joint lives : then on the furvivor of them ; and then on
the iflue of queen Mary : upon failure of fuch iflue, it was
limited to the princefs Anne, king James's fecond daughter,
and her iflue ; and laftly, on failure of that to the iflue of
king William, who was the grandfon of Charles the firft, and
nephew as well as fon-in-law of king James the fecond, being
the fon of Mary his eldeft fifter. This fettlement included
all the proteftant pofterity of king Charles I. except fuch
other iffue as king James might at any time have, which was
totally omitted, through fear of a popifh fucceflion. And
this order of fucceflion took effecT; accordingly.
THESE three princes therefore, king William, queen Mary,
and queen Anne, did not take the crown by hereditary right
or defcent, but by way of donation or pur chafe, as the lawyers
[ 21- 1 call it ; by which they mean any method of acquiring an
eftate otherwiie than by defcent. The new fettlement
did not merely confift in excluding king James, and the
perfon pretended to be prince of Wnles, and then fuffer-
Ch. 3. (/PERSONS, 5515
ing the crown to defcend in the old hereditary channel : for
the ufual courfe of defcent was in fome inftances broken
through ; and yet the convention ftill kept it in their eye, and
paid a great, though not total, regard to it. Let us fee how
the fucceflion would have flood, if no abdication had hap.
pened, and king James had left no other iflue than his two
daughters queen Mary and queen Anne. It would have flood
thus : queen Mary and her iflue ; queen Anne and her iflue ;
king William and his iflue. But we may remember, that
queen Mary was only nominally queen, jointly with her
hufband king William, who alone had the regal power; and
king William was perfonally preferred to queen Anne, though
his iflue was poftponed to hers. Clearly therefore thefe
princes were fucceflively in pofleflion of the crown by a title
different from the ufual courfe of defcent.
IT was towards the end of king William's reign, when all
hopes of any furviving iflue from any of thefe princes died
with the duke of Gloucefler, that the king and parliament
thought it neceflary again to exert their power of limiting
and appointing the fucceflion, in order to prevent another
vacancy of the throne ; which muft have enfued upon their
deaths, as no farther provifion was made at the revolution,
than for the iffue of queen Mary, queen Anne, and king
William. The parliament had previoufly by the ftatute of
i W. & M. ft. 2. c. 2. enadled, that every perfon who fhould
be reconciled to, or hold communion with, the fee of Rome,
fhould profefs the popifh religion, or fhould marry a papift,
fhould be excluded and be for ever incapable to inherit, pofTefs,
or enjoy the crown ; and that in fuch cafe the people fhould
be abfolved from their allegiance, and the crown fhould
defcend to fuch perfons, being proteflants, as would have
inherited the fame, in cafe the perfon fo reconciled, holding
communion, profefling, or marrying, were naturally dead.
To al therefore confidently with themfelves, and at the fame
time pay as much regard to the old hereditary line as their [ 216 ]
former refolutions would admit, they turned their eyes on the
princefs Sophia, eleclrefs and dutchefs dowager of Hanover,
the
ti6 The RIGHTS BOOK I.
the moft accomplished princefs of her age d . For, upon the
impending extinction of the proteftant pofterity of Charles
the firft, the old law of regal defcent direfted them to recur
to the defcendants of James the firft ; and the princefs
Sophia, being the youngeft daughter of Elizabeth queen of
Bohemia, who was the daughter of James the firft, was the
neareft of the antient blood royal, who was not incapacitated
by profeffing the popifh religion. On her therefore, and the
heirs of her body, being proteftants, the remainder of the
crown, expectant on the death of king William and queen
Anne without iflue, was fettled by ftatute 12 & 13 W. III.
c. 2. And at the fame time it was enacted, that whofoever
fhould hereafter come to the poflefiion of the crown fhould
join in the communion of the church of England as by law
eftablifhed.
THIS is the laft limitation of the crown that has been made
by parliament : and thefe feveral actual limitations, from the
time of Henry IV. to the prefent, do clearly prove the power
of the king and parliament to new-model or alter the fuc-
ceflion. And indeed it is now again made highly penal to
difpute it : for by the ftatute 6 Ann. c. 7. it is enacted, that if
any perfon malicioufly, advifedly, and directly, (hall maintain,
by writing or printing, that the kings of this realm with the
authority of parliament are not able to make laws to bind the
crown and the defcent thereof, he {hall be guilty of high trea-
fon ; or if he maintains the fame by only preaching, teaching,
or advifed fpeaking, he fhall incur the penalties of ipraemunire .
THE princefs Sophia dying before queen Anne, the inherit-
ance thus limited defcended on her fon and heir king George
the firft j and, having on the death of the queen taken effect
in his perfon, from him it defcended to his late majefty king
George the fecond ; and from him to his grandfon and heir,
our prefent gracious fovereign, king George the third.
d Sandford in his genealogical Iiiftory, Bohemia, fays, the firft was reputed the
Jmbliflied A. D. 1677, fpeaking (page moft learned, the fecond the greateft
535) of the princefles Elizabeth, Louiia, artill, and the laft one of the moft ac-
and Sophia, daughters of the queen of complifhed ladies in Europe,
HENCE
Ch. 3 .
of PERSONS.
HENCE it is eafy to collect, that the title to the crown is at
prefent hereditary, though not quite fo absolutely hereditary
as formerly ; and the common flock or anceftor, from whom
the defcent muft be derived, is alfo different. Formerly
the common flock was king Egbert ; then William the
conqueror ; afterwards in James the firft's time the two
common flocks united, and fo continued till the vacancy of
the throne in 1688: now it is the princefs Sophia, in whom
the inheritance was vefled by the new king and parliament.
Formerly the defcent was abfolute, and the crown went to
the next heir without any reftriction : but now, upon the new
fettlement, the inheritance is conditional ; being limited to
fuch heirs only, of the body of the princefs Sophia, as are
proteftant members of the church of England, and are mar-
ried to none but proteftants.
AND in this due medium confifts, I apprehend, the true
conflitutional notion of the right of fucceflion to the imperial
crown of thefe kingdoms. The extremes between which it
fleers, are each of them equally deftrulive of thofe ends for
which focieties were formed and are kept on foot. Where
the magiftrate, upon every fucceflion, is elected by the peo-
ple, and may by the exprefs provifion of the laws be depofed
(if not punifhed) by his fubjects, this may found like the
perfection of liberty, and look well enough when delineated
on paper ; but in practice will be ever productive of tumult,
contention, and anarchy. And, on the other hand, divine
indefeafible hereditary right, when coupled with the doctrine
of unlimited paffive obedience, is furely of all conftitutions
the moft thoroughly flavifh and dreadful. But when fuch an
hereditary right, as our Jaws have created and vefled in the
royal flock, is clofely interwoven with thofe liberties, which,
we have feen in a former chapter, are equally the inheritance
of the fubject ; this union will form a conflitution, in theory
the moft beautiful of any, in practice the moft approved, and,
I truft, in duration the moft permanent. It was the duty of
an expounder of our laws to lay this conftitution before the
ftudent in it's true and genuine light : it is the duty of every
good Englifhman to underftand, to revere, to defend it.
a 1 8 The RIGHTS BOOK : L
CHAPTER THE FOURTH.
OF THE KING'S ROYAL FAMILY.
HPHE firft and mod confiderable branch of the king's
*" royal family, regarded by the laws of England, is the
queen.
THE queen of England is either queen regent, queen
conforty or queen doivager. The queen regent, regnant, or
fovereign, is flie who holds the crown in her own right ; as
the firft (and perhaps the fecond) queen Mary, queen Eliza-
beth, and queen Anne ; and fuch a one has the fame powers,
prerogatives, rights, dignities, and duties, as if flie had been
a king. This was obferved in the entrance of the laft chap-
ter, and is exprefsly declared by ftatute i Mar. I. ft. 3. c. i.
(i) But the queen confort is the wife of the reigning king;
and {he, by virtue of her marriage, is participant of divers
prerogatives above other women a .
AND, firft, fhe is a public perfon, exempt and diftindl
from the king ; and not, like other married women, fo clofely
Finch. L. 86,
( i ) Mary being the firft queen that had fat upon the Englifti
throne, this ftatute was pafled, as it declares, for " the extin-
" guifliment of the doubt and folly of malicious and ignorant
" perfons," who might be induced to think that a queen could
not exercife all the prerogatives of a king.
connected
Ch.4 of PERSONS. 218
connected as to have loft all legal or feparate exiftence fo long
as the marriage continues. For the queen is of ability to pur-
chafe lands, and to convey them, to make leafes, to grant
copyholds, and do other acts of ownerfhip, without the
concurrence of her lord ; which no other married woman can
do b ; a privilege as old as the Saxon sera c . She is alfo
capable of taking a grant from the king, which no other wife
is from her hufband ; and in this particular {he agrees with
the Auguftci) or piijjima regina conjux divi itnperatoris of the
Roman laws ; who, according to Juftinian d , was equally
capable of making a grant to, and receiving one from, the [ 2 19 ]
emperor. The queen of England hath feparate courts and
officers diftinft from the king's, not only in matters of cere-
mony, but even of law ; and her attorney and folicitor general
are entitled to a place within the bar of his majefty's courts,
together with the king's counfel e . She may likewife fue and
be fued alone, without joining her hufband. She may alfo
have a feparate property in goods as well as lands, and has a
right to difpofe of them by will. In fhort, fhe is in all legal
proceedings looked upon as a feme fole, and not as a feme
covert ; as a tingle, not as a married woman f . For which
the reafon given by fir Edward Coke is this : becaufe the
wifdom of the common law would not have the king (whofe
continual care and ftudy is for the public, and circa ardua
regfiij to be troubled and difquieted on account of his wife's
domeftic affairs ; and therefore it veils in the queen a power
of tranfa&ing her own concerns, without the intervention of
the king, as if fhe was an unmarried woman.
THE queen hath alfo many exemptions, and minute
prerogatives. For inftance : fhe pays no toll ; nor is (he
liable to any amercement in any court h . But in general, un-
lefs where the law has exprefsly declared her exempted, fhe
is upon the fame footing with other fubje&s ; being to all in-
b 4 Rep. 23. f Finch. L. S6. Co. Litt. 133.
c Seld. Jan. Angl. i. 43. e Co. Litt. 133.
" Cod. 5. 16. 26. h Fnich. L. z8j,
e Seld. tit, hon. x. 6. 7.
tents
219
The RIGHTS BOOK I.
tents and purpofes the king's fubjecT:, and not his equal ; in
like manner as, in the imperial law, " Augujla legibus foluta
non eft \"
THE queen hath alfo feme pecuniary advantages, which
form her a diftind revenue : as, in the firft place, flie is
entitled to an antient perquifite called queen-gold, or aurum
reginae ; which is a royal revenue, belonging to every queen
confort during her marriage with the king, and due from
every perfon who hath made a voluntary offering or fine to
the king amounting to ten marks or upwards, for and in
confideration of any privileges, grants, licences, pardons, or
[ 22O ] other matter of royal favour conferred upon him by the king :
and it is due in the proportion of one-tenth part more, over
and above the entire offering or fine made to the king ; and
becomes an atual debt of record to the queen's majefty by
the mere recording of the fine k . As, if an hundred marks of
filver be given to the king for liberty to take in mortmain, or
to have a fair, market, park, chafe, or free-warren : there
the queen is entitled to ten marks in filver, or (what was
formerly an equivalent denomination) to one mark in gold,
by the name of queen-gold, or aurum reginae l . But no fuch
payment is due for any aids or fubfidies granted to the king
in parliament or convocation j nor for fines impofed by
courts on offenders, againfl their will ; nor for voluntary
prefents to the king, without any confideration moving from
him to the fubject ; nor for any fale or contract whereby the
prefent revenues or poffefiions of the crown are granted away
or diminiflied m .
THE original revenue of our antient queens, before and
foon after the conqueft, feems to have confided in certain
reservations or rents out of the demefne lands of the crown,
which were exprefsly appropriated to her majefty, diftinft
from the king. It is frequent in domefday book, after fpeci-
1 ff- I- 3- 31- m Ibid. Pryn. 6, Madox, hift, exch.
k Pryn. Aur. Reg. 2. 342.
1 ia Rep, 2i, 4 Inft. 358.
tying
Ch.4. ^PERSONS. 220
fying the rent due to the crown, to add likewife the quantity
of gold or other tenders referved to the queen n . Thefe were
frequently appropriated to particular purpofes : to buy wool
for her majefty's ufe, to purchafe oil for her lamps p , or to
furnifti her attire from head to foot q , which was frequently
very coftly, as one (ingle robe in the fifth year of Henry II.
Hood the city of London in upwards of fourfcore pounds r . [ 221 ]
A practice fomewhat fimilar to that of the eaftern countries,
where whole cities and provinces were fpecifically affigned
to purchafe particular parts of the queen's apparel s . And,
for a farther addition to her income, this duty of queen-gold
is fuppofed to have been originally granted ; thofe matters of
grace and favour, out of which it arofe, being frequently
obtained from the crown by the powerful interceflion of the
queen. There are traces of it's payments, though obfcure
ones, in the book of domefday and in the great pipe-roll of
Henry the firft *. In the reign of Henry the fecond the
manner of collecting it appears to have been well underftood,
and it forms a diflint head in the antient dialogue of the
exchequer u written in the time of that prince, and ufually
attributed to Gervafe of Tilbury. From that time Downwards
it was regularly claimed and enjoyed by all the queen con-
forts of England till the death of Henry VIII. ; though after
the acceflion of the Tudor family the collecting of it feems
to have been much neglected : and, there being no queen
n BeJtfortffeire Matter. Lefone redd. 22 Hen. II. ibid.} Civitat Land, eor-
fer annum xxii lib. Isfc. ; ad opus regi- dtibanario reginae xx s. (Mag. rot,
nat ii uncias auri. HereforJfdre. 1 Hen. II. Madox hift. exch. 419.)
In Line, \tfc. confuetud. ut praepofttus T Pro roba ad ofus reginae quater
manerii -veniente domlna fua (tegina] in xx t. & vi t. -viii d. (Mag. rot. J Hen. If.
matter ; praefintarct el xviii eras denar. Hid. 450.)
ut effet ipfa laeto animo. Pryn. Ap- s Solere aiunt barbaros reges Perfarum
pend. to Aur. Reg. Z, 3. ac Syroruia uxcribuscivitatet attribu-
Caufa caadunandi lanam reginae. ere, loc modo ; bacc ciuitus mulieri relR*
Domefd. ibid. aiiculuta pracbeal, bacc in cullum, late
P Civitat Litndon. Pro tileo ad lamp, in crines, &c. . (Cic. in ferret*, lib. 3.
ad reginae. (Mag. rot. pip. temp. cap. 33.)
Ben. II. ibid.) l See Madox Dfieptat. epiflolar. 74.
1 Vicecomei Berttfcire, xvi /. pro cap- Pryn. Aur. Reg. Append. J.
fa reginae, (Mag. rot. pip, 19. u lib. 1. c. j6.
conforts
aai The RIGHTS BOOK!.
conforts afterwards till the acceflion of James I., a period of
near fixty years, it's very nature and quantity became then a
matter of doubt : and being referred by the king to the chief
juftices and chief baron, their report of it was fo very unfa-
vourable u , that his confort queen Anne (though fhe claimed
it) yet never thought proper to exact it. In 1635, 1 1 Car. I.,
a time fertile of expedients for raifing money upon dormant
precedents in our old records, (of which (hip-money was a
fatal inftance,) the king, at the petition of his queen, Henrietta
Maria, iflued out his writ" for levying it : but afterwards
purchafed it of his confort at the price often thoufand pounds;
finding it, perhaps, too trifling and troublefome to levy. And
when afterwards, at the reftoration, by the abolition of the
C 222 J military tenures, and the fines that were confequent upon
them, the little that legally remained of this revenue was
reduced to almoft nothing at all, in vain did Mr. Prynne, by
a treatife which does honour to his abilities as a painful and
judicious antiquary, endeavour to excite queen Catharine to
revive this antiquated claim.
ANOTHER antient perquifite belonging to the queen con-
fort, mentioned by all our old writers x , and therefore only
worth notice, is this j that on the taking of a whale on the
coafts, which is a royal fifh, it (hall be divided between the
king and queen ; the head only being the king's property, and
the tail of it the queen's. " Dejlurgione obfervetur, quod rex
tf ilium habebit integrum : de balena vero fujfftcit^ ft rex habeat
" caputy et reglna caudam" The reafon of this whimfical
divifion, affigned by our. ancient records y , was to furnifh the
queen's wardrobe with whalebone (2).
u Mr. Prynne, with feme appearance w 19 Rym. Faetl. ;ai.
of reafon, infmuates, that their re- x Brafton, /. 3. c. i. Britton.f. 17.
fearches were very fuperficial. (Aur. Flet. /. i. c. 45 & 46.
A. 195.) y p '7 n - Aur ' Xe S- I2 ?-
(2) The reafon is more whimfical than the divifion, for the
whalebone lies entirely in the head.
BUT
Ch. 4. of PERSONS* 322
BUT farther: though the queen is in all refpecls a fubje&,
yet, in point of the fecurity of her life and perfon, (he is put
on the fame footing with the king. It is equally treafon (by
the ftatute 25 Edw. III.) to compafs or imagine the death of
our lady the king's companion, as of the king himfelf : and
to violate, or defile the queen confort, amounts to the fame
high crime ; as well in the perfon committing the fact, as in
the queen herfelf, if confenting. A law of Henry the 2 eighth
made it treafon alfo for any woman, who was not a virgin,
to marry the king without informing him thereof: but this
law was foon after repealed (3), it trefpafling too ftrongly, as
well on natural juftice, as female modefty. If however .the
queen be accufed of any fpecies of treafon, me fhall (whether
confort or dowager) be tried by the peers of parliament, as
queen Ann Boleynwas in 28 Hen. VIII. (4)
THE hufband of a queen regnant, as prince George of
Denmark was to queen Anne, is her fubjec~l ; and maybe
guilty of high treafon againft her : but, in the inftance of
Star. 33 Hen. VHT. c. at.
( 3 ) This was a claufe in the at, which attainted queen Cathe-
rine Howard and her accomplices for her incontinence ; but it was
not repealed till the i Edw. VI. c. 12. which abrogated all trea-
fons created fince the memorable ftatute in the 25 Edw. III.
(4) Ann Boleyn was convicted of high treafon in the court of
the lord high-fteward. One of the charges againft this unhappy
queen was, that fhe had faid, " that the king never had had her
" heart ;" a declaration, if made, in which there was probably
more truth than difcretion ; but this was adjudged to be a flander
of her own iffue, and therefore high treafon, according to a ftatute
which had been paffed about two years before for her honour and
prote&ion. Harg. St. Tr. n vol. p. 10.
Articles of impeachment were prepared againft queen Catherine
Parr for herefy, in prefuming to controvert the theological doc-
trines of the king ; but by her dexterity and-addrefs, me baffled
the defigns of her enemies, and regained the affedions of that ca-
pricious monarch. 4 Hume, 259.
Articles of impeachment for high treafon were exhibited againft
Henrietta queen of Car. I., from which fhe faved herfelf by an
efcape to France. 7 Hume, I0
VOL. I. X conjugal
222 The RIGHTS BOOK I.
conjugal infidelity, he is not fubje&ed to the fame penal re-
ftri&ions. For which the reafon feems to be, that if a queen
confort is unfaithful to the royal bed, this may debafe or baf-
tardize the heirs to the crown ; but no fuch danger can be con-
fequent on the infidelity of the hufband to a queen regnant.
A QUEEN dowager is the widow of the king, and as fuch
enjoys moft of the privileges belonging to her as queen con-
fort. But it is not high treafon to confpire her death, or to
violate her chaftity, for the fame reafon as was before alleged,
becaufe the fucceffion to the crown is not thereby endangered.
Yet ftill, pro dignitate regali, no man can marry a queen
dowager without fpecial licence from the king, on pain of
forfeiting his lands and goods. This fir Edward Coke a tells
us was enacted in parliament in 6 Hen. VI., though the
ftatute be not in print (5). But fhe, though an alien born,
{hall ftill be entitled to dower after the king's demife, which
no other alien is b . A queen dowager, when married again
to a fubjet, doth not lofe her regal dignity, as peerefles
dowager do their peerage when they marry commoners. For
Catherine, queen dowager of Henry V., though fhe married
a private gentleman, Owen ap Meredith ap Theodore, com-
monly called Owen Tudor ; yet, by the name of Catherine
queen of England, maintained an action againft the bifhop of
Carlifle. And fo, the queen dowager of Navarre marrying
with Edmond earl of Lancafter, brother to king Edward the
firft, maintained an action of dower (after the death of her
fecond hufband) by the name of queen of Navarre c .
THE prince of Wales, or heir apparent to the crown, and
alfo his royal confort, and the princefs royal, or eldeft daugh-
ter of the king, are likewife peculiarly regarded by the laws.
For, by ftatute 25 Edw. III., to compafs or confpire the
2 Inft. 18. See Riley's Plac. Par!. 72. a Itft. 50.
b Co. Litt- 31.
(5) Mr. Hargrave, in a note to Co. Litt. 133. fays, that no
fuch ftatute can be found. Lord Coke there refers to it by the
8 Hen. VI. NO 7. in 2 Inft. 18. by 6 Hen. VI. N4i. In Riley's
PUc.Parl.it is called a Hen. VI.
death
Ch.4 of PERSONS. 333
death of the former, or to violate the chaftity of either of
the latter, are as much high treafon as to confpire flp death
of the king, or violate the chaftity of the queen.- And this
upon the fame reafon as was before given ; becaufe the
prince of Wales is next in fucceflion to the crown, and to
violate his wife might taint the blood royal with baftardy : and
the eldeft daughter of the king is alfo alone inheritable to the
crown, on failure of iflue male, and therefore more refpefted [ 224 ]
by the laws than any of her younger fillers (.6); infomuch that
upon this, united with other (feodal) principles, while our
military tenures were in force, the king might levy an aid for
marrying his eldeft daughter, and her only. The heir ap-
parent fy) to the crown is ufually made prince of Wales
and earl of Chefter (8), by fpecial creation and invefti-
(6) The ftatute perhaps was not meant to be extended to the
princefs royal when (he had younger brothers living, for the iflue
of their wives muft inherit the crown before the iflue of the prin-
cefs royal, yet their chaftity is not proteded by the ftatute.
( 7 ) This creation has not been confined to the heir apparent,
for both queen Mary and queen Elizabeth were created by their
father Hen. VIII. princefles of Wales, each of them at the time
(the latter after the illegitimation of Mary) being heir prefumptive
to the crown. 4 Hume, 113.
Edward II. was the firft prince of Wales. When his father
had fubdued the kingdom of Wales, he promifed the people of that
country, upon condition of their fubmiffion, to give them a prfcice
who had been born among them, and who could fpeak no other
language.
Upon their acquiefcence with this deceitful offer, he conferred
the principality of Wales upon his fecond foa Edward, then an
infant. Edward, by the death of his eldeft brother Alfonfo, be-
came heir to the crown, and from that time this honour has been
appropriated only to the eldeft fons or eldeft daughter of the kings
of England. 2 Hume, 243.
( 8 ) Selden tells us, " that the earldom of Chefter was once alfo a
" principality, erefted into that title by parliament in 21 Rich. II.,
" wherein it was alfo ordained that it mould be given to the king's
" eldeft fon. But that whole parliament was repealed in the firft
" of Hen. IV., although the earldom hath ufually been fince given
' with the principality of Wales." Seld. Tit. of Hon. 2. c* 5. / i.
X 3 ture j
324 The RIGHTS BOOK I
ture (9); but being the king's eldeft fon (10), he is by inhe-
ritance duke of Cornwall, without any new creation d .
d 8 Rep. I. Seld. tit. of hon. a. 5.
(9) That is, by letters patent under the great feal of England.
(10) Lord Coke, in the Prince's cafe, in the 8th Report, has
exprefsly advanced, that the duchy of Cornwall cannot defcend,
upon the death of the king's firft-born fon, to the eldeft then living.
But this pofition is beyond all controverfy erroneous. Lord Hard-
wicke, in Lomax v. Holmden, i Vef. 294. has obferved, " That
" the eldeft fon of the king of England takes the duchy of Corn-
" wall as primogenitus; although lord Coke at the end of the
" Prince's cafe fays otherwife. But this was not the point there,
" being only an obfenration of his own, and has ever fince been
" held a miftake of that great man. He was alfo miftaken in the
" fat, in faying that Henry VIII. was not duke of Cornwall,
" becaufe not primogenitus ; for lord Bacon in his hiftory of
" Henry VII. affirms the contrary, that the dukedom devolved
** to him upon the death of Arthur : and this is by a great lawyer,
" and who muft have looked into it, as he was then attorney or
" folicitor general." But this point was folemnly determined in
1613, upon the death of prince Henry the eldeft fon of James I.
in the cafe of the duchy of Cornwall, the report of which is in-
ferted at length in Collins's Proceedings on Baronies, p. 148. In
which it was refolved that prince Charles, the king's fecond fon,
was duke of Cornwall by inheritance.
It is more ftrange that lord Coke mould have fallen into this
miftake, as the contrary appears from almoft every record upon
the fubjed.
In the 5th Henry IV., the fecond reign after the creation of the
duchy, there is a record, in which prince Henry makes a grant of
part of the duchy lands to the countefs of Huntingdon ; and the
record ftates, that becaufe the prince is within age, fo that in law
his grant is not effectual to give a fure eftate, he mall pledge his
faith before the king and all the lords of parliament, that when
he attains his full age, he mall grant a fure eftate againft himfelf
and his heirs ; and that his three brothers, Thomas, John, and
Humphrey, (hall in like manner pledge their faith to confirm the
fame eftate,^ iflint aveigne, que Dieux defende, que le dit Duche unques
devlent en lours maint, if it mould fo happen, which God forbid, that
the faid duchy Ihould ever come into their hands, and thereupon
they
Ch.4- ^PERSONS. 224
THE reft of the royal family may be confidered in two
different lights, according to the different fenfes in which the
term, royal family, is ufed. The larger fenfe includes all
thofe, who are by any poflibility inheritable to the crown.
Such, before the revolution, were all the defcendants of
William the conqueror ; who had branched into an amazing
extent, by intermarriages with the antient nobility. Since
the revolution and at of fettlement, it means the proteftant
iflue of the princefs Sophia ; now comparatively few in num-
they all made a promife and took an oath to that effect. Rot*
Parl. 5 Hen. IV. No. 4.
But the fecond fon would not fucceed to the dukedom, if his
eldeft brother left iffue ; in that cafe it would revert to the crown.
The duke of Cornwall muft be both the king's eldeft fon and heir
apparent to the crown ; this appears from a great variety of re-
cords, que let Jit-x, eifnes des rois d' Engleterrc, c'ejl affavoir, ceux
qui ferroient heirs profcheins du roialme d' Engleterre, fuiflent dyes de
Cornewaile. Rot. Parl. 9 Hen. V. No. 20.
In a charter of livery of the duchy by Edw. IV. to his eldeft
fon prince Edward, recited in the rolls of parliament, the following
fentence is part of the preamble : Filii primogeniti regum Anglle
primo nativitatis fu<e die majoris atque perfeftt prtefumuntur ttatis,
Jic quod liberationem diffi ducatus eo tune a nobis peter e valeant, atque
de jure obtinere debeant, ac Ji viginti et unius annorum atatis plena
fuiflent. Rot. Parl. 12 Edw. IV. No. 14. From this and from
other authorities it follows, that a duke of Cornwall is born of. full
age, or is fubjeft to no minority with refpeft to his enjoyment of
the poffeffions annexed to the dukedom.
This is a ftrange fpecies of inheritance, and perhaps is the only-
mode of defcent which depends upon the authority of a ftatute. In
the Prince's cafe, reported by lord Coke, the queftion was, whe-
ther the original grant to Edward the Black Prince, who was cre-
ated in the nth Edw. III. duke of Cornwall, and who was the
firft duke in England after the duke of Normandy, had the au-
thority of parliament, or was an honour conferred by the king's
charter alone ? If the latter, the limitation would have been void,
as nothing lefs than the power of parliament can alter the efta-
bliflied rules of defcent. But notwithftanding it is in the form of
a charter, it was held to be an a& of the legiflature. It concludes,
per ipfum regem et tgtum con/ilium in parliamfnto.
224 The RIGHTS BOOK I.
ber, but which in procefs of time may poflibly be as largely
diffufed. The more confined fenfe includes only thofe, who
are within a certain degree of propinquity to the reigning
prince, and to whom therefore the law pays an extraordinary
regard and refpecT: : but, after that degree is paft, they fall
into the rank of ordinary fubjecls, and are feldom confidered
any farther, unlefs called to the fucceflion upon failure of the
nearer lines. For, though collateral confanguinity is regarded
indefinitely, with refpect to inheritance or fucceflion, yet it
is, and can only be regarded within fome certain limits in any
other refpecl:, by the natural conftitution of things and the
dictates of pofidve law e .
THE younger fons and daughters of the king, and other
branches of the royal family, who are not in the immediate
line of fucceflion, were therefore little farther regarded by the
antient law, than to give them to a certain degree precedence
before all peers and public officers, as well ecclefiaftical as
temporal. This is done by the ftatute 31 Hen. VIII. c 10.
225 ] which enacts, that no perfon, except the king's children,
{hall prefume to fit or have place at the fide of the cloth
of eftate in the parliament chamber ; and that certain great
officers therein named (hall have precedence above all dukes,
except only fuch as (hall happen to be the king's fon, bro-
ther, uncle, nephew (which fir Edward Coke f explains to
fignify grandfon or nepos], or brother's or filler's fon. There-
fore, after thefe degrees are paft, peers or others of the blood
royal are entitled to no place or precedence except what
belongs to them by their perfonal rank or dignity. Which
made fir Edward Walker complain 8 , that by the hafty crea-
tion of prince Rupert to be duke of Cumberland, and of the
earl of Lennox to be duke of that name, previous to the crea-
tion of king Charles's fecond fon, James, to be duke of York,
it might happen that their grandfons would have precedence
of the grandfons of the duke of York.
INDEED, under the defcription of the king's children his
grandfons are held to be included, without having recourfe to
e See effay on collateral confanguiiiity , f 4 Inlt. 362.
in Law-trafts, 410, Oxon, 1771. * Trails, p. 301.
fir
Ch. 4. of PERSONS. 325
fir Edward Coke's interpretation of nephew : and therefore
when his law majefty king George II. created his grandfon
Edward, the fecond fon of Frederick prince of Wales deceafed,
duke of York, and referred it to the houfe of lords to fettle his
place and precedence, they certified 11 that he ought to have place
next to the late duke of Cumberland, the then king's youngeft
fon ; and that he might have a feat on the left hand of the cloth
of eftate. But when, on the acceflion of his prefent majefty,
thofe royal perfonages ceafed to take place as the children, and
ranked only as the brother and uncle, of the king, they alfo
left their feats on the fide of the cloth of eftate : fo that when
the duke of Gloucefter, his majefty's fecond brother, took
his feat in the houfe of peers', he was placed on the upper
end of the earls' bench (on which the dukes ufually fit) next
to his royal highrtefs the duke of York. And in 1718, upon
a queftion referred to all the judges by king Geo. I., it was
refolved by the opinion of ten againft the other two, that the
education and care of all the king's grandchildren while mi-
nors, did belong of right to his majefty as king of this realm,
even during their father's life k ( 1 1 ). But they all agreed, that
the care and approbation of their marriages, when grown up,
belonged to the king their grandfather. And the judges
have more recently concurred in opinion 1 , that this care
and approbation extend alfo to the prefumptive heir of the
crown; though to what other branches of the royal family the
fame did extend they did not find precifely determined. The
moft frequent inftances of the crown's interpofition go no far- r 226 1
ther than nephews and nieces m j but examples are notwant-
h Lords' Journ. 24 Apr. 1760. under king Edward III., 4 Rym. 302.
1 Ibid. 10 Jan. 1765. 403- 4- 5l- 58. 51*. 549- 683 :
k Fortefc. Al. 401 440. | underHenry V., 9Rym. 710.711.741:
1 Lords' Journ. 28 Feb. 1772. under EdwardlV., u Rym. 564.565.
m See (befidesthe inftances cited in 590.601: under Henry VIII. 13 Rym.
Fortefcue Aland) for brothers andjjjlers; 249. 423 : under Edw. VI., ^ St. Tr.
3-8.
( 1 1) The authorities and arguments of the two diflenting judges,
Price and Eyre, are fo full and cogent, that if this queftion had
arifen before the judges were independent of the crown, one would
have been inclined to have fufpe&ed the fincerity of the other ten,
and the authority of the decifion. See Harg. St. Tr, 1 1 vol. 295.
X 4 ing
226 The RIGHTS BOOK I.
ing of it's reaching to more diftant collaterals". And the
ftatute 6 Henry VI. before mentioned, which prohibits the
marriage of a queen dowager without the confent of the king,
afligns this reafon for it (12) ; *' becaufe the difparagement of
" the queen fhall give greater comfort and example to other
f( ladies of eftate, who are of the blood royal, more lightly to
difparage themfelves ." Therefore by the ftatute 28 Hen.
VIII. c. 1 8. (repealed, among other ftatutes of treaforis, by
1 Edw. VI. c. 12.) it was made high treafon for any man to
contract marriage with the king's children or reputed children,
his fillers or aunts ex parte paterna, or the children of his
brethren or fifters ; being exactly the fame degrees, to which
precedence is allowed by the ftatute 31 Hen. VIII. before
mentioned. And now, by ftatute 12 Geo. III. c. 1 1. no de-
fcendatit of the body of king George II. (other than the iflue
of princefles married into foreign families) is capable of con-
tracting matrimony, without the previous confent of the king
fignified under the great feal ; and any marriage contracted
without fuch confent is void. Provided, that fuch of the faid
defendants, as are above the age of twenty-five, may after
a twelvemonth's notice, given to the king's privy council, con-
tract and folemnize marriage without the confent of the
crown ; unlefs both houfes of parliament (hall, before the
expiration of the faid year, expfefsly declare their difappro-
bation of fuch intended marriage. And all perfons folemniz-
ing, aflifting, or being prefent at any fuch prohibited marriage,
fliall incur the penalties of the ftatute of praemunire.
3. 8. For nephews and nieces; under and third couftnt ; under Edward III.,
Henry III., I Rym. 852 : under Ed- 5 Rym. 7*9. : under Richard II.,
ward I., 2 Rym. 489: under Edward 7 Rym. 22J : under Henry VI.
III., 5 Rym. 561 : under Richard II., 10 Rym. 322 : under Henry VII.
7 Rym. 264 : under Richard III., 12 Rym. 529 : under queen Eliza-
12 Rym. 232.244: under Henry beth, Camd. Ann. A.D. 1562. To
VIII., IJ Rym.26. 31. fourth eonftns ; under Henry VII., i
n To great nieces ; under Edward II., Rym. 329. To ihe Hoed royal in ge-
3 Rym. 575. 644. Tofrjl coufins; un- neral; under Richard II., 7 Rym. 787.
der Edward III.,5 Rym. 177. Tofecond Ril. plac. parl. 672.
(12) The occafion of this ftatute was the marriage of Cathe-
rine, mother to Hem VI., \vith Owen Tudor, a private gentleman.
Sec p. 223,
Ch.5 </ PERSONS. 227
CHAPTER THE FIFTH.
OF THE COUNCILS BELONGING TO
THE KING.
'T'HE third point of view, in which we are to confider
the king, is with regard to his councils. For, in order
to aflift him in the difcharge of his duties, the maintenance
of his dignity, and the exertion of his prerogative, the law
hath afligned him a diverfity of councils to advife with.
1. THE firft of thefe is the high court of parliament,
whereof we have already treated at large.
2. SECONDLY, the peers of the realm are by their birth
hereditary counfellors of the crown, and may be called to-
gether by the king to impart their advice in all matters of
importance to the realm, either in time of parliament, or,
which hath been their principal ufe, when there is no par-
liament in being a . Accordingly Bracton b , fpeaking of the
nobility of his time, fays they might probably be called
" confutes, a confulendo ; reges enim tales ftbi affbciant ad con-
" fulendum" And in our law-books 6 it is laid down, that
peers are created for two reafons : I. Ad confulendum y 2. Ad
defendendum, regem : on which account the law gives them
certain great and high privileges: fuch as freedom from
arrefts, sV. even when no parliament is fitting : becaufe it
intends, that they are always affifting the king with their
counfel for the commonwealth, or keeping the realm in fafety
by their prowefs and valour.
* Co. Litt. no. 7 Rep. 34. 9 Rep. 49. 12 Rep. 96.
b /.i.<. 8.
INSTANCES
28 The RIGHTS BOOK!.
INSTANCES of conventions of the peers, to advife the king,
have been in former times very frequent ; though now fallen
into difufe, by reafon of the more regular meetings of par-
liament. Sir Edward Coke d gives us an extract of a record,
5 Hen. IV., concerning an exchange of lands between the
king and the earl of Northumberland, wherein the value of
each was agreed to be fettled by advice of parliament, (if any
fhould be called before the feaft of faint Lucia,) or otherwife
by advice of the grand council of peers which the king pro-
mifes to affemble before the faid feaft, in cafe no parliament
fhall be called. Many other inftances of this kind of meeting
are to be found under our antient kings : though the formal
method of convoking them had been fo long left off, that
when king Charles I. in 1640, iffued out writs under the
great feal to call a great council of all the peers of England to
meet and attend his majefty at York, previous to the meeting
of the long parliament, the earl of Clarendon e mentions it
as a new invention, not before heard of ; that is, as he ex-
plains himfelf, fo old, that it had not been practifed in fome
hundreds of years. But, though there had not fo long be-
fore been an inftance, nor has there been any fmce, of af-
fembling them in fo folemn a manner, yet in cafes of emer-
gency, our princes have at feveral times thought proper to
call for and confult as many of the nobility as could eafily be
got together : as was particularly the cafe with king James
the fecond, after the landing of the prince of Orange ; and
with the prince of Orange himfelf, before he called that
convention parliament, which afterwards called him to the
throne.
BESIDES this general meeting, it is ufually looked upon to
be the right of each particular peer of the realm to demand
an audience of the king, and to lay before him, with decency
and refpecl, fuch matters as he (hall judge of importance to
the public weal. And therefore, in the reign of Edward II.,
it was made an article of impeachment in parliament againft
d I Inft. no. c Hid. b. a.
the
Ch.5 ^PERSONS. 229
the two Hugh Spencers, father and fon, for which they were
banifhed the kingdom, " that they by their evil covin would
" not fuffer the great men of the realm, the king's good coun-
" fellors, to fpeak with the king, or to come near him ; but
" only in the prefence and hearing of the faid Hugh the
" father and Hugh the fon, or one of them, and at their
<f will, and according to fuch things as pleafed them V
3. A THIRD council belonging to the king are, according
to fir Edward Coke 8 , his judges of the courts of law, for.
law matters. And this appears frequently in our ftatutes,
particularly 14 Edw. III. c. 5. and in other books of law.
So that when the king's council is mentioned generally, it
muft be defined, particularized, and underftood, fecundum
fubjeclam materiam : and, if the fubjefl be of a legal nature,
then by the king's council is underftood his council for mat-
ters of law ; namely, his judges. Therefore when by ftatute
1 6 Ric. II. c. 5. it was made a high offence to import into
this kingdom any papal bulls, or other procefles from Rome j
and it was enacted, that the offenders (hould be attached by
their bodies, and brought before the king and his council to
anfwer for fuch offence ; here, by the expreffion of the king's
council^ were underftood the king's judges of his courts of
juftice, the fubject matter being legal : this being the general
way of interpreting the w6rd council h .
4. BUT the principal council belonging to the king is his
privy council, which is generally called, by way of eminence,
the council. And this, according to fir Edward Coke's de-
fcription of it ', is a noble, honourable, and reverend affem-
bly, of the king and fuch as he wills to be of his privy
council, in the king's court or palace. The king's will is
the fole conftituent of a privy counfellor ; and this alfo re-
gulates their number, which of antient time was twelve or
thereabouts. Afterwards it increafed to fo large a number,
that it was found inconvenient for fecrecy and difpatch; and
therefore king Charles the fecond in 1679 limited it to thirty : C 230
f 4 Inft. 53. h 3 Inft. 115.
* I Inft.no. 4 Inft. 53.
whereof
230 The RIGHTS BOOK I.
whereof fifteen were to be the principal officers of ftate, and
thofe to be counsellors virtute officii ; and the other fifteen
were compofed of ten lords and five commoners of the king's
choofing k . But fince that time the number has been much
augmented, and now continues indefinite (i). At the fame
time alfo the antient office of lord prefident of the council
was revived in the perfon of Anthony earl of Shaftfbury (2) ;
an officer, that by the ftatute of 3 T Hen. VIII. c. 10. has pre-
cedence next after the lord chancellor and lord treafurer.
PRIVY counsellors are made by the king's nomination,
without either patent or grant ; and, on taking the neceflary
oaths, they become immediately privy counfellors during the
life of the king that choofes them, but fubjecl; to removal at
his difcretion.
As to the qualifications of members to fit at this board ; any
natural-born fubject of England is capable of being a mem-
ber of the privy council ; taking the proper oaths for fecurity
of the government, and the teft for fecurity of the church.
* Temple's Metn. part 3.
( i ) No inconvenience arifes from the extenfion of their num-
bers, as thofe only attend who are fpecially fummoned for that
particular occafion upon which their advice and affiftance are re.
quired. The cabinet council, as it is called, confifts of thofe minif-
ters of ftate who are more immediately honoured with his majefty's
confidence, and who are fummoned to confult upon the important
and arduous discharge of the executive authority : their number
and feleftion depend only upon the king's pleafure ; and each
member of that council receives a fummons or meflage for every
attendance.
{ 2) It appears from the 4 Inft. 55. that this office exifled in the
time of Ja. I. ; for Lord Coke fays, " there is, and of antient time
hath been, a prefident of the council. This office was never granted
but by letters patent under the great feal durante ieneflacito, and
is very antient ; for John bifhop of Norwich was prefident of the
council in anno 7 regis Johannis. Dormivit tamen hoc officium
rcgnante magna Elizabetha.
But,
Ch. 5. of PERSONS. 230
But, in order to prevent any perfons under foreign attach-
ments from infinuating themfelves into this important truft,
as happened in the reign of king William in many inftances,
it is enacted by the act of fettlement ! , that no perfon born
out of the dominions of the crown of England, unlefs born
of Englifh parents, even though naturalized by parliament,
ihall be capable of being of the privy council.
THE duty of a privy counfellor appears from the oath of
office 1 ", which confifts of feven articles: i.To advife the
king according to the bed of his cunning and difcretion.
2. To advife for the king's honour and good of the public,
without partiality through affection, love, meed, doubt, or
dread. 3. To keep the king's counfel fecret. 4. To avoid
corruption. 5. To help and ftrengthen the execution of what
{hall be there refolved. 6. To withftand all perfons who [ 23 1
would attempt the contrary. And laftly, in general, 7. To
obferve, keep, and do all that a good and true counfellor
ought to do to his fovereign lord.
THE power of the privy council is to inquire into all of-
fences againft the government, and to commit the offenders
to fafe cuftody, in order to take their trial in fome of the
courts of law. But their jurifdidtion herein is only to in-
quire, and not to punifh : and the perfons committed by
them are entitled to their habeas corpus by ftatute 16 Car. I.
c. 10. as much as if committed by an ordinary juitice of the
peace. And, by the fame ftatute, the court of ftarchamber,
and the court of requefts, both of which confifted of privy
counsellors, were diflblved ; and it was declared illegal for
them to take cognizance of any matter of property, belong-
ing to the fubjedls of this kingdom. But, in plantation or
admiralty caufes, which arife out of the jurifdition of this
kingdom; and in matters of lunacy or idiocy", being a fpe-
cial flower of the prerogative ; with regard to thefe, although
they may eventually involve queftions of extenfive property,
1 Stat. i a & 13 Will. III. c. a, ? 3 P- Wms, 108.
4 Inft. 54.
the
231 The RIGHTS BOOK!
the privy council continues to have cognizance, being the
court of appeal in fuch cafes : or rather, the appeal lies to
the king's majefty himfelf in council (3). Whenever alfo a
queftion arifes between two provinces in America or elfe-
where, as concerning the extent of their charters and the
like, the king in his council exercifes original jurifdi&ion
therein, upon the principles of feodal fovereignty. And fo
likewife when any perfon claims an ifland or a province, in
the nature of a feodal principality, by grant from the king or
his anceftors, the determination of that right belongs to his
majefty in council: as was the cafe of the earl of Derby with
regard to the Ifle of Man in the reign of queen Elizabeth,
and the earl of Cardigan and others, as reprefentatives of
the duke of Montague, with relation to the ifland of St. Vin-
cent in 1 764. But from all the dominions of the crown,
excepting Great Britain and Ireland, an appellate jurifdi&ion
[ 232 ] (in the laft refort) is vefted in the fame tribunal ; which
ufually exercifes it's judicial authority in a committee of the
whole privy council, who hear the allegations and proofs,
and make their report to his majefty in council, by whom
the judgment is finally given (4).
THE privileges of privy counfellors, as fuch, (abftra&ed
from their honorary precedence ,) confift principally in the
fecurity which the law has given them againft attempts and
confpiracies to deftroy their lives. For by ftatute 3 Hen. VII.
c. 14. if any of the king's fervants, of his houfehold, con-
fpire or imagine to take away the life of a privy counfellor,
See page 405.
( 3 ) This is, in fadt, a court of juflice, which muft confift of at
leaft three privy counsellors.
(4) The court of privy council cannot decree in perfonam in
England, unlefa in certain criminal matters ; and the court of
chancery cannot decree in rem out of the kingdom. See Lord
Hardwicke's Arg. in Pen. v. Baltimore, i Vef. 444. where the
jurifdi&ion of the council and chancery, upon queftions ariiing
upon fubjeft-matter abroad, is largely difcufled.
it
Ch. 5. of PERSONS. 232
it is felony, though nothing be done upon it. The reafon of
making this ftatute, fir Edward Coke p tells us, was becaufe
fuch a confpiracy was, juft before this parliament, made by
fome of king Henry the feventh's houfehold fervants, and
great mifchief was like to have enfued thereupon. This
extends only to the king's menial fervants. But the ftatute
9 Ann. c. 16. goes farther, and ena&s, that any perfon that
mall unlawfully attempt to kill, or (hall unlawfully aflault,
and ftrike or wound, any privy counfellor in the execution
of his office, (hall be a felon without benefit of clergy. This
ftatute was made upon the daring attempt of the fieur Guif-
card, who ftabbed Mr. Harley, afterwards earl of Oxford,
with a penknife, when under examination for high crimes in
a committee of the privy council.
THE di/olutwn of the privy council depends upon the king's
pleafure j and he may, whenever he thinks proper, difcharge
any particular member, or the whole of it, and appoint an-
other. By the common law alfo it was diffolved ipfo faElo
by the king's demife ; as deriving all it's authority from him.
But now, to prevent the inconveniences of having no coun-
cil in being at the acceflion of a new prince, it is enacted by
ftatute 6 Ann. c. 7. that the privy council fhall continue for
fix months after the demife of the crown, unlefs fooner de-
termined by the fucceflbr.
233 The RIGHTS BOOK I.
*'.' CHAPTER THE SIXTH.
OF THE KING'S DUTIES.
T PROCEED next to the duties incumbent on the king
by our conftitution ; in confederation of which duties his
dignity and prerogative are eftablifhed by the laws of the
land: it being a maxim in the law, that protection and fubjec-
tion are reciprocal a . And thefe reciprocal duties are what,
I apprehend, were meant by the convention of 1688, when
they declared king James had broken the original contract
between king and people. But however, as the terms
of that original contract were in fome meafure difputed,
being alleged to exift principally in theory, and to be only
deducible by reafon and the rules of natural law ; in which
deduction different uriderftandings might very confiderably
differ; it was, after the revolution, judged proper to declare
thefe duties exprefsly, and to reduce that contract to a plain
certainty. So that whatever doubts might be formerly
raifed by weak and fcrupulous minds about the exiftence of
fuch an original contract, they muft now entirely ceafe ;
efpecially with regard to every prince who hath reigned
fince the year 1688.
THE principal duty of the king is to govern his people
according to law. Nee regibus infinita out liber a poteftas, was
the conftitution of our German anceftors on the continent b .
And this is not only confonant to the principles of nature,
[ 234 ] of liberty, of reafon, and of fociety, but has always been
efteemed an exprefs part of the common law of England,
even when prerogative was at the higheft. " The king,"
faith Brafton c , who wrote under Henry III., " ought not
7 Rep. J. b Tac. di tnor, Germ. c. 7. c /. 1. c. 8.
tO
Ch. 6. of PERSONS. 234
" to be fubjeft to man, but to God, and to the law ; for the
" law maketh the king. Let the king therefore render to
" the law, what the law has inverted in him with regard to
" others ; dominion and power : for he is not truly king,
" where will and pleafure rules, and not the law." And
again d , " the king alfo hath a fuperior, namely God, and
" alfo the law, by which he was made a king(i)." Thus
Braclon : and Fortefcue alfo e , having firft well diftinguifhed
between a monarchy abfolutely and defpotically regal, which
is introduced by conqueft and violence, and a political or
civil monarchy, which arifes from mutual confent, (of which
laft fpecies he aflerts the government of England to be,) im-
mediately lays it down as a principle, that " the king of
" England muft rule his people according to the decrees of
" the laws thereof : infomuch that he is bound by an oath
" at his coronation to the obfervance and keeping of his own
" laws." But, to obviate all doubts and difficulties concern-
ing this matter, it is exprefsly declared by ftatute 12 & 13
W. III. c. 2. " that the laws of England are the birthright
" of the people thereof ; and all the kings and queens who
" mail afcend the throne of this realm ought to adminifter
" the government of the fame according to the faid laws :
" and all their officers and minifters ought to ferve them
" refpe&ively according to the fame : and therefore all the
" laws and ftatutes of this realm, for fecuring the eftablimed
11 religion, and the rights and liberties of the people thereof,
" and all other laws and ftatutes of the fame now in force,
" are ratified and confirmed accordingly."
d /. a. c. 16. 3. ' , .. e t. 9. to* 34.
( i ) This is alfo well and ftrongty exprefied in the. year-books :
La ley eft le plus haute inheritance que le roy ad; car par la ley it
meme et touts fes fujets font rules, et Jl la ley ne fuit, ntd roy, et nul
inheritance fera. 19 Hen. VI. 63.
In Englifh : The law is the higheft inheritance which the king
has ; for by the law he himfelf and all his fubje&s are governed, and
if there were no law, there would be neither king nor inheritance.
VOL. I. Y AND,
34 Tht RicHts BOOK I.
AND, as to the terms of the original contract between king
and people, thefe I apprehend to be now couched in the
[ 2 3S 3 coronation oath, whichby the ftatute I W. & M. ft. i. c. 6.
is to be adminiftered to every king and queen, who (hall fuc-
ceed to the imperial crown of thefe realms, by one of the
archbifhops or bifhops of the realm, in the prefence of all
the people ; who on their parts do reciprocally take the oath
of allegiance to the crown. This coronation oath is con-
ceived in the following terms :
" The arckbijbop or hi/hop Jhall fay, Will you folemnly pro-
" mife and fwear to govern the people of this kingdom of
England, and the dominions thereto belonging, according
" to the ftatutes in parliament agreed on, and the laws and
" cuftoms of the fame ? The king or queen Jhall fay, I fo-
' lemnly promife fo to do. drchbi/hop or bijhop. Will
" you to your power caufe law and juftice, in mercy, to be
' executed in all your judgments ? King or queen. I will.
Archbijhop or bijbop. Will you to the utmoft of your
*' power maintain the laws of God, the true profeffion of
" the gofpel, and the proteftant reformed religion eftablifhed
* by the law ? And will you preferve unto the bifhops and
" clergy of this realm, and to the churches committed to
" their charge, all fuch rights and privileges as by law do
" or fliall appertain unto them, or any of them ? King or
** queen. All this I promife to do. ^f tfr this the king or
" queen, laying his or her hand upon the holy go/pels, Jball Jay,
" The things which I have here before promifed I will per-
" form and keep : fo help me God : and then Jball kifs the
took (2)."
( 2 ) And it is required both by the bill of rights, i W. & M.
ft. 2. c. 2. and the ad of fettlement, 12 & 13 W. III. c. 2. that
every king and queen of the age of twelve years, either at their
coronation, or on the firft day of the firft parliament upon the
throne in the houfe of peers (which (hall firft happen), fliall re-
peat and fubfcribe the declaration againft popery according to the
30 Car. *. ft. 2. c. i.
THIS
Ch. 6. tf PERSON*. 235
THIS is the form qf the coronation oath, as it is now pre-
fcribed by our laws ; the principal articles of which appear to
be at leaft as antienf: gs the mirror of juftices f , and even ?.s
the time of Bradlpn f : but the wording of if was, changed at
the revolution, becaufe (as the ftatute alleges) the patfy itfelf
had been fratned in dpubtful words and expreffipns, with ?ela r [ 236
tion to antient laws and conftitutipns at thi* time unknowa H,
However, in what form foever it be conceived, this is mq$
indifputably a fundamental and original egprefs contra^ }
though doubtlefs the duty of protection is impliedly as much
incumbent on the fovereign before coronation as after : in
the fame manner as allegiance to the king becomes the duty
of the fubjecl immediately on the defcent of the crown,
before he has taken the oath of allegiance, or whether he ever
takes it at all. This reciprocal duty of the fubjett will be
confidered in it's proper place. At prefent we are only to
obferve, that in the king's part of this original contract are
exprefied all the duties that a monarch can owe to his people :
viz. to govern according to law ; to execute judgment in
mercy ; and to maintain the eftablifhed religion. And, with
refpect to the latter of thefe three branches, we may farther
remark, that by the act of union, 5 Ann. c. 8. two pre~
' tap. I. . reappeller en launcien eflate, et quilgar-
* /. 3. tr. I. e. 9. dera le feat deftynt efglife et al elergit
* In the old folio abridgment of the et al people de bon accorde, et qvil fact
ftatutes, printed by Lettou and Mach- fa'tre en toutez fez jugementez eviel et
linia in t'ae reign of Edward IV. (penei Jrolt jujllct out discretion et miferictrde,
me] there is preferved a copy of the et quit grauntera a tenure less leyet tt
old coronation-oath 5 which, as the cufumez du roialme, et a foun pviar le*
book is extremely fcarce, I will here face garder et ajfirmer qve lez gentez. du
tranfcribe. Ceo eji le ferement que le feofle a-vont faitez tt ejiiez, et let mat.
rey jurre a foun eoronement : yue il veyt leyz et cujlumet de tut ouflera, et
gardera et meintenera lez droitez et lez ferme peat et ejlablie at feofle de fun
francbifez defeynt efglife grauntez aun- rtialmc en ceo garde cfgardera a foil*
cienaicnt dez droitez royt cbrijiicns dEn- fo.air ; come Dieu lay aide. (Tit. fa
gletere, et quil gardera toulez fez terrez, cramentuat regis, fol. m. ij.) Prynne
bonourc, et d.gnites droiturelx et fronts has alfo given us a copy of the coro-
del coron du roialme dErg'.etere en tout nation-oaths of Richard II., (Signal
maner dentierte fanz null maner dame- Loyalty, II. 246-) Edward VI. (ibiJ.
nufiment, et lez droitez difftrgez dila- aji.) James 1., and Charles I., (Hid.
fide* on perduz de la eorone a foun foiair 169.)
Y 2 ceding
34 Tht RicHts BOOK I.
AND, as to the terms of the original contract between king
and people, thefe I apprehend to be now couched in the
[ 235 ] coronation oath, whichby the ftatute I W. & M. ft. i. c. 6.
is to be administered to every king and queen, who (hall fuc-
ceed to the imperial crown of thefe realms, by one of the
archbifhops or bifhops of the realm, in the prefence of all
the people ; who on their parts do reciprocally take the oath
of allegiance to the crown. This coronation oath is con-
ceived in the following terms :
" The archbijbop or bijhop Jhall fay, Will you folemnly pro-
mife and fwear to govern the people of this kingdom of
England, and the dominions thereto belonging, according
to the ftatutes in parliament agreed on, and the laws and
cuftoms of the fame ? The king or queen Jhall fay, I fo-
lemnly promife fo to do. Archbi/h&p or bijhop. Will
you to your power caufe law and juftice, in mercy, to be
executed in all your judgments ? King or queen. I will.
Archbijhop or bi/bop. Will you to the utmoft of your
power maintain the laws of God, the true profeffion of
the gofpel, and the proteftant reformed religion eftablifhed
by the law ? And will you preferve unto the bifhops and
clergy of this realm, and to the churches committed to
their charge, all fueh rights and privileges as by law do
or mall appertain unto them, or any of them ? King or
queen. All this I promife to do. After this the king or
queen, laying his or her hand lupcn the holy go/pels, Jhall fay,
The things which I have here before promifed I will per-
" form and keep : fo help me God : and then Jhall kifs the
book (2)."
( 2 ) And it is required both by the bill of rights, i W. & M.
ft. 2. c. 2. and the ad of fettlement, 12 & 13 W. III. c. 2. thai
every king and queen of the age of twelve years, either at their
coronation, or on the 6rft day of the firft parliament upon the
throne in the houfe of peers (which (hall firft happen), fliall re-
peat and fubfcribe the declaration againft popery according to the
30 Car. 2. ft. 2. c. i.
THIS
Ch. 6. f
THIS is the form of the cpronatiqn path, as jt is now gr%-
fcribed by our laws ; the principal articles of which appear to
be at leaft as antien as the mirror of jufUces f , and ever} ?.s
the time of Braclpn : but the wording of it was. changed at
the revolution, becaufe (as the ftatute alleges) the oatfy itfelf
had been framed in doubtful words and expreffipns, with rela r [ 236 ]
tion to antient laws and conftitutipns at this time unknpwa \
However, in what form foever it be conceived, this is mq$
indifputably a fundamental and original exprefs contra^ ;
though doubtlefs the duty of protection is impliedly as much
incumbent on the fovereign before coronation as after : in
the fame manner as allegiance to the king becomes the duty
of the fubject immediately on the defcent of the crown,
before he has taken the oath of allegiance, or whether he ever
takes it at all. This reciprocal duty of the fubjetl will be
confidered in it's proper place. At prefent we are only to
obferve, that in the king's part of this original contradl are
exprefied all the duties that a monarch can owe to his people :
viz. to govern according to law ; to execute judgment in
mercy } and to maintain the eftablifhed religion. And, with
refpecl to the latter of thefe three branches, we may farther
remark, that by the act of union, 5 Ann. c. 8. two pre-
f cap. i. a. rtaf feller en launcien ejtate, et quit gar -
/. 3. fr. I. e.g. dera le feat defeynt efglife et al elergit
to In the old folio abridgment of the et al people de ton accorde, et quit face
ftatutes, printed by Lettou and Mach- faire en toutez fez jugementez otuil et
linia in the reign of Edward IV. (penet droit jujlict oue difcretion et eiifericorde,
me] there is preferved a copy of the et quil grauntera a tenure lez leyet tt
old coronation-oath ; which, as the cufumez du roialme, et afoun foiar le*
book is extremely fcarce, I will here face gardcr et affirmer que lez gentez d*
tranfcribe. Ceo eji le ferement que le feople a-vont faitez et ejliez, et let mat-
roy jurre a foun eoronement : que il veyt leyz et cujlumet de ttut ouflera, tt
gardera et meintenera lez droitez et lez ferme peas et ejlallie al people de fu*
francbifez defeynt efglife grauntez aun- roialme en ceo garde cfgardera a foum
cienmcnt dez droitez royt cbrijlicns dEn- foair ; come Dieu lay aide. (Tit. fa.
gletere, et quil gardera touiez fez tcrrcz, crameniuai rtgis, fol. m. y.) Pry one
honours et d.gnites droiturelx et fronts has allb given us a copy of the coro-
del coron du roialme dEng'.etere en tout nation-oaths of Richard II., (Signal
maner dentierte fanz mull maner dame- Loyalty, II. 246-) Edward VI. (ibid,
nufement, et iez droitez differgez dila- ajl.) James 1., and Charles I., (Hid.
pidev ou ferduz de la {front afoun foiair 169.)
Y * ceding
436 The RIGHTS BOOK !.
ceding ftatutes are recited and confirmed ; the one of the
parliament of Scotland, the other of the parliament of
England : which enact ; the former, that every king at his
acceflion fhall take and fubfcribe an oath, to preferve the
proteftant religion and prefbyterian church government in
Scotland ; the latter, that at his coronation he mail take and
fubfcribe a fimilar oath, to preferve the fettlement of the
church of England within England, Ireland, Wales, and
Berwick* and the territories thereunto belonging.
Ch. 7' <f PERSONS.
CHAPTER THE SEVENTH.
OP THE KING'S PREROGATIVE.
TT was obfenred in a former chapter", that one of the
principal bulwarks of civil liberty, or (in other words)
of the Britifli conftitution, was the limitation of the king's
prerogative by bounds fo certain and notorious, that it is
impoffible he fhould ever exceed them, without the confent
of the people, on the one hand ; or without, on the other,
a violation of that original contract, which, in all ftates
impliedly, and in ours moft exprefsly, fubfifts between the
prince and the fubjet. It will now be our bufmcfs to con-
fider this prerogative minutely ; to demonftrate it's neceffity
in general ; and to mark out in the moft important inftances
it's particular extent and reftrictions : from which confider-
ations this conclufion will evidently follow, that the powers,
which are veiled in the crown by the laws of England, are
necefiary for the purpofe of fociety ; and do not intrench
any farther on our natural liberties, than is expedient for the
maintenance of our civil.
THERE cannot be a ftronger proof of that genuine free-
dom, which is the boaft of this age and country, than the
power of difcufling and examining, with decency and refpecl,
the limits of the king's prerogative. A topic, that in fome
former ages was thought too delicate and facred to be pro-
faned by the pen of a fubjecT:. It was ranked among the
arcana imperii : and, like the myfteries of the bona dea t wa
Chap. i. page 141.
Y 3 not
138 The RIGHTS BOOK I.
not differed to be pried into by any but fuch as were initiated
in it's fervice : becaufe perhaps the exertion of the one, like
the folemnities of the other, would not bear the infpecYion
of a rational and fober inquiry. The glorious queen Eli-
zabeth herfelf made.no fcruple to direct her parliaments to
abftain from difcourfmg of matters of ftate b ; and it was the
conftant language of this favourite princefs and her minifters,
that even that auguft aflembly " ought not to deal, to judge,
or to meddle with her majefty's prerogative royal V
And her fucceflbr, king James the firft, who had imbibed
high notions of the divinity of regal fway, more than once
laid it down in his fpeeches, that " as it is atheifm and
" blafphemy in a creature to difpute what the deity may
do, fo it is prefumption and fedition in a fubjeft to difpute
what a king may do in the height of his power : good
" chriftians (he adds) will be content with God's will,
revealed in his word ; and good fubjects will reft in the
king's will, revealed in bis law d ."
BUT, whatever might be the fentiments of fome of our
princes, this was never the language of our antient conftitu-
tion and laws. The limitation of the regal authority was a
firft and eflential principle in all the Gothic fyftems of
government eftablifhed in Europe ; though gradually driven
out and overborne, by violence and chicane, in moft of the
kingdoms on the continent. We have feen, in the preceding
chapter, the fentiments of Bradton and Fortefcue, at the
diftance of two centuries from each other. And fir Henry
Finch, under Charles the firft, after the lapfe of two centu-
ries more, though he lays down the law of prerogative in very
ftrong and emphatical terms, yet qualifies it with a general
reftridion, in regard to the liberties of the people. " The
" king hath a prerogative in all things that are not injurious
f to the fubjeft ; for in them all it muft be remembered,
" that the king's prerogative ftretcheth not to the doing of
" any wrong c ." Nihil enim aliudpctejl rex t nifi idfolum quod
Vfe D'wes,479. King James's works, 557. 531.
c Hid. 645. ' Finch, L. 84, 85,
Ch. 7. ef PERSONS. 239
de jure poteft*. And here it may be forae fatisfa&ion to re-
mark, how widely the civil law differs from our own, with
regard to the authority of the laws over the prince, or (as a
civilian would rather have exprefled it) the authority of the
prince over the laws. It is a maxim of the Englifh law, as
we have feen from Bra&on, that " rex debet ejje fub /ege, quia
" lex facit regem :" the imperial law will tell us, that, in
" omnibus imperatorls excipitur fortuna ; cut ipfas leges Deus
" fubjecit*" We (hall not long hefitate to which of them
to give the preference, as moft conducive to thofe ends for
which focieties were framed, and are kept together j efpe-
cially as the Roman lawyers themfelves feem to be fenfible
of the unreafonablenefs of their own conftitution. " Decet
" tamen$rincipem" fays Paulus, ** fervare leges > quibus tpfe
" folutus eft h ." This is at once laying down the principle
of defpotic power, and at the fame time acknowledging it'*
abfurdity.
By the word prerogative we ufually underhand that fpecial
pre-eminence, which the king hath, over and above all other
perfons, and out of the ordinary courfe of the common law,
in right of his regal dignity. It fignifies, in it's etymology,
(from prae and rag o) fomething that is required or demanded
before, or in preference to, all others. And hence it follows,
that it muft be in it's nature fingular and eccentrical ; that
it can only be applied to thofe rights and capacities which
the king enjoys alone, in contradiftin&ion to others, and not
to thofe which he enjoys in common with any of his fub-
jes ; for if once any one prerogative of the crown could
be held in common with the fubjec~r,, it would ceafe to be
prerogative any longer. And therefore Finch ' lays it down
as a maxim, that the prerogative is that law in cafe of the
king, which is law in no cafe of the fubje&.
PREROGATIVES are either direSt or Incidental. The direQ
are fuch pofitive fubftantial parts of the royal character and
f Braifton, /. 3. tr. i. e. 9- " Ff. 3*- ' *3-
ffrv. 105. $ . ' Finch, L. 8j.
T 4 authority,
240 The RIGHTS BOOK I.
authority, as are rooted in and fpring from the king's poli-
tical perfon, confidered merely by itfelf, without reference
to any other extrinfic circumftahce ; as, the right of fending
embafladors, of creating peers, and of making war or peace.
But fuch prerogatives as are incidental bear always a relation
to fomething elfe, diftinct from the king's perfon ; and are
indeed only exceptions, in favour of the crown, to thofe
general rules that are eftablifhed for the reft of the commu-
nity ; fuch as, that no cofts (hall be recovered againft the
king ; that the king can never be a joint-tenant ; and that
his debt fhall be preferred before a debt to any of his fub-
jects. Thefe, and an infinite number of other inftances,
will better be underftood, when we come regularly to con-
fider the rules themfelves, to which thefe incidental prero-
gatives are exceptions. And therefore we will at prefent
only dwell upon the king's fubftantive or direct prerogatives.
THESE fubftantive or direct prerogatives may again be di-
vided into three kinds : being fuch as regard, firft, the king's
royal character ; fecondly, his royal authority ; and, laftly,
his royal income. Thefe are necefiary, to fecure reverence to
his perfon, obedience to his commands, and an affluent fup-
ply for the ordinary expences of government ; without all of
which it is impoflible to maintain the executive power in due
independence and vigour. Yet in every branch of this large
and extenfive dominion, our free conftitution has interpofed
fuch feafonable checks and reftri&ions, as may curb it from
trampling on thofe liberties, which it was meant to fecure
and eftablifh. The enormous weight of prerogative, if left
to itfelf, (as in arbitrary governments it is,) fpreads havoc
and deftru&ion among all the inferior movements ; but, when
balanced and regulated (as with us) by it's proper counter-
poife, timely and judicioufly applied, it's operations are then
equable and certain, it invigorates the whole machine, and
enables every part to anfwer the end of it's conftru&ion.
IN the prefent chapter we fhall only confider the two firft
of thefe divifions, which relate to the king's political cha-
Ch. 7. of PERSONS. 241
racier and authority ; or, in other words, his dignity and regal
power; to which laft the name of prerogative is frequently
narrowed and confined. The other divifion, which forms
the royal revenue, will require a diftinr. examination ; ac-
cording to the known diftribution of the feodal writers,
who diftinguifh the royal prerogatives into the majora and
minora regalia^ in the latter of which clafies the rights of the
revenue are ranked. For, to ufe their own words, " majora
" regalia imperil prae-eminentiam fpeftant ; minora vero ad
tf commodum pecuniarium immediate attinent ; et haec proprie
<f fifcalia funty et adjusffci pertinent V
r r i- ,"
FIRST, then, of the royal dignity. Under every monarchi-
cal eftablifhment, it is neceflary to diftinguim the prince from
his fubjecls, not only by the outward .pomp and decorations
of majefty, but alfo by afcribing to him certain qualities, as
inherent in his royal capacity, diftint from and fuperior to
thofe of any other individual in the nation. For, though a
philofophical mind will confider the royal perfon merely as
one man appointed by mutual confent to prefide over many
others, and will pay him that reverence and duty which the
principles of fociety demand, yet the mafs of mankind will
be apt to grow infolent and refractory, if taught to confider
their prince as a man of no greater perfection than themfelves.
The law therefore afcribes to the king, in his high political
character, not only large powers and emoluments, which form
his prerogative and revenue, but likewife certain attributes
of a great and tranfcendent nature ; by which the people are
led to confider him in the light of a fuperior being, and to
pay him that awful refpect, which may enable him with
greater eafe to carry on the bufinefs of government. This
is what I underftand by the royal dignity, the feveral branches
of which we mall now proceed to examine.
I. AND, firft, the law afcribes to the king the attribute of
fovereignty, or pre-eminence. " Rex eft vicarius" fays Brae-
ton \ " ei minijler Dei in terra : omnis quidem fub eo ejl^ et ipfe
* Peregrin, de jure fife . I. I. t. I. num. 9. ' /. I. <".8.
V*- ful>
242 The RIGHTS BOOK I.
" fub nul/o, nift tantum fub Deo (i)." He is faid to have im-
perial dignity ; and in charters before the conqueft is fre-
quently ftyled baftleus and imperator, the titles refpeftively
aflumed by the emperors of the eaft and weft m . His realm is
declared to be an empire^ and his crown imperial^ by many acts
of parliament, particularly the ftatutes 24 Hen. VIII. c. 12.
and 25 Hen. VIII. c. 28. n ; which at the fame time declare
the king to be the fupreme head of the realm in matters both
civil and ecclefiaftical, and of confequence inferior to no man
upon earth, dependent on no man, accountable to no man.
Formerly there prevailed a ridiculous notion, propagated by
the German and Italian civilians, that an emperor could do
many things which a king could not, (as the creation of no-
taries and the like,) and that all kings were in fome degree
fubordinate and fubjefl to the emperor of Germany or Rome.
The meaning therefore of the legiflature, when it ufes thefe
terms of empire and imperial, and applies them to the realm
and crown of England, is only to aflert that our king is equally
fovereign and independent within thefe his dominions, as any
emperor is in his empire ; and owes no kind of fubje&ion
to any other potentate upon earth. Hence it is, that no fuit
or action can be brought againft the king, even in civil mat-
ters, becaufe no court can have jurifdiction over him. For
all jurifdiction implies fuperiority of power : authority to try
would be vain and idle, without an authority to redrets ; and
the fentence of a court will be contemptible, unlefs that court
had power to command the execution of it : but who, fays
Finch p , (hall command the king ? Hence it is likewife, that
m Seld. tit. of hon.I. 2. tales baberet in regnofuo, quas imferator
n See allb 24 Geo. II. c. 24- 5 Geo. vindicabat in imperio. (M. Paris, A. D.
III. c. 27. 1095.)
Rex allcgavit, quod iffe omnes liber. P Finch. L. 83.
( i ) What Bra&on adds in the fame chapter ought never to be
forgotten : Ipfe autem rex non debet effe fub homine, fed fub Deo
et fub lege, quia lex facit regem. Attr'ibuat igitur rex legi, quod lex
attribuit ei, videlicet donanationem et potejlatem ; non ejl enim rex t vbi
dominatur voluntas, et non lex.
Nothing was ever better conceived and exprefled refpecting th e
prerogatives of a king, and the juft exercife of them, than the
advice
242
by law the perfon of the king is facred, even though the mea-
fures purfued in his reign be completely tyrannical and arbi-
trary: for no jurifdidHon upon earth has power to try him in
a criminal way ; much lefs to condemn him to punimment.
If any foreign jurifdiHon had this power, as was formerly
claimed by the pope, the independence of the kingdom
would be no more : and if fuch a power were veiled in any
domeftic tribunal, there would foon be an end of the confti- [ 243 ]
tution, by deftroying the free agency of one of the confti-
tuent parts of the fovereign legiilative power.
ARE then, it may be afked, the fubje&s of England totally
deftitute of remedy, in cafe the crown mould invade their
rights, either by private injuries, or public oppreflions ? To
this we may anfwer, that the law has provided a remedy in
both cafes.
AND, firtt, as to private injuries : if any perfon has, in
point of property, a juft demand upon the king, he muft
petition him in his court of chancery, where his chancellor
will adminifter right as a matter of grace, though not upon
compulfion^. And this is entirely confonant to what is laid
down by the writers on natural law. A fubjec~t," fays Puf-
fendorf r , " fo long as he continues a fubject, hath no way to
*'* oblige his prince to give him his due, when he refufes it,
4t though no wife prince will ever refufe to ftand to a lawful
' contract. And if the prince gives the fubjecT: leave to en-
" ter an action againft him, upon fuch contract, in his own
i Finch. L. ajj. See b. III. c. 17. r Law of N. and N. b. 8. c. 10.
advice bequeathed in his laft will by the unfortunate Louis XVI.
to his fon, if he had fucceeded to the throne of France ; viz. " to
" recolleft, that he cannot promote the welfare of the people,
" but by reigning according to the laws ; but to confider, at the
" fame time, that a king cannot make the laws refpec\ed, nor do
" the good he meditates, but in proportion as he has the neceflary
" authority ; and that where this is wanting, he is obftruded in
" his meafures, he is incapable of infpiring refpec~fc, and is, confe-
" quently, more detrimental than ufeful."
court*,
43 The RIGHTS BOOK I.
" courts, the aftion itfelf proceeds rather upon natural equi-
" ty, than upon the municipal laws." For the end of fuch
a&ion is not to compel the prince to obferve the contract, but
to perfuade him. And, as to perfonal wrongs ; it is well
obferved by Mr. Locke % " the harm which the fovereign can
" do in his own perfon not being likely to happen often, nor
u to extend itfelf far ; nor being able, by his fmgle ftrength,
" to fubvert the laws, nor opprefs the body of the people,
" (mould any prince have fo much weaknefs and ill-nature
" as to endeavour to do it,) the inconveniency therefore of
" fome particular mifchiefs, that may happen fometimes,
" when a heady prince comes to the throne, are well recom-
" penfed by the peace of the public and fecurity of the go-
" vernment, in the perfon of the chief magiftrate being thus
fet out of the reach of danger."
244 ] NEXT, as to cafes of ordinary public oppreflion, where the
vitals of the conftitution are not attacked, the law hath alfo
affigned a remedy. For as a king cannot mifufe his power,
without the advice of evil counsellors, and the afliftance of
wicked minifters, thefe men may be examined and punifhed.
The conftitution has therefore provided, by means of indict-
ments, and parliamentary impeachments, that no man (hall
dare to affift the crown in contradiction to the laws of the
land. But it is at the fame time a maxim in thofe laws, that
the king himfelf can do no wrong : fince it would be a great
weaknefs and abfurdity in any fyftem of pofitive law, to de-
fine any poflible wrong, without any poflible redrefs.
FOR, as to fuch public oppreffions as tend to diflblve the
conftitution, and fubvert the fundamentals of government,
they are cafes, which the law will not, out of decency, fup-
pofe : being incapable of diftrufting thofe, whom it has in-
verted with any part of the fupreme power ; fince fuch dif-
truft would render the exercife of that power precarious and
impracticable l . For wherever the law exprefies it's diftruft
5 On Gov. p. 4. 205. wherein the very learned author has
1 See thefe points more fully dif. thrown many new and important
cutfed in the confiderations of tie law lights on the texture of our happy
of forfeiture, 3d edit, page 109 126, conftttution.
of
Ch. 7. of PERSONS. 244
of abufe of power, it always vefts a fuperior coercive autho-
rity in fome other hand to correct it j the very notion of
which deftroys the idea of fovereignty. If therefore (for ex-
ample) the two houfes of parliament, or either of them, had
avowedly a right to animadvert on the king, or each other, or
if the king had a right to animadvert on either of the houfes,
that branch of the legiflature, fo fubjet to animadverfion,
would inftantly ceafe to be part of the fupreme power \ the
balance of the conftitution would be overturned ; and that
branch or branches, in which this jurifdidlion refided, would
be completely fovereign. The fuppofition of law therefore
is, that neither the king nor either houfe of parliament (col-
lectively taken) is capable of doing any wrong ; fince in fuch
cafes the law feels itfelf incapable of furniming any adequate
remedy. For which reafon all oppreffions, which may hap- [ 245 J
pen to fpring from any branch of the fovereign power, muft
neceflarily be out of the reach of any Jlated rule, or exprefs
legal provifiori : but, if ever they unfortunately happen, the
prudence of the times muft provide new remedies upon new
emergencies.
INDEED, it is found, by experience, that whenever the 1
unconftitutional oppreffions, even of the fovereign power,
advance with gigantic ftrides, and threaten defolation to a
ftate, mankind will not be reafoned out of the feelings of
humanity ; nor will facrifice their liberty by a fcrupulous
adherence to thofe political maxims, which were originally
eftablifhed to preferve it. And therefore, though the pofitive
laws are filent, experience will furnifli us with a very re-
markable cafe, wherein nature and reafon prevailed. When
king James the fecond invaded the fundamental conftitution
of the realm, the convention declared an abdication, whereby
the throne was rendered vacant, which induced a new fettle-
ment of the crown. And fo far as this precedent leads, and
no farther, we may now be allowed to lay down the law
of redrefs againft public oppreffion. If therefore any future
prince (hould endeavour to fubvert the conftitution by break-
ing the original contract between king and people, mould
violate the fundamental laws, and ftiould withdraw himfelf
out
245 The RIGHTS BOOK. 1.
out of the kingdom j we are now authorized to declare that
this conjunction of circumftances would amount to an abdi-
cation, and the throne would be thereby vacant. But it is
not for us to fay that any one, or two, of thefe ingredients
would amount to fuch a fituation j for there our precedent
would fail us. In thefe, therefore, or other circumftances,
which a fertile imagination may furniih, fince both law and
hiftory are filent, it becomes us to be filent too ; leaving to
future generations, whenever neceffity and the fafety of the
whole (hall require it, the exertion of thofe inherent (though
latent) powers of fociety, which no climate, no time, no
conftitution, no contract, can ever deftroy or diminish.
246 ] II. BESIDES the attribute of fovereignty, the law alfo
afcribes to the king, in his political capacity, abfolute per-
feftion. The king can do no wrong. Which antient and
fundamental maxim is not to be underftood, as if every
thing tranfafted by the government was of courfe juft and
lawful, but means only two things. Firft, that whatever
is exceptionable in the conduct of public affairs is not to be
imputed to the king, nor is he anfwerable for it personally
to his people : for this doctrine would totally deftroy that
conftitutional independence of the crown, which is neceflary
for the balance of power in our free and active, and there-
fore compounded, conftitution. And, fecondly, it means
that the prerogative of the crown extends not to do any
injury; it is created for the benefit of the people, and there-
fore cannot be exerted to their prejudice u (2).
u Plowd. 487.
{ 2 ) Or perhaps it means that, although the king is fubjeft to the
paffions and infirmities of other men, the conftitution has pre-
fcribed no mode by which he can be made perfonally amenable for
any wrong that he may a&ually commit. The law will therefore
prefume no wrong, where it has provided no remedy.
The inviolability of the king is eflentially neceflary to the free
exercife of thofe high prerogatives which are veiled in him, not
for his own private fplendour and gratification, as the vulgar and
ignorant are too apt to imagine, bot for the fecurity and preferv.
atien of the real happinefo and liberty of his fubjefts.
17 THE
Ch. 7. 3/" PERSONS. 246
THE king, moreover, is not only incapable of doing
wrong, but even of thinking wrong ; he can never mean to
do an improper thing: in him is no folly or weaknefs. And
therefore if the crown mould be induced to grant any fran-
chife gr privilege to a fubject contrary to reafon, or in any
wife prejudicial to the commonwealth, or a private perfon,
the law will not fuppofe the king to have meant either an
unwife or an injurious action, but declares that the king was
deceived in his grant ; and thereupon fuch grant is ren-
dered void, merely upon the foundation of fraud and decep-
tion either by or upon thofe agents whom the crown has
thought proper to employ. For the law will not caft an
imputation on that magiftrate whom it intrufts with the
executive power, as if he was capable of intentionally dif-
regarding his truft : but attributes to mere impofition (to
which the moil perfect of fublunary beings muft ftill con-
tinue liable) thofe little inadvertencies, which, if charged
on the will of the prince, might leffen him in the eyes of his
fubjeds.
YET ftill, notwithstanding this perfonal perfection which [ 247 ]
the law attributes to the fovereign, the conftitution has
allowed a latitude of fuppofing the contrary, in refpect to
both houfes of parliament ; each of which, in it's turn, hath
exerted the right of remonftrating and complaining to the
king even of thofe acts of royalty, which are mod properly
and personally his own; fuch as meffages figned by himfelf,
and fpeeches delivered from the throne. And yet, fuch is
the reverence which is paid to the royal perfon, that though
the two houfes have an undoubted right to confide* thefe
acts of ftate in any light whatever, and accordingly treat
them in their addreffes as perfonally proceeding from the
prince, yet among themfelves (to preferve the more perfect
decency, and for the greater freedom of debate) they ufaally
fuppofe them to flow from the advice of the adminiftration.
But the privilege of canvaffing thus freely the perfonal acts
of the fovereign (either directly, or even through the medium
of his reputed advifers) belongs to no individual, but is con-
fined to thofe auguft aiTembliesj and there too the objections
mud
247 The RIGHTS BOOK I.
muft be propofed with the utmoft refpedl and deference.
One member was fent to the tower w , for fuggefting that his
majefty's anfwer to the addrefs of the commons contained
'* high words to fright the members out of their duty j"
and another x , for faying that a part of the king's fpeech
" feemed rather to be calculated for the meridian of Ger-
" many than Great Britain, and that the king was a ft ranger
" to our language arid conflitution."
IN farther purfuance of this principle, the law alfo deter-
mines that in the king can be no negligence, or laches, and
therefore no delay will bar his right. Nullum tempus occurrit
regi has been the ftanding maxim upon all occafions (3) : for
the law intends that the king is always bufied for the public
good, and therefore has not leifure to afiert his right within
the times limited to fubjet,s y . In the king alfo can be no
F_ 248 ] ft a * n or corruption of blood : for if the heir to the crown
were attainted of treafon,pr felony, and afterwards the crown
fhould defcend to him, this would purge the attainder ipfo
faEio z . And therefore when Hen. VII., who as earl of Rich-
mond flood attainted, came to the crown, it was not thought
neceffary to pafs an al of parliament to reverfe this attainder ;
becaufe, as lord Bacon in his hiftory of that prince informs
us, it was agreed that the aflumption of the crown had at
once purged all attainders. Neither can the king in judg-
w Com. Journ. 18 Nov. 1685. * Finch. L. 82. Co. Litt. 90.
* Ibid. 4 Dec. 1717. z Finch. JL. 82.
( 3 ) In civil actions relating to landed property, by the 9 Geo.III.
c. 1 6, the king like a fubjeft is limited to fixty years. See 3 Vol.
307. This maxim applies alfo to criminal profecutions, which are
brought in the name of the king, and therefore by the common law
there is no limitations in treafons, felonies, or mifdemeanors. By the
7 W. III. c. 7. an indiftment for treafon, except for an attempt
to aflaffinate the king, muft be found within three years after
the commiflion of the treafonable aft. 4 Vol. 351. But where the
legiflature has fixed no limit, nullum tempus occurrit regi holds true :
thus a man may be convifted of murder at any diftance of time
within his life after the commiffion of the crime. This maxim
remains ftill in full force in Ireland. I Ld. Mountm. 365.
16 ment
Ch. 7. of PERSONS. 248
ment of law, as king, ever be a minor and under age ; and
therefore his royal grants and aflents to acts of parliament
are good, though he has not in his natural capacity attained
the legal age of twenty-one a . By a ftatute indeed, 28 Hen.
VIII. c. 17. power was given to future kings to refcind and
revoke all acts of parliament that fhould be made while they
were under the age of twenty-four : but this was repealed
by the ftatute i Edw. VI. c. n. fo far as related to that
prince ; and both ftatutes are declared to be determined by
24 Geo. II. c. 24. It hath alfo been ufually thought prudent
xvhen the heir apparent has been very young, to appoint a
protector, guardian, or regent, for a limited time : but the
very neceffity of fuch extraordinary provifion is fufficient to
demonftrate the truth of that maxim of the common law, that
in the king is no minority ; and therefore he hath no legal
guardian b .
. ;r ,
Co. Litt. 43. a Inft. proem. 3. afliil him. Henry V. on his death bed
b The methods of appointing this named a regent and a guardian for his
guardian or regent have been fo various, infant fun Henry VI., then nine
and the duration of his power fo uncer- months old ; hue the parliament al-
tain, that from hence alone it may be tered his difpofition, and appointed a
collected that his office is unknown to protec~1or and council, with a fpecial
the common law ; and therefore (as fir limited authority. Both thefe princes
Edward Coke fays, 4 Infl.jS.) the fureft remained in a Hate of pupilage till the
way is to have him made by authority age of twenty-three. Edward V. at
ef the great council in parliament. The the age of thirteen was recommended
earl of Pembroke, by his own authority, by his father to the care of the duke
aflTumed in very troublefome times the of Gloucefter; who was declared pro-
regency of Henry III. who was then teclor by the privy council. The fta-
only nine years old; but was declared tutes ij Hen. VIII. c. iz. and a8 Hen.
of full age by the pope at feventeen, VIII. c. 7. provided, that the fucceflbr,
confirmed the great charter at eighteen, if a male and under eighteen, or if a
and took upon him the adminiftration female and under fixteen, fhould be till
of the government at twenty. A guar- fuch sge in the government of his or
dian and council of regency were named her natural mother, (if approved by
for Edward HI. by the parliament, the king,) and fuch other counlellors
which depofed his father ; the young as his majefty fliould by will or other-
king being then fifteen, and not af- wife appoint: and he accordingly ap-
fuming the government till three years pointed his fixteen executors to have
after. When Richard II. fucceeded at the government of his fon Edward VI.,
the age of eleven, the duke of Lancaf- and the kingdom, which executors
ter took upon him the management of elecled the earl of Hertford protector,
the kingdom, till the parliament met, The ftatute 24 Geo. II. c. 24. in cafe the
which appointed a nominal council to crown (huld defcend to any of the chil-
Voi. I. Z dren
249 The RI HTS BOOK I.
III. A THIRD attribute of the king's majefty is his
perpetuity. The law afcribes to him, in his political capacity,
an abfolute immortality. The king never dies. Henry,
Edward, or George may die ; but the king furvives them all.
For immediately upon the deceafe of the reigning prince in
his natural capacity, his kingfhip or imperial dignity, by
aft of law, without any interregnum or interval, is veiled at
once in his heir ; who is, eo inftanti, king to all intents and
purpofes. And fo tender is the law of fuppofing even a
poflibility of his death, that his natural diflblution is gene-
rally called his demife , demiffio regis, vel coronae ; an expref-
fion which fignifies merely a transfer of property j for, as
is obferved in Plowden c , when we fay the demife of the
crown, we mean only that, in confequence of the difunion
of the king's natural body from his body politic, the king-
dom is transferred or demifed to his fuccefibr ; and fo the
royal dignity remains perpetual. Thus too, when Edward
the fourth, in the tenth year of his reign, was driven from
his throne for a few months by the houfe of Lancafter, this
temporary transfer of his dignity was denominated his demife ;
and all procefs was held to be difcontinued, as upon a natural
death of the king d .
f 2 CO 1 ^ E are ne * 4 to conn ^er thofe branches of the royal prero-
gative, which inveft thus our fovereign lord, thus all-perfect
and immortal in his kingly capacity, with a number of
authorities and powers ; in the exertion whereof confifts the
executive part of government. This is wifely placed in a
fingle hand by the Britifh conftitution, for the fake of una-
nimity, ftrength, and difpatch. Were it placed in many
hands, it would be fubjecl to many wills : many wills, if
difunited and drawing different ways, create weaknefs in a
dren of Frederick late prince of Wales reGding in this kingdom ; to be
under the ace of eighteen, appointed guardian and regent, till the fucceflor
the princefs dowager ; and that of attains fuch age, affifted by a council
5 Geo. III. c. 27. in cafe of a like de- of regency; the powers of them all
fcent to any of his prefent majefty's being exprefsly defined and fet down
children, empowers the king to name in the feveral ab.
either the queen, the princefs dowager, c Plowd. 177. 434,
or any defcendant of king George II. " M. 49 Hen. VI. P L i 8.
govern-
Ch. 7. of PERSONS. 250
government ; and to unite thofe feveral wills, and reduce
them to one, is a work of more time and delay than the
exigencies of ftate will afford. The king of England is
therefore not only the chief, but properly the fole, magiftrate
of the nation ; all others acting by commiflion from, and in
due fubordination to him : in like manner as, upon the great
revolution of the Roman ftate, all the powers of the antient
magiftracy of the commonwealth were concentrated in the
new emperor : fo that, as Gravina e expreffes it, " in ejus
" unius perfona veteris reipublicae vis atque majejlas per cumu-
" latas magijlrattium poteftates exprimebatur"
AFTER what has been premifed in this chapter, I (hall not
(I truft) be Confidered as an advocate for arbitrary power,
when I lay it down as a principle, that, in the exertion of law-
ful prerogative, the king is and ought to be abfolute ; that is,
fo far abfolute, that there is no legal authority that can either
delay or refift him. He ruay reject what bills, may make
what treaties, may coin what money, may create what peers,
may pardon what offences he pleafes : unlefs where the con-
ftitution hath exprefsly, or by evident confequence, laid down
fome exception or boundary : declaring, that thus far the
prerogative {hall go, and no farther. For otherwife the power
of the crown would indeed be but a name and a fhadow,
infufficient for the ends of government, if, where it's jurifdic-
tion is clearly eftablifhed or allowed, any man or body of
men were permitted to difobey it, in the ordinary courfe of
law : I fay, in the ordinary courfe of law ; for I do not
now fpeak of thofe extraordinary recourfes to firft principles, [ 251
which are neceffary when the contracts of fociety are in
danger of diffolution, and the law proves too weak a defence
againft the violence of fraud or oppreffion. And yet the
want of attending to this obvious diftind~Hon has occafioned
thefe doftrines, of abfolute power in the prince and of na-
tional refi fiance by the people, to be much mifunderftood and
perverted, by the advocates for flavery on the one hand, and
Grig. I. f 105.
Z 2 the
251 The RIGHTS BOOK I.
the demagogues of faction on the other. The former,
obferving the abfolute fovereignty and tranfcendant dominion
of the crown laid down (as it certainly is) moft ftrongly and
emphatically in our law-books, as well as our homilies, have
denied that any cafe can be excepted from fo general and
pofitive a rule ; forgetting how impoflible it is, in any practi-
cal fyftem of laws, to point out beforehand thofe eccentrical
remedies, which the fudden emergence of national diftrefs
may dictate, and which that alone can juftify. On the other
hand, over-zealous republicans, feeling the abfurdity of
unlimited paffive obedience, have fancifully (or fometimes
fa&ioufly) gone over to the other extreme : and, becaufe
refiftance is juftifiable to the perfon of the prince when the
being of the ftate is endangered, and the public voice proclaims
fuch refiftance neceflary, they have therefore allowed to every
individual the right of determining this expedience, and of
employing private force to refift even private oppreflion. A
do&rine productive of anarchy, and (in confequence) equally
fatal to civil liberty as tyranny itfelf. For civil liberty, rightly
understood, confifts in protecting the rights of individuals by
the united force of fociety : fociety cannot be maintained, and
of courfe can exert no protection, without obedience to fome
fovereign power : and obedience is an empty name, if every
individual has a right to decide how far he himfelf {hall obey.
IN the exertion therefore of thofe prerogatives, which the
law has given him, the king is irrefiftible and abfolute,
according to the forms of the conftitution. And yet, if the
confequence of that exertion be manifeftly to the grievance or
difhonour of the kingdom, the parliament will call his advifers
[ 252 ] to a juft and fevere account. For prerogative confifting (as
Mr. Locke f has well defined it) in the difcretionary power of
acting for the public good, where the pofitive laws are filent ;
if that difcretionary power be abufed to the public detri-
ment, fuch prerogative is exerted in an unconftitutional
manner. Thus a king may make a treaty with a foreign
ftate, which (hall irrevocably bind the nation ; and yet when
' On Gov. a. 166.
fuch
Ch. 7. of PERSONS. 352
fuch treaties have been judged pernicious, impeachments
have purfued thofe minifters, by whofe agency or advice
they were concluded.
THE prerogatives of the crown (in the fenfe under which
we are now confidering them) refpecl; either this nation's in-
tercourfe with foreign nations, or it's own domeftic govern-
ment and civil polity.
WITH regard to foreign concerns, the king is the delegate
or reprefentative of his people. It is impoffible that the in-
dividuals of a ftate, in their collective capacity, can tranfacl:
the affairs of that ftate with another community equally
numerous as themfelves. Unanimity muft be wanting to
their meafures, and ftrength to theexecution of their counfels.
