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I. Genet. trif‘tfis‘mt'
phabetically dz;
Notes and Reference; to t
p’Anoerr, of the Inner—Temple, Ei’q, r .-. i ,
Chief Juﬁice Holt, with the Allowance o. .41. M receivers.
and all the reﬁ of the Judges.

2. The Law of La-f’t Wills and Teﬁaments, can aiming
Rules for the Conﬁrudiion of Laﬂr Wills. l

3. The Compleat Sheriff; to which is added, the Ofﬁce
of a Coroner. The ad Edition. ’

4. The Modern Conveyancer, or Conveyancing im-
proved ; being a choice Colleé'tion of Prelidents on molt.
Occaﬁons, drawn after the manner of Conveyancing, now
in Ufe by the greateﬂ Hands of the Age. in 3 Vol. The
Third Edition, with large Additions.

5. The ‘Clergyman’s Law, or Compleat Incumbent,
colledted from the Contmon and Statute Laws relating to
the Church and Clergy of England. By PV. Wat/(in, Dr. of
Laws. The ad Edition with Additions, in 2 Vol. _

6. The Juﬁice of Peace his Companion , or a Summary
of all the Adts of Parliament to 1712. whereby one, two,
or more Jul’tices of the Peace are authorized to adt, no:
only in, but out of the Seﬂions of the Peace : With an
exa‘dt Alphabetical Table. By Samuel Blackerbj, of Gray:-
Imr, Efq;

agaéCrown Law; or the Common and Statute Law of
England. concerning Trials of High Treafon, Mifpriﬁon of
TreaI'On; and in all other Crimes and Offences relating to
the Cronin; Alphabetically digeﬁed under proper Heads,
and brought down to the Year x7to, with an exaéi: Ta-
ble. By W} Barriﬁer at Law.

8. Legal Proviﬁons for the Poor ; or a Treatife of the
Common and Statute Laws concerning the Poor, either as to
Relief, Settlement, or Punilhment. Being a Methodical
Guide forJuﬁices of the Peace, Church‘wardensand Over-
feers. Wherein are explained all the Statutes relating to
that Snbjedt; with the Ancient and Modern Law-Cafes and
Refolutions of the Judges: And alfo many Precedents pro-
per for fuch a Treatife. By S. C. of the Inner-{Tamale Efq;

      
  

  

 

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ANALYSIS

‘ Common Law

 

 

 

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THE

CONTENTS

4—” L“ A—‘i‘ ...~-.4~.

CHAPQI.

Oncerning the Dz'ﬂribution 0f ibe
Law: of England into jCMIr ‘
won Law, and Statute Law. '

And Pirﬂ, concerning #35 Ste-
:nie Law, or A13: of Parliament. Page I.

CHAP. II.

I”- *m'ng tbe Lex non Scripta, i. e.
1be Common or Municipal Law: of 1121': :,
Kingdom. Page 20.

CHAR HL'

Concerning the Common Law of England,
it: 7% and Excellence, and the Reaﬁ 2
of It: Dencminrza‘icn. Page 45'.

11 3 C H 5%. P1

 
 

 

The CONTENTS.

C H A P. IV.

Touching the Original of the Cowhzon‘
Law of England. Page 58.

c H A P. V.

How the Common Low of England ﬂood
at and for [have Time after the coming ~
in of King William I. Page 71.

c H A P. v1.

Comeming the Parity ‘or Simiiituole of the
Law: of England and Normandy, and
the Reojom thereof. ‘ ’ Page ii I.

C HA p: VII.

; l

Cozzoemiizg the Progrej} of the Law: of
England after the Time ofKing Wil-

, Iiam I. until the Time of King Ed—
ward II. Page 134.

C H A P. VIII.

A Brief Contimeotion of the Progreﬁx of

the Law, from the Time of King Ed-
ward

4:535 5Q)
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Wilt-(l, lI. z'izclhﬁve , down to Maﬁa
Timex. . Page 167.

C HAP. IX.

Concerning the fettlz‘ng of the Common Law
of England in Ireland and Wales:
Am! [ooze Ohferz-vztiom touching the Iﬂer
of Man, Jerfey and Guernfey, 6?.

Page 178.

C H A P. X.

Comerm'ng the Communication of the Low:
of England unto the Kingdom of
Scotland. _ ‘ Page 190.

C HA P. XI.

Touching the Com'ﬂ: of Deﬁem‘: in Eng-
land. Page 207.

C H ;A P. l‘ XII.
Touching Trial: by jury. Page 2 5 2.

THE

 
 

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THE ’ 4
HISTORY?
‘OFTHE,'

\ Common" Law
ENGLAND;

., . C3515? f». . ..
Concerning t6; Diﬂribution of five Lair: qf
England into Cowman Lanigan'd Steam?
Law. And Fir/l, coitcgming tbc Stdtmé
Law, in1 A6?! of Parliaml’nt.’

’ HE LaWs of En [avid m'a“ 5&1" The” .
r cﬁé'ug'h’ be diﬁgded‘ fut: wg Kipdc£_
Kinds, viz; Lgx Spipta, the writ. 9%
‘ , t'en La‘WLandsLex m Scfi Limb;
"hwritt‘e‘n'LaW: For although (33.7 ‘all be'
awn? Mréiftgr) 511 {Eh‘e Leiw'é (“if this King";
lbni‘h‘a‘ﬁfc foxi‘ae Monﬁméhfs‘ 6E Mem'ggiggg
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1. Lege:
mnStripM.

2. Lay:
Scriﬁg.

Statute
Laws of
Two
Kinds.

‘V

g ;
'q- {oi . 4
Timeof _
Memory.

". in “obfer‘ve,

v.«.-V‘....s._.4.» -- ,7 W

m): mitten} of the (31m 10-
thereof in Writing, yet all of them have not
theii‘ Original itLWriting; for ﬂame of thofe
Laws have ohtain’d their Force by' imme-
morial Ufage or Cuﬁom, and fuch Laws: ,
are properly called Lege: mm Seripm, or un-
written Laws or Cuﬁoms. _.

Tﬁofe Laws therefore that I gall'f'ngw'
Scripm, 0': Written Laws, are fu'ch as are
uf'ually called Statute Law, or Aéts of Par-
liament, which are Originally reduced into
Writing before they are enaéted, or receive
any bihdﬁig--Powet,~every fuch Law being
in the ﬁtf’c Inﬂance formally drawn up in
Writing, and made, as it were, a Tripartite
Inzltmurehbetween the King, the Lords and
t 3 commons; for Witl‘ﬁout the cbnéurren’t
G tof all thofe Théee Parts‘of the Leia
giﬂature,nofuch Law is, or can be made: But
fhekings of this Realm, {with the Advice.
and Confentof borh Houfes of Parliament,
have Power to malt-e New ngs, or to al-
ter, re ea], or enforce the Old. And this
hashee done inailsucéeﬂiOtz'oE «Ages. ‘ "
:it-NaWSSWute Lﬁwasiﬁfﬂﬁisﬁf Parliament,
gleefﬂlwp Kim-1* we Firm Thofe Statutes
which were mﬂaa’ﬁulzlg‘om IEme of; Memory;
and, Secondly", "I'libe‘ Statutes Which were
maids”: wit/ainﬂgrfwﬁeae 17W.” Mmriewhetﬁ-

ﬂ hatﬁc'é‘ot“ lti'g . to 'a: 'iurgdiciﬂ 1
Accbuﬁt and 1e" el'SigtiiﬁbatiOn; ﬁmeﬁzz’zb- ‘
it?“ Magda "it {it‘ll Time oft L'iijiltatiomiin a
Writbf Right“; Mt‘iféh BYﬁ'ftﬁeJ Statuteof
If’eﬂm‘igﬂer 1 . my. ; I’Wasfe‘ttled, ahd'reduced
it? the Beginning? “the 83ng off "King" R11
éégzd‘lr‘o‘t“ Ea? #17722 ”(gramme R'ﬁgtk’k'i’cbdrﬁ
f'w'" ‘ Pﬁmii

 
Ch. 1. «common Stain of .Engla'nd; g.
Primi, who began his Reign the, 6th of
7:41] 1189, and was crown’d the 3d ofSep;
tember following": So that whatfoeirer was
befOre that Time, is chbre. Time of M65!
m’ory; and what is ﬁnce that Time, is, in a
legal Senfe, faid to be wit/913201" tince the
,Time of- Memory. A >
' ' And therefore it is, that thoferStatutes 01'
A835 of Parliament that were madebefore"
the beginning of the Reign of King Ri—~
tbard I. and have not ﬁnee been repealed
or altered, either by contrary Ufhg'e, or by
fubfequent Acts of Parliament, are now ace
counted Part of theLex mm Sci-5pm, being;
as it Were incorporated therein'to, and be:
Come a Part of the Common Law ; and in
JTruth‘. fuch Statutes are not now pleadable
:55 Acts of Parliament, (becaufe what is be-
ﬁre Time of Memoryis fuppofed without
3‘ Beginning, or athlea‘ﬂ fuch‘a Beginning as
the Law takes Notice of ) but they obtain "at
their Strength by m’eer imniem’orial U1"age '-
or Cuf’tom. " _~ ‘ ._ _ A , \ x

And do'ubtlefs“, m‘anycf , th'ofe Things Ancient
that now obtain as Common Law, had their Statutes.
Originalvb‘y Parliamentary Acts or Conﬂi-
tut‘ion’s, made in, Writing b‘ the King;
Lords and Corﬁm‘Ons; thong thofe Acts
are now either not". CXtant, or if eXt-ant,
were made 'befOre Time of Memor?; and
the Evidence of the Trﬁth’ﬁereof will eaﬁg
51 appear, for that 'in many of there old
,. as of Parliament that were made before
T {rife Of Meritory, ﬁnd ﬁre‘ yet" extant, we n
may ﬁnd many of thofe Laws enaéfed-whieh
— B 3‘ new

 
 

‘,

Of Two
Periods.

e132 ipfﬁnzg of the Chit:

now obtain meerly as Common Law, or
the General Cuﬁom of the Realm: And
were the reﬂ of thofe Laws extant, proba-
bly the Factﬁeps of the Original Initial. .
tion’of many were Laws that now obtain
meerly as Common Law, Or Celt-emery
Laws, to ' immemorial Ufage, would appear?
to have een at ﬁrf’t Statute Laws, or Aé’ts of
Parliament. ,.
Thole ancient Aé’cs of Parliament which
are ranged under the Head of Leger mm
Scripne, or Cuﬁomary Laws, 35 being made ,
before Time of Memory, are to be conﬁz
dered under Two Periods : Viz. Firﬂ, Such
as were made before the coming in of King
William I. commonly called, 77.»: Conqueror;
or, Secondly, Such as intervened bet-ween
his coming in, and the beginning of-thc‘
Reign of Ricbtzrd I. which is the legal Li».
mitarion of Time of Memory. ;
The former Sort of thefe Laws are mem-
tioned by our ancient H‘ii’torians, efpecial.»
ly by Brampton, and are now colleéted into
one Volume, by Mlliam Lumbard Efq; 'in
his ﬂaft‘arﬂa ale priﬁrk Anglomm Legiém, be.
ing a Colleétion of the Laws of the Kings,
Ina, 4455241, Edward, Atbelﬂam, Edmond, Ed-
gar, Etbelred, Canning, and of Edward t3:
mﬁﬂbr; which laﬂ Body of Laws, com-
piled b Edward the Conftﬂér, as they were
more all and perfeé’t than the reﬁ‘, and
better accommodated to the then State of

‘Things, {0 they were fuch whereof the

Englifh were always very zealous, as being
the, great Rule and, "Standard of their
.. Rights
Oh. I. snowman in!!! at England. gt

Fijights and Liberties: Whereof more here-
a ter.

The {econd Sort are thofe Edie’ts, Acts of 2. From
Parliament, or Laws, that were made after .W 1- t0
the cOming in of King William, commonly 1" "
named, Tbe Conqueror, and before the be in- .
wing of the Reign of King Richard I. and
more efpecially are thofe which follow;
whereof I {hall make but a brief Remem~
brance here, becaufe it will be neceﬂ'ary
in the Sequel of this Difeourfe (it-may be
more than once) to refume the Mention of
them; and beﬁdes, MLSelzlen, in his Book
called, 71mm Anglorum, has given a full AC—
count of thofe Laws; fo that at prefent it
will be fuﬂicient. for me,‘brieﬂy to collect
the Heads or Diviﬁons of them, under the
Reigns of thofe feveral Kings wherein they
were made, 115%.

Firﬂ, The Laws of King mllz'm I. Thefe K. W. r.‘
conﬁl’ced in a great Meafure of the Repetic
tion of the Lam of King Edward the Con—
ﬁﬂér, and of the enforcing them by his own
Authority, and the Affent of Parliament, at
the Requeﬁ of the Englifb ; and fome new
Laws were added by himfelf with the like-
AlTent of Parliament, relating to Mili-
tary T enures, and the Prefervation of the
publick Peace of the Kingdom; all which
are mention’d by Mr. Lambart, in the Tra-
étate before-mentioned, but more fully by
Mr. Selden, in his Colleé’tions and Oblérva- .
tions upon Eadmerw. ’

Sewn/1‘1], We ﬁnd little of new Laws after K. H. i.
this, till Ch; Time of King Henry I. who

3 ’ be-

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‘ $92 £91302? 0f {53‘ Ch 1. w

beﬁdes the Conﬁrmation of the Laws of the
Confeﬂor, and of King William I. brought
in a new Volume of Laws, which to this
Day are eXtant, and called the"..Law:‘ of:
Kin Henry I. The entire Colleétion of
the e is entered in the Red Book of the Ex;
cbequer, and from thence are tranforibed and
publifhed by the Care of Sir Roger Tapifden,
in the latter End of Mr. Lambart’s Book
before-mention’d ; what the Succefs of theft: '
Laws were in the Time of'King Stem»;
and King Henry'II. we {hallfee hereafter: But
they did not much obtain in England, and
are now for the molt Part become wholly,
Obfolete, and in Effeet quite antiquated. .
T/Jinﬂy, The next conﬁderable 'Body of-
A615 of Parliament, were thofe made Under
the Reign "of King Henry II. commonly
called, The Con/fitmiom of Clarendon; what

they were, appears beﬁin Hover/7cm and Matt

szér, under the Years of that King. We
have little Memory elfe of any conﬁderable
Laws enaeted in this King’s Time, except
his Afiizes,. and fuch Laws as related to the
Foreﬁs; which were afterwards improv’d
under theReign of King Richard I. 'But
of this hereafter, more at large; ‘ i ‘
. And this {hall ferve for a fhort Inﬁance

of thofe Statutes, or Aéts of Parliament,
that were'made b'eﬁ/re Time of Memory;
whereof, as we have no Authentical Re:
cords, but only Tranferipts either in our
ancient Hiftorians’, or other Books and Ma;
nufcripts; fo they being Things done be-
fore Time of Memory, obtain at this Day
no, further than as by Ufage and Cuﬁom they.
, . . , y, a _ . ate;

 
ch. 1: (Eamon 1am “at-England; ~ 37
are, as it were, engrafted into the Body of the
Common Law, and made a Part thereof. "

And now I come to thofe Legérscripm, Leger
or A615 of Parliament, which were made 3"?“i l '
ﬁnce or within the Time” of Memory, x3335
viz. Since the beginning of the Reign of °
Richard I. and thole I {hall divide into TWO
General Heads, ruie. Thofe we ufually call
the Old Statutes, and thofe we ufually call
the New or later Statutes: And becaufeI
would preﬁx ,fome certain Term or Bounr
dary between them, I {hall call thofe the
Ola! Statutes which end with the Reign of Old St:-
King Edward II. and thofe I {hall call the W“-
.Ngw or later Statutes which begin with the
Reign of King'Edwm-d III. and f0 are de-
rived through a Succeﬂion'of Kings and
Queens down to this Day, by a continued
and orderly Series.

, Touching theft: later SortI {hall fay no— Lamp 36;.
thing, for they all keep an orderly and re- tutcs‘ , .
gular Series of Time, and are exrant upon
Record, either in the Parliament Rolls, or
in the Statute Rolls of King Edward III.
and thofe Kings that follow: For except-
ing fome few Years in the beginning of
K-Edwarrl III, 2'. e. 2, 3, 7, 8 (9' 9 Eda»..3. all
the Parliament Rolls that ever were ﬁnce
' that Time have been preferved, and are ex-
taut; and, for the molt Part, the Petitions
, upon which theAéts were» drawn up, or
the very Acts themfelves.

Now therefore touching the elder A615 Old'Sta.
of Parliament, r‘w‘z. T hofe that were made mm in
between the Firf’t Year of the Reign of ’QCKTéme,
K.Ricbtzrz31.and the laft Year of Eli/braid II. ° ' ‘3’

1.3 4 W6

 
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we have little small: in any authentical‘

.Hiﬁorys and "nothing in any authentical

. . Record touching Aé‘ts made in the Time

‘54-“ of K. Rich. I. u'nlefs we take in thofe Conﬂi- -
curious and Aﬂizes mentioned by Hmedm

as afor aid. ‘ ' - . ,

~ Neit er is there any great Evidence;

What ‘Aéts of Parliament paféld in the Time

3:79.,“ Of King 3062:, tho’ doubtlefs many there

Were both in his Time, and in the‘Time of

K. Rich. 1. But there is no Record extant of

them, and the Engliﬂr Hiﬂories of thofe‘

Times give us but little Account of theft:

Laws; only Mattbew Punk gives us an Hi—

ﬁorical Account of the Magna Charm, and

Charm ale For’eﬂa, granted by King 3‘05» aft

Running Mead the Iyth of Time, in the 86v
venteenth Year of his Reign. ‘ ‘

And it feems, that the Coneefiion of theft:

granted, Charters was in a Parliamentary Way ; you

"1‘ «"1" may fee the Tranfcripts of both Charters

Way guer'lmrim in Mat. Paris, and in the Red Book

‘ of the Excbeqtler. ' There were {even Pair of

thefe Charters {em to fome of the Great

Monaﬂeries under the Seal of King 701m, one

Part whereof fent to the AM}. of 'Iewkerbg’;

r] Ihav'e feen under the Seal of that King;

the Subftance thereof diﬂ’ers fomethin g from

the M m Clmrm, and Chang: dc Forcﬂa, gran-

ted by . ing Hen. III. but not very much, as

may appear by comparing them. ~

But tho’ thefe Charters of King 705» feem

tohave’ been paired in a kind of Parliament,

yet it was in a Time of. great Confuﬁo’ri he‘-

txgveen that King and his Nobles 5 and thtere‘.

His two
Charters.

 
Ch. 1. Qtammmt 1am of England. -,

fore they obtained nor a full Settlement till
the Time of King Hen. III. when the Sub-
ﬂance of them was enacted by a full and
folemn Parliament.

Itherefore come down to the Times of
thofe fucceeding Kings, Hen. III. Ede,
and Edna. II. and the Statutes made in the
Times of thofe Kings, I call the 01d Sta- Old St»
tum; partly becaufe many of them were “m"
made but in Afﬁrmance of the Common
Law; and partly becaufe the reﬂ of them,
that made a Change in the Common Law,
are yet {0 ancient, that they now feem to
have been as it were a Part of the Common
Law, efpecially conﬁdering the many Ex-
poﬁtions that have been made of them in
the feveral Succellions of Times, whereby
as they became the great Subieét of Judicial
Refolutions and Deciﬁons; fo thofe Expo-
ﬁtions and Deciﬁons, together alfo with
thofe old Statutes themfelves, are as it were
incorporated into the very Common Law,
and become a Part of it.

In the Times of thofe three Kings lall;
mentioned, as likewife’in therTimes of their
Predeceﬂors, there were doubtlefs many
more Aas of Parliament made than are
now extant of Record, or otherwife,
which might be a Means of the Change of
the Common Law in the Times of thofe
Kings from what it was before, tho’ all the
Records or Memorials of thofe Acts of Par—
liament introducing fuch a Change, are
nor at this Day extant: But of thofe that
are extant, I {hall give you a brief Account,

not

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3%: many at?— tbt. Ch. :2
not intending a large or accurate Treatiie
touching that Matter. ‘ _ .
h The Reign of Hen. III. was a troublee
fome Time, in refpeé’c of the Differences be-f-
tween him and his Barons, whichwere not
compofed till his 511‘: Year, after the Battle
of Emﬂmm. In his Time there were many
Parliaments, but We have only one Sum~
mans of Parliament extant of Record in his
Reign, win. 49 Hen. III. and we have but
few of thofe many Aéts of Parliament that
paired in his Time, 1122;. The great Char-
ter, and C/mrm ale Foreﬂa, in the Ninth Year
of his Reign, which were doubtlefs pafs’d
in Parliament; the Statute of Merton, in the
20th Year of his Reign ; the Statute of
Marlbridge, in the ydeear; and the Diﬁum ‘
five Ediﬁum ale Kenelwortb, about the fame
Time; and fome few Other old A635.

In the Time of K. E11212. I. there are many
more Acts of Parliament exrant than in the
Time of K. Hen. III. Yet doubtlefs, in this
King’s Time, there were many more Sta-
tutes made than are now extant: Thofe that
are now extant, are commonly bound to-
ether in the old Book of Magma Charm.

y tboﬁa Statute; , great Alterations and
Amendments were made in the Common
Law; and by theft: that are now extant,
we may reafonably gueis, that there were
eonﬁderable Alterations and Amendments
made by thofe that are not extant, which,
poliibly may be the real, tho’ fudden Means
of the great Advance and Alteration of the
Laws'of England in the King’s Reign, Oh“

W ‘35
Ch. 1.. autumn mm of England. 1;.

what they were in the Time of hisiPredez
ceﬂ‘ors. «
‘ The ﬁrﬁ Summons of Parliament that I
remember ’exrant of Record in this King’s
Time, i523 Edw. I. tho’ doubtlefs therewere.
many more before this, the Records Where— ,
fare either loﬂ: or miﬂaid : For many Par--
iaments Were held by this King before that
Time, and many of the A615 pafs’d in thofe
Parliaments are f’till extant 5 as, the Statutes:
of . Weﬂmin/t‘er I. in the 3d of Edw. 1. The
Statutes of Glouce/Zer, 6 Edw. I. The Statutes
of Mﬂminﬂer 2. and of Mama, I; E42». 1..
The Statutes of Weﬂminﬂer 3. and of 2a;
Mrmnto, ‘18 Ed»). I. And divers Others in
other Years, which I {hall have Occaﬁon to
mention hereafter.

In the Time of K. Edw. II. many Parlia- 191;. 2:.
ments were held, and many Laws were en—5
aéted, but we have few Acts of Parliament
of his Reign eXtant, efpecially of Record;
F‘ The Statutes of this King’s Reign which
3" are in Print, are thefe, «viz. The Statutes .
“ De Militibm, @‘ de Frangentilzw Priﬁmw;
‘1‘ I E51722). 2. Articulz' Cleri, 9 E491). 2. . Dg
Garvelerto in London, 10 E4222. .2. The Sta?
‘? tutes of Tork, of Effoins and View of Land,

9‘ 12 Ed»). 2. Weﬂminﬂer 4. 13 Edit). 2. Of
l‘ Eﬂreats, If Edw. 2. Prerogati'va Reg:&:,
17 Edw. 2. tho’ fome think this Statute
to be made Temp. Eh». I. The Statute
of Homage, and the Statute De Terri;
Templarior’, alfo I7 Ed»). 2. View of
E: Frankpledge, 18 Edw. z. And diverf‘ogher

’ ' " 2 bta-i

 
 

 

'1!

Parlia-
menta ry
Records.

Summons
to Parlia-
taunt.

€th mitten, at tit (21:. r
“ Statutes in this King’s Reign, but of un-
“ certain Time. '
And now, beeaufe I intend to give fome
{hart Account of fome general Obferva- '
tions touching Parliament-'5, and of Aé’ts of
Parliament pafs’d in the Times of t‘hof'e
three Princes, «viz. Hen. III. E47». 1. and
Edna. II. becanfe they are of gre’ateﬁ An-
tiquity, and therefore the Circuml’tances
that attended them molt liable to be worn
out b Procefs of Time, I will here men?
tion ome Particulars relating to then} to
referve their Memory, and which may al-
0 he ufeful to be known in relation to other
Things.
We are therefore to know, That there are
thefe feveralKinds of Records of Things
done in Parliament, or efpecially relating

thereto, '«vie. I. The Summons tO' Parlia~

ment. 2. The Rolls of Parliament. ;. Bun-
dles of Petitions in Parliament. 4. The
Statutes, or Aéts of Parliament themfelves.
And, 5. The Erwin ale Parliammto, which for
the moﬂ Part were fuch as iffned for the
Wa es of Knights and Burgeires; but with
the e I {hall not meddle. ""

Hf, As to the Summons to Parliament.
The e Summons to Parliament are not all
centred of Record in the Times of Hen. III.
and Ed»). I. none being exrant of Record
in the Time of Hen. III. but that of 49 Hg». 3.
and none in the Time of Erin). 1. till the
2; Ed»). 1. But after that Year, they are
for the moﬁ part extant of Record, (ta'zn In

” i - Darfp
Ch. i; Grumman 11.310 of England. :3

porﬁ; Claus’ RratularmnJ in the Backﬁde of the
Clofe Rolls. .

Secondly, As to the Rolls of Parliament, Rolls of
quiz. The Entry of the feveral Petitions, Par“?
Anfwers and Tranfae‘tions in Parliament. mm“
Thofe are generally and fucceﬂiVely extant
of Record in the Tower, from 4E4»). 3.
downward till the End of the Reign of
Edw’. IV. Excepting only thofe Parliament's
that intervened between the tit and the
4th, and between the 6th and the nth,
of Erlw. III. .

‘ But of thofe Rolls in the Times ome. III. Man?
and Edw. I. and E121). II. many are loﬁ, and 1°“: ‘5’"
few extant; alfo, of the Time of Hen. III.

I have not feen any Parliament Roll;_and

all that I ever faw of the Time of Ed's». I.

was one Roll of Parliament in the Receipt

of the Exchequer of 18 Edw. I. and thof:
Proceedings and Remembrances which are

in the Liber placitor’ Parliamemi in the Tower,
beginningas I remember with the 20th
Year of Edgy. I. and ending with the Par-
liament of Carliﬂe, 35 Edw. 1. And not con-
tinued between thoie Years with any con-
ﬂant Series; but including fome Remem-
brances of fome Parliaments in the Time of
E112». I. and Others in the Time of Edw. II.

In the Time of Edna. ll. beﬁdes the Retains
Ordinationum, of the 1.0sz Ordonets, about
7 Edw. g. we have little more than the
Parliament Rolls of 7 & 8 Eda». 2. and
what Others are interfperfed in the Parliao
mentBook of Edw I. above-mention’d, and,
as I remember, fome fhort Remembram

£95

 
 

r4

senate:
of Peti-
tions;

5&5, or
Statutes.

Manner
of Paﬂing
meiently.

Anti of
later
Times,

“E08 ilgmzpnf tbz' Ch‘. It
tes of Things done in Parliament in the
:9 E5122). 3. V

Tbirdl], As to the Bundles of Petitions inf
Parliament : They were for the moft part-
Petitions of’ private Perfons, and are com-
monly endOrfed with Remiﬂ'ions to the {eve-
tail Courts Where they were properly deter:
minable. There are many of thofe Bundles“
‘of‘ Petitions, fome in the Times of Edw. I.
and Edw. IIt and more in the Times of
Edw. III. and the Kings that fueceeded him.’

Run/bl], The Statutes, or Aé’cs of Parlia-
ment themfelves, Thefe feem, as if in the

Time of Ed»). I. they were drawn up into’.

the Form of a Law in the ﬁt'f’c Inﬁa‘nce, and“
fo— aﬂ'ented to by beth Houfes, and the
King, as may appear by the very.0hferva4
tion of the Contexture and Fabrick of the
Statutes of thofe Times. But from near the
beginning of the Reign of Edw. III. tilt
very near the end of Hen. VI. they Were
not in the ﬁrft Ini’tance drawn up in the
Form of Aéts of Pariiament; but the Peti-
tion and the Anfwer were entred in the
Pariiament Rolls, and out of boch, by Ad-l'

QVice of the Judgesend Others of the King’s“

Council, the A&"’Was drawn up conformal
ble to “the Petition and A'nfvve’r,‘ and {the
,Aé’cit— felt for the; theft part entred' in g
Rol‘l’, called, T be Statute Roll, and the'Tenor
thereOf afﬁxed to Proclamation Writs, 'di}
recited to the fevera! Sheriffs to proclaim it
its a Law in their refpeétive Counties; v
,' But becaufe fometimes Difﬁculties sine?
Troubles arofe,by this exrraé’t‘ing'of t‘he'Sta-
“ t tute’
 

Ch. 1'. Qtumtuan lain of England. 19

tute out of the Petition and Anfwer 5 about
the latterend of’ H672. VI. and beginning of
Edy/21V. they took a Courfe to reduce
’em, even in the ﬁrﬂ Inﬁance, into the
fulland'compleat Form of Acts of Parlia-
ment, which was profecuted (or Entred)
cohmonly in this Form : Item qumlam Petitio
exbiéita fm’t in boa Parliamento formant mfhn in
ﬁ cominem, (/9'0. and abating that Stile, the
Method ﬁill continues much the fame,
namely; That the entire Acct is drawn up“
in Form, and f0 comes to the King for his
Affent.
The ancient Method of palling Acts of
Parliament being thus declared, I fhall now
give an Acc‘ount touching thofe Aéts of Par. Statutes
Hamen‘t that are at this Day extant of the exam» ,
Times ofI-Ien. III. Eda». I. and Ed»). 11. and
they are of two Sorts, viz,- Some of them Two
are extant of Record ; others are extant in Sorts.
‘e‘ncient Books and Memorials, but not of
Record. And thofe which are exam of Re— 1. 0f Re»
cord, are either Recorded in the proper and “mi
natural" Roll, vvz'z. tbe Statute Roll t; or they
are entred in fome‘other Roll, efpeciallyin‘
the Olaf: Roll: and Patent Rolls, 01“ in both.
Thofe that are eXtant, but nor .of‘R'ecord,
are ﬁnch as tho’ they have no Retord ex-
tant of them, but poﬂibly the fame is loft; 1' 5
yet they are preferved in ancient- Books i a
and Monuments, and in all Times have had
the Reputation and Authority oft A435 of
Parliament. , 32-3 .. f
2’- For ‘an A61: of Parliament, made? within
~ THEY: of Memory, lofes not its being f0,
1 be-

 
 

 

€112 lottery at the Ch. 1': ,

hecaufe not extant of Record, efpecially ‘
if it’bc a' general A& of Parliament. For ‘
oi general Acts of Parliament, the Courts

 

of Common Law are to take Notice with. .

out pleading of them; andlfuch A615 {hall

a- Not of never be put to be tried,.by the Record, up»~ ‘

Record.

on an Mine of Nd tie! Radial, but it fhallbe ‘
tried by the Court, who, if there be any,
Difﬁculty or Uncertainty touching it or the
right Pleading of it, are to ufe for their
Information ancient Copies, Tranferipts,
Bdoks‘, Pleadings and Memorials to infonn‘
themfelves, but nor to admit the fame t6
be put in Iifue by a Plea of Nul tie! Record.
Forges {hall-be {hewn hereafter, there are:
very many old Statutes which are admitted
and obtain as fuch, tho’ there be no, Re;
cord at this Day exrant thereof, nor yet any
Other written Evidence of the ,fame, but
what is in a manner only Traditional, as
namely, Ancient and Modern ‘Books of
Pleadings, and the common received Opi.
trim and Reputation, and the Apptobation
of the Judges Learned in the Laws: For .th
udges and Courts of Juﬂice are; ex Oﬂicio,
(bound) to take NetiCe of publick Aéts of
Parliament, and whether they are truly
leaded or nor, and therefore they are the
1 riersof v-thenr. But it is otherwife of pria
vateAas of Parliament, for they may be:
put in “Tue, and tried by the Record upon"
Nut rid Retard pleaded, unlefs they are pro:
duced EXBmpliﬁed, as was done _ in thaj’
Prince’s Cafe in my 1-.(31‘Cl'ﬁio’vk’sc 8th Rep. anti
/ _ , thereforeE

x
Ch. I. Qtommnif tam of England. 1’7

therefore the Averment of Na] tiel Record
was refufed in that Cafe. -

The old Statutes or A8cs of Parliament that
are of Record, as is before faid,are entred ei-
ther upon the proper Statute Roll, or fome
Other Roll in Chancery.

The ﬁrf’t StatutetRoll which wehave, is The Emil
in the Tower, and begins with Magna Cbarta, Statute
and ends with Edw. III. and is called Mag- R0”
ma- Rotalm Statutor’. There are ﬁve other
Statute Rolls in that Oﬁice, of the Times of
Rich. II. Hm. IV. Hm. V. Hen. VI. and
E1122). IV.

I {hall now give a Scheme of thofe Ancient
. ancient Statutes of the Times of Hen. III. Sra'mes
Edw. I. and Ed»). 11. that are recorded in “Record
the ﬁrﬁ of thofe Rolls or elfewhere, to the
beﬂ of my Remembrance, and according
to thofe Memorials I have long had by
me, viz. ‘

Magna Claarta. Magma Rot. Stat. memz’ar. 4o“
(5“ Rot. Cartar. 28 E. I. membr. 16.

Cbarta dc Fora/2a. Mag. Rot. Stat. mama. 19..
é" Rot. Cartar. 28 E. I. membr. 26.

Sat. de Glouceﬂre. Mag. Rat. Stat. membt 47-.

PVeﬂm. 2. Rot. Afag. Stat. mrmar. 47.
PVe/im. 3. Rot. Clauﬁ, 18 E. r. membrz 6.
Dorﬁ). ,

257mm”. Rot. Mag. Stat. mambr. 41. Rat.
Clauﬁ), 8 E. 3. membr. 6. Dorfo. Par: 2. Rot.
Claafo, 5' R. 2. membr. 13. Rat. Farm. 2; E, I.
membr. I}

De Mercatoriém, ﬂing. Rot. S tat. membr. 47".
In Dorﬂ). ‘

C De

 
 

18

g- we may. at the Ch. 1.

De Religiq/t}. Mag. Rot. Stat. membr. 47.

Articalt Cleri. Mag. Rot. Stat. membr. 34..
Dotﬁ) 2. Pﬂﬂ- Pat. E. I. 2. membr. 3,4. 2Pars. .
Pat. 2 E. 3. membr. If. ‘

De bit: gai ponendi jam in Aﬂiﬁs. Mag. Rot. .
Stat. membr. 4.x.

Der’nibm lwatrk. ‘Mag.Rat. Stat. memb. 37.

De defenﬁone 72m} liberi Parliant. Lila. Part.
E. 1.; 0. 32.

Sta: anram. Mag. Rot. Stat. membr. 32.

De conjunﬁi: inﬁoﬁztin Mag. Rat. Stat.
membr. 34. .
’ De Eﬁ-aetorz'baa. Mag. Rot. Stat. membr. 3 f.
Dorﬁ), é“ Rot. Claaﬂ 29 E. I. membr. 14.
Dorfo;

Stat. a'e Lincolne. Mag. Rot. Stat. memb. 32.

Stat. a’e Prijcis. Rot. Mag. Stat. membr. 33.
In Scbea’ala de libertariaw pergairendtk, ml Rat.
Clauﬂ 27 E. I. maxim 24. .

Stat. (1e Afton Burnel. Rot. Mag. Stat.

‘memlar. 46. Dot/b, é’ Rot. Claaﬂ 11 E. I.

membr. 2.
. jarameatam Vicecomz’t. Rot. Mag. Stat.
membr. 34. Dorfo, (9‘. Rot. Clauﬂ 5' E. 2.
membr. 23. ,

.Articult' Stat. Gloacq/lriat. Rot. Clauf: 2 E. 2.
Par: 2. membr. 8.

De Piﬂ that @‘Braaiatoribm. 2 Par: Clauj:
‘vel Pat. 2 R. 2. membr. 29.

De affortattt Religiafor. Mag. Rot. Stat.
membr. 33.

Mﬂm. 4. De ”Vicecomitiéa: ('5‘ Viritli cam.
Rot. Mag. Stat. membr. 33. In Dorﬁ).

Conﬁrmatione: Cbartaram. Mag. Rat. Stat-
memér. 28. ,

. De
Ch- I. atammun lama: England. :9

De Terri: Templariorum. Mag. Rot. Stat.
mama. ; I. in Dorfo, é’ Claw]: 17 E. 2. membr. 4.

Litera patem ﬁ4per priﬂ: bonomm Cleri. Rot.
Mag. Stat. memar. 3 g. In Dorfo.

De Forma mittendz' extraffaa ad Scaccar. Rot.
Mag. Stat. membr. 36. é’ membr. go. In Dorﬁi.

Statutum de Scaccar. Mag. Rot. Stat.

Statutum ale Rutlanzl. Rot. Clauﬂ 12 E. I.

Ordinatio Fore/he. Mag. Rot. Stat. memb. go.
(9' Rot. Clauf. 17 E. 2. Par: 2. membr. 3.

According to a ﬁriét Inquiry made about
30 Years ﬁnce, thefe were all the old Sta-
tutes of the Times of Hen.lIl. E5171). 1. and
Ea’w. II. that were then to be found of Re-
. cord; what other Statutes have been found
ﬁnce, I know not.

The Ordinance called Butlers, for the Butte-”'3
‘ Heir to puniﬂi Wal’t in the Life of the An— 0rd"
cel’tor, tho’ it be of Record in the Parlia- “an”
ment Book of Eda». I. yet it never wasa
Statute, nor never fo received, but only
fome Conﬁit’ution of the King’s Council or
Lords in Parliament, and which never ob—
tain’d the Strength or Force of an A8: of
Parliament. .

Now thofe Statues that enfue, tho’ moﬁ; gm“:
of ’em are unqueﬁionable Aé’cs of Parlia— “5):“;th
ment, yet are nor of Record that I know of, Record.
but only their Memorials prelerved in
ancient Printed and Manufcript Books of
Statutes; yet they are at this Day for the
melt part generally accepted and taken as
Acts of Parliament tho’ fome of ’em are
new antiquated, and of little Uie, @1ng

C l 'Tl'lt‘.

 
 

' . Me 19mm 3? the ‘ Ch. I.

The Statutes of Mertoﬁ, Marléria'ge ,
IVe m. I. Explanatio Statuti Glance-ﬁrm, De
Champertio, De *vifu Frankplegiz', De ptme (3“
Cami/1'4, Articuli Inquifz‘tioni: ﬁtper Stat. do:

‘W'Znton, Circumfpefle agam, De cli/iriffione Swo-

mrii, De Conffirationibm, De *vocam ad W’arrmm
Statut. de Carlie], De Prerogatiw Regzk, ~ De
modo faciendi Homag; De Mrdi: 6‘ Releiwm
Die: Commune: in Banco. Stat. dc Bigamis,
Die: commune: in 847200 in cafu conﬂniili. Stat.

'Hilzemidf, De qua Warranto, De Eﬂéin Calump~

m'aml. yudicium colli/lrigii, De Frangemibm
Priﬁmar’. De malefafi‘oribm in Parcis, De Con-—

, fultationibw, De Oﬁfcio Coronazorzb', De Protefiio»

nibm, Sententia 1am fuper Charms, Modm
le'vandi Fines. Statut. de Ga‘veIet, De Militz'bm,
De Vat/lo, De anno Bzﬂéxtili, De appellam, De
Extenta Manerii,Compoﬂtio Mmfearum V6] Comr

putatio Menfarum. Stat. a’e Qua PVa-rmnto, Ordi-
' natio ale Inquiﬂtiom'bm, Ordinatio dc Fore/fa, De

admenfum Terre, De dimiﬂiaﬁe Denarior. Statut.
de Q40 Warranto nae/um, Ne Reflor proﬂernat
arbores in Cwmeterio, Confuctu/Iim: é" Aﬂiﬁz de
Foreﬂa, Compoﬁtia ale Ponderibm, De Tallagio, De
'vrfu Term: (4) fer'w'tio Regzk, Compoﬁrz'o Mlmzmm

partic‘amm, De ﬁrm amortizanr1i5, Diﬁum

de Kembuorr/y, &C.

From whence we may colleét‘ thefe Two
Obfervations, viz.

Fir/f, That altho’ the Record it {elf ﬁe

,n0t eXtant, yet general Statutes made within

Time of Memor , namelyJ ﬁnce IORiCerIi
Primi, do not 10 6 their Strength, if any au~
thentical
(311.1. cinnamon m: of England.

thentical MemOi-ials- thereof are in Books,
and {econded with a general received
Tradition attei’ting and approving the
fame.

Secondly, That many Records, even of
A6115 of Parliament, have in long Proceﬂs of
Time been 109:, and poﬂibly the Things
themfelves forgotten at this Day, which
yet in or near the Times wherein they were
made, might caufe many of thofe authori-
tative Alterations in fome Things touching
the Proceedings and Deciﬁons in Law :
The original Caufe of which Change being
Otherwife at this Day hid and unknown to
us ; and indeed, Hiﬁories (and Annals) give
us an Account of the Suffrages of many Par-
liaments,whereof we at this Time have none
or few Footﬁeps eXtant in Records or Aé’t‘s
of Parliament. The Inﬂance of the great
Parliament at Oxford, about 40th of Hen. III.
may, among many Others of like Nature, be
a concurrent Evidence of this: For tho’ we
have Mention made in our Hiﬁories of ma-
ny Coni’titutions made in the {aid Parlia-
ment at Oafowl, and which occalioned much
Trouble in the Kingdom, yet we have
no Monuments of Record concerning
that Parliament, or what thofe Conﬁitu-
tions were.

And thus much {hall ferve touching thofe
Old Statutes or Lege: Scripm’, or Acts ofPar—
liament made in the Times of thofe three

C .7, Kings,

21'

M any

A as of
Parlia-
ment lcﬁ

 
 

23

 

me 119mm nt‘tbe . (311.1.

Kings, Hen. III. Edw. I. and Edw. II. Thofe
that follow in the Times of Edw. III. and
the fucceeding Kings, are drawn down
in a continued Series of Time, and are
exam of Record in the Parliament Rolls,
and in the Statute Rolls, without any re-
markable Omifﬁon, and therefore I {hall
fay norhing of them.

CH AP‘.
 

 

ca 2. qtummau rumor England. 23

 

 

CHAP. II.

Concerning the Lex non Scripta, i. e.
Tbe Common or Mnnicipal“ Law: of
ibis Kingdom.

IN the. former Chapter, I have given you The Com,
3 Then Account of that Part of the man Law.
Laws Of England which'is called Lex Scripm, CQﬂﬁﬁS
namely, Statutes 'or' Acts of Parliament, 0‘
which in their original Formation are re-

duced into W iting, and are {'0 preferv’d in

their Origin Form, and in the fame Stile

’ and Words Wherein they were ﬁrﬁ made :

I now‘ come to that Part of our Laws cal—

led, ch non Scriptn, under which I include

not only General Cuﬁoms, or the Common General
Law properly {0 called, but even thofe Cuf’toms,
more particular Laws and Cul’toms applica- And par:-
ble to certain Courts and Perfons, whereof ticular-
more hereafter *

And when I call thofe Parts of our Laws -
Leger non Scriptae, Ido n0t mean as if all Written
thofe Laws were only Oral, or communi— ‘“ 3°01“:
cared from the former Ages to the later, 6"
merely by Word. For all thofe Laws have
their feveral Monuments in Writing, where-
by they are transFerr’d from one Age to ano-
ther, and without which they would loon
lofe all kind of Certainty : For as the Civil
and Canon Laws have their Refponﬂz ‘ Pm.

Q 4 ' denim,

 
.~ 24 ' @113 many 9f the Ch. 2.

dentum, Conﬁlia (’9' Deaf/Zones, i. e. their Ca‘
‘ Inons, Decrees, and Decretal Determina-
tions extant . in Writing; lb tliofe Laws of
England which arenot comprized under the
Title of Aéts‘ of Parliament, are for the molt
part exam in Records of Pleas, Proceedings
and Judgmentg'in Bobks‘ of Reports, and
Judieial‘Deciﬁons, in Traé’cates of Learned
Men’s Arguments and Opinions, preferv’d
from ancient Times, and iiill extant in
Writing. ‘ '

But. Itherefore ﬁile thofe Parts of the
Law, Lege: up» Scripm, becaufe their Autho-
ritative and Original Inﬂitutions are not fet
down in Writing in that Manner, or with
that Authority that Act’s of Parliament are;
but they are, grown into Ufe, and have ac.
quired their binding Power and the'Force
of Laws by a long and immemorial Ufage,
and by the Strength of Cuf’tom and Recep—
tion in this Kingdom. The Matters indeed,
and the Subﬂance of .thofe Laws, are in
Writing, but the formal and obliging Force
and Power of them grows by long Cuﬁoni
and Ufe, as will fully appear in the enfuing
Difcour e. * ~ *~

Now the Municipal Laws of this King-
dom, Which I thus call Leger: mm Scriptae, are
of a vaﬁ: Extent, and indeed include in their
Generalty all thole {overal Laws which are
allowed, as the Rule and Direction of Ju-
ﬁice and Judicial Proceedings, and which
are applicable to all thofe various Subjeé‘ts,
about which Juftice is converfant. I ﬂiall,
for more Order, and the better to guide

my

Hath its
Force by
Ufage.

1h

 

‘Ww wum«-~. .. . ac
Chtgt crewman Min of. England. a;

my' "reader, diliinguilh them into Two Is.ofTwo
Kinds, viz. f Kinds.

Fir/2‘, The Common Law, as it is taken
in its proper and ufual Acceptation.
. Secondly, Thofe particular Laws appli-
cable to particular Subjeéis, Matters or
Courts, , i

1. Touching the former, raise. The Com- 1. Com-
mon Law in its ul'ual and proper Accepta- mon Law.
tion. This is that Law by which Proceed: 1” 5’“
ings and Determinations in the King’s Or- tent.
diner} Courts. of Juﬂzice are direéied and
guided, This dire? the Courfe of Difcents
of Lands, and the inds; the Natures, and
the Eittents. and Qualiﬁcations of Eﬂates;
therein alloﬁ, the Manner, Forms, Ceremo-
nies and Solemnities of transferring Eiiates
from one to another: The Rules of Settling,
Acquiring, and Transferring of Properties ;

The Forms, Solemnities and Obligation of
Contraéis; The Rules and Direéiions for
the Expoﬁtion of Wills, Deeds and A85 of
Parliament. The Procefs , Proceedings,
Judgments and Executions of the King’s
Ordinary Court: of Juﬁice 5 The Limits,
Bounds and linens of Courts, and their
Jmifdiéiions. The feveral Kinds of Temporal
Offences, and Puniihments at Common
Law; and the Manner of the Application-
of the feveral Kinds of Puniihrnents, and
inﬁnite more Particulars which extend them-
felves as large as the many Exigencies 1i)? I{he

1 ri~

 
26 “‘ " {the bfﬂlfjﬂf the ' Ch. 11’
Diﬂtributio’n of the King’s Ordinary Juﬂzice
requires. . -

And beﬁdes thefe more common and ordi-
nary ‘Matters to Which the Common Law
extends, it likewife includes the Laws ap-

licl‘ahlef‘to divers Matters of very great
idomentg'and tho’ by reafOn of that AP:-
plication, the {aid Common Law affumes
divers ‘Denominations, yet they are but
Itsiber‘IO-i Brahéhes and Parts of it; like as the“ fame
mine}? Oceang’itho’ it many times receives a'diffe-
“’55 ;~~ .~ rent'Name from the Province, Shire, Illand
or Country to which it is contiguous, yet

the‘fe‘are hut Parts of the fame Ocean.
’J'Thus the Common Law includes ‘Lex
Piefogqti-vgz, 'as ’tis applied with certain hules
‘ to that great Buﬁnefs of the King’s”fPrero-‘
gative; To ’tis called ‘Lex Foreﬂee,‘ as it is ap--
plied under its fpecial‘ and proper Rules to
the Buﬁnels of Foreﬁs; {0 it is Called Lex
Mercatoricz, as it is applied under its'propet
Rules to the Buﬁnels of Trade and‘COme‘r'ce5
and many m/ore Inﬂances of like Nature
may be given : Nay, the variohs'and'p‘arti.
cular Cuﬁoms of Cities, Towns‘a‘nd‘ Ma-
norsJ are thus far Parts of the 'Com‘fnbh‘ Law
as they are applicable to thofe pattiCular
Places, which willa‘ppear from theft: Qbfc’ro

various, viz; ' , ”

Its 35639“ j Fir/i, The Common Law does determine
2315?,” what of thofejQuﬁO'ms are good and ma-
Cuﬁoms. fohable, and? what are unreafonable and
void. Secpnu ', The Common Law gives
tothofe Cu o‘msl'that it adjudges‘reafom
a’hle‘, the Force and Efﬁcacy of their Obli-
, gation.

' _ ‘.'m*mmcmm “JWVW'V' " ' ' "7'

 
Ch. 2. Qtammon 1am 0f England. 27

gation. 77az'nlly, The Common Law de-
termines what is that Continuance 0? Time
that is fufﬁcient to make fuch a Cuﬂom.
Fourtbly, The Common Law does interpofe 4*
and authoritatively decide the Expoﬁtion,
Limits and EXtenﬁon of fuch Cul’toms.

This Common Law, though the Ufage, Norah“-
Practice and Deciﬁons of the King’s Courts ablgguc
of Jui’tice may expound and evidence it, tdte. '
and be of ~ great Ufe to illui’trate and ex-
plain it; yet it cannot be authoritatively
altered or changed but by Act of Parlia-
ment. But of this Common Law, and the
Reafon of its Denomination, more at large
hereafter.

Now, Secondly, As to thofe particular Laws idly, Par.
I before mentioned, which are applicable ”“1” ,
to particular Matters, Subjects or Courts: L‘w”v‘z'
Thefe make up the fecond Branch of the
Laws of England, which I include under the
general Term of Leger non Scriptze, and by
thofe particular Laws, I mean the Laws
Eccleﬁal’tical, and the Civil Law, {0 far
forth as they are admitted in certain Courts,
and certain Matters allow’d to the Deciﬁon
of thofe Courts, whereof hereafter.

It is true, That thofe Civil and Eccleﬁaﬁi— 1. Civil.
cal Laws are indeed Written Laws; The £56616-
Civil Law being contain’d in their Pandeéts, ﬁamca"
and the Inﬁitutions of ﬁrm-an, &c. (their
Imperial Coni’titutions or Codes anfwering
to our Leger Scriptw, or Statut .) And the
Canon or Eccleﬁaﬁical Laws 'ntained for
the melt part in the Canons and Conﬁitu~
tions of Councils and Popes, colleéted in

their

 
 

18

. me mitt-922 at the Ch.1.

De Raligiajis. Mag. Rot. Stat. membr. 47.
Articalt Cleri. Mag. Rot. Stat. membr. 34.
Dotﬁ) .2 Pan. Pat. E. I. 2. membr. 34.. 2 Par:-
Pat. 2 E. 3. membr. 1;.
De bit: qm’ ponendi jam in Aﬂiﬁs. Mag. Rot.
Stat. membr. 4.1.
DeFim'bm left/an}. -Mag.Rat. Stat. mama. 37.
De. deﬁnﬁoae Fart: liberi Parliant. Lib. Part.
E. x... ,0. 32.
Stat? Eboram. Mag. Rot. Stat. membr. 32.
, De conjmtﬁi: inﬁqfatis. Mag. Rot. Stat.
membr. 34.. 2
' De E/taetorz'bm. Mag.Rot. Stat. membr. 35'.
Dorfo, é‘ Rot. Claaﬁ 29 E. I. membr. I4.
Dorfo: .
Stat. de Lincolne. Mag. Rot. Stat. memb. 32.
Stat. tie Fri/61's. Rot. Mag. Stat. membr. 33.
In Schedula de libertatibm perquiremlté‘, '08! Rat.
Clan]: 27 E. I. membr. 24. .
Stat. (le Afton Burnel. _ Rot. Mag. Stat.
membr. 46. Dorﬁ), ('9‘ Kat. Claaf. 11'E. I.
membr. 2. ~
4 jaramentttm Vicecomit. Rot. Mag. Stat.
mem’ltr. 3'4. Dotﬁ, (9‘, Rot. Clauﬂ fE. 2.
membr. 2 3.
Ami-cult Stat. Gleam/trite. Rat. Clauﬂ 2 E. 2.
Par: 2. membr. 8.
De 1’21?me @‘Braciatoribm. 2 Par: Clan]:
'vel Pat. 2 R. 2. membr. 29.
De affortatar Religiofor. Mag. Rot. Stat.
membr. 33.
W'eft'm. 4. De ‘Vicecomitiém €47“ Viria’i meta.
Rot. Mag. Stat. membr. 33. I72 Dorﬂ).
Conﬁrmatione: Cbartamm. Mag. Rat. Stat.
memér. 28. ,

De
Ch. I. Qtamman 1am Of England. 19

De Terri: Templarz'orum. Mag. Rot. Stat.
memb. 31.571 Dorfo, @“ Clauﬂ 17 E. 2. membr. 4.

Litera patent ﬁrper przyz': bonomm Cleri. Rot.
Mag. Stat. membr. 3 3. In Dorfo.

De Formzz mittenclz' extraéfm am’ Scaccar. Rot.
Mag. Stat. membr. g6. é’ membr. go. In Dorﬁi.

Statutum de Scaccar. Mag. Rot. Stat.

Stammm ale Rutlaml. Rot. Clamﬁ 12 E. I.

Ordinatio Fore/he. Mag. Rot. Stat. memb. 3o.
(5' Rot. Clauﬂ I7 E. 2. Par: 2. membr. 3.

According to a ﬁriél: Inquiry made about
30 Years ﬁnce, thefe were all the old Sta-
tutes of the Times of Hen. III. E51222. l. and
Edw. II. that were then to be found of Re-
_ cord; what other Statutes have been found
ﬁnce, I know mm.

The Ordinance called Butlers, for the Bath's
' Heir to punilh Waf’t in the Life of the An— 0”"
cei’tor, tho’ it be of Record in the Parlia- “an“
ment Book of El»). I. yet it never wasa
Statute, nor never fo received, but only
fome Conﬁit‘ution of the King’s Council or
Lords in Parliament, and which never oh-
tain’d the Strength or Force of an Act of
Parliament. .

Now thofe Statues that enfue, tho’ mof’t gnaw”
of ’em are unqueﬁionable Acts of Parlia- HE‘S?
meat,” yet are not of Record that I know of, Record.
but only their Memorials preferved in
ancient Printed and Manufcript Books of
Statutes; yet they are at this Day for the
melt part generally accepted and taken as
Acts of Parliament tho’ fome of ’em are
now antiquated, and of little Ufe, viz;

C :t The.

 
 

:0; .,Wwy‘ “up

' . we wimp nt‘tbe‘ Ch; 1.:

The Statutes of Mertoﬁ, Marlbridge ,
W'e m. I. Explanatio Statuti Gloucqﬁ’riz, De
Cbampertio, ,De *vifu Frankplegii, De pane (5‘
Cer'rmﬁzz, Articuli Inqmﬁtiom’: ﬁ4per Stat. tie.

‘W'Znton, Circumfpec‘le agam, De dzﬂriéﬁone Satc-

can}, De C onfpiratianibm, De 'vocatzk ad PVarrmyr.
Statut. de Carlie}, De Prerogati'm chzk, < De
motlo faciendi Homag; De Mra’i: (‘2’ Releirwo-
Die: Commune: in Banco. Stat. de Bigamix,
Die: commune: in Banco in cafw conﬂmili. Stat.

rHiberm'tE, De guo Warranta, De Ejﬁin calump~

m'aml. yudicium coﬂiﬂrigiz', De Frangemibm
Priﬁmar’. De malefaéioribm in Parcis, De Con-
fultationibw, De Oﬁcio Coronatorzb', De Proteflion
nibm, Sententia 14m fuper Cbartas, Madm-
levandi Fines. Statut. de Garvelet, De Militibm,
De Vaﬂo, De anno Bijﬁxtili, De appellatia‘, De
Extenta Maneriiﬁompoﬂ‘tz'o Menfeamm veI Com,
putatio Menfarum. Stat. ale Qua Warmnto, 0721:1-

‘ natio ale Inqmﬁtionilam, Ordinatio dc Fore/fa, De

admenfum Terra, De dimiﬂioﬁe Denarior. Statut.
de BQuo PVarmnto ”mum, Ne Reﬁor proﬂermt

' arbore: in CarlameterioJ Conﬁteturlines é’ Aﬂiﬁz a'e

Foreﬂa, Compoﬁtio (1e Panderz'bm, De Tallagio, De
'vzfu Term: é‘ ﬁrvitio Regis, 'Compoﬁtia ulnnrum
é’ particamm, De ﬁrm amortizamlis, Diﬂum
de Kemlworz‘la) &C.

From whence We may colleét thefe Two
Obfervations, viz.

Fir/2‘, That altho’ the Record it felf- ﬁe

nor eXtant, yet general Statutes made within

Time of Memor 7, namelyJ ﬁnce I°Riclmrdi
Primi, do not: 10 6 their Strength, if any au-
thentical

, _.7M~V~nmv..m. a. “D
Ch. 1. @ummoniéﬁu of "England.

thentical MemOrials- thereof are in'Books,‘
and {econded with .a general received.
Tradition attef’ting and approving the
fame.

Secandly, That many Records, even of
Acts of Parliament, have in long Procefs of
Time been loft, and poﬂibly the Things"
themfelves forgotten at this Day, which
yet'in or near the Times wherein they were
made, might caufe many of thofe authori-
tative Alterations in fome Things touching
the Proceedings and Deciﬁons in Law:
The original Caufe of which Change being
Otherwife at this Day hid and unknown to
us ; and indeed, Hii’tories (and Annals) give
us an Account of the Suffrages of many Par-
liaments,vvhereof we at this Timehavg none
or few Footﬂeps aunt in Records or Act/s.
of Parliament. The Inﬁance of the great
Parliament at Oxford, about 40th of Hen. III.
may, among many Others of like Nature, be
a concurrent Evidence of this: For tho’ we
have Mention made in our Hiﬁories of ma~
ny Coni’titutions made in the faid Parlia-
ment at Oxford, and which occaﬁoned much
Trouble in the Kingdom, yet we have
no. 'Monuments of Record concerning
that Parliament, or what thofe Conﬁitu-
tions were.

And thus much {hall ferve touching thofe
Old Statutes or Leger Scripm, or Acts of Par-
liament made in the Times of more three

C 3 Kings,

23‘

<.

M any

A &s of
arlia-

ment loﬁ,

 
a: .- €32 biting? at tbs Ch. I. .

Kings, Hen. III. £12». I. and Edw. II. Thofe
tﬁat follow in the Times of Ed»). III. and
the fucceeding Kings, are drawn down
in a continued Series of Time, and are
cxrant of Record in the Parliament Rolls,
and in the Statute Rolls, without any re-
markable Omifﬁon, and therefore I {hall
fay nothing of them.

CH AP.

 
 

 

ca 2. mm Mn at England. 23

 

CHARM.

Concerning the Lex non Scripta, i. e.
The Common or Municipal” Law: of
Mir Kingdom.

IN the» former Chapter, I have given you The Cm,
a 'ih’ort Account of that Part of the man Lam,
Lawsof England which'is Called Lex Scripm, anﬁﬁs
namely, Statutes or” Acts of Parliament, M
which in their original Formation are re-
ducedinto W iting‘, and are ('0 preferv’d in
their Origin Form, and in the fame Stile
' and Words Wherein they were ﬁrl’t made :
I now‘ come to that Part of our Laws cal—
led, Lex non Scripm, under which I include
not only General Cuﬂoms, or the Common General
Law properly f0 called, but even thofe Guam”:
more particular Laws and Cul’rorns applica- A‘nd par.
blc to certain Courts and Perfons, Wh'ereof ticulan
more hereafter

And when I call thofe Parts of our Laws ,
Leger non Scriptac, I‘do no: mean as if all Written
thofe Laws were only Oral, or comrnuni— ‘“ 300%
cared from the former Ages to the later, (’5'
merely by Word. For all thofe Laws have
their feVCral Monuments in Writing, where-,
by they are transferr’d from one Age'to ano-
ther, and without which they would loon
loll: all kind of Certainty : For as the Civil
and Canon Laws have their Refponﬂz‘l’m-

C; 4- ' denim,

 
: 24 ' my: musty ettbz ”ch. 2.2

dentum, Conﬁlz'a (’9' Deciﬁones, i. e. their Ca—
. ‘nons, Decrees, and Decretal Determina-
tions extant , in Writing; f0 thofe Laws of
England which arenot 'comprized under the
Title of Aéts of Parliament, are for the moft
part extant in Records of ﬂeas, Proceedings
and Judgments, in Books of Reports, and
Judieial'Decilions, in T radiates of Learned
Men’s Arguments and Opinions, preferv’d
from ancient Times, and ﬁill extant in
Writing. ' ‘

But Itherefore ﬁile thofe Parts of the
Law, Lege: no» Sm'pm, becaufe their Autho-
ritative and Original Inﬂitutions are not ﬁst
down in Writing in that Manner, or with
that Authority that Ac’t’s of Parliament are;
but they are. grown into Uf'e, and have ac—
quired their binding Power and the’Foree
of Laws by a long and immemorial Ufage,
and by the Strength of Cuf’tom and Recep—
tion in this Kingdom. The Matters indeed,
and the Subﬁance of thofe Laws, are in
Writing, but the formal and obliging Force
and Power of them grows by long Cuﬂoni
and Ufe, as willfully appear in the enfuing
Difcourfe; - L .

Now the Municipal Laws of this King-
(1011), Which I thus call Legs: mm Scripne, are
of a val’t Extent, and indeed include in their
Generalty all thole feVCI‘al Laws which are
allowed as the Rule and Ditet‘tion of In“
Rice and Judicial Proceedings, and which ,
are applicable to all thpfe various Subieéts,
about which Juﬂice is converfant. I fhall,
for more Order, and “the better to guide

n my

Hath its
Force ‘by
Ufage.

i1

 
 

Ch. 2-- Grumman mm of England. 25

my Reader, diﬂinguifh them into Two Is.ofTwo
Kinds, 'vizn Kinds.

Firﬂ, The Common Law, as it is taken
in its proper and uﬁial Acceptation.’

Secondly, Thofe particular Laws appli-
cable to particular Subjects, Matters or
Courts,

1. Touching the former, «viz. The Com- 1. Com.
mon Law in its uliial and proper Accepta- mon Lawn
tion. This is that Law by which Proceed, 1" 5’“
ings and Determinations in the King's Or- "a“
clinmy Courts» of Juﬁice are directed and
guided. This directs the Courfe of Difcents
of Lands, and the Kinds; the Natures, and
the Extents and Qualiﬁcations of Eﬁates;
therein alIo the Manner, Forms, Ceremo-
nies and Solemnities of transferring Eﬁates
from one to another: The Rules of Settling,
Acquiring, and Transferring of Properties;

The Forms, Solemnities and Obligation of
Contraéts ; The Rules and Directions for
the Expoﬁtion of Wills, Deeds and Acts of
Parliament. The Procels , Proceedings,
Judgments and Executions of the King’s
Ordinary Court: of Juﬂice; The Limits,
Bounds and EXtents of Courts, and their
Jurifdiﬁions. The feveral Kinds of Temporal
Offences, and Punifhments at Common
Law; and the Manner of the Application
of the feveral Kinds of Punifhments, and
inﬁnite more Particulars which extend them-
{elves as large as the many ExigencieinDnﬁthe

1 r1-

 
t6 -‘ .. we ﬁatﬁnzp‘of the ‘ Ch. 2.;
DiﬁributiOn of the King’s Ordinary Juﬂice
requires. , -

Arid beﬁdes thefe more common and ordi-
naty Matters to which the Common Law '
extends, it likewife includes the Laws ap-
iljié'ahlef‘to ’divers Matters of Very great

oment5‘and tho’ by reafOn of that Ap-
plication, the [aid Common Law aﬂhmes

divers (Denominations, yet they are but
Its beg“); Brahc‘hes and Parts of it; like as the fame
mange; oceangitho’ it many times receives a'diﬂ’e-
0‘15? rent‘Name from the Province, Shire, Iﬂand
or Country to which it is contiguous, yet
the'fearie but Parts of the fame Ocean.

’.'fThus the Common Law includes ‘Lex
Pitrogatiro'a,‘as ’tis applied with certain ules
' totha‘t great Buﬁnefs of the King’s‘i’rero-é
gative; To ’tis called 'Lex Fore/lx,‘as it is ap.
piied under its {pecial and proper Rules to
the Buﬁnels of Foreﬂs; fo it is Called Lex
Mercatoria, as it is applied underits'propet
Rules to the Buﬁnefs of Trade and‘Comet'ce5
and many more Inﬁances of like Nature
may be given : Nay,‘ the various'aod‘p'arti~
cular Cuﬁoms of Cities, Townsi‘and’ Maf-
nors, are thus far Parts'of the ‘Comanh Law
as they are applicable to tbofe particular
Places, which willap‘peat from thefe Qbfe’r-

various, «viz; ‘ ‘ _
115 55¢?“ ' Fir/r, The Comm‘Qn‘ Law does determine
2315?,” what of thofe'Cnﬁo‘ms‘ are good and tea-
Cuﬁoms. fohable, and what are u‘nreafo‘nable and
void. Secemhjy‘,”The Common Law gives
to thofe Cuf’to’ms that it adjudges'reafom
ﬁle, the Force and Efﬁcacy of their Obli-
gation.

 
Ch. 2. (common lam (If England. 27

gation. 77airdly, The Common Law de-
termines what is that Continuance of Time
that is fufﬁcient to make fuch a Cuﬂom.
Fourtbly, The Common Law does interpofe «‘1
and authoritatively decide the Expoﬁtion,
Limits and Excenﬁon of fuch Cuﬁoms.

This Common Law, though the Ufage, NONIW'
Practice and Deciﬁons of the King’s Courts gblgtbut
of Juﬁice may expound and evidence it,tgte_a'
and be of great Ufe to illui’trate and ex-
plain it; yet it cannot be authoritatively
altered or changed but by Act of Parlia-
ment. But of this Common Law, and the
Reafon of its Denomination, more at large
hereafter.

Now, Secondly, As to thofe particular Laws 2dly, Par-
I before mentioned, which are applicable timid" _
to particular Matters, Subjects or Courts: “”5"“
Thefe make up the fecond Branch of the
Laws of England, which I include under the
general Term of Lege: mm Scriptze, and by
thofe particular Laws, I mean the Laws
Eccleﬁaﬁical, and the Civil Law,’ fo far
forth as they are admitted in certain Courts,
and certain Matters allow’d to the Deciﬁon
of thofe Courts, whereof hereafter.

It is true, That thofe Civil and Eccleﬁal’ti‘ x. Civil.
cal Laws are indeed Written Laws,- The =.E_cclc-
Civil Law being contain’d in their Pandeéts, Wheat
and the Inﬁitutions of ju/zznzan, &c. (their
Imperial Confiitutions 0r Codes anfwering
to our Leger Scripm, or Statut .) And the
Canon or Ecclefiaf‘tical Laws V ntained for
the molt part in the Canons and Conﬁitu-
tions of Councils and Popes, collcéted in

their

 
 

‘28

Why ac.
counted
Leger nan
Sci-£12m.

' @512 oiumpnf the - (311.2.

their Decremm Gratiani, and the Drecreral
Epili’les of Pepe-s, which make up theBody
Of their Carp”; ffuris Canonici, together with
huge Volumes of Councils, and Expoﬁtions, ‘
Decii’ions, and Traétates of learned Civi-
lians and Canonii’ts, relating to bOth Laws 5
f0 that it may feem at ﬁri’t View very im-
proper to rank thefe under the Branch of
Leger non Scriptce, or Unwritten Laws.

But [have for the following Reafon tang‘d
thefe Laws among the Unwritten Laws of
England, viz. becaufe it is moﬂ plain, That
neither the Canon Law nor the Civil Law
have any Obligation as Laws within this
Kingdom, upon any Account that the Popes
or Emperom made thofe Laws, Canons,Re-
fcripts or Determinations, or becaufe f‘fu-
ﬂim'an compiled their Corpm junk Cirvilér,
and by his Ediéts conﬁrm’d and publiih’d
the fame as authentical, or becaufe this or
that Council or Pope made thofe or theft:
Canons or Decrees, or hecaufe Gratian, 01'
Gregory, or Boniface, 01‘ Clement, did as much
as in them lie authenticate. this or that
Body of Canons or Coniiitutions; for the
King of England does not recognize any
Foreign Authority, as fuperior or equal to
him in this Kingdom, neither do any Laws
of the 1’0pe or Emperor, as they are fuch,
bind here : But all the Strength that either
the Papal or Imperial Laws have obtained
in this Kin om, is only becaufe they have
been receiﬁ and admitted either by the
Confent of Parliament, and f0 are part of
the Statute Laws of the Kingdom, or elfe

by
Ch. '2. Qtummunmw of EBgland.

by immemorial Ufage and Cuﬁom in form:
particular Cafes and CourtsJ and no Other—
wile, and therefore f0 far as fuch him are
received and allowed here, {0 far they ob-
tain and no further; and the Authority and
Force they have here is n0t founded on, or
derived from themfelves; for f0 they bind
no more with usthan our Laws bind in
\ Rome or Italy. But their Authority is founded
merely on their being admitted and recei—
ved by us, which alone gives ’em their Au;
thoritative Effence, and qualiﬁes their Obli-
gation.

And hence it is, That even in thofe
Courts where the Ufe of thofe Laws is in—
dulged according to that Reception which
has been allowed ’em a If they exceed the
Bounds of that Reception, by extending
themfelves to Other Matters than has been
allowed ’em; or if thofe Courts proceed ac-
cording to that Law, when it is controuled

by the Common Law of the Kingdom:

The Common Law does and may prohibit
and punifh them; and it will not be a fuf-é
ﬁcient Anfwer, for them to tell the King’s

Courts, that 7Mﬂi7‘23ﬂﬂ or Pope Gregor] have,

decreed otherwife. For we are nor bound
by their Decrees further, or otherwife than
~ as the Kingdom here has, as it were, tranf-
pofed the fame into the Common and Mu—
nicipal Laws of the Realm, either by Ad-
. million of, or by Enaﬁing the fame, which
is that alone which can make ’em of any
Force in England. I need nor give Particu—
lar Inﬁances lurein 5 the Truth thereof is
' plain

29

Allowed
by Ufagf:
only.

Add con-
troul’d by
the Com.
monLaw

 
3e manning of the . CI”. ,

plain and evident, and we need go no fur- >
ther than the Statutes of 24 H. 8. can. 12. ,
25 H. 8. c. 19, 20,2x. and the learned Notes g
of Selim upon Elem, and the Records there i
cited 3 nor fhall I {pend much Time touch-
ing the Ufe of thofe Laws in the feveral 3
Conrts of this Kingdom: But will only
brieﬂy mention fome few Things concern-
ing them.
3 Courts There are Three Courts of Note, wherein
“ﬁng thc the Civil, and in one of them the Canon or
at: and Eecleﬁai’rical Law, has been with certain
Law?“ Rel’criétions allowed in this Kingdom, viz.

. If}. The Courts Eccleﬁaﬁical, of the Biihops
and their derivative Ofﬁcers. 2511}. The Ad—
miralty Court. gally. The Caria Militaris, or
Court of the Conﬁable and Marfhal, or

.. Perfons commiﬁioned to exercife thatju-
rifdiétion. I {hall touch a little upon each
of thefe.

r- Eccle. Erﬂ, The Eccieﬁaftical Courts, they are
ﬁaﬂical of two Kinds, viz.- zﬁ. Such as are derived
- C0“_“5- immediately by the King's CommiHion;
‘ Kmds' fuch was formerly the Court of High Com—
miﬂion, which tho’, without the help of an

Acct of Parliament, it could not in Matters

of Eccleﬁaﬁical Cognizance ufe any Tem-

poral Puniﬂiment or Cenfure, as Fine, Im—
prifonment, d‘c. Yet even by the Common

Law, the Kings of England, being delivered

from Papal Uﬁtrpation, might grant a Com-

mimon to hear and determine Eccleﬁaﬂical

Caufes and Offences , acc0rding to the

King’s Eccleﬁaftical Laws, “as Cawdry’:

Cafe, Cook’s 5th Report. 2:11]. Such as are

4 no:

 

 

f I ...~ v,»f%wﬁw;wmm~-—memrv‘- ,_.-, ,
 

 

Ch. 2. Grumman mi of England.

nor derived by any immediate Commiﬂion
from the King; but the Laws of England
have annexed to certain Ofﬁces, Eccleiiaf’ti.
cal Jurifdiétion, as incident to fuch OfﬁCes:
Thus every Bifhop by his EleC’tion and Con-
ﬁrmation, even before Confecration, had
Eccleﬁaf’ticalJurifdié‘tion annex’d to his Of-
ﬁce, as ffua’t’x Ordinarim Within his Diocefe;
and divers Abbots anciently, and moﬁ
Archdeacons at this Day, by Ufage, have
had the like Jurifdiétion within certain
Limits and Precincts.

But altho’ their: are yudicer Ordinariz‘, and
have Eccleﬁaﬂical jurifdiétion annex’d to
their Eccleﬁaﬁical Ofﬁces, yet this Jutif—
diéﬁon Eccleﬁai’tical 2'72 Fora Exteriori is de-
rived from the Crown of England: For
there is no External Juriidie’tion, whether
Eccleﬁaﬁical or Civil, within this Realm,
but what is derived from the Crown : It is
true, both anciently, and at this Day, the
Procefs of Eccleﬁaﬁical Courts runs in the
Name, and Iﬂ'ues under the Seal of the
Bifhop; and that Practice ﬁands [0 at this
Day, by Vertue of feveral Aé’cs of Parlia~
merit, too long here to recount. But that
is no Impediment of their deriving their
Jurifdié‘tion from the Crown; for till 27 H. 8.
cap. 24. the Procefs in Counties Palatine
ran in the Name of the Counts Pala—
tine, yet no Man ever doubted, but that
the Palatine Jurifdiétions were deriv’d from
the Crown.

Touching the Severance of the Bifhops
Conﬁfiory from the Sheriff’s Court: See

the

3]

Qt.

Theirju-
rifdiéiion
derived
from the
Crown-

W‘—

 

 

___.«./ « —
' ___v . -
- V..-

'v.

E
it.
E:

‘2': T1;

.4—
~
.W

s;’;-.‘__..“"‘

-_‘._r-_.r .

<- .,—:A ,—,-g-.< ,avm
4va ‘ ‘l I .
.

 
32. mar tummy— nf- the Ch. 2. {i

the Charter of King Wall; 1. and Mr. Selden’s 12‘;
Nores on Eadmerm. ‘ v .3

Eccleﬁa- Now the Matters of Ecclefiaﬁical Jul-if:- i

ﬁjcallu' diction are of Two Kinds, Criminal and .

nfdtfhon CiVil.

253:0 The Criminal Proceedings extend to fecli ‘

1 Crimes, as by the Laws of this Kingdom are :
"‘E- Cn' ofEccleﬁaflical Cognizanee ;as Heretic, For-
mmal' nication, Adultery, and fome others, where- i
in their Proceedings are, Pro Reformation:
~Momm 29'. pro Salute Aninﬁe; and the Reafon
why they have Conuzance of theft: and the
like Offences, and net of others, as Mur- l
ther, Theft, Burglary, etc. is not fo much
from the Nature of the Offence (for furely
the one is as much a Sin as the Other, and
therefére if their Cognizance were of Of.
= fences quatemrr pacmta contra Deum, it fhould'
exten to all Sins Vvhatfoever, it being
again God’s Law). But the true Reafon
is, becaufe the Law of the Land has in;
dulged unto that Jurifdié’cion the Conu—
zance of fome Crimes, and not of others.
The Civil Cauies committed to their COgi

23, Civil. nizance, wherein the Proceedings are 4d In-

, ﬂamiam Farris, ordinarily are Matters of
Tythes, Rights of Inflitution and Induéli‘
on to Eccleﬁaf’tical Beneﬁces, Cafes of Ma—_
trimony and Divorces, and Teflamentary
Caufes, and the Incidents thereunto, as In-
ﬁnuation or Probation of Tei’taments, Con.
troverﬁes touching the fame, and of Lega—
cies of Goods and Monies, (’77:.

Altho’ de jure Commum' the Cogni‘zanee
of Wills and Teﬁaments does nor belong
3 to

 

 

 
(311.112. amnion-111711.116 England.

to the Eccleﬁal’ticai Court but to the Tem-
fioral or Civiljurifdiétion; yet de Conﬁtem—
dine Anglia? part/act mlJz/J ce: Eccleﬂ- zﬂzcos,
as Linwood himfel‘r a171(1:8 ixcrcif [1e Teﬂzz-
771077233011; 4. in Glﬂii. So that 1t 11 the Cu—
f’tom or Law of England that gives the EX-
tent and Limits ()1 their excemal jurifdi-
alon 1n Fora (0172‘1-77fiofo.

The Rul it: by which they proceed, is the
Canon Law, but not in its fui-l llatitude
and only f0 fa1 as it i’tands uncorrected ei
ther by cont my Acis oi Parhanwnt 01 the
Common [aw and Cui’tom 0F Enrlziml for
there are divers Canons made in ancient
Times, and Dccretals oi the Popes that
never we1e admitted here in EMU/417711, and
'panicularly in relation to Tythes; many
’I hings being by our Laws P1iviledg d from
Tythes, which by the Canon Law are
chargable, (as Timber, Oar, Coals, (ye)
without a Special Cuﬁom fubjeé’ting them
thereunto.

Where the Canon Law or theStylm sz'ze
is ﬁlent the Civil law 15 taken in as :1 Di-
rector efpeciail y in Points of Expoﬁtion
and Determination touching Wills and
Legacies.

But Things that are of Temporal Cogni~
zance only, cannot by Charter be deliver-
ed over to Eccleliaiiieal Juriidic’cion, nor be
judged accmding to the Rules of the Canon
0r Civil Law, which 15 4117‘ch Exdmm, and
net competent to the Nature of Things of
Common Law Coonizance: And therefore,
Mic. 8 H 4. Rat. 72.. comm Rage, when the

D Cham-

3?

$1

They Ui‘e
1112(1‘1111111
Law,

AndCivil.

Nor to
judge of
Temporal
Matters.

 
 

 

 

 

 

 

 

 

3+

Pde
ledge of
the Uni-
vcrﬁtyt

Sentence
enforced.

' ’tis thereby that at this Day they have at

@312 119mm 0f the Ch. 2.

Chancellor of Oxﬁrd proceeded according
to the Rule of the Civil Law in a Cafe of
Debt, the Judgment was reverfed in B. R.
wherein the Principal Error aHigned was,
becaufe they proceeded perLegem Ci‘vﬂem ubi
quilz'bét ligem Domini Regzér ,Regm' [Mi Anglia! in
guidafcwzque placiti: (2/9“ quereli: inﬁa bat: Reg-‘-
mmz ﬁzc‘fza é emergentiém (1e 7147s trafi‘ari (161762!
per Communem Legem Anglia}; and althO’King
H. 8. I4 Anna Regni ﬁti) granted to the Uni~
veriity a liberal Charter to proceed accord—
ing to the Ufe of the Univerﬁty, viz. By ‘
a Courfe much conform’d to the Civil Law 5 :
yet that Charter had not been fuﬂicient to 1
have warranted fuch Proceedings without!
the Help of an Aét of Parliament: And!
therefore in ‘1; Elie. an Act paﬂ'ed, where-
by that Charter was in effeét enaéted; rand “

kind of Civil Law Proceedure, even in
Matters that are of themfelves of Common
Law Cognizance, where either of the Pain
ties to the Suit are priviledg’d.

The Coercion or Execution of the Sen-
tence in 'Eccleﬁaﬁical Courts, is only by
Excommunication of the Perfon contumam
tious, and upon Signiﬁcation thereof intow
Chancery, a Writ dc Excommunimto capitmio‘
illites, whereby the Party is i‘mprifoned till %
Obedience yielded to the, Sentence. But
beﬁdes this Coertion, the Sentences of the
\Eccleﬁaf’tical Courts touching fome Mat» .
ters do introduce, a real Eﬂtdt, without
hny other Execution; as a Divorce,a Vimula
Matrimonii for the Caufes of Confanguinity,

; , F't‘ev-

 

 

 

gnu-um,» er 7.....-
ch. 2. Qtummun iLatn nt‘SEngland- '35

Precontraét, or Frigidity, do inducea legal
Diffolution of the Marriage; fo a Sentence
of Deprivation from an Eccleﬁai’tical Bene-
ﬁce, does by Vertue of the very Sentence,
without any Other Coettion or Execution,
introduce a full Determination of the Intef
ret’t of the Perfon deprived.
And thus much concerning the Eccleﬁag
ﬁical Courts, and the UH: of the Canon
and Civil Law in them, as they are the
Rule‘and Direction of Proceedings therein.
Secondly, The Second Special Jurifdié’tion my, The
wherein the Civil Law is allow’d at leaﬁ; Admiral
as a Direcftor or Rule in fome Cafes, is the Juriﬂlﬁi'
Admiral Court or Jurifdiétion. 'i‘fhis Jurif— m“
diétion is derived alfo from the Crown of
England, either immediately by Commil'ﬁon
from the King, or mediately, which is (e
veral Ways, either by Commiﬂion from the
Lord High Admiral, whofe Power and
Conﬁitution is by the King, or by the
Charters granted to particular Corporations
bordering upon the Sea, and by Commifa
ﬁon from them, or by Prefcription, which
neverthelefs in Prefumption of Law is dem
rived at lirf’t from the Crown by Charter
nor now exrant. ~
The Admiral Jurifdictionis ofTwoKinds, Q?” We
Iviz. ﬁturiﬂliério Voluntaria, which is no Other I‘mds'
but the Power of the Lord High Admiral,
as the King’s General at Sea over his Fleets;
0r Afflﬂ’i/{letcfw Conrcnriqﬂz, which is tiat Powcn
of juriidit‘tion which the Judge of the Ad».
miralty has in Faro errcrzt'iq/b; and what i
have to fay is of this later "i uriiilit‘rion.
D 2, The

 
 

eat mum at“ the Ch; 2;
The Jurifdié’cion of the Admiral Court,

How Re- as to the Matter of it, is conﬂnedbythe
ﬁrained- ,Laws of this Realm to Things done upon

The
Ground
of its
Autho-
Iity.

the High Sea only; as Depredations and
Piracies upon the High Sea; Offences of
Maﬁers and Mariners upon the High Sea ;

' Maritime Contraéts made and to be eXe—

cuted upon the High Sea; Matters of Prize
and Reprizal upon the High Sea. But

touching Contraéts or Things made within

the Bodies ofEnglz'ﬂJ Counties, or upon the
Land beyond the Sea, tho’ the Execution

thereof he in {cute Mealhre upon the High

SeaJ as Charter PattiesJ or Contraéts made
even upon the High Sea, touching Things
that are not in their own Nature Maritime,
as a Bond or Contrac“: for the Payment of
Money; f0 alfo of Damages in Navigable
RiversJ within the Bodies of Counties,
Things done upon the Shore at Low-Water,
Wreck of the Sea, tire. Thefe Things be-
long not to the Admiral’s Jurifdiétion ,: And
thus the Common Law, and the Statutes of
1;; Rich. 2. cap. 15. liRiC/J.Z. cap. 3. conﬁne

' and limit their Jurifdittion to Matters Mari—

time) and fuch only as are done upon the

High Sea. . ,
This Court is n0t bottom’d or founded
upon the: Authority of the Civil Law, but
has heth its Power and Jtlrifdiétion by the
Law and Cuﬁom of the RealmJ in fuch
Matters as are proper for its Cognizance;
and this appears by their Procefs, viz. The
Arrei’t of the Perfons of the Defendants as
well as by Attachment of their Goods 5 land
1 e-

F- F -—'\\-“-H —.- _ ,,
011.2; Qtummun lﬁm'ﬂf England. 37

likewife by thofe Cuf’toms and Laws Mari-
time, whereby many of their Proceedings
are directed, and which are nor in many
Things conformable to the Rules of the
Civil Law; fuch are thofe ancient Laws of
Oleron, and Other Cuf’toms introduced by
the Practice of the Sea, and Stile of the
Court.

Alfo, The Civil Law is allowed to be the
Rule of their Proceedings, only foafar as
the fame is not contradicied by the Statute
of this Kingdom, or by thofe Maritime
Laws and Cuf’toms, which in fome Points ‘
have obtain’d in Derogation of the Civil
Law: But by the Statute 28 Hm. 8. cap. 1;.
all Treafons, Murders, Felonies, done on the
High Sea, or in any Haven, River, Creck,
Port or Place, where the Admirals have,
or pretend to have Jurifdiif’cion, are tobe
determined by the King’s Commiﬂion, as
if the Offences were done at Land; ac—
cording to the Courfe of the Common
Law.

And thus much {hall ferve touching the
Court of Admiralty, and the Ufe of the
Civil Law therein,

‘ Wain/l], The Third Court, wherein the 3. The
Civil Law has its Uie in this Kingdom, is Military
the Military Court, held before the Con- C011“-
ﬁable and Marfhal anciently, as the ﬂirta’icii;
Ordinarii in this Cafe, or Otherxyiie before

the King’s ~Commiﬂioners of that jurif—
diétion, as fad/7055 Delegazi. ' _

iogv ‘ ,. The

 
 

38

Its Jurif-
didtion.

Negative-
3Y- a

@312 {patent of the Chm;

The Matter of their Jurifdid’tion is de-
clared and limited by the bratutes of 8 R. 2.
cap. s, 5)“ I; R. 2. cap. 2. And not only by
thofe Statutes, but more by the very Com-
mon Law is theirjurifdietion declared and
limited as follows, quiz.

Fir/Z, Negatively: They are not to med-
dle "with any Thing determinable by the
Common Law : And therefore, in as much
as Matter‘of Damages, and the Quantity
and Determination thereof, is of that Conua ‘

‘ zance; the Court of Con’f’table and Mar-

Afﬁrma-
tively.

