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.

 
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