In the king therefore, as in a centre, all the rays of his people
are united, and form by that union a confiftency, fplendour,
and power, that make him feared and refpe&ed by foreign
potentates ; who would fcruple to enter into any engagement
that muft afterv/ards be revifed and ratified by a popular
aflembly. What is done by the royal authority, with regard
to foreign powers, is the act of the whole nation : what is
done without the king's concurrence, is the ac~l only of pri-
vate men. And fo far is this point carried by our law, that
it hath been held *, that fhould all the fubje&s 'of England
make war with a king in league with the king of England,
without the royal aflent, fuch war is no breach of the league.
And, by the ftatute 2 Hen. V. c. <5., any fubjeft committing
a&s of hoftility upon any nation in league with the king
was declared to be guilty of high treafon: and, though that
aft was repealed by the ftatute 20 Hen. VI. c. 1 1. fo far as
relates to the making this offence high treafon, yet ftill it L 2 $3 J
remains a very great offence againft the law of nations, and
punifhable by our laws, either capitally or otherwife, accord-
ijig to the circumftances of the cafe.
THE king, therefore, confidered as the reprefentative of
his people, has the fole power of fending embafladors to
* 4 lull. 152.
Z 3 foreign
253 The RIGHTS Boojc I.
foreign ftates, and receiving embaffadors at home. This
may lead us into a fhort digreffion, by way of enquiry, how
far the municipal laws of England intermeddle with or pro-
tect the rights of thefe meffengers from one potentate to
another, whom we call embaffadors.
THE rights, the powers, the duties, and the privileges of
embaffadors are determined by the law of nature and nations,
and not by any municipal conftitutions. For, as they repre-
fent the perfons of their refpe&ive mafters, who owe no
fubje&ion to any laws but thofe of their own country, their
actions are not fubjecl to the control of the private law of that
ftate wherein they are appointed to refide. He that is fub-
jecl to the coercion of law^s is neceffarily dependent on that
power by whom thofe laws were made : but an embaffador
ought to be independent of every power, except that by which
he is fent ; and of confequence ought not to be fubjec~l to
the mere municipal laws of that nation wherein he is to
exercife his functions. If he grofsly offends, or makes an ill
ufe of his character, he may be fent home and accufed before
his mailer' 1 , who is bound either to do juftice upon him, or
avow himfelf the accomplice of his crimes '. But there is
great difpute among the writers on the laws of nations,
whether this exemption of embaffadors extends to all crimes,
as well natural as pofitive; or whether it only extends to fuch
as are mala probibita y as coining, and not to thofe that are
ma/a in fe, as murder k . Our law feems to have formerly
taken in the reftrition, as well as the general exemption.
t 254 ] ^" or * fc has been held, both by our common lawyers and civi-
lians 1 , that an embaffador is privileged by the law of nature
and nations ; and yet, if he commits any offence againft the
law of reafon and nature, he (hall lofe his privilege m : and
that therefore, if an embaffador confpires the death of the
* As was done with count Gyllen- Barbeyrac's Puff. /. 8. e. 9. 9.* 17.
berg, the Swedifh minifter to Great Van Bynkerflioek Jeforo legator. e. 17,
Britain, A. D. 1716. 18,19.
1 Sp. L. afi. 4J. ' i Roll. Rep. 1 75. 3 Bulftr. 17.
* Van Leeuwen ff. 50. 7, 17. m 4 Inft. 153.
king
Ch. 7. of PERSONS. 254
king in whofe land he is, he may be condemned and exe-
cuted for treafon ; but if he commits any other fpecies of
treafon, it is otherwife, and he muft be fent to his own
kingdom ". And thefe pofitions feem to be built upon good
appearance of reafon. For iince, as we have formerly fhewn,
all municipal Jaws at in fubordination to the primary law
of nature, and, where they annex a punifhment to natural
crimes, are only declaratory of and auxiliary to that law ;
therefore to this natural univerfal rule of juilice embafladors,
as well as other men, are fubjecl in all countries ; and of
confequence it is reasonable that, wherever they tranfgrefs
it, there they fhall be liable to make atonement . But, how-
ever thefe principles might formerly obtain, the general prac-
tice of this country, as well as of the reft of Europe, feems
now to purfue the fentiments of the learned Grotius, that
the fecurity of embafladors is of more importance than the
punifhment of a particular crime q . And therefore few, if
any, examples have happened within a century paft, where
an embaflador has been punifhed for any offence, however
atrocious in its nature (4).
I Roll. Rep. 185. p Securitat legatorum utilitati quae ex
Forfter's Reports, 1 88. foeaa efl fraefontferat. (de jure b. tf
f. 18. 4. 4-)
(4) In the year 1654, during the protectorate of Cromwell,
Don Pataleon Sa, the brother of the Portuguefe embaflador, who
had been joined with him in the fame commiflion, was tried, con-
victed, and executed, for an atrocious murder. Lord Hale, i P.
C. 99. approves of the proceeding; and Mr. J. Forfter (p. 188.)
though a modern writer of law, lays it down that, " for murder and
" other offences of great enormity, which are againft the light of
" nature and the fundamental laws of all fociety, embafladors are
" certainly liable to anfwer in the ordinary courfe of juftice, as
" other perfons offending in the like manner are :" but Mr. Hume
obferves upon this cafe, that " the laws of nations were here
" plainly violated." 7 Vol. 237. And Vattel with irrefiftible
ability contends, that the univerfal inviolability of an embaflador
is an object of much greater importance to the world than their
Z 4 punifliment
254 The RIGHTS BOOK I.
IN refpeft to civil fuits, all the foreign jurifts agree, that
neither an embaflador, nor any of his train or comites, can be
profecuted for any debt or contrail in the courts of that
kingdom wherein he is fent to refide. Yet fir Edward Coke
maintains, that if an embaflador make a contract which is
goody jure gentium, he {hall anfwer for it here <>. But the
truth is, fo few cafes (if any) had arifen, wherein the privi-
lege was either claimed or difputed, even with regard to civil
fuits, that our law-books are (in general) quite filent upon
255 ] it previous to the reign of queen Anne ; when an embafla-
dor from Peter the great, czar of Mufcovy, was actually ar-
refted and taken out of his coach in London r , for a debt of
fifty pounds which he had there contra&ed. Inftead of ap-
i 4 Inft. 153. r 21 July, 1708. Beyer's Annals of queen Anne.
puniftiment for crimes however contrary to natural juftice. " A
" minifter," fays that profound writer, " is often charged with a
** commiifion difagreeable to the prince to whom he is fent. If
" this prince has any power over him, and efpecially if his autho-
" rity be fovereign, how is it to be expected that the minifter can
' execute his matter's orders with a proper freedom of mind,
" fidelity, and firmnefs ? It is neceflary he mould have no fnares
M to fear, that he cannot be diverted from his functions by any
'* chicanery. He muft have nothing to hope, and nothing to fear,
* from the fovereign to whom he is fent. Therefore, in order to
<* the fuccefs of his miniftry, he muft be independent of the fove-
" reign's authority, and of the jurifdi&ion of the country both
" civil and criminal." B. 4. c. 7. f. 92. where this fubjed. is dif-
cufled in a moft luminous manner. The Romans, in the infancy of
their ftate, acknowledged the expediency of the independence of
embafladors ; for when they had received embafladors from the
Tarquin princes whom they had dethroned, and had afterwards
dete&ed thofe embafladors in fecretly committing afts which might
have been confidered as treafon againft the ftate, they fent them
back unpunimed ; upon which Livy obferves, et quanquam vififunt
commijijje, ut hoftium loco effent,jus tamen gentium valuit. Lib. 2. c. 4.
When Bomilcar, qu't Romamjide publicii vtnerat, was profecuted as
an accomplice in the aflaflination of Mafliva, Salluft declares, Jit
revs magis ex aquo bonoque ex jure gentium. Bell. Jug. c. 35.
plying
Ch. 7. of PERSONS. 255
plying to be difcharged upon his privilege, he gave bail to
the action, and the next day complained to the queen. The
perfons who were concerned in the arreft were examined
before the privy council, (of which the lord chief juftice Holt
was at the fame time fworn a member %) and feventeen were
committed to prifon * ; moft of whom were profecuted by
information in the court of queen's bench, at the fuit of the
attorney general u , and at their trial before the lord chief juf-
tice were convicted of the fats by the jury", referring the
queftion of law, how far thofe far,s were criminal, to be
afterwards argued before the judges ; whichj queftion was
never determined (5). In the mean time the czar refented
this affront very highly, and demanded that the fheriff of
Middlefex and all others concerned in the arreft mould be
punimed with inftant death x . But the queen (to the amaze-
ment of that defpotic court) directed her fecretary to inform
him, " that (he could inflict no punifliment upon any, the
" meaneft, of her fubjects, unlefs warranted by the law of
(t the land : and therefore was perfuaded that he would not
infill upon impoffibilities V To fatisfy however the cla-
25 July, 1708. Beyer's Annals of w 14 Feb. 1708. Ibid.
queen Anne. "17 Sept. 1708. Ibid.
1 25. 49 July 1708. Ibid. y it Jan. 1 708. Ibid. Mod. Un.
u 3 Oft. 1 708. Ibid. Hift. xxxv. 454.
(5) In 3 Burr. 1480. lord Mansfield declares, that " the
" ftatute of queen Anne was not occafioned by any doubt, whe-
" ther the law of nations, particularly the part relative to public
" minifters, was not part of the law of England, and the infrac-
" tion criminal, nor intended to vary an iota of it." And he
proceeds to fay, that lord Talbot, lord Hardwicke, and lord
Holt, were clearly of the fame opinion. But the infraction of the
law of nations can only be a mifdemeanor punifhable at the dif-
cretion of the court, by fine, imprifonment, and pillory ; and
therefore lord Mansfield fays, the perfons convifted were never
brought up to receive judgment ; for " no punifhment would have
" been thought by the czar an adequate reparation. Such a fen-
" tence as the court would have given, he would have thought a
frefli infult."
mours
255 "&* RIGHTS BOOK I.
mours of the foreign minifters (who made it a common cauie)
as well as to appeafe the wrath of Peter, a bill was brought
into parliament z , and afterwards paffed into a law % to pre-
vent and punifh fuch outrageous infolence for the future.
And with a copy of this at, elegantly engrofled and illumi-
nated, accompanied by a letter from the queen, an embafla-
dor extraordinary b was commiffioned to appear at Mofcow c ,
who declared " that though her majefty could not inflict fuch
[ 256 ] a punifhment as was required, becaufe of the defect in that
" particular of the former eftablifhed conftitutions of her
" kingdom, yet, with the unanimous confent of the parlia-
ment, fhe had caufed a new act to be pafled, to ferve as a
' law for the future." This humiliating ftep was accepted
as a full fatisfaction by the czar ; and the offenders, at his
requeft, were difcharged from all farther profecution.
THIS ftatute d recites the arreft which had been made, " in
" contempt of the protection granted by her majefty, con-
" trary to the law of nations, and in prejudice of the rights
and privileges, which embafladors and other public minif-
" ters have at all times been thereby poflefled of, and ought
" to be kept facred and inviolable :" wherefore it enacts
that for the future all procefs whereby the perfon of any em-
baflador, or of his domeftic or domeftic fervant may be ar-
refted, or his goods diftrained or feifed, (hall be utterly null
and void j and the perfons profecuting, foliciting, or execut-
ing fuch procefs {hall be deemed violators of the law of na-
tions, and difturbers of the public repofe ; and fhall fuffer
fuch penalties and corporal punifhment as the lord chancellor
and trie two chief juftices, or any two of them, fhall think
fit (6). But it is exprefsly provided, that no trader within the
Com. Journ. 23 Dec. 1708. e 8 Jan. 1709. Boyer,//.
* ai Apr. 1709. Boyer, Ibid. A 7 Ann. c. it.
k Mr. Whitworth.
(6) Perhaps it was intended as a compliment to the czar, that
the offender is deprived of the trial by jury ; and as he is to fuffer
any corporal punifliment that two of thefe three judges may think
17 tfi
Ch. 7. of PERSONS. 256
defcription of the bankrupt laws, who fhall be in the fervice
of any embaflador, {hall be privileged or protected by this
ad , nor fhall any one be punifhed for arrefting an embafla-
dor*s fervant, anlefs his name be regiftered with the fecretary
of ftate, and by him tranfmitted to the fheriffs of London
and Middlefex (7). Exceptions that are ftri&ly conformable
to the rights of embafladors e , as obferved in the mofl
civilized countries. And, in confequence of this ftatute, thus
declaring and enforcing the law of nations, thefe privileges
are now held to be part of the law of the land, and are con- [ 257
ftantly allowed in the courts of common law f .
II. IT is alfo the king's prerogative to make treaties, leagues,
and alliances with foreign ftates and princes. For it is by the
law of nations eflential to the goodnefs of a league, that it be
made by the fovereign power B ; and then it is binding upon
the whole community : and in England the fovereign power,
quoad hoc, is vefted in the perfon of the king. Whatever con-
tracts therefore he engages in, no other power in the kingdom
can legally delay, refift, or annul, And yet, left this plenitude
of authority fhould be abufed to the detriment of the public,
the conftitution (as was hinted before) hath here interpofed
a check, by die means of parliamentary impeachment, for
the punifhment of fuch minifters as from criminal motives
e Saefe quaefttum eft an ctmitum nu-' tionifve officio non funt. Quum autem
mero et jure babendi funt, qui legatum ea ret nonnunquam turbos JcJerit, op-
comitantur, non tit inflruflior Jtat Icga- timo cxemplo in quibufdam aulit elim
tio t fed ttnice ut lucre fuo confulaat, in- receftum fuit, vt legatui tenerctur et*-
Jlitoret forte et mercatorci. t, quam-vis bibere nomenclaturnm comitum fuorum.
tat faepe defenderint et comitum loco Van Bynkerfll. c. IJ. profefnem.
babere -voluerint legat't, affaret tamen f Fitzg. aOO. Stra. 797.
faiit eo non pertinere, qui in legati Icga- * PufE L. of N. b. 8. c. 9. 6.
fit to inflift, the czar would be induced to believe, that any future
requifition of inftant death could be complied with ; but as the
ftatute has not made the offence felony, of courfe this punifhment
cannot extend to the privation of life.
(7) But he muft befides be actually and bona Jide a domeftic
fervant. 3 Burr. 1676. I Wilf. 20. 78.
advife
257 ^e RIGHTS BOOK I.
advife or conclude any treaty, which ihall afterwards be judged
to derogate from the honour and intereft of the nation.
III. UPON the fame principle the king has alfo the fole
prerogative of making war and peace. For it is held by all
the writers on the law of nature and nations, that the right of
making war, which by nature fubfifted in every individual,
is given up by all private perfons that enter into fociety, and
is veiled in the fovereign power h : and this right is given up,
not only by individuals, but even by the entire body of
people, that are under the dominion of a fovereign. It would
indeed be extremely improper, that any number of fubjeb
ihould have the power of binding the fupreme magiftrate, and
putting him againft his will in a ftate of war. Whatever
hoftilities therefore may be committed by private citizens, the
ftate ought not to be afFe&ed thereby ; unlefs that ihould
juftify their proceedings, and thereby become partner in the
guilt. Such unauthorifed volunteers in violence are not
ranked among open enemies, but are treated like pirates and
robbers : according to that rule of the civil law ' : boftes hi funt
qui nobisy out quibus nos t publice bellum decrevimus : caeteri
latrones out praedones funt. And the reafon which is given by
258 3 Grotius j , why according to the law of nations a denunciation
of war ought always to precede the actual commencement of
hoftilities, is not fo much that the enemy may be put upon
his guard, (which is matter rather of magnanimity than right,)
but that it may be certainly clear that the war is not under-
taken by private perfons, but by the will of the whole com-
munity; whofe right of willing is in this cafe transferred to the
fupreme magiftrate by the fundamental laws of fociety. So
that in order to make war completely effectual, it is necef-
fary with us in England that it be publicly declared and duly
proclaimed by the king's authority ; and, then, all parts of
both the contending nations, from the higheft to the loweft,
are bound by it. And wherever the right refides of beginning
a national war, there alfo muft refide the right of ending it,
" Puff. b.8. c.6. 8. and Brbyr. ' Ff. 50. 16. 118.
in lot. ' Dejurt b. b* p. 1. 3. c . 3. 1 1.
Ch. 7. of PERSONS. 258
or the power of making peace. And the fame check of par-
liamentary impeachment, for improper or inglorious conduct,
in beginning, conducting, or concluding a national war, is in
general fufficient to reftrain the minifters of the crown from
a wanton or injurious exertion of this great prerogative.
IV. BUT, as the delay of making war may fometimes be
detrimental to individuals who have fuffered by depredations
from foreign potentates, our laws have in fome refpe&s armed
the fubjeft with powers to impel the prerogative ; by directing
the minifters of the crown to iflue letters of marque and re-
prifal upon due demand : the prerogative of granting which
is nearly related to, and plainly derived from, that other of
making war ; this being indeed only an incomplete ftate of
hoftilities, and generally ending in a formal denunciation of
war. Thefe letters are grantable by the law of nations k ,
whenever the fubje&s of one ftate are opprefled and injured by
thofe of another j and juftice is denied by that ftate to which
the oppreffbr belongs. In this cafe letters of marque and repri-
fal (words ufed as fynonymous ; and Signifying, the latter, a
taking in return, the former, the paffing the frontiers in order
to fuch taking ! ) may be obtained, in order to feife the bodies
or goods of the fubjets of the offending ftate, until fatisfa&ion
be made, wherever they happen to be found. And indeed this [ 2 ro
cuftom of reprifal feems dictated by nature herfelf ; for which
reafon we find in the moft antient times very notable inftances
of it m . But here the necefli ty is obvious of calling in the
fovereign power, to determine when reprifals may be made ;
elfe every private fufferer would be a judge in his own caufe.
In purfuance of which principle, it is with us declared by
the ftatute 4 Hen. V. c. 7., that if any fubjets of the realm
are opprefled in the time of truce by any foreigners, the king
k Ibid. 1.3. c.i. 4 15*5. won at the Elian games by his father
1 Dufrefne, tit. Morca. Neleus, and for debts due to many pri-
* See the account given by Neftor, vate fubjecls of the Pylian kingdom,
in the eleventh book of the Iliad, of the out of which booty the king took three
reprifals made by himfelf on the Epeian hundred head of cattle for his own de-
nation ; from wliom he took a multitude mand, and the reft were equitably di-
of cattle, as a fatisfacYion for a prize vided among the other creditors.
will
259 Tbf RIGHTS BOOK I.
will grant marque in due form, to all that feel themfelves
grieved. Which form is thus dire&ed to be obferved : the
fufferer muft firft apply to the lord privy-feal ; and he fhall
make out letters of requeft under the privy-feal j and if, after
fuch requeft of fatisfa&ion made, the party required do not
within convenient time make due fatisfaftion or reftitution
to the party grieved, the lord chancellor fhall make him out
letters of marque under the great feal ; and by virtue of
thefe he may attack and feife the property of the aggreflbr
nation, without hazard of being condemned as a robber or
pirate (8).
(8) The ftatute of Hen. V. is confined to the time of a truce
wherein there is no exprefs mention that all marques and reprifala
(hall ceafe. This manner of granting letters of marque I conceive
has long been difufed, and according to the ftatute of Hen. V.
could only be granted to perfons a&ually aggrieved But if,
during a war, a fubjeft without any commiffion from the king mould
take an enemy's (hip, the prize would not be the property of the
captor, but would be one of the droits of admiralty, and would
belong to the king, or his grantee the admiral. Garth. 399.
2 Wood. 433. Therefore to encourage merchants and others to
fit out privateers or armed mips in time of war, by various afts of
parliament, the lord high admiral, or the commiffioners of the
admiralty, are empowered to grant commiflions to the owners of
fuch mips ; and the prizes captured mail be divided according to
a contract entered into between the owners and the captain and
crew of the privateer. But the owners, before the commiffion is
granted, mall give fecurity to the admiralty to make compenfation
for any violation of treaties between thofe powers with whom the
nation is at peace. And by the 24 Geo. III. c. 47. they fhall
alfo give fecurity that fuch armed (hip (hall not be employed in
fmuggling. Thefe commiffions in the ftatutes, and upon all
occafions, are now called letters of marque. 29 Geo. II. c. 34.
19 Geo. III. c. 67. Molloy, c. 3. 8. Or fometimes the lords
of the admiralty have this authority by a proclamation from
the king in council, as was the cafe in December 1780, to
empower them to grant letters of marque to feize the (hips of the
Dutch.
V. UPOH
Ch. 7. of PERSONS. 259
V. UPON exa&ly the fame reafon ftands the prerogative of
granting fafe-conducts, without which by the law of nations
no member of one fociety has a right to intrude into another.
And therefore Puffendorf very juftly refolves", that it is left
in the power of all ftates, to take fuch meafures about the
admiflion of ftrangers, as they think convenient ; thofe being
ever excepted who are driven on the coaft by neceflity, or by
any caufe that deferves pity or companion. Great tendernefs
is Ihewn by our laws, not only to foreigners in diftrefs (as
will appear when we come to fpeak of fhipwrecks), but with
regard alfo to the admiflion of ftrangers who come fponta-
neoufly. For fo long as their nation continues at peace with
ours, and they themfelves behave peaceably, they are under [ 260 3
the king's protection; though liable to be fent home whenever
the king fees occafion. But no fubject of a nation at war
with us can, by the law of nations, come into the realm, nor
can travel himfelf upon the high feas, or fend his goods and
merchandize from one place to another, without danger of
being feifed by our fubjefts, unlefs he has letters of fafe-
condudt ; which by divers antient ftatutes muft be granted
under the king's great feal and enrolled in chancery, or elfe
are of no effecT: : the king being fuppofed the beft judge of
fuch emergencies, as may deferve exemption from the general
law of arms. But p'aflports under the king's fign-manual, or
licences from his embafladors abroad, are now more ufually
obtained, and are allowed to be of equal validity (9).
"Law of N. and N. b.3. 0.3. ij Hen.VI. 0.3. 18 Hen. VI.
9. c. 8. 29 Hen. VI. c. i.
(9) In order to prevent foreigners from arriving and continuing
in England for the purpofes of promoting fedition and confufion in
this country, an aft was pafled 33 Geo. III. c. 4. in which various
reftraints were impofed upon all aliens whatever.
By the 42 Geo. III. c. 92. that aft was repealed, but it fub-
ftituted provifions nearly fimilar to thofe of the former flatute.
It direfts that all matters of {hips, upon their arrival at any place
in this realm, (hall in writing declare to the officer of the cuftoms
the number of aliens on board, and if any have been previoufly
landed, and their rank and defcription.
And every alien, upon his landing, mail declare to the fame
officer the name of the (hip in which he came, his own name, rank,
and
260 The RIGHTS BOOK I.
INDEED the law of England, as a commercial country,
pays a very particular regard to foreign merchants, in innu-
merable inftances* One I cannot omit to mention : that by
rnagna carta p it is provided that all merchants (unlefs pub-
licly prohibited beforehand) (hall have fafe-conduft to depart
from, to come into, to tarry in, and to go through England,
for the exercife of merchandize, without any unreafonable
imports, except in time of war : and, if a war breaks out
between us and their country, they fhall be attached (if in
England) without harm of body or goods, till the king or his
chief jufticiary be informed how our merchants are treated
in the land with which we are at war ; and, if ours be fecure
in that land, they fhall be fecure in ours. This feems to
have been a common rule of equity among all the northern
nations ; for we learn from Stiernhook q , that it was a maxim
among the Goths and Swedes, " quam legem exteri nobis
" pofuere y eandem illis ponemus." But it is fomewhat extra-
ordinary that it fliould have found a place in magna carta, a
mere interior treaty between the king and his natural-born
fubjects : which occafions the learned Motefquieu to remark
P c. 30. q DC jure Sueon. L 3. c. 4.
and fituation in life, the place from whence he came, and to which
he is going, and the name and refidence of any perfon to whom
he is known. For difobedience of the directions of this llatute,
an alien may be committed to gaol, and in fome cafes may be
tranfported for life.
This ftatute contains an important claufe, ftating that a treaty
had been made between his majefty, the French republic, his Ca-
tholic majefty, and the Batavian republic, by which it was agreed
that the contracting parties mall, on requifitions made by them-
felves or their minifters, deliver up to juftice perfons accufed of
the crimes of murder, forgery, or fraudulent bankruptcy com-
mitted within the jurifdi&ion of the requiring party, provided
that this (hall be done only when the evidence of the criminality
(hall be fo authenticated as that the laws of the country, where
the perfon fo accufed fhall be found, would juftify his apprehenfion
and commitment for trial ; it then direfts that upon a warrant from
one of his majefty 's fecretaries of ftate, fignifying that fuch requi-
fition had been made, all juftices of the peace might apprehend
fuch offenders, that they may be delivered up to juftice.
15 By
Ch. 7. of PERSONS. 260
with a degree of admiration, " that the Englifti have made
" the protection of foreign merchants one of the articles of [ 2<5i ]
" their national liberty 1 "." But indeed it well juftifies another
obfervation which he has made % " that the Englifti know
" better than any other people upon earth, how to value at
". the fame time thefe three great advantages, religion,
" liberty, and commerce." Very different from the genius
of the Roman people ; who in their manners, their confti-
tution, and even in their laws, treated commerce as a dif-
honourable employment, and prohibited the exercife thereof
to perfons of birth, or rank, or fortune * : and equally dif-
ferent from the bigotry of the canoniils, who looked on trade
as inconfiftent with chriftianity u , and determined at the
council of Melfi, under pope Urban II. A.D. 1090, that it
was impoffible with a fafe confcience to exercife any traffic,
or follow the profeffion of the law w .
THESE are the principal prerogatives of the king refpecl-
ing this nation's intercourfe with foreign nations ; in all of
which he is confidered as the delegate or reprefentative of
his people. But in domeftic affairs he is confidered in a
great variety of characters, and from thence there arifes an
abundant number of other prerogatives.
r Sp. L. ao. 13. tlanut debet e/e mercator ; out ft vo-
8 Ibid. ao. 6. luerlt effe, frojiciatur de tceltfia Dei.
' Nobiliorct natalibus, ct fjonorum Decret. I. 88. II.
luct confficuos, et fatrimonio ditiores, * Falfa fit poenitentia [laid] cum
pernieiofum urbibut merctmonium ex- fenitus ah ojficia curtail vel ncgotiali
ercere proLibemus. C. 4. 63. 3. non recedit, quae fine feccatis agi ullct
u Homo mercator vix out nunquam rations non fraevalct. Al. Condi, apud
potejl Deo placere ; et idea nullus cbrif- Baron, c. 16.
By the 43 Geo. III. c. 155. the laft mentioned ad is repealed,
and the laft claufe is not renewed.
This aft contains a great variety of regulations refpefting aliens.
It enafts, that his majefty, by his proclamation, may order all
aliens to regifter themfelves as may be therein directed, and to ob-
tain a licence under fuch reftriftions as fliall be fpecified ; and to
give an account of all arms in their poflefiion, and, if neceflary,
to deliver them up.
VOL. I. A a I. FIRST,
261 The RIGHTS BOOK I.
I. FIRST, he is a conftituent part of the fupreme legifla-
tive power ; and, as fuch, has the prerogative of rejecting
fuch provifions in parliament, as he judges improper to be
pa{Ted. The expediency of which conftitution has before
been evinced at large x . I (hall only farther remark, that the
king is not bound by any act of parliament, unlefs he be
named therein by fpecial and particular words. The mod
general words that can be devifed (" any perfon or perfons,
(( bodies politic or corporate, s*<:.") affect not him in the
2^2 ] lead, if they may tend to reftrain or diminifh any of his
rights or interefts y . For it would be of moft mifchievous
confequence to the public, if the ftrength of the executive
power were liable to be curtailed without it's own exprefs
confent, by conftructidns and implications of the fubject.
Yet, where an act of parliament is exprefsly made for the
prefervation of public rights and the fuppreffion of public
wrongs, and does not interfere with the eftablifhed rights of
the crown, it is faid to be binding as well upon the king as upon
the fubject z : and, likewife the king may take the benefit of
any particular act, though he be not efpecially named*.
II. THE king is confidered, in the next place, as the
generaliffimo, or the firft in the military command, within the
kingdom. The great end of fociety is to protect the weakncfs
of individuals by the united ftrength of the community : and
the principal ufe of government is to direct that united
ftrength in the beft and moft effectual manner, to anfwer the
end propofed. Monarchical government is allowed to be the
fitteft of any for this purpofe : it follows therefore, from the
very end of it's institution, that in a monarchy the military
power muft be trufted in the hands of the prince.
IN this capacity therefore, of general of the kingdom, the
king has the fole power of railing and regulating fleets and
armies. Of the manner in which they are raifed and regu-
lated I {hall fpeak more, when I come to confider the milt-
* Ch. a. p. 154. z Ibid. 71.
' 1 1 Rep. 74. 7 Rep. 3 a.
tary
Ch. 7. of PfiRSpNs^ ,262
tary ftate. We are now only to confider the prerogative of
enlifting and of governing them ; which indeed was difputed
and claimed, contrary to all reafon and precedent, by the long
parliament of king Charles I. ; but, upon the reftoration of
his fon, was folemnly declared by the ftatute 13 Car. II.
c; 6. to be in the king alone ; for that the fole fupreme go-
vernment and command of the militia within all his majefty's
realms and dominions, and of all forces by fea and land, and
of all forts and places of ftrength, ever was and is the un-
doubted right of his majefty, and his royal predeceflbrs, kings [ 263 ]
and queens of England ; and that both or either houfe of
parliament cannot, nor ought to, pretend to the fame.
THIS ftatute, it is obvious to obferve, extends not only to
fleets and armies, but alfo to forts, and other places of
ftrength, within the realm : the fole prerogative as well of
creeling, as manning and governing of which belongs to the
king in his capacity of general of the kingdom b : and all
lands were formerly fubjed to a tax, for building of caftles
wherever the king thought proper. This was one of the
three things, from contributing to the performance of which
no lands were exempted ; and therefore called by our Saxon
anceftors the trinoda necejjitas : fc. pontis reparatio^ arch con-
JlruEl'iO) et expeditio contra ho/tern c . And this they were called
upon to do fo often that, as fir Edward Coke from M. Paris
aflfures us d , there were in the time of Henry II. 1115 caftles
fubfifting in England. The inconveniences of which,
when granted out to private fubjects, the lordly barons of
thofe times, were feverely felt by the whole kingdom j for,
as William of Newburgh remarks in the reign of king
Stephen, u erant in Anglia quodammodo tot reges vel potius
" tyranni, quot domini caftellorum :" but it was felt by none
more fenfibly than by two fucceeding princes, king John and
king Henry III. And therefore, the greateft part of them
being demolimed in the barons' wars, the kings of after-
" a Inft. 30. * a Inft. 31.
c Cowel's Interp. tit. cafellorum ope-
ratio. Seld. Jan. Ang, i. 43.
A a 2 times
163 The RIGHTS BOOK I.
times have been very cautious of fuffering them to be rebuilt
in a fortified manner : and fir Edward Coke lays it down %
that no fubjccl can build a caftle, or houfe of ftrength, im-
battled, or other fortrefs defenfible, without the licence of
the king ; for the danger which might enfue, if every man at
his pleafure might do it.
IT is partly upon the fame, and partly upon a fifcal found-
ation, to fecure his marine revenue, that the king has the
[ 264 ] prerogative of appointing ports and havens t or fuch places
only for perfons and merchandize to pafs into and out of the
realm, as he in his wifdom fees proper. By the feodal law
all navigable rivers and havens were computed among the
regalia f , and were fubje& to the fovereign of the ftate. And
in England it hath always been holden, that the king is lord
of the whole fhore g , and particularly is the guardian of the
ports and havens, which are the inlets and gates of the realm' 1 :
and therefore, fo early as the reign of king John, we find
fhips feifed by the king's officers for putting in at a place
that was not a legal port '. Thefe legal ports were undoubt-
edly at firft afligned by the crown ; fince to each of them a
court of portmote is incident 14 , the jurifdi&ion of which
muft flow from the royal authority : the great ports of the fea
are alfo referred to, as well known and eftablifhed by, ftatute
4 Hen. IV. c. 20. which prohibits the landing elfewhere
under pain of confifcation ; and the ftatute i Eliz. c. u. re-
cites, that the franchife of lading and difcharging had been
frequently granted by the crown.
BUT though the king had a power of granting the fran-
chife of havens and ports, yet he had not the power of re-
fumption, or of narrowing and confining their limits when
once eftablifhed ; but any perfon had a right to load or dif-
charge his merchandize in any part of the haven ; whereby
the revenue of the cuftoms was much impaired and dimi-
i Inft.j. Dav.9.56.
* a Feud, t, 56. Crag. i. 15. 15. ' Madox. hift. exch. 530.
F.N. B. iij. " 4 Inft. 148,
nifiied .
Ch.7 (/PERSONS. 264
nifhed, by fraudulent landings in obfcure and private cor-
ners. This occafioned the ftatutes of i Eliz. c. n. and
13 & 14 Car. II. c. n. 14. which enable the crown by
commiflion to afcertain the limits of all ports, and to aflign
proper wharfa and quays in each port, for the exclufive
landing and loading of merchandize.
THE erelion of beacons, light-houfes, and fea-marks, is
alfo a branch of the royal prerogative : whereof the firft was
antiently u fed in order to alarm the country, in cafe of the [ 265 ]
approach of an enemy ; and all of them are fignally ufeful
in guiding and preferving veflels at fea by night as well as by
day. For this purpofe the king hath the exclufive power,
by commiflion under his great feal ', to caufe them to be
erected in fit and convenient places m , as well upon the lands
of the fubjecl: as upon the demefnes of the crown: which
power is ufually veiled by letters patent in the office of lord
high admiral". And by ftatute 8 Eliz. c. 13. the corpora-
tion of the trinity-houfe are empowered to fet up any beacons
or fea-marks wherever they mall think them neceflary ; and
if the owner of the land or any other perfon (hall deftroy
them, or mall take down any fteeple, tree, or other known
lea-mark, he mall forfeit i oo/. or in cafe of inability to pay
it, (hall be ipfofaEio outlawed.
To this branch of the prerogative may alfo be referred the
power veiled in his majefty, by ftatutes 12 Car. II. c. 4. and
29 Geo. II. c. 1 6. of prohibiting the exportation of arms or
ammunition out of this kingdom under fevere penalties : and
likewife the right which the king has, whenever he fees pro-
per, of confining his fubjels to flay within the realm, or of
recalling them when beyond the feas. By the common law ,
every man may go out of the realm for whatever caufe he
pleafeth, without obtaining the king's leave ; provided he is
under no injunction of {laying at home ; (which liberty was
1 3 Inft. 404. 4 Inft. 148. " SiJ. 158. 4 Inft. 149.
m Rot. Clauf. i Rii. H, m. 41. Pryn. F. N. B, 85.
on 4 luft. 136.
A a 3 exprcfsly
265 The RIGHTS - BOOK I.
exprefsly declared in king John's great charter, though left
out in that of Henry III.) ; but, becaufe that every man ought
of right to defend the king and his realm, therefore the king
at his pleafure may command him by his writ that he go not
beyond the feas, or out of the realm, without licence j and,
if he do the contrary, he fhall be punifhed for difobeying the
king's command. Some perfons there antiently were, that,
by reafon of their ftations, were under a perpetual prohibition
of going abroad without licence obtained ; among which were
reckoned all peers, on account of their being counsellors of
[ 266 ] tne crown > a M knights, who were bound to defend the king-
dom from invafions ; all ecclefiaftics, who were exprefsly
confined by the fourth chapter of the conftitutions of Claren-
don, on account of their attachment in the times of popery
to the fee of Rome : all archers and other artificers, left they
mould inftruft foreigners to rival us in their fereral trades and
manufactures. This was law in the times of Britton p , who
wrote in the reign of Edward I. : and fir Edward Coke q gives
us many inftances to this effect in the time of Edward III.
In the fucceeding reign the affair of travelling wore a very
different afpe& j an aft of parliament being made % forbid-
ding all perfons whatever to go abroad without licence j ex-
cept only the lords and other great men of the realm ; and
true and notable merchants ; and the king's foldiers. But this
a& was repealed by the ftatute 4 Jac. I. c. i. And at prefent
every body has, or at lead aflumes, the liberty of going
abroad when he pleafes. Yet undoubtedly if the king, by
writ of ne exeat regnum(io), under his great feal or privy feal,
thinks proper to prohibit him from fo doing ; or if the king
p c. 143. i 3 Inft. 175. ' 5 Ric. II. c. 3.
( 10) It is faid in lord Bacon's Ordinances, N 89, that " towards
" the latter end of the reign of king James the firfl this writ was
" thought proper to be granted, not only in refpeft of attempts
" prejudicial to the king and ftate, (in which cafe the lord chan-
" cellor granted it on application from any of the principal fecre-
" taries, without mowing caufe, or upon fuch information as hia
" lordfhip mould think of weight,) but alfo in the cafe of iriter-
" lopers in trade, great bankrupts, in whofe citates many fubjefts
" might
Ch. 7. O f PERSONS. 266
fends a writ to any man, when abroad, commanding his
return ( 1 1 ), and in either cafe the fubjecl: difobeys ; it is a
high contempt of the king's prerogative, for which the
offender's lands fhall be feifed till he return ; and then he is
liable to fine and imprifonment *.
III. ANOTHER capacity, in which the king is confidered
in domeftic affairs, is as the fountain of juftice and general
confervator of the peace of the kingdom. By the fountain of
i Hawk. P. C. a*.
" might be interefted, in duels, and in other cafes that did con-
" cern multitudes of the king's fubje&s."
But in the year 1734, lord chancellor Talbot declared that
** in his experience he never knew this writ of ne exeat regnum
" granted or taken out, without a bill firft filed. It is true, it
** was originally a ftate writ, but for fome time, though not very
" long, it has been made ufe of in aid of the fubjeds for the help-
" ing of them to juftice ; but it ought not to be made ufe of
" where the demand is entirely at law, for there the plaintiff has
'* bail, and he ought not to have double bail, both in law and
" equity." 3 P. Wins. 312.
The ufe and objeft of this writ of tie exeat regno in chancery at
prefent is exactly the fame as an arreft at law in the commence-
ment of an a&ion, viz. to prevent the party from withdrawing hia
perfon and property beyond the jurifdi&ion of the court, before a
judgment could be obtained and carried into execution ; fo where
there is a fuit in equity for a demand, for which the defendant
cannot be arrefted in an a&ion of law, upon an affidavit made that
there is reafon to apprehend that he will leave the kingdom before
the conclufion of the fuit, the chancellor by this writ will flop
him, and will commit him to prifon, unlefs he produces fufficient
fureties that he will abide the event of the fuit. See 2 Com. Dig.
312. The affidavit muft ftate fufficient proof of the intention of
the party to go abroad, and the plaintiff muft fwear that the de-
fendant is indebted to him a certain fum, which fum is marked
upon the writ, and for which fecurity muft be found. 3 Bro.
370. And if this rum is paid into court, the writ will be dif-
charged. i Vef. Jun. 96.
( 1 1 ) The exercife of this prerogative has been long difufed,
and it is probable that it will never be refumed. For the ancient
learning upon it, fee 3 Inft. c. 84.. agaiaft fugitives.
A a 4 juftice
266 The RIGHTS BOOK I.
juftice the law does not mean the author or original, but only
the diftributor. Juftice is not derived from the king, as from
Insfree gift ; but he is the fteward of the public, to difpenfe
it .to whom it is due l . He is not the fpring, but the refer-
voir ; from whence right and equity are conducted, by a
thoufand channels, to every individual. The original power
of judicature, by the fundamental principles of fociety, is
267 ] lodged in the fociety at large : but as it would be impracti-
cable to render complete juftice to every individual, by the
people in their collective capacity, therefore every nation has
committed that power to certain feleb magiftrates, who with
more eafe and expedition can hear and determine complaints;
and in England this authority has immemorially been exer-
cifed by the king or his fubftitutes. He therefore has alone
the right of erecting courts of judicature : for, though the
conftitution of the kingdom hath intrufted him with the
whole executive power of the laws, it is impoflible, as well as
improper, that he fhould perfonally carry into execution this
great and extenfive truft : it is confequently neceffary, that
courts fhould be erected, to affift him in executing this power;
and equally neceffary, that, if erected, they fhould be erected
by his authority. And hence it is, that all jurifdiclions of
courts are either mediately or immediately derived from the
crown, their proceedings run generally in the king's name,
they pafs under his feal, and are executed by his officers.
IT is probable, and almoft certain, that in very early times,
before our conftitution arrived at it's full perfection, our kings
in perfon often heard and determined caufes between party
and party (12). But at prefent, by the long and uniform ufage
of many ages, our kings have delegated their whole judicial
power to the judges of their feveral courts ; which are the
grand depofitaries of the fundamental laws of the kingdom,
and have gained a known and ftated jurifdidtion, regulated
by certain and eftablifhed rules, which the crown itfelf can-
1 Ad hoc out cm creatus eft et eleliui, ut jufttiaai facial unlverfis. Braft.
/. V tr. I. c. 9.
(12) Sec 3 vol. p. 41.
Ch./. <?f PERSONS. 267
not now alter but by al of parliament ". And, in order to
maintain both the dignity and independence of the judges in
the fuperior courts, it is enacted by the itatute 13 W. III. c. 2.
that their commiflions (hall be made (not, as formerly, durante
bene placito, but) qiiamdiu bene fe gefferint, and their falaries
afcertained and eftablifhed ; but that it may be lawful to re-
move them on the addrefs of both houfes of parliament. And
now, by the noble improvements of that law in the ftatute of
i Geo. III. c. 23. enacted at the earneft recommendation of
the king himfelf from the throne, the judges are continued in [ 268 3
their offices during their good behaviour, notwithftanding
any demife of the crown, (which was formerly held w imme-
diately to vacate their feats,) (13) and their full falaries are
abfolutely fecured to them during the continuance of their
commiflions ; his majefty having been pleafed to declare,
that " he looked upon the independence and uprightnefs of
" the judges, zcs eflential to the impartial adminiftration of
" juftice ; as one of the beft fecurities of the rights and li-
" berties of his fubjecls ; and as mod conducive to the
" honour of the crown x ."
IN criminal proceedings, or profecutions for offences, it
would ftill be a higher abfurdity, if the king perfonally fate
u a Hawk. P. C. 3. w Lord Raym. 747. x Com. Journ. 3 Mar. 1761.
(13) All their commiffions became vacant upon the demife of
the crown, till they were continued for fix months longer by
i Ann. ftat. i. c. 8. When Ids majefty was pleafed to make the
memorable declaration in the text, he introduced it by obferving ;
" Upon granting new commiflions to the judges, the prefent ftate
" of their offices fell naturally under confideration. In confe-
" quence of the late aft, pafied in the reign of my late glorious
" predecefibr William the third, for fettling the fucceffion to the
" crown in my family, their commiflions have been made during
" their good behaviour ; but notwithftanding that wife provifion,
" their offices have determined upon the demife of the crown, or
4< at the expiration of fix months afterwards, in every inftance of
" that nature which has happened."
ii in
268 The RIGHTS BOOK I.
in judgment ; becaufe in regard to thefe he appears in another
capacity, that of profecutor. All offences are either againft
the king's peace, or his crown and dignity : and are fo laid in
every indictment. For though in their confequences they
generally feem (except in the cafe of treafon, and a very
few others) to be rather offences againft the kingdom than
the king ; yet, as the public, which is an invifible body, has
delegated all it's power and rights, with regard to the execu-
tion of the laws, to one vifible magiftrate, all affronts to
that power, and breaches of thofe rights, are immediately
offences againft him, to whom they are fo delegated by the
public. He is therefore the proper perfon to profecute for
all public offences and breaches of the peace, being the per-
fon injured in the eye of the law. And this notion was car-
ried fo far in the old Gothic conftitution, (wherein the king
was bound by his coronation oath to conferve the peace,) that
in cafe of any forcible injury offered to the perfon of a fellow-
fubjed~T,, the offender was accufed of a kind of perjury, in
having violated the king's coronation oath ; dicebatur frcgijfe
juramentum regis juratum y . And hence alfo arifes another
269 ] branch of the prerogative, that of pardoning offences ; for it
is reafonable that he only who is injured (hould have the
power of forgiving. Of profecutions and pardons I {hall
treat more at large hereafter ; and only mention them here,
in this curfory manner, to fhew the conftitutional grounds
of this power of the crown, and how regularly connected
all the links are in this vaft chain of prerogative.
IN this diftin& and feparate exiftence of the judicial power
in a peculiar body of men, nominated indeed, but not re-
moveable at pleafure^by the crown, confifts one main pre-
fervative of the public liberty ; which cannot fubfift long in
any ftate, unlefs the adminiftration of common juftice be in
fome degree feparated both from the legiflative and alfo from
the executive power. Were it joined with the legiflative,
y Stiernh. de jure Goth. I. 3. c. 3. was condemned to be hanged for bri-
A notion fomewhat fimilar to this may bery, he was faid facramtntum domini
be found in the Mirror, c. I. 5. And regis fiegl/c. Rot. Part. Zj Ed-w. III.
fo aJJb, when the chief juflice Thorpe
J the
Ch. 7. of PERSONS. 269
the life, liberty, and property of the fubje& would be in the
hands of arbitrary judges, whofe decifions would be then
regulated only by their own opinions, and not by any funda-
mental principles of law ; which, though legiflators may de-
part from, yet judges are bound to obferve. Were it joined
with the executive, this union might foon be an over-
balance for the legiflative. For which reafon, by the ftatute
of 1 6 C. I. c. 10. which aboliftied the court of ftar-chamber,
effectual care is taken to remove all judicial power out of the
hands of the king's privy council ; who, as then was evident
from recent inftances, might foon be inclined to pronounce
that for law, which was mdft agreeable to the prince or his
officers. Nothing therefore is more to be avoided, in a free
conftitution, than uniting the provinces of a judge and
a minifter of ftate. And indeed, that the abfolute power,
claimed and exercifed in a neighbouring nation, is more tole-
rable than that of the eaftern empires, is in great meafure
owing to their having vefted the judicial power in their par-
liaments, a body feparate and diftinct from both the legifla-
tive and executive : and, if ever that nation recovers it's
former liberty, it will owe it to the efforts of thofe aflemblies.
In Turkey, where every thing is centered in the fultan or
his minifters, defpotic power is in it's meridian, and wears [ 27 3
a more dreadful afpeft.
A CONSEQUENCE of this prerogative is the legal ubiquity of
the king. His majefty, in the eye of the law, is always pre-
fent in all his courts, though he cannot perfonally diftribute
juftice *. His judges are the mirror by which the king's
image is reflected. It is the regal office, and not the royal
perfon, that is always prefent in the court, always ready to un-
dertake profecutions, or pronounce judgment, for the benefit
and protection of the fubjedt. And from this ubiquity it
follows, that the king can never be nonfuit a \ for a nonfuit
is the defertion of the fuit or action by the non-appearance
of the plaintiff in court (14). For the fame reafon alfp, in
z Fortefc. c. 8. a Inft. 186. * Co. Lite. 139.
(14) But the attorney -general may enter a non vult profequl,
which has the effect of a nonfuit. Co. Lttt- 139.
the
270 The RIGHTS BOOK I.
the forms of legal proceedings, the king is not faid to appear
by his attorney, as other men do j for in contemplation of law
he is always prefent in court b .
FROM the fame original, of the king's being the fountain of
juftice, we may alfo deduce the prerogative of ifluing pro-
clamations, which is vefted in the king alone. Thefe pro-
clamations have then a binding force, when (as fir Edward
Coke obferves*) they are grounded upon and enforce the
laws of the realm. For though the making of laws is en-
tirely the work of a diftinct part, the legiflative branch, ot
the fovereign power, yet the manner, time, and circumftances
of putting thofe laws in execution muft frequently be left to
the difcretion of the executive magiftrate. And therefore
his conftitutions or edi&s concerning thefe points, which we
call proclamations, are binding upon the fubjecl, where they
do not either contradict the old laws or tend to eftablim new
ones ; but only Enforce the execution of fuch laws as are al-
ready in being, in fuch manner as the king mall judge ne-
ceflary. Thus the eftabliflied law is, that the king may pro-
hibit any of his fubjecls from leaving the realm : a procla-
mation therefore forbidding this in general for three weeks,
271 ] by laying an embargo upon all fhipping in time of war d , will
be equally binding as an aft of parliament, becaufe founded
upon a prior law. But a proclamation to lay an embargo in
time of peace upon all veflels laden with wheat (though in
the time of a public fcarcity) being contrary to law, and par-
ticularly to ftatute 22 Car. II. c. 13. the advifers of fuch a pro-
clamation, and all perfons acting under it, found it neceflary
to be indemnified by a fpecial act of parliament, 7 Geo. HI.
c. 7. A proclamation for difarming papifts is alfo binding,
being only in execution of what the legiflature has firft or-
dained : but a proclamation for allowing arms to papifts, or
for difarming any proteftant fubjects, will not bind ; becaufe
the firft would be to aflume a difpenfing power, the latter
a legiflative one ; to the veiling of either of which in any
b Fluch. L. 81. rt 4 Mod. 177. 179.
5 3 luft, 162.
finglc
Ch. 7. ./PERSONS. 271
fingle perfon the laws of England are absolutely ftrangers.
Indeed by the ftatute 31 Hen. VIII. c. 8. it was enafted,
that the king's proclamations mould have the force of ats of
parliament ; a ftatute, which was calculated to introduce the
moft defpotic tyranny ; and which muft have proved fatal to
the liberties of this kingdom, had it not been luckily repealed
in the minority of his fucceflbr, about five years after c .
IV. THE king is likewife the fountain of honour, of office,
and of privilege: and this in a different enfe from that
wherein he is fty led the fountain of juftice; for here he is
really the parent of them. It is impoflible that government
can be maintained without a due fubordination of rank ; that
the people may know and diftinguim fuch as are fet over
them, in order to yield them their due refpecl: and obedi-
ence ; and alfo that the officers themfelves, being encouraged
by emulation and the hopes of fuperiority, may the better
difcharge their functions : and the law fuppofes that no one
can be fo good a judge of their feveral merits and fervices,
as the king himfelf who employs them. It has therefore
intruded him with the fole power of conferring dignities and
honours, in confidence that he will beftow them upon none
but fuch as deferve them. And therefore all degrees of
nobility, of knighthood, and other titles, are received by [ 772 ~]
immediate grant from the crown : either exprefied in writing,
by writs or letters patent, as in the creations of peers and
baronets ; or by corporeal inveftiture, as in the creation of a
fimple knight.
S& fo*G? wstl fcl.<q? jsf unmepo-? ^df v ' vjf WfT '. '
FROM the fame principle alfo arifes the prerogative of
creeling and difpofing of offices : fpr honours and offices are
in their nature convertible and fynonymous. All offices
under the crown carry in the eye of the law an honour along
with them; becaufe they imply a fuperiority of parts and
abilities, being fuppofed to be always filled with thofe that
are moft able to execute them. And, on the other hand, all
honours in their original had duties or offices annexed to
' ' '
'
Stat. j Edw. VI. c. I*.
them :
272 The RIGHTS BOOK I.
them : an earl, comes, was the confervator or governor of a
county ; and a knight, miles, was bound to attend the king
in his wars. For the fame reafon therefore that honours are
in the difpofal of the king, offices ought to be fo likewife ;
and as the king may create new titles, fo may he create new
offices : but with this reftri&ion, that he cannot create new
offices with new fees annexed to them, nor annex new fees
to old offices ; for this would be a tax upon the fubjedt,
which cannot be impofed but by al of parliament f . Where-
fore, in 13 Hen. IV., a new office being created by the king's
letters patent for meafuring cloths, with a new fee for the
fame, the letters patent were, on account of the new fee,
revoked and declared void in parliament.
UPON the fame, or a like reafon, the king has alfo the pre-
rogative of conferring privileges upon private perfons. Such
as granting place or precedence to any of his fubje&s (15),
as fhall feem good to his royal wifdom g : or fuch as con-
verting aliens, or perfons born out of the king's dominions,
into denizens ; whereby fome very confiderable privileges of
natural-born fubje&s are conferred upon them. Such alfo is
the prerogative of erecting corporations ; whereby a number
of private perfons are united and knit together, and enjoy
many liberties, powers, and immunities in their political capa-
t ~73 ] Clt y> which they were utterly incapable of in their natural.
f a Inft. 533. * 4 inft. 3 6i.
(15) The king by the common law could have created a duke,
earl, &c. and could have given him precedence before all others
of the fame rank, a prerogative not unfrcquently exercifed in an-
tient times; but it was reftrained by the 31 Hen. VIII. c. 10.
which fettles the place or precedence of all the nobility and great
officers of ftate. This prerogative of the crown was unreftrained in
Ireland ; but by the fourth article of the union with Ireland, this
ftatute, 31 Hen. VIII., is extended to all peers of Ireland, or at
leaft to all peers of the united kingdom created after the union, if
not to all the pre-exifting peers of Ireland. See p. 104. n. 15. ante.
12 Of
Ch. 7. of PERSONS. 273
Of aliens, denizens, natural-born, and naturalized fubje&s,
I (hall fpeak more largely in a fubfequent chapter ; as alfo of
corporations at the clofe of this book of our commentaries.
I now only mention them incidentally, in order to remark the
king's prerogative of making them ; which is grounded upon
this foundation, that the king, having the fole adminiftration of
the government in his hands, is the beft and the only judge,
in what capacities, with what privileges, and under what
distinctions, his people are the beft qualified to ferve, and to
act under him. A principle, which was carried fo far by
the imperial law, that it was determined to be the crime of
facrilege, even to doubt whether the prince had appointed
proper officers in the ftate h .
V. ANOTHER light, in which the laws of England
confidered the king with regard to domeftic concerns, is as
the arbiter of commerce. By commerce, I at prefent mean
domeftic commerce only. It would lead me into too large a
field, if I were to attempt to enter upon the nature of foreign
trade, it's privileges, regulations, and reftrictions j and would
be alfo quite befide the purpofe of thefe commentaries, which
are confined to the laws of England : whereas no municipal
laws can be fufficient to order and determine the very
extenfive and complicated affairs of traffic and merchandize ;
neither can they have a proper authority for this purpofe.
For, as thefe are tranfactions carried on between fubjects
of independent ftates, the municipal laws of one will not be
regarded by the other. For which reafon the affairs of
commerce are regulated by a law-of their own, called the law
merchant or lex men-atoria, which all nations agree in and
take notice of. And in particular it is held to be part of the
law of England, which decides the caufes of merchants by
the general rules which obtain in all commercial countries ;
and that often even in matters relating to domeftic trade, as
h Difputarc de princifali judiclo non oportet ; facrilegii tn'tm injlar eft, dubi-
tare an is dignusjit> quern elegtnt imferator. C. 9. 29. 3.
for
273 The RIGHTS BOOK I.
for inftance with regard to the drawing, the acceptance, and
transfer of inland bills of exchange'.
WITH us in England, the king's prerogative, fo far as it
relates to mere domeftic commerce, will fall principally
under the following articles :
FIRST, the eftablifhment of public marts, or places of
buying and felling ; fuch as markets and fairs, with the tolls
thereunto belonging. Thefe can only be fet up by virtue of
the king's grant, or by long and immemorial ufage and pre-
fcription, which prefuppofes fuch a grant k . The limitation
of thefe public reforts, to fuch time and fuch place as may be
mod convenient for the neighbourhood, forms a part of oeco-
nomics, or domeftic polity -, which, confidering the kingdom
as a large family, and the king as the mafter of it, he clearly
has a right to difpofe and order as he pleafes.
SECONDLY, the regulation of weights and meafures.
Thefe, for the advantage of the public, ought to be univer-
fally the fame throughout the kingdom ; being the general
criterions which reduce all things to the fame or an equiva-
lent value. But, as weight and meafure are things in their
nature arbitrary and uncertain, it is therefore expedient that
they be reduced to fome fixed rule or ftandard : which ilandard
it is impoffible to fix by any written law or oral proclama-
tion ; for no man can, by words only, give another an ade-
quate idea of a foot rule, or a pound weight. It is therefore
necefTary to have recourfe to fome vifible, palpable, material
ftandard ; by forming a comparison with which, all weights
and meafures may be reduced to one uniform fize : and the
prerogative of fixing this ftandard our antient law veiled in
the crown, as in Normandy it belonged to the Duke l . This
ftandard was originally kept at Winchefter : and we find in
the laws of king Edgar m , near a century before the conqueft,
' Co. Litt. 172. Ld. Raym. i8f. ' Gr. Coujlum. c. 16.
I54. m tap. 8.
k 3 Inft. 2JO.
an
Ch. 7. of PERSONS* 274
an injunction that the one meafure, which was kept at
"Winchefter, fhould be obfervecl throughout the realm. Moft
nations have regulated the ftandard of meafures of length by
comparifon with the parts of the human body ; as the palm, [ 275 ]
the hand, the fpan, the foot, the cubit, the ell, (ulaa, or arm,)
the pace and the fathom. But as thefe are of different
dimenfions in men of different proportions, our antient
hiftorians n inform us, that a new ftandard of longitudinal
meafure was afcertained by king Henry the firft ; who com-
manded that the ulna or antient ell, which anfwers to the
modern yard, mould be made of the exact length of his own
arm. And, one ftandard of meafures of length being gained,
all others are eafily derived from thence ; thofe of greater
length by multiplying, thofe of lefs by fubclividirig, that ori-
ginal ftandard. Thus, by the ftatute called compofitio ulna-
rum et perticarum, five yards and a half make a perch; and
the yard is fubdivided into three feet, and each foot into
twelve inches : which inches will be each of the length of
three grains of barley. Superficial meafures are derived by
fquaring thofe of length ; and meafures of capacity by cubing
them. The ftandard of weights was originally taken from
corns of wheat, whence the loweft denomination of weights
we have is ftill called a grain ; thirty two of which are di-
rected, by the ftatute called compofitio metifurarum, to com-
pofe a pennyweight, whereof twenty make an ounce, twelve
ounces a pound, and fo upwards. And upon thefe prin-
ciples the firft ftandards were made ; which, being ori-
ginally fo fixed by the crown, their fubfequent regulations
have been generally made by the king in parliament. Thus,
under king Richard I. in his parliament holden at Weftmin-
fter, A.D. 1197, it was ordained that there fhould be only
one weight and one meafure throughput the kingdom, and
that the cuftody of the aflize or ftandard of weights and mea-
fures fhould be committed to certain perfons in every city
and borough ; from whence the undent office of the king's
Will. Malmfb. in V it a Hrr. 7. Hoved. Matth, Paris.
. I. a/irfWilkins, 299.
VOL. I. . B b
275 T&f RIGHTS BOOK I.
aulnager feems to have been derived, whofe duty it was, for
a certain fee, to meafure all cloths made for fale, till the office
was abolifhed by the ftatute 1 1 & 12 W. III. c. 20. In king
John's time this ordinance of king Richard was frequently
[ 276 ] difpenfed with for money p : which occafioned a provision to
be made for enforcing it, in the great charters of king John
and his fon q . Thefe original ftandards were called pondus
regis r , and menfura domini regis * ; and are directed by a
variety of fubfequent ftatutes to be kept in the exchequer,
and all weights and meafures to be made conformable there-
to '. But, as fir Edward Coke obferves u , though this hath
fo often by authority of parliament been enacted, yet it
could never be effected ; fo forcible is cuftom with the
multitude (16).
THIRDLY, as money is the medium of commerce, it is the
king's prerogative, as the arbiter of domeftic commerce, to
P Hoved. A. L. nor. ' 14 Edw. III. ft. i. c. 1 2. 25 Eilw.
i 9 Hen. III. c. 25. III. ft. 5. c. 10. 16 Rich. II. c. 3.
r Places Edw, I. apudCov/eYs In- 8 Hen. VI. c. 5. n Hen. VI. c. 8.
. terp. tit.pondut reglt, II Hen. VII. 0.4. aa Car. II. c. 8.
' Flet. 2.12. u a Infl. 41.
( 1 6) The regulation of weights and meafures cannot with pro-
priety be referred to the king's prerogative ; for from magna charta
to the prefent time there are above twenty a&s of parliament to
fix and eftablifli the ttandard and uniformity of weights and mea-
fures. Two important cafes upon this fubjeft have lately been
determined by the court of king's bench ; one was, that although
there had been a cultom in a town to fell butter by eighteen ounces
to the pound, yet the jury of the court leet were not juftified in
feizing the better of a perfon who fold pounds lefs than that, but
more than fixteen ounces each, the itatutable weight. 3 T. R.
271. In the other it was determined, that no practice or ufage
could countervail the ftatutes 22 Car.II. c. 8. and 22 & 23 Car. II.
c. 12. which enal, that if any perfon (hall either fell or buy
grain or fait by any other meafure than the Winchefter bumel, he
mall forfeit forty (hillings, and alfo the value of the grain or fait
fo fold or bought ; one half to the poor, the other to the informer.
The King and Major, 4 T. R. 750. 5 T. R. 353.
give
Ch. 7. of PERSONS. 276
give it authority, or make it current. Money is an univerfal
medium, or common flandard, by comparifon with which
the value of all merchandize may be afcertained : or it is a
fign, which reprefents the refpedtive values of all commodi-
ties. Metals are well calculated for this lign, becaufe they
are durable, and are capable of many fubdivifions : and a pre-
cious metal is ftill better calculated for this purpofe, becaufe
it is the moft portable. A metal is alfo the mod proper for a
common meafure, becaufe it can eafily be reduced to the fame
ftandard in all nations : and every particular nation fixes on
it it's own impreffion, that the weight and ftandard (wherein
confifts the intrinfic value) may both be known by infpeUon
only.
As the quantity of precious metals increafes, that is, the
more of them there is extracted from the mine, this univerfal
medium or common fign will fink in value, and grow lefs
precious. Above a thoufand millions of bullion are calculated
to have been imported into Europe from America within lefs
than three centuries : and the quantity is daily increafing.
The confequence is, that more money muft be given now
for the fame commodity than was given an hundred years r 377 n
ago. And, if any accident were to diminim the quantity of
gold and filver, their value would proportionably rife. A
horfe that was formerly worth ten pounds, is now perhaps
worth twenty : and, by any failure of current fpecie, the
price may be reduced to what it was. Yet is the horfe in
reality neither dearer nor cheaper at one time than another :
for, if the metal which conftitutes the coin was formerly
twice as fcarce as at prefent, the commodity was then as,
dear at half the price as now it is at the whole (17).
(17) In confidering the prices of articles in antient times, re-
gard muft always be had to the weight of the milling, or the
quantity of filver which it contained at different periods. From
the conqueft till the 2Oth year of Edw. III. a pound ilerling was
actually a pound troy weight of filver, which was divided into
B b 2 twenty
277 The RIGHTS BOOK I.
THE coining of money is in all flates the a& of the fove-
reign power ; for the reafon juft mentioned, that it's value
twenty {hillings ; fo if ten pounds at that time were the price of a
horfe, the fame quantity of filver was paid for it as is now given,
if it's price is thirty pounds.
This therefore is one great caufe of the apparent difference in
the prices of commodities in antient and modern times. About
the year 1347, Edward III. coined twenty -two (hillings out of a
pound ; and five years afterwards he coined twenty-five {hillings
out of the fame quantity. Henry V. in the beginning of his
reign divided the pound into thirty millings, and then of confe-
quence the milling was double the weight of a milling at pre-
fent. Henry VII. increafed the number to forty, which was
the ftandard number till the beginning of the reign of Elizabeth.
She then coined a pound fterling of filver into fixty-two millings,
which divifion has ever fince remained without alteration ; fo every
ounce of coined filver fince that time has been equal to five mil-
lings and two-pence. (See MONEY in the Index to Hume'j Hift.)
Dr. Adam Smith, at the end of his firft volume, has given tables
fpecifying the average prices of wheat for five hundred and fifty
years back, and has reduced for each year the money of that time
into the money of the prefent day. But in his calculation he has
called the pound fince Elizabeth's time fixty millings. Taking it
at that rate, we may eafily find the equivalent in modern money of
any fum in antient time, if we know the number of millings which
weighed a pound, by this fimple rule : As the number of millings
in a pound at that time is to fixty, fo is any fum at that time to it's
equivalent at prefent ; as for inftance, in the time of Henry V. as
thirty (hillings are to fixty millings now, fo ten pounds then were
equal to twenty pounds of prefent money. The increafe in the
quantity of the precious metals does not neceflarily increafe the
price of articles of commerce : for if the quantities of thefe ar-
ticles are augmented in the fame proportion as the quantity of
money, it is clear there will be the fame ufe, demand, or price for
money as before, and no effect will be produced in the price of
commoditie?.
If gold and filver could have been kept in the country, the im-
menfe increafe of paper currency, or fubftitution of paper for coin,
would have diminished it's value, and have increafed the prices of
labour
Ch. 7. of PERSONS. 277
may be known on infpection. And with refpeft to coinage
in general, there are three things to be confidered therein ;
the materials, the impreflion, and the denomination.
WITH regard to the materials, fir Edward Coke lays it
clown w , that the money of England muft either be of gold
or iilver: and none other was ever iffued by the roy*l au-
thority till 1672, when copper farthings and halfpence were
coined by king Charles the fecond, and ordered by procla-
mation to be current in all payments, under the value of fix-
pence, and not otherwise. But this copper coin is not upon
the fame footing with the other in many refpects, particu-
larly with regard to the offence of counterfeiting it. And, as
to the filver coin, it is enacted by ftatute 14 Geo. III. c. 42.
that no tender of payment in filver money, exceeding
twenty-five pounds at one time, (hall be a fufficient tender in
law, for more than it's value by weight, at the rate of jj. id.
an ounce (18).
As to the impreflion, the ftamping thereof is the unquef-
tionable prerogative of the crown : for, though divejrs bi-
alnft.577.
labour and commodities far beyond the effect that has been pro-
duced by the difcovery of the mines in America. The effect
they have produced is general, and extended to the whole world ;
but the increafe of our paper has only a tendency to leffen the
value of money at home, which never can take place to any great
degree, as it will naturally feek a better market, or be carried
where more will be given for it ; and by the fubftitution of a
cheaper medium of commerce, the difference in value is added to
the capital or to the real ftrength of the nation. Gold and filver
form an infignificant part of the real wealth of a commercial coun-
try. The whole quantity of fpecie in the country has been eftimated
at about twenty millions only, much lef* than what is raifed in one
year for the fupport of government.
( 18) This was a claufe in a temporary aft, which was continued
till 1783, fince which time I do not find that it has been revived.
13 b 3 (hops
278 The RIGHTS BOOK!.
will be neceflary. There is at prefent no fuch legitimated
money ; Portugal coin being only current by private con-
L */9 J fent, fo that any one who pleafes may refufe to take it in
payment. The king may alib at any time decry, or cry
down, any coin of the kingdom, and make it no longer
current (22).
V. THE king is, laftly, confidered by the laws of England
as the head and fupreme governor of the national church.
To enter into the reafons upon which this prerogative is
founded, is matter rather of divinity than of law. I fhall there-
fore only obferve that by ftatute 26 Hen. VIII. c. i. (recit-
ing that the king's majefty juftly and rightfully is and ought
to be the fupreme head of the church of England j and fo
had been recognifed by the clergy of this kingdom in their
convocation) it is enacted, that the king (hall be reputed the
only fupreme head in earth of the church of England, and
fhall have annexed to the imperial crown of this realm, as
well the title and ftyle thereof, as all jurifdilions, authori-
ties, and commodities, to the faid dignity of fupreme head
of the church appertaining. And another ftatute to the fame
purport was made, I Eliz. c. I. (23)
i Hal. P. C. 197.
(22) AH officers of the revenue are required to cut every piece
of gold coin tendered to them, if it is not of the current weight
according to the king's proclamation 14 Geo. III. c. 70. And by
13 Geo. III. c. 71. any perfon may cut counterfeit gold money,
or what has been unlawfully diminHhed.
(23) As queen Mary by I & 2 Ph. & M. c. 8. had repealed all
the ftatutes made in the time of her father derogatory to the fee of
Rome, and had fully reinftated the pope in all his former power
and j urifdiftion in this country : queen Elizabeth, to mew her at-
tachment to the proteftant caufe, by the- firit parliamentary aft of
her reign repealed this ftatute of queen Mary, and revived all the
ftatutes relating to the church pafled in the time of Henry VIII.
This proves how little at that time depended upon the authority of
jMiliament,
Ch. 7. of PERSONS. 279
IN virtue of this authority the king convenes, prorogues,
reftrains, regulates, and diflblves all ecclefiaftical fynods or
convocations. This was an inherent prerogative of the
crown, long before the time of Henry VIII. as appears by
the ftatute 8 Hen. VI. c. i. and the many authors, both
lawyers and hiftorians, vouched by fir Edward Coke a . So
that the ftatute 25 Hen. VIII. c. 19. which reftrains the
convocation from making or putting in execution any canons
repugnant to the king's prerogative, or the laws, cuftoms,
and ftatutes of the realm, was merely declaratory of the old
common law e : that part of it only being new, which makes
the king's royal aflent actually neceflary to the validity of
every canon. The convocation or ecclefiaftical fynod, in
England, differs confiderably in it's conftitution from the
fynods of other chriftian kingdoms : thofe confiding wholly
of bifhops ; whereas with us the convocation is the miniature
of a parliament, wherein the archbifhop prefides with regal
ftate ; the upper houfe of bifhops reprefents the houfe of
lords ; and the lower houfe, compofed of reprefentatives of [ 280
the feveral diocefes at large, and of each particular chapter
therein, refembles the houfe of commons with it's knights of
the fhire and burgefles f . This conftitution is faid to be
owing to the policy of Edward I. : who thereby at one and
the fame time let in the inferior clergy to the privileges of
forming ecclefiaftical canons, (which before they had not,)
and alfo introduced a method of taxing ecclefiaftical bene-
fices, by confent of convocations 8 (24).
d 4 Inll. 343, 313. It is compcfed of the bifliops and fupt-r-
e I* Rep. 72. intendants; and alfo of deputies, one of
f In the diet of Sweden, where the which is cholen by every ten psriflies or
ecclefiaftics form one of the branches of rural deanery. Mod. On. Hift. xxxiii.
the legiflature, the chamber of the clergy 1 8.
refembles the convocation of England. * Gilb. Hift.of Exch. 0.4.
parliament, which could accede to fuch immenfe revolutions in the
courfe of four or five years.
(24) From the learned Commentator's text, the ftudent would
perhaps be apt to fuppofe that there is only one convocation at a
time.
280 The RIGHTS BOOK I.
FROM this prerogative alfo, of being the head of the
church, arifes the king's right of nomination to vacant
bifhopricks, and certain other ecclefiaflical preferments ;
which will more properly be confidered when we come
to treat of the clergy. I fliall only here obferve, that this
is now done in confequence of the ftatute 25 Hen. VIII.
c. 20.
time. But the king, before the meeting of every new parliament,
direfts his writ to each archbiftiop, to fummon a convocation in
his peculiar province.
Godolphin fays, that the convocation of the province of York
conftantly correfponds, debates, and concludes the fame matters
with the provincial fynod of Canterbury. God. 99. But they are
certainly diftinft and independent of each other ; and when they
ufed to tax the clergy, the different convocations fometimes granted
different fubfidies. In the 22 Hen. VIII. the convocation of Can-
terbury had granted the king one hundred thoufand pounds ; in
confideration of which an aft of parliament was paffed, granting a
free pardon to the clergy for all fpiritual offences, but with a pro-
vifo that it mould not extend to the province of York, unlefs it's
convocation would grant a fubfidy in proportion, or unlefs it's
clergy would bind themfelves individually to contribute as bounti-
fully. This ftatute is recited 'at large in Gib. Cod. 77.
All deans and archdeacons are members of the convocation of
their province ; each chapter fends one proftor or reprefentative,
and the parochial clergy in each diocefe in Canterbury two proc-
tors ; but, on account of the fmall number of diocefes in the pro-
vince of York, each archdeaconry clefts two pro&ors. In York
the convocation confifts only of one houfe ; but in Canterbury
there are two houfes, of which the twenty-two bifhops form the
upper houfe ; and before the reformation, abbots, priors, and other
mitred prelates, fat with the bimops. The lower houfe of convo-
cation in the province of Canterbury confifts of twenty-two deans,
fifty -three archdeacons, twenty-four proftors for the chapters, and
forty -four proftors for the parochial clergy. By 8 Hen. VI. c. i .
the clergy in their attendance upon the convocation have the fame
privilege in freedom from arreft as the members of the houfe of
commons in their attendance upon parliament. Burn. Con. i Bat.
Abr.6\^.
4 As
Ch. 7. of PERSONS. 280
As the head of the church, the king is likewife the dernier
refort in all ecclefiaftical caufes ; an appeal lying ultimately
to him in chancery from the fentence of every ecclefiaftical
judge ; which right was reftored to the crown by ftatute
25 Hen. VIII. c. 19. as will more fully be (hewn here-
after (25).
( 25 ) By that ftatute it is declared, that for the future no appeals
from the ecclefiaftical courts of this realm mould be made to the
pope, but that an appeal from the archbifhop's courts mould lie to
the king in chancery ; upon which the king, as in appeals from the
admiral's court, mould by a' commiffion appoint certain judges or
delegates finally to determine fuch appeals. See 3 vol. p. 66.
28 1 The RIGHTS BOOK I.
CHAPTER THE EIGHTH.
OF THE KING'S REVENUE.
TTAVING, in the preceding chapter, confidered at large
thofe branches of the king's prerogative, which con-
tribute to his royal dignity, and conftitute the executive
power of the government, we proceed now to examine the
king's fifcal prerogatives, or fuch as regard \\\s revenue; which
the Britifh conftitution hath vefted' in the royal perfon, in
order to fupport his dignity and maintain his power : being
a portion which each fubjecl: contributes of his property, in
order to fecure the remainder.
THIS revenue is either ordinary or extraordinary. The
king's ordinary revenue is fuch, as has either fubfifted time
out of mind in tho crown ; or elfe has been granted by par-
liament, by way of purchafe or exchange for fuch of the king's
inherent hereditary revenues as were found inconvenient to
the fubjeft.
WHEN I fay that it has fubfifted time out of mind in the
crown, I do not mean that the king is at prefent in the actual
pofieflion of the whole of this revenue. Much (nay the
greateft part) of it is at this day in the hands of fubjects, to
whom it has been granted out from time to time by the
kings of England, which has rendered the crown in fome
mcafure dependent on the people for it's ordinary fupport
and fubfiftence. So that I muft be obliged to recount, as
part of the royal revenue, what lords of manors and other
fubje&s frequently look upon to be their own abfolute in-
herent rights ; becaufe they are and have been vefted in them
and their anceftors for ages, though in reality originally de-
rived from the grants of our antient princes.
I. THE
Ch. 8. of PERSONS. 282
I. THE firft of the king's ordinary revenues, which I fhall
take notice of, is of an ecclefiaftical kind ; (as are alfo the
three fucceeding ones ;) viz. the cuftody of the temporalities of
bifhops : by which are meant all the lay revenues, lands, and
tenements (in which is included his barony) which belong to
an archbifhop's or bifhop's fee. And thefe upon the vacancy
of the bifhoprick are immediately the right of the king, as a
confequence of his prerogative in church matters ; whereby
he is confiderad as the founder of all archbifhopricks and
bifhopricks, to whom during the vacancy they revert. And
for the fame reafon, before the diffolution of abbeys, the king
had the cuftody of the temporalities of all fuch abbeys and
priories as were of royal foundation (but not of thofe founded
by fubjecls) on the death of the abbot or prior a . Another
reafon may alfo be given, why the policy of the law hath
veiled this cuftody in the king ; becaufe, as the fuccefibr is
not known, the lands and pofieffions of the fee would be liable
to fpoil and devaftation, if no one had a property therein.
Therefore the law has given the king, not the temporalities
themfelves, but the cujlody of the temporalities, till fuch time
as a fucceflbr is appointed, with power of taking to himfelf
all the intermediate profits, without any account of the fuc-
ceflbr ; and with the right of prefenting (which the crown
very frequently exercifes) to fuch benefices and other prefer-
ments as fall within the time of vacation b . This revenue is
of fo high a nature, that it could not be granted out to a
fubjer, before, or even after, it accrued : but now by the
ftatute 15 Edw. III. ft. 4. c. 4, 5. the king may, after the
vacancy, leafe the temporalities to the dean and chapter ;
faving to himfelf all advowfons, efcheats, and the like. Our
antient kings, and particularly William Rufus, were not
only remarkable for keeping the bifhopricks a long time va-
cant, for the fake of enjoying the temporalities, but alfo com-
mitted horrible wafte on the woods and other parts of the
eftate ; and, to crown all, would never, when the fee was
filled up, reftore to the bifhop his temporalities again, un-
.
a Inft. 15. " Sut. 17 Edw. II. c. 14. F.N.B. 3*.
lefs
28^ The RIGHTS BOOK I.
lefs he purchafed them at an exorbitant price. To remedy
which, king Henry the firft c granted a charter at the begin-
ning of his reign, promifing neither to fell, nor let to farm,
nor take any thing from the domains of the church, till the
fuccefibr was inftalled (i). And it was made one of the
articles of the great charjpr d , that no wafte mould be com-
mited in the temporalities of bifhopricks, neither mould the
cuftody of them be fold. The fame is ordained by the ftatute
of Weftminfter the 'firft e ; and the ftatute 14 Edw. III. ft. 4.
c. 4. (which permits, as we have feen, a leafe to the dean
and chapter) is ftill more explicit in prohibiting the other
exactions. It was alfo a frequent abufe, that the king would,
for trifling or no caufes, feife the temporalities of bifhops,
even during their lives, into his own hands : but this is
guarded againft by ftatute i Edw. III. ft. 1. c. 2.
THIS revenue of the king, which was formerly very con-
fiderable, is now by a cuftomary indulgence almoft reduced
to nothing : for at prefent, as foon as the new bifhop is con-
fecrated and confirmed, he ufually receives the reftitution
of his temporalities quite entire, and untouched, from the
king ; and at the fame time does homage to his fovereign :
and then, and not fooner, he has a fee-fimple in his bifhop-
rick, and may maintain an action for the profits f .
II. THE king is entitled to a corody, as the law calls it,
out of every bifhoprick, that is, to fend one of his chaplains
.to be maintained by the bifhop, or to have a penfion allowed
him till the bifhop promotes him to a benefice g . This is alfo
in the nature of an acknowledgment to the king, as founder
of the fee, fince he had formerly the fame corody or penfion
from every abbey or priory of royal foundation. It is, I ap-
c Mat. Paris. f Co. Litt. 67. 341.
d 9 Hen. III. c. 5. F.N. B. 230.
e 3 Edw. I. c.ai.
( I ) But queen Elizabeth kept the fee of Ely vacant 1 9 years,
in order to retain the revenue. Strype, 4 vol. 351.
prehend,
Ch. 8. of PERSONS. 283
prehend, now fallen into total difufe : though fir Matthew
Hale fays h , that it is due of common right, and that no
prefcription will difcharge it.
III. THE king alfo (as was formerly obferved ') is entitled
to all the tithes arifing in extrap.arochial places k : though
perhaps it may be doubted how far this article, as well as [ 284 ]
the laft, can be properly reckoned a part of the king's own
royal revenue ; fince a corody fupports only his chaplains,
and thefe extraparochial tithes are held under an implied
truft, that the king will diflribute them for the good of the
clergy in general.
IV. THE next branch confifts in the firft-fruits, and tenths,
of all fpiritual preferments in the kingdom ; both of which I
(hall confider together.
THESE were originally a part of the papal ufurpations over
the clergy of this kingdom ; firft introduced by Pandulph
the pope's legate, during the reigns of king John and Henry
the third, in the fee of Norwich ; and afterwards attempted
to be made univerfal by the popes Clement V. and John XXII.
about the beginning of the fourteenth century. The firft-
fruits, primitiae or annates t were the firft year's whole profits
of the fpiritual preferment, according to a rate or valor
made under the direction of pope Innocent IV. by Walter
bifhop of Norwich in 38 Hen. III., and afterwards advanced
in value by commiflion from pope Nicholas III., A. D. 1292,
20 Edw. I. ! : which valuation of pope Nicholas is ftill
preferved in the exchequer m . The tenths, or decimae, were
the tenth part of the annual profit of each living by the fame
valuation, which was alfo claimed by the holy fee, under
no better pretence than a ftrange mifapplication of that pre-
cept of the Levitical law, which directs n , that the Levites
fliould offer the tenth part of their tithes as a heave-offering
h Notes on F. N. B. above cited. > F. N. B. 1 76-
1 Page 1 13. m 3 Inft.154-
k a Inft. 647. " Numb, xviii. 16.
tO
284 The RIGHTS BOOK I.
" to the Lord, and give it to Aaron the high prieft." But
this claim of the pope met with a vigorous re(i(lance from
the Englifh parliament ; and a variety of als were parted to
prevent and reftrain it, particularly the ftatute 6 Hen. IV.
c. r. which calls it a horrible mifchief, and damnable
cuitom. But the popifii clergy, blindly devoted to the
will of a foreign mafter, ftill kept it on foot ; fometimes
more fecretly, fometimes more openly and avowedly : fo
that in the reign of Henry VIII., it was computed, that
285 ] in the compafs of fifty years 800,000 ducats had been fent
to Rome for firit-fruits only. And, as the clergy expreffed
this willingnefs to contribute fo much of their income to
the head of the church, it was thought proper (when in
the fame reign the papal power was abolifhed, and the king
was declared the head of the church of England) to annex
this revenue to the crown ; which was done by ftatute
26 Hen. VIII. c. 3. (confirmed by ftatute i Eliz. c. 4.) and
a, new valor beneficiorum was then made, by which the clergy
are at prefent rated (2).
BY thefe laft mentioned ftatutes all vicarages under ten
pounds a year, and all rectories under ten marks, are dif-
charged from the payment of firft- fruits : and if, in fuch
livings as continue chargeable with this payment, the
incumbent lives but half a year, he (hall pay only one
quarter of his firft-fruits ; if but one whole year, then half
of them j if a year and a half, three quarters ; and if two
(2) When the firft-fruit3 and tenths were transferred to the
crown of England by 26 Hen. VIII. c. 3. at the fame time it
was enafted, that commiffioners mould be appointed in every dio-
cefe, who mould certify the value of every eccleliaftical benefice
and preferment in the refpe&ive diocefes ; and according to this
valuation, the firft-fruits and tenths were to be collected and paid
in future. This valor beneficiorum is what is commonly called the
King's Books ; a tranfcript of which is given in Efton's Thefau-
rus, and Bacon's Liber Regi?.
3 years,
Ch. 8. of PERSONS. 285
years, then the whole; and not otherwife (3). Likewife
by the ftatute 27 Hen. VIII. c. 8. no tenths are to be paid
for the firfl year, for then the firfl-fruits are due : and by
other ftatutes of queen Anne, in the fifth and fixth years
of her riegn, if a benefice be under fifty pounds per annum
clear yearly value, it (hall be difcharged of the payment of
firft-fruits and tenths (4).
THUS the richer clergy, being, by the criminal bigotry
of their popifh predeceflbrs, fubjedled at firft to a foreign
exaction, were afterwards, when that yoke was lhaken
off, liable to a like mifapplication of their revenues,
through the rapacious difpofition of the then reigning
monarch : till at length the piety of queen Anne reflored to
the church what had been thus indirelly taken from it. [ 286 ]
This fhe did, not by remitting the tenths and firfl-fruits
entirely ; but, in a fpirit of the trueft equity, by applying
thefe fuperfluities of the larger benefices to make up the de-
ficiencies of the fmaller. And to this end (he granted her
royal charter, which was confirmed by the ftatute 2 Ann.
c. 11. whereby all the revenue of firfl-fruits and tenths is
vefled in truflees for ever, to form a perpetual fund for the
augmentation of poor livings. This is ufually called queen
(3) The archbifhops and bifhops have four years allowed for
the payment, and {hall pay one quarter every year, if they live fo
long upon the bimoprick ; but other dignitaries in the church pay
theirs in the fame manner as re&ors and vicars.
(4) After queen Anne had appropriated the revenue arifmg
from the payment of firfl-fruits and tenths to the augmentation of
fmall livings, it was confidered a proper extenfion of this principle
to exempt the fmaller livings from the incumbrance of thofe de-
mands ; and, for that end, the bifhops of every diocefe were di-
rected to inquire and certify into the exchequer what livings did
not exceed 5o/. a year according to the improved value at that
time ; and it was further provided, that fuch livings mould be
difcharged from thofe dues in future.
VOL. I. C c Anne's
286 The RIGHTS BOOK I.
Anne's bounty ; which has been flill farther regulated by
fubfequent ftatutes (5).
5Ann. c. 24. 6 Ann. c. 27. i Geo. I. ft. 2. c. 10. 3 Geo. I. c. 10.
(5) Thefe truftees were erefted into a corporation, and have
authority to make rules and orders for the diftribution of this fund.
The principal rules they have eftablifhed are, that the fum to be
allowed for each augmentation mall be 2oo/. to be laid out in
land which mall be annexed for ever to the living ; and they mail
make this donation, firft, to all livings not exceeding io/. a year ;
then to all livings not above 2o7. ; and fo in order, whilft any re-
main under jo/, a year. But when any private benefaftor will
advance zoo/, the tru flees will give another 2oo/. for the ad-
vancement of any living not above 457. a year, though it mould
not belong to that clafs of livings which they are then augment-
ing. 2 Burn. EC. L. 260.
Though this was a fplendid inftance of royal munificence, yet
it's operation is flow and inconliderable ; for the number of livings
certified to be under 5O/. a year was no lefs than 5597, of which
2538 did not exceed 2O/. a year each, and 1933 between 3o/. and
50/. a year, and the reft between 2o7. and 307. ; fo that there were
5597 benefices in this country which had lefs than 237. a year
each upon an average. Dr. Burn calculates, that from the fund
alone it will require 339 years from the year 1714, when it com-
menced, before all thofe livings can be raifed to 5O/. And if
private benefactors mould contribute half as much as the fund,
(which is very improbable,) it will require 226 years. But even
taking this fuppofition to have been true ever fince the eftablifh-
ment, it will follow, that the wretched pittance from each of 5597
livings, both from the royal bounty and private benefaftion, can-
not, upon an average, have yet been augmented 9/. a year.
2 Burn. E. L. 268. Yet it muft be obferved, that in this calcu-
lation, he has not taken into confideration the great increafe in
the rentals of all eftates fince the valuation of thefe fmall livings
was made in the time of queen Anne. Dr. Burn computes the
clear amount of the bounty to make 55 augmentations yearly,
that is, at n,ooo7. a year. ; but Sir John Sinclair, Hift. Rev.
3 part, 198. fays, that " this branch of the revenue amounted to
*' about 14,0007. per annum; and on the ift of January 1735,
" the governors of that charity polleffed, befidej from favings
7 " and
Ch. 8. ^PERSONS. 286
V. THE next branch of the king's ordinary rerenue
(which, as well as the fubfequent branches, is of a lay or
*' and private benefactions, the fum of i $2,500!. of old South
" Sea annuities, and 48577. of cam in the hands of their trea-
* furer ; the ftate of that fund has of late years been carefully
" concealed ; but it probably yields, at prefent, from 40 to 50
*' thoufand pounds per annum." This conjecture muft certainly be
very wide of the truth of the cafe ; for the fource of this
fund is fixed and permanent, except the variation depending
upon the contingency of vacancies, which will be more or fewer
in different years. And what object can the commiffioners have
in the accumulation of this fund ? For that accumulation can
only arife by depriving the poor clergy of the afilftance which was
intended them, and to enrich the fucceffor at the expence of
the wretched incumbent of the prefent day. The condition of
the poor clergy in this country certainly requires fome further
national provifion. Neither learning, religion, nor good morals,
can fecure poverty from contempt in the minds of the vulgar.
The immenfe inequality in the revenue of the minifters of the
gofpel, not always refulting from piety and merit, naturally
excites difcontent and prejudices againil the prefent eftablifh-
ment of the church. If the whole of the profits and emolu-
ments of every benefice for one year were appropriated to this
purpofe, an effect would be produced in 20 or 30 years, which
will require 300 by the prefent plan. This was what was originally
underftood by the firft-fruits, and what actually, within the lafl
300 years, was paid and carried out of the kingdom to fupport
the fuperftition and folly of popery. If upon any promotion to a
benefice it was provided that there mould be no vacancy or cef-
fion of former preferment till the end of the year, who could
complain ? The perfon promoted would be deprived of no right
or property which he had previoufly enjoyed : and even if there
were any minds fo fanguine as to confider themfelves certain of
fuccefs, it would be but a temporary difappointment of their hope* ;
and taxes are never paid with fo much cheerfulnefs and alacrity
as upon the acceflion of good fortune. It would certainly foon
yield a fupply which would communicate both comfort and re-
fpectability to the indigent clergy.
A great effect would be produced, if one half, or any confi-
derable proportion, were fo applied. I am happy to find that a
C c 2 further
286 The RIGHTS BOOK I.
temporal nature) confifts in the rents and profits of the de-
mefne lands of the crown. Thefe demefne lands, terrae
dominicales regis, being either the {hare referred to the crown
at the original diftribution of landed property, or fuch as
came to it afterwards by forfeitures or other means, were
antiently very large and extenfive ; comprifing divers ma-
nors, honours, and lordihips ; the tenants of which had very
peculiar privileges, as will be (hewn in the fecond book of
thefe Commentaries, when we fpeak of the tenure in an-
tient demefne. At prefent they are contracted within a
very narrow compafs, having been almoft entirely granted
away to private fubjefts. This has occafioned the parlia-
ment frequently to interpofe ; and, particularly, after king
William III. had greatly impoverimed the crown, an act
patied p , whereby all future grants or leafes from the crown
for any longer term than thirty-one years or three lives are
declared to be void ; except with regard to houfes, which
may be granted for fifty years. And no reverfionary leafe
can be made, fo as to exceed, together with the eftate in
being, the fame term of three lives or thirty-one years :
that is, where there is a fubfifting leafe, of which there
are twenty years ilill to come, the king cannot grant a fu-
ture intereft, to commence after the expiration of the for-
mer, for any longer term than eleven years. The tenant
287 } muft alfo be made liable to be puniftied for committing
wafle \ and the ufual rent muft be referved, or, where
p I Ann. ft. i. c. 7.
further provifion for the inferior clergy has been lately recom-
mended by fome of the leading characters in both houfes of par-
liament. See particularly the fpeech of the right honourable fir
William Scott, delivered in the houfe of commons on April yth
1802, upon a bill relative to the non-refidence of the clergy.
By the 46 Geo. III. c. 133. a very noble donation of 6ooo/.
a year was granted for the augmentation of fniall livings not ex-
ceeding i$ol. a year. For by that ftatute it is enafted that all fuch
livings may be discharged from the payment of the land-tax, with-
out any confideration for it ; provided the whole annual amount
fliall not exceed 6ooo/.
4 there
Ch. 8. of PERSONS. 287
there has ufually been no rent, one third of the clear yearly
value q . The misfortune is, that this aft was made too late,
after almoft every valuable poffeflion of the crown had been
granted away for ever, or elfe upon very long leafes ; but
may be of fome benefit to pofterity, when thofe leafes come
to expire (6).
VI. HITHER might have been referred the advantages
which ufed to arife to the king from the profits of his
military tenures, to which mod lands in the kingdom were
fubjecl;, till the ftatute 12 Car. II. c. 24. which in great
meafure abolifhed them all : the explication of the nature of
which tenures muft be poftponed to the fecond book of thefe
Commentaries. Hither alfo might have been referred the
profitable prerogative of purveyance and pre-emption : which
was a right enjoyed by the crown of buying up provifions
and other neceffaries, by the intervention of the king's
purveyors, for the ufe of his royal houfehold, at an appraifed
valuation, in preference to all others, and even without con-
fent of the owner : and alfo of forcibly impreffing the car-
riages and horfes of the fubjet, to do the king's bufinefs on
the public roads, in the conveyance of timber, baggage, and
the like, however inconvenient to the proprietor, upon pay-
ing him a fettled price. A prerogative which prevailed
pretty generally throughout Europe, during the fcarcity of
gold and filver, and the high valuation of money confequential
thereupon. In thofe early times the king's houfehold (as
well as thofe of inferior lords) were fupported by fpecific
renders of corn, and other victuals, from the tenants of the
refpe&ive demefnes : and there was alfo a continual market
J In like manner, by the civil law, alienated, but only let to farm. Cot/.
the inheritance or fundl falrimoniales /. n./. 61.
of the imperial crown could not be
(6) By the 26 Geo. III. c.8y. amended by 36Geo. III. 0.50.
commiffioners were appointed to inquire into the ftate and condi-
tion of the woods, forefts, and land revenues belonging to the
crown, and to fell fee-farm and other unimproveable rents.
Cc 3 kept
287 The RIGHTS BOOK L
kept at the palace gate to furnim viands for the royal ufe r .
And this anfwered all purpofes, in thofe ages of fimplicity,
fo long as the king's court continued in any certain place.
But when it removed from one part of the kingdom to another
(as was formerly very frequently done), it was found necef-
[ 28 ft Q f ar y to f en( j p urv eyors beforehand to get together a fufficient
quantity of provifions and other neceflaries for the houfe-
hold : and, left the unufual demand fhould raife them to an
exorbitant price, the powers before mentioned were veiled
in thefe purveyors : who, in procefs of time, very greatly
abufed their authority, and became a great oppreflion to the
fubjecT;, though of little advantage to the crown 5 ready-
money in open market (when the royal refidence was more
permanent, and fpecie began to be plenty) being found upon
experience to be the beft proveditor of any. Wherefore by
degrees the powers of purveyance have declined, in foreign
countries as well as our own: and particularly were abolifhed
in Sweden by Guftavus Adolphus towards the beginning of
the laft century *. And, with us in England, having fallen
into difufe during the fufpenfion of monarchy, king Charles
at his reftoration confented, by the fame ftatute, to refign
entirely thefe branches of his revenue and power : and the
parliament, in part of recompenfe, fettled on him, hrs
heirs and fuccefibrs for ever, the hereditary excife
of fifteen pence per barrel on all beer and ale fold in
the kingdom, and a proportionable fum for certain other
liquors. So that this hereditary excife, the nature of which
{hall be farther explained in the fubfequent part of this
chapter, now forms the fixth branch of his majefty's ordr-
nary revenue.