ﬂial cannot, even in fuch Suits asare pro-
per for their Conuzance, give Damages
againf’t the Party convicted before them,

and at mof’t can only order Reparation in

Point of Honour, as Mendacium ﬁln‘ ipﬁ im-
ponere : Neither can they, as to the Point of
Reparation, in Honour, hold Plea of any
fuch Words or Things, wherein the Party
is relievable by the Courts of the Common
Law. .

Secondly, Aﬁirmatively : Their Jurifdié’cion
extends to Matters of Arms and Matters of
War, viz. '

Firﬂ, As to Matters of Arms (or He~
raldry ), the Conﬁable and Marihal had'
Conuzance thereof, rw’z. Touching the
Rights of Coat—Armour, Bearings, Creﬂ‘s,
Supporters, Pennons, é'c; And alfo touch- ‘
ing the Rights of Place and Precedence, in
Cafes where either Aé’cs of Parliament or
the King’s Patent (he being the Fountain;

o

 
Ch. 2; 60111111911 mm at England. 39

of Honour) have nor already determinedit,

for in fuch Cafes they have no Power to al-

ter it. Thofe Things were anciently, al-

lowed to the Conuzance of the Conﬁable Ofﬁce 3
and Marlhal, as having fome Relation to Co e
Military Aﬁ‘airs'7 but f0 reﬂrain’d, that and 1;!”
they were only to determine the Right, 'ﬂm'
and give Reparation to the Party injured

in Point of Honour, but not to repair him

in Damages.

But, Secondly, As to Matters of War. The
Conf’table and Marfhal had a double Power,
'wz” \

I. A Minil’cerial Power, as they were
Two great ordinary Oﬂicers, anciently, in
the King’s Army; the Conﬁable being in
Effect the King’s General, and the Marfhal
was imployed in marlhal’ling the King’s
Army, and keeping the Lift of the OfliCers
and Soldiers. therein; and his Certiﬁcate
was the Trial of thofe whofe Attendance
was requiﬁte, Vida Littleton, §. 102.

Again, 2. The Conﬂable and Marfhal
had alfo a Judicial Power, or a Court
wherein feveral Matters were determinae
ble: 'As 1]}, Appeals of Death or Murder
committed beyond the Sea, according to
the Courfe of the Civil Law. zdly, The,
Rights of Prifoners taken in War. 341], The
Offences and Mifcarriages of Soldiers,
contrary to the Laws and Rules of the Are.
my : For always preparatory to an actual a
War, the Kings of this Realm, by Advice
of the Conﬁable (and Marlhal‘), were ufed
to compofe a Book of Rule: and Order: for

C 4 the

\

 
 

4o

OF Law
Martial
g i

‘ ﬁbemx’ttnzyuf tbs Ch. 2.’

the due Order and Difeipline of their Ofﬁ-
cers‘ and boldiers, together with Certain
Penalties on the Offenders; and this was
Called, Mai/{5.31 Law We have extant in
the Black Book of the Admiralty, and elfe—
Where, fevet‘ai Exemplats of fueh Military
Laws, and efpecia‘iiy that‘of the 9th of
Ric/a. 2. compofed by the King, with the
Advice of the Duke of Lama/fer, and
Others.

But touching theBuﬁneﬁ of MartialLaW,
thefe’ Things are to be oblerved, viz.

/ Fir/i, That in Truth and Reélity it isnot
a LawJ but fomeching indulged rather than
allowed as a Law; the¢°Neceﬂity of Go—
vernmentJ Order and Difcipline in an Ar-
ray, is that only which can give thofe Laws
3? Countenance, 33:05! enim Nettjﬁms cogit
JKZfEV/t’llf.

Secondly, This indulged Law was only to
exrend to Members of the Army, or to
thofe of. the oppoﬁte Army, and never was
f0 much indulged as intended to be (exe—
cuted or) exercifed upon Others; for Others
who were not lifted under the Army. had
no Colour of Realbn to be bound by Mili-
tary Conﬁitutions, applicable only to the
Army; whereof they Were nor Parts, but
they Were to be order’d and govern’d ae—
eording to the La’ws to which they were

‘ ﬁlbiéﬁ,‘ thoughit were a Time of War.

Tight-[[93 That’the Exercife of- Martial
Law, whereby any Perfon fhould lofe his
Life or. Member, or Liberty, may-net be

pep.
Ch. 2.“ qtamman iLam nf’England.

permitted in Time of PeaceJ when the
Kings Courts are open for all Perlons to
receive Jui’tiee, according to the Laws of
the Land. This is in Subﬁance declared by
the Petition of Right, g Car. 1. whereby
fuch Commillions and Martial Law were
repealed and declared to be contrary to
Law: And accordingly was that famous
Cale of Edmond .Larl of Ktmg who being
taken at Pomﬁ-cr, 13 1551.2. the King'and
divers Lords proceeded to give sentence
of Death againﬂ himJ as in a kind of Mi“,
litary Court by a Summary Proceeding ;-
which Judgment was afterwards in 1 Ed. ;.
reversd in Parliament: And the Reafon of
that Reverfal ferving to the Purpofe in
Hand, I (had here infer: it as entered in the
Record, viz”

Qua/1 cum (infamy; bomo Zigem Domini Regi:
Pro Sedition/'52“) C'Ifc tempura pacts mptm 5)’ in
gmmmq; Curie Dwmfni chz's (la/Sm fmrit (1e
ejufmodi'Seditimibm (37“ 1:121} Ft [ca/i1; 259i impcﬁtzk
per Legem (9‘ Coy/utmdim Regn‘i arrcéfnri deéet
0' m1 Rag/mez‘emm added, Er imie Per Commu—
nem Legem, 1177frqztcz‘m fmrir zMorti‘zm’judimml’
(hi/(N) ac. Una’c cum zzc‘fw'z'um [if 0 muni-

feﬂwm gum! for "7/1 témpm qua impoﬂtttm fm't ei- I

blew Comiti law/pier May/.1 (5” Facinom feciﬂé, ml
teMpm in 7140 caprm fair 5‘ is; 73/0 Marti adju—
4112mm: ﬁzz-t, fair hire/Mm Pita/5 ma‘ximm, Cum per
forum tempt” prediffwm (9" Cancellaria é“ alize
lac. Cut/id? Domiﬂi 7‘?th zzpzrrze fuer’ in quibM'
wiliber Lax ﬁgbtztarﬂwt'ﬁeri confmvit, ‘ Nee idem
_ 130577572245 Rex (mg-1mm tempare i110 am: Wexillzla‘
explicate:

4i

 
42' m): miftnzp of the ch. 2':
eat/9113mm Eguz‘mlmt, é’c. And accordingly
the judgment/was revers’d; for Martial
Law, which is rather indulg’d than allowed,
and that only in Cafes of Neceliity, in
Time of open War, is not permittbd in
‘ Time of Peace, when the ordinary Courts’
of Jultice are open. '

In this Military Court, Court of Ho:
nour, or Court Martial, the Civil Law has
been ulbd and allowed in fuch Things as
belong to theirjurifdiétion ', as the Rule or-
Direé’cion of their Proceedings and Deci—
ﬁons, f0 far forth as the fame is not con-
trouled by the Laws of this Kingdom, and
thofe Cuilsoms and Ufages which have ob~
tain’d in England, which even in Matters of
Honour are in 'fome Points derogatory to
the Civil Law. But this Court has been
long dilufed upon great Reafons.

\ And thus I have given a brief Profpeé‘t of

thefe Courts and Matters, wherein the

Canon and Civil Law has been in fome

Meaﬁire allowed, as the Rule or Direction

of Proceedings or Decilions: But although

in thefe Courts and Matters the Laws of

England, upon the Reafons and Account be-

fore exprelfed, have admitted the Ufe and,

Rule of the Canon and CivilLaw; yet even

herein alfo, the Common Law of England

Prebemi- has retain’d thofe Sigmz Superioritam, and the

26:30:: Preference and Superintendence in relation
monLaw. to thofe Courts: Namely,

,, ”1,9. As the Laws and Statutes of the
Realm have prefcribed to thofe Courts their

Bounds.

 
c1]. 2. QEammun 1am of England.

Bounds and Limits, fo the Courts of Com-
mon Law has the Superintendency over
thofe Courts to keep them within the Li-
mits and Bounds of their feveral Jurifdi~
&ions, and to judge and determine Whether
they have exceeded thofe Bounds, or not ;
and in cafe they do exceed their Bounds,
the Courts at Common Law iffue their
Prohibitions to reﬁrain them, directed ei-
ther to the Judge or Party, or both: And
alfo, in cafe they exceed their Jurifdiétion,
the Ofﬁcer that executes the Sentence, and
in fome Cafes the Judge that gives it, are
punilhable in the Courts at Common Law 5
fometimes at the Suit of the King, fome-
times at the Suit of the Party, and fome-
times at the Suit of bOth, according to the
Variety and Circumﬁances of the Cafe.
24/7. The Common Law, and the Judges
of the Courts of Common Law, have the
Expoﬁtion of fuch Statutes or Acts of Par-
liament as concern either the Exrent of the
Jurifdiciion of thofe Courts ( whether Ec~
cleﬁaﬁical, Maritime or Military) or the
Matters depending before them; and there-
fore, if thofe Courts either refufe to allow
thefe Acts of Parliament, or expound them
in any Other Senfe than is truly and properly
the Expoﬁtion of them, the King’s Great
Courts of the Common Law (who next
under the King and his Parliament have
the Expoﬁtion of thofe Laws) may prohibit
and controul them.
And thus much touching thofe Courts
wherein the Civil and Canon Laws are al-
lowed

43

 
 
  
 

 

  
   
  
  
 
 
 
  
  
  
 
 
 
   
  
  
 

 

ﬁbeﬂﬁﬁﬁzy as we ’ Ch. 5.:

lowed as Rules and Diteé’cions under the
Reﬁriétions above-mentioned: Touching
which, the Sum of the Whole is this :

Firﬁ, That the Jurifdiétion exercifed in
thofe Courts is derived from the Crown of
England, and that the laf’t Devolution is to
the King, by Way of Appeal.

Seawally, That although the Canon or
Civil Law be refpeetively allowed as the ‘
Diree’tion or Rule of their Proceedings,
yet that is not as if either of thofe Laws
had any original Obligation in England,
either as they are the Laws of Emperors,
Popes, or General Councils, but only by
Venue of their Admiﬂion here, which is
evident; for that thofe Canons or Imperial
Conﬁitutions which have not been received
here do not bind,- and alfo, for thathy fe-
veral contrary Cuﬂoms and Stiles ufed hereJ ‘
many of thofe Civil and Canon‘Laws are
comptrouled and derogated.

Emily, That although thofe Laws are
admitted in fome Cafes in thofe Courts, yet
they are but Lege: ﬂab graviori Lege; and the

, Common Laws of this Kingdom have ever

ohtain’d and remind the Superintendency
over them, and thofe Sigm Superioritnm‘ be-
fore-mentioned, for the Honour of the
King and the Common Laws of England.

    

CHAP.

 
 

 
Chg. eamman turn of England. ‘

 

C H A P.’ HI.

Concerning the Common Law of England,
itr Uﬁ and Excellence, and tbe Reafan

of it: Denomination.

COme now to that Other Branch of our

Laws, the common Municipal Law of
this Kingdom, which has the Superinten—
dency of all thofe Other particular Laws
ufed in the before—mentioned Courts, and
is the common Rule for the Adminiﬁration
of common Juﬁice in this great Kingdom;
of which it has been always tender, and
there is great Reafon for it,- forit is not
only a very juﬁ: and excellent Law in it
felf, but it is ﬁngularly accommodated to
the Frame of the Englzﬂ: Government,land
to the Dilpoﬁtion of the Englzﬂa Nation,
and inch as by a long Experience and Ufe
is as it were incorporated into their very
Temperament, and, in a mannerJ become
the Complexion and Conflitut’ion of the
Euglzﬂ; Commonwealth.

lnfomuch, that even as in are naturelBody
the due Temperament and Conﬁitution does
by Degrees work out thofe accidental Dill
cafes Which fometiznes happenJ and do re-
duce the Body to its juPt State and Conﬂi-
turion; f0 when at any Time through the
Errors, Diﬁempers or Iniquities of Men or
Times,

.

4-5

 
 

46

mac niaazytf the Ch. 3'.

Times, the Peace of the Kingdom, and
right Order of Government, have received
Interruption, the Common Law has waited
‘and erught out thofe Diﬂempers, and re- '
duced the Kingdom to its juf’t State and
Temperament, as our prefent (and former)
Times can ealily witneﬂs.

This Law is that which aﬂ'erts, main-
tains, and, with all imaginable Care, pro-
vides for the Safety of the King’s Royal Per-
fon, his Crown and Dignity, and all his juit
Rights, Revenues, Powers, Prerogatives and
Government, as the great Foundation (un—
der God) of the Peace, Happinefs, Ho'-
xnour and Juﬁice, of this Kingdom; and
the Law is alfo, that which declares and
ailerts the Rights and Liberties, and the
Properties of the Subjeé’c; and is the jui’t,
known, and common Rule ofjul’tice and
Right, between Man and Man, within this
Kingdom.

And from hence it is, that the Wifdorn
of the Kings of England, and their great
Council, the Honourabie Houfes of Parlia-
ment, have always been iealous and vigilant
for the Reformation of what has been at
any Time found defeé’tive in it, and ft.) to
remove all fuch Obl’tacles as might obftruét
the free Courfe of it, and to fupport, coun-
tenance and encourage the Ufe of it, as
the belt, fafel’r and truel’t Ruleof Jul’tice in
all Matters, as well Criminal as Civil.

I {hould be too Voluminous to give thofe
feveral Inﬂances that occur frequently in
the Statutes, the Parliament Rolls, Parrd

‘ ar-
(311.3. Grumman lain of England.

Parliamentary Petitions, touching this Mat-
"'ter; and [ball therefore only inﬂanee in
fome few Particulars in both Kinds,
‘viz. Criminal and Civil: And Firﬁ, in
Matters Civil. A

In the Parliament 18 E51. 1. In a Petition
in the Lords Houle, touching Land between
I‘fztgb Lowtber and Adam Edingtborp: The
Deteridantalledges, Thatif the Title {hould
in this Manner be proceeded in, he ihould
lofe the Beneﬁt of his Warranty; and alfo,
that the Plaintiff, if he hath any Right,
hath his Remedy at Common Law by
Ailize of Morrdomﬂor, and therefore de~
mands Judgment, Si (1e Libero Tenemem‘o de—
bear Me ﬁne brew Refpondere; and the Judg—
ment of the Lords in Parliament thereupon
is entered in thefe Words, rviz. Er qoia ac’i‘io
ale prediﬂ‘o Yenemento petendo (’9' etiam fuum re-
cuperare, ﬂ quid booere debeot fuelpoﬂit eidem
Adce per Aﬂfom mortir Anteceﬂori: competere
(leoet mo eﬂ juri con/onum 'vel baﬁe‘nm in Curio

47

1. Civil
Cafes.

ijfa uﬂmt’ quad aliqm'r fine Lege Comm/mi, 59’ >

Bre‘vz' do Canadian}: do libero Tenememo ﬁlo re-
ﬂora/loot @' moxime 1'74 Coﬁz 1117i Brew/e zle Cancel-
lorio Locum [where pore/i, diﬁum q} przefoto
Adar good ﬁoi perquimr per Bre-ve ale Cancelloria,
ﬂ [551' raiderir Expedc‘rz're.

Rot. Par]. U; R. 2. N0 IO. Adam Chaucer
preferred his Petition to the King and Lords
in Parliament, againﬁ Sir Robert Knolles, to
be relieved touching a. Mortgage, which he
i'uppofed was {at‘istiedj and to have Rei’titu-
tion of hisiands. The Pefei‘idantappeared,
and upon the feveral Aliegations on both
' Sides,

 
 

 

ma ofﬁng? of the ‘ Chg;

Sides, the Judgment is thus entered, w‘z. Er
apre: les‘ Raiﬂms‘ (9“ 1e: Allegeonce: ole l’rm party
'é' dc l’autre, y femlrle-s a Sez’gneur: do Parkman;
que le olit Petition ne eﬂ‘oit Petition ‘du Parlement,
deim glue le matrier en ice! comprize douit eﬂre
difcufé per le Commune Le]. Et pm ceo agard
fair que le dit Robert iroz’t' wt famjour 2J9“ que
le 512‘! Adam no prena’roit rim per ﬁz ﬁrit icy, ez'n:
qua i1 ﬁreroif per le Commune Ley fi i1 [147 femHoit
ceo foire. Where we mayhote, the Words
are Dom} eﬂre, and n0: Poet ejl're difcuﬂé per
[2, 0"6.

Rot. Porl. so Ed. ;. N° 4.3. AJudgment
being given againﬁ the Bifhop of Norwich,
for the Archdeaconry of Norwich, in the
Common Bench, the Billtop petitioned the
Lords in Parliament, that the Record might
be brought into that Houfe, and to be re~
verfed for Error. Er 6,1110] o [my cﬁ‘oitﬁn [ement
Raf/19072:!“ per corrzmorz rid/1km o'er i]: [or Stuﬂices 6/146
f2 Error 3! for/fﬂ o/crm a ﬁne force per le Le] de
Angleterre tiel Error fmt wire on Porlcment
immerliotemrm per (220] (ie Error aim on Bank Ie ‘
Roy, é” en mt! port ail/Jory, Mir/1'16 Cafe ave-
noit 7149 Error for}? foit en Bank [6 Roy adongue cea
form amma’e: err Porlrmmt.

And let any Man but look over the Rolls ‘
of Parliament, and the Bundles of Petitions
in Parliament,‘of the Timest Edi. EdJI.
Ed. III. Hen. IV. H. V. @' H. VI. he will ﬁnd 3
Hundreds of Anfwers of Petitions in Par-
liament concerning Matters determinable
at Common Law, endorfed with Anfwers
to this, or the like Effect, 'oz'zn Suez, room a le

1 Com-

 
Ch. 3'. Qtamumn 11,831 Of England. 49

Commune Le]; ﬁguamr m1 Commamm Legem; Anfwers
{Pe'rquimt Brave in Cance/Zaria‘ﬂ ﬂln' 'w'rlerit ex- of Peri.
pedire; ne eff Petition (It: Pnrlementngcmrletur 3:3?!“
{#4 Petitio in Cancellarittm, (val Cancellario, val men:
yuﬂiciarik (1e BamoJ 'vel T/Jeﬂmmrio é‘ Baroni-

bm de Scenario, and the like.

And thefe were nor barely upon the Bane
placita of the Lords, but were De jars, as
appears by thofe former Judgments giVen in
the Lords Houfe in Parliament; and the
Reafon is evident : Firﬂ, Becaufe if fuch a
Courfe of Extraordinary Proceeding lhould
be had before the Lords in the ﬁri’t Inl’tance,
the Party fhould lofe the Beneﬁt .of his
Appeal by Writ of ErrorJ according as the
Law allows; and that is the Reafon, why
even in a Writ of Error. or Petition of Et-
ror upon a Judgment in any inferior Court,
it cannot go per Sci/tum into Parliament, till
it has paired the Court of King’s-Bench 5 for
that the Firl’t Appeal is thither. Secondly,
Becaufe the Subject would by that Means
lofe his Trial per Peres, and confequently
his Attaint, in cafe of a Mif’take in Point
of Iffue or Damages : To both which he is
entitled by Law. _

And although fome Petitions of this Na-
ture have been determined in that Manner,
yet it has been (generally) when the Excep-
tion has not been ﬁarted, or at leal’t not in-
ﬁﬂed upon : And One Judgment in Parlia-
ment, that Cafes of that Nature ought to
be determined according to the Courfe of the
Common Law, is of greater Weight than
many Cafes to the contrary, wherein the

F Quel’tion

 

 

 

 
 

50

~ ' "we airing of the China

Queﬁion was not ﬂirted: Yea, even tho’

it fhould be i’tirred, and the contrary aﬂirm’d

, upon a Debate of the Queﬂion, beCa'ufe‘

2.. Crimi- “-

ml Cafes.

greater Weight is to be laid upon the Iudgg—
ment'of any Court when it is excluﬁve of
its Jurifdié’cion, than upon a Judgment of
the fame Court in Afﬁrmance of it.

Now as to Matters Criminal) whether
Capital or nor; they are determinable by the
Common Law, and not Otherwife; and in
Afﬁrmance of that LawJ where the Statutes
of Magna C/oarta, cap. 29. 5' Ed. 3. cap. 9.

.2; Ed. 3. mp. 4. 29 Ed. 3. cap. 3. 27 Ed. 3.

cap. I7. 38 Ed. 3. cap. 9. é“ 40 E51. 3. cap. 3.
The Effect of which is, That no Man ﬂiall

- be put out of his Lands or Tenements, or ‘

. Capital 5 and becaufe this Record will give :
V a great Light to this whole Buﬁnels, I will 1

be imprifoned upon any Suggeﬁion, unlefs ‘
it be by Indié’cment or Prefentment of IaW« .
ful Men, or by Procefs at Common Law.
And by the'Statute of I Hen. 4. cap. 14.1
it is enacted, That no Appeals be fued in 1
Parliament at any Time to come: This
extends to all Accufations by particular
Perfons, and that n0t only of Treafon or;
FelonyJ but of Other Crimes and Mil‘dem
meanors. It is true, the Petition upon!
which that Aé’t was drawn up, begins with l
Appeals of Felony andTreafon, but the:
Clofe thereof, as alfo the King’s Anfwer,.
refers as well to Mifdemeanors as Matters

here fet down the Petition and the Anfwer;
verbatim...».: Pix/e Rat. Par]. 1 Hm. 4. N ° 144..

Item,

 
Ch. 3. Grumman mm of England.
Item, Suppljont le: Commem qua defore‘ e72
"wvant mel appele ole Traiﬁm ‘ne‘ole autre Felon]
quelconq; ﬁn‘t accept on recei've en le Parlement
zzim en mm outres Court: (le dam Foo/ire Realm
dementier: qote en mu: elite Court: purra e/l‘re
Termlner come ad ate fair é' ufe ancienement
“en temp: ele “UM: noble Progeniteur: 5 Et que
cbefccm Pee/on qm’ en temp: a wenirﬁrm accﬂfe ou
impeach en woﬂre Parlement ou en afcem: ales rue:
din Court: per le: S eignior: C?" Commem a'z' rvo/l‘re
Realm ouper afcun Perﬁm ('9‘ defence ou Refponfe a
[on Accufement on Empeacbment é‘fm‘ﬂm Reﬂonfe
feaﬁmalzle Record jugement (’2‘ Trjal come de an-
cienemem‘ temp: acl eﬂre foil (9' ufe per le: 5071c:
Lege: de 'Uo/lre Realm, nient obfhmt ue le: elite
Empeacbement: ou ﬂecuﬁmentsﬁientzait: per le:
Seigneur: ou Commem de too/he Relme come que
de novel en temps de Ric. nadgarim Roy ad q/lre

”ft
Petition.
I Hen. 4'.
N? I“;

foil“ (9' uﬁ a contrar, a tree grand Mifcbief c’r'

ire: grand Mallet/q: Exemple ale foo/lreReal'm.

Le Roy 'voet que (le c] e» mm route: le: Ap-
peles ele ebofe: fail: deim le Relme foient tryez
(’9' terminez, per les [zones Le}: faics en temps ole
tree noble Progeniteu'r: a’e noﬂre elic Seigneur le
R0], Et que tout: le: Appele: cle elm/e; foil: 1907':
doc Realm, foienc triez. (’9‘ terminez; defiant le
Con/fable (7’ Marﬂml ole Angleterrc, é‘ que
nul Appele jolt feit en Parlement defore en afcmé

temp: a venir.

This is the; Petition and Anfwer. The
Statute as drawn up hereupon, .is gev’ieml,
ﬁnd runs this _: I;¢tﬁ,= Pur flu/[ems growl; Iii-
éaﬁeehieociei @ szcb’eif: gee plzgﬁeur: fez: m"

E 2: Wildlife

kaner,

Statﬁi;
cap. reg

 
 

 

" eat arena: or rat ca. gt

. ﬂtl’véﬂtﬁ’ per colam- derpluﬁeur: Appele: fair: deim

le Realm mm ce: bearrorclain e];l é)" e/lalluzyQte
glefore en avant tout: App'ele: ale clzoﬁs fair: claim
le Realm ﬂier): trier [6“ terminessper le: lanes Lay‘s
tile le Realm fair: (’5‘ uﬁ’: en temp: de m: noble
Fragenit‘cur: de a’it naflre Seigneur le Ray,- Et
‘ue il: [6! Appeler ale cbofe: faits‘lyon (la Realm
ﬁle»; We: (‘2' terﬁzine: Jet/ant le Conﬂtzlleé“
Marﬂml par le: temps eﬂeant; LE‘t art/fer decor/lee
e]? (”9' aﬂéntug‘ gm null: Appele: ﬁient deﬁne fair:

cm purﬁxe: en Parlmzent en iml tempx'dvenir.‘

V, Where/‘we may obferve, That though
the Petition ‘exlprefres (Only) Treafon and
Felony, yet the A8: is general againﬁ all
Appeals in Parliament; and many Times
the. Purview eﬁ anAé’c is larger than the
Preamble ,or the Petition, and f0 ’tis here : For
the Body of the Aét prdhibits all Appeals
in Parliament, and therer'Was 'Reafon for it:
For the Mifchief, tw'za Appeals in Parlia~
ment in the Time of King Riclmrzlvﬂ. (as

’in'the Petition is fet forth) Were nor onl}r

of ‘Treafon and Felony, but of Mifdemea-

nors alfo, asappe‘ars by thatgreat Proceed- ‘

ing, II R. ‘2. againﬂ: divers, by the «Lords

« Appellants, and confe-quently it wasune'eef- l
fary to have the Remedy as large as the a

Mifchief. And ‘I do not remember that '
after this Statute there were any Appeals ;

in Parliament, either for Matters Capital
or Criminal, at the Suit of any Particular

‘Perfon or Perfons.

I:

 
Ch. 3. Qtumman late of England. 53

It is true, Impeachments by the Houfe of Impeach‘
Commons, fent up to the Houfe of Lords, 3‘3“?
were frequent as well after as before this 1,231,, 9‘
Statute, and that juﬂly, and with good
Reafon; for that neither the At} nor the
Petition ever intended to reﬂrain them, but
only to regulate them, viz. That the Par—
ties might be admitted to their Defence to
them, and as neither the Words of the Ac}
nor the Praétiee of After—times extended to
reﬁrain fueh Impeachments as were made
by the Houfe of Commons, fo neither do
.thofe lmpeaehments and Appeals agree in
their Nature or Reafon; for Appeals were
"nothing elfe but Accufations, either of Ca-
pital or Criminal Mifdemeanors, made in
the Lords Houfe by particular Perfons; but
{an Impeachment is made by the Body of
the Houfe Of Commons, which is equivalent
to an Indiérment ﬁro Carport: Regni, and
therefore is 0f anot er Nature than an Ae-
cufation or Appeal, only herein they a-
gree“, viz. Impeachments in Cafes Capital
againﬁ Peers of the Realm, have been ever
tried and determined in the Lords Home;
but Impeachments againl’t a Commoner
have nor been uﬁ;al in the Houfe of Lords,
unlefs preparatory to a Bill,‘ or to direé’t an
Indiétiiierit in the Courts below: But Inn-
peachments at the Profecution of the Houle
of Commons, for Mifdemeanors as well
againﬁ a Commoner as any other, have
ufually received their Determinations and
ﬁnal Judgments in the Houfe of Lords;
whereof there have been numerous Prece-

E 3 dents

 

 
i

54- ‘ ﬁbemiﬁnztuf the (311.3“

dents in all Times, both before and ﬁnce 1
the faid Aé’t.
And thus much in general touching the great 1
Regard that Parliaments and the Kingdom ‘I
have had, and that mo‘fl iuf’tly to the Com- .
mon Law, and the great Care they have had I
to preferve and maintain it, as the Com—g
mon Intereﬁ and Birthright of the King;
”and Kingdom. ' ‘ ‘
Appella- I {hall now add fome few Words touch- .
3°“ “the 'ing. the Stiles and Appellations of the Com- x
12.3mm men Law, and the Reafons of it: ’Tis cal- _
° led fometimes by‘Way of Eminence, Lax.)
Term, as in the Statute of Magoo Charm,
cap. 29, where certainly the Common Law .
is at leaﬁ principally intended by thofe!
Words, out per Legem Term, as appears 'by the :
Expoﬁtion thereof in feveral fubfequent :
Statutes, and particularly in the Statute :a
28 Ed. 3. cap. 3*. which is but an Expoﬁtion l
and Declaration of that Statute: Sometimes 2
’tis called, Lex Anglite, as in the Statute of'i
Merton, cap. . . . Nalumm Lege: Anglioe mu- ‘
tare, (7c. Sometimes ’tis called, Lex ('9' Con- .
foetudo Regni, as in all Commiﬂions of Oyer '
and Terminer, and in the Statutes of 18 Ed; I.-_ l
cap. . . and De 9%“) Wizrmntoﬁnd divers others; ;
but mcﬁ commonly ’tis call’d, T/ae Common :
«Law, or, The Common Law of England, as, l

in the Statute of Articuli fuper comm, cap. I y.
in the Statute 2; Ede. cap. 5. and- inﬁnite :

more Records'an'd Statutes. '

Now the Reafon why ’tis call’d, Me Com-

mm Low, or what was the Occaﬁon the}:

' ﬁr -

 
Ch.3.’ Grumman tam of England. . ; 5;

ﬁrﬁ gave that Determination to it, is va- The Reaa
riouﬂy aHigned, viz. {on-“here“

Fir/l, Some have thought it to be fo called °£
by Way of Contradiﬂin‘é’cion to thofe Other
Laws that have obtain’d within this King—
dom, as, 1]}. By Way of Contradiﬁinétion to
the Statute Law, thus a Writ of Entry adCom-
munem Legem, is f0 call’d in Contradiﬂiné’cion
to Writs of Entry in Cafu conﬁmili, and in
C41]?! pro-viﬁ), which are given by A8: of Par-
liament. wily, By Way of Contradiﬁiné’tion
to particular Cuf’tomary Laws: Thus Dif-
cents at Common Law, Dower at Com-
mon Law, are in Contradiﬂinétion to fuch
Bowers and Difcents as are directed by par—
ticular Cui’toms. And 311]], In Contradi~
ﬂinC‘tion to the Civil, Canon, Martial and
Militar Laws, which are in fome particu-
lar Ca es and Courts admitted, as the Rule
of their Proceedings.

Secondly, Some have conceived, that the
Reafon of this Appellation was this, rw'zz. In
the beginning of the Reign of Edward III.
before the Conquef’t, commonly called,
Edward the Confqﬂur, there were feveral Laws,
and of feveral Natures, which obtain’d in
feveral Parts of this Kingdom, viz. The
Zl/Iercitm Draw, in the Counties of Glance/fer,
I/Vorce/fer, Hereford, Ixﬁlr’arzzjick, 0x071, C beﬂer,
Salop and Smﬁinul. The thrziﬂi Laws, in the
Counties of Tori, Derby, Naming/Ema, Lei-
ce/fer, Lincoln, IVTUrf/mmpton, Bcziford, Bucks,
Hartford, Eﬂt‘x, [l/IiIUIefex,1\707fol.-€,Suffﬂk, Cam-
Irritlge and Huntington. The if’eﬂ-Sax07zLaWS,
' in the Counties of Kent, Sujﬂrt, Surrey, Berks,

I 3 4 ' Sombamp-

 
55 . eye ipiﬁnzy at the . (311,3,
Southampton, Wilts, Samerﬁ't, Dorﬁt, and De-g

'00”. \
This King, to reduce the Kingdom as
well under one Law, as it then» was under
one Monarchical Government, extracted
The Con. Our of all thofe Provincial Laws, one Law
feﬂbr's to be obferved through the whole King-
Laws. dom : Thus Ranulp/Jm Ceﬂrenﬁr, Cited by
Sir Henry Spe/mtm in his Gloﬂizr], under the
Title, Lex, fays, Ex tribm 131': Legiém Sanéfm
Eduzrdm mam Legem. . . . . 597:. And the
fame in tandem rverluér, is afﬁrm’d in his Hi-
ﬁory of the laﬁ Year of the fame King Edw-
awz‘rd. (Vida 1317221. plum ale 600.) But Harvedm
Carries up the Common Laws, or thofe ﬂile’d
the Conﬁjﬁr’: Laws, much further ,- for he in
his Hiftory of Henry II. tells us, Quad iﬂat
Leger" prim int/mm (9“ conﬂimm emnt Tempore
Edgari, Aviﬁzi, (ﬁve. (Vizle Hovezlen.) And
poﬂibly the Grandfather might be the ﬁrﬂ;
Collector of them into a Body, and after-
Wards Edward might add to the Com poﬁtion,
and give it the Denomination of the Com-
mon Law; but the Original of it cannor in
Truth be referred to either, but is much
more ancient, and is as undifcoverable as
the Head of Nile: Of which more at large
in" the following Chapter. .
ﬂirdly, Others fay, and that moﬂ truly,
That it is called the Common Law, becaufe
it is the common Municipal Law or Rule of
Juf’tice in this Kingdom: 50 that Lex Com,—
mum's, or 7m Commzmis, is all one and the
fame With Lex Patrice, 0113’": Pam'um; for
although there are divers particular LaWs, --
. fame

 

 

 

 

 

 
Ch: 3- crummun 1%an England.

fome by Cui’tom' applied to particular Places,
and fome to particular Caufes; yet that
Law which is common to the generality‘of
all Perfons, Things and Caufes, and has a
Superintendency over thofe particular Laws
that are , admitted in relation to particular
Places or Matters, is Lex Commands Anglia,
as the Municipal Laws of Other Countries
may be, and are fometimes cal-I’d, Tbe Cam-
Mon Law of Matt County; as, Lex Command:
Norrica, Lex Comm/ma: Burgundim, Lex Com-
mum: Lombardica, the. So that although all
the former Reafons have their Share in this
A pellation, yet the principal Caufe there—
ofp'feems to be the later: And hence fome of
Ancients call’d it Lex Command, others
Lex Pam'e; and {0 they were calledin their
Conﬁrmation by King William I. Whereof
hereafter. ‘ ‘

 

C HAP.

is“?

 
 

The Dif-

ﬁculty of

difcover.
ing their
Original

etc niacin at we ch.4.»..

 

CHAP. IV.

Touching the Original of the Common Lani
, of England.

HE Kin dom of England being a very,

ancient §iingdom, has had many Vi—
ciHitudes and Changes (efpecially before the.
Coming in of King William I.) under feveral
either Conquei’ts or Acceﬂions of Foreign
Nations. For tho’ the Britain: were, “as is
fuppofed, the moﬁ ancient Inhabitants, yet
there were mingled with them, or«brought
in upon them, the Roman:, the iPiéh, the
Saxons, the Danes, and laﬁ‘ly, the ‘Norimmt;
and many of thofe Foreigners were as it;
Were incorporated together,- and made one
Common People and Nation; and hence
arifes the Difficulty, and indeed Moral Im-
poHibility, of giving any fatisfaétory or f0
much as probable Conjeé’ture, touching the
Original of our Laws, for the following
Reafons, viz”

Fir/l, From the Nature of Laws themfelves
in general,which being to be accommodated
to the Conditions, Exigencies and Conve-
niencies of the People, for or by whom
they are appointed, as thofe Exigencies
and Conveniencies do infenlihly grow upon
the People, {0 many times there grows in--
fenﬁbly a Variation of Laws, efpecially in
a long traét of Time; and hence it is, that
tho’ for the Purpofe in fome particular Part

of
 
 

 

Ch 4. «Stuntman ﬂaw of England.

% of the Common Law of Englaml, we may
V‘eaﬁly fay,‘That the Common Law, as it is
now taken, is'ozherwife than it was in that
particular Part or Point in the Time of
Hen. II. when Glawille wrote, or than it was
in the Time of Hen. III. when BméZon wrote,
yet it is not poliible to aﬂign the certain
Time when the Change began, nor have we
all the Monuments or Memorials, either of
Acts of Parliament, or of Judicial Refolu-
tions, which might induce or occaﬁon fuch
Alterations; for we have no authentick
Records of any Aas of Parliament before
9 H. g. and thofe we have of that King’s
Time, are but few. Nor have we any Re-
ports of Judicial Deciﬁons in any conf’cant
Series of Time before the Reign of E4222. I].
tho’ we have the Plea Rolls of the Times of
Hen. III. and King 3"0512, in fome remarkable
Order. 30 that Ufe and Cuﬂom, and Ju-
dicial Deciﬁons and Refolutions, and Acts
of Parliament, tho’ not now extant, might
introduce fome New Laws, and alter fome
Old, which we now take to be the very
Common Law it felf, tho’ the Times and
Iprecife Periods of fuch Alterations are not
explicitely or clearly known : But tho’ thofe
particular Variations and Accellions have
happened in the Laws, yet they being only
partial and fuccellive, we may with jul’t
Reafon fay, They are the fame Englifh Laws
now, that they were 600 Years ﬁnce in the
general. As the Argonauts Ship was the
fame when it returned home, as it was when
it went out, tho’ in thatlong Voyage it Ihad
uc-

 

  
 

as

me getting? of the Ch. 4.

fucceﬂive Amendments, and fcarce came
back with any of its former Materials; and
as Titian is the fame Man he was 40 Years
ﬁnce, tho’ Phyﬁtians tell us, that in a Traci:
of 7 Years, the Body has fearce any of the
fame Material Subﬁance it had before.

Secondly, The ad Difﬁculty in the Search
of the Antiquity of Laws and their Origi—
nal, is in relation to that People'unto whom
the Laws are applied, {Which in the Cafe of
England, will render many Obferrables, to;
to ﬂiew it hard to be traced. For, " '

Iﬂ. It is an ancient Kingdom, and in
fuch Cafes, tho’ the Peo le and Govern;
ment had continued the ame aé Origins, (as
they fay the Claineﬁe: did, till the late In;
curﬁon of the Tartan) without’the Mixture
of Other People, or Laws, yet» it were an
impofﬁbie Thing to give any certain Ac-
count of the Original of the Laws of fuch
a People, unlefs we had as certain Monu-
ments thereof as the 7.32:}: had of theirs,
by the Hand of Mara, and that upon the
following Accounts, m.

Firﬂ, We have not any clear and certain
Monuments of the Original Foundation of-
the Englijh Kingdom or State, when, and
by whom, and how it came to be planted.
That which we have concerning it, is un-
certain and traditional 5 and lime We cannot
know the Original of the planting of this
Kingdom, we cannoc certainly know the
Original of the Laws thereof, which may
be well prefum’d to be very near as ancient
as the Kingdom it felt. Again, 2:15., The“

‘ * ' Ire»
 

 

Ch. 4. Qtuummu ﬂair: of England.

Tradition might be a competent Difcoverer
of the Original of a Kingdom or State, I
mean Oral Tradition, yet fuch a Tradition
were incompetent without written Monu-
ments to derive to us, at fo long a Dil’tance,
the Original Laws and Conﬁitutions of the
Kingdom, becaufe they are of a complex
Nature, and therefore not orally traducib‘le
to f0 great a Diﬁaxice of Ages, unlefs we
had the Original or Authentick Tranlcript
of thofe Laws, asthe People the 76922: had
of their Law, or as the Roman: had of their
Laws of the Twelve. Tables engraven in
Brafs. But yetfurther, 3:11 , Itis very evident
to every Day’s Experience, that Laws, the
further they go from their original Inflitu—
tion, grow the larger, and the more nu«
merous: In the ﬁri’t Coalition of a People,
their Profpe‘ét is not great, they provide
Laws for their prefent Exigence and Con-
venience: But in Proceﬂs of Time, poliibly
their-ﬁrﬂ Laws are changed, altered or anti-
quated, as fame of the Laws of the Twelve
Tables among the Roman: were: But what-

foever be done touching their 014 Laws, ‘

there muff of Necefl’ity be aProviﬁon of
New, and other Laws fucceﬁvely, anfwering
to the Multitude of fucceﬂive Exigenciesland
Timer encies, that in long Tract of Time
will ﬁler themfelves; fo that if a Man could
at this Day have the Profpeéts of all the
Laws of the Britain: before any Invaﬁon
upon them, it would ‘yet be impoflible to
fay, which of them were M22), and which
were 014, and the {egeral Seafons and PS-

r10 5

61

 
 

‘62

{the tailing? hf the CR4;

riod‘s of Time wherein every Law took its
Rife and Original, efpecially ﬁnCe-it ap-
pears, that in thofe elder Times, the Brié
min: were nor reduc’d to that civiliz’d
Ef’tate, as to keep the Annals and Memo;
rials of their Laws and Government, as the
Roman: and Other ciViliz’d Parts of the
World have done. >
' It is true, when the Conqueﬂ: of a COun-j
try appears, we can tell when the Laws of
conquering People came to be given to"
the Conquered. Thus we can tell, that in
the Time of Hm. II. when the Conquef’t of
Ireland had obtain’d a good Progrefs, and in
the Time of 19705”, when it was complea-
ted, the Engliﬂo Laws were fettled in Ireland :
But if we were upon this Inquiry, what
were the Original of thofe Englzﬂi Laws that
were thus fettled there; we are ﬂill under
the fame Queﬂ and Difﬁculty that we
are now, viz What is the Original of the:
Engliﬂi Laws. For they that begin New Colo-
nies, Plantations and Conqueﬁs; if they
fettle New Laws, and 'which the Places had
nor before, yet "for the m‘ol’t part (I don’t
fay altogether) they are the Ollesavvs Which
obtain’d in thofe Countries from whence

the Conquerors or Planters came. .
Sec‘omil}, The 2:1 Difﬁculty of the Difco-j
very of the Original of the Engliﬂ: LaWS is
this, That this Kingdom has had many and
great Viciﬂitudes of People that inh‘ah‘ited
it, and charm their feveral Times prevail’d
and obtain’d a great Hand in the Govern;
ment of this Kingdom, whereby it came to?
4 P553

9
l

 
 

 

Ch. 4. 0101111110}! iLam Of England.

pafs, that there arofe a great Mixture and Va‘
riety of Laws: In fome Places the Laws of
the Saxons, in fome Places the Laws of the
Danes-,in fome Places the Laws of the ancient
Britons, in fome Places the Laws of the Merci-
am, and in fome Places, or among fome Peo-
ple (perhaps) the Laws of the NormanstOI‘ a1.-
tho’,as I {hall fhew hereafter, the Norman: ne-
ver obtain’d this Kingdom by fuch a Right of
.Conqueﬂ, as did or might alter the Eﬁablifh-
ed Laws of the Kingdom, yet conﬁderin g that
K. William l. brought with hima great Multi-
tude of that Nation, and many Perfons of
great Power and Eminence, which were
planted generally over this Kingdom, efpe-

cially in the Poffeffions of fuch as had op- _~

pos’d his coming in, it muﬂ: needs be {up-

‘ pos’d, that thofe Occurrences might eaﬁly
have agreat Inﬂuence upon the Laws of

this Kingdom, and fecretly and infenﬁbly
introduce New Laws, Cuﬁoms and Ufages;
f0 that altho’ the Body and Grofs of the Law
might continue the fame, and f0 continue the
ancient Denomination that it ﬁrf’t had, yet

”it muil needs receive divers Acceﬂions from

the Laws of thofe People that were thus in-
termingled with the ancient Britain: or Sa.
,xons, as the Rivers of Severn, Thames, Trent,
é‘c. tho’ they continue the fame Denomi-
nation which their ﬁrﬂ Stream had, yet
have the Acceﬂion of divers Other Streams
added to them in the Traéts of their Paf-
fage which enlarge and augment them.

‘And hence grew thofe feveral Denomina-

tions of the Saxon, Martian, and Daniﬂ; Laws,
out

63

 

 

 
 

64

' an aim? at tag ch. 45

but of which (as before is Ihewn) the Con-
feﬂbr extracted his Body of the Common
Law, and therefore among all thofe various
Ingredients and Mixtures of Laws, it is al--
moﬂ an impo'llible Piece of Chymif’cry to
reduce every Caput Leg: to its true Original,
as to fay, This is a piece of the Daniﬂy, this
of the Norman, or this of the Saxon or Britiﬂ:
Law: Neither was it, or indeed is it much
Material, which of thefe is their Original ;
for ’tis very plain, the Strength and Obli-
gation, and the formal Nature of a Law,
is not upon Account that the Danes, or the
Saxons, or the Normans, brought it in with
them, but they became Laws, and binding
in this Kingom, by Vertue only of their
being received and approved here.

'I/airdly, A Third Diﬁiculty arifes from
thofe accidental Emergencies that happened,
citherin the Alteration of Laws, or commu-
nicating or conveying of them to this
Kingdom : For ﬁri’t, the Subdiviﬁon of the
Kingdom into fmall Kingdoms under the
Heptarchy, did mof’t neceﬁ‘arily introduce
aVariation of Laws, became the fe‘veral
Parts of the Kingdom were not under one
common Standard, and f0 it will foon be
in any Kingdoms that are cantonized, and
not under one common Method of Difpen—
Tation of Laws, tho" under one and the
fame King. Again, The intercourfe and
Traﬂick with Other Nations, as it grew
more or greater, did gradually make a‘,
“Communication and Tranfmigration
Laws from us to them} and from them to its;

* I Again;
ch. ,4. (II-0111mm ilﬂin Of England. 7

Again, The growrh of Chriﬁianity in this
.Kingdom, and the Reception of Learned
2A/Ien from Other Parts, efpecially from Rome,
and the Credit that they obtained here,
(might reafonably introduce fome N672)
Laws, and antiquate or abrogate fome Old
ones that feem’d lefs confif’tent with the
.Chtiﬁian Doétrines, and by this Means, not
only fome of the Judicial Laws of the 310m,
but alfo fome Points relating to, or border-
,ing upon, or derived from the Canon or
.Civil Laws, as may be feen in thofe Laws
of the ancient Kings, Ina, Alp/oral, Cam:-
7:11;, e’ﬁ'c. colleé’ted by Mr. Lari/liberal.

Having thus far premifed, it feems, upon
:the whole Matter, an endlefs and infupera—
ble Buﬁnefs to carry up the Engliﬂa Laws to
,their feveral Springs and Heads, and to find
:Out their ﬁrﬁ: Original; neither would it
the of any Moment or Ufe if it were done:
-For whenever the Laws of E ”gland, or the fe-
,veral Capita thereof began,or from whence or
.Whomfoever derived, or what Laws of other
:Countries contributed to the Matter of our
Jam 5 yet moi’t certainly their Obligation
arifes not from their Matter, but from their
;.Admiﬂion and Reception, and Authoriza-
tion in this Kingdom; and thofe Laws, if
convenient and ufeful for the Kingdom,
were never the worfe, tho’ they were de-
fumed and taken from the Laws of other
Countries, {0 as they had their Stamp of
-Obligation and Authority from the Re;
ception and Approbation of this Kingdom

by Venue of the Common Law, of which
F this

6's

 
”as * true nittuui of the (211.4.

this Kingdom has been always jealous, efpe—
cially in relation to the Canon, Civil,
and Norman Law, for the Reafons hereafter

,ihewn.
Thres Paﬂing therefore from this unfearchable
Efﬁglfii'c Inquiry, Iihall defcend to that which gives

a Common the Authority, tviz. The formal Conf’ti-
Law. tuents, as I may call them, of the'Common
" ' Law, and they feem to be principally, if
nOt only, thofe three, viz. 1/}, The Com-
mon Ulage, or Cuﬁom, and Practice of this
Kingdom, in fuch Parts thereof as lie in
Ufage or Cuﬂom. 24/}, The Authority
of Parliament, introducing fuch Laws;
and, idly, T he Judicial Deciﬁons of Courts
of Juﬂice, confonant to one another in the

Series and Succeflions of Time.
rice» 1. As to the ﬁrit of thefe, Ufage and
@0335. Cuftom generally received, do Obtinere 'vim
Lrgir, and is that which gives Power fomei
times to the Canon Law, as in the Ec-
cleﬁaﬁical Courts, fometimes to the Civil
Law,as in the Admiralty Courts; and again,
controules both, when they crofs other
Cul’toms that are generally received in the
Kingdom. This is that which direéts Dif-
cents, has fettled fome ancient Ceremonies
and Solemnities in Conveyances, Wills
and Deeds, and in many more Particu-
lars. And if it be inquired, What is the
Evidence of this Cuﬁom, or wherein it
conﬁﬂs, or is to be found? Ianfwer, It is
not {imply an unwritten Cuﬁom, nor barely
Orally derived down from one Age to ano-
ther; bur it is a Cuﬂom that is derived
down

 
5:

 

Ch.4.. Grumman mm of England.
ﬂown in Writing, and tranfmitted from Age
”to Age, efpecially ﬁnce the beginning of
“Ezlw. I. to whofe Wifdom the Laws of Eng,
land owe al'moi’t as much as the Laws of
Rome to yuﬁinian. I t . ,

2. Aéts of Parliament. And here it muﬁ
not be wdnder’d at, that I make Aéis of
Parliament one of the Authoritative Con-
ﬁituents of the Common Law, tho’ I had
before contradii’tinguifhed the one from the
Other; for we are to know, that altho’ the
Original or Authentick ~Tr'anfcript's Of
Aas of Parliament are not before theTime
'of Hen. III. and many that were in his
Time are pe'rifh’d and loft; yet certainly
Tueh there were, and many of thofe Things
’that we now take for Common Law, were
Undoubtedly Aéts of Parliament, tho’ now
not to be found of Record. And if in the
next Age, the Statutes made in the Time
'of Hen. III. and Ed‘w. I. 'were loi’t, yet even
l'thofe would pafs for Parts of the Common
law, and indeed, by long Ufage, and the
‘many Refolutions grounded upon them, and
By their great Antiquity, they feem even
already to be incorporated with the Very
Common Law; and that this is to, may ap‘
Fear, tho’ nm by Records, for we have none
0 ancient, yet by an authentical and un-
‘Queﬂionable Hiﬁory, wherein a" Man may,
"without much Difﬁculty, ﬁnd, That many
’of thofe Capitula Leg‘um that are now ufed
and taken for Common Law, were Things
emitted in Parliaments Or Great CounCils
tinder {Wig/n1. and, hisFPredeeeffors,‘ King?

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3:11]. Ju-
dicial
Deciﬁ-
cm.

are airing»: of the (211.4;

of England, as may be made appear hereafter:
"But yet, thofe Conﬁitutions and LaWs be-
ing made before Time of Memory, do
now obtain, and are taken as part of the
Common Law, and ’Immemorial Cuﬁoms
of the Kingdom : And fo they ought now
to be ‘ef’ceem’d, tho’ in their‘ﬁri’t Original
they were Acts of Parliament.

, 3. Judicial Decilions. It is true, th‘e
Deciﬁons of Courts of Jul’tice, tho’ by Ver-
tue of the Law of this Realm they do bind,
as a Law between the Parties thereto, as
to the particular Cafe in Queftion, till re-
vers’d by Error or‘Attaint, yet they do

’not make a Law properly f0 called, (for that

only the King and Parliament can do); yet
they haVe‘a‘g‘reat'Weight and Authority in
in Expounding, Declaring, and Publilhing
what the Law of this Kindom is, efpeciall‘y
when fuch Deciﬁons hold a Confonancy
and Congruity with Refolutions andDe-
ciﬁons of former Times; and tho’ fuch De-
cifions are leis, than a Law, yet they area
greater Evidence thereof, than the Opinion
of any private Perfons, as fuch, whatfo-
ever.

1/}, Becauf'e the Perfons who pronounce
thofe Deciﬁons, are Men chofen by the
King for that Employment, as being of
greater Learning, Knowledge, and Expe-
rience in the Laws than others; 2‘11}, Be-
caufe they are upon their Oaths to judge
according to the Laws of the Kingdom.
3:”, Becaufe'they have the beﬂ Helps to
m cm their Judgments. 4:50, .Bccahufe

t 6)?
 

6h. 45 Grumman lain Of England.

they do SeJere pro Trilmmli, and their Judg-
ments are ﬁrengthen’d and upheld. by the
Laws of this Kingdom, till they are-by the
fame Law revers’d or avoided.

Now Judicial Deciﬁons, as far,- as they:
:efer to the Laws of this Kitndom, are for
the Matter of them of Three Kinds:

Fir/l, They are either fuch as have their
Reafons ﬁngly in the Laws and10uﬁoms of
this Kingdom, as, Who {hall fucceed as
Heir to the Anceﬂor, what; is the (Jere-
lmony requiﬁte for pairing 2; Freehold, what
Eﬁate, and, how' much {hall the Wife have
for her Dower? And many- fuch Matters,
Wherein the ancient and exprefs Laws of
the Kindom give an exprefs Deciﬁon, and
the Judge feems only the Infirutnent to pro-
uourice it: And in thefe Thin-gs, the Law
()1: Cuf’tom of the Realm is the onlyRule
and Meafure to judge by, and in reference
to, thofe Matters, the Deciﬁons of Courts
are the Confervatories and Evidences of
thofe Laws. " » , - ’
3 Secondly, Or they are fuch Decilions, as
by way of Dedué’cion and Illation, upon
thofe Laws are framed or deduced; as for
the Purpofe, Whether of an Eﬂate thus or
thus limited, the Wife {hall be endowed?
Whether if thus or thus limited, the Heir
may be hand? And inﬁnite more of the
like complicated Queﬁions. And herein the
Rule of Deciﬁon is, Firﬂ’, the Common
Law and Cuﬁom of the Reaim, which is

F 3 the

39

Of Three
.. Kinds.

wenT'CW V ‘ ,1-.2E"yji‘_§f- 4 4 .
A 7,: A > , — ‘

f;e..-Zi:;:.w—..-" :;

. . ‘a‘ﬁVm‘r'iJid-Q

vW“ ~
. cm"- . ,t

_ V 4A,_A:__A.__._
2, -. .-9
~. ...-. .,

 
 

79

. etc twat-r of the CM

the great Sub/harm thatis to be maintain’d;

' and then Authorities or Deeiﬁons of former

Times in the'fame or the like Cafes, and
then the Reafon of the Thing it felf. ,

Thrall], Or they are fuch as feem to have”
no other Guide but the common Reaibn of ‘
the Thing,'unlefs the fame Point has been <
formerly decided, as in the Expoﬁtion of
the Intention of Claufes in- Deeds, Wills,

' Covenants, (be. where the very Senfe of the

Words, and their Poﬁtionsj and Relations,
give a rational Account of the Meaning of
the P3rti€513nd in fuch Cafes the Judge
does much better herein, than what a bare,
grave Grammariian or Logician, or Othelj
prudent Man could do; for in many Callas
there have been former RefOIutions, either
in Point, or agreeing in Reafon or Anae
logy with the Cafe in Queﬂion; or per-e
haps alfo, the Claufe to be expounded is‘
mingled with fome Terms or Claufes that;
require theKnowledge of the Law to help?
out with the Conﬁruétion or Expoﬁtion :_'
Both whichV-do often happen in the fame
Cafe, and therefore it:. requires the Know:
ledge of the Law to render and expound
fuch Claufes and Sentences; and doubtlefs a,
good Common Lawyer is the bef’r Expoﬁtor
of fuch Claufes, (In. Vidé Plowden, 122, to?
130, I40, é’c. ’

CHAR

 
1611.; L‘ Grumman 1am of England. 7:

 

 

r?

CHAP. V.

How the Common Law of England ﬂood
at and fbr fame Time aﬂer the coming
in of King William I.

IT is the Honour and Safety, and therefore Two
the iul’t Deﬁre of Kingdoms that recog— Qualiﬁca-
nize no Superior but God, that their Laws "011509
have thofe two Qualiﬁcationswiz. Iﬁ. That 31.233“
they be not dependent upon any Foreign 1m», 5'
Power; for a Dependency in‘ Laws dero-
gates from the Honour and Integrity of the
Kingdom, and from the Power and Sove-
reignty of the Prince thereof. Secondly, That
they taf’te not of Bondage or Servitude; for
that derogates from the Dignity of the
Kingdom, and from the Liberties of the
People thereof.

In relation to the former Conﬁderation,
the. Kings of this Realm, and their great
Councils, have always been jealous and
careful, that they admitted not any Foreign
Power, (efpecially fuch as pretended Au—
thority. to impofe Laws upon other free
Kingdoms or States) nor to countenance
the Admilﬁon offuch Laws here as were de.
rived from fuch a Power, ' V

Rom, as well Ancient as Modern, pre-
tended a. kind of Univerfal Power and:
I’nterelt; the former by their Victories,
" " " F4"W"whicli

 
 

72

Neither
Canon
nor Civil
Law the
Rule of
Jul’tice
here.

 

' W renown or. g2?

which were large, and extended even to
Britain it felf; and the later upon the Pre-
tence of being Univerfal Bilhop or Vicar-
General in all Matters Eccleﬁal’tical; f0

' that upon Pretence of the former, the Civil

Law, and upon Pretehce of’ the later, the
Canon Law was introduc’d, or pretended
to fome kind of Rig-ht in the Territories of
fome abfolute Princes, and among Others
here in England : But this Kingdom has been)
always very jealous of giving too much1
Countenance to either of thofe Laws, and
has always lhewn a iuﬁ Indignation and Re-
fentment againl’t any Encroachments of this
Kind, either by the one Law or theoth‘en-
It it true, as before is fhewn, that in the,
Admiralty and Military Court's, the CiVil-
Law has been admitted, and in the Ecclefia—
ﬁical Courts, the Canon Law has been in-
fome Particulars admitted. But ﬁi‘ll they
carry fuch Marks and Evidences about
them, whereby it may be known that they
bind' not, nor have the Authority of Laws
from themfelves, but from the authoritative
Admiliion of this Kingdom.

And, as thus the Kingdom, for the Rea-
fons before given, never admitted the Civil
or the Canon Law to be the Rule of the
Adminiﬂration of Common Jufiice in this
Kingdom 5 fo neither has it endured any"
Laws to be impofed upon the People by
any Right of Conquef’t, as being unfuitas
ble to the Honour or Liberty of the Englifh
Kingdom, to recognize their Laws as given
them at the Will and Pleafure of 21 Con-

queror.
x
:cti. §i ' crewman ‘ﬁafn‘uF’Ensland- 975

queror. And hence. it was, that altho’r the OurLaWS
‘Feople unjuf’tly allil’ted' King Hen. IV. in “0331“;
his Ufurpation of the Crown, yet he was 22?); ml}.
min: admitted thereunto, until he had Dev 9 "
clared, that he claimed not as a Conqueror,
but as a Suceeffor, only he referved to him-
felf the Liberty of extending a Pretenee
of Conquei’t againi‘t the Scroop: that were
Slain in Battle againﬁ him; which yet he
d'url’t not reﬂ upon without a Conﬁrmation,
in Parliament. Vida Rot. Par]. I H. 4. N° 56.
é’ Par: 2. 117. N0 I7.
And upon the like ‘Reafon it was, That
King William I. tho’ he be called the Con.
queror, and his attaining the Crown'here,
is often in Hillory, and in fome Records,-
called, Conqueﬂm Anglice; yet in Truth it
was no: fuch a Conquef’t as did, or could,
alter the Laws of this Kingdom, or impofe
Laws upon the People, per Madam Conguq/l—
m, or 7am Bellz' : And therefore, to wipe off
that falfe Imputation upon our Laws, as if
they were the Fruit or Effeét of a Conqueﬁ,
or carried in them the Badge of Servitude
to the Will of the Conqueror, which Notion.
mee ignorant and prejudiced Perfons have
entertain’d; I {hall rip up, and lay open
this whole Buﬁnefs from the Bottom, and
to that End enquire into the following Par-
ticulars, viz.

,1:

5
“l
J!
z! .

‘. ,
szl

1,, Of the Thing called Conquef’t, what
it is, when attained, and the Rights there-

of.
2. Of

 
 

7+

Conqueﬂ,
what it is.

the want? at the Ch. 5. .

2. Of the feveral Kinds of Conqueﬂ, and ,
their Eﬁ'eéts, as to the Alteration of Laws
by the Viétor ’

3. How the Englijh LaWS ﬂood at the;
Entry of King William the Firl’t. '

4. By what Title he ‘entred, and wh‘e-a
ther by fuch'a Right of'Conqueﬂ: as did, or
COuld, alter the Engliﬂ: Laws.- ‘

5-. Whether De Faéfo there was any Alte: '
ration of the faid LawsJ and‘by what Means;

after his coming in.

Fir/Z, Touching the (Mt of‘the'fe, 'w'zt'
Conqueﬁ, what it is, when attain’d, and the
Rights thereof; 'It is true, That it feemg
to be admitted as a kind of Law among all
Nations, Thatéjéin * cafe A ofﬁa Solemn ’ War
between Supre'amPrinces, the Conqueror
acquires a Right of Dominion, as well as a
Property overthe Things and Perfons that
are fully conqhered; and the Reafons all
ﬁgned are Principally thefe, ‘rm'z. ‘

iﬁ. Becaufe both Parties have appealed
to the higheﬁ Tribunal that can be, viz.
The Trial by War, wherein the greatjudge ‘
and Sovereign of the World, The Lord of
Ho/lr, feems in a more efpecial manner than
in other Cafes to decide the Controverfy.’
2:11], Becaufe unlefs this ihould be a ﬁnal
Deciﬁon, Mankind would be deﬂroy’d by
endlefs Broils, Wars and Contentions, there-"
fore, for the Prefetvation of Mankind, this
great Decilion ought to be ﬁnal, and the
Conquer’d ought to acquief‘ce init. ga’ly, Be“
cau‘fe if this {hould net be admitted, and

" be

 
Ch. 5. Grammar: mm of England.

be by, as it were, the tacite Confent of Man?
’kind accounted a lawful Acquiﬁtion, there
would n0t be any Security or Peace under
any Government; For by the various Re-
volutions of Dominion acquired by this
Means, have been, and are to this Day the
Succefﬁons of Kingdoms and States prefer-
ved. What was once the Romans, was be.
fore that the Graham, and before them
the Perﬁam, and before the Pnﬁam the
Aﬂjriam; and if this juﬁ Victory were not
allowed to be a ﬁrm Acqueﬂ: of Dominion,
the prefent Poffeffors would be {till obnoxi.
ous to the Claim of the former Proprietors,
and fo they would be in a reﬂlefs State Of
Doubts, Difﬁculties and Changes upon the
Pretenﬁon of former Claims: Therefore, to
cut off this Inﬂability and Unfettlednefs in
Dominion and Property, it would feem
that the Q'Ommon Confent of all Nations
has tacitely fubmitted, that Acquiﬁtion by
Right of Conqueﬁ, in a Solemn War be-
tween Perfons not Subjects of each other
by Bonds of Allegiance 'or Fidelity, ihould
be allowed as one of the lawful Titles of
acquiring Dominion over the Perfons,
Places and Things f0 conquer’d.

But Whatever be the real Truth or Juﬁice
of this Poﬁtion, yet we are much at a Lois,
touching the Thing in Hyporbeﬁ, rviz. Whe-
ther this be the Effect of every Kind of
Conquef‘t? Whether the War be Juli or
Unjuft? What are the Requiﬁtes to the
Conﬂituting of a juf’t War? Who are the
Perfons that may acquire ? And what are
' the

75

 
 

76

the biting? nt‘tfje‘ Ch. 5:

the Solemnities requiﬁte for that Acqueﬂ?
But above all, the greateﬂ: Difﬁculty is,
when there {hall be faid, Such a Vittory as
acquires this Right? Indeed, if there be a
toral Deletion of eVery Perfon of the Op-
poﬁng Party or Country, then the Viaory
is compleat, becaufe none remains to call
it in queﬂion. But lhppofe they are beaten
in one Battle, may they not rally again?
Or if the greater Part be fubdued, may not
the leffer keep their Ground? Or if they do
nor at the prefent, may they not in the
next Age regain their Liberty? Or if they
be quiet for a Time, may they not, as they
have Opportunity, renew their Pretenﬁons?
And altho’ the Viétor, by his Power, be able
to quell and fupprelé them, yet he is be-
holding to his Sword for it, and the Right
that he got by his Viétory before, would
net be fuﬂicient without a Power and Force
to eﬂablifh and fecure him againf’t new
Troubles. And on the other Side, if thofe
few fubdu’d Perfons can by Force regain
what they once had a Pretence to, afor-
mer Viétory will be but a weak Defence;

and if it would, they wOuld have the like

Pretence to a Claim of Acqueﬂ by Vittory
over him, as he had over them.

It feem therefore a difﬁcult Thing to
determine in what indiviﬁble Moment this
Viétory is f0 compleat, that we Belli the
Acquei’t of Dominion is ful y gotten, and
therefore Viétors ufe to fecure themfelves
againﬁ Difputes of that Kind, and as it
were to under-pin their Acqtieft 3‘14” Bali”,

La?

 
Ch. "5?; Grumman mm of England. 77

that they might not be 101’: by the fame
Means, whereby they were gained by the
Continuation of External Forces of Standing-
Armies, Caﬂles, Garifons, Munitions, and
other Aéts of Power and Force, f0 as there-
by to over-bear and prevent an ordinary
Poliibility of the Prevailing of the con-
quered or fubdued People, againﬂ: the
Conquerbr or Viétor. He that lays the
Weight of his Title upon Viétory or Con-
quef’t, rarely reﬂs in it as a compleat Con-
queﬂ, till he has added to it fomewhat of
Confent or Faith of the Conquered, fub-
mitting voluntarily to him, and then, and
not till then, he thinks his Title fecure, and
his Conquef’t compleat: And indeed, he has
no Reafon to think his Title can be other—
wife {ecureg for where the Title is meerly
Force or Power, his Title will fail, if the
Conquered can with like Force or Power
overmatch his, and fo regain their former
Intereﬂ or Dominion.

Now this Confent is of Two Kinds, either content,
Exprefs’d, or Imply’d. An Expreis Confent I. Expreti
is, when after aVié‘tory the Party con- ﬁd-
quered do exprefly fubmit themfelves to the
Viétors, either ﬁmply or abfolutely, by De-
‘dition, yielding themfelves, giving him
their Faith and their Allegiance; or elfe
under certain Paéts, Conventions, Agree—
ments, or Capitulations, as when the {ub-
dued Party, either by themielves, or by
‘Subﬁitutes, or Delegates. by them chofen,
(10 yield their Faith and their Allegiance to
the Vié’tor upon certain Paéts or Agree-

ments

 
 

2.

ed

78

Impﬁ;,

 

ﬁtbe 1111110231 of the Ch. 3';
ments between them; as for holding or
Continuing their Religion, their Laws, their
Form of Civil AdminiﬂratiOn, (9?.

And thus, tho’ Force were perhaps the
Occaﬁon of this Confent, yet in truth ’tis
content only that (is the true proximate
and ﬁx’d Foundation of the Viétor’s Right;
which now no longer ref’ts barely upon ex-
ternal Force, but u ‘on the exprefs Confent
and Paét of the fuhdu’d Pe0ple, and con-
fequently this Paét or Convention is that
which is to be the immediate Foundation of
that Dominion; and upon a diligent Ob~
fervation of moﬂ: Acqueﬂs gotten by Con-
quelt, or fo called, we {hall ﬁnd this to be“
the Concluﬁon of almoi’t all Viétories, they
end in Deditions and Capitulations, and
Faith given to the Conqueror, whereby
oftentimes the former Laws, Privileges,
and Pofi’ellions are conﬁrmed to the Sub-
dued, without which the Viétors feldoni
continue long or quiet in their New AC~
quef‘ts, without extream Expence, Force,
Severity and Hazard. _ 1
An implied Confent is, When the Sub
dued do continue for a long Time quiet,
and peaceable under the Government of
the Viétor, accepting his, Government, {ub-
mitting to his LaWs, taking upon them’ the
Ofﬁces and Employments under him, and
obeying and owning him as their Gover-
nor, without oppoﬁng him, or claiming
their former Right. This feems to be a
tacite Acceptance of, and Alfent’ to him;
and tho’ this is gradual, and pollibly no

4. deter-A
Ch. 3. _ trimaran 11.th of England. 79

Heterminate Time is Printed, wherein a Man
”can fay, this Year, or this Month, or this
Day, fuch a tacite Confent was compleated
and concluded 5 for Circumﬁances may
'make great Variations in the Sufﬁciency of
the Evidence of fuch an Aﬁ'ent; yet by a
long and quiet Trait of peaceable Submif.
from to the Laws and Government of the!
Viétor, Men may reafonably conjeéture,
' that the Conquered have relinquiihed their
Purpofe of regaining by Force what by
Force they loﬁ. .

But ﬁill all this is intended of a lawful
Commit by a Foreign Prince or State,
and nor an Ufurpation by a Subject, either
Upon his Prince or Fellow Subjeét; for fe-
veral Ages and Defcents do not purge the
Unlawfulncfs of fuch an Ufurpation.

Secondly, Concerning the feveral Kinds of 2. The
Conquei’ts, and their Effeéts, as to the Al- Kinds and
teration of Laws by the Victor. There Eﬁcas 0f
feems to be a double kind of Conqueﬁ, Conqueﬁ.
which induces a various Conﬁderation touch—
ing the Change of Laws, rviz. Viéi‘orz'a in
Regan (P'Populum, 6" Vit‘hria in Regem tamum.

The Conqueft over the People or Country,
is when the War is denounced by a Prince
or State Foreign, and no Subjeé‘t, and when
the Intention and Denunciation of the War
is againﬂ the King and People or Country,
and the Pretenﬁon of Title is by the Sword,
or Stare Belli; fuch were moﬂ of the Con-
queﬂs of ancient Monarchs, vie. The AV}-
n'an, Pcrﬁm, Grmim, and Roman Conqueﬁs;
and in fueh Cafes, the Acquiﬁtions (if the

idiot

 
 

 

 

.80

me muggy ,ut‘tbe on;

Victory/ere abfolute and univerfal, he gain’d
“the Intere‘ﬂ and Property of the very Soil
‘o’f thegCountryfu-bdued; which the Victor
might, at his Pleafure, give, fell or ,arrent:
.He gain’d.,a Powerof abolifhing or chang—
ing‘their Laws and‘Cuﬁoms, and of giving
New, or ofimpoﬁng the Law of the Vi-
,étorTs Country. ' But- although this the Con-
queror might do, yet a Change of the Laws of
the conquered Country was rarely univer-
jfally made, efpecially by the Roman: : Who,
though in, their own particular Colonies,
planted in conqueredrCountries, they ob-
“ferved the Roman Law, which pofiibly m‘ight
.bnyegrees, without any rigorous Impoﬁ-
tion, gain and inﬁnuate themfelves into

,the‘ conqueredPeople, and to gradually

obtain, and infenﬁbly conform them, at leaﬂ:
f0 many of them as were conterminous to
the Colonies and Garifons to the Roman
Laws 5 yet they rarely made a rigorous, and
univerfal Change of the Laws of the con-
queted Country, unlefs they were fuch as
were foreign and barbarous, or altogether
inconﬁi’tent with the Victor’s Government:
But in Other Things, they commonly in-
dulged unto the Conquered, the Laws and
Religion of their Country upon a double
Account, viz. '

Erﬁ, On Account of Humanity, thinkin
it a hard and over-fevere Thing to impo e
prefently upon the Conquered a Change. of ,
their Cul’toms, which long Ufe had made
dear to them. And, all], Upon the Accoun;
1 o
l ,
ch: 5» Grumman'itam nf'BngIand. 1831*

‘ aimi’rudenceg for the Roman: being a Wife The 1&9; ‘ '
Enid" experienced People, foundthat thofe man/in-
Ihdulgences made their Conqueﬁs the more. d'ulgcd ‘ '
dairy, and their Enjoyments thereof the more“? "‘3":
ﬁrm, when as a rigorous Changeof the Laws‘flg’e‘g‘ d m
and Religion of the People would render’f‘a‘;s and
them in a reﬁlefs and unquiet Condition, Religion.
and ready to lay hold' of any Opportunity

Of Defeétion or Rebellion, toregain their
ancient Laws and Religion, which ordinary

Peeple countmof’t dear to them; (though

at thisDay the Indulgence of a Paganiﬂs
Religi’dn is not ufed to be allowed by‘any’
Ghriﬁian Victor, .as’ is obfervedv'in Calvin’s

(Safe in the Seventh Report 5) and to give-

Qhe Inﬂance for all, it was upon this Ac—

c‘ount, That though the Rowan: had. wholly
fubdued Syria and Pale/limit, yet they allow’d

to the Inhabitants the ﬂaw, 85¢. the Ufe of

their Religion and Laws, 12) fat forth as
c‘bnﬁl’ted‘ with the Safety and Security of

the V iétor’s Interef’t: And therefore, though

they referved to themfelves the Cognizance
o‘f"‘fuch Caufes as concern’d themfeives,

their Oﬂicers or Revenues, and fuch Cafe;

it might otherwife dii’turb the Security of

their Empire, as Treafons, Infurreétions,

and the like; yet ’tis evident they indulged

the People of the E‘ewr, &c. to‘ judge by

their own Law, not only of fome Criminal
Proceedings, but even of Capital in fome

Cafes, as appears by the Hillary of the
Gofpels, and Aéts of the“Apoﬁles.

G But

 
 

82

Conqucﬁ
upon» -
Terms
and Capi-
tulations.

as; airing? attire , Chas--

But f’till this was but an Indulgence, and
therefore was refumable by the warm, un-
lefs there intervened any CapitulatiOn be-
tween the Conquerorand the Conquered
to the contrary 5 which was frequent, efpe—
cially in thofe Cafes, when it wasqn'o‘ta-

‘ compleat Conqueﬂ, but rather a Dedition

upon Terms and Capitulations, agreed be-
tween the Conqueror and the Conquered;
wherein ufually the yielding Party-fecured
to themfelves, by the Articles of their De-

7 dition, the Enjoyment of their Laws and

~Religion; and then by the Laws of Nature:

and of Nations, both which oblige to the.
Obfervation of Faith and Promifes, thofel
Terms and Capitulations were to be ob-
ferved. Again, 2‘11], When after a full
Conqueﬁs, the conquered People refumed ('0‘
much Courage and Power as began to put:
them in a Capacity of regaining their for-
mer Laws and Liberties. This commonly
was the Occaﬁon of Terms and Capitula—
tions between the Conquerors and Conque~
red. Again, gall], When by long Suc-
cefiion'of Time, the Conquered had either
been incorporated With the conquering Peo-
ple, whereby they had worn out the very
Marks and Difcriminations between the
Conquerors and Conquered; and if they
continued dif’rinét, yet by a long Prefcrip-'
rion, Ufage and Cui’ro‘m, the Laws andl
Rights of’thet conquered People were in a;
manner faded, and the long Permifﬁon of l
the {enquerors amounted to a tacite Con--

ceﬂionl
(:41. 5.. Qtnmmun law of England. 83 ,

cefﬁon or Capitulation, for the Enjoyment
of their Laws and Liberties.

But of this more than enough is laid, be-
caufe it will appear in what follows, That
William I. never made any fuch Conqueﬁ of
Eng-land.

‘ Secondly, Therefore I come to the Second Conqueﬂ-
Kind of Conqueﬁ, «viz. That which-is on— over thc
ly Viﬂoria. in Regem : And this is Where the ng, but
Conqueror either has a real Right razgmt?“
the Crown or chief Government of a. COP 0"
Kingdom, or at leaﬁ has, or makes
fome Pretence of Claim thereunto; and,
in Purfuance of fuch Claim, raifes War,
and by his Forces obtains what he fo pre-
tends a Title to. Now this kind of Con—
queﬂ does only inﬂate the Victor in thofe
Rights of Government, which the con.
quered Prince, or that Prince to whom the
Conqueror pretends a Right of Succeﬂion,
had, whereby he becomes only a Succeffor
jure Belli, but not a Victor or Conqueror
upon the Peeple 5 and therefore has no more
Right of altering their Laws,ror taking
away their Liberties or Pofi'eliiongwthan
the conquered Prince, or the Prince to
whom he pretends a Right of Succeﬂlon,
had 5 for the Intention, Scope and Effect
Of his Viaory extends no further than the
Succeﬂion, and does n0t at all affeé’tzthe
Rights of the People. The Conqueror is,
as it were, the Plaintiff, and the conquered
Prince is the Defendant, and the Claim is.

G 2 a Claim

 
 

 

, . me Ipiffngp of the Ch- '59?

aCIaim of Title to the Crown 5 andbei‘
caufe each of them pretends a Right to the‘
Sovereignty, and there is no other corn-
petient Trial of the Title between'them,‘
they~put theml’elves upon the gréat‘Tri‘al-f‘
by Battle}; wherein there is nothing}
in Queliion touching the Rights of the“
People, but only touching the Right‘of
the Crown, and that being decided by- the,

‘Viétoty, the VietOr comes in as a Sv'ttcieelfor;

andnot 7m? Viﬁofiae, as in relation-to the‘
are their Laws and Religion. ‘ e ., ,

Indeed, thofe that do voluntarily ‘aﬁii’tithei
con “uered Prince, cemmonly undefrgothe’f
{am iHaeziard with him? and doJ as' it were;
putthéiti-Interefl: upon the Hazardand‘ Hike:
of the ﬂame Trial, and‘therefore commonly
fall under the fame Severity with the Cone,”
quoted,- atleai‘r (l’e ﬁrth; becaufe, perchancé‘
the: Vié‘tOr thinks he cannot be feeu're 'With‘s
out it: But yet'Ufage,‘and indeed commonj
Prudence, makes the Conquerors ufeggreatf
Moderation andeil‘crimination in relation
to ifhﬁe Alﬁf’tants-of tihe”conquered Prince 5,
and’to- eXtend this Severity only to the emi:
merit-"and bufy Aﬂil’ta‘nts Ola-«the ‘Caniiered‘,’
and ﬁét-to‘the Gr’egarii, or‘fuch as either by“
Conﬁiaint or by Neceﬂity were enforced to
ferVeaagainf’t him; and as to more alfo,‘ on”
whom they 'exercife-thei‘r'Power,‘ ie has been
rarely done Jure Bgellz" nut Vigoriaei but by;
judiciary Proceeding, as in Cafes" of‘ Treaﬁ
fon, becaufe now the great Trial by Battlef
haspronounCed for the Right of the Con—

,. ‘ ‘ ‘ queroxj,

:Peoples Rights; the moﬂ: Sacred'whereof’
(Sh-*5. @umman 1mm of England. 1-8;

, ueror, and at beﬁ no Man muf’t dare to
y orherwife now, whatfoever Debility
was in his Pretenﬁon or Claim. We {hall fee '

the Inﬁances hereof in what follows.

Tbirdl], As to the Third Point, How the 55- 9t"-
Laws of England ﬂood at the Entry of King 17"”.
mzzzaml. And it feems plain, that a: the m?“
Time of his Entry into England, the Laws, ﬂood"
commonly call’d, The Law: qf Edward the W. L’s
Confeﬂor, ,were then the ﬂanding Laws of BMW-
the Kingdom. Hovedm tens us, in 3 Di-
grcﬂion under his Hif’tory of King Henry II.
that thofe Laws were originally put together
by King Edgar, who was the ConfeiTor’s
Grandfather, viz» Vemm taxman poﬂ mortem
ipﬂm Reglk Edgari ufq; ad Coronationem Sam‘i‘i
Regit Edvardi quad Tempm Continet Sexaginta (9‘

S eptem Anna: prece (ml pretio) Legexﬁpim’ ﬁmt (9'
m: pnetermzﬂée fed poﬂquam Rex Edvardus in
Regno fuit fublimatm C oncilio Baronum Anglia:
Legem Anna: Sexaginm é‘ Septem Sopitam, exci-
tam't (9' conﬁrmatuit, (9“ ea th ﬁc conﬁrmata
'vocata eﬂ Lex Sanfi‘i Edvardi, non quad ipfé
prim- im/cniﬂct tam fal cum pretermiﬂiz fmﬂér 6r
oblivioni penitm (labia a morte ww' fui Regzk
Edgari qui primm inventor ejm fuiﬂé dicimr
ufque adﬁm Tempom, viz. Semgima (/9- Seprem
Annox. And the fame Paﬁhge in totia’cm Ver—
bzk is in the Hiﬁory of Lie/aﬁeld, cited in
Sir Robert Twit/Jen’s Proiogue to the Laws of
King W’ilﬁam I. But although poﬂibly thofe
Laws were colleéted by King Edgar, yet it
is evident, by what is before iéid, they were
augmented by the Confeffor, by that Ex—

‘ ‘ G ; traﬁ

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:1 ‘4‘

 
 

85 the {Diff-02p of tbs Ch. 5:.
tract of Laws before4mentioned, which he
made out of that Threefold Law, that oba
tain’d indbveral Parts of England-3 viz; The
Dani/b, the Mercimz, and the Mﬂ—Saxon Laws.

This Manual (’ as I may call it) of Laws,
ﬂiled, T/Je Confefﬁr’: Laws, was but afmall
Volume, and contains but few Heads, be-
ing rather a Scheme or Directory touching
fome Method to be obferved in the Diﬁrh
bution of]uﬁice,and fome particular Proceed-
ings relative thereunto, efpecially in Matters
of Crime, as appears by the Laws them-
felves, which are now printed in Mr. Lam.-
lmrt’s Saxon Laws, p. 133. and Other Places;
yet the Engliﬂ: were very zealous for them,
no lefs or Otherwife than they aresat this
Time for the Great Clmrter ; infomuch, that
they were never fatisﬁed till the faid Laws
were reinforced and mingled for the moﬂ:
Part with the Coronation Oath of King
Wﬂlz'am I. and fome of his Succeffors.

And this may ferve ﬂiortly touching this
Third Point, whereby we fee that the Laws
that obtain’d at the Time of the Entry of
King Imam I. were the Engliﬂ] Laws, and
principally thof'e of Edward the Confeffor;

“,3, Que- Fourtlﬂy, The Fourth Particular is, The
than. Pretentions of King William I. to the Crown
What of England, and what kind of Conquel‘t he
kind of“ made; and this will be hell rendered and
commit underﬂood by producing the Hil’rory of that
WW“ 1' Buﬁnefs, as it is delivered over to us by the
maldc‘ ancient llil‘torians' that lived in'or pleat

‘ t rat
 

Ch. 5. Grumman Lain of England.

that Time: The Sum, or 722mm whereof,
is this.

King EJward the Confeﬂbr having no
Children, nor like to have any, had Three
Perfons related to him, whom he principal-
‘ly favoured, 'viz. ‘ Iﬂ, Edgar t/‘Etbeli‘ng, the
Son Of Edward, the Son Of Edmond Iron/Me,
Mat. Paris, Amw 1066. Edmund»: autem lam;
ferreum Rex naturalzé: ale ﬂirpe Regum genuir Ed-
wardum é‘ Edwardus genair Edgarum cm“ ale
jure debelmtur Regmlm Anglomm. ' 24]], H4-
rold, the Son of Goodwin, Earl of Kent, the
Conﬁfﬁlr’s Father-imLaw, he having married
Earl Goodwin’s Daughter: And, gdly, William
-Duke of Normandy, who was allied to the
Confeffor thus, viz. William was the Son of
Robert, the Son of Richard Duke of iNora
mana’y, which Richard was Brother unto the
ConfeiTor’s MOther. Vide Hoveden, fubiairio
Anni primz' Willielmi primi. ‘

There was likewife a great Familiarity,
as well as this Alliance, between the Con-
feﬂbr and Duke William 3 for the Confeﬂbr
had often made conﬁderable Reﬁdencies
in Normandy. And this gave a fair Expeéta.
tion to Duke William of fucceeding him in
this Kingdom : And there was alfo, at leaﬁ
pretended, a Promile made him by the Can-
feﬂér, That Duke William lhould fucceed
- him in the Crown of England 5 and becaufe
Harold was in great Favour with the King,
and of great Power in England, and there—
fore the likelieﬁ Man by his Aﬂiﬁance to
advance, or hy'his Oppoﬁtion‘to hinder or

emperare the Duke’s Expeétation, there
(34, was

87

 
 

\.v

Three
Com peti-
tors for
the Crown
ofEnglana’,

Witiﬁoztatgtbe 911353;;

W35 a 'GOﬂFaiﬁ made 'betWCen theg‘Dukei
and Harold in Normandy in the Confeﬂo'r’sllijfeg- i
prime, .‘Th'atﬂggrolol {hon-id, after the Conﬁﬁzr’si
1363615 aim): ,the Dukeﬂin obtaining I (hp-:1
«CFOWﬂagﬁrE/f’iglamz’. ’ ( ”(13.1 Brompten,. [10724- «f
Jim, é¢,.)‘.§h0rtiy after which the Confeﬂzri

died, and then ﬁep’d up-the Three,Com~.4

:pet-itors to the Crown, viz.
. 1. Edgmvpﬁt/oeling, who was indeed fag:
voured "536: the Nobility, but beingvan, Iii--

rf‘dﬂt, Was dYCt‘born by the Power of Harold“

who thereupon began to feet up for himfelf: :
Whereupon;Erlgar', with his Two Siﬁers,,
ﬂed into" Scotlaml; where he, and one of t
his Sifters; dying Without IiTue, Margaret,,

,his miner: Sifter and Heir, married Malcolm, ,

King of Scots; from whence proceeded th‘e’:

' Race of the Scottiﬂa Kings, and ﬁom whom I

Her prefem‘ Majeﬂ] “(green Anne Aj—deri'vezl in a
a (lit-eff am] uninterrhpted Line.

2. Harold, who having at ﬁrﬁ raifed a .
Power ,untler Pretence of fupporting and .

-preferving Duke William’s Title to this King.

dom, and having by Force fupprefs’d Edgar,
he thereupon claimed the. Crown to him-
i’eif; and pretending an Adoption or Be—
queit of the Kingdom unto him by the
Confeifor, he forgot his Promife made to
Duke William, and ufurped the Crown,
which he held but the Space of 9 Months
and 4DaysJ Havedm. ,, ,

3. ZWZZMm, Duke of Normandy, who pre-
tended a Hrohiiie of Succeiiion by the Cm~

fig/fer, and ‘ar-C‘apituiation qor Stipulation by

'HareldforthisArliii’tance5 and had, it feems’,
. - ; 1;;
 

lCh. 5. Grumman ﬂail! 9f England.

{a far interei’ted the POpe in Favour of his
Pretenﬁons, that be pronounced for William
againﬁ boch the Others.

Hereupon the Duke makes his Claim to
the Crown of England, gathered a power—
ful Army, came over, and upon the 14th
of Ofﬁober, Anna 1067. gave Harold Battle,
and overthrew him at that Place in Ste/feat,
Where William afterwards founded Battle,—
iAblaey, in Memory of that Viétory; and
then he took upon him the Government of
the Kingdom, as King thereof, and upon
Cbriﬂmm following was folemnly crown’d
at W'eﬂmin/ler by the AI‘ChbiihOp of Ybrk;
‘and he declared at his Coronation, That he
Claimed the Crown net 7147? Belli, hut ffnre
Succefﬁomk; and Brampton gives us this Ac-
count thereof, Cum nomen Tyrzmm' exborrefce~
ret C9” mmm legitimi principi: induere wallet pe—
tiz’t confecmri ,- and accordingly, fays the fame
thor, the Archbifhop of Turk, in tefpeét of
fome prefent Incapacity in the Archbilhop
of Canterbury, 111mm 1300 adimplevit ipﬁimg;
Gulielmum Regem ml jam Eccle/zle Anglicame
tuena’a (5' confer‘vandez populumque fuum ref}:
regena’um, (/j' Leger r667"!!! Statuena’um, Sacra-
memo fblemniter adﬂrinxit; and thereupon he
took the Homage of the Nobility.

This being the true, though fhort Ac-
count of the State of that Buﬁnefs, there
neccelihrily Follows from thence thoie plain
and unqueli'ionable Conlequences.

Fir/f, That the Conquel’t of King WEI—
Ziam I. was not a Conquel’c upon the Conn-
5 try

 

99

 
 
   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
   
 
  
 
  

 

eye ‘uittazy of the Ch. 5;

try or People, but only upon the King of
it, in the Perfon of Harold, the Ufurper;
for William I. came in upon a Pretence of
Title of Succeﬂion to the Conﬁﬂbr; and
the Profecution and Succefs of the Battle
he gave to Harold was to make good his
Claim of Succelﬁon, and to remove Harold,
as an unlawful Ufurper upon his Right;
which Right was now decided in his Fa-
vour, and determined by that great Trial
by Battle.

Secondly, That he acquired in Confe-
quence thereof no greater Right than what
was in the Conﬁﬂir, to whom he pretended
a Right of Succeﬂion; and therefore could
no more alter the Laws of the Kingdom
upon the Pretence of Conqueﬁ, than the
Conﬁﬁr himfelf might, or than the Duke
himfelf could have done, had he been the
true and rightful Succeffor to the Crown,
in Point of Defcent from the Conﬁﬂiar; nei-
ther is it material, whether his Pretence
were true or falfe, or whether, if true, it
were available or not, to entitle him to the
Crown 5 for whatfoever it was, it was fuf-
ﬁcient to direct his Claim, and to qualify
his Victory fo, that the :75” Beili thereby
acquired could be only Vic'foria in Regent,
final 7207; in Populum, and put him only in the
State, Capacity and Qualiﬁcation of a Suc-
ceﬂbr to the King, and not as Conqueror
of the Kingdom.

Third/y, And as this his antecedent Claim;
kept his Acqueﬁ within the Bounds of a}
Succeﬁbr, and reﬁrained him from the un-!
' limited:
(3h. 3. Qﬁﬂmﬂ'mﬂ mm of England. "9!

limited Bounds and Power of 3 Con-
queror; fo his fubfequent Coronation, Corona-
and the Oath by him taken, is a fur. tionoitha
ther unqueﬁionable Demoni’tration, that

he was rei’train’d within the Bounds of

a SuccelTor, and not enlarged with the
Latitude of a Victor; for at his Corona-

tion, he binds himfelf by a Solemn Oath

to preferve the Rights of the Church, and

to govern according to the Laws, and not
abfolutely and unlimittedly according to

the Will of a Conqueror.

Fourtbly, That if there were any Doubt 4-
whether there might be fuch a Victory as
might give a Pretenﬁon to him, of altering
Laws, or governing as a Conqueror; yet
to fecure from that pollible Fear, and to
avoid it, he ends his Vitiory in a Capitu—
lation 5 namely, he takes the ancient Oath
of a King unto the Peeple, and the People
reciprocally giving or returning him that
Affurance that Subjects ought to give their
Prince, by performing their Homage to
him as their King, declared by the Victory
he had obtain’d over the Ufurper, to be the
Succeﬂ'or of the Confeﬂbr: And confequently,
if there might be any Pretence of Canueﬂ:
Over the Peoples Rights, as well as over
Harold’s, yet the Capitulation or Stipulation
removes the Claim’ or. Pretence of a Con—
queror, and enﬁates him in the regulated
Capacity and State of a Succeﬁbr. And up‘
on all this it is evident, That King William I.
could not abrogate or alter the ancient
‘ Laws of the Kingdom, any more than if
he

— .7 _ W m.-.) W. in _ .. “1;- , w A - i _
A“ . . 4:, A 4- ' ‘ﬁ' z...

..- Meat-x—m,” A-b' . Sn 4 ' .‘f“ ‘ f: I " .
ﬂ 3 . ~ - ‘

I
1
3

 
 

' . . i
,9: ., r ﬁbemiaesztbe Chésirl

he had fucceeded :the Coaﬂﬂér as his. Iawﬁilll
, Heir, and had acquir’d the Crown by that
, peaceable Courfe of De‘feent, without any}
Sword drawn. ' ' '
And thus much may fuﬁice, to fhew than
King William I. did not enter by fuch a:
Right of Conqueﬁ, as did or could alter.
the Laws of this Kingdom.

5”,.ng Thereforel come to the laﬂ: QueﬂionI.
mo“, propofed to be conﬁdered, «viz. Whether Je.’
Whether Fat‘Zo there was any Thing done by King:
V731- 31‘ William I. after his Acceﬂion to the Crown,l
Egg“ in reference either to the Alteration or
° Conﬁrmation of the Laws, and how and:
in what Manner the fame was done: And:
this: being a Narrative of Matters of Faéy
I {hall divide into thofe Two Inquiries,;
Viz. Iﬂ‘. What was done in relation to the?
Lands and Poiiefiions of the EngliﬂJ: Andi
251/}. What was done in relation to the:
Laws of the Kingdom in general; for both ‘.
of thefe will be neceﬂ'ary to make up a:
clear Narrative touching the Alteration OI‘I
Sufpenﬁon, Conﬁrmation or Execution of l

the Laws of this Kingdom by him.
2. Firﬂ, Therefore touching the former,I
«222.. What was done in relation to the:
Lands and Poﬂbﬂions of the Engliﬂa. Thofe :
Two Things muﬁ be premifed, vim. Firﬂ, a
Matter of Right, or Law,- which is this,,
That in cafe this had been a Conqueﬁl
upon the Kingdom, it had been at the Plea; -
fure of the Conqueror to have taken all the :
Lands of the Kingdom into his own PoffelI 1
ﬁon, to have put a Period to all former:
Titles,‘ ,:

   
 
 
   
   
   
 
 
  

 
Ch. ;‘ Qtnmmun mm of England.

Titles; to have cancelled all former Grants,
and to have given, as it were, the Date
and Original to every Man’s Claim, f0 as

to haVe ; been no higher nor anciente‘r than
fuch his Conquel’t, and to hold the fame by

a Title derived wholly from and under,
him. 4‘No nor lay, that every abfolute Con.

queror of a Kingdom will do thus, but that
he may if he will, and have Power tO‘
Cﬁéét if; . .
Secondly, The Second Thing to be pre-
mifed is, a Matter of Fan, which is this;
That Duke Mllz‘am brought in with him a
great Army of Foreigners, that would have
eXpec’ted a‘ Reward of'rheir Undertaking,
and therefore were doubtlefs very craving
and importunate for Gratiﬁcations to be
made them by the Conqueror Again; it is
very probable, that'of the Fiyzglzﬂ: themfelves
there were Perfons of very various Condi-
tions and Inclinations ; fome perchance did
adhere to the Duke, and were Aliif’tant to
him openly, or at leai’t under hand. towards
the bringing him in; and thofe were fure
to enjoy their Poffefiions privately and
quietly when the Duke prevailed. Again,
fame did without all Quei‘rion adhere to
Humid, and thofe in all iirchabiliry were
feve'rely dealt with‘ and difnoi' efé’d of their
Lands, unlefs they could make theiri’erme.
Again, poHibly there were others who
aﬂiﬁed Harold: parth out of Fear and Lom~
pulﬁon; yet thofe. poliihly. if they name of
any Note or Eminence, fared little l‘t-tztr
than the rel’t. Again, there were 2m-

 
 

 

94 . ﬁne ﬂaiﬁnzvnﬁstbt cm;

probably ﬂood Neuters, and medled not;

and thofey though they could not expeﬂ; :=

much Favour, yet they might in Juﬁice ex~
peét to enioy their own. Again, it mull

needs be fuppofed, That the Duke having ;~

fo great an Army of Foreigners, fo many

Ambitious and Covetous Minds to be fads-1 -
ﬁed, f0 many to be rewarded in Point of:
Gratitude; and after fo great a Concuﬂion ~

as always happens upon the Event of a Vi.
é’tory, it muﬂ needs, upon thofe and fuch—
like Accounts, be evident to any Man that.
conﬁders Things of this Nature, that there
were great Outrages and Opprefﬁons com—
mitted by the Vié’cor’s Soldiers and . their

1
1

'1

Ofﬁcers, many falfe Accufations made ‘a— 1-

gainﬁ; innocent Perfons, great Diﬂurbances
and Evictions of Polfeﬂions, many rights
Owners being unjuﬁly thrown out, and
confequently many Occupations and Ufu’r‘g
pations of Other Men’s Rights and PoiTell

lions, and along while before thofe Things-

could be reduced to any quiet and regular z

Settlement.

Wham“ Thefe general Obfervations being «pro-4',

doneaftcr mired, we will now fee what zle Faéfo wasﬂ‘
“‘6 Con- done in relation to Men’s Poﬂ'eﬂions, in

9‘1““ Confequence of this Victory of the Duke.

Io Firﬂ, It is certain that he took into his
Hands all the Demeafn Lands of the Crown,
which were belonging to Edward‘t/Je Can-
feﬂbr at the Time of his Death, and avoid—
ed all the .Difpoﬁtions and Grants thereof

I made

—7 - 77” Wm My :c~~- T”_;
 

Ch. 5. Grumman 31.31!) Of England.

made by Harold, during his fhort Rei n;
and this might be one great End 0 his
making that Noble Survey in the Fourth
Year of his Reign, called generally Doom]?-
day~Read, in fome Records, as Rot. Mm-
ton, éc. thereby to afcertain what were
the PoiTeflions of the Crown in the Time
of the Conﬁﬂér, and thofe he entirely re-
fumed: And this is the Reafon why in
Tome of our old Books it is faid, Ancient
Demeafn is that which was held by King Wil-
liam the Conqueror; and in Others 'tis faid,
Ancient Demeaﬁ; is that which was held by
King Edward the Conﬁ/jbr, and both true in
their Kind 5 and in this Refpec’t, viz. That
wharfoever appeared to be the Confeﬂbr’s
at the Time of his Death, was alﬁimed
by King William into his own PolTef-
ﬁon. ' '

Secondly, It is alfo certain, That no Per;
fon {im ly, and quatenm an Engliﬂ: Man,
was di poﬂ’efs’d of any of his Poﬂ'eﬂions,
and confequently their Land was net pre~
tended unto as acquired jure Belli, which
appears moﬁ plainly by the following Evi-
dences, viz.

Fiijl, That very many of thofe Perfons
that were poﬂ‘eifed of Lands in the Time of
Edward the Confeﬂbr, and f0 returned up-
on- the Book of Doomfu'ay, rerain’d the
fame unto them and their Defcendants, and
fome of their Defcendants retain the fame
Poffel'iions to this Day, which could nor
have been, if prefmtly j’ureBeIéi ac Vigor-Lee

“’11“

95

 
 

96‘

‘ €39 $313029 Of the ' Ch. 5

“assets; the Land‘srofth'e Engliﬂ: had been
veﬂed 'iti'the Conqueror. ' And again,
Séc’axdlyg We do ﬁnd, thatin all Times,

even "fud‘denly after the Conqueﬁ; the;
Charters ofthe ancient Saxon Kings were'
pleaded and allowed, and, Titles. made and'

created by them to Lands, Liberties,‘ Frans
chifes-la'nd Regalities, afﬁrm’d ,and adjudg—i
ed under William I. Yea,’ when’that. Ex-.
ception has been offered, That by the Con;
q'uelt th‘ofe’ Charters had 10?: their Force,

yetithofe Claims Were allowed as in 7 E. g.‘

13:13:85 as mentioned by Mr. Selden‘, in his
thes upon Eadmerm‘, which could not be,’

it'therejhad‘ been fuch. a Conquef’t as had)

veﬁedall Mens Rights in the Conqueror;
fﬁirdb, Many RCCOVeries were had {hortly
after this Con-quef’t, as Well by Heirs as Suc-
ceﬁ'ors of the Seizin of their Predeceﬂ‘ors
before the Conqueft. We {hall take one Or
two Inf’tances for all 5 namely, that famous
Record apua' Pinemlon, by the Archbilhop of
Camerbuty, in the Time of King ZWllz'am I.
of the Seizin and Title of his Prejd'eceﬂbrs
before the Conquel’t : See the whol‘é’Procels
and Proceedings thereupon in the End of
MrrSeZden’s Noces upon Eadmerm; and fee
Sfelinan’s. Glo/ﬁzr}, Title Drencbér; Upon theie
Inﬁances, and much more that ’n'tight be:
added, it is without Contradiétion, That the

R‘i‘ghts’hnd Inheritances ofth'e Englz'ﬂa {ma 777568 ‘

were no: abrogated or impeach’d by, this Conv
net but continued norwithf’canding the
mm; for, as is before obferv’d, it was 39m:

Belli queer] Regem, fed ﬂan quoaél Popular”. B
3 ut

 
Ch. :- crammun mm of Engiand. 97

, But to defcend to fome Particulars: The What
Engli/h Perfons, that the Conqueror had to $23231
deal with, were of Three Kinds, ruiz. Fir/Z, difpoﬂef;
Such as adhered to him againl’t Harold the cd.
Ufurper; and, without all Quef‘rion, thofe
continued the Poiieﬂion of their Lands,
and their Poifeiiions were rather encreafed
by him, than any way diminifhed. Second-
ly, Such as adhered to Harold, and Oppofed
the Duke, and fOught againﬁ' him; and
doublefs, as to thofe, the Duke after his
Vié’tory ufed his Power, and difpoffefs’d
them of their Eﬁates : Which Thing is ufual
upon all Concluﬁons and Events of this
Kind, upon a double Reafon; Iﬂ, To fecure
himfelf againi’t the Power of thofe that op-
pos’d him, and to weaken them in their
Eﬁates, that they ihould not afterwards be
enabled to make Head againi’r him. And,
2:11, To gratiﬁe thofe that afﬁi’red him,
and to reward their Services in that Expe-
dition; and to make them ﬁrm to his Inte-
reﬂ, which was now twif’ted with their
own: For it can’t be imagined, but that the
Conqueror was afﬁﬁed with a great Com—
198W of Foreigners, fome that he faVOur’d,
ome that had highly deferved for their
Valour, fome that were neceiiitous Soldiers
of Fortune, and Others that were either
ambitious or covetous: All whole Delires,
Deferts, or Expeétations, the Conqueror
had no Other Means to fatisﬁe, but by the
Eﬁates of fuch as had appeared open Ene-s
mies to him; and doubtlefs, many innocent
Perfons fuffered in this Kind, under falfe

H Sug-

 
 

23-.

etc error at ,th this;

‘ Suggeftions and Accufations, Which occa-

lioned great Exelamations by the Writers of
thofeTimes againf’c the Violencies and 0p».
prefiions which were ufed after this Viéros

' ry. And, Thrall], Such as ﬂood N enters, and
,meddled nor on either Side during the Con-s

troverﬁe: And doubtlefs, for fame Time
after this great Chan 6, many of thofe fuf-g
feted very much, an were hardly ufed‘ in
their Ef’tates, efpeciallyfuch as were of the
more Eminent Sort. , _'

Ger‘vaﬂm Wléurienﬂr, ,Who wrote in the
Time of Hen. 11. Libra 1° Cap. @561 Mar.
drum (‘2' guare ﬁc diffum, gives us a large
Account of what he had traditionally learn-
ed touching this Matter, to this Eileen viz,
Po]! Regni‘Conquiﬁtionem (7* Perdaelliam Suﬁ.
jeﬁionem, SIC. Nomine autem Succeﬂiomk ﬁreme-
poriém fubaétae Gentis nibilﬁbi Vendicarent, 866.
z‘. e. After the Conqueﬂ of the Kingdom,
and Suhjeétion of the Rebels, when the
King himfelf and his great Men had fur-e
veyed their new Acquiﬁtions; and ﬁriﬁ
Inquiry was made, who there were that,
ﬁghting againﬁ the King, had favedtheme

'felves by Flight : From thefe, and: the Heirs

of fuch as were ﬂain in Battle, ﬁghrin

againﬂ: him), all hopes of Succeflion, or o,
poifeﬂing their Eﬂates; for the People be-
ing fubdued, they held their Lives as a
Favour, 6%.

But Gerwﬁ, as he fpeaks f0 liberally in
relation to the Conquef’r, and the 52122252?
Gem, as he terms us; fo it lhould feem, he
Was in great Meafure miﬁaken in this Re-

lation :

 
(311.5. Qtummau 11min of England. - 99

lation : For it is mof’t plain, That thofe that Lands of
were n0t engaged vilibly in the Alﬁl’tance mum"
of Harold, were not, according to the Rules $250"
of thofe Times, diiabled to enjoy their Pof- '
fefﬁons, or make Title of Succeﬂion to their
Anceﬁors, or tranﬁnit to their Pol’terity
as formerly, tho’ pollibly fome Oppreﬂions
might be ufed to particular Perfons here
and there to the contrary. And this ap-

‘ pears by that excellent Monument of An-
tiquity, fet down in Sir H. Spelman’s Gloﬂény,
in the Title of Drenc/Jes or Drenger, which
I {hall here tranfcribe, viz.

Edwinus :12 Sharborne, Et quidam alii gui
itjcéfi fuerum é’ Terrz'rﬂtir aéiemnt ml conque-
ﬂorcm (’9' (Zixerzmt ei, quad nunquam tmte con-
queﬂ'um 7166 in tongue/21m; nec poﬂ, fucrzmt con-
tra Regem 7' ﬁtm inCancilio am in auxiiio fed
tenuerunt ﬁe 2'72 pace, Et boo pamn' ﬁmt probare
qzmlz'ter Rex “(lei/6t Ordinare, Per quad idem Rex
facit Inquiri per tot/1m Aug/mm ﬂ in: fair, quad
guide»; prolmmm fm't, propz‘er gnarl idem Rex
pnecepit at 07717165 illi quiﬂc temzerzmt [2) in pace
in ﬁrma pnea'z'c‘i‘a quad ip/z' rebm’zermt 07mm
Term: é” Dominatiom: fuzz; adeo integre é“ in
pare ut zmquam babuemnt vel tenuemm zmte con-
qyeﬂum ﬁmm, Er quad z'pﬂ in poﬂerum women-
rmr Drenger.

But it feems the PolTeHions of the Church Church
were net under this Difcrimination, for Lmdsnot
they being held not in Right of the Per- canﬁfca'
lbn, but of the Church, were not ﬁrbjeét to te ‘
any Conﬁliation by the Adherence of the

I 2 P01}

 
160

Charters
for re-
ﬂaring
Lands to
Churches
6‘1.

 

the 119mm of the Ch; ‘3‘;

Poff'eﬂ'or to Harold the Ufurper: And there-
fore,.tho’ it feems Stigand Archbiihop of
Canterbury, at the coming in of William I.
had been in fome Oppoﬁtion againﬂ him,
which probably might be the true Caufe
why he perform’d net the Ofﬁce of his
Coronation, which of Right belonged to
him, tho’ forne Other Impediments were
pretended, Vide Eadmerm ii: initio Librz', and
might alfo poﬂibly be the Reafon why a
conﬁderable part of his Poffeﬂionswere
granted to Odo Biihop of Bayonne, but were
afterwards recovered by Lanfmné, his Suc-
celTor, at Pin'ena'on, in plena Comitam, 21172 Rex
frat-spit totum Comitatum abfque mom con/21
Jere, (9' bomine: Comitan‘t: 0mm: ancigeno: é”
proscipue Anglo: in'antiqua} Legibu: (9’ Conﬁdent;—
dinibm peritos, in unum com/mire.

To this may be added thofe feveral Grants
and Charters made by King William I. men-
tioned in the Hiﬁory of Ely, and in Eadme-
rm, for Reﬁoring to Bifhopricks and Abbies
fuch Lands, or Goods, as had been taken
away from them, viz.

PVillielmm Dei gratia Rex Anglamm, Lana
ﬁanco Arcbiepzﬂ‘opo Cantuar’ 6" Galﬁz'da Epi-'
ﬁapo Conﬁantiarum & Roberto Comiti de on @‘
Riclmrdo ﬁlio Comitzk Gileberti é’ Hugoni (I:
Monteﬁrti, ﬁtifque alii: proceribu: Regm' Angliae
falutem. Summonete Vicecomite: meo: ex meo p722-
crpto, é’ ex parte mm ei: dicite ut reddant Epi—
[copatilzm mei: é‘ Abbatii: totum Dominium om.
rchque Dominica: term: qua; ale Dominic Epiﬂ‘O'
panama meow-um, (9‘ Abbetiamm, Epzﬁopi ”(2’25 69' t

(”(5

 
Ch. 5. crammun m: of England.

Abbare: ea} 'vel lenitate ruel timare ml cupiditate
dedemnt val babere confenfemnt vel ipfi rw'alemia
ﬂea imz'e abﬂraxerum, (9' quad baéfenm inju/fe
paﬂiderunt de Damim'o Ecclefz'arum mearum. Et
, niﬁreolaliderintﬁcut ea: ex parte mea fummanebitia,
'vas ipfo: «velint nalz'nt, canﬂringite reddere; E:
guod [i quililaet alias 'vel aliqui: 'veﬂmm guilzm
bane jufh'tiam impofati ejufdem quereleueﬁt
redolat [imiliter guod ale Domino Epifcapamum we!

Abbatiamm meamm bolmit ne propter illml quad .

inde aliqui: eve/hum loo/yeah, minus exerceat jitper
mea: Vicecamite: ruel alias, quieunque teneont
Daminium Beale/112mm mearum, quad Preeaipio,
0'0.

Willielmm Rex Anglarum omnibus fur): ﬁdelilzm
fm (5" Vicecamitilam in quorum V icecomimtibm
Abbatia do Heli Terr/t5 babe: falutem. Przeez'pia
ut Abbatia pred. babeat 0mm: canﬁtituzlines fem;
ﬁiliaet Sacebam é‘ Soc/mm Tall (’9' Team (3‘ In-
fangonezberf, Hamﬁwua (’9‘ Gritbbriee Fit/awiz‘e
é‘ Feidam’te inﬂa Burgum 69‘ extra (9' amne:
alien fareafaéfums in term ﬁm fuper fua: bamines
ﬂout balmit Die qua Rex Edward-us fair Vivus
& mortuus, (a'ﬁcut mea ju/jiane dirationatx:
apml Keneteford per plures Scyras aim meos
Boranes, Viz. Galfrialum Conﬂomientem Ep. 67'
Boldewine Abbatem, &C. Te/ie Ragero Bigot.

lellielmm Rex Angl. Lanframo Arabiepo‘, 6-,"
Ragera Comiri Moriraniee, é‘ Galfrido Canﬂ‘m-
tien Epa. folutem. .Mamla wink W Pnecipz’a
w iterum focion‘s cangregari amne: Sow-M and:
interfuerzmt plaeito babita do Terrzk‘ Earle/Z: 11a
Heli, ameqmzm meet confuse in Normoninm nae
wiﬂime venirer, mm quibm‘ etiamfmt tie BMW}
has mm, 3245 aom‘pefemer Maﬁa pamim if?

g 5.97 mi}?! a

IO!

 
 

1‘02

- @132 mm? nﬁtbz Ch. 5-;

praediﬁo placit‘u interfuerint (9‘ qui term: ejuf—
dem Eccleﬁpe tenent; Q05”; in unum congrep

i

gum eligantur p‘lures dc iliis Anglis qu; fcz'um: ‘

guomoa’o Terne jacebant prgefam Eccleﬁae Die '

gm Rex Edward“: Obiii‘, &' gum! imle dixerz'nt
ibidemjure jamndo‘te/ienmr; qua faﬁo reﬂz'mme
tur Eccleﬁte terrqe gate in Dominica fuo emnt die
obitm chzér Edward? 5 Excepm bzér qua; bomine;
clamalmnt me ﬁbi dea’zﬁg illw mm Lita-13' mi/Ji
ﬁgniﬁmte qua? ﬂm‘, (9‘ qui em tcnent; @u' my
fem tenent Heinlandes qua? Proculduéio deben;
teneri ale Eccle/ipz faciant concam’iam cum Abbott?!
guamﬂdelz’arem poterimt,‘ @- [z‘ noluerzmt term:
wmzmmnt ad Eccleﬁzzm, Hoe guogue detinentibm
Socbamzé’ Saccam‘ﬁat, SEC. ‘

. Willielmm M‘Anglmmm, Lanﬁ‘anco Arabic"
pifc’, (’9' G. Epifc. é" R. Comz'tz' M. ﬁzlu:
tam, &c. Defendz'te ne Remigius Epifcopus
novas confuetudines requirat infra Iﬂﬁtlam
dc Heli, Nola em'm guod i192 babeat niﬁ illud
quod Anteceﬂbr ejus habebat Temporc
Regis Edwardi SciZicet qua die z'pﬁ: Rex worm”;
eff. Et/z‘ Remig. Epifcopm imZe Placitarevo—
luerit placitet inde ﬁcut feciffet tempore
Regzér Edw. «9' placitum iﬂum ﬁt in veﬁra
prxﬁmia; De cuflo/Iizz ale Norguic Abbatem Si-

'meonem gaietum eﬂé demittite; Seal ibi municio—

mm ﬁmm éonduci faciat (fr caﬂodz’ri. Facii‘e
remanere placitum de Terris’ gum Calumnian-
fur W'illz'elmm de m, (? Radulpbw ﬁliw Guzzle-
mnm', é’ Robertw Gemm; z inde placitare
noluerint ﬂour inde placitaifent tempore
Regis Edwardi, é’ ﬂat! in eodem tem ore
£55411}: confuetudines fuas babebat, M9 0 at
cm omninofaciatzk habere ﬁcutAbe per Char;

' ‘ ' i as
Ch. 5- crewman ﬂab) 0f England. 103

tas fuas, (9' per Teltes fuos m deplacitare
poterit.

I might add many more Charters to the Ecdeﬁa.
foregoing, and more efpecially thofe fa- ﬁicaljus
mous Charters in Spelman’s Councils, Vol. 2. £1313”:
Fol. r4. & 16;. whereby it appears, That gggfgge
King W'illiam I. Communi Concilio, (’9' Concilio Temporal
Archiepifcopomm, Epiﬂ‘opomm é‘ Alibzzmm, 6"
omnium Principum 6‘ Baronum Regni, inl’tituted
the Courts for holding Pleas of Eccle—
ﬁaf’tick Caufes, to be feparate and diﬁinéi:
from thofe Courts that had Jurifdiétion of
Civil Caufes. Sezl rle In": plufqnamﬁztix.

And thus I conclude the Point I firﬁ;
propounded, viz. How King William I.
after his Vié‘tory, dealt with the Poffellions
of the Engliﬂi, whereby it appears that there
was no Pretence of an Univerfal Conqueﬂt,
or that he was a Victor in Popnlnm 3 neither
did he claim the Title of Engliﬂa Lands upon
that Account, but only made ufe of his
Vie‘tory thus far, to feize the Lands of fuch
as had oppos’d him: Which is univerfal in
all Cafes of Vietories, tho’ without the Pre-
tence of Conqueﬁ.

Secondly, Therefore I come to the Second 2d Que-
general Queftion, viz. What was done in Prion,
relation to the Laws? It is very plain, that
the King, after his VictoryJ did, as all wife
Princes would have done, endeavour to
make a ﬁriéter Union between Eliglr'lﬂd and
Normandy; and in order thereunto, he endea-
voured to bring in the Fremlr inﬁead of the
Saxon Language, then ufed in England: De—

« libnmvir

. ‘1

 
 

194

Wtﬂiam I.
Endea-
voured a
Union,

in the
Language
and Laws
of England

and Nar- ,

wand].

W:

@132 within: of the . Chg-j.

liberate/it (fays Holcot) quomoalo Linguam-Saxonic
cdm 'poﬂit deﬂruere, (5‘ Anglicam €17" Narmani-
cam idiomate concordare (9' idea ordina'vit quail
11311125 in Carin Regan" placimret niﬁ in Lin
Gallic/1, 6%. From whence arofe the Pra&1ce ,
of Pleading in our Courts of Law in the
Norman or French Tongue, Which Cuﬂom
continued till the Statute of 36ng 3.1:. 1;;
And as he thus endeavoured to make 3'
Community in their Language, f0 pombly'
he might endeavour to make the likein their
Laws, and to introduce the Norman Laws
into Eﬂgland, or as many of ’em as he thou ht
convenient; and it is very probable, ‘t 36
after the Victory, the Norman Nobility and
Soldiers, Were fcattered through the whole
Kingdom, and mingled With ’the E71 lijh', ’
which might pombly introduce fome o the
Norman Laws and Cuf’toms infenﬁbly into
this Kingdom; and to that End, the Con-
queror did induﬂriouﬂy mingle the Englth
and Norman: together, ﬂluﬂiing the lyqrméni
into Engliﬁ: Poffeﬂions here, and putting 'the'
Englijh into Poffefﬁons in Normandy, and
making Marriages among them, efpecially
between the Nobility of both Nations. ’
This gave the Englz'fh a Sufpicion, that
they fhould fuddenly have a Change of their
Laws before they were aware of it. But it.
fell out much better: For ﬁrﬂ, there ariﬁng
fome Danger of a Defeétion of the Engliﬂz,’
countenanced by the Archbifhop of Ybrk in

' the Non/a, and Frederick, Abbot of St. Alba:

in the South ,- the King, by the Perfwaﬁons of
Lanﬁ'ank, Archbiﬂmp of Canterbury, Pro [zone

,. Pd‘é

m , - w..." T— “‘_ -y-mm’
Ch, 5, (mammal) m: of England.

pack apud Berkbamjlwd jumrw't ﬁrper Animw
feli’quim Sam‘fi Albam' taﬂz'fque Sacra/kWh
Eva‘hg‘elizk (miniﬂr‘kmtejummento Algbaie Frede-
ric‘o) at bonm'e’?’ approbam: antiqua: Regni Lege:
guwﬁmﬁi é‘ pii Anglia Rege: eju: Anteceﬂérer,
(‘4? inaxime Rex Edward”: ﬂamit inwiolabiliter
ébfertvaret; Er ﬁe paciﬁcati ad propria l¢ti rece];
femnt. Ville Mat. Parr}: in Vim Frederici A54
hm? Sanfh' Albani. ’ ’ ' I a
’ But altho’ 'now, upon this Capitulation,
the ancient Englijh Laws Were COnﬁrm’d,
an‘c‘l namely, the Laws of St. Edward the
Conﬁﬂér; yet it appeared not what thofe
Laws were: And therefore, in the Fourth
Year of his Reign, we are told by Homdcn;
in a Digrelﬁon he makes in his Hiﬂor
under the Reign of King Hen. II. and a1 0
in the Chronicle of Lite/aﬁeld:
Mllielmm Rex, Anna quarto Regniﬁai Conﬁliq
Baronum [210mm fecit Summomzri Per Univerﬂ:
Conﬁllatds Angliée, Anglo: Nobiler é’ Sapient“ é‘
ﬁm Lege erudito: ut comm jum & confhetudinex
a]: ipﬁs audiret, Eleéi‘ir igimr ale ﬂﬂgulis‘ totim‘
Patriae Comimtibm 'viri (luozlecim, jurejurando
cénﬁrmamrum at 71404111 poﬂr‘m reﬁo tramitc
neque ad Dextmm n'eque ad Siniﬂmm artenb'
diverteme: Legum ﬁmrum' confuetttdz‘nem , ﬁm-
citam patefacerent nibil praeterinittenter nibil 447
dentes, nibz’l pnervarimndo mutant“, &C. I And‘
then fets down many of thofe ancient Laws'
approv’d and conﬁrm’d by the King, and
Commune Concilg'um; wherein it appears, that:
he feems to be mol’t pleafed with thofe Laws
that came under the Title of Lex Danica,
as mol’c conlonant to the Norman Cuﬁomsa

.25:

1°}

The
Englzﬁ
ws
Conﬁrm-
ed. , "

 
M @112 mm? of we Ch. 5.
.2140 agdim max univerjz‘ compatrioti "qui Legs;
dixerin; Triﬂe: eﬁﬁi, 14720 Mini/ferio deprecdtqi
ﬁmt qtmtenm permitteret Lege: ﬁlzi propriety (9'
confidetadme: antigurt: baéere in quibm 'vz'xerunt
Panes, é" ipfi in ii: mzi d7: nutriti ﬁmt, quid
durum Valde ﬁbi fore; fufcipere Le ges ignoy
tas, 8a indicate de iis qua: nefciebant; Reg:
even) at! ﬂeﬂendum ingmto exiﬂenre, tandem cum
perfecuti ﬂmt deprecante: quatenm pro Anima Regic
Edvardi gm’ emﬁtb diemfuum e13 conceﬂémt Barm-
ne: é’ Regmmz 5)“ cujm omnt Lege: mm aliomm‘
extraneorum cogere qua»; fab Legibm per/Emma

The a“. patria‘r; Unde Conﬁlz’o habito Pmmtm' Barman;
ﬁﬁr's ' tandem acquiwit,‘ &c.

Laws ' Ger'wEﬁm \T’z‘lburienﬁs, who lived nearer that
Conﬁrm;- Time, peaks fhortly, and t0 the PUTPOE:
991- ghus: Prapoﬁti: Legilmit Anglicamlr fecundum

triplicitam, eamm Di/Einﬁiomm, i. e. Marchin-
lage, Weﬁfaxomlage, (9' Dane-Iage gm];
dam eamm rfprofmm gun/Ham mtem appro-
Emm, Ellis :72sz marina: Lege: Neuﬂrize qua: ad
Rjgni Pacem tuendam eﬁmciﬂime raidebantm,
a jecz't.
So that by this, there appears to have
been a double Colleé’cion of Laws, viz.
Fir/f, The Laws of the Conﬁﬂér, which
were granted and confirmed by King Ml—
Zz'am, and are alfo called the Laws of King
William, which are tranfcribed in Mr. Sal'-
Jen’s Notes ypon EaJmerm, Page 17;. the
- Tide whereof is thus, «viz. H¢ﬁmt Lege:
if? Conﬁtetudim: gum Mﬂielmm Rex concqﬂz‘t
ami'verﬁ papalo Angli‘e poﬁ fubnﬁam Termm
Mdem ﬁmt qtmvx Edvardm Rex cagnatm ejm
ag’rﬁrw'vit am‘e mm:- And thefe feem to be the
very

 
Ch. 5. crewman mm of England.

very fame that Ingulfm mentions to have
been brought from London, and placed by
him in the Abbey of Crowland in the Fifteenth
Year of the fame King William, attulz' eadem
Vice mecum Lovzclini in meum Monaﬁerium Legum
Volumen, &C.

16}

Secondly, There were certain additional And
Laws at time eﬁablilh’d, which Germ/{m Others
Yllbm‘lenﬂs calls, Lege: Nell/fries quce ﬁcaciﬂmx added,

'virlebanmr ml tuemlam Regm' pacem; Which
feems to be included in thofe other Laws of
King William tranfcribed in the lame Notes
upon Eazlmerm, Page 189, 19 3, (do. which in«
deed were principally deﬁgned for the Ei’ca-
bliﬂnnent of King William in the Throne,
and for the fecuring of the Peace of the
Kingdom, efpecially between the Engliﬂ: and
Normans, as appears by thefe Inﬁances, viz.
The Law de Murdro, or the Common
Fine for a Blown/m or Frenchman ﬂain, and
the Offender not difcovered : The Law
for the Oath of Allegiance to the King:
The Introduction of the Trial by ﬁngle
Combat, which many Learned Men have
thought was not in Ufe herein England before
William I. And the Law touching Knights
Service, which Bmflon, Lil. 2. fuppofes to
be introduced by the Conqueror, rw'z. Q4011
omnes Comite: M'iliter é‘ Serviente: (9' uni-verﬁ
liberi 1707225725 totim Regm' babe/mt (’9‘ teneant
ﬂ: ﬂ'mper {26m in Armzk 0‘ in Equix ut dccet (9‘
quad ﬁnt fempcr promptl é’ lime parati ad Seru
'vitium 1mm inregmm 7205i; explemlum (’9' per:
agendum mm ﬁmpw 0pm afueritﬁcundum quail
Mlle rle Feoa’a g-lrlcazttff‘ﬂmmmm ﬁm dc yurefa—
cerc

 
 

108

we ilpittnzyiuf the ‘ Ch. 9‘

cereé' ﬁrut illzk ﬂatuimm per Commune Concilizms
totim Regm‘ noﬁri pnedic‘li, é'illi: dedimmé' c022-
ceﬂimm in Feado jure beerezlz'tario; Wherein we
may obferve, that this Conﬁitution feems to"

oint‘ at Two Things, 'Uiz. The aﬂizing of
£4611 for Arms, which was frequent under
theTit‘le De. afﬁdemla ml Anna, and is after-,-
Wards particularly enforc’d and rectiﬁed
byithe Statute of PVintan, 1; E I.- and next
Of Conventional Services referved by Te.
”are: "upon Grants made out of the Crown
or Knights Service, called in Latin, Forinfe.
cum, or Regalé‘l'Ser-‘witiam. ~
- And Note, fl‘hat theft: Laws were not im-
pofed aal Libir‘um Regis, Bit: they were fuch
as were'fettled. p'er Commune C‘oncilium Regm',
and pofﬁbly at that ver’y’Time when Twelve
out of every County were return’d to aﬁ
certain the Canﬁﬂér’s Laws, as before is men-
tioned out of Hoveden, which appears to be
as fuffrcient and effectual a Parliament. as
ever was held in England. ‘ ‘ *
. ‘By all‘which it is apparent, Fir/l, That
William I. ‘did n0t pretend, nor indeed could
he pretend, nomithﬂanding this Nominal
Conquelt, to alter the Laws of this King—
dom without common Confent in Communi
Concilio Regm', or in Parliament. And, Seawall,—
I}, That if there could be' any Pretence of
any fuch Right; or if in that turbulent Time
fomething of that Kind had happened 5 yet
by all thofe folemn Capitulations, Oaths;
and Conceflions, that Pretence was wholly
avoided, and the ancient Laws of the King—
dom faded, and werenet to be altereréhoi

.. . .. . x. ,. a e

 
 

O

Ch. 3. 010111311011 Elam Of England.

added unto, at the Pleafure of the Con“;
queror, without Confent in Parliament.

In the Seventeenth Year of his Reign;
(or as fome fay, the Fifteenth) he began
that great Survey, recorded in Two Books,
called, The Great Doomfola] Book, and Little
Doomfdo] Book, and ﬁnifhed it in the Twen-
tieth Year of his Reign, Anno Domini 1086.
as appears by the learned Preface of Mr. Se]:-
den to Eadmerm, and indeed by the Books
themfelves. The Original Record of which
is ﬁill exrant, remaining in the Cul’tody of
the Vice-Chamberlains of Her Majef’ties Ex—
c/Jequer. This Record contains a Survey of
all the ancient Demeafn Lands of the King-
dom, and contains in many Manors, n0t
only the Tenants Names, with the Quantity
of Lands and their Values, but likewife the
Number and Quality of the Reﬁents or
Inhabitants, with divers Rights, Privileges,
and Culloms claimed by them; and being
made and found by Verdict or Prefentmenc
of Juries in every Hundred or Diviﬁon upon
their Oaths, there was no Receeding from,
or Avoiding what was written in this Re.
cord '. And therefore as Gerald/im- ﬁlburienﬁ:
fays, Page 4.1. 0!: ho: no: eundem Libmm
JudiCiarium lVomimmm; Non quad in co dc
propoﬁtir alignibm dubiif femmr fententia, [Ed
gaod 4!; ea ﬂout ab ultimo Die :fudicii non licet
14/111 rarione diﬁ'eolere.

And thus much fhall fuﬂice touching the
Fifth General Head; namely, of the Pro-
grels made after the Coming in of King

”751154711,

:59

 
 

uh

I

@332 mm? at we Ch. 5*:
Willz‘am, relating to the Laws of England,
their Eﬂabliihmeht, Settlement, and Altera-
tion. Ifany one be minded {o fee what this
Prince did in reference to Eccleﬁaﬁieks, let
him confult Eadﬁzemr, and the Learned Notes
of Mr. Selden upon it, efp‘eciaily Page I67,
168', @‘c. where he {hall ﬁnd how this King‘
divided the Epifc0pal Conﬁﬁory from the
County Court, and how he reﬁ'ra'in‘d the
Clergy and their Courts from exerciﬁng
Eccleﬁaﬂical Jurifdié’cion upon Tenanesr‘m
(Sapite.

21."; H A R
Ch. 6. Qtammuu lain DfEn’g‘land. m

 

CHAP. V1.5

Concerning the Parity or Similitade of tbe
Law: of England and Normandy, and
the Reefom tbereoﬁ

THE great Similitude that in many OurLa’yvs
Things appears between the Laws of ms 21““
England, and thofe of Normandy, has given :1; Again
fome Occaﬁon to fuch as conﬁder not Well mm,
of Things, to fuppofe that this happened
by the Power of the Conqueror, in Con-
forming the Laws of this Kingdom to
thofe of Normandy 3 and therefore will needs
have it, that our Englzﬂ) Laws ﬁill retain
the Mark of that Conqueﬂ, and that We
received our Laws from him as from a
Conqueror; than which Affertion, (as it
appears even by what has before been faid)
nOthing can be more untrue. Beﬁdes, if
there were any Laws derived from the Nor-
mam to us, as perhaps there might be fame,
yea, poﬂibiy many,- yet it no more con—
cludes the Poﬁtion to be true, that we re
ceived fuch Laws for [Madam Conqueﬂm, than
if the Kingdom of England ihould at this
Day take fome of the Laws of Perﬂa, Spain,
Egypt, or Aﬂy’ria, and by Authority of Par-
liament fettle them here. Which tho’ they
were for their Matter Foreign, yet their
obligatory Power, and their formal Nature

'; or

 
 

 

it"!

(5’

EM): infinity of the Chas -
or Reafon of becoming Laws here, were
mm at all due to thofe Countries, whofe
Laws they were, but to the proper and
intrinﬁcal Authority of this .. Kingdom by -
which they were received as, or emitted
into, Laws: And therefore, as no Law that
isForeign binds here in England, till it be
feCeived and authoritatively engrafted into
the Law of England 5 fo there is no Reafon
in common Prudence and Underftanding
for any Man to conclude, that no Rule or
Method of Juﬂice is to be admitted in; 1
Kingdom tho’ never fo Ufeful or Beneﬁcial; ‘
barely upon this account, That another
People entertain’d it, and made it a Part of
their Laws before us. ‘

But as to the Matter it felf I {hall cont
ﬁder, and enquire of the following Pare
ticulars, 'viz.

 

1. How long the Kingdom of England
and Dutchy of Normand] ﬂood in Conjunv
étion under one Governor.

2. What Evidence we have touching the
Laws of Normandy, and of their Agreement
with ours.

3. Wherein conﬁﬁs that Parity or Dill
parity of the Engliﬂ: and Norman Laws.

4. What might be reafonably judged to
be the Reafon and Foundation of that
Likenels, which is to be found between the
Laws of both Countries. '

Erﬂ, Touching the Coniuné‘tion under
one Governor of England and Normandy, we
I are
(311.6. Qtammun iLatn of England. 1 13

are to know, That the Kingdom of England
and Dutchy of Normandy were de fnﬁo in
Conjunction under thefe Kings, ‘vii. Wil-
liam I. #51le II. Henry I. King Stepben,
Henry II. and Richard I. who, dying without
Iﬂ'ue, left behind him Arr/our Earl of Bri-
tain, his Nephew, only Son of Geoﬁry Earl
of Britain, fecond BrOther of Ric/yard I. and
john the youngeﬂ Brocher to Ric/mm! I.
who afterward became King of England by
ufurping the Crown from his Nephew Ar-
thur. But the Princes of Normandy ﬂill ad.-
hered to Arthur, ﬂout Domino Ligea fuo dicenter
yudicium 0' Conﬁzetndinem rﬂé illarum Regionmh”
ut Art/mm; Film: Frntrtk Senirozlr in Patrimonia
ﬁbi denim (9‘ lorererlitnre A'vunculo [no ﬁtccen’at
codem jure gnarl Gaulfridm Pater ejm q/ﬁt halvi—
turu: ﬂ Regi Ric/)nrdo defunﬂo fupervvnxiﬂet.

And therein they faid true, and the Laws Elder
of England were the fame, Witnefs the Suc- Bff’m‘?’
ceﬂion of Richard II. to Edward 111. alfo gill-2%?
the Laws of German], and the ancient Saxon: the Fa-
were accordant hereunto; and it was ac thcr, his
cordingly decided in a Trial by Battle, un- $0” {0
der Otloo the Emperor, as we are told by ““1““-
Radulp/Jm, Je Diceto [u]: Anna 943'. And ﬁle-h
are the Laws of mee to this Day, Ville
Cbopz'mur dc Domania Franci‘t, Lil). 2. Tu, r2.

And fuch were the ancient Cui’toms of the
Normans, as we are told by the Grand Con—
tnmier, cap. 99. And fu0h is the Law of
Normandy, and of the Iﬂes of flierfe] and
Guam/e] (which fome time were Parcel
thereof) at this Day, as is agreed by Terrier,
the boil Expotitor of tiieir Cuﬁoms, Lil). 2.

MP.

 

:7. .’- :. , ““ '

9‘9 J; gar-raga,“ ‘ 5.5»;
. .

oz:
,
I

 
  
   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
    

     

ﬁne hitter? of the , Ch. 6. '1

cap. 2. And {0 it was adiudg’d within my ‘
Remembrance in the Iﬂe of j‘erﬁey, in a ‘
Controverﬁe there, between john "I’ercbard '
and ﬁfe/m Rowland, for the Goods and Eﬂate
of Peter Percbard.

But neverthelefs, join: the Uncle of Ar;
tlmr came by Force and Power, Et Rotoma— l
gum Gladio Ducata‘u Normanniae accznam eﬂ l
per Miniﬂerium Roromagenﬁs Arabiepifcopi, as i
114m. Paris fays 5 and l’nortly after alfo ufur— ‘
ped the Crown of England, and imprifoned !
his Nephew Art/Bar, who died in the ‘
Year 1202. being as was fuppofed Murther—
ed by his faid Uncle, Vide Mat. Paris in
ﬁne Regm' Regz's Rici’ Primi, and Walﬂngbam in
his Tpozligma Neuﬂrire ﬁt]? (sealant/172720 1202.

And to countenance his Ufurpation in
Normaml], and to give himfelf the better
Pretence of Title, he by his Power To far
prevailed there, that he obtained a change
of the Law there, purely to ferve his Turn,
by transferring the Right of Inheritance from
the Son of the elder Brorher to the younger
Brother, as appears by the Gram! Contamier,
cap. 99. But withal, the Glof: takes notice of
it as an Innovation, and brought in by Men
of Power, tho’ it mentions nor the particular
Reafon, which was as aforefaid.

The King of Frame (of whom the Dutchy
of Normandy was holden) highly refented
the [Injury done by King ﬁlm to his Nephew
ﬁrs/5m, who as was {irongly fufpected came
not fairly to his End. He fummoned King
310/372 as Duke Of Nammmly into France, to
give an Account of his ,t‘irﬁ'ions, and upon
his

 
Ch. 6- Qliﬂmmun 1mm of England.

his Default of appearing, he was by King
Pbilip omence foreiudged of the {aid Duchy,
Ville Mat. Paris, in initio chni 70611711223; and
this Sentence was lb efeétually put in Exe—
cution, that in the Year 1204.. Mat. Paris
tells us, You Normannizz, Yimmz'a Anzlegcmm,
é‘ Piﬂmﬁ'a cum Ci'w'tatibm C3“ Caﬂe/lzk CV
Reba: aliis prmer Rape/lam, Tom‘, (3“ [Mar
Ca/lellam ﬁmt in Regir Ewncomm Dominium
time/um.

But yet he retained, tho’ with much Dill
ﬁculty, the Illands of yer/q and szquy,
and the uninterrupted Poﬂbﬂion of fome
Parts of Normandy for forne time after, antil
borh he and his Son King Hm. III. kept

the Stile and Title of Dukes of Alarm/577.. ‘

(3], Sec. till the ngearof Ring Hm. III.
at which time for 3000 Lit/res Tax/mm, and
upon fome other Agreements, he reﬁgned
Normand} and 1411701»: to the King Of Iii-anteJ
and never afterwards ufetl that Title, as
appears by the Continuation of Mir. Park,
[at Am 1260. only the four Iﬂands, {ome
time Parcel of Norman/(y, were ﬁill, and to
this Day, are enjoyed by the Crown of
England, Viz. jctfty, Guava/E33 Sdrké’, and
Aidan/{7, tho’ they are ﬁill governed under
their ancient Norman Laws.

Secondly, As to the Second inquiry, What
EVidence we have touching the Laws of
Norman] : The belt, and indeed only com
mon Evidence of the ancient Cul‘toms and
Laws; of Narmmzdy, is, that Book which is
Called, Tire Grand Coirikéﬁic‘r of Normandy,
Which in inter Years his 2* illnitrated,

.7, 1", {3'3th

11;

Nurmara';
reﬁgned
l) y K i n g

(1 7
arm,

:12, my 2’ y

ﬁ~

I ,
. . X: 9 yr- ”! 7; f};
.

 
.mrwyvrnv~<- A t g

116

etc may at the" cm. ;

not only With a Latin and Frencb Glofs, but

alfo with the Commentaries of Terrier, a 1

French Author.

This Book does not only contain many ‘

of the ancienter Laws of Normandy, but

mol’t plainly it contains thofe Laws and Cu- ‘

Roms which were in Ufe here in the Time
of King Hemll. King Rich. 1. and King 706»,
yea, and fuch alfo as were in Ufe and Pra-
&ice in that Country after the Separation
of Normandy from the Crown of England 5
for we {hall ﬁnd therein, in their Writs and
Proceifes, frequent Mention of King Rick. I.
and the entire Ten of the 110th Chapter
thereof is an Ediét of Pbilz' King 'of France,
after the Severance of Ngrmmdy from the
Crown of England. (1 ("peak not of thofe
additional Edié’ts which are annex’d to that
Book of a far later Date.) 80 that we are
wt to take that Book as a ColleaiOn of the
Laws of Normandy, as they ﬂood before the
Acceliion or Union thereof to the Crown

"of England; but as they ﬂood long after,
" under the Time of thofe Dukes of Normandy

that fucceeded Wzlliam I. and it feems to
be a Colle€tion made after the Time of
K. Hen. III. or at leaﬁ after the Time ‘of
Kjolm, and confequently it ﬁates their Laws
and Cuﬁoms as they ﬂood in Ul‘e and Pra—
é’tice about the Time of that Colleékion
made, which Obfervation will be of Ufe
in the enfuing Difcourfe.

Tbirdly, Touching the Third Particular,
rviz. The Agreement and Difparity of the
Laws of England and Normand]. It is very

true‘%

 

 

 

 

,
l
l
l
l
 

Ch. 6. cinnamon tam of England. 117

true, we {hall ﬁnd a great Suitablenefs in
their Laws, in many Things agreeing with
the Laws of England, efpecially as they ﬂood
in the Time of King Hen. II. the bei’t Indi-
cation whereof we have in the Colleé’cion
of Glanrville', the Rules of Defcents, of
Writs, of Proceﬁ, of Trials, and fome other
Particulars, holding a great Analogy in both
Dominions, yet not without their Diffe-
rences and Difparities in many Particu-
lars, 'viz.

Fir/1‘, Some of thofe Laws are fuch as were
never ufed in England, for Inﬁance, There Diﬁ‘c.
was in Norwand} a certain Tribute paid to rcncc be-
the Duke, called Monja, id e/i', a certain twcenfhc'
Sum yielded to him (in Conﬁderation that 533,311”
he {hould nor alter their Coin ) payable eve— Law, of
ry three Years, Vule Contumz'er, cap. 1;. But England.
this Payment was never admitted in England 5
indeed it was taken for a Time, but was
ouf’ted by the ﬁri‘t Law of King Hen. I. as
an Uliirpation. Again, by the Cuﬁom of
sz-man:{y, the Lands defcended to the Ba‘
{lard Eigne, born before Marriage of tho
fame Woman, by whom the fame Man had
Other Children after Marriage, Contamier,
cap. 27. But the Laws of England were al-
ways contrary, as appears by Gldn‘ville,
Lib. 7°. cap. 11. And the Statute of Alerton,
which fays, Nolumm Lege: Anglicanar Mu-
tare, (9'0. Again, by the, Laws of Normand],
if a Man died without Iﬂhe, or Brether, or
Sifter, the Lands did defcend to the Father,
Comumier, cap. 15'.- Tcm‘er, cap. 2. But in

I 3 Eng:

)‘

 

   
 

1.18

can inning? nftbe Ch. 6.

Englnnal, this Law feerns never to have been

ufed, Std dere, Glen‘ville, Lib. 7. cap. I,
2429, Again, Some Laws were ufed in
Narmnnn’], which were in Ufe in England
long before the fuppofed lVormzm Conqueﬁ,
and therefore could in no Pollibility have
their original Force, or any binding Power
here upon that Pretence : For Inﬁance, it
appears by the nglezzmier of Normandy, that
the Sheriff of the County was an Annual
Ofﬁcer, and fo ’tis evident he was likewife
in England before the Conqueﬁ: And among
theLaws Of Edward the Confeﬂnr, it is pro-
Vided, Quad Aldermanni in Civitatibm eandem
bnéennt Dignitatem qualem babent Ballirvi bun-
a’rezlornm in Ballirw': ﬁnk fnb Vicecomitem :
Again, Wreck of the Sea, and Treafurc
Tram was a Prerogative belonging to the
Dukes of Normnml' , as appears by the Con—
tnmicr, Cap. 17, (5* 18. and fo it was belong-
ing to the Crown of England before the
Conqueﬂ, as appears by the Charter of
Edward the Conﬂﬂér t0 the Abby Of Ramféy
of the Manor of Ringﬂezle, cnm toto ejec'fu
M’nris 5mm! Wreccum {lit-inn, and the like. With
£17.11, of Tl'eafnre YE-rrue, 6/)" wide the Laws
of Erhmzrd the Cniﬁlﬂér,‘ mp. I4. SO Fealty,
Homage, and Relief, were incident to Te»
nures by the Laws of Nn'nmnn’y, Vials Con-
mmier, mp. 29. Anal f0 they were in England
wefore the Conquei‘t, as appears by the Laws
of Edward the Cmfijﬂér, an: 3;. and the
Laws of Cﬂmtl‘m, mentioned by Brampton,
cap 8. So the Trial by ,lnry of. Twelve Men
was the ultra"! Trial ameng the F—Zcrmam in
molt

 
Ch. 6- «Emma 1am of England.

moﬁ Suits, efpecially in AHizes, & yum
Utrmm, as appears by the Contnmz‘er, cap. 923
9;, é‘ 94. and that Trial was in Ufe here in
England before the Conqueﬁ, as appears in
Brampton among the Laws of King Et/Jelrlred,
cap. 3. which gives fome Specimen of it,
viz. Habeant placita in ﬁngnli: Wapentachiis
(6' mean! Senior-es duodecim Thani ruel Pm—
poﬁru: cum ii: (9' {went gnarl neminem innocen-
rem accnfare nec Noxium concelare.

3(1ly, Again, In fome Things, tho’ borh
the Law of Normandy and the Law of
England agreed in the Faé’c, and in the
manner of Proceeding; yet there was an
‘ apparent Difcrimination in their Law from
ours: As for lnftance, The Husband feized
in Right of the Wife, having 1fo6 by her,
and {he dying, by the Cui’tom of Normamly
he held but only during his Widowhood,
Contamier, cap. 119. But in England, he
held during his Life by the Curtefy of
England.

4W]. But'in fome Things, the Laws of
Normandy agreed with the Laws of England,
eﬁecially as they ﬂood in the Times of
Hen. II. and Riclynnl I. {'0 that they feem
to be as it were Copies or Counterparts
one of anorher; tho’ in many Things, the
laws of England are ﬁnce changed in a great
hisalhre from what they then were: “or
Enhance, at this Day in Englrna', and for
very many Ages pail, all Lands of Inheri-
tance, as well Scrage 72mm“, as 0%" Knights

Service, del‘cend to the eldei’c Son, unlels

a '1’ \n ‘ Ln< ' ,~- -3.~. l»,
:n th‘m' andlonte other Places, where the

. n r1 r
i, .1, bunch}

119

 
 

 
 
 

 
  

Old Law
of Trials

by J my-

 
  

Qth mitten of the Ch. 6...,

Cuﬁoni direéts the Delhent to all the Males,
and in fome Places to the youngef’t; but
the ancient Law ufed in England, thoughit
direéted Knights Services and Serieanties to '
defeend to the eldel‘t Son, yet it direéted Vaf- _
falagies and Socage Lands to defcend to all
the 50115, Glanvz'l’, Lila. 7. cap. 1. and 1b does
the Laws of Norman/1] to ‘this Day. Vida
*Contumz'er, cap 26. é‘ 170/} bit, cap. 1 I.

Again, Lefgrofy at this Day does not in)-

ede the De cent; but by the Laws in Ufe
in Englnnd, in the elder Times, unto the
Time of King 7%», and for Tome Time
afterwards, Leprof} did impede the Defcent,
as Placita. qﬂarta yobannﬁ, in the Cafe of
W. Fulcb, a Judge of that Time; and ac—
cordingly were the Laws of Normandy,
Via’e Le Contamier, cap. 27.-

A ain, At this Day, by the Law of Eng-
lamﬂg in Cafes of Trials by Twelve Men,
all ought to agree, and any one diffenting,
no Verdiéi: can be given ; but by the Laws
of Normanay, though a Verdiét ought to be
by the concurringConfent of Twelve Men,
yet in cafe of Diﬂ’ent or Difagreement of
the Jury, they ufed to put off the leﬂ'er- ‘
Number that were DiiTenters, and added a
kind of Tale: equal to the greater Number
f0 agreeing, until they had gOt a Verdiét of

« Twelve Men that concurred, Contamier, 0.951

 

And we may ﬁnd lbme ancient Fo‘otﬁeps of
the like Ufe here in England, though long
ﬁnce antiquated, Vida BTﬂﬁO”, Lib. 4. cap. 19.
where he fpeaks thus, Contingit etiam mul-
totiem quad juratorerjn taeritate dicmda ﬂirt:

[é

  

 
Ch. 6. (5011133101! 1am (If England.

ﬁbi cantmrii ira quad in mum comanlare 72071
P” {471: ﬁmentiam, £930 caﬁ! cle szﬁ/io Curiae
a "brtigmr A/jz‘fa, ita quad appommtur a/ii juxm
71mm; um majorzk part/5 6pm zliﬂenferit, vclﬁzltem
qzwtuor We! fax (5" adjungzmtur all?!) rm! etiam
per ﬁipﬁu fine (3523', de 'verz'mre Jifcuriant (29‘ ju.
(licent, 0‘ per/2' re/Pondcsmt (J) eomm ‘vercdifz'um
allowbimr (9’ teneéimr mm quilt”: ip/z' conve-
m'rmt.

Again, at this Day, by the Laws of Eng.
land, a Man may give his Lands in Fee-
limple, which he has by Defcent, to any
one of his Children, and dilinherit the reﬂ:
But by the ancient Laws ufed here, it feems
to be OtllCt‘Wilé; as Mich. IO 70547271th Glam).
Lily. 7. mp. 2. the Cafe of William ale Caufeia.
And a‘eordihgly were the Laws of Nor-
mandy, as we ﬁnd in the Grand Contamier,
cap, 36. flat/ma! [e Pare a'voit flu/fear: ﬁlls, i1:
ne pent ﬁzire zle ﬂm Heritage 1e 1m Meil/eur que
le zmter; and yet it feems to this Day, in
England, it holds fome Refemblance in
Cafes of Frank-Marriage, viz“ That the
Doneﬁ, in cafe {he will have any Part of
her Father’s Other Lands, ought to put her
Lands in Hocbpot.

Again, By the Law of England, the
younger Brother {hall nor exclude the Son of
the elder, who died in the Lifetime of the
Father: And this was the ancient Law of
Normanl], but received fome Interruption
in Favour of King ffobn’s Claim, Vitld Con-
tamier, cap. 25. é“ bio ante; and indeed, ge-
nerally the Rule of Defcents in‘Normandy
was the fame in molt Cafes with that of

Dil‘ccntg

12.!

And of
Defcents.

 
 

122

Their
Writs.

we mamas the Ch. 6.

Difcents with us at this Day; as for In—
ﬁance, That the Defcent of the Line of
the Father {hall not refort to that of the
Mother, Et e converfb; and that the Courfe '
Was Otherwife in Cafes of Purchafes. But
in 1110?: Things the Law of Normandy was.
Confonant to the Law with us, as it was in.
the Time of King Richard I. and King
7m 5 except in Cafes of Defcents to Ba-
fhml eigne, excluding Mulier Puiﬁﬂe, as afore-
faid.
Again, at this Day there are many Writs
now'in Ufe which were ancientiy alfo in
Ufa hereJ as well as in Normandy: ‘As Writs
of Ri ht, \Vrits of Dower, Writs De novel
Diﬂéijg; dc Mortrlanceﬁor, 71m?! utrum, Dar—
rein preﬁ‘ntment, é'c. And fome that are now
out of Ufe, though anciently in Ufe here
in England; as Writs De Eeodo fuel rzmoz’o, De
Feodo ‘Uel W'Mda, é’c. All‘which are taken
Notice of by Glanruil, Lib. 1;. cap. 28, 29.
And‘the 'very fame Forms of Writs'in Effect
Were in Ufe in Normandy, as a pears by the
Contamier per mm; and the fit De Ezodoj
TUE! V4610, (ibia’. cap. I I.) accbfdiﬂg to Giana,
(ville, Lib. 1;. cap. 27. runs "thus,”i‘uiée.‘ Rm:
Kicaeomiti ﬁzlutem: Summone pyré'bm: ﬂimmoni«
fire: Juodecim libero; (9“ [cg/Me: bérﬁzims de ﬂail
cineto quad/int comm ma we! yuﬂiciz‘k mrir co die,
pamti Sacrameﬁto Recognofcere utrum N. tmeatr
#5414772 Carucatam Term: in i114 villa qme R. 6111’
imzt (yer 5:5 mm per Brew meum in Fearz'o (272 £12
ﬁnding inmzrlirzmm 62 ab ipfo R. 7261515 H. ﬂﬁtC‘f
ﬁ/Ybre cfjm, (r061. zzliter) ﬂ ﬁt Feodnm rue! hatre-
dirnfr Egg-324;: N, at; 5;: tit-2:150 irz'tuzdiard {’1' m5 ipfé
’ R. 1r!

 
Ch. 6. Grumman 1am of England. 123

R. vel ab H. 6%. Et interim Termm illnm “vi—
deam, (/y‘c. Vide Mir].

And according to the Gram] Contamier,
that Writ runs thus, viz. Si Rex fecerit te
fecnmm (1e clnmare [no proﬁguend’ﬂzmmonem Re-
cognitores (1e Vicem’to quad fz‘nt ad primer Aﬂifa
Ballitva’, all cogancemlnm utrum Carmam Term:
in B. quad G. deﬁwcmt R. fit Feozlnm tenem‘zk
Fuel rvndium navum diﬁnm per Mama G. poﬂ
Coronationem Regz’: Richardi é‘ pro quanta, é‘
urrmn ﬁt propinqnior Here: ml redimendnm 7m—
diam, (5' wide/liar interim Terra, 0’0. 30 that
there feems little Variance, either in the
Nature or in the Form of thofe Writs ufed
here, in the Time of Henry 11. And thofe
ufed in Normandy when the Contumier was
made.

Again, The Ufe was in England to limit Times of
certain notable Times, within the Compafs I1"“1““'
of which tllofe Titles which Men deﬁgn’d no“
to be relieved upon, muf‘t accrue : Thus it
was dune in the Time of Henry III. by the
Statute of Merton, cap. 8. at which Time
the Limitation in a Writ of Right was from
the Time of King Henry I. and by that Sta—
tute it is reduced to the Time of King Hen-4
73/ H. and for Aﬁizes of Mortdmzceﬂfar they
were therchy reduced from the lal’t Return“
of King 350/272 out of Ireland, which was
12 I‘Etcbgzrznir, and for Alﬁzes 0f No’é’el Dz];
ﬁzfm, a prime Trumﬁetatione Reg]: in Brarman-
nine, which was 5‘ Hen. ;. and which be-
fore that had been puff zzlrimzzm Tedd/'MW
Haitians III. at Britarmia, as appears by
B.~::;‘-z":e:.. f‘mtl this Time of Limitation was

' allbs

 
 

114

me {stamp of the 011.6.

alfo afterwards, by the Statute of Wcﬁ. I-l
cap. 39. and We . 2. cap. 2. 46. reduced
unto a narrower Scantlet, the Writ of Right
being limitted to the Firf’t Coronation of
King Richard I.

But before the Limitation fet by that
Statute of Merton, there were feveral Limi-
tations fet for feveral Writs; for we ﬁnd
among the Pleas of King jqbn’s Time, the
Limitation of Writs, De Tempore qua Rex
Henricus atom no/hr fuit ‘virvm (9' Mortum;
and in a Writ Of Aile, Die qua Rex chv
ricus obiz’t in the Time of Henry II. as ap’
pears by Glanrw‘lle, Lily. 1;. cap. 3. there
were then divers Limitations in Ufe, as in
Mortdanceﬂorr, Po]! prima Coronationem no-
jfram, *w'z. Henrici ﬁcuncli, Glan'uil. Lib. I. -
cap. I. and touching Aﬂizes of Novel Difl
feiﬁn, Viale ibid. cap. 32. where he tells us,
Cum qua imm A/ﬁfam, é‘c. And the Time of
Limitation in an Aﬂize, was then po/zz ultimam
meam Tmmﬁetationem, (viz. Henrici primi) in
Normanniam, Lib. :3. cap. 33. But in a Writ:
of Right, as alfo in a Writ of Cuf’toms and
Services, it was de tempore Regi: Henrici d’Ui
mei, viz. Hm. I. said. ib. Lib. 12. cap. 10, 16'.
And it feems very apparent, that the Limi~
tations anciently in Normandy, for all Actions
Anceﬂrel Was poﬂ primam Coronationem Reggie
Henrici fecundi, as appears expreﬂy in the
Contamier, cap. III. De Feoﬁ? (’9‘ Gage.

So that aneicntly the Time of Limita-
tion in Normandy was the fame as in England,
and indeed borrowed from England, viz. In
all Aétions Anceﬂrel from the Coronatiqnf

o
 

Ch. 6. Grumman ILaiii Of England.

of Henry II. And thus in thofe Aétions
wherein the Limitation was anciently from
the Coronation of King Ric/94rd I. was fab-
i’tituted as in the Writ Dc Feofe é“ Gage, in
the Contamier, cap. III. De Feofe (f Forme,
cap. I12. In the Writ De Le] Appariﬂm, 1'17.
cap. 24. é“ cap. 22. Aﬁun Gage 'ne peut eﬂre
requifé en Normandy, [1’ il ne fuit engage pa]! [6
Coronemmt dc Roy Richard on deim guarantee
amzm: So that the old Limitation, as well
for the Redemption of Mortgages, as for
bringing thofe Writs above—mentioned, was
1:0]? Coronationem Regir Henrici Secumﬁ; but
altered, as it feems, by King Philip, the
Son of Lewis King of France, after King
701mb Ejeétment out of Normandy, and
iinee the Time from the Coronation of King
Richard I. is eﬁimated to bear Proportion
to 40 Years. It is probable this Change of
the Limitation by King Pbilip of France,
was about the beginning of the Reign of
King Henry III. or about 30 or 40 Years
after the Coronation of Richard I. from
whofe Coronation about 30 Years were
elapfed, 5' am 6 Henrici ;. For anciently

the Limitation in this Cafe was 30 Years.
Fourtbl], I now come to the Fourth In-
quiry, rw‘z. How this great Parity between
the Laws of England and Normandy came to
be effeeted; and before I come to it, I
fhali premile Two Obfervables, which I
would have the Reader to carry along with
him through the whole Difsourfe, "dire.
Fir/Z, That this Parity of Laws does nor at
all infer a Ncceiiity, that they Ihould be
impoled

115'

 
 

126 @be imam of the Ch. 3.

impofed by the Conqueror, which is fulﬁ-
ciently {hewn in the foregoing Chapters;
and in this it will appear, that there were
divers other Means that caufed a Similitude -
of bOth Laws, without any Suppoﬁtion of '
impoﬁng them by the Conqaeror. Second—
ly, That the Laws of Normandy were in the
greater Part thereof borrowed from ours,
rather than ours from them, and the Simi-
litude of the Laws of both Countries did
in greater Meafure arif‘e from their Imita-
tion of our Laws, rather than from our Imi—
tation of theirs, though there can’t be de-
nied a Reciprocal Imitation of eachorhers
Laws was, in fome Mealhre at leaf’t, had a
in boch Dominions: And thefe Two Things
being premifed, I defcend to the Meam
whereby this Parity or Similitude of the
Laws of bOth Countries did atife, as fol—
low, viz. '

Caufes of Firﬁ‘, Mr. Camden and fome Others have
“mgr”? thought, there was ever fome Congruity be:
as: tween the ancient Cul’toms of this Iﬂand
‘ ' and thole of the Country of France, bath
in Matters Religious and Civil; and tells
us of the ancient Druids, who were the
common Inﬁruétors of bOth Countries.
Gallic; Cauﬁdicos docuir facunda Britannos:
And fome have thought, that anciently
horh Countries were conjoined by a {mall

Te it of Land, which might make an eaﬁer
Tranlition of the Cuf’toms of either Coun-
try to the Other; but thoﬁe Things are too"

remote Conjeétures, and we need them not
4 to?

4»,
.
Ch. 6. Qtummun 1am of England. I 27

to folve the Congruity of Laws between
England and Normandy. Therefore,

Secondly, It feems plain, that before the COm' .
Norman; coming in Way of Hoﬁility, there $32263"
was a great Intercourfe of Commerce and the rugby];
Trade, and a mutual Communication, be- and NW.
tween thofe Two Countries,- and the Con— mm.
fanguinty between the Two Princes gave
Opportunities of feveral Interviews between
them and their Courts in each others
Countries: And it is evident by Hiﬂory,
that the Confeﬂo'r, before his Accefiion to
the Crown, made a long Stay in Normandy,
and was there often, which of Confequence
mult draw many of the Engliﬂ: thither, and
of the Norman: hither; all which might be
a Means of their mutual Underﬂanding of
the Cuﬁoms and Laws of each Others Coun-
try, and gave Opportunities of incorpora-
ting and engrafting divers of them into
each Other, as they were found ufeful or
convenient; and therefore the Author of
the Prologue to the Grand Cuﬂumier thinks
it more probable, That the Laws of Nor—-
wand] were derived from England, than that
ours were derived from thence.

Tamil], ’Tisevident, that when the Duke
of Normandy came in, he brought over a
great Multitude, nor only of ordinary Sol"
diers, but of the belt of the Nobility and
Gentry of Normandy 5 hither they brought
their Families, Language and Cuﬁoms, and
the Victor ufed all Art and lnduftry to in-
corporate them into this Kingdom: And
the more effetﬁually tn maize both PeOple

become

 
 

:28

’the Infant? at" the (211.6;
become one Nation, he made Marriages

between the Engliﬁi and Norman:, tranfplant'.
maingny Norman Families hither, and many

Englifh Families thither; he kept his Court '

fometimes here, and fometimes there ; and
by thofe Means infenﬁbly derived many
Norman Cuﬂoms hither, and Englz‘ﬂ; Cui’toms
thither, without any fevere Impoﬁtion of
Laws on the Engliﬂ: as Conqueror : And by
this Method he might ealily prevail to bring
in, even without the People’s Confent, fome
Cui’toms and Laws that perhaps were of
Foreign Growrh; which might the more
eaﬁly be done, conﬁdering how in a fhort
Time the People of borh Nations were in-
termingled; they were mingled in Mar-
riages, in Families, in the Church, in the
State, in the Court, and in Councils 3 yea,
and in Parliaments in both Dominions,
though Norman/l] became, as it were, an
Appendix to England, which was the nobler
Dominion, an received a greater Con-
formity of their Laws to the Engliﬂa, than
they gave to it. ,

~Fourtbly, But the greatef’r Means of the All
ﬁmilation of the Laws of horh Kingdoms was
this: The Kings of England continued Dukes
of Normandy till King jobn’s Time, and he
kept fome Fooﬁng there notwithﬁanding
the Conﬁfcation thereof by the King of
France, as aforefaid; and during all this
Time, England, which was an abfolute
Monarchy, had the Prelation or Preference
before Normandy, which was but a Feudal
Dutchy, and a fmall Thing in refpeét of

3 12713337711 3
Ch. 6. QEumman ﬂaw of England.

England; and by this Means Normand] be-
came, as it were, an Appendant to England,
end Iitccellively received its Laws and G0-
vernment from England 5 which had a greater
Inﬂuence on Normandy than that could
have on England,- infomuch, that oftentimes
there iifued Precepts into Normand) to ﬁll11-.
mon Perfons there to anfwer in Civil Caufes
here 5 yea, even for Lands and PoITeHions
in Normandy; as Placito I fobaznmk, a Pre~
cept iffued to the Senefchal of Normandy,
to fummon Robertﬁronymm, to anfwer to
jobn Mnrﬂml, in a Plea of Land, giving
him 40 Days Warning ,- to which the Te,-
nant appeared, and pleaded a Recovery in
Normandy : And the like Precept ilTued for
{Vi/lid”; d6 Bofco, againﬁ yeoﬂiy Rut/32.4777, fer
Lands in Corbcfpine in Normandy.

And on the other Side, Trin. r4 fobannzir,
in a Suit between Franczk Borne and Thoma:
Adorne, for certain Lands in Hm’. The De-
fendant pleaded a Concord made in Now
mnmly in the Time of King Ricnm-J‘ I. upon
a Suit there before the King, for the He-
nour of Bonn in Normandy, and for certain
Lands in England; whereof the Lands in
Quef’tion were Parcel before the Senelchal
OfNormamzy, Anna 5099. Buc it was excepted
againf’t, as an infufﬁcient Fine, and varying
in Form from other Fines; and therefore
the Defendant relied upon it as a Releafe.

By thefe, and many the like Inflances, it
appears as follows, 'vtz.

K F Iii/g“;

129

 
  

m): mitten of the crust
Fir/f, That thereywast a great Intercourfe
betWeen En lam! and Nbrmand] before and
‘after the 4 queror, Which niiirght give
a great Opportunity of an A unilation
and conformity ,of the Laws in both
Countries?” Secondly, That a much greater
Conformation of Laws arofe after the Con-
queror, during the Time that Normand] was
enjoyed by the; Crown of England,i,,than
before. And Thin”), Thatthis Similitude
Of the Laws of England and Normandy was
net by Conformation of the Laws of Eng-
land to thofe of Normandy, ,but by Conforp
mation of the Laws. of .Normaml} to thofe
of England, which now grew to a great,
Height, Perfeétion and Glory; fo that
Normand] bacame but a Perquiﬁte or Ape
ﬁenda‘nt'of it. . , . y, ,
And as the Reafon Of the fixing fpeaks
it, fo the virery Fact it felf atteﬁs it. For,

Fir/f, It is apparent, That in Point of
LimitatiOn in Aétions Ancef’trel, from the
Time of the Coronation of King Henrytlli
it was anciently fo here in England in Gian”—
t‘vil’s Time, and was tra‘nfmitted from hence
into Normandy; for it is no Way reafonable td
fupp‘ofe the Contraryﬁnce Glanm'lle mention;
it to He enae’ced here, Cami/£0 15mm»; 5 and
though this“ be b'ut'a'" ﬁngle Point, .or In!
ﬁance, yet“ the Efri’dence thereof makes’“
out a? Criterion; 0r p‘rObable Indication,‘
that many ocher Laws were in like Manner
f0 {Grit hence into Normanéy.

Setondly,

    
 

~ 3' a”. ~ 1m”? €221
611.6. @ummun mm of England. . :35;
. Secondl],_lt appearg, That in the Succeﬂ
lion of ,the Kings of‘EégZhﬁd,'ftom ,Kin
Mlliam I. to King “Henry II. the Lay‘s/s 0%
England received a great‘lmptoﬁtemeht and
Perfeétion, at will plainly appcatjrom
Glam/£135 Book,.written iii the Time of ,
King Henry II. ef'pecially if compared with
‘ thofe Sums or Colleé’tions of _ Laws, either
(if Edward the Confei’for, [Vii/3477.31; bf Hem
r} I. whereof hereafter. § . g 3:.
_F_' So that itfeems, ‘by Ufe, Praétice, Coma
merce, Study and. Improvement of the:
Engliﬂ: People, they arrivedin Hang 11’;
Time to a greater Improvement goﬁ the
Laws; and‘that.iin the. Time 01? KingRi—
964er I. and King john, they ,Wereg more;
perfeéted, as may. be feenin’ the Pleadings;
efpecially of King j’o/g'n’s ’-Tim?e_3 and tho’)
far inferior to thofe of,.th,‘e Times QfSuce
eeeding King’s; yet they are fat morej‘rEgu—
lat and perfeﬂ; than, thofe that went before
them. And now if any do but compare the;
Qoummier of Normandy, with .tiliehTtaéf OE
Glanville,h6 will plainly ﬁnd that the Name».
Traé’t of‘Laws followed the Pattern‘of'. Glam
(fail, and ”was Wtithng after it, (When ppm;
lgly ‘the .Engliﬂ: Laws wereyet moire teﬁnecf
and more perfect; for it! is plain beyonc‘l
Contradic’tion, that: the ‘Colleé’cion .01: the
Cuﬁonjs axid Laws ofi‘Normandy was made.
after the Time .of King Henry 1113‘; for; it.
mentions ‘his (Detonation; an ,apgointswit
for thelimitatioh of Aétions‘ Aheeﬂrel;
whidht‘muﬁat .Ieaf’t'be ,30 Years lafter ;;
nay, the Couttmiier. appears to have beeri;
‘ K. a“ made

‘2zsr’ﬁtff‘hm ~ ~ 3' ‘-

iii; ..:2.;.; ”a .0.» 24.2: Jase?

;.

.;.s w.

ll ‘3; '
ll
33

ll}; L
”It“. ‘
l '
;

 
 

:32

arm: Initial? or the Ch. 6.

made after the Aé’t of Settlement of Nor-
mand] in the‘Crown of France ; for therein
is fpeciﬁed the Inﬁitution of Pln'lz'p King
of France, for appointing the Coronation
of King Richard I. for the Limitation of
Actions; which was after the {aid Philip’s

ifull Poffeﬂion of Normand]. .

Indeed, if thofe Laws and Cuﬁoms of
Normandy had been a Collection of the

‘ Laws they had had there before the coming

in of King William I. it might have been a
Probability that their Laws, being fo near
like ours,‘ might have been tranfplanted
from thence hither 5 but the Cafe is viﬁbly
orherwife, for the Contamier is a Colleé’tion
after the Time of King Richard I. yea, after
the Time of King 301272, and poliibly after
Henry III.’s Time, when it had received fe—
veral Repairings, Amendments and Polifh-
ings, under the feveral Kings of England,
W'illz'am I. Il/illiam H. Henry 1. King 5160671,.
Henry 11. Richard I. and King 3‘06»; who

. were either knowing themfelves in the

Laws of England, or were afﬁﬁed with a
Council that were knowing therein.

And as in this Trac‘t of Time the Laws
of England received a great Advance and
Perfection, as appears by that excellent
Colleé’cion of Glannille, written even in
Henry II.’s Time, when yet there were
near it) Years to acquire unto a further.
Improvement before Normandy was left;
{0 from the Laws of England thus model-
led, polifhed ‘and' perfeéted, the .fame
Draughts were drawn upon the Laws of

a , , . NW
/
‘Ch. 6. Quantum lain ﬂfiEngland. '13";

Normand], which received the fairef’t Lines
, from the Laws of England, as they ﬂood

at leaft in the beginning of King 70%
Time, and were in Eﬂ'eét in a great Mea-
fure the Deﬂoration of the Englijh Laws,
and a Tranfcript of them, though mingled
and interlarded with many particular Laws
and Cuﬁoms of’ their own, Which al—
tered the Features of the Original in many

Points.

 

Ii; CHAR

 
 

 

“33‘? {91%.2? 05; the; 911.7

 

1' Wk

o H A 13,. V11.

Concerning _t/ae_ Progreﬁ of the Law: of
i Em.gland afteiﬁ the Timefof King. _Wih,-'
liam 1. mail{ ibe. Tiagze of King Ed;-
WangI; ‘“ ; . . , .
TH A T which precedes in. the Two fore-7
L ' ‘ going "Chapters, givess us" fome “Ac:-
oount of‘the LaWs of England, _as they floor}

_ in and after. the great‘Chaxﬁa‘ge which hap.‘

pened tinder King William ’I. commonly
called‘J Tbeiconquero‘r. I ﬁt_‘1a.ll'n,owproceedi-~
to the'Hiﬁor thereofin the enfuihg Times;
until the Reign of King Edward Hi

William I. having Three sen; 5 Roller; the
elde‘ﬁ; Mllz'méi' the next, and Him] the";
youngei’t, difpofecl of the: Crewn of‘ England“
to William his feoond—I Son, and the Dutchy"
of Mrmaml] to Rolm his eldei’; Son; and:
accordingly William H. ‘ commonly called,E
William Rufus, fucceeded, his Father in this’
Kingdom. We have ‘little memorable of
him .in% ‘relation to the Laws, only that he:
feverei'ly prefs’d; and exrencled‘: the 3Foreﬁ;
Emma} ": "I ‘ ”I H 3 ' “'4'“ I'
9" Henry 1. Son of William I, am} Brother of; 2
William'II. fucceede‘d'his faid Brother in

r - the, Kingdom. of England, and afterwards;

expelled his eldeﬁ Brother Robert out of:
the Ducchy of Normmgafy alfdfv He pro;
, . :oeededg'

4.3L". a; ._ ,x‘ '
Chi. Qtutnman lain Of England.

ceeded much in the Benefit of the Laws,
we.

Fir/5,- He reﬁored the FreeEleétion of
Bithps and Abbors, whiCh before that Time
he and his PredeceiTors invel’ted, per Annulum
é’ Ba'cculum; yet referving th‘Ofe Three
Enﬁgns 05 the Patronage thereof, «viz. Conge
(IE/lire, Cuﬂody of the Temporalties, and
Homage upon their Rel’titution ﬁdeHoveg
Jen, ‘in’Vimﬁm. ’ x ' ‘

But Secondly, The great EiTay he made;

was the compoﬁng an Abﬂraét or Manual
of Laws, wherein he conﬁrm’d the Laws, of
Edward the Confelfor, Cum illi: Emendationi-
12m quilm: eam Pater‘ mew emenda'vit Baronum
fuorum Concilio; andthen adds his own Laws,
fome whereof ‘feem to 'tal’te of the Canon
Law. The whole Collection is tranfcribed
in the Red Book Of the Exchequer; from
whence it is now printed in the End of
Lambard’s Saxon Laws, and therefore not
needful to be here repeated. ' ”

They, for the moﬁ Part, contain a Mo;
del of Proceedings in the County Courts,
the Hundred Courts, and the Courts Leet;
the former to be held Twelve Times in the
Year, the latter twice 5 and alfo of the
Court‘s Baron. Theft: were the ordinary
ufual Courts, wherein juﬁ’ice was then,
and: for a long Time after, 1110?: commonly
a‘dminif’tred; “alfo they concern ‘Criminal‘;
Proceedings, and the Punifh-ment of Crimes,
and lime few Things touching Civil Actions
and Interef’ts, as in Chapter 70, directing
Defcents, viz. ' '

K 4 Si:

3

135

Rel’torcd
and re-
pair’d the
Laws.

OF De?
{centse .

 
 

 

¥36

_ @336 ipiftagpef tbs- Ch. 7.1

Si qua? ﬁne Liberzk deceﬂérir Pater (mt Mater
eju: in Hereditatem juccedant, rvel Frater (val
Soror, [i Pater 69' Mater deﬁm‘; [i me has habitat,
'Fmter val Soror Palm ruel Matrix, 629‘ Jamey;
iﬁquinmm Genetalium, 61ml elm? propio're: in par-
match: ﬁm‘ berea’itario .70”? [accezllmt 5 Et dam
{u‘i‘lribk fexm exriterit 69‘ baarealifw ab Male ﬁt Fe-
m’m! mm beeredz'temrg pri-mum Patrzk Feoa’um
primagmitm Filim babeat, Emptiom: were 'C’?‘
Jeincep: Acquiﬁtiones Jet mi magi: roelz't, fedﬁ
Backland babeat quam ei Pa'rmre: dederint, non
Mittat earn extra cognatiomm ﬁmm. '

~ Iha‘ve obferv’d and inferred this Law,
fopTwo Reafons, viz. Fir/l, To juf’cify whac
1 before faid, That ;the Laws of‘Normalmly
,took the Englzﬂa Laws, for their Pattern in
many Things 5 Vide le Coutumier,:cap, 25, 26,
36,-é‘c. And SC’COﬂdzy, To fee how much
the Laws of England grew and increafed in
their Parcicularity and, Application be—
tWCCﬁ this Time and the Laws of William I.
which in Chapter 36, has no mqre touching
Defcents but thiSJIUiz; Si quit inteﬂatm oéierit,
liberi ejm bearealltatem equaliter dividant. But
Procefé of Time grafced—ther‘eupon, and
made partic'ular Proviﬁons for particular:
Cafes, and added Diftributions and Subdi-

Viﬁons to thofe General Rules. ‘ f
Thefe Laws of King Henry I. are a kind
of Mifcellany, made up of thofe ancient!
Laws, called, The Law: of tbe Confeﬂofr, and
King William I. and of certain Parts. of
the Canon and Civil Law; and of Other,
Proviﬁons, that Cuﬁom and the Prudence;

o
Ch. 7.. atnmmuniitatn of England. 137

of the King and Council had thought upon,
chofen, and put together.