VII. A SEVENTH branch might alfo be computed to have
arifen from wine licenfes ; or the rents payable to the
"crown by fuch perfons as are licenfed to fell wine by retail
throughout England, except in a few privileged places.
Thefe were firft fettled on the crown by the ftatute
4 lift. *7J- ' Mod. Un. Hift. xxxrii. aao.
12 Car.
Ch, 8. of PERSONS. 288
12 Car. II. 0.25. and, together with the hereditary excife,
made up the equivalent in value for the lofs fuftained by the
prerogative in the abolition of the military tenures, and the
right of pre-emption and purveyance : but this revenue was
abolifhed by the flatute 30 Ge'o. II. -c. 19. and an annual
fum of upwards of yooo/. per annum, iffuing out of the
new ftamp duties impofed on wine licenfes, was fettled on
the crown in it's ftead.
VIII. AN eighth branch of the king's ordinary revenue is [ 289 ]
ufually reckoned to confift in the profits arifing from his
forefts. Forefts are wafte grounds belonging to the king,
rcplenifhed with all manner of beads of chafe or venery ;
which are under the king's protection, for the fake of his
royal recreation and delight : and, to that end, and for
prefervation of the king's game, there are particular laws,
privileges, courts and offices belonging to the king's forefts ;
all which will be, in their turns, explained in the fubfequent
books of thefe Commentaries. What we are now to confider
are only the profits arifing to the king from hence, which
confift principally in amercements or fines levied for offences
againft the foreft-laws. But as few, if any, courts of this
kind for levying amercements * have been held fince 1632-,
8 Car. I. (7) and as, from the accounts given of the pro-
ceedings in that court by our hiftories and law-books *,
nobody would now wifli to fee them again revived, it is
needlefs (at leaft in this place) to purfue this enquiry any
farther.
8 Roger North, in his life of lord but I have tret with no report of
keeper North, (43, 44.) mentions an proceedings,
eyre, or iter, to have been held foutb r I Jones, 267 298.
of Trent foon after the reftoration ;
(7) This was one of the odious methods adopted by Car. I. to
raife a revenue without the aid of parliament.
C c 4 IX. THE
289 The RIGHTS BOOK I.
IX. THE profits arifing from the king's ordinary courts
of juftice make a ninth branch of his revenue. And thefe
confift not only in fines impofed upon offenders, forfeitures
of recognizances, and amercements levied upon defaulters ;
but alfo in certain fees due to the crown in a variety of legal
"matters, as, for fetting the great feal to charters, original
writs, and other forenfic proceedings, and for permitting fines
to be levied of lands in order to bar entails, or otherwife to
enfure their title. As none of thefe can be done without the
immediate intervention of the king, by himfelf or his officers,
the law allows him certain perquifites and profits, as a
recompenfe for the trouble he undertakes for the public.
Thefe, in procefs of time, have been almoft all granted out
to private perfons, or elfe appropriated to certain particular
ufes : fo that, though our law-proceedings are ftill loaded
290 ] with their payment, very little of them is now returned into
the king's exchequer j for a part of whofe royal mainte-
nance they were originally intended. All future grants of
them, however, by the ftatute i Ann. ft. i. c. 7. are to
endure for no longer time than the prince's life who grants
them.
X. A TENTH branch of the king's ordinary revenue, faid
to be grounded on the consideration of his guarding and
protecting the feas from pirates and robbers, is the right to
royal jijh, which are whale and fturgeon: and thefe, when either
thrown afhore, or caught near the coaft, are the property of
the king, on account t of their fuperior excellence. Indeed
our anceftors feem to have entertained a very high notion of
the importance of this right : it being the prerogatives of the
kings of Denmark and the dukes of Normandy u ; and from
one of thefe it was probably derived to our princes. It is
exprefsly claimed and allowed in the ftatute de praerogativa
regis": andthemoft antient treatifes of law now extant make
' Vlmvd. 515. Gr. Cuijlutu. caf>. 17.
1 Stieriih. <fc_/Wi 6',vHf. /. a. i.. 8, w 17 Eilw. II. . 11.
Ch. 8. of PERSONS. 290
mention of it * j though they feem to have made a diftin&ion
between whale and fturgeon, as was incidentally obferved in
a former chapter y .
XI. ANOTHER maritime revenue, and founded partly upon
the fame reafon (8), is that of fhip wrecks : which are alfo
declared to be the king's property by the fame prerogative
ftatute 1 7 Edw. II. c. 1 1 . and were fo, long before, at the
common law. It is worthy obfervation, how greatly the
law of wrecks has been altered, and the rigour of it gradually
foftened in favour of the diftrefied proprietors. Wreck, by
the antient common law, was where any fhip was loft at fea,
and the goods or cargo were thrown upon the land ; in which
cafe thefe goods, fo wrecked, were adjudged to belong to the
king : for it was held, that, by the lofs of the fhip, all pro-
perty was gone out of the original owner z . But this was
undoubtedly adding forrow to forrow, and was confonant
neither to reafon nor humanity. Wherefore it was firft [ 291
ordained by king Henry I. that if any perfon efcaped alive
out of the fhip it mould be no wreck a ; and afterwards king
Henry II., by his charter b , declared, that if on the coafts of
* Brafion, /. 3. c. 3. Britton, c. ij. * Dr. & St. d. a. c. 51.
Fleta, /. I. c. 45, 46. Memorand. Spelm. Cod. apud Wilkins, 305.
Scaccb*. H. 14 Edw.I.^-j. prefixed to b 26 May, A. D. 1174. i Rym.
Maynard's year-book of Edward II. Feed. 36.
r Ch. 4. p. 223.
(8) I fhould rather prefume that this prerogative was founded
upon general principles of policy and convenience ; for if every
perfon was permitted to carry home what he found upon the fea-
coaft, the true owner would Hand a very poor chance of recover-
ing back his property : therefore, for the benefit of the owner,
the law places it in the cuftody of the fheriff or a public officer of
the crown, where it will be preferved fafely and honeflly, and to
whom the owner is dire&ed to make inquiries for the property he
has loft. And at a time when a rightful claimant is defpaired of,
it is very properly applied to the augmentation of the public
revenue.
cither
291 The RIGHTS BOOK I.
either England, Poidtou, Oleron, or Gafcony, any {hip fliould
be diftrefled, and either man or beaft fhould efcape or be found
therein alive, the goods fhould remain to the owners, if they
claimed them within three months ; but otherwife fhould be
efteemed a wreck, and fhould belong to the king, or other
lord of the franchife. This was again confirmed with im-
provements by king Richard the firft ; who, in the fecund
year of his reign c , not only eftablifhed thefe conceffions, by
ordaining that the owner, if he was fhipwrecked and efcaped,
" omnes res fuas libtras et quietus haberet" but alfo, that, if
he perifhed, his children, or in default of them his brethren
and filters, (hould retain the property ; and, in default of
brother or fifter, then the goods fhould remain to the king d .
And the law, as laid down by Braclon in the reign of
Henry III., feems ftill to have improved in it's equity. For
then, if not only a dog (for inftance) efcaped, by which the
owner might be difcovered, but if any certain mark were fet
on the goods, by which they might be known again, it was
held to be no wreck e . And this is certainly moft agreeable to
reafon ; the rational claim of the king being only founded upon
this, that the true owner cannot be afcertained. Afterwards.,
in the ftatute of Weftminfter the firft f , the time of limitation
of claims, given by the charter of Henry II., is extended to a
year and a day, according to the ufage of Normandy s : and
it enacts, that if a man, a dog, or a cat, efcape alive, the
veflel fhall not be adjudged a wreck. Thefe animals, as in
Braton, are only put for examples h , for it is now held ', that
292 ] not only if any live thing efcape, but if proof can be made of
the property of any of the goods or lading which come to
fhore, they fhall not be forfeited as wreck. The ftatute further
ordains, that the fheriff of the county fhall be bound to keep
c Rog. Hoved. in Ric. I. " tit re tarn lufiuofii compendium fee*
d In like manner Conftantine the " tetur ?"
great, finding that by the imperial law e Brail. 7.3. c. 3.
the revenue of wrecks was eiven to the f 3 Edw. \. c. 4.
prince's treafury or ffcus, reftrained it 8 Gr. Coiijlum. c.ij.
Viy an edift (Cotf. u. 5. I.), and ordered h Flet. / i. *. 44. a Intl. 167^
them to remain to the owners, adding 5 Rep. 107.
this humane exiHiftulation, " quod enim * Hamilton v. Daviei, Tin. ll Geo.
14 jut laktt ffeui in m'.'icna talamitate, 111. B. R.
the
Ch.8. cfPfiRtONg. 292
the goods a year and a day, (as in France, for one year, agree-
ably to the maritime laws of Oleron ', and in Holland for
a year and a half,) that if any man can prove a property in
them, either in his own right or by right of reprefentation *,
they (hall be reftored to him without delay ; but if no fuch
property be proved within that time, they then {hall be the
king's. If the goods are of a perifhable nature, the (heriff
may fell them, and the money fhall be liable in their ftead '.
This revenue of wrecks is frequently granted out to lords of
manors, as a royal franchife ; and if any one be thus entitled
to wrecks in his own land, and the king's goods are wrecked
thereon, the king may claim them at any time, even after the
year and day m .
IT is to be obferved, that, in order to conftitute a legal
wreck, the goods muft come to land. If they continue at fea,
the law diftinguifhes them by the barbarous and uncouth
appellations of jetfam, jlotfam y and ligan. Jetfam is where
goods are caft into the fea, and there fink and remain under
water : flotfam is where they continue fwimming on the
furface of the waves : ligan is where they are funk in the
fea, but tied to a cork or buoy, in order to be found again IT .
Thefe are alfo the king's, if no owner appears to claim
them ; but if any owner appears, he is entitled to recover
the pofleflion. For even if they be caft overboard, without
any mark or buoy, in order to lighten the (hip, the owner is
not by this a& of neceflity conftrued to have renounced his
property : much lefs can things ligan be fuppofed to be
abandoned, fince the owner has done all in his power to
aflert and retain his property. Thefe three are therefore
accounted fo far a diftinft thing from the former, that by
the king's grant to a man of wrecks, things jetfam, flotfam, [ 2573 J
and ligan will not pafs p .
' 38. due navii eaufa, tjiduittur, tae doati-
k a Inft. 1 68. norxm permanent . Quia falam eft, eat
1 Plowd. 1 66. . tton co anioio ejici, quod quit labert no-
^ Inft. 126. Bro. Abr. tit. Wrttk. lit. InJI. 2. I. 48.
n 5 Rep. 106. P 5 Rep. 108.
Qiiat enim ret in timprjlate levan-
WRECKS,,
203 *** R IGH TS BOOK I.
WRECKS, in their legal acceptation, are at prefent not
very frequent : for if any goods come to land, it rarely hap-
pens, fince the improvement of commerce, navigation, and
correfpondence, that the owner is not able to aflert his pro-
perty within the year and day limited by law. And in order
to preferve this property entire for him, and if poflible to
prevent wrecks at all, our laws have made many very humane
regulations ; in a fpirit quite oppofite to thofe favage laws,
which formerly prevailed in all the northern regions of
Europe, and a few years ago were ftill faid to fubfift on the
coafts of the Baltic fea, permitting the inhabitants to feife
on whatever they could get as lawful prize : or, as an author
of their own expreffes it, " in naufragorum miferia et cala-
" mitate tanquam vultures ad praedam currere q ." For by the
ftatute 27 Edw. III. c. 13. if any fhip be loft on the fhore,
and the goods come to land, (which cannot, fays the ftatute,
be called wreck,) they fhall be prefently delivered to the
merchants, paying only a reafonable reward to thofe that faved
and preferved them, which is entitled falvage. Alfo by the
common law, if any perfons (other than the fheriff) take any
goods fo caft on fhore, which are not legal wreck, the
owners might have a commiffion to inquire and find them
out, and compel them to make reftitution r . And by ftatute
12 Ann. ft. 2. c. 1 8. confirmed by 4 Geo. I. c. 12. in order
to affift the diftrefled, and prevent the fcandalous illegal
practices on fome of our fea-coafts, (too fimilar to thofe on the
Baltic,) it is enacted, that all head-officers and others of
towns near the fea fhall, upon application made to them,
fummon as many hands as are neceflary, and fend them to
the relief of any fhip in diftrefs, on forfeiture of loo/. ; and,
in cafe of affiftance given, falvage fhall be paid by the owners,
to be aflefled by three neighbouring juftices. All perfons
that fecrete any goods (hall forfeit their treble value : and if
294 ] they wilfully do any at whereby the fhip is loft or deftroyed,
by making holes in her, ftealing her pumps, or otherwife,
they are guilty of felony, without benefit of clergy. Laftly,
by the ftatute 26 Geo. II. c. 19. plundering any veflel either
' Stiernh. dejun Sucoti. I. 3. (.$. ' F. N. B,m.
in
('h- 8. ^PERSONS. 294
in diftrefs or wrecked, and whether any living creature be
on board or not, (for, whether wreck or otherwife, it is
clearly not the property of the populace,} fuch plundering,
I lay, or preventing the efcape of any perfon that endeavours
to fave his life, or wounding him with intent to deftroyhim,
or putting out falfe lights in order to bring any veflel into
danger, are all declared to be capital felonies ; in like man-
ner as the deftroying of trees, fteeples, or other ftated fea-
inarks, is punifhed by the ftatute 8 Eliz. c. 13. with a for-
feiture of i oo/. or outlawry. Moreover, by the ftatute of
Geo. II., pilfering any goods caft afhore is declared to be
petty larceny ; and many other falutary regulations are made
for the more effectually preferving mips of any nation in
diftrefs .
XII. A TWELFTH branch of the royal revenue, the right
to mines, has it's original from the king's prerogative of
coinage, in order to fupply him with materials ; and there-
fore thofe mines, which are properly royal, and to which the
king is entitled when found, are only thofe of filver and gold *.
By the old common law, if gold or filver be found in mines
of bafe metal, according to the opinion of fome (he whole
was a royal mine, arid belonged to the king ; though others
held that it only did fo, if the quantity of gold or filver was
of greater value than the quantity of bafe metal u . But now
by the ftatutes I W. & M. ft. I. 0.30. and 5 W. & M.
c. 6. this difference is made immaterial ; it being enacted,
that no mines of copper, tin, iron, or lead, fhall be looked
upon as royal mines, notwithftanding gold or filver may be
extracted from them in any quantities : but that the king, or
perfons claiming royal mines under his authority, may have [-
* By the civil law, to deftroy perfons litan conftitutions, punilhed with the
fliipwrecked, or prevent their faving utmoft feverity all thofe who neglefled
the (hip, is capital. And to fteal even to aflia any fhip in diftrefs, or plun.
a plank from a veflel in diftrefs, or dered any goods caft on fhore. (Lin-
wrecked, makes the party liable to denhrog, Cad. LL. antiq. 146. 7I5-)
anfwer for the whole fliip and cargo. * a luft. J77-
(ff- 47- 9- 3-) The laws alfo of the u Plowd. 336.
Wifigoths, and the moft early Neapo-
the
295 The RIGHTS BOOK I.
the ore, (other than tin ore in the counties of Devon and
Cornwall,) paying for the fame a price dated in the aft.
This was an extremely reafonable law : for now private
owners are not difcouraged from working mines, through a
fear that they may be claimed as royal ones ; neither does the
king depart from the juft rights of his revenue, fmce he may
have all the precious metal contained in the ore, paying no
more for it than the value of the bafe metal which it is fup-
pofed to be ; to which bafe metal the land-owner is by rea-
fon and law entitled.
XIII. To the fame original may in part be referred the
revenue of treafure-trove, (derived from the French word,
trover, to find,) called in Latin thefauntf inventus, which is
where any money or coin, gold, filver, plate, or bullion, is
found hidden in the earth, or other private place, the owner
thereof being unknown ; in which cafe the treafure belongs
to the king : but if he that hid it be known, or afterwards
found out, the owner, and not the king, is intitled to it ".
Alfo if it be found in the fea, or upon the earth, it doth not
belong to the king, but the finder, if no owner appears w . So
that it feems it is the hiding, and not the abandoning of it, that
gives the king a property: Braflon x defigning it, in the words
of the civilians, to be " vetus depofitis pecuniae" This dif-
ference clearly arifes from the different intentions which
the law implies in the owner. A man, that hides his treafure
in a fecret place, evidently does not mean to relinquish his
property ; but referves a right of claiming it again, when he
fees occafion : and if he dies, and the fecret alfo dies with
him, the law gives it the king, in part of his royal revenue.
But a man that fcatters his treafure into the fea, or upon the
public furface of the earth, is conftrued to have abfolutely
abandoned his property, and returned it into the common
ftock, without any intention of reclaiming it : and therefore
it belongs, as in a ftate of nature, to the firft occupant or
u 3 Inft. 13 z. Dalt. of Sheriffs, w Britt. c. 17. Finch. 177.
c. 16. x /-3**3'$4.
finder ;
Ch. 8. of PERSONS. 296
finder (9) ; unlefs the'owner appear and aflert his right, which
then proves that the lofs was by accident, and not with an
intent to renounce his property.
FORMERLY all treafure-trove belonged to the finder * ; as
was alfo the rule of the civil law z . Afterwards it was judged
expedient for the purpofes of the ftate, and particularly for
the coinage, to allow part of what was fo found to the king :
which part was affigned to be all hidden treafure ; fuch as is
cafually loft and unclaimed, and alfo fuch as is deftgnedly
abandoned, ftill remaining the right of the fortunate finder.
And that the prince fhall be entitled to this bidden treafure is
now grown to be, according to Grotius 8 , " jus commune et
" quaft gentium:" for it is not only obferved, he adds, in
England, but in Germany, France, Spain, and Denmark.
The finding of depofited treafure was much more frequent,
and the treafures themfelves more confiderable, in the infancy
of our conftitution, than at prefent. When the Romans, and
other inhabitants of the refpe&ive countries which compofed
their empire, were driven out by the northern nations, they
concealed their money under-ground ; with a view of refort-
ing to it again when the heat of the irruption fhould be over,
and the invaders driven back to their defarts. But, as this
never happened, the treafures were never claimed ; and on the
death of the owners the fecret alfo died along with them.
The conquering generals, being aware of the value of thefe
hidden mines, made it highly penal to fecrete them from the
public fervice. In England therefore, as among the feudifts b ,
the punifhment of fuch as concealed from the king the find-
ing of hidden treafure was formerly no lefs than death; but
now it is only fine and imprifonment c .
v Bra^on, /. 3. c. 3. 3 Inft. 133. b Olanv. /. I. c. 1. Crag. I. 16. 40,
2 // 41.1-31. c 3 Inft. 133.
Dejur.b. et p. I ^. <r. 8. 7.
(9) This certainly is true, though it cannot be reconciled with
the learned judge's doftrine, that all bona vacantia belong to the
king. See p. 299.
XIV. WAIFS,
296 The RIGHTS BOOK I.
XIV. WAIFS, bona tuaviata^ are goods ftolen, and waived
or thrown away by the thief in his flight, for fear of being
apprehended. Thefe are given to the king by the Jaw, as a
punifhment upon the owner, for not himfelf purfuing the
felon, and taking away his goods from him d . And therefore
C 297 ~] if the party robbed do his diligence immediately to follow
and apprehend the thief, (which is called making frefh futt^]
or do convit him afterwards, or procure evidence to convict
him, he fhall have his goods again 6 . Waived goods do alfo
not belong to the king, till feifed by fomebody for his ufe ;
for if the party robbed can feife them firft, though at the
diftance of twenty years, the king fhall never have them f .
If the goods are hid by the thief, or left any where by him,
fo that he had them not about him, when he fled, and there-
fore did not throw them away in his flight ; thefe alfo arc
not bona c waviata y but the owner may have them again when
he pleafes g . The goods of a foreign merchant, though ftolen
and thrown away in flight, fhall never be waifs" ; the reafon
whereof may be, not only for the encouragement of trade,
but alfo becaufe there is no wilful default in the foreign
merchant's not purfuing the thief j he being generally a
ftranger to our laws, our ufages, and our language.
XV. ESTRAYS are fuch valuable animals as are found
wandering in any manor or lordfhip, and no man knoweth the
owner of them, in which cafe the law gives them to the king
as the general owner and lord paramount of the foil, in recom-
penfe for the damage which they have done therein (10) :
"Cro.Eliz.694. 8 5 Rep. 10?.
Finch. L.aiZ. h Fitz. Abr. tit. Ejlray. 1.3. Bulftr.
T Ibid. 19.
( 10) This reafon is not very fatisfa&ory ; for the king being the
vlttmus hares of all the land in the kingdom, they muft do the fame
injury to his intereft, whether they are grazing in one place or
another out of the king's domains. But the law is probably founded
upon general policy ; for by giving the eftray to the king or his
grantee, and not to the finder, the owner has the beft chance of
having
Ch. 8. f PERSONS. 297
and they now mod commonly belong to the lord of the
manor by fpecial grant from the crown. But, in order to
veft an abfolute property in the king, or his grantees, they
muft be proclaimed in the church and two market towns
next adjoining to the place where,they are found ; and then,
if no man claims them, after proclamation and a year and a
day pafled, they belong to the king or his fubftitute without
redemption ' ; even though the owner were a minor, or under
any other legal incapacity k . A provifion fimilar to which
obtained in the old Gothic conftitution, with regard to all
things that were found, which were to be thrice proclaimed j
pr'imum cor am comitibus et viator ibus obviis t deinde in proximo [ 308
villa vel pagOy pojlremo cor am ecclefta veljudicio : and the fpace
of a year was allowed for the owner to reclaim his property 1 .
If the owner claims them within the year and day, he muft pay
the charges of finding, keeping, and proclaiming them* 1 (i i).
The king or lord has no property till the year and daypafled:
for if a lord keepeth an eftray three quarters of a year, and
within the year it ftrayeth again, and another lord getteth it,
the fir ft lord cannot take it again n . Any beads may be
eftrays, that are by nature tame or reclaimable, and in which
there is a valuable property, as {heep, oxen, fwine, and horfes,
which we in general call cattle; and fo Fleta defines them,
pec us vagans, quod nullus petit ^fequitur^veladvocat. For ani-
mals upon which the law fets no value, as a dog or cat, and
1 Mirr. c. 3. 19. " m Dalt. Sh. 79.
k 5 Rep. 108. Bro. Air. tit. Eflray. n Finch. L. 177.
Cro. Eliz. 716. L. i. c. 43.
1 Stiernh. de jure Gotbor. 1. 3 . e. 5.
having his property reftored to him ; and it leffens the temptation
to commit thefts, as it prevents a man from pretending that he
had found, as an eftray, what he had actually ftolen ; or according
to the vulgar phrafe, that he had found what was never loft.
( 1 1 ) But if any other perfon finds and takes care of another's
property, not being entitled to it as an eftray, the owner may re-
cover it or it's value, without being obliged to pay the expences
of keeping. 2 Bl. Rep. 1117. ^ Hen. BL 254.
VOL. I. D d animals
298 The RIGHTS BOOK I.
animals ferae naturae, as a bear or wolf, cannot be confidered
as eftrays. So fwans may be eftrays, but not any other fowl p ;
whence they are faid to be royal fowl. The reafon of which
diftin&ion feems to be, that cattle and fwans being of a re-
claimed nature, the owner's property in them is not loft
merely by their temporary efcape ; and they alfo, from their
intrinfic value, are a fufficient pledge for the expence of the
lord of the franchife in keeping them the year and a day. For
he that takes an eftray is bound, fo long as he keeps it, to
find it in provifions, and preferve it from damage* 1 ; and may
not ufe it by way of labour, but is liable to an action for fo
doing r . Yet he may milk a cow, or the like ; for that tends
to the prefervation, and is for the benefit of the animal 8 .
BESIDES the particular reafons before given why the king
fhould have the feveral revenues of royal fifh, fhipwrecks,
treafure-trove, A waifs, and eftrays, there is alfo one general
reafon which holds for them all : and that is, becaufe they
are bona vacant'ia, or goods in which no one elfe can claim a
property. And therefore by the law of nature they belonged
to the firft occupant or finder ; and fo continued under the
[ 299 3 imperial law. But, in fettling the modern conftitutions of
moft of the governments of Europe, it was thought proper
(to prevent that ftrife and contention, which the mere title
of occupancy is apt to create and continue, and to provide
for the fupport of public authority in a manner the leaft bur-
thenfome to individuals) that thefe rights fhould be annexed
to the fupreme power by the pofitive laws of the ftate. And
fo it came to pafa that, as Bratlon exprefles it l , haec quae
nulltus in bonis funt y et olim fuerunt inventoris de jure naturally
jam ejpciuntur principis de jure gentium (12).
P 7 Rep. 17. " Cro. Jac. 148. Noy. 119.
i Roll. Abr. 889. * L. i.e. 12.
T Cro. Jac. 147.
(12) This cannot be reconciled with what the learned Judge has
advanced in p. 295. viz. that if " any thing be found in the fea,
" or upon the earth, it doth not belong to the king but the finder,
" if no owner appears." That certainly is the law of England ;
7 and
Ch. 8. of PERSONS. 299
XVI. THE next branch of the king's ordinary revenue
confifts in forfeitures of lands and goods for offences ; bona
confifcatcty as they are called by the civilians, becaufe they
belonged to thejifcus or imperial treafuryj or, as our lawyers
term \.\\.Qn\ y forisfaSla ; that is, fuch whereof the property is
gone away, or departed from the owner. The true reafon
and only fubftantial ground of any forfeiture for crimes con-
fift in this ; that all property is derived from fociety, being
one of thofe civil rights which are conferred upon individuals,
in exchange for that degree of natural freedom, which every
man mufl facrifice when he enters into focial communities.
If therefore a member of any national community violates
the fundamental contract of his aflbciation, by tranfgrefling
the municipal law, he forfeits his right to fuch privileges as
he claims by that contract ; and the ftate may very juftly
refume that portion of property, or any part of it, which the
laws have before affigned him. Hence, in every offence
of an atrocious kind, the laws of England have exacted a
and which, with deference to the learned Judge, is the general
rule with regard to all bona vacantia, except in the particular in-
ftances in which the law has given them to the king. Thofe in-
ftances are exceptions, which prove the rule, for exprejfio un'tus eft
exclufw alterius. See the cafe of Armory v. Delamere, in Strange,
505. where a chimney-f weeper's boy recovered from a goldfmith,
who detained from him a diamond which he had found, the value
of the fined diamond which would fit the focket from which it
was taken. And it was clearly held, that the boy had a right to
it againft. all the world, except the owner, who did not appear.
I cannot but think that the learned Judge has mifconceived
the fentence in Bra&on, which is this, Item de hiis, qua pro wayvio
babentur,Jicut de averiis, ubi non apparet dominus, et qua olim fuerunt
inventorii de jure natural^ jam efficluntur princlpis de jure gentium.
Here the qua olim refers only to the two antecedents wayvia and
averia, or perhaps to averia only ; by which confirmation the fen-
tence is confiftent, and the whole correft. But if it had been in-
tended that it mould be underftood as if omnia had preceded qua, it
would have been fuperfluous to have inftanced averta t and the
fentence would certainly have been erroneous.
D d 2 total
299 The RIGHTS BOOK I.
total confifcation of the moveables or perfonal eftate , and in
many cafes a perpetual, in others only a temporary, lofs of
the offender's immoveables or landed property ; and have
vefted them both in the king, who is the perfon fuppofed
to be offended, being the one vifible magiftrate in whom the
majefty of the public refides. The particulars of thefe for-
feitures will be more properly recited when we treat of crimes
C 3 ] and mifdemefnors. I therefore only mention them here, for
the fake of regularity, as a part of the cenfus rega/is : and
(hall poftpone for the prefent the farther confideration of all
forfeitures, excepting one fpecies only, which arifes from the
misfortune rather than the crime of the owner, and is called
a deodand.
BY this is meant whatever perfonal chattel is the imme-
diate occafion of the death of any reafonable creature :
which is forfeited to the king, to be applied to pious ufes,
and diftributed in alms by his high almoner u ; though for-
merly deftined to a more fuperftitious purpofe. It feems to
have been originally defigned, in the blind days of popery,
as an expiation for the fouls of fuch as were fnatched away
by fudden death ; and for that purpofe ought properly to
have been given to holy church w : in the fame manner as
the apparel of a ftranger, who was found dead, was applied
to purchafe maffes for the good of his foul. And this may
account for that rule of law, that no deodand is due where
an infant under the age of difcretion is killed by a fall
from a cart, or horfe, or the like, not being in motion x ;
whereas, if an adult perfon falls from thence and is killed,
the thing is certainly forfeited. For the reafon given by far
Matthew Hale feems to be very inadequate, viz. becaufe an
infant is not able to take care of himfelf ; for why fhould
the owner fave his forfeiture on account of the imbecility
of the child, which ought rather to have made him more
cautious to prevent any accident of mifchief ? The true
ground of this rule feems rather to have been, that die child,
i Hal. P. C. 419- Fleta, /. i. c. 45. Staunf. P. C. 20, ai.
Fitzh. Abr. tit. Enditement. pi. ^^. * 3 Inft. 57. i Hal. P. C. 4.
by
Ch. 8. of PERSONS. 300
by reafon of it's want of difcretion, was prefumed incapable
of aclual fin, and therefore needed no deodand to purchafe
propitiatory mafies : but every adult, who died in alual fin,
ftood in need of fuch atonement, according to the humane
fuperftition of the founders of the Englifh law.
THUS ftands the law if a perfon be killed by a fall from a
thing (landing ftill. But if a horfe, or ox, or other animal,
of his own motion, kill as well an infant as an adult, or if F_ 301 ~\
a cart run over him, they {hall in either cafe be forfeited 33
deodands y ; which is grounded upon this additional reafon,
that fuch misfortunes are in part owing to the negligence of
the owner, and therefore he is properly punifhed by fuch
forfeiture. A like punimment is in like cafes inflicted by the
Mofaical law z ; " if an ox gore a man that he die, the ox
" (hall be ftoned, and his flefti fliall not be eaten." And,
among the Athenians a , whatever was the caufe of a man's
death, by falling upon him, was exterminated or cafl out of
the dominions of the republic (13). Where a thing not in
motion is the occafion of a man's death, that part only which
is the immediate caufe is forfeited ; as if a man be climbing
up the wheel of a cart, and is killed by falling from it, the
wheel alone is a deodand b : but, wherever the thing is in
motion, not only that part which immediately gives the
y Omnia, quae movent ad mortem, a perfon was drowned was ordered to
font Deo danda. Bradon. /. 3. c. 5. be filled up, under the infpedion of
1 Exotl. xxi. 28. the coroner. Flet,/. I. e. 25. 10. Fitzh.
* Aefchin. con. Ctejifb. Thus too, Abr. t. coro**. 416.
by our antient law, a well in which b 2 Hal. P. C. 422.
(13) This was one of Draco's laws ; and perhaps we may think
the judgment, that a ftatue mould be thrown into the fea for hav-
ing fallen upon a man, lefs abfurd, when we reflect that there may-
be found policy in teaching the mind to contemplate with horror
the privation of human life, and that our familiarity even with
an infenfible objed that has been the occafion of death may leflen
that fentiment. Though there may be wifdom in withdrawing
fuch a thing from public view, yet there can be none in treating it
as if it was capable of underftanding the ends of punimment.
D d 3 wound,
301 The RIGHTS BOOK I.
wound, (as the wheel, which runs over his body,) but all
things which move with it, and help to make the wound
more dangerous, (as the cart and loading, which increafe the
prefiure of the wheel,) are forfeited : It matters not whether
the owner were concerned in the killing or not : for, if a
man kills another with my fword, the fword is forfeited d as
an accurfed thing e . And therefore, in all indictments for
homicide, the inftrument of death and the value are prefented
and found by the grand jury, (as, that the ftroke was given
by a certain penknife, value fixpence,) that the king or his
grantee may claim the deodand : for it is no deodand, unlefs
it be prefented as fuch by a jury of twelve men f . No deo->
dands are due for accidents happening upon the high fea,
that being out of the jurifdi&ion of the common law : but if
[ 302 ] a man falls from a boat or fhip in freih water, and is drowned,
it hath been faid, that the veffel and cargo are in ftriftnefs
of law a deodand g . But juries have of late very frequently
taken upon themfelves to mitigate thofe forfeitures, by find-
ing only fome trifling thing, or part of an entire thing, to
have been the occafion of the death. And in fuch cafes,
although the finding by the jury be hardly warrantable by
law, the court of king's bench hath generally refufed to
interfere on behalf of the lord of the franchife, to aflift fo
unequitable a claim h (14).
c I Hawk. P.C.f.46. vt in parte infelicitatit meae numtra-
d A fimilar rule obtained among the tur, tatuiffe -vel aedlfcajfe altquod quo
antient Goths. Si quit, me ncfcicnte, homo feriret. Stiernhook da jure Gotb.
quocunque meo telo vel inflrumento in I. 3. <:. 4.
ferniciem fuam abutatur / vel ex aedibus Dr. & St. d.3. c.JI.
melt cadat, vel incidat in futeum mtum, { 3 Inft. 57.
quantumvis teflum et munitum, vel in * 3 I n ft. jg. x Hal. P. C. 413.
tatarafium, et ful molendino meo con- Molloy dt jure marititn. . 415.
fringatur, iffe aliqua mulSta pltftar ; " Fofter of homicide. 266.
(14) But would it not be much better that laws fhould be
abolifhed, the policy of which has long ceafed, and at which the
underftandings of mankind fo ilrongly revolt, that juries are in-
<;lined to trifle with their oaths, and judges to encourage ridiculous
diilin&ions, which tend to bring the general adminiftration of
juftice into contempt ?
DEODANDS,
Ch. 8. of PiiRSONS. 302
DEODANDS, and forfeitures in general, as well as wrecks,
treafure-trove, royal fifli, mines, waifs, and eftrays, may be
granted by the king to particular fubje&s, as a royal fran-
chife : and indeed they are for the moft part granted out to
the lords of manors, or other liberties : to the perverfion of
their original defign.
XVII. ANOTHER branch of the king's ordinary revenue
arifes from efcheats of lands, which happen upon the defect
of heirs to fucceed to the inheritance ; whereupon they in
general revert to and veft in the king, who is efteemed, in
the eye of the law, the original proprietor of all the lands in
the kingdom. But the difcuffion of this topic more properly
belongs to the fecond book of thefe Commentaries, wherein
we (hall particularly confider the manner in which lands may
be acquired or loft by efcheat.
XVIII. I PROCEED therefore to the eighteenth and laft
branch of the king's ordinary revenue ; which conGfts in
the cuftody of idiots, from whence we fhall be naturally led
to confider alfo the cuftody of lunatics.
AN idiot, or natural fool, is one that hath had no under-
ftanding from his nativity j and therefore is by law prefumed
never likely to attain any. For which reafon the cuftody of L 33 J
him and of his lands was formerly vefted in the lord of the
fee h ; (and therefore ftill, by fpecial cuftom, in fome manors
the lord fhall have the ordering of idiot and lunatic copy-
holders';) but, by reafon of the manifold abufes of this power
by fubjefts, it was at laft provided by common confent, that
it mould be given to the king, as the general confervator of
his people ; in order to prevent the idiot from wafting his
eftate ; and reducing himfelf and his heirs to poverty and
diftrefs k . This fifcal prerogative of the king is declared in
parliament by ftatute 17 Edw. II. c. 9. which dire&s (in af*
firmance of the common law l ) that the king fhall have ward
h Flet. /. I. c. II. tO. ' 4 Rep jl 26. Memoranf Stacc 2O
1 Dyer, 501. Hutt. 17. Noy. a;. Ediu.l. (prefixed to Mjynard's year-.
* F. N. B. J3 z. book of Edw. 1 1.) fol. 10. 34.
Dd 4 of
303 The RIGHTS BOOK I.
of the lands of natural fools, taking the profits without wafte
or deftru&ion, and fliall find them necefiaries ; and after the
death of fuch idiots he (hall render the eftate to the heirs :
in order to prevent fuch idiots from aliening their lands,
and their heirs from being difmherited (15).
BY the old common law there is a writ de idiota inquirendo,
to inquire whether a man be an idiot or not m : which muft
be tried by a jury of twelve men : and, if they find him purus
'tdiota, the profits of his lands and the cuftody of his perfon
may be granted by the king to fome fubjeft, who has intereft
enough to obtain them n . This branch of the revenue hath
been long confidered as a hardfhip upon private families : and
fo long ago as in the 8 Jac. I. it was under the confideration
of parliament, to veft this cuftody in the relations of the
party, and to fettle an equivalent on the crown in lieu of it ;
it being then propofed to (hare the fame fate with the flavery
of the feodal tenures, which has been fince abolifhed. Yet
few inftances can be given of the oppreffive exertion of it,
fince it feldom happens that a jury finds a man an idiot a
nativitate y but only non compos mentis from fome particular
time ; which has an operation very different in point of law.
m F.N. B. 331. mon fpeech, by that ufual expreffion of
n This power, though of late very begging a man for a fool,
rarely exerted, is ftill alluded to in com- 4 Inft. 303. Com. Jonrn. 1610.
(15) The jurifdiftion which the chancellor has generally or
perhaps always exercifed over the perfon and eftates of lunatics
and idiots, is not necefTarily annexed to the cuftody of the great
feal ; for it has been declared by the houfe of lords, " that the
" cuftody of idiots and lunatics was in the power of the king, who
" might delegate the fame to fuch perfons as he mould think fit."
And upon every change of the great feal, a fpecial authority under
his majefty's royal fign manual is granted to the new chancellor
for that purpofe. Hence no appeal lies from the chancellor's or-
ders upon this fubjeft to the houfe of lords, but to the king in
council. Dom. Proc. 14 Feb. 1726. 3 P. Wms. 108.
A MAN
Ch. 8. if PERSONS. 304
A MAN is not an idiot p , if he hath any glimmering of
reafon, fo that he can tell his parents, his age, or the like
common matters. But a man who is born deaf, dumb, and
blind, is looked upon by the law as in the fame ftate with an
idiot i ; he being fuppofed incapable of any underftanding,
as wanting all thofe fenfes which furnifh the human mind
with ideas.
A LUNATIC, or non compos mentis, is one who hath had
underftanding, but by difeafe, grief, or other accident, hath
loft the ufe of his reafon r . A lunatic is indeed properly one
that hath lucid intervals : fometimes enjoying his fenfes, and
fometimes not, and that frequently depending upon the
change of the moon. But under the general name of non
compos mentis (which fir Edward Coke fays is the moft legal
name s ) are comprifed not only lunatics, but perfons under
frenzies, or who lofe their intellects by difeafe ; thofe that
grow deaf, dumb, and blind, not being born fo ; or fuch, in
fhort, as are judged by the court of chancery incapable of
conducting their own affairs. To thefe alfo, as well as
idiots, the king is guardian, but to a very different purpofe.
For the law always imagines, that thefe accidental misfor-
tunes may be removed j and therefore only conftitutes the
crown a truftee for the unfortunate perfons, to protect their
property, and to account to them for all profits received, if
they recover, or after their deceafe to their reprefentatives.
And therefore it is declared by the ftatute 17 Edw. II. c. 10.
that the king fhall provide for the cuftody and fuftentation of
lunatics, and preferve their lands and the profits of them for
their ufe, when they come to their right mind; and the king
fhall take nothing to his own ufe ; and if the parties die in
fuch eftate, the refidue fhall be diftributed for their fouls by
the advice of the ordinary, and of courfe (by the-fubfequent
amendments of the law of adminiftration) (hall now go to
their executors or adminiftrators.
PF.N. B. 233. Seacct. ao Ed. I. (in Maynard's year-
i Co. Litt. 44. Fleta, /. 6. t. 40. book of Edw. II.) o.
r IJitta m cafu it infrtnitatt. Mtm. I Illft. 246.
4 Ox
304 The RIGHTS BOOK I.
ON the firft attack of lunacy or other occafional infaniry,
while there may be hopes of a fpeedy reflitution of reafon,
it is ufual to confine the unhappy objects in private cuftody
under the direction of their neaveil friends and relations : and
the legiilature, to prevent all abufes incident to fuch private
cuftody, hath thought proper to interpofe it's authority, by
ftatute 14 Geo. III. c. 49. (continued by 19 Geo. HI. c. 15.)
(i<5) for regulating private mad-houfes. But, when the dif-
order is grown permanent, and the circumftances of the party
will bear fuch additional expence, it is proper to apply to the
royal authority to warrant a lafting confinement.
C 35 ] THE method of proving a perfon non compos is very fimilar
to that of proving him an idiot. The lord chancellor, to
whom, by fpecial authority from the king, the cuftody of
idiots and lunatics is entrufted l , upon petition or inform-
ation, grants a commiflion in nature of the writ de idiota in-
quirendoy to inquire into the party's ftate of mind ; and if
he be found non compos, he ufually commits the care of his
perfon, with jv fuitable allowance for his maintenance, to
fome friend, who is then called his committee. However,
to prevent finifter practices, the next heir is feldom permit-
ted to be this committee of the perfon ; becaufe it is his in-
tereft that the party mould die. But it hath been faid, there
lies not the fame objection againft his next of kin, provided he
be not his heir ; for it is his intereft to preferve the lunatic's
life, in order to increafe the perfonal eftate by favings, which
he or his family may hereafter be entitled to enjoy". The
* 3 P. Wms. 108. u 2 P. Wms. 638.
(16) And made perpetual by 26 Geo. III. 0.91. By that
llatute no perfon (hall confine more than one lunatic in a houfe
kept for the reception of lunatics, without an annual licenfe from
the college of phyficians or the juftices in feflions, under a penalty
of 5OO/. And if the keeper of a licenfed houfe receive any perfon
as a lunatic, without a certificate from a phyfician, furgeon, or
apothecary, that he is a fit perfon to be received as a lunatic, he
fliall forfeit ioo/.
heir
Ch. 8. of PERSONS. 305
heir is generally made the manager or committee of the
eftatc, it being clearly his intereft by good management to
keep it in condition : accountable however to the court of
chancery, and to the non compos himfelf, if he recovers ; or
otherwife to his adminiftrators.
IN this care of idiots and lunatics the civil law agrees with
ours j by afligning them tutors to protect, their perfons, and
curators to manage their eftates. But in another inftance the
Roman law goes much beyond the Englifh. For, if a man
by notorious prodigality was in danger of wafting his eftate,
he was looked upon as non compos, and committed to the care
of curators or tutors by the praetor u. And by the laws of
Solon fuch prodigals were branded with perpetual infamy w .
But with us, when a man on an inqueft of idiocy hath been [ 306 ]
returned an unthrifty and notan/Wzo/*, no farther proceedings
have been had. And the propriety of the practice itfelf
feems to be very queflionable. It was doubtlefs an excellent
method of benefiting the individual, and of preferring eftates
in families ; but it hardly feems calculated for the genius of
a free nation, who claim and exercife the liberty of ufing
their own property as they pleafe. " Sicuteretuo, ut allenum
" non laedas" is the only reftridtion our laws have given
with regard to economical prudence. And the frequent
circulation and transfer of lands and other property, which
cannot be effected without extravagance fomewhere, are
perhaps not a little conducive towards keeping our mixed
conftitution in it's due health and vigour.
THIS may fuffice for a fho'rt view of the king's ordinary
revenue, or the proper patrimony of the crown ; which was
very large formerly, and capable of being increafed to a mag-
nitude truly formidable : for there are very few eftates in the
kingdom, that have not, at fome period or other fince the
u Solent praetor et, Jt talem hominem tamdiu erunt ambo in cttratione,- quatn-
invenerinf, gut neque temput neyue diti velfuriofus fanitatem, vel tile bonot
fnem exfenfarum labet, fed bona fua marts, receferit. Ff. ZJ. IO. I.
dllaceraado et dijjipanda profundity cu- w Potter Antiq. b.I. c. 36.
ratorem et dare, exemplo furioft : et * Bro. Air. tit. Idiot.
Norman
306 The RIGHTS BOOK I.
Norman conqueft, been vefted in the hands of the king by
forfeiture, efcheat or otherwife. But fortunately for the
liberty of the fubject, this hereditary landed revenue, by a
feries of improvident management, is funk almoft to nothing;
and the cafual profits, arifing from the other branches of the
cenfus regalifj are likewife almoft all of them alienated from
the crown. In order to fupply the deficiencies of which, we
are now obliged to have recourfe to new methods of raifing
money, unknown to our early anceftors ; which methods
conflitute the king's extraordinary revenue. For, the public
patrimony being got into the hands of private fubjedts, it is
but reafonable that private contributions mould fupply the
public fervice. Which, though it. may perhaps fall harder
upon fome individuals, whofe anceftors have had no (hare in
the general plunder, than upon others, yet, taking the nation
throughout, it amounts to nearly the fame ; provided the
gain by the extraordinary mould appear to be no greater than
the lofs by the ordinary revenue. And, perhaps, if every gen-
C 37 ] tl eman i* 1 tne kingdom was to be ftripped of fuch of his lands
as were formerly the property of the crown ; was to be again
fubjefl to the inconveniences of purveyance and pre-emption,
the oppreflion of foreft laws, and the flavery of feodal tenures ;
and was to refign into the king's hands all his royal franchifes
of waifs, wrecks, eftrays, treafure-trove, mines, deodands,
forfeitures, and the like ; he would find himfelf a greater lofer,
than by paying his quota to fuch taxes as are neceflary to the
fupport of government. The thing therefore to be wifhed
and aimed at in a land of liberty is by no means the total
abolition of taxes, which would draw after it very pernicious
confequences, and the very fuppofition of which is the height
of political abfurdity. For as the true idea of government
and magistracy will be found to confift in this, that fome few
men are deputed by many others to prefide over public affairs,
fo that individuals may the better be enabled to attend their
private concerns ; it is neceflary that thofe individuals fhould
be bound to contribute a portion of their private gains, in
order to fupport that government, and reward that magiftracy,
which protedls them in the enjoyment of their refpelive
properties,
Ch. 8. of PERSONS. 307
properties. But the things to be aimed at are wifdom and
moderation, not only in granting, but alfo in the method of
raifing the necefiary fupplies ; by contriving to do both in
fuch a manner as may be moft conducive to the national
welfare, and at the fame time moft confident with ceconomy
and the liberty of the fubject ; who, when properly taxed,
contributes only, as was before obferved ?, fome part of his
property, in order to enjoy the reft.
THESE extraordinary grants are ufually called by the
fynonymous names of aids, fubfidies, and fupplies ; and are
granted, we have formerly feen z , by the commons of Great
Britain in parliament aflembled : who, when they have
voted a fupply to his majefty, and fettled the quantum of that
fupply, ufually refolve themfelves into what is called a com-
mittee of ways and means, to confider the ways and means
of raifing the fupply fo voted. And in this committee every
member (though it is looked upon as the peculiar province [ 308 ]
of the chancellor of the exchequer) may propofe fuch fcheme
of taxation as he thinks will be leaft detrimental to the pub-
lic. The refolutions of this committee, when approved by
a vote of the houfe, are in general efteemed to be (as it
were) final and conclufive. For, though the fupply cannot
be actually raifed upon the fubjec~l till directed by an at
of the whole parliament, yet no monied man will fcruple to
advance to the government any quantity of ready cafh, on
the credit of a bare vote of the houfe of commons, though
no law be yet patted to eftablifh it.
THE taxes, which are raifed upon the fubjecl, are either
annual or perpetual. The ufual annual taxes are thofe upon
land and malt.
I. THE land tax, in it's modern fhape, has fuperfeded all
the former methods of rating either property, or perfons in
refpect of their property, whether by tenths or fifteenths,
fubfidies on land, hydages, fcutages, or talliages 5 a mort
explication of which will however greatly affift us in under-
ft and ing our antient laws and hiftory.
, y page 8a. * Pg 169.
TENTHS,
jo8 The RIGHTS BOOK I.
TENTHS, and fifteenths % were temporary aids ifluing out
of perfonal property, and granted to the king by parliament.
They were formerly the real tenth or fifteenth part of all the
moveables belonging to the fubjedt ; when fuch moveables,
or perfonal eftates, were a very different and a much lefs
confiderable thing than what they ufually are at this day.
Tenths are faid to have been firft granted under Henry the
fecond, who took advantage of the fafliionable zeal for croi-
fades to introduce this new taxation, in order to defray the
expence of a pious expedition toPaleftine, which he really or
feemingly had projected againft Saladine emperor of the Sa-
racens ; whence it was originally denominated the Saladine
tenth b . But afterwards fifteenths were more ufually granted
than tenths. Originally the amount of thefe taxes was un-
I 309 ] certain, being levied by afieflments new made at every frefh
grant of the commons, a commiflion for which is preferved
by Matthew Paris c : but it was at length reduced to a cer-
tainty in the eighth year of Edward III., when, by virtue of
the king's commiflion, new taxations were made of every
townfhip, borough, and city in the kingdom, and recorded
in the exchequer : which rate was, at the time, the fifteenth
part of the value of every townfhip, the whole amounting to
about 29,ooo/. and therefore it ftill kept up the name of a
fifteenth, when, by the alteration -of the value of money and
the increafe of perfonal property, things came to be in a very
different fituation. So that when, of later years, the com-
mons granted the king a fifteenth, every parifh in England
immediately knew their proportion of it ; that is, the fame
identical fum that was aflefled by the fame aid in the eighth
of Edward III. ; and then raifed it by a rate among them-
felves, and returned it into the royal exchequer.
THE other antient levies were in the nature of a modern
land-tax : for we may trace up the' original of that charge as
high as to the introduction of our military tenures d j when
4lnft.77. 4 Inft. 34. * A. D. 1232.
h Hoved. A.I), nS8. Carte. 1.719. d See l ' ie fecond book of thefe corn-
Hume, i. 329. raentaries.
every
/
Ch. 8. of PERSONS. 309 .
every tenant of a knight's fee was bound, if called upon, to
attend the king in his army for forty days in every year.
But this perfonal attendance growing troublefome in many
refpedb, the tenants found means of compounding for it, by
firft fending others in their ftead, and in procefs of time by
making a pecuniary fatisfa&ion to the/ crown in lieu of it.
This pecuniary fatisfa&ion at laft came to be levied by aflfefl-
ments, at fo much for every knight's fee, under the name of
fcutages ; which appear to have been levied for the firft time
in the fifth year of Henry the fecond, on account of his expe-
dition to Touloufe, and were then (I apprehend) mere arbi-
trary compofitions, as the king and the fubjecl could agree.
But this precedent being afterwards abufed into a means of [ 310 3
oppreflion, (in levying fcutages on the landholders by the
royal authority only, whenever our kings went to war, in
order to hire mercenary troops, and pay their contingent
expences,) it became thereupon a matter of national complaint j
and king John was obliged to promife in his tnagna caria e ,
that no fcutage mould be impofed without the confent of the
common council of the realm. This claufe was indeed
omitted in the charters of Edward III., where f we only find
it ftipulated, that fcutages fhould be taken as they were ufed
to be in the time of king Henry the fecond. Yet afterwards,
by a variety of ftatutes under Henry I. and his grandfon*,
it was provided, that the king fliall not take any aids or talks,
any talliage or tax, but by the common aflent of the great
men and commons in parliament.
OF the fame nature with fcutages upon knights' fees were
the afieflments of hydage upon all other lands, and of talliage
upon cities and burghs h . But they all gradually fell into
difufe upon the introduction of fubfidies, about the time of
king Richard II. and king Henry IV. Thefe were a tax, not
immediately impofed upon property, but .upon perfons in
refpeft of their reputed eftates, after the nominal rate of 4-r.in
* cap. 14. ft. 4. C. I. 14 Edw. III. fl. 2. c. I.
f 9 Hen. III. c. 37. h Madox, hift. exch. 480.
* 25 Edw. I. c, 5, 6. 34 Edw. !.
the
310 The RIGHTS BOOK I.
the pound for lands, and is. %d. for goods ; and for thofe of
aliens in a double proportion. But this afleffment was alfo
made according to an antient valuation ; wherein the com-
putation was fo very moderate, and the rental of the king-
dom was fuppofed to be fo exceeding low, that one fubfidy
of this fort did not, according to fir Edward Coke ', amount to
more than 70,0007. whereas a modern land-tax at the fame
rate produces two millions. It was antiently the rule never
to grant more than one fubfidy and two fifteenths at a time :
but this rule was broken through for the firft time on a very
preffing occafion, the Spanifh invafion in 1588 ; when the
parliament gave queen Elizabeth two fubfidies and four fif-
teenths. Afterwards, as money funk in value, more fubfidies
were given ; and we have an inftance in the firft parliament
of 1640, of the king's defiring twelve fubfidies of the com-
[311] mons, to be levied in three years ; which was looked upon
as a ftartling propofal : though lord Clarendon fays k , that
the fpeaker, ferjeant Glanville, made it manifeft to the houfe,
how very inconfiderable a fum twelve fubfidies amounted to,
by telling them he had computed what he was to pay for
them himfelf ; and when he named the fum, he being known
to be poflefled of a great eftate, it feemed not worth any
farther deliberation. And indeed, upon calculation we
fhall find that the total amount of thefe twelve fubfidies, to
be raifed in three years, is lefs than what is now raifed in one
year by a land-tax of two millings in the pound.
THE grant of fcutages, talliages, or fubfidies by the com-
mons did not extend to fpiritual preferments ; thofe being
ufually taxed at the fame time by the clergy themfelves in
convocation : which grants of the clergy were confirmed in
parliament, otherwife they were illegal, and not binding :
as the fame noble writer obferves of the fubfidies granted by
the convocation, which continued fitting after the diflblu-
tion of the firft parliament in 1640. A fubfidy granted by
the clergy was after the rate of 4J-. in the pound according
J 4lnft.;u. k Hift.b.a.
to
Ch. 8. ef PERSONS. 311
to the valuation of their livings in the king's books : and
amounted, as fir Edward Coke tells us l t to about 2O,ooo/.
While this cuftom continued, convocations were wont to fit
as frequently as parliaments : but the laft fubfidies, thus
given by the clergy, were thofe confirmed by ftatute
1 5 Car. II. cap. I o. fmce which another method of taxation
has generally prevailed,, which takes in the clergy as well
as the laity : in recompence for which the beneficed clergy
have from that period been allowed to vote at the election
of knights of the (hire 111 ; and thenceforward alfo the prac-
tice of giving ecclefiaftical fubfidies hath fallen into total
difufe.
THE lay fubfidy was ufually raifed by commiflionefS ap-
pointed by the crown, or the great officers of ftate : and there-
fore in the beginning of the civil wars between Charles I. and
his parliament, the latter having no other fufficient revenue [312]
to fupport themfelves and their meafures, introduced the
practice of laying weekly and monthly afleflments n of a fpe-
cific fum upon the feveral counties of the kingdom j to be
levied by a pound-rate on lands and perfonal eitates ; which .
were occafionally continued during the whole ufurpation,
fometimes at the rate of iao,ooo/. a month, fometimes at
inferior rates . After the reftoration the antient method of
granting fubfidies, inftead of fuch monthly afleflments, was
twice, and twice only, renewed ; viz. in 1663, when four
fubfidies were granted by the temporality, and four by the
clergy : and in 1670, when 8oo,ooo/. was raifed by way of
fubfidy, which was the laft time of raifing fupplies in that
I 4 Inft. 33. One of thefe bills of afleflment,
m Dalt. of (heriffs, 418. Gilb. hift. in 1656, is preferved in Scobell's col-
of exch. c. 4. leftion, 400. (17)
II 29 Nov. 4 Mar. 1643.
(17) Sir John Sinclair has given the proportions to be levied
upon each county of an afleflment of 7O,ooo/. a month in the year
1660, in his Hiftory of the Public Revenue, t Part, 189.
VOL. I. E e manner.
312 The RIGHTS BOOK I.
manner (18). For, the monthly afleflments being now efta-
bfifhed by cuftom, being raifed by commiffioners named by
parliament, and producing a more certain revenue ; from
that time forwards we hear no more of fubfidies, but occa-
fional afleflments were granted as the national emergencies
required. Thefe periodical afleflments, the fubfidies which
(18) No fubfidies were granted either by the laity or clergy
after 1663, 15 Car. II. c. 9, 10. The learned Judge has been
mifled by the title to the aft of the 22 & 23 Car. II. c. 3. in the
year 1670, when he declares it was the laft time of raifing fup-
plies by way of fubfidy ; for the title of it is, " An aft to grant a
" fubfidy to his- majefty for fupply of his extraordinary occafions."
But although, among a great variety of other taxes, is. in the
pound is to be raifed upon land, yet the mode of colle ding it is
totally different from the former fubfidy aflefTment : it is to be
levied by exaftly the fame plan and arrangements which were
afterwards adopted in the 4 W. & M. And according to the re-
gulations in the ftatute 4 W. & M. c. i. and the valuation of
eftates made at that time, the parliament every year at prefent
renews the grant of the land-tax, and orders it to be collected.
All the material claufes of the ftatute in the 22'& 23 Car. II.
are copied verbatim in that of the 4 W. & M. ; the aft of Charles
is not printed in the common editions of the Statutes at Large, but
it is given at length in Keble's edition. And even then this fcheme
of taxing landed property was not a novelty, for it was firft intro-
duced in the time of the commonwealth. The inftance of this
plan may be feen in an aft for an affeffment to raife 6o,ooo/. a
month in Scobell's Afts, 1656, c. 12.
To thofe who have leifure and opportunity, it might afford en-
tertainment to inquire what was the difference of the afleffments
returned into the exchequer in the years 1656, 1670, and 1692.
For befides the prefent difproportion in the afleffment neceffarily
'arifing from a more improved cultivation of land in fome counties,
it is commonly fuppofed that there was an original inequality in the
valuation of eftates, from the liberality or fraud of the owners and
afieffors in their reprefentations of the value, according to their
attachment or averfion to the new government.
preceded
Ch. 8. of PERSONS. 312
preceded them, -and the more antient fcutage, hydage, and
talliage, were to all intents and purpofes a land-tax ; and
the affeflments were fometimes exprefsly called fo p . Yet
a popular opinion has prevailed, that the land-tax was firft
introduced in the reign of king William III. ; becaufe in the
year 1692 a new aflefiment or valuation of eftates was made
throughout the kingdom : which, though by no means a
perfect: one, had this effect:, that a fupply of 500,0007. was
equal to is. in the pound of the value of the eftates
given in. And according to this enhanced valuation, from
the year 1693 to the prefent, a period of above fourfcore
years, the land-tax has continued an annual charge upon
the fubjecl: ; above half the time at 4^. in the pound, fome-
times at 3-r., fometimeS at 2/., twice q at I/., but without
any total intermiffion. The medium has been 3*. %d. in
the pound : being equivalent with twenty-three antient fub-
fidies, and amounting annually to more than a million and
a half of money. The method of raifing it is by charging r q i o l
a particular fum upon each county, according to the valua-
tion given in, A. D. 1692 : and this fum is aflefled and
raifed upon individuals (their perfonal eftates, as well as real,
being liable thereto) by commiffioners appointed in the act,
being the principal landholders of the county, and their
officers (19).
* Com. Journ. 26 Jun. 9 Dec. 1 la the years 1731 and 1733.
1678.
(19) By the ftatute 38 Geo. III. c. 60. the preamble of which
ftates, " that it may materially conduce to ftrengthening and
" fupporting the public credit, and to augmenting the nation's
" refources at this important conjuncture, that the duty now
" payable for one year on land Ihould be made perpetual, but
w fubject to redemption and purchafe, on transferring to the
" commiffioners for the reduction of the national debt a certain
" proportion of capital ftock, in manner therein ftated," it is
enacted that the land-tax mail be raifed and paid yearly to his
* majefty and his heirs for ever, fubject to redemption under cer-
Ee 2 tain
5 !3 The RIGHTS BOOK I.
II. THE other annual tax is the malt-tax , which is a
fum of 750,0007. raifed every year by parliament, ever fmce
1697, by a duty of 6d. in the buftiel on malt, and a pro-
portionable fum on certain liquors, fuch as cider and perry,
which might otherwife prevent the confumption of malt.
This is under the management of the commiflioners of the
excife ; and is indeed itfelf no other than an annual excife ;
the nature of which fpecies of taxation I {hall prefently ex-
plain 5 only premifing at prefent, that in the year 1760 an
additional perpetual excife of 3^. per bumel was laid upon
malt; to the produce of which a duty of 15 per cent., or
nearly an additional halfpenny per bumel, was added in
1779(20): and that in 1763 a proportionable excife was
laid in upon cider and perry, but fo new-modelled in 1766,
as fcarce to be worth colle&ing (21).
tain rules and conditions. This aft was afterwards amended by
feveral other afts, all of which were repealed, and the provifions
consolidated and amended by the ftatute 42 Geo. III. c. 116.
The confederation for redemption mall (generally fpeaking) be
fo much capital ftock of the three pounds per centum confolidated
annuities, or the three pounds per centum reduced annuities, as
will yield a dividend exceeding the amount of the land-tax re-
deemed by one-tenth part thereof. This ftock may be transferred
by the purchafer all at once, or by inftalments, and in certain
cafes the redemption may be made by payments in money.
The regulations of the ftatute are far too numerous to be far-
ther detailed in a note.
(20) And in the next year a further additional duty of 6d. a
bumel was laid upon malt. But by the confolidation aft, 27 Geo.
III. c. 13. thefe duties are repealed ; and in lieu of them Q\d.
is laid upon every bumel of malt in England, and half as much in
Scotland. Sir John Sinclair itates, that from Michaelmas 1787 to
Michaelmas 1788, the net produce of the perpetual excife upon
malt was 724,7867. ; the annual excife 603, 3 177. ; the duties upon
beer, 1,666,1527. ; upon Britifh fpirits, 509,1677. ; fo that barley
yielded a clear revenue of 3,503,4227. 3 Sine. 125.
(21) Though the land-tax is fuppofed and ftated in the annual
aft, to raife, at 4*. in the pound, an income of 1,989,6737. 7*. io|</.
for
Ch. 8. /PERSONS, 313
THE perpetual taxes are,
I. THE cuftoms; or the duties, toll, tribute, or tariff, pay-
able upon merchandize exported and imported. The confi-
derations upon which this revenue (or the more antient part
of it, which arofe only from exports) was inverted in the
king, were faid to be two r ; i. Becaufe he gave the fubjedt
leave to depart the kingdom, and to carry his goods along with
him. 2. Becaufe the king was bound of common right to
maintain and keep up the ports and havens, and to protect
the merchant from pirates. Some have imagined they are
called with us cuftoms, becaufe they were the inheritance of
the king by immemorial ufage and the common law, and not
granted him by any ftatute 8 : but fir Edward Coke hath
clearly {hewn *, that the king's firfl claim to them was by C 3 J 4 3
grant of parliament 3 Edw. I. though the record thereof is not
now extant (22). And indeed this is in exprefs words con-
* Dyer. 165, * * Inft. j8, 59.
Dyer.
for England ; and 47,9547. is. id. for Scotland : making in all,
2,037,6277. 9-r. o^d. ; yet fir John Sinclair {hews, with great ap-
pearance of accuracy, that it is fo uniformly deficient, that, upon
an average, the whole amount ought not to be eftimated at more
than 1,900,0007. ; and that the annual malt-tax after two very fa-
vourable years, ending at Michaelmas 1788, did not average more
than 6oo,ooo7. 3 Part, 108. 117.
(22) Sir Edward Coke cites a letter patent of Edw. I. in which
the king recites, that the parliament had granted to him and his
heirs qutedam nova confuetudo upon wool, fkins, and leather : but
that merchants paid duties and cuftoms long before, appears from
the memorable claufe in magna charta, upon which fir Edward
Coke is there commenting : that claufe provides, that all mer-
chants {hall have fafe-condud throughout England, ad emendum &
vendendum Jlne omnibus malls tolnetis, per antiquas & reffas confuetu-
dlnes: and he fays, thefe are fubfidies or cuftoms granted by com-
E e 3 mon
314 The RIGHTS BOOK. I.
fefled by ftatute 25 Edw.I. c. 7. wherein the king promifes
to take no cuftoms from merchants without the common
aflent of the realm, " faving to us, and our heirs, the cuftoms
" on wool, fkins, and leather, formerly granted to us by the
" commonalty aforefaid." Thefe were formerly called the
hereditary cuftoms of the crown; and were due on the ex-
portation only of the faid three commodities, and of none
other : which were ftyled thejtap/e commodities of the king-
dom, becaufe they were obliged to be brought to thofe ports
where the king's ftaple was eftablimed, in order to be there
firft rated, and then exported u. They were denominated,
in the barbarous Latin of our antient records, cujluma v ;
not confuetudincsy which is the language of our law when-
M Dav. 9. and owes it's own etymology to the
This appellation feems to be de- word coufl, which fignifies price, charge,
rived from the French word confu m, or or, as we have adopted it in Englifli,
touluat, which fignifies toll or tribute, (ofl.
mon confent/ro bono publtco. ^ Injl. 58. They feem to have been
called cuftoms, from having been paid from time immemorial ; and
a memorable ftatute in the 21 Edw. I. c. 5. makes that diftinc-
tion. It ftates, that feveral people are apprehenfive that the aids,
talks, and prizes, which they had granted for the king's wars and
other occafions, might be turned upon them and their heirs (en
fervage) into an al of flavery : the king therefore declares and
grants, that he will not draw fuch temporary aids and taxes into
a cujlom.
This is a ftriking and a noble inftance of a jealous fpirit of
liberty in our anceftors, and that they were anxious to preferve
thofe rights which by magna cbarta they had fuccefsfully vin-
dicated.
Lord Coke, both in 2 Inft. 58. and in 4 Inft. 29, 30. (hews,
from the authorities he cites, that cuftoms or duties were called in
old legal Latin cujluma and confuetudmes indifcriminately. But he
feems very defirous of inculcating the doctrine, that all cuftoms or
duties owe their origin to the authority of parliament : a do&rine
which, both before and after his time, the crown was inclined to
controvert.
ever
Ch.8. of PERSONS. 314
ever it means merely ufages. The duties on wool, (heep-
flcins, or woolfells, and leather, exported, were called cuftuma
antiquajtve tnagna : and were payable by every merchant, as
well native as ftranger ; with this difference, that merchant -
flrangers paid an additional toll, viz. half as much again as
was paid by natives. The cuftuma parva et nova were an
impoft of 3</. in the pound, due from merchant-ftrangers only,
for all commodities as well imported as exported ; which was
ufually called the alien's duty, and was firft granted in
3 1 Edw. I. w But thefe antient hereditary cuftoms, efpe-
cially thofe on wool and woolfells, came to be of little account,
when the nation became fenfible of the advantages of a home
manufacture, and prohibited the exportation of wool by
ftatute ii Edw. III. c. I.
THERE is alfo another very antient hereditary duty be-
longing to the crown, called the prifage or butlerage of wines ;
which is confiderably older than the cuftoms, being taken
notice of in the great roll of the exchequer, 8 Ric. I. ftill
extant*. Prifage was a right of taking two tons of wine C 3 T 5
from every (hip (Englifh or foreign) importing into Eng-
land twenty tons or more, one before and one behind the
maft ; which by charter of Edward I. was exchanged into
a duty of is. for every ton imported by merchant-ftran-
gers, and called butlerage, becaufe paid to the king's
butler y.
OTHER cuftoms payable upon exports and imports were
diftinguilhed into fubfidies, tonnage, poundage, and other
imports. Subfidies were fuch as were impofed by parliament
upon any of the ftaple commodities before mentioned, over
and above the cuftuma antiqua et tnagna : tonnage was a duty
upon all wines imported, over and above the prifage and but-
lerage aforefaid : poundage was a duty impofed ad valorem,
at the rate of 1 2d. in the pound, on all other merchandize
w 4 Inft. 29. y Dav. 8. 2 Bulftr. 254. Stat. Eftr.
x Madox. hift. exch. 526. 532. 16 Edvr. II. Cora. Journ. 27 Apr."i689.
E e 4 what-
315 The RIGHTS BOOK!.
whatfoever ; and the other impofts were fuch as were occa-
fionally laid on by parliament, as circumftances and times
required z . Thefe diftinctions are now in a manner forgotten,
except by the officers immediately concerned in this depart-
ment ; their produce being in effect all blended together,
under the one denomination of the cuftoms.
BY thefe we underftand, at prefent, a duty or fubfidy paid
by the merchant, at the quay, upon all imported as well as
exported commodities, by authority of parliament ; unlefs
where, for particular national reafons, certain rewards, boun-
ties, or drawbacks, are allowed for particular exports or im-
ports. Thofe of tonnage and poundage/ in particular, were at
firft granted, as theoldftatutes (and particularly i Eliz. c. 19.)
exprefs it, for the defence of the realm, and the keeping and
fafeguard of the feas, and for the intercourfe of merchandize
fafely to come into and pafs out of the fame. They were at
firft ufually granted only for a ftated term of years, as, for two
years in 5 Ric. II. a ; but in Henry the fixth's time, they were
granted him for life by a ftatute in the thirty-firft year of his
reign: and again to Edward IV., for the term of his life alfo :
fince which time they were regularly granted to all his fuc-
cefibrs for life, fometimes at the firft, fometimes at other fub-
[ 316 ] fequent parliaments, till the reign of Charles the firft; when,
as the noble hiftorian exprefies it b , his minifters were not fuf-
ficiently felicitous for a renewal of his legal grant. And yet
thefe impofts were imprudently and unconstitutionally levied
and taken, without confent of parliament, for fifteen years
together; which was one of the caufes of thofe unhappy dif-
contents, juftifiable at firft in too many inftances, but which
degenerated at laft into caufelefs rebellion and murder. For,
as in every other, fo in this particular cafe, the king (previous
to the commencement of hoftilities) gave the nation ample
fatisfaclion for the errors of his former conduct, by pafiing
an act c , whereby he renounced all power in the crown of levy-
ing the duty of tonnage and poundage, without the exprefs
confent of parliament; and alfo all power of impofition upon
* Dav. ii, iJ, Dav, in. b Hift. Rebell. l>. 3. c 16 Car. I. c. 8.
any
Ch. 8. of PERSONS. 316
any merchandizes whatever. Upon the federation this duty
was granted to king Charles the fecond for life, and fo it was
to his two immediate fucceflbrs ; but now by three feveral
ftatutes, 9 Ann. c. 6. i Geo. I. c. 12. and 3 Geo. I. c. 7. it is
made perpetual, and mortgaged for the debt of the public. The
cuftoms thus impofed by parliament are chiefly contained in
two books of rates, fet forth by parliamentary authority d ; one
figned by firHarbottle Grimfton, fpeaker of the houfe of com-
mons in Charles the fecond's time ; and the other an additional
one figned by fir Spencer Compton, fpeaker in the reign of
George the firft ; to which alfo fubfequent additions have been
made (23). Aliens pay a larger proportion than natural fub-
d Stat. I z Cr. II. c. 4. 1 1 Geo. I. c. 7.
(23) In the year 1787, by the 27 Geo. III. c. 13. called the
consolidation aft, all the former ftatutes impofing duties of cuf-
toms and excife were repealed with regard to the quantum of the
duty ; and the two books of rates mentioned by the learned Judge
were declared to be of no avail for the future ; but all the former
duties were confolidated, and were ordered to be paid according to
a new book of rates annexed to that ftatute. Before this aft was
pafi~ed, it could not be fuppofed that many perfons, befide ex-
cifemen and cuftom-houfe officers, could be acquainted with the
duties payable upon the different articles of commerce. Sir John
Sinclair fays, that French wine was liable to fifteen, and French
paper to fourteen, different duties, which, of courfe, lay widely
difperfed in fo many afts of parliament. But now by this ex-
cellent improvement, we can immediately find the duty upon the
importation or exportation of any article ; or what excife duty
any commodity is fubjeft to, in an alphabetical table. Bullion,
wool, and fome few other commodities, may be imported duty
free. All the articles enumerated in the tables or book of rates
pay upon importation or exportation the fum therein fpecified,
according to their weight, number, or meafure. And all other
goods and merchandize, not being particularly enumerated or de-
fcribed, and permitted to be imported and ufed in Great Britain,
mail pay upon importation 27/. IO.T. per cent, ad valorem, or for
every ioo/. of the value thereof; but fubjeft to a drawback of
25/. per cent, upon exportation. Very few commodities pay a duty
upon
316 The RIGHTS BOOK!.
jecTts, which is what is now generally underftood by the
alien's duty ; to be exempted from which is one principal
caufe of the frequent application to parliament for a&s of
naturalization (24).
upon exportation ; but where that duty is not fpecified in the
tables, and the exportation is not prohibited, all articles may be
exported without payment of duty, provided they are regularly
entered and fhipped ; but on failure thereof they are fubjeft to a
duty of 5/. ids. per cent, ad valorem* And to prevent frauds in
the reprefentation of the value, a very fimple and equitable re-
gulation is prefcribed by the aft, viz. the proprietor mall himfelf
declare the value, and if this mould appear not to be a fair and
true eftimate, the goods may be feized by the proper officer ; and
four of the commiffioners of the cuftoms may direft that the
owner mall be paid the price which he himfelf fixed upon them,
with an advance of ten per cent, befides all the duty which he may
have paid ; and they may then order the goods to be publicly fold,
and if they raife any fum beyond what was paid to the owner and
the fubfequent expences, one half of the overplus mail be paid to
the officer who made the feizure, and the other half to the public
revenue. This ftatute is of infinite confequence to the commercial
part of the world ; it has reduced an important fubjeft from a per-
fect chaos to fuch a plain and fimple form, as to induce every friend
to his country to wim that fimilar experiments were made upon
other confufed and entangled branches of our ftatute law.
By the 42 Geo. III. c. 43. additional duties are granted upon
goods imported and exported, and on the tonnage of mips, ac-
cording to a book of rates annexed to the ftatute.
By that ftatute Britifh goods, not fpecifically noticed, exported
to any place in Europe or within the Streights of Gibraltar, pay
lOf. per cent. ; exported to any other part of the world, (the Eaft
Indies excepted,) I per cent, ad valorem.
(24) By the 24 Geo. III. feu". 2. c. 16. it was enafted, that the
petty cuftom, or additional duty on all the goods of aliens or
ftrangers, mould ceafe, except thofe which had been granted to
the city of London. The city of London ftill retains a trifling
duty called fcavage on the goods of aliens. It is an odious and
impolitic tax ; and it would be honourable to the city of London
to adopt the liberality of the legiflature, and to relinquifh it.
THESE
Ch. 8. </ PERSONS. 31$
THESE cuftoms are then, we fee, a tax immediately paid by
the merchant, although ultimately by the confumer. And yet
thefe are the duties felt leaft by the people j and, if prudently
managed, the people hardly confider that they pay them at all.
For the merchant is eafy, being fenfible he does not pay them
for himfelf ; and the confumer, who really pays them, con-
founds them with the price of the commodity : in the fame r - -i
manner, as Tacitus obferves, that the emperor Nero gained the
reputation of abolifhing the tax of the fale of flaves, though
he only transferred it from the buyer to the feller ; fo that it
was, as he exprefles it, " remiffum magisfpecie t quam.vi; quia
" cum "uenditor pendere juberetur t In partem pretii emptoribtts
" accrefcebat e ." But this inconvenience attends it on the
other hand, that thefe impofls, if too heavy, are a check and
cramp upon trade ; and efpecially when the value of the com-
modity bears little or no proportion to the quantity of the duty
impofed. This in confequence gives rife alfo to fmuggling,
which then becomes a very lucrative employment : and it's
natural and moft reasonable punifhment, viz. confifcation of
the commodity, is in fuch cafes quite ineffectual j the intrinfic
value of the goods, which is all that the fmuggler has paid,
and therefore all that he can lofe, being very inconfiderable
when compared with his profpe6l of advantage in evading the
duty. Recourfe mufl therefore be. had to extraordinary
punifliments to prevent it ; perhaps even to capital ones :
which deftroys all proportion of punifhment f , and puts
murderers upon an equal footing with fuch as are really
guilty of no natural, but merely a pofitive, offence.
THERE is alfo another ill confequence attending high im-
pofts on merchandize, not frequently confidered, but indif-
putably certain i that the earlier any tax is laid on a commo-
dity, the heavier it falls upon the confumer in the end : for
every trader through whofe hands it paffes mufl have a pro-
fit, not only upon the raw material, and his own labour and
time in preparing it, but alfo upon the very tax itfelf, which
he advances to the government ; otherwife he lofes the ufe
and intereft of the money which he fo advnaces. To in-
e Hift. /, 13. f Monteiq. Sp. L, b. 13. c. 8.
fiance
317 The RIGHTS BOOK!,
ftance in the article of foreign paper. The merchant pays
a duty upon importation, which he does not receive again till
he fells the commodity, perhaps at the end of three months.
[ 318 ] He is therefore equally entitled to a profit upon that duty
which he pays at the cuftom-houfe, as to a profit upon the
original price which he pays to the manufacturer abroad ; and
confiders it accordingly in the price he demands of the fta-
tioner. When the ftationer fells it again, he requires a profit
of the printer or bookfeller upon the whole fum advanced by
him to the merchant ; and the bookfeller does not forget to
charge the full proportion to the ftudent or ultimate con-
fumer ; who therefore does not only pay the original duty,
but the profits of thefe three intermediate traders, who have
fucceffively advanced it for him. This might be carried
much farther in any mechanical, or more complicated,
branch of trade.
II. DIRECTLY oppofite in it's nature to this is the excife
duty ; which is an inland impofition, paid fometimes upon
the confumption of the commodity, or frequently upon the
retail fale, which is the laft ftage before the confumption.
This is doubtlefs, impartially fpeaking, the moft ccconomical
way of taxing the fubjeft : the charges of levying, collect-
ing, and managing the excife duties being confiderably lefs in
proportion than in other branches of the revenue (25). It alfo
renders the commodity cheaper to the confumer, than charg-
ing it with cuftoms to the fame amount would do ; for the
reafon juft now given, becaufe generally paid in a much later
ftage of it. But, at the fame time, the rigour and arbitrary
proceedings of excife laws feem hardly compatible with the
temper of a free nation, For the frauds that might be com-
(25) In the year 1796, the expence of collefting the cuftoms
was 8 1 per cent, nearly upon the net produce, the duties of excife
5J, ftamps 51, land-tax and afiefled taxes 3!, fait 7/5-, and that
the average expence of colle&ing the whole revenue was lefs than
6j. See the 4th report of the committee on finance, 1797, p. 6.
In the year ending 5 Jan. 1802, thefe proportions are fomething
different, fee p. 326. n. 37. in this volume, where the net produce
and the rate per centum of collecting are ftated at length.
mitted
Ch. 8. of PERSONS. 318
mitted in this branch of the revenue, unlefs a ftrift watch is
kept, make it neceflary, wherever it is eftabliftied, to give the
officers a power of entering and fearching the houfes of fuch
as deal in excifeable commodities, at any hour of the day, and
in many cafes, of the night likewife. And the proceedings
in. cafe of tranfgreffions are fo fummary and fudden, that a
man may be convicted in two days' time in the penalty of
many thoufand pounds by two commiflioners or juftices of
the peace ; to the total exclufion of the trial by jury, and dif-
regard of the common law (26). For which reafon, though lord
Clarendon tells us g , that to his knowledge the earl of Bedford [319]
(who was made lord treafurer by king Charles the firft, to
oblige his parliament) intended to have fet up the excife
in England, yet it never made a part in that unfortunate
prince's revenue ; being firft introduced on the model of the
Dutch prototype, by the parliament itfelf after it's rupture
with the crown. Yet fuch was the opinion of it's general
unpopularity, that when in 1642 " afperfions were caft by
" malignant perfons upon the houfe of commons, that they
" intended to introduce excifes, the houfe for it's vindication
" therein did declare, that thefe rumours were falfe and fcan-
" dalous ; and that their authors {hould be apprehended and
" brought to condign punifhment h ." However, it's original '
eftablifhment was in 1643, and its progrefs was gradual;
e Hift. b. 3. (Lond. 1659. fol.) informs us, that it
" Com. Journ. 8 Oft. 164*. was firft moved for, 28 Mar. 1643, by
1 The tranflator and continuator Mr. Prynne. And it appears from the
of Petavius's chronological hiftory journals of the commons, that on that
day
(26) See the jurifdiftion of the commiflioners and juftices of
the peace in cafes of excife in Burn's Juftice, title Excife. The
grievances of the excife perhaps exift more in apprehenfion than in
reality. Aftions and profecutions againft officers, commiflioners,
and juftices, for mifconduft in excife cafes, are very rarely heard of
in courts of law. It is certainly an evil that a fair dealer cannot
have the benefit of any fecret improvement in the management of
his trade or manufaaory ; yet perhaps it is more than an equivalent
to the public at large, that, by the furvey of the excife, the commo-
dity is preferved from many ihameful adulterations, as experience
has fully proved fince wine was made fubjed to the excife laws.
319 The RIGHTS BOOK!.
being at firft laid upon thofe perfons and commodities where
it was fuppofed the hardfhip would be leaft perceivable, viz.
the makers and vendors of beer, ale, cider, and perry k ; and
the royalifts at Oxford foon followed the example of their
brethren at Weftminfter by impofing a fimilar duty ; both
fides protefting that it (hould be continued no longer than to
the end of the war, and then be utterly abolifhed l . But the
parliament at Weftminfter foon after impofed it on flefh,
wine, tobacco, fugar, and fuch a multitude of other commo-
dities, that it might fairly be denominated general : in pur-
fuance of the plan laid down by Mr. Pymme (who feems to
have been the father of the excife) in his letter to fir John
Hotham m , fignifying, " that they had proceeded in the
" excife to many particulars, and intended to go on farther ;
** but that it would be neceflary to ufe the people to it by
C 320 ] " little and little." And afterwards, when the nation had
been accuftomed to it for a feries of years, the fucceeding
champions of liberty boldly and openly declared "the impoft
" of excife to be the moft eafy and indifferent levy that could
" be laid upon the people n :" and accordingly continued it
during the whole ufurpation. Upon king Charles's return,
it having then been long eftablifhed, and it's produce well
known, fome part of it was given to the crown in 1 2 Car. II.
by way of purchafe (as was before obferved) for the feodal
tenures and other oppreffive parts of the hereditary revenue.
But, from it's firft original to the prefent time, it's very name
has been odious to the people of England. It has neverthe-
lefs been impofed on abundance of other commodities in
the reigns of king William III. and every fucceeding prince,
day the houfe refolded itfelf into a fore a miftake of the printer for Mr.
committee to confider of railing mo- Pymme, who was intended for chan-
ney, in coufequence of which the ex- cellor of the exchequer under the earl
cife was afterwards voted. But Mr. of Bedford. Lord Clar. b. 7.
Prynne was not a member of parlia- k Com. Journ. 17 May 1643.
ment till 7 Nov. 1648; and publiflted ' Lord Clar. b. 7.
in 1654 " A proteftation againft the m 30 May 1643. Dugdale of the
M illegal, deteftable, and oft con- troubles, lao.
" demned tax and extortion of excife n Old. 14 Aug. 1649. c< 5> Scobek
* iu general," It is probably there- 72, Stat, i6j6, c. 10, Scebel, 453.
to
Ch. 8. of PERSONS. 320
to fupport the enormous expences occafioned by our wars on
the continent. Thus brandies and other fpirits are now ex-
cifed at the diftillery } printed filks and linens, at the printer's ;
ftarch and hair-powder, at the maker's ; gold and filver wire,
at the wire-drawer's ; plate in the hands of the vendor, who
pays yearly for a licenfe to fell it ; lands and goods fold by
auction, for which a pound-rate is payable to the auctioneer,
who alfo is charged with an annual duty for his licence ;
and coaches and other wheel-carriages, for which the occu-
pier is excifed, though not with the fame circumftances of
arbitrary ftrictnefs as in moft of the other inftances. To
thefe we may add coffee and tea, chocolate and cocoa pafte,
for which the duty is paid by the retailer ; all artificial wines,
commonly called fweets ; paper and pafteboard, firfl when
made, and again if ftained or printed ; malt, as before men-
tioned ; vinegars ; and the manufacture of glafs ; for all
which the duty is paid by the manufacturer ; hops, for which
the perfon that gathers them is anfwerable j candles and foap,
which are paid for at the maker's , malt liquors brewed for
fale, which are excifed at the brewery ; cider and perry,
at the vendor's ; and leather and fkins, at the tanner's : a
lift which no friend to his country would wifti to fee farther
increafed.
III. I PROCEED therefore" to a third duty, namely, that [ 321 ]
upon fait ; which is another diftinct branch of his majefty's
extraordinary revenue, and confifts in an excife of 3/. qd.
per bufhel impofed upon all fait, by feveral ftatutes of king
William and other fubfequent reigns. This is not generally
called an excife, becaufe under the management of different
commiffioners : but the commiffioners of the fait duties have
by ftatute i Ann. c. 21. the fame powers, and muft obferve
the fame regulations, as thofe of other excifes. This tax
had ufually been only temporary ; but by ftatute 26 Geo. II.
c. 3. was made perpetual (27).
(27) For particular regulations refpe&ing the duty on fait, fee
Burn's Juft. title xdfe 9 Salt.
IV. ANOTHER
32i The RIGHTS BOOK!.
IV. ANOTHER very confiderable branch of the revenue is
levied with greater cheerfulnefs, as, inftead of being a bur-
den, it is a manifeft advantage to the public. I mean the
poft-office, or duty for the carriage of letters. As we have
traced the original of the excife to the parliament of 1643, f
it is" but juftice to obferve that this ufeful invention owes it's
firft legiflative eftablUhment to the fame alTembly. It is true,
there exifted poftmaiiers in much earlier times : but I appre-
hend their bufmefs was confined to the furnifiiing of poft-
horfes to perfons who were defirous to travel expeditioufly,
and to the difpatching of extraordinary pacquets upon fpecial
occafions. King James I. originally ere&ed a poft-office
under the control of one Matthew de Quefter or de 1'Equefter,
for the conveyance of letters to and from foreign parts ;
which office was afterwards claimed by lord Stanhope , but
was confirmed and continued to William Frizell and Tho-
mas Witherings by king Charles I., A. D. 1632, for the
better accommodation of the Englifh merchants p . In 1635
the fame prince erected a letter-office for England and Scot-
land, under the direction of the fame Thomas Witherings,
and fettled certain rates of poftage q : but this extended only
to a few of the principal roads, the times of carriage were
uncertain, and the poftmafters on each road were required
[ 322 ] to furnifli the mail with horfes at the rate of i\d. a mile.
Witherings was fuperfeded, for abufes in the execution of
both his offices, in 1640 ; and they were fequeftered into the
hands of Philip Burlamachy, to be exercifed under the care
and overfight of the king's principal fecretary of ftate r . On
the breaking out of the civil war, great confufions and inter,
ruptions were neceflarily occafioned in the conduct of the
letter-office. And about that time the outline of the prefent
more extended and regular plan feems to have been conceived
by Mr. Edmond Prideaux, who was appointed attorney-
general to the commonwealth after the murder of king
Charles. He was chairman of a committee in 1642 for con-
Latch. Rep. 87. 1 Ibid. 6jO. 20 Rytn. 193.
P 19 Ryra. JFoeJ. j8j. r ao Rym. 429.
fidering
Ch, 8. of PERSONS* 322
fidering what rates Ihould be fet upon inland letters * ; and
afterwards appointed poft-mafter by an ordinance of both the
houfes *, in the execution of which office he firft eftablifhed
a weekly conveyance of letters into all parts of the nation n ;
thereby faving to the public the charge of maintaining poft-
mafters to the amount of 7ooo/. per annum. And, his own
emoluments being probably very confiderable, the common
council of London endeavoured to ereft another poft-office
in oppofition to his ; till checked by a refolution of the houfe
of commons w , declaring that the office of poft-mafter is and
ought to be in the fole power and difpofal of the parliament.
This office was afterwards farmed by one Manley in 1654 *.
But, in 1657, a regular poft-office was creeled by the autho-
rity of the protector and his parliament (28), upon nearly
the fame model as has been ever fmce adopted, and with the
fame rates of poftage as continued till the reign of queen
Anne ?. After the reftoration a fimilar office, with fome
improvements, was eftablifhed by ftatute 12 Car. II. c. 35.
but the rates of letters were altered, and fome farther regu-
lations added by the ftatutes 9 Ann. c. 10. 6Geo. I. c. 21
* Com. Journ. 28 Mar. 1642.
c Ibid. 7 Sept. 1644. r Com. Journ. 9 June 1657. Sco-
u Ibid, ai Mar. 1649. bell. 511.
w Ibid, a i Mar. 1649.
(28) The preamble of the ordinance ftates, that the eftablifhing
one general poft-office, befides the benefit to commerce, and the
convenience of conveying public difpatch.es, " will be the beft
" means to difcover and prevent many dangerous and wicked de-
" figns againft the commonwealth."
The policy of having the correfpondence of the kingdom under
the infpe&ion of government is ftill continued j for, by a warrant
from one of the principal fecretaries of ftate, letters may be de-
tained and opened ; but if any perfon (hall wilfully detain or open
a letter delivered to the poft-office without fuch authority, he Ihall
forfeit 20/. and be incapable of having any future employment in
the poft-office. ^Ann. c. 10. 40. But it has been decided, that
no perfon is fubject to this penalty but thofe who are employed in
the poft-office. 5 T. R. 101.
VOL. I. F f 26 Geo.
322 The RIGHTS BOOK I.
a6.Geo.II. c. 2. 5 Geo. III. c. 25. & 7 Geo. III. c. 50. and
penalties were enacted, in order to confine the carriage of
letters to the public office only, except in fome few cafes :
a provifion which is abfolutely neceflary ; for nothing but
J" 323 ] an exclusive right can fupport an office of this fort : many
rival independent offices would only ferve to ruin one an-
other. The privilege of letters coming free of poftage, to
and from members of parliament, was claimed by the houfe
of commons in 1660, when the firft legal fettlement of the
prefent poft-office was made 2 ; but afterwards dropped a upon
a private affurance from the crown that this privilege fliould
be allowed the members 1 " (29). And accordingly a warrant
was conftantly iflued to the poft-mafter general , directing
the allowance thereof to the extent of two ounces in weight ;
till at length it was exprefsly confirmed by ftatute 4 Geo. III.
C. 24. j which adds many new regulations, rendered neceflary
by the great abufes crept into the practice of franking (30) :
* Com. Journ. 17 Dec. 1660. \ b Ibid.. 16 Apr, 1735.
Ibid. 44 Dec. 1660. c Ibid. a6 Feb. 1734.
(29) The following account of it in the 23d vol. Parl. Hift.
p. 56. is curious, and proves what originally were the fentiments of
the two houfes refpe&ing this privilege. " Colonel Titus re-
" ported the bill for the fettlement of the poft-office, with the amend-
." ments : Sir Walter Carle delivered a provifo for the letters of all
** members of parliament to go free during their fitting : Sir
*' Heneage Finch faid, It was a poor mendicant provlfo, and below
" the honour of the houfe. Mr. Prynn fpoke alfo againft the pro-
" vifo : Mr. Bunkley, Mr. Bofcawen, Sir George Downing, and
" Serjeant Charlton, for it; the latter faying, The council's letters
" went free.' The queftion being called for, the Speaker, Sir
'* Harbottle Grimftone, was unwilling to put it ; faying, he iuas
" ajhamed of it ; neverthelefs the provifo was carried, and made
" part of the bill, which was ordered to be engrofied." This
provifo the lords difagreed to, and left it out of the bill ; and
the commons agreed to their amendment. 3 Half. 82.
(30) And that the great lofs to the public revenue by the exer-
cife of this privilege might be farther diminifhed, the 24 Geo. III.
feff. 2. c. 37. provides, that no letter (hall go free, unlefs the
member (hall write the whole of the fuperfcription ? and fhall add
his
Ch. 8. (/PERSONS. 323
whereby the annual amount of franked letters had gradually
increafed, from 23,600!. in the year 1715, to 170,700!. in
the year 1763 d . There cannot be devifed a more eligible
method than this, of raifing money upon the fubjeft ; for
therein both the government and the people find a mutual
benefit. The government acquires a large revenue, and
the people do their bufinefs with greater eafe, expedition,
and cheapnefs, than they would be able to do if no fuch tax
(and of courfe no fuch office) exifted (31).
d Com. Journ. 28 Mar. 1764.
his own name, and that of the pott-town from which the letter is
intended to be fent, and the day of the month in words at length,
befides the year, which may be in figures ; and unlefs the letter
fhall be put into the pott-office of the place, fo that it may be fent
on the day upon which it is dated. And no letter fhall go free
directed to a member of either houfe, unlefs it is directed to him
where he fhall actually be at the delivery thereof ; or to his re-
fidence in London, or to the lobby of his houfe of parliament.
And if any perfon fhall fraudulently counterfeit or alter fuch fu-
perfcription, he fhall be guilty of felony, and fhall be tranfported
for feven years. But, in cafe of bodily infirmity, a member may
authorife another perfon to write the fuperfcription.
By the 35 Geo. III. c. 53. the privilege of franking is ftill far-
ther reftrained. By that ftatute, no letter direded by or to any
member fhall go free, which fhall exceed one ounce in weight, nor
any letter directed by a member, unlefs he is within twenty miles
of the poft-town from which it is to be fent on the day, or the day
before the day, on which it is put into the pott-office. And no
member fhall fend more than ten, or receive more than fifteen let-
ters in one day, free from poftage. Single letters fent and received
by the non-commifiioned officers and private men ia the navy and
army, under certain reftrictions, fhall be fubjedonly to the poftage
of one penny each. By 42 Geo. III. c. 63. thefe ads are ex-
tended to the members of the united kingdom. It has been de-
cided that under thefe ftatutes a Roman Catholic. peer is not entitled
to fend or receive letters free from poftage. Lord Petre v. Lord
Auckland, poft-mafter-general. 2 Bof. & Pull. 139.
(31 ) It was determined fo long ago as the 13 W. III. by three
pf the judges of the court of King's Bench, though contrary to
Ff 2 the
The RIGHTS BOOK I.