King Stephen fucceeded, by Way of Ufur— King Ste.
pation, upon Maud the Sole Daughter and Pim-
Heir of King Hen. I. The Lawsof Hen. I.
grew tedious and ungrateful to the People,
partly becaufe new, and fo nor fo well
known, and partly becaufe more difﬁcult
and fevere than thofe ancient Laws, called,
We Confe/ﬁr’s ; for Walﬁng/mm, in his l’podigma
Next/trite, tells us, That the Londoners peti-
tioned Queen Zl/[mzd, ut liceret e23 mi Legibm
ﬁmﬂi Edvardi (’3' 72072 legibm Patric ﬁu' Henrici,
amid grave: emnr; and that her Refufal gave
Occaﬁon to their Defeétion from her, and
ﬁrenthened Sfépbé'n in his Ufurpation 5 who,
according to the Method of Ufurpers, to
fecure himfelf in the Throne, was willing
and ready to gratiﬁe the Deﬁres of the Peo-
ple herein; and furthermore, took his Oath,
I/t‘, That he would nor retain in his Hands
the Temporalties of the Bifhops; 241}, That
he would remit the Severity of the Foreﬂ'
Laws ;_ and 341}, That he would alfo remit
the Tribute of Danegelt: But he performed
nothing. ‘ ‘

His Times were troublefome, he did lit~
tle in relation to the Laws; nor have we any
Memorial of any Record touching his Pro-
ceedings therein, only there are fome few
Pipe Roll: of his Time, relating to the Re‘
venue of the Crown.

Henry II. the Son of Maud, fucceeded K. 3,11,
Step/9m, he Reigned long, viz. about Thirty
Five Years; and tho’ he was n0t without

' great

 
T138 me. mitten! at the 921.7.

‘ great Troubles and Difﬁculties, yet he

built up the Laws and'the "Dignity of

the‘Kingdom to a great Height and "Per-
‘feétionuFog “ " ' "‘ ’ ' ‘

Settles Fir/é, In the Entrance of his Government.

Pegcc’md; he fettled the Peace of the Kingdom; he

3:303:31. alfo reformed the Coin, which was much
' ; ? adulterated and debafed inl‘the Times and

Troubles of King Stepben; Et‘ Leger'Henrici:

arw' fui pragcepit per totum Regnung in'qjolzzlsiliter
abﬁrvari. " Hoveden. " 7 ' " ’
Conﬁitu- Setomll}, 'Againﬂ; the Infolenc-iesand Ufur.

rionsof pations of the Clergy; he'by the A'dt'rice of
5’1"? his Council On Parliament at Clarendon, en-

4;” aﬁedﬁthofe SiXteen‘Articles mentioned by.
Mat. Para}, fub‘Anno t164. They are long,

and therefore Iremit you thither'for the'

Particulars of them. ‘ ‘ ‘ " '

’Tis true, MammBec/let, Archbifhop of
Canteréur}, ‘ boldly 'and infolently‘ took upon

him to declare many of thofe Articles, void,
efpecially thofe Five mentioned it): his Epi‘.

ﬁle to his Suﬂ‘ra ans, ”recorded ‘by Homa’en‘,

viz. Iﬂi, ‘Thattéete fh‘oul‘da‘be no Appeal

to the Bifhop, without the King’s Licence.

2:11], That 'no Archbifhop. or Biﬂtop fhoulda

go over the Seas at 'thePope’s Command:
without the King’s Licence. 3411], That the

Bifhop lhouldnot excomm’imicate the King’s

Tenants in Capite without.- the King’s Licence.‘

4&1], That the Bilhop {hould ‘not; have

the Conuzance of Perjury,‘ or Fz'dei Lzeﬁomér.

And, gtblj, That the Clergy {houldbe'con-
vened‘before Layjudges, and that the King’s

. t ' ‘ ' ‘ ‘Courts;

 
€3.13: '73 (13311131011 in?! 0f. England. {53?

Courts {hould have Conuzance of Churches
and of Tythes. ’ '1 . r -

Thirdly, He failed Up the MuniCipal Laws Improv'd
of the Kingdom to a’greater Perfeétion, thc‘LaWSn
and a more orderly and regular Admini— ”‘ *
ﬁration than befOre; ’tis true, We have no
Record of judicial Proceedings {0 ancient
as that Time, except the Pipe Rolls in the
Exchequer,“ which are only Accounts Of his
Revenue: But we need no other Evidence
hereof than the Traétate of Glanrvil/e, which
t'ho’ perhaps it was not written by that
Rarzzrlpbm dc Glanrvilla, who was yuﬂitiarim
Anglia? under Hm. II. yet it feems to be
wholly written'at that Time, and by that
Book, tho’ many Parts) thereof are at this
Day antiquated and altered, and in that
long Courfe of Time, which has elapfed
ﬁnce that King’s Reign, much enlarged,
reformed, and amended, yet bycomparing
it with thofe Laws of the Confe/fbr and Com
qeror, yea, and the Laws of his Grandfa~
ther King Hm. I. which he conﬁrmed; it
will eaﬁly appear, that the Rule and Order,
as well as the Adminiﬁrarion of the Law,
was greatly improved beyond what it was
formerly, and we have more Footﬂeps of,
their Agreement and Concordherein With
the Laws, as they were 11de from the Time
of E4222. 1. and downwards, than can be
found in all thofe obfolete Laws of Hm. I.
which indeed were but diforderly, confufed
and general Things, rather the Cafes and
Shells of direé’ting the way of Adminiﬂra-

\ ; . . t (19;).

‘3.
-

“maﬁ
"’ ‘1." T; "V
‘<;i““‘! WA ‘
‘3 .‘ - - 2. ﬂ _\ b. . <-
- MM“.—

’C'“? ;:é:;“§-;.I:I-m'Li.;rr‘Q‘-‘ ‘ ,- ‘ ,
‘

a,
c.

K .-
«A - a):

‘7‘
,

 
 

14o

Inconve-
niencies
in the
Laws.

’ Elbe ﬁgiftazp of the Ch. 7.

tion than Inftitutions of Law, if compared
with Glmwille’s Traétate of our Laws.

Fourtbl}, The Adminiﬁration of the Com-
mon juﬂice of the Kingdom, feems to be
wholly difpenfed in the County Courts,
Hundred Courts, and Courts Baron, ex-
cept fome of the greater Crimes reformed
by the Laws of King Hm. I. and that Part
thereof which was fometimes taken up by the
yu/mzarzm Angina : This doubtlefs bred great
Inconvenience, Uncertainty, and Variety
in the Laws, tviz.

Firff, By the Ignorance of the Judges,
which were the Freeholders of the County;
For altho’ the Alderman or Chief Coni’table
of every Hundred was always to be a Man
learned in the Laws; and altho’ not only
the Freeholders, but the Bifhops, Barons,
and great Men, were by the Laws of King
Hm. I. appointed to attend the County
Court; yet they feldom attended there, or if
they did, in Procefs of Time they negleéted
the Study of the Engliﬂ; Laws, as great
Men Ufually do.

Secondly, Anather Inconvenience was,
That this alfo bred great Variety of Laws,
cfpecially in the feveral Counties: For the
Deciﬁon orJudgments being made by di.
vets Courts, and feveral Independentjudges
and Judicarories, who had no common In~
teref’t among them in their feveral Judica—
tories, thereby in Procefs of Time every
feveral County would have feveral Laws,
Cuﬁoms, Rules, and Forms of Proceeding,
which is always the Effect of feveral In-

" ‘ dependent
Ch. 7. Qtamman 1am of England. I4r

dependent Judicatories adminiﬂred by feve~
ral Judges. -

Third/y, A Third Inconvenience was,

That all the Buﬁnefs of any Moment was
carried by Parties and Factions: For the
Frecholders being generally the Judges, and
Converting one among another, and being
as it were the Chief Judges, nor only of the
Fae’t, but of the Law; every Man that had
a Suit there, fped according as he could
make Parties, and Men of great Power and
Intereﬁ: in the County did eaﬁly overbear
others in their own Caufes, or in fuch
wherein they were interefted, either by
Relation of Kindred, Tenure, Service, De-
pendance, or Application. ‘

And altho’ in Cafes of falfe Judgment, Remedis
the Law, even as then ufed, provided a Re— ed; By
medy by Writ of falfe Judgment before the Prdaim
King or his Chief Juftice; and in cafe the "‘3
Judgment was found to be fuch in the Coun-
ty Court, all the Suitors were conﬁderably
amerced, (which alfo continued long after
in Ufe with fome Severity) yet this proved
but an ineffectual Remedy for thofe Mil:-
chiefs. '

Therefore the King rock anOther and a JRWC"
more effeétual Courfe; for in the 22d Year I“"""""
of his Reign, by Advice of his Parliament
held at Northampton, he inﬁituted Juf’tices
itinerant, dividing the Kingdom into Six
Circuits, and to every Circuit allorting
‘Three Judges, Knowing or Experienced
in the Laws of the Realm: Thefe Jui’tices

with

 

 
 

 

1:42

 

_ we @1111:pr tbé ch; 73:
with their. feileral Circuits are declared by
Hovea’cn, fab eodem Anna, 2'. e. 22 H z. Viz.

1. Hugo .Creﬁ', Whiter”: ﬁlim Roé‘erti, é‘
Roberta: Mama/é], for Norfolk, Sufhlié, Cam—
bridge,‘ Huntingdon, Bedford, Bucking/mm, Eﬂéx,
and Hartford Counties. 5

2. Hugo de Gundevilla, W'. ﬁlizi: ﬁadulpbg
W W. 3472?, for'Limofﬂ; Nottingbmn, Dark];
Staﬁbrd, Warwick, Nortbmhpton, and Leiceﬂer
Counties. ‘ j , “ ,

3. Roberta! ﬁliﬂ: Bernardi, Ric/midi” Giﬂ'ard,
(’9‘ Roger”: ﬁliu: Ramfrej, for Kent, Surrey;
Suﬂéx, Hampfhiref 86712:, and Oxon Counties.,
. 4. W ﬁlim Step/uni, Bertcin de Verdun, é
Turﬁavi ﬁliu: Simonis, for Hereﬁrd, Glance/fer,
Wane/fer, and Salop Counties.

;. Radulpbm ﬁliu: Stephani, W Ruﬁ‘m, (9‘
Gilbertu: Pipard, for the Counties of Wilt;
Dorﬁt, Somewﬁt, Devon, and Cornwall. .

6. Roberta: (1e Watts, Raa’ulpbm (1e Glah'viﬂa,
C" Roberta: Piclmot, for the Countiesbf Ybrlé'z
Richmond, Lama/fer, Copland, We/z‘merland,
Nortbumberldnd, and Cumberland.

Hi, ( Conﬁlia Arc/siepiﬁoporum Epiﬂyoporum
Comitum 69‘ Baronum Regm', &c. apud Nottinge-
1mm cxi/t‘entium) mzﬂi ﬁmt perﬁngulo: Anglia
Camitatm é‘ jum'vemnt quad cuilibet jmﬂmm
canférvarent ilk/21m. Harvedenﬁ). 3 13. «‘3 MatPas
w, in Anna I 176. And that thefe Men
were well known in the Law, appears by:
their Companion Radulpbm ale Glan'villa, who.
(betas to be the Author of the Treatife Dc

Leg‘ibut
Ch. 7. éummuu iLﬂh) of England:

Legion: Anglia, and was afterwards made
Q‘uﬂitiarim Anglia). \
, To thofe juﬁices, was afterwards com-
mitted the Conuzance of all Civil and Cri:
minal Pleas happening within their Divi~
lions, and likewife Pleas of the Crown,
Pleas touching Liberties, and the King’s
Rights; and the better to acquaint them
with their Buﬁnefs, there were certain Ailifes
which were ﬁrﬂ enaéted at Clarendon, and af-
terwards conﬁrmed at Northampton; they
were not much unlike the Capitula 1mm}
mentioned in our old Magma Charm, but not
{o perfect, and are let down by Hovedm,
Ulzi ﬁtpm, and are too long to be here in—
ferred: I {hall only take Notice of this One,
ruiz. Eﬁablilhing Defcents, becaufe I {hall
hereafter have Occaﬁon to ufe it, Si gm
obiori: Fromm .Temm boéredc: ipﬁu: remaneam
in talem Seiﬂna gun/em Paterﬁtm, 633“.

*But belides thofe Courts in Eyre, there
were two great ﬁanding Courts, «aim. The
Exchequer, and the Court of groom’s-Bench,
Vol Curiam comm ipﬂ) Rege, 'vel efm 7nﬂiciario;
and it was provided by the above-mention-
ed Aﬂifo:, $01 fin/ﬁche fad/mt 0mm: fuﬂicia:
6‘ Reflituoline; Spec‘lom‘e: ad Dominium Regir,
é‘ ad Coronam ﬁmm, per breve Domini Regi:
rvel illomm qui in {fur Loco erunt ole Feodo dimi-
dii Militi: {9’ inﬂa, Nifz' tam grandirﬂt qwerela
7110:1720» polﬂt deduci ﬁne Domino Rage ‘vel tali:
quam 7uﬂici¢ ez' repommt pro dubimtime fun,
'03] aa' i110: god in Loco ejur emm, {9°C.

, Neither do I ﬁnd any diﬁinét Mention of
the Court of Common Rem/o in the Time 1of
1 tors

to

Edit;

’ N0";
Norwich;
ﬂanding
What our
Author
here
writes, it:
appears
by Glan-
vvz'lle and
Others,
That the
Common.
Plus was
then alfo
in being,
and Magma
Charm has
only ﬁx’d
thatCourt;
to a cer-
tain Place
which be.
fore was
movable
and un-
certain.

 

 
£44 @152 ibiffn'ép at the Ch. 7.-

this King, tho’ in the Time of King 3‘01»;
there is often Mention made thereof, and
the Rolls of that Court of King 7063’s Time
are yet eXtant upon Record, €65 ruide pof}.
. _ fab Ricbam’i Primi, , _
11mm?“ The Limitation of the Afﬁfe of Novel Dif-
“°“' feiﬁn, is by thofe Afﬁfes'appointed to be,
a tempera guo Domimu Rex “omit in ﬁngliam‘”
proximm [DO/t" Pacis faéfam imer ipfum, 0“ Re-
gem ﬁlium ﬁmm.

The fame Kino afterwards, in the Twenty
ﬁfth Year of his Reign, divided the Limits
of his Itinerzmt j‘uﬂices into Four Circuits or
Diviﬁons, and to each Circuit aﬂigned a
greater Number of Juﬂices, «viz. Five at
leaﬁ, which are thus fet down in Ho'vea'm,
Folia'337. vviz. _ ,

Juﬂiccs.

Itineram.

Anna [179. 2; H. 2. Magno Concilio celee
[7mm apud ”ﬁnds/bores, Commnni Conﬁlz'o Arc/31'6-
‘i/Eoporum Comitum 6‘“ Baronum (9' comm Rage
Filio ﬁlo, Rex ali'viﬁt Aﬂgliam in quanta?“ Panes,
é‘ unicm’ ue partium pnefecit rw'ro: ﬁzpiente:

‘ad faciemyum inﬂitiam in Term ﬁm i7: Lime
MoJumf -

. I. Ricardm Epifcopm Winton, Ricanlm 771:2;
ﬂmmrim Regzk, Mobolam ﬁlim Turola’i, T/Jo-
maa‘ Baﬂét 67’ Robertu: Je Whiteﬁeld, for the
Counties Of Southampton, PVZ/tr, Glance/Err,
Somerﬂat, Devon, Cornwall, Berle: and 096m.

2. Galfridu: Elienfz'r Epi/copm, Nicbolam Ca-
pellanm Regés, Gilbertus Pip/1rd, Reginald a'e
Mﬁbecl’. Capellanm Regir 29' Gaulfria’u: ‘Ho/Ee,
for theICounties of Cambridge, Humingdon,

3 Nar~

 
Ch. 7-. qtummuu mm of England.

Northampton, Leiceﬂer, Warn/Zak, ”ﬁnch/hr,
Hereford, S raﬂbrd' and 5510;).

3. joke/mm: Epzfcopm Naru'icenﬁs, Hugo [Mm-
dac Clericm Regis, Mic/Jae] Bellct, Rich—(1771:“ (16
1e Fee, (9‘ Razlulp/Jm Brita, for Norfolk, SuﬂTv/k,
Eﬂéx, Harzﬂrd, Alida’leﬁ'x, Kent, Surrey, Sir/ﬁx,
Buck: and Bedfbm'.

4. Galﬁ'edm (1e Luci, yobnnnc: Comyn, Hugo
(Ie Carr/l, Ra/Iulpbm Je Glrm'villa, W (1e Ben-
dings, Alarm: de Furnellzlt, for the Counties
of Nottingham, Derby, York, Nort/mmberlnbd,
W/lmerlmd, Cumberland, and Lamar/fer.

Iﬂi fun; Ely/ﬁche in Curia Regi: conﬁituti ad
audiendum clamore: Popu/i.

This Prince did thefe Three notable
Things, 'Uiz.

Fir/f, By this Means, he improved and
perfeé‘ted the Laws of England, and doubt-
lefs transferred over many of the Engliﬂ;
Laws into Norman/l], which, as before is ob-
ferved, caufed that great Suitablenefs be-
tween their Laws and our557fo that the
Similitude did arife much more by 21 Con—
formation of their Laws to thofe ofEnglaml,
than by any Conformation of the Engliﬂz
Laws to theirs, efpecially in the Reigns of
King Hm~.lI. and his Two Sons, King
Ric/yard, and King 701m, borh of whom were
alfo Dukes of Normandy.

115

He im-
prov’d
the Laws.

Secondly, He check’d the Pride and In- Check’d
folence of the Pope and the Clergy, by thofe the Pope,

Conﬁiturions made in a Parliament at Cla—
rendon, whereby he reﬂrained the Exorbrtam:
L, ' Power

 
 

I46

Conquetu
cd Ireland.

K. ii Eh. I.

@1332 {19mm of the Ch. 7.
Power of the Eccleﬁaf’ticks, and the Exemp—
tion they claimed from Secular Jurifdiéizion.‘
And, -

Third]; , He fubdued and conquered
Ireland, and added it to the Crown of
England, which 'Conquef’t was begun by
Ric/NIH] Earl of Stigule or Strongbow, 14. H. 2,
But was perfected by the King himfelf in
the Seventeenth Year of his Reign, and for
the greater Solemnity of the Buﬁnefs, was
ratiﬁed by the Fealties of the Bilhops and
Nobles of Ireland, and by a Ball of Conﬁr—
mation from Pope Alexander, who was wil-
ling to intereft himfelf in that Bulinefs, to
ingratiate himfelf with the King, and to
gain a Pretence for that arrogant Ul'urpa-
tion of difpoﬁng of Temporal Dominions.
Vide Ho’veden, Anna 14 H. 2. ‘

v Ric/947d I. eldell: Son of King Henry H.
fucceeded his Father. I have feen little of
Record touching theJuridicaI Proceedings,
either of him, or his laid Father, Other than
what occurs in the Pipe-Roll: in the Exche-
quer, which both in the Time of Hen. II.
Rich I. and King 701m, and all the fuc~
ceeding Kings, are fairly prefervecl; and
the belt Remembrances that we have of
this King’s Reign, in relation to the Law,
are What Roger Harveden’s Annals have deli-
vered down to us, viz.

HisNaval . Fir/2‘, He inﬁituted aBody of NavalLaws

Latvs, 6's.

in his Return from the Holy Land, in the
Iﬂand of Oleron, which are yet extant with
fomc Additions; De quibm, Vide Mr. Sal/[en’s
‘Mare Clam/hm, Lib. 2. mp. 24. and lf‘uppofc

thev
Ch. '7. Qtuuimun mt at England.

they are the fame which are'attributed to
him by Milt. Paris", Anna 1196. and he
confiituted Juﬁices to put them in Exe—
cution.

Secondly, He obferved the fame Method
of dii’tributing juﬁice as his Father had be-
gun, by juf’tices Itinerant per ﬁngulo: Ang/ix
Cominztm, to whom he delivered two Kinds
of Excraets or Articles of Inquiry, rvz'z.
Capitnln Corome, much reformed and aug-
mented from what they were before, and
Cnpz'tnln tle j’nzlaez's; the whole may be read
in Hoeerlen, f0. 42g. fat]; Anna gR. I.- and
by thofe Articles it appears, That at that
Time there was a fettled Court for the
Common-Pleas, as well as for the @tmzis-
Bench, tho’ it feems that Pleas of Land
were then indiﬁerently held in either, as
appears by the ﬁrﬂ: and fecond Articles
thereof, where we have, Placim per breeze
Domini Regzk, ml per breve Cnpz'talzft gin/fiche,
fuel a Capimli Carin Regz'r comm en's (72ﬂz’cir’r)
miﬂiz: The former whereof feems to be the
Common-Pleas, which held Pleas by Original
Writ, which Writ was under the King’s
Teﬂe when he was in England; but when
he was beyond the Seas, it was under the
Teﬂ‘e of the juﬂiciarim Angling as the Cu or
‘Regnz' in the King’s Abfence.

The Power which the Juﬁices Itinemnt
had to hold Plea in Writs of Right, or the
Grand Afiize,was fometimes limited, as here

by the Articnli Coronm under Hm. II. to half

a'Knight’s Fee, or under: For here in theft:
Articles it is, De Alazgm} i406”; tilfle firm {"2

a

¢ *- ("3‘357331‘

I47

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ofjuﬁb
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rant,

 
 

148

Weights
and Mea-
furcs.

K. 30%».

 

my: biting? of the Ch. 7‘.-

centum Solidi: c’yﬂiitfm. But in the next Com-
millions, Inﬂruétions, or Capitula Corome, it
is, De Magni: A] 1/9: uﬁjue ml Decem Libratas
Terra (9“ infra.

In his Eighth Year, he eﬁablifhed a Com-
mon Rule for Weight: and Meat/hrs: through—
out Englaml, called Aﬁ/éz (1e Menﬁtrir, where‘
in we ﬁnd the Meafute of Woollen ClOths
was then the fame with that of .M’agna
Charm, 9 H. 3. Viz. De a'uobm ulm': infra
Liﬁtrm.

In the Year before his Death, the like
Juf’tices Errant went through many Counties
of England, to whom Articles, or Capitulcz
placitarum Corome, not much unlike. the for~
mer were delivered. Vide Horvulevz, fab .4er
1198. f0. 44;. '

And in the fame Year, he iffued Com-
miHions in the Trent, Hugh a'e Neville being
Chief Juﬁice; and to thofe were alfo de-
livered Articles of Inquiry, commonly cal-
led Aﬁﬁc ale Fore/la, which may be read at
large in Hoveden, ﬁll: eodem Anna. Thefe
gave great Difcontent to the Kingdom, for
both the Laws of the Porch, and their Exe-
cution were rigorous and grievous.

King .7019” fucceeded his {aid BrOther,
lamb in the Kingdom of England, and Dutchy
of Normandy; the Evidence that We have,
touching the Progrefs of the Laws of his
Time, are principally Three, rm‘z. Fir/i, His
Charters of Liberties. 2dly, The Records
of Pleadings and Proceedings in his Courts;
And 3:11], The Courfe he took for fettling
the Engliﬂ: Laws in Ireland.

' 1. Touch:
Ch. 7. Grumman mm of England. :49

1. Touching the ﬁrﬁ of thefe, his Charters I.
pf the Liberties of England, and ofthe Fore/l, His Char-
were hardly, and with Difﬁculty, gained m5,
by his Baronage at Stmm, Anna Dom. 121;.
'T he Collection of the former was, as Mat.
Paris tells us, upon the View of the Char-
ter or Laws of King He». I. which lays, he
pOntained qualeam Libertarc: é‘ Leger 4 Reg:
Edvardo Sant‘i‘o, Eccleﬁ‘t (5‘ Magnetibm come];
fat, exceptit quibufdam Libertatibm qua: idem
Rex dc ﬁlo adjecit; and that thereupon the
Baronage fell into a Refolution to have thofe
Laws granted by King j‘olm. But as it is
certain, that the Laws added by King
Hm. I. to thofe of the Conﬁ/Iér were many
more, and much differing from his; (0 the
Laws contained in the Great Charter of
King 70/321, differed much from thofe of
King Heal. Neither are we to think, that
the Charter of King john contained all
the Laws of England, but only or princi-
pally fuch as were of a more comprehenﬁve
Nature, and concerned the common Rights
and Liberties of the Church, Baronage and
Commonalty which were of the greateﬁ Mo-
ment, and had been mof’t invaded by King
ﬁlm’s Father and Brother.

The leifer Charter, or De Foreﬂa, was to
reform the Exceﬂ'es and Encroachments
Which were made, efpecially in the Time of
Ric/L I. and 114171.11. who had made New
Aﬂ'oreﬂations, and much excended the Ri~
gout of the Foreﬁ Laws: And b0th theft:
(Shatter? do in Subﬂance agree with that

" ' L ; Alagna

 

 
 

1,59?

2.

Records,
6%:

His
Courts,

'0.

ﬁre {grammar 1;.th cm.

Magna Charm, (9' ole Foreﬂa,granted and con-
ﬁrm’d in 9' Hm. 3. Ifhall not needto ref

‘ cite them, or to make any Collections or In-

ferences from them; they are both excant
in the Red Book of the Exchequer, and in
Mat. Paris, a!) Anna rug. and the Record
and thetHif’totian do Verbatim agree.

As to the Second Evidence we have of .
the Progrefs of the Laws in .King jolm's
Time, they are the Records of Pleadings
and Proceedings which are ﬂill extant:
But altho’ this King endeavoured to bring
the Law,’ and the Pleadings and Proceed-
ings thereofJ to fome better Order than he
found it; for faving‘his Proﬁts whereof, he
was .Very ﬁudious, ’andfor the better Re-
dué’tion of 'it into Order and Method, we
ﬁnd frequently in the ReCords of his Time1
Fines impo‘fed; pro Sr’alriloguio, which were
no Other than Muiéts impofed by the Court
for barbarous and diforderly Pleading:
From whence" afterwards. that Common
Fine arofe,‘ Pro ’pulcbre placimndo, Which was
indeed no ‘other than a. Fine for want of it;
and yet‘for all this, the Proceeding in his
Courts were rude, imperfect, and defe-
é’tive, to what they Were in the enfuin g Times
of Ea’w. I. éw. But fome few Obfervables
Ifhall take Notice of upon the Perufal of
the Judicial Records of the Time of King
Etc/m, 'Uiz. , I '

1/}, That the Courts of King’s-Bend) and
gamma-Plea: were then diﬁinét Courts, and
‘ diﬂi116t~
(311.7. Qtammuu law of England.

diﬁinétly held from the Begining to the End
of King 7obn’s Reign.

all}, That as yet, neither one nor borh
of thofe Courts difpatch’d the Buﬁnefs of the
Kingdom, but a great Part thereof was dif-
patch’d by the f‘fuffim Itineram, which were
ibmetimesin Ule, but not without theirlnter-
mifﬁons, and much of the Publick Buﬁnefs
was difpatch’d in the County Courts, and in
ther inferior Courts; and ('0 it continued,
tho’ with a gradual Decreafe till the End of
King Edw. I. and for fome Time after:
And hence it was, That in thofe elder Times,
the Proﬁts of thofe County Courts for which
the Sheriff anfwered in his Farm, dc Proﬁcm‘:
Comimtm; alfo Fines were levied there, and
puff Fines, and Fines pro liccmm concordandi,
and great Fines there anl'wered ; Fines pro
I717Mi/il‘i0ﬁil’m: 1312987243, Fines for Mifdemcanors,
tho’ called Amerciaments, arofe to great
Sums, as will appear to any who {hall per—
ule the ancient Vi/‘comiclr. , »
But, as llaid before, the Buﬁnefs of In—
ferior Courts grew gradually lefs and lefs,
and confequently their Proﬁts and Buﬁuels
of any Moment came to the Great Courts,
where they ere difpatch’d with greater
Juﬁice and Equality. Beii es, the greater
Courts obl'erving what Partiality and Bro—
cagzc was ufed in the inferior Courts,gave a
pretty quick Eat to Writs of falfe Judgment,
which was the Appeal the Law allowed
from erroneous Judgments in tl e County
Courts; and this, by Degrees, walled the
Credit and Bullnefs of thofe inferior Courts.
L 4 grit},

151

 
 

w"

{J

 

@1139 {pitting of the Ch. 7.1

311/}, That the Diﬁinétion between the
King’s-Bench and Common-Bench, as to the
Point of Communia Placita, was not yet, nor
for fome Time after, fettled; and henceit is, '
that frequently in the Time of King 3min,
jwe {hall ﬁnd that Common Plea: were held
in B. R. yea, in [Vic/J. (9‘ Hill. I; 7054727113",
3 Fine is levied comm iyﬁ; Rege, between
Gillycrt H22, Roger and I-Ielwi/g‘ his Wife,
Plaintiffs, and Robert Barpyard Tenant of .
certain Lands in Kirby, &C.

And again, whereas there was frequently
a Liberty granted anciently by the Kings
of England, and allowed, QM! non implacite-
znr niﬁ comm Rage; 1 ﬁnd inter Placita dc di-
vererermime fecamdo 70164717128, That upon
a buit between Henry dc Racbola, and the :
Abbo: of Leicq/ler befOre the Juﬁices de 847100,
the Abbor pleaded the Charter of King
Ric/94rd I. Quad idem Abbwpra nullo reﬁmndeat 7
niﬂcomm ipfo Rage (val Capitali yuﬁiﬁario fut); ;
and it is ruled againﬁ; the Abbot, ,GZyia omnia :-
Placim gme comm Juﬁic. de Banco tenem‘ur, coo .
ram Domino Regi ml ejm Capitali yuﬂitiario a
teneri intelliguntur. But this Point was after; -
wards fettled by the Statute of Magmz Charm,
,3qu Communia placita iron ﬁguanmr Curiom;
noﬂmm. ‘ " = " ' ’ ' ' '

4:121], That the four Terms were then held '1
according as was' ufed in "After-times with |
little Variance, and had the fame Denomia
nations theyﬁill retain. ' ‘ ‘ ‘

' gzbly, That there were oftentimes Conﬁ- -
derable Sums of Money, or Horfes, or other :
Thrq given to obtain Juﬁice, fometirnes:

" (15 f
Ch. 7. Grumman mm of England.

’tis {aid to be, pro babemla Inquiﬁtione utﬁlprd,
and inter placim incerri temporzk Regzér ffo/oanmés.
The Men of Tarmoutb againﬁ the Men of
Haﬂings and H/incbelféa, Aﬁmnt Domino Regi
We: Palfridos, (’9' ﬁx xii/lurid: Narenfé: ad Inqui-
ﬁtionem Izabendam per Legales, &c. and fre-
'quently the fame was done, and often ac—
counted for in the Pipe-R0115, under the
Name of Oblam ; and to remedy this Abufe,
was the Proviﬁon made in King jolm’s and
King Hen. lII.d’s Charters, Nulli Vendemu: 7n-
ﬂitiam ml Reflum. But yet Fines upon Oriv
ginals being certain, have continued to this
Day, norwithﬂanding that Proviﬁon; but
thofe enormous Ob/ata before-mentioned,
are thereby remedied and taken away.

6tbly, That in all the Time of King 70b2,
the Purgation per Ignem 6")” Aquam, Or the
Trial by Ordeal. continued, as appears by
frequent Entries upon the Rolls; but it
feems to have ended with this King, for I
do not ﬁnd it in Ufe in any Time after:
Percharpce the Barbaroufnefs of the Trial,
and Perfwaﬁves of the Clergy, prevailed at
length to antiquate it, for many Canons
had been made againi’t it.

7th}, In this King’s Time, the Defcent
of Socage as well as Knight’s Service
Lands to the eldeﬁ' Son prevailed in all
Places, unlefs there were a fpecial Cuﬁom,
that the Lands were parrible inter Mafculosg
and therefore, Mic/J. féczmdo 7013mm, in a
rationabili parte Bonamm, by Gilbert Be'villc
againﬂ William Berni/1e his elder Brorher for
Lands in Guntborpe, the Defendant pleaded,

25404

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ﬁtye Ipiﬂagy. of the Ch. ‘7.

.Qtod mmquam partim ml partibilicz fuere; and
becaufe the Defendant could not prove it,
Judgment was given for the Demandant;
And by degrees it prevail’d f0, that where-
as at this Time the Averment came on the
Part of the Heir at Law, that the Land
nunqmm partita rvel partibilzér extetit; in a lit-
tle Time after the Averment was turn’d on-
the Other Hand, viz. That tho’ the Land was
Socage, yet unlefs he did aVer and prove
that it was partim é“ partibilzk, he failed 'in
his Demand.

Midi], The third Inﬂance of the Pragreﬁ
of King 7019723 Reign, in relation to the
Common Law, was his fettling the fame in
Ireland, which he made his more immediate
and particular Buﬁnefs: But hereof we
{hall add a particular Chapter by it felf,
when we have thewn you what Proceedings
and Progreﬂ; was made therein in the Time
of Ed»). I. The many and great Troubles
that fell upon King j‘olm and the whole
Kingdom, efpecially towards the later End
of his Reign, did much hinder the good
Effeét of fettling the Laws of England, and
confequently the Peace thereof, which
might have been bottom’d, efpecially upon
theGreat Charter. But this Unforthnare
Prince and Kingdom were Io intangled
with intef’tine Wars, and with the Invaﬁon
of the Frencb, who aﬂil‘md the Engliﬂ: Barons
againf’t their King, and by the Advantages
and Ufurpations that the Pope and the Clergy

r t made
Ch. 7. Qtummau 11am 0f England. 15';

made by thofe Dif’tempers that all ended
in 21 C011nt hon with the King 5 Death.

I come therefore to the long and trouble- K.Hen,III.
fome Reign of Hm III. who was about
Nine Yeats old at his Father’s Death; he
being bo111m far/20 ﬂmsfi Remivii, 1207. and
King 70/971 died in Ftﬂo fimffi Lane 1216. Hlﬁmy
and the y oung King was otowned the 28th ocfh “‘5
of Dicker, being then in theI Tenth ‘1 eat of mm“
his Age, and was u11de1 1l eT utelage of
IV [Ham Lil ll Maiihal
1 he Noni/1‘17 weie quick and earnef‘t, not-
withﬂanding his Minority, to have the Li—
berties and L aws of the Kingdom conﬁrm’d;
and Pieparatm y thereto in the Year 121;:
W tits iffued to me feveral Counties to in—
quiie by Twelve good and lawful Knights,
@me fummt Lit’zertates in Anglia tempore Regm'
Henrici art/i jui, returnable qmmlmzz Paﬁbet.
What Succefs thofe Inquiﬁtions h ad, 01 what
Returns were made thereofJ appears not .
But in the next Yea1 followingJ the young
King ﬁanding 111 Need of 3 Suppl y ofMoney
fiom the Clergy and LaitV', none would be
gmntod, 1111 leis the liberties of the Kings
dom were conﬁrm d as they were expteisd
and contain (‘1 1n the Two Charters of King
701m; which the King accordingly granted
in his Parii :a 1.-ont at [1’ eﬂminier, and they
were accordingly proc laimedﬂm quodC/am 11c
111/orztmaue Regpmz in 721111;; invmizztur (liﬂimiles) _
1141122317}: 157210 122/.
In the Yeat 1227. The King 1011111? 111»
Paul iamentc 'lt Oxfowll and being now of full
AW;

 
 

156

ﬁbe hiring? of the Ch. 7,

Age; by ill Advice, caufes the Two Char-
ters he had formerly granted to be can-
cell’d, Ham: accaﬂonem pnetenrlem guad Cbartd
iII‘e conceﬂlz fuerunt é‘ Libertates fcripm é‘
ﬁgurine alum 1'pr erat ﬁll) Cuﬂoa’ia necﬁu' Cor-
pori: aut ﬁgilli aliquam pate/fate»: babm’t, and:
wiribm carcre debuit, 01:. W hich.Fa& ocea-
ﬁoned a great Dii’turbance in the Kingdom:
And this Inconﬂancy in the King, was in

‘Truth the Foundation of all his future Trou-

bles, and yet was ineﬂ'eétual to his End and
Purpofe 5 for thofe Charters were not avoid-
able for the King’s Nonage, and if there
could have been any fuch Pretence, that
aione would not avoid them, for they were
Lam conﬁrm’d in Parliament.

But the Great Charter, and the Charter
of the Fore/l, did not expire f0; for in 127;,
they were again fealed and publifhed: And
becaufe after the Battle of Emﬂmm, the
King had wholly fubdued the Barons, and
thereby a Jealouﬁe might grow, that he
again meant to infringe it; in the Parlia-
ment at Marlbridge, cap. 5'. they are again
conﬁrm’d. And thus we have the great Set-
tlement of the Laws and Liberties of the
Kingdom eﬁablifhed in this King’s Time :
The Charters thcmfelves are not every Word
the fame with thofe of King 3‘05», but they
differ very little in Subf’tance.

This Great Charter, and Clank: dc Eire/fa,
was the great Baﬁs upon which this Settle»
ment of the Engliﬂa Laws ﬂood in the Time
of this King and his Son; there were alfo
fame additional Laws of this King yet extant,

which
Ch. 7. Qtunmtun tam of Engiand. 1‘37
which much polifhed the Common Law,

viz. The Statutes of Merton and Marlbrizlgej

and fome Others.

We have likewife Two Other principal
Monuments of the great Advance and Per—
fec’tion that the Engliﬂ; Laws attained to un-
der this King, rain. The Traétate of Bram»,
and thofe Records of Plea, as well in both
Benches, as before the 7uﬂice: Itineranr, the
Records whereof are ﬂill extant.

Touching the former, ‘viz. Bragon’s Tra- Bruflm’s
étate, it yields us a great Evidence of the Treatifco
GrOWth of the Laws between the Times of
Henry II. and Hen. 111. If we do but compare
Glan'ville’s Book with that of Braﬂon, we
{hall fee a very great Advance of the Law
in the Writings of the later,over what they
are in Glan'uille. It will be Needlefs to in—
ﬂance Particulars; fome of the Writs and
Procefs do indeed in Subﬁance agree, but
the Proceedings are much more regular and
fettled, as they are in Braifon, above what
they are in Glan'ville. The Book it felf in
the Beginning feems to borrow its Method
from the Civil Law 5 but the greateﬁ part of
the Subﬁance is either of the Courfe of Pro~
ceedings in the Law known to the Author,
or of Refolutions and Deciﬁons in the
Courts of King’s-Bench and Common-Bench,
and before 7zt/h'ce: Itineram, for now the in~
ferior Courts began to be of little Ule or
Ef’teem.

As to the Judicial Records of the Time RCCOIdS.
of this King, they were grown to a much T‘mPi
greater Degree of Perfection, and the Plea- H” I"

‘ dings

 

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158

K. Ed». I. '

Tithe iipiffugp of the Ch. 5;
dings more orderly, many of which are
extant: But the great Troubles, and the
Civil Wars, that happened in his TimeJ gave
a great Interruption to the legal Proceed~
ings of Courts; they had a particular Com;
miﬂion and Judicarory for Matters happen-
ing in Time ofWar,rﬁiled, Placim zle Témpore
Yitréatiomr, wherein are many excel ent
Things: They were made principally about
the Battle of Eveﬂxdm, and after it; and for
fettling of the Differences ofthis Kingdom,
was the Diﬁztm, 0r EdiéZum (1e Kemlwortb
made which is printed in the old Magm
Charm.

We have little extant of Refolutions in,
this King’s Time, but what are either re-
membred by Braﬁon, 'or fome few broken
and fcattered Reports collected by Ember-
Izert in his Abridgment. ' There are alfo
fome few Sums or Conﬁitutions relative to
the Law, which tho’ poliibly not Acts of
Parliament, yet have obtained in Ufe as
fuCh; as De dzﬁriﬁione Scaccm‘ii, Stammm
P41712355? Germ/123) Dies Commune: in Bamo‘ Sm-
tutum Hibemizc, Stat. ale Seaway/'0, jurlicium
Colliﬁrigiz’, and Others.

We come now to the Time of Ed»). I.
who is well iiiled our Ewgh'ﬂ; 7&5ﬂzi m; for
in his Time the. Lawjmnﬂ per Swimmobtained
a very great Perfeﬂ‘ion. The Pleadings are
fhort indeed, but excellently good and per-
fpicuous: And altho’ for fome Time fome of
thofe Imperfections and ancient inconveni—
ent Rules obtain’d 5 as for inﬂame, in point
of DefeentsJ where the middle Brorher held
3 or
Ch. 7. Qtamtuun Law of England.

of the Eldei’t, and dying without IiTue, the
Lands defcended to the Youngel’c, upon that
old Rule in the Time of Hm. II. Nemo porejf
eﬂé Dominm & Haerer, mentioned in Glan'w'lle,
at leaﬁ if he had once received Homage,
1; E. r. Fitz, A'Uowry 23;. Yet the Laws
did neVer in any one Age receive f0 great
and fudden an Advancement; nay, I think
I may fafely fay, all the Ages ﬁnce his Time
have not done fo much in reference to the
orderly fettling and eﬂablifhing of the di-
f’cributive Juﬁice of this Kingdom, as he did
within a fhort Compafs of the Thirty ‘ﬁve
Years of his Reign, efpecially about the
ﬁri’t Thirteen Years thereof.

Indeed, many Penal Statutes and Provi-
ﬁons, in relation to the Peace and good Go-
vernment of the Kingdom, have been lince
made. But as touching the Common Ad—
miniﬂration of Juﬂice between Party and
Party, and accommodating of the Rules,
and of the Methods and Orders of Pro-
ceeding, he did the moi’t, at leaf: of any
King ﬁnce William I. and left the fame
as a ﬁx’d and ﬁable Rule and Order of Pro-
ceeding, very little differing from that
which we now hold and praé’ticeJ efpecially
as to the Subﬁance and Principal Contex-
ture thereof.

It would be the Buﬁnefs of 3 Volume to
fet down all the Particulars, and therefore
I fhall only give fome ﬂlortObfervations
touching the fame.

4. l' ,,
J I

159

 
 

'2.

 

me tertiary of the Ch. 7;

Fir/f, He perfeétly fettled the Great Char-
ter, and Cbarta ale Fareﬂa, not Only by a
Praétice confonant to them in the Diﬁri-
bution of Law and Right, but alfo by 1'th -
folemn Aél paired 2; E. 1. and {tiled Cait-
ﬁrmatione: Cbartarum. 5

Secondly, He eﬁabliﬂied and diﬁrib‘uted
the feveral Jurifdiétions of Courts within
their, proper Bounds. Arid becaufe this
Head has feveral Branches, I {hall fubdivide’
the fame, r‘viz.

I. He check’d the Incroachments and In-
folencies of the Pope and the Clergy, by the
Statute of Carlijle.

2. He declared the Limits and Bounds of
the Eccleﬁaﬁical Jurifdiétion, by the State
tute of Circumfpeﬁe Agent 6-“ Articuli Cleri.
For note, Tho’ this later Statute was not
publifhed till Edw. II. yet was compiled in
the Beginning of Edw. I.

3. He eﬁabliﬂted the Limits of the Court
of Common-Pleas, perfeétly performing the
Direélion of Magna Charm, Q4051 Cammunia
placita non ﬂtquamm‘ Curia noﬂm, in relation
to B. R. and in exprefs Terms, excending
it to the Court of Excheguer by the Statute
of Articuli fuper Chart/tr, cap. 4. It is true,
upon my ﬁrﬁ reading ofthe Placita (le Bantu
of Erin). I. I found very many Appeals of
Death, of Rape, and of Robbery therein;
and therefore I doubted, whether the fame
were not held at leaf’t by Writ in the Common
Plea: Court: But upon better Inquiry, I
found many of the Records before Tia/lice:-
3 Dim-3

. O
Ch. 7. Grumman tam of England.

Itinemnn were enter’d or ﬁll’d up among the
Records of the Common-Pleas, which might
occaﬁon that Mif’take.

4. He ef’tablifh’d the Extent of the Jurif.
diction of the Steward and Marfhal. Vida
Articuli fuper Chart/M, cap. 3. And,

5'. He alfo fettled the Bounds of Inferior
Courts, n0t only of Counties, Hundreds,
and Courts Baron, which he kept within
their proper and narrow Bounds, for the
Reafons given before; and f0 gradually the
Common Juﬁice of the Kingdom came to
be adminiﬁred by Men knowing in the
Laws, and converfant in the Great Courts
of B. R. and C. B. and before fir/lice: Itine-
ram; and alfo by that excellent Statute of
Weﬂmz‘nﬂer r. cap. 3;. he kept the Courts of
Great Men within their Limits under feveral
Penalties, wherein ordinarily very great
Incroachments and Oppreﬂions were ex-
ercifed.

The Third general Obfervation Imake
is, He did not only explain, but excellently
enforc’d, Magm C/mrm, by the Statute De
Tallagio non concedmn’o, 34 E. I.

Fourtbly, He provided againﬁ the Inter‘
ruption of the CommonJuﬁice of the King-
dom, by Mandates under the Great Seal, or
Privy Seal, by the Statute of Articuli firper
Charms, cap 6. which, norwithf’tanding
Magmz Cbamz, had formerly been frequent
in Ufe.

Fiﬁ/21y, He fettled the Forms, Solemnities,
and Efﬁcacies of Pines, conﬁning them to

M the

161

 
 

'162

7.

@118 119mm? of the €11.73-

the Common-Pleas, and t0 yujﬁce: Itinerant,
and appointed the Place where they brought
the Records after their Circuits,whereby one
common Rep‘oﬁtory might be kept of AlTu-
rances of Lands ;— which'he did by the Sta-
tute De modo [munch Finer, 18 E. I.

Sim/21y, He fettled that great and orderly
Method for the Safety and Prefervation of
the Peace of the Kingdom, and furpreﬁing
of Robberies, by the Statute of Mnton.

Servant/sly, He ﬁzttled the Method of Te-
nures, to prevent Multiplicity of Penalties,

which grew to a great Inconvenienee, and V

remedied it by the Statute of c9292}; Emptore:
Termmm, 18 E. I.

Eigbtbly, He fettled a fpeedier Way for R6-.
covery of Debts, not only for Merchants and
Tradefmen, by the Statutes of Affair, Hume],
(9' de Mercatoriém, but alfo for other Per-
fons, by granting an Execution fora Moiety
of the Lands by Elegit.

Nintbly, He made elfeauai'l’roviﬁon for
Recovery of Advowfons and Prefentations
to Churches, which was before inﬁnitely
lame and defeéiive, by Statute Weft’min—
ﬂer 2. cap. I.

Tent/51], He made that great Alteration in,

Eﬁates from what they were formerly, by
Statute Weﬁminﬂer 2. cap. 1. whereby Eﬁates
of F ee-Simple, conditional at Common Law,
were turn’d into Eﬂates-Tail, not remova-
ble from the Iffue by the ordinary Methods
of Alienation; and upon this Statute, and
tor the Qualiﬁcations hereof, are the Super-

" ﬁruéiures

 
ch. 7. Q‘t‘ammun mm of England.

ﬂrué’cures built of 4H. 7. mp. 32. 32 H. 8.
'P. and 3; H. 8.

Eleventbl], He introduCed quite a new
Method, both in the Laws of Wales, and in
the Method of their Difpenfation, by the
Statute of Rutland,

Twelftbly, In brief, partly by the Learn—
ing and Experience of hisjudges, and part-
1y by his own wife Interpoﬁtion, he ﬁlent-
ly and without Noife abrogated many ill
and inconvenient Ufages, borh in his Courts
of Jui’tice, and in the Country. He reel-i-
ﬁed and fet in Order the Method of collect-
ing his Revenue in the Exchequer, and re-
moved obfolete and illeviable Parts thereof
out of Charge; and by the Statutes of
PVe/fminﬂer I. and WMmin/fcr 2}. Glouceﬁer
and W'e/fminﬂer ;. and of Articuli ﬁgler Charms,
he did remove almof’t all that Was either
grievous or impractical out of the Law,-
and the Courfe of its Adminil’tration,and {ub-
f’tituted fuch apt, fhort, pithy, and effectual
Remedies and Proviﬁons, as by the Length
of Time and Experience, had of their Con-
venience, have f’tood ever ﬁnce without
any great Alteration, and are now as it
Were incorporated into, and become a Part
of the Common Law it felf.

Upon the whole Matter, it appears, That
the very Scheme, Mold and Model of the
Common Law, efpecially in relation to the
Adminiﬁration of the Common Iuﬁice be-
tWeen Party and Party, as it was highly
reétiﬁed and fet in a much better Light’and

M 2. @rdet

163'

'1:

12.

 
 

I64

Repoli-

tories of

the Law.

 

etc ﬁgment of the (31137

Order by this King than his Predeceﬂ'ors‘
left it to him, f0 in a very great Meafure
it has continued the fame in all fucceeding
Ages to this Day, fo that the Mark o‘r
Epoclm we are to take for the true Stating
of the Law of England, what it 18, is to ba
conﬁdered, Rated and ei’timated, from
what it was when this King left it. Be«*
fore his Time it was in a great Meafure
rude and unpolilh’d, in comparifon of What
it was after his Redutlion thereof; and on
the other Side, as it was thus polifhed and
ordered by him, f0 has it ﬂood hitherto
withOUt any great or conﬁderable Alterati-
on, abating fom‘e few Additions and Altera-
tions which fucceeding Times have made,
which for the melt part arein the fubjeéi:
Matter of the Laws themfelves, and not f0
much in the Rules, Methods,- or Ways of
its Adminiﬁration.

As I before obferved fome of thofe ma-a
my great Acceﬂions to the Perfeétion of
the Law under this King, f0 I {hall now
obferv‘e fome of thofe Boxes or Repoﬁtories
where they may be found, which are of the
following Kinds, viz.

Firj}, The Acts of Parliament in the
Time of this Kingr are full of excellent
Wifdom and Perfpicuity, yet Brevity; but
of this, enough before is find.

Secondly, TheJudicial Records in the Time
of this King. I {hall not mention thofe of
the C/mmery, the Clofe-Patent and Charter
Rolls, which yet will very much eyidenlce

7 tie
Chi." Qtummuu mm of England.

the Learning and Judgment of that Time ;
but I {hall mention the Rolls of Judicial
Proceedings, efpecially thofe in the King’s-
Bencb and Common-Flew, and in the Eyrer.
I have read over many of them, and do
generally oblerve -.

I. That they are written in an excellent
Hand.

2. That the Pleading is very ﬂ’lOI‘t, but
very clear and perfpicuous, and neither loofe
or uncertain, nor perplexing the Matter
either with Impropriety, Obfcurity, or Mul-
tiplicity of Words: They are clearly and
orderly dieﬁed, effectually reprefenting
the Buﬁne sthat they intend.

3. That the Title and the Reafon of the
Law upon which they proceed (which many
times is exprefly delivered upon the Record
it felf) is perfpicuous, clear and rational;
(0 that their fhort and pithy Pleadings and
Judgments do far better render the Senie
of the Buﬁnefs, and the Reafons thereof,
than thofe long, intricate, perplexed, and
formal Pleadings, that oftentimes of late
are unneceﬁarily ufed.

T/Jirdly, The {Sports of the Terms and
Years of this King’s Time, a. few hrvken
Cafes whereof are in Fitz/Jrrr’itrt’s Abridg—
ment; but we have no fuccellive Terms or
Years thereof, but only ancient Manufcripts
perchance, nor running through the wnole
Time of this King, yet they are very good,
but very brief: Either the Judges then lpoke
lefs, or the Reporters were not {0 ready
handed a: to take all they faid. And honed

M 3 Eli-l“

 
 

I66

@bz {inﬂow at the Chi‘

this Brevity makes them‘the more obfcure.
But yet in thofe brief Interlocutions between
the judge and the Pleader‘s, and in their
Deﬁnitions, there appears a great deal oﬁ
Learning and Judgment. Some of thofe
Reports, tho’ broken, yet the bei’c of their.
Kind, are in Lincolm-Inn Library. 25mm, if
tbofe Rater/rt: are not now Puéliﬂied. '.

Family, The Traéts written or colleét-
ed in the Time of this wife and excellent
Prince, which feem to be of Two Kinds,
rvino. fuch as were only the Tracﬁates of pri:
Vate Men, and therefore had no greater
Authority than private Collec’tions,yet con;-
tain much of the Law then in Ufe, as Flem
the 'Mitror, Britton and Thurman; Or elfe
241], They were Sums or Abﬁraéts 'ol’
forne particular Parts of the Law, as Nome
Narration“, Hengam Magmz é“ Pure/a, Cadit
aﬂzfd Summa, De Baﬂard‘ia Summa; by all
which, compared even with Braﬁon, there
appears a GrOWth and a Perfeé’ting of the
gnaw into a greater Regularity and Or:

er.

And thus much {hall ferve for the feveral
Periods or Growth of the Common Law’
untill the Time of E51222. I. incluﬁv’ely;
wherein having been fomewhat prolix, I
ﬂiall be the briefer in what~ follows, efpe;
cially feeing that from this Time doWn-
Wards, the Books and Reports printed
give a full Account of the enfuing Progreﬁ
Of the Law. ' ' ‘

CHAR
Ch. 8. Grumman Item of England; 157

 

C H A P. VIII.

A Brief Contimmtim of the Progreﬂ of the
Law, from the Time of King Edward II.
inclufive, down to tbeﬂa Timer.

HAvingin the former Chapter been fomei
what large in Difcourﬁng of the Pro-
greis of the Laws, and the incidental Addi-
tions they received in the feveral Reigns of
King William II. King Hm. I. King Stepben,
King Hen. 11. King Ric/yard I. King “job”,
King Hen. III. and King Ezlw. I. I ihall
now proceed to give a brief Account of the
Progrefs thereof in the Time of Edw. II.
and the fucceeding Reigns, down to theft:
Times. ‘

Edward II. fucceeding his Father, tho’ he K- M H»
was an Unfortunate Prince, and by reafon
of the Troubles and Unevennefs of his
Reign, the very Law it felf had many In-
terruptions, yet it held its Current ina great
Meafure according to that Frame and State
that his Father had left it in.

Beﬁdes the Records of Judicial Proceed—
ings in his Time, many whereof are ﬂill
extant, there were 1me other Things that
occurr’d in his Reign which give us fome
kind of Indication of the State and Con“
dition of the Law during that Reign: As,

I\ i 4. H13},

 
 

168

it

K- Ed. III.

' @1me of the Ch. 8.:

Firﬂ, The Statutes made in his Time;
and efpecially . that of 17 E. 2. ﬁiled De
Prerogativa Regz'a‘, Which tho’ it be called a
Statute, yet for the molt-part is but a Sum
or Collection of certain of the King’s Pre~
rogatives that were known Law long before;
as for lnﬂance, The King’s Wardfhip of
Lands in Capite attracting the Wardfhip of
Lands held of Others; The King’s Grant of a
Manor not carrying an Advowfon Appen-
dant ’unlefs named; The King’s Title to the
Efeheat of the Lands of the Normans, which
was in Ufe from the ﬁrl’t Defeétion of Nor-
’maml] under King 70/972 5 The King’s Title
to Wreck, Royal Fifh, Treafure Trove,
and many others, which were ancient Pre-
rogatives to the Crown.

Secondly, The Reports of the Years and.
Terms of this King’s Reign; thefe are not
printed in any one entire Volume, or in any
Series or Order of Time, only fome broken
Cafes thereof _ in Fitzberber’s Abridgment,
and in fome Other Books difperfedly, yet
there are manyentire Copies thereof abroad
very exellently reported, wherein are many
Refolutions agreeing with thofe ofEdw. L’s
Time. " he belt Copy of thefe Reports
that I know now extant, is that in Lincoln:—
Inn Library, which gives a fair Specimen of
the Learning of the Pleaders and Judges of
that Time. @4713 If Maynard’s E4222. II.
war not printed from that Cop].

King Eda». III. fucceeded his Father; his
Reign was long, and under it the Law was
improved to the greateﬁ Height.T he Judge:

' ’ ” ‘ ‘ an
Ch. .8- Qtnmman lain of England.

and Pleaders were very learned; The Plead. ..

ings are fomewhat more polifhedtthan thofe
in the Time of Edw. 1. yet they have neither
Uncertainty, l’rolixity, nor Obfcnrity. They
were plain and skilful, and in the Rules of
LawJ efpecially in relation to real Actionslb
and Titles of Inheritance, very learned and
excellently poliﬂied , and exceeded thofe
of the Time of Edy). I. So that at the latter,
End of this King’s Reign the Laws feemed
to be near its .Merz'diw.

The Reports of this King’s Time run
from the Beginning to the End of his
Reign, excepting fome few Years between
the 10th and 17th,'and 30th and 23d Years:
of his Reign; but thofe Omitted Years are
extant in many Hands in old Manufcripts.
And Quartz, I/tbe] are not all printed 2'71 May-
nard’s Edw. HI.

' The Boole of Aﬂizes is a Collection of-
the Aﬂizes that happened in the Time of
E11222. III. being from the Beginning to the.
End extraéted out of the Books and Allizes
of thofe that attended the Aﬂizes in the“
Country.

T he ’f u/Zice: Izimnmt continued by intermitg
ting Viciliitudes till about the 4th of Edw.;.
and fome till the 10th of E5122). 3. TheirJu—
rifdiétion exte .ded to Pleas of the Crown;
or Criminal Caufes, Civil Suits and Pleas 06.
Liberties, and ,ng [Varrmzto’sg the Reports
thereof are not printed, but are in many
Hands in iV/ianufcript) borh ofthe Times of
Ezlw. I. E/Zw. ii. and E51222. 111. full of excel—
ent Learning. Some few broken Reports of
" ' ' - thofe

1.6.9

 
175 the winery of the Ch. 8.;
thofe Eyres, efpecially of Commall, Notting-
lmm, Northampton,and Derby, are 0011615th by
Fitzberlzert in his Abridgment.

', After the 10th of Edw. III. I do not ﬁnd
anyJul’tiices Errant m1 Communia Placim, but
only ml Placim Forqhe; other Things that
concerned thofe jar/lice: Itinerant were fup-
plied and tranfaéted in the Common Bench,

a for Communia placim, in the King’s-Bench and
Excbeguer for Placim ale Libertatilam, and be-
fore Juﬁices of Allize, Nzﬁ prim, 0 er and
Terminer, and Goal Delivery for A tfes and
Pleas of the Crown.

And thus much for the Law in the Time
of Edw. III.

8.1156511. Richard II. fucceeding his Grandfather,
the Dignity of the Law, together with the
Honour of the Kingdom, by reafon of the‘
Weaknefs of this Prince, and the Difﬁculties
occurring in his Government, feem’d fome-
what to decline, as may appear by com-
paring the Twelve laﬁ: Years of Ed»). III,
commonly called Qaadragefms, with the Re-
ports of King Ric/yard II. wherein appears a
viﬁble Declination of the Learning and
Depth of the Judges and Pleaders.

‘ It is true, we have no printed continued
Report of this King’s Reign; but Ihave
feen the entire Years and Terms thereof in
a Manufcript, out of which, or fome other
Copy thereof, I fuppofe Fitzbcrlaerr abﬁraé’c—
ed thofe broken Cafes of this Reign in his
Abridgment. ' ' ~
‘ In

 
Ch. 8. QEﬂmmUtt mm of England.

In all thofe former Times, efpecially from

the End of E4222. 111. back to the Beginning
of Erin). I. the Learning of the Common
Law conﬂl‘ted principally in Ailizes and real
Actions; and rarely was any Title dermined
in any perfonal Ad‘tion, unlefé in Cafes of
Titles to Rents, or Services by Replevin;
and the Reafons thereof were principally
thefeJ ruin.
' Firﬂ, Becaufe thefe ancient Times were
great Favourers of the PoiTelTor, and there-
fore if about the Time of Edw. II. a Dif-
feifor had been in Poﬂ'eﬂion by ‘a Year and
a Day, he was nor to be put out without a
Recovery by Aliize. Again, If the Diileifor
had made a Feoanient, they did nor coun-
tenance an Entry upon the Feoffee, becaufe
thereby he might lofe his Warranty, which
he might fave if he were Impleaded in an
Afﬁze or Writ of Entry 3 and by this Means
real Actions were frequent, and alfo Af—
ﬁzea

Secondly , They were willing to quiet
Men’s Polleflions, and therefore after a Re—
covery or Bar in an Allize or real Aétion,
the Party was driven to an Action of a high-
er Nature.

ﬂirt/fly, Becaufe there was then no known
Aéiion wherein a Perfon could recover his
Pollbllion, Other than by an Aﬂize or a
real Action; for till the End of Ed»). IV.
the PolTeflion was nor recovered in an
E jefZione ﬁrmze: but only Damages.

Fem-rial], 'Becaufe an Allize was a fpeedy
and eflet‘mal Rented" to recover a Poﬂ'ef-
" ﬁon,

1.71

 

 
 

I71. @318 biffﬂil’ 0f the (311.8.

ﬁon, the Jury being ready Impannell’d,
and at the Bar the ﬁrl’c Day of the Return.
And altho’ by Dilhfage, the Praétifers of the
Law are nor ('0 ready in it, yet the Courfe
thereof in thofe Times was as ready and
as well known to all ProfeiTors of the Law
as the Courfe of Ejeft‘ione ﬁrmze is now.

K.HmIV. Touching the Reports of the Years and
K. Hm V- Terms of Hen. IV. and Hen. V. I can only
fay, They do not arrive either in the Na-
ture of the Learning contained in them, or
in the Judicioufnefs and Knowledge of the
Judges and Pleaders, nor in any Other Re-
{pee}: arife to the Perfeétion of the lat}
Twelve Years of Edw. III.
K.Hm.VI. But the Times of Hm. VI. as alfo of
K-E‘HV» Edw. IV. E11922. V. and Hen. VII. were
K-dEd'V' Times that abounded with learned and ex-
IngtuVII cellent Men. There is little Odds in the
h ' Ufefulnefs or Learning of thefe Books, on-
I the ﬁrﬂ Part of Hé’n. VI. is more barren,
pending it {elf much in Learning of little
Moment, and now out of Ufe; but the fe-
cond Part is full of excellent Learning.
In the Times of thofeThree Kings, Hen. VI.
E1121}. IV. and Hen. VII. the Learning feems
to be much alike. But thefe two Things
are obfervahle in them, and indeed gene—
rally in all Reports after the Time of
E1122). III. (viz.

:. .Firﬂ, That real Actions and Aﬂizes were
not 10 frequent as formerly, but many
Titles of Land were determined in perfo;

nal
Ch. 8. «Common 1am of England.

nal Aétions; and the Reafons hereof feem
to be,

Iﬂ, Becaufe the Learning of them began
by little and little to be lefs kown or
underl’tood.

2dly, The ancient Striétnefs of preferving
Poffeﬂions to Poﬁeffors till Eviction by
Action began mm to be fo much in Ufe,
unlefs in Cafes of Difcents and Difcontinu-
ances, the latter necelTarily drove the De-
mandant to his Formea’on, or his Cui in Vim,
é'c. But the Defcents that toll’d Entry were
rare, becaufe Men preferved their Rights
to enter, (ﬁle. by continual Claims.

gall], Becaufe the Statute of 8 H. 6. had
helped Men to an Action to recover their
Poffeﬂions by aWrit ofForcible Entry, even
while the Method of Recovery of Polfellions
by Eieétments was not known or ufed.

The Second Thing obfervable is, That
tho’ Pleadings in the Times of thofe Kings
were far fhorter than afterwards, efpecially
after Hen. VIII. yet they were much longer
than in the Time of King E112». Ill. and the
Pleaders, yea and the Judges too, became
fomewhat too curious thereinJ f0 that that
Art or Dexterity of Pleading, which in its
Ufe, Nature and Deﬁgn, was only to render
the Faé’t plain and intelligible, and to bring
the Matter to Judgment with a convenient
Certainty, began to degenerate from its pri-
mitive Sim licity, and the true Ufe and
End thereo , and to become a Pice of Nicety
and Curioﬁty; which how thefe later Times
have improved, the. Length of the Pleada
ings‘, the many and unneceﬂhsy Repetitiona,

tie

I73

We

 

 
 

174:

me hiring? of the ‘ Ch. '85-;

the many Mifcarriages of Caufes upon fma‘ll~
and trivial Niceties in Pleading, have too
much witneﬂ‘ed‘.

I ihould now fay fomething touching the
Times ﬁnce Hen. VII. to this Day, and
therefore {hall conclude this Chapter with
fome general Obfervations touching the
Proceedings of Law in thefe later Times.

And Firﬂ I fhall begin where I left be—
fore, touching the Length and Nicety of
Pleadings, which at this Day far exceeds
nOt only that fhort yet perfpicuous Courfe,
of Pleading which was in the Time of
Hen. VI. Edw. IV. and Hen. VII. but thofe
of all Times Whatfoever, as our vaﬂ PreiTes
of Parchment for any one Plea do abun~
dantly witnefs.

And the Reafons thereof feem to he
thefe, viz.

Firff, Becaufe in ancient Times the Plead-
ings were drawn at the Bar, and the Ex—
ceptions (alfo) taken at the Bar, which
were rarely taken for the Pleafure or Cu-
rioﬁty of the Pleader, but only when it
was apparent thatthe Omifﬁon or the Mat-‘-
ter excepted to was for the moi’c part the
ver Merit and Life of the Caufe, and pur-
po ely omitted or mifpleaded becaufe his
Matter or Caufe would hear no better: But
now the Pleadings being ﬁrﬁ drawn in‘
Writing, are drawn to an exceffive Length,
and with very much Labouroufnefs and
Care enlarged, left it might afford an Ex:
ception not intended by the Pleader, and

I which
Ch. 8. crewman mm of England.

which could be eaﬁly fupplied from the
Truth of the Cafe, Ieﬁ: the other Party
ihould catch that Advantage which com-
monly the adverfe Party ﬁudies, nor in
Contemplation of the Merits or Juﬁice of
the Caufe, but to ﬁnd a Slip to faf’ten upon,
tho’ in Truth, either nor material to the
Merits of the Plea, or at leaﬂE not to the
Merits of the Caufe, if the Plea were in
all Things conform to it.

Secondly, Becaufe thofe Parts of Pleading
which in ancient Times might perhaps be
material, but at this Time are become only
mere Styles and Forms, are ﬂill continued
with much Religion, and fo all thofe anci—
ent Forms at ﬁrl’t introduced for Conveni-
ence, but now not neccffary, or it may be
antiquated as to their Ufe, are yet continued
as Things wonderfully material, tho’ they
only fwell the Bulk, but contribute nOthing
to the Weight of the Plea.

T [gird] , Thefe Pleas being mof’tly drawn

by Clerks, who are paid for Entries and»

Copies thereof, the larger the Pleadings are,
the more Profits come to them, and the
dearer the Clerk’s Place is, the dearer he
makes the Client pay.

Foam/.21], An Overforwardnefs in Courts
to give Countenance to frivolous Excepti-
ons, tho’ they make nothing to the true
Merits of the Cauie ,- whereby it often hap.
pens that Caufes are not determined accor.
ding to their Merits, but do often mifcarry
for inconﬁderable Omifiions in Pleading.

But

’17;

.em a —::

. V nah," i :5 ‘
r?» réllr'J '§_1‘.“'J;"b Jia'ef; .vi 25") —

.1 ‘

Ci»

‘1‘."

will
l r,‘
I

 
 

 

176'

2.

@be miauzy of :32 . (211.8:
' But, Secondly, Ifhall conﬁder what is the
Reafon that in the Time of Edw. I.’ one
Term contained not above two or three
Hundred Rolls, but at this Day one Term
Contains two Thoufand Rolls or more.
, The Reafons whereof may be thefe, viz”

1]}, Many petty Buﬁneﬂ'es, as Trefpaf—
fes and Debts under 40 3. are now brought to
Weffminﬂer, which ufed to be difpatched in
the County or Hundred Courts; and yet the
Plaintiffs are not to be blamed, becaufe at
this Day thofe Inferior Courts are fo ill
ﬁerved, andJuﬁice there f0 ill adminiﬂred,
that they were better feel: it (where it may
be had) at, Weﬂmin/ler, tho’ at fomewhat
more Expence.

2‘11], Multitudes of Attornies praétiﬁng
in the Great Courts at Wrﬂmz‘n/fer, who are
ready at every Market to gratiﬁe the Spleen,
Spight or Pride, of every Plaintiff.

‘ gall], A great Encreafe of People in this
Kingdom above what they were anciently,
which muﬁ needs multiply Suits.

4%], A great Encreale of Trade and
Trading Perfons, above what there were
in ancient Times, which mull have the like
Efl'eét. ' ‘

grisly, Multitudes of new Laws, bOth Penal
and Others, all which breed new Queftions,
and new Suits at Law, and in particular,
the Statute touching the deviﬁng of Lands,
mm mulfzk alien

(SM/y, Multiplication of Aéticns upon
the Cafe, wgiich were rare formerly, and

4 thereby
my. 8. crewman 1am at England.

thereby Wager of Law ouﬁed, which dill
couraged many Suits: For when Men were
fure, that in cafe they relied upon a bare
. Contract without Specialty, the other Party
might wage his Law, they would not ref’t
upon fuch Contracts without reducing the
Debt into .a Specialty, if it Were of any
Value, which created m‘uCh Certainty, and
a-‘c‘eorded many Suits.

And herewith I {hall conclude this Chap-
ter, ﬂiewing what Progrefs the Law has
made, from the Reign of King E4715. I. down
to thefe Times.

N CHAP;

’77

 
 

 

178

Ireland.

   

. (the letting? of an Ch. g;

 

C HAP. IX.

Concerning the jéttling of the Common Law
of England in Ireland and Wales:
And ﬁnite Obﬁrwtiom touching the Ijler
of Man, Jerfey and Guernfey, 2%.

THE Kingdom of Ifelaml being con--
quered by Hen. II. about the Year I I715
He in his great Council at Oxm, conﬁitu-
ted his younger Son, 701m, King thereof,
who profecuted that Conquei’t {0 fully, that
he introduced the Engliﬂ: Laws into that
Kingdom, and fwore all the great Men
there to the Obfervarion of the fame, which
Laws were, after the Deceafe of King 7067:,
again reinforc’d by the Writ of King Hen. III.
reciting that of King j‘olm, Rot. Clauf.
10 H. 3. 114277225. 8, 0’ Io. Viola @942, (2"
P7371. 25‘2, 25;, (5?.

And becaufe the Laws of England were
not fo fuddenly known there, Writs from
Time to Time iifued from hence,containing
divers Capitzzizz Legum Angliae, and command-
ing their Obfervation in Ireland, as Rot. Parl.
n H. 3. the Law concerning Tenancy by
Curtefy, Rot. Clauﬁ 20 H. 3. Memb. ;. Dmfc}.
The Law concerning the Preference of the
Son born after Marriage, to the Son born
of the fame Woman before Marriage, or.
34/de Gig": (9“ Mali” ptiiﬁzc, Rot. Clam]:

20 H.
612.9. Qtnmmun Rain of England.
30 H. 3. Memb. 4. in Dorfo: SO the Law
concerning all the Parceners inheriting with.
out doing Homage, and feveral Tranfmif-
ﬁons of the like Nature. ..:

, For tho> King Hen.;II. had done as muCh
to introduCe the Englzﬂ: Laws there, as the
Nature of the Inhabitants or the Circum—
ﬁances of the Times would permit; yet
partly for want of Sheriffs, that Kingdom
being then not divided into Counties, and
partly by reafon of the Inﬂability of the
Iriﬂi, he could not fully effeét his Deﬁgn:
And therefore, King 701m, to fupply thofe
Defeats as far as he was able, divided
Leinﬂer and Mun/fer into the feveral Coun—
ties of Dubiin, Kiwi/Ira, Meat/J, Uriel, Catero
Jpgb, Kilﬁenny, Wexfm'd, {Miter-ford, Cori},
Limerick, Tiperarj', and Kerry; and appointed
Sheriffs and other Ofﬁcers to govern ’emT
after the Manner of England 5 and, likewife
taufed an Abﬁraé’t of the Engliﬂ) Laws un—
der his Great Seal to be tranﬁnitted thither,
and depoﬁted in the Exchequer-at Dublin:
And foon after, in an Iriﬂs Parliament, by a
general Confent, anddat the Inﬁance of the
Iriﬂy, he ordain’d, That the Engiifly Laws
and Cultorris f‘nould thence'fort‘h be obferved
in Irelaml,.and in order to it, he fen't his
judges thither, and ereeted Courts of judi-
Carure at Dublin, ‘ , ’

_ But notwithﬁandingthefe Precautions of
King 701m, yet for that the Brelmn Law,
and orherIrz'fh Cuﬁoms, gave more of Power
to the great Men, and yet did not reﬁrairi
the Common PeOple to fo ﬁriét and regular

.1!

N2 a

i7?

V1.28 4th .
1119:. 149';

 
 

I80

1'. Inl‘t.
:41.

 

me wage at the (321.5:

a Difcipline as the Laws of"England did.
Therefore the very Englifh themfelves be-
came corrupted by them, and the Engliﬂ:
Laws foon became of little Ufe or Eﬂeem,
and were look’d upon by the Iriﬂa and the
degenerate Englijb as a Yoke of Bondage;
fo that King Hen. III. wag oftentimes necef-
ﬁtated to revive ’em, and by feveral fuc~
cellive Writs to enjoin the Obfervation of
them. And in the Eleventh Year of his
Reign he fen: the following Writ, viz"
N. B. T/Jek l/Vrit is curtail’d b] My Lord Cook.

Henricm Rex, (‘21:. Barmibm Militibm 6'
alizlt olibere Yimemilm: Lagenice, falm‘em, é‘c.
81117:? at credimm rueﬂra aurlivit difcretio, quad
cum [Jame Memorize jobennes, quondam Rex
Anglia: Pater Nojier verzir in Hiberniam, ipﬁ
duxit fecum rviro: difcreros é“ Legze peritos, qua-
rum C ommuni C onﬁlio, 6" m! i n/iantiam Hibernia:-
ﬂum Statuit (9' preecepit Leger Anglicanae teneri
in Hibernia, ita quad Leger eafdem in ﬁriptie
rearing/t: reliquit ulz ﬁgillo ﬂea ad Seaccar.
Dublin. Cum igimr Corr/iretudo @‘ Lex Anglia:
ﬁierit, quad ﬂ aliqmlt deffonj'iz'verit aliguam Mu-
lierem, five Vidmzm jive alien; beereditatem Im—
bmtem, (9' ipfe poﬂmorlum ex ea prolem ﬂefe‘ita-
writ, eujm clamor audirm firerir infra quatuor
pariete: idem Vir [i fuperruixerit ipﬁzm uxorem
ﬁlam, liabelzit tom 'vitzz ﬁre Cir/iodiam Heeredita-
m uxaris ﬁne, licet ea forte lméuerit Heerezlem
(le primo wire ﬂea qui ﬁrerit Planet aerate} “0051;:
Mandamus injungentes quatenm in loguela‘ quee
eﬂ in Curie; Willi. Com. Marefe. inter Mauritian;
Fitz, Gerald Petent. (9‘ Gelfridum ale Mari/20»-

7“-
Ch. 9.. 60111111011 Lab: of England.

juﬂiciarium no/lmm Hibernia: tenentem, we! in
alia Loquela queefuerit in Caﬁe preediffo flu/lo

mode Tin/firth»: in contrnr’ facere preefnmntix.
ﬂ.) YEﬁe Rege apml Weﬁm. 10 De-
cemb. Anna I 1° Regm' No/lri.

And Note, In the fame Year anOther Writ
was fen: to the Lord Jui’tice, Commanding
him to aid the Epifcopal Excommunica-
tions in Ireland with the Secular Arm, as in
England was ufed.

And about this Time, Hubert ele Burgo}
the Claief gin/nee of England, and Earl of
Kent, was made Earl of Connangbt, and
Lord Juﬁice of Ireland during Life 5 and be»
caufe he could nor. Perfonally attend, he on
March the 10th, 1227. appointed Richard 46
Burgo to be his Deputy, or Lord Juﬁice,

to whom the King lent the following.

Writ :

Rex dileﬁo (9' ﬁdeli ﬁlo Ricbardo (13 Burgo
ju/h'ciario ﬁlo Hibernia? falutem. Mandamus
7101714} rmiter Pm’cipientes, quatenu: certo the 65}
loco féiatn wenire comm 710171}, Arcbiepifcopo:
Epi/copo: AHMtc: Priores Comite: é‘ Barcne:
Milite: é‘ libero: Tenente: é“ Halli-w: Singnlomm
Comitamnm, C‘J'comm m publice legi faciatb‘
Cbm'lzzm Domini yolmnmk Regin- Patri: no/fri
Cm' ﬁgillum ﬁmm appenfnm eﬂ, quamﬁeri fecit,
(5" jnmri a Magnaribm Hibernia? ale Legiéze: (9"
confnetndinilm: Avg/0mm Oz'gfervdmlzk in Hiber~
7254, (9' Pa'afcipiati: m ex parte noﬂm, qnod‘Lege:
ill/I; ~" con/nemelim; in Cbezrm pm’dit‘hz conten-
143 de cerez’o ﬁrmiter tenmnt 0' oleftrmnr. E:

N f; 170::

181.

 
 

38»

we fpiitogy of the Ch, 9:.

bee idem per ﬁngulos Comitetm Hiéernize clamari
ﬂzcio‘lm, C9 teﬁeri Fro/Jibent’e: ﬁrmiter ex parte
no no: é’ ﬁrisﬁzéi‘urrim nee/ham, ne quis comm
be: Adenddmm noﬂ'mm, tvem're prev/amen E0
ex'cepto quad mo (16 M’orte wee ale tantalize bibemena
ﬁnm oeci/erum nibilﬂzzmemr ex parte noﬂm elem
guindeeim die: a Sunfh' Mic/Jade's, Anne Kegni
Noﬂri, 11". Super qua refpeﬂum dedimm Mag-
”at. nofz'ri a’e Hie. nﬂjue ad Termimmz pnedifl'.
72/36 A/Ieipﬁ) aprm’ We ”of. 8° die Wig Anna
Regni Ifoﬂri, 152.". ' ‘ 7" l “

And about the 29th Year of: Hen. III. fe—
veral Writs were [cut into Ireland) efpecially
direéting feveral Statutes which had "been
made in England to be put in Ufe, and tq
be obferved in Ireland,- as “the Statute of:
Merton in the. Cafe 0f Baﬂardy, (15w.

But yet it feems by the frequent Grants
that were made afterwards to7particulat"
Native Iriﬂi ; den, (Quad [cgz'z’yzge nmntnr “Angle;
mm‘s, That the Native Ml}; had not the full
Priviledge of the Englifn Laws, in relation
at halt to the Liberties of Engiz'f/J Men,‘ till
about the Third OfEdw. III. Vide Rot. Chef,
2 E. ;. Memb. 17.’ '

As the Common Law of England was thus,
by King 709” and Hen III. introduced into
Ireland, f0 in the Tenth of Hen. VU. all thé
precedent Statutes of Eﬂglnmel were there
fettled by the Parliament of freZamf. ’Tis‘
true, many ancient Irzﬂ: Cuﬁoms continued;
in Ireland; and do continue there even unto
this Day 5 but Inch as are contrary to the
" ' " ’ ” Laws
Ch. 9. Grumman 11am of England.

Laws of England are difallowed, Vizle Davis’s
Reports, the Cafe of Tamﬁr].

As touching Wales, That was not always
the Feudal Territory of the Kingdom of
England; but having been long governed by
a Prince of their own, there were very
many Laws and Cuﬁoms ufed in Waler,
Utterly ﬁrange to the Laws of England,
the Principal whereof they attribute to
their King Howeil D/m.

After King Ed»). I. had fubdued Wales,
and brought it immediately under his Do-
minion; He ﬁrﬁ made a ﬁrie’t lnquiﬁtion,
touching the Welﬂa Laws within their feveral
Commoter and Seigniorer, which Inquiﬁtions
are yet of Record: After which, in the
12th of Ed»). I. the Statute of Rznl.znd was
made, whereby the Adminil’rrarion of Ju~
Rice in Wézlc: was fettled in a Method
very near to the Rule of the Law of Eng—
land. The Preamble of the laid Statute is
notable, rule.

Edward”: .Dei gmria Rex Anglize Dominan-
Hi/Jernizc 6‘" Dux Ace/ziranm omnibm Fideliém
[:4er 516 Term fun (16 Snadon é“ 116 412‘er te’rrzr ﬁnk
in [Milli/z Saginaw in Domino. Di-w'na provi-
deﬂria Cumin ﬁn! Dijgvoﬂtione non ﬁrllirzrr, inter
alias ﬁne Di/pmnz'iomk'Mnnem, quibm no: é‘
Regmmz 710/757er Anglia." decorari digmzm 6/},
Termm {Va/[ix mm incolzlr fair prim 72053 jm‘i
Fwa’m’i ﬁtbjeéfam, mm ﬁ/zi gratin in prqpriermzlr
720/1174: Domininm, ohﬂacztlzi‘ quibnﬁunqne ceﬂnn-
Iibw, tom/irer (37' mm integrimre 6071057727, 6‘)“

N 4. Caro-

18;

Walt}.

 
 

I 84

The 1/7:

4‘ A
.3. Jim

Btrwiré.

'jtrﬁy,
Guernﬁ],
6m. .

We ironing-p of the (3h. 9..

COV0”2(C Regm' pnedz'f-fi mmum Partem corporit
(ya/(fem annexuit a} unit/it. Nos, (/76.

Aecording to the Method in that Statute
preliribed, has the Method of Juﬁice been
hitherto adminiﬁred in Wales, with fuch Al‘-
terations and Additions therein as have
been made by the feveral fubfequent Statutes

of 27 and 34. H.8. 67¢.

Touching the Iﬂe ofMan. This was fome-
times Parcel of the Kingdom of Norway,
and governed by particular Laws and Cu-
f’toms of their own, tho’ many of them hold
Proportion> or bear lbme Analogy, to the
Laws of England, and probably were at ﬁrf’c
and originally derived from hence; feeing
the Kingdom of .Norway as well as the Iﬂe
of 17mm have anciently been in Subjeétiou
to the Crown of England. Vida Leger Willi.
Primi, in Lumbar-4’s Saxon Laws. 1

Berwick was fometimes Parcel of Scotland,
but was won by Co‘nqueﬂ by King Edw. I.
and after that loft by King E4222. II. and
afterwards regained by Edi». III. It'was
governed by the Laws of Scotlan'rl,’ and their
own particular CUﬁoms, and‘not according
to the Rules of the Common Law of Eng.-

. land, further than as by C'ul’tom it is there

admitted, as in Liber Parliament}, it E. i.
in the, Cafe Of Alayne'and Bartlemew; pro
Date in Berwick; yet now by Charter, they
fend Burgeffes to the Parliament of Eng-

land. ' ' ' ' ‘1
Touching the Iﬂandx of 76%], Guernﬁf ,
Sark,’ and Alderman They were anei'erit‘ly
. , _ a
Ch. 9. Qtummun 1am Of England.

a Part of the Dutchy of Normandy, and in
that Right, the Kings of England held them
till the Time of King 701m; but although
King Sta/an, as is before ihewn, was unjuﬁly
deprived of that Dutchy, yet he kept the
glands; and when after that, they were by
Force taken from him, he by the like Force
regained them, and they have ever ﬁnce
continued in the PolTeﬁion of the Crown
of England.

As to their Laws,they are not governed by '

the Laws of England, but by the Laws and
Cuﬂoms of Normandy. But not as they are at
this Day; for ﬁnce the aétual Diviﬁon and
Separation of thofe Ijlnnds from that Dutehy.
there have been feveral New Ediéts and
Laws made by the Kings of France which
have much altered the old Law of INTorman/{J‘t’
which Edié’ts and Laws bind nor in thole
Mandy, they having been ever ﬁnce King
ﬁlm’s Time at leai’t under the aétual Allea
giance of England

And hence it is,-thnt tho’ there be late Cork
leétions of the laws and Cuﬁomg of Nor--
mnna’], as Terrier-and iome others, yet they
are not of any Authority in thole glands;
for the Deciﬁon ol' Controverlies, as the
Grand Coulemier of Normandy is, which is:
(at leaf} in the gremeﬁ‘ part thereof) a C01-
leé’tion of the laws of Normandy ab they
ﬂood before the Disioining of thoie Mann's

from the Dutch}, tit... before the Time of?

King Hm. In: tho‘ there be in that COL
lt‘t‘tion fome iidit‘ts or the Kings of Francs.
which were made after that Disiutié‘tion;

and

 
 

186

 

/ ere mung? at the Ch.9.

and’thofe Laws, as I have ihewn before, tho’
in forne Things they agree with the Laws
of Eriglcmd, yet in many Things they differ,
and in fome are abfolutely repugnant.

And hence it is, that regularly Suits ariﬁng
in thofe Iﬂamls are nor to be tried or deter—
mined in the King’s Courts in England, but
are to be heard, tried, and determined in
thofe Ijlanals, either before the ordinary
Courts of 7mm: there, or by the ffujiices
Itinmmt there , commifiioned under the
Great Seal of England, to determine Mat-
ters there ariﬁng; and the Reafon is, be-
caufe their Courfe of Proceedings, and their
Laws, differ from the Courfe of Proceed-
ings and the Laws of England.

And altho’ it be true; that in ancient
Times, ﬁnce the Lofs of Normandy, fome
{battering lnf’tances are of Pleas moved here
touching Things done in thofe glandx, yet-
the general fettled Rule has been toremit
them to thol'e Iﬂandr, to be tried and de-
termined there by their Law; tho’ at this.
Day the Courts at Mﬂminfier hold Plea of
all tranﬁtory Ac‘lions wherefoever they arife,
for it cannoc appear upon the Record where
they did arife.

Mic. 42 E. 2. Kat. 45'. comm Rage, Agreat
Complaint was made by Petition, againﬁ
the Deputy Governor of thofe Iﬂamls, for
divers Oppreliions and Wrongs done there : ,
This Petition was by the Chancellor deli‘.
vered into the Court of B. R. to proceed
upon it, whereupon there were Pleadings
on both Sides 5 but becaufe it appeared to

be
Ch. 9. QEumman tam of England.

be for Things done and tranfaéted in the
faid glands, Judgment was thus given: Et
quia Negotiam outﬁt? in Curia bzic terminari
7:972 pareﬂ; eo quorljzurarore: 111/qu Pmedzﬁ" comm
yu/tiﬂwiir bio mnire non poﬂz'mt nec ale 71476
dcbem, Nee atiqua Negotia infra Inﬁda Pug-diff“
emergentz’g termimri mm :16le m'ﬁ fecundum
Con 1m. Inﬁdae Prediffte. Idea Recorzlym retro
tradimr Camellario u: indc ﬁat Commiﬂio Domini
Regi: an! Negotia pr‘erliila in Inﬁda pmdiffa
amliemlzz é‘ Terminanda fecemdum Ccmﬂret. In-
ﬁdm pma’iéhe. ,

, And accordingly 14 funii, tg6g. upon
a Report from the Attorney General, and
Advice with the two Chief Jultices, a ge-
neral Direétion was given by the Queen
and her Council, That all Suits between
the Iﬂamlcrs, or wherein one Party was an
[/Yzzmler, for Matters ari-ﬁng within the Ijlaxds,
lhould be there heard and determined.

But ﬁill this is to be taken with this
Diﬁirre’tion and Limitation, viz. That
where the Suit is immediately for the King,
there the King may make his Suit in any
of the Courts here, efpecially in the ﬂour:
of Kings—Bencb : For Inﬁence, in a gym
Impedit' brought by the King in B. R. here
fOt a Church in thofe Iflamt‘r; ft) in a ﬁlm:
{Varnmro for Liberties there; f0 21 Demand
of Redemption of Lands fold by the king‘s
Tenant within a Year and eBay aceorditzg
to the Cuf‘tom of Normamév; f0 in an Irr-
formation for a Rior, or grand Contempt
againlt 3 Governor deputed by the King;
Theft: and the like Suits have been main»
’ ' mined»

 
 

188

 

@132 inning? of the Ch. 9;

tained by the King in his Court of King’s-
Bench here, tho’ for Matters ariﬁng within
thofe glands: This appears, Pafc/m 16 E. 2;
comm Rege, Rot. 82; ‘Mz'cb. 18 E. 2. Rot. 12;,
1'24, 125'. é‘Pu/I IE. 3. Rot. 79.

And for the fame Reafon it is, that aWrit
of Habw: Corpus lies into thofe Iﬂaml: for one
Imprifoned there, for the King may de-4
mand, and muff have an Account of the
Caufe of any of his Subjeéts Lofs of Liber-
ty; and therefore a Return muﬁ be made
of this Writ, to give the Court an Account of
the Caufe of Imprifonment 5 for no Liberty,
whether of a County Palatine, or Other, holds
Place againﬁ thofe Bre'via Mandatoria, as that:
great lnﬁance of puniﬂting the Bithp of
Durham for refuﬁng to execute aWrit 0F
ifﬁti’l’df Corpm out Ofthe King’s—Bench, 3; E. I.
makes evident.

And as Pleas ariﬁng in the [ﬂaw]: regu.
Early, ought not in the ﬁrﬁ Inﬁance to be
deduced into the Courts here, (except in
King’s Cafe5) f0 neither ought they to be
deduced into the King’s Courts here in the
{econd Inﬁance; and therefore if a Sen-
tence or Judgment be given in the [ﬂaming
the Party grieved thereby, may have his
Appeal to the King and his Council to
reverfe the fame if there be Caufe.
And this was the Courfe of Relief in the
Dutchy of Normandy, 7252.. by Appeal to
the Duke and his Council; and in the fame
Manner, it is ﬂill obferved in the Cafe
of erroneous Decrees or Sentences in thofe
{/1472ng rviz. To Appeal to the King and his
Council. But
Ch. 9; . Qtomt't‘tuu mm of England.

But the Errors in fuch Decrees or Sen-
tences are not examined by Writ of Er-
ror in the King’s-Bench, for thefe Reafons,
'vzz. :

Iﬂ', Becaufe the Courts there, and thofe
here, go not by thefame Rule, Method,
or Order of Law: .

And zdly, Becaufe thofe Iﬂandx, though
they are Parcel of the Dominion of the
Crown of England, yet they are nor Parcel
of the Realm of England, nor indeed ever
were; but were anciently Parcel of the
Dutchy of Normandy, and are thofe Re~
mains thereof which the Power of the
Crown and Kingdom of France have noc
lice; able to wreft from the Kingsof Eng-
an .

Whoever deﬁres to know further, touch-
ing the Hiﬁory, Laws, Cuﬁoms, Religion,
and Priviledges of thefe Iﬂana's, may perufe
the Traét, entitled An Account of the 1/7: of
j‘erﬁy, written by Mr. Philip Falle, and pub-
lifhed in the Year, 1694.

C H A PA

189

 
 

'~ «:stggwittagghf toe 6M3?

 

CRAP, X.

Concerning tbe Comatnni'catian of the Lab:
of -‘ England unto the Kingdom of
Sectland.

E‘caafe this Inquiry will be of Ufe;
not only in it felt", but. alfo as a Pal:
rallel Difcovery of the Tranfmifﬁ‘on of the
Englh’h Laws into Scotland, as before is {hewn
they—we're into Normandy; Ifhal‘l in this
Chapter :purfue and folve thefe fe’ve'ra’t Que;
ties, 'w'z. ‘ , _- .
xﬂ, What Laws of Scotland hold a Con-
gruity and Suitabl-enefé with thofe of
England. , V3 - '
21]},- Whether thefe be a fufﬁcient Ground
for us to fuppofe, that that Similitude or
Congruity began with a Conformation of
their Laws to thofe of England. And,
ga’ly, What might be reafonably judged
to be the Means or Reafon of the Confor-
mation of their Laws unto the Laws of
England.

As to the Firﬁ‘ of thefe Inquiries; It is’
plain, beyond all Contradiéition, that many
of the Laws of Scotland hoid a Congruity
and Similitude, and many of them a perfect
Identity with the Laws of England, at leaﬂ:

V as
Ch. 10. drumman lain of England.

as the Englzﬂi Laws ﬂood in the Times of
He». II. Ric/yard I. King 70/2», Henry III. and
Erin). I. And altho' in Scotland, Ufc hath
always been made of the Civil Law,in point
of Direction or Guidance, where their Mu-
nicipal Laws, either Cufiomary or Parlia-
mentary failed,- yet as to their particular
Maz‘iicipal Laws, we {hall ﬁnd a Refem-
blaziee3 Parity and Identity, in their Laws
wizh the Laws of England, ancientlyl in

UL»,- , and we need go no further for Evi-
dCiiCt: hereof, than the Regiam Majefldz‘em,

a Book publifhed by Mr. Skew in Scatland.
It would be too long to Inﬁance in all the
Point: that might be produced; and there-
fore Ifhall ﬁngle out fome few, remitting
the Reader for his further Satisfac'tion to
the Book it felf.

Dower of the Wife to‘be the Third
Part of her Husband’s Lands of Inheritance;
the Writ to recover the fame; the Means of
Forfeiting thereof by Treafon or Felony of
the Husband, or Adultery of the Wife;
are in great Meafure conformable to the
(“Laws of England. Viale Regiam Majeﬂatem,
Lib. 2. cap. 16, I7. and Qaniam Attachin-
memo, cap. 8;.

The Excluﬁon of the Defcent to the elder
Brother by his receiving Homage, which tho’
now antiquated in England, was anciently
received here for Law, as appears by Glan-
tyiﬂe, Lib. 7. cap. I. and Vide Regiam Majt~
ﬁatem, Lib. 2. cap. 22. .

The Excluﬁon of Daughters from Inhe.
ritanees by a Son: The Defcent to all~ the

Daugh-

19f

 
 

:9:

eye hiring? of the Ch. to“;
Daughters in Coparcenary for want of Sons 5

the chief Houfe allorted to the eldef’t Daugh~
ter upon this Partition; the Defcent to the

Collateral Heirs, for want of Lineal, (91'.

Ibid. cap. 24, 2;, 26, 27, 28, 3;, 34. But this
is now altered in fome Things per Stat.
Rab. cap. 3.

The full Age of Males 2!, of Females 14,
to be out of Ward in Socage t 6. Ibizlaap. 42.
’ That the Cuftody of Idiots belonged to
the King, Mid. cap. 46.

The Cuﬂody of Heirs in Socage belong
to the next of Kin, to whom the Inheri-a
tance can’t defcend. Via’e Regiam Majqﬂ.

way. 47.

The Son born before Marriage, or Ba-
ﬂ‘ard eigne, not to be legitimate by the Mar-
riage after, nor was he hereditable by the
ancient Laws of Scotland, though afterward
altered in Ufe, as it feems, Regiam Majeﬁ.
ca . yr.

The Conﬁfcation of Bomz Uﬁtrariorum,
after their Death, conform to the old
Law here ufed. Ibirl. cap. g4. tho’ now
antiquated.

The Laws of Efcheats, for want of Heirs,
or upon Attainder. 117M. cap. gt. ‘

The Acquital of Lands given in Frank.
Marriage, till the fourth Degree be paf’c,Ibid.
cap. 57.

Homage, the Manner of making it‘ with
the Perlbns, by, or to whom, as in England,
Ibizl. cap. 6!, 62, 63, effc.

The Relief of an Heir in Knights Service,
of full Age, Regiam Majeﬂatem, mp. 17;

. 3 The
Ch. 10. Qtnmmun ﬂaw Of England.

The Preference of the Siﬁer of the whole
Blood, before the Sifter of the half Blood;
oQumz'am, mmbmzemo, cap. 89.

The ﬁngle Value of the Marriage, and
Forfeiture of the double Value, precifely
agree with the Statute of xldarl/ﬁ‘itlge. Mid.
CLIP. 91. .

The Forfeiture of the Lord’s difparagee
ing his Ward in Marriage, agrees with
Magna Charm, and the Statute OfMpzrlbrizlge.
me‘am Attacbiamemo, mp. 92‘.

The Preference of the Lord by Priority
to the Cuf’tody of the Ward. 172M. cap. 9;.

The Punifhment of the Ravifher of a
Ward, by two Years Imprifonment, are.
as here. livid. cap. 90.

The Jurifdiétion of the Lord in Bﬁmg
tbeof. Mid. cap. 100.

Goods Conﬁfcate, and Deodands, as here,
Lilaer De Marlo tenmdz’ Cur. Baron. cap. 62,
6;, 64.

And the like of Waifs. Mid. cap. 6;.
Widows, not to marry without Confent
of the Lord, Statute Méjﬁt’i- 2. cap. 2;.

Wreck Of the Sea, defined precifeiy as in
the Statute War/rm. 2. Vida [biz]. mp. 2;,

The Divition of the Deceafed’s Goods,
one Third to the Wife, another Third to the
Children, and another to the Executor, 59c
conformable to the ancient Law of England,
and the Cuﬂom of the North to this Day.
Lil). 2. cap 37.

Alfo the Proceedings to recover Poifefl
iions, by erlorfclzzmcﬂt'ra jfzzrzlr Utmm. A'ﬂfe (12‘
Now! (1.27 Eli/fry, d-‘t. The Writs and Procefe

O

are

1.93

 
 

I94

2. Immi-
ry.

 

true 119mm of the CE. to;

are much the fame with thofe in England,
and are diret’fted according to Glantvillay and
the old Statutes in the Time of Edi-a: I. and
Hen. III. Vide Regiam Maje/lat. Lib. 33 cap. 27.
to 36.

Many more Inﬂances might be given of
many of the Municipal Laws of Scotland,
either precifely the fame with thofe in
England, or very near, and like to them :
Though it is true,they have fome particular '
Laws that hold not that Conformity to ours,
which were introduced either by Particular
or Common Cuﬁoms, or by Aéts of their
Parliaments. But, by what has been faid
and inﬁanced in, it appears,.That like as
between the Laws of England and, Norman—
dy, fo alfo between the Laws of England
and Scotland, there was anciently a great
Similitude and Likenefs.

I come therefore to the Second Thing I
propos’d to inquire into. viz. what Evi-
dence there is, That thofe LaWS of Scotland
were either defumed from the Engliﬂ: Laws,
or from England, tranfmitted thither in fuch
a manner, as that the Laws here in England
were as it were the Original or prime Ex~
emplar, out of which thofe parallel or limi-
lar Laws of Scotland were copied or tran-
fcribed into the Body of their Laws; and
this appears evident on the following Rea-
fons, 1:22..

F521}, For that Glanville ( which,as has been
obferved, is the ancientel’t Colleétion we
have of Englijh Laws ) feems to be even

tran-
Ch. Id. Grumman mm of England;

tranfcribed in many entire Capim of the
Laws above-mentioned, and in fome Others
where Glanm‘lle doubts, that Book doubts;
and where Glmzvz'lle follows the Practice of
the Laws then in Ufe, tho’ altered in fuc-
yceeding Times, at leaﬁ after the Reign of
E51212. I. there the Regiam Mair/intern does
accordingly 5 for Inﬂance, viz.

Glrznrville, Lib. 7. cap. I. determine, That
a Man can’t ive away part of the Lands
which he helf by Hereditary Defcent unto
his Ballard, without the Confent of his
Heir, and that he may not give all his Pur-
chafes from his eldei’t Son; and this is alfo
declared to be the Law of Scotland accord-
ingly, Regiam Mtge/iatem, L26. 2. cap. 19,
20. Tho’ ﬁnce (Loznrville’s Time, the Law
has been altered in England.

Alfo Glansvi/le, Lib. 7. cap. 1'. .makes a
great Doubt, Whether the {econd Son, be-
ing enfeoffed by the Father, and dies with-
out Iffue; Whether the Land {hall return to
to the Father, or defeend to his eldel’t,
Or to his youngeﬁ Brorher ; and at 121?: gives
fuch a Deciﬁon as we ﬁnd almof’t in the
fame Terms and Words recited in the Que-
:Ption and Decilions laid down in Regiam’
Majeﬂ. L517. 2. cap. 22.

Again, Glam/ﬁle, Lila; 7. cap; 1. makes it
a difﬁcult Queﬂion in‘ his Time, Whether
the eldeﬂ: Son dying in the Life-time of his
Father, having Ilfue, the Nephew or the
youngel’t Son {hall inherit; and gives the
Arguments pro (9' comm; And Regiam Ma-

2 jeﬂﬂnma'

19S

 
 

196

U

@ch {piﬂozy of the Ch. “to;

~fie/351mm, cap. g3. feems to be even a Tran-
fcript thereof out of Glam/ilk.
_ And furtherJ the Trait concerning Af-i
ﬁfes, and the Time of Limitation, the very-
.Form of the Writs, and the Method of the
Procefs, and the Directions touching their
Proceedings are but Tranfcripts of Glan-
ruz'lle, as appears by comparing Regiam Ma-
yieﬂattm, Lila. 3. cap. 36. With Glan‘ville, L271. 13.
mp. 32. and the. Coiiec’tor of thofe Laws of
Scotland in all the before—mentioned Places,
and divers others, Quotes Glrmruille as the Pat—
tern at ieaii of thoie Laws.
But Secondly, A fecond Evidence is, be-
caufe many of the Laws which are men-
tioned in the Regiam Majcﬂatem Qmm‘am
Attacbidmmto, and other Coileé’tions of the
Scotiﬂi Laws, are in Truth very Tranﬂations
of feveral Statutes made in England in the
Times of King Hm. Ill. and Ring E5122). I.
For Ini’tance5 the Statute of their King
Robert 1. cap. 1. touching Alienations to Re-
ligious Men; is nothing elfe but an Enaéting
of the Statute of Morrmain, I; E. I. cap. 1;.
The Law ahovumentioned, touching the
Diibﬁi“3§§©lﬁ€ﬁt of \‘v’ardsJ is defumed out of
[Litgé‘lﬁi 02mm; cap. 6. and the Statute of
1146;767:164, cap. 6, So :he Lawahovefaid, againﬂ
Raviﬂters of ‘x.‘h’:2:zn‘sJ is taken out of Weﬂm. 2.
my). 25'. So the {aid Law of the doubie Va—
lue of Marriage, is taken out of We m. I.
cap 22;. The Law concerning Wreck of the
Sea, is but a Tranﬁctipt out of Weﬂm. I.
mp. 4. and divers Other Enhances of like
Nature might be given, whereby it may
appear,

 
Ch. Io. Qtummau antn Of England. 197

appear, that very many of thofe Laws in'
Scotland which are a part Ol‘thcir Corpuffm'z‘r,
bear a Similitude to the Laws of Englmrl,
and were taken as it were out of thole
Common or Statute I aws here, that ebtain’d
in the Time of Edw. l. and lie/Sore, but
efpecially fuch as were in Ule or Enacted
in the Time of Edw. I. and the Laws of
England, relative to thofe Matters, were as
it were the Original and Exemplar from
whence thofe Similar or Parallel Laws of
Scotland were derived or borrowed.

T may, Icome now to eonﬁdet the Third 3.111031%
Particular, viz. By what Means, or by what r3"-
Reafon this Similitude of Laws in England-

,and Scotland happened, or upon what AC~
count, or how the Laws of Eng‘l’oml at lea‘l’t
in many Particulars, or Cop/fro Ichmn, came
to be communicated unto Scotland, and they
feem to be principally thefe Two, ‘Ulz.
Fir/l, The Vicinity of that Kingdom to this.
And Secondly, The Subieeotion of that King-
dom unto the Kings or” England, at leall‘ for
fome conﬁderable Time.

Touching the former of thefe; Fiifl, It I.
is very well known, that England and Scor-
lnncl made but one Illand, divided not by
the Sea or any conliderable Arm‘thereof,
but only by the Interjacency of the River
Twecd, and lhme Delert Ground, which
did not hinder any ealie common Accelé of
the People of the one kingdom to the
Other: And by this Means, Fir/l, The In—
tercourfe of Commerce between that King~
don't and this was very frequent and ulual,

Q 3 elpecially

 
 

119,8

 

@138 TQiffﬂZl? (if the Chm;

efpecially in the Northern Counties, and this
Intercourfe of Commerce brought unto
thofe of Scotland an Acquaintance and Fami-
liarity with our Eroglz'fl; Laws'and Cuﬁom's,
which in Procefs of Time were adopted
and received gradually into Scotlamo'. '

Again, Secondly, This Vicinity gave of-
ten Opportunities of tranfplanting of Pet-
fons of either Nation into the other, efpe—
cially in thofe Northern Parts, and thereby
the Englijh tranfplanted and carried with
them the Ufe of their Native Cuﬂoms of
.ErokgrlmrclJ and the Scot: tranfplanted hither,
became acquainted with our Cuﬂoms, Which
by occaﬁonal Remigrarions were gradually
tranﬂated and became difhts’d and planted
in Scorlcml ; and it is well known, that upon
this Account ﬂame of the Nobility and great
Men of Scorloozol had Pciihliions here as well
as there : The ENE: ofﬂngw were not only
Noblemen OlTSL‘Oflr-Zﬂazj but were alfo Barons
of Parliament here, and fate in our Euglzﬂ}
Parliaments, as appears by the Summons to‘
Parliament, Tempura Eclwwli Tertli.

Again, nod/y; The Kings of Scotland had
Feodal PoiTellions here; for Inﬁance, The
Counties of Cuméerlxml, Norl'humlaerlczml and
Weﬂmerlcml, were anciently held of the
Crown of Ewghmd by the Kings of Scot—
laml, attended with feveral Viciﬂitudes and
Changes until the Feal’t of St. Michael, 1237.
at which Time Alexander King of Scotland
ﬁnally releafed his Pretenﬁons thereunto, as
appears by the Deed thereof enter’d into
the Red-Book of the Ext/regatta; and the Far-

- liament
Ch. Io. Eammsn tam 8f England.

liament Book of 20 E. I. and in Conﬁdera~
tion thereof, Hen. [IL gave him the Lands
of Penretb and Sonrltyv. Holland) ﬂbi Heredibm
fun Region: Scotioe, and by Vertue of that
Special Limitation, they came to 70/972 the
eldeﬁ Son of the eldeﬁ: Daughter of Alex-
ander King of Scotland, together with that
Kingdom,- but the Land of Tz'ndole, and the
Manor of Hnntz'ngdon, which were likewife
given to him and his Heirs, but without
that Special Limitation, Region; Scotioe, fell
in Coparcenty‘, one Moiety thereof to the
{aid 7olon King of Scotland, as the Iﬂ'ue of
the eldet’t Daughter, and the other Moiety
to Hal/lingo, who was defcended from the
younger Daughter of the faid Alexander:
But thofe Pom-{lions came again to the
Crown of England by the Forfeiture of King
john of Scotland, who through the Favour
of the King of England he had Ref’titution
of the Kingdom of Scotland, yet never had
Reﬂitution of thofe Poffeﬂions he had in
England, and forfeited and loﬁ by his levy-
ing War againﬁ; the Kingdom of England
as aforefaid.

And thus I have fhewn, that the Vici-
nity of the Kingdoms of England and Scot-
land, and the Confeguence thereof, ruin.
Tranflations of Perfons and Families, Inter—
courfe of Trade and Commerce, and Pof-
fefiions obtained by the Natives of each
Kingdom in the Other, might be one
Means for Communicating our Laws to
them, ‘

Q 4 Bus.

199

 
 

200

 

mic ﬂgiftozy of the Ch. to;

But Secondly, There was another Means
far more effectual for that End, win. The
Superiority and Interei’t that the Kings of
England obtain’d over the Crown and King-
dom of Scotland, whereby it is no Wonder
that many of our Engliﬂ: Laws were tranfl
planted thither by the Power of the Engliﬂa
Kings. This Interel’t, Dominion, or Eupe-
riority of the Kings of England in the Realm
of Scotland may be conﬁdeted thefe TWO
ways, viz" Iﬁ, How it flood antecedently
to the Reign ofKing; Ethyl. And 2n’lj, HOW
it ﬂood in his Iime.

Touching the former of thofe, I {hall not;
trouble my {elf with colleéting Arguments
or Authorities relating thereto; he that De-
ﬁres to fee the whole Story thereof, let him
confult Wnlﬂngbnm, fab Anna 18 E6171). I. as
alfo Rot. Perl. 12 R. 2. Parsfecnncln, NO 3.
Rot. Clnnﬂ 29 E. 1. AI. 10. Dar/t3, and the
Letter of the Nobility to the Pope aﬂerting
it. Ilizl.

And this might be one Means, whereby.
the Laws of England in elder Times might
in fome Meaﬁire he introduced into Sta:-
14ml.

But I rather come to the Times of King
E11222. I. who was certainly the greateﬁ: re—
ﬁner of the Englzﬂ; LawsJ and ﬁudiouﬂy
endeavoured to enlarge the Dominions of
of the Crown of England, fo to extend and
propagate the Laws of England into all
Parts fubjeé’t to his Dominion. This Prince,
heft es the ancient Claim he made to the
Superiority of the Crown of England over

\ r...»

Qis’br
€11.10. Qtnmman 31am of England.

that of Scotland,did for many Years actually
enjoy that Superiority in its full Extent,
and the Occaﬁon and Progrefs thereof was
thus, as it is related by lVal/z‘ng/mm, and con—
fonantly to him appears by the Records‘ of
thofe Times, viz. King Ezlw. I. having
formerly received the Homage and Fealty of
Alexander King of Scots, as appears Rat. CIA u];
g E, I. M. 5. Dorfo, was taken to be Supe«
.rior Domino: Scottie Raga}.

Alexander dying, left Margo/Vet his only
Daughter, and ﬁre dying without Iffue,
about 18 E. 1. there fell a Controverlie
touching the Succeflion of the CrOWn of
Scotland, between the King of Norway claim-
ing as Tenant by the Curtefy, Robert (16
Bruce defcended from the younger Daughs
ter of Droid King of Scott, and jolm do
Baltic-l defccnded from the elder Daughter,
with divers Other Competitors.

All the Competitors fubmit their Claim
to the Deciiion of Edy). I. King of Borg/51ml
as Superior 1202;557:5544! Regni Storm, who there-
upon pronounced his Sentence for 70/)" (la
Belle], and accordingly put him in Poiibll
ﬁion ofthe Kingdom, and required on: re-
ceived his I—iomage.

The King of Eirglzmzl, notwithi’mudiug
this, kept iiill the Poﬁ‘eﬂion, d” Ioﬂgzm of
his Superiority; his Court of King's-Iiouc/J
fate actually at Qom’rorong in Scotlznzdwlﬁcb. 2 DJ
21 E5221. 1. mm Rage, and upon Complaint
of iniuries done by the laid Etta/m King of
Start, new rc-{igor’tl to his Kingdom, he fume
moued him often to auﬁs’e‘ in his Courts,

7‘» l' .
rat-suit.

@011

 
 

202

 

one man at the (211.10;

Mich. 21, 22 Edw. I. Nortbumb. Scot. He
was fummoned by the Sheriff of Northam-
berlnnd to anfwer to Wallzefz‘ in the King’s
Coyrt, Pttﬂ 21 E. I. comm Rage, Rot. 34. He
was in like manner fummoned to anfwer
ffobn Mazune in the King’s-Bench for an Injury
done to him, and Judgment given againft
the King of Scott, and that Judgment
executed.

john King of Scott, being not contented
with this Subjeétion, did in the 24th Year
of King Edy/.1. reﬁgn back his Homage
to King Edward, and bade Deﬁance to him;
wherefore King Edw. I. the fame Year with
a powerful Army entred Scotland, took the
King of Scots Prifoner, and the greateﬂ part
of that Kingdom into his Poifellion, and
appointed the Earl Warren to be Cnﬂox Regni,
Greﬂlngbam to be his Treafurer, and Otmsby ‘
his Juﬁice, and commanded his Judges of
his Courts of England to iﬂ'ue the King of
England’s Writs into Scotland.

And when in the 27th Year of his Reign,
the Pope, inﬂigated by the French King, in-
terpos’d in the Behalf of the King of Scotland,
he‘, and his Nobility refolutely denied the
Pope’s Interceﬁion and Mediation.

Thus the Kingdom of Scotland continued

in an aé’tual Subjeé’tion to the Crown of

England for many Years; for Rot. Clonﬂ
33 E. I. Membr. 1;. Dorfo, and Rot. Clam]:
34 E. I. Memo. 3. Dorﬂ); leveral Proviﬁons
are made for the better ordering of the
Government of Scotland.

What
Ch. Io. Qtummun 1am Df England.

What Proceedings there were herein in
the Time of Erin). II. and what Capitulations
and Stipulations were afterwards made by
King E61211. 111. upon the Marriage of his
Sifter by Robert (36 Bruce, touching the Re-
laxation 0f the Superim deiaiwm of Scot-
land, is not pertinent to what I aim at,
which is, to ﬂiew how the Englifh Laws that
were in Ufe and Force in the Time of
Edw. I. obtained to be of Force in Scotland,
which is but this, viz.

King Edward I. having thus obtained the
aétual Superiority of the Crown of Scor-
land, from the beginning of his Reign until
his 20th Year, and then placing 70571 dc
Baliol in that Kingdom, and yet continuing
his Superiority thereof, and keeping his
Courts of Juﬁice, and exerciﬁng Dominion
and Jurifdié’cion by his Ofﬁcers and Mini-
ﬁers in the very Bowels of that Kingdom,
and afterwards upon the Defeétion of this
King 701971, in the 24th of Ed»). I. taking
the whole Kingdom into his actual Admi-
nil’tration, and placing his own Judges and
great Ofﬁcers there, and commanding his
Courts of King’s-Bencb (&c.) here, to Iﬂ‘ue
their Procefs thither, and continuing in the
actual Adminil’rration of the Government
of that Kingdom during Life: It is no
Wonder that thofe Laws which obtained
and were in Ufe in England, in and before
the Time of this King, were in a great
Meafure tranﬂated thither; and poﬂibly
either by being enacted in that Kingdom,
or at leaf; for fo long Time, put in Ufa:

. . i an

2-03

 
 

:04

 

eye ipiﬂazy hf the 011.16;

and Praé‘tice there, many of the Laws in
Ufe and Practice here in England were in
his Time fo rivetted and fettled in that
Kingdom, that ’tis no Wonder to ﬁnd they
were not ﬂiaken or altered by the liberal
Conceﬁions made afterwards by King
Ea’w. III. upon the Marriage of his Sifter;
but that they remain Part of the Municipal
Laws of that Kingdom to this Day.

And that which renders it more evident,

‘ That this was one of the greateli Means of

ﬁxing and continuing the Laws of England
in Scotland, is this, rviz” This very King
Eclw. I. was not only a Martialand Vié’tori-
ous, but alfo a very Wife and Prudent Prince,
and one that very well knew how to ufe a
Viciory, as well as obtain it: And there—
fore knew it was the belt Means of keeping
thofe Dcminions he had powerfully obtain’d,
by liibl‘tituting and tranﬂating his own
Laws into the Kingdom which he had thus
fubdued. Thus he did upon his Conquef’t
of Wales; and doubtlefs thus he did upon his
Conquef’t of Scotland, and thofe Laws which
we ﬁnd there {o nearly agreeing with the
Laws of England ufed in his Time, efpecial-
ly the Statutes of We/lm. I, and Wt: 717. 2. are
the Monuments and Foorl’teps of his Wif-
dom and Prudence.

And, as thus he was a moil Wife Prince,
and to lecure his Acqueﬁs, introduCed ma~
other Laws of his Native Kingdom into
fault-22d; ii) he very well knew the Laws of
Raglan? \zrere exeeiicnt Laws ﬁtted for the
due :‘iLhiziniiiiatiorz of gufiice til) the Cons

I" 0, e
ﬂit-wrinm
t'v.’nv.‘.\, .‘a

I
Ch. to. diamante ﬂat” Of England.

ﬁitution of the Governed, and ﬁtted for the
Prefervation of the Peace of 3. Kingdom,
and for the Security of a Government: And
therefore he was ever folicitous, by all pru-
dent and careful Means imaginable, to graft
and plant the. Laws of England in all Places
Where he might, having before—hand ufed
all pollible Care and induﬁry for Re6tifying
and Reﬁning the Engliﬂ; Laws to their great-
eﬁ Perfection.

Again, It feems very evident, that the
Deﬁgn of King Ella». I. was by all Means
poliible to unite the Kingdom of Scotland
(as he had done the Principality of Wales)
to the Crown of England, fo that thereby
Britain might have been one entire Mo-
narchy, including Scotland as well as Wales
and England under the fame Sceptre; and
in order to the accomplilhing thereof, there
could noc have been a better Means than to
make the lntereﬂ: of Scotland one with Eng~
laml, and to knit ’em as it were together
in one Communion, which could never
have been better done than by ef’tablifhing
one Common Law and Rule of Jul’cice and
Commerce among them; and therefore he
did,as Opportunity and Convenience ferved,
tranflate over to that Kingdom as many of
our Engliﬂ; Cuﬁoms and Laws as within that
Compafs of Time he conveniently could.

And thus I have given an Ei’fay of the
Reafons and Means, how and why we ﬁnd
fo many Laws in Scotland parallel to thofe
in England, and holding f0 much of Con—
gruity and Likeneis to them.

And

20;"

 
 

506

ﬁne 119mm? at the Ch. to;

And the Reafon why we have but few of
their Laws that correfpond with ours of a
later Date than Eh». I. or at leaf’t En’w. II.
is becaufe ﬁnce the Beginning of Edw. III.
that Kingdom has been diﬁinét, and held
little Communion with us till the Union of
the two Crowns in the Perfon of King
3mm: I. ( or rat/yer the happy Union qf the two
Kingdom: under her preﬁnt [Wait/l} ﬁfteen Anne)
and in fo great an Interval it mull needs
be, that by the Intervention and Suc-
cefﬁon of new Laws, much of what was
fo ancient as the Times of Eden. I. and
E422). II. have received many Alterations :
So that it is a great Evidence of the excel- '
lency of our Engliﬂi Laws, that there remain
to this Day f0 many of them in Force in
that Part of Great Britain continuing to bear
Witnefs, that once that excellent Prince
Edy/.1. exercifed Dominion and Jurifdi-
ction there.

And thus far of the Communion of the
Laws of England to Scotland, and of the
Means whereby it was eﬂ’eétedgfrom whence
it may appear, That as in Wales, Ireland and
Normandy, f0 alfo in ScotlandJ fuch Laws
which in thofe Places have a Congruity or
Similitude with the Laws of EnglandJ were
derived from the Laws of England as from
their Fountain and Original, and were
not derived from any of thofe Places to
England.

I C HAP.
Ch.1 I. (Emmott law of England; 3.6?

 

C H A P. XI.
Touching tbe Cour/E of Deﬁent: in
England.

AMong the many Preferences that the Excel-
Laws of England have above others, lcncy of
I {hall ﬁngle out Two particular Titles which our Laws.
are of Common Ufe, wherein their Prefe-
rence is very viﬁble, and the due Conﬁdera-
tion of theirExcellence therein, may give us
a handfome Indication or Specimen of their
Excellencies above other Laws in other
Parts or Titles of the fame alfo.

T hofe Titles, or Capitnln Legnm, which I
fhall ﬁngle out for this Purpofe, are thefe Two In-
Two, rains. I ff, The hereditary Tranfmiﬂion ﬁances.
of Lands from Ancef’tor to Heir, and the
Certainty thereof : And 2511], The Manner
of Trial by Jury, which as it frauds at this
Day fettled in England, together with the
Circumﬂances and Appendixes thereof, is
certainly the beﬁ Manner of Trial in the
World; and I {hall herein give an Account
of the fucceffive Progrefs of thofe Capitula
Legit, and what GrOWth they have had in
Succeﬂion of Time till they arriv’d to that
State and Perfection which they have now
obtain’d.

Firﬂ then touching Defcents and here- Firf’rmf
ditary Tranfmiﬂions ; It feems by the Law; Defcems-

o

 
 

208‘

 

mic {hfffazy at the Ch. I r.

of the Greek: and Rommr, that the fame
Rule was held both in relation to Lands and
Goods, where they were not otherwife dill
poled of by the Ancel’ror, which the Roman:
therefore called Subceﬂio ab inteﬂam; but the
Cuf’toms of particular Countries, and efpe-
cia‘lly here in England, do put a great Dif-
ference, and direct a feveral Method in the
Tranﬁniﬂion of Goods or Chattels, and that
of the Inheritances of Lands.

Now as to hereditary Tranfmifﬁons or
Succeﬂions, commonly called with us De-
12mm. Ilhall hold this Order in my Dif-
courfe, (viz.

Fir/f, Ilhall give forne {hort ACCOunt of
the ancient Laws, both of the “few, the
Greeks, and the Romans, touching this Mat-
ter.

Secondly, I {hall obferve fome Things
wherein it may appear, how the particular
Cul‘toms or hriunicipal Laws of Other Coun—
tries varied from thofe Laws, and the Laws
here formerly ufed. .

Madly, I ihall give fome Account of the
Rules and Laws of Delcents or hereditary
Tranﬁniﬂionsas they formerly ﬂood, and
as at this Day they {hand in England, with
the fuccellive Alterations, that Procefs of
Time, and the Wifdom of our Ancel’tors,
and certain Cuﬁ'oms grown up, tacitely,
gradually , and 1hcceﬂively have made
therein. . .

And Firi’t, touching the Laws of Succef—
ﬁon, as well of Delcent, of Inheritances
of Lands, as allb of Goods and Chattels,

4 which
 

Eh. IL @ommﬂi’t lain of England. 20-9

which among the jaw: was the fame in Among.

borh. the 7m.
Mr. Selden, in his Book De Succeﬂz‘aniém

apud berceor, has given us an eitcellent Ac-

Count, as well out of the holy Text as out

of the Comments of the Ralz’im, or jewiﬂi

Lawyers, touching the fame, Which you

may fee at large in the gth, 6th, 7th, 12th

and 13th Chapters of that Book5and which,t

for fo much thereof as concerns my pre—

fent Purpofe, I fhall brieﬂy eomprife under

the Eight following Heads, wire.

Fir/f, That in the Defcending Line, the
Defcent or Succeflion was to all the Sons,
only the eldel’t Son had a double Portion to
any one of the reft, viz. If there were three
Sons, the Eﬁate was to be divided into four
Parts, of which the eldef’t was to have two
Fourth Parts, and the Other two Sons Were
to have one Fourth Part each. , ,

Secondly, If the Son died in his Father’s
Life-time, "then the Grandfon, and foin I724-
ﬁnitum, fucceeded in the Portion of his Fa-
ther, as if his Father had been in Polfeflion
0f it, according to the 7m Re‘are efafatiomé:
now in Ufe here. . 7

Tbirzlly, The Daughter did not lheceed
in the inheritance of the Father as long as
there were Sons, or any Delberidants from
Sons in being; but if. any of the Sons died
in the Life-time of his Father having Daugha
tersJ but without Sons, the Daughters fun-

eeeded in his Part as if he him‘felf had beem‘
poﬂeﬂed.

:3 Elrfr'rﬂéﬁ

 
 

210

 

we rotting? of the Ch. :1.

Fourtblj, And in cafe the Father left only
Daughters and no Sons, the Daughters
equally fucceeded to their Father as in Co—
partnerﬂiip, without any Prelation or Pre-
ference of the eldel’t Daughter to two Parts,
or a double Portion.

Fiﬁ/21'], But if the Son had purchafed an
Inheritance and died without lirue, leaving
a Father and Brothers, the Inheritance of
fuch Son 1o dying did not defcend to the
Brorhers, (unlefs in cafe of the next Bro-
ther‘s taking to Wife the Deceafed’s Wi—
dow to raile up Children to his deceafed
Brother) but in fuch cafe the Father inhe—
herited to fuch Son entirely.

Sim/21}, But if the Father in that Cafe
was dead, then it came to the Brethers, as
it were as Heirs to the Father, in the fame
Manner as if the Father had been aétually
poﬂhfs’d thereof; and therefore the Father’s
other Sons and their Defeendants in Inﬁni-
tum lucceeded 5 but yet efpecially, and
without any double Portion to the eldef’t,
becaufe tho’ in TrUth the Brothers fucceed-
ed as it were in Right of Reprefentation
from the Father, yet if the Father died be-
fore the Son, the Defeent was de Faél‘o im-
mediately from the BrOther deceafed to the
other Brothers, in which Cafe their Law
gave met a double Portion, and in cafe the
Father had no Sons or Defcendants from.
them, then it defcended to all the Sil’ters.

Savant/sly, If the Son died without lﬂhe,
and his Father or any Defcendants from
him were extant, it went not to the Grand-

father

/
Ch. I I. Grumman 1an Of England. 2.! I

father or his Other Defcendants 5 but if the
Father was dead without Iﬂhe, then it de—
feended to the Grandfather, and if he were
dead, then it went to his Sons and their
Defeendants, and for want of them, then
to his Daughters or their Defcendants, as if
the Grandfather himfelf had been ae‘tually
poffefs’d and had died, and f0 mumri; mu-
tana’zi‘ to the Prom/w, Alma/m, A’rwvm, 85c.
and their Defcendants.

Eight/91y, But the Inheritance of the Son
never refbrted to the Mother, or to any of
her Ancei’tors, but bOth the and they were
totally excluded from the Succeliion.

The double Portion therefore that was The done
3‘th Primngc'nitmue, never took Place but in ble For-
that Perfon that was the Primogmitm of him tion-
from whom the Inheritance immediately
defcended, or him that 1~epreleI1ted him;
as if A. had two Sons, B. and C. and B. the
eldef’t had two Sons, D. and E. and tl en E.
died, whereas B. ﬂiould have had a double
Portion, viz. Two Thirds in cafe he had
furvived his Father; but now this double
Portion {hall be equally divided between
D. and E. and D. {hall not have Two Thirds
of the Two Thirds that defcended from A
to them. Vide Selden, m ﬁqmz.

Thus much of the Laws or Rules touch-
ing Defcents among the 7m.

Among the Graeciam, the Laws ofDefcents Dcfcents
in fome Sort refemble thofe of the jimsﬁmong .
and in fome Things they differed. Videi‘zc Gm“
Petit’: Leges Attica, Cap. 1. Tit. 6. De 213,111,» ’5‘

1’ 2. mantis

 
 

112

 

me Ipiffuzy or the Ch. :1.

mental (9' Hereditario j’ure, Where the Text
of their Law runs thus, rviz.

0mm: legitimi Filiz' Heredimtem Paternam
ex aequo inter fe Haerifcunto, ﬂ 7141': inteﬂatm‘
moritur relic‘iis' Filiabm qm’ my in Uxore: durum“
lowredesﬂmto, ﬂ nullae ﬁtperﬂnt, bi a]? inn/late
b¢rezlitatem cermmto : Er prime quidem Fratre:
defunc‘h' Garment", é’ legitimi Fratrum Filii ha:-
rea’itatemﬁmwl adezmto 5 ﬂ millz' Fratre: ant Fm-
tmm Filii ﬁtpeifz'nt, ii: geniti eadem Lege [here-
dimtem cermnto: [llafmli autem i155 geniti etiam
ﬁ remorim‘ cognatiom's [int Grazia, praﬁmntar, “
fi mt/[i fuperﬁnt, Paterni proximz', ml foérinorum
:tfgue Filior, Materni defunﬂi propingui ﬁmik‘
che Hereditatem admnto; [i e mum: augm-
tione [Elgar/int intm deﬁnitum Gradum proximm
cognatw Paternm, addito Notbo Notba'veg fupero
ﬂire Legitima Film Not/m: Hmealitatem Farm
m adito.

This Law is veryr obfeure, but the Senfe
thereof feems to be brieﬂy this,'zziz.. That all
the Sons equally {hall inherit to the Father ;
but if he have no Sons, then the Husbands
of the Daughters; and if he have no Chil-
dren‘, then his Brorhers and their Children 5
and if none, then his nexr Kindred on the
Part of his Father, prefering the Males be‘
fore the Females ;' and if none of the Pa-
ther’s Line, ad Sobrinorum ufque Filior, then
to defeend to the Mother’s Line. Vid’e
Petit’: Gle: thereon. -

“ But wirhall Refpeét to the Memory of
“ this great good ManJ I ihall verture to

“‘ tranﬂate
Ch. 11. qtnmmau tam of England.

(C

(t
u
‘C

‘3:

a
cc
{c
cc
‘7‘
cc
(C

a
n

tranﬂate this Law, whereby it will ap~
pear, what the true Senfe and Mean.-
ing thereof is, and that it is not (0 dif-
ﬁcult or obfcure as our Author has re-
prefented it.

“ All the lawful Sons {hall inherit their
Father’s Eﬂate, to be e ually divided be.
tween them : If any Per on dies Intel’tate,
leaving only Daughters, their Husbands
{hall be his Heirs; but if none of the
Daughters be living, they (i. e. the Huf-
bands) ﬂiall not inherit to the Intel’tate:
But then in the ﬁrﬁ: Place, the Brothers
of the whole Blood, and fuch Brothers
Children, {hall inherit together, ( i. c. the
Children, jure rcpreﬁmatz'omr) and ifthere
are no Brothers or Brorhers Children
living, then their Defeendants (if they
leave any) ﬁiall inherit by the fame Law
of equal Diﬁribution, yet ﬂill the Males

‘ and their Del'cendants, tho’ of the more

remore Degree of Kindred, are to be pre-
ferr’d, but if none of the Father’s Blood
be living, of any nearer Degree than
that of Father’s Brother’s Children, then
the Inheritance {hall defcend to thole of
the Morher’s Blood,having a like Regard
to the Law of Dil’cributions, and the
Mother’s Brother’s Children; but if none
of either Line within the Degrees before
fpeciﬁed be living, then it {hall defcend
to any ofthe Father’s Blood tho’ an illegi-
timate Son or Daughter5butifalegitimate
Daughter were living, no Ballard {hall

3 ‘" fucceed

at;

 
 

2.14

Defcems
a mung
the R0-
mam.

 

@112 11mm or the Ch. u;

“ fucceed in the Inheritance of the Father,
“ Vialé Petit’: G/cf} in 1mm Legem.

Among the Roman: it appears, that the
Laws of Succeliions or DilCents did fuccef—
lively varyJ for the Laws of the Twelve
Tables did exclude the Females from inhe-

\ r'iting, and had many other Streightnelfes

I .
Defccnd-
ing Line.

and Hardfhips which were fuccelllvely re—
medied: Firll', by the Emperor Claudim,
and after him by Adrian, in his Swarm: Con?-
ﬁsllw ﬂr'fzrllimmr, and after him by yuﬂiniam
in his Third Infiltutes, '17:. De Harreclimtilu:
grant) (3:17 lair/3am (laferzmtur, and the TWO en-
ﬁring Titles. And again, all this was fur-
ther explained and lettled by the Novel
Conﬂitutions of the faid Fu/linian, ﬁiled
the Alstbenrica: Novellce,‘ cap. 18. De Haeredim-
ﬁlm; m’a late/lam rverzierztibm (fr agmzlomm Fare
ﬁlllmo. r"l‘herefore omitting the large Inquiry
into the fucceﬁiye Changes of the Roman
Law in this particular, I {hall only fet down
how, according to that Conﬁitution, the
Roman Law ﬁands fettled therein.

Defcents or Succefﬁons from any Perfon
are of‘Three Kinds: rw'z. Ijl, In time Defam-
(ling Live. 24]], The Afcmzling Line. gall], The
Collateral Line; and this latter is either in
Adgmztor 4 Part? Patrir, or in Cogmtas a Part:
114M725. V I l l ‘

I. In the Defomding Lint, Theft: Rules are by
the Roman Law di‘reéted,‘ 'viz.
' I.‘ The Defcending Line, (whether Male

‘ or Female, whether immediate or remote)

takes Placeyand prevents the Defcent 'or
~.-;,.“ 1, c7 ,3 «‘> A,' 1 _ M ' , , SuC-
Ch. I 1. Grumman lain of England.

Succelﬁon Afcending or Collateral in in-
ﬁnitttm.

2. The remore Defcents of the Defcen-
ding Line fucceed in Stirpem, i. e. in that
Right which his Parent fhould have had.

3. This Defcent or Succeﬂion is equal in
all the Daughters, all the Sons, and all the

Sons and Daughters, without preferring the

~Male before the Female 5 f0 that if the com-
mon Anceﬁor had three Sons and three
Daughters, each of them had a ﬁxth Part;
and if one of them had died in the Life
of the Father, having three Sons and three
Daughters, the ﬁxrh Part that belonged to
that Party {hould have been divided equally
between his or her ﬁx Children, and f0 in
inﬁnirum in the Defccnding Line.

II. In tbe Afcena’ing Line, there are thefe
two Rules, viz.

I- If the Son dies without Iffue, or any
defcending from him, having a Father and
a Mother living, both of them {hall equally
fucceed to the Son, and prevent all others
Of the Collateral Line except Brothers and
Siﬁers, and if only a Father, or only a Mo-
ther, he or fhe {hall fucceed alone.

2. But if the Deceafed leaves a Father and
a Mother, with a Brother and a Sifter, ex
utrifque Parentilzm confunfh’, they all Four
fhall equally lucceed to the Son by equal
Parts Without Preference of the Males.

III. In the Collateral Line, ( i. e. Where the
Perfon dies Without Father or Morher,
I’ 4 Son

215

2.
Afcend-

ing Line.

32.
Collateral
Line.

 
 

2.16

mm inning? of the Ch. 1 g;

Son or Daughter, or any defcending from
them in the Right Line) the Rules are
thefe, wire;

I. The Brothers and Sifters, ex utrifque
Parentibu: cohjum‘l‘i, and the immediate Chil—
dren of them, {hall fucceed equally without
Preference of either Sex, and the Children
from them {hall fucceed in ﬂirpes; as if there
be a Brother and Sifter, and the Sifter dies
in the Life of the Defcendant leaving one
Or more Children, all fuch Children {hall
fucceed in the Moiety that lhould‘ have come
to their deceafed Morher, had {he furvived.

2. But if there be no BrOthers or :Siﬂers,
ex atrifque Parentibw canjunfli, nor any of their
immediate Children, then the Brethers and
Sifters of the half Blood and their imme;
diate Children {hall fucceed in Stirpe: to the
Deceafed without any Prerogative to the
Male. ‘ '

3. But if there be no Brothers or Sifters
of the whole or half Blood, nor any of
their immediate Children (for the Grand-

children are not provided for by the Law)

then the 1163;: Kindred are called to the In.”
heritance. '

I (But 17} our ﬂat/bar’s Leave, I thin}: the Gram}.
children are impiiea’rjl prowidedfbr, a: they ﬁtt—
ceed their Faber or [Mother Jure reprefenta-
tionis.) i ' 7

4. And if the next Kindred be in an equal
Degree, whether on the Part of the Father
as ﬂa'gnati, or on the Part of the Mother
31,5 Cognatg', then they are equally called to
" " ‘ ‘ ' the
€11.13. Qtommnn 1am of England. "2:; i

the Inheritance, and fucceeded in Cepfm,
and not in Stirper. '

Thus far of the fettled Laws of the few,

Greeks, and Romans, but the Particular or
Municipal Laws and Cuﬁoms of almoﬂ:
every Country derogate from thofe Laws,
and direé’c Succeﬁions in a much different
Way. For Inﬁance.

By the Cuﬁoms of Lombardy, according Laws of-
to which the Rules of the Feuds, both in Loméﬂrdze
their Defcents and in other Things, are
much direé’ced 5 their Decents are in a much
different Manner, viz“

Leger Feudarum, Lib. I. Tit. I. If a Feud Of Feuds.
be granted to one Brother who dies without
Iffue, it defcends not to his other Brother
unlefs it be fpecially provided for in the ﬁrf’t
Infeudation: If the Donee dies, having
Iffue Sons and Daughters, it defcends only
to the Sons; whereas by the Roman Law it
defeends to both: The BrOther fucceeds
nor to the BrOther unlefs fpecially provided
for, (9' L’zz'el. Tit. go. The Afeendants fuc—
eeed not, but only the Defeendants, nei—
ther does a Daughter fucceed m’ﬁ ex Paflo,

‘uel niﬂ ﬁt Feodum meimum.

If we come nearer Home to the Laws ochl‘cengs
Norman/I], Lands there are of Two Kinds,in Nor-
rtu'z. Partible, and not Partible; the Lands ’"m‘df’ﬁ
that are partible, are Valvafories, Burgages,
and fueh like, which are much of the Na—
ture of our Socage Lands; thefe defeend
to all the Sons, or to all the Daughters:

Lands not partible, are Piefs and Dignities,
' they

 
 

 

2.18

 

are i‘piftugy Inf the Ch. n;

they defeend to the eldeﬁ Son, and not
to all the' Sons; but if there be no Sons,
then to all the Daughters, and become
partible.

The Rules and Direétions of their De—
fcents are as follow, ‘Zlizg.

I. For want of Sons or Nephews, it
defcends to the Daughters, if there be no
Sons or Daughters, or Defcendants from
them, it goes to Brorhers, and for want of
Brorhers, to Sifters, (obferving as before
the Difference between Lands partible and
not partible) and accordingly the Defcent
runs to the Poﬂerity of Brothers to the
feventh Degree 3 and if there be no Bro-
thers nor Siﬂers, nor any Defcendants from
them within the feventh Degree, it defcends
to the Father, and if the Father be dead,
then to the Uncles and Aunts and their Po-
ﬁerity, (as above is faid in the Cafe of Bro.
thers and Sifters) and if there be none, then
to the Grandfather.

So that according to their Law, the Fa-
ther is poﬂ med to the Brother and Sifter,
and their Blues, but is preferred before the
Uncle: Tho’ according to the jewiﬂ: Law,
the Father is preferred before the Brother;
by the Roman Law, he fucceeds together
equally with the Brother; but by the Engliﬂ;
Law, the Father cannot take from his Son
by an immediate Defcent, éut may take a:
Heir to In} Brat/yer, who 21245 Heir to (72': Son by
90114167211 DefemL

2. If
Ch. 11. Grumman mm of England.

2. If Lands defeended from the Part of
the Father, they could never refort by a
Defcent to the Line of the Mother; but in
cafe of Purchafes by the Son who died
Without Iffue, for want of Heirs of the Part
of the Father, it defcended to the Heirs of
the Part of the Morher according to the
Law of England.

3 The Son of the eldeﬂ Son dying in the
Life of the Father, is preferred before a
younger Son furviving his Father as the
Law l’rands here now fettled, tho’ it had
fome Interruption, 4 jobanna‘r.

4. On Equality of Degrees in Collateral
Deﬁem‘r, the Male Line is preferred before
the Female.

5'. Altho’ by the Civil Law, Fratres es:
zn‘roque Parente conjum‘i‘i przefertmtm' Fratrilvw
confanguinez‘a tantum rvel uterine; yet it fhould
feem by the Coutumier of Normandy, Fratres
con/hnguimi 6i ex (30ch Patre fed diverfa Maire,
{hall take by Defcent together with the
Brothers, ex utrogne confszt'i, upon the Death
of any fuch Brothers. But Q4427? hereof,
for this feems a Mil’take 5 for, as I take it,
the half Blood hinders the Defcent between
BrOthers and Sifters by their Laws as well
as ours.

6. Leprofy was amongﬂ: them an Im-
pediment of Succeﬂion, but then it feems
it ought to be firll folemnly adjudged ft) by
the Sentence of the Church.

Upon all this, and much more that might:
be obferved upon the Cuf’toms of feveral
Countries, it appears, That the Rule; of

. u,“

2.19

 
 

Dcfccnts
in Eng-
1434.

Among
the Wel/b.
Statute
12 Ed. I.

we tertiary of the Ch. 1 r.‘

Succeﬂions, or hereditary Tranfmiﬂions,
have been various in feveral Countries ac-
cording to their various Laws, Cuf’toms,
and Ufages.

And now,after this brief Survey of the Lam
and Cuﬁoms of other Countries, I come
to the Laws and Ufages of England in re-
lation to Defcents, and the Growth that
thofe Cuf’coms fucceﬂively have had, and
whereunto they are now arrived.

Fir/i, Touching hereditary Succeﬂions:
It feems, that according to the ancient
Britiﬂi Laws, the eldeﬂ: Son inherited their
Earldoms and Baronies; for they had great
Dignities and Jurifdié’tions annex’d to them,
and were in Nature of Principalities, but
that their ordinary Freeholds defcended to
all their Sons; and this Cuf’tom they carried
with them into Wale: whither they were
driven. This appears by Statutum Waﬂi¢,
12 E. 1. and which runs thus, rw'z.

Aliter uﬁtatum eff {n Wallizz gum” in Anglia
guoadSuccqﬂionem bwredz’mtisg to gated berea’itar.
partiéili: eﬂ inter bafft’tl‘é’! Mrzfculos, (9* a tampon
cujm non extiterit 1140720744 [7477177313 extitit,
Damixm Rex 72m vault grind cenﬁtetudo i114 abro—

gemr,‘ feel quad [Jzereditater remaneam partibiler

mter canﬁmiler beret!“ ﬁrm: ejfe C074 uevtrrmt;
d7“ ﬁat partitio illim ﬂout ﬁeri 6071/1467)”. Hoc
excepto quad Bzz/t'arrli mm babeam‘ dc ccetem,
r’amrea’imter é’ criam quad mn babe/mt pimp/tries,
tum Iz'gitimir me ﬁne legitimir.

\X’her'ea
Ch. I I. Qtummuu mm Of England.

Whereupon Three Things are obferva-
ble, viz. 1/}, That at this Time the here-
ditary Succeliion of the eldeii Son was then
known to be the common and ufual Law in
England. 2dly, That the Succefﬁoh of all the
Sons was the ancient cuﬁomary Law among
the Britin in Walex, which by this Statute
was continued to them. gall , That before
this Time , Baﬁards were admitted to
inherit in Wales as well as the Legitimate
Children, which Cuﬁom is thereby abro—
gated; and although we have but few Evi-
dences touching the Britzﬂ; Laws before
their Expulﬁon hence into Wales, yet this
Ulage in Wales feems fuﬂiciently to evi-
dence this to have been the ancient Britiﬂa
Law.

Secondly, As to the Times of the Saxon:
and Danes, their Laws colleéted by Brampton
and Mr. Laméart, fpeak not much concern-
ing the Courfe of Defcents; yet it feems
that commonly Defcents of their ordinary
Lands at leaft, except Baronies and Royal
Inheritances,defcended alfo to all the Sons :
For amongﬁ the Laws of King Canutm, in
Mr. Lamlmrd is this Law, ryz‘z. No 68. Sim
gmﬁr incuria five Marta repemz'na fuerit inteﬂm‘o
mortum, Dominm tamen nullam rerum ﬁmmm
Partcm (pi‘ceter eam gum jm'e debetur Hereoti
mmine) Sibi aﬂitmito. Vemm my judicio ﬁlo
Uxori, Liberis @- cogmztz'me proximi; juﬂe (pro
fuo cuiguejure} diﬂ‘ribuito.

Upon which Law, we may obferve thefe
ﬁve Things, (viz).

1/2‘, That

2 $4

 
 

€232

€112 ilpiffagp of the Ch. I I:

Iji‘, That the ‘Wife had a Share, as well
of the Lands for her Dower, as of the
Goods.

2:11}, That in reference to hereditary
Sneceﬂions, there then feem’d to be little
Difference betWeen Landsﬂand Goods, for
this Law makes no Diﬁiné’tion‘. ‘ .

gdly, That there was a kind of ferried
Right of Suéceﬂion, with reference to Proxi—
mity and Remorenefs of Blood, or Kin, Er
cognatione proximi: profuo cuigue jure.

4tlaly, That in reference to Children, they
all feem’d to fucceed alike, without any
Diﬁiné’tion between Males and Females.

ftbly, Thatyet the Ancel’tor might difpofe
of by his Will as well Lands as Goods,
which Ufage feems to have obtained here
unto the Time of Hm. II. as will appear
hereafter. Vials Clan-ville.

ﬁnally, It feems that, until the Conquef’r,
the Defcent of Lands was at leal’t to all the
Sons alike, and for ought appears to all the
Daughters alfo, and that there was no Dif~
ference in the hereditary Tranfmiﬂion of
Lands and Goods, at leaf: in reference to
the Children: This appears by the Laws
of King Edward the Confeﬂbr, conﬁrm’d by
King William I. and recited in Mr. Lamlmrt,
Folio 167. as alfo by Mr. Selden in his Notes
upon Eadmemr, viz. Lege 36 Tit. De [me/la-
tomm B07218; Pag. 184. Si 7m; imaﬂmm olzierit
Liberi ejur Hzereclimtem centrality divident.

But this equal Diviﬁon of Inheritances
among all the Children was found to be
very inconvenient : .For,

3 Iﬁ, It
Ch. I i. crewman 1am Of England.

Iﬂ, It weakened the Strength of the
Kingdom, for by frequent parcelling and
fubdividing of Inheritances, in Procels of
Time they became fo divided and crumbled,
that there were few Perfons of able Eﬁ'ates
left to undergo publick Charges and Of-
ﬁces.

2511], It did by Degrees bring the Inha-
bitants to a low kind of Country living,
and Families were broken; and the younger
’Sons, which had they not had thofe little
Parcels of Land to apply themfelves to,
would have betaken themfelves to Trades,
or to Civil or Military, or Eccleﬁaf’tical
Employments, neglecting thofe Opportu-
nities, wholly apply’d themfelves to thofe
fmall Divilions of Lands, whereby they
negleé’ted the Opportunities of greater Ad-
vantage of enriching themfelves and the
Kingdom. ‘

And therefore King William I. having by
his Accellion to the Crown gotten into his
Hands the Poifeliions and Demeafns of the
Crown, and alfo very many and great Pof-
feﬂions of thofe that oppos’d him, or ad—
hered to Harold, difpofed of thofe Lands or
great Part of them to his Countrymen, and
Others that adhered to him, and referved
certain honorary Tenures, either by Baron—
age, or in Knights-Service or Grand Set--
jeancy, for the Defence of the Kingdom,
and pollibly allo, even at the Delire of
many of the Owners, changed their for-
mer Tenures into Knights-Service, which
Introdué’tion of new Tenureswas neverthef—

le 5

223

 
 

524

me ipiftagp of the Ch. It:
lefs not done without Confent of Parliament ;
as appears by the additional Laws before
mentioned, that King Mllz‘am made by‘Ad-
vice of Parliament, mentioned by Mr. Selden
in his Notes on Eadmerm, Page 191. amongﬂ:
which this was one, @223.

Statuz‘mm etiam (T ﬁrmiter pnecipimm ut
0mm: Comite: Barones Milites (9‘ Serrviente: &‘
«nicer/2‘ liber’z‘ Homine: totim Regni noﬂri babezmt
é’ teneant ﬁt femper in Armi: ('9' in Equ at
decet 6‘ oportet, é’ quad [int ﬁmper prompti é“
bene paratz’ ad Ser‘vitium ﬁtum integrum nobi:
explendendum 0‘ pemgendum, cum ﬁmper 0pm
fuerit fecundum quad nobi; de Feoda'r ale/amt (9‘
tenentur Tenementir fm': de fare facere &- firm
illzk flamimw per Commune Concilium totim Regni
mﬂrz‘, El“ 5111;: dedimm @‘canceﬂimm in Peoria
ffure baereditario.‘

Whereby it appears, that there Were TWO
Kinds of Military Proviﬁons; one that was
fet upon all Preeholds by common Confent
of Parliament, and which was ufually called
Aﬂzfa Armomm; and another that was Con;-
ventional and by Tenure, upon the Infeu-
dation of the Tenant, and which was ufual~
ly called K’Izigbfs Serr‘vice , and fometimes
Royal, fometimes Foreign Service, and
fometimes Servitium Loricm.

And hence it came to pafs, that not only
by the Culloms of Normandy, but alfo ac.
cording to the Cul’toms of Other Countries,
thofe honorary Fees, or Infeudations, be-
came defcendible to the Eldeﬁ, and not tCi

A al

I
6311. II. Qtummuu mm of England.

all the Males. And hence alfo it is, that in
Kent, where the Cuﬁom of all the Males
taking by Defcen’t generally prevails, and
that pretend a Conceﬂion of all their Cu-
ﬁoms by the Conqueror, to obtain a Sub-
miﬂion to his Government, according to
that Romantick Story of their Moving Wood :
But even in Kent it fell, thofe ancient Te-
nements or Fees that are there held an—
ciently by Knights Service, are defcendible
to the Eldeﬁ Son, as Mr. Lamlmnl has ob—
ferved to my Hands in his Pemméulation,
Page 5’33, ”3. out of 9H. 3. Fitz. Pre-
fcrz’ptz’an 6 3. 26 H. 8.5. and the Statute of
31 H. 8. cap. 3. And yet even in Kent, if
Gavelkind Lands efcheat, or come to the
Crown by Attainder- or Diffolution of
Monaﬂeries, and be granted to be held by
Knights Service, or per Baroniam, the Cu-
ﬂomary Defcent is not changed, neither
can it be but by Aét of Parliament, for
it is a Cui’tom ﬁx’d to the Land.

But thofe honorary Infeudations made
in ancient Times, efpecially fhortly after
the Conqueﬂ, did ﬁlently and fuddenly
affume the Rule of Defcents to the Eldei’t,
and accordingly held it, and f0 altho’ pof.
ﬁbly there were no Ae‘ts of Parliament of
thofe Elder Times, at leaﬂ: none that are
now known of, for altering the ancient
Courfe of Defcents from all the Sons to the
Eldeﬁ, yet the Ufe of the Neighbouring
Country might introduce the fame Ufage
here as to thofe honorary Poﬁeﬂ’ions.

Q And

22.;

 
 

7.26

FM: Ante.
Chap 7.
and Lam-
511711, at:
ﬁrﬁrﬂ.

 

tithe ipt‘ftnzy of we Ch. m

And becaufe thofe honorary lnfeudations
were many, and fcattered almoﬁ through
all the Kingdom, in a little Time they in-
troduced a Parity in the Succeiiion of Lands
of Other Tenures, as Socages, Valvafo—
ties, (3‘s. So that without Queﬁion, by lit-
tle and little, almoﬁ generally in all Coun-
ties of England (except Kent, who were
moi’t tenacious of their old Cuﬁoms in
which they gloried‘, and fome particular
Feuds and Places where a contrary Ufage
prevailed), the generalty of Defcents or
Succeﬂions, by little and little, as well of
Socage Lands as Knights Service, went to
the eldei’t’ Son, according to the Declara—
tion of King Edw. l. in the Statute of
Wales above-mentioned, as will more fully
appear by what follows. ‘,

In the Time of Hm. I. as we ﬁnd by his
70th Law, it feems that the whole Land
did not defcend to the eld’eﬂ Son, but be—'
gun to look a little that Way, ruiz. Primnm
Pan-i: Fen/124m, p’rimogenitm Filim babeat. Ami
as to Collateral Deﬁems, that Law deter—
mins thus: Si qua"; ﬁne Liberal: deceﬂérit Pater
amt [Water 8.7"” in baw'erlz'tatem fuccedat fuel
Frater rue! Soror ﬂ Pater 0’ [Mater deﬂnt, [2' net
Z705, babeat Saror Farm 7183 Adatrz's, (’9‘ deinceps
in m'ntum genicnlum; qai cum propinquiore:
in partnttlczﬁnt berezlitnria {we fuccedant; (9‘
Jam Virilis fexm extftm't 53“ bct’reditw ab ind:
fir, anima non bxet'edgiremr.

Bv

J
Ch. 1r. Qfﬂﬂlﬁimt ﬂair] of England.

By this Law it feems to appear;

_, 1. The chief: Son, tho’ he had 7m prime-
genitum, the principal Fee of his Father’s
Land,.yet he had nor all the Land.

2. That for want of Children, the Father
or Morher inherited before the BtOther or
Sifter- ‘ .

3. That for want of Children, and Fa—I

ther, Mother, Brorher, and Sifter, the Land
defcended to the Uncles and Aunts to the
ﬁfth Generation. \
ﬂ 4. That in Succeﬂions Collateral, Proﬁ-
t’nity of Blood was preferred. .
. ;. That the Male was preferred before
the Female, 2'. e. The Father’s Line was pre-
ferred before the Morher’s, unlefs the Land
dcfcended, from the Mother, and then the
Mother's Line was preferred.

. How this Law was obferved in the Inter~
Val between Hm. I. and Hen. II. we can give
no Account of; but. the next Period that we
come to is, the Time of Hm. II. wherein"
Glanruille gives us an Account how the Law
ﬂood at that Time : Vida Gl'anville, Lib. 7.
Wherein nOtwithﬁanding it will appear,
that there Was fome Uncertainty and Un-
fettlednefs in the Buﬁnefs of D‘efcents or
Hereditary SucceﬂiOns, tho’ it was much
better polifhedtha’n formerly, the Rules
then of Succeﬂion were either in reference
to Goods, or Lands. 1/}, As to Goods, one
Third Part thereof Went to the Wife, ano-
ther Third Part went to the Children, and
the Other Third was left to the Difpoﬁtion‘

Q 2 of

227

 
 

2.2.3

 

tithe {pram bf the Ch. 1‘1",

of the Teﬂator; but if he had no Wife,
then a Moiety went to the Children, and
the other Moiety was at the Deceafed’s Dif—
pofal. And the like Rule if he had left a
Wife, but no Children. Glamv. lib. 7. cap. 5'.
d)“ V2616 lib. 2. cap. 29. , ‘

But as to the Succeﬂion of Lands, the
Rules are thefe:

Fir/Z, If the Lands were Knights Service,
they generally went to the eldef’t Son; and
in cafe of no Sons, then to all the Daugh~
ters; and in cafe of no Children, then to
the eldef’t Brother. ‘

Secondly, If the Lands were Socage, they

‘defcended to all the Sons to be divided; Si

fuerit Soccagz'um (7" id antiquity: divifum; only
the Chief Houfe was to be allotted to the
Purparty of the Eldei’t, and aCompenfation
made to the ref: in lieu thereof: Si 'vew non
fuerit antiquitus diviﬁtm, rum Primogenims ﬁg-
cumlum quorundam Conﬁtetudz'nem totam erezli-
tatem olatinebit, ﬁcumlum autem guorumlam Con-
fueturlz'nem poflmtu; Filly: Hatres cﬂ. Glantw'lle,
lib. 7. ca . 3. So that altho’ Cuﬁom direéted
the Delgent varioufly, either to the eldeﬂ or
youngef’t, or to all the Sons, yet it feems
that at this Time, 7145 Commune, or Common
Right, fpoke for the eldeﬂ: Son to be Heir,
no Cuﬂom intervening to the contrary. .
T birdl], As the Son or Daughter, f0 their
Children ininﬁnitum, are preferred in the
Defcent before the Collateral Line or
Uncles.
Fourtlaly,
Ch. II. Grumman mm of England.

Fourtbly, But if a Man had two Sons,
and the eldef’c Son died in the Life-time of
his Father, having Iﬂ'ue aSon or Daughter,
and then the Father dies, it was then con-
troverted, whether the Son or Nephew
Ihould fucceed to the Father, tho” the bet-
ter Opinion feems to be for the Nephew,
Giana/i1. lib. 7. cap. 3.

Fiﬁ/21),, A Bal’tard could not inherit, Mid.
cap. 13, or 17. And altho’ by the Canon or
Civil Law, if A. have a Son born of B.~
before Marriage, and after A. marries B,
this Son {hall be legitimate and heritable;
yet according to the Laws of England then,
and ever ﬁnce ufed, he was not heritable,
Glan'vil. lib. 7. ca . If.

Sixrbly, In caIe the Purchafer died with—
out IiTue, the Land defcended to the Bro—
thers; and for want of Brothers, to the
Siﬂers; and for want of them, to the Chil—
dren of the Brothers or Sifters; and for want
of them, to the Uncles; and f0 onward ac-
cording to the Rules of Defcents at this
Day; and the Father or Mother were not
to inherit to the Son, but the BrOthers or
Uncles, and their Children. 117111. cap. I.
29' 4.

And it feems, That in all Things elfe, the
Rules of Defcents in reference to the Col-
lateral Line were much the fame as now;
as namely, That if Lands defcended of the
Part of the Father, it {hould not refort to
the Part of the Mother, or E coymrﬁ; but
in the Cafe of Purchafers, for want of

Q ; Heirs

229

 
 

 

@be 119mm of the Ch. .115

Heirs of the Part of the Father, it reforted
to the Line of the Mether, and the nearer
and more Worthy of Biood were preferred:
So that if there were any of the Part of the
Father, tho’ never f0 far dif’tant, it hindred
the Defcent to the Line of the MOther',
though much nearer. ' ’ ‘ ’

' But in thofe Times it feems there were
two Impediments of Defcents or hereditarv
Succeﬂions which do ”not now obtain, (viz.

Fir/f, Leprofy, if f0 adiudged by Sen—
tence of the Church: This indeed Iﬁnd
not in Glmzw'lle; hut Iﬁnd it pleaded and
allowed'in the Time of King 705% and
thereupon the Land Was‘ adjudged from
the Leprous Brother to the Sifter. Pafcbl
4. Tfobnmzar. ' ' I' i ' ‘

Second/y, There was another Curioﬁty in
LawJ and it was wonderful to ﬂee how
much and how long it prevail’d; for we
ﬁnd it in Ufe in Glanwiﬂc, 'WhO WI‘Oté
Temp. Hen. II. in Braﬁon Temp. Hen. III. in
Flam Temp. E1222. 1. and in the broken Year
of I; E. I. Fizz/9. Avon/my 23$. Nemo pore/1;z
'42 72mm 6“ Dominm, 6“ Homagium repelli;
Parquiﬂmm: Andt/herefore ifthere had been
three BrOthers, and the eldeﬁ Brorher had
enfeoff’d the fecond, referving Homage,
and had received Homage, and then the
fecond had died without IiTue, the Land
ihould have defcended to the youngeﬂ Bro-
ther and no: to the eideﬂ Brother, 2m};
Homagium repellz't pergnifz’z‘um, as ’tis here faid,
for he could not pay Homage to himfelf.

‘ ‘ ' 1 ' ' ’ Wife
Ch. :1. Qtumfuun mm of England.

Vide for this, Bméhn, Lib. 2. cap. 30. Glam/1'1.
Lib 7. cap. I. Flew, Lib. 6. cap. I.

But at this Day the Law is altered, and
{0 it has been for ought I can ﬁnd ever
{nice 13 E. I. Indeed, it is antiquated rather
than altered, and the Fancy upon which it
was grounded has appear’d trivial; for if
the eldeﬁ Son enfeoff the fecond, referving
Homage, and that Homage paid, and then
the fecond Son dies without Iﬁue, it will
defcend to the Eldei’t as Heir, and the
Seigniory is extinét. It might indeed have
had fome Colour of Reafon to have exa-
mined, whether he might not have waved
the Defcent, in cafe his Services had been
mere beneﬁcial than the Land: But there
could be little Reafon from thence to ex-
clude him from the Succeflion. I {hall men-
tion no more of this lmpediment, nor of
that of Leprofy, for that they both are
vaniihed and antiquated long ﬁnce; and, as
the Law now is, neither of thefe are any
Impediment of Defcents.

’ And now paiﬁng over the Time of King
3%; and Richard I. becaufe I ﬁnd noching
of Moment therein on this Head, unlefs the
Ufurpation of King 70/97; upon his eldeﬁ:
Brother’s Son, which he would fain have
iul‘tiﬁed, by introducing a Law of prefer;-
ing the younger Son before the Nephew
defcended from the elder Brother: But this
Pretenﬁon could noway juﬁiﬁe his Ufurpa-
tion, as has been already fnewn in the Time

of Hen. H. i
' Q 4 Next,

231

 
 

 

23-1.

 

are ﬁgiﬂugp at the (3h. 11.

Next, I come to the Time of Hen. III. in
whofe Time the Traétate of Bmmn was
written, and thereby in Lib. 2. cap. go, (’9'
gr. and Lib. 5'. cap. . it appears, That
there is f0 little Variance as to Point of De-
{cents between the Law as it was taken
when Breffon wrote, and the Law as after-
wards taken in Ea’w. I.’s Time, when Britta»
and Flew wrote,that there is very little Dif—
ference between them, as may eaﬁly appear
by comparing Braél‘on ubiﬁtpm, é' Flem, Lib. 51.
cap. 9. Lib. 6. «gap, 1, 2.. that the latter feem
to be only Tranfcripts or Abf’traéts of the
former. Wherefore I {hall fet down the
Subftanee of what both fay, and thereby

it will appear, that the Rules of Defcents

in Hen. III. and E422). L’s Time were very
much one,

Fir/r, At this Time the Law feems to be
unqueﬁionabiy fettled, that the eldei’t Son
ivas of Common Right Heir, net only in
Cafes of Knight Service Lands, .but alfo of
Socage Lands, (unlefs there were a fpecial
Cul’tom to the contrary, as in Kent and fome
Other Places) and {0 that Point of the
Common Law was fully fettled. ’

Secondly, That all the Defcendants in in-
ﬁnitum, from any Perfon that had been
Heir, if living, were inheritable fare re-
prefenmtioaiy; as, the Defcendants of the
Son, of the Brother, of the Uncle, (9'0.
And alfo,

T birdl], That the eldel’t Son dying in the
ILiife-time of the Father, his Son or lﬂhe

r. _ was
6h. it. Qtummau 1&1me England.

was to have the Preference as Heir to the
father before the younger BtOther, and fq
the Doubt in Glanrui/le’s Time was fettled,
Glan‘w’l. Lilz. 7. cap. 3. Cum quit autem maria—e
tur babem Filitrm paﬂmtam, (7', ex primogenito.
Elia premartuo Nepotem, Alagna quidem 7am}
dubitatio ﬁlet eﬂe war illamm prrfermdu: ﬁt
alii in 2114 Succe/ﬁone, fciliaet, utmm Film: amt
Nepos?

' Fourtblj, The Father, or Grandfather,
could n0t by Law inherit immediately to
the Son.

Fiﬁ‘bb’, Leprofy, Though it were an Ext-
ception to a Plaintiff, hecaufe he ought not,
to converfe in the Courts of Law, as Braél‘on,
Lilz. 5. cap. 20. yet we no where ﬁnd it to
be an Impediment of a Defcent.

So that upon the whole Matter, for any
Thing 'I can obferve in them, the Rules of
Defcents then ﬁood fettled in all Points as
they are at this Day, except fome few Mat-
ters (which yet foon after fettled as they.
now Rand), viz...

Fir/r, That Impediment or Hindrance of
a Defcent from him that did Homage to
him that received it, feems to have been
yet in Ufe at Ieaﬁ till I; E. I. and in Flem’s
Time, for he puts the Cafe and admits it.
Secondly, Whereas both Braﬁon and Flem
agree, that half Blood to him that is a Put-
chafer is an Impediment of a Defcent; yet
in the Cafe of a Defcent from the Com,
mon Ancef’tor, half Blood is no Impedi-
‘ ' ‘ meats

933..

 
 

234

 

eye airing? at the Ch. u“:

them. As for Inﬂance -, A. has Iﬂ'ue B. a Son
and C. a Daughter by one Venter, and D.a
Son by another Venter : If B. purchafes in
Fee and dies without Iffue, it {hall defcend
to the Sifter, and not to the Brocher of the
half Blood; but if the Land had defcended
from A. to B. and he had entred and died
without Iffue, it was a Doubt in Brac'lon
and Britron’s Time, whether it {hould go to
the ounger Son, or to the Daughter? But
the law is ﬁnce fettled, that in borh Cafes
it defcends to the Daughter, Et ﬁai/z‘m facit
Stipz'rem é‘ primum Gradum. E: poﬂejfio Fratri;
dc Feada ﬁmplz'ci facit Sororem eﬂé bmedem.

Thus ‘upon the whole it feems, That
abating thofe fmall and inconﬁderable Vari-
ances, the States and Rules of Defcents as
they ﬂood in the Time of Hm. III. or at
Ieaii: in the Time of Ed»). I. were reduced
to their full Complement and Perfeétion,
and vary norhing conﬁderably from what
they are at this Day, and have continued
ever ﬁnce that Time.

I {hall therefore fet down the State and
Rule of Defcents in Fee-Simple as it ﬁands
at this Day, without meddling with parti-
cular Limitations of Entails of Eﬂates,
which vary the Courfe of Defcents in fome
Cafes from the Common Rules of Defcents
0r hereditary Succeﬂions’ 5 and herein we
fhall fee what the Law has been and con-
tinued touching the fame ever ﬁnce Brafi‘on’s
Time, who wrore in the Time of Hm. Ill.
new above 400 Years ﬁnce, and by thaihwi
" ' al
53h. I I. atommuu mm of England.

{hall fee what Alterations the Succeﬂion of
Time has made therein.

And now to give a fhort Scheme of the
Rules of Defcents, or hereditary Succeﬂions,
of the Lands of Subjeéts as the Law ﬁands
'at this Day, and has flood for above four
hundred Years paﬁ, viz.

All pomble hereditary Succeﬂ'ions may be
dil‘tinguilhed into thefe'; Kinds, "viz" either,
' 1/}, In #98 Drfcemlin Line, as from Father
to Son or Daughter, glephew or Niece, i. e.
ﬁrandfon or Grand-daughter. Or,

2511], In the Collateral Line; as from Brother
to Brorher' or Siﬁer, and fo to Brorher
and Sifters Children. Or,

' 3111], In an Afcemling Line, either direé't,
as from Son to Father or Grandfather ,
(which is not admitted by the Law of Eng-
laml) or in the tranfverfal Line, as to the
Uncle or Aunt, Great-Uncle or Great~
Aunt, @‘c. And becaufe this Line is again divi-
ded into the Line of the Father, or the Line
of the Morher, this tranfverfe afcending
Succelﬁ-on is either in the Line of the Fa‘
ther, Grandfather, é’c. on the Blood ofthe
Father, or in the Line Ofthe Mother, Grand-
mother, d‘c. on the Blood of the Mother:
The former are called Arlgmti, the latter
Cognatl: I {hall therefore fer down a Scheme
of Pedigrees as high asGreanGrandfather and
Great.GrandmOthersGrandﬁres,and aslow as
Great—Gandchild, which neverthelefs will be
applicable to more remore SucceHions with
a little Variation, and will explain the whole
Nature of Defoents or hereditary Succeﬂions.
’ ‘ ‘ ‘ ‘ ‘ The

235

 
 

The MT 2 RNA L Line. The MA TE 3 N31 tine.

.v—a‘h‘ h—u—n. “a."

'P—_'
Trztavur, or Great-Grandfather’s Great-Grandfather. Trim'ufﬂ, or Great-Grandmothers Great-Grandmother.
drama, or Great~Grandfather’s Grandfather. Amv'a, or Greathrand mothers Grandmother.

 

 

 

 

2315

__ _.___ ”A...

 

 

———.-——

 

 

 

 

 

”nu—-

 

 

 

-—-—--—.. J. _ -_—. -—-—-—— -———-——_o—— ‘H
46am“, or Great-Grandfather’s Father. Abaw’a, or Great—Grandmorhers Mother. ‘
f" . ---J""— -—-1 r- --1
Praamzta Magma. I Prapatrum‘ Magnum. Proavm. Prod-via, or Prowunculm. Proma‘rertemMagm.
vGreat Great-Aunt. Great-Great-Uncle. Gr. Grandfather. "GnGrand mother. Gr. Great—Uncle. I GreatLGrcat-Aunt.
r— 7- ~——--—--— -1 r-.—- --—---—
Amzta Magm. Emma Magma. ‘ Avw, or ﬂag“, or I Avrmmlm Ma nus. Matertera Magma.
Great-Aunt. Great-Uncle. Grandfather. Grandmother. Great-Unc e. i Great-Aunt.
r-—— -- -——- J‘- , * #/ .... m...
Amz'm, or Patrum‘, or r—Pm‘er. or Mater, or ~ Awmwlm. Matertem.
Aunt. I Uncle. F A T H E R. M O T H E R. Mothers Brother. Morhers bitter.

F~.m—_V—-L- "—0 .A-

 

*—

 

_——____.J\.._.__ __..

 

 

.-

 

 

 

 

 

 

 

 

 

 

 

 

I—_—h‘* m.

 

 

 

"-

 

 

 

 

Sarar, his Frater, his Fz'lz'm Primm;
Sifter. Brother. eldefi Son.

(- ---~-"‘*—--- '1 :- --—-1\--—-1 P— '
'Nepar. Nepm. Nepoy. Neptzls. Nepos, or Neptzir, or

Nephew. Niece. Nephew. Niece. Grandfon. Grandaughter.

 

 

me ilpiffuzy of the
f

.

Brother’

 

Conﬁrérinur.
Con/ﬁbrin.

Conﬁbrinur.
Cora/Mn”.

Sifters Son.
Brother’s Son.

Note, The Defcendants from all thefe
Six in the next Degree, if Male, is
called Prampar, if Female, Proneptir.
'12:. Great-Grandfbn, or Great-Gran:
daughter.

Sifters Daughter.

A Mothers

s Daughter.

A Mothers
A Mothers

Ch
A Mathers

It.

Q
Ch. I I. Grumman 1mm of England.

,This Pedigree, with its Application, will
give a‘plain Account of all Hereditary Suc-
ﬁefﬁons under their feveral Cafes and Li-
mitations, as will appear by the following
Rules, taking our Mark or Epoclm from the
FATHER and MOTHER.

But ﬁrl’t, I {hall premife certain gene‘-
ral Rules, which will direct us much in the
Courfelof Defcents as they ﬂand here in
England: (Viz, ) .

Fir/Z, In Defcents, the Law prefers the

worthieﬁ of Blood : As,

, Iﬂ, In all Defcents immediate, the Male
is preferred before the Female, Whether
in Succeffions Defcending, Afcending, or
Collateral: Therefore in Defcents, the Son
inherits and excludes the Daughter, the
Brother is preferred before the Sifter, the
Uncle before the Aunt. A

p 2:11], In all Defcent's immediate, the De-
fcendants from Males are to be preferred
before the Defcend'ant's from Females: And
hence it is, That the Daughter of theeldeft
Son is preferred in Defcents from the Father
before the Son of the younger Son; and the
Daughter of the eldeft Brother, or Uncle,
is preferred before the Son of the younger 5
and the Uncle, nay, the Great-Uncle, i. e.
the Grandfather’s Brother, {hall inherit be-
fore the Uncle of the Mothers Side.

Secondly, In Defcents, the next of Blood
is preferred before the more remote, tho’
equally or more worthy. And hence it is.

1]}, Th:

’37

1. Rule.

2. Rule.

 
 

tgé

3. Rule.

 

@be mutant of the Ch. 1’ r’:
Iﬂ, The Sifter of the whole Blood is pre-
ferred in Defcen‘ts before the Brother of the
half Blood, becaufe {he is more ﬁriétly joine-
ed to the Brother of the whole BloOd (viz...
by Father‘and by MOther) than the half
Brother, though otherwife he is the more
worthy. . _
mil}, Becaufe the Son Or Daughter being,
nearer than the Brother, and the Brother or
Sifter than the Uncle, the Son or Danghter
{hall inherit before the Brother 0r Siﬁer,’
and they before the Uncle.
gill], That yet the Father 0r Grand:
father, or Morher or GrandmOther, in a=
direét afcending Line, {hall never fucceed
immediately the Son or Grandchild; but
the Father’s Brocher ( or Siﬁers) fhall be pre~
ferred before the Father himfelf; and the
Grandfather’s Brother (or Sifters) before
the Grandfather: And yet upon a ﬁritﬂ:
Account, the Father is nearer of Blood to'
the Son than the Uncle, yea than the Bro-
t'her; for the BrOther is therefore of the"
Blood of the Brother, becaufe both derive
from the fame Parent, the Common Foul];
tain of both their Blood. And therefore the
Father at this Day is preferred in the Admii-
(nitration of the Goods before the Son’s”
Brocher of the whole Blood, and a Remain-
der limited Prcximo a’e Sanguine of the Son‘
{hall vefl: in the Father before it {hall vel’t in‘
the Uncle. Wale Litrkton, Lz‘b. I. f0. 8, 10'.