V. A FIFTH branch of the perpetual revenue confifts in
the ftamp-duties, which are a tax impofed upon all parch-
ment and paper, whereon any legal proceedings, orfprivate
inftruments of almoft any nature whatfoever, are written; and
alfo upon licenfes for retailing wines, letting horfes to hire,
and for certain other purpofes: and upon all almanacks,
newfpapers, advertifements, cards, dice, and pamphlets
containing lefs than fix fheets of paper. Thefe impofts are
very various, according to the nature of the thing flamped,
the pertinacious opinion of lord C. J. Holt, that no action could
be maintained againft the poft-mafter-general, for the lofs of bills
or articles fent in letters by poft. I Ld. Raym. 646. Comynt,
loo, &c. A fimilar action was brought againft lord le Defpencer
and Mr. Carteret poft-mafter-general, in 1778, to recover a bank-
note of ioo/. which had been fent by the poft and was loft. Lord
Mansfield delivered the opinion of the court, and proved, with
much perfpicuity and ability, that there was no refemblance or
analogy between the poft-mafter and a mafter-carrier, and that
no action for any lofs in the poft-office could be brought againft
any perfon, except him by whofe actual negligence the lofs ac-
crued ; that this point feems as fully eftabliflied as if it had been
declared by the full authority of parliament. Cowp. 754.
For this reafon it is recommended, by the fecretary of the poft-
office, to cut bank-notes, and to fend one half at a time. This is
the only fafe mode of fending bank-notes, as the bank would
never pay the holder of that half which had been fraudulently
obtained.
Many attempts have been made by poft -matters in country
towns, to charge a halfpenny or a penny a letter upon delivery at
the houfes in the town above the parliamentary rates, under pre-
tence that they were not obliged to carry the letters out of the
office gratis ; but it has been repeatedly decided, that fuch a de-
mand is illegal, and that they are bound to deliver the letters to
the inhabitants within the ufual and eftablifhed limits of the town,
without any addition to the rate of poftage. 5 Burr. 2709. 2 Bl.
Rep. 906. Cotuf. 182.
rifing
Ch. 8. of PERSONS. 333
rifing regularly from a penny to ten pounds. This is alfo a
tax, which, though in fome inftances it may be heavily felt,
by greatly increafing the expence of all mercantile as well as
legal proceedings, yet (if moderately impofed) is of fervice
to the public in general, by authenticating inftruments, and [ 3 2 4 ]
rendering it much more difficult than formerly to forge deeds
of any (landing ; fince, as the officers of this branch of the
revenue vary their (lamps frequently, by marks perceptible to
none but themielves, a man that would forge a deed of king
William's time muft know and be able to counterfeit the
(lamp of that date alfo. In France and fome other countries
the duty is laid on the contrad"l itfeif, not on the inftrument
in which it is contained ; (as, with us too, befides the (lamps
on the indentures, a tax is laid by ftatute 8 Ann. c. 9. of 6d.
in the pound upon every apprentice-fee, if it be 507. or
under ; and is. in the pound, if it be a greater fum ;) but this
tends to draw the fubjeb into a thoufand nice difquifitions
and difputes concerning the nature of his contract, and
whether taxable or not ; in which the farmers of the revenue
are fure to have the advantage* (32). Our general method
anfwers the purpofes of the (late as well, and confults the
eafe of the fubjed much better. The firft inftitution of the
ftamp-duties was by ftatute 5 & 6 W. & M. c. 21. and
they have fince in many inftances been incrcafed to ten
times their original amount (33).
*Sp.of L.Miii.e.9.
( 32 ) It is confidered a rule of conftruftion of revenue afts, in
ambiguous cafes, to lean in favour of the revenue. This rule is
agreeable to good policy and the public interefts ; but, beyond
that, which may be regarded as eftablifhed law, no one can ever be
faid to have an undue advantage in our courts.
(33) And perhaps by ten different a&s of parliament. It is cer-
tainly true, that the items of feven different long ftatutes muft be
picked out and fummed up, to produce the prefent ftamp-duty
upon an indenture, leafe, or bond. One cannot but exprefs fur-
F f 3 prife,
324 The RIGHTS BOOK I.
VI. A SI!XTH branch is the duty upon houfes and win-
dows. As early as the conqueft mention is made in domef-
day book of fumage or fuage, vulgarly called fmoke farthings ;
which were paid by cuRom to the king for every chim-
ney, in the houfe. And we read that Edward the black
prince, (foon after his fuccefles in France,) in imitation of the
Englifh cuftom, impofed a tax of a florin upon every hearth
in his French dominions f . But the firft parliamentary efta-
blifhment of it in England was by ftatute 13 & 14 Car. II.
c. 10. whereby an hereditary revenue of 2s. for every hearth,
' Mod. Un. Hid. xxiii. 463. Spelm. Gloff". tit. Fuage.
prife, that each new ftamp-aft has not confolidated the duties im-
pofed upon the refpeftive articles by former ftatutes. When a
deed or inftrument is produced in court, no one can fay whether
it is duly ftamped or not, but by collecting together, with a great
probability of an error, all the duties which lie difperfed in the
various ftamp-afts prior to it's date.
If each ftamp-act declared the whole amount of the ftamp at the
time, it would prevent much confufion and vexation in a fubject
of the higheft importance. But till this plan is adopted by the
legiflature, Dr. 'Burn, in the title Stamps, will be our readieft if
not our fureft guide.
This note ftood in the three preceding editions ; and what was
recommended in it has been adopted by the legiflature in the
44 Geo. III. c. 98. which ftates in the preamble, that the " feveral
" rates and duties upon ftarnped vellum, parchment, and paper,
" are become very numerous, intricate, and complicated, and it
" will tend to give facility to bufmefs, and contribute materially
" to the public benefit, to confolidate and fimplify^the fame." It
therefore repeals all the former ftamp-acts, and enacts, that in fu-
ture, the duties upon ftamps fhall be paid according to the rates
fpecified in fchedules annexed to that ftatute.
And by the loth fection of that ftatute it is enacted that no
profecution fhall be commenced for any fine or penalty incurred by
non-payment of flamp-duties, unlefs it is commenced in the name
of the king's attorney-general in England, or the king's advocate
in Scotland, or fome officer of the {lamp-duties.
Ch. 8. of PERSONS. 324
in all houfes paying to church and poor, was granted to the /
king for ever. And, by fubfequent ftatutes for the more
regular afTeflment of this tax, the conftable and two other
fubftantial inhabitants of the parifh, to be appointed yearly,
(or the furveyor, appointed by the crown, together with
fuch conftable or other public officer,) were, once in every
year, empowered to view the infide of every houfe in the
parifh. But, upon the revolution, by ftatute I W. & M. ft. i.
c. 10. hearth-money was declared to be " not only a great
" oppreflion to the poorer fort, but a badge of flavery upon
(( the whole people, expofing every man's houfe to be en-
" tered into, and fearched at pleafure, by perfons unknown
" to him ; and therefore to erect: a lafting monument of
" their majefties goodnefs in every houfe in the kingdom,
" the duty of hearth-money was taken away and aboliftied."
This monument of goodnefs remains among us to this day :
but the profpect of it was fomewhat darkened, when in fix
years afterwards by ftatute 7 W. III. c. 18. a tax was laid
upon all houfes (except- cottages) of 2s. now advanced to 3/.
per annum, and a tax alfo upon all windows, if they exceeded
nine, in fuch houfe. Which rates have been from time to
time s varied, being now extended to all windows exceed-
ing fix j and power is given to furveyors, appointed by the
crown, to infpect the outfide of houfes, and alfo to pafs
through any houfe two days in the year, into any court or
yard, to infpect the windows there. A new duty from
6d. to is. in the pound was alfo impofed by ftatutes
18 Geo. III. c. 1 6. and 19 Geo. III. c. 59. on every dwell-
ing-houfe inhabited, together with the offices and gardens
therewith occupied: which duty, as well as the former,
is under the direction of the commiflioners of the land-
tax (34).
e Stat. ao Geo. II. c. 3. 31 Geo. II. c. aa. a Geo. III. c. 8. Geo. 3. c. 38.
(34) The tax upon windows has been much increafed by the
commutation aft, the 24 Geo. III. feff. 2. c. 38. and by the
Ff 4 37"
325 The RIGHTS BOOK I.
VII. THE feventh branch of the extraordinary perpetual
tevenue is a duty of 2is. per annum for every male fervant
retained or employed in the feveral capacities fpecifically
mentioned in the act of parliament, and which almoft
amount to an univerfality, except fuch as are employed in
hufbandry, trade, or manufactures. This was impofed by
ftatute 17 Geo. III. c. 39. amended by 19 Geo. III. c. 59.,
and is under the management of the commiflioners of the
land and window tax (35).
VIII. AN eighth branch is the duty arifing from licences
to hackney coaches and chairs in London, and the parts adja-
cent. In 1654 two hundred hackney coaches were allowed
within London, Weftminfter, and fix miles round, under the
direction of the court of aldermen h . By ftatute 13 & 14
Car. II. c. 2. four hundred were licenfed ; and the money
arifing thereby was applied to repairing the ftreets'. This
number was increafed to feven hundred by ftatute 5 W. &
M. c. 22. and the duties veiled in the crown: and by the
ftatute 9 Ann. c. 23. and other fubfequent ftatutes for their
government J, there are now a thoufand licenfed coaches
and four hundred chairs. This revenue is governed by
commiflioners of it's own, and is, in truth, a benefit to the
fubject ; as the expence of it is felt by no individual, and
[ 326 } it's neceflary regulations have eftablifhed a competent jurif-
diction, whereby a very refractory race of men may be kept
in fome tolerable order (36).
h Scobell.3i3. ^ Geo. III. c, 44, 10 Geo. III. c. 44.
1 Com. Journ. i4Feb. i66f. nGeo.lII.c. 24, z8.izGeo.HI. 0.49.
) 10 Ann. c. 19. ij8. taGeo. I. 0.15.
37 Geo. III. c. 105. befides a general addition of 20 per cent.
upon the grofs amount ; and alfo by 42 Geo. III. c. 34.
The laft rate at prefent upon houfes and windows is by the
48 Geo. III. c. 55.
(35) The tax upon fervants^at prefent is fettled by 48 Geo. HI.
c. 55 .
(36) In the year 1770 one thoufand hackney coaches were
licenfed, for each of which the proprietors paid a tax of jj. a
week ;
Ch. 8. of PERSONS. 326
IX. THE ninth and laft branch of the king's extraordinary
perpetual revenue is the duty upon offices and penfions ; con-
fiding in an annual payment of u. in the pound (over and
above all other duties k ) out of all falaries, fees, and perqui-
fites, of offices and penfions payable by the crown, exceeding
the value of ioo/. per annum. This highly popular taxation
was impofed by ftatute 3 1 Geo. II. c. 22. and is under the
direction of the commiffioners of the land-tax.
THE clear net produce of thefe feveral branches of the
revenue, after all charges of collecting and management
paid, amounts at prefent annually to about feven millions
and three quarters fterling ; befides more than two millions
and a quarter raifed by the land and malt tax (37). How
thefe immenfe fums are appropriated, is next to be confidered.
And this is, firft and principally, to the payment of the in-
tereft of the national debt.
IN order to take a clear and comprehenfive view of the na-
ture of this national debt, it muft firft be premifed, that after
k Previous to this, a deduction of million, which was raifed for dif-
6J. in the pound was charged on all charging the debts of the civil lift by
penfions and annuities, and all lala- ftatutes 7 Geo. I. ft. i.e. a;. 1 1 Geo. I.
ries, fees and wages of all offices of c. 17. and i a Geo. J. c. 2. This mil-
profit granted by or derived from the lion, being charged on this particular
crown ; in order to pay the intereft fund, is not confidered as any part of
at the rate of three per cent, on one the national debt.
week ; by the 24 Geo. III. feff. 2. c. 27. that duty was doubled ;
fo from this article, government derives a revenue of 26,ooo/. a
year. In confequence of fo great an increafe in the duty upon
them, the fares were altered by 26 Geo. III. c. 7. by which fta-
tute, explained by the 32 Geo. III. c. 47., the prefent fares were
eftablifhed. By the 42 Geo. III. c. 78., the number is increafed to
1 1 oo, fubjeft to the fame regulations. See Burn. tit. Hackney
Coaches. The laft ftatute to regulate this fubjeft is the 48 Geo. III.
c.8 7 .
(37) Since this was written by the author, that fum has been
immenfely augmented ; for the following Account is taken from
a ftatement of the ordinary revenues and extraordinary refources
conftituting the Public Income of Great Britain for the year end-
ing the ^th January 1 802, preferred to the houfe of commons.
HEADS
326
The RIGHTS
BOOK I.
the revolution, when our new connections with Europe
introduced a new fyftem of foreign politics, the expences of
HEADS
of
REVENUE.
Net Produce
applicable to
National Objedts,
and to Payments
into the
Exchequer.
Rate per Cent,
for which the
Net Produce
of the
Revenue
was collected.
ORDINARY REVENUES.
s. d.
/". f. d.
Cuftoms -
Excife (including Malt, annual)
Stamps -
Land and aflefled Taxes -
7,756,107 3 9 |
11,495,440 8 4$
3,036,856 17 i$
4,715,393 4 10$
6 13 o
5 18 ii
3 19 5
3 15 6
Poll-Office -
982,850 16 3
34 5 2
is. in the . on Penfions and Salaries -
45,8i5 15 10$
i i ii
6d. in the . on Penfions and Salaries -
43,297 6 6$
253
Hackney Coaches ...
10 i 5
Hawkers and Pedlars -
5,W 8 9 |
50 13 5
SMALL BRANCHES OF THE HEREDI-
TARY REVENUE.
Alienation Fines
6,209 o 8
Pod Fine -
2,535 10 6|
72 064 5 2 4:
Competitions - , .*
10 O
Proffers - '- - v'-
617 o 4
Crown Lands -
40,959 17 "I
EXTRAORDINARY RESOURCES.
Monies paid on Account oTf Intereft of
Loans raifed for the Service of Ireland
803,799 16 7
On Account of the Commiffioners ap-
pointed by Aft 35 Geo. III. for ifluing
Exchequer Bills
62,100 o o
'__
Fees of regulated Exchequer Offices
34,766 17 II
For Corn fold on Account of Govern-
ment -
32,000 o o
.
Other Monies paid to the Public
Impreft Money repaid fuudry public Ac-
4,272 7 3$
_ _.
countants - - - -
66,007 J 8 io|
* .
Lottery net Profit
187,229 6 i
__
Lottery Licences ...
5,79i 9 o
- _
Aid and Contributions
40,302 3 5
__ _
Arrears of Taxes collected under the
Aid and Contribution Aft -
87,635 8 2$
income Duty -
5,858,792 i 9^
Total, independent of the Loans
Loans paid into the Exchequer in the
35,410,476 10 7|
Year ending 5th January 1802
27,611,410 17 8
Grand Total -
63,021,887 8 3*
The total income of confolidated fund in the year ending
5th January 1808 was - > .: ^36,483,053
Total charge upon it was - - - 32*643,738
the
Ch. 8. of PERSONS. 326
the nation, not only in fettling the new eftablifhment, but in
maintaining long wars, as principals, on the continent for the
fecurity of the Dutch barrier, reducing the French monar-
chy, fettling the Spaniih fucceflion, fupporting the houfe of
Auftria, maintaining the liberties of the Germanic body, and
other purpofes, increafed to an unufual degree : infomuch
that it was not thought advifable to raife all the expences of
any one year by taxes to be levied within that year, left the
unaccuftomed weight of them mould create murmurs among
the people. It was therefore the policy of the times to anti-
cipate the revenues of their pofterity, by borrowing immenfe
fums for the current fervice of the ftate, and to lay no more
taxes upon the fubject than would fuffice to pay the annual
intereft of the fums fo borrowed : by this means converting
the principal debt into a new fpecies of property, transferable [ 327 ]
from one man to another, at any time and in any quantity.
A fyftem which feems to have had it's original in the ftate of
Florence, A.D. 1344: which government then owed about
6o,ooo/. fterling : and being unable to pay it, formed the
principal into, an aggregate fum, called metaphorically a
mount t or bank, the fhares whereof were transferable like our
flocks, with intereft at 5 per cent, the prices varying accord-
ing to the exigencies of the ftate '. This policy of the Eng-
lifh parliament laid the foundation of what is called the
national debt : for a few long annuities created in the reign
of Charles II. will hardly deferve that name. And the ex-
ample then fet has been fo clofely followed during the long
wars in the reign of queen Anne, and fince, that the capital
of the national debt (funded and unfunded) amounted at the
clofe of the feflion in June 1777, to about an hundred
and thirty-fix millions (38) : to pay the' intereft of which,
1 Pro temfore, pro ffe, fro commodo) Aretin. See Mod. Un. Hid. xxxvi.
minuitur forum prctium atquc augcfcit. II 6.
(38) The national debt in -1
1 755, previous to the French J- 72,289,000 ; Intereft 2,654,000
war, was - - - -J
In January I 77 6, before 1 T23 , 9 6 4 , OO o; ditto 4*11,000
the American war, it was j
In
327 T&* RIGHTS BOOK I.
together with certain annuities for lives and years, and
the charges of management (39), amounting annually to
upwards of four millions and three quarters, the extra-
ordinary revenue juft now enumerated (excepting only
the land-tax and annual malt-tax) are in the firft place
mortgaged, and made perpetual by parliament. Perpetual,
I fay j but ftill redeemable by the fame authority that im-
pofed them ; which, if it at any time can pay off the capi-
tal, will abolifh thofe taxes which are raifed to difcharge the
intereft.
BY this means the quantity of property in the kingdom is
greatly increafed in idea, compared with former times ; yet
if we coolly confider it, not at all increafed in reality. We
may boaft of large fortunes, and quantities of money in the
funds. But where does this money exift ? It exifts only in
name, in paper, in public faith, in parliamentary fecurity :
and that is undoubtedly fufficient for the creditors of the pub-
lic to rely on. But then what is the pledge which the public
faith has pawned for the fecurity of thefe debts ? The land,
the trade, and the perfonal induftry of the fubjet~l j from
In 1786, previous to which -^
the whole debt of the laft warS- 239,154,000; Intereft 9,275,000
was not funded, it was 3
See a brief Examination into the State of the Re-venue.
The public funded debt of Great Britain, on the ift of February
1808, was - 664,713,128
Redeemed by the commiffioners - - 127,937,102
Debt unredeemed the ift of February 1808 - 536,776,026
And the fum annually applicable to the reduction of the national
debt of Great Britain was - * ^9>3 12,392
See Finance Account for 1808. p. 310.
(39) The number of officers employed in colle&ing this vaft
revenue, fir John Sinclair eftimates at 12,500. 3 Part, 157.
In Frjmce the revenue officers amount to 250,000. Ib. 156.
which
Ch.8. of PERSONS. 327
which the money muft arife that fupplies the feveral taxes.
In thefe therefore, and thefe only, the property of the public
creditors does really and intrinfically exift : and of courfe the
land, the trade, and the perfonal induftry of individuals, are
diminifhed in their true value juft fo much as they are pledged
to anfwer. If A.'s income amounts to ioo/. per annum s and
he is fo far indebted to B., that he pays him 507. per annum
for his intereft j one half of the value of A.'s property is tranf-
ferred to B. the creditor. The creditor's property exifts in
the demand which he has upon the debtor, and no where
elfe ; and the debtor is only a truftee to his creditor for one
half of the value of his income. In fhort the property of a
creditor of the public confifts in a certain portion of the na-
tional taxes : by how much therefore he is the richer, by fo
much the nation, which pays thefe taxes, is the poorer (40).
(40) It is a very erroneous notion indeed to fuppofe that the
property of the kingdom is increafed by national debts, contract-
ed in confequence of the expenfes of war. On the contrary,
the principal of the debt is the exact amount of the property
which the nation has loft from it's capital for ever. The Ameri-
can war coft the nation 116 millions fterling, and the effect is pre-
cifely the fame as if fo much of its wealth and treafure in corn,
cattle, cloth, ammunition, coin, &c. had been collected together
and thrown into the fea, befides the lofs accruing from the deftruc-
tion of many of it's moft productive hands. When this property
is confumed, it never can be retrieved, though induftry and care
may acquire and accumulate new ftores. Such a fupply, by no
mode of taxation that has yet been devifed, could be collected at
once, without exhaufting the patience and endurance of the peo-
ple. But by the method of funding, the fubjects are induced to
fuppofe, that their fuffering confifts only in the payment of the
yearly intereft of this immenfe wafte. The ruin is completed be-
fore the intereft commences, for that is paid by the nation, to the
nation, and returns back to its former channel and circulation ;
like the balls in a tennis court, however they may be tofled from
one fide to the other, their fum and quantity, within the court,
continue the fame. The extravagance of individuals naturally
fuggefted
328 The RIGHTS BOOK!.
THE only advantage that can refult to a nation from pub-
lic debts, is the increafe of circulation by multiplying the
cafli of the kingdom, and creating a new fpecies of currency,
affignable at any time and in any quantity ; always there-
fore ready to be employed in any beneficial undertaking,
fuggefted the fyftem of funding the public debts. When a man
cannot fatisfy the immediate demands of his creditor, it is an obvious
expedient to give him a promiffory note to pay him at a future day,
with intereft for the time ; and if this is an affignable note, fo that
the creditor may be enabled to perfuade another to advance him
the principal and to ftand in his place, it is exactly fimilar to the debts
or fecurities of government, except that, in general, they are not
payable at any definite time. All debts, when no effe&s remain, both
in public and private, are certain evidence of the wafte and confump-
tionof fo much property, which nothing canreftore, though frugality
and induftry may alleviate the future confequences. When a debt
is contracted, a man is not richer for paying it ; if he owes one
hundred pounds, and pays intereft for it, he is in no degree richer
by calling in one hundred pounds from which he receives the fame
intereft, and therewith difcharges the debt ; but probably, if he
does fo, he will feel himfelf more comfortable and independent,
and will find his credit higher, if his occafions fhould oblige him to
borrow in future. So it is with governments ; when the debt is
contracted, and the money fpent, the mifchief is done ; the dif-
charge of the debt can add nothing (or little comparatively) im-
mediately to the ftock or capital of the nation. But yet thefe im-
portant confequences may be expe&ed from it ; viz. from the abo-
lition of taxes upon candles, foap, fait, beer, and upon a melancholy
catalogue of the neceflary articles of life, taxes which take from
thofe who have nothing to fpare, the price of labour would be
lowered, manufactures would flourifh with renewed vigour, the
minds of the people would be cheered, and the nation would again
have credit and fpirit to meet it's mod formidable enemies, and to.re-
pel and refent both injury and infult. All the nations of Europe
have learnt from fuch dear-bought experience, that poverty and
mifery are the inevitable confequences of war, as to give us reafon
to hope, that the lives and property of mankind will not, in future,
be diflipated with the profufion and wantonnefs of former times.
by
Ch. 8. of PERSONS. 328
by means of this it's transferable quality : and yet producing
fome profit even when it lies idle and unemployed. A certain
proportion of debt feems therefore to be highly ufeful to a
trading people : but what that proportion is, it is not for me
to determine. Thus much is indifputably certain, that the
prefent magnitude of our national incumbrances very far ex-
ceeds all calculations of commercial benefit, and is productive
of the greateft inconveniences. For, firft, the enormous taxes,
that are raifed upon the necefiaries of life for the payment of
the intereft of this debt, are a hurt both to trade and manu-
factures, by railing the price as well of the artificer's fubfift-
ence as of the raw material, and of courfe, in a much greater
proportion, the price of the commodity itfelf. Nay, the very
increafe of paper circulation itfelf, when extended beyond
what is requifite for commerce or foreign exchange, has a
natural tendency to increafe the price of provifions as well as
of all other merchandize. For, as it's effect is to multiply
the cam of the kingdom, and this to fuch an extent that much
muft remain unemployed, that cafh (which is the univerfal
meafure of the refpe&ive values of all other commodities) [ 329 ]
muft neceflarily fink in it's own value 1 ", and every thing grow
comparatively dearer. Secondly, if part of this debt be
owing to foreigners, either they draw out of the kingdom
annually a confiderable quantity of fpecie for the intereft ; or
elfe it is made an argument to grant them unreafonable pri-
vileges, in order to induce them to refide here. Thirdly, if
the whole be owing to fubjefts only, it is then charging the
active and induftrious fubjecl, who pays his {hare of the taxes,
to maintain the indolent and idle creditor who receives them.
Laftly, and principally, it weakens the internal ftrength of a
ftate, by anticipating thofe refources which mould be referved
to defend it in cafe of neceflity (41). The intereft we now
to See page 276.
(41 ) The lafl is certainly a ferious and unanfwerable obje&ion
to the increafe of the national debt j but the three firft objedions
made
329 The RIGHTS BOOK I.
pay for our debts would be nearly fufficient to maintain any
\rar, that any national motives could require. And if our
anceftors in king William's time had annually paid, fo long
as their exigencies lafted, even a lefs fum than we now an-
nually raife upon their accounts, they would in the time of
war have borne no greater burdens, than they have bequeath-
ed to and fettled upon their pofterity in time of peace, and
might have been eafed the inftant the exigence was over.
made by the learned Judge do not feem to be very fatisfa&ory.
It is not clear that it is an evil, that things fhould grow nominally
dear in proportion to the increafe of fpecie, or the medium of com-
merce ; for they will ftill retain their relative, or comparative values
with each other. Dr. Adam Smith has ably fhewn the benefit
which a country derives, from fubftituting any cheap article for
gold and filver. The confequence is, that the precious metals do
not become of lefs value ; or if fo, it is but in a fmall degree ; but
they are carried to a foreign market, and bring back an increafe of
capital to the country. If one million pounds-worth of paper or
(hells would anfwer as well tA fettle accounts, go to market, and
would ferve all the purpofes of gold and filver, whilft thefe preferved
their price abroad ; and if the coin of this country, at prefent,
amount to 30 millions, we fliould gain what was equivalent to
29 millions by the fubftitution. But the paper fecurity, created
by the national debt, is little ufed in payments, or as a medium
of commerce, like bills of exchange.
As to the fecond objection, foreigners can only take away the
intereft of money which they have actually brought into the coun-
try, and which, it muft be prefumed, our merchants are deriving
as great a benefit from, and probably much greater.
With regard to the third objection, I cannot think it found dif-
cretion ever to raife an invidious diftinftion between thofe who
pay, and thofe who receive the taxes, and to treat the latter with
contempt. It cannot be fuppofed that property will ever be ac-
cumulated by idlenefs and indolence ; and he furely deferves the
beft of his country, who in difpofing of the fruits of his induftry,
prefers the funds to any other fecurity ; for without fuch confi-
dence, the nation would foon be reduced to a ftate of bankruptcy
and ruin,
THE
Ch. 8. of PERSONS. 329
THE refpective produces of the feveral taxes before men-
tioned were originally feparate and diftinc~l funds ; being fe-
curities for the fums advanced on each feveral tax, and for
them only. But at laft it became necefiary, in order to avoid
confufion, as they multiplied yearly, to reduce the number
of thefe feparate funds, by uniting and blending them toge-
ther ; fuperadding the faith of parliament for the general fe-
curity of the whole. So that there are now only three capi-
tal funds of any account, the aggregate fund, and the general
fund, fo called from fuch union and addition ; and the fouth
fea fund, being the produce of the taxes appropriated to pay
the interefl of fuch part of the national debt as was advanced
by that company and it's annuitants. Whereby the feparate
funds, which were thus united, are become mutual fecurities
for each other j and the whole produce of them, thus aggre-
gated, liable to pay fuch intereft or annuities as were for-
merly charged upon each diftinct fund; the faith of the 330 -j
legiflature being moreover engaged to fupply any cafual
deficiencies.
THE cuftoms,excifes, and other taxes, which are to fupport
thefe funds, depending on contingencies, upon exports, im-
ports, and confumptions, muft neceflarily be of a very uncer-
tain amount : but though fome of them have proved unpro-
ductive, and others deficient, the fum total hath always been
confiderably more than was fufficient to anfwer the charge
upon them. The furplufles therefore of the three great na-
tional funds, the aggregate, general, and fouth fea funds, over
and above the intereft and annuities charged upon them, are
directed by ftatute 3 Geo. I. c. 7. to be carried together, and
to attend the difpofition of parliament ; and are ufually de-
nominated the Jinking fund, becaufe originally deftined to fink
and lower the national debt. To this have been fince added
many other entire duties, granted in fubfequent years ; and
the annual intereft of the fums borrowed on their refpeclive
credits is charged on and payable out of the produce of the
finking fund. However, the neat furplufles and favings, after
all deductions paid, amount annually to a very confiderable
VOL. I. G g fum.
330 The RIGHTS BOOK I.
fum. For as the intereft on the national debt has been at
feveral times reduced, (by the confent of the proprietors, who
had their option either to lower their intereft or be paid their
principal,) the favings from the appropriated revenues came at
length to be extremely large. This finking fund is the lad
refort of the nation : it's only domeftic refource, on which
muft chiefly depend all the hopes we can entertain of
ever discharging or moderating our incumbrances. And
therefore the prudent and fteady application of the large
fums now arifing from this fund is a point of the ut-
moft importance, and well worthy the ferious attention of
parliament; which was thereby enabled, in the year 1765,
to reduce above two millions fterling of the public debt :
and feveral additional millions in feveral fucceeding
years (42).
(42) By the 26 Geo. III. c. 32. the parliament had the wif-
dom and firmnefs to veil unalienably in commifiioners the fum
of i ,ooo>ooo/. annually for the reduction of the national debt ;
in which aft every poffible precaution was taken that could be
devifed, for preventing this fund from being diverted at any fu-
ture time, and for carrying to the account of the commiffioners
for the purpofes of the aft the intereft of fuch ttock as mould
be purchafed, and fuch temporary annuities as mould fall in.
By that aft it was provided, that when the whole fum, including
the annual millions, mould amount to four millions, the dividends
mould no longer be paid upon the redeemed ttock, and that the
finking fund mould no longer accumulate.
By the 32 Geo. III. c. 55. it was direfted, that, when the
dividends amounted to 3,ooo,ooo/. exclufive of the annual grant,
there mould be no further accumulation.
And it was provided, that, upon all future loans which were
not to be paid off within 45 years, one per cent, mould be annually
appropriated for their reduction.
By the 33 Geo. III. c. 22. an additional grant of 2Oo,ooo/.
was made for the fame purpofe, which has fince been annually
renewed. '
The 42 Geo. III. c. 71. repeals fo much of the 26 Geo. III.
and 32 Geo. III. as fixed a limit to the accumulation of the fink-
ing
Ch. 8. of PERSONS. 330
BUT, before any part of the aggregate fund (the furplufles
whereof are one of the chief ingredients that form the (inking
fund) can be applied to diminifti the principal of the public [ 331 ~\
debt, it ftands mortgaged by parliament to raife an annual
fum for the maintenance of the king's houfehold and the civil
lift. For this purpofe, in the late reigns, the produce of cer-
tain branches of the excife and cuftoms, the pod-office, the
duty on wine licences, the revenues of the remaining crown
lands, the profits arifmg from courts of juftice,( which articles
include all hereditary revenues of the crown,) and alfo a
clear annuity of I2o,ooo/. in money, were fettled on the
king for life, for the fupport of his majefty's houfehold, and
the honour and dignity of the crown. And as the amount
of thefe feveral branches was uncertain, (though in the laft
reign they were computed to have fometimes raifed almoft a
million,) if they did not arife annually to 8oo,ooo/. the par-
liament engaged to make up the deficiency. But his prefent
majefty having, foon after his acceflion, fpontaneoufly figni-
fied his confent, that his own hereditary revenues might be fo
difpofed of as might beft conduce to the utility and fatisfac-
tion of the public ; and having gracioufly accepted the limited
fum of 8oo,ooo/. per annum for the fupport of his civil lift ;
the faid hereditary and other revenues were carried into and
made a part of the aggregate fund, and the aggregate fund
ing fund, and confolidates the funds provided by each aft, and
ftates that by the accumulation of that joint fund, the whole na-
tional debt may be redeemed in forty-five years.
The wifdom of keeping this fund inviolable is ftriking; for
during a peace it provides refources againft the periods of war
and difficulty, it fupports public credit by keeping the funds
fteady and uniform, and even in the times of the greateft depreffion
the country derives the benefit of the rapidity of their redemption.
On the i ft of February 1808, the commiuloners, by thefe funds,
had redeemed of the national debt - .127,937,102
And from the dividends and the annual allowance from the
ftatutes above referred to, they had an annual income for {he
further reduftion of ^93 1 2 39 2
G g 2 was
33'
The RIGHTS BOOK I,
was charged" with the payment of the whole annuity to the
crown of 8oo,ooo/. which, being found infufficient, was in-
creafed in 1777 to poo,ooo/. per annum. Hereby the reve-
nues themfelves, being put under the fame care and manage-
ment as the other branches of the public patrimony, produce
more and are better collected than heretofore ; and the public
is ftill a gainer of near ioo,ooo/. per annum by this difmte-
refted conduct of his majefty. The civil lift, thus liquidated,
together with the four millions and three quarters, intereftof
the national debt, and more than two millions produced from
the finking fund, make up the feven millions and three quarters
per annum t neat money, which were before dated to be the
annual produce of our perpetual taxes ; befides the immenfe,
though uncertain, fums arifing from the annual taxes on land
[ 33 2 1 an d malt, but which, at an average, may be calculated at more
than two millions and a quarter ; and, added to the preceding
fum, make the clear produce of the taxes (exclufive of the
charge of collecting) which are raifed yearly on the people of
this country, amount to about ten millions fterling (43).
THE expences defrayed by the civil lift are thofe that in
any fhape relate to civil government ; as the expences of the
royal houfehold ; the revenues allotted to the judges, pre-
vious to the year 1758 ; all falaries to officers of ftate, and
every of the king's fervants ; the appointments to foreign em-
bafladors ; the maintenance of the queen and royal family ;
the king's private expences, or privy purfe ; and other very
numerous outgoings, as fecret fervice money, penfions, and
other bounties : which fometimes have fo far exceeded the re-
venues appointed for that purpofe, that application has been
made to parliament to difcharge the debts contracted on the
civil lift ; as particularly in 1724, when one million was
granted for that purpofe by the ftatute 1 1 Geo. I. c. 16., and
Stat. i Geo. III. c. i. See page 326.
(43) See notes 37, 38, 39, to this chapter.
Ch. 8. of PERSONS. 332
in 1769 and 1777, when half a million and 6oo,ooo7. were
appropriated to the like ufes, by the ftatutes 9 Geo. III. c. 34.
and 17 Geo. III. 0.47.
THE civil lift is indeed properly the whole of the king's
revenue in his own diftinft capacity ; the reft being rather
the revenue of the public, or it's creditors, though collected
and diftributed again, in the name and by the officers of the
crown : it now {landing in the fame place as the hereditary
income did formerly ; and, as that has gradually diminifhed,
the parliamentary appointments have increafed. The whole
revenue of queen Elizabeth did not amount to more than
6oo,ooo7. a year ; that of king Charles I. was p 8oo,ooo/. (44)
and the revenue voted for king Charles II. was q i,2oo,ooo/.
though complaints were made (in the firft years at leaft) that
it did not amount to fo much r . But it muft be obferved,
that under thefe fums were included all manner of public
expences-, among which lord Clarendon in his fpeech to the
parliament computed, that the charge of the navy and land
forces amounted annually to 8oo,coo/. which was ten times
more than before the former troubles s . The fame revenue, [ 333 ]
fubjet to the fame charges, was fettled on king James 11.*}
but by the increafe of trade, and more frugal management,
it amounted on an average to a million and a half per annum,
(befides other additional cuftoms, granted by parliament u ,
which produced an annual revenue of 400,0007.) out of
which his fleet and army were maintained at the yearly ex-
pence of w i,ioo,ooo/. After the revolution, when the par-
liament took into it's own hands the annual fupport of the
" Lord Clar. continuation. 163. s Lord Clar. 165.
P Com. Jouru. 4 Sept. 1660. * Star, i Jac. II. c. i.
i Ibid. " Ibid. c. 3 fc 4.
r Ibid. 4 Jun. 1663. Lord Clar. ibid. w Com. Journ. i Mar. 20 M.ir. 1688.
(44) The revenue of the commonwealth was upwards of
i,500,ooo/. (Sine. H'tfl. Rev. 2 vol. xiv.) This is a ftriking in-
ilance to prove, that the burdens of the people are not neceflarily
lightened by a change in the government.
G g 3 forces
333 The RIGHTS BOOK I.
forces both maritime and military, a civil lift revenue was
fettled on the new king and queen, amounting, with the
hereditary duties, to 7oo,ooo/. per annum * ; and the fame
was continued to queen Anne and king George I. y That of
king George II. we have feen, was nominally augmented to z
8oo,ooo/. and in fat was confiderably more : and that of his
prefent majefty is avowedly increafed to the limited fum of
<poo,ooo/. And upon the whole it is doubtlefs much better
for the crown, and alfo for the people, to have the revenue
fettled upon the modern footing rather than the antient. For
the crown, becaufe it is more certain, and colle&ed with
greater eafe ; for the people, becaufe they are now delivered
from the feodal hardfhips and other odious branches of the
prerogative. And though complaints have fometimes been
made of the increafe of the civil lift, yet if we confider the
fums that have been formerly granted, the limited extent un-
der which it is now eftablifhed, the revenues and prerogatives
given up in lieu of it by the crown, the numerous branches
of the prefent royal family, and (above all) the diminution of
the value of money compared with what it was worth in the
laft century, we muft acknowledge thefe complaints to be
void of any rational foundation, and that it is impoffible to
fupport that dignity, which a king of Great Britain mould
maintain, with an income in any degree lefs than what is
now eftablifhed by parliament (45).
C 334 3 THIS finifhes our enquiries into the fifcal prerogatives of
the king; or his revenue, both ordinary and extraordinary.
We have therefore now chalked out all the principal outlines
of this vaft title of the law, the fuprcme executive magiftrate,
or the king's majefty, confidered in his feveral capacities and
points of view. But, before we entirely difmifs this fubjet, it
may not be improper to take a fhort comparative review of the
x Com. Journ. 14 Mar. 1701. z Stat. i Geo. II. c. I.
> llt'ul. 17 Mar. 1701. n Aug. 1714.
(45) The 44 Gco. III. c. 80. grants the king 6o,ooo/. a year
in addition to 9oo,ooc/.
power
Ch. 8. of PERSONS. 334
power of the executive magiftrate, or prerogative of the crown,
as it flood in former days, and as it ftands at prefent. And we
cannot but obferve, that moil of the laws for afcertaining,
limiting, and reftraining this prerogative have been madewith-
in the compafs of little more than a century paft j from the
petition of right in 3 Car. I. to the prefent time. So that the
powers of the crown are now to all appearance greatly cur-
tailed and diminiflied fince the reign of king James the firft :
particularly by the abolition of the Star-chamber and high
commiflion courts in the reign of Charles the firft, and by the
disclaiming of martial law, and the power of levying taxes on
the Subject by the fame prince : by the difufe of foreft laws
for a century paft j and by the many excellent provifions
enacted under Charles the fecond ; efpecially the abolition
of military tenures, purveyance and pre-emption ; the habeas
corpus aft ; and the aft to prevent the discontinuance of par-
liaments for above three years ; and, fince the revolution, by
the Strong and emphatical words in which our liberties aje
aflerted in the bill of rights, and at of Settlement ; by the ab
for triennial, fince turned into Septennial, elections ; by the
exclufion of certain officers from the houfe of commons ; by
rendering the feats of the judges permanent, and their Sala-
ries liberal and independent'; and by reftraining the king's
pardon from obstructing parliamentary impeachments. Be-
fides all this, if we confider how the crown is impoverished
and Stripped of all it's antient revenues, So that it muft greatly
rely on the liberality of parliament for it's necefiary fupport
and maintenance, we may perhaps be led to think, that the
balance is inclined pretty Strongly to the popular Scale, and
that the executive magiftrate has neither independence nor
power enough left to form that check upon the lords and com-
mons, which the founders of our constitution intended,
BUT, on the other hand, it is to be confidered, that every [ 335 ]
prince, in the firft parliament after his acceffion, has by long
ufage a truly royal addition to his hereditary revenue fettled
upon him for his life ; and has never any occafion to apply to
parliament for Supplies, but upon Some public neceffity oS the
whole realm. This reftores to him that constitutional inde-
G g 4 pendence,
335
The RIGHTS BOOK I.
pendence, which at his firft acceflion feems, it muft be owned,
to be wanting. And then, with regard to power, we may
find perhaps that the hands of government are at leaft fuffi-
ciently ftrengthened ; and that an Engliih monarchy is now
in no danger of being overborne by either the nobility or the
people. The inftruments of power are not perhaps fo open
and avowed as they formerly were, and therefore are the lefs
liable to jealous and invidious reflections ; but they are not
the weaker upon that account. In {hort, our national debt and
taxes (befides the inconveniences before mentioned) have alfo
in their natural confequences thrown fuch a weight of power
into the executive fcale.of government, as we cannot think
was intended by our patriot anceftors, who glorioufly ftrug-
gled for the abolition of the then formidable parts of the
prerogative, and by an unaccountable want of forefight efla-
, blifhed this fyftem in their (lead. The entire collection and
management of fo vaft a revenue, being placed in the hands
of the crown, have given rife to fuch a multitude of new
officers created by and removable at the royal pleafure, that
they have extended the influence of government to every
corner of the nation. Witnefs the commiffioners and the
multitude of dependants on the cuftoms, in every port of the
kingdom ; the commiflioners of excife, and their numerous
fubalterns, in every inland diftricl:; the poft-mafters, and their
fervants, planted in every town, and upon every public road ;
the commiflioners of the ftamps, and their diftributors, which
are full as fcattered and full as numerous; the officers of the
fait duty, which, though a fpecies of excife, and conducted
in the fame manner, are yet made a diftinct corps from the
ordinary managers of that revenue; the furveyorsof houfes and
windows; the receivers of the land-tax; the managers of lot-
teries; and the commiflioners of hackney-coaches ; all which
[ 336 ] are either mediately or immediately appointed by the crown,
and removable at pleafure without any reafon affigned : thefe,
it requires but little penetration to fee, muft give that
power, on which they depend for fubfiftence, an influence
moft amazingly extenfive. To this may be added the frequent
opportunities cf conferring particular obligations, by prefer-
Ch. 8. of PERSONS. 336
ence in loans, fubfcriptions, tickets, remittances, and other
money tranfations, which will greatly increafe this influence ;
and that over thofe perfons whofe attachment, on account of
their wealth, is frequently the moft defirable. All this is the
natural, though perhaps the unforefeen confequence of erect-
ing our funds of credit, and to fupport them eftablifhing our
prefent perpetual taxes : the whole of which is entirely new
lince the reftoration in 1660 , and by far the greateft part
fmce the revolution in 1688. And the fame may be faid with
regard to the officers in our numerous army, and the places
which the army has created. All which put together give
the executive power fo perfuafive an energy with refpedt to
the perfons themfelves, and fo prevailing an intereft with their
friends and families, as will amply make amends for the lofs
of external prerogative.
BUT, though this profufion of offices fhould have no effect
on individuals, there is ftill another newly-acquired branch
of power ; and that is, not the influence only, but the force of
a difciplined army : paid indeed ultimately by the people, but
immediately by the crown : raifed by the crown, officered by
the crown, commanded by the crown. They are kept on
foot, it is true, only from year to year, and that by the power
of parliament : but during that year they muft, by the nature
of our conftitution, if raifed at all, be at the abfolute difpofal
of the crown. And there need but few words to demonftrate
how great a truft is thereby repofed in the prince by his peo-
ple ; a truft that is more than equivalent to a thoufand little
troublefome prerogatives.
ADD to all this, that befides the civil lift, the immenfe
revenue of almoft feven millions fterling, which is annually
paid to the creditors of the public, or carried to the finking
fund, is firft depofited in the royal exchequer, and thence
ifiued out to the refpeftive offices of payment. This revenue [ 337 ]
the people can never refufe to raife, becaufe it was made perpe-
tual by adl of parliament : which alfo, when well confidered,
will appear to be a truft of great delicacy and high importance.
UPON
337 The RIGHTS BOOK I.
UPON the whole therefore I think it is clear, that, what-
ever may have become of the nominal, the real power of the
crown has not been too far weakened by any tranfaclions in
the laft century. Much is indeed given up ; but much is alfo
acquired. The flern commands of prerogative have yielded
to the milder voice of influence : the flavifh and exploded
do&rine of non-refiftance has given way to a military efta-
blifhment by law : and to the difufe of parliament has fuc-
ceeded a parliamentary truft of an immenfe perpetual revenue.
When, indeed, by the free operation of the finking fund,
our national debts ftiall be leflened ; (when the pofture of
foreign affairs, and the univerfal introduction of a well-
planned and national militia, will fuffer our formidable army
to be thinned and regulated ; and when in confequence of
all) our taxes mail be gradually reduced ; this adventitious
power of the crown will flowly and imperceptibly diminifh,
as it flowly and imperceptibly rofe. But till that fhall hap-
pen, it will be our efpecial duty, as good fubjets and good
Englifhmen, to reverence the crown, and yet guard againft
corrupt and fervile influence from thofe who are intrufted
with it's authority ; to be loyal, yet free ; obedient, and yet
independent ; and, above every thing, to hope that we may
long, very long, continue to be governed by a fovereign,
who, in all thofe public acts that have perfonally proceeded
from himfelf, hath manifefted the higheft veneration for the
free conftitution of Britain j hath already in more than one
inftance remarkably ftrengthened it's outworks ; and will
therefore never harbour a thought, or adopt a perfuafion, in
any the remoteft degree detrimental to public liberty.
Ch. 9. of PERSONS. 338
CHAPTER THE NINTH.
OF SUBORDINATE MAGISTRATES.
TN a former chapter of thefe Commentaries 3 we diftin-
guifhed magiftrates into two kinds ; fupreme, or thofe in
whom the fovereign power of the ftate refides j and fubor-
dinate, or thofe who act in an inferior fecondary fphere.
We have hitherto confidered the former kind only j namely,
the fupreme legiflative power or parliament, and the fupreme
executive power,' which is the king : and are now to proceed
to inquire into the rights and duties of the principal fubor-
dinate magiftrates.
AND herein we are not to inveftigate the powers and du-
ties of his majefty's great officers of ftate, the lord treafurer,
lord chamberlain, the principal fecretaries, or the like ; be-
caufe I do not know that they are in that capacity in any con-
fiderable degree the object of our laws, or have any very im-
portant (hare of magiftracy conferred upon them 5 except that
the fecretaries of ftate are allowed the power of commitment
in order to bring offenders to trial b . Neither fliall I here
treat of the office and authority of the lord chancellor, or
the other judges of the fuperior courts of juftice ; becaufe
they will find a more proper place in the third part of thefe
Commentaries . Nor (hall I enter into any minute difquifi tions,
* Ch. 2. page 146.
aLeou.i7j. Comb.i43. 5 Mod. 84. Salkj47. Carth.29i.
with
338 The RIGHTS BOOK I.
with regard to the rights and dignities of mayors and alder-
men, or other magiftrates of particular corporations : becaufe
C 339 ] thefe are mere private and ftridly municipal rights, depend-
ing entirely upon the domeftic conftitution of their refpec-
tive franchifes. But the magiftrates and officers, whofe rights
and duties it will be proper in this chapter to confider, are
fuch as are generally in ufe, and have a jurisdiction and
authority difperfedly throughout the kingdom : which are
principally fheriffs ; coroners ; juftices of the peace ; con-
ftables , furveyors of highways ; and overfeers of the poor ;
in treating of all which I mall enquire into, firft, their
antiquity and original ; next, the manner in which they are
appointed and may be removed j and laftly, their rights and
duties. And firft of fheriffs.
I. THE fherifF is an officer of very great antiquity in this
kingdom, his name being derived from two Saxon words,
rcijie jepejra, the reeve, bailiff or officer of the {hire. He
is called in Latin vice-comes, as being the deputy of the
earl or comes ; to whom the cuftody of the fhire is faid to
have been committed at the firft divifion of this kingdom into
counties. But the earls in procefs of time, by reafon of their
high employments and attendance on the king's perfon, not
being able to tranfaft the bufinefs of the county, were de-
livered of that burden : referving to themfelves the honour,
but the labour was laid on the fheriff. So that now
the fheriff does all the king's bufinefs in the county ; and
though he be ftill called vice-comes, yet he is entirely inde-
pendent of, and not fubjecl: to the earl ; the king by his let-
ters patent committing cujlodiam comitatus to the fheriff, and
him alone.
SHERIFFS were formerly chofen by the inhabitants of the
feveral counties. In confirmation of which it was ordained
by ftatute 28 Edw. I. c. 8. that the people mould have elec-
c Dalton of Ilierifts, c. I.
tion
Ch. 9. of PERSONS. 239
tion of fheriffs in every (hire, when the (hrievalty is not of
inheritance. For antiently in fome counties the {heriffs were
hereditary , as I apprehend they were in Scotland till the
ftatute 20 Geo. II. c. 43 ; and ftill continue in the county of
Weftmorland to this day (i) : the city of London having alfo [ 340 ]
the inheritance of the (hrievalty of Middlefex vefted in their
body by charter d (2). The reafon of thefe popular elections
is afligned in the fame ftatute, c. 13. " that the commons
" might chufe fuch as would not be a burden to them."
And herein appears plainly a flrong trace of the democrati-
cal part of our conftitution ; in which form of government
it is an indifpenfable requifite, that the people fhould chufe
their own magiftrates e . This election was in all probabi-
lity not absolutely vefted in the commons, but required the
royal approbation. For in ,the Gothic conftitution, the judges
of the county courts (which office is executed by our fheriff)
were elected by the people, but confirmed by the king :
and the form of their election was thus managed : the peo-
ple, or incolae territorii, chofe twelve electors, and they
nominated three perfons, ex quibtis rex unitm cotifirmnbat f .
d 3 Rep. 7Z. f Stiern. de jure Gotb. /. i. c . 3.
e Montefq. Sp. L. b. 2. c. I.
1 I ) The earl of Thanet is hereditary fheriff of Weftmorland.
This office may defcend to, and be executed by, a female ; for
" Ann countefs of Pembroke had the office of hereditary fheriff
" of Weftmorland, and exercifed it in perfon. At the affizcs at
" Appleby fhe fat with the judges on the bench." Harg. Co.
Lift. 326.
( 2 ) The election of the fheriffs of London and Middlefex was
granted to the citizens of London for ever in very ancient times,
upon condition of their paying 3OO/. a year to the king's exche-
quer. Jn confequence of this grant they have always elected two
fheriffs, though thefe conftitute together but one officer ; and if
one die, the other cannot act till another is elected. (4 Bac. Abr.
447.) In the year 1748, the corporation of London made a bye-
law, impofing a fine of 6oo/. upon every perfon who, being
elected, mould refufe to fervc the office of fheriff. See the cafe
of Evans, efq. and the chamberlain of London, ^ Burn. E. L. 185.
But
340 The RIGHTS BOOK I.
But with us in England thefe popular elections, growing
tumultuous, were put an end to by the ftatute 9 Edw. II.
ft. 2. which enacted, that the fheriffs ftiould from thenceforth
be afligned by the chancellor, treafurer, and the judges ; as
being perfons in whom the fame truft might with confidence
be repofed. By ftatutes 14 Edw. III. c. 7. 23 Hen. VI.
c. 8. and 21 Hen. VIII. c. 20. (3) the chancellor, treafurer,
prefident of the king's council, chief juftices, and chief
baron, are to make this election ; and that on the morrow of
All Souls in the exchequer. And the king's letters patent,
appointing the new fheriffs, ufed commonly to bear date
the fixth day of November 5 . The ftatute of Cambridge,
12 Ric. II. c. 2. ordains that the chancellor, treafurer, keeper
of the privy feal, fteward of the king's houfe, the king's
chamberlain, clerk of the rolls, the juftices of the one bench
and the other, barons of the exchequer, and all other that
fliall be called to ordain, name, or make juftices of the peace,
Jheriffs, and other officers of the king, fhall be fworn to aft
indifferently, and to appoint no man that fueth either privily
or openly to be put in office, but fuch only as they fhall
judge to be the beft and moft fufficient. And the cuftom
C 34 1 3 now K > ( an d nas been at leaft ever fince the time of Fortefcue h ,
who was chief juftice and chancellor to Henry the fixth,)
that all the judges, together with the other great officers and
privy counfellors, meet in the exchequer on the morrow of
All Souls yearly, (which day is now altered to the morrow of
St. Martin by the lad act for abbreviating Michaelmas term ;)
and then and there the judges propofe three perfons, to be
reported (if approved of) to the king, who afterwards appoints
one of them to be fheriff (4).
B Stat. iaEdw.IV. c.i. h DC LL. .24.
(3) This laft ftatute, as is obferved by Mr. Wooddefon, i vol.
89. feems quite to a different purpofe.
(4) The following is the prefent mode of nominating meriffs in
the exchequer on the morrow of St. Martin :
The chancellor, chancellor of the exchequer, th6 judges, and
feveral of the privy council affemble, and an officer of the court
9 admi-
Ch. 9. of PERSONS. 341
THIS cuftom of the twelve judges propofing three perfons,
feems borrowed from the Gothic conftitution before men-
tioned ; with this difference, that among the Goths the
twelve nominors were firft elected by the people themfelves-
And this ufage of ours, at it's firft introduction, I am apt to
believe was founded upon fome ftatute, though not now to
be found among our printed laws : firft, becaufe it is mate-
rially different from the direction of all the ftatutes before
mentioned : which it is hard to conceive that the judges would
have countenanced by their concurrence, or that Fortefcue
adminifters an oath to them in old French, that they will nominate
no one from favour, partiality, or any improper motive : this done,
the fame officer having the lift of the counties in alphabetical or-
der, and of thofe who were nominated the year preceding, reads
over the three names, and the laft of the three he pronounces to be
the prefent fheriff ; but where there has been a pocket meriff, he
reads the three names upon the lift, and then declares who is the
prefent ftieriff. If any of the miniftry or judges have an objection
to any perfon named in the lift, he then mentions it, and another
gentleman is nominated in his room ; if no objection be made,
fome one rifes and fays, " to the two gentlemen I know no ob-
" jection, and I recommend A. B. efq. in the room of the prefent
" meriff."
Another officer has a paper with a number of names given him
by the clerk of affize for each county, which paper generally
contains the names of the gentlemen upon the former lift, and alfo
of gentlemen who are likely to be nominated, and whilft the three
are nominated, he prefixes i, 2, or 3, to their names, according to
the order in which they are placed ; which, for greater certainty,
he afterwards reads over twice. Several obje&ions are made to
gentlemen, fome, perhaps, at their own requeft ; fuch as, that
they are abroad, that their eftates are fmall and incumbered, that
they have no equipage, that they are pradifing barrifters, or officers
in the militia, &c.
The new fheriff is generally appointed about the end of the fol-
lowing Hilary term ; this extenfion of the time was, probably, in
confequence. of the 17 Edw. IV. c. 7. which enables the old meriff
to hold his office over Michaelmas and Hilary terms.
would
341 The RIGHTS BOOK 1.
would have inferted in his book, unlefs by the authority of
fome ftatute ; and alfo becaufe a ftatute is exprefsly referred
to in the record, which fir Edward Coke tells us ; he tranfcribed
from the council-book of 3 March, 34 Hen. VI. and which is
in fubftance as follows (5). The king had of his own autho-
rity appointed a man (heriff of Lincolnfhire, which office he
refufed to take upon him : whereupon the opinions of the
judges were taken, what fliould be done in this behalf. And
the two chief juftices, fir John Fortefcue and fir John Prifot,
delivered the unanimous opinion of them all ; " that the
t( king did an error when he made a perfon fheriff, that was
" not chofen and prefented to him according to the Jlatute :
" that the perfon refufing was liable to no fine for difobe-
" dience, as if he had been one of the three perfons chofen
" according to the tenor of thejfatute ; that they would advife
" the king to have recourfe to the three perfons that were
" chofen according to the Jlatute : or that fome other thrifty
I a Jnft.55p.
(5) I am inclined to difagree with the learned judge's conjec-
ture, that the prefent practice originated from a ftatute which
cannot now be found ; becaufe, if fuch a ftatute ever exifted, it
muft have been pafied between the date of this record, the
34 Hen. VI. and the ftatute 23 Hen. VI. c. 8. referred to by the
learned commentator in the preceding page ; for that ftatute recites
and ratifies the 14 Edw. III. c. 7. which provides only for the no-
mination of one perfon to fill the office when vacant : yet the for-
mer ftatute 9 Edw. II. ft. 2. leaves the number indefinite, viz.
meriffs (hall be afiigned by the chancellor, &c. and if fuch a ftatute
had pafled in the courfe of thofe eleven years, it is probable that
it would have been referred to by fubfequent ftatutes. I fhould
conceive that the practice originated from the confideration, that
as the king was to confirm the nomination by his patent, it was
more convenient and refpectful to prefent three to him than only
one ; and though this proceeding did not exactly correfpond with
the directions of the ftatute, yet it was not contrary to it's fpirit,
or. in ftrictnefs to it's letter ; and therefore the judges might per-
haps think themfelves warranted in faying that the three perfons
were chofen according to the tenor of the ftatute.
II " man
Ch. 9. of PERSONS. 341
man be intreated to occupy the office for this year ; and
" that, the next year, to efchew fuch inconveniences, the
" order of thejlatute in this behalf made be obferved." But
notwithftanding this unanimous refolution of all the judges [ 342 ]
of England, thus entered in the council book, and the ftatute
34 & 35 Hen. VIII. c. 26. 61. which exprefsly recognizes
this to be the law of the land, fome of our writers ' have
affirmed, that the king, by his prerogative, may name whom
he pleafes to be fheriff, whether chofen by the judges or no.
This is grounded on a very particular cafe in the fifth year
of queen Elizabeth, when, by reafon of the plague, there
was no Michaelmas term kept at Weftminfter : ifo that the
judges could not meet there in craftino animarum to nominate
the meriffs : whereupon the queen named them herfelf, with-
out fuch previous aflembly, appointing for the moft part one
of the two remaining on the laft year's lift k . And this cafe,
thus circumftanced, is the only authority in our books for the
making thefe extraordinary meriffs. It is true, th^ reporter
adds, that it was held that the queen by her prerogative might
make a fheriff without the election of the judges, nonob/lante
aliquojlatuto in contrarium : but the dodtrine of non obftante's,
which fets the prerogative above the laws, was effe&ually
demolifhed by the bill of rights at the revolution, and abdi-
cated Weftminfter-hall when king James abdicated the king-
dom. However, it muft be acknowledged, that the practice
of occafionally naming what are called pocket-ftieriffs, by
the fole authority of the crown, hath uniformly continued
to the reign of his prefent majefty ; in which, I believe, few
(if any) compulfory inftances have occurred (6).
'Jenkins, 449. * Dyer, 5-
(6) When the king appoints a perfon fheriff, who is not one of
the three nominated in the exchequer, he is called a pocket-fhe-
riff. It is probable, that no compulfory inftance of the appointment
of a pocket-fheriff ever occurred ; and the unanimous opinion of
the judges, preferred in the record cited by the learned Commen-
tator from 2 Inft. 559. precludes the poflibility of fuch a cafe.
This is an ungracious prerogative ; and whenever it is exercifed,
unlefs the occafion is manifeft, the whole adminiftration of juftice
throughout one county for a twelvemonth, if not corrupted, is
VOL. I. H h certainly
342 The RIGHTS BOOK I.
SHERIFFS, by virtue of feveral old ftatutes, are to conti-
nue in their office no longer than one year : and yet it hath
been faid l that a (heriff may be appointed durante bene placito,
or during the king's pleafure ; and fo is the form of the royal
writ m . Therefore, till a new fheriff be named, his office
cannot be determined, unlefs by his own death, or the de-
mife of the king ; in which laft cafe it was ufual for the
fucceflbr to fend a new writ to the old fheriff" : but now by
ftatute i Ann. ft. i. c. 8. all officers appointed by the pre-
C 343 ] ceding king may hold their offices for fix months after the
king's demife, unlefs fooner difplaced by the fucceflbr. We
may farther obferve, that by ftatute i Ric. II. c. n. no man
that has ferved the office of fheriff for one year, can be com-
pelled to ferve the fame again within three years after (7).
WE fhall find it is of the utmoft importance to have the
fheriff appointed according to law, when we confider his
power and duty. Thefe are either as a judge, as the keeper
of the king's peace, as a minifterial officer of the fuperior
courts of juftice, or as the king's bailiff.
IN his judicial capacity he is to hear and determine all
caufes of forty {hillings value and under, in his county court,
of which more in it's proper place ; and he has alfo a judicial
power in divers other civil cafes . He is likewife to decide
the elections of knights of the {hire, (fubject to the control
of the houfe of commons,) of coroners, and of verderors ; to
judge of the qualification of voters, and to return fuch as
he {hall determine to be duly elected.
As the keeper of the king's peace, both by common law
and fpecial commiffion, he is the firft man in the county, and
1 4 Rep. 31. n Dalt. 7.
Dalt. of Sher'iffi, 8. Ibid. c. 4.
certainly fufpefted. The caufe ought to be urgent or inevitable,
when recourfe is had to this prerogative.
(7) If there be other fufficient within the county. Until a
different regulation was made by 8 Eliz. c. 1 6. in a great many
inftances two counties had one and the fame fheriff : this is ftill
the cafe in the counties of Cambridge and Huntingdon.
fuperior
Ch. 9. of PERSONS. 343
fuperior in rank to any nobleman therein, during his office P.
He may apprehend, and commit to prifon, all perfons who
break the peace, or attempt to break it ; and may bind any
one in a recognizance to keep the king's peace. He may, and
is bound ex officio to purfue, and take all traitors, murderers,
felons, and other mifdoers, and commit them to gaol for fafe
cuftody. He is alfo to defend his county againft any of the
king's enemies when they come into the land : and for this
purpofe, as well as for keeping the peace and purfuing felons,
he may command all the people of his county to attend him 5
which is called the pojfe comitatus, or power of the county q ;
and this fummons every perfon above fifteen years old, and
under the degree of a peer, is bound to attend upon warn-
ing r , under pain of fine and imprifonment s . But though the [ 344 ]
fheriff is thus the principal confervator of the peace in his
county, yet by the exprefs directions of the great charter l ,
he, together with the conftable, coroner, and certain other
officers of the king, are forbidden to hold any pleas of the
crown, or, in other words, to try any criminal offence. For
it would be highly unbecoming, that the executioners of juf-
tice mould be alfo the judges j mould impofe, as well as
levy, fines and amercements ; mould one day condemn a
man to death, and perfonally execute him the next. Neither
may he aft as an ordinary juftice of the peace during the
time of his office u : for this would be equally inconfiftent :
he being in many refpe&s the fervant of the jufticee,
IN his minifterial capacity the fheriff is bound to execute
all procefs iffuing from the king's courts of juftice. In the
commencement of civil caufes, he is to ferve the writ, to
arreft, and to take bail ; when the caufc comes to trial, he
muft fummon and return the jury; when it is determined,
he mud fee the judgment of the court carried into execution.
In criminal matters, he alfo arrefts and imprifons, he re-
turns the jury, he has the cuftody of the delinquent, and he
P i Roll. Rep. 237. ' Stat 4 Hen.V. c. 8.
1 Dale. c. 95, l fop. 17.
T Lamb. Eiren. 315. u Stzt. i Mar. ft. . c, 8.
H h 2 executes
344 The RIGHTS BOOK I.
executes the fentenceof the court, though it extend to death
itfelf.
As the king's bailiff, it is his bufmefs to preserve the rights
of the king within his bailiwick ; for fo his county is fre-
quently called in the writs; a word introduced by the princes
of the Norman line, in imitation of the French, whofe ter-
ritory is divided into bailiwicks, as that of England into coun-
ties w . He mud feife to the king's ufe all lands devolved
to the crown by attainder or efcheat ; muft levy all fines
and forfeitures ; muft feife and keep all waifs, wrecks,
eftrays, and the like, unlefs they be granted to fome fubjeft ;
and muft alfo collecl: the king's rents within the bailiwick,
if commanded by procefs from the exchequer *.
[ 345 ] To execute thefe various offices, the fheriff has under
him many inferior officers ; an under-fherifF, bailiffs, and
gaolers ; who muft neither buy, fell, nor farm their offices,
on forfeiture of 5007. y
THE under-ftieriff ufually performs all the duties of the
office ; a very few only excepted, where the perfonal pre-
fence of the high-flieriff is neceffary. But no under-fheriff
{hall abide in his office above one year z ; and if he does, by
ftatute 23 Hen. VI. c. 8. he forfeits aoo/., a very large pe-
nalty in thofe early days. And no under-fheriff or fherifPs
officer (hall praQife as an attorney, during the time he con-
tinues in fuch office a : for this would be a great inlet to par-
tiality and oppreffion. But thefe falutary regulations are
fhamefully evaded, by practifmg in the names of other at-
torneys, and putting in (ham deputies by way of nominal
under-fheriffs : by reafon of which, fays Dalton b , the under-
ftieriffs and bailiffs do grow fo cunning in their feveral places,
that they are able to deceive, and it may well be feared that
* Fortefc. de LL. c. 34. * Stat. 42 Edw. III. c. 9.
* Dalt. c. 9. * Stat. i Hen. V. c. 4.
r Stat. 3 Geo.I, c. t$. b Of Iheriffs, c. 115.
many
Ch. 9. of PERSONS. 345
many of them do deceive, both the king, the high-fheriff, and
the county.
BAILIFFS, or (heriff's officers, are either bailiffs of hun-
dreds, or fpecial bailiffs. Bailiffs of hundreds are officers
appointed over thofe refpeftive diftrifts by the iheriffs, to
collect fines therein, to fummon juries, to attend the judges
and juftices at the aflifes and quarter feffions, and alfo to
execute writs and procefs in the feveral hundreds. But, as
thefe are generally plain men, and not thoroughly fkilful in
this latter part of their office, that of ferving writs, and
making arrefts and executions, it is now ufual to join fpecial
bailiffs with them ; who are generally mean perfons, em-
ployed by the ftieriffs on account only of their adroitnefs and
dexterity in hunting and feifing their prey. The flieriff be- 346 }
ing anfwerable for the mifdemefnors of thefe bailiffs, they
are therefore ufually bound in an obligation with fureties for
the due execution of their office, and thence are called
bound-bailiffs ; which the common people have corrupted
into a much more homely appellation,
GAOLERS are alfo the fervants of the flieriff, and he muft
be refponfible for their conduct. Their bufinefs is to keep
fafely all fuch perfons as are committed to them by lawful
warrant : and, if they fuffer any fuch to efcape, the fherifF
fliall anfwer it to the king, if it be a criminal matter; or, in a
civil cafe, to the party injured c . And to this end the (heriff
muft d have lands fufficient within the county to anfwer the
king and his people (8). The abufes of gaolers and fherifPs
c Dalt. c. n8. 4 Rep. 34. c. 4. 4 Edw.III. 0.9. 5 Edw.III, 0.4.
" Stat. 9 Edw. II. ft. 3. a Edw.III. 13 & 14 Car.il. c.ai. 7.
(8) This is the only qualification required from a flieriff. That
it was the intention of our anceftors that the lands of a fheriff
fhould be confiderable, abundantly appears from their having this
provifion fo frequently repeated, and at the fame time that they
obtained a confirmation of magna charta and their moft valuable li-
berties. As the fherifF, both in criminal and civil cafes, may have
H h 3 the
346 The RIGHTS BOOK I.
officers, toward the unfortunate perfons in their cuftody, are
well reftrained and guarded againft by ftatute 32 Geo. II.
c. 28. ; and by ftatute 14 Geo. III. c. 59. provifions are made
for better preferving the health of prifoners, and preventing
the gaol diftemper (9).
THE vaft expence, which cuflom had introduced in ferv-
ing the office of high ftierifF, was grown fuch a burthen to
the fubjeft, that it was enacted, by ftatute 13 & 14 Car. II.
f. 21., that no fheriff (except of London, Weftmoreland, and
towns which are counties of themfelves,) (hould keep any
table at the affifes, except for his own family, or give any pre-
fents to the judges or their fervants, or have more than forty
men in livery : yet, for the fake of fafety and decency, he
may not have lefs than twenty men in England and twelve
in Wales} upon forfeiture, in any of thefe cafes, of 2oo/.
'tot '.:
II. THE coroner's is alfo a very antient office at the com-
mon law. He is called coroner, corenator, becaufe he hath
principally to do with pleas of the crown, or fuch wherein
the king is more immediately concerned 6 . And in this light
e a inft. 31. 4 inft. 171.
the cuftody of men of the greateft property in the country, his
own eftate ought certainly to be large, that he may be above all
temptation to permit them to efcape, or to join them in their
flight. In antient times this office was frequently executed by the
nobility and perfons of the higheft rank in the kingdom. Eligc-
bantur olim ad hoc qfficlum potentijjimi fapenumero totius regni proceres,
laronet, comites, duces, interdum et regumjUii. Spel. doff. Vicecom-
Bifhops alfo were not unfrequently fheriffs. Richard duke of
Glouceftor (afterwards Richard the third) was fheriffof Cumber-
land five years together. (Burn. Hift. Cumb. 570. ) It does not
appear that there is any exprefs law to exclude the nobility from
the execution of this office, though it has long been appropriated
to commoners.
(9) By ftatute 24 Geo. III. feff. 2. c. 54. fee. 22. no gaoler
is to fuffer tipling or gaming in the prifon, or to fell any liquors
thejrein, under the penalty of io/. to be recovered by diftrefs^upon
convi&ion.
the
Ch, 9, of PERSONS. 346
the lord chief juftice of the king's bench is the principal
coroner in the kingdom, and may (if he pleafes) exercife
the jurifdi&ion of a Coroner in any part of the realm f . But
there are alfo particular coroners for every county of Eng-
land j ufually four, but fometimes fix, and fometimes [ 347 ]]
fewer g . This officer 11 is of equal antiquity with the (heriff ;
and was ordained together with him to keep the peace, when
the earls gave up the ward (hip of the county.
HE is ftill chofen by all the freeholders in the county court ;
as by the policy of our antient laws the meriffs, and con-
fervators of the peace, and all other officers were, who were
concerned in matters that affedted the liberty of the people';
and as verderors of the foreft ftill are, whofe bufinefs it is to
ft and between the prerogative and the fubjeft in the execu-
tion of the foreft laws. For this purpofe there is a writ at
common law de coronatore eligendo k : in which it is exprefsly
commanded the fherifF, " quod talem ellgi faciat t qui melius
etfciat, et velit, et pojjtt y officio illi intendere." And, in or-
der to effect this the more furely, it was enacted by the fta-
tute 1 of Weft. i. that none but lawful and difcreet knights
fhould be chofen ; and there was an inftance in the 5 Edw.
III. of a man being removed from this office becaufe he was
only a merchant 1 " (10). But it feems it is now fufficient if a
f 4 Rep. 57. k F. N. B. 163.
F. N. B. 163. * 3 Edr. I. c. 10.
h Mirror, c. I. 3. m Inft. 3*.
1 ^ Inft. 558.
(10) That this was an office of high dignity in antient times,
appears from Chaucer's defcription of the Frankelin :
At feffions ther was he lord and fire,
Ful often time he was knight of the (hire,
A (hereve hadde ben, and a coronour,
Was no wher fwiche a worthy vavafour.
Selden, tit. hon. 2. c. 5. f. 4. obferves, that fome copies have
it coronour ; others countour. But the office of an accountant is
perfectly inconfiftent with the character defcribed, unlefs a coun-
tour fignified an efcheator.
H h 4 man
347 ^ RIGHTS BOOK I.
man hath lands enough to be made a knight (i i), whether he
be really knighted or not n : for the coroner ought to have an
eftate fufficient to maintain the dignity of his office, and
anfwer any fines that may be fet upon him for his mifbeha-
viour ; and if he hath not enough to anfwer, his fine {hall
be levied on the county, as the punifhment for electing an in-
fufficient officer p . Now, indeed, through the culpable ne-
glect of gentlemen of property, this office has been fuffered
to fall into difrepute, and get into low and indigent hands :
fo that, although formerly no coroners would condefcend
to be paid for ferving their country, and they were by the
[ 348 ] aforefaid ftatute of Weftm. i. exprefsly forbidden to take a
reward, under pain of a great forfeiture to the king ; yet for
many years paft they have only defired to be chofen for the
fake of their perquifites : being allowed fees for their at-
tendance by the ftatute 3 Hen. VI L c. i. which fir Edward
Coke complains of heavily q ; though fince his time thofe
fees have been much enlarged r .
THE coroner is chofen for life : but may be removed,
either by being made fheriff, or chofen verderor, which are
offices incompatible with the other j or by the king's writ
de coronatore exonerando, for a caufe to be therein affigned, as
that he is engaged in other bufinefs, is incapacitated by years
or ficknefs, hath not a fufficient eftate in the county, or lives
in an inconvenient part of it s . And by the ftatute 25 Geo. II.
c. 29. extortion, neglect, or miibehaviour, are alfo made
caufes of removal.
THE office and power of a coroner are alfo, like thofe of
the flierifF, either judicial or minifterial; but principally judi-
cial. This is in a great meafure afcertained by ftatute 4 Edw. I.
de officio coronatores ; and confifts, firft, in enquiring, when
any perfon is flain, or dies fuddenly, or in prifon, concerning
11 F. N. B. 163, 164. q a lift. aio.
o Rid. T Stat. 15 Geo. II. c. 29.
P Mirr. c. i. 3. a Inft. 175. F. N. B. 163, 164.
( 1 1 ) Which by ihejiatutum de militibus t I Edw. II., were lands
to the amount of 20/. per annum,
the
Ch.p. of PERSONS. 348
the manner of his death. And this muft be fuper vifum
tf corporis* :" for, if the body be not found, the coroner can-
not fit l . He muft alfo fit at the very place where the death
happened : and his inquiry is made by a jury from four, five,
or fix of the neighbouring towns, over whom he is to prefide.
If any be found guilty by this inqueft of murder or other
homicide, he is to commit them to prifon for farther trial, and
is alfo to inquire concerning their lands, goods, and chattels,
which are forfeited thereby : but, whether it be homicide or
not, he muft inquire whether any deodand has accrued to the
king, or the lord of the franchife, by this death : and muft
certify the whole of this inquifition, (under his own feal and [ 349 ]
the feals of his jurors u ,) together with the evidence thereon,
to the court of king's bench, or the next affifes (12). An-
other branch of his office is to inquire concerning ftiip wrecks;
and certify whether wreck or not, and who is in poffeflion of
the goods. Concerning treafure-trove, he is alfo to inquire
who were the finders, and where it is, and whether any one
be fufpe&ed of having found and concealed a treafure ; " and
" that may be well perceived, (faith the old ftatute of Edw.I.)
" where one liveth riotoufly, haunting taverns, and hath done
fo of long time ;" whereupon he might be attached, and
held to bail, upon this fufpicion only.
THE minifterial office of the coroner is only as the flierifPs
fubft itute. For when juft exception can be taken to the flieriff,
for fufpicion of partiality, (as that he is interefted inthefuit,
or of kindred to either plaintiff or defendant,) the procefs
muft then be awarded to the coroner, inftead of the meriff,
for execution of the king's writs w .
'4lnft. 171. " enlm bomo ttiam ex alia catifa fubito
'Thus, in the Gothic conftitution, " mart." Stieruhook de jure Gotbor.
before any fine was payable by the /. 3. c. 4.
neighbourhood, for the rtaughter of a u Sut. 33 Hen. VIII. c. ii. i& a
man therein, " de corf ore delial eonjlare P. & M. c. 13. Welt. Symbol. 310.
" opportebat ; i. e. non tamfui/e aliquem Crompt. 264. Tremain. P. C. 6ai,
' in territorio ifo mortuum iniientum W 4lnft.271.
" quam vulneratum et caefum. Petefl
(12) The coroner's inqueft muft be returned upon parchment,
or it cannot be received as a record. I have known a judge fine
a coroner for returning his inqueft upon paper.
III. THE
349 ^e RIGHTS BOOK I.
III. THE next fpecies of fubordinate magiftrates, whom
I am to confider, are juftices of the peace ; the principal of
whom is the cuftos rotulorum, or keeper of the records of the
county. The common law hath ever had a fpecial care and
regard for the confervation of the peace ; for peace is the
very end and foundation of civil fociety. And, therefore,
before the prefent conftitution of juftices was invented, there
were peculiar officers appointed by the common law for the
maintenance of the public peace. Of thefe fome had, and
ftill have, this power annexed to other offices which they
hold ; others had it merely by itfelf, and were thence named
cuflodes or confervatores pads. Thofe that were fo virtute
afficii ftill continue : but the latter fort are fuperfeded by the
modern juftices.
THE king's majefty w is, by his office and dignity royal,
the principal confervator of the peace within all his domi-
[ 350 ] nions ; and may give authority to any other to fee the peace
kept, and to punifh fuch as break it : hence it is ufually
called the king's peace. The lord chancellor or keeper, the
lord treafurer, the lord high fteward of England, the lord
marefchal, the lord high conftable of England, (when any
fuch officers are in being,) and all the juftices of the court
of king's bench, (by virtue of their offices,) and the maft-'r of
the rolls, (by prefcription,) are general confervators of the
peace throughout the whole kingdom, and may commit all
breakers of it, or bind them in recognizances to keep it * :
the other judges are only fo in their own courts. The
coroner is alfo a confervator of the peace within his own
county y ; as is alfo the {heriff z ; and both of them may take
a recognizance or fecurity for the peace. Conftables, tything-
men, and the like, are alfo confervators of the peace within
their own jurifdictions ; and may apprehend all breakers of
the peace and commit them, till they find fureties for their
keeping it a .
w Lambard. Eiren arch, i *. z F. N. B. 8 1.
"Lamb. ia. 'Lamb. 14.
'Brim**
THOSE
Ch.p of PERSONS. 350
THOSE that were, without any office, (imply and merely
conservators of the peace, either claimed that power by pre-
fcription b ; or were bound to exercife it by the tenure of
their lands c \ or, laftly, were chofen by the freeholders in
full county court before the fheriff; the writ for their elec-
tion directing them to be chofen " de probioribus et potentiori-
" bus comitatus fui in cujlodes pacts d ." But when queen Ifabel,
the wife of Edward II., had contrived to depofe her hufband
by a forced refignation of the crown, and had fet up his fon,
Edward III. in his place \ this, being a thing then without
example in England, it was feared would much alarm the
people : efpecially as the old king was living, though hur-
ried about from caftle to caftle ; till at laft he met with an
untimely death. To prevent therefore any rifings, or other
difturbance of the peace, the new king fent writs to all
the (heriffs in England, the form of which is preferved by [
Thomas Walfingham e , giving a plaufible account of the
manner of his obtaining the crown ; to wit, that it was done
ipfius patris bene placito : and withal commanding each (heriff
that the peace be kept throughout his bailiwick, on pain and
peril of difmheritance and lofs of life and limb. And in a
few weeks after the date of thefe writs, it was ordained in
parliament f , that, for the better maintaining and keeping of
the peace in every county, good men and lawful, which were
no maintainers of evil, or barretors in the country, (hould
be ajjigned to keep the peace. And in this manner, and upon
this occafion, was the election of the confervators of the peace
taken from the people, and given to the king&j this aflign-
ment being conftrued to be by the king's commiflion h . But
dill they were called only confervators, wardens, or keepers
of the peace, till the ftatute 34 Edward III. c..i. gave them"
the power of trying felonies j and then they acquired the
more honourable appellation of juftices '.
b Lamb. ij. Lamb. 10.
c Ibid, 17. * Sut. 4 Edw. III. c. a. 18 Edv. Ilf.
* Ibid. 16. ft. a. c. a.
e Hift. A. D. 13*7. l Lamb. 13.
f Stat. i EUw. III. c. 16.
THESE
.. 35 l The RIGHTS BOOK I.
THESE juftices are appointed by the king's fpecial com-
miflion under the great feal, the form of which was fettled
by all the judges, A. D. 1590*. This appoints them all*,
jointly and feparately, to keep the peace, and any two or more
of them to enquire of and determine felonies and other mif-
demefnors : in which number fome particular juftices, or one
of them, are directed to be always included, and no bufinefs
to be done without their prefence : the words of the com-
miflion running thus, " quorum aliquem vejirum, A. B. C. D.
" &c. unutn effe volumus ,-" whence the perfons fo named are
ufually called juftices of the quorum. And formerly it was
cuftomary to appoint only a feleft number of juftices, emi-
nent for their fkill and difcretion, to be of the quorum ; but
now the practice is to advance almoft all of them to that dig-
nity, naming them all over again in the quorum claufe, except
perhaps only fome one inconfiderable perfon for the fake of
C 3C2 1 P r P" et y : an< ^ no exception is now allowable, for not ex-
preffing in the form of warrants, t*fc. that the juftice who
ifiued them is of the quorum 1 . When any juftice intends to
a6t under this commimon, he fues out a writ of dedimus po-
teftatem, from the clerk of the crown in chancery, empower-
ing certain perfons therein named to adminifter the ufual
oaths to him ; which done, he is at liberty to aft.
TOUCHING the number and qualifications of thefe juftices ;
it was ordained by ftatute 18 Edw. III. c. 2. that two or three t
of the beft reputation in each county, mail be afligned to be
keepers of the peace. But thefe being found rather too few
for that purpofe, it was provided -by ftatute 34 Edw. III. c. I.
that one lord, and three, or four, of the moft worthy men
in the county, with fome learned in the law, mall be made
juftices in every county. But afterwards the number of juf-
tices, through the ambition of private perfons, became fo
large, that it was thought neceflary by ftatute 12 Ric.II. c. 10.
and i4Ric. II. c. 1 1. to reftrain them, at firft to fix, and after-
1 Lamb. 43. J Stat. 26 Geo. II. c. 47. See alfo
k See the form itfelf, Lamb. 35. flat. 7 Geo. III. c. 91.
Burn. tit. Juftice?, I.
wards
Ch. 9. of PERSONS. 352
wards to eight only. But this rule is now disregarded, and
the caufe feems to be, (as Lambard obferved long ago m ,) that
the growing number of ftatute laws, committed from time to
time to the charge of juftices of the peace, have occafioned
alfo (and very reafonably) their increafe to a larger number*
And, as to their qualifications, the ftatutes juft cited direct
them to be of the beft reputation, and moft worthy men in
the county : and the ftatute 13 Ric. II. c. 7. orders them to
be of the moft fufficient knights, efquires, and gentlemen of
the law. Alfo by ftatute 2 Hen. V. ft. i. c. 4. and ft. 2. c. i.
they muft be refident in their feveral counties. And becaufe,
contrary to thefe ftatutes, men of fmall fubftance had crept
into the commiflion, whofe poverty made them both covet-
ous and contemptible, it was ena&ed by ftatute 1 8 Hen. VI.
c. ji. that no juftice fhould be put in commiflion, if he
had not lands to the value of 2o/. per annum. And, the
rate of money being greatly altered fince that time, it is now
enacted by ftatute 5 Geo. II. c. 18. that every juftice, except [ 353 ]
as is therein excepted, {hall have ioo/. per annum clear of
all deductions (12) ; and, if he acts without fuch qualifica-
tion, he (hall forfeit ioo/. This qualification n is almoft an
equivalent to the 2O/. per annum required in Henry the fixth's
time : and of this the juftice muft now make oath. Alfo it
is provided by the ad 5 Geo. II. that no pra&ifing attorney,
m Lamb. 34. in his cbronicon pretiofum.
n See bifliop Fleetwood's calculations Stat. 18 Geo. II. c. 3O.
(12) The 1 8 Geo. II. c. 20. is the laft ftatute which prefcribes
the qualifications of juftices of the peace. This clear eftate of
ioo/. per annum may confift of either freehold or copyhold, an
eftate of inheritance or for life, or even in a term for 21 years.
A reverfion or remainder after one or more lives of the value of
$ool.per annum is alfo a qualification. But this does not extend
to corporation juftices, or to the eldeft fons of peers, and of gen-
tlemen qualified to be knights of mires, the officers of the board of
green cloth, principal officers of the navy, undersecretaries of
ftate, heads of colleges, or to the mayors of Cambridge and Ox-
ford, all of whom may aft without any qualification by eftate.
folicitor,
353 The RIGHTS BOOK I.
folicitor, or pro&or, fhall be capable of afting as a juftice of
the peace (13).
As the office of thefe juftices is conferred by the king, fo
it fubfifts only during his pleafure, and is determinable,
1. By the demife of the crown ; that is, in fix months after p .
But if the fame juftice is put in commiflion by the fucceflbr,
he (hall not be obliged to fue out a new dedimus, or to fwear
to his qualification afrem q : nor, by reafon of any new com-
miffion, to take the oaths more than once in the fame reign r .
2. By exprefs writ under the great feal s , discharging any
particular perfon from being any longer juftice. 3. By
fuperfeding the commiflion by writ of fitperfedeas, which
fufpends the power of all the juftices, but does not totally
deftroy it ; feeing it may be revived again by another writ,
called uprocedendo. 4. By a new commiflion, which virtually,
though filently, difcharges all the former juftices that are not
included therein ; for two commiflions cannot fubfift at once.
5. By acceflion of the office of flieriff or coroner 1 (14).
Formerly it was thought, that if a man was named in any
commiffion of the peace, and had afterwards a new dignity
conferred upon him, that this determined his office ; he no
longer anfwering the defcription of the commiffion : but
now u it is provided, that notwithftanding a new title of dig-
nity, the juftice on whom it is conferred fhall ftill continue
a juftice.
THE power, office, and duty of a juftice of the peace de-
pend on his commiffion, and on the feveral ftatutes which
P Stat. I Ann. c. 8. ' Lamb. 67.
i Stat. I Geo.III. c. 13. l Stat. I Mar. fl.i. c. 8.
r Stat. 7 Geo.III. 0.9. u Stat. xEdw. VI. c. 7.
(13) For any county.
( 14) A fheriff cannot aft as a juftice during the year of his office ;
but neither the ftatute referred to, nor I apprehend any other
ftatute, difqualifies a coroner from afting as juftice of the peace ;
nor do the two offices in their nature feem incompatible.
have
Ch. 9. of PERSONS. 354
have created obje&s of his jurifdiMon. His commiffion,
firft, empowers him fingly to conferve the peace ; and there-
by gives him all the power of the antient confervators at
the common law, in fuppreffing riots and affrays, in taking
fecurities for the peace, and in apprehending and commit-
ting felons and other inferior criminals. It alfo empowers
any two or more to hear and determine all felonies and other
offences ; which is the ground of their jurifdi&ion at fef-
fions (15)} of which more will be faid in it's proper place.
And as to the powers given to one, two (16), or more juftices
by the feveral ftatutes, which from time to time have heaped
upon them fuch an infinite variety of bufinefs, that few care
to undertake, and fewer underftand, the office , they are fuch
and of fo great importance to the public, that the country is
greatly obliged to any worthy magiftrate, that without finifler
views of his own will engage in this troublefome fervice.
And therefore, if a well-meaning juftice makes any unde-
figned flip in his practice, great lenity and indulgence are
fhewn to him in the courts of law ; and there are many
ftatutes made to protect him in the upright difcharge of his
office w i which, among other privileges, prohibit fuch juf-
tices from being fued for any overfights, without notice
w Stat. 7 Jac. I. c. 5. 21 Jac. I. c. IZ. 24 Geo. If. c. 44.
( 15) The feffions cannot be held without the prefence of two
juftices.
( 1 6 ) Where a ftatute requires any aft to be done by two juftices,
it is in general an eftablifhed rule, that, if the aft is of a judicial
nature, or is the refult of difcretion, the two juftices muft be prefent
to concur and join in it, otherwife it will be void ; as in orders of
removal and filiation, the appointment of overfeerg, and the allow-
ance of the indenture of a parifh apprentice ; but where the aft is
merely minifterial, they may aft feparately, as in the allowance of
a poor rate. This is the only aft of two juftices, which has yet
been conftrued to be minifterial ; and the propriety of this con-
ftruftion has been juftly queftioned. 3 T. Rep. 380.
But it has been held, that an order of removal figned by two
juftices feparately is not void but voidable, and can only be avoided
by an appeal to the feffions. 4 T. R> 596,
beforehand j
354 The RIGHTS BOOK I.
beforehand ; and flop all fuits begun, on tender made of
fufficient amends ([7). But, on the other hand, any mali-
cious or tyrannical abufe of their office is ufually feverely
( 17 ) It behoves every magiftrate to be acquainted with the law
and the extent of his authority, and he may be compelled to make
an adequate compenfation to thofe who fuffer by his ignorance or
inadvertence : but to protect him from being harafled by vexatious
actions, it is provided that he (hall have notice of any action com-
menced againft him, and the caufe of it, one month before the
writ is fued out, or a copy of it ferved upon him, by a writing
from the attorney of the party, who (hall indorfe upon it his name
and refidence. The notice muft fpecify the precife writ or procefs
intended to be fued out. And if the notice calls it an aSion on
the cafe, it will not be fufficient if an aSion of trefpafs is brought.
7 T. R. 631. The magiftrate may afterwards tender amends, and
plead fuch tender with the general iffue and any other plea. And
if the fum tendered be thought fufficient by the jury, he fhall ob-
tain a verdict with cofts. This action muft be commenced within
fix months after the injury complained of. 24 Geo. II. c. 44.
If a magiftrate abufes the authority repofed in him by the law,
in order to gratify his malice, or promote his private interefts or
ambition, he may be punifhed alfo criminally by indictment or in-
formation. But the court of king's bench have frequently declared,
that though a juftice of peace mould act illegally, yet, if he has
acted honeftly and candidly, without any bad view or ill intention
whatfoever, the court will never punim him by the extraordinary
mode of an information, but will leave the party complaining to
the ordinary method of profecution by aftion or indictment. 2 Bur.
1162. And in no cafe will the court grant an information unlefs
an application for it is made within the fecond term after the
offence committed, and notice of the application be previoufly
given to the juftice, and unlefs the party injured will undertake to
bring no action. And if the party proceeds both by action and
indictment, the attorney general will grant a noli profequi to the
indictment. Indeed, where a juftice has committed an involuntary
error, without any corrupt motive or intention, it may be queftion-
ed whether it is an indictable offence j for the act in that cafe is
either null and void, or the juftice is anfwerable in damages for all
the confequences of it. It is the object of all punifhment to pre-
vent a repetition of the act ; and it would be abfurd to punim a
man for an involuntary act, or for that which he has neither power
nor will to avoid.
The
Ch. 9. of PERSONS. 354
punimed j and all perfons who recover a verdict againft a
juftice, for any wilful or malicious injury, are entitled to
doublecofts(iS).
IT is impoffible upon our prefent plan to enter minutely
into the particulars of the accumulated authority, thus com-
mitted to the charge of thefe magi ft rates. I muft therefore
refer myfelf at prefent to fuch fubfequent part of thefe Com*
mentaries, as will in their turns comprize almoft every ob-
ject of thejuftice's jurifdiction : and in the mean time re-
commend to the ftudent the perufal of Mr. Lambard's eire-
narcha, and Dr. Burn's juftice of the peace ; wherein he will
find every thing relative to this fubject, both in antient and
modern practice, collected with great care and accuracy,
and difpofed in a moft clear and judicious method.
I SHALL next confider fome officers of lower rank than f 355 ]
thofe which have gone before, and of more confined jurifdic-
tion ; but ftill fuch as are imiverfally in ufe through every
part of the kingdom.
IV. FOURTHLY, then, of the conftable. The word
conftable is frequently faid to be derived from the Saxon
The ftatute 43 Geo. III. c. 141. was pafled to render jufticea
of the peace more fecure in the execution of their duty, and it
ena&s, that, in all aft ions, which (hall be brought againft any juf-
tice of the peace on account of any conviction, in cafe fuch con-
viction (hall have been quamed, the plaintiff, befides the amount
of the penalty which may have been levied, (hall not recover greater
damages than ^d. nor any cofts, unlefs it mail be alleged in the
declaration in the action, which (hall be an action upon the cafe
only, that fuch acts were done malicioufly, and without any rea-
fonable or probable caufe.
And then there {hall be a verdict for the defendant the juftice,
if he (hall prove at the trial that the plaintiff was actually guilty
of the offence, and that he had undergone no greater punimment
than the law affigned to it.
( 18) That is, where the judge certifies in court that the injury
was wilful and malicious.
VOL. I. I i komnjr
355 Th RIGHTS BOOK I.
komnj-jtapelj and to fignify the fupport of the king. But
as we borrowed the name as well as the office of conftable
from the French, I am rather inclined to deduce it, with
fir Henry Spelman and Dr. Cowel, from that language :
wherein it is plainly derived from the Latin comes Jlabuli, an
officer well known in the empire : fo called becaufe, like the
great conftable of France, as well as the lord high conftable
of England, he was to regulate all matters of chivalry, tilts,
tournaments, and feats of arms, which were performed on
horfeback (19). This great office of lord high conftable hath
Jjeen difufed in England, except only upon great and folemn
Dccafions, as the king's coronation and the like, ever fince
the attainder of Stafford duke of Buckingham under king
Henry VIII. ; as in France it was fupprefTed about a century
after by an edict of Louis XIII. x : but from his office, fays
Lambard y , this lower conftablefhip was at firft drawn and
fetched, and is as it were a very finger of that hand. For
the ftatute of Winchefter z , which firft appoints them r directs
that, for the better keeping of the peace, two conftables in
every hundred and franchife fliall infpect all matters relating
to arms and armour.
CONSTABLES are of two forts, high conftables, and petty
conftables. The former were firft ordained by the ftatute
of Winchefter, as before mentioned j are appointed at the
court leets of the franchife or hundred over which they pre-
fide, or, in default of that, by the juftices at their quarter
Philip's life of Pole, ii. lit. + 13 Edw.'I. c. 6.
t of conftables, 5.