I. Tbirdlj, That all the Defcendants from,
fu-ch a Perfon as by the Laws of England"
it might"
Ch. 11. mmmun lLahi of England.

might have been Heir to anOther, hold the
fame Right by Reprefentation as that Com-
mon Root from whence they are derived;
and therefore,

1/}, They are in Law in the fame Right
Of Worthinefs and Proximity of Blood, as
their Root that might have been Heir was,
in cafe he had been living : And hence it is,
that the Son or Grandchild, whether Son
or Daughter of the eldelt Son, fucceeds be—
fore the younger Son; and the Son or
Grandchild of the eldel’t Brother, before the
youngel‘r Brocher; and fo through all the,
Degrees of Succeffion, by the Right of
Reprefentation, the Right of Proximity is
tranferred from the Rom tofhe Branches,
and gives them the fame Preference as the
next and worthiei’t of Blood.

2d! , This Right transferred‘by Repre-
fentation is inﬁnite and unlimited in the
Degrees of thofe that defcend from the Re-
prefented; for Filim the Son, the Nepo: the
Grandfon, the Almepos the Great-Grandfon,
and ft) in inﬁnimm enjoy the fame Privilege of
Reprefentation as thofe from whom they de‘
rive their Pedigree have, whether it be in
Delcents Linea], or Tranfverfal; and there-
fore the Great-Grandchild of the eldeﬂ
Brother, whether it be Son or Daughter,
{hall be preferred before the younger Bro-
ther, becaufe tho’ the Female be lefs worthy
than the Male, yet ihe ﬂands in Right of
Reprefentation of the eldei’r Brother, who
was more worthy than the younger. And
upon this Account it is,

3:11}, That

139'

 
 

€2.40

4. Rule.

9'- Rule.

 

Tithe ipt'ttﬂgy of the Ch; 1 i;
gall}, That if aMan have two Daughters
and the eldef’t dies in the Life of the Father,
leaving ﬁx Daughters, and then the Father
dies 5 the youngeﬁt Daughter {hall have an
equal Share with the other ﬁx Daughters,
becaufe they fraud in Reprefentation and
Stead of their Mother, who could haVe had
but a Moiety.

Fou'rtlalj’, That by the Law ‘Of England,
Without a fpecial Cuf’tom to the contrary;
the eldeﬁ Son, or BrOther, or Uncle, ex-
cludes the younger; and the Males in ad
equal Degree do nor all inherit: But all
the Daughters, whether by the fame or
divers Venters, do inherit together to the
Father, and all the Siﬂers‘ by the lame
Venter do inherit to the Brother.

, Fiftblj, That the lal’t actual Seiﬁn in any
Anceﬁor, makes him, as it were, the Ro'ot
of the Defcent equally to many ,Intents as
if he had been a Purchafer; and therefore
he that cannot, according to the Rules of
Defcents,derive~his Succeffion from him that
was laﬁ actually feized, tho’ he might have
derived it from fome precedent Anceﬁor,
(hall nor inherit. And hence it is, That
Where Lands defcend to the eldef’t Son from

._ the Father, and the Son enters and dies

without Iffue, his Sifter of the whole Blood
fhall inheritas Heir to the Brother, and not
the younger Son of the half Blood, becaufe
he cannor be _Heir to the Brother of the
half Blood; but if the eldeﬂ: Son had fur-

; vived

{3.3.
Ch. t1: \ qummmt ILain of England.
vived the Father and diedihefore Entry, the

ounoeﬁ Son {hould inherit asHeir to the
23

Father, and not the Sifter, beeaufe he is

Heir to the Father that was l‘al’t aﬁually'

feized. And hence it islfl‘hat, tho’ the
Uncle is preferred before the'Father in
Defcents to the Son; yet if the Uncle enter
after the Death of the Son and die without
IiTue, the Father {hall inherit to the Uncle,
quid Sci/inn facit Sripitem. ‘ ‘

Sixtbly, That whofoever derives a Title
to any Land, mui’t be of the Blood to him
that ﬁrl’t purehaled it: And this is the Rea-
fon why, if the Son purchafe Lands and
dies without Iffue, it {hall defcend to the
Heirs of the Part of the Father 5 and if he
has none, then to the Heirs on the Part
of the Morher; becaufe tho’ the Son has
both the Blood of the Father and of the
Mother in him, yet he is of the whole
Blood of the MOther, and the Confa‘ngui-
nity of the Mether are Conﬁmgainez‘ Cogaan‘:
of the Son.

And of the Other Side, if the Father had
purchafed Lands, and it had defcended to the
Son, and the Son had died Without IiTue,
and without any Heir of the Part of the
Father, it {hould never have defeended in
the Line of the MOther, ‘but efeheated: For
tho’ the Conﬁmguinéi of the MOther were the
Conﬂmguinei of the Son, yet they were not
of Confanguinity to the Father, who was
the Purchafer; but if there had been none
of the Blood of the Grandfather; yet it might

R ., have

34?

”.3.

6. Rule.

 
 

 

242

 

€132 ﬂﬂffﬂw Of $68 Ch. m
have referred to the Line of the Grandmo-
ther, becaufe her Conﬁmguinei were as well
of the Blood of the Father, as the Mother’s
Confanguinity is of the Blood of the Son:-
And confequently alfo, if the Grandfather
had purchaled Lands, and they had defcens
ded to the Father, and from him to the
Son 5 if the Son had entred and died with-
out Iﬂhe, his Father’s Brothers or Sifters,
or their Defcendants, or, for want of them,
his Great Grandfather’s BrOthers or Sil’rers,
or their Defcendants, or, for want of them,
any of the Confanguinity of the Great
Grandfather, or BrOthers or Sifters of the
Great. Grandmother, or their Defcendants,
might have inherited, for the Confangui-
11in of the Great Grandmother was the
Confanguinity of the Grandfather; but none
of the Line of the Mother, or Grandmother,
viz. the Grandfather’s Wife, fhould have in-
herited, for that they were not of the Blood
of the ﬁrf’t Purchafer. And the fame Rule
e‘comverﬁ) holds in Purchafes in the Line
of the Mother or GrandmOther, they {hall .
always keep in the fame Line that the ﬁrﬁ
Purchafer fettled them in.

But it is not neceifary, That he that in.
herits be always Heir to the Purchafer; it is
fuﬂicient if he be of his Blood, and Heir
to him that was laf’t feized. The Father
purchafes Lands which defcended to the Song.
who dies without IiTue, they {hall never dea-
fcend to the Heir of the Part of the Son’s
Mother; but if the Son’s Grandmother has a
Brether, and the Son’s Great Grandmother ‘

hath

V lat .
Ch. 11. Grumman mm of England. ‘54;
bath a Brorher, and there are no Other Kin-
dred, they ﬂiall defcend to the Grandmo-
ther’s Brorh‘er 5 and yet if the Father had
died without Iii‘ue, his Grandmother’s Bro—
"ther ﬂiould have been preferred before his
Mother’s Brother, became the former was
Heir of the Part of his Father tho’ a Fe—
male, and the latter was only Heir Of the
‘ Part of his MOther; but where the Son is
bnce feized and dies without Iﬂ'ue‘,‘ his
iGrandmorh’er’s Brother is tohim’ Heir of
the Part of his Father, and being nearer
than his Great GrandmotherstBrother, is
preferred in the Defcent. _
But Note, This 'is always intended fo‘long ‘6

- as the Line Of Defcent is not broken; for if
the Son alien thofe Lands, and then re-
purchafe them again in Fee, now the Rules
‘ of Defcents are to be obferved as if he: were
the originalPurchafer, and as if it had been
in the Line of the Father 0r Mother.

Seventbly, In" all Sticcefiions, as well in 7.15%.
file Line Deﬁemling, Pclﬂf‘vt’l’ﬁll, or Aﬁending,
the Line that is ﬁrl’c derived from aMale
Root has always the Prefere‘nCe;

_ Inf’tanees Whereof in the Line Deﬁending;

&C.,tviz.. ‘ , y _
_ A. has Iifue two SOns B. and C. B. has
IiTue a Son and a Daughter D. and E.
D. the Son has Iﬂhe a Daughter F. and E.
the Danghter has Iﬂhe a. Son G. Nei-
- ther C. nor any of his Deleendants, {hall
inherit fo long as there are any Defcendants
R; 2 {ram

 
 

244

‘Rules in
the Line

Aﬁmding.‘

xt-sRuIe.

‘ i there muﬂ: be a fuller Explication ; beeau
: it is darker and more obfcure, I ihall there.
“fore fet-forth the whole Method of Tranf.

 

me failing? at the ‘ Char.

from D. and“ E. and neither E. the Daugh-
ter, ndr any of her Defcendants, {hall in-

'herit f0 long as there are any Defcendants
éfrom D. the Son, whether they be Male or

Female. ‘
So in Defcents Collateral, as Brothers and

1 Sifters,‘ the fame Inﬁahces applied thereto,
-- evidenee: the fame Concluﬁons. ' ‘

.9

But in Shcceffions in the Line Afcending
c

xverfal 'Afcending Deﬁen’t: under the Eight
enfuing Rules, viz. «

: Firjf,.rlf: the Son purchafes Lands in Fee.
itiSitnplt: raind‘dies without‘Iﬁ'ue, thofe of the
"Male Line'afcending, ufque inﬁﬂitum {hall
:= be preferred in the Defeent, according to
.- their Proximity of Degree to the Son; and
wherefore; the Father’s Brothers and Sifters

and their.Defcendants fhall be preferred be.
fore, the Brothers of the Grandfather and

”their Defeendants; and if the Fatherlhad
,wno Brothers nor Sifters, the Grandfather’s
:Brothersaand their Defcendants, and for

want of Btothers, his. Sifters and their De-
fcendants, {hall be preferred before the

,«Brother's of. the" Great Grandfather: For

altho’ by the Law of Eﬁghmd the Father or

;"Grandfatlier_eannot immediately inherit to

«the Son, yet :the Direé‘cionof the Deleent
to the .Coliate'ml ﬂﬁwa’irtg Line, is as much as

. if the Father or Grandfather had been by
Law inheritahleg and. therefore as in cafe

, ,thc

i
can“. otommhu mm of England. 24;

the Father had been inheritable, and fhould
have inherited to the Son before the Grand—
father, and the Grandfather before the
Great Grandfather, and confequently if
the Father had inherited and died without
Iﬂ'ue, his eldel’t BrOther and his Defeen-
dants ihould have inherited before the.
younger Brother and his Defeendants; and
if he had no BrOthers but Sifters, the Sifters
and their Defcendants fhould have inherited
before his Uncles or the Grandfather’s Bro~
thers and their Defcendants. So though the
Law of England excludesthe Father from
inheriting, yet it fubﬁitutes and direéts the
Defcent as it fhould have been, had the
Father inherited, «viz. It lets in thofe ﬁrf‘t
that are in the next Degree to him,

Seconzlly, The feeond Rule is this: That a. Rule
the Line of the Part of the Morher {hall
never inherit as long as there are any, tho’
never f0 remore, of the Line of the Part of
the Father ; and therefore, tho’ the Morher
has a Brother, yet if the Armour or Ata‘vid
Patri: (zie. the Great-Great-Great-Grand—
father, or Great-Great-Great-GrandmOther
of the Father) has a Brother or a Sifter,
he or {he {hall be preferred, and exclude ‘
the Mothers Brocher though he is much
nearer. , ' .

Tbirdly, But yet further, The Male Line 3- Rule.
of the Part of the Father afcending, lhall
2'72 v£remum exclude the Female Line of the
Part of the Father afcendincr' and there.

)3)

R 3 fore

 
 

?' Rule.

@118 i‘piifasz 0f. the Ch. ; ;,

fore in the Cafe propofe‘d of the Son’s pur-
chaﬁng Lands and dying without Iffue,
the Sifter of the Father’s Grandfather, Or
of his Great Grandfather, and fo igainﬁnimm;
ihall be preferred before the Father’s Moi
thers Brother, tho’, the Father’s Mothers
BrOther be a Male, and the Father‘s Grand-
father or Great Grandfather’s Siﬂer be a
Female, and more remate, becaufe {he ' is
of the Male Line, which is mOre. wOrthy?
than the Female Line, thou ‘h the Female
Line be‘alfo of the Blood 0 the Father.

Fortrtbly,'-‘But as in the Male Line afcen—
ding-the. more near is preferred before the
more remOte; fo‘ in the Female Line de;
feending, f0 it be of the Blood of the F3;
t'her,'it is preferred before the more remote;
The Son therefore purchaﬁng Lands, and
dying without Iffue, and the Father, Grand4
father, and Great Grandfather, and f0 up;

‘ward, all the Male Line being dead with;

out any Brother or Sifter, or any defcen—
ding from them; but the Father’s Mother
has aSiﬁer or Brorher, and alfo the Father’s
Grandmother has a Brorher, and likewife
the Father’s Great GrandmOther has a Bro—
ther: Tho’ it is true, that all thefe are of
the Blood of the Father; and tho’ the very
remoteﬁ of them, {hall exclude the Son’s
Morhers Brother; and tho’ it be alfo true,
that the Great GrandmOther's Blood has
paired through more Males of the Father’s
Blood than the Blood of the Grandmother
or Mother of the Father; yet in this Cali,

l . M t ,
€11.11. catamaran mm of England.

the Father’s Mothers Sifter {hall be prefer-
red before the Father's Grandmorhers Bro-
ther, or the Great Grandmothers Brorher,
becaufe they are all in the Female Line,
wiz. Cogmm‘ (and nor Ad'gnati), and the Fa—
ther’s Morhers Sifter is the nearel’t, and
therefore lhall have the Preference as well
as in the Male Line albending, the Fa-
ther’s Brother or his Siﬂer {hall be pre-
ferred before the Grandfather’s Brother.

Fiﬁbbr, But yet in the lad Cafe, where
the Son parchafes Lands and dies without
Iﬂ'ue, and without any Heir on the Part of
the Grandfather, the Lands lhould defcend'
to the Grandmothers. BrOther or Sifter, as
Heir on the Part of his Father; yet if the
Father had purchafed this Land and died,
and it defcended to his Son, who died
without Iﬂ'ue, the Lands fhould not have
defeended to the Father’s Morhers Brother
or Siﬂer, for the Reafons before given in
the ﬂirt} Rule; But for want of Brothers
or Sifters of the Grandfather, Great Grand-.-
father, and f0 upwards in the Male afcen—
ding Line, it lhould defcend to the Father’s
Grandmothers Brorher or Siﬁer which is
his Heir of the Part of his Father, who
ihould be preferred before the Father’s
MOthers Brother, who is in Truth the Heir
of the Part of the MOther of the Purehafer,
tho’ the next Heir of the Part of the Fa-
ther of him that laﬁ died feized; and
therefore, as if the Father that was the Pur~
ehafer had died without Iffue, the Heirs

R 4, i' ‘ of

2.47

5. Rule.

 
 

6“ Rule.

ﬁberg’iﬁuw of the ‘ Chat;

of the Part of the Father, whether of the
Male or Female Line, fhould have been
preferred before the Heirs of the Part of
the MOther; fo the Son, who ﬁands now
in the Place of the Father, and inherits .
to him primarily, in his Father’s Line dyg-
ing without IiTue, the fame Devolution and
hereditary Succeﬂion fhould have been as
if his Father had immediately died with-
out If‘ﬁze, which ﬂiould have been to his
Grandmothers Brother, as Heir of the
Part (‘15 the Father, tho’ by the Female
Lira-5:, and not to his Mothers Brother,
who sV-as oniy Heir‘of the Part of his
h/iother, and who is not to take till‘ the
Father’s Line both Male and Female be
(pent. 1 . ' '

Sixrbly, If the Son purchafes Lands and
dies without Iffue, and it defeends to any
Heir of the Part of the Father, and then
if the Line of the Father (after Entry and
PoiTefiion) fail, it fhall never return. to
the Line of the Mother; tho’ in the firft
Inﬁance, or ﬁrft Defcent from the Son, it
might have defcended to the Heir of the Part
of the Mother; for now by this Def‘cent
and Seiﬁn it is lodged in the Father’s Line,
to whom the Heir of the Part of the Mo-
ther can never derive a Title as Heir,
but it ihall rather efeheat: But if the
Heir'of the Part of ’the Father had not
centred, and then that Line had failed,'it
might have defcended to the Heir of the
$32“! of the Mother as Heir to the Son,

t0.
Ch. ti. "etumutuil fart! of England. 249'”
to whom immediately, fOr want of Heirs

of the Part of the Father, it might “have
defcended. ' ‘

Sewentbly, And upon the fame Reafon, 7, Rule.
.if it had once defcended to the Heir of
the Part of the Father of the Grandfather’s
Line, and that Heir had entred, it fhould
never defcend to the Heir of the Part
of the Father of the Grandmothers Line,
beeaufe the Line of the Grandmorher was
not of the Blood or ‘Confanguinity of the
Line of the Grandmothers Side. '

Eigbtbly, If for Default of Heirs of‘ the 3, Rule.

Purchafer of the Part of the Father, the
Lands defcend to the Line of the Mo-
ther, the Heirs of the MOther of the Part
of her Father’s Side, {hall be preferred in
the Succeﬂion before her Heirs of the
Part of her Methers Side, becaufe they are
the more worthy.

And thus the Law {lands in Point of
Defeents or Hereditary Succefﬁons in
England at this Day, and has fo ﬂood and
Continued for above four Hundred Years
pail, as by what has before been faid,
may eaﬁly appear. And Note, The moﬂ:
Part of the Eight Rules and Differences
above 'fpeciﬁed and explained, may be
collected out of the Refolutions in the
Cafe of Clare toot/m BrookJ @“c. in Pkn’a’eri’s
Commentariex, Folio 444,:

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~ the Civil Law, the Canon Law, and the:

Common Law therein; I {hall here fub-
join the fo much famed Arbor Civili: of-
the Civilian: and Canoniﬂs, which being
compared with the Grad»: Parentelae in the:
Er]; Inﬂitutex,‘ will fully illuﬂrate what has
been already faid.
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C H A P. XII.
Touching Trial: by fur].

HAving in the former Chapter fomewhat
largely treated of the Courfe of De-
{cents, I lhall now with more Brevity con-
ﬁder that other Title of our Law which I
before propounded (in order to evidence
the Excellency of the Laws of England above
thofe of other Nations), «viz. 77w Trial by a
jury of Twelve Men; which upon all Ac-
counts, as it is fettled here in this Kingdom,
feems to be the belt Trial in the World : I
{hall therefore give a fhort Account of the
Method and Manner of that Trial, 'viz.

Fir/i, The Writ to return aJury, ifues to
the Sheriff of the County: And.

Iﬂ, He is to be a Perfon of Worth and
Value, that {0 he may ht: refponﬁble for
any Defaults, either of l'zix'xlelf or his Ofﬁ-
cers. And, pally, I: 32,14 faithfully and
honel’tly, to execute h}: Uh‘ize. This Ofﬁcer
is entruﬁed to e} and return theJury,
which he is obliged to do in this Manner ;
I. Without the Nomination of either
Party. 2. They are to be fuch Perfons

.as for Eﬁate and Quality are ﬁt to ferve

upon that Employment. 3. They are to
be of the Neighbourhood of the Faét to
be,

“ ‘nur
Ch. 12. Grumman itatn of England.

be inquired, or at leaf: of the County or
Bailywick. And, 4. Anciently Four, and
now Two. of them at leaﬂ: are to be of
the Hundred. 'But Note, 772i: 2;: now in
great Mezzfure altered by Statute. ‘
Secondly, Touching the Number and Qua.
liﬁcations of the Jury. . ‘
Iﬂ, As to their Number, though only
Twelve are fworn, yet Twenty four are
to be returned to fupply the Defe'é’ts or
Want of Appearance of thofe that are Chal-
lenged off, or make Default. 2511], Their
Qualiﬁcations are many, and are gene,-
rally fer down in the Writ that fum-
lmons them, viz. I.» They are to be
Probi és Iegale: Homintx. '2. Of fufﬁcient
.Freeholds, according to feveral Proviﬁons
of Acisof Parliament. 3. Not Convié’t of
any N'Otorious Crime that may render them
-unﬁt for that Employment. 4. They are
nor to be of the Kindred or Alliance of
.any of the Parties. And,- 5. Not to be
.fueh as are prepoﬁeﬁed or prejudiced be-=
fore they hear their Evidence. -
Tbirdly, The Time of their Return.
« Indeed, in Allizes, the Jury is to be rea-
dy at the Bar the ﬁrﬁ Day ofthe Return of
the Writ: But in Other Cafes) the Pannel is
.ﬁrﬂ'. returned upon the Venire Emmy, or ought
to be f0, and the Proofs or Witneli‘es are to
be brought or fummoned by Diﬂringm or
Habea: Corpom for their Appearance a‘t-the
[Trial], whereby the Parties may have.No-.
tice of th‘ejurors, and of their Sufﬁciency
and Indiﬁ‘erency, that To they may make
‘ their

253

 
an @be {pillow of we . €11.13};
their Challenges upon the Appearance of
the Jurors if there be juft Caufe.
4. Fourtbl], The Place of their Appearance;
If it be in, Cafes of fuch Weight and Con-
fequence as by the'Judgment of the Court
is ﬁt to be tried at the Bar, then their Ap-
pearance is directed to be there; but in or-
dinary Cafes, the Place of Appearance is it!
the Country at the Aliifes, or Ni/z' Prim, in
the County where the Ilfue to be tried arifes :
And certainly this is an excellent Conﬁitu;
tion. The great Charge of Suits is the at-
tendance of the Parties, theJury-Men and
Witneifes : And therefore tho’ the Prepara-n
tion of the Caufes in Point of pleading to
Iffue, and the Judgment, is for the moi’t part
in the Courts at I/Veﬂminfler, whereby there,
is kept a great Order and Uniformity of
Proceedings in the whole Kingdom, to pre—‘
vent Multiplicity of Laws and Forms; yet:
thofe are but of {mall Charge, or Trouble,”
or Attendance, one Attorney being able
to difpatch Forty Men’s Buﬁnefs with the
fame Eafe, and no greater Attendance than
one Man would difpatch his own Buﬁn‘efs :
But the great Charge and Attendance is at.
the Trial, which is therefore brought Home"
to the Parties in the Counties, and for the
mof’c part near where they live.
Fiﬁbly, The I’erfons before whom they
are to appear. . '
If the Trial be at the Bar, it is to be
before that Court where the Trial is ; if in
the Country, then before the Juftices of
Aliizes, or Nijz' Prim, who are Perfons well
I acquainted

 
(311.12. crewman lain of England.

acquainted with the Common Law, and for
the moﬂ: part are Two of thofe Twelve
ordinary Juﬁices who are appointed for
the Common Difpenfation ofjui’tice in the
Three great Courts at PVe/lmin/fer. And this
certainly was a mof’t wife Conﬂitution: For,

1/}, It prevents Factions and Parties in
the Carriage of Buﬁnefs, which would foon
appear in every Caufe of Moment, were
the Trial only before Men reﬁding in the
Counties, as Juﬁices of the Peace, or the
like, or before Men of little or no Place,
Countenance or Preheminence above others;
and the more to prevent Partiality in this
Kind, thofeJudges are by Law prohibited to
hold their Seﬂions in Counties where they
were born or dwell.

2471], As it prevents Factions and Part-l
takings, fo it keeps both the Rule and the
Adminil’tration of the Laws of the King-
dom uniform; for thofe Men are employed as
Juf’tices, who as they have had a Common
Education in the Study of the Law, fo the
daily in Term—time Converfe and Confu t
with one another; acquaint one another
with their Judgments, ﬁt near one anOther
in We/lmin/ier-Hall, whereby their Judgments
and Deciﬁons are necelTarily communicated
to one anorher, either immediately or by Re-
lations of Others, and by this Means their
Judgments and their Adminif’trations of
Common Juﬁice carry a Confonancy, Con-
gruity, and Uniformity one to anorher,
whereby both the Laws and the Admini-
ﬁrations thereof are preferved from Chat

, on-

m“

 
 

#56

7162 313mm? at are . €311.15:

Confuﬁon and Difparity that would una-
voidably'enfue, if the Adminiﬁration was
by feveral incommunicacing Hands, or by
provincial Eﬁabliﬂiments: And beﬁdes all
this, all thofe Judges are folemnly {worn
to'obferve and judge according to the Laws
of" the Kingdom, according to the belt of
their Knowledge and Underﬁanding.
Sindhi], When the Jurors appear, and are
called, each Party has Liberty to take his
Challenge to the Array it felf, if unduly
or'partially made by the Sheriff; or if the
Sheriff be of Kin to either Party, or to the
Polls, either for Infuﬂiciency of Freehold,
tor Kindred or Alliance to the other Party,-
or fuch other Challenges, either Principal,
or to, therFavour, as renders the'Juror
unﬁt and incompetent to try the Caufe, and
the Challenge being confefs’d or found true
by fome of‘ the ref: of the Jury, that parti-
cular incompetent Perfon is withdrawn.
Sweat/sly, Then Twelve, and no lefs, of
‘fuchaas .are indifferent and are return’d
'upon the Principal Pannel, or the Tales, are
fworn to‘ try the fame according to their
Evidence. » ' ‘ '*
Egg/9W}, Being thus fworn, the Evidence
on either Part is given in upon the Oath of
Witneﬁaesgor other Evidence by Law al-
lowed,':( as Records and ancient Deeds, but
iater Deeds and Copies of Records muf’t be
atteﬁed“ by the Oath'sof Witneiles). and
Other Evidence in theopen Court, and in
the Prefence .ofz'the Parties, their Attornies,
Council,:and' all By—ﬁanders, and before
- : 3. 4.‘ :4 uthe
Ch. 12. Grumman mm of England.

the Judge and Jury, where each Party has
Liberty of excepting, either to the Coma
petency of the Evidence, or the Compe-
tency or Credit of the WitneiTes, which Ex.
ceptions are publickly ﬂared, and by the
Judges openly and publickly allowed or
difallowed, wherein if theJudge be partial,
his Partiality and Injuf’tice will be evident
to all By—l’tanders; and if in his Direétion
or Deciﬁon he miﬁake the Law, either
through Partiality, Ignorance, or Inadver-
tency, either Party may require him to
feal a Bill of Exception, thereby to deduce
the Error of the Judge (if any were) to a
due Ratiﬁcation or Reverfal by Writ of
Error.

Nimbly, The Excellency of this open
Courfe of Evidence to the Jury in Prefence
if the Judge," Jury, Parties and Council,
and even of the adverfe WitneiTes, appears
in thefe Particulars: -

1/}, That it is openly; and not in private

257%“

Bills of
EXCep-
rich,

9'.
Excal-
lency of
his Trial.

before a Commifﬁoner or Two, and a ‘

cou le of Clerks, where oftentimes Wit-
ne es will deliver that which they will be
afhamed to tef’cifie puhlickly. -

24/], That it is Ore Tm»: perfonally ,- and
not in Writing, wherein oftentimes, yea
too often, a crafty Clerk, Commiflioner, or
Examiner, will make a Witnefs fpeakwhat
he truly never meant, by his dreﬂing of it up

in hisown Terms, Phrafes, and Expreﬂions 5 ,

whereas on the Other Hand, many times
the very Manner of a Witnefs’s deliver-
ing his Tellimony wéll give a probable

Indi—

 

 

 
 

2.58

@112 iptttnzp of the Ch. 17..

Indication whether he {peaks truly or falﬂy;
and by this Means alfo he has Opportunity
to correé’t, amend, or explain his Teﬁi-
mony upon further Queﬁi’oning with him,
which he can never have after a Depoﬁtion
is fet down in Writing.

3‘11], That by this Courfe of perfonal and
open Examination, there is Opportunity
for all Perlbns concern’d, viz. The Judge,
or any of the Jury, or Parties, 0r their
Council or Attornies, to propound occa-
ﬁonal Queﬁions, which beats and bolts out
the Truth much better than when the Wit-
nefs Only delivers a formal Series of his
Knowledge without being interrogated;
and on the Other Side, preparatory limited,
and formal Interrogatories in Writing, pre-
clude this Way of occaﬁonal Interrogations,
and the beﬂ Method of fearchin and ﬁfting
out the Truth is choak'd and upprefs’d.

4W}, Alfo by this perfonal Appearance
and Teftimony of Witnelfes, there is Op-
portunity of confronting the adverfe Wit-
neﬂ‘es, of obferving the Contradiction of
Witneifes fometimes of the fame Side, and
by this Means great Opportunities are gain-
ed for the true and clear Difcovery of the
Truth.

gtbl], And further, The very Quality,
Carriage, Age, Condition, Education, and
Place of Commorance of W’itneffes, is by
this Means plainly and evidently fet forth to
the Court and theJury, whereby the Judge
and Jurors may have a full Information of
them, and theJurors as they fee Caufe may

give
Ch. 12- Grumman Min of England. 259

give the more or lefs Credit to their Teﬁi-
mony, for the Jurors are nor onlyJudges of
the Faét, but many times of the Truth of
Evidence; and if there be jult Caufe to
disbelieve what a Witnefs fwears, they are '
not bound to give their Verdict according
to the Evidence or Teﬁimony of that Wit-
nefs; and they may fometimes give Credit
to one Witnefs, tho’ oppos’d by more than
one. And indeed, it is one of the Excel-
lencies of this Trial above the Trial by
Witneffes, that altho’ the Jury ought to
give a great Regard to Witneffes and their
Tei’timony, yet they are nor always bound Vida prox.
by it, but may either upon reafonable Cir- 1’“:
cumﬂances, inducing a Blemifh upon their
Credibility, tho’ otherwife in themfelves in
Striétnefs of Law they are to be heard, pro.
nOunce aVerdié’c contrary to fuch Tei’ti-
monies, the Truth whereof they have juit
Caufe to fufpeét, and may and do often
pronounce their Verdi& upon one tingle
Teﬂimony, which Thing the Civil Law
admits mat of.

Tentbl], Another Excellency of this Trial to.
is this; That the Judge is always prefent
at the Time of the Evidence given in it:
Herein he is able in Matters of Law emerg-
in upon the Evidence to direét them,- and
al 0, in Matters of Faét, to give them a
great Light and Aliii’tance by his weighing
the Evidence before them, and obferving
where the Quei’tion and Knot of the Buli-
nefs lies, and by ihewing them his Opinion
even in Matter of Fgét, which is a griat

2 d.

.+‘,
i

 
 

260

11.

In Trea-
1'on, Two
Witnef-
fes.

 

ﬁtbe mitten) of the ‘ Ch. 12.

Advantage and Light to Lay-Men: And
thus, as the Jury aﬂiﬂs the Judge in deter-
mining the Matter of Paé’c, fo the Judge
allifis the Jury in determining Points Of
Law, and alfo very much in inveﬂigating
and enlightening the Matter of Facft, where-
of the Jury are Judges.

Elevent/Jl}, When the Evidence is fully
given, the Jurors withdraw to a private
Place, and are kept from all Speech with
either of the Parties till their Verdiét is de-
livered up, and from receiving any Evi—
dence other than in open Court, where it
may be fearch’d into, difcufs’d and ex‘a.
mind In this Recefs of the Jury they are
to conﬁder their Evidence, and if any Wri-
tings under Seal were given in Evidence,
they are to have them with them; they are
to weigh the Credibility of Witneﬂ'es, and
the Force and Efﬁcacy of their Teﬁimonies,
wherein ( as I before faid) they are not pre-
cifely bound to the Rules of the Civil Law,
viz. To have Two Witneffes to prove every
Fact, unlefs it be in Cafes of Treafon, nor
to reieét one Witnefs becaufe he is ﬁngle,
or always to believe Two WitnelTes if the
Probability of the Faé’t does upon other
Circumf’tances reafonably encounter them ,-
for the Trial is nor here ﬁtnply by WitnelTes,

. but by Jury ; nay, it may f0 fall out, that

the Jury upon their own Knowledge may
know a Thing to be falfe that a Witnefs
fwore to be true, or may know a Witnefs
to be incompetent or incredible, tho’ no-

thing

7'
Ch. 12. atommuu iLatn Of England. 261

thing be objected againi’t him, and may
give their Verdict accordingly.

Twelfrbl}, When the whole Twelve Men 1;,
are agreed, then, and not till then, is
their Verdict to be received; and therefore
the Majority of Affentors does not conclude
the Minority, as is done in fome Countries
where Trials by Jury are admitted : But if
any One of the Twelve diilent, it is no
Verdict, nor ought to be received. It is
true, That in ancient Times, as Hen. II.
and Hen. IlI.’s Time, yea, and by F/em in the
Beginning of Edw. L’s Time, if the Jurors
diffented , fometimes there was added a
Number equal to the greater Party, and
they were then to give up their Verdict by
Twelve of the old Iurors, and theJurors
{0 added; but this Method has been long
Time antiquated, notwithi’tanding the Pra-
étice in Braéion’s Time,Li/7. 4. cap. 9.and Flew,
lib. 4. cap. 9. for at this Day the entire Number
ﬁrl‘t empannell’d and f worn are to give up
an unanimous Verdict, otherwife it is none. Verdié};
And indeed this gives a great Weight, Value unani.
and Credit to fuch a Verdict, wherein mous-
Twelve Men muf’t unanimouﬂy agree in a
Matter of Fact, and none dilTent; though
it muf’t be agreed,that an ignorant Parcel of
Men are fometimes governed by a few that
are more Knowing, or of greater Intereﬂ
or Reputation than the refi.

Mirteentbl}, But if there be Matter of Law 13.
that carries in it any Difﬁculty, the Jury
may, to deliver themfelves from the Danger _
of an Attaint, ﬁnd it Sfpecially, that fo it may £72333

3 38'

 
 

262

Bill of
Excep.

.tions.

14..

Judg-
ment.

€38 Emory of the Ch. 12..

be decided in that Court where the Verdict
is returnable-1 and if the Judge over-rule the
Point of Law contrary to Law, whereby
the Jury are erfwaded to ﬁnd a general
Verdict (whic yet they are net bound to
do if they doubt it), then the Judge, upon
the Requef’t of the Party deﬁring it, is bound
by Law in convenient Time to feal a Bill
of Exceptions, containing the whole Mat-
ter excepted to ; that fo the Party grieved,
by fuch Indifcretion or Error of the Judge,
may have Relief by Writ of Error on the
Statute of Weﬂminﬂer 2.

Fourteentbly, Altho’ upon general Verdiéis
given at the Bar in the Courts at W'eﬂminjler,
the Judgment is given within Four Days, in
Prefumption that there cannot be any conﬁ-
derable Surprize in f0 folemn a Trial, or at
leaﬁ it may be [con efpied; yet upon Trials
by Niﬁ prim in the Country, the Judgment
is 11m given prefently by the Judge of Niﬁ

prim, unlels in Cafes of Quart: Impedit: : But

the Verdict is returned after Trial into that
Court from whence the Caufe ilTued, that
thereby, if any Surprize happened either
through much Bufinefs' of the Court, or
through Inadvertency of the Attorney or
Council, or through any Mifcarriage of the
Jury, or through any Other Cafualty, the
Party may have his Redrefs in that Court
from whence the Record iﬂ'ued. '

And thus ﬁands this excellent Order of
Trial by Jury, which is'far beyond the
f}: rial by Witneﬂ‘cs according to the Pro-
:1. . .,_ . . peedings
Ch. 12.. crewman man: of England. 26;

ceedings of the Civil Law, and of the
Courts of Equity, borh for the Certainty,
the Difpatch. and the Chealﬂefs thereof :
It has all the Helps to invef’tigate "the
Truth that the Civil Law has, and many
more. For, as to Certainty,

1/}, It has the Teﬁimony of Witneﬂ‘es,
as'well as the Civil Law and Equity Courts.

2421}, It has this Teﬁimony in a much
more advantageous Way than thofe Courts
for difeovery of Truth.

gdly, It has the Advantage of the Judge’s
Obfervation, Attention, and Afiii’tance, in
Point of Law by way of Deciﬁon, and in
foint of Fact by way of Direction to the

ur .

4);)617, It has the Advantage of the Jury,
and of their being de Vicencto, who often-
times know the Witneﬂ‘es and the Parties:
And, 4

ytbly, It has the unanimous Suﬂ’rage and
Opinion of Twelve Men, which carries in it
felf a much greater Weight and Prepondera-
tion to difcover the Truth of a Faét than
any Other Trial whatfoever.

”3103.,“

 

And as this Method is more certain, fo it
is much more expeditious and cheap; for
oftentimes the Seﬂion of one Commiﬂion for
the Examination of. Witneffes for one Caufe
in the Eccleﬁaﬁical Courts, or Courts of
Equity, laﬁs as long as a whole Semen of
Nifz‘ prim, where a Hundred Caufes are
examined and tried.

5 4 And

\

.s I, .1 "_t 5‘,» _s.. W‘:
mime; «x “ ” “

.V .4 s»: saut— 33E“: ",‘:£FC:—§W*_?&“ia}.rf.*:’ - _ ... .

 
 

264'

@2112 ﬁniftugp of, .832. Ch. 1 2;,

And thus‘ much Concerning Triéis in
Civil Caufes. As for Trials in'Caufes Cri-

‘ minal, they ave'this further Advantage,

That regulary the Accufation as Prepara-
tory to the Trial is by a Grand Jury :- So
that as‘ no Man’s Intereﬂ, according tO' the
Courfe of the' Common Law, is to be tried
or determined without the Qaths of aJury of
Twelve Men; {0 no Man’s Life is to be tried
but'by'. the Qaths of Twelve Men, and‘by
the Preparatory Accufation or Indiétment
by Twelve Men or more precedent to his
Trial, uniefs it be in the Cafe of an Appeal
at the Suit of the Party. »

I might here ﬂICW theAntiquity of this
Method Of Trial, both from the Saxon and
the Britiﬂ] Laws, and demonﬂrate it to
have been in Ufe long before the Time of
Willa-m I. and indeed it feems to have been
one of the ﬁrﬂ Principles upon which our
Cenﬁitution was erected and eﬁablifhed. ,

“.5351 de 613‘ Stiff}.

“THE.
 

THE

TABLE

 

A.
C T S of Parliament, many 101%,
(9c. ' Page at
Admiralty, its Jurifdiétion, (ﬁve
35: 36: 37
Arlgmztz (57 Cognati, their Difference. 216,
' 23$
{infwers of Petitions in Parliamenti- 48,
491 5"
Ancient Demefne, quid. 9';

[Ancient Manner of enaétin Laws. 14, 1';
Ancient Statutes. 3 to I 5,“ I60 t0'16;

Appeals 1n Parliament. ‘ 4.9 to y;
Appellations of the Common Law ‘ f4.
Arbor Civili1'. -- ' 2;!
Arthur Bari of Brittany. 11;, :14
Articles of :‘fu/ﬁm Itin’emnt. I47
Attaints. - 49

13- Baa:

 

 
 

Tb: TABLE.

B.

Ballads inheritahle. Page 220, :11
Battle, Trial by it. ' n;
Becket (Archbilhop) his Infolence. 1&5:
Bilhop’s Conﬁﬂoryfever’d from the Sheri 5

Court. 3: , 32
Berwick, by what Law govern’d. 184
Bills of Exception. 2y7, 262

Home (Francis) and Tlmmz: Adame, their Cafe.
129
80/20 (Wlliam) V'erf ffmﬂ'j Rujham. Ibid.

Braﬂon cited. :07, 120, 1:7, 232
Britiﬂ: Laws 64, 220, 22:
Bram to» cited. 4, 88, 89, 221
Bun les of Petitions in Parliament. [4,
' , . .747, (9'0.
Butler 5 Ordinance. :9
C.

Canon and Civil Law, of what Force here.
, 28 to 3;, 73

Can/£54 (William) his Cafe. 12!

Charters of King 3%.. 8, I48, é'c.
Charters of Saxon’Kings pleaded. 96, 118
Charters for reﬂoring Lands. 99, too, é'c.

Clmmr (Adam) his Cafe. 47
Cbopimus, dc Domam’a' Franc-ire cited. 11;
Church Lands not conﬁfcated. 99
Clergy,their Infolencies checde. t to, 14;,

1 160
Common Law, quid, éc. 2; to 28
------ It’s Preheminence. 42 to ‘4;

urn—.— It’s
ThTﬁBLE.

._...—-It’s Ufe end Excellence. Vial. Chap. 3.
per Tatum. Three Conﬁituents thereof:

' Page 66, 67, 01:.

Common Law Matters refufed Relief in

Parliament. - ¥ 47, 48, 49
Common-Plea: Court. 14 ,xyo,ryz,1 37, 16°
Conﬂitutions of Clan . 6 r 8

Competitors for the Grownng, £3,123: 88

D.’

Daniﬂ: Laws rs, 6;, 64, ms. 106,22:

Denominations of the Cbmmon Law. g4

Defcents, the LaWs thereof. 11;, 117, 11.1.
E: «aide Chap. 1 r . per ﬁlms.

Diébm: dc Kemlwortb. 2o, “8
Divorces, their Kinds and Eﬂ'eas. 34, 3-;
Doomfday-Baak. 93', 109

Double Portion amenithe 7m”. avg, 21:
Drenges, who 16 call: 96, 98

E.
Eccleﬁaﬁicél Courts and their Intifdiaion,

é‘c. q to 35', 10;, no, :60
Edgar uﬂtlzeling, his itle to the Crown. 88

Edingtborp (Adam) his Cafe. 47
Edmund Earl of Kent, 'his Cafe. 4!
Edward the Conﬁ/for’s Laws. 4, 55, 56, m6,

118

Elder BrOther’s (Son) to inherit or not. I 13,
17.9: 23°: 7-3 I: 334! 34°
Englz'ﬂa Laws fettled: In Ireland. > 1 f4
wAnd in ”741131. --v- And in Wham}.
_ Ex

 

 
 

mm B‘L'E.

 

ExchequétCourt} ' Page I60
Exaﬁéuﬂic’ato Capiemlo. 34-
Feudsfthe Law‘s thereof. gx7, 2'24
freclrz'ck, Abbe; of St. Albam. 194, to;
Frenp/a 9: Norman Laws. 7 IQ7
Frencb Tangue endeavoured to be intro-
duced. lo , ,
~Fines, pro Stultiloguio (ﬁve) pro Pulcbre placi-
tzmglo: . I 59
> 1 PM Licgntig Concordandi. 15' I
~—»-'-_-—~Pro ﬁabemla Inqm‘ﬁﬁom. 15';
New cited; ' h ,, ‘ 23,2
Eulcb (Williamfa Judge;- big gale,» ' ' _12.9.
G.

'Gcrvgﬁm-ﬁﬂurﬁmﬂ: Cited. 98, 106, 107, 109
.Glzznrville Cited. :17, 118, ‘12:,- 131,339,
199, 227, 69%- 23;

Grand Coutumier of Normandy Cited. 11;,
‘ 11;, 66’s. to 123, 127, 136

Grants by King William I. 100, 101
GrzECZam, their Law of Defcents. 211, 212,
21»;
Guém/Z'y and jag/Ev] lepmdg. 11;, 115: 184;
' ’ ‘ ‘ to 189

H.
Harold’s Ufurpation, (6:. 88, 89
Hebrews, their Laws 9f Defeents; 299, 210.,
x ' ; ' 2ft

H0100;
£56: T- A. BL wB.

Holcot Cited. . 4 Page, 4104.
Hor'ngz'um repellit perquiﬂmm. ‘13'9', "230
Ho'veden Cited. 6, 8, 56, 8;, 88, 10;, 138-,
' ' 347'

I' . :1“.

geronymm (Robert) his Cafe, , ‘ 4 "1129

ferﬁy and Gitemﬁ] Iﬂands, &c. ' 113', n4;
2,115,184.;0 189
7622):, Male Hebrews. ‘ _ 'TW“
Impeachments apd Appeals. 52, g';,"_ 45-4,
Inconveniencxes 1n the Law remedied. 11.40;.
_ A ’41 I:

Ingulpbm cited. ' -- 137’“
Judgments in Parliament. 41, go, 5-1, {9}.
Judges of the Common Law, Expound‘ersf
'of all Statutes. , ,- 4 4;:
Judicial Deciﬁons, a Part of the Commom

 

Law. . ‘ 68, .69,’7o:
Jutifdiéﬂon Temporal, f'epatated froszcﬁ
cleﬁaﬁical. 32, 3;, 103, no
Ireland conquered. 62 , 146
Engliﬂ: Laws fettled there. 15‘4

:7“: Primogmiturae. 209, 21]:
jut Reprefémmionis. 209, 2‘16, 2'32, 243

15;.

Kmelworﬂa Edié’c. , 20, I§83
Kent (Earl Edmond) his Cafe. 41
---—Cu{’toms of Kent. 22;, 226‘.
Knoﬂes (Sir R0561?) his Cafe. 47.
King Edgar’s Laws, éc. 56, 85, 87

King

 

 
 

Tire T A B L E.
K. Edward the Confeﬂ‘or’s Laws. Page 4, :5,

c. 118

King William I. his Laws. 4, g
._.— Not impos’d by Conqueﬁ. 7;
-—- His Title to the Crown 87, 88
-—- His Conquei’t of Harold, not of the
Kingdom. 86, 89
--- What he did afterward. 94, é’c. 10;,
éc. 22 , 224

--- Conﬁrms the Engliﬂ: Laws, an adds
others. my, 107
King Hem] I. his Laws. 5, 6, 226
King Richard 1. his Laws. 7, 8

King ﬁlm, his Laws, é'c. 8, 113, 11;,
- , I48, 154, I: , 23X
King Stephen, his Laws, (’97:. f x 37
King Henry II. his Laws. 6, 137, 138, 227
King Henry III. his Laws. 15", :57, 232
King Edward I. his Laws, (9%. 15'8, 160,é’c. ‘
King Edward II. and III. their LaWs. 167
to 170

L.

Lambard cited. 4, g, 6, 6;, 86, 221, 222, 22;
Laws, their Kinds, é'c. Pag. I, 2, and

Chap. I, 2, and g. per Tatum.
Laws of the Danes, Mercia»: and PVe/tI Saxons;-

. . if» 64, 86

Laws of England, their Qualiﬁcations. 7:,
7'1 73

--—-- Not impos’d by Conquef’t. ’ 7;

---- Nor deriv’d from the Normans, In,
67:. Sad écantm. Vile Chap. 6. per Tatum.

4 ---N0t
Tbs-TA BLL E.

.— No't altered by K. WW4»: I. 91, 93 ,é‘c.
tog,c§"c. But conﬁrm’d by him, my, 106.-
And Others add, Commum' Concilio Regm'.

Page 107, 108

Lands not forfeited by the Conqueft. 99

Leprofy, the Law thereof. 120, 230
Leiceﬂer, the Abbor, his Cafe. 152.
Lex Mercatoria Fore/he, &c. > 26

Limitation, the feveral Times thereof. 12;,
£24. no. 144

Lindwood cited. ‘ , . g;
Litcbﬁeld’s Chronicle Citéd. 85', 105‘
Lombard:, their Laws of Defcents. 217
Lowtber (Hugh) his Cafe. 47
Magma Cbarta,the Hiﬂory thereof. :49, i 5;
Magma Rot. Stamtorum. 14, If, 17
Mann, of the Laws of that gland. _ [184.
Manner of enaéting Laws. " 1‘14, 1:

Marﬂmll (7057:) and Robert 7mbymin, theft
Cafe. _ . 129
Martial Law. 4o, 4!, 4:
Mat. Pari: cited. 6, 8, 87, my, 114, 11;,
. xyo, 15;, (9'0.

Mercian Laws. ‘ yy, 63, 106
Military Court, its Jurifdiétion, d’c. 37,
to 40

Murder, the Law about it. xo7

N.
Naval Laws, their Force. 146
Necqﬂita: dtﬁndit quad cogit’. 4.0
Name pate/l tﬂé Dominm (5' Ham (ml Temm)
.159, 230
Nolumm

 

 
 

The T A” B L‘ E.‘
Nolumu: Leger Anglia Mature. Page 5'4
Norman Laws, 64, 104, 107, 217, 218 Vida

a . 6. per Tatum.
-—- Caufes of their Similitude, with the

Engliﬂ: Laws;126,(9vc;
Norman Language and Laws endeaVoured ,
to be introduced 1‘04
Normand], how long united with England,
V 11;
9—— Forms of Writs there. 122.
--——-— Pleas of Land there. ' 129
Norwich, the Bifhop’s Cafe. 48
o. ‘ '
Old Statutes. ‘3, 7,8, 9,17, 18,119
Ordeal Trial. »
Orders of the Earl, Conﬂable and Marfhal.
39: 4°
Ordonationum Rotulm‘. 1;
Original of the Common Law. Vide Chap. 4
per Tatum.
Oxﬁrd Univerﬁry, its Cafe. 3;, 34
, i . 4 4. ‘ P.
Parliaments, and A615 of Parliament. 8 to
12, 21
Parliamentary Records. 12 to 20
Parliament refer Matters to the Common
Law ' 47, 4-8, 49

Partible or not partible, 1. e. Lands, (ya 1;; ,

‘1 154, 217, 218, 222
Perclmrd ( 310572 ) his Cafe. ' 114
Petits Leger Am'ue cited 21 I
. 3 Petitions
§

Tﬁ: T A BLLZ Es?

Petitions in Parliament, Page 14, 47, 48,
. 4-9: 0"-

Petition of Right. . . 4r
mam Re-C’orai; m 2 V ”$6,160"
Pldckomm Parliamenti Libei‘. I;
Pita; of Land ’in- Normand". ' 4“ 9-1129;
Pope and the Clergy; their In olenejes check’d. .
'28, 29,~ m, 143*, I69 -

Pherogativx Lex. _ , 26
Preheminence of theiCommon‘i‘La‘Mm 41,74
‘ 43, 44. E: Chap ;. pérmmhizl
Progreﬁ of the Laws, ., 7173?}; to :40;

Q iii. a? I '

‘ .1"; i? . f.“ i) Hj'd' ’ m.
Qualiﬁcations of the-Eng’lﬂk Ram—7 71, 72,9
j: u i {'5‘ , 773" (9'0:
ﬁlm: s-Bemb Court. -I 49, 15'05-‘I 2,1;‘7‘
Queen Mam}, her Title, éf'cai’ .‘l’ﬁs L313 137“-

. .s. .é."5ii,ﬁ¥ :3 —
If ‘

.21.; ~ 1,} in; ..,,,

.. . R; '4233' .3 1 2 ~ ~
R‘adulpbm J: Diceto Ciakds“: T " ' Irg“
Ranulpbm Ce/irenﬁ: Cited. é ' I. t ' $6
Rationalzile parte Bimomm. ’ ‘ ' Is;
Rbacola (Henryf h‘is' Cafe. " . ' 15').
Red Book of the Exchequer. 6, no

Romans, their Indulgence to the Conquered,
in Matters of Lavy and Religion. 8g, 8:
Their Laws of Defcents. 2x4, 21;

 

Rotulhx. Qrdonatz‘onum; . I;
RotuIm‘Statutomm. If” I f, 17

T i 8.. Saxon;

 

 
 

WU‘BPF'

Saxon Laws Page 4, 5,6 , 55, 64, m6 221
Scifmfam Stipite‘m.“ .34'1
Sclden cued. 5, 32, 96, IQQ, 106,109, r46,

~5:095, 2’11, 222, 2241

{Slmrnlzorn (Edwin) hrs Plea and Recovery.

 

 

a ‘ V 99
Shaiﬁ's befprg: the; Congueﬂ; I18
Sheriff’s QQurt. j * ‘ ; 31, 103
Sfelmm cited. , ~ 103 7
Stathte Laws, their Kinds, (In. Pag 2 to 9,
‘ ' Via'e 67
Statutes In particular, viz, ~- 50
—'—— Magnb Charm. 8 I7, I 55, I56 I60
—--—-» 2—4 Hm. 8: 843:. 12. t, , 30
.'—'-- 25 He». 8. cap. I9, 20, 2I. Ibia‘.
27 Hon. 8 cap. 24 , . 31
o-‘---‘- 8 Kid). 2'. cap. 5 _ , {.3 '
‘--‘-—- I3 Rich. 2. up. 2. Ibig:
-—-——I3 Ric/2. 2. 0?. :5.
~‘-——-— :5 Rich. 2. mp. 3'. Ibii
--——- I Hen. 4. cap 14.50.51
28 Edw. 3. cap. 3. . 54
--- 36 Edw. 3. 1:45.15. 5 . 104
----~ W'eﬂmin/ier I. wag-3 I6;
Strongbow (Earl) what he did 14‘s
" :I‘; j .

' m: "2%. . -
Times‘of‘Limitation. 123, 12 I o I
Time of Memory, 314M 824:, -4’2,3%,4,4g;-.
Twas By Battle. , . n3
1.. ......

“TABE

”31111113418 12:). E1C549433j

 

.1 fir it); ‘I‘um Page:
By OrdeaI. ' ‘ '. m
——'—‘.'_... Per P1751. ' 49
12214822 (Sir Roger) citsst .6: 8:
.17- 1 .
Verdiét, to be unanimous, éc. I ' 261 '
ifﬁ'orz‘d m Regem,‘ é“ Wﬂoria m Populum, 1:13:11;

UDiﬂ'erence,‘ (9's. 79. Vida 8; to 91, (it 163'.
Univerﬁty Privile e. 34
171 fage gives Force to the Common Law. 27,

 

--—-- And _to the Civil and Eccler aﬂ1ca1
Laws.

life and Authority of the Civil and Canon
Law. ‘ 27 t04 44'.
Ufa and Excellence of the Common Lam
41 to‘ 54, 6m,

Ufurpations of the Pope: arid Clerg7. 28, 29,
_ 30

W.

Wales, of the Laws there. 18; , 184, 2211,22:

Mljz‘ngbam ciiédi . ‘ ’ 114, 137

Wieights and Meafures.

Wills and Teﬂa’mé‘nts not cognizable 1n the
Spiritual Court, de 39m Communi. 33

Witneﬂ'es’. * - 2 56 to 2;9
Wincbelﬁ’a Men, their Cafe. I 5;
Written and Unwritten Laws 2, 3
Writs 1'11 Normamfy. :22

Writs

“my ..__._.~,.4

 
mku»‘-‘t~:;==p‘a~”ﬁ -< W ~ '

 

14.;4- r __.4 ‘ ‘.. . #1.;

 

 

‘w~ T.-.

 

 

15:: m B: L 2.
Writs of Enter, andiAxcaintw 3 Pagé 2'5
“(riff~ ’De Rationabili parte Bonomm. 15;
6:3 De Excammunicato Capiendm . .. 34,.

-, 1..

‘ Y.
Tarmoutb Men even/‘14: Wimbelfea Men, their
Cafe. . / 15;

 

V s
‘, .'
A.
‘
1
V < ”M
F, ‘1 1
f . .
.
.-\ ﬂ
., x
K.
 

 

THE

Amt/3%: ofz‘lae Law:

8 C H E M E,
ABSTRACT,

0f the Rivera!

Titles and Partitions
O F T H E

LAW Of ENGLﬂNYD,
Digef’ccd into Method.

Written by a Leemed Hamd;

 

 

’AVJ‘ep‘c (bud: 3:497:19; (:9 gawk) 5x. dwéMv-nu.

 

 

In the S A V O 2":

Printed by 910311 ﬂutt, Aﬂignee of Eziw’.
Sayer Efq; for ﬂab}! Waitnne in the
Middle-72mph Cloiﬁers, and at his Shop in

i Stafford. I713;

 

 

 

 

 

MW w

 

 
 
 

 

  

THE

_ Ami/bar’s PR EPA C E...

17’

 

N the enfuing Traétate Ifhall
make an E//czy of ‘Reduétion

of the feveral Titles of the Law.
into Diﬁributions and Heads (ac-
eording to an Analytical Met/20d);
But the Particulars thereof are
{0 many, and the Connexions of
Things In variOuS therein, that as
I {hall beforehand .confefs that
‘I cannoc reduce it to an exaét
Logical Method, {0 I muft declare
that Ido defpait at the Fitf’c, yea,
i the , Second or Third Eﬂay, to
reduce all the (conﬁderable) Ti»:
ties thereof under" this Method
But many Things will be omit;
ted; wand poﬂibly therefore; as
A a they

 
  
  
 

 
 

 

  
 

The Treface.

they {hall occur to my Memory,
will perchance be diforderly {hull
ﬂed in under fuch of the Diﬂri-
butions as may n0t be [0 proper
for them, or at leal’t inferted
brokenly, without their juf’t De—
pendance, till upon a Second or
Third, or, perhaps, further Bf.
fay, this Scheme or Abﬁraét may
be entirely new fram’d.

However, the follotting Eﬂay
will do thus much Good, viz.

Fir/Z, It will difcover that it is
not altogether impoﬂible , by
much Attention and Labour, to
reduce the Laws of England at
leai’t into a tolerable Method or
Dlﬂributiorz.

Secondly, It will give Oppon
tunity bOth to my felf and Others,
as there lhall occur new Thoughts

' ,_-6‘*'_ . on

 
7‘68 Treface.

or Opportunities, to rectify, and to
reform What is amifs in this, and
to fupply what is wanting, where-
by, in Time, a more Methodiml
Syﬂem or Reduo‘i‘ion of the Titles
of the Law, under Method, may
be difcovered.

Tbirdér, That altho’, for the moﬂ:
Part, the molt Met/oodical Di/fribu-
tors of any Science rarely appear
fubtile or: acute in the Sciences
themfelves, becaufe while they
principally ﬂudy the former, they
are lefs ﬁudious and advertent. of
the latter, yet aMethod, even in
the C 0771772072 Law, may be a good
Means to help the Memory to
ﬁnd out Media of Probation, and
to afﬁﬁ in the Method of Study.

And altho’ the Laws of England
are generally diﬁributecl into the
Common Law, and Statute Law, I

A 3 l‘nall

 
 

3: L
z is
’6 ii

The CPI/Efﬁe.

i‘hall not diﬁribnte my Arzdlyﬂs ac;
cording to that Method, but {hall
take in and include ’em both toge—
ther, as conﬁicuting oneCommon
Bulk or Mailer of the Laws of
England. Nor {hall I conﬁne my
felf to the Method or Terms of
the CivilLaw, nor of Others who
have given general 505827265 and
Analyﬁs’s of Laws but {hall ufe
that Method, and thofe Words
or Exprefﬁons that I lhall think
molt conducihle to the Thing I
aim at.

The Laws of this Kingdom dq
tefpeét either,
i 1. Civil Rights 5 or,
2. Crimes and Mifdemeanom

This I {hall fubl’citute as the
general Matter of theiLaWs of
England, noc troubling my {elf
with Criticifms or Propriety of
”Words, in which Refpeé’c the very

Word
    

T/Je ‘Preface.

Word Civil includes alfo Mat-
ters Criminal, becaufe Civil Con-
ﬂitutions give the Denomination
of Crimes, and the Rules and
Method. of their Punif‘nment5
but it {hall be fuﬂicient that I
ufe fuch Exptefﬁons as either are
in themfelves {310,061 to exprefs
«the Thing I mean or that by
my Ufage and Application of
them, I render them ferviceable
to that Purpofe and End.

I {hall therefore divide the
Laws of this Kingdom, in rela-
tion to their Matter, into Two
Kinds _:

I. The Civill’art, which con-
cerns Czw'l Rngts and then
Remedies.

2. The Crzmizm! Parr Wnich
concetns (ii/726$ eimi Mi]
clememzms.

A 4 And

 
 
 
 
 

  
 

T276 Treface.

And thefe, to avoid Conful
ﬁon, I {hall difpofe into fevetal
Scﬁiom,

And Fir/Z, I begin with the
Law as it relateg to Civil M4:-
zers.

 

The Reader is (lg/int! to add at Page 9. Line 2L
after Grievances, tbe enfm'ng Paragraph.

And here all the Learning of Parliament:
prnperly comes inJ viz. The Perﬁm: of who
it conﬁﬂs; the Meméer: of each Houfe; the
Manner of their Summons; the Place: that
fend Members to the Hou/é ’of Common: 5 and
how to be qualify’d, how eleéted, and the
ﬁalzﬁcatiom of the Eleéfets: What the Privi-
leges of Parliament‘are'; the Method of pet‘-

ﬁng Bills, évc. and how ad'oumed roro «ed
WWW- ' ' ‘ I "P g .

IHE;
 

 

THE

CONTENTS,

 

S E C T. I.
OF tbe Civil Part of the La» (in ge-
neral.) Page I
\ $501 u ’_
0ftlre Relatlionl of Per-ﬁns, and we Right
tbercby ailing. Page 5

S E C T. III.

Of ﬁtcla Right 4: relate to‘ Me King’:
Per/52:. . Page 6

SECT. IV.

Cancemirzg Me Prerogative: of the King;
‘ - ‘ Page 10

SE01

 
 

 

The Contents.

8 E C T. V.
Concerning the King‘s Rig/at: of Dominion
or Power of Empire. Page 1 I

S E C T. VI.

Of the Poteﬂas Jurifdiétionis; or, Toe
King’s Rig/Jt or Power of jnrifdz'c'fion.
Page 1 8

S E- C T. VH.

Concerning the Cenf us Regaliss or, Toe
King’: Royal Revenue. Page 27

S E C T. VIII.
Of Me King: Ternpoml Revenue, . Page; 7

S E C T. IX,
0f tbe Relative Prerogative: of the Crown.
Page 30
S E C T. X. ‘ ‘
0ftbe Subordinate Alngzﬂmte: .' And Fbﬂ,
0f Ecclefiaﬂicnl. Page 32.
S E C T. XI.

Cancerning Rinpoml Magi/from. Page 36
S E C T.
The Contents:

SE C T. XII.

GfInﬁriorrMogiﬂmtex, Sine Jurifdiétione.
‘ Page4o
.3 E C T. XIII. ;

0f toe Rig/1t; of tlze People or Snbjeéf.
" Page};

3 E c T. XIV.

0f tbe Rigbt: of Per/on: under Relation:
‘ Oeoonozniml: Andﬁrﬂ, of Hmbond and

W 2 e. - Page 45

S E C T. XV.
Concerning toe Relation of Parent and Cbild.
Page 49

S E C T. XVI.

Of toe Relation of Moﬂer and Servant."
' ' Page 50
S E C T. XVII.

Concerning Relation: Civil. Page 51

s E C T. XVIII.

goncerning Anceﬂor ond Heir. Page '5':

SECTq

 
 

 

The Contents.

8 E c T. XIX. _
aneerning Lord and Tenant. Page 5;

S E C T. XX.
Concerning Guardian and Pupil. Page 54.

S E C T. XXI.
0f Lord and Villain. Page 56

S E C T. XXII.

Concerning Perﬁm or Bodies Politick, i. e.
Corporatiom. Page 56;

S E C T. XXIII.

Concerning the Jura Rerum, and the Gene-
ml Divijion thereof. . Page 6 I

S E C T. XXIV.
Concerning Things Real, Md tbeir Dam.
nation. ‘ Page 6 5

S E C T. XXV.
Concerning Things Eccleﬁaftical or Spirio
”“1- Page 7‘

S E C T. XXVI.

Of tbe Nature and Kind: of Properties.
Page 74
S E C T.
The Contents.-

I S E C T. XXV II.
OfAcquiﬁtion of Properfy by At? in Law”.
‘ > Page 78 \
S E C T. XXVIII.
Acquiﬂtion of Property by A5 of the Party;
and Mix’d Am. Page 79
S E C T. XXIX.
Concerning tbe Right: of Tilting: Real.
Page 81
S E ‘C T. XXX.
Of Eﬁate: in Fee-Simple and Fee-Tail.
Page 82
S E C T. XXXI.

Of Eﬁam at Common Law, Ieﬁ' tbsm Lt.
beritdizce. ' Page 86

S E C T. XXXII. .
0f the Difiiztaion of Rigbt: of Eﬂdter,‘
with relation to the Pqﬂe'zﬂidu. Page 88
S E C T. XXXIII.

Touching Acquifitian and Tran/Minn of
Eﬂate‘: in Tbing: Real. Firﬂ, 3} A3
in Law. Page 92

S E C T.

 
 

 

The Contenfs’i

S E C T. XXXIV:
Co'ﬁcem‘ing Aoqueﬂf by Mean: of tbe Pm}; ‘
‘At'td Firﬂ, By Record.‘ Page 96
s E c T. XXXV.
Coucerning Conveyance: by Matter in Pais;
And Fir/i, 0f Deedx; Page 99
S E C T. XXXVI.

Of Conveyomc: by Force of Statuteu

. Page 106
S E C T. ‘XXXVII.
Conceruiug Cuﬁomory Eﬂater. Page 107'.
s E c T. XXXVIII. ‘

0f Tranﬂalion of Property by Forfeiture;
Page I 10

‘SECTL‘XXXIX. ‘
Of Wrong: or Injuriey. And Fir/Z, 0f

Wrong: to Peijﬁmr. Page I I I

s E c T. XL.
Of Wroizg: to Perform under .Relotion.
Page 117

S E C T. XLL

0f PEG-oz? in relation 0 Rigbt: ofsz‘ozgr.
And Firﬂ, Of Tbizog: eijonal. Page L20

SECL
J

Thé Contents.

3 E C T. XL“.

Toyrhz'ng Wrong: to Thing: Real; without
dijﬁoﬂeﬂing the Part}; and their Re-
medies”. ' Page 124

h S E C T. XLHL
ﬁfoxcerhiqg Wrohg: which any with them
an Amatiorzof Poﬂe‘ﬁon. L“ Pagcmg

S E C T. XLIV.

0f Wrong: that have the Countemce of
Legal Proceeding: of Chum. Page I 36

S E C T. XLV.
Camerm‘ng Remediex, and the Method of
of obtaining them. ‘ Page 1 39

S E C T. XLVI.

Remedie: at Common Law: And Fir/I,
0f thojéwithout Suit. Page [41

S E C T. XLVIL
Camerrzz'ng Remediesx at Comm»: Law h}
Suit, Page 144.

S E C T. XLVIII.
Of Procef: and Appearing. Page I48

SEC'L

 
 

 

 

The Contents}
8 E C T. XLIX.
Of Pkadin'gy . Page 136
SECI‘L
0f Mm. Page I 57
‘SECELL
Of Triab. A Page 159'
sEcr'mL
0f jxdgwent. ‘ Page I6§
SECT.Um
Of Execution. Page ‘16;
g S E C T. LIV. ‘

Of Retire]:r of Injuries 6} Error, &c.
Page 169

 
 

 

THE

ANALYSIS

 

O'FTHE
L A W.
SECT. I.

0f the Civil Part of ‘tbe Lem ( in general ).'

T HE Civil Part of the Law concernis,

1. Civil Rights or Intereﬂs.
2. Wrongs or Injuries relative to thqle
Rights. ,
3. Relief or Remedies applicableto thofe
Wrongs.
Now all Civil Rights or Intereﬂs are of
Two Sorts:
1. fun: Perﬁmamm, or Rights of Perfons.
‘ 2. 714m Rerum, or Rights of Things.
The Civil Rights of Perfons are ﬂzch as
do either,
1. Immediately concern the Perfons them-
felves: Or,
2. Such as relate to “£36k Goods and El’tati.‘
5

 
 

 

T be Analy/is of the Law;

As to the Perfons themfelves, they are
either,
I. Perfons Natural; Or,
2. Perfons Civil or Politick, i. e. Bodies
Corporate.

Pesfons Natural are conﬁder’d Two.Ways:
I. Abiolutely and ﬁmpiy in themlélves.
2. Under fome Degree or Refpeét of Re-
lation. Vide See}. 2.

In Perfons Natural, {imply and abfolutely
conﬁdered, we have thefe feveral Conﬁdera-
tions, "viz.

I. The Intereﬂ which every Perfon has in

himfelf.

2. Their Capacities or Abilities (which re-

fpeé’c their Aé’cions).

1]}, The Interel’t which every Perfon has
in himfelf, principally conﬁlis in Three Things,

"012.

"1'. The Intereﬁ he has in the Safety of his

, ”Sigown Perfon. And the Wrongs that re-

ﬂeet upon that, are, I. AJTaults. 2. Af-

r'i‘fi-‘ay's. 3. Woundings.

2. The Intereﬂ he has in his Liberty, or
the‘Freedom of hisPerfon. The Injury
whereto, is Dare/"r, and Unlawﬁrl Imprifan.
merit. ' " .

3. The Intereﬂ he has in his Name and
Reputation, The Injury whereto, is Scan-
dal and Defamation. _

As to the Other lntereﬂ of Goods and
Eﬁate, though in Truth they have a Habitute,
and are under fame Relpect to the Perfon ;
yet

i
The Andy/is of the Lat».

yet becaufe they are in their own Nature
Things fepatate and diﬁinéi: from the Perlbn,
they will more properly come in under the
7am Rurum. Vida Sci}; 2 3 , 67c.

2611)], The Capacity that every Perfon has;
which is a Power that the Law varioufiy
afﬁgns to Perfons, according to the Variety of
certain Conditions (or Cichmﬂances) where-
in they are, either To take, or To dz/imfe,

And under this Head, we have,

Fir/i, The Capacities themfelves, which are
efpecially Two; ‘ A
I; Capacities which a Man hes in his own
Right.
2. Capacities which he has in auter Droir,
or another Right. '
Now Capacities which a Man has in his
‘own Right, are either,
1. To acquire or take.
2. To alien or transfer.

And bath thefe are either,
I. Of Things perfonal.
2. Of Things real.

The Second Kind of Capacities are in am:-
DroitJ anocher’s Right; as, Executors, Cor:
porattionsJ Cit/21:4} qua Ufa, éw. Whereof here-
after.

Secondly, The various Conditions { or Cir-

cpmﬂances) of ch‘ions, with Relation to.

chore Capacities, conﬁlling of,
I. Ability. .,
2; Non-ability. B 2 Ami

II.

 
 

 

The Analyﬁs of the Law.

And all Perfon are (prefum’d) in Law able
in either of thofe former Capacities (of Ta-
king, or Difpoﬁng), which by Law are not
difabled: And thofe that are fo difabled come
under the Title of Non-ability, though that
Non-ability is various in its Extent, viz. To
fome more, to fame lefs ( as in the feveral In-
ﬂances following).

1. Aliens: Here comes in the Learning
of Aliens, as Naturalizatiom Dcniza-
tion, &c.

2. Attainted of Treafon or Felony; here
of Attainders.

3. Perfons outlawed in Perfonal Aétions.

4. Infants; here of the Nonvability of In-
.fants.

;. Feme Comm; here of their Dilability.

6. Ide0ts and Lunaticks; here of that Learn-
in .

7. Pgrfons under fome illegal Rel’traint or
Force, as Durefs, Man’e/k.

8. Villains; (now antiquated.)

9. Baﬂards; and here of Legitimation.

 

SECT.
Ike Analyﬁs of the Law.

 

s E or. II.

Of the Relation of Perﬁm,‘ and the
Right: thereby ariﬁng.

O W as to Perfons conﬁder’d in refpeé't
of Relation, the Rights thereby ariﬁng
are of Three Kinds, viz.
I. Political.
2. Oeconomical.
3. Civil.

The Political Relation of Pérfons, and the
Rights emergent thereupon, are,
x, The Magi/irate. V
2. The People or Subjeﬁ.

The Magiﬂratc is either,
I. Supream.
2. Subordinate.

The Supream Magil’rrate is either,

I. Legillative: The Parliament. (With
whofe Rights 1 {ball not here inter-
meddle.)

2. Executive: The King.

And in as much as the King is by the Law
the Head of the Kingdom and PeopleJ the
Laws of the Kingdom, eo Intuim, have lodg’d
in him certain Rights, the better to enable
him to govern and proteét his Peeple. And
although under this Conﬁderation I {hall be

B 3 conﬁrained

'5

 
 

6

The Analyﬁs of the. Law.

conﬂrained to take in and include many Rights
of Things; yet becaufe they do belong to the
King under this Relation, as King, and I have
no other Place or Diviﬁon f0 apt to difpofe
of them as this, I {hall here bring them in
together.

And the Rights that belong to the King, as
King, are of Two Kinds:
1. Suth Rights as concern his Perfon.
2. Such Rights as concern his Prerogative.

(Of each of thefe in their Order.)

 

,5. E C T. III.
0f ﬁre/.2 Rights a: relate to the King’s

Parfait.

THE Rights Which more immediately
concern the King’sPerfon, include thele
Two Things, viz.
I. The Manner of his Title, or Acqueﬂ
thereof.

2. T he Capacities of the King.

I. The Manner of Acqueﬁ: of the Regal
Title or Dignity, is either,
I. A Lawful Acqueﬁ; or,
2. An Unlawful Acquel‘i.

1. A Lawful Acqueﬁ thereof, is either,
1. Parliamentary.
2. Hereditary.

 
. The Analyﬁs’bf the Law";

" A Parliamentary Acquei’tof the Regal Title,
is either,
I. By Ac”: of Recognition, as 1 Elie. c. 3.
I W. M. Seﬂ'. 2. c. 2. (9'0.
_2. By Act of Limitation, as 7 H. 4. c. 2.
2; H. 8. c. 22.13 W. 3. c. 6.

'An Hereditary Acquei’t of Title, is by the
Municipal Laws and Conﬂitutions of this
Kingdom, when the Crown defcendsv: to the,
next of Blood, according to the Law's and
Cuﬁoms of England'in Cafes of Hereditary
Difcents. _ 1 _ ’

And here all thofeRules that havebeen obu
ﬂarv’d in the Law touching this Point, may be
inferred. .

2. An Unlawful Acquei’t of the Regal
Title is,

I. B] Uﬂdrpﬁrion; when, a Subjeé‘t by Wrcmg
invades the Crown, or intrudes upon him
that has the Lawful Right thereto; as was
done by King Stephen, King 701m, Hem]
the Fourth, and Richard the Third.

And herein may be conﬁder’d what Power:
the Law allows. to {rich an Ufurper, and
what it denies him. .

2. By Conqueﬂ; when a FOreigner either,
' I. Vanquiihes the l$ing, as William the,
Fir?! did Harold.
2,, Or {hhjeéts the Kingdom; which ne-
ver happen’d with refpeé’t to England;
ﬁnce the Romans.

B 4, The.

 
 

 

 

8.
II.

T be Analy/is of the Law. N

The King’s Capacity (as he is King) is of
Two Kinds, r
1. His Political Capacity.
2. His Natural Capacity.

As to his Political Capacity; he is a {ole
Corporation, of a more tranfcendent Nature
and Conﬁitution than other Corporations,
whereby he is difcharged from many Inca-
paciries, which in the Cafe of other Perfons
would,

I. Obﬂruéi: his Succefiion, as Alienee, 0's.

2. Difable his Actions, as Infancy; or Co-

verture in the Cafe of a Queen, é'c.

Then as to his Natural Capacity, as he is
King: The great Concerns of Government
requiring a great Aiﬁﬂance to the King’s Na-
tural Capacity, the Laws and Cuﬂoms of the
Kingdom have furnilh’d him with divers afﬁli-
ing Councils, which are of Two Kinds, viz.

1. His Ordinary Councils.

2. His Extraordinary Councils.

' His Ordinary Council are Three, viz.

1. Primmm Concilium, His Privy Council.

And here may be taken in, all luch Laws as
direct, bound, or limit the Privy Councii,
either,

I. In Matters of Publick lntereﬁ touch-
the King.

2. Or in Matters of Private Intereﬂ
between Party and Party.

2. Legale Concilium, or his Council at Law;
which conﬁﬂing of the Lord Chancellor,
Lord
The Analyﬁs of the Lauri,

Lord Treafurer, Lord Privy—Seal, Judges
of bath Benches, Barons of the Exchequer,
Mailer of the Rolls, (ﬁve. is the King’s
Council of Advice in Matters of Law.

3. Concilium Militare, His Council in Time of
War, or Publick Hoﬂility, rum.
1. InMatters at Land, £23 ﬁgﬂiﬁla
2. In Matters at Sea, the Lord Admiral.
The Jurifdié’tion of whom, Vida pa/i‘. .

The King’s Extraordinary Councils are of
Two Kinds :

I. Secular or Temporal.

2. Eccleﬁaﬁical or Spiritual.

The King’s Extraordinary Secular Coun‘
oils are, I. The Houfe of Peers; 2. The Houfe
of Commons; in their Capacity of informing,
Adviﬁng, and Councelling the King in Mar.
ters that are,

I. Publick Beneﬁts.

2. Publick Grievances.

The Extraordinary Eccleﬁaﬁical Councils
are,

1. The Upper Houfe .

2. The Lower Houfe :iOf Convocation.
And hither may be refer’d all Laws and Con.

ﬂitutions touching the Convocation.

 

II.

 
 

 

[0

II.

 

The Anabﬁs of tbe Lam.

 

S E C T. IV. » "
Concerning the Prerogative: of the King.

HAving fhewn you what Rights belong to
. the King’s Perfon, We come now to thofe
Rights whichﬁoncem his Prerogatives.

And thofe Prerogatives are of Two Kinds:

I. Direc'l and Subﬂantive Prerogatives.
2. Incidental and Relative Prerogatives.

The Direé’c and Subﬂantive Prerogatives
may be dillributed under Three Branches,
mm.

1, 7am queﬂntii, ml Summi Imperii, i. e

The Right of Dominion.
2. Pate/in: jurifdiéh'anii, ml Mixti Impern',
i. e. The Power of Jurifdiétion.

3. Cenﬁu Regain, or, The Royal Reve-

nuee

Which I [hall fubdivide according to their
Order.

See the Incidental and Relative Prerogatives
in 5651‘. 9. ' '

 
The Analyﬁs of . the Law.

 

SECT. V.

- Concerning the King’: Right: of Dominion,
or Power of Empire.

T HE yum gamma: Majeﬂ-atit, or, Rights
of the King’s Empire or Dominion, are
either,

1. In relation to his own Subjeéts; or,

2. In relation to Foreigners.

in relation to his own Subjeé’ts, they refpeé‘t,
1. Times of Peace.
2. Times of War.

And Fivﬂ, Of the Rights of Dominion,
which reibeét Times of Peace.

Thefe Rights, though they are exercifable
alfo in Times of War and lnfurreé‘tion, yet
Eeing they do more immediately refpeét the
Well-ordering of 3 Kingdom, and preferving
its Peace and Tranquillity, l {hall here iniért
them: And though they are various in their
Kinds, and {time of them feem to refer to
the Powers of Jurifdiétion, yet 1 [ball endea—
vour to reduce them to thefe Eight Heads fol-
lowing, viz.

I. His Rights in relation to the Laws.

2. In relation to Tributes and Publick.

Charges.

3. in,

1‘

 
 

 

’1 2 The Analy/is of the Law.

3. In relation to the Publick Peace of the
Kingdom.

4. In relation to Publick Injuries and Op.
preﬂions.

5. In relation to Publick Annoyances.

6. In relation to his conﬁituting the great
Ofﬁcers of the Kingdom.

7, In relation to his ordering and regula-
ting Trade and Commerce,

8. In'fuperviling, regulating, and fupplying
the Defeé’ts of others.

I. Iﬂ, In relation to the Laws of this King.
dom:
I. In the Making of Laws.
2. In the Relaxation of Laws,

A: to tbe making Laws, his Right conﬁf’ts in
Three Particulars:

I. In the making of Statute LaWs, or
Aéts of Parliament ; for though the
King cannot make {uch Laws himfélf
without the Confent of both Houfes of
Parliament, vet no Law can be made to
bind the Subjeft without him.

2. In the making of Spiritual Laws, orCanons
Eccleﬁafiical, which, if kept within the
Bounds of Eccleﬁal’tical Conuzance, are
admitted here in this Kingdom: As thefe
Laws cannot be made without the King’s
Confent, To neither can the King ordain
fuch Laws without the Clergy in Con-
vocation affembled.

So that in both thefe Kinds of Laws, the
King’s Power of Making, is only aQIw
Iiﬁed and Coordinate Power. But, I

3. n
The Analyﬁs of the Law.

3. In making and ilTuing of Proclamations,
which in fome lnﬁances are to be taken
for Laws, as in Calling Parliaments, de-
claring War, @‘c. herein the King’s Power
is more abfolute, as being made by
him alone; yet the King cannot by thefe
introduce a new Law, (0 as to alter or
transfer Properties, or impofe new Pe-
nalties or Forfeitures beyond what are
eﬁablifh’d by Statute or Common Law.

And as to his Power in the Relaxation of
Laws already made, it refpeéts either, .

I. ‘Ilzmpoml Laws; which being enaéted by
Parliament, the King cannot abrogate or
annul fuch a Law : But in fome Calés of
Penal Laws, he may, in refpeé’c of Pet--
fons, Times, or Places, lbmetimes dill
penle with them. '

Here may come in all the Learning touch-
ing Difpenlations and Non air/lama,

2. Eccleﬁaflical Leaps, wherein the King has
a greater Latitude of Dilbenl‘ation; for
if fuch Laws are not conﬁrm’d by Pat'-
liament, the King may revoke and annui
them at his Will and Pleafure.

And here all the Learning of Commend/27713,
Diﬁienﬁztime: ml Plum, and all Eccleﬁal’ticai
Defeé’rs and Incapacities difpenfed with
by the King, fall under Conlideration.

24!], In relation to Tributes and Pnblick
Charges, wherein is conﬁdered, .

I. What Charges he cannot impofe without
Confent of Parliament: And for thfis,
ee

13

 
 

14 The Andy/is of the Law.
[66 the Statute De Tallagio non concedendo,
and divers other Statutes, remaining
new Impoﬁtions.
2. What Charges he may impofe without
Confenc of Parliament, we. Real/enable
Tolls; as PaavageJ Pontage, Murage,

6'.
And here may be conﬁder‘d the Lawfulneﬂ;

of T0115, 0'0.
And of Exemptions By Prefcription.
from them, } By Charter.

341], In relation to the Publick Peace of
the Kingdom.

1. In preferving it from being broken :
1. By Inhibitions from going or riding
arm’d.
2. By ereé’dng or razing Games and
Fortiﬁcations.
3. By prohibiting Foch Ereé’cions by others.

2. In reﬁoring it when broken:
I. By fuppreﬂing Afﬁ‘ays and Tumults
with Force.
2. By a legalProfecuting and Punifhing
{uch Affrayors.

4tbly, In rehtion to Publick Injuries and
Oppreﬂ'ions.

L By reﬁraining them by Imprifoment’.
And herein conﬁder by whom, where,
when, and how, this may be done.
2., By profecuting them in the King’s Name 3
I. By Indiéﬁnent.
2. By Information,-

3'- BY

 
The Analyﬁs‘fof the Lam ,

3. By Pardoning them, as to the King’s
Profecution. ,
And herein, of Pardons, what may be
pardoned, when, how, and by what
Words, (9'0.

gtbgy, In relation to Publick Annoyances:
For the King has the great Care thereof; and
the Profecution and Punilhment of the time,
as far as they are publick, is by Law-commit-
ted to him.
And this is commonly‘ exercift'ecl about
Bridges, Ferries, Highways, (9?.

Though thefe Particulars, and ﬁrms of the
foregoing, more regularly ‘Come in under
Pleas of the Crown, and Criminal Matter:, in
the Second Part of this Treatife.

6:617, In Relation to his conﬂituting great ‘

Ofﬁcers, viz. ,

r. Cit/:1 Oﬂz‘cerr, as Lord Chancellor, TreaL. .

litter, Privy-Seal, Earl Marfhal, Lord
Admiral, Judges, (7c. g

And here may be conﬁder’d,
I. The Manner of their Conﬂitution.
2. Their Ofﬁce, Buﬁnefs, or Imploy-
ment.

2. Eccleﬁaﬂiml Olji'rers, as Archbifhops, .Bi-
ﬂtops, Deans, Archdeacons, (Tc.

And here may come in,

l. The Manner of their Conﬂitution, as
their Eleétion, Confecration, Inveﬁi-
ture, Reliitution of Temporalties, (he.

2. The

15

 
 

 

16 The Analyﬁs of the Law.

2. The Exercife of their Oﬂice, cw'z.
How far the King may enlarge, limit,
or reﬁrain it.

7:51;, In relation to the Regulation of
Trade and Commerce.

Coining New Monies.

r. Hithgét of ,Authenticating Foreign

Coin.

And here comes in all Matters touching
the Variety and Legality of Coins; and
of Contracts, Orders, and Inﬂruc’tions,
relating to it.

2. His Deﬁgnation of Places of Publick
Commerce;
As Ports, Fairs, Markets.

And here, of fuch various Learning as re-

lates thereto;
rt .
As how they are created {13; Sghggd o n.
What is a good Grant thereof; and what
not, if granted to the Prejudice of ano-
ther ; and of the Writ Adquod Dampnﬂm.
Alfo what is a Sale in Market Overt, and
of the Eﬂ'eé’ts thereof in altering Proper-
ties, é'C. And of Forel’talling, as when
a Market may be foreﬂalled, and when
pct.

3. His Right in inllituting and regulating
the Inﬂruments of Publick Commerce,
with refpeé‘t to

Weights.
Undue {Meafurea
Exceffive Prices.

at". 8:547,
.- The Andbﬂs of tbe lair.
8W], In relation to his lhpervifing, regu-
lating, and fupplyingv the Negleéts or Defeéts
of other Magilirates;
1. Of Civil Magi- 3” By Writs of Error.
ﬂrates, ELBy‘Writsof Appeal, 6%.

2. Of Eccleﬁaﬁical Magifirates; by Deva- '

lution ‘
1. Of Caufes, by Appeal to him.
2. Of Prefentations, by Lapfe.

Thus far of the King’s Prerogatives, with
refpeét to Peace: Next, of thofe that relate to
War and Commotions. ,

Thefe may be term‘d j‘am~ Militige, and
conﬁi’t,
1. In railing of Men.
2. In building of Forts.

And regard either,
i. Domeflick Infurreé’tions of his Sub»
jeas: Or, .-

2. Foreign Hoﬂilites of Enemies.

I. With Regard to his Subjeé’ts,
I. He may raif'e Men to fupprels their
Infurreé’cions by Force.
2. He may punilh them by Martial Law
during fuch lnfurreé‘tion or Rebellion?
but not after it is fupprefs’d.

2. In relation to Foreigners: Thefe Rights
are to be confider’d, viz,
1. The Power of denouncing War, and
concluding Peace. &

C, * And

 
its The Andy/is bf the Law:

And herein Leagues and Traces may
be conﬁder’d, with their various
Effeéts. ‘

Alfo what {hail be faid an Enemy.

2. The Authorizing of,
I. Publick Enron)”:
2. Ambaﬂ'adors: And,
3. Plenipotentiaries.
3. The Power of granting Oriﬂhing Let; r
ters of Marque and Reprizal.
And herein conﬁder the Inducements, .
Ends, and Bikers thereof.
4. The Power of granting Safe Con--
dué‘ts.
And here of the Ufes and Effeéts;
thereof,

 

SECT. VI.

Of the Potei’cas Jurifdiéﬁonis; or, Th- .
King’s Rigbt or Power of juriﬁlirfﬁom

Hltherto of the yum Summi Imperii, or r
Rights of Empire or Dominion : Now I
we come to the firm mixti Imperii, or Poteﬂa: :
’jurifrliﬁionis, wherein the King generally
aéts by his Delegates, Oﬁicers, or Reprefenx ;
tents.

This Pateﬂm yuri/‘Jiffionis, or Power ofi~
{ﬁurifdiéﬁom ﬂeems principally to be of Two.- y
inds, viz.
q. Extraordinary.
2. Ordinary. The ‘

 
1'59 Army: VWLW
, (The. :Extraorﬁ‘ .gty Power. ofJurifdirfﬁon
’eﬁdr‘ng .in ,che“: in? though for. the moﬂ
artbexercifw by: hs Ofﬁcers and Miniﬁers,
conﬁﬂs in Three Things ;
1.71!) commanding home any ow; Sub-
ieéts from forergniParts; J

‘ 2-111. prohibigag any of his, Shbjeéts from '

. going‘beyo the Seas:
, ~ I. By Procilafmatlion. , y ;
2. By the fpeci‘al Writ of Ne. tapes: Reg-
:. .mm- ,7 ‘
3.519., oommandjng .any of bjsﬁnhjeéts to
{undertake 511 Ofﬁce or Dignity within
theRbalm. ; . .
’ - And here the Learning touching thefe may
be inﬂamed, as where, when, and h‘thhele
Commands or Inﬁruﬁions are to iffue; and
when; and in what Cafes not; what the Pe-
nalty ' if not obeyed, 52nd in What Manner
rimmed. * , -*«

it

" The King’s Otdinéry or-Ufual Power of

"urifdiétion, is of Two Kinds,
I. Ecdeﬁaﬁicai.
2. Temporal or Civil.

I. Ordinary Bcoleﬁaﬁical Jurilﬂié’tion, or
tether Jutifdié’cion touching Eccleﬁéﬂical Mat-
ters. ‘As this anciendy belong’d to the Crown,
but was for IbmeTime ufurped by the Pope,
to by the Statute of 26 H. 8. cap. . it was
again réftbred to the Crown.

' And this is of Two Kinds;
I. Voluntary Jurifdiétion.

2,, Contentious Jurifdiétion.
C 2 LEched

$5

 
'36 The Andy/is of the Law}

1 . EcCleﬁaﬁical Voluntarmeifdié’tion, may
be exerciied by the King in feveral In-
ﬂances relating to Eccleﬁaﬂical Matters:
As,

i. In convening Eccleliaﬂical Affemblies,
as Synods, Convocations, (we.

2.» In iuch Acts of Voluntary Eccleﬁa~
Iiical Jurifdiétion, wherein the King
has a. Power to concur with the Ordi-
nary. .

3, And in many Cafes, to do what the
Ordinary cannot do; as in confiitu.“
ting Appropriations, uniting of Churn
ches, ereéting Eccleﬁaiiical Beneﬁces

far Dignities, difpenﬁng with Irregula-

, rities,‘ exempting from Eccleﬁaﬁical
Ju‘tildiétion, with relation to his Free
Chapels; in pardoning Crimes rela-
ting to Eccleﬁaﬁical Jurifdié’tion, and
the Execution of ' their Sentences,
wherein a private Intereﬂ is not con-
cern’d; in fufpending the Effects of
their Sentences (even) in Caul'es cri‘,
minal; and an inﬁnite more of the
like Nature.

This is a large Field, full of many T i-

tles, and of various Learning. "

2. As to Eceleﬁaﬂical Contentious Jurifdi,
‘ etion-z ’Tis true, the King meddles not
with it as to the Exercile thereof; for
that would be both an Injury to the Ex:
cellency of his Majeﬁy, and alfo 3
Wrong to the Subject in depriving them
from their Right of AppealJ if there be
Carafe

 
17;} Aizaly/is‘ ‘o‘f‘ iii} Lam.

Qaufe for the lime; for if the King ~

{hould be the Judge upon the ﬁrﬁ In-
Rance, the Party cannot afterWards ap-
peal. ‘ f ‘ .

,And therefore, in Caiés of Eccleﬁaflical
Contentious Jurifdiétion, his Power is
exercifed by Way of Interpoﬁtion, in
Three Inliances, viz.

jurifdz'ﬂianm Ordinau

1. By his Power riam, Er
of committing jurifdiélomm , Delega.
tam, - '

To Commiﬂioners of 'his own Nomina-
tion under the GreatSeal. '

2. By {ufpending their Proceedings; which
is done, not by his immediate Authority,
but the Adminif’tration of his Temporal
Courts, who, by a Power derived from
the King, fufpend their Proceedings by
Prohibition, if there be Caufe.

‘ 3.‘ By thelafi Devolution of Appeal;where~ '

in, .though the King himfeli does not
judge in Perfon, yet he appoints Com-
mifﬁoners under the Great Seal to re-
ceive and determine the Appeal. t

And thus much of the King’s Eccleﬁaﬂical
‘ Iurifdiétion. : ‘

Now as to the Temporal or Civil Iurifdi-
aion of the King: This, as well as his Ecle.
ﬁaf’tical Jurifdié’tion, is of Two Kinds, wire.

1'. Voluntary.
2. ”Contentious.

C 3 1. His

" 2’1

 
 

 

'2 17516;. Aaquﬁs 9f; the. Lax;

1}]! ‘His Wluat‘arj Témgaml furifa‘iﬁion con;
[i 5; . e. . , \

Iﬂ', In ereéting of Courts by hisGreat
863%, 12) that they‘be Courts of the Com-
mon Law; for aCourt of Equity cannot
be-now ereéted but by Aéf‘df‘ Parlia—

ment. ’ ‘

’ OJ

2‘11}, In the Emilia): and Collation of,
1. Iurifdjétions'. ‘ ' " .. *
2. Regaiicies.

3. Liberties.

4. Franchifea

5‘. Exempgiohs.

6. PriVileges :' And,
7. Dignities, ﬁz.’

I. In waiting and Collating of juré/‘di-
ﬁz‘om, vim. ‘ ‘ ' < ‘
I. Exempt Intifdiéﬁons.
2. Non-eXempt Jurifdiéﬁons.
1. Exempt jurgfdifliom; as the Jurifdi-
étion of Counties Palatine, "Jurifdi-
«r, é’cion not to be impleaded extra Mum,
Conufance'of Pleas, (92-. , '
2. Nay-exempt furifdiéiiom; as Leets,
'-Toms, Power to hold Pleas, ér,

2. Inithe Collation of Regal Power's, is bf
‘ coining Money, pardoning Offenders;

‘2" _ coﬁﬂitutingjuﬁices, (9'5. »
*But fee how far there are refumed by Stat,

3. it; the Collatieﬁ' of Libertia, as Forcﬂs,
, Parks, VCha/Iéhs, Warrcns,‘ Ferries, Gaols,»

3;; a « Re:
The Analyﬁs of Me Lair;
Return of Writs, Ports of the Sea, Fairs,
Markets, T0115, and many others of
like Nature.

4. In the Collation of Franchiiés, ascrea-
tin of Free Boroughs, giving Power
of ending Burgeifes to Parliament, crea-
ting and dividing Counties, ereé’cing of

4 Corporations. '

5. In Exemption: of all Kinds; as from Suit
at the County, Torn, or Hundred Court;
alfo from ferving on Juries, and from
paying Tolls, Cuﬁoms, Subﬁdies, (97:.

6. In the Collation of Privileges; as Ende-
nization of Aliens, Privileges againi’t Ar.
reﬂs and Imprilonment, and Enfran-
chiﬁng Villeins by his Prefence formerly.

7. In the Creation and Collation of Digni-
ties; as Dukes, Marquiﬂés, Earls, Vii1
counts, Barons, (To.

And thus far of the King’s Temporal V0.
luntary Jurifdiétion. ' '

II. As to the King’s Temporal Come».
:iou: jurifdiﬁion before mentioned: This is
not exercifed by the King in his own preper
Perfon, for the Reafons before given in the
Head of Eccleﬁaﬂical Contentious Furifdz'ffiom;
for though lnﬁances have been of the King of
England ﬁtting in the Court of King’nBemb,
and though the Stile of that Court is Comm
Rage, and the Chief Juﬁices there were an-
ciently called Locum Tenant: Domini Regs}, yet

C 4 when

 
 

 

 

2‘4 The Arzdlﬂi‘s of the Lari).
when the King fate there in Perform, the Judg-

ment or Opinion of the Court was always
given by theJuﬁices.

The King always exercifes this Contentiom
Temporal furifdiﬂion by his Judges or Juﬁices,
which he creates or conﬁitutes Four Ways:

1. By Writ, as the Chief Juﬂice of the
King’r—Bemb. «

2. 8} Patent, as the ordinary Judges of the
Eﬂablifhed Courts at Mﬂmz‘nﬂer.

3. B] Commilﬂon, as Juﬁicesv of Ojer and Ter-
miner, Gaol‘deli'ver], Aﬂize, and Ni/i prim.
Vide inﬁa.

4. B} Charter, as the Judges in Courts of
Corporations and inferior Courts.

 

sec;
The Analyﬁs of the 1de; ‘

 

S E C T. VII.

Cumming the Cenfus Regalis; or, T!» '

King’: Royal Revenue.

I Come now to fpeak of the Cenﬁu Regalit,
or the King’s Royal Revenue: And here
I {hall not lay much of his HoulEs, Manors,
Lands, FeeFarms, or Free Rents, becaufe thofe
are common to him with ether Perfons; but I
{hall only {peak of his Royal Revenue, or
Cenfuale: Pmrogative, and that Cenfu: Rega'lzét,
of which the Law takes Norice as of com-

mon Right belonging to him, as basis
King.

viz.
I. Eccleﬁaﬂical.
2. Temporal.

His Eccleﬁaﬁical Revenues are of Two
Kinds;
I. Extraordinary,
;. Qrdinary.

1. His Extraordinary Revengcs Eccleﬁaﬁi-
cal are thofe Subﬁdies and Tenths, and
Other Eccleﬁaf’tical Supplies granted oc-
calionally by the Clergy in their feveral
Convocations. ' ‘ .

Note,

And the Kinds of thole Revenues are Two;

25 '

 
 

 

 

3:25;: 1729 Ambﬁs- of the Law:

Note, In thofe Cong/[owl Supplies the Law
takes Norice, That the King has
an Inheritance, though depending up—
On the Bounty of‘ his Subjeé’ts, and
therefore he may grant an Eaemprion

' from them; as likewife he may do to
particular Perfons from Temporal Sub-
ﬁdies hereafter mentioned for the fame
Reaibn.

2. His Ordinary Revenues Eccleﬁaﬁical are
likewife of Two Kinds; ,
1. Confiant or Annual.
’2, Contingent or Cafual.

The Can/fan: at Annual Revenue Eccleﬁa-
mica], is. his Tenths of Eccleﬁaﬁical 'Bene—
ﬁnes, ExtraparochialTythes, and tome other.
Things of Eccleﬁaﬂical Nature, that polﬁbly
mighncome to hint by the Diffolution of Mo-
na ties. " -

' Hither may be referr’d Proxies, (Procuraé
tions), Petitions, Tythes, ApprOpriations,

?

é'c.

The Caﬁml or Uncertain Eccleﬁaﬂicai Re-
venues are,’ ‘ ‘ '

‘ I. His Firi’c Fruits of a“ the Eccleﬁaﬂical

gljeneﬁces ; fettled in him by Stat. 26 H8.

z.~The Temporahies of’Bithps', which

‘ though they are in the Crown by rea-

fon "of the King’s Right of Patronage,

Yet I may call ’em Spiritual, heard:

they are Part of the Revenues of an Ec-

deﬁaﬂical Corporation; And on the

fame Reafon, i ' ' " '

’I 3° cote
like: AIM-1M5 «aim Lang;

3, Corraalz'e: alfb; as being of the Founda-
tion of 'Eccicﬁaﬂical Corpotations. '
4. And alfo Lapﬁ: i: felf; which though
‘ it be not reckoned a, Revenue, .begaufe
not to be fold, yet it is‘equivaleat to 3
Revenue; fqr itryields a Prefemnem {91‘

A

his Clerk.

 

SEpm’wm
Of the Kikg’»; 222217”ng Remake. .

I Come now go that; Part of the King’s
Cenfu: Regali: Which I'caﬂ Temporal : And
this is likewiie of Two Kinds;
" I. Extraordinary. "

2. ordinary. /-

I. The Extraordinary Temporal Revenue
may be further divided into,
‘ ‘ r. The Ambient.
2. The Modern.

The Ancient Temporal Extraordinaq Reve-
" nues arevof ﬁveraiKinds, as,‘ ' " ‘
1. Hidage, Carnage, Sewage.-

2. Aids :-' Ad Corpu: redimen’qfum, A41.
ﬁliam ﬁrimogem’tm Militmﬂciendum,’
Adﬁliam primoge’nitqm Maritandam.
The M02075 are the Subﬁdiﬁ and Supplies
5 graﬁted'by Parliaments. - ' i

2' The Om’imi‘] Cenﬁu Re 313: ﬁmﬁgmlj: is
aifo of TM) Kinds, viz. g '
‘3 1. Common. .
2. Special. ., 1LT}:

TL~<~V - k
a... ‘
: b . u -v

1’. '4;
i l
| ,9‘
«1
én.

 
 

{7&8 ‘ The Aﬂdyﬁrof the Law.

I. If}, The Common Can/Eu Raga Ii; ﬁmgorali: is

either, Certain, or Cafual.

1. Certain ; as his Rent: and Demﬁu, which
are either, '
'L. Newly acquir’d by Diﬂblution, Sur-
render, Exchange: Or,
2. Ancient; as, Antigua Dominic Co.
rome, i. o. Ancient Demefns.
Here infert What‘they were, what the
Tenants Privileges wereJ 6ft.

2."The Cofual Ordinary Temporal Reve—
nues; as,
_ Proﬁtsvof his Tenures, and the like,

ﬂ. 2611], The Special Ordinary Cenﬂu Regalirg
which in its Original was annex’d to the
Crown for the Support of the Kingly State
,and Dignity; and this is of feveralKinds,
we. r

1. Pameyance, or Buying at the King’s
Price; which is {ince taken away.

2. Prifage, i. e. One Tun of Wine for eve-
ry Ten Tuns laden in every Ship; and
from Aliens, in lieu thereof, Two Shil~
ling for every Tun.

Here add who are exempted from
Priﬁzge, (91:.

3. Cit/tom, great and fmall, Magoo (7' 14’3-
tigua Cat/lama.

4. Bone Vacantia, as Wall's, Strays, W'rec.
cum Mario.

5. 12014le11, as Whaic and Sturgeon.

6. Bone Forixfaﬁo, ml Conﬁfcata; as,

x, Bone Pdomlm, 'ch Paloma; de {a
- "" 2.. Bone
Ilse. Aozolyﬁsioﬁ :5: Long; 23

2. Bonn Fugitiwrum.

’ Bona Utlagatorum, (’9- in Exigcndi:
p0 torum.

7. Royo Efoboat, as,

1. Term Normannorum.

2. Terrie Alieniginorum.

3 Term Proditorum’.

8. Royal Minot.

"9. Maritime Increaféx, by tcafon of Iﬂuvio
Maris.

10. Proﬁt: of his Courts; as,

1. His Fees of the Seal.

2. Fines upon Original Writs.

3. Poﬁ- Fines, or Pines pro Licentia Cox.
cordondi.

4. Fines for Mifdemeanors, and ‘thofe
are either Common or Royal.

5. Common Fines on Vills, Townfhips,
or Hundreds, for the Efcape of Mur—
derers, Felons, and the like.

6. Amerciaments.

11. Cuﬂod] of Idem and Lunatick: Lama’s:
The latter upon Account, not (0 the
former.

12.1’roﬁt: of 61': Forejh.

13. Treaﬁm Trove.

 

SECT.

 
§6 TbeAmqu‘ 1])? L41?

SECiIX
Of the Relative Prerogdtive: bf tbs? Gown.

HUS far have Igone 'with the Dina
T or Sub/ianti've Prerogative: of the Crown:
Now I come to thofe. that are Dependant and
Relative, which'are of feveral Kinds, viz.

He Prerogative: :

I. Of his Prefence, in relation (0‘ Breach ofthc
Peace, Séifure of Villains, Arrgﬁs, ﬂ‘c.

2, 0f bi: Poﬂéﬂiom: That no Man can en-
ter upon him, but is drivenjrohis Suit by
Petition. ., And here of Travcrfe, Man.
[ham ale Droz’tJ Amwem Mam“, é’c. when,
in what Cafes, and how to bebrought.

3. of hi: Demefm; The Rights and Ezemp-
(ions of Ancient Demefn. V itle ﬁlpra, p.28:

4. Of bisGmnts, how to be expounded.
5'. Of bi: Suits; as,

I. In what Courts, and Elcéﬁon of

Courts.

2. In What Writs.

3. In his ProceE.

4. In his Pleadings.

5. In his Judgments.

6. In his Executions.

: 6. Ofbi: Debtor: and Accountantx, in their
Debts and Accounts. 7. In

 
. The Andy/is of the but;

7. In relation to bi: Treaﬁcre, and of his
Ofﬁcers imployed therein.

8. In relation to. Per/21m related to bit»; as,

1. His Queen Conﬂw ; and here of her
ﬁpamte Capacity, her Rem, Arman
Regime.

2. His Children; his eldelt Son, eldelt
Daughter, (57:.

3. His Miniﬂets attending his Perfon,
or his Courts, or his publick Service.

And herein,
1. Of Privilege.
2. Of Proteétion.

And thus I have gone through the Anal/{z},
.or Scheme of the King’s Prerogative; by
which (though it be but haﬂily and imperfeé’cly
done) may be feen, of what vaﬂ Dimeoﬁen
this one, though great, Title of the Law is,
and what a vaﬁ Number of great and conﬁ-
derable Titles fall into its inﬁnnuch, that if I
{hould purfue any one of thefe fubordinate
Titles, though it might feem but narrow, and
here exprefs’d but by a Word or Two, as
Wreck, Wm‘f, Toll, Cuﬂom, &c. there is not one
of thefe, but in the bare Andy/i: of it, and of
the ﬁveral Incidents and Rivulets that would
be found to fall into it, would grow as
large as this brief Abftraéi: of this great Head
has done, and it may be much larger, as the
Capillary Vein: and Arteries in the Body take up
more Room and Extenﬁon than the great
Trunks, out of which their ﬁnall Ramiﬁcations
are drawn.

1 S E C T.

31

 
 

‘32

Ike Andy/i5 of the Law.

SECT. X.

0f the Subordinate Magi/irate“ And
Filﬁ of Eccle/iaﬂical.

THUS far of the Supream Magi/irate,
and of the Right: annex’d to him by
reafbn of his Ofﬁce: The nexc Conﬁdera-
tion is of Subordinate Magi/irate:J which I
{hall conﬁdcr in the flame Method as the for-
mer, we. not only in their own Perfons, but
allb in thofe Right: they have annex’d to them
by rcafon of their Ofﬁces or Magiﬂracy.

A" Subordinate Magiflmq is derived from
the Supream, either immediately or mediately,
either by exprefs Grant from him, or by fome—
thing that implies or fuppofes it in its Original,
'viz. Cu/lom or Pre,"bription: And this Magi.
ﬁracy may be diﬁinguilh’d into thefe Kinds,
we. -

I. Magiﬁrates Eccleﬁaﬁical.
2. Magiﬂratcs Temporal.

I. Eccleﬁaf’rical Magiﬂrates: Such namely
as have a Jurifdié‘tion annex’d, are of Two
Kinds;

‘ I. Ordinary.
2. Excraordinarf.

3 The
The Andy/is of the lair;

The Ordinary Eccleﬁaﬁical Magif’trates are
alfo of Two Kinds, 7/12..

1. Such as have Eccleﬁaﬂicaljurifdiétion
annex’d to their Places and Ofﬁces
primarily and originally, as“ Archbi.
mops, Bilhops, Archdeacons.

2. Such as have theirJurifdiétion by Sub.
ﬁitution and Delegation from them,
as Chancellors, Ofﬁcials, SurrogatesJ
Vicars General, Guardians of the Spi-
ritualties, érc.

The Extraordinary Eccleﬁaﬂical Magiﬂrates,
are certain Perfdns appointed by the King’s
Commiffion for hearing and determining
Matters of Eccleliaﬁical Conuzance (the
King being fupream Head in Matters Ec‘
cleﬁaftical). And this is either,

I. In the Firﬂ Inﬂance, fuch as were an-
ciently Commiﬂimer: in Matter: Etc/ea
ﬂaﬂical, either 44’ miner/albeit)»; Cau—
ﬂzmm, or in particular Cafes.

2. In the Second Inﬁance, as Commi/L
ﬂow If Appeal, and of Review.

And becaufe thofe Magil’rrates have Ec-
cleﬁaﬁical Iurildié’tion annexed, here
might be brought in the whole Parti-
culars thereof, and amongﬂ ’em prin-
cipally thefe, rw‘z.

I. In Matters of Crime, as Adultery,
Fornication, Inceﬂ, (Tc.
2. In Matters of Interefz‘; as,
D 1. D:

33

 
34, The Analyﬁs of the Law.

1, De Teﬂamem‘is @‘Admini/lmtionum
Commiﬂiﬁm. (Here ofthat Matter.)
’2 De Matrimonio 0' Divartz‘o: And
here, who may marry, what is a
lawful Marriage; the Kinds of Di-
vorees, and their Conﬁquences or
Effects;
x. In Dillblving, or not.
2. In Baflardizing, or not.

3. In Cafes of general Baﬂard], when
Written to by the Temporal Courts.

4. In Cafes of Tythes.
5’. In Cafes of Dilapidations.

6. In Cafes of Ability of Clerks, Infﬁ-
tution, Deﬂitution or Deprivation, Sui:
penﬁon, SequeliraritmJ dove, of Ecclc.
ﬁaltical Beneﬁces.

7. Of the Difference between :‘f’urz‘fa’L
(firm Vbz’unmr], as Admillions, lnil‘i-
tutions, Probate of Wills, Commiﬁion

of Adminiﬁrations, and Contentiomjfu-
rifdiﬁion.

8. Of their Sentences and Coertion,
namely Excommzmiwtioﬂ, and the Ef-
feéts thereof, in reference to,

I. Difabling the Party.
2. Imprifoning the Party.

9. The Method of rel’training the Ex-
ceeding of theirJurifdiftion;
1. By Prohibitions.
2. By Preemmxirc.

 

 
jbe Amzﬁlﬁs of the Law.
Io. The Means of Redreﬂing their Er-

1-01.55 ~- -
By Appeal: The Method and Ef—
fec"ts thereof. ‘ .

II. Of _the feveral Courts belonging to
their Everal Jurifdié’cions ; 3’s,
To Archbifhops, their Court of
Audience, Prerogative Court,
and Court of Arches. ,
To BiIhOps, their feveral Conﬁﬂo-
ries, and Chanceries, theirChan-
cellors, &c.

‘12. Their Power of Viﬁtation. To what
it extends :

. , Spiritual.
To CorporauonsiLay.

When to Hofpitals.
When to Univerﬁties, (évc.

 

D2, SECT.

3:5

 
 

36

 

The Analyﬁs of the Lawl

 

S E C T. XI.
Concerning Temporal Magiﬂmter.

T 111(E Temporal Magiﬁratcs are of Three

inds, rviz”
1. Military.
2. Maritime.
3. Civil, or Common Law Ma giﬁrates.

i. The Military, were the Conﬂable and Mar-

fhal, whofe PoWer (as far as the Common
Law takes Notice of it) conﬁﬁed of Two
Parts, viz.

I. Of a Kind of Mixtum Imperium, which
principally was for the Prefervation of
Peace, and Ordering the Army in
Time of War.

2. AJurifdié’cion belonging to their C0urt~
Martial: Whereof before.

2. The Maritime, is the Admiral, and thofe

deriving Power under him. Their Power
likewifc conﬁﬂs of,

I. A Kind of Mixtum é. Subordinatum
Imperium overthe Ofﬁcers and Seamen,
efpecially in the King’s Fleets and
Yards.

:2. Poteﬂatem jurifdié'ﬁonix, in relation to
Matters ariﬁng upon the High Sea.

And

 
The Analyﬁs of the Law;

And here of the Admiral’s Jurifdiétion,
and the Remedy, if he exceeds in it 5
I. By Prohibition.
2. Action on the Stat. 2 H. 4.

3. The Common Law, or Civil Magi/irate; I
mean fuch as are inllituted either by the
Common Law, by Statute, or by Cuﬁom :
There, in relation to Things Temporal, are
Various.

And becaufe thefe Magil’trates conﬁl’t
not only of natural Perfons, as they are
fuch, but of natural Perfons conﬂituted in
fome Degree of Empire, Power, or Jurif-
diction; here will aptly fall in the Diverﬁty,
the Juriltliétion and Powers of the feveral
Courts, and of the Ofﬁcers, both Mini-
ﬁerial and ]udicial. Thefe, though 1 {ball
not ptofecute in all their Branches and Ex-
tents, yet 1 {ball give fome lhort Account
of them, viz. ,

The Subordinate Civil Magil’trates are of
Two Kinds:

‘ 1, Such as have not only a Civil Power,
which I may call Pottﬂatem mixtz' Imperii,
but alfo have a Power of Jurifdiétion.

2. Such as have a Kind of Civil Power, or
Mixtum Draperies»:3 but Without Jurifdi-
éﬁon. Vida SHE}, 12,

x. As to the former:

Toe Perﬂm: that exercife this Power or
Jurifdié‘tion, are called judge:, or
Judicial Officers.

1) 3 The

 
 

‘38 The Analjﬁs of the Law.

The Places or Tribunals wherein they
exercife their Power, are called Courts.
And the Right by which they exercile that
. Power, is called j‘urzﬁliﬁz‘on.

This therefore yields us thefe Conﬁderat‘ions,
we.

The Court: tbemfelrvex, what they are, how
they are conﬂituted.

What their juréfdiélion is, and the Extent
thereof.

W/ao the judges are, and how made, whe-
ther by Commiﬂion, Charter, Pre-
lcription, Ctrﬁom, or by Courfe of
the Common Law. ‘

1, The Courts are of Two Kinds;
I. Courts of Record.
2. Not of Record. ‘

Firﬂ, Of Court: 0f Record, there is this Di.-
verﬁty, @213.
r. bupream.
2. Superior.
3. Inferior.

tﬁ, "I he Suprerzm Court of this Kinngm is
the High Court of Parliament, conﬁﬂing
of the King, and both Houfes of Parlia‘
ment.

261(9), Thole Court: I call Superior, are indeed
of feveral Ranks and Degrees, and every
one neverthelefs are to keep within the
Bounds and. Conﬁrzes of their (everaUU—
rifdié’tions by Law aiﬁgn’d them. And
they are,

I. More Principal.
2. Lefs Principal. I. The
The Analyﬁs of the Law.

I. The mare Principal are, .
The Courts of the Lords Houfe in Pap

ment.

(Chancery.
The great Courts at%King’:—Bem[7,
I/Veﬁminﬂer', as, CommomPlem.
kExcbequer.
Ad Communia
. . Placim.
Juﬂxces mneranc, \ A 41' P la”. n: Fo-
reﬂée‘
2. The Zef: Printipal’ are-fuel] as are held,
. GaoLdeiivery.

' Oyer é“ Terminer.
1 . By Cummzﬂim. Amze.
Niﬁ prim.
And divers others,
z. 3} Cu. As the Courts ‘ Lamaﬁer.
ﬂow, or of the Coun-3Cbe/fer,
C/mrm’: é tiesPalatineof Durham.

‘ f Grand SeHions.
3. By Venue of Ail Sewers.

c Parfizzmem‘, am] .
{/55 King’s Canimzf {Lifuiees of
ﬁW: As the Courts A ‘33 ‘.
of nd dwers
L Others.
361"]: Ifg‘ur'z'ov-Court: 0f Record. Though there

be a Subordination of moi? Courts to
fame Other, yet for Diﬂinéﬁon’s Sake I

“13" C3.“ (ho-1e Infevior Court: which are

ordinariiy f0 Called ; as,
Corporation Courts,
Courts Leet.
Sheriffs Toms,

D 4. Sawﬂy,

39

 
 

40

The Analyﬁs of the Law; ‘

Courts Baron.
Secondly, Court: not ofgCounty Courts.
tharal are divers: As, Hundred Courts.
R. And Others.

But Item not folicitous of purﬁling this Mat-
ter of Court; and their yunfdz‘éz‘zon over-large-
ly; became all the Learning of them is alrea-
dy put together in the Trazél‘ate: of Crompton,
my Lord Cook, and others, who have written
0f the furifa’zéiion cf Courts.

 

S E C T. XII.

0f Inferior Magi/hates, Sine Jurifv
didtione.

T now follows, that fomewhat be (bid of

theft: Magil‘rrates that have a certain Impe-

rium, but withoutJurilo‘iétion ; and thefe are
called Mimﬂe’rial 015956”.

Some Olﬁcersiodeed are {imply Minif’terial,
as Clerks and Ofﬁcers in Courts, Cuﬂor Bre-
vm'zmarJ Prethonotaries, the Remembrancers
and Chamberlain ofthe Ext/367:4”, éc.

Btrt thefe, though they have a Superinten—
dzmcy over their Subordinate Miniﬂers, and
a Minifterial Adminiﬂration in Courts of Ju-
ﬁice and elfewhere, I {hall not meddle with
in this Place, but refer them to the feveral
Courts to which they belong.

For

 
The Analyﬁs o] the Law: 4.1: t
For thofe that I here intend are of a more

publick » and common Kind, and are princi-
pally thefe, viz.

I. The Sberz'ﬂ' of tbe County, who is the
greateﬁ Miniﬂerial Ofﬁcer; and I there-
fore call him a Magiﬂrate, becaufe he is
a Confervator of the Peace of the Coun.
ty, and executes the Ptoceﬁ of the King’s

ourts.
Here are conﬁderable,
How conﬂituted:
How dif'charged :
What his Power, his Ofﬁce, his
his Duty. .
This is a large Subjeé’c: See thole
that hate mines of this Oﬁice.

2. Mayor: 9/" Corporation:. And here of
Heads and Governors of Colleges, (91:.

3. Con/fables, and Head Can/fables.

Thefe, though they have not any Juril:
diction to hold Conuzance of any FaBt,
yet are Confetvators of the Peace, and t
have a Kind of Mixtum Imperium rela-
tive to it.

4.. Baz'hﬂ: of Liberties, Serjeant: of th Mace,
and all that have a Power veﬂed in
them by Law‘for the Execution of In-
Rice, are within the Precinéts and Ex-
tents of their Everal Ofﬁces a Kind of
Magiﬂrates; for a Subjeﬁon is by Law »
required of others to them, in relation to
that Power wherewith they are inveﬂed,
and the Execution thereof.

x Thus

 
 

42 The Andy/is of the Law.

\ Thus far of Magiﬂratcs both Supream and
\ Subordinate, and the feveral Right: that are
Intuit» é fub ratione Oﬁcii, anneXed to them.

 

A

S E C T. XIII.
0f the Right: of tbe People or Subjeﬂ.

HAving gone through the Dit’iribution of
Magi/hates, I come now to the Other
Term of Relation, nameiy, of Subjeéh.

And the Right: of Subjeﬁ: are of thefe'" 1 we
Kinds, viz.
Right: of Duty, to be perform’d.
2. Right: of Privilege, to be enjoy d.

I. 1/}, As to the Firﬂ ofthefe they are {ugh
Duties as are to be paid or perform’ (1 by
them; either,

I. To the King, as Supream Executive
h/Iagii’trate: Ci,
2. To Inferior or Subordinate Magiﬂratcs.

The Right: or Dutie: to he perform’ d by the
Peopie to the King himfelf axe

I. Kerr/creme and Honour, Fidelity and
Subjeﬁion

All which come Under the Name of
Allegiance; and the Exrent of this
is decl MFSd and Aﬁurancethereof gi-
ven. by the Oaths oi Ailey giance, é‘c
of Sup em my by I Elia. of Olvezlieme

by 3 f1» P
2. 5!)”

 
1' [2e Analyﬁs of the Law.

2. Payment: of rho/2 Rights and Duet,
Culloms, Sublidiesﬂc. which either

by the Common Law, or by Aft

of Parliament, are fettled on the
King.

The Right: to be perform’d to Inferior Ma-
ﬁrates, are,

I. Re-verence and Re/pefi‘ to themJ an

cording to their Place and Autho—
my.
2. A juﬂ‘ Sulajefiion to their lawful
Pave/er and Authority, as far as by
. Law it excends.

211]}, The Rig/Jr: am! Liberties to be enjoy’d
by the People, both in relation to the King)
and all his Momma Magiﬁrates, are,

That they be proteéted by them, and
treated according to the Laws of the
Kingdom, in relation to,

1. Their Lives.
2. Their Liberties.

3. Their Eﬁates.

And here falls in all the Learning upon the
Stat. Oi. [Hague Charm: and Charm de Fore/4a,
which concerns the Liéert}: of the Subjeé‘t,
Clbecially Magma Charm, mp. 29. and thofe
Other Statutes that relate to the Imprifonment
of the .Subjeet without duel’rocefs of Law,
as the Learning of H45353C07‘PM5’59 and the Re-
term thereupon ;

Where the Party is to be bailed.

Where to be remanded.

Where tp be dilEharged.

Hither

II.

 
'44. T he Analyﬁs of the Law?

Hither alfo refer thofe Law: that relate to
Taxes and Impoﬁtions; as,

The Star. De Tallagz'o non concedmdo.

The Petition of Rigbt, é'c.

Aifo, the Statutes and Laws concerning
Mmpolies.

Commiﬂions of Martial Law.

Commitments by the Lords of the Council.

And concerning the Trial of Mens Lives,
Liberties, or Eﬂates, otherwife than ac.
cording to the known Law: of the Land.

Theie, and many more of this Nature, are
common Heads of thofe Liberties and Right:
that the People are to enjoy under the Magi-
ﬁrate.

And thus far concerning the Capim Legix, in
reference to the Political Relation 0f the Ma-
giﬂrate, both Supream and Sukordz'rmle of the one
Part, and the Subditi or Subjec‘? on the other
Part: For though Subjeéi, in a more ﬁriéi: and
peculiar Senfe, is the Correlative of the Prince ;
yet in a more large and comprehenﬁve Senfe,
it is a Correlative to any inferior Magiﬁrate
alfo, according to a more iimitted and re-
ﬂraimd Subjeé’cion. ~

 

SECT.

 
The Andy/is of the Law:

 

S E C T. XIV.

0f tbe Right: of Petfom‘ alder Relatiam
Oceanomical: And ﬁrﬂ, of Husband and

1fe.

THus far of the Right: of Perfons under a
Political Relation: Now concerning the
Right: of 'Perfons under a Reiation Oceano-
mz‘cal. ” ,

And they are thefe Three Pairs;
x . Husband and Wife.
2. Parent and Child.
3. Mafter and Servant.

And I {hall here more once for all, That'in
Oeconomiml Relations, as in the former, I [ball
out only take in the Perfons themfelves, but
alfo thofe yum Rerum that concern them
under that Relation; which though they
may be of a diﬂinc’c Conﬁderation under jam
Rerum. yet in this, and what follows, llhall
(as‘befOte I have done ) take in thofe 7am Re—
turn that have a Kind of Connexion with the
jun: Perﬁnamm, under their feveral Rela-
, nons.

In the Conﬁderation of this Relation of
Hmband and sze, are thefe Things conﬁdera-
ble, «Jim.

I I. In

~ 4:

 
 

 

$6 2726 Analyﬁs of the Law.

I. In relation to the Perfons themfelves.

2. In relation to certain Connexes, Con.
fequences, or Incidents, belonging to
Perfons under this Relation.

I. Iﬂ, As to the formerJ theft: Capim Lpgi:
and legal Enquiries fall in, viz.

I. The Perfons that by Law may inter-
marry, the Limits whereof are prefcri-
bed by the Stat. ;r H. 8. reﬂraining it
to the Degrees prohibited by the Leraz'rz'cal
Law.

And yet a Marriage within thofe Degrees
is not void, but voidable by Sentence of
Divorce.

2. The Age of Conﬁnt to the Marriage:
In the Male, Fourteen.
In the Female, Twelve.
Note, The E/feé}: of Marriages infra Amm-
Nubilex.

3. The Diﬂiaremes of Marriages; as,
A Marriage de Faﬁo;
What is requiﬁte to the Conﬂitution
thereof;
And what Effect ithas.
And a Marriage :18 attire ;
What it is, and the Effects :
And how each may be tried.

4. What dzﬂblve: the Marriage.
And here of Divorces, viz.
I. A Menfa (9' Tbaro only ; as,
I. Caufa Adulterii.
I. C4250: Sazviriae. _
2 Vin.
- The Analyﬁs of the Law.

2. A Vinculo Matrimonii ; as,
1. Catt/21 Conﬁmguinitatis 'vel Aﬁﬂitatir.
2. Caufa Pr‘econtraﬂm.
3. Carl/k Frigialitatir.
And here the Eﬁ’eﬁ‘: of fuch Divorce,
‘In relation To the Parties themfelves.
To their Children.

2.11;, The Second Thing is, in relation to
thole Incidents and Confeqmnces that axife upon
the Intermarriage, viz.

I. What Things the Husband acquires by l

the Intermarriage, viz.

Perfonal Things in Polleﬂion.

Real Cbanea's (O difpofe.
And here,

What {hall be a PolTeHion,

What a Difpoﬁtion.

2. What Things he acquires by the Death
of his Wife:

1. In relation to Chattels real;
By ﬁrviving her. Vida See}. 3;.
2- In relation to Inheritances; asJ
Tenant 5] the Curtefy, if he have Iffue
inhericable by her.
Here of T277412“ by Courtef].

3. What Things he acquires not by the Inc.

termarriage, or Death.

Note, Perfonal Things in Aétion, are in him to
difcharge by the Marriage; but not to
enjoy them by Marriage, or Death, un-
lels he be her Executor or Adminig
ﬂrator.

4 W3": 2‘:

47

II.

 
 

 

'48 The Andy/is of the Law;

4. What Aas of the Husband during the
Marriage bind the Wife.

And here of Difcontinuances.

;. What Aé’cs of the Wife during Cover.
ture bind the Husband, and what not.

And here of
Her Comma-5,3
Her Wills,
Her Receipts.

6. What Ae'ts bind her felf, and what
not.
And here of Pines by Judgment againﬂ:
her. '

7. What the Wife acquires by the Mar-
riage or Death of the Husband.

I. In relation to Honorary Titles and
Precedence.

2.. In relation to Inheritances. ,
And here of Dower, the Kinds of it.
When and how due.

Alfo of ngmine.

3. In relation to Chattels.

Here De rationabilz' parte Bonorum.
And Bomz pampbermzlia.

8. Remedies by the Wife againﬂ the Hull
band,
I. In Caﬁt Sevitiae.
2. In Caﬁt Alimom'ae.
Either in the Spiritual Com't :
Or Temporal.

9.1“;
Tbe Linnlyﬁ: of the law:

9. In what Aétions they muﬂ fever.
In what they may join or fever.

10. What Relation of Proximity either has
to the other in cafe of Survivorihip, as
to the Adminiﬂration of each other’s
Goods.

 

SECT. XV.

Concerning the Relation of Pnfe'nt
and Child. '

Come now to the Second Oeconomical Reina
tion, 2'. e. Father, 01‘ Mother, and Children;
and therein we are to conﬁder,

I. The Father’s Intereﬂ in the Child:

I. In his Cnﬂoa'] or Mra’jbip.

2. In the Value of his Marriage.

30 In his szpoﬁzl.

The Father has the Difpofal,
I. Of his Child’s Education.
2. Of his Cuffed} to 'anOther.

Vida the late Aét, how far the Mother,
furviving the Father, is intereﬂed in
thofe Rights.

II. The Child’s Intereﬁ in the Father or
Mother;
To be maintain’d by him in cafe of Im-

potency by Stat. Elie.
’ E 43 ‘III. The

4‘,

 
 

 

'59 2736 Analy/is’ of the Law.

II]. The reciprocal Intere/Z of each;

Whereby they may,
I. ~Maintain each other’s Suitst
- ‘ 2. Juliify the Defence of each other’s
Perfons.

Here inquire how far forth the Grandchild,
after the Death of the Father, is a Child
within thefe Conﬁderations.

 

. S E C T. XVI.
0f the Relation of Meﬁer and Servant.

Ouching the Third Oeconomical Relation,
of Maﬁer and Servant, little is to be fair!

0

But here conﬁder,

I. The Kind: of Servants.

2. The Nature of Reteiners.

3. The A6}: that may be done recipro-
cally by the Maﬂer or Servant to each
Other, ,

I. In maintaining their Suits.
2. In defending their Perlens.

5 EC T.
The Analyﬂs of the Law.

 

‘ S E C T. XVII.

Concerning Relation: Civil.

Have done with Relation: Political, and
I alfo Oeconomical, and therefore now come
to thofe which I call Civil; though, ’tis true,
that Term, in a general Acceptation, is alfo
applicable to the Two former Relations.

But in a limited and legal Senﬂ: I diﬂin»
guilh Civil Relation: into Four Kinds, viz).
I. Ame/for and Heir.
2. Lord and Tenant.
, Guardian and Pupil;
. Lord and Villein.

3,;U»)

 

 

E2 SECT;

 
 

The Andy/is of the Law:

 

S E C T. XVIII.
Concerning Anceﬂor 4nd Heir.

HIS ReiationI made diﬁiné’t from that
of Parent am! Child, becaufe many Per-
fons are Ame/fort, as to the Tranfmiﬂion of
Hereditary Succeﬂions, that are not Parents;
and many inherit as Heir: that are not Chil-
dren to thoie from whom they inherit. And
although the Buﬁneﬁ of Hereditary Succeﬂions
will fall in hereafter, when we come to {peak
of the jam Remm, and the Manner of tranf-
ferring of Properties, yetl {hall mention it
here alfo. And ﬁrﬁ, conﬁder,

I. Who cannot be Anceﬁor or Heir.

I. A Baﬁard may be Anceﬂor in reiation
to his own Children, or their Defcen-
dants, but nor to any elfe;

But a Baﬁard cannot be Heir.

Add here, of Baﬁam’ss
Whoda Baliard by the Laws of Eng;
an ,
By whatName he may take: By Pur-
chafeJ (9%. ' »

2. In a right afeending Line, the Son is

not an Anceﬂ’or to tranfmit to his Father

or Grandfather by Hereditary Sueeef-
ﬁon.

3. The
The Analyﬁs of the Law.

3. The Half blood is an Impediment of
Defcent, «viz.
Of Lands;
No: of Dignities.

II. Who may be Anceﬂor or Heir.
And here all the Rules of Hereditary Suc.‘
ceﬂiom may come in 3 Whether,

I. In Linea Defcemlmte, from Father
to Son, or Nephew.

2. In Linea Afcmdente, from Nephew
to Uncle.

3. In Linea Tmnfmrﬂeli, from Bro:
the: to Brother.

 

S E C T. XIX.
Concerning Lord 4nd Tenant.

Nder the Relation between Lord and Tc;
. _ 4 mt, thefe Titles fall, viz.

xﬁ, The Tenure it ﬁlf :
' What it is;
How created;
What the Fruits thereof.
1;. Service.
1. Rem: 32. Charges.
3. Seck.
2. Services of Two Kinds :~
‘1. Of Common Rigét incident to Tea
mm; as, ‘
Fealty:
What it is,
E ‘3 2,. (29.3...

-0“-

5‘3

 
 

.54

 

The Analyﬁsof the Law.

2. Conventional Serwim; as,
Homage;
Knights Service,
Grand or Petit Serieanty.

zo’ly, Certain Perquiﬁtesariﬁng from it; as,
Wardfhip;
Marriage;
Efcuage;
Relief:
And alfo Efcheat, which is either,
Ex defeo‘fn Snngninix, for want of
Heirs: Or,
Ex Deliéio Tenenzijj as by Attainder.
And thefe, feveral Tities may be bran—
ched into exceeding many Particu-
lars.

 

v

SECT. xx.

Concerning Gndrdinn and Pupil.

THE Third Sort of Civil Relation: are
Pupil and Guardian. And herein are
conﬁderablej

I. With refpeé’: to the Guardian, what
and how many Sorts of Cn/z‘odz‘e: there
are: As, ,.

I. Guardian by NatureJ the Father ;
And, in {ome The Morher.
Refpeé’as, The Grandfather.
game, In what Cafes, and to what In-
" tents, 2, szr.
The ArzaIyﬁ-s 0f the Law": 5 5.

2. Guardian by Nugture.

3. Guardian by Socage:
Who lhall'be ;‘ ;;
For how long Time.“

4. Guardian by Knights Service.
Vida Seaz'o prox’ fupm.

1!, With rel’peé’c to the Pupil or Heir, is con.
ﬁderable; ,
I, When he ﬂlall be faid of full Age:
1. By Common Law.
2. By ng‘llom.
2. What he is enabled or difablcd to do:
I. In relation to Lands.
2. In relation to Goods or Contraéts.
And here,
W here he {hall be bound;

Where not.
Thefe may come in here, but more pro-
perly before, under Capacity, Seéi‘. 1.

 

 
 
  
  
    
  
 
   
     

 

The Andy/is of the Law;

3 E C T XXI.
0f Lord and Villeirz.
THIS Title is at this Day of little Ufé,
and in‘EHeé’c is altogether antiquated ,

aﬂd therefore I refer my felf herein wholly to
Liedetai'a. '

 

 

S E C T. XXII.

Concerning Perfom or Bodier Politicé,
i. e. Corporetiozzr. ,.

. Have done with the jam Perfwamm Na.

turee’ium, conﬁder’d under their {Everal Re-
lations, Political, OJconomical, and‘Ci'vil; and
therefmegl now come to Perfom Politic/é, or Cor.
paratiam, that is, Eadie: created 6] Operation qf’
Law. ' '

I. The Higheﬂ and Nobleﬁ 3011} Politz‘ek, is
the King, who though he be a Bad; Namml,
yet to many Purpofes‘ is alfo a Bad] Politic/I: or‘
Corporate, as has been already {hcwm and
{ball not now refume. Therefore Eadie: Cor-
porate, in refpeEt of=the Nature 9f them; I
divide into Two Kinds, viz. " ' ’ ‘ ’

 
      

r, mist

 
 
The Analyﬁs Of the 141?; '52}

'1. Eccleﬁaﬁical.
2:. Temporal.

I. Eccleﬁa/h'cal Corporations are diﬁinguifh’d
in their Conﬁitution, thus; viz" ‘
I. In the Title of it.
2. In the Manner of it.
3. In the Nature of it.

1. It; the Title of their Conﬂitution, they
‘ are, ' ' ' '

1. By Brefcription: ,

2. By Charter; as all new Eccleﬁaﬂz‘cal
Corporatiqm, founded within Memory,
are; .1 -

3. In the Manner of their Cenﬁitution,
" ' they are,

I. Eleétive:

2. Prefentative.

3. Donative.

And here,
Of Inﬂitution.
Indué’cion.
By whom to be made;
And when -,
And the Eﬂ'etﬁs thereof,
' Alfo of Lap/E,
And Dew/hi ia'n i
When, and how.

3. In the Nature of their Conﬂitmion, they
. anergQ, many Dtt"z)t.’7'j1‘_ﬁ}:el’iamJ and are,
1:. Mil} Cam, as Patron, Vicar, é'c.
@1210»: Care, as Ptebend. ‘
" 2. Kerrie:
1,

 
 

 

5‘8 The dimly/is 0f the Lam

2; Regular, as Abbot, Prior.
Secular, as Mailer of Hofpital, Parlbn,
Vicar, &6.

3. With Dignity, as Bilhops, Deans,
Chancellors ; or,
Without Dignity, or Simple Beneﬁces, as
Parfon, Vicar, Prebend.

4, Sole, as Biﬂmp, Dean, Patfon, Vi—
car, Prebend 5 orJ
Aggregate, as Dean and Chapter, Ma-
ﬂer and Confraternity.

And under every of thefe Diﬁinétions, the
following Connexes fall in, and are conﬁde-
table," viz.

lfr', How they may acquire;
And what is rcquiﬁte thereto.
1. By Clmrter or Deed.
2. By Licence to purchalé in Mortmain.

And here of Mortmain, which is equally
applicable to all Sorts of Corporations,
Whether Eccleﬁa/licczl or Secular.

mil], How they may alien.

Here fall in the feveral Diﬁzltliﬁg Statutes of
Iﬂ', 13th, and 18th Of Eliza, and the Em;-
lilz'ng Statute 32~H. 8. (ya and what Cir.
cum/lance: and QllﬂllﬁcczthﬂJ are requiﬁte to
enable fuch Alienations; And if by De-
mife, orocherwife.

3’77]: HOW
The Analy/is- of the Lazy.

gall], How they are diﬂ'ol’v’a’, and the Ef-
fec‘i‘ of fuch Diffolutions; as,
What becomes of
Tbeir Lamb;
Their Good:.'
And this is likewife applicable to LIZ]
Corporations. \ '

H. Now as to Temporal or Loy Corporations.
They are of Two Kinds:

1. Special Corporations, i. e. ereéted to fame
Speciizl Purim/21, as where the Grant is to
a Monk, or to the Good Men of [ﬂington
in Fee-Farm,

So Church-wardens are, by the Com-
mon Law, a Special Corporation to
take Goods or perfonal Things to
the Ufe of the Parilh.

2. General Corporations; which are diﬂin—
guiﬂl’d thus:
I. In refpeé’c of the Title cf their Cor-
poration,
I. By Charter.
2. By Prefcription.

2. In refpee‘t of their Quality or Com
diam, they are either,

1, Sole, as. the Chamberlain of
London, as to Bonds taken by
him for the Ufe of Orphans,
is 2 Sole Corporation. ‘

2. Aggrrgate‘ as Mayor and Com«
monaity, Maﬁa: and Scholars,

Matter

59 '

 
 

66 The Andy/is of the Law:

Maﬁer and Confreres of an
Hofpital, 62:,
And here,
The Manner of their Vi rtatiasz:
And by whom.

3. In refpeét of the Rule: of their
Conﬁrtution, where the Members
are, ‘

I. Elective.
2. Donative.

And as common Incident: to Corporations,
are conﬁderable,

1. How they are diﬂélmizie.
By Qua Warranto.

2. The Eﬁeéf of ﬁnch DiﬂblutionQ

3. HOW the particular Members are rema,
rvalwle. "

4. Their Remdy, if wrongfully remov’d.
By Maniamm. .

And here comes in the Learning of Writ;
of Re/h'tutian in the King‘s—Bench, ofPere

Tons unduly disfranchis’d.

Hitherto of the Dijlriéqrion of the Heads
and Branches of the Law touching the jum’
Perﬁmmm, or Rigbts of Perﬁm.

SE‘CE};
The Analyﬁs o] the Law:

 

C H A P. XXIIL

Concerning the Jura Rerum, dnd the
General Diviﬁon tbereoﬁ

HAVin'g done With the Right: of Per/hm,~
I now come to the R2“ In: qf Tbingn
And though according to the u hal Method of
Civilians, and our ancient Common Law
Tractates, this comes in the {econd Place
after the j’um Perfonamm, and thereforel have
herein purfu’d the fame Courfe; yet that muff
not be the Method of a young Student ofthe
Common Law, but he mui’t begin his Study
here at the yum Rerum; for the former Part
contains Matter prOper for the Study of one
that is well acquainted with thofe 3m
Remm.

And although the Connexion of sz'ng: to
Perﬁm: has in the former Part of thefe Diﬂri-
buriom given Occalion to mention many of
theft: ffura Rerum, as particularly annex’d to
the Conﬁdetation of Perﬁm: under their feve-
ral Relations, yet I muff again refume many
of them, or at leaﬂ refer unto them; and this
without any juﬁ Blame of Tautology, becaufe
there they are conﬁder’d only as incidental
and relatively; but here they are conﬁder’d
abfolutely in their own Nature OI Kind, and
with relation to themielves, or their own Na-
ture, and the feveral Intere/h in them, and
Iranﬁzc'i‘iom of them.

And

.U'J

 
 

'62

 

The Analyﬁs of the Lair.

‘ Arid in this Buﬁnefs I {hall proceed” in the
Method following, viz, ‘

1. I {hall conﬁder‘ the Thing: themfelves,
"about which the 3m Rerum are conver—
fant,_ and give their general Dijfrz‘buriom.

2. I {hall conﬁder the feveral Rig/m in
thole Tbingr, orto them belonging, and
the Manner of the Produétion, Crea-
tion, and Tranﬂation of thofe Rig/m.

3. I {hall conﬁder the W'rongr, Injurier, or
Cam/e: of Aétion, drying by W rang: or In.
juries done to t/aoﬁ: Rights.

4. I {hall conﬁder the Iéveral Remedies that
relate either to the Retaining or Reco-
vering of thofe Rigbn.

Fir/Z, Therefore I proceed to the Conﬁde—
ration of the Thing: tliemfelves, and their Di-
ﬁrihuzions. Bmﬁon (and others) following
the Civil Law, in his Second BookJ cap. II. De
Remm Diviﬁme, makes many Dil’rributions of
Things; but I {hall only ufe fuch a Dif’tribu-
rion'as may be comprehenﬁve enough to take
in the General Kinds of Things, whereof - the
Law of England rakes Notice, without con-
ﬁning my fell' to the Diiirihu‘tions of others,
but where I ﬁnd it neceﬂrary for my Pur-
pofe.

Ming: therefore in general may he thus di-
ﬁributed, rw'z.

I. Some Things are TIE-'mpaml or La].
2. Some Things are Exit 12/315651 or Spi-
rited. Theft:
“The Andy/is of the Lani.

Thofe Things that are Temporal or Loy, are
of Two Kinds; -

I. Some are :furb puélioi.
2. Some are yum privati.

11!, T hofe Thugs that are 31m} publici, are
fuch as, at leait in their own Ufa, are common
to all the King’s Subjects; and are of thefe
Kinds, «dz.

1. Common Highway.

2. Common Bridge:.

3_ Common Riven. _

4. common Pom, or Places for Arrival
of Ships.

And this lets in the various Learning touch-
ing their: Tbings. As for Inﬁance:
Who are to repair Higowo}: or Brio’ges.
I. By,Tenure.
2. By Cogﬂom, or of Common Right,
Alfo concerning Nuﬁmces in them.
And in Common River: or Porto.
And how to be remedied,

0:? But this we ﬂiall meet with when we
come to Pleas of tbe Crown.

2511], Thofe Thing: that are 7m: primed,
are of Two Kinds:
I. Things Perfomol.
2. Things Real.

Things Perﬁmol, again are of Two Kinds:
I. Things in Pqﬂéﬁow.
2. Things in Aﬁion.
_ Things

53

 
 

64‘ 1' be ﬁnely/is of the-L35}?

Things Perfonal in Pqﬂéﬁm; as,

M , 3%de Plate Houjholzl—Stnﬁ' Cattle
3931150“; Emb’lements, é'c. ,

Things in Affian are Rights of Perfonal
Things, which neverthelefs are not in
Poﬂ'eﬂion; as,

1, Debt: due, either,
x. By Contraﬁ;
2. By Specialty;
I. By Deed Or Obligation.”
2. By Recognizance.
2. Goods, whereof the Party is dive/ha],
or out of Poﬁ'efﬁom
3. Right: qf Damage! uncertain; as,‘
Covenant: broken.

4. Legacies not paid or deliver’d.
5. Perfanal Things in Contingency; as,‘
Accounts, and many more.

Mfo Annuities which are partly in P4;

feﬂian, for that they are grantable
over; and partly in Aﬂz‘an, becaufe
natlrccovcrable but by. Aﬂion.

s E (351':

 
7/93 Analyﬂs of the law. 6.5

 

S E C T; XXIV.
Concerning Things Real, and their
Diﬂribzdion.

Tiling: Real are of Two Kinds:

I. Corporeal, _
2; Incorporeal.

Carporeal Tbing: Real are fuch as are mam:—
74516. '

And they again are of Two Kinds;
1. Simple.
2. Aggregate.

1. flying: Corporcal which are Simple, are gen
nerally comprehended under the Name of
Lamb; which yet are diﬂributed into fevers!
Kinds, according to their feveral Quali ca;
rim, and accordingly are demandable in Writ: ;
as
’A Meﬂimge, 3 Cottage, at Mill, 3 bet, aGar-

den, an Orchard, Arable—Land, Meadow,-

Pzz/fure, W'ood, M47111, Moor, Furze, and

Heath, and divers other Appellations.
And here the Learning Comes in touching
the Name: of Things, by which they either,

I. Pa/i in Aﬂimzmcs; or,

2. Are dcmandalzle by I'Vritx, 6‘6.

P ‘ Thing:

 
 

 

The Analyﬁs of the Law;

Thing: Corporeal Aggregate, are fuch as con-
ﬁﬂ: of Things of [ward Natures, whether théy
be all Corporml, or the principal Part corporeal,
but the other Part Incorporeal; becaufe that
Part which is Corporeal in them, gives it the
Denomination of Corporeal; and they paﬂ‘
without Deed, for the moﬁ Part, as Thing:
Corporeal do, and are of feveral KindsJ viz.

x. Honoam, conﬁﬂing of many Manorx.‘

2. Manors) conﬁﬂing of,

I. Tbiﬁg: CorporeazlJ as Demefm.
2. Tiling: Imm'pm'ealJ as Rewrﬂom, Sei’vz'cer,
And here of Manarr, ‘how created.
. And the Incident: to them; as,
CourtBaron.
NE) of the Diﬂribudon of them into,
1. Manor: in Rig/Jr, where there are
Demefm and Free/adders.
2. Manor: 1'” Reputation, 35 Conven,
' tionary or Cuﬁomary Manon, con-
ﬁﬂing of Copybald'er: only.

3. Reé‘r’ories, conﬁf’ting of Glebe and 73:65,

And although ReéftQtigsPreEntative may

.' feem more properly to come under
Things Ecclqﬂzhﬁical; yet ﬁnce at this
Day many Refiorz'e: and 73th“ are 3112)
become La] Fees, I bring them in un.
(let this Diﬁriburio‘n; "

‘ 4, Vills, Hamlets, Oranges, Farmt, (9%. are
a Kind of Corporeal Things Aggregate; for
they conﬁﬁ of Haufex, Land}, MeaJOWI,
Paﬂum, Waugh, (3%.

And
The Analyﬁs of the Law. »
And here comes in, .
I. Parcel, or Nient‘ Parcel.
I. What Parcel in Right.
2. What Par'c‘el in Reputlztién‘. ,
And the Eﬂ'eéls thereof in Point
of Conveyance.
.2. All the Learning of Incident:, AP-
pendants, Appurre‘namex, (9‘6. as, '
1. What may be appene'am, ap.
purtenant, regara'ant.
2. How and where they M} by

general I'Vom's, withom naming .

them.

II. ﬂing; Incolvporeal are of a large‘_Extent§
)ut may be reducible unto thofe Two general
Kinds, rule.

1; Things InCorporeal, not in téez'r own New
tyre, but f0 called in refp‘eél: of the
Degree or Circumﬂance wherein they
lland; aé,

Reverﬁom.
Remaindm'. ‘

T/ae Eﬂate of Lamb.

Here of Raver/ion: and Remaimlm', Whaé
they are, how transferr’d.
LByDeed. , _ J
y 2. By Livery without Deed;
Alfo' how a Reverﬁoiz may palé by the
Name of Lamb, or by the N Ame of a
Rewaim'ér, or é con var/22°

F 2 . 2'. Things

67‘":

 
 

6 8 The Analyﬁs of the Law.

2. Things Incorporeal in their own Nzture:
And thofe are ofvery great Variety, and
hardly reducible inro general Diﬂribu~
tions, and therefore I am forced to take
them by Taie, 1122:.

1. Rent: referved or granted; as Rent-
Ser'viee, Rent—C/mrge, RenLSecl’,
And here of Rents; the ieveralKinds

of them; how created, how trani:
ferrid, viz. B} Deed. How zipper.
tinned, [70w extinguiﬂied; what the
ordinary Remed] to recover it, viz.
Diffre/r.

But of Diﬂreﬂés, fee hereafter in
Remedier. .

2. S ervice: Perﬁmal incident to Tenures;
as, Homage Fealty, and Knights
Service; what Services are entire,
What ﬁzz/emble.

3. Advent/om of all Sorts,

Donati've.
Preﬁntarim.

And here of Right of Patronage,
Right of Founderﬂlip; how rai-‘
{EL-d; how transferr’d; what In-
cidents to it.

4. let/Je: of all Sorts,

' Perﬁizdl.

Preedml.
And Mix’d.

And here again of Tjtber, their
Kim‘s, their Difcharges, «25%. may"
be referr’d hither, and that more
properly than before.

i 3 5'. Common:

 
 
 

The Analyﬁs of the Law.

5‘. Common: of all Sorts; as Common
of Eﬂamrr, and of Paﬂure, appen-
dent and appurtenant; for Cattle cer—
tain, and for Cattle jam Numlzer,
Safembz'lis Paﬂum; and What may
be done by thole Commoners,

I. In relation to Other Com-
moners by Admeaﬁvremem,

2. In relation to the Lord by Di—
ﬂref: or Aéfirm.

And all the Learning hereof may
be added here, though we lhall
meet with it again hereafter.

6. All Kinds of Proﬁcrm capienda in
aiz'ena [010; as Herbage, Pawnage, é’c.

7. AllKinds of Penﬁom, Proxier (Pro-
Curations), 0c.

8. Oﬁice: of all Sorts.

And here of Ofﬁces, their Diﬁriu
bution, what may be incident or
appurtenant to them.

9. Franc/ﬁfe: and Liberties of all Sorts,
many of which have been before
mentioned, and may be transferr’d
hither.

And here I {hall again lhortly diﬂri-
bute them into thefe Two Kinds,
we. '

1. Such as are Flower: of tbe Crown,
and. Part of the "King’s Royal Re-
VenueJ as Waif5,Stm]5, Felon: Goods,
Good: of Perfom' outlay/d, Priﬁzge,
Wreck, Trea/hre We've, Rajal 'Fr'ﬂo,
Royal Forfeiturer, Fines: 597463, Amer-
ginmenn, Foreﬂs, (9‘0.

F 3 2. 31cha

  

   

69

Walt $28.!)
 

70 {be Andy/is of the, Law;

2. Such as are not Parcel of the King’s
Royal Revenue, but either lodg’d in“
him, or created. by' him, as Countiesf'
Palatine, Markets, Fain, T0115, Court:
Leer, Hundred Courts, Lien?) to bold:
Pleas, Return: of W’ritr,‘ Bailiwicér of
Liberties, Warrem, Ferrier, and ti}?
like. '

And every one of tliefe yield a large

‘ Field of Learning, we.

1r, How they may be created or
acquired. '

L What are acquired by Pref
fariptz'on or Ctr/hm.
2. What in Point of Clmrrer.

2. Where one Liberty may be
granted to the Prejudice of am;
ther, or not.

3. How thefe feveral Liberties are to
be ufed; what their NatureJ 69w. '

4. How they may be lo/i‘J either by
Nonufcr, Mifufer, Nanelaim in Eyre;

And therefore, though I have men~
tloned theft: Liberties and Fran-
cbz‘fe: before, in relation to the
King’s Voluntary 7mifd2ﬂion in
creating them, yet the full Diﬂ.
cuﬂion and Learning of every of
them may be hither referr’d. '

30. I’E‘Zlez'm: And here that Learning may
'2 come in. Vida ante, Seff. 21.

31.“ Dignitiw, as Dulcer, Magniﬁer, Earl:a
‘ Vé/Z‘oxntr, Barom, é’c. > 4

Andy
Ibe'AnoZy/is of the Law;

And thus far touching Inoorporeol Real Thing:
ﬂmporol. ‘ ' ' -

Their common Incident is, That they pof:
not from one to another without Deed, And
t6 ‘thefe feveral Titles, may be reduced all the
Learning of each Particular. ,

 

S E_ C T. XXV.
Concerning Things Eccleﬁaftical or
Spiritual.

\

Have done with Thing: Temporal, and

come to thofe that are Eccloﬁofz‘z‘col or Spi—
ritual : And though the Poﬂélﬁons of Eccle—
ﬁaf’tical Perfons, the Ofﬁces, Courts, and
Jurifdié’cions Eccleﬁaf’tical, and Tythes alfo,
hﬁght come in under this general Head; yet
becaufe theft: Things fall in the former Title
under Temporal Things, and for that the Rule
for them both is the lime, I {hall not need to
repeat it here, only I will remove what before
Came under the Title Corporations, hecaufe it
may be thought to come in more conveni~
eutly in this Place. -

Egcleﬁzg/olioal 2751‘:ng are of TWO Kinds, 4952;.

1. Such as are Eccleﬁaflical or Spiritual
in their Uﬁ.
2, Such as are fo in their Nntnro.

7a,.

 
   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
   
  
  

 

The Analyﬁs of the Law.

I. Of the former Sort; are,
Cbmcbes,
Cbapcls,
Cburcblardx, (9'6.
(Which lets in the Learning touching
Repain.)

And chefs are of Two Kinds.

I . Parochial.
And here fans in,
The Bound: of Parifhes ;
Relief of the Poor ;
And other Parochial Charger;
And theﬁ: are either,
1. It] Right.
2. In Reprefgntation. '

;. Not Parochial; as,
Chapel: of Eaﬁ.

11. Such as are Ecclcﬁaﬂical in their Nature,‘
are either,
' Digm'tieyJ or,
‘ BeneﬁceJ.

Ecclgﬁaﬂical Dignit'ieq are of Two Kinds,
7212:.

x, Supwior; as,
Arcbbiﬁ: Iprickx,
Biﬂaopricéx.
;, Inferior; as Dignitie: in Catéezlral
’Cburcbes, as, ‘
Dean,
Chancellor,
Intuition

 
   
     
 

Ecclqg

  
T be Analyﬁs of the Law. 73

Eccleﬁaﬂical Beneﬁces tare likewife of Two
Kinds;

1. WM Care; as,
Parﬁmgu,
Vicarages, (9'0.

2. Witbout Cure; as,
Prelimds,
Eccleﬁaﬂical Hoffitals, (96.

And here the Learning touching thofe
Matters, and alfo touching Vacancy by
Pluralities.

Alfo of Appropriations, Common Difpenﬁztiom,
@aliﬁcatiom.

And Vacanq, by
Reﬁgmtian,

Deprivation,

C q/ﬁon.

So much touching Eccleﬁz/fical Bemﬁm not
obfervablc fupm, Seff. 22. ,

 

SECT.

 
 

‘74-

The ~[burly/is of the Law:

 

S E C T. XXVI.
0f the Nature and Kind: of Properties.

Itherto of the Kinds of Tbiﬁgs, I come

now to conﬁder the Nature and Kinds

of thofe Properties or Intere/z‘: that Perfons
have, or may have in them.

The Riglm of Things are diﬂ'ributed ac-
cording to "the Nature of the Things them-
felves; which are, ' '

I. Perﬁmal.
2. Real.

The Rig/J! of Things Pei-[End is cailed Pro.
piety, and under that will come thefe Conﬁ~
derables, 'Uz'z. -

1. Ti 3 Kinds of thefe Rights.

2. The Capacititx wherein they are held.

3, The Mﬂnner of their being acquit’d or

transfetr’d.

i. TheKimI: of thofe Right: or Proprietic: of
Things are "Three, 'w‘zn
I. A Pmpriety of 11522072, which is reiarivc
to all Things in Aéiion.
2 A Pmpriety in Pcﬂeﬂim.
.3, A mix?! Pz'opriety, partly in Mimi), and
" pattiy in Poﬁéﬂiom

xi“)

.r‘ J

 
i The dimly/is of the Law;
1/}, Touching the Property of Things in

Ailian.

This is an Interefl by Suit or'Order ofLaw,
ro demand the Thing: themfelves, or Da-
mizge: {or them.

But of this hereafter, when we come
to Mangr or Injuries.

25117, Touching Propriety in Poﬂ'eﬂion:
It is either,

1. Simple and Alfolute.
2. Special. or Particular.

1. Simple or Aifolure Property, is when a
Man has it, and no other bar or can have
it from him, or with him, but by his
Own AC): or Default.

3, The Special or Particular Property is of

‘ Two Kinds, viz.

1. Such as ﬁmze oticr has a concurring In-
‘ ter'eﬂ with him therein.
'2. Such wherein, though no orlyer has
,any concurring Intcre/l with him, yet
his Property is but temporary, and
v‘anifhes by certain Accidents or Oc-
currences.

’The former Kind ofrhofe Sp€cial or Pfi?‘ti(tl~
lizr Properties are very various, viz.
I. The Intereﬁ that a Man has by
Bailmenr.
2. The Intereﬁ he has in Goods
piedged: Or,
3. The Intereﬂ he has in Goods con-
i dizionaiiy granted.
" ' 4.3%:

.; 75

 
 

76 The Analyﬂs of the Law.

4. The Intereﬂ he has in {Things di-
ﬁrain’d, or) a Diﬁr‘eﬁ.

5. The Intereﬁ of Goods demis’d for
3 Term.

The Second Kind of Special Property, where.
in though no other has a PropertyJ nor
indeed are the Things in themfelves ca.
pabie of any (certain or fore) Property,
yet a Man by certain Contingents or
Accidents may have :1 Temporary Property
in them ; {uch are Things Fem Natum,
wherein a Temporary Property may be
Iodg’d upon thefe Grounds, 'w'z”

1. Ratione Imporentioe, as in Young Bird:
’ in a Neﬂ upon my Tree.

2. Rotione Loci, as Conic: and Here:
while in my Ground.

3. Rotione Privilegz‘i, as of Bird: 01!
Bro/fr of lVorren While Within my
”down, and Swom within my Li— ‘
56ft].

gzlly, Touching Mix’d Propertier, i. e. part.
ly in Aé’tion, and partiy in Poﬂ'eﬂion: They
are Aﬁnuitier; wherein a Man may have a
Perﬁno! Inheritance.

Thus far of Property or Right in Things
Perﬁmol. ,

II. The Second Thing propounded, is the
Capacity wherein a Man may have them; and j
that is double:

1. In :‘fure proprio.

2. 1n jure ulterior.
The Analyﬁs‘oj the Law.

And this latter is of Two Kinds;
I. As a Body Policick.
2. As Executor in Right of the Te-
ﬁator.

Ill. The Third Thing propounded is, T62
Manner of 2,6: Acque/ﬁ, or Tranﬂation of Pro-
perty. And becaufe both of thefe will be
much of one Conﬁderation, I {hall join them
in the Courfe of my Diﬂributions.

Perﬁmal Things, either in Aﬁion or P0ffef-
(ion, may be acquir’d or transferr’d Three
Ways:

1. By A8c in Law.

2. . By A61: of the Party.

3, By a Mix’d Aé‘r, conﬁﬁing of both.

SECT.

77

 
 

78'

Tim Andlyﬁs Of 21531115;

 

S E C T. XXVII.
Of Acquiﬁtion of Property 1)} Ac? in Lair;

1. THIS Acqui/z‘tian [7] A6? in Law may be
many Ways, viz.

1. By Sum/ﬂan, whereby Properties are
transferr’d to the Succeff‘ors of fuch a
Corporatim by Law or Cuﬂam, which has
a Power to receive Perfonal Things in a7
Politick Capacity; 213

I. A Sole Cdrporation, by Cu/lom.
1. An Aggregate Corporation, by CM;
man Law.

2, By Devolution, «we;

To the Executor.

To the Ordimzry,

T0 the Admz'm'ﬂmtar. .

To the Hméand by the Intermnrriage,’
z‘. e. As to Pedonal Things in P013“
feﬂion , but not as to Perfonal
Things in Adﬁo‘n’.

3. By Prerogative, whereby they are given
to the King, or to fuch as have the King’s
Title by Grant or Prcfcription; as, Wmﬁ
Sim], W’rec/c, Treafme Trove;

4. By Cu/Z‘om; as in the Cafe of Heriot Cum
ﬂow, and Heriot Service, Mortuaricr, Heir
Loom!) Fareign Attacbmem‘, ﬁﬂignmw: of
Bill! of Exchange;

$1 By

 
The Analy/is of tbe‘Ldib;

5*. By yudgment, and Execution thereupon,
which in the Call: of the King extends as
well to Thing: in Aﬁion that have :1 'Cer-

. tainty in them (as Debts), as to Thing:
in Pojféﬂz‘on. But in the Cafe of 3 Com-
mon Perﬁm, only as to Tbizzg: iaPoﬂEﬁon.

And this by, '
I. Fieri Facim: Or,
2. Elegit.

6. By Sale in Market—Overt.

s E c T. XXVlII.

Acqui/ition of Properljz 6} Ac? 0 the Part},
I and Mix’d A6}. f

II. Cgui/i'tion of 'Prhperty 5;! A6} of we
I & Part], may be Three Ways, 'w'z.
I. By Grant.
2. By Cmtraﬁ.
3, By Aﬂignmem‘.

And herein is conﬁderable,

I. That in the King’s Cale it extends as
well to Things in Adlimz as in Poﬂéf.
ﬂan; for Debt: may be afﬁgn’d to him,
or by him.

2, ln the Cafe of other Perlbns, only
Things in Pe/ﬁﬂ'z'm are Qﬂgﬁﬂé‘iﬁ’.

Ill. ,A’c.

479

 
 

 

8a The Ana/Ms of the Law;

III. A 67145 ztion thereof b] a Mix’dﬂﬁ, part.
1y by 1451‘ (31‘ Law, and partly of the Party.

And thus Things in Aé’cion, as well as in
Poﬂeﬂion, are transferable Two Ways.

x. By Hit of the Part}, with Cu/iom coopc.
ratin ‘-

Thus a Bill of Exchange is aﬂ'ignable.

2. By Operation (f the Law, concurring
with the A5? or Default of the Party, as,
Forfeiture: of Everal Kinds, viz. ~

I . By Outlawr] in a Peifimal A5312)».

2. By being put in Exigmd in the Cafe
of Felon].

3. By Attaimler of Tree/5n or Felony.

4. By Motioh to the Beat/3 of any Per-
fon ; as Deodaml.

And thus far concerning the Rig/at: of
Things Pe7ﬂml.

 

SECT.
”édialyﬂsbfwé-Lae: 3;

_,

s E c T.‘ XXIX.
Conqerging‘tbe Right: of Téiﬂgtﬁeal.

I Now comertoy the Rights of Things Real:
‘ And herein Imall hold this Method.

'Iihaii eonﬁder the Rigbtizhfi the Things
themfelws; 91‘ the:‘ “veriyw .InfetjgﬂgaquE/fate:
ﬁTﬁnigﬁReal, we} ; . '1 “ :

I. The different Nature of Eﬂates Or Inte-

rcﬁs in Things Real, in relation to,
1. Their Nature and Extent.
:9: 2: Their Limitation or thalz'ﬁcation.
' zf‘Th’e' different Relation‘of thqfe Eﬂat‘es,

with refpeét’ to‘ the ‘Poﬂﬂiangr _
3. The different @alitfie: thereof in refpcét V1. ﬁle
of the Perﬁmrha'ving the ﬂame". “ ' ‘ sea. 32.
_ ._ t . . .,- (9V faggot.
E17}, As to the Difference of E/fgtex, with
reibtion totheir Nature» and Extent, they Will
be divided into, ' , i
,I. .Eﬁates by the‘Courfe of the Common
Law, ~ -

2. Eﬂates by Cu/iom Vor Copyboldt.

Eﬁates by (Courfe of) the Cammm Law
are divided into,

I. Eﬁates of Inberitance.
2.. Eﬁates left tbm Inberitamey

I

G Eﬁates

 
 

   

g; the MM: om: L33;

Eﬁam of Inheritance are;

I . Fee-Simple.
2) Fee~TaiL

s E c T. XXX.
0f Eﬁate: in Fee-Siﬁplé dud Fee-T43;

Fiﬁ}, [F an Eﬁate in Fee-Simple; where;
in is‘conﬁdcrgble, .
I. The Extent and Name of the‘Eﬁate.
2/; The @0117] incident thereimto.

1. A: to the Extent and Nature of the Eﬂate:
It .is an Eﬂatc to a Man. and his Hﬁtﬁ‘ (’01i
ever. And a Fee-Simple is either; ’

I. Abjblute. _
2. Limited or nglzfel,

[in Ab/blu‘te Fee-Sihple is ﬁlth" as 515 116
Bounds 0r Limits annexed to it, and is‘
an Eﬁate to a Man and his Heirs' exhibi-~
lutely for ever.‘

A Limittea’ or Qualiﬁed Fée- Simple is fuch as"
has fome Collateral Matter annex’d to it,
whereby it is made by form: Means“ dc;
term‘inable, viz.

By Limitation; 01‘,
By Conditibn,

2} The”

é~,~_. .
Me 217144715 of 156; Law. '3 g 1

z. The Qualzty of an Eﬁate in Fee Simple IS,
Ihat it is tra‘nfmiﬂhble in the very Nature
bf the Eﬂate: . ,

1. To the Since/ﬁr m Bodies Corporate bY
a Right 01:5'ucaﬂian.

2 T0 The Heir 1n the Cafe of Perﬂam rm.
; mm! by 04227”.

3 To an] other Per/Fm by Alienatiano
As tq the former of thefé,

The Nature of the Corﬁoraﬁon direéis
‘. ch: Rule 01.. Samﬂfan.
A's to the Second,

The Rules of 15efccnts are diréétcd;
I. By Cuﬂom... _ .
2. By Common Law.
13 BY Caﬁom; as, .
To a” the Sam 11] Gavelkind. ,;
To the Youngeﬂ 1n_Burrow Engltﬂa.
2. By the Cowman Law Whereimhe Rules
,1 of the Common Law give the Direétion
But of this more at large m Serf? 3;

23116 Second E11111: o1 Inberzmme i. Fee-

:01 .

Ana 1513:2111 aré ,liiécuéié: 01111111111511;
I The Nature and Extem‘ of the Eﬂatt
2. The Incidental 35411151: theréof.

i As to the F111: 01 thcié,

The Manner «f it: Limitat1on 15 that which:
deﬁnes and circumfcribes It: And that' 15
anther,

5-4 ' ‘1'
G 2. :0 G“

 

 
 

 

84. The Analyﬁs of the Law.

”1",“ General; when an Eﬂate is given to
, - . one, and the Heirs of his Body 5‘
. the Heirs Male of his Body, "or the
Heirs Female of his Body.
2. Special; as when it is limited to a
Man, and the Heirs of his Body by
{bob a Woman; or éconverﬁy.
And here falls in a Confequent of fuch
3 Limitation; namely, '
An E/late Tail after Ptﬂllaility of
lilue extinét.

2. As to the Incidental .anlz'tiex, or anlitie:
incident to fuch an Eitare, they are,
\ 3- 7 I. In relation to the Hereditary Tran/'-
mg’ﬂz‘on thereof.
2. In relation to the Alienation
thereof. ‘

I. In relation to the Hereditary Tranf-
miﬂz‘on thereof The Rules of De-
, {cent direét the Manner of it.
2. In relation to the Alienation thereof.
, ' Regularlyby the Stat. De Dom) Con.
ditiomlz‘lusthey have no PoWer of
aliening, {o asto bar the Iﬂue, Re-
'verflon, or Remainder.
And therein are 'conﬁderable,
. I. WhatAlienations are’uoid by his Death,
either, y
1. By the ﬁtat. De Dani: Cpnditiomli-
I“.
[2. By the. Stat. 11 H. 7. of 70:72.
Iﬂﬂe’i. ' " I .. _

;. What
Ike Ahab/is of the Law. 85
2. What Alienations are widxzéleuonly.
’UZZ-
By Entry.
By Affion
By Suit. ‘
And therein of Difoominuamei.
3. What Alienations bind the Iffue in
Tail, but not the Revertioner, viz.
.A Fine with Proclamations, by
L.Stat 4 H. 7.
2, A Leafe for Three Lives, é‘c.
and accuﬂomable Rent, by Star.

32. H. 8

3 Attainder of ‘ Treafon, by Stat.
33 H. 8.

4 A Warranty Collateral, Lineal,
with Affets.

4. What Alienations bind both the Iﬂ'ue

and the Reverﬁon, 1052/...
A Common Recovery purfuant to

Law.
And here of Common Recaweﬁe: :

Their Kinds, -

Their Effeé’ts

e; SECT;

 
 

 

 

§§ T .126 Avebﬁs 9f ﬂee L92-
3 E C T. Y XXI
Of Eﬁate: at Common Law, (If; Mm
, " Iribcrxtame. 3' '

H E {aid Eﬂates are conﬁdcrable like.
wife

I In their Nature and Kind:.

2. In their ImiJents. *

I. In their Nature an(I Kind: (hgzy are 5*.
char,
-:' I. Eﬂates of Freeb‘old,

2 Eﬂates left ‘tban Freehold.

I. Eﬁates of Freebalzl are again divided Into,i
1. Such as ariﬁ: by AEt of Law. ‘
2. Such as arife by Aét of the Paxty.

Freebold Eﬁatcs ariﬁng hy A6} of Law are,
I. Tenant by the Curtcfy of England

2. Team: in Dower.
And here of the Learning of both (heté.

Freeéold Eﬁates arihng hy A6? (ftlze Part]
3are
I. Tenant for his own Life: Whigh Is
; cither, *
1. Szmpl; {5); Or,
2. With a Privilege annex d; as,
Tenant aﬁer Pqﬂim'lit}, De qua

ﬁlm. >
2,». Imam
5le Axalyﬁs of the L417; 87

2, Tenant Par auter 'vie.
’ And herein of Occupancy,
' General.
Special.
As alfo of Eﬁates limited to one,
and his Heirs, Par war we.
2. Eﬁates hf} than Freehold are of Two Kind;
" i 1. Certain.
z, Incertain,

x. El’tates lel§ than Freehold certain are,
' Leafes for Years. ‘
And here allb of Leafes by SW.
Merchant, Stat. Staple, and Elegir.
And likewife the Learning ofExremx,
Re—exrents, Audits Qgerelm, éc.
2: Incertain El’tates lefs than Freehold are,
Tenant: at Will,
Thefe are determinable at the Will
of either Parry.

II. The Incirlenr: to all thele particular
Eﬂates, except Tenancy at Will, are thefe, viz.

;. They are transferrable from one to arm.
ther, unlefs particularly reﬂrain’d,
By Condition; 01',
By Limitation,

They are forfeitable.
'And here of the various Forfeitures of
“particular Eﬂates; as,
1. Such as give a Right or Title of
' Entry to him in Reverﬁon.
2. Such as give a Remedy by A6750”,
' 35, Waﬂ.
And here of the Title Waﬂ.
‘ S3,. 4 5 E C I.”

 
 

 

88- The ﬁnely/is of the Law;

 

S E C T. XXXII.
0f the Diﬂinéfiwz of Right; of Eﬂzztet,

wit/J relation to the Peﬂéﬂion.

nee Aving gone through the feveral Kinds

55:5}: 19- H and Natures of Ejfm: bath at Common
Law and by Cuﬂom, I come now in the fe—
cond Place to the "variant Relation: that thefe
Eﬁates have tolthe Paf/‘éﬂz‘m; which gives feve-
ral other Determinations unto the Right: that
Perfons have to them. ' ’

Thefe E/hzte before mentioned, and the
11gb“ thereupon, are either, '
1. Such as are in PoITeﬂion.
2. Such as are no: in PoiTefﬁon.

I. The Right of thztes in Poﬂeﬂion', is
where there does interpofe no Eﬂate o1;
Intereﬁ between the Rig/1t and the Ptyﬁaf.
[ion of the Thing; as, i

Tenant for Life in Poﬁ'efﬁon.
Tenant in he in PoiTeHion, 0‘s.

2. The Rights that are not immediately in
Ppﬂéﬂion, are either,

‘ t. Wherethe Time of their Enjoy-
ment cxpeé’cs the Acc’ompliihment

, of fomething elfethat muf’t antecede
1t. '

2. Where
The. ‘Analyﬁs ofxthe. Lani?

;. Where the Righter Effate petohance
is immediately in the Party ;: but
'the‘Poﬂtﬁon thereof is removed or
detairfd by another.

I; As to the former of thefe; they are of
feveralKinds,wiz. . ’ i .

I. Reverﬁom; which though a prefent In-
tereﬁ, yet ﬁands in a Degree remov’d
from the PoiTeHion till the particular
Ei’tate be determined.

_‘ 2. Remainder; .
3. Future Interejt: of Terms for Years.

4. Contingent Intereﬂsf, or Intereﬂs or Eﬁates
limited to take Place upon a precedent
ConditiOn.

This is frequent in Cafes,
1. Of Accrewert.
2. Of Contingent Ufet.

;, Eﬁates fubieéi: to :1 Condition of Re-em-ty,
wherein he that has the Beneﬁt of the
Condition, tho’ he has an Eﬁate in the
Condition, yet he has not the, Land till
the Condition broken, and a Reentry“

11. As to the latter of thefe, 'viz. Where

the E/fate is dive/teal, or removed, or detained; _

by another. ’

This gives Two new and additional Dene»
minations, viz.