We may form a judgment of his power, and the condi-
tion of the people of this country in the fifteenth century, from
the following claufe in a commiffion in the 7 Edw. IV. to Richard
earl Rivers : Plenam poteflatem et auSoritatem damus et committimus
ad cognofcendum et proczdendum in omnibus ft Jingulis caufis et negotiis
de et fuper crimins lafa majejlatis, feu ipfius occaficne, ctterifqu: caujis
quibufcunque, fummarie et de piano, fine Jlrepitu et jigurd judicii, fold
faSi verltate infpeSd. Rym. Foed. torn. xi. p. 582.
feflions ;
Ch. 9. cf PERSONS. 356
feflions ; and are removable by the fame authority that
appoints them a . The petty conftables are inferior officers in
every town and parifli, fubordinate to the high conftable of
the hundred, firft inftituted about the reign of b Edw. III.
Thefe petty conftables have two offices united in them : the
one antient, the other modern. Their antient office is that
of head-borough, tithing-man, or borfholder , of whom we
formerly fpoke c , and who are as antient as the time of king
Alfred : their more modern office is that of conftable merely j
which was appointed (as was obferved) fo lately as the reign
of Edward II., in order to affift the high conftable d . And
in general the antient head-boroughs, tithing-men, and borf-
holders, were made ufe of to ferve as petty conftables;
though not fo generally, but that in many places they
ftill continue diftincl: officers from the conftable. They
are all chofen by the jury at the court leet ; or if no
court leet be held, are appointed by two ju dices of the
peace e .
THE general duty of all conftables, both high and petty,
as well as of the other officers, is to keep the king's peace in
their feveral diftri&s ; and to that purpofe they are armed
with yery large powers, of arrefting and imprifoning, of
breaking open houfes, and the like : of the extent of which
powers, considering what manner of men are for the molt
part put into thefe offices, it is perhaps very well that they
are generally kept in ignorance (20). One of their principal
Salk. 150. * Lamb. 9.
" Spelm. Gloff. 148. Stat. 14 * 15 Car. II. c.ia.
e page 115.
(20) If their powers are dangerous, they ought to be curtailed
by the legiflature ; but furely every officer ought to know the
extent of his duty and authority.
By 33 Geo. III. c. 55. any conftable or parifli officer may upon
complaint upon oath before two juftices be convicted of negleA
of duty or difobedknce of any lawful warrant or order, and may
li a t*
The RIGHTS BOOK I.
duties, a rifing from the ftatute of Winchefter, which appoints
them, is to keep watch and ward in their refpeclive jurifdic-
tioiis. Ward, guard, or ciiflodia y is chiefly applied to the
day-time, in order to apprehend rioters, and robbers on the
High ways ; the manner of doing which is left to the dif-
cretion of the juftices of the peace and the conftable': the
hundred being however anfwerable for all robberies com-
mitted therein, by day-light, for having kept negligent guard.
Watch is properly applicable to the night only, (being called
among our Teutonic anccftors nuacht or wafla s ,) and it be-
ll 357 3 gins at the time when ward ends, and ends when that begins :
for, by the ftatute of Winchefter, in walled towns the gates
(hall be clofed from fun-fetting to fun-rifing, and watch (hall
be kept in every borough and town, efpecially in the fummer
feafon, to apprehend all rogues, vagabonds, and night-walkers,
and make them give an account of themfelves. The con-
ftable may appoint watchmen, at his difcretion, regulated
by the cuftom of the place ; and thefe, being his deputies,
have for the time being the authority of their principal.
But, with regard to the infinite rumber of other minute du-
ties, that are laid upon conftables by a diverfity of ftatutes,
I muft again refer to Mr. Lambard and Dr. Burn ; in whofe
compilations may be alfo feen, what powers and duties
belong to the conftable or tithing-man indifferently, and
what to the conftable only : for the conflable may do what-
ever the tithing-man may ; but it does not hold econverfo, the
tithing-man not having an equal power with the conftable.
V. WE are next to confider the furveyors of the high-
ways. Every parifti is bound of common right to keep the
' Dnlt. Joft. C. 104. tat vacant. Capitular. Hludov. Pit.
Excul las et exploration!! quas tvac- cap. 1. A.D.Slj.
be fined any fum not exceeding 40*. ; .but the party may appeal
to the feflione.
A conitable is a trefpaffer, if he executes a warrant out of his
diftri<a. \ Hen. Black. I $.
high-
Ch. 9. of PERSONS. 357
high-roads, that go through it, in good and fufficient re-
pair } unlefs, by reafon of the tenure of lands or otherwife,
this care is configned to fome particular private perfon. From
this burthen no man was exempt by our antient laws, what-
ever other immunities he might enjoy : this being part of the
trinoda necejjitas to which every man's eftate was fubjeft ;
viz. expeditio contra hojiem, arclum conJlrufl'iO) et pontlum re-
paratio. For, though the reparation of bridges only is ex-
prefied, yet that of roads alfo muft be underftood ; as in
the Roman law, ad inftruffihnes repar atlonefque itinerutn et
pontium, nutltim genus hominum t nulliufque dignitatis ac vene~
rationis mentis, cejjiire oportet h . And indeed now, for the
moft part, the care of the roads only feems to be left to
parifhes ; that of bridges being in great meafure devolved
upon the county at large, by ftatute 22 Hen. VIII. c. 5. If
the parilh neglecled thefe repairs, they might formerly,
as they may dill, be indicled for fuch their neglect : but [ 358
it was not then incumbent on any particular officer
to call the parilh together, and fet them upon this work \
for which reafon, by the ftatute 2 & 3 Ph. & M. c. 8. fur-
veyors of the highways were ordered to be chofcn in every
parifh '.
THESE furveyors were originally, according to the ftatute
of Philip and Mary, to be appointed by the conftable and
church-wardens of the parifli ; but now they are confti-
tuted by two neighbouring juftices, out of fuch inhabitants
or others as are defcribed in ftatute 13 Geo. III. c. 78. and
may have falaries allotted them for their trouble.
THEIR office and duty confift in putting in execution a
variety of laws for the repairs of the public highways j that
C. II- 74. 4. the method of making and amending
i This office, Mr. Dalton (juft. cap. the Roman ways with thofe of coun-
jo.) 'ays. exadly anfwers that of the try j>aiifljes; but alto becaufe ono
curators, viarum of the Romans; but Thermus, who was the curatcr of the
ji fliould feem that theirs was an office Flamhiian way, was candidate for the
of rather more dignity and authority confuUhip with Juliu* CtfJar. (Cit. ad
than oun: not only from comparing Attit. /.x. tf.l.)
I i 3 s,
358 The RIGHT* BOOK I.
is, of ways leading from one town to another : all which are
now reduced into one a& by ftatute 13 Geo. III. c. 78. which
enacts, i. That they may remove all annoyances in the
highways, or give notice to the owner to remove them ; who
is liable to penalties on non-compliance. 2. They are to
call together all the inhabitants and occupiers of lands, tene-
ments, and hereditaments within the parifh, fix days in
every year, to labour in fetching materials, or repairing
the highways : all perfons keeping draughts (of three horfes,
&c.) or occupying lands, being obliged to fend a team for
every draught, and for every 5o/. a year, which they keep
or occupy ; perfons keeping lefs than a draught, or occu-
pying lefs than 5o/. a year, to contribute in a lefs propor-
tion : and all other perfons chargeable, between the ages
of eighteen and fixty-five, to work or find a labourer. But
they may compound with the furveyors, at certain eafy
rates eftablifhed by the a&. And every cartway leading
to any market-town muft be made twenty feet wide at
the leaft, if the fences will permit ; and may be increafed
by two juftices, at the expenfe of the parifh, to the breadth
of thirty feet (21). 3. The furveyors may lay out their
(21) Two juftices, where they think it will render the road
more commodious, may order it to be diverted ; the power to en-
large does not extend to pull down any building ; or to take in the
ground of any garden, park, paddock, court, or yard.
No tree or bu(h (hall be permitted to grow in any highway, within
fifteen feet from the centre of it, except for ornament or fhelter
to a houfe ; and the owners of the adjoining lands may be compelled
to cut their hedges, fo as not to exclude the fun and wind from the
highway. Fines awarded by the court for not repairing a high-
way (hall not be returned into the exchequer, but (hall be applied
to the repair of the highways as the courts (hall direct.
But the general highjvay aft, the 13 Geo. III. and the fubfe-
quent regulations made by the 34 Geo. III. c. 74. are far too
long to give an adequate reprefentation of them in an abridgment.
Thofe who are interefted in the fubjeft muft confult the Statutes
at Large, or the title, Highway, in Burn's Juftice, where they are
lully ftated.
The
Ch. 9. of PERSONS. 359
own money in purchafing materials for repairs, in erefting
guide-pofts, and making drains, and ihail be reimburfed by
a rate to be allowed at a fpecial feffions. 4. Jn cafe the
perfonal labour of the pariih be not fumcient, the fur-
veyors, with the confent of the quarter feffions, may levy a
rate on the pariih, in aid of the perfonal duty, not ex-
ceeding, in any one year, together with the other high-
The 34 Geo. III. c. 74. has thrown the whole burden of the
repair of the highways upon the occupiers of tenements, and by
long and myfterious claufes has repealed thofe fe&ions in the
13 Geo. III. c. 78. which provided that every man, not being
the occupier of any tenement of 4/. a year between the ages of
1 8 and 60, and not being an apprentice or menial fervant, fhould
work personally fix days yearly, or compound by paying two
(hillings. I know that many intelligent magiftrates could not
at the firft comprehend this ftatute : but when the effect of it
could not be difputed, ftill they could not believe that this had
been the intention of the legiflature. This ftatute gives a power
to two juftices to exempt the poor occupiers of tenements from
the payment of afleffments towards the highways. Why the
payment of fo fmall a tax as 2s. a year towards the repair of
the roads upon every male inmate, as before defcribed, who could
afford to pay it, was thrown upon the occupiers of land or tene-
ments only, if the framers of it at the time actually underftood
the full Operation of this ftatute, h to me wholly incompre.
henfible.
The preamble to the 44 Geo. Ill, c. 64. ftates, that it fre-
quently happens that the boundaries of two parishes paf
through the middle of a common highway, fo that one fide
is fituated in and liable to be repaired by one parifli, and the
other by the adjoining parifli, which has been found to be in-
convenient ; it therefore enacts that two juftices of the peace mall
have power to divide fuch a road between the two parishes by a
tranfverfe line or boundary. And either parirti difcontented with
that divifion may appeal to the quarter feffions, whofe decifion
mall be final.
The juftices at a fpecial feffions, in the firft week after Michael-
mas quarter feffions, may fix the competition for ftatute-duty,
wltKin the limits prefcribed by 44 Geo. III. c. 52.
I i 4 ' way
359 The RIGHTS BOOK!.
way rates, the fum of qd. in the pound ; for the due ap-
plication of which they are to account upon oath. As for
turnpikes, which are now pretty generally introduced in
aid of fuch rates, and the law relating to them, thefe de-
pend principally on the particular powers granted in the
feveral road ats, and upon fome general provifions,
which are extended to all turnpike roads in the kingdom,
by ftatute 13 Geo. III. c. 84. amended by many fubfequent
ads".
VI. I PROCEED therefore, laftly, to confider the overfeers
of the poor \ their original, appointment, and duty.
THE poor of England, till the time of Hen. VIII., fubfifted
entirely upon private benevolence, and the charity of well-
dkpofed chriftians (22). For though it appears by the mir-
rour 1 , that by the common law the poor were to be " fuftain-
" ed by parfons, rectors of the church, and the parifhioners ;
' fo that none of them die for default of fuftenance ;"
and though by the ftatutes 12 Ric. II. c. 7. and 19 Hen. VII.
c. 12. the poor are directed to abide in the cities or towns
wherein they were born, or fuch wherein they had dwelt
for three years, (which feem to be the firft rudiments of
parifh fettlements,) yet till the ftatute 27 Hen. VIII. c. 25.
I find no compulfory method chalked out for this purpofe :
but the poor feem to have been left to fuch relief as the
humanity of their neighbours would afford them. The
monafteries were, in particular, their principal refource ;.
and among other bad effects which . attended the monaftic
inftitutions, it was not perhaps one of the leaft (though fre-
quently efteemed quite otherwife) that they fupported and
fed a very numerous and very idle poor, whofe fuftenance
* Stat. 14 Geo. III. c. 14. 36. 57. 8s. ' c. i. 3.
16 Geo. III. c. 39. 1 8 Geo. III. c. 82.
(22) The poor in Ireland, to this day, have no relief but from
private charity. 2 Ld. Mount. \ 18.
depended
Ch. 9. of PERSONS. 359
depended upon what was daily diftributed in alms at the gates [ 360 ]
of the religious houfes. But, upon the total diflblution of thefe,
the inconvenience of thus encouraging the poor in habits
of indolence and beggary was quickly felt throughout the
kingdom : and abundance of ftatutes were made in the reign
of king Henry the eighth and his children, for providing for
the poor and impotent : which, the preambles to fome of them
recite, had of late years greatly increafed. Thefe poor were
principally of two forts ; fick and impotent, and therefore
unable to work; idle and fturdy, and therefore able, but
not willing, to exercife an honeft employment. To pro-
vide in fome meafure for both of thefe, in and about the
metropolis, Edward the fixth founded three royal hofpitals j
Chrift's and St. Thomas's, for the relief of the impotent
through infancy or ficknefs ; and Bridewell for the punifh-
ment and employment of the vigorous and idle. But thefe
were far from being fufficient for the care of the poor
throughout the kingdom at large : and therefore, after many
other fruitlefs experiments, by ftatute 43 Eliz. c. 2., overfeers.
of the poor were appointed in every parifh.
BY virtue of the ftatute laft mentioned, thefe overfeers are
to be nominated yearly in Eafter week, or within one month
after, (though a fubfequent nomination will be valid m ,) by
two juftices dwelling near the parifh. They muft be fub-
ftantial houfeholders, and fo expreffed to be in the appoint-
ment of the juftices n (23).
m Sir. 11*3. * 3 Lord Raym. 1394.
(23) It is declared by the ftatute, that the church-wardens of
every parifli fhall be overfeers of the poor ; befides thefe the juf-
tices may appoint two, three, or four, but not more, of the in-
habitants overfeers for each parifh. (i Burr. 446. ) But if a parifh
is divided into townfhips, and is fo large that fome townfhips can-
not reap the benefit intended by the 43 of Elizabeth, in that cafe
feparate overfeers may be appointed for fuch townmips, under the
13 & 14 Car. II. c. 1 2. Wherever there is a conftable there is a.
townfhip, i T. R. 374.
A woman
360 12/RIGHT3 BOOK I.
THEIR office and duty, according to the fame ftatiite, are
principally thefe : firft, to raife competent fums for the necef-
fary relief of the poor, impotent, old, blind, and fuch other
being poor, and not able to work : and fecondly, to provide
work for fuch as are able, and cannot otherwife get employ-
ment j but this latter part of their duty, which, according to
the wife regulations of that falutary ftatute, fhould go hand
in hand with the other, is now moft ftiamefully neglected.
However, for thefe joint purpofes, they are empowered to
361 ] make and levy rates upon the feveral inhabitants of the
parifti, by the fame act of parliament j which has been farther
explained and enforced by feveral fubfequent ftatutes.
THE two great objefts of this ftatute feem to have been,
i. To relieve the impotent poor, and them only. 2. To find
employment for fuch as are able to work: and this princi-
pally by providing ftocks of raw materials to be worked up at
their feparate homes, inftead of accumulating all the poor in
one common workhoufe ; a practice which puts the fober
and diligent upon a level (in point of their earnings) with
thofe who are diffblute and idle, deprefles the laudable emu-
lation of domeftic induftry and neatnefs, and deftroys all
endearing family connexions, the only felicity of the indigent.
Whereas, if none were relieved but thofe who are incapable
to get their livings, and that in proportion to their incapa-
city : if no children were removed from their parents but
fuch as are brought up in rags and. idlenefs ; and if every
poor man and his family were regularly furniflied with em-
ployment, and allowed the whole profits of their labour j a
fpirit of bufy cheerfulnefs would foon diffufe itfelf through
every cottage ; work would become eafy and habitual, when
absolutely neceflary for daily fubfiftence j and the peafant
would go through his taflc without a murmur, if aflured that
he and his children (when incapable of work through in-
A woman may be appointed an overfeer of the poor, if a fub-
ftantial houfeholder. 2 T. R, 395.
fancy,
Ch. g. cf PERSONS. J6r
fancy, age, or infirmity,) would then, and then only, be
entitled to fupport from his opulent neighbour's.
THIS appears to have been the plan of the ftatute of queen
Elizabeth ; in which the only defect was confining the ma-
nagement of the poor to fmall parochial diftri&s, which
are frequently incapable of furnifhing proper work, or pro-
viding an able director. However, the laborious poor were
then at liberty to feek employment wherever it was to be
had : none being obliged to refide in the places of their fet-
tlement but fuch as were unable or unwilling to work, and
thofe places of fettlement being only fuch where they were
born, or had made their abode, originally for three years o, and [
afterwards (in the cafe of vagabonds) for one year only p .
AFTER the reftoration a very different plan was adopted,
which has rendered the employment of the poor more diffi-
cult, by authorizing the fubdivifion of parifhes ; has greatly
increafed their number, by confining them all to their re-
fpetive diftri&s ; has given birth to the intricacy of our poor
laws, by multiplying and rendering more eafy the methods of
gaining fettlements ; and, in confequence, has created an in-
finity of expenfive law-fuits between contending neighbour-
hoods, concerning thofe fettlements and removals. By the
ftatute 13 & 14 Car. II. c. 12. a legal fettlement was declared
to be gained by birth ,- or by inhabitancy, apprentice/lip, or
fervice, for forty days: within which period all intruders were
made removable from' any parifli by two juftices of the peace,
unlefs they fettled in a tenement of the annual value of io/.
The frauds naturally confequent upon this provifion, which
gave a fettlement by fo fhort a refidence, produced the fta-
tute i Jac. II. c. 17. which directed notice in writing to be
delivered to the parim officers, before a fettlement could be
gained by fuch refidence. Subfequent provifions allowed
other circumftances of notoriety to be equivalent to fuch no-
tice given ; and thofe circumftances have from time to time
Stat. 19 Hen. VII. c. 12. i Elw. VI. c.j. 3 Ww. VI. c. 16.
Stat. ,39 EJit. c. 4. "
been
362 The RIGHTS BOOK !
been altered, enlarged, or reftrained, whenever the experience
of new inconveniences, arifing daily from new regulations,
fuggefted the neceffity of a remedy. And the doctrine of
certificates was invented, by way of counterpoife, to reftrain
a man and his family from acquiring a new fettlement by
any length of refidence whatever, unlefs in two particular
excepted cafes ; which makes parifties very cautious of giving
fuch certificates, and of courfe confines the poor at home,
where frequently no adequate employment can be had (24).
(24) By 13 & 14 Car. II. c. 12. all perfons who are likely to
become chargeable, unlefs they fettle upon a tenement of the yearly
value of io/. may be removed to the places where they are legally
fettled. This ftatute was certainly a great infringement of magna
cJiarta and the liberty of the fubject ; as nothing can be more cruel
or impolitic than to prevent a perfon from refiding in that fituation
where, by his induftry and occupation, he can belt procure a com-
petent provifion for himfelf and his family. To alleviate, in forae
degree, the hardship and inconvenience introduced by that ftatute,
the legiflature had provided by the 8 & 9 W. III. c. 30. that if
the major part of the church-wardens and overfeers of any parifh or
townfhip will grant a certificate under their hands and feals, attefted
by two witnefles, and allowed and fubfcribed by two juftices, ac-
knowledging a perfon and his family therein fpecified to have a legal
fettlement in their parifh or towrifhip, and mail direct it to fome
particular parifh or townfhip ; fuch perfon, having delivered this
certificate to the parifh officers where it is directed, then neither
he nor his family are removable from thence till they are actually
chargeable. 6T. ./?. 552. But as the object of the certificate
was to prevent him. from bringing any incumbrance upon the
parifh where he is thus permitted to refide, by the 9 & io W. III.
c. II. he is reftrained from gaining a fettlement where he lives
under the protection of the certificate by any means whatever,
except by renting a tenement of the yearly value of io/. and by
a refidence in the parifh for forty days, or by executing an annual
office. But, befides thefe two cafes mentioned in the act, it has
been held, that a certificate perfon may gain a fettlement by re-
fiding upon (or having in the parifh where he refidet) any eftate
whatever of his own, provided, if it has been actually purchafed by
him, he has bona Jide paid 3O/. for it. Sir. 163. 1 193. Burr. $. C-
Ch. 9. of PERSONS. 362
THE law of fettlements may be therefore now reduced to
the following general heads ; or, a fettlement in a parifti may-
be acquired, i. By birth; for, wherever a child is firft known [ 363
to be, that is always prima facie the place of fettlement, until
fome other can be fhewni. This is alfo generally the place of
fettlement of a baftard child 1 "; fora baftard, having in the eye
of the law no father, cannot be referred to his fettlement, as
other children may*. But, in legitimate children, though the
place of birth be pritnd facie the fettlement, yet it is not con-
chifively fo; for there are, 2. Settlements by parentage, being
the fettlement of one's father or mother : all legitimate chil-
* Carth. 433. Comb. 364. Salk. r See p. 459.
485. t Lord Raym. 567. * Salk. 427.
220. A certificate is conclufive upon the parifh granting it, with
refpeft to the parifti to which it is granted or firft delivered ; but
it is not fo with regard to other parifhes ; for though it will be
prima facie evidence agaiufl the parifli granting it, yet it may be
repelled by other evidence; and they may be permitted to fhew that
they gave it under a miftake, and in their own wrong. q.T. R. 251.
A certificate extends to children born after it is granted, but
not to the grandchildren of the paterfamilias. 4 T. /?. 797.
But the object of granting certificates is now put an end to by
the 35 Geo. III. c. 101. which enafts that no perfon (hall be re-
moved by an order of removal till he becomes actually chargeable.
But every unmarried woman with child (hall be deemed to be ac-
tually chargeable, and alfo all perfons convicted of any felony, and
rogues, vagabonds, and idle or diforderly perfons, and perfons of
evil fame or reputed thieves not giving a fatisfa&ory account of
themfelves, may be removed, as if they were actually chargeable.
And where a pauper is ordered to be removed by an order of re-
moval, or a vagrant pafs in cafe of the ficknefs of the pauper,
the juftices making fuch an order may direft the execution of it to
be fufpended ; and in the cafe of an order of removal, the expences
of the maintenance of the pauper during fuch fufpenfion (hall be
borne by the parifti to which the order of removal {hall be made.
And if an unmarried woman is delivered of a child during fuch
fufpenfion, it fhall be fettled in the parifti which at the time of the
birth was the legal fettlement of the mother.
dren
363 The RIGHTS BOOK I.
dren being really fettled in the parifh where their parents
are fettled, until they get a new fettlement for them-
felves" (25). A new fettlement may be acquired feveral
waysj as, 3. By marriage. For a woman, marrying a man
that is fettled in another parifli, changes her own fettlement:
the law not permitting the feparation of hufband and wife 1 .
But if the man has no fettlement, her's is fufpended during
his life, if he remains in England, and is able to maintain
her; but in his ab fence, or after his death, or during (per-
haps) his inability, fhe may be removed to her old fettle-
ment 11 (26). The other methods of acquiring fettlements in
any parifti are all reducible to this one, of forty days' reftdence
therein : but this forty days' refidence (which is conftrued to
s Salk. 5z8. a Lord Raym. 1473. Foley, 349. aji. aj2. Burr. Sett.
' Stra. 544- C. 370.
( 25 ) If the parents acquire a new fettlement, the children alfo
follow, and belong to the laft fettlement of the father, or, after
the death of the father, to the laft fettlement of the mother
whilft. fhe is unmarried, till they are emancipated or become in-
dependent of their father's or mother's family, and in that cafe
they have that fettlement which their parent had at the time of
emancipation.
This is a very indefinite word, and it is no wonder that feveral
cafes have arifen upon the interpretation of it. Lord Kenyon
feems to have given as full and as jutl an explication of it as it will
admit, in obferving, that " the cafes of emancipation have always
" been decided on the circumftances either of the fon's being
" twenty -one, or married, or having gained a fettlement in his
" own right, or having contracted a relation, which was incon-
" fiftent with the idea of his being in a fubordinate fituation in
" his father's family." 3 T. R. 356. 8 T. R. 479.
(26) In the abfence or after the death of the hufband, in that
cafe the wife and her children may be removed to her maiden
fettlement ; but it feems fully determined that they cannot be fe-
parated or removed from the hufband. (Sur. 5. C. 813. I //vz. 544.)
The confequence is, that the whole family muft be fupported as
cafual poor in the parifh where they may happen to want relief.
In the removal of a wife or a widow, it is fufficient in the firfl in-
ftance to prove her maiden fettlement. Cold. 39. 236.
15 be
Ch. 9. <f PERSON?. 363
be lodging or lying there) muft not be by fraud, or ftealtb,
or in any clandeftine manner; but made notorious, by one or
other of the following concomitant circumftances. The next
method therefore of gaining a fettlement, is, 4. By forty days'
refidence and notice. For if a ftranger comes into a parifh
and delivers notice in writing of his place of abode, and
number of his family, to one of the overfeers, (which muft be
read in the church and regiftered,) and refides there unmo-
lefted for forty days after fuch notice, he is legally fettled
thereby w . For the law prefumes that fuch a one at the time
of notice is not likely to become chargeable, elfe he would not
venture to give it j or that in fuch cafe the parifli would take
care to remove him (27). But there are alfoothercircumftances
equivalent to fuch notice: therefore, 5. Renting for a year (28) C
a tenement of the yearly value of ten pounds, and refiding
forty days in the parifli, gains a fettlement without notice",
upon the principle of having fubftance enough to gain credit
for fuch a houfe. 6. Being charged to and paying the public
taxes and levies of the parifti (29) (excepting thofe for fca-
w Stat. 13 & 14 Car. II. c. I*, i Jac. II. * Stat. 13 & 14 Car.II. c. i.
0.17. 3&4 W.&M.C.H.
(27) By the 35 Geo. III. c. 101. it is enafted that no perfon
in future (hall gain a fettlement by fuch a notice.
(28) It is not neceflary that the renting (hould be for a year ; if
a tenement of the yearly value of io/. be taken for two months
or 40 days only, it will be fufficient to give a fettlement. ( Bur. S. G.
474. ) Nor is it neceflary there (hould be any houfe upon the pre-
mifes ; even a renting of the after-grafs or pafturage will be fufficient.
(4 7\ jR. 348.) A perfon gains a fettlement by refiding in the
parifh in which part of the premifes lies, but not by refiding elfe-
where. (z T. R. 48.) It need not be one entire tenement j for if
he takes one tenement in one parifti, and another in a different pa-
rifli, if together they are of the value of i.o/. a-year, he will gain a
fettlement by refiding in either parifti ; the value only is material :
it will be fufficient to give a fettlement, if the enjoyment of the te-
nement is gratuitous, or if no rent is to be paid for it. i T. JR.. 458.
(29) By the 35 Geo. III. c. 101- the payment of taxes for a
tenement of lefs yearly value than io/. will not give a fettlement :
fo that this fpecies of fettlement is in effe<ft aboliflied.
vengers,
364 The RIGHTS BOOK I.
vengers, highways*, and the duties on houfes and windows *);
and, 7. Executing, when legally appointed, any public paro-
chial office, for a whole year in the parifli, as church- ward en,
'&c. are both of them equivalent to notice, and gain a fettle-
ment*, if coupled with a refidence of forty days. 8. Being
hired for a year, when unmarried and childlefs (30), andy^rv-
ing a year in the fame fervice; and, 9. Being bound znapprentice,
give the fervant and apprentice a fettlement without notice b , in
that place wherein they ferve the laft forty days. This is meant
to encourage application to trades, and going out to reputable
1 Stat. 9 Geo. I. c. 7. 6. Stat. 3 & 4 W. & M. c. u.
2 Stat. 21 Geo. II. c. 10. 18 Geo. III. b Stat. 3 & 4 W. & M. c. it. 8 & 9
c.a6. W.III. c.io. 31 Geo. II. c. n.
(30) A widower or widow with children emancipated is confi-
dered as childlefs, for fuch children cannot follow the fettlement
gained by their parent's fervice. 3 Burn. 445. If an unmarried
man is hired for a year, but, before he enters upon the fervice, or
during the fervice, marries, he may gain a fettlement. 3 T. R. 382.
But this will not extend to the continuance in the fervice a fecond
year ; for he was married when this new contract was exprefsly or
impliedly entered into. Cald. 54. Hiring for any time certainly
lefs than a year will not be fufficient ; but from Whitfuntide to
Whitfuntide is confidered a year, though it will frequently happen
to be a period lefs than 365 days. To gain a fettlement as a fer-
vant, there muft be a hiring for a year, and a continued fervice for
a year ; but it is not neceflary that the fervice fliould be fubfequent
to the hiring ; for if there is a continued fervice for eleven months
or any other part of a year, by any number or modes of hirings, or
with any difference of wages, and afterwards a hiring for a year
and a fervice to complete the year, a fettlement is gained. Cald. 179.
There feemed to be great reafon to think that the fervice fubfe-
quent to the hiring for a year mould at leaft be 40 days ; but it
is now decided that that is not neceflary. ($T.R. 98. ) The fettle-
ment of a fervant and an apprentice is where they laft refide 40 days
in their mafter's employ ; and where they do not refide 40 days fuc-
ceffively at one place, but alternately in two or more par i flies, and
more than 40 days upon the whole in each in the courfe of a year,
the fettlement is in that parifli in which they deep the laft night.
Doug. 633.
fenrices.
Ch.9- </ PERSONS. 364
fervices. 10. Laftly, the having an eftate of one's own,
and tedding thereon forty days, however fmall the value
may be, in cafe it be acquired by at of law or of a third
perfon, as by defcent, gift, devife, &c. is a fufficient fet-
tlement c : but if a man acquire it by his own acl;, as by
purchafe, (in it's popular fenfe, in confederation of money
paid,) then unlefs the confideration advanced bond fde be
3O/. it is no fettlement for any longer time than the perfon
(hall inhabit thereon d . He is in no cafe removable from
his own property : but he (hall not by any trifling or fraudu-
lent purchafe of his own acquire a permanent and lafting
fettlement.
ALL perfons not fo fettled may be removed to their own
parifhes on complaint of the overfeers by two juftices of
the peace, if they mall adjudge them likely to become
chargeable to the parifh into which they have intruded :
unlefs they are in a way of getting a legal fettlement, as by
having hired a houfe of io/. per annum, or living in an an- [ 365 ]
nual fervice ; for then they are not removable e . And in all
other cafes, if the parifh to which they belong will grant
them a certificate acknowledging them to be their parifh-
ioners, they cannot be removed merely becaufe likely to
become chargeable, but only when they become aflually
chargeable f . But fuch certificated perfon can gain no fettle-
ment by any of the means above mentioned (31), unlefs by
renting a tenement of io/. per annum, or by ferving an annual
office in the parifh, being legally placed therein : neither can
an apprentice or fervant to fuch certificated perfon gain a
fettlement by fuch their fervice g .
THESE are the general heads of the laws relating to the
poor, which, by the refolutions of the courts of juftice thereon
c Salk.524. f Stat. 8*9 W. III. c. 30.
d Stat. 9 Geo. I. c. 7. 8 Stat. iz Ann. c. 1 8.
e Salk. 472.
(31) See note ( 24) of this chapter.
VOL. I. K k within
365 The RIGHTS BOOK I.
within a century paft, are branched into a great variety (32).
And yet, notwithftanding the pains that have been taken about
them, they ftill remain very imperfect, and inadequate to the
purpofes they are defigned for : a fate that has generally
attended moft of our ftatute laws, where they have not the
foundation of the common law to build on. When the fhires,
the hundreds, and the tithings, were kept in the fame admir-
able order in which they were difpofed by the great Alfred,
there were no perfons idle, confequently none but the im-
potent that needed relief : and the ftatute of 43 Eliz. feems
entirely founded on the fame principle. But when this ex-
cellent fcheme was neglected and departed from, we cannot
but obferve with concern what miferable fluffs and lame
expedients have from time to time been adopted, in order to
patch up the flaws occafioned by this neglect. There is not
a more necefiary or more certain maxim in the frame and
conftitution of fociety, than that every individual mult con-
tribute his (hare in order to the well-being of the community :
and furely they muft be very deficient in found policy, who
fuffer one half of a parifti to continue idle, diflblute, and un-
employed ; and at length are amazed to find, that the induftry
of the other half is not able to maintain the whole.
(32) For a full and complete knowledge of this extenfive fub-
jeft, recourfe muft be had to Burn's Juftice, and Mr. Conft's valu-
able edition of Bott, and the reporters there referred to.
Ch.io. of PERSONS. 366
CHAPTER THE TENTH.
OF THE PEOPLE, WHETHER ALIENS,
DENIZENS, OR NATIVES.
TT AVING, in the eight preceding chapters, treated of per-
fons as they ftand in the public relations of magijlrates,
I now proceed to confider fuch perfons as fall under the deno-
mination of thepeople. And herein all the inferior and fubordi-
nate magiftrates, treated of in the laft chapter, are included.
THE firft and mod obvious divifion of the people is into
aliens and natural-born fubjedls. Natural-born fubjets are
fuch as are born within the dominions of the crown of Eng-
land ; that is, within the ligeance, or, as it is generally called,
the allegiance of the king : and aliens, 'fuch as are born out
of it. Allegiance is the tie, or ligamen, which binds the
fubjeft to the king, in return for that protection which the
king affords the fubjet. The thing itfelf, or fubftantial part
of it, is founded in reafon and the nature of government ;
the name and the form are derived to us from our Gothic
anceftors. Under the feodal fyftern, every owner of lands
held them in fubjeftion to fome fuperior or lord, from whom
or whofe anceftors the tenant or vafal had received them ; and
there was a mutual truft or confidence fubfifting between the
lord and vafal, that the lord mould protect the vafal in the
enjoyment of the territory he had granted him, and, on the
other hand, that the vafal mould be faithful to the lord, and [ 367 ]
defend him againft all his enemies. This obligation on the
part of the vafal was called his Jldelilas or fealty ; and an
oath of fealty was required, by the feodal law, to be taken
by all tenants to their landlord, which is couched in almoft
K k 2 the
367 The RIGHTS BOOK I.
the fame terms as our antient oath of allegiance a ; except
that in the ufual oath of fealty there was frequently a faving
or exception of the faith due to a fuperior lord by name,
under whom the landlord himfelf was perhaps only a tenant
or vafal. But when the acknowledgment was made to the
abfolute fuperior himfelf, who was vafal to no man, it was
no longer called the oath of fealty, but the oath of allegi-
ance ; and therein the tenant fwore to bear faith to his fove-
reign lord, in oppofition to all men, without any faving or ex-
ception ; " contra omnes homines Jidelitatem fecit V Land held
by this exalted fpecies of fealty was called feudum ligiunty a
liege fee ; the vafals homines ligii, or liege men ; and the
fovereign their dominus ligtus, or liege lord. And when fove-
reign princes did homage to each other for lands held under
their refpeftive fovereignties, a diftinclion was always made
between Jtmple homage, which was only an acknowledgment
of tenure c ; and liege homage, which included the fealty
before mentioned, and the fervices confequent upon it.
Thus when our Edward III., in 1329, did homage to Philip
VI. of France, for his ducal dominions on that continent, it
was warmly difputed of what fpecies the homage was to be,
whether liege or fimple homage d . But with us in England,
it becoming a fettled principle of tenure, that all lands in the
kingdom are holden of the king as their fovereign and lord
paramount, no oath but that of fealty could ever be taken
to inferior lords, and the oath of allegiance was neceflarily
confined to the perfon of the king alone. By an eafy analogy
the term of allegiance was foon brought to fignify all other
engagements which are due from fubjedts to their prince,
as well as thofe duties which were fimply and merely territo-
r ,, Q-g j rial. And the oath of allegiance, as adminiftered for up-
wards of fix hundred years e , contained a promife " to be
ft 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,
3 1 Feud. 5, 6, 7. xx ii. 4zo.
b z Feud. 99. e Mirror, c. 3. 35. Fleta. 3. 16.
c 7 Rep. Calvin's cafe. 7. Britton. c. 49. 7 Rep. Calvin's cafe. 6.
d ^ Cart. 401. Mod. Un. I'M.
" without
Ch.io. 0f PERSONS. 368
" without defending him therefrom." Upon which fir
Matthew Hale f makes this remark ; that it was Ihort and
plain, not entangled with long or intricate claufes or declar-
ations, and yet is comprehenfive of the whole duty from
the fubjecl: to his fovereign. But, at the revolution, the
terms of this oath being thought perhaps to favour too much
the notion of non-refiftance, the prefent form was intro-
duced by the convention parliament, which is more general
and indeterminate than the former; the fubjecl: only promifing
" that he will be faithful and bear true allegiance to the
" king," without mentioning " his heirs," or fpecifying
in the lead wherein that allegiance confifts. The oath of
fupremacy is principally calculated as a renunciation of the
pope's pretended authority: and the oath of abjuration, in-
troduced in the reign of king William s , very amply fupplies
the loofe and general texture of the oath of allegiance ; it
recognifing the right of his majefty, derived under the aft
of fettlement ; engaging to fupport him to the utmoft of the
juror's power ; promifing to difclofe all traitorous confpiracies
againft him ; and exprefsly renouncing any claim of the de-
fceridants of the late pretender, in as clear and explicit terms
as the Englifh language can furnifh. This oath muft be
taken by all perfons in any office, truft, or employment j and
may be tendered by two juftices of the peace to any perfon
whom they (hall fufpeft of difaffedion h . And the oath of
allegiance may be tendered ' to all perfons above the age of
twelve years, whether natives, denizens, or aliens, either in
the court-leet of the manor, or in the flierifPs tourn, which is
the court-leet of the county.
BUT, befides thefe exprefs engagements, the law alfo holds
that there is an implied, original, and virtual allegiance,
owing from every fubjedt to his fovereign, antecedently to any [ 369
exprefs promife ; and although the fubject never fwore any
faith or allegiance in form. For as the king, by the very
defcent of the crown, is fully inverted with all the rights, and
bound to all the duties of fovereignty, before his coronation ;
f i Hal. P. C. 63. h Stat. i Geo.1. 0.13. 6 Geo.III. 0.53.
* Sut. 13 W. III. c. 6. 'a Ipft. ui. i Hal. P. C. 64.
K k 3 fo
369 The RIGHTS BOOK I.
fo the fubject is bound to his prince by an intrinfic allegiance,
before the fuperinducYion of thofe outward bonds of oath,
homage and fealty ; which were only inftituted to remind the
fubject of this his previous duty, and for the better fecuring
it's performance k . The formal profeffion therefore, or oath of
fubje&ion, is nothing more than a declaration in words of what
was before implied in law. Which occafions fir Edward Coke
very juflly to obferve *, that " all fubje&s are equally bounden
" to their allegiance, as if they had taken the oath ; becaufe
" it is written by the finger of the law in their hearts, and
" the taking of the corporal oath is but an outward declar-
" ation of the fame." The fanction of an oath, it is true, in
cafe of violation of duty, makes the guilt ftill more accumu-
lated, "by fuperadding perjury to treafon : but it does not in-
creafe the civil obligation to loyalty ; it only ftrengthens the
facial tie by uniting it with that of religion.
ALLEGiANCE,both exprefied and implied, is however diftin-
guifhed by the law into two forts or fpecies, the one natural,
the other local ; the former being alfo perpetual, the latter tem-
porary. Natural allegiance is fuch as is due from all men born
within the king's dominions immediately upon their birth m .
For, immediately upon their birth, they are under the king's
protection : at a time too, when (during their infancy) they
are incapable of protecting themfelves. Natural allegiance is
therefore a debt of gratitude ; which cannot be forfeited, can-
celled, or altered by any change of time, place, or circum-
ftance, nor by any thing but the united concurrence of the
legiflature n . An Englifhman who removes to France, or to
China, owes the fame allegiance to the king of England there
as at home, and twenty years hence as well as now. For it is
C 37 1 a principle of uriiverfal law , that the natural-born fubject of
one prince cannot by any adl of his own, no, not by fwearing
allegiance to another, put off or difcharge his natural alle-
giance to the former: for this natural allegiance was intrinfic
and primitive, and antecedent to the other ; and cannot be
" i Hal. P. C. 61. " a P. Wins. 124-
'alnft.121. i Hal. P. C. 68.
m 7 Rep. 7.
de veiled
Ch. io. /f PERSONS.
370
devefled without the concurrent act of that prince to whom it
was firft due. Indeed the natural-born fubjeft of one prince,
to whom he owes allegiance, may be entangled by fubjecfcing
himfelf absolutely to another : but it is his own ac~l that brings
him into thefe ftraits and difficulties, of owing fervice to two
mafters ; and it is unreafonable that, by fuch voluntary aft of
his own, he mould be able at pleafure to unloofe thofe bands
by which he is connected to his natural prince (i).
LOCAL allegiance is fuch as is due from an alien, or
ftranger born, for fo long time as he continues within the
king's dominion and protection p ; and it ceafes the inftant fuch
ftranger transfers himfelf from this kingdom to another (2).
P 7 Rep. 6.
( i ) Sir Michael Fofter obferves, that " the well-known maxim,
" which the writers upon our law have adopted and applied to
*' this cafe, nemo potejl exuere patr'tam, comprehendeth the whole
" do&rine of natural allegiance." Fq/l. 184. And this is exem-
plified by a ftrong inftance in the report which that learned judge
has given of ^Eneas Macdonald's cafe. He was a native of
Great Britain, but had received his education from his early in-
fancy in France, had fpent his riper years in a profitable employ-
ment in that kingdom, and had accepted a commiffion in the
fervice of the French king : a&ing under that commiffion, he was
taken in arms againft the king of England, for which he was in-
di&ed and convicted of high treafon ; but was pardoned upon
condition of his leaving the kingdom, and continuing abroad dur-
ing his life. Ib. 59.
This is certainly an extreme cafe ; and we mould have reafon
to think our law deficient in juftice and humanity, if we could dif-
cover any intermediate general limit to which the law could be
relaxed confidently with found policy or the public fafety.
( 2 ) Mr. J. Fofter inform us, that it was laid down in a meet-
ing of all the judges, that " if an alien, feeking the protection
" of the crown, and having a family and effefts here, mould, during
" a war with his native country, go thither, and there adhere
" to the king's enemies for purpofes of hojlility, he may be dealt
" with as a traitor." Foft. 185.
K k 4 Natural
370 The RIGHTS BOOK I.
Natural allegiance is therefore perpetual, and local temporary
only : and that for this reafon, evidently founded upon the
nature of government ; that allegiance is a debt due from
the fubjel, upon an implied contract with the prince, that
fo long as the one affords protection, fo long the other will
demean himfelf faithfully. As therefore the prince is always
under a conftant tie to protect his natural-born fubje&s at
all times and in all countries, for this reafon their allegiance
due to him is equally univerfal and permanent. But, on
the other hand, as the prince affords his protection to an
alien only during his refidence in this realm, the allegiance
of an alien is confined (in point of time) to the duration of
fuch his refidence, and (in point of locality) to the dominions
of the Britifh empire. From which confiderations fir Matthew
Hale q deduces this confequence, that, though there be
an ufurper of the crown, yet it is treafon for any fubjet,
while the ufurper is in full poffeffion of the fovereignty, to
C 37 1 ] P ra &if e anv thing againft his crown and dignity : where-
fore, although the true prince regain the fovereignty, yet
fuch attempts againft the ufurper (unlefs in defence or aid of
the rightful king) have been afterwards punifhed with death ;
becaufe of the breach of that temporary allegiance which
was due to him as king de facto. And upon this footing,
after Edward IV. recovered the crown, which had been long
detained from his houfe by the line of Lancafter, treafons
committed againft Henry VI. were capitally punifhed j though
Henry had been declared an ufurper by parliament.
THIS oath of allegiance, or rather the allegiance itfelf, is
held to be applicable not only to the political capacity of the
king, or regal office, but to his natural perfon and blood^
royal : and for the mifapplication of their allegiance, viz.
to the regal capacity or crown, exclufive of the perfon of the
king were the Spenfers banifhed in the reign of Edward II. r
^. ;l from hence arofe that principle of perfonal attachment
and affectionate loyalty which induced our forefathers (and
if occafion required, would doubtlefs induce their fons) to
i I Hal. P. C. 60. H Hal. P. C. 67.
hazard
Ch.io. of PERSONS. 371
hazard all that was dear to them, life, fortune, and family, in
defence and fupport of their liege lord and fovereign.
THIS allegiance then, both exprefs and implied, is the duty
of all the king's fubje&s, under the diftinc~lions here laid
down, of local and temporary, or univerfal and perpetual.
Their rights are alfo diftinguifhed by the fame criterions
of time and locality ; natural-born fubjects having a great
variety of rights, which they acquire by being born within
the king's ligeance, and can never forfeit by any diftance
of place or time, but only by their own mifbehaviour : the
explanation of which rights is the principal fubjet of the
two firft books of thefe Commentaries. The fame is alfo in
fome degree the cafe of aliens j though their rights are much
more circumfcribed, being acquired only by refidence here,
and loft whenever they remove. I mall however here endea-
vour to chalk out fome of the principal lines whereby they [ 372 ]
are diftinguiftied from natives, defcending to farther particu-
lars when they come in courfe.
AN alien born may purchafe lands or other eftates : but
not for his own ufe : for the king is thereupon entitled to
them s (3). If an alien could acquire a permanent property
in lands, he muft owe an allegiance, equally permanent with
that property, to the king of England ; which would pro-
bably be inconfiftent with that which he owes to his own
natural liege lord : befides that thereby the nation might in
time be fubjecT: to foreign influence, and feel many other
inconveniences. Wherefore by the civil law fuch contracts
were alfo made void : but the prince had no fuch advantage
of forfeiture thereby as with us in England. Among other
reafons which might be given for our conftitution, it feems
Co.Litt.2. * Cod. 1. 11. tit. S 5-
( 3 ) A woman alien cannot be endowed, unlefs (he marries by
the licence of the king ; and then (he fhall be endowed, by
8 Hen. V. No. 5. Rot. Parl. Harg. Co. Lift. 31. a. n. 9. Neither
can a hufband alien be tenant by the courtefy. 7 Co. 25.
to
372 The RIGHTS BOOK L
to be intended by way of punifhment for the alien's prefump-
tion, in attempting to acquire any landed property : for the
vendor is not affefted by it, he having refigned his right, and
received an equivalent in exchange. Yet an alien may acquire
a property in goods, money, and other perfonal eftate, or may
hire a houfe for his habitation (4): for perfonal eftate is of a
tranfitory and moveable nature; and, befides, this indulgence
to ftrangers is neceflary for the advancement of trade. Aliens
alfo may trade as freely as other people; only they are fubject
to certain higher duties at the cuftom-houfe : and there are
alfo fome obfolete ftatutes of Henry VIII., prohibiting alien
artificers to work for themfelves in this kingdom : but it is
generally held that they were virtually repealed by ftatute
5 Eliz. c. 7. (5) Alfo an alien may bring an acYion concerning
perfonal property, and may make a will, and difpofe of his
perfonal eftate w : not as it is in France, where the king at the
death of an alien is entitled to all he is worth, by the droit
d'aubaineorjus albinatus*, unlefs he has a peculiar exemption.
When I mention thefe rights of an alien, I muft be underftood
of alien friends only, or fuch whofe countries are in peace
with our's : for alien enemies have no rights, no privileges,
unlefs by the king's fpecial favour during the time of war (6).
WHEN I fay that an alien is one who is born out of the
king's dominions, or allegiance, this alfo muft be under-
u 7 Rep. 17. x A xvord derived from alibi natu$.
v Lutw. 34. Spelm. GI. 24.
(4) But a leafe of lands will be forfeited to the king. Co. Lltt. 2.
(5) Mr. Hargrave fays, the ftatute 32 Hen. VIII. c. 16. however
contrary it may feem to good policy and the fpirit of commerce,
ttill remains unrepealed. Co. Litt. z. n. 7. See alfo i Wood. 373.
(6) Until all ranfoms of captured mips and property were pro-
hibited by 22 Geo. III. c. 25., an alien enemy could fue in our
courts upon a ranfom bill. Lord Mansfield in a cafe of that kind
declared, that " it was found policy, as well as good morality, to
" keep faith with an enemy in time of war. This is a contract
" which arifes out of a ftate of hoftility, and is to be governed
** by the law of nations, and the eternal rules of juftice."
Doug. 625.
flood
Ch.io. of PERSONS. 372
flood with fome reflriaions. The common law indeed flood
abfolutely fo, with only a very few exceptions : fo that a
particular al of parliament became neceflary after the refto-
ration *, for the naturalization of children of his majefty's
" Englifh fubje&s, born in foreign countries during the late
" troubles." And this maxim of the law proceeded upon
a general principle, that every man owes natural allegiance
where he is born, and cannot owe two fuch allegiances, or
ferve two mafters, at once. Yet the children of the king's
embafladors born abroad were always held to be natural fub-
jets * : for as the father, though in a foreign country, owes
not even a local allegiance to the prince to whom he is fent ;
fo, with regard to the fon alfo, he was held (by a kind of
poftliminium) to be born under the king of England's allegi-
ance, reprefented by his father, the embaflador. To encou-
rage alfo foreign commerce, it was enacted by flatute
25 Edw. III. ft. 2. that all children born abroad, provided
both their parents were at the time of the birth in allegiance to
the king, and the mother had pafled the feas by her hufband's
confent, might inherit as if born in England : and accord-
ingly it hath been fo adjudged in behalf of merchants a . But
by feveral more modern ftatutes b thefe reftriclions are flill
farther taken of : fo that all children, born out of the king's
ligeance, \vhok fathers (or grandfathers by the father's fide)
were natural-born fubjels, are now deemed to be natural-
born fubje&s themfelves, to all intents and purpofes; unlefs
their faid anceftors were attainted, or banimed beyond fea,
for high treafon ; or were at the birth of fuch children in the
fervice of a prince at enmity with Great Britain (7). Yet the
x Stat.29 Car. 2. c. 6. Cent. 3.
2 7 Rep. 18. b 7 Ann. 0.5. 4 Geo. II. c. 41. and
a Cro. Car. 601. Mar. 91. Jenk. 13 Geo. 3. c. ai.
( 7 ) All thefe exceptions to the common law, introduced by the
legiflature, are in cafes where the father or grandfather is a
natural-born fubjeft ; but there is no provifion made for the chil-
dren born abroad of a mother, a natural-born fubjeft, married to
an alien. And in a late cafe, in which it was ftated that the mo-
ther
373 The RIGHTS BOOK I.
grandchildren of fuch anceftors {hall not be privileged in re-
fpet of the alien's duty, except they be proteflants, and ac-
C 374 3 tually refide within the realm ; nor (hall be enabled to claim
any eftate or intereft, unlefs the claim be made within five
years after the fame mall accrue.
THE children of aliens, born here in England, are, gene-
rally fpeaking, natural-born fubje&s (8), and entitled to all
the privileges of fuch. In which the conftitution of France
differs from ours ; for there, by their jus albinatus, if a child
be born of foreign parents, it is an alien (9).
A DENIZEN is an alien born, but who has obtained ex
donatione legis letters patent to make him an Englifh fubjet :
a high and incommunicable branch of the royal prerogative d .
A denizen is in a kind of middle ftate, between an alien and
natural-born fubjec~t, and partakes of both of them. He
may take lands by purchafe or devife, which an alien may not ;
but cannot take by inheritance e : for his parent, through
whom he mud claim, being an alien, had no inheritable blood,
and therefore could convey none to the fon ( i o). And, upon a
c Jenk. Cent. 3. cites treafure /ran- d 7 Rep. Calvin's cafe. 25.
eeit, 3ia. II Rep. 67.
ther of the plaintiff was an Englifh woman, who married a fubject
of France, and had a fon born to him in France, it was decided
that that fon could not inherit his mother's lands in England.
Count Duroure v. Jones, 4 T. R. 300.
(8) Unlefs the alien parents are aftirig in the realm as enemies;
for my lord Coke fays, it is not ccelum nccfolum, but their being
born within the allegiance, and under the protection of the king.
7 Co. 1 8. a.
(9) The late learned Vinerian profeflbr informs us, that, "in
" this refpeft there is not any difference between our laws and
" thofe of France. In each country birth confers the right of
" naturalization." i Woodd. 386.
(10) By the n & 12 W. III. c. 6. natural-born fubjects may
derive a title by defcent through their parents or any anceftor,
though they are aliens. But by 25 Geo. II. c. 39. this reftric-
Ch. io. ^PERSONS. 374
like defect of hereditary blood, the ifiue of a denizen, born
before denization, cannot inherit to him ; but his iflue born
after may f . A denizen is not excufed* from paying the
alien's duty, and fome other mercantile burthens. And no
denizen can be of the privy council, or either houfe of par-
liament, or have any office of truft, civil or military, or be
capable of any grant of lands, &c. from the crown h .
NATURALIZATION cannot be performed but by act of
parliament : for by this an alien is put in exactly the fame
ftate as if he had been born in the king's ligeance ; except
only that he is incapable, as well as a denizen, of being a
member of the privy council or parliament, holding offices,
grants, &c. ' (i i) No bill for naturalization can be received
in either houfe of parliament, without fuch difabling claufe in
it j ; nor without a claufe difabling the perfon from obtaining
any immunity in trade thereby, in any foreign country ; un-
lefs he fhall have refided in Britain for feven years next after
the commencement of the feffion in which he is naturalized k .
Neither can any perfon be naturalized or rellored in blood,
unlefs he hath received the facrament of the Lord's fupper
within one month before the bringing in of the bill ; and
unlefs he alfo takes the oaths of allegiance and fupremacy in
the prefence of the parliament \ But thefe provifions have
' Co. Liu. 8. Vaugh. 385. J Stat. I Geo. I. c. 4.
Stat. az Hen. VIII. c. 8. " Stat. 14 Geo. III. 084.
h Stat. iaW.HI. c.3. ' Stat. 7 Jac. I. c. a.
1 Ibid.
tion is fuperadded, viz. that no natural-born fubjeft fhall derive a
title, though an alien parent or anceftor, unlefs he be born at the
time of the death of the anceftor who dies feifed of the eftate which
he claims by defcent, with this exception, that if a defcent (hall
be caft upon a daughter of an alien, it fhall be divefted in favour
of an after-born fon ; and in cafe of an after-born daughter or
daughters only, all the fifters fhall be co-parceners.
( 1 1 ) This ftatute 1 2 W. III. c. 2. was paffed from a jealoufy of
king William's partiality to foreigners.
9 been
374 The RIGHTS BOOK I.
been ufually difpenfed with by fpecial afts of parliament,
previous to bills of naturalization of any foreign princes or
princefles m .
[ 375 ] THESE are the principal diftinctions between aliens, deni-
zens, and natives : diftinctions, which it hath been frequently
endeavoured fince the commencement of this century to lay
almoft totally afide, by one general naturalization act for all
foreign proteftants. An attempt which was once carried
into execution by the ftatute 7 Ann. c. 5. ; but this, after three
years experience of it, was repealed by the ftatute 10 Ann.
c. 5. except one claufe, which was juft now mentioned, for
naturalizing the children of Englifh parents born abroad.
However, every foreign feaman, who in time of war ferves
two years on board an Englifh fhip by virtue of the king's
proclamation, is ipfo fafto naturalized, under the like reftric-
tions as in ftatute izW. III. c. 2. n j and all foreign pro-
teftants and Jews, upon their reiiding feven years in any
of the American colonies, without being abfent above two
months at a time, and all foreign proteftants ferving two
years in a military capacity there, or being three years em-
ployed in the whale fifhery, without afterwards abfenting
themfelves from the king's dominions for more than one
year, and none of them falling within the incapacities de-
clared by ftatute 4 Geo. II. c. 21. (hall be (upon taking the
oaths of allegiance and abjuration, or, in fome cafes, an
affirmation to the fame effect) naturalized to all intents and
purpofes, as if they had been born in this kingdom ; except
as to fitting in parliament or in privy council, and holding
offices or grants of lands, &c. from the crown, within the
kingdoms of Great Britain or Ireland . They therefore are
admiffible to all other privileges which proteftants or Jews
born in this kingdom are entitled to. What thofe privileges
m Stat. 4 Ann. c. i. 7 Geo. I. c. 3. Stat. 13 Gc-o. II. c. 7. 20 Geo. II.
9 Oeo.II. c. 34. 4 Geo. HI. c. /;. c. 44. 22 Geo. II. 0.45. 2 Geo. III.
" Srst. 13 Geo, II. c. 3. * c. 25. 13 Geo. III. c. 2j.
1 1 arc,
Ch. io. of PERSONS. 375
are, with refpet to Jews p in particular, was the fubjeft of
very high debates about the time of the famous Jew-bill 1 ;
which enables all Jews to prefer bills of naturalization in
parliament, without receiving the facrament, as ordained by
ftatute 7 Jac. I. It is not my intention to revive this conrro-
verfy again ; for the at lived only a few months, and was
then repealed r : therefore peace be now to it's manes.
P A pretty accurate account of the in Molloy de jure maritime, b. 3. c. 6.
Jews til! their banifhment in 8 Edw. I. 1 Stat. a6 Geo. II. c. 26.
mav be found in Prynne's tfemurrer, and r Stat. 27 Geo. II. c. i.
376 The RIGHTS BOOK I.
CHAPTER THE ELEVENTH.
OF THE CLERGY.
'T'HE people, whether aliens, denizens, or natural-born'
fubjefts, are divifible into two kinds ; the clergy and
laity : the clergy comprehending all perfons in holy orders,
and in ecclefiaftical offices, will be the fubject of the follow-
ing chapter.
THIS venerable body of men, being feparate and fet apart
from the reft of the people, in order to attend the more clofely
to the fervices of Almighty God, have thereupon large privi-
leges allowed them by our municipal laws : and had formerly
much greater, which were abridged at the time of the re-
formation on account of the ill ufe which the popifh clergy
had endeavoured to make of them. For, the laws having
exempted them from almoft every perfonal duty, they at-
tempted a total exemption from every fecular tie. But it is
obferved by fir Edward Coke a , that, as the overflowing of
waters doth many times make the river to lofe its proper
channel, fo in times paft ecclefiaftical perfons, feeking to
extend their liberties beyond their true bounds, either loft
or enjoyed not thofe which of right belonged to them. The
perfonal exemptions do indeed for the moft part continue.
A clergyman cannot be compelled to ferve on a jury, nor to
appear at a court-leet or view of frank-pledge j which al-
moft every other perfon is obliged to do b : but if a layman is
C 377 ] fu mmoned on a j ur y> and before the trial takes orders, he {hall
notwithftanding appear and be fworn c . Neither can he be
a Inft. 4. b p. N. B. 160. a Inft. 4. c 4 Leon. 190.
chofen
Ch. ii. of PERSONS. 377
chofen to any temporal office ; as bailiff, reeve, conftable,
or the like, in regard of his own continual attendance on
the facred fun&ion d . During his attendance on divine fer-
vice he is privileged from arrefts in civil fuits e (i). In cafes
alfo of felony, a clerk in orders fhall have the benefit of his
clergy, without being branded in the hand ; and may likewife
have it more than once (2) : in both which particulars he is
diftinguifhed from a layman f . But as they have their privi-
leges, fo alfo they have their difabilities, on account of their
fpiritual avocations. Clergymen, we have feen g , are inca-
pable of fitting in the houfe of commons (3) ; and by ftatute
21 Hen. VIII. c. 13. are not (in general) allowed to take
any lands or tenements to farm, upon pain of io/. per
month, and total avoidance of the leafe (4) j nor upon like
Finch. L. 88. ' a Inft. 637. Stat. 4 Hen. VII.
' Stat. 50 Ed.IIL c. 5. 1 Ric. II. c. 13. & i Edw. VI. c. 14.
c. 1 6. s page IJS-
1 i ) That is, for a reafonable time, eundo, redeundo, et morando>
to perform divine fervice. 12 Co. 100.
( 2 ) This is a peculiar privilege of the clergy, that fentence of
death can never be pafled upon them for any number of man-
(laughters, bigamies, fimple larcenies, or other clergyable offences ;
but a layman, even a peer, may be oufted of clergy, and will be
fubject to the judgment of death upon a fecond conviction of a
clergyable offence ; for if a layman has once been convicted of
manflaughter, upon production of the conviction he may afterwards
fuffer death for bigamy, or any other felony, within clergy, or
which would not be a capital crime to another perfon not fo cir-
cumftanced. But for the honour of the clergy, there are few or
no in fiances in which they have had occafion to claim the benefit
of this privilege. See 4 vol. c. 28.
(3) See P- '75- n. 37 .a*r.
(4) But if they have not fufficient glebe, they may take a farm
for the neceflary expences and confumption of their houfeholds,
21 Hen. VIII. c. 13. /. 8. but now, by the 43 Geo. III. c. 84.
they are not allowed to hold any farm without the confent of the
bifhop, but with his confent they are not fubject to the penalties
of the 2 1 Hen. VIII.
. I. L 1 pam
377 The RIGHTS BOOK I.
pain to keep any tanhoufe or brewhoufe (5) ; nor fhall
engage in any manner of trade, nor fell any merchandize,
under forfeiture of the treble value (6). Which prohibition
is confonant to the canon law.
- i
IN the frame and conftitution of ecclefiaftical polity there
are divers ranks and degrees ; which I fhall confider in their
refpeftive order, merely as they are taken notice of by the
fecular laws of England ; without intermeddling with the
canons and conftitutions by which the clergy have bound
themfelves. And under each divifion I (hall confider,
I. The method of their appointment ; 2. Their rights and
duties ; and, 3. The manner wherein their character or
office may ceafe.
I. AN arch-bimop or bifhop is elected by the chapter of
his cathedral church, by virtue of a licence from the crown.
Election was, in very early times, the ufual mode of eleva-
tion to the epifcopal chair throughout all Chriftendom ; and
this was promifcuoufly performed by the laity as well as the
clergy h : till at length it becoming tumultuous, the empe-
rors and other fovereigris of the refpe&ive kingdoms of Eu-
[ 378 ] rope took the appointment in fome degree into their own
- - hands ; by referving to themfelves the right of confirming
thefe elections, and of granting inveftiture of the temporal-
ties, which now began almoft univerfally to be annexed to
this fpiritual dignity ; without which confirmation and in-
veftiture, the elefted bifhop could neither be confecrated nor
h per clcrum et populum. Palm. 25. a Roll. Rep. 102. Mat. Paris, A.D. 1095.
(5) The fingular prohibition to keep a tanhoufe probably ori-
ginated from a praftice peculiar to the time.
(6) Though a clergyman is fubjeft to this penalty for trading,
yet his contracts are valid, and he is liable to be made a bankrupt.
Cook, Bankr. 33.
By the 43 Geo; III. c. 84. f. 6. the clergy may buy and fell
corn and cattle, the produce of their farms, or fuch as are necef-
fary for their cultivation, provided they do not buy or fell in per-
fon in any fair, market, or public fale.
receive
Ch. ii. of PERSONS. 378
receive any fecular profits. This right was acknowledged in
the emperor Charlemagne, A. D. 773, by pope Hadrian I.,
and the council of Lateran ', and univerfally exercifed by
other chriflian princes : but the policy of the court of Rome
at the fame time began by degrees to exclude the laity from
any {hare in thefe elections, and to confine them wholly to
the clergy, which at length was completely effected ; the mere
form of election appearing to the people to be a thing of little
confequence, while the crown was in poffeffion of an abfo-
lute negative, which was almoft equivalent to a direct right
of nomination. Hence the right of appointing to bifhop-
ricks is faid to have been in the crown of England k (as
well as other kingdoms in Europe) even in the Saxon times ;
becaufe the rights of confirmation and invefliture were in
effect (though not in form) a right of complete donation 1 .
But when, by length of time, the cuftom of making elec-
tions by the clergy only was fully eftablifhed, the popes
began to except to the ufual method of granting thefe invef-
titures, which was per annulum et baculum, by the prince
delivering to the prelate a ring, and paftoral ftaff or crofier :
pretending that this was an encroachment on the church's
authority, and an attempt by thefe fymbols to confer a fpi-
ritual jurifdiction : and pope Gregory VII., towards the clofe
of the eleventh century, publifhed a bull of excommunica-
tion againft all princes who Ihould dare to confer invefti-
tures, and all prelates who mould venture to receive them m .
This was a bold ftep towards effecting the plan then adopted
by the Roman fee, of rendering the clergy entirely independ- [ 379 ]
ent of the civil authority : and long and eager were the con-
tefts occafioned by this papal claim. But at length, when
the emperor Henry V. agreed to remove all fufpicion of en*
croachment on the fpiritual character, by conferring invefti-
1 Deeret. I. dlfl. 63. c. 22. " hulum et latulum regtt curia fr
k Palm. a8i fua complacentla tonferelat" Ptntt
lu Nulla eledlo praelatirum (funt tterieoj et tnonactot fult ete}i,ftd eUe-
verla Ingulf hi) erat mere libera et turn rege fojtulakant. SeMen. 7<*.
" canoniea ; fed ttanet dignitatts, tarn Ang. /.I. 39.
" efifcoforuft quant al!>atum, per an- m Dttret.Z. tauf. 1 6. yv. 7- *. li '3
L 1 2 tures
379 The RIGHTS BOOK I.
tures for the future per fceptrum and not per annulum et lacu-
lum j and when the kings of England and France confented
alfo to alter the form in their kingdoms, and receive only
homage from the bimops for their temporalities, inftead of in-
vefting them by the ring and crofier; the court of Rome found
it prudent to fufpend for a while it's other pretenfions n .
THIS conceffion was obtained from king Henry the firfl in
England, by means of that obftinate and arrogant prelate,
arch-bifhop Anfelm : but king John (about a century after-
wards), in order to obtain the protection of the pope againft
his difcontented barons, was alfo prevailed upon to give up
by a charter, to all the monafteries and cathedrals in the
kingdom, the free right of electing their prelates, whether
abbots or bifhops : referving only to the crown the cuftody
of the temporalities during the vacancy ; the form of granting
a licence to elect (which is the original of our conge d'e/lire),
on refufal whereof the electors might proceed without it ;
and the right of approbation afterwards, which was not
to be denied without a reafonable and lawful caufe p . This
grant was exprefsly recognized and confirmed in king
John's magna charta q , and was again eftabliftied by flatute
25Edw.HI. ft. 6. $3.
BtJT by ftatute 25 Hen. VIII. c. 20. the antient right of
nomination was, in effect, reftored to the crown (7) : it being
" Mod. Un. Hift. xxv. 363. axix. P M. Paris, A. D. 1214. i Rym.
*1J- ' , .. fond. 198.
M. Paris. A. .1107. i cap. i. edit. Oxoa. 1759.
(7) This ftatute was afterwards repealed by i Edw. VI. c. 2.
which enacted that all bifhopricks fhould be donative as formerly.
It Hates in the preamble that thefe elections are in very deed no
elections ; but only by a writ of conge d'el'tre have colours, (hadows,
or pretences of eleftion. I Burn. He. L. 183. This is certainly
good fenfe. For the permiffion to ele where there is no power to
reject can hardly be reconciled with the freedom of ele&ion. But
this ftatute was afterwards repealed by i Ma. ft. 2. c. 20. and
other ftatutes. 1 2 Co. 7. But the bifhopricks of the new found-
Ch. ii. ^PERSONS. 379
enacted that, at every future avoidance of a bifhoprick, the
king may fend the dean and chapter his ufual licenfe to pro-
ceed to election ; which is always to be accompanied with a
letter miffive from the king, containing the name of the per-
fon whom he would have them elect : and, if the dean and
chapter delay their election above twelve days, the nomin- [ 380
ation lhall devolve to the king, who may by letters patent ap-
point fuch perfon as he pleafes. This election or nomin-
ation, if it be of a bifhop, muft be fignified by the king's
letters patent to the arch-bifhop of the province : if it be of
an arch-bifhop, to the other arch-bifhop and two bifhops, pr
to four bifhops ; requiring them to confirm, inveft, and con-
fecrate the perfon fo elected : which they are bound to per-
form immediately, without any application to the fee of
Rome. After which the bifhop elect (hall fue to the king
for his temporalties, mail make oath to the king and none,
other, and (hall take reflitution of his fecular pofleffions out
of the king's hands only (8). And if fuch dean and chapter
do not elect in the manner by this act appointed, or if fuch
arch-biftiop or biftiop do refufe to confirm, inveft, and con-
fecrate fuch bifhop elect, they (hall incur all the penalties of
a praemunire (9).
ation were always donative. Harg. Co. Litt. 134. As alfo are all
the Irifh bifhopricks by the 2 Eliz. c. 4. Irffijlatutes,
(8) It is a prevailing vulgar error, that every bifhop, before he
accepts the bifhoprick which is offered him, affefts a maiden coy-
nefs, and anfwers nolo epifcopari. The origin of thefe words and
this notion I have not been able to difcover j the bifhops certainly
give no fuch refufal at prefent, and I am inclined to think they
never did at any time in this country.
(9) It is directed in the form of confecrating bifliops, confirmed
by various ftatutes fince the reformation, that a bifhop when con-
fecrated muft be full thirty years of age. There feems to have been
no reftri&ion of this kind in ancient times ; for bifhop Godwin
informs us that George Nevile, the brother of the Earl of War-
wick the king-maker, was chancellor of Oxford, et in epifcopum
Exonienfem confecratm ejl anno I45f nondum annos natos viginti.
Anno deinde 1460 (id quod jure mirere } fummus Angliit faSus eft can-
cettarius, A few years afterwards he was tranflated to the arch-
L 1 3 bifhoprick
380 The RIGHTS BOOK I.
AN arch-biftiop is the chief of the clergy in a whole pro-
vince ; and has the infpeclion of the bifhops of that pro-
vince, as well as of the inferior clergy, and may deprive
them on notorious caufe r (10). The arch-bifliop has alfo his
own diocefe, wherein he exercifes epifcopal jurifditlion j as
in his province he exercifes archiepifcopal. As arch-biftiop
he, upon receipt of the king's writ, calls the bimops and
clergy of his province to meet in convocation ; but without
the king's writ he cannot aflemble them 3 . To him all ap-
peals are made from inferior jurifdiclion s within his province ;
and, as an appeal lies from the biftiops in perfon to him in
perfon, fo it alfo lies from the confiftory courts of each dio-
cefe to his archiepifcopal court. During the vacancy of any
fee in his province, he is guardian of the fpiritualties there.
of, as the king is of the temporalties ; and he executes all
ecclefiaftical jurisdiction therein. If an archiepifcopal fee
be vacant, the dean and chapter are the fpiritual guardians,
ever fince the office of prior of Canterbury was abolifhed at
the reformation *. The arch-bifhop is entitled to prefent by
lapfe to all the ecclefiaflical livings in the difpofal of his
[ 381 ] diocefan bimops, if not filled within fix months. And the
arch-bifhop has a cuftomary prerogative, when a bifhop is
T Lord Raym. 541. S 4 Inft. 32Z, 313. l ^ Roll. Abr. 33.
bifhoprick of York. Hoc fedente epifcopus SanSi Andrea in Scotia,
archiepifcopus per Sixfum quartum creatus eft, jujjis ill't duodecim ep'if-
cop'u illius gcntis fubejfe, qui haflenus archiepifcopo Eboracenjis fuffra-
ganei cenfebantur. Reclamante quidem Eboracenji, fed frujlra ; affe-
rente ponttfice, minimc convenire, ut tile Scotia Jit metropolitanus, qui,
f ropier crebra inter Scotos ac Anglos bella, Scotis plerumque ho/lis Jit
capitalis. Godw. Comm. de Praeful. 693.
( 10) In the 1 1 W. III. the bifhop of St. David's was deprived
for fimony, and other offences, in a court held at Lambeth before
the arch-bifhop, who called to his affiftance fix other bifhops.
The bifhop of St. David'a appealed to the delegates, who affirmed
the fentence of the arch-bifhop ; and after feveral fruitlefs appli-
cations to the court of king's bench and the houfe of lords, he
was at lafl obliged to fubmit to the judgment. Lord Raym. 541.
i Burn. EC. L. 212.
con-
Ch. ii. of PERSONS. 381
confecrated by him, to name a clerk or chaplain of his own
to be provided for by fuch fuffragan bifhop ; in lieu of which
it is now ufual for the bifhop to make over by deed to the
arch-bifhop, his executors and afligns, the next prefentation
of fuch dignity or benefice in the bifhop's difpofal within
that fee, as the arch-bifhop himfelf fhall choofe ; which
is therefore called his option*: which options are only bind-
ing on the bifhop himfelf who grants them, and not on his
fucceflbrs ( 1 1 ). The prerogative itfelf feems to be derived
from the legatine power formerly annexed by the popes to the
metropolitan of Canterbury w . And we may add, that the
papal claim itfelf (like moft others of that encroaching fee)
was probably fet up in imitation of the imperial prerogative
called primae or primariae preces ; whereby the emperor ex-
ercifes, and hath immemorially exercifed x , a right of naming
to the firft prebend that becomes vacant after his acceffioii
in every church of the empire y . A right that was alfo exer-
cifed by the crown of England in the reign of Edward I. z ;
u Cowel's interp. tit. option. Karl, quod Roberto de Icard fenjtt-
w Sherlock of options, I. neat fuam, quam ad freces reglt frae-
x Gcldaft. ctnfl. Imper. torn. 3. <ti&o Roberto concept, de caeterofolvat ;
fage 406. et de froxima ccclefia vacatura de eol-
* Dufrefne, V. 806. Mod. Univ. latione praedi&i efifcefi, quam iffe Ro-
Hift. xxix. 5. bertus acceptatierit, rejfriciat. Hrev.
z Rex, &c.falutem,Scribatiscpifcopo H Edw. I. 3 Pry n. 1264.
( 1 1 ) The confequence is, that the arch-bifhop never can have
more than one option at once from the fame diocefe. Thefe options
become the private patronage of the arch-bifhop, and upon his
death are tranfmitted to his perfonal representatives ; or the arch-
bifhop may direct by his will whom, upon a vacancy, his execu-
tor fhall prefent ; which direction, according to a decifion in the
houfe of lords, his executor is compellable to obferve. I Burn. JEc.
L. 226. If a bifhop dies during the vacancy of any benefice within
his patronage, the prefentation devolves to the crown ; fo likewife
if a bifhop dies after an option becomes vacant, and before the
arch-bifhop or his representative has prefented, and the clerk is in-
ftituted, the crown pro hoc vice will be entitled to prefent to that
dignity or benefice. Amb. i o I . For the grant of the option by the
bifhop to the arch-bifhop has no efficacy beyond the life of the
bifhop.
L 1 4 and
381 The RIGHTS BOOK I.
and which probably gave rife to the royal corodies which
were mentioned in a former chapter*. It is likewife the pri-
vilege, by cuftom, of the arch-bifhop of .Canterbury, to crown
the kings and queens of this kingdom (12). And he hath
alfo by the ftatute 25 Hen. VIII. c. 2 1 . the power of granting
difpenfations in any cafe, not contrary to the holy fcriptures
and the law of God, where the pope ufed formerly to grant
them; which is the foundation of his granting fpecial licenfes
to marry at any place or time, to hold two livings, and
the like (13): and on this alfo is founded the right he
exercifes of conferring degrees (14)} in prejudice of the two
univerfities b .
382 1 THE power and authority of a bifhop, befides the admi-
jiiftration of certain holy ordinances peculiar to that facred
order, confift principally in infpefting the manners of the
people and clergy, and punching them in order to reform-
* ch. 8. p. 284. b Sec the bifhop of Chefter's cafe. Oxon. 1741.
(12) It is faid that the arch-bifhop of York has the privilege
to crown the queen -confort, and to be her perpetual chaplain.
j Burn. EC. L. 178.
(13) When the dominion of the pope was overturned in this
country, this prerogative of difpenfing with the canons of the
church was transferred by that ftatute to the arch-bimop of Can-
terbury in all cafes in which difpenfions were accuftomed to be
obtained at Rome ; but, in cafes unaccuftomed, the matter fhall be
referred to the king in council. The pope could have difpenfed
with every ecclefiaftical canon and ordinance. But in fome of the
cafes where the arch-bifliop alone has authority to difpenfe, his dif-
penfation with the canon, as to hold two livings, muft be confirmed
under the great feal.
(14) But although the arch-bifhop can confer all the degrees
which are taken in the univerfities, yet the graduates of the two
univerfities, by various afts of parliament and other regulations,
are entitled to many privileges which are not extended to what is
called a Lambeth degree : as, for inftance, thofe degrees which are
a qualification for a difpenfation to hold two livings are confined
by 21 Hen. VIII. c. 13. 23. to the two univerfities.
ation,
Ch. ii. 0f PERSONS. 382
ation, bjr ecclefiaftical cenfures. To this purpofe he has fe-
veral courts under him, and may vifit at pleafure every part
of his diocefe. His chancellor is appointed to hold his
courts for him, and to affift him in matters of ecclefiaftical
law ; who, as well as all other ecclefiaftical officers, if lay or
married, muft be a doftor of the civil law, fo created in fome
univerfity c . It is alfo the bufinefs of a bifhop to inftitute,
and to direct induction to all ecclefiaftical livings in his
diocefe.
ARCH-BISHOPRICKS and bifliopricks may become void by
death, deprivation for any very grofs and notorious crime,
and alfo by refignation. All refignations muft be made to
fome fuperior d . Therefore a bifhop muft refign to his me-
tropolitan ; but the arch-bifhop can refign to none but the
king himfelf (15).
II. A DEAN and chapter are the council of the bifhop, to
affift him with their advice in affairs of religion, and alfo in
the temporal concerns of his fee 6 . When the reft of the
clergy were fettled in the feveral parifhes of each diocefe, (as
hath formerly f been mentioned,) thefe were referved for the
celebration of divine fervice in the bifhop's own cathedral ;
and the chief of them, who prefided over the reft, obtained
the name of decanus or dean, being probably at firft appointed
to fuperintend ten canons or prebendaries.
ALL antient deans are elected by the chapter, by conge
d'e/lire from the king, and letters miffive of recommendation j
c Stat. 37 Hen. VIII. e. 17, e 3 Rep. 75. Co. Litt. 103. 300.
" Gibf. cod. 8a. f page 113, 114.
(15) The following are fome of the popular diftin&ions between
arch-bifliops and bifhops. The arch-bifhops have the titles 'and
ftyles of Grace, and mojl reverend father in God by Divine Pro-
vidence ; the bifhops thofe of lord t and right reverend father in God
by Divine permijfion, Arch-bifhops are enthroned, inthronizati ;
bifhops inftalled,
in
382 The RIGHTS BOOK I.
in the fame manner as biftiops (16) ; but in thofe chapters that
were founded by Henry VIII. out of the fpoils of the diflblved
monafteries (17)) the deanery is donative, and the inflallation
[ 383 ] merely by the king's letters patent*. The chapter, confiding
of canons or prebendaries, are fometimes appointed by the
king, fometimes by the biftiop, and fometimes elected by
each other.
THE dean and chapter are, as was before obferved, the
nominal electors of a bifhop. The bifhop is their ordi-
nary (18) and immediate fuperior ; and has, generally fpeak-
ing, the power of vifiting them, and correcting their ex-
cefles and enormities. They had alfo a check on the bifhop
at common law : for till the ftatute 32 Hen. VIII. c. 28. his
grant or leafe would not have bound his fucceffors unlefs
confirmed by the dean and chapter h .
DEANERIES and prebends may become void, like a bifhop-
rick, by death, by deprivation, or by refignation to either
the king or the bifhop '. Alfo I may here mention once
for all, that if a dean, prebendary, or other fpirkual perfon,
be made a bifliop, all the preferments of which he was be-
Gibf. cod. 173. h Co. Litt. 103. ' Plowd.498.
(16) See a very learned note, containing a full hiftory of the
election, prefentation, or donation to deaneries, by Mr. Hargrave
in Co. Litt. 95.
(17) The new deaneries and chapters to old bifhopricks are
eight, viz. Canterbury, Norwich, Winchefter, Durham, Ely,
Rochefter, Worcefter, and Carlifle ; and five new bifhopricks
with new deaneries and chapters annexed were created, viz. Peter-
borough, Chefter, Gloucefter, Briftol, and Oxford. Harg. Co.
Litt. 95. n. 3.
(18) The bifhop is generally called the ordinary, but the ordi-
nary has a more extenfive fignification, as it includes every ecclefi-
aftical judge who has the regular ordinary jurifdiction independent
of another, i Burn. EC. L. 22. Co. Litt. 344.
fore
Ch. zi. of PERSONS. 383
fore poflefled are void , and the king may prefent to them in
right of his prerogative royal. But they are not void by the
election, but only by the confecration J .
III. AN arch-deacon hath an ecclefiaftical jurifdi&ion,
immediately fubordinate to the bifhop, throughout the whole
of his diocefe, or in fome particular part of it. He is ufually
appointed by the bifhop himfelf ; and hath a kind of epifcopal
authority, originally derived from the biftiop, but now inde-
pendent and diftinft from his k . He therefore vifits the
clergy, and has his feparate court for punifhment of offenders
by fpiritual cenfures, and for hearing all other caufes of
ecclefiaftical cognizance.
IV. THE rural deans are very antient officers of the
church l , but almoft grown out of ufe ; though their dean-
eries ftill fubfift as an ecclefiaftical divifion of the diocefe, or
arch-deaconry. They feem to have been deputies of the [ 384 "I
bifhop, planted all round his diocefe, the better to infpecl;
the conduft of the parochial clergy, to inquire into and re-
port dilapidations, and to examine the candidates for con-
firmation, and armed, in minuter matters, with an inferior
degree of judicial and coercive authority" 1 .
V. THE next, and indeed the moft numerous, order of
men, in the fyftem of ecclefiaftical polity, are the parfons
and vicars of churches: in treating of whom I fhall firft
mark out the diftinftion between them ; fhall next obferve
the method by which one may become a parfon or vicar ;
fhall then briefly touch upon their rights and duties j and
fhall, laftly, mew how one may ceafe to be either.
A PARSON, /*r/0a eccleftae t is one that hath full pofleffion
of all the rights of a parochial church. He is called parfon,
per/ona, becaufe by his perfon the church, which is an invifible
i Bro. Abr. t. frefentatione. 3. 6l. k I Burn. eccl. law. 68, 69.
Cro. Eliz. 541. 790. a Roll. Abr, 352. ' Kennett. par. antiq. 633.
4 Mod. 304. Salk. 137. m Gibf. cod. 978. 1550.
body,
384 The RIGHTS BOOK I.
body is reprefented : and he is in hhnfelf a body corporate,
in order to proteft and defend the rights of the church (which
he perfonates) by a perpetual fucceffion n . He is fometimes
called the retor or governor of the church : but the appel-
lation of parfon (however it may be depreciated by familiar,
clownifh, and indifcriminate ufe,) is the moft legal, mod
beneficial, and moft honourable title that a parifh prieft can
enjoy; becaufe fuch a one, (fir Edward Coke obferves,) and
he only, is faid vicetn feu perfonam ecclefiae gerere. A parfon
has, during his life, the freehold in himfelf of the parfonage
houfe, the glebe, the tithes, and other dues. But thefe are
fometimes appropriated , that is to fay, the benefice is perpe-
tually annexed to fome fpiritual corporation, either fole or ag-
gregate, being the patron of the living j which the law efteems
equally capable of providing for the fervice of the church, as
any fingle private gentleman. This contrivance feems to have
fprung from the policy of the monaftic orders, who have never
been deficient in fubtile inventions for the increafe of their own
power and emoluments. At the firft eftablifhment of paro-
chial clergy, the tithes of the parifh were diftributed in a four-
fold divifion ; one for the ufe of the biQiop, another for main-
C 385 ] taining the fabric of the church, a third for the poor, and the
fourth to provide for the incumbent. When the fees of the
bifhops became otherwife amply endowed, they were prohi-
bited from demanding their ufual fhare of thefe tithes, and the
divifion was into three parts only. And hence it was inferred
by the monafleries, that a fmall part was fufficient for* the offi-
ciating prieft ; and that the remainder might well be applied
to the ufe of their own fraternities, (the endowment of which
was conftrued to be a work of the moft exalted piety,) fubje&to
the burthen of repairing the church, and providing for its con-
ftantfupply. And therefore they begged and bought, for mafles
and obits, and fometimes even for money, all the advowfons
within their reach, and then appropriated the benefices to the
ufe of their own corporation. But, in order to complete fuch
appropriation effectually, the king's licence, and confent of the
p Co. Liu. 300,
bifliop,
Ch. ii. ^PERSONS. 385
bifhop, muft firft be obtained : becaufe both the king and the
bimop may fome time or other have an intereft, by lapfe, in the
prefentation to the benefice ; which can never happen if it be
appropriated to the ufe of a corporation, which neve dies : and
alfo becaufe the law repofes a confidence in them, that they
will not confent to any thing that fhall be to the prejudice of
the church. The confent of the patron alfo is neceflarily im-
plied : becaufe (as was before obferved) the appropriation can
be originally made to none, but to fuch fpiritual corporation,
as is alfo the patron of the church ; the whole being indeed
nothing elfe, but an allowance for the patrons to retain the
tithes and glebe in their own hands, without prefenting any
clerk, they themfelves undertaking to provide for the fervice
of the church . When the appropriation is thus made, the
appropriators and their fucceflbrs are perpetual parfons of the
church ; and muft fue and be fued, in all matters concerning
the rights of the church, by the name of parfons p .
THIS appropriation may be fevered, and the church be-
come difappropriate, two ways : as firft, if the patron or
appropriator prefents a clerk, who is inftituted and induted
to the parfonage : for the incumbent fo inftituted and inducted [ 386
is to all intents and purpofes complete parfon : and the appro-
priation, being once .fevered, can never be re-united again,
unlefs by a repetition of the fame folemnities q . And, when
the clerk fo prefented (tp) is diftin&from the vicar, therec-
Plowd. 496 500. 1 Co. Litt. 46.
P Hob. 307.
( 19) The Editor conceives that there is no authority or reafon
to fuppofe, that the appropriator can thus create a finecure rector.
But if the appropriator or impropriator fhould, either by defign
or miftake, prefent his clerk to the parfonage, it is held, that the
vicarage will ever afterwards be difTolved, and the incumbent will
be entitled to all the tithes and dues of the church as rector. Watf.
c. 17. 2 R> Ab> 338.
tory
j<pill!r
3 86
The RIGHTS BOOK I.
tory thus vefted in him becomes what is called % finecure (20) ;
becaufe he hath no cure of fouls, having a vicar under him
to whom that cure is committed r . Alfo, if the corporation
which has the appropriation is diflblved, the parfonage be-
comes difappropriate at common law ; becaufe the perpe-
tuity of perfon is gone, which is necefiary to fupport the
appropriation.
IN this manner, and fubjeft to thefe conditions, may appro-
priations be made at this day (21) : and thus were moft, if not
all, of the appropriations at prefent exifting originally made :
being annexed to bifhopricks, prebends, religious houfes, nay
even to nunneries and certain military orders, all of which
were fpiritual corporations. At the diffblution of monafteries
by ftatutes 27 Hen. VIII. c. 28. and 31 Hen. VIII. c. 13. the
appropriations of the feveral parfonages, which belonged to
thofe refpective religious houfes, (amounting to more than
r Sinecures might alfo be created by other means, a Burn. eccl. law. 347.
(20) Wherever a reftor and vicar are preferred and inftitutedto
the fame benefice, the re&or is excufed all duty, and has what is
properly called a finecure. But where there is only one incum-
bent, the benefice is not in law a finecure, though there fhould be
neither a church nor any inhabitants within the parifh.
(21) It furely may be queftioned whether fuch a power any
longer exifts ; it cannot be fuppofed that, at this day,' the inha-
bitants of a parifh, who had been accuftomed to pay their tithes
to their officiating minifter, could be compelled to transfer them to
an ecclefiaftical corporation, to which they might perhaps be per-
fect ftrangers. Appropriations are faid to have originated from an
opinion inculcated by the monks, that tithes and oblations, though
payable to fome church, yet were an arbitrary difpofition of the
donor, who might give them, as the reward of religious fervice
done to him, to any perfon whatever from whom he received that
fervice. I Burn. EC. L.6$. And till they had got complete pof-
feffion of the revenues of the church, they fpared no pains to re-
commend themfelves as the moft deferving objects of the gratitude
and benefa&ion of the parifh. There probably have been no new
appropriations fince the difiblution of monafteries.
one
Ch. ii. ^PERSONS. 386
one third of all the parifhes in England ",) would have been
by the rules of the common law difappropriated, had not a
claufe in thofe ftatutes intervened, to give them to the king
in as ample a manner as the abbots, &c. formerly held the
fame, at the time of their diflblution. This, though perhaps
fcarcely defenfible, was not without example ; for the fame
was done in former reigns, when the alien priories (that is,
fuch as were filled by foreigners only) were diflblved and
given to the crown *. And from thefe two roots have fprung
all the lay appropriations of fecular parfonages which we now
fee in the kingdom ; they having been afterwards granted out
from time to time by the crown u .
THESE appropriating corporations, or religious houfes,
were wont to depute one of their own body to perform divine 387 3
fervice, and adminifter the facraments, in thofe parifhes of
which the fociety was thus the parfon. This officiating
minifter was in reality no more than a curate, deputy, or vice-
gerent of the appropriator, and therefore called vicarius or
vicar. His ftipend was at the difcretion of the appropriator,
who was however bound of common right to find fomebody,
qui lll'i de temporalibus y epifcopo de fpiritualibus y debeat refpon*
dere w . But this was done in fo fcandalous a manner, and the
pariflies fuffered fo much by the neglect of the appropriators,
that the legiflature was forced to interpofe : and accordingly it
is enacled by ftatute 15 Ric. II. c. 6. that in all appropriations
of churches, the diocefan bifhop (hall ordain (in proportion to
the value of the church) a competent fum to be diftributed
among the poor parifhioners annually : and that the vicarage
{hall be fujficiently endowed. It feems the pariflies were fre-
quently fufferers, not only by the want of divine fervice, but
alfo by withholding thofe alms for which, among other pur-
pofes, the payment of tithes was originally impofed: and there-
fore in this at a penfion is directed to be diftributed among
Seld. review of t5th. c. 9. Spelm. (Lys, thefe are now called impropri-
Apoloiy. 35. ations, as beir.g improperly in the hands
a Inft. 584. of laymen.
Sir H, Spelman (of tithes, C, 49.) w Seld, tith, c. tit 1*
the
387 The RIGHTS BOOK I.
the poor parochians, as well as a fufficient flipend to the vicar.
But he, being liable to be removed at the pleafure of the
appropriator, was not likely to infift too rigidly on the legal
fufficiency of the flipend: and therefore by ftatute 4 Hen. IV.
c. 12. it is ordained, that the vicar fhall be a fecular perfon,
not a member of any religious houfe ; that he fhall be vicar
perpetual, not removable at the caprice of the monaftery ;
and that he fhall be canonically inftituted and inducted, and
be fufficiently endowed, at the difcretion of the ordinary, for
thefe three exprefs purpofes, to do divine fervice, to inform
the people, and to keep hofpitality (22). The endowments
(22) From this a& we may date the eftablifhment of vicarages j
for before this time the vicar in general was nothing more than a tem-
porary curate, and when the church was appropriated to a monaf-
tery, he was generally one of their own body, that is, one of the
regular clergy ; for the monks who lived fccundum regulas of their
refpeftive houfes or focieties, were denominated regular clergy, in
contradiftin&ion to the parochial clergy, who performed their mini-
ftry in the world infeculo, and who from thence were called fecular
clergy. All the tithes or dues of the church of common right be-
longed to the reftor, or to the appropriator or impropriator, who
have the fame rights as the reftor ; and the vicar is entitled only
to that portion which is exprefled in his endowment, or what his
predeceflbrs have immemorially enjoyed by prefcription, 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 ftill retain what he and his predeceflbrs have en-
joyed by prefcription, though not exprefled in it ; for fuch a pre-
fcription amounts to evidence of another confiftent endowment.
But I have heard lord chancellor Eldon declare, that if a vicar
enjoys property not mentioned in an endowment, and has never
within time of memory poflefied what is exprefsly contained in
it, a jury might prefume that he had the former in lieu of the
latter. Thefe endowments frequently inveft the vicar with fome
part of the great tithes ; therefore the words reftorial and vicarial
tithes have no definite fignification. But great and fmall tithes
are technical terms, and which are, or ought to be, accurately
defined and diftinguifhed by the law,
in
Ch. It. of PliRSONS. 387
in confequence of thefe ftatutes have ufually been by a portion
of the glebe or land belonging to the parfonage, and a
particular (hare of the tithes which the appropriators found
it moft troublefome to collect, and which are therefore [ 388 ]
generally called privy or fmall tithes; the greater, or predial,
tithes being fhill referved to their own ufe. But one and
the fame rule was not obferved in the endowment of all
vicarages. Hence fome are more liberally, and fome more
fcantiiy, endowed : and hence, the tithes of many things, as
wood in particular, are in fome parifhes rectorial, and in fome
vicarial tithes.
THE diftinUon therefore of a parfon and vicar is this :
the parfon has for the moft part the whole right to all the
ecclefiaftical dues in his parifti : but a vicar has generally an
appropriator over him, entitled to the beft part of the profits,
to whom he is in effect perpetual curate, with a {landing
falary (23). Though in fome places the vicarage has been
considerably augmented by a large fhare of the great tithes ;
which augmentations were greatly affifted by the ftatute
29 Car. 2. c. 8. enacted in favour of poor vicars and curates,
which rendered fuch temporary augmentations (when made
by the appropriators) perpetual.
(23) A vicar, from what have been advanced in the preceding
page and note, muft neceflarily have an appropriate over him,
or a finecure re&or, who in fome books is confidered and called an
appropriator. Of benefices, fome have never been appropriated :
confequently in thofe there can be no vicar, and the incumbent is
reftor, and entitled to all the dues of the church. Some were
appropriated to fecular ecclefiaftical corporations, which appro-
priations ftill exift, except perhaps fome few which may have
been diflblved ; others were appropriated to the houfes of the
regular clergy ; all which appropriations, at the diffolntion of
monafteries, were transferred to the crown ; and in the hands of
the king or his grantees, and are now called impropriations : but
in fome appropriated churches no perpetual vicar has ever been
endowed ; in that cafe the officiating minifter is appointed by the
appropriator or impropriator, and is called a perpetual curate.
VOL. I. Mm THE
388 The RIGHTS BOOK I.
THE method of becoming a parfon or vicar is much the
fame. To both there are four requifites neceflary: holy
orders ; prefentation; inftitutionj and induction. The method
of conferring the holy orders of deacon and prieft, according
to the liturgy and canons x , is foreign to the purpofe of thefe
Commentaries j any farther than as they are neceflary requi-
fites to make a complete parfon or vicar. By common law,
a deacon, of any age, might be inftituted and indudled to a
parfonage or vicarage : but it was ordained by ftatute 13 Eliz.
c. 1 2. that no perfon under twenty-three years of age, and in
deacon's orders, mould be prefented to any benefice with
cure ; and if he were not ordained prieft within one year
after his induction, he fhould be ipfofaElo deprived : and now,
by ftatute 13 & 14 Car. II. c. 4. no perfon is capable to be
admitted to any benefice, unlefs he hath been firft ordained
a prieft (24) j and then he is, in the language of the law, a
clerk in orders. But if he obtains orders, or a licence to
C 380 ] preach, by money or corrupt practices, (which feems to be
the true, though not the common, notion of fimony,) the
perfon giving fuch orders forfeits y 4o/. and the perfon
receiving io/., and is incapable of any ecclefiaftical preferment
for feven years afterwards.
* See a Burn, eccl.law. 103. * Stat. 31 Eliz. c. 6.
(24) By canon 34., no one fhall be admitted to the order of a
deacon till he be twenty -three years old ; and by that canon, and
alfo by 13 Eliz. c. 12. no one can take the order of a prieft till he
be full four-and-twenty years old. 3 Burn. EC. L. 27.
44 Geo. III. c. 43. enafts that no perfon fhall be admitted a
deacon in England or Ireland before he fhall have attained the
age of three-and-twenty years complete, and that no perfon fhall
be admitted a prieft before the complete age of twenty-four.
Every admiffion at an earlier age fhall be yoid, as if no fuch ad-
mifiion had been made, and the perfon admitted fhall be incapable
of holding any ecclefiaftical preferment ; but no lapfe mail incur
until the ordinary has given the patron notice of the avoidance
fix months. This ftatute does not deprive the archbifhop of
Canterbury and the archbifhop of Armagh of granting faculties
to be admitted at earlier ages.
ANY
Ch. ii. gf PERSONS. 389
ANY clerk may be prefented z to a parfonage or vicarage ;
that is, the patron, to whom the advowfon of the church
belongs, may offer his clerk to the bifhop of the diocefe to
be inflituted. Of advowfons, or the right of prefentation,
being a fpecies of private property, we (hall find a more
convenient place to treat in the fecond part of theTe Com-
mentaries. But when a clerk is prefented, the bifhop may
refufe him upon many accounts. As, i. If the patron is
excommunicated, and remains in contempt forty days 3 .
Or, 2. If the clerk be unfit b : which unfitnefs is of feveral
kinds. Firft, with regard to his perfon ; as, if he be abaftard
(25), an outlaw, an excommunicate, an alien, under age, or
the like c . Next with regard to his faith or morals ; as
for any particular herefy, or vice that is malum in fe : but if
the bimop alleges only in generals, as that he is fchiftnaticus
inveteratus, or objects a fault that is malum prohlbitum
merely, as haunting taverns, playing at unlawful games, or
the like ; it is not good caufe of refufal d . Or, laftly, the
clerk may be unfit to difcharge the paftoral office for want
of learning. In any of which cafes the bifhop may refufe
the clerk. In cafe the refufal is for herefy, fchifm> inability
of learning, or other matter of ecclefiaftical cognizance,
there the bifhop muft give notice to- the patron of fuch
his caufe of refufal, who, being ufually a layman, is not
fuppofed to have knowledge of it ; elfe he cannot prefent by
lapfe : but if the caufe be temporal, there he is not bound to
give notice e .
1 A layman may alTo be prefented', c a Roll. Abr. 356. ft tnft. 634.
but he muft take prieft's orders before Stat. 3 Ric. II. 0.3. 7 Ric. If. c. 14.
his admiffion. i Burn. 103. d 5 Rep. 58.
a 2 Roll Abr. 355. e Inft. 634.
b Glau. /. 13. c. 20.
(25) Though this be claffed in the books among the caufes
of refufal, yet fuch is the liberality of the prefent times, that
no one need apprehend that his preferment would be impeded
by the incontinence of his parents, or by any demerit but his
pwn.
Mm 2 I?
390 The RIGHTS BOOK!.
IF an action at law be brought by the patron againft the
bifiiop for refilling his clerk, the bifhop muft afTign the
caufe. If the caufe be of a temporal nature, arid the fat
admitted, (as, for inftance, outlawry,) the judges of the
king's courts muft determine its validity, or whether it be
fufficient caufe of refufal : but if the fadl: be denied, it muft
be determined by a jury. If the caufe be of a fpiritual
nature, (as herefy particularly alleged,) the fact, if denied,
fhall alfo be determined by a jury ; and if the faft be
admitted or found, the court upon confultation and advice of
learned divines fhall decide it's fufficiency f . If the caufe
be want of learning, the bifliop need not fpecify in what
points the clerk is deficient, but only allege that he is
deficients : for the ftatute 9 Edw. II. ft. I. c. 13. is exprefs,
that the examination of the fitnefs of a perfon prefented
to a benefice belongs to the ecclefiaftical judge. But becaufe
it would be nugatory in this cafe to demand the reafon of
refufal from the ordinary, if the patron were bound to abide
by his determination, who has already pronounced his clerk
unfit ; therefore if the bifhop returns the clerk to be minus
fufficiens in literatura, the court fhall write to the metropolitan
to re-examine him, and certify his qualifications ; which
certificate of the archbifhop is final h .
IF the bifhop hath no objections, but admits the patron's
prefentation, the clerk fo admitted is 'next to be inftituted
by him ; which is a kind of inveftiture of the fpiritual part
of the benefice : for by inftitution the care of the fouls of
the parifh is committed to the charge of the clerk. When
a vicar is inftituted, he (befides the ufual forms) takes, if
required by the bimop (26), an oath of perpetual refidence ;
for the maxim of law is, vicarius non habet vicarium :
1 4 Inft. 631. h a Inft. 632.
E 5 Rep. 58. 3 Lev. 313.
(26) By 43 Geo. Ill, c. 84* f. 37 this oath fhall no longer be
taken by any vicar.
and,
Ch. ii. of PERSONS. 390
and, as the non-refidence of the appropriated was the
caufe of the perpetual eftablifhment of vicarages, the law
judges it very improper for them to defeat the end of their
conftitution, and by abfence to create the very mifchief 391
which they were appointed to remedy : efpecially as, if any
profits are to arife from putting in a curate, and living at a
diftance from the parifh, the appropriator, who is the real
parfon, has undoubtedly the elder title to them. When
the ordinary is alfo the patron, and confers the living, the
prefentation and inftitution are one and the fame aft, and
are called a collation to a benefice. By inftitution or col-
lation the church is full, fo that there can be no frefli pre-
fentation till another vacancy, at leaft in the cafe of a
common patron : but the church is not full againft the king
till induction : nay, even if a clerk is inftituted upon the
king's prefentation, the crown may revoke it before induc-
tion, and prefent another clerk '. Upon inftitution alfo the
clerk may enter on the parfonage-houfe and glebe, and take
the tithes ; but he cannot grant or let them, or bring a.ti
action for them, till induction,
INDUCTION is performed by a mandate from the bifliop to
the archdeacon, who ufually iflues out a precept to other
clergymen to perform it for him. It is done by giving the
clerk corporal pofieflion of the church, as by holding the
ring of the door, tolling a bell, or the like : and is a form
required by law, with intent to give all the parifhioners due
notice, and fufficient certainty of their new minifter, to
whom their tithes are to be paid. This therefore is the in-
veftiture of the temporal part of the benefice, as inftitution
is of the fpiritual. And when a clerk is thus prefented, in-
ilituted, and inducted into a re&ory, he is then, and not be-
fore, in full and complete pofleflion, and is called in law
perfona imperfenata^ or parfon imparfonee V
> THE rights of a parfon or vicar, in his tithes and ecclefiaf-
tical dues, fall more properly under the fecond book of
1 Co.Litt. 344. k Co.Litt. 300.
Mm 3 thefe
i
39i The RIGHTS BOOK!.
thefe Commentaries : and as to his duties, they are prin-
cipally of ecclefiaftical cognizance ; thofe only excepted
which are laid upon him by ftatute. And thofe are indeed
fo numerous, that it is impracticable to recite them here
C 392 ] with a tolerable concifenefs or accuracy. Some of them
we may remark as they arife in the progrefs of our in-
quiries, but for the reft I muft refer myfelf to fuch authors
as have compiled treatifes exprefsly upon this fubjet '. I
{hall only juft mention the article of refidence, upon the
fuppofition of which the law doth ftyle every parochial
minifter an incumbent. By ftatute 21 Hen. VIII. c. 13.
perfons wilfully (27) abfenting themfelves from their bene-
fices for one month together, or two months in the year,
incur a penalty of (28) 5/. to the king, and 5/. to any per-
1 Thefe are very numerous : but Jlaftical law, and the earlier editions of
there are few which can be relied on the clergyman's la-w, publiflied under
with certainty. Among thefe are the name of Dr. Watfon, but com-
bifliop Gibfon's codex, Dr. Burn's cede- piled by Mr. Place, a barrifter.
(27) 111 health, or any inevitable abfence, is an exemption from
the penalties of this ftatute. Gibf. Cod. 887.
(28) This ftatute muft be put in fuit by a common informer
within a year, or by the king within two years, after the end
of that year; fo that 12 penalties, or I2O/. may be recovered at
once by a fubjeft for himfelf and the king, or the king may re-
cover at once 25 penalties, or 2$ol. (See 4 vol. 308.) But,
independent of this ftatute, the bifhop in his court may compel
the refidence of all clergy who have the cure or care of fouls
within his diocefe. 3 Burn. EC. L. 381. Gibf. 887. This ftatute
is not confined to parfonages and vicarages, but extends to all
archdeaconries, deaneries, and dignities in cathedral and colle-
giate churches. Thofe who have two benefices or dignities,
upon each of which refidence is required, muft refide upon one
or the other. But it has lately been decided, that the incum-
bent of an augmented curacy cannot be profecuted under the
ftatute for the penalties of non-refidence. 4 T. R. 665.
Several aclions having been brought for penalties incurred
under this a& for non-refidence, proceedings in thofe actions
were repeatedly flayed (by ftatutes 41 Geo. III. U. K. c. 102.
42 Geo. III. c. 30. 86. ) At the time of palling thefe afts it was
under-
.\ , if^&Zfl
Ch. n. of PERSONS. 392
fon that will fue for the fame : except chaplains to the
king or others therein mentioned, during their attendance
underftood that fome permanent regulations on this fubject were
in the contemplation of the legiflature.
. The refidence of the clergy upon their benefices and ecclefiaf-
tical dignities is now regulated by the 43 Geo. III. c. 84. The
provifions of that ftatute are too numerous and extenfive to be
fully comprifed within a note. Incumbents are permitted to
be abfent three months without being fubjeft to any penalty.
If they are abfent between three and fix months, they forfeit one
third of the annual value of the benefice after all deductions except
the curate's flipend ; between fix and eight one half; between
eight and twelve two thirds, and the whole year three fourths,
to any one who will fue. Sinecure re&ories are excepted. All
who were exempted from non-refidence before are ftill exempt,
and this ftatute extends the exemption to feveral others fpecified
in this ftatute, and to all public officers in either univerfity, and
to tutors and public officers in any college. Students in the
univerfity are exempted till they are thirty years of age only.
The perfon of the incumbent mall not be taken in execution,
if the penalties can be raifed by fequeftration. The bifhop's
certificate mall be evidence of the annual value. No perfon is
to have the benefit of an exemption, unlefs he makes a notification
of it every year, within fix weeks from the i ft of January, to the
archbifhop or bifhop of the diocefe. The bifhop may at his
difcretion grant a licence for non-refidence for the illnefs or in-
firmity of the incumbent, his wife or child, and where there is not
a fit houfe of refidence, if the unfitnefs is not occafioned by the
incumbent's neglect, if he lives in his own or any relation's houfe
within the parifh ; if he ferves another church as curate or
preacher, and if he is mafter or ufher of an endowed fchool, and
licenfed by the bimop ; thefe and fome others are grounds for
the grant of a licence, and if the bifhop refufes, the incumbent
may appeal to the archbifhop. The bifhop may grant licences
for caufes not enumerated in the ftatute ; but they muft have
afterwards the allowance of the archbifhop. Licences may be
revoked, and if not revoked are in force only for two years. A lift
of all the exemptions and licences for non-refidence fhall be tranf-
mitted every year to the king in council, and lifts of the exemp-
tions and licences muft be kept by the regifter of each diocefe,
and any perfon may infped. them, paying two fhillings. The
M m 4 bifhop
39* The RIGHTS BOOK I,
in the household of fuch as retain them m (29) : and alfo ex-
cept" all heads of houfes, magiftrates (30), and profeflbrs
in the univerfities, and all ftudents under forty years of
age refiding there bona fide for ftudy. Legal refidence is
not only in the parifh, but alfo in the parfonage-houfe, if
there be one : for it hath been refolved , that the ftatute
intended refidence, not only for ferving the cure, and for
Jiofpitality ; but alfo for maintaining the houfe, that the
fpccefibr alio may keep hofpitality there: and if there be
Stat. 45 Hen. VIII. c. 16. Star. 8 Hen. VIII. c. 13.
33 Hen. VIII. c. 8. 6Rap.ai.
bifhop may compel refidence by a monition and cenfure in his
court, but not unlefs the non-refidence exceed three months in
one year. If an adlion for the penalties is commenced, and the
bifhop iffues his monition, he fhall fequefter the profits of the
benefice, to pay the penalties and cofts of the aftion ; if the
bifhop iffues his monition before the commencement of the aftion,
it is a bar to the aftion. If the bimop's monition to refide is not
complied with within thirty days, he may fequefter the profits
of the living till it is complied with. The profits fequeftered may
be applied by the bifhop to the improvement of the parfonage-
houfe and glebe, or to the fund of queen Anne's bounty. Vicars
are no longer to take an oath that they will refide. If an in-
cumbent is called into refidence by a bifhop, and if there is any
tenant refiding in the parfonage-houfe, a copy of the order fhall
be ferved upon the tenant by one of the churchwardens, and if
he does not quit the premifes on the day fpecified in the order,
he fhall forfeit 4OJ. for every day he continues afterwards on the
premifes, and all his contracts with the incumbent are void. The
king's prerogative to grant difpenfations for non-refidence is not
affefted.
(29) The king can give a licence to his chaplains for non-
refidence, even whiHt they do not attend his houfehold ; but the
chaplains of noblemen are only ekcufed during their aftual attend-
ance upon their lords or ladies. 3 Sum. EC. L. 290.
(30) Viz. the chancellor, vice-chancellor, commiffary, do&ors
of the chair, (;'. e. doftors who ufed to prefide in the public
fchools,) and readers of ledlures ; and under this defcription only
can profeflbrs claim an exemption from refidence.
no
Ch. ii. ^PERSONS, 392
no parfonage-houfe, it hath been holden that the incum-
bent is bound to hire one, in the fame or fome neighbour-
ing parifh (31), to anfwer the purpofes of refidence. For
the more effe&ual promotion of which important duty
among the parochial clergy, a provifion is made by the
ftatute 17 Geo. III. 0.53. for railing money upon ecclefi-*
aftical benefices, to be paid off by annually decreafing inftaU
ments, and to be expended in rebuilding or repairing the
houfes belonging to fuch benefices (32).
(31) It has been decided, by the court of king's bench, that
even where there is no parfonage-houfe, the incumbent is bound
to refide within the parifh. Co<wp. 429. If a clergyman had one
benefice with a parfonage-houfe, and another benefice without a
houfe, the Editor conceives that he is not bound to refide in that
parifli in which there is a houfe, for more important duties may
impel him to refide within the parifh where there is no houfe ;
and that fuch refidence would exempt him from the penalties of
the ftatute. But where the archdeacon of St. Alban's had the
living of Bufhey within his archdeaconry, to which living there is
a parfonage-houfe belonging, and he refided in the parifh of
Bufhey, but not in the parfonage-houfe ; it was held by the court
of king's bench, that he was fubjeft to the penalties of non-refi-
dence, though he was living within the limits of his archdeaconry,
to which dignity there is no houfe appurtenant. 5 Burr. 2722. If
then the Editor's opinion be well founded, the decifion muft have
been different if he had refided in any other part of his arch-
deaconry out of the parifh of Bufhey. /?;'-:'
In thefe cafes now the incumbent may obtain a licence from the
bifhop for non-refidence. See the preceding note (28).
(32) This aft enables the incumbent, when there is no parfon-
age-houfe, or where it is fo ruinous as not to be repaired with
one year's income of the living, to borrow, with the confent of
the patron and ordinary, upon mortgage of the revenue of the
living, a fum not exceeding two years' clear value, to be laid out
in repairs, building, or the purchafe of a houfe. The intereft of
the money borrowed is to be repaid by the incumbent yearly, and
5/. psr cent, of the original fum ; or io/. per cent, if he does not
refide twenty weeks within a year. And where the income is
ipo/. a year, and the incumbent does not refide twenty weeks
within
39* The RIGHTS BOOK I.
WE have feen that there is but one way whereby one may
become a parfon or vicar : there are many ways by which
one may ceafe to be fo. i. By death. 2. By ceffion, in
taking another benefice. For by ftatute 21 Hen. VIII.
c. 13. if any one having a benefice of 87. per annum, or
upwards, according to the prefent valuation in the king's
books p , accepts any other, the firft ihall be adjudged
void, unlefs he obtains a difpenfation (33), which no one
P Cro. Car. 456.
within a year, the patron and the ordinary are empowered to un-
dertake this without his confent. The governors of Queen Anne's
bounty may lend money upon fuch mortgages, at 4/. per cent.
intereft; and zoo/, upon a living under 4O/. a year without any
intereft. Colleges and other corporations may lend money for
this purpofe upon their own livings, without intereft. For forms
and mode of proceeding, confult the ftatute at large. It is very
remarkable that, under this aft, the money borrowed was directed
to be difcharged by paying j7. per cent, yearly upon the principal
remaining due ; the confequence was, that it would have been di-
minifhed by decreafmg inftalments, which would have produced an
infinite feries, or the whole could never have been paid. And
it required another a&, the 21 Geo. III. c. 66. which was parted
merely for the purpofe of correcting this palpable blunder, by
which Aatute the original fum muft be paid, as ftated, at the far-
theft, within twenty years.
(33) But both the livings muft have cure of fouls; and the
ftatute exprefsly excepts deaneries, archdeaconries, chancellorfhips,
treafurerfhips, chantermips, prebends, and linecure redtories ; a
difpenfation in this cafe can only be granted to hold one benefice
more, except to clerks, who are of the privy council, who may
hold three by difpenfation. By the canon law, no perfon can
hold a fecond incompatible benefice without a difpenfation ; and
in that cafe, if the firft is under 87. per annum, it is fo far void
that the patron may prefent another clerk, or the bifhop may
deprive ; but till deprivation, no advantage can be taken by lapfe.
So, by leave of the bimop and patron, a clergyman may hold any
number of benefices, if they are all under 87. per annum, except
the laft, and then by a difpenfation under the ftatute he may
hold one more.
By
Ch. ii. of PERSONS. 393
is entitled to have but the chaplains (34) of the king, and
others therein mentioned, the brethren and fona of lords
By the 41 ft canon of 1603, the two benefices muft not be far-
ther diftant from each other than 30 miles, and the perfon obtain-
ing the difpenfation muft at lead be a mafter of arts in one of the
univerfities. But the provifions of this canon are not enforced or
regarded in the temporal courts. 2 Black. Rep. 968. See note
14. p. 83.
It had been doubted whether the ftatute i Geo. I. ft. t, c. id.
which enafts that all churches, curacies, and chapels augmented
by queen Anne's bounty mail become perpetual cures and bene-
fices, had thereby brought them under the ftatute of pluralities,
fo as to produce the avoidance of other livings. But to remove
all doubts upon that fubject the 36 Geo. III. c. 83* has declared
that fuch augmented churches and chapels (hall be confidered as
prefentative benefices, and that the licence to them {hall render
other livings voidable in the fame manner as inftitution to pre-
fentative benefices : but that every clergyman mail continue in
quiet poffeflion of any benefices which he held in conjunction with
fuch augmented cures before the pafling of that aft, viz. i4th
May 1796.
( 34) The number of the chaplains of the king and royal family,
who may have difpenfations, is unlimited. An archbifhop may
have eight, a duke and bifhop fix, a marquis and earl five, a vif-
count four ; the chancellor, a baron, and knight of the garter,
three ; a duchefs, marchionefs, countefs, and baronefs, being
widows, two ; the king's treafurer, comptroller, fecretary, dean
of the chapel, almoner, and the mafter of the rolls, two ; the chief
juftice'bf king's bench, and warden of cinque pDrts, one. Thefe
chaplains only can obtain a difpenfation under the ftatute.
If one perfon has two or more of thefe titles or characters united
in himfelf, he can only retain the number of chaplains limited to
his higheft degree j and if a nobleman retain his full number of
chaplains, no one of them can be difcharged, fo that another
fhall be appointed in his room during his life. 4 Co. 90. The
king may prefent his own chaplains, i. e. waiting chaplains in or-
dinary, to any number of livings in the gift of the crown, and
even in addition to what they hold upon the prefentation of a
fubjed without difpenfation : but a king's chaplain, being bene-
ficed by the king, cannot afterwards take a living from a fubjeft,
but
392 The RIGHTS BOOK I.
and knights (35), and do&ors and bachelors of divinity and
law (36), admitted by the univerftties, of this realm. And a
vacancy thus made, for want of a difpenfation, is called
ceffion (37). 3. By confecration ; for, as was mentioned
C 393 3 b e f re q , when a clerk is promoted to a bifhoprick s all his other
preferments are void the inftant that he is confecrated.
But there is a method, by the favour of the crown, of hold-
ing fuch living in commendam. Cotntnenda, or ecclefia com-
mendata, is a living commended by the crown to the care of
3 clerk, to hold till a proper paftor is provided for it. This
may be temporary for one, two, or three years ; or perpe-
tual ; being a kind of difpenfation to avoid the vacancy of
' P^e 383-
but by a difpenfation according to the ftatute 21 Hen. VIII.
c. 13. f. 29. I Salk. 161.
(35) This privilege is not enjoyed by the brother and fon of a
baronet, for the rank of baronet did not then exift.
(36) The words of the ftatute are, " all doctors and bachelors
" of divinity, doctors of laws, and bachelors of the law canon."
Before the reformation, degrees were as frequent in the canon
law as in the civil law. Many were graduates in utroque jure, or
utrlufque juris. J. U. D. or juris utriufque doftor, is ftill common
in foreign univerfities. But Henry VIII., in the 27th year of his
reign, when he had renounced the authority of the pope, ifiued a
mandate to the univerfity of Cambridge, ut nulla hgatur falam et
publice leSio in jure canonico Jive pontificio^ nee aliquis cujufcunque
conditions homo gradum aliquem injludio ilius juris pontificii fufcipiat,
out m eodem in pojlerum promoveatur quovis modo. Stat. Acad,
Cant. p. 137. It is probable that, at the fame time, Oxford re-
ceived a fimilar prohibition, and that degrees in canon law have
ever fince been difcontinued in England.
(37) In the cafe of a ceffion under the ftatute, the church is fo
far void upon inftitution to the fecond living, that the patron may
take notice of it, and prefent if he pleafes ; but there is great rea-
fon to think, that lapfe will not incur from the time of inftitution
againft the patron, unlefs notice be given him ; but lapfe will incur
from the time of induction, without notice. 2 WHf. 200. 3 Burr.
1504.
the
Ch. ii. of PERSONS. 393
the living, and is called a commenda retinere (38). There is
alfo a commenda recipere, .which is to take a benefice de novo,
in the bifhop's own gift, or the gift of fome other patron
confenting to the fame ; and this is the fame to him as in-
ftitution and induction are to another clerk q . 4. By refig-
nation. But this is of no avail, till accepted by the ordi-
nary ; into whofe hands the refignation muft be made r (39).
5. By deprivation, either, firft, by fentence declaratory in
the ecclefiaflical court, for fit and fufficient caufes allowed
by the common law ; fuch as attainder of treafon or felony %
or conviction of other infamous crime in the king's courts ;
i Hob. 144. * Dyer. 108. Jenk, no.
r Cro. Jac. 198.
(38) Thefe commendams are now feldom or never granted to
any but bifhops ; and in that cafe the bifhop is made commend-
atory of the benefice, while he continues bifhop of fuch a diocefe,
as the object is to make it an addition to a fmall bifhoprick ; and
it would be unreafonable to grant it to a bifhop for his life, who
might be tranflated afterwards to one of the richeft fees. See an
account of the proceeding in the great cafe of commendams,
Hob. 140. and Collier's EC. Hift. 2 vol. p. 710.
(39) It feems to be clear that the bifhop may refufe to accept
a resignation, upon a fufficient caufe for his refufal ; but whether
he can merely at his will and pleafure refufe to accept a refignation
without any caufe, and who fhall finally judge of the fufficiency of
the caufe, and by what mode he may be compelled to accept, are
queftions undecided. In the cafe of the bifhop of London and
Fytche, the judges in general declined to anfwer whether a bifhop
was compellable to accept a refignation : one thought he was com-
pellable by mandamus, if he did not mew fufficient caufe ; and
another obferved, if he could not be compelled, he might prevent
any incumbent from accepting an Irifh bifhoprick, as no one can
accept a bifhoprick in Ireland till he has refigned all his benefices
in England. But lord Thurlow feemed to be of opinion that he
could not be compelled, particularly by mandamus^ from which
there is no appeal or writ of error. See 3 Burn. 304. and the
opinions of the judges in Cunningham't Law of Simony, though
ill reported.
for
393
The RIGHTS BOOK I.
for herefy, infidelity 8 , grofs immorality, and the like : or,
fecondly, in purfuance of divers penal ftatutes, which de-
clare the benefice void, for fome nonfeafance or neglect, or
elfe fome malefeafance or crime ; as, for fimony * ; for
maintaining any doctrine in derogation of the king's fupre-
macy, or of the thirty-nine articles, or of the book of com-
mon-prayer v ; for negle&ing after inftitution to read the
liturgy and articles in the church, or make the declarations
againft popery, or take the abjuration oath u ; for ufmg any
other form of prayer than the liturgy of the church of Eng-
land w ; or for abfenting himfelf fixty days in one year from
a benefice belonging to a popifh patron, to which the clerk
was prefented by either of the univerfities x ; in all which
and fimilar cafes y the benefice is ipfofaElo void, without any
formal fentence of deprivation.
VI. A CURATE is the lowed degree in the church ; being
in the fame ftate that a vicar was formerly, an officiating tem-
porary minifter, inftead of the proper incumbent. Though
C 394 ] there are what are called perpetual curacies, where all the
tithes are appropriated, and no vicarage endowed, (being
for fome particular reafons z exempted from the ftatute of
Hen. IV.) but, inftead thereof, fuch perpetual curate is ap-
pointed by the appropriator. With regard to the other fpe-
cies of curates, they are the objecls of fome particular fta-
tutes, which ordain, that fuch as ferve a church during it's
vacancy fhall be paid fuch ftipend as the ordinary thinks
reafonable, out of the profits of the vacancy ; or, if that be
not fufficient, by the fqcceflbr within fourteen days after he
takes pofleffion a : and that if any reclor or vicar nominates
a curate to the ordinary to be licenfed to ferve the cure in
his abfence, the ordinary {hall fettle his ftipend under his
hand and feal, not exceeding 5O/. per annum, nor lefs
Fitz. Air. t. Trial 54. w Stat. I Eliz. c. 2.
* Stat. 31 Eliz. c. 6. 12 Ann. c. 12. * Stat. i W. & M. c. 26.
" Stat. lEh'z. c.i, 2. ijEliz.c.iz. y 6 Rep. 29, 30.
u Stat. 13 Eliz. c. 12. 14 Car. II. c. 4. z I Burn. eccl. law. 427.
iGeo.I. c.6. Stat. 28 Hen. VIII, c.n.
than
Ch. ii. of PERSONS, 394
than ao/. and on failure of payment may fequefter the pro-
fits of the benefice b (40).
b Stat. 12 Ann. ft. 2. c. ia.
(40) It was provided in 1603, by canon 33., that if a bifhop
ordains any perfon not provided with fome ecclefiaftical prefer-
ment, except a fellow or chaplain of a college, or a mafter of arts
of five years' {landing, who lives in the univerfity at his own expence,
he fhall fupport him till he (hall prefer him to a living. 3 Burn.
EC. L. 28. And the bifhops, before they confer orders, require
either proof of fuch a title as is defcribed by the canon, or a cer-
tificate from fome re&or or vicar, promifmg to employ the candi-
date for orders bona Jide as a curate, and to grant him a certain
allowance, till he obtains fome ecclefiaftical preferment, or fhall
be removed for fome fault. And in a cafe where the reftor of
St. Ann's, Weftminfter, gave fuch a title, and afterwards difmifled
his curate without affigning any caufe, the curate recovered, in an
aftion of affumpfit, the fame falary for the time after his difmif-
fion which he had received before. Co<wp. 437. Atid when the
reftor had vacated St. Ann's by accepting the living of Rochdale,
the curate brought another a&ion to recover his falary fince the
rector left St. Ann's ; but lord Mansfield and the court held, that
that action could not be maintained, and that thefe titles are only
binding upon thofe who give them, while they continue incumbent
in the church for which fuch curate is appointed. Doug. 137.
The 36 Geo. III. c. 83. has given a power to the bifhop or
ordinary to grant an allowance not exceeding 757. to any curate,
who fhall be employed by any reftor or vicar, or by any curate or
incumbent of any church or chapel, which has been augmented by
queen Anne's bounty, or by the curate or incumbent of any per-
petual curacy, although it has not been fo augmented.
And where a reftor or vicar does not refide four months in the
year at leaft, the bifhop or ordinary may grant the ufe of the rectory
or vicarage-houfe, with the garden and ftable, for one year to the
curate for his a&ual refidence in it. Or he may grant him i$l. a
year in lieu of the rectory or vicarage-houfe. The grant of the
houfe he has power to renew, and at any time he may revoke it,
and he may annex to- it fuch conditions as he fhall think reafon-
able. If the curate refufes to give up poffeffion at the determin-
ation of the grant, he fhall forfeit to his re&or or vicar all the
{Upend which fhall be or become due to him, and 50/, befides.
And
394 The RIGHTS BOOK!.
THUS much of the clergy, properly fo called. There are
alfo certain inferior ecclefiaftical officers of whom the com-
mon law takes notice j and that, principally, to aflift the ec-
clefiaftical jurisdiction, where it is deficient in powers : on
which officers I mall make a few curfory remarks.
VII. CHURCHWARDENS are the guardians or keepers of
the church, and reprefentatives of the body of the parifh c .
They are fometimes appointed by the minifter, ibmetimes by
the parifh, fometimes by both together, as cuftom directs.
They are taken, in favour of the church, to be for fome
purpofes a kind of corporation at the common law ; that is,
they are enabled by that name to have a property in goods
and chattels, and to bring actions for them, for the ufe and
profit of the parifh. Yet they may not wafte the church
goods, but may be removed by the parifh, and then called
to account by action at the common law ; but there. is no
method of calling them to account, but by firft removing
them ; for none can legally do it, but thofe who are put in
C 395 ] their place. As to lands, or other real property, as the
church, churchyard, &c. they have no fort of intereft
therein ; but if any damage is done thereto, the parfon only
or vicar fhall have the action. Their office alfo is to repair
the church, and make rates and levies for that purpofe :
but thefe are recoverable only in the ecclefiaftical court.
They are alfo joined with the overfeers in the care and
maintenance of the poor. They are to levy d a (hilling for-
feiture on all fuch as do not repair to church on Sundays
and holidays, and are empowered to keep all perfons or-
c In Sweden they have fimilar offi- Stiernhook, /. 3. c. 7.
cers, whom they call liorckio-wariandes. d Stat. i Eliz. c. 2.
And the ordinary has power to licenfe any curate who fhall be em-
ployed by any reftor, vicar, or other incumbent of a parifh church
or chapel, although ao nomination fhall have been made to him
for that purpofe : or he may revoke his licence, or remove any
curate for a reafonable caufe, but fubject to an appeal to the arch-
bifhop of the province, to be determined in a fummary manner.
derly
Ch. ii. o/* PERSONS. 395
derly while there ; to which end it has been held that a
churchwarden may juftify the pulling off a man's hat, with-
out being guilty of either an afiault or trefpafs e . There
are alfo a multitude of other petty parochial powers com-
mitted to their charge by divers ats of parliament f .
VIII. PARISH clerks and fextons are alfo regarded by the
common law, as perfons who have freeholds in their offices ;
and therefore though they may be punimed, yet they cannot
be deprived, by ecclefiaftical cenfures s . The parifh clerk
was formerly very frequently in holy orders, and fome are
fo to this day. He is generally appointed by the incum-
bent, but by cuftom may be chofen by the inhabitants ;
and if fuch cuftom appears, the court of king's bench will
grant a mandamus to the archdeacon to fwear him in, for
the eftablifhment of the cuftom turns it into a temporal or
civil right h .
e I Lev. 196. tit. church, church-warding vlfitaiioHt,
f See Lambard of churchwardens, at E a Roll. Abr. 234.
the end of his eirenarcba ; and Dr. Burn, h Cro. Car. 589.
VOL. I. N n
396 The RIGHTS BOOK I.
CHAPTER THE TWELFTH.
OF THE CIVIL STATE.
lay part of his majefty's fubje&s, or fuch of the
* people as are not comprehended under the denomina-
tion of clergy, may be divided into three diftint ftates, the
civil, the military, and the maritime.
THAT part of the nation which falls under our firft and
moft comprehenfive divifion, the civil date, includes all
orders of men, from the higheft nobleman to the meaneft pea-
fant, that are not included under either our former divifion,
of clergy, or under one of the two latter, the military and
maritime ftates : and it may fometimes include individuals of
the other three orders j fince a nobleman, a knight, a gen-
tleman, or a peafant, may become either a divine, a foldier,
or a feaman.
THE civil ftate confifts of the nobility and the common-
alty. Of the nobility, the peerage of Great Britain, or lords
temporal, as forming (together with the bifhops) one of the
fupreme branches of the legiflature, I have before fufficiently
fpoken: we are here to confider them according to their
feveral degrees, or titles of honour.
ALL degrees of nobility and honour are derived from the
king as their fountain a : and he nay inftitute what new titles
he pleafes. Hence it is that all degrees of nobility are not of
equal antiquity. Thofe now in ufe are dukes, marquefles,
earls, vifcounts, and barons b .
4 Inft. 363. fubfequent introduflion into this ifland,
b For the original of thefe titles oh fee Mr Selden's titles of honour.
the continent of Europe, and their
I. A (fukt't
Ch.i2. of PERSONS. 397
I. A dukf, though he be with us, in refpeft of his title
of nobility, inferior in point of antiquity to many others,
yet is fuperior to all of them in rank ; his being the firft
title of dignity after the royal family c . Among the Saxons
the Latin name of dukes, duces, is very frequent, and fig-
nified, as among the Romans, the commanders or leaders
of their armies, whom in their own language they called
peneeoja d j and in the laws of Henry I. (as tranflated by
Lambard) we find them called heretochii. But after the Nor-
man conqueft, which changed the military polity of the na-
tion, the kings themfelves continuing for many generations
dukes of Normandy, they would not honour any fubjels
with the title of duke, till the time of Edward III. ; who,
claiming to be king of France, and thereby lofing the ducal in
the royal dignity (i), in the eleventh year of his reign created
his fon, Edward the black prince, duke of Cornwall : and
many, of the royal family efpecially, were afterwards raifed
to the like honour. However, in the reign of queen Eliza-
beth, A.D. 1572% the whole order became utterly extincl: ;
but it was revived about fifty years afterwards by her fuc-
ceflbr, who was remarkably prodigal of honours, in the per-
fon of George Villiers duke of Buckingham.
c Ca.mden. Britan. tit. ordines t country. SehLtit. hon. 4. 1. 14.
d This is apparently derived from e Camden. Britan. tit. ordines. Spel-
the fame root as the German tymjoff, man.
the antient appellation of dukes in that
( 1 ) This reafon is not very fatisfaftory, and, in fa&, this order
of nobility was created before Edward affumed the title of king
of France. Dr. Henry, in his excellent hi dory of England, in-
forms us, that " about a year before Edward III. affumed the
" title of king of France, he introduced a new order of nobility,
" to inflame the military ardour and ambition of his earls and ba-
" rons, by creating his eldeft fon prince Edward duke of Corn-
" wall. This was done with great folemnity in full parliament
" at Weftminfter, March 17. A.D. 1337." Hen. Hift. 8 vol.
135. 8vo. edition. See ante, p. 224. note 10.
N n 2 2. A mar-
397 The RIGHTS BOOK I.
2. A tnarquefs, tnarchio y is the next degree of nobility. His
office formerly was (for dignity and duty were never feparated
by our anceftors) to guard the frontiers and limits of the
kingdom : which were called the marches, from the Teutonic
word, tnarche y a limit: fuch as, in particular, were the marches
of Wales and Scotland, while each continued to be an ene-
my's country. The perfons, who had command there, were
called lords marchers, or marquefles ; whofe authority was
abolifhed by ftatute 27 Hen. VIII. c. 27. : though the title
had long before been made a mere enfign of honour ; Robert
Vere, earl of Oxford, being created marquefs of Dublin, by
Richard II. in the eighth year of his reign f .
C 398 ] 3. AN earl is a title of nobility fo antient, that it's original
cannot clearly be traced out. Thus much feems tolerably
certain : that among the Saxons they are called ealdormen,
quaft elder men, fignifying the fame zsfenior orfenator among
the Romans ; and alfo fchiremen, becaufe they had each of
them the civil government of a feveral divifion or (hire. On
the irruption of the Danes, they changed the name to eor/es,
which, according to Camden 5 , fignified the fame in their
language. In Latin they are called comites (a title firft ufed
in the empire) from being the king's attendants ; " afocietate
" nomenfumpferunt, reges enitn tales Jtbl ajfociant h ." After the
Norman conquefl they were for fome time called counts or
counties, from the French ; but they did not long retain that
name themfelves, though their {hires are from thence called
counties to this day. The name of earls or comites is now be-
come a mere title, they having nothing to do with the govern-
ment of the county ; which, as has been more than once
obferved, is now entirely devolved on the meriff, the earl's
deputy, or vice-comes. In writs and commiffions, and other
formal inftruments, the king, when he mentions any peer
of the degree of an earl, ufually ftiles him, " trufty and well-
" beloved ecu/in :" an appellation as antient as the reign of
Henry IV. : who being either by his wife, his mother, or
f alnft.5. " Bradon./. i.r.8. Flet./. 1.^.5.
8 Briun. tjf. ordinet.
his
Ch. 12. gf PERSONS, 398
his fitters, actually related or allied to every earl then in the
kingdom, artfully and conftantly acknowledged that connec-
tion in all his letters and other public ats : from whence
the ufage has defcended to his fucceflors, though the reafon
has long ago failed.
i
4. The name of vice-comes or vifcount (2) was afterwards
made ufe of as an arbitrary title of honour, without any
(hadow of office pertaining to it, by Henry the fixth; when,
in the eighteenth year of his reign, he created John Beau-
mont a peer, by the name of vifcount Beaumont, which was
the firft inftance of the kind '.
5 A baron's is the moft general and univerfal title of no-
bility ; for originally every one of the peers of fuperior rank
had alfo a barony annexed to his other titles k (3), But it hath
1 a Inft. 5. k a Inft. 5, 6.
( 2 ) Thefe Latin and French words are the fame as ftieriff in
Englifh. This proves the high refpect that was mown to this
officer in ancient times, for his name alone was thought an honour
able title of nobility. See note 8. p. 346.
(3) At the time of the conqueft, the temporal nobility confided
only of earls and barons ; and by whatever right the earls and the
mitred clergy before that time might have attended the great
council of the nation, it abundantly appears that they afterwards
fat in the feudal parliament in the character of barons. It has
been truly faid, that for fome time after the conqueft, wealth was
the only nobility, as there was little perfonal property at that time,
and a right to a feat in parliament was entirely territorial, or de-
pended upon the tenure of landed property. Ever fince the con-
queft, it is true, that all land is held either immediately or medi-
ately of the king j that is, either of the king himfelf, or of a tenant
of the king, or it might be after two or more fubinfeudations.
And it was alfo a general principle in the feudal fyftem, that every
tenant of land, or land owner, had both a right and obligation to
attend the court of his immediate fuperior. Hence every tenant
In capite, i, e. the tenant of the king, was at the fame time entitled
and bound to attend the king's court or parliament, being the great
court baron of the nation.
Nn 3 It
399 The RIGHTS BOOK. I.
fometimes happened that, when an antient baron hath been
raifed to a new degree of peerage, in the courfe of a few ge-
lt will not be neceffary for me here to enlarge farther upon the
original principles of the feudal fyftem, and upon the origin of
peerage ; but I (hall briefly abridge the account which Selden has
given in the fecond part of his Titles of Honour, c. 5. beginning
at the lythfe&ion, being perhaps the cleared: and moft fatisfac-
tory that can be found. He divides the time from the conqueft
into three periods : I. From the conqueft to the latter end of the
reign of king John. 2. From that time to the 1 1 ih of Richard II.
3. From that period to the time he is writing, which may now
be extended to the prefent time. In the firit period, all, who
hold any quantity of land of the king, had, without diftin&ion,
a right to be fummoned to parliament ; and this right being con-
fined folely to the king's tenants, of confequence all the peers of
parliament during that period fat by virtue of tenure and a writ
of fummons.
In the beginning of the fecond period, that is, in the laft year of
the reign of king John, a diftin&ion, very important in it's confe-
quences, (for it eventually produced the lower houfe of parliament, )
was introduced, viz. a divifion of thefe tenants into greater and
leffer barons : for king John, in his magna cbarta declares, faciemus
fummoneri archiepifcopos t efifcofos, ablates, comites et majores barones
regnt jig'dlatim per literas noftras, et praterea faciemus fummoneri in
generali per vicecomites et ballivos noflros omnes alias, qui in capite
tenent de nobis ad cerium diem, &c. See Bl. Mag. Ch. Joh. p. 14.
It does not appear that it ever was afcertained what conftituted a
greater baron, and it probably was left to the king's difcretion to
determine j and no great inconvenience could have refulted from
it's remaining indefinite, for thofe who had not the honour of the
king's letter would have what in effect was equivalent, a general
fummons from the fheriff. But in this fecond period tenure began
to be difregarded, and perfons were fummoned to the parliament
by writ, who held no lands of the king. This continued to be
the cafe till the nth of Rich. II. when the practice of creating
peers by letters patent firft commenced.
In that year John de Beauchamp, fteward of the houfehold to
Rich. II. was created by patent lord Beauchamp baron of Kidder-
minfter in tail male ; and fince that time peerages have been created
both by writ and patent, without any regard to tenure or eitate.
The
Ch. 12, PERSONS.
399
nerations the two titles have defcended differently ; one per-
haps to the male defcendants, the other to the heirs general ;
whereby the earldom or other fuperior title hath fubfifted
without a barony: and there are alfo modern inftances,
where earls and vifcounts have been created without annex-
ing a barony to their other honours : fo that now the rule
doth not hold univerfally, that all peers are barons. The ori-
ginal and antiquity of baronies have occafioned great inquiries
among our Englifh antiquaries. The moft probable opinion
feems to be, that they were the fame with our prefent lords
of manors ; to which the name of court baron (which is the
lord's court, and incident to every manor) gives fome coun-
tenance (4). It may be colle&ed from king John's magna
charta ! , that originally all lords of manors, or barons, that
held of the king in capite y had feats in the great council or
parliament : till about the reign of that prince the conflux
of them became fo large and troublefome, that the king was
obliged to divide them, and fummon only the greater barons
1 cap, 14;
The king's prerogative of creating peers by patent may feem a
great innovation, or a violation of the original principles of the
fyftem ; yet it is one of thofe great changes, which are produced
at the firft by a gentle deviation from the former praftice. For
though this prerogative was not granted to the king by the ex-
prefs authority of parliament, yet it was obtained by it's acqui-
efcence : for I have been aflured by Mr. Townfhend, the Windfor
herald, a gentleman well acquainted with this fubjeft, that patents
of nobility in ancient times generally ftatcd, either that the patent
was granted by the aflent of parliament, or, if granted in the vaca-
tion, they ftated fuch fpecial reafons why the peer was created, as
it might be prefumed would afterwards meet with the approbation
of the parliament.
(4) Lords of manors, who had granted to others by fubinfeu-
dation part of that eftate which they held of the king, would necef-
farily be barons; but it does not follow converfely that a baron was
of necefllty a lord of a manor ; for the king's tenant, who retained
all the eftate granted him, and alienated no part of it, would eer-
tainly be as complete a baron as a lord of a manor.
N n 4 in
399 The RIGHTS BOOK I.
in perfon ; leaving the fmall ones to be fummoned by the
{heriff, and (a? it is faid) to fit by reprefentation in another
houfe ; which gave rife to the feparation of the two houfes
of parliament m . By degrees the title came to be confined
to the greater barons, or lords of parliament only ; and there
were no other barons among the peerage but fuch as were
fummoned by writ, in refpect of the tenure of their lands or
baronies, till Richard the fecond firft made it a mere title
of honour, by conferring it on divers perfons by his letters
patent n .
HAVING made this fhort inquiry into the original of our
feveral degrees of nobility, I {hall next confider the manner
in which they may be created. The right of peerage feems
to have been originally territorial ; that is, annexed to lands,
honours, caftles, manors, and the like, the proprietors and
C 400 ] poffeflbrs of which were (in right of thofe eftates) allowed to
be peers of the realm, and were fummoned to parliament to
do fuit and fervice to their fovereign : and, when the land
was alienated, the dignity pafled with it as appendant. Thus
the bifhops ftill fit in the houfe of lords in right of fuccef-
fion to certain antient baronies annexed, or fuppofed to be
annexed, to their epifcopal lands : and thus, in 1 1 Hen. VI.,
the poffeflion of the caftle of Arundel was adjudged to con-
fer an earldom on it's pofleflbr p . But afterwards when
alienations grew to be frequent, the dignity of peerage was
confined to the lineage of the party ennobled, and inftead
of territorial became perfonal. Actual proof of a tenure
by barony became no longer neceflary to conftitute a lord
of parliament j but the record of the writ of fummons to
him or his anceftors was admitted as a fufEcient evidence of
the tenure,
PEERS are now created either by writ, or by patent : for
thofe who claim by prefcription muft fuppofe either a writ or
01 Gilb.hift.of exch. c. 3. Seld. tit. Clan. /. 7. c. i.
of hon. a. 5. ax. P Seld, tit. of hon. b. a. c. 9. 5.
n j i Inft, 9. Seld. Jan. Angl. a. 66,
patent
Ch. is. ^PERSONS. 400
patent made to their anceftors ; though by length of time it
is loft. The creation by writ, or the king's letter, is a fum-
mons to attend the houfe of peers, by the ftile and title of
that barony, which the king is pleafed to confer : that by
patent is a royal grant to a fubjet of any dignity and de-
gree of peerage. The creation by writ is the more antient
way ; but a man is not ennobled thereby, unlefs he actually
takes his feat in the houfe of lords : and fome are of opinion
that there muft be at leaft two writs of fummons, and a
fitting in two diftinft parliaments, to evidence an heredi-
tary barony q : and therefore the moft ufual, becaufe the
fureft, way is to grant the dignity by patent, which enures
to a man and his heirs according to the limitations thereof,
though he never himfelf makes ufe of it r . Yet it is fre-
quent to call up the eldeft fon of a peer to the houfe of
lords by writ of fummons, in the name of his father's ba-
rony : becaufe in that cafe there is no danger of his chil-
dren's lofing the nobility in cafe he never takes his feat ; for
they will fucceed to their grandfather (5). Creation by
writ has alfo one advantage over that by patent : for a per-
fon created by writ holds the dignity to him and his heirs, 401
without any words to that purport in the writ (6) ; but in
Whitelock of parL ch. 114. r Co. Litt. 1 6.
(5) And where the father's barony is limited by patent to him
and the heirs male of his body, and his eldeft fon is called up to
the houfe of lords by writ with the title of this barony, the writ
in this cafe will not create a free or a general eftate tail, fo as to
make a female capable of inheriting the title, but upon the death
of the father the two titles unite, or become one and the fame.
Cafe of the claim to the barony of Sidney of Penftiurft. difallowed.
jDom. Proc. 17 June 1782.
( 6) Though this is the authority of lord Coke, it is now under-
ftood to be erroneous ; a creation by writ does not confer a fee-
fimple in the title, but only an eftate tail general ; for every
claimant of the title muft be defcended from the perfon firft enno-
bled, I Woodd. 37.
letters
401 The RIGHTS BOOK I.
letters patent there muft be words to direct the inheritance,
elfe the dignity enures only to the grantee for life s . For
a man or woman may be created noble for their own lives,
and the dignity not defcend to their heirs at all, or defcend
only to fome particular heirs : as where a peerage is limited
to a man, and the heirs male of his body by Elizabeth his
prefent lady, and not to fuch heirs by any former or future
wife.
LET us next take a view of a few of the principal incidents
attending the nobility, exclufive of their capacity as members
of parliament, and as hereditary counfellors of the crown ;
both of which we have before considered. And firft we
muft obferve, that in criminal cafes a nobleman mall be
tried by his peers (7). The great are always obnoxious to
popular envy : were they to be judged by the people, they
might be in danger from the prejudice of their judges ;
and would moreover be deprived of the privilege of the
meaneft fubjets, that of being tried by their equals, which
is fecured to all the realm by magna charta, c. 29. It is
faid, that this does not extend to bifhops : who, though
they are lords of parliament, and fit there by virtue of
their baronies which they hold jure eccleftae, yet are not
ennobled in blood (8), and confequently not peers with
8 Co. Litt. 9. 1 6.
( 7 ) A nobleman is tried by his peers only in treafon and felony,
and mifprifion of the fame ; but in all mifdemeanours, as libels, riots,
perjury, confpiracies, &c. he is tried like a commoner by a jury.
3 Inft. 30. 2 Hawk. 424.
(8) It has always appeared to me that the reafon given in the
books, why bifhops mould not be tried in parliament like the
temporal lords, viz. becaufe they are not ennobled by blood, or, as
Selden exprefles it, becaufe their honour is not inheritable ( Jucl.
in Parl. c. \.}. is unfatisfaftory and even trifling.
If this reafon has any operation, why mould it not be extended,
and deprive them of all the rights of peerage ? A peer may be
created
Ch. 1 2. of PERSONS. 401
the nobility s . As to peerefles, there was no precedent for
their trial when accufed of treafon or felony, till after
Eleanor duchefs of Gloucefter, wife to the lord protector,
was accufed of treafon and found guilty of witchcraft,
in an ecclefiaftical fynod, through the intrigues of cardinal
Beaufort. This very extraordinary trial gave occafion to
a fpecial ftatute, 20. Hen. VI. c. 9. which declares 1 the law
to be, that peerefles, either in their own right or by mar-
riage, fhall be tried before the fame judicature as other
peers of the realm. If a woman, noble in her own right,
marries a commoner, me Hill remains noble (9), and mall
be tried by her peers : but if me be only noble by mar-
riage, then by a fe^ond marriage with a commoner, (he
lofes her dignity ; for as by marriage it is gained, by mar-
riage it is alfo loft u (10). Yet if a duchefs dowager
Inft. 30, 31. Staundf. P. C. 152.
* Moor. 769. Infl.jo. 6 Rep. 153. u Dyer, 79. Co. Lite. 16.
created by patent for his own life only ; and it cannot be fuppofed
that fuch a nobleman would not be entitled to a trial by his peers
in parliament. If there were any trials of bifhops by a jury in
remote times, the bifhops could not have demanded a trial in par-
liament without admitting themfelves fubje<5t to a temporal jurif-
diftion, from which the clergy in ancient times claimed a total
exemption. Hence it may be conjectured the bifhops have loft
their right to be tried in parliament, though only two inftances
can be found of their being tried by a jury, viz. thofe of arch-
bifhop Cranmer and bifhop Fifher. 2 Hawk. 596.
(9) But me communicates no rank or title to her hufband.
Harg. Co. Lift. 326. b. There have been claims, and thefe are
fupported by authorities, by a hufband after iffue to affume the
title of his wife's dignity, and after her death to retain the fame
as tenant by the courtefy ; but from Mr. Hargrave's ftatement of
this fubjeft, in Co. Litt.zy b. n. i. there is no probabib'ty that
fuch a claim would now be allowed.
( 10) Yet fhe is commonly called and addrefled by the ftile and
title which fhe bore before her fecond marriage, but this is only
by courtefy ; as the daughters of dukes, marquiffes, and earls are
ufually
4oi The RIGHTS BOOK I.
marries a baron, fhe continues a duchefs ftill ; for all the
402 ] nobility are fares, and therefore it is no degradation u .
A peer, or peerefs, (either in her own right or by mar-
riage,) cannot be arrefted in civil cafes v : and they have
alfo many peculiar privileges annexed to their peerage in
the courfe of judicial proceedings. A peer fitting in judg-
ment, gives not his verdict upon oath, like an ordinary
juryman, but upon his honour w : he anfwers alfo to bills
in chancery upon his honour, and not upon his oath x ;
but when he is examined as a witnefs either in civil or
criminal cafes, he muft be fworny(n): for the refpeft,
which the law (hews to the honour of a peer does not ex-
tend fo far as to overturn a fettled maxim, that in judicio
non creditor nijt juratis z . The honour of peers is however
fo highly tendered by the law, that it is much more penal
to fpread falfe reports of them and certain other great of-
ficers of the realm, than of other men : fcandal againft
them being called by the peculiar name of fcandalttm mag-
natum y and fubje&ed to peculiar puniftiments by divers
antient ftatutes a .
A PEER cannot lofe his nobility, but by death or at-
tainder; though there was an inftance in the reign of
u a Inft. 50. y Salk.jia.
T Finch. L, 355. i Vent. apS. z Cro. Car. 64.
w InR. 49- 3 Edw. I. c. 34. a Ric. II. ft. i.
x i P. Wins. 146. c. 5. 12 Ric. II, c. u.
ufually addrefled by the title of lady, though in law they are
commoners. In a writ of partition brought by Ralph Haward
and lady Anne Powes his wife, the court held that it was a mif-
nomer, and that it ought to have been by Ralph Haward and
Anne his wife, late wife of lord Powes deceafed. Dyer, 79.
( 1 1 ) If he is examined as a witnefs in the high court of parlia-
ment, he muft be fworn. The bifhop of Oxford was fvvorn in the
impeachment of lord Macclesfield, and lord Mansfield, (then lord
Stormont,) in that of Mr. Haftinga.
Edward
Ch. i2. gf PERSONS. 402
Edward the fourth of the degradation of George Nevile
duke of Bedford, by aft of parliament b , on account of his
poverty, which rendered him unable to fupport his dig-
nity . But this is a fmgular inftance: which ferves at
the fame time, by having happened, to ftiew the power of
parliament; and, by having happened but once, to {hew
how tender the parliament hath been, in exerting fo high
a power. It hath been faid indeed d , that if a baron waftes
his eftate, fo that he is not able to fupport the degree, the
king may degrade him : but it is exprefsly held by later
authorities e , that a peer cannot be degraded but by ad of
parliament.
THE commonalty, like the nobility, are divided into [ 403 ]
feveral degrees ; and as the lords, though different in rank,
yet all of them are peers in refpecl: of their nobility, fo
the commoners, though fome are greatly fuperior to others,
yet all are in law peers, in refpeft of their want of no-
bility f .
THE firft name of dignity, next beneath a peer, was
antiently that of vidames, vice-domini, or valvafors s : who are
mentioned by our antient lawyers h as viri magnae dignitatis j
and fir Edward Coke } fpeaks highly of them. Yet they are
now quite out of ufe ; and our legal antiquaries are not agreed
upon even their original or antient office.
Now therefore the firft perfonal dignity, after the nobi-
lity, is a knight of the order of St. George, or of the garter
b 4 Inft. 355. " trouble of all fuch countries where
c The preamble to the aft is remark- " fuch eftate lhall happen to be ; there-
able; " forafmuch as oftentimes it is " fore, &c."
" feen, that when any lord is called to d Moor. 678.
" high eftate, and hath not convenient e izRep. 107. iz Mod. 56.
"livelihood to fupport the lame dig- f 2 Inft. 29.
" nity, it tnduceth great poverty and e Catnden. Britan. t, erJinei,
" indigence, and caufeth oftentimes h Brafton. /. i. c. 8.
" great extortion, embracery, and main- ' ^ Tnft. 667.
" tenance to be had ; to the great
firft
403 The RIGHTS BOOK I.
firft Inftituted by Edward III., A. D. 1344 k . Next (but
not till after certain official dignities, as privy counfellors, the
chancellors of the exchequer and duchy of Lancafter, the
chief juftice of the king's bench, the mailer of the rolls,
and the other Englifh judges) follows a knight banneret }
who indeed by ftatutes 5 Ric. II. ft. 2. c. 4. and 14 Ric. II.
c. II. is ranked next after barons; and his precedence
before the younger fons of vifcounts was confirmed to him
by order of king James I., in the tenth year of his reign l .
But, in order to entitle himfelf to this rank, he muft have
been created by the king in perfon, in the field, under the
royal banners, in time of open war m . Elfe he ranks after
baronets s who are the next order ; which title is a dignity
of inheritance, created by letters patent, and ufually de-
fcendible to the iflue male. It was firft inftituted by king
James the firft, A. D. 1611 ; in order to raife a competent
fum for the redu&ion of the province of Ulfter in Ire-
land (12); for which reafon all baronets have the arms of
[404] Ulfter fuperadded to their family coat (13). Next follow
knights of the bath ; an order inftituted by king Henry IV.
and revived by king George the firft. They are fo called
from the ceremony of bathing, the night before their crea-
tion. The laft of thefe inferior nobility are knights bache-
lors (14); the moft antient, though the loweft order of
k Seld. tit. of hon. 3.5. 41. m 4 Inft. 6.
1 Ibid. 2. xi. 3.
(12) One hundred gentlemen advanced each one thoufand
pounds, for which this title was conferred upon them, i Rep.
i^.fo.
( 13 ) The arms of Ulfter are, a hand gules, or a bloody hand in a
field argent.
( 14) The moft probable derivation of the word bachelor is from
lias and chevalier, an inferior knight ; and thence latinized into the
barbarous word Bacalaureus. Ducange. Sac.
The loweft graduates in the univerfities are bachelors, and
were, till lately, addreffed with fir before their furname ; as in
Latin
Ch. 12.' of PERSONS. 404
knighthood amongft us : for we have an inftance n of king
Alfred's conferring this order on his fon Athelftan. The
cuftom of the antient Germans was to give their young
men a (hield and a lance in the great council : this was
equivalent to the toga virilis of the Romans : before this
they were not permitted to bear arms, but were accounted
as part of the father's houfehold ; after it, as part of the
community . Hence fome derive the ufage of knighting,
which has prevailed all over the weftern world, fince it's
reduction by colonies from thofe northern heroes. Knights
are called in Latin equites aurati : aurati from the gilt fpurs
they wore; and equites, becaufe they always ferve'd on
horfeback : for it is obfervable p , that almoft all nations call
their knights by feme-appellation derived from an horfe (15).
They are alfo called in our law milites, becaufe they formed
a part of the royal army, in virtue of their feudal tenures ;
one condition of which was, that every one who held
a knight's fee immediately under the crown (which in
Edward the fecond's time q amounted to 2O/. per annum] was
obliged to be knighted, and attend the king in his wars,
or fine for his non-compliance. The exertion of this
prerogative as an expedient to raife money in the reign
of Charles the firft, gave great offence ; though warranted
by la.w, and the recent example of queen Elizabeth (16):
n Will. Malmfb. lib. . ' f Camb. ibid. Co. Litt. 74.
Tac. de Morib. Germ. 13. 1 Stat.de milit. I Ed. If.
Latin they are ftill called dotnini. It is fomewhat remarkable, that
whilfl this feudal word has long been appropriated to fingle men,
another feudal term of higher dignity, viz. baron, mould, in legal
language, be applied to thofe who are married.
(15) It does not appear that the Englifh word knight has any
reference to a horfe ; for knight, or cmht in t"he Saxon, fignified
puer, fervus, or attendant. 2 Seld. tit. hon. c. 5. f. 33.
(16) Confiderable fees accrued to the king upon the perform-
ance of the ceremony. Edward VI. and queen Elizabeth had
appointed commifiioners to compound with all perfons, who had
lands
404 The RIGHTS BOOK I.
but it was by the ftatute 16 Car. I. c. 16. abolifhed ; and this
kind of knighthood has, (ince that time, fallen into great
difregard.
THESE, fir Edward Coke fays r , are all the names of
dignity in this kingdom, efquires and gentlemen being only
names of worjhip. But before thefe laft the heralds rank all
[ 405 ] colonels, ferjeants at law, and doctors in the three learned
profeffions ".
' a Inft. 667.
The rules of precedence in Eng- tit. of hon. II. 5. 46. and II. II. 3.
land may be reduced to the following marked f , by antient ufage and
table : in which thofe marked * are eftabliflied cuftom ; for which fee
entitled to the rank here allotted (among others) Camden's Britannia,
them, by ftatute 31 Hen. VIII. c. 10. ///. ordines. Milles's catalogue of ho-
marked f, by ftatute i W. & M. nour, edit. 1610. and Chamberlayne's
c.ai. ^-marked ||, by letters patent, prefent State of England, p. 3. ch. 3.
9, 10, and 14 Jac. I. which fee in Scld.
TABLE OF PRECEDENCE.
* The king's children and grand- * The king's uncles,
children. * nephews.
* .. brethren. * Archbifliop of Canterbury (17).
Lord
lands to the amount of 4O/.^ year, and who declined the honour
and expence of knighthood. Charles the firft followed their ex-
ample ; upon which Mr. Hume artfully remarks, " that nothing
*' proves more plainly how ill-difpofed the people were to the
" meafures of government, than to obferve, that they loudly
" complained of an expedient, founded on pofitive ftatute, and
" warranted by fuch recent precedents. 6 Vol. 296.
(17) It is faid, that before the conqueft, by a conftitution of
pope Gregory, the two archbifhops were equal in dignity, and in
the number of bifhops fubje& to their authority ; and that William
the conqueror thought it prudent to give precedence andfuperiority
to the archbifliop of Canterbury ; but Thomas archbifhop of York
was unwilling to acknowledge his inferiority to Lanfranc arch-
bifliop of Canterbury, and appealed to the pope, who referred the
matter to the king and barons ; and in a council held at Windfor-
caftle,
Ch. 12.
of PERSONS.
406
ESQUIRES and gentlemen are confounded together by fir
Edward Coke, who obferves*, that every efquire is a gentle-
Lord chancellor or keeper, if a
Archbifliop of York.
Lord treafurer.
Lord prefident of thecounc
Lord privy feal.
Lord great chamberlain. But *
fee private ftat. i Geo. I. 0.3.
Lord high conftable.
Lord marftial.
Lord admiral.
Lord fte ward of the houfehold.
Lord chamberlain of the houfe-
hold.
Dukes.
Marquefles.
Dukes' eldeft fons.
Earls.
Marquefles' eldeft fons.
Dukes' younger fons.
Vifcounts.
Earls' eldeft fons.
Marquefles' younger fons.
Secretary of ftate, if a bifliop.
Biihop of London.
..... Durham.
Winchefter.
baron. * Bifhops.
^* Secretary of ftate, if a baron.
* Barons,
if barons, f Speaker of the houfe of commons.
f- Lords commiffioners of the great feat
f Vifcounts' eldeft fons.
'o jj % Earls' younger fons.
g 50 J Barons' eldeft fons.
%-"%. || Knights of the Garter.
T3 | || Privy counfellors.
| .h || Chancellor of the exchequer.
S || Chancellor of the duchy.
|| Chief juftice of the king's bench.
|| Mafter of the Rolls.
|| Chief jufl ice of the common pleas,
|| Chief baron of the exchequer.
U Judges and barons of the coif.
y Knights bannerets royal.
y Vifcounts' younger fons.
I) Barons' younger fons.
|| Baronets.
|| Knights bannerets.
| Knights of the Bath.
| Knights bachelors.
y Baronets' eldeft fons.
H Knights' eldeft fons.
[I Baronets'
a Inft. 668.
caftle, they decided in favour of the archbifhop of Canterbury.
God-w. Comm. de Preful. 665.
But the archbifhop of York long afterwards refufed to ac-
quiefce in this decifion, for bifhop Godwin relates a curious
and ludicrous ftruggle, which took place in the reign of Hen. II.
above one hundred years afterwards, between Roger archbifliop
of York, and Richard archbifhop of Canterbury, for the chair
on the right hand of the pope's legate. Ib. 79. Perhaps to this
decifion, and their former equality, we may refer the prefent
diftin&ion between them ; viz. that the archbifhop of Canterbury
is primate of all England, and the archbifhop of York is primate
of England.
VOL. I. O o man,
46 The RIGHTS BOOK I.
man, and a gentleman is defined to be one qui arma gerit,
who bears coat armour, the grant of which adds gentility to
a man's family ; in like manner as civil nobility, among the
Romans, was founded in the jus imaginum, or having the
image of one anceftor at leaft, who had borne fome curule
office. It is indeed a matter fomewhat unfettled, what con-
ftitutes the diftin&ion, or who is a real efquire ; for it is not
an eftate, however large, that confers this rank upon it's
owner. Camden who was himfelf a herald, diftinguifhes
them the moft accurately ; and he reckons up four forts of
them': i. The eldeft fons of knights, and their eldeft fons
in perpetual fucceffion". 2. The eldeft fons of younger fons
of peers, and their eldeft fons in like perpetual fucceffion :
both which fpecies of efquires fir Henry Spelman entitles
armigeri natalit'ii*. 3. Efquires created by the king's letters
patent or other inveftiture (18), and their eldeft fons,
H Baronets' younger font. \ Gentlemen.
J Knights' younger Tons. \ Yeomen,
i Colonels. * Tradefmen.
J Serjeants at law. \ Artificers.
\ Doctors. | Labourers,
j Efquires.
N. B. Married women and widows feffional or official ; and unmarried
are entitled to the fame rank among women to the fame rank as their eldeft
each other, at their hufbands would brothers would bear among men, during
refpedlively have borne between them- the lives of their fathers
felves, except fuch rank is merely pro-
a Inft. 668. * Inft. 667. w Glofl. 4 3.
( 1 8) This creation has long being difufed. Efquires thus created
were invefted cakaribus argentatis, to diftinguifh them from the
equites aurati. In the life of Chaucer, we are told that he was
created fcutifer to Edward III. Scutifer is the fame as armiger ;
and our word efquire is derived fromfcvtum, or the French, c/cu, a
fhield.
In the two lail heraldic proceffions at the funerals of Lord Nel-
fon and Mr. Pitt, mailers in chancery and ferjeants at law had
precedence before knights ; bachelors and matters in chancery
had the place inferior to ferjeanta at law.
The
Ch. 12. of PERSONS. 406
4. Efquires by virtue of their offices : as juftices of the peace,
and others who bear any office of truft under the crown (19.)
To thefe may be added the efquires of knights of the bath,
each of whom conftitutes three at his inftallation : and all
foreign, nay, Irifh peers ; for not only thefe, but the eldeft
fons of peers of Great Britain, though frequently titular
lords, are only efquires in the law, and muft be fo named in
all legal proceedings* (20). As for gentlemen, fays fir
Thomas Smith y , they be made good cheap in this king-
dom: for whofoever ftudieth the laws of the realm, who
ftudieth in the univerfities, who profefieth the liberal fciences,
and (to be fhort) who can live idly, and without manual
labour, and will bear the port, charge, and countenance of a
gentleman, he (hall be called mailer, and {hall be taken for
* 3 Tnft. 30. a Intt. 667. * Common w. of England, b. I. c. ao.
The heralds fay, that admirals and captains in the navy, and
generals, colonels, and officers in the army, have no rank or place
affigned them in a proceffion.
(19) I cannot but think that this is too extenfi ve a defcription
of an efquire, for it would beftow that honour on every excife-
man and cuftom-houfe officer : it probably ought to be limited to
thofe only who bear an office of truft under the crown, and who
are ftyled efquires by the king in their commiffions and appoint-
ments ; and all, I conceive, who are once honoured by the king
with the title of efquire, have a right to that diftinftion for
life.
(20) It is rather remarkable that the learned judge mould have
forgotten to mention another clafs of efquires, viz. barrifter. Sir
Henry Spelman is of opinion that their claim to this title is
founded in ufurpation, for with fome fpleen he informs us, certe
altero bine fttculo nominati/Jimus in f atria jurifconfultus, state provec-
tior, etiam munere gaudens publico et prediis amp/iflimir, generoji titulo
bene fe habuit ; forte, quod togatue genti magis tune conveniret civilit
ilia appellatio quam caftrenjis altera. Glojf. voc. Arm. But this
length of enjoyment has eftablifhed fuch a right to this diftinc-
tion, that the court of common pleas refufed to hear an affidavit
read, becaufe a barrifter named in it was not called an efquire.
i Wilf. 244-
O o 2 a gentle-
406 The RIGHTS BOOK I.
a gentleman (21). A yeoman is he that hath free land of
forty {hillings by the year ; who was antiently thereby qua-
t 407 3 Hfied to ferve on juries, vote for knights of the (hire, and do
any other aft, where the law requires one that is probus et
legalis homo *. -
THE reft of the commonalty are tradefmen^ artificers, and
labourers ; who, (as well as all others) muft in purfuance of
the ftatute i Hen. V. c. 5. be ftyled by the name and addi-
tion of their eftate, degree, or myftery, and the place to
which they belong, or where they have been converfant, in
all original writs of actions perfonal, appeals, and indict-
ments, upon which procefs of outlawry may be awarded (22) ;
in order, as it fhould feem, to prevent any clandeftine or
miftaken outlawry, by reducing to a fpecific certainty the
perfon who is the object: of it's procefs (23).
* a Inft. 668.
(21) The eldeft fon has no prior claim to the degree of gentle-
man ; for it is the text of Littleton, that " every fon is as great a
" gentleman as the eldeft." Sefl. 210.
(22) Informations in the nature of quo ivarranto, are not within
the ftatute of additions. I Wils. 244.
(23) Thefe are the ranks and degrees into which the people of
England are divided, and which were created, and are preferved,
for the reciprocal prote&ion and fupport of each other. But to
excite difcontent, and to ftir up rebellion againft all good order
and peaceful government, a propofition has lately been induftri-
oufly propagated, viz. that all men are by nature equal. If this
fubjeft is confidered even for a moment, the very reverfe will ap-
pear to be the truth, and that all men are by nature unequal. For
though children come into the world equally helplefs, yet in a
few years, as foon as their bodies acquire vigour, and their minds
and pafiions are expanded and developed we perceive an infinite
difference in their natural powers, capacities, and propenfities ;
and this inequality is ftill further increafed by the inftruftion which
they happen to receive.
Independent of any pofitive regulations, the unequal induftry
and virtues of men muft neceffarily create unequal rights. But
Ch. 12. of PiiRSONS.
407
h is faid that all men are equal becaufe they have an equal right
to juftice, or to the poffeffion of their rights. This is a felf-
evident truth, which no one ever denied, and it amounts to no-
thing more than to the identical propofition, that all men have
equal rights to their rights ; for when different men have perfect
and abfolute rights to unequal things, they are certainly equal
with regard to the perfection of their rights, or the juftice that is
due to their refpe&ive claims. This is the only fenfe in which
equality can be applied to mankind. In the moft perfect repub-
lic that can be conceived in theory, the propofition is falfe and
mifchievous ; the father and child, the mailer and fervant, the
judge and prifoner, the general and common foldier, the reprefent-
ative and conftituent, muft be eternally unequal, and have unequal
rights.
And where every office is elective, the moft virtuous and the
belt qualified to difcharge the duties of any office have rights
and claims fuperior to others.
One celebrated philofopher has endeavoured to prove the natu-
ral equality of mankind, by obferving, " that the weakeft has
" ftrength enough to kill the ftrongeft, either by fecret machina-
" tions, or by confederacy with others that are in the fame dan-
" ger with himfelf." Hobbes' Lev. c. xiii.
From fuch a doftrine, fupported by fuch reafons, we cannot be
furprifed at the confequences, when an attempt is made to reduce
it to pra&ice.
Subordination in every fociety is the bond of its exiftence ;
the higheft and the loweft individuals derive their ftrength and
fecurity from their mutual affitlance and dependence ; as in the na-
tural body, the eye cannot fay to the hand, I have no need of thee ;
nor again the head to the feet , I have no need of you. Milton was
fo convinced of the neceffity of fubordination and degrees, that
he makes Satan, even when warring againft the king of heaven,
addrefs his legions thus :
If not equal all, yet free,
Equally free : for orders and degrees
Jar not with liberty, but well conlift. B. 5. /. 790.
And this is alfo beautifully defcribed by Shakefpeare, who
every where makes his beft characters utter the moft juft and
correct fentiments refpec\ing juftice, liberty, and good govern-
ment.
O o 3 Take
407 The RIGHTS BOOK I.
Take but degree away, untune that ftring,
And hark what difcord follows, each thing meets
In mere oppugnancy.
Strength would be lord of imbecility,
And the rude fon would ftrike the father dead.
Force would be right, or rather right and wrong,
Between whofe endlefsjar juftice refides,
Would lofe their names, and fo would juftice too.
Trail, and Creff. $th Scene,
Family diftin&ions, when atchieved by meritorious aftions, com-
mand the reverence of all mankind, ev yevsn; yap uvou SOKOVO-H/, OH;
wapxet vpeyovuv apery xai icXovro;. Arift. Eth. Lib. 5. C. I.
To be well-born is to inherit wealth acquired by the virtues of
our anceftors.
True liberty refults from making every high degree acceflible
to thofe who are in a lower, if virtue and talents are there found
to deferve advancement.
No one in this happy country is for ever condemned to con-
tinue in the lowed ranker caft ; but whilft he does his duty in that
ftation in which it has pleafed God originally to place him, he
may prove that he is deferving of advancement to a higher ftep
in the gentle gradation of a free conftitution.
Such is the excellence of the Englifti government, that the fon
of the loweft peafant may rife by his merit and abilities to the
higheft ftations in the church, law, army, navy, and in every de-
partment of the ftate ; nor is there any limit to the accumulation
of his wealth by honeft induftry.
The do&rine, that all men are, or ought to be, equal, is little
lels contrary to nature, and deftru&ive of their happinefs, than
the invention of Procruftes, who attempted to make men equal
by ftretching the limbs of fome, and lopping off thofe of others.
But the experiment has been tried, and the refult has hitherto
been (an awful warning to the world) a rapid fucceffion of affafli-
nations, judicial murders, profcriptions, and ufurpation.
Ceterum tibcrtas et fpeciofa nomina pratexuntur ; ncc quifquam
alienum fervitium et dominatlonem Jibi concupivif, ut non eadem ifta
vocabula vfurpa'-ei Tac. Hift. iv. c. 73.
Ch. 13. of PERSONS. 408
CHAPTER THE THIRTEENTH.
OF THE MILITARY AND MARITIME
STATES.
HPHE military ftate includes the whole of the foldiery,
-* or fuch perfons as are peculiarly appointed among
the reft of the people for the fafeguard and defence of the
realm.
IN a land of liberty it is extremely dangerous to make a
diftincl: order of the profeffion of arms. In abfolute monar-
chies this is neceflary for the fafety of the prince, and arifes
from the main principle of their conftitution, which is that
of governing by fear ; but in free ftates the profeffion of a
foldier, taken fingly and merely as a profeffion, is juftly an
object of jealoufy. In thefe no man mould take up arms,
but with a view to defend his country and it's laws : he
puts not off the citizen when he enters the camp ; but it is
becaufe he is a citizen, and would wifti to continue fo, that
he makes himfelf for a while a foldier. The laws there-
fore and conftitution of thefe kingdoms know no fuch ftate
as that of a perpetual ftanding foldier, bred up to no other
profeffion than that of war : and it was not till the reign of
Henry VII. that the kings of England had fo much as a
guard about their perfons.
O o 4 IN
408 The RIGHTS BOOK I.
IN the time of our Saxon anceftors, as appears from Ed-
ward the confeflbr's laws a , the military force of this king-
dom was in the hands of the dukes or heretochs, who were
conftituted through every province and county in the king-
dom ; being taken out of the principal nobility, and fuch as
were moft remarkable for being " fapientesyjidelesj et ani-
" moft" Their duty was to lead and regulate the Englifh
[ 49 ] armies, with a very unlimited power ; " prout eis vifum fu-
tf erity ad honorem coronas et utilitatem regni" And becaufe
of this great power they were elected by the people in their
full aflembly, or folkmote, in the fame manner as fheriffs
were elected : following (till that old fundamental maxim
of the Saxon conftitution, that where any officer was in-
trufted with fuch power, as if abufed might tend to the
oppreffion of the people, that power was delegated to him
by the vote of the people themfelves b . So too, among the
antient Germans, the anceftors of our Saxon forefathers,
they had their dukes as well as kings, with an independent
power over the military, as the kings had over the civil (late.
The dukes were elective, the kings hereditary : for fo only
can be confiftently underftood that paflage of Tacitus c
reges ex nobilitate, duces ex virtute fumunt ;" in conftituting
their kings, the family or blood-royal was regarded, in
chufing their dukes or leaders, warlike merit : juft as Czefar
relates of their anceftors in his time, that whenever they
went to war, by way either of attack or defence, they elected
leaders to command them d . This large fliare of power,
thus conferred by the people, though intended to preferve
the liberty of the fubjeft, was perhaps unreafonably detri-
mental to the prerogative of the crown ; and accordingly
we find a very ill ufe made of it by Edric duke of Mercia,
c. de heretocbiis. LL. Ed-w. Con/eft. Hid. See alfo Bede,
k " IJti vero -viri eliguntur per com~ eccl. hijl. 1. 5. c. IO.
" mune eonftlium, pro communi utilitate c De Morlb. Germ, J.
**" rcpniipcr prwlncias et patrias unfaer- d " Quutn helium ci*vit<is aut illatutrt
" fat, et per fmgulos comitatui in plena " defendit aut infert, tnagiftratuj qu't
*' foltmote, fieut et -vicecomitei provin- " ft hello pracfint deliguntur" De Ml.
" datum el ctmltatuum eligi detent." Gall. I. 6. c. 22.
in
Ch. 1 3V of PERSONS.
in the reign of king Edmund Ironfide, who, by his office of
duke or heretoch, was entitled to a large command in the
king's army, and by his repeated treacheries at laft transferred
the crown to Canute the Dane.
IT feems univerfally agreed by all hiftorians, that king
Alfred firft fettled a national militia in this kingdom, and by
his prudent difcipline made all the fubjedls of his dominion
foldiers ; but we are unfortunately left in the dark as to the
particulars of this his fo celebrated regulation j though, from
what was laft obferved, the dukes feem to have been left in [ 410
pofieffion of too large and independent a power ; which
enabled duke Harold, on the death of Edward the confeflbr,
though a ftranger to the royal blood, to mount, for a fhort
fpace, the throne of this kingdom, in prejudice of Edgar
Atheling, the rightful heir.
UPON the Norman conqueft the feodal law was introduced
here in all it's rigour, the whole of which is built on a military
plan. I fhall not now enter into the particulars of that con-
ftitution, which belongs more properly to the next part of
our Commentaries * but fhall only obferve, that in confe-
quence thereof all the lauds in the kingdom were divided
into what were called knight's fees, in number above fixty
thoufand ( i ) ; and for every knight's fee a knight or foldier,
miles, was bound to attend the king in his wars, for forty days
in a year (2) ; in which fpace of time, before war was reduced
to a fcience, the campaign was generally finifhed, and a king-
dom either conquered or victorious e . By this means the king
e The Poles are, even at this day, cannot be compelled to ferve above fix
fo tenacious of their antient conftitu- weeks, or forty days, in a year. Mod.
tion, that their pofpolite, or militia, Un. Hift. xxxiv. ta.
(1) 60,215.
(2) We frequently read of half a knight, or other aliquot part,
as for fo much land three knights and a half, &c. were to be re-
turned ; the fra&ion of a knight was performed by a whole knight
who fervcd half the time, or other due proportion of it.
had,
4i o The RIGHTS BOOK I.
had, without any expenfe, an army of fixty thoufand men
always ready at his command. And accordingly we find one,
among the laws of William the conqueror f , which in the
king's name commands and firmly enjoins the perfonal attend-
ance of all knights and others ; " quod habeant et teneant
" ftftntper in armis et equis, ut decet et oportet : et quodfempet
' " Jtnt prompti et parati ad fervitium fuum integrum nobis
" explendum et peragendum, cum opus adfuerit, fecundum quod
" debent defoedis et tenementis fuls de jure nobisfacere" This
perfonal fervice in procefs of time degenerated into pecuniary
commutations or aids, and at laft the military part (3) of
the feodal fyftem was abolifhed at the reftoration, by ftatute
1 2 Car. II. c. 24.
IN the mean time we are not to imagine that the kingdom
was left wholly without defence in cafe of domeftic infur-
re&ions, or the profpecl: of foreign invafions. Befides thofe
who by their military tenures were bound to perform forty
[ 411 ] days' fervice in the field, firft the aflize of arms, enacted *
27 Hen. II. and afterwards the ftatute of Winchefter h , under
Edward I. obliged every man, according to his eftate and de-
gree, to provide a determinate quantity of fuch arms as were
then in ufe, in order to keep the peace : and conftables were
appointed in all hundreds by the latter ftatute, to fee
that fuch arms were provided. Thefe weapons were
changed by the ftatute 4 & 5 Ph. & M. c. 2. into others
of more modern fervice j but both this and the former pro-
vifions were repealed in the reign of James I. l While thefe
continued in force, it was ufual from time to time for our
princes to iflue commifiions of array, and fend into every
* c. 58. See Co. Litt. 75, 76. ' Stat. i Jac. I. c. aj. zi Jac. f.
Hoved. A. D. ri8i. c. a8.
* ijEdw.I. c.6.
( 3 ) The military or warlike part of the feudal fyftem was abo-
hfhed, when perfonal fervice was difpenfed with for a pecuniary
commutation, as early as the reign of Henry II. But the military
tenures ftill remained till 12 Car. II. c. 24. See 2 vol. p. 77.
15 county
Ch. 13. *f PERSONS. 411
county officers in whom they could confide to muiter and
array (or fet in military order) the inhabitants of every dif-
trit ; and the form of the commiffion of array was fettled
in parliament in the 5 Hen. IV., fo as to prevent the infer-
tion therein of any new penal caufes k . But it was alfo
provided l , that no man mould be compelled to go out of the
kingdom at any rate, nor out of his {hire but in cafes of
urgent neceffity ; nor mould provide foldiers unlefs by con-
fent of parliament. About the reign of king Henry VIII.,
or his children, lieutenants began to be introduced 1 ", as
Handing reprefentatives of the crown, to keep the counties
in military order ; for we find them mentioned as known
officers in the ftatute 4 & 5 Ph. & M. c. 3. though they had
not been then long in ufe, for Camden fpeaks of them " in the
time of queen Elizabeth, as extraordinary magiftrates confti-
tuted only in times of difficulty and danger ; but the intro-
duction of thefe commiffions of lieutenancy, which contained
in fubflance the fame powers as the old commiffions of array,
caufed the latter to fall into difufe.
IN this ftate things continued, till the repeal of the ftatutes
of armour in the reign of king James the firft : after which,
when king Charles the firft had, during his northern expedi-
tions, iflued commiffions of lieutenancy, and exerted fome
military powers, which, having been long exercifed, were
thought to belong to the crown, it became a queftion in the
long parliament, how far the power of the militia did inhe-
rently refide in the king; being now unfupported by any [ 412 "]
ftatute, and founded only upon immemorial ufage. This
queftion, long agitated with great heat and refentment on
both fides, became at length the immediate caufe of the fatal
rupture between the king and his parliament : the two houfes
not only denying this prerogative of the crown, the legality
of which perhaps might be fomewhat doubtful ; but alfo feif-
ing into their own hands the entire power of the militia, the
illegality of which ftep could never be any doubt at all.
k Ruflnvorth, part 3. page66z. 667. aj Edw.III. ft.j. c. 8.
See 8 Rym. 374, cc. m 15 Rym. 75.
1 Stat. i Edw. III. it. i. c.J. aud 7. n Brit. 103. Edit 1594.
SOON
4*2 The RIGHTS BOOK!.
SOON after the refloration of king Charles the fecond,
when the military tenures were aboliftied, it was thought
proper to afcertain the power of the militia, to recognize the
fole right of the crown to govern and command them, and to
put the whole into a more regular method of military fubor-
dination ; and the order in which the militia now ftands by
law is principally built upon the ftatutes which were then
enaled. It is true the two laft of them are apparently
repealed ; but many of their provifions are re-ena&ed, with
the addition of fome new regulations, by the prefent militia
laws ; the general fcheme of which is to difcipline a certain-
number of the inhabitants of every county, chofen by lot for
three years (4); and officered by the lord lieutenant, the deputy
lieutenants, and other principal landholders, under a com-
miffion from the crown. They are not compellable to march
out of their counties, unlefs in cafe of invafion or adtual
rebellion within the realm, (or any of its dominions or terri-
tories p ,) nor in any cafe compellable to march out of the
kingdom (5). They are to be exercifed at dated times : and
their difcipline in general is liberal and eafy ; but, when
drawn out into actual fervice, they are fubject to the rigours
of martial law, as neceflary to keep them in order. This is
the conftitutional fecurity which our laws q have provided
13 Car. 11. c. 6. 14 Car. II. c. 3. "> a Geo. III. c. 20. 9 Geo. III.
15 Car. II. c. 4. c. 42. 16 Geo. 111. c. 3. 18 Geo. III.
P Stat. 16 Geo. III. c. 3. c. 14. and 59. 19 Geo. III. c. 72.
(4) And now for five years by the 26 Geo. III. c. 107. f. 24.
which has reduced into one aft the former ftatutea relating to the
militia.
(5) ^7 26 Geo. III. c. 107. f. 95. in all cafes of actual inva-
fion, or upon imminent danger thereof, and in all cafes of rebel-
lion or infurreftion, it (hall be lawful for his majefty, the occafion
being firft communicated to parliament, if fitting, if not fitting,
declared in council, and notified by proclamation, to order the
militia to be embodied, and to direft them to be led by their re-
fpeftive officers into any part of this kingdom ; but neither the
whole, or any part, (hall be ordered to go out of Great Britain.
See the regulations refpefting the militia ftated at large in Jiurn,
tit. Militia.
17 for
Ch. 13. ^PERSONS. 412
for the public peace, and for protecting the realm againft
foreign or domeftic violence.
WHEN the nation was engaged in war, more veteran troops
and more regular difcipline were efteemed to be neceflary,
than could be expected from a mere militia. And therefore
at fuch times more rigorous methods were put in ufe for the
raifing of armies, and the due regulation and difcipline of the [ 413 ~\
foldiery : which are to be looked upon only as temporary
excrefcences bred out of the diftemper of the ftate, and not as
any part of the permanent and perpetual laws of the kingdom.
For martial law, , which is built upon no fettled principles,
but is entirely arbitrary in it's decifions, is, as fir Matthew
Hale obferves q , in truth and reality no law, but fomething
indulged, rather than allowed as a law. The neceflity of order
and difcipline in an army is the only thing which can give it
countenance ; and therefore it ought not to be permitted in
time of peace, when the king's courts are open for all perfons
to receive juftice according to the laws of the land. Where-
fore Thomas earl of Lancafter being condemned at Ponte-
fraft, 15 Edw. II., by martial law, his attainder was re-
verfed i Edw. III., becaufe it was done in time of peace r .
And it is laid down*, that if a lieutenant, or other that hath
commiffion of martial authority, doth in time of peace hang
or otherwife execute any man by colour of martial law, this is
murder: for it is againft magna charta 1 . The petition of right*
moreover enacts, that no foldier mall be quartered on the
fubjedt without his own confent" : and that no commiffion
fhall iffue to proceed within this land according to martial
law. And whereas, after the reftoration, king Charles the
fecond kept up above five thoufand regular troops, by his
own authority, for guards and garrifons ; which king James
the fecond by degrees increafed to no lefs than thirty thou-
fand, all paid from his own civil lift ; it was made one of the
<>. Hift. C. L. c.4. c.i.
* a Brad. Append. 59. u Thus, in Poland, no foldier can be
* 3 Inft. 52. quartered upon the gentry, the only
* caf. 49. freemen in that republic. Mod. Univ.
" 3 Car. I. See alfo Stat. 31 Car. II. Hift. xxxiv. 33.
articles
413 The RIGHTS BOOK I.
articles of the bill of rights', that the railing or keeping a
(landing army within the kingdom in time of peace, unlefs
it be with the confent of parliament, is againft law.
BUT, as the fafhion of keeping {landing armies (which
was firft introduced by Charles VII. in France, A. D.
[ 414 ] 1445 w ) has f l ate 7 ears univerfally prevailed over Europe,
(though fome of it's potentates, being unable themfelves to
maintain them, are obliged to have recourfe to richer powers,
and receive fubfidiary penfions for that purpofe,) it has alfo
for many years *paft been annually judged neceflary by our
legiflature, for the fafety of the kingdom, the defence of the
pofleffions of the crown of Great Britain, and the preferv-
ation of the balance of power in Europe, to maintain even in
time of peace a {landing body of troops, under the command
of the crown ; who are however ipfofafto difbanded at the
expiration of every year, unlefs continued by parliament.
And it was enacted by ftatute 10 W. III. c. i. that not more
than twelve thoufand regular forces fhould be kept on foot
in Ireland, though paid at the charge of that kingdom ;
which permiffion is extended by ftatute 8 Geo. III. c. 13. to
16,235 men m ^ me
To prevent the executive power from being able to op-
prefs, fays baron Montefquieu x , it is requifite that the armies
with which it is intrufted fhould confift of the people, and
have the fame fpirit with the people ; as was the cafe at
Rome till Marius new-modelled the legions by enlifting the
rabble of Italy, and laid the foundation of all the military ty-
ranny that enfued. Nothing then, according to thefe prin-
ciples, ought to be more guarded againft in a free ftate, than
making the military power, when fuch a one is neceflary to
be kept on foot, a body too diftincl: from the people. Like
ours, it fhould wholly be compofed of natural fubjets ; it
ought only to be enlifted for a fhort and limited time ; the
foldiers alfo fhould live intermixed with the people ; no fepa-
* Stat i W. & M. ft. a. c. a. * Sp,L. 11.6.
'* Robertfon, Cha. V. i. 94.
rate
Ch. 13. of PERSONS. 414
rate camp, no barracks, no inland fortrefles mould be al-
lowed (6). And perhaps it might be ftill better, if, by dif-
miffing a ftated number and enlifting others at every renewal
of their term, a circulation could be kept up between the
army and the people, and the citizen and the foldier be more
intimately connected together.
To keep this body of troops in order, an annual act of par-
liament likewife pafles, to punifti mutiny and defertion,
" and for the better payment of the army and their quarters." [ 4*5 1
This regulates the manner in which they are to be difperfed
among the feveral inn-keepers and victuallers throughout the
kingdom; and eftablifties a law martial for their government.
By this, among other things, it is enacted, that if any officer
or foldier {hall excite or join any mutiny, or, knowing of it,
fhall not give notice to the commanding officer ; or {hall
defert or lift in any other regiment, or fleep upon his poft,
or leave it before he is relieved, or hold correfpondence with
a rebel or enemy, or ftrike or ufe violence to his fuperior
officer, or {hall difobey his lawful commands : fuch offender
fhall fuffer fuch punifiiment as a court martial mail inflict,
though it extend to death itfelf.
HOWEVER expedient the moft ftrict regulations may be in
time of actual war, yet in times of profound peace, a little
relaxation of military rigour would not, one mould hope, be
productive of much inconvenience. And, upon this prin-
ciple, though by our {landing laws y (ftill remaining in force,
though not attended to) defertion in time of war is made
y Stat. 1 8 Hen. VI. c. 19. a & 3 Ed. VI. c. 2.