I. A Title of an Eﬁate.
2. A Rigét of an Efiatet

i. A

8’9";

 
 

 

’93. .175: 434141165 0f the Law:

I. Title of an Eﬁatc‘, is where a Man has
not yet the Pofi‘clIion, but has a Title to
have it, by feaibn,

‘1. Of a Condition broken.
2, Of a Title of Entry given by For-
‘ feiturs. ' '" , ' ‘
3. Of a Title of Entry by reaibn of
’ Acisof Parliament. i '
As Title of Entry for Mortmain,

For Affcpt to a Raviihcr, 2522*.

g. A Rig/it of an Ellare, is where a Man is ‘

put out of his Eﬁatc by the wrong of
another. ‘
" Hereby, though he has iii" the Right
to have thg Eﬂate he had beibrc, ye;

be has no: the Eﬂatc it fclf in Pof:
Ibﬂion. '

And chofe Rights are of Two Kinds,

‘ 1. Remedidble. And, L I
2. Remedileﬁ.

i. Remea’iaéle Rngu arc of Two Kinds;
mix. They are rcmediable, either, ‘
I. B} Entr], which is call’d a Riga qf
Entry,
2. B] Air'ion, which is caH’d aRngt of
Aéiion. And thefe are,

I. In caﬂe of Uﬁxrpatio» of Advowibn.
2. In Cafe of a Dzﬁazttinuance by Tenant in
Tail, é'c. ' .
3. In cafe of a Diﬁi/in or Abatement, and a
" dying feized by fuch DiITcifor or Abate};
and a Difcem to his Heir. ‘

And.
Ikc Analyﬁs 0f the Lang. 2!

And here all the Learning of
Entries Congeable, -
Difcent: que T2211 Ermj';
Continual Claim, °
Infann, when bound, $23.

2. RemeJileﬁ Rzglzt: are where the Rental]
15 taken away, though the Rig/at remains;

Which may be either,
J I By Warranty, Collateral or Lined, with
Affets. ,
And here comes in the Learningof
Bar: and Rebutter: by Warranty.

2. By Mnclaim upon a Fine.

3. By Limitation of Time By the 01d,
-. or the later Statutes, introduced in
inch Cafes, viz 32 H. 8. 21 34c. 1.

III The Tbird Thing I propoundedg was mare
the different Qualities and Relations in Are 863.19
gard of the Perfons having the Eﬂate. ”5 8“

And thefe are,
Sale 112mm:
2 ffointenams.
3. Tenant: in Common.
And here comes in the Learning of each
of theft:

$15,017.

 
 

9‘2

 

The Analyfu of the Lab.

 

C H A P. XXXIII.

Touching Acqui/itiok and vaﬂation of

.Eﬂater-in‘ Thing: Real. Fiiﬂ, B] At?

m Law.

T HUS far have I gone in a. Defcription

of the various Natures, Relations, and

l Kinds of Efiates; and now I come to the

Manner of Means of their Acquefi or Tran-
ﬂation.

_And an Eﬁate or Intereﬁ is thus tranﬂated,
'wz. ‘
1. By 145} of Law.
2. By Mean: of tbe Part]. Viﬂle prax’Seé‘i,

I. By A6? of Law there is a various Ad-
quiﬁtion of Things, according to their (evetal
Natures, «we.

I. Of Things Real that are Cbaz‘tels.‘
2.. Of Things Rea] that are Freehold;
3. Of Things Real that are Inheritance,

I. As to the Acqueﬂ of Cbattel: by A8: of
Law; though they are Real, they are of
the ﬂame Kinds as Things Per/Ema]. There-
fore 'via'e ante Sea. 27.

a? Only with this additional Exception ,
Thac‘Cbattel: Real go not to the Husband
immediately by the Marriage, unlefs he
futvives the Wife.

2. As
Ilse Aﬂabﬁs‘of 1/26. Law»,

2. As to the Acquel’t of Eﬂates of Freehold
by A6): in Law, there is only the Title
Oc‘cupancy which here comes in.

. ' . ' I. General.
And that 15 Cl!l‘l€f{ 2. Special.
1. 3. AS to Matters of Inheritance, the Titles
of Acquefls therein by Law léem to be
of TwoKinds, m. "t
1.. Such as is applicable to all Eﬂates
of 171/957‘2'tameJ "viz. Defcegzt.
2. Such as is applicable only to the
Acqueﬁ of ‘ Eﬁa’tes in Feessizpple.

l‘

. I. The Aé’t in Law applicable to-the Ac~
queﬂ of all ‘Eﬁates of Inheritance; Deﬁant, or
Hereditary Succeﬁion.

And this is either,
I. Of an Eflare Tail. ’
2. Of an E/z‘ate inFee-Sz'mple.

ivil‘ouchitigw the Defcent ’ of Eﬂéte: Tail ;
the Manner of the Limitation direé’ts the
Defcent as aforefaid.

Touching the Defcent of Fee~Simple, Two
Things are conﬁderable, viz.

1. The Rule: of the Defeent it fell:
2, The Burtben or Charge: that lie upon
the Heir that takes-i by Defcent.

I. The Rules of Delbents of FeeSimple are
direéted, either, .
I. By Cullom; or,‘
2.. By Common Law.

The

 
 

 

5;; Ilsazaazyﬁszyieetaai’: “

The Direc‘fion of Delbeﬂts by Cit/lam is
ﬁazious; as, . . , , ,
Sometimes to all the Sons, as Gently
kind. ,. t
Sometimes tothe youngeﬂ Son, as
BurrowEngltﬂr. V 4
Sometimes to the eldeﬂ Daughter;
0: Youngeﬁ, &6. a3 fome Cufto:
mary Lands.

The Direéiion of Delbents by the Cowman
Law,’ and the Rules thereof, are di‘
vets, viz. .

x.‘ Relating to the (Edit)! of the
Pe‘ffons in the Line",
Afccndiug,
Deﬁemling;
And Fanftvegfal.

2. In relation to the Number 05
Perfons inheriting, viz.
One, if it be a Male, is Heir.
A”, if they are Females. J
And here the Learning of Parceu’.
um and Partition. .

3. In relation to the Iriipedimm of
the Defcent 3 as,
Iﬂagitimation,‘
Half-Hood,
Attainder,
0r Corruption of Blood.

i am:

\‘IN
13% 253%: bf mm 533"“. ,

i. The Earthen upon the Heir: How and
wb'erc chargeable“ , _ .
1. With theDebt or Covenant of the
. Anceﬂor.

2.131% the Warranty of the Ma.
- or. ‘ h

, II. The Second Kind of Means of Acqui-
ﬁtion by Aét in Law, refers only to Ejfam in
Fee-Simple; as,

Firﬁ, By Preﬁription or Cuﬂm; wbi‘cﬁ’is,‘

1. Of ,Thing§ in GM]? and, Sub/fami'ue 2
And thus a. Right of an [momma] babe;
ritqnce is gainablc. , ,. ,

2.‘ Of Things incident and appurtenant;
And here of: Preﬁription or Cuﬂom; the

Nature, Kinds, and Eﬁ‘eéts thereof.

Sawﬂy; By Eﬁbeat; which is either,

1. For Default of Heir.

1. For Attainder of the Tenant, viz;
For Elan], to the Lord.-
Fdr Tmfon, to the King

snag.

 
 

96

 

Ihe’Aﬁab/iiof we Li‘ziﬁ.‘

‘ r“

s E' c T.l-xxx1v.

Cance‘rning Acque/l: hj the Menu of the
Part}. And Fiiﬂ, By Record.

A "éqtt‘e/ii‘:_s*of E/Zaref by the Mcaph‘shof the
Party himfclf, may be of TWO Kinds, ’
viz. ' " '

I; By Wrongg . ‘ -
2. By Right or Titge.‘

'Arguzﬁtiom‘h] :Wfbng ‘arcal‘fo of TWO f'Kinds,
tum. ., ‘ V
1.-By~Wrong ’toaChéttel; as; - ’
' Eieélmem of Farm; - hi;
“LEjekSr'men't of ”Gard, i: .
2- By Wrong to a Ergeholdg as, .

Ahatemwt; ' “ -"- '

Dzﬂézﬁn;

[wruﬁm ;

Uﬁtrpatian. .1

2"}
.1, .

Acqniﬂtion [7] Right or Title, is likewife of
Two Kinds:
1. By Conveyance.
2. By Forfeiture.

Acquiﬁtim h] Conv‘eyame‘ Here may be
broughchin all the Methods and Courfes of
Aﬁrancesh and Conveyance: of Law’s, which
lets in the moﬁ ample and conﬁderable Part
of the Law.

3 Con.
The Anaévﬁs 6f the Law: . 97

Conveyance: therefore are of Two Kinds:
I. By Matter of Record.
2. By Matter in Pair.

1. By Matter of Record, they are either;
I. By Fine
2. By Common Recovery,
3.3)! Deed enroll a’.

I. By Fine, where comes in all that
Learning, viz.
I. Their Kinds.
2. Their Eﬁeérs.

Their Kinds are in general Two, vie.
I. Fine: at Common Law.
2. Fine: with Proclamations.

And here of their Kinds in fpecial.

Their Effeéts ;
I. In relation to bar Prioiex, or
2(.‘rwueymrce'‘af Eji‘ater.
.ln relation to Strangers, Nim-
2Claim

2. As to Common Recoveries, therein are
conﬁderable,
I. TheirKinds, with treble, double,
or iingle Voucher.
2. Their Eﬂ'eé‘ts.
I. In relation to tmmferrz'ng or
barring Ef’rates in Fee Simple.
2. In relation to barring Eﬂates
gail, Remainders, ReverﬁonsJ
. c.

H 3. A3

 
 

 

9-8 The Analyﬁs of the Law;

3. As to Deedsenroll’d, they are of Three
Kinds, win,

I. Deeds enroll’d by fpecial Cu/lom,
as in London,

2. Deeds enroll’d at Common Law.

3. Deeds enroll’d in Purfuance of
the Stat. 27 H. 8. or Bargain, and
Sale: enroll’d:

thrcof hereafter.

 

SECT.
The Anab/is (if the Lab.

 

S E C T. XXXV.

Concerning Conveyance: 6} Matter in Pais.

_.Aztd Fir/f," Of Deeds.

Conveyance: by Matter in Pair are of Two
Kinds, rvz'z.

I. Conveyance: without Deed.

2. Conveyance: by or with Deed.

I. Conveyance: in Pais without Deed, are
either,
1. Of Cbattelj' or2

)

2. Of Free/Joidx.

1, Of‘C/mttels; as, Leaks, or EXtCntS of
Land, and may be either,
By Grant or Afﬁgnment; ’
By Parol;
By Exchange; Deg/m.

- 2, Of Freehold: of Lands by Livery. Of
this hereafter.

II. Conveyance: in Pair with or by Deed.
Here we may conﬁder,
1. Of the Natureof Deedxthemfclves.
2. Of chair Eﬂcci‘ or Eﬁcacy in relation

to,
Acquiring }
Transferring Eﬂatcse

H 2 Con- .

99

 
 

 

100 The Analyﬁi of the Law:

Concerning the Nature of Deeds, they
are conﬁderable :

I. Simply in thug/elves:
And here the whole Learning of Deeds,

me.
Of the Parties thereto, and their
Names.
Of the Kinds of Deeds, «viz. Inden-
ted and P0”.

Of the Part: conﬁituting Deeds:
Scaling and Deliveiy, é'c.

2, With relation to the Pafﬁng of Ei’tates;
and fo they are caH’d,
Charters,
Grants,
Fetﬂmentx.

1. Deeds ﬁmpl] conﬁder’d:

I. Their Conﬂituent Parts, 55¢!an
and Delivery.

2. The Parties to them; Grantar and
Grantee, @‘c, their Names, (9'0.

3. Their Kinds, Indented, and Poll ; and
the Efeﬁ: reﬁzlting from both or ei—
theri

Particularly of Eﬂoppel.

2. Deeds conﬁdered with relation to their
Ufa, efpeciaily in Gram, Feoffments,
and other Conveyance;

And
I The Analyﬁs of the Law;

And herein we ‘conﬁder,
1. Their Kinds.
2. Their feveral Parts.

As to the Kinds of Deeds, they are either,

I. Such as have their Eﬁmcy without the
Adjunét of fome Other Ceremony.

2.. Such as to their Efet’h require, another

' Ceremony to be joined with them.

I. As to the former of thefe, they are of
Three Kinds : ‘
Grants ;
Releafes ;
Conﬁrmations.

I, As to Grants: There are many Things ,

that are of an Incorporeal Nature; as, [Ad-
wowﬁtm, @tber, Liberties, Commons, 670.]
that,

I. Cannot paié from one to arm.
ther by A8: of the Party without
Deed. Yet,

2. Pafs by Deed Without any other
Ceremony requiﬁte.

2. As to Releafex, they are of feveral Kinds ;
\tviz.

1. Releafes, whereby the Thing reiea~
fed is extinguijh’d in the Poﬂ‘eﬂion
of the Releafee; as, Rights, Com-
mon, Seigniories, Rents, 5m. and
other Proﬁts iﬂixing out of Lands
by Releafe to the Tenant.

H 3 2. Ken

lot

 
 

 

N

to The Andy/is of the Law.
2.~ Relcafe: whereby an Eﬂate is tranf:
ferr’d, which is either,
I. By [Witter 1e Eﬁare, as of one
Joincenant [O anather.

2. By Encrmfe or Enlargement of
the Efiate, being made by the
Reverﬁoner to the LeIIee in Pri-
vity, with aptenlarging Words,

3. As to Cmﬁrmzztiom, they are of Two
Sorts, 721:4. -

1. Carraégmtiqg the Efiszte of which it is
nwde‘, as, Dmn and Chapter: con-
ﬁrming the Grant of the Biihop;
Patron and Ordinary confirming
the Grant of (he Parhm', or the
Diffeiﬁee that of the Diﬁeiibi'.

2. Enlnrgiyg the Eﬁiate with 3p; Words,

I asJ in Gale (ii Re/mﬂl.

II. As to the Other Sort of Deeds that re—
quire a Ceremony concomitant with them,
to make them (fciiugl, wiz,‘

I. A Liver] 0f Seiﬁn in the Cafe of a Feoﬁ‘l
mam, though by Deed.
"And here comes in a" the Learning
of Livery, Letter: of Attorney to make
91' receive it, * c.
The Analyﬁs of the Law. 193

2. Atromment requiﬁte in Cafes of Grants,
of Reverﬁons, Remainders, RentsJ Seig-
niories.

'And here of Attornments'; how, by
Whom, and When to be made.

And the feveral Eﬁe&s thereof, wire.

I. To create a Pri'vity of Diffref: or
Ac‘lion, as in the Cafe of Firm, Qua!
:‘fmz': clumat, dem Redditum reddit,
Per 7m: Semitia.

2. To paf: the Intere/l, as in cafe of
Grant:, jingl] by Dead.

Thus far of the Nature of Deeds in're-
ference to the Acqueﬁ of Lands.

But there are beﬁdes this, in rehtion to
Deed: paﬂing Lamb, {everal Pam that ufuahy
occur in Deeds, and which take uphlarge
Titles, 'viz. ,

x. The Partie!,and thereimheir Names, and
Names of Purchafe; as, Grantor, Grams,

Faﬁfor, Feoﬁre.
2.. The Pram/ﬁr of the Deed; contain-
‘ ing,
1. EfTeé’cual Words to pafs the Intereﬁ,
as Grant, Enfecﬁ”, éVc.
2. The Thing granted, which takes in,
(he wholeTide ofCamprz'Le, and Men:
Comprize, "viz.

H 4 1. By

 
 

 

1 04' The Andy/is of the Law;

I. By what Names Things pafs:

2. What Things are compriz’d with-
in the Grant, rain.
I. Things in Groﬁ.
2. Things parcel.
3. Things incident, appendant,
appurtenant, 6n.

3. The 11mm of the Deed, which ii:
mits the Eiiate; and what Wordsare apt
for this.

4. The Reﬁr'aation or Reddena’nm; and What
{hall be faid a good Reﬁrvarion.

5.13113 Covenants; which are of TWQ
inds: "

y?) Covenant: pcrfonal, and their Expo-
ﬁtion. ‘
And here of Covenants; as,
1. What {hail pads with the Land,
and whatnot. '

2. Their Expoﬁtion.

zg’ly, Covenants realJ which is War...
ranty.
And here of that Learning; as,
I. What their Kinds; ‘ '

Generaé
Special,
Linen],
Collateral.

3? W113?
The Analyﬁs ofzthe Law; ‘- ”mg
2. What their Elﬁéi‘: :
I. By Way 0‘!. Aﬁion, meber,
Warranria Cbzzrne,
2. By Way of Bar, or Rebuttcr_

6. The Condition 01" Defeaﬁmce.

And here all the Learning of Condition:
"and Limitations: And incident to this,
Learning of Deed: falls in thofe Two
great Titles, viz.

I. Mon/frame a’e Fain, or Where
Deeds are neceﬁ‘ary to be pleaded
or ihewn.

2. Expoﬁ‘tion (Ie Fain; which is full of
inﬁnite Variety, according to the
Texture of Deeds, and their
feveral Claulés.

 

 
 

 

~3- h.-- '

m6 ‘ The Anabﬁ5of the Law.

 

gr:

5 E C T. XXXVI.
Of Conveyance: [3y Force of Statuter.

AN D thus far of Conveyance: according to

the Courfe of the Common Law, and
:1an proceed to Corrmgmmce:J according unto,
or by Force or Power of Aéts of Parliament.

Conveyance: accorgiing to or by Vertue of
Aé‘ts of Parliament, are of Two Kinds, viz.

1. By Way of Bargain and Sale, according
to the Stat. 27 H. 8.

2. By Way of Ufe.

And this latter Way is either,
1. With Tranfmutation of Poifefﬁon;
as,
By Feoffment or Fine.
2. Without Tranfmutation of Pofi'eil
ﬁon;
By Covenant to {Land feized.

And this is a large Field, for all the
Learning of Ufa come in here; as,
, Of Conﬁdemtiam (uiﬁciGﬂt to wife it.
Contingent Ufa, (5%,
How deiiroy’d;
How revived.»

 
[be Analyﬁs‘of the Law. :97

3. By Way of Devi/E.

And here all that voluminous Title of
Devi/es, and the Incidents thereto,
may be introduc’d.

 

S E C T. XXXVU.
Concemiﬁg Cizﬂomary Eﬂatex.

HUS'far of Eﬂates at Common Law; we
come now to Cuﬂomary Eﬂatu, viz. Tc-
nant by Virge, or by Copy of Court-Roi].

And becaufe this 15 a fpecial Kind of Cid/l0—
rmr] thzte, and I {hall not have again to do
with it, I {hall ﬁlortly conﬁder thefe Two
Things: wait.

I. The Nature or Kind: of Eﬁates gran
table thereof.
2. The Incident; relative (hereunto.

1 Touching the Na rare ofEﬁatesgrancabIe,
the Cuﬂom diieéts it.

For by Cu/fom 1c is glantable,

I. In F28 Simple.

2. m Fee Tail: And here Of the E”—
tailmg Covbold: where it may be,
and how barred

3, ForL Life or Liver.

2. Touch

 
 

 

/

1 08 The Analyﬁs of the Law:

2. Touching the Incident: relative to Copy:
holds, they conﬁﬂ either in,
[1. Made: of Acquiring: Or,
2. Manner (f ﬁamferringj

Touching the Trang‘erring the Intereﬂ of
the Copyholder, it is done,

I. By Hereditary Defcent : And here of
what Eﬁ'eét or Ufe the Heirs Ad-
million is.

2, By Surrender; which is either,

I. In Court.

2. Out of Court, into the Hands of
the Lord, the Steward, Cul’ro-
mar Tenants when warranted
byt e Cuﬂom.

And the Efeé} of fuch Surrender;
where, when, and how it muﬂ
be prefented.

The Legging concerning Copybold: is grown
very large, and takes in very many Particulars:
For Inﬁance;

I. Who is Lord to make a Grant or ﬁdmz’r-
tame: What a Dominm pro Tempura, or a
Dzﬂeiﬁrr, may do therein.

2. Who is 3 Stewart! to perform that Ofﬁce,
and his Power therein.

3. What the“ be faid a Copybolrl Manor, or
a CopyboldCourt, to enable fuch Grants.

4; What
The Auquﬁs of the Lav? ; 3,62

4. What {hall be (bid a Forfeiture of aCOpy.
hold Eﬂate:
By Waﬂ;
By Alienation;
By Refufal to perform Services;
Who {hall be bound by fuch Forfeiture.“
Who {hall take Advantage of it.
What {hall be a Difpenlhtion with it.

Beﬁdes which, there are very many more
Conﬁderables will fall under the Title of Cu.
ﬂowery Eﬂates, or Copybolds. \

 

SECT.

 
 

.

1ch

The Anazyﬁs‘ of the m.

 

 

, S E C T. XXXVIII.
OfJ‘Ir/lnﬂatim of Property [y Forfeiture.

Now come to theft: Tranﬂatiom of Eﬂam

which happen by Default of the Tenant
in Fee—Simple, rw‘z. (uch as are Forfeitures of
his Ef’cate.

And thefe are of {Everal Kinds:

I. Forfeiture by Armina'er; either,

1]}, Of Treaﬁm, which gives the Land
to the King by the Common Law.
(And this lets it) all the Learning
touching Ofﬁce!) Petitions: 6%.) Or,

2‘21], OfFelan}; whereby it elcheats to
the Lord-1 whereof before, Seéi‘.

2. Forfeiture by Purcba/é in Marrmain with-
out Licence, whereby it goes to the
Lord.

3. Forfeiture I2] C(ﬂs'ng from doing his Ser.
vices per Biennium. (And here comes in
the Learning 01 Crﬂi/m)

4. Forfeiture by Alienation, contra Formam
Col/tarionii.

SECT‘

 
. The Analyﬁs of, the Law;

 

S E C T. XXXIX.

0f Wrong: or Injuries: And Fir ,. 0f
. Wrongs to Perﬂms. ﬂ

Come now from the Conﬁderation of
Rig/Jr: or jam, to conﬁder of Wrongs 0r
Injurm; wherein I {hall take this Order, viz.

Il‘irﬁ, I {hall purfue the fetteral Nature: of In;
juries, as they are feverally applicable to thofe
Things which are the Subjeé’ts Whereto the
iéveral Rights aforefaid are adherent.

Secondly, Becaufe it will be a ihorter and
plainer Way to mention the lEveral Nature:
of tbe Remedies applicable to the feveral Kinds of
Injuries, or Wrongs, I {hall mention thole Aé’cions
that are applicable to the feveral Injuries, to-
gether with the Injuries themfelves; leaving
the farther Expllcation of the Manner of Ap~

plication of thofe Remedies unto the Third .

and Proper Head, concerning Relief: on Re-
' medics.

As to Injuries, or Wrongs, they are of Two
Kinds, viz.

1. Such as are of Eccle/z'a/liml Comm/same.
2. Such as are of 237729055! Commeme.

Such

III

 
 

1:2 The kindly/is of the Lair:

Such as are of Ecclefz'nﬁ‘icol Connzomce, are
either,

I. Criminal.
2. Civil.

1. The Wrongs Criminal of Ecclq/z‘aﬂz‘cai
Conuzonce, are fuch as are Publick Scan-
dal: and Ofmces, wherein the Judge EC-
cleﬁaf’cical proceeds, either,

I. At the Profécution of fome Per~
fon: Or,
2. Ex Oﬁicio, 6‘” pro ﬂzlute Animm; as,
In Cafés of Adultery, Fomicmion, In-
ce/f, Propbnnotion of Sacred T/oing:J or
Timex, (or Places) Blofpbem], Herefy,
and divers others.

2. Wrongs Civii of Eccleﬁo/lical Commence,
are of theﬁ: Kinds, viz.

I. Defamation in fome Particulars.

2. Tjtlres, their Right, Subﬁraétion, é‘c.
as alfo Oblntiom, Mortuaries, Pergﬁom,

3. Caufes of Spolintion in relation to
Beneﬁce: Ecolq/z'oﬂicol.

4. Matters of Matrimony and Divorce:

5. m1]: or Tcﬂaments, and Adminiﬂra—

tiom.

There Wrong: that are of “Temporal Conn:

name, are of Three Kinds:

1. Such as are of the Conuzance of the Ad.
miral’s Court; as, Piracy, Deprea'otiom,
and Wrong: on the High Sea.

2. Such as are of the Con/look and Morﬂmfs
Court; as, Ufurpotion of Coot: of Army,
goiter; of Precedence, (9r. .

3. Such
, Tie Amzlyﬂi of tbe Iii.

. Such as are of the Commence of. the
Common Law Comm.

Us)

This later Head is very large and exten-
live; but in general, may be divided
.into Two Kinds : 4 -i

I. Such as are Crimiml or Pullick,
wherein the Wrong-Boer is pro-
ceeded againﬁ Criminally, And
thefe are to be diﬂrihuted under
the Titles of Plea: of the Crown.

2. Such as are Civil or Private;
wherein at the Suit or Proiecution
of the Party injur’d, he has Repm
ration or Right done. I

Touching Injuries to Civil Rights or Intere/ii,
they muﬂ be diﬂributed according to the le-
veral Natures and Kinds of thofe Rigor: which
by thofe Wrong: are injur’d : And ﬁnce we
have already before conﬁder’d of Two: Sorts
of Rig/air, ruiz. Right: of Perﬁmsj anid'Riglat:
of Things, I {hall begin with thofe ’Wrongr that
relate to the Rig/at: of Perﬂms.

And ﬁnce in the Diﬂriburion we have
made of the Right of Perfom, we have ob.
ferv’d, That the Rig/at: if Per/om have a den.
ble Conﬁderation} viz. ‘ ' _ ‘
1. One Alfoiuie, in reference to the Perlbn
himfelf. And, ' ._ _ ,r

2. Another Relative, With',Refpe,& to the
Performs related to. him. " ’ .'

We {hall diﬁinguilh Wrongs accordit'igly.

L KIWI:

‘1‘ r3

 
 

no,

The Analy/is of the Law:

Wrong: therefore of Common Law Conu-
zance, which are Private or Civil, are fuch as
are done either,

1. By Particular Perfom', or,

2, By Coztntename of Legal Proceedingr.

And the former Part of thefe‘ Wrongs, are
done either, .
Iﬂ, To the Right: of Per/om; or,
2111}, To the Rig/m of Things anncx’d to
Perfons in Point of Property or Eﬂate.

As to I/Vrong: that are done to Perﬁms, or
in relation to the Rig/2t: of Perﬁms, they are of
Two Kinds:

1. Such as relate to the Perfon confider’d

abl‘nlutely, and in himfelf.

2. Such as relate to him, as he Hands in

lime Kind of Relation to another Per-
(on.

As to {uch Wrong: as relate to the Perfon

.himfelf, they are of Three Kinds. Every
‘ Man has a Right to his own Perfon; anda

Wrong done to that, is neareft to him, be~

nature a Man has the greateﬂ: Propriety in his
. own Perfon.

“And the Wrong: thereunto are alfo of Two
Kmds, viz,

I. Wong: :0 bis Bad].

2. Wrong: to hit Name or Reputation : For
I reckon this amongl’t thofe Wrongs that
are done to his Perfon.

I. The
The Analyﬁs of the Law.

I. The Wrongs to his Bo‘abr hrc of Two

Kinds, «viz.

I. AﬂEzulm; as, Beating, Maiming, Wound-
ing ofa Man:

Wherein the Law gives a double Remedy,
mm. »
I. Preventionnl; by Security of the
Peace.
2. Remedial, by Aéﬁon, either of
'Trefpaﬁ, ,
Aﬂimlr,
Batter],
Munding,
Appeal of Mayhem.

2, Impriﬁmmem, Without Ianul‘or juﬁ
Caufc:

Wherein the Law alfo gives him a. double
Remedy, viz. ,

I. To remove or avoid n53 Imprifonment,
as by Habeas Corpus into the King’s.
Bench or Common Pleas, Writs of
Mainpriﬁz, De Odie é“ Atz'o, De Ho-
mine Replegiamz’o, €90. -

.2. To recover Damages by We] cf
Compenfation for it, by Aéﬁon of
Fol/‘e Imprifonment; 01' if the Impri—
ﬁnmem‘ be lawful, but the Party baii-
lable, and his Bail refufed,,in Tome
Cafes a {pedal Atlion of the Cafe
upon the Star. 23 H. 6.

I z 11. As

115

 
 

'1' 16 The Analyﬁs of the Law.

11. As to Wrongs done to his Name, they
-are of Two Kinds, viz.

I. Scandal by Words fpoken, Libeis, Pi-
é’cures, (71. wherein the Remedy is to
have Compenfationin Damages by Aé‘cion
of the Cafe.

And here comes in all that large Tide
of Affio‘m of Slamier, and What
Words are feandalous.

2. Under Prercme of a Legal Prom-mien,
but falfe and maficiom; as, for a falfe
and malicious impofmg fome grea:
Crime by Complaint to a Juﬁ'ice of
Peace, or by preferring a Bill of Indie):-
_ment falﬂy and maiiciouﬂy.

The Remedy the Law gives, isJ
1. Sometimes by an Aﬁz’on of‘Confpirac}.
2. Sometimes, and more ordinarily, by
(162072 upon the Cafe.

 

fSEC'lZ

 
763 Analyﬂs of the Lair.

 

 

S E C T. XL.
Of Wrong: to Perﬂmr molar Relation.

T HE Wrongs that are done to a Perlth
, under fome Kind of Relation, princi-t
pally take in the Three Oecanomical Relations
before mentioned; as,
I. Hwband and Wife.
2. Parent and Cﬁildp
3. Maﬂer and Servant.-

And Tome of the Civil; as,
I. Guardian and Pupil.
2. Lara! and Tenant, (W.

1. Fir/l, For Husband and er; as where
the Wife is taken away from the Huf-
band, the Law has provided a Remedy
for him by Aétion of Trefpa-lé De Uxore
Abduc‘fa. So if {he be beaten, a fpecial
Aéiion of Trefpals (on the Cafe) for
beating his Wife, per quad Gonﬁrltium
anti/it. ' '

a. As to Parent and Cbiia’: Wrongs of this
Kind are either,

I. By taking away the Child under
Age out of the Cuﬁody of the Pa-
rent, where the Rented} is Atlion
of Trefpafs.

lg ‘ 2. By

’117

 
 

118 The Analyﬁs of the Law;

2. Bytaking away, and marrying the
Heir within Age: The Remedy is,
Treﬁmf: 0r Ram‘fhmem, to recover
Damages, and the Value of the
Marriage.

3. As to Maﬂer and Servant :

I. If a Servant be~retain’d by another
before his Time is expir’d; Remedy
is, Aetion on the Cafe.

2. If a Servant be beaten, whereby
he is dil‘abied to work; the Remedy
is, Aétion of Trefpais or Cafe, per

quad Sermtz‘am anti/it.

We come now to Intereﬂ: of Civil Relatiom,
and the Wrongs therein refpeét,

1. Guardian and Pupil.
2. Lord and Tenant.
3. Lara? and Vii/em.

1. As to the Firﬂ of there; The Guardian
has an Interei’t in the Pupil in thefe Two
Kinds of Guardian: ,-

1. Guardian in KnigbtJ-Ser'vice.
2. Guardian in Savage.

if the Ward be taken away, or taken
ava and married, it is 3 Wrong t0.
the Guardian, and remediable;
1. By Tree/pafs.
2. By Writ of Ramﬁment of Ward.
3- By ”fritof Rigs}?! Of Ward.

2. A5
T be ‘Analyﬁs of the Law; 1 i 9

2. As to that of Lord and Tenant: If there
be Tenants at Will, and either by Me.
naces, or by unlawful DiﬁreiTes, they
are driven away from their Tenancies, it
is 3 Wrong which the Lord may repair
lgmrfelf in by fpecial Aﬁion of the

a e. 7

3. So if a Villain be forced from his Service,
or beaten or maimed f0 that he is difl
ab‘ed to pexfnrm fuch Service, an Aé’cion
of I‘rcfpafs lies, per quad Servitium amiﬁt.

 

I4 SECT.

 
 

1 go -;. Tbeﬂnalyﬁsiof the Lani} ;

 

s E. CT. XLI.

0f Wrongs. m relation to Rig/at: of Thing.
And Firﬂ, of Thing: Per/(37ml.

. Itherto of Wrongs as they relate to Per-
H fons, either abfolurelyJ or under Rela-
tions Oeconomzcal or Civil; I come now to
fuch Wrongs as relate to Things, and thofe
are either

I To Tbmg: Perﬁmal.
2. To Things Real.

W1 ongs relating to Thing: Perfonal are of thefé
Kinds, 1222.. According to the Nature of the
Things:

I. Perﬁmal Thing: 1n PoiTeiT on
2 Per/57ml 7%ng 1n Aéﬁon.

I. As to Perfomzl Thing: in Poﬂiﬂian 'w'z.
Goods Cattle, Mme], (ﬁve the Wiongs there-
to are of Two Kinds:

1. An Unjuﬁ Taking, or a Taking and
Detaining of them, which' IS an Injury,
and for which the Party grieved has his
Remedy, 'm'z. either,

1. To have the Things themfelves, if
detained by Replemn
3. To have Reparation in Point of
Damages by Aé’cion, either of Trefl
yaf: Vi eff/{rm}, or of Troverc’TCan.
tapeworma 2- An
The,;Azzab/ﬁs'of the Law;

2. An unjuﬂ Detaining, Without an unjuﬁ
Taking.
The Remedy : y
to. The Things in Specie, byReplevin, if
‘ ‘ taken for Damage: only; or,
1. Trove? and Converfz‘on' for the Thing,
or if it can’t be hadif for Damages by
'Detimte.

And although Charter: concerning Land
be in the Realty in refpe&_of their. Relation
to the Land, yet they are not in. themfélves
any mare than Paper, or Parchment, and
Wax; and therefore are Within the aforefaid
Rules, in refpeét of taking or detaining
them.

‘ 11. Perform] 75mg; in 246215914 are likewife of
Two Kinds; . J . ‘
I. Such Things in Aétion. as arife by ex-
prefs Contract or Agreement.
2. Such Things in Aetion as atrife by
V implied Comma/Cf, or 25m}? ex Con.
Imam

I. The former Kind are of Two Sorts:
I. By Deedl or S pecialz‘].
2. Without Deed or Specialty.

g. Thofe that are with or by Specialty are
glib of Two Kinds, viz.

I. Debt; :

121‘

t g,
i
a}
I
It.
E
P.
|i
a

‘ U
é
E
l
.1
r

 
 

x 22 Tim Anabﬁs of the Lari:

. I. Debts:
And the W rangethat relate: to them is
Non.pa]ment according to the Deed.
The Remedy is Action of Debt, to re-
cover the Debt it half, and Da-
mages for Non-payment, ‘

2. Cwengntr:

The Wrong herein is Breach of Cover
want.

The Remedy, Action of Covenant .-
And here comes in the Learning of
Covenants.

What Words make a Covenant.
What Covenant: paﬁ to the Al:-
ﬁgnees, é’c.

2. Thofe that are without Specialty;

1. D65”:

The Wrong and Remedy the fameas
before, in Calés of Debts by Spe-
0541!].

And hither all'o may be referr’d thofe
Things, which though they favour
of the Realty, are yet recoverable
by Action of Debt; as Rents re-
ferved on Leafes for Years, Re-
lief, (9'0. ~

2. Promifer; for a good Conﬁderation,
Whether they be Promiﬁr that ariﬁ by
Law, or fuch as are collateral,

Remedy in all fuch Cales, is to recover

_ Damage: by Aﬂ'ion on the Cafe.

And here comes in, Warranty of Chat-
tels upon Sale. 2. Such
T be Andy/is of the Law: ' E23

2. 'Such ﬂing: in Aﬂion as arife by an im. ’
plied Contraé? are many: For Inﬁance;

I. InﬁContraﬁsﬁr Things, it is generally in-
tended, Tbat none fell an] Tbing that be
know: not to be 62': own; if he does, an
Aé’cion on the Cafe lies in Nature of
Diﬁ'eit. ‘

2. In Contmﬂ: for Viﬁualx, is implied, Tim:

. we} are not umpboleﬁme; if they be, an
Aétion of the Cafe lies.

3. In Perfons that undertakea Common T ruff,
it is imply’d, 77m tbe} perform it; other-
wife an Aétion on the Cafe lies. As for
lnﬂance:

In the Cafe of, *

I. A Common Hoff, is to {Ia-cure Goods
in his Inn. '

2, A Common Carrier, or Bargeman,
to fecure the Goods he carries.

3, A Common Farrier, that he per.
form his Work well, without hurt-
ing the Horfe. ’.

4, A Common Tailor, that he doe
his Work Well; and {o of other
Tradefmen, CM.

SECT.

 
 

3.24}

The Analyjie of theLaw;

 

S E C T. 'XLII.

Touching Wrong: to Thing: Reel, without
diﬁzoﬂeﬂing the Part}; and their Re-

medial.

Come- now to thofe Wrong: or Injuries
which are done to Thing: Real, and the
Right: of them.

And thefe may be divided in thefe Two
Kinds, «viz. '
1. Such as are without a Removing the
Owner or Proprietor out of Poﬁ'eﬂion.
2, Such as are with a Remover of him out
of his‘Poﬂaefﬁon.

Thofe which are Without a Remover out of
Poﬂbﬂion, are of feveral Kinds: I ﬁlall re—
duce ’em (0 thefe following, viz.

I. qupaﬂes by breaking any Man’sGround-
Hedges, (9‘6. by the Parcy (Trefpaffor)
himfelf, or by his Command, or by his
Cattle, évc.

Remedy, to repair the Party in Damages,
by Aé’cion of Trefpafs, Quare Clauﬁam

. fregir.

2. Nufanmﬁ

. in?
The Analyﬁs of the Law. 1 25

2. Nufam‘u, or Anmjances, Ciihcr, ,

I. To [mare/Z: in Things (301720766113 as
Houfes, évc. by Propping Lights, ere-
éiing Lime Kilns, or Things ”annoey-
ing another’s Dwelling, or withdraw-
ing Water from 3 Mill, (94‘.

2. Or, To Things Incorporeal; as,

‘1, To Cbemim or Ways, by obﬁru-
éﬁng them, é’c.

2. To Markets, by ereéling anmher
Market too‘nealr, them.

3. So of Ferries, by erec’ting another
too near.

And inﬁnite more Inﬁances may be
given, the Title of Nufmzces being
very large.

The Remedies in all thefe Cafes are
either, ' "

1, Witbout Suit; to abate, or to re-
move them, if done to Inberie
tame: Corporeal or Chemim.

2.. By Suit; as, V
1. Q4051 permittat, Aﬂze of Nu.
ﬁmce, to rem0ve the Thing, and

recover Damages.
2. A5250}: on tbe Cafe to recover
Damages. , Via’e Seéf.45, (947.

3. Dzﬂurlumces: And this principally con-
cerns fuch Real Thing: as are, Incorporeal:
.For Inﬁance;

3 x; Diﬂur—

 
 

 

I J 28 «The Amtlyﬁs of the Law.

And this Injury is of Two Kinds, accordv
ing to thefe Reiations, viz.

1.»In relation betw en the Owner of the
So“, and he that has 2 Proﬁt apprendte
out of it; as, Eﬂoverr, Pcwwge, (9%.

If the Owner of the Soil deﬁ'roys the
Wood, the Reine/i] ﬁes by A‘ﬂiee,

Aétion on the Cafe to retrovet Da-
mages. .

2. In relation between the particular Te~
mm, and he that has the Raver-{ion or '
Remainder of Inheritance; 35,2 ”751/! in
Houfes, Woods, 2Lands, c’rc. is a Diﬁn—
herif‘on to the‘.,Rezxérﬁbnér, who has Remedy
either, “ C; u

1, Preventive byx'Eﬂrepem‘mr, prohibi-
ting Wgzjz‘iwhigch aifo lies againﬂ a
Tenant; Where the Land is in Suit :
Or, . : ‘ '

2.‘ Remedial, hy'Aétion of I’Vaﬂ;

”In theﬁnet; '
In the Teiﬂﬁf.‘ .

And here comes in a great Flood of ,

Learning:
What {hall be fair] Waﬂ ;
When, and againﬁ whomjt lies, (W.

, And although under this Tide‘of Wrongs,
without Removal of Poﬂ'e/jion, I héve brought
in Remedies by Aﬂizgtﬁc. whichvralways {up-
pofes a Difpoffeﬂion, yet really it is no, Dif-

oﬂ'eﬂion in thofe Cafes before inﬂamed,

ecaufe they concern Thing: Incorporéal ; where-
in, though the Party may admit himfelf dif-
feifed,
The Andy/z: of tbe Law;

léifed, _ it is but a ‘D'rﬂ‘eiﬁn at Eleé’cion, and
rather made a Diﬂéiﬁn by his bringing an Ail
ﬁze, which the Wrong-Boer {hall not di-
fpute than truIy fo. And now:

 

S E C T. XLIII.

Concerning Wrong: zpbz'cb carry with them

rm Amotian of Poﬁﬂion.

' T HE Wrong: which carry with them an
Amation of PoiTcHion are of Two Kinds,
and concern,
I. The Right: of Chanel);
2. The Rigbt: of Freeholdx.

I. AS to the Right: of Cbattels, whereof the
Party is difpoffeﬁ’d by a WrongDoer, they
are thefe, rm. , ‘

I. Leafe: for Team.

The Remedy is by Ejeﬂione ﬁrma’; or if
by the Reverﬁoner, Quare ejecir infra
Terminum.

In both which, at this Day, he recovers
Damages, and the quﬁﬂion of his
Term.

2. Wardﬂsz‘ps and Holding over for ﬁngle or

double Value.

The Remedy is, anre intru/z't Maritagio
non Satitfac‘fo, Ejeéb’one Cu/loa'iae; and
againﬂ a Stranger, a. Writ chz‘gbt q“
War-d.

K 3.;Te.

129

 
 

130 The Analyﬁs of the Lem:

3. Tenants by Stat. Merchant, Stat. Staple,
and Elegit: Though they have but Chat-
teix, yet the Statute gives them Remeé;
for their Poﬂ'eﬂion by Aﬂize.

II. I come to the Right: of FreebOIJJ, and
the Wrong: done to them, together with an
Amorion «f the Poﬂi‘ﬂion: And thofe Rig/3t: are
of Two Kinds, viz.

I. Some only compatible to them that

claim not only a Freehold, but any Inhe-
ritance.

2. Some that are common to any that have
a Freehold only.
And accordingly, their Remedies will
be feverally diver‘ﬁfy’d.

Thefe Wrong: are of Everal Kinds, viz.
Abatement 5

Infra/ion ;
Diﬂeélin ;
Ujarpation ;
Diﬁontinuance ;
Deforcemmt.

xﬂ, Abatement is where one enters after the

Death of the Anceflor, before the Heir
enters.

The Remedy is according to the Nature
of the Defcent from his Anceﬂor,
By Aﬂize of Martdanceﬂor;
Writ: #14118, Beﬁzile, Coﬁnge.

2‘11}:
*Tbe'rdrzalj/is d the Lain):

za'ly, Intruﬁon is an Entring or Continuing
in PoITeHion after an Eﬂare for Life de-
termined. '
The Remedy : He in the Reverﬁon or
‘ Remainder may enter; or if his
Entry be taken away, has his Wrie
of [ﬂing/join.

' 341;, Di/ﬁim is a large Title, and is an um
lawful nrry and Ouﬁer of him that
has an actual Seiﬁn and Freehold.

And it is either,

1. Mt!) Force: In Which Cafe the
Party diﬂlﬁfed has his Remedy,
either,

1, By Writ of Forcilzle Entry upon
the Star. 8 H.» 6. to recover the
Poﬂ'eﬂion, and Damages. '

g.’ By Afﬁze. of Mme! Diﬂég/z‘n to
recover his Poﬂeﬂion, and Da-
mages, and the Party to be
ﬁned and imprifon’d for his
Force,

3. By Writ of Entry in Nature of

L in Aﬂize, to recover his Seiﬁ/t
and Damages.

g. W'itbout Force: And for this he has
’ Remedy by Aﬂize, or Writ of Entry,
ut ﬁqpra.
Now borh thefe Diﬂfeiﬁm. are either of
' Thing: Incorporeal, or
Ibing: Corporal].

152% chf

‘13:

 
 

 

132 The Analyﬁs of the Law.

1. Of Diﬂééfz‘m Incorporeal: This is not a!—
ways a Diﬂéiﬁn at the Eleétion of the
Freeholder. '

And Dﬂéiﬁn of Inheritance: Incorporeal
are various, according to the va-
rious Kinds of Incorporeal Inheri-
tance” as,

Commons;

Proﬁt: apprendre in another’s
Soil 5

Oﬁce: ;

‘1}:561;

Rent: by Reﬁue ;

Reple-vin ;

Encloﬁcre ;

Denial.

2. Dzﬂézﬁn of Corporeal Inheritance: are of ,
Two Kinds: ’
1. With an A5144] Cot/fer, as is re. ;
guiﬁte between '1
joinrenann,

Parcemrs,

Temmt: in Common. .

2. Without an Affual Ouﬂer, even by”
the Diﬂéz‘fee’s waving of Poffeﬁ
ﬁonppon an Entry made.

And all thefe Kinds of Diﬂaiﬁm
are done either to the Party
himfelf, or to his Predeceffor
or Anceﬂor.

And the Remedy is,

By 15%: ofEmrj for Diﬂ'eg'ﬁn.

And *

 
The Analyﬁs of the Law.

And thefe Writs of Entrjﬁlr Dag/29?);
are either,

1. In Nature of an Aﬂize againft
' the ﬁrﬁ Diffeifor; or in the De.
greesJ as in the Per, or Per (5' Cm',
againﬁ the Feoﬁee of the Dzﬂéifor

or his Feoﬂlee: Or,
2. They are in the Poﬁ when the
“Degrees are fpent, or when the

Tenant comes in under the Dif- '

l‘eif0r in the Po]! ;
As the Lord 17] Efcbeat, é'c.
And this Learning of Dz‘ﬁiﬁm, of
Aﬂz‘zet, and of Entry fur Difl
feifz‘n, are large and compre-
henﬁve Titles, and of great
Variety and Extent.

4:51], U/hrpan'on: This Title refers only to
Adeowﬁam; where one that has no Right
to prelént, prefents to a Church, and
his Clerk is admitted and inf’titutedJ and
continues in by Six Months.

The Remedy is by W’rit of Right of Ad.
'vowﬁm for the Patron in Fee-Simple.

And this alfo takes in all the Learning
of Adrgowfom, ,and the Proviﬁons
made by the Stat. We/i‘. 2. to fave the
Right of Poﬁﬂory Ao‘fiom againﬂ Ufur-
pation:

I. [Where it is upon the Pre‘decef-
or.

K 3\‘ 2. Where

‘33

 
 

 

 

 

 

~’1 34 T he Analyﬁs of the Law.

2. Where it is upon the Anceﬁor
in Tail. ‘

3. Where upon Tenant for Life,
Guardian in Chivalry, (yo.

stbl}, Diﬁ'ontirmame : This is Where he that
aliens has not the full Right, yet it puts
the Party injur’d thereby to his real
Aé’cion; as in thefe Inﬁances, 'viz.

1. When the Alienation is by Tenant in
Tail, the Remedy is, for the Heir in
Tail, by Farmedon in Deﬁena’er; for
the Reverﬁoner, by Farmedon in Re-
mrter; and for the Remainder-Man,
by Formedon in Rewainder.

2. When the Alienation was by the Hui:
band feizedin Right of the Wife; at
Common Law the Wife was driven to
her cm“ in Vim, in or out of the De-
grees, as the Cafe fell out. .

But now {he may enter (unlefsa De.
{cent be caﬂ') after her Huband’s
Death, by the Stat. x 1 H. 7.

3. When it was by a Biﬂiop, éc, aiien-
ing without the Affent of the Dean
and Chapter at Common Law, his
Succeﬂ‘or was driven to his Writ of
Entry Sine aﬁmﬁr Capituli. But this is
remedied by Stat. 1 c9" 1; Eliza.

The Learning of Dz'fcontz‘nmzmu is
alfo very curious ; as,
Who may dii'continue; who
nor.
What {hail be a Dtﬁontinuance;
s: and what not. And
The Analyﬁs of the Law.

And as the Learning thereof is

ample, fo is that of the Re— .

medics thereof, by Farmedon,

éc.

ably, Deforcement: And this is a larger,
and a more comprehenﬁve Expreﬁion
than any of the former; for a Di/jéiﬁtr,
Abator, Intruder, Difcontinuer, Uﬁtrper,
and thofe that claim under them by
Fwﬂ'ment or Alienation, are allDefbr-ceors.

But the proper Application of the Word
is to fuch a Perfon, who, though he
has net a iuﬁ Right, has yet recovér’d
againft, or barred him that has the
true Right, either, '

I. By Default. And then the Re-
medy for the Party fo Qeforced is,

If he had only a particular In-
terefl, by Per guo ei Deforceat.

If he were Iffue in Tail of him
that f0 loﬂ, by Formealon.

If Tenant in Fee-Fimple, or his
Heir, by Writ of Right.

2. Or in a Real 116120» of an Inferior
Nature; as Writ if Entry, é'c.
And then,

1. Of the Iifue in Tail of him
that {o lol’t, or is barred. The

Remedy is, by. Formedon in De-

ﬁendtr.

2. Of the Tenant in Fee-Simple
that f0 loii, or is barred. The
Remedy is, by Writ of Right.

K4 SECTa

‘35

 
 

 

'1 36 The Hwy/is oft/1514139;

 

S E C T. XLIV.

Of Wrong: tint have the Cozmteimme of
Legal Proceeding: of Cottrtr.

Itherto I have proceeded'in examining
, Wrong: done by Parties .themf‘elves; I
now come ,to conﬁder 0f Wrongs done by
Courts, or their Ofﬁcers, in relation to Legal

Proceedings.

And they iarc; of .Two'Kinds, viz.
1. When the Court proceeds in a Caufc
whereof they have no Jurifdiétion.
2. When they proceed in. Caufes Where-
“ of they have Jurifdiétion, but proceed
erroneouﬂy. ‘

x. The for‘nier of thefe isaWrong, and the
Party has his Remedy or Relief therein;

1. By not fubmitting to the Sentence or
Judgment, and bringing ,. his Aé’tion
againﬁ them that execute it.

2 By Prohibition from a fuperior Court;

. " as when an EccleﬁaﬂiCal Court pro-
ceeds in a Caufe Of3Temporal COnu-
zance, or an inferior Court, that has
a iimittedhziidié‘tion, holds Piea of a
Thing done out of its }t’iriidié’tion.

2. The

 
The 'rA‘nalyﬁs of the Lam}

2, The latter" is when they proceed erro-
neouﬂy, or by committing fome Miﬂake
in a Matter within their Jurifdié‘tion.

This I call a Wrong: Not that the Party
that fnppofes himﬁelf injur’d has any
Remedy againl’t the Court, or the Judge
that thus proceeds; for if Men {houid
(offer barely for Error in Judgment,
when there is no Corruption, no Per-
fon would be Judge in any Cafe. But
I call it a Wrong, becaufe, in Truth, the
Party has a- Right to be relieved againﬂ
vfuch Judgment: And,‘ . ~ -

L In Caufe: Eccle/z‘a/t‘z'cal or Maritime,
the Law has provided a Relief
againﬂ an erroneous Judgment,

By Appeal to other yudgex.

;. In Can/é: of Common LawConuzance,

137

1 Errors or Miﬁakes in Judgment are -

revers’d.
I. In Court: not of Record, as
County COurts, and Courts
’Baron,
By W rit of Fulﬁ' ﬁzza'gment.
;. In Court: of Record, wherein
Error may happen divers Ways,
711%.
I. By Error of the 3947‘] in
giving a 511% V erdié? :
“ The Remedy is by At-

Mint.

2'. By

 
 

 

,v"

138 T be Anabﬁs of the Law.

2. By Error or Dzﬁ‘eit; if the
Sheriff returns a Party as
fummoned when he was
not, whereby Judgment is
againﬁ him by Default.

~ The Remedy is, by Writ
of Diﬁeit.

3. By Error oftbe Court, And
then .

The Remedy is,
Mi: of Error in a {upe-
rior Court.
(Indira Querela.

And here may come in the Learning of
Writs of Error, and Audita .derela’s.

 

SECT:
The Analy/is of the Law.

 

SE c r. XLV.

Concernixg Remedies, and the Method of
obtaining them. K

N the former Seﬂiam l have conﬁder’d of
the various Kinds of Wong: or Injuries,
and under thofe Diﬂributions have mentioned
their ordinary Remedies, and thereby have
much contraéted this Title; wherein I {hall
only give fome general Rules relating to the
Manner of the Application of thofe Reme-
dies, leaving every particular Remedial Writ,
together with the Procefs belonging to it, to
be conﬁder’d and digeﬂed under their fevcral
Titles in the former Seﬁiom.

Remedies for Wrong: are according to the
Nature of thofe Wrongr, viz.
I. Eccleﬁaﬂical.
2. Civil.

I. Ecolefi‘izﬂical Remedies are fuch as are ap-
plicable to Wrongs of Eoclcfz‘a/iical Com.
mama, and take in or include thele Two
Generals, viz.

I. The Court: or Place: where the faid
Remedies are to be had.

2. The Procef: preceding Judgment
and Execution relating thereto.

2. Civil

’1 39

 
 

 

'-7i4o The Andy/is of the Law;

2. (Evil or Temporal Remedies are fuch as
concern either
1. Mmi:z'me Injuries
2Military Injuries.
3. Civil 01 Common Law Injuriex.

I. In Reliefs or Remedies for Maritime In.
juries, are conﬁderable,
I. The Court of Relief: The Admiral
Court.
2. The Procefs preceding Sentence,
(9'6.

.3. In Remedies for Military Aﬁairx, or Mac-
ters of Arms and Honour:
I. The Court is the Court of Honour
01‘ Military Court,

2, The Proceﬁ, Sentence, and Judg—
ment.
(Now of Kittie Ufe.)

 

 

SECT.
Ilse Analyﬁs o] the Law.

 

S E C T. XLVI.

Remedies at Common Law: And Firﬁ,
0f t/Jofe without Suit.

HE Law in many Cafes provides a Re.

medy wit/gout Suit, which in general is
either,

I. By A5? of the Party.

2. By A6? in Law.

Remedies allowed by the Parties own Aét,
are in reference,
I. To Thing: Per/217ml.
2. To Tbingr Real.

I; In reference to Tbing; Perfomtl :

I. If another does wrongfully take or de*
min my Goods, my Wife, my Child, or
my Servant, I may lawfully ac: them
again, if‘I can, to I do it not rioroully.

2. So I may defend my fell. (or them) by
Force, if aﬁhulted.

2. In reference to Things Real.

In thele and fame orhe’r Cafes, the Law al-
lows a Man a Remedy Without being
driven to it, viz"

L1. In

if}!

 
 

 

 

'142 The Andy/is of the Law:

I: In Cafes of Nufance done to my Free.
hold, I may remove them, if I can,
without Riot; as,

I. To remove an Obﬁtuﬁion‘ out
of my Way.

2. Or the Over-hanging of another
Man’s Houfe over mine.

3. Or the Obﬁrué’cion of Water
running to my Mill.

2. In Cafes of Rents, I may dil’crain the
Goods or Cattle that are Levant and
Couchant upon the Tenement char-
ged therewith.

3. And To in Cafes of Cattle doing
Damage upon my Ground, Imay
diﬁrain upon my Ground Damage
Feaiant. And fo I may diﬁrain Cat~
tle that are fold for my Toll.

g. In Reference to Lama's.

I. I may difirain, and maintain my own
PolTelIion againf’c any Perfon that would
eieéi: or dilTeife me.

2. Where I have a Right or Title unto
Lands, and my Entry noc taken aWay.
I may gain the Poffeffion by my Entry.

And this neceﬁarily draws into Examina-
tion theie Two ThingsJ «viz.

1. Title: of Entry; which are either by
Breach of a Condition in Faé’c, or in
Law annex’d to an Eﬂate that l have
parted with, or my Anceﬁor.

I And
The ﬁnely/is of the Law:

And here comes in, Of Conelhiom; what
are good, and what noc ; when
and to whom it gives an Entry; and
how (lg/fro]?! or fog/pended.

1 Right: of Entry: And this lets in all thofe
Conﬁderations that concern the Titles of
Entry Congeable, of Dq/cent: that 7221! En.
try, or Continual Claim, of Avoiding De-
fcent: b} Infancy,‘ by Stat. 34. H. 8.

But regularly ;

x. In Perﬁmal Thing: in Action, ‘ as for
Deon, or Covenants, or" Promifer": Or,

2. AS to Régbts of Real Tbingg where
the Entry is by Law taken away, the
Party cannot be his own Judge, but
mull have Recourfe to the Courts of
Common Juﬂice, except in the Cafes
following, viz.

B] A6? in Low, in fome Calés with-
out Suit, the Party {hall have Re-
medy, where by his own A6? he cannot;
as,

l I. In Hing: Per/om] ; as if the
Debtor makes the-Debtee Exe-
cutor, he may pay himfelf.

2. In Tbing: Real; as where a Man’s
. Entry is taken aWay; as by De-

ﬁant, or by Difcontinuonce; yet _

if he come to the PoITeHion
without F019 or Gavin, he [hall
be remitted. ,

And here all the curious Learning
of Remitrer: comes in.

‘SECT.

3437'

 
   
 
 
  
   
   
   
  
   
    
    
   

4.44

The Ahaé/isof the Law.

 

S E C T. XLVII.

’ Concerning Remedies (It Common Law
6'}: Suit.

Itherto concerning W'rong: and Injuries in
H relation to ﬂying: both Real and Perl
ﬁnal, and Remedies for the fame wit/Jo»: Suit;
lnow come to conﬁder ofRemm’ic: b} Suit, and
the Means or Method of their Application.

Remedies 5} Suit féem to be of Two Kinds:

1. Such as the Parties provide for them.
{elves by mutual Confent.

2. Such Remedie: as the Law provides
for them.

I. Remedies that Parties provide for them-
felves are of Two Kinds:

1. By their own immediate Accord.
2. By transferring the Deciﬁon of it to
others. ’

I. The former of thefe, viz. The imme-
diate CanJ/ent of we Parties, is that which
in Law is called an Accord, which, with
Satisfaction accordingly made, is in fome
Calés of Perﬁmal Injurie: a Bar to any
other Remedy.

And

 

_ .« ﬁnk“... :u4:-:4.¢ M. .M, c- . >AAJ-‘mw 4‘..- “.1 _‘.__.,<......_..._ _ .. .c . £.<A. .
And this lets: in, the ,Learningr.of~Accorzl;
A ‘a'nid Cantora's; ,‘What are good, and
. , what not; wherevthey are a'Bar, and
'~ "Where not. : .

‘2. The "latter of thofe', viz. T he transfer.
, ring the Deciﬁon to Others; which,
' . r. If to Two, or mere, > is cilled an
‘ 'L’Arbirrament, \ ‘
2'. If to one, .an Umpirag'e;

‘- And ’here the large Learning of Ada“.
trament: and Award: ; what ‘a good
Submiiﬁon-;,, what -a ‘goodArkgvard, or
hot; Mia: Remedy upon 'it; When
and Where it: is a Bar in ,Peiﬁmz!
24mm, 85c,

'11. Secondly, Such Remedies 3;; the Law
provides, are alfo of Two Kinds, viz."

1. Such Remedies as the Law pw‘vides’x
wétbout Suit; whereof before:

2. Such Remedies as the Law pz‘oﬁdcs id ‘
the Courts of Juﬂice, - ferried by: Lawé
and according to thofe Coinﬁicutio'ns
touching Aéiiom and Suits, that the Law
has provided and in‘ﬁiruted.

And this takes in‘ thefe‘Conﬁderé’tioﬁs. we:
I. The COUIES of 7ndicatorie:,eﬁabliﬂi’d ‘
by Law, for recovering of Rights, and
redreﬁing of Wrongs. ‘
‘2. The Remedie: themﬁtive‘s by certain
Wrizsinﬁicuted by Law, and applicaxé
05 to thofe .{everai Wrongs.

.,. 3' he

 
 

The Analyﬁs of‘the Law:
3. The Proﬁcution or Purﬁtit of thofe Rt-
nmlies' in the faid Courts.

1. The Firi’t of thefe concerns the large

Learning of the yuréfdiffian of Courts:
And forafmuch as there are femoral entire
Tracts written thereon, and lhave be;
fore touched upon them, 1 “tall here
forbeat to fay any Thing further herein;
only that that Learning may with Reafon
enough he transferr’d hither, at leaﬁ fome
Particulars thereof.

. The Second, touching the Natures and

Applications of thofe Remedies, I have
in the former Sefliom', under every feve-
ral Kind of Wrang or Injury, mentioned
the refpeé’cive Remedy, and therefore the“
nor again repeat it here.

. The Third, which is the Profecution,

or Purﬁrit, of thofe Remedies, is the
Buﬁnefs of this Diviﬁon.

But before I enter upon that Matter, I
lhall premife thefe Two Things, we.

FM}, That the heft Way to meet with all
the Titles of the Law in this Buﬁnefs, will be
'to purfue the fame in the Order and Method
of the Proceedings themfelves, without any
ether Diﬂribution.

Secondly, That there are fame Things where.
in the Purl'uit of a Real Suit and Perﬁmal do“
differ; as in the Procefr, the judgment, and
the Execution : But it m’oﬂ Other Things they

do

‘ . .nggggn era drummer V'

  
ﬁkAuwﬁyﬂﬁbm. 1:7
do agree, or, at leaﬂ, the Purfuit of a lien!
Amen contains allﬂthe general Learning of a
Per/31ml Aﬁion, and much more. .
, Where th¢raforc there is a ﬁgmlDiﬂ‘erence,
I (hall obfe‘tveit by the .Way, without run:
{ting through the whole Pracecdure of a Real
and Pgrﬁmal A6312»: diﬂinéﬂy ;" and 111;“ only
hatcobfetve, that the general" Parts of 3 Suit.
“ﬂick .
1.. The Praceﬁ.
2. The Pleading.
3. The give.
4. The rial. .
The fudgmenf:
. The Execu'tiav}.
7. The" Appecl.

ii SECT‘

-

 
 

1‘48 , TbeAnaly/is ‘of the Lani:

 

S E C T. XLVIII. ‘ . .
0f Proceﬁ and Afpearing.

1, Mi, Where a Wrong is done, or a R236:
detain’d, the Party injur’d is to make
his App‘rication 0r Suit for that Remedy which
the Law ordains; and in order thereto, to
take out fuch (Writ or) Procefé as the Law
(on the Circumﬁance of his Cafe) requires.

The (Common, Uﬁmle) Ordinary Proceﬂ are
are as follow : ‘
I. In Perfonal Aaiom,

Summon: , Attachment, Di/lrefs, Copiou,
Alim, Plurz'e: (5' Exigent, and in form: it
begins with Attachment.

2. In Real Aﬁiom,‘

’Tis Summons, Gram] Cape, and fudgmenr,
or after Appearance; Peri: Cope, and
fudgmem.

'3. In Mix’cl Affiom,

In Afﬂizer, Attachment, and upon Default,
the Inqueﬂ taken by Dofoulr.
In Woﬂ, Arrow/omen: and Grand Déﬂreﬁ,
r» and an Inqméy Of the Wo , (7m,

Every

 
~ Ibe‘Analyﬁ‘s of the Lair; 14.9

'Every Procef} gives the Defendant a-Day in
Court; and this lets in thefe fevcral Things,
-‘ tuizh ‘ ~ ,
your in Court, and the Variety of it.
And incidentrto this, is,

Adjournment ; and,
Difcontinuance. .

And at that Day or 7am in Court, the De.
ﬁndant or Tenant cit/Jar appear:, or not ap-
pearr. ’

Here of Appearance, and its Diverﬁty:
1, By Guardian, (or Procbien Amy.)
. 2, By Attorney. . V
g. In Perfonp -

If there be not an Appearance,
1. Either’a’Dq’aulr is madeé

And here of the Procef: upon brfoalt,

L In Perform! Ac'h'om.
2. In Real Aﬁiom.

2. 01‘ there is an Excuﬁ: of Appearance

Aha therein raverpefm;
I. By Protec7ion, ‘ '
2. By Eﬂ‘oin prayed.

And here all the Learning of Wins;
Their Nature,‘ , - " .
Their Di-‘verﬁty ; as ‘ 5

Common E ﬂoim,
Service 19 Roy, (/J‘c.

L 3 On

 
 

159 The new: 9f ”93 144‘!-

On the Other Side, as to the Plat’miﬁ‘:
' I. The Plaintiﬁ” either appears; of,
2. Malia: Dzﬁm/t, and thereupon a Nau-
proﬁcution.

And here of the Nature and Variety of
Nonfuit: ,
Retraxit: (9'6.

 

s E c T. XLIx.
Of Pleddévg

ﬂ. 813001212591, I come to Pleading.
If both Parties appear, the Plaintiff" declare;

01’ 470143117.

And here Qf,
" . Count}.
2.. Declarations.

And the Defendang or Tcnant’ 5 Par; 15 aftcs
Imparlance to pleaJ.
And fuch Plea 15 either,

1. Dilatory; orJ
:1. To ghc Matter or Rggbt of the Com-
plamt '

11?;

 

 
11% WW 9.! did-see 15},

zﬁ, Motor} Plea: dregf fevetal Sorts»;
1. To to the j‘mifdiﬁ‘ian of the Qéﬁrt:
1. From the Piace "where the Suit
arifes. , , A
2. From the Thing inContr'overfy, as,
Ancient Demefnti ‘i ‘
2, To the Impotemy, or Eo_.:-abilit7 of
the Plainnf, which is very various; as,

$0 Alzen{E:2ﬂ]. 7‘ q
2. 0mm, {%:f§f$._4&ans.

. Excommengement.

4. And formerty Villemgz And:
5'. Prafefs’d. " ~

g. In Abatement,
And this either,
1. Of the Count.
2. Of the Writ;

. View demanded. VK
’ Apd this is a large Title?

5. Aid prayed ; V .

1. Of the King. ' ’ ' 1-
And here of ”Rage Incanﬁdte, Pp;
cendo, ‘ , _ _ '

2. Of a Common Perﬁm.
And here bf Aid. »
The different Kinds of Aid; as,
1. Of the Rewrﬁomr or Re.
mainder- Man.
2. Of the 1’41an and Ordinary.
L 4, "6. Voucher :

 
 

g m 2,222,115 frmtmz:

6 Vou‘cber: Which Is a very large Title.
And here of Voucbcr ' A
In what A&ion ,
Of what Perfon.
Counter-Plea of V ouclm’
Procef: againﬁ V aucbee.
\ , : ' Pleading of Vouc/laee.
Recovery 11'} Value.

1“ p‘~

7 Age Prier' .
I_. For Minor”): of the Demandant.

' 2. For Nanage of the Tenant.
And here of Prier in Aid of Voucéeea

gﬁm
Atid all the Learning of Age.

And herein comes alfb, W64: amI
‘wben Pleat Dilatar} are Remap-
tor],
Aftqr Damarrer -,
After Trial.
And of Plea: in Abatement after
i the laﬁ Continuance.

3:11], Plea: that go to the Rigbr or Merit of
the Complaint, are of 1‘ wo So: ts .

1. Plea: to tbe Aélion, which denies the Sub-
ﬁance of the Complaint.-

And common] make either,
i 1 A Genera We; as,
In Trcfpfzﬁ Not guilt]
In Dem upon :1 Contra&, Nil Deber.
In Aﬁmpﬁr, Non Aﬂumpﬂt
In A/ﬁee, N441 Torr, Nu! Diﬂvi m.
In

 
Tbé. ﬁrmly/[$015 5153‘ L”; "é "£53;

In Dower, Nohque ole ﬂaize éle Dower.

In aWrit_of Rigbo,.~’Thapt-he Tenant
has mo’reMglht'to hoid, than the
Demandant has to demand. ‘

3 ~2. Or a Common 'Tﬂue; as,‘ - ’7 ~

In Debt on Bond, or Aﬁion'of Cow-
mmt, Non eff-Faﬁ‘am,

In an Amze of Moﬁdanceﬂor ,
Ailc, Befoile, (ﬁve. T53! the A72-
ceffor' was never feized.

2. Plea: in Bar : Thefe tare very various and
" different, according to the féveraFKinds
Of the Tenant: or Deﬁmdont: Cede.

And lets in all the Learning of Ban,
ﬁve. as, ‘
Bow are either fuch as are,
1. Proper,
2. Common. '

Plea: in Bar: therefore Conﬁderable;
1. In their (Nature or) Matter.
2. Intheir nglioiox or Manner of Plead-a-
ing.

1. Ban, according to the Nature of the
Amok, ‘and Cafe of. the Portia, are very va-
rious and different '(Lmd therefore here all the
Learning of fuch Bow comes in) , 'yet fome-
whatt'concerning them follows:

I. Proper Bars are,

1. Such as are applicoole on!) to Real or
"Mix’a' Affiom; 35,
Fine;

Erqumf 51 Re-

 
 

154.. The (bulb/is of the Lauri
Waf Rigéf 5

Warrant], éc.
Of the Plaintif;
0: his Ame/for.

2. Such as arc proper to Perfmal Ame»:
0113i; as,
Accord with Satisfaéﬁon;
' Arbitrament ; '
Parfbrmncc,
1. Of the Condition.
2. 0f the Bond.

2.. Such Bars as are common to both, yet
diverﬁfy’d oftentimaswith fuch Diverﬁﬁ-
cations as are.- applicable to the Nature (f
:5: Alfie”; as,

x. Relcaﬁ of A517)».
2. limitation of Time by A8: of Parlian
meat claps’d. .
3. Eﬁopyelx.
And'hcrc of the fevcral Kinds of Eﬂop—
m :
P I. By Matter of Record.
2. By Matter in Pain, as,
Deeds Indented or Poll.
And here of the whole Lgarning
of Ejioppelx. ‘

a For. note, E/loppel: are not only the Mar
ter of Bars, but 0f Replicatiam, R:-
joiﬁdm, and all otherPleadingg.

II. Con~
Ibe def-Mi: 9f the Lem 155

ll. Concerning Bert gs to their .lealitie: or
Manner of Pleading, the fame common Rules
of Pleading for the moﬁ’ Part cencerns all
Kinds of Pleading. ‘

And therefore I {hall here ihortly infert
them once for all, m‘zs. -»

I. That the Plan beﬁngle, and not dqﬂble.
And here of Double Pleas.

2. That it have convenient Certainty of

" Time, Place, and Per/37):. '

3.. That it anﬂver the Demm’s or Plain.
eff"! Conn: or Plum}

4. Ti? it be fo pleaded, that it may be
277’ . ‘

When the Defendant has pleaded, what
‘ nexc follows is, The Plaintiﬁ' or Demandant
anfwers the Defendant’s Plan; and. this is’
called 5' Replication, _ " ,

‘ (And here of the general Rules, éc. of
Replicatiom,) viz.

That it be,
i . Certain.
' 2. Single. 1. ,
3. An/wering tbe Bar, éec.
And this Replication either, an
I. Denier or Tmsze: the Bar 01' Plea of _.
the Defendant; and then an Mite is ten—
der’d, which regularly mull be joined
in by the other Party, and then the
Parties are at Mike.

I And

 
 

{1’56 ‘Tbe Andy/is of the Law.
And here 2311 the Learning of Ti‘a'verﬁi
~ What is t‘raverfable, or not; how it
' muﬂ' be made, either ﬁmpl} without
‘ an Inducemenr, ‘or with an Inducement;
and concluding Ala/27w [we to the Mat:
‘ter alledged by the Defendamt

»2. Or Confeﬂet and 4001749.

And here all the Learning of Confef} and

. Amid; and then there is no I/ﬁte made

by the Replication: But pombly the

Pleadings run on to Rejoina’er, Surre.
joind’er, Rebutter, or Surrelmtter.

Fdr if [the Plaintiff replies {6 asno Iﬁ'ue
be oﬂ'er’d, this“ gives Occaﬁon to the
Defendant to rejoin,

. And here of Rtjoinden, and how he

, muﬁ maintain his Bar, and not dc.

a ,part from his Plea.
And here of Departure in Pleading;

SE C To
Ike.2lmzbfzt-oj§tlae_m 157,

 

S E CT“ L.
0f Wes.

HIL- - - H=U 3- far of Pleading: NOW by this

. - :Time, either by the Plea, .‘Replication,
Rq‘oim’er, é‘c. the Parties are difcended to an
Iffue, viz. To fomething aﬂirm’d by the
one Party, and denied by the Other, which
Aﬁrmatz’on and Denial is called an Iﬂéle; for
now the Parties have no more to doJ unlefs
a Matter happen to emerge after iju'e: join’d,
and the laf’t Continuance. -

This, if it be pleaded, is called a Plea pm’:
I; Darrein Continuance,

1 «.mt‘

So that their Bulinefs being atIﬂZJe, they have
no more to do but to expeft the Trial and
Determination of that We.

Now We: are of thefe Kinds, rains.

I. An Mu: join’d upon a Matter of Lam,
which is to be determined by the Court.

And this We is called a Demurrer.

3. An

 
.-

:gs ' me 2125,5351 mm

‘ 2; An 1914: of M, which is of Tom“
Kinds;
1'. An Igie jain’d tbuchinga Matter of
Record, on Na] tiél Record pleaded, é’c.
2.‘ An We joined touching a Matter in‘
Pei: ',‘ as, :
Whether {bah a Deed ware made.

17 Whether ﬁxch a Fcofﬁn'cntwerc axes
cured, é'c'.

 

SECT.

 
1792 Ambﬁsafzibem: 3g;

5 E C T. LI.
Of’"Trid:.

1V. a N D new Mac bdng 'ioin’d between
d1: Parties, they have no more to
do but to ‘expeéi the Trial of that Mn; and for ml: Co. 9;
than End, they have Day: of Continuance given. f 91- 3°-

Here of Continﬂanm, é":

fl‘n‘al: are of feveral Kinds, according to
the Nature of 117w, and the feveral Appoint-
ments ‘ and Direaions of the Law touching
the fame, viz.

1. Trial: by Record; as,

When Iffue is join’d, Wimbet‘ there be
any fuch Racord or no.

2'. Trial: 5] Inﬁeffion; as,

Upon ' Error to reverlé a Fine 'levy’d by
an Infant, or in Audita Quad» to avoid
a Recognizance acknowledgcd during
his Minority.

3, Trial: by Proq‘1; as,

Where Iffuc in Down is, climber (ha
Husband be living or not.

4. Triad:

 
 

(336,6 I122 AthPﬁ—Jbe Levi

4.” Trig}: 6] Exammatzon Jas .
Where an Aétion of Debt upon Aé—'

count is brought fer Things not lying
in Account

5'. Trial: 5} Certiﬁcate

1'. Of the Con/iable and Mari/11321 wh’c-
ther the Party be 10 Service ,
in. Of the Bzﬂzop, by Mandate from the
Secular Court, as in cafe Of General
Baﬂara']
So of Hikes upon the Rigbt of Mar-
ridge Between the Parties to the
Suit.
80 of leartj by Inﬂitution into
Churches.

6. Trial: 5} Butte! :
f. In Appeals.
2. ha Writ of Right.
.Trialt by 3142']
7(And this takes m a large Field of Lear:
ning. )

.‘t Trial: 5/ "far; are,
I Extraordinar}.
2.0;711'73577

" I. Extraordzwvj In Writ of Right;
In Attaint Qwera Appeal:-.
2. OrdimM: By Twelve Men.

4 Wﬁéfé‘:
T139 Ahdlyfs of we law. i6 I

Wherein Conﬁder ,

1. The Préceﬁ oo hfidg 1h Ihe JuIy,
In C. B. by. Venire Fania: (9“ H1564:

Car 1. 1

In B R by Venirngzq é“ Di/iringa: 3117-
.Mtomm. ~

2. The Tale: for Waﬁt of a full Jury 3p
pearing.

3 Challerges (If a" 301t5.
.TO the Army.
2; To the P010.“

4. The Call) of the Jury.

5 The Evidence to be glven to‘thc Jury:
What all owablc to be given;
And when

‘ » 6 Verdié? of the Im‘ors:
I. General Verdiét. . 4.
2 SpecialVerdié}. ‘ 1

7. What Defaults or Mikahiéges im-
‘ peaLh the Verdiét

8. The PO/i‘ea, o1 Retmn of the Verdiét
by the Judges of N f prim.

M ‘ SECT.

 
 

:6 2 The Aqalyﬁs of the Law:

 

,‘S E C T. LII:
Of "judgment.

V. HE Fifth Aé’t in this Buﬁnefs of Pro-
ﬁcution or Suit, is yudgmem'.

(And here the whole Learning of judg.

ments, comes in ) viz. a
I. What {hall be fuﬂicient to Ray judg-
ment.

And herein,
I. Of arreﬁing Fluffment'r. '
2. Of reverﬁng 3'14 gmems.

II. Upon what it is given; which for the
mail Part is upon thefe Premiffes (or
Precedents.)

1.- Upon Default after Default; as in
Real Aé’cions after the grand Diftrefs
1n

Waﬂ ;
Quare Impedit.
2. Upon Conﬁﬁon,
Nibil Dicit;
Nan [um Informatm‘.
3. Upon Dmmrrer.

4. Upon
max-4M: (ff/2e? La‘n‘v‘.

4. Upon Trjal of the I/I'ue; according
to the variousMethods of Trial
ebove mentioned.

III. The feveral Kinds of judgmenti.

I. In Suit: Real. ’
2. In Suit Perform].

I. Interlocutory, and not ﬁnal; as, ,
Awards upon the Writ afﬁrm’d, or
other dilator] Plear, where the judg-
ment in many Cafes only is,
Reﬁoar’rdeat ouﬂer.

2. Final, but not complmt .-

And that either,

I. Incompleat in Part, but compleat
in the Reﬁdue; as,

Where the Judgment is given
for the Thing demanded, but
the Damages not yet inqui.
red of.

z. Incomplmt in the Whole‘ ; as,

Where a Judgment is given for
the Party to recover his Da-
mages, where the Damages
are the Principal, wherein,

The Compleat judgment is not
given till the Writ of Inqui.
ry return’d.

M 2 3. Fina;

1673*

 
164- The Analyﬁs of the Ldnfi

3. Final and Compleét, with refpeé’t to thc
Aé’cion Upon which it is given.

4. Final, not only as to the Aétion upon
which it is gchn, but to “all other
Aﬁions (touching that Thing); as,

fudgment ﬁnal, in a Writ of Right
after the Mike joined, 02'.

IV. The Form: of Enhy of fudgmenn,

 

SECT.

 
— “The Hammer the L25: 1.65
s E‘C Ti L111. H
Of Executiom
VLTHE SiXth Aét in this Buﬁnefs of

Suit, is Execution.
This is a great Field of Learning;

Execution: fecm to be of Two Kinds:

1. Within the Year.
2. After the Year.

I

I. The former of thefe is alfo of Two
Kinds:
1. In reference to Lands recover’d.
2,. In reference to Debts or Damages
recovered. ,

Firft‘, In relation to Lam]: recover’d, Two
Things are conﬁderable:

I. The Writ or Mandate of Execution.
2. The Execution of the faid Writ.

1. Touching the former;

The Writ or Mandate it feif is of Two
Kinds, in relation to the E are 7660f
'yer’d :

1. If aFreehold, Hgb’Fac’ Seifz’rmm;
.2. Ha Chattel, Hab’ Fec’ Ptgﬂe’ﬂionem.

M; I

 
 

, 166 {he Angéyﬁwf the Law;

I do not here meddle with the Execution:
"pf other Kinds of,.W.rits, as QuadPer-
mimt, Repleoin, éc. becaufe they may
come in in the former Seﬁion, where
the Writs th‘emfelves are mentioned,
and they are various.

2 Touching the iatter ;

In the Execution of the Writ is conﬁde-
rable: -

I. The Ofﬁcer that is to make it.

' And here of the Ofﬁce ofSheriﬁ';|
The Manner of his Making;
His Power -, .

His Duty in making Returns, é‘c,

2. The Manner of doing it.

And here of the Pryﬁ Comitatun’
“- Sed raid: ante, Of Sheriﬂs.

Second/j, in reference to Deét: or Damage:
retort/"’4’, there ore eifo conﬁderabie;

I. The Nature of the Proceﬁ.
2. The [Manner of its Execution.
The Procef: it {elf is of the following Kinds;
And fo are the Methods or Manner of the

Execution.
( N. B. Theyuare herein join’d together.)

I. The Body 0225', by Capia: adSanf-
facfend’t '

A06?
T be Analyﬁ's of the Law;
And here of Capias’t .-
' (Where it lies 3)

How executed; 4
When with, and when without,

breaking open Doors.

What Kind of Execution it is ;
Whether without Satisfaétion.

And here of Non omitm; :
As alfo of Efcapex;

2. Good: only, by Fz'm' Facias.
And here of that Learning:

“7

How, upon what, and by whom, .

it is executed.
And whether a Return be necef-

fairy.~
3, Proﬁts of Land: only, by Lwari Facim.
And here of that:

What Proﬁt: [hall be levied;
And whereupon.

4. Part of the Lands, and all the Gordy,
by Elegit.
Here of Elegit:
Where it lies ;
What Lands extendible ;
How the Extent {hall be made ;
How return’d ;
And where a Reextent,

 

 
 

r68: Ibgﬂaab’ﬁs‘ M? W-

5, Body, Lambs and (£0045 by Extent

upon a S;4t,,Mercbant, qr Stat. Staple,

or a Rgcpgniwce in, Nature of a
1.11,: Star..SI£apJe. ‘

'And Here- 'of ’theﬁ: Executiom.
\ What they ,are ;
' The Manner of executing the
farms, (9'6.

11. Secondly, Touching Execuzibm after the
Yearpaﬂ; ’ ‘ ~ ., -~

Whgnﬁe Proceeding is,
' I. T o revive the Judgment: " And,
.2. Obtain Execution thereof ',
" By Scire Fabian
And here all the Learning of Scire

Facials.

 

SECT’.
m. 449/1591 1"” 'L“”’";‘

 

.5 E cT. LIV,'
90f Redreﬁ of Injurier, 5} Error, Sic,

VII. Lad/Hy, I come to Remedies that Per-

fons have, to be reliev’d againﬂ:
thefe‘ Proceedings (afor'efaid), in cafe they
have juﬂ Caufe f0 to be. ‘ "

. And they are thefe, viz...

1. By Writ qf Error; to remove the Re.
cord into a fuperior Court, to examine
the Errors, in cafe the inferior Court
has erred in Point of Proceeding, judg.
mm, or Execution awarded.

And here comes in that great Title Error,
with its Adjuna: and Appemlz'mu‘2 «lie.
I. Where it lies.
;. When it lies.
3. In what; Court. ,
4. When ’65 a Superﬁdeas, dye; '
5. What afﬁg’nable for Error. /
6. The Procizfr to bring in the Party
that recover’d.
7. TheJudgment therein, both,
' 1. When the former isaﬂirm’d. And,
2. When it is revers’d. And,

8. Execution of Judgment upon the
ﬂﬁrmmion or Raver/221.

And here of Execution: in Error. .

' ' W ' z. B}

”169

 
 

no The ﬁnely/is of the Lani

2. B] Writ of Attaint, where the Jurors
give a feel“: Verdiét.

And here all Learning of Attaintr,

3." B}. Writ of Diﬁ-ee't, where the Judgment
is by Default, and the Party never duly
fummon’d.

4. Where the Party has 1011 by Default in
a RealAttion, yet has good Right, when
yet, by reafon of his Default, he did not

cw it; we.

1. ~13] Writ of Rigbt for him that bit by
Default, or his Heir, having 3- Fee.
Simple.

2, B] Wit «f Quad ez' Deforceat, if he
had only an Eﬁate for [#2, or in Tail.

3. B] Eormedon in Defender, Reverter,
Remainder. Vida ante.

And here at large the Learning of
Fauxiﬁer dc Recovery,

5. Where the Party is put out by Execution,
wherein he had no Day to plead or an-
fwer, as in 'Eecutiom by Capiar, Elegz't,
Statute Merchant, (be.

By Audits Querela.

And here of the whole Learning of
Audita Qeerela’r.

I And

 
e The Analyﬁs of the Law; , 1 71

And thus far of the Partition: of the Title:
pf the Law of England, and the Analjfz}
thereof, in relation to R236“, éc. of a Civil
Nature.

As, to Pleas of tbe Crown, and Mater: Cri.
minal, that {hould here enfue, they are al-
ready drawn up, or perfeé’ced , by me in a
ﬂuorc Traé’c, Of Plea: of tbe Crown, which I
ihall add to this in due Time.

 

FINIS.

 

 

 
 

 
 

A J

- . 1

"BOOK 5' printed for
J. Walthoe.

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.i High Court of Chancery : The
Second Edition, carefully correéted from
the many grofs, Errors of the former Editioni
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2. Cowall’slnterpreter of Words and Terms
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3. Pufendorﬁ‘of the Law of Nature and N2-
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4. Sir Orlando Bridgman’s Conveyances : ‘
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in England. Drawn and approved by that
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The Fourth Edition, with large Additions.

5'- Sir Edward Lutchbe’s Entries: Con-
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Court of divers Exceptions taken to Pleadings,
and Upon Other Matters in Law ariﬁng for
the moft Part in the Court of Common-»Pleas,
from the 34 Car II. to the Second Year of
Her prefent Majeﬂy Queen Anne. In Two

Volumes;

 
 

Volumes; a proved of by the hard Keeper
and all the udges. A K ,

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17. Char.

 

 
 

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20. The Hii’tory of the World, Eccleﬁa—
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22. Gloﬂbgrapbia Anglicana Nova: Or, A
Dié'tiona'ry interpreting fuc’h hard Words Of
whatever Langhage as are at prefent ufed in
the Englth Tongue; with their Etymologies,
Deﬁnitions, (yo.

2 3. Moral Effays on fome of the moﬂ cu.
rious and ﬁgniﬁcant Englijh, Scotch and F0—
reign Preve’rb‘s. By Sam, Palmer, Presbyter
of the'Church of England.

24. Effays upon feveral Suhieéts, in Profe
and Verfe. Written by the Lady Cbudlez‘gb.

2;. Dr. Spmtt’s (now Bilhop of Roche/fer)
Sermons on feveral Occaﬁons. The Second
Edition,

4