(6) Since this was written, with a genuine love of liberty, by
the author, experience has proved, that the moft formidable enemy
which the people of England have to dread, is their own lawlefs
mobs. Care ought therefore to be taken, that foldiers may never
become familiar with the people in great towns, left they mould
be more inclined to join than to quell a riot. Nam neque quiet
gentium fine armis, neque arma fine Jlipendiis, neque JKpe ndiajine tri-
tutisj habcri queunt. Tac. Hift. iv. c. 74.
felony
415 The R i G H T s Boo K I.
felony without benefit of clergy, and the offence is triable
by a jury and before juftices at the common law : yet, by
our militia-laws before mentioned, a much lighter punifh-
ment is inflicted for defertion in time of peace. So, by the
Roman law alfo, defertion in time of war was punifhed with
death, but more mildly in time of tranquillity 2 . But our
mutiny aft makes no fuch diftinction : for any of the faults
above mentioned are equally at ail times punifhable with
death itfelf, if a court martial {hall think proper. This dif-
cretionary power of the court martial is indeed to be guided
by the directions of the crown ; which, with regard to mili-
tary offences, has almoft an abfolute legiflative power". " His
" majefty," fays the act, " may form articles of war and con-
" ftitute courts martial, with power to try any crime by fuch
" articles, and inflict penalties by fentence or judgment of
" the fame." A vaft and moft important truft ! an un-
limited power to create crimes, and annex to them any
416 ] punifhments, not extending to life or limb! Thefe are in-
deed forbidden to be inflicted, except for crimes declared
to be fo puniftiable by this act j which crimes we have
juft enumerated, and, among which, we may obferve that
any difobedience to lawful commands is one. Perhaps in
fome future revifion of this act, which is in many refpects
haftily penned, it may be thought worthy die wifdom of
parliament to afcertain the limits of military fubjection, and
to enact exprefs articles of war for the government of the
army, as is done for the government of the navy ; efpecially
as, by our prefent conftitution, the nobility and gentry of
the kingdom, who ferve their country as militia officers, are
annually fubjected to the fame arbitrary rule, during their
.time of exercife.
ONE of the greateft advantages of our Englifh law is, that
not only the crimes themfelves which it punifhes, but alfo
the penalties which it inflicts, are afcertained and notorious :
nothing is left to arbitrary difcretion ; the king by his judges
difpenfes what the law has previoufly ordained ; but is not
z Ff. 49. 16. 5. anpther annual aft " for the regula-
* A like power over the nurinei " tion of his majefly'* marine force*
" given to the lords of the Admiralty by " while on fhore."
himfelf
Ch.13- ^PERSONS. 416
himfelf the legiflator. How much therefore is it to be re-
gretted that a fet of men, whofe bravery has fo often *pre-
ferved the liberties of their country, mould be reduced to a
ftate of fervitude in the midft of a nation of freemen ! for fir
Edward Coke will inform us a , that it is one of the genuine
marks of fervitude, to have the law, which is our rule of
action, either concealed or precarious ; " mifera eft fervitus
ff ubi jus eft vagum out incognitutn" Nor is this ftate of fer-
vitude quite confident with the maxims of found policy ob-
ferved by other free nations. For, the greater the general
liberty is which any ftate enjoys, the more cautious has it
ufually been in introducing flavery in any particular order
or profeffion. Thefe men, as baron Montefquieu obferves b ,
feeing the liberty which others poflefs, and which they them-
felves are excluded from, are apt (like eunuchs in the eaftern
feraglios) to live in a ftate of perpetual envy and hatred to-
wards the reft of the community ; and indulge a malignant
pleafure in contributing to deftroy thofe privileges to which
they can never be admitted. Hence have many free ftates,
by departing from this rule, been endangered by the revolt
of their flaves : while in abfolute and defpotic governments, [ 41*7
where no real liberty exifts, and consequently no invidious
comparifons can be formed, fuch incidents are extremely rare.
Two precautions are therefore advifed to be obferved in all
prudent and free governments : I . To prevent the introduc-
tion of flavery at all : or, 2. If it be already introduced, not
to intruft thofe flaves with arms ; who will then find them-
felves an overmatch for the freemen. Much lefs ought the
foldiery to be an exception to the people in general, and the
only ftate of fervitude in the nation.
BUT as foldiers, by this annual at, are thus put in a worfe
condition than any other fubjecls, fo, by the humanity of our
{landing laws, they are in fome cafes put in a much better.
Byftatute 43 Eliz. c. 3. a weekly allowance is to be raifed
in every county for the relief of foldiers that are fick, hurt,
and maimed : not forgetting the royal hofpital at Chelfea, for
fuch as are worn out in their duty. Officers and foldiers,
that have been in the king's fervice, are, by feveral ftatutes
4lnft. 333. b S]j.L. 15. is.
VOL. I. Pp chatted
417 The RIGHTS BOOK I.
ena&ed at the clofe of feveral wars, at liberty to ufe any
trade or occupation they are fit for, in any town in the king-
dom, (except the two univerfities,) notwithstanding any fta-
tute, cuftom, or charter to the contrary (7). And foldiers in
actual military fervice may make nuncupative wills, and dif-
pofe of their goods, wages, and other perfonal chattels,
without thofs forms, folemnities, and expenfes, which the
law requires in other cafes c . Our law does not indeed ex-
tend this privilege fo far as the civil law -, which carried it to
an extreme that borders upon the ridiculous. For if a fol-
dier, in the article of death, wrote any thing in bloody let-
ters on his (hield, or in the duft of the field with the fword, it
was a very good military teftament d . And thus much for the
military ftate, as acknowledged by the laws of England (8).
c Stat. 19 Car. II. 0.3. 5 W. IIT. in pul-vere infcripferint glaSio fuo ipfo
C. 41. 6. temfore quo, in praclio, -vitae fartem
d Si miittit quid in clyfeo literis fan- derdinquunt, bujufmodi -voluntatem Jla-
guint fuo rutilantibus odnota-verint, out tilem e/e oporttt. Cod. 6. 21. 15.
(7) By the 42 Geo. III. c. 69. all officers, foldiers, and mari-
ners, who have been employed in the king's fervice fince 1784,
and have not deferted, and their wives and children, may exercife
any trade in any town in the kingdom, and mail not be removed
till they are actually chargeable. The fame privilege is extended
to all officers and foldiers who have ferved in the militia or the
fencible regiments, and have been honourably difcharged.
But any two juftices of the county or place may examine any
fuch perfon with regard to his legal fettlement, who mall make
oath thereof ; and the juftices mall give fuch perfon an attefted
copy of his affidavit, which mail afterwards be admitted as evi-
dence of fuch fettlement.
( 8 ) It is now fully eftablifhed, that neither the full pay nor half
pay of an officer, or any perfon in a military or naval character,
can in any inftance be affigned before it is due ; as the objeft of
fuch pay is to enable tbofe who receive it to be always ready to
ferve their country with that decency and dignity which their re-
fpeaive ftations and charaders require. ^T. R. 258. H. SI. 628.
This IB a law founded upon found policy and general conveni-
ence, in wifdom and a regard to the great interefts of the commu-
nity, upon the principle, of two evils chufe the leaft.
It may be a hardfhip or an evil to a poor officer, that he cannot
borrow money for himfelf and his family, and give a fecurity upon
15 his
Ch. 13. of PERSONS. 417
THE maritime ftate is nearly related to the former, though
much more agreeable to the principles of our free conftitu-
tion. The royal navy of England hath ever been its greateft [ 418 ]
defence and ornament ; it is it's antient and natural ftrength ;
the floating bulwark of the ifland ; an army, from which,
however ftrong and powerful, no danger can ever be appre-
hended to liberty : and accordingly it has been affiduoufly cul-
tivated, even from the earlieft ages. To fo much perfection
was our naval reputation arrived in the twelfth century, that
the code of maritime laws, which are called the laws of
Oleron, and are received by all nations in Europe as the
ground and fubftru&ion of all their marine conftitutions, was
confefledly compiled by our king Richard the firft, at the ifle
of Oleron on the coaft of France, then part of the pofleflions
of the crown of England e . And yet, fo vaftly inferior were
our anceftors in this point to the prefent age, that even in the
maritime reign of queen Elizabeth, fir Edward Coke f thinks
it matter of boaft, that the royal navy of England then con-
fifted of three-and-thirty mips. The prefent condition of our
marine is in great meafure owing to the falutary provisions of
the ftatutes called the navigation acts ; whereby the conftant
increafe of Englifli (hipping and feamen was not only en-
couraged, but rendered unavoidably neceffary. By the ftatute
5 Ric. II. c. 3. in order to augment the navy of England,
then greatly diminifhed, it was ordained, that none of the
king's liege people mould fhip any merchandize out of or into
the realm but only in {hips of the king's ligeance, on pain of
forfeiture. In the next year, by ftatute 6 Ric. II. c. 8. this
wife provifion was enervated, by only obliging the merchants
to give Englifti fhips (if able and fufficient) the preference.
But the moil beneficial ftatute for the trade and commerce of
thefe kingdoms is that navigation aft, the rudiments of which
were firft framed in 1650 g , with a narrow partial view : being
intended to mortify our own fugar iflands, which were difaf-
e 4 Inft. 144. Coutumes de la mer. a. f 4 Inft- 5- 8 Scobell. 13*.
his future pay ; yet it would be a much greater evil to the public
fervice, if officers, when called out, were deftitute of the means
of ferving their country from the want of proper habiliments or
accoutrements.
P p 2 fefted
4i 8 The RIGHTS BOOK L
fe&ed to the parliament, and ftill held out for Charles II., by
Hopping the gainful trade which they then carried on with the
Dutch h ; and at the fame time to clip the wings of thofe
our opulent and afpiring neighbours. This prohibited all
(hips of foreign nations from trading with any Englifh plant-
C 4 T 9 3 ations without licence from the council of ftate. In 1651 '
the prohibition was extended alfo to the mother country :
and no goods were fuffered to be imported into England, or
any of its dependencies, in any other than Englifh bottoms ;
or in the fhips of that European nation of which the mer-
chandize imported was the genuine growth or manufac-
ture (9). At the reftoration the former provifions were
continued, by ftatute 12 Car. II. c. 18. with this very ma-
terial improvement, that the mafter and three-fourths of the
mariners fhall alfo be Englifh fubjects(io).
MANY laws have been made for the fupply of the royal
navy with feamen ; for their regulation when on board j
and to confer privileges and rewards on them during and
after their fervice.
h Mod. Un. Hift. xli. 489. Scobell. 176.
(9) By the 26 Geo. III. c. 60. no privileges are to be allowed
to any fhips which are not Britifh-built, or built in fome part of his
majefty's dominions : and every fuch fhip muft be regiftered in the
port to which fhe belongs, according to the directions of that fta-
tute, the 27 Geo. III. c. 19. and the 34 Geo. III. c. 68.
By 45 Geo. III. c. 32. regulations are made for regiftering fo-
reign fhips furrendered to his majefty.
( 10) The 34 Geo. III. c. 68. enads that, after the expiration
of fix months from the conclufion of the exifting war, no goods or
merchandize fhall be imported into, or exported from, the kingdom
of Great Britain, or the iflands of Guernfey, Jerfey, Alder ney,
Sark, or Man, on board any fhip which is not navigated by a
mafter and three-fourths at leaft of the mariners Britifh fubjefts.
And fhips or veflels failing from one place to another within the
kingdom, or in the aforefaid iflands, muft be manned wholly with
Britifh fubjeds.
The wilful violation of thefe regulations fubjeds the owners to
a forfeiture of the fhip and all the goods on board.
By the 42 Geo. III. c. 61. Ireland and Irifh failors are included
in thefe regulations, which they were not fubjeft to before.
I. FIKST,
Ch.i3. ^PERSONS, 419
i. FIRST, for their fupply. The power of imprefling fea-
faring men for the fea fervice by the king's commiflion has
been a matter of fome difpute, and fubmitted to with great
reluftance ; though it hath very clearly and learnedly been
(hewn by fir Michael Fofter J , that the praftice of imprefling
and granting powers to the admiralty for that purpofe is of
very antient date, and hath been uniformly continued by a
regular feries of precedents to the prefent time : whence he
concludes it to be part of the common law k . The difficulty
arifes from hence, that no ftatute has exprefsly declared this
power to be in the crown, though many of them very ftrongly
imply it. The ftatute 2 Ric. II. c. 4. fpeaks of mariners be-
ing arrefted and retained for the king's fervice, as of a thing
well known and pralifed without difpute : and provides a
remedy againft their running away. By a later ftatute ', if
any waterman, who ufes the river Thames, (hall hide himfelf
during the execution of any commiflion of preffing for the
king's fervice, he is liable to heavy penalties. By another,
no fiflierman (hall be taken by the queen's commiflion to ferve
as a mariner; but the commiflion {hall be firft brought to two
juftices of the peace, inhabiting near the fea coaft where the
mariners are to be taken, to the intent that the juftices may
chufe out and return fuch a number of able-bodied men, as
in the commiffion are contained, to ferve her majefty. And, [ 420 ]
by others ", efpecial protections are allowed to feamen in
particular circumftances, to prevent them from being im-
prefled. And ferrymen are alfo faid to be privileged from
being imprefled, at common law . All which do moft evi-
dently imply a power of imprefling to refide fomewhere; and,
if any where, it muft, from the fpirit of our conftitution, as
well as from the frequent mention of the king's commiflion,
refide in the crown alone ( 1 1 ).
j Rep. 154. Ann. c.6. 4&5Ann. c. 19. i3Geo. II.
k See alfo Comb. 245. Barr-334. c. 17. a Geo. III. c. 15. nGeo. IIF.
;i,4.Stat. 4& 3 Ph. andM. c. 16. 0.38. 19 Geo.III. c. 75, &c.
111 Stat. 5 Eliz. c. 5. Sav. 14,
"SeeSut. 7 & 8 W. III.
(n) The legality of preffing is fo fully eftabliflied, that it will
not now admit of a doubt in any court of juftice. In the cafe of
P p 3 the
3
420
The RIGHTS BOOK I.
Bur, befides this method of imprefling, (which is only
defenfible from public neceffity, to which all private con-
fiderations muft give way,) there are other ways that tend
to the increafe of feamen, and manning the royal navy.
Parifhes may bind out poor boys apprentices to mafters of
merchantmen, who (hall be protected from imprefling for
the firft three years ; and if they are imprefTed afterwards,
the mafters fhall be allowed their wages p : great advan-
tages in point of wages are given to volunteer feamen, in
order to induce them to enter into his majefty's fervice i;
and every foreign feaman who during a war fhall ferve two
years in any man of war, merchantman, or privateer, is
naturalized ipfo faElo r . About the middle of king William's
reign a fcheme was fet on foot 9 for a regifter of feamen to
the number of thirty thoufand, for a conftant and regular
fupply of the king's fleet ; with great privileges to the re-
giftered men, and, on the other hand, heavy penalties in
cafe of their non-appearance when called for: but this re-
* Stat. a Ann. c. 6. r Stat. 13 Geo. II. c. 3.
o Stat. 31 Geo. II. c. 10. 8 Stat. 7 & 8 W. III. c. ax.
the king v. Jubbs, lord Mansfield fays, " the power of preffing
" is founded upon immemorial ufage, allowed for ages. If it be
" fo founded and allowed for ages, it can have no ground to it and
" upon, nor can it be vindicated or juftiiled by any reafon, but
" the fafety of the ftate. And the practice is deduced from that
' trite maxim of the conftitutional law of England, that private
" mifchief had better be fubmitted to, than public detriment and
*' inconvenience mould enfue.' And though it be a legal power,
'* it may, like many others, be abufed in the exercife of it."
Cowp. $17. In that cafe the defendant was brought up by habeas
corpus, upon the ground that he was entitled to an exemption ; but
the court held that the exemption was not made out, and he was
remanded to the fhip from which he had been brought.
Lord Kenyon has alfo declared in a fimilar cafe, that the right
of preffing is founded on the common law, and extends to all perfons
exercifing employments in the feafaring line. Any exemptions,
therefore, which fuch perfons may claim, muft depend upon the
pofitive provifions of ftatutes. 5 T. R. 276.
A feaman ferving in the merchant fervice is not exempt from
being imprcffcd becaufe he is a freeholder. 5 Eqfl, 477.
giftry,
Ch. 13. </ PERSONS. 420
giftry, being judged to be ineffectual as well as opprcflive,
was abolifhed by itatute 9 Ann. c. zi. r , r ,.
2. THE method of ordering feamen in the royal fleet, and
keeping up a regular difcipline there, is dire&ed by certain
exprefs rules, articles, and orders, firft enacted by the autho-
rity of parliament foon after the reftoration * -, but fince
new-modelled and altered, after the peace of Aix la Chapelle u , [ 421 1
to remedy fome defects which were of fatal confequence in
conducting the preceding war. In thefe articles of the navy
almoft every pofiible offence is fet down, and the punifh-
ment thereof annexed ; in which refped the feamen have
much the advantage over their brethren in the land-fervice j
whofe articles of war are not enacted by parliament, but
framed from time to time at the pleafure of the crown.
Yet from whence this diftin&ion arofe, and why the
executive power, which is limited fo properly with regard
to the navy, mould be fo extenfive with regard to the
army, it is hard to affign a reafon : unlefs it proceeded from
the perpetual eftablimment of the navy, which rendered a
permanent law for their regulation expedient ; and the
temporary duration of the army, which fubfifted only from
year to year, and might therefore with lefs danger be
fubjefted to difcretionary government. But whatever was
apprehended at the firft formation of the mutiny at, the
regular renewal of our (landing force at the entrance of every
year has made this diftin&ion idle. For, if from experience
paft we may judge of future events, the army is now laftingly
ingrafted into the Britifh conftitution ; with this fingularly
fortunate circumftance, that any branch of the legiflature
may annually put an end to its legal exiftence, by refufiug to
concur in its continuance.
3. WITH regard to the privileges conferred on failors,
they are pretty much the fame with thofe conferred on fol-
diers ; with regard to relief when maimed, or wounded, or
fuperannuated, either by county rates, or the royal hofpital
at Greenwich ; with regard alfo to the exercife of trades,
1 Stat. 13 Car. II. ft. i.e. 9.
u Stat. az Geo. II. c. 13. amended by 19 Geo. HI. c. 17.
P p 4 and
42 r The RIGHTS BOOK I.
and the power of making noncupative teftaments : and far-
ther", no feamen onboard his majefty's (hips can be arrefled
for any debt, urilefs the fame be fworn to amount to at leaft
twenty pounds ; though, by the annual mutiny adts, a foldier
may be arrefted for a debt which extends to half that value,
but not to a lefs amount (12).
w Stat.3iGeo. 11. c. 10.
(12) But, by the late mutiny afts, a foldier, like a feaman, can-
not be arrefted or taken in execution for any debt lefs than 2O/.
The ftatutes except any criminal matter, and thereupon it has been
decided, that a foldier may be committed for refufing to indemnify
the parifli againit a baftard child ; or for difobeying an order of
juftices to pay a weekly allowance for it. 5 T. R. 156. 2 T. R.
270.
The 44 Geo. III. c. 13. ena&s, that if any petty officer or
feaman, belonging to his majefty's navy, mall be arrefted or appre-
hended for any debt or criminal charge, after he mail be entitled
to his difcharge, he mall be re-conveyed by the fheriff, gaoler, or
other officer, to fome officer of his majefty's fleet empowered to
receive feamen. And if he wilfully or negligently permits him to
efcape, he mail forfeit one hundred pounds.
Here it may not be improper to add, that fince the time of
queen Anne, a variety of ftatutes have been pafled to encourage
attempts to difcover the longitude at fea ; and by the 14 Geo. III.
c. 66. which has repealed the former ftatutes, it is enaded, that
the author of any ufeful and practicable plan to difcover the lon-
gitude at fea, either by time-keepers or aftronomical calculations,
mail be entitled to a reward of jooo/. if the longitude can be
determined at fea within a degree of a great circle, or fixty geo-
graphical miles ; to 7,5OO/. if within * of a degree; and to io,ooo/.
if within a degree. And if any ufeful difcovery (hall be made
refpe&ing the longitude, though not entitled to thofe great re-
wards, or if any beneficial improvement mall be introduced into
navigation, the commiffioners of the longitude may award fuch
lefs fum as they think the ingenuity or induftry of the author
deferves.
And by 16 Geo. III. c. 6. if any Ihip difcovers a paffage
between the Atlantic and Pacific oceans, beyond the 52d degree
north latitude, the owner or commander, if a king's (hip, mail
receive 2o,oooA ; and ^ooo/. (hall be given in like manner to the
firft fhip that (hall approach within one degree of the north pole.
Ch. 14. of PERSONS. 422
; Jyjteo-p *
'o) bTRg-it ibtvr
CHAPTER THE FOURTEENTH.
OF MASTER AND SERVANT.
TTAVING thus commented on the rights and duties of
perfons as {landing in the public relations of magiftrates
and people, the method I have marked out now leads me
to confider their rights and duties in private oeconomicaJ
relations.
THE three great relations in private life are, i. That of
majler andfervant; which is founded in convenience, whereby
a man is directed to call in the affiftance of others, where
his own fkill and labour will not be fufficient to anfwer the
cares incumbent upon him. 2. That of hujband and wife ;
which is founded in nature, but modified by civil fociety :
the one directing man to continue and multiply his fpecies,
the other prefcribing the manner in which that natural im-
pulfe muft be confined and regulated. 3. That of parent and
child ; which is confequential to that of marriage, being its
principal end and defign : and it is by virtue of this relation
that infants are protected, maintained, and educated. But,
fmce the parents, on whom this care is primarily incumbent,
may be fnatched away by death before they have completed
their duty, the law has therefore provided a fourth relation.
4. That of guardian and ward ; which is a kind of artificial
parentage, in order to fupply the deficiency, whenever it
happens, of the natural. Of all thefe relations in their
order.
IN
423 The RIGHTS BOOK I.
IN difcuffing the relation of mafler and/ervant, I {hall firft
confider the feveral forts of fervants, and how this relation
is created and deftroyed : fecondly, the effet of this relation
with regard to the parties themfelves : and, laftly, its effects
with regard to other perfons.
I. As to the feveral forts of fervants : I have formerly
obferved a that pure and proper flavery does not, nay cannot,
fubfift in England : fuch, I mean, whereby an abfolute and
unlimited power is given to the mafter over the life and for-
tune of the flave. And indeed it is repugnant to reafon, and
the principles of natural law, that fuch a ftate fliould fubfift
any where. The three origins of the right of flavery, affigned
by Juftinian b , are all of them built upon falfe founda-
tions c . As, firft, flavery is held to arife " jure gentium"
from a ftate of captivity in war j whence flaves are called
mancipia, quafi manucapti. The conqueror, fay the civilians,
had a right to the life of his captive, and, having fpared
that, has aright to deal with him as he pleafes. But it is an
untrue pofition, when taken generally, that by the law of na-
ture or nations a man may kill his enemy ; he has only a right
to kill him in particular cafes ; in cafes of abfolute neceflity,
for felf-defence j and it is plain this abfolute neceffity did not
fubfift, fince the victor did not actually kill him, but made
him prifoner. War is itfelf juftifiable only on principles of
felf-prefervation j and therefore it gives no other right over
prifoners, but merely to difable them from doing harm to us,
by confining their perfons: much lefs can it give a right to kill,
torture, abufe, plunder, or even to enflave an enemy, when
the war is over. Since, therefore, the right of making flaves
by captivity depends on a fuppofed right of flaughter, that
foundation failing, the confequence drawn from it muft fail
likewife. But, fecondly, it is faid that flavery may begin
"jure civili;" when one man fells himfelf to another. This, if
only meant of contracts to ferve or work for another, is very
Pace 147. etc ancilln ntflri,. Jnjl. I. 3, 4.
b Scrvi autfunt out nafcuntur : funt c Montefq. Sp. L. xv. a.
jure gentium, out jure civil! ; najtuntur
juft:
Ch. 14. of PERSONS. 424
juft : but when applied to ftridl flavery, in the fenfe of the
laws of old Rome or modern Barbary, is alfo impoffible.
Every fale implies a price, a quid pro quo t an equivalent given
to the feller in lieu of what he transfers to the buyer : but
what equivalent can be given for life and liberty, both of
which (in abfolute flavery) are held to be in the matter's dif-
pofal ? His property alfo, the very price he feems to receive,
devolves ipfo faElo to his mafter the inftant he becomes his
Have. In this cafe, therefore, the buyer gives nothing, and
the feller receives nothing : of what validity then can a fale
be, which deftroys the very principles upon which all fales
are founded ? Laftly, we are told, that befides thefe two ways
by which flaves " jiunt" or are acquired, they may alfo be
hereditary : " fervi nafcuntur /' the children of acquired
flaves zrejure naturae^ by a negative kind of birthright, flaves
alfo. But this, being built on the two former rights, muft
fall together with them. If neither captivity, nor the fale of
one's felf, can by the law of nature and reafon reduce the
parent to flavery, much lefs can they reduce the offspring.
UPON thefe principles the law of England abhors, and
will not endure the exiftence of, flavery within this nation :
fo that when an attempt was made to introduce it by ftatute
i Edw. VI. c. 3., which ordained that all idle vagabonds
{hould be made flaves, and fed upon bread and water, or fmall
drink, and refufe meat ; (hould wear a ring of iron round
their necks, arms, or legs ; and {hould be compelled by beat-
ing, chaining, or otherwife, to perform the work afligned
them, were it never fo vile ; the fpirit of the nation could
not brook this condition, even in the moft abandoned rogues ;
and therefore this ftatute was repealed in two years after-
wards d . And now it is laid down % that a Have or negro,
the inftant he lands in England, becomes a freeman -, that is,
the law will protect him in the enjoyment of his perfon and
his property. Yet, with regard to any right which the maf-
ter may have lawfully acquired to the perpetual fervice of John
on Thomas, this will remain exactly in the fame ftate as be-
* Stat. 3 & 4 Edw. VI. c. 16. e Salk. 666.
fore :
425
The RIGHTS BOOK I.
i. THE firft fort of fervants, therefore, acknowledged by
the laws of England, are menial fervants ,- fo called from being
intra mcenia, or domeftics. The contract between them
and their mafters arifes upon the hiring. If the hiring be
general, without any particular time limited, the law conftrues
it to be a hiring for a year f ; upon a principle of natural equity
that the fervant (hall ferve, and the mafter maintain him,
throughout all the revolutions of the refpeclive feafons ; as
well when there is work to be done, as when there is not g :
but the contract may be made for any larger or fmaller term.
All fingle men between twelve years old and fixty, and married
ones under thirty years of age, and all fingle women between
twelve and forty, not having any vifible livelihood, are com-
pellable by two juftices to go out to fervice in hufbandry or
certain fpecific trades, for the promotion of honeft induftry :
and no mafter can put away his fervant, or fervant leave his
mafter, after being fo retained, either before or at the end
426 ] f his term, without a quarter's warning ; unlefs upon rea-
f o.Litt.4Z. B F.N.B. 168.
learned difcuffion in the court of king's bench, the court were
unanimoufly of opinion, that the return was infufficient, and that
Somerfett ought to be difcharged. See Mr. Margrave's learned
argument for the negro in 1 1 St. Tr. 340. ; and the cafe reported
in Loft's Reports, i. In confequence of this decifion, ,if a fhip
loaden with flaves was obliged to put into an Englifh harbour, all
the flaves on board might and ought to be fet at liberty. Though
there are acts of parliament which recognize and regulate the
flavery of negroes, yet it exifts not in the contemplation of the
common law ; and the reafon that they are not declared free before
they reach an Englifh harbour, is only becaufe their complaints
cannot fooner be heard and redrefled by the procefs cf an Englifh
court of juftice.
Liberty by the Englifh law depends not upon the complexion ;
and what was faid even in the time of queen Elizabeth is now
fubftantially true, that the air of England is too pure for a flave to
breathe in. 2 Rujbw. 468.
fonable
Ch. 14. of PERSONS. 426
fonable caufe to be allowed by a juftice of the peace* 1 (3):
but they may part by confent, or make a fpecial bargain.
2. ANOTHER fpecies of fervants are called apprentices, (from
apprendre, to learn,) and are ufually bound for a term of years,
by deed indented, or indentures, to ferve their matters, and
be maintained and inftru&ed by them. This is ufually done
to perfons of trade, in order to learn their art and myftery ;
and fometimes very large fums are given with them, as a pre-
mium for fuch their inftruftion : but it may be done to huf-
bandmen, nay to gentlemen, and others. And ' children of
poor perfons may be apprenticed out by the overfeers, with
confent of two juftices, till twenty-one years of age, to fuch
perfons as are thought fitting ; who are alfo compellable to
take them ; and it is held, that gentlemen of fortune, and
clergymen, are equally liable with others to fuch compul-
fion k (4) ; for which purpofes our ftatutes have made the in-
h Stat. 5 Eli/, c. 4. c. 30. z & 3 Ann. c. 6. 4 Ann. c. 19.
* Stat.5E!iz.c4.43Eliz.c.a.iJac.L i7Geo.tI.c.5. i8Geo.UI.c.47.
c. 25. 7 Jac. I. 0.3. 8&9W. & M. k Salk. 57. 491.
( 3 ) But this relates only to fervants employed in hufbandry. It
had been the pra&ice for magiftrates to exercife a jurifdi&ion over
domeftic fervants, and it would be very ufeful to the public that
they fhould poffefs fuch a jurifdi&ion ; but it has lately been de-
cided that their authority under the 5 Eliz. c. 4. is confined to
fervants employed in hufbandry. 6 T. R. 583. But it has been
held that a matter may turn away a fervant for incontinence or
moral turpitude, for fuch mifconduft produces a diflblution of the
contra A. Cold. 14.
The ftatute 20 Geo. II. c. 19. gives the magiftrates jurifdic-
tion to determine differences between matters and fervants hired in
hufbandry, where the fum in queftion does not exceed ten pounds,
and with refpeft to artificers, handicraftsmen, miners, &c. or other
labourers hired for any certain time, where the fum does not ex-
ceed five pounds. The word labourers in this ftatute extends
to labourers of all defcriptions. 8 Eajl, 113.
(4) The parifh officers, with the afTent of two juftices, may
bind a parifh apprentice to a perfon who refides out of their pa-
rifh,
426 The RIGHTS BOOK I.
dentures obligatory, even though fuch parifti apprentice be a
minor l . Apprentices to trades may be difcharged on rea-.
fonable caufe, either at the requeft of themfelves or mafters,
at the quarter feffions, or by one juftice, with appeal to the
feffions 1 " ; who may, by the equity of the ftatute, if they
think it reafonable, diret reftitution of a rateable mare of the
money given with the apprentice": and parifh apprentices
may be difcharged in the fame manner by two juftices (5).
1 Strt. 5 Eliz. c. 4. 43 Eli*' c. a. n Salk. 67.
Cro. Car. 179. Stat. ao Geo. II. c. 19.
m Stat. 5 Eliz. c. 4.
rifh, if he occupies an eftate in the parifh. 3 T. R. 107. Or to
partners, who refide out of the parifh, though fome of the partners
are refident upon the partnerfhip property within the parifh.
7 T. R. 33-
(5) By 32 Geo. III. c. 57. where a parifh apprentice is dif-
charged from a mafter on account of the mifconduct of the mafter,
the juftices may order the mafter to deliver up his clothes, and
to pay a fum not exceeding io/. to place him with another rnafter.
See the other provifions of this ftatute, and the fubjeft ftated at
large, in Sum, tit. Apprentice.
And by the 33 Geo. III. c. 55. wherever a mafter or miftrefs
has not received more than ten pounds with an apprentice, two or
more juftices at a fpecial or petty feffions may, upon complaint and
proof of ill ufage of the apprentice, fine the mafter or miftrefs
any fum not exceeding forty millings ; and the fine may, at the
difcretion of the juftices, be applied to the ufe of the apprentice,
as a compenfation for the injury which he may have fuftained.
By the 42 Geo. III. c. 46. the overfeers of the poor fhall keep
a regifter, containing a full defcription of every child, bound out
by them as a parifh apprentice, according to a form prefcribed by
the ftatute, which regifter fhall be figned by the magiftrates who
aflent to the indentures. Upon omiffion, the overfeers fhall for-
feit five pounds. The magiftrates of the county may infpeft the
regifter gratis ; or other perfons, paying 6d. If the indentures
are proved to be loft or deftroyed, then the regifter (hall be evi-
dence of the binding.
The 42 Geo. III. c. 73. contains many falutary and excellent
regulations for the prefervation of the health and morals of appren-
tices and others employed in cotton and other factories.
But
Ch. 14. of PERSONS. 426
But if an apprentice, with whom lefs than ten pounds hath
been given, runs away from his mafter, he is compellable to
ferve out his time of abfence, or make fatisfaction for the
fame, at any time within feven years after the expiration of
his original contract p .
3. A THIRD fpecies of fervants are labourers, who are only
hired by the day or the week, and do not live intra moenia, as
part of the family ; concerning whom the ftatutes before [ 427 ]
cited q have made many very good regulations : i. Directing
that all perfons who have no vifible effects may be compelled
to work ; 2. Defining how long they muft continue at work
in fummer and in winter: 3. Puniflhing fuch as leave or
defert their work : 4. Empowering the juftices at feffions,
or the fheriff of the county, to fettle their wages : and, 5. In-
flicting penalties on fuch as either give, or exact, more
wages than are fo fettled.
4. THERE is yet a fourth fpecies of fervants, if they may
be fo called, being rather in a fuperior, a minifterial, capa-
city ; fuch *s fa-wards, factors, and bailiffs: whom however
the law confiders as fervants, pro tempore, with regard to fuch
of their acts as affect their matter's or employer's property.
Which leads me to confider,
.> !cui3c,ir/: iu-. t
II. THE manner in which this relation, of fervice,' affects
either the mafter or fervant. And, firft, by hiring and fer-
vice for a year, or apprenticefhip under indentures, a perfon
gains a fettlement in that pariih wherein he laft ferved forty
days r . In the next place, perfons ferving feven years as ap-
prentices to any trade have an exclufive right to exercife that
trade in any part of England . This law, with regard to the
exclufive part of it, has by turns been looked upon as a hard
law, or as a beneficial one, according to the prevailing humour
of the times : which has occafioned a great variety of refolu-
P Stat. 6 Geo. III. c. 26. r See page 364.
* Stat. 5 Eliz.c. 4. 6 Geo. IIT. s Srat. 5 Elir. c. 4. 31.
c. 26.
VOL. I. Q q tions
427 2^* RIGHTS BOOK I.
tion* in the courts of law concerning it ; and attempts have
been frequently made for it's repeal, though hitherto with-
out fuccefs. At common law every man might ufe what
trade he pleafed ; but this ftatute reftrains that liberty to
fuch as have ferved as apprentices : the adverfaries to which
provifion fay, that all reftrifHons (which tend to introduce
monopolies) are pernicious to trade ; the advocates for
it allege, that unfkilfulnefs in trades is equally detrimental
to the public, as monopolies. This reafon indeed only
[ 428 ] extends to fuch trades, in the exercife whereof (kill is
required : but another of their arguments goes much far-
ther ; viz. that apprenticefhips are ufeful to the common-
wealth, by employing of youth, and learning them to be
early induftrious (6) ; but that no one would be induced to
undergo a feven years' fervitude, if others, though equally
(kilful, were allowed the fame advantages without having
undergone the fame difcipline : and in this there feems to
be much reafon. However, the refolutions of the courts
have in general rather confined than extended the re-
ftri&ion. No trades are held to be within the ftatute, but
fuch as were in being at the making of it l : for trading in a
country village, apprenticefhips are not requifite u ; and
following the trade feven years, without any effe&ual pro-
fecution, (either as a mafter or a fervant,) is fufficient with-
out an actual apprenticefhip w (7).
1 Lord Raym. 514. tarn v. Holton. Tr. 33 Geo. III. (by all
i Ventr. 5 1 . a Keb. 5 8 3 . the judges.)
w Lord Raym. 1179. Wallen qui
(6) Lord Coke fays, this ftatute was not enafted only that
workmen (hould be {kilful, but alfo that youth fhould not be
nourifhed in idlenefs, but brought up and educated in lawful
fciences and trades. 1 1 Co. 54.
( 7 ) The penalty is 40*. a month, one half to the king, the
other half to the profecutor. The words of the ftatute are having
ferved at an apprentice, and there can be no doubt but the legifla-
ture intended that the tradefmen fhould have ferved an aftual ap-
prenticcftup ;
Ch. 14. of PERSONS. 428
A MASTER may by law correct his apprentice for negli-
gence or other mifbehaviour, fo it be done with moderation * :
though if the mafter or matter's wife beats any other fervant
of full age, it is good caufe of departure (8). But if any
fervant, workman, or labourer aflaults his mafter or dame,
he mail fuffer one year's imprifonment, and other open cor-
poral punifhment, not extending to life or limb *.
BY fervice all fervants and labourers, except apprentices,
become entitled to wages : according to their agreement, if
menial fervants ; or according to the appointment of the
fheriff or feffions, if labourers or fervants in hufbandry ; for
the ftatutes for regulation of wages extend to fuch fervants
only * ; it being impoffible for any rhagiftrate to be a judge
of the employment of menial fervants, or of courfe to alfefs
their wages.
III. LET us, laftly, fee how ftrangers may be affected by
this relation of mafter and fervant : or how a mafter may
behave towards others on behalf of his fervant ; and what a [ 429 ]
fervant may do on behalf of his mafter.
AND, firft, the mafter may maintain, that is, abet and
aflift his fervant in any action at law againft a ftranger:
whereas, in general, it is an offence againft public juftice to
encourage fuits and animofities, by helping to bear the ex-
penfe of them, and is called in law maintenance 11 . A
* x Hawk. P. C. 130. J,amb.Eiren. Stat. 5 Eliz. 0.4.
l^^. Cro. Car. 179. a Show. 289. a Jones, 47.
' F.N.B. 168. Bro. Mr. t. La- " a RolL Abr.nj.
bourtrt, 51. Trtftafa 349.
prenticeftiip ; but from the words, as an apprentice, this being a
penal ftatute, the judges have determined that he ferves as an
apprentice, who for feven years has been working as a mafter,
2 Wtlf. 1 68. ; or as the matter's wife, i Barnard, 367.
(8) Or rather of complaint to a magiftrate to be difcharged.
Q q 2 mafter
429 The RIGHTS BOOK I.
mafter alfo may bring an action againft any man for beat-
ing or maiming his fervant : but in fuch cafe he muft af-
Cgn, as a fpecial reafon for fo doing, his own damage by
the lofs of his fervice (9) ; and this iofs muft be proved
upon the trial c . A mafter like wife may juftify an aflault
in defence of his fervant, and a fervant in defence of his
mafter d : the mafter, becaufe he has an intereft in his fer-
vant, not to be deprived of his fervice ; the fervant, be-
caufe it is part of his duty, for which he receives his
wages, to ftand by and defend his mafter e . Alfo, if any
perfon do hire or retain my fervant, being in my fervice,
for which the fervant departeth from me, and goeth to ferve
the other, I may have an action of damages againft both
the new mafter and the fervant, or either of them ; but if
the new mafter did not know that he is my fervant, no
action lies ; unlefs he afterwards refufe to reftore him upon
information and demand f . The reafon and foundation upon
which all this doctrine is built, feem to be the property
that every man has in the fervice of his domeftics ; acquired
by the contract of hiring, and purchafed by giving them
wages.
As for thofe things which a fervant may do on behalf of
his mafter, they feem all to proceed upon this principle,
that the mafter is anfwerable for the act of his fervant, if
done by his command, either exprefsly given, or implied :
nam, qui fact f per alium,facit per fe g . Therefore, if the fer-
c 9 Rep. 1 13. and a hufband or father for the chaftity
11 a Roll. Abr. 546. of his wife or daughter.
e In like manner, by the laws of king f F. N. B. 167, 168.
Alfred, 0.38. a fervant was allowed to 4 Inft. 109.
fight for his mafter, a parent for his child,
(9) This is an aftion upon the cafe, generally called a per quod
fervitium ami/it. This aftion by a mafter for beating his fervant
has been contrived, by a fpecies of fiction, to be extended to a
parent to enable him to recover a pecuniary cornpenfation, under
fome circumftances, for the fedu&ion of his daughter. See 3 vol.
p. 143. note.
vant
Ch. 14. (/PERSONS. 429
vant commit a trefpafs by the command or encouragement
of his mailer, the mafter (hall be guilty of it, though the [ 430 ]
fervant is not thereby excufed, for he is only to obey his
mafter in matters that are honeft and lawful. If an inn-
keeper's fervants rob his guefts, the mafter is bound to refti-
tution h : for as there is a confidence repofed in him, that
he will take care to provide honeft fervants, his negligence
is a kind of implied confent to the robbery ( i o) ; nam, qui
non prohibet, cum prohibere po/Jit, jubet. So like wife, if the
drawer at a tavern fells a man bad wine, whereby his health
is injured, he may bring an action againft the mafter' :
for although the mafter did not exprefsly order the fervant
to fell it to that perfon in particular, yet his permitting
him to draw and fell it at all is impliedly a general com-
mand.
IN the fame manner, whatever a fervant is permitted to
do in the ufual courfe of his bufinefs, is equivalent to
a general command. If I pay money to a banker's fervant,
the banker is anfwerable for it : if I pay it to a clergyman's
or a phyfician's fervant, whofe ufual bufinefs it is not to re-
ceive money for his mafter, and he embezzles it, I muft
pay it over again. If a fteward lets a leafe of a farm, with-
out the owner's knowledge, the owner muft ftand to the bar-
gain ; for this is the fteward's bufinefs. A wife, a friend,
a relation, that ufe to tranfadt bufinefs for a man, are quoad
hoc his fervants ; and the principal muft anfwer for their
11 Noy's max. c. 43. ' I Roll. Abr. 95.
( 10) But it has been long eftablifhed law, that the innkeeper
is bound to reftitution if the gueft is robbed in his houfe by any
perfon whatever ; unlefs it fhould appear that he was robbed by
his own fervant, or by a companion whom he brought with him.
8 Co. 33. And where an innkeeper had refufed to take the charge
of goods becaufe his houfe. was full ; yet he was held liable for
the lofs, the owner having ftopt as a gueft, and the goods being
ftolen during his ftay. 5 T. R. 273.
Q q 3 conduct :
430 The RIGHTS BOOK L
conduct : for the law implies, that they act under a general
command -, and without fuch a doctrine as this no mutual
intercourfe between man and man could fubfift with any to-
lerable convenience. If I ufually deal with' a tradefman by
myfelf, or conftantly pay him ready money, I am not an-
fwerable for what my fervant takes up upon truft j for here
is no implied order to the tradefman to truft my fervant t
but if I ufually fend him upon truft, or fometimes on truft
and fometimes with ready money, I am anfwerable for all
he takes up : for the tradefman cannot poffibly diftinguifh.
when he comes by my order, and when upon his own au-
thority k (u).
C 43 l ] If a fervant, laitly, by his negligence does any damage to
a ftranger, the mafter (hall anfwer for his neglect ; if a
fmith's fervant lames a horfe while he is (hoeing him, an
action lies againft the mafter, and not againft the fervant^
But in thefe cafes the damage muft be done while he is
actually employed in the mailer's fervice ; otherwife the
fervant fhall anfwer for his own mifbehaviour. Upon this
principle, by the common law ! , if a fervant kept his maf-
ter's fire negligently, fo that his neighbour's houfe was
burned down thereby, an action lay againft the mafter ;
becaufe this negligence happened in his fervice ; other-
wife, if the fervant, going along the ftreet with a torch, by
negligence fets fire to a houfe ; for there he is not in his
mailer's immediate fervice, and muft himfelf anfwer the
damage perfonally. But now the common law is, in the
former cafe, altered by ftatute 6 Anne, c. 3. which ordains
that no action fhall be maintained againft any in whofe
k Dr. & Stud. d. 2. c. 43. Noy's max. c. 44. ' Noy's max. c. 44.
( 1 1 ) And if I once pay for what my fervant has bought upon
trult, without c-xprcfling any difapprobation of it, it is equivalent
to a diredon to truft him in future ; and I (hall be anfwerable for
all he takes up upon credit, till an exprefs order is given to the
tradcfnun not to give him further credit.
15 houfe
Ch. 14. f PERSONS.
431
houfe or chamber any fire fhall accidently begin ; for
their own lofs is fufficient punifliment for their own or
their fervant's carelefsnefs. But if fuch fire happens through
negligence of any fervant (whofe lofs is commonly very
little), fuch fervant fhall forfeit ioo/. to be diftributed
among the fufferers 5 and, in default of payment, fhall be
committed to fome workhoufe, and there kept to hard
labour for eighteen months m . A mafter is, laftly, charge-
able if any of his family layeth or cafteth any thing out
of his houfe into the ftreet or common highway, to the da-
mage of any individual, or the common nuifance of his ma-
jefty's liege people n ; for the mafter hath the fuperintend-
ence and charge of all his houfehold. And this alfo agrees
with the civil law * -, which holds that the paterfamilias, in
this and fimilar cafes, " ob alterius culpam tenetur t fiviferui
'five liber i"
WE may obferve, that in all the cafes here put, the mafter [ 432 ]
may be frequently a lofer by the truft repofed in his fervant,
but never can be a gainer ; he may frequently be anfwerable
for his fervant's mifbehaviour, but never can fhelter himfelf
from punifhment by laying the blame on his agent. The
reafon of this is ftill uniform and the fame ; that the wrong
done by the fervant is looked upon in law as the wrong of the
mafter himfelf ; and it is a Handing maxim, that no man fhall
be allowed to make any advantage of his own wrong (12).
m Upon a fimilar principle, by the ferers; or, if he was not able to pay,
law of the ia tables at Rome, a per- was to fuffer a corporal punHhment.
fon by whofe negligence any fire began, n Noy's max. c. 44.
wa* bound to pay double to the fuf- Ff. 9. 3. I In/1. 4,5. 1.
( 12 ) In a late cafe where it was proved that a fervant wilfully
drove his matter's chariot againft & chaife, but that the mafter
was not prefent, nor did he in any manner direft, or aflent to,
the aft of the fervant, it was held by the court of king's bench,
that the owner of the chaife could not maintain an aUon of
trefpafs againft the mafter. Macmanus v. Cricket, i Eafl t 106.
From that and the cafes there cited and confidered, the following
Q q 4 general
432 The RIGHTS BOOK I.
general conclufions may be drawn ; where the at of the fervant ia
wilful, and fuch that an aftion of trefpafs, and not an aftion upon
the cafe, muft be brought, the mafter is not refponfible, unlefs the
aft is done by his command or affent.
But where mifchief enfues from the negligence or unflcilfulnefa
of the fervant, fo that an aftion upon the cafe muft be brought,
and not an aftion of trefpafs, then the mafter will be anfwerable
for the confequences in an aftion upon the cafe, if it is fhewn that
the fervant is afting in the execution of his matter's bufinefs and
authority.
The law which obliges matters to anfwer for the negligence and
unikilfulneis of their fervants, though oftentimes fevere upon an
innocent perfon, is founded upon principles of public policy, in
order to induce matters to be careful in the choice of their fervants,
upon whom both their own fecurity and that of others fo greatly
depends. And to prevent matters from being impofed upon in the
characters of their fervants, it is enafted by 32 Geo. III. c. 56.
that if any perfon (hall give a falfe character of a fervant, or a falfe
account of his former fervice ; or, if any fervant mall give fuch falfe
account, or fhall bring a falfe chara&er, or mall alter a certificate
of a charafter, he (hall, upon convi&ion before a juftice of the
peace, forfeit 2o/. with ioj. cofts. The informer is a competent
witnefs. But if any fervant will inform againft an accomplice, he
(hall be acquitted.
An a&ion was tried at the fittings after Trinity -term 1792, at
Guildhall, againft a perfon who had knowingly given a falfe cha-
racter of a man to the plaintiff, who was thereby induced to take
him into his fervice. But this fervant foon afterwards robbed hi*
mafter of property to a great amount, for which he was executed ;
and the plaintiff recovered damages againft the defendant to the
extent of his lofs. This was an adion of great importance to the
public, and there can be no doubt but it was founded in drift
principles of law and juftice. Parley v. Freeman.
Ch. 15. ^PERSONS. 433
CHAPTER THE FIFTEENTH.
OF HUSBAND AND WIFE.
,ii alt.*** !.*"- i.-
r f "^HE fecond private relation of perfons is that of mar-
-*- riage, which includes the reciprocal rights and duties
of hufoand and wife } or, as moft of our elder law-books call
them, of baron and feme. In the confideration of which I
(hall, in the firft place, inquire, how marriages may be con-
tracted or made i mall next point out the manner in which
they may be difiblved ; and (hall, laftly, take a view of the
legal effects and confequence of marriage.
&.-4QM "*>**'.** ^i>-<' I J< l
I. OUR law confiders marriage in no other light than as a
civil contract. The holinefs of the matrimonial ftate is left
entirely to the ecclefiaftical law : the temporal courts not
having jurifdiction to confider unlawful marriage as a fin, but
merely as a civil inconvenience. The punifhment, therefore,
or annulling, of inceftuous or other unfcriptural marriages,
is the province of the fpiritual courts ; which act pro falute
animae*. And, taking it in a civil light, the law treats it
as it does all other contracts : allowing it to be good and
valid in all cafes, where the parties at the time of making it
were, in the firft place, willing to contract ; fecondly, able
to contract ; and, laftly, actually did contract, in the proper
forms and folcmnities required by law.
Salic, ia.1.
FJIIST,
434 The RIGHTS BOOK I.
FIRST, they muft be -willing to contract. " Confenfus, non
" concubitttS) facit nuptias? is the maxim of the civil law in
this cafe b : and it is adopted by the common lawyers c , who
indeed have borrowed (efpecially in antient times) almoft all
their notions of the legitimacy of marriage from the canon
and civil laws.
SECONDLY, they muft be able to contract. In general all
perfons are able to contract themfelves in marriage, unlefs
they labour under fome particular difabilities, and incapa-
cities. What thofe are, it will be here our bufmefs to
inquire.
Now thefe difabilities are of two forts : firft, fuch as are
canonical, and therefore fufficient by the ecclefiaftical laws
to avoid the marriage in the fpiritual court j but thefe in our
law only make the marriage voidable, and not ipfofafto void,
until fentence of nullity be obtained. Of this nature are
pre-contract ; confanguinity, or relation by blood ; and affinity^
or relation by marriage; and fome particular corporal infirm-
ities. And thefe canonical difabilities are either grounded
upon the exprefs words of the divine law, or are confequences
plainly deducible from thence : it therefore being finful in
the perfons who labour under them to attempt to contract
matrimony together, they are properly the object of the
ecclefiaftical magiftrate's coercion ; in order to feparate the
offenders, and inflicl: penance for the offence, profalute anima-
rum. But fuch marriages not being void ab initio, but void-
able only by fentence of feparation, they are efteemed valid
to all civil purpofes, unlefs fuch feparation is actually made
during the life of the parties. For, after the death of either
of them, the courts of common law will not fuffer the fpiri-
tual courts to declare fuch marriages to have been void ; be-
caufe fuch declaration cannot now tend to the reformation of
the parties d . And therefore when a man had married his firft
wife's fifter, and after her death the bifliop's court was pro-
b Ff. 50. 17. 30. c Co. Litt. 33. * Hid.
c ceding
Ch. 15. of PERSONS. 435
ceeding to annul the marriage and baftardize the iflue, the
court of king's bench granted a prohibition quoad hoc ; but
permitted them to proceed to punifti the hufband for inceft 6 .
Thefe canonical difabilities being entirely the province of the
ecclefiaftical courts, our books are perfectly filent concerning
them. But there are a few ftatutes which ferve as directories
to thofe courts, of which it will be proper to take notice.
By ftatute 32 Hen. VIII. c. 38. it is declared, that all per-
fons may lawfully marry, but fuch as are prohibited by God's
law (i) ; and that all marriages contracted by lawful perfons
in the face of the church, and confummated with bodily
knowledge and fruit of children, {hall be indiflbluble. And
(becaufe, in the times of popery, a great variety of degrees of
kindred were made impediments to marriage, which impedi-
ments might however be bought off for money) it is declared
by the fame ftatute, that nothing (God's law excepted) {hall
impeach any marriage, but within the Levitical degrees (2) ;
the fartheft of which is that between uncle and niece f . By
e Salk. 548. f Gilb.Rep.ij8.
1 i ) In this ftatute the prohibitions by God's law are not fpe-
ciaed ; but in the 25 Hen. VIII. c. 22. and 28 Hen. VIII. c. 7.
the prohibited degrees are particularized. It is doubtful whether
thefe two laft ftatutes are in force. 2 Burn. EC. 405. But fo far
they feem only to be declaratory of the Levitical law. The
former declared null and void the marriage between Hen. VIII.
and Catharine of Arragon, the widow of his eldeft brother prince
Arthur ; for which a difpenfation had been obtained from the
pope.
The queftion refpeding the validity of this difpenfation pro-
duced that quarrel between the king and the pope, which ended
in the abolition of the dominion of the latter in this country : and
the inconftancy of that capricious king's affe&ions accelerated the
reformation of our religion*
(2) The prohibited degrees are all which are under the 4th de-
gree of the civil law, except in the afcending and defcending line,
and by the courfe of nature it is fcarcely a poflible cafe that any
one mould ever marry his iffue in the 4th degree ; but between col-
laterals
435
The RIGHTS BOOK I.
the fame ftatute all impediments arifmg from pre-contra&s
to other perfons were abolifhed and declared of none effect,
unlefs they had been confummated with bodily knowledge :
in which cafe the canon law holds fuch contract to be a
marriage defafto. But this branch of the ftatute was re-
pealed by ftatute 2 & 3 Edw. VI. c. 23. How far the aft
of 26 Geo. II. c. 33. (which prohibits all fuits in ecclefiaftical
courts to compel a marriage, in confequence of any contract)
may collaterally extend to revive this claufe of Henry VIII.'s
ftatute, and abolifti the impediment of pre-contract, I leave
to be confidered by the canonifts (3).
laterals it is univerfally true, that all who are in the 4th or any
higher degree are permitted to marry ; as firft-coufins are in the
4th degree, and therefore may marry, and nephew and great-aunc,
or niece and great -uncle, are alfo in the 4th degree, and may in-
termarry : and though a man may not marry his grandmother, it
is certainly true that he may marry her fitter. Gllf. Cod. 413.
See the computation of degrees by the civil law, 2 vol. p. 207.
The fame degrees by affinity are prohibited. Affinity always
arifes by the marriage of one of the parties fo related ; as a huf-
band is related by affinity to all the confanguinei of his wife ; and
vice verfa the wife to the hufband's confanguinei: for the hufband
and wife being confidered one flefli, thofe who are related to the one
by blood, are related to the other by affinity. Gibf. Cod. 412.
Therefore a man after his wife's death cannot marry her fitter,
aunt, or niece. But the confanguinei of the hufband are not at all
related to the confanguinei of the wife. Hence two brothers may
marry two fitters, or father and fon a mother and daughter ; or if
a brother and fitter marry two perfons not related, and the brother
and fitter die, the widow and widower may intermarry ; for though
a man is related to his wife's brother by affininity, he is not fo to
his wife's brother's wife, whom, if circumftances would admit, it
would not be unlawful for him to marry.
( 3 ) A contract per verba de prefenti temper e ufed to be con-
fidered in the ecclefiaftical courtb ipfum matrimonium, and if either
party had afterwards married, this, as a fecond marriage, would
have been annulled in the fpiritual courts, and the firft contract
enforced. See an inftauce of it 4 Co. 29. But as thi*pie-engage-
mcnt
Ch. 15. of PERSONS. 435
THE other fort of difabilities are thofe which are created,
or at leaft enforced, by the municipal laws. And though
fome of them may be grounded on natural law, yet they are
regarded by the laws of the land, not fo much in the light of
any moral offence, as on account of the civil inconveniences
they draw after them. Thefe civil difabilities make the con-
tract void ab initio, and not merely voidable ; not that they
diflblve a contract already formed, but they render the [ 436
parties incapable of performing any contract at all : they do
not put afunder thofe who are joined together, but they pre-
vioufly hinder the junction. And, if any perfons under
thefe legal incapacities come together, it is a meretricious
and not a matrimonial union.
1. THE firft of thefe legal difabilities is a prior marriage,
or having another hufband or wife living ; in which cafe,
befides the penalties confequent upon it as a felony (4), the
fecond marriage is to all intents and purpofes void * : poly-
gamy being condemned both by the law of the new teftament,
and the policy of all prudent ftates, efpecially in thefe
northern climates. And Juftinian, even in the climate of
modern Turkey, is exprefs h , that " duas uxores eodem tern-
pore habere non licet"
2. THE next legal difability is want of age. This is fuf-
ficient to avoid all other contracts, on account of the imbe-
cility of judgment in the parties contracting : a fortiori, there-
fore it ought to avoid this, the moft important contract of
any. Therefore, if a boy under fourteen, or a girl under
twelve years of age, marries, this marriage is only inchoate
and imperfect ; and when either of them comes to the age
8 Bro. Abr. tit. Eajlardy, pi. 8. " I"f' I- IO. 6.
.
ment can no longer be carried into effect as a marriage, I think we
may now be afTured that it will never more be an impediment to a
fubfequent marriage actually folemnized and confummated.
(4) See the exceptions, 4 rol. 164.
of
436 The RIGHTS BOOK I.
of confent aforefaid, they may difagree and declare the mar-
riage void, without any divorce or fentence in the fpiritual
court. This is founded on the civil law '. But the canon
law pays a greater regard to the conftitution, than the age,
of the parties k : for if they are babiles ad tnatrimonium, it is
a good marriage, whatever their age may be. And in our
law it is fo far a marriage, that, if at the age of confent they
agree to continue together, they need not be married again *.
If the hufband be of years of difcretion, and the wife under
twelve, when (he comes to years of difcretion he may difagree
as well as flie may ; for in contracts the obligation muft be
mutual ; both muft be bound, or neither (5) ; and fo it is,
vice verfa, when the wife is of years of difcretion, and the
hufband under" 1 .
437 ] 3* ANOTHER incapacity arifes from want of confent of
parents or guardians. By the common law, if the parties
themfelves were of the age of confent, there wanted no other
concurrence to make the marriage valid ; and this was agree-
able to the canon law. But, by feveral ftatutes n , penalties
4 Leon. Con/lit. 109. m Ibid.
* Decretal. /. 4 . tit. 1. qu. 3. n 6 & 7 Will. III. C. 6. 7 & 8 W. III.
1 Ca Litt. 79. c-35- 10 Ann. 0.19.
(5) This propofition is too generally exprefled ; for there are
various contracts between a perfon of full age and a minor, in which
the former is bound, and the latter is not. The authorities feem
decifive that it is true with regard to the contraft of marriage re-
ferred to the ages of 14 and 12 ; but it has alfo long been clearly-
fettled that it is not true with regard to contracts for marriage
referred to the minority under twenty-one.
For where there are mutual promifes to marry between two
perfons, one of the age of 2 1 and the other under that age, the
firft ia bound by the contraft, and on the fide of the minor it is
voidable ; or for a breach of the promife on the part of the perfon
of full age, the minor may maintain an aftion and recover damages,
but no aftion can be maintained for a fimilar breach of the contraft
on the fide of the minor. Holt v. Ward Clarencieux, Str. 937.
S. C. Fit*g. 175. 275.
of
Ch. 15. </" PERSONS. 437
of ioo/. are laid on every clergyman who marries a couple
either without publication of banns (which may give notice
to parents or guardians), or without a licence, to obtain which
the confent of parents or guardians muft be fworn to (6).
And by the ftatute 4 & 5 Ph. & M. c. 8. whofoever marries
any woman child under the age of fixteen years, without con-
fent of parents or guardians, (hall be fubjet to fine, or five
years' imprisonment : and her eftate during the hufband's(7)
life (hall go to and be enjoyed by the next heir. The civil law
indeed required the confent of the parent or tutor at all ages ;
unlefs the children were emancipated, or out of the parents'
power o : and if fuch confent from the father was wanting,
the marriage was null, and the children illegitimate p , but
the confent of the mother or guardians, if unreafonably with-
held, might be redrefled and fupplied by the judge, or the
prefident of the province q : and if the father was nan compos,
a fimilar remedy was given r . Thefe provifions are adopted
and imitated by the French and Hollanders, with this differ-
ence, that in France the fons cannot marry without confent
of parents till thirty years of age, nor the daughters till
twenty-five * 5 and in Holland, the fons are at their own dif-
pofal at twenty-five, and the daughters at twenty *. Thus
hath flood, and thus at prefent ftands, the law in other neigh-
bouring countries. And it has lately been thought proper
Ff. 13. ^. 2. to* 18. * Domat. of dowries, a. Montefq.
P Ff.i. 5. ii. Sp.L. 23. 7.
* Cod. 5. 4. I. t3* 20. * rinniut in Inf. l.l.t. IO.
r Inf. I. 10. X.
(6) By the 26 Geo. II. c. 33. f. 7. if any clergyman fhall marry
a couple out of a church or a public chapel, where banns had
been ufually publifhed before 1 754, unlefs by fpecial licence from
the archbifhop ; or fhall marry them without a licence or publica-
tion of banns ; he fhall be guilty of felony, and fhall be tranfported
for 14 years. And there have been inftances of convi&ion for this
offence.
(7) The conftruclion of the ftatute feems to be, that it fhall
alfo go to the next heir during the life of the wife, even after the
death of the hufband. i Brown. Ch. Rep. 23. But the contrary
has been decided in the exchequer. Amb. 73.
to
437 The RIGHTS BOOK I.
to introduce fomewhat of the fame policy into our laws by
ftatute 26 Geo. II. 0.33. whereby it is enacted, that all
marriages celebrated by licence (for banns fuppofe notice)
where either of the parties is under twenty-one, (not being
C 43** ] a widow or widower, who are fuppofed emancipated,) with-
out the confent of the father, or, if he be not living, of the
mother or guardians (8), (hall be abfolutely void. A like pro-
(8) A matter of fuch importance deferves to be more particu-
larly ftated } the party under age marrying by licence, if a minor,
and not having been married before, muft have the confent of a
father, if living ; if he be dead, of a guardian of his perfon lawfully
appointed; if there be no fuch guardian, then of the mother if (he
is unmarried ; if there be no mother unmarried, then of a guardian
appointed by the court of chancery.
' I have been inclined to think that the words lawfully appointed
comprehend a guardian appointed by the father, a guardian ap-
pointed by the court of chancery, and alfo, where fuch guardian
can exiit, a focage guardian, he being a guardian of the perfon of
the ward appointed by the law itfelf.
It is true, this guardianfhip continues only till the ward attains
the age of 14, and the mother in all cafes, except when fhe is
heir to her own fon, that is, when fhe would be heir to her hufband
without iffue, will be the focage guardian ; but if the parents
were both dead, and there was a focage guardian who confented
to the marriage of a girl under 14, would not this marriage be
valid if folemnized by a licence ? Here is the confent of a guardian
of the perfon of the party appointed by the law, and would not
this be within the meaning of the words lawfully appointed? The
confent of the guardian appointed by the court of chancery being
exprefsly mentioned in the laft inftance, feems to afford fome in-
ferences that that fpecies of guardian was not included within the
words lawfully appointed; but it affords a very flight inference
indeed, for though he was included in the general words, yet it
was abfolutely neceflary to name him exprefsly again ; and the
ftatute in effeft thereby declares, that if none of thofe perfons
previoufly defcribed are in exiftence, then, in order to give validity
to a marriage by licence, a guardian muft be appointed by the
court of chancery, for the exprefs purpofe of giving his confent
to it. And this is by no means repugnant with the fuppofition,
that if a guardian is appointed by the court of chancery after the
father's
Ch. 15. (/PERSONS. 438
vifion is made as in the civil law, where the mother or guardian
is non compos^ beyond fea, or unreafonably froward, to dif-
penfe with fuch confent at the difcretion of the lord chan-
cellor : but no proviGon is made, in cafe the father fhould
labour under any mental or other incapacity (9). Much may
be, and much has been faid, both for and againft this inno-
vation upon our antient laws and conftitution. On the one
father's death, his confent (hall precede that of the mother^ he
being a guardian lawfully appointed.
If thofe who compofed the marriage aft had meant only to in-
terpofe a guardian appointed by the father between the father and
the mother, furely they would have ufed the fpecific words
appointed by the father ', rather than the general words lawfully ap-
pointed. I have thought it proper to make thefe obfervations,
becaufe I fee that fir William Scott, in the cafe of Horner
v. Liddiard, p. 180. conftrues the words a guardian lawfully ap-
pointed, to mean a guardian appointed by the father only. He
cites no authority for this conftruftion. For the reafons I have
afiigned, I hope I may, without offence, prefume to queition, in
this inftance, the opinion of fo learned and refpeftable a judge.
See p. 459. K.ii.pojl.
(9) The words of the ftatutc are, " if any fuch guardian, or
mother, or any of them, whofe confent is made neceffary, (hall be
non compos mentis," Cffc. Under the words any of them, I conceive
that the chancellor would think himfelf enabled to confent for a
father, whofe confent it was thus impoffible to obtain.
In the 9 Geo* II. an aft for the preventing clandeftine mar-
riages in Ireland was parted : it enafts that if the parties are under
the age of twenty-one, and if they or their parents are entitled to,
or in poflefilon of, property to the amount fpecified, the marriage
fhall be void, if folemnized without the confent of the father,
or if he is dead, of the guardian of the party under age, or, if
there be neither, of the lord chancellor. But the marriage will
be valid, if a fuit be not commenced within a year to vacate it.
See Irifli Stat. 9 Geo. II. c. 1 1.
The mother's confent is not admitted into the Irifli ftatute,
though that ftatute unqueftionably fuggefted the general provifions
of the Englifh ftatute, 26 Geo. II. c. 33.
VOL. I.- R r hand,
438 The RIGHTS BOOK I.
hand, it prevents the clandefline marriages of minors, which
are often a terrible inconvenience to thofe private families
wherein they happen. On the other hand, reftraints upon
marriages, efpecially among the lower clafs, are evidently de-
trimental to the public, by hindering the increafe of the
people ; and to religion and morality, by encouraging licen-
tioufnefs and debauchery among the fingle of both fexes, and
thereby deftroying one end of fociety and government, which
is concubitu prohibere vago. And of this laft inconvenience
the Roman laws were fo fenfible, that at the fame time that
they forbad marriage without the confent of parents or guar-
dians, they were lefs rigorous upon that very account with
regard to other reftraints : for if a parent did not provide a
hufband for his daughter, by the time (he arrived at the age
of twenty-five, and (he afterwards made a flip in her con-
duel:, he was not allowed to difmherit her upon that ac-
count, " quia non fua culpa t fed parentum, id commififfe
" cognofcitur u ."
4. A FOURTH incapacity is want of reafon ; without a
competent mare of which, as no other, fo neither can the
matrimonial contract, be valid w . It was formerly adjudged,
that the iflue of an idiot was legitimate, and confequently
that his marriage was valid. A ftrange determination ! fince
confeat is abfolutely requifite to matrimony, and neither
idiots nor lunatics are capable of confenting to any thing.
And therefore the civil law judged much more fenfibly when
it made fuch deprivations of reafon a previous impediment ;
C 439 ] though not a caufe of divorce, if they happened after mar-
riage *. And modern refolutions have adhered to the reafon
of the civil law, by determining y that the marriage of a lu-
natic, not being in a lucid interval, was abfolutely void.
But as it might be difficult to prove the exaft ftate of the
party's mind at the actual celebration of the nuptials, upon
u Nov. nj. ii. * Ff. zz.tit. 1. 1. 8. & tit. a. /. 16.
w i Roll; Ahr. 357. r Morrifon's cafe coram dclegat.
this
Ch. 15. of PERSONS. 439
this account (concurring with fome private family 8 reafonsQ
the ftatute 15 Geo. II. c. 30. has provided that the marriage
of lunatics and perfons under phrenzies (if found lunatics
under a commiffion, or committed to the care of truftees by
any act of parliament), before they are declared of found
mind by the lord chancellor or the majority of fuch truftees,
(hall be totally void (10).
LASTLY, the parties muft not only be willing and able to
contract, but actually muft contract themfelves in due form
2 See private ats a 3 Geo. II. c. 6.
( 10) Till the 2 & 3 Edw. VI. c. 21. the clergy in this country
were prohibited to marry, by various laws and canons ; a ftatute
in the 3 1 Hen. VIII. c. 14. having even made it felony. But
the legiflature by 2 & 3 Edw. VI. c. 21. repealed the laws and
canons which impofed that fevere reftri&ion upon the clergy,
and granted them the fame indulgence that the laity enjoyed.
The preamble to that ftatute, as almoft all the preambles to the
ftatutes in that (hort reign, is exprefled with a remarkable degree
of eloquence. " Although it were not only better for the efti-
" mation of priefts and other minifters in the church of God, to
'* live chafte, fole, and feparate from the company of women,
" and the bond of marriage ; but alfo thereby they might the
" better intend to the adminiftration of the gofpel, and be lefs
" intricated and troubled with the charge of houfehold, being
'* free and unburthened from the care and coft of finding wife and
children ; and that it were moft to be wimed, that they would
" willingly and of their felves endeavour themfelves to a perpe-
" tual chaftity and abftinence from the ufe of women : yet, for-
" afmuch as the contrary hath rather been feen, and fuch un-
" cleanlinefs of living, and other great inconveniences not meet
to be rehearfed, have followed of compelled chaftity, and of
" fuch laws as have prohibited thofe the godly ufe of marriage ;
" it were better, and rather to be fufFered in the commonwealth,
" that thofe which could not contain mould, after the counfel
'* of fcripture, live in holy marriage, than feignedly abufe, with
" worfe enormity, outward chaftity or fingle life." But this
ftatute, like all the other reforms in the church, was repealed by
R r 2 queen
439 The RIGHTS BOOK I.
of law, to make it a good civil marriage. Any contract
made, per vcrba de praefenti, or in words of the prefent tenfe,
and in cafe of cohabitation per verba de futuro alfo, between
perfons able to contract, was before the late at deemed a valid
marriage to many purpofes ; and the parties might be com-
pelled in the fpiritual courts to celebrate it in facie eccleftae.
But thefe verbal contracts are now of no force to compel a
future marriage . Neither is any marriage at prefent valid,
that is not celebrated in fome parifh church or public cha-
pel (i r ), unlefs by difpenfation from the archbifhop of Can-
terbury. It muft alfo be proceeded by publication of banns,
or by licence from the fpiritual judge. Many other formal-
ities are likewife prefcribed by the aft; the neglect of
Stat. 26 Geo. II. c. 33.
queen Mary, and it was not revived again till the i Ja. I. c. 25.
though the thirty -nine articles had been pafled in convocation in
the fifth year of the reign of queen Elizabeth ; the 326. of which
declares, that it^is lawful for the bifhops, priefts, and deacons, as for
all other Chriitian men, to marry at their own difcretion.
The clerks in chancery, though laymen, were not allowed to
marry till the 14 & 15 Hen. VIII. c. 8. And no lay doftor of
civil law, if he was married, could exercife any ecclefiaftical jurif-
didion till 37 Hen. VIII. c. 7. 2 Sum. EC. L. 418.
( 1 1 ) The marriage aft requires, that the marriage (hall be cele-
brated in fome parifh church or public chapel, where banns had
been ufually publifhed ; /. e. before the 25th of March 1754. In
confequence of this conftru&ion, the court of king's bench were
obliged to declare a marriage void, which had been folemnized in
a chapel erefted in 1765. (Doug. 659.) And as there were
many marriages equally defective, an aft of parliament was im-
mediately pafled, which legalized all marriages celebrated in fuch
churches or chapels fince the paffing of the marriage aft ; and it
alfo indemnified the clergymen from the penalties they had in-
curred. 21 Geo. III. c. 53.
A fimilar aft was pafled, viz. the 44 Geo. III. c. 77. to le-
galize all marriages folemnized in fuch chapels before the 25th of
March 1805. Surely fome other 'general remedy ought to be
adopted.
which,
Ch. 15* of PERSONS* 439
which, though penal, does not invalidate the marriage. It
is held to be alfo effential to a marriage, that it be per-
formed by a perfon in orders b ; though the intervention of
a prieft to folemnize this contract is merely juris pofttivi,
and not Jiff is naturalis out divini : it being faid that pope
Innocent the third was the firit who ordained the celebra-
tion of marriage in the church c ; before which it was to-
tally a civil contract:. And in the times of the grand re- [ 440 ]
bellion, all marriages were performed by the juftices of the
peace ; and thefe marriages were declared valid, without
any frefh folemnization, by ftatute 12 Car. II. c. 33. But,
as the law now (lands, we may upon the whole collect,
that no marriage by the temporal law is ipfo faElo void t
that is celebrated by a perfon in orders, in a parifh church
or public chapel (or elfewhere, by fpecial difpenfation)
in purfuance of banns or a licence, between fingle per-
fons, confenting, of found mind, and of the age of
twenty-one years ; or of the age of fourteen in males and
twelve in females, with confent of parents or guardians, or
without it in cafe of widowhood. And no marriage is i>oid~
able by the ecclefiaftical law, after the death of either of the
parties, nor during their lives, unlefs for the canonical im-
pediments of pre-contract, if that indeed ftill exifts ; of con-
fanguinity j and of affinity, or corporal imbecility, fubfifUng
previous to the marriage.
II. I AM next to confider the manner in which marriages
may be diflblved ; and this is either by death, or divorce.
There are two kinds of divorce, the one total, the other par-
tial ; the one a vinculo matrimonii, the other merely a menfa
et thoro. The total divorce, a vinculo matrimonii, muft be for
fome of the canonical caufes of impediment before men-
tioned i and thofe, exifting before the marriage, as is always
the cafe hi confanguinity j not fupervenient, or anting after-
wards y as may be the cafe in affinity or corporal imbe-
t ,tj \
c Moor. i/o.
R r 3 ciiuy.
440 The RIGHTS BOOK I.
cility(i2). For in cafes of total divorce, the marriage is
declared null, as having been absolutely unlawful ab initio ;
and the parties are therefore feparated pro falute animarum ;
for which reafon, as was before obferved, no divorce can be
obtained, but during the life of the parties. The iflue of
fuch marriage as is thus entirely diflblved, are baftards d .
DIVORCE a menfa et thoro is when the marriage is juft and
lawful ab initio, and therefore the law is tender of diflblving
it ; but for fome fupervenient caufe, it becomes improper or
[ 441 "] impoflible for the parties to live together : as in cafe of
intolerable ill temper, or adultery in either of the parties.
For the canon law, which the common law follows in this
cafe, deems fo highly and with fuch myfterious reverence of
the nuptial tie, that it will not allow it to be unloofed for
any caufe whatfoever, that arifes after the union is made.
And this is faid to be built on the divine revealed law ;
though that exprefsly afligns incontinence as a caufe, and
indeed the only caufe, why a man may put away his wife
and marry another e . The civil law, which is partly of pa-
gan original, allows many caufes of abfolute divorce ; and
fome of them pretty fevere ones : (as if a wife goes to the
theatre or the public games, without the knowledge and con-
fent of the hufband f :) but among them aldultery is the prin-
cipal, and with reafon named the firft g . But with us in
" Co. Litt. 235. ' Nov. 117.
e Matt. xix. y. e Cod, 5. 17. 8.
(12) Corporal imbecility may arife after the marriage, which
will not then vacate the marriage, becaufe there was no fraud in
the original contract ; and one of the ends of marriage, viz. the
legitimate procreation of children, may have been anfwered :
but no kindred by affinity can happen fubfequently to the mar-
riage ; for as affinity always depends upon the previous marriage
of one of the parties fo related, if a hufband and wife are not
fo related at the time of the marriage, they never can become fo
afterwards.
England
Ch. 15. ^PERSONS. 441
England adultery is only a caufe of feparation from bed and
board h : for which the beft reafon that can be given is, that
if divorces were allowed to depend upon a matter within
the power of either of the parties, they would probably be
extremely frequent ; as was the cafe when divorces were
allowed for canonical difabilities, on the mere confeffion of
the parties ', which is now prohibited by the canons k (13).
However, divorces a vinculo matrimoniif for adultery, have
of late years been frequently granted by a& of parlia-
ment (14).
h Moor. 683. k Can. 1603. c. 105.
' a Mod 314.
(13) A hufband cannot obtain a divorce in the ecclefiaftical
courts for the adultery of his wife if me recriminates, and can
prove that he alfo has been unfaithful to the marriage vow ; this
feems to be founded on the following rational precept of the civil
law : jttdex adulterii ante oculos habere debet et inqvirere, an maritus
pudice vivenj) mulieri^quoque bonos mores colendi autor fitertt. Per-
intquum enim vtdetvr ejfe, tit pudicitiam vir ab uxore ex'tgat, quam igfe
non exhibeat. Ff. 48. 5. 13.
(14) To prevent divorces a vinculo matrimonii from being ob-
tained in parliament by fraud and colluiion, the two houfes not
only examine witnefies to be convinced of the adultery of the
wife, but they require alfo that the hufband mail have obtained a
fentence of divorce in the fpiritual courts, and a verdiA with da-
mages in a court of law from fome one who has had criminal in-
tercourfe with the wife.
This is not a {landing order of the houfe of lords, but it is
adopted as a rule of caution, and it may be difpenfed with,
where the circumftances are fuch that the adultery of the wife
can be proved by fatisfa&ory evidence, and where at the fame
time it is impoffible for the hufband to obtain a verdift in an action
at law.
It was difpenfed with in the cafe of a naval officer, whofe wife
had been brought to bed of one child, in his abfence upon duty
abroad ; and upon his return was far advanced in her pregnancy
with a feckmd, and where he could not difcover the father. So
R r 4 in
441 The RIGHTS BOOK I.
IN cafe of divorce a menfa et thoro, the law allows alimony
to the wife : which is that allowance, which is made to a
woman for her fupport out of the hufband's eftate : being
fettled at the difcretion of the ecclefiaftical judge, on con-
fideration of all the circumftances of the cafe. This is
fometimes called her ejlovers ; for which, if he refufes pay-
ment, there is (befides the ordinary procefs of excommuni-
cation) a writ at common law de ejloveriis habendis, in or-
der to recover it 1 . It is generally proportioned to the
442 ] rank and quality of the parties. But in cafe of elope-
ment, and living with an adulterer, the law allows her no
alimony w .
III. HAVING thus (hewn how marriages may be made, or
difiblved, I come now, laftly, to fpeak of the legal confe-
quences of fuch making, or diflblution.
By marriage, the hufband and wife are one perfon in law n :
that is, the very being or legal exiftence of the woman is
fufpended during the marriage, or at leaft is incorporated
and confolidated into that of the hufband : under whofe
wing, protection, and cover, (he performs every thing ; and
is therefore called in our law-french a feme-covert, foemina
olro co-operta ; is faid to be covert-baron, or under the pro-
tection and influence of her hufband, her baron, or lord ;
and her condition during her marriage is called her cover-
ture (15). Upon this principle, of an union of perfon in
1 i Lev. 6. n Co. Litt. 112.
m Cowel. tit. Alimony.
in another cafe, where a married woman had gone to France, was
divorced there, and had married a Frenchman.
It would alfo be difpenfed with, if the adulterer mould die
before the hufband could obtain a verdid.
( 1 5 ) Whatever may be the origin of feme-covert, it is not per-
haps unworthy of obfervation, that it nearly correfponds in it's
lignification to the Latin word nupta ; for that is derived -
Ch. 15. of PERSONS. 442
hufband and wife, depend almoft all the legal rights, du-
ties, and difabilities, that either of them acquire by the
marriage. I fpeak not at prefent of the rights of property,
but of fuch as are merely perfonal. For this reafon, a man
cannot grant any thing to his wife, or enter into covenant
with her , for the grant would be to fuppofe her feparate
exiftence: and to covenant with her, would be only to
covenant with himfelf(i6): and therefore it is alfo gene-
rally true, that all compacts made between hufband and
wife, when fmgle, are voided by the intermarriage p . A
woman indeed may be attorney for her hufband q ; for that
implies no feparation from, but is rather a reprefentation of,
her lord. And a hufband may alfo bequeath any thing to
his wife by will j for that cannot take effecT: till the cover-
ture is determined by his death r . The hufband is bound
to provide his wife with necefiaries by law, as much as
himfelf ; and if the contracts debts for them, he is obliged
to pay them ; but, for any thing befides neceflaries, he is
not chargeable 1 (17). Alfo if a wife elopes, and lives
with another man, the hufband is not chargeable even for [ 443
neceflaries * : at leaft if the perfon who furnifhes them is
fufficiently apprized of her elopement w . If the wife be
CaLitt. iu. Salk. 118.
v Cro. Car. 551. ' i Sid. no.
<i F.N.B.37. Stra. 647.
r Co.Litt. m. w i Lev. 5.
bendo, i. e. tegendo, becaufe the modefty of the bride, it is faid,
was fo much confulted by the Romans upon that delicate occafion,
that me was led to her hufband's home covered with a veil.
( 1 6) But the hufband may grant to the wife by the interven-
tion of truftees ; Harg. Co. Lift. 30. ; and he may furrender a
copyhold to her ufe. 4 Co. 29.
(17) What are neceflaries muft be afcertained by a jury from
the rank and circumftances of the hufband.
Lord Kenyon has held at niji prius, that if a hufband gives
notice to a particular tradefman not to deal with his wife unlefs fhe
brings ready money, that tradefman cannot afterwards maintain an
action againft the hufband even for neceflaries.
15 indebted
443 The RIGHTS BOOK I.
indebted before marriage, the hufband is bound afterwards
to pay the debt ; for he has adopted her and her circum-
ftances together * (18). If the wife be injured in her
perfon or her property, (he can bring no a&ion for redrefs
without her hufband's concurrence, and in his name as
well as her own y : neither can {he be fued, without making
the hufband a defendant z . There is indeed one cafe
where the wife {hall fue and be fued as a feme fole, viz.
where the hufband has abjured the realm, or is banifhed*,
for then he is dead in law (19); and, the hufband being
* 3 Mod.i86. in the courts of Athens. (Pot. Antiq.
y Salk. 119. i Roll. Abr. 347. b. i. c. ai.)
z Bro. Error. 173. i Leon. 314. Co. Litt. 133.
i Sid. 120. This was alfo the pra&ice
(18) But though the hufband has had a great fortune with his
wife, if fhe dies before him, he is not liable to pay her debts con-
traded before marriage, either in law or equity, unlefs there is
fome part of her perfonal property which he did not reduce into
his pofieffion before her death, which he muft afterwards recover
as her adminiftrator ; and to the extent of the value of that property,
he will be liable to pay his wife's debts, dum fola, which remained
undifcharged during the coverture, i P. Wms. 468.
(19) This principle had been extended to a cafe which was
thought analogous to that where the hufband was confidered dead
in law, viz. where a married woman was feparated from her hufband,
and was allowed a feparate maintenance by deed ; it having been
decided by the court of king's bench in feveral inftances, that if
the wife under fuch circumilances contrac\ed debts, fhe was liable
to be fued as a feme fole. I T. R. 5.
But a fimilar cafe has fince been argued before all the judges,
and their unanimous judgment was pronounced by lord Kenyon, in
the conclufion of which he declares, that " we find no authority in
" the books to fhew that a man and his wife can, by agreement
" between themfelves, change their legal capacities and characters ;
" or that a woman may be fued as zfemefole, while the relation of
" marriage fubfifts, and fhe and her hufband are living in this king-
" dom." Marfhall v. Rutton, 8 T. R. 545.
If the hufband turns away hie wife, lit is liable to tradefmen
foj
Ch. 15. of PERSONS. 443
thus difabled to fue for or defend the wife, it would be
moft unreafonable if (he had no remedy, or could make no
defence at all. In criminal profecutions, it is true, the
wife may be indi&ed and punifhed feparately b ; for the
union is only a civil union. But, in trials of any fort,
they are not allowed to be evidence for or againft, each
other : partly becaufe it is impoffible their teftimony
fhould be indifferent ; but principally becaufe of the union
of perfon : and therefore, if they were admitted to be wit-
nefiesfor each other, they would contradict one maxim of
law, " nemo in propria caufa tejlls effe debet ,-" and if againjl
each other, they would contradict another maxim, ' nemo
" tenetur feipfum accufare (20)." But, where the offence is
b i Hawk. P. C. 3. c a Hawk. P. C. 431.
for neceflaries, but not if (he elopes, though they have no notice
of the elopement.
If the hufband allows his wife a feparate maintenance by deed,
he cannot be fued for neceflaries, as long as the allowance is paid,
I Ld. Ray. 444.
But if the feparate maintenance be not paid to her, then he
may be fued again for neceflaries. 2 Bof. & Pull. N. ./?. 148.
( 20 ) The union of perfon is fcarce fufficient to account for this
rule of law j for the confeffions of the hufband or wife are no evi-
dence againft the other, yet the confeffions of the party are leg*l
evidence : but the better reafon feems to be that which is generally
affigned, viz. if a wife were a witnefs for her hufband, fhe would
be under a ftrong temptation to commit perjury; and if againft
her hufband, it would be contrary to the policy of marriage, and
might create much domeilic diffenfion and unhappinefs ; fo vice
verfft of the hufband. Butt. N. P. 286. But this rule, I fhould
think, ought to be confined to cafes where the hufband or wife is
a party in the aftion or profecution ; yet in one cafe it feems to
have been held, that a wife fhall not be called in any inftance to
give evidence, even tending to criminate her hufband. 2 T. R. 263.
If this be true, a plaintiff or profecutor may have the benefit of the
teftimony of the one, and the defendant or prifoner cannot have
the benefit of the teftimony of the other ; becaufe the evidence of
the latter would tend to charge the former with perjury. Surely
443 ^be RIGHTS BOOK I.
directly againft the perfon of the wife, this rule has been
ufually difpenfed with d : and therefore, by ftatute 3 Hen. VII.
c. 2- in cafe a woman be forcibly taken away, and mar-
ried, (he may be a witnefs againft fuch her hufband, in
order to convict him of felony. For in this cafe (he can
with no propriety be reckoned his wife ; becaufe a main
ingredient, her confent, was wanting to the contract : and
alfo there is another maxim of law, that no man (hall take
advantage of his own wrong ; which the ravifher here would
do, if by forcibly marrying a woman he could prevent her
[ 444 ] from being a witnefs, who is perhaps the only witnefs, to
that very fad!;.
IN the civil law the hufband and the wife are confidered
as two diftinct perfons ; and may have feparate eftates,
contracts, debts, and injuries'" : and therefore, in our eccle~
fiaftical courts, a woman may fue and be fued without her
hufband f (21).
BUT, though our law in general confiders man and wife
as one perfon, yet, there are fome inftances in which fhe is
d State trials, voL i. Lord Audley's e Cod. 4. 12. i,
cafe. Stra. 633. f I Roll. Abr. 398.
in fuch cafes, where the interefts of ftrangers are concerned, the
furtherance of public juftice is a conlideration far fuperior to the
policy of marriage, or the domeftic ftrifes of the witneffes.
In all cafes where the crime is a violence done to the perfon of
the other, the hufband may be evidence againft the wife, and
the wife againft the hufband. This was held by all the judges
in the cafe of Jaggar, who was convifted at York upon the evi-
dence of his wife of an attempt to poifon her. Spring- Affizes,
1797.
(21) A feme covert having a feparate eftate may, in a court
of equity, be fued as a feme fole, and be proceeded againft with-
out her hufband ; for, in refpeft of her feparate eftate, me is
looked upon as a feme fole. z Ver. 614. And in a court of equity
baron and feme are confidered as two diltintt perfons, and there-
fore a wife by her procbein amy, may fue her own hufbaiuL
3 Cox's P. Wms. 39.
feparafely
Ch. 15. 3f PERSONS.
feparately confidered ; as inferior to him, and acting by his
compulfion. And therefore all deeds executed, and afts
done, by her, during her coverture, are void j except it be a
fine, or the like matter of record, in which cafe fhe muft be
folely and fecretly examined, to learn if her a& be volun-
tary e. She cannot by will devife lands to her hufband,
unlefs under fpecial circumftances ; for at the time of
making it fhe is fuppofed to be under his coercion h . And
in fome felonies, and other inferior crimes, committed by
her, through conftraint of her hufband, the law excufes
her ' (22) ; but this extends not to treafon or murder.
THE hufband alfo (by the old law) might give his wife
moderate correction 15 . For, as he is to anfwer for her
mifbehaviour, the law thought it reafonable to intruft him
with this power of reftraining her, by domeftic chaftife-
ment, in the fame moderation that a man is allowed to
correct his apprentices or children ; for whom the mafter
or parent is alfo liable in fome cafes to anfwer. But this
power of correction was confined within reafonable bounds 1 ,
and the hufband was prohibited from ufmg any violence to
his wife, aliter quant ad virum, ex caufa regiminis et cajiiga-
tionis uxoris fuae, lic'ite et rationabiliter pertinet m . The civil
law gave the hufband the fame, or a larger, authority over [ 445
his wife: allowing him for fome mifdemefnors, fagellis et
fuflibus acriter verberare uxorem ; for others, only modicam
cajligationem adhibere n . But, with us, in the politer reign
of Charles the fecond, this power of correction began to
be doubted : and a wife may now have fecurity of the
peace againft her hufband p ; or, in return, a hufband
Liu. 669, 670. m F. N. B. 80.
Co. Litt. 112. n Nov. n 7. c. 14. & Van. Leemven
i Hawk. P. C. 2. in lee.
i Hawk. P. C. 130. i Sid. 113. 3 Keb.433-
Moor. 874. p a Lev. ia&
(22) The law excufes the wife, perhaps, in no crimes inferior
to felony. See this fubjeft confidered in the 4th vol. p. 29. n. 4.
againft
445 The RIGHTS BOOK I.
againft his wife q . Yet the lower rank of people, who
were always fond of the old common law, ftill claim, and
exert their antient privilege : and the courts of law will ftill
permit a hufband to reftrain a wife of her liberty, in cafe
of any grofs mifbehaviour r .
THESE are the chief legal effects of marriage during the
coverture j upon which we may obferve, that even the dif-
abilities which the wife lies under, are for the moft part
intended for her protection and benefit. So great a favourite
is the female fex of the laws of England (23) !
Stra. 1007. r St
(23) Nothing, I apprehend, would more conciliate the good-
will of the ftudent in favour of the laws of England, than the per-
fuafion that they had (hewn a partiality to the female fex. But I
am not fo much in love with my fubjeft as to be inclined to leave
it in pofleffion of a glory which it may not juftly deferve. In ad-
dition to what has been obferved in this chapter by the learned
Commentator, I {hall here ftate fome of the principal differences
in the Englifh law, refpe&ing the two fexes ; and I (hall leave it
to the reader to determine on which fide is the balance, and how
far this compliment is fupported by truth.
Hufband and wife, in the language of the law, are ftyled baron and
feme : the word baron, or lord, attributes to the hufband not a very
courteous fuperiority. But we might be inclined to think this
merely an unmeaning technical phrafe, if we did not recoiled, that
if the baron kills his feme, it is the fame as if he had killed a ftran-
ger or any other perfon ; but if the feme kills her baron, it is re-
garded by the laws a much more atrocious crime ; as me not
only breaks through the reftraints of humanity and conjugal affec-
tion, but throws off all fubje&ion to the authority of her hufband.
And therefore the law denominates her crime a fpecies of treafon,
and condemns her to the fame punifhment as if fhe had killed the
king. And for every fpecies of treafon, (though in petit treafon
the punifhment of men was only to be drawn and hanged, ) till the
30 Geo. III. c. 48. the fentence of women was to be drawn and
burnt alive. 4 Vol. 204.
By the common law all women were denied the benefit of clergy ;
and till the 3 & 4 W. & M. c. 9. they received fentence of death,
and
Ch. 15. 0f PERSONS. 445
and might have been executed, for the firft offence in fimple lar-
ceny, bigamy, manflaughter, &c., however learned they were,
merely becaufe their fex precluded the poflibility of their taking
holy orders ; though a man, who could read, was for the fame
crime fubjed; only to burning in the hand and a few months im-
prifonment. 4 Vol. 369.
Thefe are the principal diftin&ions in criminal matters ; now let
us fee how the account ftands with regard to civil rights.
Inteftate perfonal property is equally divided between males and
females ; but a fon, though younger than all his fitters, is heir to
the whole of real property.
A woman's perfonal property, by marriage, becomes abfo-
lutely her hufband's, which at his death he may leave entirely
away from her ; but if he dies without will, me is entitled
to one-third of his perfonal property, if he has children ; if not,
to one-half. In the province of York, to four-ninths, or three-
fourths.
By the marriage, the hufband is absolutely matter of the
profits of the wife's lands during the coverture ; and if he has
had a living child, and furvives the wife, he retains the whole of
thofe lands, if they are eftates of inheritance, during his life :
but the wife is entitled only to dower, or one-third, if me furvives,
out of the hufband's eftates of inheritance : but this me has
whether me has had a child or not.
But a hufband can be tenant by the courtefy of the truft
eftates of the wife, though the wife cannot be endowed of the truft
eftates of the hufband. 3 P. Wms. 229.
With regard to the property of women, there is taxation without
reprefentation : for they pay taxes without having the liberty of
voting for reprefentatives ; and indeed there feems at prefent no
fubftantial reafon why fingle women mould be denied this privilege.
Though the chaftity of women is prote&ed from violence, yet a
parent can have no reparation, by our law, from the feducer of his
daughter's virtue, but by ftating that fhe is his fervant, and that, by
the confequence of the fedu&ion, he is deprived of the benefit of
her labour : or where the feducer, at the fame time, is a trefpaffer
upon the clofe or premifes of the parent. But when by fuch forced
circumftances the law can take cognizance of the offence, juries
difregard the pretended injury, and give damages commenfurate to
the wounded feelings of a parent.
Female virtue, by the temporal law, is perfectly expofed to the
(landers of malignity and falfehood ; for any one may proclaim
in
445 T&e RIGHTS BOOK I.
in conversation, that the pureft maid, or the chafteft matron, is
the moft meretricious and incontinent of women, with impunity,
or free from the animadverfions of the temporal courts. Thus fe-
male honour, which is dearer to the fex than their lives, is left
by the common law to be the fport of an abandoned calumniator.
3 Vol. 1 25.
From this impartial ftatement of the account, I fear there is
little reafon to pay a compliment to our laws for their refpeft and
favour to the female fex.
Ch. 16. of PERSONS. 446.
CHAPTER THE SIXTEENTH.
OF PARENT AND CHILD.
r T^HE next, and the moft univerfal relation in nature,
-*- is immediately derived from the preceding, being that
between parent and child.
CHILDREN are of two forts ; legitimate and fpurious, or
baftards ; each of which we mail confider in their order ;
and, firft, of legitimate children.
I. A LEGITIMATE child is he that is born in lawful wed-
lock, or within a competent time aftewards. " Pater ejl
" quern nuptiae demon/Irani? is the rule of the civil law a ;
and this holds with the civilians, whether the nuptials hap-
pen before, or after, the birth of the child. With us in
England the rule is narrowed, for the nuptials muft be
precedent to the birth ; of which more will be faid when we
come to confider the cafe of baftardy. At prefent let us
inquire into, i. The legal duties of' parents to their legiti-
mate children. 2. Their power over them. 3. The duties
of fuch children to their parents.
i. AND, firft, the duties of parents to legitimate chil-
dren : which principally confift in three particulars; their
maintenance, their protection, and their education.
THE duty of parents to provide for the maintenance of their [ 447
children, is a principle of natural law ; an obligation, fays
Ff. . 4- 5-
VOL. I. S s Puffendorf,
447 Tbt RIGHTS BOOK I.
Puffendorf b , laid on them not only by nature herfelf, but by
their own proper aft, in bringing them into the world : for
they would be in the higheft manner injurious to their iflue,
if they only gave their children life, that they might after-
wards fee them perifh. By begetting them, therefore, they
have entered into a voluntary obligation, to endeavour, as
far as in them lies, that the life which they have beftowed
fhall be fupported and preferved. And thus the children
will have a perfect right of receiving maintenance from their
parents. And the prefident Montefquieu c has a very juft
obfervation upon this head : that the eftablifhment of mar-
riage in all civilized ftates is built on this natural obligation
of the father to provide for his children : for that afcertains
and makes known the perfon who is bound to fulfil this
obligation : whereas, in promifcuous and illicit conjunctions,
the father is unknown ; and the mother finds a thoufand
obftacles in her way ; fhame, remorfe, die conftraint of
her fex, and the rigour of laws ; that ftifle her inclinations
to perform this duty 5 and befides, fhe generally wants
ability.
THE municipal laws of all well-regulated ftates have taken
care to enforce this duty : though Providence has done it
more effectually than any laws, by implanting in the breaft
*>f every parent that natural s-opyy, or infuperable degree of
affection, which not even the deformity of perfon or mind,
not even the wickednefs, ingratitude, and rebellion of chil-
dren can totally fupprefs or extinguUh.
THE civil law d obliges the parent to provide maintenance
for his child : and, if he refufes, " judex de ea re cogtwfcet."
Nay, it carries this matter fo far, that it will not fuffer a parent
at his death totally to difmherit his child, without exprefsly
C 448 ] giving his reafon for fo doing ; and there are fourteen fuch
reafons reckoned up e , which may juftify fuch difinherifon.
If the parent alleged no reafon, or a bad, or a falfe one, the
L.of N.I. 4. c.i i. - ff-*5.3-5.
SP. L. h, 2. c. ^. ' KM,, i ic.
child
Ch. 1 6, ^PERSONS. 448
child might fet the will afide, tanquam teftamentum inoffidofum t
a teftament contrary to the natural duty of the parent. And
it is remarkable under what colour the children were to move
for relief in fuch a cafe ; by fuggefting that the parent had
loft the ufe of his reafon, when he made the inofficious tefta-
ment. And this, as PufFendorf obferves f , was not to bring
into difpute the teftator's power of difinheriting his own
offspring ; but to examine the motives upon which he did
it : and, if they were found defective in reafon, then to fet
them afide. But perhaps this is going rather too far ; every
man has, or ought to have, by the laws of fociety, a power
over his own property : and, as Grotius very well diftin-
guifhes 8 , natural right obliges to give a neceflary maintenance
to children ; but what is more than that they have no other
right to, than as it is given them by the favour of their pa-
rents, or the pofitive conftitutions of the municipal law.
LET us next fee what provifion our own laws have made
for this natural duty. It is a principle of law h , that there
is an obligation on every man to provide for thofe defcended
from his loins ; and the manner, in which this obligation
fhall be performed, is thus pointed out '. The father and
mother, grandfather and grandmother of poor impotent per-
fons (hall maintain them at their own charges, if of fufficient
ability, according as the quarter feffion (hall direct (i) J and
f 1. 4. c. ii. 7. h Rayrn. 500.
de. j. b. & f. 1. 1. c. 7. n-3. j Stat. 43 Eliz. c. a.
( i ) That is, they may refpe&ively be compelled to allow each
other 2OJ. a month or 1 3/. a year ; but that is the greateft al-
lowance which a fon can be obhged to make an aged parent, or a
father a legitimate child, by our law.
Any two juftices may make this order of allowance, which is in
faft in aid of the parifli to which the indigent perfon belongs.
The relation, on whom the order is made, may appeal to the juf-
tices in feflions, who, upon evidence, and the confideration of the
circumftances and ability of the party, can reduce the allowance,
or difcharge the order.
Ss 2 if
448 The RIGHTS! BOOK I.
if a parent runs away k , and leaves his children, the church-
wardens and overfeers of the parifh (hall feize his rents, goods,
and chattels, and difpofe of them toward their relief. By
the interpretations which the courts of law have made upon
thefe ftatutes, if a mother or grandmother marries again,
and was before fuch fecond marriage of fufficient ability
[ 449 ] to keep the child, the hufband {hall be charged to maintain
it ' : for this being a debt of hers, when fingle, fhall like
others extend to charge the hufband (2). But at her death,
the relation being diflblved, the hufband is under no farther
obligation.
No perfon is bound to provide a maintenance for this
iffue, unlefs where the children are impotent and unable
to work, either through infancy, difeafe, or accident ; and
then is only obliged to find them with neceflaries, the pe-
nalty on refufal being no more than 2os. a month. For
k Scat. 5 Geo. I. c. 8. ' Styles, 283. a Bulftr.346.
( 2 ) It has lately been decided, that the authorities here relied
upon by the learned Commentator never were law ; and that a
hufband is not bound, even whilft his wife is alive, to fupport her
parents or her children by a former hufband, or any other rela-
tion ; for the ftatute 43 Eliz. c. 2. extends only to relations by
blood. 4 J 1 . R. 1 1 8. But I conceive, if the wife had feparate
property, an order might be made upon her alone to fupport her
children and relations.
And where a ftep-father had maintained the fon of his wife
whilft he was under age, who, when he was of age, promifed
to pay his ftep-father the expence he had incurred ; he brought an
action for it, and it was held, he was not bound by the aft of
marriage with the mother to maintain her fon, but flood in that
refpect in the fituation of any other ftranger. And having done
an aft beneficial to the defendant in his infancy, it was a good
confideration for the defendant's promife after he came of age.
If the ftep-father had been bound by law to maintain the children
of the wife, then the promife of the ftep-fon would have been a
nudum paftum, and the ftep-father could have maintained no ac"tion
upon it. 4 Eajl, 82.
ii the
Ch. 1 6. sf PERSONS. 449
the policy of our laws, which are ever watchful to pro-
mote induftry, did not mean to compel a father to main-
tain his idle and lazy children in eafe and indolence :
but thought it unjuft to oblige the parent againft his will
to provide them with fuperfluities, and other indulgences
of. fortune ; imagining they might truft to the impulfe of
nature, if the children were deferving of fuch favours.
Yet, as nothing is fo apt to flifle the calls of nature as
religious bigotry, it enacted that if any popifh parent
fhall refufe to allow his proteftant child a fitting main r
tenance, with a view to compel him to change his reli-
gion, the lord chancellor ihall by order of court conftrain
him to do what is juft and reafonable. But this did not
extend to perfons of another religion, of no lefs bitter-
nefs and bigotry than the popim : and therefore in the very
next year we find an inftance of a jew of immenfe riches,
whofe only daughter having embraced chriftianity, he turned
her out of doors ; and on her application for relief, it was
held (he was entitled to none n (3). But this gave occafion
to another ftatute p , which ordains, that if jewifti parents
refufe to allow their proteftant children a fitting mainte-
nance fuitable to the fortune of the parent, the lord chan-
cellor on complaint may make fuch order therein as he fhall
fee proper.
OUR law has made no provifion to prevent the difinherit-
ing of children by will : leaving every man's property in his
own difpofal, upon a principle of liberty in this, as well as
every other action ; though perhaps it had not been amifs,
if the parent had been bound to leave them at the leaft a ne-
ceflary fubfiftence. Indeed, among perfons of any rank or
m Stat. ii Sc u W. HI. c. 4. e Com. Journ. 18 Feb.ia Mar.ij/oi.
n Lord Raym. 699. p I Ann. ft. i. 0.30.
(3) It was not held that flie was entitled to none, becaufe flic
was the daughter of a jew, but becaufe the order did not ftate that
flie was poor, or likely to become chargeable to the parifh.
853 fortune,
45
The RIGHTS BOOK I,
fortune, a competence is generally provided for younger
children, and the bulk of the eftate fettled upon the eldeft,
by the marriage-articles. Heirs alfo, and children, are fa-
vourites of our courts of juftice, and cannot be difinherited
by any dubious or ambiguous words ; there being required
the utmoft certainty of the teftator's intentions to take away
the right of an heir q .
FROM the duty of maintenance we may eafily pafs to that
of proteftion t which is alfo a natural duty, but rather per-
mitted than enjoined by any municipal laws : nature, in this
refpe&, working fo ftrongly as to need rather a check than a
fpur. A parent may by our laws maintain and uphold his
children in their law-fuits without being guilty of the legal
crime of maintaining quarrels r . A parent may alfo juf-
tify an aflault and battery in defence of the perfons of his
children : nay, where a man's fon was beaten by another
boy, and the father went near a mile to find him, and there
revenged his fon's quarrel by beating the other boy, of
which beating he afterwards unfortunately died ; it was not
held to be murder, but manflaughter merely *. Such indul-
gence does the law (hew to the frailty of human nature, and
the workings of parental affection.
THE laft duty of parents to their children is that of giving
them an education fuitable to their ftation in life ; a duty
pointed out by reafon, and of far the greateft importance of
any. For, as Puffendorf very well obferves u , it is not
C 45 1 ] eafy to imagine or allow, that a parent has conferred any
confiderable benefit upon his child by bringing him into the
world, if he afterwards entirely negle&s his culture and
education, and fuffers him to grow up like a mere beaft, to
lead a life ufelefs to others, and ftiameful to himfelf. Yet
the municipal laws of moft countries feem to be defective
in this point, by not conftraining the parent to beftow a pro-
i I Lev. 130. < Cro. Jac. 296. i Hawk. P. C. 83.
* a Inft. 564. L. of N. b. 6. c. a, la.
I Hawk. P. C. 131.
per
Ch- * 6. of PERSONS. 451
per education upon his children. Perhaps they thought it
punifliment enough to leave the parent, who neglects the in-
ftruction of his family, to labour under thofe griefs and
inconveniences, which his family, fo uninftructed, will be
fure to bring upon him. Our laws, though their defects in
this particular cannot be denied, have in one inftance made
a wife provifion for breeding up the rifing generation ; fmce
the poor and laborious part of the community, when pad
the age of nurture, are taken out of the hands of their pa-
rents, by the ftatutes for apprenticing poor children w 5 and
are placed out by the public infuch a manner, as may ren-
der their abilities, in their feveral ftations, of the greateil
advantage to the commonwealth. The rich indeed are left
at their own option, whether they will breed up their children
to be ornaments or dif-graces to their family. Yet in one
cafe, that of religion, they are under peculiar reftrictions :
for x it is provided, that if any perfon fends any child under
his government beyond the feas, either to prevent it's good
education in England, or in order to enter into or refide
in any popifti college, or to be inftructed, perfuaded, or
(Irengthened in the popifli religion ; in fuch cafe, befides the
difabilities incurred by the child fo fent, the parent or per- ^
fon fending (hail forfeit iool., which y (hall go to the fole
ufe and benefit of him that (hall difcover the offence. And
if any z parent or other, (hall fend or convey any perfon be-
yond fea, to enter into, or be refident in, or trained up in
any priory, abbey, nunnery, popifti univerfity, college, or
fchool, or houfe of jefuits, or priefts, or in any private popifti
family, in order to be inftructed, perfuaded, or confirmed in
the popifti religion ; or (hall contribute any thing towards |
their maintenance when abroad by any pretext whatever,
the perfon both fending and fent (hall be difabled to fue in
law or equity, or to be executor or adminiftrator to any
perfon, or to enjoy any legacy or deed of gift, or to bear any
w See page 4a6. * Stat. n & ja W. III. c. 4,
x Stat. i Jac. I. c. 4. and 3 Jac. I. z Stat. 3 Car. I. c. a.
S s 4 office
452 The RIGHTS BOOK I.
office in the realm, and (hall forfeit all his goods and chattels,
and Jikewife all his real eftate for life (4).
2. THE power of parents over their children is derived
from the former confideration, their duty : this authority
being given them, partly to enable the parent more effec-
tually to perform his duty, and partly as a recompence for
his care and trouble in the faithful difcharge of it. And
upon this fcore the municipal laws of fome nations have
given a much larger authority to the parents than others.
The antient Roman laws gave the father a power of life
and death over his children ; upon this principle, that he
who gave had alfo the power of taking away a . But the
rigour of thefe laws was foftened by fubfequent conftitu-
tions , fo that b we find a father banifhed by the emperor
Hadrian for killing his fon, though he had committed a
very heinous crime, upon this maxim, that " patria poteftas in
" pietate debit > non in atrocitate, conjiftere." But ftill they
maintained to the laft a very large and abfolute authority :
for a fon could not acquire any property of his own during
the life of his father ; but all his acquifitions belonged to
the father, or at leaft the profits of them for his life c .
THE power of a parent by our Englifh laws is much more
moderate j but ftill fufficient to keep the child in order and
obedience. He may lawfully correct his child, being under
age, in a reasonable manner d ; for this is for the benefit of his
education. The confent or concurrence of the parent to the
marriage of his child under age was alfo direEled by our an-
tient law to be obtained : but it is now abfolutely nece/ary s
Ff. 28. 2. 1 1. Cod. 8. 47. 10. Irfl. 2. 9. J.
Ff. 48. 9. 5. i Hjwk. P. C. 130.
(4) By the 31 Geo. III. c. 32. no perfon profefiing the Roman
catholic religion, who fhall take and fubfcribe the oath required by
that ftatute, fliall be fubjeft to the penalties in the ftatutes referred
to in the preceding page.
for
Ch. 16. of PERSONS. 452
for without it the contrail is void e . And this alfo is another
means, which the law has put into the parent's hands, in or-
der the better to difcharge his duty ; firft, of protecting his [ 453 ]
children from the fnares of artful and defigning perfons : and
next, of fettling them properly in life, by preventing the ill
confequences of too early and precipitate marriages. A fa-
ther has no other power over his fon's eftate, than as his
truftee 'or guardian ; for though he may receive the profits
during the child's minority, yet he mufl account for them
when he comes of age (5). 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 apprentice^ or fervants. The legal power of a
father, (for a mother, as fuch, is entitled to no power, but
only to reverence and refpedt,) the power of a father, I fay,
over the perfons of his children ceafes at the age of twenty-
one : for they are then enfranchifed by arriving at years of
discretion, or that point which the law has eftablifhed (as
fome muft neceflarily be eftablifhed), when the empire of
the father, or other guardian, gives place to the empire of
reafon. Yet, till that age arrives, this empire of the father
continues even after his death ; for he may by his will ap-
point a guardian to his children. He may alfo delegate part
of his parental authority, during his life, to the tutor or
fchoolmafter of his child ; who is then in loco parentis t and
Stat. 26 Geo. II. c. 33.
(5 ) Where children have fortunes independent of their parents,
lord Thurlow declared, that it was the practice in chancery to re-
fer it to the mafter, to inquire whether the parents were of ability
to maintain the children ; if not, then to report what would be a
proper maintenance ; and this practice did not vary where a main-
tenance was dire&ly given by the will, unlefs in cafes where it was
given to the father ; under which circumftance it was a legacy to
him. i Bra. 388. And an allowance will be made for their
maintenance and education for the time paft, fince the death of the
tellator, and for the time to come, until they attain the age of
t wenty-oue. 6 Ves. Jun. 454.
has
453 The RIGHTS BOOK I*
has fuch a portion of the power of the parent committed
to his charge, viz. that of reftraint and correction, as may
be necefiary to anfwer the purpofes for which he is em-
ployed.
3. THE duties of children to their parents arife from a
principle of natural juftice and retribution. For to thofe
who gave us exiftence, we naturally owe fubjection and obe-
dience during our minority, and honour and reverence ever
after : they, who protected the weaknefs of our infancy, are
entitled to our protection in the infirmity of their age ; they,
who by fuftenance and education have enabled their offspring
to profper, ought in return to be fupported by that offspring in
cafe they ftand in need of affiftance. Upon this principle
proceed all the duties of children to their parents which are
C 454 ] en j ome( l by pofitive laws. And the Athenian laws f carried
this principle into practice with a fcrupulous kind of nicety ;
obliging all children to provide for their father, when fallen
into poverty ; with an exception to fpurious children, to
thofe whofe chaftity has been proftituted by confent of the
father, and to thofe whom he had not put in any way of
gaining a livelihood. The legiflature, fays baron Montef-
quieu g , confidered, that in the firft cafe the father, being
uncertain, had rendered the natural obligation precarious ;
that in the fecond cafe, he had fullied the life he had given,
and done his children the greateft of injuries, in depriv-
ing them of their reputation ; and that in the third cafe
he had rendered their life (fo far as in him lay) an infup-
portable burthen, by furnifhing them with no means of
fubfiftence.
OUR laws agree with thofe of Athens with regard to the
firft only of thefe particulars, the cafe of fpurious iffue. In
the other cafes the law does not hold the tie of nature to be
difiblved by any mifbehaviour of tfce parent ; and therefore
a child is equally juftifiable in defending theperfon, or main-
' Potter's Antiq. b. 4. c.ij. Sp. L. b. 36. c. 5.
taining
Ch. 16. of PERSONS. 454
taining the caufe or fuit of a bad parent, as a good one ;
and is equally compellable h , if of fufficient ability, to main-
tain and provide for a wicked and unnatural progenitor, as
for one who has fhewn the greateft tendernefs and parental
piety (6).
II. WE are next to confider the cafe of illegitimate chil-
dren, or baftards ; with regard to whom let us inquire,
I. Who are baftards. 2. The legal duties of the parents
towards a baftard child. 3. The rights and incapacities
attending fuch baftard children.
i. WHO are baftards. A baftard, by our Englifh laws, is
one that is not only begotten, but born, out of lawful ma-
trimony. The civil and canon laws do not allow a child to
remain a baftard, if the parents afterwards intermarry * : and
herein they differ moft materially from our law ; which,
though not fo ftrit as to require that the child (hall be [
begotten^ yet it makes it an indifpenfable condition, to make it
legitimate, that it (hall be born, after lawful wedlock. And
the reafon of our Englifti law is furely much fuperior to that
of the Roman, if we confider the principal end and defign
of eftablifhing the contract of marriage taken in a civil
light j abftractedly from any religious view, which has
nothing to do with the legitimacy or illegitimacy of the chil-
dren. The main end and defign of marriage therefore being
to Stat. 43 Eliz. c. 2. ' Infl. 1. 10. 13. Deeret. 1. 4. t.ij.e.l.
(6) The words of the ftatute are, " the father and grandfather,
" mother and grandmother, and children of every poor and impo-
" tent perfon," &c. ; from which words, and a former ftatute, Dr.
Burn is inclined to think, even contrary to the opinion of lord
Holt, that a grandchild is not compellable to relieve an indigent
grandfather, but I ihould entertain no doubt but the court of
king's bench would determine the duty to be reciprocal ; and
would conftrue any ambiguous expreffion in favour of the difcharge
of fuch a natural and moral obligation.
to
455 T&e RIGHTS BOOK I.
to afcertain and fix upon fome certain perfon, to whom the
care, the protection, the maintenance, and the education of
the children fliould belong j this end is undoubtedly better
anfwered by legitimating all iflue born after wedlock, than by
legitimating all iflue of the fame parties, even born before
wedlock, fo as wedlock afterwards enfues j i. Becaufe of
the very great uncertainty there will generally be in the
proof that the iflue was generally begotten by the fame man ;
whereas by confining the proof to the birth, and not to the
begetting, our law has rendered it perfectly certain what
child is legitimate, and who is to take care of the child.
2. Becaufe by the Roman law a child may be continued a
baftard, or made legitimate, at the option of the father and
mother by a marriage ex poft fafto ,- thereby opening a door
to many frauds and partialities which by our law are pre-
vented. 3. Becaufe by thofe laws a man may remain a
baftard till forty years of age, and then become legitimate
by the fubfequent marriage of his parents j whereby the
main end of marriage, the protection of infants, is totally
fruftrated. 4. Becaufe this rule of the Roman law admits
of no limitations as to the time or number of baftards fo
to be legitimated j but a dozen of them may, twenty years
after their birth, by the fubfequent marriage of their parents,
be admitted to all the privileges of legitimate children.
This is plainly a great difcouragement to the matrimonial
ftate ; to which one main inducement is ufually not only the
defire of having children^ but alfo the defire of procreating
lawful heirs. Whereas our conftitutions guard againft this
indecency, and at the fame time give fuflicient allowance to
the frailties of human nature. For, if a child be begotten
while the parents are fingle, and they will endeavour to
make an early reparation for the offence, by marrying within
3 a ^ ew montns a f ter our l aw is f indulgent as not to
bailardize the child, if it be born, though not begotten in
lawful wedlock ; for this is an incident that can happen but
once, fince all future children will be begotten, as well as
born, within the rules of honour and civil fociety. Upon
reafons like thefe we may fuppofe the peers to have acted at
the
Ch. 16. of PERSONS. 456
the parliament of Merton, when they refufed to enaft that
children born before marriage fliould be efteemed legi-
timate k .
FROM what has been faid it appears, that all children born
before matrimony are baftards by our law : and fo it is of all
children born fo long after the death of the hufband, that by
the ufual courfe of geftation, they could not be begotten by
him. But this being a matter of fome uncertainty, the law is
not exa& as to a few days l . And this gives occafion to a pro-
ceeding at common law, where a widow is fufpected to
feign herfelf with child, in order to produce a fuppofiti-
tious heir to the eftate : an attempt which the rigour of the
Gothic conftitutions efteemed equivalent to the mod atro-
cious theft, and therefore punifhed with death" 1 . In this
cafe with us the heir prefumptive may have a writ de venire
injpiciendo, to examine whether {he be with child or not (7) ;
and, if (he be, to keep her under proper reftraint, till de-
livered ; which is entirely conformable to the practice of the
civil law : but if the widow be upon due examination
found not pregnant, the prefumptive heir (hall be admitted
to the inheritance, though liable to lofe it again, on the birth
of a child within forty weeks from the death of a hufband p .
k Rogaverunt omnei tfifcofi magnates, Stat. 3O Hen. III. C. 9. See the in-
vt confentirent quod nati ante matri- trodudlion to the great charter, tdit-
mon'tum e/ent legitimi, ftcut ill! qui nati Qxon. IJS9- fit anno I2J3-
funt fo/l matrimonium, qula eeclefia ' Cro. Jac. 541.
talei babet pro legitimis. Et omnes m Stiernhook de jure Gotbor. I. 3. t.J.
comites et bartnet una -voce reffonJirunt Co. Lift. 8. Braft. /. a. c. 3*.
qutd nolunt leges Angliae mutare, quae Ff. 2J. tit. 4- ftr tot.
bucufque ufttatae funt et approbatae. p Britton. c. 66. f age 166.
( 7 ) In a cafe where an eftate was devifed to a male child which
might be born within forty weeks after the death of the teftator
of a married woman, whofe hufband had been long abroad, and if
no fuch child, the eftate was devifed over, this writ de ventre in-
fpiciendo was awarded againft the woman on the petition of the
fnbfequent devifee. 4 Bra. 90. See the proceedings under this
writ. 2 P. Wms. 591.
But
45 6 The RIGHTS BOOK I.
But if a man dies, and his widow foon after marries again,
and a child is born within fuch a time, as that by the courfe
of nature it might have been the child of either hufband ;
[ 457 ] m this ca f e ne is fad to be more than ordinarily legitimate ;
for he may when he arrives to years of difcretion, choofe
which of the fathers he pleafes q . To prevent this, among
other inconveniences, the civil law ordained that no widow
fhould marry infra annum luElus r , a rule which obtained fo
early as the reign of Auguftus ', if not of Romulus ; and
the fame constitution was probably handed down to our
early anceftors from the Romans, during their (lay in this
ifland : for we find it eftabliftied under the Saxon and Danifli
governments l .
As baftards may be borne before the coverture or marriage
ftate is begun, or after it is determined, fo alfo children born
during wedlock may in fome circumftances be baftards. As
if the hufband be out of the kingdom of England, (or, as the
law fomewhat loofely phrafes it, extra quatuor tnaria?) for
above nine months, fo that no accefs to his wife can be pre-
fumed, her iflue during that period (hall be baftards v . But,
generally during the coverture, accefs of the hu(band (hall
be prefumed, unlefs the contrary can be (hewn u ; which is
fuch a negative as can only be proved by (hewing him to be
elfewhere : for the general rule is praefumiter pro legitima-
tione w (8). In a divorce a menfa et tboro, if the wife breeds
1 Co. Litt. 8. decim menfes. LL. Etbclr. A.D. IOCS.
r Cod. 5. 9. 4. LL. Canut. c. 7 1.
* But the year was then only ten Y Co. Litt. 244.
months. Ovid. Faft. 7. 27. u Salk. 123. 3 P.W.276. Stra. 915.
' Sit oatnis vidua fine marlto duo- w j Rep. 98.
( 8 ) It ufed to be held, that, when the hu(band was living with-
in the kingdom, accefs fhould be prefumed, unlefs ttrift proof was
adduced that the hufband and wife were all the time living at a
diftance from each other ; but the courts have relaxed that rule,
and have gone the length of holding that the legitimacy or illegi-
timacy of the child of a married woman, living in a notorious ftate
9 of
Ch. 1 6. of PERSONS. 457
children they are baftards ; for the law will prefume the
hufband and wife conformable to the fentence of feparation,
urilefs accefs be proved : but in a voluntary feparation by
agreement, the law will fuppofe accefs, unlefs the negative
be fhewn x . So alfo if there is an apparent impoflibility of
procreation on the part of the hufband, as if he be only eight
years old, or the like, there the iflue of the wife mall be baf-
tards y . Likewife in cafe of divorce in the fpiritual court
a vinculo matrimonii, all the iflue born during the coverture
are baftards 2 ; becaufe fuch divorce is always upon fome [458 ]
caufe, that rendered the marriage unlawful and null from the
beginning.
2. LET us next fee the duty of parents to their baftard
children by our law; which is principally that of maintenance.
For, though baftards are not looked upon as children to any
civil purpofes, yet the ties of nature, of which maintenance
is one, are not fo eafily diflblved : and they hold indeed as to
* Salk. 123. * Co. Litt. 435,
y Co. Litt. 244.
of adultery, under all the circumftances, is a queftion for a jury
to determine. Q.T.R. 356. and 251.
This principle is now eftablifhed, that where the hufband in the
courfe of nature cannot have been the father of his wife's child,
the child is by law a baftard, and lord Ellenborough has faid, that
from all the authorities I think this conclufion may be drawn,
that circumftances which fhew a natural impoflibility that the
hufband could be the father of the child of which the wife is de-
livered, whether arifing from his being under the age of puberty,
or from his labouring under difability occafioned by natural in-
firmity, or from the length of time elapfed fince his death, are
grounds on which the illegitimacy of the child may be founded.
And, therefore, where it was proved that the hufband had only
accefs one fortnight before the birth of a child, it was held to be
illegitimate ; but the court faid that the cafe where the parents
have married fo recently before the birth of the child that it could
not have been begotten in wedlock, it ftands upon its own pecu-
liar ground, the child in that cafe is legitimated by the recognition
of the hufband. 8 Ea/l, 193.
many
459 The RIGHTS BOOK I.
name by reputation e , though he has none by inheritance.
All other children have their primary fettlement in their
e Co.Litt. 3 .
In the cafe of Homer v. Liddiard, which was decided in the con -
iiftorial court in London in Trinity Term 1799, the circumftances
were thefe :
Mifs Liddiard was a natural child ; her father was dead, and he
by his will had appointed her mother her guardian ; but that cir-
cumftance was immaterial, as a putative father cannot appoint a
guardian. While me was under age (he was married by licence,
with the confent of her mother, to Mr. Horner. The hufband
afterwards inftituted this fuit to have the marriage declared void.
Sir William Scott admitted that baftards were fo far within the
marriage a&, that if the marriage had teen folemnized by licence
with the confent of a guardian of the court of -chancery, the mar-
riage would have 'been valid ; but he decided that neither an ille-
gitimate father nor mother were competent to give confent to a
marriage by licence, and that in the prefent cafe the marriage was
therefore null and void. In delivering his judgment that moft
learned judge was pleafed to fay ; " I obferve that the learned
*' editor of the laft edition of the Commentaries has laid it down,
" that it has been decided, that if a baftard marries under age by
" licence, he muft have the confent of his putative father, guardian,
' or mother, according to the ftatute. If the obfervation is to be
*' underftood according to this arrangement, I cannot agree that it
" has been fo decided. For what guardian can be fo interpofed
" between the natural father and mother ?" If my conftruftion
of the marriagje-a& in note (8 ), p. 438., is erroneous, then the word
guardian ought to have been placed after mother, and not before.
But I meant only to ftate, that it had been decided by the court
of king's bench, that baftards were to be confidercd as legitimate
children under the marriage -aft. As the courts of law, not only
in fettlement cafes, but in all claims of inheritance, profecutions
for polygamy, and wherever the validity of a marriage can be
queftioned, are as competent to conftrue the marriage-aft as the
ecclefiaftical courts, notwithftanding the very able arguments
adduced to fupport the judgment in Horner v. Liddiard, I truft
I do not fpeak irreverently when I predict that the fubjeft will un-
dergo
Ch. 1 6. of PERSONS. 459
father's parifh ; but a baftard in the parifh where born,
for he hath no father f . However, in cafe of fraud, as
if a woman be fent either by order of juftices, or comes
to beg as a vagrant, to a parifh which {he does not be-
long to, and drops her baftard there ; the baftard (hall, in
the firft cafe, be fettled in the parifli from whence (he was
illegally removed s j or, in the latter cafe, in the mother's
own parifh, if the mother be apprehended for her vagrancy' 1 .
Baftards alfo born in any licenfed hofpital for pregnant wo-
men, are fettled in the parifhes to which the mothers belong'.
The incapacity of a baftard confifts principally in this, that
he cannot be heir to any one, neither can he have heirs, but
of his own body; for, being nullius jiliuj, he is therefore of
kin to nobody, and has no anceftor from whom any inherit-
able blood can be derived. A baftard was alfo, in ftri&nefs,
incapable of holy orders ; and though that were difpenfed
with, yet he was utterly disqualified from holding any dig-
f Salk. 4*7- * Stat. 17 Geo. II. c. 5.
Ibid. in. ' Stat. 13 Geo. HI. c. 8z.
dergo much further difcuffion and inveftigation before that judg-
ment will be adopted by the temporal courts. See Dr. Croke's
cafe of Horner <v. Liddiard.
This was the note in the laft edition, and the editor's prediction
has been fo far verified, that the cafe of Prieftly v. Hughes, upon
this very point, fent by the matter of the rolls, has been twice ar-
gued in the court of king's bench, and it is faid that the ftill farther
judgment of the houfe of lords will be taken upon it.
On the firft of March 1809, the chief juftice and two of the
judges certified that they were of opinion that all marriages, whe-
ther of legitimate or illegitimate perfons, were within the provifions
of the marriage-aft, but that the confent of the natural mother to
a marriage by licence of an illegitimate minor is not a fufficient
confent to make a good and lawful marriage ; Mr. Juftice Grofe
was of opinion that the eleventh feftion of the aft did not apply to
illegitimate children, that it was cafus omlflits in the aft, and that
the marriage of an illegitimate minor was not affefted by the ftatute,
and that of confequence, either with or without the confent of the
natural mother, it was good and lawful.
T t 2 nity
459 The RIGHTS BOOK
nity in the church k ; but this do&rine feems now obfolete ;
and in all other refpecls there is no diftinHon between a
baftard and another man ( 1 2). And really any other diftinc-
tion but that of not inheriting, which civil policy renders ne-
ceflary, would, with regard to the innocent offspring of his
parent's crimes, be odious, unjuft, and cruel to the lafl de-
gree : and yet the civil law, fo boafted of for it's equitable
decifions, made baftards in fome cafes incapable even of a
gift from their parents '. A baftard may, laftly, be made
legitimate, and capable of inheriting by the tranfcendent
power of an ac~l of parliament, and not otherwife m ; as was
done in the cafe of John of Gant's baftard children, by a
ftatute of Richard thefecond (13).
* Fortefc. .40. 5 Rep. 58. "> 4 Inft. 36.
(12) Baftards are not favoured in equity as legitimate children.
The court will not fupply the defeft of a furrender of a copyhold
in a conveyance or devife by a father to a natural child, as it will
in favour of a legitimate child. Gtlb. For. Rom. 256. 2 Vef. 582.
And upon a devife by a teftator generally to his children, a court
of juftice cannot decide that an illegitimate child mail take equally
with lawful children. 5 Vef.yui. 530.
See farther concerning baftards, 2 vol. 247. and 506.
(13) The father of an infant legitimate child is entitled to the
cuftody of it ; but the mother of an illegitimate child in preference
to the putative father. 5 Ea/l, 221. iBo/.tf Pull. N. tf. 148.
7 Eaft t 579.
Ch. 17. of PERSONS. 460
CHAPTER THE SEVENTEENTH.
OF GUARDIAN AND WARD.
f T^HE only general private relation now remaining to
-*- be difcuffed, is that of guardian and ward; which
bears a very near refemblance to the laft, and is plainly de-
rived out of it : the guardian being only a temporary parent,
that is, for fo long a time as the ward is an infant, or under
age. In examining this fpecies of relationfhip, I fhall firft
confider the different kinds of guardians, how they are ap-
pointed, and their power and duty j next, the different ages
of perfons, as defined by the law ; and laftly, the privileges
and difabilities of an infant, or one under age and fubjeft to
guardianmip.
T . THE guardian with us performs the office both of the
tutor and curator of the Roman laws ; the former of which
had the charge of the maintenance and education of the
minor, the latter the care of his fortune ; or, according
to the language of the court of chancery, the tutor was
the committee of the perfon, the curator the committee
of the eftate. But this office was frequently united in the
civil law a ; as it is always in our law with regard to
minors, though as to lunatics and idiots it is commonly
kept diftincl.
OF the feveral fpecies of guardians, the firft are guardians [ 461
by nature i viz. the father and (in fome cafes) the mother of
the child. For, if an eftate be left to an infant, the father
is by common law the guardian, and mull account to his
* Ff. a6. 4.1.
T t 3 child
461 The RIGHTS BOOK I.
child for the profits b (i). And with regard to daughters, it
feems by conftru&ion of the (latute 4 & 5 Ph. & Mar. c. 8.
that the father might by deed or will aflign a guardian to
any woman-child under the age of fixteen ; and, if none be
fo afligned, the mother fhall in this cafe be guardian c . There
are alfo guardians for nurture d ; which are, of courfe, the
father or mother, till the infant attains the age of fourteen
years e : and in default of father or mother, the ordinary
ufually afligns fome difcreet perfon to take care of the in-
fant's perfonal eftate, and to provide for his maintenance and
education f . Next are guardians in focage t (an appellation
which will be fully explained in the fecond book of thefe Com-
mentaries,) who are alfo called guardians by the common law.
Thefe take place only when the minor is entitled to fome
eftate in lands, and then by the common law the guardian-
fliip devolves upon his next of kin, to whom the inheritance
cannot poflibly defcend : as, where the eftate defcended from
his father, in this cafe his uncle by the mother's fide cannot
poflibly inherit this eftate, and therefore (hall be theguardian g .
For the law judges it improper to truft the perfon of an
infant in his hands, who may by poflibility become heir to
him ; that there may be no temptation, nor even fufpicion of
temptation, for him to abufe his truft h . The Roman laws
proceed on a quite contrary principle, committing the care
Co. Litt. 88. Lite. 123.
c 3 Rep. 39. h Numjuam cujlodla alicujut de jun
d Co. Lilt. 88. aticui remaned de quo babcatur fuffitio,
e Moor. 738. 3 Rep. 38. quod pojftt -vel -velit aliquod jtii in iffa
* 3 Jones, 90. a Lev. 163. baercJitate dama,e> Glanv. /. 7. c. 11.
( I ) But an executor is not juftified in paying to the father a
legacy left to the child ; and if he pays it to the father, and the
father becomes infolvent, he may be compelled to pay it over
again, i P. Wms. 285:
Where a father leaves a legacy payable to a child at a future day,
though he is filent refpeding the intereft, the court will allow a
reafonable maintenance, as it prefumes that the father intended
his child fhould be maintained, and receive a proper education.
1 1 Vef. jun. i .
of
Ch. 17. gf PERSONS. 461
of the minor to him who is the next to fucceed in the inhe-
ritance, prefuming that the next heir would take the beft
care of an eftate to which he has a profpeft of fucceeding :
and this they boaft to be " fumma providentia \" But in the
mean time they feem to have forgotten, how much it is the
guardian's intereft to remove the incumbrance of his pupil's [ 462 ]
life from that eftate for which he is fuppofed to have fo great
a regard k . And this affords Fortefcue >, and fir Edward
Coke m , an ample opportunity for triumph ; they affirming,
that to commit the cuftody of an infant to him that is
next in fucceflion is " quafi ngnum committere lupo, ad de-
" -uorandum " (2)." Thefe guardians in focage, like thofe for
' Ff. 26. 4. i. ranted by the wife inftitutions of Solon,
k The Roman fatyritt was fully who provided that no one (hould be
aware of this danger, when he puts another's guardian, who was to enjoy
this private prayer into the mouth of the eftate after his death. (Potter's
a fcllilh guardian ; Antiq. b. I. c. 16.) And Charondas,
pupillvm a utinam, qucm proximus another of the Grecian legiflators, di-
Laeres retted thut the inheritance (hould go
Impcllo c xpungatn. Perf. I. 12. to the father's relations, but the edu-
' c. 44. cation of the child to th mother'* ;
m I Inft. 88. that the guardiatilhip and right of fuc-
" See Stat. Hiker*. 14 Hen. 111. ceflion might always be kept diftinct.
This policy of our Englilh law is war- (Petit. Legg. At. I. 6. /. 7.)
( 2 ) Lord chancellor Macclesfield has vehemently condemned
the rule of our law, that the next of kin, to whom the land cannot
defcend, is to be the guardian in focage ; and has declared that ** it
** is not grounded upon reafon, but prevailed in barbarous times,
" before the nation was civilized." 2 P. Wms. 262. But as the
law has placed the cuftody of the infant under the care of one who
is juft as likely to be in a near degree of kindred as the heir ; one
who probably will have the fame affeftion for his perfon, without
having any intereft in even wifhing his death, and therefore re-
moved from all fufpicion, however ill founded ; I cannot but think
there is more wifdom in placing the infant under the guardianmip
of fuch a relation, than under that of the next heir.
A focage guardian can only be where the infant takes lands by
defcent. If he has lands by defcent both ex parte paterna and ex
parte materna, then the next of kki on each fide (hall, refpeftively, be
T t 4 guardians
462 The RIGHTS BOOK I.
nurture, continue only till the minor is fourteen years of
age ; for then, in both cafes, he is prefumed to have difcre-
tion, fo far as to choofe his own guardian. This he may
do unlefs one be appointed by the father, by virtue of the
ftatute 12 Car. II. c. 24. which, confidering the imbecility
of judgment in children of the age of fourteen, and the
abolition of guardianfhip in chivalry (which lafted till the age
of twenty-one, and of which we (hall fpeak hereafter) en-
a6ls, that any father, under age or of full age, may by deed
or will difpofe of the cuflody of his child, either born or un-
born, to any perfon, except a popifh recufant, either in pof-
feflion or reverfion, till fuch child attains the age of one-and-
twenty years (3). Thefe are called guardians, by Jlatute or
tejlamentary guardians. There are alfo fpecial guardians, by
ctijlom 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 fame, pro tempore, as that of a father and child ; and
therefore I fhall not repeat them ; but (hall only add, that
Co. Litt. 88.
guardians by focage of thefe lands ; and of thefe two claimants the
firft occupant fhall retain the cuftody of the infant's perfon. See
Mr. Hargrave's notes to Co. Litt. 88. b. where thefe different
kinds of guardianfliip are with great learning and perfpicuity dif-
criminated and difcufled.
(3) By this ftatute, the father may difpofe of the guardianfhip
of any child unmarried under the age of twenty-one, by deed or
will, executed in the prefence of two or more witneffes, till fuch
child attains the age of twenty-one, or for any lefs time. And the
guardian fo appointed has the tuition of the ward, and the ma-
nagement of his eftate and property.
A father cannot appoint guardians under this ftatute to a natural
child ; but where he has named guardians by his will to an illegi-
timate child, the court of chancery will appoint the fame perfons
guardians, without any reference to a mailer for his approbation.
2 Pro. 583.
the
Ch.i;. ^PERSONS. 463
the guardian, when the ward comes of age, is bound to give
him an account of all that he has tranfafted on his behalf,
and muft anfwer for all lofles by his wilful default or negli-
gence. In order therefore to prevent difagreeable contefts
with young gentlemen, it has become a practice for many
guardians, of large eftates efpecially, to indemnify themfelves
by applying to the court of chancery, adding under it's di-
reclion, and accounting annually before the officers of that
court. For the lord chancellor is, by right derived from the
crown, the general and fupreme guardian o all infants, as
well as idiots and lunatics ; that is, of all fuch perfons as
have not difcretion enough to manage their own concerns.
In cafe, therefore, any guardian abufes his truft, the court
will check and punifti him ; nay fometimes will pro-
ceed to the removal of him, and appoint another in his
Head P.
2. LET us next confider the ward or perfon within age,
for whofe afliftance and fupport thefe guardians are confti-
tuted by law ; or who it is, that is faid to be within age.
The ages of male and female are different for different pur-
pofes. A male at twelve years old may take the oath of al-
legiance ; at fourteen is at years of difcretion, and therefore
may confent or difagree to marriage, may choofe his guar-
dian, and, if his difcretion be actually proved, may make
his teftament of his perfonal eftate ; at feventeen may be an
executor ; and at twenty-one is at his own difpofal, and may
aliene his lands, goods, and chattels. A female alfo ztfeven
years of age may be betrothed, or given in marriage j at
nine is entitled to dower ; at twelve is at years of maturity,
and therefore may confent or difagree to marriage ; and, if
proved to have fufficient difcretion, may bequeath her per-
fonal eftate ; at fourteen is at years of legal difcretion, and
may choofe a guardian ; at feventeen may be executrix ; and
at twenty-one may difpofe of herfelf and her lands. So that
full age in male or female is twenty-one years, which age is
completed on the day preceding the anniverfary of a perfon's
i' I Sid. 424. i P. Will. 703,
birth ;
463 Xhe RIGHTS BOOK I.
birth'' (4); who till that time is an infant, and fo ftyled in law.
Among the antient Greeks and Romans women were never
C 464 ] of age, but fubje<t to perpetual guardian(hip r , unlefs when
married, " niji convenient in manum viri :" and, when that
perpetual tutelage wore away in procefs of time, we find that,
in females as well as males, full age was not till twenty-five
years 8 . Thus, by the conftitution of different kingdoms,
this period, which is merely arbitrary, and juris pofitivi, is
fixed at different times. Scotland agrees with England in
this point ; (both probably copying from the old Saxon con-
ftitutions on the continent, which extended the age of mi-
nority " ad annum uigefimum primum, et eo ufque juvenes fub
tutelam reponunt * ;") but in Naples they are of full age at
eighteen ; in France, with regard to marriage, not till thirty .-
and in Holland at twenty-five (5).
3. INFANTS have various privileges, and various difabi-
lities : but their very difabilities are privileges -, in order to
iecure them from hurting themfelves by their own improvi-
" Salk. 44. 6aj. Lord Raym. 480. f Stiernhook. de jure Sueonum, I. ^.
1096. Toder v. Sanlam. Dom.Proc. c.i. This is alfo the period when the
27 Feb. 1775. king, as well as the fubjell, arrives at
* Pott. Atitiq. b. 4. c. XI. CK, pro full age in modern Sweden. Mod. Un.
Muren. 12. 1 1 lit. xxxiii. 22O.
' 7*1.1.13.1.
(4) If he is born on the ift of January, he is of age to do any
legal aft on the morning of the laft day of December, though he
may not have lived twenty-one years by nearly forty -eight hours :
the reafon affigned is, that in law there is no fraction of a day ; and
if the birth were on the firft fecond of one day, and the aft on the laft
fecond of the other, then twenty-one years would be complete ;
and in the law it is the fame whether a thing is done upon one
moment of the day or on another.
(5) Some parents and teftators give their eilates to young per-
fons, but with a condition or reftriftion that they (hall not have
pofleflion until they are 22 or 25.
The praftice is unwifc, becaufe at the age of 21 they are com-
petent to convey thofe contingent cftates, and probably upon
much more injurious terms than if they were in poifefiion.
dent
Ch.i/. of PERSONS. 4 6 4
dent als. An infant cannot be fued but under the protec-
tion, and joining the name, of his guardian ; for he is to de-
fend him againft all attacks as well by law as otherwife n : but
he may fue either by his guardian, or prochein amy t his next
friend who is not his guardian. This prochein amy may be
any perfon who will undertake the infant's caufe ; and it
frequently happens, that an infant, by his prochein amy, in-
ftitutes a fuit in equity againft a fraudulent guardian. In
criminal cafes, an infant of the age of fourteen years may be
capitally punifhed for any capital offence w j but under the
age of f even he cannot. The period between feven and four-
teen is fubjeft to much uncertainty : for the infant mail,
generally fpeaking, be judged prima facie innocent : yet
if he was doli capax y and could difcern between good and
evil at the time of the offence committed, he may be con-
victed, and undergo judgment and execution of death, though
he hath not attained to years of puberty or difcretion*. And
fir Matthew Hale gives us two inftances, one of a girl of [ 465 3
thirteen, who was burned for killing her miftrefs ; another
of a boy ftill younger, that had killed his companion and
hid himfelf, who was hanged ; for it appeared by his hiding
that he knew he had done wrong, and could difcern between
good and evil : and in fuch cafes the maxim of law is, that
malitia fupplet aetatem (6). So alfo, in much more modern
times, a boy of ten years old, who was guilty of a heinous
murder, was held a proper fubjecl for capital puniihment,
by the opinion of all the judges y .
WITH regard to eftates and civil property, an infant hath
many privileges, which will be better underftood when we
u Co. Litt.i35. I Hal. P. C.a6.
w I Hal. P. C. 25. ' Foft?r, 71.
(6) In fuch cafes, I conceive that juftice tempered with mercy
would inquire whether the malice is of fuch a hardened degree
that a {lighter puuiflimcnt might not eradicate or correct it, and
whether a milder fcntence might not be fufficicnt to deter other
boys of the fame age from a repetition of the crime.
7 come
465 The RIGHTS BOOK I.
come to treat more particularly of thofe matters ; but this
may be faid in general, that an infant (hall lofe nothing by
non-claim or neglect of demanding his right ; nor fliall any
other laches or negligence be imputed to an infant, except in
fome very particular cafes.
IT is generally true, that an infant can neither aliene his
lands, nor do any legal aft, nor make a deed, nor indeed any
manner of contract, that will bind him. But ftill to all thefe
rules there are fome exceptions : part of which were juft now
mentioned in reckoning up the different capacities which they
afTume at different ages : and there are others, a few of which
it may not be improper to recite, as a general fpecimen of the
whole. And, firft, it is true, that infants cannot aliene their
eftates : but infant truftees, or mortgagees, are enabled to
convey, under the direction of the court of chancery or ex-
chequer, or other courts of equity, the eftates they hold in
truft or mortgage, to fuch perfon as the court fhall appoint z .
Alfo it is generally true, that an infant can do no legal aft :
yet an infant, who has an advowfon, may prefent to the
benefice when it becomes void . For the law in this cafe
difpenfes with one rule, in order to maintain others of far
[ 466 ] greater confequence : it permits an infant to prefent a clerk
(who, if unfit, may be rejected by the bifhop) rather than
either fuffer the church to be unferved till he comes of age,
or permit the infant to be debarred of his right by lapfe to
the bifhop. An infant may alfo purchafe lands, but his pur-
chafe is incomplete : for when he comes to age, he may either
agree or difagree to it, as he thinks prudent or proper, without
alleging any reafon ; and fo may his heirs after him, if he dies
without having completed his agreement b . It is, farther,
generally true, that an infant, under twenty-one, can make
no deed but what is afterwards voidable ; yet in fome cafes c
he may bind himfelf apprentice by deed indented or inden-
tures for feven years ; and d he may by deed or will appoint
2 Star. 7 Ann. c. 19. 4 Gco. III. c. 16. c Stat. 5 Eliz. 0.4. 43 Eliz. c. 2.
Co. Liu. 172. Cro. Car. 1 7y.
b UiJ.2. d titat.i2Car.il. c. 24.
4 a guardian
Ch. 17. . of PERSONS. 466
a guardian to his children, if he has any. Laftly, it is gene-
rally true, that an infant can make no other contract that will
bind him : yet he may bind himfelf to pay for his neceflary
meat, drink, apparel, phyfic, and fuch other neceflaries (7) ;
and likewife for his good teaching and inftrution, whereby
he may profit himfelf afterwards e . And thus much, at pre-
fent, for the privileges and difabilities of infants.
e Co. Litt. 172.
(7) It has been held, that an infant is not liable to repay money
lent to him, although he mould lay it out in neceflaries. i Sail.
386. Nor is he bound to pay for goods bought to trade with.
Bull. N. P. 154. But debts contracted during infancy are a good
confideration to fupport a promife made to pay them when a per-
fon is of full age. Infancy may be given in evidence upon the
general iflue, or it may be pleaded. Bull. 152.
And where the defendant pleads infancy, and the plaintiff replies
that the defendant confirmed the promife or contraft when he was
of age, the plaintiff need only prove the promife, and the
defendant muft difcharge himfelf by proof of the infancy.
x T. R. 648.
4 6 7 The RIGKTS BOOK I.
CHAPTER THE EIGHTEENTH,
OF CORPORATIONS.
VI7E have hitherto confidered perfons in their natural
capacities, and have treated of their rights and du-
ties. But, as all perfonal rights die with the perfon ; and,
as the neceflary forms of inverting a feries of individuals, one
after another, with.the fame identical rights, would be very
inconvenient, if not impracticable ; it has been found ne-
ceflary, when it is for the advantage of the. public to have any
particular rights kept on foot and continued, to conflitutc
artificial perfons, who may maintain a perpetual fucceflion,
and enjoy a kind of legal immortality.
THESE artificial perfons are called bodies politic, bodies
corporate, (corpora corporata] or corporations ; of which there
is a great variety fubfifting, for the advancement of religion,
of learning, and of commerce ; in order to preferve entire
and for ever thofe rights and immunities, which, if they
were granted only to thofe individuals of which the body
corporate is compofed, would upon their death be utterly
loft and extinft. To mew the advantages of thefe incorpor-
ations, let us confider the cafe of a college in either of our
univerfities, founded adjludendum et crandum y for the encou-
ragement and fupport of religion and learning. If this were
a mere voluntary aflembly, the individuals which compofe it
might indeed read, pray, ftudy, and perform fcholallic exer-
cifes together, fo long as they could agree to do fo : but they
could
Ch. 1 8. of PERSONS. 4 68
could neither frame, nor receive any laws or rules of their
conduct; none at lead, which would have any binding force,
for want of a coercive power to create a fufficient obligation.
Neither could they be capable of retaining any privileges or
immunities : for if fuch privileges be attacked, which of all
this unconnected afiembly has the right, or ability, to de-
fend them ? And, when they are difperfed by death or other-
wife, how (hall they transfer thefe advantages to another fet
of iludents, equally unconnected as themfelves? So alfo with
regard toholdingeftates or other property, if land be granted
for the purpofes of religion or learning to twenty individuals
not incorporated, there is no legal way of continuing the
property to any other perfons for the fame purpofes, but by
endlefs conveyances from one to the other, as often as the
hands are changed. But when they are confolidated and
united into a corporation, they and their fuccefibrs are then
confidered as one perfon in law : as cne perfon they have
one will, which is collected from the fenfe of the majority of
the individuals : this one will may eftablifh rules and orders
for the regulation of the whole, which are a fort of munici-
pal laws of this little republic ; or rules and flatutes may be
prefcribed to it at it's creation, which are then in the place
of natural laws : the privileges and immunities, the eilates
and pofleffions of the corporation, when once veiled in them,
will be for ever veiled, without any new conveyance, to new
fucceflions; for all the individual members that have exiiled
from the foundation to the prefent time, or that fhall ever
hereafter exift, are but one perfon in law, a perfon that never
dies : in like manner as the river Thames is ftill the fame
river, though the parts which compofe it are changing every
inftant.
THE honour of originally inventing thefe political confli-
tutions entirely belongs to the Romans. They were intnv
duced, as Plutarch fays, by Numa ; who finding, upon his
acceflion, the city torn to pieces by the two rival factions of
Sabines and Romans, thought it a prudent and politic mea-
fure to fubdivide thefe two into many fmaller ones, by infti-
tuting
469 The RIGHTS BOOK I.
tuting feparate focieties of every manual trade and profefiion.
They were afterwards much confidered by the civil law a , in
which they were called univefftiates t as forming one whole
out of many individuals ; or collegia, from being gathered
together j they were adopted alfo by the canon law, for the
maintenance of ecclefiaftical difcipline : and from them our
fpiritual corporations are derived. But our laws have con-
fiderably refined and improved upon the invention, according
to the ufual genius of the Englifli nation ; particularly with
regard to fole corporations, confiding of one perfon only,
of which the Roman lawyers had no notion; their maxim
being, that " tres faciunt collegium V Though they held,
that if a corporation, originally confiding of three perfons, be
reduced to one, " ft univerfttas ad unum redit," it may ftill
fubfift as a corporation, " et Jlet nomen univerfitatis c ."
BEFORE we proceed to treat of the feveral incidents of cor-
porations, as regarded by the laws of England, let us firfl
take a view of the feveral forts of them ; and then we (hall
be better enabled to apprehend their refpe&ive qualities.
THE firft divifion of corporation is into aggregate and fole.
Corporations aggregate confift of many perfons united to-
gether into one fociety, and are kept up by a perpetual fuccef-
fion of members, fo as to continue for ever ; of which kind
are the mayor and commonalty of a city, the head and fellows
of a college, the dean and chapter of a cathedral church.
Corporations fole confift of one perfon only and his fucceflbrs,
in fome particular ftation, who are incorporated by law,
in order to give them fome legal capacities and advantages,
particularly that of perpetuity, which in their natural perfons
they could not have had. In this fenfe the king is a fole
corporation d ; fo is a bifhop; fo are fome deans, and preben-
daries, diftindl from their feveral chapters ; and fo is every
parfon and vicar. And the neceflity, or at leaft ufe, of this
inftitution will be very apparent, if we confider the cafe of
Ff.l.3. t. 4. per tot. Ff. 3, 4. 7.
b Ff. 50. 16. 8. d Co. Litt. 43-
a parfon
Ch. 1 8. of PERSONS. 470
a parfon of a church. At the original endowment of parifli
churches, the freehold of the church, the church-yard, the
paribnage-houfe, the glebe, and the tithes of the parim, were
vefted in the then parfon by the bounty of the donor, as a
temporal recompence to him for his fpiritual care of the in-
habitants, and with intent that the fame emoluments mould
ever afterwards continue as a recompence for the fame care.
But how was this to be effected ? The freehold was vefted
in the parfon ; and if we fuppofe it vefted in his natural ca-
pacity, on his death it might defcend to his heir, and would
be liable to his debts and incumbrances: or, at beft, the heir
might be compellable, at fome trouble and expence, to con-
vey thefe rights to the fucceeding incumbent. The law there-
fore has wifely ordained, that the parfon, quatenus parfon
(hall never die, any more than the king : by making him and
his fucceflbrs a corporation. By which means all the ori-
ginal rights of the parfonage are preferved entire to the fuc-
ceflbr : for the prefent incumbent, and his predeceflbr who
lived feven centuries ago, are in law one and the fame perfon ;
and what was given to the one was given to the other alfo.
ANOTHER divifion of incorporations, either fole or aggre-
gate, is into ecclefiajlical and lay. Ecclefiaftical corporations
are where the members that compofe it are entirely fpiritual
perfons ; fuch as bifhops ; certain deans, and prebendaries ;
all archdeacons, parfons, and vicars ; which are fole corpo-
rations ; deans and chapters at prefent, and formerly prior
and convent, abbot and monks, and the like, bodies aggregate.
Thefe are elected for the furtherance of religion, and perpe-
tuating the rights of the church. Lay corporations are of
two forts, civil and eleemofynary. The civil are fuch as are
erected for a variety of temporal purpofes. The king,
for inftance, is made a corporation to prevent in general
the poflibility of an interregnum^ or vacancy of the throne,
and to preferve the pofieflions of the crown entire j for imme-
diately upon the demife of one king, his fucceflbr is, as we have
formerly feen, in full pofieflion of the regal rights and dignity.
Other lay corporations are erected for the good government of
VOL. I. U u a town
47 1 The RIGHTS BOOK I.
a town or particular diftricl:, as a mayor and commonalty,
bailiff and burgefles, or the like; fome for the advancement
and regulation of manufactures and commerce; as the trading
Companies of London, and other towns : and fome for the
better carrying on of divers fpecial purpofes ; as churchwar-
dens, for confervation of the goods of the parifli ; the college
of phyficians and company of furgeons in London, for the
improvement of the medical fcience ; the royal fociety for the
advancement of natural knowledge ; and the fociety of anti-
quaries for promoting the ftudy of antiquities. And among
thefe I am inclined to think the general corporate bodies of
the univerfities of Oxford and Cambridge muft be ranked :
for it is clear they are not fpiritual or ecclefiaftical corpor-
ations, being compofed of more laymen than clergy : neither
are they eleemofynary foundations, though ftipends are an-
nexed to particular magiftrates and profeflbrs, any more than
other corporations where the acting officers have Handing
falaries ; for thefe are rewards pro opsgget labore, not chari-
table donations only, fince every ftipend is preceded by fer-
vice and duty; they feem therefore to be merely civil corpor-
ations (i). The eleemofynary fort are fuch as are conftituted
for the perpetual diftribution of the free alms, or bounty, of
the founder of them to fuch perfons as he has directed. Of
this kind are all hofpitals for the maintenance of the poor,
fick, and impotent : and all colleges, both in our univerf-
ties and out e of them : which colleges, are founded for two
purpofes; i . For the promotion of piety and learning by pro-
per regulations and ordinances. 2. For imparting affiftance
to the members of thofe bodies, in order to enable them to
profecute their devotion and ftudies with greater eafe and af-
fiduity. And all thefe eleemofynary corporations are, ftriclly
fpeaking, lay and not ecclefiaftical, even though compofed
of ecclefiaftical perfons f , and although they in fome things
e Such as at Manchefter, Eton, Winchefter, &c.
f I Lord Raym. 6.
(i ) It is now fully eftablifhed that each univerfity is a civil cor-
poration. 3 Burr. 1656.
partake
Ch. 18. ^PERSONS. 471
partake of the nature, privileges, and reftriclions of ecclefi-
aftical bodies (2).
loartfcv $ ,~.\j ,- I-. ^,'i f -: !plti> i if**' u-.--Lft.
HAVING thus marflialled the feveral fpecies of corpor- [ 472 ]
ations, let us next proceed to confider, i. How corporations,
in general may be created. 2. What are their powers, ca-
pacities, and incapacities. 3. How corporations are vifited.
And, 4. How they may be diflblved.
I. CORPORATIONS, by the civil law, feem to have been
created by the mere aft, and voluntary aflbciation of their
members j provided fuch convention was not contrary to law,
for then it was illicitum collegium g . It does not appear that
the prince's confent was neceflary to be actually given to the
foundation of them ; but merely that the original founders of
thefe voluntary and friendly focieties (for they were little more
than fuch) mould not eftablim any meetings in oppofition to
the laws of the ftate.
BUT, with us in England, the king's confent is abfolutely
neceflary to the erection of any corporation, either impliedly
or exprefsly given 11 . The king's implied confent is to be found
in corporations which exift by force of the common laiv, to
which our former kings are fuppofed to have given their con-
currence ; common law being nothing elfe than cuftom,
arifing from the univerfal agreement of the whole commu-
nity. Of this fort are the king himfelf, all biftiops, parfons,
vicars, churchwardens, and fome others ; who by common
8 //!47. az. i. Nequifocictas,ncquc tinent, and endowed with m.iny valu-
collcgium, ncque bujufmtidl corpus faf- able privileges, about the eleventh cen-
fiai omnibus babere conceditur ; nam et le- tury : (Robertf. Cha. V. i. 30.) to which
gibut, ctfenatus confultis, et frincifali- the confent of the feodal fovereign was
but ctnjlitutionibus 10. res coercitiir. abfolutely neceflary, as many of his pre-
Ff. 3. 4. i. rogatives and revenues were thereby
h Cities and towns were firft erected confiderably diminished,
into corporate communities on the con-
(2) They are lay corporations, becaufe they are not fubjeft to
the jurifdiaion of the ecclefiallical courts, or to the vifitations of
the ordinary or diocefan in their fpiritual characters.
U u 2 law
472 The RIGHTS BOOK I.
law have ever been held (as far as our books can fhew us)
to have been corporations, virtute officil : and this incorpor-
ation is fo infeparably annexed to their offices, that we cannot
frame a complete legal idea of any of thefe perfons, but we
[ 473 3 mu ft alfo have an idea of a corporation, capable to tranfmit
his rights to his fucceflbrs, at the fame time. Another
method of implication, whereby the king's confent is pre-
fumed, is as to all corporations by prefcription^ fuch as the
city of London, and many others h , which have exifted as
corporations, time whereof the memory of man runneth not
to the contrary ; and therefore are looked upon in law to be
well created. For though the members thereof can fhew no
legal charter of incorporation, yet in cafes of fuch high
antiquity the law prefumes there once was one ; and that,
by the variety of accidents which a length of time may pro-
duce, the charter is loft or deftroyed. The methods by
which the king's confent is exprefsly given, are either by
aft of parliament or charter. By at of parliament, of
which the royal affent is a necefl'ary ingredient, corporations
may undoubtedly be created l : but it is obfervable, that
(till of late years) moft of thofe ftatutes, which are ufually
cited as having created corporations, do either confirm fuch
as have been before created by the king ; as in the cafe of
the college of phyficians erected by charter 10 Hen. VIII. k ,
which charter was afterwards confirmed in parliament * ;
or, they permit the king to erecl: a corporation infuturo with
fuch and fuch powers; as is the cafe of the bank of Eng-
land" 1 , and the fociety of the Britifh fifhery". So that the
immediate creative at was ufually performed by the king
alone, in virtue of his royal prerogative .
ALL the other methods, therefore, whereby corporations
exift, by common law, by prefcription, and by aft of par-
liament, are for the moft part reducible to this of the king's
letters patent, or charter of incorporation. The king's crea-
11 a Inft. 330. m Stat. 5 & 6 W. & M. c. ao.
'ioRep.29. Roll. Abr.jia. " Stat. 13 Geo. II, c.4.
k 8 Rep. 114. See page 273.
1 14 & 15 Hen. VIII. c. 5.
tion
Ch. 1 8. I/PERSONS. 473
tion may be performed by the words " creamus, trigimus,
fundamusy incorporamus" or the like. Nay it is held, that if
the king grants to a fet of men to have gildam mercatoriam, [ 474 }
a mercantile meeting or aflembly P, this is alone fufficient to
incorporate and eftablifli them for ever .
THE parliament, we obferved, by it's abfolute and tran-
fcendent authority, may perform this or any other act what-
foever : and actually did perform it to a great extent, by fta-
tute 39 Eliz. c. 5. which incorporated all hofpitals and houfes
of correction founded by charitable perfons, without farther
trouble : and the fame has been done in other cafes of chari-
table foundations. But otherwife it has not formerly been
ufual thus to intrench upon the prerogative of the crown,
and the king may prevent it when he pleafes. And, in the
particular infbance before mentioned, it was done, as fir
Edward Coke obferves r , to avoid the charges of incorpor-
ation and licences of mortmain in fmall benefactions ; which
in his days were grown fo great, that they difcouraged many
men from undertaking thefe pious and charitable works.
THE king (it is faid) may grant to a fubject the power of
erecting corporations % though the contrary was formerly
held * j that is, he may permit the fubject to name the per-
fons and powers of the corporation at his pleafure ^ but it is
really the king that erects, and the fubject is but the inftru-
ment : for though none but the king can make a corporation,
yet qui facit per alium facit per fe u . In this manner the
chancellor of the univerfity of Oxford has power by charter
to erect corporations ; and has actually often exerted it, in
the erection of feveral matriculated companies, now fubfift-
ing, of tradefmen fubfervient to the ftudents.
P Gild fignified among the Saxons a 10 Rep. 30. I Roll. Abr. 513.
fraternity, derived from the verb jiban r a Inft. yaz.
to pay, becaufe every man paid his ' Bro. Abr. tit. Prerog. 53. Viner.
(hare towards the expenfes of the com- Prerog. 88. pi. 16.
munity. And hence their place of ' Yearbook, * Hen. VII. 13.
meeting is frequently called the Gild u IO Rep. 33.
or Guild ball.
U u 3 WHEN
474 Tlx RIGHTS BOOK I.
WHEN a corporation is erected, a name muft be given to
it ; and by that name alone it muft fue and be fued, and do
C475 3 all legal acts ; though a very minute variation therein is not
material T . Such name is the very being of it's conftitution ;
and, though it is the will of the king that erects the corpor-^
ation, yet the name is the knot of it's combination, without
which it could not perform it's corporate fund~Uons w . The
name of incorporation, fays fir Edward Coke, is as a proper
name, or name of baptifm ; and therefore when a private
founder gives his college or hofpital a name, he does it only
as a godfather ; and by that fame name the king baptizes the
incorporation x (3).
II. AFTER a corporation is fo formed and named, it ac-
quires many powers, rights, capacities, and incapacities,
which we are next to confider. Some of thefe are necefTarily
and infeparably incident to every corporation ; which inci-
dents, as foon as a corporation is duly erected, are tacitly
annexed of courfe y . As, i. To have perpetual fucceflion.
This is the very end of it's incorporation : for there cannot
be a fucceflion for ever without an incorporation z j and there-
fore all aggregate corporations have a power neceflarily im-
plied of electing members in the room of fuch as go off a (4).
v 10 Rep iaa. y Hid. 30. Hob. an.
w Gilb. Hid. C. P. 182. * 10 Rep. 26.
x 10 Rep. 28. a i Roll. Abr. 514.
_ . . 1
( 3 ) But it may have a name only by implication ; as if the king
mould incorporate the inhabitants of Dale with power to choofe a
mayor annually, though no name be given, yet it is a good corpor-
ation by the name of mayor and commonalty, i Sail. 191. And
it may change it's name, as corporations frequently do in new char-
ters, and it ftill retains it's former rights and privileges. 4 Co. 87.
(4) And where the mode of election is not prefcribed by the
charter, or eftablifhed by immemorial ufage, it may be regulated
by a by-law. 3 T. R. 189. When the cleft or s are defcribed in the
charter, their number, in order to avoid riot and confufion, may
be reftrained by a by-law ; but a by-law cannot ftrike off an inte-
gral part, neither can it narrow the number of perfons out of whom
the
Ch. 1-8. of PERSONS. 475
2. To fue or be fuetl, implead or be impleaded, grant or fe-
ceive, by it's corporate name, and do all other atts as natural
perfons may. 3. To purchafe lands, and hold them, for the
benefit of themfelves and their fucceflbrs ; which two are
confequential to the former (5), 4. To have common feal.
For a corporation, being an invifible body, cannot manifeft
it's intention by any perfonal acl or oral difcourfe : it there-
fore acts and fpeaks only by it's common feal. For, though
the particular members may exprefs their private confents to
any acl:, by words or figning their names, yet this does not
bind the corporation : it is the fixing of the feal, and that only,
which unites the feveral aflents of the individuals who com-
pofe the community, and makes one joint aflent of the whole b .
5. To make by-laws or private ftatutes for the better g&vern-
ment of the corporation ; which are binding upon themfelves, [ 476 ]
unlefs contrary to the laws of the land, and then they are
void. This is alfo included by law in the very aft of incor-
poration c : for as natural reafon is given to the natural body
for the governing it, fo by-laws or ftatutes are a fort of poli-
Dav. 44. 48. c Hob. 311.
the election is to be made. 3 Burr. 1833. But the number of
the electors of members of parliament cannot be diminimed by a
by-law. 4 In/I. 48.
In the cafe of the borough of Winchelfea in the time of Jac. I.
the houfe of commons refolved, " that, albeit the faid town might
" make divers conftitutions and by-laws concerning their other
" affairs or government, it cannot alter by a decree or by-law the
" manner or right of elections of barons or burgefles to the par-
" liament, but fuch by-laws are to that purpofe utterly void :
" becaufe the commonwealth being interefted in the freedom and
confequence of fuch elections, the fame cannot be reftrained in
" any fort by any private ordinance whatsoever." Glanv. Rep.
p. 18.
(5) All corporations muft have a licence from the king to en-
able them to purchafe and hold lands'in mortmain. Co. Lilt. 2.
7 & 8 W. III. c. 37.
U u 4 tical
476 The RIGHTS BOOK I.
tical reafon to govern the body politic (6). And this right
of making by-laws for their own government, not contrary
to the law of the land, was allowed by the law of the twelve
tables of Rome d . But no trading company is, with us, al-
lowed to make by-laws which may affect the king's prero-
gative, or the common profit of the people, under penalty of
4O/. unlefs they be approved by the chancellor, treafurer,
and chief juftices, or the judges of aflife in their circuits :
and, even though they be fo approved, ftill, if contrary to
law, they are void 6 . Thefe five powers are inseparably
incident to every corporation, at lead to every corporation
aggregate : for two of them, though they may be pra&ifed,
yet are very unneceflary to a corporation fole ; viz. to have
a corporate feal to teftify his fole aflent, and to make ftatutes
, for the regulation of his own conduct.
THERE are alfo certain privileges and difabilities that at-
tend an aggregate corporation, and are not applicable to fuch
as are fole : the reafon of them ceafing, and of courfe the
law. It muft always appear by attorney ; for it cannot ap-
pear in perfon, being, as fir Edward Coke fays f , invifible,
and exifting only in intendment and confideration of law. It
can neither maintain, nor be made defendant to, an action of
battery or fuch like perfonal injuries: for a corporation can
neither beat nor be beaten, in it's body politic *. A corpor-
ation cannot commit treafon or felony, or other crime, in
it's corporate capacity h : though it's members may in their
diftincl individual capacities '. Neither is it capable of fufter-
d Sodalc t legtm quam volent, dum ne h IO Rep. 32.
quid ex fublica legt corrumfant, ftbi ' The civil l.iw alfo ordnins that, for
firunto. the mifbehariour of a body corporate,
' Stat. 19 Hen. VII. c. 7. IT. Rep. 54. the direflors only fliall he anfwerable
f 10 Rep. 31. in their perfonal capacities, ff. 4. 3.
* Bro. Abr. tit. Ccrporation,(>Z. J 5-
(6) Where the power of making by-laws is in the body at
large, they may delegate their right to a feleft body who thus
become the reprefentative of the whole community. Ld. Mans-
fold, 3 Burr. 1837.
ing
Ch. 18. f PERSONS.
477
ing a traitor's or felon's punifhment, for it is not liable to
corporal penalties, nor to attainder, forfeiture, or corruption
of blood. It cannot be executor or adminiftrator, or perform
any perfonal duties ; for it cannot take an oath for the due
execution of the office. It cannot be feifed of lands to the
ufe of another j ; for fuch kind of confidence is foreign to the
end of it's inftitution. Neither can it be committed to pri-
fon k : for it's exiftence being ideal, no man can apprehend
or arreft it. And therefore alfo it cannot be outlawed ; for
outlawry always fuppofes a precedent right of arrefting, which
has been defeated by the parties abfconding, and that alfo a
corporation cannot do : for which reafons the proceedings to
compel a corporation to appear to any fuit by attorney are
always by diflrefs on their lands and goods l . Neither can a
corporation be excommunicated : for it has no foul, as is
gravely obferved by fir Edward Coke m : and therefore alfo
it is not liable to be fummoned into the ecclefiaftical courts
upon any account ; for thofe courts act only pro falute ani-
tnae, and their fentences can only be enforced by fpiritual
cenfures : a confideration which, carried to it's full extent,
would alone demonftrate the impropriety of thefe courts in-
terfering in any temporal rights whatfoever.
THERE are alfo other incidents and powers, which belong
to fome fort of corporations, and not to others. An aggre-
gate corporation may take goods and chattels for the benefit
of themfelves and their fucceflbrs, but a fole corporation can-
not " : for fuch moveable property is liable to be loft or im-
bezzled, and would raife a multitude of difputes between the
fucceffor and executor ; which the law is careful to avoid (7).
i Bro. Abr. tit. Feoffm. at. ufei. 40. ' Bro. Abr. tit. Corf oration. 1 1 0t-
Bacon of ufes. 347. latvry. ^^.
k Plowd. 538. m ^ Rep- 3-
n Co. Litt. 46.
(7) Mr. Hargrave confiders the jewels of the crown rather as
heir-looms, than an inaance of chattels palling in fucceffion in a
fole corporation; Co. Litt. 9. n. I.
In
477 The RIGHTS BOOK 1.
In ecclefiaftical and eleemofynary foundations, the king or the
founder may give them rules, laws, ftatutes, and ordinances,
which they are bound to obferve : but corporations merely
[ 478 ] lay, conftituted for civil purpofes, are fubject to no particu-
lar ftatutes (8) ? but to the common law, and to their own
by-laws, not contrary to the laws of the realm . Aggregate
corporations alfo, that have by their conftitution a head, as
a dean, warden, mafter, or the like, cannot do any acts
during the vacancy of the headfhip, except only appointing
another : neither are they then capable of receiving a grant ;
for fuch corporation is incomplete without a head ''. But there
may be a corporation aggregate conftituted without a head 1 j
as the collegiate church of Southwell in Nottinghamfhire,
which confifts only of prebendaries ; and the governors of
the charter-houfe, London, who have no prefident or fupe-
rior, but are all of equal authority. In aggregate corpor-
ations alfo, the act of the major part is efteemed the act of
the whole r . By the civil law this major part muft have con-
fifted of two-thirds of the whole j elfe no act could be per-
formed ' j which perhaps may be one reafon why they re-
quired three at leaft to make a corporation. But, with us, any
majority is fufficient to determine the act of the whole body.
And whereas, notwithstanding the law flood thus, fome
founders of corporations had made ftatutes in derogation of
the common law, making very frequently the unanimous
aflent of the fociety to be neceflary to any corporate act ;
(which king Henry VIII. found to be a great obstruction to
his projected fcheme of obtaining a furrender of the lands of
eqclefialtjcal corporations,) it was therefore enacted by ftatute
33 Hen. VIII. c. 27. that all private ftatutes (hall be utterly
void, whereby any grant or election, made by the head, with
the concurrence of the major part of the body, is liable to
Lord Raym. 8. r Bro. Abr. tit. Corporation. 31. 34.
P Co. Litt. 263, 264. s Ff. 3, 4. 3.
1 10 Rep. 30.
(8) Their charters or immemorial uiagcs, which are equivalent
to the exprefs provilious of a charter > arc iu fact their ftatutes.
be
Ch. 1 8. of PERSONS. 47 &
be obftrucled by any one or more, being in the minority ; bnt
this ftatute extends not to any negative or neceffary voice
given by the founder to the head of any fuch fociety (9).
WE before obferved that it was incident to every corpor-
ation to have a capacity to purchafe lands for themfelves and
fucceflbrs ; and this is regularly true at the common law '. [ 479 ]
But they are excepted out of the ftatute of wills n : fo that no
devife of lands to a corporation by will is good : except for
charitable ufes, by ftatute 43 Eliz. c. 4. w : which exception is
again greatly narrowed by the ftatute 9 Geo. II. c. 36. And
alfo, by a great variety of ftatutes *, their privilege even of
purchafing from any living grantor is much abridged ; fo that
1 10 Rep. 30. * From magna carta. 9 Hen. III.
34 Hen. VIII. c. 5. c. 36. to 9 Geo. II. c, 36.
w Hob. 136.
=
(9) This aft clearly vacates all private llatutes, both prior and
fubfequent to it's date, which require the concurrence of more than
a majority to give validity to any grant or election. The learned
judge is of opinion that it has not affe&ed the negative given by
the ftatutes to the head of any fociety ; but I am inclined to think
this opinion may be queftioned ; efpecially in cafes where, in the
firft in fiance, he gives his vote with the members of the fociety. It
is the ufual language of college ftatutes to direft that many acts fhall
be done by gardianus & major pars foe torum, or magi/ler, or pnepoji-
tus et major pars ; and it has been determined by the court of
king's bench, Coivp. 377. and by the vifitors of Clare-hall, Cam-
bridge, and alfo by the vifitors of Dublin college, that this expref-
fion does not confer upon the warden, mafter, or provoft, any nega-
tive ; but that his vote mufl be counted with the reft, and that he
is concluded by a majority of votes againft him.
In i Strange, 54. the court of king's bench declared, that in the
cafe of the city of London the mayor and common council have
power to do a As, and yet the aft of the majority of the common
council is good, though the mayor diffents.
Major pars, or more than one half, mutt be prefent to make a
corporate meeting ; they are then divided into two parts, prefent
and abfent.
now
479 The RIGHTS BOOK L
now a corporation, either ecclefiaftical or lay, muft have a
licence from the king to purchafe y , before they can exert
that capacity which is vefted in them by the common law j
nor is even this in all cafes fufficient. Thefe ftatutes are
generally called the ftatutes of mortmain : all purchafes made
by corporate bodies being faid to be purchafes in mortmain^
in mortua manu : for the reafon of which appellation fir
Edward Coke z offers many conjectures j but there is one
which feems more probable than any that he has given us,
viz. that thefe purchafes being ufually made by ecclefiaftical
bodies, the members of which (being profefled) were reckon-
ed dead perfons in law, land therefore, holden by them,
might with great propriety be faid to be held in mortua
manu (10).
I SHALL defer the more particular expofition of thefe
ftatutes of mortmain till the next book of thefe Commen-
taries, when we (hall confider the nature and tenures of
eftates ; and alfo the expofition of thofe difabling ftatutes of
queen Elizabeth, which reftrain fpiritual and eleemofynary
corporations from aliening fuch lands as they are at prefent
in legal pofieflion of ; only mentioning them in this place,
for the fake of regularity, as ftatutable incapacities incident
and relative to corporations.
THE general duties of all bodies politic, considered in their
corporate capacity, may, like thofe of natural perfons, be
1 By the civil law a corporation was fubmxum fit, li a credit at em cafere nan
incapable of taking lands, unlefs by fo/e, dubium non efi. Cod. 6. 24. 8.
1 pedal privilege from the emperor ; * i Inft. a.
iolltgium, ft nullo ffteiali frivilegio
( 10) If I might add another conje&ure upon the origin of
this word, I (hould fay that lands held by a corporation, on
account of the perpetuity of fucceflion, did not yield to the lord
the great feudal fruits of relief, wardfhip, and marriage ; and for
that reafon they might be faid to be held in a dead or unproduc-
tive hand.
reduced
Ch.i8. ^PERSONS. 480
reduced to this fmgle one ; that of acling up to the end or
defign, whatever it be, for which they were created by their
founder.
III. I PROCEED therefore next to inquire, how thefe cor-
porations may be viftted. For corporations, being compofed
of individuals fubjeft to human frailties, are liable, as well
as private perfons, to deviate from the end of their inftitution.
And for that reafon the law has provided proper perfons to
vifit, inquire into, and correct all irregularities that arife
in fuch corporations, either fole or aggregate, and whether
ecclefiaftical, civil, or eleemofynary. With regard to all
ecclefiaftical corporations, the ordinary is their vifitor, fo
conftituted by the canon law, and from thence derived to
us^ The pope formerly, and now the king, as fupreme or-
dinary, is the vifitor of the archbifhop or metropolitan ; the
metropolitan has the charge and coercion of all his fuffragan
bifhops; and the bifhops in their feveral diocefes are in
ecclefiaftical matters the vifitors of all deans and chapters, of
all parfons and vicars, and all other fpiritual corporations.
With refpecT: to all lay corporations, the founder, his heirs,
or affigns, are the vifitors, whether the foundation be civil or
eleemofynary ; for in a lay incorporation the ordinary neither
can nor ought to vifit a .
I KNOW it is generally faid, that civil corporations are fub-
je& to no vifitation, but merely to the common law of the
land ; and this mall be prefently explained. But firft, as I
have laid it down as a rule that the founder, his heirs or
affigns, are vifitors of all lay corporations, let us inquire
what is meant by the founder. The founder of all corpor-
ations in the ftriaeft and original fenfe is the king alone, for
he only can incorporate a fociety ; and in civil incorpor-
ations, fuch as mayor and commonalty, &c. where there are
no pofleffions or endowments given to the body, there is no
other founder but the king : but in eleemofynary foundations,
xo Rep. 31.
fuch
480 The RIGHTS BOOK I.
fuch as colleges and hofpitals, where there is an endowment
of lands, the law diftinguifhes, and makes two fpecies of
[ 481 ] foundation ; the one fundatio incipient, or the incorporation,
in which fenfe the king is the general founder of all colleges
and hofpitals j the other fundatio perficiens, or the dotation of
it, in which fenfe the firft gift of the revenues is the found-
ation, and he who gives them is in law the founder : and it is
in this laft fenfe that we generally call a man the founder of
a college or hofpital b . But here the king has his preroga-
tive: for if the king and a private man join in endowing an
eleemofynary foundation, the king alone fhall be the founder
of it. And, in general, the king being the fole founder of
all civil corporations, and the endower the perficient founder
of all eleemofynary ones, the right of vifitation of the former
refults, according to the rule laid down, to the king ; and of
the latter to the patron or endower.
THE king being thus conftituted by the law viator of all
civil corporations, the law has alfo appointed the place
wherein he fhall exercife this jurifdicbion, which is the
court of king's bench ; where, and where only, all mifbeha-
viours of this kind of corporations are inquired into and re-
drefled, and all their controverfies decided. And this is what
I underftand to be the meaning of our lawyers, when they
fay that thefe civil corporations are liable to no vifitation ; that
.is, that the law having by immemorial ufage appointed them
to be vifited and infpeted by the king their founder, in his
majefty's court of king's bench, according to the rules of the
common law, they ought not to be vifited elfewhere, or by
any other authority c . And this is fo ftriclly true, that though
b 10 Rep. 33. porations where no fpecial vifitor is ap-
c This notion is perhaps too refined, pointed. But not in tlie light of vifitor :
The court of king's bench (it may be for as its judgments are liable to be
faid), from its general Superintendent reverfed by writs of error, it may be
authority where other jurisdictions are thought to want one of the eflential
deficient, has power to regulate all cor- marks cf vifitatorial power (n).
( 1 1 ) And it wants, I conceive, another mark of vifitatorial
power, which is, the difcretion of a vifitor voluntarily to regulate
and
Ch. 18. ^PERSONS. 481
the king by his letters patent had fubjeacd the college of
phyficians to the vifitation of four very refpetable perfons,
the lord chancellor, the two chief juftices, and the chief
baron ; though the college had accepted this charter with
all poflible marks of acquiescence, and had afted under it for
near a century; yet in 1753, the authority of this provifion
coming in difpute, on an appeal preferred to thefe fuppofed
vifitors, they directed the legality of their own appointment [ 482 ]
to be argued : and, as this college was merely a civil and not
an eleemofynary foundation, they at length determined, upon
feveral days' folemn debate, that they had no jurifdi&ion as
vifitors ; and remitted the appellant (if aggrieved) to his
regular remedy in his majefty's court of king's bench.
As to eleemofynary corporations, by the dotation the
founder and his heirs are of common right the legal vifitors,
to fee that fuch property is rightly employed, as might other-
wife have defcended -to the vifitor himfelf : but, if the founder
has appointed and affigned any other perfon to be vifitor, then
his aflignee fo appointed is inverted with all the founder's
power in exclufion of his heir. Eleemofynary corporations
are chiefly hofpitals, or colleges in the univerfities. Thefe
were all of them confidered by the popifli clergy as of mere
ecclefiaftical jurifdi&ion: however, the law of the land judged
otherwife ; and with regard to hofpitals it has long been
held d , that if the hofpital be fpiritual, the bifhop mail vifit ;
but if lay, the patron. This right of lay patrons was indeed
abridged by ftatute 2 Hen. V. c. I. which ordained, that the
ordinary mould vifit all hofpitals founded by fubjedls ; though
the king's right was referved to vifit by his commiflloners
fuch as were of royal foundation. But the fubje&'s right
k d Yearbook, 8 Edw. Ill 28, 8 A(T. 29.
and fuperintend. The court of king's bench, upon a proper com-
plaint and application, can prevent and punifh injuftice in civil
corporations, as in evfery other part of their jurifdiftion ; but it is
not the language of the profeffion to call that part of their au-
thority a vifitatorial power.
4 was
482 The RIGHTS BOOK I.
was in part reftored by flatute 14 Eliz. c. 5. which direQs
the bifhops to vifit fuch hofpitals only, where no vifitor is
appointed by the founders thereof: and all the hofpitals
founded by virtue of the flatute 39 Eliz. c. 5. are to be
vifited by 'fuch perfons as (hall be nominated by the refpec-
tive founders. But ftill, if the founder appoints nobody,
the bifhop of the diocefe muft vifit e .
COLLEGES in the univerfities (whatever the common law
may now, or might formerly judge) were certainly confidered
by the popifh clergy, under whofe direction they were, as
tcclejiaftical) or at leaft as clerical) corporations ; and there-
fore the right of vifitation was claimed by the ordinary of the
483 ] diocefe. This is evident, becaufe in many of our moft an-
tient colleges, where the founder had a mind to fubjel them
to a vifitor of his own nomination, he obtained for that pur-
pofe a papal bull to exempt them from the jurifdition of the
ordinary ; feveral of which are ftill preferved in the archives
of the refpective focieties. And in fome of our colleges,
where no fpecial vifitor is appointed, the bifhop of that dio-
cefe, in which Oxford was formerly comprized, has imme-
morially exercifed vifitatorial authority (12) : which can be
afcribed to nothing elfe, but his fuppofed title as ordinary to
vifit this, among other ecclefiaftical foundations. And it is
not impoflible, that the number of colleges in Cambridge,
which are vifited by the bifhop of Ely, may in part be de-
rived from the fame original (13).
BUT, whatever might formerly be the opinion of the
clergy, it is now held as eftablifhed common law, that col-
a inft. 735.
(12) That is, the bifhop of Lincoln, from whofe diocefe that
of Oxford was taken.
(13) In the univerfity of Cambridge, I am inclined to think,
that the bifhop of Ely has no vifitatorial authority from prefcrip-
tion, but that, in every inftance in which he is vifitor, he is ap-
pointed by the exprefs declaration and fpecial provifion of the
founder. He, without doubt, was fixed upon from the dignity
of his ftation and the proximity of his refidence.
6 leges
Ch.iS. ^PERSONS. 483
leges are lay corporations, though fometimes totally compofed
of ecclefiaftical perfons ; and that the right of vifitation does
not arife from any principles of the canon law, but of necef-
fity was created by the common law f . And yet the power
and jurifdiftion of vifitors in colleges was left fo much in the
dark at common law, that the whole doctrine was very
unfettled till the famous cafe of Philips and Bury . In this
the main queftion was, whether the fentence of the bifhop of
Exeter, who (as vifitor) had deprived do&or Bury the redor
of Exeter college, could be examined and redrefled by the
court of king's bench. And the three puifne judges were of
opinion, that it might be reviewed, for that the vifitor's jurif-
didlion could not exclude the common law j and accord-
ingly judgment was given in that court. But the lord chief
juftice Holt was of a contrary opinion ; and held, that by the
common law the office of vifitor is to judge according to the
ftatutes of the college, and to expel and deprive upon juft
occafions, and to hear all appeals of courfe : and that from
him, and him only, the party aggrieved ought to have redrefs ;
the founder having repofed in him fo entire a confidence,
that he will adminifter juftice impartially, that his determin- r A$A 1
ations are final, and examinable in no other court whatfo-
ever. And, upon this, a writ of error being brought into
the houfe of lords, they concurred in fir John Holt's opinion,
and reverfed the judgment of the court of king's bench. To
which leading cafe all fubfequent determinations have been
conformable. But, where the vifitor is under a temporary
difability, there the court of king's bench will interpofe, to
prevent a defect of juftice h . Alfo it is faid 1 , that if a founder
of an eleemofynary foundation appoints a vifitor, and limits
his jurifdiclion by rules and ftatutes, if the vifitor in his
fentence exceeds thofe rules, an action lies againft him j
f LordRaym. 8. h Btn.jgj.
* Lord Raym. 5. 4 Mod. 106. ' 2 Lutw. 1566.
Show. 35. Skinn. 407. Salk. 403.
Carthew, 180.
VOL. T. X x but
484 The RIGHTS BOOK I.
but it is otherwife, where he miftakes in a thing within his
power (14).
IV. WE come now, in the laft place, to confider how
corporations may be difiblved. Any particular member may
be disfranchifed, or lofe his place in the corporation, by
acting contrary to the laws of the fociety, or the laws of the
land ; or he may refign it by his own voluntary ac"l k . But
the body politic may alfo itfelf be diflblved in feveral ways ;
which ditlblution is the civil death of the corporation j and
k u Rep. 98.
(14) No particular form of words is neceflary for the appoint-
ment of a vifitor, Sic vtfitator, or vifitationem commendamus, will
create a general vifitor, and confer all the authority incidental
to the office (i Burr. 199.) : but this general power may be
reftrained and qualified, or the vifitor may be directed by the ftatute
to do particular ads, in which inftances he has no difcretion as
vifitor : as where the ftatutes direct the vifitor to appoint one of
two perfons nominated by the fellows, the matter of a college ;
the court of king's bench will examine the nomination of the
fellows, and if correct, will compel the vifitor to appoint one of
the two. 2 T. R. 290. New ingrafted fellowfhips, if no ftatutes
are given by the founders of them, nmfl follow the original found-
ation, and are fubject to the fame discipline and judicature*
I Burr. 203. It is the duty of the vifitor, >in every inftance, to
effectuate the intention of the founder, as far as he can collect it
from the ftatutes and the nature of the inftitution ; and in the
exercife of this jurifdidtion he is free from all control. Lord Manf-
field has declared, that " the vifitatorial power, if properly exer-
" cifed without expence or delay, is ufeful and convenient to
*' colleges; and it is now fettled and eflablifhed, that the jurif-
" diction of a vifitor is fummary and without appeal from it."
I Burr. 200. It has been determined that, where the founder of a
college or eleemofynary corporation has appointed no fpecial vifitor,
if his heirs become extinct, or if they cannot be found, the right
of vifitation devolves to the king, to be exercifed by the chancellor
in the fame manner, as where the king himfelf is the founder.
tfT. R. 233. 2 Vef.jun, 609.
Ch.iS. /PERSONS, 484
in this cafe their lands and tenements fliall revert to the
perfon or his heirs, who granted them to the corporation :
for the law doth annex a condition to every fuch grant, that
if the corporation be diflbived, the grantor {hall have the
lands again, becaufe the caufe of the grant faileth '. The
grant is indeed only during the life of the corporation ;
which may endure for ever : but when that life is determined
by the diflblution of the body politic, the grantor takes it
back by reverfion, as in the cafe of every other grant for
life. The debts of a corporation, either to or from it, are
totally extinguiflied by it's diflblution ; fo that the members
thereof cannot recover; or be charged with them, in their
natural capacities m ; agreeable to that maxim of the civil
law", ll jt quid univerjitati debetur t Jingulis non debetur ; nec t
c< quod debet univerfttas, finguli debent"
A CORPORATION maybe diflbived, i. By acl of parliament, r 4 g-
which is boundlefs in it's operations. 2. By the natural
death of all it's members, in cafe of an aggregate corpor-
ation. 3. "^v furrender of it*s franchifes into the hands of
the king, which is a kind of fuicide. 4. By forfeiture of it's
charter, through negligence or abufe of it's franchifes ; in
which cafe the law judges that the body politic has broken
the condition upon which it was incorporated, and there-
upon the incorporation is void. And the regular courfe is to
bring an information in nature of a writ of quo ivarranto, to
inquire by what warrant the members now exercife their cor-
porate power, having forfeited it by fuch and fuch proceed-
ings. The exertion of this ad of law, for the purpofes of
the ftate in the reigns of king Charles and king James the
fecond, particularly by feizing the charier of the city of Lon-
don, gave great and juft offence ; though perhaps, in ftria-
nefs of law, the proceedings in moft of them were fufficiently
regular : but the judgment againft that of London was
reverfed by ad of parliament after the revolution ; and by the
fame ftatute it is enafted, that the franchifes of the city of
Co.Litt.i3. *
.njL.y.387. -StM. SW.&M, C.8.
London
485 ^ RIHGTS, &c. BOOK I.
London (hall never more be forfeited for any caufe whatfo-
ever. And, becaufe by the common law corporations were
diflblved, in cafe the mayor or head officer was not duly
elected on the day appointed-' in the charter or eftabliflied by
prefcription, it is now provided P, that for the future no
corporation mall be diflblved upon that account ; and ample
directions are given for appointing a new officer, in cafe
there be no election, or a void one, made upon the prefcrip-
tive or charter day.
> Stat. II Geo. I. c. 4.
THE END OF THE FIRST BOOK.
Printed by A. Strahan, Law- Printer to His Majesty,
Printers-Street, London.
A 000006123 4